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Gift of

Yale Review

1917

FOURTEENTH REPORT

OF THE

BUREAU OF ARCHIVES

FOR THE

.^

PROVINCE OF ONTARIO

BY
ALEXANDER FRASER, M.A., LL.D., Litt. D., F.S.A. Scot. (Edin.), etc.
Provincial Archivist

1917

PRINTED BY ORDER OF
THE LEGISLATIVE ASSEMBLY OF ONTARIO

TORONTO: /
Primed and Published by A. T. WILGRESS, Printer to the idng's Most Excellent Majesty
19 18

FOURTEENTH REPORT

OF THE

BUREAU OF ARCHIVES

FOR THE

PROVINCE OF ONTARIO

BY
ALEXANDER FRASER, M.A., LL.D., Litt. D., F.S.A. Scot. (Edin.), etc.
Provincial Archivist

1917

PRINTED BY ORDER OF
THE LEGISLATIVE ASSEMBLY OF ONTARIO

TORONTO:
Printed and Published by A. T. WILGRESS, Printer to the King's Most Excellent Majesty
19 18

To His Honour Colonel Sie John Stkatheaen Hendeie, K.C.M.G-.,
C.V.O., LL.D., etc.,
Lieutenant-Governor of the Province of Ontario.
May it Please Youe Honoue :
I have pleasure to present herewith for the consideration of Your Honour
the Eeport of the Bureau of Archives for Ontario for 1917^
Eespeetfully submitted,
THOS. W. McGAEEY,
Treasurer of Ontario.
Toronto, 1918.

1^

The Honourable Thomas AV. McGaeey, Esq., K.C, M.P.P., Etc.
Treasurer of Ontario.
SiE, — I have the honour to submit the following Eeport in connection with
the Bureau of Archives for the Province of Ontario for 1917.
I have the honour to be. Sir,
Your obedient servant,
ALEXANDEE FEASEE,
Provincial Archivist.
Toronto, 31st December. 1917.

Vi PEEPATUEY.

of long ago. My ;istonislimeut may be imagined when 1 discovered that the book
was one uf the long lost j\iinute Books uf the C;ouit of Common Pleas of the
Western Dislrjct, and there on the hrst page was the name of the ' Pirst Judge/
the Honourable W'ui. Dummer Powell. lAlr. Burton aud Mr. Jackson were stand
ing near me iii the narrow vault, the latter holding the candle and telling the
Detroit visitor of thc age and glory of Osgoode Hall. 1 suppressed my rising
feelings until all tlie papers iiad been put back in the box except eight thin folios,
one after another of which 1 had rescued from the orderiess heap, tattered,
and apparently useless, but in reality of priceless value, being the original records
of our oldest constituted Courts for the old Districts of Hesse, Mecklenburg and
Luneburg in Upper Canada.
" I asked Mr. Burton to look at one of tlie books, remarking that he might
feel interested in it. He opened it, and when he saw the holograph of John Munro,
a relative, on one of the pages he gave up the effort to appear calm, and in the
circumstances was to be excused for having always known that the precious records
were there."
In going over the Term Books of the Court of King's Bench, in 1913, the
first volume of the Eecords of the Court 'of Common Pleas for Hesse, dating from
1789, was found by the Honourable Mr. Justice Eiddell, whose learned Intro
duction and Xotcs render it unnecessary, here, to refer to the rare value of these
documents. When the succeeding instalments shall have been published a rich
vein, practically untouched, will be, for the first time, open for historical research
to the student, not only of our legal institutions, but also of certain important
, conditions and customs of pioneer life in Upper Canada.

ALEXAXDEE EEASEE.

Ov^\ar\o CouiAs.

RECORDS

OF THE

Early Courts of Justice

OF

UPPER CANADA

INTBODUCTION.
When in 1760 the conquest of Canada by Britain was complete, what
became, thirty-two years afterwards, the Province of Upper Canada and is
now the Province of Ontario, was practically destitute of inhabitants, except
the Indian tribes, and a very few French settlers on the left shore of the Eiver
Detroit, the territory however passed by the Capitulation. All Canada was
under a species of military rule till 1763.
Jn 1763, the Treaty of Paris confirmed the British ownership of
Canada, making the sovereignty de jure which had theretofore been de
facto. On October 7, 1763, a Eoyal proclamation was issued forming out
of the territory recently acquired in North America and adjacent Islands, four
" Governments ;" the only one with which we have here concern was the
" Government of Quebec." This was " bounded on the Labrador coast by the
Eiver St. John, and from thence by a line drawn from the head of that Eiver
through the Lake St. John to the south end of the Eiver Nippissim, from
whence the said Line crossing the Eiver St. Lawrence and the Lake Champlain
in 45 Degrees of north latitude passes along the high lands, which divide
the rivers that empty themselves into the said Eiver St. Lawrence from those
which fall into the sea ; and also along the north coast to the Baye des
Chaleurs and the coast of the Gulph of St. Lawrence to Cape Eosieres, and
from thence crossing the mouth of the Eiver St. Lawrence by the west end
of the Island of Anticosti, terminates at the aforesaid Eiver St. John." (^) It
is. probable that those who drew this description had no clear conception of the
geography of Canada. At all events the boundary, "the high lands" which
divide the rivers which empty themselves into the St. Lawrence from those
which fall into \he sea, was the cause of much difficulty when later on the
same boundary was used to divide the United States from British territory in
the treaty of 1783, the difficulty being terminated only by the Ashburton
Treaty of 1843. But the new Government, or Province of Quebec, undoubtedly
contained all the territory afterwards the Province, of Upper Canada.
This Eoyal proclamation further stated that the Governors had been in
structed to call General Assemblies, which with the Governors and Councils
should " Make, constitute and ordain laws, statutes and ordinances for the
public peace, welfare and good, government of our said colonies ... as
near as may be agreeable to the laws of England . . . and in the
meantime, and until such assemblies can be called ... all persons in
habiting in or resorting to our said colonies may confide in our royal pro
tection for the enjoyment of the benefit of the laws of our realm of England."'
This introduction of the -laws of England was unobjectionable in the
other three, governments, or nearly so, but in Canada there was a large and
homogeneous French population wedded to its own laws and customs. The
criminal law of England the French-Canadian did not object to ; savage as it
was, it was less so than his own, but the English law in civil matters he never
willingly accepted. He much preferred and he insisted on having his own law,
based chiefly on the coutume de Paris, and ultimately on the civil law of
(') For References see page 22, Introduction. [11
9. A

UPPEE CANADA COUET EECOEDS.

Eome; he could not, for example, understand how the English thought their
property safer in the determination of tailors and shoemakers than in that of
their judges. ,
There ensued an agitation for the restitution of the French-Canadian law,
which continued more or less lively until it was ultimately successful. But
there was also a steady counter-movement on the part of the " old subjects,"
i.e., those who had come from the British Isles or the British American
colonies. Many of these had come to Canada (and more perhaps affected to
have come) relying upon the promise contained in the royal proclamation of
1763 that all resorting to the new Government might confide in protection for
the enjoyment of the laws of England. Many of the " old subjects " also
elainored far the calling of a General Assembly which had been (in effect)
promised in the proclamation. While there were exceptions on both sides, it
may be said generally that the English-speaking " old subjects " desired, a
Legislative Assembly and the retention of the English civil law, the French-
speaking " new subjects " had no desire for an Assembly and desired the
return of their former civil law. After much consideration and balancing of
advantages, it was decided to yield to the desires of the French-Canadians;
and in 1774 the celebrated Quebec Act was passed by the Imperial Parlia
ment (^).
The Quebec Act, by section 4, provided that the Eoyal proclamation
of 1763, so far as it related to the Province of Quebec, the Governor's com
mission and all ordinances relative to the civil government and administra
tion of justice in the Province should be revoked, annulled and made void
from and after May 1, 1775. Section 8 provided that " all His Majesty's
Canadian subjects within the Province of Quebec . . . may . . . hold and
enjoy their property and possessions, together with all customs and usages re
lative thereto, and all other their civil rights in as large, ample and beneficial
manner as if the said proclamation, commissions, ordinances and other acts
and instruments had not been made . . . and that in all matters of contro
versy relative to property and civil rights, resort should be had to the laws
of Canada as the rule for the decision of the same . . ." (an exception being
made of lands granted or to be granted in free and common soccage. the
ordinary English tenure).
Section II reciting that " the certainty and lenity of the criminal law
of England, and the benefit and advantages resulting from the use of it,
have been sensibly felt by the inhabitants " provided " that the same shall
continue to be administered and shall be observed as law in the Province
of Quebec." Section 12 recited that "it is for the present inexpedient to call an
Assembly" and gave power to a Council which was to be appointed to
make " ordinances for the peace, welfare and good government of the
province with the consent of His Majesty's Governor."
This Act was received with acclaim by the French-Canadians.- but most
of the English-speaking inhabitants of the province strongly objected to it.
The American Eevolution for a time prevented much being done by the
English-speaking, but they were never reconciled to the change.
An agitation sometimes more, sometimes less animated was kepi up for
an .¦Assembly : the return of the English law was also demanded and even

UPPEE CANADA COUET EECOEDS.

more insistently than an Assembly. In 1791 was passed the Canada Act,
or Constitutional Act. Section 2, after reciting the Eoyal intention to
divide the Province of Quebec into two provinces, to be called the Province
of Upper Canada and the Province of Lower Canada, recited that there
should be in each province a Legislative Council appointed and an Assembly
elected which should have power " to make laws for the peace, welfare and
good govemment thereof." Section 33 provided that " all laws, statutes
and ordiuances which shall be in force on the day to be fixed .... for the
commencement of this Act, within the said provinces or either of them,
or in any part thereof .... shall remain and continue to be of the same
force, authority and effect in each of the said provinces respectively as if
this Act had not been made .... and except in so far as the same are
expressly repealed or varied by this Act or in so far as the same shall or
may hereafter by virtue of ... . this Act be repealed or varied by His
Majesty, his heirs or successors by and with the advice and consent of the
Legislative Councils and Assemblies of the said provinces respectively . . . ."
in other words the laws should remain until changed by the parliaments
of the provinces, each province to act independently of the other. The
first Parliament in Upper Canada met at Newark (now Niagara-on-the-Lake)
and in its first Act (^) enacted " that from and after the passing of this Act
the .... provision (that in all matters of controversy relative to property
and civil rights, resort should be had to the laws of Canada as the rule for
the decision of the same) contained in the (Quebec) Act be and the same is
hereby repealed, and the authority of the said laws of Canada and every
part thereof as forming a rule of decision in all matters of controversy
relative to property and civil rights shall be annulled, made void and
abolished throughout this province . . . ." Section 3 provided " that from
and after the passing of this Act, in all matters of controversy relative to
property and civil rights resort shall be had to the laws of England as
the rule for the decision of the same." Section 6 negatived the introduction
of " any of the laws of England respecting the maintenance of the poor,
or respecting bankrupts."
No such repeal of the provisions of the Quebec Act was passed by the
Parliament of Lower Canada.
The effect is that in both this province and in Lower Canada (or
Quebec) the criminal law is the criminal law of England as it existed in
1774, modified by legislation in the old Province of Quebec before 1792 and
by the legislature of the provinces respectively from 1793 till 1849, by the
Province of Canada from 1841 till 1866 and since July 1, 1867, by the
Dominion of Canada, "in some eases by the Province of Ontario. The law
in civil matters in this province is the law of England (with certain statutory
exceptions)' as it existed October 15, 1792, when the Statute of 1793 was
assented to by the Lieutenant-Governor, John Graves Simcoe, (*) modified
by the legislation of the Parliament of Upper Canada, 1792-1840; of the
Province of Canada, 1841-1866, and since July 1, 1867, of the Province
of Ontario and in certain matters of the Dominion of Canada (^).
The description given in the proclamation of 1763 of the Government
of Quebec is vague in some respects. It was, however, considered to include
much if not all of what is now Michigan, Wisconsin, Illinois and Indiana.

UPPEE CANADA COUET EECOEDS.

Detroit and Michilimacinac were taken possession of, and had Governors or
Lieutenant-Governors subordinate to the authorities at Quebec; the chief
settlements further south were at Vincennes, on the Wabash and Koskaskia
on the Mississippi, near the mouth of the Koskaskia Eiver (washed away
in 1860) (•=).
In the older settled parts, under the French rule, Canada had been
divided for administrative purposes into three districts, Quebec, Three Elvers
and Montreal. These were retained by the conquerors; but when the time
came for purely civil administration the District of Three Elvers disappeared
and the province was in 1764 divided into two districts, those of Quebec
and Montreal, " bounded by the Eiver Godfrey on the south and by the
Eiver St. Maurice on the north side." This, of course, means by the Eiver
Godfrey on^ the south side of the St. Lawrence and on the north side of
the. St. Lawrence by the Eiver St. Maurice. The District of Montreal
stretched to the west as far as the Province of Quebec, i.e., Canada extended.
This was not satisfactory; even before the Declaration of Independence it
was contemplated to form five new districts, at "the Illinois, St. Vincennes,
Detroit, Missilimakinac and Gaspee" respectively, and Sir Guy Carleton,
the first Governor after the pas.sing of the Quebec Act, was in 1775-instructed
in that sense.
This scheme came to naught. The American revolution had a rapid and
unexpected success. The celebrated George Eogers Clark captured Koskaskia
for the Colonists in 1778, A'incennes fell the following year, and the fate of
"the Illinois "' was settled ('). The whole AVest was in turmoil. More than
once Detroit and Michilimacinac were in peril inter arma silent leges and
there was neither time nor money to erect new institutions.
Then came the treatv of peace in 1783, which awarded to the United
States all the territory south of the great lakes and to the right of the
middle line of these connecting waters. Detroit and Michilimacinac were
also lost to Britain. Nothing came of the project, but the Western country
continued to fill up, and it was exceedingly inconvenient to have all the
litigation of that enormous territory required to come to Montreal for trial.
The cost Avas almost prohibitive, and the result was that justice was delayed
and in many cases actually denied against the provisions of Magna Charta.
Detroit and Michilimacinac had 'not been given up by the British in
pursuance of Article II of the Treaty of Paris, 1763 (^). Detroit at least
was a busy place and consjderaljle litigation originated there.
The Eoyal Instructions to Sir Guy Carleton, now Lord Dorchester, of
August 23rd, 1786, contemplated a new district at Detroit but -nothing
was done for a time, but a patent was issued under- the Great Seal of the
Province, July 39, 1788, forming five new districts, one the District of
Gaspe, and four west of the Ottawa Eiver in what is now Ontario. These
districts were Luneburg, Mecklenburg, Nassau and Hesse.
The districts were arranged in great measure about the centres of
immigration and population, Luneburg (not Lunenburg or Lunenburo-h)
had what is now Cornwall as its nucleus, Mccklenburgh, had Kingston (or
Cataraqui), Nassau, Niasjara (Newark) and Hesse, Detroit. It is quite
true that in legal strictness, Hesse could not contain Detroit, as that was
American territory, but Britain still held it and exercised control and

UPPEE CANADA COUET EECOEDS.

ownership over it, and therefore a British governor must needs look upon
it as British territory.
All was so far in the Province of Quebec; but a message was sent to
the Imperial Parliament (February 25, 1791) expressing the Eoyal intention
to divide the Province of Quebec into two separate provinces, the province
of Upper Canada and that of Lower Canada. After the passing of the
Canada Act, an Order in Council was passed dividing the Province of
Quebec accordingly, and directing a royal warrant to issue to authorize
the Governor or Lieutenant-Governor of the Province of Quebec to fix such
day for the commencement of the effect of the Canada Act in the new
provinces. A rojal warrant issued to Lord Dorchester authorizing him to
fix such day. He did not go at once to Canada, and General Alured. Clarke,
Lieutenant-Governor, issued November 18, 1791, a proclamation fixing Mon
day, December 26, 1791, as the day. The provinces were technically and in law
formed August 24, 1791, by the Order in Council, but there was no change
in fact till after December 26, 1791. The province of Upper Canada received
the four districts of Luneburg, Mecklenburg, Nassau and Hesse; these names
were changed in 1792 by provincial statute to Eastern, Midland, Home and
Western. Immediately after the conquest courts were established by the conqueror
— these, some of which were more or less military in ¦ their character were
temporary only and disappeared shortly after the possession of~the country
was legalized by the treaty of Utrecht, 1763, and no further attention need
be paid to them.
The Quebec Act of 1774 abolished as of May 1, 1775, an existing
ordinance revoking all commissions to judges, etc., and generally destroyed
the existing system. The courts, then, which had been formed before the
passing of the Quebec Act, did not continue, and mention of them is made
simply to complete the story. As we have seen, the law of England was
introduced by the Eoyal proclamation of 1763, both civil and criminal;
but the Quebec Act in 1774 reintroducing the Canadian Civil law, leaving the
criminal law of England still in force, it will therefore be convenient to
consider the courts of civil jurisdiction and those of criminal jurisdiction
separately. A. CouETS OF criminal juhisdiction : The proclamation stated " AVe
have given power under our Great Seal to the Governor of our said colonies
respectively to erect and constitute with the advice of our said councils
respectively, courts of judicature and public justice within our said colonies
for hearing and determining all causes as well criminal as civil, according
to law and equity, and as near as may be agreeable to the laws of England,
with liberty to all persons who may think themselves aggrieved by the sen
tences of such courts in all civil cases, to appeal, under the usual limitations
and restrictions, to us in our Privy Council." (").
The King alone has the right of erecting courts of judicature; but he
may give this right to any .of his servants singly or collectively. The King's
commission to General James Murray creating him " Captain General and
Govemor in Chief in and over our Province of Quebec in America," gave
him " full power and authority, with the advice and consent of our said council,
to erect, constitute and establish such and so many courts of judicature and

UPPEE CANADA COUET EECOEDS.

publick justice within our said province under your government as you and
they may think fit and necessary for the hearing and determining oi ail
causes as well criminal as civil according to law and equity .... and ....
to constitute and appoint judges and in all eases requisite commissioners of
Oyer and Terminer, Justices of the Peace, Sherriffs and other necessary
officers and ministers in our said province for the better administration of
justice and putting the laws in execution . . . ." The Eoyal Instructions to
xMurray, section 16, provide " And whereas by our .... commission ....
you are authorized and empowered, with the advice and consent of our council,
to constitute and appoint courts of judicature and justice; it is therefore our
will and pleasure that you do as soon as possible, apply your attention to
these great and important objects." He was particularly instructed, section
"i3, " to take especial care that in all courts where you are authorized to
preside, justice be impartially administered; and that in all other courts
established within our said province, all judges and other persons therein
concerned do likewise perform their several duties without any delay or
partiality." The Governor and Council did not delay (there was no Legislative
Assembly, and the Parliament was composed of Governor and Council only).
They could not act immediately — the Treaty of Paris (October 8, 1763) had
specified that French-Canadians were to be allowed eighteen months to leave
Canada if they so desired. Accordingly, civil government was not actually
established in Quebec until August 10, 1764, but on September 7, 1764, an
ordinance was passed which in addition to a court of purely civil jurisdiction
(which is passed over for the moment) established a " Sup'erior Court of
.Judicature or Court of King's Bench .... to sit and hold terms in the
Town of Quebec twice in every year, viz. : one to begin on the 21st day of
January, called Hillary Term, the other the 31st day of June, called Trinity
Term." In this court the Chief Justice of the province was to preside
" with power and au^ority to hear and determine all' criminal and all civil
causes agreeable to the laws of England and to the ordinances of this province
.... in all tryals in this court, all His Majesty's subjects in this colony
to be admitted on juries without distinction."
It was also provided that " His Majesty's Chief Justice once in every
year should hold a court of assize and general gaol delivery soon after Hillarj-
Term, at the towns of Montreal and Trois-Bivieres for "the more easy and
convenient distribution of justice to His Majesty's subjects in those distant
parts of the province."
Inferior courts of criminal jurisdiction are contemplated, the courts of
quarter sessions : as there was not at the time " a sufiBeient number of
Protestant subjects resident in the intended district of Trois-Eivieres qualified
to be Justices of the Peace and to hold Quarter Sessions " it was ordained
that the province should " until there may be a sufficient number of persons
settled at or near Trois-Eivieres duly qualified to execute the office of Justices
of the Peace and the power of holding such Quarter Sessions .... (or until
His Majesty's pleasure be known in that behalf)" there should be only two
districts in the province, the districts of Quebec and Montreal divided by
the rivers Godfrey and St. Maurice. Justices of the Peace who formed the
Courts of Quarter Sessions (or Quarter Sessions of the Peace] or Sessions

UPPEE CANADA COUET EECOEDS.

or Sessions of the Peace) had also certain powers in criminal matters " out
of sessions," that is, sitting apart from the mass of their fellow Justices
of the Peace. There were thus four courts of criminal jurisdiction (a) the
Court of King's Bench, (&) a Court of General Gaol Delivery, (c) Quarter
Sessions in each of the two Districts, and {d) Justices of the Peace out of
Quarter Sessions in each District.
To understand these fully the contemporary English law must be con
sidered. (a) The Court of King's Bench in England was historically a portion
of the Curia, Eegis, Aula Eegis, or Council, of the King. At this time it
had in addition to civil jurisdiction on its plea side (which will be passed
over for the moment), also on its crown side " full cognizance of all criminal
causes from high treason down to the most trivial misdemeanour or breach
of the peace." The judges of the court are the supreme coroners of the
kingdom, and are Justices of the Peace ex officio. They like the other King's
Courts at first generally followed the King wherever he might be in nis
kingdom. By chapter 17 of Magna Charta it was agreed that " Common
pleas shall not follow our Court, but shall be held in some fixed place," and
thereafter the Court of Common Pleas, which had already ceased in great
measure to follow the King's Court and had established itself at Westminster,
continued to sit at Westminster and at Westminster only. But no such pro
vision was made for the Court of King's Bench. For some years, however,
the Court of King's Bench also held its sittings at Westminster; but in
1234, Henry III began toi have it follow in his train, holding its sittings
where he might be for the time being. This practice was followed by his
son and successor, Edward I, who in 1300 ordered the justices of his bench
to follow him ; and it was not till some years later that the Court of King's
Bench came to have its sittings permanently in Westminster. Eve^ then
there was no prohibition, statutory or otherwise, against it sitting elsewhere,
and it is known -that it did so occasionally, e.g., it removed to Oxford
in 1665 on account of the plague; but in general, the court did not sit
elsewhere than in Westminster.
Every Englishman had a right to be tried by his peers and by a jury
of " the vicinage," i.e., a jury of the county in which the alleged offence was
committed. Accordingly, when a case was to be tried, a jury of the county
had to be called; to send a jury from a remote county to Westminster was
' as intolerable a burden as it would be to have all accused' persons sent there
for trial. This, however, was done when the case was to be tried by the.
Court of King's Bench at Westminster and a similar inconvenience was
experienced when the court was peripatetic.
Accordingly, very early, commissions were issued for the holding of
courts of Oyer and Terminer and courts of General Gaol and courts of
General Gaol Delivery for the trial of alleged crimes in or near the place
of their occurrence. The commission of Oyer and Terminer authorized the
persons named in the commission to try all cases in which the indictments
had been found before them; that of General Gaol Delivery authorized them
to try all cases of crime alleged against anyone in the gaol of the place
named in the commission. From and after 1328, at the latest, commissions
of Oyer and Terminer and of General Gar«' Delivery regularly issued to

UPPEE CANADA COUET EECOEDS.

Judges of Assize aud formed part of the authority under which they pei'-
formed their office.
(&) The court of General Gaol Delivery is the court held under the
commission of General Gaol Delivery. In the new Province of Quebec, there
was to be one held by the Chief Justice of the province with the Court of
Assize in Montreal once a year. There was no need of a Court of General
. Gaol Delivery at Quebec ; the Court of King's Bench sat there as the Court of
King's Bench, just as the English Court of King's Bench sat at Westminster,
and in certain cases tried criminal cases there. .
(c) The Courts of Quarter Sessions were holden by Justices of the
Peace. Justices of the Peace date back to the time of Edward III and
were first " assigned " under the statute of 132T. AVithin three years their
power to receive indictments was acknowledged, but while some of them seem
to have been included in commissions of Oyer and Terminer and .General
Gaol Delivery, it was not till 1344 that they obtained any judicial power;
in 1350 they were required to hold their sessions in every county four times
a year, and at all times needful to enforce the Statute of Labourers, and in
1360 they received authority " to hear and determine at the King's suit
all manner of felonies and trespasses done in the same county.'" Ever since
there have been meetings in each courfty of the Justices of the Peace in
their sessions which were called Quarter Sessions, as they met four times
in every year.
At the time now under discussion the Court of Quarter Sessions, while
it had in theory the right to try all felonies, had ceased to exercise that
power in cases involving the death penalty. There is no doubt that as late as
the 16th century many persons were hanged on the sentence of the Quarter
Sessions, but in Blackstone's time he informs us " they seldom if ever try
any greater offences than small felonies within the benefit of clergy, their
commission providing that if any ease of difficulty arises they shall not
proceed to judgment but in the presence of one of the justices of the Court
of King's Bench or Common Pleas or one of the judges of Assize, and
therefore murders and other capital felonies are usually remitted for a more
solemn trial to the assizes." The form of the commission of the peace at the
time would now be considered curious. It gave the Justices of the peace
(in their Sessions) power to enquire by the oath of good and lawful men
of their county " of all and all manner of felonies, poisonings, inchantments,
sorceries, arts, magic, trespasses, forestallings, regratings, ingrossings and
extortions whatsoever. And of all and singular other crimes and offences,
etc., and also of all those who have there lain in wait or hereafter
shall presume to lie in wait to maim or cut or kill our people. And
also of all victuallers and all and singular other persons who in the
abuse of weights and measures or in setting victuals against the form
of the ordinances and statutes .... have offended or attempted
and the same offenders and every of them for their offences by fines, ransoms
amarciaments, forfeitures and other means .... to chastise and offend."
(d) Justices of the Peace, in addition to trying with a jury at their
Quarter Sessions, had the power, sometimes one alone, sometimes two together
to try certain inferior offences without a jury. These powers were generally
given by statute, and are too numerous to be here enumerated. WTiere two

UPPEE CANADA COUET EECOEDS.

or more Justices of the Peace met (not in the Quarter Sessions) for the execu
tion of some power vested in them by law, the meeting was called a Petty or
Petit Session, while a Special Session was a meeting holden on a special occa
sion for the execution of some particular branch of their authority.
Before leaving the criminal courts it should be said that the Court of
King's Bench had a kind of supervision over all the lower courts ; proceedings
in all inferior courts could be removed into the Court of King's Bench
as proper cases by a writ of certiorari.
B. Civil Couets: It has already been stated that the Superior Court
of Judicature — Court of King's Bench, erected by the ordinance we have
been considering, had jurisdiction in all civil as well as in all criminal
causes. The Chief Justice of the Province, in addition to presiding
in the Court of King's Bench, also held a Court of Assize at Montreal and
Three Eivers once a year. This court tried but did not deliver judgment in
cases in the Court of King's Bench coming from these places. But there was
another court instituted by that ordinance, " an inferior Court of Judicature
or Court of Common Pleas .... with power and authority to determine all
property above the value of ten pounds, with a liberty of appeal' to either
party to the Superior Court or Court of King's Bench where the matter
in contest is of the value of twenty pounds or upwards. All tryals in this
court to be by juries if demanded by either party ; and the court to sit and hold
two terms in every year at the town of Quebec at the same time with the
Superior Court or Court of King's Bench. AVhere the matter in contest in
this court is above the value of three hundred pounds sterling, either party
may (if they think proper) appeal to the Governor and Council immediately,
and from the Governor and Council an appeal lies to the King and Council,
where the matter in contest is of the value of five hundred pounds sterling
or upwards. " The judges in this court are to determine agreeable to equity, having
regard nevertheless to the laws of England as far as circumstances and
present situation of things will admit, until such time as proper ordinances
for the information of the people can be established by the Governor and
Council agreeable to the laws' of England. The French laws and customs
to be allowed and admitted in all causes in this court between the natives
of this province where the cause of action arose before the first day of
October, 1764. Canadian Advocates, Proctors, etc., may practice in this
court." A fourth kind of civil court erected by this ordinance was the Quarter
Sessions in each district. The Justices of the Peace of each district were
given power to hold Quarter Sessions in their respective districts every three
months in ev^ry year, three justices to be a quorum ; at these courts were
heard and determined " all causes and matters of property which shall be
above ,the sum of £10 ($40.00) and not exceeding £30 ($120.00) current
money of Quebec, with liberty to appeal to either party to the Superior
Court or Court of King's Bench."
The right of appeal is given in cases ih the Quarter Sessions of £10
Quebec currency and over; in the Common Pleas of £20 (probably Quebec
currency) .
3a

10 UPPEE CANADA COUET EECOEDS.
The fifth and last kind of Court of Civil Jurisdiction erected by this
ordinance was that of Justices of the Peace in each district. Any one Justice
of the Peace could hear and determine (within his district) all causes or
matters of property not exceeding £5 ($20.00) (.,)uebec currency, and any two
all causes or matters of property not exceeding £10 ($40.00) no ajipeal being
allowed in either case.
The courts, then, of Civil Jurisdiction were (a) thc Tourt of King's
Bench sitting at Quebec twice a year; (&) the Court ot A-size sitting at
Montreal and Three Eivers once a year; (c) the Court of Common Pleas
sitting at Quebec twice a year; (d) two Courts of Quarter Sessions sitting
at Quebec and Montreal respectively four times a year; (e) an indefinite
number of Justices of the Peace courts, sitting where and when convenient.
(ft) The Quebec Court of King's Bench had for its prototype the Court
of King's Bench in England which had civil as well as criminal jurisdiction.
AA^hen the Court of Common Pleas (or Common Bench) spht off from the
remainder of the Aula Eegis it took with it the jurisdiction over real actions,
that is, actions which concern the right of freehold or the realtj-, and over these
it retained exclusive jurisdiction. But while the Court of Common Pleas had
jurisdiction over all other pleas between man and man, the Court of King's
Bench also asserted jurisdiction over many of these also — it took " cognizance
of all actions of trespass or other injury alleged to be committed vi et armis
(with force of arms) of actions for forgery of deeds, maintenance, conspiracy,
deceit and actions on the case which allege any falsity or fraud; all which
savour of a criminal nature."
Long before the times of which we are now writing, the Court of King's
Bench had acquired jurisdiction over all kinds of personal actions, and while
it never entertained what were technically known as real actions, the title to
land could be tried in this court by the operation of certain legal fictions,
so that for all practical purposes the Court of King's Bench had at this time
in England full civil as well as full criminal jurisdiction.
The Quebec Court of King's Bench was given the like power. All cases in
the new court were to be tried by a jury and decided according to the Laws
of England and the ordinances of the province.
(b) There is no need of going into the most remote history of the
English Courts ; 1285 is sufficiently far back.
AVhen the pleadings in the Court of King's Bench or the Court of
Common Pleas were completed, and it was known what was to be tried, it
might be that a trial at bar was ordered, i.e.. a trial before the court itself
at Westminster or wherever the court sat. Tliis necessitated sendino- a jury
of the vicinage up to Wesiminster, an unreasonable burden for -those in
distant parts of the realm.
By the Statute of Westminster, 2nd, it was provided in 1285 that two
justices should be assigned, before whom and no other Assizes of Novel
Disseisin, Mort-d'aneestor and Attaints should be taken, and that these should
take the Assizes and Attaints, not more than three times in the year AVlien
the trials were had the records were to be returned' into the court whence
they came and judgment was entered in that court.
This may be taken as the formal beginning- of the nisi prin« system •
it was made more effective in 1340 by the well known statute of that year"

UPPEE CANADA COUET EECOEDS. 11
34 Edward III, st. 1, C 16. The meaning of this is that when the pleadings
in an action in the Court of King's Bench or Common Pleas (also later in
the Exchequer) were completed and it was not to be tried at Bar, the Eecord
of Pleadings was sent to the county where the case should be tried; the
Sheriff of the county was ordered to call a jury to try the case at AVestminster
on a particular day unless before (nisi prius) the day fixed the judge of
Assize come into the county — this he was sure to do.
It has been pointed out that the " Judges of Assize " had three com
missions of criminal validity, (1) commission of the peace; (2) of Oyer
and Terminer; and (3) of General Gaol Delivery; they had also two of
civil import; (4) of Assize; and (5) of nisi prius. The commission of
Assize enabled them to take " Assizes," that is, the verdict of a jury in
certain peculiar species of action relating to land called an " Assize," now
long obsolete; the commission of nisi prius empowered them to try all ques
tions of fact then ripe for trial by jury.
The civil courts under these circumstances by the time we are now
considering were really nisi prius courts, but the old name Assizes was
retained (as indeed it is till this day). This is the " Court of Assize " which
was to be held by the Chief Justice once a year at Montreal and Three
Eivers. (c) The English Court of Common Pleas had jurisdiction exclusive in
real actions and concurrent in personal actions " pleas between man and
man," but none in criminal matters; its actions were generaUy tried at
nisi prius and all with a jury. The Quebec Court of Common Pleas had
no exclusive jurisdiction but it had concurrent jurisdiction with the King's
Bench in civil actions above £10. Cases were triedj without a jury unless
either party desired a jury. It had no criminal jurisdiction.
(d) The Courts of Quarter Sessions had in England an extremely limited
civil jurisdiction not extending beyond highways, bridges, the care of illegiti
mate children, the poor laws, apprentices and servants' wages — the jurisdic
tion given to the Quarter Sessions at Quebec and Montreal had no precedent
in England. (e) Justices of the Peace out of Sessions had little civil jurisdiction
and this wholly statutory; nothing like that given by the ordinance to the
Colonial Magistrates was to be found in England.
APiifeALs: In England and in Canada there was no appeal in criminal
cases; but the Court of King's Bench might in either country have the
record of inferior courts brought up on certiorari to examine into the
regularity, etc., of the proceedings.
{a) In civil cases in England there was an appeal from the Court of
King's Bench to the Court of^ Exchequer chamber (composed of all the
judges of the Court of Common Bench und the Barons of the Court of
Exchequer) with a further appeal to the House of Lords. In the colonial
court an appeal was given from the Court of King's Bench to the Govemor
and Council when the matter in contest was over £300 and a further appeal
to the King in Council when over £5.00. This was quite in accord with
colonial practice; while the House of Lords was (and is) the final court
of appeal in cases (speaking generally) from the British Isles, the King

13 UPPEE CANADA COUET EECOEDS.
in Council, i.e., (in practice) the Judicial Committee of the Privy Council
is the final court of appeal for all the rest of the British world.
(6) The record in the Court of Assize was sent up to the Court ot
King's Bench and the judgment entered in that court, there could, therefore,
be an appeal from this court. Motions for new trials, etc., were made in
the Court of King's Bench..
(c) In England at this time a writ of error in the nature of an appeal
lay to the Court of King's Bench from the Court of Common Pleas; eases
which the judges in the Court of Common Pleas considered of great weight
and difficulty were sometimes adjourned into the Court of Exchequer chamber
before any judgment was given on them in the court below. In such cases,
the Court of Exchequer Chamber consisted of the Judges of the three
Superior courts. King's Bench, Cohimon Bench and Exchequer and some
times the Lord Chancellor also.
In the Quebec ordinance an appeal is given from the Court of Common
Pleas to the Court of Eing's Bench in cases involving over £20 ; to the
Governor and Council over £300 sterling, with a further appeal to the King
in Council of £500 or upwards.
(d) From the Quarter Sessions in the colonies an appeal lay to the
King's Bench.
(e) From the Justices of the Peace out of sessions there was no appeal.
The Law Administrated : In the Court of King's Bench and apparently
in the Quarter Sessions and before Justices of the Peace the law of England
was prescribed. In the Court of Common Pleas the direction was indefinite and puzzling
— the judges were " to ¦ determine according to equity, having regard never
theless to the laws of England as far as the circumstances and present situa
tion of things will admit." Equity had already acquired the meaning
"principles upon which the Court of Chancery acts in deciding cases."
These principles, where they differed from the common law of England, were
mainly derived from the Eoman civil law, the ultimate basis of the French-
Canadian law. This Court was intended chiefly for French-Canadians, and
the judges were left at liberty to apply the French-Canadian law, and in
fact the ordinance was generally interpreted as prescribing this law. The
French-Canadian law was made to apply to causes of -action between French-
Canadians arising before October 1, 1764; this was to allow the eighteen
month^' to elapse which had been provided for in the Treaty of* Paris to
enable them to choose their allegiance. After that time they could not com
plain if they did not enjoy the benefit of their former laws.
The Couets in Actual Operation : As was to be expected there was con
siderable friction in the administration of law by these various courts, some
arising from intolerance and race hatred and some from the nature of
things. At the first Quarter Sessions at Quebec after this ordinance holden in
October, 1761, the Grand Jury made a presentment complaining that Eoman
Catholics " impannelled on grand and petty juries even where two Protestants
were partys " and " we therefore believe that the admitting of persons of
the Eoman Eeligion, who own the authority, supremacy and jurisdiction of
the Church of Eome as jurors is an open violation of our most sacred laws

UPPEE CANADA COUET EECOEDS. 13
and libertys and tending to the utter subversion of the Protestant religion
and His Majesty's power, authority, right and possession of the Province
to which we belong.
The question was submitted to the law officers of the Crown, and they
gave opinion that the Eoman Catholics in Canada were not within the pro
hibitions against Eoman Catholics in England. Governor Murray received
instructions to have an amending ordinance passed: he left for England, but
- the acting Governor had a new ordinance passed July 1, 1760, placing the
matter beyond doubt.
This ordinance specially provided " That all His Majesty's subjects
in the .... Province of Quebec, without distinction, are intituled to be impan
nelled and to sit and act as jurors in all causes, civil and criminal, cognizable
by any of the courts or judicatures within the said province. . . . And that
in all civil causes or actions between British born subjects and British born
subjects, the juries in such cases or actions are to be composed of British
born subjects only. And that in all causes or actions between Canadians and
Canadians, the juries are to be composed of Canadians only; and that in all
causes or actions between British born subjects and Canadians the juries
are to be composed of an equal number of each, if it be required by either
of the parties in any of the above-named instances."
The Jiistices of the Peace Courts, especially those of single Justices,
speedily got into disrepute; it was charged, and apparently with truth, that
some of the Justices of the Peace stirred up strife and litigation so as to bring
grist to their mill. The Quarter Sessions did not escape criticism; it was
pointed out that there was no .Justices of the Peace in Canada with such
knowledge of the law that they could properly charge the jury.
.\t length an ordinance, passed February 1, 1770, took away the juris
diction to try civil actions altogether from the Sessions and Justices of the
Peace and directed that all cases involving not more than £12 Quebec cur-
-rency ($48.00) should be tried by the Judges of the Court of Common Pleas
only and by them finally determined " as to them shall seem just in law and
equity." The judges were directed to appoint one day in each week (except
in vacation) for the trial of such cases over £12, and not to adjourn for more
than a week on any pretence ; and every Friday for cases not over £12, these
one judge might.dispose of.
Two terms in the year soon became too few for speedy justice. July 26,
1766, a new term, Michaelmas Term, was created, beginning October 15 for
the Courts of King's Bench and Common Pleas. This was not wholly effec
tive and the ordinance already mentioned (February 1, 1770) absolutely
divided the Court of Common Pleas, making two Courts of Common Pleas.
one at Quebec and one at Montreal, wholly separate from eacli other, and
ordering the judges of both courts to keep their courts open all the year
round " except on Sundays and three weeks at seed time, i month at
harvest and a fortnight at Christmas and Easter, and except during such
vacation " as was necessary for the judges to make their circuits twice a year.
Another difficulty necessarily arose from the different law administered in
the King's 'Bench and in the Common Pleas. When the cases came to be
considered in the King's Bench in appeal from the Common Pleas, the Chief
Justice found himself in great difficulty; his commission directed him to

14 UPPEE CANADA COUET EECOEDS.
decide according to the laws of England while the ordinance directed the
judges of the Court of Common Pleas to decide according to equity (which
was commonly understood to mean the French-Canadian laws). The Chief
Justice cut the knot by considering himself a judge of second instance bound
by the same laws as were the judges of the first instance in the Court of
Common Pleas; but the anomaly of different rules of decision according to
the court selected eontinued. The Court of King's Bench was most affected
by the " old subjects," the practice was the same as in the King's Bench in
England and highly' technical. No one but English lawyers practiced in it and
the proceedings were as a rule in English. In the Court of Common Pleas
the proceedings were far from formal; they were drawn up in any form and
style the parties or their advocates thought proper, in French or in English,
according as the attorney was Canadian or English, most frequently in
French, as the court was sought chiefly by the Canadians and they had Cana
dian lawyers. The Canadian lawyer was notary, attorney, barrister, proctor
and even land surveyor all in one, and did not like to be excluded from the
highest court. The ordinance of September 17, 1764, gave him the right to
practice in the Common Pleas only; this was rectified by the ordinance of
July 1, 1766, which directed that " His Majesty's Canadian Subjects " should
be permitted to practice in all ' the courts in the Province as " Barristers,
Advocates, Attorneys, and Proctors."
The wholly' unsatisfactory state of the practice in this court was put an
end to by the ordinance of February 1, 1770, which prescribed forms, etc.,
allowed either the French or English to be used, and generally laid down a
simple and satisfactory code of practice, so that he may run that readeth it,
and the waj^faring men unless they are fools shall not err therein
The Couets : As we have seen, the Quebec Act of 1774 put an cmt to all
existing ordinances, courts, etc., in the Province as of May 1, 177ft. Appar
ently it had been intended to send out to the Colony for its enactment there
an ordinance for the establishment of Courts, etc.; this seems no! lo have
been done. The rapidly growing troubles in the Thirteen Colonies interfered
with the immediate carrying into effect the Eoyal Instructions to Carleton,
January 3, 1775, to establish Courts. He declared martial law in the pro
vince June 9, and it was not till 1777 that affairs became sufficiently settled
in the province to care for ordinary civil administration. Montgomery having
been killed, and Arnold and AA^ilkinson having retreated from Canada on
February 25, 1777, an ordinance was passed establishing Courts of Civil
•Jurisdiction and March 4, 17V7, on" establishing Courts of Criminal Juris
diction. The Criminal Courts were: (1) the Court of King's Bench, holding two
sessions each year in Quebec and two in Montreal (with power to the Governor
to issue commissions of Oyer and Terminer and General Gaol Delivery at
any time; (2) Courts of Quarter Sessions in each of the two districts, meeting
four times a year; (3) Courts of the Coroner of each District to be held by
him or in his absence by the Captains of Militia in their respective parishes.
The civil courts were (1) the two Courts of Common Pleas in the two dis
tricts. Causes of action were divided into two classes, those not more than
£10 sterling and those more than £10 sterling. For the former class one day
in every week was to be set, and for the latter another day (excepting three

UPPEE CANADA COUET EECOEDS. 15
weeks at seed time, a month at harvest and a fortnight at Christmas and
Easter, and vacation appointed by the judges for taking their circuits) ; for
the former one Judge was enough and there was no appeal (except in cer
tain cases). Fori the latter two judges were required, and there was an
appeal to the Governor and Council, the Chief Justice presiding in the
absence of the Governor and Lieutenant-Governor ; this " Superior Court
of Civil Jurisdiction" was to sit the first Monday of every month during
the year, with power " to revise all errors both in fact and in law and
to give such judgment as the Court below ought to have given." The judg
ment of the court was final (except in certain special cases) if the amount
in dispute should not exceed £500 sterling in the special cases, and in all
cases above £500 an appeal lay to the King and Council, i.e., the Privy
Council. It will be seen that the Court of King's Bench was deprived of its
civil jurisdiction, no doubt because the English civil law was no longer to
be administered, and became a purely criminal court. The courts of
Assize and nisi prius of course disappeared; the courts of Common Pleas
sat and tried the cases themselves.
In 1785 special provision was made for the convenience of new
settlers. The ordinance 25 George III., e. 5, passed April 30, 1785, pro
vided "for the ease and convenience of His Majesty's subjects .... in
the upper parts of this Province" by authorising any Justice of the Peace
to issue a writ of summons calling before him any person in the said dis
tricts and hear and determine any cause for the recovery of a debt more
than 3s. 6d. (50 cents) and not more than 40s. ($8.00). Any two .Justices
of the Peace could hear and determine up to and over 40s. up to £5
($20.00) with costs up to 3s. (60 cents) or 5s. ($1.00) respectively, giving
the debtor such time to pay (not more than five months) as the court
should think reasonable, and also to allow the debt to be paid in instal
ments if thought advisable.
It will be seen that the part of the upper country here described
afterwards became the districts of Luneburg and Mecklenburg.
These were the courts in existence when Lord Dorchester created the
four new districts of Luneburg, Mecklenburg, Nassau and Hesse in 1788.
The western country filled up, an ordinance was passed April 30, 1787,
authorising the Govemor to form new districts by patent under the Great
Seal of the Province, and this as we have seen he did by patent July 24, 1788.
In each of the districts a court of Common Pleas was erected with
the same jurisdiction and the same practice as the courts of Common
Pleas in the districts of Quebec and Montreal. It will be necessary now to
set out the practice in these courts of Common Pleas.
There had been an administration of justice Act passed February 1,
1770, but this came to an end May 1, 1775, by the provisions of the Quebec
Act, 1774; the ordinance passed February 25, 1777, did not prove wholly
satisfactory, and April 21, 1785, a new ordinance to regulate -the proceed
ings in the courts of civil judiciary was passed.
This divided actions into two classes: (a) those above £10 sterling
and (b) those not above not above £10 sterling.

16 UPPEE CANADA COUET EECOEDS.
In the former class the plaintiff drew up a declaration (i.e., a paper
writing setting out the cause of action, etc.), he presented the declaration
to one of the judges of the Court of Common Pleas ; it a cause of action
appeared the judge made an order for the issue of a writ of summons;
on this order being produced to the clerk of the Court, he issued a writ
of summons (French or English according to the language of the defen
dant) in the name of the King, tested (i.e., "witnessed") in the name of
the judge to the sheriff to serve upon the defendant and commanding such
defendant to ... . appear. in snch Court to answer to the plaintiff on a day
appointed by the judge in the order . . . regard being had to the season
of the year as well as to the distance of the defendant's abode or place of
service from the place where the court may sit." Service of a copy of the
writ of summons and declaration was made either upon the defendant per
sonally or upon some grown person belonging to the family and at his house.
Special provision was made for the ease of a defendant not personally
served who was absent beyond the Long Sault (on the Ottawa, or beyond
Oswegatche (Ogdensburgh) in the upper part of the province, or below
Cape Cat or the Seven Islands in the Lower St. Lawrence. In case of a
debt exceeding £10 sterling, if it was sworn that the defendant was about to
leave the province and the plaintiff be thereby deprived of his remedy, a
capias might be ordered by the judge or judges to hold the defendant' till
he put in bail.
If the defendant did not appear in person or Ijy attorney, a default
was noted; if, on calling over the action on the next weekly court day, the
defendant again fails to appear without good reason for hi^ defence the
plaintiff proved his case and got judgment and execution. If the de
fendant appeared on the return day or on the next weekly court day (on
paying the costs of default if any) he was allowed on that day or some
subsequent day to set up his defence, orally or in writing, if verbal the
clerk took it down, if in writing it was filled in court. If the plaintiff did
not appear to support his actions it was dismissed with costs. Juries, were
allowed at the option of either party in debts, etc., of a mercantile nature
(between merchant and merchant, trader and trader) and of "personal
wrongs committed" the agreement of nine out of twelve jurors to be
sufficient; in cases between natural-born subjects of Great Britain, Ireland
or the American Plantations and Provinces, the jurors to be the same;
between Canadians, Canadians; and between natural-born subjects and
Canadians, half of each. In all commercial matters the rules of evidence laid
down by the laws of England to govern. If neither party desired a jury,
the case was tried by the judges (at least two). All merchants or traders of
full age and all householders or occupants of lodgings of the value of £15 per
annum, being of full age, were qualified as jurors.
In case of appeal, a writ of appeal was made out, tested, and s'gned by
the Governor, Lieutenant-Governor or Chief Justice ; this was produced to
the court below, -and when the appellant had given the requisite security
the proceedings were transmitted to the Court of Appeal, i.e., the Governor
in Council; the appellant within eight days filed his reasons of appeal or
his appeal was in peril of dismissal; thc respondent within eight days filed

UPPEE CANADA COUET EECOEDS. 17
his answer or he stood iu peril of not being allowed to do so; then a day
was fixed for the hearing and the appeal was argued and decided.
Where the claim was £10 sterling or under the plaintiff prepared or
procured from the clerk a formal declaration setting out the amount of his
claim; at the foot of the declaration the clerk wrote out a summons which
was signed by one of the judges calling upon the defendant to appear before
the court on,, a day named; a copy of the summons and of the declaration
was served on the defendant as in the other class of cases. If he did not
appear, the judge (one judge was suificient) heard the plaintiff and gave
judgment accordingly; if he did appear and the plaintiff did not appear
to support his claim, the action was dismissed with costs; if both appeared,
the cause was heard and judgment given accordingly with costs; execution
issued eight days later. Whether the claim was above £10 or not, if any
debtor conveyed away his goods or concealed them or kept them from being
seized, execution might go against his person and he be kept in prison until
he paid; in commercial matters, between merchants or traders, and for debt
due to merchants or traders for goods sold, execution might go against the
person of the debtor; but after being in prison one month, the debtor might
obtain his release on filing an affidavit that he was not worth £10 unless
the plaintiff allows him 3s. 6d. a week (or in times of scarcity the court
may allow 5s.); whenever the plaintiff failed to pay this "subsistence
money " the defendant was released from gaol.
It will be seen that the actions were begun by writ of summons or^ -
by simple summons, according as the cause of action was more or not more
than £10, just as in our present practice we have the simple summons in
the lowest or Division Court, but the writ of summons in the higher courts.
The original practice in the Court of Common Pleas laid down by the
ordinance of September 17, 1764, was " The first process of this Court to be
an attachment against the body, an execution to go against the body, lands
or goods of the defendant." The " attachment against the body " was what
is called in law a capias ad respondendum (often contracted into ca. re) ;
one having a cause of action against another took out a writ of ca. re.,
handed it to the sheriff, who arrested the defendant until he put in bail to
pay the amount claimed. This was in practice (if not quite in theory) the
" first process in the Court of Common Pleas in England at the time ; in .the
Court of King's Bench a practice not unlike this was very commonly
adopted, though that court had technicalities of its own.
The French-Canadians were dismayed at this practice; they protested
and petitioned : " We have seen with grief our fellow-citizens imprisoned
witl;out being heard, and this at considerable expense, ruinous alike to the
debtor and creditor." The Attorney-General of the Province, Francis
Maseres, at the instance of the Governor, Sir Guy Carleton, drew up and
presented a report, on September 2nd, 1769, in which he said, inter alia,
" Arrests of the body for debt are used in the first instance both upOn suits
in the Court of King's Bench and suits in the Court of Common Pleas,
and even upon suits instituted before Justices of the Peace. This is a part
of the English law that a good deal surprised and alarmed the Canadians
upon its first introduction, as it carried an appearance of much greater
severity than was practiced under their own laws, which allowed of im-

18 UPPEE CANADA COUET EECOEDS.

prisonment only in criminal proceedings and in some few civil suits
grounded on bills of exchange or other instruments of a commercial nature,
and then only in the beginning of the suit; but now (1769) they are grown
accustomed to this way of proceeding, and frequently put it in practice
against each other." But he did not recommend the abolition of imprison
ment on "final process," i.e., after judgment, as "many persons of good
sense and character of both nations are of the opinion that, considering the
great credit that has been given by persons in trade in this province and the
knavish and triekish disposition that has appeared in many of those to whom
it has been given, there is no' other method of proceeding by which creditors
can hope to obtain payment of their debts." As to arrest before judgment,
he said : " Other persons are of a different opinion and think arrests of the
body in the first instance an unnecessary piece of harshness in civil suits
and wish it were restrained; and in this opinion we humbly submit it to
your Majesty that we are ourselves inclined."
In the next ordinance concerning the Court of Common Pleas, i.e.,
that of February 1, 1770, it was provided that in cases not exceeding £12,
no process was to issue after declaration filed, and while there is no express
provision for a capias ad respondendum it was not abolished. This alle
viated but did not destroy the grievance. We find the Home Solicitor-
General, Wedderburn, in a Eeport, December 6, 1772, saying: "The Cana
dians, it is said, complain, and not without reason, of the arrest and im
prisonment in civil cases .... the arrest upon mesne process which is only
used to compel appearance or answer may be abolished, and in lieu of it
the plaintiff might be allowed after due summons to enter an appearance
for the defendant." The Advocate-General, Marriott, in his Eeport, 1774:
"As it appears that the Canadians have had so great an objection to arrests
being dishonourable, and as arrests cause so much misery in a whole family
who become a burthen upon the public, as they prevent every exertion of
industry and render the morals of the prisoner much worse by confining
him in company with the most abandoned criminals, it seems to me that
in a commercial state it may be proper to take away arrests of the body in
the first instance in civil causes under £10 unless there is an oath of two
sufficient witnesses that the defendant is likely to withdraw himself out of .-
the colony. To arrest an industrious man when personal labour is .of so
much value to the community is a public loss as well as a private one to the
person who arrests; it is putting fetters upon that industry the exertion
of which only could discharge the debt." He does not, however, advise the
abolition of the arrest if the debt be £10 or over.
AVlien after the Quebec Act a new ordinance for r^ulatin? the proceed
ings in the courts, that of February 25, 1777, was passed, the ca. re was
aholished except in cases over £10 sterling, where "the judges or any two
of them are satisfied by the affidavit of the plaintiff or otherwise that the
defendant is indebted to him and on the point of leaving the province where
the .plaintiff might be deprived of his remedy against him," then " it shall
be lawful for the said judges or any two of them to grant an attachment
against the body of such defendant and hold him to bail, and for want of
bail to commit him to prison until the determination of the action against

UPPEE CANADA COUET EECOEDS. 19
him." No provision was made for a ca. re. in any case not exceeding £10
sterling. The subsequent ordinance of April 21, 1785, gave to " one or more
judged" (instead of "the judges or any two of them") the power in cases
over £10 sterling on " affidavit of the plaintiff or his book-keeper or clerk
or legal attorney" (instead of the "affidavit of the plaintiff or otherwise")
that the defendant is indebted to the plaintiff in a sum exceeding £10 ster
ling " if " satisfied by the oath of the plaintiff or some other person that the
defendant is immediately about to leave the province and whereby the plain
tiff might be deprived of his remedy against such defendant" to grant a
capias to hold him bail or in prison till two days after the execution might
be obtained by the plaintiff if he succeeded.
Accordingly, except where the debt was over £10 sterling, no person could
be thus arrested at all; a*id unless a debtor was about to leave the province
he could not be arrested at all before judgment. This was the law in the
Courts of Common Pleas in the four districts now Ontario, and was the law
in Upper Canada till 1794. In that year the first parliament of Upper
Canada abolished the four courts of Common Pleas and established a Court
of King's Bench of full civil and criminal jurisdiction. By Section 5 it was
enacted " that the original and first process of the said court shall be .by writ
of capias ad respondendum," and the English practice was again in full force.
But except where it was made to appear on affidavit that the defendant owed
a sum certain to the plaintiff and was about to leave the province with intent
to defraud his creditors, the defendant could not be held to " special bail,"
"common bail," a mere formality was put in. With modifications it held
its own for more than three-quarters of a century, receiving a death blow only
in 1858. In a statute of that year it was enacted : " After the first day of
September, A.D. 1858, no person shall be arrested upon mesne or final pro
cess in any civil action in any of Her Majesty's Courts in Upper Canada"
(except those about to abscond owing at least £35, i.e., $100).
The capias ad satisfaciendum had a somewhat similar history. It was
a writ of imprisonment granted after judgment had gone against the defen
dant, and it may well be considered with the other forms of execution in
tended to satisfy the plaintiff's judgment. n
The Ordinance of September 17, 1764, provided that in the Court of
Common Pleas " An execution to go against the body, lands, or goods of the
defendant." At the time in England where judgment was for money either as debt
or as damages the plaintiff might have execution of five kinds: (a) against
the body of the defendant, (b) against his goods and chattels, (c) against
his goods and chattels and the profits of his lands, (d) against his goods and
chattels and the possession of his lands, or (e) against all three —
body, goods and lands. But it was not allowed to sell the lands of the
defendant, but a statute was passed in 1732 making lands in the Plantations
or Colonies subject to simple contract debts and providing that in satisfaction
of all debts execution which would go against goods and chattels should
operate also against lands and tenements, so that the debtor's land could be
sold, not simply occupied.

20 UPPEE CANADA COUET EECOEDS.
There never was any objection on the part of the French-Canadians to
execution against goods or against .lands, but they did object to execution
against the body the capias ad satisfaciendum.
The objections to the ca. re. applied, though with less force, to the ca. sa.
Maseres spoke in his report of the inconvenience of " the severity of the pre
sent method of proceeding in civil actions by arresting and imprisoning the
defendant's body. This, by filling the gaols with unhappy debtors, increases
the number of poor and helpless, and makes the families of the debtors, as
well as the debtors themselves, become oftentimes a burden to the publick,
and it is generally thought by the Canadians to be an unnecessary degree of
harshness," and advises that "when judgment was given for the plaintiff in
a civil action a writ of execution should go against the goods and lands of
the defendant, but not against his person, directing the . . . officer ....
to levy .... upon the defendant's movable goods and chattels, and in casa
they are not sufficient .... to sell part of hfis land .... if the .... officer
could not find a sufficient quantity of either movable or immovable property
.... and the judge was of the opinion .... that there was reasonable grounds
to suspect that the defendant had secreted or concealed some of his effects,
he might require him to deliver in to the court upon oath an exact schedule
of all his estates and effects of every kind, and if he refused to do so might
commit him to prison until he complied."
A Committee of the Council having been appointed in 1769 to take into
consideration the State of Administration of Justice, reported September 11,
1769, advising that in all executions where the debt and costs do not amount
to £10 Halifax currency ($40.00) no capias ad satisfaciendum to arrest or
detain the body of the defendant should be granted.
The Ordinance of February 1, 1770, provided for a ca. sa. in all cases over
£12 Quebec currency, but where the judgment was not over £13 the execution
was first on goods and chattels ; if these were insufficient an enquiry was made
as to the defendant's lands, their extent, and whether sowed or reserved for
hay, whereupon the judge might issue another writ to take possession of
the land " immediately after the reaping or mowing of thc same " and take
the crop. If the defendant conveyed away or secreted any of his goods, a
ca. sa. might be granted. There was to be no execution against houses or
lands unless the debt exceeded £12 Quebec currency.
Then came the ordinance of April 31, 1785, which provided that in
causes exceeding £10 sterling an execution should issue " to take the body
or to levy a sum of money out of any one's goods and chattels, lands, and
tenements"; where the claim did not exceed £10 sterling execution against
the body, as well as where above £10 if the defendant should convey away
or secrete his effects or should with violence or by shutting up his hnii«e.
store or shop, oppose his effects being seized.
Moreover, as we have seen, "for the satisfaction of all judgments o-iven
in commercial matters between merchants or traders, as well as of all debts due
to merchants or traders for goods, wares, and merchandizes by them sold.
execution shall issue not only against the goods, chattel^, lands and tene
ments of the defendant, but also in case they do not produce the amount of
the plaintiff's demand against his person, to be taken and conveyed into the
prison of the district."

UPPEE CANADA- COUET EECOEDS. 21
The practice of ca. sa. thus introduced into the territory afterwards
Upper Canada continued; the Act of 1794 erecting the Court of King's
Bench in Upper Canada introduced the English practice of ca. sa. ; this after
being amended from time to time disappeared in 1858 and 1859.
The ordinance of April 30, 1789, enacted that in all trials in Courts
¦of Oyer and Terminer and General Gaol Delivery, where the Chief Justice
did not preside, sentence should not be executed until the pleasure of the
Governor should be known ; and that copies of the proceedings should be sent
to the Governor with all convenient speed ; these provisions not to apply where
the sentence did not extend to life or limb or any greater penalty than £25
sterling. The like provisions were made for the Quarter Sessions, where there was
a fine of £25 sterling and upwards.
Until safe gaols should be built in the new districts, the Courts of Oyer
and Terminer might send any prisoner convicted before them of a capital
offenc'e to any prison they should designate for safety.
To avoid the cost of unnecessary detention of prisoners, larceny of not
more than 20 shillings sterling should be considered simple larceny (instead
of one shilling as in England) ; and whenever any one was in gaol charged
only with a breach of the peace or simple larceny, and did not give bail
within forty-eight hours any three Justices of the Peace could try him and
give him (on conviction) such " corporal punishment (not extending to life
or limb) " they should see fit, and after the execution thereof he should be
discharged. If he had not a stated residence within the province for at least
13 months they might require hiih to enter into recognizances for good
behaviour for seven years.
In the district of Hesse " until the Bench .... should have three judges
.... all the powers and authorities of the whole number shall be vested in
.... the first judge thereof." Yearly circuit courts with civil jurisdiction
were expected to be necessary in the northern part of Hesse, i.e., at Michili
macinac, and power was reserved to the Governor and Council to form them;
and the Court of Hesse was not to be ousted of jurisdiction by reason of the
cause of action not having arisen in that district or by reason of the defendant
not being domiciled therein; nor was anyone to shelter himself behind the
" Laws of prescription or limitation which pre-suppose a state of general tran
quillity and the easy and frequent course of justice." No such plea should be
allowed except in cases in which the cause of action accrued after Jan. 1, 1790.
In the four districts and in Gaspe where the title to the freehold came in
question, evidence according to the laws of England or to the French-Canadian
laws should be allowed. Movables when seized by the Sheriff should be
advertised at the church door of the parish on the first Sunday thereafter, or,
if there was no church, at the door of the Court House and the nearest grist
mill; and they were not to be sold until till fourteen days after such notice.
Lands were to be advertized three times in writing in the Court House door,
in the office of the Clerk of the Court, and at the nearest grist mill and sold
not less than four months after the first publication.
William Eenwick Eiddell.

22 UPPEE CANADA COUET EECOEDS.

REFEEENCES.
(I) Fourth Report ot Bureau of Archives, Ontario, 1906, pp. 2. Sqq. Kmgs-
ford's History of Canada, Vol. V, p. 142.
(2) (1774) 14 Geo. Ill, c. 83 (Imp.). The historic quarrel between Edmund
Burke and Charles James Fox took place during the Debate in the House of
Commons on this Bill. 29 Hansard, pp. 103-113, 359-430.
(3) 32 George III, s. i (V.C).
(4) "Seventh Keport of the Bureau of Archives for the Province of Ontario,"
Toronto, 1910, p. 101. " Sixth Report of the Bureau of Archives for the Province
of Ontario," Toronto, 1909, p. 17.
(5) The two Provinces of Upper Canada and Lower Canada were united into
one Province of Canada by the Union Act (1840), 3, 4 Vic, c. 35 (Imp.). The
thirteenth and last Parliament of Upper Canada was prorogued' Feb. 10th, 1840.
The first of the Province of Canada began June 14th, 1841.
The old Province of Canada was united with New "Brunswick and Nova Scotia
by "The British North American Act, 1867," 30, 31 Vic, c. 3 (Imp.), as of July
1st, 18'67. The eighth or last Parliament of the Province of Canada was prorogued
August 15th, 1866; the first Parliament of the Dominion of Canada began Novem
ber 6th, 1867. The Parliaments of Upper Canada and of the Province of Canada
had full jurisdiction, civil and criminal. Under the present system, while speak
ing generally, the Province has civil and the Dominion has criminal jurisdiction,
still there are many most important branches of civil law in the Dominion's
jurisdiction (e.g.,), bills, notes, cheques, banking, etc., while the Province has
power to create what are in reality crimes whatever the offences may be called
(e.g., offences against the liquor laws).
(6) Many interesting details of the British occupation of what is now
Michigan and Wisconsin will be found in the publications of the Michigan His
torical Society. Of what is now Illinois and Indiana, in those of the Illinois State
Historical Library (all in the Riddell Canadian Library). I do not here par
ticularize more than is necessary to explain the jurisdiction of the Courts of
Upper Canada.
(7) See Note 6.
(8) Most of the old school and a few of the modern school of American his
torians make much of the alleged perfidy of Britain in refusing to deliver up the
posts on the right side of the international waters, but the matter was a perfectly
simple one. The Treaty, by article 4, expressly provided that " creditors on either
side shall meet no lawful impediment to the recovery of the full value in sterling
money of all lona fide debts heretofore contracted." iSome of the States had
passed legislation which prevented British creditors from recovering their debts
from American debtors, and these States refused to repeal these obnoxious laws
which the State Courts held to be valid. Britain kept possession of the Forts at
Dutchman's Point, Point au Fer, Oswegatchie, Oswego, Niagara, Buffalo, Detroit,
Michilimacinac, and in answer to repeated representatioHs said most firmly that
she intended to remain in possession until redress should be given to her subjects.
Finally by "Jay's Treaty," 1794, the United States agreed to pay these claims, and
Britain gave up all the Posts, 1796.
(9) At that time there was no appeal in serious criminal cases at all. There
was in cases of felony no power anywhere even to grant a new trial. In. one
case, The Queen v. .Scaife (1851), 17 Adolphus and Ellis, Queen's iBench Reports.
New Series, 238, the Court of Queen's Bench did make an order for a new trial
at the instance of a prisoner who had been convicted of robbery at the York
Assizes before Mr. Justice Cresswell. No precedent for such an order was cited
or can be found and the decision is disapproved by the Judicial Committee of
the Privy Council m Attorney-General of New South Wales and Pertrand (1867)
Law Report, 1 Privy Council, 520, also reported in Volume 16 of the Law Times
New iSeries, p. 752. In The King v. Inhabitants of Oxford (18111 lT w^vl
Report of Cases in the King's Bench, pp. 410, 415 (note), it is said that 'there is no
instance of a new trial being granted in a capital case. All the authoritiec, , n tn
that time (1811) are carefully collected in that case. aumonties up to
Sometimes a new trial would be granted in cases of misdemeanor hut =; ch
cases were very few. See "New Trial at the Common Law" 26 'vnio t
Journal, pp. 58 Sqq. (November, 1916). ' ^aiei^w
No right of appeal to the Privy Council was contemplated In criminal
by this Proclamation. ^^^^^

UPPER CANADA

DISTRICT OF HESSE

RECORD OF THE

Court of Common Pleas

L'ASSOMPTION

1789

[23]

UPPER CANADA
DISTRICT OF HESSE

Record of the Court of Common Pleas
L'ASSOMPTION, 1789

Court of Common Pleas held at L'assomption in the
said District on Thursday, the sixteenth day of July,
one thousand seven hundred and eighty-nine.
Present: The Honourable William Dummer Powell,
Esquire, First Judge of the said Court, etc.
The plaintiff by his Attorney Walter Eoe, filed his
declaration, and the defendant being called thrice and
not appearing: It is ordered that a default be entered
against him.
The plaintiff by his Attorney Walter Eoe filed his
declaration. The defendant being called, and appeared
in person ; and by consent of the parties : It is ordered
that the defendant do plead to this cause on the first
Court day in October next.
The plaintiff by his attorney Walter Eoe filed his
declaration. The defendant appeared and confessed the
debt, that it was justly due to the plaintiff for his wages
when employed both himself and his horse in the service
of the Miamis Company at Sandusky, during the time
the defendant was acting as agent for the said company,
and that the defendant was the person that engaged the
plaintiff with his horse, findiag that the service of the
company could not be carried on without him. The
Court ordered judgment be recorded against the said
Hugh Heward after the matter being duly considered
that he the said Hugh Heward pay to the said James
Heward for his wages the sum of fourteen pounds, one
shilling and threepence and the sum of 
costs as by him sustained with interest on the principal
sum from the eleventh day of July last until perfect
payment; reserving to the defendant his recourse for
repayment from his employers. [£5]

Province of
Quebec,District of Hesse,
16 July, 1789.

John Robert
McDougall,
of Detroit,
Gentleman, vs.
Isaac Germain,
Serjeant in the
Sixty-fifth
Regiment.
Hugh Heward
vs.
Antoine Lasselle.

James Heward,
of Detroit,
Labourer vs,
Hugh Heward, of
the same place.
Gentleman, and
agent to John
Askin, Esq., and
Others Trading
under the Firm of
the Miamis Com
pany.

26

UPPEE CANADA COURT EECOEDS.

Richard Dobie,
of Montreal,
Merchant, vs.
John Martin,
•of Detroit,
Merchant.

The plaintiff by Mr. Eoe his attorney, filed his declara
tion and the defendant being called thrice and not appear
ing, it is therefore ordered that a default be enterei
against him.
Court adjourned to the 23rd of July, 1789.

T. Smith,
Clerk.

Province of
Quebec,District of Hesse,
23 July, 1789.
T.S.

Court of Common Pleas. Thursday, the twenty-
third day of July, one thousand seven hundred and
eighty-nine. Present: The Honourable William Dummer Powell,
Esquire, first judge of said Court, ete.

Lelth & Shepherd
vs.
J. Bts. Laduc, fils.

Walter Eoe, attorney for the plaintiff, filed his declara
tion, and the defendant after being called appeared in
person and acknowledged his signature to a note of hand
now filed in Court, but pleads minority at the time of
subscribing the same and that it was not a debt of his
eoiitraeting, whereupon the Court ordered the defendant
to prove his allegations on the twentieth of next August.

Thomas Cox of
Detroit (No. 2),
vs.
Guillaume
Gyeaux, of
Parisli of
L'assomption,
Teoman.

the

Walter Eoe, attorney for the plaintiff, filed his declara
tion. The defendant appeared in person and confessed
judgment for the principal sum, but denied having ever
agreed to pay interest to the plaintiff. Whereupon the
Court ordered judgment to be recorded against the de
fendant to pay unto the plaintiff the principal sum of
one hundred and sixteen pounds, eleven shillings and
eightpence, currency of the province and interest to be
thereon computed from the twentieth day of July last
until perfect payment with the sum of 
for costs accrued in the premises.

Execution issued 2ith August, 1789, and returnable
7th January, 1790.
Principal sum  £116 11 8
Costs 

Thomas Smith
vs.
Jean Bte. Crete.

McKilllp & Jacob
vs.
Claude Salaut,
of Detroit,
Teoman.

The plaintiff appeared and filed his declaration and
the defendant being called and entered appearance.
Mr. Eoe for the plaintiff filed his declaration and the de
fendant appeared in person and declares that he owes noth
ing to the plaintiff and that the goods. as specified in
the account annexed to the plaintiff's declaration he
received in the quality of a clerk. The Court, order the

, UPPER CANADA COURT EECORDS.

27

plaintiff to prove their allegations on the twentieth of
next August.
Walter Eoe for the plaintiff filed his declaration and
the defendant appeared in person and acknowledged the
principal sum ; but objected against the interest, saying
that he never agTeed to pay it. The Court order the
plaintiffs to prove their demand on the twentieth of
next August.
Walter Eoe for the plaintiffs filed his declaration.
The defendant appeared in person and acknowledged
the plaintiffs account ' to be just ; but that he had an
account of work done for the plaintiffs to the amount of
one hundred and eighty livres ancient currency of Quebec
which he moved to be deducted. The Court order judg
ment to be recorded against the defendant for the balance
(after deducting the said one hundred and eighty livres)
of thirty-nine pounds, sixteen shillings ' and . twopence
currency with interest to be thereon computed from the
twentieth of July last until actual payment with the sum
of six pounds, ten shiUings and sixpence like currency
for costs of Suit.

Meldrum & Park
vs.
Pierre Labute, of
the Parish of
L'assomption,Teoman,

Meldrum & Park,
vs.
Dominique La Brosse. of the
Parish of St.
Anne, Teoman.

No. 3.

Execution issued 12th August, 1789. Returnable 7th
of January, 1790.
Principal sum  .£39 16 2
Costs  6 10 6

£46 6 8

Walter Roe for the plaintiff filed his declaration, and
the defendant appeared in person and denies he had any
account to render to the plaintiffs respecting a certain
quantity of Indian corn as set forth in the plaintiff's
declaration. The Court orders the plaintiffs to prove
their demand on the twentieth of next August.
Mr. Charles Smyth acting by procuration for the
plaintiff filed his declaration. Walter Eoe, the defend
ant's attorney entered appearance.
Mr. Charles Smyth acting by procuration for the plain
tiff filed his declaration. The defendant appeared in
person and acknowledged the note as set forth in the
declaration, but pleads to have deducted a payment made
thereon of two pounds, three shillings and fourpence
currency. Thereupon the Court ordered judgment to be

Meldrum & Park
vs.
Joseph Barron,
of the Parish of
St. Anne, Teoman.

William Groes-
beck, of Detroit,
Merchant, vs.
Joseph Gamelin.
of the Parish of
L'assomption. William Robert
son, of Detroit,
Merchant, vs.
Antoine Dequindre,
of the. Parish of
St. Anne.

38

UPPEE CANADA COUET EECORDS.

Richard Dobie,
of Montreal,
Merchant, vs.
John Martin,
of Detroit,
Merchant.

John Robert
McDougall, of Detroit,
Gentleman, vs.
Isaac Germain,
Serjeant in the
65th Regiment.

Causes under ten
pounds sterling.
Leith feiShepherd,
vs.
Antoine Charron.

recorded against the defendant for the balance of fourteen
pounds six shillings and tenpence half penny currency
with interest to be thereon computed from the twenty-
second day of July last, until ample payment and tlie
sum of six pounds one shilling and elevenpence like
currency of costs accrued in the premises.
Execution issued 12th August, 1789. Returnable 7th
January, 1790.
Principal sum  £14 6 10%
Costs  6 1 11

£20 8 91/2

Mr. Eoe, the attorney for plaintiff, informed the Court
that this action was continued last Court day and that
the defendant had been then thrice called and not appear
ing and a default was recorded against him. The defend
ant now being called again and entered appearance, and
declares he is not indebted in the sum as set forth in the
plaintiff's declaration. The Court order the plaintiff to
prove his demand on the twentieth of August next.
Mr. Eoe, attorney for the plaintiff, mentioned to the
Court that this action was entered last Court day, the
sixteenth of July, and was eontinued (by reason of a
default being recorded against the defendant) to this
day. Whereupon the defendant was this day again thrice
called and did not appear. The Court order a second
default to be recorded against him and that the plaintiff
shall prove his demand on the twentieth of next August.
Walter Eoe, attorney for the plaintiffs, and the defend
ant appeared in person and confessed the debt. The
Court ordered judgment to be recorded against the defend
ant for the sum of five pounds, twelve shillings and six
pence currency and eleven shillings and eightpence costs
with a stay of execution for one month.

Execution issued 21th September, 1789.
in one month.

Eeturnable

Debt Costs

£5 12
0 11

£6 4 2
Court adjourned to the 20th of August next.

T. Smith,
Clerk.

UPPEE CANADA COUET EECORDS.

29

Court of Common Pleas, Thursclay, 20th of Aug., 1789.
Present: The Honourable William Dummer Powell,
Esquire, First Judge of said Court, ete.

Province of
Quebec.District of Hesse.
20 August, 1789.
T.S.

Charles Smyth for the plaintiff, acting by procuration,
filed his declaration. The defendant being thrice called

Jolin Askin,
vs.
Francis Fontenoy,
and not appearing, the Court ordered a default to be re- Trader."'"^"'
corded against hiln.

Walter Eoe for the plaintiff filed his declaration. The
defendant being called and not appearing, the Court
ordered a default to be entered against him.
Walter Eoe, attorney for the plaintiff, filed his declara
tion and informed the Court that an attachment had
been i.ssued out against certain movables in the hands
of the- defendant at Sauguinau. The defendant being
called and not appearing, the Court ordered a default
to he recorded against him and the seizure to hold good.
Walter Eoe for the plaintiff filed his declaration, and
the defendant entered appearance.
Walter Eoe for the plaintiffs filed his declaration, and
the defendant appeared in person and acknowledged the
debt. The Court ordered judgment to be recorded against
¦ the defendant, for the sum of twenty-eight pounds,
eighteen shillings and ninepence currency, with interest
to be thereon computed from the twenty-ninth day of
July last until ample payment and the sum of six "pounds
eighteen shillings and eightpence for costs as accrued
in the premises.

Execution issued 24th September, 1789:
7th January, 1790.

Debt Costs

£28 18 9
6 18 8
£35 17 5

Jonathan Schieffelin
vs. Francis Fontenoy,
of Saguinau,
Trader. Jonathan Schieffelin vs.
John Visgar.

James May,
vs.
Peter Leucks,
of St. Anne,
Labourer. Leith & Shepherd,
vs.
John Pike, of the
River a la
Tranche, Teoman.

Eeturnable

Capias and Satisfaciendum issued 19th November,
1789. Returnable in one month.
Debt  £35 17 5
Writ  0 5 0
Extra costs  1 6 6

£37 8 11

30

UPPEE CANADA COUET EECORDS.

John Gregory
vs.
William Thorn.

Leith & Shepherd
vs.
William Thorn.

Walter Eoe, attorney for plaintiff, filed his declara
tion, and the defendant being thrice called and not ap
pearing, ordered a default to be entered against him.
Walter Eoe, attorney for platatiff, filed declaration
and the defendant being called and not appearing, ordered
a default to be entered against him.

Thomas Cox
vs.
Guillaume Gyeaux,
of L'assomption,
a Writ of an
Attachment In the
hands of Jos.
Pilet for £116.11.8
currency, the sum
for which judg
ment was rendered
the 23 July last.

Meldrum & Park,
of Detroit,
Merchants and Co
partners in Trade,
vs.
John Pike, of the
River a la Tranch,
Teoman.

William Park, by
procuration of
James Sterling,
v,s.
James Casety.
Jajmes Fraser,
Attorney to the
Assignees of
Thos. Cox,
vs.
Pierre La Bute.

James May,
of Detroit,
Gentleman, vs.
Amable Latour,
of St. Anne, Car
penter.

Walter Eoe, for the plaintiff, filed his declaration, and
the defendant appeared in person.
As judgment was rendered the twenty-third of July
last against the defendant, and execution the twenty-
fourth of August, and finding by the Return of the
Sheriff that the defendant's goods and chattels, lands
and tenements are not suificient to satisfy the said judg-
meiit creditor, and the plaintiff's attorney suspecting that
the defendant has property secreted in the hands of
Joseph Pilet, he was therefore summoned before this
Court to' give his declaration on oath, whom being called
and duly sworn, and declared " to have no effects of
the defendants in his hands at this time; nor have had
at the time of the service of the declaration.
Walter Roe, attorney for the plaintiff, filed his declara
tion: and the defendant being called and confessed judg
ment. Whereupon the Court ordered judgment to be
recorded against the defendant for the sum of sixty-
seven pounds and twopence currency, with costs of suit
and interest to commence from the third day of August
last, until perfect payment, the taxed sum for costs being

Walter Roe, for the plaintiff, moved to withdraw the
action. Ordered accordingly.
Walter Roe, for the plaintiff, filed his declaration, and
the defendant being called and appeared in person and
after some altercation, Mr. Roe, the plaintiff's attorney,
moved to discontinue the suit. The Court ordered the
suit to be discontinued accordingly.
Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant appeared in person after being
called, and confessed the debt, whereupon the Court'
ordered judgment to be recorded against tlie defendant
for the sum of twenty-two pounds, eight shilliqio'S cur
rency with interest to be thereon computed from the
twelfth day of August instant until perfect payment and
the sum of 
cost by him the plaintiff sustained.

UPPER CANADA COURT RECORDS.

31

Execution issued Sth September, 1789.
7th January, 1790.

Returnable

Debt Cost

£22 8 0

Mr. Roe, attorney for the plaintiff, filed his declara
tion and the defendant being called, appeared in person,
and denies the debt, and purchase of a lot in the second
concession from the plaintiff; but acknowledged to have
agreed with him to have the preference of said lot, if
the land really was his property and he had a right to
dispose of it. And that when he signed the obligation
as set forth in the plaintiff's declaration he understood
it to be no other instrument than a list of those people
whom the plaintiff wished to give the preference to of the
lots in the second concession in the parish of L'assomption ;
where the plaintiff claimed a very large tract by an Indian
gift. Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant being called and appeared in
person and confessed the debt, whereupon the Court or
dered judgment for the sum of one hundred and fifty-six
pounds, eight shillings and one penny halfpenny currency
with interest from the twelfth day of August instant until
perfect payment and the sum of 
costs by them, the said Meldrum & Park sustained.

Isaac Williams,
of Sandusky,
Trader, vs.
Jacques Charron,.
of Li'aissomption,
Teoman.

M«ldrum & Park,
of Detroit,
Merchants and Co
partners in Trade,
vs.
Joseph Gamelin,
of the Parlsn of
L'assomption.

Execution issued' Sth September, 1789. Returnable
7th January, 1790.
Debt .¦  £156 8 II/2
Cost 
Walter Roe, attorney for the plaintiff, filed his declara- Hugh^Heward
tion, and Charles Smyth, attorney by procuration for the John Askin.
defendant, entered appearance.

Walter Roe, attorney "for the plaintiff, filed his declara
tion, -.and the defendant being called and appeared in
person and acknowledged that the plaintiff was in peac-
able and quiet possession of the land in question and that
he did enter on the premises in manner and form as set
forth in the plaintiff's declaration, which being duly con
sidered the Court ordered the defendant to put the plain
tiff immediately in possession of the said premises, and
the action to be continued in the meantime.

Isaac Dolson,
of L'assomption,
Teoman, ve.
JoiSeph Pernler,
dite Vadehoncoeur
of the River au
I'corse.

32

UPPER CANADA COURT RECORDS.

Meldrum & Parle,
of Detroit,
Merchants and
Oo-partners In
Trade, vs.
Jean Baptiste
Crete, of the same
place, Timber
Merchant.

Walter Roe, attorney for plaintiffs, filed his declara
tion, and the defendant being called and entered' ap
pearance.

John Urquhart,
of Detroit,
Grentleman, vs.
Jno. Askin, of the
same place.
Merchant.

Charles Smyth, acting by procuration for the plaintiff,
filed his declaration, and Walter Roe, attorney for the
defendant, entered appearance.

OLD CAUSES.
Richard Dobie,
of Montreal,
Merchant, vs.
John Martin,
of Detroit,
Merchant.

'Leith & 'Shepherd,
of Detroit,
Merchants and
Co-partners in
Trade, vs.
Jean Bte. Leduc,
flls, of the Parish
of L'assomption,
Teoman.

This action was continued the twenty-third of July
last for the plaintiff, to prove his demand this day; in_^
consequence, Walter Eoe, attorney for the plaintiff, filed
his replication the eighteenth instant in the office. The
defendant being now thrice called and not appearing,
thereupon the plaintiff's attorney moved for judgment.
The Court ordered the action to continue for eight days
en delibere and a second default entered against defendant.
This action was continued the twenty-third of July
last for the defendant to prove his allegations on this
day. The defendant being called and appeared, and
in support of his plea that he was a minor at the time
of subscribing his name to the note in question, produced
his Batistere which upon investigation it was thereby
" proved he was not a minor at the time of the execution
of said note as set forth in the plaintiff's declaration,
and although it was a debt contracted by his father he
had by consenting to sign the said note become under
an obligation of discharging the said debt. Thereupon
the Court after having maturely considered the matter
ordered judgment to be recorded against the defendant for
the sum of fifteen pounds, nineteen shillings and four-
pence halfpenny with interest to be thereon computed
from the twentieth of July last until paid, and the sum
of six pounds, six shillings and twopence costs by them
the plaintiffs sustained in the premises.
Execution issued 19th September, 1789. Returnable
7th January, 1790.
Debt  £15 19 41/2
Costs  6 6 2

£22 5 6I/2

UPPEE CANADA COUET EECORDS.

33

This action was eontinued the twenty-third of July
last for the plaintiffs to prove their demand on this day.
Walter Roe, the plaintiff's attorney being present and
the defendant being called and appeared in person, Mr.
Eoe called on the part of the plaintiffs. " William
Christie " their late clerk being of full age and not
interested in this cause and duly sworn. That to the
best of his knowledge he delivered to Meldrum & Park's
servants, to be carried to the defendant's house, three
hundred and eight bushels of Indian corn agreeable to
the exhibit A now filed in Court from the month of April
to the first of June. That he did not see it delivered but
was the person that counted the bags.
Signed upon the Minutes. Wm. C. Christie.

Meldrum & Park,
of Detroit,
Merchants and
Co-partners in
Trade, vs.
Joseph Barron, of
the Parisli of St.
Anne, Teoman.

By consent of parties the action is continued for
fifteen days.

This action the twenty-third of July last was con
tinued, and ordered that the plaintiffs do prove their
demand this day, the defendant being therefore called
and appeared in person and confessed the principal sum
as before; but denied to have ever agreed to pay interest.
Be it remembered that on the twenty-third day of
July last came before His Majesty's Court of Common
Pleas for the District of Hesse, Meldrum & Park of
Detroit, merchants and co-partners in trade, by Walter
Eoe, their attorney, and then and there declared that the
defendant was justly indebted (in the sum of forty-nine
pounds, six shillings and fivepence currency by a note
of hand, with interest to be computed from the date
thereof) to the plaintiffs, which sum though often demanded
still remained unpaid, and the said Pierre LaBute having
been summoned to appear to answer the plaint of the
said Meldrum & Park in the said declaration set forth,
and thereafter being called personally appeared and denied
to have ever agreed with the plaintiffs to pay interest but
acknowledged the principal sum, and a delay was allowed
to the said Meldrum & Park until the twentieth of August
following to make proof of the allegations in their said
declaration contained, whereupon the said Meldrum &
Park by their said attorney on the twentieth of August
in the same year before the said Court; could not bring
proof that the said Pierre LaBute agreed to pay them
interest as set forth in their declaration, and the said
Pierre LaBute again entered appearance on being called
by the Court and still denied to have agreed to pay the
plaintiffs interest, all which being duly considered by
the Court judgment is recorded against the said Pierre
4a

Meldrum & Park,
vs.
Pierre LaBute.
of the Parish of
L'assomption,Teoman.

UPPEE CANADA COUET EECOEDS.

LaBute that he pay to the said Meldrum & Park the
principal sum of forty-nine pounds, six .-liillings and
fivepence with 
of costs by them sustained.
Execution issued 24th September, 1789. Eeturnable
7th January, 1790.

Debt Costs

£49 6 .5
8 12 6
£57 18 11

William Tjroes-
beck, of Detroit,
Mei'chant, vs.
Joseph Gamelin,
of the Parish of
L'assomption.

This action was entered the twenty-third of July last,
and continued until this day. The defendant being called
and appeared by Walter Eoe his attorney, and the plain
tiff by Charles Smyth his attorney, moved to continue the
action for further testimony, which the C'ourt ordered
accordingly.

John Robert
McDougall,
of Detroit,
Gentleman, vs.
Isaac Germain.
Serjeant in the
65th Regiment of
Foot.

This action was continued last Court day the twenty-
third of July last and ordered that the plaintiff proves
his demand this day. The defendant being thrice called
and not appearing, the plaintiff by his attorney Walter
Eoe, called as evidence Francois Chartre, who maketh oath
that he resided upon Hog Island during a summer season
and that the defendant in this cause put on sixty heaa
of cattle in the month of June and took off forty in
December and desired the witness to take care of the
cattle and he would pay him well, and that if anything
happened to the cattle to advertise the defendant. That
there were sixty head of cattle in the field first and last,
that the said Francois Chartre declares he is not interested
in this cause.

(Signed upon the Minutes.) Feancois Chai5tki^.
(His inarlc.)
The plaintiff's attorney moved to call James^ May as
evidence, whom being of full age and duly sworn-and
declared not to be interested in this cause, savs that he
is a tenant on Hog Island and receives twenty shillings
per head for cattle put on tlie island -for the season,
whether they remain or not.
(Signed on the Minutes.), James May.
This action is continued and remain en deliber^ for
eight days.

UPPEE CANADA COUET RECORDS.

35

This action was entered the twenty-third of July last
and continued to this day for the plaintiffs to prove their
allegations. Walter Roe, attorney for the plaintiffs, filed
his replication and the defendant being thrice called and
not appearing, it is ordered that a default be entered
against him and the action be continued for eight days.

McKellip & Jacob,
of Detroit,
Merchants and
Co-partners in
Trade, vs.
Claude Salaut, of
St. Anne, Teoman.

This action was entered last Court day, the twenty-
third of July, and continued until this day. The defend
ant being called and appeared, and the plaintiff moved
for continuance of the action for eight- days on account
of not having his papers prepared. The same was ordered
accordingly. Walter Roe, attorney for the plaintiff, and the defend
ant entered appearance.

Walter Roe, attorney for the plaintiff, and the defend
ant appeared and acknowledged the debt. The Court
ordered judgment to be recorded against the defendant
for the sum of one pound, twelve shillings and sixpence
currency, with costs of suit being eleven shillings and
eightpence. Walter Eoe, attorney for the plaintiff, and the defend
ant entered appearance.

]\[r. Eoe, for the plaintiff, and the defendant appeared
and acknowledged the debt. The Court ordered judg
ment be recorded against the defendant for the sum of
three pounds, five shillings and fivepence currency, and
the sum of eleven shillings and eightpence for costs.
Walter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered a
default be entered against him.
Walter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered a
default be entered against him.
Walter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered a
default be entered against him.

Thomas Smith,
vs.
J. Bte. Crete, of
St. Anne.

CAUSES UNDER
TEN POUNDS
STERLING. James Fraser. as
Attorney to tlie
Estate of
Jno. Casety,
vs.
Dominique LaBrosse. William Pawling
vs.
Dominique LalBrosse.

James Fraser, as
Attorney to the
Assignees of
Thoma,s Cox,
vs.
Dominique
LaBrosse.James Fraser,
vs.
Dominique LaBrosse.

James Fraser, as
Attorney to the
Assignees of
Thomas Finchiey,
vs.
Dominique La
Brosse.James Fraser as
Attorney to the
Estate of
John Casety,
vs.
Pierre La Bute.
James Prasel*. as
Attorney to the
Assignees of
Thos. Williams
& Company, vs.
Dominique La
Brosse

36

UPPEE CANADA COURT EECORDS.

James Fraser
vs.
Pierre La Bute.

Walter Roe, attorney for the plaintiff, and the defend
ant appeared and confessed the debt. The Court ordered
judgment be recorded against the defendant for the sum
four pounds, four shillings and fourpence halfpenny cur
rency, and the sum of eleven shillings and eightpence
costs.

Execution issued 24th September 1789. Returnable
in one month.

Debt Costs

£4 4 41/2
0 11 8
£4 16 01/2

James Fraser, as
Attorney to the
Assignees of '
Thomas Finchiey,
vs.
Joseph Mallett.
James Fraser, as
Attorney to the
Assignees of
Thomas Finchiey,
vs.
J. Bte. Rheaume.
James Fraser, as
Attorney to the
Assignees of
the estate of
Thos. Williams
& Company, vs.
J. Bte. Rheaume.
Mathew Dolson
vs.
John Sulttor.

J. Bte. Genlack,
vs.
J. Bte. Laflam-
boise.

George McClure
vs.
Andre Decaroux.

Frederick Arnold
vs.
J. Bte. Leduok, flls.

Walter Roe, attorney for plaintiff, and the defendant
appeared. The action is continued at the instance of
the plaintiff's attorney.
Walter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered a
default be entered against him.
Walter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered a
default be entered against him.

Walter Eoe, attorney for the plaintiff, and the defend
ant appeared. The action is continued for fifteen days
for the plaintiff to prove his demand.
The parties appeared and for want of sufficient proof
on the part of the plaintiff the action is continued for
eight days.
The parties appeared, and the defendant acknowledged
to have purchased a watch from the plaintiff, but alleged
to have paid the plaintiff's brother by the plaintiff's con
sent, but cannot produce a receipt. If the defendant
should hereafter produce a receipt from plaintiff's brother
the money must be returned. The Court ordered judg
ment be recorded against the defendant for the sum of
four pounds, ten shillings currency, and the sum of eleven
shillings and eightpence costs by him sustained.
Walter Eoe, attorney for the plaintiff, and the defend
ant appeared, and by consent of parties Claude Rheaume
and Isaac Dolson are nominated to estimate the damages

UPPER CANADA COURT EECOEDS.

37

in the detention of the plaintiff's horses and to call in
the third person in case of difference, reserving to the
Court the right of imprisonment of said horses, and to
raake their report in eight days.
Court adjourned to 27th of August, 1789.
T. S.

Court of Common Pleas held in the Parish of
L'assomption on Thursday, the twenty-seventh day of
August, in the year one thousand seven hundred and
eighty-nine.

Province of
Quebec.District of Hesse.
27 August, 1789.
T.'S.

Present: The Honourable William Dummer Powell,
Esquire, First Judge of said Court.

Walter Roe, attorney for the plaintiff, filed his declara
tion and the defendant appeared in person and confessed
judgment, whereupon the Court ordered judgment to be
recorded against the defendant for the sum of fourteen
pounds, eighteen shillings and fourpence currency, and
the sum of seven pounds, nine shillings and sixpence ot
costs by him sustained.

NEW CAUSES.
Jacques Charron
vs.
Pierre Prout.

Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant being thrice called and not ap
pearing, ordered that a default be entered against him.

John Askin, of
Detroit, Merchant,
vs.
William Lamothe.

Walter Roe, attorney for the plaintiff, filed his declara
tion and the defendant being thrice called and not ap
pearing, ordered that a default be entered against him.

Catherine
Desriviere Lamoinodiers, v,s.
Antoine Dagnio
Dequindre.

This action was continued the twentieth of August
last by reason of a default, and this day the defendant
was thrice called and not appearing, a second default
is ordered to be entered against him, and Walter Roe,
the plaintiff's attorney, agreed to continue the action for
eight days longer, and accordingly the Court made it
a rule.

OLD CAUSES
above ten pounds
sterling.
Jonathan Schieffelin vs.
Francis Fontenoy.

Charles Smyth, acting by procuration for the plaintiff,
agreed to continue the action for eight days after the
defendant being thrice called and the second default
entered against him.

John Askin
vs.
Francis Fontenoy.

The same made a rule that this action be continued
for eight days.

38

UPPER CANADA COURT RECORDS.

Jonathan
Schieffelin vs.
John Visgar.

The defendant being thrice called and not appearing,
ordered that a second default be entered against him,
and Walter Eoe, the plaintiff's attorney, agreed to con
tinue this action for eight days, and accordingly the same
beiiiff made a rule.

James May
vs.
Peter Leukes.

This action was eontinued the twentieth of August
last. The defendant being called for the second time
and appeared, and acknowledged his signature to the
note in question.

District of Hesse.
T.S.

Be it remembered that on the twentieth of August
last came before His Majesty's Court of Common Pleas
for the said District Jaines May, of Detroit, gentleman,
by Walter Eoe, his attornej-, and then and there declared
that the defendant was justly indebted to him in the
sum of eleven pounds, five shillings currency, and the
said Peter Leucks, having been summoned tp appear to
answer the plaint of the said James May in the said
declaration set forth and after being thrice called, entered
appearance, and eight days from the said twentieth of
August given to the said James May to make proof of
the allegations in his said declaration contained, where
upon on the twenty-seventh of August in the said year
came the said James May by his said attorney and pro
duced the said Peter Leukes' note of hand, the signature
of which he the said Peter Leucks, who then appeared
and acknowledged to be his proper hand-writing, where
upon the Court ordered judgment be recorded against
the said Peter Leucks that he pay the said James ilay
the sum of Eleven pounds, five shillings currency, with
six pounds, eight shillings and twopence of costs by him
sustained.

Execution issued 19th September, 178,0. Eeturnable
7th January, 1790.

John Gregory
of Montreal,
Merchant, vs.
William Thorn,
of Detroit.

Debt Costs

£11 5 0
6 8 2
£17 13 2

The defendant being thrice called and not appearing,
ordered a second default be entered against him.
Walter Eoe, attorney for the plaintiff, moved to prove
his demand and to call James Mav then in Court a^
evidence in his behalf whom being of full aoe and not
interested in anywise in the event of this action and

UPPEE CAXA DA COURT RECORDS. 39
being duly sworn, declared that he had often seen the
defendant Wm. Thorn write and verily believe that the
name Wm. Thorn subscribed to the exhibit now filed by
the plaintiff to be of his proper hand writing.

(Signed "iipon the Minutes.) James May.

Be it remembered that on the twentieth of August, District of Hesse.
in the year one thousand seven hundred and eighty-
nine, came before His Majesty's Court of Common Pleas
for the said District, John Gregory, of Montreal, merchant
in the Province of Quebec, by Walter Roe, his attorney,
and then and there declared that the said William Thorn
was justly indebted in the sum of sixty-seven pounds.
twelve shiUings and one penny currency, and the said
William Thorn having been summoned to appear to
answer the plaint of the said Jno. Gregory in the said
declaration set forth, and being thrice called and not
appearing, the default of said William Thorn was recorded
and the eighth day from the said twentieth of August
(the date of the return) given to the said John Gregory
to make proof of the allegations in his said declaration
contained: whereupon on the twenty-seventh of August,
in the said year came the said John Gregory by his
said attorney and made proof by the oath of James
May, of Detroit, gentleman, that the name Wm. Thorn
subscribed to a certain note of hand then by the said
.Tno. Gregory's attorney to the Court produced (and on
which the demand of the said John Gregory in his declara
tion was grounded) was of the proper hand-writing of
said William Thorn, and thereupon the said William
Thorn being again thrice called and not appearing, the
said John Gregory by his said attorney prayed that his
second default might be recorded and that for the profit
of such default obtained he might have judgment for
his said debt and costs, all which being duly considered
by the Court, judgment is recorded against the said
William Thorn that he pay to the said John Gregory
the sum of sixty-seven pounds, twelve shillings and one
penny currency of this Province with 
of co.'its by him sustained, and interest from the twenty-
ninth of July last, until perfect payment, on the said
sura of sixty-seven pounds, twelve shillings and one penny.
The defendant being called three times and not appear- Leith & Shepherd,
ing, ordered that a second default be entered against him, wiiiiam Thorn.
and Mr. Roe, the plaintiff's attorney, moved for a further
delay of eight days to prove his demand.

40

UPPER CANADA COURT RECORDS.

Isaac Williams
vs.
Jacques Charron.

Walter Roe, attorney for the plaintiff, and the defend
ant, appeared. Ordered a peremptory delay for one
month.

Hugh Heward
vs.
John A.skln.

Walter Roe, attorney for the plaintiff, and Charles
Smyth acting by procuration for the defendant, and by
consent of parties the Court order the action to continue
for eight days.

Isaac Dolson
vs.
Joseph Pernier
dite "S'ade-
boncoeur.

Walter Roe, attorney for the plaintiff. The defendant
appeared and by consent of parties, the Court order a
continuance for eight days.

Meldrum & Paik
vs.
Jean Bte. Crete.

Walter Roe, attorney for the plaintiff. The defend
ant appeared, and by consent of parties the Court order a
delay of eight days.

John Urquhart
vs.
John Askin.

Charles Smyth, acting by procuration for plaintiff, filed
replication and Walter Roe, for the defendant filed plea.

Richard Dobie
vs.
John Martin.
District of Hesse.
T.S.

Walter Roe, attorney for the plaintiff, the defendant
being thrice called and not appearing. This is an action,
the gist of which is a record of judgment in another Court.
To this the defendant has pleaded that he owes nothing,
but as he has set up no payment on release of judgment,
I must presume the meaning of his plea to be the proper
issue and a traverse of the record or judgment. It seems so
to be understood by the replication of the plaintiff who
again relies upon and proffers the record. The evidence
filed is equally insufficient to support the action upon the
rules of evidence either of the ancient or present laws of
the Province, the office copy of the record being neither
upon parchment or under seal; Wherefore the Court con
siders that judgment be entered as in case of a nonsuit.

William Groesbeck
vs.
Joseph Gamelin.

Mr. Charles Smyth, acting by procuration for the
plaintiff, and Mr. Walter Roe, attorney for the defendant,
entered appearance, and by consent of parties the action
ordered to be continued for eight days.

McKellip & Jacob
vs.
Claude Salaut.

Walter Roe, attorney for the plaintiff. The defend
ant being thrice called and not appearing. It is ordered
that a second default be entered against him, and for the
want of sufiicient proof on the part of the plaiptiff that
the defendant took the goods in question upon himself
eight days delay is allowed to prove his demand.

UPPEE CANADA COUET RECORDS.

41

Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing.

John Roberta
McDougall vs.
Isaac Germain.

Be it remembered that on the sixteenth day of July,
in the year one thousand seven hundred and eighty-nine,
came before His Majesty's Court of Common Pleas for
the said District, John Robert McDougall, of Detroit,
gentleman, in the said District, by Walter Roe, his attorney,
and then and' there declared that Isaac Germain, serjeant
in the Sixty-fifth Regiment of Foot, was justly indebted
to him in the sum of thirty pounds, nine shillings and
sixpence, currency, for the grazing of cattle on Hog Island
during the summer and autumn, one thousand seven
liundred and eighty-eight, and that the said Isaac Germain,
having been summoned to appear to answer the plaint of
said John Robert McDougall, in his said declaration set
forth, and being thrice called and not appearing, the de
fault of the said Isaac Germain was recorded, and the
eighth day frpm the said sixteenth of July, given to the
said John Robert McDougall to make proof of the allega
tions in his said declaration contained, whereupon on the
twenty-third of July, in the said year, came the said John
Robert McDougall by his said attorney, and the said Isaac
Germain being again thrice called and not appearing,
the second default of the said Isaac Germain was
recorded and a further delay was allowed to the
said John Robert McDougall to make proof of his
demand from the said twenty-third of July to the twentieth
of August, following, upon which day the said Isaac
Germain was thrice called and not appearing, and the
plaintiff, by his said attorney, made proof by the oath of
Francois Chartre that the said Isaac Germain had sixty
head of cattle on Hog Island first and last, and by the oath
of James May, Tenant of Hog Island, that he received
twenty shillings per head for cattle put upon said Island
for and during the season whether they remained or not,
and from the said twentieth day of August the action
remained en delibere until the twenty-seventh of the same
month in the same year on which day the defendant was
again thrice called and not appearing, all which being duly
considered by the Court judgment is recorded against the
said Isaac Germain, that he pay to the said John Robert
McDougall the sum of thirty pounds, nine shillings and
sixpence, currency of this Province, with interest from the
said twentieth day of August until actual payment, and
the sum of nine pounds, nine shillings and fivepence of
costs by him sustained.

Province of
Quebec. '
District of Hesse.
T.S.

5A

42 UPPER CANADA COURT EECORDS.

Execution 19th September, 1789. Returnable 7th
.January, 1790.
Debt  £30 9 6
Costs  9 9 5
£39 18 11
Writ  0 5

£40 3 11

Alias fi. fa. issued 2nd October, 1789. Returnable
the first Court day in June, 1790.

Debt 
Subsequent costs

£40 3 11
1 15 0
£41 18 11

Thomas Smith,
Esq., vs.
Jean Bte. Crete.
Walter Roe, of
full age and dis
interested, acted
as Clerk and duly
Sworn. Signed, W.D.P.

District of Hesse.
,T.S.

The parties appeared in person, and the plaintiff came
forth and filed the report made on the account of Hugh
Heward and John MePherson, being auditors mutually
chosen by the parties interested, to which report they now
both agree to, and the defendant thereupon confessed
judgment. Signed Walter Eoe.
Be it remembered that on the twenty-third of July, in
the year one thousand seven hundred and eighty-nine,
came before his Majesty's Court of Common Pleas for the
said District, Thomas Smith, Esquire, and then and there
declared that Jean Baptiste Crete, of Detroit, was justly
indebted to him in the sum of nine hundred and thirty-
four pounds, fifteen shillings and threepence, currency of
the Province of Quebec, and the said Jean Baptiste Crete
having been summoned to appear to answer the plaint of
the said Thomas Smith in the said declaration set forth,
and the defendant being called and entered appearance,
and twenty-eight days was allowed to the plaintiff to make
proof of the allegations in his said declaration contained,
whereupon on the twentieth of August, in the said year,
came the said Thomas Smith and prayed continuance for
eight days longer for to make proof of his allegations,
which was granted with the consent of the defendant, and
on the twenty-seventh of August and parties again ap
peared, and the plaintiff filed a report of auditors by them
mutually chosen to which the defendant declared to have
no manner of objections to the same and confessed judg
ment. Thereupon judgment is recorded against the said

UPPER CANADA COURT RECORDS.

43

Jean Baptiste Crete that he pay to the said Thomas Smith
the sum of seven hundred and seventy-five pounds, six
shillings and sixpence, currency of the Province of Quebec,
with lawful interest from the twentieth of July last in the
said year until actual payment and the sum of 
of costs by him sustained.
Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not apearing. The plaintiff
filed the defendant's- note of hand.

Walter Roe, for the plaintiff, moved to mend his de
claration, which was granted by the Court and ordered that
a Rule be served upon the defendant to appear in this
Court on Thursday next.

CAUSES UNDER
TEN POUNDS.
James Fraser as
Attorney to the
Assignees of
Thomas Finchiey,
vs.
Dominique La
Brosse. JameiS Fraser, as
Attorney to the
Assignees of the
Estate of Thomas
Williams & Coy.,
vs.
Jean. Bte.
Rheaume.

Walter Roe, for the plaintiff, filed Award and the de
fendant appeared and by consent of parties the action is
continued for eight days.

Frederick Arnold
vs.
Jean Baptiste
Laduck, fils.

The parties appeared, and for further testimony the
action is continued for eight days.
The Court adjourned to 3rd September.

Francois Latour
vs.
Louis Trudel.

Court of Common Pleas.

Thursday the 3rd day of September, 1789.

Province of
Quebec.
District of Hesse.
3 Sept., 1789.
Present: The Honourable William Dummer Powell, t.s.
Esquire, First Judge of said Court.

John Smith, Pierre Sera dite Lavictoire, and Joseph
Elam, sworn in this day as Bailiffs. T.S.

AValter Roe, for the plaintiff, filed his declaration and
two notes of hand. The defendant appeared and aeknowl-

James Fraser,
Curator to the
Succession of
edged the notes as set forth in the plaintiff's declaration; vs.
but for plea prayed continuance for eight days. ^^^ ^^

Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant apepared in person and denied his
signature to a certain note of hand as set forth in the
plaintiff's declaration. The action is continued for eight
days for the plaintiff to prove the note.

James Fraser,
Curator to the
Succession of
Samuel Judah,
vs.
Charles St. Obean.

44

UPPER CANADA COURT RECORDS.

Magdelalne Pel
tier, spouse of
Jacques Peltier,
vs.
Laurent Maure.

The plaintiff filed her declaration, and the defendant
appeared in person. The Court having taken the matter
into consideration and find that the plaintiff is under
coverture and not authorized by a letter of attorney from
her husband. It is ordered that the action be dismissed.

Thomas Finchiey
vs.
Jean Baptiste
Cecot.

Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant appeared in person and confessed
thei debt as specified in a note of hand set forth in the
plaintiff's Declaration.

Province of
Quebec.District of Hesse.
T.S.

Be it remembered that on the third day of September,
came before His Majesty's Court of Common Pleas for the
said District, Thomas Finchiey, by Walter Roe his attorney,
and then and there declared that the defendant was justly
indebted in the sum of twenty-one pounds, one shilling
and lOd., currency of the said Province, and the said
Jean Bte. Cecot having been summoned to appear to
answer the plaint of the said Thomas Finchiey in the said
declaration set forth, and then and there before the said
Court confessed judgment, whereupon judgment was ac
cordingly recorded against the said Jean Bte. Cecot that
he pay to the said Thomas Finchiey the sum of twenty-
one pounds, one shilling and tenpence, currency of said
Province, with six pounds, seven shillings and sixpence of
costs by him sustained.

Execution issued 19th September, 1789. Eeturnable
7th January, 1790.

Debt Costs

£21 6

1 10
7 6

£27 9 4

Thomas Flncniey
vs.
Pierre Chene.

Walter Eoe, for the plaintiff, filed his declaration and
a note of hand. The defendant appeared and acknowl
edged the said note, but said he had made sundry pay
ments on account which were not endorsed. The Court
thereupon ordered the plaintiff to produce his books and
prove the allegations as set forth in his declaration in
eight days.

Jean Baptiste
Tourongeau,
L'assomption, vs.
Francois Latour.

_ AA alter Eoe, attorney for the plaintiff, filed his declara
tion. The defendant appeared in person and denied that
he owes anything to the plaintiff, that he has settled all
accounts with him in proof of which he has filed an
acquittance.

UPPEE CANADA COURT RECORDS.

45

Walter Roe, for the pLintiff, filed declaration and the
defendant being thrice called and not appearing. It is
ordered that a default be recorded against him.
Walter Roe, for the plaintiff, filed declaration, and
the defendant appeared and denies to owe anything to the
plaintiff. Mr. Roe, the plaintiff's attorney, replies that
the defendant is indebted agreeable to his declaration, and
on his motion it is ordered that a rule be entered for trial
next Court day, the tenth instant.

Richard Dobie,
of Montreal,
Merchant, vs.
John Martin,
of Detroit,
Merchant.
James Fraser,
Attorney by Pro
curation of
Thomas Cox,
vs.
Pierre LaBute, of
L'assomption.

Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant personally appeared and acknowl
edged the debt specified by a note of hand now filed by
the plaintiff.
Be it remembered that on the third day of September,
in the year one thousand seven hundred and eighty-nine,
came before His Majesty's Court of Common Pleas for
the said District, James Fraser, Curator to the Succes
sion of Thos. Williams & Co'y., by Walter Roe, his attorney,
and then and there declared that Rene Cloutier, of
L'assomption, was indebted to him in the sum of forty-
seven pounds, five shillings, currency of said Province, due
by a note of hand, and the said Rene Cloutier having been
summoned to appear to answer the plaint of the said James
Fraser, and then and there before the said Court acknowl
edged the note as set forth in the plaintiff's declaration,
whereupon judgment is recorded against the said Rene
Cloutier that he pay unto the said James Fraser the sum
of forty-seven pounds, five shillings, currency of said Pro
vince with  of costs by him sustained, and the
interest of six per cent, on the said forty-seven pounds, five
shillings from the first of August last until, perfect
payment.

James Fraser,
Curator to the
Succession of
Thos. Williams
and John Casety,
vs.
RenS Cloutier, of
L'assomption.

Province of
Quebec.
District of Hesse.
T.S.

Execution issued 19th September, 1789. Returnable
7th January, 1790.
Principal sum  £47 5 0
Costs 

Walter Roe, attorney for the plaintiff, filed his declara
tion, and the defendant being called and entered appear

ance.

James Abbott,
of Detroit,
Merchant, vs.
Jean Bte. Campeau,
of St. Anne,
Teoman.

46

UPPEE CANADA COURT EECOEDS.

Charles iMcCormlck
vs.
Alexander McKee,
Esquire, lOf
Detroit, D. Agent
of Indian affairs.

Charles Smyth, attorney for the plaintiff, by special
procuration filed his declaration, and Walter Roe, attorney
for the defendant, entered appearance.

Antoine Jalbert
vs.
JonathanSchieffelin.

Charles Smyth, attorney for the plaintiff, by procura
tion filed his declaration. The defendant appeared and
says that he owes nothing to the plaintiff, but that he is
indebted to him two hundred and thirty-one livres, for
which he prays to become an incidental plaintiff and filed
the plaintiff's engagement subscribed by him at Detroit,
and offers to' bring proof that the defendant did not per
form his engagement, and also files the account, items of
which he begs leave to prove.

John Askin,
of Detroit,
Merchant. vs.
William Lamothe,
Esq., of the same
place. Province of
Quebec.
District of Hesse.
T.S.

Walter Eoe, for the plaintiff, and the defendant being
thrice called and not appearing, ordered that the second
default be recorded against him.

Be it remembered that on the twenty-seventh day of
August, in the year one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, John Askin, of Detroit,
merchant, by AA'alter Eoe, his attorney, and then and there
declared that the defendant was justly indebted to him in
the sum of twenty-three pounds, eleven shillings, currency
of said Province, and the said William Lamothe having
been summoned to appear to answer to the plaint of the
said John Askin in the said declaration set forth, and
being thrice called and not appearing the default of the
said William Lamothe was recorded, and the eighth day
from the said twenty-seventh of August given to the said
John Askin to make proof of the allegations in the said
declaration contained, whereupon on the third day of
September, in the said year, came the said John Askin,
by his said attorney, and the said William Lamothe beiag
again thrice called and not appearing, the said John Askin,
by his said attorney, prayed that his second default might
be recorded, and that for the profit of such default ob
tained he might have judgment for his debt and costs, all
which being duly considered by the Court judgment is
recorded against the said William Lamothe, that he pay to
the said John Askin the sum of seventy pounds, three
pounds, eleven shillings, currency of the said" Province,
with interest from the twenty-sixth of August last Until
perfect payment and the sum of  costs bv him
the said John Askin sustained.

UPPEE CANADA COURT RECORDS.

47

Walter Roe, attorney for the plaintiff, and the defend- gt^^f^j^^^,
ant being thrice called and not appearing, ordered the Lamoinodiers
second default be entered against him.

Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing.
Called as Evidence.
Mr. Charles Gouin, due Detroit, Marchand temoine
apple le part du demandeur appre serment faite sur le
Saint Evangelle a declare qu'il n'est aucunement interesse
dans I'evenement de cette poursuit et quil a connaisanee
que le nomme Charles Bellard engage du demandeur ette
employer au service du defendeur I'hivert dernier, que le
deposent ette present a une dispute entre le demandeur et
defendeur ou il a pris que I'homme ette engage jusque
au fin de Juin, et que'l quitte de service de Fontenoy au
quators de Juin il refuser de tenire compte a M. Schieffelin
de ce gage il dise que c'ette forfeit par son desertion — que
le deposent avoit entendre dire que M. Schieffelin devoit
avoir vingt ponds pour le service de son engage jusque k
la fin de Juin, que le dite Mr. Gouin avoit aucune con
naisanee de cette vingt ponds ette payer — et que le engager
Bellard a laisser de service du defendant vers le cinq de
Juin dernier. (Signe) Charles Gouin.
John Askin, junior, of full age and not interested in
this cause, called as evidence on the part of the plaintiff
and duly sworn. That he was present at the execution of
the exhibit B, now filed in Court, and that he saw Charles
Bellair make his mark at the foot thereof and knows him
to be the same person who was transferred by Mr.
Schieffelin into. the service of Francis Fontenoy.
(Signed upon the Minutes),
John Askin, Jun.
Be it remembered that on the twentieth day of August,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, Jonathan Schieffelin, of Detroit,
gentleman, by Walter Roe, his attorney, and then and there
declared that Francis Fontenoy, of Saguinau, trader, was
justly indebted to him in the sum of twenty-four pounds,
two shillings and sixpence, and the said Francis Fontenoy
having been summoned to appear to answer the plaint of
the said Jonathan Schieffelin in his said declaration Fct

vs.
Her husband,
Antoine Daginis
Dequindre.
Jonathan Schieffelin vs.
Francis Fontenoy,
of Saguinau,
Trader.

Province of
Quebec. District of Hesse.
T.S.

48

UPPER CANADA COURT EECOEDS.

George Leith and
Thomas Shepherd,
of Detroit,
Merchants and
Co-partners, vs.
iWIlliam Thorn.

forth and being thrice called and not appearing, the de
fault of the said Francis Fontenoy was recorded, and
eight days allowed to the said Jonathan Schieffelin to make
proof of the allegations in his said declaration contained,
whereupon on the twenty-seventh day of August in the
said year came the said Jonathan Schieffelin by his said at
torney, and the said Francis Fontenoy being again thrice
called and not appearing, the second default ordered to be
recorded against him and the action to be continued for
eight days longer by consent of the plaintiffs, and on the
third of September in the same year came the said Jonathan
Schieffelin again by his said attorney and made proof by
the oath of Charles Gouin and John Askin, Junior, all
which being duly considered by the Court judgment is
recorded against the said Francis Fontenoy, that he pay
to the said Jonathan Schieffelin the sum of twenty-four
pounds, four shillings and sixpence, currency of said Pro
vince, with lawful Interest from the twentieth of July,
last, until perfect payment and the sum of 
costs by him sustained.
Walter Eoe, attorney for the plaintiff, filed a bond and
the defendant being three times called and not appearing,
called as evidence John McGregor of full age and not in
terested in the event of this action, and being duly sworn,
" says to have seen the said William Thorn sign the ex
hibit A now filed in Court."
(Signed, on the Minutes), John McGregor.

Province of
Quebec. District of Hesse.
T.S.

Be it remembered that on the twentieth of August, in
the year one thousand seven hundred and eighty-nine, came
before His Majesty's Court of Common Pleas for the said
District, George Leith and Thos. Shepherd, of Detroit,
merchants and co-partners in trade by Walter Eoe, their
attorney, and then and there declared that the said William
Thorn was justly indebted to them in the sum of twenty-
nine pounds, nine shillings, currency of the said Province,
and the said William Thorn having been summoned to
appear to answer the plaint of the said Leith and Shepherd
in their said declaration set forth, and being thrice called
and not appearing the default of said William Thorn was
recorded, and eight days given to the said Leith and
Shepherd to make proof of the allegations in their said
declaration contained, whereupon on the twenty-seventh of
August, in the said year, came the said Leith and Shepherd,
by their said attorney, and prayed further delay to make
proof of their allegation, and the said William Thorn was
again thrice called and not appearing and the second de-

UPPER CANADA COURT RECORDS.

49

fault was recorded against him. On the third of Septem
ber in the said year came the said Leith and Shepherd, by
their said attorney, and made proof by the oath of Jno.
McGregor that the name AVilliam Thorn subscribed to a
certain note of hand then by fhe said Leith and Shepherd
to the Court produced was of the proper hand writing of
the said William Thorn, and the said William Thorn being
again thrice called and not appearing, all which being
duly considered by the Court, judgment is recorded against
the said William Thorn that he pay to the said George
Leith and Thomas Shepherd the sum of twenty-nine
pounds, nine shillings, currency of the said Province, with
 -. . . . of costs by them sustained with interest
from the twenty-ninth of July last, until perfect payment.

Walter Roe, attorney for the plaintiffs, and Charles
Smyth, acting by special procuration for the defendant,
entered appearance and by consent of parties the action is
continued for eight days.

.Meldrum & Park,
of Detroit,
.VIerchants, vs.
Jean Bte. Crete,
Timber Merchants.

Walter Roe, attorney for the plaintiff, and Charles
Smyth, by procuration for the defendant. On motion of
Mr. Roe the Court order the record to be made up.
Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, the action is
continued at the instance of Mr. Roe.
Walter Roe, attorney for the plaintiff, and the defend
ant entered appearance and by consent of parties the action
is continued for eight days.

Hugli Heward, of
Detroit, Gent.,
vs.
John Askin,
of the same place.
Merchant. Isaac Dolson, of
L'assomption,Yeoman, vs.
Joseph Parnler,
dite Vadboncoeur.
McKillip and
Jacobs vs.
Claude Solaut.

Charles Smyth, acting by procuration for plaintiff,
and Walter Roe, attorney for defendant, and on motion of
Mr. Smyth the action continued for trial in eight days.
Charles Smyth, acting by procuration for the plaintiff,
and Walter Roe, attorney for the defendant, on motion of
Mr. Smyth this action to continue for trial in eight days.
Charles Smyth, acting by procuration for the plaintiff,
and the defendant being thrice eaVed and not appearing —
called as evidence on the part of the plaintiff, William
Christie, of full age and not interested and duly sworn and
the exhibit marked A being shown to him and declared to
have been present when the said Francis Fontenoy sub
scribed the initials of his name F. F. to the said exhibit."
(Signed on the Minutes), Wm. Christie.

William Groesbeck
vs.
Joseph Gamelin.

John Urquhart,
of Detroit,
Gentleman, vs.
John Askin.

John Askin,
of Detroit,
Merchant, vs.
Francis Fontenoy,
of Saguinau,
Trader.

50

UPPER CANADA COURT RECORDS.

Province of
Quebec.
DIotriot of Hesse.
T.S.

Jonathan Schieffelin, of
Detroit, Gent.,
vs.
John "Visgar, of
Saguinau, Trader.

Be it remembered that on the twentieth day of August,
in the year one thousand seven hundred and eighty-nine,
came before His Majesty's Court of Common Pleas for
the said District, John Askin, of Detroit, merchant, by
Charles Smyth, his attorney, by special procuration, and
then and there declared that the said Francis Fontenoy
was justly indebted to him by note of hand in the sum of
nine hundred and nineteen pounds, thirteen shillings and
ninepence, currency, of this said Province, and that the
said Francis Fontenoy, having been summoned to appear
to answer the plaint of the said John Askin in his said
declaration set forth, and being thrice called and not ap
pearing the default of the said Francis Fontenoy was re
corded, and eight days allowed to the said John Askin to
make proof of the allegations in his said declaration con
tained and on the twenty-seventh of August in the said
year came the said John Askin, by his said attorney, and
the defendant being again thrice called and not appearing,
upon which it was ordered that a second default be entered
against him (and by consent of plaintiff a rule for con
tinuance for eight days, whereupon on the third day of
September in same year came the said John Askin, again
by his said attorney, and made proof by the oath of William
Christie that the letters F. F. to a certain note of iand
then produced to the Court and on which the demand of
the said John Askin in his said declaration was grounded,
is the proper mark of the said Francis Fontenoy, and there
upon the said Francis Fontenoy, being again thrice called
and not appearing, all which being duly considered by the
Court, judgment is recorded against the said Francis
Fontenoy that he pay to the said John Askin the sum of
nine hundred and nineteen pounds, thirteen shillings and
ninepence, currency of said Province, with nine pounds,
seven shillings and sixpence, of costs by him sustained, and
interest from the twentieth of July last, until actual pay
ment. Debt  £919 15 9
Costs   9 7 6

£929 1 3
Execution issued. Eeturnable 24th June, 1790.
Walter Eoe, attorney for the plaintiff, and the defend
ant being three times called and not appearing — called as
evidence on the part of the plaintiff Charles Gouin, of
Detroit, merchant, not interested in this cause and duly
sworn, and says, "Que il y ait connoisance de Mr.
Schieffelin avez laisse du suere chez Mr. Visgar quelle. con

dition il se pas.

(Signe) Charles Gouin.

UPPER CANADA COURT RECORDS.

51

Called the second evidence on the part of the, plaintiff
Robert Gourneau, of full age and not interested, and duly
sworn and says, " II sai, que dans le mois de Mai au com
mencement de Juin dernier que Mr. Schieffelin a deposer
au chez Mr. A'isgar dix quarts et deux barril du sucre que
lui avez laisse pas que son batteaux ette trop charger, et que
les quarts ette plus que trente gallons chaque."
(Signe) Robert Gourneau.
(Sa Mark.)
Called the third evidence on the part of the plaintiff of
full age and not interested, and duly sworn and says that
he does not know anything respecting the said sugar.
The action continued by consent of the plaintiff for
eight days. (¦
AA^alter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, ordered that a
default be entered against him.
The sheriff made his return with divers oppositions
annexed to the sale of the effects seized — and cannot any
further proceed until the claims of the different opponents
are first satisfied and paid; or secured upon the proceeds.
In support of his opposition produces Jean Bte. Baubien
and Andre Peltier, who being duly sworn deposeth and
saith. First- Jean Bte. Baubien: "Que Guillaume Gyeaux
lui a dit plusieur fois, il y ait deux mois meme que son
nephew Nicholas Gyeaux opposent avez semmez chez lui
en scosiete douze meiiiot de bled fremnient, douze minot de
voine et une minot des poids et que lui eroix dans sa
conscience pour est veritable." (Signe) Jean Bte. B.^ubiex.

.Meldrum & Park
vs.
Joseph Barron.

Thomas Cox
vs.
William Gyeaux.

On the opposition
of Nicholas Gyeaux

The Second, .\ndre Peltier, que L'automne passer:
" Nicholas Gyeaux I'opposent a proposer semmez la terre de
son oncle a motie et laisser la sciene en park, qu'il sai qui
Nicholas Gyeaux a fait la Garais chez son oncle, et que il
croix dans sa conscience s'ette a mattier entre I'onele et
nephew." (Signe) Andre Peltier (sa marque
after read to the Deponant. T.S.)
The said Baubien being sworn further declares : " Que on the opposition
„ ^, , -r. , 1 . Tl of Charles Prout.
Guillaume Gyeaux et Charles Prout lui avez dit que ce
derniere ett6 en simmenser chez le primiere une piece de

52

UPPEE CANADA COURT RECORDS.

bled fremment de une piece de voine a son proper profit."
On a question by Mr. Roe that plaintiff's attorney further
says : " Que ce qu'il entendu acclamme le recolt chez
Gyeaux par Charles Prout, qui ce jour passer depuis I'in
struction de proces."
Nicholas Gyeaux, being sworn and not interested in
this present claim and of full age says : " Que il y ont la
terre son oncle a mattier. Prout avez demander permis
sion de semmez pour lui meme une piece et qu'il y ait con-
noissance actuel que Prout avoit cultivier et simmense
cette piece sans aucune aide de Guillaume Gyeaux — que
qu'il croix avoir cinq meniot de bled frommiant et quatre
minot de voine."

On the opposition
of Louis Gyeaux.

^ The opponent produces N icholas Gyeaux his brother
as evidence to support his claim, whereupon Mr. Roe, the
plaintiff's attorney opposed his testimony being received
in as much as he is not a competent evidence as required
by law " being a brother to the opponent " — the Court will
consider of the objection; and Nicholas Gyeaux being
sworn " Que appre I'instruction de ce proces mai devant
le jugement rendu son oncle Guillaume Gyeaux lui a dit
que une de ce vache ettoit a Louis Gyeaux le opposent que
lui a livre la vache a son frere que lui a laisser dans le
park de opposent avec"^les otre annimaux de defendant et
qui cette vache et une de eelle prix en execution."

(Signed) Nicholas Gyeaux (sa mark
after being read to the Deponent. T. S.)

Court admits on
the opposition of
N. Gyeaux.

The produce of twelve bushels of wheat, twelve bushels
of oats and one bushel of peas to be divided in equal parts,
one-half to the deponent and one-half to be sold by the
Sheriff for part satisfaction of the plaintiff's judgment.

Court admits on
the opposition of
C. Prout.

The proceeds of five bushels of wheat and the proceeds
of an Indian corn patch, situate about twelve acres from
the River, which the Sheriff is hereby authorized not to
take, and is, therefore, discharged of so much of the
proceeds.

Court admits on
the opposition of
Louis Gyeaux.

The seizure of a small red cow is discharged, which the
Sheriff will deliver up to him.

On the opposition
of Alexis Maison-
ville.

It being not sustainable the Court order the Sheriff
to proceed without any further regard thereto.

UPPER CANADA COURT EECORDS.

53

The parties appeared, and after hearing their allega
tions the Court duly considered the same and thereupon
¦ordered judgment to be recorded against Hypolite Lasal-
line, that he pay to the said J. Bte. Parry the sum of six
pounds and tenpence, currency of Quebec, with 
¦of costs by him sustained.

causes under
ten pounds
sterling.
J. Bte. Parry
vs.
Hypolite Lasalline.

AValter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, the Court after
taking the matter into consideration ordered judgment be
recorded against the defendant, that he return the meat
of a hog which he killed belonging to the plaintiff (or to
pay him three pounds. New York currency) and pay the
sum of  costs by him sustained.

Philip Fox
vs.
Pierre Durand.

Eoe, attorney for the plaintiff, and the defendant being
thrice called and not appearing.

Thomas Cox
vs.
Jordan Ivory,

Walter Eoe, attorney for the plaintiff, and the defend
ant appeared. Upon confession of the debt judgment
ordered to be recorded against the defendant, that he pay
the plaintiff two pounds, eighteen shillings and one penny,
and eleven shillings and eightpence of costs by him sus
tained.

Thomas Finchiey
vs.
loseph Mallet

Execution 3rd October, 1789.
month.

Eeturnable in one

Debt  £2 18 II/2
Costs  0 11 8
Halifax  £3 9 91/2

AValter Eoe, attorney for the plaintiff, and the defend- cu™aTor to^the
ant appeared and denied the note as set forth in the plain- |"^uei j°ud.ah,
tiff's declaration— the action continued for eight days. Joseph Maiiet

The Court, after hearing the parties, ordered judgment
be recorded against the defendant for the sum of six
pounds, ten shillings and sixpence, currency, and eleven
shillings and eightpence costs by him sustained.

Francois Billet
vs.
Mitchei Yack.

,The parties apeared and after weighing the matter of
difference the Court order the plaintiff to finish his work
according to agreejment, and the defendant to pay the
said Francois Billet four pounds and sevenpence halfpenny,
currency, and eleven shillings and eightpence of costs. •

Francois Billet
vs.
Mitchei Yack, fils.

54

UPPEE CANADA COURT RECORDS.

.lames Fraser,
Curator to the
Succession of
John Casety,
vs.
Ren6 Cloutier.

James Fraser,
as Attorney to the
Estate of Thos.
Williams & Coy.,
vs.
J. Bte. Rheaume.

AValter Roe, attorney for the plaintiff, and the defend
ant in person appeared, and after weighing the matter of
difference the Court order the defendant to pay the plain
tiff the sum of six pounds, six shillings and sixpence half
penny, currency, aud eleven shillings and eightpence costs
by him sustained.
AValter Eoe, attorney for the jjlaintiff, and the defend
ant being thrice called and not appearing, the action is
eontinued at the instance of Mr. Eoe.

James Fraser,
Attorney to the
Assignees of
Thomas Finchiey,
vs.
Dominique La
Brosse.

AA'^ alter Eoe, attorney for the plaintiff, and the defend
ant appeared.
The Court, after adjusting the matter of difference,
ordered judgment be recorded against the said Dominique
LaBrosse, that he pay unto the said James Fraser the sum
of two pounds, eleven shillings and tenpence halfpenny,
currency, with eleven shillings and eightpence of costs by
him sustained.

Francois Latour
vs,
Louis 'Trudell.

The parties appeared and after adjusting the matter of
difference judgment was recorded against the said Louis
Trudell, that he pay unto the said Francois Latour ten
pounds, currency; (in return to the plaintiff four hundred
and fifty pounds of fiour) with eleven shillings and eight-
pence costs by him sustained.

Fredei ick Arnold
vs.
J Bte. Laduc,
flls.

The plaintiff appeared by AValter Eoe, his attorney, and
the defendant being called and appeared. The Court took
into consideration the report of auditors upon the mattei
in dispute who were nominated by consent of the parties tc
report on their difference. AVhereupon the Court order
judgment be recorded against the said Jean Bte. Laduc
fils, that he pay unto the said Frederick Arnold the sum of
ten pounds of the currency of New York, equal to six
pounds, five shillings, currency of Quebec, and the sum of
 costs by him sustained.

Mathew Dolson
vs.
John Suittor.

Province of
Quebec.District of Hesse.
10 September, 1789
T.S.

The parties appeared and after taking into considera
tion the difference between them the Court ordered that
the said John Suittor pay unto the said Mathew Dolson the
sum of nine pounds, eleven shillings and elevenpence, cur
rency, and the sum of  costs by him sustained.
Court adjourned to the 10th September.
Court of Common Pleas held at L'assomption on
Thursday, the 10th day of September, 1789.
Present: The Honourable AA'illiam Dummer Powell,
Esquire, First Judge of said Court.

UPPER CANADA COURT RECORDS.

65

The plaintiff appeared and filed his declaration and the
defendant in person acknowledged the debt and agreement
for the rent of a house, but that he had lost several articles
out of the said house owing to the carpenters making re
pairs in the said house before his time was expired.
The plaintiff replied that he neither entered nor author
ized anyone to enter the said house before the defendant's
time was expired.

Jacques Peltier
vs.
Laurent Maure.

Be it remembered that on the tenth day of September,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Com
mon Pleas for the said District, Jacques Peltier, of the
Parish of St. Anne, and then and there in person declared
that the said Laurent Maure was to him justly indebted in
the sum of twenty-seven pounds, sixteen shillings, cur
rency- of said Province, for the rent of a house, and the
said Laurent Maure, having been summoned to appear to
answer the plaint in the said declaration set forth, and
then and there accordingly did appear and confessed the
debt to be just, but pleaded he had lost several articles out
of the said house owing to a certain Jean Bte. Crete, with
his men, making repairs in the said house before his time
was expired. The said Jacques Peltier replied that he
neither entered himself nor authorized any person what
soever so to do before the defendant's time was expired,
all which being duly considered by the Court judgment is
recorded against the said Laurent Maure, that he pay
unto the said Jacques Peltier the sum of twenty-seven
pounds, sixteen shillings, currency, and  of
costs by him sustained with interest from the eighth of
September, last, instant, until perfect payment, with re
course against the said J. B. Crete for damages in his
allegation set forth.

District of Hesse.

Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, but a letter was
received from him setting forth his plea accompanied with
a certificate, exhibit A, now filed.

Jean Baptiste
Petre vs.
Alexander Harrow.

Charles Smyth, acting by procuration for the plaintiff,
and Walter Eoe, Esq., attorney for the defendant, entered
appearance.

John Askin
vs.
Antoine Dequindre.

Charles Smyth, attorney for the defendant, filed his
agreement with the plaintiff and produced Jno. Martin as
evidence. The Court allowed the plaintiff eight days to
prove his allegations.

CAUSES UNDER
TEN POUNDS
STERLING. Antoine Boullard
vs.
Rich'd Pollard.

66

UPPEE CANADA COUET EECOEDS.

Hyacinth
Latourelle vs.
William Groesbeck.

The parties appeared and the defendant is ordered to
give the plaintiff his account before eight days; and then
if the defendant falls in- debt to the plaintiff he has a re
course to the Court.

Thomas Cox
vs.
lordan Ivory.

This cause stands over at the instance of Mr. Eoe, the
plaintiff's attorney.

James Fraser.
Curator to the
Succession of
Samuel Judah,
vs.
Joseph Mallett.
James Fraser,
Curator to tlie
Succession of
Thos. Williams
& Company, vs.
J. Bte. Rheaume.

The parties appeared, and on motion of AValter Roe, the
plaintiff's attorney, the action is Continued for fourteen
days for the plaintiff to prove his allegations.
Continued on motion of Mr. Eoe, the plaintiff's at
torney, for further testimony.

James Fraser,
Curator to the
Succession of
Sam'l Judah,
vs.
Charles Chene.

Province of
Quebec.District of Hesse.
TjS.

Walter Eoe, attorney for the plaintiff, and the defend
ant appeared and confessed the debt as set forth in the
plaintiff's declaration, after deducting two pounds, sixteen
shillings, York.
Be it remembered that on the third of September, in
the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Commoil
Pleas for the said District, James Fraser, curator to the
succession of Samuel Judah, by Walter Eoe, his attorney,
and then and there declared that the said Charles Chene
was justly indebted to him in the sum of three hundred and
twelve pounds, ten shillings, currency, by two notes of
hand, and the said Charles Chene being summoned to
appear to answer the plaint of the said James Fraser in
the said declaration set forth and then and there acknowl
edged the debt but prayed continuance of the action for
eight days, and on the tenth of 'the said month in the same
year came the said Charles Chene, before the said Court,
and there confessed judgment for the debt as set forth in
the plaintiff's declaration excepting two pounds, sixteen
shillings, York, which he had paid on account, all which
being taken into consideration by the Court, judgment is
recorded against the said Charles Chene, that he pay unto
the said James Fraser the sum of three hundred and ten
pounds, fifteen shillings, currency of the said Province,
and nine pounds, six shillings and sixpence cost's by him
sustained with interest from the tenth of said month of
September until perfect payment.

Execution issued 25th September, 1789
7th January, 1790.

Eeturnable

UPPER CANADA COtlRT RECORDS.

57

Debt  £310 15 0
Costs  9 6 6
Quebec currency  £320 1 6
Walter Roe, attorney for the plaintiff, and the defend
ant appeared. The plaintiff called as evidence John
Martin of full age, not interested and duly sworn, deposeth
that he saw the defendant, Charles St. Abeau, make his
mark as his signature to the note in question and that the
words " Charles St. Abeau," his mark around the cross in
the exhibit A filed in this cause is of the handwriting of
the deponent. (Signed on the Minutes), John Martin.
Be it remembered that on the third day of September,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, James Fraser, curator to the
succession of Samuel Judah of New York, deceased, by
Walter Roe, his attorney, and then and there declared that
the said Charles St. Abean was justly indebted in the sum
of seventeen pounds, seven shillings and fourpence, cur
rency, and the said Charles St. Abean having been sum
moned to appear to answer the plaint of the said James
Fraser in the said declaration set forth, and there denied
the debt and his signature to the said note, whereupon
eight days was allowed to the plaintiff to prove his allega
tions as in his declaration contained, and on the tenth of
September, in the same month and year came the said
James Fraser again by his said attorney, and made proof
by the oath of John Martin that the words Charles St.
Abean, his mark around the cross in tJie said note is of the
proper handwriting of the deponent, and that he- was
present when the said Charles St. Abean made his mark to
the same as his signature, the said Charles St. Abeau being
thrice called and not appearing, all which being dul}'
considered by the Court, judgment is recorded against thc
said Charles St, Abean that he pay unto the said James
Fraser the sOm of seventeen pounds, seven shillings and
fourpence, currency of said Province, and the sum of . .
 costs by him sustained, with interest from the
first of September in the said month until perfect pay
ment. Execution issued 35th September, 1789, and returnable
7th January, 1790.
Debt  £17 7 4
Costs 

James Fraser,
Curator to the
Succession of
Samuel Judah,
vs,
Charles St. Abean.

Prov. Quebec.
District of Hesse.
T.S.

58

UPPEE CANADA COURT EECORDS.

Thomas Finchiey
vs.
Pierre Cliene.

Walter Eoe, attorney for the plaintiff, and the defend
ant appeared. Mr. Eoe moved to mend his declaration,
which was granted by permission of the defendant.

Province of
Quebec.District of Hesse.
T.S.

Be it remembered that on the third day of September,
in the year one thousand seven hundred and eighty-nine,
came before His Majesty's Court of Common Pleas for the
said District, Thomas Finchiey, by Walter Roe, his at
torney, and then and there declared that the said Pierre
Chene was justly indebted by a note of hand in the sum
of fifty-eight pounds, fourteen shillings and sevenpence,
currency of said Province, and the said Pierre Chene
having been summoned to appear to answer the plaint of
the said Thomas Finchiey in the said declaration set forth,
and then, and there acknowledged the original , debt to be
just, but that he had made several payments on account —
thereupon eight days was allowed the plaintiff to make
proof of his allegations in his said declaration contained,
and on the tenth of the said month came the said Thomas
Finchiey, by his said attorney, and moved to amend his
declaration, and thereupon by admission of the said Pierre
Chene he, the said P. Chene, is condemned to pay unto the
said Thomas Finchiey the sum of forty-eight pounds,
eleven shillings and fourpence, currency of said Province,
and eight pounds, eight shillings of costs by him sustained,
with interest from the first of September on the principal
sum until actual payment.

Jean Baptiste
Tourongeau vs.
Francois Latour.

Walter Roe, attorney for the plaintiff, and the defend
ant appeared. The parties agreed to leave the accounts to
arbitrators, and the plaintiff named on his part William
Monforton and the defendant Francis Dubois, and in case
of difference to call an umpire, whereupon the Court
ordered a rule that they make their award in fourteen
days.

Richard Dobie,
of Montreal,
Merchant, vs.
John Martin,
of Detroit.

Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, the plaintiff
called James Urquhart as evidence, and sworn of full age
and not interested in this cause, and sayeth that he is
acquainted with the handwriting of the defendant, and
that the name " John Martin," subscribed to the exhibit A,
being the note in question now filed in this cause, is of his
proper handwriting. (Signed on the Minutes), Jas. Uequhart.

Prov. Quebec.
Dist. Hesse.
T.S.

Be it remembered that on the third day of September,
in the year of our Lord one thousand seven hundred and

UPPEE CANADA COUET EECORDS.

59

eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, Richard Dobie, of Montreal, in
the said Province, merchant, by Walter Eoe, his attorney,
ahd then and there declared that the said John Martin
was justly indebted to him in the sum of three hundred
and eighty-three pounds, seven shillings and threepence,
currency of said Province, due by balance of a note of
hand, and the said John Martin, having been summoned
to appear to answer the plaint of the said Eichard Dobie
in his said declaration set forth, and being thrice called
and not appearing the default of the said John Martin was
recorded and the eighth day from the said third of Sep
tember given to the said Eichard Dobie to make proof of
the allegations in his said declaration contained, where
upon on the tenth of September following, in the same
year, came the said Richard Dobie, by his said attorney,
and made proof by the oath of James Urquhart, that the
name John Martin subscribed to a certain note of hand
by the said Richard Dobie to the said Court produced, and
on which the demand of the said Richard Dobie in his
said declaration was grounded, was of the proper hand
writing of the said John Martin, and thereupon the said
John Martin, being again thrice called and not appearing,
the said Eichard prayed that his second default might be
recorded and that for the profit of such default obtained
he might have judgment for his said debt and costs, all
which being duly considered by the Court judgment is
recorded against the said John Martin, that he pay to the
said Richard Dobie, the sum of two hundred and seventy-
eight pounds, five shillings, of the currency of said Pro
vince of Quebec, with interest from the date of said note,
the twenty-first of October, one thousand seven hundred
and eighty-four, and eight pounds, fifteen shillings of costs
by him sustained.
-Execution issued 25th September, 1789. Returnable
7th -January, 1790.
Debt  £278 5 0
Costs  8 15 0
Quebec currency  £287 0 0
Walter Roe, attorney for the plaintiff, and the defend
ant appeared. The plaintiff, by his said attorney, moved
to have the action stand over until the first Court day in
November next, as a material witness in this cause is now
absent in the Indian country — and filed two receipts,
Ex. A. B.

James Fraser,
Attorney by
Procuration to
Thomas Cox,
vs.
Pierre LaBute.

60

UPPEE CANADA COURT RECORDS.

Charles McOormick vs.
-¦^lex'r McKee.

Antoine Jalbert
vs.
Jonathan Schieffelin.

Catherine Desriviere Lamoinodiers vs.
Her husband,
Antoine Dagnis
Dequindre.

Charles Smyth, attorney for the plaintiff by special
procuration, and Walter Roe, attorney for the defendant,
filed his plea.
Charles Smyth, attorney for plaintiff, by special pro
curation and the defendant appeared in person, and called
as evidence in the behalf of the defendant John McGregor,
of full age and not interested, and duly sworn and says,
" that he does not know anything respecting the matter in
question." Likewise called as evidence on the behalf of
the defendant Raphael Bellonger, of full age and not in
terested in this cause, and says : " Que lui ettoit en com
pagne avec Antoine Jalbert quand le dite Jalbert avait
laisser le service du defendeur le dix Septieme du Moi
de Mai." (Signed on the Minutes), Raphael Bellonger.
(SaMark.) T. S. Clk.
AA^alter Roe, attorney for the plaintiff, filed a renuncia
tion, the defendant being three times called and not ap
pearing. The Court made a rule that the plaintiff do
produce his evidence next C'ourt day at nine o'clock in the
morning.

Meldrum & Park
vs.
J. B. Crete.

Hugh Heward
vs.
John Askin.

Isaac Dolson
vs.
Joseph Pernier
dite Vadboncoeur.
District of Hesse.

AA''alter Roe, attorney for the plaintiff, and Charles
Smyth, acting by procuration for the defendant. The
plaintiff's attorney moved to mend his declaration, which
the Court granted — entered upon a trial and the defendant
objected against the accounts. Ordered, that the parties
prove their respective accounts in eight days.
Walter Roe, attorney for the plaintiff, and Charles
Smyth, acting by procuration for the defendant. After
trial of the cause Mr. Roe moved for a discontinuance of
the suit and the Court ordered the same to be discontinued
accordingly. Walter Roe, attorney for the plaintiff, and the defend
ant being called and not appearing.
Be it remembered that on the twentieth day of August,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, Isaac Dolson, of L'assomption,
yeoman, by Walter Roe, his attorney, and then and there
declared that on the sixth day of April, in the year of our
Lord one thousand seven hundred and eighty-six for a
valuable consideration he purchased "from John 'Askin,

UPPER CANADA COURT RECORDS. 61

of Detroit, merchant, a certain tract of land situate at the
Petite Cote on the south side of the River Detroit, con
taining three acres in front by forty in depth, bounded in
front by the said River Detroit and in the rear by unlocated
lands, on the east north-east by a farm, the property of the
plaintiff, and on the west south-west by John Wilson, to
have and. to hold the said premises with the appurtenances
thereunto belonging to him and his heirs for ever, by
virtue whereof the plaintiff, on the seventh day of April,
one thousand seven hundred and eighty-six, entered upon
the said premises and was possessed thereof ; and the plain
tiff being- so quietly and peaceably possessed thereof, the
said defendant afterwards, that is to say, on the seventh
day of December, one thousand seven hundred and eighty-
seven, violently entered into the said premises with the
appurtenances the property of the plaintiff as aforesaid,
and which he legally held from the said seventh of April,
one thousand seven hundred and eighty-six, to the said
seventh of December, one thousand seven hundred and
eighty-seven, and ejected him out of said farm, and now
forcibly retains possession thereof, together with his im
provements thereon and farming utensils and other wrongs
to the said plaintiff did to his great damage one thousand
pounds," and the said Joseph Pernier dite Vadboncoeur,
having been summoned to appear to answer the plaint of
the said Isaac Dolson, in the said declaration set forth, and
then and there acknowledged that the plaintiff was in peace
able and quiet possession of the premises in question, and
that he did enter on the said premises in the manner and
form as set forth in the plaintiff's said declaration, which
being duly considered by the C'ourt, it was ordered that the
defendant put the plaintiff immediately in full possession
of the said premises, and eight days allowed the said Isaac
Dolson to make proof of the allegations in his said declara
tion contained, whereupon on the twenty-seventh day of
August, in the said year, came the said Isaac Dolson, by his
said attorney, and the said Joseph Pernier dite Vadboncoeur
appeared, and by consent of parties it was agreed to con
tinue the action for eight days more. And on the third of
September following, came the said Isaac Dolson, by his
said attorney, and the, said Joseph Pernier dite
Vadboncoeur being thrice called and not appearing, and
the action continued for eight days further at the instance
of the said Isaac Dolson's attorney. Whereupon on the
tenth of September, in the said year one thousand seven
hundred and eighty-nine, came the said Isaac Dolson, by
his said attorney, and the defendant being again thrice
called and not appearing, all which being duly considered

62

UPPER CANADA COURT EECOEDS.

by the Court, judgment of the re-entry is recorded, and
that the said Joseph Pernier dite Vadboncoeur pay unto
the said Isaac Dolson, the sum of nine pounds, seventeen
shillings, currency of the Province,^ for costs by him sus
tained. Execution issued 2nd October, 1789, and returnable
in one month.

Costs

£9 17 0

McKillip, Jacobs
and Company,
of Detroit,
Merchants, vs.
Claud S,olaut, of
the same place.
Yeoman.

District of Hessc.
T.S.

AValter Eoe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, called on the
part of the plaintiffs, George Ironsides, as evidence, of full
age and not interested, and duly sworn saith : " That he
was present when the defendant made his mark to the
exhibit X now filed in Court and knows it to be his proper
mark, and that he wrote the body of the said exhibit at the
request of the defendant." (Signed on the Minutes), Geo. Ironsides.
Be it remembered that on the twenty-third of July, in
the year of our Lord one thousand seven hundred and
eighty-nine, came before His ]\fajesty's Court of Common
Pleas for the said District, Messrs. McKillip, Jacobs and
Company, of Detroit, merchants, by AA'alter Eoe, their
attorney, and then and there declared " That Claud Solaut,
of Detroit, Yeoman, is justly indebted to them on a balance
of account for goods, wares and merchandises sold and de
livered to him, and for luoneys paid, laid out and expended
to and for the use of the said Claud Solaut in a sum of
one hundred and seventy-nine pounds, twelve shillings and
threepence of lawful money of the Province of Quebec,
which sum although often demanded still remains due."
and the said Claud Solaut having been summoned to
appear to answer to the plaint of the said McKillip, Jacobs
and Company, and then and there appeared and denied
to owe anything to the said McKillip, Jacobs and Com
pany, and that he only acted for them in the quality of a
clerk, and twenty-eight da.ys from the said twenty-third of
July was allowed to the said McKillip, Jacobs and Com
pany to prove their allegations in their said declaration
contained, and on the twentieth of August, in the said
year, came the said McT\illip, Jacobs and Company, by
their said attorney, and filed their replication that the said
Claud Solaut was indebted in the manner and form as set
forth in the said declaration, and the said Claude Solaut
being thrice called and not appearing, the default of the

UPPEE CANADA COURT EECOEDS.

63

said Claud Solaut was recorded, and the action continued
to the twenty-seventh of August, on which day the said
Claud -Solaut was again thrice called and not appearing,
and the said plaintiffs ' attorney moved for further con
tinuance to prove the allegations in their said declaration
contained, whereupon on the third day of September the
said Claud Solaut appeared and by consent of parties the
action was continued again until the tenth of September in
the same month, the day agreed and appointed for trial,
and on which day the said Claud Solaut being thrice called
and not appearing, and the plaintiff's attorney moved to
bring forward his evidence, and George Ironside was duly
sworn of full age and not interested, and declared " that
he was present when the said Claud Solaut made his mark
to a certain exhibit X filed in Court and knows it to be his
proper mark, and that the body of the said exhibit was
wrote by the said George Ironside by the request of the
said Claud Solaut," all which being duly considered by
the Court judgment is recorded against the said Claud
Solaut, that he pay unto the said McKillip, Jacobs and
Company, the sum of one hundred and seventy-nine pounds,
twelve shillings and threepence, currency, with interest
from the twenty-first of July, last, until actual payment,
and eleven pound,s, four shillings and sixpence of costs by
them sustained.
Execution issued ^.'ith September, 1789, and returr.-
able 7th January, 1700.

Debt 
Costs 

.. £179 12 3
11 4 6

Quebec currency . . .

. . .£190 16 9

Walter Eoe, attorney for the defendant, entered ap
pearance, and Charles Smyth, acting by procuration for

John Urquhart,
of Detroit,
Gentleman,
the plaintiff, declined to act any further in his behalf, and johri'^skin,
the plaintiff, therefore, was thrice called and not appearing : Mercha^^t'"

Be it remembered that on the twentieth of August, in
the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the said District, John Urquhart, of Detroit,
gentleman.' by Charles Smyth, his attorney, by procura
tion and then and there declared that John Askin, of
Detroit, merchant, is justly and truly indebted to him in
the balance of account for receiving, storing and shipping
twelve hundred bushels of corn at Fort Erie in the sum of
thirteen pounds, nine shillings and eightpence, currency,

Province of
Quebec.District of Hesse.
T.S.

64

UPPER CANADA COURT RECORDS.

Jonathan
Schieffelin, of Detroit,
Gentleman, vs.
John Visgar, of
Saguinau, Trader.

which although often demanded still remains due, and the
said John Askin having been summoned to appear to
answer to the plaint of the said John Urquhart in the said
declaration set forth, and being thrice called and entered
appearance by Walter Roe, his attorney. On the twenty-
seventh of August, in the same year, came the defendant,
by his said attorney, and filed his plea, and the plaintiff's
attorney filed his replication. On the third of September
following, came the parties, by their respective attorneys,
and on motion of the plaintiff, by his said attorney, the
trial was fixed in eight days, whereupon on the tenth day
of September the defendant appeared, by his said attorney,
the day apointed foiv trial, and Charles Smyth, acting by
procuration for plaintiff, refused to act any further in his
behalf, on which the plaintiff was thrice called to pursue
his action and not appearing, all which being duly con
sidered by the Court judgment is recorded against the said
John Urquhart that he pay the sum of  , cur
rency, of costs and the defendant be dismissed from this
suit. Walter Roe, attorney for the plaintiff, and the defend
ant appeared and acknowledged to have received, belonging
to the plaintiff, nine barrels, one tierce and two kegs of
sugar, the exact weight he does not know, and that the de
fendant acknowledges it to be the same sugar now seized by
the sheriff. And having raised his default for reason why,
judgment should not 'he pronounced against him for the
amount of the goods charged, and says there was a specific
agreement between him and the plaintiff that such goods
as he took up for his own use was to be charged at prime
cost and expenses, but, the goods received were by him as a
partner traded for the use of the Company, in proof of
which he produces John McGregor, of full age and not
interested, who says, " that to the best of his knowledge the
defendant was to have goods for his own use at the Detroit
price, and that he does not know the parties having any
separate concerns at Saguinau, nor does he know of the de
fendant having any goods of his own but what belonged
to the Company, and that the account produced against the
defendant he says is not at the Detroit prices and charges
to Saguinau, but charged more, and that he believes there
was an agreement between the parties that the defendant
should have the goods for his private use at prime cost and
expenses to Saguinau." (Signed) John McGregor.
The said John McGregor called again to estimate the
value of said sugar, and says he thinks it worth one shillino-,

UPPER CANADA COURT RECORDS.

65

New York currency, per pound.
for the Court to consider.

The action is continued

The parties appeared, by their respective attorneys, wiiiiam Groesbeck
and on motion of Mr. Smyth, the plaintiff's attorney, by Joseph Gamelin.
procuration, the action stands over for eight days for the
testimony of William Monforton.

This cause is continued for eight days at the instance
of Mr. Roe.

OLD CAUSES
UNDER TEN
POUNDS STER
LING.
Thomas Cox
vs.
Jordan Ivory.

The parties appeared and on motion of Mr. Roe, the
plaintiff's attorney, the action is continued for fourteen
days for further testimony.

Continued for eight days for further proof of the de
livery of the articles in question stated in the plaintiff's
account and declaration. .
Court adjourned to the 17th of September, 1789. T. S.

Court of Common Pleas, Thursday, the 17th day of
September, 1789.
Present: The Honourable William Dummer Powell,
Esquire, first Judge of said Court, etc.
Walter Roe, attorney for the plaintiff, filed his contract
of marriage and the defendant appeared. On motion of
Mr. Roe (the jplaintiff's said attorney) William Monforton
was called as evidence, of full age and not interested, and
duly sworn, says: "That he saw the plaintiff, Catharine
Desriviere Lamoinodiers Dequindre sign .her name to thc
exhibit A, filed in Court the tenth day of September
instant." (Signed) Wm Monforton, Notary Public.
Called as evidence, Francois Perthuir, who is produced
by Mr. Roe, the plaintiff's attorney, being of full age and
not interested, and duly sworn.
Question 1st by Mr. Roe, the plaintiff's attorney : " Si
le temoin connoit Antoine Dagnio Dequindre le defendant
dans cette cause ? " Answer : " Oui 1 "
^ 6a

James Fraser,
Curator to the
Succession of
Samuel Judah,
of New York,
deceased, vs.
Joseph Malet, of
the Parish of St.
Anne, Yeoman.
James Fraser,
Curator to the
Succession of
Thomas Williams
& Company,
of Detroit, Mer
chant, deceased,
vs.
J. B. Rheaume,
of St. Anne,
Yeoman. Province of
Quebec.
District of Hesse.
17 Sept., 17S9.
T.S.

Catharine Des
riviere LaMoin-
odlers Dequindre
vs.
Her husband,
Antoine Dagnis
Dequindre.

66

UPPEK CANADA COURT EECOEDS.

Question 2nd by Mr. Eoe : " Si lui connoit les ettat de
ces affair ?" Answer : " Que non."
Question 3rd by Mr. Eoe : " Avez vous entendu si avoit
une seizer a chez lui ?" Answer : " Que lui avoit entendre
dire." Question 4th by Mr. Roe : " Avez vous entendre dire
que ce meubles ettes vendu, et par qu'il ?" Answer : " Que
lui avoit entendu dire que I'ont ette vendu a I'encan."
Question 5th by Mr. Eoe : " Si Font ette vendu par le
Sheriffe?" Answer: "Je ne sai pas." (Signed) Perthuir.
On motion of Walter Eoe, the plaintiff's attorney,
William Monforton was called again and questioned:
Question 1st by Mr. Eoe : " Si il connoit le defendant
dans cette cause ?" Answer : " Que oui !"
Question 2nd by Mr. Eoe : " Si lui a connaisanee que
il y ait une seizer au chez le defendant?" Answer: "Que
il entendu dire."
Question 3rd by Mr. Eoe : " Si lui a connaisanee qui
ces effets ette vendu par le Sheriffe?" Answer: "Que
lui avoit entendu dire que les effets ette vendu dans la
Cour de Sheriffe."
Question 4th by Mr. Roe : " Si il connoit les ettat des
affair du defendant?" Answer: "Que il connoit pas
possitivement les ettat des son affair, mai qu'il doit
beaucoup et pas grand bien pour satisfaire."
(Signed) Wm. Monforton, Notary Public.
This action stands over to another Court, on motion of
Mr. Roe.

Robert Gowie
va.
Thomas McCrea.

Elizabeth Malcolm
vs.
H«r husband,
James Donaldson.
George Meldrum
and William Park,
of Detroit,
Merchants and Co
partners in trade,
vs.
Joseph iBarron,
of St. Anne.
Jean B. Petre, of
St. Anne, Yeoman,
vs.
Capt. Alexander
Harrow, of the
Naval Dept.

Walter Roe, attorney for the plaintiff, filed declaration,
and Charles Smyth, attorney by procuration for defend
ant, entered appearance.
The plaintiff filed declaration and Walter Roe, attorney
for the defendant, entered appearance.
Walter Roe, attorney for the plaintiff, filed his declara
tion and the defendant appeared in person and moved for
fifteen days delay on account of his family being in a bad
state of health, which the Court granted.
Walter Roe, attorney for the plaintiff, and the defend
ant being thrice called and not appearing, Mr. Roe moved
to bring the action to trial next Court, and the same was
granted.

UPPER CANADA COURT RECORDS.

67

AValter Roe, attorney for the plaintiff, filed a certifi
cate, which was acknowledged by Mr. Smyth, acting by
procuration for the defendant, as per exhibit Y now filed in
Court. The Court will be ready to pronounce judgment
the next Court day.

Jonathan SohlefEelin,
of Detroit,
Gentleman, vs.
John Visgar, of
Sagulmau, Trader.

Walter Roe, attorney for the plaintiffs, and Charles
Smyth, acting by procuration for the defendant, appeared,
and by consent of parties it is ordered that Charles Morran
and John Askin, Esquire, do report the value of the wood
and timber delivered by the defendant to the plaintiff by
virtue of an agreement dated the tenth day of October, in
the year one thousand seven hundred and eighty-nine.
agreeable to the accounts of delivery (exhibits H., I.) and
that their report on the delivery of the value of such wood
be made in eight days.
That John Askin and WiUiam Robertson, Esquires, do
credit the detailed accounts of articles furnished by the
plaintiffs to the defendant for which he is charged by them
in the several exhibits C, D, E, F, H, I, and do report
the overcharges above the current prices of that day, if any
there be on any of the articles so detailed.

George Meldrum
and William Park,
of Detroit,
Merchants, vs.
J. B. Crete.

On suggestion of Walter Roe, for the plaintiff, the de
fendant has neglected to file his accounts agreeable to the
rule of the tenth inst. It is ordered that unless the de
fendant do comply therewith in three days after notifica
tion of this rule, that the arbitrators do proceed ex parte.
(Signed on the Minutes), W. D. P.

J. B. Tourongeau
vs.
Francois Latour.

Charles Smyth, acting by procuration for the plaintiff,
filed declaration and the defendant being thrice called and
not appearing. The plaintiff's attorney filed a note of
hand and called as evidence in his behalf James McDonell,
of full age and not interested, and duly sworn, says : " That
he saw the defendant sign his name to the exhibit A, being
a letter of attorney now filed in Court."
(Signed on the Minutes), James McDonell.
The Court continued the action for eight days, and if
the defendant does not appear then to take off the default,
judgment will be pronounced against him.
Charles Smyth, acting by procuration for the plaintiff,
and Walter Roe, attorney for the defendant, moved that:
inasmuch as no cause is shown on the part of the plaintiff
why he should not proceed to the proof of his demand

William Robertson
vs.
Thomas MoCrea.

William Groesbeck,
of St. Anne,
Merchant, vs.
Joseph Gamelin,
of L'assomption,
Trader.

T.S.

68 UPPER CANADA COURT RECORDS.
agreeable to the rule of the tenth instant, prays the action
be dismissed with costs. The adverse party moved for
further continuance eight days in order to bring his proof.
pMvince of Be it remembered that on the twenty-third of July, iu
DU^trict of Hesse. the year of our Lord one thousand seven hundred and
eighty-nine, came before his Majesty's Court of Common
Pleas for the said District, William Groesbeck, of Detroit,
merchant, by Charles Smyth, his attorney by procuration,
and then and there declared " that the defendant was justly
and truly indebted to him by balance of account for goods,
wares and merchandise sold and delivered in the sum of
two hundred and thirty-one pounds, three shillings' and
sevenpence, money of the late Province of New York, which,
although often demanded, still refused to pay and satisfy."
And the said Joseph Gamelin of the Parish of L'assomp
tion, trader, being summoned to appear to answer the
plaint of the said William Groesbeck in the said declaration
set forth and entered appearance by Walter Eoe, iiis at
torney. The action is continued to the twentieth of
August in the same year, on which day the defendant ap
peared, by his said attorney, and the plaintiff, by his said
attorney, moved to cofitinue the action for eight days for
further testimony, which was granted by the Court. And
on the twenty-seventh of August in the same month and
year, came the parties before the said Court, by their said
attorneys, and mutually consented to continue the action
again for eight days. On the third of September in the
same year, came again the said parties, by their said at
torneys, and on motion of Charles Smyth, the plaintiff's
attorney, the Court granted a further delay of eight days.
On the tenth of September in the same year came again
the parties, by their respective attorneys, and Charles
Smyth, the plaintiff's attorney, again moved for .1
further continuance for eight days for the testimony of
William Monforton, who is a material witness in
this cause, and whereupon the seventeenth day of Sep
tember in the same month, came the said parties, by their
respective attorneys, and Charles Smyth, attorney for the
plaintiff, again moved for further continuance, whereupon
the defendant's attorney, Walter Eoe, moved to the Court
that : " Inasmuch as no sufficient cause is shown on the
part of the plaintiff why he should not proceed to the proof
of his demand agreeable to the rule of the tenth instant,
prayed the action be dismissed with costs." All which
being duly considered by the Court judgment of nonsuit
is recorded against the said William Groesbeck, that he pay
the sum of  currency of costs accrued in the
premises.

UPiPER CANADA COURT EECORDS.

69

Charles Smyth, acting by procuration for the plaintiff,
and Walter Roe, attorney for the defendant. The plain
tiff's attorney moved to mend his declaration which the
defendant's attorney objected, otherwise the non-payment
of costs, whereupon it was ordered, on motion of Mr.
Smyth for plaintiff, that the cause be tried in eight days.

Chai'les McOormilck
va.
Alex. McKee.

After hearing the difference of the parties the Court
ordered judgment to be recorded against the said Jacob
Bougart, that he pay unto the said Geo. Deacons the sum
of thirty-seven shillings and fourpence, New York cur
rency, and fourteen shillings and eightpence, currency of
Quebec, of costs by him sustained.

CAUISBS UNDER
TEN POUNDS
STERLING.Geo. Deacons
vs,
Jacob Bougart

Walter Roe, for the plaintiff, and the defendant ap
peared, and on motion of the plaintiff the action is con
tinued for fifteen days.

Thomas Coi
ve.
Jordan Ivory.

The parties appeared and for want of a sufiicient proof
on the part of the plaintiff the action is dismissed with
costs.

Amtolne Boullard
vs.
Richard Pollard.

After hearing the allegations of the parties the Court
ordered judgment be recorded against the said Joseph
Penout, that he pay unto the said Andre Decaroux the
sum of ten pounds, twelve shillings, and the sum of 
 costs by him sustained, being both of the currency
of New York.

AndrS Decaroux
vs.
Joseph Penout.

Debt 
Costs 
N. Y. currency.

£10 12 0

AV. Eoe, attorney for the plaintiff, the defendant ap
peared and after hearing the allegations of the parties
judgment is recorded against the said Joseph Barron, that
he pay the said Thomas Finchiey the sum of eight pounds,
fourteen shillings and fourpence halfpenny, currency, and
ten shillings and eightpence costs by him sustained.

Thomas Finchiey
vs.
Joseph iBarron.

Debt  £8 14 41/2 Hfx.
Costs  0 10 8
£9 5 01/2
Execution  0 1 0
Bailiff  0 4 0

Execution issued 3rd October, 1789, and returnable in
one month.

70

UPPEE CANADA COURT RECORDS.

James Fraser,
Curator to the
Succession of
Samuel Judah,
vs.
Jos. Barron.

Walter Roe, attorney for the plaintiff, and the defend
ant appeared in person. After hearing the allegations and
duly weighing the difference, judgment is recorded against
the said Joseph Barron, that he pay unto the said Japies
Fraser the sum of four pounds, eighteen shillings and six
pence, currency, and ten shillings and eightpence of costs
by him sustained.

Debt  £4 18 6 Hfx.
Costs  0 10 8
£5 9 2
Execution  0 1 0
Bailiff  0 4 0
Execution issued 3rd October, 1789, and returnable in
one month.

Jean Marie La
Bathe vs,
Joseph Castillion.

The parties appeared and on confession of the debt by
the defendant judgment is recorded against the said Joseph
Castillion, that he pay unto the s^d Jean Marie LaBathe
the sum of three pounds, ten shillings and twopence, cur
rency, and eleven shillings and eightpence of costs by him
sustained.

Debt .
Cost .
Writ .
Bailiff

£3

10

2

0

11

8

£4

1

10

0

1

0

0

4

0

Execution issued and returnable in one month.

Joihn Askin,
Esquire, vs.
Antodne Dequindre,
of St. Anne.

Charles Smyth, acting by procuration for the plaintiff,
and Walter Roe, attorney for the defendant, moved for con
tinuance of the action, which was granted.

Hyacinth Latourell
vs.
William Groesbeck.

The plaintiff is dismissed from his action and to pay
costs of suit.

Antoine Jalbert,
•of Detroit,
labourer, vs.
Jonatham Schieffelin, of the
same place, Trader.

Charles Smyth, attorney for the plaintiff, and the de
fendant appeared in person.

Province of
Quebec. District of Hesse.
T.S.

Be it remembered that on the third day of September,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common

UPPER CANADA COURT RECORDS. 71
Pleas for the said District, Antoine Jalbert, of Detroit,
labourer, by Charles Smyth, his attorney by procuration,
and then and there declared : " That Jonathan Schieffelin,
of Detroit, trader, some time in the autumn of last
year when it is customary amongst traders to engage
labourers for the purpose of going into the Indian country
to assist them in their trade with the Indians, did, by a
verbal agreement, engage the said Antoine Jalbert to go
with him to Saguinau, an Indian Post, for the purpose
aforesaid, and did promise and undertake to pay him, the
said Antoine Jalbert, the sum of twenty pounds, sixteen
shillings and eightpence, Halifax currency, and also to
furnish him with wholesome meat, drink and lodgings,
provided he, the said Antoine Jalbert, should well and truly
serve him, the said Jonathan Schieffelin, from the day of
the said agreement until the fifteenth day of May, one
thousand seven hundred and eighty-nine, when he was to
rec^ve his wages as aforesaid and be discharged and set at
liberty from all further service to him, the said Jonathan
Schieffelin, in consequence of the said agreement. That
the said Antoine Jalbert did, in every respect, perform his
duty as a good and faithful servant during the said period,
and at the expiration thereof did expect to receive his wages
as aforesaid; but the defendant, without any reasonable
cause whatsoever, absolutely refused to pay him the same,
and still doth refuse to pay him the said sum of twenty
pounds, sixteen shillings and eightpence, Halifax currency,
so long and justly due." And the said Jonathan Schieffe
lin, having been summoned to appear to answer the plaint
of the said Antoine Jalbert in the said declaration set forth,
and then and there appeared and verbally denied to owe
anything to the said Antoine Jalbert, but on the contrary
averred that the said Antoine Jalbert owed him two
hundred and thirty-one livres, for which he prayed to be
come an incidental plaintiff, and filed the said Antoine
Jalbert's engagement subscribed by him at Detroit, and
offered to bring proof that the said Antoine Jalbert did
not perform his engagement, and produces his account,
items of which he begged leave to prove. The action con
tinued to the tenth of the same month, being eight days'
delay, on which day the parties again appeared, and the said
Jonathan Schieffelin produced as evidence on his part John
McGregor, of full age and not interested, and duly sworn,
"declared to know nothing of the matter in question."
Likewise the said Jonathan Schieffelin called as evidence
on his behalf Raphael Bellonger, of full age and not in
terested, who declares, " that he was in company with the
said Antoine Jalbert when he left the service of the said

72

UPPER CANADA COURT RECORDS.

Jonathan Schieffelin, which was the seventeenth of "last
May." The action was continued for eight days further,
whereupon the seventeenth of the same month of Septem
ber, in the same year, came again the said Antoine Jalbert,
by Charles Smyth, his said attorney, and also the said
Jonathan Schieffelin, the defendant in this cause, and
after the allegations of the parties being duly considered
by the Court the action is dismissed and the said Antoine
Jalbert, plaintiff in this cause, to pay the sum of  ,
currency, of costs accrued in the premises.
Court adjourned to the 24th of September, 1789. T. S.

Province of
Quebec.District of Hesse.
24 September, 1789.
T.S.

Court of Common Pleas, held at L'assomption, Dis
trict of Hesse, in the Province of Quebec, this 24th day
of September, 1789.
Present: The Honourable William Dummer Powell,
Esq., First Judge of said Court, etc.

Angus Mcintosh,
of Detroit,
Merchant, vs.
Jean Bt«.
Rheaume, of the
sarae place.

Francois Barbeau
vs.
Pierre Durand.

Walter Roe, attorney for the plaintiff, filed his declara
tion and the defendant being thrice called and not ap
pearing, it is ordered that a default be recorded against
him. Charles Smyth, acting by procuration for the plaintiff,
filed declaration and exhibits A. B., and the defendant
after being thrice called entered appearance.

CatherineDesriviere Lamoinodiers
Dequindre va.
Her husband,
Antodne Daginls
Dequindre. William Robert
son, of Detroit,
Merchant, va.
Thomas McCrea.

Robert Gowie
vs.
Thomas McCrea.

The defendant being thrice called and not appearing,
Walter Roe, the plaintiff's attorney, moved to let the
action stand over for eight days, his witnesses not being
ready. Charles Smyth, acting by procuration for the plaintiff,
and the defendant being thrice called and not appearing,
it is ordered that the second default be recorded against
him and the eighth day from this date be for trial.
Charles Smyth, acting by procuration for the defend
ant, filed his plea, denying the debt as set forth in the
plaintiff's declaration and Walter Roe, attorney for the
plaintiff, replied verbally that the defendant is indebted
to the plaintiff in the sum of two hundred and thirty-nine
pounds, eleven shillings currency, in manner and form
as set forth in his declaration which he prays may be
enquired of by the Court, and the said plaintiff's attorney
moved for trial next Court day being the first of October
next, which the Court ordered accordingly.

UPPER CANADA COURT RECORDS.

73

The plaintiff says that the defendant detains fifty
pounds sterling in his hands sent to her by her friends
in Scotland. Mr. Roe, attorney for the defendant* filed
a plea and denies to detain any sum of the plaintiff's
whatever. The Court ordered a rule for trial in eight
days and the plaintiff then to bring forward his proof.
Walter Roe, attorney for the plaintiff, filed a note of
hand and moved for trial next Court day the first of
next October which was granted, and Charles Smyth,
attorney by procuration to the defendant, filed a letter
of attorney from the defendant to him.
Walter Roe, attorney for the plaintiffs, filed a report
of auditors respecting the plaintiff's accounts, and the
defendant appeared by Charles Smyth, his attorney, and
moved for continuance eight days in order to prove a
demand respecting two notes of hand and a batteau lost
by the plaintiffs, the property of the defendant.
Walter Roe, attorney for the plaintiff, and the defend
ant appeared in person and declared to have no objections
to the report of auditors now filed in Court by the plain
tiff's attorney to which the defendant had before agreed to.
Be it remembered that on the third day of September,
in the year of our Lord one thousand seven hundred and
eighty-nine, came before His Majesty's Court of Common
Pleas for the District of Hesse, Jean Bte. Tourongeau,
of Detroit, yeoman, by Walter Roe, his attorney, and
then and there declared : " that the defendant was justly
and truly indebted to him in the sum of one hundred
and sixty-two pounds, ten shillings and fivepence cur
rency of the Province of Quebec for divers goods, wares
and merchandise sold and delivered to him, and for monies
paid, laid out and expended to and for the use of the
defendant and likewise for monies had and received by the
defendant, the property of the plaintiff agreeable to
account annexed to the declaration, which the defendant
refuses to pay," and the said Francois Latour, the defend
ant, having been summoned to appear to answer the
plaint of the said Jean Bte. Tourongeau in the said
declaration set forth and then and there denied to owe
anything to the plaintiff, that he had settled all accounts
with him, in proof of which he filed an acquittance. On
the tenth of said month of September, the parties again
appeared and mutually agreed to leave the accounts to
be decided by two arbitrators, and the said Jean Bte.
Tourongeau named on his part William Monforton and
7a.

Isabella Malcolm
vs.
Her husband,
James Donaldson.

Jean Bte. Peter,
of St. Anne,
Yeoman, vs.
Alexander Harrow.

George Meldrum
and Wlm. Park,
of Detroit,
Merchants, vs.
J. Bte. Crete.

Jean Baptiste
Tourongeau,
of Detroit,
Yeomajn, vs.
Francois Latour,
of the same place.
Yeoman.District of Hesse.
T.S.

74

UPPER CANADA COURT RECORDS.

the said Francois Latour named on his part Francois
Dubois, and in case of their differing in opinion to call
an umpire and thereupon the Court granted a rule that
the said arbitrators do make their award in fourteen days.
On the seventeenth of the said month of September,
Walter Roe, attorney for plaintiff, moved to the Court that
the said Francois Latour had not filed his accounts agree
able to the rule of the tenth instant The Court ordered
that unless the said Francois Latour do comply therewith
in three days after the notification of this rule, that the
arbitrators do proceed ex parte. And on the twenty-fourtli
of the said month of September came again the said
Walter Roe, attorney for the plaintiff, and filed the award
of the arbitrators and the defendant, Francois Latour,
appeared in person and then and there declared to have
no objections to the award now filed in Court, whereupon
the Court after duly considering the same, ordered judg
ment to be recorded against the said Francois Latour, the
defendant in this cause, that he pay unto the said Jean
Bte. Tourongeau, the plaintiff, the sum of forty-seven
pounds, three shillings and elevenpence halfpenny, cur
rency, with interest thereon computed from the thirtieth
day of August last until actual payment and the sum of
thirteen pounds, six shillings and sixpence of costs by
him sustained. Debt  £47 3 lli/g
Costs  13 6 6
£60 10 SYz
Execution  0 5 0
T. 'S.

Charles McCormick
vs.
Alexander MeKee.

Charles Smyth, acting by procuration, attorney for
the plaintiff, moved to have his name discontinued in
this suit, and upon which the plaintiff appeared for him
self and AValter Roe, attorney for the defendant, moved
for continuance until the arrival of Isadore Chene, Simon
Girty and Capt. Caldwell, material evidences now absent
and necessary for the issue, whereupon the Court granted
a rule accordingly.

Isaac Williams
vs.
Jacques Charron.

Walter Roe, attorney for the plaintiff, and the defend
ant appeared in person, and by consent of parties the
peremptory rule ia this cause is extended until next
Thursday.

John Askin
vs.
Antoine Dequindre.

Walter Roe, attorney for the defendant, filed his plea,
and Charles Smyth, acting by procuration for the plaintiff

UPPER CANADA COURT RECORDS.

75

replied verbally that the defendant is indebted in manner
and form as set forth in his declaration and prayed judg
ment, then moved for trial in eight days and the Court
granted a rule accordingly.

NOTE.
The first 36 pages of the manuscript of the following
record are missing. It is probable they contained the
Minutes of the Court from the 24th September, 1789, to
the 19th May, 1791.
Roe, attorney for plaintiff, filed declaration. Defend
ant personally appeared and for plea says that he expected
the plaintiff would wait for payment as he had not
wherewithal to satisfy him, especially as his land was
mortgaged for the money.
Defendant acknowledged the obligation.
Judgment for the same agreeable to the terms of
plaintiff's declaration, one hundred and fifty-five pounds,
sixteen shillings and eightpence Halifax, with interest
from 12th May, 1791. T. S.
Execution issued 9th June, returnable 2nd Court in
December next.

19 May, 1791.
Geo. McDougall
vs.
Jacques Campeau.

Debt  £155 16 8
Cost  9 6 6
Halifax  £165 3 2

T. S.

Eoe for plaintiff, filed declaration. Default. T.S.
Roe for plaintiff, ordered the opposition, for trial in
four weeks and that notice be given to the opponent, and
that a subpoena be given Mr. Roe for Mt- Benac to
appear in (Jourt at that time and bring the original deed
with him.
Court adjourned to 26th inst. T. S.
Court of Common Pleas, holden at L'assomption
the 26th of May, 1791.
Present: William Dummer Powell, Esquire, First
Judge of said Court.
Parties appeared. Plaintiff non-suited for want of
proof. T. S.

Geo. (McDougall
vs.
Geo. Lyons.
John Askin
vs.
Bttierane Latour
dit Bellard, on the
opposition of
Daniel McKillip.

Province of
Quebec.
District of Hesse.
260VI!ay, 1791.

James Turner
vs.
Wm. Tucker.

76

UPPEE CANADA COURT RECORDS.

CAUSES ABOVE
TEN POUNDS.
Jajmes May
vs.
James Fleet.
Jos. Thlbeault
vs.
J. B'e. Roucout.

George Lyons
vs.
Francois Chabert,
Ssqulre.

Roe for plaintiff moved for trial next Court ia\.
Ordered accordingly; defendant not appearing. T.S.
Mr. Roe, for plaintiff, filed declaration and mortgage.
Ex. A. The defendant appeared and acknowledges that
he is indebted the sum demanded but for plea says that
the mortgage contained in the deed dated 19th June,
1790, ought not to have any effect. The plaintiff replies
that by the first. deed of 30th Oct., 1783, the premises
as stated in his declaration are already mortgaged and
that such after deed was only a ratification of the former,
and prays judgment. Continued en delibere. T. S.
Roe appeared for plaintiff. James May sworn. That
the plaintiff having this day filed the affidavit of James
May purporting that the best and only witnesses to prove
his demand are without the jurisdiction of this Court,
and being willing to refer the said demand to the decisive
oath of the defendant prays thart a rule may be personally
served on the said Francois Chabut, Esq., requiring him
to attend this Court in his proper person on Thursday,
the 9th of June next, then he to purge himself by- his
corporal oath from his said demand, failing whereof it
shall be admitted and taken pro confesso. The Court
ordered accordingly. T. S.

Graham and
JMacKenzle vs.
IjOuIs Oaimpeau.

Roe for plaintiffs called James May and duly sworn,
declared that the contents of the affidavit, Ex. A. now filed
to be the truth and nothing but the truth Called by
plaintiff as evidence J. B'te. Morin of full age and being
duly sworn, and declares as follows : Qu'il est eomniis
actuelment employer par le demandeur et que de leur
part il fut Dimanche dernier chez defendeur pour lui
demander sa raison pour avoir pas acquitte la demande
actuel. Pour reponse le defendeur a dit au temoin que
ce est bien vrai que lue devoit le vingt trois ponds pour
une quart de romme qu'il a eut I'ete passe, mais peut pas
faire cette somme, bien qu'il avoit demander en plusier
maison. J. MORIN.

Execution issued June. Returnable first Court in
January next, 1792. ''

Debt  £14 17 6
Costs  6 8 2
Prov. Cy  £21 5 8

T. S.

UPPER CANADA COURT RECORDS.

77

Mr. Roe, of counsel for plaintiffs, returned writ of
fi. fa. issued in this cause, with full satisfaction indorsed,
3rd Nov., 1791. C. Smyth, Clerh.
Judgment upon motion of plaintiff for the sum of
twenty-three pounds sixteen shillings N.Y. currency with
costs. T. S.

Mr. Roe, for plaintiff, upon the non-appearance of
opponent admits that the land in execution is the same
which in the inventory filed by the opponent, exhibit B,
is valued as part of the community of the opponents and
Guillaume La Forest, father of the minors in whose
behalf the opposition is filed, and thereupon prays judg
ment on the opposition. Court order that the Sheriff
proceed to the sale of the premises subject to the demand
of the -minor children of Guillaume La Forest and Jan-
vieve Fovelle Bigras to the amount of two thousand, six
hundred thirty-five. . . . Upon suggestion by Mr. Roe
for plaintiff, that an indefinite number of minor claimants
stated in the Sheriff's notification of sale would materially
affect the value of the land, and praying that a further
day may be given to the plaintiff to ascertain the ages
of the children of the said Janvieve Bigras and Guillaume
La Forest.
The Court suspend the above judgment until further
prayer of the plaintiff. T. S. -^

Meldrum and
Park vs.
Paul Campeau and
wife on the
opposition of
Mad. Campeau.

Roe for plaintiff. Default. Mr. Roe for trial next George McDougai!
Court day, and that subpoenas may issue. Ordered ac- George Lyons.
cordingly. T. S.

The plaintiff appeared by his son, Jos. St. Bernard,
whose procuration being informal the Court admitted the
return and filing of process and gave to -the plaintiff
until the 9th of June to file his substitution. Defendant
entered appearance in person. T. S.

Guillaume St.
Bernard vs.
Jean Roucout.

Mr. Eoe for plaintiff. Default. Mr. Eoe filed the
return of the Eule of 14th April last.
Court adjourned to 9th June, 1791.

Geo. Lyons
vs.
Portler Benac.

T. Smith, Clerk.

Court op Common Pleas, holden at L'assomption, province of
9th June, 1791. District of Hesse.
Present: William Dummer Powell, Esq., First Judge 9 J™e, i79i.
of said Court.

78

UPPEE CANADA COURT RECORDS.

CAUSES UNDER
TEN POUNDS
STERLING.Samuel Edge
vs.
John Vert.
P'lerre Branconnier
vs.
dit Bourdon La
Breche.

Pat. McNiff, Esq.,
vs.
CJharles Gabriel
and Toussaint
Oheme. Nathan Williams
vs.
Pierre Labute.

Judgment, defendant to pay four dollars and a half
and costs. T. S.

The defendant appears and for plea says that he was
farmer upon the farm claimed, and that by convention
with his brother he was to be paid for certain labours
done upon the farm agreeable to the account filed and
submits he should not be put out of possession until the
said account is liquidated. The plaintiff to take com
munication of the account and for trial in 8 days. T. S.
For debt. Continued 8 days for proof. T. S.

Mr. Roe for plaintiff. Defendant appeared. Defend
ant for plea says that it is true, he is indebted a balance
on a note of hand a sum of £42 9s. 8d. N. Y. currency
for payment of which he suggests the plaintiff gave him
term of payment until judgment should be had him
depending with Navarre. Mr. Roe replies that such term
was given but it's expired. That the judgment men
tioned is rendered and in conformity thereto Navarre
has tendered to the defendant the debt and costs awarded
against him; but that the defendant not being satisfied
with the amount of judgment refuses to accept of
the said offer or to pay the present demand.
That the defendant admits that the said tender was
made to him, and so soon as he receives his money that
he will pay the said demand. Judgment for said debt,
forty-two pounds, nine shillings and eightpence, equal to
twenty-six pounds, eleven shillings sevenpence currency
of the Province and costs.

James May
vs.
James Fleet.

Eoe for plaintiff. Upon suggestion by plaintiff that
the witnesses cannot be had as of this day and that the
defendant means to take up his default and go to tryal
on Thursday next, a delay is given: Ruled that the
tryal in this cause do come on peremptorily on Thurs
day next.

Geo. Lyons
vs.
Francois Chabert
Ksq.

Mr. Roe for plaintiff filed rule. Defendant not ap
pearing. Judgment: Having seen the declaration, return and
entry of default on the non-appearance of the defendant
in this cause as well as the account filed by plaintiff
together with the affidavit of James May and the return
of service of the rule made on the defendant at the
instance of the plaintiff requiring his personal attendance

UPPEE CANADA COURT RECORDS.

79

to purge himself by oath of the demand made by plain
tiff and the record of his default this day, it is considered
that the plaintiff's declaration be taken as confessed by
the defendant, and thereupon judgment is entered against
him that he pay to the said Geo. Lyons the sum of twenty-
six pounds, ten shillings fourpence currency of N. York
equal to sixteen pounds, eleven shillings and fivepence
currency of Quebec with costs. T. S.
Execution issued 29th June, 1791, returnable first
Court in January, 1792.
Debt  £16 11 5
Costs  6. 11 2
£23 2 7
Execution  050
T. S.
Mr. Roe for plaintiff, returned writ of fi. fa. issued
in this cause with full satisfaction indorsed.
Mr. Roe for plaintiff. Defendant appeared. Judg- Geo. McDougaii
ment on confession of the debt by defendant agreeable Geo.^yons.
to the terms of the declaration for the sum of seventy-five
pounds currency of Quebec, with costs. T. S.
Execution issued 23rd August, 1791. Eeturnable
first Court in March, 1791.
Debt  £75 0 0
Costs"  9 13 6
Execution  0 5 0
C. S.

Mr. Eoe for plaintiff; defendant not appearing. Cause Geo.^Lyons
continued for 8 days (as the declaration and account have Portier Benac, Esq.
been left in the Clerk's office) on motion of Mr. Eoe. T. S.

Mr. Roe for plaintiff filed declaration. Defendant
appeared and for plea says that he is not indebted; but
the plaintiff replied that he is indebted to him. Filed
account, the plaintiff to take communication of the same.
T. S.

Gabriel Godfroy
vs.
J. B. Couteur.

Judgment. Parties present. It is considered that the
defendant pay to the plaintiff the sum of fifteen hundred
livres with interest from the 30th of October, 1783; but
that in case of concurrence with any other judgment or
mortgage creditor upon the premises intended to be
charged with the said debt and interest by the written

Jos. Thlbeault
vs.
J. B. Roucout.

80

UPPER CANADA COURT RECORDS.

Guillaume iSt.
Bernard ¦ve.
J. Roncout.

exhibit bearing date 19th June, 1790, such interest is
to be charged on said premises from the date of the fiat,
the 19th of May last. T. S.
Joseph St. Bernard, attorney by procuration for plain
tiff, appeared. The defendant appeared in person. It is
considered that the defendant pay to the plaintiff the
sum of twelve hundred and sixty-five livres fifteen sols,
equal to fifty-two pounds fifteen shillings currency of
the Province.
Court adjourned to 16th inst. T. S.
Execution issued 23rd June, 1791. Returnable first
Court in February, 1792.

Debt Costs

£52 15 0
0 0 0

T. S.

Province of
Quebec.
District of Hesse.
16th June, 1791.

William Forsyth
vs.
F. D. Belcourt.
Geo. Lyons
vs.
J. B. Russell.
Jacob Dicks
vs.
Jno. Cray and
Wife. Pierre Branconnier
vs.
Bourdon de La
Breche.
Pat. McNiff, Esq.,
vs.
Charles Gabriel
and Toussaint
Chene.

Court of Common Pleas, holden at L'assomption in
the said District, 16th June, 1791.
Present: William Dummer Powell, Esquire, first
Judge of said Court.
Default.Eoe appeared for plaintiff. Default.
For damages. Parties appeared. Defendant pleads
not guilty and the issue for tryal next Court day.
Parties appeared. Defendant filed plea. Continued
8 days to give communication thereof to the plaintiff.
Parties appeared. Plaintiff called A. McCormick and
sworn as witness being questioned on the part of the
plaintiff what knowledge he has of the voie de fait or
trespass declared to have been committed by the defend
ants in the terms of the plaintiff's declaration, says that
about the 14th or 15th of February last he saw Charles
Chene, one of the defendants nanied in the cause, cut
down a picket of the garden fence upon the premises
occupied by the plaintiff. That the witness thereupon
informed; Mr. McNiff came out and enquired of the said
defendant what he meant by cutting down his fence, the
said defendant replyed that he wanted a piece of good
oak for a sled bottom and that he would replace the
picket upon which Mr. McNiff said that would never
do, but suffered him to take the picket away : That about
the 25th of March last two of the defendants, Gabriel
and Toussaint Chene entered the premises with intent

UPPER CANADA COURT RECORDS. 81
to carry off some boards which formed the fence around
the barn, 'that Mr. McNiff forbid them to carry thena
off without leave from him, or he should be under the
necessity of chastiseing him, to which Toussaint Chene
replyed that the boards were his, not his fathers, and
that he would carry them off without the leave of any
body, but did not at that time carry them away, and
that the boards are not now there. That about the 1st '
of June last he saw Charles Chene, one of the defendants,
go along the wheat field sweeping the tops of the grain
with a long pole, which he said was to destroy the cater
pillars. That on the 5th June last he saw Gabriel Chene,
one of the defendants, cut and carry off a basket of grass
from the head land of the wheat field, which he said was
for a young calf, and upon Mr. McNiff enquiring why
he did it he replyed that he would cut it if he pleased.
Q. by Court. Did you see the three defendants to
gether committing any trespass upon the premises against
the consent and will of the plaintiff? Ans. He did not.
Arthur McCormick.
Called by plaintiff, Michael Shannon as witness and
duly sworn. Says, that he is a hired servant to the
plaintiff, who about the last of March last going to the
River La Tranch directed the witness not to suffer any
thing to be carried off the premises until his return.
That about 8 or 9 days after being at work in the field,
Mr. McNiff sent for him to prevent the defendant Gabriel
Chene from carrying off some boards which they had
heaped together and were then carrying them away. .That
he prevented them from taking anything away until they
first obtained leave of his master. That some of the
boards had nails in them; but to what part of the build
ings they belong he does not know..
That some time in June, inst., the witneF-s saw Gabriel
Chene, one of the defendants, beating the wheat on the
premises with a pole and saying at the same time that
it was his own wheat.
Q. by plaintiff. If the witness ever saw the three
defendants together to plant corn on the premises. Ans.
No, but that he saw Charles Chene and wife plant corn
in the upper field. His
Michal X Shannon.
marque.
T. Smith, Clerk.

82

UPPER CANADA COURT RECOEI

Pat. McNiff, Esq.,
vs.
Charles Gabriel
and Toussaint
Chene.

Papers made up
& the Court
Exhibits A. B. C.
lilecl and sum
and return.

Defendants called as evidence Pierre Barron, and duly
sworn. Q. by defendant. Ette vous present quand le de
mandeur a prie possession de notre maison et nous a
jetter d'hors, ette vous appeUe pour temoiner ce que
passerai pour lors, et inform^ la cour. Response, oui, je
ettait present quand le demandeur a jetter le defendeur
d'hors. Que le temoine il fut avec sa voiture pour charrier
les butins de defendeur, que Mr. McAiff leur a dit il y a
pas bissaint de sortir des buttins qu'il rest ici sans aucune
payment, et qu'il a offere le cler du grinnier par trois
fois a Mr. Chene et en outre quand a le gard des annimaux
qu'il pouvez les laisser la.
Q. by plaintiff. At what time did this happen?
Repons. II peut pas dire exactment les tems mais il
y a encore du nige.
Q. by plaintiff. S'il entend I'englais. Repond Que
Non. Comment il s'entend cette histoire, Repond. Que .
le demandeur a parler a qu'il dissait a legard de buttins
en francais, que a legard des annimaux il est explique
en Englais avec Gabreil Chene qu'il a interpretter a
son Pere. Pierre Barron X His mark.
T. Smith, Clerk.
Defendant called as evidence Geo. Lyons and duly
sworn, declares, that upon some proposition from Mr.
McNiff he, the witness, accompanied Toussaint Chene,
one of the defendants and was present when Mr. McNiff
gave permission to the defendants to plough and sow
such part of the land as he pleased excepting a small piece
which he reserved for turnips and potatoes.
Q. by Court. At what time was this? Ans. That
it was about two months ago.
Q. by plaintiff. If he recollects the conditions on
which the plaintiff permitted them to sow. Ans. None,
but he has stated before, but that Toussaint Chene, one
of the defendants said he could not then go but he would
return the next day and would together go and point
out the spot to plant.
En delibere. Geo. Lyons.

Parties appeared. Plaintiff filed declaration.
ant pleads the general issue.
En delibere.

Defend-

UPPER CANADA COURT RECORDS.

83

Parties appeared. Que le defendant apparu en per- ^"*^™ i>ecaraux
Sonne et reconnu de etre en coUere il a temerarrement et Phiup Beiiangy.
malle apropos tenu de propos injuriuse a L'honneur du
demandeur qu'il renconnait les avoir pas merittee et de
sus sa saumette a la Cour.
Judgment. Defendant pay costs of suit.
Issued execution 26th August, 1791. Eeturnable in
two months.

Debt .
Costs
Writ .
Bailiff

£0 0 0
0 9 5
£0 9 5

£0 0

1 0
4 0

c. s.

For debt. Continued 8 days.

Plaintiff filed declaration.
fendant.

Roe appeared for de-

Roe for plaintiff. Defendant appeared, and for plea
says that he never took an anchor from Mr. May, the
plaintiff. Plaintiff called as witness Robert Freeman,
and duly sworn.
Q. by plaintiff. If he has any knowledge of an
anchor being removed from Mr. May's yard to the King's
shipyard by a party of seamen under the direction of
the defendant, James Fleet, and when. Ans. That he
has knowledge from conversation among the seamen that
some time in the spring last an anchor was removed
from the plaintiff's yard to the King's shipyard, and that
George Dunn, a gunner, was one of the party that as
sisted to remove it.
Q. by the plaintiff. Did you never say to any person
or persons that you assisted to remove the anchor. Ans.
No, he never did. His
Robert X Freeman.
mark.

Andre De Caraux
vs.
PhlHp Beiiangy.
ABOVE TEN
POUNDS
STERLING. Durand vs.
Llpps.
James May
vs.
James Fleet.

T. Smith, Clerk.

84 UPPER CANADA COURT RECORl

Plaintiff called as evidence John and sworn.
Q. by plaintiff. Have you any kiiww±ouge and what
of any anchor being removed out of J. May's yard to the
King's yard, and when? Ans. That some time last
spring he assisted to remove an anchor to the King's
shipyard from a house yard in Detroit; whether it Was
Mr. May's yard or not he cannot say, and that such
yard was joining on one side to Capt. Ford's, and that
Mr. Williams, Mate of the " Felicity " commanded a
party of six men, went to. the yard and showed them
the anchor, and that Mr. Fleet the defendant had no
hand in carrying away the anchor, nor was present from
the beginning to the end, being employed in another
command carrying wood into the j'ard to make sheaves
for blocks. His
John X Miller.
mark.
T. Smith, Clerk.
Plaintiff called as evidence Geo. Dunn, and duly sworn,
says that he was one of a party by order of Mr. Williams,
Mate of the " Felicity," that went to remove an anchor
from the yard next to Capt. Ford's house to the shipyard
and that he was present and saw it removed, and that
the defendant, James Fleet, was not present at any part
of the time. George Dunn.
X
]Mark of Geo. Dunn.
T. Smith, Clerk. ^
On motion of plaintiff, this action to stand over en
delibere. T. S.
Geo. Lyons Mr. Roe for plaintiff. Defendant not appearing.
Portier Benac, Esq. Plaintiff admitted to swcar to his account agreeable to
the Rule of Court served on defendant, and filed 26th
May last with the return of the service duly executed.
Sworn accordingly. Judgment, the defendant to pay the
plaintiff agreeable to said account and terms of the de
claration the sum of fifteen pounds, eight shillings and
twopence, currency and costs. T. S.
Execution issued 2nd July. 1791. Eeturnable first
Court in January, 1792.
Debt  £15 8 2
Costs taxed  8 12 2
£24 0 4

UPPER CANADA COURT EECOEDS.

85

Cap. ad. issued 4th August, 1791. Eeturnable in
February next. Sub. costs. T. S.
Roe for plaintiff. Default. Plaintiff moved for tryal Gabriel Geofroy
in 8 days. Ordered accordingly. Court adjourned to j. s^^couteur.
25th inst. T. Smith, Clerk.

Court of Common Pleas, holden at L'assomption
in the said District this 23rd day of June, 1791.
Present : . The Honourable William Dummer Powell,
Esquire, First Judge of said Court.

Province of
Quebec.District of Hesse.
23rd June, 1791.

Roe for plaintiff filed declaration. Default. The
Court met and received the above return, but, being a
great holiday Pete de Dieu, adjourned the same to the
30th inst. T. Smith, Clerk.

Francois Du
Chouquet vs.
Ronald McDonald.

Court of Common Pleas, holden at L'assomption in
the said District, 30th June, 1791.
Present: The Honourable William Dummer Powell,
Esquire, First Judge of said Court.
Settled.

Dismissed with costs.

Sworn Jno. Dodormead, a witness duly subpcenaed to
the bargain between the parties. Judgment, the defend
ant to pay plaintiff the sum of ten pounds eighteen shil
lings and ninepence Halifax currency, with costs. T. S.
Roe for plaintiff. Default. Continued at instance
of plaintiff eight days for proof.
Sworn Ebenezer Loveless, a witness duly subpoenaed
and proved the allegations as set forth in the plaintiff's
declaration and the defendant's wife acknowledged that
she does not know anything of the plaintiff ahd that she
was sorry for what she had said and that she was in a
passion at the time and did not know what she said, and
acknowledging the plaintiff to be an honest man. In
consideration of the plaintiff's relinquishing his claim to
the damages the defendants to pay costs. Allowed witness
two shillings and sixpence and Ferriage one-third pence.
T. S.

Province of
Quebec.District of Hesse.
30th June, 1791.

CAUSES UNDER
TEN POUNDS
STERLING.Wm. Hands
vs.
Bapt. Lacelle.
J. B'teiBeauparlant vs.
Jos. T. Framblay
dit Lionard.
Wm. Forsyth
vs.
Fr. D. Bellcour.

Geo. Lyons
vs.
J. B'te Reossell.

Jacob Dicks
vs.
Jno. Cray & Wife.

86

UPPER CANADA COURT RECORl

Pierre Branconnier
ViS.
Paul Dugas
dit La Breche.
Pat. .McNiffvs.
Charles Gabriel
and Toussaint
Chene.
Pat. McNiff
vs.
Charles Gabriel
and Toussaint
Chene.
Andre De Oaroux
vs.
Philip Beiiangy.

Mr. Roe for plaintiff.
the demand in eight days.

Default. Continued to prove

AIBOVE TEN
POUNDSSTERLING.
Pierre Durand
vs.
John Llpps.
James May
vs.
James Fleet.

Gabriel Godfray
vs.
J. Bte. Couteur.

Fr. Duohoquet vs.
Ranald McDonell.

Daniel Bliss, Elsq.
Attorney, etc.,
vs.
Wm. Thorn.
Graham &
McKenzie, vs.
Louis Campeau,
on theoppo.'iition
of Jac<iues Cam
peau, of St. Anne,
Yeoman.

For trespass. Dismissed with costs.

For debt. Dismissed for want of proof.

Roe for plaintiff. Default. Judgment. The defend
ant to pay the plaintiff thirteen shillings six and a half
pence currency of Quebec, and costs.
Issued execution 26th August. Returnable in two
months. Debt  £0 13 6l^
Costs  0 9 5
£1 2 111/2
Writ  £0 1 0
Bailiff  0 4 0
C. Smith, Clerk.
Eoe for defendant filed exception. Continued the
cause for 8 days at the instance of the Court in order
to look into the propriety of the defendant's exception.
Eoe for plaintiff. The defendant not appearing, on
motion of plaintiff, the cause is discontinued.
Eoe for plaintiff. Default. Continued 8 days on
motion of plaintiff.
Roe for plaintiff. Default. Continued 8 days on
motion of plaintiff.
Eoe for plaintiff filed declaration. Default.

That the opponent filed a mortgage bearing date the
first day of October, 1790, hypothecating sundry move
ables upon the farm of the defendant which the opponent
submits not to be subject to the execution of this Court.
Ordered by the Court: moveables not being subject of
mortgage, Sheriff is ordered to proceed to the sale, that
the opponent personally exposes to the Court that the
law returned by the Sheriff in the property of the defend
ant belongs to him and is ready to verify. Continued 8
days to prove the law by the opponent, but the law in

UPPEE CANADA COURT RECORDS.

87

the-interval to remain in the hands of the Sheriff. T. S.
Court adjourned to 7th July next. T. Smith, Clerk.
Court of Common Pleas, holden at L'assomption in province of
the said District on the 7th July, 1791. ws'trfct of Hesse.
Present: The Honourable William Dummer Powell, 7th July, 1791.
Esquire, First Judge of said Court.

Continued for 8 days on motion of plaintiff.

Continued en delibere.

Judgment for — say two pounds, ten shillings Halifax
and costs. T. S.

On motion of Mr. Roe, discontinued.

On motion of Mr. Roe, discontinued.
Mr. McNiff by procuration for defendant, and Mr.
Eoe for plaintiff, filed declaration.
The defendant for plea say that he is not indebted
in manner and form as set forth in the plaintiff's de
claration. The plaintiff replyed that he is indebted in manner and
form as set forth, which he is ready to verify. The cause
stands over for trial on the next adjournment upon
motion of plaintiff. T. S.

CAUSES UNDER
TEN POUNDS
STERLING.
Geo. Lyons
vs.
J. B'te Russell.
Pierre Branconier
vs.
Paul Dugas, dt.
La Breche
Pierre Lever^
dt. Martin, vs.
PraEcoIs Menard,
dt. CMontour.
Geo. Leith, sur
viving partner of
late company of
Leith & Shepherd.
vs.
J. B'te Laselle.
Geo. Sharp, Esq.,
vs.
J. B. Laselle.
Pierre Gabriel'
and Toussaint
Chene vs.
ArthurMcCormick.

Eoe for plaintiff filed declaration. The defendant ap
peared. Judgment on confession of the debt, twenty-five
shillings and tenpence Halifax, with interest from 5th
April, 1786.
£20. 5/10 Halifax currency.
Issued Execution 28th October, 1791. Eeturnable
flrst Court day in May, 1792.

Wm. Hands
vs.
J. B. Campeau.

Debt  £20 5 10
Costs  6 8 2
£26 14 0
Writ  5

C. S.

Pierre Durand
vs.
John Lipps.

Gabriel Godfray
vs.
J. B. Couteur.

UPPEE CANADA COUET EECOE'

Plaintiff appeared and filed an answer to defendant's
exception. Roe for defendant. Judgment on exception
favors defendant. Defendant agreed, on the plaintiff
paying costs up to this period to allow him to amend his
declaration. Amended accordingly, and continued to give
communication of the papers to defendant. T. S.
Roe for plaintiff. Default. The party who delivered
the goods being absent and cannot be had before this
Court, the plaintiff moved to have a rule served on the
defendant in order he may appear to purge himself upon
oath pro confesso and ordered accordingly. T. S.

Fr. Duchoquet
vs.
Ran'l McDonnell.

Eoe for plaintiff, and defendant appeared. That the
default in this cause being at first erroneously entered
it is now erased. Mr. Roe moved that he could not go
to tryal this day on account of one of his witnesses being
absent. The defendant for plea pleads the general issue.
The cause for tryal on the first adjournment. T. S.

Daniel Bliss,
Attorney, etc.,
vs.
Wm. Thorn.
Graham &
McKenzie vs.
Louis Campeau,
on the opposition
of Jacques
Campeau.

Default. This cause continued on motion of plaintiff
to next adjournment. T.' S.
This opposition is withdrawn by consent of parties
and on motion of plaintiffs, the law in question allowed
to opponent. Court adjourned on account of the harvest to the 4th
of August next, 1791. T. Smite, Clerk.

Province of
Quebec.
District of Hesse.
4 August, 1791.

Court of Common Pleas, holden at L' Assomption
in the said District on the 4th day of August, 1791, ac
cording to adjournment.

Present: The Honourable William Dummer Powell,
Esquire, first Judge of said Court.

CAUSES UNDER
TEN POUNDS
STERLING. George Lyons
vs.
J. B'te Reossell.
Pierre Branconnier vs.
Paul Dugas,
dit LaBreche.

Settled and the action withdrawn on motion of plaintiff.

T. S.

The defendant having filed his account agreeable to the
interlocutary judgment in this cause, the Court consider
that this cause be dismissed, as to the further demand for
possession which this Court is not competent to award
upon the present action.

William Harffy
vs.
Louis Causley.

This cause is dismissed. Parties having settled.

UPPER CANADA COURT RECORDS.

89

On motion of Mr. Roe, for plaintiff, the last rule in this
cause prolonged to fourteen days.

On motion of Mr. Roe, discontinued.
The plaintiff having given communication of his ac
count to the defendant only three days ago, the Court order
peremptorily that the defendant file his plea in eight days.
Mr. Roe, for plaintiff, filed rule and the return of
service on the defendant to appear this day. Court order
that his appearance be extended eight days on account of
the harvest.

CAUSES A/BOVB
TEN POUNDS
STERLING.
Pierre Gabriel and
Toussaint Chene
vs.
Arthur IMcCormick.
D. Bliss, atty. and
vs.
Wm. Thorn.
Pierre Durand
vs.
John Lipps.

Gabriel Godfray
vs.
J. B. Couteur.

Roe, for plaintiff, called as evidence Eobt. Abbott, who
was duly sworn, says that about two years since his father,
James Abbott, sold to the plaintiff a bay mare which he
bought from Francois Valcour, of St. Anne, and that the
defendant, in the month of May, last, being at the Glaize,
told the witness that the mare which the witness' father
had exchanged with the plaintiff for an ox, he, the de
fendant, had taken from the Indians as his property.
Robert Abbott.

Fr. Du dhouquet
vs.
Randall (McDonell.

Plaintiff called as evidence Louis Causley dit Benoit
of fuU age and duly sworn, and says : " Que environ deux
ans it est au service du demandeur, pendant quelle temS
it a soignier la jimmant que le demandeur, M. Dueho-
quette avoit achete de M. Abbott, qu'il connoit bien pour
avoir demeurer chez Mr. Abbott et y avoir soignier la meme
jimmant. Que I'automme passe le sauvage ont ce leve la
dite jimmat qu'ils sont vendu apres a une sauvages a
I'employ de demandeur de la quelle sauvages la defendeur
McDonell a prie la dite jimmant de force comme a lui
apprtenant, comme il a declare au temoin qu'il lui porta ce
printems du commencement de Mai une billet de M.
DuChaquet au sujet de la jimmat. Que dans le meme
tems avant de arriver a la glaise il a veu la meme jimmat
dans la possession de un Sauvage qui declara au temoin
qu'il avait recti de Mr. McDonell avec un barril du romme
pour un autre chevalle.
" Que le meme soir le defendeur avec Mr. Ironside son
venii trouver le temoin lui demander pour quoi il a- vouUii
oter la jimmat au sauvage, ce que le temoin ny a disant
qu'il a fait que I'arrettet pour examiner sy ce ette la
jimmat de son bourgois, et qu'a le demande du defendeur

C. H. filed
Subpoena AccountLetter.

00

UPPER CANADA COURT REC

sy connoissai la jimmat pour avoir lever et s'il en vouUu
faire serment, il dit que non, mai qu'il produrai un homme
qu'il avoit elever et qu'il soutienteroit par serment cette
ettoit la meme jimmat il avait vendu a Mr. Abbott. Que
le temoin declara que la dite jimmat valloit environ
quinze pounds, et pour louez un chevalle dans la pais
sauvage il coutait ordinairement trois piastre pour trois
ou quatre jour de marche, et que le demandeur lui a don
ner quatre piastre pour la voyage qu'il fut chez Mr.
McDonell ce printems, et les vivres que consistat en quinze
ou vingt livres de farrine, non comprie un chevalle qu'il hi
a fournir pour la voyage."
Allowed subpoena two shillings sixpence, Halifax, for
his attendance.

Geo. Lyons
vs.
Etienne Robldaux.

His
Louis X Causley dt. Benoit.
sa Marque apres.
Lecteur fait. T. Smith, Clk.
Roe, attorney for plaintiff, filed declaration. Defend
ant personally appeared. Judgment on confession of the
note for the balance of the same twenty-eight pounds,
Halifax currency. T. S.

Geo. Lyons
vs.
Joseph L'Bnfant.

Eoe, attorney for plaintiff, filed declaration.
S.

Default.

John Askin
vs.
Etieoine Latour,
dt. Bellar on the
opposition of
D. McKillip.

Smyth, for plaintiff. Mr. Eoe, for opponent. (This
action continued from page 1.) The opponent declares
he is not ready for tryal and filed affidavit to that effect.
That his papers respecting this cause are lost and that he
is now under the necessity of going to the Eiver Raisin to
get copies of them, but that he will be ready to try the
issue in eight davs. Ordered peremptorilv bv the Court.
T. S. r . .

George Lyons
vs.
Polior Benac.

Mr. Eoe, for plaintiff, informs the Court that on the
2nd day of July, last, a writ of fi.fa. was issued from this
Court at the suit of the plaintiff against the goods and
chatties, lands and tenements of the defendant, addressed
to the Sheriff of this District, who, in consequence granted
his warrant to Jas. Elam, one of his deputies, who, in
execution thereof, on the first day of August inst., was
violently assaulted and drove oif the defendant's premises
^. -. /'^'^''°* ^^'^^ ^ P^^«°°' as appears by the
affidavit of the sd. Jas. Elam, filed in Court marked (A),

UPPEE CANADA COURT RECORDS.

91

and the return of the Sheriff on the said writ; wherefore
prays the Court to award a writ of capias ad satisf a'ciandum
to issue against the defendant.
Court order that a capias do issue accordingly. T. S.

Court adjourned to 11 inst.

T. Smith, Clk.

Court of Common Pleas holden at L' Assomption in
the said District, on the eleventh day ofl August, 179],
pursuant to adjournment.
Present: The Honourable William Dummer Powell,
Esqr., first Judge of the said Court.
The Commission appointing Charles Smyth Clerk of
the Court was read and the state oaths required by law
administered, as also the oath of office.
Plaintiff appeared in person. Mr. Roe, of counsel for
defendant, appeared and filed plea marked C. Continued
for eight days.

Province of
Quebec.District of Hesse.
11 August, 1791.

Pierre Durand
vs.
John Lips.

Mr. Roe, of counsel for plaintiff, appeared. Defendant
in person.

Gabriel Godefroy
vs.
J. B'te Couteur.

It is ordered, on motion of Mr. Roe, that the rule for
administering the Serment decisoire to the defendant may
be quashed, and that a consent rule be entered whereby
Francis Chabert, Esqr., in behalf of the defendant, and Mr.
•James Mcintosh, on the part of the plaintiff, liquidate the
respective accounts of the parties and report the balance
due in fourteen days, and in case of difference the report
to be made on the umpirage of James May, of Detroit,
merchant, in three weeks from this date.

Mr. Roe, of counsel for plaintiff, appearing, prays the
judgment of the Court, and defendanfs attorney by pro
curation being present. Court considers that the plaintiff
do recover from defendant the sum of sixteen pounds. New
Yoric currency, price of the horse claimed by plaintiff, to
gether with two pounds for the expenses of claim, making
together eleven pounds, five shillings. Province currency,
unless within fourteen days he returns the horse to the
plaintiff in good condition, and shall pay for the detention
thereof one shilling and threepence, Province currency, per
day from the date of the writ in this Cause until the horse
be delivered — and costs of suits. And the Court, for reason
of such judgment, says that " there is not sufficient evi
dence of the malamens in defendant to charge him with
exemplary damages. Therefore he is adjudged as on a

Francois Duchouquet vs.
R. McDonnel.

92

UPPER CANADA COURT REC(

voye de foit to restore the object of his trespass and reason
able damage, or at his option to pay the price and expense
of claim."

George Lyons
vs.
L' Enfant.

On motion of Mr. Roe, attorney for plaintiff, continued
for fourteen days.

John Askin
vs
Etienne Latour,
dit Bellar, on the
opposition of
Daniel McKillip.

Mr. Roe, of counsel for the opponent, appeared and
filed exhibit marked with the letter T.
Ordered that the plaintiff do take communication and
answer in eight days.

Court adjourned to 18th inst.
Wm. D. Powell, J.CP.

C. H. Smyth, Clerk.

Province of
Quebec.District of Hesse.
18 August, 1791.

Court of Common Pleas, holden at L'Asromption in
the said District, on the 18th day of August, 1791, pursu
ant to adjournment.

Present: The Honourable William Dummer Powell,
Esquire, first Judge of the said Court.

Meldrum and Park
vs.
Edward Hazel.

Meldrum and Park
vs.
Thos. Smith, Esqr.

Pierre. Gabriel,
amd Toussaint
CJhene vs.
Arthur .McCormick.

Durand vs.
Lips.

Mr. Roe, of counsel for plaintiEf, filed declaration. De
fendant in this cause appeared in person, for plea says that
he is not indebted in manner and form as set forth in
plaintiffs declaration, and prays judgment of Court; and
plaintiff for reply saith he is indebted in manner and form
and does so likewise. On motion of Mr. Roe this cause is
set down for trial on next court day.
Mr. Roe, of counsel for plaintiff, filed declaration. The
defendant appears in person and prays the usual time to
plead. Ordered ; and cause continued to next adjournment.
Mr. Roe, of counsel for plaintiff, moves the Court that
the rule in the cause for trial extended to this day, be
further continued for eight days. Ordered accordingly.
Mr. Durand appeared in person. Mr. Eoe, of counsel
for defendant. The plaintiff for replication to the defend
ant's plea or answer, saith, that for anything in the said
plea contained, his suit ought not to be dismissed for his
said damages have not been liquidated or compensated by
any judgment of this Court, as by the said plea is untruly
alleged of which the plaintiff prays the Court will enquire
and condemn the defendant as before by his said declara
tion is prayed.
Continued for eight days.

UPPEE CANADA COURT RECORDS.

93

En delibere. Continued.

On motion of Mr. Roe for plaintiff, ordered that the
rule of the 14th of April, last, be made peremptory and that
the, defendant do file his plea in eight dayo.

Court adjourned to 25th inst.
W. D. P.

Ch. Smyth, Clerk.

John Askin
vs.
Latour dit Bellar.
on the opposition
of D. McKillip.
Groesbeck vs.
Visgar.

Court of Common Pleas, holden at L' Assomption in
the said District, on the 25th day of August, 1791, pur
suant to adjournment.
Present: The Honourable William Dummer Powell,
Esquire, first Judge of the said Court.
The parties being called appearing, Mr. Roe produced
as witness to prove his demand as contained in his declara
tion. Alexander McKenzie, of full age and not interested,
who being sworn and questioned by Mr. Eoe, of counsel
for plaintiff, says: That from the 30th of January to
the 12th of April, 1785, inclusive, he was clerk to Messrs.
JI. Park, plaintiff in this cause, and that the entries in
their books of account which he has compared with the
accounts exhibited were made by him and agree respectively
with the said exhibit, the several articles of which were
delivered to the defendant as to his order either by the
witness or in his presence. Alexander McKenzie.
Issued fee for 23rd August, 1792. Eet. 1st Court,
June, 1793.

Debt. Costs

£17 7 10
6 11 8
£23 19 6

Province of
Quebec.District of Hesse.
25 August, 1791.

Meldrum and Park
vs.
Edward Hazel,

Writ 5, interest on £17 7s. lOd. from 11th day of
August, 1791. C. Smyth, Clerk.
On motion of Mr. Eoe Court considered that judgment
be recorded against the defendant agreeable to the terms
of his declaration, the sum of seventeen pounds, seven shil
lings tenpence, Halifax currency, with costs.
The plaintiffs appeared by their attorney Mr. Eoe and
the defendant in his proper person, and filed his plea
marked B.
Continued for eight days for plaintiff's replication.

Meldrum and
Park, vs.
Thos. SmltM.

94

UPPEE CANADA COUET EECO

Pierre, Gabriel,
and Toussaint
Chene vs.
Mr. McCormick.
Durand vs.
Lips.

Groesbeck vs.
Visgar.

Lyons, plaintiff,
vs.
L. Enfant.

John Askin
vs.
Latour dit Bellar,
on opposition of
Daniel McKillip.
CAUS.BS UNDER
TEN POUNDS
STERLING.
Harffy vs.
Jos. Barron.
The same
vs.
Hannah Clark.
The same
vs.
Pardee.

Province of
Quebec. District of Hesse.
1 September, 1791.

Meldrum and
Park vs.
Thos. Smith.
P. G. and T. Chene
vs.
Ar. McCormick.

Continued on motion of Mr. Eoe for eight days.

The plaintiff appeared in person and the defendant by
his attorney, Mr. Eoe.
Ordered by the Court that the plaintiff be permitted to
make proof of the several articles of his account by
witness, and to that end that he do in eight days file the
names of the said witness with the respective interogatorus
to be answered by them, and that subpoenas be accorded
him for the appearance of his said witness in fifteen day-:.
Mr. Eoe, of counsel for plaintiff, filed rule marked F,
and on representation of defendant that he was served with
said rule too late to draw up the account and statements
necessary to form his plea. It is ordered by the Court,
that he be recorded eight days for that purpose to file
his plea.
On motion of Mr. Eoe, of counsel for plaintiff, it is
ordered that this cause do stand over for fourteen days.
Continued by the Court en delibere.

Parties appeared. Continued eight day« for proof of
plaintiff's demand.
Parties not appearing, dismissed.
No return.
Court adjourned to 1st September, 1791.
W. D. P. Chas. Smyth, Clerk.
Court of Common Pleas, holden at L' Assomption in
the said District, on the 1st day of September, 1791, ac
cording to adjournment.
Present: The Honourable William Dummer Powell,
Esquire, first Judge of the said Court.
Mr. Eoe appeared and filed replication marked C. De
fendant appeared in person— continued eight days.
Mr. Eoe, of counsel for plaintiff, moves the Court that
this cause be brought down for trial on Thursday next

UPPER CANADA COURT EECOEDS.

95

Ordered by the Court accordingly, and that a copy of this
rule be served on defendant or his agent.
Plaintiff filed declaration. Mr. Eoe appeared for de
fendant. Continued eight days.
The plaintiff appeared in person and filed exhibit D.
Mr. Eoe, of counsel for defendant, likewise appeared. Con
tinued for eight days.
Mr. Roe for plaintiff. The defendant appears in person,
and for answer to the plaintiff's declaration says that he is
not in his said quality indebted as- set forth therein, that
he finds in the books of accounts of his intestate certain
entries respecting transactions with the plaintiff which are
extracted and contained in the exhibits now filed marked
G, H, J, E, K, and having no personal interest in the said
estate he says the same before the Court, and prays to be
advised in the premises. Mr. Roe, for plaintiff, appeared
and filed his replication to said plea marked L. Continued
eight days. Discontinued on motion of plaintiff.
It is considered by the Court that the Sheriff do proceed
to the sale of the premises seized without regard to the
opposition. And in conformity to the ordinance, states as
the reason and ground of its judgment, that as the law
stands the judgment of the Court is to be satisfied out of
the lands and tenements of the debtor, failing his goods and
chattels. The judgment, if for more than ten pounds
sterling, hypothecates all the real property of the debtor,
and only a prior hypothecation can be admitted against it.
If such is pretended and is anterior to that which may have
grounded the judgment, the validity of it only can be in
quired into on the opposition. The plaintiff's demand is on
a bond and special mortgage of two acres stated to be in
the possession of the defendant, and surveyed as his pro
perty in September, 1788. The bond is before an officer
to whose accounts authenticity is given by a special ordin
ance of April, 1789. There is all appearance of good faith.
To the bond is annexed the receipt and ecquittance of the
former supposed proprietor. Against such an act the
opponent files two unauthentic documents, the admission
of which cannot cure their insufficiency without the inter
vention of the Legislature, so that the opponent's claim
must rest on that equitable principle of the Law of France,
which in favour of the proprietor or Bailleur du fonds,
creates a fictitious mortgage, hypotheque tacite without
the intention of deeds or judgments, but this equitable
fiction is not intended to do more for the owner than he

Edward Hazel
vs.
Meldrum and
Park.

Durand vs.
Ldps.

Groesbeck vs.
Visgar.

John Askin
vs.
Etienne Latour,
dit Bellar,
on the opposition
of Daniel McKillip.

96

UPPER CANADA COURT RECC

P, G. and
Toussaint Chene
vs.
Pat. McNiff.

Geo. McDougall
vs.
Geo. Lyons.

UNDER TEN
POUNDSSTERLING. Harffy vs.
Barron.
Wm. Searl
vs.
Ben. Marsaok,
Our Sovereign
Lord the King,
on information of
Wm. Harthorn
vs.
Wm. Scott.
The same vs.
Jno. Welch.
The same vs.
Mat. Dalson.
The same vs.
Thos. Smith.
The same vs.
Wm. Hands.

The same vs.
John Wheaton.
The same vs.
Presque CottS.
The same vs.
Fran. Guardln.

could do himself, by taking the Ifcgai si,c|;» to secure the
payment of his bond. Therefore, it foUows, he must prove
his title. No fiction can supply that, and when the docu
ments filed show on his part that he had none, none that the
King's Courts can acknowledge.
Mr. Roe, of counsel for plaintiff, appears, files declara
tion and admits the essoin of defendant filed and marked
A in lieu of application. Continued eight days.
The Sheriff having returned writ of fi. fa. in this cause,
with the opposition of Geo. Leith annexed, to the sale of
certain moveable property seized as belong to defendant.
The said Geo. Leith enters his appearance by Geo.
Ironside to support the same filed paper marked A.
Mr. Roe, of counsel for plaintiff, admits the said ap
pearance and paper filed and prays the judgment of the
Court. By the Court it is considered that the Sheriff do
proceed to the sale of the effects seized- without regard to
the said opposition, and in compliance with the ordinance
states as cause and ground of its judgment that by law
moveable property cannot be subject to hypothecation, and
that the appostella to the opposition show that there was*
no sale, but a pretended mortgage of the moveable goods
which can operate no legal effect.
Parties not appearing. Cause dismissed.

The parties appeared; eontinued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; eontinued eight days.
The parties appeared; continued eighFdays.

UPPER CANADA COURT RECORDS.

97

The parties appeared; continued eight days.
The parties appeared; continued eight days.
The parties appeared; continued eight days.
¦ The parties appeared; eontinuecl eight days.
Mr. Montigny presents to the Court in behalf of
"Poller Benac, Esq., a petition marked A and a paper pur
porting to be an affidavit of the said Poller Benac, taken
before Geo. Sharp, Esq., marked B.
The above exhibit filed by the Court.
Court adjourned to 8th September inst., (1791).
Charles Smyth, Clerk.
Wm. D. Powell, J.CP.
Court of Common Pleas, holden at L'Assomption in
the said District, on the 8th day of September, 1791,
pursuant to adjournment.
Present: The Honourable William Dummer Powell,
Esquire, first Judge of said Court.
Mr. Eoe, for plaintiff. Defendant appeared in person.
On motion of plaintiff's attorney it is ordered that this
cause be set down for trial on the 29th day of September
inst. Issued subpoena to defendant 24th September. C. S.
Mr. Eoe filed rule for trial of this day on suggestion
of defendant filed and marked D that he cannot, from
illness, attend the trial of this cause on this day. It is
ordered by the Court that it do stand over for trial in
fourteen days.
The parties appeared. The defendant filed paper
marked with letter E, and moved the Court that the prayer
of the rule in this cause of the 25th August be extended,
and that he gave leave to file his interrogatories in eight
days, and that this cause be set down for trial on the
23nd inst. Ordered accordingly.
8a

The King, on in
formation of
James May,
vs.
Jacques Baby.
The same vs.
The same.
The same vs.
Geo. McDougall.
The same vs.
Fran. Frecot.

Provliice of
Quebec.District of Hesse.
8 Sept., 1791.

Meldrum and
Park

Thos. Smith.

Pieire, Gabi iel.
and Tous.saint
Chene vs.
.\rthur McCormick.

Durand vs.
Lips.

98

UPPER CANADA COURT RECORDS.

Groesbeck vs.
Visgar.

Lyons vs.
L'Enfant.Hazel vs.
:\leldrum and
Park.

Pierre, Gabriel,
and Toussaint
Chene vs.
Pat. McNiff.

UNDER TEN
POUNDS.
Wm. Searl
vs.
Marsaok.
The King, on
information of
W-m. Harthorn
vs.
Wm. Scott.

On motion of Mr. Roe, it is ordered that the merits
of this cause be tried in fourteen days. Issued subpoena
for plaintiff 16th September, 1791. C. S.
Continued on motion of Mr. Roe for one month.
Mr. Roe filed plea marked B. The defendant appears
in person, and for replication to the defendant's plea saith
they are indebted in manner and form as set forth in his
said declaration, whereof he prays the judgment of the
Court. It is ordered by the Court, on motion of plaintiff, that
this cause be set down for trial in fourteen days.
Issued subpoenas 9th September for Luke Killan, Jas.
Benjamin, Judith Eamsay, and Antoine Beauforce.
Defendant files plea to plaintiff's declaration marked
B. Mr. Roe appears for plaintiff.
Cause continued to next adjournment.
Dismissed.

Judgment, that the defendant be condemned to pay
the penalty of five shillings as demanded.
This is an action on a new penal statute, and by the
appearance in Court must have engaged much attention.
Although by the ordinance the jurisdiction given to this
Court is summary and without appeal, yet being the first
determination here on the construction of the ordinance
the Court assigns the grounds of its judgment that the
public may at least have the benefit of authentic repre
sentation to the Legislative authority if judged requisite.
By the ordinance of 1791 magistrates in towns are em
powered, at the request of the inhabitants, to make regula
tions for the police, which being published shaU have force
of law for six months ; the lower penalties to be recovered
by plaint before one Judge of the Common Pleas as in
causes under £10 sterling without appeal. The objection
by the defendant is that his cow was not wandering in the
street, but in a lane, so not within the regulation. Penal
statutes are to be construed strictly but not absurdly.
.Every public thoroughfare in a town is a street, the King's
highway. This plea admits everything else, but others
respecting the legality of the publication of the regulations,
it IS requisite that the Court should opine on that objec-

UPPER CANADA COURT RECORDS.

99

tion in their judgment in this case, as that would be fatal;
the Court has examined the ordinance and the testimony.
The ordinance requires publication simply without direct
ing the mode as in former ordinance, therefore, the Court
is of opinion, that the affixing the regulations as proved
at the usual place, and crying them at the church door
at the issue of Grand Mass on a Sunday is sufficient
evidence of notoriety to take away the plea of ignorance.
Few laws are so well promulgated. The declaration de
mand costs, but none can be given, as the conviction is
summary and the ordinance gives costs only on suit for
fines exceeding forty shillings.
Judgment that the defendant be condemned to pay the
penalty of five shillings.

The same vs.
Jno. Welch.

Judgment as above.

The same vs.
Math. Dalson.

Continued by the Court en delibere.
Continued by the Court en delibere.
Continued by the Court en delibere.
Continued by the Court en delibere.
Continued by the Court en delibere.

The same vs.
Wm. Hands.

Tihe same vs.
Jno. Wheaton.
The same vs.
Presque Cott§.
The same vs.
Fran. Guardine.

The same vs.
Thos. 'Smith.

Judgment that the plaintiff do recover the penalty of The King, on the
° ^ _i .; information of
James May
vs.
Jacques Baby.

twenty shillings as demanded.

Judgment dismissed, the defendant not being occupier
of the house although proprietor.

The same vs.
The same.

Judgment that the plaintiff do recover the penalty of
five shillings as demanded.

The same vs.
George McDougall

Judgment that the plaintiff do recover the penalty of
five shillings as demanded.

The same vs.
Fran. Frerot.

Parties appeared, filed sum. Continued fourteen days
for proof.
Continued to next adjournment.
The sheriff filed writ of fi. fa. issued in this cause with
the opposition of Andre Decaroux to the sale of a boat
seized by virtue of the said writ, and the said opponent ap-

Jno. .Baptiste
Frederic vs.
Louis Vessineau.
Bellecour vs.
Monforton.
Geo. McDougall
vs.
Geo. Lyons, on
opposition of
Andre Decaroux.

100

UPPER CANADA COURT RECORDS.

peared and prayed time to prove the allegations of his
said opposition. It is ordered by the Court that the
opponent do prove the same in fourteen days.
Mr. Roe for plaintiff.
Issued subpoena to opponent. Returnable 22 inst.
20th September, 1791. C. S.
Court adjourned to 22nd September, 1791.
W. D. Powell, J. C. P.

Province of
Quebec. District of Hesse.
22 Sept., 1791.

Pierre, Gabriel,
and Toussaint
Chene vs.
Arthur
McCormick.

Court of Common Pleas, holden at L'Assomption in .
the said District, on Thursday, the 22nd day of September,
1791, according to adjournment.
Continued by Mr. Roe in the rule for trial unto next
adjournment. •

Edward Hazel
vs.
Meldrum and
Park.

Plaintiff in person. Mr. Roe for defendant. Plaintiff
called as witness in this cause Luke Kellin, of full age and
not interested, who was sworn to declare the truth.
Ques. by plaintiff : Were you ever employed, and when,
by Meldrum and Park, or Mr. Park, to go to the plaintiff
at the mouth of the river for one hundred cord of wood and
a vessel and her rigging?
Ans.: That he recollects in the spring of the year,
about six years past, he was employed by Jlr. Heward as a
seaman at sixpence a day to bring up a vessel from before
the plaintiff's door; that when she arrived at Detroit he
applied for his payment and was referred by Mr. Heward
to Messrs. Meldrum and Park, that ilr. Park told him
Mr. Howard's engagement was nothing to them, but that
they would pay him by the month and not by the day, and
sent him back again in the vessel with the master, one
McKay, and another seaman, with Mr. Heward, to take
in cord wood from the plaintiff's. That he remembers the
quantity from the circumstance of Mr. Hazel's being
obliged to borrow eight cords to make up one hundred
cords. Ques. by plaintiff : Was the vessel and rigging in good
order when you received them, and where did you i-eceive
the rigging?
_ Ans. : That the vessel, to appearance, was in good con
dition, and that he received the riii-gino-. ^vhich was like
wise in good condition, out of the plaintiff's house.
Ques. by plaintiff: Where and to whom was thc wood
delivered ?

UPPER CANADA .COURT RECORDS, 101
Ans. : That a part of it was landed in three tiers upon
the bank before Mr. Park's house ; that part of the rest, by
order of Mr. Meldrum, was landed before Mr. McComb's,
and the remainder above Mr. McKee's.
Witness, C. S. Luke Killan
The plaintiff called as witness Jaines Benjamin, and
duly sworn.
Ques. by plaintiff : Have you any knowledge that Mr.
Park at any time and when, came down to the plaintiffs
house to bargain for fire wood, and to have his vessel taken
care of, and what is your knowledge of the premises?
Ans.: That he remembers in the Fall, about six years
ago, Mr. Park came down to the plaintiff's house, and
witness heard them talking about firewood, but what bar
gain they made, if any, he cannot say, except that Mr.
Hazel came to the witness to borrow a bottle of rum to give
to Mr. Park's people upon closing a bargain, as he said,
for one hundred cords of wood, and that in the Spring of
the year the plaintiff called the witness at two different
times from his work in the field to assist in clearing the
ice from Mr. Park's vessel, and that the same Spring the
witness lent to the plaintiff eight cords of wood to make
up, as the plaintiff said, the one hundred cords he was to
deliver to Mr. Park, and that Mr. McKay, master of the
vessel, was present and measured the eight cords as for
that purpose. His
Witness, C. S. James X Benjamin.
mark. ¦
Plaintiff caUed as witness Judith Eamsay, who was
duly sworn.
Ques. by plaintiff: Have you any knowledge, that at
any time and when, Mr. Park contracted with the plaintiff
for a quantity of firewood, and also to take care of a vessel
that was froze in the ice before the plaintiff's house, and
what knowledge have you?
Ans.: That about six years ago last Fall, she was at
plaintiff's house when Mr.' Park came down to bargain for
some firewood. What the bargain was she cannot say, but
that the plaintiff employed two hired men all the winter
to cut wood, that the witness cooked for them, and then
understood that one hundred cords was to be delivered to
Mr. Park. That she saw Mr. Park go with the plaintiff to
the garret of his house to choose a place to put the rigging

102 UPPER CANADA COURT -RECORDS.
of the vessel in during the winter, and that during the
winter the plaintiff took care of the said vessel.^ Her
Witness, C. S. Judith X Ramsay.
mark.
Plaintiff filed exhibit C, which was admitted by de
fendant's attorney.
Mr. Roe, for defendant, filed exceptions marked Ex. D
and Ex. E.
The plaintiff admits that vessel belongs to Messrs.
Meldrum and Park, commanded by Mr. McKay, took no
other quantity of wood from the plaintiff in the spring of
1785 than the hundred cords referred to in the foregoing
testimony. Mr. Roe called as evidence in defence, Hugh Heward,
of full age and not interested, who was duly sworn to
declare the truth.
Ques. by defendant. : Did you or the firm of Heward
and McCaslan, at any time, and when, receive from the
plaintiff, and what quantity of cordwood; in whose vessel
and by whom commanded?
Ans. : That Heward and McCaslan did receive from
the plaintiff, between the months of April and June, 1785,
seventy-four cords of firewood, which was conveyed in
Meldrum and Park's vessel, " The Friends," commanded
by Norman McKay, and- that the same was delivered below
Mr. McComb's house, the whole agreeable to the exhibit E
filed in court.
Ques. by the Court: Did Heward and McCaslan con
tract with the plaintiff, and when, for the said wood?
Ans. : That they did contract with the plaintiff some
time in the winter of 1784-85 for a quantity of wood
specified in exhibit C filed in court.
Ques. by the Court : Do you know if Messrs. Meldrum
and Park undertook to pay to the plaintiff the price of any
part of the said wood?
Ans. : I do not know of any other quantity of wood.
Ques. by the Court: To whom did Heward and
McCaslan pay freight for the said seventy-four cords of
wood? Ans. : That Hewatd and McCaslan did not pay freight
nor had any settlements of accounts until after their affairs
were put into the hands of trustees.
Hugh Hewaed.
Issued subpoena for Ben j. Knap and Wm. Lee. C. S.

UPPER CANADA COURT RECORDS.

103

On motion of plaintiff cause eontinued to next adjourn
ment for further proof that the wood credited to him by
Heward and McCaslan was delivered in the fall of the
year 1784.
Plaintiff in person, Mr. Roe for defendant.
Upon representation by plaintiff that three of his
witnesses are sick and cannot attend, it is ordered on con
sent of Mr. Roe, that those who do attend shall be heard
without prejudice to the plaintiff's right of examining the
other witnesses. Plaintiff filed interrogatories C and called
upon Joseph Pouget, who was duly sworn to the said
interrogatories. Ans. to first interrogatory :(. Repond que oui.
Ans. to second interrogatory: Repond qu'il a connais-
sance que Mr. Durand a fait cette demande.
Ans. to third interrogatory: Repond que oui.
Ans. to fourth interrogatory: Repond que oui.
Ans. to fifth interrogatory : Repond qu'il a connais-
sance que Mr. Urquhart, einquieme nomme par la Cour a
pris les dires des quatres arbitres et comme iis ne trouvait
pas d'accord les emportent chez lui promettant d'en faire
une rapport a la Cour.
' Joseph Pouget.
Plaintiff called upon Mr. Thos. Smith, who was duly
sworn to answer to certain interrogatories filed marked G.
Ans. to first interrogatory: That he has no knowledge
that the defendant returned the land in question, but
recollects that the defendant told him that he was going
to the Petites Ecores, that he would or could not live upon
the plaintiff's land, the plaintiff not having fulfilled his
engagement, and that as to the ten baskets of wheat, the
plaintiff did offer them to defendant who refused sowing
because the land was not fenced, and that this happened
about a month before Lips instituted his action against
the present plaintiff.
Continued on motion of plaintiff to next adjournment.
T. Smith.

Durand vs.
Lips.

Mr. Eoe 'for plaintiff. Defendant in person. Mr. Eoe
filed Exhibit M. Mr. Roe called upon John Burrel as
evidence in this cause, who was duly sworn to declare the
truth.

Wm. Groesbeck
vs.
Jacob Visgar.

104 UPPEE CANADA COUET EECOEDS.
Ques. by plaintiff : Is the Exhibit M, now shown you,
of your handwriting, and from whence were the contents
extracted ?
Ans. : It is of my handwriting extracted from the bonks
of account of Mr. Groesbeck, the plaintiff.
Ques. by the plaintiff: Are all the items in the >;iid
exhibit contained in the said books of account, and do they
correspond truly in the several extensions of dates and
sums ?
Ans. : Yes, they are all truly extracted from the plain
tiff's day book, except certain items against which no
name is inserted in the margin, which were extracted from
the ledger from entries in the handwriting of Edwar.!
Crofton. Ques. by the plaintiff : Do you know William Groesbeck,
Jacob Harsen, Garret Teller, Edward Crofton, John
Visgar, Garret Graverat, and Thos. Duggan, and have you
seen them write respectively, and are the items, in the >aid
exhibit set against the names of those persons severally
entered in the books of account in the proper writing of
the said persons respectively ?
Ang. : That he knows them all and has seen them write,
and that the items in the said exhibit written against their
respective names are in the proper handwriting of the said
persons in the said books of account, respectively.
Ques. by plaintiff: Are the several items in the •¦^aid
exhibit placed against your name entered by you in the
said books and were the articles respectively Ijy you de
livered to the said Garret Teller, or to his son?
Ans. : That the major part of the said items were not
by him delivered, but charged by order of Wm. Groesbeck
or delivered by himself.
Ques. by the Court : Were you at any time, and when,
clerk to the plaintiff?
Ans. : I am now, and have been at different periods
since the year 1786, clerk to the plaintiff.
Ques. by the Court: Were you in the habit of making
entries in the plaintiff's books against other persons, with
out seeing the goods delivered?
Ans. : Yes.
Ques by the Court: Do you know, if any, and which
of the persons whose names are inserted in the margin
of the said exhibit, at present within the jurisdiction of
this Court?
Ans. : John Visgar, Thomas Duggan and Jacob Harsen
are within the jurisdiction of this Court, but Garret
Graverat is deceased, and Croften has been about two years
absent from the District.

UPPEE CANADA COUET EECOEDS. 105
Ques. by plaintiff: Is the subscription to the se\eral
exhibits from Nos. 1 to 6, inclusive, filed by the plaintiff,
and now shown to you, of the proper handwriting of the
deceased Garret Teller?
Ans. : Yes.
Ques. by plaintiff: Is the exhibit now shown to you
filed and marked No. 69 in the proper handwriting of
Ch. Gerardine, and was the contents thereof paid by you
to him? Ans. That Mr. Gerardine wrote the sanie in his pres
ence, and that he paid the contents by order of the plaintiff.
Ques. by plaintiff: Are you acquainted with hand
writing of Wm. Park, one of the firm of Meldrum and
Park, and is the signature to the exhibit now shown to you
filed and marked No. 70 in the handwritinn of the said
Wm. Park?
Ans. : He is acquainted with the handwriting of Mr.
Park from having ^seen him write, and that he believes
the said signature is in his handwriting. Jno. Bueeel.
Plaintiff called as witness in this Court Hugh Heward,
of full age not interested, who was duly sworn to declare
the truth.
Ques. by plaintiff: Are the Exhibits, Nos. 67 and 68,
filed in court, and now shown to you, in the handwriting
of John McCaslan, your late partner, and were the re
spective sums of £136 7s. Id. and £9 12s., received by the
firm of Heward and McCaslan from the plaintiff on
account of defendant and wherefore?
Ans. : That the said exhibits are in the handwriting
of his late partner, and that the said sums were received
to the use of Heward and McCaslan from the plaintiff at
the request of Garret Teller.
Ques. by plaintiff: Was the plaintiff in the habit of
equipping the said Garret Teller at the period the said-
sums were received, and if so, was it not then customary
for the equipper to satisfy the debts of the equipped with
out any written order?
Ans. : I believe he was in the habit of equipping the
said G. Teller, and it was then the general custom to pay
the debts of the equipped by verbal order.
Hugh Hewaed.
Plaintiff called as witness Jacob Harsen, who was duly
sworn to declare the truth.
9a

106 UPPER CANADA COURT RECORDS.
Ques. by plaintiff: Were the items in the Exhibit M,
now shown to you and placed against your name in the
margin, severally by you entered in the plaintiff's books
of account, and what knowledge have you of the delivery
of the said articles to the said Garret Teller or to his use?
Ans. : That the several entries were by him made in the
plaintiff's books of account, and that he saw the articles
delivered, excepting those of 3rd November and 21st of
December, 1784, and three items of June the 3rd, 1785,
and likewise an item of 16th September, 1784, for cash
which he knows was paid by plaintiff although he did not
see it paid.
Ques. by plaintiff : Have you any knowledge of the sale
of a tract of land situated at the River a la Tranche by
the plaintiff to G. Teller, and what ?
Ans. : That he has not other knowledge of such sale,
except from hearing Mr. Teller say he had bought the
plaintiff's share of land at the River a la Tranche for five
hundred pounds, and that the new suit of clothes he then
had on were given him by plaintiff to bind the bargain.
The witness being unable to write from an illness in
his right arm has made his mark.
C. S. His
Jacob X Harsen.
mark.
Plaintiff called as evidence Thomas McCrae, who was
duly sworn to declare the truth.
Ques. by plaintiff: Did you, on the 4th of August,
1783, receive from the plaintiff any, and what sum of
inoney, on account of Garret Teller, and by whose order
did you receive the sum?
Ans. : That sometime in the year 1783 he presented
his accouht to Garret Teller, amounting to the sum of £53
14s. 2d., New York currency. That afterwards the plaintiff
desired him to charge the said amount to him, which he
did and rendered the same on the 4th of August, 1783.
Ques. by plaintiff : Have you any, and what knowledge
respecting the sale of a tract of land at the River a la
Trenehe by the plaintiff to the said Garret Teller, and at
what period ?
Ans. : He has not, but that he heard the plaintiff and
the deceased Garret Teller conversing about an exchange
of Teller's share of the land at Groce Point and the River
Sin Clair for the plaintiff's share of land on tke River a la
Trenehe, and that he afterwards heard John Mclntire,
their servant, complain that Teller had made a bad bar
gain in exchanging good land for bad.
Thos. McCeae.

UPPER CANADA COURT RECORDS.

107

Plaintiff called Jean Baptiste Petre and sworn.
Ques. by plaintiff: Did you at any time, and when,
work at Teller's house as a joiner ?
Ans.: Yes. Some time in the year 1782 or 1783, for
which Mr. Groesbeck paid him £4, New York currency.

Witness C. S.

His
Jean Baptiste X Petee.
mark.

Plaintiff called as witness Jean Baptiste Couteur, Sen.,
of full age, not interested, who was duly sworn to declare
the truth.
Ques. by plaintiff: Avez vous eonnaissance d'avoir
vendu et quand, une maison a Mons. Teller, pour quelle
somme, et de qui avez vous regu. le payment?
Reponse : II y a sept ou huit ans qu'il a vendu a Mons.
Groesbeck une maison et emplacement a la C6te des Pour
pour deux cents ponds qu'il a recu de Mons. Groesbeck,
mais qu'il passa le Titre a Mons. Teller.

¦ Sa
Witness C. S. Jean Baptiste X Couteue.
marque.
Continued on motion of Wm. Roe to next adjournment.
Continued on motion of plaintiff.

Mr. Eoe, for plaintiff. Opponent appeared in person.
The opponent called as witness to support his opposi
tion Frangois Eaget, of full age, not interested, who was
sworn to declare the truth, the knowledge he has of an
account between defendant and Andre Decaroux, respecting
the building of a boat.
Declares: Qu'il etait temoin d'un arrangement entre
Geo. Lyons et Decaroux, pour la construction d'une batteau,
quand Mr. Lyons c'est oblige de fournir tous les matteriaux
et un homme pour I'aide avec des vivres pour I'homme,
pour Decaroux et sa femme pendant qu'il travaillerois et
de lui payer 'par desus vingt ponds quand I'overage serait
fait.

Witness C. S.

Sa
FEANgoia X Eaqet.
marque.

Pierre, Gabriel,
and Toussaint
Chene vs.
Pat. iMcNiff.
McDougall vs.
Lyon, on the
opposition of
Andre Decaroux.

Continues on motion of opponent for further proof.

108

UPPEE CANADA COUET RECORDS.

CAUSES UNDER
TEN POUNDS.

Charles Beaubin
VS.
James May
Frederick vs.
Vesslnau. Bellecour vs.
Monforton.The King, on In
formation of
Wm. Harthorn,
vs.
Wm. Hands.

Issued subpoena to opponent 22nd. Eeturnable 29th
September. C. S.

Dismissed.

Continued the next Court day.
Continued to next Court day.
This cause dismissed upon deliberation for want of
proof, the ordinance requiring the conviction to be sum
mary, and it brings against reason that a defaulter on a
penal statute should be held over to second appearance
for a trifiing fine by the mere neglect of the informer to
make out his ease on the first summons.

The same vs.
Jno. Wheaton.

The same vs.
Presque Cott&.

Tlie same vs.
Francois Gerardin.

The same vs.
Thomas Smith.

Dismissed.Dismissed.Dismissed. Dismissed.

Court adjourned to 29th September, 1791.
Chas. Smtth. Clerk.
Wjt. D. Powell, J.CP

Province of
Quebec.
District of Hesse.
29 September,
1791.

Edward Hazel
vs.
Meldrum & Park.

Couet of Common Pleas, holden at L'Assomption m
the said District, on Thursday, the 29th day of September,
1791, according to adjournment.
Present : The Honourable William Dummer Powell,
Esq., first .Judge of the said Court.
The plaintiff in person. Mr. Roe for defendant. The
plaintiff called as witness in this cause Wm. Lee, of full
age and not interested, who was duly sworn to declare the
truth. Ques. In- plaintiff: Have you any knowledge of a
quantity of cordwood furnished by plaintiff and loaded in
Mr. Howard's vessel, commanded by Mr. McKay, if so
declare when, and the number of cords to the best of youi '
recollection ?
Ans. : That about seven years ago this fall he was em
ployed by Edward Hazel to draw to the water-side a

UPPER CANADA COURT RECORDS. 109
quantity of cordwood, cut by the witness and Benj. Knap
upon Captain Bird's lot. That he is certain that the vessel \
which took it away, was loaded four times, and he believes
a fifth time; that to the best of his knowledge and belief
the vessel carried ten cords at each loading; that he has
knowledge that the said wood was delivered upon account
of Mr. Heward, as he was part of the time upon the spot
to receive it and even bought some from the witness ; that
he has also knowledge that in the same fall the same
vessel was several times loaded by the plaintiff with wood
cut by himself ; cannot say how often, but to the best of his
belief it was at least three or four times, and that Mr.
Heward himself came down for the wood.
Ques. by plaintiff: Do you know if the plaintiff took
care of the vessel during the winter whilst she was frozen
up on the ice ?
Ans. : That he knows the plaintiff took care of the
vessel from having frequently assisted him to drive away
the ice.
Ques. by plaintiff: Have you any knowledge that the-
plaintiff delivered any quantity of cordwood to Mr. Park
in the following spring, and the number of cords?
Ans. : That the witness with three others were em-
pleyed by the plaintiff to cut cordwood for the spring ; that
he knows one hundred cords were put on board the vessel
in the spring; that he does not know on whose account
the wood was delivered, but always understood that it was
for Mr. Park, as Callagan, one of the boatmen, told him
so, and the witness himself saw Mr. Park at the plaintiff's
in the winter, when he was bargaining for firewood as the
-witness was told by the plaintiff at this time.
Cross-questioned by Mr. Eoe : Do you recollect that Mr.
Park's people eut any wood near Mr. Hazel's that fall?
Ans. : Yes, that Mr. McKay and some others cut a
quantity of wood on the Isle of Boisblane that fall.
Ques. by defendant: Do you know how the wood, cut
by Mr. Park's people, was carried away ?
Ans. : In the same vessel.
Ques. by defendant: Was such conveyance before or
after the wood carried from the plaintiffs ?
Ans. : That they took away the wood from Mr. Hazel's
whilst there was any there, but McKay, the master of the
vessel, finding there was not wood to land went to the
Island to get a load, and urged the witness and Knap to go
down to the Island to help; that they went and cut six
cords in two days, that the vessel was loaded, went to
Detroit twice to his knowledge, and then returned to the
plaintiffs, where the vessel was froze up.

110 UPPEE, CANADA COUET EECOEDS.
On prayer of witness Court taxes his allowance at
2s. 6d., Halifax, per day for two days.- C. S. His
Witness C. S. William X Lee.
mark.
The plaintiff calls as witness Benj. Knap, of full age
and not interested, who was sworn to declare the truth.
Ques. by plaintiff: Do you recollect, or have you any
knowledge, of a quantity of cordwood furnished by plain
tiff to Mr. Heward in the vessel commanded by Mr.
McKay? If so, declare the quantity and when it was
delivered to the best of your knowledge.
Ans. : That he helped to cut, cart and split wood for
the plaintiff about six or seven years ago in the fall; that
the wood was received by one, Mr. McKay, in a small
vessel; that he does not know the exact quantity, but that
the vessel was loaded different times, he thinks more than
twice ; that the plaintiff's team being worn out, the witness,
with Wm. Lee, went to the Island of Boisblane for two
days to eut wood and load the vessel.
Ques. by plaintiff: Have you any knowledge that the
plaintiff furnished any, and what quantity, of firewood to
Mr. Park in the spring following?
Ans. : That he has no knowledge other than that the
plaintiff told him in the winter that he had contracted to
cut a hundred cords, but did not say for whom ; that in the
spring the- plaintiff told him that he had finished his com
plement and the witness saw McKay's vessel loading in
the spring at Mr. Hazel's. Benjamin Knap.
On prayer of witness Court taxes his allowance at 3s.
and 6d. per day for four days. C. S.
The plaintiff called as witness Antoine Beauford, who
was sworn to declare the truth.
Ques. by plaintiff: Avez vous connoissance d'avoir
mene Mr. Park de chez vous, jusau'a chez le demandeur
a fin de I'engage a soinge une battiment au defend'r qui
etoit pris dans les glaces aupres de chez Mr. Hazel, et
quand ce la s'est arrive?
Ans. : Que vers les f aites de Noel il y a six ans a ce qu'il
croire, Mons. Park I'engage de I'amener chez Mons. Hazel
pour faire un arrangement avec lui pour soinge son
battinlent pendant I'ever, qu'arrivant chez Hazel il lui a
dit ce la et la depuis Mons. Park et Hazel ont visiter a
deux repris le battiment qu'ete pris dans la glass et
iis ont monter ensemble dans la griner de Mons. Hazel,
mais quelles ont ete leur convention il ne pourra dire mais

UPPEE CANADA COUET RECORDS.

Ill

qu'ayant represente a Mons. Park qu'il fallri se depacher
pour se rendre, il repondit qu'il avait fait un affair et apres
avoir lii avec Mons. Hazel il s'en retourne.

Witness C. S.

Sa
Antoine X Bbaueoed.
marque.

Meld-rum & Park
vs.
Thomas Smith.

The plaintiff represents to the Court that he has closed
his proof and prays the judgment of the Court thereupon.
Continued by the Court en delibere.
Mr. Eoe for plaintiff. Mr. Smith in person.
That upon the suggestion of Mr. Smith the defendant
and interviewing plaintiff that he cannot obtain the
attendance of all his witness, two being about to leave the
place and others being absent. It is ruled by consent, that
such witnesses as are about to leave the place, may be ex
amined on interrogatories on Thursday next, and that the
cause be set down for trial in three weeks. C. S.
Mr. Roe for plaintiff. On motion by Mr. Eoe this ^^''tous^IS^
cause is set down for trial on Thursday next, upon due Ohene
proof of notice to the defendant, who does not appear.
Issued subpoena to plaintiff's attorney 4th October,
1791. C. S.

vs.
Art. McCormick.

Mr. Eoe for plaintiff filed replication marked C. De
fendant does not appear.
On motion by Mr. Eoe this cause is set down for trial
on Thursday next, upon due service of notice on defendant.
Issued subpoena to plaintiffs 4th October, 1791. C. S.
Plaintiff appears in person. Mr. Eoe for defendant.
The plaintiff produced Mr. Ant. Beauford, of full age and
not interested, who was sworn to answer to certain inter
rogatories filed last court day, marked G.
Ans. to first interrogatory: Oui I'annee passe quelque
jour devant la St. Michel.
Ans. to second interrogatory: Oui.
Ans. to third interrogatory : Oui.
Ans. to fourth interrogatory : Non. Mr. Durand I'a fait
par ordre des arbitres — outrement la graine auroit etait a
la bris des anemaux ce qu'ils na pas etait.

Witness C. S.

His
Antoine X Beaufoed.
mark.

Pierre, Gabriel,
and Toussaint
Chene vs.
Pat. McNdff.

Pierre Durand
vs.
John Lips.

Continued on motion of plaintiff for three days.

112

UPPEE CANADA COUET EECOEDS.

McDougall
vs.
Lyons, on the
opTiosltlon of
Andre Decaroux.

Mr. Eoe for plaintiff'. The opponent in person.
Court orders that the sheriff proceed to the sale of the
boat seized as the property ol the defendant in satisfaction
of the plaintiff's judgment, subject to the payment of
twenty-five pounds, eighteen shillings and sixpence, New
York currency, for labour and materials expended on the
said boat, by the opponent, he filing in the office the certi
ficate of Geo. Lyons, sworn before a Justice of the Peace,
stating the items of the balance due to the builder, whicli
sworn certificate is admitted by consent of parties. Costs of
the opposition to be paid to the opponent out of the
proceeds of the estate.

Groesbeck vs.
Visgar.

The defendant attended in person, and on consent of
Mr. Eoe, cause was continued for trial on next court day.

¦CAUSEIS UNDER
TEN POUNDS.

J. B.-ipt. Frederick
Louis Vessienau.

Plaintiff in person. Cause continued eight days.
dllows witness ten shillings, Halifax.

Court

John McClean.

Bellecour vs.
Monforton.
Harffy vs.
Hugrh Holmes.
Harffy vs.
J. B. Labadle.
dit IBalleschamp.
Thos. Smith
vs.
Andr6 Decaroux.

John Smith
vs.
Andrg Decaroux.
Wm. 'Searl
vs.
Pierre Cardinal.

Province of
Quebec.
District of Hesse.
6 Oct., 1791.

Pierre Durand
vs.
.Tohn Lips,

Continued for eight days.
Parties not appearing; dismissed.
Parties not appearing, cause dismissed.
Judgment for plaintiff for the sum of eight shillings
and sixpence, Halifax, in terms of the declaration.
No return; dismissed. •
Parties appearing, cause continued eight days.
Court adjourned to 6th October, 1791.
Ct-ws. SitYTii, Clerk.
W. D. Powell, J.CP.
Couet of Common Pleas, holden at L'Assomption
in the said District, on Thursday, the sixth day of October,
1791, pursuant to adjournment.
Present: The Honourable William Dummer Powell,
Esq., first judge of said Court.
Plaintiff appeared in person. Mr. Eoe for defendant.
Plaintiff produced as witness Francois Eevaux dit La

UPPER CANADA COURT RECORDS.

113

Jeuness, who was duly sworn to certain interrogatories
already fUed marked A.
Ans. to first interrogatory : Oui apres la Eecolle de
L'annee passe.
Ans. to second interrogatory: Ds appertient a ^ladam
Laforest. Ans. to third interrogatory : Le as aonnaissance d'auoir
vu des touts des perches dan le feu de Mons. Lips mais el
ne sail quils appertient.
Ans. to fourth interrogatory: Mon dn'a point de con
noissance. Sa
Witness C. S Feancois X Eevaux dit La Jeuness.
marque.
Continued on motion of plaintiff to next court day.
Mr. Eoe for plaintiff. Defendant in person. Defend- Groesbeck
ant files foiir exhibits marked with the letters N, 0, P, and visgar.
Q, and on motion of Mr. Eoe the cause was continued to
next adjournment for communication of the first exhibit.

Mr. Hazel in person. Mr. Eoe for defendant. The
plaintiff files two papers marked with the letters P and G,
and moves the Court for judgment. Continued by the
Court en delibere.

Edward Hazel
vs.
Meldrum & Park.

Mr. Roe for plaintiff appears and files notice of trial as
ruled last court day marked P. Defendant in person
appears. The defendant exposes to the Court and for answer to
the plaintiff's demand submits that his agent, Geo. Lyons,
did receive from the plaintiff thirty-one pounds, eleven
shillings and sixpence towards the payment of one-half of
the purchase of a lease bought at auction by the defendant
at the plaintiff's request, upon agreement tliat on payment
of such moiety the plaintiff should enjoy one-half interest
in the said lease, but they failing to pay in such entire
moiety, the defendant ,was kept out of the enjoyment his
said purchase, from the 8th day of August, 1790, to the
25th of January, 1791, during which periods the plaintiffs
enj,oyed the said lease in toto, for which the defendant
considered that the said -sum of £31 7s. 6d. was not more
than sufficient compensation, of which he prays judgment,
and that he may be dismissed from this action with costs.
And the plaintiffs, by their attorney, for replication to the
defendant's plea says that during the period stated in the
!>aid plea the said premises were in the power, of the

tierre. CJabriel,
and Toussaint
Chene vs.
Arth. McCormick.

114

UPPER CANADA COURT RECORDS.

Sheriff of this District, to whom the plaintiffs were ac
countable, and further that such possession was at the
repeated request of the defendant, whereof he prays judg
ment. The defendant files Exhibit F.
Judgment for plaintiff for the sum of nineteen pounds,
twelve shillings and twopence, lawful money of the Pro
vince, with costs.
Issued execution 28th October, 1791, set first Court in
May, 1792. Debt  £19 12 2
Costs  _ 7 4 3
£28 16 10
Writ  0 5 0
c. s.

Pierre, Gabriel,
and Toussaint
Chene vs.
Pat McNiff.

Islv. Eoe appears for plaintiffs. Defendant appears in
his proper person. The plaintiff filed subpoena issued in
this cause marked D, and produced Geo. Lyons as witness,
who was duly sworn to declare the truth.
Ques. by plaintiff: Have you knowledge that at any
time, and when, Mr. McCormick, as stated in the declara
tion, gave the plaintiff permission to sow the farm now in
possession of the defendant ?
Ans. : That he the witness conversed with Mr.
McCormick respecting the plaintiffs' sowing the land in
question before the seed was put into the ground ; that Mr.
McCormick seemed to have no objection, but has no
further knowledge of any .except permission by Mr.
McCormick before the seed was sown, other than his de
claring himself satisfied that it should be done; that the
plaintiffs might be able to pay for the land as soon as
possible. Ques. by plaintiff: Were you present at any time, and
when, at a conversation between Arthur McCormick and
Toussaint Chene, one of the plaintiffs, and if so what was
thc tenor or jDurport of such conversation?
Ans. : That he was present after the sale of the farm
by the Sheriff, but at what period he does not exactly recol
lect, with Mr. McCormick, and the three plaintiffs, when
the former asked the latter how much wheat they had
sown upon the farm, to which they replied that they had
received twenty-five bushels of Fall wheat and intended
to sow thirty bushels of Spring wheat, upon which Mr.
]\IcCormick observed that he was well pleased, as that
would enable them to make up his money.
Ques. by plaintiff : Do you know how much wheat was
sown by the plaintiff last fall upon the farm in question?

UPPEE CANADA COUET RECORDS. 115
Ans. : That he knows only from their own report that
they had sowed twenty-five bushels.
Cross-questioned by defendant: Do you know, that at
the time Mr, McCormick gave the permission as you sug
gest, if it was intended for the benefit of Charles Chene
and his wife and their minor children, or for the benefit of
their other children?
Ans. : That he has no knowledge of any such distinction.
Ques. by defendant: By whom was the farm that the
defendant now lives upon occupied at the time the con
versation passed which you have now related?
Ans.: That it was occupied by Charles Chene and
Gabriel and Toussaint Chene, his sons, and that Pierre
Chene lived upon his own lots.
Ques. by defendant: Have you any knowledge that
Pierre Chene, one of the plaintiffs, laboured the farm in
question, jointly with the other two plaintiffs?
Ans. : That he has none. Geoege Lyons.
The plaintiff called upon Gregor McGregor, Esq.,
Sheriff of the District, who was duly sworn to declare the
truth. Ques. by plaintiff: Did you at any time, and when, in
your capacity of Sheriff, put the plaintiffs forcibly out of
possession of the farm now occupied by the defendant, and
if so at whose requisition?
Ans.: That in the month of January last, at the re
quisition of Mr. Arthur McCormick, upon his payment to
the witness of the price at which the lease of Chene's farm,
now occupied by the defendant, was adjudged to him, the
witness gave him legal possession, but used no force to
dispossess the plaintiffs, for on his appearance the house
and farm was delivered up by the occupier.
Cross-questioned by the defendant : Whom did you dis
possess of the farm in question?
Ans. : Charles Chene was the defendant whom he was
to dispossess. GeeCtOE McGeegoe, Sheriff.
Plaintiff called as witness Francois Deruisseau de
Bellecour, who was duly sworn to declare the truth.
Ques. by plaintiff : Did you at any time, and when, in
your capacity of acting Notary, prohibit the defendant
from cutting the wheat growing on the farm now occupied
by the defendant, the property of the plaintiffs, if so was
such prohibition signified to him in writing?

116

UPPER CANADA COURT RECORDS.

Ans. : That on the 15th of July, last, the witness, at
the requisition of Pierre, Gabriel and Toussaint Chene,
protested to the defendant against cutting the wheat grow
ing upon the farm he now occupies, which the said Ch@nes
claimed to be their property, as having sowed it in the fall;
that defendant was then at harvest and told him that he
was cutting his own wheat and had no other answer to
make him, and this is presence of Chevallier de Celleron
and Jos. Barron, and that a copy of the protest now filed
and marked Y was left with the defendant. S'd. D. Bellecoue.
Mr. Roe, attorney for plaintiff, files in court the Essoin
of Chevallier de Celleron, one of the witnesses subpoenaed
in this cause, and prays for further delay to hear the first
witness, and that the record may be left open for further
proof. Continued accordingly to next court day.
Issued subpoena 11th October, 1791, at instance of de
fendant for James May vs. James Mcintosh.

Lyons vs.
L'Enfant.
UNDER TEN
POUNDS. J. B. Frederfck
vs.
Louis Vessenau.
Bellecour vs.
Monforton.
Wm. iSearl
vs.
Pierre Cardinal.

On motion of Mr. Eoe this cause continued for six
weeks. Judgment for two pounds, thirteen shillings and four-
pence, currency, and costs.
Continued for eight days.
The parties appear. Judgment for one pound currency
with costs.
Court adjourned to 13th October, 1791.
Chaeles Smyth, Clerk.
W. Dummee Powell.

Province of
Quebec.
District of Hesse
13 October, 1791.
Durand vs.
Lips.

CouET OF Common Pleas, holden at L'Assomption in
the said District, on Thursday, the 13th day of October,
1791, according to adjournment.
The parties appeared. Continued by plaintiff on
motion. Plaintiff produced Joseph Eevaux, who wag duly
sworn to answer to interrogatories marked C already filed.
Vers le fin d'Octobre dernier Jean Lips a demande au
temoin la permission de se reteri chez lui on cas qu'il perdra
son prouvs avec Durand il seroit oblige de quitte sa terre
a quoi le temoin a consente. Sa
Joseph X Eevaux.
marque.

UPPEE CANADA COUET EECOEDS.

Parties appeared, continued eu delibere on plaintiff's
.attorney moving for judgment.

Groesbeck vs.
Visgar.

117

Parties appear. Continued en delibere.
Mr. Eoe for plaintiffs. Defendant in person. Mr.
Eoe called as evidence in this cause Alexis Labadie, of full
age and not interested, who was duly sworn to declare the
truth. Ques. by plaintiff: S'il a eonnaissance que les de
mandeurs aient seme le bled et quelle quantite sur la terre
actuellement occupe par le defendeur et en quelle terms?
Ans. : Qu'il sait de sa propre' eonnaissance que les
demandeurs ont enseme la terre occupe maintenant par la
defendeur, que iis ont mis vingt cinq minots de semance a
peu pres de ce tems ici de I'annee passee.
Ques. by plaintiff: S'il connoit qui en a fait la recolt?
Ans. : Qu'il sait que ce Mons. McNiff qui a recolte.
Ques. by plaintiff : Avez vous eonnaissance et en quelque
temps les demandeurs en demande permission de Mons.
McNiff de couper ce ble?
Ans. : II sait que Mons. McNiff voulant couper ce meme
ble, les demandeurs lui ont fait defence dissant qu'ils
entende de recolte en meme, que le temoine et Jos. Barron
furent present lorsque cet representation a ete fait a Mons
McNiff, qui leurs faisait eomprendre qu'il ne les entendoit
pas, mais e'etant explique par un interpret, il leurs faisait
dire que ce iis voulent I'empacher de couper son ble, il
falliit lui bailie I'ordennance du Juge ce qu'il repeter lui
meme en bon fraingois.
Ques. by plaintiff: S'il etoit present lorsque les de
mandeurs furent mis dehors de depus la terre actuellement
occupe par la defendeur?
Ans. : Que ce prentems il arrive dans Ic moment que
Mons. McCormick se dispute avoient les Chenes, mais
qu'il n'etoit point temoin qu'il les aveoit chaser hor de la
maison, les butins etant s'entre avant l'arriv6 du temoin.

Hazel vs.
Meldrum & Park.

Pierre, Gabriel,
and Toussaint
Chene vs.
P. McNiff.

Sa
Ale-x. ,\ Labadie.
marque.

Mr. McNiff, being present in Court, moves that his ex
ceptions marked X be filed on record in this cause, which
being granted by the Court the defendant, Pat. McNiff,
is informed that he must find an interpreter himself.
Mr.- Eoe produced as witness in this cause Frangois
Gamelin. who was duly sworn.

118 UPPEE CANADA COUET EECOEDS.
Ques. by plaintiff: S'il a eonnaissance que les de
mandeurs aient seme du ble sur la terre actuellement en
proportion du defendeur, en quelle tems et quelle etoit la
quantite ?
Ans. : Qu'il sait que dans le mois de seprembre de
I'annee dernier, iis ont seme sur la terre, qu'occupe actuelle
ment le defendeur, mais quelle quantite il ne pouvoit dire,
mais que sur la meme quantite de terrain qu'ils ont sem6,
le temoin a coutume de seme vingt quatre ou vingt cinq
minots. Ques. by plaintiff: S'il a eonnaissance qu'est qu'a le
recolte ?
Ans. : Que selon sa. eonnaissance e'etoit Mons. McNiff.
Ques. by plaintiff : Ce, avant que le ble a etoit coupe le
temoin a la requisition d'aucune des parties en a estime la
quantite ?
Ans.: Qu'oui a I'instance de Bellecour Notaire, le
temoin avez Eobert Navarre, le Sieur Godefroy, et Etienne
Nevernois en ont fait I'estimation dans leurs ames et
conscienus a deux cent cinquante minots. FEANgois Gamelin.
Mr. Roe produced as witness Mr. Eobert Navarre, who
was duly sworn.
Ques. by plaintiff: S'il a etoit appele par les de
mandeurs pour estimer une piece du ble sur la terre actuelle
ment occupe par la defendeur, en quelle tems, et quelle
quantite ont il trouver selon leurs estimation?
Ans.: Que vers le frn de Juliet a la requete de Mons.
Chenes il se transporta sur al terre actuellement occupe par
le defendeur, accompanie de Mons. Gamelin, Godfroy, and
Nevernois, et qu'il a estimer la piece a deux cent cinquante
Minot, conjointement avec les autres messieurs.
Egbert Navabee.
Defendant filed subpoenas issued in this Court and
called upon James May as witness, who was duly sworn to
declare the truth.
Ques. by plaintiff: Have you any knowledge that the
defendants or any of them, on or about the month of
August, twelve months past, or at any other time, and
when applied to Mr. Geo. Lyons for leave to sow the
land now occupied by the defendant, and if so, what is
that knowledge? Eelate the whole thereof to the best
of your recollection aud belief.
Ans.: That on about the month of August, twelve
months past, the witnccs, who was employed by Mr.

UPPER CANADA COURT RECORDS. 119
McCormick to dispose of some rum to raise the price of the
farm in question, received a letter from Mr. Lyons, re
quiring the witness' opinion on the propriety of granting
leave to the plaintiffs to sow the said farm, that before
the witness had answered thisdetter Mr. Lyons waited upon
him in person to urge the witness' opinion, which the
witness gave to Mr. Lyons against his exercising any author
ity under a power of attorney from Mr. McCormick re
specting the said farm, which the witness supposed to
be conditional, and knew to be lodged in the hands of Mr.
Roe, to remain there until Mr. Lyons should have effected
the payment of sixty pounds toward the purchase money of
the said farm, which the witness then understood would
entitle Mr. Lyons to a joint interest in it with Mr.
McCormick, and the entire management of it during his
absence; that Mr. Lyons, on a subsequent occasion, in
formed the witness, -which was confirmed to him by Ch's
Chene, the father of the plaintiff, that he had given per
mission td the plaintiffs to cultivate the farm in question,
although he could not raise the said sum of sixty pounds,
and had not then withdrawn from Mr. Roe Mr. McCor-
mick's procuration; that thereupon the witness observed
to Mr. Lyons that he had committed himself in a matter in
which he had no power and that he might draw upon him a
disagreeable discussion with Mr. McCormick; that mean
time after the father of the plaintiffs was dispossessed by
the Sheriff, and Mr. McCormick put into possession,
Charles Chene came to the witness complaining of ilr.
Lyons' conduct in pretending to have full power from Mr.
McCormick, which had turned out to be only conditional,
and after requesting the witness' opinion of the probable
event of the dispute then foreseen respecting the grain,
observed to the witness that at all events if they should
lose their crop they must recover the value from Mr. Lyons,
who had induced them into the error.
Ques. by defendant : Have you at any time heard any of
the actual plaintiffs, and which, observe that if they sus
tained any damage by means of the transaction as before
related, they would have recourse to Mr. Lyons for the
reimbursement of the same ?
Ans.: That in conversation with Pierre Chene, one of
the plaintiffs, respecting this dispute, when the witness'
opinion who should make good to the plaintiffs the ultimate
loss on the transaction was asked, and he not being able
to give a decisive opinion, the plaintiff said to the witness
"It is my opinion we must recover against Mr. Lyons as
being the person who authorized us.to sow."
Ques. by defendant: Have you any knowledge of any
application by Mr. Lyons or either of the plaintiffs to pro-

120 UPPER CANADA COUET RECORDS.

cure Mr. McCormick's consent to and ratification of, their
sowing upon the land, subsequent to his being put into
possession ?
Ans. : The witness has no knowledge of any such appli
cation by the plaintiffs, but -heard Mr. Lyons express his
wish to see ]\Ir. McCormick to procure from him his ap
probation of what Lyons had done under the supposed
power of attorney, and urged the witness to use his influence
with Mr. McCormick to that effect.
Ques. by defendant : Have you knowledge that the grain
in question was the property of Charles Chene and his
family ?
Ans. : The witness understood from Charles Cheue that
the seed in question belonged to him and his family, the
greater part of his own raising, and that he had made an
exertion in hopes of a large crop to enable Mr Lyons to
make good his arrangement with Mr. McCormick for
one-half of the farm for his family.
Ques. by defendant: What did you understand the
family to consist of?
Ans.: Of Charles Chene, his wife, Toussaint, Gabriel -
and Agatlie, and a young boy in the house.
Ques. by defendant: Did you consider Pierre Chene,
one of the plaintiffs, as belonging to the family?
Ans. : Xo, as he was married and lived separate from
his father, and had done so for many years.
Cross-questioned by Mr. Eoe : Do you know if Mr.
McCormick at any time, and when, resided with Charles
Chene and his family?
Ans. : That he knows by having been told so by Mr.
McCormick himself that after his return from Canada last
winter he hired a room in the house then occupied by
Charles Chene upon the farm in question, for which he
was to pay to the said Charles Chene forty shillings per
month. Ques. : Did you at any time during Mr. McCormick's
residence in Chene's house, hear him express himself satis
fied that the Chenes have sowed so much wheat on the
farm ?
Ans. : That at some period of the winter, while Mr.
McCormick resided with the Chenes, the witness heard
him often express himself satisfied that they had a prospect
of so large a crop, as he expected the produce of it should
enable them to pay their half of the purchase money which
Mr. Lyons had agreed for; that at this time the witness
understood that an immediate payment of the difference
between £31 7s. 6d., which the witness had received from
Mr. Tj>-ons in behalf of Mr. McCormick, on account of the

UPPER CANADA COURT RECORDS.

121

purchase inoney and the sixty pounds he had agreed to raise
should be made, and the witness understood from Mr.
McCormick that some words having arisen between him and
the Chenes respecting the delay of such payment, he had
been obliged to quit the house.
Ques. by the Court: What was the price of wheat at
the time the wheat in question was sowed?
Ans. : Thirteen shillings and fourpence, York currency.
James May.
The defendant produced Mr. Jan^es Mclntash, who
was duly sworn as Avitness in this cause.
Q. — Have you any knowledge that the plaintiff or
either of them at any time, and when, last winter declared
that they were ruined by Mr. Lyons' permission to them
to sow the said land, and that if they were not permitted to
reap they would have their recourse upon !Mr. Lyons ?
Ans. : That he never had any conversation with either
of the plaintiffs to the best of his recollection, but that
Charles Chene, the father, and the mother ha^'e often
observed to the witness how much they had been injured by
Mr. Lyons, and that if they did not recover from
McCormick they should look to him (Lyons) for compen
sation. .James McInto.^ii.
The defendant submits to the Court tht.t his principal
voucher, being Mr. McCormick's lease to him of the farm
in question, is already before the Court in a certain cause
lately agitated, and prays that the Clerk may be ordered
to bring up the said lease. Ordered accordingly.
Mr. Roe, for plaintiffs, prays the judgment of the Court. ,
Continued en delibere.

, Continued.
Court adjourned to 20th October, 1791.
W. D. P., J.CP. C. Smyth. Clerk.
CouET OF Common Pleas holden at L'assomption in
the said District on Thursday, the 20th day of October,
1791, according to adjournment.
Present : Wm. Dummer Powell, Esq., First Judge of
said Court.

under ten
POUNDS.
Bellecour vs.
Monforton.

provSnoe of
Quebec.District of Hesse,
20 October, 1791.

Mr. Eoe, of counsel for plaintiff, filed declaration.
Defendant being called and not appearing, Mr. Eoe prayed
default.

James McDonnell
vs.
Charles Poupard,
at. Lafluer.

122

UPPEE CANADA COUET EECOEDS.

The same
vs.
Louis Meloobe.

Durand vs.
Lips.

Mr. Eoe, of counsel for plaintiff, filed declaration and
defendant appearing acknowledged to owe as in the said
declaration it is set forth, whereupon Court considers
that the plaintiff do recover the sum of seventeen pounds,
four shillings and eightpence currency with costs of suit.
Parties appeared. Plaintiff produced Zacharie Cloutier
as witness in this cause, who was duly sworn to certain
interrogatories already filed marked G.

Ans. 1st: Qu'oui.
Witness, C. S.

Sa
Zachaeie X Cloutiee.
marque.

Meldrum & Park
vs.
Louis Campeau.

Meldrum & Park
vs.
Thomas iSm ith.

Continued en delibere by the Court on motion for
judgment by plaintiff.
Sheriff returned writ of fi. fa. issued in this cause
with opposition of Jacques Campeau annexed to the sale
of a certain lot of land seized as belonging to tlie defend
ant. Jacques Campeau appeared in support of his opposi
tion. Mr. Eoe for plaintiffs. Opponent filed Ex. A and on
motion continued to next adjournment for production
of titles, etc.
Mr. Eoe of counsel for plaintiffs. Defendant in per
son. Plaintiff iUed subpoenas D, and produced as wit
ness in this cause Wm. Christie, who was duly sworn
to declare the truth. Who says that on the 5th of
February, 1788, he was clerk to the plaintiffs and de
livered the three items charged, two pounds, twelve shil
lings, in defendant's account under that date to Molly
Crofton on defendant's account; that the plaintiffs were
accustomed to deliver goods to that person on defendant's
account, but whether they were authorized so to do by
the defendant directly or indirectly by paj-ment of articles
so delivered the witness cannot say.
Ques. by plaintiff: Did j'ou at any time, and when,
deliver to the defendant the plaintiff's account contain
ing the three said items of charge, and did he accept or
deny the same?
Ans.: That in April, 1789, he delivered the plaintiff':^
account to the defendant containing the said three item.s
of charge, to which the defendant made no other objection
than to a charge of thirty shillings under the 29th
February, 1788, for articles delivered to Molly Crofton
without order.

UPPER CANADA COURT RECORDS. 123
Cross questioned by defendant: Do you recollect, at
any time the defendant objecting to a charge of a quantity
of iron in plaintiff's account, and what is your know
ledge on the .subject?
Ans. : That he recollects such objection being made,
the settlement thereof being referred by one of the part
ners on account of the absence of the other, he thinks
by Mr. Meldrum, to the return of Mr. Park, but the
original transaction was prior to the witness living with
the plaintiff.
Ques. by defendant: Do you recollect at any time,
and when, the defendant forbid the plaintiffs to deliver
anything on his account without a written order?
Ans. : That he does recollect such directions beinc;
given by the defendant, but cannot say at what period,
but thinks that subsequent to such direction no credit
was given on defendant's account without his order.
William Christie.
Plaintiff produced Jno. Bapte Craiste as witness, who
was duly sworn.
Ques. by defendant: Avez vous regu, et en quell tems
de demandeurs par ordre de Mr. Smith une quantite de
ferment de moulin?
Ans. : Qu'il eonstruisse un moulin a la pienier en 1783
que Mr. Smith devoit lui fournir les ferments que faisoit
Ballar fourgeron, que le temoin se rendant chez Ballar
pour recevoir I'ovrage apris de lui que tout le fer de Mr.
Smith avait ete enlever par les merchands de Fort —
qu'apres le temoin apris de un quellque un que le fer
etait chez Mons. Park a qui le temoin s'addressa pour
le retire, que Mons. Park lui promette qu'il farrait fair
son ferment, et en effet le temoin a son retour de la
pineir le rcQu de Mons. Park, mais qu'il ne scaurai dire
si dans cet occasion Mr. Smith I'addresser a Mons. Park
ou non. Cross questioned by defendant: Quelle eonnaissance
avez vous, que Mr. Smith a vraiment remis au fourgeron
Ballar la quantite de fer necessair pour les ouvrage qu'ils
s'etait oblige de vous procurer?
Ans.: Qu'il y a si longtemps qu'il ne se souvenait plus
de parole mais il sait que ballar la fait eomprendre dans
tems que Mr. Smith lui avoit remis toute la quantite
de fer mais que d'autres persons I'ont enlever pour ses
dettes.
Witness, C. S. J. B. Ceaiste.

124 UPPER CANADA COUET EECOEDS.
Defendant produced Wm. Christie, witness in his de
fence, who was duly sworn.
Ques. by plaintiff: Have you any knowledge that the
jDlaintiff employed the defendant to survey a certain
tract of land at the Pinery? Declare when and generally
your knowledge of the transaction.
Ans. : That in the winter, he thinks of the year 1789,
the plaintiff did employ the defendant, then going up
the river, to survey at the Pinery, and that at desire of
the plaintiff the witness made out a memorandum now
filed marked Z, in order to guide the defendant in the
survey. William Cheistie.
Defendant produced Jno. Baptiste Craiste, who was
duly sworn.
Ques. by plaintiff: Avez vous eonnaissance que les
defendeurs I'annee 1790 ont enlever de la pinier une
.quantite de bois a moi appertenant?
Ans.: Que I'annee 1790 Mons. Park a emporter en
virons douze ou quinze morceau de bois appertenant a
Mons. Smith et le restant de bois le temoin a entendu
dire avoir ete ausi importe par Mons. Park, mais il ne
I'a pas Vll.
Ques. by defendant : Du mois de .Janvier jusqu'a mois
d'avril 1790 etiez vous en prison a la poursuite des de
mandeurs et dans cet temps, avez vous presenter a la
Cour deux Eequet representant votre situation et demand
ant le previlege d'un debiteur?
Ans. : Oui.
Ques. by defendant: Comment avez vous obtenu votre
liberte? Ans. : Qu'il obtenii sa liberte par la vente de ses droits
qu'il pouvoit avoir dans le moulin de la pinier.
Ques. by defendant : Auriez vous consente a telle vente
si autrement vous pouvez obtenir votre liberte ?
Ans. : Que non, sans le plus grands avantage qu'il n'a
regu. Ques. by defendant: Dans rautomn 1790 avant d'etre
emprisone le defendant vous ont t'il propose un ac-
quitance avec cent ponds pour le moulin a la pineier, a
condition que le defendeur leur eedera ses droits?
Ans. : Que les demandeurs lui ont offer de compro-
niettre leur differents, et de I'acquiter, si Mr. Smith voulu,
retirer une action qu'il avait alors ententer centre le
temoin et ceder la vente que le temoin lui avoit fait un
le moulin.

UPPEE CANADA COUET RECORDS. 125
Ques. by defendant: Si les demandeurs n'ont pas offre
a votre femme une presente de I'Indiennes, si Mr. Smith
ne rentre dans le moulin?
Mr. Eoe for the plaintiffs excepts to the above ques
tion as being impertinent to the cause. Overruled by the
Court and the witness directed to answer.
Ans. : Que Mons. Park a promts a sa femme une
presente d'Indienne s'il garder le moulin, mais s'il le
perdit il perdera ausie en dechargeant le temoin de sa
dette. Ques. by defendant : Si les demandeurs vous ont donne
une memoire par ecrit, du bois a la pineier, et si en
meme tems Mr. Park ne vous a pas dit, qu'il s'arrangera
avec le defendeur pour le montant du dit bois?
Ans. : Qui oui. Le memoire file a present marque y.
Ques. by defendant: Si Mons. Park engager au mois
d'avril, 1790, la conducteur des travaux du defendeur
a la pineier, et si en consequence ces dit traveaux ne fus
pas anete?
Ans. : Oui.
Ques. by defendant : Si les engager de Mr. Smith pour
la coupe de bois a la pineier en 1789 an 90, ne fus pas
oblige de desender le bois au Detroit?
Ans. : Oui. J B. Ceaiste.
Defendant" produced Jno. Baptiste EoQout who was
duly sworn.
Ques. by defendant: S'il a vu Toussaint Jasment
faire sa marque a I'engagement file marque X apris lec-
teurs fait?
Ans.: Qu' oui.
Ques. by defendant: S'il a vu Jean Baptiste Craistte
signe I'engagement file marque W?
Ans. : Qu' oui. J. EogouT.
Defendant produced Francois Deruisseau de Bellecour
who .was duly sworn.
Ques. by defendant: If the protest interpellation and
answer contained in Exhibit V now filed were made and
obtained in his presence?
Ans. : Yes. in presence of the witnesses whose names
are subscribed. F. De Bellecoue. ^
Issued subpoena 1st November, 1791, to defendant,
February 3rd. C. Smyth, Clerk.

126

UPPEE CANADA COUET EECOEDS.

On motion of Mr. Smith, with consent of plaintiff's
attorney, cause continued for a fortnight.

Ed'ward Hazel
vs.
Meldrum & Park.

Parties appear. On motion of defendant this cause
continued for three months.

James McDonnel
vs.
Hugh Holmes.

Mr. Eoe for plaintiff'. Judgment for £7. 17s. Id.
currency on written confession filed and proved.

Bellecour vs.
Monforton.

Parties appear. Continued.
Court adjourned to '^th October, 1791.
C. Smyth.
W. D. P., J.CP.

Province of
Quebec.District of Hesse.
27 October, 1791.

Couet of Common Pleas, holden at L'assomption in
the said District on Thursday, the twenty-seventh day of
October, 1791, according to adjournment.

James McDonell
vs.
Chas. Poupard.

Present: The Honourable William Dummer Powell,
Esquire, First Judge of said Court.
Discontinued by plaintiff on motion.

Meldrum & Park
vs.
Louis Campeau,
on the opposition
of Jacques
Campeau.

CAUSES
UNDER TEN
POUNDS.
Bellecour vs.
Monforton.

Province of
Quebec.
Disti'dct of Hesse.
3 Novem-ber, 1791.

Meld'rum & Park
vs.
Thomas Smith.

Durand vs.
Lips.

Parties not appearing; cause continued.

Continued.
Court adjourned to the Judge's Chambers for Thurs
day, 3rd day of November, 1791.

W. D. P.,
J. C. P

Chas. Smyth,
Clerk.

Couet of CoMiiON Pleas, holden at L'assomption in
the said District, on Thursday, the third day of November,
1791, according to adjournment.
Present: The Honourable William Dummer Powell,
Esquire, First Judge of the said Court.
Mr. Eoe appeared and continued cause to next ad
journment. Mr. Eoe appeared; continued en deliber6.

UPPEE CANADA COUET EECORDS.

127

Mr. Roe appeared; cause continued en delibere.
Continued on motion of Mr. Roe.

Mr. Eoe of counsel for plaintiffs moves the Court for
judgment, whereupon it is ordered by the Court, before
it proceeds to judgment definitely, that a report be made
to the Court of the real quantity of grain reaped by the
defendant on the land sowed by the plaintiffs, together
with the expense of harvesting, and that such report
be made on oath by experts to be named by the parties
respectively, two by plaintiffs and two by defendant, and,
in case of difference of opinion, by a fifth, to be ehose^i
by the other four, and if on due proof of service of
this rule on either party it shall appear to the Coui't
that one of the said parties shall refuse to name suc'i
experts in eight days, the Court will proceed to sucli
nomination ex officio.
Cause continued to next adjournment.
Continued on motion to first Court day in April next.

Sheriff returns' Writ of fi. fa. issued in this cause
with return of Nulla bona, and it being suggested by
Mr. Eoe of counsel for the plaintiffs, that the defendant
has goods and chattels in the said District whereof the
said debt and costs may be made and levied. It is
ordered that an alias Writ of Execution do issue com
manding the Sheriff to levy the said debt and costs.
Al. fi. fa. issued 3rd November, 1791. Eeturnable
in May, 1792.

Sub. costs
Writ ....

£1 10-. 0
0 5 0

C. S.

Sheriff returns writ of fi. f-a. issued in this cause,
with the monies levied by virtue thereof, whereupon it is
ordered by the Court, on motion of Mr. Eoe, of counsel
for the plaintiff, that the Sheriff do pay over to plaintiff
the said monies, being twenty-one pounds, sixteen shil
lings and eightpence one farthing, in part satisfaction
of his judgment.
Court adjourned to 10th November inst.
Wm. Dummee Powell, Chas. Smyth,
J. C. P. Clerk.

Groesbeck vs.
Visgar. Meldrum & Park
vs.
Campeau, wn the
opposition of
Jacques Campeau.
P. G. & Toussaint
Ch6nS vs.
Pat McNiff.

UNDER TEN
POUNDS. Bellecour vs.
Monforton. Meldrum* Park
vs.
Louis St. Obien.

McDougaU vs.
Lyons.

128

UPPEE CANADA COUET EECOEDS.

Province of
Quebec. District of Hesse.
10 November,
1791.

Couet op Common Pleas, holden at L'assomption,
in the said District, on Thursday, the 10th day of Nov
ember, 1791, according to adjournment.
Present: The Honourable William Dummer Powell,
Esquire, First Judge of said Court.
The Court met pursuant to adjournment, and further
adjourned to Thursday, the 17th day of November inst.

Wm. Dummer Powell, J. C. P.

Chas. Smyth,
Clerk.

Province of
Quebec. District of Hesse,
17 November, 1791.

P. G. & Toussaint
OhSng vs.
Pat McNiff.

Meldrum & Park
vs.
Thomas Smith.

Couet of Common Pleas, holden at L'assomption in
the said District, on Thursday, the 17th day of November,
1791, according to adjournment.
Present : The Honourable William Dummer Powell,
Esquire, First Judge of said Court.
Mr. Eoe. of counsel for the plaintiffs, files return of
rule made in this cause on the 3rd day of November, inst.
Defendant called; did not appear, but communicated in
writing his receipt of the rule, and refusal to comply
with the same, whereupon Mr. Eoe, for the plaintiffs, pro
ceeded to name Francois Gamelin and Alexis Labedie,
and the Court requests Wm. MeComb, Esq., and James
May to join themselves with the said nominees to enquire
and report on the quantity of grain reaped liy the defend
ant from the ground sowed by the plaintiffs on the farm
leased by the defendant of Arthur JlcCormick and also
on the probable expense of harvesting the same, and
report their opinion on oath to the best of their informa
tion and belief in eight days.
Mr. Eoe, of counsel for plaintiffs. Defendant in
person. Defendant files petition marked L with the order
of first Judge for the appearance of Wm. Park, one of
the plaintiffs in this cause, to answer on oath to certain
interrogations thereunto annexed, whereupon the said
Wm. Park appearing humbly submits to the Court how far
he is bound to answer to said interrogations, inasmuch
as the defendant hath brought forward certain witnesses
to prove the facts stated in his plea, and prays that ho
may be exempted from answering the same, and the
defendant suggests to the Court that he has not brought
up any witnesses to answer to the facts of the said
interrogatories, and prays that the said Wm. Park be
sworn. Ordered accordingly.
Wm. Park, Esquire, one of the plaintiffs in this cause.
was duly sworn to answer certain interrogatories filed
as above.

UPPER CANADA COURT RECORDS. 129
Ans. to first interrogatory: Thomas Sniith, about that
period, lived at or about Mr. Intosh's house, and not
appearing to me to have much to do, I asked him if he
would transcribe a blotter whose leaves were loose into
a new book, which he did; how long he was I cannot
say, as he did not attend regularly, but I suppose a steady
would do the same in five or six days.
Mr. Park objects to answer to the second interrogatory,
as in the terms in which it is couched it would tend
to charge himself with a public offence.
Whereupon the Court ordered that he do not answer
to the same.
Ans. to third interrogatory: In the fall of 1783 I
heard Bellar was making iron work for a saw mill, built
at the pinery by John Baptiste Creste, and at or about
the same period the said Bellar owed large sums to dif
ferent merchants in Detroit, who considering the state
of his affairs,, agreed to take their payments out in work
at prices agreed to, and in proportion to their respective
debts. I was nominated to direct Bellar by the creditors,
and to regulate the same, as well as to receive some old
debts which were owing Bellar and divide them pro
portionally, when received; that the iron work of Creste's
mill was looked upon as a debt of sixty pounds for the
benefit of the creditors, when completed, and yet Bellar
has not iron to finish the same, that upon Mr. Smith's
application to me and a promise to pay the same, I gave
Bellar an order upon Messrs. Sharpe & Wallace for as
much iron as would finish the work, the amount of which
was to be deducted from the sum promised. The iron
work, was, I think, completed, and to the best of my
recollection, was delivered to Creste, but where and at
what time I cannot say.
Ans. to fourth interrogatory: In the year 1788 I
caused some pieces of timber to be taken out of Mr.
Beaubien's yard by Creste's particular desire as his own,
and accounted to him accordingly.
The fifth interrogatory was overruled upon representa
tion of Mr. Park, that it is impertinent to the cause.
Ans. to sixth interrogatory: I never employed Mr.
Smith to survey or fix boundaries either to Brown's land
or Baptiste Druillard's farm, further than he came to
our store and acquainted me he was going to measure
and survey between the mouth of Detroit Eiver and the
River Raison and up that river, and asked if I had any
commands that way. I told him that William Brown
had an Indian deed for land there, and as he would be
measuring the neighbour's farms, I would be glad to
know the width of it and of Baptiste Druillard's farm.
10a

130 UPPER CANADA COURT EECOEDS.

Aus. to seventh interrogatory: In April, 1790, I
carried from the pinery some boards or plank and some
more in the course of that summer, being part of pro
perty sold and delivered to Meldrum & Park by J. B.
Creste, that the quantity of timber specified in the E.x-
hibit by me, was said to be upon the ground, but did
not count it. William Paek.
Defendant called upon AValcer Eoe, Esq., as witness
in this cause, who was duly sworn to declare the truth.
Ques. by defendant: Have you any knowledge and
what of the defendant in the spring of 1790 accounting
with Peter Laughton for tAventy-eight and a quarter cords
of firewood, four feet long, cut on the borders of the
River St. Clair in autumn of 1789 in order to be thrown
on the rafts on their way to Detroit?
Ans. : I do recollect having heard Peter Laughton
say that he had cut some wood on the River St. Clair
for Mr. Smith, the defendant, on account of Wm. Towns,
who was then his servant, but whether the same was to
be carried to Detroit or elsewhere witness knows not,
neither has any knowledge of the quantity.
W. Roe.
Defendant produced as witness in this cause John
Martin, of full age and not interested, who was duly
sworn to declare the truth.
Ques. by defendant: Was the paper now filed and
marked with the letter '' M " purporting to be a deed
of sale of the pinery by Mr. Jno. Baptiste Creste to
Meldrum & Park, executed in your presence, and is the
signature John Martin at the foot of the said deed of
your handwriting, and was the tenor of the same ex
plained to the said Creste in, any language that he could
understand before the execution of the said deed?
Ans. : That the deed now filed was executed in nresence
of the witness, and that the signatare of John Martin is
in the proper handwriting of the witness, that the witness
recollects part of the deed was explained to J. B. Creste
in French and that Mr. Park told him that it was the
same that had been before read to him at the Sheriff's.
Ques. by defendant : Do you recollect any part of the
contents of the deed?
Ans. : Yes. The witness understood that Creste gave
up all his right and title to the pinery, whatever it
might be.
John Martin.

UPPER CANADA COURT RECORDS.

131

Defendant produced Matthew Dalson, who was duly
sworn to declare the truth.
Ques. by defendant: Did you see the defendant sur-
/veying lands in the River St. Clair above and below the
Belle River in January, 1789, or at any other period,
Dalson ?
Ans.: On the 9th of March, 1789, the witness saw the
defendant run the chain from below the Belle Riviere
down to Wm. Thorn's.
Matthew Dalson.
The item in the plaintiff's account under date of 7th
September, 1785, being delivered on defendant's account
by his verbal order, of which the plaintiffs have no evi
dence, they submit the same to the decisive oath of thc
defendant praying that in case he refuses the same the
plaintiff's oath may be taken thereon; and also submit
to the said oath of the defendant the item of credit of
20th January, 1784, which the plaintiff's suggest to have
been occasioned by their breach of the specific agreement
to make up the iron for the mill work on Mr. Smith's
undertaking to pay the labour.
The defendant being duly sworn, answers:
That he recollects that when the iron furnished by
him to Bellar for Creste's mill work was in part wrought up
and withheld from Creste by Meldrum & Park until they
should be paid or secured in the payment of the price
of Bellar's labour, he, the defendant, did wait upon
Meldrum & Park claiming the iron as furnished by him,
and stating that the price of Bellar's labour was to be
deducted in account, but if they, Meldrum & Park, had
a right to the produce of Bellar's labour, and that he
could not get his iron from them in any other way, he
must of necessity pay them for that labour, and thinks
that the three pounds, nine shillings paid by him to
them on the 20th January, 1784, might be on account
thereof.
T. Smith.
_ The defendant files exhibits marked N, 0, P, Q, E,
S, T, U, V, W, X, Y, Z, and the parties having finished
their pleading mutually submit the same to the judgment
of the Court.
Continued by the Court en delibere.
Mr. Roe for plaintiff prayed the judgment of the
Court. Defendant did not appear.
The Court having maturely weighed the declaration
and answers in this cause, as well as the books, papers
and vouchers exhibited by the plaintiff, considers that his

Wm. Groesbeck
vs.
Jacob Visgar,.
Curator to t/he
Estate of Gar.
Teller.

133 UPPER CANADA COURT RECORDS. *
suit be dismissed and that the defendant do recover his
costs of Court to be taxed, and although the judgment
in this case does not fully meet the words of the ordinance
requiring in certain cases that the reasons and grounds
of the judgments of the Courts of Common Pleas should
be assigned of record. The Coilrt considering the large
claim of the plaintiff and the absence of those interested
in the intestate estate, is willing for the satisfaction of
the parties to state concisely, that notwithstanding the
singular favor to plaintiffs by the ordinance admitting
any proofs known to the practice of the laws of England
or France heretofore introduced in the Province of Quebec,
the Court can admit nothing upon trust on the plaintiff's
assertion without some proof, and that the books and
exhibits filed by the plaintiff afford none which can be
deemed legal under any extent of the particular clause
in the ordinance of 1789. First the books from whence
the account is extracted are kept in so irregular a manner,
even by the testimony of the divers persons who swear
to the several entries, as totally to destroy their credit
in. every case, but where the entry is corroborated by
actual proof of the delivery of the articles charged, for
it is sworn that they were made in the Waste Book
occasionally by strangers and passengers on the loose
dictum of the plaintiff, frequently with a retrospect to a
distant period. It is needless to remark the abuse whicli
may be made of a precedent to sustain such sort of testi
mony, but they carry with them innate marks of error
and negligence, which wanted not the age of foreign
evidence to invalidate their testimony. The orders filed
as vouchers have no docket or. mark of entry to direct
to the date in the Waste Book under. which they stand
to the debit of the deceased. How is it possible then to
discriminate and apply a voucher of one date among
many for similar articles to any precise entry? In such
a total absence of legal evidence nothing would follnv
but a non-suit, unless the plaintiff had brought his action
during the life of Teller, in which ease under favor of
the boundless clause, in the late ordinance your defendant
might have been brought forward in some shape to dis
charge himself in foro conscieniio, failing which pre
sumption might have served the plaintiff, but the season
is past and the curatum cannot be applied to upon the
equitable principle that no one shall profit of his own
wrong, and the whole complexion of the suit does not
lead the Court to commiserate the plaintiff, who certainly
if he loses anything must attribute it to his ovm supine
ness and neglect.
Chas. Smyth, CUr^-

UPPER CANADA COURT RECORDS.

133

On motion of opponent, and by consent of the plain-
Court grants main levee of the seizure made on
the land in question, and that the Sheriff be ordered to
direct accordingly.
On motion of Mr. Roe this cause is continued, for
three months.

Meldrum & Park
vs.
Louis Campeau,
the opjiosltion
Jacques Campeau.

Lyons vs.
L'Enfant.

Plaintiff in person. Defendant being called, but did
not appear, whereupon the Court after considering the
plaintiff's demand condemn the defendant to pay to the
plaintiff the sum of three pounds, seven shillings and
sixpence with costs.

causes under
TEN pounds.
Charles Smyth
vs.
Pat McNiff.

Issued execution on 30th November, 1791.
able in two months.

Return-

Debt  £3 7 6
Costs  010 5
£3 17 11
Writ ,  0 1 0
Bailiff  0 4 0

C. S.

Plaintiff in person. Defendant being called, but not
appearing. Court after considering the plaintiff's de
mand, condemn the defendant to pay the sum of sixteen
shillings and sixpence with costs.

Jos. Elam
vs.
Pat McNiff.

Issued execution 30th November, 1791
in two months.

Debt .
Costs
Writ .
Bailiff

r, 1791.

Returnable

£0

16

6

0

10

5

£1

6

11

0

1

0

0

4

0

C. S.

Court adjourned to 24th November, inst.
Chas. Smtth, Clerk.
Court of Common Pleas, holden at L'assomption
in this District, on Thursday, the 24th day of November,
1791, according to adjournment.
Present: The Honoural)le William Dummer Powell,
Esquire, First Judge of the said Court.

Province of
QuefbecDistrict of Hesse.
24 November, 1791.

134

UPPER CANADA COUET EECOEDS.

p. G. and
Toussaint Chene
vs.
Pat McNiff.

Mr. Eoe for plaintiffs appears and filed report of
experts appointed by rule of last Court day marked with
rule and return of service upon defendant annexed.
Cause continued for 8 days.

John Askin
vs.
Etienne Latour,
dit Bellar.

Sheriff returns writ of fi. fa. issued with the moneys
levied, whereupon it is ordered on motion of plaintiff
filed and marked that the Sheriff do pay over to the
plaintiff the said moneys in satisfaction of his judgment

under TEN
POUNDS.
John Laughton
vs.
Harry Pacer.

Judgment for the sum of eight pounds fifteen shil
lings, Halifax currency, with costs.

Issued execution 16th December.
months.

Eeturnable in two

Debt .
Costs
Writ .
Bailiff

£8 15
0 10

0
5

£9 5
0 1
0 4

50
0

AVilliam Dummee Powell, J. C. P.
Court adjourned to 1st December, 1791.
Chas. Smyth, Clerh.

Province ot
Quebec. District of Hesse.
1 December, 1791.

Couet of Common Pleas, holden at L'Assomption, in
the said District on Thursday, the 1st day of December,
1791.

Gervais Hofliesne
vs.
Jean Louis
I..ajeunesse.

Present: The Honourable Wm.
Esquire, first Judge of said Court.

Dummer Powell,

Mr. Eoe, of counsel for plaintiff, filed declaration.
Defendant appears in person, and says that he is not in
debted in manner and form, inasmuch as he hath made
divers payments to plaintiff on account of his said note,
and prays that the same may be enquired of by the Court,
and the plaintiff does so likewise. Cause continued for trial
on next Court day.

James Abbott
vs.
3. Bte. Campeau.

Sheriff returned writ of fi. fa issued in this cause with
the moneys levied, whereupon it is ordered, on motion of
]\Ir. Eoe, that the same be paid over to plaintiff in satis
faction of his said execution.

UPPEE CANADA COUET RECORDS.

13

Sheriff returned writ of fi. fa issued in this cause, with ^°^%l *^''^"**
the moneys levied, whereupon it is ordered, on motion of J. Bte. Marsack,
'Mr. Roe, that the same be paid over to the plaintiff in part
satisfaction of his judgment.

Sheriff returned writ of fi. fa issued in this cause with
the opposition of Joseph Thibault to the payment of
moneys levied and now returned into Court annexed,
whereupon it is ordered on motion of Mr. Roe, of counsel
for opponent, that Guillaume St. Bernard do shew cause
in eight days why the conclusions of the said opposition
should not be granted.

Guillaume St.
Bernard vs.
J. Roucout.

Mr. Roe, of counsel for plaintiffs, states to the Court
that the eight days allowed by the ordinance for the homo
logation of the report of the experts', filed last Court day,
being expired, prays the judgment of the Court, where
upon the Court further continues the cause en delibere.

p. G. and
Toussaint Cb^ne.
vs.
Pat. McNiff.

Mr. Roe, for plaintiffs, appears and prays the judf^--
ment of the Court. Continued by the Court en deliber6.

Meldrum & Park
vs.
Thomas Smith.

Mr. Roe appeared for the defendant. Cause continued p. Durand
John Lipps.

to next adjournment.

Sheriff returned moneys levied by virtue of execution Meid^m&Park
issued in this cause, whereupon it is ordered by the Court Louis campeau.
that the same be paid over to plaintiff in part satisfaction
of his judgment.
Court adjourned to the 8th inst.
Chas. Smyth, Clerk.
Wm. Dummee Powell, J.CP.

Province of
Quebec

Court of Common Pleas, holden at L'Assomption on
Thursday, the 8th day of December, 1791, according to oTstrict of Hesse.
. -" ¦' J J o 8 December, 1791.
adjournment.

Present: The Honourable Wm. Dummer Powell,
Esquire, first Judge of said Court.
Mr. Roe, for plaintiff, filed Exhibit A. Defendant in
person appeared, but failing to produce the proof as by
order of last Court, as was directed, the Court considers
that the plaintiff do recover from the defendant the sum
of sixteen pounds four shillings and twopence currency,
as by his declaration il, is prayed, with costs of suit.

Gervais Hodiesne
vs.
Jean Louis
Lajeunesse.

136

UPPER CANADA COURT RECORDS.

Issued fi. fa 15th November, '92. Ret. 1st Court m
June next.

DebtCosts

Writ

with interest from 24th Nov. last.

£16

4

2

6

8

2

£22

12 5

4

C. Smyth,

Clerk

Guillaume
St. Bernard vs.
J. Roucout, on the
opposition of
Joseph Thibault.

Mr. Roe, for opponent, filed rule of last Court day,
with return of service on plaintiff, who not appearing, the ^
Court examined the titles on which the judgments were
rendered, and not seeing any priority of mortgage, on
motion of Mr. Roe, it is ordered that the moneys levied by
the Sheriff be distributed as follows : —

G. St. Bernard
vs.
J. Roucout.

Jos. Thibault
vs.
J. Roucout.

£5 6 6

Amount levied by Sheriff . .
Amount of costs included
in execution
Amount of costs taxed
To costs on distribution to
opponent

G. St. Bernard's demand. . £52 15 0
Int. thereon from 19 th
May, '91, to Sth Decem
ber following . . . . 1 16 4

£28 19 10

8 19 0

3 5 6
17 11 0
£11 8 10
£54 11 4
Proportion is
£5 4 41/2
Jos. Thibault's demand .. £62 10 0
Int. thereon from 10th
May, '91, to Sth Dec. . . 2 3 91/2
Proportion is
£65 1 91/2
£6 4 5%
£11 8 10
Meldrum & Park
vs.
Paul Canipeau
and wife on the
opposition of
Madame Campeau.
Mr. Roe appeared for plaintiff and stated that on the
26th day of May last this honourable Court were pleased
to order " that the Sheriff proceed to the sale of the prem
ises subject to the demand of the minor children of
UPPER CANADA COURT RECORDS.

137

Guillaume La Forest and Genevieve Fovelle de Bigras to
the amount of two thousand six hundred and thirty-five
livres, upon suggestion of Mr. Roe, for plaintiff, that an
indefinite number of minor claimants stated in the
Sheriff's notification of sale would materially affect the
value of the land, and praying that a further day may be
given to the plaintiff to ascertain the ages of the children
of the said Genevieve Bigras and Guillaume Laforest."
He accordingly now produces extracts from the registers
of baptism of the Parishes of St. Anne and L'Assomption,
certified by Messrs. Friehette and Dufaux, whereby it ap
pears that Prosper and Alexis Laforest are still minors,
whereupon the Court orders that the Sheriff do proceed to
the sale of the premises seized, subject to the claim of the
said minors being one thousand three hundred and seyen-
teen livres ten sols.

The summons in this cause being returned by the
Sheriff duly served and the declaration filed, the defendant
was thrice called and not appearing, out of his default is
granted td the plaintiff. He being an officer of the Court,
the record is thus made and listed by
Wm. Dummee Powell, First Judge CP.
Afr. Roe, of counsel for plaintiff, appears and prays
the judgment of the Court, whereupon the Court having
maturely weighed and examined the declaration, plea,
answers, and several exhibits filed by the parties respec
tively in this cause, it is considered that the plaintiffs do
recover from the defendant, become incidentally plaintiff,
the sum of fifty-five pounds two shillings and sevenpence
halfpenny. New York currency, being thirty-four pounds
nine shillings and one penny halfpenny currency of the
province, with costs of suit, reserving nevertheless to the
said incidental plaintiff such recourse as he may think
proper to recover of the plaintiffs the several items of his
account filed, except such as are to his credit in the
account filed by plaintiffs, and the further sum of six
pounds five shillings allowed by the Court to be ample
compensation for his time and labour in transcribing a
Book of Account as admitted by plaintiffs, and therefore
deducted from their demand.
Athough this cause is not of a nature subject to the
ordinance which requires from the Court below assignment
of the grounds of its judgment, yet for the information of
the parties it is stated that by the laws of France as well
as England compensation is admitted on the claim of the
incidental plaintiff, as well as on a plea of set off, but the
matter compensated must be of a nature as clear as the
llA

Ohas. Smyth, Esq.,
vs.
William CroeSbeck.

Meldrum & Park
vs.
Thos. Smith.

1 :!S

UPPER CANADA COURT RECORDS.

demand. Thus against a debt by account not liquidated
compensation is admitted for nione3s laid out and ex
pended for labour done arid performed and generally for
such clearly established as in conscience the plaintiff ought
not to with-hold payment of, but such objects of compen
sation must be clear, obvious and proved, not to arise ont
of remote causes of litigation, for satisfaction of which
the party must have recourse to his specific action as
afforded by the law and custom.
In the present instance no part of the defendant's
account is of this nature to be compensated, but the items
admitted in the plaintiff's account or subtracted from the
balance l)y the judgment of the Court — all the other ob
jects involve matter foreign to this action of debt, and as
to them the incidental plaintiff, not having adduced the
legal proofs in a legal manner, is considered as non-suited
and left to his proper action or actions.

P. G. and
Tsussaint Chene
vs.
Pat McNiff.
Plaintiffs fyled
return of judg
ment, with de
fendant's refusal
to comply
therewith.31st December, '91.
C.iS.

Mr. Eoe, for plaintiffs, appears and prays judgment,
whereupon the Court having maturely weighed the de
claration, plea and answer, as well as the testimony
adduced and exhibits filed in this cause, it is considered
that the plaintiffs do recover of the defendant the sum of
sixty-two pounds ten shillings currency with costs of suit,
unless within fourteen days the defendant shaT at the
requisition of the plaintiffs deliver to them one hundred
and eighty bushels of wheat, the produce of the seed sewed
by the plaintiffs on the land leased by the defendant from
-Vrthur McCormick.

Pro\'ince of
Quebec.District of Hesse.
1.5 December, 1791.

Issued Execution on
Court in June, 1792.

31.st

De:ember,

'91. Ret. fi

DebtCosts

10 from

£62 17

10 0
18 0

Writ .
Interest ou £62

.£80

8 0
5 0

W.
CS.
D. Powell, J.CP.
first
Court adjourned to the 15th December, '91.
C. Smyth, Clerk.
Couet of Common Pleas, holden at L'Assomption, on
Thursday, the 15th day of December, 1791, according to
adjournment.
UPPER CANADA COURT RECORDS.

L39

Mr. Smyth prays that the defence of the defendant,
who does not appear upon being thrice called, may be
recorded, and for his profit thereof that on Thursday next
he be permitted to prove by witnesses his demand.
Ordered, that this cause be tried on Thursday next.
W. D. Powell, J.CP.
Parties appeared. Defendant states to the Court that
he acknowledges the plaintiff's mare broke her leg on a
bridge within his parish, and that at the time the accident
happened he told the plaintiff not to touch the mare and
that he would see him paid, but this promise was made in
consideration that as sous voyer he could oblige the parties
who were concerned in keeping the said bridge in good
order to reimburse the price, and that it would be an
hardship for him to sustain the damage complained of
until the principals were prosecuted.
Cause continued.

Smyth vs.
Groesbeck.

UNDER TEN
POUNDS..'^ndre Peltier
vs.
Alexis Maison-
ville, Esq.

Court adjourned to 22nd December, 1791.
Chas. Smyth, Clerk.
Wm. Dummee Powell, J.CP.

sse.
22 December, 1791.

Couet op Common Pleas, holden at L'Assomption, Province of
on Thursday, the 22nd day of December, 1791, accord- M^tri^t of He
ing to adjournment.
Present: The Honourable William Dummer Powell,
Esq., first Judge of said Court.

On prayer of plaintiff, Clerk of the Court, this cause
is continued for return of subpoena, the state of the river
preventing the officer from making his return.
W. Dummer Poweil, J.CP
Parties appeared. Defendant acknowledges that the
bridge in question was in bad repair and the plaintiff's
mare broke her leg in consequence. Whereupon the
Court considers that the plaintiff recover from the defen
dant the sum of twelve pounds with costs.
Memo.— It appears that it is possible the Court mis
understood the report of the value of the mare, mistaking
Halifax for New York currency.
W. D. P.
Dismissed.

Chas. Smyth
vs.
Wm. Groesbec.

Andr6 Peltier
vs.
Pierre Reaume,
dt Thimus et
Jos. Bartdaume.

Andr* Peltier
vs.
-Mexlis iMaison-
vllle.

140

UPPER CANADA COURT RECORDS.

Jean TournO dit
Jeannet et Antoine
Meloche Marqull-
liers d'L' Assomp
tion vs.
Etienne Meloche.

Parties appeared. Judgment for the sum of eighteen
shillings et fourpence currency with costs upon confession
of defendant. Court adjourned to 26th January, 1792.

Wm. Dummee Powell, J.CP.

Chas. Smyth, Clerk.

Province of
Quebec District of Hesse.
26 January, 1792.

Couet of Common Pleas, holden at L'Assomption for
the said District, on Thursday, the 26th day of January,
1792, according to adjournment.

Province of Upper
Canada. District of Hesse.
21 August, 1792.

Present: The Honourable William Dummer Powell,
Esq., first Judge of said Court.
Court met and adjourned to the 22nd day of March
next, to which time all proceedings and causes in Court
are continued. Chas. Smyth, Clerk.
W. Dummee Powell, J.CP.
Note. — The minutes of the Court from the 22nd day
of March, 1792, until the 21st of August, 1793, are
missing. Couet of Common Pleas, holden at L'Assomption,
on Tuesday, the 21st day of August, 1792.

UNDER TEN
POUNDS
STEI4LING. WaUiam and David
Robertson,
of Detroit,
MIerchants and
Oo-partners, vs.
Frederick Arnold.

Present: The Honourable William Dummer Powell,
Esquire, first Judge of the said Court.
Mr. Eoe, Attorney for plaintiffs, appeared. Defendant
appeared in person. By the Court. Judgment for the sum
of three pounds, fifteen shillings and twopence, Halifax,
as by Dec'r.

David Robertson,
Attorney to
Thos. McCrae.
vs.
Wm. Searl.

William Robertson
vs.
John Clearwater.

Itevld Robertson,
Attorney to
Thos. McCrae,
vs.
Edward McCarty.

Mr. Roe, for plaintiff, appeared and prayed that the
cause be continued. Ordered.
Mr. Roe for plaintiff.
Defendant appeared in person and acknowledged
the debt as stated in the declaration. Judgment for four
pounds twelve shillings and tenpence Halifax.
Defendant made default, being called three times.
Mr. Roe, for plaintiff, moves the Court to continue this
cause ten days. Ordered accordingly.

UPPER CANADA COURT RECORDS.

141

Defendant being called three times made default. Mr.
Roe appeared and moved that this cause be continued to
the 23rd inst. Ordered accordingly.

David Roibertson,
Attorney to
Thos. McCrae,
vs.
William Munger.

Defendant being called three times made default. Mr.
Eoe, for plaintiff, moved that this cause also stand eon
tinued to the 23rd inst. Ordered accordingly.

The same
vs.
Samuel Hall.

Defendant being called three times did not appear.
Default. Mr. Roe, for plaintiff, moves the continuation
of this cause until the 23rd inst. Ordered.

The same
vs.
Luke Killing.

Defendant, called thrice, did not appear. Default, wiiiiamand
On motion of Mr. Roe, Attorney for plaintiffs, this cause o^via^Robertson
was continued. winiam scari.

Defendant, thrice called, did not appear. Default.
On motion of Mr. Roe, this cause was continued to the
23rd inst

David Rcbertson,
Attorney to
Thos. McCrae,
vs.
Wm. Monforton.-

Mr. Roe appeared for plaintiff.

Defendant appeared in person and made tender of
the sum demanded, without costs, and alleged that he was
always ready to pay the sum, but that it was never ' de-
"manded, nor did he know where his note was.

David Rcbertson,
Attorney to
Thos. McCrae,
vs.
Frederick Arnold.

By the Couet.
nineteen shillings
without costs.

Judgment for the same, five pounds
and four-and-a-half pence, Halifax,

Mr. Roe for plaintiff.
Judgment for the sum of two pounds three shillings The same
and ninepence, on confession of defendant, with the costs. Jno. Clearwater.

Defendant, being called three times, made default. On
motion of Mr. Roe, this cause was continued to the 23rd
inst.

The same
va
Ebenezer Loveless.

Mr. Roe for plaintiff. Judgment for the sum of one
pounds seven shillings and sixpence, Halifax, on confes
sion of defendant with costs.

Sarah Ainse
vs.
Jno. Clearwater.

The following causes, no returns being made upon the wimam and
., , ., . T , i- 1. ¦»«¦ T» J- David Robertson
writ of summons, it is ordered, on motion ot Mr. Roe tor vs.
plaintiffs, that the returns of the several writs be extended Dimii! defendant.
to Saturday, the 25th inst.

Wm. Dummeh Powell, J.CP.

142

UPPER CANADA COUET RECORDS.

The Same vs. J. B. Parre, defendant.
The Same vs. Julien Tavernier.
The Same vs. Pierre L'Hyvernois.
Wm. Eobertson vs. Louis Bourdeginon.
William Robertson vs. Francois Billiet.
David Robertson vs. Harry Facer.
The Same vs. G. Hodiesne.
The Same vs. Joseph Roe.
Wm. Christie, plaintiff, vs. Pierre Cera dt. Coquillard.
Sarah Aisne vs. Fran. Latour.
The Same vs. Jordan Avery.
Sarah Ainse vs. J. Bpte. Campeau.
James McDonell vs. Alexis Cera dt. Coquillard.
James McDonell vs. John Miller.

Court adjourned to to-morrow.

Chas. Smyth, Clerk.

Province of Upper
Canada. District of Hesse.
28 August, 1791.

William and David
Robertson, jf Detroit,
Merchants and
Jo- partners,
p.aintifEs, vs.
Isidore Chene. of
the same place.
Gentleman, defendant.
Peter Clark, late
of Detroit, but
now of Kingston,
Esq.. plaintiff,
vs.
Jean Bte.
Oampeau, of Gross
Point, Gentleman.
defendant.

Couet of Common Pleas, holden at L'Assomption,
on Wednesday, the 22nd day of August, according to
adjournment. Present: The Honourable Wm. Dummer Powell,
Esquire, First Judge.
Mr. Roe, for plaintiffs, appeared and filed declaration.
Defendant being thrice called and not appearing, on
motion of Mr. Roe a default is recorded against
defendant.

Mr. Roe for plaintiffs appeared and filed declaration.
Defendant being thrice called and not appearing, de
fault is recorded against defendant on motion of Mr. Eoe.
Court adjourned till to-morrow at 11 o'clock.
Chas. Smyth, CMc.

Province of Upper
Canada. District of Hesse.
23 August, 1792.

CouET OF Common Pleas, holden at L'Assomption,
on Wednesday, the 23rd day of August, 1792, according to
adjournment. Present: The Honourable William Dummer Powell,
Esquire, First Judge.

Chas. Bellair
vs.
Andre Derome dit
Decarreaux.

No Return. Dismissed.

David Robertson,
Attorney, vs.
William Munger.

Judgment for the sum of one pound ten shillings and
elevenpence halfpenny, Halifax currency, with costs.

UPPER CANADA COURT RECORDS.

143

Judgment for the sum of fifteen shillings, Halifax, on 5?^c'omey ''*" '^°"'
confession of defendant, with costs.

Attorney, vs.
Samuel Hall.

Samuel Hall being sworn to declare the truth in this
cause says that the defendant delivered him the copy of
the summons now filed in Court, and acknowledged the
debt demanded and desired this witness to appear in Court
and confess judgment.
Judgment for the sum of £2 10s. lid., Halifax cur
rency, with costs.

Same plaintiff
vs.
Lulce Killing,
defendant.

Defendant did not appear.
Plaintiff filed defendant's two notes, which were
proved by the testimony of Wm. Duggan.
Judgment for the sum of eight pounds nine shillings
and twopence, with costs.

The same
vs.
William.Monforton.

Judgment for the sum of five pounds six shillings,
Halifax currency, with costs, on testimony of Henry
Botsford.
W. Dummee Powell, J.CP.
Court adjourned, to-morrow at 11 o'clock.
Chas. Smyth, Clerk.
Couet of Common Pleas, holden at L'Assomption,
on Friday, the 24th day of August, 1792, pursuant to
adjournment. Present: The Honourable William Dummer Pow. U,
Esquire, First Judge.
Court adjourned until to-morrow at eleven o'clock,
there being no business before the Court for this day.
Chas. Smyth, Clerk.
Wm. Dummee Powell, J.CP.
Couet of Common Pleas, holden at L'Assomption,
on Saturday, the 25th day of August, pursuant to ad
journment. Present: The Honourable William Dummer Powell,
Esquire, First Judge.
Defendant, being thrice called and not appearing,
default. Plaintiff appeared in person, and being sworn to
testify the truth says that the amount now produced and
filed in Court is just and true.
Whereupon the Court considers that the defendant pay
to the plaintiff the said sum of one pound five shillings,
with costs of suit, as by declaration. It is demanded.

The same
vs.
Ebenezer Loveless.

District of Hesse.
24 August, 1792.

Province of Upper
Canada. District of Hesse.
25 August, 1792.

C^USEiS UNDER
TEN POUNDS
STERLING. Wm. Hands
vs.
J. Bpt. Laberdy.

144

UPPER CANADA COURT RECORDS.

John Askin, Jun.,
plaintiff, vs.
J. Bpte. San-
cralnte.

Mr. Roe, attorney for plaintiff, appeared and filed
declaration. Defendant being thrice called and not appearing, Mr.
Roe moves for default. Ordered.

Schieffelin &
Askin,
plaintiffs, vs.
J. Bte. San-
cralnte, defendant.

Mr. Roe, attorney for the plaintiffs, filed declaration.
Defendant being thrice called and not appearing, on
motion of Mr. Roe default is ordered against the de
fendant.

Wm. (Mionf orton
vs.
Jos. Pernier.

Defendant appeared in person and for cause why he
should not be condemned to pay the sum of the note, now
filed, says that he is a layman and unlettered, that when
he made his mark to the said promissory note it was not
read or explained to him, and that he had no value for the
same. Defendant replies that the said note was read and
explained to him in presence of the subscribing witness,
and that there is evidence thereof by the payments en
dorsed on the said note, which payment the defendant
acknowledges. Cause continued en d61ib4re.

Wm. Monforton,
plaintiff, vs.
Fran. LePlne,
dt Berar.

Defendant appeared in person, and being duly sworn
to testify the truth says that he never received sums but
at two different times from the plaintiff and acknowl
edged in part the plaintiffs account. Court considered
that he be condemned to pay the sum of fifty-four livres
five sols, with costs of suit.

The same plaintiff
va
J. Bte. Fagnon,
defendant.

Continued on consent of plaintiff until next adjourn
ment, the plaintiff being lame and unable to attend the
Court.

James McDonell,
plaintiff, va
John Miller,
defendant.

Defendant being thrice called and not appearing,
default. Mr. Roe, for plaintiff, produced a witness in this
cause, who being duly sworn to declare the truth says he
was present when plaintiff presented the account now filed,
who paid him something on account and promised to pay
the balance at a future time. Judgment for the sum of
£2 4s. lid. with costs.

The same
VB.
Alexia Cera dt.
Coquillard, defendiant.

Hugh Heward, being sworn to declare the truth in this
cause, says that the defendant acknowledged the debt and
at the same time delivered him copy of the summons
authorising him to appear in Court and confess judgment
Judgment for the sum of four pounds thirteen shU
lings and three halfpence, Halifax, with costs.

UPPER CANADA COURT RECORDS.

145

Defendant thrice called but did not appear.
Mr. Roe, for the plaintiff, filed promissory note and
produced Wm. Duggan, who being duly sworn saya he
saw the defendant make his mark to the said note after
it was read to him.
Judgment for the sum of one pound seventeen shil
lings and sixpence, Halifax, with costs.

Sarah Ainse,
paaintiff, vs.
Fran. Latour,
defendant.

Defendant, thrice called, did not appear.
Mr. Roe, for plaintiffj filed promissory note and pro
duced William Duggan, who being duly sworn says he was
present and saw the defendant subscribe his name to
the said note. Judgment for two pounds eighteen shil
lings and fourpence, Halifax, with costs.

The same plaintiff
vs.
Jordan Avery.

Defendant, "thrice called, did not appear.
Mr. Roe filed defendant's promissory note and pro
duced William Duggan, who being sworn, says he
was present and saw the defendant subscribe his name to
the said note.
Judgment for two pounds nineteen shillings and nine-
pence, Halifax, with costs.
Pd. Execution 13th August, 1793, note two months.
Debt  £2 19 9
Costs  1 9
Writ  ..-  1 0
£4 16
Bailiff  4 0

The same plaintiff
vs.
J. Bte. Campeau.

Defendant being called and not appearing. Default.
Mr. Roe produced Wm. Duggan„ who being duly
sworn, says that the defendant acknowledged the debt
demanded in his presence to be due for three quarters rent
of a house from Mr. McCrae.
Judgment for the sum of nine pounds seven shillings
and sixpence, Halifax, with costs.
Defendant being called and not appearing. Default.
Mr. Roe, for plaintiffs, produced Charles Moran, who
being duly sworn declares that he was present and saw
the defendant subscribe his mark to his promissory note
now filed after it was read and explained.
Judgment for the sum of three pounds seventeen shil
lings and sixpence, Halifax, with costs, including five
shillings for the vritness.

David Robertson,
Attorney to
Thoa McCJrae,
plaintiff, vs.
Jos. Roe,
defendant.

Wm. and David
Robertson vs.
Ignaoe Tuat,
dt. Duval.

146

UPPER CANADA COURT RECORDS.

Wm. and David
Robertson
vs.
J. Bte. Parre,
defendant.

Defendant appears in person and acknowledged the sum
demanded by the declaration.
Judgment for the sum of four pounds eight shillings
and ninepence, with costs, including five shillings to wit
ness who was present in Court on subpoena.

David Robertson,
Attorney to
Thos. McCrae,
plaintiff, vs.
Gervais Hodiesne,
defendant.

Wm. Robertson,
Plaintiff, vs.
Louis Bour
deginon.

Defendant appeared in person.
Judgment on confession of defendant for the sum of
three pounds seven shillings and ninepence, Halifax, with
costs, including five shillings to a witness who was present
in Court on subpoena.
Judgment on confession of defendant for the sum of
four pounds and twopence halfpenny, Halifax, with costs.

The same plaintiff
vs.
Fran. Billiet,
defendant.

Judgment on confession of defendant for the sum of
two pounds six shillings and eightpence halfpenny, with
costs of suit.

Wm. Christie,
plaintiff, vs.
Pierre Cera dt.
Coquillard.

Wm. and David
Robertson vs.
Julien Tavernols.

David Robertson,
Attorney to
Thos. McCrae,
plaintiff, vs.
Harry Pacer,
defendant.

Defendant appeared in person and acknowledged the
promissory note now filed, but pleads a set-off against the
said note of nine pounds thirteen shillings and ninepence,
Halifax, not endorsed thereon.
Cause continued until next adjournment.
Mr. Heward appeared, ahd being sworn to testify the
truth says that the defendant acknowledged the demand
to be just and true in his presence.
Judgment for the sum of eight shillings and eight-
pence, Halifax, with costs.
Defendant being thrice called and not appearing.
Default. Mr. Roe for plaintiff produced William Duggan, who
being duly sworn to testify the truth in this cause, de
clares that the name of Harry Facer, subscribed to a prom
issory note now filed in Court, is to the best of his knowl
edge and belief the proper handwriting of the said Harry
Facer, that he is acquainted with the handwriting of
Wm. Patterson, and that the subscription "Wm. Patter
son," as witness to the said note is of the proper handwrit
ing of the said witness, and that he is out of the jurisdic
tion of this Court.
Judgment for the sum of three pounds three shillings
and fivepence, Halifax, with costs of tsuit.

UPPER CANADA COURT RECORDS.

147

Court adjourned until Monday next at 11 o'clock.
Chas. Smyth, Clerk.
Wm. Dummer Powell, JXJ.P.

Court of Common Pleas, holden at L'Assomption,
this Monday, twenty-seventh of August, 1792, pursuing to
adjournment. Present: William Dummer Powell, Esquire, First
Judge of the said Court.

District of Hesse.
27 August, 1792.

WiUiam Monforton, Gentleman, in the absence of
Charles Smyth, the Clerk of the said Court, being sworn
fourth of July to perform the duty of Clerk depute for
this term before
Wm. Dummee Powell, J.CP
Mr. Roe, for the plaintiff, filed declaration, and the de
fendant being thrice called and not appearing, default was
rendered against him.
Mr. Roe, for the plaintiff, filed declaration, and the
defendant appears in his proper person.
The declaration being read, the defendant for answer
pleads verbally that about the time mentioned in the said
declaration he, the defendant, being commanded by a
superior officer, himself being a mate of one of his
Majesty's vessels at Detroit, to receive an anker said to be
the King's, which Mr. Thomas Reynolds, assistant commis
sary at Detroit, would show to him. he. the defendant.
with the party of seamen went to a courtyard in Detroit
which he since learned belonged to ^Ir. May's house, and
that from thence he took away an iron anker as described
in the said declaration. The said Thomas Eeynolds
pointed out to the defendant as the anker he was sent for,
that there was no opposition made to his taking the anker,
which the defendant carried to the King's yard, where he
left it in charge of naval store-keeper.
The Court ordered the plaintiff to prove his damages
on Wednesday next.
The defendant being thrice called and not appearing
to sustain the set-off pleaded on admission of his note for
balance of which this suit was brought, it is considered
by the Court that the defendant pay to the plaintiff the
sum of nine pounds one and, tenpence. New York currency,
equal to five pounds thirteen shillings and sevenpence, one
halfpenny currency of the Province, with costs.

\\'iUiam Macomb
vs.
WiUiam Gix>sbeck.

James May
vs.
John WiUiams.
J. CM.

WiUiam Ohristy
vs.
Pierre Cara, de
Coquillard.

148

UPPEE CANADA COUET RECORDS.

Pierre Chene
vs.
Patrick McNiff.

Toussain Chene
vs.
Patrick McNiff.

WUliam Hands
vs.
John Bte.
Oampeau.

Distnlct of Kesse.
28 August, 1792.

District of Hesse.
1:9 August, 1792.

Paid ex. 13th August, 1793.
Debt  £5 13 ly^
Costs  15 8
Ex'n  1 0
£6 10 31/2
Bailiff  4 0
Note in two months.
The defendant being thrice called and not appearing
his default is recorded, and it is ordered that this cause
come on to be heard on Wednesday next.
The defendant being thrice called and not appearing,
his default his recorded, and it is ordered that this cause
come on to be heard on Wednesday next.
Mr. Roe, for the plaintiff, filed sheriff's return of
nulla bona on writ of fieri facias issued the twentieth day
of October last, and prays that inasmuch as the defendant
has property within the said Sheriff's jurisdiction that a
writ and alias of fieri facias be awarded against him. The
Court ordered the same accordingly.
Issued ahf.fa. 16th July, 1793. Note in six months.
Debt  £20 5 10
Costs  6 8 2
£26 14 0
Sub-costs   13 6
Writ  5 0
with interest on £20 5s. lOd. from 5th of April, 1786,
until paid.
Chas. Smyth.
Adjourned to to-morrow at 11 o'clock before noon.
William Monforton, Aeting Clerk.
William Dummee Powell, J.CJP.
Couet of Common Pleas, held at L'Assomption, in
the District of Hesse, this twenty-eighth day of August,
according to the adjournment.
Present: William Dummer PoweU, Esquire, First
Judge. The Court stands adjourned untU to-morrow, the
twenty-ninth instant, at 11 o'clock before noon.
Wm. Dummer Powell, J.CP.
Couet of Common Pleas, held at L'Assomption, this
Wednesday, twenty-ninth of August, 1792, pursuing to
adjournment.

. UPPER CANADA COURT RECORDS.
Present: William Dummer Powell, first Judge of
the said Court.
Continued at the prayer of the plaintiff until to
morrow upon the suggestion that the witnesses could not
cross the river.
Continued for the same reason until to-morrow.
Mr. Wm. Monforton being duly sworn declared that
^^ he saw the defendant subscribe the bond and obligation
now filed in this cause bearing date the 16th Sept., 1786.
William Monforton.
Judgment for the sum of nineteen pounds eleven shil
lings and one penny, Halifax currency, with the interest
on the principal sum of twenty-one pounds ^irteen shil
lings. New York currency, from the twentieth of August
until paid, and cost of suit.
Continued by consent of the parties until to-morrow.
Continued by consent of the parties until to-morrow.
William Monfoeton, Acting Clerk.
William Dummee Powell-
Couet of Common Pleas, holding at L'Assomption.
this Tuesday, thirtieth day of August, 1792.
Present: William Dummer Powell, first Judge of the
said Court.
In the absence of Charles Smyth, Clerk, occasioned by
indisposition, William Monforton, gentleman, was sworn
faithfully to perform the function of Clerk Deputy for
this term. W.D.P., F.J.CT.
Judgment for the sum of eleven pounds eight shillings
and tenpence with costs.
Issued fi.-fa. 15th Nov., '92. Ret. 1st Court in June
next. Debt  £11 8 10
Costs  6 12 6
£18 1 2
W:rit  5 0
With interest from 20th August, '92. C. Smyth, Clerk.

149

WiUiam and. David
Robertson vs.
Isidore Chene.

James May
vs.
John Williams.
Peter Clerk
vs.
John Dte.
Oampeau.Sworn in Court.
W.D.P.

Toussaint Chene
vs.
Patrick IMcNUff.
Pierre Chene
vs.
Patrick MicMff.

District of Hesse.
30 August, 1792.

William and David
Robertson vs.
Isidore Chene.

150 UPPER CANADA COUET EECOEDS.
James May Fraucois Golin ayant prete serment dit que dans le
John Williams. mois d'avril, 1791, etant au service de Mr. James May
il aide a tircr de la riviere un ancre pesant a peupr^s
au mieux de sa eonnaissance trois cent trente Livres
qu'il a aide a placer dans la cour de Mr. May d'ou il a
ete tire par le defendeur a ce qu'il a oui dire a son bour
geois que dans ce temps la le demandeur n'y avoit pas
d'autre ancre. sa
Francois X Golin.
marque.
Hugh Heward being sworn says he has knowledge that
the usual price of iron wrott into ankor is at Detroit four
shillings York currency per pound, and that he has knowl
edge that in cases where ankors are lent it is being usual
stipulate for payment of three shillings per pound if lost
or not returned.
Hugh Hewaed.
Issued fi.fa. loth March, '93, ret. first Court in Sept.
next. Debt  £20 0 0
Costs  6 8 2
£26 8 2
Writ  5 0
Int. from 30th Aug. last.
C. Smyth.
This action is in the nature of an action of trespass
in the English jurisprudence, with this difference, that in
that action damages only are recovered. In this the
laws of Quebec admit the alternative on one suit. Both cover
equity and resist the pretention of any subject to become
a judge in his own house. The laws of Quebec, founded on
those of Eome, resist such an idea so strongly that the
question of right cannot be heard until the voye le fait
act of the party or natural trespass be fully repaired, by
putting things in statu quo or subjecting the defendant
to proportionate fine ne vi juris quo natu quum de jure
Domini sine possessionis, and the thing is not exempt from
this rule in the present instance. The fact is admitted
the right of property and possession is not draversed. The
Court has nothing to do but pronounce the judgment of
law, which if the plaintiff had so required would be simply
the restoration of the anker to the place it was taken from,
but as the pleadings stand the Court considers that the de
fendant do in fourteen days restore the anker to the plain-

UPPEE CANADA COUET EECOEDS.

151

tiff, or, failing so to do, do pay to the plaintiff his damage
to the amount of twenty pounds, Halifax currency, with
the costs.

Judgment for four pounds five shillings and sixpence.
New York Currency, with costs.

Toussaint Chene
vs.
Patrick McNiff.

Judgment for three pounds fifteen shillings and six
pence, Halifax currency, with CQ§ts.
William Monforton, Acting Clerk.
Wm. Dummee Powell, J.CP-

Pierre Chene
vs.
Patrick McNiff.

Couet of Common Pleas, holden at L'Assomption,
for this District, District of Hesse, this thirteenth day of
August, by adjournment.

District of Hesse.
30 August, 1792.

Present: William Dummer Powell, first Judge.
William Monforton swore faithfully to perform the
functions of Clerk depute in the absence of Charles Smyth,
indisposed. W. D. P.

Couet of Common Pleas, holden at L'Assomption,
this Friday, 31st day of August, 1792.
Present: WiUiam Dummer Powell, first Judge of the
said Court.

District of Hesse.
31 August, 1792.

The parties appearing, the cause is continued by
consent. William Monforton, Acting Clerk.

James Turner
vs.
James May,

The Court having received the testimony of Joseph
Pouget as to the subscription of the note which proves the
agent of the defendant, the Court considers that the plain
tiff do recover of the defendant the sum of ten pounds,
Quebec currency, with costs of suit.

Wm. Monforton,
plaintiff, vs.
Jean Bpte.
FaSneaul,defendant.

Judgment on his note confessed for nine pounds seven
shillings and eightpence, currency of the Province, with
costs.
W. D. Powell.
Adjourned to Saturday, li o'clock.

William Monforton vs.
Joseph Perrler dit
Vad'boncouer.

Court of Common Pleas, holden this first of Sep
tember. Present: William Dummer PoweU, first Judge of the
said Court.
William Monforton sworn faithfuUy to perform the
functions of Clerk Depute pro Jure vice.
W. D. P.

District of Hesse.
1 September, 1792.

162

UPPER CANADA COURT RECORDS.

William and David
Robertson vs.
Edward 'McOarty

John Askin,
Senior, vs.
Jean ©pte.
Sanscralnte.

Upon the note bearing date the twenty-first August,
1790, now filed and proved by WiUiam Duggan, the Court
considers that the plaintiff do recover from the defendant
the sum of two pounds eight shillings and one penny half
penny, Halifax currency, with costs.
The defendant being called and not appearing, the
plaintiff prays that his default may be recorded, and for
his profit therein suggesting to the Court that the de
fendant was an Indian trader in the service of the plaintifP,
and being by him intrusted with merchandise for traffic
did convert to his own use sundry articles as per accoynt
filed, the several items of which the defendant acknowl
edged to the plaintiff at divers times and required of him
to charge the amount thereof to his debit, by means
whereof the plaintiff is utterly deprived of any legal testi
mony to entitle him to his just advantage from the default
of the defendant to appear to answer this suit, but by
referring his said demand to the decisive oath of the
defendant agreeable to the law and usage of the custom of
Paris, prays that a writ be made on the defendant to
appear in his proper person before this Court on Tuesday,
the fourth inst., at nine of the clock before noon, to purge
himself by his decisive oath from the demand of the
plaintiff, failing which the said ^account filed shall be taken
and held to be confessed and acknowledged.
Court granted and ordered that the same be served on
the person of defendant.

Shieffeling and
Askin vs.
Jean Bpte. Sans
cralnte.

The defendant, being thrice caUed and not ap
pearing, the plaintiffs pray his default may be recorded
and for their profit, therein suggesting to the Court that
the defendant was an Indian trader in the service of the
plaintiffs, and being by them intrusted with merchandise
for traffic, did convert to his own use sundry articles as
per account filed, the several items of which the defendant
acknowledged to the plaintiffs at divers times and required
of them to charge the amount thereof to his debit, by
means whereof the plaintiffs are utterly deprived of any
legal testimony to entitle them to their just advantage
from the default of the defendant to appear to answer this
suit, but by referring their said demand to the decisive
oath of the defendant agreeable to the law and usage of the
custom of Paris, pray that a writ be made on the defen
dant to appear in his proper person before this Court.
Tuesday, the fourth inst., at nine of the clock before noon.
to purge himself by his decisive oath from the demand of
the plaintiffs, failing which the said account filed shall be
taken and held to be confessed and acknowledged.

UPPER CANADA COURT RECORDS.

153

Court grant and order that the same be served on the
person of the defendant.
Adjourned to 3rd day of September.
William Monforton, Acting Clerk.

Court of Common Pleas, held at L'Assomption, in
this District, this third day of September, 1792.
Present: William Dummer Powell, first Judge of said
Court.

District of Hesse.
3 September, 1792.

Mr. Roe, for the plaintiff, filed return of fieri facias,
the defendant being thrice called and not appearing, it is
ordered that a verdict of fieri facias do issue for satis
faction, so being of record, together with the costs accru
ing on the present application.

George Leith and
William Thorn.

Action dismissed.
The defendant being thrice called and not appearing
the default is recorded.

James Turner and
James May.
William Macomb
and WUliam
Grossbeck.

Adjourned for to-morrow at nine of the clock.
Court of Common Pleas, held at L'Assomption, in Province of
this District, this fourth day of September. District of Hesse.
Present: William Dummer Powell, first Judge of said *. September, 1792.
Court.

The defendant being thrice called and not appearing,
agreeable to the return of the account now filed and proved
to have been served upon him, this cause is eontinued to
to-morrow. William Monforton, Acting Clerk.
The same rule.
Adjourned for to-morrow.
Court of Common Pleas, held at L'Assomption, in
this District, this Sth of September, 1792.
Present: William Dummer Powell, first Judge of said
Court.

JonathanShieffeling and
John Askin, Jr.,
vs.
Jean Bte. Sans
cralnte.

John Askin,
Junior, va
Jean Bte. Sans
cralnte.

District of Hesse.
5 September, 1792.

Louis Geni^z ayant prete serment sur les St. Evangilles
declare qu'il ce trouva dans la maison de Mr. Jean Askin
avec le defendeur Jean Bapt. Sancrainte et Mr. Roe, e'avo-
eas, qui presenta au dit Sancrainte deux comptes, avec
les defendeur sexpliquant que cetoit les comptes de Mr.

John Askin,
Junior, va
Jean Bte. Sans
cralnte.

151

UPPER CANADA COURT RECORDS.

Jean Askin et de la Societe de Jean Askin et Shiefeling
que Mr. Eoe en presence du dit temoin en fit la lecture
article par article et demanda au defendeur s'il y trouvoit
quelque erreur il repondit que non excepte I'omission d'une
meule qu'il disoit avoir fourni que la dessus Mr. Roe lui
dit qu'il f allait passer de I'autre bord pour reconnaitre les
dits comptes devans la Cour ce que le def'dr. refusa
disant pour raison pour quoi voules vous que j'y aille vu
que je ne vie pas ce que je dois. Louis Geniez.
Mr. Roe, being sworn, says that the account filed in
Court upon which the declaration in this cause is grounded
is the only account which the witness presented to the
defendant from John Askin, Junior, in presence of Louis
Genie. 1 W. EoE.

Shieffeling and
Askin vs.
Jean Bte. San
crainte.

Judgment for the amount of twenty-eight pounds
nineteen shillings and eightpence one halfpenny, Halifax
currency, with costs.
Louis Geniez ayant prete serment sur les Sts. Evan
gilles declare qu'il se trouva dans la maison de M. Jean
Askin avec le defendeur Jean Bapt. Sancraint et Mr.
Eoe e'avoeat qui presenta au dit Jean B't. Sancraint deux
compts avec le defendeur sexpliquant que cetoit le-: compts
de Mr. Jean Askin et de la societe de Jean Askin
et Shiefiing que Mr. Eoe en presence du dit temoin en
fit la lecture article par article et demanda au de
fendeur s'il y trouvoit, quelque erreur il repondit
que non excepte I'omission d'une meule qu'il dis-
soit avoir fourni que la dessus Mr. Roe lui dit qu'fi
falloit passer de lautre bord pour reconnaitre les dits
compts devant la cour ce que le def'dr. refuse disant
pour raison pour quoi voules vous que j'y aille ^Ti que je
ne nie pas Ce je dois. Louis Geniez.
Mr. Roe, being sworn, says that the account filed in
Court upon which the ¦ declaration in this cause is
grounded is the only account which the witness has pre
sented to the defendant from the plaintiffs in presence of
Louis Genie. W. Roe.
Judgment for the sum of seventy-nine pounds sixteen
shillings and one penny, equal to forty-nine pounds seven
teen shillings and sixpence halfpenny of lawful money of

UPPER CANADA COURT EECOEDS.

155

the late Province of Quebec, with interest and costs of
suit. 9
William Monforton, Acting Clerk.
Note: The Minutes of the Court from the 5th Sep
tember, 1792, to the 12th of Septeniber, 1793, are missing.

SEPTEMBEE TEEM.
33rd Geo. III.

Court of Common Pleas, holden at the house of
Alexis Maisonville, Esq., in the Parish of L'Assomption,
in the Western District and Province of Upper Canada,
this twelfth day of September, in the year of our Lord
one thousand seven hundred and ninety-three.

WESTERNdistrict. 12 September, 1793.

Present: William Dummer PoweU,
said Court.

first Judge of

Read the Commission of the first Judge with the third
clause of the third chapter of the twenty-ninth of George
the Third, and the fourth and fifth clauses of the eighth
chapter of the thirty-second George the Third.
Opened the Court.

Mr. Roe, attorney for the plaintiffs, filed the declara
tion and summons returned by the Sheriff in this cause,
when the defendant being thrice called and not appearing
it is ordered that his default be recorded accordingly.

Shleffelin aud
Askin vs.
Joseph Guidet.

Mr. Roe, attorney for the plaintiff, filed the declara
tion and summons returned by the Sheriff in this cause,
when the defendant being thrice called and not appearing
d is ordered that his default be recorded accordingly.

Joilm McGregor
vs.
Francois dit
Prosper Tlbau-t.

Mr. Roe filed the declaration and summon? returned
by the Sheriff in this cause and the defendant appears in
person and confesses the debt and the plaintiff's demand
is just, upon which voluntary confession it is considered
that the plaintiff do recover from the defendant the said
sum, being three pounds sixteen shillings and threepence,
current money of the Province, with costs.

John AsUin,
Junior, Vs.
Jacob Young.

Mr. Roe, attorney for the plaintiff, filed the 'declara
tion and summons returned by the Sheriff in this cause,
when the defendant being thrice called and not appearing
it is ordered that his default be recorded accordingly.

John McGi-egor
vs.
James Urquart.

156

UPPER CANADA COURT RECORDS.

George Meldrum
and Park
vs.
George Johns.

Shieffeling &
Askin vs.
Jean Baptiste
Sanscrainte.

William Macomb
vs.
William Groesbeck.

Mr. Roe, attorney for the plaintiffs, filed the declara
tion and summons returned by the Sheriff on this cause,
when the defendant being thrice called and not appearing
it is ordered his default be recorded accordingly.
The Sheriff returned a writ of fieri facias issued in this
cause, with the opposition of Chas. Chene annexed. Mr.
Eoe, attorney for the plaintiff, in default of the oppo
nent's appearance moved that said Charles Uhene be
ordered to appear in this Court on the last day of the pre
sent term to show cause why the Sheriff should not pro
ceed to the sale of the property seized under the said •(vrit
of execution towards satisfaction of the judgment obtained
by the plaintiff. Ordered accordingly.
In consequence of a commission in the nature of a
commission rogatoire issued from this Court the tenth day
of September last requiring Daniel Campbell, John
Eobertson and John Stevenson, of Schenectady, in the
United States, Esquires, to take the answers of Mathew
Lound, of said Schenectady, to certain interrogatorys
thereto annexed, the said answers so taken by the said
Commissioners were this day returned under their seals into
this Court. Whereupon Mr. Eoe, attorney for the plain
tiff, moved that the said answers be filed among the re
cords and taken as legal testimony in this cause.
By the Court : The rogatoire commission having issued
by virtue of an express clause in an ordinance of
the late Province of Quebec, virtually reappealed by the
fifth Clause of the first Chapter of the first statutes of
Upper Canada and the which statute the proceedings of
this Court are now directed, Mr. Roe can take nothing by
his motion.

Court of Common Pleas adjourned to the sixteenth day
of September, one thousand seven hundred and ninety-
three. William Monforton, Acting Clerk.
Rules of Practice ordered by the Honourable William
D. Powell, first Judge of His Majesty's Court of Common
Pleas for the Western District, to be entered in the minutes
of the said Court.
That there be four return days each term, the first,
fourth, eighth inclusive and last day of the Term.
That all pleas be filed on the third day after the Ee-
turn, Registration on the third day after the plea, and
that three days' notice be given of trial.

UPPER CANADA COURT RECORDS.

157

That in default of plea being filed on the third day
a peremptory rule be had to file plea in the Clerk's office
within twenty-four hours after service of such rule, and
the same to extend to registration.
That all notices and service of peremptory rules be
made at the Clerk of the Court's office.

Court of Common Pleas, holden at L'Assomption,
the sixteenth day of September, one thousand seven hun
dred and ninety-three.
Present: The Honourable William D. Powell, first
Judge of said Court.

WESTERN DISTRICT, 16 September, 1793.

Mr. Roe, for the plaintiff, filed the declaration and
summons returned by the Sheriff in this cause, when the
defendant being thrice called and not appearing it is
ordered his default be recorded accordingly.

Angus Mcintosh
vs.
Bernard Campau.

Mr. Roe, for the plaintiff, filed the declaration re
turned by the Sheriff, the defendant appeared in person
when Mr. Roe prayed the Court to amend the declaration.

Angus iMcIntosh
vs.
Philipp Beianger.

Mr. Roe, for the plaintiff, filed the declaration. The
defendant appeared in person, whereupon prior to any
plea being filed in this cause, Mr. Roe prayed leave to
amend his declaration so that in his present conclusions
the same may stand amended for a sum of three hundred
and sixty-one pounds, eighteen shillings and twopence
and halfpenny, currency of the Province.
Ordered accordingly; whereupon the defendant
appearing and acknowledged to be indebted by the deed
now filed and sealed by him in a sum of two hundred and
sixty-four pounds, eighteen shillings, twopence, half
penny currency of the Province, with interest to be com
puted from the thirteenth day of May last, on which con
fession and motion of the plaintiff the Court order that
judgment be recorded accordingly.
By the Court fi-fa ap'd 1st Jan., '94. Note in six
months. Debt  £261 18 21/2
Costs   8 14 6

William Macomb
vs.
William Forsyth.

£270 12 SVa
Writ  5 0
With interest from the -13th May, 1793, untU paid. C. S.

Mr. Roe, for the plaintiff, filed the declaration. The
defendant appears in person and acknowledged to be in-

3r. McGregor
vs.
Joseph Pouget.

158

UPPEE CANADA COUET RECORDS.

debted to the plaintiff in the sum of two hundred pounds,.
nine shillings, ninepence halfpenny currency of this Prov
ince, it is considered by the Court that the plaintiff do
recover from the defendant the said sum with interest and
cost.

VVESTERN
DISTRICT 19 September, 1793.

Court of Common Pleas, holden at L'Assomption,
the nineteenth of September, one thousand seven hundred
and ninety-three.
Present: The Honourable WUliam D. PoweU, first
Judge of said Court.

George McDougall
vs.
Jacques Chauvin.

George McDougall
vs.
Louis Burlieu.

Jolin McGregor
vs.
James Urquhart.

Hy the Court.

Meldrum & Park
vs.
George Johns.

Mr. Roe, attorney for the plaintiff, filed the declaration
and summons returned by the Sheriff, when the defen
dant being thrice called and not appearing, it is ordered
that his default be recorded accordingly.
Mr. Roe, attorney for the plaintiff, filed the declara
tion and summons returned by the Sheriff, when the de
fendant being thrice called and not appearing, it is
ordered that his default be recorded accordingly.
Mr. Eoe, attorney for the plaintiff, moved that the
defendant be caUed and on. his default of the twelfth
instant, when the defendant being again thrice called and
not appearing it is ordered that this second default be
recorded accordingly, whereupon Mr. Eoe, for the plain
tiff, prayed for judgment and that a writ of inquiry do
issue to the Sheriff to ascertain the damages sustained by
the plaintiff in this suit.
Granted. Eeturnable the last day of the term.
ilr. Roe, attorney for the plaintiff, moved that the
defendant be called on his default of the twelfth instant,
when the defendant being again thrice called and not
appearing it is ordered that this second default be re
corded accordingly, whereupon Mr. Roe for the plaintiff
prayed for judgment and that a writ of inquiry do issue
to the Sheriff to ascertain the damages sustained by the
plaintiff in this suit.
Granted by the Court.

Sehlefelin & A.skin
vs.
Joseph Gaudet.

Continued to Monday next by consent of parties

WESTERN
DISTRICT,
23 September, 1793.

Couet of Common Pleas, holden at L'Assomption,
this twenty-third of September, 1793.
Present: The Honourable William D. PoweU, first
Judge of said Court.

UPPER CANADA COUET RECOEDS.

159

Mr. Roe, attorney for the plaintiff, filed the declara
tion and summons returned by the Sheriff when the de
fendants being thrice called and not appearing it is
ordered that their default be recorded accordingly.

James Allen
vs.
George Jacob and
Alexis Labute.

Tlie defendant having appeared in person according to
the rule of the last Court day and there asked what he hath
to say why judgment should not be entered against him
agreeable to the plaintiffs and acknowledges the debt of
twenty-nine pounds twelve shilling-, New York currency,
to be justly due to the plaintiffs as testified by his note,
dated at Detroit the twentieth day of July, 1790, filed in
this cause and shown to him, wherefore it is considered
that the plaintiffs do recover of defendant, the said sum
being of the money of the Province, eighteen pounds, ten
shillings, together with the costs to be taxed.

Jonathan Shieffelin /
and John Askin
vs.
Joseph Gaudet.

Mr. Roe, for the plaintiff, informed the Court that on
the nineteenth instant a writ of inquiry issued on this
cause and prays the same may be- superseded, and that
the confession of the debt by the defendant now present in
Court be recorded.
By the Court: Ordered. Whereupon the said James
Urquard came in person in the Court and his note bearing
date the fifteenth November, 1788, promising to pay to
the plaintiff or order one hundred and fifty-four pounds,
eighteen shiUings, being exhibited to him he acknowledges
the same to having been written and subscribed by him
confessing the said debt to be justly due and releasing aU
errors in the proceedings in this cause, whereupon it is
considered that the plaintiff do recover from the defen
dant the said .sum and with costs to be taxed.

John McGregor
vs.
James Urquard.

Tlie defendant having filed his plea in the office, I'.nd
the plaintiff by his attorney having replied praying the
issue now raised might be inquired of when the defendant
did the like, whereupon it is ordered that a venire do
issue returnable on the first day of the ensuing term.

Angus Mcintosh
vs.
Philipp Beianger.

Court of Common Pleas, holden at L' Assomption,
this 26th of September, 1793.
Present : The Honourable W. D. PoweU, first Judge of
said Court.

WESTERNDISTRICT, 26 September, 1793.

Mr. Roe, attorney for the plaintiff, moved that the Ce-
fendant be caUed on his default of the nineteenth instant,
when the defendant being again thrice caUed and not ap
pearing, it is ordered that this second default be recorded
accordingly, whereupon Mr. Roe, for the plaintiff, prayed

George McDugall
vs.
Jacques Chauvin.

160

UPPER CANADA COURT RECORDS."

for judgment and that a writ of inquiry do issue to the
Sheriff to ascertain the damages sustained by the plaintiff
in this suit, returnable the 30th instant.

George McDugall
vs.
Louis Beaulieu.

By Court: Granted.
Mr. Roe, attorney for the plaintiff, moved that the
defendant being called on his default of the nineteenth
instant, when the defendant being again thrice called and
not appearing, it is ordered that this second default be
recorded accordingly, whereupon Mr. Roe, for the plain
tiff, prayed for judgment and that a writ of inquiry do
issue to the Sheriff to ascertain the damages sustained by
the plaintiff in this suit, returnable the 30th instant.

By the Court: Granted.

WESTERN
DISTRICT,

Couet of Common Pleas, holden at L'Assomptionj
30 September, 1793. this 30th day of September, 1793.
Present : The Honourable W. D. Powell, first Judge of
said Court.

Meldrum & Park
vs.
George Johns.

The Sheriff returned the writ of inquiry with an in
junction annexed.
By the Court: It is therefore considered that the
plaintiffs recover from the defendant damages by the said
jury, assessed to the amount of eleven pounds, sixteen
shillings and threepence, currency of the Province, with
their costs, to be taxed.
Fi-fa paid 14th Nov., '93. Net. April.
Debt  £1116 3
Costs  7 16 5
£19 12 8
Writ  5 0

George McDugall
vs.
Jacques Chauvin.

Interest from Nov.

C. Smyth.

The Sheriff returned the writ of inquiry with an in
junction annexed.
By the Court: It is considered that the plaintiff re
cover from the defendant damages by the jury assessed to
the amount of fourteen pounds, five shillings and sixpence
halfpenny, currency of the Province, with his costs, to be
taxed.

UPPER CANADA COURT RECORDS.

161

Fi-fa issued 14th Nov., '93. Ret. AprU.
Debt  £14 5 61/3
Costs  7 16 5
£22 1 111/2
Writ  5 0
Interest from day of judgment. C. Smyth, Clerk.
The Sheriff returned the writ of inquiry with an in- George McDugaii
junction annexed. Louis BeauUeu.
By the Court : It is considered that the plaintiff recover
from the defendant damages by the jury assessed to the
amount of four pounds, eighteen shillings and seven-
pence, currency of the Province, with his costs, to be
taxed. Pi-fa issued 14th Nov., '93. Ret. in AprU.
Debt  £4 18 7
Costs  7 16 5
£12 15 0
Writ  5 0

With interest from date of judgment.

C. S.

Sreorge Jacob, one of the defendants, appeared in vs.
person and prayed that the default entered against him AiexULabuts. ^^
on the 23rd instant might be taken off so as to plead to
the action.
By the Court: Ordered.
Mr. Jacob filed his plea and acknowledged the seal to
the bond now produced.
The other defendant, Alexis Labute, being thrice called
and not appearing, it is ordered that his default be re
corded accordingly, whereupon Mr. Roe, attorney for the
plaintiff, prayed that a writ of inquiry do issue to Sheriff
to ascertain the damages sustained by the plaintiff in
this suit.
By the Court : The Court will advise.

' Upon the Sheriff's return on the writ of 'execution filed iglfj**"'' ^""^
in this cause, the Court considers that the return day of jean'spt san-
the said writ be extended for three months, and that the crainte.
same writ be delivered to the Sheriff.
The Court adjourned to thc 1st January next ensuing.
12a

162

UPPER CANADA COUET RECOEDS.

JANUARY TEEM.
34th Geo. III.

WESTERNDISTRICT, 1 January, 1794.

Wm. Forsyth
vs.
Mathew Elliott.

Ex.

Angus Mclnto-sh
vs.
Israel Ruland.

Schieffelin and
Askin vs.
John Askin, Esq.

Jonathan Schieffelin vs.
John Askin, Esq.

John Bte. L'.'Vrch
vs.
Gabriel Hanault.

Herman Eberts
vs.
Jean Guilbeau.
Affidavits above
ten pounds
sterling.

Court of Common Pleas, holden at L'Assomption,
on Wednesday, the first day of January, 1794.
Present, thc Honourable William Dummer PoweU
Esq., first Judge of said Court.
Sheriff returned writ of summons and defendant being
(¦ailed, David Cov\-an appeared and filed defendant's letter
of attorney, and on motion cause stands over until the
regular time for pleading.
Sheriff returned writ of summons and defendant
being thrice called and not appearing, on motion of Mr.
Roe, counsel for the plaintiff, default is recorded against
the defendant and eight days is allowed for defendant's
appearance. Sheriff returned writ of summons and defendant being
thrice called and not appearing, on motion of Mr. Eoe,
counsel for the plaintiff, default is recorded against the
defendant and eight days allowed for his appearance.
Sheriff returned writ of summons and defendant being
tlirice called and not appearing, on motion of Mr. Eoe,
counsel for the plaintiff, default is recorded agauist the
defendant and eight days aUowed for his appearance.
Sheriff returned capias aJ res, and on motion of Mr.
Uoe, it is ordered that the Sheriff do bring up the body of
(he defendant in three days.
Sheriff returned capias ad res, whereupon personally
appearing in Court, the Honourable Jacques Baby,
I^squire. and Francois Baby, Esquire, both of Detroit, and
acknowledged themselves to owe unto the plaintiff, Her
man Eberts, the sum of twenty-four pounds, fifteen shil
lings, currency of the province, jointly and severally on
condition that the defendant shall pay" the costs and con
demnation awarded by the Court unto the plaintiff, or
that he shaU surrender himself a prisoner, or that they
will pay it for him.

.Vcknowledged before me.

Wm. Dummee Powell.

UPPER CANADA COURT RECORDS.

163

The defendant being called appeared by his attorney,
the Honourable Jacques Baby, who filed letter of attorney
and caUed upon Francois Baby, Esquire, to prove the exe
cution thereof, who being sworn deposed that he was pre
sent and saw the defendant execute the same as his act
and deed.

Ex. A.

Sheriff returned Ci. Co. on writ now filed in Court,
and on motion of Mr. Roe it is ordered that the Sheriff
do bring up the body of the defendant in three days.
Mr. Roe, on behalf of the plaintiff, states to the Court
that the Sheriff's officer, conveying the process for service
in this cause had met with an accident, which prevented
the Sheriff from returning it on this day agreeable to the
tenor thereof, and prays that the said return be extended
to the first day of the ensuing term, <and the Sheriff being
in court informed the Court of the truth of the premises.
It is ordered by the Court accordingly.
Mr. Roe upon same reason moves for the like rule.
Granted.

Meldrum & Park
vs.
Jacques Burel.

Wm. Hands
vs.
Jean Bte.
Rheaume.

Ant. Dufresne
vs.
Charles Drouillard.

Mr. Roe moves same rule on like reason.
Granted.

Wm. Park
vs.
Francois Billet.

Mr. Roe upon the same reason moves for the like rule.
Granted.

Meldrum & Park
vs.
Joseph L'Enfant.

The defendant, Alexis LeBute, appeared and prayed
default against him be taken off, which being ordered and he
acknowledging the bond filed in this cause to be his proper
act and deed, it is considered by the Court, on motion of
^Ir. Roe, the said Alexis showing nothing to the contrary.
that the plaintiff do recover from the defendants the sum
of sixty-two pounds, ten shillings, currency, with interest
from the first of January, one thousand seven hundred
and ninety-two, with costs of suit.

James Allan
vs.
Geo. Jacob and
Alexis LeBute.

Court adjourned to Saturday, the 4th instant.
Chas. Smyth.

Court of Common Pleas, holden at L'Assomption,
on Saturday, 4th January, 1794, according to adjourn-
inent.

PROTINCB OP
upper CANADA,
WESTERN DISTRICT. + January, 1794.

Present, the Honourable WiUiam Dummer PoweU,
Esquire, first Judge.

164

UPPER CANADA COURT RECORDS.

Meldrum & Park
vs.
Thos. Clark.

The Sheriff returned writ of summons. Defendant
appeared in person, and having prayed oyer of the cove
nant, which was read to him in court for answer to the
plaintiffs' declaration, says that he has not neglected any
thing which by the said covenant he convenanted to do,
but hath performed all the several engagements and there
fore is not indebted in the said sum of one hundred and
ninety pounds, currency, or in any part thereof.

Meldrum & Park
vs.
Jacques Burrel.

On capias against the said defendant, Jacques Burrel,
of Detroit, for the sum of two hundred and fifty pounds,
currency, at the suit of the said plaintiffs. Affidavit
£244 16s. 3d. Bail perfected in court, John McGregor, of
Detroit, merchant, and Mathew Dalson, of the same place,
innkeeper. Each of the bail £250.

Defendant not appearing default is recorded.
Defendant is surrendered by his BaU before plea
pleaded this 14th March, 1794. Debt sworn to
£244 16=. 3d.
W. D. Powell. J.CP.

J. Bte. L'Arch
vs.
Gabriel Hanault

Herman Eberts
vs.
Guilbeau. Wm. Forsyth
vs.
Mathew Elliott.
filed Ex. b.

Mr. Roe, for plaintiff, prays that the rule made in
this cause on Sheriff to bring up the defendant's body be
extended to Wednesday next.
Granted.
Peremptory rule to plead on Wednesday next.
David Cowan, attorney by procuration to defendant,
appeared and proved letter of attorney. Fiied affidavit
and motion for continuance until next term, whereupon
the Court considers that the defendant have time to plead
until the first day of said term.

Schieffelin and
Askin vs.
John Askin, Esq.
Ex. a.

Letter of attorney filed and proved by Robert Stevens,
one of the subscribing witnesses.
WiUiam Harffy, Esq., attorney by procuration to the
defendant, moves the Court that the default of last court
day be taken off the defendant, and that he be allowed to
enter his appearance. Allowed by the Court on payment
of costs.

Br. b.

Defendant's attorney filed affidavit, and thereupon
moves the Court to continue this action until the first
return day of July term next. Court will consider and the
parties given to the next adjournment.

UPPER CANADA COUET EECOEDS.

165

Wm. Harffy, attorney by procuration to thc dcfen- s^f'f 'S^"^
dant, moves similar rule to the foregoing, Avhereupon the vs.
Court orders default to be taken off on payment ol costs.

John Askin, Esq.

Defendant's attorney filed affidavit, and thereupon ''"^¦
moves the Court to continue this action until the first
return day of July term.
The Court will consider and parties given to next ad
journment. The Court adjourned till Wednesday, the Sth instant.
Chas. Smyth, Clerk.

Court of Common Pleas, holden at L'Assomption, province of
o,, , .,„„, ' ' UPPER CANADA.
8th January, 1794. western
Present: The Honourable Wm. Dummer Powell, Esq., district.

first Judge.,

S January, 1794.

She'riff filed return writ. Defendant called and not chas. Smyth
not appearing. Default.
W. D. P.

vs.
Wm. Groesbeck.

On motion of Mr. Roe, defendant called ami not ap
pearing, it is ordered that default be entered and that a
writ of enquiry do issue, returnable the last day of term.
Issued Ret. 17th.

Angus Mcintosh
vs.
Israel Roland.

On Capias against defendant for thc sum of twenty-
five pounds, currency, at the suit of the plaintiff.
Affidavit above £10 sterling.
Bail perfected in court. John McGregor, of Detroit,
Merchant, and James May of the same place, l\Ierchant.
Each of the bail of £18 15s.

L'Arch vs.
Hanault.

Rules.

Letter of attorney to John Askin, Esquire, filed and
proved by Robert Woolsey, one of the subscribing wit
nesses. Defendant entered appearance.
" Three days for plea allowed.
Rule on Sheriff to bring up body filed. Ex. a.

Ex. b.

Letter of attorney filed and proved by Salmon God-
rich, one of the subscribing witnesses.
James May, attorney by procuration to defuiidant,
moves that default of last court day be taken off, and that
he be allowed to enter appearance for defendant. Granted
on payment of costs.
Defendant's attorney filed affidavit and moved the
Court to continue this action until next term, and ^Ir.
Roe, stating that the defendant ought not to have the time

Meldrum & Park
vs.
Jacques Burel.

Ex. b.

166

UPPER CANADA COURT RECORDS.

Eberts
vs.
Guilbeau.

Schieffelin and
Askin vs.
John Aslcin.
Jon. Schieffeliu
vs.
John Askin.

prayed for, it is ordered that the defendant do plead in
three days.
Oyer pra3-ed for and granted.
Mr. Eoe filed return of rule of last court day, Ex. b.
and on motion it is ordered that a writ of enquiry do i^sue
returnable last day of tenn.
Issued, ret. 17th.
C. S.

day.

Mr. Eoe further eontinued on motion tUl next court

Continued as above.

Meldrum & Park
Thos. Clark.
Ex. a.

PROVINCE OF
UPPER CANADA.
WESTERN
DISTRICT. 11 January, 1794.

Jleldrum & Park
vs.
Thos. Clark.
Schieffelin and
Askin vs.
John Askin.
Schieffelin vs.
John Askin.

Meldrum & Park
vs.
Burel.
Ex. u.

Jean Bapte. L'.\rch
vs.
Gabriel Hanault.

^Ir. Eoe filed replication and moves for venire return
able on Monday next. Ordered. Beturned and continued
on motion of the plaintiff's attorney until Wednesday next.
Court adjourned tiU Saturday next, 11th in-t.
Chas. Smyth, Clerk.
Court of Common Pleas, holden at L'Assomption,
Saturday. 11th January, 1794, according to adjournment.
Present: The Honourable Wm. Dummer PoweU, Esq.,
first Judge.
Discontinued on motion of plaintiff's attorney.
^Ir. Eoe filed affidavit. Ex. continued till next court
day. Mr. Eoe filed affidavit. Ex. eontinued tiU next court
day. Mr. Eoe moved for ]ilea. Defendant's attorney filed
affidavit and motion to continue until July term, and on
suggestion of Mr. Eoe continued untU next court day,
liaving matter to oppose why the defendant's motion ought
not to be granted.
Defendant filed plea, continued untU next court day.
Court adjourned tiU Wednesday, 15th instant.
Chas. Smyth, Clerk.

UPPER CANADA COURT RECOEDS.

16^

Couet of Common Pleas, holden at L'Assomption, uppERC^fN°DA
Wednesday, 15th January, 1794, pursuant to adjourn- westbrn "
ment. Present: The Honourable WiUiam Dummer PoweU, i= January, i794.
Esq., etc., etc.
Defendant called does not appear and his former de- Chas.smyth
fault being read, on niotion by Mr. Eoe, judgment for wm. Grossbock.
plaintiff, and that a writ do issue commanding the Sheriff
to enquire of the plaintiff's damages in this plea, returnable '
first day of next term.
Ex'n. issued 4th Apr. 1794, returnable Sept. term.
Debt  £20 13 11
Costs . . . ,  7 17 8
£28 11 7
ATrit  5 0
With interest on £20 13s. lid., from date of judgment.
W. D. Powell, J.CP

Mr. Eoe, of counsel for the plaintiffs, moves that in
consequence of the cause shown in the affidavit of the plain
tiffs now filed and agreeable to the rules for regulating thc
practice in this Court that a rule be made that the defen
dant do plead to this writ in three days.
By the Court : Time is given to the defendant tiU the
first day of next term to file his plea in this cause, subject
to further extension if at that day he shall certify the
Court that he has used all reasonable means to procure
legal advice for his plea, subject also to this further condi
tion, that he consent that in case of judgment against him
in this cause, legal interest upon such sum as may be ad
judged to the plaintiff shall commence from the last day
of this term.
The defendant's attorney, present'in court, accepts of
the condition of the rule for continuance.
Defendant filed letter of attorney, proved in court. E.f.
Mr. Eoe, in consequence of the rule made, prays thc
Court that good and sufficient security may be given to
answer the judgment of the Court. Over-ruled.

Schieffelin and
Askin vs.
John Askin.

Mr. Eoe moves similar rule jn this cause. Jonathan
By the Court : Peremptory rule on defendant to plead " vs* '"
first day of next term.
Defendant files letter of attorney proved in court,
marked Exhibit.
Issued Eule 12th March, '94.

168

UPPEE CANADA COUET RECORDS.

Angus Mcintosh
vs.
Israel Ruland.

IMeldrum & Park
vs.
Burel.
L'Arch vs.
Hanault.

Petition of Ann Ruland, wife of defendant, filed.
The Court, in view of declaration and writ of sum
mons, order stay of execution.
On consent of parties cause continued till next term.
Continued for replication.
Court adjourned till Friday, 17th instant.
Chas. Smyth, Clerk.

PROVINCSB OP
UPPER CANADA.
WESTERNDISTRICT. 17 January, 1794.

Court of Common Pleas, L'Assomption, Friday, 17th
January, 1794, according to adjournment.
Present: Honourable Wm. Dummer Powell, Esquire,
first Judge, etc., etc.

Angus Mcintosh
vs.
Israel Ruland.
L'Arch vs.
TIanault.

Discontinued on motion of Mr. Roe for plaintiff.
Continued, on motion of Mr. Roe, till next term for
replication.

Court adjourned till March term next.
Chas. Smyth.
MARCH TERM.
34th Geo. III.

PROVINCE OP
UPPER CANADA.
WESTERNDISTRICT. 14 March, 1794.

Court of Common Pleas, holden at L'Assomption, on
Friday, the fourteenth day of March, 1794.
Present: The Honourable William Dummer PoweU,
Esquire, first Judge of said Court, etc., etc.

Meldrum & Park
vs.
Francois Billette.

Sheriff returned writ of summons. Defendant called,
does not appear. Default, on motion of Mr. Roe, of
counsel for plaintiffs.

Wm. Hands
vs.
J. Bte.
Rheaume.

Sheriff returned writ of summons. Defendant called,
does not appear. On motion of Mr. Roe, plaintiff's attorn^,
default is recorded.

Antoine Dufresne
vs.
Charles Drouillard.

Sheriff returned writ. Defendant called. Default. Mr.
Eoe, for plaintiff, prays default. Ordered.

Charles Smyth
vs.
Wm. Groesbeck.

The writ of enquiry of damages recorded in this cause
on judgment by default, being this day returned by the
Sheriff, and the plaintiff being Clerk of the Court in office,
it is considered by the Court that the plaintiff, Charles
Smyth, Esquire, do recover of the defendant, WiUiam
Groesbeck, merchant, the damages found against him by

UPPER CANADA COURT RECORDS.

169

the jury, summoned on the said writ, amounting to twenty
pounds, thirteen shillings and elevenpence, together with
his costs to be taxed by the Court.
Wm. Dummer Powell, J.CP.

Sheriff returned writ and summons.
Defendant personally appears, and for answer to the
plaintiff's declaration, says that he is not indebted to the
plaintiff in the sum demanded, or any other sum, and Mr.
Roe. of counsel for the plaintiff, says that he is indebted
in manner and form and prays that it may be enquired of.
On consent of parties, it is ordered that George
McDougall, of Detroit, merchant, and George Sharpe,
Esquire, of the same place, merchant, mutually chosen by
the said parties, be named arbitrators in this cause, and
that the said arbitrators do give in their award in writing,
returnable in eight days.

John Askin, Esq..
vs.
Pierre Solo.

Sheriff returned writ and summons.
Defendant personally appears and for plea says he is
not indebted in manner and form to the plaintiff, and Mr.
Eoe, for the plaintiff, replies that he is indebted in manner
and form and prays that it may be enquired of by the
Court. On motion of Mr. Roe, a writ of venire is ordered to
be issued, returnable on Tuesday next.
On motion of defendant to withdraw his plea it is
granted, and on consent of parties similar rule, as above, is
ordered to the same arbitrators.

John .Askin, Esq.,
VS.
.\lexis Solo.

On motion of Mr. Roe, it is ordered peremptorily that
the defendant do plead on next court day.
On this day, the bail having surrendered the principal,
it is ordered that the Sheriff do take him into custody.

Meldrum & Park
vs.
Jacques Burel.

Defendant, present in court, says that he is not indebted
in manner and form to the plaintiffs as by their declaration
it is alleged.
Continued for replication on motion of Mr. Roe.

Meldrum & Park
vs.
Jacques Burel.

Mr. Roe moves the Court that a peremptorily rule be
made upon the defendant to plead in three days, and the
defendant's attorney appearing stated to the Court that the
same reason exists which induced him to pray time last
term. By the Court: The delay to plead having been
granted on affidavit by the defendant's special attorney,
that he could not plead for want of legal advice with safety
to his constituents, there being only one attorney practicing
in this court and that he had reason to expect before this
13a

Wm. Forsyth
vs.
Math. Elliott.

170

UPPER CANADA COURT RECORDS.

Schieffelin &
Askin vs.
John Askin, Esq.
J. Schieffelin vs.
Jno. .^skin.
L'Arch vs.
Hanault.

day advice how to plead, which advice the said attorney now
suggests to have been expected by the express not yet
arrived but hourly expected, the Court extended the time to
plead until next Court day.
Peremptory rule to plead in three days, on motion of
Mr. Roe.
Continued till next court, on motion of plaintiff.
Continued, on motion of Mr. Roe, for replication.
Memorandum : The Sheriff represents to the Court that
there is no gaol in the district for the reception of civil
prisoners.

PROVINCE OF
UPPER CANADA.
WESTERNDISTRICT. 18 March, 1794.

John Askin, Esq.,
vs.
Jos. Malnville
dt. Duchene,
Deft.Schieffelin and
Askin vs.
John Askin.

Court adjourned till Tuesday, the 18th instant..
Chas. Smyth, Clerk.
Court of Common Pleas, holden at L'Assomption, on
Tuesday, the 18th day of :March, 1794, according to ad
journment. Present: The Honourable William Dummer Powell,
Esquire, first Judge, etc.
Summons returned. Defendant eaUed, does not appear.
Default on motion of Mr. Roe.
Mr. Eoe filed peremptory rule of last Court.
Defendant appears in person and files plea in abate
ment. Continued on motion for communication.

Jonathan
Schieffelin vs.
John Askin.
Forsyth vs.
M. Elliott.
Meldrum & Park
vs.
Jacques Buiel.

L'Arch vs.
Hanault.

Plea filed. Continued for communication.
On motion of defendant's attorney to plead, plea filed.
Continued on -motion for communication. Granted.
Mr. Eoe files replication. On motion of Mr. Boe
ordered that venire do issue, returnable on Friday next.
Mr. Eoe files replication. On motion ordered that
venire issue returnable on Friday next.
Court adjourned till Friday next, 21st instant.
Chas. Smyth, Clerk.

UPPEE CANADA COUET EECOEDS.

171

Court of Common Pleas, holden at L'Assomption, on
Friday, the 21st day of March, 1794, according to adjourn
ment. Present : The Honouraable Wm. Dummer Powell, Esq.,
first Judge, etc.
Summons returned. Defendant called, does not
appear. Default on motion of Mr. Roe for plaintiff.
Defendant called, does not appear. Read former default.
On motion of Mr. Roe, judgment for plaintiffs, and that a
writ of enquiry do issue returnable last day of term.
Defendant called, does not appear. Default on
motion. Judgment for plaintiff and that a writ of enquiry
do issue returnable last day of term.
Defendant called. Does not appear. On motion,
default and judgihent for the plaintiff. Writ of enquiry
do issue, returnable last day of term.
Sheriff returned writ of fi-fa. Defendant called, does
not appear. On motion ordered that fi-fa issue upon
judgment, and that costs of fi-fa be allowed plaintiff.
Pi-fa issued 22nd May, 1794, returnable Jan., l';95.
Debt  £73 11 0
Costs  8 0 6
Sub-costs 

PROVINCE OP
upper CANADA.
WESTERNDISTRICT. 21 March, 1794.

John Burrel
vs.
Wm. Groesbeck.

Meldrum & Park
vs.
Fran. Billette.

Hands vs.
Rheaume.

.'\ntoine Dufresne
vs.
Drouillard.

John Askin, Esq.,
vs.
Guillaum
LaMothe.

Int. on £73 lis. from 26th Aug., '89.

C. Smyth.

On motion of Mr. Roe, it is ordered that the rule of
submission of the fourteenth instant be extended to Tues
day, the twenty-fifth, for return,

John Askin, Esq.,
vs.
Pierre Solo.

On motion of Mr. Roe, it is ordered that the return of
venire be extended to Tuesday next, on suggestion that the
jury could not be warned, it being impossible to cross the
river owing to the ice. Sheriff present in court reports this
circumstance.

Meldrum & Park
vs.
Jacques Burel.

The defendant's attorney filed affidavit and moves the
Court that the trial of this issue be put off until July term
for want of a material evidence, and Mr. Roe, for the
plaintiff, admits the fact stated in the said affidavit to be
proved by the said material evidence to be true, and prays
the Court that venire awarded last court day be made re
turnable on Tuesday next.

J. Bte. L'Arch
vs.
Gab. Hanault.

172

UPPER CANADA COURT RECORDS.

Wm. Forsyth
vs.
M. Elliott.

By the Court: Ordered that return of venire be ex
tended, returnable as above.
Mr. Roe filed replication. On motion of Mr, Eoe,
ordered that venire do issue, returnable on Thursday next
for trial in this issue.

J. Schieffelin vs.
John Askin.

Schieffelin and
Askin vs
John Askin.

Mr. Roe filed replication, and states to the Court that
as issue is raised in this cause a venire may be awarded,
returnable on Thursday next.
By the Court: Over-ruled and next court given defen
dant to consider of the said reply and rejoin.
Mr. Roe, for plaintiffs, files plea of demurrer. On
motion to be argued on Tuesday next.

Court adjourned till Tuesday next, the 25th March

inst.

Chas. Smyth, Clerk.

PROVINOB OP
UPPER OAiNADA.
WESTEHIN DISTRICT.25 March, 1794.

John Askin, Esq.,
vs.
Pierra Solo.

Court of Common Pleas, holden at L'Assomption, on
Tuesday, the twenty-fifth day of March, 1794, according
to adjournment. Present: The Honourable William Dummer Powell,
Esquire, first Judge, etc.
Mr. Eoe files award arbitrators named in this cause.
Continued.

Same vs.
Jos. Malnville
dtj Duchene.

Defendant appears by his attorney, Charlotte Souligny,
his wife, and-fUes letter of attorney proved in court by the
oath of Louis Bourrasa, confessed judgment for the sum of
twenty-five pounds currency, but states to the Court that
her husband, the defendant, has not yet received the plain
tiff's title to the land in question. Wherefore the Court
orders stay of execution until the plaintiff files in court
the said title from Mominier, the person from whom the
plaintiff purchased the land.
Title filed in the office 27th April, 1794.
C. Smyth.
Ex'n. issued 30th AprU, 1794, ret. last day Sept. term
next. Debt  £25 0 0
Costs  6 8 2
£31 8 2
Writ  5 0
Interest from judgment. C. Smyth, Clerh.

UPPER CANADA COURT RECORDS.

173

Sheriff returns venire with panel annexed.
Jury called and sworn : —
1. Antoine Dufresne, merchant.
2. Laurent Parrente, yeoman.
3. Antoine Labaddy, pr., yeoman.
4. Joseph Barthelom, yeoman.
5. Dominique Goddette, yeoman.
• 6. Julien L'Bute, fils, yeoman.
7. Jean Bapte. Chapperton, yeoman.
8. Laurent Marrentet, yeoman.
9. Francois Mou ton, yeoman.
10. Bte. Labaddy, fils, yeoman.
11. Joseph Pillet, yeoman.
12. Francois Meloche, yeoman.
Mr. Roe files subpoena issued in this cause.
Charles Morand, Esq., called, sworn to give evidence.
Robert Gambeli, gentleman, and Jonathan Schieffelin,
merchant, sworn.
Jury return verdict for defendant.

Meldrum & Park
vs.
Jacques Burel.

Upon argument on demurrer Court order that the de
fendant do plead over.

Schieffelin and
.A.skln vs.
John Askin*.

Mr. Roe files rule of last Court and prays that peremp
tory rule be made on defendant to rejoin in three days,
and the defendant present in court states that he has not
legal advice how to answer, whereupon the Court over
rules plaintiff's motion and order that the defendant do
rejoin peremptorily on the first day of next term.

J. Schieffelin vs.
John Askin, Esq.

Court adjourned till 27th inst.

C. Smyth, Clerk.

Court of Common Pleas, holden at L'Assomption, on
Thursday, the twenty-seventh day of March, 1794, accord
ing to adjournment.
Present: The Honourable WilHam Dummer Powell,
Esq., first Judge, etc.

PROVINCE OP
UPPER CANADA.
WESTERN
DISTRICT. 27 March, 1794.

On motion of Mr. Roe, and consent of defendant's
attorney filed. Court ordered that the venire issued in this
cause returnable of this day, be extended to Monday next,
31st inst.

VVm. Forsyth
vs.
M. Elliott.

Sheriff return of nulla bona filed on fi-fa issued in this
cau Be.

Geo. McDougall
vs.
Louis Beaulieu.

174

UPPER CANADA COURT RECORDS.

Mr. Roe moves that a writ of ca. ad. sa. do issue in this
cause. Court will advise.

Schieffelin and
Askin, Pltfs.,
vs.
John Askin, Deft.,
and
Jonathan Schieffelin, Pltf.,
vs.
John Askin, Deft.

The parties, plaintiffs and defendant, in the said
causes respectively being present in court, it is- ordered by
the Court on motion of Mr. Roe, for plaintiffs, and with
the consent of the said parties that the respective plead
ings be withdrawn, the bonds of arbitration be cancelled,
the award of the umpire set aside, and the several matters
in dispute between the said plaintiffs and plaintiff and
defendant be submitted to the verdict of a jury on the
following points, to wit, what and to what amount are
the overcharges and errors in account furnished to the
said plaintiffs by the defendant for the years one
thousand seven hundred and eighty-nine, one thou
sand seven hundred and ninety, one thousand seven hun
dred and ninety-two and ninety-one. What is the amount
of the private account between Schieffelin, plaintiff, and
Askin, defendant. If the amount of the said_ private
account should stand as an item of credit in account with
the said Schieffelin and Askin and John Askin; If the
private account of John Askin, Junior, with John Askin,
the defendant, prior to the commencement of the co-part
nership between Schieffelin and Askin, should stand as an
item of debit in account of said Schieffelin and Askin with
John Askin. ^Vhat should be the amount of credit to be
given to the said Schieffelin and Askin by the said John
Askin on account of furs remitted by them to said John
Askin in one thousand seven hundred and ninety-one.
On motion of Mr. Roe, with consent of the said parties,
it is ordered that a venire do issue for trial on Monday
next, the thirty-first inst.
Court adjourned till to-morrow.
Chas. Smyth.

PROVINCE OF
UPPER CANADA.
WESTERNDISTRICT.
28 March, 1794.

Court of Common Pleas, holden at L'Assomption, on
Friday, 28th day of March, 1794, according to adjourn
ment.

Present : The Honourable Wm. Dummer Powell, Esq.,
first Judge, etc.

Burrel vs.
Groesbeck.
Issued.

Defendant called does not appear. Former default read
on motion. Judgment for the plaintiff and that a writ of
enquiry do issue returnable first day of July term next

Geo. McDougall
vs.
Louis Beaulieu.

Continued till Monday.

UPPER CANADA COURT RECOEDS.

Judgment for the sum awarded with costs, being seven
pounds, N.Y. currency.
Execution issued 23rd May, '94, ret. 1st Jan., '95.
Debt  U 7 6
Costs  6 18 2
£ 1 1 5 8
Writ  5 0
-Int. on £4 7s. 6d. from date of judgment. C. S.
Court adjourned till Monday, 31st io^t.
Chas. Smyth, Clerh.

John Askin, Esq.,
vs.
Pierre Solo.

Court of Common Pleas, hoMen at L'Assomption, on
Monday, the 31st day of March, 1794, according to aiijourn-
ment. Present: The Honourable William Dummer PoweU,
Esq,, first Judge, et-c.

PROVINCE OF
UPPER CANAD.A.
WESTERN DISTRICT.31 March, 1794.

Sheriff returns venire with panel annexed.
Jury called and sworn: —
1. George Meldrum, of Detroit, merchant.
2. John McGregor, of Detroit, merchant.
3. James Fraser, of Detroit, merchant.
4. John Martin, of Detroit, merchant.
5. George Sharpe, of Detroit, merchant.
6. William Shepherd, of Detroit, merchant.
7. Eobert Abbott, of Detroit, merchant.
8. Geo. McDougall, of Detroit, merchant.
9. Angus Mcintosh, of Detroit, merchant.
10. Wm. Hands, of Detroit, merchant.
11. Eichard Pattinson, of Detroit, merchant.
12. Moses David, of Detroit, merchant.
John McGregor, merchant.
James McDonell, merchant. Sworn for plaintiffs.
John Askwith, gentleman
Eobert Stevens, gentleman. Sworn on behalf of defendant.

Schieffelin and
Askin vs.
John Askin, Esq.,
and
Jonathan Schieffelin vs.
John .\skin.

Jury returned verdict as follows: — Verdict of tbe
special jury on the points submitted to their decision by a
rule of His Majesty's Court of Common Pleas for the
Western District, Province of Upper Canada, in this
cause : —
First: In conformity with the said rule of court, the
jurors ^o find and say that the amount of overcharges and
errors in account

176

UPPER CANADA COURT RECORDS.

Account furnished to the said plaintiffs, Schieffelin and
Askin, by the said'defendant, John Askin, Esq., for the
years one thousand seven hundred and eighty-nine, one
thousand seven hundred and ninety, one thousand seven
hundred and ninety-one and one thousand seven hundred
and ninety-two, do amount to the net sum of ninety pounds
seventeen shillings, New York currency.
Second: The said persons do also find and say that
the amount of the private account between the said Jona
than Schieffelin and John Askin, defendant, is the sum of
two hundred and eighty pounds, one shilling and one
penny halfpenny. New York currency.
Third: The said Jurors do also determine that the
amount of the said private amount should stand as an item
of credit in account with the said Scheiffelin and Askin
and John Askin.
Fourth: The said Jurors also find that the private
account of John Askin, Jun., with John Askin, defendant,
prior to the commencement of the co-partnership of Scheif
felin and Askin and amounting to the sum of two hun
dred and twenty-four pounds, thirteen shillings and four
pence. New York currency, should not stand as an item of
debit in account with the said Scheiffelin and Askin and
John Askin.
Fifth : The said Jurors do lastly find that the amount
of credit to be given the said Scheiffelin and Askin, by the
said John Askin, on account of furs remitted by them to
the said John Askin in one thousand seven hundred and
ninety-one should be the sum of three thousand, six hun
dred and forty-six pounds, eight shillings. New York
currency.

Wm. Forsyth,
Pltf., vs.
Math. Elliott.

On motion of Mr. Roe, and on consent of defendant's
attorney, it is ordered that venire issued in this cause and
returnable of this day be discharged, and that a venire do
issue for trial on the second day of July term.
Sub. issued and venire.

Angus Mcintosh
vs.
Pierre LaBute.

Sheriff filed return of writ. Defendant appeared, and
on his confession judgment for plaintiff for the sum of
twenty-nine pounds, eighteen shillings, with costs.
Ex'n issued 36th Apr., '94. Ret. Sept. term.
Debt  £29 18 0
Costs 
Writ  5 0
Interest from date of judgment. C. Smyth.

UPPER CANADA COURT RECORDS.

177

Sheriff filed return of writ. Defendant called, does not
appear. Default on motion.
Sheriff returns writ of enquiry awarded in this cause
on judgment of default. On motion, judgment for the
plaintiffs for the sum of forty-six pounds two shillings and
threepence currency, with costs.
Ex'n. issued 30th April, '94. Ret. last day Sept. term.
Debt  £46 2 3
Costs 
Writ  5 0
Interest from judgment. C. Smyth, Clerk.
Sheriff returns writ of enquiry awarded in this cause on
judgment of default. Judgment for the sum of one hun
dred and thirty-five pounds, eighteen shillings and five
pence, with interest from the seventeenth day of jMarch,
one thousand seven hundred and ninety-two, with costs of
suit. Sheriff returns writ of enquiry. Judgment for the sum
of eighty-five pounds, eight shiUings and fourpence half
penny, with costs.
Ex'n. issued Apr. 30, '94. Ret. last day of Sept. term.
Deht  £85 8 41/2
Costs 
Writ  5 0
Interest from judgment. C. Smyth, Clerk.
Ordered on motion of Mr. Roe that Ca. ad. sa do issue
against the defendant for satisfaction of judgment ren
dered in this cause.
Issued ca. dated of this day ret. 1st Court.
Subsequent costs
Writ  £0 5 0
C. Smyth, Clerk.
Sheriff's return of nulla bona filed. On motion of Mr.
Roe ordered that ca. ad. sa. do issue against the defendant
for satisfaction of judgment rendered in this cause.
Issued dated of this day, ret. 1st Court.
Subs, costs.
Writ.

LePage, Pltf.,
vs.
OuiUet.

Meldrum & Park
vs.
Francois Billette.

Wm. Hands
J. Bte. Rheaume.

Dufresne, Pltf.,
vs.
DrouIUard.

Geo. McDougall
vs.
Louis Beaulieu.

Geo. McDougall
vs.
Jacques Chovin.

Court adjourned till July term.

Chas. Smyth, Clerk.

178

UPPER CANADA COURT RECORDS.

PKOVINOE OP
UPPER CANADA.
DISTRICT OP
HESSB.
3 September, 1792.

COURT OF OYER AND TERMINER.
At His Majesty's Court of Oyer and Terminer and
General Gaol Delivery, holden at L'Assomption, in and for
the District of Hesse, in the Province of'" Upper Canadfi,
this third day of September, 1792, were
Present: Wm. Dummer Powell, Esquire, and his
feUows. The King's Commission read.
The Sheriff returned the precept and calendar of
prisoners. Called over the panel of Justices, Grand and Petty
Jurors and Peace Officers.
The following persons took the oath as Grand Jurors,
to wit: —
1. James May, of St. Annes, merchant.
2. John Scheiffelin, of St. Annes, gentleman.
3. WUliam Caldwell, of Detroit, Esq.
4. James Allen, of St. Anne, merchant.
5. Geo. McDougall, of St. Anne, merchant.
6. James Fraser, of St. Anne, merchant.
7. David Robertson, of St. Anne, merchant.
8. John Askin, Jun., of St. Anno, merchant.
9. James McDonell, of St. Anne, merchant.
10. Bazil Campeau, of St. Anne, gentleman.
11. Joseph Visgar, of St. Anne, merchant.
12. Charles Girardin, of St. Anne, merchant.
13. Charles Morran, of St. Anne, gentleman.
14. Francois Gamelin, of St. Anne, gentleman.
15. Montigny Louvigny, of St. Anne, gentleman.
16. Francois Chabert, of St. Anne, Esquire.
William Scott, of Detroit, was duly sworn to attend
them during the Assizes.
W. R., C. C 0. and T. .

The above persons being charged withdrew, and Wil
liam Lamothe, Esquire, returned as a Grand Juror,
this day appeared, and was excused attendance by the
Court as being employed in the King's service in quality of
Indian Interpreter.

UPPER CANADA COURT RECORDS. 179
The following persons were defaulted as Grand Jurors,
to wit: —
1. George Sharp, of Detroit, Esquire.
2. Joncaire Chabert, of Detroit, Esquire.
3. Matthew EUiott, of Detroit, Esquire.
4. Alexis Maisonville, of Detroit, Esquire.
5. Chev'r. De Celoron, of Detroit, gentleman.
6. Louis Beaufait, of Detroit, gentleman.
7. Bapt'e Maloche.
The following Justices of the Peace were defaulted,
to wit: — 1. Alexander Grant, Esquire.
2. Alexander McKee, Esquire.
3. Matthew Elliott, Esquire.
4. Alexis Maisonville, Esquire.
5. George Sharp, Esquire.
6. Angus Mcintosh, Esquire.
7. Charles Gouin, Esquire.
8. Joncaire Chabert, Esquire.
9. William Park, Esquire.
10. George Leith, Esquire.
The foUowing Peace Officers were defaulted, to wit: —
1. Alexis Maisonville, Esquire, Captain.
2. Bapt'e Chapoton.
3. Charles Gouin.
4. Nich'l Gouin.
5. Antoine Beaubien.
6. Francis Baby.
7. Pierre Tremblay.
8. J. B'te Cicot, and
9. Gab'le Godfroy.
The following persons were defaulted as Petty Jurors,
to wit: — 1. James Urquhart, of L'Assomption, merchant.
2. Laurant Par rent, of L'Assomption, yeoman.
3. WiU'm Forsyth, of St. Anne, innkeeper.
4. WiU'm Sorrel, of St. Anne, innkeeper.
5. Joseph Edge, of St. Anne, blacksmith.
6. Antoine Beaubien, of St. Anne, gentleman.
7. Harry Facer, of St. Anne, blacksmith.
The Coroner filed an inquisition held on the body of
Alex'r Clark. Verdict: Natural death.
Do. on the body of Wawanisse, an Indian man at Michi-
limackinac. Verdict: Murder by persons unknown.

180

UPPER CANADA COURT RECORDS.

Issued and deliv
ered warrants to
-the staff on this
order this 3rd
Sept, 1792.
W. R., C.C.

PROVINCE OP
UPPER CANADA.
DISTRICT OP
HESSE.4 September, 1792.

Issued and deliv
ered warrant to
the sheriff on
this order this 4th
Sept., '92.
W. R., C.C.

Do. on the body of Francis Lalonde, taken at Saguina.
Verdict: Death caused by Louis Roy.
Do. on the body of Pierre Grocher, taken at Detroit.
Verdict : Wilful murder by an Indian man caUed Guillet.
The Court ordered the clerk to prepare the indictments
on the inquisitions of Pierre Grocher and Francis
Lalonde. The Grand Jury being returned into court, present,
that a murder had been committed on the person of Albert
Graverot, and request the witnesses may be brought before
them to-morrow.
That an Indian man named Wawanisse has been mur
dered, and request the witnesses may be brought forward
as aforesaid. Ordered, that the Clerk do cause the aforesaid wit
nesses to attend to-morrow morning at ten of the clock.
The Grand Jury also present, that at the last Session
of Oyer- and Terminer and General Gaol Delivery for this
District, a bill was found against Chabouguoy and Caw-
guochish, two Indian men, for the murder of David Lynd,
alias Jaequo, of the River a La Tranche, and that with
regret, they see the said Indians at large without being
brought to trial.
Ordered, that a Warrant do issue, whereby the Sheriff
for this district be ordered to apprehend the said Chabou
guoy and Cawguochish, and have their bodies before this
Court to answer to the said indictments.
Adjourned till to-morrow morning at ten of the clock.
W. Roe, €lerk C 0. and T.
Court of Oyer and Terminer and General Gaol De
livery, holden in the Parish of L'Assomption, in and for
the District of Hesse, this fourth day of September, 1792-,
pursuant to adjournment.
Present: Wm. Dummer PoweU, Esquire, and his
fellows. Opened the Court after the usual proclamation.
The Grand Jury as of yesterday to the exception of Mr.
George McDougall retired to the house of Madam Maran-
tate, with a bill of indictment against Louis Eoy for the
murder of Francis Lalonde, at Saguina, which they re
turned a true bill, whereupon it is ordered, on motion of
the Clerk that a writ of capias do issue, whereby the
Sheriff for this district be ordered to have the body of the
said Louis Roy before this court on Thursday, the sixth
day of August, at the hour of ten in the forenoon, to
answer to the said indictment.

UPPER CANADA COURT RECORDS.

181

The Clerk delivered to the Grand Jury a bill of indict
ment against an Indian man caUed Guillet, for the murder
of Pierre Grocher, late of Detroit, mariner, with which
they retired and returned the same a tme bill, whereupon
it is ordered, on motion of the Clerk, that a writ of capias
do issue, whereby the Sheriff for this district be ordered
to have the body of the said Indian man called Guillet
hefore this Court, to answer to the said indictment.
In consequence of the presentment made by the Grand
Jury of yesterday, Jacques Robitaille, of Detroit, 'gentle
man, Michael Rawleigh, and David Clark, Sargeant
Charles Mclntyre and Michael Lary, private, and Robert
Brown, drummer, all of His Majesty's Fifth Regiment of
Foot, were duly sworn to give evidence before the Grand
Jury touching the murder of an Indian called Wawanisse.
On the same account Francois Fleurie was sworn to give
evidence before the Grand Jury touching the murder of
Albert Graverot, late of Michilimackinac, trader.
Adjourned till to-morrow morning at ten of the clock.
W. Rob, C. C 0. and T.

Issued and deliv
ered warrant to
the sheriff on
this order this 4th
Sept., '92.
W. R., C.C.

Court of Oyer and Terminer and General Gaol Delivery,
holden in the Parish of L'Assomption, in and for the said
district, the fifth day of September, 1792, agreeable to
adjournment. Present: William Dummer Powell, Esquire, and his
fellows. Opened the Court after the usual proclamation.
The Grand Jury attended as of yesterday, and informed
the Court that the presence of the two persons confined in
gaol as accessories to the murder of Albert Graverot, would
be necessary to enable them to accomplish an intended
presentment. The Sheriff returned a cipi corpus on the writ issued
yesterday against Louis Roy, and upon motion of the Clerk
the prisoner was set to the bar and pleaded not guilty, for
his trial put himself on God and his country. "
The prisoner consents to his trial coming on to-morrow
morning at ten of the clock.
The Clerk presented to the Grand Jury a bill against
Josiah Cutan, of Detroit, laborer, for burglary, which they
found a true bill.
Adjourned till to-morrow morning at ten of the clock.
W. Roe, 0.(7.0. and T.

PROVINCE OP
UPPER CANADA.
DISTRICT OP
HESSE. 5 September, 1792.

Court of Oyer and Terminer and General Gaol De
livery, holden in the Parish of L'Assomption, in and for
the said district, this sixth day of September, agreeable to
adjournment.

PROVINCE OP
UPPER CANADA.
DISTRICT OF
HBSSR6 September, 1792.

183 UPPER CANADA COUET EECOEDS.
Present: Wm. Dummer PoweU, Esquire, and' his
fellows : j
Opened the Court after the usual proclamation.
The Sheriff returned a venire, and on motion of the
Clerk, Louis Eoy was set to the bar in order to his trial
agreeable to the rule of yesterday.
Mr. Hugh Holmes, of Detroit, schoolmaster, was duly
sworn to interpret between the Court, jury and prisoner.
The prisoner was informed of his right to challenge,
and the following jurors were sworn, to wit: —
1. Claude Eeaume, of L'Assomption, yeoman.
2. John Welch, of St. Anne, cooper.
3. Joseph Bazinett, of L'Assomption, yeoman.
4. Thomas Cox, of St. Anne, innkeeper.
5. Henry Botsford, of St. Anne, joiner.
6. Alexis Delisle, of St. Anne, yeoman.
7. .John Dodymead, of St. Anne, innkeeper.
8. William Sorell, of St. Anne, innkeeper.
9. Jacques Campeau, of St. Anne, yeoman.
10. Joshua Cornwall, of St. Anne, shoemaker.
11. Augustin Lafoy, of St. Anne, armourer.
12. Joseph Edge, of St. Anne, blacksmith.
The above persons being duly sworn, the Clerk opened
(he prosecution, which was translated by the Interpreter
lo the French part of the jury.
Felix Mettiz, of Detroit, labourer, being duly sworn
t3 give evidence in this cause, saith, —
That at Saguinau on the eighth day of April last, about
(he hour of eleven in the forenoon, the witness, the de
ceased, and Antoine Prevost, were diverting themselves by
throwing sticks, stones, and mud at each other, that the
deceased had a stick in his hand following the prisoner,
saying I will make you fly, that in running from the de
ceased, the prisoner caught up a stone and, turning
around, threw at the deceased, who was standing still, the
prisoner calling out, " Take care." The deceased ran for
ward and held up his hand against the stone, but whether
the stone struck his hand or not cannot say. The
deceased turned round, retreated about fifteen steps to
where they were, and sat down, when the prisoner came up
to him and asked where he was hurt, and the deceased
faid he did not know he was hurt, but thought he was sick
from drinking. They took him to Mr. Gouin's house, and
put him on a bed ; he vomited a little and expired in a few
minutes. Q. by the Jury : Whether after the death of the deceased
the prisoner attempted to make his escape.
Ans. : No. On the eontrarj', he wished to be sent to
Detroit.

UPPER CANADA COURT RECORDS. 183
By the Court: Was either the prisoner or deceased in
liquor when the accident happened?
Ans. : The prisoner was not, but the deceased was a little
intoxicated. That he knows of no misunderstanding
between them. That the stone was not thrown imme
diately at the deceased, but elevated in the air above his
head. The prisoner asked the witness no questions.-
W. R.
Antoine Peevost, of Detroit, labourer, was next duly
sworn, who declares and says :
That on Easter Day last himself, the prisoner, and the
deceased, were diverting themselves by throwing stones,
sticks, and earth at each other. That the deceased was pur
suing the prisoner with a stick in his hand, when the latter
stopped and picked up a stone, which he threw at the
deceased, and which the deceased received with his two
hands, but did not perceive it strike him anywhere else.
Knows of no quarrel happening between the prisoner and
the deceased. Here the witness was so weak that he could
not proceed.
Jonathan Schieffelin, of Detroit, gentleman, being
duly sworn, declares and says :
That on Easter day, the 8th day of April last, about
dinner time, he observed several people throwing stones
and sticks at each other, and a short time after Pierre
Morin came into the house and told him that one of them
was struck witli a stone, which had done his business. That
witness examined the corpse of the deceased and found one
of his left ribs broke and a bruise on his breast. That wit
ness, by desire of Major Smith and the Coroner of the
District, held an inquest on the corpse — who were of
opinion that the death of the deceased was caused by the
stroke of the stone without any malice. That the stone
now shown to the jury was delivered to witness by Felix
Mettiz, who swore before the inquest that it was the same
stone that was thrown at and struck the deceased, but could
not say where.
The Court re-called Felix Mettiz, and upon the oath he
had already taken, said : That the stone now shown to the
jury is the same stone that was thrown at the deceased.
The evidence for the Crown being now closed, the
prisoner was called upon to make his defence, who says:
That whatever happened was merely accidental, as he
had neither pique nor resentment against the deceased, and
that, had not the deceased run forward to meet the stone,
it would not have reached him, as at the time of throwing
it the deceased was at the distance of about sixty yards

184 UPPER CANADA COURT RECOEDS.

from* him. That he does not think it hurt the deceased, as
he observed the stone rolling behind him. That on the
deceased sitting down, the prisoner asked him if he was
struck, who answered he believed not, but thought his weak
ness proceeded from the effect of liquor. That he offered
him the use of his bed, which the deceased immediately
accepted. 'The prisoner prayed that Felix Mettiz might be heard
as an evidence on his behalf, who was diUy sworn to
answer any questions on his behalf.
By the Prisoner: Do you think that the stone thrown
at the deceased could have struck him had he remained
where he was standing at the time of throwing?
Ans. : No, as he was at a distance of about sixty yards.
Jonathan Schieffelin, of Detroit, gentleman, was
next duly sworn to answer any questions that might be
proposed to him on th^ part of the prisoner.
By the Prisoner: Have you known me at any time to
be a quarrelsome man, or given to liquor?
Ans. : No. I have always known you to be a quiet,
peaceable man, and never heard you wished to injure your
comrades. The testimony on the part of the Crown, and of the
prisoner, being now closed, the Court proceeded to give the
following charge: —
Gentlemen :
The prisoner at, the bar stands charged upon the oath
of the Grand Jury with the felonious murder of Francis
Lalonde. From the evidence it appears that on the day
laid in the indictment, the prisoner with the deceased,
Mettiz, and Prevost, had amused themselves with drink
ing in good feUowship. That when they went out of the
house the prisoner was sober, and the deceased somewhat
intoxicated. That playing together rudely throwing at
each other sticks, stones, earth, etc., the prisoner without
any malice took up the stone shown to you and threw it
towards the deceased, at that moment still out of the pro
bable reach of the stone, the prisoner at the same time
crying out " Take care or catch." That seeing the stone
thrown, the deceased stepped forward and held out his
hands to catch the stone, which struck his hand and feU
down and rolled behind him. That the deceased retreated
a few steps in apparent pain, when the prisoner ran up to
him inquiring where he was hurt, and upon the deceased
saying that he did not know, but felt as if sick from drink
ing strong liquor, the prisoner offered him his bed and the
others helped to carry him to it, where he vomited for a
few minutes and expired before a man could get from
the house to bleed him. It appears that one rib of the

UPPER CANADA COURT EECOEDS. 185
left side was broken and the flesh bruised. There appears
no malice or inclination to mischief — such is the fact of
the homicide. The death of a man by the hand of another
is in law subject to four distinctions. It is justifiable
where done in the execution of duty. It is excusable in
cases of self-defence or misfortune where there wis no
malice or neglect. It is manslaughter where the means
used to accomplish the homicide were not unwarrantable
or inconsiderate without malice, or where the natural in
firmity of our nature affords excuse from .sudden passion ou
sufficient provocation. Murder is where there is a malig
nant predetermined resolution to do mischief and death
ensues. You, Gentlemen of the Jury, are to take into
consideration the evidence before you, and, weighing it
maturely, to determine of which of these classes of homi
cide the prisoner is guilty. It is not justifiable. It is not
murder. If you think the recreation described to you
innocent in itself, and that the fatal accident proceeded not
from a blamable inattention to the safety of his comrades
in the prosecution of their coarse play, you will find the
fact to have been by misfortune. If, on the contrary, judg
ing by the weight of the stone, the force and direction given
to it to break a rib at such a distance, you should think the
accident proceeded f rod a culpable inattention, though free
from all design, you will find the prisoner guilty of man
slaughter. By your verdict you are to discharge your own
consciences. The jury being returned into court for their verdict
say: That Louis Eoy, the prisoner at the Bar, is not guilty
of murder, but of excusable homicide by misfortune, and
so say they all, and that he did not fly for it, to their
knowledge. The Court orders the prisoner be remanded to the
custody of tbe Sheriff.
The Grand Jury found bill against Josiah Cutan for
burglary and felony. On motion of the Clerk, the prisoner
was set to the Bar and arraigned. Pleaded not guilty.
Puts himself on God and his Country. On motion of the
Clerk and by consent of the prisoner it is ordered that the
trial of this issue be brought forward to-morrow morning
at ten of the clock, and that a venire do issue, returnable
at that period.
The Grand Jury for the District filed three present
ments, exhibited this day, A, B and C, which the Court
informed them should be transmitted to the superior
powers. Adjourned till to-morrow at the hour of ten in the
forenoon. W, Roe, CCO. and T.

186

UPPER CANADA COURT RECORDS.

PROVINCE OP
UPPER CANADA.
DISTHICT OP
HESSE.
7 September, 1792.

Court of Oyer and Terminer and General Gaol Delivery.
holden at L'Assomption, in and "for the said District of
Hesse, on Friday, the seyenth day of September, 1793,
pursuant to adjournment.
Present: Wm. Dummer Powell, Esquire, and his
fellows. Opened the court after the usual proclamation.
The Sheriff returned the venire, and on motion of the
Clerk, Josiah Cutan was set to the bar in order to his trial,
agreeable to the rule of yesterday.
The prisoner was informed of his right to challenge,
and the following persons were duly sworn to pass upon
his trial, to wit :
1. Amable St. Come, of St. A«nne, armourer.
2. George Chislestul, of St. Anne, shoemaker.
3. Isaac Williams, of St. Anne, trader.
4. Matthew Dalson, of St. Anne, innkeeper.
5. Robert Gouin, of St. Anne, taylor.
6. Hugh Holmes, of St. Anne, schoolmaster.
7. John Welch, of St. Anne, cooper.
8. Thos. Cox, of St. Anne, innkeeper.
9. Henry Botsford, of St. Anne, joiner.
10. Wm. Sorrel, of St. Anne, innkeeper.
11. Joshua Cornwall, of St. Anne, shoemaker.
12. Joseph Edge, of St. Anne, blacksmith.
The foregoing twelve persons being duly sworn, the
Clerk opened the prosecution and called on
LouLs Campeau, who after being duly sworn declares
and says :
That sometime last Fall, cannot exactly recollect the
period, about midnight, Joseph Campeau, of St. 'Anne,
trader, came to the house where witness lived and requested
that he would assist him in apprehending a thief that had
been stealing in his shop, that accordingly witness and
said Campeau set off and overtook the prisoner behind
Mr. Robert McDougall's, at whose house they stopped, and
requested the assistance of one Pilon, ^yho immediately took
charge of the prisoner with the said Joseph Campeau, while
witness returned to the shop to see if there were no other
robbers remaining, and on his way thither, about one acre
and a half from the said house or shop, saw a bag lying
containing some smoked skins and two kegs of rum and
a bundle of peltry, but cannot say of what quality. That
on the prisoner being brought back to the shop, he was
asked if he had stole anything else, which he answered in
the negative, but acknowledged to have taken the above
enumerated articles. That he (the witness) does not
understand English, but learned this from Mr. Jos. Cam-

UPPER CANADA COURT RECORDS. 187
peau, who interpreted it to him. That the said Jos. Cam
peau frequently slept in -the said store or shop where the
robbery was committed.
Q. by Jury : Did the prisoner attempt to make his
escape ? .
Ans.: I do, not know.-
Q. by the Jury : Was there auy property found on the
prisoner ?
Ans.: No.
' By the Court : Did you find anything in the shop which
the prisoner acknowledged to be his property ?
Ans. : Yes, an adze, which he acknowledged to be the
instrument with which he made his entry into the said
store. By the Court: Where did the robbery happen?
Ans.: On the north side of the River Detroit, about
half a league above the Fort, in a house the property of
Mr. Jacques Campeau, leased by Mr. Joseph Campeau, and
that the- goods therein were the property of the said
Joseph. By the Court : Through what part of the said shop did
the prisoner make his entrance?
Ans. : By the door, which he forced open with the said
adze. That he saw the marks of violence bj' which he
effected the same.
By the Court: Is there any chimney in the said shop?
Ans. : That he has been there since the said robbery was
committed and saw the chimney. Knows M. Jos. Cam
peau; has slept there since. That the prisoner attempted
to resist being brought forward.
The prisoner had no questions to propose to this
witness. Ralph Pilon, of Detroit, labourer, -svas next duly
sworn, who declares and says :
That about the eighteenth day of October last he re
sided at Jfr. Robt. McDougall's, and about midnight was
called up by Mr. .Tos. Campeau to assist in conducting a
negro, which the witness recognised to be the prisoner at
the bar, who they accordingly conducted to the house of
Mr. Jacques Campeau. That he went up into the garret
of Mr. Joseph Campeau's store, and observed the different
articles of merchandise there, very much deranged. That
on his way to the said house he observed a bag- lying on the
road, which on being brought to the house contained two
kegs of rum, ahd other articles, which he does not
recollect; The Clerk here moved to read thc voluntary confes
sion of the prisoner taken before John Askin and Geo.
Sharp, Esquires, two of His Mivjesty's Justices of the

188 UPPER CANADA COURT RECORDS.
Peace for this district, which was duly proven on oath by
the said John Askin, Esq., to have been voluntarily taken
before him, without any threats or menace being used to
obtain the same. Read the same to the jury.
Jacques Campeau, of Detroit, trader, being duly sworn,
declares and says: That for about these three years past
he has leased a buUding to Mr. Jos. Campeau, which he
occupies as a shop. That when he did not sleep there him
self he generally left some person to take charge thereof.
The prisoner was here called upon to make his defence,
who says that true it is, Mr. Campeau took him prisoner;
that he does not understand French, but that in answer to
any questions he proposed to him, he may have said yes.
The evidence on the part of the prosecution being now
closed, and the prisoner having no witnesses to call, the
Court delivered the foUovring charge to the jury : —
Gentlemen of the Jury:
The offence charged in the indictment upon the prisoner
at the bar is burglary, that is to say, a breaking of a
dwelling-house by night with intent to commit a felony.
It is proved to you that on the night of the 18th of October
last the prisoner about midnight was found in the road
near Mr. Campeau's house. That upon alarm of noise
several persons assembled and found the store of Mr. Jos.
Campeau's broke open. They found a carpenter's adze
near it, the supposed instrument of the violence, and mer
chandise and liquors were found near the store, but not
proved to have been the property of Mr. Campeau — ^but
the prisoner's voluntary confession upon examination
before two justices proved in evidence to you, shows beyond
a doubt that he was guilty of the burglary, that he forced
the door with the adze, and took away the articles described.
It remains only for the Court to inform you, that by a
dwelling-house alone being the subject of the aggravated
offence of burglary, the law nieant to secure to the subject
the peaceful indulgence of rest by night, and that to give
to every house the character of a dwelling-house, it is
enough that the owner, or some one having charge of it,
sleeps in the house usually, although he may board else
where. The being absent from the house on the night of
the burglary does not diminish the offence, if you shall be
satisfied that it was not abandoned, and one of the wit
nesses swears, that before and since the burglary Joseph
Campeau usually slept in it. You will consider the evi-,
deuce under this view of the offence, and discharge your
consciences. The jury being returned into court for their verdict,
say:

UPPER CANAI>A COURT RECORDS.

189

That Josiah Cutan, the prisoner at the bar, is guilty of
the burglary and felony, whereof he stands indicted, and so
they say all, That he had neither goods, chattels, land or
tenement, at the time of the said burglary and felony com
mitted, or at any time since, nor did he fly for it, to their
knowledge. The Court remanded the prisoner to the custody of the
Sheriff. Adjourned till Monday next at the hour of ten in the
forenoon.
W. Roe, CCO. and T.
Court of Oyer and Terminer and General Gaol Delivery,
holden at L'Assomption, in and for the said District, on
Monday, the tenth day of Sept., 1792, pursuant to
adjournment. Present: Wm. Dummer Powell, Esquire, and his
fellows. Opened the Court after the usual proclamation.
Pursuant to the request of the Grand Jury, it is ordered
that George Sharp, Esq., and Chevalier De Celoron, gen
tleman, both" of the Parish of St. Anne, be fined in the
sum of forty shillings, currency, each for non-attendance as
Grand Jurors agreeable to the return of the Sheriff.
A fine of twenty shillings is set on James Urquhart, pf
L'Assomption, merchant, Laurent Parent, of the same
place, yeoman, and Antoine Beaubien, of St. Anne, gentle-
nian, for their non-attendance as Petty Jurors.
A fine of twenty shillings is set on Pierre L'Etourneau
and Andre Peltier, of L'Assomption, yeoman, for their
non-attendance as Peace Officers — and that these several
fines be estreated.
The Clerk having stated to the Court the verdict ren
dered against Josiah Cutan, for burglary the seventh inst.,
moved that the said Josiah Cutan might be set to the bar
in order to judgment being pronounced against him, which
was done accordingly. When he was asked by the Clerk
if he had aught to say why the sentence of the law should
not be pronounced against him, who answered that he had
not. On motion by the Clerk for judgment, the Court pro
nounced the following sentence.
Josiah Cutan, — you have been found guilty by the ver
dict of twelve good and impartial men upon the plain
evidence of your own voluntary confession, in addition to
other proof, of having committed on the eighteenth of
October last a burglary in the house of Jos. Campeau.
This crime is so much more atrocious and alarming to
society, as it is committed by night, when the world is at
repose, and that it cannot be guarded against without the

PROVINCE OP
UPPER CANADA.
DISTRICT OP
HESSE. .
10 September, 1792.

1^90

UPPER CANADA COUET RECORDS.

same precautious which are used against the wild heists of
the forest, who, like you, go prowling about by night for
their prey. A member so hurtful to the peace of society,
no good laws will permit to continue in it, and the Court in
obedience to the law has imposed upon it the painful
duty of pronouncing its sentence, which is that you be
taken from hence to the gaol from whence you came, and
from thence to the place of execution, whore you are to be
hanged by the neck until you are dead. And the Lord have
mercy upon your soul.
W. Roe, CCO. and T.

COURT OF COMMON PLEAS.
TUESDAY, the 17th MAECH, 1789.

KINCSTON.
!ii.\R<rH TERM.
17S9.
John Ferguson
VE.
Philin Dorland.

Present: The Honourbale Richard Cartwright, Neil
McLean, and James Clark, Esquires.
The Sheriff has returned that he summoned \he
defendant. The plaintiff appears in person and files his declaration,
and the defendant also appears in person.
The defendant prays that Peter Vanalstine may plead
this cause for him.
It is ordered that the defendant do plead for himself.
The defendant prays that this cause may be tried
to-morrow. It is ordered by the Court that the defendant do plead
to-morrow.

John Francis
\-si.
James Richardson.

The Sheriff has returned that he summoned ihe
defendant. The plaintiff appears in person and filed his declara
tion. The defendant also appears in person, and prays
that this cause may be tried on a future day.
It is ordered by the Court that this cause ma/ be tried
on Friday next the 19th inst.

John Fanier
vs.
Richard Ca.rt-
Wtight, Esq.

The Sheriff returned that he has summoned the
defendant. The plaintiff appears in person, but has not filed his
declaration. The Court does order that this cause may be tried on
Friday next the 20th inst.

The Court adjourned until to-morrow morning at 10
o'clock.

UPPER CANADA COURT RECORDS. 191

¦WEDNESDAY, 18th ilARCH.
The Court met pursuant to adjournment.
Present: The three Judges.
The defendant appears pursuant to order of Court and ° "^^'^''5"=°"
says that the said obligation mentioned in said declaration, pi»"'p Dorland.
sets forth that the accounts between the parties were to be
further examined in order to make a final settlement, and
further that although he should have received that quan
tity of provisions mentioned in the aforesaid obligation
from the plaintiff', he does not think himself accountable
to the plaintiff for such. The plaintiff exhibited the said
obligation in court, by which it appears that the defendant
has made himself accountable for the quantity of provi
sions he is charged with. The plaintiff further informs
the Court he had in the course of a month after he received
the said obligation, called on the defendant to make a final
settlement, at which time the defendant acknowledged his
account to be just; excepting one barrel beef, overcharged
him, from which he is credited as appears from his
account. Peter Vanalstine, sworn as an evidence in this cause,
says that he was informed that the defendant had given a
note to the plaintiff for a quantity of provisions, and that
he was present at the time the plaintiff requested the de
fendant to settle the same with notes payable by instal
ments, which the defendant would not agree to; further,
that he knew not of any settlement between the parties.
Thomas Dorland, sworn as an evidence in this cause,
says he was present at the time the plaintiff demanded pay
ment of said note from the defendant. That the defendant
answered he did not think himself indebted to the plain
tiff, but if it was so, he was not able to pay him at that
time. The plaintiff informs the Court that Susannah Vander-
bogart was subpcenaed as an evidence on this cause, but her
being at a distance and unable to travel has prevented her
appearing. Therefore prays that her deposition on oath
may be taken.
The Court does order that the deposition of the said
Susannah Vanderbogart may be taken, and that they shall
take some time to consider further of this cause.
The Court adjourn to to-morrow at ten o'clock.

192

UPPER CANADA COURT RECORDS.

John Fanier
vs.
James Richardson.

THURSDAY, 19th MARCH.
The Court met pursuant to adjournment.
Present : The three Judges.
Brought on pursuant to order' of C'ourt on Tuesday last,
the 17th inst.
The defendant appears and says that having been em
ployed by Mr. R. Cartwright to oversee and superintend
the works carrying on at Navy Island. That on the sixth
day of October last he observed to John Fanier that he
and his party were neglecting their work. That Fanier
was much intoxicated with liquor and assaulted the de
fendant with very abusive, language, tore part of his shirt
off, upon which the defendant in his own defence struck
the plaintiff.
The plaintiff says that on the day aforesaid, while he
was at dinner about one o'clock, the defendant came to the
house, called him " puppy," and acknowledged he was not
at work. The plaintiff answered that it was none of his
business, upon which the defendant took the plaintiff by
the ear and pushed him over a bench. In his attempting
to rise the defendant struck him on the face, he then
having hold of the defendant's shirt, tore part of it. Then
defendant left him and went out of doors. The plaintiff
followed, and in going out the defendant struck him on the
shoulder with a stick and attempted to strike again but
was prevented by some people present.
The parties having been fully heard this day,, the
Court not being yet determined of giving their judgment of
and concerning the premises, it is considered that the same
be taken into deliberation.
The Court adjourned to to-morrow at ten o'clock.

John Panler
vs
James Richardson.

FRIDAY, 20th MARCH.
The Court met pursuant to adjournment.
Present : The three Judges.
The Court having, upon mature deliberation, considered
the arguments of the parties, and having also read and con
sidered the pleadings in this cause, likewise the evidence
produced by the plaintiff, do order and. adjudge that the
plaintiff do recover against the defendant the sum of five
pounds currency, with costs of suit taxed at four pounds
eighteen shiUings.

UPPEE CANADA COUET RECOEDS.

193

The plaintiff appears in person and filed his declara
tion. The defendant also appears and from an account
exhibited in court that the plaintiff has received a consider
able sum since the account recorded, the balance of which
is demanded, and further that the amount retained in the
hands of the defendant is in consequence of work done by
the plaintiff being insufficient and not done in a workman
like manner, which appears from a certificate of said work
exhibited by the defendant; and, further, the defendant
says that he has frequently told the plaintiff that when the
said work was completed in a sufficient manner any sums
due him should be immediately paid.
The plaintiff acknowledges the charges made by thc
defendant and says that the subscribers to the said certifi
cate were not upon oath when they examined the work
therein mentioned, the plaintiff prays that their depositions
may be taken, as their situation renders it very inconve
nient to subpoena them to appear.
The Court does order that the depositions may l)e
taken as prayed, and that judgment may be given concern
ing the premises on Tuesday next, the 24th inst.
The Court adjourned to Monday next.

John Fanier
vs
Richard Cart
wright.

MONDAY, 23rd MAECH.
The Court met pursuant to adjournment.
Present: Eichard Cartwright and Neil ^IcLean,
Esquires. The Court adjourned until to-morrow at ten o'clock.
TUESDAY, 24th MAECH, 1789.
The Court met pursuant to adjournment.
Present: Eichard Cartwright and Neil McLean,
Esquires. From the absence of James Clark, one of the judges,
the Court does consider that the cause between Richard
Cartwright and John Fanier cannot be proceeded on this
day, but that it be tried on Thursday next.
The Court does adjourn to Thursday next.
THURSDAY, 26th MARCH.
The Court met pursuant to adjournment.
Present; The three Judges.

The Court having upon mature deliberation considered
the arguments of the parties, and having also read and
14a

John Fergu-ion
vs.
Phil. Dorland.

194

UPPER CANADA COUET RECORDS.

considered the readings in this cause, likewise the evidence
produced by the respective parties, do order and adjudge
that the plaintiff do recover against the defendant the sum
of one hundred and seventy-one pounds, eighteen shillings
and twopence farthing, H. currency, together with costs
taxed at six pounds, seventeen shillings.

John Fanier
vs.
Rich'd Cartwright.

The defendant appears and says that he has used every
means in his power to procure the evidence necessary to
support his plea, but from the precarious situation of the
ice at this season it was found impracticable to procure
this evidence, therefore prays that this cause may be tried
at the next term.
The Court does order that this cause may be tried on
the second day of next term.
The Court does adjourn until Tuesday next.

TUESDAY, 31st MARCH.

Richard Cartwright and Neil

McLean.

The Court met pursuant to adjournment.
Present :
Esquires. The Court does adjourn until Wednesday, the first day
of July next.

JULY TERM. WEDNESDAY, THE FIEST DAY OF JULY
The Court met pursuant to adjournment.
Present: Eichard Cartwright, Junr., Neil McLean,
and James Clark, Esquires.

Rich'd Cartwright
vs.
Alex'r Grant.

The Sheriff has returned that he has summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant being duly called made default.
The plaintiff prays that that default may be recorded.
It is ordered that the default be recorded.

Thomas Sparham
vs.
John Ferguson.

Chris'r Georgeon
vs.
Haselton Spencer.

The Sheriff has returned that he has summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant being called, H. Clark appears for the
defendant, and prays that this cause may be tried next
Wednesday as prayed.
The Sheriff returned that he has summoned the
defendant. The plaintiff appears in person. The defendant also
appears.

UPPER CANADA COUET EECOEDS.

195

The plaintiff prays that a venire may issue for to try
this cause.
It is ordered by consent of the parties that this cause
be tried hy jury on Saturday next, the 4th inst., and that
a venire do issue returnable that day.

The Sheriff returned that he has suninioncil the
defendant. The plaintiff appears in person and praj-s that this
cause may also be tried by jury.
The defendant appears, that this cause may be tried
by the Judges of this court.
It is ordered that a venire shall issue for the trial of
this cause, returnable on ^londay next, the sixth inst.

Chris'r Georgeon
vs.
John Howard.

The Sheriff returns that he has summoned the
defendant. The plaintiff appears and files his declaration.
The defendant being duly called made default.
The plaintiff prays that default be recorded.
Ordered that default be recorded as prayed.'

Alex'r Clark
vs.
Thomas James.

The Sheriff returned that he has summoned the
defendant. That he has also taken on Saisie to him
directed as belonging to the said Martin Butler, sixteen
thousand butt staves, forty pieces timber, three iron pots,
one cross-cut saw, one pair bull rings, four bushels
potatoes planted, one wooden canoe, three axes, which
articles remain iu his custody until a further order oF thc
Court. The defendant being called made default.

Thomas Stratton
vs.
Martin Butler.

The Sheriff returned that he could not summon the
defendant but by Saisie, and has taken as belonging to the
defendant two hens, one milk cow, which remain in his
hands untU the further order of the Court.
The defendant being caUed made default. Gilbert
James appears and says that the said cow and hens are
his property, which he is ready to prove.
The plaintiff- appears in person and declares that he
can prove the cattle to be the property of the defendant.
The Court does order that this cause be tried to-morrow.
The Sheriff returned that he has summoned tho
defendant. The plaintiff appears in person and filed his declara
tion. The defendant also appears in person and prays that
this cause may be tried by jury.

Alex'r Clark
vs.
Thomas James.

Alex'r SImson
vs.
Barbs. Day.

196

UPPEE CANADA COUET EECOEDS.

Robert Macauley
vs.
Jno. Taylor.

ilat'w Forrest
vs.
John Howell.

It is ordered by consent of the parties that a venire may
issue returnable next Tuesday, the 7th inst.
The Sheriff' returned that he has summoned the
defendant. The plaintiff appears in person. The defendant also
.nppears in person and prays that this cause may be tried
to-morrow. It is ordered that this eauso shall be tried to-morrow,
;is prayed.
i Tlie Sheriff' returned that he has summoned the
lie fendant. The plaintiff' does not appear to prosecute this action.
The Court does order that the defendant be dismissed
with costs.

Thos. Stratton
vs.
Martin Butler.

The defendant appears and requests that the default
may be taken off. It is ordered that the default be taken
iiir on paying costs.
Charles Bennett a])pears for himself and Samuel Sher
wood and claims the sundrj' articles seized for the plaintiff
t(i be his property, which he is ready to prove.
The plaintiff also declares that he is ready to prove the
contrary. The Court does order that the said proving may be
taken on Friday next, the .'Ird inst.

John Ferguson
VS.
Philip Dorland.

John Fanier
vs.
Rich'd Cartwright.
(From last term.)

The Sheriif returned that he has duly served the e-vecu-
tion to him direct on judgment obtained in this cause the
last term, and that he has taken in custody all the moveables
belonging to the defendant, the whole of which are claimed
hy Tlios. Dorland as his property.
The Court order that Thomas Dorland do appear at
Ihis court to-morrow and that lie docs prove the'said move
ables tn be his propertv.
The i)laintifr appears in i^erson. The defendant also
appears. The C!ourt does order that this cause may be tried
tii-niorrow. The Court adjourn until to-morrow at ten o'clock.

The Court met pur.-uant to adjournment.
Present: James Clark and Xeil ilcLean, Esquires.

UPPEE CANADA COUET EECOEDS. 197
The defendant appears and ha.s filed the deposition John^Panier
upon oath of two of the parties who had subscribed to the Rich'dCartwright.
survey held on the work performed by the plaintiff, by
which it appears that the work was not done in a sufficient
manner. The defendant further says that he has been
under the necessity of employing other workmen to perform
and compleat the said work on board the " Lady Dorches
ter," and that he is ready to pay auy lialanee of account
that may yet remain in his hands.
The plaintiff also appears, but has nothing further to
say in support of this cause.
Thc Court upon mature deliberation considered the
arguments of the parties, and having also read and con
sidered the pleadings in this cause, likewise the evidence
produced, do order aud adjudge that the defendant be
dismissed and that the plaintiff do pay costs taxed at four
pounds, eleven shillings and sixpence.

Jno. Ferguson
vs.
Philip Dorland.

The Sheriff returned that Thomas Dorland has entered
a caveat in his office claiming the property seized by him
as per schedule annexed to the execution to him directed
the 10th day of April last.
Thomas Dorland being called to prove his said claim
produced in court an instrument in writing in the nature
of a mortgage on the principal part of the articles seized
on said execution. But the legality of it does not appear
to the Court .sufficient to be admitted a< a lawful claim to
the said property.
The plaintiff appears pursuant to order of C'ourt the .Mex'r ciark
.first inst. and exhibited to the Court an account again-t „, '^'s- ^
- " Thomas James.
the defendant for the sum specified in his declaration.
Gilbert James, appears and acknowledges that he has
no claim or title to the cattle seized by virtue of saisie on
the property of Thoins. James.
The plaintiff appears pursuant to order of yesterday Rot,'t^McAuiay
and exhibits a promissory note by defendant, which appears ^"^'^ Taylor.
to be unpaid. The defendant also appears and prays that
this cause may be tried on Monday next, as he has lost
an account necessary to prove the payment of the note.
It is ordered at the request of thc defendant that this
cause be tried on Monday next, the. 6th inst.
The Court adjourned until to-morrow at 10 o'clock.

198

UPPEE CANADA COUET EECOEDS.

FEIDAY, 3rd JULY, 1789.

Thomas Stratton
vs.
Martin Butler.

The Court met pursuant to adjournment.
Present: The three Judges.
The plaintiff appears pursuant to rule of Wednesday,,
the flrst inst., and filed four exhibits, and further declares
that he was obliged to leave the defendant's employ for
want of a sufficiency of provision to support him at work, '
and that others did also (on that account) leave the de
fendant at the same time he did; which he is ready to
prove and prays that the evidence of James Dryburgh may
be taken. It is ordered on motion of the plaintiff that
James Dryburgh be called and sworn, as evidence in this
cause. The defendant appears and says he is not indebted
to the plaintiff for wages, as they did not become due until
the plaintiff should arrive at Quebec with a raft of timber
and staves, and that the plaintiff had no just cause to
leave his employ as a stave-cutter, by which he has sus
tained material damages; and, further, that the plaintiff
always had a sufficiency of provision allowed him while in
his employ, which he is ready to prove, and prays that the
evidence of Charles Bennett may be taken.
It is ordered, on motion of the defendant, that Charles
Bennett be called and sworn as prayed. The deposition of
Charles Bennett is taken as ordered.
The parties having been fully heard this day and evi
dence taken for them, the Court not being yet determined
of giving their judgment of and concerning the premises,
it is considered that the same be taken into deliberation.
The Court adjourn until to-morrow at 10 o'clock.

Thomas Stratton
vs.
Martin Butler.

SATUEDAY, 4th JULY, 1789.
The Court met pursuant to adjournment.
Present : The three Judges.
The Court having duly considered the evidence in tiiis
cause are of opinion that the plaintiff's claim ought not to
be allowed and that the defendant be dismissed with costs,
taxed at six pounds eleven shillings. Their grounds for
this opinion are: —
1st: That the plaintiff having entered^ into an agree
ment with the defendant violated this agreement and
thereby injured the defendant in a greater degree than
the amount of the plaintiff's wages, which the Court
think on that account to be forfeited. Nor does it appear

UPPER CANADA COURT RECOEDS. 199
that the plea of necessity set up by the plaintiff fur his
breach of contract is at all supported, as from being equally
concerned with the defendant but a few days before in
the business he engaged in, he could not fail to be well
acquainted with his resources for provision, besides several
other persons engaged with the defendant continued at
work with him at the time the plaintiff alleges they were
starving, and further, though the plaintiff was urged by
Mr. Thomas Bennet to his work, the plaintiff assured him
he would if he could persuade the men that came with him
to do so likewise. It appears he did not nor intended to
do it. The plea of security for wages the Court consider
as perfect negatory, they being already allowed by the laws
a preference to all other claims.
The plaintiff's charge for linnen shirt is unjust, as
they were bought from ^less. SherAvood and Bennett and
charged by them to the defendant. The remaining
articles charged by the plaintiff in this account appear ti >
have been contracted on their joint account and the de
fendant not liable to pay the plaintiff for them till he
produces a discharge from the person of whom they bought.
The Sheriff returned the venire. Christopher -^
The plaintiff appears pursuant to order of Wednesday, va,
the first inst. The defendant also appears. Haseiton .^eencer.
The plaintiff demands of the defendant the sum of
twenty pounds for damages in not receiving cash that was
their due on account to purchase wheat, and for this he
puts himself on the country.
The defendant acknowledges *the sum of seven pounds.
five shUlings and threepence to be due the plaintiff and
alleges that he has made frequent efforts to procure cash
to pay the plaintiff, but found it totally out of his power
to procure. That he had frequently made several offers
of other species of payment, and, further, that he had this
day offered him that sum in cash, which thc plaintiff re
fused, and as the defendant does not think the plaintiff
entitled to more he also puts himself on the country.
The jury impannelled and sworn to ti-y this cause were :

1.

James Eobins.

7.

Samuel Ainsley.

2.

Halon Knight.

8.

Richard Campbell,

3.

Arthur Orser.

9.

James Hawley.

4.

Thomas Cook.

10.

James Pritchard.

5.

Jno. Duncan.

11.

Charles Bennett.

6.

PhU. Pember.

12.

Alexander Clark.

The jury being charged to say and declare the truth of
the matter conLained in the said declaration, and having

200 UPPER CANADA COL'RT EECOEDS.
examined the pleading and exhibits filed in this cause,
withdraw to consider of their verdict, and the said jury
having returned into court and being now called over, say
by James Eobins, their foreman, that the defendant is
directed to pay thc sum of seven pounds, five shiUings
and threepence, with fifteen shillings costs, supposed to be
the costs attending a suit for said sum on the weekly court.
The Court having considered the verdict, do order that
the defendant shall pay the said sum as awarded by the
jury, and that the plaintiff pay the remaining costs of
three pounds nineteen shillings and threepence.
The Court adjourn to Monday next, the sixth inst.

MONDAY, 6th JULY.
The Court met pursuant to adjournment.
Present: Eichard Cartwright and Neil McLean,
Esquires.
GeorgMn ^"^ The plaintiff appears pursuant to order of Wednesday
john'^Howard. ^^®*' ^^^ ^^®* ^'^^^¦' ^^'^ declares that the defendant in the
months of July and December, in the year 1787, did pro
mise and agree to deliver the plaintiff' fifty bushels of good
and merchantable wheat before thc first clay of March fol
lowing. In consideration of which the plaintiff has de
livered the defendant sundry merchandise, etc., in fuU for
the aforesaid wheat; and. further, that as the defendant did
not furnish the quantity of wheat at the time above men
tioned, he did in the fall- of '88 promise to compleat the
quantity already agreed for.
The defendant also appears and acknowledges to have
promised the plaintiff some wheat, but denies having agreed
for any certain quantity, and that he has delivered the
plaintiff wheat at different times ; further, that in the fall
of 1788, he duly promised him wheat conditionally that, if
he had it to spare, he would let thc plaintiff have it.
The plaintiff in his replication says that the quantity
specified in his declaration was jiositively agreed for, like
wise that the defendant had agreed in the faU of '88 to
furnish the deficiency, which he is ready to prove, and
accordingly puts himself on the country. The defendant
doth do likewise.
The Sheriff returned tlie venire.
The jury empanneUed and sworn to try this issue for
this cause were : —
1. :\ric'l. Dedrick. 3. Peter Wartman.
2. John Mosier. 4. Geo. Harper.

UPPEE CANADA COURT EECOEDS. 201

5. Wm. Ashley. 9. Aaron Lrewer.
6. Jno. Fanis. 10. John Warner.
7. Thos. Bennett. 11. Geo. Gallaway.
8. John Most. 12. John Wartman.
Who being charged to say aud declare the truth of tho
matter contained in the said declaration, and having ex
amined thc pleading and exhibits filed in this cause, and
heard the evidence on both sides, withdrew to consider of
their verdict, and the said jury having returned into
court and being now called over, sa}' by George Gallaway,
their foreman, that the plaintiff shall allow the defendant
at the rate of '4s. 6d. per bushel for wheat, 3s. 6d. por
bushel for rye, 3s. 6d. per bushel for corn, 2s. 6d. per
bushel for oats, 2s. per bu.shel for potatoes, for the quantitj-
he has accounted, and that thc defendant shall ]iay thc
plaintiff the sum of se\-en pounds, seventeen shillings and
threepence halfpenny, being the balance of his account,
with five pounds- damages, Tor expenses incurred by the
plaintiff at different times going for wheat and potatoes
promised him.
The Court having considered the verdict of the jury do
adjudge that the defendant do jiay the plaintiff the sum
of twelve pounds, seventeen shillings and threepence half
penny, with costs of suit, taxed at nine pounds, eight shil
lings and fivepence currency.
The Court adjourn until to-morrow at ten o'clock.
The defendant appeared according to rule of Court on Robt. Macaulay
Thursday last and produces an account against the said John "Taylor.
Thomas Fitsimmons.
The plaintiff also appears and informs the Court that
the said promissory note has been often presented to the
defendant for payment, and that the defendant never did at .
any time previous to his being summoned mention any
account he had against the said Thomas Fitsimmons.
The Court are of opinion that the defendant shall pay
the plaintiff the said sum of twelve pounds with lawful in
terest and costs of this suit, taxed at two pounds, nineteen
shillings and sevenpence.
The Court adjourn to to-morrow at ten o'clock.
TUESDAY, 7th .JULY, 178«.
The Court met pursuant to adjournment.
Present : The three Judges.
The plaintiff appears pur.suant to order of the first inst. .uex'r sim.<on
Jind declares that the defendant is justly indebted to him in Barbl^' Day.
15a

¦•V2 UPPEE CAN.VDA COUET RECOEDS.
the sum of twenty pounds for sundries furnished him on
account and for labour done for the defendant at different
times, and for this he puts himself on the country.
The defendant also appears and declares that he is not
indebted to the plaintiff in any sum, and for this he puts
himself on the country.
The Sheriff returned the venire.
The Jury empanneUed and sworn to try issue joined
in this cause were : —
1. J. Jost Harkimer. 7. David Brass.
2. Joseph Forsyth. 8. Willm. Aitkinson.
3. Geo. Farley. 9. Laur'e. Harkimer.
4. Thos. McFariand. 10. Peter Smith.
5. Alex'r. Aitkin. ]1. Nath'l. Lines.
6. Mic'l Grass. ] 2. Wm. Johnson.
Who being charged to say and declare the truth of the
matter contained in the said declaration, and having ex
amined the pleadings, and exhibits filed in this cause, and
heard the evidence on both sides, and the said jury having
returned into court and being called by their foreman,
Mr. Jos. Forsyth, say that the defendant shall pay the
plaintiff the sum of six pounds ahd sevenpence, together
with ten shillings and tenpence costs, and that the plaintiff
shall pay  .
The Court having considered the verdict of the jury
do order accordingly that the plaintiff shall recover of the
defendant the said sum of six pounds and sevenpence, with
ten shillings and tenpence costs, and that the plaintiff do
pay the remaining costs of this suit, taxed at six pounds
fifteen shillings and eightpence.
WEDNESDAY, Sth JULY.
The Court met pursuant to adjournment.
Present: Neil McLean and Jaines Clark, Esquires.
ys.^ The plaintiff appears pursuant to order of Wednesday,
the first inst., and informs the Court that his demand on
the defendant is only for the sum of twenty-one ,pounds
fourteen shillings and threepence currency, for which sum
he produces drafts endorsed by the defendant which ap
pear to be yet unpaid. The plaintiff further says that the
said bills were taken by him in order to receive value for
them on account of the defendant from the person on
whom they were drawn, and that the plaintiff had used

Alex'r Grant.

UPPER CANADA COURT RECORDS.

203

every means to procure payment, but that he had never
received any part of it, therefore prays judgment may be
obtained against the defendant for said sum. The
plaintiff also informs the Court that he took the earliest
opportunity to inform the defendant of the non-acceptance
of ^aid drafts which appears by copy of a letter exhibited in
court, dated 28th March, '87, and it appears to the Court
that hp,d the defendant kept these drafts in his own posses
sion they could not have been recovere'l. That the de
fendant was formerly a sergeant in I. John Patisson's Batt.,
and at the time that regiment was reduced the defen
dant left his place, and from that time until the date said
letter was wrote the plaintiff was not informed of his place
of residence. The defendant being again duly called made default.
The Court having examined the draft exhibited filed in
this cause do order that the plaintiff shall recover of
the defendant the sum of twenty-one pounds, fourteen shil
lings and threepence, together with costs taxed at three
pounds, three shillings and threepence.

The plaintiff appears and prays that this cause may
be tried on Monday next. The Court orders that this
cause may be tried as prayed.

Thomas Sparham
vs.
John Ferguson.

MONDAY, 13th JULY.
The court met pursuant to adjournment.
Present: Eichard Cartwright and Neil McLean,
Esquires. The plaintiff appears pursuant to order of Wednesday Thomas sparham
last. The defendant being called, it appears to the Court John Ferguson.
that from sickness the defendant could not attend. It is
therefore considered that the cause may be tried on Wed
nesday, 16th Sept., next term.
The Court f.djourned to AVedncsday, 16th Sept.

WEDNESDAY, 16th SEPTEMBER.
Present: Eichard Cartwright and Neil McLean,
Judge'5.

SEiPTBMBER
TERM.

The Sheriff returned that he has summoned the defen
dant. The plaintiff being duly called does not appear.

John Ferguson
vs.
JohnCIunes.

The Sheriff returned that he has summoned the defen- James Conner
^^Tit. Qeo. Singleton.

204 UPPEE CANADA COURT RECORDS.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.
Samuel Sherwood The Sheriff returned that he has summoned the de-
Israell'Perguson. fendant. Thc plaintiff being duly called does not appear.
Thomas Sparham rpj^g plaintiff being called does not appear.
John Ferguson.
(Prom last Term.) The Court acljourncd to Wednesday, the 23rd inst.

WEDNESDAY, -.'Srd SEPT., 1789.
The Court met pursuant to adjournment.
Present: Eichard Cartwright and Neil McLean,
Esquires.
John^ Ferguson r^.j^^ gj^g^.^^ returned that he has by virtue of an execu-
Phii. Dorland. tion to him directed taken the issued lands of the said Phil.
Dorland, consisting of, etc.
James Connor rpj^g defendant being this day called pursuant of Eule
Geo. Singleton. of Court on Wednesday last, it appears by a certificate
exhibited and filed that the defendant is incapable of at
tending from sickness.
The plaintiff prays that this cause may be ordered for
trial on the first day of next term.
The Court do order it accordingly.
A petition has this day been exhibited and filed by
Jno. Jost Harkimer in behalf of himself and Thoms. Busby,
praying of the Court that the property of Lawrence Eldman
may be seized to satisfy them and other creditors for the
just debts of said Eldman. The Court declined for the
present making any order thereon, because Eich'd. Cart
wright, one of the judges, being interested, as one of the
creditors. The Court adjourned to Wednesday the 30th inst.

WEDNESDAY, 30th SEPTEMBEE.
The Court met pursuant to adjournment.
Present: The same Judges.
The Court adjourned to Friday the first day of January
ne.vt.

UPPER CANADA COURT RECORDS.

205

SATUEDAY, THE 2nd DAY OF JANUARY, 1790.
The Court met pursuant to adjournment.
Present: Tho Honourable Richard Cartwright and the
Honourable Neil McLean, Esquires.
The Sheriff returned that he has duly summoned
the defendant.
The plaintiff appears and filed his declaration.
The defendant being called made default.
The plaintiff prays that the default may be recorded.
The Court do order that same be recorded.
The Sheriff returned that he has duly summoned
the defendant.
Thc plaintiff appears in person and filed his declara
tion. The defendant also appears.
•The plaintiff produces the defendant's note of hand
payable the 14th day of October last for the sum of fifteen
pounds. The defendant produces an order from Lt. Robt.
Mackworth for a horse, carriole and harness, cushions, etc.,
left with the plaintiff for sale, and for which the defendant
gave his note of hand to the plaintiff, which order the
plaintiff allows to have been tendered to him by the de
fendant previous to his coming to court.
The plaintiff, being examined on oath, declares that
Mr. Mackworth being in his debt, he would not have de
livered the articles above mentioned to Mr. Mackworth's
order even had he not have disposed of them, and conse
quently not the note he seized for the sale of them.
Philip P. Lansingh, Esq., being sworn at thc request
of the defendant, deposeth that the plaintiff told him on
¦ producing Mr. Mackworth's order that Mr. Mackworth was
not indebted to him and that he might safely advance him
six pounds. On question by the plaintiff the deponent acknowledges
that he did not produce Mr. Mackworth's order to the
plaintiff till the day after Mr. Mackworth's departure, but
persists in affirming that the plaintiff told him Mr. ilack-
worth was not in debt.
The Court does order that the plaintiff shall produce his
account with Robert Mackworth on Friday next, the 8th
inst., and that judgment shall be given in this cause on that
dav.

OOUHT OP
COMMON PI.EAS.

John Jost
Herkimer vs.
Lawr'e Eldman.

Peter Clark
vs.
James Connor.

The Court adjourned to Friday next.

206

UPPER CANADA COUET EECOEDS.

FEIDAY, Sth JANUARY, 1790.
The Court met pursuant to adjournment.
Present: The same Judges.

Peter Clark
TS.
James Connor.
(Prom Saturday
last.)

The plaintiff appears in person and filed replication.
The defendant being called, P. Lansing, Esq., appears
and informs the Court that the defendant is not able to
attend from sickness.
The Court therefore order that judgment may be given
in tliis cause on Monday next.

Feter Clark
vs.
¦WUliam Bell.

The Sheriff returned that he has duly summoned
the defendant.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.
The plaintiff prays that the default be recorded.
The Court order that default be recorded and that the
defendant be called 011 Friday next and that judgment
may be given in this cause.

Messrs. MoAuley
& Markland vs.
tMoore Wolvende
Hovenden.

The Sheriff returned that the defendant was duly
summoned. The plaintiff appears and fUed declaration.
The defendant made default.
The plaintiff prays that default be recorded.
The Court order that the default be recorded and that
this cause may be heard on Friday next.

John Ferguson
va.
Alex'r Fisher.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff being called does not appear.
The defendant appears in person and prays that this
cause be dismissed with costs to be paid by the plaintiff,
taxed at three pounds, one shilling and eightpence.
The Court adjourn until to-morrow at ten o'clock.

SATURDAY, 9th JANUARY.
The Court met pursuant to adjournment.
Present : The same Judges.

John Jost
Harkimer vs.
Lawrence Eldam.
(Prom Saturday
last.)

The plaintiff appears in person.
The defendant being again called made default.
The Court do therefore proceed to examine the demand
of the plaintiff.
The plaintiff exhibits an account amounting to the sum
of nineteen pounds, eighteen shillings and eightpence, to

UPPER CANADA COURT RECORDS. 20;
which amount is included a charge of three pounds, fifteen
shUlinga for Thos. Busby which does not appear to be duly
authenticated and attested.
The Court do order that the same be deducted, and the
plaintiff having made oath that the balance of sixteen
pounds, three shiUings and eightpence is justly due him
by the defendant, adjudge that the defendant shall pay the
plaintiff the aforesaid sum of sixteen pounds, three shillings
and eightpence, together with costs of suit taxed at three
pounds, six shillings and ninepence.
The Court adjourned to Monday next.
MONDAY, 11th JANUARY.
The Court met pursuant to adjournment.
Present; The same Judges.
Brought on from Saturday last. ' ^eter^ciark
The Court having duly considered the merits of this James Connor.
cause do dismiss the suit with ordering that the defendant (Prom Saturday
do pay .fifteen shillings and ninepence costs, that amount
having been incurred previous to his tendering Lieut.
Mackworth's order to the plaintiff in discharge of his (the
defendant's) note, the remaining sum of forty-five shillings
costs in this suit to be paid by the plaintiff.
The reasons on which they ground their decision are
as follows: —
It appears by his own avowal that the plaintiff was agent
for Eobt. Mackworth in disposing of a horse, carriole and
harness, for which the note of hand in question was given.
It appears also by the order given by Lieut. Mackworth to
P. Lansing, Esq., and by him endorsed to the defendant
that it was the intention of the said, Mackworth to take the
said property or proceeds thereof out of the plaintiff's
hands and commit it to the disposal of the said Lansingh,
and on this ground they think the order a fair and equit
able sett off against the note, as it must of course discharge
the plaintiff from any claim against him by his principal.
And whereas the plaintiff did allege that Lt. Mackworth,
the proprietor of the effects in question, was in his debt,
and that were he to part with the proceeds he should lose
his debt. The Court thought it reasonable that he should be
allowed so much as would indemnify him, and with this
intent did order that he should produce the state of said
debt in Court, but he not having complied with said order,
on excuses that appear frivolous and even imply a con
tempt of Court, they must consider his allegations as ill-
founded.

¦208 UPPEE CANADA COUET EECOEDS.
Peter Shultz rj-jje Sheriff returned that he has summoned the
vs.
¦sviiiiam Carsons. defendant. The plaintiff' appears in person and filed declaration.
The defendant also appears in person, and informs the
Court that ho did not take any advantage of the plaintiff
as alleged by him in said declaration, but that the plaintiff
made proposal to him that he should take his lands and
tenements and all his property whatsoever in consideration
of his taking him into his family and maintaining him
during his life, and that he^lid not take advantage of his
bad health or his being insensible, as alleged by the plain
tiff, but that the plaintiff understood the agreement between
them and was weU satisfied therewith, and further with
respect to the value of said property the sum stated in the
declaration exceeds the real value, as the quantity of several
of the articles are exaggerated and no certain quantity was
ever ascertained, and all this he is ready to prove.
The plaintiff' further informs the Court and persists in
affirming that he never did propose any agreement in the
manner stated by the defendant, but that the defendant
came to the plaintiff's house and asked him to take some
liquor and brought a writ (P) with him which he asked
the plaintiff to sign, and said the purport of it was that he
should take him to his (thc defendant's) house and that
he would take care of him and furnish him with necessaries
during his illness, that the plaintiff should satisfy him for
his trouble and expense, if he should recover his health, and
that if he died he should leave him all his property, and.
further, the plaintiff desired the defendant to defer execut
ing any writings until he (the plaintiff) should be in
better health, but the defendant urging him to sign the
paper he had brought with him, the plaintiff did put his
hand to the pen without knowing what he was doing, or
the contents of the said paper, and after this he removed
to the defendant's house, but as soon as he recovered liif^
health he proposed satisfying the defendant and returning
to his own house. Upon which the defendant threatened
to stick him through thc body with a pitchfork and said
he would set fire to the house it he did return to it, and
during his stay at the defendant's house he was ill-used and
treated as a slave, all of which he is ready to prove.
The depositions of Nathaniel Hale, Edward Hicks,
Andrew Hesse, and Francis Keefer were taken and the same
are duly filed. The agreement and bonds in this cause are
also filed.

The Court adjourned to Friday next, the 15th inst.

UPPEE CANADA COUET EECOEDS.

209

FEIDAY, 15th JANUAEY.
The Court met pursuant to adjournment.
Present: The same Judges.
It appears upon considering the evidence in this cause
that the plaintiff's allegation is ill-founded, and that his
agreement with the defendant was executed with due de
liberation and for a good consideration, the court do there
fore consider the defendant as ha\ing a just right to every
part of the plaintiff's property expressly conveyed to him,
but no other, and he therefore can have no claim upon any
money, or clothes of the plaintiff or any debts due to him.
And as it further appears to have been the intention of the
parties that the plaintiff by the cession of his property to
the defendant should procure himself a comfortable asylum
in the plaintiff''s family for the rest of his life, the Court
to adjudge that the defendant shall enter into bond for him
self and his heirs under the penalty of £200, that he will
not beat or otherwise ill-treat the plaintiff, nOr require of
him more than moderate labour, but that he will find and
provide for him sufficient meat, drink, clothing, waiting
and lodging, in sickness and in health, and at his death
give him decent burial.
And whereas it does not appear to the Court that the
defendant hath hitherto violated any of the above conditions
respecting the plaintiff they do therefore adjudge that the
defendant be dismissed from this action and that thc ]ilain-
tiff pay the costs taxed at eight pounds, tweh'o shillings
and one penny.

Peter Shultz
vs.
"William. Carsons.
(Prom Monday
last.)

The plaintiff appears in person. The defendant being
again duly called this day made d'efault.
The plaintiff produces and filed an obligation of thc
defendant for the amount of one hundred and twenty
pounds currency, as part of his demand against the de
fendant, he likewisie exhibits and filed an account currcnc}-
by which there appears to, be a balance of fifteen pounds,
thirteen shillings and sixpence coming to thc plaintiff',
which sum the plaintiff makes oath to be justly due to
them by the defendant, and there likewise appears to be thc
further sum of twenty-six pounds, nineteen shillings due
to the plaintiff for interest on the aforesaid obligation.
The Court do therefore order and adjudge that the
plaintiff shall recover of the defendant the sum of one hun
dred and thirty-five pounds, thirteen shillings and sixpence
for his said debt, and the further sum of twenty-six pounds

Robert iMacaulay
and Thomas
Markland vs.
Moore W.
Hovenden. (From Friday
last.)

210

UPPEE CANADA COUET EECORDS.

nineteen shillings for interest on the said obUgation. In
all amounts to the sum of one hundred and sixty-two
pounds, twelve shillings and sixpence, with cost of suit
taxed six pounds, seventeen shillings and sevenpence.

Peter Clark
vs.
WUliam Bell.
(Prom Friday
last)

The defendant being again called this day made default.
The plaintiff appears in person and exhibits a written
acknowledgement of the defendant for five pounds, like
wise a promissory note for the sum of seven pounds, eight
shillings and eightpence, in all amounting to the sum of
twelve pounds, eight shiUings and eightpence.
The Court do order and adjudge that the plaintiff shaU
recover of the defendant the sum of twelve pounds, eight
shUlings and eightpence currency, with costs of suit taxed
at three pounds, five shiUings and tenpence.
The Court adjourned to Tuesday, the 16th day of March
next.
MARCH TERM.

MARCH TERM.

John Jost
Harkimer vs.
Lawrence Bldam.

TUESDAY, 16th MARCH, 1790.
The Court met pursuant to adjournment.
Present : The two Judges.
The plaintiff having obtained an execution against the
goods and chattels, lands, and tenements of the defendant
for judgment obtained the Sth day of Januarj^ last, the
Sheriff returned that the defendant had not any goods or
chattels that he could find -within his district, whereof he
could levy any part of said judgment, as by the said execu
tion he was commanded.

Messrs. iMacauley
& nVDarkland vs.
Moore W.
Hovendon.

The plaintiff having obtained an execution against the
goods and chattels, lands and tenements of the defendant,
for judgment obtained the 15th January last, the Sheriff
returned that the defendant has not any goods or chattels
that he could find within his district whereof he could levy
any part of said judgment as by the said execution! he is
commanded.

Joseph Allen
vs.
Titus Simons.

The Sheriff returned that he has duly summoned the
defendant to appear this day.
The plaintiff appears in person, and filed declaration.
The defendant also appears in person and denies that
he is indebted to the plaintiff as set forth in said declara
tion.

UPPER CANADA COURT RECORDS.

211

It does not appear to the Court that the parties are
prepared to satisfy them in this cause. They therefore order
that this cause may be tried on Thursday, the 25th inst.
The Sheriff returned that he has duly summoned the
defendant to appear this day.
The plaintiff appears in person and filed declaration.
The plaintiff prays that this cause may be tried on
Tuesday next.
The Court order that this cause may be tried as prayed.
The Court adjourned to Tuesday next, the 23rd inst.

Joseph Forsyth
vs.
Geo. Pinkie, Jun.

TUESDAY, 23rd MARCH.
Present: Eichard Cartwright, Esq.
The Sheriff returned that he has duly summoned the James ciark, jun.,
defendant to appear this day. John^cascaiiion.
The Sheriff returned that he has duly summoned the James ciark, jun.,
^ vs.
defendant to appear this day. Titus simons.
The Sheriff returned that he has duly summoned the wiiiiam Terks
defendant to appear this day. By consent of the parties Joseph camahan.
this cause will be tried on Friday, the 2nd July.
Neil McLean, Esq., one of the Judges, being unable
to attend from sickness, no business can be done.

inst.

The Court adjourned to Thursday next, the twenty-fifth

THUESDAY, 25th MAECH.

Present: Eichard Cartwright, Esq.; Neil McLean.
Esq. The plaintiff appears and produces the defendant's pro
missory note for the sum demanded in the declaration.
Phil. Lansingh appears for the defendant and produced
^ a certificate from Jac. Gill, Jun., of the defendant's Ul-
state of health, which prevents his appearance, and prays
that this cause may be tried next term.
The Court does order that this cause may be tried on
Thursday, the first day of July next.
The plaintiff appears and filed declaration.
The defendant being duly called made default.
The plaintiff prays that the default may be recorded.

James Clark, Jun.,
vs.
John Cascallion.
(Prom Tuesday
last.)

James Clark
vs.
Titus Simons.
(Prom last adjt.)

¦212 UPPEE CANADA COUET EECORDS.
The Court so orders.
The defendant now appears and prays that the default
may be taken off.
The plaintiff exhibits to the Court the defendant's pro
missory notes payable to George Peter Hoyle or order for
the sum set forth in the declaration, endorsed to Jas. Clark,
Esq., or order, for value received in account.
The defendant appears in person and pleads that the
said notes are endorsed payable to James Clark, Esq., and
that the plaintiff in this cause is not the said Jas. Clark,
Esq. The plaintiff produces a power of attorney from James
Clark, Esq., constituting him his agent, to transact his busi
ness in general.
The Court orders that the}' will consider further the
merits of this cause and determine the plaintiff's right to
recover the said debt on Saturday next; another judgment
will then be given in this cause.
Frederick Romer rpj^^ gj^gj.jjj j.p^.^j.jjgj ^i^^^ j^^ has duly Summoned the
johnDingman. defendant to appear this day.
The plaintiff appears and filed declaration.
The defendant also appears in person and exhibits and
filed a written agreement made between the parties, Peter
Collier and James Williams being called and sworn.
The defendant informs the Court that the plaintiff' has
no just grounds for the complaint set forth in the declara
tion, but that he has at all times used the plaintiff well and
licrformed every part of his agreement with the plaintiff,
notwithstanding that the plaintiff has often behaved in a
very unbecoming manner to him and his wife, and has often
without any provocation called him liar and other oppro
brious names, and has complained that he wanted provi-
sion.^ without any cause.
The Court having heard the parties and the evidence in
this cause do consider that the plaintiff has no just grounds
for complaint ; they do therefore order this cause to be dis
missed with costs to be ])aid by the plaintiff.

vs.
Titus .Simons

Joseph .Mien The plaintiff appears in person and prays that a special
jury may be summoned to try thi^ cause on Saturday, the
2rth ins-t.
The Court docs order that a venire may be tssued as
prayed. The Court adjourned to Saturday next.

UPPER CANADA COURT RKC:OEDS.

213

SATURDAY, 27th MARCH.
The Court met pursuant to adjournment.
Present: The same Judges.

Brought on from last adjournment.
The Court having duly considered the merit.- of the
defendant's plea are of the opinion that the cause be dis
missed: 1st, because the power of attorney produced by the
" plaintiff is not legally authentic, there being no subscribing
witness to the execution thereof. 2nd, admitting it to
have been authentic, it remains a doubt whether it would
authorize the plaintiff to prosecute on this case, the notes
being endorsed particularly to James Clark, Esq. It would
appear that his endorsement would be necessary to author
ise the claim of any other person. ¦¦ 3rd, the declaration
ought in all events to have been laid in the name of the
principal, not of the agent.

James Clark
vs.
Titus Simons.
(Prom last adjt.)

The Sheriff returned that he has duly summoned the Joseph Alien
jury as per pannel annexed to the venire. Titus^simons.
The plaintiff appears in person. (p^,„^ i^t ^a^t^
The defendant also appears in person.

The jury called and
1. Joseph Forsyth.
2. Geo. Farley.
3. Don'l. McDoneU.
4. Jno. Symington.
5. Arch. Thomson.
6. Thomas Markland.

•worn were : —

7. >Tno. Ferguson.
8. John Jost Harkimer
9. James Richardson.
10. Nat'l. Lyons.
11. David Brass.
12. .Tames Eobins.

Witnesses for the plaintiff .sworn: WiU'm. Bell, John
JlcMann. Witness for defendant: Gilbert Sharp.
The jury retired to consider of their verdict, aud having
returned into court, by their foreman, Joseph Forsyth, say
that for want of sufficient evidence that they decline
giving any verdict at present, as they do not think they can
do it with justice to the parties.
The Court do order that the jury do again withdraw tn
consider further on their verdict.
The jury having again withdrawn to consider on their
verdict, returned into court, and by their foreman, Joseph
Forsyth, say that the plaintiff has not substantiated his
demand of one hundred and twenty-three pounds against
the defendant, and that the defendant is not indebted to
the plaintiff that sura, but that the defendant is indebted

214

UPPEE CANADA COUET EECOEDS.

to the plaintiff a greater sum than the amount of the de
fendant's promissory note exhibited in court.
The jury having again retired to consider their verdict,
returned into court.
The plaintiff being duly called made default.
The Court ordered that the jury be discharged without
giving their verdict, and that this cause be dismissed with
costs to be paid by the plaintiff.
TUESDAY, 30th MAECH.
The Court met pursuant to adjournment.
Present : The same Judges.
The Court adjourned until to-morrow.

Messrs. Macauley
& Markland re.
James Connor.

WEDNESDAY, 31st MAECH.
The Court met pursuant to adjournment.
Present : The same Judges.
The Sheriff returned that he has duly summoned the
defendant to appear this day.
Thomas Markland appears for the plaintiff and filed de
claration, stating that the defendant is indebted to the
plaintiff the sum of forty-three pounds, eighteen shUlings
currency for balance of account due them.
The defendant appears in person and states that the
accounts rendered him by the plaintiffs were very inaccu
rate, and many charges made against him which he could
not agree to settle in the state it was rendered him, and
that the overcharges amount to one pound, eleven shillings
and sixpence. The defendant further declares that he is
not indebted to the plaintiffs, but that there is a balance
due him and produces an account against Eobt. Macauley
for medicine and attendance, amounting to the sum of fifty
pounds. The plaintiffs, on question by the Court, says that he
does not conceive the house of Macauley and Markland to
be liable for any private debt contracted by either of them,
and, further, that Eobert Macauley has a private account
.igainst the defendant not included in the amount set forth
in the declaration.
It is the opinion of the Court that they will require time
to deliberate on the merits of this cause, do order that the
parties may appear in this court of Common Pleas on
Thursday, the first day of July next.
The Court adjourned to Thursday, the first day of July
next.

UPPEE CANADA COUET RECORDS.

215

THURSDAY, JULY 1st, 1790.

JULY TERM.

The Court met pursuant to adjournment.
Present: The Honourable Richard Cartwright, Jun.,
and the Honourable Neil McLean, Esquires.

The Sheriff returned that he has duly summoned the
defendant to appear this day.
The plaintiff appears in person and prays the Court
that this cause may be tried next term because the evi
dences that he has subpoenaed do not appear, which are
material to this cause.
The defendant also appears in person and prays that this
cause may be tried at a short day this term, because it is
the plaintiff's business to be ready for trial.
On motion of the plaintiff the Court does order that
this cause may le tried on the first day of September term
next, as it does not appear that there has been any neglect
on the plaintiff's side to procure the necessary evidences.

Joseph Allen
Plaintiff, vs.
Titus Simons,
Defendant.

The Sheriff returned, that he has duly summoned the
defendant to appear this day.
The parties being called it appears to the Court by
evidence that the plaintiff cannot attend from sickness. The
Court does order that this cause may be tried on Saturday
next.

James Robins,
Plaintiff, vs.
¦Wlllett Casey,
Defendant.

The Sheriff returned that he has duly summoned the pfjntiff °"*'
defendant by having left a true copy of the writ and de- ''^•„'
1 i- ¦ ji 1 -I » .,,!,, Law'e Eldam,
Claration in the hands ot a grown person at the late place Defendant.
of dwelling of the defendant.
William Me Vay, Esq., appears for the plaintiff and pro
duces and filed his power of attorney, which is admitted hy
the Court.
The defendant being duly called made default.
The attorney for the plaintiff prays that default may be
recorded. The Court do order that the default is recorded accord
ingly.

A writ of capias having been issued against the body .\iien McLean,
of the defendant, the Sheriff returned that he has taken the pi^'^^J^-
-body of defendant. g^Jendant^'"''''
The"^plaintiff appears in person.
James Clark, Junr., appears for the defendant and
produced a power of attorney which the Court do consider

216

UPPER CANADA COUET EECOEDS.

to be sufficiently authentic, and prays the Court that
whereas the plaintiff has never delivered a copy of the de^
claration as required by law, by which reason the defendant
cannot be ready for trial, therefore, prays that the Court
may order this cause for next term.
On motion of the defendant the Court do order that this
cause may be tried the first day of September term next.

John Jost
Harkimer,Plaintiff, vs.
Lawrence Eldam,
Defendant.

The Court having issued execution against the lands
and tenements of the defendant, the Sheriff has returned
that he has seized as belonging to the defendant a lot of
land in the First Township No. 23, containing 100 acres,
and has duly authorised the same for sale on Tuesday, the
20th day of July instant.

Messrs. McAuley
& [Markland vs.
Moore Wols'e
Hovendon.

Execution having issued against the lands and tene
ments of the defendant, the Sheriff returned that he has
seized as belonging to the defendant three different lots of
land lying on the carrj-ing place. Little Lake, viz., one-half
of lot No. 20, consisting of 100 acres; lot No. "Jl, consist
ing of 200 acres; and lot No. 22, consisting ef '-200 acres,
in all five hundred acres of land, which remain unsold by
reason of a caveat being lodged in his office on tlie 16th
day of April last by Mr. Joseph Allen, claiming the said
lands to be his property, and that he waits the further de
termination of the Court thereon.
The Court do order that the said Joseph Allen's title to
the said lands shall be tried on Thursday, the fifteenth
inst.

Robt. Hamilton
and Rich'd Cart
wright, Merchants,
Plaintiffs, vs.
Alexander Grant,
Defendant.

Execution having issued against the goods and chattels,
lands and tenements of the defendant, the Shfjriff returned
that the defendant has no goods or chattels, lands or tene
ments in his district whereon he could levy any part of the
debt or costs as commanded him to do.

Macauley & Mark-
land. Plaintiffs,
vs.
James Connor,
Defendant. (From March
Term last.)

The plaintiffs appear in person.
The defendant being duly called made default.
The plaintiff prays that his objection of the 30th insi
may be withdrawn, and that the accounts for and against
Eobt. Macaulay already exhibited and filed may be entered
and considered in this action.
The Court do accordingly order that the said accounts
may be admitted in this action as prayed and that the
action may be proceeded on these grounds.
Thc Court adjourned until to-morrow at 10 o'clock in
thc forenoon.

UPPEE CANADA COURT RECORDS.

217

FRIDAY, 2nd JULY, 1790.
The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appears in person and prays that issue may
be joined. The defendant also appears in person and objects to any
further proceedings in this action, because the original writ
has been sen'ed on him instead of a copy, and that the
Court cannot legally proceed thereon.
It appears to the Court by the evidence of the Sheriff
that the copy of the summons and declaration was duly
served on the defendant, and that he has since obtained the
original by a mistake of the Sheriff.
The defendant further objects that the plaintiff in his
declaration does not sufficiently describe the said 100 acres
of land, and that the plaintiff should point out the same
and prove his title to it.
The plaintiff informs the Court that the said land con
sists of the half of lots Nos. 21, 22 and 23, in the second
Concession of Adolphustown, which ¦were duly granted to
his deceased father, Isaac Yerks, by a certificate from
Government, which he is ready to prove.
The defendant says that he is entitled to the whole of
the said lots and that the plaintiff has no right to any part
of them, and is ready to prove the same.
The plaintiff says that in the year 1784 his father,
the late Isaac Yerks, received a certificate for one hundred
acres of land jointly with the defendant, and after making
some little improvement which was supposed necessary
for securing his title, he had occasion to take a journey
to the States in 1785. That in the meantime' he resided
in the family of the defendant, whom he left his attorney
to keep possession of the lot, suggesting that it would
be otherwise in danger of being taken from him. That
his father returned in the year 1787, and immediately
took possession of the premises and built a house thereon,
in which he lived tUl about August, 1788, at which time
he died. That, without any further authority, the defen
dant took possession of the premises and doth still hold
them to thc wrong of the lawful heir and administrators.
Evidence called by the plaintiff, viz., John German,
Christ'r German, Henry Johnson, Simon Chorly, ^liehael
Sloot, and Abraham Maby; the said witnesses were duly
sworn and their depositions taken and filed. The defen
dant sayeth that he has taken possession of the lands in
question partly in consequence of a deed of gift from the

William Yerks,
Plaintiff, vs.
Joseph Carnahan,
Defendant. (Prom 23rd
March.)

218

UPPER CANADA COURT RECORDS.

original proprietor, Isaac Yerks, and partly from consider
ing them as vacant, by Yerks relinquishing them to the
defendant's la-wyer, Mr. Knotte. Evidence) called by the
defendant, Jno. Baker, sworn and his deposition filed.
The Court will deliberate on the merit of the cause and
give judgment on Thursday next  .

SATURDAY, 3rd JULY, 1790.

Present: The same Judges.

James Robins
vs.
¦Wlllett Casey.
(From Thursday
last.)

Macaulay &
Markland vs.
Jas. Connor.

The plaintiff appears in person and produces a promis
sory note, dated the Sth day of October, '89, payable to
John Hyck or order.
The defendant also appears in person and saytth that
this cause should be dismissed with costs, because that he
is summoned by Jas. Robbins, plaintiff, and the declaration ,
is signed John Hyck, which is contrary to the ordinance
of this province.
The Court having observed the said summons and de
claration which appears to be issued in the manner stated
by the defendant they do therefore consider that this action
be dismissed with costs to the defendant, taxed at four
pounds, three shillings and threepence.
The defendant appears in person and prays that default
may be taken off, and prays that this cause may be tried on
Monday next.
The Court, by the consent of the parties, do order that
this cause may be tried as prayed.

James Robins,
Plaintiff, vs.
¦Wlllett Casey,
Defendant.

And the defendant cometh in person into this court,
and for plea in bar to the declaration of plaintiff iu this
cause or to so much thereof as is necessary for him to
answer, sayeth that the declaration and the matter therein
contained is hot sufficient in law to maintain the said
action, nor is he bound by the law of the land to answer
thereto, inasmuch as it appears that a summons has issued
for thc plaintiff against the defendant on the declaration
and prayer of John Huyek, not the plaintiff himself, which
is contrary to the ordinance of the province of the 25th of
his present Majesty's Act first, which lays down the man
ner of proceedings in action above the value of £10 sterling
in the courts of this province. Wherefor the defendant
prays to be hence dismissed, with his costs in this behalf
most unjustly sustained.
The Court adjourned to Monday next, the 5th inst.

UPPEE CANADA COURT RECORDS.

219

MONDAY, 5th JULY, 1790.
The Court met pursuant to adjournment.
Present: The same Judges.

The plaintiff, Thomas ilarkland, produces Robert
Macauley's account against the defendant for a box medi
cine, charged sixty pounds, which is by order of Court
added to the amount demanded in the declaration.
The defendant does also appear in person and alleges
that the said chest of medicine was not really worth sixty
shillings, and that no specific price was agreed on by the
parties when the said chest of medicine was delivered,
which ia not denied by the plaintiff. The plaintiff also
produces his account against Robt. Macauley for medicines
and attendance in curing a broken leg, amounting to fifty
pounds. The plaintiff objects to the said account and declares
that the charge is exhorbitant for the medicine and attend
ance that have been given.
The defendant, in this case, alleges that his charge is
not extravagant nor without a precedent, and that the cure
he performed was of a dangerous nature and that he is
justly entitled to the amount he demands for the said
cure. Mr. Joseph Forsyth being called by the defendant, upon
oath declares that he heard it publickly reported in Mon
treal that Mr. Murray had paid Doctor Bleak fifty pounds
for curing a broken leg, which was aUowed by the Court
in that district.
The Court do not consider themselves competent to
judge of the nature of the defendant's charge without con
sulting the opinion of professional men upon the subject.
and do therefore call upon Jas. Latham and James Gill,
surgeons, for their opinion.
On question by the Court : ilr. Latham says he has
not attended cases of this kind in this province, and that
their charges generally depend on the circumstances of the
patient ; that he has known from two pounds to one hun
dred guineas paid for cures of that kind.
Question by the Court : On considering aU the circum
stances in this case, as a professional man, what would you
think yourself entitled to charge? Mr. Latham answers
that he would think himself verj' honourably paid by thirty
guineas. Question of Court: Would you think yourself entitled
to charge so much? Answered that he certainly would.

Messrs. Macauley
& Markland va.
James Connor.
(Prom Saturday
lasrt.)

¦220

UPPER CANADA COURT RECORDS.

Question by the Court to Jaines Gill: Have you at
tended cases of the nature of that now before the Court, in
this province ?
Answer: I have not attended any but amongst
.soldiers. Question by the Court: Are you not acquainted what
charges are made in suit cases by professional men in this
province ?
Answer : That he has knoAvii from ten to seventy pounds
charged, according to circumstances.
Question by the Court : AVhat would you think yourself
entitled to charge for a case of this kind, considering all
the circumstances ?
Answer: That he would charge at least ten pounds for
each fracture.
Question by the Court: Do you include anything for
medicine in the charge you have mentioned?
Answer : That he does not include anything for medi
cine, but merely for reducing the fracture.
The Court having heard the parties and the evidence
in this case, will take timei to deliberate ouithe merits and
give judgment on Thursday next.
The Court adjourned to Thursday next.
THURSDAY, Sth JULY. 1790.

William Yerks
vs.
Joseph Carnaham.

Messrs. Macauley
& Markland vs.
James Connor.

John Ferguson
vs.
Abe. Fisher.

The Court met pursuant to adjournment.
Present : The same Judges.
Thc Court having duly considered, the merits of this
action do order and adjudge that the plaintiff William
Yerks be put in possession of the premises in the space of
one month, that is to say, the whole of lots Nos. 23, and
such moiety of No. 22 as shall be equal to the full haU of
the whole three lots Nos. 21, 2-2 and 23, and that the de
fendant do pay the costs of this suit, taxed at £7 Ss. lid.
The Court having duly considered the merits of this
action do order and adjudge that the plaintiff shall recover
of the defendant the full sum of thirteen pounds, six shil
lings and sixpence currency of this province, and that the
defendant do pay costs of suit.
The Sheriff returned that he has duly .summoned the
defendant to appear this day.
The plaintiff appears in person.
The defendant being duly caUed made default.
The plaintiff prays that the default may be recorded.
The Court does order that the default be recorded.

UPPEE CANADA. COURT RECORDS.

221

The Sheriff returned that he has duly summoned the
defendant to appear this day.
The plaintiff appears in person.
The defendant does also appear in person.
The Court do order that this cause may be heard to
morrow.

John Connor
vs.
John Edgar.

The Sheriff' returned that he has duly summoned the
defendant to appear this day.
The plaintiff appears by Thos. Markland in person.
The defendant also appears- in person.
The plaintiff produced and filed an account against the
defendant, amounting to the sum of sixty-one pounds, six
shillings and fivepence halfpenny currency, and says that
is the exact sum due by the defendant.
The defendant does acknowledge himself justly indebted
to the plaintiff for the said sum of sixty-one pounds, six
shillings and fivepence halfpenny currency.
The Court do therefore order and adjudge that the
plaintiff shall recover of the d.efendant the sum of sixty-one
pounds, six shillings and fivepence for his said account,
and the further sum of seven pounds, ten shiUings for in
terest on his promissory note, together with the costs of
suit.

Macaulay &
Markland vs.
John Howard.

The Sheriff' returned that he has duly summoned the
defendant. The plaintiff appears in person and filed declaration.
The defendant also appears i^i person and acknowledged
himself indebted to the defendant the sum demanded by
the plaintiff in his declaration.
The Court do therefore order and adjudge that the
plaintiff shall recover of the defendant the sum of fifty-
one pounds, one shilling and elevenpence currency for his
said debt, together with costs taxed at  .
The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in- person.
The defendant also appears in person and prays that
this cause may be tried next term, because from the short
notice given him he is not prepared for trial, particularly
for want of material witness. ^
The plaintiff says he has no objection to this cause
being tried next term, and prays that it be entered for
trial on the second return day of next term.
The Court do therefore order that this cause may be
tried on the second return day of next term

Joseph Forsyth
&Co., vs.
John Howard.

Titus Simons
vs.
Joseph Allen.

222

UPPER CANADA COURT RECORDS.

Lewis Knotte
vs.
Lawrence Eldam.
(Pi'om Thursday
last.)

William McKay appears for plaintiff.
The defendant being again called according to Rule of
Court does not appear.
The Court do therefore order that the plaintiff may
proceed to prove his demand.
On motion of the plaintiff the Court do order that this
cause may be tried on Thursday, the fifteenth inst.
The Court adjourned till to-morrow at ten o'clock.

FRIDAY, 9th JULY.

John Connor
¦vfi.
John Edgar.
(From yesterday.)

The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appears in person.
The defendant also appears in person, and says that he
is not indebted to the plaintiff, but, on the contrary, the
plaintiff is considerably in his debt.
The plaintiff persists that the defendant is indebted to
him the sum of fourteen pounds, eleven shillings currency,
which he is ready to prove.
Robt. Pendle, upon oath, declares that to the best of
his knowledge his wife was never at the defendant's house
more than three times during the residence of the plaintiff
there. Thomas Burnett, upon oath, declares that he lives near
the farm of the defendant, and that during the plaintiff's
residence there he did not observe any improvement made
worth notice.
Upon question by the Court, he says that had. any im
provement been made, such as a man would make in less
time than forty days, he certainly should have taken notice
of it, and this deponent further says that the plaintiff had
told him that the defendant had taken him and his family
into his house at a time they_ were much distressed.
It appears that in the fall of 1787, about October, the
plaintiff with his family, a wife and two children, were
admitted into the defendant's house, where he resided till
the latter end of ^larch. By his own avowal he brought
with him no other provisions than a bag of flour, about 31/^
bushels, and 3 bushels of corn he afterwards gave the de
fendant. It appears that he was employed by the defen
dant only to thrash 22 bushels of grain, and many of the
articles he charges appear absolute fabrications. Even he
himself allows that he would not have made any demand
against the defendant if the defendant had not made out
an account against him.

UPPER CANADA COURT RECORDS.

223

The Court are clearly of opinion that the plaintiff hath
no just demand against the defendant, and do therefore
dismiss the suit and order the 'plaintiff to pay the costs
taxed at £2 15s. 10.

The defendant appears in person and prays that default
of yesterday may be taken off and that this cause may now
be tried. The plaintiff also appears in person and is ready to
prove his demand to be just.
The Court do therefore order that this cause may now
be heard. The plaintiff produces his account against the defendant
amounting to the sum of seventeen pounds 'ten shillings,
and a charge of interest amounting to three pounds, three
shillings currency.
The defendant denies that he is indebted to the plain
tiff the said account,, and exhibits an account against the
plaintiff amounting to thirty pounds, nine shillings and
fourpence. The Court having fully heard the parties and filed the
different papers produced by the parties in this cause, will
deliberate on the merits of the cause and give judgment on
Thursday next.
The Court adjourned to Thursday next.

John Ferguson
vs.
Alex'r Pisher.

THURSDAY, 15th JULY.
The Court met pursuant to adjournment.
Present : The same Judges.
William MaeKay appears for the plaintiff and prays
that this cause may be referred for trial to the first day of
next term.
The defendant being duly called made default.
The Court on motion of the plaintiff do order that this
cause may be tried on the day prayed.
The plaintiff appears in person. The defendant being
duly called made default.
The Court do not consider the evidence produced to be
sufficient for them to give final judgment in this cause,
they do therefore order that the parties may appear in this
Court on the first return day of next term, and that they
produce such further proofs as they may be able to bring
and necessary- to substantiate their respective accounts.

Lewis Kotte
vs.
Lawr'e Eldam.
(Prom the Sth
Inst.)

John Ferguson
vs.
Alexander Pisher.
(Prom the Sth
Inst.)

224

UPPER CANADA COURT RECORDS.

Macauley &
Markland vs.
Moore W.
Hovendon.

Thomas Markland ajipears for plaintiffs and prays that
Joseph Allen may be called, to show cause why the Sheriff
shall not proceed to the sale of the defendant's lands taken
in execution to satisfy the judgment obtained against de
fendant, agreeable to the order of Court of Thursday, the
first inst.
Joseph Allen does appear to prove his right and title
to the lands, taken in execution as belonging to Moore W.
Hovendon, to satisfy Messrs. Macauley and Markland for
judgment against the defendant.
The Court having duly considered and examined the
several exhibits produced by the said Joseph AUen, like
wise the evidence produced by him, the Court do therefore
order that the Sheriff shall proceed to make sale of the
lands in question to satisfy the aforesaid judgment. The
reasons assigned by the' Court for the foregoing judgment
are as follows, viz. : —
That there is no maxim more certain than" that a man
cannot convey a better title than he has received. The
question therefore before the Court is : Is Mr. Hovendon's
conveyance to Mr. Ferguson legal, or granted on good and
valuable consideration. On this subject there seems littie
cause of doubt. The writing said to be a conveyance and
produced in Court is so very irregular that it can give no
title, and from many circumstances appears to have been
given merely with a view to defraud Mr. Hovendon's just
creditors. Further, it appears that Mr. AUen was apprised
of these circumstances previous to his accepting any grant
from Mr. Ferguson.

SEPTEMBER
TERM.

THURSDAY. 16th SEPTEMBER, 1790.
The Court met pursuant to adjournment.

Joseph Allen
vs.
Titus Simons.
(From l.Tst Term.)

.Present: The Honourables Eichard Cartwright and
Neil McLean, Esquires.
The plaintiff appears in person and prays that this
can.se may be tried on Thursday ncixt, the 23rd inst.
The defendant also appears in person and says that he
lias no objection to the niotion of the plaintiff.
The Court do order that this cause may be tried as
prayed.

Allen McLean
vs.
George Farley.
(Prom last Term.)

The plaintiff appears in i>erson and prays that this cause
may be tried on Friday, the twenty-fourth instant.
The Court on niotion of the plaintiff do order that this
cause may be tried as prayed.

UPPEE CANADA COUET EECOEDS.

22:

The parties do personaUy appear.
The Court do order that this cause may be heard
to-mOrrow. The Sheriff returned that he has duly summoned the
defendant to appear this day in court.
The plaintiff appearsjn person and prays that this cause
may be tried on Saturday, the eighteenth.
The defendant also appears in person and prays that
this cause may be tried on Friday, the 26th inst.
The Court do order that the defendant may plead to
this cause on Saturday, the eighteenth inst.
The Court do order that this cause may be tried on
Saturday, the 18th inst.
The Court adjourned until to-morrow at ten o'clock in
the forenoon.

Oohn Ferguson
vs.
Alex'r Pisher.
(Prom last Term.)

Daniel McQuInn
vs.
Thomas Markland.

Lewis Kotte
vs.
Lawrence Eldam.
(Prom last Term.)

FEIDAY, 17th SEPTEMBEE.
The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appears in person and prays that the John Ferguson
deposition of Wm. Macdonell may be taken in this cause. Aiex'r'pisher.
The said 'witness was duly called and sworn, and his
deposition taken and filed.
The defendant also appears in person and represents to
the Court that the receipts now presented to the Court
by the plaintiff, are official papers obtained when the parties
were in office, and that he does not consider himself
accountable to the plaintiff for such.
The plaintiff further represents to the Court that he
considers himself liable for any deficiency of stores, and
that he has already satisfied the present Barrack Master
at this place, Mr. Sparham, for deficiency of stores in that
department. The Court not being prepared to give judgment in this
cause at present, wiU deliberate further on the merits of
this cause and give judgment to-morrow.
The Court adjourned until to-morrow at ten o'clock in
the forenoon. 16a

226

UPPER CANADA COURT RECORDS.

SATURDAY, 18th SEPTEMBER, 1790.
The Court met pursuant to adjournment.
Present : The same Judges. /

John Fe)gu£on
¦va.
Alex'r Fisher.
(From last adjt.)

Lewis Kotte
vs.
La-vpr'e Eldam.
(From Thursday
last.)

The Court having duly considered the merits vof this
cause from the proofs laid before them do order and ad
judge that the plaintiff shall recover of the defendant tlie
sum of four pounds for his debt and three pounds, four
shillings and elevenpence costs.
Mr. David Ross appears for the plaintiff and produces
a special power from the plaintiff's agent, Mr. William
MacKay, which is allowed by the Court and ordered to be
filed. The defendant being duly called made default.
Mr. Ross prays that the default may be recorded and
that judgment may be given in this cause.
The Court do not consider that the proofs produoecl
by the plaintiff are sufficient to substantiate the demand of
the plaintiff, they do therefore order that the plaintiff
may produce such further proof as can be procured and
appear in this court on Monday next, the twentyeth inst.

Daniel McQuinn
vs.
Thomas Markland.
( From Thursday
last.)

The plaintiff and defendant personally appear in court
and pray that this cause may be submitted to the arbitra
tion of Michal Grass, David Brass, and Titus Simons,
persons chosen and appointed by them.
The Court do accordingly order that this cause niiy be
submitted as prayed, and that their award may be produced
in court on Monday next, duly signed and sealed by the
aforesaid arbitrators.
Adjourned to Monday.

MONDAY, 20th SEPTEMBER.
The Court met pursuant to adjournment.
Present: The same Judges.

Lewis Kotte
vs.
Lawrence Eldam.
(From Satnpday
Tast.)

Mr. Ross appears for plaintiff and informs the Court
that the evidence required by the Court in this cause is
immaterial and insufficient to prove the demand of the
plaintiff, and therefore prays that the judgment may he
given to recover of the defendant the sum of eight pounds
with costs of suit.
The Court : Upon examining the charges made by the
plaintiff against the defendant, it appears that the charge

UPPER CANADA COUET RECORDS.

227

for the sum of eleven pounds paid to carpenters was not
by desire of the plaintiff as stated in his account, but paid
to them on account of work done for the plaintiff. The
Court do therefore order that the plaintiff shall recover of
the defendant the sum of eight pounds, with costs taxed
at two pounds, fourteen shillings and threepence.

The plaintiff appears in person.
The defendant also appears in person and produced and
filed the award of Mich'l Grass, David Brass, and Titus
Simons, as ordered by the Court on Saturday last, by
which award the plaintiff is allowed the sum of seven
pounds, four shillings, and that the defendant shall pay
costs and charges.
The plaintiff demands time to consider the said award.
The Court do order that the plaintiff may be allowed
time as prayed, and that he may appear in this court on
Wednesday, the twenty-second inst.
Adjourned to Wednesday, the 22nd.

Dan'l McQuinn
vs.
Thomas Markland.

WEDNESDAY, 22nd SEPTEMBER.
, The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appears in person and' declares that he
has no further objection to make why judgment should not
be given according to the award produced and filed.
The Court do therefore order that tbe plaintiff shall
recover of the defendant the sum of seven pounds, four
shiUings, together with costs taxed at five pounds, eighteen
shillings and ninepence currency.
Adjourned until to-morrow.

Dan'l McQuinn
vs.
Thomas Markland.

THURSDAY, 23rd SEPTEMBER.
The Court met pursuant to adjournment.
Present: The same Judge.s.
The Sheriff returned that he has duly summoned the
defendant to appear.
Mr. Thomas Walker appears for the defendant and
filed his warrant of attorney to appear in this action, and
"moves in behalf of the defendant that Mr. Eoss may file his
power to prosecute in this cause.
The Court do order that Mr. Ross shall produce his
power to appear for the plaintiff.

John Lynd
vs.
Arch'd McDonell,
Esq.

228

UPPER CANADA COURT RECOEDS.

Mr. Eoss prays that time may be allowed to answer, and
that the cause may be tried to-morrow.
Mr. Ross having produced no power from the plaintiff
to plead to this action, the Court on motion of the defen
dant do order that this action be dismissed with costs.

Joseph Allen
vs.
Titus Simons.

Titus Simons
vs.
Joseph AUen.

Mr. ^Valker appears for the plaintiff and filed his power
of attorney, which is allowed by the Court.
The defendant appears in person and says that he is not
indebted to the plaintiff in the manner as set forth in the
declaration. Mr. Walker prays time until to-morrow to file replica
tion. The Court, on motion of Mr. Walker, do order that this
cause may be brought forward as prayed.
The defendant appears by Mr. Walker and filed his
plea. The plaintiff appears in person and prays time may
be aUowed until the last day of this term that he may
procure the necessary evidence.
Mr. Walker appears for the defendant and filed his
power of attorney, which is allowed by the Court.
Mr. Walker, of counsel for defendant, in answer to the
motion of plaintiff, states that this cause was instituted last
term, and plaintiff has had sufficient time to procure any
evidence which he has to produce that if any evidence is
necessary and cannot at this time be procured, it is neces
sary that the plaintiff make an affidavit to that effect and
to the points which he means to prove.
The plaintiff prays time until to-morrow to file repli
cation. The Court on motion of plaintiff does ordej that time
may be allowed as prayed.
Adjourn until to-morrow.

FRIDAY, 24th SEPTEMBER, 1790.

Joseph Allen
vs.
Titus Simons.

The Court met pursuant to adjournment.
Present: The same Judges.
Mr. Walker appears for plaintiff and prays that a venire
may be ordered to try the issue, returnable on Monday
next. Mr. David Ross appears for the defendant, and filed a
warrant of attorney, which is allowed by the Court.
The Court on motion of the plaintiff do order that a
venire may be issued as prayed.

UPPER CANADA COURT EECORDS.

229

Mr. David Ross appears for the defendant and filed a ^"an McLean
power which is aUowed by the Court, and Mi-. Eoss has George Farley.
also filed plea in abatement.

The plaintiff appears in person, and the said plaintiff
by pleading replyeth to the plea of the defendant in this
cause, and saith that the defendant is guilty of the
premises alledged against him in manner and form as the
.same is declared against him in the said declaration in
this cau.se, and this thc plaintiff prays may be enquired of
by the country.
The defendant, by ^Ir; Walker, prays that a venire do
issue returnable on Monday next.
The Court do »rder that a venire may issue as prayed.
The Court adjourn until to-morrow at ten o'clock in
the forenoon.

Titus Simons
vs.
Joseph Allen.

SATURDAY, 25th SEPTEMBER.
The Court met pursuant to adjournment.
Present: The same Judges.
Thos. Ross appears for the plaintiff and tiled a war
rant of attorney which is allowed by the Court.
Mr. Ross prays leave to file the plaintiff's affidavit
that a material evidence cannot be procured which is very
necessary to prove the first count or charge of the declara
tion, and prays that this cause may be put off for trial ne.xt
term. The Court having taken into consideration the prayer
of the plaintiff, likewise the affidavit filed, do order that
this cause may be put off for trial until next term and that
the Sheriff may be ordered to stay proceedings upon the
venire issued.
Adjourned until Monday next.

Titus Simons
vs.
Joseph Allen.

MONDAY, 27th SEPTEMBER.

The Court met pursuant to adjournment.
Present: The same Judges.
Mr. Walker appeared for the plaintiff and filed answer Alien McLean
to plea in abatement. George Paries-.
Mr. Ross appears for defendant and filed replication.

230

UPPER CANADA COURT RECORDS.

Joseph Allen
vs.

The Sheriff returned the

venire.

Titus Simons.

Jurors called and sworn :-

—

1. Thomas Markland.
2. James Eobins.
3. Mich'l Grass.
4. Arch'd Thomson.
5. Chris. Georgeon.
6. Mahln. Knight.

7.
8. 9.
10.
IL12.

John Duncan.
Amos Ainsley.
Nathn'l Lines.
Dan'l McQuinn.
Wm. Atkinson.
Jno. Everitt.

The plaintiff produced and filed the defendant's note
of hand for twenty-three pounds, three shiUings and ten-
pence, likewise the plaintiff's draft for one hundred pounds
currency dra-wn on Robt. EUice & Co., merchants, of
Montreal. The parties having been fully heard by their respective
attorneys, Mr. Walker for the plaintiffs and Mr. Ross^^for
the defendant.
The jury retired to consider of their verdict, and having
returned into court, by their foreman, Thomas Markland,
say that the defendant is indebted to the plaintiff to the
sum of twenty-three pounds, three shillings and tenpence
and costs of suit.
The Court having duly considered the verdict of the
jury do order and adjudge that the plaintiff shall recover
of the defendant the sum of twenty-three pounds, three
shillings and fourpence, together with costs of suit taxed
at sixteen pounds, thirteen shillings and threepence
currency.

Allen McLean
vs.
Georg-e Farley.

The Court having considered the plea of abatement,
answer and replication, and heard the parties by their re
spective counsels, do order that the said plea of abatement
shall be dismissed with costs, and that the defendant do
plead to the merit to-morrow. Situated as are this Court
and district without the assistance of professional la-vs7ers,
it is not surprising that irregularities should be committed
in the preliminary steps for bringing forward a cause, and
it has ever been the opinion of the Court under their pecu
liar circumstances they are justified in over-ruling any
objection found and on such want of formality. But to
reply more particularly, although the ordinances for regu
lating the practice of court makes a declaration necessary
in the case of summons, it appears not to require it in
case of attachment where it only says that the Judge
granting the attachment shall be satisfied by the oath of
the party that the defendant is indebted" to him in a sum
exceeding ten pounds. As, therefore, bail has been given

UPPEE CANADA COUET RECORDS. 231
by the defendant, who hath actuaUy removed with his
family from the Province, and the plaintiff by aUo^wlng the
plea of abatement, must forever be precluded from bring
ing this matter again forward, it is the opinion of the
Court that it would be contrary to every principle of
natural justice to dismiss the suit at this stage. And it
would have shown more candour in the defendant to have
waived his objections than to put the Court to the alterna
tive of condemning their own act or over-ruling them.
The defendant appear,-, by Mr. Ross, and the said
defendant for plea to the action of the said plaintiffs saith
that he did not agree to sell his farm mentioned in the
said declaration to the said plaintiff in manner and form
as the same is alledged by the plaintiff, therefore prays to
be dismissed from this action with costs. And the plaintiff
for replication by his attorney, Mr. Walker, saith that the
defendant is indebted in manner and form as in the
declaration is stated,, and this he prays may be inquired
of by the Court.
Adjourned until to-morrow at ten o'clock.

TUESDAY, 28th SEPTEMBER, 1790.
The Court met pursuant to adjournment.
, Present : The same Judges.
The plaintiff appears by :\Ir. Walker and prays that AUenjMcLean
evidence may be called and examined to prove tlie agree- George Farley.
ment as set forth in the declaration.
Mr. Ross appears for thc defendant and objects to the
hearing of any parole evidence to prove the agreement
alledged, because by law no verbal agreement relative to
landed property can be proved by parole testimony,
therefore prays that this action may be dismissed with
costs. The Court on considering the argument of the parties
in this cause are of opinion that this suit be dismissed with
costs to the defendant.
Por by the laws of England, which are admitted in this
cause, it is expressly declared that when any contract or
sale is made of lands, tenements, and hereditaments no
verbal promise shall be sufficient to ground an action
upon 29 Char. 2, c. 3, and this cause is brought on a
verljal contract merely.
Adjourned to Thursday next.

232

UPPER CANADA COURT RECORDS.

Macaulay &
Markland vs.
Moore W.
Hovendon.

THURSDAY, 30th SEPTEMBER, 1790.
The Court met pursuant to adjournment.
Present : The same Judges.
The Sheriff returned on execution, that he has caused
to be made of the lands and tenements of the defendant,
the sum of fifty-nine pounds current money- of the Prov
ince, which sum he is ready to pay the plaintiff in part
satisfaction of their debt and costs, and further that the
defendant has no more goods or chattels, land or tene
ments in this district whereof he could levy the residue of
the said debt and costs.
Adjourned to Monday, the third day of January next
(1791).

KINGSTON. JANUARY TERM.

Robert Hamilton
and Richard Cart
wright, Jun.,
merchants &
co-partners, Plaintiffs, Gotlleb Christian,
Baron de Eeitren-
stein, late of
Marysburgh,
Defendant.

John Lockart
-Wiseman, of Mont
real, in the Prov
ince of Quebec.
Plain tIfC,
George MaGInn.
of Fredericksburg.
Defendant.

COURT OF COMMON PLEAS.
MONDAY, 3rd JANUARY, 1791.
The Court met pursuant to adjournment.
Present: The Honourable Richard Cartwright, Esq.,
and the Honourable Neil McLean, Esq.
The Governor having appointed Hector McLean one
of the Justices of the Court of Common Pleas for this
district, and the commission being ready he has taken his
seat accordingly.
The Sheriff returned that he has duly summoned the
defendant to appear.
Eichard Cartwright, Jun., one of the partners of the
house of H. & C., appears in person and filed declaration.
The defendant being duly called made default. The
plaintiff prays that default be recorded. The Court order
that the default of the defendant be recorded as prayed.
The Sheriff returned that he has duly summoned the
defendant to appear.
Archibald Thomson, of Kingston, appears for the
plaintiffs, does produce his power of attorney which is
allowed by the Court and filed.
The defendant being duly called made default. The
plaintiffs pray that the default may be recorded. .
The Court do order that -the default be recorded
accordingly.

UPPER CANADA COURT RECORDS.

233

The Sheriff returned that he has duly summoned the
defendant. Richard Cartwright, Jun., one of the partners of the
said Hamilton & Cartwright, appears in person and
filed the defendant's bond for the sum of seventy-six
pounds, five shillings and twopence, current money of
this Province, and at the same time the plaintiff observes
to the Court that there is only remaining justly due on the
said bond the sum of forty-one pounds, eight shillings
and one penny currency aforesaid, and prays that judg
ment may be given accordingly. The defendant appears
in person and acknowledges himself indebted to the plain
tiffs the sum demanded by them.
The Court having considered the acknowledgment of
the defendant to the said debt, do order and adjudge that
the plaintiff shall recover of the defendant the said sum
of forty-one pounds, eight shillings and one penny, together
with costs of suit.

Robert Hamilton
& Richard Cart
wright, of Kings
ton, merchants
& co-partners.
Plaintiffs,' vs.
Richard Campbell,
of said place,
labourer, Defendant.

The Sheriff returned that he has duly summoned the
defendant. Thomas Markland, one of the said co-partners, appears
in person and filed their account against the defendant,
amounting to the sum of fourteen pounds, five shillings
and eightpence currency of this Province.
The' defendant appears -in person and acknowledges
himself indebted Ho the plaintiffs the sum demanded in
their declaration.
The plaintiff prays that judgment be given accord
ingly. The Court do therefore order that the plaintitf
may recover of the defendant the sum of fourteen pounds,
five shillings and eightpence currency aforesaid,
together with costs of suit.
It appears to the Court that the defendant has been
summoned to appear by a writ not legally tested, and no
proceeding can be had thereon.
The defendant moves that he may be allowed his costs
apd charges for his appearance here this day.
The Court having considered the motion of the de
fendant, do order that he may recover of the plaintiff the
sum of twenty shillings and the plaintiff to pay costs.
The Sheriff returned that he has duly summoned the
said defendants.
The plaintiff appears in person and demands of the
defendants the sum of sixteen pounds currency of this
province for their several promissory notes bearing date
the eighteenth day of April, one thousand seven hundred
and eighty-seven. 17a

Robert IMacauley
and/Tliomas Mark-
land, of Kingston,
merchants & co
partners, agt.
Richard Campbell,
of said place,
labourer, Defendant.

Richard Ferguson
vs.
Conrood "Vanduser.

Robert Clark, Esq.,
of Ernest-Town,
Plaintiff, Thoms. Loyd &
Ellsha Crane, of
Marysburg,
Defendants.

2.34

UPPER CANADA COURT RECORDS.

Eiisha Crane appears in person and acknowledges him
self jointly and severally with the said Thomas Loyd to be
justly indebted to the plaintiff the said sum with lawful
interest thereon.
The plaintiff having filed the said promissory notes, '
which with interest thereon amount to the sum of nine
teen pounds, eleven shillings currency, aforesaid, prays
that judgment may be given accordingly.
The Court having considered the acknowledgement of
the) defendant and examined the said notes exhibited and
filed, do order that the plaintiff shall recover of the said
defendants the sum of nineteen pounds, eleven shUlings,
with costs of suit.

Titus Simons, of
Kingston,PlauitUt, vs.
Joseph Allen, of
Adolphustown,Defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed declaration.
The defendant appears in person and sayeth that he
is not in the least indebted to the plaintiff.
The plaintiff replies that the defendant is indebted to
him in manner as set forth in his said declaration, which
he is ready to prove.
The defendant prays that he may be allowed time for
trial and that this cause may be heard the next term.
The Court, on motion of defendant, do order that this
cause may be tried as prayed.

Titus Simons
vs.
Joseph Allen.
(From last Term.)

The plaintiff appears in person and declares that he is
now prepared for trial and that the cause may be now
tried. The defendant appears in person and prays that this
cause may be tried next term for reason that his counsel
cannot attend at this season of the year, from the badness
of the roads between this and the place of his residence.
The Court, on motion of the defendant, do order that
this cause may be tried as prayed.
The Court adjourned till Monday next, the tenth inst.

MONDAY, THE 10th JANUARY.
The Court met pursuant to adjournment.
Present : The three Judges.

Hamilton &
(Jartwright vs.
Gotlep C Baron
de Reitrenstein.
(From the 3rd
inst.)

The defendant being this day again called duly made
default. Richard Cartwright, Esq., appears for plaintiffs and
filed the said defendant's promissory note dated at Catar-
aque the 20th day of November, in the year 1784, for the

UPPER CANADA COURT RECORDS.

235

sum of seventy-seven pounds, one shilling, Quebec 'cur
rency, with interest calculated thereon amounting to the
sum of twenty-five pounds, eight shillings and sixpence,
said currency, and the plaintiff does likewise exhibit an
account for sundries furnished the defendant, amounting
to the sum of four pounds, eleven shiUings and three
pence. The plaintiffs having called Bryan Crawford, one of
the. subscribers' witnesses' to the said notes, and this wit
ness being diUy sworn his deposition was filed accordingly.
The plaintiff being also duly sworn to the account
exhibited against the defendant, the same was filed.
The Court having duly examined the several exhibits
produced by the plaintiffs and considered the declaration
of the plaintiff and the default of the defendant, do order
and adjudge that the plaintiffs shall recover of the defen
dant the sum of seventy-seven pounds, one shilling for
said note, and the sum of twenty-five pounds, eight shil
lings and sixpence for interest due on the same, likewise
four pounds, eleven shiUings and threepence for his
account. In aU amounting to the sum of one hundred and
spven pounds and- ninepence, lawful money of this prov
ince, together with costs of suit taxed at  .

The defendant being this day again duly called made
default. Mr. Thomson appears in person, and exhibits the de
fendant's notes for the sum of thirteen pounds, eight
shiUings and ninepence, with interest calculated thereon
amounting to the sum of thirteen pounds, thirteen
shillings. The Court having duly examined the said notes and
considered the default of the defendant do order and ad-
judg^'that the plaintiff may recover of the defendant the
sum of thirteen pounds, thirteen shUlings with costs of suit
— three pounds, sixteen shillings and fourpence.
The Court adjourned to Saturday next.

John Lockhart
Wiseman vs.
George McGinn.
(Prom Monday
last.)

SATURDAY, 15th JANUARY, 1791.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Neil
McLean and Hector McLean, Esquires.
Peter Wartman appears and represents to the Court
that he obtained judgment in this court against Lawrence
Eldam, the ninth day of October last, for the sum of seven
pounds, thirteen shillings and tenpence, of which the sum
of four pounds, nine shillings and sixpence remains yet

236

UPPER CANADA COURT RECORDS.

unpaid, and that he hath just reason to suppose that
there are monies of the said Bldam in the hands of the
SherilT, therefore prays that the Court will order that the
Sheriff may be directed to satisfy the said judgment from
the monies remaining in his hands belonging to the said
Lawrence Eldam.
The Court do order that the Sheriff shall on the first
day of March term next make a return on the execution
issued against the said Lawrence Eldam.
The Court adjourned to March term next.

MARCH TERM.

THURSDAY, THE 17th OF MARCH, 1791.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Junr.,
Neil SIcLean, and Hector McLean Esquires.

Richard Ferguson.
of Sophiaaburg,
plaintiff, vs.
Conrood "i^anKluser,
of  .
defendant.

The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed declaration.
The defendant also appears in person and saith that he
is ready to plead.
The Court do order that the defendant may file his
answer to the declaration of the plaintiff to-morrow.

James Clark, Sen.,
late of Kingston,
plaintiff, vs.
Johnde Courcy
Gill, of
Fredericksburg,
defendant.

The Sheriff returned that he has duly summoned the
said defendant.
James Clark, Jun., appears for the plaintiff and filed
power of attorney from the plaintiff.
The defendant being duly called made default.
The Court on motion of the plaintiff do order that
default be recorded.

John Howell, of
Sophlasburg,
plaintiff, Joseph ¦Wesley,
late of Kingston,
defendant.

The Sheriff returned that he has duly summoned the
said defendant to be and appear.
John Ferguson appears for the plaintiff and filed war
rant of attorney from the plaintiff.
The defendant being duly caUed made default.
The Court, on motion of the plaintiff, do order that
default l>e recorded.

Conrood -Vanduser,
of Adolphustown,
plaintiff, vs.
Owen Rdchard &
John Richard.

The Sheriff returned that he has duly summoned the
said defendant to be and appear.
The defendant being duly called made default,
The Court, on motion of the plaintiff, do order that
default be recorded.

UPPER CANADA COURT RECORDS.

237

The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed declaration.
The defendant also appears in person, and is ready to
answer to the said declaration.
The plaintiff prays that the Court may order that the
defendant shall plead at a short day.
The Court do order that the defendant shall plead
to-morrow.

John Cascallon, of
Fredericksburg,plaintiff, vs.
Ebenezer -Wash
burn, of said place,
defendant.

The Sheriff returned that he has duly summoned the
said defendant.
James Dawson appears for the plaintiff and filed
power of attorney from the plaintiff, likewise filed
declaration. The defendant appears in person and craves Oyer of
said power of attorney, which was granted, and the said
defendant saith that he is ready to plead to said declar
ation. It is ordered that the defendant may plead
to-morrow.

John Stringer, late
of Ernestown,
plaintiff, vs.
Joshua Booth, of
the said place,
defendant.

The Sheriff returned that he has duly summoned thc
defendant. The said Richard Cartwright, Jun., appears in person.
The said defendant also appears in per,son and acknow
ledges himself indebted to the plaintiffs thc sum of thirty-
seven pounds, nineteen shillings and fivepence lawful
money of this Province.
The plaintiff prays judgment for the said sum of
thirty-seven pounds, nineteen shillings and fivepence, with
eosts of suit.
The Court do consider and adjudge that the plaintiffs
may recover of the defendant the said sum of thirty-se\'en
pounds, nineteen shillings and fivepence, together with
00^1== of suit.
The Sheriff returned that he has duly summoiicd the
said defendant.
The said Eichard Cartwright, Jun., appears in person
and filed declaration.
Frederick Keller appears for said- defendants and
acknowledges themselves indebted to the plaintiffs as set
forth m said declaration.
The plaintiff prays that the Court give judgment as
demanded. The Court do order and adjudge that the plaintiffs
shall recover of the .said defendant the ram of twenty-four
pounds nine shillings and twopence for said debt, together
with costs of suit.

Robert Hamilton ,
Richard Cart-
wrlight, Jun.,
merchants,
of Kingston,
plaintiffs, vs,
Barnabas Hough,
of Ernestown,
blacksmith,
defendant.

Robert Hamilton &
Richard Cart
wright, Jun..
merchants & co
partners, of
Kingston,plaintiffs, vs.
Frederick Keller &
William Keller, of
Fredericksburg,defendants.

238

UPPEE CANADA COUET EECOEDS.

Robert Hamilton
and Richard Cart
wright, Jun.,
merchants, of
EOngston,
plaintiffs, vs.
Mathew Dies, of
Fredericksburg,
defendant,

John Ferguson,
of Sydney,
plaintiff, vs.
Mathew Dies, of
Fredericksburg, defendant.

The Sheriff returned that he has duly summonedthe
defendant. The said Richard Cartwright, Jun., appears for
plaintiffs. The defendant being duly called made default.
The Court, on motion of the said plaintiff, do order
that -the said default be recorded.
The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed declaration.
The defendant being duly eaUed made default.
The Court, on motion of the plaintiff, do order that
default be recorded.

Titus Simons,
plaintiff,Joseph AUen,
•defendant. (Prom last term.)

The Honourable Richard Cartwright, Esq., one of
the Judges, withdrew from the Bench during the pro
ceedings on the four last actions.
The plaintiff appears in person.
The defendant being duly caUed made default.
The Court being well informed that the defendant
could not attend owing to his very bad state of health.
The Court do therefore consider that this cause may
be tried next term.

Titus Simons,
plaintiff, vs.
Joseph AUen,
defendant. (From last term.)

For the same reason as alledged in the foregoing- cause
the Court do order that this action may be heard next
term. Adjourned until to-morrow at ten o'clock in the fore
noon.

Richard Ferguson
vs.
Conrood ¦Vanduser.
(From yesterday.)

FRIDAY, THE 18th DAY OF MARCH, 1791.
The Court met pursuant to adjournment.
Present : The same Judges.
The defendant appears in person and saith that he
is not indebted to the plaintiff the sum demanded in his
declaration, nor any part thereof.
The plaintiff appears in person and says that the de
fendant is indebted to him as set forth in his said declar
ation, which he is ready to prove.
The defendant prays that this trial may be ordered
for next term, as the defendant cannot sooner procure
papers necessary to defend his cause.
_ The Court on motion of the defendant do order that
this cause may be tried next term as prayed.

UPPER CANADA COURT RECORDS.

239

The defendant appears in person and prays that the
default of yesterday may be taken off.
The Court do order that default be taken off, on paying
costs. The defendant acknowledges himself indebted to the
plaintiff in the sum of seventeen pounds, two shillings and
threepence. The plaintiff prays that judgment may be given for the
sum acknowledged by the defendant, with costs of suit.
The Court do order and adjudge that the plaintiff may
recover of the defendant the sum of seventeen pounds, two
shilUngs and threepence, together with costs of suit.

James Clark, Sen.,
vs.
John Dec'y Gill.

The defendant appears in person and saith that the
plaintiff hath no cause of action against him, for that the
plaintiff's demand against him is for a certain note sold
him at an under value, in order to take off all trouble and
risque of said note from the defendant, and not trans
ferred in the ordinary course of business, as appears more
fully from the plaintiff's written obligation bearing date
tbe 26th day of Nov., 1790, now exhibited and filed, con
taining only this condition, viz., that is to say, that if the
said plaintiff was last in an action now in the hands of
Eichard Cartwright, Esq., and Thomas Markland, and to
be finaUy determined by them by arbitration, then the
transfer of the note to be absolute and at the risque of the
plaintiff, which condition having happened the defendant
does not consider himself to have any further concern in
said note. The defendant further saith that the plaintiff,
being indebted to the drawer of the said note, had it in his
power, and still has it in his power, to recover the said
note. The defendant also says that it appears the plaintiff
had a design to take undue advantage of him, as he did
not take out a writ in this action until eight days after the
plaintiff was summoned at the suit of the defendant; and
had taken occasion from this summons not being return
able until the twenty-third inst. to have this business pre-
riously brought forward.
The plaintiff prays time until to-morrow to make his
reply. The Court, on motion of the plaintiff, do order that this
oause may be heard to-morrow.

John Caseation
vs.
EbenezerWashburn. (Prom yesterday.)

The defendant appears in person, and saith that the
said James Dawson is empowered by the plaintiff to sue
for a lot of ground No. 39, and that the defendant is not
in possession of any such lot; and that the defendant in
Ws declaration hath sued for a lot of ground No. 40,

John Stringer
vs,
Joshua Booth.
(From yesterday.)

24C

UPPER CANADA COURT RECORDS.

which he hath no authority to do, and prays that the
Court may dismiss this action with costs.
The Court having duly examined the power of the said
Dawson, exhibited and fUed, it appears that he is not
legally authorised to sue for the defendant for a lot of
ground No. 40, as stated in his declaration, but a certain
lot No. 39. Therefore consider that this cause may be
dismissed and that the plaintiff do pay costs, and that the
defendant shall recover ten shillings for his costs.
The Court adjourned until to-morrow at ten o'clock.

SATURDAY, 19th MARCH, 1791.
The Court met pursuant to adjournment.
Present: The same Judges.

John Cascallon
vs.
EbenezerWashburn.

The plaintiff appears in person, and prays to withdraw
his action against the defendant. Whereupon the Court
do consider that judgment of non-suit be entered.
The Court adjourned until Wednesday next.

John Gumming, of
Kingston, iMer-
chant, plaintiff,
vs.
Alex'r Simson, of
Fredericksburg,defendant.

Alex'r Clark, of
Predericlcsburg,plaintiff, vs.
Collin MacKenzie,
of Ernestown,
defendant.

WEDNESDAY, THE 23rd MARCH, 1791.
The Court met pursuant to adjournment.
Present: The same Judges.
The Sheriff returned that he has duly summoned the
defendant; the" plaintiff appears in person and filed de
claration, likewise the defendant's promissory note, bearing
date the 7th day of March, 1789, for the sum of ^thirty-
seven pounds and eightpence.
The defendant also appears in person and acknowl
edges himself indebted to the plaintiff, in manner as set
forth in his declaration.
The Court having considered the acknowledgment of
the defendant and examined the note filed by the plaintiff
do order and adjudge that the plaintiff may recover of the
defendant the sum of forty pounds, ten shiUings and one
penny for principal and interest, with costs of suit.
The Sheriff returned that he has duly summoned the
defendant. ,
The plaintiff appears in person and filed declaration.
The defendant also appears in person, and saith that
he is not indebted, as set forth in said declaration, for
that- the said draft was given without a valuable consider
ation.

UPPER CANADA COURT RECORDS.

241

The plaintiff saith that the defendant is indebted to
him as set forth in his declaration, and that the said draft
was given him by the defendant for his certain promissory
note. The Court do order that the parties may appear
to-morrow, to plead to this action.
The Sheriff returned that he has duly summoned the
defendant. Richard Cartwright, Jun., appears for the said plain
tiffs, and filed declaration.
.The defendant appears in person and acknowledges
himself indebted to the plaintiffs in manner as set forth in
said declaration.
The plaintiff having filed the said note,
The Court do consider that the plaintiffs shall recover
of the defendant the sum of twenty-two pounds, nine shil
lings and twopence for said note, with nine pounds, five
shiUings and one penny for interest due thereon, together
with costs of suit.

Robert Hamilton ,t
Rich'd Cartwright,
Jun., of Kingston,
merchants & co
partners,
plaintiffs, vs.
Alex'r Simpson, ot
Fredericksburg,
defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed declaration.
The defendant appears in .person and acknowledges
himself indebted to the plaintiffs the sum demanded in the
said declaration.
The Court therefore consider that the plaintiff may
recover of the defendant the sum of sixty-five pounds, seven
shillings and elevenpence currency, with costs of suit.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declar
ation. The defendant appears in person and saith that he is
not indebted to the plaintiff as set forth in his declaration.
. The plaintiff further saith that the defendant is in
debted to him in manner a.g set forth in his declaration
which he is ready to prove.
On motion of the defendant the Court do order that.
this cause may be tried to-morrow.
The Sheriff returned that he has duly summoned the
defendant. The said Thomas Markland appears for the plaintiffs
and filed declaration.
The defendant appears in person and acknowledges
himself indebted to the defendant the sum of thirty -three
pounds, four shillings and ninepence halfpenny currency.

Joseph Forsyth &
Co., merchants, of
Kingston,plaintiffs,George iMoGiun, of
Fredericksburg,defendant.

Bbeneser Wash
burn, of
Fredericksburg,
plaintiff, vs.
George McGinn,
of said place,
defendant.

Robert Macauly
and 'Thomas Mark-
land, of Kingston,
merchants, plaintiffs. vs.
George JJcGinn, of
Fredericksburg,
defendant.

242

UPPER CANADA COURT RECORDS.

The plaintiff prays that judgment may be given for
the sum acknowledged by the defendant.
The Court postponed giving judgment in this cause,
and su.spended judgment given agauist the defendant at
the suit of Joseph Forsyth & Co. untU the action insti
tuted by Ebenezer Washburn against the defendant shall
be determined, that no undue advantage shaU be had by
either of the parties who have instituted action.; against
the defendant.

John Ferguson,
plaintiff, vs.
JohnCascallen,
defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his
declaration. The defendant also appears in person and saith that
he is in nothing guilty of the premises as set forth in said
declaration. The plaintiff persists in saying that the defendant is
guilty in manner as set forth in his declaration, which he
prays may be inquired of by the country.
The Court do order that a venire may issue return
able on Saturday next to try the issue.
The Court adjourned until to-morrow.

THURSDAY, THE 24th MAECH, 1791.
The Court met pursuant to adjournment.
Present: The same Judges.

Robert Hamilton &
Richard Cart
wright, merchants,
of Kingston,
plaintiffs, vs.
Mathew Dies, of
Fredericksburg,
defendants.

The said Richard Cartwright appears in perton.
The defendant being again duly called this day made
default. The plaintiff prays that default be recorded, and ex
hibit and filed the defendant's promissory note bearing
date the third day of September, 1783, likewise an account
against the defendant amounting to the sum of fifty
pounds, thirteen shillings, currency money of this province,
and the plaintiff up'.n oath declares that the said account
has been frequently tendered for payment.
The Court not being prepared to give judgment in this
action will take time to deliberate.

John Ferguson,
of Sydney,
plaintiff, vs.
Mathew Dies, of
Fredericksburg,
defendant.

The plaintiff appears in person.
The defendant being again duly called made default.
The plaintiff prays that default may be recorded,
and filed his account against the defendant.
The Court having examined the account filed and the
plaintiff not having any other proof to offer the Court

UPPER CANADA COURT RECORDS.

243

it is considered that the Court will delioerate thereon, and
do order that the plaintiff may produce such other proofs
as he may be able to substantiate his demand against the
defendant. The plaintiff prays that this cause may be ordered to
be more fully heard on the first return day of next term.
The Court, upon motion of the plaintiff, do order that
this cause may be tried as prayed.
Richard Cartwright, Esq., withdrew from the bench
during the proceeding in the two last actions against
Mathew Dies.

Peter Clark appears for the plaintiff and filed power
of attorney. The said defendant being again duly called made
default. On motion of the plaintiff the Court do order that
be proceed to prove his demand against the defendant.
The plaintiff produced and filed the defendants' joint
promissory note for the sum of twenty-six pounds, six
shillings and sevenpence, on which there appears to be due
only the sum of twenty-three pounds, eighteen shillings
and eightpence and halfpenny, and prays that judgment
may be given against the said defendant for that sum.
The Court having duly examined the said note filed,
and considered the several defaults of the defendants, do
order and adjudge that the plaintiff shall recover of the
defendants the sum of twenty-three pounds, eighteen shil-
'lings and eightpence halfpenny for principal and interest
due on the said note, together with costs of suit.

Conrood -Vanduser
vs.
Owen Richards,
John Richards.

The plaintiff appears by John Ferguson his attorney.
The defendant being again duly called made default.
The plaintiff prays that the Court will proceed to take
proof of the debt demanded by the plaintiff in his de
claration, and filed his account against the defendant, and
also deposed that the defendant had acknowledged the debt,
as appears by his deposition taken and filed, but not being
able to , make it appear to the satisfaction of the Court
that the said debt has not been discharged since that time.
On motion of the plaintiff the Court do order further
proceedings in this cause may be stayed until the first
return day of next term.

John Howell
vs.
Joseph Westly.

The plaintiff appears in person and filed the said draft Alexander ciark
ftated in his declaration bearing date the fifth day of c^ouin McKenzie.
March, 179.., for the sum of twelve pounds, eighteen
shillings and ninepence currency dravm on Messrs.

244

UPPER CANADA COURT RECORDS.

EbenezerWashburn va
George McGinn.

Macauley & Markland, which the plaintiff saith he has
duly presented, but not accepted by them.
The defendant also appears in person and produces his
promissory note payable to John Blake, or order, which
note he acknowledges to have received from the plaintiff'
for his draft on Macauley & Markland.
The Court having fully heard the parties, likendse ex
amined the several exhibits filed, do consider that the
plaintiff shall recover of the defendant the sum of twelve
pounds, eighteen shiUings and ninepence for his said draft
together with costs of suit.
The plaintiff appears in person and nled the defen
dant's bond bearing date, etc., as set forth in his declar
ation. The defendant also appears in person and saith that
the bond exhibited by the defendant is not a. true bond,
but acknowledges himself indebted to the plaintiff the sum
of thirteen pounds, twelve shillings and fourpence.
The plaintiff prays that judgment may be given for the
sum acknowledged by the defendant.
The Court do therefore consider that the plaintiff may
recover of the defendant the sum of thirteen pounds, twelve
shiUing and fourpence for this debt, together with costs
taxed at 

Macauly &
Markland vs.
George McGinn.

Thomas Markka J appears for thc plaintiffs and prays
that judgment may be given against thc defendant for the
sum acknowledged by him.
The Court having considered the acknowledgment of
the defendant in this cause, do order and adjudge that the
plaintiffs shall recover of the defendant the sum of thirtj'-
three pounds, four shillings and ninepence currency, with
costs of suit.
The Court adjourned until Saturday next.

SATURDAY, 26th MAECH, 1791.
The Court met pursuant to adjournment.
Present : The same Judges.

Hamilton &
Cartwright vs.
Mathew Dies,

Eichard Cartwright appears for plaintiffs and prays
that the Court may proceed to give judgment in this
cause. The Court having duly examined the return made by
the Sheriff on the original writ of summons likewise ob
served the several defaults made by the defendant and the
several exhibits filed by the plaintiffs in this eau^e, do

UPPEE CANADA COUET RECORDS.

245

consider that the said plaintiffs shall recover of the said
defendant the sum of fifty pounds, thirteen shiUings, law
ful money of this province for balance due on the defen
dant's promissory note with interest thereon calculated,
with costs of suit.

The plaintiff having obtained a writ of execution from
this Court against the goods and chattels of the defendant
directed to the Sheriff of the district of Lunenburg: The
said Sheriff has returned thereon, that he has caused to be
leried of the goods and chattels of the said Alex'r. Grant
the sum of twenty-five pounds, seven shillings and six
pence, current money of this province, together with his
own fees.

Hamilton &
Cartwright vs.
Alex'r Grant.

The plaintiff appears in person.
The defendant also appears in person.
The Sheriff returned venire.
The plaintiff prays that the jury be called and sworn.
The Jurors called and sworn were: —

1. Honjost Herkimer.
2. Michel Grass.
3. John Everett.
•4. -Robert Macauly.
5. Thoms. Markland.
6. James Richardson.

7. James Robins.
8. Donald McDonell.
9. David Brass.
10. Arch'd Thomson.
11. Christ'r Georgen.
12. John Duncan.

John Ferguson
vs.
JohnCascallen. (From Thursday
last.)

The plaintiff having informed the Court and jury of
the nature of this action, as stated in his declaration prays
that Joseph Forsyth, merchant, of Kingston, may be
called and sworn.
The said Joseph Forsyth being called and sworn, de
poseth that sometime in the course of the last week that
the defendant came to his house and said 'to this de
ponent: that the plaintiff had in his possession a certain
note of the defendant's for fifty pounds, which said note
was obtained in a fraudulent manner.
The plaintiff produced in evidence a certain writing
subscribed with the defendant's own hand.
The defendant prays that no written evidence may be
taken in this cause, because that the defendant is charged
in the declaration for words spoken only.
The plaintiff saith that his declaration sets forth,
speaking-, uttering, and publishing, and that the said
writing is publishing.
The Court over-rule the motion of the plaintiff and
order that no written evidence can be given in this cause.

346

UPPER CANADA COURT RECORDS.

for reason that the damages laid in his declaration are for
speaking only.
Evidence for plaintiff sworn: Joseph Forsyth, Titus
Simons, Hazelton Spencer.
Evidence for defendant sworn: Ebenezer Washburn,
Dan'l McMuUan, Rich'd Cartwright, Jun.
The jury ¦withdrew to consider of their verdict, and,
having returned into court, by their foreman, • Eobert
Macauley, gave their verdict for the defendant.
The Court ¦will take time to consider of the verdict of
the jury.
The Court adjourn until Thursday next.

Donald .McDonell,
of Kingston,
merchant,
plaintiff, vs.
Mathew Dies, of
Fredericksburg,Sn said district,
defendant.

THURSDAY, THE 31st DAY OP MARCH, 1791.
The Court met pursuant to adjournment.
Present: Richard Cart-wright, Jun., and NeU McLean,
Esquires. The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declar
ation. x4.1exander McDonell appears for the defendant, and
produces the defendant's warrant of attorney to acknowl
edge judgment in this cause for the sum demanded in the
declaration. The plaintiff prays that the Court will give judgment.
The Court having duly considered the defendant's said
warrant of attorney filed, do order and adjudge that the
plaintiff shall recover of the defendant the sum of twenty-
five pounds, twelve shUlings and elevenpence, current money
of this Province with costs of suit.

Robert Macauly,
of Kingston,
merchant, plaintiff, vs.
Mathew Dies, of
FYedericksburg,defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion, likewise the said notes, of tenor and date as set
forth in said declaration, which are filed.
Alexander McDonell appears for the defendant and
filed warrant of attorney, acknowledging the plaintiff's
demand as set forth iu his said declaration.
The plaintiff prays that judgment may be given
thereon. The Court having duly examined the said warrant of
attorney, likewise the note, filed, do consider that the
plaintiff shall recover of the defendant the sum of thirty:
two pounds, eleven shillings and tenpence for said ^olna

UPPER CANADA COURT RECORDS.

247

with eix pounds, six shillings and elevenpence currency
for interest due thereon, together with costs of suit.
The plaintiff appears in person and prays for a new
trial in this cause, for reasons, filed.
The plaintiff likewise prays that the deposition be
taken of the foreman of the jury and of one other of
the jurors.
The defendant appears in person and acknowledges
that he had caused to be conveyed to the jury, a certain
paper containing the substance of his pleadings in court.
Eobert Macauley, foreman of the jury in this cause,
upon oath declares: That the verdict of the jury was
intended and agreed upon before their coming into court;
That the defendant should have five shillings damages,
but that was only to be mentioned should the Judge
require to know what damage the defendant had sustained.
Donell McDonell, one of the jurors in this cause, upon
oath, declares that the verdict of the jury in this cause,
was intended and agreed upon by the jury that the
defendant should recover only five shillings damages from
the plaintiff.
The Court will take time to consider the motion of
the plaintiff for a new trial, and that judgment on the
verdict of the jury may be postponed until next term.
The court aidjoumed until Friday, the first day of
July next, FRIDAY, 1st JULY, 1791.
The court met pursuant to adjournment.
Present :
The Honourables Rich'd Cart^wright, Jun., Neil
McLean, Hector McLean, Esquires.
The plaintiff appears in person and prays that this
cause may be tried next term.
The Court do order that this cause may be tried as
prayed, there being no opposition made on the part of
the defendant.

John Ferguson
vs.
John Cascallon.

July term.

John Ferguson,
plaintiff, vs.
Mathew Dies,
defendant. (Prom last term.)

John Ferguson appears for the plaintiff and prays
that this cause may be tried on Friday next, and that the
attestation of the said plaintiff may be now taken.
The plaintiff having duly attested his account filed
against the defendant, the Court order that this cause
may be tried as prayed.
The Sheriff returned that he has duly summoned the
defendant to appear.

John Howell,
plaintiff, vs.
Joseph Westly,
defendant. (From last term.)

¦248

UPPER CANADA COURT RECORDS.

-R'illiam Cox,
of Adolphustown,
plaintiff, vs.
Joseph Allen,
of said place,
defendant.

Bernard Englehart
vs.
George Flele.

The plaintiff appears in person and filed his declara
tion. The defendant also appears in person and saith that
he is not indebted to the plaintiff.
The plaintiff in reply saith that the defendant is
indebted to him in manner as set forth in his declaration,
which he is ready to prove.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. Chirk Viele appears in person and saith that he ha.-
been summoned by a wrong name, and prays that he may
be dismissed from this action.
The said defendant maketh oath that his name i.-
Chirk Yiele and not George Fiele as entered ih the sum
mons and declaration. Therefore order that he be dis
missed with costs.

.A-lexander
Chisholm, of Thurlow,
plaintiff, vs.
William Johnson,
defendant.

John Trompour, c
Adolphustown, plaintiff, vs.
Peter VansKIver,
of said place,
defendant.

John Mosier,
of Kingston,
plaintiff, vs.
•Tames Gale, of said
pl.Tce. defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant also appears in person and saith that
he is in nothing guilty of the premises laid to his charge
in said declaration. That he is in possession of the lot
of gi-ound set forth in the declaration, but that the plain
tiff hath no right or title to it.
Thc plaintiff saith that the defendant is guilty in
manner aforesaid, which he is ready to prove.
The defendant prays that this cause may be ordered
for trial next term, that his witnesses are not in this
district. The Court do order on motion of the defendant that
this cause be tried as prayed, and that the parties do
appear in this court on the first return day of next term.
The Sheriff returned that he has duly summoned the
said defendant.
Thc plaintiff appears in person and filed his declara
tion. Thc defendant being duly called made default.
Thc plaintiff prays that default be recorded.
Thc Court order accordingly.
The Sheriff returned that he has duly summoned the
defendant.

UPPER CANADA COURT RECORDS.

249

The plaintiff appears in person and filed declaration.
The defendant being duly called made default.
The plaintiff prays that the default be recorded.
Ordered accordingly.

The Shgriff returned that he has duly summoned the
defendant. James Dawson appears for the plaintiff and
filed power of attorney.
The defendant also appears in person and saith that
he is in possession of the lot of ground stated in the
declaration, but that the plaintiff hath no right or title
to it. The plaintiff saith that the lot of ground in question
is the property of the said Jno. Stringer, as set forth
in the declaration, and prays time to produce his evidence.
The Court order that this cause may be tried next term.
The Sheriff returned that he has duly summoned thc
defendant. The plaintiff appears in person and filed his declara
tion. The defendant also appears in pei'son and acknowl
edges himself indebted to thc plaintiff tho sum set forth
in said declaration.
The plaintiff prays that judgment be aiven accordingly.
The Court do therefore consider that the plaintiff
shall recover of the said defendant the sum of twelve
pounds, eleven shillings and fourpence halfpenny currency
of this Province with costs of suit.

John Stringer,
late of Ernestown,
plaintiff, vs.
Joshua Bootli,
of said place,
defendant.

John Howell,
of Sophlasburg,
plaintiff, vs.
¦William McKay,
defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant also appears in person and saith that
he is not indebted to the plaintiff in manner as set forth
in said declaration.
The plaintiff in reply saith tliat the defendant is in
debted to him in manner as set forth in declaration.
The defendant prays time may be allowed him to
plead further to this action.
The Court order that this cause may be tried next
term and that the parties do appear in this court on the
first day of next term.
The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.

Donald McDonell,
of Kingston,
merchant,
plaintiff, ve.
¦WnUam MacKay,
of said place,
defendant.

Peter Clark,
plaintiff, vs.
James Gale,
of Kingston,
defendant.

250

UPPER CANADA COURT RECORDS.

Robert Hamilton
and Rich'd Cart
wright, Jun., of
Kingston,merchants,plaintiffs, vs.
Timothy Prindle,
of Marysburg,
yeoman, defendant.

The plaintiff prays that the default be recorded. Or
dered accordingly.
The Sheriff returned that he has duly summoned the
defendant. Rich'd Cartwright, Jun., appears for the said plaintiffs
and filed declaration.
The defendant appears in person and acknowledges
himself indebted to the plaintiffs the sum demanded in
said declaration.
The plaintiffs prays that judgment be given accord
ingly- The Court therefore consider that the plaintiff may
recover of the said defendant the sum of twenty-four
pounds and sixpence halfpenny currency of the Province
with costs.

Robert Hamilton
and Richard
Cartwright, Jun.,
of Kingston,
merchants,
plainliffs, vs.
John Edgar, of said
place, defendant.

The Sheriff returned that he has duly summoned the
defendant. Richard "Cartwright, Jun., appears for the plaintiffs
and filed declaration.
The defendant also appears in person and acknowledges
himself indebted to the plaintiffs the sum demanded in
said declaration.
The plaintiff prays that judgment may be given ac
cordingly. The Court having considered the acknowledgment of
the defendant do adjudge that the plaintiffs may recover
of the said defendant the sum of thirty-two pounds, three
shiUings and fourpence currency of this Province with
costs.

Richard Cart
wright, Jun.,
of Kingston,
plaintiff, vs.
James Gale,
gentleman, of same place,
defendant.

Robert Hamilton
& Richard Cart
wright, Jun.,
of Kingston,
merchants, plaintiffs, vs.
Alex'r McKenzie,
of Pittsburgh, late
En's in the Regm't
of Royal Yorkers,
defendant.Hamilton &
CartT^-rlght vs.
Baron de
Reitrenstein. (From 10th
January, 1791.)

The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in person and filed declaration.
The defendant being duly' called made default
The plaintiff prays that default be recorded. Ordered
accordingly. The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.
The plaintiff prays that default be recorded. Ordered
accordingly. The Sheriff returned that he has seized and taken in
execution, three several lots of ground in the first Con
cession of the Township of Marysburg, Nos. one, seventeen
and twentj'-seven, containing six hundred acres les.^ or

UPPER CANADA COURT RECORDS.

251

more, which he has advertised to be adjudged to the
highest bidder on the twenty-eighth day of October next.

The parties personally appear and do mutually agree
on motion of the defendant that a venire may issue,
returnable on Wednesday next. Ordered accordingly.
The parties personaUy appear and mutually agree that
this cause may be tried on Thursday next. Ordered
accordingly. Ordered by consent of "parties for next term.

The Sheriff returned that he has taken in execution
a lot of land in the first Concession of Fredericksburg,
No. twenty, containing one hundred acres, with a dwelling
house thereon built, which he has advertised to be sold
to the highest bidder on the eighteenth day of August next.

Titus Simons.
plaintiff, vs.
Joseph AUen,
defendant. (From last term.)
Titus Simons,
plaintiff, vs.
Joseph Allen,
defendant. (From last term.)
John Ferguson
vs.
John Carscallan.
(From last term.)
Hamilton & Cart
wright vs.
Mathew Dies.
(Prom March
term.)

The Sheriff returned that he has seized and taken in
execution a lot of land in the first Concession of Fredericks
burg, No. sixteen, containing two hundred acres, with a
dwelling house thereon, also a- frame, which he has ad
vertised to be sold to the highest bidder on the eighteenth
day of August next.

Macaulay and
Markland vs.
Greorge IMcGinn.
(Prom 24th March
last.)

The' Sheriff returned that he has seized and taken in
execution a lot of land in the first Concession of Fredericks
burg, No. twenty-five, containing two hundred acres, -with
a house and barn thereon, which he has advertised to be
sold according to law on the twenty-seventh day of October
next.

Macauly &
Markland vs.
John Howard, Seti
(Prom Sth July,
1790.)

The Sheriff returned that he has seized and taken in
execution a lot of land in the first Concession of Fredericks
burg, No. t,wenty-five, containing two hundred acres, with
a house and barn thereon, which he has advertised to be
sold according to law on the twenty-seventh day of October
next.

Joseph Forsyth
vs.
John Howard, Sen.
(From Sth July,
1791.)

The Sheriff returned that he has taken and seized in
execution a lot of land in the first Concession of Fredericks
burg, number sixteen, containing two hundred acres, with
a dwelling house and barn thereon, also a new frame for
a dweUing house, all of which he has advertised to be
sold according to law, on the eighteenth day of August
next.

Joseph Forsj'th
& Co. vs.
George McGHnn.
(From 24th March
last.^

20'4

UPPER OANADA COURT RECORDS.

The Sheriff returned that he has seized and taken
in execution three milch cows which will be sold to the

Ebenezer
Washburn vs.
(Prom 24th March highest bidder on the eighteenth day of August next
^ The court adjourned to Wednesday next.

Titus Simons,
plaintiff, vs,
Joseph Allen,
defendant. (From last Friday.)

ilacaulay & Mark-
land vs.
George McGinn.

WEDNESDAY, 6th JULY, 1791.
The Court met pursuant to adjournment.
Peesent :
Richard Cartwright, Jun., Neil McLean, Hector
McLean, Esquires.
The Sheriff returned the venire.
The plaintiff appears in person.
The defendant also appears in person.
The Jury called and sworn were: —

1. Joseph Forsyth.
2. David Brass.
3. James Richardson.
4. George Young.
5. John Duncan.
6. John Everett.

7. James Russell.
8. Christ'r Georgen.
9. Malon Knight.
10. Sam'l Ainsley.
11. Joseph Pritchard.
13. John Trompour.

Evidence for plaintiff sworn. Joseph Forsyth, Bryan
Crawford, Barnabas Day.
Upon motion of the plaintiff the depositions of Charles
Bennett and Nathan Brisco were openly read and filed.
Evidence called by the defendant and 'sworn. Oliver
Church, Esq., John Mosure, Muajah Purdy, Emanuel
Elderbee, Amos Ainsley.
The jury withdrew to consider of their verdict and
having returned into court by their foreman, Joseph
Forsyth, of Kingston, say that they find a verdict for
the defendant.
The Court not being prepared to give judgment will
take time to deliberate.
Thomas Markland appears and prays that the Sherifl
may be ordered to shew cause why he has not duly executed
the writ of execution to him directed in this cause in not
seizing the moveables belonging to the defendant.
The Sheriff also appears and prays the Court to aUow
him to amend the returned said execution.
The Court do order that the Sheriff may be aUowed
to amend the return as prayed. Returnable on Friday
next. Adjourned until to-morrow at 10 o'clock.

UPPER CANADA COURT RECORDS.

253

THURSDAY, 7th JULY, 1791.
The Court met pursuant to adjournment.
Peesent: The same Judges.
The plaintiff appears 'in person and filed his account
against the defendant. Balance in- his favor one hundred
and fifty-two pounds, nineteen shillings and sixpence. ^
The defendant also appears in person and sayeth that
he is not indebted to the plaintiff and that the account
now exhibited has been already finally settled, which he is
ready to prove, and that he never received any rum from
the plaintiff by the quantity of 5 gals, and charged in
said account, and prays that this evidence may be called.
The depositions of WiU'm Bell and John McMahan
were taken and fUed on motion of the defendant.
The defendant filed the account formerly delivered
him by the plaintiff and settled, prays that the several
exhibits filed in this court in a certain cause : Allen against
Simons last September term, may be produced.
The Court do order the Clerk that the said exhibit may
be produced as prayed.
The plaintiff prays that the deposition of John German
may be taken.
The deposition was taken and filed as prayed.
The Court will take time to deliberate and give judg
ment in this cause to-morrow.

Titus Simons
vs.
Joseph Allen.
(Prom Friday last.)

¦Peter Clark appears for the plaintiff and filed warrant
of attorney. The defendant appears in person and by consent of
parties, the Court do order that this action may be deter
mined by arbitration, and the parties have agreed that
James Robins and James 'Clark shall be the arbitrators.
The Court do order that the said award shall be given
in writing before the last day of this month.

¦William Cox
-va.
Joseph Allen.

FRIDAY, 8th JULY, 1791.
The court met pursuant to adjournment.
Present: The same Judges.

Titus Simons
vs.

The Court having examined the papers, and duly
weighed the evidence produced in this cause, and it being •[prom ytstl?day)
also fully within their own knowledge and recoUection
that on a former trial instituted by the now defendant

254

UPPER CANADA COURT RECORDS.

against the plaintiff, did ground his defence on a final
settlement which he averred and attempted to prove had
taken place between him and the now defendant on the
third of October, one thousand seven hundred and eighty-
nine, alleging that the note witnessed by William Bell,
was then given by him, the now plaintiff Simons, to
the defendant Allen, in full of all debts due the said
Allen by the said Simons; are fully satisfied that a final
settlement and liquidation of accounts by the defendant,
did at that time actually take place between the parties;
and that the plaintiff's demand for monies, etc., previous
to that period, is a most impudent attempt to prevent
the forms of laAV to the purposes of knavery and injustice.
But from the avowal of the defendant and other circum
stances there appears to have been transactions between
him and the plaintiff whereby the defendant is indebted
to him in the sum of four pounds, nineteen shillings and
sixpence. The Court do consider that the plaintiff shall recover
of the defendant the aforesaid sum of four pounds, nineteen
shillings and sixpence debt with twenty-two shillings and
twopence costs, which would have accrued had the action
been brought as it ought, for a sum under ten pounds
sterling. Articles allowed by the Court are as following: —
lOy^ gals, rum at 7s. cost price .... £3 11 9
An entertainment  13 4
Rum and cheese to servants  5 0
Paid E. Hicks  9 5

£4 19 6

Bobert MacAuley &
Thomas Markland,
merchants & co
partners, of King
ston, plaintiffs,
vs.
John Cascallan, of
FVederlokabn rg,
in said district,
defendant.

The other articles charged under dates posterior to
the third of October, being by the plaintiffs own allowance
in order of time prior thereto.
The Sheriff returned that he has duly summoned the
said defendant.
Thomas Markland for the plaintiffs appears in person
and filed declaration.
The defendant being duly called made default.
The plaintiffs prays that default be recorded.
The Court do order that default be recorded as prayed.

George IMagin, of
Prederickstrurg,plaintiff, va
Archibald Grant,
-William Crawford,
of said place,
defendants.

The Sheriff returned that he has duly summoned the
said defendants.
Donald McDonell appears for the said plaintiffs and
filed warrant of attorney.

UPPER CANADA COURT RECORDS.

255

The defendant being duly called made default.
dei-ed accordingly.

Or

The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.
The plaintiff prays that default be recorded.
Ordered accordingly.

James Clark,
of Kingston,
plaintiff vs.
John deOourcy
Gill, of
Fredericksburg,defendant.

The Sheriff returned that he had taken and seized
in execution a lot of land in the first Concession of
Fredericksburg, No. sixteen, containing two hundred acres,
with a house and barn, and a frame for a house thereon,
not being able to come at any of the moveables of the
said George McGinn, he having locked his doors and con
veyed his cattle off the farm aforesaid to some place
unknown to the Sheriff, he has therefore advertised accord
ing to law the above-mentioned lot of land, house, etc.,
for sale, on the eighteenth day of August next.

Macauley & Mark-
land vs.
George Magln.
(Prom ¦Wednesday
last.)

John Ferguson appears for the plaintiffs and prays
that judgment may be entered against the defendant.
The Court having duly considered the default of the
defendant, likewise examined the several exhibits filed
in this cause, do consider that the plaintiff shall recover
of the defendant the sum of thirty-two pounds, sixteen
shiUings and fourpence Iialfpenny currency for his debt,
with c-osts of suit.

John Howell
vs.
Joseph ¦Westly.
(Prom Friday last..

The plaintiff appears in person and exhibited the
agreement set forth in his declaration.
The defendant being again duly called again made
default. The plaintiff informs the Court that the said lot of
land sold him by the defendant, does not contain more
than one hundred and fifty acres, and that the defendant
never had possession of more than the said one hundred
and fifty acres of land in the Township of Sophiasburg,
and that he has never received any compensation in land
or otherwise for the deficiency in the aforesaid agreement.
On motion of the plaintiff the evidence of Alxr. Atkin
and Jno. German is taken and filed.
The Court ¦will deliberate.

John Trompour
vs.
Peter "V^anskiver.
(From last term.)

Tlie plaintiffs appears in person and filed his account
against the defendant.
The defendant being duly called again made default.
The said Rfchard Cartwright having duly attested the

Robert Hamilton
and Richard
Cartwright V8.
Alex'r McKenzie.
(Prom Friday last.)

256

UPPER CANADA COURT RECORDS.

account filed prays that judgment may be given against
the defendant.
The Court having considered the default of the defend
ant, likewise examined the several exhibits filed, do adjudge
that the plaintiff may recover of the defendant the sum
of twenty pounds, four shillings and tenpence currency
with costs of suit, taxed at three pounds, eight shillings
and sevenpence currency.

Robert Hamilton
& Richard
Cartwright vs.
James Gale,
defendant.

John Mosure
vs.
James Gale.
(Prom last Friday.)

I'eter Clark
vs.
James Gale.
(Prom Friday
last.)

The defendant having been iigain duly called made
default. The plaintiffs appear by Richard Cartwright and filed
the several acknowledgments of the defendant set"
- forth in their declaration, and prays that judgment may
be given against the defendant.
The Court having considered the several defaults made
by the defendant, likewise examined the several exhibits
filed in this cause, do order and adjudge that the said
plaintiffs may recover of the defendant the sum of thirty-
six pounds, three shillings and sixpence currency for their
debt, with costs of suit taxed at five pounds, six shillings
and sevenpence.
The plaintiff appears in person.
The defendant being again duly called made default.
The plaintiff exhibited and filed his certain promissory
note payable to John Gallaway for the sum of twenty-five
pounds, bearing date the 24th day of May, 1786, and it
appears by the evidence of James Robins that the said
note was granted for security to the said Gallaway for a
debt due him by the defendant, and it appears that the _
plaintiff has paid his said note. It appears to the Court
by the acknowledgment of the plaintiff as well as his
written obligation filed that he has received property of
the defendant's amounting to the sum of eight pounds,
fifteen shillings.
The Court having considered the default of the defend
ant and examined the several exhibits filed do adjudge
that the plaintiff shall recover of the defendant the sum
of twenty pounds, nineteen shillings and threepence -or
his debt and interest with costs of suit.
The plaintiff appears in person and filed the note and
account set forth in his declaration.
The defendant being again duly called made default.
The plaintiff prays that judgment may be given against
tlie defendant.
The Court having considered the default of the defend
ant, likewise the several exhibits filed, do adjudge that

UPPER CANADA COURT RECORDS.

257

the plaintiff may recover of the defendant the sum of
twelve pounds, fifteen shiUings and fivepence with costs.
The court adjourned until Monday next.
MONDAY, 11th JULY.
The court met pursuant to adjournment.
Present: The same Judges.
Peter Clark appears for the plaintiff and filed warrant
of attorney, and prays the Court that judgment may be
given in this cause.
It appears from the evidence in this cause that the
plaintiff bought from the defendant three hundred and
fifty acres of land, of which from the situation of the
ground, unknown to the parties at the time of sale, there
is in fact not over one hundred and fifty acres, the second
Concession being entirely wanting. On these, by the testi
mony of Mr. German, there appears to have been improve
ments of considerable value, and there appearing to be
no fraud in the transactions, nor any damages sustained
by the plaintiff further than pay'ng for more land than
he has or can recover, ample justice will be done him by
re-imbursing him a tolerable proportion of the purchase
money. The Court therefore consider that the plaintiff
do recover of the defendant the sum of fifty pounds with
costs of suit.
The defendant appears in person and prays that default
may be taken off.
The Court do order that the default may be taken off
on paying costs.
The defendant pleads that the plaintiffs hath no right
to .sue for the said note, because he had frequently tendered
payment to the said Ferguson that is to say the said
Ferguson's own note of hand due twelve months before
last June which the said Ferguson refused to accept, and
further that he informed the plaintiffs of such tender
and refusal, and desired that they would not take the
said note as he did not consider himself liable for the
payment and that the plaintiffs assured him he would not.
The plaintiff also appear in person and saith that he
does not consider the defendant's plea to be in the least
sufiicient to invalidate his demand against him, and filed
the defendant's note bearing date as set forth in his
declaration and prays the Court to give judgment.
The Court will take time to deliberate.
Adjourned untU Friday next.
18a

John Trompour
va.
Peter 'Vanrfciver.
(Prom the 9th Inst.)

Macauly & Mark-
land vs.
John Carscallan,
(Prom last
Saturday.)

258

UPPER CANADA COURT RECORDS.

FRIDAY, 15th JULY, 1791.

Present : The same Judges.

James Clark
vs.
John dec'y Gill.
(Prom Friday last.)

John Ferguson appears for the plaintiff and" filed
warrant of attorney.
The defendant being again called this day made default.
The plaintiff filed the defendant's notes bearing date
as set forth in said declaration.
The Court having examined the said notes it appears
to the Court that one of the said notes bearing date the
19th day of March last, may be for a part of the judgment
obtained against the defendant in March term last, there
fore the Court will not proceed to judgment until they
are better satisfied of this matter by the plaintiff in
person.

Titus Simons
vs.
Joseph Allen.
(Prom 6th Inst.)

Macauly & Mark-
land vs.
John Carscallan.
(Prom Monday
last.)

The defendant appears in person and prays judgment
may be entered in this cause.
The Court having considered the verdict of the jury,
do order that the defendant be dismissed ¦with costs taxed
at fourteen pounds, six shillings, and they do further
order that the judgment obtained in this Court on Friday
last against the defendant by the said plaintiff for the
sum of six pounds, two shillings may be set off as part
payment of the costs now adju(iged to him.
Thomas Markland appears for the plaintiffs and prays
that judgment may be entered in this cause.
The Court not being yet prepared to give judgment
will take time to deliberate.
Adjourned until Friday the 16th September next.
(1791.)

COURT OP
COMMON
PLEAS.

DISTRICT OF MECKLENBURG, KINGSTON, U.C.
FRIDAY, 16th SEPTEMBE.R.

SEPTEMBER
TERM,
1791.

David Betton, of
Kingston,
plaintiff, vs.
James Connor, of
said place,
surgeon,
defendant.

The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright and
Neil McLean, Esquires.
The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in person and filed his declara
tion. John Howard appears for the defendant and filed war
rant of attorney.

///'

UPPER CANADA COURT RECORDS.

259

And the said defendant filed his plea in answer to the
declaration and saith that he is not guilty.
The plaintiff persists in affirming that the defendant is
guilty, in manner and form as set forth in his declaration,
and prays that time may be allowed until next term to
procure his evidence.
On motion of the plaintiff the Court do order that time
may be allowed as prayed.

The plaintiff, by James Dawson, his attorney, appears
and saith that he is now ready for trial.
The defendant appears in person and saith that he is
also ready for trial.
The Court orders that this cause may be tried
to-morrow.

John stringer,
vs.
Joshua Booth.
(Prom last term.)

The plaintiff appears in person and prays that the de
fendant may be ordered to plead at a short day.
The defendant also appears in person and prays time
to procure his evidence.
The Court do order that this cause may be tried on
Friday next.

Donell McDonell,
vs.
¦William iMacKay.
(Prom last term.)

The plaintiff appears in person and prays to withdraw
his action and that the note payable to Florence Donavon
may be returned, and that the note payable to James
Clark, or order, may remain in court as it was -taken in part
payment of judgment obtained against the defendant in
March term last.
The Court do order that the note prayed for may be
restored and that the plaintiff pay costs.

James Clark.
vs.
Jno. Dec'y Gill.
(Prom last term.)

John Culbertson appears for the plaintiffs and prays
that judgment may be given in this cause.
It does not appear that the said John Culbertson has
legal power to appear for the plaintiffs, therefore the Court
cannot proceed on any motion made by the said John
Culbertson.

Macauley and
Markland vs.
John Carscallan.
(From last term.)

Peter Clark appears for the plaintiff and filed the award
delivered by the arbitrators in writing and pray the Court
to give judgment.
The defendant also appears in person and declares that
he is 'ready to satisfy the said award as soon as a bill of
costs may be delivered by the plaintiff.
The plaintiff prays time until to-morrow to deliver bill
of costs. The Court order that time may be aUowed as prayed.

¦William Cox
vs.
Joseph Allen.
(From last term.)

26,0

UPPER CANADA COURT RECORDS.

John Ferguson
vs.
Mathew Dies.
(Prom last term.)
John Ferguson
vs.
John Carscallan.
(Prom las'! term.)
Alex'r Chisholm
vs.
William Johnson.
(Prom last term.)
John Mosure
va.
James Gale.

The plaintiff was duly caUed and did not appear.

The plaintiff was duly called and did not appear.

The plaintiff was duly called 'and did not appear.

The Sheriff returned that he has taken in execution as
belonging to the said James Gale a lot of land. No. five, in
the second Concession of the To^wnship of Kingston, con
taining one hundred acres, also lot No. five, in the Third
Concession, containing two hundred acres, and half a lot
No. seventeen in the Third Concession, containing one
hundred acres, all in the said To^wnship of Kingston, con
sisting in the whole of four hundred acres, the whole of
which is advertised for sale according to law to be sold at
Kingston on the thirtyeth day of December next, the said
James Gale not having any goods or chattels in this dis
trict whereof he could levy the said debt and costs.

John Stringer
vs.
Joshua Booth
(Prom yesterday.)

SATURDAY, 17th SEPTEMBER, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Neil McLean, and
Hector McLean, Esquires.
The plaintiff appears by James Dawson, his attorney,
and prays that his evidence may be called; to prove his
title to the lot of land set forth in his declaration.
The defendant^ appears in person and objects to the
hearing any parole evidence to prove the plaintiff's title
to the said lot of land, because by law no verbal agreement,
relative to landed property can be proved by parole testi
mony, wherefore the defendant prays that this action be
dismissed with costs.
The Court do consider that the defendant's reason for
objecting to parole evidence does not hold in this ease
This suit is not to recover possession of land or damages in
consequence of non-performance of an agreement, but for
damages for unjustly detaining lands alledged to be
originally granted to the plaintiff, and the original grant
for which, it is averred by the plaintiff, that the defendant
unfairly became possessed of- and doth detain, which cir
cumstance can only be proved by parole testimony. It is
therefore ordered that the plaintiff proceed with his
proofs.

UPPER CANADA COURT RECORDS.

261

The evidence on behalf of the plaintiff having been
gone through, the defendant called no witness, but pro
duced a paper signed John Stringer purporting that, he,
the said John Stringer, had exchanged with Jesse Booth
the lot in question. No. 40, for £2 8s. lOd. lot No. 3 in
First Township, and saith that the matter was settled by
the said Jesse Booth and Stringer before the Deputy Sur
veyor General, Mr. CoUins, that he, the said Jesse Booth,
was to have the lot No. 40.
The Court not being yet agreed what judgment ought to
be given in this cause will take time to deliberate thereon
until Friday next, at which time the parties are directed
to attend.

The plaintiff moves the Court that the sum of three
pounds, twelve shillings and eightpence, paid the Sheriff
for his fees in this suit, may be added to the costs hereto
fore taxed, as not being included in the bill laid before
the Court at that time. But the Clerk and Sheriff having
through sickness been obliged to withdraw from the court,
time will be taken to inquire into this matter.

Allen vs.
Simons.

On motion of the plaintiff it is ordered that the Sheriff
do amend the return made on the execution this day and
defective for want of describing with sufficient accuracy
the situation of the property seized, and that the said re
turn so amended be made to this Court on Friday next.
John Howard represents to the Court that the Sheriff
hath under an execution from this Court advertised for
sale his farm in Fredericksburg in a very defective
manner, by which he is apprehensive that he may be
injured on account of its lessening the value in the opinion
of persons inclined to become purchasers. That his
farm consists of 150 acres, of which from nine to ten acres
are meadow, about thirty acres of arable land, and the rest
wood. That there is thereon a dwelling-house, 44 by 23 ft.,
and a log barn 42 by 22 ft., and moves that the Sheriff
made be ordered so to describe it in his advertisements. But
he not being prepared to satisfy the Court upon his oath
of these particulars no order is made thereon.

James Clarke
vs.
John De Courcy
Gill.

Peter Clark appears for the plaintiff and fiiled power of
attorney, and prays that this cause may be ordered for
next term, the said John Ferguson being in Montreal.
The defendant does not appear.
On motion of Mr. Clark, the Court do order that this
cause may be heard as prayed.

John Ferguson
vs.
John Carscallan.
(Prom yesterday.)

262

UPPER CANADA COURT RECORDS.

John Ferguson
vs.
Mathew Dies.
(From yesterday.)

Peter Clark appears for the plaintiff and prays that this
cause may be ordered for trial on the first return day of
January term next.
The defendant does not appear.
The Court on motion of Mr. Clark do order that this
cause may be tried as prayed.
As it is considered by the Court to be irregular for the
Clerk of this Court to act as attorney in any cause brought
before them, it is ordered that in future he shall not be
admitted to appear as agent to manage or conduct any suit
in this court, or make any motion except where he is him
self .personally interested.
It is also ordered by the Judges that no process shall
issue from this court for costs due to any of its officers
until a regular account of said costs shall have been pre
viously delivered to the party.
The Court adjourned until Friday next.

FRIDAY, THE 23rd SEPTEMBER, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright and NeU McLean,
Esquires.

John Stringer
vs.
Joshua Booth.
(Prom Saturday
last.)

The plaintiff grounds his claim to the lands in ques
tion on what is called a certificate of occupation received
by him from the Deputy Surveyor General, and which is
in the following form : —
" Province of Quebec."
" The bearer hereof, A. B., being entitled to one hun
dred acres of land by his Majesty's Instructions to the
Governor of this Province, has drawn lot No. Forty, con
sisting of one hundred acres in full of the said proportion
in the Seigneurie of No. Two, and having taken the oath
and made and signed the declaration required by the In
structions, he is hereby authorised to settle and improve
the said lot without delay, and being settled thereon he
shall receive a deed of concession at the expiration of
twelve months from the date thereof."
Such certificate is signed by the Governor and counter
signed by the Surveyor General or Deputy Surveyor
General. This certificate is evidently nothing more than a
promise on the part of the Crown that if the person to
whom such certificate is granted shall become a resident and
settle himself on the lands expressed in the certificate with a
view to cultivate them, he shall, in the event of his being
so settled, receive at the expiration of twelve months a deed

UPPER CANADA COURT RECORDS.

263

of concession, or legal title to such lands ; as by reference
to the King's Instructions for granting the waste lands of
tbe Crown to the loyalists and disbanded troops will more
fully appear. And as it appears on evidence that the
plaintiff hath not performed the conditions on his part ; but
after remaining from two to three months at most on the
land, and making some very trivial improvements which
indeed hardly deserve to be mentioned, abandoned it with
an avowed intention never to return, he must be considered
as forfeiting any title he could derive from such certifi
cate. It is not necessary to give any opinion respecting
the defendant's right to the premises, the plaintiff having
clearly no legal title to them. The Court do consider that
this suit be dismissed with costs.
The plaintiff appears in person and filed his account
against the defendant, amounting to ninety-two pounds,
one shilling, lawful currency, including the defendant's
note bearing date as set forth in the declaration.
The defendant also appears in person and saith that
with respect to the note filed against him, he ought not
to be charged therewith, judgment having been already
given against him for that note in the Court of Common
Pleas, in the District of Montreal, sometime in December,
one thousand seven hundred and eighty-seven, but time
having been given since last term for the defendant to
produce proof of this and no such being now offered, the
Court also supposing that no judgment could be given on a
note of hand, without the same being filed in the said
court, do consider the plaintiff's plea in this respect as
immaterial. And the defendant further saith that with respect to
the book account, he is not indebted in manner as set forth
in the declaration which he prays may be inquired of by
the Court.
And the plaintiff doth so likewise.
The Court do order that the parties may appear on
Wednesday next.
The Sheriff returned that he has duly summoned the
defendant to appear.
The plaintiff appears in person and filed his declar
ation. The defendant being duly called made default.
The plaintiff prays that default may be recorded.
Ordered accordingly.
The Sheriff returned that he has taken in execution
as belonging to John de Courcey Gill a lot of land in
Camden, First Concession, No. Pour, containing two hun-

Donell McDonell
vs.
-William McKay.
(Prom Friday
last.)

of

Peter Clark.
Kingston, plaintiff vs.
Joseph Allen, of
Adolphustown,
defendant.

James Clark.
vs.
John Dec'y Gill.
(P'rom March
term last.)

264

UPPER CANADA COURT RECORDS.

dred acres, also No. Six, in tbe First Concession, contain
ing two hundred acres, and also one half of lot No. Four,
in the Second Concession, containing one hundred acres,
which he has advertised according to law to be sold and
adjudged to the highest bidder on the thirtieth day of
December next at Kingston; the said John de Courcy GUI
having no goods or chattels in his district whereof he could
levy any part of said debt or costs.
Adjourned until Wednesday next.

Donell McDonell
vs.
¦William McKay.
(Prom Friday
last.)

WEDNESDAY, 28th SEPTEMBER, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. The plaintiff appears in person and perists in afiirming
that the defendant is indebted to him in manner as set
forth in his declaration, which he is ready to prove.
The' defendant also appears in person and objects to
the sum of ten pounds overcharged him for Mr. Lan-
singh's share of mess account between the 15th March and
28th August, 1789. The defendant also filed his account
against the plaintiff for the sum of fourteen pounds
currency. The plaintiff saith that with respect to the defendant's
account, excepting the sum of two pounds, it being for
fees of officer for making up manifests on shipping of
ofi&cers' stores in the King's vessels, he doth not think him
self entitled to pay it. These fees being established by
law in the case ~ of clearing merchants' vessels only. And
with respect to the ten pounds objected as a wrong charge
by the defendant, who alledges that, that sum should have
been placed to the account of PhUip P. Lansingh, Esq.,
who jointly ordered and partook of articles charged in the
said account to the amount of twenty pounds. And the
plaintiff saith that the several items charged in the said
account were furnished on the sole-credit and by the sole
orders of the defendant.
The deposition of Alexander McDonell was taken and
filed on motion of the plaintiffs.
The Court having fully heard the parties, likewise the
evidence in this cause, wUl take time to deliberate and give
judgment on Friday next.
Robert iciark The Sheriff returned that he has seised and taken as
Thoma's^^Loyd and belonging to the -within named Thomas Loyd and EUsha
(Prom 15th' July Crane, of Marysburgh, two milch cows, one young buU, and
two lots of land kno-wn by the name of lots number fifteen

UPPER CANADA COURT RECORDS. 865
and number sixteen, containing one hundred acres each,
which he has advertised according to law. But the plain
tiff requesting to stay the execution he has not proceeded
to the sale of the said cows and bull, as by the said execu
tion it is directed.
The Court adjourned until Friday next.
FRIDAY, 30th SEPTEMBER, 1791.
The Court met pursuant to adjournment.
Present: The three Judges.
The plaintiff appears in person and prays that the Doneii McDoneu
Court will give judgment in this cause. -wiiiiam McKay.
The defendant does not appear.
It is considered by the Court, that with respect to the
sum of ten pounds objected to by the defendant, being the
moiety of articles used in common by him and another
person to whom he aUedges that the plaintiff ought to
resort to for that sum ; as it appears in evidence that the
articles so objected to were furnished by his sole order, and
on his sole credit, the Court consider the objections as of
no weight. It rests with the defendant and not with the
plaintiff to have recour.-;e to this third person.
The set-off by defendant for fees on the entry of the
private effects of officer-, and others shipped in the King's
vessels, appears perfe-jti-;- just. It is indeed truly observed
by the plaintiff thai the law establishing the fees of a
Superintendent of Inlaid Navigation relate to private
vessels only. But his intervention is made necessary for
the shipping of private effects in the King's vessels, and
it does not appear incident to his office to do this business
gratis. Like every other man he is entitled to be paid for
his labour. Indeed the regulations settied by the Governor
plainly say, if you ship private effects in the King's vessels,
you must pay the superintendent twenty shiUings for his
trouble. It is optional to ship or not. Therefore by
shipping a debt of twenty shUlings is incurred to the super
intendent, who has a legal remedy for this sum against
the shipper in the same manner the owner has for the
established freight.
On examining the accounts and other papers laid before
the Court it appears that the defendant is indebted tothe
plaintiff the sum of seventy-four pounds, twelve shillings
and threepence ; it is therefore considered that the plaintiff
do recover of the defendant the aforesaid sum of seventy-
four pounds, twelve shiUings ahd threepence, together with
costs of suit taxed at six pounds, thirteen shiUmgs and
sixpence currency.
19a

266

UPPER CANADA COURT RECORDS.

Peter Clark
vs.
Joseph Allen.
(From Friday
last.)

Alexander Chisholm vs.
¦William Johnson.
(Prom last term.)

The plaintiff appears in person) and filed the several
notes and account as set forth in his declaration.
The defendant being again duly called made default.
The plaintiff prays that judgment may be given against
the defendant.
The Court having duly examined the several exhibits
filed, likewise considered the default made by the defendant,
do consider that the plaintiff shall recover of the defendant
the sum of eighteen pounds, seven shillings for his debt
and costs taxed at three pounds, eleven shillings and six
pence. The plaintiff appears in person and prays that the
Court may proceed to trial in this cause.
The defendant being duly called does not appear.
It appears that there was a rule of Court in this cause
the last term, that the parties should appear on the first
return day of this term, and as the plaintiff did not
appear at that time or at any time since, until to-day, nor
has given any notice of trial to the defendant.
The Court, on special instance of the plaintiff, do
order that the cause may be tried next term, and that his
failing to appear at the first day of this term shall not be
considered as a discontinuance.

JANUARY TERM.

MONDAY, 2nd DAY JAN., 1793.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., and Hector
McLean, Esquires.
The Court adjourned until to-morrow at eleven o'clock
in the forenoon.

Gabriel Gordon,
Lieutenant of His
iMajesty's Second
Battalion of 60th
Rest, of Foot,
plaintiff, vs.
Michel Grass of
Kingston,defendant. Terrence Hunt,
private soldier in
the 2nd Battalion
of 60th Regt. of
Foot at Kingston,
plaintiff, vs.
Titus Simons of
Kingston,
defendant.

TUESDAY, 3rd JANUARY, 1792.
The Court met.
Present: The same Judges.
The Sheriff returned that . he has summoned the
defendant. The plaintiff was called and does not appear.

The Sheriff has returned that he stimmoned the
defendant. The plaintiff appears in person and filed his declar
ation. The defendant was eaUed and made default.

UPPER CANADA COURT RECORDS.

267

Mr. Lansingh produces and filed a certain writing from
the defendant requesting him to make an excuse to the
Court for his not appearing which was owing to indispo
sition. The Court do consider that the said excuse not being
accompanied by an affidavit, it is ordered on motion of the
plaintiff that the default be recorded.
The Sheriff has returned that he summoned the
defendant. The plaintiff was duly called and does not appear.
The defendant appears in person and prays that this
action be dismissed, with costs.
The Court on motion of the defendant do order that
the defendant be dismissed and do recover of the plaintiff
twenty-five shillings costs.

John Huyck, of
Adolphustown, plaintiff, VB.
¦Willet Casey.
defendant.

The Sheriff returned that he has summoned the
defendant. The plaintiffs were called, and John Culbertson ap
pears and represents to the Court that the said Robert
Macaulay being unable to attend from sickness, and the
said Thomas Markland having been summoned to attend
the Coroner, the said plaintiffs pray that this cause may be
tried to-morrow, which is ordered accordingly. These
circumstances being within the knowledge of the Court.

Robert Macaulay
and Thomas Mark-
land, merchants,
and late
co-partners jn
trade under the
firm of Macaulay
and Markland.
plaintiffs, vs.
Daniel McMullan.
of Fredericksburg.
defendant.

The Sheriff has returned that he has summoned Christopher
11 -1 ,. -1 . Georgen, of
the defendant. Kingston, taylor.
The plaintiff appears in person and filed his declar- vs. '
„+• ^ -William Jones.
aiion. of said pla.ce,
The defendant was duly called and made default. defendant.
It is ordered on motion of the plaintiff that default be
recorded. The plaintiff appears and prays that this cause be David Betton
ordered for to-morrow.
Ordered accordingly.

vs.
James Connor.
(FYom last term.)

Christopher Georgen appears for the plaintiff and filed
power of attorney given by the plaintiff to James Clark,
Jun., which authorises the said James Clark to authorise
and appoint one or more attorneys under him, and the
said Christopher Georgen also filed a warrant of attorney
from James Clark to appear as counsel in this cause, and
the said counsel prays that judgment may be given on
motion for a new trial in this cause.
The Court wiU take time to deliberate further of and
concerning the plaintiff's motion for a new trial.

John Ferguson
vs.
John Carscaiien.
(From last term.)

¦268

UPPER CANADA COURT RECORDS.

John Ferguson
vs.
Mathew Dies.
(From last term.)

Alexander Chisholm vs.
-William Johnson.
(From last term.)

Province of
Quebec,District of
Mecklenburgh.

Robert Macaulay
and Thomas
Markland.merchants and
late co-partners,
under the firm of
Macaulay &
Markland, of
Kingston,
plaintiffs, vs.
John DeCourcey
Gill, late of
Fredericksburg, defendant.

Christopher Georgen appears for the plaintiff and filed
warrant of attorney from James Clark, Jun.
The defendant being called does not appear.
On motion of the plaintiff this cause is ordered for next
term. The plaintiff appears in person and prays that the
Court may proceed to try the issue joined.
The defendant also appears in person and prays that
further time may be allowed him to procure some papers
from Quebec necessary to prove his title to the premises.
As it appears to the Court that sufficient time has
already been allowed the defendant to procure any such
proof and that the defendant has actually received letters
from Quebec more than once since this cause was insti
tuted, it is ordered that the plaintiff may proceed to prove
his claims as by his declaration is set forth.
The plaintiff produced a certain writing as follows:—
Kingston, 15th AprU, 1789.
The bearer, Mr. Alexander Chisholm, being intitled to
Lord Dorchester's Bounty, by his order from the Land
Board, has drawn one half of lot No. 11 in the First and
Second Concessions, consisting of two hundred acres, in
full of the said proportion, in the Township of Thurlow,
and having taken this oath and made and signed this
declaration required by the King's instructions, he is
hereby authorised to settle and improve the said lot with
out delay, and being settled thereon he shall receive a Deed
of Concession at the expiration of twelve months from the
date hereof. Signed, Alexander Aitkin,
Dp'y G. Survey'r for the District of Mecklenburgh.
N.B.— East half of No. 11.
On motion of the plaintiff the deposition of John
Mcintosh was taken and filed.
The Court having this day fully heard the parties, and
the evidence called by the plaintiff, the defendant not
having called any evidence, but insisted that the plaintifi
had no title to the premises, the Court not being prepared
to give judgment will take time to deliberate.
The Sheriff has returned that he has duly summoned
the defendant to appear.
The plaintiffs were caUed, and John Culbertson appears
for them and informs the Court that the said Robert
Macaulay is unable to attend from sickness, and that the
said Thomas Markland is summoned to attend the coroner
as a juror, on an inquest to be taken this day, and prays
that this cause may be ordered for to-morrow.

UPPER CANADA COURT RECORDS.

269

The defendant being called does not appear.
The circumstances represented by John Culbertson
being within the knowledge of the Court, it is ordered that
this cause be called to-morrow.
Adjourned until to-morrow at eleven o'clock in the
forenoon. WEDNESDAY, THE 4th DAY OF JANUARY, 1792.

The Court met.
Present: The same Judges.
The plaintiff and defendant were called and did
appear. The Court having upon mature deliberation considered
the arguments of the parties, are of opinion that the con
versation that passed between the plaintiff and defendant
in the spring, one thousand seven hundred and eighty-
nine, as stated in the deposition of John ^Mcintosh, can
by no means be construed as a surrender of the premises
to the plaintiff or such a recognition of his right to them
as would be insufficient in law to entitle him to recover
the possession, or damages for w'th-holding it or his re
presentative. Besides, as in his declaration the plaintiff
sets forth no other title to the lands than as haying drawn
them (meaning their being a'ligned him as a part of the
lands promised by Government to persons of his descrip
tion), no evidence of a title grounded on any other matter
would be admissible.
The plaintiff's claim therefore must not rest solely on
the authority of the writing signed " Alex'r Aitkin. Dp'y
6. Surveyor for the District of Mecklenburg " without
entering into the question how far such writing could
be at all considered as a legal conveyance. We all know
that the Deputy- Surveyor hath of himself no authority to
grant the lands of the Cro-svn, and can only do it by virtue
of some power derived from His Majesty's Representative
the Governor of the Province. How such power is derived
to him, and that it hath been in this instance strictly pur
sued should have been particularly shown by the plaintiff.
The Court cannot take for granted either that such power
exists, or that it hath been duly executed, unless it hath
been circumstantially "set forth and proved by the plaintiff.
The omission is therefore fatal, and without entering into
the merits of defendant's title there must be judgment of
non-suit. The plaintiff appears in person and prays that the issue
joined in in this cause may be enquired of by the court.

Alexander Chisholm. vs.
-William Johnson.
(Prom yesterday.)

David Betton
vs.
James Connor.
(From yester-day.)

270

UPPER CANADA COURT RECORDS.

Robert Macaulay &
Thomas Markland
vs.
Daniel McMullan.
(Prom yesterday.)

Robert Macaulay &
Thomas Markland
vs.
John Dec'y Gill.
(Prom yesterday.)

Hamilton and
Cartwright vs.
Gotlleb Christian,
Baron de
Reitsensteln.

Hamilton and
Cartwright vs.
Richard Campbell.

John Howard appears for the defendant and prays that
a venire may issue for a jury to try the issue joined.
On motion of the defendant it is ordered
that a venire do issue returnable on Saturday next, the
seventh instant.
Thomas Markland appears for the plaintiffs and filed
the declaration.
The defendant also appears in person and saith that he
is not indebted to the plaintiffs the sum demanded in the
declaration or any part thereof.
And the plaintiff in reply saith that the defendant is
indebted in manner as set forth in said declaration, which
he prays may be enquired of by the Court.
The defendant sayeth that he is not ready for trial/
for want of William McKay, Esq., a material witness who
is absent at Niagara, of which he is ready to make affidarit.
It is ordered that the defendant may be aUowed time
until Saturday, the seventh instant, to file his affidavit.
Thomas Markland appears for the plaintiffs and filed
declaration. The defendant was duly called and made default.
On motion of plaintiffs it is ordered that the default be
recorded. The Sheriff returns and fUed a caveat entered by
Joseph Allen, against the sale of lots Nos. One, Seven
teen, and Twenty-seven, of the lands, taken and seised as
belonging to the defendant.
It is ordered that the said Joseph AUen shall appear
in this Court on the first return day of next March term
to prove his title to the said lands, and that the Sheriff do
not proceed to make sale thereof until the further deter
mination of this Court.
The Sheriff returned that he has seised and taken in
execution as belonging to Richard Campbell, one dwelling-
house, 24 feet long, 18 feet wide, and one stable fif
teen feet square, both situate, lying, and being in King
ston, and one lot of land in Marysburg, known by the
name of lot No. Nine, fronting the lake, containing one
hundred acres, and that all the said premises are duly ad
vertised according to law to be sold and adjudged to the
highest bidder on Thursday, the 26th day of Januarj' next,
at ten o'clock in the forenoon of said day at the house of
James Robins ; the said Richard Campbell having no other
goods or chattels whereof he could le-yy any part of the
debt or costs, as was commanded him.
Adjourned until Saturday next, the seventh inst., at
ten o'clock in the forenoon.

UPPER CANADA COURT RECORDS.

271

SATURDAY, THE 7th JANUARY, 1792.
The Court met pursuant to adjournment.
Present: The same Judges.
The Sheriff returned the venire.
The jurors impanneled and sworn were: —

1. Michel Grass.
2. James Robins.
3. John Duncan.
4. Christopher Georgen
5. Malen Knight.
6. George Gallaway.

7. Eman'l Elderbeck.
8. David Brass.
9. Andrew Derrick.
10. James Russell.
11. Hickbut Hawley.
12. Amos Ainsley.

The declaration of the plaintiff and the plea of the de
fendant were read.
Evidence for the plaintiff sworn: Robert Macaulay,
Thomas Markland, Donald McDonell.
Evidence for the defendant: Edward Godd.
The Crier of the Court was sworn to attend the jury.
The jury having fully heard the parties likewise their
respective evidence, withdrew to consider of their verdict,
and having returned into court and being now called over,
say by Christopher Georgen, their foreman, that they find
a verdict for the defendant.
The Court will take time to consider.
The defendant appears in person and filed affidavit that
he could not proceed to trial of this cause without the
evidence of Wm. McKay, and prays that this cause may be
ordered for trial on the return day of next term.
On motion of the defendant, it is ordered that this
cause be set down for trial on the first return day of March
term next.
Adjourned to Monday, the ninth inst.

David Betton
vs.
James Connor.

Robert Macaulay &
Thomas Markland
vs.
Daniel McMullan.

MONDAY, THE 9th DAY OF JANUARY, 1792.
The Court met pursuant to adjournment.
Present: The same Judges.
The Sheriff returned that he has summoned the
defendant. <"
The plaintiff was called. James Clark, Jun., appears
and filed declaration in this cause, the said James Clark
also produces a power of attorney duly executed from
Peter Arnoldie to John Ferguson, also a general power of
attorney from the said John Ferguson authorising him

Peter Arnoldie
vs.
Richard Ferguson.

272

UPPER CANADA COURT RECORDS.

generaUy to act as his attorney in all matters whatsoever,
but as there appears no particular power of substitution
respecting Mr. Arnoldie's business, the Court do not think
him the said Jas. Clark duly authorised by virtue of the
said power of attorney from John Ferguson to appear as
his-substitute in this cause. It is therefore considered that
no further proceedings can be had in this cause.

Solomon Orser &
Mary Orser
vs.
Oliver Arnold.

The Sheriff has returned that he summoned the
defendant. Solomon Orser appears for the plaintiffs and filed de
claration. The defendant appears in person and prays that time
may be allowed him to enter his plea.
On motion of the defendant it is ordered that time
may be allowed until Thursday next, the twelfth inst.

Alexander Clark
vs.
Owen iMoGraw.

The Sheriff returned that he has summoned the
defendant. The plaintiff appears in person and filed declaration.
John Armstrong appears for the defendant and filed
warrant of attorney from the defendant to confess judg
ment for the sum demanded in the declaration of the
plaintiff. The plaintiff also filed the defendant's promissory
note for the sum of seventeen pounds, sixteen shillings and
ninepence, likewise his account amounting to the sum of
eighteen shiUings and sixpence, and his account of interest.
In all amounting to the sum of twenty pounds, thirteen
shillings and ninepence.
It is therefore considered by the Court that the plaintiff
shall recover of the defendant the said sum of twenty
pounds, thirteen shillings and ninepence, with costs of
suit.

John CJarscallen
vs.
John Ferguson.

The Sheriff has returned that he summoned the
defendant. The plaintiff appears in person and filed his declar
ation. The defendant was called and made default.
On motion of the plaintiff it is ordered that the default
shall be recorded.

David Betton
vs.
James Connor.

The plaintiff appears in person and prays that a new
trial may be had in this cause because that the verdict of
the jury was contrary to the evidence given them.
The defendant appears by his attorney, John Howard.
It is considered on motion of the plaintiff that the
defendant may appear in this court on the first return day

UPPER CANADA COURT RECORDS.

273

of next term to show cause why a new trial should not be
had as prayed.

James Clark, Jun., appears for the plaintiff, and prays
judgment on motion for a new trial in this cause.
It is ordered that the defendant may appear in this
court on the first return day of next term, and show cause
why a new trial shall not be allowed.

John Ferguson
vs.
John Carscaiien.

TUESDAY, THE 10th DAY OF JANUARY, 1792.
The Court met.
Present: Richard Cartwright and Hector McLean,
Esquires.

The defendant now appears in person and prays that
the default of Tuesday last may be taken off.
It is ordered on motion of the defendant that default
be taken off on paying costs.
And the said defendant saith that he is not guilty in
manner and form as set forth in the declaration of the
plaintiff, and prays that this may be inquired of by the
country. And the said plaintiff doth so likewise, and prays that
a venire may issue.
It is ordered that a venire may issue as prayed, return
able on Friday next the thirteenth instant.

Terrence Hunt
vs.
Titus Simons.

The defendant was again duly called this day and made
default. Thomas Markland appears for the plaintiffs and prays
that the Court may proceed to try this cause, and receive
proof of their demand as stated in the said declaration.
And the said plaintiffs produce the defendant's promissory
note for the sum of fifty-two pounds, fifteen shillings cur
rency and an account of interest thereon amounting to
one pound, nine shiUings, in all amounting to the sum of
fifty-four pounds, four shillings, and saith that the same
is due for the goods and merchandises as stated in the de
claration. John Culbertson, being a witness to the said promis
sory note, was sworn to declare the authenticity of the
same. It is considered that the plaintiff shall recover of the
defendant the sum of fifty-four pounds, four shillings, for
their said debt, together with costs of suit.

Robert Macaulay &
Thomas Markland
vs.
John Dec'y Gill.

274

UPPER CANADA COURT RECORDS.

ChristopherGeorgen vs.
-William Jones.

The defendant was again duly called this day and made
default. The plaintiff appears in person and prays that the
Court may proceed to receive proofs of hjs demand against
the defendant, likewise produces and filed several accounts
against the defendant for the sum demanded in his de
claration, which accounts the said plaintiff and Thomas
Markland have attested.
The Court having duly examined the said accounts
filed, likewise the original writ of summons and the default
made by the defendant, it is considered that the plaintiff
do recover of the defendant the sum of fourteen pounds,
eleven shillings and one penny halfpenny currency for his
debt, together with costs of suit.
Adjourned until Thursday next.

THURSDAY, THE f2th JANUARY, 1792.
The Court met.
Present: The same Judges.
No business.
FRIDAY, THE 13th DAY OF JANUARY, 1792.
The Court met.
Present: The same Judges;

Terrence Hunt
VB.
Titus Simons.

The Sheriff returned the venire.
The parties appear personally.
The jury called and sworn to try the issue joined were :

1. John Everett.
2. Michel Grass.
3. John Duncan.
4. James Robins.
5. Christopher Georgen
6. Joseph Pritchard.

7. George Younge.
8. James Richardson.
9. Barnabas Day.
10. Samuel Ainsley.
11. Amos Ainsley.
12. PhiUip Pember.

Evidence sworn for plaintiff: John Gurner, Charles
Ingram, Frederick Yeates.
Evidence for defendant: Ephraim Knap.
The jury having fully heard the parties, likewise their
respective evidence, withdrew to consider of their verdict,
and having returned into court, say by James Richard
son, their foreman, that they find a verdict for the plaintiff
with ten shillings damages, and that the plaintiff and de
fendant do each pay their own costs.
The Court informed the jury that the matter of costs
did not regularly eome under their consideration, that the
points on which they were to determine was whether the

UPPER CANADA COURT RECORDS.

275

issue was for the plaintiff or the defendant, and if for the
plaintiff to assess the damages that the case seemed to re
quire, that the costs must follow the rules fixed by law
in such cases.
Whereupon the jury again retired to consider of their
verdict, and having returned into Court say by James
Richardson, their foreman, that they find a verdict for the
plaintiff with five shillings and sixpence damages.
Adjourned until to-morrow.
SATURDAY, THE 14th JANUARY, 1792.

Terrence Hunt
vs.
Titus Simons.

The Court met.
Present: The same Judges.
The plaintiff appears in person and prays the Court to
give judgment on the verdict of the jury in this cause.
It is considered by the Court that the plaintiff shall re
cover of the said defendant the sum of five shillings and
sixpence awarded him for damages, together with costs of
suit. There having been an actual battery, not an assault
only, in which latter case no more costs than damages
could have been awarded.
The Sheriff has returned that he summoned the Joseph Forsyth
& Co.
defendant. -^. ^^--n,,,,,,
Michel Phillips.
The^plaintiff appears in person and filed his declar
ation. The defendant was duly caUed and made default.
On motion of the plaintiff it is ordered that default be
recorded. Adjourned untU Saturday, the 17th March next.

SATURDAY, THE 17th DAY OF MARCH, 1792.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., NeU McLean, and
Hector McLean, Esquires.
The Sheriff returned that he has duly summoned
the defendant.
Thomas Markland appears for the said plaintiffs and
filed declaration.
The defendant was caUed and made default.
On motion of Mr. Markland, it is ordered that the
default be recorded.

MARCH TERJI,
1792.

Robert MJacaulay &
Thomas Markland.
Oif Kingston,
merchants and
late co-partners,
plaintiffs. vs.
Simon J. Cole, of
Sophlasburgh. yeoman,defendant.

UPPER CANADA COURT RECORDS.

George Gallaway,
of Kingston,
yeoiT^an,
plaintiff, vs.
Amos Ainsley,
of said place,
carpenter, defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appear,^ in person and filed his declar
ation. The defendant also appears in person and saith that he
is not ready for trial, for that he having paid money on
account of his said obligation by the desire of the plaintiff
to the plainti&''s wife for which he took a receipt, and the
said receipt being lost or mislaid, he prays that time may
be allowed him to prove the same.
The plaintiff in reply saith that the money paid by the
defendant is endorsed on the said note, and that the de
fendant is indebted in manner as set forth in the declar
ation. It is ordered that this cause be set down for trial on
Monday next, the nineteenth inst.

David Betton,
plaintiff.James Connor.
defendant. (Prom last terra.)

The plaintiff appears in person.
John Howard appears pursuant to Rule of Court last
term, and prays that he may be dismissed as attorney for
the defendant, the defendant being personally present.
James Connor appears in person and prays that time
may be allowed until Monday next to file reasons against
a new trial bemg had in this cause.
On motion of thc defendant it is ordered that time be
allowed as prayed.

Robert Macaulay &
Thomas Markland,
plaintiffs, vs.
Daniel McMullan,
defendant. (From last term.)

Thomas Markland appears for the plaintiffs.
The defendant being called does not appear.
It is ordered that this cause be set down for trial on the
first day of next term.

Peter Schultz
vs.
William Carsons.

The plaintiff appears in person and produced and filed
an authenticated copy of a judgment of the Court of Ap
peals whereby the judgment in this cause given by this
Court has been reversed, and prays by a petition filed that
a Rule of this Honourable Court may be made for the said
William Carsons to appear before them on Saturday, the
twenty-fourth instant, to shew cause, if any he hath, why
this cause should not stand revived and be forthwith pro
ceeded upon.
It is ordered accordingly that the said William Carsons
do appear in this court on Saturday, the twenty-fourth
inst., as prayed.

MONDAY, THE 19th DAY OF MARCH, 1792.
The Court met.
Present : The same Judges.

UPPER CANADA COURT RECORDS.

277

The defendant appear^ in person and filed his reply
to the prayer of the plaintiff for a new trial.
The plaintiff also appears in person and persists that
the verdict of the jury was contrary to evidence, therefore
prays a new trial may be had.
The Court will take time to deliberate and give judg
ment on motion for a new trial.
The plaintiff appears in person.
The defendant was called and does not appear.
The plaintiff produced and filed the defendant's pro
missory note bearing date, etc., as set forth "in his de
claration, by which it appears that there still remains due
on the said note the sum of twenty pounds, fourteen
shillings and eightpence currency of this Province, and the
further sum of seventeen shillings and elevenpence for in
terest due thereon. The said note being witnessed by
Peter Clark, he was sworn to the authenticity thereof.
It is therefore considered by the Court that the plain
tiff shall recover of the defendant the sum of twenty-one
pounds, twelve shiUings and sevenpence for principal and
interest, with costs of suit.
In action of damages for slander, from last term.
The defendant appears in person and prays the Court
to give judgment on the verdict of the jury in this cause.
The plaintiff was duly called and does not appear.
It appears to the Court that the plaintiff has from time
to tiine put off the proceeding to judgment on motion made
in March term 1791, and the defendant represents to the
Court that the plaintiff does not appear to proceed accord
ing to the motion made by him the last term. The de
fendant therefore prays to be dismissed.
It is considered that the Rule of Court for the
defendant to appear and show cause why a new trial should
not be had be discharged, and that the defendant be dis
missed from this suit with costs, taxed at four pounds.
Adjourned until Friday, the 23rd inst.

David Betton
vs.
James Connor.
(From Satui-^ay
last.)

George Gallaway
vs.
Amos Ainsley.
(Prom Saturday
last.)

John Ferguson
vs.
John Carscaiien.

FRIDAY, 23rd MARCH, 1792.
The Court met pursuant to adjournment.
Present: The three Judges.
The Sheriff returned that he has summoned the de
fendant by leaving a true copy of the original writ of
summons and declaration at the defendant's last place of
residence in the hands of a gro^wn person.
The plaintiff appears in person and filed declaration.
The defendant being duly called made default.

Richard Cartwright, Jun.,
of Kingston,
raert;hant,
plaintiff, vs.
Moses Simmons,
of Ernest Town.
yeoman,
defendant.

278 UPPER CANADA COURT RECORDS.
It is ordered on motion of the plaintiff that the default
be recorded.
David Betton The plaintiff appears in person and prays the Court to
James ' Connor. give judgment OU motion for a hew trial in this cause.
The Judges differing in opinion of and concerning
judgment on motion for a new trial in this cause gave
their reasons, one by one, as follows, viz. : The Honourable
Hector McLean, Esq., saith that the defendant has not
shewn sufficient cause why a new trial ought not to be
granted. That the verdict is contrary to evidence, and that
there was not only an actual battery clearly proved, but
likewise marks of violence in consequence thereof, in
which case considerable damages are frequently given,
though in the present instance moderate damages could
have only been expected; there appears to be no positive
rule or precedent of law to govern the Court or bind them
relative to granting new trials, but seem to be left entirely
at their discretion. Not granting a new trial in this case
would be making a dangerous precedent and establishing
the verdict of a jury, tending to impress an opinion on
the minds of the people, that, however great the injury
offered to one's person, it should entitle him to no dam
ages without he sustains pecuniary loss, an opinion tending
to endanger the peace and tranquility of His Majesty's sub
jects, by encouraging rather than suppressing disorderly
beha-viour, and consequently highly repugnant to the
original intention of juries and the liberty of the English
Constitution, wherefore he saith that he is clearly of
opinion that a new trial ought to be granted.
The Honourable Neil McLean, Esq., saith that after
duly considering the defendant's plea against a new trial,
and the plaintiff's reason for demanding it, he is much in
clined for a new trial, for that the plaintiff founds his
demand on not having justice done him that the verdict
of the jury was contrary to evidence, which evidence fully
proved the assault and battery charged against the de
fendant. In such cases nothing but the matter being of so
trifling a nature as not to merit a reconsideration can
justify a non-compliance with the plaintiff's prayer. That
this ought not to be classed with insignificant eases, I
am fully of opinion, as the meanest subject in this Prov
ince, without any provocation, to be stopped in the
street, insulted and struck, is entitled far greater damages
than is mentioned in any of the cases that has yet come to
my knowledge, when a new trial was refused, and as the
law allows the rank and station of the injured party to
be taken into consideration (Blackstone's Reports, page
1327, Leath and Pope) the damages in this ease ought not

UPPER CANADA COURT RECORDS. 279
to be of a trifling nature. An observation of Judge Black-
stone in the Commentaries, Vol. 3, page 391, merits our
notice on this occasion : — " Next to doing, the great ob
ject in the administration of publick justice should be to
give public satisfaction. If the verdict be liable to many
objections and doubts in the opinion of his eoujisel, or even
in the opinion of by-standers, no party would go away
satisfied unless he had a prospect of reviewing it, such
doubts would with him be decisive: he would arraign the
determination as manifestly unjust : and abhor a tribunal
which he imagined had done him an injury without a
possibility of redress." I have no doubt but in this case
the above would exactly accord with the sentiments of
the plaintiff, and many of the by-standers, were a new
trial denied, and I see nothing against the legality and
justice of granting it. I am for a new trial.
The Honourable Richard Cartwright, Jun., Esq., saith
as follows : — That new trials are Uttle kno-^vn in this
country, where till within a few years all civil actions
have been determined by the judges only, and where this
mode of trial is still within the option of the parties. They
are, hoT^ever, a necessary consequence of the introduction
of trial by jury, where with the most upright intentions
the jurors may sometimes be mistaken. If an erroneous
judgment be given in a point of law, or a court judges of
fact, upon depositions in writing, their decision may be
revised in a Court of Appeals. But a general verdict can
only be set right by a new trial, which is no more than
having the cause more deliberately considered by another
jury, where there is a reasonable doubt or perhaps a
certainty that justice had not been done, and the object
in dispute is of such a nature and magnitude as to war
rant it. For it is not on every occasion that the Court
will be justifiable in interfering- to eontroul the powers
which the Constitution hath very wisely lodged in the
jury. In applying these observations to the case before
us, it seems to be a point settled that in the actions of
the present class, founded on torts or personal wrongs, a
new trial shall not be granted on account of the damages
being trifling or excessive, as in such cases they depend
on circumstances which are properly and solely under the
cognizance 'of the jury, and fit to be submitted to their
decision and estimate. BuUer's Law of Nisi Prius,
page 327, Burrows Reports, page 609, Wittford vs.
Berkley; and there is a decision of Westminster Hall
directly in point -with the present case, where it was de
termined by the Court of King's Bench that a new trial
is not necessarily granted in such cases, even where the

280

UPPER CANADA COURT RECORDS.

verdict is contrary to evidence, as it may notvtithstanding
be agreeable to the real equity of the case. See the case
of Burton vs. Thompson, Burrows Reports, page 664; a
further reason there given by Lord Mansfield is that
" the cause of action is in the nature of a crime ; the im
plied damages are in some measure by way of punishment;
and in criminal cases where the defendant is acquitted a
new trial cannot be granted." This of itself is sufficiently
decisive, but the other reasonings in that case may also
with propriety be applied to this. Though I certainly ex
pected and even directed a verdict for the plaintiff, I
did not think that the circumstances which appeared at the
trial would have warranted any considerable damages, and
therefore though the jury,, which was a very intelligent
and respectable one, have certainly gone too far, and have
contrary to evidence found for the defendant; yet as this
verdict cannot be set aside without payment of costs, the
granting a new trial would only be giving the plaintiff
opportunity of harassing the defendant without any
material benefit to himself, and it would be unbecoming
a court of justice to assist the passions of mankind. I am
therefore clearly of opinion that the rule ought to be dis
charged. Two of the judges having agreed in opinion that a
new trial should be granted in this cause, it is ordered that
a new trial be aUowed on payment of costs.
Adjourned until Saturday next, the twenty-fourth day
of March inst.
SATURDAY, THE 24th DAY OF MARCH, 1792.

John Carscaiien,
of Fredericksburg,
yeoman, plaintiff, vs.
John Ferguson,
of Kingston,
gentleman,
defendant.

The Court met.
Present: The three Judges.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declar
ation. The defendant was duly called and made default.
On motion of the plaintiff it is ordered that the default
be recorded.

Robert .Macaulay &
Thomas Markland
vs
Simon J. Cole.

Thomas Markland appears for the plaintiff.
The defendant being again called this day made
default. The plaintiff produces and filed a promissory note
signed with the defendant's name bearing date the 8th
July, 1790, for the sum of thirty pounds, nineteen shU
lings and sixpence halfpenny currency.

UPPER CANADA COURT RECORDS.

281

On motion of the plaintiff it is ordered that this cause
may be set down for further hearing on Monday next.
^ WUliam Carsons appears pursuant to Rule of Court,
of the 17th March inst., and saith, that he hath, conform
able to the judgment of the Court of Appeals, delivered
to the plaintiff the whole of the property which was in his
possession belonging to him.
And the said plaintiff appears in person and acknowl
edges to have received from the defendant some part of
his property, but that there still remains in his posses -non
sundry articles as per account exhibited and filed, which he
is ready to prove. And, further, that the several articles
already received from the plaintiff are much damaged,
which he is also ready to prove, therefore prays -that he may
be allowed damages for the same.
The parties being mutually agreed that the Court may
proceed to examine their respective evidence, it is ordered
accordingly. The depositions of Edward Hicks, William Bermicar,
William Schookenae, and Michel Criderman were taken
and filed.
The plaintiff also produced and .filed account against
the defendant.
The defendant likewise filed an account against the
plaintiff. The Court having fully heard the parties, likewise
their respective evidence, will take time to deliberate and
give judgment on Wednesday next.
Adjourned until Monday next.

Peter Schultz
vs.
-William Carsons.

MONDAY, 26th MARCH, 1792.
The Court met.
Present: The Honourables Richard Cartwright, Jun.,
and NeU McLean, Esquires.
Thomas Markland appears for the plaintiffs and prays
that John Detler, of Kingston, may be sworn to declare
to his knowledge of the handwriting of the defendant.
The said John Detler was sworn and declares that he
knows this signature to the note filed and now exhibited to
be the handwriting of the defendant.
The Court do therefore consider that the plaintiffs shall
recover of the defendant the sum of thirty pounds, nine
teen shillings and sixpence halfpenny for the said note, and
the further sum of three pounds, three shillings and eleven
pence for interest due thereon, with costs of suit taxed
at 

Robert McAulay &
Thomas Markland
vs.
Simon J. Cole.

282

UPPER CANADA COURT RECORDS.

David Betton
Vs.
-James Connor.

The plaintiff appears in person and filed a copy of
notice delivered the defendant, and having satisfied the
Court that the whole of the costs hitherto accrued on this
suit are paid, prays that a venire may issue returnable on'^
Friday next.
On motion of the plaintiff it is ordered that a venire
may be issued returnable on Friday next.
Adjourned until Wednesday next.

Peter -Schultz
vs.
William Carsons.

WEDNESDAY, THE 28th DAY OF MARCH, 1792.
The Court met.
Present: The three Judges.
The plaintiff appears in person and prays the Court to
give judgment in this cause.
The defendant also appears in person.
The Court having fully heard the parties, likewise the
evidence produced, do order and adjudge that the plaintiff
shall recover of the defendant the sum of forty pounds,
currency of the Province, as a compensation for the de
ficiency of sundry articles not delivered to him by the de
fendant, together with costs of suit.
And as the Court of Appeal have ordered that the
judgment of this Court shall be reversed without costs to
either party, the Court cannot take notice of any charge
made by the plaintiff on that account.

Richard Cart
wright. Jun.,
plaintiff, va.
Moses Simmon.

FRIDAY, THE 30th DAY OF MARCH, 1792.
The Court met pursuant to adjournment.
Present: The three Judges.
The plaintiff appears in person and prays that the de
fendant may be again called.
The defendant was duly called and made default.
The plaintiff produced and filed his account against the
defendant, amounting to the sum of eighteen pounds,
three shillings and one penny currency, and prays that
Thomas Beasley may be sworn to give evidence.
Thomas Beasley, upon oath, declares that the sundry
articles charged the defendant in said account was de
livered by him to the defendant, and that no part of the
said account has been paid for.
The Court do consider that the plaintiff shall' recover
of the defendant the sum of eighteen pounds, three shU
lings and one penny for his debt, together with costs taxed
at 

UPPER CANADA COURT RECORDS.

283

The plaintiff appears in person and prays that the
Sheriff may return the venire.
The Sheriff returned the venire.
The defendant also appears in person.
The jurors called and sworn were : —

1. Samuel Merrell.
2. Justis MiUer.
3. Archibald Fairfield.
4. Thomas Burnett.
5. Michel Dedrick.
6. David Whitman.

7. Joho Eagar.
8. John Wartman.
9. Martin Snook.
10. WiUiam Yerks.
11. John Horning.
12. Arthur Durser.

The declaration and plea filed in this cause was openly
read to the jury.
Evidence for plaintiff called and sworn: Donald
McDonell, Robert Macaulay, Thomas Markland.
Evidence for defendant sworn: Edward Codd, James
Richardson, James Forsyth.
The jury having heard the parties, likewise their re
spective evidence, withdrew to consider of their verdict,
and having returned into Court, by their foreman, Thomas
Burnett, say that they find for the defendant.
Adjourned until to-morrow.

David Betton
vs.
James Connor.

SATURDAY, THE 31st MARCH, 1792.
The Court met.
Present : The three Judges.
The plaintiff appears in person and prays that the de
fendant may be again called.
The defendant appears in person and prays that the
default of Saturday last may be taken off, and further
prays that this cause may be submitted to arbitration as
he has many proofs to produce which will tend to invali
date the said note.
And the plaintiff prays the Court that they wUl pro
ceed to try this cause because that the defendant hath had
sufficient time to prepare for trial, and that a process was
served in this cause six months ago, and that the de
fendant hath not taken any steps towards settling with the
plaintiff. It is the opinion of the Court that the defendant hath
not shewn any sufficient cause why they should not pro
ceed to the hearing of this cause, and that the matter in
dispute is a common note of hand in the possession of a
third person endorsed for valuable consideration, that no

John Carscallan
vs.
John Ferguson.

284

UPPER CANADA COURT RECORDS.

matters of account between the drawer and the original
holder could be admitted to impeach validity of the note
or be of account against it, it being admitted by the de
fendant that the said note is his own hand writing. That
it is notorious that the defendant was on the spot on the
day of the return of the ¦writ, and his now coming into
court to pray time, for the production of papers and wit
nesses, appears evidently calculated for the purposes of
delay. The Court therefore having fully heard the parties and
duly examined the said note it is considered that the
plaintiff shall recover of defendant the sum of fifty-two
pounds, fourteen shillings and eightpence for his said note,
and the further sum of six pounds, twelve shiUings and
ninepence for interest due thereon, together ¦with costs of
court.

John Mosure
vs.
James Gale.

The Sheriff returns that he has levied the sum of
twenty pounds, nineteen shillings and threepence for debt
and costs of suit, together with his own fees, as it was
commanded him.

James Clark
vs.
John Dec'y Gill.

The Sheriff returns that he has levied the debt and costs
with his own fees as it was commanded him.

David Betton
vs.
James Connor.

The defendant appears in person and prays that he may
be dismissed from this action -with costs.
The plaintiff also appears in person and saith that he
hath no objection to ju(igment being entered on the verdict
of the jury.
It is considered by the Court that the defendant be
dismissed with costs taxed at 

MONDAY, 17th SEPTEMBER, 1792.
The Court met pursuant to adjournment.
Present: The Honourables NeU McLean and Hector
McLean, Esquires.

Robert Macaulay &
Thomas Markland,
of Kingston,
merchants, and
late oo-partners,
plaintiffs, vs.
Alexander
'McKenzie, late of
Pittsburgh, defendant.

The Sheriff returned that he has duly summoned the
defendant by fixing a true copy of the declaration and
summons at the defendant's last place of residence.
Thomas Markland appears for the plaintiffs.
The defendant being duly called made default.
On motion of Mr. Markland it is ordered that the de
fault be recorded.
Adjourned till Monday the twenty-fourth inst., at ten
o'clock.

UPPER CANADA COURT RECORDS.

385

MONDAY, THE 24th SEPTEMBER, 1792.
The Court met pursuant to adjournment.
Present: Neil McLean and Hector McLean, Esquires.
The defendant being again duly called this day made
default. The plaintiffs appear by Thomas Markland and pro
duced and filed their account against the defendant,
amounting to the sum of twentry-three pounds and ten-
pence three farthings currency, and having duly attested
the same prays the Court to give judgment.
The Court having duly examined the several exhibits
filed in this cause, and likewise considered the default of
the defendant, it is ordered and adjudged that the said
plaintiffs shall recover of the said defendant the aforesaid
sum of twenty-three pounds and tenpence three farthings,
with costs taxed at four pounds, ten shillings and four-
pence. Adjourned tUl Saturday next.

Macaulay and
Markland vs.
Alexander
iMcKenzIe. (Prom Monday
last.)

next.

SATURDAY, 29th SEPTEMBER, 1792.
The Court met pursuant to adjournment.
Present: Neil McLean and Hector McLean, Esquires.
No business before the Court
Adjourned until Tuesday, the first day of January

DISTEICT OF MECKLENBURG, KINGSTON, 1793.
C.P., 2nd JANUARY, 1793.*
The Sheriff returned that he has duly sum
moned the defendant.
The plaintiff appears in person and filed his declar
ation. The defendant also appears in person and prays time
until to-morrow to file his plea.
It is ordered that the defendant be aUowed time to file
his plea as prayed.
*The record for the 1st of January and part of that for
the 2nd of January, 1793, is missing, evidently torn out of
the book.

Ebenezar -Washburn, of the
County of Lennox.
in the Midland
District, yeoman,
plaintiff, vs.
Alexander Clark,
of the .same place
in the aforesaid
district, yeoman,
ilefendant.

286

UPPER CANADA COURT RECORDS.

Ebenezar
-Washburn, of the
County of X,ennox,
lu the Midland
District, yeoraan,
plaintiff. vs.
Oliver Church.
Alexander Clark.
and Joihn
Carscaiien,
of the same place,
In the aforesaid
District. defendants.

Richard Cartwright, Jun.,
of Kingston,
merchant,
plaintiff, vs.
Duncan Bell.
of Fredericksburg,
yeoman.defendant.

The Sheriff returned that he has duly summoned the
said defendants.
The plaintiff appears in person and Sled declaration.
Alexander Clark and John Carscaiien also appear and
saith that they are in nothing guilty of the matter laid to
their charge in the said declaration.
Oliver Church being duly called made default.
The plaintiff in reply saith that the defendants are
guilty in manner as set forth in his declaration and prays
that this may be inquired of by the country.
And the said Alexander and John doth so likewise.
It is ordered by the Court that the trial of this cause
may be had on Tuesday, the ninth day of April next.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appeared in person and filed declaration.
The defendant being duly called made default.
The plaintiff prays that the default be recorded.
Ordered accordingly.
Adjourned until to-morrow at twelve o'clock.

Ebenezar¦Washburn, vs.
Alexander Clark.
(Prom yesterday.)

Robert Macaulay,
of Kingston,
merchant.
plaintiff. vs.
Oliver Church.
of Fredericksburg,
Esquire,
defendant.

THURSDAY, 3rd JANUARY, 1793.
The Court met pursuant to adjournment.
Present: The three Judges.
The plaintiff appears in person.
The defendant also appears in person and prays that
further time may be allowed him to file his plea.
By consent of the parties, it is ordered that the de
fendant shall have time until the eighth day of January
instant. Adjourned tUl Tuesday next at ten o'clock in the fore
noon. TUESDAY, 8th JANUARY, 1793.
The Court met.
Present : The three Judges.
The Sheriff returned that he has duly summoned the
defendant. _ The plaintiff appears in person and filed his declar
ation. Alexander Clark appears for the defendant and filed
warrant of attorney, and prays time to file an affidavit of
the defendant's being unable to attend from sickness.
It is ordered that time be allowed as prayed.

UPPER CANADA COURT RECORDS.

287'

The Sheriff returned that he has duly summoned the
defendant. The said defendant failed to appear.
Thomas Markland appears for the plaintiffs and filed
declaration. Alexander Clark appears for the defendant and prays
time until to-morrow to file affidavit of the defendant being
unable to attend from sickness.
It is ordered that time be aUowed as prayed.

Robert McAulay &
Thomas Markland.
plaintiffs, vs.
Oliver Church.
of Fredericksburg,.
defendant.

The Sheriff returned that he has summoned the de
fendant. Thomas Markland appears for the plaintiffs and filed
declaration. The defendant also appears in person and' acknowl
edges himself indebted to the plaintiffs the sum of fifty-
three pounds, fifteen shillings and sevenpence halfpenny.
It is therefore considered that the plaintiffs shall re
cover of the said defendant the sum of fifty-three pounds,
fifteen shillings and sevenpence halfpenny currency of this
Province, with costs.

Macaulay and
Markland vs.
Guysbard Sharp.

The Sheriff returned that he has duly summoned the
defendant to appear.
John Gumming appears for the plaintiffs and filed de
claration. Alexander Clark appears for the said defendant and
prays time until to-morrow to file affidavit that the de
fendant is unable to attend from sickness.
It is ordered that time be allowed as prayed.
The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed his declar
ation. The defendant also appears in person and saith that he is
in nothing guilty of the premises laid to his charge in
the said declaration, of this he puts himself on the country.
And the said plaintiff doth so likewise.
It is ordered that this cause may be tried on Tuesday,
the ninth day of AprU next.
The Sheriff returned that he has duly summoned the
said defendant.
The plaintiff appears in person and filed his declar
ation. Alexander Simpson appears for the defendant and saith
that the defendant hath not been in this Province since
the writ of summons has been issued against him, and prays

John Oimming
and Peter Smith,
of Kingston,
in the District,
vs.
Oliver Church,
of Fredericksburg..
Esquire,
defendant.

Samuel Rose,
of Marysburg,
yeoman. plaintiff. vs.
John ¦Vogely,
of said place,
yeoman, defendant.

George Gallaway.,
of Kingston,
yeoman, plaintiff, vs.
Amos Ainsley.
of said place,
carpenter, defendant.

288

UPPER CANADA COURT RECORDS.

Ebenezar Washburn.
vs.
Alex'r Clark.
Ebenezar ¦Washburn, vs.
Oliver Church.
Alex'r Clark, and
John Cascallen.

Richard
Cartwright vs.
Duncan Bell.
(Prom 2nd
January.)

that this cause may be ordered for next term, this circum
stance being within the knowledge of the Court, it is
ordered that this cause may be tried next March term, on
the first return day.
The defendant appears in person and filed his plea.
Alexander Clark appears for the said Oliver Church and
prays that the default may be taken off.
It is ordered that the default be taken off on paying
costs. The said Alexander saith that the said Oliver is not
guilty of the premises laid to his charge in the declaration
of the plaintiff, and of this he puts himself on the country.
The plaintiff appears in person and prays that the de
fendant may be again called to appear this day.
The defendant was again called and made default.
On motion of the plaintiff it is ordered that this cause
raay set down for trial on the first return day of March
term next.

Ebenezar "Washburn vs.
Alexander Clark.

Robert Macaulay
vs.
Oliver Church.

Macaulay and
Markland vs.
Oliver Church.

John Gumming
Peter Smith
vs.
Oliver Church.

WEDNESDAY, THE 9th JANUARY, 1793.
The Court met.
Present: The three Judges.
The plaintiff appears in person and in reply to the plea
of the defendant saith that the said defendant hath spoke
the words set forth in his declaration of his own wrong and
hath no cause as set forth in the said plea, and of this he
puts himself on the country.
It is ordered by the Court that this cause may be tried
on Tuesday, the ninth day of April next.
Alexander Clark appears for the defendant and filed
affidavit that the said defendant was not capable of ap
pearing to answer on account of sickness.
It is ordered that this cause may be tried on Tuesday,
the ninth day of April next.
Alexander Clark appears for the defendant and filed
affidavit that the defendant was not capable of appearing to
answer on account of sickness.
It is ordered that this cause may be set down for March
term next.
Alexander Clark appears for the defendant and filed
affidavit that the defendant could not appear for sickness.
Ordered for the first return day of next term.
Adjourned until Tuesday, the fifteenth instant, at ten
o'clock.

UPPER CANADA COURT RECORDS.

289

TUESDAY, THE 15th JANUARY, 1793.
The Court met.
Present: The Honourables Richard Cartwright, Jun.,
and Hector McLean, Esquires.
The Sheriff returned that he had duly summoned the
defendant. The plaintiff appears in person and filed his declar
ation. And the said Hazleton Spencer cometh and defendeth
the form and injury as to the words said to be spoken by
him respecting the said E. Washburn, viz., he having been
found guilty of perjury on some precedent occasion, he is
not guilty of having uttered them. And for this he puts
himself upon the country.
And the said plaintiff doth so likewise.
But with respect to the words, he meaning the said
Ebenezar was a man whose evidence and affidavit was
not entitled to any degree of faith, the said Hazleton doth
acknowledge that he did utter the same as he well might,
for that on the 20th August last the said Ebenezar said to
the said Hazleton after the election was over, I give you
joy of your getting the election and you have got it fairly,
and afterwards that he, the said Ebenezar, viz., on the 2nd
day of September last did make oath before Archibald
McDonell, Esquire, of Marysburg, one of His Majesty's
Justices of the Peace, that he, the said Hazleton, did ob
tain the said election through the partiality of the Return
ing Officer. And, further, the said Hazleton sayeth that
the said Ebenezar having been charged in open court with
having been guilty of perjury he thought himself justified
in saying his deposition was not entitled to credit till he
had removed the aspersion publickly east on his character.
And, further, that he was justified in speaking the above
words, for that on the 20th day of June, in the year of
Our Lord 1786, at Ernest-Town aforesaid, voluntarily
made oath before James Parrot, Esq., one of His Majesty's
Justices of the Peace for the District of Mecklenburg, now
caUed Midland District, that Hazleton Spencer with
others were taking away his property by force. Whereupon
the aforesaid James Parrot, Esq., issued a warrant against
the said Hazleton by which said warrant the said Hazle
ton was apprehended and kept in custody, upon examina
tion it appeared the said Ebenezar's deposition was false,
and in consequence the said Hazleton wag discharged.
And, further, the said Hazleton saith that he did not
speak the words aforementioned respecting Mr. Washburn
with a view to asperse the character of the said Ebenezar
20a

Ebenezar ¦Washburn. plaintiff. vs.
Hazleton Spencer,
defendant.

290

UPPER CANADA COURT KECOEDS.

but merely to vindicate himself from a charge of being
unduly elected as a representative for ........ proffered
to the House of Representatiyes for this Province by Mr. A.
Thomson, of Fredericksburg, supported by the affidarit of
the said Ebenezar, as he is ready to verify.
The plaintiff replies that the defendant is guUty in
manner and form as set forth in his declaration and with
out the causes by him assigned.

George (.^alli.>\va>".
of Kingston,
yeoman,
plaintiff, vs.
Amos .\inslie.
of the sai-d place.
carpenter,
defendant.

THE COURT OF COMMON PLEAS.
.MONDAY, THE 18th MARCH.
riesent: The Honourables Richard Cartwright, Jun.,
Esq., and Neil ^IcLean, Esq.
The Couit met pur.suant to adjournment from the last
term. The defendant appears and denies thc debt in manner
and form as set forth in the declaration.
The plaintiff' in reply saith that the defendant is guilty
in manner as set forth in his declaration, and of this puts
himself on his country.
This cause is ordered for trial on the ninth day of
April. The Court is adjourned till Monday next, 25th
March.

Macaulay and
Markland, merchants.Kingston. plaintiff. vs.
Oliver Church.
nf FreJerieksburg.
I'^sijuii'e.
defendant.

MONDAY. THE 25th MARCH.
The Court met.
Present: The same Judges.
The plaintiffs appear in person.
The defendant being called made default.

Robert McCawley,
merchant.
Kingston, vs.
Oliver Church,
Fredericksburg,Esq.
defendant.

The plaintiff appears in person.
The defendant being called made default.

John Gumming and
Peter Smith.
merchants.
Kingston, lilaintiffs, vs.
Oliver Church,
of Fredericksburg,
ICs,,.,
defendant.

John Gumming appeared in person.
The defendant being duly called made default.
The Court adjourned until Saturday, the 30th March.

UPPER CANADA COURT RECORDS.

291

SATURDAY, 30th MARCH.
The Court met.
The same Judges.
The Sheriff returned that he had caused to be made the f^'^^'^ Cartwright,
sum of ten pounds currency of the defendant's lands, ,. vs.
^ 1.11 111 • -I ¦ Moses Simmons.
having no more lands on which he could levy m his
district.

The Sheriff returned that he had cansed to be made ?°^«'' ^^<lCauiey &
Thomas Markland

the sum of twenty-two pounds currency of the defendant's
lands, having no more lands on which he could levy in
his district.

vs.
Alex'r McKenzie.

On motion of the plaintiff prays that the trial may be
put off on account of material witnesses that reside in other
districts that he cannot produce at the next Sessions in
April. The motion being opposed on the part of the de
fendant. The Court differing in opinion, the cause stands for
trial as ordered.

EbenezarWashburn, of the County of
Lennox, In the
Midlan.d District,
yeoman.plaintiff, vs.
Hazleton Spencer,
gentleman,of the aforesaid
County.defendant.

Alexander Clarke appears for John Carseallon and
Oliver Church and having filed his power of attorney prays
leave of the Court to withdraw their former plea of not
guilty and file their plea of justification.
The plaintiff on motion to the Court prays time till the
next term to put in his answer, which will be on the first
day of the June term.

Ebenezar Washburn, of the County of
Lennox, in the
Midland District,
yeoman.plaintiff, vs.
Oliver Church,
Alex'r (ilarke, and
John Carseallon.
of the aforesaid
County,
defendants.

On motion to the Court from the plaintiff begs leave
to ¦withdraw his action.

Ebenezar
Washburn. vs.
Hazleton Spencer.

COURT OF COMMON PLEAS.

APRIL 9th, 1793.
Present: The Honourables Richard Cartwright, Jun.,
Neil McLean, and Hector McLean, Esquires.
The plaintiff appeared in person and prays that the
Court will proceed to hear the trial of this cause.
The defendant being duly called made default from
the January term.

.Solomon Orser,
veoman.of the Township
of Kingston.
pla-intiff, vs.
George Harper.
of the aforesaid
Township,:\-eoman.
ilefendant. fProm .January
term.)

292

UPPER CANADA COURT RECORD'S.

Samuel Rose.
of Marysburg.

The plaintiff appeared in person and prays the Court

in the District
aforesaid.

to proceed to trial.

yeoman.

plaintiff. vs.

Mary Vogely appears for the defendant and files her

John Vogely,
of the same place.

power of attorney.

in Ihe District

aforesaid.

yeoman.

The jury called were sworn : —

defendant.

a J

1. Sampson Stuken. 7. WiUiam Foster.
2. Peter Bowers. 8. Samuel Reed.
3. Orry Rose. 9. Joseph Clapp.
4. Timothy Porter. 10. John Burns, Foreman.
5. Abraham Cronk. 11. John Frederick.
6. WiUiam Harrison 12. John Lett.
Evidences for the plaintiff sworn: WUliam Fairmau
and John Green.
A constable was sworn to attend the jury.
The jury returned into court and find for the plaintiff
one pound, ten shillings and threepence.
WEDNESDAY, 10th APRIL.
The Court met.
Present: The same Judges.
The special jury were called and sworn: —
1. Robert McCawley, Foreman. 7. Peter Smith.
2. James Russell. 8. Archibald Thomson.
3. James Robins. 9. Donell McDonell.
4. Emanuel EUerbeck. 10. Michael Grass.
5. David Brass. 11. Thomas Markland.
6. WiUiam Moon. 12. Paul Huff.
Evidences sworn for the plaintiff: Daniel Johnson and
Sheldon Hsiwlej.
Evidences sworn for the defendant: James Parrot,
Peter Vanalstine, Hazleton Spencer, John Howard,
Andrew Rickley, Guysbard Sharp, and Daniel Wright.
A constable was sworn to attend the jury.
The jury returned into court and find for the de
fendant.
UPPER CANADA COURT RECORDS.

293

IN THE COMMON PLEAS.

THURSDAY, 11th APRIL.

The Court met.
Present: The same Judges.

The jury were called and sworn: —
1. Tobias Wrarkman, Foreman.
2. Walter Ross. 8.' Samuel Reed.
3. John Spencer. 9. Wm. Cadman
4. John George. 10.
5. John Green. 11.
6. David Palmer. 12.
7. Edward Hicks.

Conrad Vandeuser.
Joseph Wright.
Isaac Parliament.

Evidence for plaintiff: Thomas Scheley and Thomas
Ilumfrys. Evidence for defendant: William McKindlay, Francis
Wj'cot, and James Robins. .
The jury being returned into Court say by their fore
man, Tobias Wrarkman, for the defendant.

Conrad -Vandeuser,
of Midland
District.plaintiff, vs.
Richard Ferguson,
of the aforesaid
District.

The defendant prays that he may be allowed judgment
of costs for his attendance ordered till next term.

COURT OF COMMON PLEAS, JUNE TERM, 1793.

MONDAY, THE 17th DAY OF JUNE.
The Court met pursuant to adjournment.
Present: The Honourables Neil McLean and Hector
McLean, Esquires.
-The Sheriff returned that he had duly summoned the
defendant. The plaintiff appears in person and ffled his declara
tion. The defendant also appears in person and says that he
is not indebted in manner or form as set forth in his de
claration. The plaintiff and defendant submit this cause to an
arbitration, entering mutually into bonds for the perform
ance of the award, which award to be .returned into court.
Thomas Richardson, arbitrator for the defendant.
Mathew Brown, arbitrator for plaintiff.

Joseph Allen,
of Marysburg,
in the aforesaid
District, plaintiff, vs.
Edward Hicks,
in the said
District,defendant.

294

UPPER CANADA COURT RECORDS.

Joseph Allen,
of Marysburg,
In the District
aforesaid,plaintiff, vs.
Augustus Spencer,
of the Little Lake,
yeoman, in the aforesaid
District,
defendant. Joseph Allen,
of Marysburg,
in the District ^
aforesaid,
plaintiff, vs.
James Gerolamy,
of Township and
District aforesaid.
yeoman.defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant being duly called made default.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant appears in person and acknowledges his
note-of-hand, but sets off an account against it and puts
himself on the country, and the plaintiff doth so likewise.
This cause ordered for trial on the tenth day of July.

Joseph Allen.
of Marysburg,
in the aforesaid
District, plaintiff, vs.
John German, Sen.,
of Sidney, in the
District aforesaid,
yeoman, defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant appears in person and confesses he was
indebted to the plaintiff for a note-of-hand, but says
he conceived the money had been paid, after givii:g his
ordef for the amount having never received any inform -
atioii from the plaintiff that it had not been accepted.
The cause to be called over to-morrow.

Thomas Markland.
merchant.
of Kingston,
plaintiff, vs.
Stephen Hare,
of Sophiasburgh.
yeoman, in the
District aforesaid,
defendant.Thomas Markland,
merchant,
of Kingston, in the
District aforesaid,
plaintiff. vs.
Duncan Bell, of
Fredericksburgh,and Norris Briscoe,
of Ernest Town, ¦
in the aforesaid
Districts, yeoman,
defendants. Robert McCawley -
& Thomas Mark-
land, co-partners
In trade, and
merchants,
of Kingston, In the
District aforesaid,
plaintiffs, vs.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant being duly called made default.
The Sheriff returned that he has duly summoned the
defendants. The plaintiff appears in person and filed his declara
tion. The defendants being duly called made default.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion.

UPPER CANADA COURT RECORDS.

295

The defendant appears in person and says he is not
indebted in manner and form as set forth in their de
claration and puts himself on the country. The plaintiffs
doth so likewise and says he is ready to verify this cause
to be tried on the tenth day of July.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defenclant appears in person and says he is not
indebted in manner and form as set forth in his
declaration and puts himself on the country.
The plaintiff is ready to verify the defendant is in
debted in manner and form as set forth and doth so like
wise put himself on the country.
This trial is ordered for the eleventh day of July.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant having stated by letter to the Court
that he is unavoidably obliged on account of a material
evidence being absent to pray that this cause may be put
off until the next term.
The Court consent to this cause being put off tiU the
16th Sept., being the first day of the term.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant likewise appears and says he is not
indebted in manner and form as set forth in the declara
tion, and puts himself on the country.
The plaintiff is ready to verify that he is indebted in
manner and form as set forth, and doth likewise so put
himself on the country.
This cause is ordered for trial on the eleventh day of
July next. '
The Sheriff returned that he has duly summoned the
defendant. The plaintiffs appear in person and filed their declara
tion. The defendant likewise appears and acknowledges him
self indebted to the plaintiffs the sum of ten pounds, fifteen
shiUings and one penny, with costs of suit.

Nicholas
Whitesele, of the Township
aforesaid and
District aforesaid,
yeoman, defendant.

John Green,
of Marysburgh,
in the District
afbresaid, yeoman, plaintiff, vs.
Joseph Allen.
of the same place,
in the District
aforesaid.

yeoman, defendant.

I'ierrePlomondeau,ot the aforesaid
District,labourer. plaintiff. vs.
Joel Stone, of
Leeds, In the
District aforesaid,
gentleman,
defendant.

AlexanderMcDonell. of
Marysburgh, yeoman. In the
aforesaid District,
plaintiff, vs.
Joseph Allen, of
Marysburgh,
of the aforesaid
District, yeoman, defendant.

John Gumming
and Peter Smith,
merchants and
co-partners in
trade in Kingston
ibistrlct aforesaid,
plaintiff, vs.
John German, Sen.,
of Sidney, in the
District af oi esaid.
yeoman,
defendant.

296

UPPER CANADA COURT RECORDS.

Ebenezar
Washburn, of the
County of Lennox,
in the District
aforesaid, plaintiff. vs.
Alex. Clark, John
Carseallon, and
Oliver Church.
of Fredericks
burgh, In aforesaid
District,defendant. (Prom last term.)
Solomon Orser,
of Kingston,
yeoman. In the ibistrlct
aforesaid. plaintiff, vs.
George HarpicT
of Kingston,
yeoman.In the District
aforesaid,defendant. (From last term.)

The plaintiff filed his replication in answer to the de
fendant's plea of justification.
This cause is ordered for trial on the twelfth day of
July ensuing.
The Court by rule order a special jury for this cause
from application of the parties.

On motion of the plaintiff prays that in consequence
of the default prays a writ of enquiry may be awarded.
The defendant appears in person and prays that the
default recorded may be taken off.
The Court consent, the defendant paying the costs in
curred by the default.
This cause is ordered for trial on the twelfth day of
•July next.
The Court adjourned until to-morrow at eleven o'clock.
TUESDAY, THE 18th JUNE, 1793.
The Court met pursuant to adjournment.
Present : The same Judges.

Alien vs. German.
(From yesterday.)

The plaintiff appears in person.
The defendant in justification says that he considered
his note already paid, and as his order had never been re
turned and is not indebted in manner and form set forth
therefore puts himself on his country.
The plaintiff is ready to verify that the defendant is
indebted as set forth in his declaration and puts himself
on his country likewise.
This cause is ordered for trial on the twelfth day of
July next.
The Court adjourned untU Thursday, the 20th June,
at eleven o'clock.

THURSDAY, 20th JUNE.
The Court met pursuant to adjournment.
Present: The same Judges.

Ebenezar
Washburn, of the
County of Lennox,
in the Midland
District.plaintiff, vs.
Alex'r Clark.
of the County
aforesaid and
District aforesaid,
defendant.

The defendant on motion to the Court prays for judg
ment. The Court having duly considered the pleadings from
both parties confirm the verdict of the jury and dismiss the
suit with costs for the defendant.

UPPER CANADA COURT RECORDS.

297

On motion the plaintiff begs leave to withdraw his
action.

Ebenezar
Washburn, of the
County of Lennox,
plaintiff, vs.
Alex'r Clarke,
Oliver Church, and
John Carseallon,
of the District
aforesaid.

John Darby appears for the defendant having filed
his power and prays the Court to grant judgment in this

cause. The Court having duly considered the pleadings from
both parties confirm the verdict of the jury and dismiss
the suit with costs for the defendant.
The Court adjourned until Monday, the 24th inst.
MONDAY, THE 24th JUNE, 1793.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appears in person.
The defendant being duly caUed made default.

The plaintiff appears in person.
The defendants being duly called made default.

The Sheriff returned that he has caused the defendant
to be duly summoned.
By motion of the plaintiff he begs leave to withdraw the
suit.

Jonathan AUen appears for the plaintiff, having filed
his power.
The defendant being duly caUed made default.
The hand-writing of Augustus Spencer being sworn
to in Court by the witness Jonathan AUen.
The Court therefore consider that the plaintiff shall
recover of the said defendant the aforesaid sum of three
3lA

Ale.x'r Morton, of
Kingston, in the
District aforesaid,
vs.
Joseph Robinson,
in the Eastern
District, now at
Kingston, In the
District aforesaid.

Thomas Markland,
of Kingston,
merchant in the
aforesaid District,
plaintiff, vs.
Stephen Hare, of
Marj'sburgh, in the
aforesaid District,
defendant.
Thomas Markland.
merchant, of
Kingston, in the
Midland District,
vs.
Duncan Bell, of
Fredericksburgh,
and Norris
Briscoe, of
Ernest-Town,veoman, of the
aforesaid District,
defendant. Joseph Allen, of
of Marysburgh,
in the aforesaid
District.yeoman. plaintiff. vs.
John Gurnard.
of the Township
aforesaid.
District aforesaid.
yeoman.defendant. Joseph Allen.
of Marysburgh,
of the aforesaid
District,
yeoman. plaintiff. vs.
Augustus Spencer.
of the Little L.ake.
yeoman. defendant.

298

UPPER CANADA COURT RECORDS.

Peter Smith.
merchant.of Kingston,
as Attorney for
Robt. Kerr.
formerly of
Fredericksburgh,
gentleman. In the
aforesaid District.
plaintiff, vs.
.John Segar, of the
County of Lennox,
yeoman. In the
aforesaid District.
defendant.

Peter Smith,
as Attorney for
Robt. Kerr.
plaintiff. vs.
John Segar, of the
County of Lennox,
yeoman,defendant. (From yionday
last.)

pounds, five shillings and one penny, with interest and
costs. The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and files his power.
The defendant being duly called made default.

SATURDAY, THE 29th OF JUNE, 1793.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appears in person.
The defendant likewise appears and prays that the
default may be taken off.
The Court consents to the default being taken off.
The defendant acknowledges he is indebted to the plam-
tiff the sum of eleven pounds, thirteen shiUings and four-
pence, with three pounds, seven shUlings and eightpence
for interest.
The Court therefore consider that the plaintiff shall
recover of the said defendant the aforesaid sum of eleven
pounds, thirteen shillings and fourpence, and three pounds,
seven shillings and eightpence for interest due on said note,
with costs of suit.

Conrad -Vandeuser,
of Adolphus Town,
plaintiff, vs.
Richard Ferguson,
Jun., as Curator
to the Estate of
Israel Ferguson,
gentleman.
Richard Ferguson,
Jun., of Sophias
burg, of the afore
said district,
gentlefnan,plaintiff, vs.
Conrad "Vandeuser,
of Adolphus Town,
in the aforesaid
district, merchant,
defendant.

The defendant having filed a bill of costs last term
prays judgment thereon.
The Court consider that the defendant shall recover
the sum of four pounds, ten shillings, for his attendance
at the different terms.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person and filed his declara
tion. The defendant likewise appears and says he is not in
debted in manner and form as stated in the plaintiff's de
claration, therefore puts himself on the country.
The plaintiff says he is indebted in manner and form as
stated and likewise puts himself on the country.
This cause is ordered for trial on the eleventh day of
July next.
The Court is adjourned until Monday, the 16th day of
September next.

UPPER CANADA COURT RECORDS.

299

COURT OF COMMON PLEAS.

FROM JUNE TERM, JULY 10th.

The jury were called and sworn:-

1.

Jethro Jackson.

7.

John McDougall.

2.

Nathaniel Jones.

8.

John Davy.

3.

John Fagler.

9.

Donald McDonell.

4.

Lawrence Loon.

10.

John Chibley.

5.

Peter MePherson.

11.

Weiden Walker.

6.

Andrew Boyce.

12.

Edward Powers.

Josepfi Allen, of
Marysburgh, In
the Midland
District, plaintiff,
vs.
James Gerolamy,
of Marysburgh, In
the district afore
said, defendant.

John Ben, constable, was sworn to attend the jury.
Evidence sworn for plaintiff : David Dulmage.
Evidences for the defendant: Edward Hicks, Jonathan
Allen, William Fairman, John Greer.
The jury withdrew, and having returned into court
by their foreman, Jethro Jackson, find a verdict for the
plaintiff for six pounds, eight shillings, and with costs of
suit.

The plaintiff appears and prays that the Court may
proceed to trial.
Barret Mariner and George -Hesse maketh oath that
the defendant from sickness is not able to appear, and
prays the trial may be put off till the 16th Sept., being
the first day of the next term.

Messrs. Macauley
and Markland,
merchants, of
Kingston, vs.
Nicholas Whitesele
yeoman, of
Kingston, in dis
trict aforesaid.

The plaintiff appears and prays that a writ of enquiry
may be awarded to the Sheriff to enquire if the account be
just.

COURT OF COMMON PLEAS.

Thomas Markland,
merchant, of
Kingston, in the
aforesaid district,
vs.
Duncan Bell &
Norris Briscoe, of
the district afore
said, defendants.

The Court met pursuant to adjournment.
The same Judges present.

The plaintiff appears in person.
The jury were called and sworn :—
1. Peter Dayly. 7.
2. Eobert Farington. 8.
3. Tobias Snyder. 9.
4. Henry Smith. 10.
5. Jacob Benson. 11.
6. Shedrach BaU. 12.

Louis Hicks.
John Smith.
Jonathan Ferguson.
Donald McCrimon.
Ernest Nevellin.
Robert Perry.

John Greer, of
Marysburgh,yeoman, plaintiff,
in the Midland
District, vs.
Joseph Allen, of
Marysburgh,yeoman, In tiie dis
trict aforesaid,
defendant.

300

UPPER CANADA COURT RECORDS.

Evidences sworn for the plaintiff: David Dulmage,
James Gerolamy, Jonathan Allen, John McBean, Edward
Hicks. Evidences sworn for the defendant: John Cumming,
David Dulmage, Andrew Hesse, John Hartman.
John Ben, constable, was sworn to attend the jury^
The jury withdrew, and having returned into court
by their foreman, Robert Perry, find a verdict for the
plaintiff of two pounds, sixteen shillings and fourpence,
with costs of suit.

IN THE COMMON PLEAS.
nth JULY (AFTERNOON).
The Court met in pursuance to adjournment.
Present: The same .Judges.

Alex'r McDonell,
of Marysburgh, in
the district afore
said, plaintiff,
vs.
Joseph Allen, of
Marysburgh, yeo
man, defendant.

The plaintiff appears in person.
The jury called and sworn: —

1. WUliam Perry, Foreman.
2. WiUiam Stanton.
3. William Bennekin.
4. George Ruttan.
5. John Segar, Sen.
6. Nathan Williams.
7. Nicholas Hubble.

8. Henry Davy.
9. Robert Middleton.
10. Andrew Johnson.
11. Henry Sniith.
12. David Dulmage.

Evidence for the plaintiff sworn: Thomas Armstrong.
Evidences sworn for defrndaut: Edward Hicks, Jonas
Smith, David Hicks.
John Ben was sworn to attend the jury.
The jury withdrew, and having returned into court by
their foreman, William Perry, find for the plaintiff the
sum of one pound, sixteen shillings and costs, and that
the plaintiff shall return the chains to the defendant and
that the defendant shall return to the plaintiff the quan
tity of iron delivered unto him.
The Court adjourned until to-morrow at eleven o'clock.

FRIDAY, THE 12th JULY.
The Court met pursuant to adjournment.
The same Judges.

UPPER CANADA COURT EECORDS.

301

The plaintiff appears in person.
The jury were called and sworn :-

1. Alexander McDonell.
2. David Ja.ckson.
3. James Hoyle.
4. Mathias Rore.
5. Peter Vanamuker.
6. David Lockwood,
Foreman.

7. John Davy.
8. John McDougall.
9. Shedrach BaU.
10. John Shibly.
11. Donald McCrimon.
12. Cornelius Brass.

Richard Ferguson,
of Sophlasburgh,
plaintiff, '
gentleman, vs.
Conrad -Vanduser,
of Adolphus -Town.
defendant. (From last term.)

John Ben was sworn to attend the jury.
Evidences for the plaintiff: John Peters, Henry
Young, Sen., Jacob Ferguson.

Evidence for defendant:

The jury withdrew, and having returned into court by
their foreman, David Lockwood, find a verdict for the
plaintiff for thirty-three pounds, six shillings and two
pence, with costs.

IN THE COMMON PLEAS.
The plaintiff appears in person.
The jury called and sworn:

1.

WiUiam Perry.

7.

Edward Powers.

2.

William Stanton.

8.

John Smith.

3.

Andrew Johnson.

9.

William Benniken,

4.

Andrew Boyce.

10.

Nicholas Hubble.

5.

Jacob Benson.

11.

Nathaniel James.

6.

Lawrence Loon.

12.

Robert Farr ington,

The constable John Ben was sworn to attend the jury.
The jury withdrew to consider on their verdict, and
liaving returned into court by their foreman, WiUiam
Stanton, find a verdict of fifteen pounds, seventeen shillings
and ninepence, with three shillings and sixpence for in
terest, amounting to sixteen pounds, one shilling and three
pence, for the plaintiff, and the plaintiff to pay the costs
and charges of the court.

Joseph Allen, of
the aforesaid
district, yeoman, plaintiff,
vs.
John German,
gentleman,of Sidney, in the
aforesaid district.
defendant.

,302

UPPER CANADA COURT RECORDS.

Solomon Orser,
of Kingston, in
the aforesaid dis
trict, plaintiff,
vs.
George Harpel, of
Kingston, yeoman,
in the aforesaid
district.defendant.

The plaintiff appears in person.
The jury were called and sworn :

1. Donald McDonell.
2. Jonathan Ferguson.
3. Tobias Snyder.
4. Henry Davy.
5. Nathan Williams.
6. Lewis Hicks.

7. Weiden Walker.
8. Ernest Nevillen.
9. George Ruttan.
10. Robert Perry.
11. Henry Smith.
12. David Dulmage.

Evidences sworn for the plaintiff: Michael Taylor,
David Babcock, William Taylor.
Evidences sworn for the defendant: Buton Guirot,
John Barne.
A constable was sworn to attend the jury, John
Ben. The jury withdrew, and having returned into court by
their foreman, Robert Perry, find a verdict for the plain
tiff of one hundred and fifty pounds, with costs of suit.

SEPTEMBER TERM. 16th.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
Neil McLean, and Hector McLean.

John MoKenny. 'of
Ernest Town, in
the aforesaid,
district,yeoman, plaintiff,
vs. ¦
Peter MePherson,
of township afore
said, in the district
aforesaid, yeoman,
defendant.

The Sheriff returned that he has duly summoned the
defendant. James Simson appears for the plaintiff under authority
o[ a letter.
The defendaiit likewise appears in person and says he
is not indebted in manner and form as stated in the plain
tiff's declaration and puts himself on the country.
James Simpson says he is indebted in manner and form
and doth so likewise.
This cause is ordered for trial on the eighth day of
October next.

Arthur McCormick,
of Fredericks
burgh, trader, in
the aforesaid
district, plaintiff,
vs.
Daniel MeMullen,
of Fredericks
burgh, in the
aforesaid district,
dealer In furs,
defendant.

The Sheriff returned that he has duly summoned the
defendant. It -appearing to the Court that Mr. McDoneU is in a
bad state of health this cause is put off until Monday, the
23rd September.
Mr. McDoneU being duly authorized by a power of at
torney to appear for the plaintiff, who is absent from
Canada, the power of attorney having been filed in court.

UPPER CANADA COURT RECORDS.

303

The plaintiff appears in person.
The defendant likewise appears and says he is not in
debted in manner in form as stated in the declaration and
puts himself on the country.
And the plaintiff doth so likewise.
This cause is ordered for trial on Tuesday, the eighth
day of October next.
The plaintiffs appear in person.
The defendant being called made default.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person.
The defendant doth so likewise and says he is not in
debted in manner and form as stated in 'said plaintiff's de
claration and puts himself on the country, and the plaintiff
doth so likewise.
This cause is ordered for trial on Tuesday, the eighth
day of October next.
The defendant, George Harpel, moves arrest of judg
ment in said cause and that the verdict may be quashed,
which motion is filed in the records. The plaintiff being
present in court a rule is granted to shew cause why judg
ment should not be arrested agreeable to the motion on
Monday, the twenty-third day of September inst.

Pierre Plomondeau,
of Kingston, in the
aforesaid district,
labourer, plaintiff,
vs.
Joel Stone, of
Leeds, in the afore
said district,
gentleman,
defendant. (From last term.)

McCawley & Mark-
land, merchants,
of the town of
Kingston, plaintiffs, vs.
Nicholas White
sele, in the Town
ship of Kingston,
yeoman, defendant.
(From the last
term.)
George Johnson,
of Kingston, In
the aforesaid dis
trict, plaintiff,
vs.
George Campbell,
of township afore
said, defendant.

Solomon Orser
vs.
George Harpel.
(Prom October
sitting.)

THURSDAY, THE 19th SEPTEMBER, 1793.
The Court met.
Present: The same Judges.

The defendant Conrad Vandeusen, moves for a new
trial, which motion is filed in the Records.
A Rule of Court is granted to show cause to the said
Richard Ferguson why a new trial may not be obtained
until to-morrow, the 20th inst., he having represented to
the Court that he would be ready at that time.
Edward Hicks appears for the plaintiff, _ having first
filed his power, moves for judgment in the said cause.
The verdict of the jury being only for one pound, six
teen shUlings and one penny, the Court take time until
to-morrow, the 20th inst., to consider of said verdict.

Richard Ferguson
vs.
Vanduser. (From sittings in
July.)

.Alex'r McDonell,
plaintiff, vs.
Joseph Allen,
defendant. (From July.)

304

UPPER CANADA COURT RECORDS.

John Green,
plaintiff, vs.
Joseph Allen,
defendant.

The plaintiff appears and moves for judgment in said

cause.

The Court having duly weighed the verdict of the said
jury consider that the plaintiff shall recover of the said
defendant the sum of two pounds, sixteen shiUings and
fourpence, with costs of suit.

Samuel Rose.
plaintiff, vs.
John -Vogely.
(From April, 1793.)

The plaintiff appears and prays judgment may be
granted in said cause.
The Court having duly weighed the verdict of said
jury consider that the said plaintiff shall recover of the
said defendant the sum of one pound, ten shillings, with
costs of suit taxed at seven pounds and sixpence.

Macauley & Mark-
land, plaintiff,
vs.
Nicholas White
sele, defendant.

The plaintiff appears.
The cause is ordered for trial on the eighth day of
October next ensuing.

FRIDAY, THE 20th DAY OF SEPTEMBER.
The Court met pursuant to adjournment.
The same Judges present.

McDonell,
plaintiff, vs,
J, Allen,
defendant.

Edward Hicks appears for the plaintiff and prays
j udgment. The Court having duly weighed the verdict of the jury
consider the plaintiff shall recover of the defendant the
sum of one pound, sixteen shillings and one penny, with
costs taxed at six pounds.

Richard Ferguson,
plaintiff, vs.
Conrad ¦Vanduser,
defendant. (From yesterday.)

The plaintiff appeared and filed his replication.
The defendant appears.
The plaintiff having consented to take judgment for
twenty-two pounds, three shillings and sevenpence, the
Court do consider that the plaintiff shall recover the said
sum with costs and charges, instead of thirty-three pounds,
six shillings and twopence awarded by the verdict of the
jury. The defendant acquiesces to the said arrangement.

Arthur McGorkmick,
plaintiff, vs.
Daniel McMullen,
defendant, (Prom Monday
last.)

MONDAY, 23rd SEPTEMBER.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appears in person.
The defendant likewise appears and says he is not in
debted in manner and form as stated in plaintiff's declara
tion, and puts himself on the country.
And the plaintiff doth do likewise.

UPPER CANADA COURT RECORDS.

305

This cause is ordered for trial on Tuesday, the eighth
day of October next ensuing.
The plaintiff shews cause as ordered for this day and
sets forth his reasons by a written paper delivered to the
Court, which is filed in the Records.
The defendant says in reply it was not lawful for the
jury to guess that the plaintiff was married to the said
Mary Orser and thereon found a verdict for such heavy
damages, but that the same marriage ought to have been
proved by the plaintiff in open court, which he having
neglected to do prays the said verdict may be set aside as
Ulegal. The Court will take time until Monday, the 30th inst.,
to consider the matters alledged by the said parties in this
cause. The Court adjourned until Monday, the 30th inst.

Solomon Orser
vs.
George Harpel.
(Prom Monday
last.)

MONDAY, THE 30th SEPTEMBER.

The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff and defendant appear from Monday last.
This is an action for criminal conversation with the
plaintifPs wife in which he hath obtained a verdict for one
hundred and fifty pounds damages. But it appears that
at the trial the plaintiff neglected to produce any evidence
of this marriage. Upon this ground the defendant hath
moved an arrest of judgment, and having duly weighed
what hath been urged by the parties we are now to give
our decision. There is no principle in law more clearly
established than that it is incumbent on a plaintiff to
substantiate by proof every allegation that is necessary to
support his action. In such cases as the present an actual
raarriage of the parties is the only foundation of a claim
to damages, a circumstance so material and which is the
very gist of the action, ought not to be assumed, it must be
fully established by proof produced at the trial, and the
plaintiff having omitted to bring evidence to this point, his
neglect is fatal to his cause. The verdict must be set aside
and judgment of non-suit entered.
This decision, in which the Court is unanimous, is
founded on the plainest principles of law, corroborated by
the case of Morris vs. Miller, reported in Barrow, page
ao5.

Orser vs.
Harpel.

306

UPPER CANADA COURT RECORDS.

TUESDAY, THE Sth OF OCTOBER.

Plomondeau
vs.
Stone. (Prom Sept. term.)
McKenny va.
MePherson. (From Sept. term.)

The Court met.
Present: The Honourables Richard Cartwright, Jun.,
Neil McLean and Hector McLean, Esquires.
The plaintiff appeared in person.
The defendant being called made default.
The plaintiff being called did not appear on account
of his wife being in a bad state of health.
The defendant appears and says no notice has been
given to put off the trial and prays this action may be dis
continued. The Court adjourned until four o'clock.
The Court met pursuant to adjournment.
Present : The same Judges.

Robert Macauley &
Thomas Markland
vs.
Nichola"s W^hite-
sele.

The plaintiff appears in person.
The defendant doth so likewise.
'The jury were called and sworn.

1. Frederick Baker.
2. John Edgar.
3. John Ham.
4. Paul Corner.
5. John Vandican.
6. Peter Asseltine.

7. Jacob Corner.
8. John Asselstine.
9. John Burby.
10. WiUiam Williams.
11. David WiUiams.
12. Bastion Hogle.

For want of evidence on part of the plaintiff the Court
dismiss the jury and that the said plaintiffs are non
suited. The Court adjourned until to-morrow at four o'clock.

Plomondeau vs.
Stone. (From Sept. term.)

.\rthur McCormick
vs.
Daniel McMullen.
(From Sept. term.)

9th OCTOBER.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appears in person.
Archibald Fairfield having filed a power for Joel Stone
praying on account of sickness that this cause may be put
off until the second Tuesday next January.
The Court grant a rule that this cause may be put off
on the defendant's paying the costs incurred for the plain
tiff's attendance aud witnesses.
The plaintiff appears in person.
The defendant appears. "^

UPPER CANADA COURT RECORDS.

307

1.
8. 3.

Emmerson Burly.
Freeman Burly.
James Jackson.

7,8,9,

4. 5.

George Burk.
John Horning.

10,11

6.

David Purdy.

12,

The jury were called and sworn : —
Francis Vandebogart.
Peter Asselstine.
Frederick Baker.
Elvia Yeomans.
Michael Daderick.
Daniel Johnson.
Evidence sworn for plaintiff : John Detler.
Evidence sworn for defendant.
Constable sworn to attend the jury.
The jury withdrew to consider of their verdict, and
having returned into court by their foreman, Emmerson
Burly, find a verdict for the plaintiff with damages of two
hundred and sixty pounds, fifteen shillings and ninepence
farthing, Halifax currency.

COURT OF COMMON PLEAS.— DECEMBER TERM.
THURSDAY, 17th DECEMBER, 1793.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
Neil McLean and Hector McLean, Esquires.
The Sheriff returned that he has duly'summoned the
defendant. The defendant appears in person and says he is not in
debted in manner and form as set forth in plaintiff's de
claration, and prays that this action may be enquired of the
country. The plaintiff likewise appears and says he is indebted
in manner and form as set forth and doth so like-wise.
This cause is ordered for trial at Adolphus Town on
Tuesday, the fourteenth of January next ensuing.
John Charles Stewart appears for the defendant,
having filed his power of attorney duly authorized from
defendant and files his plea in demurrer.
The plaintiff prays time until Friday, the 20th instant,
to reply. It is ordered by the Court that the plaintiff do make
his replication on Friday, the 20th instant.
The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears in person.
The defendant being duly caUed made default.

John Baptiste
Bauchette, Captain
In His Majesty's
Marine Dept.,
gentleman, of
Kingston, In the
aforesaid district,
plaintiff, vs.
Bemslee Peters, of
the aforesaid dis
trict and town
aforesaid, gentle
man, defendant.

ChristopherGeorgen, Kingston,
In the aforesaid
district, taylor,
plaintiff, vs.
David Ross,
¦attorney for
Peter McFarlane,
of Montreal,
defendant.

Philip Pember, of
of the Town of
Kingston, In the
aforesaid district,
carpenter,plaintiff, vs.
Edward Walker,
of Kingston, In the
aforesaid district,
defendant.

308

UPPER CANADA COURT RECORDS.

Joseph Pritchard,
of the Town of
Kingston, in the
aforesaid district,
taylor, plaintiff,
vs.
Stephen McLean,
now at Kingston,
In the aforesaid
district, defendant.

The Sheriff' returned that he has duly summoned the
defendant. The defendant appears and says he is not guilty in
manner and form as set forth in plaintiff's declaration and
prays it may be inquired of by the country.
The plaintiff appears and is ready to verify and doth
so likewise. This cause is ordered for trial on Tuesday, the four
teenth day of January next, at Adolphus Town.

Daniel Carre, of
Ernest To-wn, In
the aforesaid dis
trict, gentleman,
plaintiff, vs.
Nathan Williams
and Robert
Williams, of
Ernest Town, in
aforesaid district,
yeoman, defendants.

The Sheriff returns that he has duly summoned the
defendants. The plaintiff appears in person.
The defendants appear and pray leave jirom the Court
until Friday next, the 20th instant, to put in their plea
to the plaintiff's declaration.
The Court order that the defendants' plea be made on
Friday next, the 20th instant.

Marcus Snyder, of
Ernest Town, In
the aforesaid dis
trict, yeoman,
plaintiff, vs,
David Lent, of
township aforesaid
and district
aforesaid, yeoman,
defendant.

The Sheriff returned that he has duly summoned the
defendant. The defendant appears and says he did give the plain
tiff a promissory note that he did tender the eight doUars
as specified in said note, prior to the suit being com
menced, and likewise offered to pay the residue in produce
agreeable to the tenor and condition of said note, and that
he is still ready and willing to comply with the conditions
of the said note, but the plaintiff doth and still refuses to
accept the same.
The plaintiff says that the defendant hath never ten
dered payment of the said note conformable to the said
conditions, which he prays may be inquired of by the
country, and the defendant doth so likewise.
This cause is ordered for trial on Tuesday, the 16th
January next, at Adolphus Town.

Alexander Chisholm, of
Thurlow, of the
district aforesaid,
gentleman, plaintiff, vs.
John Dafoe, of
Fredericksburgh,In the aforesaid
district, yeoman,
defendant.

The Sheriff returned that he has duly summoned the
defendant. The defendant appears in person and says he is not
indebted in manner and form as set forth 'in plaintiff's
declaration, and prays this may be enquired of by the
country. And the plaintiff doth so likewise.
This cause is ordered for trial on Tuesday, the four
teenth day of January next, at Adolphus Town.

UPPER CANADA COURT RECORDS.

309

The Sheriff returns that he has duly summoned the
defendant.
The defendant appears in person and says he is not in
debted in manner and form as set forth in plaintiff's de
claration and prays this may be enquired of by the country.
Thj plaintiff appears and says he is indebted in
manner and form and doth so likewise.
This cause is ordered for trial on the second Tuesday
in April, at Kingston, in consequence of a material witness
being absent, it being by the consent of the parties.

William Cottier, of
Ernest Town, in
the aforesaid
district, yeoman,
plaintiff, vs.
Ichabod Hanly, of
township aforesaid,
and district afore
said, yeoman,
defendant.

The Sheriff returns that he has duly summoned the
defendant. The plaintiff appears in person.
The defendant being duly called made default.
The Court adjourned till Friday, 'the 20th inst., at
eleven o'clock.

William Ransler,
of the township ol
Kingston, In the
district aforesaid,
plaintiff, vs.
Joseph Ferris, of
the district and
township afore
said, defendant.

FRIDAY, THE 20th INST.
The Court met pursuant to adjournment.
Present: The same Judges.

The plaintiff appears and prays for judgment conform
ably to verdict given on ninth October.
The defendant being called does not appear.
The Court consider that the plaintiff shall recover of
the defendant the said verdict of jury amounting to two
hundred and sixty pounds, fifteen shillings and ninepence
farthing Halifax currency, with costs of suit.

Arthur McCormick
vs.
Daniel McMullen.
From after
sittings last term.

The plaintiffs being called do not appear.
The defendant appears and prays that the Court will
award his costs on judgment of non-suit entered in October
sittings. The Court consider the defendant shall recover of the
plaintiffs the sum of one pound, four shUlings for his
costs.

Robert McCawley
& Thomas Mark-
land, plaintiffs,
vs.
Nicholas -White
sele, defendant.
From after
sittings last term.

The plaintiff being called does not appear.
The defendant appears and prays the Court wUl a-ward
his costs on judgment of non-suit entered at October
sittings. The Court consider the defendant shall recover of the
plaintiff the sum of one pound, six shillings and sixpence
for his costs.

McKenny vs.
MePherson. Prom after
sittings in
October.

310

UPPER CANADA COURT RECORDS.

ChristopherGeorgen vs.
Ross, attorney.
(Prom Tuesday
last.)

The plaintiff appears and filed his replication to de
fendant's plea.
John Charles Stewart appears and asks time till Tues
day next, the 24th instant, to put in his answer.
The Court grant a rule for the defendant to answer
plaintiff's plea on Tuesday next.

Philip Pember
vs.
Edward Walker.
(From Tuesdajr
last.)

The plaintiff appears in person.
The defendant appears and prays the default may be
taken off.
The Court consent to the default being taken off pay
ing costs.
The defendant says he is not guilty in maimer and form
set forth in plaintiff's declaration and prays this may be
inquired of by the country, and the plaintiff doth so like
wise. The Court order this cause for trial at Adolphus Town
on Tuesday, the fourteenth day of January next.

Titus Simons,
Senior, of
Kingston, in the
aforesaid district,
plaintiff, vs.
Neil McLean, of
Kingston, in the
aforesaid district,
gentleman, defendant.

The Sheriff returned that he has duly summoned the
defendant. The plaintiff appears.
The defendant prays till Tuesday next to make answer
to plaintiff's declaration.
The Court makes a rule granting until Tuesday next,
the 24th inst., to put in his plea.
The Court make a rule that in future no costs will be
taxed by the Court till it appears previous notice has been
given by the party applying for such taxes to the opposite
party in writing that he will apply on a particular day for
his costs.
It is ordered that a copy of this rule be pasted up in
the Clerk's office.
The court adjourns until Tuesday next, at eleven
o'clock.

TUESDAY, THE 24th DECEMBER.

Georgen
vs.
Ross, as attorney
to Mcfarlane.
(Prom Tuesday
last.)

The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appeared in person.
John Charles Stewart appeared for the defendant and
filed his rejoinder to the plaintiff's replication.
The Court wUl further hear the parties in this cause
the first day of the term in March next ensuing agreeable
to their own request.

UPPER CANADA COURT RECORDS.

311

The plaintiff appears in person.
The defendant appears and filed his plea in bar.
The plaintiff in replication says he did not know the
defendant had any right or title to the premises, and
and although he paid money to the defendant it was not
on account of rent, neither did the defendant grant any re
ceipt for it as rent.
The Court will further hear the parties on Thursday
next in this action.
The Court adjourned till Thursday next at eleven
o'clock.

Titus Simons
vs.
Nell McLean.

THURSDAY, THE 26th OF DECEMBER.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
and Hector McLean, Esquires.

The plaintiff appears in person.
The defendant appears.
The Court having heard the argument from both parties
will give judgment in this cause on Tuesday, the 31st day
of December instant.
The Court adjourned till Tuesday, the thirty-first of
December, at eleven o'clock in the forenoon.

Titus Simon,
plaintiff, vs.
Nell McLean.

TUESDAY, THE 31st. DECEMBER, 1793.

The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appears.
The defendant likewise.
The plaintiff in his declarations says the defendant
distrained and without shewing that he had any right or
title to the premises. And again, in his replication, saith
the plaintiff never showed him any title to the premises.
He neither denies the defendant's titlel or authority, or
that the rent which he hath distrained is due, the only
material points in which a question can be made. In the
act of levying a distress for rent it is not usual nor is it
necessary to set forth the particulars of the distrainor's
titie. It is sufficient to say it is in behalf of the landlord
or his agent for rent due. And if the tenant'-intends to
controvert the title or deny that there is rent in arrears he
should do so explicitly in his replication. Therefore for
want of sufficient replication it is granted that the said
NeU McLean bave a return of the said goods.

Titus Simon
vs.
Nell McLean,

312

UPPER CANADA COUET RECORDS.

Alex'r Chisholm
vs.
John Dafoe.
(After sittings.)

TUESDAY, 14th JANUARY, ADOLPHUS TOWN.
The Court met pursuant to adjournment.
Present: The Honourables Eichard Cartwright, Jun.,
Neil McLean, and Hector McLean, Esquires.
The plaintiff appeared.
The defendant likewise appeared.
The jury were called and sworn : —
1. Henry Davis. 7.
2. David Palmer. 8.
3. Henry Hover. 9.
4. Edward Eikeman. 10.
5. James Morden. 11.
6. John Spencer. 13.

Nicholas Lake.
Henry Spencer.
Isaac Parliament.
Henry Simmons.
John Eeid.
Eichard Morden.

Evidence sworn for the plaintiff: William BeU, Abra
ham Dafoe, Duncan Bell, Alexander Clarke, Andrew
Eikely. Evidence sworn for defendant.
The jury withdrew to consider of their verdict, and
having returned into court by their foreman, John Eeid,
find a verdict for the defendant.
The Court adjourned until twelve o'clock to-morrow.
WEDNESDAY, THE 15th JANUARY, 1794.
The Court met pursuant to adjournment.
Present: The same Judges.'

Pritchard vs.
McLean.

The plaintiff appears.
The defendant likewise.
The jury were caUed and sworn :-
1. John West. 7.
2. Christian Peterson. 8.
3. Conrad Vandeuser. 9.
4. WiUiam Poster. 10.
5. Joseph Clapp. n.
6. Nicholas Peterson. i2.

Peter Rattan.
Barnard Cole.
Nicholas Vassals.
Zadock Thrasher.
David Harris.
Robert Wright.

Evidences called for plaintiff: Thomas Elms Mathews,
WUliam Simpson, and John Thorn.
Evidences for defendant: Daniel McMullen and John
Simpson. John Ben, constable, was sworn to attend the jury.
The jury withdrew to consider of their verdict and
having returned into court by their foreman, Conrad Van
duser, find a verdict of fifteen pounds currency for the
plaintiff, with costs of suit.

UPPER CANADA COURT RECORDS.

313

Due notice having been given to the plaintiff, the ^®'"^*''
parties consent to put off this cause until the 3rd of April, Waiker.
1794. The Court adjourned until Monday, 17th March, at
Kingston.
DISTEICT OF MECKLENBURG, KINGSTON.
COURT OF COMMON PLEAS.

SATURDAY, THE 5th DAY OF JUNE, 1790.
Present : Richard Cartwright, Jun., Esq.
The plaintiff demands of the defendant the sum of
seven pounds currency due per his promissory note.
The defendant being called made default. P. Clark
appears for the plaintiff and produces the defendant's note
due the plaintiff for the sum of six pounds, fifteen shillings
and eightpence currency, the Court do therefore order that
the plaintiff shall recover of the defendant the said sum,
with costs taxed at thirteen shillings and twopence.
SATURDAY, THE 12th JUNE, 1790.
The Court met pursuant to adjournment.

Present :

Richard Cartwright,

Esq.

The plaintiff demands of the defendant the sum of one
pound, fifteen shiUings for three and a half bushels of
wheat. The defendant appears and produces an account
against the defendant which the Court cannot admit to
be set-off against the demands of the plaintiff, for want
of sufficient proof to substantiate his said claim, but it
appears by the acknowledgment of the plaintiff that the
defendant has a just claim of twenty-two shillings, tho
Court do therefore order that the defendant shall pay the
balance of thirteen shillings, with costs taxed at fourteen
shUlings and fourpence, reserving to the defendant the
right to sue for any just demand he may have, exclusive
of the sum already allowed.
The plaintiff demands of the defendant the sum of nine
pounds, ten shillings, due him on account.
The defendant being called made default.
It appears to the Court by the written obligation of
the defendant that he is justly indebted to the plaintiff
the said sum of nine pounds, ten shUlings. The Court
do therefore order that the plaintiff shaU recover the same
with costs taxed at thirteen shillings and twopence.
The Court adjourned to Saturday next.

Conrood -Vanduser
vs.
Tlmt. Prindle.

Henry Kusenburg
vs.
Fred'k Piper.

John Foster
VB.
Simon J. Cole.

314

UPPER CANADA COUET EECOEDS.

SATUEDAY, 19th JUNE.

Present : Neil McLean, Esq.

Arch'd Thomson
vs.
John Duncan.

The plaintiff demands the sum of ten pounds currency
for damages for having inveigled his servant man. The
Court having heard the parties, it appears that plaintiff
had refused to accept the labour of his said servant, and
it was after that the defendant did employ him, and it does
not appear by suffieent proof that the defendant did in
veigle him as set forth in the declaration. The Court do
therefore order that the plaintiff do pay costs taxed at
thirteen shillings and twopence.
The Court adjourns to Saturday next.

SATUEDAY, 26th JUNE, 1790.

Esq.

Present: Eichard Cartwright, Esq., and Neil McLean,

No business.
The Court adjourns to Saturday, the 24th July.

SATUEDAY. S4th JULY.

Mathew Donavan
vs.
Rich'd Bushell.

Elizabeth Thomson
vs.
Reaford & Sheriff.

The Court met pursuant -to adjournment.
Preselit: Eichard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant seven shiUings
currency for fees due him as clerk of the Land Board. The
defendant being duly caUed made default.
It appears to the Court that the defendant is justly
indebted to the plaintiff the said sum, the Court do there
fore order that the plaintiff shall recover the sum with
costs taxed at twelve shillings and twopence.
The plaintiff demands of the defendants 'the sum of
one pound, one shilling currency for cheese sold them.
It appears to the Court that the plaintiff had authorised
Mr. Farley to receive the said sum of one pound, one shU-
ling from the defendants, and the defendant Sheriff de
clares upon oath that Mr. Farley deducted that sum from
wages due him.
Thomas Reaford upon oath also declares that Mr. Far
ley acknowledged to him that he had received payment
from Sheriff. The Court do therefore order that this cause
be dismissed, and that the plaintiff shall pay costs taxed at
thirteen shillings and twopence currency.

UPPER CANADA COURT RECORDS.

315

The plaintiff demands of the defendant the sum of one
pound, five shillings for amount of account.
It appears by evidence that the defendant is justly in
debted to the plaintiff the said sum, the Court do there
fore order that the defendant shall pay the same, with
costs taxed at twelve shillings and twopence.
The Court adjourns to Saturday next.

William Atkinson
vs.
John McMichel.

SATURDAY, 31st JULY, 1790'.
The Court met pursuant to adjournment.
Present: Richard Cart-wright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant the sum of two
pounds, fifteen shillings and ninepence currency for sun
dries' delivered him.
The Court having heard the parties will deliberate on
the merits of this cause, and will give judgment on
Saturday next.
The plaintiff demands of the defendant the sum of
eight pounds currency for damages in making hay in his
meadow. N The defendant appears in person and prays that this
cause may be heard next Saturday, his evidence not being
present. The Court do order that this cause may' be tried as
prayed.

John Ferguson
vs.
Joseph Pritchard,
taylor.

Gilbert Orser
va.
Joseph Ferris.

The plaintiff demands of the defendant the sum of six
pounds currency for amount of account and damages to
his house and garden.
The defendant appears in person and prays that this
cause may be heard on Saturday, the fourteenth day of
August. The Court do order that this cause may be tried as
prayed. The Court adjourn to Saturday next.

Jolin Holmes
John Smith.

Esq.

SATURDAY, 7th AUGUST.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Esq., and Neil McLean,

The plaintiff demands of the defendant the sum of
eight pounds for damages in making hay in his meadow
without leave.

John Ferguson
vs.
Joseph Pritchard.
Frora last term.
Gilbert Orser
vs.
Joseph Ferris.

316

UPPER CANADA COURT RECORDS.

The Court having heard the parties do order that the
plaintiff shall have the hay made in the said meadow, and
that the plaintiff shall pay the defendant one pound, ten
shillings for his trouble in making it, and that the de
fendant shall pay costs taxed at twelve shillings and two
pence.

John Holmes
vs.
John Smith.

SATURDAY, loth AUGUST.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Esq.,
McLean, Esq.

and Neil

The plaintiff demands of the defendant the sum of
six pounds currency for amount of account and damages
to his house and garden.
The Court having heard the parties, likewise the evi
dence in this cause, do order that the defendant shall pay
the plaintiff ten shUlings damages and costs taxed at four
teen shiUings and sixpence.
The Court adjourns to Saturday next.

SATURDAY, 21st AUGUST, 1790.
The Court met pursuant to adjournment.
Present : The two Judges.
No business.
The Court adjourns to Saturday next.
SATURDAY, 21st AUGUST.
The Court met pursuant to adjournment.
Present: The same Judges.
No business.
The Court adjourn to Saturday next.

Oliver Arnold
vs.
William Fairfield.

SATURDAY, 4th SEPTEMBER, 1790.
The Court met pursuant to adjournment.
Present: Neil McLean, Esq.
The plaintiff demands of the defendant the sum of one
pound currency for unlawfuUy detaining his cloaths.
The Court having heard the parties, it appears that the
plaintiff is indebted to the defendant the sum of four shil
lings and ninepence currency, the Court do therefore order

UPPER CANADA COURT RECORDS.

317

that the plaintiff shall satisfy the same, and that the de
fendant shall deliver whatever he has detained belonging
to the plaintiff and the plaintiff shall pay costs taxed at
eleven shUlings and twopence.

SATURDAY, 11th SEPTEMBER.
The Court met pursuant to adjournment.
Present: The two Judges.
No business.
The Court adjourns to Saturday, the second day of
October next.

SATURDAY, 2nd OCTOBER, 1790.

The Court met pursuant to adjournment.
Present : Richard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant the sum of
seven pounds, thirteen shillings and fourpence for amount
of sundry accounts.
The defendant being duly called made default.

Peter Wartman
va.
Law'e Eldam.

The plaintiff demands of the defendant the sum of
seven pounds, six shillings, for his promissory note, which
is exhibited and filed.
The defendant appears in person and acknowledges the
said debt.
The Court do therefore order that the plaintiff shall re
cover the same with costs taxed at eleven shillings and
twopence.

James Robins
vs.
Dan'l McQuinn.

The plaintiff demands of the defendant the sum of
eighteen shillings for amount of account.
The Court having heard the parties it appears that the
defendant is justly indebted to the plaintiff the said sum
of eighteen shillings, and they therefore order that the
plaintiff shall recover the same with costs taxed at twelve
shUlings and sixpence.
The plaintiff demands of the defendants the sum of
seven pounds, eleven shillings, for amount of account and
damages. The Court having fully heard the parties and their
respective evidence, likewise the different exhibits filed in

Sam'l Thomson,
Oliver Church,
plaintiffs, vs.
EbenezerWashburn.

Eben'zr Washburn
vs.
Sam'l Thomson,
Oliver Church.

318

UPPER CANADA COURT RECORDS.

this cause, do order and adjudge: That the plaintiffs shall
recover of the defendants the sum of one pound currency for
this debt and damages with costs taxed at fifteen shillings
and sixpence.

James Kemp
vs.
Ebn'r Washburn.

The plaintiff' demands of the defendant the sum of six
pounds currency for damage for breach of agreement.
The defendant appears and says that he has made uo
agreement with the plaintiff.
The Court having examined Jas. McTagart and Geo.
Finkle upon oath, it appears that the defendant did enter
into an agreement with the plaintiff for to clear a certain
quantity of land for the defendant; it also appears to the
Court that the plaintiff agreed to let the defendant have
the choice of all his ecws except one in part payment of
the work done for the plaintiff, and 'Jiat af^er the said
work was done the plaintiff did refuse to let the defendant
have the choice of his cows.
The Court do therefore order that tlie plairtiff shaU
reeovfci of the defendant the sum of six pounds currency
with costs taxed at oq3 pound, three shiUings and iwo-
p."'nee.

Zacharias Trompour vs.
Joseph Allen.

The plaintiff demands of the defendant the sum of five
pounds currency for taking wheat, the property of the
plaintiff. The defendant appears and says that he has not been
legally summoned to appear in this cause.
It does not appear to the Court that the defendant has
been duly summoned, therefore do dismiss this action with
costs — ten shillings and twopence.

Joseph Allen
vs.
Jno. Martin,
trader.

Joseph Allen
vs.
Wm. Cambell.

The plaintiff demands of the defendant the sum of
eight pounds, ten shUlings for promissory note and amount
of account. The defendant being duly called made default.
The plaintiff demands of the defendant the sum of ten
pounds currency for his promissory note and amount of
account. The defendant being called made default.
Adjourned to Saturday next.

SATURDAY, 9th OCTOBER.

The Court met pursuant to adjournment.
Present: The two Judges.

UPPER CANADA COURT RECORDS.

319

The plaintiff appears in person and filed a warrant of
attorney from George Harper, Mic'l Taylor and Mic'l
Dedrick, to sue in their names for certain debts due them
by the defendant, account of which are duly filed.
The Court having examined the said account and the
above named persons having duly attested their respective
demands the Court do order and adjudge that the plaintiff
shall recover of the defendant the sum of six pounds,
eighteen shillings and fonrpence, with costs taxed at fif
teen shillings and sixpence.

Peter Wartman for
himself, George
Harper, Mic'l
Taylor & Mich'l
Dedrick, vs.
Law'e Eldam.
(From last
SatuiMJay.)

The plaintiff appears in person and produced and filed
the defendant's promissory note and account amounting to
nine pounds, sixteen shillings and sixpence.
The Court do order that the plaintiff shall recover of
the defendant the said sum with costs taxed at eleven shil
lings and twopence.

Joseph Allen
vs.
William Gambeli.
(From last
Saturday.)

The plaintiff appears and filed the defendant's note-of-
hand and account amounting to the sum of eight pounds,
five shillings and ninepence.
The Court do order that the plaintiff shall recover of
the defendant the said sum with costs taxed at fourteen
shillings and tenpence.

Joseph Allen
vs.
Martin, Trader.
(Prom last
Saturday,)

The plaintiff demands of the defendant the sum of one
pound, nineteen shiUings for amount of account.
The defendant being called made default.
The plaintiff produced and filed his account, duly at
tested, amounting to the sum of one pound, fourteen shil
lings and tenpence currency.
The Court do order that the plaintiff shall recover of
the defendant the said sum, with twelve shillings and two
pence costs.

Joseph Allen
vs.
Dan'l McQuinn.

'The plaintiff demands of the defendant the sum of
six pounds currency for wheat.
It appears to the Court that the plaintiff had permis
sion to sow wheat on a lot of land formerly the property
of S. J. Cole, which land has since been conveyed to the
defendant, since which time the defendant considered the
crop arising from the said wheat to be his property, but it
does not appear to the Court that the defendant has any
the least title to the said wheat, therefore the Court do
order that the defendant shall deliver to the plaintiff the
said wheat and pay the sum of twelve shillings and two
pence costs.

Zacharias Trompour vs.
Joseph Allen.

320

UPPER CANADA COURT RECORDS.

Peter Coles
vs.
Joseph Allen.

Isaac Cole
Vs.
Joseph Allen.

Peter Woodcock
V3.
Abra'm Woodcock.

The plaintiff demands of the defendant the sum of six
pounds for wheat.
It appears to the Court this demand is exactly the same
nature as the last action against the defendant. The Court
do therefore order that the plaintiff shall recover his wheat
and that the defendant shall pay costs taxed at thirteen
shillings and twopence.
Simon J. Cole appears for the plaintiff and demands of
the defendant the sum of six pounds for wheat.
The defendant demands that the said, Simon J. Cole
may produce his warrant of attorney to appear in this
cause. The said S. J. Cole having no warrant to appear to this
action the Court do order that the plaintiff shall pay costs
taxed at twelve shillings and twopence.
Adjourned to Saturday, the 23rd inst.
SATURDAY, 23rd OCTOBER, 1790.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jim., Esq., and NeU
McLean, Esq.
The plaintiff demands of the defendant the sum ot ten
pounds currency for wheat and corn and damages in
having unlawfully kept the same from the plaintiff.
It appears that the plaintiff had assisted to plant and
tend about two and a half acres of corn on the defendant's
land, on shares, and it appears that the defendant has
offered to deliver the plaintiff one third part of the pro
duce, and it further appears to the Court that such a share
was sufficient for the plaintiff's labour, the Court do there
fore order that the defendant shall deliver! thirteen and
half bushels of said corn with one third share of stalks,
etc., supposed to be third part, and that the plaintiff shaU
pay costs taxed at seventeen shillings and twopence.
The Court adjourns to Saturday next.
SATUEDAY, 30th OCTOBER.
'Phe Court met pursuant to adjournment.
Present : The two Judges.
No business.
The Court adjourns to Saturday next.
SATURDAY, 6th NOVEMBER.
The Court met and adjourned.
No business. -

UPPER CANADA COURT RECORDS.

321

SATURDAY, 13th NOVEMBER.
The Court met and adjourned to Saturday, the 4th
December next.
SATURDAY, 4th DECEMBER, 1790.
The Court met and adjourned to Saturday, the
ele'Venth. No business.
SATURDAY, 11th DECEMBER.

The Court met.
Present: Richard Cartwright, Jun., Esq., and Neil
McLean, Esq.
The plaintiff demands of the defendant the sum of six
pounds, fifteen shUlings currency due for his promissory
note. The defendant being duly called made default.
Thomas Dorland appears for the plaintiff and presents
the defendant's promissory note for the aforesaid sum.
The Court do therefore order that the plaintiff shall
recover of the defendant the sum of six pounds, fifteen
shiUings for his debt. Twelve shUlings and sixpence
costs.

Nathaniel Somes
vs.
Daniel McMullan.

The plaintiff demands of the defendant the sum of two
pounds, eleven shillings and eightpence currency, due for
balance of account. The defendant being duly called made
default. The plaintiff appears in per.-on and exhibits an account
against the defendant for the sum of two pounds, eleven
shillings and sevenpence currency, to which he has duly
sworn. The Court therefore order that the plaintiff shall re
cover of the defendant the said sum, with thirteen shU
lings and twopence costs.
The plaintiff demands of the defendant the sum of ten
shillings currency for account.
The defendant appears in person.
The Court having heard the parties are of opinion that
the plaintiff has no just grounds of action of the de
fendant. The Court therefore do order that thc plaintiff do pay
costs taxed at thirteen shillings and twopence.
22a

Simon J. Cole
- VS.
Joseph Carnahan.

John Foster
VS.
Jacob Loucks.

322

UPPEE CANADA COURT RECORDS.

John Foster
vs.
Dan'l McMullan.

John decourcy Gill
vs.
Thomas Dorland.

S'imon J. Cole
vs.
Joseph Allen

Cole vs.
Carnahan.

The plaintiff demands of the defendant the sum of five
pounds, eight shillings and twopence.
On niotion of the plaintiff, the Court orders that this
cause may be tried on Saturday next.
The plaintiff demands of the defendant the sum of one
pound currency for amount of account.
The plaintiff being duly called made default.
The defendant appears in person and represents to the
Court that he conceives himself injured by the plaintiff, in
not appearing to prosecute this action, and that the de
fendant has been at much expense in bringing his witness
and that he is not indebted to the plaintiff, therefore prays
that the Court will order the plaintiff to pay his costs.
The Court having considered the demand of the de
fendant do order that the plaintiff shall pay the defendant
the sum of fifteen shillings and the plaintiff to pay costs.
The Court adjourns to Saturday next.
SATURDAY, 18th DECEMBER, 1790.
The Court met.
Present Richard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant the sum of
three pounds currency for a ton hay.
The Court having heard the parties, it appears that the
hay in question was cut on land sold to the defendant by
the plaintiff the 15th day of July last, but by a writing
produced by the plaintiff signed by the defendant bearing
date the same day, it appears that three months was allowed
the plaintiff to redeem this land, which in reality converts
tiie sale into a mortgage, and preserves to the plaintiff the
property of the hay and corn growing thereon.
The Court do therefore order that the plaintiff shaU
have the hay cut on the land in question, and that the de
fendant do pay the costs of suit amounting to twelve
shillings. Joseph Carnahan appears in court and prays that the
cause between him and Simon J. Cole given against him
by default may be reheard.
It appears that said Carnahan did use his endeavour to
attend on Saturday last agreeable to the summons, and
actually came to town soon after the breaking up of the
Court, and that he has evidence to produce in his behalf;
it is ordered that the judgment given on the 11th inst. be
suspended and this cause be heard on the 10th day of
February next at Adolphus Town, in the Circuit Court

UPPER CANADA-COURT RECORDS.

323

The Court adjourn to Saturday the 22nd January
next. SATURDAY, 22nd JANUARY, 1791.

The Court met.
Present: Richard Cartwright, Esq., and Neil McLean,

Esq.

No business.
The Court adjourns to Saturday next.
SATURDAY, 29th JANUARY, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, NeU McLean,
Hector McLean, Esquires.

and

The plaintiff demands of the defendant the sum of five
pounds currency for damages for unlawfuUy detaining his
property. The Court having heard the parties, it does not appear
that the plaintiff has any just grounds for complaint
against the defendant, therefore order this cause to be dis
missed, and that the plaintiff do pay costs.
The Court adjourns to next Saturday.
SATURDAY, 5th FEBRUARY, 1791.
The Court met pursuant to adjournment.
Present : Neil McLean, Esq.
No business.
The Court adjourned to Saturday, the twenty-sixth

inst.

SATURDAY, 26th FEBRUARY, 1791.

Present: Richard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant the sum of
one pound and threepence currency due on his promissory
note and amount of account. ,
The defendant appears and prays orgn. of the note,
which appears to be dated the twelfth day of March, in the
year one thousand seven hundred and eighty-one, and the
defendant saith that no demand has been since made for
the payment of the said note and pleads the Statute of
Limitations.

James Connor
va.
David Betton.

Charles Bennett
vs.
Mathew Dies.

324

UPPER CANADA COURT RECORDS.

The defendant acknowledged the account amounting
lo three shillings and sixpence.
Therefore the Court do order and adjudge that the
plaintiff shall recover the sum of three shillings and six- >^»
[)ence, with costs taxed at eleven shillings and twopence.
SATURDAY, Sth MARCH, 1791.
Present: Richard Cartwright, Esq., and Hector
McLean, Esq.
No business.

Esq.

SATURDAY, 12th MARCH.
The Court met.
Present: Richard Cartwright, Esq., and Neil McLean,

-Mex-r Simpson
vs.
Eiisha Phillips.

The plaintiff' demands of the defendant the sum of
one pound, due for amount of account. The defendant
being duly called made default.
The plaintiff produced his account against the de
fendant, and having made oath to the same, the Court do
consider that the plaintiff shall recover of the defendant
Ihe sum of one pound for his debt and fifteen .shillings
and twopence costs.

Alex'r Simpson
vs.
Ruloff & John
Vandican.

Alex'r Simpson
vs.
Jno. Dec'y Gill.

The plaintiff demands of the defendants the sum of four
])ounds currency due for their promissory note.
The said defendants being duly called made default.
The plaintiff exhibits and filecl defendants' promissory
note, bearing date the twenty-eighth day of August, 1790,
for the sum of four pounds.
The Court do consider that the plaintiff shall recover
of the defendant the said sum of four pounds for his debt
and fourteen shillings and sixpence for costs.
The plaintiff demands of the defendant the sum of one
pound, four shillings and sixpence, for amount of account.
Tlie defendant being duly called made default.
The Court being well satisfied that the defendant could
not attend for his present Ijad state of heaUli do order
that the cause may be tried thc 2nd .\.])ril.

SATURDAY. 2nd APRIL. 1791.

E.q.

Present: Richard Cartwright. Esq.. and Neil McTjcan.

UPPER CANADA COURT RECORDS.

335

The plaintiff demands of the defendant the sum of two
pounds currency due for damages for grain aud straw, let
him, and not yet returned.
The parties not being fully prepared for trial, have
mutually agreed that the matter in dispute may be sub
mitted to the award of Capt. Jno. Everett, and that the
said award may be given into this Court in writing on
Saturday, the 23rd inst.
The Court adjourned to Saturday, the 16th inst.

George Harper
vs.
John Holmes.

SATURDAY, 16th APRIL, 1791.
Present: Neil McLean, Esq.

The plaintiff demands of the defendant the sum of six
pounds, five shillings, due for his promissory note.
The defendant made default.
The plaintiff prays that judgment may be given on
Saturday next.
The Court adjourned to Saturday, the twenty-third
inst.

Peter Clark
vs.
Stephen Brown.

SATURDAY, 23rd APRIL, 1791.

Esq.

Present: Richard Cart^?yright, Esq., and Neil McLean,

The plaintiff demands of this defendant the sum of one
pound, seventeen shillings and tenpence currency due for
his note.
The defendant being called made default, and the
plaintiff having exhibited and filed the plaintiff's note,
The Court having considered the default and likewise
the note filed, the Court do order that the plaintiff shall
recover the sum of one pound, seventeen shillings and ten-
pence with costs taxed at eleven shUlings and twopence.

Charles Lilly
vs.
Philip P. Lansing.

The plaintiff having filed the defendant's note, p^j^r ci^i.k
The Court do consider that the plaintiff shaU recover mgp^|'„ Brown.
of the defendant the sum of six pounds, five shillings for (From last
said note, with eleven shillings and twopence costs.
The Court adjourns to Saturday next.

Saturday.)

SATURDAY, 30th APRIL, 1791.

Pre.sent: Richard Cartwright, Esq, and NeU McLean,

Esq.

326

UPPER CANADA COUET EECORDS.

Wm. Muir
vs.
Ohrs. Georgeon.

William MIeur
vs.
Christ'r Georgeon.
(From last
Saturday.)

The plaintiff demands of the defendant the sum of ten
pounds currency for damages sustained in breach of agree
ment. The defendant prays time until Saturday next.
The Court do order that this cause be tried on Satur
day next.
Adjourned to Saturday next.
SATURDAY, 7th MAY, 1791.
The Court met pursuant to adjournment.
Present : Richard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff appears iu person.
The defendant also appears in person.
The Court having heard the parties, likewise the evi
dence in this cause, it appears that the plaintiff was to
furnish the,' defendant with a pair of horses this spring
for the purpose of improving the plaintiff's land, and that .
the defendant having demanded the said horses of the
plaintiff the plaintiff refused delive'ring the same accord
ing to agreement, by which the plaintiff has suffered
damages to the amount of five shillings.
The Court therefore do 'order and adjudge that the de
fendant shall pay the same, with costs taxed at eleven
shiUings and twopence.
The Court adjourn to Saturday next.

Titus Simons
vs.
Wni'm Sherriff.

SATURDAY, 14th MAY, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Esq., and Neil McLean,
Esq. The plaintiff demands of the defendant the sum of
three pounds, eighteen shiUings currency, for his promis
sory note.
The defendant being duly caUed made default.
The plaintiff produced the said notes.
The Court having considered the same, likewise the
default of the defendant, do order and adjudge that the
plaintiff shaU recover of the defendant the sum of three
pounds, eighteen shiUings for the said notes, and likewise
eleven shillings and twopence costs.
SATURDAY, THE 21st MAY. 1791.
Present: Richard Cartwright and Neil McLean,
Esquires. '
No business.

UPPER CANADA COURT RECORDS.

327

SATURDAY, THE 28th MAY, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Esq., and Neil
McLean, Esq.

The plaintiff appears in person and demands of the
defendant the sum of ten pounds, one shilling currency,
due for amount of account.
The defendant appears in person and prays that time
may be aUowed him to procure his evidence.
The Court do order that this cause may be tried next
Saturday.

Phillip P Lansingh
vs,
Willet Casey.

The plaintiff appears in person and demands of the
defendant the sum of two pounds, four shillings and three
pence currency, for amount of account.
The parties do mutually agree that the matter in dis
pute shall be referred to the judgment of Daniel Wright,
Esq., to determine, and that his award may be given in
writing in the space of three weeks from this date.
The Court do order that the matter in dispute may be
determined as prayed.

Edward Hicks
vs.
John Quigely.

The plaintiff demands of the defendant the sum of
five pounds currency, due for part of a certain sum awarded
to him for damages sustained in breach of agreement.
The Court having fully heard the parties, likewise
having examined the bond filed by the plaintiff and the
award given in writing by the arbitrators, will take time to
deUberate further in this cause, and that judgment will be
given on Saturday next.
The Court adjourns to Saturday next.

William Mleur
vs.
Christopher Georgen.

SATURDAY, 4th JUNE, 1791.
Present: Richard Cartwright, Jun., Esq., and NeU
McLean, Esq.
The Court having fully heard the parties, likewise the
evidence in this cause, it appears that the defendant is in
debted to the plaintiff the sum of three pounds, six shiUings
and tenpence currency; the Court, therefore, order that
the plaintiff shall recover the same, with costs taxed at
twelve shillings and twopence.

Phillip p.
Lansingh vs.
Willet Casey.
(From last term.)

UPPER CANADA COURT RECORDS.

^\-illiai-n Mleui'
vs.
ChristopherGeorgeon. (From last term.)

The Court having duly deliberated on the merits of
this cause do consider that the plaintMf shall recover of
the defendant the sum of five pounds currency in part of
the sum awarded him by the arbitrators mutually chosen
and appointed by the parties, with costs taxed at eleven
shillings and twopence.
The Court adjourns to Saturday next.

SATUEDAY, JUNE 1.1th.
The Court met.
Present: Richard Cartwright and Neil McLean,
Esquires. No business.
The Court adjourned until Saturday next.
SATURDAY, 18th JUNE.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Esq., and Neil
McLean, Esq.
No business. SATURDAY, 25th JUNE, 1791.

Henry Smith
vs.
Joseph Allen.

John & Ruloff
¦\"andecan vs.
Alex'r Simpson.

The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Esq., and Neil
McLean, Esq.
The plaintiff demands of the defendant the sum of five
pounds currency for damages sustained in working his
mare without leave. The parties do mutually agree that
the matter in dispute between them shall be determined by
Daniel Wright.
The Court do therefore order that this action may.be
determined as prayed, and that his award shaU be given in
writing before the last day of July next.
SATURDAY, 6th AUGUST, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., Esq., and NeU
McLean, Esq.
The plaintiff demands of the defendant the sum of
four pounds, four shiUings and ninepence currency, for
amount of account.
The defendant being duly called made default.

UPPER CANADA COURT RECORDS.

329

The plaintiff fUed his said account to which he made
oath, likewise filed the, defendant's note for the balance
charged on said account.
The Court therefore order that the plaintiff shall
recover of the defendant the said sum of four pounds, four
shiUings and ninepence for his debt, and fourteen shillings
and sixpence.

The plaintiff demands of the defendant the sum of ten
pounds, seven shillings, due for amount of account.
The defendant appears in person and objects to the
two first charges in the said account.
The defendant, not being prepared with his evidence,
prays that this cause may be ordered for next Saturday.
Ordered accordingly.

Charles Lilly
vs.
John Cumming.

The plaintiff demands of the defendant the sum of ten
pounds currency, for damages for breach of promise.
The defendant appears in person and prays time until
next Saturday to procure his evidence.
Ordered accordingly, as prayed.

Charles Lilly
vs.
John Cumming.

The plaintiff demands of the defendant the sum of five
pounds, ten shillings currency, due for amount of account.
The Court having fully heard the parties, likewise the
evidence in this cause, are not prepared to give judgment in
this cause, therefore will take time to deliberate.

John Cumming
vs.
Oharies Lilly.

The plaintiff demands of the defendant the sum of
seventeen shillings and eightpence currency for his note.
The defendant being duly called made default.
The Court having examined the said note and con
sidered the default of thc defendant to adjudge that the
plaintiff shall recover of the defendant the sum of seven
teen shillings and eightpence, with eleven shUlings and
twopence costs.
Adjourned to Saturday next.

Richard Campbell
vs.
Alex'r McDonell.

SATURDAY, 13th AUGUST, 1791.

Present: Richard Cartwright and Neil McLean.
In allowing to each party the charges, either unob
jected to by the other or supported by evidence, there ap
pears due to Mr. Lilly four pounds currency, exclusive of
the twelve shillings for the gammon, to be accounted for
by Mr. Cummings, and as the suit brought by Mr. Cum
mings was perfectly unnecessary as his account would
have been equaUy allowed without it, it is considered that
23 A.

Lilly vs.
Cummings and
Cummings vs.
Lilly. (From last
Saturday. )

330

UPPER CANADA COURT RECORDS.

the said Cummings shall pay the said Lilly the aforesaid
sum of four pounds, and defray the costs of the two actions,
taxed at twenty-seven shiUings and fourpence.

Charles Lilly
vs.
John Cumming.
(Prom Saturday
last.)

For action of damages.
The Court having fully heard the parties, likewise the
evidence in this cause, will take time to deliberate and give
judgment next Saturday.

Agnes Taylor
vs.
Ebenezer-Washburn.

The plaintiff demands of the defendant the sum of
seven pounds, five shillings currency, due for his pro
missory note and filed the said note.
The Court having fully heard the parties will give
judgment on Saturday, the 27th in,st.

James Clark, Jun.,
vs.
Daniel McMullan.

The plaintiff demands of the defendant the sum of one
pound, two shillings and twopence currency for his pro
missory note.
The defendant made default.
The Court do consider that the plaintiff shall recover
the sum of one pound, two shillings and twopence for his
note, and twelve shillings and sixpence costs.

Thomas TInbrook
vs.
James Kemp.

The plaintiff appears and demands of the defendant the
sum of ten pounds currency for damages. The plaintiff
also appears and prays that this cause be dismissed as the
said James Kemp is not indebted to him, and that John
Kemp, Sen., is the person he intended to summon.
The Court do order that the defendant be dismissed,
with five shillings costs.

Thomas TInbrook
V8.
Martin Snook.

The plaintiff demands of the defendant the sum of
nine pounds currency for amount of account.
The Court having fully heard the parties, likewise the
evidence in this cause, it does not appear that the plaintiff
has any ground for an action against the defendant. The
Court therefore order that the defendant be dismissed, and
that the plaintiff pay costs taxed at one pound and eleven
pence.

Peter Clark
vs.
Willet Casey.

The plaintiff demands of the ' defendant the sum of
ten pounds, ten shillings and fourpence currency for
amount of account.
The defendant being duly called made default.
Mr. Robins appears for the defendant and presented
an appHcation to have this cause adjourned untU next
Saturday. The Court do order that it may be heard as prayed.
The Court adjourn to Saturday next.

UPPER CANADA COURT RECORDS.

331

SATURDAY, 20th AUGUST, 1791.
Present: NeU McLean, Esq.

In action for damages.
The Court having duly deliberated on the merits of this
cause do consider that the plaintiff shall recover of the
defendant the sum of two pounds, fifteen shillings for his
damages and costs of suit, taxed at twenty-four shillings
and twopence.

Charles Lilly
vs.
Jno. Cumming.

The plaintiff demands of the defendant the sum of ten
pounds currency for damages, in non-performance of his
written obligation.
By consent of the plaintiff this cause is ordered for
Saturday next.

Christopher Georgen vs.
William Muir.

The plaintiff demands of the defendant the sum of
nine shillings for his note and account.
The defendant made default.
The Court having considered the default of the de
fendant and exajjiined the several exhibits filed do order
that the plaintiff shall recover the sum of nine shiUings for
his account and costs taxed at twelve shillings and ten-
pence (12s. lOd.).

Peter Clark
vs.
Peter Woodcock.

The plaintiff demands of the defendant the sum of ten
pounds, ten shUlings and fourpence currency, due for
amount of account.
The Court having fully heard the parties, likewise ex
amined the several exhibits filed in this cause, will take
time to deliberate and give judgment on Saturday next.
The Court adjourned untU Saturday, the^ twenty-
seventh inst.

Peter Clark
vs.
Willet Casey.

SATURDAY, 27th AUGUST, 1791.

The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
Esq., and Neil McLean, Esq.
The Court having duly considered the merits of this
cause, likewise examined the several exhibits filed, do ad
judge that the plaintiff shall recover of the defendant the
sum of nine pounds, sixteen shillings and sixpence cur
rency, with costs taxed at twelve shillinga and twopence.

Peter Clark
vs.
Willet Casey.
(Prom last
Saturday.)

332

UPPER CANADA COURT RECORDS.

Christopher Georgen vs.
William Muir.
(Prom Saturday
last.)

Alexander Simpson
vs.
William Cadman.

Thomas Sparham
vs.
John Thorn.

,^gnes Taylor
vs.
Bhenezer Wash
burn. (From Saturday,
the 13th instant.)

John McLeod
vs.
'J'rans. Roshleau.

Peter Clark
ve.
George Campbell.

Peter Clark
vs.
Jno. Howell.

The plaintiff appears in person.
The defendant also appears in person.
The Court having fully heard the parties, like^wise ex
amined the several exhibits filed, will take time to de
liberate and give judgment in this cause on Saturday next.
The plaintiff demands of the defendant the sum of four
pounds, five shillings and elvenpence.
By consent of parties the Court do order that the
matter in dispute may be examined and determined by
Gilbert Sharp and Alexander Clark, and that their award
shall be ready to be given to thd parties in writing on
Saturday, the tenth day of September next.
The plaintiff demands of the defendant the sum of
three pounds currency, due for a canoe, lent the defendant
and returned.
The plaintiff prays time until next Saturday to pro
duce his evidence.
The Court do order that this cause may be tried as
prayed. The plaintiff appears in person and prays that judg
ment may be given in this cause.
The defendant appears by Tihis Simons and prays
that the land may be conveyed to the defendant as stated
in his note.
The Court do order that this cause may be fully heard
and determined on Saturday, the lOth inst.
The plaintiff demands of the defendant the sum of
nine pounds currency for damages in the non-perform
ance of an agreement.
The Court having fully heard the parties, will delib
erate and give judgment on Saturday next.
The plaintiff demands of the defendant the sum of
nine pounds, ten shillings and fourpence, due for his pro
missory note.
The defendant being duly called inadt default.
The plaintiff having filed the said note, and the Court
having examined the same, likewise considered the de
fault of the defendant, do order and adjudge that the
plaintiff shall recover of the defendant the said sum of nine
pounds, ten shiUings and fourpence, with costs eleven shil
lings and twopence.
The plaintiff demands of the defendant the sum of ten
pounds, four shiUings and sevenpence currency, due for
his several promissory notes.

UPPER CANADA COURT RECORDS.

333

The defendant being duly called made default.
The plaintiff having filed the said notes the Court have
examined the same, and considered the default of the de
fendant the sum of ten pounds, four shiUings and seven-
pence, with costs taxed at fourteen shiUings and two
pence. The plaintiff demands of the defendant the sum of two
pounds, seven shiUings and fivepence, due for his note.
The defendant being duly called made default.
The Court"- having! examined the said notes and con
sidered the default of the defendant, do order that the
plaintiff may recover the sum of two pounds, se^sen shil
lings and fivepence, with costs twelve shillings and eight-
pence currency.

Pfeter Clark
vs.
Jno. Connor.

The plaintiff demands of the defendant the sum of
eight pounds, four shillings and twopence currency, for
amount of account. .
On motion of the plaintiff the Court do order that this
cause may be tried on Saturday, the tenth day of Septem
ber next.

Peter Clark
vs,
John 'Trompour.

The plaintiff demands of the defendant the sum of one
pound, fifteen shillings and sixpence currency, due for
amount of account.
The defendant does not appear. On motion of the
plaintiff the Court do order that this cause may be tried
on Saturday, the tenth day of September next.

Peter Clark
vs.
.Simon J. Coles.

The plaintiff demands of the defendant the sum of one
pound, s'ix shillings and fourpence, due for account.
The defendant does not appear.
On motion of the plaintiff the Court do order that this
cause may be tr-ed on the lOth September next.
Adjourned until Saturday next.

Peter Clark
vs.
Joseph Carnahan.

SATURDAY, 3rd SEPTEMBER, 1791.
The Court met pursuant to adjournment.
. Present: Richard Cartwright, Jun., and Neil McLean,
•Esquires.

AU differences and claims between the parties having
been submitted to arbitration, the judgment previously
obtained by the defendant against the plaintiff is hereby
included. The Court do therefore consider that the plaintiff shall
recover of the defendant the sum of twenty-one shillings

Georgeon vs.
Muir. (Prom Saturday
last.)

334

UPPER CANADA COURT RECORDS.

and twopence for damages and costs of suit, taxed at eleven
shUlings and twopence.
Costs paid by the defendant.

Peter Clark
vs.
Richard Ferguson.

The plaintiff demands of the defendant the sum of four
pounds, five shillings and one penny currency, due for his
promissory note.
The defendant being duly called made default.
The Court having duly examined the said promissory
note filed by the plaintiff and considered the default of
the defendant, do order and adjudge that the plaintiff shall
recover of the defendant the sum of four pounds, five shil
lings and one penny for his debt, and twelve shiUings and
sixpence costs.

Thom's. Sparham
vs.
John Thorn.
(From Saturday
last.)

John Edgar
vs.
John Connor.

The Court having fully heard the parties, likewise the
evidence in this cause, do consider that the plaintiff shall
recover of the defendant the sum of one pound, fifteen
shiUings for his canoe and chain, and costs taxed at four
teen shillings and twopence.
Debt and costs paid in court.
The plaintiff demands of the defendant the sum of
five pounds, ten shillings currency, due for amount of
account. The parties having filed their several accounts, the
Court will take time to examine the same, and do order
that the parties may appear the first Saturday in the month
of October next.

Edward Hicks
vs.
John ¦Vogely.
(Prom Saturday,
20th May, last.)

Joseph Allen
va.
Michel Criderman.

Peter Clark appears for the plaintiff and filed the
award of Daniel Wright, Esq., in this cause, dated the
eleventh day of June, and prays the Court to give judg
ment. The Court having duly examined the said award do
consider that the plaintiff shaU recover of the said defen
dant the sum of one pound, seven shillings and tenpence
currency, with costs at taxed at twelve shUlings and two
pence. Adjourned until Saturday next.
SATURDAY, 10th SEPTEMBER, 1791.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., and NeU McLean,
Esquires. The plaintiff demands of the defendant the sum of
five pounds currency, due for amount of account.

UPPER CANADA COURT RECORDS.

335

The Court having heard the parties, it appears that
the defendant is indebted to the plaintiff the sum of two
pounds, eight shiUings and twopence. It is therefore con
sidered that the plaintiff shall recover of defendant the
sum of two pounds, eight shillings and twopence currency,
with) costs taxed at eleven shillings and twopence.

The plaintiff demands of the defendant the sum of
five pounds currency, due for amount of account.
The Court having heard the parties it appears that the
defendant is justly indebted to the plaintiff the sum of
one pound, six shiUings and threepence, and the defendant
acknowledges the same. It is therefore considered that
the plaintiff shall recover of the defendant the said sum
with eleven shillings and twopence costs.

Joseph Allen
vs.
Tim'y Prindle.

The plaintiff demands of the defendant the sum of ten
pounds currency," due for amount of account.
The defendant was duly called and made default.
The plaintiff made oath that he has duly served a true
copy of the original summons on the defendant.
The Court having duly examined the several exhibits
filed by the plaintiff, and the plaintiff having been duly
sworn to answer the Court relative to his demand against
the defendant, it is considered that the plaintiff shall re
cover of the defendant the sum of seven pounds, nine shil
lings for his debt, and thirteen shillings and twopence
costs.

Joseph Allen
vs.
Joseph Carnahan.

The plaintiff demands of the defendant the sum of
seven pounds, ten shillings currency, due for his promis
sory notes.
The defendant being called did not appear.
It appears by the evidence of Timothy Prindle that the
defendant could not attend, being sick.
The Court do therefore order that this cause may be
tried on Saturday, the first day of October next.

Joseph Allen
vs.
John Gurnard,

The plaintiff demands of the defendant the sum of fif
teen shiUings currency, due for detaining a bear skin, the
property of the plaintiff.
The Court having fully heard the parties, it does not
appear that the plaintiff has any cause of action against
the defendant, therefore consider that the plaintiff shall
pay costs, taxed at eleven shillings and twopence.

Michel .Conlin
vs.
Charles Ouillette.

Peter Clark appears for the defendant and informs the
Court by writing from the arbitrators in this cause, that
one of the said arbitrators is sick and not able to do any

Alex'r Simpson
vs.
William Cadman.
(From Saturday,
27th August, last.)

336

UPPER CANADA COURT RECORDS.

business, therefore prays that time may be allowed them
until Saturday, the first of October next, to give in their
award. The Court do order that time may be allowed as
prayed.

Peter Clark
vs.
John Trompour.
(From 27th
August last.)

Peter Clark
vs.
(3asper Bower.

The plaintiff appears in person and filed the defend
ant's written obligation for the sum demanded in this
declaration, likewise a copy of the notice of trial duly cer
tified, and prays that judgment may be given in this
cause. The defendant being duly called made default.
The Court having observed the several exhibits filed in
this cause do consider that the plaintiff shall recover of the
defendant the sum of eight pounds, four shillings and two
pence for his debt, and sixteen shillings costs.
The plaintiff demands of the defendant the sum of six
pounds, five shiUings due for his promissory note, bearing
date the first June last, and filed this said note.
The defendant being duly called made default.
The Court having duly examined the said note filed by
the plaintiff do consider that the plaintiff shall recover of
'the defendant the sum of six pounds, five shUlings cur
rency, due for said note, and fifteen shiUings and two
pence costs.
Adjourned until Saturday, fii'st of October next.

(Memo. — Account of fees carried to account dated
tiie 30th September.) SATURDAY, 1st OCTOBER, 1791.
The Court met pursuant to adjournment.
Present: The three Judges.

John EMgar
vs.
John Connor.
(Prom Saturday
last.)

The plaintiff appears in person. The defendant also
appears in person.
The C'ourt having fully heard the parties, it appear,^
that the defendant is indebted to the plaintiff the sum of
two pounds currency. The Court do therefore consider
that the plaintiff shall recover the same, with costs taxed
at 

James Clark, Jun.,
vs.
Amos Ainsley.

The plaintiff demands of the defendant the sum of six
pounds, seven shillings and tenpence currency, due for his
promissory note with interest, and the said note and
account was filed.
The defendant being duly called made default.

UPPER CANADA COURT RECORDS.

337

The Court having examined the said exhibits filed, do
consider that the plaintiff shall recover of. the defendant
the sum of six pounds, seven shillings and tenpence cur
rency for said note, and costs taxed at twelve shillings and
tenpence. Adjourned until Saturday next.

SATURDAY, Sth OCTOBER, 1791.

Present :
Esquires.

Richard Cartwright and Neil McLean.

The plaintiff demands of the defendant the sum of five
pounds, ten shillings, due for amount of account.
The defendant being called made default.
The plaintiff is not prepared to satisfy the Court that
the defendant is indebted to him in manner as set forth in
his declaration. It is therefore considered that this action
be dismissed, and that the plaintiff do pay costs taxed at
eleven shillings and twopence.
The Court adjourned to Saturday next.

Timothy Prindle
va
Joseph Allen,
curator to the
estate of Pat'k
Kelly, deceased.

SATURDAY, 15th OCTOBER, 1791.

The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., NeU McLean, and
Hector McLean, Esquires.
The plaintiff appears by Mr. McKay and demands of
the defendant the sum of two pounds, six shUlings and
threepence, due for his promissory note.
The defendant being duly called made default.
The Court having examined the said note filed, it is
considered that the plaintiff shall recover of the defendant
the said sum of two pounds, six shiUings and threepence
currency, with costs taxed at seventeen shillings and two
pence. The plaintiff demands of the defendant the sum of
seven pounds, five shUlings and threepence currency, due
for balance of account.
The Court having fully heard the parties, likewise the
evidence on this cause, it is considered that the plaintiff
has no ground of action against the defendant as stated in
his declaration, therefore order that the defendant be dis
missed and that the plaintiff pay costs, taxed at twelve
shillings and twopence.

.'Mex'r Clark
vs.
Jacob Carpenter.

Elijah Grooms
vs.
Peter Clark.

338

UPPER CANADA COURT RECORDS.

SATURDAY, THB 22nd OCTOBER, 1791.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. No business.
The Clerk being unwell, the Sheriff attended for him,
by permission.

James Clark
vs.
Peter Losson.

James Clark
vs.
Thomas Dempsey.

James Clark
vs.
Johann Lott.

SATURDAY, 29th OCTOBER, 1791.
Present: The Honourables R. Cartwright and Neil
McLean, Esquires.
The plaintiff demands of the defendant the sum of one
pound, eleven shillings and fivepence halfpenny, Halifax
currency, due for amount of account and interest.
James Clark, Jun., appears as attorney for the plain
tiff, the defendant being duly called does not appear, and
there being sufficient proof on oath that he hath been duly
summoned, the Court having examined the plaintiff's de
mand, do consider that he do recover the aforesaid sum of
one pound, eleven shillings and fivepence halfpenny, with
costs of suit taxed at thirteen shillings and tenpence.
The plaintiff demands of the defendant the sum of one
pound, nine shillings and fourpence halfpenny, Halifax
currency, due for amount of an account with interest
thereon calculated.
James Clarke, Jun., appears as attorney for the plain
tiff, the defendant being duly called does not appear, and
there being due proof on affidavit that the summons was
regularly served, the Court having examined the plaintiff's
demand, do consider that he do recover of the defendant
the sum of one pound, seven .shUlings and ninepence, with
costs of suit taxed at thirteen shillings and tenpence.
The plaintiff demands of the defendant the sum of one
pound, fourteen shillings and sixpence currency, due for
damages in the non-payment of wheat.
James Clarke, Jun., appears as attorney for the plain
tiff, the defendant being called, Leonard Soper appears and
files power of attorney, and says that no proceedings ought
to be had in this cause, the summons being served on a
Sunday, which, appearing by the oath of said Soper to be
in fact the case, the Court do consider that the suit be dis
missed with costs.

UPPER CANADA COURT RECORDS.

. 339

The defendant before the rising of the Court appears
and informs the Court that it was not in his power to
appear earlier, having been disappointed in crossing the
ferry; it is therefore considered that this cause be re
heard. The defendant produced against the plaintiff an
account for work to amount of one pound, eleven shiUings
and sixpence and attests thereto, and there appearing to be
nothing due to the plaintiff by the defendant it is con
sidered that the suit be dismissed with costs.

James Clarke
vs.
Peter Ijawson.

The plaintiff demands of the defendant the sum of
one pound, eighteen shiUings and sixpence currency, due
for balance of account and interest.
James Clarke, Jun., appears on behalf of the plaintiff,
the defendant appears in person, and says that he received
440 lbs. flour as stated in the account, but that this was
given him in payment of an order of Robert Clarke, Esq.,
for two pounds, fifteen shillings, which order expressed
that said sum should be paid in flour, and that he is not
indebted to the plaintiff ; and the plaintiff not having any
proof to sustain his demand, it is considered that this suit
be dismissed.
The Court adjourned till Saturday next.

James Clarke
vs.
Leonard Soper.

SATURDAY, THE Sth NOVEMBER, 1791.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.
No business.
The Court adjourn till Saturday next.

SATURDAY, 12th NOVEMBER, 1791.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. No business.
Adjourned to Saturday next.
SATURDAY, 19th NOVEMBER, 1791.
Present: Richard Cartwright, Jun., and NeU McLean,
Esquires.

No business.
Adjourned to Saturday next.

340

UPPER CANADA COURT RECORDS.

Richard
Cartwright vs.
•¦yrchibald
Thomson and
.John Ferguson.

Richard Cart
wright, Jun.,
vs.
Archibald
Thomsonand John
Ferguson. (Prom last
adjournment.)

SATURDAY, 26th NOVEMBER, 1791.
Present: The Honourable Richard Cartwright, Jun.,.

Esq.

No business.
Adjourned to Saturday next.
SATURDAY, 3rd DECEMBER, 1791. j
Present: Richard Cartwright, Jun., Esq.
No business.
Adjourned to Saturday next.
SATURDAY, 10th DECEMBER, 1791.
Present: The Honourable Richard Cartwright, .Tun.,.
Esq. No business.
Adjourned to Saturday next.
SATURDAY. THE 17th DECEMBER, 1791.
Present: The Honourable Hector McLean, Esq.
The plaintiff complains of the defendant for taking
away a cupboard or beaufet, from a dwelling-house, his
property, and of which the said Archibald Thompson was
tenant, without the knowledge or permission of him, the
said plaintiff; whereby he hath .sustained damage to the
value of ten pounds currency.
On motion of the defendant it is ordered that this cause
be tried on Saturday next, and thai the parties shall then
appear in this court.
Adjourned to Saturday next, the 24th inst.
SATURDAY, 24th DECEMBER, 1791.
Present: The Honourable Hector McLean, Esq.
The plaintiff appears in person. Archibald Thomson
also appears for himself and John Ferguson and filed war
rant of attorney.
The parties having this day been fully heard in this
cause, it is considered that the plaintiff do recover of the
defendants the sum of ten pounds currency for his dam-

UPPER CANADA COURT RECORDS.

341

ages, and cost of suit taxed at thirteen shillings and two
pence. Adjourned to Saturday, 21st January, 1792.
DISTRICT OF MECKLENBURG, KINGSTON.
COURT OP C. P.
SATURDAY, THE 21st JANUARY, 1792.
The Court met pursuant to adjournment.
Present: The Honourables Eichard Cartwright, Jun.,
Esq. No business.
Adjourned to Saturday bext.
SATURDAY, THE 20th JANUARY, 1792.
Present: Richard Cartwright, Jun., and Neil McTican,
Esquires. No business.

SATURDAY, 11th FEBRUARY, 1792.
Present: Richard Cartwright, Jun., and Neil McLean,
P;squires. The plaintiff demands of the defendant the sum of ten
pounds, nine shillings and eightpence currency, due for
promissory note.
Ichobad Hawley appears for the plaintiff by power of
attorney duly authenticated; the defendant being duly
called made default. The said Ic. Hawley produced
the defendanfs note payable to Alexander Schut or order,
bearing date the 26th clay of July, 1787, endorsed by the
said Sehut and Griggs. It therefore appearing to the
Court that the defendant has been duly summoned, and
they well-knowing the defendant's signature, they do
^order that the plaintiff do recover the aforesaid sum, with
costs taxed at nineteen shillings and twopence.
SATURDAY, 25th FEBRUARY, 1792.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.

Stephen Burrett
•vs.
Rich'd Ferguson.

The plaintiff appears in person and demands of the de-

Joseph Pritchard
vs,
fendant the sum of one pound currency, for damages sus- ^"rv*^"^ Louns-
tained by the plaintiff's not receiving wheat according to
agreement.

342

UPPER CANADA COURT RECORDS.

jVlexander Simpson
vs.
David Palmer.

The defendant was called and does not appear.
The plaintiff produces the defendant's note for two
bushels wheat, dated the 15th October, 1790. It is con
sidered by the Court that the plaintiff shall recover of the
defendant the sum of fifteen shUlings for his debt and with
costs taxed at one pound four shillings.
The plaintiff appears in person and demands of the
defendant the sum of eight pounds, three shiUings cur
rency, due for amount of account.
The defendant also appears in person.
The Court having fully heard the parties, likewise their
respective evidence, it appears that the defendant is justly
indebted to the plaintiff the sum of four pounds, ten shil
lings. It is therefore considered that the plaintiff shall
recover of the .defendant the said sum of four pounds, ten
shillings for his debt, with one pound three shillings and
twopence costs.
Adjourned to Saturday next.

John Armstrong
vs.
John Mabery.

Solomon Ball
vs.
John Howard, .Jun.

SATURDAY, THE 3rd MARCH, 1792.
Present: Richard Cartwright and NeU McLean,
Esquires. John Connor, of Marysburg, yeoman, having filed a
complaint against the Clerk of this court for overcharges
of fees, and the judges having duly inquired into the same,
are of opinion that the said complaint is groundless.
SATURDAY, THE 10th OF MARCH, 1792.
Present: The Honourable Richard Cartwright, Jun.,
Esq. The plaintiff demands of the defendant the sum of five
pounds, three shUlings and eightpence currency, due for
his promissory note.
The defendant does not appear.
The plaintiff appears in person and produced a note
signed by the defendant, but having neglected to bring the
necessary proofs 
It is ordered that the action be dismissed with costs,
taxed at ten shUlings and twopence.
The plaintiff appears in person and demands of the de
fendant the sum of three pounds, seven shiUings currency.
The defendant being called does not appear.

UPPER CANADA COURT RECORDS.

343

Upon examining the summons issued in this cause it
appears that the same is not signed by any of the judges,
it is considered that no proceedings can be had thereon,
the Court therefore order the suit to be dismissed with
costs. Adjourned until Saturday the 7th of April next.
SATURDAY, THE 7th DAY OF APRIL, 1792.

The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.
The plaintiff appears in person and filed award of
Nicholas Hagerman and Paul Tompson, arbitrators,
mutually chosen by the parties' and appointed by the Court
to determine this cause, and the said plaintiff prays that
the Court will give judgment thereon.
It is ordered by the Court that the defendant may
appear in this court on Saturday next, and show cause, if
any he hath, why judgment should not be given on the said
award.

Timothy Prindle
vs.
Joseph Allen,
curator to the
estate of Pat'k
Kelly, deceased.

The plaintiff appears in person and demands of the de
fendant the sum of two pounds, ten shillings, due for hay,
sold and delivered him at different times.
The defendant was duly called and does not appear.
On motion of the Court it is ordered that this cause
may be tried on Saturday, the twenty-first day of AprU
inst. Adjourned to Saturday next.
SATURDAY, THE 14th DAY OF APRIL, 1792.

Jacob Dimond
vs.
Thomas Richard
son.

The Court met.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.
The plaintiff appears in person and filed copy of notice
served on the defendant.
The defendant also appears in person and saith that he
has no money or property in his hands belonging to the
said estate wherewith to satisfy the said award, and ex
hibits several accounts to prove it.
The Court having examined the several exhibits pro
duced by the defendant, it appears that the said defendant
has sold three hundred acres of land, of which there is

Timothy Prindle
vs.
Joseph Allen,
curator to the
estate of Pat'K
Kelly. (From Saturday
last.)

344

UPPER CANADA COUET EECORDS.

about fifteen or twenty acres improved, for the sum of
twelve pounds, seven shUlings and sixpence, and that the
defendant was the purchaser, the Court do not-wnsider
that the sale of the said land was regular or legal, and that
the said sum is not near the real value, and are of opinion
that the defendant has sufficient property in his hands to
satisfy the said award. They do therefore order and ad
judge that the plaintiff shall recoT©: of the defendant the
sum of three pounds, nineteen shiUings and ninepence for
the said award, together with one pound, fifteen shUlings
costs.

liainabas Day
vs.
Solomon Orser.

The plaintiff appears in person and demands of the
defendant the sum of one pound, seven shillings and two
pence, due for amount of account.
The Court having fully heard the parties, it is con
sidered that the plaintiff shall recover of the defendant
the sum of nine shillings and eightpence for his debt, and
twelve shiUings and tenpence costs.

Amos Ainley
vs.
Archibald Faii-fleld,

The plaintiff' appears in person and demands of the
defendant the sum of six pounds, five shillings and ten-
pence currency, due for amount of account.
By consent of parties it is ordered that the matter in
dispute shall be submitted to the determination of James
Eobins and Joseph Forsyth, arbitrators between the said
parties, and their award may be ready to be delivered in
writing in fourteen days hence.
Adjourned to Saturday next.

SATUEDAY, THE 21st APEIL, 1792.

Robert AskcTi
vs.
John Edgar.

The Court met.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. No business.
Adjourned to Saturday next.
SATURDAY, THE 28th APRIL, 1792.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.
The plaintiff appears in person and demands of the
defendant the sum of two pounds currency, due for
amount of account.
By consent of parties it is ordered that this action
may be tried on Saturday next.

UPPER CANADA COURT RECORDS.

345

The plaintiff appears in person and informs the Court
that whereas he did obtain an order of this Court to have
this action determined by Daniel Wright, Esq., by consent
of parties, and the said D. Wright being unwell the
matter yet remains yet undetermined, the plaintiff there
fore prays that the d if endant may be ordered to appear in
this Court on Saturday, the 12th day of May next, and
show cause, if any he hath, why this cause should not be
further proceeded in according to law.
It is ordered that the defendant may appear as prayed.

Hen'y Smith
vs.
Joseph Allen.

The plaintiff appears and says that the persons named
as arbitrators in this cause have declined proceeding
thereon, therefore prays the Court to give judgment.
Part of the plaintiff's claim being for seducing or
enticing away his dog, the Court consider as impreperly
classed with matters of account, and therefore take no
cognizance of the matter in the present suit ; another item
of the plaintiff's demand is for damage in abusing his
kitchen by putting horses therein, though he was aUowed
only the use of it for cooking, etc., but as the plaintiff
brings no proof of any actual damage, the Court cannot
presume any, and as striking out of this article brings the
plaintiff's demand below what he acknowledges himself to
be the Juet demand of the defendant against him, the
Court therefore dismiss the suit.

.\mos Ainsley
vs.
Arch'd Fairfield,
(Prom the 14th
inst.)

The plaintiff appears in person and demands of the
defendant the. sum of one pound, twelve shillings and
sevenpence halfpenny currency, due for amount of account.
The defendant was called and does not appear.
The plaintiff having filed his account and duly attested
the same it is considered that tlie plaintiff shall recover
of the defendant the sum of one pound, twelve shiUings and
sevenpence halfpenny for his debt, and seventeen .shil
lings and twopence costs.
Adjourned to Saturday next.

Christopher
Georgen vs.
Guysbact Sharp.

SATURDAY, THE Sth MAY, 1792.
The Court met pursuant to adjournment.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McTjean, Esquires.

No business.
Adjourned until Saturday next.

346

UPPER CANADA COUET RECORDS.

Edward Hicks
vs.
William Crawford,
curator of the
estate of W. R.
Crawford.

Joseph Forsyth
vs.
Moses Simmon.

SATUEDAY, 12th MAY, 1792.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. The plaintiff appears in person and demands of the
defendant the sum of one pound, three shillings and four-
pence currency for amount of account.
The defendant was called and made default.
On motion of the plaintiff it is ordered that this cause
may be tried on Saturday, the twenty-sixth instant.
The plaintiff appears in person and demands of the
defendant the sum of six pounds, six shiUings and two
pence halfpenny, due for amount of account.
The defendant was called and does not appear.
The plaintiff filed and attested his account against the
defendant for the said sum of six pounds, six shillings
and twopence halfpenny currency, it is therefore con
sidered that the plaintiff shall recover of the defendant the
said sum, with costs taxed at nineteen shillings and two
pence.

Peter Clark
vs.
David Hogan.

The plaintiff demands of the defendant the sum of
eighteen shillings and elevenpence currency, due for his
order on Joseph AUen.
The Court having fully heard the parties, it appears
that the said order on Joseph Allen is payable to John
Connor and not transferable, it is therefore considered
that the plaintiff hath no grounds for action against the
defendant. Adjourned until Saturday next.

Robert Kerr
vs.
Henry Younge,
Jun.

SATURDAY, 19th MAY, 1792.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. John Ferguson appears for the plaintiff and filed a
general power of attorney from this plaintiff, and de
mands of the defendant the sum . of three pounds, one
shilling and threepence, due for his promissory note.
The defendant was called and made default.
The plaintiff filed the defendant's note for the sum
aforesaid, and prays time until next Saturday to procure.
evidence to prove the authenticity of said note.

UPPER CANADA COURT EECORDS.

347

John Ferguson appears for the plaintiff and demands
of the said defendant the sum of one pound, four shillings
and ninepence currency, due for his promissory note.
The defendant was called and made default.
The plaintiff produced and filed the said note, and prays
time untu next Saturday to prove the authenticity of the
same. Ordered that the plaintiff may be allowed time as
prayed.

Robert Kerr
vs.
Andrew Rickley.

The plaintiff appears in person and demands of the
defendant, the sum of nine shiUings and ninepence cur
rency, due for amount of account.
The defendant was called and made default.
The plaintiff produces of the said account and proof
x)f the same being due, it is therefore considered that the
plaintiff shall recover of the defendant the sum of nine
shiUings and ninepence currency for his said account, and
twelve shillings and twopence costs.
Adjourned to Saturday next.

John Dubury
vs.
William Bone.

SATURDAY, 26th MAY, 1792.
Present: The Honourables Richard Cartwright, Jun.,
and NeU McLean, Esquires.
The plaintiff appears and prays that this cause may be Ker?^^
ordered for trial on Saturday, the ninth day of June Young.'
next. Ordered accordingly.
John Ferguson appears for the plaintiff and demands Ro^^n Kerr, Esq.,
of the defendant the sum of two pounds currency, due for Daniel McMuiian.
this order on Messrs. Macaulay and Markland, unpaid.
John Connor appears for the defendant and prays that
the cause may be ordered for trial on Saturday next.
It is ordered accordingly.

The plaintiff appears in person.
The defendant also appears in person, pursuant to rule
of Court of Saturday, the twelfth instant.
The Court having fully heard the parties, likewise the
evidence for the plaintiff, and it does not appear that the
defendant is indebted to the plaintiff, therefore order that
this cause shall be dismissed with costs.
Adjourned to Saturday next.

Edward Hicks
vs.
William Crawford,
curator to the
estate of
W. R. Crawford.
(From the 12th
inst.)

348

UPPER CANADA COURT RECORDS.

SATURDAY, THE 2nd JUNE, 1793.
Present: The Honourables Richard Cartwright, Jun.,
and Neil McLean, Esquires.
No business.
Adjourned tiU Saturday next.
SATUEDAY, THE 9th DAY OP ^UNE, 1792.

Robert Kerr
vs.
Daniel McMullan.
(Pi-om the 26th
May.)

Solomon Orser
vs.
Haj'nabas Ttay.

John Kinlaid
vs.
Samuel Thomson.

The Court met pursuant to adjournment.
Present: The Honourables Eichard Cartwright, Jun.,
aud Neil McLean, Esquires.
The plaintiff appears and filed the defendant's order for
the sum demanded in his declaration. \
The defendant was called and does not appear.
The Court do therefore consider that the plaintiff shall
recover of the defendant the sum of two pounds, with costs
taxed at eleven .shillings and twopence.
The plaintiff' appears in person aud demands of the
defendant the sum of nineteen shillings and sixpence due
for amount of account.
The defendant also appears in person and saith that
he is not indebted to the plaintiff.
It appears to the Court that the plaintiff hath not any
ground of action, it is therefore considered that the de
fendant be dismissed.
Thc plaintiff appears in person and demands of the
defendant the sum of ten pounds, two shUlings and six
pence currency, due for amount of account.
Eichard Cartwright, Sen., appears for the defendant
and produces his warrant of attorney.
The Court having fully heard the parties, lUcewise ex
amined James Latham and Thomas Sparham, Esquires,
surgeons, upon oath, respecting the value of medicine
charged in the account produced by the plaintiff, and the
Court not being prepared to give their judgment will take
time to deliberate.
Adjourned until Saturday next.
SATURDAY, THE 16th JUNE, 1792.
The Court met.
Present: The Honourables Richard Cai-twright, Jun.,
and Neil McLean, Esquires.

UPPER CANADA COURT RECORDS.

349

The plaintiff demands of the defendant the sum of ten
pounds, Halifax currency, or to return to him, the said
plaintiff, a bull he, the defendant, unjustly- detains from
hhn. The Court having fully heard the parties, likewise their
respective evidence, it appears that the plaintiff hath no
just grounds of action against the defendant, it is there
fore considered that the defendant be dismissed.
William Schockensee was sworn in the above action,
and declared that the defendant told him that the
Honourable Judge Cartwright had advised him to detain
the said buU untU he was fully paid the damages sustained.
The Honourable Judge declined giving any opinion in this
cause.

James Clark, Sen.,
late of Kingston,
by his attorney,
Jas. Clark, Jun.,
plaintiff, vs.
Mich'l Grass,
defen<iant.

The Court having considered the argument of the
parties, likewise the evidence in this cause.
It is considered, that the plaintiff shaU recover of the
defendant the sum of four pounds, with costs.

John Kinlaid
vs.
Sam'l Thomson.
(From last
Saturday.)

The plaintiff demands of the defendant the sum of
five pounds currency, due for damages sustained for a
breach of agreement.
The Court having fully heard the parties, it does not
appear that the plaintiff hath sustained any damage as set
forth in his declaration. It is therefore considered that
the defendant be dismissed.
Adjourned till Saturday next.
SATURDAY, THE 23rd JUNE, 1792.

John Connor
VS.
John MacBean.

The Court met.
Present: The Honourables Richard Cartwright, Jun.,
and Neil Mcljean, Esquires.
The plaintiff appears in person and demands of the
defendant the sum of eight pounds currency, five pounds
for a breach of agreement, and three pounds for damages
and evidence charge.
The defendant appears in person and prays time may
be allowed to produce his evidence.
By consent of parties it is ordered that the matter in
dispute shaU be heard and determined by WUliam Harri
son, Jun., and Donald Mcintosh, and that their award
may be ready to be delivered in writing in fourteen days
from this date, and provided the said arbitrators shaU not
agree upon before that time the matter shaU then be de-
tprinined by an umpire chosen by the said arbitrators.
.Adjourned to Saturday next.

John MacBean
vs.
John Connor.

350

UPPER CANADA COURT EECOEDS.

SATURDAY, THE 25th AUGUST, 1792.

Thomas Dorland
vs.
James Bradshaw

The Court met.
Present: The Honourables Neil McLean and Hector
McLean, Esquires.
No business.
The Court adjourned until Saturday next.
SATURDAY, 1st SEPTEMBER, 1792.
The Court met pursuant to adjournment.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. No business.
The Court adjourned tUl Saturday, the 15th instant.
SATURDAY, THB 15th SEPTEMBER, 1792.
The Court met.
Present : The Honourable Neil McLean, Esq.
The plaintiff appears in person and demands of the
defendant the sum of eight pounds, ten shillings, with in
terest, for sundry merchandises delivered him.
The defendant made default.
On motion of the plaintiff it is ordered that this cause
be tried on the first Saturday in the month of October
next.

Thomas Dorland
vs.
Simon Snyder.

.\llen Patterson
vs.
Jacob Sypis.

The plaintiff appears in person and demands of the
defendant the sum of seven pounds, eleven , shiUings and
one penny halfpenny, due to the plaintiff, for so much
awarded him by the arbitration of Hazleton Spencer and
Peter Vanalstine, arbitrators mutually chosen by the said
parties. The defendant being duly called made default.
The plaintiff having produced the said award, duly
subscribed by the arbitrators aforesaid, and no objections
being made to the legality thereof, it is considered that the
plaintiff shall recover of the defendant the sum of seven
pounds, eleven shillings and one penny halfpenny for said
award, together with costs of suit taxed at 
The plaintiff appears by Thomas Markland, his at
torney, and demands of the defendant the sum of two
pounds currency, due for merchandise.

UPPER CANADA COURT RECORDS.

351

The plaintiff, not having his evidence present, prays to
withdraw the suit, which is disniissed accordingly, with
costs taxed at eleven shillings and twopence.
Adjourned until Saturday, the sixth day of October
next. SATURDAY, 6th OCTOBER, 1792.
The Court met pursuant to adjournment.
Present : The Honourable Neil McLean, Esq.
No business.
Adjourned until Saturday next.
SATURDAY, 13th OCTOBER, 1792.

The Court met.
Present: The Honourable Neil McLean, Esquire.
No business.
Adjourned until Saturday next, the twentieth instant.
SATURDAY, 20th OCTOBER, 1792.
Present: Richard Cartwright, Jun., and Neil McLean,
Esquires. The plaintiff appears in person and demands of the Barn^atas Day
defendant the sum of thirteen shiUings and sixpence, due Paul Trompour.
for a book account.
On petition from the defendant, it is ordered that this
cause may be tried on Saturday, the tenth of November
next. The plaintiff appears in' person and demands of the Barnabas Day
defendant the sum of sixteen shUlings and fourpence, due Joseph Alien.
for amount of account.
The defendant being duly called made default.
The plaintiff having attested the said account, it is
considered that he shall recover of the defendant the sum
of sixteen shillings and fourpence for his debt, and one
pound, five shillings and twopence for costs.
Adjourned until Saturday next.
SATURDAY, 27th OCTOBER, 1792.
The Court met.
Present: The Honourables Richard Cartwright, Jun.,
and NeU McLean, Esquires.

UPPER CANADA COURT RECORDS.

Barnabas Day
va.
Joseph Conklin.

The plaintiff appears in person and demands of the
defendant the sum of one pound, three shiUings and six
pence for a book account.
On petition from the defe*ndant, it is ordered that this
cause may be tried on Saturday^ the 10th November next.

Titus Simons
vs.
John Howard.

The plaintiff' appears in person and demands of the
defendant the sum of five pounds currency, due for a cer
tain written obligation unpaid.
The defendant being duly called made default.
The plaintiff produced an order drawn by the defendant
on Peter Vanalstine, but there being no proof to the signa
ture of the said order, it is considered that the suit be
dismissed with costs, taxed at sixteen shiUings and two
pence. The Court adjourned until Saturday, the tenth of
November.

Barnabas Day
vs.
Paul Trompour.
(From 20th
October.)

Barnabas Day
vs.
Joseph Conklin.
(From 27th
October.)

SATURDAY, 10th NOVEMBER, 1792.
The plaintiff appears in person.
The defendant also appears in person.
The Court having fully heard the parties, it is con
sidered that the plaintiff shall recover of the defendant the
sum of thirteen shillings and sixpence, with costs taxed
at twenty-one shillings and twopence.
The plaintiff appears in person, and the defendant
being called made default.
The plaintiff having produced the defendanfs note for
the sum demanded in his declaration, it is considered that
the plaintiff shall recover of the defendant the sum of one
pound, three shillings and sixpence for said note, together
with one pound, two shillings and twopence costs.
Adjourned until Saturday next.

SATURDAY, 17th >;OVEMBEE, 1798.
The Court met.
Present: The Honourables Richard Cartwright, Jun.,
iind Neil McLean.
No business.
Adjourned until Saturday next.
SATURDAY. 24th NOVEMBER, 1798.

The Court met.
Present: Richard Cartwright, Jun.. and Neil McLean,

Esiniiros.

UPPEE CANADA COURT RECORDS. 353
No business.
Adjourned until Saturday, Sth December, next.
SATUEDAY, 14th DECEMBER, 1792.
Present: R. Cartwright, Jun., and Neil McLean,
Esquires, No business.
Adjourned to Saturday, 22nd inst.
SATURDAY, 22nd DECEMBER, 1792.
The Court met pursuant to adjournment.
Present: The Honourables R. Cartwright, Jun., and
Neil McLean, Esquires.
The plaintiff appears in person and demands of the soiomon Orser
defendant the sum of eighteen shillings currency, due for Hector McLean,
nine bushels of oats, sold and delivered him. ^'^'
The plaintiff also appears in person.
The Court having fully heard the parties it appears
that the said oats were the property of Seth Stephen,
deceased, and that the said plaintiff hath no right or title
to sue for the same ; the Court therefore consider that this
action be dismissed with costs, taxed at 

DISTRICT OF LUNEBURG: COURT OF COMMON
PLEAS.
Justices' Commission of the Court of Common Pleas
for the District of Tmneburg.
Dorchester, G.
George the Third, by the grace of God, of Great
Britain, Prance and Ireland, King, Defender of the
Faith, and so forth. To our trusty and well beloved
Eichard Duncan, Edward Jessup, and Alexander
McDonell, Esquires, and to all whom these presents shall
come to or may concern. Greeting. Know ye that we
have taken into our Royal Consideration the loyalty,
integrity, and ability of you, the said Richard Duncan,
Edward Jessup, and Alexander McDonell. And of Our
special grace, certain knowledge and meer motion, have
assigned, constituted and appointed, and by these pre
sents do assign, constitute and appoint you, the said
Eichard Duncan, Our first Justice, and the said
Edward Jessup Our second Justice, and you, the said
24 A.

354 UPPER CANADA COURT RECORDS.
Alexander McDoneU, Our third Justice of Our Court of
Coromon Pleas, of and in Our District of Luneburg, in
Our Province of Quebec. Giving and by these presents
granting unto you the authorities and powers in the said
district to the offices and places of the Justice and Jus
tices of the Common Pleas of any District of Our said
Province belonging, and to proceed in the exercise
thereof at such times^ places, and terms, and in such
course and manner as hath been heretofore directed for
the Districts of Quebec and Montreal, or either of them,
and as may be found necessary or most conducive to the
ease and convenience of »the inhabitants of the said Dis
trict of Luneburg, and according to the laws of our said
Province. To have, hold, exercise and enjoy the said
several offices of Justices of Our said Court of Common
Pleas to you respectively, forf and during Our pleasure,
and your residence, within Our said District of Lune
burg respectively; together with all and singular the
rights, profits, privileges, and emoluments, which unto
the office respectively belong and appertain, or of right
ought to belong and appertain. In Testimony whereof,
We have caused these Our Letters to be made patent and
the Great Seal of Our said Province of Quebec to be
thereunto affixed, and the same to be recorded in one of
the Books of Patents, in our Registers Office of Enroll
ment of Our said Province remaining. Witness Our
Trusty and WeU-beloved Guy Lord Dorchester, Our
Captain General and Governor in Chief of Our said
Province, at our Castle of Saint Lewis, in Our City of
Quebec, this twenty-fourth day of July, in the year of Our
Lord, one thousand seven hundred and eighty-eight, and of
Our Reign the twenty-eighth. (Signed) D. G.
Geo. Pownall, Sec.
Dorchester, G.
George the Third, by the Grace of God, of Great
Britain, France and Ireland, King, Defender of the
Faith, and so forth. To Jacob Farrand, Esquire, and
to all whom these Our present Letters shall come to or
may concern. Greeting. Know ye, that reposing trust
and confidence in the loyalty, integrity and abUity of you,
the said Jacob Farrand, of Our special grace, certain
knowledge and meer motion, We have assigned, consti
tuted, and appointed, and by these presents do assign,
constitute and appoint you, the said Jacob Farrand, to
be Clerk of Our Court of Common Pleas for the District
of Luneburg. And also Clerk of the Peace and of Our
Sessions of the Peace for the said District of Luneburg,

UPPER CANADA COURT RECORDS. 355
in Our Province of Quebec. To have, hold, exercise and
enjoy the said offices and places of Clerk of Our said
Court of Common Pleas and Clerk of the Peace, and of
Our Sessions of the Peace for and during Our pleasure
and your residence within Our said District; together
with all and singular the rights, profits, privileges, and
emoluments, which unto the said offices and places, or
either of them, belong and appertain, or of right ought
to belong and appertain. In testimony whereof We have
caused these Our Letters to be made patent, and the Great
Seal of Our said Province of Quebec to be thereunto
affixed, and the same to be recorded in one of the Books
of Patents in Our Registers Office of Enrollments in
Cur said Province remaining. Witness Our Trusty and
WeU-beloved Guy Lord Dorchester, Our Captain General
and Governor in Chief of Our said Province, at Our
CasUe of St. Lewis, in Our City of Quebec, this twenty-
fourth day of July, in the year of our Lord one thousand
seven hundred and eighty-eight, and of Our Reign the
twenty-eighth. (Signed) D.G.
Geo. PownaU, Sec.

WEDNESDAY, 7th JANUARY, 1789.
Court of Common Pleas, for the District of Lune
burg, at CornwaU, 7th January, 1789.
Present: The Honourable Richard Duncan and
Alexander McDonell, Esquires.
mi ni -jff i T xi_ -J. Donald McLeod
The Sheriff returned the writ. vs.
The plaintiff appears and filed declaration. Kenneth McDonell
The defendant a,ppears and says in his plea, that he
did say that the plaintiff had been the cause and means
of the death of fifty of His Majesty's loyal subjects, but
denies that he said it was during the plaintiff's residence
in thc City of Albany.
Katherine Mcgilvray, of Charlottenburg, being duly
sworn to give evidence in this cause, saith that she knew
- the plaintiff in Albany some time after the peace in the
year eighty-three, and that he then bore the character of
a rebell and would not be trusted by the friends of the
Government, and she heard some say that he had de
serted from a scout of the British troops, and gave the
counter sign to the enemy, in consequence of which they
were betrayed.

356 UPPER CANADA COURT RECORDS.
The plaintiff asked the deponent what reason she had
for giving him so bad a character.
Answer. — From her having heard him say that he
wished that Great Britain might not succeed in reducing
the rebels, and that she might depend upon never seeing
her friends that were imbarked in the cause of Govern
ment. Question by the Plaintiff: Were there any persons
present at the above conversation?
Answer. — There were, but they are not in this
country. Question. — ^Whether she knew any person who he had
betrayed, distressed, or caused to be put in prison?
Answer. — That she heard of none except the scout
already mentioned. (Signed on the minutes.) Katherine M'Gilvray.
Lieut. Neil McLean, being duly sworn to give evi
dence in this cause, saith that some time in August or
July last the inhabitants of the fourth, fifth, and sixth
concessions of the Township of Cornwall were warned to
assemble in order to enrol themselves in the- Militia, that
when assembled several objected to be enrolled. After
they were dismissed the plaintiff, Donald McLeod, came
to the house of Captain Ranald McDonell, where the de
fendant, Kenneth McDonell, and some other people
were then sitting. He (the deponent) asked the plaintiff
what objection he had to be enrolled. He replied that as
the rest of the inhabitants thought proper not toi enrol
themselves he would do as they had done. The defendant
(who had enrolled himself) replied:, Why should you
sign now that never signed for your King or Country
before? The plaintiff answered that he done as much
service and suffered as much as the defendant had done;
the defendant, seemingly in passion, told him no he had
not, and that he had been the means of the death of
fifty of His Majesty's subjects by betraying them to their
enemy; that only one escaped out of that number and he
had five wounds. Some time after, the defendant, on
being summoned by the plaintiff, requested of the de
ponent to try and accommodate this matter between him
and the plaintiff, as he had no wish to bring him to
trouble, which the deponent acquainted the plaintiff of,
who seemed inclined to settle the matter, provided the
defendant would acknowledge that what he had
asserted was false, the deponent recommended to the
jilaintiff to make up with the defendant, as he would be
proved a deserter at best. He (the plaintiff) then

UPPER CANADA COURT RECORDS. 357
related the manner of his going into the States, which;
was, that he was taken at Boston along with Colonel
CampbeU, of the 71st Regt., in -which regiment he (the!
plaintiff) was a, soldier; that he was sent farther into
the interior parts of the country, where he remained for
some time, and afterwards went to Albany; the deponent
then asked whether he had ever made any attempt to join
the King's Troops, to which he answered that he had
not; but that notice was sent to him from New York by
some of his comrades to go to his regiment there and
take the benefit of the Act of Grace; which he said he
did not find convenient to do, having a family, and added
that he expected certificates of his character from several
people at Albany, (Signed on the minutes.) Neil McLean.
Alexander Cameron, of Cornwall, yeoman, being duly
sworn to give evidence in this cause, saith that he knew
the plaintiff in the year eighty-two at Albany, and
lodged two nights in his house; and that he was
cautioned by one John McDoneU and Donald McGregor
not to trust anyone.
Question by Plaintiff : Did you ever know me to be at
any publick or private meeting of the Rebels ?
Answer: No.
Question: Do you know of yourself, or have yon heard
from others that I was guilty of the charge laid against
me by the defendant?
Answer: Not untill I came to this country.
Question: Do you know me to be a deserter from the
British Troops, or that I betrayed any British subject?
Answer. — I do not know that you are a deserter, but
have heard some person say (but cannot tell who) that
you refused to be exchanged, nor do I know of your
betraying any one.
Question, by the Defendant. — Had you any acquaint
ance ¦with the plaintiff prior to your going to Albany in
the year 1781?
Answer. — No.
(Signed on the minutes.)
Peter McArther, of Charlottenburg, yeoman, being
duly sworn to give evidence in this, saith that he knew
the plaintiff for two years in Albany, and that he knew
AO harm of him, only that, he was called a disaffected

358 UPPER CANADA COURT RECORDS.

person to Government; but agrees with the other part of
Cameron evidence. (Signed on the Minutes.) Peter McArther.
John Cameron, of Cornwall, yeoman, being duly
sworn to give evidence in this cause, saith that he had
seen the plaintiff frequently in Albany, and that he did
not know of himself, or hear any things from others, to
the prejudice of the plaintiff's character.
(Signed on the Minutes.) John Cameron.
Duncan McArther, of Charlottenburg, yeoman, being
duly sworn to give evidence in this cause, saith that he
knew the plaintiff in the years 1781 and 1782, and that
he was then looked upon as a disaffected person by the
friend to Government. (Signed on the Minutes.) Duncan McArther.
The Court adjourned till to-morrow at ten o'clock in
the forenoon. THURSDAY, 8th JANUARY, 1789.
The Court met pursuant to adjournment.
Present: The same Judges.
Donald McLeod The parties being present, the Court deUver judg-
Kenneth McDonell. mcnt, viz. :
The evidence in this cause being closed, the Court
having seen the declaration, and having examined the
witnesses, and fully heard the parties respectively in
their own behalf, are of opinion from the defendant's
confession in his plea, corroborated and confirmed by the
evidence of Lieut. NeU McLean, that the defendant is
guUty of the defamation alledged against him by the
plaintiff, therefore do order and adjudge that the de
fendant do^pay to the plaintiff the sum of one shiUing for
his damages, together with costs of suit.

Court adjourned till next term,
. the Minutes
Richard Du
Alex. McDonell,

(Signed on the Minutes.)
Eichard Duncan, 1 t ^
Alex Mn¦^,r.^o^^ Wedges.

UPPER CANADA COURT RECORDS.

359

THURSDAY, 22nd JANUARY, 1789.
Court of Common Pleas, at Edwardsburg-,
Thursday, the 23nd day of January, 1789.

on

Present: The Honorable Richard Duncan and Alexr.
McDonell, Esquires.
The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant appears, and for his plea says that he
was put in possession of a lot of land (No. 6, in front
of EUzabethto^vvn), now claimed by the plaintiff in his
declaration, two years ago, by order of Captain Sher
wood, and that he has continued upon said lot and made
considerable improvement on it since that time; but that
he had not at any time a Ticket for the said lot, which
was given to him in lieu of lot No. 16, 1st Concession of
Augusta, which lot (No. 16) was dra^wn by the defendant
at the time of drawing for the lots in that township and
was given to another person in his absence.
Plaintiff repUes, that in July, 1784, he received a
warrant from Captain Sheerwood for lot No. 6, in front
in Elizabethtown, on which he made some improvement,
and having gone to the States to see his friend and rela
tion, where he found his father involved in debt, and he
staid to assist him for the space of four years for the
purpose of extricating him from his difficulties, and when
he returned to this country he found the defendant in
possession of his said lot of land, who claimed it by virtue
of authority of Captain Sheerwood, and further that he
(the plaintiff) has disposed of his lot, and is under the
penalty of two hundred pounds to deliver a good and
sufficient deed to the purchaser for the same.
Captain Sheerwood, being duly sworn to give evidence
in this cause, saith that about the time specified by the
plaintiff in his replication he did give a warrant to the
plaintiff for one half of the lot now in question, which is
now in possession of the defendant, and that the west
half of the said lot is possessed by one Donald
Macachrin, and that the plaintiff and defendant are the
original joint proprietors of the said lot (No. 6). Cap
tain Sheerwood further says that he also gave the plaintiff
the lot in the second concession adjoining in the rear to
the lot in question, but from the plaintiff's long absence

Conradt Peterson
vs.
Jonathan Wick-
wlre.

360

UPPER CANADA COURT RECORDS.

Ashel ¦Ward
vs.
Heacaint Ohenler.

he had forgot it, and has since given it to one — Ephriam
Airs. (Signed on the Minutes.) Justus Sheerwood.
The Court are of opinion that from the peculiar situ
ation of the parties in this cause, and to prevent the
establishing a precedent in causes of this nature that
judgment should be suspended, and dp therefore suspend
their judgment till the opinion of the Chief Justice can
be kno^wn. The Sheriff returned the writ.
The plaintiff appears and filed declaration.
Doctor Solomon Jones appears for the defendant, and
does certify to the Court that the defendant is not able
to appear, being confined by sickness, and prays that this
trial may be put off till next Term.
The Court grants the above prayer and order that the
parties do appear before this Court on the thirtieth day
of March next.

Court adjourned till to-morrow, 9
forenoon.

o'clock in the

Joachim Denault
vs.
John Mclna,ulty
and Mich'l Conroy.

FRIDAY, 23rd JANUARY, 1789.
Court met pursuant to adjournment.
Present: Same Judges.
The Sheriff returned the writ.
The plaintiff appears and says for his declaration
that he was at the Bay of Quinty on the 22nd of Novem
ber, 1789, where he found Mr. Long, who said he was
in a poor situation, and not able to pay a debt which he
owed to the plaintiff, therefore desired the plaintiff to
pay the two men at Toniata any legal debts that they
(the defendants) demanded for their time while they
were in his (Mr. Long's) service (which accordingly
was paid, by the hands of Mr. Ephriam Jones, to the
amount of twenty-five dollars), and what remained of
the effects belonging to Mr. Long, he desired the plaintiff
to take in payment for the debt he owed him, which
amounted to thirtyj pounds currency, The plaintiff de
clares that the articles, which should have been delivered
to him by virtue of an order from Mr. John Long, and
which would have satisfied the debt, were either kept.

UPPER CANADA COURT EECORDS. 361
sold, embezzled, or squandered away by the defendants.
Therefore the plaintiff prays that this trial may come on
immediately, and the defendants be condemned to pay
the above mehtioned sum of thirty pounds, together with
costs of suit.
The defendants appear and say they are not
guilty any thing as laici in the plaintiff's declaration, and
pray the truth to be inquired, and therefore consent that
\this trial do come on immediately.
Nicholas Kilmore, of Elizabeth Town, Yr-oman, being
duly sworn to give evidence in this cause, saith that he
saw in the possession of the defendants half a box of
window glass, many of which were broken, twenty or
thirty pairs of hinges, a small bag of vermillion paint,
one brush sythe, a common bedstead, one small trunk
ahnost new, two horse bells, and a quantity of shingles,
some of which the defendants sold to a Mr. Phillips, of
Augusta, and some to one Leonardts, of Elizabethto^wn ;
also two spades and one shovel ; and a quantity of squared
house timber, which lay at Mr. Long's place about three
months ago; he likewise saw in the defendants' posses
sion a small box of shot containing about twenty pounds,
a small keg containing about three pounds of gunpowder,
three horse whips, and two sash window frames with
glass in them; most of the above mentioned articles were
carried by the deponent from Mr. Long's place
to the house of one Armstrong, by request of
the defendants, and that he believes there were a
number of other articles brought there at the
same time, which he cannot specify, and further says
that he since saw several of the articles before mentioned
at the house of one of the defendants (John Mclnaltie) .
(Signed on the Minutes.) his
Nicholas X Kilmore.
mark.
Ephriam Jones, of Augusta, Esquire, being duly sworn
to give evidence in this cause saith, that the plaintiff
intrusted him to settle the affairs of Mr. Long with the
defendants, who agreed to have this matter settled by an
arbitration; which arbitration accordingly awarded that
the defendants should receive from the plaintiff the sum
of twenty-five doUars, being in full the amount of their
wages. (Signed on the Minutes.) Ephriam Jones.
25 A.

362 UPPER CANADA COURT RECORDS.

The defendants produce a ¦ letter from Mr. Long,
viz. : —
John Mclnaltie and Michael Conroy.
I hereby authorise and give you full power to keep
possession of my house and land, with all other edifices
and everything else now on the premises, and to prevent
any, one to claim or enter upon without my writting order
bearing date after this time, and this shall be your full
security for every part of your conduct in this business.
Two guns, 14,000 shingles, 70 logs, timber squared.
(Signed) John Long.
Dated 25th February, 1787.
The plaintiff filed an order from Mr. Long, to the
defendants, for every thing of his (Mr. Long's) then
remaining at Toniata — dated 22nd November, 1786.
The Court having heard the declaration o^ the
plaintiff, and having examined the evidence and fully
heard each of the parties on their own behalf and also
seen the exhibits produced in this cause, are of opinion
that things were embezzled and made away with by the
defendants, which appears by the evidence of Nicholas
Kilmire, therefore do order and adjudge that the articles
so embezzled and made away with, shall be paid for by
the defendants, agreeable to the appraisement of two
appraisers, legaUy to be appointed, together with costs of
the suit.
The appraisers appointed by the Court to appraise
the articles embezzled and made away with by the de
fendants in the cause of Denault against John
Mclnaltie and Michael Conroy, were Captain WiUiam
Fraser, of Edwardsburg, and WUliam Bewell, of
Elizabethtown, Esquire, who accordingly value the
articles so embezzled and made away with by the de
fendants, at the sum of fifteen pounds, thirteen shillings
and ninepence currency, of which sum the Court do order
and adjudge John Mclnaltie to pay to the plaintiff, on
account of his having taken the article of shingles
entirely to himself, the sum of eleven pounds, six shil
lings and tenpence halfpenny, and Michael Conroy to
pay td the plaintiff the sum of four pounds, six shillings
and tenpence halfpenny, making together the whole sum
fifteen pounds, thirteen shillings, and ninepence
currency.

Francois Lorimier The Sheriff returned the writ.

vs.

James 'Jordan. The plaintiff appears and for his declaration says
that in the month of June now last past he agreed with
the defendant to undertake and make a good and suffi-

UPPER CANADA COURT RECORDS. 363

cient set of running geers, after the English manner, for
a saw mill, without stop or delay from the time of the
agreement, for which work the defendant was not to
receive payment till it should be finished. The defendant
worked thirty days, for which the plaintiff paid him in
part, though contrary to agreement; the defendant then
left his work, and though he was repeatedly requested to
complete his engagement, he refused to return- and fulfil
his agreement, and in consequence of such the defendant's
neglect, the plaintiff says he has sustained damages to the
amount of seventy pounds currency, including the wages
partly paid on account of the thirty days work, which
was paid contrary to agreement. Wherefore the plaintiff
prays that the defendant may be condemned to pay the
said damages, amounting to seventy pounds, with costs
of suit; and that this cause may be tried immediately.
The defendant appears and denies that he is in any
thing guilty as stated in the plaintiff's declaration, and
prays that the truth hereof may be inquired.
The parties mutually agreed to submit their cause
to the verdict of jury. The Court therefore order that
a jury be summoned to try this cause, and that a venire
do issue returnable to-morrow at 10 o'clock in the
forenoon. The Court adjourned till to-morrow at 9 o'clock in
the forenoon. SATURDAY, 24th JANUARY, 1789.
The Court met pursuant to adjournment.
Present: The same Judges.
 „ , . 1 1 Francois Lorimier
The Sheriff returned venire and pannel. vs.

Jame« Jordan.

The jury impannelled and sworn to try the issue
joined between the parties, plaintiff and defendant,

were : —

Alexr. Humphrys. Thos. Fraser.
WiUiam BeweU. Peter Drummond.
John Dulmage. Joachim Denault.
Dayid Hunter. WiUiam Lahigh.
James Humphrys. Thos. Bold.
WiUiam Fraser. Joseph McNish.
The parties in this cause, for want of some principal
evidence, have with mutual consent and the approbation
of the Court withdrawn their suit, and submitted the
decision thereof to the arbitrament of Daniel Jones and

364

UPPER CANADA COURT RECORDS.

Joachim Denault
vs.
. -William Lahigh.

Justus Sherwood, Esquire, both of Augusta, on the part
of the plaintiff, and John Bro-wn, of Augusta, mUlwright,
and Alexander Humphrys, of Augusta, millwright, on
the part of the defendant, and if they should be equaUy
divided upon the case they are to call in an umpire, whose
award shall be final, and the arbitrators to meet upon this
business on the second Tuesday in February next, and
to return their award to this Court on the thirtieth day
of March following, and the Court order that this rule
be served upon the arbitrators that they may meet
accordingly. The Sheriff returned the writ.
The plaintiff appears and declares that the defendant
is justly indebted to him, by his promissory note of hand
passed in the month of May, 1786, in the sum of ten
pounds, eighteen shiUings and fourpence currency, which
said sum still remains unpaid and unsatisfied. Therefore
thd plaintiff prays that judgment may be given against
the defendant for the said sum of ten pounds, eighteen
and fourpence currency, with interest, together with costs
of suit, and the plaintiff prays that this trial may be
ordered to eome on immediately.
The defendant appears and acknowledges the debt as
it is stated by the plaintiff in his declaration, but pleads
Inability to pay it.
The Court are of opinion that the defendant is justly
indebted to the plaintiff in the sum of ten pounds,
eighteen shiUings and fourpence, currency, with lawful
interest on the said sum from the month of May, 1786,
to this day, and do therefore order and adjudge, with the
consent of the plaintiff, that 'the defendant do pay to the
plaintiff the full amount of the debt with interest, tUl this
da}-, at the expiration of three months from this daj',
together with costs of suit.

Joslaih Bleakly
vs.
Phillip Crysler.

TUESDAY, 17th MARCH, 1789.
CouBT OF Common Pleas, held at New Johnstown,
on Tuesday, the 17th day of March, 1789.
Present: The Honorable Richard Duncan, Alexander
McDoneU, Esquires.
The Sheriff returned the writ.
The plaintiff appears and filed declaration, and prays
this cause may be tried immediately.
The Court grant the above prayer, and order that
this cause do come on directly.

UPPER CANADA COURT RECORDS.

365

The defendant being duly called does not appear,
neither in person or by his agent.
The plaintiff filed the defendant's note of hand for
one hundred and nine pounds, seven shUlings and six
pence, currency.
The Court having heard the plaintiff's declaration,
and having seen the exhibits filed in this cause, are of
opinion that the debt demanded by the plaintiff is a just
one, and do therefore order and adjudge that the de
fendant do pay the sum claimed by the plaintiff in his
declaration of one hundred and nine pounds, seven
shiUings and sixpence, Halifax currency, together with
costs of suit.
Court. (Signed on Minutes.) Richard Duncan.
Alexr. McDonell.

MONDAY, 30th MARCH, 1789.
CoL'ET OF Common Pleas, held at Edwardsburg, on
Monday, the 30th day of March, 1789.

Present : The Honorable
McDonell, Esquires.

Richd. Duncan, Alexr.

It is the opinion of this. Court, from the evidence
produced on the part of the plaintiff, as well as from the
testimony of his Ticket, that he as original proprietor has
the best titie to the lot in question, the Court do there
fore order and adjudge that the plaintiff be put in posses
sion of the same in the course of one month, from this
date, at the same time as it appears to the Court that the
defendant has an equitable title to the improvements
by him made thereon, during his possession, they there
fore order that two appraisers be appointed by the parties
to value the same, and that the plaintiff reimburse those
improvements so valued either by clearing so much land
yearly for the defendant in the same proportion as he
cleared on his lot, or by giving an equivalent in money,
at the same time allowing the plaintiff for the benefits
received by the defendant from the several crops produced
upon the said lot during the defendant's possession. The
Court also order that the cleared lands in question, as
well as the crops now in the ground, shall be in joint
copartnercy for this year between the parties, and if the
appraisers see any particular advantage arising on either
side from this mode of division they are to take notice
of it, and allow accordingly, and the Court request the

Conradt Perterson
VS.
Jonathan "Wlck-
wlre.

366

UPPER CANADA COURT RECORDS.

Francois Lorimier
vs.
James Jordan.

favour of Ephriam Jones, Esquire, to take the trouble of
swearing the appraisers who shall be appointed for the
aforesaid purpose. Rule.
The parties in this cause having mutually consented
by the approbation of the Court held at Edwardsburg on
the seventh day of January last to submit the decision of
their cause to the arbitrament of Justus Sheerwood,
Esquire, Daniel Jones, yeoman, Alexr. Humphrys, and
John Brown, millwrights, all of Augusta, and whereas a
Rule of Court was served upon the jsaid arbitrators
directing them to meet upon this business on the second
Tuesday of February following, and to return their award
into Court on this day; but as it is alledged by the arbi
trators that for want of a principal evidence they could
not decide upon the matter in dispute between the
plaintiff and defendant till that evidence should be
present. It is therefore directed by this Court that the
above named arbitrators do meet and decide upon the
matter now in dispute between the parties at some time
and place to be by them appointed betwixt this date and
the twenty-fifth day of June next, which decision or
award they are to return into Court on Monday, the
twentieth day of July next. The Court order this Rule
to be served upon the above mentioned arbitrators that
they may conduct themselves accordingly.
The Court adjourned till to-morrow at ten o'clock in
the forenoon.

Justus Sheerwood
vs.
Alex. Humphrys.

TUESDAY, 31st MARCH, 1789.
Court met pursuant to adjournment.
Present : The same Judges.
The Sheriff returned the capias,
The plaintiff appears and filed declaration.
The defendant appears, and having mutually agreed
with the plaintiff to accommodate their differences with
out bringing it to the issue of a suit, they have therefore
consented to the following mode for that purpose (which
the Court approve of), viz.: The plaintiff is to furnish
wheat for fifteen days' subsistence for the defendant, and
to find a man to Work with him, during which time the
defendant is4o complete a saw miU for the plaintiff as
heretofore was agreed upon, and to repay the work to be
done by the man to be furnished by the plaintiff; and
also to give a mortgage in the mean time upon his house
and lot, as security to the plaintiff for the true perform
ance of this agreement.

UPPER CANADA COURT RECORDS.

367

WEDNESDAY, 1st JULY, 1789.
Court of Common Pleas, holden at New Johnsto^wn,
on Wednesday, the 1st day of July, 1789.
Present: The Honorable Richard Duncan, Alexander
McDonell, Esquires.
The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant appears and says that he is justly in
debted to the plaintiff for eighteen bushels of wheat, but
objects to the price and damages demanded by the
plaintiff in his declaration, and submits the decision of
his cause to the judgment of the Court.
With the consent of the parties it is ordered that this
trial do come on immediately.
Plaintiff filed two exhibits:
1. Note promisary from defendant to the plaintiff.
2. Letter from the defendant to the plaintiff.
The Court having heard the parties respectively and,
seen the exhibits filed in this cause, do take time to con
sider of the judgment.
The Court having maturely considered the case of
Gersham French, plaintiff, and Ziba PhiUips, defendant_
are of opinion that the defendant is justly indebted to
the plaintiff in the sum of eighteen pounds, currency, for
debt and damages, which sum the defendant is condemned
to pay to the plaintiff, with costs of suit.
MONDAY, 20th JULY, 1789.
Court of Common Pleas, held at Edwardsburg, on
Monday, the 20th day of July, 1789.
Present: The Honorable Richard Duncan, Alexander
McDoneU, Esquires.
The Sheriff returned the writ 'of attachment.
The plaintiff appears and filed declaration.
The defendant appears, and denies the charge as laid
in the plaintiff's declaration.
The parties mutually consent to have this trial come on
immediately. It is therefore ordered that the special
matter be given in evidence.
Lam Weatherhead, being sworn to give e^vidence in
this cause, saith that she heard the defendant say that

Gersham French
vs.
Ziba Phillips.

Dorothy Brown
vs.
HemanLanden.

368 UPPER CANADA COURT RECORDS.
he had slept with the plaintiff, for which reason he would
not marry her.
The deponent being asked by the defendant whether
she did not hear the plaintiff say that she was glad that
the defendant was gone. Answer, she did hear the plain
tiff say so, because he had deceived her.
(Signed on the Minutes.) her
Lana X Weatherhead.
mark.
Rebecca Every, being isworn to give evidence in this
cause, saith that the defendant told her in the month of
January last that it was on account of the plaintiff that
he jwas going to leave the country, as he expected a eon-
stable to be after him very soon, and that he was going
into the Colonies, and that he would not return till the
next winter. her
(Signed) Rebecca X Every.
mark.
John Ralston, being sworn to give evidence
in this, and being asked whether he had heard the
defendant say anything relative to the plaintiff's
character, saith that he did not hear the defendant say
anything, but had heard several people say that the
defendant had reported that the plaintiff was a whore, or
words to that signification.
Question 1, by the plaintiff. — ^Whether the deponent
had not heard that a day was appointed for her wedding
with the defendant?
Answer. — He did hear Lidia Askin say that a day was
appointed for the wedding.
Question 2. — What opinion do you entertain of the
plaintiff from her connection with the defendant?
Answer. — ^That her character is injured by it.
Question 3.— Whether he did not think the plaintiff
could have married to advantage, if she had had no con
nection with the defendant?
Answer. — ^Yes.
(Signed on the Minutes.) John Ralston.
Conradt Petersoh, being sworn to give evidence in
the cause, saith that he lived last winter in the same house
with the plaintiff, and that she told him she was to be
married to the defendant, and asked him to the ¦Redding,
he further says he heard the defendant call the plaintiff

UPPER CANADA COURT RECORDS. 369
his old woman. The deponent adds that he heard some
of the plaintiff's family declare at the time of the funeral
of her mother, that they looked upon the defendant as
one of their family.
Question by the Court: Have you heard anything to
the prejudice of the plaintiff's character from her con
nection with the defendant?
Answer. — I have heard it said, but cannot tell by
whom, that the defendant had said the plaintiff was a
whore, and that he was determined to be even with her
for some ill treatment, which his brother had received
from her.
Shubel Seelye, being sworn to give evidence in this .
cause, saith that some time last winter he was in company
with the defendant, and that the defendant told him he
was going to be married to Dorathy Brown (the plaintiff)
and that he was going to put up a house, and he also
understood that the defendant had obtained his father's
consent to marry the plaintiff. Some days after this con
versation with the defendant, he saw him passing by, and
told him he thought he had been married by that time,
the defendant replied that thei wedding was put off on
account of the death of the plaintiff's mother.
Question by plaintiff. — Whether you do not think her
character injured by the 'reports .spread about her, from
her connection with the defendant?
.\nswer. — Yes.
Question, by defendant. — Whether the deponent did
not understand from the neighbourhood that the defen-
dalnt's father's consent to the marriage could not be
obtained ?
Answer. — He did hear some of the neighbours say
that the plaintiff was not qualified to come into his (the
defendant's) family.
(Signed on the Minutes.) Shubel Seelye.
¦ Ashel Hurd, being sworn to give evidence in this suit,
saith that about the first day of June now last past he
stopped at the house of George Campbell, of Augusta, to
get a glass of rum; during the time that he was in the
house he saw one Loop lying in bed, and a woman with
him, who he supposes to have been the plaintiff ; on being
interrogated by the Court saith that he cannot be positive
as to the woman, but is sure that Loop is the man.
(Signed on the Minutes.) Ashel Hurd.
Chandler PhiUips, being sworn to give evidence in this
cause, saith that about the first of June he was at the

370

UPPER CANADA COURT RECORDS.

house of George Campbell, of Augusta, in company with
Ashel Hurd, and agrees with the whole of his evidence.
(Signed on the Minutes.) Chandler Phillips.
James Jordan, of Augusta, millwright, being sworn
to give evidence in this cause, saith that he was in George
Campbell's house on the morning that the two foregoing
evidences (Ashel Hurd and Chandler Phillips) called
there, and that he was the person who was in bed with
the said Loop, mentioned in the evidence of Hurd, who he
supposed to be the plaintiff.
Question, by plaintiff. — Whether the deponent ever
knew from himself, or had heard from any other person,
that there was any criminal correspondence, or connec
tion, between her and the said Loop?
Answer. — He did not.
The parties, plaintiff and defendant, in this cause
having agreed to proceed no further in this action, and
having prayed the Court to discharge it, the Court grants
their prayer, and order and adjudge that each party shaU
pay half the costs that have accrued in this suit.
MONDAY, 12th OCTOBER, 1789.
Court of Common Pleas, held at New Johnsto^wn,
on Monday, the 12th day of October, 1789.

Richard Wilkinson
vs.
Phillip Crysler.

Rlchai-d "Wilkinson
vs.
David Mecun.

Present: The Honorable Richard Duncan, Alexander
McDoneU, Esquires.
The Sheriff returned the writ.
The plaintiff appears and files declaration.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears by his agent and acknowl
edges the debt which the plaintiff demands by his
declaration. The plaintiff filed a note of hand of the defendant.
The Court having heard and considered the defen
dant's confession of the debt do therefore order and
adjudge him to pay the plaintiff the sum demanded in
his declaration of thirteen pounds, three shillings and
fivepence, Halifax currency, with la^wful interest ou the
said sum from the eleventh day of March, 1789, till the
fifth of October, in the same year, the interest amounting
to nine shillings and fivepence, making together the sum
of thirteen pounds, twelve shillings and ten, currency,
and costs of suit.

UPPER CANADA COURT EECOEDS.

371

The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendants appear and file plea.
On motion of the defendants, this cause is ordered to
be tried by a jury, and that a venire do issue for that
purpose, returnable at ten o'clock in the forenoon on
Wednesday, the l'4th instant.

James Gray. Esq..
vs.
"W^illiam Empey,
Jacob Ross and
Matthias Snit-
singer.

The defendant appears and confesses that he is in
part indebted to the plaintiff for the sum he demands in
his declaration.
The plaintiff filed three pieces, viz.: —
1. A Eule of Court from the Common Pleas at
Montreal. 2. A letter from Mr. Powell, Esqr., to the plaintiff.
3. Plaintiff's account against the defendant.
The plaintiff having in his declaration demanded of
the defendant the sum of thirty-eight pounds, fourteen
shillings halfpenny, currency, for divers goods, wares,
and merchandize sold and delivered unto him; and also
for costs paid in Montreal heretofore accrued in this
action as appears by his account filed, ancl^ having also
filed a Eule of Court from the Common Pleas in Mon
treal, by which it appears that the party mutually sub
mitted the investigation and determination of their cause
to arbitrators who, accordingly, awarded to the plaintiff
his whole account and demand. The Court do therefore
order and adjudge that the defendant do pay to the
plaintiff the said sum of thirty-eight pounds, fourteen
shillings halfpenny, currency, together with costs of suit
to be taxed to him.
Court adjourned till Wednesday, at 10 o'clock in the
forenoon.

Richard "Wilkinson
vs.
Phillip Crysler.

WEDNESDAY, 14th OCTOBER, 1789.
The Court met pursuant to adjournment.
Present: The Honorable Richard Duncan, Alexander
Donell, Esquires.
The Sheriff returned the venire. James Gray
,, . . vs.
The iurv impannelled and sworn to try the issue m -wm. Bmpey, Jacob
... tl J X- _ Ross and Matthias
this cause were, viz. : — Snitsinger.

1. Thomas Swan.
2. Andrew Wilson.
3. Robert McGregor.
4. Richard Wilkinson.
5. John Emerson.
6. Jeremiah French.

7. WiUiam Coffin.
8. John Peescod.
9. Alexander Campbell.
10. Jacob Vanduzen.
11. John McNairne.
12. WiUiam Key.

372

UPPER CANADA COURT RECORDS.

The plaintiff by and in his declaration having com
plained that the defendants had trespassed on a certain
lot belonging to him and lying in the village of New
Johnstown; and the ground having been particularized
by two evidence (men who cleared the ground for the
plaintiff), the jury request the liberty to view the
premises, which the Court grants, and the jury retire
accordingly. The jury having viewed the premises returned into
Court, and having heard the evidence, and seen the ex
hibits iu this cause, retire to consider their verdict.
The jury, having returned into court, say by Richard
Wilkinson, their foreman, that they unanimously find a
verdict for the plaintiff, with damages to the amount of
ten pounds currency.
The Court having considered the verdict of the jury
do confirm the same, and condemn the defendant in costs
of suit to be taxed.

Thomas Knowlton
vs.
Joseph Seelye.

• TUESDAY, 27th OCTOBER, 1789.
Court of Common Pleas, held at Augu.sta, on Tues
day, the 27th of October, 1789.
Present: The Honorable Richard Duncan, Alexander
McDoneU, Esquires.
The Sheriff returned the capias.
The plaintiff appears and filed declaration.
The defendant appears and says that he is in nothing
guilty as set forth by the plaintiff in his declaration, and
prays the truth may be thereof inquired.
The plaintiff filed a penal bond given by the
defendant. On motion for trial, and by request of the parties, it
is ordered that this cause be tried by jury, and that a
venire do issue, returnable to-morrow at ten o'clock in the
forenoon.

Daniel Pattlson
vs.
Enoch Mallery.

The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant appears, and denies the charges ex
hibited against him by the plaintiff's declaration, and
prays the truth may be inquired of.
On motion and prayer of the defendant, and with con
sent of the plaintiff, it is ordered that this cause be put
off tiU next Court of Common Pleas.

UPPER CANADA COURT RECORDS.

373

The Sheriff return the writ.
The plaintiff appears and filed declaration.
The defendants appear and deny the charges
alledged against them in the plaintiff's declaration, and
pray that the truth may be inquired of.
On motion and prayer of the defendants, and their
representing to the Court the want of a matterial
evidence, and with consent of the plaintiff, it is ordered
that this cause be adjourned till the next sitting of this
court, and then to be tried by a jury.

Shubel Seelye
vs.
Daniel Shlpman,
Thos. Knowlton.

Shubel Seelye
vs.
Daniel Pattlson
and Thomas
Knowlton.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears and denies that he is in any
thing indebted to the plaintiff as set forth in his
declaration. The parties mutually pray that this trial may be put
off till next Court, because the principal evidence is now
absent and cannot appear at this time.
The Court grants the above prayer, and order this
eause to be put off accordingly.
The Court adjourned till to-morrow, ten o'clock in the
forenoon.

John MacNaulty
vs.
.Vbner Booth.

WEDNESDAY, 28th OCTOBER, 1789.
The Court met pursuant to adjournment.
Present: The Honorable Richard Duncan, Alexander
McDoneU, Esquires.
The Sheriff returned the venire.
The parties appear.
The jury impannelled and sworn to try the issue
joined in this cause were: —

1. Justus Sherwood.
2. Thomas Sherwood.
3. Elijah Bottom.
4. Alexander Campbell.
5. Benoni Wilsee.
6. WiUiam Martin.

7. Ephriam Jones.
8. James Campbell.
9. John Dulmage.
10. Asa Landen, Senr.
11. Caleb Clausen.
12. Samuel WiUson.

The jury being duly sworn to say the truth according
to' evidence, and having heard the parties and evidence,
and having also seen the declaration and plea and other
exhibits filed in this cause, and having received the
charge from the Court, they retire to consider of their
verdict.

Thomas Knowlton
vs.
Joseph Seelye.

UPPER CANADA COURT RECORDS.

John McNaulty
vs.
Abner Booth.

Daniel Pattlson
vs.
Enoch Mallery.

The jury having returned into Court say by Justus
Sherwood, Esquire, their foreman, that they find a verdict
for the plaintiff, viz. :
Unanimously agreed, that Joseph Seelye pay Thomas
Knowlton twelve pounds, ten shillings, currency, for debt
and damages on the Bond, and lawful interest on the
said sum from the eighteenth day of May, 1789, till actual
payment. The Court having considered the verdict of the jury
do confirm the same, and condemn the defendant to pay
costs of suit, to be taxed.
The parties in this suit being desirous to refer their
cause to the decision of an arbitration, the Court do there
fore consent to indulge them, on condition of costs of suit
already incurred being paid. The persons appointed for
this purpose are Justus Sherwood, of Augusta, Esquire,
Thomas Sherwood, of Elizabethtown, Esquire, and AUen
Grant, of Elizabethtown, aforesaid, yeoman, by mutual
consent of the parties and by approbation of the Court.
Witness the parties' hands.
' (Signed on the Minutes.)
John MacNaulty, plaintiff.
Abner Booth, Defendant.
It is ordered that this rule be served on the arbitra
tors, and that their award be made returnable into this
Court on the third Tuesday of January, 1790.
The parties in this suit being desirous to refer the
decision of their cause to an arbitration, the Court do
therefore agree to indulge them on condition of costs of
suit already incurred being paid. The persons appointed
for this purpose by mutual consent of the( parties, and
by approbation of the Court, are Thomas Sherwood, of
Elizabethtown, Esquire, Daniel Jones, of Augusta, gen
tleman, and Alexander Campbell, of Augusta, aforesaid,
gentleman. Witness the parties' hands.
(Signed on the Minutes.)
Daniel Pattison, plaintiff.
Enoch Mallery, defendant.
It is ordered that this rule be served on the arbitra
tors and their award be made returnable into this Court
on the third Tuesday of January, 1790.

MONDAY, 17th MAY, 1790.
Court of Cozmmon Pleas, held at Augusta, on Mon
day, the seventeenth day of May, 1790.

UPPER CANADA COURT RECORDS.

375

Present: The Honourable Richard Duncan, John
McDonelle, Esquires.
• The parties appear and file an award of arbitration
agreeable to a Rule of Court in this cause.
The Court having seen the award do confirm the same.

John McNulty
vs.
Abner Booth.

The parties appear and file an award of arbitration Daniel iPatti son
agreeable to a Rule of Court in this cause. Enoch Maiiery.
The Court having seen the award do confirm the same.

The parties appear and file an award of arbitration
agreeable to a Rule of Court in this cause.
The Court having seen the award do confirm the same.

declaration and one

The Sheriff returned the writ.
The plaintiff appears and files
exhibit. The defendant appears and acknowledges the charge
set forth in the plaintiff's declaration to be in part just,
viz., that a contract had been made between the parties
in which the plaintiff was to cover three houses for the
defendant thirty feet by twenty with shingles, and that
the defendant was to provide the plaintiff with nails for
that purpose, and also with provision whilst at work at
the said houses, and that the defendant was to pay the
plaintiff fifteen pounds for the job, but that no time fixed
upon when the job should be compleated and that the
nails for covering the houses did not eome as soon as he
expected. Joseph Bartlet, being sworn to give evidence in' this
cause, says to the best of his knowledge the plaintiff lost
lat least one month, in consequence of not being furni-hed
with naUs agreeable to contract, after he had made
shingles sufficient to cover the three houses ; in that tirae
the job might have been compleated, and at last was under
the necessity of leaving it for want of the nails.
(Signed on the Minutes.) his
Joseph X Bartlet.
mark.
The Court having heard the parties respectively on
their own behalf and the evidence, and seen the declara
tion and plea, are of opinion that the defendant is justly
indebted to the plaintiff in the sum of fifteen pounds,
agreeable to the contract between the parties filed in this
cause by the plaintiff, and also in the sum of five pounds,
currency, damages sustained by the plaintiff, for non-

Shuhel Seely
vs.
Daniel Shipman.

Augu stain
Lafleche vs.
-yernll Lorimier.

376

UPPER CANADA COURT RECORDS.

performance of agreement on the part of the defendant,
which said sums, making together the sum of twenty
pounds currency, the Court condemn the defendant to
pay to the plaintiff before the last day of July next^ and
the costs of suit.

Barnard Emery
vs.
Verniel Lorlmlr.

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant appears and denies the charge as laid
against him by the plaintiff's declaration as to damages
that an agreement had been made between the plaintiff and
defendant nighly as set forth in the declaration, which
agreement the plaintiff did in any part fulfil, but left the
defendant's employ without giving any notice.
David Fredrick, being sworn to give evi.dence in this
cause, says that he was present when the. plaintiff and
defendant made an agreement, but cannot pretend to say
what the nature of it was, and that he had been employed
by the plaintiff several days working at the defendant's
house, that there was reason of complaint respecting the
provisions given to the workmen as to quantity and
and quality.
The Court having heard the parties and evidence in
this cause, and having seen the declaration and plea, do
order and adjudge this cause to be dismissed with costs
to the defendant.

PROVINCE OF QUEBEC, DISTEICT OF
LUNEBUEG. 1st JUNE, 1790.

Nancy Drew
vs.
James Daugherty
and Hannah his
wife.

Nancy Drew
vs.
David Bruce.

At a Court of Common Pleas, held at Cornwall, on
Tuesday, the first day of June, 1790.
Present: The Honourables Eichard Duncan and John
McDonell, Esquires.
The Sheriff returns the writ.
The plaintiff appears and files declaration.
The defendants appear and say for their plea that they
are in nothing guilty as set forth in the plaintiff's declara
tion. At the defendants' request the Court order this cause
to be tryed by a jury, and that a venire do issue to-morrow
morning, at ten o'clock.
The Sheriff returns the summons.
The plaintiff appears and files declaration.
The defendant appears and says that he is in nothing
guilty as set forth in the declaration bv the plaintiff.

UPPER CANADA COURT RECORDS.

377

On motion of the defendant it is ordered that this
cause be tryed by a jury to-morrow at ten o'clock in the
forenoon, and the special matter be given in evidence at
that time.
The Sheriff returns the writ.
The plaintiff appears and files declaration.
The defendant appears and says that he acknowledges
that he made use of the expressions , as set forth in the
plaintiff's declaration. On motion of the defendant it is
ordered by the Court that this cause be tryed by a jury
to-morrow morning at ten o'clock.
The Sheriff returns the writ.
The plaintiff appears and files declaration.
The defendant appears and says that he did make use
of the language as set forth in the plaintiff's declaration,
but not with an intention to defame the plaintiff, but
merely aS( a jest, and submits the determination of the
cause to the Court.
The Court having seen the declaration, and the de
fendant having" pleaded guUty of the charge brought
against him, the Court do therefore condemn the defendant
to pay to the plaintiff the sum of two shiUings and six
pence damages and costs of suit.
The Sheriff returns the writ of attachment against the
defendant's goods and chattels, land, and tenements.
The plaintiff appears by his agent, Mr. John Biekie,
of CornwaU, merchant, and saith he is satisfied for the
debt that the defendant owed him, therefore the Court do
order this action to be discharged, plaintiff to settle the
costs that have incurred.
The Sheriff returns the writ of attachment against the
defendant's goods ?,nd chattels, lands and tenements, and
~ also the summons to appear.
The plaintiff appears by his agent, Mr. John BeUiie,
of Cornwall, merchant, and saith that he is satisfied for
the debt that the defendant owes him.
The Court do therefore order this action to be dis
charged. Plaintiff to settie the cost that has been already
incurred. Court adjourned tiU ten o'clock to-morrow morning.
WEDNESDAY, 2nd JUNE, 1790.
The Court have met atxjording to adjournment.
Present: The same Judges.

Nancy Drew
vs.
Stephen Miller.

Peter Bruner
vs.
John Markle.

Rosseter Hoyle
VB.
Farquhers:

Rosseter Hoyle
vs.
Phillip Crysler.

O I o

UPPER CANADA COUE

;t e

EC

;ORDS.

Nancy Drew

The Sheriff returned the writ

venire.

James Daugherty
and wife.

The parties appear.
The jury empaneled

and

sworn to try the issue in

this cause, were:

1. GUes McBean.
2. Andrew Wilson.
7. Robert McGrigor.
8. John Pescod.
3. John Biekie.
4. Warffe.
5. John Loney.
6. Jacob Empey.
9. Henery Runion.
10. Daniel CampbeU.
11. Assel Wright.
12. Nathan Putnam.
Thos. Coffin, Esq.,
vs.
Jacob Cuntryman.
For the plaintiff : Catherine "Cline, Donald McGrigor,
William Kay, Mrs. William Kay.
For the defendant: Mich'l Cline, Eb'r Anderson.
The jury having heard the parties respectively on their
own behalf, and having also heard the evidences produced
and seen the declaration and plea, retire to consider of
their verdict. The jury having returned into court say
by Robert McGrigor, their foreman, a verdict for the de
fendants, with costs of suit, and so they say unanimously.
The Court having heard the verdict of the jury approve
of the same and order it to be* recorded accordingly.
The Sheriff returns the summons.
The plaintiff appears by his agent, Jacob Farrand,
Esq., and fUes declaration.
The defendant appears and accommodates the debt;
wherefore the Court orders the defendant to be discharged
from this suit.
Nancy Drew
vs.
Stephen Miller.
The Sheriff returns the venire.
Parties appear.
The jury empaneled and sworn to try this issue joined
were:
1. Gilles McBain.
2. Andrew Wilson.
3. John Biekie.
4. Eichard Warffe.
5. John Loney.
6. Jacob Empey.
7. Eobert McGrigor.
8. John Pescod.
9. Henery Eunion.
10. Daniel Campbell.
11. Assel Wright.
12. Nathan Putnam.
The defendant being ordered to bring forward his evi
dence in support of his plea offers David Bruce, whidi
plaintiff objects as a party interested in the issue of this
suit, which objection the Court admit of as just.
The jury having heard the parties respectively on their
own behalfs, and seen the declaration and plea, retire to
consider of their verdict. The jury having returned into
UPPER CANADA COURT RECORDS.

court say by their foreman, Robert McGrigor, they find a
verdict for the plaintiff of two pounds damages, with half
the costs of suit, and so they say all.
The Court approve of the verdict and confirm the same
as it is recorded.
The plaintiff prays for an adjournment for the want of
a material evidence, viz., the Rev. Mr. John Bryan, who
has been subpeanead for the plaintiff in this suit.
The defendant objects to this prayer being granted,
saying that he is now ready for tryal.
The Court over-rules this objection and order the tryal
to be put off tUl next term, of which the parties are to take
notice. Richard Duncan and J. McDonald, Jud'ges.
At a Court of Common Pleas, held at Osnabruck, the
16th day of September, 1790.

Nancy Drew
vs.
David Bruce.

Present: The Honourables Richard Duncan,
Jessup, and John McDonell, Esquires.

Edward

The father appeared for the plaintiff and prayed that
this cause may stand over till next term, the plaintiff
being in the Colonies, and her evidence unable to attend
on this day.
The defendant appears in person and states that he is
ready for tryal.
Paul Drew, the father, thereupon prays leave to with
draw the action, which the Court grant on payment of
costs.

Nancy Drew
vs.
David Bruce.

The Sheriff returns the writ, the parties appear.
The plaintiff appears by 'Thomas Walker, Esq., her
attorney, and prays leave to withdraw her suit, which the
Court grants her prayer on payment of costs.

Elisabeth Loucks
vs.
Hannah Loucks.

The Sheriff returns the writ.
The parties appear.
T. Walker, Esq., attorney, moves that the defendant
do answer. The defendant appears in person and acknowledges the
bargain or agreement for a certain tract of land and has
received part payment 'and the balance remaining due
differs twenty shiUings or upwards, and that the said
balance was never tendered or the deed presented to the
defendant to be executed, and thinks that no just cause of
action was against him.

Sam'l Adams, Esq.
vs.
Hugh Munro, Esq.

380

UPPEE CANADA COUET EECORDS.

David Su
vs.
Alex'r Campbell.

Margaret Filler
vs.
Frederick Markley.

"William Faulkner,
Esq., curator to
the estate of
Barn's Spencer,
deceased, vs.
Joseph Brownell.

The plaintiff for replycation, by T. Walker, his
attorney, saith that the balance was duly tendered to the
defendant though thereunto in no wise obliged, that the
assertion of the deed not being presented is Ul-founded,
the defendant having in his own hand-writing prepared
a deed which he now files, and which the defendant has
hitherto refused to execute, wherefore he prays judgment
that the defendant do execute the deed within a certain
time limited, plaintiff now offering to pay the balance,
which he persists is properly stated in his declaration, and
that the defendant be condemned to pay the costs.
The Court having seen the plaintiff's declaration and
heard his plea, and also heard the defendant's defence, do
order that the defendant execute the deed as prayed for in
the plaintiff's declaration and do pay the cost of this suit.
The Sheriff returns the writ.
The parties appear.
The defendant appears and denies the charges as laid in
the declaration.
The plaintiff persists in the conclusion of his declara
tion, and prays leave to produce his evidence.
The parties pray that WiUiam Falkner, Esq., be
nominated sole arbitrator to decide this difference, which
the Court admit, and he is hereby nominated accordingly.
ilr. Falkner returned into court and says that this action
be withdrawn, the cost to be equally paid by the parties.
The Court confirm this award and order that this
action be dismissed, and the costs to be divided accord-
ingiy- The Sheriff returns the writ.
John Markley, the husband of the plaintiff, appeared
in^ person, confesses satisfaction, prays leave to withdraw
this suit, which the Court grant upon payment of costs to
this day. SEPTEMBER 7th.
The Court met agreeable to adjournment.
Present: The same Judges.
The Sheriff returned the writ.
Thomas Walker, Esq., attorney for the plaintiff.
The defendant appeared in person and prayed the
Court for a reasonable time, not being prepared with
counsel. The Court do order this cause to be put off tiU next
term, and that the defendant do file a plea by the first day
of the term.

UPPER CANADA COURT RECORDS.

381

The Sheriff returned the writ.
Thos. Walker, Esq., attorney, for the plaintiff.
The defendant appears in person and prays the Court
for a reasonable time, not. being prepared "with counsel.
The Court do order this cause to be put off till next
term, and that the defendant do file plea by the first day of
the term.
The Sheriff returned the writ.
Thomas Walker, Esq., attorney, for the plaintiff.
The defendant appeared in person and prays the Court
for a reasonable time, not being prepared with counsel.
The Court do order this cause to be put off till next
term, and that the defendant do file plea by the first day
of the term.
The Sheriff returned the writ.
Thomas Walker, Esq., attorney, for the plaintiff.
The defendant appeared in person and prays the Court
for a reasonable time, not being prepared with counsel.
The Court do order this cause be put off till the next
term, and that the defendant do file plea by the first day
of the term.

George Barnhart
vs.
Abraham Marsh.

George Barnhart
vs.
George Johnston.

•George Barnhart
vs.
James Johnston.

13th JANUARY, 1791.

George Barnhart
vs.
George Johnston.

Court of Common Pleas, held at Osnabruck, the
13th day of January, 1791.
Present: The Honourables Richard Duncan and John
McDonell, Esquires.
Thos. Walker, Esq., for plaintiff, moves the defendant
file his plea agreeable to the rule made in this cause the last
day of last term.
James Walker, Esq., for the defendant appears, and
prays leave to enter appearance for defendant, which the
Court grants, and files his plea accordingly.
Thos. Walker, Esq., for plaintiff, filed replication.
Thomas Walker, Esq., for the plaintiff, moves the
defendant file his plea agreeable to a rule made in this
cause the last term.
James Walker, Esq., for the defendant, prays leave to
enter appearance for the defendant, which the Court
grants, and file plea accordingly.
Thos. Walker, Esq., for plaintiff, files replication.
James Walker, Esq., prays leave to enter appearance ^s'^'.'^curat^or^Tc.,
for defendant, which the Court grants and files plea ^^^^Vs. ^^^^^^^j
accordingly.

George Barnhart
vs.
James Johnston.

.¦.;82

UPPER CANADA COURT RECORDS.

Mr. James Walker, for defendant, prays that the plain
tiff' do file his replication to-morrow. Granted.

George Barnhart
vs.
Jeremiah French.

The Sheriff returned summons.
James Walker, Esq., enters appearance and files plea.
Thos. Walker, Esq., files replication.

Lewis Neadoe
vs.
Jno. Ashburn.

The Sheriff returns summons.
The plaintiff appears and declares satisfaction.

John Shell
vs.
Phillip Crlsler.

The Sheriff returns the summons.
The defendant being caUed does not appear and he is
defaulted.

John Lake
vs,
John Christie and
PRebe Christie.

The Sheriff returns the summons.
The parties appear and withdraw the suit. ^
The Court adjourned till to-morrow morning at ten
o'clock.
13th JANUARY, 1791.

inst.

The Court met agreeable to adjournment of the 13th

Present: The same Judges.

William Falkner,
Esq., curator, &c.,
vs.
Joseph Brownell.

Thos. Walker, Esq., for the p'a'ntiff, entered retraxit,
which the Court grant on payment of costs.
The Court adjourned till to-morrow morning at ten
o'clock. 15th JANUARY, 1791.
In Couet op Common Pleas, for the district of Lune
burg, held agreeable to adjournment the 14th January,
1791.

George Barnhart
vs.
George Johnston.

Present: The same Judges.
Thomas Walker, Esq., attorney for the plaintiff, moved
that the Sheriff returns the venire.
The Sheriff returns venire.
The jury empanneled and sworn to try the issue of this
cause were :

1. William Falkner, Esq.
2. Simeon Covell, Esq.
3. Mich'l Hayns.
4. Henry Markle.
5. Jacob Markle.
6. George Thompson.

7. Conrad Devoe.
8. Phillip Walter.
9. Jacob Wager.
10. John Stageman.
11. Richard Loucks.
12. .John Loucks.

UPPER CANADA COURT RECORDS.

383

Colonel James Gray sworn on the part of the plaintiff.
John Dixson sworn on the part of the plaintiff.
John Helmer sworn on the part of the plaintiff.
Conrad Smith sworn on the part of the plaintiff.
Jeremiah French, Esq., sworn on the part of the
plaintiff. Capt. Samuel Anderson on the part of the plaintiff.
They say by their foreman, William Falkner, Esq.,
verdict for the defendant, and so they say all.
The Court having heard the verdict of the jury dismiss
the action with costs of suit, the parties having agreed by
their counsel that judgment be immediately passed.

¦fhos. Walker, Esq., for the plaintiff enters a retrexit,
the Court admits the same on payment of costs. Clerk's
fees, £1 4s. 6d.

George Barnhart
vs.
James Johnston.

Thos. Walker, Esq., moves that tryal come to be heard
on Thursday next.
Mr. James Walker moves that having concluded to the
country that a venire do issue returnable on Tuesday, the
Court do order the same.

George Barnhart
vs.
Jerem'h French,
Esq.

18th JANUARY, 1791.
In Court of Common Pleas, at Osnabruck, the 18th
January, 1791, held according to adjournment the 15th
ult. Present: The same Judges.

J. Walker, attorney for the plaintiff, moves that the
Sheriff return the venire returnable this day.
The Sheriff suggests to the Court that on account of
the badness of the weather and the distance of the jurors'
abode has not admitted of a return.
The Court having considered of the Sheriff's excuse do
order that the Court be adjourned tUl to-morrow at 11 of
tlie clock in the forenoon.

George Barnhart
vs.
Jeremiah French.
Esq.

19th JANUARY, 1791.

In Court of Common Pleas, at Osnabruck, the 19th
January, 1791, held according to adjournment the 18tli
ult Present : The same Judges.
J. Walker, attorney, prays that the Sheriff show cause
why the venire is not returned this day.
The Sheriff returns the venire.

George Barnhar!
vs.
Jerem'h Pi-ench,
Esq.

384

UPPER CANADA COURT RECORDS.

Mr. Thos. Walker, attorney for the plaintiff, states to
the Court that as the venire was returnable yesterday he
cannot consent to go into the tryal as to-day, but moves
that this cause be continued over till next term, which the
Court orders accordingly.
This Court stands adjourned over to the first Monday
in June next. 6th JUNE, 1791.
Court of Common Pleas, held at Osnabruck, on Jl on-
day, the sixth day of June, 1791.
Present: The Honourables Richard Duncan and John
McDonell, Esquires.

George Barnhart,
plaintiff, vs.
Jeremiah French,
Esq., defendant.

The plaintiff appears in court and persists in the con
clusion of his declaration.
The defendant appears in person and defines the force
and wrong done him, and says that he is not guilty of thc
premises in manner and form as set forth in the plaintiff's
declaration and of this puts himself upon the country, aud
moves that a venire do issue immediately, which the Court
grant, and order the same to be made returnable the 8tii
inst., to which time the Court stands adjourned.

Sth JUNE, 1791.
Court of Common Pleas, held at Osnabruck, Sth
June, 1791, agreeable to adjournment of the 6th June
inst. Present: The same Judges.

George Barnhart,
plaintiff, vs.
Jeremiah French,
Esq., defendant.

VIZ.

The Sheriff returned venire.
Accordingly the jury was sworn, who are as. follows,
1. John McKenzie, Esq.
2. Jacob Summers.
3. Richard Wilkinson, Esq.
4. William Kay.
5. Andrew Wilson.
6. John Biekie.
7. Miles McDoneU.
8. Thomas Swan.
9. Richard Wafffe.
10. Mich'l VanCoughnett.
11. Richard Fountain.
12. Jonas Wood, Sen.

UPPER CANADA COURT RECORDS.

385

Colonel James Gray sworn on the part of the plaintiff.
Major Arch'd McDonell sworn on the part of the
plaintiff. Captain Neil McLean sworn on the part of the plaintiff.
Captain Ranald McDonell sworn on the part of the
•plaintiff. Mr. Eb'r Anderson sworn on the part of the plaintiff.
James MePherson sworn on the part of the plaintiff.
David Wright sworn on the part of the defendant.
Robert McGrigor sworn on the part of the defendant.
Capt. Samuel Anderson, on the part of the defendant.
The jury retire to consider of their verdict in charge
of John Pressley, constable.
The jury return into court and say by Richard Wilkin
son, Esq., their foreman, that they find a verdict for de
fendant with costs of suit, which verdict the Court
confirm.

Mr. James Walker for plaintiffs.
Mr. Rosseter Hoyle, defendant, enters appearance.
To be continued over till to-morrow.

Messrs. McTavish,
Froblsiher & Co.,
va.
Mr. Rosseter
Hoyle.

Mr. James Walker for plaintiff.
The defendant enters appearance.
To be continued over until to-morrow morning.
J. Walker, Esq., for plaintiff, appears and prays to
discontinue his suit, which the Court grant.

Mr. Thomas
¦Walker V3.
George Barnhart.

9th JUNE, 1791.

Court of Common Pleas, |held at Osnabruck, on
Thursday, the 9th June, as per adjournment of the 8th
inst. Present : The same Judges.
Defendant enters appearance.
Mr. James Walker, attorney for plaintiffs, moves that
Mr. John Biekie be heard as prayed for in declaration.
The defendant objects againsi attachment being
granted, and rto John Biekie's being examined, as the
affidavit made at Montreal by James Hallowell, one of the
firm of McTavish, Frobisher & Co., before John Fraser,
Esq., one of the Judges of His Majesty's Court of Common
Pleas for the District of Montreal, the 3rd inst., is not
sufficient to ground a writ of attachment upon, as the
affidavit does not contain the words of the ordinance, which
are specified therein, to be necessary for granting any at
tachment, as per the Book of Ordinance, chap. 14th, page
26 A. ^

Messrs. McTavish,
Frobisher & Com
pany, plaintiffs,
vs.
Rosseter Hoyl».

UPPER CANADA COURT EECOEDS.

43, which are: "and is about to secrete the same, or
doth abscond, or doth suddenly intend to depart the
Province." Mr. Walker persists in the prayer of his petition, and
prays that Mr. Biekie may be heard, notwithstanding any
thing to the contrary by the defendant alledged, because
he says the present is not an original suit, but an inci
dental one, arising out of and from the one instituted in
the Court of Common Pleas for the District of Montreal;
that the ground of their complaint is fully stated in the
petition, which is all that was necessary, and that the
affidavit is not defective according to law in any point
whatever. The Court order that Mr. Biekie be heard accordingly.
Qt. — Whether he has in his hand possession, or power,
any, and what monies, goods, effects, bUls, bonds, notes,
books, papers, or other securities whatsoever belonging to
the estate of the defendant, or to the estate of the late
Hoyle & SmaU.
Ans. — That he has some butter and maple sugar^ a
few bushels of Indian corn and peas.
Qt. — Do you know if Mr. Hoyle has any property of
any kind whatever in this District in the hands, possession,
or power, of an person, or persons, whatever?
Ans. — He does not know of any.
Qt. — Do you owe any thing to Mr. Hoyle, and is it by
bill, bond, or book debt? To what does the same amount,
and when it becomes due?
Ans. — He does owe a book debt, but cannot say how
much, and does not know when it becomes due.
Qt. — Does the amount of that debt exceed one hundred
pounds, and is it under five hundred ?
Ans. — He cannot say whether it be one hundred pounds
or more. Mr. Biekie being heard accordingly, it is adjudged that
the property acknowledged by him to be in hands belonging
to Mr. Hoyle remain attached, and that he do not dispossess
himself thereof, or any part thereof till further orders from
this Court.
The Court adjourn till Tuesday, the g7th September
next. 27th SEPTEMBER, 1791.
In Court of Common Pleas, held at Osnabruck, the
27th September, 1791.
Present: The Honorables Edward Jessup and John
McDoneU, Esquires.

UPPER CANADA COURT RECORDS.

387

Thomas Walker, Esq., attorney for plaintiff, prays
leave to withdraw the suit, it being settled, which prayer
the Court grants.
J. Walker, Esq., for plaintiff.
The defendant appears in person, enters for answer,
saith that the words set forth in the declaration said to
be by him spoken are true 'and he is able to prove them.
The plaintiff appears in person.
The defendant appears and says that he found horses
in his garden in the night, and that he did drive them
out into the highway and not knowing whose they were.

for plaintiff, filed his replication and
do issue returnable on Thurs-

a venire

Mr. Walker
moved that
day next.
The defendant appeared in person and say in answer
to Mr. Walker's motion for a venire that he is not ready
for tryal on account of two of his principal witnesses
being absent and out of the Province.
Mr. T. Walker, for plaintiff, in reply, saith that the
defendant cannot by law justify the defamatory words by
him acknowledged to have been spoken, and that at any
rate he cannot put off the tryal of this cause by any such
evasiouj and ill-founded suggestion.
The Court order that venire do issue as prayed for,
the defendant having shown no legal reason to the
contrary. Mr. Thos. Walker, for plaintiff, prays that as' the de
fendant do not appear that a default may be entered
against them, which the Court order accordingly.
The plaintiff appeared, and the defendant not appear
ing, the Court order a default to be entered.
Mr. Thos. Walker, for plaintiff, offered arguments in
support of his petition.
The defendant awarded same.

Messrs. McTavish,
Frobisher & Co.,
vs.
Rosseter Hoyle.

Justus Sherwood,
Esq., vs.
Samuel Adams.

Jacob Bmpey
vs.
Nicholas Lang.

Justis Sherwood,
Esq., vs.
Sam'l Adams.

Mr. Daniel Jones
vs.
Wm. & Eph'm
Merrick.

Richard Smith
vs.
Daniel Cameron.

¦Wm. Falkner, Esq.,
vs.
Joseph Brownell,
Sen.

COURT OF COMMON PLEAS.
28th SEPTEMBER, 1791.
Present: The same Judges.
Mr. Walker, for plaintiff, moves that this cause be con- ^/^;^ Sherwood.
tinued till next term on consent of parties, which the gamuei Adam>=
Court order.

388

UPPER CANADA COURT RECORDS.

Wm. Falkner, Esq.,
vs.
Jos. Brownell, Sen.

Mr. Walker, for plaintiff, moves for judgment on the
issue joined.
The Court having considered the arguments of the
parties upon the petition presented by plaintiff, order that
the execution issued be quashed and that the execution do
issue de novo against Wm. Falkner, Esq., in his quality
of curator, only the Court reserves the costs.

Jacob Empey
vs.
Nicholas Lang.

The plaintiff appears and prays leave to withdraw
his action, which the Court grant on payment of costs.

Richard Smith
vs.
Daniel Cameron.

The Court stands adjourned over till the last Tuesday
in January, 1792. 10th DECEMBER, 1792.
At a Court of Common Pleas, held at Osnabruck, on
Monday, the tenth day of December, in the year of Our
Lord, one thousand seven hundred and ninety-two.
Present: The Honourables Richard Duncan, Jolui
McDonell, and John Munro, Esquires. .

Daniel Jones
vs.
Wm. & Stephen
Merrick.

By order of the Court, read a Commission appointing
John Munro, Esquire, to be one of the Justices of the
Court of Common Pleas for the Eastern District of the
Province of Upper Canada, and a Commission consituting
Mr. Cornelius Munro, Gent., to be Sheriff of the said dis
trict, both of whom took the oath of office in open court.
The plaintiff prays that this cause may lay over tUl
next term, which prayer the Court accordingly grant and
order the same to be continued.

Simeon Covllle
vs.
Abell & Jas.
Harrington.

The parties duly called do not appear, the Court there
fore order this action to be dismissed.

Charles Bennet
vs.
Thos. Stratton.

The Sheriff returned the writ of attachment.
The plaintiff and defendant being duly called, neither
of them appear.
Ordered to lay over till to-morrow morning.

John Barnhart
vs.
George Barnhart.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant does not appear.

UPPER CANADA COURT RECORDS.

The Sheriff returned the writ.
The plaintiff appears and enters retraxit.
The Sheriff returned the writ.
Plaintiff appears and enters retraxit.
The plaintiff and defendant being duly called and
neither appearing, the Court therefore order this action
to be dismissed, the plaintiff paying costs.

389

Hugh Ross
vs.
John Smith.

Hugh Ross
vs.
John Pescod.

Daniel Mcintosh
vs.
MurdochMePherson.

The plaintiff appears and filed declaration.
The defendant being duly called does not appear.
This cause order to lay over till to-morrow morning.

Justus Sely
vs.
Hugh Johns.

The Sheriff returned the writ.
The plaintiff appears and enters retraxit.
The Sheriff returned the writ.
Plaintiff appears and filed declaration.
Court adjourned till to-morrow morning at 10 o'clock.

Mr. Hugh Ross
vs.
Ziba Phillips,
Thos. Sherwood,
Esq.Mr. Allan Paterson
vs.
Jared Sely.

TUESDAY, 11th DECEMBER, 1792.
The Court met pursuant to adjournment.
Present: The same Judges.

The parties being again duly called neither of them ap
pear. The Court do therefore order this suit to be dismissed,
and that the plaintiff do pay the costs that have accrued in
this action.

Charles Bennet
vs.
Thos. Stratton.

The plaintiff prays default may be entered against the John^ Barnhart
defendant in this action. George Barnhart.
The Court order the default to be entered against the
defendant. Upon reconsideration it is ordered that this
cause be dismissed from the old process, and to com
mence de novo.

The Court having seen the process in this action which
was made returnable at a term Court, when there were not
judges enough in the District to compose a term Court,
consequently there was no term Court held at the time
appointed for the return of the process in this suit. The
Court are therefore of opinion that this action is not in
existence on the old, or first process, and order that it do
commence de novo.

Justus Sely
vs.
Hugh Johns.

This action having been continued over from the term
held on the twenty-eighth day of September, which was in

Justus Sherwood,
Esq., vs.
Mr. Samuel Adams.

390

UPPER CANADA COURT EECOEDS.

the year one thousand seven hundred and ninety-one, till
the next ensuing term after the above date, which term
Court was advertised to be on the thirty-first day of Jan
uary then next ensuing from the above date, at Osna
bruck, at which time and place the defendant did appear
in pursuance of the continuation of the suit ; but there not
having been judges enough in this District to compose a
term Court at the above appointed time, there was none
held. The Court are therefore of opinion that the defendant
is discharged from the old process by his attendance and
appearance on the aforesaid thirty-first day of January,
and do therefore order that this action be commenced
de novo, and that new process do issue for that purpose.

Mr. Allan
Paterson va.
Jared Sely.

Mr. John McGlll,
of Montreal,
merchant, vs.
John McDonell,
curator to the
estate of Duncan
McDonell,deceased.

On motion and prayer of the plaintiff, and on the de
fendant being duly called and not appearing, the Court
order a default to be entered against him, and that a copy
of the same be served upon the defendant.
On motion and prayer of Mr. Eichard Wilkinson, of
Charlottenburg, merchant, it is ordered that the defendant
do be and appear before the Judges of His Majesty's Pre
rogative Court for the District of Luneburg, at the house
of Eichard Loucks, in Osnabruck, on Wednesday, the six
teenth day of January now next ensuing, then and there
to render in upon oath a just and true account of what he,
as Curator to said estate, shall have done relative to dis
posing of the property thereunto belonging and appertain
ing, and towards discharging the debt and demands against
.the same. This rule to be seiVed upon the Curator that he
may attend accordingly.
Eichard Duncan, JjCP.
J. McDonell, JjCJ*.
John Munro, J.CP.

14th JANUAEY, 1793.
At a Court of Common Pleas, held at Osnabruck, on
Monday, the fourteenth day of January, one thousand
seven hundred and ninety-three.

Justus Sherwood,
Esq., vs.
Mr. Samuel Adams,

Present: The Honourables Eichard
McDonell, and John Munro, Esquires.

Duncan, John

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant appears and says that he is not prepared
for tryal by reason that his evidence are absent and could

UPPEE CANADA COUET EECX)RDS.

391

not be brought to this term Court, and therefore prays that
this cause may be put off and eontinued over till next term
to which the plaintiff says he has no objection, wherefore
the Court do order this suit to be continued over till next
term. Default having been entered against the defendant in
the last term, but neither of the parties now appearing, it
is in consequence ordered that this cause be dismissed.
The Sheriff returned the writ.
The plaintiff appears and filed declaration and a note of
band from the defendant.
The declaration being read and the' defendant being
duly called and not appearing, the plaintiff prays default
may be entered against the defendant, which is ordered
accordingly. The Sheriff returned the writ.
The plaintiff appears and files declaration and exhibits
a power of attorney, and prays that Mr. AUan Paterson, of
MatUda, merchant, may be allowed to support his cause
under his, the defendant's power of attorney, for that pur
pose given, which the Court admit.
The defendant appears and says that he has received no
summons at the suit of the plaintiff to appear here this
day, that he is here at present on other business, and that
therefore he is not prepared for trial at this Court, and
prays that this plea may be admitted, the Court admit the
plea accordingly and discharge him this suit for the
present. The Sheriff returned the writ.
Plaintiff appears and filed declaration.
The defendant appears and makes it appear to the
Court, by the plaintiff that they settied this action
between them, wherefore the plaintiff prays a discontinu
ance of the suit, which the Court grant, on the costs being
paid. The Sheriff returned the writ.
The plaintiff appears and filed declaration and his
account against the defendant, acknowledged by the de
fendant's writing at the bottom thereof to be a just and
true account.
The defendant appears and acknowledges the debt.
The Court do therefore condemn him to pay to the
plaintiff the sum of sixteen pounds, three shiUings and
sixpence currency, with costs of suit.

Daniel Jones
vs.
Wm. & Stephen
Merrick.

Justus Sealyo
va.
Hugh Johns.

John Barnhart
vs.
George Barnhart.

.\lexander Rose
vs.
James Wilson.

Mr. Allan
Paterson vs.
Jacob Cams.
(Execution 4th
Feb'y, 1793.)

392

UPPER CANADA COURT RECORDS.

Allan Paterson
vs.
Jard Scley.
(Execution 4th
Feb'y, 1793.)

Hugh Ross
vs.
John Anahle.

The plaintiff appears and files two notes of hand
signed by the defendant, one for six pounds, five shillings,
the other for forty-six pounds, thirteen shiUings and nine-
pence, currency. The plaintiff represents to the Court
that he obtained in the term of this Court Keld on the
eleventh day of December now last past a default
against the defendant, and that as the defendant does not
appear at this time he, the plaintiff, humbly conceives him
self entitled to a judgment against the defendant, and
prays that it may be entered accordingly.
The Court having heard the merits of the suit, are of
opinion that the plaintiff is entitled to a judgment against
the defendant, and do therefore condemn the defendant
to pay to the plaintiff the sum of fifty-two pounds, eighteen
shillings and ninepence currency, with costs of suit.
The Sheriff returned the writ.
The plaintiff appears and filed declaration.
On motion and prayer of the plaintiff, it is ordered
that this cause be put off and eontinued over to the next
term.

Joseph Burton
v«.
Lewis Nadeau.

The Sheriff returned the writ.
The plaintiff filed declaration.
The defendant appears and acknowledges that he did
call the plaintiff a thief, but represents to the Court that
the notice he had to prepare for trial was too short, that
therefore he is not at present ready to plead to the issue of
this cause, and prays that the cause be put off and eon
tinued over till next term, which the Court accordingly
grant and order the same to be eontinued over tiU next
term.

Stephen Miller
vs.
Joseph Anderson.

The Sheriff returned the writ.
The plaintiff appears and files declaration, and an
account against the defendant for the sum of seventy-five
pounds, ten shillings and sevenpence currency.
The defendant appears and denies that the account is
just, neither is he guUty as set forth in the plaintiff's
declaration. By and with the consent of the parties, the Court orders
that this dispute in account be adjusted by arbitrators
mutually to be chosen by the parties, and an umpire to be
chosen if necessary, and that the arbitrators shaU be car
penters. The parties in consequence have chosen, on the
part of the plaintiff, WUliam Kay, of the Town of Corn
wall, and on the part of the defendant, Andrew MiUross,
of the Township of CornwaU, to be arbitrators in this
cause, and in case the said arbitrators cannot agree they

UPPER CANADA COURT EECORDS.

393

shall chose an umpire, the arbitrators before they enter
upon this duty to be sworn before a magistrate to do equal
justice to plaintiff and defendant, that when the arbitrators
shall have agreed either between themselves or) by an
umpire the award or umpirage shall be delivered into the
next term Court for the final approbation or disapproba
tion thereof. This rule to be served upon the arbitrators
that they may proceed accordingly.
The Sheriff returned the writ.
The plaintiff filed declaration, and an account against
the defendant for the sum of seventeen pounds, six shil
lings and ninepence currency.
The defendant appears, and for his plea says that he is
in nothing guilty as set forth in the plaintiff's declaration.
By and with the consent of parties, the Court order
this cause to be submitted to the arbitrament of William
Kay, of the Town of Cornwall, carpenter, chosen on the
part of the plaintiff, and Andrew MUlross, of the Town
ship of Cornwall, carpenter, chosen on the part of the de
fendant, and if they cannot agree upon the matter in dis
pute they shall choose an umpire, and before the arbitra
tors enter upon this duty they shall be; sworn before a
magistrate to do equal justice to plaintiff and defendant,
and that they the said arbitrators shall return their award,
or umpirage, into the next term Court, to be then and
there finaUy approved or disapproved by the judges. This
rule to be served upon the said arbitrators that they may
proceed accordingly.
The Court adjourned till Wednesday, the 16th January
instant, at 10 o'clock in the forenoon.
WEDNESDAY, 16th JANUARY, 1793.
The Court met pursuant to adjournment.
Present : The same Judges.
The Sheriff returned the writ.
The plaintiff appears and files declaration and exhibits
to the Court two notes of hand, one for fifteen pounds,
eleven shiUings and sixpence, bearing date 17th July,
1792, the other for thirty-four pounds, twelve shiUings,
bearing date 23rd July, 1792, the first signed by John
German, and the other signed by Sherwood & Bennett,
making together the sum of fifty pounds, three shiUings
and sixpence, which sum the plaintiff demands of the
defendant. The defendant appears and says for his plea that he is
not indebted to the plaintiff as is set forth in the declara
tion, which he (the defendant) prays may be inquired of.
27 A.

Stephen Miller
vs.
Samuel Anderson.

Jeremiah French
vs.
Georgei Barnhart.

394 UPPER CANADA COURT EECOEDS.
John Bradshaw, being duly sworn to give evidence in
this cause, and being asked by the Court whether he (this
deponent) was present at the time of passing the notes
exhibited to the Court by the plaintiff from the defendant
to the plaintiff.
Answer by the deponent, I was not present.
Question by the Court. — Were you present at any
other time when the plaintiff and defendant had any con
versation respecting the said notes?
Answer by the deponent. — I was, on the thirtieth day
of July now last past, at the house of the plaintiff when a
conversation happened between the plaintiff and defendant
respecting the notes now in question, where I heard the
defendant request of the plaintiff a receipt in full of all
demands, to which the plaintiff answered that if he (the
plaintiff) should receive the full amount of the notes en
dorsed by the defendant, and then in the plaintiff's posses
sion, he would give the defendant such a receipt, to which
the defendant replied : Sir, do you think I am such a fool
as to give you so much (mentioning a sum which I do not
now recollect) over and above the sum you demand of me,
for nothing, and that you should come upon me for that
sum again? In answer to which the plaintiff replied:
You may depend upon it. The defendant then said : Give
me up the notes and I will pay you your money, to which
the plaintiff returned : I have sent your notes to town, to
Mr. McGregor's, but as they are not yet gone to Montreal
upon your paying the money the notes shall be stopped.
Question by the plaintiff. — Did you hear the defendant
at that time say that he had borrowed from Tomma, an
Indian, ten pounds, out of which he wished to reserve
enough to pay you your fees as Deputy or sub-Sheriff, and
also to pay the Sheriff his fees that had accrued in a
former action between the parties in this suit?
Answer. — No.
Question by the defendant. — Did you hear the de
fendant say that he would pay the plaintiff the full amount
of the notes or the neat sum due from the defendant to the
plaintiff ?
Answer. — I understood it to be the sum due from the
defendant to the plaintiff, or the amount of an execution
against the defendant at the suit of the plaintiff in a
former action. — John Bradshaw.
Charles Bennitt, being duly sworn to give evidence in
this cause, saith that he gave to the defendant at Corn
wall, on the twenty-third day of July now last past, in
conjunction with Samuel Sherwood, and under the firm of
Sherwood & Bennitt, a note of hand for thirty-four

UPPEE CANADA COL'ET RECOEDS.

395

pounds, twelve shillings currency; twenty pounds, on
account of which he, or they, were to pay to Messrs.
Auldjo & Maitland, merchants, of Montreal, on their arriv
ing at th^t place, but on their arriving they found that
their obligation was not in the possession of Auldjo &
Maitland, and learnt that it was in the hands of a Mr.
John Plat, blacksmith, of Montreal, who| was agent for
the plaintiff, and held the note in consequence of an en
dorsement from the defendant to the plaintiff, that he
(Bennitt) offered to pay the said twenty pounds' to the
said Plat, the acceptance of which he, the said
Plat, refused unless the whole sum should be paid.
He (Bennitt) then offered to the said Plat a raft of staves,
which would have more than satisfied the note; this the
said Plat also refused, in consequence of which the note
was not paid and still remains unpaid, nor have they, the
said Sherwood & Bennitt, since been in a situation to
satisfy the same.
Question by the Court. — Did you make to the said
Mr. John Plat any promise that you would settle or pay
the said note before you left the town of Montreal ?
Answer. — I told Mr. Plat that I would not leave the
town without his knowledge if the note was not settled,
and accordingly I did not leave the town without his advice
to do so.
Question by the Court. — Had you been sued on your
arrival at Montreal for the amount of the note, would you
have then been able to pay it?
Answer. — Yes.
Question by the plaintiff : Had^ you, at the time that
Mr. Plat gave his consent for you to leave Montreal, a
sufiieiency of property at that place to satisfy the note ?
Answer.— No, but Mr. Plat knew that the property
(which was rafts) was to leave Montreal, two days before
they were taken away from that place. — Charles Bennitt.

The Sheriff returned the writ. James ciark
The plaintiff appears and filed declaration. John cafford.
The defendant appears.
The Court adjourned tiU to-morrow morning at nine
o'clock. THURSDAY, 17th JANUARY, 1793.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff filed a letter to him from Mr. John Plat, Jeremiah French
of Montreal. George Barnhart.

396 UPPER CANADA COURT RECORDS.
The defendant exhibits to the Court a receipt from the
plaintiff, viz. : Received 25th July, 1792, from Mr. George
Barnhart the sum of seventy-five pounds, all demands that
I have against him for execution issued out of the Court
of Common Pleas for the District of Montreal against the
property of the said George Barnhart, as witness my hand,
(Signed) Jeremiah Feexcii.
The Court having seen the declaration, plea, and other
exhibits filed in this cause, and heard the parties and evi
dence respectively, are of opinion, upon mature delibera
tion of the merits of the case, that there is no cause of
action against the defendant. The opinion of the Court
is founded upon the foUowing principles, viz. :
1st. Because it is a law amongst merchants that notes
tendered for payment must be indorsed to the person who
applies for payment in order to make them negotiable ; this
was not done in the present instance. On this account the
notes were not a legal tender.
2nd. And because, if this obstacle did not occur, the
want of a regular protest rendered the claim of the plain
tiff abortive.
3rd. Because the length of time between the present
ment and the return (even if tendered) admits that there
was an implied credit given to the drawers, which should
not operate to the prejudice of the defendant who endorsed
the notes.
And, lastly, because the receipt in full from the
plaintiff to the defendant warrants an opinion from this
circumstance alone that the notes were taken as absolute
and not conditional payment.
The Court do therefore dismiss the defendant from
this action with costs of suit to be taxed to him.
James Clark The plaintiff filed two advertisements, one from John
John Cafford. Cameron informing the public that he (John Cameron)
had purchased one fourth part of lot No. 20, on the south
side of the River au Raisin, which is now in dispute
between the plaintiff and defendant, and the other adver
tisement from the plaintiff, indicating his wish to dispose
of said lot and offering the same for sale.
The defendant appears and says for his plea that he is
not guilty as laid in the declaration, and that he has always
been and is now ready to give up possession of the lot in
dispute to the plaintiff upon his (the plaintiff) paying to
him (the defendant) the value of the improvements which
he has made on the said lot during his possession thereof.
The Court do order that at the end of eight months
from this day, the defendant shall give up quiet possession

UPPER CANADA COUET RECORDS.

397

of Lot No. twenty, in front of the south side of the Riviere
au Raisin, to the plaintiff, who is the legal proprietor, but
previous to this the plaintiff shall pay to the defendant
the value of his improvements on said lot, to be estimated
and determined by arbitration respectively chosen by the
parties in this suit, and in pursuance of this order they
have chosen John Mclntire and Daniel MacArthur on the
part of the plaintiff, and Daniel Campbell and John
McGruer on the part of the defendant, who shall be
sworn before a magistrate to do equal justice to plaintiff
and defendant, and in case the arbitrators above chosen do
not agree upon the matter in dispute they shall choose an
umpire, also to be sworn, and it is further ordered by
the Court that the award of the said arbitrators, or um
pirage, shall be returned into this Court at the next term
to remain as a record in this suit, and further that the
plaintiff and defendant shall pay their equal proportion of
the costs of this suit, and that the defendant shall have the
crop produced or to be produced on the said lot for this
present year. This rule to be served upon the arbitrators
that they may proceed accordingly. James Clark,
Richard Duncan, J.CP. his
J. McDoneU, J.CP. John X Cafford.
John Munro, J.CP. mark.

' i..^

25th FEBRUARY, 1793.

At a Court of Common Pleas, held at Stormont, in
and for the District of Luneburg, on Tuesday, the 26th
February, 1793.
Present: The Honourables Richard Duncan, John
McDoneU, and John Munro, Esquires.
The plaintiff appears by his agent, Justus Sherwood,
Esquire, who on behalf of the plaintiff represents to the
Court that the plaintiff obtained a default against. the de
fendant in last term, and now prays that judgment may
be entered against the defendant.
The defendant having been duly called does not
appear. In consequence of the said default the Court condemn
the defendant to pay to the plaintiff the amount of the de
fendant's note of hand, being the sum of thirteen pounds,
nineteen shiUings and threepence currency, together with
costs of suit.
The plaintiff appears and enters retraxit.

Justus Seelye
vs.
Hugh Johns.

(Execution 15th
March, 1793.)

James Clark
vs.
John Cafford.

398

UPPEE CANADA COUET EECOEDS.

Hugh Ross
vs.
John Anable.

The plaintiff appears and files note of hand of the de
fendant, whereon is a balance due to the plaintiff of the
sum of fifteen pounds, four shUlings and sevenpence.
The defendant having been duly called does not appear.
The plaintiff therefore prays default may be entered
against him, which the Court grant accordingly.

Justus Sherwood,
Esq., vs.
Mr. Samuel Adams.

The plaintiff appears in person.
The defendant appears by Mr. Antill, attorney. Mr.
Antill filed plea for defendant.
The plaintiff, saving and reserving to himself the
benefit and advantage of replying to the other matters con
tained in the defendant's plea, says for reply, that he does
and ought to maintain his action against the defendant,
and that his action is not prescribed as set forth in the
defendant's plea.
The plaintiff represents to the Honorable Court that
although he is prepared to join issue with the defendant
on the action as set forth in the plaintiff's declaration, yet
as the defendant's plea of prescription appears to be a
point in law of which the plaintiff is ignorant, he humbly
prays the Honorable Court will indulge him with time
to procure counsel.
The Court take the prayer of the plaintiff into con
sideration. Motion by Mr. Antill on the part of the defendant:
As Mr. Sherwood is not prepared with counsel to assist
him, declines speaking to the point, and prays the Court
to take into their consideration the issue joined between
the parties whether the above action is prescribed by law
or not. The Court take time to consider of the defendant's
prayer.

Hugh Ross
vs.
John Link.

Joseph Burton
vs.
Lewis Nadeau.

The Sheriff returned the writ.
The plaintiff appears and filed declaration and a note
of hand of the defendant for fgrtv-two pounds, twelve
shillings and eightpence currency.
The defendant appears and confesses that he gave the
note, and offers reasons to counteract it which the Court
cannot admit of.
They therefore condemn the defendant to pay to the
plaintiff the said sum of forty-two pounds, twelve shillings
and eightpence currency, with costs of suit.
The plaintiff appears in person.
The defendant appears in person and says that he is
now ready to defend this suit, and prays that the cause
may be tried by a jury.

UPPER CANADA COUET EECORDS.

399

The Court grant the prayer of the defendant and order
this cause to be tried by a jury and that venire do issue
for that purpose, returnable to-morrow at twelve o'clock.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears and says that he has been dis
abled by sickness and thereby has been prevented from
making up his account against the plaintiff. That the
plaintiff did not furnish him with a copy of the account
now exhibited against him, that therefore he is not pre
pared for trial, and therefore prays that this cause may be
put off tUl next term.
The Court recommend to the parties to come to a settle
ment between themselves, and order them to withdraw for
that purpose.
The parties return into court and cannot come to an
accommodation, the Court therefore take up the cause and
upon an investigation of their respective claims, find a
balance in favour of the plaintiff of eight pounds, one
shiUing and elevenpence halfpenny, which sum the Court
condemn the defendant to pay to the plaintiff with costs, as
in actions under ten pounds sterling.
The Court adjourned tUl nine o'clock to-morrow
morning.

Alexander Grant
vs.
William Brannen.

WEDNESDAY, 27th FEBRUARY, 1793.
Court met pursuant to adjournment.
Present: The same Judges.

The Court in answer to the point of law referred to
their decision respecting the prescription set forth in the
defendant's plea are of opinion that it does not apply to
this case, as the proceedings in this cause agreeable to the
records of the Court were commenced within the time pre
scribed by law, regularly handed down, and continued, and
because the parties at the last term were both present and
mutually accorded with respect to a prosecution of the
suit upon the same ground, and, moreover, the defendant
was then indulged by the Court at his own request and
by consent of the plaintiff to adjourn the cause to this
term for want of evidence, and did not then state any ob
jection respecting the prescription as now set .forth in his
plea. But, even supposing there might be a defect in the
plaintiff's declaration, the Court conceive that it ought not
to operate to extinguisli his suit, as the want of proper
counsel might readily betray him and others into errors of

Justus Sherwood
vs.
Samuel Adams.

400

UPPER CANADA COUET EECORDS.

this nature, particularly where there is professional counsel
on the one side and not on the other.
Mr. Antill, of counsel for the defendant, moves that the
plaintiff be ordered to reply instanter to the two points in
the defendant's plea remaining unanswered, unless he
wishes for time to obtain the assistance of counsel.
The plaintiff moves that time be 'granted him to obtain
counsel before he replies fully to the defendant's plea,
which is accordingly granted.
It is ordered on the motion of Mr. Antill, of counsel
for the defendant, and with the consent of the plaintiff,
personally present in Court, t;hat on thei coming of the
plaintiff's replication with sufficient proof of a copy having
been previously served on the defendant or his attorney,
that one or more commissions rogatoire do_is®ue for the
examination of such witnesses as either party may think
material who reside beyond the jurisdiction of this Court
upon interrogatories to be settled between the parties and
to be annexed to the said commissions respectively, and it
is further ordered that each party do communicate to each
other or to their attornies respectively within two months
from the date hereof the interrogatories by them intended
to be annexed to the said commissions, and that in default
of communication of such interrogatories being given by
the plaintiff within the time before mentioned such com
missions shall issue on the part of the defendant only.

Alexander Grant
vs.
John Cain.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant being duly called does not appear.
The plaintiff fUed account against the defendant and
his note of hand, and prays default against the defendant.
The Court order that default be entered againstl the
defendant.

John Barnhart
vs.
George Barnhart.

The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant appears and denies that he is indebted
to the plaintiff in any manner as set forth in the plaintiff's
declaration, and prays that he may havei time till next
term. Mr. Antill, for the plaintiff, moves that the defendant
do not have time, but that he be ordered to produce an
order given by the plaintiff to the defendant on Colonel
John Buttler for the sum demanded in the declaration,
and prays that in default thereof the defendant be con
demned to pay to the plaintiff the sum demanded in the
declaration. The Court order accordingly, and that de
fendant do eome to trial immediately.

UPPER CANADA COURT RECORDS.

401

Jacob Cams, of the County of Dundas, yeoman, being
duly sworn to give evidence in this cause, saith that he
was at Niagara in the month of September last, where he
saw Colonel John Buttler, who then told the deponent in
a conversation between them concerning the said matter
in dispute between the parties in this suit, that the said
Coloniel John Buttler had paid the order of John Barn
hart to George Barnhart, the defendant.
Question on the part of the plaintiff: Did you hear
Colonel Buttler say at the time you received the money for
a demand you had upon him in September last, that he
believed he had already paid the amount of your deinand
to George Barnhart, the defendant?
Answer. — Yes.
Mr. Antill having referred to the defendant's oath
whether he had received the order in dispute or not, he
declined taking the oath, but acknowledged to have received
the order.
Jacob Cams, being questioned by the defendant
whether the cattle sold to Colonel Buttler for which he
became indebted to the plaintiff, belong to the plaintiff or
to his father's estate ?
Answer. — They belonged to the plaintiff.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
One of the defendants, John Krysler, appears; the
other, Philip Krysler, being duly called, does not appear.
The defendant, John Krysler, acknowledges the debt.
The plaintiff filed a note of hand given jointly and
severally by the defendants, and prays judgment may be
entered against the defendant, John Krysler, and that de
fault may be entered against the defendant PhUip Krysler.
The Court admit the plaintiff's prayer, and order that
a default be entered against Philip Krysler, and condemn
the defendant, John Krysler, to pay to the plaintiff the
amount of the note of hand, being the sum of fifteen
pounds, Halifax currency, with lawful interest on said sum
from the eighth day of February in the year of our Lord
one thousand seven hundred and ninety-two tiU actual pay
ment, together with costs of suit.
The plaintiff and defendant appear and file an award
of arbitration appointed to investigate the matter in dis
pute beti^een the parties, by a rule of Court made in the
last term.
The Court having seen the award exhibited by the
parties, conceive by the wording of it that the work has
not been properly investigated. It is therefore ordered

Simeon Covllle
vs.
Philip Krysler &
John Krysler.

Stephen Miller
vs.
Joseph Anderson.

402

UPPER CANADA COURT RECORDS.

that a new rule be served on the same arbitrators couched
in words fully expressive that they are to examine the work
and make allowances for any defects or difficiencies in
the same, and fully to take cognizance of every other
matter in controversy between the said parties relative to
the business, and report by an award amended whatever
balance they may find due either to the plaintiff or de
fendant to be delivered in at the next term Gourt. The
Court further order that the parties shall reciprocaUy ex
change accounts as soon as possible for the purpose of
facilitating the business.
It is therefore ordered by and ¦with consent of both
plaintiff and defendant that this dispute between them be
adjusted by arbitrators mutually to be chosen by the
parties, and that such arbitrators shall be carpenters, in
pursuance of which they have chosen on the part of the
plaintiff William Kay, of the Town of CornwaU, and on
the part of the defendant Andrew MUlross, of the Town
ship of Cornwall, carpenters, who shall be arbitrators, to
examine into every matter respecting the grounds of the
suit now existing between the parties and all matters of
account -respecting the same. The arbitrators shaU ex
amine the work done by the plaintiff for the defendant and
make allowances for any defects and difficiencies that they
as carpenters shall find in the said work, and they shall
make such deductions from the plaintiff's wages as they
shall think necessary and just, and after they shall have
made all the necessary investigations and deductions, if
any shall be necessary and proper, they shall strike a
balance between the plaintiff and defendant and report
accordingly on their award to this Court in its next term.
And if the said arbitrators cannot agree they shall choose
an umpire, who shall be a carpenter, and who shall pro
ceed according to the power given in this rule, and return
his umpirage to this Court at the above appointed time for
the approbation or disapprobation thereof.

Stephen Miller
vs.
Capt. Samuel
Anderson.

The parties appear and produce an award of arbitra
tion conformable to a rule of Court issued out of this
Court in the last term.
The Court having seen the award exhibited by the
parties, do find that the arbitrators have awarded to the
plaintiff the sum of sevenpence currency, which sum the
defendant is condemned to pay to the 'plaintiff, with costs
as in action under the sum of ten pounds sterling.
The defendant paid the debt in court.

John Barnhart
vs.
George Barnhart.

On seeing the declaration in this cause and the ^Ue-
fendant's plea, and having heard the parties respectively

UPPER CANADA COURT RECORDS.

403

as well as the evidence, the Court are clearly of opinion
from the defendant's own confession with respect to the
reception of the orders, that he has made himself respons
ible for the amount of it, the Court therefore order and
adjudge that the defendant pay to the plaintiff the sum of
eleven pounds, five shillings currency, with costs of suit.
The Sheriff returned the venire.
The parties appear.
/ The jury impannelled and sworn to try the issue in
this cause were :

Joseph Burton
vs.
Lewis Nadeau.

1. Samuel Anderson, Esq.
2. Jeremiah French, Esq.
3. Mr. Hugh Ross.
¦I. Mr. John Beikie.
5. Mr. David Bruce.
6. Mr. Richard Warffe.
7. Mr. John Emerson.
8. Mr. Andrew Wilson.
9. Mr. Francis Clark.
10. Mr. John Smith, Sen.
11. Mr. Evan Roui.
T2. Joseph Anderson, Esq.
Evidence sworn on the part of the defendant: 1, Wil
liam Poter; 2, John McCaffery; 3, Patrick McGuire: 4,
John Grant.
The jury having heard their evidence retire to con
sider of their verdict, under charge of John Bradshaw,
baUiff. The jury having returned into court say by their fore
man, Samuel Anderson, Esquire, that they find a verdict
for the plaintiff of five shUlings damages and costs of suit,
and so they say all.
The Court confirm the verdict of the jury and con
demn the defendant to pay to the plaintiff the sum of five
shUlings for his damages and costs of suit.
The Court adjourned till to-morrow morning at nine
o'clock. THURSDAY, 28th FEBRUARY, 1793.
Court met pursuant to adjournment.
Present: The same Judges.

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant being duly caUed does not appear.

John firapey Sc
Simon Clark
vs.
Philip Krysler.

404

UPPER CANADA COURT RECORDS.

The plaintiff files a bond of the defendant for sixty
pounds currency, and pray default may be entered against
the defendant.
The Court order a default to be entered against the
defendant accordingly.

Hugh Ross
vs.
Parquhar McDonell.

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant appears in person and confesses the
plaintiffs demand to be justly due to him.
The plaintiff filed two notes of hand, both together
amounting to the sum of seventy-nine pounds, five shil
lings and one penny currency.
The Court having heard the defendant's confession of
the debt and ordered the same to be entered of record, do
condemn the defendant to pay to the plaintiff the sum of
seventy-nine pounds, five shillings and one penny currency
and interest on fifty-four pounds, three shillings and four- ,
pence of that sum from the fifteenth day of September in
the year of our Lord one thousand seven hundred and
ninety, together with costs of suit.

ParquharMcDonell vs.
Martin "Walter.

Sheriff returned the writ.
Mr. Antill appears for the plaintiff and filed declara
tion. The defendant appears in person and says that he did
enter into agreement with the plaintiff as set forth in
the declaration, but that he has done some work towards
completing and fulfilling the obligation.
Mr. Antill for the plaintiff filed a bond from the de
fendant to the plaintiff.
This cause by consent of parties is ordered to be sub
mitted to the arbitrament of Adam Snyder, of the County
of Dundas, yeoman, on the part of the plaintiff, and Adam
Empey, of the County of Stormont, yeoman, on the part
of the defendant, and in case they cannot agree it is like
wise ordered by the Court that Frederick Weaver, of the
aforesaid County of Dundas, yeoman, shall act as umpire
between them, who, after taking time to investigate the
agreement which the plaintiff has exhibited, shall ascer
tain what the value of the work is which has beeiivneg-
leeted to be done, and the damages which have accrued to
the plaintiff in consequence thereof, and shall take up any
charges which the defendant can substantiate in work, or
otherwise to counteract or reduce the demand of the plain
tiff. This rule to be served on the arbitrators, who shaU
give in their award or umpirage at the next term court
to be held in and for this district, and that the award of the

UPPER CANADA COURT RECORDS.

405

said arbitrators or any two of them shall be binding on the
parties.

The plaintiff filed affidavit to ground attachment.
The Court adjourned till next term.
Richard Duncan, J.CP.
J. McDonell, J.C.P.
John Munro, J.CP.

Simeon Covllle
vs.
Abel & James
Harrington.

21st MAY, 1793.
At Court of Common Pleas, held at Osnabruck, in
the County of Stormont, in and for the Eastern District
of the Province of Upper Canada, on Tuesday, the twenty-
first day of May, 1793.
Present: The Honourables Richard Duncan and John
Munro, Esquires.
The Sheriff returned the writ of attachment.
The plaintiff appeared and filed declaration.

Simeon Covllle
vs.
Abel & James
Harrington.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.

Simeon Covill
vs,
Stephen Mlrlck.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears.
The Sheriff returned the writ.
The plaintiff appears and filed declaration.

Hugh Ross
vs.
John Smith, Sen.

Hugh Ross
vs.
Thomas Sherwood.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendants appear.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The Sheriff returned the ¦writ.
The plaintiff appeared and filed declaration.
The Sheriff returned the writ.
The parties having been duly called do not appear.
It is therefore ordered that this cause be dismissed
with cost to be taxed to the defendant.

Robert McGregor
vs.
John & ilichael
Quin.

Robert McGregor
vs.
Robert Gordon.

Simeon Covill
vs.
Hezeklah Mosher.

Willlara Fraser
vs.
Thomas & James
Boyd. Amos McKenney
vs.
Mrs. Jean
Mcintosh.

4«6

UPPEE CANADA COUET EECORDS.

Justus Sherwood
vs.
Samuel Adams.

Hugh Ross
vs.
John AiMible.
Alexander Grant
vs.
John Cain.

The plaintiff appears in person.
The defendant appears in person.
On motion and prayer of the plaintiff, it is ordered
that the replication be filed.
The plaintiff appears and enters retraxit.
The parties, plaintiff and defendant, having been duly
called do not appear.
The Court therefore order this cause to be dismissed,
with costs to be taxed to the defendant.

Simeon Covill
vs.
Phillip & John
Krysler.

.Stepiien Miller
vs.
Joseph Anderson.

John IDmpey
& Simon Clark
vs.
Phillip Krysler.

Parquhar McIJonell vs.
Martin ¦Walter.

The plaintiff appears in person and prays that in conse
quence of a default obtained in the last term against the
clefendant, Phillip Krysler, who having been again duly
called does make default, the Court wUl order judgment
to be entered up against the said defendant, Phillip
Krysler. In this action the plaintiff having in last term ob
tained a judgment against the defendant John Krysler,
and a default against the defendant Phillip Krysler, and
the defendant Phillip Krysler not appearing at present, the
Court do therefore give the same judgment against the
defendants, jointly and severally.
The plaintiff appears in person.
The defendant appears in person.
On motion of Mr. Jacob Farand, it is ordered that he
file a power of attorney constituting him agent for the
plaintiffs and empowering him to ask judgment against
the defendant.
The plaintiffs in this action, having obtained a default
in the last term against the defendants, and the defendant
still not appearing, the Court, on prayer of the plaintiff's
agent, do condemn the defendant to pay the plaintiffs the
sum of sixty pounds currency, being the sum contained in
the bond filed by the plaintiffs in this cause, with lawful
interest on the said sum of sixty pounds from tlie nine
teenth day of February now last past till actual payment,
together with costs of suit to be taxed.
The plaintiff appears in person.
The defendant appears in person.
This cause having been submitted in the last term to
referees, who having brought in their award, the Court
find fault with the principle on which the arbitrators took
up the business, in consequence of which the Court, with
the approbation of the parties, appoint other arbitrators to

UPPEE CANADA COiET RECORDS.

407

settle all matters in controversy between the said parties
agreeable to a rule of Court in this action at the last term,
and that the persons named for this purpose shall be John
Coons and John Smith, who, if they cannot agree in their
award, will appoint an umpire and give in their award or
umpirage at this term Court.
The plaintiff filed an award of arbitration agreeable to
a rule made in this Court at the last term, and prays judg
ment thereon.
This action having been submitted to arbitration, upon
the award being produced, the Court find that each of the
accounts have been investigated and balanced, with respect
to costs the Court order that the costs accrued in this suit
shall be paid in equal proportion by the parties, plaintiff
aud defendant.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

Stephen Miller
vs.
Joseph Anderson.

WEDNESDAY, 22nd MAY, 1793.

The Court met pursuant to adjournment.
Present: The same Judges.
The parties being present in Court, the defendant
moves that a Rule of Court be made that if the plaintiff
does not within one month from this day give in his in
terrogatories to Mr. Antill, the defendant's attorney, that
then the defendant shall have liberty to proce'jd and take
his witnesses' affidavits, by a commission rogatoire, which
shall then be issued on the part of the defendant only.
The Court consider the defendant's motion as inad
missible, and on consideration of the merits of the case
determine that whereas it appears to the Court in this
cause that the want of equal counsel on the part of the
plaintiff at the last term, and the want of the parties'
attornies at this term, has involved questions which tend
more to puzzle than enlighten, on this account therefore
it is ordered that the points which retard the progress of
this suit be argued by the respective attornies at the next
terih, when the Court will then eome to a resolution to
make a rule in order to remove every difficulty in the way,
' and it is likewise ordered by the Court that the order for
the commission rogatoire in this cause obtained at the
last term be suspended for the aforesaid reasons, and that
if the attornies do not attend that the Court will, not
withstanding, proceed to put a period to this suit.

Justus Sherwood
vs.
Samuel Adams.

408

UPPER CANADA COURT RECORDS.

Simeon Covin
vs.
Abel & James
Harrington.

Simeon Covill
vs.
Stephen Merick.

Farquhar McDonell vs.
Martin ^Walter

The defendants having been duly called do not appear.
On motion and prayer of the plaintiff, it is ordered
that a default be entered against the defendant.
The defendant having been duly called does not appear.
On motion and prayer of the plaintiff, it is ordered
that a default be entered against the defendant.
Filed by the plaintiff a note of hand of the defendant
for the sum of twenty-nine pounds, eighteen shillings and
oevenpence, current money of the State of New York,
equal to nineteen pounds, four shUlings, Halifax currency'
with interest at the rate of seven per cent.
The parties appear in Court, and arbitrators agreea'ble
to a rule made yesterday in this cause, return their award
into court, which on motion of the plaintiff is ordered to
be filed.

Hugh Ross
vs.
Thomas Sherwood.

Hugh Ross
vs.
John Smith, Sen.

Robert McGregor
vs.
John & Michael
Quln.

The defendant having been duly caUed does not appear.
It IS therefore ordered, on motion of the plaintiff, that
a default be entered against the defendant.
The parties appear in Court.
The defendant says for his plea that the plaintiff's de
mand is just, as laid in the declaration.
The plaintiff filed a note of hand of the defendant and
prays judgment thereon.
The defendant appears and confesses the debt, where
fore the Court condemn him to pay to the plaintiff the
sum of fourteen pounds, three shiUings and one penny,
Halifax currency, being the amount of the defendant's
note of hand filed in this cause by the plaintiff, together
with costs of suit.
On niotion of the plaintiff, it is ordered that the de
fendants do reply to the declaration this day, and accord
ingly the defendant, Michael Quin, says for his plea that
he is in no wise guilty as set forth in the plaintiff's de
claration, and the defendant John Quin says for his plea
that he is not indebted to the plaintiff in the fuU sum as
set forth m the declaration, but confesses to have had deal
ings with the plaintiff and that there may be a balance
due from him to the plaintiff, of which he prays the truth
may be inquired.
fend^an'ts^w?*'* ^t^ "" '^^''^'"^ ^'^^^'^^ ^g^"^st «'« de-
tS of theTur'f r '"""^'l ^ ^^'^^^« ^^^ to the plain-

UPPER CANADA COURT RECORDS.

409

The defendant John Quin represents to the Court that
at the time the British Government granted compensation
to such suffering Loyalists as had lost their property by
their adherence to that Government, he (the defendant)
appointed Messrs. Dobie & Badgely to be his agents to
receive the compensation that might be allowed to him,
and that he has never had an account current from then
which ought to have been given to him by the plaintiff
who acted as an agent to the said Messrs. Dobie & Badgly,
of Montreal, merchants, and that consequently he does not
know whether there is any balance on that account due to
him or not.
The plaintiff comes forward and makes oath that the
said account current was delivered by him to the de
fendants. The defendant having been duly called does not appear.
It is therefore ordered on motion of the plaintiff that
a default be entered against the defendant.
The defendant having been duly called does not appear.
It is therefore ordered on motion of the plaintiff that a
default be entered against the defendant.
The defendants having been duly called do not appear.
It is therefore ordered on motion of the plaintiff, per
sonally present in Court, that a default be entered against
the defendants.
The Court having seen the award filed in this cause,
and the arbitrators having therein awarded to the plaintiff
the sum of twelve pounds, five shUlings, Halifax currency,
for his damages, the Court do confirm the same, and con
demn the defendant to pay to the plaintiff the said sum of
twelve pounds, five shiUings, Halifax currency, together
with costs of suit, to be taxed.
The parties having been heard fuUy on their respective
behalves the Court do order and adjudge that the de
fendants do pay to the plaintiff the sum of sixteen pounds,
one shiUing and twopence halfpenny currency, being the
sum demanded in and by the plaintiff's declaration, and
the Court do further condemn the defendants to pay to the
plaintiff the costs of this suit.
With consent of the plaintiff, personally present in
court, it is ordered that execution upon this judgment be
stayed for three months from this day.
The Court adjourned till next term.
Richard Duncan, J.C.P.
John Munro, JC.P.

Robert McGregor
vs.
Robert Gordon.

Simeon Covill
vs.
Hezekiah Mosher.

William Fraser
vs.
James & Thomas
Boyd.

Parquhar McDonell vs.
Martin Walter.

Robert McGregor
vs.
John & Michael
Quin.

410

UPPER CANADA COURT EECOEDS.

List of Names.

1. Capt. Hugh McDonell.
2. Capt. John McDoneU.
3. Capt. John McKenzie.
4. Capt. Ean'd McDonell.
5. Mr. Andrew Wilson.
6. Thos. Swan, Esq.
7. Mr. Eobert McGrigor.
8. Mr. John Biekie.
9. Mr. Eichard Warffe.
0. Mr. MUes McDonell.
11. Capt. Neil McLean.
12'. Capt. Ran'd McDonell,
R. au Raison.
13. Major Arch McDoneU.
14. Mr. Jeremiah French.
15. Mr. Eb'r Wright.
16. Mr. David Robinson.
17. Mr. Daniel Campbell.
18. Mr. PhiUip Empey.
19. Mr. Abraham Marsh.
20. Mr. John Annibal.
21. Mr. Andrew MUlross.
22. Joseph Brownell, Sen.
23. Mr. James Forsyth.
24. Mr. John Dixson.

25. Mr. George Stewart.
26. Mr. John Cadman, Sen.
27. Mr. David Jacobs.
28. Capt. Jno. Stegmann.
29. Mr. WiUiam Morgan.
30. Mr. Samuel Moss.
31. Mr. Conrad Defoe.
32. Mr. John WUson.
33. Mr. John Coons.
34. Mr. John Empey.
35. Mr. Adam Empey.
36. Mr. Wm. Empey, Sen
37. Mr. Nicholas Ault.
38. Mr. Jos. Loucks.
39. Mr. John Pescot.
40. Mr. Geo. Barnhart.
41. Mr. Nathan Putnem.
42. Mr. John McNairn.
43. Mr. Evan Royce, Sen.
44. Mr. Levy Baily.
45. Mr. Jonas Wood, Sen.
46. Mr. John Browning.
47. Mr. John Markely.
48. Mr. Frederick Wever.

UPPER CANADA EASTERN DISTRICT.
5th NOVEMBER, 1793.
At a Court of Common Pleas, held at Osnabruck, in
the County of Stormont, in and for the Eastern District
of the Province of Upper Canada, on Tuesday, the fifth
day of November, in the year of our Lord one thousand
seven hundred and ninety-three, and in the thirty-fourth
year of the reign of our Sovereign Lord, George the Third,
etc. Present: The Honorables John McDoneU and John
Munro, Esquires.

Robert McGregor
vs.
John Bryon.

The plaintiff appears, and moves the Court that he be
admitted to file his affidavit for grounding process of
attachment against the defendant. The Court admit of the
plaintiff's motion, and he accordingly filed the affidavit.
The defendant having been duly called does not appear.
The Sheriff returned the process of attachment and
summons. The plaintiff filed declaration.

UPPEE CANADA COURT EECORDS.

411

The plaintiff appears.
The defendant appears.
Ordered by the Court, that this cause be called again
to-morrow.

Charles Bennitt
vs.
Thomas Stratton.

The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant having been duly called does not appear.

William Loucks
vs.
John Storing.

On motion of Jacob Farrand, of the County of
Stormont, Esquire, agent for the plaintiff, duly appointed
by special power of attorney for that purpose, it is ad
mitted that the said power of attorney be filed, and it was
accordingly fUed.
The Sheriff returned the writ.
Jacob Farrand, Esquire, appears as agent for the
plaintiff and filed declaration.
The defendant having been duly called does not appear.
Ordered to lay over till to-morrow.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been' duly caUed does not appear,
therefore on motion of the plaintiffs it is ordered that a
default be entered against the defendant.

Terence Smith
vs.
John Man.

Wilkinson & Beikie
vs.
Joseph Falkner.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does
pear, therefore, on motion of the plaintiffs, it is
that a default be entered against the defendant.

not ap-
ordered

Wilkinson & Beikie
vs.
John McCredy.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear,
therefore, on motion of the plaintiff, it is ordered that a
default be entered against the defendant.

John Beikie
vs.
John McCredy.

The Sheriff returned the writ.
The plaintiff appeared.
The defendant did not appear.
With consent of the plaintiff, ordered 'to la>
to-morrow.

tiU

William Fraser
vs.
William Robertson

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly caUed does not appear,
therefore, on motion of the plaintiff, it is ordered that a
default be entered against the defendant.

William Fraser
vs.
Joseph Gnffla.

412

UPPER CANADA COURT RECORDS.

Joseph Robinson
vs.
John Rorbach &
CatherineRorbach.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendants having been duly called do not appeal.
Ordered to lay over till to-morrow.

Joseph Robinson
vs. .
Jacob Bonlsteel
& Christian
Bbnisteel.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendants having been duly called do not appear.
Ordered to lay over till to-morrow.

John Bass
VB.
Stephen Merick.

The Sheriff returned the writ.
The parties, plaintiff and defendant, having been duly
called, neither of them appear, it is therefore ordered that
this cause be dismissed with costs.

Thomas Pettcrs
vs.
Major Watson.

The Sheriff returned the writ.
The plaintiff appears.
Ordered to be called again to-morrow.

Ordered by the Court that such writs and causes as
were made returnable here this day and cannot be returned
by reason of the lateness of the night, shall lay over and be
returned to-morrow.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

WEDNESDAY, 6th NOVEMBER, 1793.

Thomas Fetters
vs.
Major Watson.

John Potler
vs.
Nicholas Ifllmore.

The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear,
therefore, on motion of the plaintiff, it is ordered that a
default be entered against the defendant.
The Sheriff returned the writ.
The parties having been duly called, but neither of
them appearing, it is ordered that this suit be dismissed
with costs to be paid by the plaintiff.

Joseph White
vs.
Samuel Shlpman.

Joseph "White
vs.
John McNeil.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears.
The Sheriff returned the writ.
The plaintiff appears and entered retraxit.

UPPER CANADA COURT RECORDS.

413

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear.
Therefore, on motion of the plaintiff, it is ordered that
default be entered against the defendant.

Joseph White
vs.
Josepli GrifHn.

The Sheriff returned the writ.
The parties being called, neither of them appear in
person, but the plaintiff, by an agent, prays that this cause
¦may lay over till the last day of this term without being
disniissed.

Joseph Andersoa
vs.
David Bissell.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been called does not appear in
person, but Doctor Solomon Jones, of Augusta,, appears
for him, and moves that he be admitted to file a power of
attorney consituting him agent for the defendant, which
the Court admit, and the power of attorney is accordingly
filed. Dr. Solomon Jones further represents to the Court that
he only appears this day to enter appearance for the de
fendant, who is prevented from appearing in person by
sickness in his family, and therefore prays that the Court
will put off and continue this cause over till the next term.
The Court, therefore, with consent of the plaintiff,
personally present in Court, order that this cause shall lay
over and be continued till the next term.

William Buell
vs.
Daniel Jones.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendants having been duly called, do not appear.
On motion of the plaintiff, it is ordered that this cause
be continued and lay over till the next term, and that the
defendants do appear on the second day of the said next
term and then answer to the declaration now filed.

William Buell
vs.
Marcy Buell,
executrix, and
Bemsley Buell,
executor to the
estate of Timothy
Buell, deceased.

him.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appeared.
Ordered to lay over and be caUed again to-morrow.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear.
It is therefore ordered that a default be entered against

Oliver Sweet
vs.
Feet Seelye.

Terence Smith
vs.
John Man.
Simeon Covill
vs.
Joseph Griffin.

414

UPPER CANADA COURT RECORDS.

William Fraser
vs.
¦William Robertson

William Rotaison
vs.
Jacob Cams.

John McKInivan
vs.
Henry Bolton.

Justus Sherwood
vs.
sSamuel Adams.

Simeon Covill
vs.
Abel & James
Harrington.

The plaintiff filed declaration.
The defendant appeared.
Ordered to lay over till Friday, the 8th inst.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appeared.
The Sheriff returned the writ.
The plaintiff, John McKinivan, being deceased since
the institution of thie suit, Christy McKinivan, his widow
and reliek, is allowed to appear as plaintiff and support the
suit, and accordingly she appeared and filed declaration.
The defendant appeared.
The plaintiff appears in person.
The defendant having been duly called does not appear.
It is therefore, ordered, on the motion and request of
the plaintiff, that this cause shall lay over, and be called
again on Friday, the eighth day of this present month,
November, in order that the defendant may have an oppor
tunity to appear.
The plaintiff . appears in person.
The defendants having been duly called do not appear.
The plaintiff represents to the Court that on the
twenty-second day of May now last past, he obtained in
this Honorable Court a judgment of default against the
defendant; that after having been duly called on tins day,
they (the defendants) do still continue to make default,
and that he therefore humbly prays that this Honourable
Court will proceed to give final judgment against the de
fendants for the sum demanded in his declaration, with
cost of suit.
It is therefore ordered that a jury be immediately im
panelled to try the merits of this cause, and that the plain
tiff do give the special matter in evidence to the jury, and
accordingly the jury impanelled and sworn to try the issue
of this cause were :

1.

Frederick Weaver.

1 .

Jacob Alick.

2.

Farquhar McDoneU.

8.

PhUip Walter.

3.

Peter Fetterly.

9.

Jacob Merkle.

4.

Frederick Bouck.

10.

Jacob Weagar.

5.

Jacob Garlouch.

11.

Henry Merkle.

6.

John SheU.

12.

Henry Stata.

Evidence on tlie part of the plaintiff: Doctor Solomon
Jones.

UPPER CANADA COURT RECORDS.

415

Thie jury, after hearing the evidence produced in this
cause and seeing the exhibits filed in the same, without
-retiring from the bench say by their foreman, Jacob
Weagar, that they find a verdict for the plaintiff of twenty
pounds, and so they say all, and with costs.
The Court having heard and considered the verdict of
the jury, do confirm the same and order and adjudge that
the defendant do pay the plaintiff the said sum of twenty
pounds, with costs of suit, to be taxed.
The plaintiff appears and enters retraxit.
The parties having been duly called and neither of
them appearing, it is ordered that this cause be dismissed.
The plaintiff appears in person.
The defendant having been duly called does not appear.
The plaintiff filed a note of hand, or promissory note,
of the defendant, bearing date the twenty-third day of
June, which was in the year of our Lord one thousand
seven hundred and ninety, for the sum of nineteen pounds,
five shillings and sevenpence, Halifax currency.
The plaintiff represents to the Court that in the last
term, to wit, on the twenty-second day of May now last,
he obtained a default against the defendant, that whereas
the defendant upon being again called this day does still
make default, therefore he humbly prays that this Honor
able Court will proceed to give final judgment in this
oause. The Court therefore order that a jury be immediately
impanelled to try the merits of this cause, and accordingly
the jury impanelled and sworn to try the issue of this cause
were:

Simeon Covill
vs.
Stephen Merick.

Hugh Ross
vs.
Thomas Sherwood.

Robert McGregor
vs.
Robert Gordon.

1. Alexander McDoneU
2. Jacob Dorin.
3. Peter Brouse.
4. Gideon Adams.
5. Caleb Seamen. ;
6. Joseph Loucks.

7. Henry Merkle.
8. Peter Fetteriy.
9. John SheU.
10. Henry Stata.
11. Jacob Weagar.
12. Adam Empey.

The jury having seen the exhibits filed in this cause,
without retiring from the bench, say by Gideon Adams,
their foreman, that they find a verdict for the plaintiff for
the sum of nineteen pounds, five shiUings and sevenpence,
Halifax currency, with costs, and so they say all.
The Court having heard and considered the verdict of
the jury do confirm the same, and order and adjudge that
the defendant do pay to the plaintiff the said sum of nine-

416

UPPER CANADA COURT RECORDS.

Charles Bennitt
vs.
Thomas Stratton.

teen pounds, five shUlings and sevenpence, Halifax cur
rency, with costs of suit to be taxed.
The Sheriff returned the writ.
The plaintiff appears, and filed declaration by permis
sion of the Court.
The defendant appears, and moves the Court that he
raay be permitted to file plea to the plaintiff's declaration,
and plea in abatement to the writ of attachment sued out
by the plaintiff, in this action, as also the proceedings in
an action commenced on the tenth day of March, in the
year of our Lord one thousand seven hundred and ninety-
two. The plaintiff moves that he may be permitted to file
answer to the defendant's motion, which the Court accord
ingly grant.
The Court will consider of this and give judgment
thereupon to-morrow.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

William Fraser
vs.
Thomas & James
Boyd.

Charles Bennitt
vs.
Thomas Stratton.

Oliver Sweet
vs.
Peet Seelye.

THURSDAY, 7th NOVEMBER, 1793.
Present: The same Judges.
The plaintiff appears and enters retraxit.

The Court having considered the defendant's motion
for filing plea to the declaration and plea in abatement.
and the plaintiff's answer and objections to the same being
filed, are of opinion that the plaintiff should have been
served with a copy of each of the said pleas, that he might
have prepared his answer or objections to each, and whereas
the said pleas appears to have been drawn up by counsel or
attorney, which -the plaintiff cannot be supposed to be able
to answer, having neither counsel or attorney to do it. It
would therefore be a hardship upon the plaintiff to proceed
to a judgment on the abatement in this situation of the
case. The Court do therefore grant the plaintiff's re
quest made in his answer to the defendant's motion of
yesterday, and order that this cause be put off tiU the next
term, in order that the plaintiff may obtain counsel.
The plaintiff appears.
The defendant appears and saith. that he never made
any promise to the plaintiff as set forth in the declaration,
and that he is in no manner indebted to the plaintiff, and
prays that the truth may be inquired of.

UPPER CANADA COURT RECORDS.

417

The Court do therefore order that a jury be impaneUed
to try the issue joined in this cause, and accordingly the
jury impaneUed and sworn to try the issue joined between
the parties in this cause were :

1. Alexander Rose.
2. Jacob Cams.
3. Gideon Adams.
4. Jacob Alick.
6. Henry Merkle.
6. Peter Brouse.

7. Peter Fetterly.
8. Adam Empey.
9. Joseph Loucks.
10. Alexander McDonell.
11. PhUip Walter.
12. John Merkle.

Evidence sworn on the part of the plaintiff, ¦viz. : 1,
Caleb Seamen; 2, Simeon Covill, Esquire; 3, Doctor
Solomon Jones; 4, Justus Sherwood, Esquire; 5, Allan
Paterson, Esquire.
The jury having heard the declaration and plea in this
action, and having heard the evidence and the parties re
spectively, retire to consider of the verdict under the
charge of Nicholas Mosher, bailiff.
The plaintiff appears.
The defendant having been duly called does not appear.
The jury having returned into Court say by Gideon
Adams, their foreman, that they find a verdict for the
plaintifE for the sum of twelve pounds, ten shillings, Hali
fax currency, with costs, and «o they say all.
The Court do confirm the verdict of the jury and order
and adjudge that the defendant shall pay tx) the plaintiff
the said sum of twelve pounds, ten shillings, with costs of
suit to be taxed.

Simeon CovlU
vs.
Hezekiah Mosher.

Oliver Sweet
vs.
Peet Seelye.

The plaintiff represents to the Court that he obtained a
default against the defendant in the last term, that since
the said last term he has with the defendant submitted the
cause to arbitrators, who have made an award thereupon,
which award he hath now here in court to show, and there
fore prays that the submission may be made a rule of Court
and that judgment may be entered up against the de
fendant upon the award.
The Court grant the prayer of the plaintiff and make
the submission a rule of Court, and order that. the plaintiff
. do file the award.
The plaintiff accordingly filed the award and a.pro-
.missory .note from the defendant to the plaintiff.
Whereupon the Court do order and adjudge that the
defendant do pay to the plaintiff the sum of twelve pounds,
two shillings and one penny halfpenny, being the balance
28 A.

Simeon Oovill
vs.
Hezekiah Mosher.

41i!

UPPER CANADA COURT REOORDS.

due on the sum contained in the said promissory note
and the interest thereon due, after deducting from the
amount and interest contained in the said note the sum of
five pounds, eighteen shiUings and twopence halfpenny,
allowed to the defendant by the award, and the Court
further condemn the defendant in costs of suit to be
taxed.

Terence Smith
vs.
John Man.

On motion of the plaintiff's agent the Court do order
that a default be entered against the defendant.
The Court adjourned until to-morrow at eight o'clock
in the forenoon.

FRIDAY, 8th NOVEMBER, 1793.
The Court met pursuant to adjournment.
Present: The same Judges.

Robert McGregor
vs.
John Bryan.

The plaintiff appears.
The defendant having been duly called does not appear,
therefore, on motion of the plaintiff, it is ordered that a
default be entered against the defendant.

Joseph Robinson
vs.
John Rorabach &
Catherine Rora-
bach.

Joseph Robinson
vs.
Jacob Bonlsteel &
Christian Bonl
steel.

The plaintiff appears.
The defendants appear.
On motion of the defendants, and with consent of the
plaintiff, it is ordered that this cause be submitted to
arbitration, and accordiragly the parties, plaintiff
and defendants, in this cause have mutually chosen
Justus Sherwood, Ephraim Jones, of Augusta,
Esquires, and Lieutenant Gideon Adams, of Augusta,
aforesaid, to be arbitrators, who shall meet and make an
award upon the dispute now subsisting between the parties
in this suit, which award shall be returned into court at
the next term, to remain as a record in, this suit, and
after being approved of by the judges shall be final and
binding upon the parties, plaintiff and defendants.
Joseph (his X mark) Robinson, plaintiff.
John Rodenbach.
Catherine (her X mark) Rorabach.
The plaintiff appears.
The defendants appear.
On motion of the defendants, and with consent of the
plaintiff, it is ordered that this cause be submitted to arbi
tration, and accordingly the parties, plaintiff and de
fendants, in this cause have mutually chosen Justus Sher
wood and Ephraim Jones, of Augusta, Esquires, and
Lieutenant Gideon Adams, of Augusta, aforesaid, to be

UPPER CANADA COURT RECORDS.

419

arbitrators, who shall meet and make an award upon the
dispute now subsisting between the parties in this suit,
which award shall be returned into Court at the next term
to remain as a record in this suit, and after being approved
of by the judges shall be final and binding upon the parties,
plaintiff and defendants. Joseph (his X mark) Robinson.
Jacob (his X mark) Bonlsteel.
Christian (his X mark) Bonlsteel.

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant appears, and says that he is not pre
pared for -trial, having no counsel to instruct him, and
therefore prays that time may be granted him till next
term. The Sheriff returned the writ.
The parties, plaintiff and defendant, having been duly
called neither of them appear.
It is therefore ordered that this cause be dismissed.

Charles Bennitt
vs.
Thomas Stratton.

Samuel Swerdfegei
vs.
Alexander Campbell.

The Sheriff returned the >writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear.
It is therefore ordered, on motion of the plaintiff, that
a default be entered against the defendant.

Simeon Covill
VS.
Joseph Knapp.

The Sheriff returned the writ.
The plaintiff appears and filed declaration.
The defendant having been duly called does not appear.
It is therefore ordered, on motion of the plaintiff, that
a default be entered against the defendant.

Simeon Covill
va.
Daniel Shlpman.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears.

John 'Hoople
vs.
John Storing.

The plaintiff appears. Justus sherwoo*
The defendant having been duly called does not appear, gamuei Adams.
The Court therefore order a default to be entered up
against him, and that a copy thereof be served upon him.

The plaintiff appears and prays that this cause may lay Joseph w^hit*
over and be continued tiU next term, which prayer the gamuei shipman.
Court accordingly grant.
The plaintiff filed a promissory note from the de- wiiiiam Fraser
fendant. Winiam Robertson

420

UPPER CANADA COURT REOORDS.

William Roblson
vs.
Jacob Cams.

John Hoople
vs.
John Storing.

Justus Sherwood
vs.
Samuel Adams.

The defendant appears and saith that he is not in
debted to the plaintiff as set forth in the declaration, and
prays that the truth may be inquired of.
The Court therefore order that a jury be impaneUed to
try the issue joined between the parties in this cause, and
that the special matter be given in evidence to the jury.
Accordingly the jury impanelled and sworn to try the
issue joined in this cause were :

1. Jacob Weagar.
2. Jacob Alick.
3. Jacob Cams.
4. Henry Merkle.
6. John Merkle.
6. Peter Fetterly.

7. Adam Empey.
8. Jacob Merkle.
9. Jacob Garloch.
10. Frederick Weaver.
11. Farquhar McDonell.
12. John SheU.

The jury having heard the parties respectively and seen
the exhibits filed in this cause, retire to consider of their
verdict under charge of Nicholas Mosher, baiUff.
The jury having returned into court say by Jacob
Weagar, their foreman, that they find verdict for the
plaintiff for the sum of thirty-eight pounds, one shilling
and sixpence, Halifax currency, with costs, and so they
say all.
The Court do confirm the verdict of the jury and order
and adjudge that the defendant do pay to the plaintiff the
said sum of thirty-eight pounds, one shilling and sixpence,
with costs of suit to be taxed.
The defendant appears and says that he is in no wise
indebted or owing to the plaintiff as set forth in the de
claration, and prays the truth may be inquired of.
Ordered for trial to-morrow.
The plaintiff comes here into court and says that the
defendant hath satisfied him, and moves that he may be
permitted to enter a retraxit, which is accordingly granted.
The plaintiff comes here into court in person and prays
that the suit now at issue between the plaintiff and de
fendant may on some day at the next weekly sessions in
this term be brought to a final decision, by judgment on
the default already found against the defendant, and that
the defendant be served with a copy of the default, at the
same time acquainting him with the day this Honorable
Court shall judge proper to appoint for the tryal.
The Court, upon consideration of the contempt that
the defendant has shown in not attending, and on con
sideration of the plaintiff's motion and prayer, do deter
mine that Tuesday, the twelfth day of this present month,
shall be the day on which they wUl proceed to put a period

UPPER CANADA COURT RECORDS.

421

to this tedious suit. The Court order that a copy of this
rule, with a copy of the default entered against tlie defen
dant, and a copy of the plaintiff's motion be served on the
defendant, without any loss of time.
On motion of the defendant, and with consent, of the
plaintiff, it is ordered that this cause be submitted to arbi
tration, and accordingly the plaintiff hath chosen on her
part David MacFall, of the County of GrenvUle, gentleman,
and the defendant hath chosen on his part Alexander
CampbeU, of the town of New Johnstown, Esquires, to be
arbitrators for the decision of the matter now in dispute
between them, the said parties, plaintiff and defendant,
and in case the said arbitrators cannot agree upon an
award they shall choose an umpire, and the Court do order
that the said arbitrators shall, if they can agree, make an
award in ¦writing, or, if they cannot agree, then the umpire
by them to.be chosen shall make an umpirage in writing,
which award or umpirage so made and ¦written shall be re
turned into this court at the next term to remain as a re
cord in this suit, and after the same shall have received the
approbation of the judges the said award or umpirage shall
be final and binding on the parties in this suit. This rule
to be served on the said arbitrators that they may proceed
accordingly. Christy (X) McKinivan.
Henry Bolton.
The plaintiff appears and enters retraxit.
The Court adjourned tiU to-morrow at nine o'clock in
the forenoon. SATURDAY, 9th NOVEMBER, 1793.
The Court met pursuant to adjournment.
Present : The same Judges.
The parties appear.
The Court order that a jury be impanelled to try the
issue joined in this cause, and accordingly the jury im
paneUed and sworn to try the issue joined between the
parties in this suit were : —

1. Jacob Dorin. 7.
2. Peter Brouse. 8.
3. Jacob Merkle. 9.
4. Nicholas Frymire. 10.
5. Frederick Weaver. 11.
6. Jacob Weagar. 12.

John Merkle.
Alexander Rose.
Gideon Adams.
PhiUp Walter.
John SheU.
Henry Merkle.

Christy McKinivan
widow and relick ol
John McKinivan,
deceased, and
executrix of his
last will and
testament, vs.
Henry Bolton.

William Loucks
vs.
John Storing,

WUliam Roblson
vs.
Jacob Cams.

422 UPPER CANADA COURT RECORDS.
Evidence sworn on the part of the defendant, viz.: 1,
Ezekiel Rose; 2, James Main.
The jury having heard the parties respectively ani the
evidence in this cause retire to consider of their verdict
under charge of John Bradshaw, bailiff.
The jury having returned into court say by Gideon
Adams, their foreman, that they find a verdict for the
defendant for the price of the mare, with costs of suit, and
for the plaintiff four shillings for the bridle delivered with
the mare, and so they say all.
The Court having considered the verdict of the jury do
confirm the same, and do order and adjudge that the de
fendant do pay to the plaintiff the said sum of four shU
lings, and that the plaintiff do pay costs of suit to be
taxed.
Charts Bennitt The plaintiff appears and files a note of hand.
Thomas Stratton. The defendant appears.
The Court over rule the motion and prayer of the de
fendant, of yesterday, and order that he do give in plea to
the declaration.
The defendant again moves the Court for time.
Whereupon the Court are of opinion that from the
nature of this action that no time can be granted, it being
brought upon a plain promissory note, and therefore order
that he plead instanter, and that a jury be impanelled to
try the issue.
And the defendant comes into court and says that the
note for which this action is instituted has been paid.
Whereupon the Court order a jury to be impaneUed,
and accordingly the jury impanelled to try the issue of this
cause, were: —
1. Jacob Dorin. 7. Peter Brouse.
2. Adam Empey. 8. Peter Fetterly.
3. John Merkle. 9. Alexander McDoneU
4. John SheU. 10. Henry Merkle.
5. Jacob Cams. 11. Henry Stata.
6. Jacob Alick. 13. Frederick Weaver.
The jury having heard the parties respectivdy and
seen the exhibits lUed in this cause, retire to consider of
their verdict under charge of John Bradshaw, bailiff.
The jury having returned into Court say by Alexander
McDoneU, their foreman, that they find a verdict for the
plaintiff for the sum of fifteen pounds, Halifax currency,
with lawful interest thereon, from the fifteenth day of
June, which was in the year of our Lord one thousand
seven hundred and ninety-two, and costs, and so they say
all.

UPPER CANADA COURT RECORDS.

423

The Court confirm the verdict of the jury and condemn
the defendant to pay to the plaintiff the said sum of fifteen
pounds, Halifax currency, with la^wful interest thereon,
from the fifteenth day of June, which was in the year of
our Lord one thousand seven hundred and ninety-two, and
costs of suit to be taxed.

The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear,
therefore it is ordered on motion of the plaintiff that a
default be entered against the defendant.
The Court adjourned till Monday, the 11th of
November instant, at 9 o'clock in the forenoon.

Joseph Anderson
vs.
David Bissell.

MONDAY, 11th NOVEMBER, 1793.

Present: The same Judges.
The plaintiff appears.
The defendant having been duly called does not appear.
' The plaintiff fUed a promissory note from the de
fendant, and prays that judgment may be entered up
against the defendant by default, for the sum demanded in
and by the plaintiff'si declaration.
Whereupon the Court do order and adjudge that the
defendant do pay to the plaintiff the sum of three pounds,
four shillings and sevenpence, Halifax currency, with law-
¦ ful interest thereon from the twenty-third day of Novem
ber, which was in the year of our Lord one thousand seven
hundred and ninety-two, till actual payment, and costs of
suit to be taxed.

Thomas Fetters
vs.
Major ¦Watson.

The plaintiff appears.
The defendant having been duly called does not appear.
The plaintiff filed a promissory note from the defendant
for the sum of fif teen pounds, ten shillings, and prays that
whereas the defendant at the return of the writ made de
fault which was ordered to be entered against him, and
having been duly called again on this day does still con
tinue to make default, that therefore judgment may be
entered up against him for the amount of the said note of
hand ¦with costs of suit.
Whereupon the Court do condemn the defendant to pay
to plaintiff the sum of fifteen pounds, ten shiUings, HaU
fax currency, •with costs of suit to be taxed.
The plaintiff appears.
The defendant having been duly caUed does not appear.
The plaintiff filed two promissory notes from the de
fendant, viz. : one for nine pounds, Halifax currency, and

Joseph White
vs.
Joseph Griffln.

Simeon Covill
vs.
Joseph Griffln.

424 UPPER CANADA COURT RECORDS.
the other for six pounds, like money, making together the
sum of fifteen pounds.
The plaintiff represents to the Court that he has in
this term obtained a default against the defendant in this
action, and that whereas the defendant on being duly
called this day does still continue to make default, he prays
that judgment may be entered up against the defendant
for the principal and interest contained in "the two. notes
filed in this cause.
Whereupon the Court condemn the defendant to pay
to the plaintiff the sum of fifteen pounds, Halifax cur
rency, ¦with lawful interest on six pounds thereof from the
eleventh day of February in this present year of our Lord
one thousand seven hundred and ninety-three till actual
payment, and costs of suit to be taxed.
imeon v rpj^^ plaintiff appears and filed a promissory note from
Joseph Knapp. 1}^^ defendant for the sum of twenty-nine pounds and
sevenpence, Halifax currency.
The defendant having been duly called does not appear.
The plaintiff represents tb the Court that he has ob
tained judgment of default in this term against the de
fendant, and that on his being called again on this day
does still continue to make default, that therefore he prays
final judgment may be entered up against the defendant
for the sum demanded in and by the declaration.
Whereas the plaintiff by his declaration has demanded
damages, the Court order that a jury be impanelled to try
the merits of this cause.
And accordingly the jury impanelled to try the issue
of this cause were : —

1.

John Hickey.

7.

PhUip Stata.

2.

Peter Loucks.

8.

Richard Loucks.

3.

Michael Cough.

9.

John Krysler. ,

4.

Frederick Rany.

10.

George Cough.

5.

John Coons.

11.

Conradt Snyder.

6.

James Wilson.

12.

Franois: Albrant.

The jury having heard the declaration and seen the
exhibits filed in this cause retire to consider of their ver
dict under the charge of Nicholas Mosher, bailiff.
The jury having returned into Court say by James
WUson, their foreman, that they find a verdict for the
plaintiff for the sum of twenty-nine pounds and seven-
pence, Halifax currency, with la^wful interest thereon from
the twenty-fifth day of October now last past and costs, and
so they say all.
The Court do confirm the verdict of the jury and con
demn the defendant to pay the plaintiff the said sum of

UPPER CANADA COURT RECORDS.

485

twenty-nine pounds and sevenpence, with the lawful in
terest thereon, till actual payment, with costs of suit to be
taxed. The Court adjourned till to-morrow at nine o'clock in
the forenoon.

TUESDAY, 12th NOVEMBER, 1793.
Present: The same Judges.
The plaintiff appears and files a promissory note from
thfe defendant.
The defendant having been duly called does not appear.
The plaintiff represents to the Court that he has ob
tained a default in this term against the defendant, and
that whereas the defendant on being duly called on this
day does still continue to make default, he therefore prays
that judgment may be entered up against the defendant
for the sum demanded in and by the declaration, with
costs of suit.
Whereupon the Court condemn the defendant to pay to
the plamtiff the sum of four pounds, nine shiUings and
threepence halfpenny currency, with costs of suit to be
taxed.

WiUiam Fraser
vs.
Joseph Griffln.

The plaintiff personally appears in court and represents
that whereas he obtained from this Honorable Court a
default against the defendant with a day fixed for the
hearing of this cause ; that a copy of the said default with
a copy of the rule for the, appointing the day for hearing
the cause, has been duly served upon the defendant, who
stiU neglects to appear. The plaintiff therefore prays the
Honorable Court wiU proceed on the cause at issue and
bring it to a decision agreeable to the above-mentioned
rule. This being an action for damages, the court upon con
sideration of the merits of the ease, are of opinion that the
plaintiff ought to recover damages ; but as the Court can
not know what damages the plaintiff hath sustained, it is
therefore ordered that a jury be summoned to assess the
damages in this suit, and that a venire do immediately
issue for that purpose, returnable to-morrow (the thir
teenth instant) at nine o'clock in the forenoon.
The plaintiff appears.
The defendant having been duly caUed does not appear.
The plaintiff filed a promissory note from the de
fendant, and an account against the defendant, for divers
goods, wares, and merchandise. The plaintiff represents
29 A.

Justus Sherwood
va.
Samuel Adams.

Simeon Covill
V8.
Daniel Shlpman.

4 26

UPPER CANADA COURT RECORDS.

to the Court that he hath in this term obtained a default
against the defendant, and that on his having been duly
called on this day does still continue to make default.
Wherefore he prays that judgment may be entered up
against the defendant for the sum contained in the de
claration. The plaintiff having in his declaration laid his
action for damages, the Court do therefore order that a
jury be impanelled to try' the issue of this cause, and ac
cordingly the jury impanelled and sworn to try the issue
of this cause were: —

1. Michael Cough.
2. Francis Albrant.
3. Conradt Snyder.
4. George Cough.
5. John Hickey.
6. Jacob Ross.

7. Peter Loucks.
8. James Wilson.
9. Frederick Rany.
10. John Coons.
11. John Krysler.
12. Richard Loucks.

The jury having heard the declaration and proceeding
in this cause, and having seen the exhibits filed in this
cause, retire to consider of their verdict under charge of
Nicholas Mosher, bailiff.

Joseph Anderson
vs.
David Bissell.

Simeon Covill
vs.
Daniel Shipman.

The plaintiff appears and filed a promissory note from
the defendant.
The defendant having been duly called does not appear.
The plaintiff represents to the Court that he hath in
this term obtained a default against the defendant, that
whereas on calling the defendant on this day he stUl con
tinues to make default, he prays that final judgment may
be entered up against the defendant for the sum demanded
in the declaration.
Whereupon the Court do order and adjudge that the
defendant shall pay to the plaintiff the sum of ten pounds,
seven shillings and sevenpence, Halifax currency, and law
ful interest thereon from the twenty-eighth day of June
last, with costs of suit to be taxed.
The jury having returned into court, say by John
Krysler, their foreman, that they find a verdict for the
plaintiff for the sum of fifteen pounds, eight shillings and
elevenpence halfpenny, Halifax currency, and costs, and
so they say all.
The Court confirm the verdict of the jury and condemn
the defendant to pay to the plaintiff the said sum of fif
teen pounds, eight shUlings and eleven-pence halfpenny,
Halifax currency, with costs of suit to be taxed.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

UPPER CANADA OOURT RECORDS.

427

WEDNESDAY, J3th NOVEMBEE, 1793.

Present : The same Judges.
The plaintiff appears in person.
The defendant having been duly called does not appear.
The plaintiff filed affidavit that the defendant has been
personally served with a copy of the default, and a copy of
the rule of Court appointing a day for hearing this cause.
The Sheriff returned the venire and panel of the jury.
The jury impanelled and sworn 'to try and assess the
damages in this cause were : —
J. McDonald, J.C.P.
1. Malcolm McMartin, Esq.
2. Mr. John Coons.
3. Thomas Fraser, Esq.
4. John Jones, Esq.
5. Mr. James Campbell.
6. AUen Paterson, Esq.
7. Peter Drummond, Esq.
8. Joseph Anderson, Esq.
9. Mr. William Fraser, Jun.
10. Mr. Peter Loucks.
11. Mr. James WUson.
12. WiUiam Fraser, Esq.
The jury having seen the proceedings and the exhibits
filed in this cause, retire to consider of their verdict, under
charge of Nicholas Mosher, baUiff.
The jury having returned into court say by Joseph
Anderson, Esquire, their foreman, that, the defendant not
appearing to support his accusation against the plaintiff,
the jury are unanimously of opinion that the plaintiff is
not guilty, and award for the said plaintiff five hundred
pounds damages, with costs of suit, and so they say all.
The Court do confirm the verdict of the jury and con
demn the defendant to pay to the plaintiff the said sum
of five hundred pounds, with costs of suit to be taxed.
The Court adjourned till next term.
J, McDonell, J.C.P.
John Muneo, J.C.P.

Justus Sherwood
vs.
Samuel Adams.

The words —
that the plaintiff
Interlined.J. McDonell, J.O.P.

17th JANUARY, 1794.
At a CouHT OP Common Pleas, holden at the Town of
Cornwall, in and for the Eastern District of the Province
of Upper Canada, on Friday, the seventeenth day of Jan-

428

UPPER CANADA COURT REOORDS.

Rice Honeywell
vat
Ezekiel Splcer.

Allan Paterson
vs.
EMward Stocks.

Richard Wilkinson
vs.
Christian Dille-
bachy.

Richard Wilkinson
vs.
David Jacob.

Simeon Covin
vs.
Truelove Butler.

Donald McLean
V3.
Alexander McDonell.

Robert McGregor
vs.
John Bryan.

uary, in the year of our Lord one thousand seven hundred
and ninety-four.
Present: The Honorables John McDonell and John
Munro, Esquires.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear.
The plaintiff filed a written obligation from the de
fendant to him, bearing date the first day of January, in
the year of our Lord one- thousand seven hundred and
ninety-three, and moves the Court that a default may be
entered against the defendant, whereupon the Court do
order that a default be entered against the defendant.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear.
Wherefore upon motion and prayer of the plaintiff, it
is ordered by the Court that a default be entered np against
the defendant. The plaintiff filed four notes of hand, given
by the defendant as set forth in the declaration.
The Sheriff returned the writ.
The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit, which the Court accord
ingly grant.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears.
The plaintiff moves the Court that he may be per
mitted to enter a retraxit of this suit, which the Court
accordingly grant.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear,
wherefore on motion and prayer of the plaintiff, it is
ordered that a default be entered against the defendant,
and that this cause be continued over till the next term.
The Sheriff returned the writ.
^ The plaintiff and defendant having been duly called,
neither of them appear, it is therefore ordered that this
cause be dismissed.
The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit of the suit, which the Court
accordingly grant.

UPPEE CANADA COURT RECORDS.

439

The plaintiffs appear, by Mr. John Beikie, one of the
partners of the said firm of Wilkinson & Beikie, and move
the Court that he may be permitted to enter a retraxit of
this suit, which the Court accordingly grant, and order this
cause to be dismissed.
The plaintiff appeared and filed their account against
defendant. The defendant having been duly called does not appear.
Whereupon the plaintiffs represent to the Court that
they obtained a default against the defendant in the last
term, and whereas the said defendant does stiU continue to
make default, they, the said plaintiffs, therefore humbly
pray that final judgment may be entered up against the
defendant for the sum demanded in and by the declaration,
with the costs accrued in this suit.
Ordered to lay over till to-morrow.

Wilkinson &
Beikie VS.
Joseph Falkner.

Wilkinson &
Beikie vs.
John McCredy,

The plaintiff appeared in person.
The defendant appeared in person.
Ordered that this cause be set down and continued over
for hearing on Monday next, the twentieth instant.
The plaintiff appears by his agent, Jacob Farrand,
Esquire. The defendant having been duly caUed does not appear.
Ordered by the Court that this cause be continued over
and called again on Monday next, the twentieth January
instant. On motion of Joseph Anderson, of Augusta, Esquire,
he is permitted to file a power of attorney constituting him
agent for the plaintiff, and he is allowed by the Court to
appear as such.
The defendant having heen duly caUed does not appear,
wherefore on motion and prayer of Joseph Anderson,
Esquire, agent for the plaintiff, it is ordered that default
be entered up against the defendant.
The Court adjourned tiU to-morrow at ten o'clock in
the forenoon.

Charles Bennitt
vs.
Thomas Stratton.

Terence Smith
vs.
John Man.

Joseph White
vs,
Samuel Shipman.

SATURDAY, 18th JANUARY, 1794.
The Court met pursuant to adjournment.
Present : The same Judges.
The plaintiff appears and prays that he may be per
mitted to enter a retraxit of this cause, which prayer the
Court accordingly grant, and order that this suit be dis
missed.

William Buell
vs.
Daniel Jones.

430

UPPER CANADA COURT RECORDS.

William Buell
vs.
Mercy Buell,
executrix, and
Bemsley Buell,
executor to the
estate of the late
Timothy Buell,
deceased.

The plaintiff appears in person.
The defendants having been duly called do not appear,
therefore on motion and prayer of the plaintiff, it is.
ordered that default be entered up against them.

John Beikie
vs.
John McCredy.

The plaintiff appears in person.
The defendant having been duly called does not appear.
Ordered by the Court that this cause lay over and be
called again on Monday next.

Christy Mac-
Klnlvan vs,
Henry Bolton.

Wilkinson &
Beikie vs.
John McCredy.

Ordered by the Court to lay over and be called on Mon
day next, the twentieth instant.
Ordered by the Court to lay over till Tuesday, the
twenty-first instant.
The Court adjourned till Monday next, the twentieth
instant, at ten o'clock in the forenoon.

Allan Paterson
vs.
Bdward Stocks.

MONDAY, 20th JANUARY, 1794.
The Court met pursuant to adjournment.
Present: The same Judges.
The plaintiff appeared in person.
The defendant having been duly called does not appear.
The plaintiff represents to the Court that whereas he
has obtained a default against the defendant, in the first
week of this term, and whereas the said defendant upon
being duly called on this day does still continue to make
default, by not appearing, he the plaintiff therefore humbly
prays that this. Honorable Court will order final judg
ment to be entered up against the defendant for the sum
demanded in and by the declaration.
Whereupon the Court do order that a jury be inlpan-
elled to try the merits of this cause, and accordingly the
jury impaneUed and sworn to try the merits of this cause
were: —

1. Edward Perry.
2. William Bruce.
3. Joseph Criderman.
4. Jonah Wood.
5. Nicholas Sillimson.
6. James Fitchet.

7. John Smith, Jun.
8. George Mitchei.
9. Robert McGregor.
10. Joseph Fields.
11. Crist. Gallinger.
12. Peter Emer.

The jury haying seen the exhibits filed in this cause,
and having heard the plaintiff in support of his declara
tion, without retiring from the Bench, say by their fore^

UPPER CANADA COURT RECORDS.

431

man, Robert McGregor, that they find a verdict for the
plaintiff for the sum of twenty-two pounds, fifteen shil
lings, Halifax currency, with costs of suit, and so they say
all. The Court having heard and seen the verdict of the
jury, do confirm the same and condemn the defendant to
pay to the plaintiff the sum of twenty-two pounds, fifteen
shillings, Halifax currency, with costs of suit to be taxed.
The plaintiff appeared in person.
The defendant having been duly called does not appear.
The plaintiff filed a note of hand from the defendant,
and represents to the Court that whereas he (the plaintiff)
did obtain a default against the defendant in the last term,
and whereas the said defendant, upon being duly called
on this day, does still continue to make default, by not ap
pearing, he (the plaintiff) therefore humbly prays that this
Honorable Court will order final judgment to be entered up
against the said defendant for the amount of the said note,
with la^wful interest as mentioned in the face of the said
note. Whereupon the Court do condemn the said defendant
to pay to the plaintiff the sum of seven pounds, ten .shil
lings and 'sevenpence, Quebec currency,- with la^wful in
terest thereon from the thirteenth day of August, in the
year of our Lord one thousand seven hundred and ninety-
two, tUl actual payment, together with costs of suit to be
taxed.

John Beikie
vs.
John McCredy.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears and confesses that he is in
debted to the plaintiff as set forth in the declaration, and
confesses judgment in this suit.
The plaintiff filed a promissory note from the de-,
fendant, and prays that final judgment may be entered up
against the defendant.
Whereupon the Court, having considered the confession
of the defendant, do order and adjudge that he, the said
defendant, do pay to the plaintiff the sum ol eight pounds,
fifteen shillings and tenpence halfpenny, Quebec currency,
with lawful interest thereon from this day till actual pay
ment, together with costs of suit to be taxed.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly caUed does not appear.
The plaintiff filed an account current with the
defendant.

Richard Wilkinson
vs.
John MacGrlgor.

Richard Wilkinson
vs.
William Falkner.

432

UPPER CANADA COURT RECORDS.

On motion and prayer of the plaintiff, it is ordered
that a default be entered up against the defendant.

Richard ¦Wilkinson
vs.
William Falkner.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration, and a pro
missory note of the defendant, bearing date the second day
of February, in the year of our Lord one thousand seven
hundred and ninety.
The defendant having been duly called does not appear.
Whereupon, on motion and prayer of the plaintiff, it
is ordered that a default be entered up against the de
fendant.

ChristyMacKinivan vs.
Henry Bolton.

Ordered to lay over and be called again to-morrow.

John Hay
vs.
Alexander Grant.

The Sheriff returned the writ.
The plaintiff appears and files declaration.
The defendant appears and acknowledges that he is
justly indebted to the plaintiff in the sum demanded in
and by the declaration.
The plaintiff filed a promissory note of the defendant,
and prays that final judgment may be entered up against
the defendant for the sum demanded in and by the
declaration. Whereupon the Court in consideration of the de
fendant's acknowledgement of the debt, do condemn him to
pay to the plaintiff the sum of three pounds, eighteen shil
lings and fourpence halfpenny, Quebec currency, with costs
of suit to be taxed.

Terence Smith
vs.
John Man.

The plaintiff by his agent, Jacob Farrand, Esquire,
moves the Court, that whereas the Court were pleased to
grant a default against the defendant in the last term,
and whereas he (the said defendant) has not appeared,
either by an agent, an attorney, or in person at this term,
that therefore final judgment may be entered up against
the said defendant.
Order by the Court to lay over till to-morrow.

Charles Bennitt
vs.
Thomas Stratton.

The plaintiff appeared.
The defendant appeared and moves the Court that he
be permitted to file a plea, in abatement of the writ of at
tachment, filed by the plaintiff in this suit in the last term,
which motion the Court admit, and accordingly the said
plea in abatement is filed.
The plaintiff filed answer to the plea in abatement.

UPPER CANADA COURT RECORDS.

433

The defendant filed replication to plaintiff's answer to
the plea in abatement.
The Court adjourned for two hours.
The Court met pursuant to adjournmen*
Present: The same Judges.
The Court with respect to the law-issue, raised in this
suit by the plea in abatement, the plaintiff's answer thereto
and the defendant's replication to the answer, are of
opinion that the matter advanced by the defendant is not
euflScient to warrant the quashing the writ of attachment,
and therefore order that the defendant do plead to the
declaration. And accordingly the defendant filed plea to the merits.
The plaintiff filed replication.
The Court adjourned till to-morrow at ten o'clock in
the forenoon.

Charles Bennitt
vs.
Thomas Stratton.

TUESDAY, 21st JANUAEY, 1794.
The Court met pursuant to adjournment.
Present : The-same Judges.
The plaintiff and defendant both appeared in court
and say they have mutually agreed between themselves to
submit the decision of this, their suit, to arbitration, and
therefore together, they move and pray the Court that
they, the said parties, may be permitted to withdraw the
action, to be submitted as aforesaid, which prayer the
Court do acquiesce in and grant. And accordingly, he,
the said Charles Bennitt, the plaintiff, hath chosen on his
part Richard Wilkinson, of Charlottenburg, Esquire, and
Andrew Wilson, of the Town of Cornwall, Esquire, and he,
the said Thomas Stratton, the defendant, hath chosen on
his part Mr. Robert MacGregor, of Cornwall, aforesaid,
merchant, and Mr. John Emerson, of Cornwall, aforesaid,
to be arbitrators to this suit, to arbitrate and decide upon
all matters, differences, and controversies relative to and
respecting this suit, now existing between the said parties,
plaintiff and defendant, which said arbitrators shall meet,
for the above purpose, on some convenient day, by them
selves to be appointed, between this and the next ensuing
term, and thereof and every part thereof as aforesaid to
decide and award, which award shall be made in writing
under the hands and seals of the said arbitrators, and re
turned by the parties or either of them, into this court, on
the second day of the next ensuing term, and after the
said award, so to be made, •written, signed, sealed and

Charles Bennitt
vs.
Thomas Stratton.

434

UPPER CANADA COURT RECORDS.

ChristyMacKinivan vs.
Henry Bolton.

Wilkinson &
Beikie vs.
John McCredy.

returned, as aforesaid, shall have received the approbation
of the judges of this Court, the same award shall then be
entered of record in this suit, and be final and binding on
the aforesaid parties, the plaintiff and defendant. And in
case the aforesaid arbitrators or the greater number of
them, do not agree upon an award, then they, the afore
said arbitrators, shall choose an umpire, who shaU, after
having been duly chosen by the arbitrators as aforesaid,
solely, be vested with the same powers and authorities as
are herein before given to the arbitrators aforesaid. And
in case the arbitrators shall choose an umpire as aforesaid,
he, the said umpire so to be chosen, as aforesaid, shaU make
his umpirage in writing under his hand and seal, and the
same to be returned into this Court, on the second day of
the next ensuing term, in the same manner as in case
of an award is directed to be done, which said umpirage,
in case there shall be one made, after it shall have received
the approbation of the judges of this court, shaU be en
tered of record in this suit, and be final and binding on
the aforesaid parties, plaintiff and defendant. And the
Court do order that the said arbitrators, and the said um
pire, in case there shall be one chosen as aforesaid, before
they, or any of them, enter upon their arbitration, or
umpirage, shall be duly sworn by some Justice of the
Peace for this Eastern District, not being one of the arbi
trators, to do equal justice, according to the best of their
understanding and abUities to the aforesaid parties, plain
tiff and defendant, in this cause. This rule to be served,
by a copy thereof, on the arbitrators, that they may pro
ceed accordingly. Charles Bennitt, plaintiff.
Thomas Stratton, defendant.
This cause having by the mutual consent of the parties
been submitted to arbitration under a rule of Court made.
in last November term, and the arbitrators having returned
their award into court at this term agreeable to the above-
mentioned rule, the Court having examined and maturely
considered the said award, do approve of and confirm the
same, except as far as the said award relates to or compre
hends the costs which may have accrued in this suit,
which said costs shall be taxed by the Court, and after
the said costs shall be taxed by the Court the same shall be
paid agreeable to the award, for so much as the Court
shall find reasonably to allow, the said award ordered to be
filed with the above exception.
The Court having considered the prayer of the plain
tiffs and the non-appearance of the defendant, either by

UPPER CANADA COURT RECORDS.

435

himself or by an agent, do order and adjudge that the
defendant shall pay to the plaintiffs the sum of two pounds,.
three shillings and threepence, Quebec currency, with costs
of suit to be taxed.

The Court, in answer to the motion and prayer made
yesterday by the plaintiff's agent, are of opinion that the
defendant ought to have been made acquainted by the
plaintiff, or his agent, with the suit instituted against
him, and as no such notice appears to have been given,
the Court do therefore order that this cause be continued
over till the next term.

Terence Smith
vs.
John Man.

The cause having been submitted to , arbitration, under
a rule of Court made in the last term, which rule directed
that the award should be returned into court at this term,
which has not been done, and the parties having been duly
called and neither of them appearing, the Court do there
fore order this cause to be dismissed, and condemn the
plaintiff in the costs to be taxed.
This cause having been submitted to arbitration, under
a rule of Court made in the last term, which rule directed
that the award should be returned into court at this term,
which has not been done, and the parties having been duly
called and neither of them appearing, the Court do there
fore order this cause to be dismissed, and condemn the
plaintiff in costs to be taxed.
The Court adjourned till next term.
J. McDonell, J.CP
John Muneo, J.CP.

Joseph Roblson
vs.
John Rorabach and
Catherine
Rorabach.

Joseph Roblson
ve.
Jacob Bonlsteel
and Christy
Bonlsteel.

11th APRIL, 1794.
At a Couet of Common Pleas, held at New Johns-
to^wn, in and for the Eastern District of the Province of
Upper Canada, on Friday, the eleventh day of AprU, in
the year of our Lord, one thousand seven hundred and
ninety-four. Present: The Honorables John MacDonell and John
Munro, Esquires.
The Sheriff returned the writ.
Ordered to be called again on Tuesday next.
The Sheriff returned the writ.
The plaintiff appears and filed declaration.

Thomas Bluard
vs.
Isaiah Cain.
James Breaken-
rldge vs.
Reuben Motts.

436

UPPER CANADA COURT RECORDS.

The defendant appears and denies that he is indebted
to the plaintiff in the manner as set forth in the declara
tion. Ordered to be set down for trial on Tuesday next.

David Cain
vs.
BertholomewCarlej'.

The Sheriff being called upon to return the writ, says
that it ¦was never delivered to him.
And the parties having been duly called neither of them
appear. It is therefore ordered that this cause be discharged
and dismissed.

Joseph -Anderson
vs.
Richard Hope.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly caUed does not appear.
Wherefore it is ordered on motion of the plaintiff, that
a default be entered up against the defendant.

Daniel Shipman
vs.
Thomas ¦Wood.

The Sheriff returned the ¦writ.
The parties, plaintiff and defendant, having been duly
called, and neither of them appearing, it is therefore
ordered by the Court that this suit be dismissed with costs
to the defendant.

Daniel Shipman
vs.
Joel Stone.

The Sheriff returned the ¦writ.
The parties, plaintiff and defendant, having been duly
eaUed and neither of them appearing, it is therefore
ordered by the Court that this suit be dismissed with
costs to the defendant.

John Levingston
vs.
JohnPottiar.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant having been duly called does not appear,
wherefore, on motion of the plaintiff, it is ordered that a
default be entered up against the defendant.

John Levingston
vs.
John Adam
Stinger.

The Sheriff returned the writ.
The plaintiff appeared and fUed declaration.
The defendant having been duly called does not appear.
Wherefore it is ordered by the Court, on motion of the
plaintiff that a default be entered up against the defendant.

A'ernueil OLorimler
vs.
John Levingston.

The Sheriff returned the writ.
The plaintiff appears, and moves the Court that he may
be permitted to enter a retraxit, which the Court grant,
and a retraxit is accordingly entered.

UPPER CANADA COUET RECORDS.

437

The Sheriff returned the writ.
The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit of this suit, which the
Court grant, and a retraxit is accordingly entered.
The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appeared, moves the Court that this
cause be put off till next term as he cannot be prepared
to eome to trial iri this term for want of evidence.
The Court, in answer to the defendant's motion, are of
opinion that the reasons assigned by the defendant are not
suflScient for putting off the trial and therefore order him
to plead to the merits, and that he do enter his plea on
Tuesday next, of which the defendant is to take notice.
The Sheriff returned the writ.
The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit of this suit, which the
Court grant, and a retraxit is accordingly entered.
The Sheriff returned the writ.
The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit of this suit, .which the
Court grant and a retraxit is accordingly entered.
The Sheriff returned the ¦writ.
Nicholas Mosher, constable, appears and represents to
the Court that the plaintiff was obliged to leave the Court
house to-day on account of being very sick, and therefore
on the part of the plaintiff prays that this cause may be
called again to-morrow.
The defendant being present in court agrees to the
prayer made on the behalf of the plaintiff.
Wherefore the Court do order that this cause be con
tinued over and called again to-morrow.
The Sheriff returned the writ.
The plaintiff having been caUed, Nicholas Mosher, con
stable, appears and represents to the Court that the plain
tiff was obliged to leave the Court-house to-day on account
of being very iU, and on the part of the plaintiff prays that
this cause may be called again to-morrow.
The defendant having been duly called does not appear.
The Court, in consideration of the prayer made by
Nicholas Mosher on behalf of the plaintiff, do order that
this cause be continued over and called again to-morrow.

Vemuell Lorimier
vs,
Wtlltam Robinson.

VerneuU torlmlar
vs.
Danlel Smith.

VerneuU Lorimier
Major Watson

Verneuii Lorimier
V9.
Benjamin Deckers.

Simeon Coville
vs.
Oliver Sweet.

Slmeoa CovUla
vff.
Joseph Whlta.

438

UPPER CANADA COURT EECORDS.

-William Scott
vs.
William Barton,
Josepli Barton and
John Barton.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendants appear, and the said WiUiam Barton,
one of the defendants, moves the Court that he may be per
mitted to file his plea, which motion the Court grant, and
the. plea was accordingly filed.
The Court take time to consider of the issue raised by "
the declaration and plea filed in this cause, and will decide
thereon on Monday next.

Joseph Forsyth
& Co. vs.
Hugh Munro, Esq.

The Sheriff returned the writ.
Jacob Farrand, Esquire, appears on the part of the
plaintiffs and prays that he may be permitted to file a
power of attorney constituting him agent for the plaintiffs,
which prayer the Court admit, and the power of" attorney
was accordingly filed. Mr. Farrand, as agent for the
plaintiffs, filed declaration.
The defendant appeared.
Ordered by the Court that this cause be called again
to-morrow. The Court adjourned till to-morrow at nine o'clock in
the forenoon.

SATURDAY, 12th APRIL, 1794.
The Court met pursuant to adjournment.
Present: The same Judges.

Justus Sherwood
vs.
Samuel Adams.

Personally appeared the defendant, Samuel Adams, and
filed motion for an appeal of this suit.
The Court take time till Monday next to consider of
the same.

Charles Bennitt
vs.
Thomas Stratton.

The plaintiff appeared and filed a certified copy of an
award of the arbitrators appointed in this cause by rule of
Court made in the last term.
The plaintiff moves the Court that he may be permitted
to bring forward evidence to prove that the original award
has been stolen or maliciously destroyed, as set forth in the
certified copy by him filed.
Which motion the Court admit and order the evidence
to be brought forward accordingly.
Whereupon personally appear Roderick MacLeod, of
the County of Glengarry, potash boiler, and being sworn
to give evidence in this suit deposeth and saith, that some
time in the month of March now last past, Charles
Bennitt, the plaintiff, came to his (the deponent's) house
and requested that the deponent would go with him to the
house of one Angus MacDonell, to be present at some

UPPER CANADA COURT RECORDS.

439

settlement between the plaintiff and defendant, which he
did, and during the time he (this deponent) was at the
house of the said McDoneU, he saw and read the original
award made in this cause, which is alluded to by the plain
tiff in his motion, and which was in substance as nighly
as he can recollect, the same as that which is now delivered
to this Court. — Roderick McLeod.
Angus MacDonell, of the County of Glengarry,
tavern-keeper, being duly sworn to give evidence in this
cause, deposeth and saith that on Tuesday, the twenty-
fourth day of Marcii now last past, the plaintiff, Charles
Bennitt, and the defendant, Thomas Stratton, came to his
house and entered upon some business relative to the suit
depending between them, and during the time that they
the said parties were at his house, he (this deponent)
heard the plaintiff read a paper which the plaintiff called
an award, which paper contained, as he heard it read,
nighly as he can recollect, the same substance as the cer
tified copy filed by the plaintiff in this cause. And this
deponent further saith that he is one of the witnesses
whose names were subscribed to a certain written paper,
wherein the defendant acknowledges the delivery of the
staves and all the other articles agreeable to the tenor of the
award, which said written paper he, this deponent, the
defendant deliver to the plaintiff. his
Angus X MacDonell.
mark.
Catherine MacDonell, wife of Angus MacDonell, of
the County of Glengarry, tavern-keeper, being duly sworn
to give evidence in this cause, deposeth and saith that on
the evening of the twenty-fourth day of March now last
past, the plaintiff delivered to her several papers, which
she took and laid upon a table in a different room from
that in which she received them, but on being asked the
next morning by the plaintiff for the papers she went to
look for them, and the papers were gone, and she has
never been able to find them. her
Catherine X MacDonell,
mark.
The plaintiff appeared.
The defendants appeared, and move the Court that they
may be permitted to file plea in abatement of this suit,
which motion the Court admit, and the defendants accord
ingly filed plea in abatement.
In answer to the issue raised by the declaration and
plea in abatement filed in this cause, the Court are of

William Buell,
Esq., vs.
Mercy Buell,
executrix, and
Bemsley Buell,
executor of the
last will and
testament of
Timothy Buell,
deceased.

440

UPPER CANADA COURT RECORDS.

opinion that the matter advanced by the defendants is not
suificient to warrant the dismission of this sxut, and there
fore order that the defendants do plead to the merits.

Rice Honeywell
va.
Ezekiel Splcer.

The plaintiff appears and prays that he may be per
mitted to enter a retraxit of this suit, which prayer the
Court grant, and the retraxit is accordingly entered.
On motion of the plaintiff, it is ordered that the bond
filed by him in this, at the last term, be returned to him
by the Clerk.

William Buell,
Esq., vs.
Mercy Buell,
executrix, and
Bemslee Buell,
executor to the
last will and
testament of
Timothy Buell,
deceased.

The parties, plaintiff and defendants, being present in
court, move that they may be permitted to submit the de
cision of their suit to arbitration, which prayer the Court
grant, and accordingly the parties plaintiff and defendants
have mutually chosen, agreed and consented to Solomon
Jones, of Augusta, surgeon, John Jones, of Augusta,
Esquire, Asa Landen, of Augusta, yeoman, and James
Breakenridge, of Elizabethtown, Esquire, to be arbitra
tors in this cause, to arbitrate, award, decide upon, and
finaUy to finish and determine, all matters and things
respecting, concerning, or any wise relating to the suit now
depending between the said parties, plaintiff and de
fendants. And the said arbitrators shall meet on some
convenient day by them to be appointed between this day
and the next ensuing term of this Court, and they or the
greater part of them shall make an award in writing under
their hands and seals, and shall inclose the same and de
liver it to the parties, to be by them returned unopened,
into this Court on the second day of the next ensuing
term, and after' the said award shall have been approved by
the judges of this Court, or any two of them, the same shall
be final and binding on the said parties, plaintiff and de
fendants, and in case the said' arbitrators cannot agree
upon an award, they or the greater part of them shall
choose an umpire, who, by mutual consent of the said
parties, shall be vested with the same powers and authori
ties as are herein before given to the before named
arbitrators, and the said umpire so to be chosen (in case
there shall be one chosen) shall make, ¦write, seal and de
liver his umpirage in the same manner as is directed to
be done in case of an award, and the said umpirage, in
case there shall be one made, shall be returned into this
court at the time and in the same manner as is directed
to be done in case there shall an award be made by the
aforesaid arbitrators, which umpirage in case there shall
be one made, after the same shall have received the ap
probation of the judges of this court, or any two of them,

UPPER CANADA COURT RECORDS.

441

shall be final and binding on the aforesaid parties, plain
tiff and defendants. And the Court do order that the said
arbitrators, or umpire in case there shall be one chosen,
shall be sworn to do justice, to the best of their judgment,
to the said parties, plaintiff and defendants.
Wm. Buell, plaintiff.
Marcy Buell and Bemslee Buell, defendants.

The plaintiff appears and moves the Court that he may
be permitted to enter a retraxit of this suit, which the
Court grant, and a retraxit is accordingly entered.
PersonaUy appeared in open court, Henry Bolton, the
defendant, and made oath upon the Holy Evangelists of
Almighty God that he personally demanded of Christian
MacKinivan the amount of the sum awarded by certain
arbitrators in this suit appointed and nominated by the
mutual consent of .the parties, under a rule of this Court
made in last November term, which sum she, the said
Christy MacKinivan did not pay; and that the same is
stm due and owing to him, the said Henry Bolton.
Henry Bolton.

Simeon Covllle
vs.
Truelove Butler.

ChristyMacKinivan vs.
Henry Bolton.

The plaintiff appeared in person and moved the Court
that he may be permitted to file his declaration.
The Court admit of the plaintiff's motion and he
accordingly filed declaration.
The defendant appears, and says that he is not pre
pared to come to trial, and therefore prays that this cause
may be put off and continued over till the next term.
The Court order that this cause be called again on
Tuesday next, and that the defendant shall then give his
reasons for praying for an adjournment of the suit.
The plaintiff appears and moves the Court that he may
be permitted to file his declaration.
The Court admit of the plaintiff's motion, and he ac
cordingly filed declaration.
The defendant having been duly called does not appear.
Wherefore, on motion of the plaintiff, it is ordered that
a default be entered against the defendant.
Mr. Jacob Farrand appears as agent for the plaintiffs.
The defendant appears.
The plaintiffs, by their agent, move the Court that the
defendant may be ordered to file plea to the declaration.
The defendant represents to the Court that he is not
prepared to answer to the declaration, and cannot be pre-

Simeon Covllle
vs.
Oliver Sweet.

Simeon Oovllle
vs.
Joseph White.

Joseph Forsyth
& Co., vs.
Hugh Munro, Esq.

442

UPPER CANADA COURT RECORDS.

pared to come to trial in this term, and therefore prays this
cause may lay over till the next term.
The Court order that this cause be called again on
Tuesday next, and th^t the defendant shall give his reasons
for praying an adjournment, in writing, to be filed in
this cause.
The Court adjourned till Monday next at 10 o'clock in
the forenoon. MONDAY, 14th APRIL, 1794.
The Court met pursuant to adjournment.

Present: The Honorables
Munro, Esquires.

John MacDonell and John

John Parlow
vs.
Alexander Campbell.

John Parlow
vs.
Jacob Waggoner.

Charles Bennitt
vs.
Thomas Stratton.

Terence Smith
vs.
John Man.

The Sheriff returned the writ.
The plaintiff appeared and filed declaration.
The defendant appears, and represents to the Court
that he is not prepared for trial, and therefore prays that
this cause may be put off and continued over till the next
ensuing term. With the consent of the plaintiff it is
ordered that this cause be put off till the second day of the
next ensuing term.
The Sheriff returned the writ.
The pkintiff appears and prays that he may be per
mitted to enter a retraxit of this cause.
The Court grant the prayer of the plaintiff, and he
accordingly entered^ retraxit.
On motion and prayer of the plaintiff, the Court have
taken into consideration the award of the arbitrators ap
pointed in this cause, under a rale of Court, made in last
November term, are of opinion that the said award is just,
and therefore do approve of and confirm the same.
The plaintiff appears by his agent. -
The defendant does not appear.
Mr. Jacob Farrand appears as agent for the plaintiff
and represents to the Court that whereas the plaintiff did
obtain a judgment of default before this Honorable
Court, in last November term, against the defendant, he
therefore, on the part of the plaintiff, prays that final
judgment may be entered up against the defendant.
The Court, in answer to the motion mad6 by the plain
tiff's agent, are of opinion that final judgment ought not
to be entered against the defendant at this term ; because
the Court did by a rule made in last term, direct that the

UPPER CANADA COURT RECORDS.

443

defendant should be made acquainted with the suit then
and not depending against him, and whereas it is not pos
sible that the defendant could have had such notice, since
the last term in time to appear at thisi term, either in
person, or by an agent, the Court do therefore order that
this cause be continued, over till next term.
The plaintiff appears.
The defendants appear, and pray judgment on the issue
raised by the declaration and plea filed in this cause.
The Court, in answer to the defendanfs motion, are
of opinion that this action ought not to abate, and there
fore, on motion of the plaintiff, do order that the de
fendants immediately give in plea to the merits.
The defendants for their plea to the merits, answer
and say that they are in no manner indebted to the plain
tiff as is set forth in the declaration, and therefore pray
that the truth may be inquired of.
Whereupon the Court do order that a venire do issue
to summons a jury in this cause, returnable to-morrow at
nine o'clock in the' forenoon, and that the special matter
be given in evidence to the jury.
The plaintiff appeared.
The defendant appeared.
The Court in answer to the defendant's notice of ap
peal given to this Court, have at present no objection to
the baU tendered by him, and are ready upon his giving
the requisite security according to law, and upon produ
cing a writ of appeal, directed to the judges of this court,
from any court in this Province, authorized to give such
writ, to allow the same and comply therewith.
Joseph Anderson, Esquire, appeared as agent for the
plaintiff. The defendant having been duly called does not appear.
Joseph Anderson, for the plaintiff, filed two notes of
hand from the defendant to the plaintiff. The plaintiff,
by his agent, represents to the Court that he obtained a
judgment of default against the defendant in the last
term, and whereas the defendant does still continue to
make default, by not appearing at this telTn, he humbly
prays that final judgment may be entered up against the
defendant for the sum demanded in and by the declara
tion, together •with costs of suit.
The Court having seen the declaration and the exhibits
filed in this cause and having examined the same, do find
the defendant to be indebted to the plaintiff in the sum of
four pounds, six shiUings and eightpence, Quebec currency.

William Scott
vs.
William Barton,
Joseph Barton
and John Barton,

Justus Sherwooa
vs.
Samuel Adams.

Joseph White
vs.
Samuel Shlpman

444

UPPER CANADA COURT RECORDS.

and do therefore condemn the defendant to pay to the
plaintiff the said sum of four pounds, six shillings and
eightpence, together with costs of suit to be taxed.

Joseph Anderson
vs.
Richard Hope.

The plaintiff appears in person.
The defendant having been duly called does not appear.
The plaintiff filed a note of hand from the defendant,
and represents to the Court that he obtained a judgment
of default against the defendant in the first week of this
term, and whereas the defendant does still continue to make
default, he (the plaintiff) prays that final judgment may
be entered up against the defendant for the sum demanded
in and by the declaration, with costs of suit.
The Court having seen the declaration and the de
fendant's note of hand filed in this cause, do order and
adjudge that the defendant do pay to the plaintiff the sum
of three pounds, twelve shiUings and eightpence, Halifax
currency, with lawful interest thereon from the eighteenth
day of June, in the year of our Lord one thousand seven
hundred and ninety-one, together with costs of suit to be
taxed.

Richard Wilkinson
vs. :
WUliam Falkner.

On motion of Jacob Farrand, Esq., it is ordered that
he do file power of attorney appointing and constituting
him agent for the plaintiff, and he accordingly filed the
said power of attorney.
The defendant having been duly called does not appear,
nor any agent for him.
Mr. Farrand, agent for the plaintiff, represents to the
Court that the plaintiff, by the judgment of this Honor
able Court, obtained a default against the defendant in the
last term. And whereas the defendant does stUl continue
to make default, by not appearing at this term, Mr. Far
rand, as agent for the plaintiff, and on the part of the
plaintiff, moves that this Honorable Court will order final
judgment to be entered up against the defendant for the
sum demanded in and by the declaration filed in this cause.
Whereupon the Court, having seen the declaration and
the plaintiff's account filed in this cause, and having
maturely considered and examined the same, do condemn
the defendant to pay to the plaintiff the sum of seventeen
pounds, four shillings and fourpence, Quebec currency,
together with costs of suit to be taxed.
On motion of Jacob Farrand, Esquire, it is ordered
that he do file power of attorney appointing and constitut
ing him agent for the plaintiff, and he accordingly filed
the said power of attorney.
The defendant having been duly called does not appear.

UPPER CANADA COURT RECORDS.

445

Mr. Farrand, agent for the plaintiff, represents to the
Court that the plaintiff, by the judgment of his Honor
able Court, obtained a default against the defendant in
the last term, and whereas the defendant does stUl con
tinue to make default by not appearing at this term;
Mr. Farrand, as agent for the plaintiff and on the part of
the plaintiff, moves that this Honorable Court will order
final judgment to be entered up against the defendant for
the sum demanded in and by the declaration filed in this
cause. Whereupon the Court, having seen the declaration and
the defendant's note of hand filed in this cause, and having
examined the same, do condemn the defendant to pay to
the plaintiff the sum of twenty-two pounds, fifteen shU
lings and sixpence, Quebec currency, together with costs of
suit to be taxed.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

TUESDAY, 15th APRIL, 1794.
The Court met pursuant to adjournment.
Present: The same Judges.

The plaintiffs appear by their agent.
The defendant appears and files his reasons for pray
ing an adjournment of the cause, and the Court having
considered the same do order that this cause shall lay over
and be continued till next term.

Joseph Forsyth
& Co. vs.
Hugh Munro,
Esquire.

The plaintiff appears.
The defendants appear.
The Sheriff returned the venire.
The jury impanelled and sworn to try the issue joined
in this cause were: —

William Soott
vs.
WUliam Barton,
Joseph Barton
and John Barton.

1. Thomas Fraser, Jun.
2. James Humphrey.
3. William Fraser.
4. John Whitney.
5. Jesse Purdy.
6. John Riddiboch.

7. Richard Davis.
8. Samuel Wilson.
9. Hugh Maellmoyle.
10. James Froom, Sen.
11. Henry Jackson.
12. Ephraim Curry.

Evidence sworn on the part of the plaintiff, viz. : 1,
Silas Hamblin; 2, Moses Hurlburt; 3, Herman Hurlburt;
4, Eiisha Balcer ; 5, William Leehye, Jun. ; 6, John Brund-
age; 7, John Heeck; 8, Joseph Knapp; 9, Capt. Simon
ColvUIe.

446 UPPER CANADA COURT RECORDS.
Evidence sworn on the part of the defendants, viz. : 1,
Justus Sherwood, Esq.; 2, Alexander Humphrey; 3, John
Scott ; 4, Oliver Everts ; 5, John Chester ; 6, Phebe Chester ;
7, Jenny Cross; 8, Joel Smades.
The jury having heard the evidence in this cause, and
having also heard the parties on their behalfs respectively,
retire to consider of their verdict under the charge of
Nicholas Mosher, bailiff.
The jury having returned into court say by Samuel
WUson, their foreman, that they find a verdict for the
plaintiff in the sum of seven pounds, that is to say, two
pounds for the hog and five pounds for his damages,
e.vclusive of the costs in this cause, and so they say all.
J. McDonell, J.CP-

Thomas Bluard
vs.
Isaiah Cain.

On motion of Mr. Solomon Jones, of Augusta, sur
geon, it is ordered that he files a power of attorney from
the plaintiff, constituting him agent for the plaintiff, and
he accordingly filed the said power of attorney.
The plaintiff by his agent filed declaration.
The defendant appears, and acknowledges that he is
justly indebted to the plaintiff in the sum demanded in
and by the declaration and confesses judgment thereon.
Mr. Jones, agent for the plaintiff, filed a no^te of hand
from the defendant to the plaintiff.
Whereupon the Court do condemn the defendant to
pay to the plaintiff the sum of six pounds, four shillings
and threepence, Quebec currency, together with costs of
suit to be taxed.
Simeon Coviue The plaintiff appears.
Oliver Sweet. The defendant appears and says that his reason for
wishing an adjournment is that he has some accoimts
against the plaintiff's demand, which are at present mis
laid and cannot be found, and for which the plaintiff has
not given any credit in his account.
The Court cannot admit of an adjournment of this
cause on the reason offered by the defendant, and do there
fore order that he enter plea to the merits.
The defendant comes into court and acknowledges him
self to be indebted to the plaintiff in the sum of thirteen
pounds, five shiUings and fourpence, Quebec currency, and
confesses judgment for the sum above said.
The plaintiff, being personally present in court, says
that he will be satisfied for the demand made against the
defendant in and by his declaration filed in this suit, on
the defendant's paying to him the aforesaid sum of thir
teen pounds, five shiUingg and fourpence, with costs of

UPPER CANADA COURT RECORDS.

447

suit, and therefore prays that judgment may be entered up
against the defendant for the same.
Whereupon the Court^ having considered the confes
sion of the defendant, and the plaintiff's consent, do con
demn the defendant to pay to the plaintiff the aforesaid
sum of thirteen pounds, five shillings and fourpence,
together with costs of suit.

The plaintiff appears, and for his plea says that he is
in no wise indebted to the plaintiff'as set forth in his de
claration, and prays that the truth may be inquired of.
Whereupon the Court order that a venire do issue, re
turnable immediately, to summon a jury to try the issue
joined in this cause.
The Sheriff returned the venire.
The jury impannelled and sworn to try the issue joined
in this cause were: —

Simeon Covllle
vs.
Joseph White.

1. Andrew Adains.
2. Ephraim Curry.
3. James Froom, Sen.
4. John Hick.
5. William Fraser.
6. Philip Dulmage.

7. Jesse Purdy.
8. Richard Davis.
9. Thomas Fraser.
10. Silas Hamblin.
11. Samuel Wilson.
12. Henry Jackson.

The plaintiff filed an account against the defendant.
The defendant filed an account against the plaintiff.
Evidence sworn on the part of the defendant, viz. : —
1, John MacNeU ; 2, Thomas Sherwood, Esq.
The jury having heard the declaration and the de
fendant's plea, and seen the exhibits filed and produced in
this cause and heard the parties respectively on their own
behalf, retire to consider of the verdict under charge of
Nicholas Mosher, bailiff.
The plaintiff appeared.
The defendant appeared.
Ordered by the Court that this eaus^ be put off and
called again to-morrow.
The plaintiff appeared and prayed that he might be
permitted to enter a retraxit of this suit, which the Court
grant, and a retraxit is accordingly entered.
The Court adjourned till to-morrow at nine o'clock in
the forenoon.

Verneuii Lorimier
vs.
Daniel Smith.

JamesBreakenridge vs.
Reuben Mott.

WEDNESDAY, 16th APRIL, 1794.
The Court met pursuant to adjournment.
Present : The same Judges.

448

UPPER CANADA COURT RECORDS.

Simeon Covllle
vs.
Joseph White.

Verneuii Lorimier
vs.
Daniel Smith.

The parties being present in Court.
The jury having returned into Court say by John Hick,
their foreman, that they find a verdict for the plaintiff in
the sum of one pound, eighteen shillings and fonrpence
halfpenny, Quebec currency, with costs, and so they say all.
The Court having considered the verdict of the jury do
confirm the same, and condemn the defendant to pay to tbe
plaintiff the said sum of one pound, eighteen shillinga and
fourpence halfpenny, Quebec currency, together with costs
of suit. The plaintiff appears.
The defendant comes here into court and for his plea
and in answer to the declaration saith that he is in no ¦wise
indebted to the plaintiff in his capacity or quaUty of agent
for the Indians of Oswegatchie for any contract made
with him or them, for any timber cut on the south side of
the River Iroquois, he (the defendant) having already
paid and satisfied for all the timber he has cut on that
side of the river, and particularly for the timber for which
the plaintiff now brings this action, he (the defendant)
by the directions of the plaintiff, did pay one George Alley,
all of which he (the defendant) is ready to verify.
The plaintiff represents to the Court that as the de
fendant has set forth in his plea that he has made satis
faction for the timber by him cut on the south side of the
River Iroquois, and has done so in compUance
with the directions of the plaintiff, it will be
necessary for him (the plaintiff) to have certain evidences
to elucidate the directions alluded to by the defendant,
which cannot be done at this term, by reason of the dis
tance those evidence are at present from this place, and
therefore prays that this cause lay over and be continued
till the next term.
The plaintiff having made it appear to the Court that
Mr. Solomon Jones, of Augusta, and Mr. George AUey are
principal and necessary evidences in this cause, and that
they cannot be present before the close of this term, the
Court do therefore, with consent of the defendant, order
that this cause be continued over till next term, and that
the parties do appear prepared with their evidences on the
second day of the next ensuing term.

John Levingston
vs.
John Pottiar.

The plaintiff appears and files written articles of agree
ment between him and the defendant, ¦with a promissory
note under the said articles written from the defendant to
the plaintiff.
The defendant having been duly called does not appear.
The plaintiff represents to the Court that he has ob-

\\\\

UPPER CANADA COURT RECORDS.

449

tained a judgment of default against the defendant in the
first week of this term, and whereas the defendant does
stiU continue to make default by not appearing, after
having been' duly called this day, he therefore prays this
Honorable Court will order final judgment to be entered
up against the defendant for the sum demanded in and by
the declaration.
Whereas it appears to the Court that the note given by
the defendant to the plaintiff is in the nature of a penalty
of a -bond wherein damages may be included, cannot there
fore give final judgment thereon without the verdict of a
jury, and do therefore order that a venire do issuej return
able this day, to summons a jury to try the merits of this
cause. The plaintiff appeared ¦and filed an account against the
defendant for the sum of twenty-seven pounds, Quebec
currency. The defendant having been duly caUed does not appear.
The plaintiff represents to the Court that he obtained
a judgment of default against the defendant in the first
week of this term, and whereas the defendant does stiU con
tinue to make default, by not appearing after having been
duly called on this day, he therefore prays that this
Honorable Court wiU order final judgment to be entered
up against the defendant for the sum demanded in and
by the declaration.
It appearing to the Court that the plaintiff in his de
claration hath demanded damages, the Court therefore are
of opinion that final judgment thereon cannot be given
without the verdict of a jury, and do in consequence
thereof order that a venire, do issue returnable this day
to summons a jury to try the merits of this cause.
The Sheriff returned the venire.
The jury impannelled and sworn to try the merit of this
cause were: —

John Levingston
vs.
John Adam
Stinger.

1. Jesse Purdy.
2. Henry Jackson.
3. SUas Hamblin.
4. David SiUick.
5. Philip Dulmage.
6. James Humphrey

7. John Hick.
8. Ephraim Curry.
9. Thomas Fraser, Jun.
10. Andrew Adams.
11. Richard Davis.
12. Hugh Maellmoyle.

Evidence sworn on the part of the plaintiff, viz.: 1,
Thomas Doyle; 2, Major Watson; 3, Daniel Shipman.
The jury having seen the exhibits filed in this cause
and having heard the evidence produced by the plamtitt,
30 A.

John Levingston
vs.
John Pottiar.

4.50

UPPER CANADA COURT RECORDS.

William Scott
vs.
William Barton,
Joseph Barton
and John Barton.

retire to consider their verdict under the charge of Nicholas
Mosher, bailiff.
The plaintiff appears in open court and prayed that
final judgment might be entered up against the defendants
according to the verdict of the jury.
The Court having seen and considered the verdict of
the jury given in this cause do confirm the same, and
condemn the defendants to pay to the plaintiff the sum of
seven pounds, Quebec currency, together with costs of suit
to be taxed.

John Levingston
vs.
John Pottalr.

The jury having returned to court say by John Hick,
their foreman, that they find a verdict for the plaintiff in
the sum of eighteen pounds, Quebec currency, with costs,
and so they say all.

John Levingston
vs.
John Adam
Stinger.

The Sheriff returned the venire.
The jury impannelled and sworn to try the merits of
this cause were: —

1. William Fraser.
2. John Hick.
3. John Whitney.
4. James Froom, Sen.
5. Henry Jackson.
6. Silas Hamblin.

7. Andrew Adams.
8. Daily SiUick.
9. Philip Dulmage.
10. Jesse Purdy.
11. Thomas Fraser, Jun
!¦?. Richard Davis.

The jury having heard the declaration and the plain
tiff's account filed in this cause, and having requested that
the plaintiff should attest to his account, which he accord
ingly did in presence of the jury, they retire to consider of
their verdict under charge of Nicholas Mosher, bailiff.
The jury having returned into court say by John Hick,
their foreman, that they find a verdict for the plaintiff in
the sum of thirty pounds, Quebec currency, with costs, and
so they say all.
The plaintiff being present in court moves that the
Court will order final judgment to be entered up against
the defendant.
The Court having seen and considered the verdict of
the jury given in the cause do confirm the same, and con
demn the defendant to pay to the plaintiff the sum of
thirty pounds, Quebec currency, with costs of suit to be
taxed.

John Levingston
vs.
John Potteair.

The plaintiff appears in court, and moves the Court
that final judgment may be entered up against the de
fendant according to the verdict found by the jury in the
cause.

UPPER CANADA COURT RECORDS. 451
The Court having seen and considered the verdict
found by the jury in this cause, do confirm the same, and
condemn the defendant to pay to the plaintiff the sum of
eighteen pounds, Quebec currency, with costs of suit to be
taxed. The Court adjourned till next term.
J. McDonell, J.CP.
John Muneo, J.CP.

452 UPPER CANADA COURT RECORDS.

APPENDIX I.
The Coukts of Common Pleas.
In the same Number, 1198, Supplement to the Quebec Gazette, J'Uly 24th, 1788,
which contained the publication of the Patent creating the five new Districts,
Luneburg, Mecklenburg, Nassau, Hesse and Gaspe, there was published another
Patent or Proclamation dated July 24th, 1788, allowing the Judges of the Courts-
of Common Pleas to be formed in the new Districts certain fees, thus introducing
the system already discredited in the older part of the Province.
There was in the same Number a notice of appointments on the Commission
of the Peace in the Districts of Quebec and Montreal, 25 in Quebec (14 of French
and 11 English and Scottish names), 41 in. Montreal (27 of French and 14 Eng
lish and iScottish names), including the Members of the Council. These we pass
over as not belonging to our subject.
For the District of Luneburg were appointed as Justices of the Court of
Common Pleas, Richard Duncan, Edward Jessup, and John McDonell; as
Sheriff, John Monroe; as Clerk of the Court of Common Pleas and of the Peace
and ot the Sessions ot the Peace, Jacob Farrand. The Court ot Common Pleas
continued to be composed of the three, Duncan, Jessup and McDonell (Macdonell),
until September, 1790, when Jessup ceased to serve; his successor, John Munro
(or Monroe) took his seat for the first time in December, 1792. Duncan's last
appearance as Judge was February 28, 1793, after which until the Court was
abolished by the KingVBench Act in 1794, it was presided over by McDonell and
Munro. The Court according to the records sat at, Cornwall, Augusta, Edwardsburg,
Osnabruck, Stormont and New Johnstown.
In Mecklenburg, the Justices of the Court of Common Pleas were: John
Stuart, Neal McLean, and James Clark; the Sheriff was William Radford Craw
ford; the Clerk ot the Court ot Common Pleas, Clerk ot the Peace and ot the
Sessions ot the Peace, Peter Clark.
John Stuart was the Reverend John Stuart, who had permanently settled at
Kingston the same year, 1788; he declined the office and Richard Cartwright was
appointed in his place. James Clark did not sit after July 8, 1789. Hector
McLean took his place, January 3, 1791, and Cartwright, with the two McLeans,
continued to preside over the Court until its abolition — often, however, only two
of them attended.
In the Court of Common Pleas tor the District ot Nassau, the Justices were
John Butler, Robert Hamilton and Jesse Pawling; the Sheriff, Gilbert Tue, and the
Clerk of the Court ot Common Pleas, of the Peace and of the Sessions of the
Peace, Phillip Fry. In this Commission there was a curious mistake made. It
Iiad been intended to appoint Benjamin Pawling, Colonel John Butler and Robert
Hamilton, judges of the Court, but Jesse Pawling's name was inserted in the
Commission instead of Benjamin Pawling's — however, this was speedily rectified,
and on October 22nd, 1788, Jesse Pawling's Commission as judge was revoked (he
being appointed a Coroner tor the District), and Benjamin Pawling, Peter Ten-
brook and Nathaniel Petit were added as judges to the two already appointed.
Colonel Butler and Robert Hamilton.
There is no record of the proceedings ot this Court known to be extant; but
no doubt it sat at Newark.
In the District of Hesse the Justices of the Court of Common Pleas first
appointed were: Duperon Baby, Alexander McKee and "William Robertson. The
Sherift was Gregor McGregor, the Clerk of the Court of Common Pleas, Clerk of
the Peace and of the Sessions of the Peace was Thomas Smith.
This District included in fact, if not in law, the stirring town of Detroit,
where much trade was carried on. "While from the conquest In 1760 till the
Quebec Act of 1774, the Governor or Commandant at Detroit had been semi-
independent, that Act brought Detroit within the Province of Quebec; the
ordinance ot February 25, 1777, automatically placed it within the District of
Montreal and subject to the jurisdiction of the Court of Common Pleas of that
District. How unsatisfactory that was may well be imagined when the distance,
want ot communication, etc., are considered — the inconvenience was in 1786
represented to the Governor by a committee of the merchants of Montreal,
"Detroit is become a settlement, both of great extent and great consequence; it
annually fits out a vast trade to the Interior Posts circumjacent to it which in

UPPER CANADA COURT RECORDS." 453
the course of carrying on, disputes and dilterences invariably arise, to determine
which lor the want of a judicial power on the spot, they are obliged to have
resorts to the Courts at Montreal, where from the delay and expense occasioned
hy the .great distance of one place from the other the suitor is generally more
oppressed than benefitted — the great delay affords an opportunity to the debtor
of making away with his property and the plaintitf thereby, independent of the
loss of his debt, hecomes further saddled with the costs of suit. For
instance, the merchant ot Detroit sends to Montreal for a summons against
one of his debtors . His letter takes a month frequently coming
down, the summons issues and three months is the shortest space allowed for its
return and according to the season four, five and six months is granted. The
summons goes up . . some ignorant person is appointed to serve it, he com
mits an error; so that when the writ is returned, the service is found defective,
and the only remedy then left to the plaintiff is to begin again — this happens at
least three times out of five, but it perchance the summons is returned properly
served and that judgment goes by default, it then requires six months before the
property of the debtor can be seized upon at Detroit by virtue of an execution
issuing on a judgment so obtained, and even when execution goes up it's ot no
avail unless the Commanding Olfieei: ot the Post interferes by affording Military
aid to enlorce it." The Report states that there are not less than torty suits a year
above £10 sterling, by persons in Detroit against others in the same place and
not above one-fourth have the desired effect, not to mention the very great
expense for costs of suit — if a resident judge were to be appointed there would be
three or four hundred suits as well below or above £10 sterling. The Report
recommended the formation of a District separate from that of Montreal and
composed of the Posts of Detroit and Michilimackinac, the establishing of a Court
of Civil Jurisdiction therein to be called the Court of Common, Pleas with similar
jurisdictio~n to that of the other Courts of Common Pleas in the Province and
presided over by one Judge whose judgment should be final upon to £50 currency
($200) with an appeal to the Court of Montreal when over that sum. It will be
seen that these merchants desired not only a new Court but a Court with one
judge. There is no room for doubting that this Report expressed the sentiments
of the Detroit merchants (the ordinary Inhabitants of Detroit and its dependen
cies had no law suits and cared nothing for the constitution of the civil Courts.)
The Governor in appointing Justices of the new Court had followed the recom
mendation contained in his instructions of January 5, 1775, which after advising
that there should 'be a Court of Common Pleas in each of the two Districts then
existing said, " that there be three judges in each of the said Courts of Common
Pleas, that is to say, two of our natural born subjects of Great Britain, Ireland
or our other plantations and one Canadian " — rather than the suggestion that in
the inferior Court ot King's Bench ot civil and criminal jurisdiction in, each
of the proposed new Districts of the Illinois, St. Vincenne, Detroit, Missilimakinac
and Gaspee, the Court should consist ot one judge, a natural borni subject, and
that there should sit with him as an advisor only, a Canadian to give him advice
in any matter when it should be necessary.
The Governor was well acquainted with the circumstances and condition of
all the new as of the old Districts. "We flnd him writing to Lord Sydney, Novem
ber 8, 1788. " The Canadians, a new subject, occupy the Districts ot Quebec and
Montreal and some are also tound in the Districts of Gaspe and Hesse. The three
Districts of Luneburg, Mecklenburg and Nassau are inhabited only by the loyalists
or old subjects of the Crown. Accordingly, while he did not think it necessary to
appoint a Canadian to any of the three Districts of Luneburg, Mecklenburg and
Nassau, he did appoint one in Hesse, Duperon Baby.
When the constitution of the Bench became known in Detroit, it caused great
dissatisfaction— the " Merchant Traders and Inhabitants of Detroit to the number
ol 34, all ' old subjects,' drew up a ' Memorial and Representation ' to Dorchester,
saying that they were ' seized with an infinite alarm for the security of their ^
properties under an arrangement which they see pregnant with the most destruc
tive consequences.' " , . ^ i
No other judge was consequently appointed to this Court. Powell contmued to
be its " First Judge " and only Judge until its abolition in 1794, by the King s
Bench Act of that year.
The Court sat at L'Assomption, now Sandwich.
In this alone of the four new Courts we have a certainty of the successive
Clerks. They were Thomas Smith, Charles Smyth and "William Monforton. The
Sherifl was Gregor McGregor.

454 UPPER CANADA COURT RECORDS.
APPENDIX II.
Thb Coijkt of Commox Pleas fob the District of Lukebubg. (
The first sittings of this Court, so tar as is shewn by the extant Records was
June 1, 1790; there must have been previous sittings but the record ot them has
not been recovered.
Only two Judges sat: there is no provision in the ordinance of 1785 for the
number of judges constituting a quorum. At the common law in the absence of an
express provision a majority of the number of any class or body constitutes a
quorum for doing business. Consequently two out of the three Justices were
sufficient. Nancy Drew Vs. James Daugherty and Hannah, his wife.
This was an action for more than £10 sterling or there would have been no
writ and no right to a iury. Ord. 1785, Arts 36, 9. The nlaintiff was a woman
without a husband (almost certainly a spinster as she had the same surname aa
her father, Paul Drew). At that time no married woman could sue in her own
name at 'the English law and we may be reasonably certain that that rule would
be applied at Cornwall.
The action seems to have been for slander, and the words complained of did
not impute unchastity; simply such words were not then actionable.
The Sheriff had served a copy of the writ on the defendants with a copy of
the " declaration," i.e., the pleading which set out the cause of action (corres
ponding to our present "Statement of Claim"); and it was his duty to return
the writ to the Court with a statement of what he had done with it.
The defendants appeared: it may be that it- was only the wife who was
charged with uttering the slander — then and tor long after the husband was liable
to the full extent for the wrongs " tor'ts " committed by his wife.
The defendants on appearing pursuant to the writ of summons had the right
to make their answer to the declaration either at once or on some other day
fixed by the Court and either in writing or verbal. Ord. 1785, Art. 8. Here the
answer was made orally, whereupon it was the duty of the Clerk of the Court to
" take down the substance thereof in writing and preserve the same among the
records of the Court and in the same action."
The Ord. 1785 by Art. IX allowed either party to have the verdict of a jury
in all cases of per^nal wrongs, such as slander, and the defendants elected to
have a jury trial, whereupon the Court granted a venire facias to issue to cause
a jury to attend on the morrow at 10 o'clock.
The following day the jurors attend and are impanelled (the Sheriff return
ing the writ). "Witnesses are called by each party, no lawyers appear, but it is
probable that the plaintiff was represented by her father, Paul Drew: the jury
find for the defendants and the action is dismissed with costs.
Nancy Drew vs. David Bruce.
A similar action by the same plaintiff; the defendant appears and deman4s
a jury; the next day the plaintiff asks tor an adjournment to produce a necessary
witness, the Reverend Mr. John Bryan. The Court against the remonstrance ot
the defendant grants the request and the trial is postponed to the following
term. Before the next term comes round. September 16, 1790, the plaintiff had
gone to "the Colonies," i.e., the revolted colonies, now the United States, and her
father's prayer for a further enlargement being opposed by the defendant, he
withdraws the action and has to pay the costs. One is tempted to think that the
absence ot the plaintiff in " the colonies " was calculated. ,She had already lost
one and won one action and probably had had enough ot it.
Nancy Drew vs. Stephen Miller.
A similar action. The defendant admits using the words complained of but
demands a jury. The jury which tried the Daugherty case try this also, but with
a different result. The defendant is obliged to pay £2 ($8.00) damages and hall
the costs. It will be observed that David Bruce, the defendant in the other action, was
called as a witness by the defendant in this action, that he was objected to and the
objection allowed,
Peter Bruner vs. John Markle.
Another case of slander — the defendant admits the v/ords but denies that he
intended to defame, but only to jest. This the Court properly held immaterial —

UPPER CANADA COURT RECORDS. 455

if one does another an injury he is not excused because he did not intend it
(except on a criminal charge). "If a man in jest conveys a serious imputation
he jests at his peril." The parties do not ask for a jury and the Court assess the
damages at 2s. 6d. (60 cents).
Rossiter Hoyle vs. Farquhers.
We have here a continuation aud the end of an action tried at some previous
' sitting. Judgment had gone for the plaintiff and a writ of execution issued
(technically "fieri facias" or fi fa goods and lands) to the sheriff to make the
debts and costs out ot the goods of the debtor and if these be insufficient out ot
his lands, the debtor pays the debt and there remains but the costs of the Court,
the Clerk and the Sheriff to be paid. The plaintiff is ordered to pay these. The
plaintiff appears by an Agent, Mr. John Beikie of Cornwall. He was not an
Attorney at Law and never became one, but this was no objection to his acting
as Agent. Rossiter Hoyle vs. Phillip Crysler.
Another precisely similar case.
Thomas Coffin vs. Jacob Countryman.
The defendant appears and settles the debt, apparently also the costs, as he
is " Discharged from this Suit." The plaintiff is represented by an Agent, Clerk of
the Court and so well known in the District.
Elisabeth Loucks vs. Hannah Loucks.
The case is settled, the plaintiff to pay the costs. The plaintiff has an
Attorney, Thomas Walker.
Samuel Adams vs. Hugh Munro.
Hugh Munro, the defendant, was one ot the two Coroners (Joel Stone being
the other) tor the District. He had sold certain land but claimed there was a
balance due of 20s. ($4.00) and that the balance had not been tendered or the
deed presented for his execution. Thos. Walker, Attorney for the plaintiff, asserts
(1) that the balance had been tendered and (2) that there was no need to tender
a deed as Munro had a deed prepared in his own hand writing which he refused
to execute. The Court ordered Munro to execute the deed and to pay the costs.
No common law court in England had the power to make such an order. All
that any but a Court ot Chancery could do would be to award the plaintiff
damages. No Chancery Court would have made this order under the circum
stances. The vendor of land could not be called upon to give a piece of paper or
parchment in addition to the land; it the purchaser desired a deed he must have
a deed prepared, or it it were prepared by the vendor's solicitor, must pay for it.
David Su vs. Alex. Campbell.
At the request ot both parties this case was referred to arbitration, William
Faulkner being named the sole arbitrator. His award was approved. The practice
ot referring cases to arbitration, is no longer followed by our Courts, but there
is no objection to the parties themselves referring their differences to arbitration,
quite the contrary.
Margaret Piller vs. Frederic L. Markley.
The husband appears for the plaintiff'.
William Faulkner, Esq., Curator to the Estate ol Barnes Spencer, deceased;
vs. Joseph Brownell.
The plaintiff has an attorney and naturally the delendant asks an enlarge
ment to procure Counsel which is granted. On the first day ol next term, January
13, 1791, he is represented by James Walker, who files a plea tor him and the
next day the plaintiff abandons his action by filing a retraxit. A Curator is not
known to the English Law, it is a civil law term. This should have been the end
ol the proceedings, hut we flnd, September 27, the plaintiff, through his Counsel,
arguing in support ot a petition he has presentefi to the Court and on the follow
ing day the petition is disposed of. It would seem that the costs of the defendant
were not paid and that he had an execution issue for them against Faulkner
personally Faulkner moved against this execution and the Court directed the
execution to issue against him as Curator of the estate only, so that if there were
not sufficient assets of the estate in his hands the unlortunate defendant would

456 UPPER CANADA COURT RECORDS.

lose them. At the present time the costs would be ordered to ibe .paid out of the
estate and if not enough in the estate, by the executor (or curator) himself, so
that the defendant would not lose them.
George Barnhart vs. Abraham Marsh.
The defendant wishes to be on even terms with the plaintiff and obtains an
enlargement to procure Counsel, but we hear no more ot the case.
George Barnhart vs. George Johnston.
This defendant is in like case and is allowed the like indulgence. Next term
James Walker appears tor him, a jury is called and a verdict given for the
defendant. George Barnhart vs. James Johnston.
This defendant has the same privilege. The next term James Walker appears
for him and apparently daunted by his ill success in the previous action, the
plaintiff abandons his case, paying the Clerk's fee, £1 4s. 6d.
The amount of the fees show that the sum claimed' was less than £30 currency
and over £10 sterling. Ord. 1780 allows tor Clerk's fees, £1, 2s. 6d., in such cases,
exclusive of office copies of paper and 6d. per sheet of 100 words for office copies
of papers. George Barnhart vs. Jeremiah French, Esq.
Thomas Walker and James Walker for the parties. A jury trial is fixed for
Tuesday, January 18, 1791, but the Sheriff cannot get the jurors in time. Four
days after the jury comes but thei plaintiff does not want to go on, and the case
is enlarged till the following June, when the verdict is found for the defendant.
John Shell vs. Phillip Crisler.
This is a case more tham £10' sterling. On, the failure of the defendant to
appear on the day named in the writ of summons (here called "summons") he
was defaulted, " Ord. 1785," Art. VI, and if he did not attend the next court the
evidence for the plaintiff was taken in his absence and judgment given accord
ingly — if he did appear and paid the costs he was allowed to defend, " Ord. 1785,"
Art. VIII.
The case seems to have been settled: We see no more ot it.
McTavish Frobisher & Co., vs. Rossiter Hoyle,
The plaintiffs were the well-known Montreal merchants, and had James
Walker represent them. Hoyle defends in person. The, subsequent proceedings
show this to be a most interesting case. The plaintiffs had iDrought an action against
the defendant in the Court of Common Pleas at Montreal, and applied for a Writ
of Attachment. The ordinance of April 30, 1787, provided that " no process ol
attachment (except in one case not here in question) shall hereafter be issued
lor attaching the estate debts or effects ... of any person . . . whomsoever,
whether in the hands of the owner, the debtor or of a third person, prior to trial
and judgment, except there be due proof on oath (to be indorsed on the writ of
attachment) to the satisfaction ot one of the judges . . that the defendant
or proprietor of the said debts and effects is indebted to the plaintiff in a sum
exceeding £10, and is about to secrete the same or doth abscond or doth suddenly
intend to depart from the Province with an intent to defraud his creditor or
creditors, etc., etc."
The plaintiffs obtained an order attaching the defendant's " estate, debts and
effects" from Judge Fraser and a Writ of Attachment issued to the Sheriff.
By the ordinance of April 30, 1789, Sec. 14, it was provided that the new
Courts should assist the other Courts, new or old, for the perfecting of execution,
and this was a proceeding to attach the goods ot the defendant in the hands of
John Beikie.
The defendant objected to the sufficiency of the affidavit before Mr. Justice
Eraser, but in vain, one cannot attack a judgment or other formal proceeding in
a Court " by a sidewind " — it must be attacked in the Court and directly.
Beikie was examined by the Court and when he admitted having goods of the
debtors and owing him money, these were attached. This seems to have been
effective, as by the next court day the debt is settled.

UPPER CANADA COURT RECORDS. 457
Justice iSherwood vs. Samuel Adams.
An action for slander. The defendant admits the words and "justifies."
The plaintiff asks for a jury, the defendant is not ready, but neither counsel nor
Court will listen to his plea for delay to procure two witnesses who are out of the
Province. The next day the plaintiff repents and the case goes over till next term,
to be held in January, 1792. The defendant appeared but there were not enough
judges in the District to form a Court. In December, 1792, the Court having been
fully constituted by the appointment of- John Munro in the place of Edward
Jessup, directed the action to begin de novo. Next month has not yet got his
witnesses and the case stands over; then thei defendant gets an Attorney, a
" Professional Counsel " and the plaintiff appears in person. The Attorney pleads
that the action is barred by lapse ot time which takes the plaintiff all aback and
he asks for time to procure Counsel. Curia advisari vuU.
The next day the Court disallows the plea of the Statute of Limitations, giving
several very bad reasons for their judgment, and it is decided to grant commissions
tor the examination of witnesses outside of the District. In May, 1793, the plaintiff
liles his replication, i.e., his answer to the defendant's plea. The next day Counsel
for the defendant wants the plaintiff ordered to deliver his interrogatories or be
barred from the commission, the Court takes up the cudgels for the plaintiff and
orders the legal questions which retard the progress of the suit to be argued next
term, with an intimation that if the Attorneys do not attend the Court will " put a
period to the suit " anyway. Notwithstanding this the case is again adjourned
owing to the absence of the defendant, then he is defaulted and the plaintiff asks
filial judgment. At length, in November, the defendant not appearing, the Court
gives the plaintiff judgment and have a jury called to assess the damages. The
jury find the plaintiff not guilty and award him £500 and costs of suit.
In April, 1794 the defendant gives notice ot appeal, and the Court after con
sideration is ready to allow his Bail and upon his giving the requisite security
and producing a " Writ of Appeal directed to the Judges ot this Court from any
Court in the Province authorized to give such Writ," the defendant would have
the security allowed and the Writ obeyed. But there was no such Court and
Samuel Adams had no relief.
Jacob Empey vs. Nicholas Lang.
By an ordinance of April 22, 1790, it was provided that it should not be
lawful for anyone to " let his horses, horned cattle, sheep, goats or hogs trespass
on individuals or stray in the public highroads . . And if any neat cattle,
goat or sheep be taken in trespass or straying in, the public highway, the
proprietor thereof over and above the damage which may be recovered in due
course of law, shall incur a fine of one shilling for each neat cattle or goat, and
threepence for each sheep. . And . . every injury and damage which
shall be sustained by every such straying or trespass as before mentioned may
be used and recovered in the Court of Common Pleas of the District." The
plaintiff claims damages for trespass by the defendant's horses, the defendant
says they are not his horses, and the next day the plaintiff abandons his action.
Justus Sely vs. Hugh Johns.
The 'difficulties arising trom there not having been judges enough to hold a
Term are gotten over by ordering a new action to be brought. It was considered
that the former action had become effete.
Stephen Miller vs. Joseph Anderson, Curator.
The plaintiff sues for an account— the matter is referred to arbitrators who
proceed with the reference: but the Court thinks that the work has not been
properly investigated and send the matter to two carpenters agreed upon by the
parties. Next term the arbitrators report that the accounts have balanced and
the Court accepts the award and directs each party to pay half the costs An
action by the same plaintiff against Captain Samuel Anderson had been arbitrated
upon by the same two carpenters apparently to the satisfaction of the Court.
Joseph Burton vs. Lewis Nadeau.
Another case of slander. The defendant admits the defamatory words but
is not ready for trial. The following term he demands a jury trial and the jury
find against him with 5s. ($1.00) damages.
31 A.

458 UPPER CANADA COURT RECORDS.

Jeremiah French vs. George Barnhart.
An action on two promissory notes tried by the Court notwithstanding the
Act of the Legislature of Upper Canada, passed the previous year, directing all
issues to be tried by jury (two of the Judges, Richard Duncan and John Munro
were members of the Legislative Council, so that they could not plead ignorance
of the law).
It would seem that Samuel Sherwood and Charles Bennitt were in partner
ship as Sherwood & Bennitt, and that .they gave Barnhart a note for £34 12s.
which Barnhart was to give to Messrs. Auldjo & Maitland, well-known merchants
of Montreal, that Barnhart did not give it to Auldjo & Maitland but to John
Plat, a Blacksmith of Montreal, who was French's agent, with an endorsement
over to French. Sherwood & Bennitt offered to pay part but Plat refused to
accept, and the note was unpaid. If Sherwood & Bennitt had been promptly sued
they could have paid, but became unable. How the other note for £15 lis. 6d.
signed by John German, got into tlie plaintiff's hands does not appear, but it was
also endorsed by Barnhart. The two notes were given to settle a judgment French
liad against Barnhart in the Court of Common Pleas at Montreal.
The defendant, Barnhart, had received a receipt in full for the judgment
which the plaintiff claimed was conditional upon his being paid the two notes.
The Court held as a fact that the notes were taken as absolute payment of
the debt and not as conditional payment or security which was not enough to
dispose of the case in favour of the defendant; then that he was not liable as
endorser, there being no Protest or Notice of Dishonour. The first reason,
alleged indicates some confusion of thought; the third is unnecessary and not
based on law.
John Barnhart vs. George Barnhart.
The plaintiff gave a Power of Attorney to a layman to represent him. The
Court ot Common Pleas ot the District of Mecklenburg were very particular in
requiring a formal written Power of Attorney to be filed perhaps to prevent
repudiation of the agent's acts by the principal; the defendant is allowed time to
plead. Next term, the defendant wants the case put off for another term, the
plaintiff's new agent objects and the trial proceeds. It turned out that the plain
tiff had owned some cattle and sold them to the well-known Col. John Butler of
Niagara, that the plaintiff gave to the defendant an order for the price of them
on Col. Butler, and that Col. Butler paid the order to the defendant, the defendant
admitted getting the order but refused to be sworn. The Court found for the
plaintiff for £11 5s. Quebec currency, without requiring strict proof of the pay-
nient by Col. Butler.
James Clark vs. John Cafford.
A curious case: Cafford was in .possession of part ot Lot 20, on the south side
ot the River au Raisin which was the property of the plaintiff. John Cameron
bought the land from the plaintiff but could not get possession from the plaintiff
as the defendant held it. Cameron, therefore, called upon the plaintiff to give
him the land he had bought. The defendant being summoned to Court offers to
give up possession upon being paid for his improvements. This the Court ordered,
che amount of the value ot the improvements to be determined by arbitration.
Next month the plaintiff files a retraxit — probably the land was not worth more
than the amount of the award or perhaps the defendant bought Cameron out.
John Empey and Simon Clark vs. Philip Krysler.
The plaintiffs have a default note on filing a bond tor £60. The next term
Jacob Farrand appears tor them filing his Power ot Attorney and obtains judg
ment tor the full amount of the bond.
Parquhar McDonell vs. Martin Walter.
A case of a bond conditioned on the performance ot certain work which had
been partly done. Following the true rule the plaintiff could not have the full
amount of the penalty but only his damage by the breach of the condition. This
was referred to arbitration. The arbitration is next term, tound not to have been
conducted on the proper principle and new arbitrators are appointed. Their
award is filed and the defendant is ordered to pay £12 5s., Halifax or Quebec
currency.

UPPER CANADA COURT RECORDS. 459
Robert McGregor vs. John & Michael Quin.
An action on an account ot £16 7s. 9%d. John Quin, says that he appointed
Dobie & Badgely, his agents, to receive the compensation coming to him as
United Empire Loyalist, from the Home Government, and that the plaintiff acted
for Dobie & Badgely; but that he (John Quin) never received an account trom
them and he does not know how the accounts stand. McGregor swears that he
delivered an account to John Quin and he is ordered to pay £16 Is. 2i4d.
Michael simply denied liability but he also failed.
Simeon Covill vs. Abel & James Harrington.
Although default was entered against the defendants — on a writ of attach
ment — a jury was called to try the case Novemiber 6, 1793. This was in pur
suance of the recent legislation at Newark. The practice was followed in other
cases. Robert McGregor vs. John Bryon.
The Ord. 1785 by Article IV, provided that if one or more of the Judges ot
the Court of Common Pleas should be satisfied by the aflldavit of the plaintiff,
his book-keeper, clerk or legal attorney, that the defendant was indebted to the
plaintiff in a sum exceeding £10 sterling, and satisfied by the oath of the plain
tiff or some other person that he was about to leave the Province, whereby the
plaintiff should be deprived of his remedy against him, the Judge or Judges
might issue an attachment or capias to the Sheriff to hold him to bail or com
mit him to prison till he gave bail, or if he did not give bail, till two days after
judgment. Here the plaintiff, McGregor, obtained leave to file such an affidavit
and a writ issued ("Process" means "any proceeding to bring a person before
the Court").
Nothing further seems to have been done in this action except noting a
default till November, when another default is noted. January 17, 1794, the
plaintiff files a retraxit.
Charles Bennett vs. Thomas Stratton.
On March 10, 1792, the plaintiff procurred a Writ of Attachment which was
returned December 10, 1792, but neither party appeared in Court, the same thing
happening the next day; the case is dismissed. But they both turn up November 5,
1793, in a new suit with a new Writ ef Attachment, and on the following day the
defendant asks leave to file a plea to the new case and a "plea in abatement," a
dilatory plea to both the new case and the old one. The Court seeing that the
pleas had been drawn by an Attorney or Counsel gives the plaintiff an enlarge
ment till the following term so that he may obtain Counsel. The next day the
Sheriff returns the Writ in, another action between the same parties and the
defendant asks for time to get a lawyer. The Court refuses, as this action was
on a " Plain Promissory Note." A jury is called and this action is disposed ot
by a judgment for the plaintiff tor £15 Halifax currency, interest and costs. But
the former case did not come on till later, January 17, 1794. It stood over for
three days — there the plea in abatement was held bad and the defendant com
pelled to plead. Next day the case went to arbitration. An award was made and
either lost or maliciously destroyed by the defendant. This being proved by oral
evidence, the award is enforced on a certified copy being filed and proved.
John McKinivan vs. Henry Bolton.
The plaintiff having died, his " widow and relick " is allowed to continue the
suit— something wholly unknown to law and wholly irregular. We have not yet
got so far even in our common sense method of procedure. We still require an
executor or an administrator to take up the case of a deceased.
The matter goes to arbitration. The award is approved (except that the
Court will tax the costs) . It is adverse to the plaintiff, the plaintiff does not pay
and no doubt the defendant obtains execution on his complaint.
William Buell vs. Mary (Mercy) Buell, Executrix and Bemsley Buell, Executor
to the Estate of Timothy Buell, Deceased.
This case shows a more regular course. Executors are before the Court and
they not appearing the plaintiff asks that they have time given to plead. Not
appearing January 17, 1794, a default is entered. April 12, the defendants file
a plea in abatement, a dilatory plea (see note 27) which is overruled and then they
plead to the merits. On consent, the matter is referred to arbitration named
who are to report the following term, but there was no following term for the
Court of Common, Pleas.

460 UPPER CANADA COURT RECORDS.

Terence Smith vs. John Man.
This case shows the great care taken by the Court that a litigant should have
a chance to explain his case. The plaintiff's agent obtains a default the second
day of the sittings. When the defendant does not appear on the first day of the
following term, the case is put over, this is done the second time. Then it turns
out that the defendant has never been notified of the action (although the Sherifl
had returned the Writ November 5, 1793) and the Court adjourns the case for
another term. The following term the plaintiff appeared by his agent, the
defendant does not, but the delendant could not possibly have had notice and the
case stood over again to a term which never arrived.
Simon Covill vs. Joseph Griffin.
Final judgment irregularly entered without a trial by jury.
William Robinson vs. Jacob Cams.
Apparently an action for the price ot a mare and a bridle delivered with her
— the jury flnd for the defendant as to the price of the mare (presumably she
was really the defendant's own mare or she had been paid for in some way), but
for the plaintiff for the bridle, 4s. and the plaintiff has judgment for 4s. and costs.
Simeon Covill vs. Joseph Knapp.
A regular proceeding, notwithstanding default of defendant, the case is tried
hy a jury. So also in the next case, Covill vs. Shipman; also White vs. Shipman;
Paterson vs. Stooks; Levingston vs. Pottiar (or a bond); Levingston vs. Stinger
(damages); Scott vs. Barton; Coville vs. White; but not in Anderson vs. Bissell;
Peters vs. Watson; White vs. Griffln; Fraser vs. Griffin; Wilkinson & Beikie
vs. McCredy; Beikie vs. McCredy; Wilkinson vs. McGregor; Wilkinson vs.
Falkner (two cases); Hay vs. Grant (but this was where the defendant
admitted liability); Bluard vs. Cain (same remark); Anderson vs. Hope; Covill
vs. Sweet (for admitted balance of account).
John Levingston vs. John Pottiar.
An action on a promissory note given to secure the performance of an agree-
jient. This the Court considers equivalent to a bond for the same purpose and
a jury is called to assess the damages which it does at £18 Quebec currency.
Simeon Covell vs. Joseph White.
A case where a set-oft^ of accounts seems to have been permitted.
William Scott vs. William Barton, Joseph Barton and John Barton.
A plea in abatement (probably misjoinder) fails and the plaintiff gets "£2
for the Hog and £5 tor his damages."
John McGill of Montreal, Merchant, vs. John MoDonell, Curator to the Estate
of Duncan MoDonell, Deceased.
Duncan McDonell had died intestate and John McDonell chosen by the
family counsel as Curator of the vacant succession. It was his duty to get in
all the personal property of the deceased, pay his debts and divide the remainder
amongst those rightfully entitled to receive the same. A creditor, the well-
known John MoGill of Montreal was not paid and the Curator is summoned to
appear in the Court at the house of Richard Loucks in Osnabruck Township, and -
render an account of his stewardship. The order should not have been made in
the Court of Common Pleas at all but in the Prerogative Court, but the Judger
were the same and technicalities were not pressed too far in this Court.

GENERAL INDEX.

Abbott, James, 45, 89, 134.
Abbott, Mr., 89, 90.
Act of Grace, 357.
Adams, Andrew, 447, 449, 450.
Adams, Gideon, 415, 417, 418, 421, 422.
Adams, Samuel, 379, ^87, 389, 390, 398,
399, 406, 407, 414, 419, 420, 425, 427,
438, 443, 457.
Adolphus and Ellis, Queen's Bench Re
ports, 22.
Adolphus Town, 299, 301, 307, 308, 310,
322
Adolphustown, 217, 234, 236, 248, 263, 267.
Advocate General Marriott, 18.
Advocates, CJanadian, 9, 14.
Agent lor Indians ot Oswegatchie, 448.
Alley, George, 448.
Ainsley, Amos, 230, 271, 274, 276, 277, 287,
290, 336, 345.
Ainsley, Samuel, 199, 252, 274.
Airs, Ephriam, 360.
Aisne, Sarah, 141, 142, 145.
Aitkin, Alex'r, 202, 268, 269.
Aitkinson, William, 202.
Albany, 355, 357, 358.
Albrant, Francis, 424, 426.
AUck, Jacob, 414, 417, 420, 422.
Allen, — 261, 269.
^llen, James, 159, 161, 163.
Allen, Jonathan, 297, 299, 300.
Allen, Joseph, 210, 212, 213, 215, 216,
224, 228, 229, 230, 234, 238, 248, 251,
253, 254, 258, 259, 263, 266, 270, 293-
297, 299-301, 303, 304, 318, 319, 320,
322, 328, 334, 335, 337, 343, 346, 351.
America, Province of Quebec in, 5.
American debtors, 22.
American Territory, 2.
Anable, John, 392, 398, 406.
Anderson, — , 460.
Anderson, Eb'r, 387, 385.
Anderson, Joseph,- 392, 401, 403, 406, 407,
413, 423, 426, 427, 429, 436, 443. 444,
457.
Anderson, Samuel, 383, 385, 393, 40?, 403,
Annibal, John, 410.
Anticosti, Island of. 1.
Antill, Mr., 398, 400, 401, 404, 407.
Appeal, final Court of, 11, 12; Notice of,
415; Right of, 9, 15; Without. 98;
Writ of, 16, 457.
Appeals in England and Canada, 11;
Court of, 279.
Apprentices, jurisdiction, 11.
Arbitration, suits submitted to decision
by, 58, 73, 103, 111, 169, 172, 174, 253,
259, 327, 328, 332, 333, 335, 349, 392,
393, 397, 402, 404 ,408, 414, 421,. 440,
433, 434, 435, 440-442.
Armstrong, — , 361.
Armstrong, John, 272, 342.
Armstrong, Thomas, 300.

Arnold, — , 14.
Arnold, Frederick, 36, 45, 54, 140, 141.
Arnold, Oliver, 272, 316.
Arnoldie, Mr., 272; Arnoldie, Peter, 271.
Arrest ot the body for debt, 17, 20.
Arts, 8.
Ashburn, John, 382.
Ashley, W'm, 201.
Askew, Rohert, 344.
Askin, John, 25, 29, 31, 32, 37, 38, 40, 46, 48,
49, 60, 63, 64, 67, 70, 74, 90, 92-95, 134,
144, 152-155, 159, 162, 164-167, 170-176,
178, 187, 189.
Askin, Lidia, 368.
Askin, Schieffeling and, See Schieffeling
and Askin.
Askwith, John, 175.
Asselstine, John, 300.
Asselstine, Peter, 306, 307.
Assize, Courts of, 6, 9-12, 15; Judges of, 8.
11; of Novel Disseisin, Mort d'ances-
tor and attaints, 10.
Atkins, Alex'r, 255.
Atkinson, Wm., 230, ,315.
Attaints, 10.
Attorney-General, 17.
Augusta, 359, 361, 364, 366, 369, 370, 374,
413, 418, 4.29, 440, 446, 448.
Court ot Common Pleas held at, 372, 374.
Aula Regis, 7, 10.
Auldjo and Maitland, Merchants. 395, 458.
Ault, Nicholas, 410.
Avery, Jordan, 142, 145.
Babcock, David, 302.
Baby, Duperon, 429.
Baby, Frangois, 162, 163, 179.
Baby, Jacques, 97, 99, 162, 163.
Badgly, Dobie and, See Dobie and Badgly.
Baily, Levy, 410.
Baker, Eiisha, 445.
Baker, Frederick, 306, 307.
Baker, Jno., 218.
Ball, Shedrach, 299, 307.
Ball, Solomon, 299, 301.
Ballar, — , 123.
Bankrupts, laws respecting, 3.
Barbeau, Frangois, 72.
Barne, John, 302.
Barnhart, George, 381-385, 388-391, 393,
395, 396., 400-402, 410, 455, 488.
Barnhart, John, 365^368, 400-402, 458.
Barrister, 14.
Barrow, — , 305.
Barron, — , 96.
Barron, Jos., 27, 33. 51, 66, 69; 70, 94, 116,
117.
Barron, Pierre, 82.
Barthelon, Joseph, 173.
Bartiaume, Jos., 139.
Bartlet, Joseph, 375, 438.
Barton. John, 438, 443, 445, 450, 460.

[461]

462

INDEX

Barton, Joseph, 438, 443, 445, 450, 460.
Barton, William, 443, 445.
Bass, John, 412.
Batison. John, 203.
Baubien, Jean B'te, 51.
Bauchette, Capt. John Baptiste, 307.
Bay of Quinty, 360.
Bazinette, Joseph, 182.
Beasley, Thomas, 282.
Beaubien, Antoine, 179, 189.
Beaubin, Mr., 129.
Beaubis, Charles, 108.
Beaufait, Louis, 179.
Beaufor, Antoine, 98.
Beauford, -\ntoine, 110, 111.
Beaulieu. Louis, 160, 161, 173, 174, 177.
Beauparlent, J. B'te, 85.
Beikie, — , 437.
Beikie, John, 403, 411, 429-431.
Beikie, Wilkinson and. See Wilkinson and
Beikie.
Beianger, Philipp, 157, 159.
Belcour. F. D., 85, 116, 125.
Belcourt. F. D., 80.
Belcourt. Notaire, 118.
Bell, Duncan, 286, 288, 294, 297, 312.
Bell. William, 206, 210, 254, 312.
Bellair. Charles, 47.
Belangy. Philip, 83, 86.
Bellar, Latour dit. 90, 92-95.
Bellard, Ettienne Latour dit, 75.
Belle River, 131.
Bellecour, — , 99, 180, 126', 127.
Bellecour, Frangois Deriusseau de, 115,
116.
Bellonger, Raphael, 60, 71.
Benac, Mr., 75.
Benac, Poller, 90, 97.
Benac, Portier, 77, 84.
Ben, John, 299-302, 312.
Benjamin, James, 98, 101.
Benenkin, William, 300, 301.
Bennet, Charles, 196, 198, 199, 388, 389.
Bennett, Charles, 252, 323.
Bennett. Tho's, 201.
Bennit, Sherwood and. See Sherwood and
Bennit.
Bennitt, Oharies, 395. 411, 416, 419, 422,
429, 432-434, 438, 439, 442, 458.
Benoit, Louis Causley dit, 89.
Benson, Jacob, 299, 301.
Berar, Fran. La Pine dit. 144.
Berkley, Whittford vs., 277.
Bermicar, William, 281.
Betton, David, 258, 267, 269, 271, 272, 278,
282. 284, 323,
Bewell, William, 362, 363.
Biekie, John, Merch't. 377, 378, 384-386,
410.
Bigras. Genevieve Fovelle, 137.
Bigras, Janvieve Fovelle, 77 .
Billette. Francois, 168, 171, 177.
Billiet, Francois, 142, 146.
Bird, Capt., 109.
Bissell, — , 460.
Bissell, David, 4lS, 423, 426.
Blackstone, 8.
Blackstone's Reports and Commentories.
278. 279.
Blake, John, 244.

Bleak, Doctor, 219.
Bleakly, Josiah, 364.
Bliss, Dan'l, 86, 88, 89.
Bluard, — , 460.
Bluard, Thomas, 435, 446.
Bold, Thos., 363.
Boisblane, Isle of, 109, 110.
Bolton, Henry, 414, 421, 428, 430, 432, 434,
441, 459.
Bone, William, 347.
Bonlsteel, Christian, 412, 418, 419.
Bonlsteel, Christy, 435.
Bonlsteel, Jacob, 412, 418, 419, 435.
Booth, Abner, 373, 374.
Booth, Jesse, 216.
Boothe, Joshua, 237, 239, 249, 259, 260,
262.
Boston, 357.
Botsford, Henry, 143, 182, 186.
Bottom, Elijah, 373.
Bouck, Frederick, 414.
Bougart, Jacob, 69.
Boullard, Antoine, 55, 69.
Boureginon, Louis, 142, 146.
Bourdon, dit La Breche, 78, 80.
Bourassa, Louis, 172.
Bower, Gaspar, 336.
Bowers, Peter, 292.
Boyce, Andrew, 299, 301.
Boyd, James, 302, 405, 409, 416.
Boyd, Thomas, 302, 405, 409, 416.
Bradshaw, James, 350.
Bradshaw, John, 394, 403, 422.
Branconnier, Pierre, 78, 80, 86, 88.
Brannan, William, 399.
Brass, Cornelius, 301.
Brass, David, 202, 213, 226, 227, 245, 252,
271, 292.
Breakenridge, James, 435, 440, 447.
Brewer, Aaron, 201.
Bris.:o, Nathan, 252.
Briscoe, Norris, 294, 297.
Bridges, jurisdiction as to, 11.
Britain, Detroit and Michilimacinac lost
to, 4; Perfidy of, 22.
British America, 2.
British born subjects, juries in actions
between, 13, 16.
British Isles, 2, 11; Government, compen
sation to Loyalists by, 409; Governor,
5; Nort)h America Act, 22; Occupation
of Michigan, Wisconsin, etc., 22; Ter
ritory, 5; Troops, 355, 357; World, 12.
Brouse, Peter, 4^5, 417, 421, 422.
Brown, Dorathy, 367, 369.
Brown, John, 364, 366.
Brown, Mathew, 293.
Brown, Robert, 181.
Brown. Stephen, 325.
Brown, William, 129.
Brownell, Joseph, 380-382, 388, 410, 4.55.
Browning, John, 410.
Bruce, David, 376, 378, 379, 403.
Bruce, William, 430.
Brundage, John, 445.
Bruner, Peter, 377.
Bryan, John, 418, 428.
Bryan, Rev. John, 379, 454.
Bryon, John, 410.
Buell, Bemsley, 413, 430, 439-441, 459

INDEX

463

Buell, Marcy, 413, 430, 439-441, 459.
Buell, Timothy, 413, 430, 439, 440, 459.
Buell, William, 413, 429, 430, 439-441, 459.
Buffalo, 22.
Buller's Law of Nisi Prius, 277.
Burliy, John, 306.
Burel, Jacques, 163, 165, 166, 168-171, 173.
Burk, George, 307.
Burke, Edmund, 22.
Burlieu, Louis, 158.
Burley, Emmerson, 307.
Burly, Freeman, 307.
Burnett, Thomas, 222, 283.
Burns, John, 292.
Burrel, Jacques, 164.
Burrel, John, IOS, 105, 171, 174.
Burrett, Stephen, 341.
Burrow's Reports, 279, 280.
Burton, Joseph, 392, 398, 403, 457.
Busby, Thomas, 204, 207. "
Bushell, Rich'd, 314.
Butler, Martin, 195, 196, 198.
Butler, Trulove, 428, 441.
Buttler, Colonel John, 401.
Buttler, John, 377.

Cadman, John, 410.
Cadman, William, 293, 332. 335.
Cafford, John, 395-397, 406, 4.5S,
Cain, — , 437.
Cain, David, 436.
Cain, Isaiah, 435, 446.
Cain, John, 400, 406.
Caldwell, Capt., 74.
Caldwell, William, 178.
Callagan, — , 109.
Camden, 265.
Cameron, Alexander, 357.
Cameron, Daniel, 387, 388.
Cameron, John, 358, 396, 458.
Campbell, Alexander, 371, 373, 374, 380,
419, 442, 455.
Campbell, Colonel, 357.
Campbell, Daniel, 156, 378, 388, 397, 410.
Campbell, George, 303, 332, 369, 370.
Campbell, James, 373, 427.
Campbell, Richard, 199, 233,-270.
Campbell, William, 318, 319.
Campeau, Bazil, 178.
Campeau, Bernard, 157.
Campeau, Jno. B'te, 45, 87, 134, 142, 145.
148, 149.
Campeau, Joseph, 186-189.
Campeau, Louis, 76, 86, 88, 122, 126, 133,
135, 186.
Campeau, Mad., 77,
Campeau, Madame, 136.
Campeau, Paul, 77, 136.
Canada: Canada Act, 3, 5; Appeals in, 11;
Conquest ol, 1 ; Dominion of, 3 ; French
in, 1; Geography of, 1; Justices of the
Peace in, 13; Kingsford's Historyof,
22; Laws of, 3; Lawyer in, 14; Pro-
Ti-ince ot, 3, 22; Roman Catholics In,
13; Under Military rule, 1.
Canadian Advocates and Proctors, 9;
Civil Law, 5; Library (Riddell), 22.

Canadians, Juries in actions between, 13,
16.
Cape Cat, 16.
Cape Rosieres, 1.
Capias, 16.
Capias ad Respondendum, 17-20.
Capias ad Satisfaciendum, 19-21, 29.
Cardinal, Pierre, 112, 116.
Carleton, Royal Instructions to, 14.
Carleton, Sir Guy, 4, 17.
Carley, Bartholomew, 436.
Carnahan, Joseph, 211, 217, 220, 32i, 323,
335.
Cams. Jacob, 391, 401, 414, 417, 420-422,
450.
Carpenter, Jacob. 337.
Carre, Daniel, 308.
Carscallan, John, 258-261, 267, 272, 273,
277, 280, 283, 288, 291, 296, 297.
Carsons, William, 208, 209, 279, 283.
Cartwright, Hamilton and. See Hamilton.
Cartwright, Honourable Judge, 349.
Cartwright, R., 192, 193.
Cartwright, Richard, 190, 193, 194, 196,
197, 200, 202-205, 211, 215, 216, 232-
239, 241-244, 246, 24r, 250, 252, 255,
256, 258, 260, 262, 266, 273, 275, 276,
279, 281, 282, 288, 289, 291, 292, 302,
306, 307, 311, 312, 314, 315, 320-329,
331, 333, 334, 337-353, 452.
Cascallon, John, 211, 237, 239, 240, 242,
245, 247, 250, 254, 257.
Casey, Willett, 215, 218, 267, 327, 330, 331.
Castey, John, 30, 35, 45, 54.
Castillion, Joseph, 70.
Cataraque, 234.
Cataraqui, 4.
Cattle straying at large, 98, 387, 457.
Causley, Louis, dit Benoit, 88-90.
Cawguochish (an Indian), 180.
Cacot, Jean B'te, 44.
Celleron, Chavallier de, 116.
Celeron, Chev'r, De, 179. 189.
Cera, Alexis, dit Coquillard, 142, 144.
Cera, Pierre, dit Coquillard, 142, 146,-- 147.
Certificate ot occupation, 262.
Certiorari, writ of, 9, 11.
Chabert, Francois, 76, 78, 91, 178.
Chabert, Joincairs, 179.
Chabouguoy (an Indian), 180.
Cheleurs, Baye des, 1.
Champlain, Lake, 1.
Chancellor, Lord, 12.
Chancery, Court of, 12, 455.
Chapperton, Jean B'te, 173.
Chapoton, Bapte, 173.
Charlottenhurgh, 355, 357, 358, 390, 433.
Charron, Antoine, 28.
Charron, Jacques, 31, 40, 74.
Chauvin, Jacques, 158, 159, 160.
Chartre, Francois, 34, 41. ,
Chene, Agath, 120.
Chene, Charles, 43, 56, 78,' 80, 81, 82, 86,
115, 119, 120, 121, 156.
Chene, Gabriel, 78, 80-82, 86, 87, 89, 92, 94,
96-98, 100, 107, 120.
Chene G. P. and T., 113-117, 120, 127, 128.
1,34, 135, 138.
Chene. Isidore, 74, 142, 149.

464

INDEX

Chene, Mons, 118.
Chene, Pierre, 44, 58, 87, 89, 92, 94, 96-98,
100, 107, 111, 119, 120, 148, 149, 151.
Chene, Toussaint, 78, 80, 82, 86, 87, 89, 92,
94, 96-98, 100, 107, 111, 120, 148, 149,
15L
Chenier, Heacelnt, 360.
Chester, John, 446.
Chester, Phebe, 446.
Chibbey, John, 299.
Chisholm, Alexander, 248, 260, 268, 269.
308, 312.
Children, care of illegitimate, 11.
Chief Justice, 6, 8, 9, 11, 13, 15, 16, 21.
360.
Chislestul, George, 180.
Choquet, Francois Du, 85.
Chorley, Simon, 217.
Chovin, Jacques, 177.
Chri-stie, John, 382.
Christie, Phebe, 382.
Christie, William, 33, 50, 122-124, 142, 146,
147.
Christie, Wm. C. 33.
Church, Oliver, 252, 286-288, 290, 296, 297,
317.
Cicot, J. B'te, 179.
Circuit Court, 322.
Civil Actions, 13, 19, 20; Cases, arrest and
imprisonment in, 18; Courts, 9, 11,
14, 15; Jurisdiction, 10, 11, 15, 22,
430; Law, 1, 2, 5, 15.
Clapp, Joseph, 292, 312.
Clark, Alexander, 179, 195, 199, 243, 272,
285, 286, 288, 291, 296, 297, 312, 332,
337.
Clark, David, 181.
Clark, Francis, 403.
Clark, General Alured, 4.
Clark, George Rogers. 4.
Clark, Hannah, 94.
Clark. James, 190, 192-194, 196, 197, 202,
211-213, 215, 236, 253, 258, 259, 261-
263, 268, 271, 273, 284, 330, 336, 337,
339, 349, 395-397, 452, 458.
Clark, Peter, 142, 205-207, 210, 249, 253,
256, 257, 262, 264, 330-335, 337, 346,
452.
Clark, Robert, 339.
Clark, Simon, 403, 406, 458.
Clark, Tho's, 164, 166.
Clauson, Caleb, 37,3.
Clearwater, John, 140-, 141.
Clerks of the Court ot Common Pleas and
of the Peace for the Districts ot
Upper Canada, 452, 453; Appointment
of Jacob Farrand, 354.
Cline, Catherine, 378.
Cline, Michael, 378.
Clouthier, Rene, 45, 54.
Clouthier, Zacharie, 122.
Clunes, John, 204.
(>)dd, Edward, 271, 283.
Coffin, Tho's, 378. 455.
Coffin, William, 371.
Cole, — , 322.
Cole, Bernard, 312.
Cole, Isaac, 320.
Cole, Simon J., 275, 280, 281, 313, 319, 320,
321, 322.

Coles, Peter, 320.
Coles, Simon J., 333.
Collier, Peter, 212.
Colonial Courts, appeals in, 11.
Colonial Magistrates, 11.
Colonies, growing troubles in the Thir
teen, 14.
Commission ol Peace, English, Scotch and
French names on, 452.
Compensation granted to Loyalists by
British Government, 409.
Conklin, Joseph, 352.
Conlin, Michel, 335.
Connor, James, 203-207, 214, 216-218, 220,
258, 267, 269, 271, 272, 276-278, 282-
284, 323.
Connor, John, 221, 22^, 333, 334, 336, 342,
346, 349.
Conroy, Mich'l, 360, 362.
Constitutional Act, 3.
Cook, Thomas, 199.
Coons, John, 407, 410, 424, 426, 427.
Coquillard, Alexis Cera, dit, 142, 144.
Coquillard, Pierre Ora, dit, 142, 146, 147.
Corner, Jacob, 306.
Corner, Paul, 306.
Cornwall, 4, 357, 358, 377, 392, 393, 403,
433, 452.
Cornwall, Court ol Common Pleas held at,
355, 376, ^427, 45.2.
Cornwall, Joshua, 182, 186.
Cornwall, Township of, 356, 392, 393, 403.
Coroner, Courts of the, 14.
Coroner of the District, 183, 429.
Cottier, William, 401, 403.
Cough, George, 424, 426.
Cough, Michael, 424, 426.
Cote des Pour, 107.
Cotte, Presque, 96, 99, 108.
Council of the King, 7.
Court, Circuit, 322; Clerk of, 21; of
Appeal, final, 6, 9, 10, 11, 12, 15; ot
Appeals, 279, 281, 282; of Assize, 6, 9.
10, 11, 12, 15; of Chancery, 12, 455;
of Civil jurisdiction, 10, 453; of Com
mon Bench, 10-12; of Common Pleas,
7-19; held at Augusta, 372, 374; at
Cornwall, 355, 376, 427, 452; Eastern
District, 388, 405, 410, 427, 435;
Edwardsburg, 359, 365-367; Hesse,
Dist. of, 23. 25, 26, 29, 33, 37, 38, 41,
43, 44, 45-48, 50, 54-58, 60, 63, 65, 68,
70, 73, 75, 77, 80, 85, 87, -88, 91-94, 97,
100, 108, 112, 116, 121, 126, 128, 133-
135, 138-140, 142, 143, 147-149, 151,
153; Kingston, 190, 232, 258, 285, 313,
341; L'Assomption, 23, 25, 37, 54, 72,
75. 77, 80, 85, 87, 88, 91-94, 97, 100.
108, 112, 116, 126, 128, 133-135, 138-
__ 140, 142, 143, 147-149, 151, 153, 155.
157, 158, 160, 162, 163, 165-168, 170-
175; Luneburg, 376, 382, 397, 452-454;
Mecklenburg, 258, 285, 313, 341, 452,
¦ 458; Montreal, District of, 13, 15, 371,
.385, 386, 396. 452; Nassau, 452; New
Johnstown, 364, 367, 370, 435; New
ark, 452; Osnabruck, 379, 381 383
385, 386, 388, 390, 405, 410, 452-'stor-
^Ji'^hP^' ^^^' ^^2; Western District,
155-160, 16i2, 163, 165-169, 170-175-

INDEX

465

Establishment of Courts in proposed
Districts ol Illinois, St. Vincenne,
Detroit, Missilimackinac and Gaspee,
453; Justices appointed in differ
ent Districts, 452; of Exchequer,
, 11, 12; of General Gaol Delivery, 6-8,
11, 21; in Hesse, 21; of His Majesty's
Prerogative for Dist. of Luneburg,
390; ol King's Bench, 6-15, 17, 21, 22,
279; of Nisi Prius, 10, 11; ol Oyer and
Terminer, 6-8, 11, 14, 21; held at
L'Assomption, Dist. of Hesse, 178,
180, 181, 182, 186, 189, 453-; ot Queen's
Bench, 22; Prerogative, 460; Superior,
6, 9, 12, 15.
Courts, Civil, 9, 11, 14, 15; Criminal, 5, 6,
7, 9, 14, 15; establishment ot, 14; in
terior, 9, 11; ol the Coroner of each
Dist-, 14; of the Province, 14; of
Judicature and Public Justice, 5, 6;
ot Justices of the Peace, 10, 13; ot
Quarter Sessions, 8, 10, 12, 14; Her
Majesty's, 19.
Couteur, J. B'te, 79, 85, 86, 88, 89, 91.
Couteur, Jean Baptiste, 107.
Covell, Simeon, 382, 405, 406, 409, 413-415,
417, 419, 423-426, 428, 437, 459, 460.
Coville, Simeon, 388, 401, 405, 441, 446-448,
Coville, Capt. Simon, 445.
Cox, Thomas, 26, 30, 35, 45, 51, 56, 59, 65,
69, 182, 186.
Cox, William, 248, 253, 259.
Craiste, Jno. Bapte., 123-125.
Crane, Eiisha, 234, 264.
Crawford, Bryan, 235, 252.
Crawford, William, 254, 346, 347.
Crawford, W. R., 346, 347.
Crawford, William Radford (Sheriff of
Mecklenburg), 452.
Cray, Jno., 80, 85.
Cresswell, Mr. Justice, 22.
Creste, — . 131.
Creste, J. B., 129, 130.
Crete, Jean Bte., 26, 32, 35, 40, 43", 48, 55,
60, 67, 73.
Criderman, Joseph, 430.
Criderman, Michael, 281, 334.
Criminal Courts, 5, 6, 7, 9, 14, 15.
Criminal Jurisdiction, 5-7, 10-12, 453.
Criminal Law, 1, 3, 5.
Crisler, (Crysler, Krysler) Phillip, 382.
Crofton, Edward, 104.
Crofton, Molly, 122.
Cronk, Abraham, 292.
Cross, Jenny, 446.
Crysler, (Crisler, Krysler) Phillip, 364,
370 371 377
Culbertson, John, 259, 269, 273.
Cumming, John, 240, 287, 288, 290, 295,
300, 329, 330, 331.
Cummings, — , 329, 330.
Cuntryman, Jacob, 378, 456.
Curia Regis, 7.
Cumard, John, 297, 335.
Curry, Ephraim, 445, 447, 449.
Cutan, Josiah, 181, 185, 186, 189.

Daderick, Michael, 307.
Daloe, Abraham, 312.

Dafoe, John, 308, 312.
Dalson, Mat, 96, 99, 131, 164, 18«.
Darby, John, 297.
Daugherty, Hanna, 376, 454.
Daugherty, James, 376, 378, 454.
David, Moses, 175.
Davis, Henry, 312.
Davis, Richard, 445, 447, 449, 450.
Davy, Henry, 300, 302.
Davy, John, 299, 301.
Dawson, James, 237, 239, 240, 249, 259.
Day, Bar'bs, 195, 201, 253, 274, 348, 3ol.
352.
Dayly, Peter, 299.
Deacons, Geo., 69.
Death penalty, 28.
Debt, arrest ot the 'body for, 17; recovery
ot a, 15.
DeCaroux, Andre, 86.
Decaroux, Andre, 36, 69, 83, 99, 107, 112.
142.
Deckers, Benjamin, 437.
Declaration of Independence, 4.
Defoe, Conrad, 410.
Dedrick, Michael. 200, 283, 319.
Delisle, Alexis, 182.
Dempsey, Thomas, 338.
Denault, Joachim, 360, 362, 363, 364.
Dequindre, Antoine, 27, 70.
Dequindre, Antoine Dagnio, 37, 47, 60, 65,
72, 74.
Dequindre, Catherine Desriviers Lamoin-
diers, 65, 72.
Derome, Andre, Dit Decarreaux, 142.
Derrick, Andrew, 271.
Detler, John, 281, 307.
Detroit, 4, 25-28, 31-35, 37, 38, 42, 45-50.
58, 61, 63-68, 71-73, 84, 91, 109, 129.
142, 147, 162, 165, 175, 178, 179, 181,
182, 183, 186-188; Brought within the
Province of Quebec, 452; Command
ant or Governor of, 429; Establish
ment of Court of Common Pleas iu
Posts of, 430; Held by Britain, 4;
Lost to Britain, 4, 22; Memorial to
Lord Dorohester trom Merchants,
Traders and Inhabitants ot, 453.
Detroit River, 1, 61, 129, 187.
Devoe, Conrad, 382,
Dicks, Jacob, «0, 85.
Dies, Mathew, 238, 242, 244, 246, 247, 251.
260, 262, 268, 323.
Dillehachy, Christian, 428.
Dimond, Jacob, 343.
Dingman, John, 212.
Division Court. 17.
Dixson, John, 383, 410.
Dobie and Badgely, 409, 459.
Dobie, Richard, 26, 28, 32, 40, 46, 58, 59.
Dodormead, Jno., 85.
Dodymead, John, 182.
Dolson, Isaac, 31, 36, 40, 49, 60, 61, 62.
Dolson, Mathew, 54.
Dominion of Canada, 3, 22.
Donaldson, James, 66, 73.
Donavon, Florence, 259.
Donovan, Mathew, 314.
Dorchester, G., Commission of Justice ot
Court ot Com. Pleas., 353, 354.

466

INDEX

Dorchester, Lord, 4, 5, 354, 355; Memorial
and Representation of Merchants,
Traders and Inhabitants ot Detroit,
430.
Dorchester's Bounty, 268.
Dorin, Jacob, 415, 421, 422.
Dorland, Philip, 190, 191, 193, 196, 197,
204.
Dorland, Thomas, 194, 322, 350.
Douchoquet, Francois, 85, 86, 88, 89, 9L
Doyle, Thomas, 449.
Drew, Nancy, 376-379, 454.
Drew, Paul, 356, 431.
Drouillard, — , 171, 177.
Drouillard, Charles, 163, 168.
Druillard, Baptiste, 129.
Drummond, Peter, 363, 427.
Dryburgh, James, 198.
Dubois, Francis, 58, 74.
Dubury, John, 347.
Duchene, Manville, dit, 170, 172.
DuChoquet, Francois, 85.
Dufaux, Messrs. Friehette and. 137.
Dufresne, Ant, 136, 168, 171, 173.
Dugas, Paul, 86-88.
Duggan, Wm., 143, 145, 152.
Dulmage, David, 299, 300, 302.
Dulmage, John, 363, 373.
Dulmage, Philip, 447, 449, 450.
Duncan, Jno., 199, 230, 245, 252, 271, 274,
314.
Duncan, Richard, 353, 355, 359, 364, 365,
367, 370-373, 375, 376, 378, 381, 384,
390, 397, 409, 458.
Dundas, County of, 401, 404.
Dunn, George, 83, 84,
Durand, — , 83, 92, 94, 97, 103, 116, 122,
126.
Durand, Mr., 103, 111.
Durand, Pierre, 53, 72, 86, 89, 91, 111, 112,
135.
Durser, Arthur, 283.
Dutchman's Point, 22.
Duval, Ignace, Tyot dit, 141, 145.

Eagar, John, 283, SOB.
Eastern District, 5, 411; Appointment of
Justices ot Court of Com, Pleas, 353,
388; Court of Common Pleas in, 388,
405, 410, 427, 435.
East's, Report ot cases in Court of King's
Bench, 22.
Eberts, — , 166.
Eberts, Herman, 162, 164.
Edgar, John, 221, 222, 250, 334, 336, 344.
Edwardsburg, 362.
Edwardsburg, Court held at, 359, 365-367.
Edge, Joseph, 178, 182, 186.
Edge, Samuel, 78.
Elam, Jas., 90.
Blam, Jos., 133.
Edward I, 7.
Bdward III, 8, 11.
Eldman, Lawr's, 204-206, 210, 215, 216,
222, 223, 225, 226, 235, 236, 317, 319.
Election, trial rising out of, 289.
Blerbeck, Emanuel, 271, 292.
Elerbee, Eimanuel, 252.
Elizabethtown, 359, 361, 362, 374, 440.

Ellioe, Robert and Co., 230.
Elliott, — , 170.
Elliott, M., 172, 173.
Elliott, Matthew, 162, 164, 169, 176, 179.
Emer, Peter, 430.
Emerson, John, 371, 403, 433.
Etaiery, Bernard, 376.
-Eimpey, Adam, 404, 410, 415, 417, 420, 422.
Bmpey, Jacob, 378, 387, 388, 403.
Empey, John, 403, 406, 410.
Empey, Phillip, 410.
Bmpey, William, 371, 410.
England, Court ot King's Bench in, 7;
Laws of, 1-3, 5-7, 9, 10, 12, 21; Roman
Catholics in, 13.
English Constitution, 278; Courts, 10, 11;
Jurisprudence, 150; Law, 17, 132, 137,
231, 455; Lawyers, 14; Names on
Commission of Peace, 452; or French
in Courts, 14, 16; Tenure, 2.
Englehart, Bernard, 248.
Equity. 12.
Ernest Town, 233,- 277, 289, 294, 297, 302,
308, 309.
Ernestown, 237, 240, 249.
Everett, John, 245, 274, 325.
Everitt, John, 230, 252.
Every, Rebecca, 368.
EJvets, Oliver, 446.
Exchequer, 11.
Execution against the body, lands, etc., 19.
Extortions. 8.
Facer, Harry. 134. 142, 146, 178.
Fagler, John, 299.
Fagnon, J. B'te, 144.
Faineaul, Jean B'te, 151.
Fairfield, Arch'd, 283. 306, 344.
Fairfield, William, 316.
Fairman, William, 292, 299.
Falkner, — , 437.
Falkner, Joseph, 411, 429.
Falkner, William, 380-382, 387, 388, 431,
432, 444, 455.
Falsity, 10.
Fanier, John, 190, 192-194, 196.
Pauls, John, 201.
Farington, Robert, 299.
Farley, Geo., 201, 213, 215, 224, 229-231.
Farley, Mr., 314.
Farquers, — , 377.
Farrand, Jacob, 354, 378, 406, 411, 429, 432,
438, 441, 442, 444, 445, 452, 458,
Farrand, Mr., 422.
Parrington, Robert, 301.
Faulkner, William, 380, 455. ,
"Felicity," fhe, 84.
Ferguson, — , 257.
Ferguson, Israel, 204, 298.
Ferguson, Jacob, 301.
Ferguson, John, 190, 191, 193, 194, 196,
197, 203, 204, 206, 213, 220, 223, 225,
226, 242, 243, 245, 247, 251, 255, 260-
262, 267, 268, 272, 273, 277, 280, 283,
315. 340, 346, 347.
Ferguson, Jonathan, 299, 302.
Ferguson, Richard, 233, 236, 238, 271, 293,
298, 301, 303, 304, 334, 341.
Ferriage aUowed, 85.
Ferris, Joseph, 309, 315.

INDEX

467

Fete de-Dieu, 85.
Fetterly, Peter, 414, 415, 417, 420, 422.
Fields, Joseph, 430.
Finchiey, Thomas, 35, 36, 43, 44, 53, 54, 58,
69.
Finkle, Geo., 318.
Fisher, Abe, 220.
Fisher, Alex'r, 206, 223, 225, 226.
Fitchet, James, 430.
Fitsimmons, Thos., 201.
Fleet, James, 76, 78, 83, 84, 86.
Fleurie, Francois. 181.
Fontenoy, Francis, 29, 37, 47-50.
Forestallings, 8.
Ford, Capt, 84.
Forgery, 10.
Forrest, Mat'w, 196.
Forsyth, — , 170.
Forsyth, James, 410.
Forsyth, Joseuh, 202, 213, 219, 241, 246,
251, 252, 344, 346.
Forsyth, Joseph, and Co., 221, 242, 275,
438, 441, 445.
Forsyth, William, 80, 85, 157, 162, 164,
169, 172. 176, 179.
Port Erie, 63.
Foster, John, 313, 321, 322.
Foster, William, 292, 312.
Fountain, Richard, 384.
Fox, Oharies James, 22.
Pox, Philip, 53.
Prance, Law ot, 95, 132, 137.
Francis, John, 190.
Fraser, — , 437.
Fraser, James, 30, 35, 36, 43, 45, 53, 54, 56-
58, 65, 70, 175, 178.
Fraser, Mr. Justice, 456.
Fraser, John, Judge ot Court ot Common
Pleas, Dist. ot Montreal, 385, 455.
Fraser, Thomas, 363, 427, 445, 447, 449.
450.
Fraser. William. 363, 405, 409, 411, 414,
416, 419, 425, 427, 445, 447, 450.
Fraser, William (Cant), 362.
Fraud, actions for, 10.
Frederick, — , 108.
Frederick, John, 292.
Frederick, Jno. B'te, 99, 112, 116.
Fredericksburgh, 232, 236-238, 240-242,
246, 251, 254, 255. 261. 267, 268, 280,
286, 287, 290, 294, 296, 297, 302, 308.
Fredrick, David, 376.
Freeman. Robert, 83.
French Canadian Laws, 2, 12. 21.
French Canadians, allowed eighteen
months to leave Canada. C: ''"¦ Coiivt=
intended chiefly for, 12: Di-^^iayed,
17.
French, Gresham, 367.
French, Jeremiah, 371, 382.-384, 393, 395,
396, 403, 410.
French Laws, 1, 9; French names on Com
mission of Peace, 452; or English in
the Courts, 14, 16; rule, 4; settlers,.!.
Frerot, Fran., 97, 99.
Friehette, Messrs. Dufaux and, 137.
Frobisher, McTavish and Co., 385.
Froom, James, 445, 447, 450.
Fry, Philip, 452.
Prymier, Nicholas, 421.

Gale, James, 248-250, 256, 260, 284.
Gallaway, Geo., 201, 271, 276, 277, 287, 290.
Gallaway, John, 257.
Gallinger, Christ', 430.
Gamelin, Francois, 117, 118, 128, 178.
Gamelin, Joseph, 27, 31, 40, 49, 65, 67, 63.
Garloch, Jacob, 420.
Garlough, Jacob, 414.
Gaspg, 21; District of, 452.
Gaspee, 4, 453.
Gaudet, Joseph, 158, 159.
General Assemblies, 1, 2.
General Gaol delivery, 6-8, 11, 21.
Geniac. J. B'te, 36.
Geniez, Louis, 153, 154.
George III, Ordinance, 15.
George, John, 293.
Georgeon, — , 333.
Georgeon, Chris., 194, 195, 199. 200, 205.
252, 26.7, 268, 271, 274, 307, 310, 326-
328, 331, 332, 334.
Gerardin, Francois, 108.
Gerardin, Mr., 105.
Germain, Isaac, 25, 28. 34, 41.
German, — , 296.
German, John, 217, 253, 255, 294, 295, 301,
370, 458.
German, Mr. 255.
Gerolamy, James, 294, 299, 300.
Gill, Jas., 211, 219.
Gill, John de Courcy, 236, 239, 255, 258,
259, 261, 268, 270, 273, 284, 322, 324.
Girty, Simon, 74.
Girardin, Charles, 178.
Glengarry County, 438. 439.
Goddette, Dominique, 173.
Godfroy, Gabriel, 79, 85, 86, 88, 89, 91, 179.
Godfrey, River, 4, 6.
Godfroy, Sieur, 118.
Godrich, Salmon, 165.
Golin, Francois, 150.
Gordon, Gabriel, 264.
Gordon, Robert, 405, 409, 415.
Gouin. Charles, 47, 48, 50, 179.
Gouin, Mr., 182.
Gouin, Nich's, 179.
Gouin, Robert, 186.
Gourneau, Robert, 51.
Governments formed in North America, 1.
Governor, 1, 2, 4, 5, 16, 17, 269; and Coun
cil, 6, 11, 12, 15, 21.
Governors and Councils, 1.
Gowie, Robert, 66, 72, 135.
Grant, — , 437.
Grant, Alexander, 179, 194, 202, 216, 245,
399, 400, 406, 432.
Grant, Allen, 374.
Grant, Archibald, 254.
Grant, John, 403.
Grass, Mich'l, 202, 226., 227, 230, 245, 246,
263, 271, 274, 292, 349.
Graverat, — , 104.
Graverot. Albert, 180, 181.
Gray, Colonel James, 383, 385.
Gray, James, 371.
Great Seal of the Province, 4, 15, 354, 355.
Green, John, 292, 293, 304.
Greer, John, 299.
Gregory, John, 30, 38, 39.
GrenvUle County, 398.

468

INDEX

Griffln, Joseph, 411, 413, 423, 425, 460.
Grigs, — , 341.
Groce Point, 106.
Grocher, Pierre, 180.
Groesbeck, — . 93,95, 103, 112, 113, 117,
139.
Groesbeck, Mr., 107.
Groesbeck, William, 27, 34, 40, 49, 56, 65,
67, 70, 104, 131, 137, 159, 147, 153, 156,
165, 167, 168.
Grooms, Elijah, 337.
Grose Point, 142.
Guardine, Fran., 96, 99.
Guidet, Joseph, 155.
Guilbeau, — , 164, 166.
Guilbeau, Jean, 162.
Guillet (an Indian), 180.
Guirot, Buton, 302.
Gurner, John, 274.
Gyeaux, Guillaume, 26, 30, 51, 52.
Gyeaux, Louis, 52.
Gyeaux, Nicholas, 51, 52.
Gyeaux, William, 51.
Hagerman, Nicholas, 343.
Hale, Nathaniel, 208.
Hall, Samuel, 141, 143.
Hallowell, James, 385.
Ham, John, 306.
Hamblin, Silas, 445, 447, 449, 450.
Hamilton and Cartwright, 232-234, 244,
245, 250, 270.
Hamilton.-Robert, 216, 233, 237, 238, 241,
242, 250, 255. 256, 452.
Hanault, — , 165, 168, 170.
Hands, Wm., 85, 87, 96, 99, 108, 143, 148,
163, 168, 175, 177.
Hanley, Ichabod, 245.
Hare, Stephen, 294, 297.
Harffy, — , 96, 112.
Harffy, Wm., 88, 164.
Harkimer, Honjost, 245.
Harkimer, John Jost, 202, 204-206, 210,
213, 216.
Harkimer, Lawrence, 202.
Harpel, George, 302, 303, 306.
Harper, Geo., 200, 291, 319, 325.
Hiarpie, George, 296, 319.
Ha.rrington, Abell, 388, 405, 408. 414, 459.
Harrington, James, 388, 405, 408, 414, 459.
Harrison, William, 292, 349.
Harrow, Alexander, 55, 56, 73.
Harsen, Jac»b, 104-106.
Harthorn, Wm., 96, 98, 108.
Hartman, John, 300.
Hawley, Hickbut, 271.
Hawley, Ichabad, 341.
Hawley, James, 199.
Hawley, Sheldon, 292.
Hay, — , 437.
Hay, John, 432.
Hayns, Mich'l, 382.
Hazel, — , 98.
Hazel, Bdw'd. 92. 93, ?5. 100, 108, 113, 126.
Hazel, Mr., 101, 109-111.
Heeck, John, 445.
Helmer, John, 383.
Henry III, 7.
Hesse, Andrew, 300.

Hesse, Court of, 21; Court of Common
Pleas, District of, 23, 25, 26, 29, 33,
37, 38, 41, 43-48, 50, 54-58, 60, 63, 65,
68, 70, 73, 75, 77, 80, 85, 87, 88, 91-94,
97, 100, 108, 112, 116, 121, 126, 128,
133-135, 138-140, 142, 143, 147-149, 151,
153; District of, 4, 5, 15, 21, 452.
Hesse, Groorge, 299.
Heward and McCaslan, 102, 103.
Heward, Hugh, 25, 31, 40, 42, 49, 60, 102,
10.5, 144, 150.
Heward, James, 25.
Heward, Mr., 100, 108-110.
Hick, John, 447-450.
Hickey, John, 424, 426.
Hicks, David, 300.
Hicks, B., 254.
Hicks, Bdward, 20'8, 281, 293, 300, 303,
327, 334, 346.
Hicks, Lewis, 302.
Hicks, Louis, 299.
Highways, jurisdiction, 11.
Hilary Term, 6.
Hodiesne, Gervaise, 134, 135, 142, 146,
Hog Island, 34, 41.
Hogan, David, 369.
Hogle, Bastion, 306.
Holmes, Hugh, 112, 126, 182, 186.
Holmes, John, 315, 325.
Home District, 5.
Honeywell, Rice, 428, 440.
Hoople, John, 419, 420.
Hope, — , 437.
Hope, Richard, 436, 444,
Horning. John, 283, 307.
Hough, Barnabas, 237.
Hovenden, Mr., 225.
Hover, Henry, 313.
Howard, John, 195, 200. 221, 236, 251, 258,
260, 270, 272, 276, 292, 342, 352.
Howell. John, 196, 243, 247, 255, 332.
Hoyle, George Peter, 212.
Hoyle, James, 301.
Hoyle, Mr., 386.
Hoyle, Rosseter, 377, 385, 387, 455.
Hoyle and Small, 386.
Hubble, Nicholas, 300, 301.
Huff, Paul, 292.
Humphry, Alexander, 446.
Humphry, James, 445. 449.
Humphrys, Alex'r, 363, 364, 366.
Humphrys, James, 363.
Humphrys,'* Thomas, 293.
Hunt, Terrence, 266, 273-275.
Hunter, David, 363.
Hurd, Ashel, 369, 370.
Hurlburt, Herman, 445.
Hurlburt, Moses, 445.
Huyck, John, 218, 267.
Hyck, John, 218.

Illegitimate children, care of, 11.
Illinois, 3, 4; British occupation of, 22.
Imprisonment in civil cases, 18.
Inchantments, -8.
Independence, Declaration of, 4.
Indian: Gift ot land, 41; Interpreter, 178:
Post, 71; Trader, 152; Trial for mur-

INDEX

409

der ol, 179, 180; Trial for murder by,
180; Tribes, 1.
Indian affairs. Deputy Agent of, 46.
Indiana, 3; British occupation of, 22.
Indians of Oswegatchie, 448; Trade with,
71.
Ingram, Charles, 274.
Ingrossings, 8.
Ironside, Mr., 87.
Ironsides, George, 62, 63, 96.
Iroquois River, 448.
Ivory, Jordan, 53, 56, 65, 69.
Jacob, David, 428.
Jacobs, David, 410.
Jacobs, McKillip and. See McKillip and
Jacobs.
Jackson, David, 301.
Jackson, Henry, 445, 447, 449, 450.
Jackson, James, 307.
Jackson, Jethro, 299.
Jalbert, Antoine, 46, 60, 71, 72.
James, Gilbert, 197.
James, Nathaniel, 301.
James, Thomas, 195, 197.
Jasment, Toussaint, 125.
Jay's Treaty, 22.
Jessup, Edward, 353, 379, 386.
Johns, George, 158, 160.
Johns, Hugh, 389, 391, 397, 457.
Johnson, Andrew, 301.
Johnson, Daniel, 292, 307.
Johnson, George, 303.
Johnson, Henry, 217.
Johnson, Wm., 202, 248, 260, 266, 268, 269.
Johnston, James, 381, 383.
Johnston, George, 381, 382, 456.
Jones, Daniel, 363, 366, 374, 387, 388, 391,
413, 429.
Jones, E^phraim, 360, 361, 366, 373, 418.
Jones, John, 427, 440. ,
Jones, Mr., 446.
Jones, Nathaniel, 299.
Jones, Solomon (Doctor), 360, 413, 417,
440, 446, 448.
Jones, William, 267, 274.
Jordan, James, 362, 363, 366, 370.
Judah, Samuel, 43, 53, 56, 57, 65, 70.
Judges, appointment ol, 6; of assize, 8, 11.
Judicature, Inferior and Superior Court
of, 9.
Judicial Committee of Peace Commission.
12.
Jurisdiction of Court, Summary ot Crim
inal Courts, 5, 7, 98.
Jurors, persons qualified to act as, 16;
subjects in Province ot Quebec in
tituled to be impanelled, 13.
Justices of the Court ot Common Pleas,
appointment of Commission signed
by Lord Dorchester, 353, 354; Eastern
Dist., 388; different Districts, 429.
Justices of the Peace, 6-9, 11-13, 15, 17, 21.
Jury, Grand, 12; Petty, 12; Trial by, 7, 10,
11, 16.
Kay, William, 378, 384, 392, 393, 403.
Kay, Mrs. William, 378.
Keefer, Francis, 208.

Keller, Frederick, 237.
Keller, William, 237.
Kellin, Luke, lOO.
Kelly, Pat'k, 337, 343.
Kemp, James, 3, 18, 330.
Kerr, — , 347.
Kerr, Rob't, 298. 346-348.
Key, William, 371.
Killan, Luke, 98, 101.
Killing. Luke, 141, 143.
Kilmire, Nicholas, 362.
Kilmore, Nicholas, 361, 412.
King and Council, 15; in Council, 11-12.
King's Bench, Act, 452, 453; Court of, 6-
15, 17, 21, 279.
Kings C^ourts, 7.
Kingsford's History ot Canada, 22.
Kingston, 4, 142, 233, 234, 236-238, 240-242,
245, 246, 248-250, 252, 255, 260, 263.
26.6'-268, 275, 277, 280, 281, 284, 286,
287, 290, 294-299, 302, 303, 307-310, 349,
452; Court of Common Pleas held at,
190, 232, 258, 285, 313, 341; Township
of, 260, 291, 303, 309.
Kinlaid, John, 348. *
Knap, — , 109.
Knap, Benjamin, 102, 109, 110.
Knap, Ephraim, 274.
Knapp, Joseph, 419, 424, 445, 460.
Knight, Halon, 199.
Knight, Malh'n, 230, 252, 271.
Knowlton, Thomas, 372, 373.
Koskaskia, 4; River, 4.
Kotte, Lewis, 215, 222, 223, 226.
Kotte, Mr., 218.
Krysler, (Crisler, Crysler) John, 401, 406,
424, 426.
Krysler, Philip, 401, 403, 406.
Kusenburg, Henry, 313.
Labaddy, Antoine, 173.
Labaddy, B'te, 173.
LaBreche, dit Bourdon, 78, 80.
Labadie, J. B., dit Belleschamp, 112.
Labaldi, Alexis, 117.
LaBattre, Jean Marie, 70.
Labedie, Alexis, 128.
Laherdy, J. B'te, 143.
Labrador, 1.
LaBreche, Paul Dugas, dit, 86-88.
LaBrosse, Dominique, 27, 35, 43, 45.
Labute, Alexis. 159, 161.
Labute, George, 161.
Labute, Jacob, 161.
LaBute, Pierre, 27, 30, 33, 35, 36, 45, 59.
78, 175.
Lacelle, B'te, 85.
Laduc, J. B'te, fils, 26, 32, 36, 43, 54.
" Lady Dorchester." the. 197.
Laflure, Charles Boupard, dit, 121.
Laflambois, J. B'te, 36.
Laforest, Alexis, 137.
LaPorest, Guillaume, 77, 137.
Laforest, Madame, 113.
Laforest, Prosper, 137.
Latoy, Augustin, 182.
Lafleche, Augustain, 375.
Lahigh, William, 363, 364.
LaJeunesse, Francois Rivaux, dit, 112, 113.
Lajeunesse, Jean Louis, 134, 135.

470

INDEX

Lake, John, 382.
Lake, Nicholas, 312.
Lalonde, Francis, 180, 183.
Lamoindiers, Catherine Desriviere, 37, 47,
60, 65.
LaMoth, Guillaume, 171.
LaMothe, William, 37, 46, 178.
Land Board, 269; Clerk of, 314.
Land, Grants to Loyalists and Troops,
263, 268, 269; Titles to, 10.
Land Surveyor, 14.
Landen, Asa, 373, 440.
Landen, Heman, 367, 369.
Lang, Nicholas, 387, 388, 457.
Lansing, Mr., 267.
Lansing, Philip, 206, 207, 211, 264, 325.
Lansingh, Philip P., 327.
L'Arch, — , 1,65, 168, 170.
L'Arch, John Bte., 162.
Lary, Michael, 181.
Laselle, J. B'te, 87.
Lassalline, Hypolite, 53.
Lassell, Antoin, 25.
L'Assomption, 30, 44, 169, 179, 430; Court
of Common Pleas holden at, 23, 25, 37,
54, 72, 75, 77, 80, 85, 87, 88, 91, 94, 97,
100, 108, 112, 116, 126, 128, 133, 134,
135, 138-140, 142, 143, 147-149, 151, 153,
155, 157, 158, 160, 162, 163, 166-168,
170-175; Court of Oyer and Terminer
held at, 178, 180-182, 186, 189, 453;
Parish of, 26, 31-34, 37, 45, 68, 137, 154.
Latham, Jas., 219, 348.
Latour, Amable, 30.
Latour, Belar, dit, 92-94.
Latour, Ettienne, 75, 90, 95, 134.
Latour, Fran., 43-45, 54, S8, 67, 73, 74, 142,
145.
Latourelle, Hyacinth, 56, 70.
La Tranche River, 29, 30, 81, 106, 180.
Laughton, Peter, 130, 134.
Lavictoire, Pierre Sera, dit, 43.
Law, administered, 12; Canadian, 3, 5:
English, 1-3, 5-7, 9, 10, 12, 17, 21, 132,
137, 231, 432; French, 1, 9; Roman, 1,
2, 12, 150.
Lawson, Peter, 339.
Lawyer, Canadian Notary, Attorney, Bar
rister, etc., 14.
L'Bute, Julien, 173.
LeBute, Alexis, 163.
LeBute, George, 163.
LeBute, Jacob, 163.
Lee, William, 102, 108, 110.
Leeds, 295, 303.
Leehye, William, 445.
Legislative Assembly, 2, 3, 6; Council, 2
Legislature, of Upper Canada, Act of, 435;
Members ot, 435.
Leith, George, 47, 49, 96, 153, 179.
Leith and Sheppard, 26, 28-32, 39, 48, 49,
87.
L'Eutant, — , 92, 94, 98, 116, 133.
L'Enfant, Joseph, 90, 163.
Lennox County, 285, 286, 291, 296-298.
Lent, David, 308.
Leonardts, — , 361.
LePage, 177.
LePine, Fran., 144.

L'Btournan, Pierre, 189.
Leukes, Peter, 29, 38.
Leverrfi, Pierre, dit .Martin, 87.
Levingston, — , 437.
Levingston, John, 436, 447, 450.
L'Hyvernois, Julien, 142.
Lieutenant Governor, 3, 5, 15, 16.
Lilly, Charles, 325, 329-331.
Lines, Nath'l, 202, 230.
Link, John, 398.
Llnoard, Jos., Tramblay, dit, 85.
Lipps, John, 86, S8, 89, 135.
Lips, — , 94, 95, 97, 103,
Lips, Jean, 116.
Lips, John, 91, 92.
Liquor Laws, 22.
Little Lake, 216, 294, 297.
Lockwood, David, 301.
Loney, John, 378.
Long, Mr. John,- 360, 361, 362.
Long Sault (on the Ottawa), 16.
Lonsberry, William, 341.
Loon, Lawrence. 299, 301.
Losson, Peter, 338.
Lorimier, Francois, 362, 363, 3-66.
Lorimier, Verneuii, 436, 437, 447, 44S.
Lorimier, Verniel, 375, 376.
Lott, Johann, 338.
Lott, John, 292.
Loucks, Elizabeth, 379, 390.
Loucks, Hannah, 379.
Loucks, Jacob, 321.
Loucks, John, 382.
Loucks, Jos., 410, 415, 417.
Loucks, Pe'ter, 424, 426, 427.
Loucks, Rich'd, 382, 390, 424, 426, 460.
Loucks, William, 411, 421.
Lound, Mathew, 156.
Loup, — , 369, 370.
Louviomy, Montigny, 178.
Loveless, Ebenezer, 85, 141, 143.
Lower Canada, Division of Quebec into
Upper and Lower, 3, 5; Parliament ot,
3; United to Upper, 22.
Loyalists, compensation granted by the
British Government to, 409, 459; "Old
Subjects," 453; Waste lands of the
Crown to, 263, 269.
Loyd, Thomas, 234, 264.
Luneburg, Court ot Common Pleas held in
District of; 376, 382, 397, 452-455;
District of, 4, 245, 452; His Majesty's
Prerogative Court for, 390; Justices'
Commission, Court of Com. Pleas,
353, 354.
Lunenburg, District of, 4, 245.
Lunenburgh, District of, 4.
Lynd, David, 180.
Lynd, John, 227.
Lyons, — , 94, 98, 116..
Lyons, Geo., 75-80, 82, 84, 85, 87-89, 92, 96,
99, 112, 113, 115, 116, 133.
Lyons, Mr., 107, 119, 120, 121, 127.
Lyons, Natn'l, 213.
Mabery, John, 342.
Maby, Abraham, 217.
Macachrin, Donald, 359.
MacArthur, Daniel, 397.

INDEX

471

MacAuley, Robert, 196, 201, 214, 215, 219.
233, 241, 245-247, 255, 267, 268, 270,
271, 273, 276, 280, 281, 283, 284, 286,
288, 306.
MacBean, John, 349.
MacDonell, Angus, 438, 439.
MacDonell, Catherine, 439.
MacDonell, John, 435, 442.
Macdonell, Wm., 225.
MacFall, David, 421.
MacGrigor, Robert, 431, 433.
Maellmoyle, Hugh, 445, 449.
MacKay, William, 222, 223, 226, 249, 259.
MacKenzie and Graham, 76.
liEBKenzie, C!ollin, 240.
.MacKinivan, Christy, 430, 432, 434, 441.
Mackworth, Lt. Robert, 205.
MacLeod, Roderick, 438, 439.
Macnaulty, John, 373-375.
MacNeil, John, 447.
Macolm, Isabella, 73.
Macomb, William, 147, 153, 156, 157.
McArther, Duncan, 358.
McArther, Peter, 357, 358.
McAulay, Robert, 197, 287.
McAuley and Markland, 206, 207, 209, 210,
214, 216, 218-221, 224, 232, 244, 257,
252, 255, 257-259, 267, 268, 273, 275,
285, 287, 288, 290, 299, 304, 347.
McBain, Giles, 378.
McBean, Giles, 378.
McBean, John, 300.
McCaffery, John, 403.
McCarty, Bdward, 140, 152.
McCaslan and Heward, See Heward and
McCaslan. |
McCaslan, John, 105.
McCawley and Markland, 203.
McCawley, Robert, 290-292, 294, 309.
McClean, John, 112.
McClure, George, 36.
McComb, Mr., 101, 102.
McComb, Wm., 128.
McCormick, A., 80.
McCormick, Arthur, 81, 87, 89, 92, 97, 111,
113, 115, 128, 138, 302, 304, 306, 309.
McCormick, Charles, 46, 60, 69, 74.
McCormick, Mr., 114, 115, 119-121.
McCrae, Thomas, 106, 144, 146.
McCrea, Thomas, 66, 67, 72, 140, 141.
McCredy, — , 437.
McCredy, John, 411, 429, 430 4?2, IC-l.
McCrimmon, Donald, 299, 301.
McDonald, Donald, 249.
McDonald, J., 404.
McDonald, Ronald, 85.
McDonell, — , 304.
McDonell, Alex'r, 246, 264, 295, 300, 301.
303, 329, 353, 354, 355, 358, 359, 364,
365, 367, 370-373, 375, 376, 415, 417,
422, 428.
McDonell, Arch'd, 227, 289.
McDonell, Arch'd (Major), 385, 410.
McDonell, Donald, 213, 245;"254, 2T17 283,
299, 302.
McDonell, Donell, 247, 259, 263, 264, 265,
292.
McDonell, Duncan, 390.

McDonell, Farquhar, 404, 406, 408, 409,
414 420 458.
McDonell, Hugh (Capt.), 410.
McDonell, James, 67, 121, 126, 142, 144,
175, 178.
McDoneU, J., 397, 405, 427, 435, 445, 451.
McDoneU, John, 356, 357, 379, 381, 384,
386, 388, 390, 397, 410, 428, 451, 452,
460.
McDonell, John (Capt.), 410.
McDonell, Kenneth, 355, 356, 358.
McDonell, Miles, 384, 410
McDonell, Mr., 89, 90, 302.
McDonell, Ranald, 362.
McDoneU, Ranald, (Capt.), 86, 88, 89,
356, 385, 410.
McDonnel, R., 91.
McDougall, — , 107, 112, 127.
McDougaU, Geo., 75, 76, 78, 96, 97, 99,
158-161, 173-175, 177, 178, 180.
McDougall, John, 299, 301.
McDougall, John Robert, 25, 28, 34, 41.
McDougall, Robert, 186, 187.
McFariand, Thos., 202.
Mcfarlane, — , 310.
McFarlane, Peter, 307.
McGill, John, 390.
McGilvray, Catherine, 355, 356.
McGinn, George, 232, 235, 241, 244, 251,
252, 255.
McGraw, Owen, 272. ,
McGregor, Donald, 357, 378.
McGregor, Gregor, 115, 175, 452, 453.
McGregor, John, 48. 49, 64, 71, 155, 158,
159, 164, 165 175.
McGregor Mr., 394.
McGregor, Robert, 405, 408-410, 415, 418,
428, 430, 43L
McGrigor, Robert, 378, 379, 385, 408, 418,
459.
McGruer, John, 397.
McGuire, Patrick, 403.
Mclnaltie, John, 361, 362.
Mclnaulty, John, 330.
Mclntire, John, 106, 397.
Mcintosh, Angus, 72, 157, 159, 162, 165,
168, 175, 176, 179.
Mcintosh, Daniel, 389.
Mcintosh, Donald, 349.
Mcintosh, James, 91, 116. 121.
Mcintosh, Mrs. Jean, 405.
Mcintosh, Mr., 129.
Mclntyre, Charles, (Serg't). 181.
Mclntyre. John, 269.
McKay, — , 100, 109, 110.
McKay, Mr., 101, 102 337.
McKay, Norman, 102.
¦McKay, Wm., 249, 263-265, 270.
McKee, Alexander, 46, 60, 69, 74, 179, 452.
McKenny, — , 306, 309.
McKenny, Amos, 405.
McKenny, John, 302.
McKenzie, Alexander, 93, 250, 255, 284,
285, 291.
McKenzie, Collin, 243.
McKenzie, John, 385.
McKenzie, John, (Capt.) 410.
McKillip and Jacobs, 26, 35, 40, 49, 62,
63.
McKiUip, D., 90, 93.

472

INDEX

McKUlip, Daniel,, 75,. 92, 94, 95.
McKindley, William, 293.
McKinivan, Christy, 414, 421 430.
McKinivan, John, 414, 421, 459.
McLean, — , 312. r
McLean, Allan, 215, 224, 229-231.
McLean, Donald, 428.
McLean, Hector, 232, 235, 236, 247, 252,
260, 266, 273, 275, 278, 285, 289, 291
293, 302, 306, 307, 312, 337, 340, 350,
353, 452.
McLean, Neil, 190, 193, 196, 200, 202-206,
211, 215, 224, 232, 235, 236, 246, 247,
252, 258, 260, 262, 275, 278, 281, 285,
290, 291, 293, 302, 306, 307, 310-312,
314-317, 320-329, 331, 333, 334, 337-
339, 341-353, 452.
McLean, NeU, (Capt.), 385, 410.
McLean, NeU, (Lieut), 356, 357, 358,
McLean, Stephen, 308.
McLeod, Donald, 355, 358.
McLeod, John, 332.
McMahan, John, 253.
ilcMann, John, 213.
McMartin, Malcolm, 427.
McMichel, John, 315.
McMullan, Daniel, 246, 267, 270, 302, 304,
306, 309, 312, 321, 322, 330, 347, 349.
McNairn, John, 410.
McNairne, John, 371.
McNeil, John, 412.
McNiff, Mr., 80-82.
McNiff, Patrick, 78, 80, 82, 86, 87, 96, 98,
107, 111, 114, 117, 118, 127, 128, 133,
134, 136, 138, 148, 149 151.
McNish, Joseph, 363.
MePherson, — , 306, 309.
MePherson, James 385.
MePherson, John, 42.
MePherson, Murdoch, 389.
MePherson, Peter, 299, 302.
McQuinn, Daniel, 225-227, 230, 317, 319.
McTagart, Jas, 318.
McTavish, Frobisher and Co., 385, 387,
455.
McVay, William, 215.
Magic, 8.
Magin, George, 254, 255.
Magna Charta, 7.
^fain, James, 422.
MainviUe. Jos., dit Duchene, 170, 172.
Maisonville, Alexis, 52. 139, 155, 179.
Maitand, Aldgo and, see Aldgo and Mait
land.
Malcolm, Elizabeth, 60.
Malet, Joseph, 68.
Mallery, Enoch, 372, 374, 375.
Mallett, Joseph, 53, 56.
Maloche, Bpte, 179.
Man. .lohn- 411, 413, 418, 429, 432, 435,
442, 460.
Mansfield, Lord, 280.
Marantate, Madame, 180.
Mariner, Barret, 299.
Markely, John, 410. ,
Markland, Messrs. McAuley and, see Mc
Auley and
Markland, Thomas, 213, 214, 219, 224-227,
230, 233, 239, 241, 244, 245. 252, 254.
258, 267, 268, 270, 271, 273-276, 280,

281, 283-287, 291, 292, 294, 297, 299,
306. 309, 350.
Markle, Henry, 382.
Markle, Jacob, 382.
Markle, John, 377.
Markley, Frederick, 380, 455.
Markley, John, 380.
Marquilliers, Antoine Meloche, 140.
Marquilliers, Jean Tournu, dit Meloche,
140.
Marrentet, Laurent, 173.
Marriott, Mr. Advocate General, 18.
Marsack, — , 98.
Marsack, Benj., 96.
Marsack, J. B'te, 135.
Marsh, Abraham, 381, 410, 456.
Martin, John, 26, 28, 32, 40, 45, 57-59,
130, 175, 318, 319.
Martin, Pierre Levere, dit, 87.
Martin, William, 373.
Marysburgh, 232, 233, 250, 264, 271, 287,
289, 292, 294, 295, 297, 299, 300, 342.
Mass, Publication ol Ordinance at Grand,
99.
Mathews, Thomas Elms, 312.
Matilda, 391.
Mauer, Laurent, 44, 55.
May, James, 29, 34, 38, 39, 41, 76, 78, 83,
84, 86, 91, 97, 99, 108, 116, 128, 147,
149, 150, 151, 153, 165 178.
Mcgilvray, Katherine, 355.
Mecklenburg District, 4, 5, 15, 452, 453,
458: Court ot Common Pleas held,
258, 285, 341, 452, 458; Now Midland,
289; Deputy Surveyor ot (Alex. Ait
kin), 268, 269.
Mecun, David, 370.
Meldrum and Park, 27, 30-34, 40, 49, 51,
60, 92-95, 97, 98, 100, 102, 105 111,
113, 117, 122, 126, 127, 130, 131 133,
135-137, 156, 158, 160, 163, 165, 166,
168-171, 173, 177.
Meldrum, George, 66, 67, 73, 156.
Meldrum, Mr., 101, 123.
Meloche, Etienne, 140.
Meloche, Francois, 173.
Meloche, Louis, 122.
Menard, Francois, dit Montour, 87.
Merick, Stephen, 408, 412, 415.
Merkle, Henry, 414, 415. 417, 420-422.
Meckle, Jacob, 414, 420, 421.
Merkle, John, 417, 420-422.
Merrell, Samuel, 283.
Merrick, Ephraim, 387.
Merrick, Stephen, 388, 391.
Merrick, William, 387. 388, 391.
Meseres. Francis, Attornev General, 17,
20.
Mettiz, Pillix, 182-184.
Miamis Company; 25.
]Michaelmas Term, 13.
Michigan, 3; British occupation of, 22.
MichUimacinac,, 4, 21, 179, 181; Court of
Common Pleas established at Po=ts.
430; Lost to Britain, 4. (See also
MlssUimakinac).
Middleton, Robert, 300.
Midland District, 5, 285, 286 289 291
293, 296, 297, 299.
Mieur, William, 349-351.

INDEX

473

Militia, Captains, of 14; Enrollment in,
356.
Miller, — , 305.
Miller, John, 84, 142, 144.
Miller, Justis, 283.
Miller, Stephen, 377, 378, 392, 393, 401,
402, 406, 407 454, 457.
MUlross, Andrew, 392, 393, 402, 410.
MUlwrights of Augusta, 366, 370.
Mirick, Stephen, 405.
Missilimakinax;, 4.
Mississippi, 4.
Mitchei, George, 430.
Mominier, — . 172.
Monforton, — , 99, 108, 112, 116, 121, 126,
127.
Monforton, WUliam, 58, 65, 66, 68, 73, 141,
143, 144, 147-149, 151, 153, 155, 452.
Monroe, John, Sheriff of Luneburg, 452.
Montgomery, 14.
Montigny, Mr. 97.
Montour, Francis Menard, dit, 87.
Montreal, -4, 6, 26, 28, 32, 38, 39, 45, 58,
232, 261, 390, 394, 395, 409, 450;
Court of Assize at, 8-11; Court of
Comon Pleas at, 13, 15, 371, 385, 386,
456, 458; Court ol King's Bench at
14; (3ourit of Quarter Sessions at, 11;
Courts at, 452; District of, 4, 6, 263,
354.
Moon, WiUiam, 292.
Moor Wolvend and Hovenden, 206, 209,
216, 224, 232.,
Morden, James, 312.
Morden, Richard, 312.
Morgan, William, 410.
Morin, Jean Baptiste, 76.
Morin, Pierre, 183.
Morran, Charles, 178.
Morris, — , 305.
Mort d'ancestor, 10.
Morton, Alexander, 297.
Mosher, Hezekiah, 405, 409, 417.
Mosher, Nicholas, 424, 426, 427, 437, 446,
447, 450.
Mosier, John, 200, 248.
Moss, Samuel, 410.
Mosure, John, 252, 256, 260, 285.
Most, John, 201.
Motts, Reuben, 435.
Mouton, Francois, 173.
Muir, — , 333.
Muir, WiUiam, 326.
Munger, WUliam, 141, 142.
-Munro, Cornelius (Sheriff Eastern Dis
trict), 388.
Munro, Hugh, 379, 438, 441, 445, 455.
Munro, John, 388, 390, 391, 397, 405, 409,
410, 427, 428, 435, 441, 442, 451, 452,
457.,
Murders and capital felonies, 8; Trial
for, 179, 180.
Murray, General James, 5.
Murray, Governor, 13.
Murray, Royal Instructions to, 6.
Murry, Mr., 219.
Nadeau, Lewis, 392, 398, 403, 457.
Nassau, Court of Comon Pleas, 452 Dis
trict of, 4, 5, 15, 452, 453.

Naval Department, 66.
Wavarre, — , 78.
Navarre, Robert, 118.
Navigation, fees of Superintendent of In
land, 265.
Navy Island, 192.
Neadoe, Lewis, 382.
NevUlin, Ernest, 299, 302.
New Brunswick, 22.
New Johnstown, 372; Court ot Common
Pleas held at, 364, 367, 370.
New South Wales, Attorney General ot,
22.
New Subjects, 2, 430.
New York, 57, 65, 357; Late Province of,
68.
Newark, 3, 4; Court of Common Pleas
held at, 429.
Niagara, 270, 401, 458; Fort, 22; Held by
British, 22; on-the-lake, 3.
Nippissim River, 1.
Nisi Prius, 10, 11; Law of, 279.
Notary, 14.
Notary Public, 65.
Nova Scotia, 22.
Ogdensburg, 16.
Old Subjects, 2, 430.
Ontario, 4; Bureau of Archives, 22;
Province of, 1, 3.
Orser, Arthur, 199.
Orser, Gilbert, 315.
Orser, Mary, 272, 305.
Orser, Solomon, 358, 360, 361, 363, 365,
367, 382 387, 429, 437.
Osnabruck, 358, 361, 363, 365, 367, 382,
387, 437; Court ot Comonm Pleas
held at 379, 381, 383, 385, 386, 388,
390, 405, 411, 452.
Oswegatche, 16.
Oswegatchie, Agent tor Indians at, 425;
held by Britain, 22.
Oswego, held by Britain, 22.
Ottawa, Long Sault on the, 16; River, 4.
Ouillet, — , 177.
OuUlette, Charles, 335.
Oxford, Court of King's Bench held at,
7; King vs. the Inhabitants ot, 22.
Palmer, David, 293, 312, 342.
Pardee, — , 94,
Parent, Laurant, 189.
Paris, Costume de, 1, 152; Treaty ot, 1,
4, 6, 12.
Park, Meldrum and, see Meldrum and
' Park
Park, Mr., 101, 109-111, 123-125.
Park, Wm., 30, 60, 67, 73, 105, 128, 130,
179.
Parliament, composed of Governor and
Council, 6; ot Upper Canada, 13th
and last, 22.
Parliament, Isaac. 293, 312.
Parlow, John, 442.
Parnler, Joseph, 49.
Parre, J. B., 142, 146.
Parrent. Laurent, 173, 179.
Parrot, James, 289, 292.
Parry, J. B'te. 53.
Patents, Books ot, 354, 355.

¦474

INDEX

Paterson, — , 460.
Paterson, AUan, 350, 289-392, 417, 427,
,428, 430.
Patterson, William, 146.
Pattinson, Richard, 175.
Pattison, Daniel, 372, 373-375.
Pawling, Benjamin, 452.
Pawling, Jesse, (Coroner District ol Nas
sau), 452.
Pawling, William, 35.
Peescod, (Pescod) John, 371.
Peltier, Andre, 139, 189.
Peltier, Jacques, 44, 55.
Peltier, Magdelalne, 44.
Pember,  . 313.
Pember, Philip, 199, 278, 307, 310.
Penal Statutes, action under new, 97;
Advertising new, 98.
Pendle, Robert, 222.
Penout, Joseph, 6S.
Pernier, Jos., 31, 40, 60-62, 144, 151.
Perry, Edward, 430.
Perry, Robert, 300, 302.
Perry, WUliam, 300, 301.
Perthuir, Francois, 65, 66.
Pescod, (Peescod) John, 378, 389, 410.
Peters,  , 460.
Peters, Bemslee, 307.
Peters, John, 301.
Peterson, Conradt, 359, 365, 368.
Petters, Thomas. 412, 423.
Petit, Nathaniel, 452.
Petit Sessions, 9.
Petite Cote, 61.
Petites Ecorse, 103.
Petre, Jean -Baptiste, 55, 66, 73, 107.
Petty Sessions, 9.
Peterson, Christian, 312.
Peterson, Nicholas, 312.
Pevry, Robert, 299.
Phillips, Chandler, 369, 370.
Phillips, Eiisha, 324.
Phillips, Michael, 299.
Phillips, Mr. 361.
Phillips, Zeba, 367, 389.
Pike, John, 29.
Pilet, Jos., 30.
Filler, Margaret, 380, 455.
]Bllet, Joseph, 173.
Pilon, Ralph, 186, 187.
Piper, Fred'k, 313.
Pittsburgh, 250, 282.
Plague, Court removed on-account, 7.
Plat, John, 395, 458.
Plomondeau,  , 306.
Plomondeau, Pierre. 295, 303.
Point au Fer, held by Britain, 22.
Poisonings, 8.
Police regulations, 98.
Pollard, Richard, 55, 69.
Poor, laws respecting, 3, 11.
Porter, Timothy, 292.
Potash boiler, 415.
Poter, William, 403.
Potior, John, 412.
Pottiar,  . 437.
Pottiar, John. 435, 448-450.
Pouget, Joseph, 103, 157.
Poupard, Chas., 126.

Poupard, Cha's, dit Lafleur, 121.
Powell, Mr., 371.
Powell, William Dummer, First Judge of
Court of Common Pleas District ot
Hesse, 25, 26, 29, 37, 43, 54, 65, 72,
77, 80, 85, 87, 88, -91-94, 97, 100, 108,
112, 116, 121, 127, 128, 133, 134, 136-
143, 147-149, 151, 156-160, 162-175,
178, 180-182, 186, 189, 453.
Powers, Edward, 298, 301.
Pownall, Geo. 354, 355.
Prerorgative Court, 460, for District ol
Luneburg, 390.
Pressley, John, 385.
Prevost, Antoine, 182-184.
Prindle, Tim'y, 250, 313, 335, 337, 343.
Pritchard,  , 312.
Pritchard, James, 199.
Pritchard, Joseph, 252, 274, 308, 315, 341.
Privy Council, 5, 12, 15, 22.
Proclamation, as to Canada Act, 5; as to
appointment of Judges for new dis
tricts, 452; Courts of Criminal Juris
diction, 5; Governments ol North
America, 1; Laws of England, 2, 5.
Proctors, 9, 10.
Protestant Religion, 13.
Protestants, 12,
Prout, Charles, 51, 52.
Prout, Pierre, 37.
Province, division of Lower Canada, 3;
Governor of, 269.
Purdy, David, 307.
Purdy, Jesse, 445, 447, 449, 450.
Purdy, Muajah, 252.
Putnam, Nathan. 378, 410.
Quarter Sessions ot the Peace, 6-14;
Appeal from, 12.
Quebec Act, 2-5, 14, 15, 18, 452.
Quebec, City ot, 355, Civil Government
at, 6; (i;ourt of Common Pleas held
at 11, 13, 15; Court held in 9, 10.
14; District, 4, 6, 452; Division into
Upper and Lower Canada, 3. 5;
Gazette, 452; Government of, 1, 3;
Late Province ot, 155, 156; Laws of,
founded on those of Rome, 150;
Ordinance, 12; Province of, 4, 5, 8,
25, 26, 37, 41-43, 45, 46, 50, 54, 56-58.
59, 62, 65, 69, 70, 72, 73, 75, 77, 80,
85, 87, 88, 91-04, 97, 100, 108, 112.
116, 121, 126, 128, 132-134, 136, 138-
140, 232, 262, 268, 354, 355, 376, 452;
Quarter Sessions, 11, Town ot, 6.
Queen's Bench, Court of, 22.
Quigley, John, 327.
Quin, John. 405, 408, 409, 459.
Quin, Michael, 405, 408, 409, 459.
Quinty, Bay ot, 360.
Raeet, Francois, 107.
Raisin, River au, 396, 397, 458
Rasin, River, 90. 129.
Ralston, John, 368.
Ramsay, Judith, 98. 101, 102
Ransler, William, 309.
Rany, Frederick, 424, 426
Rattan, Peter, 312.

INDEX

475

Reaford and Sheriff, 314.

Ross, David, 226, 228, 229, 307.

Reaford, Thomas. 314.

Ross, Jacob, 371, 426.

Reaume, Pierre, dit Thimus, 139.
Ross, Hugh, 389. 392, 398, 403, 405,
406,
Rebel, trial tor sedition, 355.
408, 415.
Reed, Samuel, 292, 293.
Ross, Mr., 226-231.
Registers Office ot Enrollment, 354,
355.
Ross, Walter, 293.
Reid, John, 312.
Roucout, J., 80, 136.
Eeitenstein, Gotlieb Christian, (Baron
Roucout, J, B'te., 76, 77, 79.
de,) 232.
Roui, Evan, 403.
Reitrenstein, Baron de, 250.
Roy, Louis, 180-182, 185.
Reitrenstein, Gotlip C, (Baron de).
234.
Royal Yorkers, 250.
Reossell, J. B'te, 85, 88.
Royce, Evan, 410.
Revaux, Francois, dit La Jeunesse,
112,
Ruland, Anne. 168.
113.
Ruland, Israel, 162, 168.
Revolution, American, 2.
Runion, Henry, 378.
Revoux, Joseph, 116.
Russell, J. B'te, 87.
Reynolds, Thomas, 147.
Russell, James, 252, 271, 292.
Rheaum, — , 171.
Ruttan, George, 300, 302.
Rheaum, Claud, 36, 182.
Rheaum, Jean, B'te, 36, 43, 65, 72,
163,
Saguinau, 29, 47, 49, 50, 64, 67, 71.
. 177.
St. Abean, Charles, 43, 57.
Richard, John, 236, 243.
St. Anne, 178, 179, 182, 186.
Richard, Owen, 236, 243.
St. Anne, Parish ot, 27, 29, 30, 33
45,
Richardson, James, 190, 192, 213,
245,
55, 65-67, 70, 73, 86, S9, 137, 189.
252, 274, 275, 283.
St. Bernard, Guillaume, 77, 80, 135,
136.
Richardson, Thomas 293, 343.
St. Bernard, Joseph, 80.
Rickley, Andrew, 292, 347.
St. Clair River, 130, 131. (Also Sinclair
Riddell Canadian Library, 22.
p. 106.)
Riddiboch, John, 445.
St. Come, Amable, 186.
»
Rikely, Andrew, 312.
St. John, Lake, 1, River 1.
Rikeman, Edward, 312.
St. Lawrence, Gulf, 1; Lower, 16; River,
Robertson, David, 14'0-142, 145, 146,
149,
1.
152, 178.
St Lewis, Castle of, 354, 355.
Robertson, William, 27, 67, 140-142,
145,
St. Maurice River, 4, 6.
146, 149, 152, 411, 414, 419, 452.
St. Obien Louis, 127.
Robideaux, Ettienne, 90.
St. Vincennes, 4, 430.
Robins, James. 199, 200, 213, 215,
218,
Salut, Claud, 40.
230, 245, 253, 256, 270. 271, 274,
292,
Sancrainte, J. B'te., 144, 152-154,
156,
293, 317, 344.
161.
Robinson, David, 410.
Sandusky, 25, 31.
Robinson, Joseph, 412, 418, 419, 435
Sandwich, 453.
Robinson, William, 414.
Sauguina, 180, 182.
Roblson, WiUiam, 414, 420, 421.
Saw Mill, running gears for, 363.
Rocout, J., 125.
Scaife, the Queen vs.. 22.
Roe, Joseph, 142, 145.
Schenectady, 156.
Roe, Mr., 26, 28, 30, 31, 33, 39, 46, 49, 52,
Schieffelin and Askin, 144, 152, 154-156,
56-58, 65, 66, 76-79, 83-85, 87-98,
100,
161, 162, 164-167, 170, 172-176.
102, 108, 109, 111-113, 117, 120-122,
Schieffelin, Jonathan, 29, 37, 46, 47
, 50,
125-128, 131, 133-142, 144-148, 153
174,
51, 60, 64, 67, 70-72, 159, 162,
165-
177, 180, 181.
167, 170, 172-175, 178, 183, 184.
Roe, W., 184. 189, 190.
Schockensee, William, 349.
Roe, Walter, 25-34, 36, 37, 39-50, 55-58,
Scheley, Thomas, 293.
60, 62, 66-69, 72-74, 130, 134.
Schultz, Peter, 174, 281, 282.
Roman Catholics, 12, 13.
Schut, Alexander, 341.
CivU Law, 12.
Scotch names on Commission ot
the
Rome, Church_of, 12; Law of, 1, 2, 150.
Peace, 429.
Romer, Frederick, 212.
Scotland, 73.
Rorabach, 435.
Scott, John, 446.
Rorabach, John, 435.
Scott, William, 96, 98. 178, 438, 443,
445.
Rorbach, Catherine, 412, 418, 435.
450, 460.
Rorbach, John, 412, 418, 435.
Sealye, Justus, 391.
Rore, Mathias, 301.
Seaman, Calib, 415, 417.
Roshleau, Prans., 455.
Searl, William, 96, 98, 112, 140, 141.
^
Rose, Alexander, 391, 417, 421.
Sedition, trial for, 355.
Rose, Ezekiel, 422. /
Seelye, Joseph, 372-374.
Rose, Orry, 292.
Seelye, Justus, 397.
Rose, Samuel, 287, 292, 304.
Seelye, Pete, 413, 416, 417.
Rosiers, Cape, 1.
Seelye, Shubel, 369, 373, 375.
Ross, — , 310.
Segar, John, 298, 300.
476

INDEX

Seigneurie No. Two, 262.
Seley, Jard., 392.
Sely, Jared, 389.
Sely, Justus, 389.
Sera, Pierre, dit Lavictoire, 43.
Seven Islands Lower St. Lawrence, 16.
Shannon, Michael, 81.
Sharp, George, 87, 97, 169, 175, 179, 187,
189
Sharp, Gilbert, 213, 332.
Sharp, Guysbard, 287, 292, 345.
Sharp and Wallace, Messrs. 129.
SheU, John, 382, 414, 415, 420-422, 456.
Shepherd Leith and. See Leith and Shep
herd.
Shepherd, Thomas, 48, 49.
Shepherd, Wm., 175.
Sheriff, Reaford and, 314.
Sheriff, WiUiam, 326.
Sheriffs, appointment of, 6; for Eastern
District, 388; ot different Districts, 452.
Sherwood, Captain, 359.
Sherwood and Bennett, Messrs. 199, 393-
395, 458.
Sherwood, Justus, 364, 366, 373, 37^1, ?S7
389, 390, 397-399, 406, 407, 414, 418-
420, 425, 427, 438, 443, 446, 457, 458.
Sherwood, Samuel, 196, 204, 394.
Sherwood, Thomas, 373, 374, 389, 405,
408, 415, 447.
Shibly, John, 301.
Shipman, ¦ — , 460.
Shipman, Daniel, 373, 375, 425, 426, 436,
449.
Shipman, Samuel, 412, 419, 429, 443.
Shipping of officers stores in King's
Velless, 264, 265.
ShuUz, Peter, 209.
Sidney T'p., 204, 295, 301.
SiUick, Daily, 450.
SiUick, David, 449.
Sillimson, Nicholas, 430.
Simmons, Henery, 312.
Simon, Moses, 282, 346.
Simons, — , 261.
Simons, Moses, 277, 291.
Simons, Titus, 211-213, 215, 221, 224, 226-
230, 234, 238, 251, 253, 254, 258, 266,
273-275, 310, 311, 326, 332, 352.
Simpson, Alex'r, 195, 201, 240, 241, 287,
324, 328, 332, 335.
^ Simpson, James, 302.
Simpson. John, 312.
Simpson, William. 312.
Sinclair, River, 106. ^^i
Singleton, Geo., 203, 204.
Slander, as to action tor, 457
Smades, Joel, 446.
Smith, Conrad, 383.
Smith, Daniel. 437, 447, 448.
Smith, Henry. 298, 300, 302, 328, 345.
Smith, John, 43, 298, 301, 315, 316, 389,
403, 404, 407, 408, 430.
Smith, Major, 183.
Smith, Mr., 123-125, 129-131.
Smith, Peter, 202, 287, 288, 292, 298.
Smith, Richard, 387, 388.
Smith, T., 26. 28, 81, 85, 87, 90, 91, 103,
131, 137.

Smith, Terrance, 411, 413, 418, 429, 432,
435, 442, 460.
Smith, Thomas, Clerk of the Court of
Common Pleas and of the Peace,
District of Hesse, 452.
Smith, Thos., 26, 42, 43, 92, 93, 96, 97, 99,
108, 111, 112, 122, 126, 128, 129, 136,
452, 453.
Smyth, — . 90.
Smyth, C. H., 92.
Smyth, Ch's, 27, 29, 31, 32, 34, 37, 46,
49, 50, 55, 60, 63, 64, 67-74, 77, 91, 93,
94, 97, 108, 112, 116, 121, 125-128,
132-140, 142, 143, 147, 148, 160, 160,
161, 165-168, 170-172, 174-177, 453.
Snitsinger, Matthias, 3'71.
Snook, Marcus, 299, 302.
Snyder, Adam, 404.
Snyder, Conradt, 424, 426.
Snyder, Marcus, 308.
Snyder, Simon, 350.
.Snyder, Tobias, 299, 302.
Solaut, Claud, 63.
Solaut, Claude, 26, 62.
Solicitor General Weddeburn, 18.
Solo, Pierre, 169, 171, 172, 175.
Somes, Nathaniel, 321.
Soper, Leonard, 338, 339.
Sophiasburg, 236, 249, 255, 275, 298, 301.
Sorceries, 8.
SoreU, William, 182.
Sorrel, William, 179, 186.
Souligny, Charlotte, 172.
Sparham, John, 203.
Sparham, Mr., 225.
Sparham, Thomas, 302, 304, 332, 334, 348.
Special Sessions, 9.
Stageman, John, 382.
Spencer, Augustus, 294, 297.
Spencer, Barn's, 380, 455.
Spencer, Hazelton, 194 l99, 289, 291, 292,
350.
Spencer, Henry, 312.
Spencer, John, 293, 312.
Splcer, Ezekiel, 428, 440.
Stageman, John, 382.
Stanton, 300, 301.
Stata, Henry, 414, 415, 422.
Stata, Philip, 424.
States, going into the, 357, 359.
Statute ot Labourers, 8; of Limitations
323.
Stegeman, Capt. John, 410.
Sterling, James, 30.
Stevens, Robert, 164, 175.
Stevenson, John, 156.
Stewart, George, 410.
Stewart, John .Charles, 307.
Stinger, — , 460.
Stinger, John, 239, 260, 261.
Stinger, John Adam, 436, 449, 450.
Stone, — , 306.
Stone, Joel, 295, 303 436, 455
Stocks, — , 460.
Stooks. Edward, 428, 430.
Storing, John, 411, 419, 420, 421.
Stormont County 404; Court of Common
Pleas held at, 397, 405 411 452

INDEX

477

Straton, Thomas, 195, 198, 388, 389, 411,
416, 419, 422, 429, 432-434, 438, 439,
442, 469.
Stringer, John, 249.
Stuart, Rev. John, 452.
Stuken, Sampson, 292.
Su, David, 380.
Suittor, John, 36, 54.
Sumons, Service ot writ or, 16.
Superintendent ot Inland Navigation,
fees ol, 265.
Summers, Jacob, 384.
Surveyor General, 262; Deputy, 262, 269.
Swan, Thomas, 371 384, 410.
Sweet, — , 460.
Sweet Olver, 413, 416, 417, 441, 437, 446.
Swerdteger, Samuel, 419.
Sydney, Lord, 453.
Sydney, T'p, 238.
Symngton, John, 213.
Sypis, 350.
Taurongeau, Jean Baptiste, 44.
Tavernier, Julien, 142, 146.
Taylor, Agnes, 330, 332.
Taylor, John, 196, 197, 201.
Taylor, Michael, 302 319.
Taylor, William, 302.
TeUer, Garret, 104-107, 131, 132.
Thirteen Colonies, trouble growing in,
14.
Tenbrook, Peter, 429.
Terks, William, 211.
Thibault, Jos., 79, 135, 136.
Thomson, A. 290.
Thomson, Archibald, 213, 230, 231, 292,
314, 340.
Thomson, Mr., 235.
Thompson, Archibald, 245.
Thompson, George, 382.
Thompson, Samuel, 317, 348, 349.
Thorn, John, 312, 332, 334.
Thorn, William, 30, 38, 39, 48, 49, 86,
89, 153.
Thrasher, Zadock, 312.
Threes Rivers, Court ol Assizes at, 9,
10; District of, 4, 11.
Thurlow, 248, 266, 308.
Tibaut, Prosper, 155.
Tinbrook, Thomas, 330.
Toma, an Indian, 394.
Thompson, Paul, 343.
Toniata, 360, 362.
Tourangeau, Jean Baptiste, 58, 67, 73,
74.
Tournu, Jean, dit Jeannet Meloche Mar-
puilliers, 140.
Towns, Wm., 130.
Tramblay, Jos, dit Lionard, 85.
Tremblay, Pierre, 179.
Trespasses, 8, 10, 150.
Trinity Term, 6.
Trois-Riveres, 6.
Trompour, John, 248, 252, 255, 257, 333,
336.
Trompour, Zacharias, 318, 319.
Troops, lands granted to disbanded, 263.
Trudel, Louis, 43, 54.
Trumpour, Paul. 352.
Tucker, Wm., 75.
Tue, Gilbert, (Sheriff of Nassau), 429.

Tuot, Ignase, dit Duval, 141, 145.
Turner, James, 75, 151.
Union Act, 22. i
United Empire Loyalists, Compensation
granted by the British Government
to, 409, 459; Old Subjects, 453;
Waste lands of the Crown to, 263,
269.
United States, Argree to pay claims, 22;
Boundary, 1; Revolted colonies now,
454; Schenectady in, 156, Territory
awarded to, 4.
Upper Canada, Act of the Legislature,
458; Division of Quebec into Lower
and, 3, 5; Members of Legislature,
458; Parliament of, 3; Province of, 1,
5, 140, 142, 155-160, 162, 163, 165-168,
170-175, 178, 180, 181, 186, 388, 405,
410, 427, 433; Statutes of, 156;
Union of Lower and, 22.
Urquard, James, 159.
Urquhart, James, 58, 59. 155, 158, 179,
189
Urquhart, John, 32, 40, 49, 63, 64.
Urquhart, Mr., 103.
Utrecht, Treaty of, 5.
Va-dboncoeur, Joseph Pernier, dit, 31, 40,
49. 60-62, 151. '
Valcour, Francois, 89.
Vanalstine, Peter, 190-192, 350, 352.
Vanamuker, Peter, 301.
VanCoughnett, Michael. 384.
Vanderbogart, Francis, 307.
Vanderbogart, Susannah, 191.
Vandican, John, 306, 324, 328.
Vandican, Rudolph. 324, -328.
Vanduzen, Jacob, 371.
Vanduser, — , 303.
Vanduser, Conrad, 293, 298, 301, 304,
312 313.
Vanduser, Conrood, 233, 236, 238, 243.
Vanskiver, Peter, 255, 257.
VanSkiver, Peter, 248.
Vassals, Nicholas, 312.
Vert, John, 78.
Vessels, shipping offlcers stores in the
King's, 264.
Vesslnau, 108, 112.
Vesslnau, Louis, 99, 116.
Visgar, — , 93-95, 98, 113, 117.
Visgar, Jacob, 103, 131.
Visgar, John, 29, 50, 51, 64, 67, 103.
Visgar, Joseph, 178.
Viele, Chirk, 248.
Vincennes, 4.
Vogely, John, 287, 292, 304, 334.
Vogley, Mary, 292.
Wabash, 4.
Wager, Jacob, 382.
Waggoner, Jacob, 442.
Walker, — , 313.
Walker, Edward, 307, 310.
Walker, J., 387.
Walker, James, 381-383, 455, 456.
Walker, Mr., 228-231, 386-388.
Walker, Thomas, 227, 379-385, 387, 455,
456. ' !

INDEX

Walker, Weiden, 299, 302.
Wallace, Messrs. Sharp and, 129.
Walter, Martin, 404, 406, 408, 409, 458.
Walter, Philip, 382, 414, 417, 421.
Ward, Ashel, 360.
Warffe, Richard, 378, 384, 403, 410.
Wartman, John, 201, 283.
Wartman, Peter, 200, 235, 317, 319.
Washburn, Ebenezer, 237, 239, 240, 242,
244 252, 283, 286, 289, 291, 296, 297,
318, 332
Wa'tson, — , 460.
Watson, Major, 412, 423, 437, 449.
Wawanisse, (an Indian), 389, 423
Weager, Jacob, 414, 415, 420, 421.
Weatherhead, Lana, 367, 369.
Weaver, Frederick, 404, 414, 420-422
Wedderburn, Solicitor General, 18
Weights and measures, abuse ot, 8,
Welch, Jno., 99, 182, 186.
Welch, Thomas, 96.
Wesley, Joseph, 236 243 247 255.
West, John, 212.
Western District, 5; Court of Common
Pleas held in, 155-160, 162, 163, 165-
168, 170-175.
Westminster, Court ot King's Bench at,
7, 10; Statute of, 10.
Wever, Frederick, 410.
Wheaton, John, 96, 99, 108.
White, Joseph, 412, 413, 419, 423, 429,
437, 441, 443, 447, 448.
Whitesele, Nicholas, 295, 299, 304.
Whitman, David, 283.
Whitney, John, 445, 450.
Wickwire, Jonathan, 359, 365.
Wilkinson, — , 14, 437.
Wilkinson and Beikie, 411, 429, 430,
433, 434, 460.
Wilkinson, Richard, 370-372, 384, 385,
390, 428, 431-433, 444.
Williams, David, 306.
Williams, Isaac, 31, 40, 74, 186.

Williams, James, 212.
Williams, John, 147, 149, 150.
WiUiams, Mr., 84.
Williams, Nathan, 78, 300, 302, 308.
Williams, Robert, 308.
Williams, Thomas and Co., 35, 36, 43
45, 54, 56, 65. ,
Williams, William, 306.
Wilsee, Benoni, 373.
WUson, Anlrew, 371, 378, 384, 403, .410,
433.
Wilson, James, 391, 424, 426, 427.
Wilson, John, 61, 410.
WUson, Samuel, 373, 445-447.
Wisconsin, British occupation ol, 22..
Wiseman, John Lockart, 232, 235.
Wood, Jonah, 430.
Wood, Jonas, 384, 410.
Wood, Thomas, 413.
Woodcock, Abraham, 320.
Woodcock, Peter, 320, 331.
Woolsey, Robert, 165.
Wrarkman, Tobias 293.
Wright, Assel, 378.
Wright, Daniel, 292, 345.
Wright, David, 362.
Wright, Ebenezer, 410.
Wright, Joseph, 293.
Wright, Robert, 312.
Writ, service of sumomns or, 16.
Wycot, Francis, 293. —
Yack, Mitchei, 53.
Yale, Law Journal, 22.
Yeates, Frederick, 274.
Yeomans, Elvia, 307.
Yerks, Isaac, 217, 218.
Yerks, William, 283.
Yorks, William, 220.
Young, — , 347.
Young, George, 252, 274.
Young, Henry, 301, 346.
Young, Jacob, 155.