Whether the Defendant supported his plea, and if not

2. Whether the damages were adjusted and ascertained in due form of law.

Both parties failed, and the consequence is, that the proceedings must go back on a reversal of the sentence for more ample and regular discussion.

The record does not furnish proof of the property alledged to be in the Defendant as the justification of the trespass charged. The papers filed by the Defendant as exhibits avail nothing because they want auxiliary evidence to constitute the proof of the points for which they are offered.

om

ADI gs

If the damages therefore are rightly adjudged, there was no ground for the appeal.

There is no weight in the objection made to the declaration as a double demand for taking and detaining the goods or cloaths as well as the wife. The law of the country, as it stands upon the ordinance of 1785, dispenses with formality in the declarations, and allows at the outset of a cause of the joinder of different demands. In the progress of it, the parties are to pursue, and the Court to instruct, what the law requires, for the legal decision of any point essential to the controversy.

Nor is there any foundation for the objection to the action, for not making the wife one of the parties Plaintiff, the Coutume de Paris excluding the husband’s right to sue alone without the wife’s consent, only in causes tending to an alienation of the rights of the wife ; and making it his duty to bring actions moveable and possessory, without her, for the preservation of her inheritance and propres ; the husband being the wife’s seigneur for her protection and benefit, and exposed by the neglect of it, to be adjudged unworthy of his trust, and of the right to cohabit with her, or in other words, giving to her, the right to sue for a separation.

But there was nevertheless great error in the sequel, and too gross a departure from the law in practice and principle, to justify a confirmation of the sentence pronounced.

The Common Pleas bench appear to have supposed what was impossible, that there was, and was not, before them an issue to be tried.

If there was none, the settlement of the damages was the province of the Judges, without a Jury—a jury trial obtaining only upon issue raised by the Provincial Ordinance of 1785, the adjustement of the damages therefore by an inquest was not maintainable ; even if the jurors should be taken for the Experts allowable by the French law ; for in such case, the proceedings of the Experts are open to the discussion,

attendant upon the homologation of the report ; but as this cause was managed, the Court of Appeals has no knowledge of what was in evidence to the Jury ; nor therefore can say, whether the sentence of confirmation stood upon good and pertinent proofs or not.

If it were possible to confirm the sentence, an issue must be found in the pleadings, but of that opinion, the Court below was not, by their over-ruling the first plea of the Defendant, and ordering him to plead de novo to the merits ;— taking his first defence for the exception declinatoire or dilatoire of the French law—most certainly it was neither, but a perfect bar of the action, if supported by proof relevant of the point that the Plaintiff had a wife, whose services and cloaths were the right and property of the Defendant. The Court should have decreed s0, by an interlocutory for a fair enquête, but did not. If decreed the reverse.

The bar and bench appear to have seen all in a cloud of error, thro’ the whole progress of the'cause ; which is consonant, neither to the French nor English Law, nor to that . patch work of jurisprudence, which it was the object of the ordinance of 1785 to introduce and establish.

No costs therefore can be given to either party in appeal and the decree of the Court must give the parties a better full and fair investigation, and be this,

The parties by their Counsel being fully heard ; it is by the consideration of this Court adjudged, that the sentence of the Common Pleas be reversed, without costs to either party and that the proceedings be remitted for such further course below as law and justice may require.”

En 1797, fut passé l’Acte Impérial, ch. 119, auquel il est fait allusion dans la requête de certains citoyens de Montréal, ‘présentée en l’année 1800, et ci-dessus rapportée. Il est intitulé. “ An act to repeal so much of an act, made in the fifth year of the Reign of His late Majesty King George the Second, intituled, an act for the more easy recovery of debt

A aie ab ES on 1 ssh aa tient

“said Thomas J. Sullivan has purchased the said Negro-

in His Majesty's Plantations and Colonies in America, as makes Negroes chatels for the payment of debts.”’ Le nouvel acte fut sanctionné le 19 Juillet 1797.

Après avoir rapporté la disposition ci-dessus citée de l’acte abrogé, il statue “ that so much of the said in part recited act, as relates to Negroes in His Majesty’s Plantations, is hereby repealed, and made void, and shall be of no effect in future ; any thing in the above act or any other act to the contrary thereof in any wise notwithstanding.”

Voici des notes sur une cause commencée en 1798. Jervis George Turner and Mary Blaney, his wife, duly separated from her said husband, Plaintiffs, vs

Thomas John Sullivan, Defendant.

Action intentée en 1798, sous No. 52, dans la Cour du Banc du Roi du District de Montréal, et jugée le 18 Décembre 1799.