URE

tobre 1872.

ut être plaidée, ptoire. (4 RL,

'endeur.

PEREMPTION.D'INSTANCE.

Cour SUPÉRIEURE, Montréal, 31 octobre 1872.

Présent : BERTHELOT, J.

RICHARDSON vs TABB.

Jugé : Que l’absence d’un avocat de la province ne constitue pas une cessation des fonctions de son associé, dont parle l’art. 202 C,. P. C. (1).

Que la partie qu’il représentait ne se trouve pas, par cette absence, avoir cessé d’être représentée, dans le sens de l’art. 455 C. P. C. (2).

Que, partant, la péremption d’instance court contre la partie dont l'avocat associé est absent, s’il n’a donné avis d’après l’art. 204 (3), qu’il a cessé d’occuper et si son associé est encore avocat dans la cause, (4 R; L., 388)

AFFAIRE COMMERGIALE.—PREUVE.—STATUT DES FRAUDES. Privy CounNcIL, 12th December 1848.

On appeal from the Court of Appeals for the district of Montreal, in Canada.

Present : Lord LANGDALE, Lord CAMPBELL, Mr. Baron PARKE and the Right Hon. T. Pemberton LEIGH.

Tomas McKay, appellant, and PETER RUTHERFORD, respondent.

By the Canadian Act 25th Geo. III, ch. 2, passed by the legislature of Lower Canada, for regulating proceedings in the courts of justice in Canada, it is enacted that, in proof of all facts concerning commercial matters, recourse should be had by the courts of civil jurisprudence in the provinces, to the rules of evidence laid down by the laws of England :

Held : That this colonial act revoked so much of the old french law, which formerly prevailel in Canada, and was laid down in the Ordonnance de Moulins, passed in the year 1566, and subsequently altered by the Ordonnance of 1667, whereby parol evidence was excluded from the proof of all contrats, or matters, exceeding the sum of 100 Livres, except in the case of accident, or where there was a commencement in writing; and that the english law, as to the admission of parol evidence in commercial matters, was substituted.

A contract entered into by persons in Canada with the government commissioner, to supply stone for making a canal, is a commercial matter, and is to be proved by the english law.

An agreement entered into by a contractor, to share in the profits of the undertaking, although the contract was not capable of being comprie within a year, is not such an agreement, as by the Statute of ‘rauds, 29th Car. II, c. 3, 8. 4, is required to be in writing, but muy be proved by parol evidence.

(1) Art. 261 C. P. C. de 1897, (2) Art. 280 C. P. C. de 1897.

(3) Art. 263 C. P. C. de 1897.

This was an appeal against a judgment of the Court of Appeals for the district of Montreal, in the colony of Canada, dated the 9th of march 1346, which affirmed à previous judgment of the Court of Queen's Bench for that district, of the 28th of january 1846, in an action, pro socio, brought on the 29th of september 1826, in the Court of King's Bench, at Montreal, by respondent, Peter Rutherford, against appellant, Thomas McKay, for an account 6f the profits of à partnership, between appellant and respondent, and another person, in respect of certain works executed by McKay, under two contracts between McKay and the commissioners of the Lachine canal, and for payinent to Rutherford of a third of such profits. The declaration in the action set forth, that, on the 15th of march 1821, by an instrument executed between appellant and respondent, of the one part, and Thomas Porteous, of the other part, after reciting that appellant and respondent had undertaken the con<truction of a certain public work of great magnitude, at Isle-aux-Noix, and that Porteous, in order to induce His Majesty’s government to entrust the execution of the work to appellant and respondent, had become their surety for its fultilment, and that it had been agreed that Porteous should have one third undivided share of the protits to arise from the undertaking, it was agreed, that appellant should, to the utmost of his power, unremittingly attend at Isle-aux-Noix to the conducting all the mason work and building required in the fultilment of the contract, and that respondent should exert himself, to the utmost of his power, towards procuring, on the

spot, all the materials necessary for carrying on the work:

and, in order that the same miglit be done with the least delay possible, and in the most workmanlike manner, they, appellant and respondent, should both, mutually and reciproca:ly, aid and assist each other in the management thereof, and they should reside at Isle-aux-Noix for that purpose. That Porteous should have the receipt and expenditure of all the money derived from the government for this object, and that after the execution of the contract, the profits arising from the same should be equally divided among the three parties, and that neither respondent nor appellant should undertake, under any pretext whatever, any other work than the one before mentioned, until the same should be finally completed. That on the 1st january 1822, the Lachine canal being then about to be constructed, appellant was desirous of contracting with the commissioners of that canal, to furnish the stones required for the canal, and to cut and prepare the material ; that appellant, respondent and one Henry Grifiin, then and there knowing that the contract would not be

grat perf offer mat sure indu shot proc into agre the « betw cana joint takir profi agree pond the v inten comn agree 'espo thing able t and r Noix.

Porte the d did P manc tract ween for tl therei as su recita the 2 sioner locks ficatio also by ap forma ed un and G

the Court colony of ffirmed «à h for that r'O SOC10, NS of utherford, nt of the espondent, cecuted by the comto Rutherthe action nstrument e one purt, iting that truction of -aux-Noix, y's govern- >ellant and Iment, and e one third adertaking, 1ost of his the conred in the aould exert ring, on the the work :' least delay hey, appeleciprocaily, f,and they bose. That ture of all his object, rofits arisg the three hnt should work than be finally hine canal desirous of to furnish prepare the dry Grifn, Id not be

granted except to such person as would give security for the performance thereof, did agree together, that appellant should offer to contract with the commissioners for providing the material and performing the work, and should offer as his surety, such person as Griffin should afterwards procure, and induce to become such surety ; and it was agreed that Griffin should become surety, or provide other sufficient surety for the fulfilment of the contract, and that Griffin should also procure Porteous to permit respondent and appellunt to enter into the agreement for the Lachine canal ; and it was further agreed, between appellant, respondent and Griffin, that after the contract and undertaking should have been entered into, between appellant and the commissioners of the Lachine canal, they, appellant and respondent, and Griffin, should be Jjointly concerned and interested in the contracts and under-takings of appellant with the commissioners, and divide the profits thereof, share and share alike ; and that it was further agreed, between appellant, respondent and Griffin, that respondent should give his attention to carry on and complete the works at Isle-aux-Noix, and that appellant should superintend and execute the contracts to be entered into with the commissioners of the Lachine canal ; and that it was further agreed that the rights, duties and obligations of appellant, respondent and Griffin, in this association, should, in all things, as nearly as circumstances would permit, be conforinable to the aforesaid agreement in ‘writing between appellant and respondent,and Porteous,respectiag the works'at Isle-aux- Noix. The declaration then averred that Griffin did cause Porteous to permit appellant and respondent to contract for the delivery and cutting of stone for the canal, and that he did procure James Leslie to become surety for the performance of such contracts. Then followed a recital of the contract executed before notaries, on the 21st january 1822, between appellant and the commissioners of the Lachine canal, for the delivery of a quantity of stones, at certain prices therein set forth, to which agreement Leslie became à party, as surety for the fulfilment thereof by appellant ; and x recitul of anotker contract, executed before public notaries, on the 26th of june 1822, between appellant and the commissioners of the Lachine canal, to cut the stone required for the locks of the canal, and deliver the same, according to specifications in the agreement set forth, to which contract Leslie also became a party, as surety for the performance thereof by appellant. The declaration, then, after alleging the performance, by respondent, of all things by him to be performed under the agreement between him, respondent, appellant and Griffin, averred the performance of the two contracts