RE ET

entered into with the commissioners of the Lachine canal, and that, in consequence thereof, appellant received £30,000, and stating a breuch of appellant to account for the profits of the undertaking, concluded in the usual form for an account. Appellant, by his plea, admitted the agreement of the 15th of march 1821, between respondent, appellant and Porteous, and alleged, that, on the 23rd of august 1826, by act made and executed before notaries, the respondent appellant and Porteous, did declare that, wherens they jointly had been concerned in certuin contracts or agreements made with His Majesty's government, for the performance, by them, of certain public works at Isle-aux-Noix, as appeared by the agreement of the 15th of march 1821, which public works had long since been completed. And that, whereas the parties, in order to settle all their accounts, and reckonings of every descriptions, touching the performance and completion of the publie works, and their respective interests therein, did, by act under seal, dated the Sth of july then last past, agree to meet and produce all their accounts and statements, touching and relating to the pursuance and fulfilment of all public works done by them, and on their account, at the Isle-aux- Noix aforesaid, for His Majesty, and of their business and joint concerns at Isle-aux-Noix, and thereunto settle and adjust the whole thereof amicably, under the provisions and conditions set forth and declared in the last mentioned act. And that, whereas they had frequently met, and, after exaumining all the accounts, &c., and all claims produced by them respectively, relating to the joint concern, they came to the final conclusion and arrangetvent set forth at the time, at the foot of the last mentioned agreement, whereby it appeared, that, after each party allowing his share of the loss sustained, appellant stood indebted to Porteous in the sum of £51, 16, 34d., and respondent stood indebted to Porteous in the sum of £737,8s, 11d., which sums were then paid, declared to be paid and discharged, and, in consideration of the premises, they, respondent and appellant, and Porteous, acquitted and released, and they did, then and there,in and by the act of the 23rd day of august, reciprocally acquit, release, exonerate and for ever discharge each other of and from every claim, pretension and demand which they ever had, for the works done and performed for His Majesty, at Isle-aux-Noix aforesaid, and, for and by reason of all and every matter, or thing, or transaction formerly had between them, at Isle-aux- Noix aforesaid. And appellant averred, that the agreement and discharge between the parties reciprocally made, was bar to respondent’s demand, in so far as the same was founded on the agreement of the 15th of march 1821, or any other

ag ph

l'es

ge ga tot l'es na ob] bu tan tOov the fav fav ove Lac for tha and wer ner" bet al 10 yea thei whi fort ent perf Acc and the l'esp L'OVE by ] the Can:

to r bein, and, conti Gri migl recel

ine canal, 1 £30,000, profits of n account.

he 15th of teous, and made and t and Porbeen conwith His em, of certhe agreeworks had parties, in s of every tion of the ein, did, by st, agree to ts, touching all public e Isle-auxusiness and , settle and visions and tioned act, after extmed by them ame to the time, at the it appeared, ss sustained, of £51, 168, in the sum clared to be ne premises, quitted and y the act of base, exonerfrom every had, for the le-aux-Noix y matter, Or | at Isle-auxe agreement ade, was bar as founded pr any other

agreement connected therewith, which might have taken place between the parties since that time, such as alleged by respondent in his declaration. Appellant also Seadeé the general issue. Respondent, by his replication, as to the allegations in the plea, insisted, that they were untrue, and unfounded in fact, and did not bar his action. To prove his case, respondent, after having put in the agreement of the 15th of march 1821, and the contracts of the 21st of janvary and the 26th of june 1822, tendered the evidence of Griffin, who was objected to by appellant’s counsel, on the ground of interest ; but Griffin, having stated that he had executed an acquittance, which finally settled his dealings and obligations towards appellant, by reason of their agreement respecting the contracts, and that respondent had executed, in his favour, à release, and he, Griffin, had executed a release in favour of respondent, the objection to his competency was overruled. Griffin proved that the commissioners of the Lachine canal, having advertised for tenders to furnish stone for the canal, respondent and appellant called on him to join them in the undertaking, and furnish the security required : that, after some conversation on the subject, he consented and procured Leslie to become the security : that tenders were, in consequence, made and accepted by the commissioners, and the contracts entered into. That this arrangement between respondent, appellant and himself, which took p'ace about the latter end of the year 1821, or beginning of the year 1822, comprehended all undertakings that might be thereafter entered into in the works of the Lachine canal, in which they might be jointly interested, and were to be performed on their joint account, upon terms similar to those entered into by respondent, appellant and Porteous, for the performance of the public works, at Isle-aux-Noix. That, according to the agreement between respondent, appellant and him, respondent was to superintend and manage, with the assistance of à foreman, the work undertaken by him, respondent and appellant, and Porteous, with His Majesty’s vovernment, at Isle-aux-Noix. That the consideration given by him for participating with respondent and appellant in the two contracts with the commissioners of the Lachine canal were — first, the procuring, from Porteous, his consent to respondent and appellant entering into the contracts, that being required by the agreement of the 15th of march 1821 ; and, secondly, obtaining security for the performance of the contracts with the commissioners of the Lachine canal, he, Griffin, being also held for an equal portion of any loss that might be sustained, and that the respective shares to be received or borne by him, respondent and appellant, were TOME XXIV 26

equal shares of profit and loss. In confirmation of this evidence, it was proved by Porteous, that, by the government contract, at Isle-aux-Noix, respondent and appellant were bound not to enter into any agreement, until the contract at Isle-aux-Noix was finished, and that, when the contract for the Lachine canal was advertised, respondent and appellant met him, Porteous, at his house, in Montreal, and, after deliberating whether appellant could be spared from the works at Isle-aux-Noix, without loss to the concern, they concludel that respondent could conduct them without appellant, and Porteous agreed, on his part, to allow appellant to contract for the Lachine canal, leaving him to make such urrangement with respondent us they, appellant and respondent, should see fit. It was also proved, by various witnesses, that, after the contracts relat.ag to the Lachine canal had been entered into, appellant quitted Isle-aux-Noix, to superintend the Luchine contracts, and respondent took up his residence entirely at Isle-aux-Noix, and superintended the government contract to its completion. Griffin's evidence was also confirmed by witnesses, who spoke to conversations at ditferent times with uppellant, in which expressions were used by appellant, amounting to an admission of respondent having an interest, as partner, in the Lachine contracts, and cireumstances most consistent with such à partnership were also sworn to by several persons, and letters from appellant to respondent were also put in, further confirmatory of the existence of the partnership interest. [n answer to respondent's case, witnesses were called, on the part of appellant, whose evidence amounted to little more than that they were ignorant of, and had never heard of respondent having any share or interest in the Lachine contracts. Appellant’s counsel objected to the reception of parol evidence, to prove the partnership agreement spoken to by Griffin; and the Court of King's Bench, by its judgment of the 19th of february 1831, declared all the oral proof which had been taken on respondent’s part, to be iligal and inadmissable, to establish the existence of such x partnership. Froin this judgment, respondent appealed #6 the Court of Appeals, which court, on the 20th of january 1837, reversed the decision of the Court of King's Bench, and, being of opinion that à co-partnership had existed, as alleged in the declaration, ordered appellant to render an account, as prayed, and that the record should be remitted to the court below, for further proceedings. Appellant, in conformity with the judgment of the Court of Appeals, rendered an account in the Court of King’s Bench, which was formally accepted by respondent ; and thereupon, the Court of Queen’s Bench, by its judgment of the 28th of

his evidernment nt were itract at A ppellant bo.

works at oncluded lant, and contract urrangespondent, ses, that, had been perintend residence verninent also conditferent used by nt having d circumwere also pellant to f the expondents nt, whose ere ignoany share ounsel obthe part- » Court of uary 1831, pn r'esponablish the nt, responrt, on the Court of artnership appellant à AEauld roceedings. e Court of T& Bench, thereupon, he 28th of

january 1846, adjudged the appellant to pay to respondent the sum of £720, 12s, 4ÿd., current money of the province of Canuda, together with interest and costs of suit. Against the the judgment of the Court of Queen's Bench, appellant appenled to the Court of Appeals, which court, by its judgment bearing date the 9th of march 1846, affirmed the jJudgment appeuled against, Appellant then appeuled to Her Mujesty in Council, nad the appeal now came on for hearing. Twiss, Q. C., and HETHERINGTON, for appellant : No such partnership, as is stated in the declaration, was ever constituted respecting the Lachine canal. Griffin alone speuks of the agreement to enter into a partnership, but his evidence is contradicted by respondent’s witnesses, and is, in itself, upon the face of it, improbable ; but, even if his testimony, is admissible, we submit that no sufficient proof was given in the auction, of any such partnership having been constituted. If Griffin's testimony be true, the case then resvlves itself into two questions of law: First, whether, according to the present law of Canada, the alleged partnership contrat could be proved by parol evidence ; and, secondly, whether, if the english law of contracts wus to prevail, this case was not within the exception contained in the 4th section of the Statute of Frauds (29 Car. IT, c. 3), the contract not being capable of being completed within one yeur. First, there can be no doubt that, according to the french law, which was in force in Lower Canada, prior to the passing of the Canadian Act, 25 Geo, III, c. 2, parol evidence would not be admissible to prove the alleged partnership. The law, upon this point, is thus laid down in the Ordonnance de Moulins, in the year 1566 art, 54 (1). ‘“ Pour obnier à multiplication de fuits que l'on a vu ci-devunt étre mis en avant en jugement, sujets à preuve de témoins, et reproche d'iceux, dont ‘adviennent plusieurs inconvénients et involutions de procès : avons ordonné et ordonnons que dorénavant de toutes choses excédant la somme ou vuleur de cent livres pour une fois payer, seront passés contrats par-devant notaires et témoins, “par lesquels contrats seulement sera fuite et reçue toute “ preuve ès-dites mutières, sans recevoir aucune preuve par “témoins, outre le contenu au contrat, ni sur ce qui serait alléqué avoir été dit ou convenu avant icelui, lors et depuis. En quoi n'entendons exclure les preuves des conventions particulières, et autres qui seraient faites par les “ parties sous leurs seine. sceaux et écritures privées.” This Ordonnance was extended by another Ordonnance, passed

(1) Zsambert, Anciennes Lois Françaises, éd. Paris. 1829, tome 14, p. 208.

404 RAPPORTS JUDICIAIRES REVISIS

in 1667. The second article says (1): “Seront passés actes pur ‘ devant notaires, ow sous signature privée, de toutes choses “eæcédant lu somme où valeur de cent Livres, méme pour “ dépôts volontaires, et ne sera reçu aucune preuve par témoins contre et outre le contenu aux actes, ni sur ce qui serait alléqué avoir été dit avant Lors ou depuis les actes, “encore qu'il s'agit d'une sonme ou valeur moindre de cent ‘livres, sans toutefois rien innover pour ce regard, en ce qui s'observe en la justice des juges et consuls des marehands.” The third article excepts the cases of accidents, and cases where there was à commencement of proof by writing. The Ordonnance 0f 1566 had the word contrats, and it is doubtful whether it is not contined to agreements ; but this iatter Ordonnance omits the word contrats, and has the word choses ; and it is clear, from the french authoïities, that all things, with the exception of the cases excepted, are within its meaning. Pothier, on Obligutions (2): Toullier, Droit Civil Francais (3). Nothing dehors the contract is to be received. It was to get rid of the inconvenience arising from the extensive and inconvenient CpérAUor of the ordonnance Of 1667, that the Canadian Act, 25 Geo. ITE €. 2, was passed, admitting the rules of evidence as laid down in the courts in England. That part regulating the admission of evidence (art. 10), is in these words: % Dans la preuve di ‘ tout fait concernant Les affaires de commerce, on «ur “recours dans toutes les cours de juridiction civile en cette “prov ince, «ua formes adinises, quant aux témoignages, s, par “ Les lois anglaises” We subinit, however, that the operation of this Colonial Act is confined to matters of commerce or commercial contracts. Now, this agreement between the parties was not a commercial affuir, it was a mere building contract : until the act G Geo. IV, e. 16, builders were not within the !nkrupt laws. (Lord CAMPBELL: Whereever capital is to be laid out on any work, and a risk run of profit or loss, it is à commercial venture). (PEMBERTON LEIGH : Each act of buying and selling is an act of commerce : à number of such acts would make x trader). Secondly, Rutherford has not brought himself within the rule of the french law, which allows proof dehors the written contract. It was not intended by the Canadian Act, 25 Geo. TTL, c. 2 (4), to let

(1)Voureanu Commentaire sur lOrdonnance Civile du mois d'avril 1667, vol, 1, tit. 20, éd, Paris, 1767 ; Zsambert, Anciennes Lois Françaises, vol. IS, p. 137.

(2) By Evans, p. 4, c, 2, arts, 1 and 2.

(3) Tom. 9, tit. 3, ce. 6, art, 1, pp. 17, 18.

(4; 1 Rennard's Act and Ordonnances of Lower-Canada, 1845.

üP} alle and It i Gri sn

actes pur tes choses dme pour "CUVE par sur Ce qua s Les actes, re de cent £ en ce qui urehands” and cases iting. The and it is ,: but this TL has the rities, that cepted, are : Toullier, ntract is to nee arising the ordon- [,e. 2, was own in the lmission of | preuve cle , ON Url ile en cette gnages, par Le operation nmineree or tween the re building ss were not Whereever un ot profit ON LEIGH :

rce : & nuniy, Rutherthe french ct, It was 2 (4), to let

k d'avril 1661, icaises, vol. LS,

in parol proof of agreements relating to mercantile matters : but only of facts relating to mercantile matters ; and thereby, in effect, get rid of the ordonnunce of 1667, and leave the french law as it was under the ordonnance de Moulins. (Lord CaAMPBELL: The court below held, that the law of England, as to the admission of evidence, applied ; you argue that the Canadian Act respecting the admission of evidence did not apply, but that the case ought to have been decided by the cld french law). Ves. The only remaining point, then, is this : if the english law prevails, then parol evidence was inadmissable, because the contract was not performed within à year, The fourth section of the Statute of frauds, 29 Car. IT, ce. 3, says that, where an agreement is not to be performed within à year, it cannot be proved by parol evidence. Now here the contract was not performed until the year 1826, and if the contract for the works could not be performed within the year, the same objection would apply to any contract relative to the protits to be derived from the works. Boydell v. Drummond (1).

MARTIN, Q. C., and TEMPLE appeared for respondent ; but their Lordships, without calling upon them, delivered judement as follows :

Lord CAMPBELL: Having heard the very elaborate and able argument on the part of appellant, their Lordships have come to the clear conclusion that this judgment onght to be affirmed. It is admitted, and very properly admitted, that if the parol evidence be received, and be believed, it supports the declaration ; the question between the parties being, whether the declaration is. supported or not. Now, if the evidence is received, ought it to be believed ? We see no reason why it should not be believed. It has not been discredited by any court to which the case has hitherto been submitted. The Court of Queen's Bench at Montreal thought it was inadmissible, but gave no opinion at all against the credibility of the witnesses. When the case came before the Court of Appeals of Lower-Canada, they thought the evidence was admissible, that it was credible evidence, and that it supported the declaration. We think they came to a right conclusion; for, notwithstanding some discrepancies which appear, there is à strong body of evidence to support the allegation in the declaration, and to show that Rutherforil and McKay ‘vere to be jointly concerned in this adventure. It is adinitte. by appellant's counsel, that if the evidence of Griffin be oelieved, it supports the ense : and we think there is no gross improbability in anything that he states, and he

(1) 11 East, 142; K, C, 2 Camp., 157,

is strongly supported by some facts spoken to by the other witnesses. Then, the great question is, whether the contract which is alleged in the declaration, must be proved by writing ? If it must be proved by writing, certainly there has not been that proof given. Now, two questions have been raised. First, with regard to how it would be according to the french law; and, seccndly, how it would be with regard to the english law, if the english law is to prevail ? Their Lordships are of opinion, that it is unnecessary to consider the tirst question, with regard to the construction of the Ordonnance de Moulins, or of the subsequent ordonnance of 1667, because their Lordships are all clearly of opinion, that, according to the Canadian Act. the question is to be determined by the law of England. In the 25th of Geo. TIT, an act passed the Legislature of Lower-Canada, which was to regulate the proceedings in the courts of justice, and, among other things, it was expressly enacted, that ir proof of all facts concerning commercial matters, recourse should be had, in all courts of civil jurisdiction in the province, to the rules of evidence laid down by the laws of England. Is or is not this x case concerning x commercial matter ? It seems to us that the legislature intended, that all feudal matters there, which concerned the customs of the canadians, though they are now subject to the rule of England, should remain untouched; and with respect to contructs to be entered into by englishmen who were settled there, or between them and natives, or between natives amongst themselves, all such contracts should be enforced according to the rules and law of England. Now, this is à contract for the making of a canal, whereby a large capital is to be laid out, and à considerable risk is to be run, and we think that it is a matter within the meaning of this section concerning commerce ; and that being so, we think, by this enactment, the contract is to be proved by the rules of evidence laid down by the english law. We cannot for a moment listen to the distinction which was attempted at the bar, between proof of a contract, and proof of the performance of a contract. It would be very strange if such a distinction had been made by the legislature of Lower-Canada, but it seems to us, it is not made, because it speaks of all facts concerning commercial matters and the facts by which x contract is constituted, are facts concerning commercial matters, as much as the facts respecting the performance of the contract. That being so, we come to consider whether, according to the law of England, the evidence adduced in support of his declaration is admissible in this cause. Now,it is not disputed that it would Le so, unless under the 4th scetion of the Statute of Frauds

the other > contract d by wrie has not en raised.

he french d to the Lordships the tirst lonnance 7, because ording to A by the assed the > the prothings, it oncerning courts of lence laid case conthe legishich conare now itouched :

-englishatives, or contracts "of Enga canal, isiderable ithin the hat being e proved aw. We hich was and proof strange if of Lowecause it and the

concerespecting we come land, the is adimisit would Frauds

it is inadmissible. The 4th section of the Statute of Frauds enacts : “ that no action shall be brought, whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate ; or to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum, or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto, to be lawfully authorized.” The question, there fore, is, is the agreement which is set out in this declaration, such an agreement as is here struck at, an agreement that is to be performed within the space of x yeur? No case has been cited which is at all in point, and none could be cited, because we believe no such case is to be found in the books. Boydell v. Drummond, and the class of cases to which appellant’s counsel referred, are confined to contracts as beeween the contracting parties for the work that is to be done : but this contract is not as between the contracting parties who are to do the work, it 1s of a totally different nature, namely, as Was very properly, and in very correct language, expressed at the bar, this is the vendition of a right. Then, why is it not to be performed within a year ? McKay agreed he would let in Rutherford as a partner. Instead of being performed within a year, it was performed instantly, when the agreement was struck. That being the case, it was not such an agreement as is not to be performed within a year, but it is an agreement which is to be performed instanter. The moment the parties entered into this agreement, they had all the mutual rights and liabilities which belonged to them as joint partners in the concern. Then, the Statute of Frauds not applying to this case, by the law of England, parol evidence would be admissible, and, by the law of England, we think the case must be determined. Their Lordships, therefore, have come to the conclusion, that the judgiment of the Court of Appeal was right, and that it ought to be affirmed, with costs. (6 Moore’s P. C. Rep., 413.)

PIRE Te