1810. GUAY against The judgment, therefore must be entered up pro ratâ, for that proportion of the entire freight to be paid for 169 barrels of pot-ash, which the plaintiff HUNTERS. has earned by the transportation of the 109 barrels received by the defendants. Judgment in favor of the plaintiff for £11 11 3 with interest and costs. IN GAGNÉ against BONNEAU. Friday Feb. 16. tion of a year N this action, Gagné, amongst other things, de- The prescripmanded of Bonneau the sum of ten pounds, being the price of two oxen sold and delivered to him. under the 127 article, and that of six months under the 126 article of the custom of Pa tend to farmers they sell. To this demande, Bonneau by an Exception per- ris, do not exemptoire en droit perpetuelle, pleaded prescription, who raise what alleging that the period in which Gagné could legally make his demand, according to the 126th and 127th articles of the Custom of Paris had expired. The sale of the oxen was in March, 1806, and this action was instituted the 27th May, 1809. The parties were now heard upon the exception, Panet, for the plaintiff, Vanfelson, for the defendant, SEWELL, CH. J. The 126th and 127th articles of the Custom of Paris, extend to persons in trade, to dealers who purchase and sell, and not to farmers who raise what they sell; (a) so that the exception upon this ground must be dismissed. But the prescription annale proceeds upon the presumption of payment, and every plea of such prescription must therefore contain an averment, that the debt de(a) 1. Pothier, 4to. 362, No. 713. C 4 manded 1810. GAGNE against BONNEAU. manded has been paid, with a tender of the defendant's oath in proof of it, by a hoc paratus est verificare. (1) To this the cases of the Duke de Bouillon reported in Denizart, (b) of Mayrand v. Duberger, (c) and Monro, and others v. Place, (d) decided in this Court, are expressly in point. The exception filed in this case is defective in this respect, there is no averment of payment, and as the defendant has not so pleaded the prescription which he claims, as to entitle him to avail himself of it, his exception must upon this ground also be dismissed. Per Curiam, Exception dismissed with Costs. (1) Note. The general averment of the exception peremptoire en droit, viz." All which allegations the said defendant doth hereby aver to be true and well founded in fact and in law, and the same will verify, prove and maintain when and as this honorable Court "shall direct," is a sufficient tender of the defendant's oath, and was declared so to be by the Court in the case of Morrogh v, Munn, quod vide post in Easter Term, 1811. (b) L. C. Denizart, Verb. Prescription Nos. 101, 98 and 99. Saturday Feby. 17. THE FORBES and another against ATKINSON. "That HE declaration in this cause setforth, A defendant" to between the parties on the 30th of June, 1789, cannot be al to no more than the general is-" sue. And payment and tender must be pleaded by way of lowed to plead the plaintiffs did sell to the defendant, and the specially, that which amounts" defendant did purchase of the plaintiffs 20,000 feet, more or less, of white Pine Timber, and 10,000 Pipe Staves, more or less, &c." That the perpetual plaintiffs had performed their agreement and had in ception peremp-fact delivered 54,904 feet of Pine & 6700 Staves, &c. but that the defendant had not paid, wherefore they prayed judgment for £3027, with interest and costs. To this declaration the defendant filed a plea, en toire en Ex titled titled Défense au fonds en fait, in which he pleaded, 1st. That he was not indebted; that he did not owe, and that he did not undertake as in the declaration setforth. 2dly. That he had not failed or made default in the performance of the agreement stated in the declaration. 3dly. That no greater quantity of Pine Timber than the quantity expressed in the agreement had been delivered to him, or, received by him. 4thly. That for the quantity of timber delivered vizt. 20,000 feet of Pine Timber and 6700 Staves, he had paid in part, and 5thly. That he had made a tender and offre réelle, of the balance, which the plaintiffs had refused, before the institution of the action. The caption and conclusion of this plea were in the form prescribed for the Defense au fonds en fait by the Rules of practice, and no part of it was in the form prescribed for the Exception peremptoire en droit. The parties being at issue, an application was made by the plaintiffs for a commission to examine certain witnesses in Upper Canada, when the Court suspended its order thereon, and directed that the cause should be inscribed upon the Rolle de droit, for a preliminary hearing en droit upon the pleadings, and Ross, of Counsel for the plaintiffs, and Bowen, of Counsel for the defendant, having been heard, the judgment of the Court was delivered this day by SEWELL, CH. J. The case before us is the first in which a question upon pleading has occurred since 1810. against since the establishment of our present Rules and FORBES Orders of Practice; and this will lead us to a more ATKINSON. extended consideration of the subject of pleading in general, than the case, under other circumstances, would call for. LOGICAL, DISTINCT, and CONSISTENT PLEADING is essential to the right administration of Justice, and to facilitate the attainment of this important object, the several forms of pleadings, contained in the Appendix to the Rules and Orders, have been prescribed. The principles upon which these forms are founded, should be thoroughly understood, aud I shall avail myself of the opportunity now offered, to explain them generally, before I deliver the opi nion of the Court with respect to the particular points upon which we are to decide. Every contested suit at law consists of the demande on one side, and the defense, upon the other. The term demande implies the representation, and the claim of redress, which the plaintiff, in any instance, or suit at law, makes against the defendant, for or by reason of the facts which constitute his cause of action; and a demande is therefore said to be "the exercise of a right of action." (a) The term defense on the other hand, implies all that the defendant offers, by way of opposition or resistance against the plaintiff's demande. (b) The matters which constitute the demande and the defense, in any case, are respectively setforth in the pleadings of the parties, which vary, according to the grounds upon which they are made, and the objects they are designed to attain. Pleading, therefore is the statement of the facts which constitute the plaintiff's cause of action, or the defendant's ground of defence, exhibited in writing in technical form. (a) 1. Pigeau. 33. (b) 7 Pothier 4to. 14. Code Civile 5. Tit. Art. 1st. and 5th. Jud. M. S. S. It 1810. FORBES against It is the mode of alleging that, which is afterwards to become in evidence the support of the party by whom it is alleged, (c) or, a simple negatur of that ATKINSON. which is alleged by an adversary; the former, being an affirmative, the latter, a negative pleading. (d) An affirmative pleading consists of two parts, the libel and the conclusion. In the libel, (or narration as it is sometimes called) the facts which constitute the ground of the pleading, that is to say, the premisses, from which the conclusions in law are to follow, are alleged and setforth distinctly as to time, place, person, and circumstance; (e) without comment or argument of any kind. (f) And to the libel, which should contain all that is necessary to justify the conclusion and no more, is added the prayer of the pleader, in apt words, for that specific remedy or relief, to which, by law, the facts which he has libelled entitle him, and this is the conclusion. (g) A negative pleading, in like manner, consists of two parts; of a direct denegation of that to which it answers, and of the conclusion, which asks that relief or remedy to which the pleader will be by law entitled, if that, which he denies, be not verified. In the Law of England, it is a general rule in pleading, "That a mere prayer of judgment with"out pointing out the appropriate remedy, is suf 66 ficient, and that the facts being shewn, the Court, ex officio, is bound to pronounce the proper judg"ment." (h) But the reverse of this rule is the principle of the law of Canada. With us the conclusions are held to be essential to the proceedings, (i) and must contain, à peine de nullité, all that the (c) 3 T. Rep. 159. Doug. 278.. (d) Hennecius in Pandectas, part 2. S. 32. Brown's Civil Law, V. I. p. 35...(e) 1. Pigeau 269. 270. I. Gauret, 4. Code Civile, Tit. 2. Art. 1. & Tit. 20 Art. 1. (f) 7th Pothier, 4to 55. Art. 4 c. 3. Code Civile Tit. 20 Art. 1. (g) Repertoire, Verbo, Conclure 8vo. V. 14. p. 77. (h) 4th East 502, 509. 5th. Ib. 270, 271. 1st. Chitty 243, 445. (i) 14 Vol. Repertoire 8vo. p. 77. Verbo. Conclure. Jud. M. S. S. judg |