i ' siderin

i

HASZARD’S GAZETTE. JUNE 8.

WLQIAL IJGIILATUII. House or Aeesmsar. IeIsvda'y. April 0. I868. XIII. DAI.I.AOK‘I PITITIOI.

(l_!cmlaeed.) _ , H? in Offmmlttse on the Report of the 8 ttse ppslntsdtcre‘tcnthe ' ' Der.-raim—IIon. Mrilgerdine in 150 chllft I j Eon. Hr. 'boIN'roI. It is indeed uito n h . iiieniher ort . so) one: con- hie ition asa proprietary agent, it is ind qui refreshing. It wculd,kewever, be still more gratifying, were we assured a no such cases of extreme he_rdship as he he;

t"§.*h°é'&?u°:?tl.‘h.."%£:. .3.

ti

of the Special Glltllittee is. net as full as

t ought to have-been. In its ‘present form, it ‘Is csrmiely mlcule to eflct iuiuriously the porivets and professional characters of the At-. rncys who were '

connected with the case. I

was t in the Committee Room when Cs t. Cum rlaii ’e ntwas ' cxeni .an I hoards. remember what was ehbd b him

‘He said Ca t Cumberland had taken the origi-

nal Rent ks with him to England, but that

. was lord, th tween

_copiee of them, containing statements of all .0 ii accounts, were left with him. Pic stated t Derrach’e account showed a certain he- lance of arrears of Rent, and that the proceed- ings instituted epinst him (Derrach) were for the recovery of such arrears. The re rt is ‘certainly too meagre es res the e dence. Mr. Pope, as Capt. Camber nd's A t, being ‘ rincipally concerned in the matter, t was due ' that the substance of his evidence should be fairly laid before the House, in the Report_; that it might go forth to the ublic. dance it is true, is append to the Report: and it will be printed the Appendix to the ‘Journals of the Session; but that will render little or no service to Mr.Pope, for very few, besides ‘members of the House, will have an opportuni to consult the Journals. Mr. Po , stated at “I0 Special Committee that, at e timea ’ was givcn,to Darrach, in 1840, there was due to the landlord the sum of £51 4s. 4d It was also stated, in evidence, that al- though confession wee made for £50, that was onl a nominal sum, end that the costs of the Plain ' ’ Attorney were £15, on the first ac- tion ; end that the second judgment was in de- fault. Now all these facts, as well as other r- aculare, ehould,I think, have been state in e Report; end, yet, it makes no mention of them. In order to remedy the defects of the Report, with t to" evidence,I will take leave to read euc parts of the evidence as I think, should, in justice to the Attorneys, have been set forth in the port. The following is the substance of whet was then read, _e hon. gentleman, from c

ed in and exam- tNeilDerrach

Judgment was aged on the 21st. Jam, 1852,

for 50, with £1 8s.10d.Costs. On the Judg-

ment, Execution issued on the 21st .len., 1852- . to

12s 6d — e eeoon u gment, on the 11th Feb.,l852.

I Levy

s. . e two Levies amountto £82 5e., bein £58 8s. 4d., the ssuount of Debt sued for, toget or with £23 16s. 8d. costs."-—Both Judgments were not obtained

at, the gins time. One was an Action of Cove‘- nant,‘ eLeesedeted9thNev. 1846; thee er e'iiAction of Debt for I ycar’e , us an er the Indciiture, from the let. Jen., 1851, to

same _ the let. Jan., 1852, endon an account stated.- Iwes "Capt. Cumberland's Agent and Attorae . —-The Action of Covenant was defended by e resent Attorney General (Elon.Gbarlee Young). be other action was unilefended.-No pey- mcnts were made on the Action of Covenant, that I am aware, of.— . Pope in s’ Derrach hsdoccu ied,ee"1‘enant of 0%.’ Cumberland and the . sees Fanning, _e la of 60'soree, for a number of Years, revi- onsl_y to hisfisbtting the Lease, and psi Rent for it. In I ,the hi he Lease van to him, the e sum of £51 ts. Ad. The party, he- the date of the Lease end the year 1849, ‘ e “oh i ymeiitsyhiadmonply. end other} Vi”. W a ‘P P’°P '° P'!“'°l“° Rent under s , , would be more than suihcient for the payment thereof, but which were put tothe credit of his former account, hich I believe vs been chiefly for Bent.-I do not know that Derrech

cce -‘—For the amount paid creditoe the second Dc'you know the now produced dated fltli, Pope is iiui,r..: ltisOa t. Camber u.- xeet. t e peers evidence before Ocmmi thetthegofbstweedueto

. Y9 . ‘Mm tekcnaloese ..,..................“°"... .........~i..g::.?.‘l he elweysectedforhlehtlienwho sin- eepehbieof . set. What on me rgeArchl- the 1‘ .SevsnPoiiade endcostswsre

feiii ,~E .,,,§., _ ‘viii; :5 at 5?...

ii. 'i pi i! .§:,i 5. gs§;e,. E :%:iii§l§‘;:.§._ r 2:54 I

Etiifl . riii-it

which Derrech was credited for the payments, made, by him, on account of Rent, iiftn-r his obteininge Lease. The amount set forth as diu- under the Lease, in thc Aflidavit, was oln'ioiisl_v an error; end to chew how easily and uninten- fioaal y errors are sometimes. made in‘ docu- ments, [wish to call the attention of the Commit- tee to an errnrin the Co y ofMr. Pgpcfls A@da- vit. The Alfidavit was ted"22d. ay, 1801;" and yet, in the certified thereof, the date

iven is “ 22nd. May, 1835. The liardsliip of Rio case has been strongly insisted upon. by some hon. members; but without tllll'llt‘lI'llI cause, I think. It would have been a hard case

indeed. bad it been clearly proved that the sum

t of .433 18s. 2d. was ell that was actually due by

Darrach to Capt. Cumberland ; but the features ’f the‘ case are altogether _ y into account that, at the time the Lease was iven to Darrach, the sum of £51 4s-Id was due y him, as arrears of Rent, to Capt. Cumber- land. And notwi tend‘ some hon.members appear to be of o inion that, even although one action might iave been justifiable, two actions got so,—I am satisfied, by the explanations which have been given, that both actions were necessary.

Hon. the Sruxxii. It has been said that the Report of the Sppcial Committeeought to have contained comet in like a detailed statement of the evidence of e Attorneys who were em- pgcyed in this case ; _and that, had that evidence

on allowed due wei lit and rominence in the Report, the whole a ir won d have wor_n_ an aspect much less favorable to the Petition- er, and much more creditable to the other

rties concerned. I do not think so, however. n the contra‘:-y, it appears to me that the

Report instead being inany way invalidatedby the evidence of the Attorne s, is, in all essential points, sushined and con irincd by that very evidence. It is true that Mr. Pope, the Agent and Attorney of Capt. Cumberland, states, in his evidence, that, in the co yof Ca t. Cumber- land’s Rent Book, left wit him, is found a be cc r arrear sof Rent, amountingto £5} -ls. 4d. stated to be due by Darrach; but it must be remembered that, in his evidence, he also states that he knows nothing at all about Darrach’s ever having acknowled himself to be indebted to Ca t. Cum r and, in any amount for arrearso Rent. Besides, Mr. Pope, by his evidence, fully establishes the genuine- ness of the Receipts produced on behalf of Darrach. and the evidence afiirded b these Receipts, would be conclusive, in any ‘ourt of Law, a inst any demand, on behalf of the landlord‘: for arrears of Rent, alleged to due at any anterior date. These Receipts con- sist of two regular and complete series, and each Recei t is, not onl for a year’s Rent, but for the lan -tax also. he first series consists of Receipts for a period of years, antecedent to, and up to the time of granting the Lease. The other is a series for a period of years, subse- quent to that time; sliewingmthat the Rent, with the exception of a small lance, had been duly paid under the Lease, up to the time of the commencement of the first Action. Could the evidence,either of the Attorneys, or of Capt. Cumberland’s statement in his Rent Book, have set aside or nullified thatofthese Receipetsl Cer- tsinl not ; for the evidence adorded by them_ is irre ragsble, and quite conclusive as to the in- justice of the Action : and, had the evidence of those Receipts and of the Lease been relied upon by Darrach's Attorney, as it ought to have been; and, had be, otherwise, discharged his duty to his client, by ii. proper defence to

C G

.the Action, based on that evidence, the result,

in the Supreme Court, would, doubtless, have been one, in full accordance with the rinci _les of law and justice, instead of one, lo . y cal ing for the interposition of those superior were with which this House is invested, or the remedy, if it can possiblybeelfected of_e grievous wrong, e , an undue workin _of the machinery of the law, in the very face 0 justice herself. We have been told that the error in the Afidavit, by which it a pears that Mr. Popfia the Agenflhend hAtI0Il$l1;y :1)“ Capt. Cumbgrlpggi swore t t e on was in e , to Capt. Cumberland, in the sum of {lift and }lp:;r(llEh uiiiigh the Lealsie, whendth; ts, set or in e vit itse , prove i incorrectness, and lainly ehewed that such a sum could not ppseibly be due under tgcfléessii, was an error 0 no con uence, an i no , and could not, injuriouslyedbect the intereelyilpg an assertion, con with the admission that the result of the pro- ings, consequent u n this Affidavit, was the issuing of an Execution e _ . ant for £44 12s. 6d. is tru y surprising. It me be the practice of the law Oourteto allow Adavite to be made in so loose and incorrect a manner: but the evidence of this case shows, that, ll(t)eWdOVOl‘ hermlehe: such e.pr_actice me eccouu amen t wyers, it is one w ic may be productI:e of cat wror_i , and give validity and elect to c ‘ms whic have no foudndation whantpyler in the prilppgples of lslw an 'ustice. t e case a proper y brcu lit before the Court; had the Counsel for the Ilefendent, add_ressin the.Bs_nch, said Here is the Afidavit of e Plaintib’ Agent and Attorney by which_it is sworn that my ciliient is justly er:_d£§r4uly ‘ilndsbtstd to ‘the Plain- in sumo an n s, orarrcars of nt, undera certain Iniilziiture of Lease, dated 9th Nov. 1846; and here are my client's Receipts“ rfR:Int£ minmhhehmme Illlldel‘ the covcnen o e , w ic ceery prove that he has dischar all the Rent accruing un r the Lease, w th the exception of a be- lence of £3 18s. 2; and I have to request that

so U‘

your Iordshgps will examine and compare the in be

Aldevit en Receipts before the trial of this Action shell proceeded with :"—had_, spine each course as this, I say, been ursued, is it at all likely that the Bench wo d have allowed In t to be entered up, either for £34, or or , as confessed by the Defendent’e Coun- sel! I am very cermin they would not; but, how leniently scever they might have dealt with the Plaintifll’ Attorney, on account of the error In s idevit, tbz would have taken care that the Defendant ould not be made a victim to it. ow, then, the Defendant's Oo'unssl could, coiieietentl with e misunder-

' of the merits of is client's case, and a re rd for his interests and the die- B of jug throw u the defence, and con- fess ' dgneet, Iem utterly at a loss to compre- and that the judges would not yet take such use of the w e e&ir,—were all the fgcasnp hit fully brought before ?em—es we same we to see t 0 wrong

b the feiiden

t, and to vindicate

examination, it will be found to liavc nothing upon the face of it, either in the color of the ink, or in any other way, which (xiii iilliml the l smallest round for a suspicion of its lmving been frau ently altered : but, on the contrary, it is evidently such, in all respects, as it was written by Capt. Cumberland. It appears that the “3 ’ in the date “I 3," was supposed to be e “ 9, ” and when Archibald Derriicb was uestioned about the Receipt, he innin- tain it was nuine. Mr. Young's own no- countofit is that when he asked him (Ari-liibald Durracli) if he was pro rcd to swear that he paid the money iiclriiow edged by the Receipt, in 1849, he maintained that the Rt-ceipt was genuine. and that itwas given when the money was paid ; and this he calls prcvarlcation. To me it ap rs that the facts of the case, in this perticu r, as res ts Archibald, may be very easily eomprehe , end without casting the smallest imputation on his honesty or ve- raci . He found that not only was the Plain- tilfs‘ Attorney disposed to accuse him of forgery or of fraudulent intentions, as respected the Re- ceipt, but that his own Attorney influenced by the representations of the other, was disposed to become his accuser also, on the same grounds , and, puzzled and disconoerted no oubt, but well assured that all the Receipts were genuine, he declared that the money was id when the Receipt was given. ’l‘liis—-e tliough, perhaps, evasive-—was nothing but thi- truth ; and ought not—piirticularl_v on the rt of an illiterate, uneducated man—- to hiivia been taken as any evideiii-c of ii fraudulciit intention. The scruple of conscience by which Mr. Young professes to have been actuated, on the sub’ cc of this Reccipt'and Archibald Dar- rach‘s eclarations concerning it, is certainly a very singular one, and utterly, must confess, beyond my comprehension. It has been very earnestly declared and maintained that this House can have no power to deal with such a case as that which is now before us ; and the lion. the Treasurer, amongst other unfortunate ex rcssions, in which he has thought proper to in ulge, concerning the S ciiil Committo an the course adopted by the louse with reference to it, has told us that we may shew our toeth. but we cannot bite, and that, if we do not wish to make fools of ourselves. we will abandon the investigation of it. I am myself of opinion that enquiries of private nature have, sometimes, too hastily entered upon ,and carried, perhaps too iiir ; but I am thoroughly convinced that, with respect to the case now under our considerati- on, we arc legitimately and constitutionally engaged. Were any representative of the poo- le to have such a case of rank 0 prcssion and injustice as that of the Petitioner Kiel Darrach, laid before him, and were he requested to bring it, by Petition, on the part of the sufferer, be- fore the Assembly. and were he to refuse to do so, he would prove himself unworthy of the confidence reposed in him by his constituents. And, were the Assembly, on having such a case brought before them by Petition, to refuse to make due enquiry concerning it with a view to the procuring of that redress for the complain- ant which, without their interference, he could not obtain, it would, at least, aford a roof that, whatever individual capacity and ta ents there might be amongst them, they were either,

.- I

as a body, wanting in a due re id for the in- dividual rights and liberties of the people, or

powers with w ich they are invested for the redress of private and public wrongs. We have told by the hon. and learned mem- ber for Charlottetown (Mr. Palmer) and the on. the nrcr, that we are not competent to deal with the case of the Petitioner. If the hon.>meiiibers had msrelyjntendeul to say that we are not capable of dealing with it in the way in which lawyers would treat it, I would not have disputed their assertion; although I might, perhaps, have replied that, for that very reason, we would be the more likely to arrive, by is direct course and straight forward investigation, at the real merits of the case: but, asthey evidently main that we have no power, no authority to investigate the case, I think it ri ht to remind them that we are su- rior to t e Courts of low. The Courts of w are merel the intorpretors and executors of the laws w ich are framed by us; end, as their interpretations of the laws are not always correct, so neither is their enforcement of them; and, whenever it shall have been made evident to us that, from any such cause, either the public in general, or individuals, have sustained oss or damages, or are made the victims of injustice, for which the can obtain no redress, by means of any of t e rescribed modes of proceeding in the Courts 0 law, they have a right, asa last resort, to appeal to us; and having the power to interfere, it is our duty to exercise it or the rectification of the wrong or injustice, sustained throu ii any misinterpreta- tion or misepplication oi the laws. Let any hon. member who is dis sed to dispute that such a power is constitutionally inherent in us,

D-I s-es

make himself acquainted with the recor of the most remer ble and most popular ro- oeedinge of the House of Commons; we as

those with respect erren Ilastin and others; and he will find that they have frcguently asserted their supremacy over Courts 0 law : and an impartial consideration of those proceed- ings will not fail, I think, to convince im that they afl'ord us precedents which fully‘ justify the course which we have adopted, wit respect to the case now before the Committee.

on. Mr. Psuixa. The Hon. the Speaker has said that Mr. Young gave it in evidence before the Special Committee as his reason for throw- ' g u Darrach's case, that his client's eon, Archi ld Derrech, had attempted to im upon him by a for or altered Receipt. ow that is not what 1 r. Young said. He did not my that Archibald Derrac had attempted to impose upon him by a forged or altered Receipt ; but that e attempted, by misrepresentation, to lead him (Mr. Young) to make such use of e Receipt as would have been im roper and free- dulent. To make this int ear, and in ‘us- tice to Mr. Youn , wit respect to the w ole matte -, I will read his evidence before the 8 cial Committee. The hon. and learned gen e- inan then read as follows :

" Hos. Cessna Yosiio called in and examin- ed:-—Queat. are you retained by Niel Darrech to fend him in an Action at the suit of B. H. Cumberland l

Ans I was retained by his son, Archibehl Dsrrscli, as agent for Niel Dsrrsch, some time in the year lO5l—in May or .liiiie—on an Action brought by Beriiiaeli l-lsrry Cumberland and Wife, against Niel Derrech for a breach of Covenant.

Qucsi. Was the cases tried in Court, and did you defend it I

Ans. To its Declaration filed, I put is two Pleas: oss the geneiel issue, and ihc others plhee

payment Pleas lislsg iesussble. a

Court, because the Agent

CIIOIIIIIIOCI

P. of the Defendant authorised inc to cenlem the

salt, which I did.

Quest. ‘What was the Agent's reason for seihorieiagl you in soafses Jedgiaeet? . Asa. hsehe saiaeio iss.

'.:|.t"oithbi .

strangely niisaplprehendod the extent of the be

Receipts, when added Iogelher, would exceed the aiuouiii of Reniclnimed uodertlie Lease. Onihe face of the-e Receipts lliere was no sppsrrnl cause for supposing that iliey were incorrect. The Agent at the Defendant informed ineihei he hsd had fro-quem conversations with the y’les'etifl's‘ Alturiiely, Mr. W. H. Pops, towards efestilg a settlement, and authorised me to show MI." Pope those Receipts for that object. Mr. Pope. shortly sfler, came into mv ollics; end, for the purpose of endeavouring to etfecta compromise, lexliibiied to lvimilie Receipie in my seeesion Sn soon as Mr. Po a saw one ofihe eceipis, he positive- ly asset that one of the figures in the year lied been altcred—fmrn recollection, I thiiili it was the year l849—Mr. Pope alleging that. by Capt. Cumberlend’e Books. the money was paid, and the Receipt given, in the year I843. Some time afterwards, when saw ihc scent of the Defend- snt. Archibald Derracli, leaked him particularly about the Receipt, desiring him to tell me ihc whole facts connected with it, and telling him Ihe consequences to himself and to his father, if that Receipt could not be substantiated in evidence- ihat. if it were proved to he's forgery. the Receipt would be impounded in Court, and he himself made liable to an Action. and that s Verdict would be passed against his father which won

csrr_v Costs; and that unless he satisfied me that ihc Receipt was bona fide, I would not allow him to go into the Witness-box. He positively assert- ed ihai the Receipt was eubstsniia|—llisI the figures had never been s|tered—thai the money had been paid in '49, and that tho Receipt had been given at the time, and that he would swear to it. 0 coin romise could be efliactcd between the Plainti ’ Attorney and the defendant. Notice of Trial was given for Iiilary Term,’ 52. I was ready for Trial on the part of the Defendant. On the morning before going into Trial, I showed the Receipt to the ppcsent Chief Justice (then practisin at the