at St. Roc, were proved. The plaintiff admitted that he had received 51. on account. At the hearing, Vanfelson, for the plaintiff, said he relied on the second count in the declaration, under which, the plaintiff was entitled to recover freight for the quantity of barrels delivered by him to the defendants. That the damages, which the defendants had set forth in their plea could not be awarded to them, under the issue raised between the parties, inasmuch as damages were not specifically claimed, and the Court could not grant ultra petita; that if any damages had been suffered, or could be claimed, by the defendants, they could only be made. the subject matter of an incidental cross demande which the defendants had not set up. Stuart, for the defendants, contended that the plaintiff ought to have brought his action upon the special agreement, implied promisses could only be raised where there are no express promisses, but supposing that a general indebitatus assumpsit lay in the present instance, the only principle upon which it could be supported, was the general one, quod nemo debet alterius detrimento locupletari: the plea, therefore, and the evidence, in this cause, met the very gist of the plaintiff's action, they shew that the plaintiff did not deserve to have of the defendants the sum demanded by the declaration, but only the sum tendered, being £2: 10. An incidental demand would have been necessary, if the action had been any other than a general indebitatus assumpsit; and it was not now competent to the plaintiff, to object to the subject matter of the plea, as he had answered it, and proof had been, in consequence, ordered thereon. The Court took time to consider the case; and on this day, the CHIEF JUSTICE delivered the opinion of the Court, as follows: C 3 The 1810. GUAY against HUNTERS. 1810. GUAY against The demand of the plaintiff is a quantum meruit for freight, to which the defendants answer, that HUNTERS Guay the plaintiff, made a special agreement for the voyage, and that he did not perform it. They have not however instituted a cross demande, for the damages which they suffered by the non-performance of this agreement, so that the sole question for our consideration is, whether, in this cause, the nonperformance of the special agreement can defeat the plaintiff's right to recover, to the extent in which the defendants have benefited by his services, upon an implied agreement which is the foundation of the present action? And we think it cannot. The action, in this instance, is not brought upon the original contract, but upon a quasi contract, founded on the consideration of the benefit, which the defendants have received, and implied from their acceptance of the cargo, which the plaintiff brought to Quebec. The case is within the rule, laid down in Luke v. Lyde, (a) in which an implied undertaking was raised, according to the principles of marine contracts, on the grounds of beneficial service, and labour performed by the plaintiff for the defendant, and by him accepted, for which, no other than the plaintiff was entitled to recover. This rule has been recognised in the recent cases of Molloy v. Backer, (b) and Liddard v. Lopes (c.) and we know nothing in the law of Canada which militates against it; it would certainly be unjust if it were otherwise. For the damages, occasioned by the plaintiff's nonperformance of the original contract, the defendants have their remedy; but we cannot stop the present plaintiff in his course, to recover that which he has thus earned, until the defendants shall think proper to institute their action for the recovery of their da mages. (a) 2 Burr. 882....(b) 5 East, 332, (c) 10. East, 529. The 1810. GUAY against The judgment, therefore must be entered up pro rata, 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 under the 127 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. article, and that of six months under the 126 article of the custom of Pa tend to farmers 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 le- they gally 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 specially, that lowed to plead "the plaintiffs did sell to the defendant, and the which amounts" defendant did purchase of the plaintiffs 20,000 to no more than sue. And pay ment and tender must be plead perpetual the general is- " feet, more or less, of white Pine Timber, and 10,000 Pipe Staves, more or less, &c." That the ed by way of 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 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. FORBES against ATKINSON. |