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Colonial Cases

Johnston and Purss v. Taylor [1790]

civil procedure, interlocutory judgment - account of profits

Court of Appeals

20 February 1790

Source: Quebec Herald, 1 March 1790

[5] Our ardent desire to render this paper the vehicle of all important Intelligence which interests our readers, impells us to lay the following decision of the Provincial Court of Appeals on Saturday the 20th ult. Before the public; particularly as it operates as a precedent in cases similar in principles.

The case was, that Mrs. Ann Taylor obtained in the Court of Common Pleas, for the district of Quebec, in the term of January last, an interlocutory Judgment against Messrs. Johnston and Purss, to render an account of all the Patent Essence of Spruce, extracted and sold since the decease of Henry Taylor: the defendants obtained a rule from the Court of appeals to shew cause why an appeal should not be granted from this judgment, in virtue of a clause inserted in the Ordinance of 1785, which is as follows ---

"Provided nevertheless that an appeal may be had and obtained, in manner aforesaid, from any interlocutory sentence or judgment which may carry execution, by ordering something to be done or executed that cannot be remedied by the final sentence or judgment, or whereby the right of the matter, in contestation between the parties may in part be decided, or whereby final bearing and judgment may be unnecessarily delayed, provided always that such appeal shall not be granted and allowed except upon motion made in the Court of appeals for that purpose, and a rule served upon the other party, or his attorney, to shew cause why a writ of appeal from such interlocutory sentence or judgment should not be granted. And it is hereby ordained that a rule so served shall have the effect to stay execution upon such interlocutory sentence or judgment, until the determination of the motion for such appeal, &c."

Counsel having been heard against and for the appeal, the Chief Justice with his usual penetration, learning, and judgment delivered instanter the opinion of the Court to this effect --- "That by the civil Law no appeal lay from Interlocutory judgments" --- That by the Laws of France, administered by enlightened and learned judges, an appeal lay, but did not supersede the proceedings below, which were carried on to a definitive sentence --- That the system however is not adapted to the state and circumstances of this Province, where unfortunately we have always been dabbling with untempered mortar, which was evident by the ordinance, and the framers total ignorance of the Laws of France regarding appeals from Interlocutors, by enacting "that a rule so served shall have the effect to stay execution upon such interlocutory sentence or judgment, till the determination of the motion for such appeal."

He then demonstrated that by the clause alluded to, the appeal could not be granted, because that the interlocutory Judgment carried no Execution, ordering something to be done or executed that cannot be remedied by the final sentence or Judgment: For if upon rendering an account no debt appeared due to the plaintiff, the court below possessing a controuling authority over all their interlocutory judgments, with power or reversal, the Defendants could sustain no irretrievable damage for want of the appeal--- That the words following, "or whereby the right of the matter in contestation between the parties be in part decided," are vox et preterea nihil, as they refer to the first part of the clause, where something is ordered to be done that cannot be remedied by the final sentence. That had any order been made, which unnecessarily hung up the cause, to operate a stagnation of Justice, an appeal would be granted.

The rule to shew cause was dismissed with Costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School