The counsel for
Sir John laid great stress upon the erroneous manner in which the
action had been laid, and contended that as the English form of'
assumpsit' had been taken, in order to get both debt and damages,
instead of a single action of damages being brought, all the
consequences of the form adopted must be taken by the plaintiff, who,
not having proved _damages_, or even stated them, must be held by
the court to have made out no case, and be cast accordingly. The
counsel quoted the old French law, and a French law-writer of 1700,
Chardon, and also English and Canadian authorities. The French Canadian
judge having, during the oration, thrown in an observation or two in
English, which he did not speak over fluently, at length uttered in
French a long comment upon the fallacy of the argument--which sounded
strangely. The counsel for the architect went at the argument of his
opponent with great vigour, stimulated by the expressed opinion of
Judge Mondelet, and went back to the days of ancient Rome to show that
forms of action had been difficult even in those days, having once
caused a revolt. He declared that even in England they were as
unsettled as ever; and wound up by propounding as a dogma, that the
Canadian law was neither English, French, Roman, nor of any other
precedent, but was founded upon common sense, which was the only guide
and authority in the administration of it.
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