Law, Life, and Government at Red River, Volume 2: General Quarterly Court of Assiniboia, Annotated Records, 1844-1872 9780773597075

Table of contents :
Cover
Contents
Preface
Conventions and Abbreviations
Figures
1 General Quarterly Court of Assiniboia Records, 1844–48
2 General Quarterly Court of Assiniboia Records, 1848–54
3 General Quarterly Court of Assiniboia Records, 1855–60
4 General Quarterly Court of Assiniboia Records, 1861–65
5 General Quarterly Court of Assiniboia Records, 1866–69
6 General Quarterly Court Records for Manitoba, 1870–72
Glossary
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
X
Y
Notes
Bibliography
Case List
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
Q
R
S
T
U
V
W
Y

Citation preview

L aw, L i f e , a n d G o v e r n m e n t a t R e d R i v e r Volume 2

Rupert’s Land Record Society Series Jennifer S.H. Brown, Editor 1 The English River Book A North West Company Journal and Account Book of 1786 Edited by Harry W. Duckworth 2 A Country So Interesting The Hudson’s Bay Company and Two Centuries of Mapping, 1670–1870 Richard I. Ruggles 3 Arctic Artist The Journal and Paintings of George Back, Midshipman with Franklin, 1819–1822 Edited by C. Stuart Houston Commentary by I.S. MacLaren 4 Ellen Smallboy Glimpses of a Cree Woman’s Life Regina Flannery

9 The Spirit Lives in the Mind Omushkego Stories, Lives, and Dreams Louis Bird Edited and Compiled by Susan Elaine Gray 10 Memories, Myths, and Dreams of an Ojibwe Leader William Berens as told to A. Irving Hallowell Edited and with Introductions by Jennifer S.H. Brown and Susan Elaine Gray 11 Letters from Rupert’s Land, 1826–1840 James Hargrave of the Hudson’s Bay Company Edited by Helen E. Ross

5 Voices from Hudson Bay Cree Stories from York Factory Compiled and edited by Flora Beardy and Robert Coutts

12 Treaty No. 9 Making the Agreement to Share the Land in Far Northern Ontario in 1905 John S. Long

6 North of Athabasca Slave Lake and Mackenzie River Documents of the North West Company, 1800–1821 Edited with an Introduction by Lloyd Keith

13 Law, Life, and Government at Red River Volume 1: Settlement and Governance, 1812–1872 Dale Gibson

7 From Barrow to Boothia The Arctic Journal of Chief Factor Peter Warren Dease, 1836–1839 Edited and annotated by William Barr 8 My First Years in the Fur Trade The Journals of 1802–1804 George Nelson Edited by Laura Peers and Theresa Schenck

14 Law, Life, and Government at Red River Volume 2: General Quarterly Court of Assiniboia, Annotated Records, 1844–1872 Dale Gibson

Law, Life, and Government at Red River Volume 2 General Quarterly Court of Assiniboia, Annotated Records, 1844–1872

Dale Gibson

McGill-Queen’s University Press Montreal & Kingston • London • Chicago and The Osgoode Society for Canadian Legal History Toronto

© McGill-Queen’s University Press 2015 ISBN 978-0-7735-4563-2 (cloth) ISBN 978-0-7735-9707-5 (ePDF) Legal deposit third quarter 2015 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% postconsumer recycled), processed chlorine free This publication was supported in part with funds from the 2014 Wilson Prize for Publishing Canadian History awarded to McGill-Queen’s University Press by the L.R. Wilson Institute for Canadian History at McMaster University. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities. Library and Archives Canada Cataloguing in Publication Gibson, Dale, author Law, life, and government at Red River / Dale Gibson. (Rupert’s Land Record Society series ; 13–14) Includes bibliographical references and indexes. Contents: Volume 1. Settlement and governance, 1812–1872 – Volume 2. General Quarterly Court of Assiniboia, annotated records, 1844–1872. Issued in print and electronic formats. ISBN 978-0-7735-4521-2 (v. 1 : bound). – ISBN 978-0-7735-4522-9 (v. 1 : paperback).– ISBN 978-0-7735-4563-2 (v. 2 : bound). – ISBN 978-0-7735-9706-8 (v. 1 : ePDF).– ISBN 978-0-7735-9707-5 (v. 2 : ePDF) 1. Law – Red River Settlement – History – Sources. 2. Courts – Red River Settlement – History – Sources. 3. Community life – Red River Settlement – History – Sources. 4. Red River Settlement – Politics and government. 5. Red River Settlement – History. I. Osgoode Society for Canadian Legal History, issuing body II. Title. III. Title: Settlement and governance, 1812–1872. IV. Title: General Quarterly Court of Assiniboia, annotated records, 1844–1872. V. Series: Rupert’s Land Record Society series ; 13–14 KEM165.G528 2015 KF345.G52 2015

349.7127’43

C2015-901759-9 C2015-901760-2

Typeset by Jay Tee Graphics in 10/12 Baskerville

Contents

Preface

vii

Conventions and Abbreviations Figures following page

ix

xiv

1

General Quarterly Court of Assiniboia Records, 1844–48

3

2

General Quarterly Court of Assiniboia Records, 1848–54

89

3

General Quarterly Court of Assiniboia Records, 1855–60

240

4

General Quarterly Court of Assiniboia Records, 1861–65

314

5

General Quarterly Court of Assiniboia Records, 1866–69

474

6

General Quarterly Court Records for Manitoba, 1870–72

578

Glossary Notes

701

719

Bibliography Case List Index

845

873

833

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Preface

I attempted in volume 1 to present an overview of law and government at the Red River Settlement, and to convey the complex relationship between those institutions and the settlement’s everyday life. The stimulus for undertaking that study was the excitement with which I first read the surviving records of Red River’s senior court, the General Quarterly Court of Assiniboia. I was quickly convinced that those records, which appear complete, verbatim, and annotated in this volume, enrich the Red River story in ways that deserve a wider audience. Their hundreds of evidence summaries provide vivid glimpses – through eyes of those who were there – into virtually every aspect of life in and around the first substantial settlement in the North American northwest. The disputes they describe involve buffalo hunts, prairie fires, screeching cart caravans, remote York boat journeys, commercial intrigues, grogshop brawls, amorous hijinks in Fort Garry’s drawing rooms, and much more. What could better convey the abject dependence of female servants on their masters, for example, than Maria Thomas’s harrowing descriptions of her clergyman-employer’s clumsy, excruciating efforts to abort the fetus with which he had impregnated her? Pronouncing the settlement’s first death sentence upon young Capenesseweet for having publicly assassinated a visiting Sioux outside the Fort walls upon which he would be hanged brought tears to the eyes of even Adam Thom, the court’s hardnosed and widely despised first judge. The desperation of young women forced to hide unwanted pregnancies, give birth alone in bush or snow, and abandon their children to the elements has rarely been more dramatically described than in transcripts of the court’s several infanticide prosecutions. The plight of elderly people lacking family support in an era before the welfare state is poignantly demonstrated by senile Nicholas Courtelle’s many desperate and usually unsuccessful pleas for judicial assistance between 1854 and 1871.

viii

Preface

The tension in the tiny courtroom can be easily imagined when the Hudson’s Bay Company (HBC) attempted to enforce its legally questionable fur trade monopoly against Métis free trader Pierre-Guilleaum Sayer and three colleagues while a huge mob of armed and outraged sympathizers surrounded the courthouse. The court again displayed great courage under pressure in November 1869 when – at its final session under HBC auspices, with the settlement occupied by militant insurrectionists and their leader Louis Riel waiting nearby, anxious to reoccupy the courtroom and resume deliberations of his “Council of 24,” – Judge John Black castigated a litigant for staying away from the hearing because of his concern about “the circumstances of the country.” “I know nothing in the circumstances of the country,” Black thundered, “to make it unlikely ... that justice should be done to Mr. Hall ... [I]t is a very poor excuse for him to tell us that ... the country [is] unsettled. I say that the Court sits here under circumstances which enable us to mete to him all the justice and law to which he is entitled.” And he did so – dismissing the man’s case. Whereas volume 1 extends over a somewhat longer period than the Red River Settlement itself, this volume 2 deals only with the years for which records of the General Quarterly Court exist: 1844 to 1872. Its chapters correspond chronologically to chapters 5 to 12 inclusive of volume 1, however, and earlier parts of that volume describe the slow evolution of law, life, and governance in Rupert’s Land prior to 1844. It is hoped that background information provided in volume 1 will help to illumine the cases transcribed in this volume. Such background information has been supplemented herein by a number of additional Commentaries explaining events or circumstances having special significance for particular cases.

Conventions and Abbreviations

The format, spelling, capitalization, and punctuation are wildly inconsistent in the original court records and other documents reproduced or quoted herein. Capitalization and spelling display few discernible patterns, and punctuation – when there is any – is idiosyncratic. Although accents are occasionally added to French expressions, the anglophone clerks who penned most of the documents were usually ignorant of proper French usage. Names pose especially difficult problems. Not only are they spelled in widely differing ways by different hands, but it is not uncommon for the same person’s name to be given varied spellings by the same hand within a single document. Indian1 names involve special problems. Those problems have been dealt with herein by a hybrid approach lying somewhere between reproducing the original text as is and adopting modern conventions. My rationale is that the primary purpose of publishing these court records and related documents is to advance knowledge and understanding of their contents, not to record the inconsistent capitalization practices of the era or the variable spelling prowess of those who penned them. Where clarity was not affected, however, it seemed preferable to preserve the original form. Particular components of this approach are explained below.

Editorial Intrusions Where considered desirable in the interests of clarity to insert additions or comments within reproduced or quoted text, such have been placed between brackets and kept as brief as possible.

Style Punctuation is modern. Format, spacing, and paragraphing are generally in accordance with the original documents, but changes have been made

x

Conventions and Abbreviations

where desirable for clarity, emphasis, or efficient use of space. The more generous capitalization of the era has been mostly retained in the court records and in quotations from other original documents.

Spelling and Accenting Modern spelling and accenting have been used in transcribed documents, except for words that were commonly spelled differently at the time than they now are (gaol, shew, expence, etc.), where the original is retained. Because original spellings varied between English and US models (shifting gradually toward American usages over time), the originals are generally followed in that respect too; although inconsistencies within particular documents are usually made uniform.

Q u o t at i o n M a r k s In the court records, the testimony of witnesses was often recorded in the first-person, apparently verbatim, but the use of quotation marks was infrequent and inconsistent. In this transcription, quotation marks are added where the context suggests it is appropriate to do so. Where a quotation occurs within another, it is enclosed in inverted commas.

P a g i n at i o n a n d N u m b e r i n g o f V o l u m e s and Cases The court records are contained in four volumes. Each original volume is internally paginated, but the volumes themselves are not numbered or otherwise sequentially identified. For this transcription, the volumes have been designated “A” (November 1844 to August 1851), “B” (November 1851 to February 1863), “C” (February 1863 to May 1872), and “D” (May 1871 to August 1872: civil cases only).2 The original internal pagination has been retained, with the addition of appropriate alphabetical prefixes. Cases were not numbered sequentially in the original records – except in volume D. For this transcription it has been thought useful to do so throughout, from case 1 in November 1844 (page [A]1) to case 685 in August 1872 (page [D]185). This means that volume D contains two sets of case numbers: the original ones and those added herein. Cases were sometimes adjourned from one court session to another, and where that occurred each court appearance is identified by the same case number but with a sequential alphabetical suffix: case 455a, case 455b, and so on. In the final court session reported in volume C, some accused persons faced two or more charges with respect to the same alleged conduct (rape and indecent assault, for example). In those situations, the separate charges are

Conventions and Abbreviations

xi

indicated by sequentially numbered suffixes in parentheses: case 495(1), case 495(2), case 495(3), and so on.

Names Many persons referred to in the court records are known to historians by names with commonly accepted spellings. In such cases, if the identifications are certain, the accepted versions are preferred to spellings used in the records. Even where the particular individual is not known to history but bears a name commonly spelled a particular way, that spelling has been adopted. Where a name is spelled in more than one way within a given case, a single spelling is adopted: usually the first one that appears. For French names, modern accenting is used throughout. Indian names were written in two different ways in the original documents: either broken into hyphen-separated syllables corresponding to the syllabic alphabet; or written in run-on fashion. The latter method has been followed consistently herein.

R ac i a l / E t h n i c I d e n t i f i e r s At the time of writing, certain racial and ethnic identifiers are considered by some to be impolite or “politically incorrect.” “Indian” and “Halfbreed” are among the avoided expressions. Those terms were in common use at Red River, and in the original documents reproduced or quoted from herein, during the entire time under study. The former indicated a person of Aboriginal blood, without other known genetic identity; and the latter referred to someone of mixed Aboriginal and other blood. A further, linguistic-cultural, distinction was made between “French Halfbreeds” and “English Halfbreeds.” It would have been nonsensical to avoid the same usages herein. The expressions “Aboriginal” and “Métis” (the latter term having come into widespread use about 1869) are also employed where historically appropriate. It is impossible to pinpoint the moment when the population previously called “French Halfbreeds” began to be known as “Métis.” Although the term had undoubtedly been used well before the 1869 uprising led by Louis Riel Jr brought it into general use among anglophones as well as francophones, that year has been chosen to adopt it herein. In more recent times, “Métis” has also been applied, sometimes without an accented e, to the group called “English Halfbreeds” in this book. Since that usage did not prevail during the times discussed, it is not used here. The French and English mixed-blood populations are referred to collectively as “Halfbreeds.” “Aboriginal” embraces all Indians and Halfbreeds (as well as Inuit, although members of that group do not figure in this account).

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Conventions and Abbreviations

English Money English currency was in common use at Red River during most of the period covered, although other currencies occasionally showed up. The units were the pound sterling, or “quid” (£); the shilling, or “bob” (/), of which there were twenty in every pound; and the penny (d) of which there were twelve in every shilling. A further subdivision was the farthing, worth one-quarter of a penny, which was never referred to in the court records, but was mentioned in a newspaper account of a March 1860 trial that was never officially recorded, in which the court awarded one farthing in damages to signify its contempt for the claim.3 A conventional, but unofficial, denomination sometimes referred to at the time, but not employed in court records, was the guinea. A guinea was a kind of “baker’s dozen” pound sterling – a monetary sum equivalent to 21 shillings – in which lawyers were traditionally paid. There were no official banknotes or coins in guinea denominations, and no symbol is known to the author. In the court records, pounds, shillings, and pence are designated in various and sometimes confusing ways, often separated by dots or slashes. The convention adopted herein, unless the context demands otherwise, is to express sums in English currency as in the following example: £12.00.04 (12 pounds, 0 shillings, 4 pence).

Errors, Gaps, and Repetitions These are treated variously. Obvious spelling and accenting errors and clearly unintended repetitions are corrected without comment. Other types of errors and gaps, whether obvious or suspected, are flagged and sometimes commented upon in brackets.

A b b r e v i at i o n s i n O r i g i n a l s Ampersands, ditto marks, and other abbreviations – which were common in the originals – have usually been retained, if internally consistent and compatible with prevailing practices. Where necessary, explanations enclosed in brackets are provided.

A b b r e v i at i o n s U s e d H e r e i n “ ABC AM

ditto. See do. Archives of British Columbia Archives of Manitoba

Conventions and Abbreviations

do.

HBC HBCA JP LAC MAN MET NN NW NWC QC qv sic viz.

xiii

ditto. Used in the court records and other original documents, interchangeably with a single quotation mark (“), to indicate a repetition of the word or figure immediately above it. Hudson’s Bay Company Hudson’s Bay Company Archives (housed in AM) justice of the peace Library and Archives Canada Manitoban newspaper (suffix shows date; e.g., MAN701015 for Manitoban, 15 October 1870) Le Métis newspaper (suffix shows date; e.g., MET710527 for Le Métis, 27 May 1871) New Nation newspaper (suffix shows date; e.g., NN700107 for New Nation, 7 January 1870) Nor’-Wester newspaper (suffix shows date; e.g., NW591228 for Nor’Wester, 28 December 1859) North West Company Queen’s Counsel. See Glossary. Literally, a Latin abbreviation for “which see.” Used herein to indicate that the word preceding it is defined in the Glossary. Such. An assurance that a word or expression quoted from a document or other statement is accurately quoted. Namely. Used in the court records and other original documents to introduce a list of specific names or items comprising a group or collective entity.

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Page of the General Quarterly Court of Assiniboia records. (Courtesy of Archives of Manitoba)

Adam Thom, recorder of Rupert’s Land from 1839 to 1854, was the first legally trained judge in British Northwest America, and contributed much to Red River’s early judicial system; but his arrogance, irascibility, HBC partisanship, and francophobia nearly destroyed it. (Courtesy of Archives of Manitoba)

Francis G. Johnson was a bilingual, legally skilled, and diplomatic recorder and governor whose laziness and soft scruples blemished his contributions and ensured that he was not fondly remembered. (Courtesy of Archives of Manitoba)

Acting Recorder John Bunn, MD, Red River’s native-born, mixed-blood physician, filled numerous public offices with distinction, and proved that fine judges need not be lawyers. (Courtesy of Archives of Manitoba)

John Black came to Red River as Adam Thom’s clerk, rose to become one of its best recorders, and played a key role in bringing about Manitoba’s provincehood. (Courtesy of Archives of Manitoba)

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L aw, L i f e , a n d G o v e r n m e n t a t R e d R i v e r Volume 2

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1 General Quarterly Court of Assiniboia Records, 1844–48

The surviving records of the General Quarterly Court of Assiniboia begin with its November 1844 session. Thereafter, the court’s work may be observed much more thoroughly than previously. By that time, the court and its satellite petty courts had been in existence for over nine years, and Red River’s first legally trained judge, Recorder Adam Thom, had been on the scene for more than five years. Thom was at the peak of his influence by then, and although his arrogant and bigoted personality rubbed many the wrong way, the value of his many contributions to the court and to the Laws of Assiniboia were widely acknowledged.1 [A]12

General Quarterly Court Twenty-first November, One Thousand Eight Hundred and Forty-four Alexr. Christie Esq. Adam Thom James Bird3 Alexr. Ross George M. Carey5 John Bunn

Present: Govr. of Assiniboia, President Councillor of Assiniboia “ “ do.4 “ “ do. “ “ do. “ “ do.

Wm. Smith vs. Joseph Kirton [Case 1] [Criminal Conversation]6 The following Jury having been duly empanelled, viz:7 James Fraser John Gunn

4

Law, Life, and Government at Red River

James Inkster Angus Matheson James Monkman Sen. John Fowlies Wm. R. Smith Donald Murray William Tate Charles Larance John Inkster John McBeath The Plaintiff appeared and stated8 that he had raised this action against the Defendant for [A]2 criminal conversation9 with his wife, Mrs. Smith, under the following circumstances. For some considerable time this fall, previous to the seventh of November current, the Defendant had been living in the Plaintiff’s house, being in the habit of assisting him in whatever way he could for such accommodation, working sometimes at one job and sometimes at another. On the night of the day above mentioned, they had all gone to bed as usual, the Defendant to his and the Plaintiff with his wife to theirs. ¶10 Soon after retiring, the Plaintiff heard the Defendant saying in rather a low tone to Mrs. Smith: “Come away now,” to which she answered by telling him that she was not very well tonight. When the Defendant again said to her: “O come away. He,” meaning the Plaintiff, “is fast asleep now. He is in a sound sleep,” at last the Plaintiff’s wife went over to Kirton’s bed. ¶ But immediately thereupon the Plaintiff leapt up, and turned the Defendant out of doors, Mrs. Smith in the meantime remaining in the house. The Plaintiff felt his wife creeping over him to get out of bed, she supposing, as the Plaintiff believed, that he was asleep, although as the Plaintiff stated “He was wide awake” all the time. Under these circumstances, the Plaintiff claimed thirty pounds of damages. The Defendant denied the libel.11 Whereupon, as witnesses for the Plaintiff: Compeared12 James Franks, who, being duly sworn, deponed:13 That in the year 1836 he came out to Hudson’s Bay in the same ship with the Plaintiff and his wife, that they were well understood [A]3 to be man and wife, and had throughout the passage passed for married people, which he believed they were.14

General Quarterly Court of Assiniboia Records, 1844–48

5

Compeared also Duncan McRae,15 mason, who, being also duly sworn, deponed: That long before the circumstances of this case arose he has frequently heard the Defendant speak of the Plaintiff and his wife as married persons. That the day the Plaintiff turned his wife out of doors for her conduct with Kirton the deponent heard the Plaintiff ask his wife to state before him, the Deponent, whether, as the Plaintiff had said, they had not been lawfully married in England 16 years ago, to which Mrs. Smith replied: “You need not ask that. You know yourself.” ¶ That about three weeks after the death of Defendant’s wife, when the Plaintiff had gone up to Norne’s to thrash, the Deponent, who was then in the Plaintiff’s house, saw the Defendant and Mrs. Smith go to bed together, where they remained for a good while. That the Deponent told the Plaintiff, on his return, what was going on. That on a subsequent occasion, about six months afterwards, when the Plaintiff had gone up to George Munro’s for about eight days, the Deponent observed that the Defendant and Mrs. Smith regularly lived together night and day. That he has heard Mrs. Smith state in Kirton’s presence that she [A]4 wished the Plaintiff were dead, from which the Deponent inferred that the Plaintiff’s life was in danger. ¶ That while the Plaintiff was away for the summons16 in the present action, the Defendant came to the Deponent’s house, where Mrs. Smith then was, and, addressing her, say [sic: said?]: “Come out now and go with me. We can’t live here together. In the spring I will take you to the United States. If you’ll be true to me, I’ll be true to you, and I’ll stick to you as close as the shirt sticks to my back.” That John Gunn, Mr. Dond. Gunn’s son, and James Good were also present. The Deponent added that he did not know which of the parties was most to blame. Compeared also James Good, who, being duly sworn, deponed: That, on the day above referred to, he was at McRae’s house. That he heard Kirton, the Defendant, asking the Plaintiff’s wife to come out and go with him, saying: “If you don’t live with me, you shan’t live with Smith.” That Mrs. Smith made no reply. Compeared also the above-designed John Gunn,17 who, being also duly sworn & interrogated, deponed: That on the occasion above referred to the Deponent heard the Defendant ask the Plaintiff if he would stand to what he had said. “What was that?” asked the Plaintiff. “O,” replied the [A]5 Defendant, “that Mrs. Smith shall go and live with me.” “As to that,” remarked the Plaintiff, “I have nothing to do with it just now. She may please herself.” That the Deponent heard the Defendant then ask Mrs. Smith whether she would go with him now. That Mrs. Smith stated if she were sure he would

6

Law, Life, and Government at Red River

be good to her, she would go. “As to that,” said the Defendant, “I’ll stick to you as close as the shirt sticks to my back.” Compeared, again, James Franks, who, being re-interrogated, deponed: That while they were in the Company’s service at Red River he heard Mrs. Smith, while in a room with the Deponent’s wife, state that she had been living with another man for seven years after she was married to the Plaintiff. Compeared also Donald Gunn, schoolmaster, who, being duly sworn & interrogated, deponed: That he is aware that, about the time of the Defendant’s wife’s death, their house was in a very miserable state of repair. That Mr. & Mrs. Smith appeared to assist Kirton in his distress, and were very kind to his family. That the Deponent does not know exactly why they went. Mrs. Smith took care of one of the Defendant’s children, and Mrs. McRae the other. That [A]6 the Deponent understood it was out of pure kindness that the Plaintiff received the Defendant & his children into his house. The Jury, which was then addressed by Mr. Thom, brought in a verdict finding the Defendant liable to the Plaintiff for the amount of damages claimed, thirty pounds,18 and the Court decerned19 accordingly. Commentary The oddly named tort20 of “criminal conversation” for which William Smith sued Joseph Kirton involved more than mere talk; it was the civil wrong of having sexual intercourse with another man’s wife, as the uncontradicted evidence established had been the case here.21 A sarcastic letter from Recorder Adam Thom to Sir George Simpson the following January22 provides a supplement to the court record. According to his account, previous daytime assignations between Kirton and Mrs Smith had occurred when he “habitually loitered at home with his hostess instead of accompanying his host to the woods.” Thom mentioned that the £30 damages award was “all that Smith asked,” suggesting that even though Kirton had had to “surrender ... nearly all his property” to satisfy the award as it was, Thom might have been prepared to award more if it had been claimed. Thom also revealed that, despite having been promised that Kirton would remain as close to her as the shirt on his back was to his body, and having been offered her freedom by her husband, Mrs Smith opted to remain with Mr Smith when her lover left the colony soon after. [A]7

General Quarterly Court Twentieth February, One Thousand Eight Hundred and Forty-five

General Quarterly Court of Assiniboia Records, 1844–48

Alexr. Christie Adam Thom James Bird Geo. M. Carey Alexander Ross John Bunn Cuthbert Grant

7

Present: Esq. Govr. of Assiniboia, President “ “ “ “ “ “

James Taylor vs. Wm. McDonald [Case 2] [Defamation] A jury having been duly empanelled,23 The Plaintiff appeared personally and stated: That, about a month ago last Monday, he left his house to go to the Fort, and on the way called at George Sutherland’s, with whom he had an account to settle for a bit of cloth. But finding Sutherland at the Defendant’s house, the Plaintiff went there, where he accordingly met the Defendant and Sutherland. That while settling with Sutherland, the Plaintiff remarked that money was soon spent but hard to earn. Whereupon the Defendant observed: “It’s not hard for you, Jamie, that have long fingers.” That the Plaintiff then asked the Defendant whether he meant to call him a thief, to which the Defendant replied: “I don’t mean to call you [A]8 a thief. I only go by the world.” Under these circumstances, the Plaintiff claimed ten pounds of damages.24 The Defendant admitted the Plaintiff’s statement, and added that on being asked by him whether he meant to call him a thief, he answered: “I only go by the world,” and farther, “I only mean that you get on well with your work, and have better management than myself & many more.” The Defendant farther stated that in using the words in question he intended them to convey no other meaning than the above, & had no idea that they would have given such offence. As witness for the Plaintiff: Then compeared George Sutherland who, being solemnly sworn and interrogated, deponed: That he remembers perfectly well the circumstances of the Plaintiff’s visit to his house, the Defendant’s, on the day in question, when also Angus Matheson was present. That after the Defendant had made the remark as to the Plaintiff’s being long-fingered, he heard the Plaintiff ask the Defendant whether he meant to call him a thief, and also

8

Law, Life, and Government at Red River

heard the Defendant answer: “I don’t mean that. I only mean that you have good hands for making money, or words to that effect.” That the Deponent knows that the Defendant speaks the Gaelic language as well as the English, and that in the former tongue, or the latter either, the Deponent never heard the words long [A]9 fingered used in a reproachful sense. That, at the time, the Deponent’s own impression was that in saying what he did the Defendant meant merely that the Plaintiff was in good circumstances. All which was truth, as the Deponent should answer to God. Compeared also Angus Matheson who, being sworn and interrogated ut supra,25 substantially corroborated the preceding witness. And further deponed that, at the time, the Defendant appeared to be sorry at the Plaintiff’s having understood his words in the manner in which he appeared to have taken them up. The Jury found the Defendant not liable for the Plaintiff’s claim, and the Court assoilized26 him accordingly.

Public Interest 27 vs. Aysassooquun 28 [Case 3] [Theft and Escape] Aysassooquun having been brought to the bar of the Court, the two following Informations29 were read, viz: “District of Assiniboia, Rupert’s Land. Be it remembered that on the twentieth day of February, eighteen hundred and forty-five, the Court is given to understand that Aysassooquun, an Indian of the said District, on the 15th day of Jany. last, feloniously did steal, take, and carry away out of the [A]10 stable at Upper Fort Garry one cloth capot30 of the value of ten shillings,31 of the goods & chattels of one Patrick Gunn, against the peace of the Queen, her Crown and dignity. And therefore the consideration of the Court is requested in the premises, that due process of law may be awarded against him, the said Aysassooquun.” “District of Assiniboia, Rupert’s Land. Be it remembered that on the twentieth day of February, eighteen hundred and forty-five, the Court is given to understand that, in virtue of a warrant dated the 29th day of Jany. last, under the hand of Alexander Ross Esq., one of the Justices of the Peace for the District aforesaid, Aysassooquun, an Indian of the said District, was duly committed to the District gaol on the 29th day of Jany. last, there to abide his trial at the then next ensuing meeting of the General Court here on the charge in respect of which the said warrant was issued; that charge

General Quarterly Court of Assiniboia Records, 1844–48

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being that on the 15th day of Jany. last the said Aysassooquun feloniously did steal, take, and carry away out of the stable at Upper Fort Garry one cloth capot of the value of ten shillings, of the goods and chattels of one Patrick Gunn. And the Court is further given to understand that, on the 31st day of Jany. last, the said Aysassooquun, being then in the custody of the keeper of the said Gaol, did unlawfully escape therefrom, and go at large whithersoever [A]11 he would, to the great hindrance of justice, to the evil example of all others in like cases offending, & against the peace of the Queen, her Crown and dignity. And therefore the consideration of the Court is requested in the premises, that due process of law may be awarded against the said offender.” The Prisoner confessed both the theft and the escape, and was sentenced, for the former, to one calendar month’s imprisonment from this date, and for the latter to one week’s imprisonment from the expiration of the said calendar month.

Public Interest vs. Keetchipiwaipasse 32 [Case 4] [Murder and Assault] The following persons, viz: John R. Smith Edward Mowat Dond. Gunn James Monkman, Sr. John Jas. Smith Joseph Bird Dond. McDonald John Park Thos. Halcrow George Setter John Slater Jacob Truthwaite Wm. Donald Angus Matheson, Sr. Wm. Tait James Slater John Inkster James Inkster James Fraser John Gunn James McKay John Vincent Augn. Nolin, after taking the usual oath as Grand Jurors, were addressed by Mr. Thom,33 and the following [A]12 Bill [of Indictment] was then presented to them:34 “District of Assiniboia, Rupert’s Land, to wit: The Jurors of the Queen, upon their oath, present that Keetchepewaipas, an Indian of the said District, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the first day of January in the eighth year of the reign of Victoria, with force and arms, in the said District, in and upon

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Keetchepewaipas,35 his wife, in the peace of God and the Queen, feloniously and willfully, and of his malice aforethought, did make an assault. And the said Keetchepewaipas first above mentioned, with his hands, feloniously and willfully, and of his malice aforethought, did strike and beat his said wife in and upon her head, breast, back, & sides. And that the first above mentioned Keetchepewaipas feloniously and willfully, and of his malice aforethought, did cast and throw his said wife to and against the ice on that part of the Red River which is commonly called the Grand Rapids,36 giving to his said wife, as well by the said striking and beating as by the said casting and throwing, several mortal bruises in and upon her head, breast, back, and sides. And that the said first above-mentioned Keetchepewaipas, feloniously and willfully, and of his malice aforethought, did thereafter plunge the head and shoulders of his said wife into a [A]13 certain hole in the ice on the foresaid part of the Red River, the said hole being full of water. Of which bruises and which plunging his said wife, on the first day of the said month of January, did die. And so the Jurors aforesaid, upon their oath, do say that the said Keetchepewaipas first mentioned, his said wife, in manner and form aforesaid, did kill and murder, against the peace of the Queen, her Crown and dignity.” And the Jury, after due examination of the witnesses, having returned the foregoing as “a True Bill,” the Prisoner Keetchepewaipas was brought to the bar, the Indictment was read, and the following persons sworn as [Petty] Jurymen to try the cause, viz: Francis M. Dease Robert Clouston Alexis Carrière John McBeath J. Bapte. Larjomonière James Tait

J. P. Bourke J. Bte. Carron Donald Murray Alban Fidler Robt. McBeath Thomas Sinclair

John James Smith was sworn in as Indian Interpreter, and Keetchepewaipas, in defence, having pled not guilty, stated that everyone will have something to say about him, but that he did not kill his wife, and thinks that it was Utchebois who did so. As witnesses then: Compeared Widow Mary Kennedy who, being solemnly sworn and interrogated, deponed: That she lives at the Grand Rapids. That on [A]14 New Year’s night, after she had gone to bed, she heard someone calling out: “Kaween, Kaween,”37 and another voice saying: “Come, come, I am

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cold.” That she supposed the first voice to be a man’s, and the second a woman’s. That shortly afterwards the Deponent fell asleep, but on wakening a good while afterwards she still heard loud talking. That she arose and dressed. That she then stood outside her door, and heard voices, but could not make out what they were saying. That she then walked slowly down the bank, standing still now and then to listen. That when she was at a short distance from the Indians, as she supposed them to be, one of them called out to her: “My daughter, my daughter, this person is sick, and I don’t like to leave her.” That, not liking to go near them, the Deponent returned to her house and went to bed. That about daybreak she went down to the place on the ice where she had seen the Indians, & found some pieces of bread. That on learning afterwards that a woman had been killed, she revisited the spot and saw some marks of what to the Deponent appeared to be blood. All which was truth, as the Deponent should answer to God. Compeared also Wm. Folster, who, being sworn and interrogated, deponed: That on the evening above referred to the Deponent came home rather late, having had “a drap o’ beer, and a bit of a dance,” but he was not tipsy. That after the Deponent had slept about an hour Keetchepewaipas came in and said: “I have found [A]15 my wife frozen opposite Mary Kennedy’s bank. Come and assist me to bring her up.” That he immediately rose, but, before he had dressed, Keetchepewaipas had got a sled and ran down to the river with it. That the Deponent followed, and having come to Widow Kennedy’s bank, he saw a woman lying on the ice, as the Deponent thought, drunk. ¶ That, not liking to touch her, the Deponent desired Keetchepewaipas to put her into the sled. That he replied: “I cannot.” That the Deponent then put her in it himself, while the Indian stood by, and began to haul it towards his house, Keetchepewaipas pushing it on. That before they reached the house Keetchepewaipas wished to go away, and the Deponent told him he was not able to haul it alone. That having come to the house, Keetchepewaipas enquired of Nancy Pruden if she thought the wife was dead. Nancy replied: “Yes.” That he then suddenly dropped the body, which he had partly lifted, and ran away. ¶ That the Deponent then went to Peter Pruden’s for assistance but, not finding him at home, he went to James Ballenden’s, and told him that a dead woman was at his house. That they went and carried the body into the house. That a long time afterwards Keetchepewaipas returned and inquired of James Ballenden if the wife was [A]16 dead. That James replied: “Perhaps.” And the Indian then sat down beside the body of his wife and felt her hands and breast, and when he perceived that she was dead he said: “Utchebois has killed her.”

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¶ That the Indian did not appear to be sorry, nor did the Deponent think that he was the worse of liquor. That the Indian remained a few minutes, and then went out. All which was the truth, as the Deponent should answer to God. Compeared also James Ballenden who, having been duly sworn and interrogated, deponed: That, when called by the last preceding witness, he went to the place where the body of Keetchepewaipas’ wife was lying, and saw it on a sled. That he felt her breast, which was cold. That having carried the body into the house, the Deponent sat waiting for Keetchepewaipas, who he understood had gone to call other Indians. That at length the mother of the Deceased came, in company with the wife of Matchiquaish, and inquired if her daughter was sleeping. That the Deponent replied: “No, she is dead.” That she then removed the blanket from the Deceased’s face, looked at her, and went away. That it appeared much swollen, particularly the lips. ¶ That soon afterwards Keetchepewaipas came in and enquired if his wife was dead. That, on being told she was, he said: “Utchebois beat her while I was a little way [A]17 behind. When I came up to them my wife complained of her head, & fell into a water hole.” ¶ That when the Deponent saw the Deceased, the upper part of the body was completely drenched. That when Keetchepewaipas said: “Utchebois has killed my wife,” he added that he would kill him tomorrow. That he also said he had been drinking at Jacob Daniel’s. That on the spot where the body was found, the Deponent saw blood and water. All which was truth, as the Deponent should answer to God. Compeared also Robert Daniel who, being sworn and interrogated, deponed: That on the evening in question he saw Keetchepewaipas take his wife by the hair of the head and throw her on the fire. That the Deponent’s sister took her out. That the Indian was drunk, and the wife also. That she left the house immediately after she was taken off the fire. That her husband went with her, and that he saw Keetchepewaipas & his wife walking down the bank together, and that they walked on the ice until he lost sight of them. Deponed further that while they were drinking beer in the house, and the Indian abusing his wife, the Deponent saw him striking her about the head. All of which was truth, &c. That before Keetchepewaipasse began to beat his wife Utchebois and his wife had gone away.38 Compeared also Dr. Bunn 39 who, being sworn and [A]18 interrogated, deponed: That he had examined the body of the Deceased, observed a slight bruise on the right cheek, another on the left, and a third on the right

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corner of the mouth. That he observed a great effusion of blood between the scalp and the skull. That the brain was injected, but no effusion. That the chest bore no marks of disease. That the lungs were slightly inflated, and the right ventricle of the heart was gorged with fluid blood. That the state of the lungs and of the right ventricle denotes sudden death. That the peculiar appearance of the brain may have been occasioned by intoxication or excitement, but does not indicate death from violence applied to the head. That the state of the brain and the heart is satisfactorily accounted for by the supposition that the Deceased was drowned. That the Deponent did not think she had died either from strangulation or blows on the head. That she had been severely beaten on the head, but still not to such extent as, in the Deponent’s opinion, to cause death. That, there being no appearance of disease on the body, it appeared to the Deponent that the Deceased had died from suffocation. All which, &c. The [Petty] Jury, having been charged by Mr. Thom, consulted, & after deliberation [A]19 brought in a verdict of Not Guilty. Thereupon the following Bill was laid before the same Grand Jury, viz: “District of Assiniboia, Rupert’s Land, to wit: The Jurors for the Queen, upon their oath, present that Keetchepewaipas, an Indian of the said District, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the first day of January in the eighth year of the reign of Victoria, with force and arms, in the said District, feloniously did cause unto Keetchepewaipasse, his wife, a certain bodily injury dangerous to life by, then and there, feloniously with his fist, giving her two blows on the head. And then dragging her by the hair of her head, with intent in so doing, feloniously and willfully, and of his malice aforethought, to kill and murder his said wife. And thereby [he] did grievously injure his said wife in her body, against the peace of the Queen, the Crown and dignity.” And, the Jury having returned it as a “True Bill,” a Petty Jury was duly empanelled and, having re-interrogated the above Robert Daniel, who on oath repeated his foregoing deposition, the Jury, after due deliberation, returned a verdict of Guilty, whereupon the Court sentenced Prisoner Keetchepewaipas to solitary imprisonment for six months from 6th January last to sixth July. Commentary This rather complicated proceeding may be summarized as follows. The grand jury initially presented a “True Bill” indicting the accused of murder by beating and

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drowning his wife. But, although the medical evidence indicated that the woman had died of drowning, there was no evidence as to what had happened at the scene of the drowning. The petty jury accordingly decided that the evidence was not sufficient to convict on that charge, and brought in a verdict of not guilty of murder. The grand jury was then asked to consider a second, less serious charge of “grievously injur[ing]” the woman by beating (assault). The relative brevity of the second bill suggests that someone, probably Recorder Thom, may have drafted it on the spot. When the grand jury presented a true bill on the lesser charge, the petty jury heard one of the previous witnesses – Robert Daniel, who saw the beating – repeat his testimony, and it convicted the accused of the lesser charge on the basis of that evidence. Keetchipiwaipasse was sentenced to imprisonment for six months, commencing on 6 January, which was presumably the date upon which he was first arrested and taken into custody. The fact that even the second indictment alleged that the beating had been inflicted “with the intent ... and malice aforethought to kill and murder” is somewhat confusing, but all that it actually accused the prisoner of was felonious injury, not murder. In modern practice, that lesser offence would be included in the murder charge, enabling the petty jury to find the accused guilty of assault without referring the matter back to the grand jury or re-examining Daniel. [A]20

General Quarterly Court Fifteenth May, One Thousand Eight Hundred and Forty-five Present: Alexander Christie Esq. Adam Thom John Bunn Alexander Ross George M. Carey

Bapte. Marcellais vs. Louis Ploofe [Case 5] [Damages for Drowned Horse] The following Jury were duly empanelled, viz: Frs. M. Dease Angus Matheson Louis Bernard Bapte. Beauchemin André Carrière Thomas Harrison Pierre Gladieux Narcisse Marion Donald Murray Amable Nault Baptiste Battoche John Sutherland

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And the Plaintiff appeared and stated that he had raised this action for the recovery from the Defendant of the sum of nine pounds sterling, as the value of a horse that was drowned last winter by falling through a hole made in the ice of the Red River by the Defendant.40 The Defendant admitted that he had made the hole in question for the purpose of drawing his net, but urged, in defence, that he had marked the hole with one long stick and six shorter ones. [A]21 As witnesses for the Plaintiff: Compeared Cecile Harkness who, being duly sworn and interrogated, deponed: That when coming down the bank, one drifty day last winter, she saw the Plaintiff’s horse fall into the hole in question, his forefeet first, but cannot say whether there was any stick at the hole. That on seeing the horse fall into the hole she called to Francis Klyne to come and help her get the animal out. That he came, and they found the horse drowned. All which was truth, as the Deponent should answer to God. Compeared also Francis Klyne who, being solemnly sworn and interrogated, deponed: That on being called to, as above deponed by the preceding witness, he went to the spot where the horse was drowned. That at the hole the Deponent observed one long stick of about five or six feet, and three or four shorter ones, but they were not erect – they were lying on the  ice. And does not remember having seen them standing up. All which, &c. Compeared also John Cire who, being solemnly sworn and interrogated, deponed: That about an hour after the horse was drowned he was told by his wife of the occurrence. That he looked at the hole, which was pretty large, but saw no sticks or poles whatever. All of which was truth, &c. As witnesses for the Defendant: Compeared Joseph Laroque who, being duly sworn and interrogated, deponed: That on the morning [A]22 of the day the horse was drowned he saw the hole where the accident happened. That there were planted round it four or five sticks, one of them being from four to five feet long. That immediately after the horse was drowned he again saw the hole, and observed the sticks still standing. Compeared also Delaquette Lapierre who, being duly sworn and interrogated, deponed: That on the morning of the day the horse was drowned she saw several sticks – one about a fathom long – planted round

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the hole in question. That she also saw the hole after the horse had been drowned, and that two sticks were still standing. All which, &c. Compeared also Madame Laroque who, being sworn and interrogated, deponed: That last winter she had seen the hole in question and, in passing, had seen a long stick at it. That she cannot say when she last saw the hole. All which, &c. The Jury, having deliberated, brought in a verdict finding for the Plaintiff thirty shillings of damages and the costs of suit, the Jury stating that the fact of the hole having been so unreasonably large as to admit the horse was the main ground on which their verdict rested. And the Court decreed accordingly. Commentary This case provides a good early example of the rough-cut “equity” that several observers have said was often meted out by the court in place of strict law. There was no law in existence – apart, perhaps, from the common law tort of public nuisance, of which the jury members could hardly be expected to have been aware – that limited the size of holes that could be cut in river ice; yet the jury chose to ignore altogether the key legal issue of whether the hole had been marked in accordance with the Laws of Assiniboia and based its decision instead on the size of the hole. On the other hand, the plaintiff, having sought damages of £9, was awarded only 30 shillings, a quite small sum as compensation for the loss of a horse. One senses an attempt to be fair to both sides. The jury’s approach may well have been adopted because of the conflicting and inconclusive nature of the evidence about the poles. They could have been knocked down by the struggling horse; equally, they could have been replaced before the defendant’s witnesses arrived. [A]23

Special Meeting 41 of the General Court Fourth August, 42 One Thousand Eight Hundred & Forty-five Present: Alexander Christie Adam Thom James Bird John Bunn Alexander Ross George M. Carey

Esq. “ “ “ “ “

General Quarterly Court of Assiniboia Records, 1844–48

Cuthbert Grant

17

“

The Public Interest vs. Capenesseweet 43 [Case 6] [Murder] The following persons, viz: Joseph Monkman Joseph Daigneau John Vincent Alexis Henry Antoine Grouette Antoine Richotte Hugh Cameron Frs. M. Dease Frs. Gendron André Trottier Charles Larance Alexis Wintrel Philip Kennedy J. P. Bourke James Inkster Wm. R. Smith Thomas Thomas having been duly sworn as Grand Jurors,44 the following Bill was presented to them: “District of Assiniboia, Rupert’s Land, to wit: The Jurors for our Lady the Queen, upon their oath, present that Capenesseweet (or He that has been Changed into a Bird), an Indian of the Saulteaux Nation within the limits of Red River Settlement in the [A]24 District aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the thirty-first day of August in the ninth year of the reign of our sovereign Victoria, with force and arms, in the District aforesaid, in and upon one Tatungaokaysnay (the Buffalo that Lags Behind), an Indian of the Sioux Nation, in the peace of God and our said Sovereign the Queen then and there being, feloniously, willfully, and of his malice aforethought, did make an assault. And that the said Capenesseweet a certain gun, of the value of ten shillings,45 then and there loaded and charged with gunpowder and one leaden bullet, which gun the said Capenesseweet in his hands then and there had and held to, against, and upon the said Tatungaokaysnay, then and there feloniously, willfully, and of his malice aforethought, did shoot and discharge. And that the said Capenesseweet, with the leaden bullet aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder sent forth as aforesaid, the said Capenesseweet in and upon the back of him, the said Tatungaokaysnay, a little below the middle point between his shoulder blades, then and there feloniously, willfully and of his malice aforethought did strike, penetrate and wound, giving to the said Tatungaokaysnay, then and there, with the [A]25 leaden bullet aforesaid, so as aforesaid shot & sent forth out of the gun aforesaid, by the

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said Capenesseweet, in and upon the back of him, the said Tatungaokaysnay, a little below the middle point between his shoulder blades, one mortal wound reaching from the back, where the said bullet entered, to & through the breast of the said Tatungaokaysnay, the said bullet having perforated the body of the said Tatungaokaysnay. Of which said mortal wound the said Tatungaokaysnay in the District aforesaid instantly did die. And so the Jurors aforesaid, upon their oath aforesaid, do say that the said Capenesseweet the said Tatungaokaysnay, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and murder, against the peace of the Queen, her Crown & dignity; And the Jurors aforesaid, upon their oath aforesaid, do further say that the before-designed Capanesseweet, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the foresaid thirty-first day of the said month of August, with force and arms, within the limits of the Red River Settlement in the District aforesaid, in and upon one Apetwaywetungk46 (the Ceaseless Voice), an Indian of the Saulteaux Nation in the peace of God and our said Sovereign the Queen, then and there, feloniously, willfully, and of his [A]26 malice aforethought, did make an assault, and that the said Capenesseweet, with the foresaid gun of the foresaid value, then and there loaded and charged with the foresaid & the same portion of gunpowder, and the foresaid and the same leaden bullet, which gun the said Capenesseweet in his hands then and there had and held to against and upon the said Apetwaywetungk, then and there feloniously, willfully and of his malice aforethought did shoot and discharge. And that the said Capenesseweet, with the leaden bullet aforesaid, out of the gun aforesaid, then and there, by force of the gunpowder, sent forth as aforesaid, the said Apetwaywetungk in and upon the left side of him, the said Apetwaywetungk, over the region of the heart of him, the said Apetwaywetungk, then and there feloniously, willfully, and of his malice aforethought, did strike, penetrate, and wound, giving to the said Apetwaywetungk, then and there, with the leaden bullet aforesaid, so as aforesaid discharged and sent forth out of the gun aforesaid by the said Capenesseweet in and upon the left side of him, the said Apetwaywetungk, over the region of the heart, one mortal wound reaching from the point of the side, where the bullet entered, to and through the breast of the said Apetwaywetungk, the foresaid bullet, after passing through and from the body of the [A]27 foresaid Tatungaokaysnay, having thereafter in its flight entered and passed through the body of the foresaid Apetwaywetungk Saulteaux. Of which said mortal wound the said Apetwaywetungk in the District aforesaid immediately did die. And so the Jurors aforesaid, upon their oath aforesaid, do say that the said Capenesseweet the said Apetwaywetungk, in manner and form aforesaid, feloniously, willfully, and of his malice afore-

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thought, did kill and murder, against the peace of the Queen, her Crown & dignity.”47 Mr. [Sheriff] Ross, being duly sworn, narrated to the Grand Jurors the substance of the declaration made on the first instant by the Prisoner Capenesseweet, sent before him and the other magistrates, deponing, inter alia, that in the said declaration the said Capenesseweet had voluntarily admitted that he had “done the deed” – in other words that he had fired the gun which killed the two Indians. The Grand Jury returned the foregoing as a True Bill &, the Prisoner Capenesseweet having been brought to the bar, the Indictment was read, being through the medium of Augustin Nolin interpreted into Indian,48 and the following persons sworn as [Petty] Jurymen to try him thereon, viz: Thomas Sinclair John Spence John Anderson Wm. Thomas Robert Sandeson Bte. Battoche

Bapte. Larocque Antoine Morin Alexis Goulait Augustin Nolin Pierre Boyer Pierre Pangman

[A]28 Thereafter, as witnesses for the Prosecution, Compeared John Cire of Red River Settlement who, being solemnly sworn on the Holy Evangelists,49 purged of malice and partial counsel, & interrogated, deponed: That on the morning of Sunday the thirty-first of August current, he attended the Catholic church. That he returned to his house at Lamalice’s Point. That he afterwards crossed the Assiniboine, and landed at the Fort side of the river at the same time with the party of Sioux – ten – who had been over at the Bishop’s.50 That on leaving the boat in which they crossed over, they proceeded towards the Fort, accompanied by a crowd of people, composed of Saulteaux, Halfbreeds and Whites, to the number of about, as the Deponent thought, one hundred and fifty, who had met the Indians at the river side. That in going up the bank the Deponent was close behind one of the Sioux. That an Indian boy was striking – not roughly – that Indian, the Sioux, with a bit of stick. That the Deponent pushed the boy aside. The Deponent lost about two paces, but immediately advanced to his former place beside the Sioux. ¶ That very shortly thereafter the Deponent was stunned by the report of a gun over his left shoulder, and on turning round observed the Indian Capenesseweet, whom he [A]29 identifies at the bar, retire two or three

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steps, and draw back the gun, and lay it over his left arm. That the Deponent saw distinctly the smoke of the discharge proceeding in the direction from the gun which he had observed Capenesseweet drawing back. That the moment after the shot was fired the Deponent saw the Sioux above referred to fall, partly on his knees and partly on the Deponent. That the Deponent saw a hole in the capot of the Sioux, and blood streaming from under him. That, almost instantly after the Sioux fell, the Deponent observed a Saulteau, who was among the crowd before him, put his hand on his side and call out in Indian: “I’m killed.” That the Saulteau staggered a little and then fell. ¶ That hearing someone call out to pursue the Indian Capenesseweet, the Deponent and some others ran after him.51 That the Deponent, P. Blondin, and Joseph Vivier overtook the Indian at the outer gate of the fence around the Fort. That Vivier asked the Indian to shew his gun. That at that instant the brother of Capenesseweet, who also carried a gun, came up and, lowering his gun a little, said: “Let my brother alone. It is not he who has killed the Indians.” That the Deponent and Vivier examined the gun,52 found it not loaded, and had the appearance of having been recently [A]30 discharged. That the Deponent charged Capenesseweet with having killed the Indians. That some Indian women who were beside him called out, denying that Capenesseweet had killed them. ¶ That the Deponent and the others then left the Indian and came back to the Fort, where they met Mr. [Cuthbert] Grant, who told him and some others to pursue & bring back the Indian Capenesseweet.53 That they went off and saw him at some distance from the place where they had met him before. That Wm. Pritchard took Capenesseweet’s gun from him, and Capenesseweet then walked off into the plains. That while the Deponent and the others were standing near the place where they had first met Capenesseweet at the outer fence, Thomas McDermot came up and said, pointing to Capenesseweet: “That’s the man,” and desired the Deponent to take a horse and gun and accompany him in pursuit of Capenesseweet. That the Deponent got a gun from Amos, and took a horse that was tied to the fencing, and set out. That they were joined by John Bourke, Irvine the tailor, and Toussaint Bonamies – all carrying guns and mounted on horseback. That they came up with the Indian Capenesseweet at the gate behind Mr. McDermot’s house. That McDermot & Bourke made him walk [A]31 on to the Fort before them. That the Deponent, Bonamies and Irvine turned round and went after the brother of Capenesseweet, who was with him. ¶ That when they came up to him the Deponent asked him where his gun was, and [he] at last told them that it was beside the fence, from whence he

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brought it, and also two small bundles. That they all then turned back to go to the Fort. That after proceeding some distance Capenesseweet’s brother threw down on the ground his capot, powder horn, and shot pouch, saying to them: “Kill me at once.” That they replied they did not wish to hurt him, and he then said: “If you do anything to my brother, kill me. We are three brothers, and we’ll all die together. We have no father, for the Siou killed him.” That they continued their march towards the Fort, and on coming up to the little knoll they saw that Capenesseweet, with McDermot, Bourke & others, had reached the Fort gate. That when at the knoll the Deponent’s party stopped, and Capenesseweet’s brother said to him: “If you do nothing to my brother I will give you two oxen, a cow, and a colt. These will pay for the Siou whom my brother has killed.” That they went on to the Fort and gave Capenesseweet’s brother into the gaoler’s custody. That the Deponent identified Capenesseweet as the Indian who had shot the Siou [A]32 and the Saulteau, by the following marks: the piece of beadwork on his breast, his red leggings, his white blanket, the balls in his hair, and also his general appearance. All which was truth, &c. Compeared also Margaret Pepin who, being duly sworn and interrogated, deponed: That she was among the crowd of people who accompanied the Sioux up the bank on the Sunday referred to by the preceding witness, but near the outside of the crowd. That Capenesseweet, whom she identified at the bar, was among the crowd also. That as they were proceeding towards the Fort, she saw the Indian Capenesseweet quietly fall back two or three steps after firing his gun – his gun, as he retreated, being over his left arm. That she saw the smoke of the discharge, and immediately saw a Siou fall. That after Capenesseweet had retired two or three steps, as above deponed, she saw him clear his way out of the crowd in the direction where the Deponent and her sister were standing, giving at the same time two whoops or yells. That the Deponent, as she saw Capenesseweet running away, pointed to him, saying: “That’s the man.” That she then heard that a Saulteau had also been killed, and that on going up she accordingly saw him lying on the ground, dead. All which was truth, &c. [A]33 Compeared also Rayome, an unbaptized Saulteau Indian, who, having been examined as to his belief in a future state of reward and punishment, and answered the questions put to him in such a manner as to satisfy the Court that he would tell the truth,54 deponed: That on the Sunday in question he was with the Sioux at the Bishop’s. That when they came down to the riverside to the boat in which the Sioux were to cross, the Chief “Terre Qui Brûle”55 told the Deponent to embark with them. That he did so. That he went up the bank with them towards the Fort. And that when a short distance from the gate, perhaps twenty yards, he heard the report of a gun, and

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saw a Siou and a Saulteau fall. That when the report of the gun was heard he looked round and saw Capenesseweet retiring slowly with his gun over his left arm. That the Deponent’s conviction was, when he observed Capenesseweet drawing back his gun and observed the smoke proceeding in the direction from it, that Capenesseweet had killed the two Indians. That the Deponent, when he saw that the Saulteau was shot, went across the river and told his friends that his brother, meaning the Saulteau, had fallen. Identified the Indian Capenesseweet at the bar, and knew him well. [A]34 Compeared also Alexander Ross Esq., who, being solemnly sworn, deponed: That on the first instant, when examined before him and the other magistrates as above deponed by the Deponent, Capenesseweet had stated: “I fired the gun. I did the deed, but was told to do so by the Chief called ‘the Black Robe,’ who told a number of us Saulteaux to kill the Sioux.” All which the Deponent declared to be the truth, &c.56 Mr. Thom summed up the evidence, and addressed the Jurors,57 who, after due deliberation, brought in a verdict finding Capenesseweet Guilty of the murder of Tungaokaysnay, the Siou, and Apetwaywetungk, the Saulteau. The Court thereafter, through Mr. Thom, pronounced against Capenesseweet the sentence of death, decreeing him to be hanged by the neck till he was dead on Saturday next, the sixth of August58 current, between the hours of eight and twelve in the morning. Commentary59 The Red River Settlement included, or was in frequent contact with, members of three major Indian nations: the Cree, whose territory it traditionally was; the Saulteaux, whom North West Company fur traders had encouraged to come to the area, and whose presence was still resented by the Cree, but with whom the Halfbreeds had considerable affinity; and the Sioux, whose normal domain was the prairie to the south and west of the settlement, who carried on a bitter buffalo-hunt rivalry with the Halfbreeds and Saulteaux, and who occasionally visited Red River out of curiosity or need. The Sioux-Halfbreed hostility, which had resulted in a series of mutually deadly encounters between 1840 and 1844, had been at least temporarily resolved by a remarkable 1845 Sioux-Halfbreed détente, in which the participation of the Saulteaux, if any, is unclear. It is understandable, therefore, that the community was very nervous when a party of ten Sioux – who came to Red River in peace not long after the conclusion of hostilities to formalize the accord – was fired upon by a Saulteau, killing both a visiting Sioux and, by accident, a resident Saulteau. The desirability of speedy action by the Red River justice system in order to avoid a collapse of the Sioux-

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Halfbreed treaty would have been evident to all. The alleged perpetrator, a Saulteau man called Capenesseweet, was accordingly pursued, arrested, and brought to trial four days after the shooting. For Cuthbert Grant, who was a member of the court, “Warden of the Plains,” and acknowledged leader of the Halfbreeds, the matter must have seemed especially urgent, since it was he who had signed, as chief of the Halfbreeds, the communication that brought about the rapprochement with the Sioux.60 Governor Alexander Christie assembled as many members of the Council of Assiniboia as could be gathered two days before the trial to discuss informally how best to handle the situation.61 Trial was not the only option. A seriously considered alternative approach was simply to hand Capenesseweet over to the Sioux “to be dealt with according to the capricious dictates of barbarian law.” After considerable discussion, that option was rejected unanimously. Some were concerned that it might have subjected the accused to “the most revolting tortures of a lingering death,” as opposed to “soothing his last hours into penitence and contrition through the ministrations of religion.”62 Others – Recorder Thom at least – opposed surrendering the accused simply because it would be “illegal ... [being] inconsistent with ... the principle of law.” “Another alternative” to either trying Capenesseweet or giving him to the Sioux was raised, according to Thom, by “one or two of our most respectable citizens” at the informal pre-trial conference: letting him go on the ground that “a savage ought not to be subjected to full penalties of a law which formed so different an estimate of homicide from ... [his].” This approach does not seem to have been a serious contender during the discussions, however. Thom found it “objectionable” both in its premise and in its conclusion. He denied that Aboriginals treated murder differently than Europeans, making the Old Testament–influenced observation that “[n] o nation ever more zealously embraced the divine law against murder – the law of blood for blood.” Moreover, he added, “Even if ... they practiced homicide as a religious duty, they would only stand in greater need of being imbued with better feelings by the terror of judicial retaliation.” His assembled councillors having agreed that Capenessweet must face the judicial process, Governor Christie had little doubt that a conviction and death sentence would follow, and so turned his attention, again in advance of the trial, to whether he should exercise the royal prerogative of mercy by either commuting the death sentence directly or suspending it pending a decision of the Governor and Committee in London. His decision was negative, and the jury was informed before its deliberations that there would be “no hope of mercy this side of the grave.”63 Foremost among Christie’s reasons for so deciding was “the strong probability of wholesale retaliation on the part of the Sioux ... should the Prisoner be reprieved.” Adam Thom’s report on the trial64 suggests the lines his charge to the petty jury probably took. It would first have outlined the facts of the killings as established by the evidence, but that would not likely have taken long since his report, strongly corroborated by the record, said the facts were “too clearly established to be doubted.” “Yet,” he continued, “the law seemed to involve two inquiries: first as to whether

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the homicide fell within our jurisdiction; and second as to whether the homicide amounted to murder.” The jurisdictional question concerned the authority of the Assiniboia court to try a crime committed by an Indian against other Indians. Thom began that part of his legal analysis by “[r]ecognizing the separate but subordinate nationality of the aboriginal tribes in its fullest extent.” That nationality, he acknowledged, permitted Indians “without violating our laws ... to carry fire and sword into the territory of a hostile tribe.”65 On the other hand, such immunity from legal sanction would not apply to crimes committed by Indians against “our own population ... who, if lawfully engaged, ... carry with them through the length and breadth of Rupert’s Land the protection of our own paramount nationality,” or even against other Indians “who have been received under our protection.” Thom ruled that Capenessweet’s actions brought him under the authority of English law in two respects: “the locality of the offence ... [and] the object of the attack”: “With regard to the locality of the offence, the crime was perpetrated not only within the ordinary range of our civilization, but at the very gate of our chief establishment, and in the very centre of our Settlement. With regard, again, to the object of the attack, the crime was directed chiefly against our own population ... [because] according to the proportional numbers of savages and settlers in the crowd, the second victim of the criminal’s reckless malice was more likely to be a settler than a savage.”66 The recorder could not resist concluding his report by remarking, in relation to these jurisdictional points, that it was “truly satisfactory to myself ... that I had anticipated nearly the whole of my foregoing views in February last, while explaining to the Grand Jury the nature and extent of our jurisdiction.”67 The second legal question Thom addressed – “whether the homicide amounted to murder” – involved Capenessweet’s defence, put in evidence by Sheriff Alexander Ross along with the accused’s confession to the killing, that he was just following the orders of Chief Black Robe. Although no effort to determine whether Black Robe did in fact issue the order appears to have been made, the recorder assumed, for the sake of his analysis, that it had. The substance of the defence – compulsion of orders from superior authority – was identical to that which would be raised close to a century later by American soldiers accused of the 1968 killing of civilians in the Vietnamese village of My Lai, and the outcome was the same: rejection of the defence.68 “This plea,” Thom wrote, “could avail him nothing” for two reasons. First, “[t]he Chief’s alleged command did not necessarily extend to what the follower ... performed ... for the ... exhortations might have contemplated secret slaughter beyond the ordinary range of our civilization, at a distance from our settlers; or might have contemplated open warfare.” Second, “even if the Chief’s ... exhortations had expressly contemplated what actually happened, his participation in the deed could neither justify nor excuse his follower ... [T]he whole force ... of the Chief’s supposed injunction could at most palliate only the slaughter of the Siou, but could have no bearing on the slaughter of the Saulteau ... In a word, therefore, the homicide of the Siou, and still more clearly that of the Saulteau, amounted to murder.”

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The overwhelming evidence and Adam Thom’s unequivocal instructions having left them no real choice, the jury lost little time finding Capenessweet guilty. Nor does the recorder seem to have hesitated before imposing the supreme penalty, although he noted that “the eyes of almost every judge [including Thom’s own?], as well as those of almost every juror, were suffused with tears.”69 Before the trial, and even before the preliminary conference with his Council of Assiniboia colleagues, Governor Alexander Christie had been faced with the problem of what to do about the Sioux visitors. Their continued presence raised an undoubted risk of further violence, either by them in reprisal, or on them by Capenessweet copycats; and Christie accordingly urged the delegation to be on their way quickly. Yet they had come to Fort Garry on a laudable mission – “settling all past differences, and ... once more renewing the often broken bond of peace.” Therefore, on the day after the killings, following the burial of the shooting victims, the visitors renewed their request to confer with representatives of the Halfbreeds and the Saulteaux, and there seemed no acceptable alternative but to concur. Ambassadors of the three Aboriginal peoples accordingly came together in high assembly under the governor’s watchful eye: “I permitted them to meet, and had the satisfaction of seeing the interview concluded by the most solemn protestations of pardon on the part of the Sioux, and of gratitude and friendship on the side of the Halfbreeds and the Saulteaux – the vows, as is usual on such occasions, being sealed by the exchange of presents, with materials for which the parties had been gratuitously supplied from our stores.”70 Still anxious to separate spark from tinder, Christie ensured that on the following day, after he met with his councillors, “the Sioux left us ... escorted by a hired party of twenty-three Halfbreeds, who conducted them safely to Pembina.” Alexander Ross said that Capenesseweet, being a Roman Catholic convert, “was regularly attended in his last hours by the Reverend Mr. Belcourt, a Catholic priest.”71 He also said that the hanging, on a gallows erected over the prison gate, was the first instance of the kind in Rupert’s Land, and that, although there were more than a thousand spectators for “this novel spectacle,” there were few Indians present, perhaps because of “the imposing appearance of 500 mounted cavalry, all armed.” The solemnity of the occasion made a powerful impression. During the grim proceedings, Ross tells us, “a voice was scarcely heard, and all parties left the ground in silence.” His account concluded with a justification: “Whatever the world may think or say of this act, any doubt or dissatisfaction that existed at the time arose from pity; the punishment, in the eyes of all present, was deemed just.” Dr John Bunn, noted for his humanity, was similarily minded: “[N]othing emanating from the Government [of Rupert’s Land] has ever been so unanimously deemed necessary and beneficial, or so cordially and universally supported by the inhabitants.”72 Of course, both Ross and Bunn were members of the government and the court that had determined Capenessweet’s fate. The stated date of the hanging, like the date of the trial, is mistaken. As explained above, the trial must have occurred on 4 September 1845. The hang-

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ing could not, therefore, have taken place on “Saturday, ... the sixth of August” as the record states. Besides, 6 August 1845 was not a Saturday, whereas 6 September 1845 was, and Ross confirms that Capenesseweet was executed that day. The General Quarterly Court and Recorder Adam Thom have sometimes been accused of exceeding their legal authority in ordering and carrying out the execution. It was asserted by opponents of the Hudson’s Bay Company during the 1857 enquiry of the Select Committee of the British House of Commons that the hanging of Capenessweet was unlawful because the court lacked the jurisdiction to impose capital punishment and was statutorily obliged to send cases for which the death penalty might be imposed to Canadian courts for trial.73 Although Colonel William B. Caldwell, who had been governor of Assiniboia from 1848 to 1855, testified that he had not known about any such restriction,74 the assertion was never directly refuted during the hearings, and it has been accepted by some modern historians.75 In fact, the allegation was mistaken. The jurisdiction with which the HBC charter clothed the governors and councils of the company “to judge all persons ... in all causes, whether civil or criminal, and to execute justice accordingly” was not subject to exceptions, and it had been previously exercised to impose capital punishment long before the Capenessweet case.76 The General Quarterly Court of Assiniboia was a court of the governor and council under the charter. No statute applicable to that court existed that deprived it of the power to impose capital punishment. There was, to be sure, a statute that required certain capital and other very serious cases from Rupert’s Land to be remitted to the courts of Upper Canada; but that statute did not apply to the General Quarterly Court of Assiniboia. The statute in question was the Fur Trade Regulation Act of 1821,77 which made provision in sections 10 and 11 for the appointment of justices of the peace for areas that included the HBC lands. Any three such justices could constitute a court of record to hear civil and criminal cases locally. Section 13 of that act stipulated that such courts could hear neither criminal cases calling for the death penalty or transportation (exile) to penal colonies abroad nor civil cases over £200 in value. Such courts were required to remit all such cases to Upper Canada. Such courts were never created, however.78 Moreover, the same statute reaffirmed the charter jurisdiction of company authorities in its final section,79 adding, “anything in this Act to the contrary notwithstanding.” Those who mistakenly alleged at the 1857 Select Committee hearings that the Assiniboia court could not lawfully impose capital punishment might be forgiven for thinking so. The drafting of the 1821 statute was so intricate and convoluted that no one but a lawyer with strong powers of concentration could be expected to make sense of it. The fact that the first person hanged at Red River was Aboriginal has also been the subject of critical comment. To what extent, if any, did racial factors play a role in the decision to carry out the sentence of death? That question does not lend itself to an indisputable answer. Elements to be borne in mind when addressing it include the following:

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(a) The evidence of guilt was overwhelming.80 (b) This was the first conviction of anyone for murder in Assiniboia, the Beardie case in 1839 (See vol. 1, 60) involving an acquittal of alleged manslaughter by a child, and the verdict in the Keetchipiwaipasse case being ultimately for assault only.81 Both Beardie and Keetchipiwaipasse appear to have been Indians. (c) The sentence in the Keetchipiwaipasse case was quite lenient. (d) The members of the court, and of the jury, in the present case included a majority of Halfbreeds, the segment of Red River’s population most sympathetic as a group to the Saulteaux. (e) At least one of the options for dealing with the situation that the settlement authorities considered and rejected in the present case – delivering the accused to the Sioux – would likely have resulted in more barbaric treatment of him than he received from the court and the hangman. (f) The settlement faced a threat of imminent danger if the murder was not dealt with to the satisfaction of the Sioux; and even mature legal systems have been known to take account of such “survival factors.”82 [A]35

General Quarterly Court Twenty-first August, One Thousand Eight Hundred and Forty-five Present: Alexander Christie Adam Thom John Bunn Alexander Ross Geo. M. Carey Cuthbert Grant

Esquire “ “ “ “ “

Andrew McDermot vs. Saml. Hughes [Case 7] [Debt – Dishonoured Bill of Exchange] A Petty Jury being duly empanelled, viz: [Jury members not listed] The Plaintiff appeared, and stated that he had brought this action for the recovery of the sum of fifty pounds stg. due to him by the Plaintiff [sic: Defendant?] for goods delivered in the autumn of 1844. The Plaintiff also produced the order, a draft of which the following is a copy:

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“£50.00.00 To the gentleman in charge at Fort Garry Sir: On or before the 10th of June next please pay Andw. McDermot the sum of fifty pounds sterling, and please to charge the same to acct. of Your Obedt. Servant: Witnesses (sd.) Mary McDermot his his Charles X NcNab (sd.) Samuel X Hughes mark mark Sept. 7th 1844”83 [A]36 stating that the order had not been paid by the Hudson’s Bay Company at Fort Garry in consequence of the Defendant having given it to be understood there that he denied the debt. The Defendant stated that it was his uncle Laframboise, who had received the goods for which the note was granted, and that he, the Defendant, had undertaken to pay the debt only in the event of his uncle dying on the voyage. As witnesses for the Plaintiff: Compeared Miss Mary McDermot who, being duly sworn and interrogated, deponed: That on the day the Defendant and his uncle got the goods, she heard Charles McNab, one of the attesting witnesses to the order, explain to the Defendant the value of the order, stating clearly that it bound him to pay the Plaintiff the sum of fifty pounds by the tenth of June following; And that the Defendant appeared to understand his obligation perfectly. All which was truth, &c. Compeared also Louis Benard who, being duly sworn and interrogated, deponed: That last autumn the Defendant slept a night at his house, and that he had a considerable quantity of goods with him. The Jury found the Defendant liable to the Plaintiff for the amount of the order – being fifty pounds – and costs of [A]37 suit. And the Court decerned accordingly. Commentary Rupert’s Land’s Currency This case offers a glimpse of Rupert’s Land’s rudimentary monetary system, and provides a convenient opportunity to discuss other aspects of that system that will arise in subsequent cases. While English money and other currencies did circulate in

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small quantities in the Hudson’s Bay Company (HBC) territories, the most common forms of tender were bills of exchange and other negotiable instruments. The document upon which this action was based was a bill of exchange (also called an order, draft, or note) drawn upon the HBC by Samuel Hughes in favour of Andrew McDermot. Its legal effect was to request a payment of £50 to McDermot by the company, which the document implied either held money belonging to Hughes in an account or owed him money. A bill of exchange is a negotiable instrument, which means that it can be transferred (“negotiated”) to third parties who, if they give value for it and are unaware of any illegality associated with it, acquire an absolute right to be paid its face value, regardless of any defence the drawer might have had against the original payee. It can thus pass from hand to hand, like money. A cheque is a bill of exchange drawn on a bank; and although the Hudson’s Bay Company was not a bank in the formal sense, it was effectively such for many residents of Rupert’s Land during the time covered by the court records. Those who dealt with the company maintained accounts with it and often, as in this case, drew upon their accounts in favour of third parties, much as a bank customer would draw a cheque on his or her bank account. Hughes’s instruction to the Hudson’s Bay Company not to pay McDermot was the equivalent of a stop-payment order to a bank on a cheque. Although that instruction terminated the HBC’s authority to pay McDermot, Hughes remained liable to McDermot under the terms of the original contract, and the court obviously did not accept his claim that the original contract was contingent upon his uncle’s death. A third form of negotiable instrument is called a promissory note. This is a written promise to pay a certain amount of money by a certain time. Promissory notes can also pass from hand to hand like money. The Hudson’s Bay Company issued such notes in fixed denominations in payment for services and commodities, thus creating a quasi currency for Rupert’s Land. John McLaughlin, in his testimony before the 1857 Select Committee enquiry into HBC governance, explained the system, as well as the way it permitted the company, on occasion, to exert pressure on residents of Rupert’s Land: 4969. Was the trade in the Red River Settlement like that of the Indian country, one exclusively of barter? – No, they had a paper currency. 4970. Will you describe of what sort it was? – They had a currency of a most peculiar character: the bills were from shillings to a pound; they were at 60 days after date, if I am not mistaken, and were payable on the [Hudson Bay] coast nearly 800 miles from Red River, or in London. The fact of the matter is that in one or two instances the Hudson’s Bay Company threatened to withdraw these notes from circulation. 4971. Was that in times of excitement? – In the times of excitement.

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4972. With a view to putting down the excitement which existed? – With a view to preventing trafficking in furs and trading. 4973. Was there an objection raised to that currency which was employed in the Settlement? – A very great objection on that very account, that bills of exchange had been refused to several of the parties who had been trading in furs, and also a premium of 5 percent had been placed on bills of exchange upon goods going to the United States.84 A Case Refused According to the court record, which documents only the foregoing routine commercial dispute, this sitting of the court was quite uneventful. It appears, however, that much more dramatic litigation, involving prominent independent entrepreneurs James Sinclair and Andrew McDermot, the Hudson’s Bay Company, and indirectly Governor-in-Chief Sir George Simpson, barely avoided exposure in the courtroom that day. Simpson alluded to the episode in a letter to London shortly after returning to his Lachine headquarters the following month: When at Red River last summer I found I was legally disqualified at a Court for the District of Assiniboia in the case of a claim brought against the Company by James Sinclair, in consequence of being a holder of Hudson’s Bay stock, & thereby a party interested; and that Mr. Christie was from the same cause (that is, being a party interested in the fur trade) also unable to preside; placing the Court in a very awkward position as, there being no persons in the country duly authorized by the Company to preside, it is under existing circumstances incompetent to try any cause in which the Company is interested, either as plaintiff or defendant.85 Simpson went on to request that “[i]n order to remove this disqualification on my part, I beg you will take the earliest favourable opportunity of selling the stock standing in my name” unless the governor and council should “recommend any other course to remove the disqualification.” The incident was referred to, almost a dozen years later, at the hearings of the 1857 parliamentary Select Committee by the same witness, John McLaughlin, whose evidence about the company’s bills of exchange was quoted above. McLaughlin’s version adds some details, disclosing, among other things, that the trader Andrew McDermot was also involved as a potential plaintiff, that the dispute was eventually settled, and that McLaughlin himself played a role in the settlement process: “There was a dispute between the Governor and some of the settlers, and on the settlers’ seeking justice the Governor said that he thought the authorities on the spot were not competent to decide it.”86 He then explained that the dispute had concerned alleged underpayment by the company for transportation services provided by Sinclair and

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McDermot between Red River and York Factory. Their attempt to sue in the Quarterly Court for what they said they were owed was, he said, made and rejected on 22 July 1845, a month before the August court sitting. This would explain why the court records are silent on the subject. After the refusal of the Assiniboia court to entertain their claim, McLaughlin said, he carried it, on behalf of the plaintiffs, first to Canada and then to England, where it was eventually settled by the company’s agreement to pay an additional sum to Sinclair and McDermot.87 Several questions arise. Whose idea was it that this uncomfortable lawsuit could be dodged by ruling that, since both governors were disqualified from sitting by reason of their personal interest, the HBC charter’s requirement that every court must include a governor in its number could not be met? The most obvious likely deviser of the idea would be the devious Recorder Adam Thom. Were Simpson’s shares in the company actually sold as requested? The need for someone to adjudicate the Sinclair-McDermot claim was eventually obviated by settlement of the claim, of course; and the fact that, according to the court records, Sir George never did sit on the court might suggest that the drastic measure he proposed was never taken. Nor did anyone with a known proprietary involvement with the HBC ever sit on the bench in any future case involving company interests. A more important question is whether it was only the ownership of HBC shares that disqualified someone from sitting on the court – or whether simply being in the company’s employ also amounted to a disqualifying interest. Although that question would never be answered definitively, it would, less than four years later, bring tumult to the Red River courthouse over an attempt to enforce the company’s alleged fur trade monopoly in the General Court when at least three people on the HBC payroll – Recorder Adam Thom, Dr John Bunn, and Warden of the Plains Cuthbert Grant – were members of the court.88 [A]38

General Quarterly Court Twentieth November, One Thousand Eight Hundred and Forty-five Present: Alexander Christie Esquire Adam Thom “ James Bird “ Alexander Ross “ George M. Carey “ Cuthbert Grant “

The Public Interest vs. Newkesequeskik 89 [Case 8] [Murder]

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A Grand Jury having been duly sworn, they proceeded to collect such evidence as appeared to be necessary, and afterwards returned the following as a True Bill, viz: “District of Assiniboia, Rupert’s Land, to wit: The Jurors for the Queen, upon their oath, present that: Newkewekqueskik, an Indian of the Saulteaux Nation within the limits of Red River Settlement, in the District aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the 28th day of October in the ninth year of the reign of our Sovereign Victoria, with force and arms, in the District aforesaid, in and upon one Sakutchywaiskung, an Indian of the Saulteaux Nation in the peace of God and our said Sovereign the Queen, then and there, feloniously, willfully, and of his malice aforethought, did make an assault. And that the [A]39 said Newkesekquaiskik, with a certain knife of the value of one shilling,90 which in his right hand he then and there had and held, the said Newkesekqueskik, in and upon the left breast of him, the said Sakutchywaiskung, then and there, feloniously, willfully, and of his malice aforethought, did strike and thrust, giving to the said Sakutchywaiskung, then and there, with the knife aforesaid, in and upon the said left breast, one mortal wound of the breadth of three inches, of which said mortal wound the said Sakutchywaiskung, on the said 28th day of the said month of October in the year aforesaid and District aforesaid, died. And so the Jurors aforesaid, upon their oath aforesaid, do say that the said Newkesekqueskik the said Sakutchywaiskung, in manner and form aforesaid, feloniously, willfully, and of his malice aforethought, did kill and Murder, against the peace of the Queen, her Crown and dignity.” The following were empanelled as a Jury to try Newkesekqueskik thereon, viz: F. M. Dease André Goudrie Pierre Benard Dominique Ducharme Dun. McDougal Augustin Nolin Louis Galarneau Alban Fidler Vital Turcotte John Fowlis J. Bte. Brasconnier J. Bte. Boucher Newkesekqueskik was brought to the bar and the Indictment read, Louis Ploofe acting under oath as Interpreter. Thereafter, as witnesses: Compeared James Smith, alias Lacord, a Saulteau [A]40 Indian, and brother of the Deceased, & who, being interrogated, deponed: That on the night of the twenty-seventh of October last he and his brother slept in

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the same tent together. That on the following morning his brother went to an adjoining tent belonging to Kitipewaise, having previously desired him, Newkesekqueskik, to cook a dog. He soon returned, and, seeing Newkesekqueskik employed in singeing the dog, the Deponent’s brother angrily enquired why he had been so long in preparing the dog. That Newkesekqueskik made no reply, and afterwards said he had no time. That the Deceased, Sakutchywaiskung, there sat down and began to scold Newkesekqueskik about the dog – does not know what he said in reply. ¶ That the Deceased then took up Newkesekqueskik’s gun, broke it, and threw the barrel down, remarking that he was never afraid of anything. That the Deponent picked up the barrel and began to draw the shot. That while the Deponent was thus employed, Sakutchywaiskung kicked the Prisoner, Newkesekqueskik, and said: “I have a mind to hammer you, you little dog.” That Newkeskqueskik did not seem to regard the kick, for he continued to work at the dog. ¶ That a few minutes afterwards Newkeskqueskik arose, and the Deponent, observing a knife in his hand, wrenched it from him, [A]41 thinking he intended to use it in consequence of the treatment he had received. That the Deponent threw the knife out of the tent, and on turning round saw both the Deceased and Newkesekqueskik standing, but while Deponent was going across the tent, the Deceased fell. That the Deponent immediately drew him towards the fire and, observing a wound on the breast, said to Newkeskqueskik: “You have stabbed him.” ¶ That there were only four persons in the tent during the quarrel: the Deceased & his wife, the Deponent, & Newkeskqueskik. That the Deponent did not see Newkeskqueskik stab the Deceased; neither did he hear any groan or cry. That the wound was inflicted about nine o’clock a.m., and the Deceased died in the evening. That during the day the Deceased spoke frequently of his children, but never alluded to Newkesqueskik. That the Deceased was of a hasty temper & quarrelsome, and frequently disagreed with Newkesekqueskik. All which was truth, as the Deponent should answer to God. Compeared also Petâpit, wife of Sakutchywaiskung, who, being interrogated, deponed: That her husband died because, as she believes, he was stabbed. Thinks the Prisoner stabbed him, but cannot tell why she thinks so. That she knew there was a quarrel between them. All [A]42 which she deponed to be truth. Compeared also Straightback, alias Tinsmith, an Indian, who, being interrogated, deponed: That while he was sitting in his tent on a

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Tuesday morning, the morning of the day that the Indian was wounded, the wife of the Deceased came to him and said: “My husband is stabbed – his youngest brother has stabbed him.” That she then gave the Deponent a piece of cloth, and begged him to do something for her husband. That the Deponent, taking up his medicine-bag, followed her to the tent, where he found the Deceased lying insensible. But, having recovered a little, he took some medicine, and enquired of Deponent who had stabbed him. That while Deponent was present the Deceased did not say a word respecting his brothers; but frequently referred to the destitute condition in which he should leave his family. All which was truth, &c. Compeared also Augustin Nolin,91 who, being duly sworn and interrogated, deponed: That from long experience he is well acquainted with the habits & dispositions of Indians. That he knows they will often conceal their feelings under circumstances where Europeans would be most likely to shew them. That although, after receiving an injury or insult, an Indian may not at the moment express any resentment – although he may even make professions of friendship and appear to have forgiven the offence – yet [A]43 in his own heart he may all the while be vowing vengeance against his offender, and resolving even to take his life the moment it was in his power. All which was truth as the Deponent should answer to God. Mr. Thom summed up the evidence, and [after his] having charged the Jury, they, after due deliberation, brought in a verdict of manslaughter against Newkesekqueskik, who was thereafter sentenced by the Court to twelve months’ solitary imprisonment from this date.

The Public Interest vs. James Anderson Sr. [Case 9] [Selling Beer to Indians] The following Jury were duly empanelled, viz: Donald McDonald (Little) John Tait Alexander Work Wm. R. Smith Narcisse Marion James McKay Joseph Bird Thos. Sinclair William Taylor Saml. Henderson John Vincent Frans. Bruneau John Mowat, a constable, appeared, and stated:92 That Donald Gunn told him that Indians were drinking beer a little below the schoolhouse. That Donald McDonald, the Constable, accompanied the Declarant to the tent where the Indians were drinking. That one of [A]44 them told the

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Declarant and Dond. McDonald that James Anderson Senr. had supplied the beer. That the Declarant carried home the keg, and that next day James Anderson Sr. came and claimed it as his. James Anderson admitted that he had given beer to Lacord, the “Star’s Son,” and another Indian, under the impression that they were, as they represented themselves, Donald Murray’s boatmen going home, and supposing also that they were Halfbreeds. Did not think that he was breaking any law. Got a shirt and half a pound of tea for the beer. As a witness: Compeared Lacord the Indian who, being examined, deponed:93 That twice last summer he had been at James Anderson’s house. The first time [was] with Indians who went thither to buy beer, and the second time [was] with his Deceased brother and the Star’s Son. That on the first occasion, he cannot say whether James Anderson supplied any beer, the Deponent having gone away and left the others at his house. But the second time they got a keg of beer, an eight gallon keg, for which his brother gave James Anderson a pair of Indian stockings, powder and shot, and for which also the Star’s Son gave a shirt and a cotton handkf., both of which he cast off his own person. That before they had got the keg of beer they had been drinking about two kettles full of beer in Anderson’s house, for which they gave [A]45 half a pound of tea, half a yard of tobacco, and a cotton handkerchief. The Jury found James Anderson Guilty of the offence of selling beer to Indians, and the Court ordained him to pay a penalty of two pounds stg., the penalty of five pounds imposed by the new regulations being in the case so modified, in consideration of the new rules not having yet been promulgated. Commentary Drunkenness was a major social concern at Red River throughout the period covered by the court records. Although it was a problem that plagued all segments of the community, the laws that addressed it were primarily aimed, especially at this stage,94 at preventing Indians’ access to liquor. The 1841 consolidation of the Laws of Assiniboia95 included a group of prohibitions entitled “Intoxicating Indians” that appeared to be quite stringent. Penalties, in the form of both fines and disqualification from public office, were imposed on anyone who provided an intoxicating substance to an Indian, or to anyone who subsequently passed it on to an Indian, even if the supplier was “in ignorance as to its unlawful destination.” To encourage informers, “the whole of the pecuniary

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penalty [was] to go to the Prosecutor.” The Indian in question, who, as in this case, could also be the prosecutor and thus collect the fine imposed on his supplier, was also entitled to be repaid the price of the liquor by his supplier. Strict though they seemed, these laws were considered to be ineffective, and so, on 9 June 1845, the Council of Assiniboia replaced them with a more severe – and much more complex – set of laws.96 These were the “new regulations” referred to in the record of the Anderson case. The new laws opened with a typically Thomian preamble: “Whereas by reason of the interested reluctance of the Indians, and the mistaken delicacy of the settlers, the law is found to be, in great measure, inoperative for want of evidence.” And they not only increased the fines, but also imposed a number of evidentiary presumptions and other brutal legal expedients that would instantly bleach the hair of a modern civil libertarian. For example, •

•

•

An Indian found to be inebriated must either provide two sureties to guarantee his future sobriety or be imprisoned indefinitely “till he prosecute the party guilty of furnishing the means of intoxication” (no. 13). Alleged suppliers could be convicted “without establishing any individual offence,” on the basis of a “general habit of violating the law” (no. 16). “[A]ny reputed Indian ... shall be held to be a real Indian to the utter exclusion of any evidence of parentage or descent” (no. 19).

At a time when no printing press existed at Red River,97 and illiteracy was widespread in any event, it was difficult to ensure that the community heard about, and understood, newly enacted laws. The 1841 consolidation dealt with the problem as follows: “Publication: That no person may plead ignorance of these regulations, at least eight copies shall be fixed on pasteboard or wood, and distributed over the Settlement among such of the inhabitants as may be willing to take charge of them for the seasonable inspection of the public.”98 The new 1845 laws carried their own more elaborate publication requirements: “Whereas the publication and explanation of these resolutions are highly expedient, it is resolved ... that one placarded copy be suspended in the courthouse, and another in the office of Upper Fort Garry”; that copies be held by the governor, recorder, magistrates, police, the clerk of the court, and the clergy; “and, lastly, that copies, in both languages, be read aloud and explained at the meetings of the General Court in November and February of each year, and at such other meetings as the Governor may select for that purpose.”99 It was apparently because the latter promulgation arrangements had not been carried out by the time of his offence that James Anderson was given the benefit of the old, lower, fine. [A]46

General Quarterly Court Nineteenth February, One Thousand Eight Hundred and Forty-six

General Quarterly Court of Assiniboia Records, 1844–48

Present: Alexander Christie Adam Thom James Bird Alexander Ross John Bunn George M. Carey

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Esq. “ “ “ “ “

The Public Interest vs. Peter Hayden [Case 10] [Manslaughter] The following was returned as a True Bill by a Grand Jury: “District of Assiniboia, Rupert’s Land, to wit: The Jurors for the Queen, upon their oath, present that: Peter Hayden, of Red River Settlement in the District aforesaid, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the twenty-seventh day of January in the ninth year of the reign of our Sovereign Victoria, with force and arms, in the District aforesaid, in and upon one John Gobin, in the peace of God and the Queen then and there being, feloniously and willfully did make an assault. And that the said Peter Hayden a certain pistol, of the value of forty shillings,100 then and there loaded and charged with gunpowder and a leaden bullet, which pistol the said Peter Hayden [A]47 in his hands then and there held to, against, and upon the said John Gobin, feloniously and willfully did shoot and discharge. And that the said Peter Hayden, with the leaden bullet aforesaid, in and upon the left temple and about half an inch above the left ear of him, the said John Gobin, then and there feloniously and willfully did strike, penetrate and wound, giving to the said John Gobin, with the leaden bullet aforesaid, so as aforesaid discharged out of the said pistol by the said Peter Hayden, in and upon the left temple of him, the said John Gobin, one mortal wound of the depth of one inch, of which mortal wound the said John Gobin, on the foresaid twentyseventh day of the said month of January in the year foresaid, did die. And so the Jurors aforesaid, upon their oath, do say that the said Peter Hayden feloniously and willfully did kill the said John Gobin, against the peace of the Queen, her Crown and dignity.” And Peter Hayden, being brought to the bar, and having pled Guilty to the charge, he was sentenced by the Court to pay a fine of one shilling, and to give security for his good behaviour for the next two years, himself for fifty pounds and two responsible sureties in twenty-five pounds each. And accordingly Peter Hayden, Thomas Logan, and Charles Larance appeared

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in open court & bound themselves for Peter Hayden’s good behaviour for two years, under the foregoing respective penalties. Commentary This remarkable judgment – a 1 shilling fine for culpable homicide – begs a fuller explanation. Although the particular category of homicide involved in the case was not stated, it can be inferred from the absence of the expression “with malice aforethought” in the indictment (in contrast to the indictments in the Keetchipiwaipasse and Capenessweet cases, at pages [A]11 and [A]23 respectively) that the charge was manslaughter rather than murder. But knowing that Peter Hayden was charged with manslaughter doesn’t tell us much, since that crime has wide parameters, embracing unintentional homicide committed under the influence of powerful provocation, while perpetrating some other crime, or as a result of gross negligence. What was the case here? And why was the punishment so lenient? The decision invites comparison with that in the Newkesqueskik case ([A]38), dealt with at the previous sitting of the court, in which the punishment was twelve months’ solitary confinement for manslaughter committed in response to serious provocation. In the absence of any reference in the court record to the circumstances in which this shooting occurred, a wide range of speculative explanations might suggest themselves. Perhaps there was provocation much more severe than in the Newkesqueskik case. Possibly, John Gobin challenged Hayden to a duel. On the other hand, one might plausibly hypothesize that the differing races and social strata of Hayden and Newkesqueskik distinguished the cases, Hayden being a fairly prominent white trader, several rungs above Newkesqueskik on Red River’s social ladder. Sentencing differences between Aboriginals and others were certainly not unheard of in the settlement. There was, for example, a provision of the new laws concerning intoxicating of Indians, enacted the previous June by the Council of Assiniboia, that authorized the imprisonment of Indians convicted of offences for which nonIndians could only be fined.101 The foregoing speculation – other than that this was a manslaughter case – is belied, however, by an account of the incident found in the journal of Peter Hayden’s friend and fellow free trader Peter Garrioch. The story begins with the Hudson’s Bay Company’s zealous efforts to enforce its asserted trade monopoly in the year or two preceding the shooting. At the company’s insistence, law enforcement officials, headed by Sheriff Alexander Ross and Warden of the Plains Cuthbert Grant, were putting pressure on free traders.102 Furs were being confiscated. More stringent import laws had been enacted by the Council of Assiniboia. In April 1845, Garrioch’s journal tells us, a group of five free traders, Garrioch and Hayden included, formed an alliance to resist these measures: “Five of our party ... have mutually pledged ourselves to each other, on our word of honour,

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not to yield to the above requisition of the Council, unless compelled by superior coercive forces.”103 In early May 1845 that group, with one or two additional members, prepared and signed a petition to the Council of Assiniboia requesting relief from the duty on imports from the United States. According to Garrioch, Peter Hayden “handed in” the petition to company authorities on 9 May, and met with Governor Christie to discuss it on 13 May. Apparently, the governor assured Hayden that changes in the law could be expected, and the group accordingly sent Christie a letter of gratitude. On 19 June the council modified its import duty laws, making certain concessions to “any British subject, being an actual settler, and not being a public defaulter.” In spite of that relief, however, the company continued its pressure on every trader thought to be dealing in furs, and by January 1846 tensions in the settlement were again very high. Peter Garrioch’s journal entry for 27 January 1846 is startling: Peter Hayden accidentally shot a boy about twelve o’clock today. This boy, who is now no more, was the son of Goubah, late of this Colony, but now residing at St. Peter’s, whom he had left in the care of Peter Hayden. The accident was brought about under the following circumstances, if I am rightly informed. Peter Hayden was on the point of riding out, when some person came in and told him that Mr. Grant was on his way down to rob him, and that it would therefore be advisable for him to remain at home. Fired at the intelligence, he, Peter Hayden, took the advice suggested and went in to prepare himself for the reception of Mr. Grant; or, in other words, for the defence of his own property.104 “Mr. Grant” was undoubtedly Warden of the Plains Cuthbert Grant, and the statement that Grant was reported to be on his way “to rob him” must have referred to an anticipated official fur-confiscation raid. Garrioch continued, “With this in view, he took out his revolving pistol and commenced setting it in order, when, awful to relate, he inadvertently discharged one of the barrels at the juncture when the poor boy was passing between him and the wall, in the direction of the pistol so discharged. The ball, it is stated, passed through the temples of the lad, and he survived but a few moments after it. Poor Hayden! No wonder, as I am told, that he attempted to lay violent hands on himself.” Two days later, Garrioch recorded, “I was informed yesterday that poor Peter Hayden is crazy. I hope the report is not true,” but on 30 January he wrote, “Heard that P. Hayden is out of the prison. I hope so.” The day after that, 1 February, a large protest meeting was held on the premises of Andrew McDermot, the dean of the settlement’s independent businessmen. The mood was angry, and some of the participants apparently advocated violence. However, Father Georges Belcourt, a loyal friend of the many Halfbreeds present at

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the meeting, counselled against unlawful conduct, and persuaded the protesters to channel their objections into a petition to be presented to British authorities. Peter Garrioch attended that meeting. He recorded in his journal sometime later, without comment, that the Reverend William Cockran had told him he had heard that one of the proposals made to the protest meeting had been “[t]hat Peter Hayden, then a prisoner, should be taken out of the jail by force.” Garrioch also attended the court hearing, and wrote afterward, “[G]lad I am to note down in my day book ... that Peter Hayden had a regular trial [on a charge he described as ‘manslaughter’] and is discharged.” It may or may not be significant that Cuthbert Grant was absent from his accustomed place on the bench when the Hayden case was heard. Even after learning the circumstances of young Gobin’s tragic death, we are left with the question we began with: why was Peter Hayden subjected to such an astonishingly mild penalty for an offence that, to constitute manslaughter, must at least have involved his grossly negligent handling of a firearm? There can be little doubt that what would today be called a plea bargain was arranged in advance. And it seems equally probable that the prosecution’s agreement at that time to so mild a punishment was influenced by such factors as the following: the likely sympathy for Hayden of any jury that might be chosen; the known opposition of several court members to the HBC’s harassment of free traders; an uncomfortable consciousness that the accidental shooting was an indirect consequence of those actions; an awareness by at least Recorder Thom and Governor Christie that the asserted HBC trade monopoly upon which the actions were sought to be justified was of questionable legality; and a realization, based on the recent protest meeting at Andrew McDermot’s home, that a harsh punishment could provoke a violent response by a substantial number of angry settlers. Settlement authorities felt no such compunction, less than two years later, however, when they mounted what a modern observer would call a concerted and successful “sting operation” against Hayden for several violations of Assiniboia’s convoluted whiskey laws.105 [A]48

The Public Interest vs. Charles Desmanais [Case 11] [Selling Beer to Indian] Charles Desmanais was accused of selling beer to an Indian on or about the fourteenth of January last, but, it having appeared from the declaration of the Indian, called The Catfish, to whom he was alleged to have sold the beer, that the Indian took it in Desmanais’s absence, the case was dismissed.

Antoine Morin vs. François Richard [Case 12] [Ownership of a Horse]

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A jury having been duly empanelled, the Plaintiff appeared, and stated: That the Defendant was in possession of a horse, rising two years old, which belonged to him, the Plaintiff. That the Defendant refused to deliver up the animal, alleging that it was his own. The Plaintiff farther stated that the horse in question had strayed into the plains last spring, and that he had neither heard of nor seen it till last Christmas, when it was found by the Defendant. The Defendant claimed, and kept, the horse as his, stating to the Court: That when a colt it was given him as a present by George Sinclair. That it had gone away last spring. And that he found it about Christmas, and [A]49 was sure it was his from its appearance. As witnesses for the Plaintiff: There then compeared the following persons, viz: François Bruneau, Benjamin Larjemonière, Dominique Ducharme, Urbain Berrgault, Bte. Perrault, Bte. Larance, Paispère Ducharme, Norbert Perrault, Edward Perrault, and Louis Blondin, who, being all successively sworn & interrogated, deponed that they had seen the horse in question while it was in the Plaintiff’s possession, and also seen it since it was found, and that on again examining the animal, as it stood at the courthouse door, they identified it by various marks as the Plaintiff’s horse. The Defendant then brought forward the following witnesses, viz: John Johnstone, James Johnstone, George Whitford, James Richard, Thomas Cook, and John Thomas, who severally deponed under oath that, by various marks, they each identified the horse in question as the Defendant’s. The Jury, after long deliberation and minute inspection of the horse, found that it was the Plaintiff’s, and the Court accordingly ordained the Defendant to deliver it up, and also to pay the costs of suit. [A]50

General Quarterly Court Twenty-first May, One Thousand Eight Hundred and Forty-six Present: Alexander Christie Esq.

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Adam Thom James Bird Alexander Ross John Bunn Geo. M. Carey Cuthbert Grant

“ “ “ “ “ “

The Public Interest vs. Alexander Dahl [Case 13] [Criminal Conversation]106 The following Jury having been empanelled, viz: John Inkster Donald Bannerman Antoine Grouette James Fraser George Groat James Bruce James Monkman Thomas Firth Angus Matheson Alban Fidler Alexander Bannerman Morrison McBeath John Folster appeared, and stated that Alexr. Dahl had been guilty of Crim. Con.107 with his wife, as related in Mr. [Magistrate] Bird’s intimation of the case, of which the following is a copy, viz: “Mr. Black108 Sir: I have to acquaint you that at the approaching General Court, John Folster proposes [A]51 prosecuting criminally Alexander Dahl for criminal connection with his wife, of which she will attend at the Court to give her evidence.” “¶ She is of the very lowest grade of human intelligence, and does not, I think, possess the reasoning faculty at all. She however hears when very loudly spoken to, and can answer simple definite questions when clearly put to her, so as to be understood by those accustomed to her imperfect intonation. She recognizes, and can name, persons she has been accustomed to see, and has a sufficient degree of memory to refer to past events by noting the season, or any remarkable occurrence connected with it, when they happened; but has not the smallest idea of the common artificial divisions of time. She has been baptized, but does not appear to have any conception of religion at all.” “¶ This woman, then, such as I have described her, came before me on the twenty-fourth of April last, accompanied by Charles Haywood’s wife as interpreter, and said, through her, and as I understood myself, that

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Alexander Dahl is the father of the child of which she is now pregnant. She declares that in the early part of September last, in harvest time, when she was sitting in her house, and her husband was cutting wheat in his field, the said Alexander Dahl came into the house, threw her on the children’s bed at the foot of her own bed, and thereon had carnal knowledge of her; that a day or two after he, the said Dahl, came again into her house, seized her as before mentioned, and on the same bed again had carnal connection with her. And that this spring, when a little of the snow was melted, she was stirring soap in her house whilst [A]52 her husband was gone out to feed his cattle, the said Alexander Dahl came again into the house, seized her as before, and in spite of all the resistance she could make – which prevented his getting her to the bed – threw her down on some boxes that were in the room, and had a third time his will with her.” “(signed) Jas. Bird J.P.109

May 13th 1845.”110

He also produced the [Marriage] Certificate of which the following is a copy, viz: “This is to certify that John Folster of Red River Colony and Janet Folster of the same place were married at their own house, with consent of parties, this fifth day of January in the year One Thousand Eight Hundred and Twenty-four by me, David Jones, Asst. Chaplain. This marriage was solemnized between us: Folster111

John Janet Folster by X

M.112 in the presence of:

James Livingston X Wm. Tait X

Transcribed from the Marriage Register of the Upper Church, page 25, No. 72 (signed) Wm. Cockran”113 As witnesses for the Prosecution: Compeared Wm. Folster who, being duly sworn and interrogated, deponed: That one evening last summer, about sunset, he saw Alexander Dahl standing at the end of John Folster’s house, speaking to his wife. That they stood speaking for some time. [A]53 That he did not think there was

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anything wrong going on, but merely considered it strange that anyone should stand so long speaking to Folster’s wife, who, the deponent knew, could not understand any language that Dahl could speak. All which was truth, as the Deponent should answer to God. Compeared also Peter Isaacson who, being solemnly sworn, deponed: That one day after the “rookery” began (meaning the reports of Dahl’s intercourse with Mrs. Folster) Alexr. Dahl came to John Folster’s house, where the Deponent then was and, asking John Folster what all this noise was about, said to him: “If you were a man, I would break your head.” All which, &c. Compeared also John Folster’s wife who, being examined, deponed that on three different occasions Alexander Dahl had had carnal knowledge of her person. Compeared also Margaret Heywood who, being sworn and interrogated, deponed that Mrs. Folster has frequently told her that the rumours of Alexander Dahl’s intercourse with her were well founded. All which, &c. As witnesses for the Defendant: Compeared also James McKay who, being sworn and interrogated, deponed that in his hearing Mrs. Folster had stated that Alexr Dahl had had intercourse with her. Compeared also Mrs. Wm. Folster who, being sworn and interrogated, substantially corroborated [A]54 the preceding witness. The Jury returned a verdict of Guilty against Alexander Dahl, and the Court sentenced him to one calendar month’s imprisonment from this date. Commentary This prosecution for “criminal conversation” was not, strictly speaking, legally valid. Despite its name, criminal conversation was not a crime. It was a tort: a civil wrong for which a husband could sue a man who had sex with his wife, as occurred in Smith v. Kirton (case 1, [A]1), the first case reported in the surviving court records. “Conversation” was a euphemism for sexual intercourse, and “criminal” in that context simply meant adulterous. That adultery was not a crime at common law was made clear by Sir William Blackstone’s Commentaries on the Laws of England (1766), one of the major legal textbooks available in Red River at the time:

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In the year 1650, when the ruling power found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, ... incest and willful adultery were made capital crimes ... [along with certain other forms of sexual activity]. But at the Restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour. And these offences have been ever since left to the feeble coercion of the spiritual court, according to the rules of the canon law.114 This is not to deny that Alexander Dahl’s conduct was criminal. He was undoubtedly guilty of the crime of rape. Why, then, was he not prosecuted for rape? Probably because rape was a capital offence. Under English law, which applied in Rupert’s Land, the penalty for rape was death, and it would continue to be so until 1861. Even in Upper Canada, an 1841 statute had recently reaffirmed the death penalty for rape.115 There was certainly more than one possible reason that Red River authorities shied away from laying the more serious – and correct – charge in this case. They may have shared the condescending and demeaning view of Janet Folster expressed by Justice of the Peace Bird. Male cynicism concerning sexual offences against women – an attitude that remains distressingly familiar today – may also have played a role. But it seems most likely, in light of subsequent treatment of rape by the court, that this case was classified as it was because the infliction of death for rape was considered an unduly harsh punishment.116

The Public Interest vs. Thomas Logan [Case 14] [Selling Whiskey] Thomas Logan, being accused of having, on the sixteenth April last, sold half a pint of whiskey to George Garriock, a Halfbreed,117 he admitted the fact, and was fined two pounds, which he paid in open court to the Collector.

The Public Interest vs. Henry Cook [Case 15] [Selling Whiskey to Indians] Henry Cook, being charged with having, about the beginning of April last, sold whiskey to Indians, he admitted the fact, and was fined ten pounds, which he paid to the Collector in open court.

The Public Interest vs. Mrs. Cathne. Norne [Case 16] [Selling Beer to Indians]

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Mrs. Norne, being charged with having, about the beginning of April last, sold to certain Indians a keg of [A]55 beer, for which she got a red deerskin and two shillings, she admitted the fact, and was fined five pounds, and also ordained to make restitution to the Indians of the two shillings, and the value of the red deerskin, which she accordingly undertook to pay.

The Public Interest vs. Henry Brown [Case 17] [Selling Beer to Indians] Henry Brown, being charged with having, about the beginning of April last, sold to certain Indians a keg of beer for six shillings, he admitted the fact, and was fined five pounds and ordained to make restitution to the Indians of the six shillings. The six shillings he paid the Indian, and the five pounds Henry Brown and Wm. Taylor appeared in open court, and bound themselves conjunctly and severally to pay to the Collector within the next ten days. [A]56

Special Meeting of the General Court Twenty-eight May, One Thousand Eight Hundred and Forty-six Present: Alexander Christie Adam Thom Alexander Ross James Bird John Bunn Cuthbert Grant

Esq. “ “ “ “ “

The Public Interest vs. James McDermot [Case 18] [Selling Whiskey] James McDermot being charged with the offence of having sold whiskey to certain persons in the plains,118 a Jury was duly empanelled, &c. Compeared Andrew McDermot, who voluntarily made the following deposition, viz: That last winter a quantity of liquor, consisting partly of whiskey, was sent out by Segimace to the Deponents’ son Thomas, then out

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in the plains. That the vessel containing the liquor was put up into a bundle. That Segimace did not know to whom it belonged. Refused to answer the question: “Who put the vessel into the bundle?” That Segimace was told not to sell it or give it to anyone excepting the Deponent’s son Thomas. That Segimace was afterwards [A]57 told that Thomas had gone on to Pembina, and that he then gave the bundle to James McDermot, [who is] also the Deponent’s son, telling him to take it home. That in coming home he met Narbaisse, Vallé, Lagraisse, and others. That they took the keg, measured out the contents, and told James McDermot that they would account for the value of the same to the owner. That they did not specify the owner’s name. Depones further: That he was present when Segimace received the keg of whiskey to be taken to the plains. That the Deponent told Segimace not to give it to anyone but Thomas. And that no other body than the Deponent was present. Compeared also Charles Gladieu who, being solemnly sworn and interrogated, deponed: That he was with the party who met James McDermot in the plains. That he partook of the liquor, which he deponed to be whiskey, and was told by the others that it belonged to James McDermot. That he paid nothing for what he drank. That James McDermot was standing beside them, but cannot say whether it was with or without his consent that they were using it – did not hear him offer any objections. All which was truth &c. Compeared also Bte. Vallée, who corroborated the preceding witness, & deponed further: That Pascal Montour, who was also [A]58 among the party, was the one who measured and sold the whiskey. That when Lagraisse asked James McDermot for some, James told Pascal Montour to give him a little, and accordingly poured out about a pint. All which was truth as the Deponent should answer to God. Andrew McDermot having, on his own voluntary deposition, been found Guilty of an illegal participation in the transaction in question, was fined eight pounds sterling; and James McDermot, having also been found Guilty, was fined twelve pounds sterling. Commentary Whiskey and other “ardent spirits” were regulated more closely than beer and wine. In the case of the milder intoxicants, it was only the sale to Indians that was prohibited, but from at least as early as 1839, it had been an offence to sell or barter any “native or other spirits, in quantities less than one imperial gallon” without a licence.119 Then, in June 1845, the prohibition was extended to selling, bartering,

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or even lending or “collusively present[ing]” spirits “of any description, in any quantity, or on any terms,” and the fine was set at £10 “over and above the general liability to punishment and restitution in the event of furnishing spirits to Indians.”120 The latter tightening-up of the regulations had occurred on the occasion of the Hudson’s Bay Company’s decision to open a distillery. The preamble to the amendments announced, “Whereas the Hudson’s Bay Company has intimated its intention of immediately establishing a distillery in compliance with the often repeated solicitations of the settlers, it is resolved ... [t]hat the Settlement is morally and equitably bound, as far as possible, to protect the Honourable Company against illicit competition, and to shield the public from the probable abuse of a larger supply of ardent spirits.”121 (To discourage competition, the company intended to “tinge” its spirits “with a peculiar hue not easily imitated,” and it was made an offence, presumably in addition to the crime of possessing any spirits without a licence, to possess spirits of a different colour than the HBC product.122 In fact, however, no local HBC distillery ever came into being.) The case was heard at a “special sitting” of the court, and was the only case considered at that session. Why was that? The only recorded previous instance of a special sitting had been for the Capenessweet case (case 6, [A]23), which had involved a double murder that placed the whole settlement in jeopardy. What was so special about this prosecution, for selling a relatively small amount of whiskey out on the prairie, that called for the court to be reconvened only a week after its regular session? A clue to the probable answer lies in the identity of the accused, or rather of the father of the accused. James McDermot was the son of Andrew McDermot, a leading free trader, one of the wealthiest men in Red River, and a thorn in the side of Governor Christie. Only a little over a month previously, Christie had written to Sir George Simpson bemoaning the difficulty of enforcing the company’s trade monopoly in a community, and by means of a magistracy, that were generally in sympathy with the free traders.123 He had accused Andrew McDermot, on whose premises a large protest meeting had been held on 19 February, of being, along with James Sinclair, one of the “principal instigators” of the meeting. And although McDermot’s fur-trading activities were conducted under a special agreement with the company, he seemed to sail rather close to the wind in some of his ventures. Christie suspected him of clandestinely violating the terms of the agreement by exporting some of his furs to the United States rather than selling them to the company as agreed. Christie had no confidence in the judiciary to enforce such supposed violations. He claimed that the magistrates had “expressed a degree of reluctance amounting in my opinion to a fixed determination not to adjudicate in cases arising out of illicit fur trafficking.” Yet he assured Simpson that he was nevertheless determined to exert ongoing pressure on McDermot and Sinclair. He said he intended to “seize skins on their way to the States,” and that “if McDermot and Sinclair’s furs do escape us this

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spring, it will be my endeavour, as it is my most anxious desire, to detain themselves here, by some means or other, until we can effectually call them to account.”124 Was this special sitting of the court one of the indirect “means” by which Governor Christie hoped to detain Andrew McDermot at Red River, or at least to harass his activities? While the governor’s motivation cannot be determined with precision, it is hard to believe that there was not some connection between this unusual case and the governor’s war against competitors.125 A few other features of the case are also worth noting. James McDermot appears to have been tried and convicted in absentia, a process as abnormal then as it is now. His father’s appearance and his proffering of largely hearsay evidence on his son’s behalf, and the court’s acceptance of that expedient, strengthens the supposition that this prosecution was substantially directed at the father. So does the fact that Andrew McDermot, although never charged, was convicted and fined along with his son. The fines – £12 for the son and £8 for the father – were not in accordance with the regulation, which called for fixed fines of £10, unless an averaging of the two fines could be considered substantial compliance. Finally, it should not be thought that whiskey and the free trade in furs were altogether unconnected. Indians were often willing to barter furs for spirits, and although the Hudson’s Bay Company valiantly attempted to abolish that practice, and succeeded to some extent over time, it acknowledged that it was sometimes forced to follow it in areas where its competitors did so. [A]59

General Quarterly Court Nineteenth November, One Thousand Eight Hundred and Forty-six 126 Present: Alexander Christie Adam Thom Alexander Ross Geo. M. Carey John Bunn Cuthbert Grant

Esq. “ “ “ “ “

The Public Interest vs. Bte. Carribeau [Case 19] [Giving Beer to Indians] Bte. Carribeau, who did not appear,127 being charged with having given beer to Indians, the following Jury were duly empanelled, viz:

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Wm. R. Smith Thos. Thomas Robert McBeath Henry Hallett John Inkster Wm. Tait

Pierre St. Germain Charles Larance Maxim. Dauphine Augustin Nolin J. Bte. Charbonneau Martin Lavallée

And, as witnesses for the Prosecution: Compeared Robert Munro who, being sworn and interrogated, deponed that on the twenty-eighth of October last he had sold a keg of beer to Bte. Carribeau & others. Compeared also Antoine Bruce who, being sworn & interrogated, deponed that Bte. [A]60 Carribeau had told him that the keg of beer which he got from Munro he, Carribeau, afterwards gave to Lacord, the Indian; and they then both proceeded with it to the Indian tents below Mr. Pritchard’s. Bte. Carribeau was found Guilty of the charge, and was accordingly fined five pounds.

The Public Interest vs. Robert Munro [Case 20] [Selling Beer to Indians] Robert Munro being charged with selling beer to Indians, he admitted: That on the 28th of October last he had sold a keg of beer to Bte. Carribeau. That Lacord the Indian was with him. That they carried the beer to the Indian tents below Mr. Pritchard’s, and there drank it. And he was accordingly fined five pounds, which he immediately paid the Collector.

The Public Interest vs. Mrs. Neil McDonald & Husband 128 [Case 21] [Selling Beer to Indian] Mrs. Neil McDonald being accused of having, on the third instant, sold to an Indian woman, Opematcheek, one gallon and a half of beer for two shillings; [A]61

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Mrs. McDonald admitted the fact, and was accordingly fined five pounds & ordained to make restitution of the price of the beer, both of which sums were paid in open court.

The Public Interest vs. Mrs. Neil McDonald & Husband [Case 22] [Selling Beer to Indian] Mrs. McDonald being farther accused of having, on the 3rd inst., sold to an Indian called Comesash three gallons of beer for six shillings; Mrs. McDonald admitted the charge, excepting as to the price of the beer, which she alleged was only five shillings. And, the Jury having found that five shillings was the price, Mrs. McDonald was fined five pounds & ordained to make restitution of the price of the beer. The five shillings was paid [to] the Indian in court, and Neil McDonald bound himself to pay the fine within the next ensuing two months.

The Public Interest vs. Mrs. [blank] Cyre and Husband 129 [Case 23] [Selling Beer to Indian] Mrs. Cyre being accused of having, on the 3rd instant, sold the following quantities of beer to Comesash,130 an [A]62 Indian, for the following articles, viz: ten fifteen two

quarts of beer for a three pt. blanket do. “ do. “ “ blue cloth capot, & do. “ do. “ “ one shilling;

the Parties Accused admitted the charge, and were accordingly fined five pounds & ordained to pay the Indian the sum of one pound five shillings, which the Jury found to be the value of the articles given by him for the beer.

The Public Interest vs. Mrs. [blank] Cyre and Husband [Case 24] [Selling Beer to Indian]

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Mrs. Cyre being accused of having, last autumn, sold to an Indian called Assiniboine or Stoney the following quantities of beer for the following articles viz: a keg of beer, 8 gns. seven quarts do. six do. six do. nine do.

for “ “ “ “

ten shillings a three pt. blanket a highland bonnet two shillings two shirts;

the Parties Accused admitted the charge, and were accordingly fined five pounds and ordained to pay the Indian [restitution in] the sum of one pound, nine shillings, which the Jury found to be the value of the articles, including the cash paid by him for the beer. [A]63

General Quarterly Court Eighteenth February, One Thousand Eight Hundred and Forty-seven Present: Alexander Christie Adam Thom Alexander Ross George M. Carey John Bunn

Esq. “ “ “ “

Andrew McDermot vs. Bapt. Fanyant, Pierre Poitras, Louison Morin, & Pascal Berland 131 [Case 25] [Trespass] The following Jury were duly empanelled, viz: Donald Gunn Hugh Polson Wm. Taylor Augn. Nolin Alexis Carrière Alban Fidler James Monkman Sr. Eml. Champagne Antoine Carron John Gunn Rodk. McBeath Frs. M. Dease And the Plaintiff appeared and stated: That he had lately made a complaint to Mr. Grant against the Defendants for having, without his permis-

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sion, and in defiance of his rights, cut down timber on his lot of land, No 1092; and that on being spoken to on that occasion, they threatened to persist in felling the wood, stating that they denied not only the Plaintiff’s title to the lot of land in question, [A]64 but also the power of the Hudson’s Bay Company to confer upon him any valid title to the same. The Deponent, under these circumstances, claimed five pounds of damages, but added that his object in raising the action was not so much the obtaining of reparation for the injury already done to his property, as the establishing of his title, and the securing of the lot in question from trespass in future. Pascal Berland stated: That he was not aware that the Hudson’s Bay Company had ever bought from the Indians the wood of which the lot in question formed part. That they, the Defendants, considered that, as Halfbreeds, they had a right to do what they had done; but that on these points they had some doubts, and had therefore allowed the case to come before the Court. All the Defendants admitted that they had cut wood on the lot in question. The Register of Lands granted in R.R.S. by the Hudson’s Bay Company was then produced and sworn to by Mr. Governor Christie.132 And on reference to the Lot No. 1092 it appeared that it had been granted to the Plaintiff. There was also produced the Indenture between the Native Chiefs and the Earl of Selkirk,133 to whose rights in the premises the Hudson’s Bay Company had succeeded. And on reference to the terms of the deed, it clearly appeared that the Plaintiff’s lot was comprehended within the limits of the District or country sold by [A]65 the Native Chiefs to the Earl of Selkirk. The Jury found the Defendants liable to the Plaintiff for five shillings of damages, and costs, and the Court decerned accordingly. Commentary This appears to be the first time the courts of the settlement were asked to entertain a Halfbreed land claim, or indeed any Aboriginal rights issue. However, the idea that the Hudson’s Bay Company’s title was clouded by unextinguished Aboriginal rights, which the Halfbreeds claimed to share, was not new. It had doubtless smouldered and sparked at the mass protest meeting in February 1846 – which was held, ironically, on Andrew McDermot’s own premises In view of the unequivocal terms of the Selkirk Treaty of 1818, the verdict in favour of the plaintiff was not surprising. There is no indication that the validity and intended purport of the treaty were challenged, as they would be in later years.134 The token award of damages – 5 shillings rather than the claimed 5

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pounds – might be seen as a sign of sympathy for the defendants’ position, although it might only have been an acknowledgment that both sides considered McDermot’s claim to be a test case about the principles involved. Not the least interesting feature of the case is the statement by Berland/Bréland that he and his colleagues had “allowed” the trial to proceed. The dissidents seem to have been confident of the Halfbreeds’ strength, vis-à-vis that of the court, more than two years before they were to prove it in the Sayer case ([A]151).

Alexander Ross Esq., Collector of Duties vs. Joseph Robert [Case 26] [False Customs Declaration] Joseph Robert being accused of having given in false statements of his imports from the United States last autumn, he admitted the charge, and was fined twenty pounds, which he accordingly paid in court.

James Bird vs. Thomas Brown [Case 27] [Trespass] The Plaintiff stated: That on Saturday morning the 23rd Jany. last, about one o’clock, he had been summoned out of bed by Mrs. Bird. That he went and found Thomas Brown, the Defendant, in bed with his servant Jane Mowat. That he ejected Thomas Brown, and upon going downstairs he found a lighted candle in a dangerous position on the dining room table, and a quantity of tallow melted from it. That the back door of the house and the porch door were open. The Plaintiff farther stated that for [t]his [A]66 trespass he desired to be redressed by the Court. Thomas Brown admitted the accusation, and the Court ordained him to find security for his good behavior for the next twelve months: himself to the extent of ten pounds, and two securities of five pounds each. And accordingly the Defendant, his father Henry Brown, and John Tait appeared, and bound themselves in the above respective sums.135

James Bird vs. Jane Mowat [Case 28] [Desertion from Employment] The following Jury were duly empanelled viz: James Inkster Saml. Henderson Donald Gunn Wm. Taylor

General Quarterly Court of Assiniboia Records, 1844–48

James Monkman Sr. Rodk. McBeath Hugh Polson Thomas Sinclair

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John Tait Augn. Nolin Alban Fidler Alexr. Sutherland

And the Plaintiff appeared and stated that he claimed from the Defendant twenty-one pounds fifteen shillings of damages for having, on the twenty-fourth January last, deserted her service, for which she had been engaged five years from 21st June 1845, as appeared by an agreement produced. The Plaintiff also produced the following statement of the items composing the amount of damages claimed on it: “Paid Mr. Clouston’s charge for engaging Jane Mowat in Orkney136 £3.00.00 [A]67 Brought forward £3.00.00 The H.B.Co. for passage to YF [York Factory] 6.00.00 Captain Herd additional for her coming in the steerage137 5.05.00 Charges on her account at YF, about 1.10.00 Mr. Mowat for her passage from YF to RR [Red River]138 3.00.00 Her salary at £9 p. ann. from the 21st June to about the same date in October viz: 4 months for which she rendered me services 3.00.00 £21.15.00 ” The Defendant pled that she had been dismissed [from] the service, and had accordingly left it on the day in question. Compeared Emily Lowman who, being solemnly sworn and interrogated, deponed: That on the night Mr. Bird found Thomas Brown in bed with Jane Mowat and turned her out, she heard Mr. Bird call from the top of the stairs to Mrs. Bird, her mother: “Send the wretch,” meaning Jane Mowat, “out of the house.” That these words were addressed to Mrs. Bird. That Mrs. Bird said: “It would not be legal to turn her out tonight.” That while this conversation was going on, Jane Mowat was in her own room below – that these words were not addressed to Jane Mowat. That, next morning after Thomas Brown had been found in the house, the Defendant said to the Deponent: “I must leave this house. It’s no use stopping here any longer.” All which was truth as the [A]68 Deponent should answer to God. Compeared also Thomas Brown who, being sworn and interrogated, deponed that on the night he was turned out of Jane Mowat’s bed, he heard Mr. Bird afterwards say to Mrs. Bird: “Send the jade out of the house,” and that Mrs. Bird said: “Let her alone till morning.” Being interrogated as to how he came to overhear the conversation, [Brown] deponed that he

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stood on the stairs listening to what was going on. That the Defendant was not there with him. All which was truth, as the Deponent should answer to God. The Jury139 found that the Defendant had deserted her service, and that therefore she was liable to the Plaintiff for such a part of the damages claimed as was proportioned to the period of the agreement unserved at the date of desertion, being three years and five months. Found that she was also liable to the Plaintiff for the costs of suit, and also found that the Defendant was entitled to credit for wages from the time of her embarkation at Orkney all as detailed in the annexed statement. And the Court decerned accordingly. Amos. of damages claimed Deduct for the time served, say 1 yr. & 7 mos. Forward [A]69 Expenses of suit

£21.15.00 6.17.09 £14.17.03

Deduct the following, viz: Balce. of wages due to Defendant 21st June 1846 Wages fm. that date to 23rd Jany. last Less for supplies

£14.17.03 0.16.06 15.03.09

2.06.00 5.05.00 7.11.00 1.08.00

Balance payable by the Defendant

6.03.00 £9.10.09

In the Case of the Infants Robertson vs. Richd. Smith [Case 29a] 140 [Guardianship Accounting] It is ordered that Mr. Donald Gunn, Mr. Jacob Truthwaite, and Mr. Thomas Firth be sworn before any member of this Court to ascertain, by the examination of witnesses to be sworn in like manner or by other means, the nature and value of the property left by the deceased father of the said Infants after the payment of debts and funeral expenses, the nature and value of the property possessed by their deceased mother at the time of her marriage with the said Smith, and the nature and value of the property which Smith [A]70 is ready immediately to surrender. And that they report the result of their enquiries, under their attested signatures, to this Court at its next ordinary meeting.141

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The Public Interest vs. Hugh Gibson [Case 30] [Selling Malt to Indian] Hugh Gibson being charged with having sold malt142 to an Indian for eight shillings, he admitted the charge, and was accordingly fined three pounds and ordained to make restitution of the price to the Indian.

The Public Interest vs. Wm. Donald Sen. [Case 31] [Selling Beer to Indian] Wm. Donald Sr. being charged with having sold a keg of beer to an Indian for ten shillings, he admitted the charge, and was accordingly fined five pounds and ordained to make restitution of the price to the Indian.

Andrew Mowat vs. Malcolm Cummings [Case 32] [Assault and Battery] The following Jury [A]71 was duly empanelled, viz: Hugh Cameron Hugh Matheson Thomas Logan James Hallet James Spence John Gunn Charles Heywood Charles Fidler Alexis Goulait John Vincent Henry Brown Peter Henderson The Plaintiff appeared and stated: That one night lately, while in Geo. Johnstone’s house, where the Defendant and others also then were, the Defendant, without any provocation whatever, had struck him two severe blows in the face. And the Plaintiff therefore claimed ten pounds damages.143 The Defendant stated: That on hearing some very abusive language made use of towards him, he supposed it was the Plaintiff, and went and “rubbed his nose,” but did not strike him as alleged. And he afterwards came to understand that it was not the Plaintiff who had used the language in question. Compeared John Tait, who, being sworn and interrogated, deponed: That on said evening in question he was in Geo. Johnstone’s house with the

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Plaintiff, the Defendant and others. That it was he, the Deponent, who had used the expressions that had offended the Defendant. That the Defendant came over to the place where the Deponent and the Plaintiff were sitting, saying: “What is it, what is it?” And that the Defendant struck the Plaintiff once. All which was truth [A]72 as the Deponent should answer to God. The Jury found the Defendant liable to the Plaintiff for ten shillings of damages and the costs of suit, and the Court decerned accordingly.

Alexander Dahl 144 vs. Lacord and his Brother Neeookeeshiweshiom [Case 33] [Home Invasion and Assault] Before the same Jury, the Plaintiff stated: That on the evening of first January last, the two Defendants came to the Plaintiff’s house demanding admittance, which being refused they threatened to enter by force, and began to beat the door violently, which was thereby partially broken. Compeared George Dahl, who, being solemnly sworn, deponed: That on the day in question he had been left in charge of his brother’s house, and that the two Defendants came and assailed the door in the manner above represented. And deponed farther that on telling them they would have to answer for their conduct, Lacorde said he would shoot any person who came to take him. Also deponed that by the violence of the Defendants the latch and mouldings of the door [A]73 were broken, and other injuries done. All which was truth, as the Deponent should answer to God. Compeared also John Vincent Jun., who, being sworn & interrogated, deponed: That on the day in question he was at the Plaintiff’s house. Corroborated the preceding witness and deponed that on Lacord refusing to bar the door, the Plaintiff’s brother Wm. pushed him away. And that a scuffle ensued, but that Lacord struck the first blow. All which was truth, as the Deponent should answer to God. The Jury found the two Indians Guilty, and they were accordingly sentenced to one month’s imprisonment. [A]74

General Quarterly Court Twentieth May, One Thousand Eight Hundred and Forty-seven

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Present: Alexander Christie Adam Thom Alexander Ross G. M. Carey John Bunn Cuthbert Grant

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Esq. “ “ “ “ “

James McKay & others vs. Andrew Spence [Case 34] [Destruction of Livestock] On the part of the Plaintiffs it was stated that on the sixteenth instant a dog belonging to the Defendant had, in the common, chased and destroyed ten lambs belonging to and valued by them as follows: Jas. McKay Rodk. McBeath Mor. McBeath Saml. Henderson Amounting in all to

6 lambs @ 5/ 2 do. “ 5/ 1 do. “ 5/ 1 do. “ 5/

£1.10.00 0.10.00 0.05.00 0.05.00 £2.10.00

The Defendant admitted the charge and, the Court having ordained him to pay to the Plaintiffs the sum [of damages] claimed by them respectively, the Defendant undertook to pay the whole, as well as the costs of suit, before the meeting of the August Court. [A]75

General Quarterly Court Nineteenth August, One Thousand Eight Hundred and Forty-seven Present: Alexr. Christie, Govr. of Assiniboia, President Adam Thom, Recorder of Rupert’s Land Alexr. Ross, Councillor John Bunn, do. Cuthbert Grant, do.

The Public Interest vs. John Hogan [Case 35] [Assault with Attempt to Rape]

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The following Jury having been duly empanelled, namely: Donald Gunn, Foreman John James Smith Thomas Firth Robert Clouston Hugh Polson Jacob Truthwaite Geo. Munro Hugh Cameron John Matheson Robert Rowland Alban Fidler James Spence John Hogan, a Private in Her Majesty’s 6th Regiment, and now a Prisoner in the public gaol, was brought to the bar charged with having, on the 29th [A]76 of July last, and on or near the public road, assaulted Margaret Cramer, daughter of Charles Cramer of Red River Settlement, with intent to commit a rape. The Prisoner pled Not Guilty to the charge, and, Lieutenant Mosse of Her Majesty’s 6th Regiment having appeared to conduct the Defence,145 the following witnesses were examined for the Prosecution: Margaret Cramer, being duly sworn on the Holy Evangelists146 and purged of malice and partial counsel, deponed: That on the afternoon of Thursday the 29th of July last, between four and five in the afternoon, while returning home after some weeks’ absence in service, she met the Prisoner on the public road, near John Norquay’s fence that leads towards her father’s house.147 That she knew he was a soldier, and also knew his name to be Hogan. ¶ That the Prisoner spoke to her, and shortly afterwards got hold of her by the neck & shoulders, and pushed her down on the ground. That the Defendant [sic: see Commentary] screamed and struggled to get the Prisoner off. That he sat down on her limbs and opened the flap of his trousers, telling the Defendant to sit still. That the Defendant, not being very well at the time, and having walked from John Garriock’s with her bundle of clothes to take care of, was very weak. And that she then told the Prisoner that she would inform the Captain of the detachment if he did not [A]77 let her alone.

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¶ That he then began to let her go. And, getting up, the Prisoner said: “God bless me, look at my clothes.” That the Defendant answered: “You know well enough; I told you I was not fit to be meddled with.” That the Prisoner offered her money, which she refused. That the Prisoner, on leaving her, said: “If I had anything to kill you with, I would do it on the spot.” Deponed further that while she was struggling and screaming as above deponed to, the Prisoner hurt her neck, and that by his violence afterwards, in sitting upon her loins while she was endeavouring to get him away, they were bruised and discolored. ¶ And after the Prisoner left her, the Defendant went straight home. And being asked by her father what made her look so dull she told him all that had happened, and that Hogan had been ill using her. Cross-examined by Lieut. Mosse: Had a child by a civilian twelve years ago. That she never had anything to do with Hogan or any other soldier, or with any civilian, since that time. That one day last winter Hogan came to her father’s house, where she lived, and offered to bring her some tea. That he did not bring it. That her sister also lived in her father’s house.148 That the Defendant knew that soldiers were in the habit of sleeping in her father’s house. That the Defendant had been at the barracks, Lower Fort, twice – once being on a Sunday, when she dined in the barrack rooms, with her child, among the soldiers. All which was truth, as the Deponent [A]78 should answer to God. Compeared Clarissa Sabistion who, being duly sworn and interrogated, deponed: That on the evening of the twenty-ninth July last she met Hogan on the bank of the river in front of her house. That she observed on his trousers what appeared to the Deponent to be blood. That she also perceived that his face was scratched, and his thumb swollen. That Hogan told her he had been riding a horse, which had fallen with him and made his nose bleed, and that from this accident came the blood she saw on his trousers and the scratch on his face. All which was truth, as the Deponent should answer to God. Compeared also Charles Cramer, Cooper,149 Red River Settlement, who being solemnly sworn and interrogated, deponed: That on the evening of Thursday the 29th July last, his daughter Margaret, on coming into the house, appeared to have a sorrowful look. That he asked her what was the matter with her, and that she told him how Hogan had been ill using her as above deponed to. That having no doubt of the truth of his daughter’s story, the Deponent recommended her to make a complaint on the subject

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to the officers of the garrison at the Lower Fort. That she did so, but, not having got any redress, he then advised [A]79 her to apply to the magistrates, which she accordingly did. Deponed farther that on various occasions soldiers, have slept at his house. That they would sometimes come in a little the worse of liquor, and that he did not like to put them out. All which was truth as the Deponent should answer to God. For the Defence: Compeared Thomas Burgess, Sergeant 6th Regiment and stationed with the detachment at Lower Fort Garry, who, being solemnly sworn and interrogated, deponed: That on one occasion last winter he turned Margaret Cramer out of the barrack rooms at the Lower Fort after seeing some of the soldiers put their arms around her neck. That she appeared to be rather pleased than otherwise with the men for taking these liberties with her. That he understood several of the soldiers were in the habit of frequenting the house where she lived, and that they carried a good deal of provisions thither with them, part of their own rations. That among the non-commissioned officers and privates at the Lower Fort Margaret Cramer, whom he identified in court, is looked upon as a very bad character. All which was truth, as the Deponent should answer to God. Compeared also Thomas Laughlin, Serjeant 6th Regt., who, being sworn & interrogated ut supra,150 deponed: That he has seen Margaret Cramer, whom he identified, in court, in the [A]80 Lower Fort barracks. And that he understood she had a very bad character. All which was truth, as the Deponent should answer to God. Compeared also Henry Limherst, Corporal 6th Regiment, who, being sworn & interrogated, deponed: That he has seen Margaret Cramer in the barrack rooms. That he has seen some of the men, particularly one called Mooney, kiss her and pull her about, at which she appeared to be well pleased. All which was truth, as he should answer to God. Compeared also Bartholomew Daly, Private 6th Regiment, who, being sworn and interrogated, deponed: That on one occasion he saw Sergeant Burgess turn Margaret Cramer out of the barrack room. That he considered her character very indifferent. All which, &c. Compeared also John Butler, Private 6th Regiment, who, being sworn and interrogated, deponed: That he had frequently seen Margaret Cramer in the barracks, Lower Fort, and that he believes she bears a very bad reputation. All which he shall answer to God.

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[A]81 Mr. Recorder Thom summed up the evidence, and the Jury, after due consultation, brought in a verdict finding John Hogan Guilty of the alleged offence of having assaulted Margaret Cramer with intent to commit a rape. Whereupon the Court sentenced him to imprisonment from six calendar months from this date. Commentary This case was the subject of a special written report by Recorder Adam Thom, the report having been requested by Governor Christie because two aspects of the case were “novel and important ... in our judicial annals.”151 Those unprecedented aspects were (1) the nature of the crime and (2) the fact that the accused was a British soldier. The arrival at Red River the previous September of the troops of the Sixth Regiment, while generally hailed as a godsend for the settlement, introduced a goodly number of randy young men into a community already short of unattached women. Certain social problems resulted, some of which, like this one, ended up before the courts. A further novelty was the introduction of the practice of third-party advocacy into the court’s proceedings for the first time. This was the first recorded instance of an advocate representing a party before the General Quarterly Court or, indeed, before any Assiniboia court.152 Most litigants and accused persons spoke for themselves. It is reasonable to infer from the constant reference to witnesses being “sworn and interrogated” that they were regularly questioned by members of the court – primarily by the recorder in all probability, but also by the governor, magistrates, and jurors on occasion – and there is reason to believe that contending parties were also given an opportunity to examine each other. The cross-examination in this case of Margaret Cramer by Lieutenant Mosse on behalf of the accused appears, however, to have been unprecedented. Lieutenant Mosse’s performance was skilful – almost professional. This does not mean he was a lawyer; there is nothing to suggest that he was. But he was undoubtedly experienced in the art of prosecuting and defending soldiers before courts martial – a common responsibility of military officers. And Mosse’s cross-examination of Margaret Cramer, as well as the evidence he called in support of the accused (which ignored altogether the facts of Hogan’s assault and tried to shift the spotlight to the victim’s allegedly blemished character) was, and still is, a classic defence tactic in cases like this. Happily, the jury did not allow itself to be distracted. A change of handwriting, organization, and expression in the record of this session’s trials, together with a sharp deterioration in spelling quality, signals that someone new was acting as court clerk. John Black had come to Red River with Adam Thom to perform that function in 1839, and the bold, clear hand that had transcribed what happened in court from November 1844 until May 1847 was his. Black’s focus had been shifting for some time, however, from the court to the Hudson’s Bay Company’s business activities. This may have been at least in part

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because Adam Thom tended to run a one-man show, and must have been very difficult to work for. Black’s marriage to Governor Christie’s daughter Margaret in 1845 had no doubt played a role as well.153 He would soon be promoted to the rank of chief trader, and he now seems to have altogether relinquished his duties as amanuensis for the General Quarterly Court, although his replacement, William R. Smith, would not be formally appointed until October 1848.154 When Black returned to the court, many years later, it would be as de facto recorder. The new clerk (possibly some person other than Smith, in an acting capacity) was subject to an interesting “Freudian slip,” if that term may properly describe something that occurred before Sigmund Freud was born. Throughout Margaret Cramer’s evidence, she is referred to as the “Defendant” rather than the “Deponent.” This reflects, perhaps, either the clerk’s personal opinion of Miss Cramer or the accusatory atmosphere in which her sad story, like that of so many other victims of sexual assault before and since, was challenged by cross-examination and scrutinized by the court. Adam Thom’s report on the Hogan case was concise, clear, and balanced. While some of its language might suggest that he shared the cynicism implicit in the crossexamination of Lieutenant Mosse and the handwriting slips of the court clerk,155 it nevertheless discloses that Thom’s charge to the jury was made “under a deep and firm impression of the Defendant’s guilt.” The complainant’s evidence was “complete and conclusive” in his view, and “the evidence for the Defence ... failed to bring home to her such a dissoluteness of conduct as would have rendered her more likely to yield than to resist.” Interestingly, though, it seems to have been Margaret Cramer’s demeanour in the courtroom that chiefly persuaded the recorder and the jury that she was telling the truth: “[T]he fearless indignation which constantly turned the eyes of the Prosecutrix away from the bench and ... to the Defendant, was more consistent with the man’s guilt ... than with the woman’s consciousness of willful and corrupt perjury.”156 The most surprising revelation of Thom’s report was something that the official record merely hints at. It disclosed that the evidence clearly established that Hogan’s actual crime was much more serious than what he was charged with: not just assault with intent, but full-fledged, completed rape. What, then, would have caused the magistrate to whom Margaret Cramer took her complaint (likely Dr John Bunn as president of the Lower District Petty Court) to charge Hogan with only the lesser offence? It was probably his knowledge that the penalty for rape was death, and his concern that a 100 per cent male jury might well acquit before taking a life for such a crime.157 What was Thom to do in the circumstances? His report states that the court “might, or perhaps should have, acquitted [the accused] of the lesser offence158 in order that he be tried for ... the capital crime.” He chose not to do so – likely for the same reasons his magistrate colleague had laid the lesser charge. When considering a suitable sentence for the convicted man, Thom said he took several factors into account. One was the “General Policy” that “[i]n this country

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female chastity stands peculiarly in need of the protection of the law. Hundreds of wives and daughters are periodically left without any other human aid while their husbands and daughters are absent, for months perhaps, at a time, in the discharge of their respective occupations; and during the whole summer women of almost every class are often drawn away, in quest of their domestic cattle, into the prairie or the forest.” He also took notice of the “special aggravation” arising from the fact that the offence had occurred at a time of, as he put it with Victorian delicacy, “her sexual indisposition.” On the other side of the ledger was the view Thom had expressed in his 1840 “Observations on the Laws and the Judicature of Rupert’s Land”159 that prison sentences in Rupert’s Land should be shorter than their English equivalents (in this case “two years of imprisonment with hard labour”) because personal freedom was more precious to North Americans than to the British. Not stated, but undoubtedly also present in Thom’s mind, would have been a desire not to displease British military authorities, upon whom the colony was so dependent for protection. “Under the circumstances,” the recorder concluded, the sentence he imposed of “six months of mere confinement would appear to be moderate infliction.” It should be noted that Hogan’s status as a visiting British soldier did not provide him immunity from the jurisdiction of the General Court, or call for the application of any law different from what would have been applied to a civilian charged with the same crime. While he had the advantage of representation by an officer of his regiment, there is no reason to believe that a similar right of third-party advocacy would not have been permitted him, upon request, had he been an ordinary citizen of Assiniboia with access to some skilled advocate.160

The Hudson’s Bay Company vs. Joseph Cook, Alexr. Christie Junr., Thomas Fiddler, Donald Bennerman, George Delorme, [blank] Boucher, [blank] Robillard, and Joseph St. Germain [Case 36] [Trespass and Cutting Hay Out of Season] This action was raised against the Defendants for trespassing in cutting hay at a time and place prohibited by proclamation, and they, having generally admitted the charge, were by the Court declared to have forfeited [A]82 all right and title to the hay which had been so cut, the forfeiture of the hay being deemed under the circumstances adequate punishment for the offence. Commentary In an era when grass-eating animals were essential sources of food, clothing, and motive power for everyone, hay was an extremely valuable commodity. Private

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ownership of Red River farmlands extended for 2 miles back from the river frontages, but for a further 2 miles beyond that, the landowners were recognized as having a “hay privilege,” entitling them to the exclusive right to cut hay thereon in midsummer. Beyond the “4 mile line” the land was owned exclusively by the Hudson’s Bay Company, but was treated by both it and the settlers as common grazing land most of the time. The 1841 consolidated Laws of Assiniboia161 set the period of summer exclusivity for hay cutting on each settler’s 2 mile “hay privilege” land as being between 20 July and 20 September,162 but those dates were varied from time to time, depending upon growing conditions. The “proclamation” referred to in the report, which may simply have been an announcement of those dates or may have altered them, is not mentioned in the minutes of any Council of Assiniboia meeting between the 1841 consolidation and the date of this case. That circumstance, coupled with the fact that the HBC was plaintiff in the case, suggests that it may well have been the company rather than the council that published the proclamation. That supposition suggests, in turn, that the land in question was part of the HBC-owned common lands, with respect to which it was within the company’s prerogative rights to change the hay-use regulations unilaterally if it chose to do so. The fact that the HBC was plaintiff (and as such would therefore have received the forfeited cut hay) raises another question. Given Recorder Thom’s ruling in August 1845 that Governor Christie could not adjudicate the McDermot-Sinclair action against the company because he was a “party interested in the fur trade” (see Commentary following page [A]37), how could he do so in this case, where the company, and therefore he, also had a material interest? That the interest in this instance did not involve the fur trade was certainly not a sufficient difference to distinguish the situations legally. [A]83

Public Interest vs. Pierre Marcellais [Case 37] [Theft of Boots] Before the following Jury, namely: Alexander Matheson Roderick McBeath Charles Larance Benjamin Larjemonière John Fowles Samuel Cook Michel Dumais [blank] Touron James Taylor Jn. Bte. Ayotte

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Henry Brown Emanuel Champagne Pierre Marcellais was charged with having, on the 26th July last, stolen from the Upper Fort barracks a pair of boots belonging to Lieutenant Mosse, 6th Regiment and, the Prisoner having admitted the charge, he was sentenced to a fortnight’s farther163 imprisonment from this date.

Public Interest vs. Catherine Parisien [Case 38] [Theft of Lace, Ribbon, and Soap] Before the same Jury, the Prisoner in this case was charged [A]84 with having, on the fourth of August current, stolen from the house of Madame Bovette, with whom she was then living in the capacity of servant, six yards black silk lace, two yards broad sarsnet164 ribbon and a piece of soap; And, the Prisoner having admitted the charge, she was sentenced to imprisonment for two calendar months from the sixth day of August current.

George Flett Junr. vs. Robert Swain [Case 39] [Defamation] Before the same Jury that sat in the case of John Hogan, the Plaintiff in this case appeared and stated: That the object of this prosecution165 was to recover from the Defendant suitable damages for his having defamed the character of his wife, inasmuch as, on 2nd May last, he had stated to several persons that he had seen the Plaintiff’s wife “in the bushes with a soldier.”166 And, the Defendant having also appeared in court, the following witnesses were examined: Thomas Atkinson, being duly sworn and interrogated, deponed: That on a Monday some time ago, he was told by the Defendant that on Sunday, [A]85 immediately preceding, he had seen the Plaintiff’s wife lying in a bush with one of the soldiers. That the Deponent stated he did not believe it, to which the Defendant replied that he would swear to the truth of what he had told him. All which was truth, as the Deponent should answer to God. John Bourke, being duly sworn and interrogated, deponed: That he had also been told that the Defendant had stated his having seen the Plaintiff’s wife in the situation referred to by the preceding witness. All which was truth, as the Deponent should answer to God.

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Sarah Flett, being duly sworn & interrogated, deponed: That on the Sunday in question the Plaintiff’s wife had been with the Deponent the whole day, at least from the morning till near about sunset. And that on hearing the Defendant’s story as to having seen the Plaintiff’s wife with the soldier on the Sunday referred to, she remarked that it could not possibly be true, as she had been with the Plaintiff’s wife almost the whole of that day. All which was truth, as the Deponent should answer to God. George Flett Senr., being duly sworn and interrogated, deponed: That on the Sunday [A]86 afternoon in question he, with the Plaintiff’s wife & some more of their friends, including Sarah Flett, went to Sturgeon Creek, returning in the evening about sunset. And that he parted with them, the Plaintiff’s wife among the others, near their own house. All which was truth, as the Deponent should answer to God. Thomas Cameron, being also sworn and interrogated, deponed: That on the Sunday evening in question he went from Mr. Ross’s to Plaintiff’s house a little before sunset. That shortly after he arrived the Plaintiff and his wife came in. That the Deponent remained in the house the whole evening, and that the Plaintiff and his wife were with him all the time. All which was truth, as the Deponent should answer to God. The Jury, after being addressed by Mr. Thom, and after having had due consultation, found a verdict for the Plaintiff, awarding to him from the Defendant five pounds sterling of damages, with costs of suit; And the Court decerned accordingly. [A]87

General Quarterly Court Eighteenth November, One Thousand Eight Hundred and Forty-seven Present: Alexander Christie Adam Thom Alexander Ross John Bunn Cuthbert Grant

Esquire “ “ “ “

The Public Interest vs. Peter Hayden [Case 40] [Sale of Whiskey]

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A Jury having been duly empanelled, Peter Hayden, who appeared in court, was charged with having, on the 6th November current, sold to Christopher Hans, a Private of the 6th Regiment, a pint of whiskey for two shillings and six pence, in contravention of the recent regulations on the subject of the sale of spirits. Christopher Hans, being duly sworn and interrogated, deponed: That in the presence of one of his comrades, James Gaunt, he did, on the day above mentioned, pay the Defendant two shillings and six pence for one pint of whiskey.167 James Gaunt, being duly sworn and interrogated, deponed in corroboration of the preceding witness. [A]88 The Defendant, being asked whether he had any questions to put to the witnesses, stated: That he knew neither of them. That frequently soldiers had troubled him, and just to shut them out of the house he had made them a present of a jug full of whiskey. Interrogated as to whether he could prove his ever having gratuitously given soldiers whiskey, [the Defendant] stated that he seldom saw anyone but his farmer; stated farther that he had never received money as a gift from a soldier, but had on two several occasions found money while sweeping the floor. That he had never sold less than one gallon of whiskey at a time, and that this could be proved by the testimony of Morrison McBeath.168 Morrison McBeath, being interrogated, deponed: That while in Peter Hayden’s house on a recent occasion a woman came in wishing to purchase some whiskey for a sick child. That Hayden said he could not sell it in small quantities, and that he saw Hayden make her a present of the whiskey. The Jury found the Defendant Guilty, and he was accordingly fined five pounds sterling and five shillings of costs. [A]89

The Public Interest vs. Peter Hayden [Case 41] [Sale of Whiskey] In this case Peter Hayden was charged with having, on seventh September last, sold to [blank] Breathwate, George Worth, and Stephen Paine, on two several occasions that day, two pints of whiskey for two shillings per pint.

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And the said George Worth and Stephen Paine, being severally duly sworn and interrogated, deponed in substantiation of the charge. Whereupon the Jury found him Guilty, and he was accordingly fined five pounds for each of the two separate offences, with nine shillings of costs, amounting in all to ten pounds nine shillings sterling.

The Public Interest vs. Peter Hayden [Case 42] [Sale of Whiskey] Peter Hayden was in this case charged with having sold to James Gaunt, on the sixth November current, but previously to his visit in company with Hans at a subsequent period of the same day, one shilling’s worth of whiskey, Gaunt having seen Hayden take it up. And, the said James Gaunt having, on oath, deponed to that effect, the Jury found Peter Hayden [A]90 Guilty, and he was accordingly fined five pounds, with two shillings and three pence of costs.

The Public Interest vs. Peter Hayden [Case 43] [Sale of Brandy] The charge preferred against Peter Hayden in this case was that, on the fourth November current, and between four and five in the afternoon, he had sold to James Harrison, who was at the time accompanied by Samuel Hareford and [blank] Flinn, a pint of brandy for three shillings. And, the charge being substantiated by the testimony of the said James Harrison and Samuel Hareford, Peter Hogan [sic] was found Guilty, and accordingly fined five pounds, with five shillings and six pence of costs. Commentary The Red River Settlement’s laws concerning the sale of spirits were bewildering by this time. Peter Hayden’s claim, in defence, that he never sold whiskey in less than 1 gallon quantities referred to an 1839 regulation that prohibited the sale of spirits in smaller quantities than that without a licence, probably as a means of regulating drinking establishments.169 In June 1845, when it was contemplated that the Hudson’s Bay Company would soon have a functioning distillery, council made it an offence for an unlicensed person to sell “any quantity” of spirits but provided that licences should be “gratuitous.”170 In January 1847 it decreed that “till a system of

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issuing licences shall have been actually introduced,” the sale of spirits to soldiers was prohibited.171 The following month, it established a system of issuing licences for the sale of beer, but not of spirits, noting in passing “the scarcity of malt.”172 Then, in May of the same year, it passed a law permitting spirits to be imported from the United States in certain circumstances, and to be sold (“for ready money only”) in quantities of no less than 2 gallons.173 Hayden seems to have been prosecuted under a combination of the June 1845, January 1847, and May 1847 regulations. If he found the situation confusing, he could be excused. Peter Hayden was obviously the target of a concerted law enforcement effort here. Was it coincidental that he was one of the free traders upon whom the Hudson’s Bay Company was seeking to put pressure – and who had, in January 1846, accidentally shot a young boy while preparing to defend against an apprehended Hudson’s Bay Company raid on his premises?174

Peter Brown vs. Baptiste Laframboise [Case 44] [Careless Treatment of a Horse] Both parties in this suit having appeared before the Court, the Plaintiff stated: That some time ago he had [A]91 lent a mare to the Defendant on condition of receiving from him seven shillings if he took the mare all the way to the Fort, and that he should, after making the journey, deliver her up to the Plaintiff. That instead of doing so, the Defendant had turned her loose in the plains, where, some days afterwards, she was found by the Plaintiff, apparently very much injured, being very poor and her tail very much cut. And that under these circumstances he claimed suitable damages from the Defendant. In proof of the injury done the mare: Compeared John P. Bourke who, being sworn and interrogated, deponed: That he had seen the Plaintiff’s mare after she had been found. That she seemed much jaded, and her tail much cut. And that in the Deponent’s opinion thirty shillings would not be too much to pay for the injury done the animal. Compeared also George Flett Jun. who, being sworn and interrogated, deponed: That he had seen the Plaintiff’s mare both before and after the time of her being lent to the Defendant. That he would at first have valued the mare at ten pounds, but afterwards at not more than seven pounds. After due deliberation, the Jury found the Plaintiff entitled to one pound ten shillings sterling of damages from the Defendant, with the costs of suit, and the Court decerned accordingly.

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[A]92

General Quarterly Court, held at Fort Garry Seventeenth February, One Thousand Eight Hundred and Forty-eight Present: Alexander Christie Adam Thom Alexander Ross John Bunn Cuthbert Grant

Esquire “ “ “ “

Baptiste Turcotte vs. Louis Galerneau 175 & Antoine Dunord [Case 45] [Trespass and Taking of Wood] Jury: Emanuel Champagne [blank] Boucher John McBeath Selkirk McKay Joseph Bird Thomas Logan Joseph Caplette Louis Caplette François Bruneau Benjamin Larjemonière J. Bte. Charbonneau Baptiste Boyer Vital Turcotte appeared for his father the Plaintiff,176 and stated: That the [A]93 Defendants were charged with having trespassed on his father’s lot of land by cutting down and carrying away wood from the same. In consequence of which damages were claimed to the amount of eight pounds sterling. By the Defendants, it was stated that: Galerneau had been told by Dunord to send across177 and cut the wood in question. That on Galerneau enquiring who the wood belonged to, Dunord told him that it belonged to everybody. That Galerneau afterwards sent his brother to the lot in question, where he cut wood for three days with Lagarde. That Galerneau, on being told that if he did not carry off his wood it would be stolen, sent his brother

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and Dunord, the Defendant, with horse sleds to fetch it. That on arriving at the place they found the wood gone. That on learning this from his brother, and hearing, moreover, that it was Vital Turcotte who had taken away the wood he, the Defendant Galerneau, went to Vital Turcotte who, after some hesitation, acknowledged that he had done so. That the Defendant told him that he had sent his brother to cut the wood in question, hearing that it belonged to everybody. Stated that he was told by Turcotte not to return to cut wood upon his father’s lot. It was farther stated by Galerneau that after this injuction from Turcotte, he had carried away twelve loads of wood from the lot. The [A]94 Defendant Dunord admitted that he had told Galerneau to cut wood on the lot in question, as he understood that it was common to all. On the part of the Plaintiff: Compeared Joseph Delorme who, being solemnly sworn and interrogated, deponed: That his lot runs parallel with Turcotte’s. That all the wood cut and carried off by others belonged to the Plaintiff’s lot. That he could not positively tell whether Galerneau had taken away any of the wood, but he knew that the island, which was at one time thickly wooded, was now nearly clear, and that before any was cut there were about a hundred and fifty loads on the island. All which was truth, as the Deponent should answer to God. Compeared also Denis Caplette who, being sworn and interrogated, deponed: That he was with Turcotte and others when the lot was measured. That he saw the island before any wood had been taken off it, and estimated the quantity of wood then on it at about one hundred and fifty loads. That the Deponent did not see Galerneau taking any wood from it. All which was truth, as the Deponent should answer to God. On the part of the Defendants: Compeared Joseph Galerneau who, being sworn and interrogated, deponed: That he was told by his brother Louis to cut the wood in question with Legarde. That he cut about [A]95 fifteen loads, but that on going for it some time afterwards he found it was gone. That he afterwards took away eleven loads. That he saw several others taking wood from the same place, among whom were Lamalice, Laronde, Lagloire. All which was truth, as the Deponent should answer to God. Mr. Thom then summed up the evidence and addressed the Jury, who, after due deliberation, found for the Plaintiff: twenty-seven shillings of damages,178 payable by Louis Galerneau. And the Court decerned accordingly.

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John Stevenson vs. William Saunders [Case 46] [Assault and Battery] Jury:179 John Vincent George Bird James Taylor Antoine Carron André Carrière Samuel Cook Samuel Henderson Pierre Gladieu Henry Brown George Adams François Bourette John Matheson [A]96 The Plaintiff appeared and stated: That he had raised this prosecution against the Defendant for recovery from him of adequate damages, estimated at ten pounds, for having on the [blank] day of December last, committed an assault upon the Plaintiff’s wife180 by beating her. In support of the charge: Compeared Hanah Asham who, being solemnly sworn and interrogated, deponed: That on the day in question the Defendant had borrowed an ox to go to the Lower Fort. That on his return, while taking the ox to the water, he fell down. That, suspecting he was hurt, the Deponent and the Plaintiff’s wife went up to him, when he asked about the ox. That the Plaintiff’s wife and the Defendant then came up the bank together, conversing together, but what about the Deponent did not know, being at some distance from them. That they went into the house, and shortly afterwards the Deponent heard some cries. That she went in and found the man in the act of striking the Plaintiff’s wife. That she appeared to make some resistance, and the Defendant repeated the blow. That he was intoxicated. That after the Plaintiff’s wife had been struck a second time she retaliated upon the Defendant, when the Deponent desired her not to do so, as he was intoxicated. [A]97 That the Deponent heard no words between them with respect to the borrowing of the ox. That a third time the Defendant struck the Plaintiff’s wife, laying her senseless on the floor with the blow. That the Plaintiff himself was away from home at the time. All which was truth, as the Deponent should answer to God.

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Compeared also Mary Stevenson, who, being interrogated on oath, deponed in corroboration of the preceding witness’s deposition. The Defendant admitted that he had beaten the Plaintiff’s wife, & that he had been drinking rum on the day in question. The Jury, after being addressed by Mr. Thom, and after due deliberation, found the Defendant liable to the Plaintiff in four pounds of damages. And the Court decerned accordingly. [A]98

General Quarterly Court Eighteenth May, One Thousand Eight Hundred and Forty-eight Present: Alexander Christie Adam Thom Alexander Ross John Bunn Cuthbert Grant

Esqr. “ “ “ “

William Brown vs. Hugh Camron [Case 47] [Defamation] A Jury having been duly empanelled, The Plaintiff stated his case by observing that he had raised the action against the Defendant for five pounds of damages for defamation of character, inasmuch as the Defendant had lately been giving out among his neighbours that the Plaintiff was a thief, and that he had stolen four cords of wood. The Defendant pled that he had not raised these reports, but had merely repeated what he had heard from others. As witnesses for the Plaintiff: Compeared Oliver Gowler who, being duly sworn and interrogated, deponed: That about a month ago he visited the Defendant on business. And that in the course of conversation the Defendant remarked that he, the Deponent, had thieves near his house. That the Deponent asked who

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they were. And that the Defendant then stated that the Plaintiff had stolen four cords of wood from him. All which was truth, as the Deponent should answer to God. Compeared also James Inkster who, being sworn and interrogated, deponed that some time ago he [A]99 was told by the Defendant that the Plaintiff had stolen from him four cords of wood. All which, &c. Compeared also John Sutherland who, being sworn and interrogated, deponed that he had also been told by the Defendant that the Plaintiff had stolen four cords of wood from him. All which, &c. After due deliberation, the Jury found the Defendant liable to the Plaintiff for five shillings of damages and costs, and the Court decerned accordingly.

Alexis Cardinal vs. Baptiste Gardepuis [Case 48] [Disputed Ownership of Haystack] A Jury having been duly empanelled, The Plaintiff appeared and stated: That he had two stacks of hay standing in the plains near a spot where the Defendant also had some stacks. That when the Plaintiff hauled home his two stacks the Defendant accused him of having taken one of his, the Defendant’s, and threatened him with a prosecution if he did not return it. And that, being afraid he would carry his threat into execution, the Plaintiff did return the stack, and told Gardepuis at the same time that when he could procure witnesses he would summon him for the value of the stack. Stated further that in consequence of his having, under the influence of the above threat, given back the hay he had, from the want of it, lost a horse; & that therefore he claimed £20 from the Defendant. Several witnesses were examined on both sides &, it being proved that the Plaintiff, instead of having two stacks of hay at first had only one, the Jury found him liable to the Defendant for ten shillings of damages, and also costs.181 [A]100

Court of Governor and Council, District of Assiniboia, Rupert’s Land 182

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In the Case of James Calder [Case 49a] 183 [Court’s Jurisdiction in Peace River Country]

At an ordinary meeting 184 of the Court, which was held on Thursday, the Seventeenth day of August in the year of Our Lord One Thousand Eight Hundred and Forty-eight 185 Present: Alexr. Christie Adam Thom John Bunn Alexr. Ross

Esqur. “ “ “

Mr. Recorder Thom commenced the proceedings by reading his opinion on the case to this effect. “James Calder has been brought into Red River Settlement to be tried before us for a felonious homicide alleged to have been committed by him in Peace River,186 which, after passing through Great Slave Lake, continues its course to the Arctic Ocean under the name of Mackenzie’s River. Have we jurisdiction in the matter? Individually, I answer in the affirmative, submitting at the same time the grounds of my opinion to my brethren on this bench.” [A]101 “But before I enter on the subject, I beg to express my satisfaction that on a point of such difficulty and importance, my habitual mode of discharging my duty has not left me at liberty to be influenced by the circumstances of the case under consideration. I need not remind you that I have uniformly embraced every opportunity of binding myself down, in the absence of most of the extraneous guarantees of judicial impartiality, by the enunciation of every general principle that can be brought to bear on any particular issue. In pursuance of this rule of action, I have already twice anticipated the very opinion which I am now about to justify and support. Six years ago, I communicated it to my official superiors in an essay on the trade and judicature of what are commonly known as the Indian Territories;187 and in February 1845 I embodied the same in a detailed view of our jurisdiction, which I addressed, along with various other matters, to the Grand Jury of this District.”188 “To come to the merits of the case, the Hudson’s Bay Company’s Charter, on the 9th page of the printed copy, conveys ‘the sole trade and commerce

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of all those seas, streights, bays, rivers, lakes, creeks & sounds, in whatsoever latitude they shall be, that lie within the entrance of the streights commonly called Hudson’s Streights, together with all the lands &c.’” [A]102 “Coupled with the professed object of finding ‘a new passage into the South Sea,’ nothing can fairly be held to ‘lie within’ the starting point of the royal grant, excepting what may be continuously connected with ‘Hudson’s Streights’ by means of the sea. Now down to the discovery of the Straits of the Fury and Hecla, Hudson’s Bay alone, in addition of course to ‘Hudson’s Straits,’ was known to ‘lie within’ the starting point in question. As, previously to such discovery, the competition between the Hudson’s Bay Company and the fur traders of Canada had come to a close, the only matter in dispute between the rival associations with respect to the extent of Charles the Second’s Letters Patent, as distinguished from their validity, was not how much of the coast, but how much of the adjacent interior, the Charter comprised; so that the distinguished lawyers on either side were not required to consider the stretch of the Charter to the westward.” “But the discovery of the Straits of the Fury and Hecla, under the light of other discoveries, brought within the range of the Charter the whole of the westward coast as far as the borders of Russian America, showing the same to ‘lie within’ the entrance of ‘Hudson’s Straits.’ The Hudson’s Bay Company, it is true, did not alone effect all those discoveries. This fact, however, does not stand in the way of the aforesaid interpretation of the Company’s [A]103 claims. The Charter does not limit the Company in this respect to the enjoyment of its own discoveries. On the contrary, moreover, the 18 Geo. 2, Ch.17, a statute passed to encourage and reward the search for a northwest passage, expressly saves the ‘Estate &c.’ of the Hudson’s Bay Company. In the analogous case, too, of the South Sea Company, the 9 Ann, Ch. 21, s. 50, vested in that corporation all the islands that might be discovered within certain limits, whether by its own ships or by those of the Crown.” “Nor was the extent of grant, which this interpretation claims, at all inconsistent with the spirit of the seventeenth century. Carolina, which, according to its Charter, was private property as well as Rupert’s Land, covered the whole width of the continent from the Atlantic to the Pacific; and New France, as vested in a number of individuals by Louis the Thirteenth, was to extend in length from Florida to the Arctic Circle, and in breadth from Newfoundland to Lake Huron, and thence as much farther to the westward as the parties interested might carry the Gallic name.” “But, in another respect also, the Charter has had a growing accomplishment, and that, too, beyond the most liberal construction of its language.

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According to the terms, alike of the application and of the [A]104 grant, the Company’s territories, within the general limits aforesaid, were to be restricted to such places as were not ‘already actually possessed by or granted to any of our subjects or possessed by the subjects of any other Christian Prince or State.’ Now, there is reason to believe that before [missing word? “then”?] the fur traders of New France had reached some of the tributaries of Hudson’s Bay. If such a fact could have been clearly established, then the entire extent of French possession would have been lost to the Charter, even on its own showing. But the actual right would in all probability have been very different, for the Treaty of Utrecht, without inquiring into the origin or duration of French possession, transferred to the Company the French portion, whatever it might be, of the territories as generally described in the Charter.” “The gradual extension to the westward, therefore, of the maritime border of the Company’s territories, rests at once on the essential terms of the grant, and on the historical analogies of the inland boundary. Then, as the Charter includes not merely ‘seas and streights,’ but ‘rivers and lakes,’ thus in fact comprising everything back to the height of land, Peace River, as a matter of course, must follow the fortunes of the spot where its waters discharge themselves into the ocean, being just as much within the chartered [A]105 territories as the mouth of Mackenzie’s River, neither more certainly so, nor less certainly so.” “Were I not anxious, at this distance from the busy world, to render these observations as complete as possible, I should hardly deem it necessary to anticipate an objection that may be founded on the use, whether chartered or popular, of the words ‘Hudson’s Bay.’ If the South Sea Company held by one and the same tenure, and from one and the same date, not only the American coasts of the Pacific but also a considerable part of the Atlantic coasts of Spanish America, then may the Hudson’s Bay Co. consistently claim to hold something more than the shores of the inland sea from which it takes its name. Again, to cite the more formal title of the corporation last mentioned, surely the Adventurers of England ‘trading into Hudson’s Bay’ might, without violating the proprieties of language, have sailed through it or beyond it, even if the document that incorporated them had not contemplated the finding of ‘a new passage into the South Sea.’ And, in fact, the very document in question stated in its preamble that Prince Rupert and his associates had ‘undertaken an expedition for Hudson’s Bay in the northwest part of America for the discovery &c.’” “But even if not included in the primary and absolute grant aforesaid, [A]106 Peace River may still be ours, under a secondary and contingent

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provision of the Charter. That instrument, on its twelfth page, grants ‘unto the said Governor and Company and their successors, that they shall forever hereafter have, use, and enjoy not only the whole, entire, and only trade and traffic, and the whole, entire, and only liberty, use, and privilege, of trading and trafficking to and from the territory, limits, and places aforesaid, but also the whole and entire trade and traffic to and from all havens, bays, creeks, rivers, lakes and seas, into which they shall find entrance or passage by water or land out of the territories, limits, and places aforesaid.’” “In this case, where the Company’s enjoyment was to depend on the Company’s discovery, there was contemplated something very different from the mere coast which might from time to time be ascertained to ‘lie within the entrance of the Hudson’s Streights,’ inasmuch as these adjacent or subsidiary regions might be reached either by water or by land, or by both land and water. If a practicable ‘passage into the South Sea’ had been found, the secondary and contingent grant might have comprised the shores of the Pacific, provided such shores were visited through such passage, thus bringing the Hudson’s Bay Company into lawful competition with the monopolies [A]107 of the South Sea Company and the East India Company, just as these two monopolies potentially came into lawful competition with each other, the one by the Cape of Good Hope and the other by Cape Horn. Again, though a practicable channel was never discovered along the Arctic Ocean, yet the secondary & contingent grant might have embraced such of the shores of the Pacific as lay across the Rocky Mountains. Something of the kind would appear to have been in the view of the framers of the Charter, for in the sequel of the last quotation, the inhabitants of the primary and absolute grant are differently described from those of the secondary and continent [sic: “contingent”?], the former being characterized as ‘natives, and people,’ and the latter as ‘nations.’” “Now Lieutenant Hearne, journeying ‘by land’ on behalf of the Hudson’s Bay Company, was the first to penetrate into that part of this country, which discharges its waters into the Arctic Ocean, as distinguished from Hudson’s Bay, having preceded by about seven years the earliest visit of the fur traders of Canada. Besides following the Coppermine River to is mouth, that officer, incomparably the most enterprising of all the northern discoverers, crossed Great Slave Lake, at once the receptacle of Peace River and the reservoir of McKenzie’s River, in 1771 or 1772; while it was only in 1778 that the Company’s Canadian opponents first surmounted the Portage La Loche; so that as the primary and absolute grant was to extend from the [A]108 shores of the sea to the height of land, both Peace River and McKenzie’s River, as appendages of Great Slave Lake, then clearly fell,

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by parity of construction, within the range of the grant which was secondary and contingent.” “To sum up the whole, Peace River, under either grant, appears to me to be embraced within the limits of the Company’s chartered right of exclusive trade.” “Nor has the Company, to the best of my knowledge and belief, sacrificed any of its privileges in the premises by its acceptance of the royal licence, as sanctioned by the 1 & 2 Geo. 4, Ch. 66. That statute authorised the issuing of a licence, or of licences, for trading with the Indians ‘in all such parts of North America as shall be specified in any such grants or licences respectively, not being part of the lands or territories heretofore granted to the said Governor and Company of Adventurers of England trading to Hudson’s Bay, and not being &c.’ When taken in connection with the avowed aim of the statute to put an end to competition by converting a hitherto open commerce into a monopoly, the exemption of the ‘territories heretofore granted to’ the Hudson’s Bay Company would, under a fair and liberal construction, comprise as well the regions of the secondary and contingent grant as those of that which was primary and absolute.” [A]109 “If so, any licence for Peace River, a stream embraced, as already shewn, under either grant, would so far be null and void. In all probability, however, no tract of wilderness has been particularly specified in the Company’s licence, such specification not being necessary for any particular purpose in favor of the chartered holders of the exempted territories. In fact, the licence could not be expressed in any terms more advantageous to the Company than the very words of the statute, for in this way alone could it make sure of covering all that the Charter had left, or might thereafter be found to leave, uncovered.” “To bring all this to bear on the question at issue, the chartered privilege of trading carried with it the rights of judicature. The Charter, on its sixteenth page, ordained ‘that all lands, islands, territories, plantations, forts and fortifications, factories, or colonies where the said Company’s factories and trade are, or shall be, within any of the parts or places afore limited, shall be immediately and from henceforth under the power and command of the said Governor and Company, their successors and assigns; saving the faith and allegiance due to be performed to us, our heirs and successors.’” “There would, however, be this difference. If Peace River, under the primary and absolute grant, should form part of Rupert’s Land, then would the Company, as feudatory sovereign of the country, have jurisdiction

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[A]110 over all and sundry the inhabitants of the same, subject, however, to the restrictions laid down with regard to the native tribes in the charge already mentioned to the Grand Jury. But if Peace River, under the secondary and contingent grant, should merely fall within the commercial monopoly, then would the Company, as not being in any sense sovereign of the country, have jurisdiction over those only who may live in its actual comployment [sic] or under its actual protection. But in the present case, this distinction would be of no moment, inasmuch as James Calder, the Prisoner, had gone to Peace River, and was still remaining there, as one of the Company’s engaged servants.” “Nor has the Company ever been deprived of its chartered jurisdiction. Though the 43 Geo. 3, Ch. 138 apparently intended to place the whole of the Northwest under the criminal jurisdiction of the courts in Canada, yet a question was immediately raised whether or not its provisions affected Rupert’s Land; and the 1 & 2 Geo. 4, Ch. 66, after recording in the most authentic forms, the doubts on the subject, and deciding the same in favor of the extraneous tribunals, enacted in a rider ‘that nothing in this Act contained shall be taken or construed to affect any right, privilege, authority, or jurisdiction which the Governor [A]111 and Company of Adventurers trading to Hudson’s Bay are by law entitled to claim and exercise under their Charter.’” “Under the operation of this rider, our jurisdiction remains in its original state; if it ever existed in Peace River, it still does so.” “But, even supposing our jurisdiction never to have existed in Peace River, and supposing also, as a matter of course, the jurisdiction of Canada to have been extended over the stream in question, I have still taken the responsibility, as resident Counsel of the Hudson’s Bay Company, of declining to recommend that James Calder should be sent to Canada for trial. It is my opinion, as embodied long ago in the aforesaid essay and charge, that the 3 & 4 Vic., Ch. 35, commonly known as the Act of Union, has not saved to United Canada the jurisdiction vested in the separate provinces by the 43 Geo. 3, Ch. 138, and the 1 & 2 Geo. 4, Ch. 66.” “These statutes, best observed, did not merely provide for the trial in Canada of such persons as were accused of having committed crimes in the North West. They gave both to the judiciary and to the legislature of either Province an authority, not the less certain for its being incidental, in and over the Indian Territories in general, and they, moreover, gave to the Governor of the Lower province the power of appointing magistrates, not only in and for the remoter wilderness, but also in and for at least a [A]112 part of the Upper Province itself. This jurisdiction, too complex and peculiar to

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be saved by any general phraseology whatever, does not seem to me ever to have been contemplated by the framers of the saving or revising sections of the Act of Union.” “But the jurisdiction of Canada, even if valid in point of law, is utterly repugnant to justice and humanity. Let us follow a prosecution through its various stages. To quote the very words of the law as embodied in the two correlative statutes, ‘any person or persons guilty’ (guilty being a slovenly substitute for accused) ‘of any crime or offence’ may, without the intervention of a single magistrate or the guarantee of a single affidavit, be dragged to Canada from the farthest wilds of the North West by ‘any person or persons whatever.’ During the journey the reputed offender, if he is really to be prevented from escaping, must be subjected to the most severe restraint inasmuch as, to say nothing of the temptations & facilities of the American settlement of Sault Ste. Marie, the hardy denizen of the wilderness may elude his keepers in almost every encampment and on almost every portage. After a period of coercion ranging from six to eighteen months according to the locality of the crime and the season of the year, the prisoner of ‘any person or persons whatever’ is brought, [A]113 probably for the first time, within the cognizance of law. If he is then discharged, the oppression of the system needs no comment of mine. But if he is formally committed for trial he must pass several months in gaol before steps can be taken for the summoning of witnesses, and, before he can be confronted with the witnesses for the prosecution, or have the benefit of those for the defence, he must, under the most favorable circumstances, lie two years longer in the prisons of what may to him be a foreign land.” “But the reputed offender’s preliminary difficulties are not yet over. His trial may be delayed on various grounds; and to give an instance of this, the very last case, and that is now twelve years old, was postponed from our halfyearly court to another because neither bench nor bar possessed, or could procure a copy of, the very statutes which conferred the jurisdiction. When he is put on his trial at last, the investigation of the truth is more likely than otherwise to suffer from the want of competent interpreters, and even the jurors themselves are almost inevitably deficient in knowledge of local customs and local character.” “Meanwhile, the prisoner may be innocent, while the witnesses, who certainly are so, are enduring in the absence of their wives and families, a punishment perhaps heavier than the prisoner himself, even if guilty, may deserve.” “Under these circumstances, is it too [A]114 much to hope that the jurisdiction over what are commonly known as the Indian Territories, if it is not

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ours already, may be vested in us by the Imperial Parliament, more particularly as the governor of the District of Assiniboia is henceforward likely to bear a closer relation than before to the Crown?” “I beg, therefore, to move, that James Calder, for whose trial in fact the witnesses are not in this District, be detained in custody, and that a copy of this opinion, and also of the evidence in this case, be transmitted with the least possible delay to their Honors.” In this motion the other members of the Court unanimously expressed their concurrence. Commentary This closely reasoned justification of the General Quarterly Court’s jurisdiction over matters in the Peace River country has been called Rupert’s Land’s “first written judgement ... that has come down to us.”189 Although the written jury verdict in the 1839 Beardie case,190 perhaps also written by Adam Thom, might better qualify as such, the Calder ruling was certainly a major early legal milestone. As Thom himself noted, this was not the first time he had expressed a generous view of his court’s jurisdiction beyond Assiniboia. Both his 1840 “Observations on the Laws and the Judicature of Rupert’s Land”191 and his long jury charge in the 1845 Keetchipiwaipasse case (which was about to be published in England as he was writing the Calder opinion)192 had reached the same conclusion as he and the court now did on that subject. This fresh analysis of the geographic reach of the court’s criminal jurisdiction was prompted by the awkward situation created when a company employee was brought to the settlement charged with murder in the far-away Peace River country. The circumstances of the case are outlined in a deposition that apparently accompanied the prisoner to Red River, sworn by one Narcisse Papin, who was present at the time of the killing.193 The document describes a scene of ethnic tension, and perhaps sexual suspicion, within a snow-girded HBC post at distant Fort Vermillion. It was just after breakfast on 1 December 1847 in the “men’s house” of the post. Present in the room were three men: James Calder, the witness Narcisse Papin, and one Louis Demarais. Also present, despite the room’s designation, were three women: Papin’s wife, his motherin-law, and Demarais’s wife. All but Calder were francophones, although he understood a little French. As Calder stood by the fireplace culling a bundle of tobacco with a knife, Demarais, sitting on the edge of his bed, sent his wife to fetch a man called Charles Brassard from another building, and when Brassard arrived Demarais asked him, in French, to tell Calder in English to return a pair of Demarais’s shoes that Demarais’s wife had given Calder. Before Brassard could transmit the message, Cal-

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der, who had understood it in French, picked up the shoes in question and flung them at Demarais, along with an oath in English. Demarais leaped to his feet and attacked Calder, striking him on the head with a closed pocket knife and drawing blood. During this assault Demarais called out that he had been stabbed, and although he hit Calder a few more times, he soon fell to the floor with a wound that proved, the following day, to be fatal. Calder’s knife was later found, its handle burned off, in the fireplace. Although Assiniboia authorities no doubt considered themselves capable of conducting a fair trial at Red River, once the witnesses arrived, there was considerable doubt in the settlement and elsewhere about the court’s legal authority to do so in cases where the site of the alleged crime was beyond the territory conveyed to the company by its 1670 charter. Sympathy for the accused may well have exacerbated the doubt. Both a British statute of 1803 (the Canada Jurisdiction Act)194 and the 1821 licence,195 the latter of which extended the company’s permitted range of operations beyond the lands it owned to the west coast, were construed by many as requiring that at least persons accused of capital crimes outside the company’s land grant should be sent to Canada for trial. Other interpretations of the legislation were possible too,196 but there was a general perception in many circles that accused persons like James Calder would have to be transported to Canada for trial, at least unless it could be shown that the alleged offence occurred within the company’s charter territories. Adam Thom concluded that Rupert’s Land included Peace River and that, even if it did not, the charter’s bestowal of judicial authority – at least over HBC employees – included British areas adjacent to Rupert’s Land where the company was lawfully operating. He also held that Canadian courts no longer had the jurisdiction they once had to try cases from those parts of North America. The reasoning by which he reached those conclusions – reordered and stripped of its maddening verbiage – can be summarized as follows. (1) The Royal Charter of the Hudson’s Bay Company was still fully operational and was unaffected by possible early French possession of lands claimed by the company. Thom pointed out that the most recent relevant British legislation, the Fur Trade Regulation Act of 1821,197 confirmed the “authority” and “jurisdiction” granted to the company by its charter. And although he acknowledged that the charter excluded lands previously occupied by subjects of Christian princes,198 and admitted that there was reason to believe French traders may have occupied some of the lands in question before 1670, he asserted, correctly, that those lands had been subsequently ceded to the British by the French in the Treaty of Utrecht of 1713. (2) The charter granted the company both exclusive trading rights in, and outright ownership of, all lands drained by waters to which the Hudson Strait gave entrance, extending as far inland as the “height[s] of land” from which those waters rose. That assertion sprang from the provisions of the charter which granted the company the trade199 within and ownership200 of “all the lands and territories”

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drained by waters “that lie within the entrance of the straits commonly known as Hudson’s Straits.”201 While conceding that “distinguished lawyers on either side [many of them retained by the Hudson’s Bay Company and North West Company respectively]” had been divided as to “how much of the adjacent interior” was covered by that grant,202 Thom took the plausible, and generally accepted, position that it comprised “everything back to the height of land.”203 That would mean that if the Arctic Ocean, into which the Peace River flowed via Great Slave Lake and the Mackenzie River, could be said to “lie within the entrance of ... Hudson’s Straits,” the Peace River country would constitute part of the Hudson’s Bay Company’s wholly owned charter territory. Thom then set out to show why that was so. (3) Although only Hudson Bay was known to “lie within the entrance of ... Hudson’s Straits” at the time the charter was granted, the subsequent discovery of channels into the Arctic Ocean from the east (the Fury and Hecla Straits) meant that the entire Arctic coast fell within that category. The territory drained by the Peace River, which ultimately flowed into the Arctic, was therefore owned by the company. This startling conclusion flowed from Thom’s view that waters “within” the Hudson Strait were those that “may be continuously connected” with the strait “by means of the sea.”204 So sweeping an interpretation of the charter was not, he contended, “at all inconsistent with the spirit of the seventeenth century,” a time when other, equally vast land grants were being made in North America.205 Given that the term “within” suggests containment, and that Thom’s interpretation would seem to place the entire Pacific Ocean within the company’s domain if a northwest passage were ever discovered (which, as Thom himself pointed out, was one of the objects of the charter), it is not surprising that the Thom thesis never attracted much subsequent support. Sensing, perhaps, that this might be the case, the recorder then offered an alternative, less radical, basis for classifying the Peace River territory as charter lands. (4) Alternatively, the charter also granted the company the “entire” right to trade beyond its own territory in other lands “into which they shall find entrance by water or land”; and a company explorer had entered the Peace River drainage basin, by land, before any other European. Therefore, “even if not included in the primary and absolute grant aforesaid,” Thom wrote, “Peace River may still be ours under a secondary and contingent provision of the Charter.”206 The provision he relied on207 did indeed bestow upon the company a trade monopoly in, though not the ownership of, areas outside the territory conveyed outright if its employees found their way there by whatever route. And, he pointed out, Samuel Hearne, “journeying by land on behalf of the Hudson’s Bay Company, was the first to penetrate into that part of the country that discharged its waters into the Arctic Ocean,” having, in 1771 or 1772, “crossed Great Slave Lake, at once the receptacle of the Peace River and the reservoir of McKenzie’s River.”208 This was certainly a more persuasive argument than the contention that the Arctic Ocean lay “within the entrance” of the Hudson Strait.

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(5) Since “the chartered privilege of trading carried with it the rights of judicature,” the fact that the company enjoyed a trade monopoly in Peace River, whether the area constituted part of its “primary and absolute” grant or its “secondary and provisional” one, meant that its courts had jurisdiction there. Thom’s opinion that judicial and commercial authority went hand-in-hand209 was based on a charter clause stating in part that judicial authority extended to “all lands ... where the said Company’s factories and trades are or shall be ... under the power and command” of the company, subject only to the overriding authority of the Crown.210 The charter went on to bestow on the “Governor and Council” of each major company post the explicit “power to judge all persons belonging to the ... Company, or that shall live under them, in all causes, whether civil or criminal, according to the laws of this Kingdom, and to execute justice accordingly.”211 And the authority of that provision was not even affected by the fact (which Thom of course refused to acknowledge) that the charter’s grant of monopoly trading powers was illegal. When no such local governor and council were available, but only then, the charter authorized sending the accused person to a place where such a governor and council could be found or to England (not Canada) for trial.212 (6) In any event, the courts of Canada lost any jurisdiction their predecessors may have had to try cases from Rupert’s Land and the “Indian Territories” when Upper and Lower Canada were united in 1840. Thom based this questionable assertion on two facts: (i) that although the 1803 Canada Jurisdiction Act had given the courts of Lower Canada, and of Upper Canada in certain circumstances, the authority to try cases from “any of the Indian Territories or parts of America not within the limits of either of the said provinces or of any civil government of the United States of America,” those two provinces had subsequently been subsumed by the larger political entity of a United Canada in 1840; and (ii) that, in his view, the British statute (the Act of Union, 1840)213 which brought about the amalgamation did not preserve the authority of the courts of the previously separate provinces.214 While he recognized that the legislation did contain provisions preserving certain prior bestowals of jurisdiction, he contended that the prior jurisdiction over the “Indian Territories” was “too complex and peculiar to be saved by any phraseology whatsoever” and that it did “not seem to me to have been contemplated by the framers of the saving or revising sections of the Act of Union.”215 A perusal of the relevant provision – section 47 – of the Act of Union shows that it was much more sweeping and unambiguous than Thom acknowledged, stating that all powers of the pre-union courts “shall continue to subsist within those parts of the Province of Canada which now constitute the said two Provinces respectively, in the same form and with the same effect as if this Act had not been made, and as if the said two Provinces had not been reunited as aforesaid.” It is difficult not to conclude that when he reached this part of his analysis (superfluous to his conclusions in any event), the recorder allowed his enthusiasm for his cause to obscure his legal judgment. It is also possible that he did not have a copy of the Act of Union available to him at Red River.

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(7) Regardless of legalities, it was “utterly repugnant to justice and humanity” to send accused persons from the wilds of the northwest to Canada for trial. By far the easiest part of Thom’s reasons to understand, and to sympathize with, was this final moral-political argument about the folly and injustice of transporting accused persons and witnesses through vast reaches of wilderness to receive “justice” in Montreal or Toronto. Presumably, he went to the trouble of including this nonlegal argument in an attempt to persuade company officials in London and, through them, Parliament to accept his legal reasoning and, if not, to legislatively remove the jurisdictional doubts that had spawned this prodigious analytical effort on his part. What became of James Calder? The court records tell us little. We know from the foregoing decision that he was kept in jail pending the arrival of witnesses, with a view to a future trial before the General Quarterly Court of Assiniboia. We also know that he was never tried at Red River. On 17 May the following year, two sureties, “William Cochrane” (probably the prominent Anglican pastor William Cockran) and Robert Sutherland, appeared before the court and entered into bonds of £10 each “for the safekeeping of James Calder.”216 But there is no further reference to Calder in the court records. Perhaps the witnesses never arrived. Even if they did, we know that the evidence was considered insufficient to convict. Simpson eventually decided to pass the problem on to London: With reference to the case of James Calder, who unfortunately killed Louis Demarais, one of the Company’s servants, at the post of Vermillion two years ago, noticed in the 9 par. of your dispatch of the 25 March, this man, who was in custody at Red River Settlement but liberated on bail on account of ill health, is still in the neighbourhood of the Settlement. Mr. Recorder Thom, after full consideration of the case, was doubtful as to the character of the crime – whether it were manslaughter or justifiable homicide – but appeared decidedly of opinion that it could not be brought under the definition of murder. As there is not sufficient evidence to bring the case to trial, we shall, under the advice of the Recorder, defer sending Calder to Canada until we receive further instructions from you on the subject.”217 There the known story ends.

2 General Quarterly Court of Assiniboia Records, 1848–54

Long-sown seeds of trouble germinated, ripened, and burst. The next governor was a buffoon; the Sixth Regiment’s efficient peacekeeping troops were replaced by a useless band of drunken troublemakers; the Hudson’s Bay Company’s illegal fur trade monopoly met its end at the hands of an outraged public; and Recorder Adam Thom’s insufferable behaviour brought about his removal from the bench and ultimately from the Red River Settlement – but not before bringing the General Quarterly Court to its knees. Although a stronger settlement, and a much better court, emerged from the crisis, the reputation of the latter would never quite recover in history’s eyes.1 [A]115

General Quarterly Court Held on the Sixteenth of November, One Thousand Eight Hundred and Forty-eight 2 Present: Major Caldwell, Governor of Assiniboia Adam Thom, Esquire John Bunn, do. Alexander Ross, do. Cuthbert Grant, do.

William Taylor vs. Antoine Desjardin [Case 50] [Ownership of Horse] Jury: Mr. F. Dease “ Robt. Clouston

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“ Narcisse Marion “ Antoine Carrier “ Michell Dumas “ John Inkster “ José Savayard “ Thomas Thomas “ Benjamin Beauchemin “ Robert McBeath “ William Sutherland “ John Sutherland After the Jury were duly empanelled, The Plaintiff stated that in the summer of 1846 he was in possession of a mare foal of [A]116 about a year and a half old of a liard3 colour, and at which time it was following her dam on the common, and had got bitten by wolves rather severely on the right thigh, and only a small wound on the left, in which state it was brought home to him. After some time and attention it became healed, and he put it on the south side of the river, and did not see it again till the last August, in the possession of the Defendant. The Defendant pled that he bought the mare from Landré in or about the month of March 1847, and from which time he had always had it in his possession. It was about two years old when he bought it, and may be now near four. Compeared Thomas Brown who, being duly sworn and interrogated, deponed: That about the beginning of August 1846 he, in company with Thomas Sletter, found a mare colt belonging to the Plaintiff which had been severely bitten by wolves.4 “I knew it belonged to the Plaintiff because I had always seen it at his place. I knew her again as soon as I saw her after the Plaintiff brought her home. She bears the same scars on her thighs. The right thigh is the deepest scar; that on her left thigh is not so plain. When I saw her last in 1846 she was not hurt or cut in the tail, but when I saw her after she was brought home by Plaintiff, her tail had been recently cut, and not healed.” [A]117 All which was truth, as the Deponent should answer to God. Compeared also Thomas Sletter who, being duly sworn and interrogated, deponed: That he was in company with the last witness about haymaking time two years ago, when: “We found the Plaintiff’s foal out on the common. It was bitten by wolves severely on the right thigh. We took her

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home to the Plaintiffs, where she remained till she was healed, and from that time I did not see her till I saw her in the enclosure of the Plaintiff. I knew her at once. She had the same scars as when I saw her last. The mare might have been a week at the Plaintiff’s before the Defendant took her away. The tail of the mare had been recently cut, and was not entirely healed, when I saw her at the Plaintiff’s enclosure.” All which was truth, as the Deponent should answer to God. Compeared also Frederick Bird who, being duly sworn and interrogated, deponed: That he knew the mare before she was lost. “I saw her after she was cut by the wolves.” Knew she was put across the river, and did not see her again till he saw [her] in the Plaintiff’s park. Knew her immediately. She is a grey liard. Never examined her close, but knew her to be the Plaintiff’s. Does not know how long she remained at Plaintiff’s before the Defendant took her away. Cannot tell the age of horses. “Her tail was cut when I saw her in Plaintiff’s park.” All which was truth as the Deponent should answer to God. Compeared also Henry Bird who, being duly sworn and interrogated, deponed: That he saw the mare when it was put across the river in the summer [A]118 1846. It then had fresh wounds. Did not see her again till Plaintiff brought her down to his house. “Saw the same scars as when I saw her last.” Cannot say what age she may be, but thinks she is not full grown. All which was truth, as the Deponent should answer to God. Compeared also Philip Bird who, being duly sworn and interrogated, deponed: That he saw the colt two or three days after it had been wounded by the wolves. Saw her again a short time after she was put across, and has not seen her since that time. “Should know her if I saw her again. I had the mother of her. She was three years old last spring.” (Here the Witness was told to go and look at the mare.) Could not swear the mare he had just seen is the same that was put across in the summer 1846. “She carries the same scars, but differs in colour a little.” All which was truth, as the Deponent should answer to God. For the Defendant, Compeared Larbère Landré who, being duly sworn and interrogated, deponed: That he had the mare, and sold her to Antoine Desjardin. It was in the possession of Gros Parenteau when it was bitten by wolves. Was certain it is the same mare he sold to the Defendant. He has always seen her with him. It was bitten on the right thigh. It may be bit elsewhere – did not perceive it. All which was truth, as the Deponent should answer to God.

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Compeared also Pierre Parenteau who, being duly sworn and interrogated, deponed: That he had the mother and foal, and had sold the foal when eighteen months old to Landré. When the mare in question was foaled [A]119 her dam was the property of Gros Parenteau. She is now rising four years. She was bit on both thighs. Very near grey in colour, and very little changed since a foal. All which was truth, as the Deponent should answer, &c. &c. Compeared also Jean Parenteau who, being duly sworn and interrogated, deponed: That the foal was bit by wolves when six months of age, but not severely. “I will not swear the mare I have seen today is the same I reared and gave away, but will swear that it is the same I have always seen with Desjardins. All which was truth, &c. Compeared also Benjamine Lagomonier who, being duly sworn and interrogated, deponed: That about a year past, while looking for horses, he found a mare bit by wolves, and kept it nearly four months. The Plaintiff came and saw it, and then described to Deponent a mare which he, the Plaintiff, had lost, and offered payment to the Deponent if he could find her for him. “The mare I have seen just now at the courthouse door does not in the least come up to the description he gave of her at that time. He, the Plaintiff, said his mare had white legs, and her colour was a sandré blond, contrary to the one at the door, which is a sandré rouge.” All which, &c., &c. Compeared also Gabriel Desmarais, François Gandreau, Pierre Parenteau, and Joseph D’Lorm [who,] being duly sworn and interrogated, deponed: That the mare now standing outside the courthouse door was the same which the Defendant has had nearly two years. All which was truth, as the Deponents should answer to God. The Jury, after being addressed by the Recorder and [making] a minute inspection of the mare, [A]120 found the mare was the Defendant’s. And the Court accordingly ordained the Plaintiff to deliver it up, and also to pay costs of suit.

James Inkster vs. George Dahll [Case 51] [Setting Fire to the Plains] Jury: John Matheson John Folds James McKay

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Charles LaRence Alban Fidler William Taite Henry Bird James Spence Morrisson McBeath Angus Matheson John Sutherland Wm. McMillan After the Jury were duly empanelled, The Plaintiff stated that the Defendant had in the month of October last set fire to the plains, by which he had come to serious loss and damage to his property, and stated his demand for his loss to be eight pounds ten shillings. Defendant stated he was under the necessity of lighting the fire as there was a very large [A]121 fire beating down towards him, and he lit the fire to preserve his hay. But it mastered him after he had lit it, and ran from him towards the great fire. And therefore [it] could not be his fire which caused the loss and damage to the Defendant. Compeared Thomas Vincent who, being duly sworn and interrogated, deponed: That he was with the Defendant when he lit a fire between the springs and the mountain5 to save his hay. There was a ring or belt already burnt round the Defendant’s stacks. “The fire broke from us, and Defendant and William Taylor and self tried all in our power to put it out by beating on it, but did not succeed. We were obliged to leave off beating the fire, and ran to save our loaded carts.” Began to burn when nearly sunset. Is sure the fire ran down the country and joined the great fire. Met Robt. Munro on our way home, who asking who set fire, Wm. Taylor told him it was the Defendant. All which was truth, as the Deponent should answer to God. Compeared also William Taylor who, being duly sworn and interrogated, deponed as to the lighting [of] a fire, and corroborated the deposition of the former witness Ts. Vincent. And further that he, the Deponent, told Defendant “not to light a fire, for it would run from us,” but the Defendant replied: “There is no fear. It will not get away from us.” The great fire was in the swamp at the Oak-humock.6 After the Recorder had addressed the Jury, they retired for a short time [A]122 [and] returned into court with a verdict for the Plaintiff.

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Damages: Costs of Suit:

£8.10.00 1.03.00 £9.13.00

Commentary Fire was a dreaded scourge of the colony, and both deliberate and careless firing of the prairie were treated very sternly. See, for example, Recorder John Black’s jury charge in Bruce v. Mulligan (case 252, [C]36, 19 February 1864).7 Although this was a civil action for damages to compensate the loss James Inkster sustained as a result of the fire, setting grass fires was also a criminal offence under the Laws of Assiniboia. Informers shared the fines imposed for such conduct at that point, and defendant George Dahll offset some of what he was obliged to pay in this case by becoming a successful informer in a similar one in February 1849.8

Hugh Cammeron vs. Hugh Matheson & Angus Polson [Case 52] [Trespass] Jurors: Mr. F. Dease “ Robt. Clouston “ Thos. Thomas Narcisse Marrion Wm. Sutherland Charles Fidler André Carrier Michel Dumas [illegible] Morin [blank] La Fertie John Inkster Morrisson McBeath After the Jury were duly empanelled, The Plaintiff handed a paper to the Bench containing the grounds of his complaint, which was ordered to be given to the Clerk of the Court to be read, which was accordingly done. The paper stated that for years past he had suffered greatly by people passing and repassing through his grounds, and [A]123 breaking down his fencing, and exposing his crops to the depredation of horses and cattle. That twenty pounds would not pay the loss he had sustained. “I have therefore summoned Angus Polson and Hugh Matheson Junr. for passing in defiance of me, and going over my fence,

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and turning back when at a distance after going over and taking down the fence, and leaving it down to the great loss and damage of my crop.” Compeared Hector Jordan who, being duly sworn and interrogated, deponed: That he saw Hugh Matheson Junr. pull down a fencing stick on Plaintiff’s ground. Does not know if cattle got in there through the Defendant’s taking down the fencing. All which was truth, as the Deponent should answer to God. Compeared also Madame LeClair, being duly sworn. The above Madm. Le Clair, after being sworn, was set aside, as she could not swear that the damage sustained by Plaintiff was in consequence of the Defendants’ passing by and removing the fencing on the grounds of Plaintiff. Compeared also John Matheson who, being duly sworn and interrogated, deponed: That he saw Angus Polson passing through the Plaintiff’s ground in a track given by the Plaintiff in lieu of one at the back of the bush, but Plaintiff has shut or barr’d it up. He further deponed that he has frequently gone over the ground, and was there at the time now complained of. The Recorder summed up. The Jury retired for a short time and returned, finding a verdict for the Defendants. [A]124

In the Case of the Infants Robertson vs. Richd. Smith (from Page 69) [Case 29b] 9 [Guardianship Accounting] John Bunn Esquire paid into the hands of the Clerk in open court the sum of sixteen pounds sterling for the benefit of the children of the late Andrew Robertson, which sum the Clerk is authorized to place in the hands of the Honble. Hudson’s Bay Company, who have opened an account for them. On paying the above sum into Mr. Black’s hands on the 23rd November 1848, it appeared by the Honble. Hudson’s Bay Company’s books that Richard Smith had paid into the hands of the Honble. Company by transfer from the Estate of Thomas Cooper the sum of £32.18.01, which sum was given over to Dr. Bunn, who, after paying the funeral expences to the amt. of £4.13.00, and 15/ to Halcro Senr., the balce., 27.10.01, was placed to the credit of the orphans.

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“Statement of Richd. Smith’s Acct. with the Orphans of Deces. A. Robertson Dr. To: ⅔ of A. Robertson’s estate, amounting to £85.10.06: 57.00.04 To: Balance: 1.07.09 £58.08.01 Overpaid £1.07.0910

Cr. 1847, Nov. 19: Cash to J. Bunn 32.18.01 1848, Nov. 23: Cash paid into Court 16.00.00 Cattle, amounting to 9.10.00 £58.08.01

[signed] W. R. Smith Clerk to the Court.” Commentary

This was the first case in which the court concerned itself with matters of inheritance and guardianship. It would later be given legislative authority by the Laws of Assiniboia to deal with such matters,11 but in this case it appears to have done so on the basis of its own inherent authority as a court and/or the consent of Mr Smith. The facts seem to be that each of the Robertson children had become entitled upon their father’s death to one-third of the value of his estate. Whether this was by virtue of the father’s will or by operation of law is not clear. Their mother inherited the remaining third, and she also held the children’s shares in trust during her lifetime. When the mother, having later married Smith, subsequently died herself, her personal one-third share passed to her new husband, and he seems also to have retained control of the children’s portions, which they were entitled to have independently administered. Someone presumably raised a question as to whether Smith was doing so properly. In February 1847 the court appointed three persons – Donald Gunn, Jacob Truthwaite, and Thomas Firth – to investigate the manner in which the children’s inheritances had been handled by their stepfather. They were to do so by examining witnesses before a member of the court. This having apparently been done under the supervision of court member Dr John Bunn, and Smith having delivered (in cash and cattle) the balance to which the children were considered to be entitled, the court ordered the cash involved to be deposited in an HBC account for the children. How the cattle in question were dealt with is not disclosed. At the February 1849 session of the court, the small overpayment shown in the above statement was ordered to be refunded to Mr Smith. [A]125

General Quarterly Court Held on the Fifteenth of February One Thousand Eight Hundred and Forty-nine

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Present: Major Caldwell, Governor of Assiniboia Adam Thom Esquire, Recorder John Bunn Esquire, Magistrate Alexander Ross, Esquire, do. Cuthbert Grant Esquire, do.

In the Case of the Infants Robertson vs. Richd. Smith [Case 29c] 12 [Guardianship Accounting] The Clerk of the Court was, by the order of the Court, directed to draw out a note requesting Mr. Black to pay back to Richd. Smith the sum of £1.07.09, which was accordingly done and delivered to Richd. Smith in court.

[Public Interest v. John Tait] [Case 53a] 13 [Failure to Obey Jury Summons] John Tait was fined five shillings for refusing to act as juryman, and to appear at the next Court to shew cause why he refused.

Donald Gunn vs. Richd. Smith [Case 54] [Ownership of Calf] Plaintiff stated that a calf of his, calved on his premises in the month of March 1847, her colour red and white, her age now about one year and eleven months, “reared by myself and family, and in my possession from the time she was calved up to the 5th [A]126 November last, as I shall be able to prove, when she was unlawfully taken away and forcibly kept by the Defendant Richd. Smith. I now apply to this Court for the restitution of my property.” The Defendant pled that the calf was his. The undermentioned Jurors were then sworn: Joseph Bird Donald MacDonald Charles Cook Kenneth McDonald James Monkman Robert Rowland George Ross Thomas Firth Charles Haywood Alexander Work

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Thomas Sinclair

Duncan McRea For the Plaintiff:

Alexander Gunn who, being duly sworn and interrogated, deponed: That he knew the calf by its colour. It had always been at his father’s place. Has seen it suck its mother. “It was calved in our byre. Saw it constantly for about fourteen months, and after we let it run with the cattle it very seldom remained away, but came home with the rest of the cattle. Defendant took it away on a Sunday, without giving us any warning, and [I] did not see it again till in the possession of Defendant.” All which was truth, as the Deponent should anwer to God. Compeared also George Gunn who, being duly sworn and interrogated, deponed: That he knew the calf well from the time it was calved till the time it was taken away by the Defendant. [A]127 “There is no calf like it in the neighbourhood. John McDonald has one a little like it. My father’s calves went out to the plains with the cows. I was playing on the river with my skates [sic?] when I saw Defendant take a calf from my father’s byre. Did not know it was our calf, but thought it might be. I went to the Defendant’s place two or three days after, and our calf was there, confined in his byre.” All which was truth, as the Deponent should answer to God. Compeared also John McDonald Junr. “I was always about Mr. Gunn’s byres, helping George Gunn to feed and tend his father’s cattle. I know the calf. My father has one much like it, only our one has more spots. I went with one of the Gunns to see the calf at Defendant’s, and am sure it was Mr. Gunn’s.” All which was truth, as the Deponent should answer to God. Compeared also John Lee Lewes Smith who, being duly sworn and interrogated, deponed: That on the day Hogan & Margat. Cramer were tried,14 in passing by the Defendant’s premises, he perceived a weak calf, just calved. It wintered, and went out in the spring, and, some time after, Defendant told me that his calf had not come home for more than one or two weeks. I was hunting in the spring, when I found the carcase of a calf. I thought it might have been Defendant’s, but am not sure. After Defendant had taken the calf from Plaintiff’s place, I went over to look at it, and, to the best of my belief, it is not the Defendant’s.” All which was truth, as the Deponent should answer to God. Compeared also Matilda Gunn, who being duly sworn and interrogated, deponed: That she had been in the habit of attending upon and milking [A]128 “my father’s cows, and have seen the calf in question nearly every

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day. It went out the last summer with its mother, and kept with her. I know the calf to be my father’s. John McDonald has one like it, but should know our calf from it.” All which was truth, as the Deponent should answer to God. For the Defendant: David Harcus, being duly sworn and interrogated, deponed: That he knew the calf in question, and it belonged to the Defendant, and has been in the habit of seeing it “from the time I returned from the first trip to York Factory.” Never heard that the calf had not come home. Should know this to be the Defendant’s calf, although the Plaintiff should have one like it. Did not know if this calf was marked. Has not seen it since. It was neither a small calf, nor a large one; but a “stumpy calf.” All which was truth, as the Deponent should answer to God. Compeared also William Stevens who, being duly sworn and interrogated, deponed: That the calf in question belonged to Defendant, and [the Witness] had seen it in the month of August. Saw it always during the summer, and sometimes during the winter. “I again saw it after the Defendant took it from the Plaintiff. I knew it as soon as I saw it. I had not seen it since about the 20th June. Defendant told me Plaintiff claimed it.” All which was truth, as the Deponent should answer to God. [A]129 Compeared also Harriett Anderson. “The last year I had no milk, and I used to go daily to my brother’s, the Defendant’s, for some, and I frequently saw the calf in question. It was a middling good calf; it went out in the spring, and I saw it often until the latter part of July, and after that time, did not see it. Did not hear that the Defendant had lost his calf. They told me my brother had marked his calf by cutting a piece out of the right ear near the middle, the last spring.” All which was truth as the Deponent should answer to God. Compeared also Thomas Anderson who, being duly sworn and interrogated, deponed: That he knew15 the calf in question to be the Defendant’s. The summer before last, he often saw it. “The last time I saw it was last spring. I saw it again this fall at the Plaintiff’s. Have seen it very often at Bill Donald’s. Did not see Defendant mark the calf, but saw the mark when the calf was at the Plaintiff’s. It is marked on the end of the ear,” and does not know whether Defendant marks all his cattle. All which was truth as the Deponent should answer to God. Compeared also Widow Harcus [who,] sworn and interrogated, deponed: That she heard John Smith and James Gunn talking about the calf. James

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Gunn said to John Smith, “You must say that Dick Smith’s calf was dead in the plains.” All which was truth as the Deponent should answer to God. Verdt. in favour of the Plaintiff: to deliver up the calf and £2.05.06 expences & costs. [A]130

Jandron vers. Frederick Hamlin [Case 55] [Seduction, Loss of Domestic Services, Breach of Promise of Marriage] Jury: Saml. Cook Willm. Donald Maximilian Dauphinea Petit Morin Josh. Monkman George Bird

John Folds Michell Bellheumeur Joseph Danneau Bapte. Boyer Joseph Guilbeau Pierre Glaudeux

The Plaintiff stated that he brought this case before the Court for the loss of services, and seduction,16 of his daughter, as well as a breach of promise of marriage to his daughter,17 and stated his damages at £10. The Defendant pled that part of the statement of Plaintiff might be correct, but not the whole. Compeared Magdalene Vivier who, being duly sworn and interrogated, deponed, that the Defendant was frequently in her house, and asked the girl in marriage, but in jest, and “wished me to tell the girl’s parents, that he had no serious intentions concerning their child. It was about a month before Christmas, the last year, when he spoke this.” All which was truth as the Deponent should answer to God. Compeared also Marie Obichon who, being duly sworn, deponed: That she heard the Defendant ask the Plaintiff for his daughter. The Defendant’s wife said: “What is the use of asking, when your [A]131 uncle is against your marriage with our child?” This conversation took place about a week after New Year’s Day the last year. In the month of August, the Defendant’s daughter was delivered. Has seen the child, but cannot say if it is a fullgrown one. All which is truth, as the Deponent shall answer to God. Compeared also François Boudreau who, being duly sworn and interrogated, deponed: That he went one night to the Plaintiff’s house, and by the

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light of the stove he saw the Defendant in the inner apartment; and that he remained there a considerable time; and when he came away he left the Defendant there; and thinks he slept there, as it was very late. All which is truth, as the Deponent shall answer to God. Compeared also Angelique Jandron who, being duly sworn and interrogated, deponed: That her child was born the day after the boats left the last trip. Did not expect to be delivered so soon, but having brought her father down to the Fort in a cart, the ride had hurt her. Never had any connection with any other man. “When the Defendant had connection with me [it] was in November, about the sixth. My sister was in the bed with me.” All which is truth, as the Deponent shall answer to God. Compeared also Luca La Fertie who, being duly sworn and interrogated, deponed: That two days after All Saints’ Day he saw the Plaintiff’s wife, with a child in her arms, and said to the Defendant: “This is [A]132 your child,” which the Defendant denied being his. The Plaintiff’s wife then asked him why he had frequented their house if he had no wish for their daughter, and why he had asked their child in marriage if he was not intending it; upon which he, the Defendant, replied, “To laugh at you all.” All which was truth, as the Deponent should answer to God. For the Defendant: Compeared also Norbère Perreault who, being duly sworn and interrogated, deponed, that on the sixth of November, 1847 he and the Defendant arrived in the Settlement from the plains. Here the case closed, and after the Recorder summed up the evidence and addressed the Jury. They retired for a short time and found a verdict for the Plaintiff: damages five pounds, and costs. Mem.: £2 paid in court, the remainder to be paid in one month.

François La Framboise versus Bapt. Morin [Case 56] [Assault and Battery] Jurors sworn: Alexé Berland Alban Fidler Olivié Ducharm Peter Pruden Henry Brown Caspar Ducharm

James Setter George Ross Lucan La Fertie Josh. Lagamonier André Carrier Thos. Sinclair

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[A]133 Plaintiff stated his damages at six pounds for injuries received from Defendant. Defendant said nothing, and the case proceeded. Samuel Hughes, being duly sworn and interrogated, deponed: That they were passing by the deceased Commie’s house, till they came opposite to Bourk’s place. When passing the house of Richotts, where there was a wedding and feasting, they were determined not to go in, as they might think they were wishing to share their noce18 if they did. But as soon as they arrived at the house, some of the persons inside the house came out and invited them in. But they refused. Whereupon Baptiste Morin, said: “Well let them go, ‘band de merssion’19 – they have not sense to understand the politesse we intended them.” François La Framboise said that we had no intention of offending them, and that we were no more merssions than he was. Upon which Morin seized the Plaintiff and struck him, and then let him go. The Plaintiff then took up a stick. All which was truth, as the Deponent should answer to God. Compeared also Louis Bousquet and Louis La Framboise who, being both duly sworn and interrogated, deponed to the assault on the Plaintiff, and corroborated the evidence of the preceding witness, and nearly in the same words, with one exception, viz., that Morin called them [A]134 “band de pollisson,”20 and not “band de merssion.” Compeared also Baptiste Richotte who, being duly sworn and interrogated, deponed: That there was a wedding at his house, and the Defendant was there. And, it being told to him that the Plaintiff and his companion were passing close by his house, he told someone to invite them in, and ordered someone to take their dogs from their train. But they refused to remain. And then Morin, the Defendant, said: “Let them go, since they do not seem to understand the politesse we wished to shew them. Let them go, the merssions.” On which a scuffle took place. All which is truth, as the Deponent should answer to God. Verdict for Plaintiff with costs Paid in court Balce. due

£2. 02. 06 1. 05. 00 17.06

Regina 21 vs. Willm. Saunders [Case 57] [Assault]

General Quarterly Court of Assiniboia Records, 1848–54

George Bird Josh. Bird Dond. Gunn Robt. Rowland Petit Morin Josh. Monkman

103

Jurors sworn: Chas. Cook Maximilian Dauphinea Duncn. McRea Alexr. Work George Setter James Monkman

George Spence who, being duly sworn and interrogated, deponed, that he was in the house of David Saunders on the 30th day of December, and while in conversation with David [A]135 Saunders, and of [sic] William Saunders the Defendant, concerning some land, a difference of opinion arose between the two latter. “I was about to go home when I heard a noise, and someone saying that William Saunders was laying hold of the old man. I then, with the assistance of some others, interfered to prevent any harm to the old man and, from the violence displayed by the Defendant, I thought it best to tie him.” But he more than once broke from him and his fastenings, and attempted to strike the old man. And once he did seize the old man, and gave him a violent push, so that the old man fell down heavily against a box, and was severely hurt. “I remained afterwards till Defendant fell asleep, and then left the house.” All which is truth, as the Deponent should answer to God. Compeared also Peter Spence who, being duly sworn and interrogated, deponed to his having been at the house with his brother, and corroborated his evidence as given in the preceding. The Defendant having nothing in the shape of evidence to offer, the Recorder proceeded to sum up the evidence to the Jury, who after a short time returned a verdict of Guilty. The Recorder then passed sentence on him, viz. that he should be imprisoned from this 15th day of February to the 15th day of April.

Regina 22 vs. Henry Norquay [Case 58] [Setting Fire to Plains]

Chas. Cook Alban Fidler George Bird

Jurors Sworn: Maximilian Dauphinea Alexr. Work George Ross

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Peter Pruden [A]136 Robert Rowland Duncn. McRea

Dond. McDonald Josh. Bird Dond. Gunn

Morrisson MacBeath, being duly sworn and interrogated, deponed: That on Sunday evening the 8th of October, he saw a great smoke in the plains and, having his hay out, he felt alarmed that his hay might be destroyed by the fire. Whereupon he took his oxen and his plough and, in company with Neil Henderson, went out to plough round his stacks. His hay was in two different places. He had ploughed round one or two stacks when he perceived a new fire spring up. Upon which he immediately got on his mare, saying he would go and see who had lit this fire. He found the Defendant very busy endeavouring to put out the fire, and who told him he had lighted the fire merely “for a signal for our boys.” All which was truth, as the Deponent should answer to God. Compeared also William Gunn who, being duly sworn and interrogated, deponed: That on Sunday the 8th October, he saw a fire, and went out to endeavour to save his hay. And about three hours after he saw the first fire, he saw another spring up on a sudden. He rode to this last fire, and found the Defendant very busy trying to put it out. The Defendant said he had lighted the fire as a signal to his party, to let them know he was there. All which was truth, as the Deponent should answer to God. Compeared also Alexander MacBeath who, being duly sworn and interrogated, deponed: That [A]137 on Sunday evening, the 8th October, [he] saw a fire out in the plains. And about three hours after, a new or separate fire rose up, “which I went to see. And I found the Defendant there, who informed me he had lighted the fire for a signal to the boys.” All which was truth, as the Deponent should answer to God. The Jury, after being addressed by the Recorder, retired for a short time, and delivered the verdict: Guilty. Fine: Ten Pounds. Major Caldwell, being President of the Court, addressed Henry Norquay, and informed him that by the power vested in him as President of the Court he was enabled to remit one half of the fine,23 but cautioned him at the same time to be more careful for the future. Five pounds were accordingly remitted, and the Defendant paid into the Court five pounds – which was handed over to George Dahll, who had laid the information.24 The Court was then adjourned, till tomorrow the 16th, 11 o’clock.

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[A]138

At an Adjourned Court Held the Sixteenth of February One Thousand Eight Hundred and Forty-Nine Present: Major Caldwell, Governor of Assiniboia, Adam Thom, Councillor do. John Bunn do. do. Cuthbert Grant

President Recorder Magistrate Sheriff25

William Smith versus G. Welsh & Turner [Case 59] [Assault]26

Josh. Bird Thos. Firth Chas. Cook Geoge. Ross Alexr. Work Alban Fidler

Jurors Sworn: Donald MacDonald Chas. Haywood Robt. Rowland Willm. Donald John Folds Duncn. McRea

William Smith, being duly sworn and interrogated, deponed27 that on Tuesday, about 2 o’clock, on the sixth instant, as he was returning to his place with his wife, he was met, near the round house,28 by one of the Defendants, G. Welsh, who wished him to fight with him. “I refused to do so, but told him after the Court was over I would settle any little difference which might be between us. He still persisted, making use of gross language. Called me a bloody rascal, and my wife a whore. And said he had once broken open my house, and would break it open again. Upon this, the other Defendant, Turner, said something which I did not understand, and he [A]139 struck me, and knocked me down, and kicked me. And while I was down, the other Defendant, G. Welsh, came to me, and struck and kicked me, making use of threatening language as regarded my personal safety – also as to my dwelling & property – calling me vile names, and likewise my wife.” All which is truth, as the Deponent should answer to God. Compeared also Mrs. Patience Smith [who], being duly sworn and interrogated, deponed: That she and her husband were coming round the corner of the Fort, [and] were met by G. Welsh, who stripped and wished my husband to fight. But I would not allow my husband to fight; and I

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begged him at least not to fight while I was with him.” Corroborates her husband’s testimony, as to Turner’s striking, and knocking down her husband, & Welsh’s striking and kicking, and the words made use of. All which is truth, as the Witness shall answer to God. Compeared also George Wells who, being duly sworn and interrogated, deponed: That he was present part of the time when the fray took place between the Plaintiff & Defendants. “I was standing a short distance from them. So was Turner, harnessing an ox. I heard Smith say if he, Turner, came over to the other side of the river, he would break his bloody back. Then Turner went up to Smith, and knocked him down. Did not see Turner kick Smith. I was on the sick report, and merely went out for a walk.” All which is truth, as Deponent shall answer to God. [A]140 Compeared also Michael Coursol who, being duly sworn and interrogated, deponed: That he was harnessing an ox when Smith said to Welsh that he would, or could, break his back. Welsh told him to do it. “I then went away. And then I heard Smith say to Turner that he would serve him out, or words to that effect. And shortly after I saw Smith on the ground, but who struck first, or last, I cannot tell. I believe it was a fair challenge. Did not see Turner kick Smith, did see Welsh strike Smith, and saw Smith go into the Fort.” All which is truth, as the Deponent shall answer to God. Compeared also Patrick Lillias [who], being duly sworn and interrogated, deponed: That he was going out to work, and heard Smith say to Welsh that he was a bloody informer, and that he would, with something, break his back. “Afterwards I saw Smith on the ground. Do not know who knocked him down. Saw Turner come off from his ox, and I suppose he knocked Smith down. Did not hear Turner make use of any bad words.” Compeared also Mrs. Sangster who, being duly sworn and interrogated, deponed: That she was out walking, and met Smith and his wife. Welsh came up and asked Smith why he was going to break his back. Smith replied, he would do so after the business of the Court was over. Welsh told him if he could do it to do it immediately. All which is truth, as Deponent should answer to God. [A]141 Compeared also Mrs. A. Corrigan who, being duly sworn and interrogated, deponed to exactly the same as the preceding witness, Mrs. Sangster. All which was truth, as Deponent should answer to God. For the Prosecutor:29

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George Anderson, being duly sworn and interrogated, deponed: That himself and wife saw Welsh and Turner pass down; and, shortly after, they repassed in a hasty and determined manner. “I remarked to my wife, that I would bet anything that there was something up today at the Fort. Shortly after, Peter Heyden [Hayden] came in, and informed me that my son-inlaw Smith was nearly killed. I went directly to the Fort, and found Smith in bed, very bad from the ill usage he had received.” All which is truth, as the Deponent shall answer to God. Compeared also Edward Kenny, who being duly sworn, deponed: That he was the man who had passed down with Welsh. And when he returned he heard Smith say he would, with a pair of iron shoes, kick Welsh’s brains out, and would feed himself up for the purpose. All which was truth, as the Deponent should answer to God. After the Recorder had summed up the evidence, the Jury retired for a short time, and returned a verdict of Guilty against Turner, and Not Guilty against Welsh. The sentence of the Court was that Turner should be reprimanded and fined one shilling. He was accordingly reprimanded, & paid the shilling. Commentary This case provides a good introduction to the Chelsea Pensioners, the Red River Settlement’s new military upholders of the law. Smith, Welsh, Turner, Wells, and Anderson were all pensioners, and all five, along with many of their comrades, became frequent visitors to the settlement’s courts. In the next case on this same day’s docket (case 60), for example, Smith was the accused (which was probably the reason he tried to avoid fighting Turner until after this court session), and Welsh was the informer. Smith also figured in testimony in the case after that one (case 61), where Wells was charged with a liquor offence. Major Caldwell, who was the pensioners’ commanding officer, must have been chagrined about how many of his men appeared at a court session he presided over. And the situation would not improve much over time; at the next court session, for example, William Smith was defendant in two cases and George Anderson in one. The precise legal nature of this particular case is difficult to determine with certainty. The absence of any reference to “The Queen” or “Public Interest” in the style of cause might suggest that it was a civil claim for damages by William Smith; but since no damages or costs were awarded to him, and a fine was imposed on Turner, it must have been a criminal proceeding. That conclusion is strengthened by Smith’s testimony being under oath – which was not permitted for parties to civil litigation at that point. Criminal prosecutions may be either commenced by public lawenforcement authorities or “privately prosecuted” by the alleged victims. The fact

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that seven witnesses, including William Smith himself, were apparently called by the court, and two by Smith, seems to indicate that this was a hybrid public-private prosecution. The token size of the fine and the court’s failure to award Smith any civil damages or costs probably reflect its lack of sympathy for Smith, a notorious ne’er-do-well, as his commanding officer, Governor Caldwell, would have been well aware. [A]142

Public Welfare 30 versus Wm. Smith [Case 60] [Sale of Rum]

Josh. Monkman Geo. Bird Thos. Sinclair Heny. Brown Josh. Daigneau Saml. Cook

Jurors sworn:31 Maximilian Dauphinea Peter Pruden Nars. Marion Oliviea Ducharm James Setter Kenneth McDonald

George Welsh, being duly sworn and interrogated, deponed: That, on the 23rd of December, he, James Roper, and William Spratt were at W. Smith’s, and bought rum for two shillings. All which was, &c. Defendant stated he had some rum, for the Christmas [holiday], and Welsh came in with others, and said he was sick, and “requested me to let him have a little rum to cure him. I let him have it, but he did not give me two shillings.” Compeared also James Roper [who], being duly sworn and interrogated, deponed: That he and Welsh went over to Smith’s, and drank some beer. But, wanting something short, “We requested Smith, to let us have some rum, which he consented to do, at three pence pr. glass. And then we drank more beer. Spratt came in and partook with us.” All which is truth as the Deponent shall answer to God. [A]143 Compeared also William Spratt who, being duly sworn and interrogated, deponed: That he was present with Welsh and Roper when Smith, rather unwillingly, let us have some rum to the amount of two shillings. “We had some beer likewise, in pints and quarts. We subscribed among ourselves afterwards to pay the money.” All which is truth, as Deponent shall answer to God.

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The Recorder addressed the Jury, who, after a short deliberation, returned a verdict [of] Guilty. Sentence: five pounds to the public funds, and to return the two shillings to Welsh.32 The President [Governor Caldwell] here addressed W. Smith in a severe manner concerning his violating the laws of the Settlement, and trusted that this would be a warning to him. But as there was some palliating circumstances he would remit part of the fine, because he thought it was his first offence. He should therefore take off four pounds, which was accordingly done, and Smith paid into court one pound, and to return two shillings to the Prosecutor Welsh.

The Public Welfare versus George Wells [Case 61] [Sale of Beer in Barracks] Jurors Sworn: Josh. Bird Thos. Firth Chas. Cook Geo. Ross Alexr. Work Albn. Fidler

Dond. McDonald Chas. Haywood Rt. Rowland Wm. Donald Jno. Folds Dunn. McRea

[A]144 Hugh Howell who, being duly sworn and interrogated, deponed: “I bought half a gallon of beer from George Wells in the barracks, for which I paid eight pence. I saw another person get beer there. Smith came in to Wells’ room, and saw me getting the beer, and told me I must inform against Wells.” All which was truth, as the Deponent should answer to God. Defendant: “I bought eight gallons of beer for eight shillings, and we were drinking. Smith came in, and I offered him a drink of it, which he refused. He saw me giving beer to the former witness.” This case did not go to the Jury, but [was] dismissed with a warning to the Defendant.33 [A]145

General Quarterly Court, held at the Court House On the Seventeenth of May One Thousand Eight Hundred and Forty-nine Present:

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Major Caldwell, Governor of Assiniboia, President Adam Thom Esqr., Recorder of Rupert’s Land Alexander Ross Esqr., Councillor of Assiniboia, JP John Bunn Esqr., do. do. JP Cuthbert Grant Esqr., do. do. JP

Madame La Rond v. Thomas Pixley [Case 62] [Trespass and Taking of Wood] The Plaintiff stated her case: that the Defendant had cut and carried off from her land a quantity of wood, and for which she laid her damages at £6. Jury: Mr. Dond. Gunn “ Frans. Dease “ James Tait “ Edwd. Mowat “ Martin Lavallé “ John Vincent

Mr. Robert Sandison “ Willm. Thomas “ Thomas Sinclair “ James Monkman “ Dond. Murray “ John McBeath

Baptiste Robillard who, being duly sworn and interrogated, deponed: That he saw the Defendant hauling the trees; that he met him on the tracks while hauling them. He counted the trees: 82 in number. They were maple trees. Saw them on Defendant’s [A]146 land afterwards. All which was truth, as the Deponent should answer to God. The Defendant pled that it was not him who cut the trees, but would not bring any witness to prove his assertion. The Jury, therefore, after a short time, without retiring from court, returned a verdict for the Plaintiff against Thomas Pixley with the costs viz.: to the Jury 12/, Witness, &c. 7/. Subject to the following arrangement to ascertain the value of the trees: One person to be nominated by Madm. La Rond, one by Thomas Pixley and one by Mr. Sheriff Alexander Ross, and the value set by these arbitrators to be paid by T. Pixley to Madm. La Rond.

[Public Interest v. John Tait] [Case 53b] 34 [Failure to Obey Jury Summons]

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John Tait appeared in court to shew cause why he had failed to answer to the summons of the Sheriff to act as juryman at the last court, when, after hearing his reasons, the Bench admonished him to be more careful for the future, and the fine recorded against him was cancelled.

Public Interest v. George Dahll [Case 64] 35 The same Jury as the preceding case. This case, by the consent of the Court and parties, was compounded, the expenses attending it paid out of the Public Fund, viz: witnesses: John Vincent 2/6, Thomas Vincent 2/6, William Taylor Jun. 2/6.36 [A]147

Public Interest v. Willm. Smith, Pensioner [Case 65] [Selling Beer Illegally to Indians and Others] The same Jury as the preceding cases. Antoine Ploofe accused the Defendant of having sold beer to Indians and others, contrary to the law. Alexé Delorm, being duly sworn and interrogated, deponed: That the Defendant had sold him beer before the Fêtes:37 two quarts at one time, and two quarts at another time. He likewise saw him sell beer to the Indians on the same occasion. All which was truth, as the Deponent should answer to God. Pierre Grandbois, being duly sworn and interrogated, deponed: That the Defendant had sold him one gallon and a half of beer before “Les Fêtes,” and sometime after Lent he again purchased two quarts from him. The Defendant was living at McDougal’s house when he got the beer the first time, and the last time he was living at Ploofe’s house. All which was truth, as the Deponent should answer to God. Iamthapeting (an Indian), being sworn according to the custom usually adopted in this Court,38 deponed: That he had bought beer from the Defendant long before Christmas, and has seen others buy some since that time. There was another Pensioner there who delivered the beer, but the Defendant took the money. When the last beer was sold to the Indians, the

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ice was getting bad and the Defendant was living on the Assiniboine River. Did not see the last sale of beer. Other Indians told him. All which was truth. An Indian woman sworn. But the Bench [A]148 interfered, as the evidence did not appear to define whether the sale of the beer was before or after the last Court. The case was accordingly dismissed.39

Antoine Ploofe v. William Smith, Pensioner [Case 66] [Taking Canoe without Consent] The same Jury as the preceding cases. Antoine Ploofe, Plaintiff, stated his case: that the Defendant was wishing to take his canoe to cross over the river, but he [the Plaintiff] did not wish to lend it, upon which the Defendant had struck him, and had taken his canoe away during the night after it had been sent across. The Defendant pled that he asked the Plaintiff to lend him the canoe, but he refused to do so, and began to abuse him; and that he had a right to the canoe, it being in the bargain between him and the Plaintiff when he hired his house that during the time he occupied his house he should have the use of his canoe. Magnus Brown, being duly sworn and interrogated, deponed: That on a Saturday evening “a man told me that Smith and Anderson, with their wives, were at the bank of the river and, thinking they might take my canoe, I went out to prevent it. I was but a short distance from Smith when I heard him ask the Plaintiff for his canoe, and distinctly heard him refuse to lend it. A short time afterwards, I heard the paddles knocking together, as if they were fighting with them, and heard [A]149 Smith say he would take the canoe. After some time I went out again, and saw Anderson and his wife on the bank, and Smith was already on the other side of the river. Anderson and his wife called out to Smith, whose wife answered. The next morning, the canoe was on the other side of the river.” All which is truth, as the Deponent should answer to God. Magnus Linklater was called upon by the Defendant to answer to the bargain about the house and canoe, but he had no knowledge of anything having been said about the canoe. The Recorder briefly addressed the Jury, who, without retiring, brought in a verdict for the Plaintiff. Sentenced to pay five shillings to the Public Fund, and expences, viz.: 3/16.40

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Louis Ploofe v. George Anderson 41 [Case 67] [Assault]42 The same Jury as the preceding cases. Louis Ploofe, being duly sworn43 and interrogated, deponed: That [as] he was returning home he passed by Anderson’s house. Anderson, “as soon as he saw me, began to scold me and threaten. And he then took up a piece of brick and threw it at me, on which I ran away from him. The piece of brick did not touch me. He then called to a Pensioner, who was coming towards me, to stop me, but I passed him and jumped over the fence.” George Anderson pled that he did not see Louis Ploofe on his way down. But on his way up “I heard him talking to my wife, and she called [A]150 out to me to come to her. And when he came Louis Ploofe began to use vile language, calling me “chemahganees boogre.”44 I told him if I could get a hold of him I would give him a good threshing, on which he took up a bone and threw it at me.” Nancy D’eau, being duly sworn and interrogated, deponed: That she saw Anderson run after Louis Ploofe. And after the latter had got over the fence Anderson threw something after him, and then ran after Ploofe, calling to another soldier to stop him. But Ploofe escaped the soldier who tried to stop him. All which is truth, as the Deponent should answer to God. John Irvin, being duly sworn and interrogated, deponed: That he saw Anderson running after the boy Ploofe. “He called to me to stop him. The boy got on the fence, and appeared happy at his escape.” All which is truth, as the Deponent should answer to God. Joshua Parks, being duly sworn and interrogated, deponed: That he saw the boy running past his shop. Heard the boy say “Chemahganees boogre.” “I ran out to see, and saw Anderson running after him.” All which is truth, as Deponent should answer to God. The Jury found Anderson Guilty of the charge. And the Court sentenced him to pay a fine of five shillings to the Public Fund and the expences.45 [A]151

The Honble. Hudson’s Bay Company v. Pierre Guilleaum Sayer 46 [Case 68] [Free Trading in Furs]

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On the Defendant being called to answer to the charge against him, a considerable time elapsed before he could be found.47 But on the assurance of Sheriff Ross that he was near at hand, the Court waited, and the Sheriff left the bench in search of him. ¶ But in place of the Defendant coming to the bar of the Court, James Sinclair, Peter Garrioch, and many others presented themselves as delegates from a great number of armed Halfbreeds who were outside the Court.48 James Sinclair handed a paper through the Clerk of the Court to the Governor.49 After the members of the Bench had read the paper, the Recorder asked Js. Sinclair in what capacity they appeared there. He answered “as delegates of the people.” ¶ The Recorder replied that they could not be received in a court of justice in that capacity, and then explained to them, from the Honble. H. B. Coy’s Charter, that as the Charter then stood the Company had the exclusive right of trade. And until that Charter was set aside by Act of Parliament, any person transgressing by trading was committing a breach of the laws.50 Sinclair here mentioned that many eminent characters in the Houses of Parliament in England entertained great doubts as to the validity of H. B. Coy’s Charter, and in support of which assertion he handed to the Bench a Times newspaper of the month of August last.51 After some further discussion, it was offered to Sinclair [by the Court] to plead for the Defendant Sayer, [A]152 and leave given for him and his party to withdraw to consult on the same; and the offer made by the Recorder to Sinclair that he might sit as foreman, and Garrioch on the jury if he wished to do so. All that he wished was a fair and impartial trial.52 The party then withdrew. After some considerable time, Sinclair appeared at the bar with Sayer.53 And the jurors who had sat on the former cases were still in the box. When Sinclair objected to five of them, and eleven others whose names were called, at last the Jury were as follows:54 Mr. Donald Gunn “ William Thomas “ James Tait “ Narcisse Marion “ Philip Kennedy “ James Monkman

Mr. John Vincent “ Robert Sandison “ Prospère Ducharme “ François Bruneau “ Martin Lavallé “ Dominique Ducharme

Magnus Linklater, Post Master in the Honorable H. B. Coy.’s service [who], being duly sworn and interrogated, deponed: That the Defendant

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brought the furs to the Company’s shop, and “I asked him if he had traded them. He replied that he had traded some, and the others he had hunted himself. He said he had killed some foxes. I did not take the skins from him at that time.” Cross-questioned by Sinclair: He did not say whether he had hunted the furs this year, or three years, or ten years past. All which was truth, as the Deponent should answer to God. [A]153 Louison Sayer,55 being duly sworn and interrogated, deponed: That he was out with his father hunting, and does not know that his father killed anything more than one red fox. “My father got a present from his relations of a few skins: 2 parchment skins, 3 cat skins, and one marten skin. He traded some furs from the Halfbreeds. Blankets was the principal article he traded with. I saw him give a dram of spirits to the people whom he was trading with.” Does not know if his father got any more furs in a present than those he mentioned before. All which was truth, as the Deponent should answer to God. Antoine Morin, being duly sworn and interrogated, deponed: That Chief Factor J. E. Harriott Esqr. of the H. B. Coy. “asked me if I intended to go out to trade, and if I did to come to him and he would give me advances for that purpose.” All which was truth, as the Deponent should answer to God. Alexé Goullet,56 being duly sworn and interrogated, deponed: That he had bought a horse from Chief Factor Harriott, and had told Mr. Harriott that he would pay him with furs he would trade. And he requested that I should not go near Doctor Todd’s fort. All which was truth, as the Deponent should answer to God. The Defendant here stated that when Mr. Harriott advanced him credit in the winter he forbad him to trade with Indians, but said nothing about Halfbreeds. Chief Factor John Ballenden Esqr. of the Honble H. B. Coy. denied this, as he himself had told him explicitly to be sure that he did not trade. And if he could not pay his debt in furs he would take salt from [A]154 him for the balance that might be due in the spring.57 And that it was solely on his recommendation that Mr. Harriott advanced him, as the character of the Defendant previously had been very indifferent, and Mr. Harriott did not wish to have anything to do with him.58 The Recorder, after summing up the evidence, addressed the Jury, and explained to them the rights of the HBC to the trade. The Jury withdrew,

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and after some time returned into court with a verdict that Pierre Guilleaum Sayer is Guilty of trading furs. The Foreman, Mr. D. Gunn, then addressed Chief Factor John Ballenden Esqr., as the Prosecutor in this case, recommending the Defendant to mercy, as it appeared that he thought he had a right to trade, as he and others were under the impression that there was a free trade. Mr. Ballenden immediately stated that the Company did not value the furs which had been traded, but it was the principle of the transaction which he looked at. But since a jury has now given a verdict against the illicit trading, he willingly acceded to the recommendation of the Jury, and should drop the other three cases.59 Commentary60 When the members of the court arrived at the courthouse that morning, they had found it surrounded by 250 to 300 armed and hostile Halfbreeds and Canadians, determined to frustrate this attempt by the Hudson’s Bay Company to enforce its questionable charter monopoly by judicial means. Governor Caldwell claimed after the event that he considered the prosecution unjust,61 and had feared that something like this might happen. It was to avoid such a confrontation, some thought, that he had chosen to hold the trial on Ascension Day, a Catholic holiday, in the hope that French settlers sympathetic to the accused would be in church across the river when the court convened. This being the third Thursday in May, a regular court day, that does not seem very likely, unless it was the reason John Ballenden chose to proceed at this particular session rather than in February or August. In any case, the Catholic mass was held early enough to permit worshippers to cross the river to the courthouse. The congregation had been warned about the significance of the trial in a letter from Father Georges Belcourt, recently moved to Pembina. The letter had been read to them after church on the previous Sunday by Louis Riel Sr, the father of Manitoba’s founder; and again this morning, Riel had been on the cathedral steps exhorting his neighbours to use the trial as an occasion to assert their rights in a manner that could not be ignored.62 They did so, strapping on arms and ammunition and pressing all available canoes and boats into service. Others had arrived earlier from the White Horse Plain, where Pierre-Guilleaum Sayer lived, and from other Halfbreed enclaves in the settlement.63 The demonstrators began to arrive about 9:00 AM, and by 10:30 “the banks of the river, above and below the Fort, were literally crowded with armed men, moving to and fro in wild agitation, having all the marks of a seditious meeting, or rather a revolutionary movement.”64 A group of leading figures among the protestors, including Peter Garrioch, had congregated at the home of James Sinclair, where according to Garrioch,

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A paper was drawn out to the effect that the people not only wished but demanded a stop put to the present legal proceedings until they heard direct from the British Government, believing that the Charter could not deprive the natives of this country of the right of hunting and trading with one another, and that until they had express orders from the Home Government to desist they would persist in the trade against all the force the Company could employ against them. Mr. Sinclair and eleven other delegates were appointed to hand this in to the Governor in open court.65 Rather than proceeding directly to court, however, the delegates decided to first approach the sheriff. Alexander Ross was watching the situation develop from the doorway of his home just prior to leaving for Fort Garry when “a deputation of the ringleaders called on me ... to announce the fact that they intended resisting the proceedings of the Court.”66 As he walked to the fort in the company of this delegation, he tried to persuade them to desist, but he encountered only firm determination to blockade proceedings. Ross said he heard that this formidable demonstration had been organized in response to a rumour that Governor Caldwell intended to have his Chelsea Pensioners attend the trial in full force.67 If that had been Caldwell’s intention, he thought better of it as the gathering throng grew larger and more vociferous. Before proceeding to the courthouse, the governor met with the other members of his court – Recorder Adam Thom and magistrates John Bunn, Alexander Ross, and Cuthbert Grant – at his quarters in the fort and asked the magistrates “whether they thought the well-disposed portion of the settlers would come forward and allow themselves to be sworn in as special constables.” Receiving a negative reply, and believing that his pensioners would not be able to defend more that the fort itself, Caldwell “saw no alternative but to let the affair take its course.”68 At 11:00 AM, the time set for the court to convene, he and the other members of the bench accordingly left the protection of the fort and shouldered their way through the angry crowd surrounding the courthouse, without even the customary small ceremonial guard of pensioners. The members of the court certainly did not lack courage, either in insisting on convening that morning or in pursuing a firm course against Sayer during his trial. Although the Halfbreed delegation had left their weapons with colleagues outside the courthouse gate, Ross could see from his position on the bench that they, as well as some of the jurymen, still wore their shot pouches and powder horns, as well as “gun covers dangling from their belts.” And, as the milling mob outside became more impatient with the two-hour palaver within, it dispatched two of its number to urge James Sinclair and his colleagues to leave. They tugged at Sinclair’s coattails and one of them – Louis Bruce – muttered to Thom, sotto voce, “You speak too much! We don’t understand you.” Two others threatened to shoot Thom on the bench.69 But Sinclair and his colleagues remained calm; Ross credited them with preventing a bloodbath: “Had it not been for the calm conduct of Mr. Sinclair and

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the influence of Mr. McCallum and Pascal Bréland the rush [of the crowd to remove Sayer and the defence delegation from the courtroom] would have been made.”70 Garrioch’s account was to the same effect, with the addition of a description of his own efforts in the cause of law and order: During the whole trial there was nothing but one murmur of discontent through the room, and a great many times the people called out, during Mr. Thom’s charge, to Sere [Sayer] to come out of that – that they didn’t understand what Mr. Thom was talking about. So fierce had it proceeded that Mr. Ballenden, the Hudson’s Bay Company officer, had to make use of my services to help to allay the ferment, and keep the people from coming into the Court and taking Sere out forcibly ... [T]he slightest spark would have kindled such a flame as would have sent some of them [on] a long journey.”71 The compromise outcome of the case, to which prosecutor John Ballenden agreed – a judicial ruling that free trading was illegal, in exchange for agreement not to punish Sayer or prosecute his colleagues – may have been initially considered by Ballenden to be a major victory for the company.72 That did not turn out to be the case, however. The court’s failure to impose any punishment was equated to acquittal by the crowd; and in its view acquittal meant that the HBC monopoly had been broken. According to Ross, “[O]ne of the jurymen, on reaching the court door, gave three hearty cheers, and in a stentorian voice bawled out: ‘Le commerce est libre! Vive la liberté.’”73 That chorus was picked up by the crowd outside, which “in the midst of yelling, whooping and firing, kept shouting over and over again, ‘Le commerce est libre! Le commerce est libre!’” The point of legal principle was drowned out by the feu de joie and trampled under the boots and moccasins of the colony’s victorious majority. Although technically mistaken, the triumphant crowd was correct in substance. As a practical matter, the company would never again be able to enforce its trade monopoly in the courtroom. Chief Factor John Ballenden, the prosecutor, acknowledged this in a subsequent report to London: “After the experience of last spring, anything like legal means to stop this infringement of the Company’s chartered rights would now be in vain in the courts of Red River.”74 The HBC Governor and Committee agreed: “All that can be done, we think, is to increase the number and strength of the frontier posts, and reduce the price of goods traded with the Indians for furs – in other words, give higher prices than our opponents do.”75 Some years later, Sir George Simpson wrote, “This ill-judged proceeding did great mischief. It proved the Company’s inability to enforce the law, and gave the people a consciousness of their strength.”76

[In the Case of James Calder] 77 [Case 49b] [Court’s Jurisdiction in Peace River Country]

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William Cochrane and Robert Sutherland hereby promise and bind themselves in a bond of ten pounds sterling each, for the safekeeping of James Calder78 in open court this seventeenth day of May, one thousand eight hundred and forty nine. District of Assiniboia, Red River Settlement. [A]155

General Quarterly Court, held at the Court House On the Sixteenth of August One Thousand Eight Hundred and Forty-Nine Present: Major Caldwell, Governor of Assiniboia, James Bird Esqr. Councillor of Alexander Ross do. do. “ Andrew McDermot do. do. “ J. P. Pruden79 do. do. “ Cuthbert Grant do. do. “

President do. do. do. do. do.

Thomas Brown versus J. Omand [Case 69] [Ownership of Mare] Thomas Brown stated that his wife had come up to Mr. Green’s house about the beginning of June with his father, driving a mare which he had got from Hugh Polson; and while at the said place, J. Omand took away his mare against his will, and had forcibly kept her. And for which he now came into court to claim the return of his mare, and estimated his damages at the sum of five pounds, five shillings. The Defendant pled that he was servant to the Revd. John Macallum, that about the time stated by the Plaintiff he was at work, “when two of the young gentlemen belonging to my master’s establishment came and informed me that the young mare belonging to Mr. Macallum, which had been lost [A]156 a considerable time, [sentence incomplete]. I immediately went to look at the mare and was sure she belonged to my master. I returned home and informed him that the young mare he had lost was at Mr. Green’s place; on which he told me that if I was quite sure that the mare was his, to return and take her, and that he would stand all consequences. On which I returned, and seeing Mrs. Brown on her way towards the Fort I sent after her to inform her that I had my master’s order to take the mare. She requested that I would wait till Henry Brown would arrive. I told her I was only a servant, and was bound to obey my master’s orders. And then I took away the mare.”

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Jury: Mr. F. Dease “ John McDonald “ François Bouvette “ Morrison McBeath “ Alexr. Bannerman “ Louis Cyre

Mr. Dond. McDonald “ Willm. Taylor “ François Bruneau “ Willm. Scott “ Thos. Firth “ J. Omand80

William Henderson, being duly sworn and interrogated, deponed: That he cannot swear that the mare in question is actually the mare that Hugh Polson had, “but so far as I can say I think it is.” All which was truth, as the Deponent should answer to God. Compeared also Hugh Polson who, being duly sworn and interrogated, deponed: That when the mare in question was about six or seven months old [A]157 in the spring, before letting her go at large, her ear was punched with a shoemaker’s punch (the instrument was shewn in court) for a mark, and a little worsted was put through the hole, but [sic] she was frequently seen during the summer, and about November or December she went astray with other horses. But as some people were going for fish to Manitoba Lake [they] saw her, and I hired some of them to bring her home, which they did, and she then had a piece of the worsted still remaining in her ear. When brought home she was put in the fields and wintered in my stable in the spring. ¶ She went off again with my father-in-law’s horses, and was seen frequently at the Frog Plain. She had a piece of tea chest line about her neck when she left, which she had on her. When she returned she remained, now in company with Thomas Thomas’s horses, and strayed off again with them. Falster went off to seek T. Thomas’s horses, and brought them home. I asked him to fetch mine, which he said he would do after a day’s rest. A short time after, word came to me that a large band of horses had been driven into Rt. McKay’s field, on which I went there, and we caught her. ¶ I led her away as far as G. Bannerman’s byre, when a lad of J. Flett’s came there, and I asked him to look at my mare. Not that I had any doubt about her being mine, but, as I told him, that when I put her out in the spring she was rough with her old hair, and to see how she was improved – that he himself could scarcely know her. There was another one with the band of horses which resembled mine a little, and we went to look at her also, after we had secured mine in the stable. Afterwards we came back, and I asked the lad to assist me down with the mare, which he agreed to do, saying he never saw a horse yet that he could not ride. And he rode her down to my house and

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she remained with me until I changed with Plaintiff.” [A]158 All which was truth, as the Deponent should answer to God. Compeared also Neil Henderson who, being duly sworn and interrogated, deponed: That he had known the mare since Hugh Polson has had it. It was about seven months old when he bought it. “In the spring she went off with my father’s horses. During summer, I saw her frequently at Frog Plain. She passed the winter at the house, and in the spring she strayed off again with Thos. Thomas’ horses, and remained away about two or three weeks, and returned with a piece of line about her neck which she had on when she left. And was in the possession of Hugh Polson till he changed with T. Brown.” All which was truth, as Deponent should answer to God. Compeared also Samuel Henderson who, being duly sworn and interrogated, deponed: That: “The mare in question has been these two years about my premises, and during that time I have seen her almost every day. And although I do not like to swear, yet I have no doubt in my mind that she is H. Polson’s.” All which was truth, as Deponent should answer to God. Compeared also Thomas Brown who, being duly sworn and interrogated, deponed: That the mare, since he got her in the winter from Hugh Polson, had never been from him till it was taken by Omand. All which was truth, as Deponent should answer to God. For Defence: James McKenzie, who being duly sworn and interrogated, deponed: That the only evidence he had to give concerning the mare in question [A]159 was a mark – a kind of curve on the tip of the right ear – “which I observed the winter previous to that she was lost. She was lost about a year and a half. I am not sure – it might not be quite a year.” All which was truth, as the Deponent should answer to God. Compeared also Alexander Black who, being duly sworn and interrogated, deponed: That he and J. McKenzie, the winter before last, went to Mr. McAllum’s stable to break in the mare in question. “And while we were fixing on the bridle we noticed a mark on the tip of the right ear, but cannot say whether it was a natural or an artificial mark. It is a kind of curve on the tip of the ear. I think the mare was lost a little more than a year.” All which was truth, as the Deponent should answer to God. Compeared Abraham Moore [who,] being duly sworn and interrogated, deponed: That the winter before last he perceived two marks on the mare.

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One is that on one of her hind legs she has a few grey hairs, but cannot say which. The other mark is a lump on the right jaw. All which was truth, as Deponent shall answer to God. Compeared also George Lyons who, being duly sworn and interrogated, deponed: That when Omand brought home the mare from Mr. Green’s, Mr. McAllum said: “If the mare is mine I shall know her from her habits.” And on his going up towards the mare she laid back her ears as if intending to bite. And on the bridle being taken off and the stable door opened, she went to the stall where she used formerly to stand. (“As I was told, but I was not at Mr. McAllum’s when she was there before.”) All which was truth, as the [A]160 Deponent should answer to God. After the evidence had been read over,81 the Court recommended the Jury to inspect the mare. And after a short deliberation they returned a verdict for the Defendant.82

James Doherty versus George Anderson 83 [Case 70] [Criminal Assault] The same Jury as the preceding case. James Doherty stated that on the 7th July, between the hours of one and two o’clock, he was passing the house where Anderson lives. His [Anderson’s] wife was at the door, and muttered something. And as he looked round, Anderson came out of the door followed by his wife, [as well as] Smith84 and his wife – who all, in a manner, surrounded him – when Anderson struck him four or five times, and knocked him down and cut his face all over. And that Anderson’s wife threw stones at him. And Smith was calling out to murder the b ... r. And that Smith’s wife scratched him. The Defendant pled that he only defended himself, and requested that all the witnesses on both sides should be put out of court – which was granted by the Court, and the case proceeded.85 Corporal Rice, being duly sworn and interrogated, deponed: That he was standing near Parks’ house when he saw James Doherty [A]161 coming past, and Anderson’s wife began to abuse him. Doherty said to us that it was a hard case that he could not pass without being abused. Anderson came out immediately and went to Doherty, and a fight took place, Doherty was knocked down. Anderson’s wife kept throwing stones at Doherty, and Willm. Smith came also and called out to Anderson: “Kill the b ... r – I dare

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not touch him myself.” Then Doherty got up and returned back towards his own place. All which was true as the Deponent should answer to God. Compeared also William Monk [who], being duly sworn and interrogated, deponed: That as he was going across the field towards Anderson’s he saw Mrs. Anderson come out of the house and throw mortar or mud at Doherty, and then Anderson came out and struck at him, and, while he was in the act of striking, Doherty, threw his frock over his hands; but he still kept beating him up against the house. And then Mrs. Smith came out and made a claw at him and scratched his face. He was so much beaten that he laid his frock down and laid on it. Corporal Rice was standing by the greater part of the time, and was with Doherty. All which was truth as the Deponent should answer to God. Compeared also Joshua Parks [who], being duly sworn and interrogated, deponed: That on the 7th July he saw a row at Anderson’s. “But when I got nigh they were done. Doherty was retreating from the wall, Corporal Rice with Doherty, and Deponent went to Mr. Ross.86 I saw Anderson in the act of striking and kicking Doherty while he lay on the ground, [A]162 and I told him I would not suffer him to do so.” All which was truth as the Deponent should answer to God. Compeared also John Smith 2nd [who], being duly sworn and interrogated, deponed: That as he was passing by Anderson’s house he saw a crowd of people, and he saw Anderson fighting Doherty – but why he cannot say. Doherty appeared to be very ill used. His face was much cut, but by whom he could not say. All which was truth as Deponent should answer to God. For the Defence: Alexander Watson, being duly sworn and interrogated, deponed: That as he was going home from work Anderson asked him (the Deponent) to become security for him, to which he consented, and was in the act of starting for Mr. Ross’s. Doherty came past the door, when Anderson’s wife said to him: “You will now be contented since you have got my son-in-law in prison.”87 Doherty immediately pointed his fist in her face, and said: “he’d be d ... d but he would have them all in prison.” He then saw Mrs. Anderson stoop down and took up something, and throw it at Doherty. He turned round as if he was going to strike her, when her husband said “strike me.” Doherty lifted his chin and offered to strike him, but whether he did or not he could not say. Anderson now fought away at Doherty till he got him up against the wall, when Mrs. Smith came out and caught Doherty by the hair of the head which he, the Deponent, prevented, telling her it was a fair

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fight, and to let them alone.88 They both fought a long time, when Anderson knocked down Doherty and stood over him. [A]163 Parks told him not to strike him while he was down. Anderson said he was too much of a man to do that. All which was truth as the Deponent should answer to God. Compeared also Ann Smith (Nancy Walking Chief) [who,] being duly sworn and interrogated, deponed: That as Doherty was passing by Anderson’s he took up something to throw at Mrs. Anderson, at the same time pointing his fist at her. Anderson got up from table and ran out to speak to Doherty, but Doherty made a blow at Anderson, but he bent his head and avoided it. But he struck a second blow, which struck Anderson on the forehead. He then returned the blow and knocked down Doherty. He got up, and Parks’ wife and Little Smith wiped some blood from his face. All which was truth as the Deponent should answer to God. After the evidence had been read over, the Jury retired for a short time and returned into court with a verdict for the Plaintiff. Sentence of the Court that George Anderson pay ten shillings fine and the expences fine

27.0 10.0 £1.17.0

Mrs. Doherty v. Mrs. Anderson [Case 71] [Perhaps Assault and Battery and/or Defamation] The Jury were sworn, and Mrs. Doherty stated her case, which she failed to prove by her witnesses, was nonsuited, and paid the expences of the Court attending her case.89 [A]164

General Quarterly Court, held at the Court House On the Fifteenth of November One Thousand Eight Hundred and Forty-Nine Present: Major Caldwell Governor of Assiniboia, President Alexander Ross Esqr. Counsellor of Assiniboia Andrew McDermot “ do. do. John Peter Pruden “ do. do. Cuthbert Grant “ do. do.

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David Charboneau versus Narbère Landré [Case 72] [Ownership of Capot] The Plaintiff stated that he was in the house of Bruneau one evening fulling cloth,90 and took off his capot91 to work with more freedom, as did also the Defendant, who was there likewise for the same purpose. After having finished their work they were to resume their capots, but the Plaintiff could not find his own one. But searching about the house he perceived that the Defendant had it on. He no sooner perceived it than he requested him to return it to him, the Plaintiff – which he refused to do, and threatened to give him a thrashing if he persisted in claiming his capot. He therefore [A]165 appeals to this Court for the restitution of his property. Defendant pled that all the facts, relative to time and place, as stated by the Plaintiff were correct; but as to the capot, it was his, and he would be able to prove so by his witnesses. And that he had taken his coat off first and the Plaintiff after him, and laid them on the same bed, one on the other. And after the work was over Plaintiff put on his capot first. The following Jury was then sworn: Mr. Francis Dease Mr. Willm. Stevenson “ Martin L’Vallé “ Louis Thebeault “ Alexé L’Esperance “ John Harper “ Louis Ayotte “ Joseph Guilbeau “ Alexander Work “ Louis Bernard “ Antoine Carron “ Peter Flett Madame Charboneau, who being sworn and interrogated, deponed: That on a Monday, the month & date [she] does not recollect, her son the Plaintiff put on his capot and went to reap at the Bishop of [illegible abbreviation], and it rained on that day. “That same evening I examined his capot to see that it was not injured. He then went to Bruneau’s house to full cloth, and did not return till late in the night. And I heard the Defendant say to my son at the door that if he said anything more about the capot he would give him des tapp [taps?].92 I examined the capot next morning, and could not see any of the marks which I had observed on my son’s coat the day and evening before. I was convinced it was not my son’s.” All which was truth. [A]166 Compeared also François Bruneau who, being duly sworn and interrogated, deponed: That on a Monday in September the Plaintiff and

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Defendant came to his house to full cloth. They, while waiting, began to play out of doors and wrestle; and they took off their capots and sent them into the house by children – or took them in themselves, cannot say which. When they had finished fulling they were to put on their coats. Either Landré took a capot, or one was given him by someone in the room, and the Plaintiff was searching for his in a bed. “My wife told him that she was afraid he would awake the children, and that she would look for it, and she gave him one she found there. On putting on the capot he said: “This is not my capot – the sleeves are too big.” He then asked Landré for the capot he had on. The Defendant refused to do so without examining it to see if he had made a mistake. ¶ Seeing the Plaintiff looking very dull at supper, someone remarked it was on account of the loss of his capot. We then thought it best to look at both capots. On examining the coat which Landré had, we perceived it had some dried mud or sand on it – likewise some dung – which he accounted for by having killed an ox. On our examining the coat he shewed us a mark, which he said was made with a piece of chalk. I asked him who marked his capot. He replied: ‘It was my grandmother or the wife of Benjamine Lajamonier.’ I examined the mark by the candle, and perceived that the mark was not made by chalk, but a white woolen thread worked in the [A]167 cloth of the capot. Charboneau said his capot had the facing only part of the way down, and that his, the Defendant’s, had it all the way to the bottom. Defendant remarked that all capots were alike, and exhibited the one he had on as a proof of his assertion; but the facing only went part of the way, as the Plaintiff had stated his to be. Notwithstanding, the Defendant persisted in keeping the capot, and told the Defendant that he would have to gain it before he would give it.93 The capot that the Defendant had on when I examined it had a notch or slip made, as it were, by a pair of scissors or some other sharp instrument.” All which was truth as the Deponent should answer to God. Compeared also Thomas Harrison who, being duly sworn and interrogated, deponed and corroborated all the preceding witness had stated as far as he was present, he not having been in the house all the time. Compeared also Roman Lagimonier who, being duly sworn and interrogated, deponed: That Landré only spoke of marks on his capot as they would arise before him on examination of it, and not until he had seen them.94 “I examined the two capots, but could not perceive great difference between them.” All which was truth. Compeared also Betsy Charboneau who, being duly sworn and interrogated, deponed: That the Defendant shewed reluctance to come before the magistrates to settle the affair.

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[A]168 For the Defence: Mary Anne Lagimonier, who being duly sworn and interrogated, deponed: That: “The same day that the Defendant bought his capot – when he brought it home – I examined it. I perceived a mark on the left side of it. I did not think it was a good (or secure) one, but on looking more closely into it I perceived it to be what might be termed a natural mark or one there without design. The Defent. was invited to full cloth one evening, and the next morning he informed me that he had had a dispute about his capot: they said this capot was David’s (the Plaintiff). I took the capot from him and examined it, and found it had the mark which I saw when he first bought it. The mark was a white one, in shape of a S (en esse) on the left side at the bottom of the capot.” All which was truth as the Deponent should answer to God. Compeared also Benjamine Lagimonier who, being duly sworn and interrogated, deponed: That two days before this affair took place: “My son & Landré were together and looking at their capots. I heard my son say to the other: ‘Your capot is well marked.’ The young man Landré was my servant. I sent him for an ox I intended killing. When he returned I saw that his capot was soiled with [A]169 dung. The next day, he went with me to carry the beef of the ox I had killed. He gave me his capot to hold, and while holding it I perceived that the sleeve linings were of a violet colour. At the Rivière la Seine my man Landré helped me and others to lift a piece of timber that was all over sand and dried mud. While I was attending to my work Charboneau came to my place, and Landré said: ‘Have you come for that which I promised you?’ He answered: ‘No but I have come for my capot.’ Landré replied: ‘The capot was not yours last night, and I have had it examined this morning, and it is mine.’ I asked my man to let me examine his capot. I saw the lining was the same colour as the one I had carried for him the time before, and the dung was still perceptible. I asked Charboneau to tell me what marks he had on his capot to know it by. He said: ‘None.’ I again asked him, two or three days after, the same question, and he still said ‘None.’” All which was &c. Compeared also Louis Cyre who, being duly sworn and interrogated, deponed: That he saw the man Landré at Rivière La Siene, and that he helped him to lift a piece of timber, by which he got some mud on his arms from the wood. “When I heard them speaking of the capot the next day, on looking at his capot I saw the mud still remaining dried on it.” All which &c., &c. Verdict for the Plaintiff with costs:

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Expences Fine for detention of capot95 Total

£1.10.6 0.10.0 £2.0.6

[A]170

Pellan v. D’Lorme [Case 73] [Seduction and Loss of Domestic Services] Plaintiff stated that the Defendant had taken advantage of his daughter’s weakness of intellect, and had seduced and had a child by her. He had therefore brought this action forward for compensation for the loss of his daughter’s services,96 which he estimated at £20 Stg.97 Jurors sworn for the above case: Mr. Wm. McMillan Mr. John Lyons Junr. “ John Vincent “ [blank] La Fertie “ John Pritchard “ Abram. Bernabé “ Emanl. Champagne “ Wm. Tate “ Robt. McBeath “ Angs. Matheson “ Josh. Richard “ François Boudon Mary St. Germain, who being duly sworn and interrogated, deponed: That the first time she was called to visit the girl she (the girl) was sick. She put her hand on her abdomen and perceived a movement internally, and she immediately told her parents “that their daughter was with child, and that it was not anything connected with any general female complaint, but that which I informed of and nothing else.” Three nights after the above, “they sent for me again, and the child was born. [A]171 I was sent for again, and during the time I was there the girl said: ‘That nasty old D’Lorme is the cause of my suffering this sickness.’” All which was truth as the Deponent should answer to God. Compeared also Margaret Grandbois [who,] sworn and interrogated, deponed: That she asked the young woman who was the father of her child, when she: “replied that it is D’Lorme.” And that it happened by her mother’s sending her for wood – that D’Lorme saw her and forced her, and put his hand on her mouth to prevent her calling out. All which was truth as Deponent should answer to God. Compeared also Angelique Pellan, mother of the girl, who, being duly sworn and interrogated, deponed: That she suspected there was something between her daughter and Defendt., as one evening he brought some rum

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there and drank with her husband, [and] during the evening he went to the bed where the children were, and one of them called out that someone was touching her. On which she went to the foot of the bed and sat there, and while sitting there she saw D’Lorme put his hand towards her other daughter (the one now present). When she saw this she made her daughter rise from her place, and she then sat there the whole night watching.98 Did not like to turn him out for fear of his being froze – he stayed all night. [A]172 Sometime after, this Defendant came down and asked her if it was true that she had spread reports concerning him and her daughter. “Did not like to shame him, and therefore only asked who had told him. He, however, endeavoured to persuade me that it was a false report, and begged of me not to tell his wife.” All which was truth as the Deponent should answer to God. Compeared also Jenneveve Pellan 99 who, being duly sworn and interrogated, deponed: That on a certain day her mother sent her for some fire wood to the woods, and there the Defendant came to her, and tied her hands and stopped her mouth with his hands, and did then force her to his wishes. Had never told anyone that Defendant had promised to give her a gown. All which was truth &c, &c. Compeared also, for the Defence: Baptiste Demarrais, who, being duly sworn and interrogated, deponed: That the son of the Plaintiff informed him, without his asking him the question, that his father asked his sister who the father of the child was, and she named another person, and not the Defendant.100 All which was truth &c, &c. Compeared also Alexé D’Lorme [who,] being duly sworn and interrogated, deponed: That sometime last spring he saw Jacques Vallette in bed with the Plaintiff’s daughter Jenneveve, but saw nothing further. Cannot say whether any criminal transaction had taken place. All which was truth &c. [A]173 Compeared also Jenneveve Versailles who, being duly sworn and interrogated, deponed: That Jenneveve Pellan told her that she had slept six times with Jacques Vallette. She informed me of this after the birth of the child. She told me before the birth that if she was with child Jacques Vallette was the father of it, and that he gave her a piece of sugar. All which was truth as the Deponent should answer to God. Compeared also Bergie D’Lorme who, being duly sworn and interrogated, deponed: That Jenneveve Pellan told him that the child belonged to

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Jacques Vallette. “I asked her the question, but did not use any threat. We were alone when she told me.” All which was truth as the Deponent should answer to God. After reading over the evidence, the Jury retired, and after some time returned a verdict for the Plaintiff, including costs £10. Verdict: Costs

£8.0.0 £2.0.0 £10.0.0

James Short v. Dond. Bannerman [Case 74] [Breach of Contract or Frustration of Contract] The Plaintiff stated that he had changed a horse with the Defendant for a mare, but as the mare at the time was loose in the plains he did [not] get her, as she was not to be found. “After some time I went down for my mare, and it could not be [A]174 found, as the Defendant informed me. Yet I have been informed that the mare was in his stable at the time I went for it. Late in the year the Defendant came up to the White Horse Plain and brought up the horse I had given to him for his mare. He put up for the night at Hugh Ross’s house, and sent over to my place the horse by a small boy who fastened it at my stable door. I saw the horse in a most wretched condition, and of course refused to receive him. And I went over to Ross’s, where I saw Defendant and told him I would not receive him. I now claim the mare for which I changed with him.” The Defendant pled that the original bargain between them was in substance the same as stated by Plaintiff, but that the bargain was broken the first time he came down for the mare, when she could not be found. The Plaintiff then agreed to take back his horse, but could not take it with him at that time, as he was not shod and the ice being bare of snow. “He did however subsequently send down his brother-in-law for him, and I delivered the horse to him. And he took it from me and led him down the bank, and how much farther [I] cannot say.” After delivering up the horse [he] did not think he had any right to look after him. However, he promised the Plaintiff to hire an Indian to bring him up from the rapids, “and I took him up to the Plaintiff as I promised him to do.”

James Taylor Solomone Amlin

[A]175 Jurors sworn: Alexé Berland [blank] Jervais

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Joseph Guilbeau Baptiste Gardepuis George Munroe John Harper

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Alexander Work Maximilian Dauphine Louis Thebeault Bapte. L’Espèrance

Baptiste Goslin, who being duly sworn and interrogated, deponed: That on or about the latter of November or the beginning of December, 1847, he was one day with the Plaintiff when he said he was going to the Defendant to change horses. The horse was in good condition then. “I saw the horse again when Defendant brought him back in the month of March. He was then in a most miserable state.” All which was truth as Deponent should answer to God. Compeared also Ignace McKay who, being duly sworn and interrogated, corroborated the former witness as to the state of the horse when delivered to Defendant, and when returned. Compeared also Donald Murray who, being duly sworn and interrogated, deponed: That in the month of October, the same day which Plaintiff gave his horse to Defendant, he examined the horse in question, and he was then in good condition. And he saw him straggling about his place a short time after New Year’s Day in a most wretched condition. All which was truth as Deponent should answer to God. [A]176 For the Defence: George Bannerman, who being duly sworn and interrogated, deponed: That he was at his brother’s (the Defendant) house when the horse was brought, and thought him very poor. He was also present when the Plaintiff’s brother-in-law took the horse away. I saw him lead him towards the river, a distance of 3 or 400 yards from where he took him from. All which is truth as Deponent should answer to God. Compeared also Joseph Kertan who, being duly sworn and interrogated, deponed: That on the first day of 1848 the Plaintiff offered to sell him a horse, which he said was at Defendant’s place, for a gallon of rum, “which I refused. He then asked me if I would keep a horse for him, which I agreed to do, and asked him where it was. He replied ‘at Dond. Bannerman’s,’ but when I applied for it there Defendant informed me that it was not there.” All which was truth as the Deponent should answer to God. After [the Clerk’s] reading over the evidence to the Jury, they retired, and then brought in a verdict for the Plaintiff, leaving to the Bench to determine

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how much damages Plaintiff was entitled to. After some consideration the Bench awarded to the Plaintiff £4.0.0 and costs. [A]177

General Quarterly Court, held at the Court House On the Twenty-First day of February One Thousand Eight Hundred and Fifty Present: Major Caldwell, Governor of Assiniboia, President Alexander Ross Esqr. Counsellor of do. J. Peter Pruden Esqr. do. do. Cuthbert Grant Esqr. do. do.

Hugh Matheson versus Adam Thom Esq. [Case 75] [Nonpayment of Carpenter’s Account] The Plaintiff stated that he had made a verandah for the Defendant, [for] which he charged £25, and which sum the Defendant refused to pay. The Defendant pled that the Plaintiff had never sent in his bill for the work he had done, but had simply demanded £25 verbally of him. And under those circumstances he had resisted the demand and appealed for the legality of his resistance to the opinion of the Bench. The President acknowledged the legality of the Defendant’s appeal and [A]178 the Plaintiff was accordingly nonsuited. Commentary Despite the brief, bland, and uninformative nature of the official record in this case, the trial revealed much about the characters and interrelationships of four members of the General Quarterly Court. Those revelations are contained in a much fuller account of the trial, which, although suppressed in the formal court record by someone (Adam Thom?), was carefully recorded and transmitted to London by someone else (Governor Caldwell? Sheriff Ross? Court Clerk Smith?).101 The suppressed record reveals that Thom decided to add a veranda to his house, and had plans prepared by HBC clerk of the works Chrisholm. When asked by Thom, Chrisholm estimated that the cost of building the veranda would be “about £25.” Thom then asked Matheson, who had done previous work for him, to do the job. While there is no indication that Thom and Matheson ever agreed upon, or even

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discussed, the cost in advance, it seems likely that Matheson also spoke to Chrisholm and got the same cost estimate. When the work was completed – to Thom’s admitted complete satisfaction – he asked Matheson for his bill. Rather than presenting a written invoice, Matheson simply told Thom verbally that his price was £25. Thom thought he was being overcharged because he had interpreted Chrisholm’s estimate as including everything, labour and materials, and he appears to have provided the materials himself; whereas Matheson charged that sum for labour alone. Thom therefore insisted on an itemized account. Matheson got stubborn and refused – perhaps he couldn’t write – and Thom refused to pay. In view of the impasse, Matheson sued. When the trial opened, Sheriff Ross left the bench and took a seat in the audience. His reason for doing so was that Matheson was his son-in-law. Cuthbert Grant, who may not have known of the relationship, was puzzled and apparently annoyed by this. Unable to get an explanation from Governor Caldwell, Grant temporarily left the bench himself and spoke quietly to Ross about his reasons. After doing so, and before he could resume his place on the bench, Grant was requested by the governor to call a jury. He complied by assembling a mixed French and English jury. Thom objected, not unreasonably, to having any French-speaking jurors, on the ground that neither party was French, and most French jurors would be unable to understand what was said. Grant got upset at this point and threatened to leave the bench. He thought better of the idea, however, when Caldwell invited him to leave if he wished. An anglophone jury was then called, but when the clerk was about to swear them in, Thom, who had been commenting condescendingly all along about the irregular procedures being followed without his guidance as recorder, observed that it was not customary to swear the jury until the parties had made their opening statements. He added that after Matheson had heard Thom’s statement, he might not want to have the jurors sworn anyway, since he would then know that he would lose and would have to pay jury fees. So the trial proceeded with an unsworn jury. Matheson stated his case simply; Thom did so copiously. Part way through Thom’s presentation, Grant interjected, telling the suspended recorder “in an excited manner ... not to preach so much ... [and] to tell the Jury why he did not pay.” Grant also remarked, “[W]e ... [do] not want law, but justice.” Thom fired back that he was sorry to hear a member of the bench express the latter opinion; and when Grant charged him with picking the jury himself, Thom lost his temper, “stamping his foot” and objecting to “the insinuation and the source from whence it proceed[ed]!!” (exclamation marks in original). Grant warned him to “[t]ake care what you say” – a caution most would take seriously from the victor of Seven Oaks. Thom then seemed to regain control of his anger and continued his presentation, telling about his supposition that he and Matheson placed different interpretations on the cost estimate they had both received from Chrisholm – Thom construing it as all-inclusive and Matheson treating it as referring only to labour costs. And then

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the recorder-litigant turned to law, being careful to remind the court at the outset that he was the “only lawyer in the Settlement.” He read “from some law book upon contracts” to the effect that a claim, to be valid, required something “specifying the amount of labour and work performed.” He claimed that he had turned down an offer by Matheson to reduce the price because he was willing to “pay the full value” but not to “pay an overcharge,” which he said was being demanded of him “because it ... [is] supposed that ... [I] would not dare to come into court with the strong public opinion against ... [me].” While Thom was speaking, Cuthbert Grant again left the bench to confer with Ross in the audience. Returning to his chair, he asked the plaintiff whether he had an account (presumably with him in court). Thom, who had not yet finished his opening statement, exploded, demanding of Grant “in a most imperative manner, twice repeating the question ... Who told you there was an account, Sir? How came you to know there was an account?” Turning to Caldwell, Thom argued that it was too late to produce an account at this point in the proceedings. Governor Caldwell agreed that it would be “irregular,” and went on to say that although he was “not so well acquainted with civil law” as with military law, “as far as he ... [understood] it he fully ... [concurred] in the argument.” Thom thereupon picked up his hat and began to walk triumphantly from the courtroom. Ross, who could restrain himself no further, called out to Thom to respond “to one or two points,” but the angry though victorious lawyer refused to answer as he stormed out of the room. Some Canadians and Halfbreeds pursued Thom with a view to hauling him back, but Grant stopped them. Ross, “much excited,” told the audience: “Go home, for there ... [is] neither law nor justice [here].” According to Caldwell, Ross later expressed publicly the “injurious” opinion that Thom “ought to have been placed in one of the cells for having tried to leave the Court” and that Caldwell was remiss in not preventing him from leaving. The governor’s response was, “I am not prepared to say how far the Recorder acted improperly in leaving the court in the abrupt manner that he did. This much I can say: that I should not have sanctioned it, but that I feared the intemperate conduct of the parties would, from argumentum ad hominen, have proceeded to an argumentum ad baculinum,102 which constrained me to submit to the withdrawal of the Recorder from court as the lesser evil.”103 Courtroom discourtesies and shouting matches were not the only regrettable features of this extraordinary case. Three days before the trial, Thom, who as a lawyer and judge should certainly have known better, had written to Governor Caldwell, the president of the court, to explain his position in the dispute.104 In a rare display of good judgment, Caldwell returned the letter unread, commenting as he did so that he had previously declined a request from Matheson to discuss the case, and did not want it said that “I would not hear the poor man’s story, and read the rich man’s statement.”105 Did Matheson ever get paid anything for his work? He was probably paid whatever amount Thom thought was properly due, since Thom’s unread letter to

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Caldwell had stated that he would pay an undisclosed amount “[w]hatever may be the result on Thursday.” Was Thom’s position legally justified? The parties seem to have had a contract for the construction of the veranda but not to have agreed on the price. In such a situation, the proper decision should have been in favour of the plaintiff for damages to be assessed on a quantum meruit (true worth) basis rather than the nonsuit solution Caldwell ordered. This could indeed have been the undisclosed solution that Thom proposed himself.

Watson versus Wm. Smith (Both of the Royal Pensioners) [Case 76] [Defamation] The Plaintiff stated that he had raised this action on account of the Defendant having defamed his wife by calling her a whore,106 and laid his damages at £10. The following Jury being duly empanelled, namely: 1. Narcisse Marion 7. Wm. Sutherland 2. Joseph Bird 8. Geo. Sutherland 3. James McKay 9. Heny. Brown 4. Charles Fidler 10. [blank] Jeanvienne 5. Hugh Polson 11. Alban Fidler 6. Willm. Taylor 12. Michell Dumas William Spratt, who being duly sworn and interrogated, deponed: That he was present when Defendant called the Plaintiff’s wife a whore several times. “The last time I heard him [tell] the Plaintiff: ‘Watson, your wife is a whore.’” All which is truth, as Deponent shall answer to God. Compeared also James McCormac who, being duly sworn and interrogated, deponed [A]179 that he was in the house and heard a quarrel, and heard the Defendant, who was in a state of great excitement, call the Plaintiff’s wife a whore. All which was truth, as the Deponent should answer to God. Compeared also Mary McCormac who, being duly sworn and interrogated, deponed: That she was at the stove working when she heard the Defendant call the Plaintiff’s wife a whore – Mitchell’s whore – and that the Plaintiff was Mitchell’s cuckold. All which was truth as the Deponent should answer to God. Compeared also George Welsh who, being duly sworn and interrogated, deponed: That the Defendant came into his room, and he and the

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Plaintiff’s wife began to quarrel – something about a child’s frock. Deponent immediately pushed them out, and heard Defendant call Plaintiff’s wife a whore. All which was truth, as Deponent should answer to God. Compeared also Ann Welsh who, being duly sworn and interrogated, corroborated the whole of the last witness’s statement. For the Defence: Robert Bailey, Corporal of the Royal Pensioners, who, being duly sworn and interrogated, deponed: That he heard the Defendant call the Plaintiff’s wife a whore, and that on the second night that the Plaintiff was in the Fort he was called on [A]180 by George Welsh to put out a man by name John Mitchell, who was beastly drunk and laying on Plaintiff’s bed. Plaintiff’s wife was in the room with only her chemise on. They were both in a very indecent state. “I put Mitchell out of the Fort. On the next night I was called on again to put out the same man. The Plaintiff was then beating his wife, and called her a whore.” All which was truth as Deponent should answer to God. After the whole of the evidence had been read over [by the Court Clerk] to the Jury they retired and brought in a verdict for Defendant.107 [A]181

A Special General Court, held at the Court House On the Sixteenth day of July One Thousand Eight Hundred and Fifty 108 Present: Major Caldwell, Governor of Assiniboia, President Adam Thom Esqr. Counsellor of do. Recorder109 Alexr. Ross Esqr. do. do. Sheriff James Bird Esqr. do. do. John Bunn Esqr. do. do. Andrew McDermot do. do. Cuthbert Grant Esqr. do. do.

Christopher Vaughan Foss Esquire versus Augustus Edward Pelly Esqr. & his Wife, John Davidson & his Wife [Case 77] 110 [Defamation]

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The Plaintiff 111 stated he had not entered on this case on any pecuniary advantage to be gained, but merely to clear the reputation of a lady112 who had, as he would be able to prove, been grossly defamed by the Defendants. He had therefore raised this action against them for defamatory conspiracy, & stated his damages at £200 each. The Defendant Mr. Pelly113 stated that he objected to the present formation of the Court, as Mr. Thom was allowed to sit as judge in a [A]182 case in which he had acted as attorney to the Plaintiff. The objections of Mr. Pelly were overruled by the Court, & Mr. Pelly made his “protest against the present constitution of the Court.”114 The following Jury were then sworn: 1. Donald Gunn, Foreman 2. Thomas Thomas 3. Thomas Truthwait 4. Richard Stevens 5. James Swain 6. John Vincent 7. Robert Sandison 8. Thomas Logan 9. Donald Murray 10. Roderick Sutherland 11. Samuel Cook 12. Donald McKenzie Major Caldwell,115 being duly sworn and interrogated, deponed: That he felt great interest in Mr. & Mrs. Pelly, who were ill. And on a particular day when Mr. Black was up from the Lower Fort, while he was talking to him & remarking to him how ill Mr. Pelly looked, Capt. Foss came up, & said he thought that the Pensioner Anderson was the greatest rogue, & Pelly the greatest scoundrel, in the place. ¶ “Mr. Pelly told me that on the day that Mr. Harriott gave his dinner party he saw, in the evening of that day, a woman whom [A]183 he supposed to be Mrs. Ballenden pass into Capt. Foss’s apartments.116 At about a quarter of an hour afterwards she returned. And [he said] that Mr. Lane, who was with him, saw her likewise; & a conversation took place between them, & they agreed that it was no business of theirs. Mr. Pelly told me, likewise,  that  he was once in the room with Mrs. Ballenden, when she put her hand on his thigh with a very significant look. He also said that Capt. Foss had told him that Mrs. Ballenden had made advances towards him.”

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¶ “Mrs. Pelly made application to me, stating that the Dutch girl (Cathe. Winegarth117) on two occasions had applied to her to request of me to take a deposition of certain facts connected with Mrs. Ballenden, who she said had at certain times absented herself, & that she was placed to watch, & that if Mr. Ballenden should miss her she was told to say she was at a (certain place). I replied: ‘No, I will not enter into this affair; I have enough to do to guide my own family arrangements.’ A third application was made for me to take a deposition, Mrs. Pelly saying that the German girl had stated that sometimes Mrs. Ballenden wore a green blanket, & at other times the German girl’s dress. At a subsequent period, before the Gn. girl went away a short time, Mrs. Pelly heard that Mrs. Ballenden intended to have a prosecution, and that it was her intention to let off John Davidson118 easy. She wished me to take the deposition, knowing the G. girl was going to leave the Settlement. I consented to do so. At a subsequent period Mr. Pelly informed me that the G. Girl was locked up & could not come. Mrs. Pelly stated that the G. Girl was desirous of clearing her character. I do not recollect having any conversation with Mr. Pelly when I went with him in the boat [A]184 concerning Catherine Winegart or Mrs. Ballenden.” ¶ “Mrs. Davidson came to me the day Sir George came here to see me. I deferred till the next day. She requested a writ for defamation of character. She shewed me a paper, which I glanced at, and I saw some statements concerning Capt. Foss giving money to Jno. Davidson. Subsequently I met John Davidson, & he said that Mr. Ballenden was angry with him for not telling him, & that his nephew119 ought to have told his uncle as he knew of it. Alexé Goulet said that Mr. Ballenden was his (the Deponent’s) enemy.” All which was truth as the Deponent should answer to God.120 Compeared also Miss Anderson 121 who, being duly sworn and interrogated, deponed: That she had heard certain reports about Capt. Foss & Mrs. Ballenden from Mrs. Pelly and Mr. Pelly and others. “I think they told me only what was reported to them,122 & they appeared sorry. My brother the Bishop told me likewise. Mr. & Mrs. Pelly visited me, & subsequently Mrs. Pelly by herself. Had I heard any reports on anyone, I should not have visited them in my brother’s absence. I saw Mr. & Mrs. Pelly yesterday, but nothing concerning this case transpired.” All which was truth, &c., &c. Compeared also Mrs. Black 123 who, being duly sworn and interrogated, deponed: That Mrs. Pelly said that she had heard that Mrs. Ballenden was often seen going to Capt. Foss’ quarters. “The first time I saw Mrs. Pelly she told me about it, but I had heard it before [A]185 from Mrs. Cochrane. I heard that they – Capt. Foss & Mrs. Ballenden – were too intimate, & that

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the last child Mrs. Ballenden had was Capt. Foss’s. When she told me these things I cannot say if she was pleased.” ¶ Had heard her mention the G. Girl and her wish to sign or draw up a statement of facts relative these transactions, but was locked up & could not get out to do so. “Mrs. Pelly told me that Mrs. Davidson had informed her that the G. Girl had told her that Mrs. Ballenden had given her a gold ring, silk cloak, & a dress.124 I heard these things after I had returned to the Lower Fort. Mrs. Ballenden told me not to let my servant associate with the Davidsons. Mrs. Pelly did not state that she had direct conversation with the Gn. Girl, but she believed it herself – that it had appeared as though she was bribed. ¶ I thought that Mr. Ballenden would not return from Fort Alexander if he heard those reports. Mrs. Pelly wrote to Sir George Simpson stating her reasons for leaving the [Upper Fort Mess] table. She wrote the letter herself at the request of Mr. Pelly, who was ill at the time. Mrs. Pelly never mentioned to me that there had been anything criminal between Capt. Foss & Mrs. Ballenden, or anything equivalent to it. Mrs. Pelly did say she wished the G. Girl to sign the paper. Mrs. Pelly did not draw any conclusions on things she heard, only stated them. Mrs. & Mr. Ballenden often referred to the Pellys keeping so much aloof from them – every time I saw them – sometimes in anger & sometimes with regret. ¶ I have heard reports injurious to the character of Mrs. Ballenden from others besides Mrs. Cochrane. Mrs. Moris told me something she had got from Mrs. Brown, [A]186 who had it from the G. Girl. I have heard Mrs. Logan state that Mrs. Ballenden was a woman that must always have a sweetheart as well as a husband. She told me this the first year that Mr. Ballenden was here. I remember Mrs. Ballenden showed herself anxious to get Capt. Foss back to the table again. Mrs. Ballenden sent for my father to assist her in that affair in the afternoon of the day we were going to Major Caldwell. At Mr. Harriott’s dinner in this room,125 I remember Mrs. Ballenden absenting herself twice: once with Miss Pruden (now Mrs. Thos. Sinclair) and once alone. She was about half an hour absent. The second time, I asked the G. Girl what made Mrs. Ballenden so anxious concerning her children, when she said she had never come nigh her.” ¶ Does not know that if the statements made by Mrs. Pelly & others were true it would be sufficient to establish criminality. “Did not believe these reports till Mrs. Cochrane told me. Mrs. Logan told me they were very intimate. Mrs. Cochrane told me these things the day Mr. Black came up.” All which was truth as Deponent should answer to God.

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Compeared also Revd. Wm. Cochrane who, being duly sworn and interrogated, deponed: “It was about the fourth of June I first heard of these things by a report – but the second time [was] in a conversation with Mr. N. Finlayson. I came up to Mr. Pelly and asked him if there was any truth in these remarks, and he informed me that there were a great deal [A]187 of evidence. I made up my mind to write to Mr. Ballenden to acquaint him of these things, & had the letter wrote. For my experience in this place is that whenever a rumour of this kind is in circulation, I have always found them to turn out correct. I did advise Mr. Js. Sinclair not to allow his daughters to visit Mrs. Ballenden.” All which was truth as the Deponent should answer to God. Compeared also Mrs. Cochrane 126 who, being duly sworn & interrogated, deponed: That she had not heard anything concerning this case from any of the parties concerned. “The first time I saw anything was at Major Caldwell’s party. The behaviour of Mrs. Ballenden & Capt. Foss was indecorous. They were in a corner by themselves lifting toys or toying together. At another time I went to see Mrs. Ballenden & the door of the room was closed, not locked. I, on entering the room, saw Mrs. Ballenden and Capt. Foss on the sofa together. I have charged my daughters never to visit there again. I have heard reports, and questions has [sic] been put to me. Mrs. Logan told me, & informed me that she had spoken to Mrs. Ballenden about it. I told my eldest daughter of the impropriety of conduct I had perceived, and told her not to go to the Fort. Both doors were shut when I entered. Mrs. Ballenden & Capt. Foss were in that situation, which I thought highly indecorous – so much so that I retreated and remained outside the door a good half a minute before I re-entered – & then I saw Capt. Foss, who shut the door & put his back against it, holding [A]188 his hat in his hand, & looking confused, & saying: ‘Now Mrs. Ballenden, now then.’” Thinks this had reference to the asking of her daughters to a ball Mrs. Ballenden intended giving at a short time subsequent to this time. All which was truth, as the Deponent should answer to God. Compeared also A. G. B. Bannatyne who, being duly sworn and interrogated, deponed: “I was present on the evening that Mrs. Cochrane called at my aunt Mrs. Ballenden. I first opened the outer door and then the inner door, & she – Mrs. Cochrane – did not hesitate or come out again. Mrs. Ballenden was on the sofa and Capt. Foss on a chair at the head of the sofa. Mr. Thomas Cochrane came in at the outer door, & I went out of the room into the lobby or passage to join him. I did not see Capt. Foss stand with his back to the door. I did not see Mrs. Cochrane retreat. I left the room [for] only five minutes, & it was for the purpose of bringing Mrs. Cochrane to my

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aunt – & on my return I found Capt. Foss & my aunt in the same posture as when I left them. ¶ I have heard Mr. Pelly speak against Capt. Foss and Mr. Ballenden. He said that he could blast & ruin Capt. Foss’ reputation. I have carried from Mrs. Ballenden to Capt. Foss notes which I had previously read & knew the contents of. I am nephew to Mr. Ballenden. I have carried verbal requests to Capt. Foss from Mrs. Ballenden. I have been very often in company with Capt. Foss & Mrs. Ballenden.” Does not think that Capt. Foss spent much time with Mrs. Ballenden – [A]189 only a very little, a few minutes or so, in the public rooms. Does not know that they preferred the society of each other to that of others. “My uncle was almost [sic] acquainted with every note I carried. The nature of the notes were not improper.” ¶ “Mrs. Linklater told me she heard something which she did not like to tell, but she would do so, if I would take my oath & promise first that I would not tell. She then told me that she had heard that Frances, Mrs. Ballenden’s youngest child, was Capt. Foss’s and not Mr. Ballenden’s. I never heard of the statement of Mrs. Ballenden’s going to the Captain’s room till after Mr. Ballenden’s departure for Fort Alexander. I have received notes from Mrs. Ballenden, & the contents were these (here the Deponent handed a note in). I have had conversations with Mrs. Linklater. I never said to Mrs. Linklater that Capt. Foss & Mrs. Ballenden could not behave themselves decently at table or keep their hands off each other. I did tell John Davidson if he talked about Mrs. Ballenden in connection with Capt. Foss he would be severely punished.” ¶ “I went into Mrs. Linklater’s room & inquired of her if she had a letter of mine.127 She said she had not, yet admitted that she had seen it, read it, & knew what was in it – but had promised not to tell who had it. I told her if she did not tell me who had it, that I would find one who would make her. I went to the shop & insisted upon Magnus Linklater, her husband, returning to her house with me. I then told him what it was about & requested him to ask his wife for it. She said she had told me I should not get the letter, & as I had brought her husband she would not give it. After some little altercation the letter was promised [A]190 to be given up to me, saying she would inquire of the person below for permission, After I had received the letter I went up to tea, & on my return John Davidson was in the room.” ¶ “I told Mrs. Linklater that I could do a great deal to Mrs. Davidson if her husband did not take care. I never told John Davidson that he should be sent to McKenzie’s River. I was concerned about the note. I did not say if I

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did not get the note I should be turned out of the service. I did not mention the particular shape of the note. I did not offer to go down on my knees. John Davidson never threatened to knock me down.” ¶ “I know of a paper drawn up by the G. Girl. (This paper was read, & it was signed by Richard Hardisty & Miss Flora Campbell on the 8th June.) Capt. Foss was aware of the existence of this paper, for when it was signed I took it to him & he objected to the witnesses, & desired us to go to Mr. Ross to have it attested. Mrs. Ballenden administered the oath. The form of the oath was the same as has been administered here today. I am not acquainted with the quantity of money paid to the G. Girl, but suppose what Mr. Ballenden left for her. Mrs. Ballenden gave John Davidson some money for shoemaking or mending.” All which was truth, as the Deponent should answer to God. Compeared also Doctor Bunn who, being duly sworn and interrogated, deponed: That he was at the dinner party given by Mr. Harriott, but remembers nothing particular there – does not know at what hour he retired from it, but knows it was early, as he had intended to play cards with Capt. Foss. [A]191 “I have frequently met Capt. Foss at Mr. and Mrs. Ballenden’s house & table, and have never seen Capt. Foss & Mrs. Ballenden in any critical situation. Nor did I ever observe any bad behaviour in her company. In reference to Mrs. Cochrane’s statement – the inference there hinted at concerning that affair – I can state that the greater part of last year it was impossible for her to have done so. Mrs. Ballenden’s health, both before & after her pregnancy, was bad: she was in a state of excitement sometimes, & at other times depression of spirits. She was in a certain state of excitement. I have heard of the reports about Capt. Foss & Mrs. Ballenden, first from Mrs. Moris, & afterwards from Doctor Todd, and after from Doctor Cowan. I did not believe any of these reports.” All which was truth, as the Deponent should answer to God. Compeared also Doctor Cowan who, being duly sworn and interrogated, deponed: That he had always been at the mess table, and had never seen anything improper between Capt. Foss & Mrs. Ballenden. Thinks it hardly possible: that during the ten months he has been there, had anything passed he must have seen it. “I have heard of these reports about Capt. Foss & Mrs. Ballenden. Doctor Todd told me that he had heard it, but he believed it to be a ‘dirty lie,’ & I have spoke to Doctor Bunn about it. I have never perceived anything in Mrs. Ballenden’s behaviour or conduct to countenance the reports. Mr. Pelly did once, I believe, accuse me of breach of confidence, but he apologised for it.” All which was truth, as Deponent should answer to God.

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[A]192 Compeared also Mrs. Stevens who, being duly sworn and interrogated, deponed: That she recollected going to Capt. Foss’ quarters one evening with a horse blanket, and saw Mr. Pelly & another young gent. “Mr. Pelly came towards me & looked hard at me. I had on a dress similar to one worn by Mrs. Ballenden, but hers was worsted & mine cotton.” Cannot tell the exact hour. It might be between nine & ten. All which was truth, as the Deponent should answer to God. Compeared also Mrs. Chart who, being duly sworn and interrogated, deponed: That she was servant to Capt. Foss for eight or nine months, and did never see Mrs. Ballenden come to his quarters. “I washed for Mrs. Ballenden, & was often at her house, but never saw anything improper in her manner. The G. Girl never once stated to me anything about her mistress. I have never heard anything of these reports from any one. I have heard the most today since I have been here.”128 All which is truth as the Deponent shall answer to God. Compeared also Mrs. Linklater who, being duly sworn and interrogated, deponed: That she had never heard anything from Mr. & Mrs. Pelly or from the Davidsons, but had heard these reports from Mr. Andrew Bannatyne – “& the G. Girl, who wished me to speak to Mrs. Pelly. I never spoke to Mr. Pelly or his wife about these matters. I had no knowledge of them, nor had I any intention to speak of them. I never in my life saw Capt. Foss & [A]193 Mrs. Ballenden together in an unbecoming manner.” ¶ “Mrs. Pelly asked me if I had heard of these things. I replied I had. She then told me she was going to leave the mess table,129 & she spoke to me about these things more than once. John Davidson told me that he got some money from Capt. Foss, but did not say it was for carrying of letters. Mrs. Davidson told me that the G. Girl told her in the month of June, before she left, that Mrs. Egan had told her that it was suspected she had been bribed. The G. Girl told me that Mrs. Ballenden was in the habit of going down to Capt. Foss’ room disguised in her – the G. Girl’s – clothes, & sometimes other ways, & would remain away about ten minutes or a quarter of an hour – & told her should Mr. Ballenden awake & ask for her to say she was gone downstairs. She told me she was in the habit of conveying letters. Did not say how often. She used to stand till the answers were written.” ¶ “I never said that the child was Capt. Foss’s. I stated the last August all that the G. Girl said. I never told Mr. Andrew G. B. Bannatyne that the feet of Capt. Foss & Mr. Ballenden were touching each other under the table. I said to him: ‘If you know these things, why don’t you tell your uncle?’ I told him what I had heard, & that he ought to inform his uncle. Mr. Bannatyne

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appeared to be very anxious to get this letter (the pemmican letter),130 and almost cried about it, & offered to go on his knees to get it; & he said if Mr. Ballenden should come to know of these things going on about the carrying of letters (am not sure if the one found was included) he would (Mr. Bannatyne) be turned out of the service. I asked Mr. Andrew Bannatyne if he had lost a [A]194 letter. He replied he did not know, but perhaps his uncle would be very angry. I cannot say what he alluded to.” ¶ “I overheard part of a conversation between Mr. A. G. B. Bannatyne & Davidson. Mr. Bannatyne came in the evening to the door, & began to run down Davidson’s wife, when Davidson said: ‘Why did you say such things of my wife which you have said?’ – which Mr. B. denied. J. Davidson said: ‘You have,’ & the other said he had not. I heard John Davison say: ‘If you say that again I will knock you down.’ Mr. Bannatyne said to me: ‘Now do tell me where is the (pemmican letter)?’ I said: ‘If you were to go down on your knees I would not tell you,’ & then he did go on his knees.” All which was truth, as the Deponent should answer to God. Compeared also Mr. William R. Smith 131 who, being duly sworn and interrogated, deponed: That he remembers one evening – thinks it was in the beginning of April – sitting in Mr. Ballenden’s office, the door of which was open, & Mr. Ballenden was sitting with him & they were both smoking & chatting, “when Mr. Ballenden’s son came in to ask us both to supper. Mr. Ballenden said: ‘I will come as soon as my cigar is done.’ Sometime after I saw someone enter from the outer door whom I at first took to be an Indian woman. I said to Mr. Ballenden: ‘Here is a lady coming upstairs.’ ‘Who is it?’ said he. I replied I did not know. ‘Ask her what she wants.’ I now saw it to be a person in a green blanket. I therefore spoke to her in the Indian tongue, [A]195 on which the person I addressed burst out laughing, & I discovered that it was Mrs. Ballenden, who had come to see what was detaining us & her little boy.” ¶ “I have been a frequent guest of Mr. & Mrs. Ballenden. Have met Capt. Foss at the mess table, & in the private company of Mr. & Mrs. Ballenden of an evening. Have rode out with Mr. Ballenden & Mrs. Ballenden & Capt. Foss, & in no single instance have I ever seen Capt. Foss behave but in the most respectful manner towards Mrs. Ballenden.” ¶ “I remember, on the evening of St. Patrick’s Day 1849, I was invited to a treat in honor of the day. I partook rather freely of champagne, but not so much as to take away my reason. I went to bed, but found myself very ill – a faintness. I got up & went out at the door, & put some snow on my head & walked about before the door, when I heard someone call me & said: ‘Is

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that you Mr. Smith?’ I looked about, but could not see from whence the voice came. I then sat down on the doorstep, & percieved Mrs. Ballenden, who came to me & inquired what was the matter with me. I told her I could scarcely keep from fainting. She advised me to go again to bed as I would catch cold, & she assisted me up the stairs.” ¶ “I was at Mr. Harriott’s dinner. Do not recollect at what hour I left there. Went into Mr. Ballenden’s room before retiring to Mr. Harriott’s room. Went with Mr. Grant, sat up sometime after, as Mr. Harriott was not very well. I cannot tell, as I do not know, the hour when the party broke up.” All which was true, as the Deponent should answer to God. [A]196 Compeared also Mr. Nathaniel Logan who, being &c. “I am the Confidential Clerk to Mr. Ballenden. I have never seen Capt. Foss in an equivocal situation with Mrs. Ballenden. I have heard Mr. Pelly often speak against Capt. Foss – he was all along doing so. During some conversation at the table one day, Capt. Foss remarked to Mrs. Ballenden: ‘Have you become one of those interesting invalids?’ Mr. Pelly was in a great rage at it. Did not hear Mrs. Pelly say on that remark had she been a man she would have hurled a tumbler at Capt. Foss’ head. I heard Mr. Pelly say: ‘She would hold up two hundred pounds to Capt. Foss’ nose & say: ‘Don’t you wish you may get it?’” All which was truth, as the Deponent should answer to God. Compeared also Richard Hardisty who, being duly sworn and interrogated, deponed: That he had never heard anything from Mr. Pelly that had a tendency to the defamation of Capt. Foss’ character. Had never heard Mr. Pelly say that he would ruin Capt. Foss’s reputation. Had never seen any impropriety of conduct between Capt. Foss & Mrs. Ballenden. Never saw anything at table that had a tendency to shock any woman’s feeling. All which was truth, as the Deponent should answer to God. Here ends the first day’s inquiry. [A]197

17 th July 1850 Compeared also Mrs. Brown (Pensioner’s wife) who, being duly sworn and interrogated, deponed: That she knew Mrs. Ballenden’s servant girl. “She asked me to make her a dress. I told her I could not at that time. She said if she got it by the spring it would be time enough, as she was going away then.” ¶ “I was sometimes at the Fort, at Mrs. Ballenden’s, either taking home work or bringing home some to my own house. I remember Capt. Foss coming to

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my house with Mrs. Ballenden. She came to speak about a wedding dress & came in. The Captain remained outside talking to my husband. I saw Capt. Foss at the dinner party – also Mrs. Ballenden – but saw very little of them at that time, & decidedly saw nothing wrong.” ¶ “The G. girl told me she had carried letters between Capt. Foss & Mrs. Ballenden, & that she believed a wrong intimacy between the Capt. & Mrs. Ballenden existed. I do not remember whether she told me if Mrs. Ballenden went to the Captain’s quarters. The reasons she gave me for her suspicions was that when Mr. Ballenden was out Mrs. Ballenden & the Captain were together. She said she wished to leave, & was afraid that Mrs. Ballenden would not allow her.” ¶ “On the occasion of the dinner I went with Mrs. Ballenden the second time down to the house, & no other one was with her but me. I remained in the kitchen about twenty minutes, waiting, & returned with her.” All which was truth, as the Deponent should answer to God. Compeared also Mrs. Thomas Sinclair who, being duly sworn and interrogated, deponed [that] she remembered being at Mr. Harriott’s dinner, & going with Mrs. Ballenden to see her children during the [A]198 evening. “I was with her, & went up to her bedroom. Two of the[m] were asleep, & the youngest was not. The nurse was putting him to sleep.” ¶ “Mrs. Pelly told me she saw Capt. Foss patting on Mrs. Ballenden’s foot and winking, looking towards Mrs. Pelly – & she said that the Captain had made use of very improper words at the table, & which ought not to have been said. Mrs. Davidson told me that the Captain was very free with Mrs. Ballenden the spring before the last. She told me this before the seed time. Did not hear her say that Mr. Ballenden had paid the marriage feast.132 Mrs. Davidson said she got these communications from the G. Girl. My father was much annoyed by losing his servant. In August, Mrs. Davidson came to my father’s house,” but does not remember any part of her communications. “I remember I was alone in the kitchen ironing.” ¶ “I have heard of these reports about Capt. Foss & Mrs. Ballenden from many, but I cannot tell the words now. I heard of some of the reports before my wedding, & some after. They stated that Mrs. Ballenden went to the Captain’s room. I never saw Capt. Foss in Mrs. Ballenden’s room. I was never locked up while he was there. I saw nothing when I went down to Mrs. Ballenden’s apartments. We took some refreshments – a little wine, I don’t know how much. Mrs. Ballenden poured some in a tumbler, [A]199 out of which we both drank.”

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¶ Does not remember from whom she heard these reports. Remembers the first time she heard them was last August. “I heard them from several. I remember Mrs. Davidson & Miss Cochrane told me, but forget the others.” All which is truth, as the Deponent should answer to God. Compeared also Adam Thom Esquire, Recorder of Rupert’s Land, who, being duly sworn and interrogated, deponed: That, on the Tuesday afternoon that Sir George Simpson was present in the Settlement, “I left the Fort in the belief that Mr. Ballenden was to resume the charge of the District, instead of taking furlough for a year, in order to investigate a case respecting Capt. Foss & his wife. On Wednesday morning I was hurried up by a note marked ‘immediate,’ & on my arrival found that Mr. Ballenden had resigned the charge, without however abandoning his remaining in the Settlement – and that he had done so in consequence of having handed to him two depositions sworn to before Sir George Simpson by John Davidson & Mr. A. E. Pelly respectively, who were the Defendants in this suit, but had not yet been summoned as witnesses in the case of Mr. & Mrs. Black.”133 ¶ “I found Sir George in a state of deepest distress, & Mr. Ballenden in a condition of intense agony. I read the depositions, & merely remarked: ‘You two gentlemen seem to forget that such a thing as perjury is possible, as well as adultery,’ adding that [in] all my experience in every country, unsifted evidence could not have the slightest effect on my mind in regard to a formation that what they seemed [A]200 to entertain of as final & irrevocable [sic].” ¶ “Mr. Ballenden was so compleatly prostrated by the blow that the Defendants had inflicted that he actually [blank] an apology to me to ask his wife on the subject. I had then some conversation with Mr. Ballenden, in which he stated two circumstances that seemed to stagger himself. One was that of a sum of money he left with her on his departure for Fort Alexander there ought to have been a balance of thirty shillings, which he could nowhere find. The other was that during her last pregnancy [she] had frequently proposed to separate from him.” ¶ “I went to my own house, where, fortunately, Mrs. Ballenden had the day before taken shelter. I desired Mrs. Thom to send for her. I asked her: ‘Have you any money?’ She smiled. (She afterwards told me) she saw more anxiety in my face than I was aware of. She produced thirty shillings for Mr. Ballenden [who] could not find it. She said: ‘Perhaps it’s in my work box, or perhaps I have it here. I will go up & look.’ She immediately returned with a purse (I counted a one pound note, a five shilling note, two half crowns, a shilling, & a sixpence), explaining at the same time that the purse was the

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identical purse left by Mr. Ballenden at his departure. I playfully pocketed the purse & said: ‘Madam, you will never see this again.’ I then asked her what had [A]201 induced her ‘to think of running away from Mr. Ballenden during your pregnancy.’ She immediately answered: ‘Did he not tell you I always have done so since the second child, & the last time I said so to Doctor Bunn as well as himself?’” ¶ “I immediately wrote to Mr. Ballenden the result of my inquiries, adding that the next day I should take up Mr. Ballenden to confront if necessary the parties. On my way, I called on Mr. Logan to ask him to accompany me as a witness to what might pass. I stated to him, to the best of my recollection in the presence of Mr. Ballenden, that my object was not to interfere with the case now in the Court, but to ease Mr. Ballenden’s mind from the burden which appeared to weigh him down the day before. In this hearing of the matter I aimed rather at shaking the credit of the parties than at refuting any particular statements. And on Mr. Ballenden’s asking me to leave the room in order to suggest the propriety of inquiring into one or two different assertions, I explained, more at large [than] to him, my reasons for the course I had adopted.”134 ¶ “I shall now read the depositions.” (Here the depositions were read: No. 1. Sworn to be true before Sir George Simpson, Governor-in-Chief of Rupert’s Land; and the other, No. 2: Certified to be a true statement before Adam Thom Esquire, Recorder of Rupert’s Land. Both the originals are in the safekeeping of the Clerk of the Court.)135 ¶ “The first point I drew John Davidson’s mind to was the assertion (No. 1) ‘That Mrs. Ballenden wished to make me believe that she was [A]202 making up the matter.’ John Davidson did refuse to answer questions. I have no knowledge whether John Davidson stated he had already been summoned to appear at court, as he addressed Mr. Ballenden.136 It has been stated that as a question of law that no man is bound to criminate himself, & that as Defendants in this case they ought not to have been examined by me. They had themselves become the voluntary slanderers of the wife of their master.” All which was truth, as the Deponent should answer to God. Compeared also Mrs. Ballenden who, being duly sworn and interrogated, deponed that: “On one occasion Mr. Pelly came to my room and, in the course of conversation, said that had he known what society he was in he would not have entered into the engagement he had done with the intended Mrs. Pelly, & ‘If she did not come out [from England], it is a marriage that will never take place.’ We went on talking about the Company’s business. I told Mr. Pelly that I did not trouble my head with it. I got up &

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began to walk up & down in my room, & occasionally to stand at my bedroom door to listen [to Pelly?]. I asked Mr. Pelly what was the appearance of the intended Mrs. Pelly. He said she was twice my size and half my height. [Then he said:] ‘Now when I see you I can account for it why people speak ill of you.’ He continued to say that he [A]203 supposed that I had been generally admired, & that was the cause of the jealousy. The conversation was carried on, but [I] cannot remember all of it.” ¶ “The next day, Mr. Harriott came up to me, & said he wished to speak to me as a friend. He stated that he had known Mr. Pelly for years, & to be on my guard how I conducted myself towards him. He said: ‘Do you know Mr. Pelly is a very vain young man? Was he here the last evening? Do you know what was said of you? Mr. Pelly told me that very little on your part would make him to run away with you.’ I took the first opportunity of expressing my opinion of him to himself, & of his behaviour, & what I thought of him; & that I had heard of his ways, & that I should never look on him in any other way than that I had adopted to treat him in. Very often he used to apply to me for medicine, & I have frequently weighed it out for him, & have continued that line of conduct towards him which I had marked out ever since.”137 ¶ “I remember dining at the Government House,138 and remarking that it was a dull party. I have been invited to Government House [again], but have declined on account of ill health. Capt. Foss has been invited at the same time. There were about twelve persons present at the time [I was there]. I heard that Major Caldwell was not pleased.” ¶ “I know Mrs. Cochrane. Saw her as she passed down to Canada, & on the way up again. I was a pupil to Mrs. Cochrane. Mrs. Cochrane arrived at the Sault very ill, and I nursed her. Her daughters did not nurse her. I was at the time far advanced in pregnancy. [A]204 Immediately on her arrival at this place she wrote me a most affectionate letter acknowledging the kindness.” ¶ “I remember writing a letter to Captain Foss, at the suggestion of Mr. Christie. Capt. Foss was about leaving the mess, and it was on account of his having seen a letter in the office. Mr. Pelly took great interest in the getting him to remain, & said if he – Capt. Foss – left the mess he would go to Pembina & pass the winter. I was anxious on account that if he left that there would be no-one to keep the [mess?] accts. I went to Mrs. Black’s room, & by her assistance got Mr. Black to call Mr. Christie to me. I then stated the whole matter to Mr. Christie. He suggested that I should either see Capt. Foss or write to him. I wrote, & sent the letter by Mr. Pelly.”139

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¶ “I wrote several letters to Capt. Foss on account of a ball he intended to give with Mr. Harriott, & [that] was put off on account of the death of Mr. Thos. McDermot. The letters were on this account: that I was making the preparations for the necessary articles required, & about twenty pounds had been laid out – & I used to send to the Captain by John Davidson for the money as I required it.” ¶ “I went one evening with my servant John Davidson to Capt. Foss’s quarters, about eight or nine o’clock. I went to the outer door. It was on account of something that had occurred in the evening. I felt rather hurt at it, and wished to see Capt. Foss to express my regret to him. I saw him, & told him the reason of the difference arose from my husband not wishing the ball, & that I did not wish [A]205 to leave off. The last spring I wrote two or three notes to Capt. Foss about the ball I was intending to have. I borrowed some plate from him, & on my returning it sent a note.” ¶ “I prevailed upon the G. Girl to remain the last August. She went away this spring of her own accord. She signed a paper of her own free will. She spoke of the paper on Friday, & signed it on the Sunday. I never bribed her. About a month before her leaving I wished to search her boxes. Mr. Ballenden prevented me. The reason for my so doing was my having detected her in something.” ¶ “I have never – no, not by accident or otherwise – placed my hand on Mr. Pelly’s person. I do not recollect promising John Davidson a watch. I told him, as we were going home [to Britain], that I would buy a watch for him & send it to him, as they were very cheap at home. This conversation about the watch took place two or three days before his departure for Fort Alexander. I took the keys from John Davidson after my dinner & ball party without saying anything. I promised to give John Davidson a wedding present, but have not, as he did not behave so well. I gave a guinea to John Davidson for him to give to his wife from Mr. Ballenden.” Does not know whether Mr. Ballenden paid for the [Davidsons’] wedding dinner or not. “I sometimes had occasion to give a lecture to J. Davidson. Some Pensioners had been talking to John about letters.” ¶ “I stated I would rather give fifty pounds and have a clear statement at a court. I never used the expression ‘the Devil’s own row.’ The G. Girl told me John Davidson used to [A]206 call her a Catholic Devil. She was a foreigner, & she refused to go to the kitchen for the meals on account of her bad treatment from J. Davidson. I gave five shillings to J. Davidson for shoemaking, & his wife told me that when I gave five shillings to Davidson I gave him a few envelopes for Capt. Foss at the same time – so that it was

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supposed I had paid him for taking the letters. My reason for saying that I would rather give fifty pounds to have this affair cleared up at once was because a report of a similar nature once took place before – when I was here with Mr. James Sinclair.” ¶ “I was the first person to get this business investigated – I had determined to proceed in it. I applied to Mr. Thom, by the direction of my husband. There was nothing in the paper that the G. Girl left about Capt. Foss. Three or four days after, I went down to Mr. Thom’s house to bring this suit through Capt. Foss. Mr. Thom dissuaded me. When I saw Mr. Thom again, he gave me permission to do so.” All which was truth, as the Deponent should answer to God. Compeared also Alexander Ross Esqr., Sheriff, who, being duly sworn and interrogated, deponed that: “Sometime about the eighth of June, Mrs. Ballenden & her servant girl came to my house, & Mrs. Ballenden gave me to understand that she wished to have some private conversation with me – that as her servant (the G. Girl) was [A]207 about leaving, that she was wishing to make a declaration on oath. I stated that I had resigned the office of magistrate, but as I was still Sheriff & councillor140 I would beg her to let me hear the statement. It may be here necessary to intimate that this was the first time I had heard anything of the rumours about the proceedings now before the Court. The girl presented me a paper which she was anxious to swear to. I read it over twice &, seeing it signed by two witnesses, I declined to swear her, & told her as the paper was already signed I could not strengthen it by anything of mine – but if she persisted in swearing to it I would do so. I then put a few questions to her, & asked her, if I called her to swear to that statement, would she be ready to do so? She replied she was anxious to do so. ‘Has this been an act of your own?’ She answered in the affirmative. ‘Has any person urged, prompted or advised you?’ Unto these questions she replied it was her own anxious wish to make these declarations before she left the place.” All which was truth, as the Deponent should answer to God. Compeared also Mr. William Lane who, being duly sworn and interrogated, deponed: That he was at the dinner party given by Mr. Harriott, & was about one of the last to leave this place. “I left in company with Mr. & Mrs. Ballenden, Mr. Bunn Senr., & Mr. Grant. I went to Mr. Ballenden’s house. I remained there about a quarter or half [A]208 an hour. It was intended that I should have slept in the room next [to that of] Mr. Harriott but, it being occupied, I went to the office. I asked Mr. Pelly to give me a shakedown.141 He replied that his bed was large & that we could both sleep together.”

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¶ “A short time after we were in bed, we heard the sound of a good many voices, and the sound of doors opening & shutting. After a few minutes, Mr. Pelly got up out of bed & went to the office window, & returned in a short time to bed – and said he saw a person going from Mr. Ballenden’s house to Capt. Foss’s. Mr. Pelly imagined the person to be Mrs. Ballenden or the G. Girl. I did not get out of bed on the occasion, nor did I see the person alluded to by Mr. Pelly.142 There was about five minutes elapsed while Mr. Pelly was at the window, and about ten from the sound of the voices. The night was dark & cold.” Does not think anyone could distinguish the difference of persons on such a night. “I am not sure, but do not think I made any observations. Mr. Pelly left the party long before me. Mr. Pelly did not get out of bed before. I have no recollection but of this time. Mr. Pelly made no remark either as to stature or dress of the person. I think Mr. Ballenden, Mr. Grant, & Mr. Smith were in the dining room when I left. I have seen the G. Girl. The difference in appearance between her & Mrs. Ballenden is that Mrs. Ballenden is 8 or 10 inches taller than the G. Girl & she, the G. Girl, is about twice [A]209 as big [around] as Mrs. Ballenden.” All which is truth, as the Deponent should answer to God. Compeared also John Ballenden Esquire who, being duly sworn and interrogated, deponed: That on the evening of Mr. Harriott’s dinner party Mr. Grant rather insisted on having a bottle of rum. Having none in the house, Mrs. Ballenden went to the cellar with Madame Legeault for some, & then Mr. Grant & the other gentlemen retired. “I think they were Mr. Grant, Mr. Lane, Mr. Smith, & Mr. Pelly. I that night slept with my wife. As Mr. & Mrs. Black had come up [from the Lower Fort] I had given my room to them, & had a shakedown for Mr. Bunn Senr., while Mr. & Mrs. Christie occupied the lower bed room. I went up to my room, & was there some time, & heard a noise where Mr. Grant & Mr. Smith was. I put on my cloak and went to see & warn them not to make a noise, as Major Caldwell might be disturbed by it. I remained there from ten minutes to half an hour, came back again, [and] found my wife undressing & nearly in bed.” ¶ “Mr. Pelly spoke to me about the behaviour of Capt. Foss. I have never observed anything [wrong] in his behaviour. Capt. Foss requested that an investigation should be made in consequence of what Mr. Pelly had said. Mr. Pelly was appointed to Pembina, & Mr. Setter to the Manitoba Lake, but on my own responsibility I changed them. The day after Mr. Pelly made his complaint I or Mrs. Ballenden proposed that we should have a separate mess,143 which was agreed.” ¶ “I then called down Doctor Cowan, [A]210 & requested him to attend upon Mr. Pelly, as he had an extraordinary complaint, & I did not think he

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was quite sound. ‘Has he reported that to you also,’ said the Doctor? The Doctor then said he had made an extraordinary complaint to him. ‘Which?’ I wished to know. The Doctor wished me to tell him first what Mr. Pelly had said to me. I told him Mr. Pelly had blamed Capt. Foss ‘for making use of gross language & turning Mrs. Pelly into ridicule at the table by nodding & winking at him [Cowan], and drawing his attention towards Mrs. Pelly.’ The Doctor turned very sharp round and asked: ‘Did Mr. Pelly say me?’ I answered: ‘Yes, he did.’ The Doctor replied: ‘He did not say so to me.’ I asked him: ‘To whom was it? To me?’ He said no. ‘To whom was it then?’ He made no reply the first time, & I asked him again – & he said: ‘Mrs. Ballenden.’ I felt very angry. Some few remarks afterwards passed, & we compared notes & found the reports nearly alike – except in that one that he told me the Doctor, and the Doctor Mrs. Ballenden. I found the Doctor attributed these things to a nervous debility & the state of health he was in.” ¶ “I paid a portion of John Davidson’s marriage feast. John Davidson told me he had perceived nothing of the things that Mr. & Mrs. Pelly had complained of. Mrs. Ballenden invariably goes out on certain occasions everywhere, wet or dry. I settled [A]211 the G. Girl’s account down to the month of June early in May, leaving a deposit of five pounds in my wife’s hands for her to keep till she was ready to depart. In addition to this deposit I had ordered my wife to pay her either one or two shillings pr. diem until the day she departed. My reasons for being so particular were that Mrs. Ballenden was very anxious to get her boxes opened by a search warrant before her departure, as some articles of mine had disappeared – and which I opposed, as it was mere supposition. I sent down a watch of John Davidson’s in the year 1847 to Canada to Mr. McTavish. The watch has been mislaid, & I partly promised, as I felt bound, to replace it if I could not get the watch back to the man.” All which is truth, as the Deponent should answer to God.144 For the Defence: Louis Riel 145 dit L’Ireland who, being duly sworn & interrogated, deponed: (The following questions were proposed by Mr. Pelly)146 Question: “Has anyone ever spoken to you to request the Halfbreeds to allow Mr. Thom to sit as Judge on the bench in this case?” Answer: “On the 3rd of July I came here on the subject of our petition. Mr. Ballenden asked me if I had got an answer to it. I told him ...” (The interruption of the Plaintiff at this time, as well as the Bench, prevented [A]212 the Clerk from hearing further. The Plaintiff maintained that he

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had brought a civil suit into the Court for defamatory conspiracy, & not to discuss a political subject, & he appealed to the Court to allow the case to go on, & not enter into a subject irrelevant to the business before the Court. Mr. Pelly, however, persisted in putting the following question.) Question: “Did anyone offer a sum of money to the Halfbreeds to permit Mr. Thom to sit on the bench?” Answer: “Never! Never.” NB ...147 (The noise at this time in the Court was of such a nature as to bring Mr. Sheriff Ross to address the people there in the Court in a short and appropriate speech, which had the desired effect,148 & business was resumed.)149 Compeared also Mrs. Magnus Brown who, being duly sworn and interrogated, deponed: That the G. Girl had told her a great deal about Capt. Foss & Mrs. Ballenden, & about her carrying letters, & that Mrs. Ballenden used to undress herself & put on her clothes. “I saw the G. Girl before she left – the Thursday before – when she told me that Mr. Pelly was to be severely punished by Mrs. Ballenden. She did not say Mrs. Pelly. When I went down to see Mr. & Mrs. Christie before they left, I saw Mrs. Moris. She told me that they had heard a bad report down there about Capt. Foss & Mrs. Ballenden. The G. Girl told me that once [A]213 Mrs. Caldwell went to see Mrs. Ballenden, and when they came into the room Mrs. Caldwell saw Capt. Foss & Mrs. Ballenden lying on a sofa, & that Mrs. Ballenden, in her small voice, said: ‘Come in.’ If a servant introduces a stranger into the room of her mistress, she knows that the servant does not precede the lady.” Does not think there is a rule for upstairs rooms & another for the lower. “Never yet knew a servant go into a room before a lady, but always after.” All which was truth, as the Deponent should answer to God. Compeared also John Black Esqr., Chief Trader, who, being duly sworn and interrogated, deponed: That he remembered Mrs. Ballenden spoke to him about a paper concerning Catherine Winegart (the G. Girl). “The paper Mrs. Ballenden showed me I believe to have been the same that was read in court this morning.” (Looked at the paper.) “This is the paper that was shewn me about two or three days after it professes to have been signed. It was during the absence of Mr. Ballenden I met the Dutch Girl, who, in her broken English, said something about a paper. I thought it might be something about her money. When Mrs. Ballenden came to me requesting me to sign a paper, and handed me this document which I now hold in my hand, I declined doing so, stating to her & explained [sic] my reasons for objecting

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to do so. My advice was that Mrs. Ballenden should keep the girl here till her husband returned, & he would know the best steps to be taken.” ¶ “Mr. Pelly never spoke to me concerning [A]214 the matter of this case before the date of that paper. Nor did I ever hear him mention anything about the case. I remember John Davidson & his wife coming to me with some papers concerning Capt. Foss & Mrs. Ballenden. John Davidson came to me, & stated that his wife was not used right – that she had been engaged to perform a certain kind of work, which Mrs. Ballenden had taken from her & employed others to do. I do not know the date of the time they shewed me the papers. Mr. Pelly was in the ordinary state according to the relative situations existing between the families. I partly withdrew Mrs. Black from the Upper Fort in consequence of what John Davidson had told you [Pelly], but I had heard of these reports from Mrs. Cochrane when I came up.” ¶ “Mr. Ballenden never expressed to me his belief in John Davidson’s statements, further than thinking I had acted rather unkindly towards him the first night I spoke to him. Seeing the effect it had upon him, I said no more till the Tuesday evening before Sir George Simpson left. I then told him all I had heard. He had expressed himself warmly as respected Mrs. Black, & told me to tell her that the first impressions was [sic] removed. He left me to infer that he had not so bad an opinion of me or the business I had been concerned in.” NB: It is to be borne in mind that this is merely the heads of Mr. Black’s evidence [A]215 and was not taken down sentence by sentence as the other evidence was – & that I was requested by Mr. Black to condense it, he speaking so rapidly as to make it impossible for me to follow him and note down all that he uttered. W. R. S., C.C.150 Compeared also John Tait who, being duly sworn and interrogated, deponed: That he had often heard the G. Girl speaking about Capt. Foss & Mrs. Ballenden. “I never heard her say that she was afraid to be shut up. The last June was a twelvemonth since I first heard her speak about these things. Am not certain when she spoke the last time to me about them. She did not talk of them freely before people – but before me, John [Davidson], & his wife. I do not recollect that she spoke before others – only John & his wife. Mrs. Ballenden knew that these reports were in circulation about her the last winter, or towards spring – after the ball. I was told so by John Davidson. I did not hear of it from any other. John Davidson alluded to the reports that were circulating about Capt. Foss & Mrs. Ballenden.” Does not know whether it was about the time the pemmican letter was found.

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¶ Never saw that Catherine was ill treated by the Davidsons in the kitchen. “I never heard John call her a Catholic Devil. I never heard her say she would not come down on account of ill treatment. I can tell the reason why she did not come down. One day she came down & found the door bolted. She went up again & came again &, still finding the door bolted, [A]216 got in a great passion – & attributed it to Mrs. Lyons. I was then employed by Mrs. Ballenden to carry the meals upstairs. After this, Mrs. Ballenden called me & said: ‘Why does not the G. Girl come up with the meals?’ I said: ‘Because she found the door bolted when she came up.’ She asked me then to bring the children’s meals up, & she would pay me for it. I did so. I never saw that it could be on account of ill treatment in the kitchen that she did not come down.” All which was truth, as the Deponent should answer to God Compeared also Mrs. Eagan who, being duly sworn and interrogated, deponed: That she had heard of these reports about Capt. Foss & Mrs. Ballenden. “It was the Thursday before the G. Girl went away that I first heard of them. It was on the Saturday evening before she left that she told me that she had had the promise of a gold ring, a silk cloak, & a necklace, & that she had (Mrs. Ballenden) given her this on account of her care & kindness to the children during the last two years & eight months that she had been with her. I will swear that Mrs. Ballenden never spoke to me about these reports.” All which was truth, as the Deponent should answer to God. [A]217 Compeared also Mrs. Kauffman who, being duly sworn & interrogated, deponed: That she had never heard the G. Girl speak of these reports. All which was truth, as the Deponent should answer to God. Compeared also Mrs. Sharp who, being duly sworn & interrogated, deponed: That the G. Girl had spoke to her about these things a very few days before her departure, & after Mr. Ballenden had left this for Fort Alexander. “I never called John Murray a turncoat.” All which was truth, as the Deponent should answer to God. Compeared also John Murray who, being duly sworn and interrogated, deponed: That Mrs. Sharp had not exactly called him a turncoat, but said people said so. “I only understood by it that – my being so near her house – that there might be a suspicion of my telling her anything I ought not. I spoke many times to Mrs. Sharp about these things during the winter.” Not sure as to the time, but before the snow was off the ground. ¶ “The G. Girl told me the Friday evening before she left that she had got a present from Mrs. Ballenden of a gold ring, a silk cloak, & a dress. Do not know whether she took them or left them. The first time I heard these

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reports was the first winter I was here, but not sure as to what part of the winter. I remember one evening [A]218 being with Chart – it was the night of the Major’s party. We were going down the stairs to the Captain’s quarters when a person passed. Chart asked me if I knew who that was. I replied I did not know. He then said: ‘It was my mistress.’ This took place the winter before last. About nine o’clock, but not sure. Chart did not say that he had seen her there before. I do not know if Chart was sober, & I do not know if it was Mrs. Ballenden.” ¶ “I came from Canada with Mr. & Mrs. Ballenden. I never saw anything wrong when I brought up the horses. I always saw Mrs. Ballenden treat her husband with the greatest kindness, both before and after his illness. I do not remember whether I and Chart were speaking at the time the person passed. He was at the bottom of the stairs & I on the top. The person shewed no hesitation in passing out. On our voyage up from Canada Mrs. Ballenden was very careful, & generally carried two children over the portages – & at the time of Mr. Ballenden’s illness she carried two & Mr. Bannatyne the other. Our provisions got out altogether & our sufferings were great. I do not think that Chart was drunk at the time, but he had been drinking.” All which was truth, as the Deponent should answer to God. Compeared also Madame Legeault who, being [A]219 duly sworn and interrogated, deponed: That she had carried two small notes from Mrs. Ballenden to Capt. Foss when Mrs. Ballenden [missing word] the Captain in the daytime in her room, & once her boy was sent for her [Madame Legeault?] at her own house on account of Mrs. Ballenden’s illness. She was alone in her room – she was in the parlour. “I never saw Capt. Foss in Mrs. Ballenden’s bedroom.” All which was truth, as Deponent should answer to God. Here ends the second day.

18 July, 1850 Compeared also Magnus Brown who, being duly sworn and interrogated, deponed: That he had conversed with the G. Girl about these reports, and she said she had been carrying letters from Capt. Foss to Mrs. Ballenden, & that she had [then] refused, which had made Mrs. Ballenden not so agreeable to her as she used to be before; & that she looked angry at her & would not look or speak to her for two or three days together. “She said she had been left with a lie in her mouth: to say if Mr. Ballenden inquired for her to say she had gone downstairs – and if she was away anytime to say she was only just gone. She said she wished very much to tell Mr. Ballenden about

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her carrying letters, but she feared Capt. Foss would shoot her. I think it was in the month of September 1849 she told me this. [A]220 She said she had applied to Mr. Ballenden to settle with her before he left this place. Mr. B. said he would, but had left Mrs. Ballenden to settle with her. She said she feared she might not settle it correctly on account of the dispute of her concerning the letters. She did not tell me she had signed a paper. I never saw anything [improper] between Capt. Foss & Mrs. Ballenden. I have seen them walking arm & arm, & thought a maid servant would have been better. It was out in the plains where I saw them.” All which was truth, as the Deponent should answer to God. Compeared also Serjeant Rickards who, being duly sworn and interrogated, deponed: That he had never heard of these reports till after the issuing of the summonses. Never heard Chart say anything on these subjects. Does not remember the night of Mr. Harriott’s dinner party, but remembers taking Chart prisoner – but cannot tell what day it was. All which was truth, &c., &c. Compeared also Mrs. Munroe who, being duly sworn and interrogated, deponed: That the G. Girl never spoke to her about Capt. Foss & Mrs. Ballenden. All which was truth, as the Deponent should answer to God.151 [A]221 The Recorder summed up the whole of the evidence at great length.152 And the Jury retired, and after an absence of nearly four hours returned into Court with the following verdict:153 Guilty against the four Defendants in damages as follows: £300 against A. E. Pelly & his wife £100 do. John Davidson & his wife154 Commentary Why, in a case to which Sarah Ballenden was not even a party, was so much of the testimony focused on her moral integrity? The allegations of sexual impropriety smeared both her and Captain Christopher Foss, and although it was he who sued the principal gossips, his declared motive for doing so was “to clear the reputation of a lady.” Even if he had not made that statement at the opening of the case, the spotlight would undoubtedly have been on Mrs Ballenden because of her social prominence in the community. One of the chief defences available to any defamation claim is truth – proof that the statements made about the plaintiff were true. Although the record does not say so explicitly, it is clear that it was this defence upon which the

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defendants relied. Mrs Ballenden’s private behaviour could not possibly, therefore, have escaped vigorous courtroom scrutiny. Sarah Ballenden’s own evidence established that although the action was brought in Foss’s name, it had been she who effectively initiated it. But in the nineteenth century, a married woman did not normally sue on her own behalf; it was usual for some man to assume the role of plaintiff in her stead. But why should it have been Foss? The normal procedure in such matters was for the husband to sue on behalf of his wronged wife. Why did John Ballenden not do so in this case? Perhaps it was because, as plaintiff, he would not have been permitted to testify under oath. Yet his evidence was far from crucial in this case, and his testimony was quite possibly less demonstrative of his support for Sarah than it would have been if he had sued to cleanse her good name. Could it be that Ballenden’s own doubts had led him to insist that Sarah and Foss bear the burden of persuasion? The Foss case has attracted considerable attention from historians,155 and much of what has been written has treated it as an illustration, even as a source, of serious racial tension in the settlement. Silvia Van Kirk, for instance, has said that it “threatened to divide Red River irrevocably along racial lines,” and that “[t]he real significance of the trial lies in the racial animosities which it engendered.”156 Race was doubtless a factor. Sarah Ballenden was the daughter of company officer Alexander McLeod and his mixed-blood wife; and there had certainly been condescending comments when she, as the wife of Chief Factor John Ballenden, became the chatelaine of the Upper Fort Garry mess. The majority of the court and the jury were either Halfbreeds themselves (e.g., Dr John Bunn and Cuthbert Grant) or married to women with Aboriginal blood (e.g., Alexander Ross). It is very likely that the agreement of Louis Riel Sr, on behalf of the French Halfbreeds, to permit Recorder Thom to sit on the case was prompted at least in part by fellow-feeling for the mixedblood woman whose morals were being so viciously dissected by the community. And most of Sarah Ballenden’s accusers were white. It is doubtful, however, that race played the pivotal role in Foss v. Pelly that Van Kirk and others claim. It is worth noting, for one thing, that Chief Trader John Black’s wife – who was a prominent ally of the defendants (indeed, a defendant in her own right in a separate suit by Captain Foss) and an intimate friend of Mrs Pelly – was herself a woman of mixed blood: the daughter of two-time governor of Assiniboia Alexander Christie and his Halfbreed wife. And how does a racial analysis of the litigation account for the actions of Adam Thom, surely no champion of Indigenous people, in defending so assiduously, and at such risk to his own career, a woman whom, in spite of not having “so much starch in her face,”157 he described as “the fairest flower in Rupert’s Land”?158 Many more of her staunch defenders were also white. A more plausible social characterization of the case might be as a clash between the settlement’s self-righteous white Anglo-Saxon Protestant elite and those who, for various reasons – economic, political, religious, ethnic, personal, as well as racial – were not of the establishment.

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Adam Thom’s courageous, if foolhardy, participation in the case deserves closer analysis than available information permits. We know from Mrs Ballenden’s evidence that “by the direction of my husband” she consulted the suspended recorder about suing and that, after first advising against it, Thom eventually concurred.159 As the only lawyer in the colony, it is highly likely that Thom assisted Mrs Ballenden and Foss to formulate and prepare the claim. We also know that he left the bench to testify;160 but so did all but one of the court’s other members and, for good measure, the clerk of the court. Beyond that, Thom claimed, “I was not an advocate but a judge.”161 Even as judge, he asserted, “I might have gone much farther [in aiding the plaintiff] than I did go.” In so characterizing his role, Thom stated that he saw it as his judicial responsibility “to represent the right as right and the wrong as wrong.” But did the recorder really restrict his efforts to ensuring that the issues were fully, fairly, and impartially examined? Certainly, the plaintiff’s case was much better organized than that of the defendants, and many of the defence witnesses yielded evidence helpful to the plaintiff.162 While the skills involved could have been those of Captain Christopher Foss, it is much more likely that the careful orchestration of the case was the advance work of Adam Thom, and that the useful evidentiary admissions were attributable to effective interrogation and cross-examination from the bench by the plaintiff’s strongest judicial ally. Thom’s immediate postcurial correspondence leaves no doubt as to his certainty of Sarah Ballenden’s innocence,163 and his contempt for her accusers, whom he described as “persecutors ... [who] had sunk to wallow amid the slime of their own falsehoods.”164 His charge to the jury was unquestionably strongly favourable to the plaintiff. On the other hand, the fairestminded of judges could hardly have failed to conclude that the two and a half days of almost completely hearsay testimony had utterly failed to establish the truth of the allegations of improper conduct. The Foss-Ballenden scandal did not end with the court verdict in July 1850. For one thing, even supporters of the plaintiff felt that the exorbitant award of damages was unjustified and unfair. And many remained unwilling to accept the jury’s decision as to liability. Anglican bishop David Anderson, who had been out of the settlement during the trial, concluded, apparently on the basis of reports from his sister – a witness for and a strenuous supporter of the defendants – that there had been a miscarriage of justice, and he preached a sermon to that effect not long after his return to Red River. Supporters of Foss and Ballenden were outraged – none more so than Adam Thom, who began a long and bitter correspondence with Anderson that culminated in Thom’s transferring his allegiance from the Anglican to the Presbyterian Church. Foss had been recalled to England by the War Office, probably at the request of the HBC , and had promised Acting Governor-in-Chief Eden Colvile that he would leave the settlement in October 1859.165 He had ended up staying until the following summer, however. John Ballenden had in the meantime travelled to the United Kingdom, seeking respite and treatment for poor health that had troubled him ever since

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undergoing a stroke while he and his family were first on their way to Red River. He left Sarah at home. The antipathies that had divided the settlement so sharply during the trial persisted – perhaps honed by the continuing presence of the brazen officer and his alleged, now husbandless, paramour – until almost the end of the year.166 At that point, new evidence came to light that convinced most of the community, including Adam Thom, that Captain Foss and Sarah Ballenden were indeed lovers.167 Ironically, Thom himself played a central role in the dénoument. On the afternoon of Tuesday, 19 November, Christopher Foss left his lodgings near Upper Fort Garry, and did not reappear until the morning of Friday, 22 November. During that same period, Sarah Ballenden – who was living (under an arrangement made by her husband before leaving) at the Lower Fort with her children, and in close proximity to Acting Governor Eden Colvile – failed to contact a female friend with whom she was normally in almost daily communication. No one seems to have connected those two absences at the time, or to have noted that they coincided with the days Colvile was absent from home to attend the November session of the General Court at Upper Fort Garry. In early December, however, an unidentified informer168 brought Adam Thom a note, addressed to “My own darling Christopher” from Mrs Ballenden, that invited a visit during the period in question. Thom concluded that the invitation had prompted the captain to travel the 19 miles between his lodgings and the Lower Fort, and to spend the three nights of the acting governor’s absence in Mrs Ballenden’s company. Although he marvelled at the ability of the couple to engineer “the concealment for two or three days of a man of Foss’s remarkable stature in a small house of which every apartment but one is a passage to some other apartment,” Thom was convinced by the damning invitation that this must have occurred. Indeed, he decided, the skills of deception displayed by the couple demonstrated that this was no “maiden effort,” that they “must have laboured previously in such a vocation,” and that “[t]heir adultery must have begun almost with the very beginning of their acquaintance.”169 He therefore lost no time presenting his evidence to Colvile and, by post, to the absent John Ballenden. Although his vow of confidentiality to his informant made it difficult to confront Mrs Ballenden forthrightly, Thom did so “hypothetically,” leaving little doubt in her mind that he was well aware of the tryst. A follow-up interview – the last time Thom would speak to his one-time client – was even more candid. Acting Governor Colvile meanwhile quietly severed all social connections with the unfortunate woman. At that point Sarah Ballenden seems to have decided in her desperation to throw caution to the winds. Making a solo journey to the vicinity of the Upper Fort, and purporting to be lost, she called openly at the house where Foss was living. How long the visit lasted is unclear, but the perceived brazenness of the event was tantamount, in the eyes of public opinion, to a confession of guilt. As she entered Foss’s kitchen, Thom claimed, the visitor blurted out that she had been driven to come by having lost the support of her erstwhile attorney. Shortly after this, Mrs Ballenden fled the

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now doubly frosty environs of Lower Fort Garry for a rented refuge with the family of a nearby settler.170 The thoroughly ostracized Captain Foss finally departed the settlement the following spring en route to an uncomfortable interview with much-annoyed British military authorities concerning his failure to leave the settlement in the fall as ordered.171 Having survived that interview with his commission intact, Foss collected a wife and several children he had left in the United Kingdom, and moved with them to Western Australia, where he joined another Chelsea Pensioner unit, in charge of guarding transported criminals.172 Four years later, a Perth newspaper reported his court-martial for offences that included pledging his entire assets to two separate money lenders simultaneously, lying to both of them about his many other outstanding debts, borrowing and not repaying money from many of the troops he commanded, and absconding from his unit when those facts became known.173 Although the glib captain’s defence was eloquent, and the decision of the courtmartial does not seem to have been made public, the strength of the evidence and the fact that much of it was admitted suggest that he was likely convicted. Foss subsequently moved to South Australia, following which his wife and a daughter returned to the United Kingdom. By 1864 he was known to have died, probably in his early fifties.174 John Ballenden returned to Red River in the spring of 1851, not long after Foss’s departure. He had, according to Sir George Simpson, received Thom’s revelations “calmly” and “with fortitude,”175 but his and Sarah’s reunion must have been intensely painful. It was a very brief, and apparently indecisive, meeting. Two days later, Governor Colvile took Ballenden off to York Factory to assist him at the annual convocation of the Rupert’s Land council, reporting to Simpson during that excursion that his companion was “bothered to know what to do with his wife.”176 Upon Ballenden’s return to the settlement some three weeks later, the couple had only about a fortnight to decide the future of their marriage before he left once more – to take what turned out to be a permanent position on the west coast.177 Whether that decision was made easier or more difficult by the fact that Sarah had given birth while her husband and Colvile were away to another child – one whose paternity was a matter of much speculative gossip – is not known. Colvile claimed that Sarah “has confessed her guilt to him [Ballenden], and thrown herself on his mercy.”178 Whatever may have been decided as to their personal relationship at that point, it was agreed that Sarah and the children would remain at Red River in a rented house near the St Andrew’s Rapids, with a reasonably generous monetary allowance, while John set off for the west.179 That arrangement, although physically comfortable, proved to be agonizingly lonely for the shunned woman; and in the spring of 1852 she moved her family to Norway House, where she was able to find more congenial accommodation in the household of Chief Factor George Barnston and his Halfbreed wife, Ellen.180 Sarah was in poor health by that time. The physical cause was consumption, though Alexander Ross, one of the few who remained sympathetic to her, commented that “if

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there is such a thing as dying of a broken heart, she cannot live long.”181 She subsequently emigrated to Scotland, where it is said that she was reunited with her husband, whose retirement had been made necessary by his own continuing ill health, not long before her death in December 1853.182 John Ballenden died in Edinburgh three years later. Tragic though these developments were for the Ballenden family, they helped to ease Red River’s social discord. Dr John Bunn and fellow councillor John Black, once on the most cordial of terms, were among the many who had been alienated from each other by the case: Bunn had castigated Black and his wife for pointing the finger of shame at Mrs Ballenden, whom he had considered innocent until the events of November and December. When those events became public, Bunn wrote Black a letter of abject apology,183 to which the latter replied graciously that he was pleased “the breach is healed.”184 Although Black’s counterclaim against Foss was kept alive in a “becalmed” state to fend off further attacks from that quarter, it was abandoned after the notorious officer’s departure.185 Social normality slowly returned to the settlement. Many questions nevertheless remain unanswered. The least important of these for present purposes is whether there ever was an affair between Sarah Ballenden and Christopher Foss. Sylvia Van Kirk points out that Alexander Ross, one of the most astute and independent-minded settlement leaders, maintained an open mind to the end about that.186 John Ballenden himself reminded Simpson that no firm proof of Sarah’s guilt was ever produced, entreating the governor, “[F]or my sake if not for hers, ... let her rest in peace.”187 Certainly, Adam Thom’s illogical leap backward from the evidence of an affair in the desperate days of November 1850 to a conclusion that there had been intimacy from the beginning was entirely unjustified – though the cogency of that evidence itself seems strong. In any event, Thom was clearly correct that, from a judicial perspective, “the only question ... [for the court was] not whether Captain Foss and Mrs Ballenden were guilty, but whether the Pellys and the Davidsons were able to prove their guilt.”188 The almost entirely hearsay and largely circumstantial evidence presented in court by the witnesses for the defence did not come close to proving the truth of the gossip. A question that concerned many observers was why no appeal or counterproceeding was taken after most of the settlement became convinced that Foss was not morally entitled to keep the damages he had been awarded. Although Sir George Simpson undoubtedly spoke for many irate settlers when he expressed the wish, more than once, that a way could be found to make Foss “disgorge” what was considered his ill-gotten gain,189 no such attempt was ever made. Van Kirk has suggested that the fact “Pelly never instituted a counter-suit against Foss for a redress of damages” might indicate the proof of guilt was not as strong as was commonly assumed.190 There were, however, many reasons why an attempt to appeal or to sue for “disgorgement” of the jury award would have stood scant chance of success. For one thing, it was far from certain that a right to appeal existed; and even if it had been procedurally possible, it is unlikely that legally plausible grounds could have been

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found for overturning a jury verdict so strongly in accord with the evidence. As for new litigation, Colvile explained to Simpson, “I cannot imagine by what process you expected that Foss should be made to disgorge the £300 he had got from Pelly; in fact, if it could have been done legally which, as far as I know, it could not, the fellow had spent it all, & was considerably in debt besides. And I would rather have paid something myself than done anything to keep him in Red River, either in or out of gaol.”191 Governor Caldwell lamented, probably in jest, that the company did not take one reimbursement measure that would not have required suing Foss: “[I]t appears to me that the ends of justice might have been attained if instead of cancelling merely the Recorder’s commission the Company had also cancelled his salary, and indemnified Pelly out of it.”192 On one matter, the community was virtually unanimous: Adam Thom would never again sit as recorder of Rupert’s Land. [A]222

Minutes of an Inquest 193 Taken on the Body of Martin Jerome [Case 78] [Inquest: Drowning from Unknown Cause]

On Sunday the 4 th Day of August One Thousand Eight Hundred & Fifty Before John Bunn Esquire, Coroner for the District of Assiniboia Jury: Louis Landré Pierre Bruce José Richotte François Marion Bapte. Le Pierre Pierre La Vallé Maximilian Genteau Antoine Carron Louis Berrard André Carrier Joseph Danneau Étienne Morrin Joseph Landré, who being duly sworn & interrogated, deponed: That he had found the body of Martin Jerome yesterday eveng., 4 o’clock p.m., in the water – all his body underwater except his head and breast, the head

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laying backwards on a branch. Does not think he fell in the water where found. The body was floating, appeared as if stopped by the willows from going further down. Face swollen, but appeared [A]223 more swollen & deeply coloured about the eyes. Had on trousers, shirt, vest & handkerchief – shirt a little torn. Saw him alive last Sunday, heard of his being missing last Wednesday evening. “I found a one pound note in his waistcoat pocket, two shillings & sixpence in silver in one of his trousers’ pockets, and seven pence in copper in the other. I know the body to be Martin Jerome’s.” All which is truth, as the Deponent should answer to God. Compeared also Louis Thebeault who, being duly sworn and interrogated, deponed: That the last time he saw Martin Jerome alive was on last Tuesday evening, about 6 o’clock, rather drunk (“bien entrain”)194 to appearance. He drank half a pint of wine between him & another, went across the river & drank beer, came back again & asked more wine. “[I] sold a half pint to him, & a half pint each to three of his companions who were with him. The Deceased got rather quarrelsome, & wished to fight with Comptois (one he was drinking with) but I prevented them. He left my place by himself. Had no coat on. Did not appear in bad temper. [He] staggered a little. [I] was sure he was drunk when he came back from across the river. On Wednesday I first heard of his being lost, but thought he might be somewhere sick. He had a one pound note and some silver in his possession when he left my place. Comptois left my house at sunset. I heard he slept at Joe La Roch’s [A]224 house that night.” All which is truth, as the Deponent should answer to God. Compeared also Louis Berrard who, being duly sworn and interrogated, deponed: That he saw the Deceased about 5 o’clock, as near as he could guess, on Tuesday evening, & he appeared to be well on in drink. Does not think he had much reason left. “He was hanging on the fence as if supporting himself while making water.” All which was truth, as the Deponent should answer to God. Compeared also Madame La Roche who, being duly sworn and interrogated, deponed: That she had not seen the Deceased on the night in question. “Comptois came to my house after sunset. Cannot tell the hour. It was not dayset: it was light enough to distinguish objects. He had the appearance of a person who had been drunk, but was getting sober. On Wednesday morning I heard someone cry out, but don’t know who it was.” All which was truth, as the Deponent should answer to God. Compeared also Theodore Carrier (a boy 13 years of age) who, being duly sworn195 and interrogated, deponed: “The same morning that I told

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the last witness, I heard someone cry out. The sound appeared to come from the direction of the Rivière La Seine. I heard it four times. [I] did not know that anyone was a missing [person]. It was a cry of distress. [A]225 Never heard such a cry before. Saw the Deceased about 5 o’clock on Tuesday evening.” All which was truth, as the Deponent should answer to God Compeared also Soeur La Grave, who declined taking an oath, but deponed on the parole of an ecclesiastic,196 that “on Tuesday evening, about nine or ten o’clock, I heard a cry of man or beast. I went towards some of our outbuildings & heard it again – four or five times. It was a plaintive cry, like a person in pain, & rather short cries. On Thursday evening I first heard of the Deceased being a missing [person], but did not connect the sounds I had heard with that circumstance.” Compeared also Doctor Todd who, being duly sworn and interrogated, deponed: That he had seen the body, and that there appeared no marks of violence on the body but what might have happened by a fall. A few drops of blood were visible on the shirt from a scratch in the arm. “My impression is the body is that of a drowned man.” All which is truth, as the Deponent should answer to God. Compeared also William Smith (Pensioner) who, being duly sworn and interrogated, deponed: That no person could drink beer in his house, as he had none in his house at that time – or since, nor for sometime before.197 All which was truth, as the Deponent should answer to God. [A]226 Compeared also George Anderson (Pensioner) who, being duly sworn and interrogated, deponed: That the deceased man & three others came to his house last Tuesday, & took a luncheon there, & drank four quarts of beer, after which they left. “It might have been, as near as I can say, about the hour of ten, or between eleven & twelve a.m.” & as he thinks [the Deceased was] sober. One of the same party came the next day making inquiries, saying they had been drinking wine across the river, and one of the party was missing and had not been seen since. All which was truth, as the Deponent should answer to God. Compeared also Widow Marsellais who, being duly sworn and interrogated, deponed: That some night the last week – does not remember the night – she heard a mournful cry three times. Considered it to be a human voice in distress. The sound came from the direction of the main road. This being the whole of the evidence, the Coroner, through an interpreter (Wm. Dease), advised the Jury to return an open & safe verdict. On which,

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the following verdict was returned: “Found dead in the water, manner of death unknown.”198 Charges on the above Inquest: Messenger: John Monkman 1/6 Interpreter: Willm. Dease 5/ Doctor: Willm. Todd Esqr. 21/ Special Constable: Bt. Charboneau 1/ [Total] £1.8.6 [A]227 [Blank page] [A]228

General Quarterly Court, held at the Court House On the Twenty-First day of November, One thousand Eight Hundred and Fifty Present: Eden Colvile Esqr., Governor of Rupert’s Land199 Major Caldwell, Governor of Assiniboia Alexander Ross Esqr., Counsellor of Assiniboia Doctor Bunn do. do. Andrew McDermot Esqr., do. do. Cuthbert Grant Esqr., do. do.

Regina versus Magdelaine Parenteau [Case 79] [Shoplifting, Breaking and Entering, Theft] This Defendant was placed at the bar and accused of shoplifting, and breaking into the shop of Mr. Logan and stealing therefrom sundry articles, and likewise stealing from Mr. McDermot.200 William Flett being sworn in to act as Interpreter, she [the Accused] was called on to plead. She pleaded Not Guilty. The following Jury was duly sworn: 1. Dond. Murray 2. Robt. McBeath 3. Narcise Marion 4. Martin L’valleé 5. John Vincent

7. [blank] Champeigne 8. [blank] Ayotte 9. Pierre Gladieux 10. J. Harper 11. Hugh Cammeron

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6. James McKay

12. Louis L’Rond

Mr. Robert Logan, who being duly sworn and interrogated, deponed: That on a Monday [A]229 about the hour of 10 a.m,. he perceived that his shop had been violently entered by forcing the bolt which secured the shutter with some instrument or a crow bar, and he missed some property. He went to Mr. Ross and lodged a complaint. “Two days after, I saw the property I had lost at Mr. Ross’[s] house and identified them. There was four muslin handkerchiefs, five silk handkerchiefs, three shawls, & sundry rolls of ribbon. I found a key on my door sill on the above morning. The Prisoner declared that she had taken all the property from my store.” All which was true, as the Deponent should answer to God. Compeared also Antoine Bruce, constable, who, being duly sworn and interrogated, deponed: That he had been sent by Mr. Ross to apprehend the Prisoner; that he found her at her father’s house; “& I found this property there also.” (The stolen property was on a table in the court.) All which was truth, as the Deponent should answer to God. Compeared also William Dease who, being duly sworn and interrogated, deponed: That he had taken the Prisoner into custody from having heard that she was suspected of the theft. “I found her lying down between two stacks behind Louis Bousquet’s barn, with that property (pointing to the articles on the table) under her head, and she was partly covered with the blanket. I made her get up, & I took her to her father’s house. The property now produced is the same I saw then in her possession. Plant201 watched her all that night, and on the next morning I went to Mr. Ross’s to get a [A]230 warrant to apprehend her.” All which is truth, as the Deponent should answer to God. Compeared also Andrew McDermot Esqr. who, being duly sworn and interrogated, deponed to the following articles being his property: viz. two pieces of print, and a piece of unbleached cotton. All which was truth, as the Deponent should answer to God. The Prisoner was called on for her defence, when she stated Sieyese’s daughter took the articles and not her. Françoise Sieyese, who being duly sworn and interrogated, deponed: That she never gave her any of those articles; nor did she ever see them before. The President went over the evidence, and left it to the Jury to find a verdict according to the whole of the evidence they had heard. The Jury retired

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for a few minutes, and came into court with the verdict: Guilty. Sentence: 6 months’ imprisonment in the gaol of this District, dating from the time of her imprisonment – say till the last day of April 1851. [A]231

Minutes of an Inquest Taken on the body of Catherine Murphy [Case 80] [Inquest: Drowning]

On Sunday the Second day of February, One Thousand Eight Hundred and Fifty-One Before Doctor Bunn, Coroner for the District of Assiniboia Jury sworn in as follows: James Spence James Tait Samuel Folds John Folds George Irvine Jeremiah Cook Serjeant Major Nolin “ Rickards Corporal Brown Private Sangster “ Egan “ Picksley After viewing the body, the Jury withdrew to the house of Private Picksley, when: Jacqo Dumuron, being duly sworn and interrogated, deponed: That early on Saturday morning, in company with José Le Violet, as they were going on the river, they saw a dark object lying on the river near a water hole. On examining it on their approach, they perceived it to be the body of a woman, on which the Deponent took up one of the hands & found it frozen. He then turned the face & perceived she was dead. There was [A]232 no appearance in the snow of struggling, further than what the Deceased might have made by endeavouring to rise. “I immediately ran up to the houses & told the persons there that a woman was lying dead on the river near their water hole. On which they came down to the river and recognised the body, and sent me to the husband’s house of the Deceased.

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The door was locked. I knocked at the door, & Murphy opened it. I asked him if Mrs Murphy was in. He said no. I then told him she was frozen to death on the river. He replied: ‘It is too bad,’ & began to dress himself.” All which was truth, as the Deponent should answer to God. Compeared also José Le Violet. This witness, after being duly sworn and interrogated, corroborated the preceding witness [as] to the finding of the body on the river at the same time & place. Compeared also George Welsh who, being duly sworn and interrogated, deponed: That Mrs. Murphy came to his house on Friday for the lend of a bottle, as she was going to the Fort to get medicine for her husband. “I gave her a drink of beer and she went away, but came again sometime afterwards. I hesitated to let her in, as she was accustomed to be very troublesome when in liquor. While in my house her husband came and took her away. It was then about 9 or 10 o’clock at night. She was in liquor, but I had seen her worse than she was then. There was a young man doging [sic] & teasing her [A]233 when she came to my house.” All which was truth, as Deponent should answer to God. Compeared also Patrick Maylay who, being duly sworn and interrogated, deponed: That he was at G. Welsh’s house when the Deceased came in – and saw Welsh give her a drink of beer. “I took her home from there to my own house, but she went away after drinking tea with my wife. My wife was to have gone home with her, but the Deceased refused to go home, but went back. And some considerable time after, Murphy & the Deceased both came into my house. A few words passed between them while there, & Murphy struck the Deceased, but not severely. She did not appear to suffer from the effects of the blows. He struck [her] for being drunk and neglecting him. They both left my house together, & Murphy promised not to strike her again. She did not appear very drunk.” Has seen her worse than she was then. All which was truth, as Deponent should answer to God. Compeared also Martin Dolan who, being duly sworn & interrogated, deponed: That on Saturday morning he saw two men coming from the river to his house, “who told me that there was a body lying on the river near to a water hole between my neighbour Js. Smith & my house. I immediately went down & examined it, & recognised it to be the body of Mrs. Murphy. The body was lying on the belly at full stretch. The clothes were a little torn. There was a small drop of blood on the snow. There was some foot marks on the snow going up the hill. There [A]234 were the tracks of more than one person. I asked Murphy why he had not taken his wife home the last night. He said he expected she would follow him when he left her, but as

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she did not come home, he concluded she had gone to some of the neighbour’s houses to sleep.” All which was truth, as the Deponent should answer to God. Compeared also Mrs. Maylay who, being duly sworn & interrogated, deponed: That the Deceased came to her on Friday sober, & took tea with her. “She said she was going down to the doctor. Towards evening she came back. When she went from my house she fell against the fence & cut her mouth. She promised she would [not?] get drunk. I saw no more of her till she came back with her husband. They sat down awhile, and then Murphy said: ‘Come, my dear, let us go.’ She said ‘I’ll not go from here,’ but I prevailed on her to do so. I did not see Murphy strike her, but he pushed her lightly with his foot, and promised that she should not have any more money for a twelvemonth. I gave the Deceased a few things, and a piece of candle, before she left me – in a basket. They left, but she returned shortly after, having forgot the basket. When they left me Mrs. Murphy was drunk, but her husband sober. Murphy appeared very much affected at the affair.” All which was truth, as the Deponent should answer to God. Compeared also John Smith who, being duly sworn and interrogated, deponed: That on Saturday morning a man came to his house and [A]235 said a woman was lying dead on the river. “I went, & with the assistance of Martin Dolan we carried the body to the house of Murphy, whose wife we had recognised the body to be. The position of the body was: her feet to the hill, at full stretch on her belly, with her hands under her.” All which was truth, as the Deponent should answer to God. Compeared also Baptiste Bouché who, being duly sworn and interrogated, deponed: That on the night of Friday he was at G. Welsh’s house, but does not remember anything that passed there excepting that Welsh struck him. He was intoxicated with rum he had purchased at the Fort. Saw two women at Welsh’s house, but does not know if the Deceased was one of them or not. All which was truth, as the Deponent should answer to God. Compeared also Michael Murphy who, being duly sworn and interrogated, deponed: That on Friday he sent his wife down to the doctor’s for some medicine for his frozen feet, but she did not return. “Late in the evening Maylay came and informed me that my wife was drunk. I went off to seek her, and found her at Welsh’s house, and I brought her back to Maylay’s house, where we sat down and Mrs. Maylay made some tea for her. While we were there I told my wife how badly she had treated me, and that for a year she should not have any money. Before we left, Mrs. Maylay gave me a piece of candle to light after I got home. I walked on before the

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Deceased and carried the basket, keeping a look behind me now & then [A]236 so that she might not return. When we came to the foot of the hill I told her I would go on before and light the candle. After I had lit the candle I was surprised she did not come in. I went with a dog who was very fond of the Deceased to the place where I had left her, but could not find her. I went on as far as Connel’s house without seeing her. I concluded that she had gone to some one of the neighbour’s houses – a custom she had of doing so when drunk or endeavouring to avoid me. I have more than once been obliged to sleep alone on account of her absence when in liquor.” All which was truth, as the Deponent should answer to God. Compeared also Doctor Cowan who, being duly sworn and interrogated, deponed: That he had examined the body, and that his opinion was that Mrs. Murphy lost her life by exposure to the cold. All which was truth, as Deponent should answer to God. This being the whole of the evidence, the Coroner summed up. After which the following verdict was returned:202 found frozen to death while in a state of intoxication, and the Jury expressed their strongest reprobation of the culpable negligence of her husband. Charges for the above Inquest: Maylay & wife 5/203 Martin Dolan 2/6 J. Smith 2/6 Dumuron & Violet 5/ Welsh & Bouché 5/ Doctor Cowan 21/ Michael Murphy [blank] [Total] £2.6.0 Commentary These tragic events, which seem from the identity of several witnesses and jurymen to have taken place in the area of the settlement inhabited by Chelsea Pensioners and their families, provide further evidence of the kind of life lived by at least some members of that community. That law enforcement authorities failed to follow up on the inquest jury’s “strongest reprobation,” other than to deny the deceased’s husband the conduct money the other witnesses were paid, can be explained by the fact that the evidence fell far short of proving beyond reasonable doubt that Murphy had left his wife to die on the ice and/or had deliberately locked her out of the house. Public condemnation by his comrades was no small punishment, however.

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[A]237

The Quarterly General Court, held at the Court House On the Twentieth day of February, One Thousand Eight Hundred and Fifty-One Present: Eden Colvile Esquire, Governor of Rupert’s Land, Presidt. Alexander Ross Esquire, Sheriff Doctor Bunn, Counsellor of Assiniboia Andrew McDermot Esqr., do. do.

Public Interest versus Philip McGuire, George Welsh, James Finn & Thomas Corrigan [Case 81] [Attempted Robbery, Attempted Murder] Andrew Connell charged the Defendants with an intent to rob and murder him, to which charge they severally pleaded Not Guilty. The following Jury were then sworn: 1. William Thomas 7. Willm. Clouston 2. James Tait 8. Rodk. McBeath 3. John Folds 9. Saml. Folds 4. George Adams 10. Willm. Gunn 5. James Hallett 11. Chas. Fidler Senr. 6. James Monkman 12. Willm. Bird Andrew Connell, who being duly sworn and interrogated, deponed: That: “On the 19th December 1850 Barnard Dornon came [A]238 to my house to borrow a shilling to buy beer with. I had none, but my wife lent him one. Afterwards he and I went to look for some [beer] together. We went to George Welsh’s house. I remained outside as I did not wish to go in, so Dornon went in alone. In a short time after he came out, & while I was talking to him Welsh, McGuire & Finn came along the track in a very disorderly manner. I left the track to avoid them, but Welsh came and laid hold of me & struck me, saying: ‘Kill the b ... er. He is one of the sober ones.’ Then McGuire struck me, & knocked me down & kicked me. I called out: ‘Murder!’ Then I saw two women coming, and they coaxed them away, but I was scarcely able to stand. I heard Welsh’s wife call out: ‘For G–d’s sake do

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not murder him.’ I had at the time two five shilling notes in my trousers’ pocket. I had also a pocket knife & handkerchief in my other pockets. All of which were taken from me.” Cross questioned by G. Welsh: “Q. Did I come up to you the first? A. Yes. Q. Had you a stick in your hand? A. Yes! Q. Had you your gloves on or off? A. I took them off. Q. Did you not take out a knife & say: ‘Here goes for the Killdare boys?’ [A]239 A. No! Q. Did not Mrs. Egan feel in your pockets on that night? A. No-one had their hands in my pocket on that night to my knowledge. Q. Did you not send for Finn the next morning? A. Yes, I sent to ask him to repeat what he had said on the night of the 19th. Q. Did you ever draw a knife against anyone? A. Never! Q. Did you not beat your wife on the 19th? A. No. Q. Was you drunk or sober on the 19th? A. I had taken during the day a glass or two of rum, but I was perfectly sober.” Compeared also Barnard Dornon who, being duly sworn and interrogated, deponed: That he was with Andrew Connell on the night of the 19th Decr. last, & went with him to look for some beer at Welsh’s house. He refused to go in, and remained outside a short distance from the house. “In about twenty minutes I returned to the place I had left Connell, and I met McGuire bleeding & with black eyes. I saw Finn also. He was not drunk; nor was he sober. He was sensible.”

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Cross questioned by Defendts.: “Q. Did Connell ever draw a knife on you? A. Yes. Once on the passage up from YF [York Factory]. Q. Did you wish to borrow money from Connell on the evening of the 19th? [A]240 A. I asked Connell to lend me a shilling. He said he had none, & I got one from his wife. Q. Did Connell ask you for a small ax? A. No – he made a snatch at it to take it, but I prevented him.” Compeared also Mrs. Eliza Stevens who, being duly sworn and interrogated, deponed: That about one week before Christmas, in the evening, she heard a noise and went to the spot whence the noise proceeded from. “I found Welsh and Connell in the snow. I told Welsh to get up, and I asked who the other man was. I heard it was Connell. I assisted him to rise. He began to wash his face with snow. I saw his face was cut & bleeding. I cannot say whether McGuire bled from a blow or a knife. I saw no blows during the time I was there.” All which was truth, as Deponent should answer to God. Compeared also Mrs. Egan who, being duly sworn and interrogated, deponed: That on the said evening, hearing the noise, she went to [the] place, and saw Connell laying on his side. “He said that Welsh had nearly murdered him. Connell’s face was all over blood. I saw Finn holding of Welsh around the middle. We took Connell into the house, and I washed his face. McGuire came in while Connell, was there, and I saw that his eye was swelled. Connell’s wife came in also. Connell asked for his coat. When I felt on the outside of his pockets no knife was there. Connell put his hands into his pockets. [A]241 He said: ‘There is nothing in my pockets.’ I heard Mrs. Welsh calling out: ‘Welsh! Welsh! Don’t murder him.’ I saw no blows. I think Welsh was drunk. Finn was sober.” All which was truth, as the Deponent should answer to God. Compeared also Mrs. Dogherty, who was sworn, but, her evidence not being of consequence, was dispensed with. Compeared also Caroline Armstrong who, being duly sworn and interrogated, deponed: That on the evening of the 18th Connell had a stick in his hand, & he swore a great deal of what he would do to the Killdair boys. “On the evening of the 19th I was standing at the stove when Connell came and asked his wife for a pocket knife, which she gave him. He opened

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the knife and put it open in his pocket. About 20 minutes after, Dornon came, and told Mrs. Connell to come and fetch him – her husband. She said: ‘This is what I expected.’” All which was truth, &c., &c. Compeared also Mrs. Armstrong who, being duly sworn &c, said she knew nothing of the evening of the 19th. Also John Green, being sworn, had no evidence to give to the case. Compeared Mrs. Welsh who, being duly sworn and interrogated, deponed: That on the evening of the 19th someone called out ‘Welsh, Welsh.’ He went out, and I followed after him in a few minutes after, and met McGuire covered with blood. He said Connell had been beating [A]242 him. I washed his face, and it appeared to me as though his face had been cut by some sharp instrument. I do not know who the person was who called out ‘Welsh Welsh.’ I had seen Connell about 15 or 20 minutes before in the bush, but thought nothing of it.” All which was truth, as the Deponent should answer to God. Compeared also Serjeant Bailey who, being duly sworn and interrogated, deponed: That on the evening of the 19th he went to Dornon’s room. Connell was there ‘with beef on his nose,’ and he said that he knocked down McGuire. He said he was only a small man, but he would challenge Welsh on the next morning and give him a beating. Connell did not state at that time of having been robbed or anything of the kind. “I was sober myself, & Connell was not sober, and much excited.” All which was truth as Deponent should answer to God. The President summed up the evidence, and left the case for the Jury who, after retiring a short time, returned a verdict of Not Guilty against each of the Defendts. Commentary More Chelea Pensioner shenanigans. [A]243

Shepherd vs. Doherty [Case 82] [Defamation] The Plaintiff stated that he had raised this action [for defamation] against the Defendant on account that he had accused him [Doherty had

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accused Shepherd] of stealing candles from Mrs. Martin, & selling them to Mrs. Eagan204 at three halfpence each. Jury: 1. M. McBeath 2. W. McDonald 3. G. Sutherland 4. J. Polson 5. J. Taylor 6. S. McKay

7. W. Taylor 8. A. Matheson 9. H. Polson 10. H. Matheson 11. James Inkster 12. Dd. Matheson

Thomas Hillier, who being duly sworn and interrogated, deponed: That on the 13th Jany. current205 he was at Shepherd’s house, and heard Doherty calling to Shepherd, and say that he had stole Mrs. Martin’s candles, and sold them to Mrs. Eagan at three halfpence each. All which was truth, as the Deponent should answer to God. Compeared also John Smith who, being duly sworn and interrogated, deponed: That: “As I was going to Shepherd’s house I met him. He was going to the river. I turned against the corner of the house to make water, and while there I heard Doherty say that the Plaintiff had stole Mrs. Martin’s candles and sold them to Mrs. Eagan at three halfpence each.” All which is truth, as Deponent should answer to God. [A]244 Compeared also Mrs. Eagan who, being duly sworn and interrogated, deponed: That she had never bought a candle from Shepherd in her life. All which was truth, as the Deponent should answer to God. For the Defence: Mrs. Martin who, being duly sworn and interrogated, deponed: That she had said to Mrs. Eagan that it was very expensive the great quantity of candles Shepherd used while taking care of her deranged husband, & Mrs. Eagan had said that when she went in to give Martin a drink there was a candle and a piece on the table, “and I said I had never got them or seen them. I met Shepherd once with a barrel coming from the Fort.” All which was truth, as the Deponent should answer to God. The President summed up the evidence, and informed the Jury that a very small amount would be quite sufficient in the present case, but left them to say how much. After deliberating a short time, the Jury returned a verdict for the Plaintiff: Damages two pounds sterg., & costs.

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[A]245

Andrew McDermot 206 Esqr. v. Louison Sayer 207 [Case 83] [Obtaining Money under False Pretences and Restitution] Plaintiff stated that he had raised this action in consequence of the great increase of persons engaging with a number of individuals to go on the trip to York Factory, by which means they obtain advances for the performance of the contracts they enter into without the intention of fulfilling them. In the present case, the Defendt. Louison Sayer had engaged to him for one or two trips, & had received upwards of four pounds in advance. He had afterwards engaged to John Inkster, and had been advanced, & after that he had engaged to the Honble. Hudson’s Bay Company, & had obtained £4 in advance. Jury: 1. Bapte. Morin 2. Thos. Harrison 3. André Goudré 4. André Carrier 5. Wm. Clouston 6. Wm. Flett

7. James Monkman 8. Willm. Gunn 9. Willm. Bird 10. Alexr. Bannerman 11. George Adams 12. George Sutherland

Andrew McDermot was duly sworn,208 & deponed: That he had engaged the Defendant to make one or two trips to York Factory the ensuing season. Shortly after which he had engaged to John Inkster, and afterwards to the Honble. Hudson’s Bay Compy. to go to the Portage La Loche. Compeared also John Inkster who, being duly sworn, deponed: That he had engaged the Defendant for the ensuing summer trip to York Factory, [A]246 and after he had advanced him on account of this engagement he had engaged to the Honble. Hudson’s Bay Company. “After he had engaged to the Company, he came and asked me to give him up, & that he would give me an ox to pay for his advances. I told him if he brought his ox and liquidated his debt I had no objections to do so, but I have not seen either him or his ox till now.” All which is truth &c., &c. Compeared also Augustus E. Pelly Esquire [who,] being duly sworn, deponed: That he had engaged the Defendant for the H.H.B. Coy. to make the trip the ensuing season to the Long Portage, and had advanced him £4. The Jury returned a verdict of Guilty of engaging to obtain money under false pretences. The Court sentenced him to one month’s imprisonment,

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and at the expiration of that term to find security for the debts contracted with Mr. McDermot, John Inkster and the Honble. Hudson’s Bay Company. Commentary This case is a good illustration of the not uncommon blending of civil and criminal litigation in Red River courts. Although it appeared to be cast as a civil claim by McDermot against Sayer, it was treated by the court as a criminal proceeding, resulting in the imposition of a term of imprisonment – but with a concluding additional civil remedy in the form of an order to reimburse McDermot, Inkster, and the company (the latter two of whom had not even sued). Modern criminal practice sometimes also involves the award of restitution to victims of crime.

[Dismissed Cases:] There were four cases of selling beer to Indians, but the witnesses to the same being not to be found, the cases were all dismissed. [A]247

The Quarterly General Court, held at the Court House 209 On the Fifteenth day of May, One Thousand Eight Hundred & Fifty-One Present: Major Caldwell, Governor of Assiniboia, President Eden Colvile Esqr., Governor of Rupert’s Land, Magistrate210 Doctor Bunn Counsellor of Assiniboia do. do. do. do. John Black Esqr.211 Cuthbert Grant Esqr. do. do. do.

Public Interest vs. Kenney (an Indian) [Case 84] For Stealing Malt out of the Store of Alexander Sutherland212 Alexé Goullet was sworn in to act as Interpreter between the Indian and the Court. The Indian Kenney being placed at the bar, his accusation interpreted to him, he pled Not Guilty. The following Jury were then duly sworn, viz: 1. Robert McBeath 7. Charles Haywood 2. Joseph Bird 8. Charles La Rence

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3. John Pritchard 4. John Vincent 5. John Fraser 6. Angus Polson

9. J. Dennieu 10. Dn. McDougal 11. José Robillard 12. Pierre Berrard

[A]248 Alexander Sutherland, who being duly sworn & interrogated, deponed: That on the 12th of April he found the lock of his store door broke, and that he missed about four bushels of malt, and some of it had been spilt in the taking of it out of the window. As it had been a soft night, the foot tracks of the persons were quite plain. He commenced immediately to follow the footprints till he arrived at Jno. Harper’s house, who, seeing him, enquired what he was in search of, & he having told him of his loss during the night, accompanied him in following the tracks of two persons till they came to Jno. Pritchard’s, & so on to many of the neighbours. At last they were a large party. He continued on following the track of the two persons till he arrived at the tent of the Prisoner. Here they lost the tracks, it being so much beaten about the tent. He, the Deponent, and his followers entered the tent, but the Prisoner was not in. His wife was. He found no malt in the tent. ¶ The Prisoner was at his premises the evening before, and Deponent’s children told him that the Prisoner was outside pretending drunkenness. He went out to see him, & he went away, but he was not drunk. The Prisoner knew that he had malt in his store, as he had been working for him for some time before. All which was truth, as Deponent should answer to God. Compeared also John Harper,213 who being duly sworn and interrogated, deponed: That he saw Alexr. Sutherland on the 12th April passing down the Settlement & looking on the ground as though [A]249 he had lost something – & on questioning him, he said that his store had been broke into & he had lost some malt. “I joined him in following the track, & so did others of the neighbours as we passed along, till we reached the tent of the Prisoner. There were two tracks of persons fresh & plain.” All of which is truth, as Deponent shall answer to God. Compeared also James McKay who, being duly sworn and interrogated, deponed: That he joined the others of his neighbours in tracking the persons supposed to have stolen Sutherland’s malt. The tracks were fresh & plain, and one of the tracks – one shoe – was broken, so that the toe protruded & left a distinct impression in the mud. He arrived with the other neighbours at the Prisoner’s tent, but he was not in it. His wife was in, & Deponent asked her where her husband was. She replied: “He went down to his father’s the last night.” “How can that be?” said Deponent, “when he

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was seen up above late last night, & furthermore someone saw your husband going from here [a] short [while] ago loaded?” She replied: “The Indian that went away a short time ago was not my husband,” but some other one whom [t]he Deponent did not know. While here [he] saw a piece of his (the Prosecutor’s) harness, which the Prisoner’s wife said her husband got from Robert McBeath. All which was truth, as the Deponent should answer to God. Compeared also Charles Flett who, being duly sworn and interrogated, deponed: That he saw the Prisoner passing his house with two other Indians on the night in question, about 10 o’clock at night. They appeared to be quite sober. One of them was carrying something, but he does not know what. All which is truth, as &c., &c. [A]250 Compeared also Peter Henderson, sworn and interrogated, [who] deponed: That he saw the Prisoner passing about half an hour before the Prosecutor and the other neighbours arrived at the tent, with a load on his back – a bag full of something. The bag might contain about a bushel and a half. This was on the Saturday morning. All which was truth, as Deponent should ansr. &c., &c. Compeared also Madelain Isiac who, being duly sworn and interrogated, deponed: That the Prisoner and others came to her tent, and, while speaking about the beer they were drinking, asked of (that is the Prisoner) the other Indians214 if they could make beer. They replied in the affirmative. He, the Prisoner, then said he would try and get two or three bushels of malt and have them to brew for him, to which they consented. This was on the night the malt was stolen.” All which &c., &c. The Prisoner having no Defence, the case ended here. Eden Colvile Esqr. then summed up the evidence to the Jury, first in English, & afterwards in French, stating that the whole evidence went only to prove a strong suspicion against the Prisoner, but if they thought there was sufficient evidence to convict him they must bring in a verdict of Guilty. But if on the contrary there was any doubt on their minds of there being sufficient evidence to convict they must give the benefit of that doubt to that Prisoner. After a short time, the Jury returned a verdict of Not Guilty.215 [A]251

Public Interest vs. Neganecapo (An Indian) [Case 85] For Killing an Ox

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The Prisoner being placed at the bar and his accusation interpreted to him, he pled Not Guilty. The following Jury were then sworn in: 1. John Sutherland 2. James Matheson 3. Baptiste Bracconnier 4. Jean Bapte. Perreault 5. James McKay 6. Hugh Matheson

7. Narcise Marion 8. Louis Gallerneau 9. Baptiste Bruce 10. Roderick McBeath 11. Henry Hallette 12. George Sutherland

Alexander Munro who, being duly sworn and interrogated, deponed: That on a Sunday evening about dusk he had missed his ox, and went in search of him. And when about a mile and a half out in the plains he heard voices. He made towards the place where he heard them, and when near he heard people skinning an animal. And when he came to the spot he found his ox killed by a shot in the forehead. The people whom he had heard had all fled. His ox was half skinned, and he found there the property he now produced, viz: 3 bags, 5 mittens, 5 carrying straps, 1 file, 1 hatchet, and a cap. All which was truth, as Deponent should answer to God. Compeared also Benjamin Lajomonier who, being duly sworn and interrogated, deponed: That the Prisoner had been working for him & his wife. Had given him his (Deponent’s) cap – the same he now saw, & the day before he killed the ox he saw it [A]252 on the Prisoner’s head. All which was truth, as the Deponent should answer to God. Compeared also Penayseek, an Indian woman who, being solemnly sworn by the usual method216 and interrogated, deponed: That she did not know who killed the ox, but someone at the tent said: “Let us go for meat.” She and the Prisoner and his sister accordingly went. She identified one of the bags present as her property. The ox, she said, belonged to Prisoner’s sister. She said she did not take away any of the meat, because they were seen. Here the Prisoner acknowledged that he had killed the ox, and was persuaded to do so by those he was tenting with. The Jury gave their verdict of Guilty. Sentence: To be flogged 20 lashes in public, and two months’ imprisonment from this date.217

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Public Interest vs. Charles Stotgal [Case 86] For Selling Beer to an Indian To which charge he pled Not Guilty, on which The following Jury were sworn, viz: 1. Robert McBeath 7. Charles Haywood 2. Joseph Bird 8. William Sutherland 3. John Pritchard 9. J. Donneau 4. John Fraser 10. Duncan McDougal 5. Angus Matheson 11. Bte. Robillard 6. Angus Polson 12. Pierre Berrard [A]253 François Dechamps, being duly sworn and interrogated, deponed: That he was in the Defendant’s house, and bought a shirt from an Indian for a shilling, & the Indian said: “I will get drink for this shilling.” He depones further that he saw other Indians in the house, & saw Defendant give beer to these Indians, & saw the Indians in return give the Defendant something which he put in his pocket, but does not know what it was – whether money or anything else. All which was truth, as the Deponent should answer to God. Two other witnesses were called, but not being forthcoming the case for the Prosecution rested here. For the Defence: Defendant called George Welsh [who, having been] sworn and interrogated, deponed: That he was at Defendant’s house at about 2 o’clock, and while he remained there he saw no Indians. “François Deschamps was there when I went in, but went away before me, & there was no Indians there during the time I was there.” All which was truth, as the Deponent should answer to God. Compeared also John Milaney who, being duly sworn and interrogated, deponed: That he was in the house of Defendant twice on the day alluded to, and stayed there a considerable while. Each time he saw Deschamps there, drunk. Did not see any Indians in the house during the whole time he was there. All which was truth, as the Deponent should answer to God. [A]254 Compeared also Charles Dumais who, being duly sworn and interrogated, deponed: That he was in the house with Deschamps, and left him

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there. He saw a small Indian there. Did not see the Indians drinking there. Did not see an Indian sell his shirt to Dechamps. All which was truth, as Deponent should answer to God. Verdict: Not Guilty.

Public Interest vs. François Cyre [Case 87] For Stealing Fowls from Amable Hogue To which charge he pled Guilty. Sentenced: to be imprisoned two months from this date. [A]255

The Quarterly General Court, held at the Court House On the Twenty-First day of August, One Thousand Eight Hundred and Fifty-One Present: Major Caldwell, Governor of Assiniboia, President Eden Colvile218 Esqr., Governor of Rupert’s Land, Magistrate Doctor Bunn Esqr., do. John Black do. do. Cuthbert Grant do. do.

Public Interest versus Peter Spence, Harriette Spence, John Spence & George Irvin [Case 88] [Breaking and Entering, Theft] Doctor Bunn stated that George Irvin had voluntarily come forward and given in a deposition relating to this case. He submitted that the said George Irvin [should] be admitted as Queen’s evidence,219 which was agreed to unanimously by the President & Bench. The following Jury were then sworn, viz: 1. Donald Murray 7. Richard Satter 2. Hugh Polson 8. James Bruce Senr. 3. William Bunn 9. William Stevenson 4. William Sletter 10. Robert Sandison

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5. John Harper 6. George Groat

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11. Thomas Truthwait 12. James Taylor

[A]256 John Falster, who being duly sworn and interrogated, deponed: That on the morning of the twenty-first of last November he perceived that his store had been entered by the hasp or staple having been drawn out. “I miss’d the half of a pig, and lard, and about a quarter of beef.” The beef he had cut up into small pieces the evening before, and had placed them in the said store by carrying them in a tub – either two or three tubs full. He perceived that the brisket and the best of the meat had been taken. All which was truth, as the Deponent should answer to God. Compeared also Donald McDonald who, being duly sworn and interrogated, deponed: That: “Short[ly] after John Falster’s store had been broken into, I saw John Spence, and spoke to him about it, when he replied that he (John Falster) was a damned old fool, for he only lost two or three kettles of meat whatever. I sometime after saw George Irvin, and accused him of having been of the party who had committed the act. He acknowledged it, and said that he wished long ago to disclose the fact to Johnny. He further stated that Peter and John Spence had prevailed on him to do so, and at last he went, but could not open the door, and then returned to them again. But Peter Spence told him to try now, and he and Peter and Harriette Spence went.” And that Peter & Harriett took some of the meat, but that he took none, & the other two came out & left the door open, & that he had shut it & driven in the staple. All which was truth, as Deponent should answer to God. [A]257 Compeared also George Irvin who, being duly sworn and interrogated, deponed: That late last fall, when the ice was driving, he came across the river & could not get back, & that he slept at Peter Spence’s house. And while there “Peter Spence told me to go to John Falster’s & try to open his store door. I went, but could not open it, after which Peter Spence went with me, and when I pushed against the door it opened. Peter Spence went in & took about four pieces of beef. He had a small bag that might contain a bushel, into the which he had put the beef. Harriett Spence did not go into the store – she stood outside. Peter Spence gave her some of the beef outside. I never saw any of the meat cooked or eaten.” All which was truth, as Deponent should answer to God. Eden Colvile Esqr. here remarked that the evidence now given by the last witness & the deposition taken on the 2nd of June before Doctor Bunn & the local magistrates were very different; & then read over the deposition taken at that time, & which showed that the Witness had committed willful

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perjury. But [he] left the case in the hands of the Jury to decide what degree of weight could be given to his testimony, stating at the same time that he did not think there was sufficient evidence before them to bring in a verdict of Guilty – but if the Jury were of a different opinion it was for them to decide. A short time after the Jury had retired they came into court with a verdict of Not Guilty against all the Prisoners. George Irvin was remanded to take his trial at the next General Court for perjury, & handed over to confinement till bail could be procured for him. George Irvin came before the Court & bound himself [by recognizance] in the sum of ten pounds to appear in this Court to answer the charge to be brought against him in November 1851. James Whiteway & James Spence were this day bound in security for the above George Irvin in the sum of five pounds sterlg. each, that he the said George Irvin, shall appear in this Court at the above time & place to answer the charges to be brought against him then & there.220 [A]258

[James Doherty versus Robert Shepherd, Michael Murphy, & Joseph Armstrong] 221 [Case 89] [Violation of Peace Bond] James Doherty brought forward the present case against Robert Shepherd & Michael Murphy & Joseph Armstrong, his sureties, for breaking the following recognizance: “District of Assiniboia. Be it remembered that on the Twentieth day of June, One Thousand Eight Hundred and Fifty-One, Robert Shepherd, Private of the Corps of Fort Garry Enrolled Pensioners in the District aforesaid, and Michael Murphy and Joseph Armstrong, also both parties in the said Corps, came before me, John Black, one of the justices for the District assigned to keep the peace within the same, and acknowledged themselves to owe to the Governor and Company of Adventurers of England Trading into Hudson’s Bay for behoof of [on behalf of] the Governor & Council of Assiniboia, to wit: the said Robert Shepherd the sum of ten pounds sterling, the said Michel [sic] Murphy five pounds sterling, & the said Joseph Armstrong five pounds sterling, of good and lawful money, to be respectively made and levied of their several goods and chattels, lands and tenements, to the use of the said Governor and Council, their heirs and successors, if the said Robert Shepherd shall fail to perform the condition underwritten.

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Acknowledged before me: Sign’d J. Black, JP

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Robert Shepheard [sic] Sign’d Michel [sic] Murphy Joseph Armstrong

The condition of this recognizance is such, that, if the above bounden Robert Shepheard shall keep the peace towards all the liege subjects of this District, and more especially towards James Doherty, for the term of twelve calendar months now next ensuing, then the said recognizance shall be void, or else remain in its full force. Signd. J. Black JP.” James Doherty, being duly sworn and interrogated, deponed: That on Saturday the 16th inst., while he was sitting at dinner with his wife and Edward Fidler, that Edward Fidler called his attention to a noise outside of the house. He went to see what it was, & saw Robert Shepheard standing on the public road. “He was connecting his pickets222 with mine.” He, Deponent, asked him [A]259 what he was doing now, and whether he was never going to be at rest. “He replied: ‘Hold your tongue you d ... d old horn’d cuckold.’ My wife (Deponent’s) came out with an axe, & said she would not allow the fence to be joined, and made towards the place with the axe.” He, Deponent, prevented his wife all that he could from interfering, & while doing so Shepherd caught hold on him & pushed him violently. And he should have fallen down but that the fence caught him and held him up. He (Deponent) called Ed. Fidler out of the house when he first came out of his house, but as soon as Fidler came out, Shepherd then immediately pushed back the poles to his own side of the lot; he, Deponent, having taken down his fencing & withdrawn it four feet so as to leave a passage. All which was truth, as Deponent should answer to God. Edward Fidler, sworn and interrogated, deponed to the above statement, & corroborated the evidence given by Doherty, & deponed further that Shepherd pushed & caught hold of Doherty in a very rough manner. He further stated that he was employed by Doherty to remove his fencing about four feet, to the loss of a great deal of vegetables belonging to the aforesaid Doherty. All which is truth, as Deponent shall answer to God. For the Defence: Joseph Armstrong (one of Shepherd’s sureties), who being duly sworn and interrogated, deponed: That he was present on the 16th inst., &, when he came, that Doherty was on his own lot & Shepherd on his, about eight or ten paces apart from each other. “I had been in Shepherd’s house, & he call’d me out. When I came I separated Mrs. Doherty & Shepherd. I swear

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I did not hear Doherty say: ‘How dare you do so? You know you are bound over to keep the peace.’” All which was truth, &c., &c. Thomas Oakes & Andrew Connol both gave evidence as to Mrs. Doherty’s violence with an axe in her hand, and to Joseph Armstrong’s separating her & Shepherd, but nothing else. The Jury after a short time returned a verdict against Robert Shepherd: sentenced to be imprisoned till the £10 be paid, this being the amt. of his own recognizance. The sureties were told by the Court that the sureties in any future case would be held liable for their amt. also as well the principal. Commentary Peace bonds were, and still are, useful tools for controlling unruly members of the community. In this case, it appears that James Doherty had brought his neighbour Robert Shepherd before Magistrate John Black in petty court for some small offence back in June. In lieu of fining or imprisoning Shepherd on that occasion, Black had given him the option of entering into a recognizance, or “peace bond,” whereby he promised to keep the peace for a year, on pain of his forfeiting £10 personally and two sureties (guarantors) forfeiting £5 each. Doherty having satisfied the court that his neighbour had violated the peace again on the present occasion, within only a few months, Shepherd was sent to prison until he paid the promised £10. Perhaps because the process was new in the settlement, the court declined to require payment by the sureties as well, but gave warning that it would do so in future cases. Black described this instance of peace bond enforcement (known technically as “estreatment”), and what he considered its beneficial effect, in a letter to Governor Simpson in December 1851: For some time past the Pensioners have been giving me less trouble than they had been doing before, and I cannot but think that, besides the influence of the second officer’s presence [Foss’s replacement] among them, the last magisterial act I was called upon to perform for the veterans had a salutary effect. A few of the more turbulent had been repeatedly annoying me about getting each other bound over to the peace. They seemed to think I had nothing else to do and, as a sort of pastime, were apparently quite content to do nothing else themselves. So I did bind a fellow over at last, and when he was hardly expecting it found an opportunity of estreating his recognizance of £10 to the Public Fund. He was obliged to pay it after an hour or two in one of the cells, and I have had no more applications for binding over to the peace!223 In form, the recognizance is an acknowledgment by the person being “bound over” for a fictitious debt to the Crown, or in this case to the Hudson’s Bay Company on

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behalf of the Assiniboia governor and council. This “debt” will be forgiven if the person meets the condition specified (keeping the peace for a year in this case) but must be paid immediately if the condition is not met. If payment is ordered, it does not go to the person who sought the bond in the first place (Doherty in this case) but to the Crown (or its equivalent: the settlement’s Public Fund). [B]1224

General Quarterly Court Held at the Court House on the 20 th day of November, 1851 Present: Major Caldwell, Governor of Assiniboia, President Eden Colvile225 Esqr., Governor of Rupert’s Land, JP Dr. J. Bunn, JP John Black Esquire, JP Cuthbert Grant Esquire, JP William Ross “ Sheriff226

Public Interest vs. George Irvin 227 [Case 90] [Perjury] The Prisoner was accused at the last sitting of this Court of deliberate perjury, & was held to bail for his appearance at this Court today. On being called, he appeared at the bar to answer the above crime, The following Jury being sworn, viz: 1. Josh. Halcro 7. John Tait 2. Dd. McDonald 8. Wm. Sutherland 3. Peter Henderson 9. Wm. Rowland 4. John Hudson 10. Geoge. Sutherland 5. Kenney McDonald 11. George Sanderson 6. John Garrioch 12. Josh. Kerton After E. Colvile Esqr. had read over the evidence taken on oath of the Prisoner taken at the Petty Court at St. Andrews, and that again given by him at the last General Court in August, he would leave it [B]2 to the Jury to decide whether he had not committed deliberate perjury. If they were of opinion that such was the case, they would bring in a verdict of Guilty, but if they were not of that opinion of course they must bring a verdict of Not Guilty. After a few minutes, the Jury returned a verdict of Guilty. Sentence: Two months’ imprisonment.

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Pierre Beauchamps versus Hyacinth Parissienne [Case 91] [Assault and Battery] The Plaintiff stated that he had brought this case before the Court for an assault on his person in his own house, and stated his damages at £20. The following Jury were then sworn, viz: 1. Pierre Parrenteau 7. Pierre Genvenne 2. Pierre Boyer 8. J. Charrette 3. André Carrier 9. Jacques Savoyard 4. Pierre Gladieux 10. J. Millian 5. Baptiste Delorme 11. Olivier Ducharme 6. Joseph Laroque 12. Thomas Harrison Jean Baptiste Champayne, who being duly sworn and interrogated, deponed: That he was at the Plaintiff’s house when the Defendant and his son-in-law John Henry asked him for two pigs, which it appeared the Plaintiff was due to J. Henry. The pigs were running wild outside, and Henry, after some considerable time trying, could not catch them. On which the [B]3 Defendt. said that it was not just that Henry should be losing his time running after the pigs, and that it was his, the Plaintf’s, duty to deliver them to him. On which the Plaintiff told him that he ought to trouble his head about his own business. The Defendt. replied it was his business, as the young man was his son-in-law. On which the other said it was no business of his. The other said it was. Then the Plaintf. said he was a liar, on which the Defendt. struck him on the eye with his fist. “The Plaintf. then took down a gun, and the Defendant took a knife, but we prevented either from using them.” All which was truth, as Deponent should answer to God. Compeared also John Henry [who,] being sworn and interrogated, corroborated the preceding witness. Compeared also André Vasseur, who, being duly sworn and interrogated, deponed: That the quarrel was nigh over when he entered the house. He heard the Defendt. say that if they were outside of the house they would kill each other, on which Plaintiff called out for his knife. All which was truth, as Deponent should answer to God. Compeared also Mrs. Vasseur who, being duly sworn and interrogated, deponed: That she was not there during the whole time, but saw the Deft. strike the Plntf. – and the Plntf. struck at the Defendt., but miss’d him.

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Then he took down his gun, but his wife took it from him. All which was truth, as the Deponent should answer to God. E. Colvile Esqr. summed up all the evidence, and left it to the Jury to say what amount of damages would be sufficient. The Jury after a short time returned a verdict of ten shillings damages. [B]4

Donald Murray versus Louis Gagnon [Case 92] For a Debt of £6.0.4 The Defendant not answering when called, Judgement went to by Default. [B]5

General Quarterly Court Held this 19 th Day of February in the Year One Thousand Eight Hundred and Fifty-Two At the Court House, Red River Settlement, Jurisdiction of Assiniboia Present: Major Caldwell, Governor of Assiniboia, President Eden Colvile Esquire, Governor of Rupert’s Land, JP Doctor Bunn, JP John Black Esquire, JP Cuthbert Grant Esquire, JP Mr. William Ross Sheriff

[Public Interest vs. Jane Heckenberger & Margaret Heckenberger] 228 [Case 93a] 229 [Murder: Infanticide] The following Grand Jury were called on, and after a brief address from Eden Colvile Esqr. to them pointing out the duty of a Grand Jury, the following persons were duly sworn, viz: Mr. Fs. Dease “ Wm. Thomas “ Dd. Bannerman “ Jno. Vincent “ Thos. Truthwait

Mr. Jas. Tait “ Jas. Taylor “ Wm. Flett “ Js. Swain “ Wm. Drever

Mr. Andé. Goudrie “ John Lyons “ John Falster “ Dd. McKenzie “ Mags. Brown

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Geo. Bird Pr. Pruden Ge. Seller

“ “

Domque. Ducharme Alexé Lespèrance

“ Thos. Sinclair “ Chas. Larence “ Solon. Amlin

The following Bill of Indictment230 was then handed to them: “Rupert’s Land, District of Assiniboia General Court 19th February 1852 The Jurors on their oath present that, on or before the thirty-first day of December last, Jane [B]6 Heckenberger, widow, and Margaret Heckenberger, spinster, both of them late of that part of Red River Settlement which is commonly known as the Indian Settlement, did feloniously, wilfully, and maliciously assault with intent to kill at the Indian Settlement aforesaid a new-born male infant, being an illegitimate child of Margaret Heckenberger aforesaid, first by covering the nose and mouth of the said infant with a piece of cloth, next by laying, in the open air, the said infant with its face downwards on the snow, then being soft and deep, and lastly by allowing the said infant to remain thus exposed to the inclemency of the weather. And so the Jurors on their oath do say that by the said Jane Heckenberger and the said Margaret Heckenberger did then and there murder the said infant, against the peace of our lady the Queen, her Crown and dignity.”231

Public Interest versus Wandegoos (an Indian) [Case 94] Larceny The following Jury being duly sworn, viz: Js. Setter Josh. Savoyard Thos. Firth Bapte. Bruce Robt. Sandison Amble. Deneau Wm. Hallett Pre. Berrard Angs. Matheson Jacques Vallette Mn. McBeath Bapte. Delorme [B]7 George Flett, who being duly sworn and interrogated, deponed: That about Christmas he was one evening away from home. “I left a servant in charge of my house, but he had absented from his charge. When I returned the next day I perceived I had been robbed of the following articles: a small padlock had been forced off of a tin box, & money taken

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thereout – about, or as nigh as I can ascertain, under 5/, two brooches, some pins, rather less than half a bale of dried meat, and the lard of three pigs. I went immediately to the magistrates and laid my complaint.” All which is true, as Deponent shall answer to God. Compeared also Mrs. Stotgale who, being duly sworn and interrogated, deponed: That the Indian Wandegoos came to her house some time before Christmas and warmed himself. “[I] saw a brooch in his hand, [and] asked him where he had got it. He said Madame La Rond had given it to him. He came again the next day, and said he did not think that I knew the brooch. (The day before I had said that I knew the brooch, but merely said so to make him tell me where he had got it.) He again repeated that he had got it from Madame La Rond.” All which is truth as Deponent should answer to God. There were two other witnesses summoned in this case, but [they] were not to be found. Discharged for want of evidence by a verdict of Not Guilty. [B]8

Public Interest vs. Narcise Morand [Case 95] Larceny Js. Cammeron, who being duly sworn and interrogated, deponed: That the night before Christmas Day he was from home, & during his absence he had been robbed of a shirt, vest, and silk handkerchief. “From information I received I suspected the Prisoner, as he had been seen in the house. I went in search of him, and found him at La Fertie’s house. I saw my shirt on him. He got to the darkest part of the room, behind the stove. I called him out to speak to him. I accused him of having stolen my property, which he denied. I told him my shirt had a hole on the side. A day or two later I saw his brother with my vest on, and a little girl told me that he had given a handkf. to Dubois’ wife.” All which is truth, as Deponent should answer to God. Compeared also François Dubois who, being duly sworn and interrogated, deponed: That the Prisoner came to his house on New Year’s Day. “He had a handkf. which I wanted to buy or change with him, but he would neither sell or change it – but went & put it about my wife’s neck. A short time after, Cammeron came and claimed the handkf., & I gave it to him.” All which is truth, as the Deponent shall answer to God.

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Compeared also Louison Morand who, being duly sworn and interrogated, deponed: That his brother the Prisoner gave him a vest, saying it was too small for him. “I kept it two or three days, & Cammeron [B]9 claimed it as his. I immediately gave it up to him.” All which is truth, as the Deponent shall answer to God. Eden Colvile Esqr. summed up the evidence to the Jury, and told them that he thought the evidence was clear and proved the charge, but if they thought differently they would acquit the Prisoner. After a short deliberation the Jury returned a verdict of Guilty. Sentence: 3 months’ imprisonment commencing from 29th December 1851232 till the 29th March 1852.

Public Interest vs. Janet Heckenberger [Case 93b] 233 For Murder, a True Bill having been found by the Grand Jury to this effect. Petty Jury: Robt. McBeath Dond. Murray Thos. Firth Wm. Hallett Richd. Stevens Willm. Tait

Robt. Sandison Morisn. McBeath Narcise Marion Josh. Bird Angus Matheson Michell Dumas

Mary Cook, who being duly sworn and interrogated. deponed: That for some time she had heard a rumour that Margaret Heckenberger had made away with her child. “I knew she had been pregnant, and I now saw her no longer so. I asked her where the child was of which she had been pregnant. She replied: ‘Who said I was with child?’ I said it was reported so. I begged her to tell me where she had put it, as it might be eaten by dogs. She said she did not know, and that it was her mother’s fault and not hers. I asked her if the [B]10 child was alive when born. She replied: ‘A little.’ ¶ I a short time after saw Margaret’s mother (the Prisoner), and I asked her where she had hid the child, and urged her to inform me and show me the place. She then put on her blanket and went with me, she going before. She stopped at a place, and I asked her where it was. She then shewed me the spot. After I had kicked away the snow at the place she had pointed out to me, I saw a piece of buffalo robe. I saw likewise the body of a child laying on its face in the snow. She (the Prisoner) then told me to take the body and

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bury it decently. I took the body to Wm. Flett’s house and laid it in the porch, and called Wm. Flett’s wife out to look at it. The child had a piece of rag over the mouth, and face, which was discoloured with blood and froze on. The navel string was cut close to the body and not tied. The child had a twist in his face & a broken finger. It was a full grown child. It was a male child. ¶ While bringing home the body, Prisoner said to me: ‘Do not say that I killed the child, because I did not kill it.’ She did not say why she had buried it there, but said she was not well used, and that people did not think well of them. After I had washed the body I told them (the Prisoner and her daughter) that they could not hide it – that they had killed the child. The Prisoner appeared sorry.” All which is truth, as Deponent should answer to God. Compeared also Samuel Halcro who, being duly sworn and interrogated, deponed: That as he was going to the mill he came to where the last witness was speaking to Margaret Heckenberger about the child. “[I] went on to Wm. Flett’s house, and sat there [B]11 some time, when the last witness came in and said: ‘They have destroyed the child.’ While I was there, the last witness said she would go and ask the Prisoner to go with her for the child to the place where she had hid it. She went, and a short time came back, and called out Mary Flett. I saw a small body wrapped in a piece of buffalo robe. It was not washed. Saw a piece of dirty rag froze to the face. Had heard that Margt. Heckenberger was pregnant. When she came to our house she always endeavoured to conceal her state, but the women knew it. I buried the child. I was alone to make the grave, and Henry Heckenberger was with me when I put it in the grave.” All which is truth, as the Deponent should answer to God. Compeared also Mary Flett who, being duly sworn and interrogated, deponed: That on the arrival of the boats on the 2nd trip I told Henry Heckenberger that his sister Margaret was with child. He replied that he did not know anything about it. At another time, when we were all together, I told them again. On which, my husband told Margaret to look out for a place to live in, as he would not allow her to live any longer at his place. Never saw the child till it was brought to her place by Mary Cook. It was wrapped in a piece of buffalo robe laying in its face. Saw it again when preparing it for burial. There was a rag froze on its face. The body was thawed in the cellar. I observed when we washed it that the face was twisted, the nose flattened, and one of the little fingers crooked. There was no other marks that I could see.” All which was truth, as Deponent should answer to God. Compeared also William Flett who, being duly sworn and interrogated, deponed: “Prisoner and her daughter [B]12 Margaret Heckenberger lived

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at my house. There are two outer doors to it. I heard that Margaret was with child. I never asked her if she was with child. I asked my [sic] mother (the Prisoner), but she gave me no answer. After the child was found, they left my house. I know nothing of the time that the child was born. When I heard everyone speaking of Margaret’s being with child I partly believed it, but did not like to look at her.” All which is truth, as the Deponent should answer to God. Compeared also Henry Heckenberger who, being duly sworn and interrogated, deponed: That he knew nothing about the birth of the child. “I saw nothing but the back of it, and I know nothing about it, but what I have been told. Never spoke to Margaret about the child.” All which is truth as Deponent shall answer to God. Compeared also Margaret Heckenberger who, being duly sworn and interrogated, deponed: “Sometime after Christmas I was delivered of a child. It was nearly dead. It was born outside of the house. I was sitting on the snow, had a blanket about me. I was alone. I called to my mother, and she came out with a piece of buffalo robe. My mother saw the child after it was born, and she took it away. It was alive when she took it away. I never saw it afterwards. I called to my mother not to carry my child away, but she made not the least answer. When my mother returned she had not the child with her.” All which is truth, as the Deponent should answer to God. [B]13 Eden Colvile Esquire summed up the evidence and addressed the Jury, both in English and French, and told the Jury that if they thought the evidence which they had heard convicted the Prisoner of the crime laid to her charge they must bring in a verdict of Guilty, and if such should be the case – that they found a verdict of Guilty – they might recommend her to mercy. But if they could not find that the evidence was sufficient, they must bring in a verdict of Not Guilty. After a short time, the Jury returned into court and said that they found a verdict of Guilty & Recommendation to Mercy. Eden Colvile Esqr. then addressed the Prisoner, & stated to her that the laws of England had but one punishment for the crime of which she had, after the most patient hearing, been found guilty of. It therefore only remained for him to pass that sentence on her, which was Death. Major Caldwell next addressed the Prisoner, and informed her that the prerogative of commuting the sentence just passed on her was vested in him in his official capacity as Governor of Assiniboia, and as the Jury had recommended her to mercy, and as the crime of infanticide was not so

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frequent now as it had been formerly, he thought he might exercise that power in her behalf. He therefore should commute her sentence to two years’ imprisonment from this date. Commentary This melancholy case illustrates once again the scrupulosity and humanity of which Red River’s judicial system was capable when dealing with life’s vicissitudes, when it was free from skewing influences like HBC interests and ethnic antipathies. The evidence was carefully marshalled and presented; the grand jury properly refused to indict Margaret Heckenberger, against whom the evidence was weak,234 but did not hesitate to charge her mother, to whom the finger of guilt clearly pointed. The petty jury convicted but followed Eden Colvile’s suggestion of recommending mercy, and Governor Caldwell acted upon that recommendation. Members of the grand and petty juries probably suspected, if they did not know, that if mercy was recommended, commutation would reduce the mandatory death sentence to imprisonment. John Black, who had undoubtedly discussed the matter with Colvile and Caldwell in advance, wrote to George Simpson almost two weeks before the trial that if Jane Heckenberger and/or her daughter were convicted, “the dreadful necessity of an execution [could] ... be avoided” by Caldwell’s authority to “commute the sentence into imprisonment – say perhaps for two years.”235 The court’s relatively civilized response to this small tragedy did not, however, betoken much understanding or compassion on the part of the bench, or of other members of the class from which most of the bench was drawn, concerning the plight of poor women – within or without wedlock – who were burdened by unwanted pregnancies. Letitia Hargrave, entertaining her mother in 1840 with accounts she had heard from one of her domestics of the hard lives Halfbreed women led, wrote, “From what she says, the ladies in this country have a fashion of smothering their babies.”236 John Black, reporting to Simpson about the outcome of the current case, observed that Margaret Heckenberger was an “inhuman wretch” who showed “far less natural affection than any animal of the brute creation.”237 As for her mother, he said, it was her “apparent imbecility of mind and other considerations” that justified commutation of her death sentence.238

Martin Lavallée versus Lucas La Ferté [Case 96] [Ownership of Ox] The Plaintiff stated that he had rose this action on account that he had lost a young ox rising two years, & searched for it, but could never hear of it, [B]14 “till I heard of an ox that Defendant had sold to G. Rassette, & which I was informed was a stray animal.”

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Narcise Marion, who being duly sworn and interrogated, deponed: That Lucas La Ferté sold an ox to G. Rassette, and “the Plaintiff being at my house, from hearing the marks of the said ox, remarked that: ‘Perhaps it is my ox.’ He then described all the marks, and then went to G. Rassett’s and examined the head and hide, and knew it by the ear & horns. He afterwards asked me to accompany him to La Ferté’s. He, the Defendt. said the ox was only four yrs. old, and Plaintiff said it was five. And after some disputing Defendt. offered a two year old ox.” All which was truth, as Deponent should answer to God. Compeared also Joseph Savoyard who, being duly sworn and interrogated, deponed: That about eight months after the ox was at the Defendt’s “I saw both the ears marked, but the right ear was more recently marked than the other.” All which was truth, as Deponent should answer to God. Compeared also Pierre Bruce who, being duly sworn and interrogated, deponed: That he was at the Plaintf’s house when he lost the ox. “He would be 5 yrs. old this spring. And Martin cried out his lost ox at the church door several Sundays.239 His mark is a notch in the left ear of his animals.” All which is true, as the Deponent shall answer to God. [B]15 Compeared also Bazil La Rence who, being duly sworn and interrogated, deponed: That he was employed by Geo. Rassette to kill an ox. “I saw that the left ear was notched. It was a white faced and a brown colour. I did not notice the other ear, whether marked or not.” All which is truth, as the Deponent shall answer to God. Compeared also George Rassette who, being duly sworn and interrogated, deponed: That he had bought an ox from Lucas La Ferté, but did not notice any mark – only to his having a white face. “I bought it for £5.10.0 to kill. Its age, I think, might be about 3 or 3½ yrs. old.” All which was truth, as the Deponent should answer to God. Compeared also Andrew Setter [who,] sworn and being interrogated, deponed: That he had lost an ox three years past. He would be now four years old. “Heard that Defendt. had sold a stray ox, and went to see about it – if it was mine. I told the Defendt. all the marks that my ox had, and after I had described it he immediately offered me a three-year-old ox for the one he had sold – which I took & gave him 20/ for his trouble. He did not ask me anything for his trouble, but I gave it to him.” All which is truth, as Deponent shall answer to God.

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Compeared also Joseph Landrie who, being duly sworn and interrogated, deponed: That he believed the ox to be four year old in the spring. The ox had a white face, colour barré.240 All which is truth, as the Deponent should answer to God. Compeared also Prospère Ducharme who, being duly sworn and interrogated, deponed: That [he] had cried [B]16 the ox at the church door two Sundays in succession, and L. Galerneau once, making in all three times. All which is truth, as Deponent shall answer to God. Compeared also Michel Dumas who, being duly sworn and interrogated, deponed: That the ox in question he saw when it first came to Defendt’s, and he is this spring 4 years old. All which is truth, as Deponent shall answer to God. Jury found for the Defendant. The ox belonged to Andrew Setter. [B]17

The General Quarterly Court, held at the Court House On the Nineteenth Day of August, One Thousand Eight hundred & Fifty-Two Present:241 Major Caldwell, Governor of Assiniboia, President John Bunn Esquire, Justice of Peace Willm. Ross do., Sheriff

Public Interest versus John Foubister, James Foubister, and George Robertson [Case 97] For [Criminal] Assault and Battery John Hodgson, Complainant, stated his case. The two Foubisters, father & son, & G. Robertson pled Not Guilty. The following Jury were then sworn: 1. John Tait 7. Cuthbert Cummings 2. John Muir 8. Kenneth McDonald 3. Laurier Loutit 9. John Sletter

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4. Andrew McChorister 5. John Corrigal 6. George Johnstone

10. George Setter 11. Donald McDonald 12. Richard Stevens

John Hodgson, being duly sworn and interrogated, deponed: That about 11 o’clock on Saturday night, the 29th of May last, he heard a noise in his milk house. He got up from his bed & went to see what it was. He saw two dogs run out. One of [B]18 the dogs was belonging to John Foubister; did not know the other. “Soon after I again heard a noise and went out. Saw Foubister’s dog, fired at and hit him. Went in and told Nancy Davies that I had shot the dog. While telling her, the old Foubister called out: ‘Who is that who [sic] shot my dog?’ [I] replied: ‘It was me,’ when he said: ‘Eat it, you scoundrel. I’ll come over and knock your brains out. I’ll take your brains out with my little finger.’ Nancy Davies then said: ‘Go in, they are coming,’ and my wife also wished me to go in.” ¶ “James Foubister came to the door of my porch, where my wife and Nancy Davies were standing. They told him not to come in, but he pushed them to one side, saying ‘Let me take my supper out of him.’” Deponent struck him. Old Foubister then struck Deponent with a stick, and “hit me below the right eye and pulled out my hair. [We] were good friends before this, but no great intimacy between us.” ¶ “The first part of the squabble was in the porch, and then they got me outside, and old Foubister called out ‘Jump on him.’ I was lame for some days after from a blow in the privates.” The mother of James Foubister tried to pacify, but not her husband John Foubister. Does not know whether the door of the porch was open or shut. “James Foubister came through the porch242 to the door of my house, and after passed the women. I struck him. George Robertson pulled me by the legs and I fell. The stick was a yard long that I was struck with.” All which is truth, as Deponent should answer to God. [B]19 Compeared also Nancy Davies who, being duly sworn and interrogated, deponed: That when John Hodgson came in she heard Foubister say: “‘You crawling hound I’ll break your bones for you.’ I asked what was the matter, & Hodgson said ‘I have shot his dog.’ James Foubister pushed by me, and forced his way past me. Then I heard struggling in the house. I heard Js. Foubister say: ‘I’ll have my supper out of you this night.’ Then they came out. Mrs. Foubister & self tried to separate them. Hodgson took a stick, but before he could strike, I took it from him. Saw Old Foubister take a stick.” Someone took it from him, but does not know who. Saw the old man strike John Hodgson with his fist. “Am not sure if James Foubister had

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Hodgson by the hair. Heard his head against the window. I then heard my sister exclaiming: ‘You have killed him now, Foubister.’ [I] did not see Ge. Robertson do anything. Foubister’s dog was a very troublesome one. He was continually stealing beef out of the store and eating lines243 off of the sled. All my milk coolers were upset on this night, & the milk spilled. No person used a hatchet. I took up one that was there & threw it into the garden.” Questd. by Jno. Foubister: “I saw you strike Johnny. I heard your wife say ‘Don’t strike me Johnny.’ I do not know who was standing with your wife. I told them to leave off & wait till Monday.”244 ¶ All which is truth, as the Deponent shall answer to God. Compeared also Mary Corrigal who, being duly sworn and interrogated, deponed: That [B]20 she was in bed and sleeping when someone awoke her & said they were fighting at Hodgson’s house. [She] went there. They were done fighting, and [she] only saw Hodgson laying on the ground, his head on his wife’s lap. He was insensible. Saw [the] three Defendants there, & W. Robertson. They were talking. Did not pay attention to what they said – did not hear any bad language. Saw John Hodgson on Monday: his head was bald and his eye blue, & he walked lame. His eye was quite black. All which is truth, as Deponent should answer to God. Compeared also James Corrigal who, being duly sworn and interrogated, deponed that: He was in bed on the night in question, “when Nancy Davies sent for me. When I came I saw Jno. Hodgson laying on his back outside of the house at the window. He seemed to be in a swoon. His wife was throwing water on his face. When he recovered from the swoon, he said: ‘Old Foubister has killed me. Old Foubister was accusing him for being a quarrelsome man. [I] saw Hodgson next day crawling about on a stick. His eye was black, & he complained of the hurt in his privates. The dog is a bad one. I have often had to drive him off from my place. I don’t know either party to be quarrelsome.” All which is truth, as Deponent shall answer to God. Compeared also Nancy Brown who, being duly sworn, deponed: That she knew nothing [B]21 of this case but what she had been told. Her evidence [was] dispensed with.245 Compeared also William Robertson who, being duly sworn and interrogated, deponed: That on the above night he was at Foubister’s house, and when they all went over to Hodgson’s he went & stood at the door outside

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of the house. “And I then heard Js. Foubister say to Hodgson: ‘Let it alone till Monday,’ & then they would settle it. I saw Hodgson run out of the house and take up a stick, but did not see him strike anyone. Js. Foubister took it from him, and when he took it Hodgson caught him by the hair; & then young Foubister threw him down, but he still held him by the hair. He called to his mother to cut the hair out of his grip. Both old & young Foubister then got up, but Hodgson lay still, and he was laying there still when I went away. [I] did not see old Foubister strike or kick him. [I] did not see anyone strike Mrs. Foubister, but I heard her scream, and could not see anyone – it was quite dark. Hodgson was not groaning, but said Foubister had killed him.” ¶ “When old Foubister first went over he said: ‘Let’s go and see what the dog has done.’ James went first, & his father after him. [I] heard old Foubister say: ‘You may eat it,’ but could not hear what Hodgson said. Saw Hodgson working on the Wednesday followg. [but] was not nigh to him.” Does not think that the Foubisters were angry when they went out. Does not know what their intentions were by going over. “I went over to see [B]22 what they were about. They seemed a little angry when they came home. I did not hear what answer Hodgson made, as he & Foubister were both out of doors, & I was in the house.” All which is truth, as the Deponent shall answer to God Compeared also William Lilly who, being duly sworn and interrogated, deponed: That he heard a shot on the night in question. “I got up and [went] out, and heard Hodgson say that he had shot two dogs that night. Then Foubister said: ‘Then eat them. What harm has my dog done?’ Hodgson answered: ‘Come and see,’ but Foubister said: ‘Bring it here.’ Then the Foubisters said ‘Let’s go and see.’ [I] heard Js. Foubister say: ‘Come out and I’ll give you your supper.’ I only went as far as the fence, so saw nothing – can only say what I heard. Js. Foubister said: ‘Let it alone till Monday, and we will fight fair.’” All which is truth, as the Deponent shall answer to God. Compeared Mrs. Cne. Foubister who, being duly sworn and interrogated, deponed: That she heard a shot soon after going to bed, went out, & saw her dog passing lame. “[I] heard Hodgson say: ‘That’s two dogs I have shot tonight.’ My husband asked what harm the dog had done, [and] Hodgson said: ‘Come & see.’ I accompanied my husband to Hodgson’s. When I came there [I] saw my son and Hodgson pulling each other’s hair.” She reproved them [and] her son said: “Let it alone till tomorrow.” Hodgson said to Deponent: [B]23 “You old Devil get out,” and struck her. “Then my husband laid hold of Hodgson and threw him down. He got up again and rushed out and seized a stick. My son then said: ‘Let it alone till Monday.’ He again took hold of my son, who threw him on the ground

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where he lay still holding my son’s hair. My son called on me to cut the hair out of Hodgson’s hand. Then my husband threw Hodgson away from my son after loosing his hair from his hands. My husband threw Hodgson down after he struck me. [I] had never heard any complaint of the dog.” All which is truth, as the Deponent shall answer to God. After Doctor Bunn had summed up the evidence, & had explained to the Jury that it was for them to find the Defendants guilty or not guilty of the assault, & after commenting all through the evidence, he requested them to banish from their minds every party feeling, but return their verdict according to the evidence they had now heard whether guilty or not guilty.246 After some time the Jury returned the following verdict: John Foubister: Guilty; James Foubister: Guilty; George Robertson: Not Guilty Sentence: John Foubister Fine to Pubc. Fnd. James Foubister do. “ do. do. Costs of case

£ 3.00.0 2.00.0 12.6 £5.12.6 247

[B]24

Public Interest vs. Mrs. Shepherd [Case 98] For Selling Beer to Indians Defendant pled Not Guilty. The following Jury were then sworn, viz.: 1. Thomas Logan 7. George Groat 2. Neil McDonald 8. Magnus Brown 3. François Bouvette 9. John Fraser 4. John Polson 10. Robert Sanderson 5. Willm. Tait 11. Willm. Drever 6. Hugh Polson 12. Willm. Tait PD [?] Peetaqueeuchewan, sworn in the Indian manner248 by an Interpreter duly sworn, deponed: That on Monday last he went to the house of Mrs. Shepherd with another Indian about the hour of 9 or 10 o’clock, a.m., and gave Mrs. Shepherd a five shilling note, “out of which she gave me beer for three shillings, and gave me two shillings in cash. She told me first that she had none, and when I was going away she called me back and sold me 3/ worth. She was alone when I got the beer.”

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Teebeescookemeek, being sworn in above manner, corroborated the former witness. Defence: Michael Connell who, being duly sworn and interrogated, deponed: That he was in Mrs. Shepherd’s house last Monday afternoon when two Indians came in and asked for beer. Mrs. Shepherd told them to be off – that she had none. All which was truth, as [B]25 the Deponent should answer to God. Compeared also Mrs. Catherine Oakes who, being duly sworn and interrogated, deponed: That on her way up to Mrs. Shepherd’s she saw Indians drinking at the stables with the boatmen, and as she returned she met Indians going up, & went out of the way to keep clear of them. All which was truth, as the Deponent should answer to God. Verdict: Guilty Fine £5.0.0 Restitution 3.0 249 £5.3.0 Three shillings immediately restored to the Indian, & ten days allowed to pay the £5.

Public Interest vs. Mrs. Shepherd [Case 99] For Selling Beer to Indians This case was not entered into, as Doctor Bunn and the Jury begged of the Governor of Assiniboia not to prosecute, as the former case with the heavy fine attached to it they thought would be quite sufficient on her to prevent further acts of aggression against the beer law.250 [B]26

The Quarterly General Court Held at the Court House on the Eighteenth day of November, 1852 Present: Major Caldwell, Governor of Assiniboia, President Doctor Bunn, Justice of Peace Cuthbert Grant Esqr., do. do. Mr. William Ross, Sheriff

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J. Bapte. Charboneau versus Michell Cadotte [Case 100] [Conversion (Civil Theft) of Logs] Plaintiff stated that he had hauled 53 pine logs from The Pines,251 and had left them piled up at the end of Defendant’s barn. Sometime after, he sent for them, and only found 24. And he rose the present action for the value of the 29 missing logs – and likewise for the loss he had sustained by sending down sleds and people who were obliged to return light. He stated his damages at £6. Defendant denied the charge. And the follow[ing] Jury were sworn: Robert McBeath André Carrier James McKay Bapte. Perreault Willm. Bird Thos. Harrison Willm. Brown Louis Reille252 Willm. Flett Louis Berrard Morisn. McBeath Martin Lavallée [B]27 Eduard Marion who, being duly sworn and interrogated, deponed: That he had got four logs from the logs belonging to the Plaintiff, he saying he would return them to the Plaintf. Cannot say how many there might be in the pile. All which was truth, as Deponent should answer to God. Compeared also Joseph Flammond who, being duly sworn and interrogated, deponed: That he saw Defendt. load three sleds from off the said pile of logs belonging to Plaintf., but cannot swear how many there might be on each sled. All which was truth, as Deponent should answer to God. Compeared also William Flett 253 who, being duly sworn and interrogated, deponed: That the Plaintiff asked him to go to the father-in-law of the Defendt. to interpret between them. Plaintf. wished to purchase some hay from him. The old man gave him some hay, and then Plaintf. said: “I am now due to you two shillings, and if I do not pay you, you can take two of my logs, as they are a shilling apiece, and they are laying at Willm. Flett’s bank.” All which is truth, as Deponent should answer to God. Compeared also Joseph Vandal [who], sworn and interrogated, deponed: That he was employed by Plaintiff to haul up some logs. “I went in company with Plntf’s son. We were in all five sleds. When we got to the place we found only five logs. Defendt. was at The Pines, and as I did not

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like to wait I took up the five logs with my two sleds, & left Plntf’s son waiting for Defent. He waited 2 days, and brought up four logs. Five shillings is the regular price paid for a sled for the trip to the Lower Fort, which is only [B]28 little more than half way.” All which is truth, as Deponent, &c., &c. Compeared also Baptiste Charboneau who, being duly sworn and interrogated, deponed: That he had hauled the above logs, and had piled them and counted them before he left, and there was fifty three. “And when I returned again there was only twenty four. Defendt. would not give me any. I got four logs on account of a bargain for a ax I sold to Deft., which had nothing to do with the 53 logs. All that we got of the 53 logs was 26.” All which was truth, as the Deponent should answer to God. Verdict for Plaintiff: Defendt. to pay damages £5.05.00 Costs 1.03.06 10 days to pay £6.08.06

John Foubister versus John Hodgson [Case 101] Assault & Battery [Civil] Damages laid at £12 Plaintiff pled that the Defendant had struck his wife.254 Defendant denied the charge. The following Jury were then sworn: Donald Bannerman William Dennison John Vincent John Matheson William Gunn Charles Fidler J. Harper John Atkinson George Sutherland John Polson William Stevenson George Setter [B]29 James Foubister, being duly sworn and interrogated, deponed: That a quarrel having taken place in [respect of] which he, Witness, was one of the defendants, and the Defendant was plaintiff at the last General Court,255 the present case arose from the same affair. He saw Defendt. strike his mother while she and some other women were endeavouring to pacify the Defendt. “I heard him say to her: ‘You old devil, I’ll give it you,’ and then struck her. [I] did not see any marks on my mother. I do not think, from his manners, that he was friendly towards me previous to the quarrel. After he had struck my mother we had a scuffle.” All which was truth, as the Deponent should answer to God.

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Compeared also George Robertson [who], being duly sworn and interrogated, deponed: That, he saw Defendt. strike his aunt in the porch of his house. “I heard him say ‘You old devil you’ll get it,’ and then he struck her – while she was trying to make peace. I am quite sure that no-one has told me what to say. I did not perceive any of the Foubisters to be angry when they went over to the Defendt’s house.” All which, &c., &c. Compeared also Fanny Robertson who, being duly sworn and interrogated, deponed: That she did not see anything, as she stood about halfway between the two houses. But she heard old Foubister say: “You have struck my wife,” & James Foubister said: “You have struck my mother – come out and I’ll give you your supper.” All which is, &c., &c. Compeared also William Robertson who, being duly sworn and interrogated, deponed: That he heard Defendt. say: “You old Devil – what are you seeking here?” “And then I heard a blow, but did not see who was struck, it being dark in the porch.” All which is truth, &c., &c. [B]30 For the Defence: Nancy Davies, who being duly sworn and interrogated, deponed: That John Foubister came over with his son and G. Robertson. “Young Foubister rushed past me, saying to Defendt.: ‘You crawling image [sic].’ They then began to fight, and I heard Js. Foubister say: ‘Come out, come out,’ but could not see, it being dark in the porch.” [She] has heard Fanny Robertson say that Mrs. Foubister would not be quiet till she got her husband & son to go over to the Defendt’s. “I heard Mrs. Foubister call out: ‘Don’t strike me Johnny,’ but did not hear any other person call out concerning the blow. I was not nigh to Mrs. Foubister. It was moonlight sometimes, and shined in the porch. There is a small window in the porch. Defendt. was marked. His hair from one side was pulled out, and for three days he could not work.”256 Verdict for Plaintiff: Damages .05 Costs 1.03.06 Defendt. to pay £1.08.06

257

Louis Plouff versus Robert Sandison Junr. [Case 102] For Assault & Battery – Damages laid at £2 (Nominally £5 to bring it before this Court)258

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Plaintiff stated that he had brought this action for the above damages for striking his wife.

Defendt. denied the charge. The following Jury was then sworn: [B]31 Robert McBeath Louis Gallerneau James McKay Alexé Goullette William Bird Louis Reille William Brown Louis Berrard William Flett Morrison McBeath André Carrier Martin La Vallée Deliette L’Pierre, who being duly sworn and interrogated, deponed: That the Defendt. brought home Plaintiff’s horse that had been borrowed. He gave the line by which the horse was tied to Mrs. Plouff, after which he took it from her again. After she asked him where was the money, meaning the hire of the horse, “he then told her to look in her box for it, and [said] that she was a drunkard. When I went in I heard a blow, & on returning saw Mrs P. on the ground. Her daughter had wrenched the billet259 (now produced) from his hands. He then took a broom handle. This the daughter took from him, and ordered him off.” All which was truth, as Deponent should answer to God. Compeared also Madame Broconnier who, being duly sworn and interrogated, deponed corroborative of the last witness – only she ([being] the daughter alluded to by last witness) adds that after seeing Defendt. strike the blow, & taking the sticks from him,260 he attempted to strike with his hands, and had struck her mother in the side. All which was truth, as Witness should answer to God. Compeared also François Jandron who, being duly sworn and interrogated, deponed: That he had heard two blows given by someone; but when he arrived it was all over, and Defendt walking away. He found Mrs. P. on the ground, and assisted to take her into the house. Saw [B]32 the last witness with a stick in her hand, which she said she had taken from Defendt. “I also saw the bruise on Mrs. P’s side.” All which is truth, as the Deponent should answer to God. Defendant having no witnesses, he replied that on his coming to the house: “I told Mrs. P. that I had brought home the horse. She replied – twice over – ‘You are a horse,’ and likewise called me a ‘todmard.’”261 Verdict for Plaintiff:

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Damages Costs Defendt. to pay in 10 days

209

£0.05.0 0.16.6 £1.01.6 262

[B]33

The Quarterly General Court Held at the Court House, 17 th February, 1853 Present: Major Caldwell, Governor of Assiniboia, President Doctor Bunn, Justice of Peace Cuthbert Grant Esqr., do. do. Mr. William Ross, Sheriff

Thomas Corrigan versus Alban Fidler [Case 103] [Accounting] This was a case of Appeal from the Petty Court.263 Jury: Robert McBeath John Sutherland William Taylor Henry Brown George Groat Joseph Bird

George Adams William Sletter Henry Norquay David Spence Selkirk McKay William Thomas

After the above Jury were duly sworn, The Plaintiff stated that he had sold beer for the Defendant at the rate of 1/8 commission; but, some of the beer being bad, [he] had refused to take it to sell, & had informed Pltf. [sic: Deft.?] and family of the fact of the beer being sour. And [he] had paid at dift. times the sum of £9.3.0, but had not at any time received an account of the quantity of beer received from Defendt. He had given 4 galls. [back] to daughter, & 8 galls. [that] Defendt’s wife refused to take back – & also 1½ galls. Defendt. had called for & drank [B]34 in his, the Pltf’s, house – the whole of which he had not deducted from his account. And that he had paid the following sums [to Deft.], viz: 3rd August 6 do. 16 do.

£1.05.0 2.00.0 1.14.0

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19 do. 25 do. 6 Septr.

1.00.0 1.00.0 2.04.0 £9.03.0

Compeared Michael Connol who, being duly sworn and interrogated, deponed: That he saw Defendt. at the back of the fence, who asked him if he would sell beer for him. Witness refused, but told him that he thought Pltf. would, and then the Pltf. agreed to sell beer for him at the usual rate 1/8 for himself. Does not know what money passed between them, but knows that some of the beer was very sour & bad. All which is truth, as Deponent shall answer to God. Compeared also Patrick Collins who, being duly sworn and interrogated, deponed: That he was in Pltf’s house and saw Defendt. there. “He was talking with Pltf’s wife about money, and I saw Deft. take out some money in his hand, and said that it was all right.” Does not know if Deft. called for beer. All which was truth, as Deponent should answer to God. Compeared also Mrs. Corrigan who, being also duly sworn and interrogated, deponed: That she had [B]35 paid over to Defendt. and his family the following sums of money, viz: 3 August 9 do. 16 do. 20 do. 27 do. 6 Sept.

£1.05.0 2.00.0 1.14.0 1.00.0 1.00.0 2.04.0 £9.03.0

And that she had given to Defendt’s daughter 4 galls. of beer so sour that the daughter spilt it away, & a keg, again of about 8 galls., she offered to Defendt., which he refused to take back; and that she had supplied Defendt. with 1½ galls. of beer, which he drank in her house. Defendant pled that he had furnished the following quantity of beer to the Pltf., & which he was to receive 1/8 for his trouble, viz: 22 July 24 “ 30 “

31 45 39

galls. “ “

General Quarterly Court of Assiniboia Records, 1848–54

3 August 19 “ 25 “

42 40 40 237 Deduct 1/8: 29 5/8 207 3/8 1 keg of beer

“ “ “ “ “ @ 1/ p. gall. @ 5/

211

£10.07.04 ½ 05.00 £10.12.04 ½

Recd. the following sums: 24th July 30 “ 3 August 16 “ 25 “ 6 Septr.

£1.00.00 1.00.00 1.10.00 1.13.00 1.00.00 2.04.00 £8.07.00 8.07.00 £2.05.04 ½ the sum sought.

[Defendant] denied having called for beer & had [not] drank beer at the house, [except that] which had been given to him. [B]36 He swore264 to the correctness of his a/c. The case being concluded, Doctor Bunn summed up the whole, & pointed out the discrepancies. The Jury then retired, & after a short time brought in the following written verdict:265 “Verdict: We unanimously find that Alban Fidler’s account is correct deducting for sour beer & beer drank – 13.06 – leaving a balance to A. Fidler as follows: Sum sought Deduct Costs

£2.05.04 ½ 13.06 £1.11.10 ½ 01 £1.12.10 ½”

Donald Murray versus Antoine Morand [Case 104] [Debt]

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Defendt. not answering to his name after three times being called, the Constable Charboneau was duly sworn to having duly delivered the summons, and the Court then pronounced judgement by default.266 [B]37

William McDonald versus Joseph Maximilian Genton [Case 105] [Ownership of Horse] Jury: Donald Murray Pierre Berrard Robert Munroe Romain Lajomonier Roderick McBeath Baptiste Bruce

Angus Henderson Duncan McDougal John Fraser Francois Bouvette Hugh Matheson Charles La Rence

Plaintiff, being duly sworn and interrogated,267 deponed: That he lost a horse foal when a year old. He had heard that the Defendt. had found a horse, on which he went to him and described all the marks. “He was not at home himself but [I] told his brother to get witnesses before I saw the horse. He replied that it was no use to get witnesses, as the marks he had given were correct. The person who was with him offered to swear to the marks of the horse.” He [Plaintiff?] offered to pay his demand for his trouble [Defendant’s?] in fetching the horse home. “He [Defendant?] acknowledged that the horse was not his, but would not give him up, as the person with whom he had changed horses might not like it. He likewise said the horse was rising four. He likewise said I had not proved the horse to be mine. I had endeavoured to burn the horse with a ring in the neck before turning him out, but the ring got cold before I got to the horse, & only singed the hair. I had heard that a horse was found, but had spoke to no-one. My horse is rising 5 years.” All which is truth, as Deponent should answer to God. [B]38 Compeared also Morison Macbeath who, being duly sworn and interrogated, deponed: That, on 22nd January, “I had heard that Macdermot’s son had offered to buy the horse at all risks. I know the marks of the horse, which are these: both hind feet white and a white mark on one of the front ones,” but [he] does not know which one – and a white face. [He] can and does swear to the marks, corroborates the Pltf. in the conversation[s?] with Defendt. & his brother, and values the horse at £20. All which is truth, as Deponent shall answer to God.

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Compeared also William Henderson who, being duly sworn and interrogated, deponed: That the winter after the foal was lost he was out looking after horses, and he then saw a horse, which horse he knew to be the Plaintiff’s horse, and was sure of it. Tried to catch him but could not. Left him there. Took good notice of him, then and there. Did not see him again till I saw him at Defendant’s. “[I] am sure that it is the Plaintf’s horse from its general appearance. Frequently saw him while home: has two white hind feet and a white mark on one of the fore feet, and a white face. He is now rising five years.” All which is truth, as the Deponent shall answer to God. Defendant sworn268 and, being interrogated, deponed: That Plaintf. came to his house when he was absent. When he came home his brother told him that people were come about the horse. “I told them if they could give the marks and swear to the horse they should get it. They said that in the spring a mark would shew. I said: ‘If the horse has been stamped, show it.’ They said it [B]39 had been stamped in the neck, but when the neck was shaved no mark could be seen. I had changed horses at the White Horse Plains and, in seeking for this horse that I had changed for, found this one. I and 3 others sought a whole day. Urbin Delorme went down the Settlement and told [publicly announced] all the marks. I published the horse, and have kept him 35 or 36 days. The horse is only by his teeth rising four years. Two other persons lay claim, but not till the spring. They give all the marks, as well as some other marks which the Plaintiff and witnesses have not spoke of.” All which is truth, as Deponent shall answer to God. NB: 3 persons swore that the horse was rising 4 years & 1 that it was rising 5 yrs.269 After Doctor Bunn had summed up the evidence on both sides, he left the case in the hands of the Jury to determine. After a short time the Jury returned the following written verdict: “We have unanimously agreed that William MacDonald get the horse, and that Joseph Maximilian Genton get 30/ for taking home the horse, and 15/ for keeping him, and that MacDonald pay the expences of the Court.”270

Baptiste Goullet versus Joseph D’Lonais [Case 106] For a Debt of £7 Jury: Alexé Lespèrance [blank] Ayotte Jean Amlin

Jérèmé Muran François Boudron Josh. Flammond

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[blank] Sayvoyard Toussaint Fois Benjamin Lajomonier

Josh. Hupeé Janvise [?] Richotte François Gendron

[B]40 Plaintiff: “I sold a mare to Defendant for £7, which was to be paid £3 value, viz.: a heifer, and during summer £1, and £3 when the boats returned in the fall. The mare was returned some time afterwards, but I refused to take her back.” Baptiste Moron, being duly sworn and interrogated, deponed: That Defendant came to Plaintf’s house and said that he would give him a heifer, value £3, and £1 during the summer, and £3 when the boats came back from YF [York Factory], for a mare. Plaintiff told Defendt. he knew of no other malady that the mare had except she limped a little in the haunch. All which is truth, &c., &c., &c. Compeared also Moyes Goullett [who,] being duly sworn, deponed: That he was present at the bargain, & corroborated the preceding witness. And further: the Plntf. came to him and asked him to go with him to Defendt’s to break the bargain, as the heifer was only 2 instead of 3 years old. “I advised him to leave the mare. The father of Defendt. said the mare was sick, and had a swelling in her belly, & that he had yoked her and hauled a load of wood on her. I used the mare two or three days before he changed it, and it was well.” All which was truth, as &c., &c., &c. Defence: Joseph D’Lonais, being duly sworn: “I went as mentioned to ask if Pltf. would sell his mare for £7, and we agreed on that price; and I promised if I did not give him money [I] was to give him merchandise. When the mare was brought it was very thin [B]41 and poor. I asked if she was well, but after a few days I found her sick. And I mentioned it to him, but he denied that she was ill. On the eighth day I sent her back. I then offered £1 to break the bargain, and I offered to put her in the hands of someone, but he refused, saying there was nothing the matter with her. I bled her and she got a little better.” Compeared also Joseph D’Lonais, Père who, being duly sworn and interrogated, deponed: That he heard Defendt. tell him [the Plaintiff]: “You said your mare was well?” “Yes,” he said, “and I say so still, and if it dies it dies on your hands – and you have only given me a 2 yr. old heifer in place of one of three.” “I replied: ‘Your mare is dying.’ [The Plaintiff asked:] ‘What is the matter with her?’ I replied I could not tell.” All which is truth, as Deponent should &c., &c.

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Compeared also Javotte Parrisien who, being duly sworn and interrogated, deponed: That she had not seen the man riding the mare, but saw her when he let her go loose, and she was sick. She was bled and got better. All which was truth, &c., &c., &c. Compeared also Eusaint Parron, [who was] sworn and deponed: That he was not present at the bargain, but he knew her in the spring to be sick. Pltf. told him his mare was for sale for £7. “I told him his mare was not well.” All which is truth, &c., &c., &c. After Doctor Bunn summed up the evidence, the Jury retired and returned the following verdict: Defendant to pay the mare and costs

£7.0.0 1.0.0 8.0.0

[B]42

Upper 271 General Quarterly Court, held at the Court House On Thursday 19 th May, One Thousand Eight Hundred and Fifty-three At which were present, viz.: Major Caldwell Gov. of Assa., President Doctor Bunn C.272 of do., Justice of Peace Doctor Cowan do. do., do. do.273 Mr. Thomas Thomas do. do., do. do.274 Cuthbert Grant Esqr. do. do., do. do.275 Mr. François Bruneau do. do., do. do.276 “ William Ross do. do., do. do.277

Public Interest versus Charles Demarais [Case 107] For Housebreaking & Stealing Jury: 1. Neil McDonald 2. Charles Fidler 3. Louis Berrard 4. John Folds 5. Narcise Marion 6. William Clouston

7. Louis Thebeault 8. George Irvine 9. Louis Gallerneau 10. William Drever 11. Thomas Harrison 12. Joseph Robillard278

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The Prisoner, being placed at the bar and called upon to plead to the Indictment, pleaded Guilty of having broken into and stealing from a house. The Bench sentenced him to 6 mths. imprisonment from the time of his committal (9th March). [B]43

Pascal Berland 279 vs. Walter Bourke [Case 108] For [Ownership of] a Horse Plaintiff stated his case: that he had lost a foal three years past, and which foal he now found in the possession of Defendant and had rose this action to recover his horse as the Defendant refused to deliver him up.280 The following Jury was then empanelled:281 1. James Tait 7. William Flett 2. Louis Gardupied 8. A. Barnabé 3. John Pritchard 9. Alexr. McBeath 4. Pierre L’Rocque 10. Pierre Jollibère 5. Hugh Matheson 11. Richd. Salter 6. Charles Barrow 12. Joh. Marie Bouché Plaintiff stated that, three years past, he was on his way to the plains, & he had left this horse with another at Stinking River amongst other horses. It was then one year old. “Before leaving this horse I had that same spring stamped it with the letter P. Subsequent to this, Martin L’Valleé brought in this horse and another one, and still later he was seen frequently by the McGillis’, and at about the same place from whence he was taken by Joseph Maximilian Genton last January. While a foal he was in my possession during the whole winter previous to stamping her [sic], and I have not seen it since I left it at Stinking River till last April at the Defendant’s house. [B]44 I know the horse is mine – that he sucked his dam till I separated them at Stinking River, and I had no other colt of that season of the same colour.” Compeared also John Baptiste Fainyeant [who, being] sworn and interrogated, deponed: That he saw Pascal Berland stamping a colt that was sucking with a P in the spring of the year on the left thigh. “I saw the colt sucking a mare which I knew to belong to Mr. Pascal Berland. I have not seen that colt since. The colt was a light chestnut-coloured one with a white nose. There was no other foal following the mare. Plaintf. is in the habit of marking his foals every year. I was 14 years of age at the time. I never saw any other colt with a P stamped on it. I have seen Plaintf. stamping others

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the same spring – even the same hour. I examined the foal when sucking – it was a horse foal.”282 The Witness here went out to see the horse, and on his return continued: “I have seen the horse – the same P as the one I saw stamped to the best of my knowledge, and the horse is the same with the same marks. Only the colour is changed a little, and to the best of my belief the horse is the one I saw stamp’d.” All which is truth, as Deponent shall answer to God. Compeared also Louis Morand who, being duly sworn and interrogated, deponed: That 3 yrs. ago Pascal Berland marked a foal while sucking a mare – which he, Deponent, knew to be Pltf’s. mare – on the left thigh of a horse foal: a chesnut colour, white [B]45 face. “I did not see it the winter before the stamping of it, but saw it when stamping, & knew it to be Pltf’s mare’s foal. It was on the other side of the river (S. side) where they stamp’d the horses. I have never seen it since. (Witness was here shown the horse.) I have seen the horse, and to the best of my belief I think it the same horse I saw stamp’d 3 yrs. ago. I was then 15 yrs of age.” Compeared also William Berston who, being duly sworn, deponed: That 3 yrs. ago he saw a foal sucking a mare belonging to Pltf., and the foal had a fresh mark on his thigh where he had been stamped with the letter P. “I knew the mare to be the property of Mr. Berland. I helped to separate the foal from the mare at the Stinking River on our way to the first hunt, & I assisted the Pltf. to stamp other horses – how many cannot say. He has a good many stamp’d on the thigh, and he is in the habit of marking his horses – sometimes on one thigh, sometimes on the other. His mark is the letter P.” All which is truth, as the Deponent shall, &c., &c. The Plaintiff here produced the stamp with which he had stamp’d the horse. Compeared also George Flett who, being duly sworn and interrogated, deponed: That the Plntf. had called him to see him put the cold stamp on the horse – to see if it fitted to the brand already there – “and, to the best of my belief, it was the very brand by which the horse had been branded.” All which is truth, as Deponent shall answer to God. [B]46 For the Defence: Compeared also Willm. MacDonald [who,] sworn and being interrogated, deponed: That he had sold the horse in question to Defendant, it being the same horse that this Court had awarded to him last February, and which came to him by the decision of the Jury.283 “I had let a foal loose to

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graze in the spring, and did not see it again till last Court, being a period of three years. The horse is now four years old. I had it sought for, but could not find it.” ¶ “During the ensuing winter, Willm. Henderson was off looking for horses, and he informed me that he saw my foal at the Sturgeon Creek. During this last winter, Henry McDermot came to me to enquire if I had not lost a horse; I told him I had lost two. I then told him the colour of my horse was light red, white nose, and one foreleg white a little above the foot. I heard that Maximilian had found a horse. I then described to Constable J. Matheson the marks on the horse I had lost, & went with the said Matheson & Morison McBeath to Maximilian’s house. The above persons told Maximilan that they had come to identify the horse, and before seeing the horse gave a full description of all the marks. And when we saw him we immediately knew it to be my horse. I offered to pay for the trouble and expence of bringing it home, but could not get it.” ¶ “Before letting my foal go in the spring. I had attempted to brand him with a hot ring but as the foal was at a distance [B]47 from the fire the iron got too cold to do more than burn the hair, and when I was identifying this horse I shaved the place to see if it still shewed. I never heard of the Plntf’s claim to the horse till I heard of it from Maximilian here in the last Court.” All which is truth, as Deponent shall answer to God. Compeared also Morisson McBeath who, being duly sworn and interrogated, deponed: That when he first heard of a stray horse being seen, & that Urbin Delorme and Mr. McDermot offered to buy Wm. McDonald’s chance of it ... [sentence incomplete] That when he was [captured and] brought down [to the Settlement], “I went with John Matheson & Wm. McDonald to see it. I told before seeing the horse that if it was Wm. McDonald’s horse it had 2 hind feet white and 1 forefoot a little white; & when I saw the horse I was sure, as the marks did not differ a hair from the marks I had given, and I felt convinced it was McDonald’s horse.” Has not seen the horse since. Is close neighbours to McDonald. All which is truth, as Deponent, &c., &c. Compeared William Henderson who, being duly sworn and interrogated, deponed: That he knew McDonald’s foal well. “The same summer he was put out I was seeking horses, and saw McDd’s foal with another one, following a mare. Again the next winter (1849) I saw it – about Christmas at the back of White Horse Plain – and tried to catch it, but could not. He had then cast his old hair and shewed well. He was then 1 year & rising two, I believe.” Did not see it again till he saw it at Maximilian’s, and once again at this Court last Feby. “And to the best of my belief it is the same horse I

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saw at the [B]48 back of the White Horse Plains & at Maximilian’s. And know the horse is five years old.” All which is truth, as the Deponent shall answer to God. Compeared Martin Lavallée [who,] sworn and being interrogated, deponed: That he had a horse which he had marked. “I sent my two sons to seek it, and they were very nigh taking a horse belonging to Plaintiff, it being so much like my one.” The Plaintiff had marked a horse belonging to Witness. Cannot say that he did so maliciously – rather thinks not, as the Pltf’s horse & Witness’s were so much alike, and might in consequence have been [marked] under a mistake. It is now 3 years since this happened. It was in the month of June. “I saw the brand on my horse quite fresh on the thigh.” All which is truth, as Deponent should answer to God. Compeared also Maximilian Genton [who,] being duly sworn, deponed after examining the horse that to the best of his belief the horse was only 4 years old. Do. also, Isidore Dumas corroborated the above as to the horse’s age. “ also François Xavier Plante corroborated the above two witnesses as to the horse’s age. After Dr. Bunn went over the whole of the evidence, the Jury retired, and after a considerable time returned the following verdict: “That with reference to the age of the horse, as well as the brand & other marks, it should be given to Plaintiff as his horse.”284 [B]49

Pam Sanders vs. William Bird [Case 109] Assault and Battery – Damages laid at £10.0.0 The following Jury were empanelled, viz: 1. Neil McDonald 7. William Tait 2. Charles Fidler 8. James Spence 3. John Foulds 9. Thomas Logan 4. William Clouston 10. Roderick McBeath 5. George Irvine 11. George Sutherland 6. Jeremiah Cook 12. William Driver Plaintiff stated that he was passing the [Defendant’s] premises. “I saw him at his door, and he asked me to pay what I owed him. I asked him how

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much I owed him. He said for grinding 6 bushels of wheat. I said I did not owe him that much, as he had only ground 5 bushels for me. He said he would sue me, and called me “a rascal,” [and] “a damned thief.” And [I said] that he had been proved a thief. And [he] then held up his fist in a threatening manner, and gave me a blow with a stick I now produce.” W. R. Smith Junr. 285 [was] sworn, and deponed: That he saw Plaintf. & Defendt. together, and he heard Defendt. call Pltf. a “thief.” And Pltf. said that Deft. had been proved a thief by Mr. Slater & Jemmy Knight. And then Defendt. shoved Pltf., who said: “You had better take care of yourself,” and then Deft. took up the stick and gave Pltf. a blow with the stick [B]50 now before the Court. Defendt., after the blow, raised the stick again, and threatened to break his head. Pltf. warned him to take care, & then challenged him to turn out and fight fair, which Defendt. would not do, saying he was not well. Does not know of any previous quarrel. Defendt. was the first who used bad language, calling Plntf. thief and liar, and [said: “You] stole wood from me.” “All this was on my father’s lot. He struck him on the shoulder – did not knock him down. There was cursing and swearing on both sides.” Compeared also Caroline Smith [who, being] sworn and interrogated, deponed: That she heard Pltf. say: “I was never proved a thief as you were.” Deft. said: “Who by?” Pltf. said: “By Slater & Knight.” Then Defendt. pushed Pltf., who said: “Come, come, I’ll stand none of your nonsense.” Then Defendt. took up a stick and gave a blow to Pltf. – “the same stick now before me.” He went two or three yards to take up the stick. Did not see Pltf. offer to strike, but saw him shake his finger in a menacing way. All this happened in the morning – early on a Friday. Does not know the date. All which is truth, as Deponent shall answer to God. Defence: [Defendant stated:] “I was walking about before my own door, being ill. [I] took Pltf. for someone else, but seeing that it was him I asked him civilly for what he owed me. He denied he owed me anything, and pleaded that he had worked for my son, but did not say a whole day – and [B]51 promised to pay, but said I would have to wait for it as long as I had done. I said if I did not get my payment soon I would be obliged to prosecute. He said I might prosecute and be d ... d, & that I only got over him at the Petty Court by pushing his nose up the Doctor’s a .. e. He then left me, giving me abusive language, and told me I was [a] d ... d liar, and called me a d ... d thief – and that Slater & Knight said I stole out of the mill. He had left me, and was near on Smith’s premises, when he came towards me & put his fist in my face and called me a d ... d rascal & thief. I then struck him.”

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The case being summed up by Doctor Bunn, the Jury retired, & after a short time returned a verdict for the Plaintiff: Damages: Costs:

0.05.00 0.21.06 1.06.06 [B]52

The General Quarterly Court Held on Thursday 18 th August, 1853 at which were present, viz: Major Caldwell, Governor of Asssiniboia, President Doctor Cowan, JP Thomas Thomas Esqr., JP François Bruneau, JP Robert McBeath, JP William Ross, JP, [&] Sheriff Thomas Sinclair, JP286

Public Interest vs. [blank] Kanistre [Case 110] Theft Jury: Henry Brown James Taylor Robert Miller Chas. Larence Jno. Sletter Amable Nault

Baptiste Perrault Willm. Brown Jas. Sutherland Emanul. Champayne Joseph Savoyara Pierre Berrand

Robert Flett sworn in as Interpreter. John Harper, being duly sworn and interrogated, deponed: That on the 22nd of July his wife hung out clothes, and on the following morning they were away. He had no suspicion of anyone till late in the afternoon, “when I heard of the Prisoner having been going about.” He went immediately in search of her on Monday morning, and met her at the outer gate of Upper Fort Garry with part of the missing property on her person. She went with him to a tent and took off the clothes. The gown now produced he swore to as being part of the [B]53 missing property. He told the Prisoner what property he had lost. She then tied up a bundle and proceeded with Witness to

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Mr. Ross, where he identified the gown now produced, a cotton petticoat, a shift, & a cotton handkerchief. All of which was truth, as the Deponent should answer to God. Defence: The Prisoner stated that she had not stolen the property from the Prosecutor, but had taken them from another girl. Major Caldwell briefly addressed the Jury,287 after which they [the Jury] retired, and after a short time returned with a verdict of Guilty. Sentence: to be imprisoned for 2 months from the date of her committal (25th July)

George Flett vs. Paul La Ronde [Case 111] Debt of £6 The Plntf. in this case was acting by power of attorney, and stated that the Defendant was due [to pay] £6 to the party he represented, being the balance of a sum of £15. The Defendant acknowledged the debt, but said it was to be paid in kind, and not in cash. Pltf. stated that in the note of hand288 signed by Defent, he might have paid in kind, provided he had paid the balce. now sought by 1 June past; but not having done so it was cash he had to pay. Defendt. denied that there was any stated time for the payment in kind. [B]54 The President left it to the Jury to decide whether the debt should be now paid, & whether in cash or kind. The Jury, after a short consultation, returned a verdict for Plaintiff, to be paid in cash. The Bench decided that it be paid in 10 days with costs. Paid immediately in court.

Public Interest vs. Baptiste Fontaigne [Case 112] For Theft After having gone into the evidence, it appeared that there was not sufficient evidence. Therefore the President ordered the case to be dismissed: Not Proven. Commentary “Not Proven” is a verdict lying between “guilty” and “not guilty.” It signifies that while a court or jury do not consider the prosecution to have proved guilt beyond a reasonable doubt, as is required for conviction, they are not willing to say that the

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accused was innocent. In terms of penal consequences, it has the same significance as “not guilty.” Such a verdict was not then, or ever, possible under the laws of England or of Canada. It is, however, a verdict that is sometimes rendered by Scottish courts. If the court in this case really intended to issue such a decision, as opposed to simply using loose language to indicate a full acquittal, it was displaying yet another small influence of Scots law on the law of Rupert’s Land. Other such influences can be seen in some of the court’s terminology (e.g., “compeared,” “deponed,” “decerned,” “assoilized”). [B]55

General Quarterly Court Held at the Court House on Thursday 17 th November, 1853 at which were present: Major Caldwell, Governor of Asssiniboia, President Doctor Bunn, JP Doctor Cowan, JP Cuthbert Grant, Esqr., JP Thomas Thomas, do., JP François Bruneau, do., JP Robert McBeath, do., JP289 William Ross, do., JP

The Revd. Mr. Thebeault versus Mr. Andrew McDermot [Case 113] Debt of £305.08.04290 Mr. Thebeault requested that the Bench would be pleased to allow the Revd. Mr. Laflêche to plead for him, as he did not himself understand the English language. After some discussion on the Bench, it was granted,291 and the following Jury were sworn: Jury: 1. Donald Murray 2. Donald Gunn 3. Narcise Marion 4. François Bouvette 5. James Tait 6. Maximilian Genton

7. Solomon Amlin 8. Donald Bannerman 9. Pierre Poitras 10. Roderick Sutherland 11. William Flett 12. Pierre Berrard

The Revd. Mr. Laflêche pled that the present action arose out of the following transaction: Mr. Richd. Lane, of the Colombia, had given two bills [of exchange], one for £100 Sterlg., and the other for £205.08.04; and that

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these bills were given over to [B]56 the Revd. Mr. Thebeault to transact. He forwarded them to his late Lordship the Bishop of St. Boniface, who endeavoured to present them to Mr. McDermot; but when his Lordship went to Mr. McDermot’s house, he, McDermot, was from home, and his Lordship left the bills with Miss McDermot. The next day Mr. McDermot wrote this letter to the Bishop (Mr. Laflêche here produced & read a letter).292 From the contents of this letter, as it implied a full acceptance, the parties were satisfied till Mr. McDermot refused to cash these bills. Therefore, the revd. gentleman contended that the Defendt. ought to pay these bills for the three following reasons: “My first reason is that Mr. McDermot is obliged to pay the amount of these bills because he has detained them about one year, and he acknowledges himself bound to pay part of the amount by this passage in a letter to Mr. Thebeault, dated 26th Oct., 1853: ‘I make no doubt that I would be obliged to pay something for the detention of the bills.’ As Mr. McDermot has not only detained a part of the bills, but the whole of them, it follows that he is bound to pay the whole of them.” “My second reason is that in Mr. McDermot’s letter to the late Bishop of St. Boniface he therein has implied that he was willing to pay, and further that he was taking necessary steps to get the money to meet the bills; and also intimating to Mr. Lane to pay the interest till the arrival of the bill money. By such a letter, I find he is bound to pay not only a part, but the whole.” “My third reason is that Mr. McDermot’s detaining these bills, and sending a letter evidently implying the intention of paying, [B]57 and that by sending this letter, the bills were not applied for. It therefore follows that Mr. McDermott is the cause of the loss, and damages sustained by the parties complaining. Mr. McDermot is [therefore] bound to sustain the loss.” The bills were produced, & as neither of them were endorsed, the Bench could not allow the case to proceed, as the Defendt. was not obliged to pay any bill unless regularly endorsed. Plaintiff nonsuited. Commentary Bills of exchange, developed in Europe to facilitate international and other longdistance commerce, were indispensable on the North American frontier, where distances were vast, transportation rudimentary, and cash scarce. This case offers a good example of their usefulness, as well as a dramatic illustration of the need to follow proper procedures when making use of them. Andrew McDermot at Red River apparently owed money to Richard Lane on the west coast. Lane, in turn, was indebted to two persons there. In payment of his

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debt, Lane accordingly gave his west coast creditors bills of exchange calling upon McDermot to pay the stated sums to the creditors. If the creditors had happened to travel to Red River personally, they would simply have endorsed the bills with their signatures or marks, and presented them to McDermot for payment. If they had received payment, both McDermot’s indebtedness to Lane and Lane’s to the creditors would have been reduced to the extent of the payment. As it happened, however, the creditors did not journey to Red River personally. Instead, they or intermediaries negotiated (transferred) the bills to Reverend Thebeault, who was either at Red River or on his way there. Presumably this negotiation of the bills to Father Thebeault was in return for something owing to him or to his church, although it could conceivably have been a gift. Such chains of negotiation are thus capable of satisfying the parties to multiple financial transactions over great distances without the risky transport of any actual money. In this case, alas, the process did not operate as it should have. The problem was that bills of exchange payable on their face to named persons cannot be effectually negotiated to others unless the transferors (the original payees and all to whom the bills are subsequently transferred) endorse them by signature or mark.293 Someone along the line – perhaps Lane or intermediate transferees – failed to endorse the bills, with the result that the court, quite rightly, dismissed the plaintiff’s action. It is unfortunate that this was so, for it was unjust to those who failed to receive payment. This was one of the earliest cases in which the General Quarterly Court of Assiniboia was asked to determine a significant question of substantive law. In almost every previous case, the matters to be determined by the court were either factual or procedural.294 Here, however, Father Laflêche had presented a purely legal query: did Andrew McDermot’s equivocal conduct when presented with the bills, and his subsequent procrastination, constitute in law sufficient “acceptance” to make him legally liable, in whole or in part? From the perspective of the court’s history, it would have been interesting to know how the bench would, without the benefit of legal advice, have answered that question. It might possibly have reserved judgment until the next session of the court and, in the meantime, consulted cloistered “Court Clerk” Adam Thom or written to the HBC’s London headquarters for advice. But the lack of endorsement enabled it to dodge that question altogether.

Public Interest versus Susan Pheasant [Case 114] Stealing in a Dwelling House The same Jury. The Prisoner pleaded Guilty. The sentence of the Bench was three months’ imprisonment from the time of committal.

Public Interest versus Mutchékeesic and Ogemapeenase [Case 115] Burglary

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1. Louis Rielle 4. Bapte. Larmond 7. Martin La Vallee 10. Romain Lajmonier

Jury:295 2. Jeremé Meuron 5. Josh. Savoyard 8. Antne. Bruce 11. Josh. Flammond

3. J. Bt. La Pine 6. [blank] St. Germaine 9. Thos. Frobisher 12. Jne. Robillard

[B]58 Mutchékeesic pleaded Guilty. Ogemapeenase pleaded Not Guilty. François Mandville [a constable?] who, being duly sworn and interrogated, deponed: That Ogemapeenase was standing at the window of the store while the other Prisoner (his brother) Mutchékeesic was robbing inside of the same store; and they [had] gone off with the property which they had taken. Deponent was sent after in search of them, and after eight days’ search found them with the stolen property, and brought them here. All which is truth, as Deponent should answer to God. Dr. Bunn296 left the case in the hands of the Jury, who, after a short deliberation, brought in a verdict of Guilty against both Prisoners. Sentence: to be imprisoned till June next, and at the expiration of that term to be banished for two years. [B]59

Coroner’s Inquest Held at Hugh Matheson’s house on the body of a Newborn Infant On the 21 st day of November, 1853 [Case 116a] 297 [Inquest: Death of Newborn Child] Before Dr. Bunn, Coroner for the District of Assiniboia and the following Jury: 1. Thomas Thomas 2. John Harper 3. William Thomas 4. John Vincent Senr. 5. William Knight 6. James McKay 7. William Bird Senr. 8. John Pritchard 9. William Bunn 10. Donald Murray 11. Alexander Dahll 12. Morisn. McBeath Mrs. Hugh Matheson, who being duly sworn and interrogated, deponed: That she suspected Elisa Duncan (her servant girl) four weeks ago was pregnant, and charged her with being so. She denied it. [Deponent] suspected from her condition last Saturday that she was in labour. She said she was in pain. [Deponent] saw her in the hay yard, [where] she complained of being in pain. She had been lying on straw, but jumped over the fence on being spoken to. During the same evening (Saturday) Deponent charged her

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with being pregnant, [but] she again denied it. After she (Elisa Duncan) returned to the house, she appeared to be in great pain, and apparently in labour. ¶ About 6 or 7 o’clock p.m. she was again charged with being pregnant and, short[ly] after, Deponent missed her from the house. Sometime after, Deponent’s husband brought her (E. Duncan) into the house. She still appeared to suffer pain, and her clothes were soaked with blood, and [there were] marks of blood on the floor where she had sat. She looked pale and weak. Upon her being again charged with being pregnant, she said the appearance of her state was from the effects of the usual malady. ¶ She remained in bed till morning, went out during the night for a short time, and came in again. There were slight stains on the bedding in the morning after. Elisa appeared no longer pregnant [B]60 from being very slender. ¶ Deponent’s husband told Deponent to go and look at something which he had found wrapped up, and on Deponent’s looking into it, [she] found it to contain the afterbirth of a newly-delivered woman. Deponent charged Elisa Duncan with having been delivered. She denied it again, and wished to go away. Deponent saw Elisa Duncan remove the afterbirth from the spot where she had first seen it. Deponent again charged her with having been delivered. She denied her having been delivered, but admitted that the afterbirth had come from her. ¶ Deponent had now very strong suspicions that Eliza Duncan had been delivered, and went to search for the body. [She] saw appearances at a spot as if a delivery had taken place, and at a little distance from this spot found the body of a newborn infant covered up. “I returned again and uncovered it, and saw the body of a female infant. [I] observed no marks of violence on it. [I] cannot say whether the navel string had been tied.” [She] can say the body is now in the same state as when (Deponent) first found it, except in the colour. The body was not entirely frozen – only a little. Further Deponent saith not. Hugh Matheson, who being duly sworn and interrogated, deponed: That when the girl Elisa Duncan came into his service his wife had suspicions that the said girl was pregnant. On the 25th of October she came in to Deponent’s service. Deponent had been some time from home, and returned at last Saturday evening. About one hour after his return, his wife informed him that the girl Elisa Duncan was unwell. [He] saw her standing inside the door, apparently in pain.

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¶ In the [B]61 course of the evening, Deponent was told that Elisa was missing from the house. Deponent’s wife went over to Mr. Pritchard’s house to fetch the sister of Elisa to assist in searching for her. Deponent accompanied her to an Indian tent, where the sister went in, and after a short time she came out accompanied by her sister Elisa. Deponent charged her with being in the family way. She replied that she had denied it before, and she need not deny it again. She came into the house and sat alongside of the stove, and appeared to be in pain. ¶ Deponent’s own general impression was that she was not pregnant, “but the following morning my suspicions were aroused” by the communications from his wife that all was not right. He went and searched, and perceived a rag under the end of a canoe, and directed the attention of his wife to the rag. On his return from church, after taking his usual dinner, [he] accompanied his wife at her request to a certain spot where, in the presence of his wife and Angus Henderson, “I saw the body of a human infant, a little froze. I immediately afterwards gave information to the Coroner. On my return, [I] removed the body from the barn, where it had been, to my cellar.” ¶ “I acquainted Elisa with all the steps I had taken, and at about 3 or 4 o’clock, p.m., Elisa, after making up some bundles, left the house,” and [he] has not seen her since. Further Deponent saith not. William Cowan, M.D., who being duly sworn and interrogated, deponed: That he had seen the body of the infant, a female. [He] sees no external injury. The cord has been torn off, not cut, about 5 inches from the body. [He] believes it has not been tied. Cannot state whether the child was born alive or not, but might by an anatomical observation come to a conclusion whether the child had lived, but not whether born alive. ¶ The Jury here pressed for [B]62 a postmortem examination, which was granted by the Coroner. ¶ [After postmortem] Examination continued: [Dr. Cowan] has examined the body [and] finds the lungs collapsed, of a spleen colour, no crepitation,298 and is of an opinion, amounting almost to a certainty, that the child has never breathed. Further Deponent saith not. Mrs. Catherine Henderson, who being duly sworn and interrogated, deponed: That she heard from Wm. Henderson that something had been found, “and from what I had heard I concluded that it was an afterbirth. [I] went and examined it, and found it to be an afterbirth, wrapped in a flannel petticoat. I saw it lying on the ground between my house and Hugh

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Matheson’s, and on my return from the house of Hh. Matheson to my own, met Elisa Duncan with the aforesaid bundle under her arm.” [She] knew it to be the same by the petticoat. Further Deponent saith not. Angus Henderson, Constable, who being duly sworn and interrogated, deponed: That on his return from church on Sunday, from reports he had heard, he considered it his duty to visit the house of Hugh Matheson, and on his way thither met Hugh Matheson and his wife, and accompanied them to a spot below the byre, where there was some straw. “I saw the body of a human infant with its head partially uncovered. I took up the body, wrapped it in a cloth, and put it in the barn.” Further Deponent saith not. Anne Duncan (sister to Elisa Duncan), who being duly sworn and interrogated, deponed: That she had never been told by her sister that she was with child. [B]63 [She] was told by Mrs. H. Matheson that her sister was missing, and accompanied H. Matheson in search of her. [She] went to an Indian tent, and found her sitting there. Her sister acknowledged she was ill, but did not say what was the matter. Elisa denied to Deponent that she was with child. Further Deponent saith not. After the Coroner had summed up the evidence, the Jury returned the following Verdict: “Found dead, from culpable negligence on the part of its mother, Elisa Duncan.”

General Court, held on the 16 th day of February, 1854 at which were present: Major Caldwell, President Dr. Bunn, J.P. Wm. Ross Esqr., J.P. Thos. Thomas Esqr., J.P. Thomas Sinclair Esqr., J.P. Robt. McBeath Esqr., J.P. François Bruneau Esqr., J.P. Cuthbt. Grant Esqr., J.P. [Public Interest vs. Elisa Duncan Case 116b ]299 [Neglect of Newborn]

Elisa Duncan , the person charged on the Coroner’s Inquest abovestated of Willful Neglect to a Newborn Infant,300 pleaded Not Guilty.

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And the following Jury were empanelled: Jno. Matheson Rodk. McBeath Hugh Polson Josh. Bird Alexr. Sutherland Js. Inkster Robt. Sandison Wm. Tate Js. Bruce Wm. Drever J. Fraser Jno. Moar [B]64 The same witnesses as at the Coroner’s Inquest, and the testimony was exactly the same as given on the Inquest.301 Dr. Bunn, after summing up the evidence, left it to the Jury to decide whether the Prisoner was guilty or not guilty. Verdict: Guilty of concealing the birth of her child.302 Sentence: 6 months [imprisonment] from this date.

Margarete Bouvette vs. Père Aubert [Case 117] Defamation of Character – Damages [Sought] £5.00.00

Louis Berrard Jn. Robillard S. Amlin

Domk. Ducharm P. Gladieux J. M. Bouché

Jury: Bte. Charboneau L. Cyre J. Savoyard

André Goudrier L. Bousquet [blank] Harkness

Plaintf. stated that the Defendant had publicly accused her of having drank spirituous liquor, she having joined the Temperance Society. Defendt. acknowledged that in his capacity of priest and President of the said Society, he had done that which is always done under similar cases, viz: publishing the name of the offending party at the church door. The Court interrupted the case by calling upon the Plaintiff to prove the defamation she complained of, clear from the rules laid down by the Temperance Society, and [said that if she did so] they would entertain it; but would not entertain any case connected with the religious rules of any sect or society. Case Nonsuited.303 [B]65

Public Interest versus Joseph Gasden [Case 118] For Selling Beer to Indians

1. Wm. Hallett

Jury: 2. James Isbister

3. Chas. Fidler

General Quarterly Court of Assiniboia Records, 1848–54

4. Saml. Folds 7. Jas. McKay 10. Dd. Spence

5. Jas. Spence 8. J. Harper 11. Neil Livingstone

231

6. Selk. McKay 9. Magnus Brown 12. Robt. Munroe

Eskeepucegoos, an Indian sworn according to the custom of Indians and interrogated, deponed: That he went to Defendt’s house sometime after New Year’s Day, and bought beer from him to the value of 3/.304 And before this he had bought from the Deft. a whole keg for 8/, & took the keg home to [sic: from?] the Deft., and has at different times bought beer from Deft. to the value of 25/2.305 Kaksepas,306 sworn, &c., &c.: “I drank with the former witness beer for 8d,307 at another time for 8/1, before New Year’s Day. [I] cannot tell how long he was drinking it. It was at different times. [I] never bought anything with the money but beer.” Assiniboine, sworn &c., &c: “Two weeks before New Year’s Day I bought 18/ worth of beer.” When he was getting drunk Deft. would lend him a kettle to go off with his beer. “I sold him a pair of mittens for 3 qts. of beer. On New Year’s Day I spent 2/ again, and on the day the other Indians went to inform I bought beer from Deft. for 3d.” Sentence: Guilty in three cases: Restitution: £ 1.12.08 Fine: 10.00.00 10 days [to pay] [B]66

Public Interest versus William Spratt [Case 119] For Selling Beer to Indians

1. Jno. Matheson 4. Jno. Folds 7. Robt. Sandison 10. Js. Bruce

Jury: 2. Richd. Salter 5. Js. Hallette [8.] Jsh. Bird 11. Hugh Polson

3. Nl. McDonald 6. Gavin Garrioch 9. Jno. Fraser 12. Wm. Tait

Assiniboine (an Indian), sworn according to form of Indians: “When I arrived in the last fall from the hunt I bought from the Deft. beer to the amount of 16/, and was about three days drinking the same. I gave information after the other Indians had done so. Sometimes the Defendt. gave me the beer, and sometimes his daughter [gave it to me]. We were three persons – myself, another Indian, and a woman – drinking the beer. And I sold some fat to Deft. and he gave me beer for it.”

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Casseepas (an Indian),308 sworn according to form of Indians: “Saw Assiniboine come out of Deft’s house with a kettle of beer, and drank it in [my] company, when we came back from the hunt last fall. The river was froze.” Verdict: Guilty of having sold beer to Indians: Fine £5.00.00 Restitution 16 5.16.00 – in 10 days. [B]67

The General Quarterly Court, held on Thursday the 18 th May, 1854 at which were present, viz: Col.309 Caldwell, Governor of Assiniboia, President Doctor Bunn, JP Doctor Cowan, JP Wm. Ross Esqr., JP Thos. Thomas Esqr., JP Robt. McBeath Esqr., JP C. Grant Esqr., JP F. Bruneau Esqr., JP

[Public Interest versus James Green] 310 [Case 120] [Forfeit of Bail Bond] In the case of Public Interest versus James Green, John Green (father) became bail for James Green’s appearance this day. The son having absconded, the bail, £10, became forfeited. Ordered that the money be paid into court before it rises.311

Joseph Ducharme versus Pierre Poitras [Case 121] [Ownership of Horse] Plaintiff claimed a horse in the possession of the Defendant as his property. Defendant denied the charge. The following Jury were then sworn to try the case: Amable d’Neau Olivier Ducharme Narcisse Marion Pierre Boyer Pierre Boneau Pierre Bonneau Martin Lavallée Alexé Goulette Bapte. Bouvier

General Quarterly Court of Assiniboia Records, 1848–54

Dond. McGillis

Baptiste Gervais

233

Bapte. Larmond

Duncan McDougal sworn in as Interpreter. [B]68 Vital Tourcotte who, being duly sworn,312 deponed: That he [was] coming from the plains when the foal was about four months old. That the said foal got sick. And that he and Plaintiff operated upon it by cutting him in two places, at the first time. And sometime after he cut him again in one place. About the time we were ready to go [on] the second trip to the plains, the colt was better. The last summer, I examined the horse, and found that: “He bore the marks I had made, quite plain to be seen.” [He] has seen the horse every year since – has seen him three or four times since last Court day. The horse is of a dark chestnut colour, left hind foot white, and a white spot on the forehead. [He] is quite positive that the horse is now in the possession of Defendt., and that horse is Plaintiff’s property. The mark is on the thick of the thigh. It [is] marked, not torn. All which is truth, as Deponent shall answer to God. Compeared also Baptiste Capulette who, being duly sworn, deponed and corroborated the former witness in every particular. Compeared also John Bourk who, being duly sworn, deponed: That ...313 after the high waters [in] 1852 the colt was left at his place till either January or February 1853. He was seeking after his own horses during winter 1853, and when he found his own horses [he] did not see the horse in question. [He] saw the horse last spring, and knew him, and believed it to be the same he had been in the habit of seeing. It is a chestnut colour. “The horse was a year old, more or less, when first he came to our place. All which is true, as I shall answer to God.” [B]69 Compeared also Charles Stadgal who, being duly sworn, deponed: That he purchased the mare (or dam) of this horse in question about the month of March or April 1852. Saw the foal with her then, it being just taken out of a water hole. Did not see it again that spring. Saw it again when first put across [a river or creek] by his brother-in-law J. Bourk in the fall 1852. Did not see it again till last Court day in February, and again this day. Swears the marks are the same as the colt had – has a mark on the forehead, left foot white. All which is truth, as &c. Compeared also George Flett who, being duly sworn, deponed: That the horse in question was foaled at his place, and that it passed the winter with his horses. And his impression was that the mare did not go to the plains in the summer 1852. Saw it again in 1853 at the lower end of the

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White Horse Plains: “[I] told my companion riding with me that these were Plaintiff’s horses.” Plaintiff came the next day to work for him, and he told him his horse was seen by him, the Deponent. Saw the horse delivered into the possession of Plaintiff. The horse is ill-shaped: a stout ill-made animal. All which is truth, as Deponent shall answer, &c. Compeared also Thomas Atkinson who, being duly sworn, deponed: That he saw the mare the day after she foaled the horse in question, the year before the high water. Thinks the mare did go to the plains in 1852, when the foal was brought to J. Bourk’s place. Saw it again with J. Todd’s horses [at the] beginning of the winter. Saw it again last Court day, and the last week saw it passing. It has a white spot on forehead, white strip on nose, left foot white. All which is truth, &c., &c. [B]70 Compeared also Robert Flett who, being duly sworn, deponed: That [he] saw the colt the morning after the mare had foaled, and observed to the Plaintiff that he would not likely lose his foal, as it was well marked with a white spot on the forehead, a white strip on the nose, and one side of the nostril, and the left leg. It was about April [when] the mare foaled. [It] often came to my place afterwards with my horses. Does not know if Plaintf. took the mare to the plains the summer after foaling. Saw the foal [at the] beginning of winter, and the spring of the high waters. Plaintf. left it in charge of J. Bourk, and it kept with our horses. Did not see it again till about a year ago in J. Bourk’s park,314 and then pointed it out to T. Atkinson as the horse the dispute was about. Could swear that it was the same. “Saw it again about six months afterwards, and again today; and it is the same as I first saw.” All of which is truth, as &c., &c. Compeared also François Morrissette who, being duly sworn, deponed: That while the foal was sucking it was sick. Saw the colt about hay hauling time – on the snow. Saw the foal with a swelled shoulder, and I opened the swelling and it was running – and where that wound was running white hair is now. And swears that colt was Plaintf’s, and was following its dam – Plaintif’s mare. Saw it at the plains the first trip, and the foal was sucking. “I saw it during the winter.” Saw it again [in] 1852, and has not seen it till last winter – and again today – and is sure it is Plaintiff’s horse. All which is truth, as the Deponent shall answer to God. [B]71 Defence: Pascal Berland [was] sworn, and deponed: That he knew that Defendant had a red mare with a foal in the year 1851 – of a chestnut colour. And about the middle of June that year, as they were going to the plains,

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the said foal was with the mare. “About the middle of September 1852, returning from Fort Garry at the place called the Grand Traverse, [I] saw a foal. And, the same winter, Defendt. brought home the same foal I had seen at the Grand Traverse,” and let him loose at Deponent’s place amongst other horses. At the Grand Traverse, Deponent came upon a man, François Bonneau, and saw the said foal going to W. H. P. [White Horse Plains]. Defendt. immediately claimed the foal and drove it to his own place, and let him loose among his horses. He was then one year old, going on two. When Deponent returned from the plains [he] went to look for his strayed horses, and when he found them [he] did not see this foal. He afterwards heard that the Defendt’s horse was with Bourk’s horses. Defendt. went and brought it away. This was in Jany. 1853. Deponent saw him again the last September. Knows of no marks before the dispute, but since has seen the marks of an operation on the horse, but no other. Does not know if the foal was lame. All which is truth, as Deponent shall answer to God. Compeared also Alexé Malaterre who, being duly sworn, deponed: That the last spring Plaintiff came to Defendt’s to ask for the horse, but Defendt. would not give it up. Defendt. was willing, but his wife would not. All which is truth, as Deponent shall answer to God. [B]72 Compeared also François Morin [who,] being duly sworn, deponed: That in passing [he] saw a colt, lame, Defendt’s horses being with it. It was swelled about the foot, and was about a year old. [This was] the year of the high water – 52. [It was] the right hind leg, [and the horse had a] white spot on the forehead, crooked back legs, bad set. The mother of the foal was drowned. Has not seen it since Plaintf. took it away. All which is truth, as Deponent shall answer, &c. Compeared also Jean Bellehumeure who, being duly sworn, deponed: That he has known the colt since it was foal’d. Coming from the plains, it was sick under the throat, with two holes in that place. The colt was very dull in consequence. Saw it all that summer, and never saw it again till last year in the byer. Did not see it today. Left leg white, and the nose a little. Knows of no white spot on the shoulder. Compeared also Patrice Berland [who,] being duly sworn, deponed that in the year 1851 he saw the colt with the Defendt’s mare sucking. Saw it when going to the plains, [and] saw it again during the same winter in the stable of Deft. When Deponent came home from plains [in] 1852, the first trip, [he] saw it again – saw it with Defendt’s horses. It remained with our horses till the fall trip, when it left our horses. Saw it again in the spring. Knows that the horse was sick in the throat [but] knows nothing

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of cutting him for said disease. And has not seen him since. All which is truth, as &c. [B]73 Compeared also John Ward [who,] being duly sworn, deponed: That the colt was foaled in the spring [of] 1851, and was about six months old in Septr. Saw it [in the] spring 1853, [and] before the New Year saw it again – & has not seen him since. All this time he considered it the property of Defendant. All which is truth, as Deponent shall answer, &c., &c. Compeared also Baptiste Broconnier [who,] being duly sworn, deponed: That the colt in question came to his place in the fall 1852 with Pascal Berland’s horse. Sometime after, [he] saw him with the same P. Berland’s horse. In the beginning of March, [he] saw Pascal’s horse, but the colt was not with him. Saw him afterwards during this spring [and] saw him today. Does not know whether the horse belonged to one or the other. All which is truth, as the Deponent shall answer to God. Verdict for Plaintiff Costs of suit: £2.19.06. [B]74

The General Quarterly Court, held on the 17 th day of August, 1854 at which were present: Francis G. Johnson Esqr., Recorder315 Col. Caldwell, Governor of Assiniboia, President Doctor Bunn, JP Doctor Cowan, JP François Bruneau Esqr., JP Thomas Thomas Esqr., JP Robert McBeath Esqr., JP W. Ross Esqr., JP, Sheriff

Nicholas Courtelle versus Madame La Superieuse [Case 122] [Alleged Breach of Contract for Lifetime Board and Lodging] Plaintiff stated that he had given himself up to Defendant, with all his property, to be boarded and lodged &c., &c, during his life; & that the Defendant had turned him out of doors after using his property and making away with it. In giving himself up, there was a mare which he had reserved to himself, & which mare the Defendt. had the use of; but he, the Plaintf.,

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considered that the said mare was badly used. [He] therefore spoke about it, in consequence of which he was turned off. And he rose the present action to recover part of the property he had delivered to Deft. The Revd. Mr. L. Laflèche spoke in behalf of Defendant, and denied the statement of Plaintiff. [B]75 The following Jury were then sworn: J. Bapte. Lapine Josh. Laroch André Carrier Jean Neros Bte. Durcard Pierre Parenteau Louis Morin J. M. Boucher L. Larand J. Bruce Pierre Lanies [?] M. Dumont François Beaseau, being sworn, deponed: That Plaintf. had given himself and all his property up to Defendt., without any reservation of either animal or any other article.316 The Revd. L. Laflèche here handed to the Bench a written contract entered into by both parties, and it stated to the satisfaction of the Recorder that by the said document317 there could not be any reservation of any kind, as it was not therein expressed – but on the contrary. Therefore he, the Recorder, summed up the evidence, and the Jury returned a verdict for Defendant. Commentary One would like to know more about the facts of this sad little case. In particular, was Nicholas Courtelle really “turned off” from the hospice run by the Sisters of Charity for complaining about the use being made of his former mare? It seems unlikely that he was. If the contract was, as the recorder found, absolute respecting the conveyance of Courtelle’s property, it was probably also absolute respecting the nuns’ obligation to care for him. Father Laflèche’s denial of the plaintiff’s allegations likely extended to the claim that he had been “turned off.” One suspects that Mr Courtelle was confused on this, and on other, points. Courtelle did not remain with the Sisters of Charity. The agreement was probably terminated by mutual agreement. The next time he appeared in the court records was in June 1859 (case 162, [B]130), when it appeared that he had been living independently for some time, in possession of cattle and other belongings, but had fallen ill and had entered into an agreement to give all his property to one Louis Thebeault in return for permanent room and board. A falling-out with Thebeault over the terms of that agreement led to arbitration on that occasion, and to subsequent legal actions in August 1862 (case 230, [B]233), Feburary 1866 (case

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304, [C]76), and August 1871 (case 524, [D]21). Only in the next-to-final case did the old man achieve significant success. What is most interesting about this case and its encores is the illustration it provides of the manner in which some of the incapacitated elderly were dealt with at the time.318 [B]76

The General Quarterly Court, held on Thursday November 16 th 1854 at which were present: Col. Caldwell, Govr. of Assiniboia, President Francis G. Johnson Esqr., Recorder Doctor Bunn, JP Doctor Cowan, JP François Bruneau Esqr., JP Thomas Thomas “ JP Thomas Sinclair “ JP Robert McBeath “ JP William Ross “ JP, Sheriff

Public Interest versus Joseph Lewes [Case 123] Attempt to commit a Rape The Prisoner pleaded Not Guilty

Willm. Flett Dond. McDonald Jno. Slater Samuel Cook

The following Jury were sworn: Jas. Setter Peter Henderson Cuthbert Cummings Richard Stevens

Geo. Ross John Hodgson Robert Millar Kenneth McDonald

Mary Corrigal [was] sworn, and deponed: That she, on the 23rd of last September was going to church, and met the Prisoner in the woods at the back of Dond. McDonald’s. And as soon as Prisoner saw her he said: “Ah, ah Mary,” and laid hold on her. She put his hands off, and caught up a stick. He then caught hold of her again, and tried to get up her clothes. She called out and [B]77 some boys came, but he sent them off. After struggling some time [she] got away from him. Compeared also Thomas Maclin who, being duly sworn, deponed: That on the 23rd of September, as he was near McDonald’s woods, [he] heard the

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cries of a woman. He went towards the place from whence he had heard the cries, and saw Mary Corrigal, and the Prisoner holding her down and endeavouring to lift her clothes. When he got up to where the parties were, the Prisoner was buttoning his trousers. Defence Peter Henderson Junr. [was] sworn, [and] deponed: That he had known the Prisoner since he was a child, and considered him deficient in intellect, and a silly, idiotic, boy. [He] could only get him to work by coaxing. The Jury, after a short time, brought in a verdict of Guilty, but recommended the Prisoner to mercy. Sentence: Three calendar months’ imprisonment.

3 General Quarterly Court of Assiniboia Records, 1855–60

The best known event affecting the Hudson’s Bay Company and the Red River Settlement in this half-decade was the 1857 enquiry of a Select Committee of the British House of Commons into the company’s stewardship of its North American territories. Despite receiving much criticism, the HBC and the Assiniboia government emerged relatively unscathed from the ordeal, leaving the company in a strong position to begin negotiations for the eventual transfer of its lands and governmental responsibilities to Canada. But the shape of the colony’s future remained indistinct. Meanwhile, those who had previously bungled Red River’s governance and legal affairs left, and the egregious Chelsea Pensioners were replaced by a garrison of regular troops. When Red River’s first newspaper began publication in 1860, its pages reflected new prosperity, new stability, and new leadership. In Recorder Adam Thom’s place, until 1858, was a competent, thoroughly bilingual barrister from Montreal and, thereafter, a man who lacked formal legal training but whose performance eclipsed those of the lawyers preceding him.1 [B]78

The Quarterly Court. held Thursday, 15 th February, 1855 at which were present, viz.: Col. Caldwell, Govr. of Assiniboia Francis G. Johnson Esqr., Recorder2 Doctor Bunn, JP Doctor Cowan, JP Thos. Thomas Esqr., JP Robt. McBeath, “ JP Frans. Bruneau, “ JP Thos. Sinclair, “ JP Willm. Ross, “ JP, Sheriff3

General Quarterly Court of Assiniboia Records, 1855–60

241

Benjamine Lajomonier versus Louis Thebeault [Case 124] Civil Suit [Liability for Injuries Caused by Horse] – Damages laid at £60 The Plaintiff stated that Defendant’s gelding had done him considerable damage by biting and running his horses to death. He could get no redress as the horse was a gelding,4 but as he had lost five horses by said gelding he had raised this suit for damages to the amount of £60. Defendant pled that he has had the said gelding during nine years, and continually during each summer, in the band with Plaintiff’s horses, and that Plaintiff had never complained of the horse to him as being unruly, or doing him any damage, until last summer. The following Jury were then sworn: [B]79 Louis Berrard C. L. Ranie Bapte. Lapine Bapte. Bruce M. Dumas Pierre Parenteau J. Bruce Olivier Ducharme L. Dunord M. Lavallée J. M. Boucher A. Berreault Dominique Ducharme, duly sworn, deponed: That he knew Defendant’s horse. Remembers that he saw Deft’s horse running after a young horse belonging to Plaintf., and ill used it. This was the latter end of May. “The young horse that was running from Defendt’s horse was about one year old, and I consider that it was worth eight pounds.” Compeared also James Taylor who, being duly sworn, deponed: That he knew the Defendt’s horse, and saw it sometime about harvest running a gray foal, and biting it. The foal was about three or four months old. The Defendt’s horse is a black one, and [he] thinks he is a very wild horse. Compeared also Thomas Harrison who, being duly sworn, deponed: That he knows the Defendt’s horse, and that he saw said horse about the latter end of July in Plaintf’s enclosure with Plaintf’s horses – saw him running a foal. Sometime after, “I heard that the foal I saw Defendt’s horse running and biting was dead. I saw Deft’s horse biting this foal. The foal died about six weeks or so afterwards. I do not know if the said horse would kill another horse, but at the smoke in summer he is very bad.” Compeared also Auguste Harrison [who], being duly sworn, [B]80 deponed: That he knows the Defendt’s horse, and knows that Pltf. lost two horses by being bitten. One was two year old – a black one – and the other one, a year old, was a brown one. They had many bites on them. [He] saw

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Deft’s horse bite them. He, Deponent, only saw these two die [but] heard of others belonging to Plaintf. had died. The Pltf’s black horse was worth £15, and the brown one £10. There was only two of the band that was not bitten. Defendt’s horse is a very wild one. “I am not sure that another horse did not bite them.” Compeared also Isaac Lajomonier [who], being duly sworn, deponed: That he knows Deft’s horse, and knows that the said horse bit Pltf’s horses. Saw him driving Pltf’s horses into a swamp [but] did not see him kill the horses he was running about. Compeared also Joseph Lajomonier [who], being duly sworn, deponed: That he knew the Defendt’s horse, and also that the said horse had ran his, Deponent’s, own horses in the spring, so that he, Deponent, took in his horses for fear that the said horse would kill them. Compeared also Baptiste Perreault [who, being duly] sworn, deponed: That he heard Plaintf. warn Defendt. of the doings of his horse, and requested him to keep him up. Defence: Romain Lajomonier, who being duly sworn, deponed that he knows Defendt’s horse. “[I] cannot say that he is a quiet horse, but not a very bad one. I saw the horses when dead5 – [B]81 did not see Deft’s horse do enough to kill another horse. The horse I examined when dead died from a hurt. I saw one of Pltf’s horses biting other horses in the enclosure.” Compeared also Antoine Laliberté, [who was duly] sworn and deponed: That he knew the Deft’s horse – had had him to the plains hunting, and where it is most likely to know the temper of a horse, but never knew him to be bad. Compeared also Pierre Dumas [who], being duly sworn, deponed: That the Pltf. had a mare as bad as Deft’s horse. Jury returned a verdict for Plaintiff. Damages £8.00.0 Costs [£]1.14.0

Public Interest versus Kanecat, Waywaypus, [&] Shokin [Case 125] [Criminal] Assault and Battery

General Quarterly Court of Assiniboia Records, 1855–60

243

The following Jury were sworn, viz.: Wm. Thomas Jno. Vincent Jno. Polson Alexr. Bannerman Geo. Sutherland Morsn. McBeath Hugh Matheson Jno. Inkster Robt. Sandison Jno. Matheson Wm. Brown Wm. Bird Thomas McDonald, being duly sworn, deponed: That he knew the Prisoners at the bar to be those who, on the night of the 2nd of February, went to his house and, in a rebellious manner, pushed the door in. His, Deponent’s, wife told him that [B]82 they were coming with sticks. They took hold of the beer keg and shook it. Kanecat struck him, and Shokin and held him. Waywaypus struck him with a stick in his own house. One of Deponent’s children got burnt. He was alone, and was lying on the ground, [while] they danced around him. He, Deponent, went out to see if there was a light in any of the houses, and then he heard his wife crying out. Deponent saw two of them trying to pull his wife down. Compeared also Mrs. McDonald [who, being] sworn, deponed: That she knew the Prisoners to be the same who came to her house on the night of the 2nd of February. She further deponed that she and her husband were in bed, and after their first sleep she got up and saw two of these men with sticks in their hands coming towards her door. They, the Prisoners, broke the latch and catch of the door and came in. As soon as they came in, they caught hold of the beer keg, and shook it. Deponent’s husband ordered them out. They stole 2 yds. of print, some bread, and a comforter. They struck Deponent’s husband with a stick, and he lay on the ground a considerable time, and at last got up. And Deponent went out to see if there was any person up, and then the two put their hands up Deponent’s clothes. Defence: Shokin (speaking through a sworn Interpreter) stated that when he and his party came to the door of the Prosecutor’s house there was a candle burning, and when they knocked they were told to come in. When they were in, the soldier6 [B]83 (Prosecutor McDonald) tried to turn them all out. “I endeavored to keep him at peace,” but he struck Deponent twice. And on receiving the second blow Deponent returned it. The wife of Prosecutor caught him by the hair, and the soldier took up an ax, but his, soldier’s, wife took it from him. [He] deponed further that he only got three quarts of beer for a shilling, and afterwards the wife gave him the shilling back again. Mrs. McDonald cross-examined.7 [She] deponed on her oath that she had neither sold or given any beer to these Indians.

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Thomas McDonald cross-examined. [He] deponed on his oath that he had not sold beer, and that he had none to sell in the house, and that the whole of these three Indians had struck him. Verdict: each Guilty Sentence: 15 days’ Imprisonment from 16 day of February8

Public Interest versus The same three Indians as in the former Case [Case 126] [Criminal] Assault & Battery The same Jury as before Thomas Oakes, sworn, deponed: That the three Prisoners at the bar came to his house after Mrs. McDonald, who [had fled there and] was crying out “Murder.” Deponent rose from his bed and saw Shokin with a knife in his hand, and while he, the Deponent, was putting on his clothes these Prisoners struck him on the face with a stick. “I got away, and went to call my neighbours to my assistance.” It was about half past 12 o’clock on the 2nd February in the night. [B]84 Compeared Mrs. McDonald [who], sworn, deponed: That she saw these Indians at the bar at Thomas Oakes’ house on the night of the 2nd of Feby. They had run after her till she came to Oakes’ house. Oakes got up, and while putting on his shoes he lifted up his face and the Indians struck him on his face. Oakes then ran to Ramsey’s, and she returned home. Compeared also Robert Ramsey [who], sworn, deponed: That on the morning of the 3rd of Feby. he was called by Oakes, who said the Indians were killing his children. His eye was sadly bruised. [Deponent] went with him, but saw none of them there. They were crossing the river. Compeared also John Gahagan, [who was] sworn & deponed: That on the 2nd of Feby., in the morning, Oakes came to his house complaining that he was half murdered. His eye seemed much hurt. Afterwards [he] saw four Indians at McDonald’s house calling the soldier to come out. Compeared also Thomas Throne, [who was] sworn and deponed: That he saw the whole of the Prisoners at McDonalds’. “There was four of them at about half past 9 o’clk., and about two or three hours after I was at Oakes’ when Mrs. McDonald came crying out ‘murder,’” and he first recollects seeing Oakes striking one of the Indians.

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Verdict: Guilty Sentence: 15 days each from the expiration of sentence in the former case of McDonalds. [B]85 Adjourned Court, held 16 th February,

9

1855 Public Interest versus Thomas Pixley [Case 127] Selling Beer to Indians

Js. Fraser Selk. McKay Angs. Matheson G. Groat

The following Jury sworn, viz.: Dond. Polson Wm. Tait Js. McKay H. Matheson Robt. Munroe Robt. Sutherland Rk. McBeath and Angus Henderson

Chegan, sworn, deponed: That he knows Defendant, and has known him a long time. Remembers him on the night of the row.10 He, Deponent, drank threepenny worth of his beer in his house at the above time. “His, Defendt’s, wife gave it me.” Seven days after New Year’s Day he drank beer that he bought from Defendt. at his house for one shilling. Mr. Ross sent for him, and he informed against Defendt. Deponent thought to help those who are in prison out of the scrape. It was told him if he informed he would get back his money.11 Wyassissin not understanding the nature of an oath, the Recorder refused his testimony. The Twin not understanding, &c., his testimony refused. Natawas, sworn,12 deponed: That he knew the Defendt. – his name was Pixley – and that he, Deponent, had sixpenny worth of beer at Deft’s house the last storm. Wesowescanape was present. He went to Mr. Ross and informed. Verdict: Guilty of having sold beer to Indians Fine: £5.0.013 [B]86

Public Interest versus Thomas McDonald [Case 128] Selling Beer to Indians

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Wm. Hallette Wm. Clouston H. Cook Js. Taylor

The following Jury sworn, viz.: Dd. Spence Jno. Atkinson Jno. Folds Wm. Driver Js. Isbister C. Fidler Josh. Bird Josh. Kerton

Askeepucegoose, sworn, deponed: That he knows the Defendt. – saw him on the night of the row14 (2nd Feby.), about four days after the ice was fast. [He] gave two shillings to Deft. for beer, [and, a] good while after, got four shillings worth again. “The reason why I informed is that the constables told me to do so.” Chegan’s testimony refused, being incompetent.15 Thomas [was] sworn, and deponed: That he knows the Defendt, and that Constables Logan & McDougal told him to inform. Deponent got beer from Defendt. for 6d16 in the Christmas week, and 6d worth of bread, and got the lend of a kettle to carry it away. [He] took it home, and drank it with his children. “The Deft’s wife gave me the beer.” Kakechepas [was] sworn, and deponed: That he knew the Defendt., and that he, Deponent, and his brother Askeepucegoose drank beer at Deft’s house, which he bought from him, the Deft, before the ice set in. Defendt’s wife gave the beer in his presence. The first time, he drank 3/17 worth, four nights after 4/. The ice was drifting at the time. My brother sold Defendt 3½ yds. of print for ten pots of beer. [B]87 Defence: Mrs. Gahagan, sworn, deponed: That she lived close to the Defendants, and, to the best of her knowledge, thinks the Defendts has had no beer since 2nd February. Verdict: Not Guilty

Public Interest versus William Sharp [Case 129] Selling Beer to Indians The following Jury were sworn, viz.: G. Sutherland C. Cook Selk. McKay Hugh Matheson Wm. Slater Js. Fraser Wm. Tait Wm. Gunn G. Groat

General Quarterly Court of Assiniboia Records, 1855–60

A. Matheson

Robt. Sutherland

247

Dond. Polson

Kakechepus [was] sworn, and deponed: That he knows the Defendant, that he took cups and saucers to Defendt’s and sold them for beer, about two weeks before 2nd Feby., and drank it in the Defendt’s house. [He] got the beer from the wife in presence of the Deft., and on the night before the 2nd Feby. he got beer from Deft. for 1/6.18 Alexé [was] sworn, and deponed: That he knows the Deft., and bought beer from him for cups & saucers. It was about two weeks before the 2nd February. The wife gave one quart, and the man gave another. Waywaypus 19 [was] sworn, and deponed: That he knows the Deft., and that it was the beer they had bought at his house on the 2nd Feby. that made them all foolish. [He] gave 4/ for 16 quarts. [He] was sober when they entered Deft’s house. [He] got the beer from the woman, and got the lend of a small keg and a kettle to carry it away. The wife promised him a quart of beer if he brought back the keg & kettle safe. He did so, and got a quart of beer for so doing. [B]88 Defence: Joshua Parks [was] sworn, and deponed: That he called at Defendant’s house on the 2nd of February, and asked for beer, and was told by Defendant that he had none. His wife was not at home. Verdict: Guilty Fine: £5.0.020 Defendant was recommended to mercy21 by the Jury, on which recommendation the Governor of Assiniboia reduced the above fine one half: say £2.10.0. Commentary Stimulated, perhaps, by the night of terror experienced by the McDonald and Oakes households, Sheriff William Ross and his constables, probably on instructions from the governor or the recorder, mounted a concerted prosecution against three suspected purveyors of beer to Indians, including the one who provided the intoxicants that night. The McDonalds themselves (against whom no previous or subsequent charges are found in the court records) were among those suspected – possibly because the sheriff thought the attackers were simply trying to gain access to premises where they had been sold beer previously.

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The technique employed to obtain the necessary evidence was to approach the accused assailants and their friends and explain to them that the settlement’s informer law entitled them to get back what they had paid for the beer if they informed on their suppliers. Ross may also have told at least Chegan that the three men accused of assaulting the McDonalds and Thomas Oakes would receive lenient sentences if they and their friends informed as suggested, especially if McDonald were implicated. Although the court went along with the plan, sentencing the home invaders to only a few weeks’ imprisonment, the juries were not so cooperative, acquitting McDonald, and recommending a reduced fine for Sharp. It was not the first, or the last, occasion on which Red River juries exhibited their independence.

The General Quarterly Court, held on Thursday 17 th May, 1855 22 James Bird, Esqr. versus James Taylor Junr. [Case 130] Trespass The following Jury were sworn, viz.: Dond. McDonald W. Flett Richd. Stevens G. Setter Junr. W. Sutherland C. Haywood Jno. Sutherland W. Tait W. Henderson Alexr. Sutherland W. Bunn M. Brown Joseph [Bird], Agent for his father Jas. Bird Esqr., stated that Defendant had cut down and taken two loads of wood off of Mr. Bird’s lot. Defendant desired proof that he had taken it. Joseph Bird [was] sworn,23 and deponed: That on the 17th Feby. he went, by the desire of Mr. Bird, to examine his woods, and that he found recent tracks, [B]89 and saw where wood had been freshly cut on Mr. Bird’s lot, followed the said tracks to the door of Defendt’s house, [and] informed Mr. Bird of the circumstances. “And he told me to take a witness with me to see it. I took Wm. Work.” Compeared also William Work [who], being sworn, deponed: That he had accompanied Josh. Bird to his father’s woods, and saw a good many fresh stumps, and followed the track to the Defendt’s door, where the wood was. “The wood was from the stumps I had seen, and there was about two loads & some other billets.” Compeared also Peter Trindle, [who was] sworn, and deponed: That he went with Josh. Bird to see the woods – there was 15 fresh dry oak stumps –

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remained after J. Bird had gone, and then followed the track as far as Defendt’s byre. Verdict for Plaintiff Damages: £2.5.0 Costs: 1.2.6

James Inkster versus Thomas Sinclair 24 [Case 131] Civil Suit: Loss of a Chest of Tea The same Jury Plaintiff pleaded that in the year 1853 he had agreed with Defendt. to bring up his pieces from York Factory; yet, although Mr. McTavish of York Factory had written to him that he had delivered it out from York Factory stores to be put on board of Deft’s. boats, yet he, the Pltf., had not got a tea chest. Defendant stated that he himself had not been down to YF with his boats, but his bill of lading [B]90 showed that the piece had not been part of his cargo. And, furthermore, he the Pltf. had neglected to send him the order to get his pieces from YF; and therefore, on account of this his neglect, he had not instructed Mr. McTavish to put any more property on board of his boats – only which he had sent the orders for. Plaintf. here wished to put in Mr. McTavish’s letter to him stating the shipment of the said piece, but was overruled by the Recorder as being inadmissible as evidence.25 William Sinclair deponed: That he thought he had seen a chest of tea to the address of Pltf. among the cargoes, but not in his father’s boat, but among some of the cargoes of the other boats on the route up from YF. Verdict for Defendant 26

Commentary Governor William Caldwell, when testifying before the 1857 Select Committee of the British House of Commons two years later, would boast that his aim in judicial proceedings was to act “justly between man and man.”27 One is left at the end of this case with an uncomfortable feeling that this did not occur here. And certainly the

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appearance of justice in the eyes of the community must have been clouded at least a little by the fact that the successful defendant was a member of the court. The plaintiff had made arrangements for goods of his at York Factory (either purchased from the company or warehoused by it for him) to be brought to Red River in Thomas Sinclair’s boats. If the plaintiff’s statement is to be believed, and there is no reason not to believe it since he was prepared to support it by documentary evidence, William McTavish, who was a senior HBC officer at York Factory at the time, informed him in writing that the goods delivered by him to Sinclair’s employees for shipment included the missing tea chest; but the defendant claimed that it was not listed in his bill of lading. It appears that the item had been placed in the loading area for pickup by Sinclair’s men but had disappeared before it could be taken on board one of his boats. The fault would therefore seem to lie with either the carrier or the Hudson’s Bay Company, and justice would seem to require that one or the other should have made good the plaintiff’s loss. How could this have been achieved, given that the company was not a party to the litigation? In the first place, the McTavish letter ought to have been either admitted into evidence, so it could be compared with Sinclair’s bill of lading, or sent back to York Factory for verification. And why could the plaintiff not have been advised of the wisdom of adding the company as an alternative defendant to the action and given an adjournment for that purpose?

Adjourned Court, held 18 th May, 1855 Public Interest versus Michell Dejarlais [Case 132] Burglary Mr. McMurray of the HB Coy. stated that the Prisoner had broke into and stolen from the store of the HB Coy. at Fort Ellice. Prisoner pleaded Guilty, & said they had bought a dog from him and had cheated him, and that was the reason he had stolen from the store. Sentenced: 6 months in prison from the date of his committal. [B]91

Public Interest versus Michel Dumas [Case 133] Burglary

P. Gladieux L. Bruce

The following Jury sworn, viz.: J. Sayvoyard S. Amlin J. Milia Bapte. Lapine

General Quarterly Court of Assiniboia Records, 1855–60

L. Thebeault N. Marion

Bte. Larmond J. Lajomonier

251

R. Lajomonier F. Gendron

Mr. Murray stated that he was in charge of the Hon. Hudson’s Bay Company’s Fort at Pembina. On the 21st February he perceived that the window of the store had been broken, and the cash box [taken] away, which contained about £6. His suspicions arose against Prisoner by his spending more money than he, the Prisoner, could account for. And he [Prisoner] said that he had sold two traps for twenty five shillings, and a wolf skin for four shillings and sixpence, [which] was the only way the Prisoner could account for his being so flush in cash. Compeared also Joseph Cyre, [who was] sworn, and deponed: That he was at the Company’s fort at Pembina in February last, and that he and the Prisoner were employed in throwing out snow. While so employed, Prisoner looked in at the store window, and said: “I would like to have what is in there.” And [the Deponent stated:] “That same night, it being moonlight, I saw a person going towards the store window, and I have no doubt that that person was the Prisoner. He returned after a little time, and I heard the clinking of money through the partition, as though he were counting it. I afterwards saw him working in the snow, and I went there and found a piece [B]92 of paper in the hole that he had made. He gave me two shillings for the lend of my capot.” Compeared Alexé Goullet [who], duly sworn, deponed: That he knew the Prisoner, and had sold him a cow about the time mentioned when the Company’s stores was robbed at Pembina – sold him the cow for four pounds. “He gave me two pounds in American gold.” Compeared Neswasanib [who], sworn, deponed: That he had never bought any traps from Prisoner, nor has at any time given him money. He, Deponent, had given Prisoner a shirt for the lend of his traps. Never had any other dealings with him. Mr. Murray intimated to the Court that the last witness was the man who the Prisoner said he had sold his traps to.28 Defence: James Spence, sworn, deponed29 that he could not say whether Joseph Cyre ought to be believed on his oath.30 Verdict: Guilty

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Sentence: Six Months’ imprisonment from this date Commentary Law enforcement near the unmarked and largely unpatrolled 49th parallel could be complicated by considerations of international law, but such niceties were not always observed. This was a case in point. The HBC post at which this burglary occurred was situated immediately north of the international boundary; the US town of Pembina lay only a short distance to the south. Not long after the burglary, Michel Dumas fled across the line. Murray, the officer in charge of the HBC post, followed him, and went to US deputy marshall Joseph Rolette in Pembina to enquire about how Dumas’s extradition could be arranged. The process prescribed by the Ashburton Treaty of 1842 was for the governor of Assiniboia to file a formal requisition with the governor of Minnesota, following which a judicial hearing would be required to establish whether the circumstances justified extradition. Joe Rolette, one of Pembina’s more colourful pioneers, was either ignorant of or impatient with such cumbersome formalities, however, and told Murray that all he needed was a request from Murray himself. Receiving that, Rolette went to a Pembina justice of the peace, who issued a warrant for Dumas’s arrest as if the offence had been committed on US soil. Deputy Marshall Rolette then arrested the accused and conveyed him immediately to Fort Garry, where the deputy was paid £14 for his trouble. Recorder Johnson later reported this irregular procedure to London in a tone of disapproval (he was especially critical of the £14 fee); but he was quick to point out that although Rolette had broken US law, Johnson had no competence to deal with that violation, and that it did not “in any manner affect ... the issue I had to try, which was simply whether the Prisoner had committed a crime within the jurisdiction of the Court.”31

James Mulligan 32 versus Joseph Robillard [Case 134] Civil Suit for [Debt of] £26.2.0

G. Flett C. Garrioch Js. Tait A. McBeath

The following Jury were sworn, viz.: O. Gowler W. Stevenson Js. Hallett N. McDonald H. Polson Js. Inkster H. Matheson Js. Bruce

[B]93 Plaintiff stated that he had sold a farm with its buildings to Defendant for 50 pounds, and had only received the sum of twenty-three pounds eighteen shillings. He therefore rose this action for the balance: twenty six

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pounds two shillings. Defendant pleaded that Plaintiff had removed a small store[house] from off the lot, and had destroyed the fencing; and furthermore he had never got the land yet.33 Compeared Martin Dolan, [who was] sworn, and deponed: That he was at Plaintiff’s house on the 10 October, and Defendt. was there also, and he said (speaking of the land in question) that he would take the place when it was put in the same state as when he made the bargain for it. Compeared Patrick Lillias, [who was] sworn [and] deponed: That the Pltf. took away a small store[house] from the premises now in question. Compeared J. M. Boucher, [who was] sworn [and] deponed: That he did not know that Defendant had possession of this lot. Compeared also William Sharp, [who was] sworn [and] deponed: That he heard Pltf. and Deft. talking about this lot. Defendant said: “When you have put all in order, I will take it.”34 Verdict for Defendant: Defendant to pay Plaintiff only £16.2.0.35 [B]94

The General Quarterly Court for August [1855] was not held, as there was no cases. Commentary The number of cases heard by the General Quarterly Court of Assiniboia during the years Recorder-Governor Johnson presided over it were markedly fewer than in the periods immediately before and after his presence. Since there is abundant evidence of his personal laziness, and no other apparent reason for the change of caseload, it is highly likely that he, in sharp contrast to Recorder Thom, insisted that the petty courts deal with a greater proportion of the settlement’s judicial work than at other times.

The General Quarterly Court for November [1855] was not held, as there was no cases.

The General Quarterly Court, held on Thursday 21 st February, 1856 at which were present: Francis G. Johnson Esqr., Govr. of Assiniboia, President36

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Doctor Bunn, JP Wm. Ross Esqr., JP, Sheriff François Bruneau, JP Robert McBeath, JP Thomas Thomas, JP

Alexé Henry versus Pierre Genvenne [Case 135] Defamation of Character Madame Henry stated that she was out with three men cutting hay when the Defendt. endeavoured “to put my servants away from off the place they were cutting by saying the place was his. I went to ask him why he had put my men off from that spot, when he called me a thief.” Defendant stated that the men of the Plaintiff were cutting hay on a certain spot of land which he had cleared for that purpose, and had been in the habit of cutting hay there for some years; but the Pltf’s wife with her men began cutting there the last summer. “I told her that I would not prevent her men from cutting, but that I would go to the Fort and see if I [B]95 had not the best claim to it. ‘For by your coming in this manner and cutting it down after I have cleared the ground is like robbing me.’ (‘comme vous voulu moi piller’) This [was] all that I said.” The following Jury were sworn, viz.: Pierre Parrenteau P. Boyer L. Berrard C. Larence A. L’Esperance S. Amlin P. Gladieux J. St. Germain Bapte. Bruce L. Bousquet D Carrier L. Ayotte Mr. Sheriff Ross [was] sworn, and deponed: That the parties came before him about the latter end of harvest, when Defendant made use of these words: “The person who takes my hay in this manner is the same as if the person stole it from me.” Joseph Goslin [was] sworn, and deponed: That last harvest Defendant said to the Complainant these words: “For your honor search for it where it is.” Joseph Adam [was] sworn, and deponed: That Defendt. had told him, the Deponent, that, he, Deft., “had treated (‘traiter’) the woman as a thief.” Deponent replied that it would be hard to prove her a thief. Heard Defent. say to Complainant: “Madame you take my hay the same as thieving it.” “From all I heard Deft. state I thought that she was a thief.”

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Verdict for Defendant. Costs divided: £1.11.9 each.37 [B]96

The General Quarterly Courts for May and August [1856] were not held, as there were no cases.

The General Quarterly Court, held on the 20 th day of November, 1856 Present: Francis G. Johnson Esquire, Govr. of Assiniboia, President John Bunn Esqr., JP, Sheriff François Bruneau Esqr., JP Robert McBeath Esqr., JP Thos. Thomas Esqr., JP Thos Sinclair Esqr., JP

Public Interest versus Charles Demarais [Case 136] Larceny The Prisoner pleaded Not Guilty Jury: 1. Thos. Logan 2. William Tait Junr. 3. James Bruce 4. George Groat 5. Adam Klyne 6. Henry Hallett

7. André Harkness 8. William Clouston 9. Gavin Garrioch 10. Donald Polson 11. Magnus Brown 12. James Inkster

Magnus Linklater [was] sworn and, being interrogated, deponed: That he lost property from off of a line, where they were exposed to dry after being washed, on the 8th of October – that he missed a shirt and waistcoat. Two days after, [B]97 [he] saw the said articles on the person of the Prisoner at the bar, and identified them as his property. Further Deponent saith not. Compeared also Margaret Flett [who], sworn and being interrogated, deponed: That the property now shewn to her was hung out to dry on the 8th Octr., and is the property of Magnus Linklater. Further Deponent saith not.

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Verdict: Guilty Sentence: Four months from the time of his committal

Public Interest versus François, an Indian [Case 137] Larceny The Prisoner pleaded Not Guilty The same Jury Alexander Sutherland [was] sworn, and deponed: That he missed his coat on about the first or sixth of October, and was informed by his son that he had seen the Prisoner passing with a coat of the same colour on him. Seeing him (the Prisoner) repass, [he] questioned him where he had got the coat. He replied: “From Charles Demarais.”38 Further Deponent saith not. Compeared George Sutherland who, being sworn and interrogated, deponed: That about the [B]98 time of from the 1st to the 6th of October he had missed his coat, and that about a month ago he saw the Prisoner with it on his person, and claimed it. Further Deponent saith not. Defence: Joseph Gadsden [was] sworn, and deponed: That Charles Demarais had worked for him, and that one day about the beginning of October had asked Deponent to advance him 2/6 on his coat. Deponent did so, and a short time after, in the dusk of the eveng, Demarais came to Deponent’s house, another one with him, “and give me 2/6,” and the Deponent gave up the coat. This was sometime before C. Demarais was imprisoned. Cannot say that the coat now shown to him is the one, but [it] is something like it. Compeared also an Indian who, not consenting to the form of oath, & not being baptized, was refused by the Bench.39 Compeared also Mary, an Indian girl [who], being sworn, deponed: That she had seen and knew the coat, and saw it on the person of Chas. Demarais long before he was put in jail. Further Deponent saith not. Verdict: Not Guilty

General Quarterly Court of Assiniboia Records, 1855–60

257

[B]99

The General Courts for the months of February and May [1857] were not held, there being no cases.

The General Quarterly Court Held this Twentieth day of August, One Thousand Eight Hundred and Fifty-Seven At which were present: Francis G. Johnson Esqr., Govr. of Assniboia, Recorder of Rpts. Ld. John Bunn Esqr. Sheriff “ do. Fs. Bruneau “ J.P. “ do. Robt. McBeath “ J.P. “ do. Thos. Thomas “ J.P. “ do. John Inkster “ J.P. “ do.40

H. B. Coy. versus John Swain [Case 138] Breach of Contract – Damages laid at £10 Mr. Joseph Fortescue, Acct. to the H. B. Coy.,41 proceeded ex parte42 for damages for breach of contract. The following Jury were sworn: Benjamne. Lajomonier L. Thebeault G. Neron A. Carrière M. Lavallée C. Larence F. Bouvette F. Ayotte LaGloire Plante L. Morand J. Bruce J. Inkster Constable Duncan McDougal, sworn, deponed that he had delivered a summons to Defendant to appear at this Court to be held this day. Defendant not answering to his name when called, [B]100 Joseph Fortescue [was] sworn, and deponed: That the Defendant had engaged to the H. B. Coy. for the trip to the Portage La Loche, and had received advances to the amount of five pounds, five shillings, after which he had absented himself. He, Deponent, therefore, on behalf of the H. B. Coy., sought damages to the amount of ten pounds for the loss of his services. The Defendt. was regularly engaged – had signed his contract in presence of the subscribed witness Thomas Swanson, [and the Deponent] knew the signature to be T. Swanson’s writing.

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Verdict: Damages £2.15.0 43 Advances 5.05.0 Costs [amount unspecified] 10 days’ grace [to pay]

H. B. Coy. versus Joseph Favel [Case 139] Breach of Contract, Damages laid at £10.0.0 Constable John Vincent [was] sworn, and deponed that he had delivered to Defendant a summons to appear at this Court this day.44 Joseph Fortescue, Acct. to the H. B. Coy., [was] sworn, and deponed: That the Defendant had been engaged to the H. B. Coy., and had received advances, but had absented himself till after the embarkation; and had then presented himself and repaid the advances he had received from the Compy. He, Deponent, therefore sought damages to the amount of ten pounds for the loss of his, Defendt’s services. [B]101 Verdict: Damages £2.0.0 Costs [amount unspecified] 10 days’ grace [to pay]

Narcise Marion versus Louis Caplette [Case 140] Debt of £32.15.745 Plaintiff stated that he had advanced the Defdt. to [sic] the amount of £32.15.7, but the original sum was more than this. He had advanced him the sum of £40 at St. Peters,46 and for which he had charged him 10 p/ct.; but he, Pltf., had recd. as a set-off some furs from Deft. And he, Pltf., had engaged to bring Deft’s cart & ox, loaded, from St. Peters – he, Defendt., furnishing ox and cart. But the cart, turning out to be incapable of proceeding on the route, had been left, although Pltf’s people had done their best to get it along. On this account, Defendt. refused to settle with him. Defendant stated that by the Plaintiff leaving his property on route he had sustained heavy losses. And, furthermore, if Plaintf. had persevered ever so little, the cart might have been mended and brought on.

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Joseph Genteau [was] sworn, and deponed: That he was in company with the Pltf’s people coming from St. Peters, and on his oath did not think the cart could have proceeded much farther without breaking down. And that he, Deponent, advised the people not to proceed beyond the place where they could leave the property in security. And so far [B]102 as he knew and saw, Pltf’s people did their best to bring it on; but it was impossible to bring it much farther, or it would have broke down. And all the other carts were sufficiently loaded, and could not have relieved it by taking any extra pieces. And had they not been left where they were they might have been lost. Verdict for Plaintiff: £28.15.7 Costs: 1.00.0 29.15.7

Dond. Murray versus Willm. Bird Senr. [Case 141a] For Trespass Defendant complained that he had only received his summons late on Monday evening, and that one of his witnesses was for the present out of the Settlement. The Bench agreed to postpone the case to the next General Court, to be held in November,47 with the understanding that the losing party should pay the costs of this day’s proceedings – 12/6. viz.: To W. Inkster: “ Dd. Mitchell: “ Chs. Haywood: 5 Summons:

2.6 2.6 2.6 5.0 12.6 48

[B]103

The General Quarterly Court Held this Nineteenth day of November One Thousand Eight Hundred & Fifty-Seven At which were present the following: Francis G. Johnson Esqr., Govr. of Assiniboa., Recordr. of Rupts. Land John Bunn Esqr., Sheriff of Assiniboia François Bruneau, JP

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Thomas Thomas, JP Robert McBeath, JP

Donald Murray versus William Bird [Case 141b] 49 [For Trespass] Plaintiff stated that he had been in the possession of a lot of land since the year [blank], and he had during that time rented a small portion of the same to the Defendant at £1 per anm. But in the year 1855 he, the Defendant, took possession of 56 links,50 or better than eleven yards, of Plaintf’s land – the very land he had formerly rented of Plaintf. He therefore rose this suit to demand of Defendant to shew cause why he claimed and held his property from him. Defendant stated that he had received from his father a lot of land consisting of 8 chains51 in breadth continguous and below the Plaintf’s lot, and that he had put up his fence in the old place in which it was in the time of Chas. McKay, the original proprietor. And by admeasurement he had not more land than his father had given him. And that there was sufficient marks there to bear him out in what he stated, viz.: a tree at the river and a stone at the base line – and he followed these marks. [B]104 The following Jury were sworn: Thos. Logan Wm. Tait Junr. John Bourk Js. Inkster John Matheson Junr. Js. Inkster (farmer) Wm.. Clouston John Sutherland

Magns. Brown Wm. Polson Wm. Fraser Hugh Polson

William Inkster [was] sworn, and deponed: That he had surveyed the lot and measured the same, and the plan he now submitted to the Bench was a correct plan of the site of land in dispute, shewing that the line running parallel to the other lots from the starting post52 left the Plaintiff 28 links deficient of his former holding from where the Defendt’s fence was now standing. James Knight [was] sworn, and deponed: That the original line where the fence stood between Dond. Murray’s & Defendt’s property was formerly held by Chas. McKay, and not where it is now. The old line is still distinctly to be seen. The present line assumed by Defendt. evidently encroaches on Plaintf’s land. David Mitchel [was] sworn, and deponed: That he had been eighteen years at the place, and knew the place or boundary of Plaintf’s lot,

General Quarterly Court of Assiniboia Records, 1855–60

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which was a standing tree growing at the river bank. Defendt. showed him (Deponent) a stone at the base line, which he said was the mark there, as the line from the tree to that place. Deponent thinks the line so run would be pretty straight and right. Charles Haywood [was] sworn, and deponed: That there was a fence on the land between Defendant and Chas. McKay when Js. Knight bought his land, and [B]105 that that line was plain to be seen yet. The boundary of Plaintf’s lot was a tree on the bank of the river, but the line now on which Defendt. has put up his fence runs far above the original line, and takes off considerably from the Plaintiff’s land. Peter Fidler 53 [was] sworn, and deponed: That he was employed by Defendt. to put up the present fencing. The two marks he had to go by were a tree at the river and a stone at the base line, which line he ran between these two marks.54 The whole of the lots at that spot are wedge lots (broad at the river, and running to a point outwards). [He] thinks the line correct. Never saw a fence between Plaintf’s lot & Defendant’s. Joseph Bird, sworn, deponed that the lot of Plaintf. was narrower at the base line than at the river. William Bird [was] sworn, and deponed that he thought the present line took away from Plaintiff’s lot. Verdict for Plaintiff. Judgement deferred till next Court.55 In the meantime, the line [is] to be run by the surveyor,56 and both parties to appear to receive judgement. Costs on the 20th August Court “ “ present Court “ for summonses

0.12.06 1.02.00 0.04.00 £ 1.18.06 Paid.

[B]106

The General Quarterly Court Held this Eighteenth day of February, One Thousand Eighteen Hundred and Fifty-Eight At which were present, viz.: Francis Johnson Esqre., Govr. of Assiniboia, President John Bunn do., Sheriff, Counsellor of Assiniboia Robert McBeath do., do. do.

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Thomas Sinclair do., Thomas Thomas do.,

do. do.

do. do.

James Muligan versus Augustin Goudré [Case 142] For a Debt of £30.0.0 Defendt. denied the debt [but], after some explanation of the case between the parties at the instigation of the President, the Defendant confessed judgement for the sum of £20, with the delay of one month’s grace.57 Costs of Suit 2/6

Public Interest versus François Berécau [Case 143] Larceny for Stealing a Cow After the following Jury were sworn, viz.: Alexé L’Espérance Gonzaque Ayott Martin Lavallée Bapte. Berrard Louison Morand Bte. Lépine Samuel Foulds Gavin Garrioch Robert Ramsey Pierce Barron John Butts James Moysey The Prisoner pleaded Guilty. Sentence: to be imprisoned six months from the day of his committal (say from the 31st day of December 1857 until the 30th day of June 1858.) [B]107

John Rowand versus Augustin Goudré [Case 144] Debt of £16 Defendt. denied the debt, and put in the following offset against the above debt, viz.: “Acct. of Mr. John Rowand To Wages from St. Paul to Red River “ Provisions bought “ Work of 1 Ox 1½ day “ Provisions bought at Pembina

£5.00.00 11.01 1.05.00 11.00

General Quarterly Court of Assiniboia Records, 1855–60

“ 1 bag of Pimican [sic] Balce. due

263

2.00.00 £9.07.01 6.12.11 16.00.00”

The following Jury were sworn, viz.: Gavin Garrioch Pierce Barron John Butts Selkirk McKay James Flett Geo. Sutherland Joseph Danion Pierre Boyer Louis Berrard Bapte. Bruce Pierre Parrenteau Josh. Robillard Alexander Porter, sworn, knows both parties, and accompanied them to St Pauls. Does not know anything of Defendant’s engagements with Mr. Rowand. Heard that Defendt. bought provisions, but will not swear to it. Knows that a bag of pimican was found on the road by the parties, and was put in Mr. Rowand’s cart. Baptiste Racine, sworn, deponed: That he was in company with Defendt. on his return from St Pauls. Knows that Deft. bought provisions at Lac Rouge for the benefit of Mr. Rowand’s party. Did not see him purchase them, but saw him bring them into camp. Saw Deft’s ox used in drawing Mr. Rowand’s [B]108 carts on. Thinks 25/ too much for the use of said ox. Saw sugar keg opened – sugar was wet. Took out by the Deft. about one pint to buy provisions. Mr. John Rowand, sworn,58 [deponed: That he] employed Deft. to go to St Paul’s for the lend of a horse, “which he was to have from me both to go and come back. Subsequently I sold the horse to him at St Paul’s for £16.0.0, but I still considered that he had to return according to our bargain, and did [not?] imagine I had anything to pay.” Verdict for Plaintiff: £12.0.059 Costs: 13/

André Harkness versus Joseph Genton [Case 145] An action of Damages for having Burnt Pltf’s Hay As the Plaintiff had not taken the precaution of burning, ploughing, &c., &c., according to the law made and provided for the same,60 his action of damages failed. Case Dismissed.

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Robert Tait versus John Omand [Case 146] For a Colt (£10) and a galln. of Whiskey (16/): £10.16.0 The following Jury sworn, viz.: Gavin Garrioch John Pritchard Pierce Barron Morison McBeath John Butts Hugh Matheson Jun. Selkirk McKay Angus Matheson James Flett Junr. Magnus Brown George Sutherland Thomas Logan [B]109 Robert McBeath,61 sworn, heard the parties making a bargain about a foal for £10, which Deft. agreed to pay for the foal. “But my impression was at the time that the Defendt. was intending to see the foal before paying or concluding the bargain, although nothing was said by either party to that effect.” William Tait Junr., sworn, recollects the bargain between his brother (Pltf.) and the Deft. Deft. said he would like to purchase the foal. Pltf. asked £12 for it. Deft. said he would give £10, at which sum Pltf. finally agreed to, and said he would deliver it to him at a stated time. James McKenzie, sworn, deponed: That he was present at the time Pltf. delivered the foal to Deft. The Defendt. did not think much of the foal, and said he would give 15/ to break the bargain. William Inkster, sworn, deponed that he did not recognise the foal, and Deft. appeared dissatisfied with his bargain, and offered Plaintf. 15/ to break the bargain. William Tait Senr., sworn, deponed: That [he] had wintered the foal, and to the best of his belief the foal was in good health, but it was always what might be called a thin foal. James Inkster [was] sworn, & deponed that he heard the Deft. ask the Pltf. what he should do with the foal, on which the Pltf. replied: “Put it with my father’s horses.” William Tait Junr., recalled, stated that he heard both parties disputing about this affair, and Defendt. said: “When you pay me for the bells & snaps I will pay you for the whiskey.”

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Verdict for Plaintiff: Costs of Suit:

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£10.00.0 1.07.0 £11.07.0

W. R. Smith, C.C.62 [B]110

The General Quarterly Court, held this Twenty-First day of May One Thousand Eight Hundred and Fifty-Eighth year of Our Lord At which were present the following magistrates: Francis G. Johnson Esqr., Govr. of Assiniboia & President John Bunn Esqr., JP and Sheriff Robert McBeath Esqr., JP Thomas Thomas Esqr., JP

[Donald Murray v. William Bird] [Case 141c] [For Trespass]63 In the case of Dond. Murray versus Wm. Bird, verdict was rendered for Plaintiff, but the Court did not at the time give judgement. Both parties appeared this day in Court to receive judgement. Mr. Wm. Inkster, the Surveyor appointed for the duty, handed in the following written paper: “‘Copy’ May 5th 1858 Called upon to draw the boundary line between Dond. Murray, and Willm. Bird, in order to determine the exact bearing of the lines in this vicinity, I set the compass at the foot of one formerly drawn by Mr. Taylor, the original surveyor, and found it to bear [B]111 exactly S71 Et. I then proceeded to the tree agreed upon in court as the former boundary between Dond. Murray and Wm. Bird and, setting my compass there, drew a line bearing in the same direction as the other, viz.: S71 Et. (Signed) Wm. Inkster

‘A true Copy W. R. Smith Clerk’”

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The above having been read in court, the President ordered the following judgement to be recorded: “Friday, 21st day of May 1858 Present: Donald Murray & Wm. Bird The Court, considering the verdict of the Jury in this case rendered on the nineteenth day of November 1857, having heard the parties and seen and considered the report made by William Inkster, Surveyor, do now order and adjudge that the boundary line between the properties of the Plaintiff and Defendant be fixed and established according to the Report of the said William Inkster. ‘A true copy W. R. Smith Clerk’” Charges for drawing the above line to be paid by the Defendant: Charges 10/.

Andrew McDermot versus Pierre L’Deux [Case 147] Debt: £2.11.6 Pierre Thébert, Constable, swore that he had delivered the Summons. Judgement by Default: Debt: £2.10.6 Costs: 01.0 £2.11.6 [B]112

James Mulligan versus William Davis [Case 148] Disputed Land Title This case was entered upon, but, Defendant not being present, the case was discontinued.64

James Armstrong versus Robert Tait [Case 149] [Short Measure of Whiskey] The Plaintiff stated that he had bought a barrel of whiskey from the Defendant purporting to contain 42½ galls., for which he had paid him at

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the rate of £1.2.6 p/gall.; but found out that the barrel only contained 35 galls., and had therefore raised the present suit to recover the value of the 7½ galls. overcharged, or £8.8.9. The Defendant stated that he had no transaction or business with the Plaintiff at any time, and although he had sold whiskey it was not to the Plaintiff. The following Jury was then sworn: 1. Edward Kenney 2. George Wild 3. James Rickards 4. Pierce Barron 5. Robert Ramsey 6. George Antil 7. William Sutherland 8. Thomas Bunn 9. Jno. Vincent Junr. 10. Willm. Flett 11. George Dahl 12. Alexr. Dahl Peter Connol [was] sworn, and deponed that he knew both the Plaintff. & Defendt. “I was sent down by Plaintff. with his son Joe Armstrong to purchase 30 galls. of whiskey. Defendt. said he had a barrel of whiskey which contained 42½ galls., and that he would not broach it, but that he would sell it as it was: 42½ galls. Not [B]113 having more money with us than would pay for the 30 galls., my companion Joe Armstrong returned to his father’s for further instructions, and Defendt. lent him a horse to ride. After a while he returned with a sufficient [sum of] money to purchase the whole barrel at 22/6 p/gal. After the barrel was emptied, I went with the Plaintiff to the river and measured it to try if it could contain 42½ galls. I measured the water, and Plaintff marked down with a pencil & paper as I filled up the barrel; and the barrel only contained 35 galls.” All which is truth, as the Deponent would answer to God.65 Joseph Armstrong [was] sworn, and deponed, and corroborated the evidence of the above witness, Peter Connol – only that the present Witness states that he was one shilling & sixpence short of the full amount to pay for the 42½ gall. when he came the second time to Defendt’s house; and also that the had never seen a brand of 42½ galls marked on the barrel. All which is truth, as Deponent should answer to God. John Moises [was] sworn, and deponed: That he recollects Joe, the last witness, bringing a bill [of exchange?] for the amount of the whiskey. It was only the sum of the amt. There was no writing of any kind on the bill. All which is truth, &c., &c. Corporal Murphy, sworn, [deponed:] “I was present when Joe Armstrong brought a bill for the remainder of the money.” All which is truth, as Deponent should answer, &c.

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Defence: David Tait, sworn, deponed: That “One Saturday the keg of whiskey was at my father’s house, and Connol wanted to take it and pay hereafter for it, but my brother the Plaintiff [sic: Defendant?] said he must pay the full amount before he would part with it. My brother gave the keg for 42½ gall. as he had bought it at 22/6 p/gall.” All which is truth, &c., &c. [B]114 William Tait Senr. deponed: That Connol and Armstrong came to his house “to purchase whiskey from my son, the Defendant. My son told them: ‘There is the barrel and mark of 42½ galls. I sell it as I bought it.’” All which is truth as Deponent should answer to God. Verdict for Plaintiff: Costs:

£8.08.09 15.06 £9.04.03

W. R. Smith, Clerk [B]115

The General Quarterly Court, held on Thursday, the Nineteenth day of August, One Thousand, Eight Hundred and Fifty-Eight At which were present: Francis G. Johnson Esqr., Govr. of Assiniboia, President John Bunn Esquire, Magistrate and Sheriff Robert McBeath Esqr., JP Thomas Thomas Esqr., JP François Bruneau Esqr., JP

Mrs. Bird versus Humphry Favel [Case 150] Horse Taking, tried under the Local Code (Resoln. 9th)66 Sentence: to pay the fine of twenty shillings and to be confined until the said fine is paid.67 The fine was immediately paid in court.

Andrew McDermot versus Antoine Dumais [Case 151] Breach of Contract: Damages of £70 The following Jury were sworn:

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Louis Thebault Bapte. Boyer James Hallette Neil Henderson

Guilleaume Neron John Bruce John Smith Alexr. McBeath

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Louis Reille68 Louis Gallerneau William Clouston G. Setter

The Plaintiff stated that he had engaged the Defendt. to make the trip to YF [York Factory], and [Defendant] embarked and proceeded as far as Norway House, and then left the boat under the plea of ill health – in consequence of which he the Plaintiff had suffered considerable loss and damage, being obliged to leave a boat at Norway House. He therefore, the Plaintiff, rose this suit to recover damages to the amount of seventy pounds sterlg. [B]116 On Defendant being called to plead, and not appearing, Constable Duncan McDougal was sworn, [and deponed] that he had duly delivered the summons citing him, the Defendt., to appear at this Court on this day. The President then advised the Plaintiff to reduce the amount of damages to the means of Defendant, on which the damages were reduced to ten pounds.69 The Jury returned a verdict for the Plaintiff. Damages £10. The case went by default.70

Neil McKay versus Alan McKeiver [Case 152] For a Horse Plaintiff stated that he had got a horse while 1 year old in a present from Defendant, and on account of having received that present he had given to the Defendt’s wife, as it was agreed upon between him, the Plaintiff, and Defendt., goods to the amount of the value of the horse, and that he [Defendant] now refused to give the horse to him. Defendant pleaded that he had never sold or given Plaintiff the horse. The folg. Jury were then sworn: Josh. Rodway George Antil James Armstrong Patrick Lillas John Irvine James Mulligan James Hallett Jno. Smith Wm. Clouston, Neil Henderson Alexr. McBeath George Setter Junr.

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Robert Massey, being duly sworn, deponed: That at Fort Pelly71 he saw Defendt. there, and he wished to purchase a horse from Defendt. – but Defendt. [B]117 said he could not sell any of his horses, and pointed out to him one which he had given to Plaintiff. Deponent asked him if he had given it to him, or sold it. He replied: “No! I gave it to him in a present, as he was very kind to me and my family, he being a countryman of mine.” Further Deponent saith not. Mrs. Massey, being duly sworn, deponed: That she heard Defendant state that he had given the foal to the Plaintiff at Fort Pelly72 at the same time that73 her husband held the above conversation with him. And subsequent to that time Plaintiff [sic – Defendant?] shewed her the horse, and again said that it was Neil McKay’s, and that he had made a present of it to him. Further Deponent saith not. The Plaintiff here presented to the Court a list of the articles supplied to Defendt. on account of the present of the horse: “To: – 6 yds. McKenzie’s tartan – 13/6 – tea 1 lbs. Canyon 2/6 – 0.16.00 – 1 lts. thread 5/ – 1 blanket 4 points 18/ – 1.03.00 – 4 “ tea 10/ – 1 lts. chocolate 2/8 – 1 cot. handkf. 1/ – 13.08 – Horse hire to Fort Garry 5/ – 05.00 – Paid La Vie for taking to Fort Pelly 3/ – 08.00 – 5 lts. tea 12/6 – 2 gals. rum 24/ – 1 keg 2 gal. 2/6 – 1.19.00 – 1 cloth cap[ot?] – 06.00 £ 5.05.08” Defendt. denied having received the rum and the 4 point blanket. Donald McDonald [was] sworn, and deponed that he saw the rum put into Defendant’s carts at the house of the Plaintiff. Joseph Tait [was] sworn, & deponed that he was present when [B]118 the Pltf. & Defendt. came before Mr. Sinclair about this case,74 and heard the Pltf. acknolge. that the rum was for the purpose of trade. The President summed up the evidence, and stated that the Plaintiff had failed to prove his title to the horse, inasmuch as the horse had never been delivered to Plaintiff – nor had he ever fed or stabled him. But for the articles he had furnished to the Defendant he left to the Jury to decide. Verdict for the Plaintiff: Costs:

£ 5.05.8 1.12.1 £ 6.17.8

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Commentary What was this strange transaction all about? It seems to have been a straightforward barter sale from McKay to McKeiver of a variety of trade goods, almost half of which, by value, was rum – plus the rental and delivery to Fort Pelly of a horse – payment to consist of a certain foal. Why, then, was it given the artificial form of a “gift” of the horse and corresponding “gift” of the goods and horse rental to McKeiver’s wife? Two possible explanations come to mind. One arises from the fact that trading liquor to Indian fur trappers, which McKeiver apparently intended to do, was illegal,75 coupled with the company’s assiduousness in bringing such offences to the attention of settlement authorities. Perhaps McKay did not want to be prosecuted as an accessory to illegal liquor trafficking, and thought he could insulate himself from McKeiver’s subsequent activities by merely “giving” the trade goods to McKeiver’s wife. McKeiver’s denial that he had ever received the rum was also consistent with a concern about prosecution. But if McKay was nervous about coming to the notice of the authorities, why would he call evidence about the purpose to which the liquor was to be put? A more plausible explanation for the odd exchange arrangement might be that McKay had imported some or all of the trade goods into the settlement duty-free as “personal baggage ... for the owner’s own use,”76 and did not want to have to pay customs duties retrospectively. Recorder Johnson’s ruling about the horse – that since there had been neither the delivery necessary to give legal effect to the alleged “gift,” nor any upkeep expenditure upon which a claim for maintaining someone else’s horse could be based if McKay had no claim to the animal itself – shattered the fiction of mutual gifting, and left the jury to treat the case as a simple claim for debt. It is not known what steps, if any, were later taken by settlement authorities against either party.

Dond. Bannerman versus George Turner [Case 153] Debt & Damages £15.0.0 Plaintiff Nonsuited.77

Public Interest versus Josh. LaRence [Case 154] For Stealing a Scythe The same Jury Prisoner pleaded Not Guilty. James Ross [was] sworn, and deponed: That he knew the Prisoner, that he was the man that had wrought at hay cutting [sic] for his mother, and had stolen the scythe. Did not know the scythe now before him.

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[B]119 François Roque was sworn, and deponed: That he knew the scythe now before the Court to be the property of Mrs. Ross, and that he had used it in her service, and that he identified it in the cart at Monsr. Thebeault’s house. A. Vandal, Constable, [was] sworn, and deponed: That when he took the Prisoner in charge he found the scythe at his, the Prisoner’s, place; and the Prisoner stated to him that he only kept it because Mrs. Ross was due to him78 and would not pay him. Verdict: Guilty with a recommendation to mercy. Sentence: to be confined three days in prison. William R. Smith, Clerk. [B]120

The General Quarterly Court, held 16 th Decr. 1858 79 At which were present, viz.: Willm. McTavish Esquire, President80 Dr. John Bunn Robert McBeath Esqre. François Bruneau Esqre. Thomas Sinclair Esqre. 1 case before the Jury81

Edward Mowat versus Alexander Sabiston [Case 155] [Desertion from Employment] Plaintiff stated that this case was for desertion from his boats, and had caused a loss to him, he being obliged to engage another man in the place of Defendant for £6 to Norway House, and had to engage another at York Factory for £4, making altogether an extra expence of £10, which sum he now sought to recover. Defendant pled that he had not intentionally deserted, but had only gone in search of his blanket, & while away the boats had left, and although he strove to overtake them he could not. Verdict for the Plaintiff: Costs:

£5.00.00 14.00 £5.14.00

82

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Joseph St. Aneau versus Jerome Beauchamps [Case 156] A case for Damages of £30 [For Loss of Plaintiff’s Ox and Equipment] Before the same Jury83 This was a case for having lent an ox & cart [B]121 and harness, and a rope [for use on the buffalo hunt], and bargained to give him, Def., £2.10.00; & that the Deft. was obliged to bring him, the Pltf,. 2 [slaughtered buffalo] cows with the skins not to be taken off. Xavier Brontier [was] duly sworn, and deponed: “I was present at the bargain. The Plaintiff sent his cart for meat with Defendant. And he, Defendt., was to receive £2 for 2 cows and some other articles not [sic] in the bargain.” Knows that Pltf. sent a rope worth 15/, and thinks ox, cart, harness & rope together worth £13. “I was present & assisted to harness the ox before leaving. The ox went off quiet.” Compeared also Baptiste Bercier who, being duly sworn, deponed as follows: “I was present when Plaintiff paid Defendt. £2 in cash and 2 qts. of liquor. I know that Defendt. got from Pltf. an ox, cart, rope and harness. I helped to harness the ox before starting.” Thinks the whole to be worth 15 or 16£. The Defendt. was obliged to bring 2 cows & 2 hides, and more if possible. Has not seen the ox since. “All which is truth as I shall answer &c., &c.” Compeared also Baptiste Jeanvienne who, being duly sworn, deponed as follows: “I was at the Pltf’s when Defendt. took away the ox, and it went off well in the cart. I have not seen the ox since.” All which is &c., &c. Compeared also Alexé D’Lorme who, being duly sworn, deponed as follows: “I was not at the house when the Defendt. started, but he overtook us at the Rivière Gratière, & I assisted to unharness the ox, & Defendt. told me that Pltf. had said that I was engaged to assist him. The ox was not very difficult [B]122 to work with or handle.” Has never seen the ox since. All which is truth &c., &c. Defence: Jem White, being duly sworn, deponed as follows: “When we started from Rivière Gratière it required three of us to harness the ox. The next day we tied the ox to a cart. Deft. said that the Pltf. had told him that I was obliged to assist him, but I was not obliged to do so. I think the value of ox, cart,

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harness, and rope about £13.” Does not know of any ox being lost. “Defendant told me that he had left the ox at Felix Letraille. All which is truth &c., &c.” Compeared also Gonzaque Esaste who, being duly sworn, deponed as follows: “I was present at the bargain. Pltf. asked Deft. to take his ox to the plains. Deft. said that he was afraid to take that ox, as he was wild. Pltf. promised to give him £2 and 2 qts. of liquor, and Deft. was to bring for Pltf. 2 cows, or 2 bulls if cows could not be got. All which is truth &c., &c.” Compeared also Moyes Goulet who, being duly sworn, deponed as follows: “I know nothing of the bargain between the parties, but I know that at the starting the ox was tied (when he was brought to the house) to the store, and the cart pushed up to the harness on the ox. I advised Deft. to leave the ox, and he went to Pltf. and told him he was afraid to take him off as he was so wild; but he, Pltf., said that in 3 or 4 days he would be quite tame. At the Saline84 the ox was very wild. The ox was always tied behind. [B]123 He was a very wild ox. Defendt. told him that he must leave the ox, as he could not manage him. I said if the owner would pay me I would take him on, [to] which the Defendt. said: ‘If the owner does not pay you, I will.’ But the ox was so very wild that I gave him up again to Deft., and he then gave him over to Felix Letraille to look after him. All which is truth as I shall answer, &c., &c.” Compeared also Abram Boulanger who, being duly sworn, deponed as follows: “I know that the ox was not a serviceable animal. The first time I saw the ox he was as wild as a buffalo. I did not see it till I saw it at Pembina Mountain. Deft. had no-one to help him. All which is truth &c., &c.” Compeared also C. Goulet who, being duly sworn, deponed as follows: “I was present when the ox was delivered to Felix with the cord, and I believe that Felix had to bring him down to Red River. All which is truth &c., &c.” Verdict for Plaintiff Damages: £20.0.085 Costs of Suit: 1.3.6 Paid £21.3.6 Ten days grace to pay William R. Smith Clerk of Court.

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Commentary What seems to have happened here was that defendant Beauchamps, who was planning to travel south, either to take part in the buffalo hunt or to purchase meat from those who had, was requested by plaintiff St Aneau to take the latter’s ox and cart with him, and employ them to bring back for St Aneau the meat of two buffalos – cows if possible. Although Beauchamps was nervous about the temperament of the ox, St Aneau assured him that the animal would calm down once it had been on the trail for a few days, and Beauchamps accepted the assignment. He was paid £2, plus 10 shillings worth of liquor, in advance, and was to be paid as well for the meat he brought back for St Aneau. When, along the route, the ox proved too difficult to handle, either by Beauchamps or by his colleague Goulet, it was decided not to take it farther, and Beauchamps’s witnesses said that it, along with the cart, harness, and rope, was left in the care of one Felix Letraille. After that, the ox and equipment appear to have disappeared. Whether Letraille disappeared with them is not known, but that seems probable in light of his not being summoned to testify. [B]124

The General Quarterly Court, held on the 17 th day of March, 1859 At which were present, viz.: William Mactavish, President Doctor Bunn, JP François Bruneau Esqre., JP Robert McBeath Esqre., JP Thomas Sinclair Esqre., JP

[Mrs. LaMalice versus James Mulligan] [Case 157] [Trespass and Alleged Mortgage Foreclosure] This was an action raised by the Plaintiff, formerly [missing name], but now by Mrs. LaMalice, Plaintiff, against James Mulligan to shew cause why he shall not deliver up her house. The Defendant produced a paper stating that he had advanced the sum of £4 to Madame Marcellais & Madme. LaMalice in the month of June 1857, and [that] she would give up her house in security for the same. The Jury being duly sworn,

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Compeared André Harkness who, being duly sworn, deponed as follows: “I know the paper now handed me to be the same I drew up in the year 1857. The signatures are the same. I do not know whether Madame LaMalice knew of this bargain – did not see her there at the time. All which is truth as I shall answer to God.” Compeared also James Mulligan Junior who, being duly sworn, [deponed] as follows: “I was at Mrs. [B]125 LaMalice’s place when Mrs. LaMalice told her daughter Mrs. Marcellais to tell me to ask my father to lend her £4 on her house. I spoke to my father, and he said that he did not like to have anything to do with it at first; and sent me to enquire if the owner [Mrs. LaMalice] would consent. When I asked the old woman if she consented, she replied she did. Then my father made the bargain. All which is truth, as I shall answer, &c., &.” Compeared also Mrs. McDougal who, being duly sworn, deponed as follows. “I know nothing of Mrs. LaMalice’s and Mulligan’s bargain, but Mrs. Marcellais told me that her mother had given her consent to mortgage her house, but did not to her recollection ever speak to Mrs. LaMalice about the house. All which is truth, as I shall answer, &c., &c.” Compeared also Madame LaRonde who, being duly sworn, deponed as follows: “I know that my sister, Madame Marcellais, asked my mother to let her have her house for four months. I know nothing of the bargain. My sister asked the house only for 4 months. I did not pay attention to anything said or done when in Harkness’s house. All which is truth, as I shall answer, &c., &c.” Compeared also John Cyre who, being duly sworn, deponed as follows: “I was sent in the autumn of 1857 by Madme. LaMalice to advertise [sic] the Defendant to give up the house, as she had only given her consent to her daughter to mortgage her house. All which is truth, &c., &c., &c.” [B]126 Verdict for Plaintiff: Defendant to deliver up the house. Plaintiff to return the money. Costs divided. Commentary It appears that Mrs LaMalice owned a house, which her daughter Mrs Marcellais asked to borrow for four months for the purpose of raising a loan of £4 from James Mulligan. The mother seems to have agreed – the evidence of Mulligan’s son and of John Cyre concur about that – and André Harkness, acting as a scrivener, accordingly drew up a mortgage, which the daughter, but not the mother who owned the house, signed in June 1857.

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The loan not having been repaid in the time specified – presumably four months – Mulligan foreclosed and took possession of the house in the autumn of 1857. The mother now sues for repossession, and succeeds – quite correctly, since the English Statute of Frauds of 1677 required mortgages to be signed by the owner of the property in question. Whether the jury or the court reached this conclusion in reliance on the Statute of Frauds or simply on the basis of fairness is not known. The accompanying ruling that the loan be repaid to Mulligan probably lacked legal justification, especially since the borrower, Mrs Marcellais, was not a party to the litigation, but it too seems just in the circumstances.

André Neault versus Joseph Langevin [Case 158] For the sum of £.5.0.0 [Price of Disputed Quantity of Whiskey] Plaintiff stated that Defendant came to his house to purchase some whiskey. He found it good for the price [and] took 2 galls. – but said he did not wish to have American measure. Jury Sworn Compeared Pierre St. Germain who, being duly sworn, deponed: “The Defendt. asked me to accompany him to the house of the Plaintf., and when there he asked for some whiskey. He had a small keg. There was a tea kettle which would contain a gallon, and they put nine kettles full into a keg, and he perceived the keg would hold more. Defendt., in measuring with the pot, the kettle would run over. I brought the whiskey, and every time Defendt. measured it himself, and only stipulated that the measure should be the measure of the country and not American. All which is truth, &c., &c.” Compeared also Amable Neault who, being duly sworn, deponed as follows: “Mr. Langevin desired me to tell my son to send him the remainder of the cask of whiskey. All which is truth, &c., &c.” Defendant admits being due to Pltf. £2.10.0. [B]127 Compeared, for the Defence: [blank] St. Germain who, being duly sworn, deponed as follows: “I remember the keg was a nine gallon one.” Does not know how much the measure was deficient. “All which is truth, as I shall answer, &c., &c.” Verdict for Plaintiff: Defendant to pay £2.10.0.

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W. R. Smith

Clerk of Court [B]128

The General Quarterly Court, held 16 th June, 1859 At which were present, viz.: William Mactavish, President John Bunn Esqre., JP François Bruneau Esqre., JP Robert McBeath Esqre., JP Thomas Sinclair Esqre., JP

Albert Sargant versus Bapte. Savoyard [Case 159] Debt of £10.4.6 Pltf. sworn to correctness of his a/c [account]. Constable McDougal sworn to delivery of summons. Case went by default.

John McBride versus John Inkster [Case 160] For £9.0.0 [Wages for Work at Steam Mill] William Tait, being duly sworn, deponed as follows: “I know nothing of the first arrangement of the parties. I heard that Pltf. was to get something – £3 or 4 – but cannot say for certain. I heard Deft. say to Pltf. to go to work [for him], and if the mill run on he would get something above his board. If the mill86 got out of debt he would give him £3 or 4 above his board and lodging. I understood that there was no promise made, as this certain something was depending on the mill giving satisfaction. I did not consider that there was anything definite – [B]129 never heard anything promised by Deft. I was in charge of the flour department, and I was the first that paid the Pltf. £3, and John Fraser gave him £2 in Jany. All which is truth, as I shall answer to God.” Compeared also John Fraser [who], being duly sworn, deponed as follows: “I know nothing of any agreement. Pltf. did not send in any acct. Mr. Inkster said he had promised him nothing but his board; but said he would after the mill run make up the sum engineers got, I believe. I cannot say that the Plaintiff neglected the machinery – it was much improved. The mill

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was not out of debt when Pltf. left. He left without a minute’s warning. All which is truth, as I shall answer, &c., &c.” Compeared also John Geddes who, being duly sworn, deponed: That he heard the last witness say to Pltf.: “Will 4 or 5£ satisfy you?” All which is truth, &c., &c. Defence: Robert Tait, who being duly sworn, deponed as follows: “A few days after the arrival of Pltf., he was at Deft’s house. Mr. Inkster told him he might go and work at the mill and get his board & the first chance of employment. The Pltf. made no objections. [I] heard Mr. Inkster say that unless the Pltf. was employed he would be miserable. There was nothing he had to expect but his board. He got £2 from Mr. Inkster. I believe that Pltf. was working on the first arrangement. All which is truth, &c., &c.” Compeared also George Turner who, being duly sworn, deponed as follows: “We have no agreement at the mill. I have no wages, but am to have wages when the mill runs. All which is truth, as I shall answer to God.” [B]130 Compeared also Alexander Sutherland who, being duly sworn, deponed as follows: “The terms of the arrangement were as has been stated, and we could not promise him, the Pltf., anything more than his board – and when the mill was fit to run that he should have the first chance of being the engineer. I never heard of any promise, but my impression was that something would be given him. All which is truth, as I shall answer to God.” Plaintiff Nonsuited.

Narcise Marion versus Joseph Favel [Case 161] Case of Debt: £22.0.0 This case went by Default:

Plaintiff sworn to correctness of his a/c: Costs of suit:

£22.0.0 0.1.0 £22.1.0

Nichol Courtell versus Louis Thebeault [Case 162] £400.0.0 [Alleged Breach of Contract for Lifetime Board and Lodging]

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After entering into the case it did not appear to the Bench that there was a sufficient cause to go before a jury, and [it] recommended both parties to settle it by arbitration.87 Case dismissed.

Governor & Council 88 versus Joseph Gasden 89 [Case 163] Selling Beer to Indians Jackson Smith who, being duly sworn, deponed as follows: “I saw Mr. Gasden [B]131 selling beer to four Indians. I was in the house, and out of the house, and saw the Indians pay the money. All which is truth, as I shall &c., &c.” Compeared also, for the Defence: Abraham Sims who, being duly sworn, deponed as follows: “I was at Gasden’s house on the 10th of June at 6 o’clock a.m. at 2½ p.m., [and] at 4 until 9, and saw no Indians. I have been frequently at the house, and never saw any Indians. [I] cannot swear that Gasden did not sell beer to Indians. All which is truth, &c., &c.” Compeared also James McGuire who, being duly sworn, deponed as follows: “I have often heard both Mr. and Mrs. Gasden tell the soldiers never to give any beer to Indians. I did not see any Indians there on the day mentioned. All which is truth, &c., &c.” Verdict: Guilty on the 4 Indians. Fined £10.0.0.

Walter Bourk versus An Indian 90 [Case 164] For Killing a Cow The Indian pled Guilty [and was] sentenced four months’ imprisonment from this date.

William Flett versus Joseph Parisienne [Case 165] [Debt] Case went by Default:

Constable [swore] to delivy. of summons.

General Quarterly Court of Assiniboia Records, 1855–60

Pltf. swore to his a/c being correct: Costs:

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£6.19.3 ½ .17.6 £7.16.9 ½

10 days to pay W. R. Smith Clerk of Court [B]132

Special Court, 91 held this 12 th day of August, 1859 At which were present, viz.: William Mactavish Esqre., President Doctor Bunn, JP François Bruneau Esqr., JP Robert McBeath Esqr., JP Thomas Sinclair Esqr., JP

The Queen versus Pierre La Deux 92 [Case 166] [Theft of Tea from Cargo] Pleaded Not Guilty. A Jury [was] empanelled and sworn. François Demaris, who being duly sworn, deponed as follows: “On my trip up from York Factory I saw the Prisoner take out his knife and rip up the cover of a tea chest, and with a spoon draw out tea at the Holey Lake, and again at the Eechemahmees River, and again at Lake Winnipic – with a frying pan under the chest to catch the tea as he extracted it. On all these occasions it was always in the daytime, except in the last instance, which was in the night. All which is truth, as I shall answer to God.” Compeared also Magnus Linklater who, being duly sworn, deponed as follows: “On examining the cargo of the boat in which Prisoner was in [I] perceived that one chest of tea was broken. And it appeared that by the hole in the casing, and also a hole in the wood, [B]13393 tea had been extracted. [The chest contained] 13 lbs. less than the other that was in the boat. All which was truth, as I shall answer to God.” Compeared also Robert Hourie who, being duly sworn, deponed as follows: “I never knew when the Prisoner took the tea. I got a little tea from

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him. There was one chest much broken. [I] saw the chests weighed [and] saw that one was 13 lbs. less. All which was truth, &c., &c.” Compeared also John McKay who, being duly sworn, deponed as follows: “I know nothing of the tea being taken, but I saw tea on the portages scattered about. All which is truth, &c., &c.” Compeared also Pierre La Doux [Jr.] 94 [who], being duly sworn, deponed as follows: “We received this chest at York Factory in a broken state, and at the Old Fort my father mended it (the covering). No one could have taken any tea out. And I not have [sic: have not?] seen him in these instances alluded to. I was steersman.95 All which was truth, as I shall answer to God.” Compeared also Louison La Doux 96 who, being duly sworn, deponed, [and] corroborated the last witness that the chest was broke, & tea was scattered about the portages, & that his father gathered up a little. All which was truth, &c., &c. Verdict: Guilty Judgement: 2 months’ imprisonment from this date.97 [B]134

The Queen versus C[harles] Patneaud and Pierre LaDoux 98 [Case 167] For Stealing Rum on the trip up from York Factory Pleaded Not Guilty The same Jury François Demarais, who being duly sworn, deponed as follows: “When we arrived at the Knife Landing Place, Patneaud took a gimlet and pierced a rum cask, and took out about a quart of rum, and La Doux encouraged him in this act. All which is truth, as I &c., &c.” Compeared also Thomas Sandison who, being duly sworn, deponed as follows: “I saw Patneaud bore the cask of rum and take out some into a quart pot, and put it to Robt. Hourie, who would not have it. And he set it down, and the rum was drank amongst the two boats’ crews. All which is truth, &c., &c.” Compeared also Charles Demarais who, being duly sworn, deponed as follows: “I saw Patneaud bringing a pot of rum ashore, but did not see him take it out of the cask. All which is truth, &c., &c.”

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Compeared also Humphry Favel who, being duly sworn, deponed as follows: “I saw Charles Patneaud bore a cask, and saw some rum with him. All which is truth &c., &c.” Compeared also Robert Hourie who, being duly [B]135 sworn, deponed as follows: “I saw Patneaud with a pot of rum. I told him I would have nothing to do with it. All which is truth, &c., &c.” Compeared also John McKay who, being duly sworn, deponed as follows: “I did not see the rum taken, but I saw Patneaud & Demarais with a pannikin99 with rum in it, and they offered it to R. Hourie and myself to drink. All which is truth, &c., &c.” Compeared also Pierre La Doux [Jr.]: “I was in Rt. Hourie’s boat, and when I came back the rum was in the hands of Patneaud & Demarais. And as to who took it out, or who drank it, I cannot swear. All which is truth, as I shall answer to God.” Verdict: Guilty – Old La Doux more guilty than Patneaud Old La Doux: 2 mths. imprisonment from this date100 Patneaud: 1 “ “ “ “ “ 101 W. R. Smith

Clerk of Court [B]136

The General Quarterly Court, held this 15 th day of September, 1859 At which were present, viz.: William Mactavish Esquire, President Doctor Bunn do., JP François Bruneau do., JP Robert MacBeath do., JP Thomas Sinclair do., JP

Revd. G. O. Corbett versus Hugh Cammeron [Case 168] Trespass – Damages laid at £20 After a Jury had been empanelled and the case entered into, it failed for want of the necessary proof of damage,102 and the Plaintiff took a Nonsuit, and paid 30/ Costs.

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The Queen versus John Bourk [Case 169] [Criminal] Assault and Battery Ann Turner, who being duly sworn, deponed as follows: “On the 23rd evening of July, my little boy, 6 years of age, jumped over a fence, and Defendant [did] strike him. I called to him not to strike the child, when he said he would whip the whole of us. I was sitting down milking. Defendt. came over the fence and struck the boy, and struck me. And then challenged my husband to fight, but I prevented him. I never heard of any complaints about my children. All which is truth as I shall answer to God.” [B]137 Compeared also John Turner who, being duly sworn, deponed as follows: “I was at the house yard, and one of the little boys threw a piece of mud. When the Defendt. came to me with a whip, I asked him what he was going to do, and he then struck me, and came over the fence and struck me while I was milking. And struck my mother also. All which is truth, &c., &c.” Compeared also George Turner who, being duly sworn, deponed as follows: “I was not present at the assault, but met my wife running. She said she was running away from John Bourk (the Defendt.), who had been striking her and the children. Of course I took her home to the house, where the Defendt. came over to my house and challenged me to fight. All which is truth, as I shall answer, &c., &c.” Compeared also James Rickards who, being duly sworn, deponed as follows: “I heard Deft. challenge Turner to come out and fight. ‘Come out’ was the words used. There were three persons with Deft. Did not see more. I do not think that these people came to help Defendt. Defendant had complained that the children had been slinging103 stones.” All which was truth, &c., &c. Compeared also, for the Defence: Charles Stotgale who, being duly sworn, deponed as follows: “I know nothing of the late quarrel, but at Mrs. Bourk’s on the 10th of last September Mrs. Turner said if ever the Deft. spoke to her she would spit in his face, and told her boy ‘to do so too.’ I have heard several neighbours complain of them. All which is truth, &c., &c.” [B]138 Compeared also Henry Else who, being duly sworn, deponed as follows: “Sometime in last March [I] heard Turner and his wife threatening to be revenged on John Bourk before 6 months. The Turners’ children104

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are bad children, and very abusive to people generally, and throwing stones at us while we are scooping for fish – and on one occasion fired a gun at us. All which is truth, &c., &c.” Compeared also Cornelius Fidler who, being duly sworn, deponed as follows: “I was one evening at Wm. Hallett’s, when one of Turner’s children threw a stone and hurt a cow of Wm. Hallett’s. They have thrown stones at me as I was passing – it is a practice of theirs. They have thrown mud at my windows, and my wife [has been] abused by them.” All which was truth, &c. &c. Compeared also Ambroise Jourbin who, being duly sworn, deponed as follows: “I was in Defent’s service. Saw Turner’s children come and throw mud, and the more Deft. tried to stop them the more they threw. It was this summer before the Grand Court.105 He ran after them to frighten them. They were too far for me to hear. These children slung stones across the river at my wife. All which is truth, &c., &c.” Compeared also James Rickards who, being recalled106 and warned that his former oath was still binding on him, he stated that his little girl was once hurt by one of the children of Turner’s, who had thrown a stone at it. Verdict: Guilty. Sentenced to be fined – sentence deferred107 [B]139

Andrew McDermot versus Louison Marcellais [Case 170] Debt: £7.10.0 Case went by Default: Plaintiff swore to correctness of his account. Constable A. Vandall swore to delivery of summons. 10 days to pay the above sum: £7.10.0

Andrew McDermot versus Charles Stotgale [Case 171] [Undisclosed Claim] This case referred to arbitration.

Public Interest versus James Mulligan [Case 172] Selling Spirits on a Sunday Contrary to his Licence

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Philipe Stevenson, who being duly sworn, deponed: That on the 1st September [he] saw Deft. sell some whiskey to an Indian. “I met Jacob, and went to Mulligan’s, and took 2 quarts of beer. I did not see him, Jacob, buy the whiskey. All which is truth, &c., &c.” Compeared also André Harkness who, being duly sworn, [deponed]: “This Indian lived with me, and he would go and pawn to Deft. his mittens, belt, & I warned Deft. not to do so as he was an Indian. This was 18 months ago.” Verdict: Guilty & recommended to mercy. Fine: 5£ for spirits “ 5” “ beer W. R. Smith

Clerk of Court Commentary

Although James Mulligan was a frequent litigant, this was his only criminal conviction – or charge – in the General Court. The case is somewhat confusing. It purported to involve a violation of the terms of Mulligan’s tavern licence, not of the 1852 Laws of Assiniboia. The latter did not prohibit selling liquor on Sundays, but the licence terms presumably did. Yet there is no recorded evidence of anything having been done on a Sunday; and the only date specifically mentioned, 1 September 1859, was a Thursday. The Laws of Assiniboia did prohibit selling liquor to Indians, and the recorded evidence of both witnesses alleged only that offence. The fine, moreover, was that which the Laws of Assiniboia prescribed for the latter offence. There is no indication that the court took account of the jury’s recommendation for mercy,108 unless it was by altering the recorded charge to Sabbath-breaking from the more socially stigmatic intoxicating of Indians. [B]140

The General Quarterly Court, held on the 15 th day of December, 1859 109 At which were present the following magistrates, viz.: William Mactavish Esquire, President Doctor Bunn Esquire, JP François Bruneau Esquire, JP Robert McBeath Esquire, JP Thomas Sinclair Esquire, JP

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The Queen versus Catherine and Mary Daniel [Case 173] For Stealing from out of the Drawer of the Shop at [Lower] Fort Garry Mary, 13 years of age, Catherine, 15 years of age, pleaded Not Guilty for [respectively] having received the property, knowing the same to have been stolen [and theft]. The Jury [was] duly sworn. Margaret Daniel, who being duly sworn, deponed as follows: “On the 10th October money was taken from the Lower Fort Garry shop. [I] saw Catherine get in at the window and take money out of the drawer, and come out with money in her hand – she said it was about £6 – & then went and bought some articles in the shop when it was opened. She gave me one pound, and I bought things with it.” ¶ “I saw her after: another time – latter end of October – go into the shop, and I went in with her. She took money from the drawer, and took out five notes: £5. The drawer was not locked. And then we [B]141 came out and went afterwards into the shop and purchased some articles. Cannot say if all the money was spent.” ¶ “She told me she gave some of the money to Mary Daniel, and Mary told me that Catherine gave her the money. She told her sister she had found the money. I do not know how much money Catherine gave to Mary – she never told me. Mary told me she got money from Catherine. I did not see her spend the money, but she told me so. Did not see Catherine give the money to Mary, but Mary told me so. Mary was not with us when the money was taken. I only once heard Catherine say the money was stolen.” Verdict: Catherine Guilty; Mary Not Guilty. Sentence: Two weeks from this day.110

The Queen versus Robert Sutherland [Case 174] For Stealing Brandy out of Cargo on the trip from YF [York Factory] to RR [Red River] Pleaded Not Guilty

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Andrew Lewes, who being duly sworn, deponed as follows: “[I] saw Prisoner take a hatchet and a nail, which he drove into the puncheon, and take out some brandy – a little below the 18 Mile Island. John McNab told him not to do that. He replied he did not care a damn. At the Poplar Point he told me to haul away my legs off of the puncheon,111 and then he drew some rum out of it – about a pint in a pannikin. All which is truth, as I shall answer to God.” [B]142 Compeared also Baptiste Courchaine who, being duly sworn, deponed as follows: “I was in the boat with the Prisoner, and saw him in Lake Winnipic, near to Point aux Trembles. I there saw him take out about a pint of brandy out of a cask in the boat. He bored a hole with a nail. Cannot say that he was worse for the liquor he drank. Did not see him move the legs of the last witness. All which is truth, &c., &c.” Compeared also Pierre George who, being duly sworn, deponed as follows: “I went to York Factory in the same boat with Andrew Lewes, and never saw Robert Sutherland, either by night or by day, at any place, take any spirits from any cask or vessel on board of the boat. I heard Robt. Sutherland tell A. Lewes not to take any rum. All which is truth, &c., &c.” Compeared also Pierre Pepin who, being duly sworn, deponed as follows: “I never saw R. Sutherland take any rum, and never saw any rum taken by Prisoner. All which is truth &c., &c.” Verdict: Guilty. Sentence: two months’ imprisonment.

The Queen versus James & William Lewes [Case 175] For Stealing Liquor on the route from York Factory to Red River Pleaded Not Guilty Pierre George, who being duly sworn, deponed as follows: “I know that these two men took brandy, and that James pierced the cask with a nail and axe, and took about a pint, and stopped up the hole with [B]143 grease. William held the pot. The place where they took the brandy was below the Rock Fall. [I] saw them only twice taking it. All which is truth, &c., &c.” Compeared also James Lewes,112 sworn: “Pierre Pepin told me that the two witnesses were to swear false.” All which was truth, &c., &c. Compeared also Baptiste Courchaine who, being duly sworn, deponed as follows: “I never saw these young men with liquor, or drunk, [or?]113

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heard talk of their having taken brandy.” Knows of no-one having taken any. All which is truth, &c., &c. Verdict: Not Guilty

The Queen versus Willm. Prince [Case 176] For Stealing Rum and Brandy Pleaded Not Guilty Aseemaykeezeek or Grey Eyes who, being duly sworn, deponed as follows: “We were drinking tea, when the Prisoner called me to assist him to haul up the boat. I smelt him strong of rum, and he asked me to drink, and I did drink it. And I saw Prisoner place the knife between the staves, and took some – which I drank. All which is truth, &c., &c.” Compeared also John Knott who, being duly sworn, deponed as follows: “I saw the Prisoner drunk, and saw some rum in a pan, and a hole in the cask – at Lobstick Island – which had been opened with a knife. [I] took the rum and threw it away into the river. All which is truth, &c., &c.” Compeared also Thomas Prince who, being duly sworn, deponed as follows: “I saw Grey Eyes drawing liquor, & he gave me some, & I drank it. All which is truth.” Verdict: Guilty. Sentence: 1 month’s imprisonment. [B]144

Andrew G. B. Bannatyne versus Wapoose LaPine [Case 177] Debt: £2.8.0 The account sworn to as correct [by the Plaintiff], and Constable Poitras swore to delivery of summons. [Default judgment:] 10 days to pay the above.

James Mulligan versus Daniel O’Brien [Case 178] For £15.18.0 This action was raised by Plaintiff under the following [alleged] circumstances: Plaintf. had sold an old house to Defendant, and there happened

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to be two houses standing together. The house the Pltf. wished to dispose of was pointed out to Deft., and he agreed to pay the stipulated sum of 30/ for it, and sent people to take it down and remove it. And in the place of taking down the house sold by the Pltf. [they] had taken down and removed another house, also the property of Pltf., and of a considerable deal more value than the one sold to Defendt. And furthermore – the premises being fenced about, and about 6 bushls. of land planted with potatoes – in removing the building the people had removed the fencing and neglected to replace it, and pigs had got in and destroyed the whole crop of potatoes; & the Pltf. now sought compensation to the above amount stated.114 The Plaintiff failed to bring any proof that the house was not the one sold to Defendt., or that the fencing had been removed by Deft’s party. Case Dismissed115 [B]145

Andrew G. B. Bannatyne versus Louis Gagnon [Case 179] [Debt:] £6.5.3 Case by Default: Plaintiff swore the above account was correct. Constble. Cunningham swore to delivy. of summons. 10 days to pay the sum of £6.5.3. W. R. Smith

Clerk of Court Commentary

The Nor’-Wester account of this session reveals three cases that were on the docket but were not mentioned in the official record. They all deserve mention. In the first, A.G.B. Bannatyne, acting as agent for an American party, sued one René Bernard on a promissory note made in the United States. The defendant challenged the court’s jurisdiction over the matter – probably because of the international nature of the transaction – but Recorder Bunn would have none of that: “Dr. Bunn ... informed him that ... there could not be the slightest doubt, and as a proof of the competency of the Court, if the Defendant did not pay the money they would clap him in prison ... Following the advice given to them by the Bench, the parties retired and settled the case out of court.”116 The second was a dispute over ownership of a heifer between Mrs Mary Bird and Miss Jane Clouston. The dispute was one of almost a year’s standing. It had originally been tried in the Lower District (St Andrew’s) Petty Court, but the magistrate

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in that court had been unable to make up his mind.117 The matter had then been postponed over the summer, arbitration had been offered by the plaintiff and refused by the defendant, and an error had been made in the summons for this session of the General Court – an error which Recorder Bunn ruled “fatal” to proceeding at this time. The matter was eventually tried at the March 1860 sitting (case 183, [B]151). In the course of stating his reasons for deferring the case on this occasion, Dr Bunn speculated, without deciding, as to whether the delays might have provided an outright “bar to the action,” since it “would be monstrous to allow cases of this kind to hang over until traces of the identity of the animal were destroyed.” The Laws of Assiniboia did not contain any time limits for litigation, but the equitable defence of “laches” for undue delay may have applied to a case like this, where the remedy sought – return of the animal – was of a type awarded by English courts of equity. The third undisclosed case was the most interesting. Six years previously, a man called George Lyons – a former Chelsea Pensioner – had disappeared without trace, allegedly on the same day he won a petty court award for unpaid wages against Joseph Gazden, another ex-pensioner, for whom Lyons had worked at one time. Rumours spread to the effect that Gazden had murdered Lyons, and in the fullness of time, after Assiniboia authorities had attempted unsuccessfully to locate Lyons in Canada,118 Gazden was arrested, charged with murder, and released on bail. No prosecution followed, however, and at this session of the court, the accused applied to be released from bail. Evidence was heard from several witnesses; but although some of it was quite damning, Recorder Bunn expressed the strong opinion that none of it was legally probative. Gazden was accordingly released from bail. A month later, the Nor’-Wester reported a coroner’s inquest into the sudden death of Joseph Gazden’s wife. Again, the evidence was lurid but unsubstantiated. For example, Gazden’s son-in-law testified, without proof, that the deceased had been poisoned by her husband. The coroner’s jury, whose foreman was James Ross, concluded that Mrs Gazden, known to have lived a dissolute life, died from “natural causes, aided perhaps by carelessness and intemperance.”119 Her husband eventually left the settlement, never to be heard of again.120 [B]146

The General Quarterly Court, held this 15 th day of March, 1860 121 At which were present the following magistrates, viz.: William Mactavish Esquire, President Doctor Bunn MD, JP François Bruneau Esquire, JP Robert McBeath Esquire, JP Thomas Sinclair Esquire, JP

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William Flett versus Joseph Parissienne [Case 180] For Breach of Contract & Debt of £ 8.1.6½

Defendant acknowledged the debt. Judgement given for the full amount of Debt: Costs:

£8.1.6 ½ .3.6 £8.5.0 ½

10 days grace to pay

Joseph Fortescue (pro Js. McKay) 122 versus Alexander Dahl [Case 181] Damages for the Loss of a Horse: £45.0.0 [It was stated by Plaintiff’s Agent that] the horse was put with Defendant to keep over the winter. Compeared William Rowand, sworn: “I was with McKay when the bargain was made, and the bargain was that he, the Defendt., was to get £7, and only 20 bushels of grain, and the horse was not to be used. I only heard these stipulations, and I was close to them while they were speaking. All which is truth, as I shall answer to God.” [B]147 Compeared also William McBeath who, being duly sworn, deponed as follows: “I took the horse down to the Dahls. The horse was not sick. He was not fat, but [I] cannot say whether he was sick or not.” [sic] Thinks he was worth £25 – did not appear lame. “I saw two boys taking hay home from the hay ground, [and] saw the horse was very poor when he was brought back. On the hock of his hind legs cuts had been [missing word]. The horse could not stand. He appeared to be ill, as well as having bad legs. Cannot say how long he remained with Dahl, but a great difference had taken place. I was two or three times assisting to rise him.” Does not think the load of hay too much. The horse looked well at that time – this was before Christmas. “The last time I assisted to raise him up we slung him to prevent his falling down again. All which was truth, as I shall, &c., &c.” Compeared also William McDonald who, being duly sworn, deponed as follows: “I was hired by Defendant to go out for hay. The horse was then in good condition. He was not so smart as one would have thought. His forefoot hoof was cracked. Saw him going to water, I know that Defendt. shod him in the forefeet.” Does not know if he was sick. Saw him with Deft., and went up to Kitson’s with him. “The first time I saw him up, he was much

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poorer, and [there were] marks of wounds in the hind legs, and his legs were swelled. It was only about two miles out in the plains to where we went for hay. I assisted only once in lifting the horse. All which is truth, as I shall answer to God.” [B]148 Compeared also John Henderson who, being duly sworn, deponed: “I was hired by Defendt. to go to Bourks, and had this horse. He was neither fat nor poor. I was sent to feed and water him, and I saw he pointed with one of his legs. Did not see him kick – he lifted his rump. He stopped very often, and I thought him more sulky than sick – did not think he was too sick to work. Did not take a stick to cut the horse. Had two half chests of tea, or about 100 lbs. The horse was sweating under the collar on the return. I saw him after, in McKay’s stable, and did not know him again. All which is truth, as I shall, &c., &c.” Compeared also James McKay [Senior], [who was] sworn, and deponed as follows: “I saw the horse before he went to Defendt’s. He was lean. [It was] about the latter end of October. From his general appearance he was in health. The horse was worth £35 at the time he went to Defendt’s. I saw him often in use by Defendt’s family. I checked Deft’s son and Murray’s son for hard driving him – he was foaming with sweat. Saw him frequently in harness during the time Deft. had him. After seeing the two boys with the horse, I did not see the horse again till near about Christmas – either the week before or after – at about 8 o’clock in the evening. Wm. Gunn and Deft’s son brought the horse to my place. It was dark, but I perceived the horse’s hind legs were swelled and discharging matter. He was about 2 months at my place before he died. We had to strap him up. All which is truth, as I shall, &c., &c.” [B]149 Compeared also George McKay who, being duly sworn, deponed as follows: “The horse was very poor when brought back one week before Christmas – hind legs swelled, and wounds. [They were] cut, but not with a sharp instrument. Three days after he was brought home he could not stand, and his hind legs [were] very much swelled. [He] was never able to support himself – had him strapped up till he died. He could not suffer a touch. No disease in the fetlock joint – a running took place. Near a month before, Deft. asked me to go and see the horse. The hoof of the foreleg was got off after he died. I think the disease in his legs was the cause of his death. Two months after he was at Deft’s I would not have given £20 for him, and when brought back he was not worth five shillings.” All which was truth, &c., &c. Compeared also Angus McKay who, being duly sworn, deponed as follows: “I delivered the horse in the beginning of November to Deft. in good

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health. And at that time he was worth £35. I have seen the horse used by Deft., but have not seen him in such good condition as when I delivered him. And when he came back he was very poor, and I assisted to lift him up. I was employed to bring the horse back, & showed the letter to Deft., but he refused to give the horse up for the present, and kept it three or four days longer, and then returned it. The legs were much hurt by violence of injury he had got.” Does not know if the horse was used 3 or 4 days after he was brought home. He continued to fall off from the time he returned. All which is truth, as the Deponent shall answer to God. [B]150 Defence: Compeared Francis Curtis who, being duly sworn, deponed as follows: “I saw the horse about two weeks after Deft. got it. He was a little lame, did not appear healthy. [I] saw him every day for about three or four weeks – he had plenty to eat and drink.” Did not see him improve, nor could he say that he seemed to decline. “The horse was not in such good condition as when he got him. When he, the Deft., returned him, his legs were much swelled and I thought he was dying. The last time he was used he went 8 or 9 miles – 2 or 3 weeks after, he fell lame after he had been used. He was first lame of one leg and then another.” Does not think that the horse was sick from disease nor from violence, but perceived the horse had difficulty in rising. “All which is truth, &c., &c.” Compeared also John Dahl who, being duly sworn, deponed as follows: “I was present at the time of the bargain. My father agreed to keep the horse for £7, and was not to send the horse to the woods – but he might use him for going errands – as he was wishing him to be in order for the ploughing time.” All which was truth, &c., &c. Compeared also Mr. Berdic [Burdick?] who, being duly sworn, deponed as follows: “The horse, as far as I can say, appeared generally well-looking except his legs. I consider the horse to have been worth £15 only. All which is truth, as I shall answer &c., &c.” Verdict: Damages Costs

£10.00.00 2.14.06 £12.14.06

[B]151

Henry McKenny 123 versus Clinton Geddings and G. Moar [Case 182] Debt: £17.15.4

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Case went by Default: Plaintiff swore to correctness of his account. Constable Smith swore to delivery of summons. 10 days to pay the: Debt of £17.15.04 Costs .01.00 £17.16.04 124

Mrs. Mary Bird versus Mis. Jane Clouston [Case 183] 125 For a Heifer Daniel Wilson, who being duly sworn, deponed as follows: “The heifer in dispute was first on the S. side of the river. In the spring of 1858, before putting it away, I marked it. I cut a piece off the top of the left ear, and split down the middle. [I] saw it several times during the summer. [I] sent 2 in the spring, and 2 after. 3 of them came back, and one was lost. And I was sent to look for it. [I] saw one at Miss Clouston’s. I examined the calf, and thought it was the one I was in search of; & I and Js. Bird [missing verb?] Mr. Lowman and Js. Clouston. Mr. Lowman wanted to claim it, and did not appear willing to give it up. I give the marks I had put on it. I am sure it is the calf that I marked. [I] saw the calf in the summer. There was a festering in the side. I was sure it was Mrs. Bird’s. I attended the cattle all the year – I had no doubt. On my oath, I was never offered any reward. All that I know is: this is the calf that I and Geo. Adams marked. All which is truth, as I shall answer to God.” [B]152 Compeared also George Adams [who], being duly sworn, corroborated the evidence of the former witness: that he had held the heifer while Wilson had marked it, and that he had never seen the calf since. “All which is truth, as I shall answer, &c., &c.” Compeared also Joseph Bird: “I was called to examine the marks, and Js. Clouston shewed me an ox whose ear had been froze off on the top. And when I looked at the ear of the disputed heifer I saw its ear had been cut with a knife.” (The Witness here produced a model in paper of the figure of the ear when cut.) All which was truth, &c., &c. Compeared also David Taylor who, being duly sworn, deponed as follows: “I know the marks [with] which both parties are in the habit of marking their cattle, and have seen the disputed heifer – and she carries Mrs. Bird’s mark. No accident could have produced the same kind of mark. [I] have had some talk with J. Clouston, and he said that the heifer was not his sister’s by the mark.” All which was truth, &c., &c. Defence:

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Amable Loucier, who being duly sworn, deponed as follows: “I was at Miss Clouston’s about 2 years ago. I was constantly seeing the heifer – from a calf – during the summer, and there is no doubt on my mind but that the heifer is Miss Clouston’s. I know it by mark and apprearance, and also by colour. All which is truth, as I shall answer to God.” [B]153 Compeared also James Clouston who, being duly sworn, deponed as follows: “This calf in dispute belongs to my sister. The mark on the calf was marked, and I knew the calf at a 100 yds. distance. I brought the calf home, and am certain, to the best of my knowledge, that it belongs to my sister Jane. All which is truth, &c., &c.” Compeared also James Taylor who, being duly sworn, deponed as follows: “I have seen the heifer. Mr. Lowman told me that he had lost a heifer, and told me her marks and colour. This animal now in dispute neither answers to the marks or colour then given by him. All which is truth, &c., &c.” Compeared also Edward Bird, [who was] sworn and deponed: That Js. Clouston came to his place looking for cattle in the fall, and took away this heifer. Knows nothing further about it. “All which is truth, &c., &c.” Verdict for Plaintiff: the heifer to be returned to Mrs. M. Bird.

Robert Tait versus Robert and Jacob Beads [Case 184] Debt of £9.10.10 Plaintiff swore to correctness of his account. John Corrigal, Consble., swore to delivery of Summons. Judgement by Default: 10 days to pay Costs

£9.10.10 .01 £9.11.10

W. R. Smith

Clerk of Court Commentary

The Nor’-Wester account includes a case not found in the official record: Pierce Barron v. James Mulligan. It was a claim that Mulligan had trespassed, by cutting trees for fencing, upon land he had previously sold to Barron, but which the latter had not taken the precaution of registering in the HBC land records. The

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testimony was enlivened by hostile interjections from both adversaries. In the end, the jury brought in a verdict of 1 farthing damages against Mulligan (usually a sign of contempt for a picayune or morally unmeritorious claim), plus 6 shillings for the value of the trees cut.126 Mulligan later counterattacked with a successful trespass action against Barron at the June and September court sessions.127 [B]154

The General Quarterly Court, held on the 20 th day of June, 1860 At which were present the following magistrates, viz.: William Mactavish Esquire, President Doctor Bunn MD, JP François Bruneau Esqre., JP Robert McBeath Esqre., JP Thos. Sinclair Esqre., JP

Morison McBeath versus Louis Gladieux [Case 185] For a Mare & Colt Plaintiff stated that: “The last July my horses were brought home:128 a mare and colt of 2 yrs. old. [I] let them go again, and have never seen them since, but have been all the fall and winter looking for them. A man who was looking for horses he had lost, I enquired of him if he had seen mine, and I told him the marks and colour of those I had lost. By the information I got from this person, I was enabled to trace my horse to Defendant.” Compeared Alexander Sutherland who, being duly sworn, deponed as follows: “I was going off to look for my horses, and, before starting, the Plaintiff asked me to look out among the horses I might see on my route for his mare – and [he] told me the marks to know her by, viz.: a red mare, speck in her eye, and a white hind leg. I went to [B]155 Hugh Ross, and I told him the marks of the mare Pltf. had told me to enquire after. After I had told him the marks, he said he had given shelter to such an one for a week, and he had heard since that she was dead, but the foal was alive and about 3 yrs. old.” All which was truth, &c., &c. Compeared also William Sayer who, being duly sworn, deponed as follows: “The first time I saw the mare was as I was going to the lake. I went to Gladieux to borrow a horse. He lent me the mare. She was a light red & speck in the eye. I got the lend of her from Gladieux. She was worth about £15. All which is truth, &c., &c.”

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Compeared also Hugh Ross who, being duly sworn, deponed as follows: “I heard about this mare long before sending for her. I found her to have a speck in the left eye, a small white spot on the forehead, one white foot, and colour red. She had a colt following her. Moral Dejarlais thought the mare was his. I gave it up to a person he sent for it. Thinks the mare worth £15. My son never rode her – only once to the church for the purpose of advertising her. All which is truth, &c., &c.” Compeared also Roderick Ross who, being duly sworn, deponed as follows: “I was present when the Plaintiff gave the marks of his mare as follows: a speck in the eye, a white star on the head, white hind leg, [B]156 little only. We kept her about a week. Dejarlais claimed her. The colt was not fat, but the mare was wretchedly poor. After Plaintiff gave the marks, Defendant said it was the mare, and that it was dead; and said he would not pay. If the mare was in condition, she was worth about £25.0.0. My brother rode her to the church.” All which was truth, &c., &c. Compeared also [blank] Morrisan who, being duly sworn, deponed as follows: “I know that the mare was taken out of Gladieux’s park by C. Ross. The mare was fat when taken away, and a fortnight after returned very poor. Louis Gladieux brought her back after she had been away. My son brought a message to send the mare. My son told me that the mare was red, two hind legs white – one higher white than the other – one eye white. All which is truth, &c., &c.” Compeared also W. Ledoux who, being duly sworn, deponed as follows: “I saw this mare more than once used by the Ross’s. The first time he went to mass with her. Then he lent her to a man to go and seek for lost horses. The first time she was fat; the last time I saw her she was poor. She was a red mare. All which is truth, &c., &c.” Compeared also Antoine Dejarlais who, being duly sworn, deponed as follows: “I was at Mr. Lane’s fort when I heard that the Ross’s had a strange mare in hands. [B]157 My cousin had lost one, and I thought it might be his. It had been two weeks with Ross’s family the first time I saw the mare. It was in good condition. A week after, it was very so-so. I took it and put it in my stable. I sent Morisan’s son to fetch the mare. Gladieux told him if he had seen her before taking her away he would have taken her. It was Gladieux who took her away. The mare was red, [with] one leg white half way up, one small white star on forehead on the right side. It was I that claimed the mare for my cousin, and he had given the mare to L. Gladieux to keep – and the colt was to be his for keeping them.” All which was truth, &c., &c.

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Compeared also [blank] St. Lucier who, being duly sworn, deponed as follows: “When Louison came to get the mare at Ross’s, I saw her then. I had seen the mare before Christmas at the Grande Couteau. Saw the mare 3 times after New Year: about 1st February – saw her with Louison. The mare was worth about £25. She had a white speck on her left eye. All which is truth, &c., &c.” Compeared also Antoine Fidler, who deponed to having seen the mare with Ross’s sons, and that she was fat, after New Year’s Day. “All which is truth as I shall answer to God.” Verdict for Plaintiff: Costs:

£15.0.0 01.5.0 £16.5.0

[B]158

Joseph Langevine versus Loucien Jeroux [Case 186] Debt of £7.4.0 Plaintiff swore to his account being correct. Constable Dauphiny swore to delivery of summons. This case went by default. 10 days grace to pay £7.4.0.

2 nd day: 22 June 1860 James Mulligan versus Pierce Baron [Case 187a] [Trespass – Boundary Dispute] This case was deferred on account that the Defendant had not put in his proofs from the acknowledged surveyor, without which his case could not be sustained. Therefore, as the Jury had been empanelled they were entitled to their pay, which sum was paid out of the Plaintiff’s deposit and to be charged to the Defendant.129 W. R. Smith

Clerk of Court Commentary

Also tried at the foregoing session of the court, and not in May 1861 as shown in the records, was The Queen v. Daniel O’Brian.130 Only that overlooked case received newspaper consideration.131

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[B]159

The General Quarterly Court, held this 20 th day of September, 1860 132 at which the following magistrates were present, viz.: William Mactavish Esquire, President Dr. Bunn MD, JP François Bruneau Esqre., JP Pascal Bréland Esqre., JP133 Robert McBeath Esqre., JP Thomas Sinclair Esqre., JP

Angus MacKay versus Samuel Bannerman [Case 188] £30 Damages [For Unauthorized Borrowing of and Injury to Mare] Plaintiff stated that Defendant had taken his mare, and worked her in a reaper, without his permission. Defendant allowed that he had caused the death of the mare, but disavowed the value fixed as too much. David Spence, who being duly sworn, deponed as follows: “I know but little of the mare. I sold her three years ago for £20. I seldom used her, as she was so wild. I consider the mare was worth the above sum.” She might have had foals – did not know. “The mare was a handsome beast. All which is truth, &c., &c.” Compeared also John McKay who, being duly sworn, deponed as follows: “I bought the mare for £20 and I changed her with my brother Angus. He gave me two horses, and I gave [him] the mare and foal for the two horses. [B]160 I think the mare was worth £20 and not £30, but perhaps between the two £25 would be near the full value of her. The young horse I got for her was worth £8 at that time, but both horses were worth £35. I do not know if she was so tractable in the spring (57), as when I left here. I had her only once in harness.” Knows nothing of the mare being taken. “All of which is truth, &c., &c.” Compeared also Donald Bannerman who, being duly sworn, deponed as follows: “My son informed me that he was at liberty to use the mare for having found her. [I] saw her a few days before – the mare fixed before a pair of oxen in the reaper. The first she was quiet and tractable, and on the second day she went on quiet for about an hour. When my son mounted her she became restive. While she was in Monkman’s possession I refused

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her at the sum he asked. I understood that Angus McKay had given my son the mare, and I gave in consideration a debt he was due me for merchandise, &c., &c. In my opinion the mare was not worth more than £15. I do not think the mare was yoked the first day she was there. I know nothing of any bargain between the parties, never saw the mare play any tricks, nor did my son give her any bad usage when he got on her. I consider the Pltf. due to me the following: 1 boat sail £6.0.0, for the lend of my reaper for two months £10. All of which is truth.” Compeared also Angus McBeath who, being duly sworn, deponed: “Pltf. admitted to me that he had been offered a horse for his lost mare by the [B]161 Bannermans, but had refused it. At that time my impression was that he did not intend to press for payment of his mare. My opinion changed in about a month or six weeks after. My own knowledge of the mare is very little, nor can I state her value. All of which is truth &c., &c.” Compeared also George McKay who, being duly sworn, deponed as follows: “What the value of the horses my brother gave for his mare might have been I cannot say, but I think he [sic] was worth the mare. What the value of the two horses were I know not, but I think the mare was worth £25, and the two horses were worth more than her. It is true that she was very wild. All of which is truth, &c., &c.” Compeared also Morisson McBeath who, being duly sworn, deponed as follows: “I believe the mare was by her looks worth £20, but on closer acquaintance she was very little worth. [I] saw a man leading her down, and the man said he could not ride, as she was too wicked. This was before she went to Reed Lake. All of which is truth, as I shall answer to God.” Verdict for Plaintiff: Costs:

£20.0.0 2.0.6 £22.0.6

George McKay versus Gabriel Dumont 134 [Case 189] For the Keep and Finding of a Horse in the Sioux Country and Bringing him to the Settlement Plaintiff stated that he had found the horse in the Sioux country and thought him a [B]162 horse belonging to the Sioux, until someone informed him that it belonged to the Defendant. “I have seen the Defendant and asked him to settle with me, and he has refused to do so. I brought the horse home and kept him in all the winter, and in the spring let him

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out on the common. I therefore claim the sum of £5 for the expense and trouble.” Defendant having failed to appear, Constable Clouston swore to the delivery of the summons [and] case went by default: 10 days to pay £5.0.0.

Robert Morgan versus Toutsaint Foix, 135 Ferryman [Case 190] Damages £30.12.6 [For Negligent Ferry Accident] Plaintiff stated that he had lost property to the above amount through the negligence of Defendant, who is the Public Ferryman, by the cable of his ferry boat being deficient and broke. Compeared Antoine McLeod who, being duly sworn, deponed as follows: “I took the first cart into the scow, the following ox being tied to the cart I led in. The one I led was already in, and the following one on a balance just entering. The ropes broke away and the scow went adrift.136 When we got adrift I and two others had to pull across the river. In the cart which was lost there was 1 cooking stove, 1 cask of sugar, 1 cask molasses, 2 plough coulters,137 6 frying pans, and a box of clothing, and 6 camp ovens. The rope that holds the scow and the flap broke. [B]163 The oxen descended into the scow quietly. I had a small stick in my hand to stop the ox, and I stopped him three times. I have always been in the habit of leading down the banks two animals at once. All which is truth, &c., &c.” Compeared also Charles McNab who, being duly sworn, deponed as follows: “I crossed the same day as the Plaintiff, and the second trip the scow made, the cable broke. I had two carts each time. I do not know if the scow painters138 were deficient or bad. I did not tie the oxen, and led them down singly. I spliced the cable before leaving. All which is truth, &c., &c.” Compeared also A. G. B. Bannatyne who, being duly sworn, deponed as follows: “I crossed at the ferry the day before the former witnesses. I then saw that the cable was bad. I also know that the banks leading to the scow were very bad – so much so that I broke the shafts of my buggy on them. As for the painters, they appeared good. The whole of the arrangements were bad, and none were there but children to work the scow.139 All which is truth, &c., &c.” Compeared also William Fairbanks who, being duly sworn, deponed as follows: “I was on the bank the day Mr. Morgan’s carts crossed. It had

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been raining. In going into the scow, the ox tied behind knocked his head against the cart and backed. Had the first ox gone on as far as he ought to have done there would have been room enough. In my opinion the accident was occasioned by taking two oxen at once into the scow. I do not recollect to have seen more than one painter holding the scow. The painter did not break, but loosened. All which is truth, &c., &c.” [B]164 Compeared also Pierre Bruce who, being duly sworn, deponed as follows: “One day I was looking over the scow and repairing it. I examined cable and found it very deficient, and the Defendant asked me to apply to Dr. Bunn140 for a cable. All which is truth, as I shall answer to God.” Verdict: Both parties being in fault, all the expenses, including costs and damages, to be equally divided. Defendant’s share £10.2.9 – 10 days grace to pay the above sum. Commentary Although fair and in accord with common sense, this outcome was legally incorrect. Had the case been decided by a court well versed in common law, the contributory negligence of the plaintiff’s employee in leading the two linked oxen onto the ferry simultaneously would have defeated his claim for compensation altogether. It would be years before Parliament would legislate to make it possible to apportion liability between a negligent defendant and a contributorily negligent plaintiff, as this Red River jury did.141 The next time someone sued for damages as a result of alleged negligence in the operation of a settlement ferry, he chose to go against the public authorities who franchised the ferries to private operators rather than against the operator, and was unsuccessful for that reason.142

John Taylor versus Patrice Bréland 143 [Case 191] Damages £12.0.0 [For Collision with Mare] Plaintiff stated that his mare was standing in the track, and the Defendant drove up his horse against his mare and hurt it by his trams144 striking his mare, of which blow she received a very serious injury – of which she died. Compeared Annette Comptois who, being duly sworn, deponed as follows: “I was in the house and saw the mare in the track opposite the stable. The mare had not far to go. She made an effort to escape, but the mare got

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struck by the trams of the Deft’s horse in the side. The track was narrow, and not wide enough for them both. When the mare was struck she fell into a drift. I thought the mare was hurt, as she could not eat nor drink. Pltf. saw the mare when he arrived. About a week afterwards the mare died. The horse was on the side, [B]165 and struck the mare on the side. Never heard that the mare was sick. She had been wintering, and had been brought home only two weeks before the accident. Deft. made no effort to check his horse. Cannot say he drove to hurt the mare purposely, but he made no effort to stop his horse. All which is truth, &c., &c.” Compeared, for Defence: The Defendant stated that the person who was with him when the accident happened, one François Jennotte, was not here in the Settlement at present, but he would state that the mare was 50 yds. from the stable, [that he] saw the mare, “and she kicked at me, and at my horse” and [that] the push she got could not have hurt any horse. “She tripped herself into the snowdrift.”145 Verdict for Plaintiff: Horse Costs

£ 6.00.0 1.16.6 £7.16.6

146

James Mulligan versus Pierce Baron [Case 187b] 147 Damages £10.0.0 [For Trespass and Boundary Dispute] Plaintiff stated that Defendt. has kept forcible possession of a part of his lot. Duncan McDougal [was] sworn, and deponed: That he had, agreeable to his instructions at last court, measured the two places pointed out by the parties. “I found 93 yards by the river and 96 by the fence, and I think the value of 10/ would make it all fair to both. All which is truth, as I shall answer to God.” Verdict for Pltf.: £ 0.00.06, Expences: 3.16.0 Commentary This case seems to have involved a claim by the plaintiff that the defendant was encroaching on his property, and the evidence of surveyer Duncan McDougal

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established that this was true – to the apparent extent of three yards at one end of the field. The damages award of 6 pence was a token sum, suggesting that the court did not think the plaintiff had been injured to any significant extent. However, the costs required to be paid by the defendant, which would have included service of the claim on the defendant, the jurors’ fees from the previous hearing, and Duncan McDougal’s fee, were more than token. For a precursor action, in which the defendant won token damages against the plaintiff, see Commentary following case 184, [B]153. [B]166

The General Quarterly Court, held this 20 th day of December, 1860 148 at which were present the following magistrates, viz.: William Mactavish Esquire, President Dr. Bunn MD, JP François Bruneau Esqre., JP Robert McBeath Esqre., JP Thomas Sinclair Esqre., JP Pascal Breland Esqre., JP

Public Interest versus Paul Boucher [Case 192] Petty Larceny: For Taking Rum from out of a Cask between York Factory and Red River Settlement Alexander Simpson, who being duly sworn, deponed as follows: “We slept on an island, and after we started, in Lake Winnipic, Prisoner took a dram of rum. They were sailing. Collin and another were not asleep. Prisr. gave a pot to Collin to take rum. Collin refused, and then Prisr. told him he would be answerable. On this, Collin went to the cask and said to the Prisr.: ‘You had better come to the cask and drink.’ Prisr. wanted Collin to drink first, but he would not, and then Prisr. drank, and afterwards Collin. After this Collin, being drunk, went to the cask himself and took some rum, and in trying to give some to the Prisr. in the stern of the boat, but being drunk, he tripped [B]167 and spilled the liquor. An Indian was wishing to take rum, and Prisr. was willing to give him, but Collin would not let him. Collin struck the Indian. This was early in the morning, and the boat under sail, at the time the rum was taken. Saw and heard all this with my own eyes and ears, but saw them only this once. But often saw the crew drunk. All of which is truth, as I shall answer, &c., &c.”

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Defence: Neganeecahpoo, who being sworn in the customary manner that unbaptized Indians are sworn, deponed as follows: “The Prisoner never gave me any liquor, nor did I ever see Prisr. take any. Saw Joe Collin took some in a pot, and gave to me to drink. Saw Prisr. drunk at Poplar Point. He was called to his breakfast and could not come, being too drunk. Did not see him drinking, but saw him drunk, and Joe Collin was obliged to steer the boat while he slept. All which is truth, &c., &c.” Compeared also Sabourrin, an Indian sworn in the Indian custom, [who] deponed as follows: “I never saw Prisr. take liquor, nor ever saw him drunk. Was in the same boat as last witnesses. Saw Prisr. at Poplar Point sleeping.” Does not know if he was drunk. He did not come to eat. “I heard Prisr. forbid the taking of liquor. Saw Collin taking and giving liquor to the Indians. All which is truth, &c., &c.” Verdict: Guilty Sentence: two weeks’ imprisonment [B]168

Public Interest versus Mary Park [Case 193] 149 Manslaughter Pleaded Not Guilty James Armstrong who, being duly sworn, deponed as follows: “The Deceased Indian came into my house about 6 o’clock in the evening. When I came home [I] saw the Indian sitting with a pot of liquor. A short time after, [I] saw Indians coming, and told my wife to clear the door. Mary Park was out at the door. Sometime after, [I] saw an Indian lying on the ground. It was about an hour and a half afterwards that I went to see this Indian – and about an hour before that Bayan Fidler told me not to go. The Indian appeared well in the morning, and at six o’clock [I] found him dead. Mary Park was running about outside the house, but [I] did not see anyone pursuing her. There was no appearance of excitement about the place at the time that I could perceive. All which is truth, as I shall answer to God.” Compeared also Joseph Armstrong who, being duly sworn, deponed as follows: “On the 27th June [I] was on the top of my father’s house looking out for horses. Saw an Indian running after Mary Park. He was drunk, with a stick in his hand. The stick fell from his hand, and he fell immediately after.

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I cannot swear how long the time might be between the Indian’s falling and the stick. Nor can I swear that Else and Fidler, the [B]169 two men, and a woman, were sitting about three yards from where the Indian fell. Mary Park threw the stick while running, and she might have seen the Indian fall. The Indian ran round the house two or three times after Mary Park. The stick could not have been thrown with any great force, as she threw it while running. All which is truth, as I shall answer to God.” Compeared also Cephas Fidler who, being duly sworn, deponed as follows: “On the 27th June [I] was coming down towards Armstrong’s house, and heard a noise. [I] saw young Armstrong on the house, and saw Mary Park, with a stick in her hand, walking. And then I saw her (Mary Park) running hard, and she went in the house. And I saw Armstrong run round the house. I then went round the house, and saw the Indian lying down, and two sticks beside him. One of these sticks was the one I had seen in the hand of Mary Park. This was about fifteen minutes after the Indian had ceased to breathe. I went away, and about an hour after I came back. The Indian had been turned on his back, and the old wife [was] washing the face. When she (Mary Park) was going towards the river, she must have met the Indian, as the head of the Indian was lying towards the road; and from the position that the body was lying the parties must have met. When Mary Park was walking she had a stick, and when I saw her running she had no stick. Armstrong told me that Mary Park had struck the Indian.” All which was truth, &c., &c. Compeared also Henry Else who, being duly sworn, deponed as follows: “I was coming down when I heard a noise. Saw Mary Park standing at Armstrong’s [B]170 door. I afterwards saw her running hard without a stick. Armstrong told us that Mary Park had struck an Indian. The first thing I saw was the head of the Indian. It was lying in a manner as if Mary Park had met him when running. The stick she had was a half-dry one, about one and a half inch thick, and a split [sic]. All which was truth, as I shall answer to God.” Compeared also Dr. James Paxton of the Royal Canadian Rifles who, being duly sworn, deponed as follows: “On examining the body, I perceived a wound on the nose, as from a blunt instrument, & bleeding. Had I been called on to this case and ignorant of all the circumstances attending it, I should have considered the person to have died from apoplexy. From the appearance of the brain, [it] seemed to shew that it had been formerly diseased. And there were no external marks to cause death. But a state of excitement and intoxication would no doubt accelerate apoplexy. Any blow given might have caused the fall and that concussion; and, as I before

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stated, accelerate the predisposition to apoplexy. All which is truth, as I shall answer to God.” Verdict: Not Guilty Commentary From the newspaper account of this trial,150 Mary Park and her friends appear to have been teasing the deceased, a drunk Indian named Antoine Juando who had some history of apoplexy. That was presumably the reason he was chasing the girl. Dr Bunn’s charge to the jury began with a stern censure of the young men present at the time the deceased lost consciousness, for having done nothing to render assistance. Then followed a very careful and fair summary of the law of manslaughter and the evidence. After the jury had returned its verdict, Bunn tongue-lashed the accused girl: “You are smiling. The Jury have brought in a verdict of Not Guilty, but remember that does not fully acquit you. You have escaped the consequences so far as man is concerned; but recollect that the all-seeing eye of God is upon you, and if you had any share in the death of the Deceased you will be punished. It may not be here – it may be hereafter. Go! Never appear here again.”

Queen 151 versus Baptiste Hupée [Case 194] Petty Larceny James Mulligan, who being duly sworn, deponed as follows: “In the fall of 1857 I had the article in question (a small round looking glass) in my possession, but it disappeared from my dwelling, and I spoke to the Prisoner to try and find out who had got it, suspecting the Indians. But [B]171 in conversation with Mr. Bruneau he told me he had seen the article, with my name on it, and afterwards I heard that it was in the possession of Mr. L. Thebeault. I went to Mr. Thebeault’s and asked him where he got it. He informed me that he got it from Bapte. Hupée, the Prisoner. Bapte. was in the Settlement at the time, and was well acquainted with the glass, and knew it to be mine. I had offered to pay him (Bapte.) for his trouble in trying to get it back.” Prisoner stated he had got it from an Indian, but could not tell his name, as he was a stranger in the Settlement, and had never seen him before. Verdict: Guilty. Sentence: two weeks’ imprisonment.

W. G. Fonseca versus H. McKenny [Case 195] Debt £4.6.7 [&] Damages $10152

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Plaintiff stated his case, thus: “At St. Paul’s I made a request to Deft. that we should travel and camp together, and that I should furnish a certain quantity of provisions to my men to eat as far as St. Cloude. At St. Cloude’s Deft. got from me 100 lbs. beef, 1 bushl. of beans. And Mr. McKenny was to assist me through to Red River Settlement. A bushel of beans was left by the negligence of Mr. McKenny. I had therefore to replace it by a bushel of pease.153 I had to lend my assistance to him by lending him my chains, &c., &c.” ¶ “Within one day’s journey of George Town, a dispute arose concerning a fire. We were I know not how long from St. Cloude. I also paid nine dollars, forty five cents, for feeding Deft’s cattle. Mr. Wright took Mr. McKenny’s word for $7.50 due by me to get the money paid here. Deft. was not my security. I was left at George Town without axe, utensils or provisions. I demanded payment [B]172 of the money advanced on his account en route, and he only would pay me $1.50.” Peter Morning, who being duly sworn, deponed as follows: “We had 2 bags of flour, 100 lbs. beef, 1 bushel of pease, 1 of beans. The most of this was in Fonseca’s waggon, and 2 hams. I know nothing of the bargain between the parties. The whole party used the provisions in common. Mr. Fonseca told me they were bought by him. I eat in common out of Mr. Fonseca’s and Mr. McKenny’s provisions. All which is truth, &c., &c.” Compeared also W. H. Lyons who, being duly sworn, deponed as follows: “I know that we got a bushl. of oats, and not a bushl. and a half. All of which is truth.” Compeared also Mr. Barber who, being duly sworn, deponed: That he doubted whether Mr. Fonseca had to pay to Wright, “for to my knowledge Mr. McKenny has sent a bill through the Post Office for the sum of $7.50.” All of which was truth, &c., &c. Case Nonsuited.154

Jean Mark Mager versus Henry Joichim [Case 196] For a Debt of £37.6.0 Alexander Petidigue who, being duly sworn, deponed as follows: “I cannot say how far the acct. book is correct; and concerning the sixty dollars, I know that I paid sixty dollars, and suppose that the Defendant had to pay the same, as we were on the same footing.” All of which was truth, &c., &c.

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Compeared also Felix Mager who, being duly sworn, deponed as follows: “I paid $2½ at St. Paul’s for mending a watch. I do not know if this book [sic] was at [B]173 St. Paul’s or not.” All of which was truth, &c., &c. The accts. were here presented, by which it appeared that the parties had joined in partnership, and from some trifling cause had broken up the concern. The Defendt. showed an acct. as offset against the sum sought, and several articles were obliged to be proved either as furnished by the Defendt., or originally belonging to him. Alexr. Petidigue, being recalled, stated that he could not tell who the cooper’s plain [sic: plane?] belonged to. If it belonged (the whole of it) to Defendant it was worth £3. Another item in the offset caused a deal of contention between the parties. This was the care of a horse from here to St. Paul. Mr. Langevin, who being duly sworn, deponed as follows: “I saw the horse going to St. Paul’s, and saw Defendt. taking care of it – and he did work that deserved to be paid for. To the best of my knowledge, when I saw the accts., between them there was a balce. of $17 or 18 in favor of Mager by the Defendt.” All of which was truth, &c., &c. Verdict of Jury for the balance of the debt, after deducting the offset, as consented to: Balance by Defendt.: £2.12.0 Expences: 1.11.0 £4.03.0

The Second day: 155 21 st day of December, 1860 Public Interest versus Henry McKenny [Case 197] For Selling Spirits Without Licence Clinton Geddings, who being duly sworn, deponed as follows: “I lived at Mr. McKenny’s [hotel] both before and after Christmas. He sold me spirits by the pint and half pint for money. I knew that he had no licence. [B]174 I did not wish to bring this case on, but thought it was only right to bring the case before the authorities. It is true that the Defendant arrested me for a debt. I can swear that at 12 separate times he sold spirits to me.” Defence:

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A. G. B. Bannatyne, being sworn, deponed as follows: In a conversation with the above witness he heard him say, that if McKenny took [him] to court for his debt he could or would bring this action against him.156 “All which is truth, &c., &c.” Compeared also Mr. Garrett, [who], being duly sworn, deponed as follows: “I have known the first witness for about the last 18 months, and from my own knowledge of the character of the witness I should be doubtful of his oath. I heard him say that if McKenny took him to court for a debt he would bring this action against him, and he never mentioned this action until he heard that Defendt. intended to bring on an action against him for a debt he was due to the Defendt. All of which is truth, as I shall answer to God.” Verdict: Not Guilty

Joseph Vandal versus James Taylor [Case 198] For 2-year-old Ox Plaintiff stated that he had lost a young ox, and both him and his two sons lost much time in searching for it on the Et. side of the river. “And although the animal [B]175 had been frequently seen during the summer, it all at once disappeared coming towards the fall, and we could not find it. I, however, came to the knowledge that the Defendt. had crossed to the Wt. side all his cattle, and that he had killed one that bore the marks of my animal. I went and saw the hide and head, and identified my animal by the same. My sons also saw the hide and head, and can swear the animal was mine.” The two sons of the above corroborated the whole of the above testimony on their oath, and declared it was all truth, as they should answer to God. Defence: Peter Knight, who being duly sworn, deponed as follows: “The last November, 59, I changed a heifer with Defendt. I went into his byre and saw five young animals, and there was one young ox among the number which the Deft. thought very much of. This young ox had a white back and white tail. Sometime in the following summer, in the month of June, [I] saw the same animal at the premises of Deft. at the milking yard. I have seen the

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hide, and know it to be the hide of the Deft’s animal that I had seen in November. I also saw the head, but having never seen it when alive I cannot say anything about it. ‘J.T.’ was the stamp on the ox. [I] did not see it on the hide. Saw it in the summer.” Does not know if the ox was lame or not. Could never see the head of the ox, as he always saw him from behind. “All which is truth, &c., &c.” [B]176 Compeared also Palm Saunders who, being duly sworn, deponed as follows: “I met J. Vandal, and he said he was looking for a young ox. I also saw his son Louis with a line in his hand, and he told me he was going for a spotted calf. I after this, as I was coming out of my house, saw old Vandal, and he asked me to try and get the hide of the ox Deft. had killed. All which is truth as I shall answer to God.” Compeared also George Taylor, son of Defendant, who, being duly sworn, deponed as follows: “I know all about this ox since he was calved. My father stamped the calf in the month of June. This fall, before the ice set in, we crossed this ox,157 and it was there about a month. It was the same animal I saw calved, and the same that was stamped and killed. All which is truth, as I shall answer, &c., &c.” The head of the animal was here produced, and positively sworn to by the two sons of Vandal. It was also sworn to equally positive by Defendant’s son. James Irvine will not swear positively that the head is belonging to the animal belonging to Vandal, but thinks it is. Verdict: in favor of Vandal. The ox valued at: £2.05.0 Costs: 1.15.6 £4.00.6 [B]177

Honble. Hudson’s Bay Coy. versus Ahnechorolning and Caranegunegan [Case 199] For Debt and Desertion John McTavish, Accompt. to H. B. Coy., swore that Ahnechorolning [had been] engaged, and had been advanced on account to the amount of £11.7.0; and the other, Caranegunegan, do. £13.1.0.

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Baptiste Bruce, Guide, who being duly sworn, deponed: That these two Indians deserted at the Grand Rapid at Lake Winnipic. Constable Corrigan swore to the delivery of the summons. Judgement went by Default and [sic: for?] the sums sought to be paid. And for the desertion: each of them to be imprisoned one month.158 W. R. Smith

Clerk of Court

4 General Quarterly Court of Assiniboia Records, 1861–65

Revolution engulfed the continent. American democracy was self-destructing. British Columbia, left rudderless after Hudson’s Bay Company rule, was becoming a Crown colony. Canada, frustrated by years of political paralysis, was proposing a daring new constitutional adventure. To many at Red River, however, frustrated by the prolonged stare-down between the company and the home government over Rupert’s Land’s surrender, and Canada’s averted attention, their political future seemed distant. In reality, change was closer than they imagined. And while some of the more restless launched hilariously unsuccessful democratic experiments, most were content with improved local government by a more competent and fractionally more representative Council of Assiniboia, and with a legal system guided by lay recorders whose performances generally surpassed those of their legally trained predecessors. When, in late 1865, the scrawny village at the crotch of the Portage and Red River trails began calling itself the “Town of Winnipeg,” it already possessed some features of what would become the first city in the Canadian west.1 [B]178

The General Quarterly Court, held this 21 st day of March, 1861 2 at which were present the following magistrates, viz.: William Mactavish Esqre., Governor of Assiniboia, President Dr. Bunn MD, Justice of Peace François Bruneau Esqre., do. do. Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do. Pascal Bréland Esqre., do. do. After the Jury were empanelled and sworn, the following case was brought on as follows:

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Angèlique Bourassa versus [blank] Jollibois [Case 200] Damages £6 for 4 Buffalo Cows and the Loss of a Blanket The Plaintiff stated her case as follows: “I was engaged to Defendant in the following manner. I was to take my own carts and oxen to bring home fresh meat for myself, and he agreed to kill four animals for me, and every fourth animal he killed was to be mine till I had my quantity (4 animals). And I was to cut up meat for him to make dried provisions. This was to be considered as an equivalent for the animals killed for me.” ¶ “The first run I got one animal, and at the second race, when he had killed five, I asked for my fourth.” But he said she must do his work first, and afterwards he would give her her due. “After this he [B]179 went off to run, and ordered me to pound meat, which I did not understand. And also told me to dress skins. He was angry when he returned because I had not pound[ed] the meat. He was going off again, and he told me to send my ox for to bring home meat. I demurred at this unless there were other oxen.” And he then forbid her to send her ox, as he might make a useless trip. “On his return from the hunt he was angry with me again, and complained that the eight animals he had killed would not make four toros.3 I told him I had not wasted the meat, nor had I stolen it, but he said I had wasted it. I asked a cow from him, but he said he would not give me one for 10/.” ¶ “Some days after he ordered me to send my ox for meat. It being late, the boy returned without the meat. The next morning he asked me if I was going for the heifer” he had killed for her. She replied that as she did not know where it was she would make a useless trip by searching for it unless he would pay her for the loss of her time, and her ox also. He then went and brought the heifer home and it lie [sic] there for a while; and he asked her if she would take it or not. “I took it rather than nothing.” ¶ “An axe had been lost on our way out, and on our return I took his mare and cart, and went in search of his axe. I cut across country, leading the mare, and I left the cart on a hill with my little childn. I found I had lost a blanket. I went on foot in search of the blanket, but did not find it. I returned with the mare, sometimes at a trot, sometimes at a walk. When I returned he discharged me. My bargain was £2, or animals [B]180 to that amount. The animals were to be at 5/ ea., and the balance en argent,4 or to pay for the animals at prix courant.”5 Compeared John McKeaver who, being duly sworn, deponed as follows: “I was present at the commencement of the agreement between the parties.

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The Defendt. promised to give her four animals at 10/, and if the animals were at 5/ the balance should be paid in money. And he told the Plaintiff she should always get the fourth animal. All of which is truth as I shall answer, &c., &c.” Compeared also Antoine Vermette who, being duly sworn, deponed as follows: “I was present when Pltf. asked Deft. for a cow, and he said in reply that she had not money enough to pay for it. The price of animals were in the plains 5/ ea.” Does not know whether she left the service on her own accord or [was] discharged by the Defendt. “I heard the Defendt. complain that the Pltf. had used his mare badly. All of which is truth, as I shall answer.” Compeared also Antoine Vandal who, being duly sworn, deponed as follows: “I heard the Defendt. discharge the Pltf. – both her and her son. The carts were loaded before he discharged her, and [it was] on the way home. All of which is truth, as I shall &c., &c.” Defence: Defendant stated that he had discharged the Pltf. for negligence of duty and ill-treatment to his mare. [B]181 Baptiste Primeau who, being duly sworn, deponed as follows: “I was present when the Defendt. told the Pltf. that if she took that heifer she would pay dearer for it. It was a small heifer of a year old. The Pltf. got two animals, her heifer being one. The Deft. offered me 12/6 to kill an animal for him. All which is truth, as I shall answer &c., &c.” Compeared also Pascal Parisienne who, being duly sworn, deponed as follows: “The both parties related to me the bargain they had made with each other, and in settling the Deft. told Pltf. that if a certain other woman got her animals for 5/ ea. he would give her the sum of £1, and if the price of animals were less than 10/ he would make up the difference.” Verdict for Pltf.: Costs:

10 days to pay:

£2.10.00 2.00.06 £4.10.06 1.10.06 Pd. in court £3.00.00

Joseph Langevin versus Stephen Green [Case 201] Debt

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Judgement given: That Defendant, on or before two months from this date, [to] pay the sum sought.6

Charles Morin versus St. Matt. Paullette [Case 202] Debt £12.00.00 Defendant agreed to take 2 carts belonging to Pltf. to the plain hunt, and was to give for the same 2 toros,7 1 bale of meat, and 3½ cows’ fresh meat – provided there were cattle8 in the plains. And he, the Defendt., was to get a cart horse for the same. This is the Pltf’s statement of the case. [B]182 Defendant in reply states that he took to the Pltf’s premises 2 bulls, 2 toros, 1 bale of meat, and asked for the horse, but was refused under the excuse of something more to be paid for it. The Jury being duly sworn, the case proceeded. Pierre Falcon,9 who being duly sworn, deponed as follows: “I was present at the bargain between the parties which was as follows: 3½ cows, 2 toros, one bale of dried meat, and if there were no cows to load the carts, in that case he might bring bulls’ meat. If his horse (the Deft’s) had been better he could have killed cows, although cows were not numerous. Did not hear that the provisions were to be delivered at the house, nor did I hear anything about the weight of the provisions to be given. All of which is truth, &c.” Defence: The Defendt. stated that: “The reason why I would not pay him is” that he did not give him 3½ cows, but only 2 very old bulls. Compeared Paul Paul who, being duly sworn, deponed as follows: “I was present at the bargain between these parties, and the agreement between them was for 2 toros at 120 lbs each, 1 bale of meat, and if there were no cows, to load with young bulls. All of which was truth, &c., &c.” Verdict for Pltf. Deft. to pay: Costs: 10 days grace [to pay]: W. R. Smith

£5.00.00 1.14.06 £6.14.06 Clerk of Court

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[B]183

The General Quarterly Court, held this 21 st day of May, 1861 10 at which were present the following magistrates, viz.: William Mactavish Esq., Governor of Assiniboia, President Dr. Bunn MD, Justice of Peace11 François Bruneau Esqre., do. do. Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do. Pascal Bréland Esqre., do. do.

The Queen versus Daniel O’Brian [Case 203] Felony12 [Note: This case was actually tried on 20 June 1860, not at this session of the court.]13 On the 19th day of the present month, the Sheriff empanelled a Grand Jury, who were duly sworn to try all bills [of indictment] to be presented to them at their present sitting, and after the charge had been given by the Acting Recorder (Dr. Bunn) the Bill of Indictment against Daniel O’Brian for felony was put in, and after due deliberation the Jury returned a True Bill against the said Daniel O’Brian. The Bill of Indictment having been read over to the said Daniel O’Brian, he pleaded Not Guilty.14 Joseph Fortescue,15 who being duly sworn, deponed as follows: “It was on the fifth day of Novr. I came up.16 And the next evening, about 10 o’clock, the Prisoner came into my room and asked me if I knew that my cash box was open. It appeared strange to me that it was open. I immediately counted and found a bundle of notes missing, and found that it consisted of 5/ HB Coy. Notes. [B]184 I had in the box £50 of 5/ notes, and one of them was missing – a specific bundle. I told Mr. J. McTavish that I suspected O’Brian, but said nothing [to anyone else], thinking that it might turn up during the winter.” ¶ “A short time after, we missed our draught board,17 and asked O’Brian if he had seen it. He denied having seen it. On or about the fifth of November, I missed a gold seal and silver chain, [and] asked O’Brian if he had seen it. He denied to having seen them. I saw them after when O’Brian’s

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premises were searched. I claimed the chain and seal now produced. They are mine, I swear.” ¶ “On the 31st of March we returned to our summer office, and removed our things from one office to the other. Just as we were moving, the sale shop money was brought in: £118 in a bundle [and another sum] of £6.05.00 or £6.15.00.18 I deposited [the money] in the cash box. Called one of the men to carry the box in. In carrying that box over, one end fell down. I immediately opened it and saw it safe. I opened the box immediately, and, after I got into the office, the money I replaced carefully. And the parcel of £118 was safe. Did not open the box after one o’clock.” ¶ “[At t]en minutes to 2 o’clk., I was preparing for dinner. The Prisoner came into my room with some clothes, and he then offered his services to me as attendant, which I declined. He was going round the office. After dinner, between 2 and 3 o’clock, [I] heard someone at the office, ran down and left my trousers on my bed – and to the best of my belief left the keys in the pocket of them. Before leaving the office, I tried the lock of the cash box, and it was safe.” ¶ “I went and played at ball, [B]185 and about 4 o’clk. O’Brian came and offered his services to sweep up the office. I said: ‘Certainly not.’ Mr. J. McTavish told me that O’Brian had been in the office, and advised me to look at my cash box. I went to my room, found my trousers hanging up, and no keys. Then I looked on my bed and found them covered by a paper.” ¶ ”I took the key to the office in my pocket and returned a little after seven o’clk. Went to the office and opened the box. I perceived that some person had deranged it – the money was [deranged] – as there was some bundles of notes of 5/ that were lying loose, and 5/ notes in bundles. When I lifted these notes, I perceived that the bundle of one pound notes – £118 – was away. The one pound notes and the 5/ notes were always kept separate, at different sides of the box. I counted the cash, and found a quantity missing. I swear that the bundle of £118, which I had put in on the morning of the 31st March, was missing at this time. The gold specie I missed at first, but on closer examination I found it among some wills.” ¶ “The following morning, I got out a search warrant [for O’Brian’s quarters], and found my gold seal and watch chain. The seal was at the bottom of the box – also a pocket handkerchief with my initials, a writing desk case, a chamber pot in use without my consent. On the Thursday after, [I] found my chess board again. Without my knowledge or consent it had been taken. I had asked O’Brian about it, and he denied all knowledge of it.”

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¶ “I have never been able to find this £118, and I am of course obliged to make it good. [Also missing is] a wooden box containing 5/ notes – 5 or 6 bundles – and there was several bags of coppers – 4 or 5 of them – [B]186 and one of silver. I am not sure whether I told Mr. McTavish or not. I did not miss anything at the time. I found the box open, and O’Brian was in possession the whole time during my absence. On the 31st March [I] told O’Brian to come for his pay, which was about a quarter to one o’clk., and it was about 7 o’clk. in the eveng. [when he came]. I counted the cash 31st of March.” Compeared also John McTavish who, being duly sworn, deponed as follows: “On the 5th of November I went down to Lower Fort Garry in company with Mr. Fortescue. Mr. Fortescue told me, the next day after, that O’Brian had told him that he had found the wooden cash box open. He also said he had been and examined it, and thought something – a parcel of 5/ notes amounting to £50 – [was missing]. It is true it is gone, and as O’Brian had the key of the office that day we both suspected him. Before this we had missed a chess board, and asked O’Brian if he had seen it, and he denied knowing anything about it. The one now before me is the one we missed.” ¶ “On the 31st of March, on going to dinner, I was at Mr. Fortescue’s room, and heard him then and there refuse the services of O’Brian. Immediately I went out and played ball, and at about 2 o’clk. saw the Prisoner come out of the office with a broom or something like it. He appeared decidedly to be coming out. I thought it strange to see him there, as I had heard Mr. Fortescue refuse his services. I went up into my room, and Mr. Fortescue came a little before tea. And I told him he had better look over [B]187 his cash box, as O’Brian had been in the office, and I had seen him leaving it. Mr. Fortescue appeared surprised, and in the evening I heard Mr. Fortescue in the office. And the next day, 1st April, after church, Mr. Fortescue told me: ‘You were right in your surmise. O’Brian has taken some money.’ All which is truth as I shall answer to God.” Compeared also James Duffin who, being duly sworn, deponed as follows: “The day we assisted in shifting the clerks to their summer quarters, I saw O’Brian in Mr. Fortescue’s room. I asked O’Brian what was up. He took away a pair of boots, and came back [with] another pair; and then took away a broom to sweep the office. This was about the men’s dinner hour. I did not see him go down or into the office. He was absent about three quarters of an hour. Governor McTavish asked me if I saw O’Brian in the office. I did not see him. O’Brian was busy about the premises, [and] I did not see any clothes with O’Brian. It was about 1 o’clock when O’Brian took the broom. All which is truth, as I shall answer to God, &c.”

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Compeared also Angus McDonald who, being duly sworn, deponed as follows: “On the 31st March before dinner, between 1 and 2 o’clock, saw O’Brian with some clothes going up the office stairs. Saw him come down again and go to barracks. When I came back from dinner, about 3 o’clk., I saw O’Brian in Mr. Fortescue’s room. A short time after [I] heard him say ‘I think I will go and give the office a sweep.’ Did not see him go into the office, but heard him singing in the [B]188 office, and he was making a noise as if he was driving nails. I went over to the shop, and when I came back O’Brian was in Mr. Fortescue’s room. About 4 o’clock when I came out I saw O’Brian on the stair head with a broom in his hand. I went away and saw him no more. I know it was O’Brian’s voice I heard, and only heard him knocking. All of which is truth, &c., &c.” Compeared also Ann Flett who, being duly sworn, deponed as follows: “On a Saturday, 31 March, [I] saw O’Brian come down from the gentlemen’s rooms with a broom and a fire shovel, going towards the office door. About half an hour after, he came round on the opposite side. He had a handkerchief and comforter in his hand, but no broom. Cannot tell if the handkerchief now shown is the one or not.” Thinks it was about 4 o’clock. He was carrying these things in a careless manner. [Does] not know if he went in the office. All of which is truth, &c., &c. Compeared also Mrs. Linklater who, being duly sworn, deponed as follows: “The day on which the gentlemen left their winter quarters, [I] saw O’Brian come round the side next the barracks. He had a comforter and handkf. in his hand. About 5 o’clock, I happened to be at the kitchen window, and had the handkerchief been red I might have distinguished it. All of which is truth, &c., &c.” Compeared also Colin Grant, who, being duly sworn, deponed as follows: “The Saturday we were putting the things over to summer [B]189 quarters, O’Brian went into Mr. Fortescue’s room, and he asked for a broom to go down to sweep the office. He got the broom, and was away three quarters of an hour. He came up and went away very quick. He was not more than two minutes, and then said he must go home and put on his coat.” Thinks it was after dinner. Heard some person sweeping, and saw O’Brian looking through Mr. Fortescue’s window. “All which is truth, &c., &c.” Compeared also Sergeant Betson who, being duly sworn, deponed as follows: “I searched O’Brian’s quarters on 2nd April. I found a silk handkerchief, now produced, and claimed by Mr. Fortescue. I saw a gold seal, silver chain. Seal was in a box, the chain tied to a [illegible]. Both claimed by Mr.

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Fortescue. Subsequently, a chess board [was] found in the Guard Room. The one now produced is the one and claimed by Mr. Fortescue.” ¶ Has known the Prisoner since 1856, and he was always trucking and trafficking. He might have had 5 guns, but knows he sold him a coat, seal skin, and cap. “I got three 5/ notes, and the rest in silver. He might have been in possession of property. I cannot swear that Mr. Fortescue was in the room. O’Brian was in the habit of bargaining for all things and anything. All of which is truth, &c., &c.” Compeared also Corporal McCaigne who, being duly sworn, deponed as follows: “I was one that was appointed to search O’Brian’s quarters. I found nothing at his quarters, but in the Guard Room, under the bed, found a chess board under a pillow, and Mr. Fortescue claimed it as his property. O’Brian had asked me to paint one for him. All which is truth, &c., &c.” [B]190 Compeared also Sergt. John Bulmer who, being duly sworn, deponed as follows: “I was at the search in O’Brian’s room. Found a silk pocket handkerchief – the one now produced. Mr. Fortescue claimed it as his property. The chess board now produced was also found in the room, and claimed by the said Mr. Fortescue as his property. I was present at three or four times of searching, and the above articles were found by me and in my presence. All of which is truth, as I shall answer &c., &c.” Compeared also Sergt. Wharburton who, being duly sworn, deponed as follows: “On the 31st March I was called by Sergt. McDonald, by the Captain’s order, to search O’Brian’s quarters in company with others. We found a considerable amount of money. On the 2nd of April I was again sent to search, and found a gold seal and a chamber pot, both claimed by Mr. Fortescue. Mrs. O’Brian said the seal was hers.” Knows that O’Brian is fond of bargaining and speculating. The seal was found in the till, and not at the bottom of the box. O’Brian dealt in all kind of articles. “All of which is truth, &c., &c.” Compeared also James Stanly who, being duly sworn, deponed as follows: “In October or November the Prisoner bought a watch from me for the sum of £7.05.00. He paid me with a one pound note and £6.05.00 in 5/ notes. All which is truth.” Compeared also John Troupe who, being duly sworn, deponed as follows: “I sold to O’Brian in the month of November a watch and wearing apparel to the amount of £9.00.00 which he paid me in 5/ Notes, 10 or 12, the remainder in £1 Notes. All which is truth, &c., &c., &c.”

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[B]191 Compeared also Baptiste Boucher who, being duly sworn, deponed as follows: “I sold O’Brian a mare, carriole, robes, whip, for £33, and he paid me £5 in one pound notes, the remainder in 5/ notes. It was in his own room. He called to his wife: ‘Bring me the bundle of money,’ which she did. The money was in one pound parcels. This was one or two weeks before Christmas. There was a great amount of money laid on the table. Cannot say how much remained after he paid me, but it looked a great deal. All which is truth, &c., &c.” Compeared also James Tait who, being duly sworn, deponed as follows: “I sold a cow in the month of September to the Prisoner. He gave me one pound, and in the month of October he paid me £6 in one pound notes. All of which is truth, &c., &c.” Compeared also Thomas Logan who, being duly sworn, deponed as follows: “I have had dealings with the Prisoner. Sold him 15 loads of hay, 3 buffalo robes, 15 bushls. barley. I bought a gun from him for £3. I received my payments from him in one pound notes, 5/ notes, and silver. We bargained in the month of August and July. All of which is truth, as I shall answer to God.” Defence: Michael Sweeney, who being duly sworn, deponed as follows: “About September, a man came to me and asked [me] to go to the Prisoner’s place: one Robert Ellirie. He gave a one pound [note] to Prison[er] to change, £20 into 5/ notes, and £2 for gold and silver. I saw this transaction in Prisoner’s own premises. All which is truth, as I shall answer to God.” [B]192 Compeared also Henry Lyther [?] who, being duly sworn, deponed as follows: “I was one morning at O’Brian’s quarters, and in playing with him I caught hold of him and threw him upon his bed, and in doing so I kicked against a chamber pot, on which he said ‘Mind, don’t break Mr. Fortescue’s pot.’ He also said that the desk cover was Mr. F’s. Also I think he, O’Brian, must have made some money, as he was always trafficking and trucking. All which is truth, as I shall answer, &c., &c.” Compeared also Stephen Green who, being duly sworn, deponed as follows: “Last fall, when I came here in October, I borrowed £10 from O’Brian, and I paid him back again in six weeks after: £8 in 5/ notes and 2 one pound notes. The money I got from O’Brian was 10 one pound notes. It was in December I paid him. All of which is truth, as I shall answer, &c., &c.”

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Compeared also William Greenway who, being duly sworn, deponed as follows: “On the 31st of March O’Brian came into the room where I stopped. He had some clothes on his arm which he said belonged to Mr. Fortescue. He took a seal and guard out of one of the pockets of the clothes he had brought in, and a handkerchief out of the coat pocket. All which is truth, &c., &c.” Compeared also Alan Taylor who, being duly sworn, deponed as follows: “The middle of the last winter, I asked O’Brian to play at draughts. He said he had no board, but would go over to the Company’s rooms and get the lend of one from Mr. Fortescue, and he brought the one now produced. I saw the watch guard, and asked him to lend it to me,” as [B]193 he [Deponent] was going out and would like to ‘cut the swell.’ “He refused me, and said the guard was not his, but belonged to Mr. Fortescue. All of which is truth, &c., &c.” Compeared also Thomas McKay who, being duly sworn, deponed as follows: “I have been in the habit of being in O’Brian’s room, and saw the draught board and desk case. He told me they belonged to Mr. Fortescue. He never appeared to have any objection to letting it be known that it was not his own. All which is truth, &c., &c.” Compeared also Robert Robinson who, being duly sworn, deponed as follows: “I was servant to Mr. Purse and Mr. Fortescue. Used to be frequently at Mr. Purse’s quarters, and they would play cards. And I have seen a great quantity of silver coin on the table, as the stakes they were playing for. All of which is truth, as I shall answer to God.” Verdict: Not Guilty19 Commentary To Red River residents and the Hudson’s Bay Company, this case was of interest primarily because of the unusual magnitude of the thefts involved,20 the need it demonstrated to develop better criminal investigation methods, and, perhaps, Daniel O’Brian’s blatancy.21 To history, it provides an excellent example of the criminal adjudication process in Assiniboia at the time.22 Because O’Brian was a member of the military garrison, he was taken upon arrest to his commanding officer. That gentleman decided, after a brief examination, that the matter should be “given over to the civil authorities.”23 A lengthy preliminary hearing followed, during which both O’Brian and his wife were separately examined. The hearing, held before Acting Recorder Bunn and Governor McTavish, extended over portions of several days. Conducted principally by a quite aggressive

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Dr Bunn, it was carried out in public, and was reported at length in the Nor’Wester. This meant, interestingly, that O’Brian, whom the evidentiary rules of the day prohibited from testifying in his own behalf at his trial, got to present his side of the story – and to have it made known to the public. On the other hand, newspaper readers were also able to observe Recorder Bunn disdainfully poke holes in O’Brian’s story. This process, which was not peculiar to Assiniboia, placed the person who would later be the accused’s judge in the role of chief investigator. After ruling that Mr and Mrs O’Brian should be committed for trial – he for theft, she for possession of stolen goods – the recorder and governor had to decide whether to grant bail. Daniel O’Brian was denied bail and kept behind bars pending trial. His wife was granted temporary freedom upon providing a bond of £50 herself and two £25 bonds from sureties. When two sergeants of the Royal Canadian Rifles stepped forward and offered to be sureties, Dr Bunn “expressed a disinclination to accept the bail of soldiers,” and civilian sureties had to be found. The day before the trial, a grand jury was summoned and asked to consider whether the evidence turned up by the investigation and preliminary hearing was sufficient to justify committing the O’Brians to trial. As Dr Bunn later explained to the petty jury, although this was a step not frequently taken in Assiniboia, it was considered to be an appropriate extra protection for these accused persons, inasmuch as Daniel O’Brian, as a soldier, faced the loss of pension rights over and above the judicially imposed punishment if he was convicted. It is possible, too, that this was a condition of the commanding officer’s surrender of jurisdiction over O’Brian to the court. It also insulated the company somewhat from potential charges of unfair prosecution in a case where its own interests were involved. This trial itself offers an excellent example of the common law’s presumption of innocence in criminal prosecutions, as well as this Red River jury’s appreciation of that principle. It is difficult to read the prosecution’s voluminous circumstantial evidence here and not conclude that O’Brian probably stole the money and other items. But probability was not – and is not – the standard of proof in a criminal case, although it would be in a civil one. Defence counsel James Ross, and no doubt Acting Recorder Bunn as well, would have told the jury that a criminal conviction required – as it still requires – proof of guilt “beyond a reasonable doubt.” Governor McTavish understood this too. When he reported the theft to London before the trial, he described the evidence as “unsatisfactory.”24 That evidence certainly placed O’Brian at the scene of both cash box thefts, with the opportunity to commit them, and showed him acting rather suspiciously the second time; it established that he had possession of some of Joseph Fortescue’s property; and it proved that he had spent quite a lot of money – in the denominations stolen – since the time of the first cash theft. On the other hand, he was never caught in the act of stealing, the money from the second cash theft was not found on his person or in his premises upon arrest (which defence cross-examination showed had occurred so swiftly as to make hiding the cash difficult), and he had plausible explanations for his possession of Fortescue’s goods (explanations which, interestingly, Fortescue was never

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recalled to refute) and for his expensive purchases (money allegedly made by reason of his constant “trucking and trafficking”). Even if the jury had not been aware that conviction would have much more severe consequences for Daniel O’Brian than for another person similarly charged, therefore, it could not be faulted, after considering James Ross’s doubtless eloquent address, for giving the accused the benefit of “reasonable doubt.”

William Lane versus Urbane Delorme 25 [Case 204] Damages: £27.10.00 [Ownership of Horse] William Lane stated that Mr. Delorme had come to him claiming a horse which he [Lane] had in charge belonging to the Honble. Hudson’s Bay Company. Compeared also James McKay who, being duly sworn, deponed as follows: “I know this horse. I bought him two years ago from Sain[t] Gris for £16 for the HB Coy. Cannot say that I knew the horse before purchasing it. [B]194 I purchased it partly on the testimony of Saint Gris, and partly on my own judgment. Two years ago the horse was not perfectly broke in. I thought him four years old, and paid for it. All which is truth, as I shall answer, &c., &c.” Compeared also John Ferguson who, being duly sworn, deponed as follows: “When I left Beaver Creek the horse in question was a foal one year old; and it is now five years since I first saw it after I came here with Sain[t] Gris. During the time the horse was here I saw it frequently. I cannot swear the horse sold is the same I saw at the Beaver Creek. The horse I saw at Beaver Creek was stamped here, after it came from Beaver Creek, with a roundish stamp. All which is truth, &c.” Compeared also Baptiste Neaud who, being duly sworn, deponed as follows: “I know the horse in question from one year old – five years since. For two years [I] saw it continually. I knew the horse when sold.” And swears the same horse was sold to James McKay. Saw the same horse in the possession of the Governor and his party. “All which is truth, as I shall answer, &c., &c.” Compeared also Gabriel Amlin who, being duly sworn, deponed as follows: “I know this horse in question since he was 6 months of age at Beaver Creek 6 years ago. And the same year saw it again here. I know the horse well, and have seen it continually, and two months is the longest interval that I did not see the horse. All which is truth, as I shall answer to God.”

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[B]195 Defence: Pierre Perreault, who being duly sworn, deponed as follows: “I knew the horse sold to James McKay. Cannot swear that the horse now in question is the horse sold to him. All which is truth, as I shall answer, &c., &c.” Compeared also Louis Braso who, being duly sworn, deponed as follows: Knows the horse taken from Mr. Lane’s. Knows him since he was 2 yrs. old: for 4 years, summer and winter. “I have seen it frequently, and during that space of time the longest interval between my seeing him was while he was at the plains with Mr. Delorme. In the 5th year of the horse’s age he went to the plains and got lost. The horse was gored in the left flank, a middling deep wound. He got the wound at 4-yr.-old, and from 4 yrs. till 6 I lost sight of him. Has a scar where he was wounded. Stamped on the right thigh with a round stamp. Saw it yesterday. All which is truth, as I shall answer, &c., &c.” Compeared also Moyses St. Dennis who, being duly sworn, deponed as follows: “I have known the horse in question for the 3 first years. I know him, and I trained him. The horse was gored at 2 yrs. old. I know the horse from some natural marks, also from some marks made by a saddle girth made by myself when breaking him in. He has a stamped mark on his left thigh. All which is truth, as I shall answer, &c., &c.” Compeared also Michell Trottier who, being duly sworn, deponed as follows: “I knew this horse till 3 yrs. old. It got a wound when 2 yrs. old. It was [B]196 gored in the flank. Saw him when 3 yrs. old. Did not see him since till this spring. I stamped the letter U upon his left shoulder. There is also a stamp marked on his thigh. All which is truth, &c., &c.” Compeared also Boniface L. Plant who, being duly sworn, deponed as follows: “I know the horse from a month old, saw it when a year old, saw it again at 2 yrs. old. At this time it got gored. The 3rd year it was occasionally harnessed. On rising 4 it could not go to the plains. It had got injured, and was lost at Mr. Thebeault’s. Never saw it again till in Mr. Lane’s possession, in good condition but a little lame. All which was truth, as I shall answer, &c., &c.” Urban Delorme stated that when stamping the foal that it was not stamped effectually. Saw it occasionally till it was 2 years old. “It is 2 yrs. this fall since I lost it.” Verdict: Sain[t] Gris’ horse26

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Damages: Cost of Suit:

£8.00.00 2.02.00 £10.02.00

Honble. Hudson’s Bay Coy. versus An Indian [Case 205] Debt pr. Advances: £9.11.00 [Defendant] acknowledged the debt but, not being able to give security for the above amount, was placed in prison. Willm. R. Smith

Clerk of Court Commentary

The anonymity that intensifies the poignancy of this little case was almost certainly caused by Court Clerk Smith. The company surely knew the name of anyone to whom it had advanced £9.11.00 – and it must have identified him to the constable who served the summons on him. It was not due to Smith’s oversight, however, that the term of the defendant’s imprisonment was not stated. Imprisonment for debt seems to have been for as long a period as the debt remained unpaid – or until the creditor got tired of paying for the debtor’s keep in prison. Since the company would have known that imprisoning this defendant undoubtedly meant throwing good money after bad, it would not have kept him in jail any longer than it thought useful to deter other potential contract breakers. [B]197

The General Quarterly Court, held this 15 th day of August, 1861 27 at which were present the following magistrates, viz.: William Mactavish Esqre., Govr. of Assiniboia, President28 François Bruneau Esqre., Justice of Peace Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do.29

The Public Interest versus Angus MacKay [Case 206] Breach of the Revenue Laws Collector Goulet stated that the Defendt. had committed an infringement of the revenue laws. Defendant denied that he had refused to pay all just demands.

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Roger Goulet, who being duly sworn, deponed as follows: “On the 7th of August I went to Mr. A. McKay on account of his having brought into the Settlement a quantity of merchandise, and for which he had exceeded the time allowed by law to present his manifest. When I saw [from] his invoice that it was not cleared by any other collector, I told him he was in a bad fix, as his goods had been in 8 days, and he had not exhibited his invoice to a collector.” The Defendant stated that it had not been intentional neglect, but altogether through causes over which he had no control. Verdict: Guilty. The Court sentenced the Defendant to be fined £5, with the usual import Duty and 10 days to pay it. [B]198

Andrew McDermot versus Joseph Ducharme [Case 207] Debt of £27.09.06 Constable J. Corrigal swore he had delivered the summons. Plaintiff swore that Defendant was due to him: The sum of: Costs:

£27.09.00 10 £27.19.00

This case went by default. Decision: four months’ grace to pay the amount.

Anneser Mansan 30 versus Auguste Harrison [Case 208] For a Claim on Land Plaintiff claimed the lot of land by priority of claim. Defendant also claimed it on the same plea, and prevented Plaintiff from occupying it. Alexander Porter, who being duly sworn, deponed as follows: “The lot of land now in question was in my possession before the Defendant. The whole point is about forty chains broad. This we (I and two others) took a claim upon. The land was not yet taken under the regulation of the Council of Assiniboia. But Defendant came there and run a line of 12 chains, and took it right in the centre of the point. I offered him 12 chains on the side of the above 12 chains, but he kept it. And afterwards the surveyor came

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and ran a line cutting off a lot of 12 chains on one side, which lot Defendant has kept for three years, and made no improvement on it. So I said that, as they kept the land in the middle, the best way [B]199 was to settle it. I offered the lot, but he refused it. All of which is truth, as I shall answer to God.” Compeared also Baptiste Morin who, being duly sworn, deponed as follows: “The first claim made to the land was made by the last witness by building a shantee on the land. And afterwards the Defendant brought a surveyor, who ran a line in the centre of the point. Racine was the first who did anything on the land. All which is truth, as I shall answer, &c., &c.” Defence: Pierrish Dumais, who being duly sworn, deponed as follows: “When I first settled at this place, and to prevent all disturbances, I accepted the lot of land on one side for the one in the centre. Porter gave the lot, and we accepted it. All of which is truth, as I shall answer, &c., &c.” Compeared also Roger Goulet 31 who, being duly sworn, deponed as follows: “In the year 1859, when I went to measure Racine’s claim of 36 chains frontage, out of which I measured 6 chains for Perish and 6 for A. Harrison, I saw the centre lot, and found some labour had been done there. I saw wood cut and laying about. All which is truth, as I shall answer to God.” Verdict of the Jury: Augustin Harrison loses his claim for the land, and each party to choose a person to value the buildings, or two persons if necessary, and Harrison to pay the expences of the Court. Expences: £1.18.00

Henry McKenny versus Martin Janson [Case 209] Debt of £22.10.00 – Costs 11/ = £23.01.00 It was settled [by the court or the parties?] that the Defendt. should pay the Plaintiff 20/ pr. month till the principal and interest of the above sum be paid.32 [B]200

Henry McKenny versus Edward Sharp [Case 210] Debt: £6.07.05 A promissory note for the above amount [was produced].

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Judgment: To pay the full amount: Costs: 5 months from this date grace to pay:

331

£6.07.05 11 £6.18.05

W. R. Smith

Clerk of Court

The General Quarterly Court, held on the 21 st day of November, 1861 33 at which were present the following magistrates, viz.: William Mactavish Esqre., Governor of Assiniboia, President François Bruneau Esqre., Justice of Peace Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do.

[The Queen versus Paulette Chartrain] [Case 211] [Manslaughter] The following Bill of Indictment was found by the Grand Jury on the 19th inst: “District of Assiniboia, Rupert’s Land, to wit: The Jurors of our Lady the Queen, upon their oath, present that Paulette Chartrain, late of Oak Point, Manitobah Lake, in Rupert’s Land, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the sixth day of August, in the twenty-fifth year of the reign of our sovereign Lady Victoria,34 with force and arms, at Oak Point, Manitobah Lake, in Rupert’s Land, in and upon one [B]201 John Monkman, in the peace of God and our said Lady the Queen then and there being, feloniously and willfully did make an assault; and that the said Paulette Chartrain, with a certain chisel, of the value of two shillings,35 which he, the said Paulette Chartrain, in his right hand then and there had and held, the said John Monkman, in and upon the left side of the belly, between the ninth and tenth ribs of him, the said John Monkman, then and here feloniously and willfully did strike and thrust, giving to the said John Monkman, then and there, with the chisel aforesaid, in and upon the said left side of the belly, between the ninth and tenth ribs of him, the said John Monkman. one mortal wound, of which said mortal wound the said John Monkman, from the said sixth day of August, in the year aforesaid, until the thirteenth day of the same month of August in the year aforesaid, in Rupert’s Land aforesaid, did languish, and languishing did live, on which

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said thirteenth day of August, in the year aforesaid, the said John Monkman of the said mortal wound died; and so the Jurors aforesaid upon their oath aforesaid, do say that the said Paulette Chartrain the said John Monkman, in manner and form aforesaid, feloniously and willfully did kill, against the peace of our Lady the Queen, her Crown and dignity.” After reading the above Bill of Indictment, the Prisoner was called upon to plead, and he pleaded Not Guilty. A mixed36 Jury, having been empanelled, were sworn to render a true verdict accord[ing] to the evidence which they should hear. [B]202 Abraham McLeod, who being duly sworn, deponed as follows:37 “I was present when John Monkman was wounded. When the Prisoner came, after he had been sent for by the Deceased, all the people at the place came into the house with him. I was sitting on a box, and I made room for the Prisoner on my right side on the same box on which I was sitting. When the Prisoner came in he carried his coat doubled up in the bend of his arm, and a plane in his hand. Did not see any chisel with him. I did not see the iron he stabbed Deceased with.” ¶ “When seated, Prisoner was spoken to by the Decd., who said: ‘Chartrain? You are always going to take me there about those kettles. Now take me there.’38 Then the Decd. related to Prisoner the language that his wife had used to him: ‘Your wife said a great deal to me in what she said. If she had been a man she should not have said so much evil to me. I did not see her alone, but Abraham heard her also. You are a man, Paulette, so say what you think.’” ¶ “While the Prisoner was sitting beside me, the Deceased gave him a push on the head, and when his head was pushed, or shoved, on one side, he, the Prisoner, got hold of a chisel off of the floor, and gave a blow with it to Decd. He struck the blow as he was in the act of straightening himself. They then seized each other, and when I saw the iron glittering in Paulette’s hand. I put a hand on each of their shoulders to separate them. I was on the wrong side of the Prisoner to wrest the chisel from out of his hand, but Chas. Monkman got to the other side just as the Prisoner was making another blow for the Decd. with the chisel; and he seized it below [B]203 Prisoner’s hand, and jumped towards the back of Prisoner. I then assisted him in wrenching it out of his hand.” ¶ “When I forced the iron from him, then the Decd. said: ‘I am killed, brother, I am stabbed.’ When the Prisoner heard these words he let go the

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Decd. As soon as they let go of each other I immediately got to Decd., and pulled up his shirt and examined the wound. I still had the iron in my hand while looking at his wound. The Decd. went to his bed and took his doublebarrel gun; and as soon as he got his gun he got out of the door, which was standing open. After the two had let go of each other the Prisoner ran off. I did not see him go off.” ¶ “When I saw Decd. with the gun, I threw the chisel on the top of the cupboard and ran after the Decd. There was a patch of grass about one hundred yards from the house, and the Prisoner was there. I was then just coming up with the Decd., and as soon as I came up with him I held him and the gun. Hy. Monkman had also come, and he assisted me to keep Decd. from using his gun. Decd. said: ‘Let me go, for he has killed me. Let me kill him too.’ I then tried to pacify him, and got him to be quiet.” ¶ “The iron now shown to me is the same that the Prisoner wounded the Decd. man with. It was whole at the time, but was broken by the Decd. after he had been wounded with it. The Decd. had sent for the Prisoner to come to him; and I was called in to be witness to the dispute about the salt pan.39 I did not see Prisoner drink, but Decd. had been drinking, but did not appear drunk. I saw – after – Baptte. Chartrain40 give some spirits to Decd., and soon drinking it. He commenced to suffer great pain. All which is truth, as I shall answer to God.” Compeared also Perrault Richards who, being duly sworn, deponed as follows: “I was present at the [B]204 house of the Decd. John Monkman when the quarrel began.” And the Witness corroborated the whole as repeated by last witness – with this exception: that the Decd. had sent for the Prisoner twice by his son, and the Prisoner had each time refused to come; and at the last he, the Decd., went for him and brought him into the house, when the dispute began, and ended as stated by the last witness. And further that he never heard the Prisoner threaten the life of John Monkman. “All which is truth, as I shall answer to God.” Compeared also Charles Monkman who, being duly sworn, deponed and corroborated the foregoing witnesses all through, and declared that it was all truth as he should answer to God. Compeared also Joseph Neeseepeet (an Indian) who, being duly sworn, deponed as follows: “I was at the house of the Prisoner when he returned from the Decd. Man’s house after the fight. When the Prisoner came in, he told me he had killed John Monkman. I asked him how he had killed him. Prisoner replied that he had stabbed him. I then asked again: ‘Did

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you kill him outright?’ and he said: ‘No, they are working with him.’ I asked: ‘Where did you stab him?’ He put his hand to his side and said: ‘In this part.’ He also told me that Decd. had sent twice for him, and he would not go – and at last he came himself. And I told Decd. to be quiet, as we were all of one family. I went to see the wounded man. I did not see either vial or bottle with Bapte. Chartrain.”41 When he came into Decd’’ house, “My wife told me that they [B]205 had been giving to Decd. a drink of rum. Bte. Chartrain met me outside the door of Prisoner’s house and said: ‘I do not understand what my brother said to me.’ All which is truth, &c., &c.” Compeared also John Schultz, Doctor of medicine and surgery, who, being duly sworn, deponed as follows: “I having received an order from Coroner C. J. Bird to attend at an inquest42 to be held on the body of the Deceased John Monkman on the 16th day of August curt. at the request of the Jury, I proceeded to a postmortem examination to ascertain whether or not the wound was the cause of death. To this end, on the third day after death, I opened the cavity of the abdomen and, having traced the wound, I have to report as follows: that the wound is on the left side, made apparently with a sharp instrument about three quarters of an inch in width, and the greatest thickness half an inch, which entering in a direction backwards and slightly downwards, passing through the tissues above, divided the cartilage of the ninth and tenth ribs, piercing in its course the peritoneum beneath, and entering the omentum, but apparently not through, as the intestines were uninjured. The edges of the wound internally presented an inflamed and somewhat gangrenous appearance, and no attempt at a healthy closure appears to have been made. I found in the cavity of the peritoneum a large amount of sero purulent fluid, and some adhesions (easily broken down with the knife) between the anterior surface of the omentum and the peritoneum. These characters, with the general appearance of the peritoneum, are the usual postmortem [B]206 appearances of peritonitis, and therefore I infer that death took place from this disease, which was caused in all probability by the wound before mentioned. All of which is truth, &c., &c.” Compeared also Donald McLean who, being duly sworn, deponed as follows: “I was servant to the Decd. man, and have heard the Decd. man say that the Prisoner and his son had taken away a salt pan to a distance of 12 miles beyond the place where he, Decd., had left them [sic], without his consent.” Has heard the Prisoner use threatening language towards the Decd. because he had taken the best pan; and [Prisoner] said he (the Decd.) ‘shall never have that pan, but will walk over his grave.’ “All which is truth, as I shall answer, &c., &c.”

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Compeared also Yellow Baptiste who, being duly sworn, deponed as follows: “I was in the service of the Decd. man, and was in the house when he was stabbed. That day he ordered me to put some whiskey into a bottle. I did so. He told me to fill it up, which I did. He was going to Prisoner’s house. He went, but soon returned, saying he was not at home. He then sent his son to fetch him. The boy returned and said the Prisoner would come as soon as he got the tools he was waiting for. The boy was sent the second time, and returned without the Prisoner. And then Decd. went himself and brought him. Soon after entering the house they (the Decd. & Prisoner) began to [B]207 dispute about the salt pans. Decd. said: ‘I will keep both pans.’ The Prisoner replied: ‘Well keep them both and be at peace.’ After a while I saw Decd. push the Prisoner. I then saw Prisoner strike Decd. with a chisel. Saw A. McLeod and others take the chisel out of his hand. I then saw Decd. take his gun to go and shoot the Prisoner. They prevented him, and took the gun from him. And then Decd. went to A. McLeod’s and got his wounds dressed. All which is truth, as I shall answer to God.” Compeared also Magdalene La Ronde who, being duly sworn, deponed as follows: “Having arrived at Oak Point, Manitobah Lake, on a Wednesday about three months since, I was informed by the wife of Peter Sinclair that the Prisoner had stabbed the Decd. man with a chisel. And, having to get some salt from him, I went to Prisoner’s house, and having there found him I said to him: ‘A great misfortune has happened to you.’ He replied: ‘Yes, but for a long time the Decd. has been quarreling with me.’ I then asked him if he thought he had given Decd. a mortal wound. He said he thought not, as an Indian who had been to see Decd. informed him that the wound did not bleed, and was not swollen. I then asked him how he had given the wound. He replied he had taken him by the throat and stabbed him, shewing how by an action of his hand. All which is truth, &c., &c.” Defence: Compeared also Julia Goulet who, being duly sworn, deponed as follows: “I know the Decd. man sent his son twice on the day of this affair for Prisoner, and the third time came himself. Saw Decd. trying to prevent the Prisoner from turning back, and I saw Prisoner go a long piece round to avoid [B]208 going to the Decd. man’s house. I never heard the Prisoner speaking ill of the Decd. man. All which is truth, &c., &c.” Compeared also Isabelle Chartraind [sic] who, being duly sworn, deponed as follows: “I was in the house when I heard a noise – some calling: ‘Come out.’ It was Decd. I told my brother, the Prisoner, to come away. Saw Decd. catch hold of Bte. Chartrain and he, Bte., said: ‘I did not come

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for to fight. I came to settle.’ Decd. tore his shirt, and after that Decd. went off with A. McLeod. All which is truth, as I shall answer to God.” Verdict: Guilty of manslaughter.43 Sentenced to 10 months’ imprisonment. Commentary Paulette Chartrain and his Oak Point neighbour John Monkman were both salt producers. According to the Nor’-Wester,44 the events that culminated in Monkman’s slow death began with Chartrain’s purchase of a new salt pan, or “kettle,” from itinerant Red River merchant Andrew McDermot. The purchase was on credit, or partial credit, and Chartrain was unable to meet the payment obligation when it fell due. McDermot accordingly repossessed the kettle and resold it to John Monkman – on paper. But Chartrain, although he had lost the right of ownership, retained possession of the kettle, and refused to surrender it to Monkman. Matters festered thereafter until Monkman decided to bring them to a head in the manner described in the evidence. The Nor’-Wester’s editors considered this case a “cause célèbre,” and lavished much attention upon both the trial and the events preceding it. In part, they explained, this was because of the novelty of such crimes in Rupert’s Land: “The absence of serious crime in Rupert’s Land has been remarkable, considering the extent of the country, the nature of its inhabitants, and the character of the government. The Indians are by no means reckless, heartless, bloodthirsty beings. There is an amount of sympathetic feeling and generosity which strangers are hardly prepared for ... [H]ow few murders or robberies throughout this vast region!”45 New Nor’-Wester co-editor James Ross, recently named sheriff of Assiniboia, and already keen about legal matters, was especially interested in the case – initially because of a difficult jurisdictional problem that it seemed to him to raise.46 The Council of Assiniboia had decreed long ago that the Municipal District of Assiniboia extended no farther than a 50 mile radius beyond the junction of the Red and Assiniboine Rivers.47 How, then, could an alleged offender living on the shore of Lake Manitoba be arrested by Red River authorities and brought to the General Quarterly Court for trial? The answer would be of very great interest to residents of Portage la Prairie, which was much closer to the Forks than Oak Point, but was still beyond the 50 mile limit. Portage settlers were seeking an extension of governmental services to their area. The Nor’-Wester suggested two possible solutions to the problem: (1) wait for the accused to wander into the jurisdiction of his own accord, as the article claimed the late Dr Bunn had done, in his shrieval capacity, on a previous occasion; or (2) have the summons countersigned by one of the HBC chief factors (of which Governor William McTavish was one), whose magisterial jurisdiction under the 1803 Canada Jurisdiction Act extended to all of Rupert’s Land.

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Red River’s Coroner Bird had not waited for that advice. He had no interest in such legal fine points. Bird simply dispatched Dr John Schultz to Oak Point to conduct an autopsy on Monkman’s body, and proceeded there himself to organize and conduct an inquest, which arrived at a conclusion of murder. Although laying hands on Chartrain could have proved difficult, it turned out not to be so. Ross sent two constables to Lake Manitoba with an arrest warrant, and the accused willingly agreed to accompany them back to the Forks for trial.48 This jurisdictional concern was misplaced in any event. The Assiniboia governor and council, appointed by the HBC under the authority of its charter, had responsibility over the entire reach of the British portion of the territory designated “Assiniboia” in the company’s 1811 grant to Lord Selkirk. The General Quarterly Court of Assiniboia was created by that council in 1835, several years before the 50-milewide Municipal District of Assiniboia was established in 1841; and the resolution which defined the Municipal District made no attempt to restrict the jurisdiction of the General Quarterly Court.49 The Nor’-Wester’s account of the Chartain trial comments on the constant need in the courts of Red River for the translation of testimony – not just between English and French but also between European and Aboriginal languages: A peculiarity of our court proceedings is that so much is done by means of interpreters. Scarcely a case arises in which the French and Indian languages are not essential mediums of communication between the Bench and the witnesses, or between the latter and the Jury. This prolongs the assize, and gives an air of clumsiness to the machinery, which is no doubt felt by those accustomed to hear only English in courts of justice. Still, beyond the delay and clumsiness, we believe there is no reason for complaint. Mr. James McKay Jun., who was official Indian Interpreter at the last Court, both for Cree and Salteaux, did his part admirably. His interpretation was, throughout the two days of the assize, wonderfully accurate and full, giving the utmost satisfaction to witnesses, jurors and magistrates.50 Sheriff James Ross was also on hand to handle translation to and from French, but his services were not required during the Chartrain trial because, as the newspaper also reported, “all the witnesses” in that trial “gave their testimony in Indian.”51 The outcome of this “cause célèbre” was a tribute to the ability of the General Quarterly Court of Assiniboia, when free from external pressures, to render substantial justice, even in potentially capital circumstances. Whether thanks to Governor McTavish’s charge to the jury (the new recorder not yet having arrived) or to the jury’s own wisdom, the verdict of manslaughter in lieu of murder was precisely what one would expect a modern court to render on similar evidence; and the sentence of ten months’ imprisonment, although short in modern terms, seems suitable to the circumstances of time and place. A final matter worthy of note is the usefulness of the newspaper accounts and commentaries as supplements to the official records of the General Court. Where,

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as here, the editors chose to report at length upon a case, their observations often explained what was puzzling, and occasionally corrected what was erroneous, in Court Clerk William Smith’s official versions. In this case, in fact, a comparison of the Nor’-Wester’s accounts and the official versions catches Smith in a lazy shortcut. The report in the court record of the testimony of some witnesses – McLeod and Schultz, for example – is an almost verbatim copy of the newspaper’s transcript of the evidence they previously gave to the inquest at Oak Point.

The Second day of the sessions, 22 nd Novr., 1861 The Queen versus Keeseeas & Neecheecoos [Case 212] Misdemeanour52 [Riot and Theft] The following Bill of Indictment having been placed before53 the Grand Jury, as follows: “District of Assiniboia, to wit: The Jurors of our Lady the Queen, upon their oath, present that: Keeseeas, late of Red River Settlement, Indian; Neetcheegoose,54 late of the same place, Indian; and divers other persons to the number of 30 and more [and] to the Jurors aforesaid as yet unknown, on the 16th day of September in the 25th year of the reign of our Sovereign Lady the now Queen,55 at Red River Settlement, in the District aforesaid, with force and arms, unlawfully, riotously, roisterously and tumultuously did assemble and gather together to disturb the peace of our said Lady [B]209 the Queen; and then and there being so assembled and gathered together, did then and there make a great noise, riot, tumult, and disturbance; and then and there unlawfully, riotously, roisterously and tumultuously remained and continued together, making such noise, riot, tumult and disturbance, for the space of an hour then next following, to the great terror and disturbance of the liege subjects of our said Lady the Queen then and thereabouts inhabiting, residing and being; in contempt of our Lady the Queen and her laws, and against the peace of our said Lady the Queen, her Crown and dignity.” “And the Jurors aforesaid, on their oath aforesaid, further present that the said Keeseeas, the said Neechegoose, together with divers other evil disposed persons to the number of 30 and more, as aforesaid, as yet unknown, on the day and year aforesaid, with force and arms, unlawfully, riotously, roisterously and tumultuously did assemble and gather together at the dwelling house of one Auguste Schubert, at the place aforesaid in the District aforesaid, to disturb the peace of our said Lady the Queen; and being

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so assembled and gathered together, with violence and threats to kill the cattle and take the property of the said Auguste Schubert, did then and there unlawfully demand and obtain from the said Auguste Schubert certain goods and chattels, to wit: ten gallons of whiskey, the property of the said Auguste Schubert, which said ten gallons of whiskey the said Auguste Schubert, being then and there in fear of the threats aforesaid of the said Keeseeas, Neecheegoose and others as aforesaid, did deliver up against his will to the said Keeseeas, Neechegoose and others as aforesaid; and which said whiskey the said Keeseeas, Neechegoose and others did unlawfully take and carry away, or caused to be taken and carried away, against the will and to the great damage of the said Auguste Schubert, to the evil example of all others, and against the peace of our Lady the Queen, her Crown and dignity.” A True Bill being returned, the Prisoners were placed at the bar, when, the Bill of Indictment having been read and interpreted to them, they both pleaded Not Guilty. [B]210 Auguste Schubert, who being duly sworn, deponed as follows: “That is the man (pointing Neecheegoose) who came to my place with the Jailer and asked me for recompense for the ill treatment56 I had given to an Indian. This was about a week before the disturbance. I told him to go to Mr. McTavish and complain if he had any proof of it. He said: ‘I have proof enough of it, and will soon make you pay.’ On the 16th of the month, on my return from the Petty Court, a number of Indians came in and demanded of me £50 (fifty pounds) for payment. I refused to give it. Then they demanded that I should give £3 per annum for the benefit of the man’s children. This I also refused, but agreed to give £3 in charity.” But they said they did not want charity, but payment; and that they must have [it] immediately or they would shoot his cattle. “And for fear of these threats, I gave them a keg of whiskey. After they got the keg they went off.57 There were in the house at one time upwards of 50 persons at the least, and I was afraid of such a large body of Indians in the state of excitement they appeared to be in. Cannot swear that he, Nechegoose, was the man that ordered the whiskey out of the house. All of which is truth, as I shall, &c., &c.” Compeared also Salomon Amlin who, being duly sworn, deponed as follows: “On the day of the Petty Court, I was in my vehicle at Mr. Gerald’s door, on the point of leaving for home, when I was requested to go over to Schubert’s house; as he was in trouble with a band of Indians. I went, and the first person I saw was the Prisoner Keeseeas, and [he] laid off a very long speech,58 the drift of which was that Schubert should make recompense for

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ill treatment he had given to an Indian last spring. Another Indian (Big Ears) spoke a speech of the same kind, and closed with the demand of recompense. Another Indian just spoke by saying he thought it but reasonable that he should be recompensed. Neechegoose [B]211 then got up and said the ill-treated man was his stepson, and that he had to maintain him during that time, and he thought that he, Schubert, should pay £50. I interpreted it to Schubert, who refused to pay this sum, and told the Indian to take him to court. They refused and said they must have it immediately; and told him to look at all those Indians – and that they were all soldiers to enforce payment.” ¶ “Then Schubert offered to pay £3 pr. anm. till the £50 was paid, in charity. This was also refused, and whiskey demanded – 10 galls.59 I told Schubert to go down to the cellar and give it. And then he, Schubert, delivered it, and called out: ‘I call on all persons that hear me to bear witness that I give this against my will.’ When Schubert gave the whiskey he laid across the cellar, and Neecheegoose looked into the cellar and saw a large cask. And he wanted to have it, but eventually took the smaller one of 10 gallons. I was the only interpreter between the Indians and Schubert. All which is truth, as I shall, &c., &c.” Compeared also George Turner who, being duly sworn, deponed and corroborated the preceding witnesses. Verdict: Guilty Sentence: Keeseeas: 2 weeks from this date Neecheegoose: 1 month do. do. do. Commentary The Nor’-Wester’s description of this case60 is considerably more informative than the official record. It is also rather more consistent with the newspaper’s assertion, three months previously, that “[t]he Indians are by no means reckless, heartless, bloodthirsty beings.”61 This instance of Indian vigilante justice was extraordinary; and it had been caused by unusual circumstances. Auguste Schubert, it appears, was a relatively recent arrival from the United States. Not long before the Native invasion of Schubert’s home, Keeseeas and some other local Indians had encountered compatriots from the Pembina area, who told them that, before coming to Red River, Schubert had beaten a Pembina Indian so severely that he was still unable to support himself. Keeseeas, a venerable Saulteau elder, considered this to be an intolerable situation, observing that “[t]he people of this Settlement never injure us.” He and his friends had accordingly resolved to demand that Schubert provide compensation to

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his victim. When they initially confronted him, however, Schubert denied responsibility, and challenged the Indians to take him to court. Rather than doing that, Keeseeas, Neecheecoos, and their “soldiers” descended upon Schubert’s home about a fortnight later in the manner described in the evidence. Both accused men spoke in their own defence, although only the statement of Keeseeas was reported. He seems to have raised three grounds of defence. First, he pleaded physical infirmity. Supporting himself with a walking stick, he claimed to be an old “blind man” – an assertion which was met by derisive laughter from the courtroom audience. Second, he alleged that he had only attended the invasion of Schubert’s home in the role of interpreter – a claim not easy to reconcile with Amlin’s having been called in to perform that function. Third, he stated, with no corroboration, that the course of action taken had been recommended by Andrew McDermot. Although the defence statements may have influenced the relatively minor sentences imposed – especially on Keeseeas – they did not stave off conviction. After a “clear and pithy” charge by Governor McTavish, the jury convicted both men. As they were being led away to the jail, Keeseeas was heard to remark that he would “never interpret again for such a crowd.” Neecheecoos “laughingly said that he brought his punishment on himself.” The immediately subsequent prosecution of Schubert for selling liquor to an Indian62 was very likely a retaliatory informer proceeding instigated by supporters of Keeseeas and Neecheecoos.

Public Interest versus Auguste Schubert 63 [Case 213] For Selling Beer to Indians Chequewaysee, an Indian, [was] sworn, and deponed as follows: “I heard that Schubert was wishing to buy a horse. I went to see him. He was not home. I told my errand to his wife. She told me to wait, which I did till a late hour. The next day, I was passing by and called, and saw Schubert,64 [B]212 and we talked about the horse, but made no bargain that time. I saw Bapte. Hupée, who told me that Schubert wished to see the horse I intended to sell, and I showed it to Bte. Hupée. He said he would sell it for me. This is all that passed, and I gave my horse to him to sell for me. I went to the back of Schubert’s premises, and Bte. gave me to drink both beer and whiskey. I wanted 10 qts. of strong whiskey and some money. I got the whiskey. It was given to me by Baptiste in the presence of Schubert. I called afterwards for some money, and was refused. All which is truth, &c.” Compeared also Joshua Parks who, being duly sworn, deponed as follows: “I was in Schubert’s house when this Indian came into the house and demanded £1 of Schubert, who told him that he had nothing to do with him, and that he had paid Baptte. Hupée. All which is truth, &c., &c.”

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Compeared also Anson Gerald who, being duly sworn, deponed as follows: “This Indian told me that he had sold the horse to Hupée, and that he was still due him one pound. All which is truth, &c., &c.” Verdict: Not Guilty Commentary Schubert wanted to buy Chequewaysee’s horse, but when the latter demanded both cash and liquor in payment, Schubert was loath to break the law directly. It was therefore agreed that the transaction would be conducted through a non-Indian middleman. Chequewaysee would sell the horse to Hupée for cash and liquor obtained from Schubert in the expectation of the horse being later “resold” to Schubert. As reported in the Nor’-Wester, the evidence indicated that this is ultimately what happened, although the cash payment was held up for a while (perhaps because Hupée considered it to be his agency fee), and Chequewaysee claimed to have been given a short measure of liquor. Given that the evidence strongly supported that scenario, the reader might wonder why Schubert was acquitted. Two factors were likely at play. First, the jury and the court may well have considered the vengeful nature of the prosecution distasteful, especially in light of the terrifying nature of the “home” invasion.65 Second, Dr Bunn’s charge probably pointed out, or the jury noticed by itself, that the evidence did not support the charge: that Schubert had sold “beer” to an Indian.

Mrs. Doolan versus Bapte. Caplette [Case 214] Debt of £11.00.00 Defendant acknowledged the debt. Decision of Bench: that the Defendant pay the sum of: £11.00.00: the sum sought, in 10 days, and66 13.00: costs of suit. £11.13.00

George Flett versus Wm. Whiter [Case 215(1)] [Taking of Wood – Sums Claimed:] Damages: Costs [of] former suit:67

£3.00.00 06.00 £3.06.00

Louison Gagnon [was] sworn, and deponed as follows: “I had 110 pieces of timber from 20 to 25 ft. long, more or less, [B]213 out of which I sold

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40 pieces to G. Flett. But the whole of these pieces of timber were taken, except 30, by the Defendant and others. I went up with my sister to see the wood. It is now near 2 years since the wood was cut. I am sure the wood was cut by my brother-in-law, and the 30 pieces that were left after the rest were taken away were the refuse of the 110 pieces. All of which is truth, as I shall answer to God.” Compeared also Louison Gagnon, Senr. who, being duly sworn, deponed as follows: “I know that my son got this wood, and an ox, from my son-in-law Bouchanan to keep his wife for two years. All which is truth, as I shall, &c., &c.” Compeared also Eliza Bouchanan who, being duly sworn, deponed as follows: “I know that my husband cut and hauled the wood to the bank.” Does not know who has taken it away. “All which is truth, as I shall answer, &c., &c.” Defence: David Taylor, who being duly sworn, deponed as follows: “The length of the timber is stated above – its dimensions. It was from 10 to 30 ft., and from 6, 7 and 8 in. thick. I have heard the Defendant say we might take it. The Defendant had 1 piece of 30 ft. long, and 3 of 20 ft. All which is truth.” Verdict for Plaintiff as follows: 3 pieces of timber 20 ft. Former costs: £0.06.00 Present “ : £2.00.06 £2.06.0668 Costs to be paid tomorrow [B]214

The General Quarterly Court, held this 20 th day of February, 1862 69 at which were present the following magistrates, viz.: William Mactavish Esqre., Governor of Assiniboia, President François Bruneau Esqre., Justice of Peace Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do.

Charles Garret versus Anson R. Gerald [Case 215(2)] Debt £6.00.00 [Promissory Note]

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J. M. House, who being duly sworn, deponed as follows: “This note was given to me by Messrs. Brown and Gerald for 6 galls. of alcohol about the month of March in the year 1860. Mr. Gerald wrote the note. At the time he wrote it and he said ‘If Brown does not pay this I will.’ This note has never been paid, either by Brown or Gerald. I know C. Eaton. I bought an ox of him. I have asked frequently for the payment, but never got paid by Gerald. He flatly refused. All which is truth, &c., &c.” Compeared also Anson R. Gerald who, being duly sworn, deponed as follows: “I was once in partnership with Brown – during the years 1857, 58, 59, and 60 – and dissolved partnership with Brown in June or July 60. C. Eaton is still due to me. No-one has ever asked me payment of the said note. I cannot say how long I held the affidavit about this note. I swear distinctly that Mr. House told me that I was relieved from the note. All which is truth, &c., &c.” Compeared also Charles Garret who, being duly sworn, deponed: “This note was left with me by Mr. House. I presented for payment to Mr. Gerald. I took the note as good [B]215 pay. All which is truth, &c., &c.” Compeared also Auguste Schubert, sworn, [who deponed] that he had heard Gerald warn him, Mr. Garret, about this note. All which [sentence not completed]. Compeared also Albert Sargent who, being duly sworn, deponed as follows: “I heard Mr. House say that he had sent down to Mr. Garret the note. I brought down the letter. All which is, &c.” Compeared also Duncan McDougal, [who was] sworn, and deponed as follows: “Mr. House and Mr. Gerald were crossing70 one day, and the former said to the latter: ‘What are you going to do about that note?’ Gerald replied: ‘Good God, that note has been paid before. I shall not pay it.’ Mr. House then said he should employ Mr. Garret to look after it. All which is truth, as I shall answer to God.” Verdict: The bill is good to the holder for Costs:

£6.00.00 1.11.00 £7.11.00

Commentary A promissory note is a negotiable instrument, which means that it may be transferred for value to a person other than the original payee who is not aware of any

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defect in the payee’s rights to the instrument. In this case, it appears that the payee – House – negotiated the note to Garret, no doubt at a discount, for collection purposes. Sargent seems to have carried the endorsed note in a letter from House to collection agent Garret. Gerald’s defence – that he had already paid the amount due under the note – appears to have been based on a payment he made to one C. Eaton, allegedly either on behalf of House or on the strength of some transfer or pledge of the note to Eaton in connection with House’s purchase of an ox from Eaton. The nature of that murky transaction between House and Eaton was probably the subject of the “affidavit about this note” that Gerald says he held for a period of time before presumably destroying it. However, even if he had preserved the affidavit, and it had constituted a valid defence against House, Gerald would have had no defence against Garret, who, as a “holder in due course” (a transferee for value of a negotiable instrument without knowledge of any defect in the transferor’s rights), was absolutely entitled to payment of the note’s face value. It will be noticed that Garret was careful to assert in his evidence that he “took the note as good pay.” It is interesting to observe, by the way, that the former practice of denying the plaintiff and defendant the right to give sworn testimony, which had been softening for quite some time past, was altogether abandoned at this point.

Robert Tait versus Joseph Whiteway [Case 216] [Debt] This case was Settled: That the Plaintiff shall pay £10 and expences of the Court, £5 paid down this day, the balance to be paid in three months. Costs: 12/0, Debt £5, total Debt remaining: £5.12.00

J. B. Nash versus Josh. Whiteway [Case 217] $35 or £7.00.00 Sterlg.71 [For Promissory Note and Detention of Gun] Defendant was sworn, and deponed as follows: “The note now handed me, I cannot swear that the signature is mine. It may be so, it may not. Nash got a gun of mine from a person whom I told to give it to him. He got the gun, and has given it to [B]216 another without my permission. I am sure I was at the US in the year 1857. All which is truth, &c., &c.” Compeared also John J. Setter who, being duly sworn, deponed as follows: “I know that Nash had the gun, and saw the gun given to Louis Pruden after he, L. Pruden, paid him $1.50. I heard Nash72 say that the gun [was]

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Joseph Whiteway’s. In 1856 I was present when Louis Pruden asked for the gun. All which was truth, &c., &c.” Verdict: Judgment of the Jury that Mr. Nash be paid £7.00.00 for his ox and no interest. Offset: on paying L. Pruden $1.75 [sic], he may claim his gun. Commentary What seems to have happened in this very poorly reported case is that Nash sold Whiteway an ox for £7, or $35.00, payment having been made by a promissory note for that amount. It may have been at the same time, and as a part of the same transaction, that Whiteway lent Nash a gun. Later, not having been paid on the promissory note, Nash sold the gun to Pruden. Now Nash appears before the court, presumably presenting the note and making an unsworn statement; and Whiteway responds, under oath, saying that he can’t confirm the signature on the note, and wants his gun returned. The jury awards Nash his claim on the note, and rules that Whiteway may have his gun back, provided that he pays Pruden what he paid for it.

Peter Henderson versus Philip Harper [Case 218] Damages £8.00.00 [Detention of Mare]73 George Mor wick, who being duly sworn, deponed as follows: “The Defendant asked me to assist him to catch a mare. I asked whose mare it was, and he said it was G. Morison’s; and he had bought it from one of the McKays, and that he was going to break her in. I am sure that the mare I assisted to catch is the one I saw this morning. She was fat then, but now she is poor. All which is truth, &c., &c.” Compeared also Elizabeth Donald [who], being duly sworn, deponed as follows: “Philip came to my place and asked me to lend him the skiff to cross74 two mares: one his own and the other he called Morison’s mare. And he crossed them. He was riding on the one called Morison’s, and his brother riding on Philip’s mare. One ear was cut, and had not healed. The Sunday after the mare had been crossing the river she was still wet. All this is truth, &c., &c.” [B]217 Compeared also Thomas Omand who, being sworn, deponed as follows: “On the second day of August, [I] saw Philip Harper, who said he was going to catch Morison’s mare. Did not see the mare again. It was

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changed. I think the mare was worth £12 then. She is [now] worth more than £6, perhaps 7 or 8 £. She had been much injured with the saddle.” Defence: George Ballendine, being duly sworn, deponed as follows: “I never saw this animal at Harper’s place. I know nothing of the mare in question. All, &c., &c.” Compeared also John Harper [who], being duly sworn, deponed as follows: “I have never seen any other mare with my brother but his own. I helped my brother to cross his mare at George Donald’s bank. We had only one mare at hay time. He never had any other that I know of. We asked for the skiff to cross. I do not know what horse my brother rode at the hay. I was not at the hay. He did not take his mare every day to the hay. All which is truth.” Verdict: Damages: Costs: 10 days to pay:

£3.00.00 £2.01.06 £5.01.06

John Moyses versus Vital Turcott [Case 219] This was a case for a Buffalo Calf The owner having died, and the only property he had left was this buffalo calf, which the deceased Doctor Bunn had advised the person where the man died (Auguste Schubert) to dispose of it, and bury the body of the Deceased. And as he [Schubert] had kept the Deceased three weeks and five days sick at his house, what with the burial expenses &c., he thought he would be but poorly paid. Another party claimed it, saying it was sold to them for two half-crowns.75 [B]218 After hearing a number of witnesses on both sides,76 the Jury returned the following verdict: Verdict for Defendant: Costs 18/6. W. R. Smith

Clerk of Court

The General Quarterly Court held on the 20 th day of May, 1862 77 at which the following magistrates were present:

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William Mactavish Esquire, Govr. of Assiniboia, President François Bruneau Esquire., Justice of Peace Robert McBeath Esquire., do. do. Thomas Sinclair Esquire., do. do.

James Spence versus Wm. Simeson [Case 220] Damages, laid at £120.00.00, for a Mare in possession of Defendant and claimed by Plaintiff as his property A Jury being sworn, Wm. Denison, who being duly sworn, deponed as follows: “I remember Plaintiff’s mare before she went off. I know she was cut by the wolves in the side – on the left side behind the girth. Cut in the thigh. Chestnut colour. White face, inclining to the right side, turning off at the nose. The last time I saw her she was then one year or under in age – when cut. To the best of my opinion, the mare I saw last winter is the same that I saw wounded. I heard Simeson say that although I should gain it in the Court I should never have the satisfaction of putting my hand on her. The wound was not so long as my hand.” Does not know how deep. “Cannot say what Simeson meant [B]219 when he said: ‘I should not put my hands on her.’ All which is truth, as I shall answer, &c., &c.” Compeared also Alexr. Cammeron who, being duly sworn, deponed as follows: “I heard Denison say the mare had been kept two years, and then turned out for a breeding mare. And that Clouston told me that Simeson had Spence’s mare, and that Friezié had Simeson’s mare. I noticed,78 once when I was at Plaintiff’s house, that the lips of the mare were white. All which is truth, &c., &c.” Compeared also Wm. Clouston who, being duly sworn, deponed as follows: “I remember this mare from a colt since 9 or 10 years. She had some white feet, some white hairs mixed with her tail. A light blond. I remember the foal being wounded by the wolves on the side and on the thigh,” but does not recollect the particular side, either right or left. “From the appearance of the mare when a foal, I think this mare is the property of Spence. But this is only opinion, and I do not wish to swear that it is actually his mare. All of which is truth, &c., &c.” Compared also Oliver Gowler who, being duly sworn, deponed as follows: “One day the Plaintiff told me he was coming up my way about a mare he had lost. And the marks he gave me were these: colour, a light blond;

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white face; one white foot; and had been bitten by wolves in the thigh and side. The next day Spence came up and got me and Denison to examine Simeson’s mare, this being the mare he suspected was his. We went to the stable to see the mare, and the marks of the wound were not conspicuous. Mr. Spence shaved the mare, and after that operation I examined the [missing word]; and yet I cannot swear the wounds were made by a wolf. I think the marks of the wounds are [B]220 as large as stated by Plaintiff. All which is truth, &c.” Compeared also Neil Henderson, [who was] sworn, and deponed as follows: “In the year 1850 I called at Spence’s, and he said he had a foal cut by wolves. The foal had white face, 1 white foot, [and was] of a blond colour. I am almost sure that the marks will appear yet. The wound on her side was taken out as large as the mouth of a wine glass. Saw the colt several times the year after. I never saw her since Septr. 1851, till last winter – after I had heard Spence say that he had heard of his mare. Spence asked me if I remembered the marks. I told him yes, and we went up and examined the mare. I knew it to be Spence’s mare. All this is truth, &c., &c.” Compeared also Js. Spence, the Plaintiff, who, being duly sworn, deponed as follows: “I had that mare in the year 1850. I lost her, and employed C. Stodgall to find it. Never saw the mare again, to my knowledge, at my place. Cannot swear that it had never been at my house, but I never saw or took notice of its being there. It may have been brought to my stable by Defendt. – cannot say. All which is truth, &c., &c.” Compeared also James Inkster Senr. who, being duly sworn, deponed as follows: “About 8 yrs. ago, I kept this mare for 2 months while Defendt. was servant to Mr. Logan. She is the same mare that I had then in my care. Defendt. told me he had brought her from Beaver Creek. All which is truth, &c., &c.” Compeared also James Inkster Junr., who corroborated his father, the preceding witness, in all his father stated concerning the mare brought to their place the year 1854 by Deft. And swears this to be the same mare they kept about 2 months. All truth, &c. [B]221 Compeared also Henry Smith who, being duly sworn, deponed as follows: “I was at Beaver Creek when this mare was foaled. Two or 3 weeks after [she] was foaled, bad weather came on – cold & snow – and Defendt. asked me to let the foal remain in my house, as my house was large. I allowed him. That foal, to the best of my belief, is the mare now in dispute. It had the white face, and one foot white above the fetlock joint. I cannot swear it

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is the mare, but her age, colour and marks are the same. All which is truth, as I shall answer, &c., &c.” Compeared also François Poitras who, being duly sworn, deponed as follows: “I brought the foal here to the Fort, and after [it was] about 2 years old I have seen the mare every year, except one year did not see her, but I still think it is the same foal I saw. I noticed the white face, white foot, white lip. The white leg was halfway up the leg. All which is truth, as I shall answer, &c., &c.” Compeared also Louis Changrée who, being duly sworn, deponed as follows: “I was at Beaver Creek when the mare was foaled. Her marks were: white hind leg, white face narrowing to the nostrils. I saw this mare three years ago. I think it the same, but cannot swear. It is 9 years since she came to this Settlement. All which is truth, &c., &c.” Compeared also Joseph Lambert who, being duly sworn, deponed that: “The mare was with Simeson, with whom he was working. The same mare as I saw with him 8 years ago. I have seen her every year since, except the year she was lost. It is only 10 yrs. old now. All which is truth, as I shall, &c., &c.” Compared also Alexr. Cameron [who], being duly sworn, deponed that he had known the mare 6 yrs. “I heard Spence give the marks as bite on the tail & girth on the left side, 2 white feet (hind) legs. Neil Henderson described a mark also in the leg. All is truth.” [B]222 Compeared also Baptiste Braconnier who, being duly sworn, deponed as follows: “I was at the Plaintf’s when the Defendant came to examine the mare. He described all her marks before seeing her. His marks were these: a bite on the side, another bite on the thigh, and a little white on the tail, and two white hind legs. None of these marks corresponded to the mare. She has only one white hind leg. All which is truth, as I shall answer to God.” Verdict: for Defendant Costs: £3.01.06

J. M. House versus Joseph Rollette 79 [Case 221] Debt: £13.14.00 The above Debt Defendt. acknowledged to be quite correct, but pleaded an offset80 of £16.02.03.

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Joseph Langevin, being duly sworn, deponed as follows: “In the bad weather in November I came in compy. with Plaintf. We were at Park River, and I know that Mr. House sent to Defendt. for assistance, and it required 4 days to come to Pembina. I hired a team and paid 5/ pr. diem. I would, sooner than have left my goods, have paid 10/ per diem. I do not know how long they were off. I know Mr. House got in his goods by the assistance of other teams, and that he wrote down for people to bring up teams. All which is truth, &c., &c.” Compeared also Joseph Rolette [who], being sworn, deponed as follows: “I sold three cross foxes. I did not give one in a present to Mrs. House. I was offered the same price by Mr. Burdock, and McKay. All which is truth, &c.” Compeared also Jean Magher, being duly sworn, deponed that he came to Pembina and told Mr. Rollette [B]223 that he ought to send provisions &c. out to the people (ie. Mr. House). Mr. Rollette said he would not send out under 20/ pr. diem. I said I would not send for £2 pr. diem, as the risk was great to man and beast. Verdict: that Defendant’s offset be paid in full Balce. of Debt – £2.07.08 – to the Defendant

John Tait versus J. Rickards [Case 222] Damages for a Mare – £14.00.00 Plaintiff stated that he had lent his mare to the Defendant, and that he had kept it eleven days and returned it sick, and at last died; and that he had raised this suit to recover the sum of £12 [sic], being the value of said mare. A Jury [was] sworn. George Mulligan, sworn, deponed as follows: “I was out looking for horses on a Sunday evening last fall. It was the same Sunday that the mare came home. I told Plaintiff that his mare was staggering, and that she was down. I rose her up. I saw this mare before she went off. She was well then. When I saw [her] after she came back, she looked bad. Her back was running, and in a bad state. All which is truth, as I shall answer to God.” Compeared also François Lallmond, who, being duly sworn, deponed as follows: “I think it was near 19th October last fall I saw this mare with a

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large scab on her back. It appeared to have been caused by the saddle. From the appearance of the mare she looked sick. I think she was worth about £7.10.00. She was 14 years old. All which is truth, as I shall answer, &c., &c.” [B]224 Compeared also James Hallett who, being duly sworn, deponed as follows: “About the middle of last October A. Bourk asked me to go and see this mare. We went, and I saw the back of her was very bad. I had seen her the month before in good health, and sound back, and then I would not have sold it below £10. The last time I saw her I told Pltf. that his mare was sick. All which was truth, &c., &c.” Compeared also François Lallmande who, being duly sworn, deponed that he saw the mare a day or two before she started for the lake, and assisted to catch her. She was wild – the foal was dull. All which is truth, &c.” Defence: Charles Stotgale who, being duly sworn, deponed as follows: “I was in company with this mare, and perceived that she did not feed well, and I thought she had the lampas [sic]. Looked at the mouth, but it was not the case. The colt looked sickly. Did not notice the mare the next day. Saw her afterwards. She did not appear better, nor worse. He, Defendt. rode the mare, and on the second day from the lake the Defendt. saw the back was sore, and galled with the saddle, but no scab. We left the mare near home, and I told Defendt. to inform the Pltf. where he had left his mare. I value the mare at £7.00.00. All which is truth, &c., &c.” Defendant stated that the party had oxen and carts, and he followed the oxen. We travelled very slow in coming back. I perceived her back sore. This was at Shoal Lake. I left her at Colony Creek, and 8 days after the Defendt. [sic: Plaintiff] told me I had killed his mare.” Verdict for Plaintiff: Costs: 10 days grace – Total:

£6.00.00 Damages 2.06.00 £8.06.00

[B]225

The second day’s sittings, 21 st day of May, 1862 81 Vital Turcotte versus Joseph Burassa [Case 223] Damages: £13.10.00 for a Mare Lost

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Joseph Hogue, who being duly sworn, deponed as follows: “I believe that the mare in question was lost by the negligence. The Plaintf. left his carts in charge of Defendt. and his, Pltf’s, son; and he told him if they travelled in the night to be sure to give the mare to the women to lead. But the next day after the mare was missing. And the morning after Deft. went in search of her, but came home in the evening without her. I heard Plaintf. say to Deft. that he depended more on him than he did on the Indians. The mare was not sick – she looked well. She was worth about £10. I did not see Deft. leave the carts.” Does not know if the mare went off while the Defendt. was repairing the cart. “I think the former conduct of the Deft., taken with the loss of the mare, is reason sufficient to make me believe that through negligence the mare was lost.” [Witness] did not hear Pltf. forbid him to ride in the carts, and [said] that he did not see the Deft. ride in the carts. Saw the Deft. once or twice go ashooting, and thus leaving the carts. “I think the mare ought to have been tied to save trouble. The other man was a willing man, but slow. All which is truth, &c., &c.” Compeared also Baptiste Turcotte who, being duly sworn, deponed as follows: “When my father went off he told Deft. that he reposed all confidence in him – much more than the Indian. My father also requested me to have an eye to the carts. The second day after, I perceived that one cart was broken, and I recommended Deft. to proceed slowly. That night I missed [the mare], and asked Deft. where she was. He said he did not know. The next morning I sent [B]226 him to look for her. He returned without her. I then went, and was two days searching, but did not find her. I have seen the Deft. lying in the cart, but cannot say he was sleeping. I told him, after the cart was mended, to [look] out sharp, or the mare would leave him, and I pointed out to him where the mare was. I would not have sold the mare under £10.00.00. All which is truth, &c., &c.” Compared also Jenevieve Bremner who, being duly sworn, deponed as follows: “When we were left in charge of the son, the second day after the cart broke, we went on till we encamped at Lac du Roche, where we lost the mare. The man arrived about midnight – they went on all day. It was on account, in my opinion, of the cart breaking that the mare was lost. I was one of two women who were engaged to the Pltf. I saw the mare behind the carts when the cart was broke. I have no ill feeling towards Pltf. I think there was no negligence by the Deft. He always appeared to do his duty. I heard Pltf. say to Deft. that he was always doing contrary to his orders [and that] he would therefore detain a part of his wages for the same. All which is truth, as I shall answer to God.” Verdict for Plaintiff:

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Damages: Costs: 10 days grace:

£2.00.00 2.01.06 £4.01.06

Public Interest versus John Favel [Case 224] For Selling Liquor to Indians Pleaded Not Guilty Baptiste Assiniboine [was] sworn according to Indian custom, and deponed as follows: “The last time I saw this man was on Monday the 5 of May at [B]227 the Fort, when he told me he had come to buy ammunition. I told him I had some in my tent, and that I would sell it to him. I went out, and was joined soon after by John Favel. La Roche and Vivier. And an Indian joined us in my tent, and the Accused and the others came in. And he (the Accused) immediately took out of his pocket a bottle of rum, and placed it between me and him. After I had taken a dram and given to each of the others, and after he had given me the dram and helped the others, I and another Indian drank up the remainder between us. When I started to come to the Fort, I found La Roche at the Fort. Boxer gave me a glass of rum. Whose rum it was I cannot say. We went out of the Fort and sat down. All this is truth.” Compeared also Apistain, an Indian, who being duly sworn in the Indians’ fashion, [deponed]: “I saw the Accused in an Indian tent with rum. Does not recollect the particular day, but it was the time the Indian was killed – the same day.82 The Accused was at the Fort. An Indian came to me and told me to come to him. I saw the Accused give some liquor to an Indian. Assiniboine said: ‘I have some ammunition.’ This man (Favel) said: ‘I will buy liquor.’ Then Baptiste Assiniboine, after this man went for the rum, said to me: ‘Come to my tent and drink rum.’ All of which is truth, &c., &c.” Asseweepenase (or Boxer), who being sworn in the Indian manner, deponed as follows: ”I know the Accused, and [say] that he gave me liquor. We gave him the money to buy rum. He went to the shop and bought it, and gave it to me. All which is truth, &c., &c.” Compeared also Boxer’s wife [who], sworn [in the] Indian manner, deponed: [B]228 “The day the Indian was stabbed, my husband gave me a bottle of rum. All which is truth, &c., &c.” Compeared also, for the Defence:

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Baptiste Assiniboine, recalled, who swore that he did not see the Accused give to the Indians any rum. Joseph Vivier, who being duly sworn, deponed that during the whole time he was at or with the Indians the Accused was not there. “He only came to me to call me home. When he came to me, he said Mr. Bannatyne wanted me, and then went off. All which is truth, &c., &c.” Verdict: Guilty on all the counts: Fine £20.

Public Interest versus Charles Bouvette [Case 225] For Giving Rum to Indians Asseweepenase (or Boxer) [was] sworn, and deponed: “I know the man now before me. He bought rum for me. I had not yet tasted rum that day till I got it from this man, who bought it for me. And when he gave me the rum he said that he had put in a little money, and that I must give him a little to drink.” Verdict: Guilty – Fine £10. W. R. Smith

Clerk of Court [B]229

The General Quarterly Court, held on the 21 st day of August, 1862 83 at which were present the following magistrates, viz.: John Black Esquire, Recorder of Assiniboia84 François Bruneau, Justice of Peace Robert McBeath, do. do.85

Donald Bannerman versus William Sinclair [Case 226] £20.09.06 Debt Plaintiff stated that he had lent the sum of £25 to Defendant. “I expressed a wish to auction some goods to Mr. W. Sinclair, which he said he would manage for me.86 And I of course expected to receive the amount of said goods in money. We have had a good deal of business for a long time going on, and I sent down the goods which I wished him to dispose of. But there has been no settlement in full for all our business transactions, and as I have

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continually been put off, I have been obliged to raise this suit for the sum of £20.09.06 due to me for the goods and the balance of a former acct.” Defendant denied the amount of the sum sought. He acknowledged that he was due to Plaintiff £6 only. And as for the goods he had sent down, [he said] he had never wanted them for his own purposes, and was only acting as agent for the Plaintiff, to sell them for him, and had taken a deal of trouble trying to dispose of them. He therefore [B]230 was ready to satisfy Pltf. his just debt, but not for his unsold property, which he was very willing to return. The prices affixed to the articles were too high to meet with purchasers in the Settlement. He had, at great trouble and expence, taken them out to Lake Salle, where they were now at this moment. A Jury being empanelled, the case proceeded for trial. Morrison McBeath, who being duly sworn, deponed that during the summer 1860 Defendt. called at Mr. Bannerman’s wishing to see him, but he was from home. And he asked to see his account. “My wife87 gave him the book, and after he had looked at it for a while he said to my wife: ‘Tell your father I will be up next week to settle with him.’” Does not know that there was two accounts. “All which is truth, as I &c., &c.” Compeared also Mrs. McBeath who, being duly sworn, deponed: “I did not know anything about the goods. I simply sent down a list on the goods itself, but no acct. The coats were marked 36/ ea. I was not present at the bargain. All which is truth, &c.” Compeared also Charles Flett who, being duly sworn, deponed as follows: “I took the goods from Mr. Bannerman’s to the Defendt’s, and left them there. All which is truth.” Wm. Henderson, who being duly sworn, deponed that he had bought one of the coats from Mr. Bannerman for 36/. All this was truth, &c., &c. Verdict: [Debt, after] deducting 8 coats @ 30/ ea. – £08.09.06 88 Costs: – 01.14.06 10 days to pay: – £10.04.00 20 days to return the [eight unsold] coats. [B]231

Andrew McDermot versus James Kennedy [Case 227]

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Debt of £24.11.00 This case went by Default after the Pltf. had sworn to [his account, and to] the delivery of the summons through the Constable. The decision of the Bench is that 20 days grace be given to Defendt. to pay: £24.11.00 Costs: 11.00 £25.02.00

Alexander Black versus Wm. Sinclair [Case 228] Debt of £20.00.00 at 12 pr. cent Plaintiff stated that he had lent the Deft. the sum of £20 at 12 pr. cent interest, but the first year, 1860, “I recd. only £2, and the year after £4: 1861. I have received altogether £6, say £5 in cash and 1 galln. of wine @ 20/, as above stated: £6. The wine was on a separate acct.” Decision: Defendt. to pay the balce.: One year’s interest on £20: Costs: To pay by the 15th of October:

£14.00.00 at 12 p. cent 2.08.00 17.00 £17.05.00

Alexander Cammeron versus Henry McKenny [Case 229] Debt: £5.14.00 Plaintiff stated that 2 years ago next Nover. [words missing: he provided?] the Defendt’s people with [food for] 19 oxen for four days at 1/6 p. head [per day]. “I have applied to Defendt., and he refuses to pay, which is the reason of the present suit.” W. G. Fonseca, who being duly sworn, deponed [B]232 as follows: “According to the statement of Defendt., I was present when the [wagon] trains met there. We fed our cattle as we liked. I know that the 19 animals were fed and sheltered during 4 days. All of which is truth, as I shall answer, &c., &c.” Compeared Wm. Lyons [who], being duly sworn, deponed as follows: “I went to Mr. Cammeron’s with about 17 head of cattle. I asked Mr. Cammeron what I had to pay for. He said what I pleased. I gave him 1 lbs.

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tobacco, 1 lbs. of tea. The weather being bad, we were driven back again to Mr. Cammeron’s, who fed and sheltered them. To the best of my knowledge there were only 17 head of cattle, and three days was the utmost time we were there. I did not think the weather so dangerous. To the best of my knowledge,89 we were not more than 2 nights and one day. Mr. Fonseca was there with his trains, and our cattle had very little shelter. All which is truth, &c.” Compeared Henry Pariso [who], being duly sworn, deponed as follows: “I was engaged to Mr. McKenny this trip with 2 or 3 other men, when we were driven back. I am sure there was not more than 15 or 16 cattle, and cattle were there less than 2 days. All which, &c.” Compeared Hugh Cammeron 90 [who], being duly sworn, deponed as follows: “I did not give the hay, but they took it. I got a piece of tobacco and a little tea. There were 17 oxen. All which is truth, &c., &c.” Verdict: 17 animals at 1/6 £3.00.00 2 do. “ “ 19.06 Costs of suit: 1.04.09 £5.00.03

91

Commentary This case offers a good example of John Black’s informal, common-sense judicial style. According to the Nor’-Wester account, McKenney registered a preliminary objection that the only account he had ever received had come from Cammeron’s father rather than from the plaintiff himself. While acknowledging that this was a serious objection, the recorder persuaded McKenney to overlook it – probably by pointing out that Cammeron could simply send him a bill and sue again at the next court session. After both parties had closed their respective cases and addressed the jury, Cammeron suddenly requested permission to call his father as a witness to address a point McKenney had made during his address. When McKenney understandably objected to this, the recorder again tried to convince him to overlook the matter. Conceding that it would be an “irregularity” to allow Cammeron Senior to testify at this point, Black observed that it was “not desirable at all times to adhere too strictly to Court rules,” adding, “in this Court he had always noticed that the Bench and the Jury had the greatest wish to hear all the evidence.” This time, McKenney persisted in his objection, so Black tried another tack: he asked the jury if it wanted to hear the father’s testimony. When the jury predictably indicated that it did wish to hear the witness, the recorder overruled the objection and allowed the father to take the stand.

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[B]233

Nichol[as] Courtelle 92 versus Louis Thebeault [Case 230] Breach of Contract [for Lifetime Board and Lodging]93 Baptiste Laundré, being duly sworn, deponed as follows: “In the year 1856 the Plaintiff was at Mr. Thebault’s. Saw him working at hay in the summer and attending cattle in the winter. He always appeared to me to be ready and willing to work. All which is truth, &c., &c.” Compeared also Jean Hupée who, being duly sworn, deponed as follows: “I was at Dfendt’s for three years. Plaint. was there making hay. Saw him one day quarrelling with Josh. Flammond, when he, Flammond, left the field on account of this quarrel. All that which is truth, &c., &c.” Compeared also Antoine Du Nord [who], being duly sworn, deponed as follows: “I heard Mr. Thebeault refuse to give him, Pltf., some soap as he, Courtelle, would not work. All of which is truth, &c., &c.” Compeared also Pierrish Dumain [who], being duly sworn, deponed as follows: “I have seen Pltf. at light work. I asked Defendt. to lend me a gun, but Mr. Courtelle had a gun, and I asked Pltf. to lend me his gun. He said it was Defendant’s. All which is truth, &c., &c.” Compeared also Goodman Marchand [who], being duly sworn, deponed as follows: “I was passing on the 26 June, 1859, and heard the Defendt. tell the Pltf. to be off with himself. This was before they pleaded the first time. It was in the evening, and he went out the next morning. All of which is truth, &c., &c.” Compeared also Louis Delorme, [who was] sworn and deponed as follows: “I was at Defendt’s house when both parties came into the room and Pltf. said to Deft.: ‘You refuse do you?’ The other replied that he had treated him well, but now he had done with him. All is truth, &c., &c.” [B]234 Compeared also Benjamin Largomonier [who], being duly sworn, deponed as follows: “In the end of April, Deft. told me of the trouble he had with the Pltf., and he said he would be glad to get rid of him. All which is, &c., &c.” Compeared also Albert Sargent [who], being duly sworn, deponed as follows: “I know that in 1859 Pltf. came to me in the absence of Defendt., who was at YF [York Factory] at the time. I let the Pltf. have some tea,

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tobacco and soap when he told me the Defendt. had not left any of these articles for his use, and these articles remain unpaid still. All of which is truth, as I shall answer, &c., &c.” Compeared also François La Rivier, [who was] sworn and deponed as follows: “I was engaged to Defendt. for 3 years. I know that the Defendt. went to see Plaintiff when he was lying ill, and very sick. And two or three days after, Plaint. came to Defendt’s house and lived there – and then gave himself up to Defendt. I was present when the bargain was made. Defendt. had on one occasion offered to give up all the cattle he had not sold, and to pay him for those he had sold. Once I heard Plaintiff asked for shoes, and there was none made at the time. At another time he wanted some tobacco, and there was none in the store, and Defendt. went to the Fort to buy some for him. Pltf. would not work at one time, and Deft. asked him if he was sick, and if he was to tell him. All which is truth, &c., &c.” Compeared also Modèste Cantara, [who was] sworn and deponed as follows: “I was two years with the Plaintiff in the same house at the Defendt’s. He, the Pltf., would not work. I never heard Deft. refuse him anything. I know that Pltf. stole a bell. The bell formerly belonged to the Pltf. Also he stole a gun coat. He sold the bell to Courchaine for one pound. All is truth, &c., &c.” [B]235 Compeared also Maximilian Genton, [who was] sworn and deponed as follows: “I was once in the house of Defendt. when the Pltf. came into the room where I was sitting with a pair of garnished mittens; and he threw them down on the ground, saying they were trash. I was one of those appointed to appraise the property he (the Pltf.) had given over to the Deft. when he gave himself up, and it amounted to £66.15.00. All which is truth, &c., &c.” Compared also Cyrel Marchand, [who was] sworn and deponed as follows: “The Plaintiff was sick and in a miserable state when Defendt. came to him and offered him to take him to his own house for a few days till he got better. He went, and finally gave himself up to Deft. During the time he was at Deft’s while sick, I looked after his cattle. All which is truth, &c., &c.” Compeared also Baptiste Perreault, [who was] sworn: “The day the Pltf. made the paper by which Deft. was bound as (it set forth) [sentence incomplete]. I have seen him work, and I have seen him doing nothing, and whether he was sick or well. All which is truth, &c., &c.” Compared also André Harkness, [who was] sworn, and deponed as follows: “I was on the Jury once for this same case; and I was once appointed

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one of the arbitrators in this case with others. I was at Defendt’s when he  left him. I saw his boxes filled with clothes. All which is truth, &c., &c.” Compeared also Mr. Bruneau, JP,94 sworn. Deponed that this case had been once before brought on by the present parties, and Dr. Bunn had advised both parties to put the case to arbitration. Defendant furnished a list of the articles, and we estimated them. “I have seen Plaintf. behave himself badly by his ill humour. I cannot say if every article was marked in that list.” All which was truth, &c., &c. [B]236 Compeared also Joseph Flammond, Junr., [who was] sworn and deponed that: “I asked Defendt. for the loan of a gun, and he lent me Plaintiff’s gun. I went off to the hay with the gun, and he, the Pltf., took it and hid it from me. We were hay-making, and Pltf. was the conductor. We worked a while, and we quarrelled. I could not put up with him, so I left. All which is truth, &c., &c.” Compeared also Joseph Flammond, Père, [who was] sworn and deponed that: “For two years Pltf. did not work. I asked Deft. what he was going to do with a fellow like that. Deft. said he took him for pity. I have seen him fighting with Cantara. The first year he worked well, but after that he scarcely ever worked. All which is truth, as I shall answer to God.” Verdict: Defendant Mr. Thebeault is obliged to fulfill his engagement, and that the Plaintiff Mr. Courtelle is obliged to work as he is able for Mr. Thebeault, and the costs to be divided. Costs Plaintiff: £2.15.06 do. Defendant: 17.06 One half each: £1.16.06

The Second day’s sitting: 95 22 nd day of August, 1862 96 L. B. Martin & Co. 97 versus Stephen Green [Case 231] Debt of £7.01.03 This case went by Default: 10 days to pay: £7.01.03 Costs: 11.00 10 days to pay: £7.12.03

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[B]237

Henry McKenny versus Baptiste Hupée [Case 232] Debt of £5.17.06

Constable sworn to the delivery of summons. Plaintiff swore to correctness of his acct. Case went by default: £5.17.06 Costs: 11.00 £6.08.06

Henry McKenny versus James Lecrée [Case 233] Debt: £9.17.09 Case went by default: 10 days to pay the above sum

The General Quarterly Court, held on the 20 th day of November, 1862 98 at which the following magistrates were present: John Black Esquire, Recorder of Assiniboia François Bruneau Esqre., Justice of Peace Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do.

Alexander Sutherland versus James Johnson [Case 234] Debt: £23.05.00 10 days to pay debt and costs:99 Debt: £23.05.00 Costs: 11.00 £23.16.00

Public Interest 100 versus Louis Pruden 101 [Case 235] For a Breach of the Liquor Law to Indians [B]238 Grey Eyes,102 who being sworn, deponed as follows: “I was engaged to A. Mowat, and about hay time got 10/ from him. I went to G. Kennedy to

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buy leather. He had none. I then went to Louis Pruden, and he was asleep, but got up. I bought some few articles from him. I got a dram for nothing. I got another dram, which I paid 6d. for it. Saw another Indian, James. Louis Pruden gave him also a drink for nothing. After I paid for the last drink I left; and when I came up, about Mr. Kennedy’s, I lost my senses, and know nothing after. I bought half a skin from Louis Pruden’s mother. I bought some soap, box matches, castor oil, and a thimble, and I paid for the articles as I got them. All which is truth, &c., &c.” Compeared also James, an Indian, who being sworn, deponed as follows: “I was engaged to A. Mowat to go to YF [York Factory]. About the beginning of August got some advances. The day I went to Louis Pruden, I had 20/. I went for leather to G. Kennedy’s. He had none. I went to L. Pruden. He was sleeping. He had no leather. I then bought a shirt, box of matches, tobacco and soap. After I was done buying, L. Pruden gave me a glass of whiskey. I asked another drink and paid 6d.103 for it. I got a third drink, for which I paid 6d. I go to church when I am not idle. I am a native of this river. My parents were both Indians. I told L. Pruden I was a Half Breed. I do not believe my father was a Half Breed. All which is truth, &c, &.” Compeared also Henry Prince who, being duly sworn, deponed as follows: “I was engaged to Mr. Mowat for the trip. I got £2 from Mr. Mowat, and went to G. Kennedy’s for leather. He had none. Went to L. Pruden. He had none also. I bought some little things from L. Pruden: a shirt &c., &c. I was there after I had done buying. L. Pruden gave me a drink of whiskey for nothing. [B]239 The two former witnesses were there, and I saw them drinking whiskey. I went to P. [sic] Kennedy’s. I left them there. I am sure they were drinking whiskey. They were drinking out of the same bottle as I was drinking out of. I got a drink twice for nothing. Saw L. Pruden give James whiskey. All which is truth, &c., &c.” Compeared also Andrew Mowat,104 [who was] sworn and deponed as follows: “I employ Grey Eyes a chance time. I pay him £7 for the trip. I had other men, but pay them only £6: [the rate] to middlemen.105 I make no difference between Half Breed and Indian. These Indians were dressed according to their means.106 These were dressed in the Half Breed style: trowsers and shirt. All which is truth, as I shall answer, &c., &c.” Compeared also Edward Pruden, [who was] sworn and deponed as follows: “I know Grey Eyes and James. They dress as Half Breeds. I looked on one as a Half Breed, but the other I don’t know. I know that the general character of James is that of a liar. All which is &c., &c.”

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Compeared also Joseph Tait, sworn: “I know Grey Eyes. I take him for a Half Breed. For the last 10 years he has been employed at the Pltf’s [sic] in the capacity of a servant, farming and working at the ordinary work of Half Breeds.” Verdict: James’s case Guilty: fine £10 Commentary Before any evidence was heard in this case, defence counsel Henry McKenney made a preliminary objection to the form of the summons on the ground that the document was not sufficiently precise concerning the time and place of the alleged offence. “It might have taken place in Greenland, ten years ago, among the Esquimaux.” If this objection took him aback, Recorder Black refused to consider it of consequence to the case at bar. In response to McKenney’s contention that lack of detail in the summons made it difficult to prepare a defence, Black pointed out that the accused knew the details of the charge, since they had been set out in Andrew Mowat’s original information, as well as in the testimony of witnesses at the preliminary hearing. He agreed with McKenney, however, that summonses should ideally be more precise than this one, and Magistrates McBeath and Sinclair took up the refrain, commenting that the fault lay in the printed forms then in use: “We must get a new lot printed off. The old ones will not do at all.” The recorder appeared eager to use this prosecution as an occasion to educate the public about the law prohibiting supplying liquor to Indians, and to clear up some popular misconceptions on the subject. Early in the proceedings, for example, he interrupted McKenney’s cross-examination of a witness at a point where the defence counsel was trying to establish that the accused had given, rather than sold, a drink to a particular Indian. The distinction was irrelevant, Black said, because the law made it illegal to “furnish” – not to “sell” – liquor to Indians. In his long charge to the jury, Black reiterated that point, as well as offering helpful observations on the difficult subject of how to determine whether someone to whom liquor was furnished was, in the words of the law, “popularly known” as an Indian even if not genetically so. Recorder Black was most vociferous, however, in attacking suggestions made in McKenney’s address to the jury that informer-prosecutor Mowat was motivated by a greedy desire to split the fine – as the law provided. Black rejected that allegation, pointing out that if Mowat had been so motivated, he would have taken the opportunity that the circumstances of the case made possible to lay further charges against Pruden, and thus become entitled to share even more fines. Rather, Black asserted, this informer had been driven by a desire “to stop a practice which has done a great deal of harm.” “My own opinion,” he added, “is that the supplying of spirits to Indians is the most gigantic and inveterate of all the evils in our midst.”

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The jury deliberated for two hours before returning to inform the court that it found the accused guilty in the case of James, but that it was unsure with respect to Grey Eyes – presumably as to whether that individual was “popularly known” as an Indian. When the recorder instructed the jury that the benefit of such doubt must be given to the accused, a conviction was entered on the one charge alone. Pruden having paid the £10 fine immediately, the court forthwith handed half of it – £5 – to the informer, Mowat. The latter must then have astonished onlookers by calling Pruden forward and refunding the £5 to him, saying: “I did not bring you here for the purpose of making money of you. I did it to make an example of you. Here is your money ... Go and sin no more.”107 W. R. Smith

Clerk of Court [B]240

The General Quarterly Court, held on the 19 th day of February, 1863 at which the following magistrates were present, viz.: John Black Esquire, Recorder of Assiniboia William Cowan Esqre., MD, Justice of Peace François Bruneau Esqre., do. do. Robert McBeath Esqre., do. do. Thomas Sinclair Esqre., do. do. Henry McKenny Esqre., Sheriff of Assiniboia The following Grand Jury were sworn in: 1 William Dease 12 Jno. Inkster 2 John Rowand 13 Jno. Fraser 3 Alban Fidler 14 Wm. Bunn 4 James McKay 15 John Vincent 5 Roger Goulet 16 Dond. Murray 6 Jerome Neros 17 Wm. Thomas 7 Maximilian Genton 18 Morison McBeath Senr. 8 Thomas Truthwait 19 James Sutherland 9 Donald Gunn 20 Dond. Bannerman 10 William Drever 21 Narcise Marion 11 A. G. Bannatyne After a charge delivered by the Recorder to the Grand Jury, three bills of indictment were sent in to them as follows: 1st The Queen vs. G. O. Corbett, 2nd The Queen vs. Athanas St. Luc, 3rd The Queen vs. Joe Bodoin and Edouard Rinville.

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Civil Lists as follows:

John Rowand versus George Racette [Case 236a] 108 For a Debt of £17.03.00 The Bill being read, the Defendant took some [B]241 objections to the Bill, and denied the debt in part, and pleaded that his witnesses were absent. The Court then, after sufficient investigation, allowed the case to stand over till the next Court in May.109 In the meantime [Defendant] to pay the expences of the present Court: 11/. Judgement of the Court against Defendt. for the sum of 11/. It was immediately paid.

John Rowand versus Josh. Genton [Case 237] 110 Debt of £25.00.00, Interest at 3 years and 2 months With all deductions, the debt remained as follows: Debt: £22.18.04 Costs: 11 £23.09.04 10 days to pay End of the Civil Suits

[The Queen versus Griffith Owen Corbett] 111 [Case 238] [Attempt to Procure Abortion] The Grand Jury returned a True Bill against Griffith Owen Corbett.112 The Revd. Griffith Owen Corbett being placed at the bar, the following Bill of Indictment was read by the Clerk of the Court:113 “Red River Settlement, District of Assiniboia, to wit: The Jurors for our Lady the Queen, upon their oath, present that Griffith Owen Corbett, Minister, of the Parish of Headingley in the said Settlement, with intent to procure the miscarriage of Maria Thomas, formerly of Headingley and now of Mapleton Parish, also in the said Settlement, on or about the twenty-sixth day of April, one thousand eight hundred and sixty two,

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at Headingley aforesaid, feloniously and unlawfully did insert one of his [B]242 fingers into and up her vagina or private parts towards and in the direction of os uteri, or mouth of the womb, against the form of the statute in such case made and provided, and against the peace of the Queen, her Crown and dignity. ¶ And the Jurors aforesaid, upon their oath, further present that the said Griffith Owen Corbett, with the like intent to procure the miscarriage of the said Maria Thomas, did, on or about the ninth day of May one thousand eight hundred and sixty two, at Headingley aforesaid, feloniously and unlawfully administer to her, or cause to be taken by her, a certain poison or other noxious thing to the Jurors aforesaid unknown, against the form of the Statute in such case made and provided, and against the peace of our Lady the Queen, her Crown and dignity. ¶ And the Jurors aforesaid, upon their oath, further present that the said Griffith Owen Corbett, with the like intent to procure the miscarriage of the said Maria Thomas, feloniously and unlawfully did, on or about the thirteenth day of June, one thousand eight hundred and sixty two, at Headingley aforesaid, use in and upon the said Maria Thomas a certain instrument or piece of wire, tied with tape to the forefinger of his right hand and with the point of the wire projecting about half an inch or three quarters of an inch beyond the point of his said finger; and which instrument or piece of wire he used by inserting it into her vagina or private parts and towards and in the direction of the os uteri or mouth of the womb, against the form of the statute in such case made and provided, and against the peace of the Queen, her Crown and dignity. ¶ And the Jurors aforesaid, upon their oath, further present that the said Griffith Owen Corbett, with the like intent to procure the miscarriage of the said [B]243 Maria Thomas, feloniously and unlawfully did, on or about the fifteenth day of June, one thousand eight hundred and sixty two, at Headingley aforesaid, administer to her or cause to be taken by her a certain poison or other noxious thing to the Jurors aforesaid unknown, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her Crown and dignity. ¶ And the Jurors aforesaid, upon their oath, further present that the said Griffith Owen Corbett, with the like intent to procure the miscarriage of the said Maria Thomas, feloniously and unlawfully did, on or about the twenty-fifth day of June, one thousand eight hundred and sixty two, at Mapleton aforesaid, thrust one of his hands, after he had rubbed it with oil, into and up her vagina or private parts towards and in the direction

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of the os uteri or mouth of the womb, contrary to the form of the statute in such case made and provided, and against the peace of the Queen, her Crown and dignity. A True Bill (signed) Donald Gunn Foreman” The Prisoner , being called upon to plead, pleaded Not Guilty.114 The following Jury were sworn:115 1 Alexander Sutherland 7 William Sutherland 2 James Inkster Senr. 8 John Harper Senr. 3 James Inkster Miller 9 John Vincent Junr. 4 Thomas White 10 Henry Brown 5 George Setter Junr. 11 John Slater 6 Robert Munroe 12 John Fletcher116 Maria Thomas,117 who being duly sworn, deponed as follows: “I know the Prisoner at the bar. I was [B]244 engaged in his service at £8 p. anm. I continued in his service one year, and then for two months after the first year, and after that for two weeks. I left Mr. Corbett’s service because Mrs. Corbett could no[t] agree with me on account of her husband always being after me.” ¶ “He used to lie with me upon the hay loft. The loft was made of round sticks and hay. There was a hole made up in the loft by Mr. Corbett for the purpose of watching Mrs. Corbett. The hole was made by Mr. Corbett with a broad chisel. This hole was subsequently shut up118 by T. Swain and opened again by Mr. Corbett.” ¶ “Mr. Corbett first had connection with me early in the winter. I had been washing all day, and I found my back sore in the evening. I told Mr. Corbett. He gave me some medicine in some wine.119 Short[ly] after this I went in to prayers, but was so very sleepy I could not keep open my eyes, and I remained on my knees till Polly120 awoke me by pushing me. I then went to the kitchen, and while washing up the tea things I could scarcely keep from sleep. I slept soon after going to bed. Polly slept with me. I slept all night, and when I awoke the next morning I was sore all over and could not move my body. I got Polly to help me to rise. Whe[n] I got up I felt myself so sore that I thought my inside would fall out. And seeing blood where I had been sitting I said: ‘What can be the matter with me?’ My troubles had left me the day before.”

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¶ “I asked Mr. Corbett what was the matter with me. He told me that he was with me that night, but I need not to be afraid. I said: ‘Very well, but as soon as I get better I will go down and tell the Bishop.’ He begged me not to go – and shed tears and said he would pay me not to [B]245 go. He said he would give me money, and that when he would go to the Fort he would bring me up things. One thing he brought for me was a French merino dress. I cannot tell how long after his connection with me that he gave me the dress. I cannot tell how often he had connection with me, for it was nearly every time I went to feed the cattle.” ¶ “Mr. Corbett used to put his finger up my privates. This was last spring, and there was still snow on the ground. He put his finger up and said he would find a small hole and he would scratch something. His finger was too short, and he left off, saying that he would let his nail grow. The second time he tried he said his finger was still short, and he would use instruments.” ¶ “Mr. Corbett then boiled medicine. This medicine was like ground pepper. He weighed it and he took a small saucepan to boil it. He took the saucepan in his pocket and boiled it out of doors. And after he had made it he gave it to me to drink. When he went to boil this medicine he told his wife that he was going to burn willows. I drank this medicine and immediately vomited it up.” ¶ “One day he sent his wife to see Mrs. Sharp’s baby, and after her departure he took me upstairs into a room that overlooked the road which Mrs. Corbett had taken. When I went into the room I saw on the floor a wire with a round end, red tape, a bottle of oil with a feather in it. I asked him what he was going to do with these things. The wire was small, rounded like a bodkin.” He said he was going to make sure whether she was with child, or had caught cold. He tied the wire with red tape to his forefinger of his right hand, leaving the end projecting about a half inch or three quarters of an inch beyond his finger. [B]246 He then took up the feather from the oil bottle, and oiled his finger and the wire. “He put the carriage pillow on the floor, and told me to lie down on my left side. He told me that he would push up the wire and search for a small hole.” And then he would stir up something that would give her great pain “up my private parts.” ¶ “He steadied my rump with one hand, and used the other in introducing his forefinger. He found the hole, and shoved in the wire. And then I found great pain. I cried out to him to let me go. I rolled about. He told me to lie still for two or three minutes and to suffer the pain and it would be all over.”

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¶ “While I was suffering this pain some person knocked at the door. He pulled out his finger with the wire. He then told me to go and jump off from the end of the store[house]. I told I would not do so as I was too sore. He said it was my own fault, and if I would do as he told me it would be all right. He wiped his fingers and went downstairs to Mr. Whitford.” ¶ “I went outside of the house and sat down in a lump, as I was so sore. Whitford, the person who knocked at the door as I said before, did not remain any time, but went off. Mr. Corbett then came to me with a pair of nippers [which] were bright and blunt; the other pair were sharp.121 By this time Mrs. Corbett returned home. Mrs. Corbett went twice alone. It was on the second time she was absent that Mr. Corbett operated on me with the wire. Mr. Corbett made some more medicine, and he told me to take it. It was brown and bitter. He told me to shake the bottle before taking it.” ¶ “Mr. Corbett asked me to marry Chamberlain. I told him I would first see my friends. I saw Chamberlain afterwards, and he asked me. Mr. Corbett saw Chamberlain afterwards, and he asked me. Mr. Corbett saw Chamberlain working at Bourk’s fencing, and he [B]247 spoke to him. The Revd. H. Cockran also spoke to me about this man, and said he had heard that I was going to get married to Chamberlain. This was when Mr. Cockran was on his way going off to some distant place.” ¶ “When I left Mr. Corbett’s I was overtaken by Joseph Sayer, and when near the French Chapel Mr. Corbett came up. Joseph Sayer went on with my bundle. Mr. Corbett came up and said I must go back. I ran after J. Sayer to get my bundle, and went back with Mr. Corbett. And when at the back of Braconnier’s I and Mr. Corbett went into the bushes and he there had carnal connection with me, and he gave me £7. When he came to Gowler’s, I watched there till Mr. Corbett came with the carriage, and then went down with him to the Revd. Mr. Taylor’s. It was in the evening and dark when we arrived.”122 ¶ “I went down once last winter with Mr. Corbett, and came back with him, but the mare returned, and Mrs. Corbett found the mare at the point. G. Daniel and the Bishop’s servant met us, and told Mrs. Corbett that they had met us. Once in the summer, Mr. Corbett drove me down to this Fort, and on our way back we stopped to rest the mare, and then we stopped altogether. He took some rum out of the keg, and he took the mare out of the gig. And then he laid his head in my lap and told me to look for creepers.”123 ¶ “When we slept at Revd. Mr. Taylor’s he took me to C. Fidler’s, and while we were there I lost £7,124 and one of Alban Fidler’s sons found it. I got also

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a picture Bible – that is the Bible now shown to me.125 Williamson wrote my name in it at Leask’s place.126 In my bundle there was this Bible, some currants and raisins. I went down on horseback from Fidler’s to Leask’s. I called at this Fort on my way down. I bought a shawl for 18/, and a gingerbread. A. Fidler said we should go down on horseback. The next morning A. Fidler, who had been at Lower Fort Garry, had come and taken his mare.” ¶ “The next time I saw Mr. Corbett was at Mapleton.127 He had told my brother Thomas the day before that he would call, and when he came it was in the morning. I was alone in the house with him. He said [B]248128 to me: ‘Let me put my hand in your private parts, and if it is bigger I will pull it down.’ He told me to get my sister Betsey [Fidler, and] said: ‘I will do the same to her. I will use her as a bait, so that your father and mother may not dread anything.’” ¶ “Betsey came in and sat down on the foot of the bed. Mr. Corbett said: ‘What is the matter with you Mrs. Fidler? You do not look well.’ She said she was not. Mr. Corbett said to her: ‘If you will let me examine your body I will tell you what is the matter with you.’ Betsey [was] not knowing what examination she was to get, but thought it was only to look at her body. Mr. Corbett told me to tie the door with a string, which I did. He then took a bottle of castor oil and poured some in a saucer. And he tucked up his sleeve and greased his hand with the castor oil, and he put his hand up Betsey’s private parts and worked at her a long time. Betsey told him to ‘leave off now,’ and she got up.” ¶ “And then he told me to lie down, saying to Betsey: ‘This will give Maria courage,’ and he greased his hand and began at me by putting his hand up my private parts. I shrieked out from pain, and Betsey told him to let me alone. Mr. Corbett said: ‘It is better for her to suffer this pain now than to suffer it after.’ He pushed his whole hand up into my privates. He then – after Betsey had told him twice to let me alone – 129 he left off.” ¶ “It was in the morning after nine that he came. Then, after this operation, he bathed his hands, and we borrowed some things and gave him dinner. And after dinner he took a glass of wine and he went to sleep. Not an hour after he got up, he asked for some ink to write to Mr. Hunt.130 My mother took the letter down to Mr. Hunt. He was talking to my parents and advised them to get me married.” ¶ “The time I came down to Leask’s I spent the money at the Fort. Mr. Corbett went away from our place [B]249 at Mapleton after school in the afternoon. I did not see Mr. Corbett again till I saw him at Headingley.”

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¶ “Mr. Corbett told my mother to say to Mrs. Corbett if she enquired about the boards [that] all was right.131 I went to enquire of Mr. Corbett where to put our ox. When I went to him, he gave me £4. I shewed the money to my mother. We went to John Taylor’s, and Mr. Corbett beckoned to me. He went out, and Mrs. Taylor went after him, and I followed, and my mother came after me. Mr. Corbett was sitting on a sofa on the outside. He began talking to my mother all about me. He told my mother he would give her anything for the sake of me, and that he had never loved a servant girl so much as he loved me. And said he would give her provisions and tea and sugar. And at this trip, as I before said, he gave me the £4.” ¶ “Mr. Corbett asked me to swear to one little thing. I said I would.132 Mr. and Mrs. Corbett, John Taylor, and my mother and self were present. John Taylor wrote the paper, and told me, and shewed [it] to me – and said Mr. Corbett had made it out, and that he had copied it. After I had sworn to the paper, he gave me some liquid and pills.133 Every other hour I was to take a spoonful. I took some, but my stomach would not retain them. The pills were to be taken 2 each morning, and 2 in the evening. I took [them] a short time, and then my mother threw them away, as they purged me so much. The pills made me to strain very much. Mrs. Leask told my mother to throw the medicine away that was in the bottle.” ¶ “I was never in service till I went to Mr. Corbett’s service. The medicine that was in the bottle, he gave me the same time I was at Headingley with my mother. And when I got it the wheat was in stooks.” The first day’s sittings ended here. [B]250

The second day’s sittings: 134 the 20 th day of February, 1863 135 Maria Thomas’s examination continued: “Mr. Corbett saw the Bible when he was down. I drank the medicine out of the spoon shown to me yesterday, and out of one of Mrs. Leask’s. Mr. Corbett brought up the merino dress, and hid it in the hay stack with other things in the bundle. Mrs. McChorister I spoke to [and asked her to] make up the dress.” But she refused, as Mrs. Corbett had told her not to make it up till she found out where she got it. ¶ “John Taylor came down with this paper that I had signed, and said he came down to try to hush up the affair, and said: ‘See what a solemn oath you have taken.’ I told him I had not consented to that paper – it was only a little thing I was asked to swear to. He said he could not help it: ‘Mr. Corbett wrote the paper and I only copied it.’”

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¶ “Mr. Corbett sent me down a letter, which I have burnt. By his written direction he stated in that letter”136 that Mrs. Corbett had heard that she had lost £7. “I sent down some money to my mother. I saw Mr. Corbett write a note on the fence with a flat broad pencil. He gave my brother the note. It was for Mr. Hunter to give him 15/, and 5/. [It] was a present to himself.” ¶ “Mrs. Corbett always sent me away, and Mr. Corbett always stopped me. After the first year I wished to leave, but Mr. Corbett prevented me. I asked P. Fidler to bring me home. He brought a horse and cart, which Mr. Corbett turned back again. And P. Fidler told me that Mr. Corbett had said that Mrs. Corbett and I often had squalls, but they [B]251 were nothing. P. Fidler was at the barn and I was at the gate. I know Peter Fidler. I went to Mr. Corbett’s for £8 per annum.” ¶ “Mrs. Corbett caught Mr. Corbett tickling me.137 After that, they were unhappy and always quarrelling. It was after New Year at the time Mrs. Corbett caught us. The only way to get through from byre to stable was through a place the mare had kicked down. I went in by the door, Mr. Corbett came in by the door at the back. I said Mrs. Corbett complained of the length of time I took at the byre. She told me to go off. She scolded me [so often] that I would not bear it. I heard Mrs. Corbett say to Mr. Corbett: ‘You will get yourself into a scrape.’” ¶ “I do not remember Mr. Corbett’s telling me that he had received a letter from Mrs. Leask wishing me to get married. Mrs. Corbett often scolded me, but she was very kind to me and used to help me at my work. But latterly she did not. I do not remember at what time it was that Mr. Corbett put £2 in my box and Mrs. Corbett said that I stole it. That is the reason I was angry with Mrs. Corbett the day after the Ball. I never, on the night of going to the Ball at Cammerons, asked T. Swain to go astray on the point. I went to Mrs. J. Taylor for two yards of print and told her to get it, and I slept there. I never remember to have seen Betsey Boubie and Alexr. Cammeron at Mrs. Taylor’s.” ¶ “I never took turkey eggs from Mrs. Corbett. I went with Mrs. Corbett to Mrs. Stevenson, and she said the boys had been there at work – that these boys had taken the eggs. I did not say it was a lie.” ¶ “Mr. Corbett told me that he had heard that Mrs. Leask was dead. Mr. Corbett read a letter to the same purport. I do not recollect my having asked anyone in the parish for mourning. I spoke to Mrs. Taylor about a shawl. I told her I had heard from Leask. I saw the Revd. H. Cochrane, [B]252 and he said: ‘I heard you are going to be married to J. Chamberlain.’ He said he

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was happy to hear it, and that he was a good young man. The Revd. Henry Cochran is a stranger to me, and this was the first time of his speaking to me. I do not remember the Revd. Mr Chapman telling me to change my conduct. T. Swain was contending and denying with me what I stated.” ¶ “The first time Mr. Corbett had connection with me was the first winter. He sometimes put me up [to the loft] with a ladder; at other times I got up on his back. during the summer there was hay in the loft. I know that Peter Fidler worked sometimes in the premises. I was ordered to take hay from the loft in rough weather, and Mr. C. would lie with me.”138 ¶ “There was a public road there. People used to pass there. Mr. C. used only a chisel and hammer to make the hole. It was only of mud the first time. Mr. C. was the first who spoke to me of Chamberlain. He promised to give me the lot of land next to the church, and put up a house for me, and give me £10 a year.139 When Josh. Berston was there Mr. C. would follow me to prevent me speaking to him.” ¶ “I left Mr. C’s service on the 16th June. I observed that Mrs. Corbett’s behaviour was changed towards me. Mr. Hunt did not speak to me of the Bible, but [of?] a book on ‘Marriage Life.’ He Mrs. [sic] C. told him to ask me for it.” ¶ “Mr. C. often threw me down against my will. I never told anybody at Headingley. I told him I would not. Mr. C. mastered me by sheer strength. Mr. C. sometimes he said he would pay me to lie with me. He would conceal himself in the byre, and throw me down; and I got up again in spite of him, and he would throw me down again.” ¶ “The night Mr. C first slept with me Mrs. Corbett was home. I told him the next morning that I was very sore, and asked him to give me some medicine. He gave me some in a little wine – about two spoonfuls – before going to bed. He told me [he] had been with me that night.” ¶ “The French merino140 dress I took out of the hay stack – I can’t say what time. Mrs. Js. Foubister made it up for me. I think I took up the dress piece [B]253 to Mrs. Foubister. My mother sold her land before I went up to Mr. C. I do not remember telling anyone that my mother gave me the dress. Mrs. Leask gave me a muslin dress. I did not like to wear it.” ¶ “Mrs. C. gave me money on my wages. The first time Mr. C. bought for me a bonnet and some black ribbon &c. In the summer when I came down Mr. C. gave me a neckshawl, 2 yds of print, and some cotton. I cannot say

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that these things were charged to my account. Mr. C. said they were not to be charged, but to tell no-one. I do not think all the things I got from Mr. C. were charged. I only got one account, and it was from Mrs. C. and I only got four shillings at the end.” ¶ “Before Mr. C. used his finger he asked me if I had my troubles, and he wished to bring on my troubles. Don’t know Whitford. He came and knocked at the door. He was there again afterwards. I have made a mistake. It was the second time Whitford came to the door and knocked at the time I meant – when Mr. C. was at his operation on me with the wire tied to his finger. Mr. C. told me he had told Whitford to bring an accordian & some dried apples. I know Dd. Tait, but am not much acquainted with him. When Mrs. C. went down to Mrs. Sharp she went down the track through the fields.” ¶ “The day after he (Mr. C.) made the medicine I took it. The day before I left his service was the day I first took any of that medicine. I only took it once. I left the next day. (Mrs. C.) knew [about?] the medicine. Mr. C. told me it was to bring on any troubles. He gave me the medicine before he examined me. The bottle in the porch could not be seen. The bitter stuff was to make or ‘squeeze’ out something from me. I cannot be sure whether Mr. C. used any instrument when he came to me in the night.” ¶ “Josh. Sayer came to the kitchen in the morning and laid down by my side, but he did not lift up my clothes. Josh. Sayer never had any connection with me.141 I only became acquainted with him when he was working for Mr. C. When going down from Mr. C. with Josh. Sayer I told him Mr. C. was coming after us. I think it was the inner track next to Gowler’s fence. I know that there are houses along the river bank. [B]254 I went up to Sayer’s house, got a pair of shoes, and after Mrs. & Mr. C. had had their dinner started off.” ¶ “When I waited for Mr. C. to overtake me, the weather was not clear, but on our return up the weather was clear. The distance from the road where I and Mr. C. turned off the road is about the same as from here to the gate of this Court. The carts were passed before we saw them, and by the people in them turning to look at us I knew them. When I first noticed the carts I was half way to the road. He lay with me in the bush. He lifted his hands and said: ‘Good God – did they see us?’” ¶ “I never slept in Mr. C.’s porch I never had connection with Wm. Sharp. I turned back from following Wm. Sharp into the stable. Mr. C. never told me that he suspected I was the person who frequented his byre. I never said

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to Betsey Boubée that I wanted to marry John Favel, nor did I ever lay with him. I asked Benjn. McKenzie to stay at my father’s house.” ¶ “I got £4 from Mr. C. when I went up with my mother. It was near three o’clk., and we went up to the McChoristers. Mr. C. was, and Mrs. C. was not, at home. I got dinner at McChoristers. We tied our ox with a long line. This was the time I got the £4 from Mr. C. He had short[ly] before returned from the hay [cutting]. My mother asked me why I got the £4. I told her it was at his place I had got sick.142 She said nothing.” ¶ “I was very unwell when I left. I think I mentioned it to some one at C. Fidler’s, but cannot say to whom. It was 3 o’clock when I reached home. I spent £3 at the Lower Fort, a little more than £l at the Upper Fort.” ¶ “I never asked P. Fidler to lay with me.”143 End of 2nd day.144

3 rd day: 145 21 st day of Feby., 1863 146 Mrs. Catherine Thomas sworn:147 “I know Mr. Corbett. My daughter was in his service, and she came back in the summer. She is now in the 16th year148 of her age. She was spitting blood. She had very bad looseness. She did not inform of it but I [B]255 perceived it. And she remained in that state till Dr Bird attended her. Her gut would come out. Mrs. Leask came home with Maria.” ¶ “Mr. C. came to my place the week after. My son Thomas told me he was coming. My husband crossed him. Maria my daughter was in the house when he came in. I went out as I was cooking. My daughter Betsey and I went in. On my going into the house the second time, when I heard Mr. C. asking Maria for grease, I said: ‘There is no grease, but there is some oil.’” ¶ “Some long time after I went to get in, but the door was fastened. I heard a shriek.149 I found the door fast two different times that I went to get in. Afterwards Betsey opened it and asked for warm water, which I gave to her. And Mr. C. told me to prevent Betsey from washing and hard work as she was 3 months gone with child but, for Maria, to make her work hard, as it would work out all her sickness. I said I could not make her work.” ¶ “When I went in, Maria was on the bed, but when I went out she was standing, and asked me for water, and to be turned. She told me Mr. C. had put his hand up her privates, and had told he did so to bring on women’s troubles.”

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¶ “After Mr. C. had washed I gave him dinner, and afterwards he, Mr. C., and my husband went to take a walk. But I gave Mr. C. a glass of wine first – which I had purchased out of the £7 Mr. C. had given to Maria before leaving his place. On his return from his walk he slept till I was cooking supper. My husband crossed him [over the river]. Before leaving he asked for pen and paper, and wrote to Mr. Hunt. I carried the letter and delivered it to Mrs. Hunt.” ¶ “Some time after this time I went up to Headingley with an ox and cart, and on my way up slept at Mrs. Ross’s, and from thence to Mr. C. He was not at home, and we went to the McChoristers, and came back again towards evening. When Mr. C. saw me he told me to say, if Mrs. C. asked about the boards: ‘All Right.’ Mrs C. did ask me about the boards, and I replied: ‘All Right.’ We went out to the field, and I saw Maria on one side of the fence and Mr. C. on the other. I saw him give Maria something, and afterwards Maria [B]256 shewed me £4 that she told me Mr. C. had given her.” ¶ “We went to J. Taylor’s to sleep. Mr. C. shortly after, while I was sitting on a sofa,150 came in, and Maria went out, and I went after them. And while sitting on a sofa at the outside of the door Mr. C. said to me that he would engage my husband and family to get boards and shingles, and he would pay for them through Mr. Hunter so that Mrs. C. should not know.” ¶ “We went the next morning to Mr. C., and John Taylor came there also. Mr. C. came into the room and took me and Maria and Mrs. C. into another room. I saw John Taylor with a paper, and he read it to us, and told Maria to repeat after him, which she did. He (Mr. C.) gave Maria a vial and some pills, with directions how to use this medicine. She took the liquid from this vial. The liquid was like brandy and stained her mouth and spoon. When the liquid medicine was done she took the pills, and continued doing so some time, but they purged her very violently. Mrs. Leask said we were killing Maria by using them, and we threw them into the fire. Maria became very weak after leaving Mr. C. the last time. I was obliged to bathe her every night.” ¶ “I remember [when] John Taylor came to my house. I asked him what he came for, and if Mr. C. had sent him. He said ‘Yes!’151 I said: ‘Does he deny that my daughter is in the family way by him?’ John Taylor then read the paper he had made Maria swear. Maria then said if she had known what the paper contained she would not have consented to sign it.152 J. Taylor gave me 4/ to buy some few necessaries for Maria’s confinement.” ¶ “The liquid I got from Mr. C. he got from Doctor Schultz. When my Maria’s term was up I was there, as he had sent me a note stating that

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Maria’s time was nearly up, and that he would like to have her for a while longer. But Maria would not engage. I never knew that Maria was pregnant till my son went up with a letter Maria had [sent?] to Mr. C.”153 [B]257 Elizabeth Fidler 154 sworn: “I know Mr. Corbett – saw him at my mother’s at Mapleton.155 I cannot tell the month. I knew he was coming – my brother Thomas told me so. I do not know that I went to my mother’s because he was coming. My sister Maria was there.” ¶ “I saw an operation performed by Mr. C. on my sister. He told her to lay on her left side with her knees to her chest. He then tucked the sleeve of his coat on the right hand side. And greased it [his hand] with castor oil as far as his wrist, and then pushed his hand up Maria’s private parts. This was in my father’s house, which is a small one. The bed is on the south of the house. I was sitting on a box between the table and bed. I could see the operation. He put up his hand and kept there a good while. He was moving his hand forward upwards into her private parts, turning his hand round. My sister seemed to suffer during the time: she shrieked and groaned. She straightened herself, she asked for water, and I gave it to her twice. I did not see him take out his hand, but after he had taken it out I saw him looking at it. He then asked for warm water to bathe his hand.” “I have children (four). I was never assisted by a medical man in my confinements. He [Corbett] did to me exactly as he did afterwards to Maria. I told Mr. C. I was unwell – and was worse after Mr. C. had operated upon me.” ¶ “I was once at St. Andrews, and I cut wheat for 3 or 4 others. I went to the fishery. The first time the doctor (Bird) came to me I did not inform him how I had been examined by Mr. C.; but the next time I did. I came from York Factory in the boat. I went up once to Headingley, but I never received into my own hand any remuneration for services en route from York Factory. My husband got 16/ from Mr. A. Mowat for our pay. I never got any medicines from Mr. C., although he promised me some.” Doctor Curtis James Bird sworn:156 “I have heard the evidence of Maria Thomas. The effects of introducing the finger into the vagina towards the os uterus will cause abortion by [B]258 scratching the os uteri. The effect of the medicine argote of rye: it is sufficient to produce abortion. I heard Maria say she vomited it up. It is not usual to administer it in cases in suppressed menstruation. My opinion is that the wire and finger were to produce abortion. I don’t know that the treatment is ever acted or practised in the manner described by Maria. Dilitation [sic: dilation?] of the womb is

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not necessary to the case to cause abortion. The medicine last mentioned by Maria [blank] has a rough taste. I know of no other medicine that could operate about the third month – it is the easiest. I know of no disease where an operation of the kind related157 would be practised as stated by Maria. The medicine morphia administered to a virgin after severe laborious exertion would cause unconsciousness for a considerable space of time.”158 End of the 3rd day159

4 th day of the Sittings: 23 rd day of February, 1863 Mrs. Samuel Leask sworn: “I know Mr. Corbett. Maria Thomas is my sister. She entered Mr. C’s service on the 1st April, the year before last. Mr. C. has been only once in my house – towards spring last year. I cannot say exactly say when, but think it was February or March. There had been a clerical meeting. Mr. H. Cochran was with him. He told me it was at Maria’s request that he came. He said Maria told him to be sure to find me. Mr. C. then said that since the holidays Maria is not so attentive as before.” ¶ “I did not see her again till June with A. Fidler. She remained a few days with me. She had no medicine, but she had money. She told me she had £7. She said she had spent some of it at Upper Fort Garry. We left my house between 9 and 10 o’clock. We rested several times before reaching the Lower Fort Garry, where I purchased some articles. We arrived at my mother’s about 3 p.m.” ¶ “The next time I saw her was in July – after Mr. C. had been down. She seemed very weak. She remained about a week and a half. Mr. Fidler told me that Mr. C. had been down. Maria told me when she returned to my house on the Saturday [B]259 following the General Court in August.” ¶ “Maria had then a bottle of medicine. I did not see any other kind of medicine. It was a bottle like the one now shewn me. She took this medicine while at my house. There was a little left in the bottle. This medicine discoloured the spoon, and I had difficulty in cleaning it off. She had a warm bath while at my house. She sat her lower part in the bath. She told me she had been told to bathe 2 hours at a time.” ¶ “I never sent Maria any present while at Mr. C’s. I gave her a muslin gown before she went to Mr. C’s. Maria is now about 16 years of age. She was not 15 till the May following that she went to Mr. C’s. She was nearly a year with me. I went down with Maria after she and my mother returned from Mr. C. She was then very weak.”

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Cross-examined by Mr. Ross: “I returned the same day that I went down with Maria. John Pruden crossed us over to my mother’s. Maria asked me to rest sometimes. I did not see her spit blood. I saw the money she said Mr. C. had given her. I thought it might have been stolen; therefore I put no question to her. I am certain there was not £7. My husband bought land from my mother, and paid £6 for it before Maria entered Mr. C’s service. I do not remember to have said that Maria was a foolish girl, and it would be better for her to stop at a good place. My husband never wrote to Mr. C. I cannot remember160 my sister being at the nunnery. I remember Nancy Lyons being with McLean’s family. Nancy Lyons never told me anything of Maria’s conduct with the soldiers. It was the 1st of June that I left the Fort. I did not ask my sister anything about the money – she told me herself she had got it from Mr. C. I cannot say how long I was going to my mother’s. The reason for resting was Maria’s breathing and sore side. I remember Mrs. Foubister saying Maria was behaving badly. I suspected she was in the family way. No-one ever consulted me. Maria never told me who the father of her child was.” [B]260 Doctor Cowan [was] sworn, and deponed that he had heard Maria Thomas’s deposition in the Court as respected the description of the medicine boiled in a saucepan. “I cannot say whether that medicine was ergot of rye, but there is nothing in her description that is inconsistent with its having been so. The ergot of rye will produce abortion – in labour the ergot of rye is administered. It is sometimes used by some in the suspension of the menses. I have heard of it having been given to bring on the menses, but I have never used it. It is frequently used to bring on abortion – the use of it might bring an irritation of the parts.” ¶ “A man’s finger may reach the os uteri. The use161 of the operation with the wire was to cause abortion by puncturing the membranes. The medicine in the bottle, [I] cannot say what it was. If the tincture of iron, it could not have been taken, as 10 drops diluted in a glass of water was too much for a dose. Ergot of rye is sufficient to produce abortion, given in sufficent quantities. Aloemetic pills might have caused the protrusion of the gut. Tenesmas is the term, and [h]as a tendency to abortion when the tendency is inclined. Never medically administered, but [used] popularly frequently.” ¶ “The introducing the finger into the os uteri was for the purpose to procure abortion – or it might not, supposing this is fact [sic].162 The object in view in the operation – I can only give my opinion medically, and the only reason for the above was to ascertain whether she was with child. It is not customary to perform this alone. I do not think that a person in her

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position in society could have invented all the descriptions she has given of the operations.” ¶ “Fatigue and laudanum would cause the patient to sleep so sound as to admit of a man to have connection with her, more particularly a virgin. Pain may be experienced the next day. A person of weak health, having ceased her menstruation the day before, might have come on the day after. It is the presumption that a virgin might have passed blood. [B]261 It is possible that he put his hand up her vagina.” ¶ “All that is represented by Maria as having taken place might have been, and yet produce her child. The regular [term is] 280 days, but to date the time to the 3rd of January I decline to answer. Cannot say what [way] a warm bath might affect her – cannot say, but supposing all these things to have taken place, my opinion [is] that it was for the means of procuring abortion.” Mrs. John Atkinson sworn: “I know Mr. Corbett. I was once living at Headingley. Last June I left Headingley in company with my brother Donald Gunn, my stepson George Atkinson, and sister-in-law. On my way down I saw Mr. C. and his servant girl Maria Thomas. He had an umbrella in his hand. They were on the outside of the track. I cannot say if there was any road there. They were coming from the outside of the track. I do not know if she was carrying anything. She was holding up her dress. The weather was showery. The place where I saw them was a little below Gowlers. I cannot tell what the distance might have been when I first saw them. They were before me. I saw the black merino dress, which she said she got from her mother.”163 X-examined: “It was summer season [when] I first saw the black merino dress, and she told me Js. Foubister’s wife had made it. I know the time by the date my husband left me – and counting from that date I am sure. I knew the person I saw was Mr. C. He had on a black coat. When he was opposite they were 20 or 30 yards distance, but cannot say exactly. My little stepson said: ‘There is Mr. C. and his wife.’ I told you (meaning Mr. Ross), and I also told my father when I arrived at home. There were some grey willows. What other willows may be there cannot say. As far as I can remember it was showering. Mr. C. used his umbrella as a walking stick.” Donald Gunn 164 sworn: “I know Mr. Corbett. I came down with the former witness, who is my sister, from Headingley. I knew the man to be Mr.

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C. I had known Maria about 7 years [B]262 ago, when she was a girl. Mr. C. had, to my apprehension, an umbrella. It might have been a staff. They were coming towards the track when we came opposite to them. They might have been 100 yards from us. G. Atkinson said it was Mr. C’s wife Maria Thomas – his wife.165 They were not in the road I was in. The road, if they were in one, ran in a strange direction. They might have been 100 yds. from us, more or less. There was willows where they were walking.” Joseph Berston sworn: “I know Mr. C. I was in his service [from] the 1st day of Feby. 1862. I cannot say I saw anything wrong with Maria and Mr. C., but I have often seen them talking together out of doors, and in the byre. There was a loft in the byre made of rails, and hay on the top. I never went up in the loft. Mr. C. told me there was land across, and he would assist me.166 I never saw anyone coming to see Maria. I know she went once to Mr. McKenzie’s, and it was late before she came home. I never remember her being away while I was there at Mr. C’s, but this time. I was at Mr. C’s one month and two days. There was no loft in the stable, but there was hay there. There was a short ladder. I thought it strange that the master and Maria were always talking together. I never saw any person at the byre or stable, but could see marks on the hay in the stable as if someone had been sleeping or reclining on it. Saw the track once of a cariole and horse which had been stopping at the stable door.167 One night Mr. C. made me cut out a pattern of the footmark, and of the horse’s also – and measured the width of the cariole. Doctor Schultz came to see Maria, who was sick in bed – one day before he came, and two days after. February was the month I was there.” Oliver Gowler sworn: “I have been a friend of Mr. C.,168 and have been in the habit of assisting him. On one occasion that I was there Maria accompanied me to the door. Mr. C. was outside. I returned after a while, and saw Maria and Mr. C. still standing together. It struck my mind that it was not [B]263 altogether right.” ¶ “The Tuesday after that, on the 9th of December, (The Deponent here explained he meant ‘after Mr. C. had been apprehended’) I went up into the loft of Mr. C’s stable to look for the hole I had heard Maria state at Mapleton that Mr. C. had made there to look towards his dwelling house. There was a hole, and it had been bunged up with mud. It looked toward Mr. C’s house, and if I could have seen through it I make no doubt I could have seen all about Mr. C’s house in a line straight with this hole. The mud was soft on the inside of the building.” ¶ “I was sent for one evening to Mr. C’s, and he asked me what I thought of this business, and said: ‘What shall I do?’ I told him from the information I

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had heard I could only say [that] if he was innocent he had nothing to fear. Mr. C. said he feared he would be crushed. I said if he knew himself innocent he ought not to run for it, but stand his trial.” ¶ “Mr. John Taylor told me that John Favel had paid him 20/, and he told that Favel had been sent for, and that he knew nothing of having criminal connection with Maria. I saw Favel on the morning I drove down with Mr. C. – the day he was apprehended. On our way down he [Corbett] told me that he had a little property in Canada, and had made it over to Bishop Anderson. He told me [he] had been over to Mr. L. Hunt [the lawyer] and given a full statement to him – and told him after he had made the statement that: ‘If he could not clear me I would cut for the States.’169 Favel was in [the] evening questioned concerning Maria, and he stated he knew nothing about the girl, nor ever had had carnal connection with her. But the very next morning he knew all about her, and said he had carnal connection with her.”170 Mrs. John Taylor [was] sworn, and stated she remembered: “when Maria and her mother came to my house last summer, about 3 or 4 o’clock. They went off, and came in again, in the evening from the McChoristers. Mr. C. came into my house about half an hour after them. He said he came to see my husband about settling the business about the reports that were going about. I swear that Mr. C. said nothing more than: ‘You are here’ to Maria and [B]264 her mother. Mr. C. said he could not stay. I never said to anyone to the contrary of these words. I[t] was about 8 or 9 o’clock pm when they came in from Mr. C’s. When Mr. C. came into my house the candles were lit. Mr. C. said he would not stay, as my husband was not at home. There was a sofa by the kitchen window outside. Mr. C. may have stayed an hour.” ¶ “While Maria was at Mrs. Corbett’s, she came to me stating Mrs. C. had told her to get 2 yds. of print to make her a jacket. She also told me her sister Mrs. Leask was dead. These are the two lies she told me. I heard Betsey Boubée speaking with Maria about Mr. C. I heard Betsey asking her whether she, Maria, had carnal connection with Mr. C. I am not aware that young men were shut up in my house. Not one word was spoke to Maria by my husband when he returned. He said to me he thought it was 10 o’clock.” The Reverend Henry Cochrane, sworn: “I was at Mr. C’s 11th June last, and Mr. C. requested me to speak to Maria. He wished me to advise her to remain and marry J. Chamberlain. The place I spoke to Maria was between the byre and the house. I never had reason to suspect any irregularities. On the night of the meeting of the magistrates I saw a Bible with a testimonial, and I doubted if Mrs. C. knew where it was.”171

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Joseph Sayer, sworn: “I know Mr. C. and Maria Thomas. I remember walking down to the French church with Maria. She had a bundle. She saw a man coming after us – Maria said it was Mr. C. She said: ‘Go on and I will wait for him.’ [I] saw the man come up to Maria, and then she came after me for her bundle. She returned, and I saw them go off from the track.172 I saw them standing. I saw them standing from the track. As far as the prison gate from here I was. I afterwards saw the man in the bush. I saw them standing. I then came straight down to McDermot’s. I live near to Mr. C. at Headingley. I never saw anything wrong between Mr. C. and Maria. I was staying behind – I was hiding. [B]265 The last I saw of them they were in the track talking – not high enough for me to hear what they said. After that I went straight down. I solemnly swear I never had carnal connections with Maria. I have two or three times felt her and uncovered her, and have laid alongside of her. I never in my life touched her with anything but my hand.” Frances Gibson, sworn: “I was servant to Archdeacon Hunter, and on the 9th of last July Wm. Sharp came down to St. Andrews and told me that there was ‘fine talk about our minister, who has got his servant maid with child.’ I told him in my fun173 that Maria had a son. He replied: ‘If it is true it must be Mr. Corbett’s, as he was busiest about the girl. I have an idea that this is the reason he wanted me to marry the girl.’ I do not remember Billy Sharp saying that he was ‘in a bad fix,’ and that he must give an account of himself.” Here ends the 4th day

5 th day of sittings: February 24 th 1863 John Taylor 174 [was] sworn, and deponed175 that he knew Mr. C. and Maria Thomas. He had seen them walking together several times. “I remember Maria and her mother sleeping at my house. I came home that night about 10 o’clock, more or less. I did not see Mr. C. that night. My wife told me Mr. C. wanted me to swear Maria about some reports about Mr. C. having had connection with Maria. I got a note next morning, asking me over to his house. He told me this was an opportune occasion to get the girl to swear he never had any carnal connection with her. Mr. C. desired me to copy the oath, and gave me a paper with the heads of the particular points of the subject. I do not recollect the exact words. It was an affidavit.” ¶ “We went into the inner kitchen. Mrs. C. and the two women were there. Mr. C. and I joined them, and before I administered the oath I explained the nature of it to Maria. Before she signed it176 she said nothing – did not open her mouth – and I inferred that she understood it. I thought it was

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the usual way of taking an oath.”177 The Witness declined answering the question of whether he had at any time administered [B]266 an oath in this manner before.178 ¶ “When these reports were prevalent he, Mr. C., followed it up; and finally it came to an Indian woman about a kiss. Mr. C. did not explain to me, because he was aware that I knew the whole of the reports. Mr. C. came to me, and read to me part of a letter of some facts concerning Simon Thomas. Mr. C., asking my advice, said: ‘It appears I am to blame for keeping the girl so long, and in taking her in my carriage.’ He asked me to go down in a friendly spirit179 to see the old people: ‘It will be of no use to blare it abroad – the mother told me that the child would be born in two weeks.’ As I went down I slept at my father’s, and stopped at the Stone Fort, and then at Thos. Bunn’s. On my return I called at St. Andrew’s, where a public meeting was about to be held.” ¶ “When I was down at Maria’s place she said she never [had] been with a young man, or she would have charged him with her pregnancy; but: ‘It is Mr. C.’ And as [for] Mr. C. not having gone down when the Bishop sent for him, the charge appeared too true. This is what Mr. Hunter180 said before entering the meeting. Mr. Hunter said he had been down to the girl. I indiscreetly told Mr. Hunter that I had been down to find out some young man. I do not now recollect that I said anything of my instructions. I called on Mr. C. on my return, and informed him that I had heard a very dark future of him below. He said: ‘Is it so?’” ¶ “I saw J. Favel on the Friday evening. On the Saturday he told me181 that the 10/ or 11 shillings he owed me he would pay me – which he did. It did look rather strange, but he had told his father-in-law that he had borrowed it from a friend.” ¶ “I do not recollect if Mr. C. gave me instructions. Mr. Hunter did try to get out from me anything against Mr. C. He did not rest satisfied when I told him I knew nothing, but he still pressed me. I undersood a little of the nature of his trip. Mr. Hunter went up as far as the Revd. Mr. Taylor’s.182 Mr. Taylor went up to Mrs. C. and delivered his message – which was for Mr. C. – urging him to fly the country. The reason Mr. C. said he would not fly was that he was innocent. Mr. C. never said to me, in any case, that he would fly the country.” [B]267 James Tristam, sworn: “I know Wm. Sharp – saw him at [the] steam mill. And in conversation whether he had been down to see his child, he replied he would make me answerable for this report. I afterwards saw

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him at a dance, and said to him I had heard he had changed his mind, and was now going to claim the child. He told me to mind my own business.” John Chamberlain, sworn:183 “I know both Mr. C. and Maria. Mr. C. saw me at Omand’s fence, and told me he had a servant maid whom I might fall in love with, and asked me up to his place. I saw him again at Bourk’s place. When I went up Mr. C. was not at home. Mrs. C. was in the kitchen. I was sent to take a walk with Maria, and we settled – only Maria wished her friends to know about it first.184 On Sunday, Mr. C. showed me the land, and told me that he had a raft [of lumber] coming down, and I should have some of it,185 which I could work for.” ¶ “The next time I saw Mr. C. was on the ice. He said to me: ‘The Bunns [the Prosecutors in this case] are coming up to address you. Say nothing to them unless they go to your place.’ He also asked if I had got a slip from Js. McChorister. I said no. He said he had another slip.” ¶ “About two years ago, Mr. C. advised me to marry a Protestant – and he advised me to settle near him. He was always kind to me. Mr. C. said that Maria’s friends were wishing him to get Maria married.” ¶ “I know Betsey Fidler. I had a half bag of pemmican and some flour on my way up from York Factory. Mr. A. Mowat and his wife were in the boat. I had an overcoat, which I missed. I saw Betsey Fidler put something in her blanket. I looked in it and found my coat. Mr. C. told me not to speak anything of this case – only in the Court.” Reverend Henry Taylor:186 “I recollect Mr. C. coming to my place last summer with his servant. It was raining. I was rather surprised. I heard from Mrs. Taylor, my wife, that Maria had got a great deal of money in her possession, and that she had lost £7, but had found it again at the Fidlers’. She, Mrs. T., mentioned this circumstance to Mr. C. by asking him if Maria had much money coming to her. He, Mr. C., said: ‘Only a few shillings.’ Mrs. T. wrote to Mr. C., stating187 [B]268 that Maria had lost and found £7.188 He, Mr. C., wrote to me on the subject: ‘Did you say that I had given the girl £11, for I find by my books that I have given her between £7 & 8 pounds.’ I never wrote to my brother ministers concerning this.” ¶ “I am aware that an offer was made to Mr. C. to fly, but he hesitated – he ought to have obeyed. The recommendation was unconditional – I would rather say it was a direction.189 I might have recommended to him, and have said: ‘If you are guilty of what you are charged with, I should – if I was charged with it – I would do so.’”

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¶ “I have never to my knowledge took my servant maid in my carriage. I occasionally find it necessary to see my servants in the byres to carry on my work.” Mrs. William Tate, sworn: “I know Mrs. and Mr. C. I know that about the latter part of July Mrs. C. came to my place. Once before she came, and she had some cherries. She came from Sharp’s. I did not know she was on that side of the river. She had crossed over at Stevens’s on her way down, and went to the other side again from my place. On the second occasion, Mrs. Sharp’s child was baptized – this child was born at the time the ice was going away. The berries Mrs. C. had at my place were perfectly ripe. Mr. Whitford was not at my house that day – it was before Mrs. C. was there. I am quite sure it was before. I cannot say what was the nature of the business of Whitford with my husband. He said he had seen Mr. C., but I did not hear him say he had seen Mrs. C.” ¶ “I have sometimes seen Mr. C. and Maria going to the byre together about the time of putting in the cattle – saw them sometimes in the morning and sometimes in the evening. I saw David Tait with Whitford when he came to my house. I cannot remember whether Whitford said anything about having seen Mrs. C. I was at Mrs. Sharp’s when she was delivered. Mr. C. said if he had instruments he would use them in that case.” Mrs. Oliver Gowler, sworn: “I know Mr. C. and Maria. About the middle of June Maria came to my house and said she came to wait for Mr. C. She did not tell me she had left. When at Mrs. C’s the night Mr. C. was taken, I heard Mrs. Taylor say that when Maria came up for her box Mr. C. and Maria were sitting together. Mrs. Hall said to Mrs. Taylor: [B]269 ‘Do you say they were sitting together?’” Mrs. Stevenson, sworn: “I was at Mrs. C’s on the evening spoken to by the preceding witness, and I swear Mrs. Taylor did not say anything to Mrs. Hall.190 Had Mrs. Taylor spoke these words I should [have heard them] from where I was sitting. Nor I did not hear Mrs. Hall speak. I am perfectly sure that these words were not used.” Ann Fidler, sworn: “I know Maria Thomas. I saw her last June. She lost £7.0.4, which money she said Mr. C. had given her for James Fidler, and that it was for shingles.” Alban Fidler, sworn: “My son finding [sic: found?] beyond C. Fidler’s £7.0.4 in one pound notes, and in copper fourpence.” Andrew McDermot Junr., sworn: “Before there was any stir about this case – about two years ago come next spring – I saw a carriage with two

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grown-up persons and a child opposite my house. I do not know if it was his servant. The carriage was standing about 100 yards from the road, and Mr. C. sitting on the ground. It was a woman and child who were in the carriage.191 I did not see the carriage come there – I only saw it there. I am sure it was Mr. C. He was sitting along the bushes – there was bushes where the horse stood on the edge of the bushes. Robert Bird was with me. I swear it was Mr. C. The carriage was between me and them.” Alexander Fidler, sworn: “I know Mr. C. and Maria Thomas. They came together to my father’s – wanted me or my brother to go down on horseback with Maria. We stopped at the Upper Fort Garry, where she alighted and made some purchases. We eat some gingerbread she had bought. She appeared quite well: appeared smart and was cheerful. We rode pretty hard. She got on the horse herself. She told me she was taking down money to James Fidler for shingles and boards. She complained of fatigue when we arrived at Leasks’. Maria did not express any desire to go into the bushes with me.” Mr. [W. J.] McLean, sworn: “I know Maria Thomas and Mrs. Leask came to the Lower Fort on the 20th June. Mrs. Leask was the real purchaser. I did not know Maria Thomas then. Three days after – on the 23 June – she and her mother came to the Fort and bought [B]270 property as follows: on the 20th June £2.15.6, on the 23rd June £1.17.4 (this was read from the Compy’s Prompt Sales Book). On the 23, the mother told me that she, Maria, was spitting blood.” James Fidler, sworn: “I know Mr. C. – saw him last summer at Mapleton, after 6 o’clock in the evening. I never at any time made any contract with Mr. C. I got from A. Mowat some goods for having cooked for Mr. C. on his way up from York Factory. I do not know what my wife went up to Mr. C. for with her mother. I told [her] to enquire of Mr. C. if he was going to build a church; and if he said that he was to ask him for an advance, and I would give him shingles. When my wife came down she told me that Mr. C. had said he would tell me when he came down, but he never came to me.” ¶ “It was after 6 o’clock I saw him at my father-in -law’s place on the bank. I cannot say if I saw Maria that evening. I did not tell my wife how much to ask of Mr. C. I got a stove from Sheal, and paid him £4.10.0. And the £2 remaining you (Mr. Ross) drew up a promissory note to pay on a certain day, and if I did not do so you (Mr. Ross) would pay it.192 I remember going to Thos. Gardener’s with a letter which my mother gave me. He (Gardener) told me at once it was not for me – it was for Maria. I swear Gardener never told me there was money in the note for me. I never said I was to get 3,000

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shingles. I know that Simon Thomas brought 4 long poles for Mr. C. I swear that I never had any contract with Mr. Corbett.” Nancy Ross, sworn: “I know Mr. C. I saw him once before at Mapleton. I do not live there. Mrs. Simon Thomas sent for me to weed. I saw Mr. C. and Simon together. They returned. I saw Mr. C. going home in the evening.” Robert McBeath, sworn: “I know this to be the warrant I issued against Maria Thomas. It was on the Saturday.” On the strength of the information, he would give [the opinion]: namely that she Maria Thomas – on two several occasions – she had sworn falsely.193 Here ends the 5th day.

25 th day of February, 1863 – 6 th day [B]271 The Venerable Archdeacon Hunter, sworn:194 “I know Maria Thomas, and saw her before legal steps had been taken against Mr. Corbett, because Simon Thomas had lain a complaint195 against Mr. C. that Mr. C. had got his daughter with child. I went down on the 24th. I found her in bed. She told me she was with child by Mr. C. I warned her to be careful of what she was saying: ‘As a Minister of God he will put you and your whole family into prison.’ She did [not] say anything concerning the [current] charge against Mr. C.”196 ¶ “I asked J. Taylor in the schoolroom where was Mr. C. I also asked him if he knew anything about the charge against Mr. C. I asked him if Mr. C. was innocent or guilty. He said guilty. I asked if Mr. C. had confessed it. He said yes. I was anxious to know the words Mr. C. had used. J. Taylor told me that Mr. C. had told him at his, J. Taylor’s house – outside where he [Taylor] was winnowing wheat. [He] mentioned a letter he, Mr. C., had received from the Bishop. He said: ‘No doubt I am to blame, but go down and see if she can put it on anyone else, and tell the girl to keep it quiet, and come back as quick as possible. You know my bedroom, and tap at the window.’”197 ¶ “He, J. T., spoke of an oath he had shewn to her, and [told me] that she had said to him (John Taylor): ‘You know, I did not wish to swear to that, but I intended to swear about the Indian woman.’ Then John Taylor shewed me the identical oath. He said he had copied it from Mr. C’s original.” ¶ J. Taylor & his wife were a long time outside at his house. “J. Taylor did not remain with me that night – the 27th. I saw J. T. the following morning – Friday – I called for him: the 28th. He accompanied me to the Bishop’s. I

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asked him to repeat the words. ‘No doubt I am to blame’ are the words he made use of. I went down officially; I had reported the result of my trip to Mapleton to the Bishop. A letter of Mr. C. to me of the 9th of June, which I returned to him, I know it to be the same. I swear most solemnly that I heard John Taylor say all that I have related.”198 Simon Thomas, sworn: “Maria Thomas is my daughter. I know Mr. Corbett. He came to my house last summer. I knew he was coming – my son told me so the day before. I crossed him, and we went to [B]272 take a walk. He, Mr. C., wished me to get my daughter Maria married to J. Chamberlain, and said he would give her half his lot: the upper side. He left at half past 6 o’clock. I crossed him.” “Before we went to take a walk I went into my house with him. I went out, and while I was outside – and while there – heard a cry from my child. I heard a noise. I knew it to be Maria’s voice. It was about 10 o’clock when Mr. C. came.” ¶ “I made a bargain for 100 plank[s], but no boards or shingles.199 My son got half a bag of pemmican, and a bag of flour, and 6/ in cash. When the whole of the plank [order] was delivered, my son spent this 6/ at Lower Fort Garry. I got 20/ for 4 long poles. I took 100 plank[s] to Mr. Hunter’s.” ¶ “When I went inside of my house after I heard the cry, I saw nothing. At first I could not get in. When I got in, I saw Mr. C. bathing his hands. Maria told me she was in the family way. I sent a request to Mr. C. for an advance for timber or labour. Maria sent a letter, and my son took advances of 20/.” ¶ “I remember the magistrates coming down: Mr. Sinclair and Mr. Gunn the first time. I told Mr. Sinclair that my daughter wanted to see him – the day of the Council this was. I spoke to the Bishop.” Does not remember having said to anyone ‘that had Mr. C. advanced property he would not have brought on this case.’ Doctor J. Schultz, sworn: “I was requested by Mr. C. to examine Maria.200 Mr. C. told me he had examined her himself. Mr. C. purchased from me the wine of ergot of rye in June 1861.201 If I had my books I could fix the date (books sent for). I forget if I gave a bottle or not. The one shewn me is the same as I had. The wine of ergot of rye is not so strong in that form. Mr. C. wished me to examine [the girl] as I had a stereoscope [sic: stethoscope?]. There is very little taste with the wine. It tastes very much like alcohol. I think Mr. C. purchased also tincture of iron. The colour of tincture of iron is a dark brown or red. From 10 to 30 drops is a dose.202 60

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drops may be taken by a healthy man, but would be too much for a woman. (After seeing [his record] books) I find that I sold Mr. C. the ergot of rye wine 29 June 1862 – two ounces. The largest dose used is a dram. Mr. C. did not explain why he purchased it.” [B]273 The Defence here commenced, for which see the [new] Court Book. W. R. Smith, Clerk of the Court [C]1203

General Quarterly Court – 25 th February, 1863 6 th day of sitting continued in: The Queen versus Revd. G. O. Corbett (See commencement of this trial in last Book: 25 Feby. 1863) Defence [Address to Jury]:204 [James Ross purported to be caught off balance by the closing of the Crown’s case because his senior counsel, Frank Larned Hunt, was not in the courtroom; and it was Hunt who had been expected to make the defence address to the jury – an address which, by the procedure of the day, was required to be made before any defence evidence was called, rather than at the close of the evidence. Claiming that Hunt was “absent from illness,” and that he, Ross, was not prepared to make the address, the young amateur advocate requested an adjournment. Prosecutor Thomas Bunn objected, the court wavered, Bunn objected again, and Ross finally relented: “No doubt I am, in a certain sense, prepared. I am intimately acquainted with the evidence ... I will not put the Court to the necessity of deciding the point. I shall go on.” He then made a splendid five-hour extemporaneous speech, which was reported, like Recorder Black’s charge and a portion of the Crown address, in the Nor’-Wester but not in the official court record. Because of space considerations, what follows here are only selected extracts and paraphrases from the Nor’-Wester account.] “Mr. James Ross rose and said: ‘Gentlemen of the Jury: I ... am called on, most unexpectedly, to address you on a very long, very important, and very complicated case.’ ‘Gentlemen, this is no ordinary trial ... A clergyman of very high social position and hitherto unblemished character is the person accused – and the crime charged is one of the most degrading and revolting in the whole criminal calendar! Happily for Red River, this is the first time such a charge has been made against anybody before this tribunal, and happily this is

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the first time a minister of the Gospel is a prisoner at the bar. May it be the last! ...’ ‘If Mr. Corbett is guilty – and I cannot for a moment believe he is – then the pressure of his own aggravated iniquity must rest upon his own head; but if, as I believe, and he is an innocent man wrongfully accused, then dreadful is the responsibility of his accusers, and Providence will yet mete out to them with the sword of eternal justice the due punishment of their high crime ...’ ‘Utter ruin stares my client in the face if the allegations of Maria Thomas and her family are to be credited. He will become an outcast – his own peace and that of his family will be forever destroyed – his name it will be a byeword – and his future will be fraught only with misery and degradation. Is this a result, gentlemen, which you are prepared to entail upon the Prisoner on such confused and contradictory evidence? Will you assume the responsibility of ruining a fellow man upon the testimony of a lying girl, supported by a mother and a sister whose veracity is as questionable as Maria’s virtue was easy? ...’ ‘Bear in mind that you have nothing to do with the question whether there was carnal intercourse or not – this is not to charge ... Of course it has a bearing on the case, but your verdict must have reference merely to this point, namely: whether Mr. Corbett did or did not attempt to procure a miscarriage.’ ‘If I have said that it is the experience of other countries that foul charges against innocent men can be plausibly and successfully made out,205 do not understand me to mean that in the present instance there is anything of a political conspiracy. This has been very generally suspected and repeatedly mooted. But, gentlemen, I disclaim any such imputation, and I cannot resort to such a defence in the face of a formidable array of hostile evidence. I accept the case as it stands, and shall, in the true spirit of professional propriety, argue it upon its own merits.’”206 [At this point Ross began to refute the Crown evidence, both by attacking its inconsistency or implausibility, and by describing the offsetting evidence his defence witnesses were expected to provide. The presentation was so well ordered and so thorough that it is difficult to believe Ross did not fully expect to have to step into the breach in Hunt’s place. It was a brilliant analysis – damaging to, though not destructive of – the Crown’s case. It is highly doubtful that Hunt, or any fully qualified barrister, for that matter, could have done better. Ross was not always fair. In the course of making the legitimate points that there was a suspicious uniformity to the Thomas family’s evidence; that they appeared willing, if not anxious, to be bought off; that Maria Thomas appeared less injured

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by Corbett’s alleged “operations” than she claimed; and that she was a very highspirited, mischievous, sometimes untruthful girl, Ross thoroughly blackened Maria’s character. He called her “depraved” and a “common prostitute,” and deplored “the audacity of her lies.” Rubbing the Bible across her chin had, he proclaimed, added “sacrilege to mockery” and “blasphemy to hypocrisy,” which should have disqualified her from giving any evidence at the trial. He also complained about the laws of evidence, which allowed her to testify, while his client could not. The latter disadvantage he skilfully counteracted by putting Corbett’s side of the story to the jury through a clever, legally dubious, oratorical formula: “If he were allowed to testify, he would say ...” Ross’s predictions of what defence witnesses would prove also considerably exceeded what they did in fact eventually testify to.207 While space limitations preclude extensive quotation here, a few items – Ross’s attack on Crown corroboration of Maria’s descriptions of the abortion efforts, his velvet glove treatment of Recorder Black, his subtle use of the Maria’s “oath,” and his peroration – all deserve verbatim consideration.] “‘One complexion of Maria Thomas’s evidence which has been strongly urged [by the Crown] is that it bears the stamp of medical knowledge which she, in her unsophisticated simplicity, could never have obtained without actual experience. It does partially bear that complexion; but you must remember that this girl was living in the house of a medical gentleman, whose table was ever covered over with works bearing on the very points on which she discourses so glibly, and with such repulsive coolness. Maria, as we shall prove, was a girl of lewd tendencies, and of a reckless, licentious disposition. Who more likely than she to pry into these books, examine the woodcuts, and read eagerly the details and explanations given? ... Mr. and Mrs. Corbett were frequently away – sometimes slept from home. What opportunities for her to revel in those improper delights in which an inspection and perusal of medical works would offer her? Half an hour would be sufficient for her to learn the few facts she has detailed with such pretended simplicity.’”208 “‘There has been a great deal said about the oath taken by Maria before John Taylor; and we have had very decided opinions regarding it from the Bench. Opinions vary regarding the Judge’s course in this matter; but for my part, gentlemen, I take this opportunity – and I do so in all frankness and sincerity – to bear my humble testimony to the uniform fairness of the decisions hitherto given by the Bench during this trial. I have the profound conviction thus far in my mind that we have received a fair play, and that the Court is honestly endeavoring to steer through this great trial with impartiality.’ ‘It has been stated by the Judge that this is no oath. Granting for the sake of argument that it is not such an oath as could be made the basis for a prosecution for perjury; still we must remember that we are all moral beings,

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and that when persons believe they are upon oath and solemnly call upon the Almighty to witness the truth of what they say, that is as certainly an oath in the sight of God as if it were taken before a judge or a court of judges ... [T]his girl, although she may escape the penalties of a cold conventional rule of law, is after all guilty of moral perjury ... I say it is a poor, poor, consolation – and a most deplorable defence – for anybody to say that the law cannot take hold of her. And if she swore to a falsehood once, she may do it again ...’ ‘[W]hen stress is laid on the want of formality, we must bear in mind the nature of the judicial system in this country. Local practice – precedent – is here the great guide. Our legal system is one peculiar to ourselves and admirably suited to us. Therefore we must not lightly, and without notice, take up and censure a magistrate because he happens to do things in the old-fashioned way of the place. There is no-one more anxious than I am for greater regularity in all our proceedings; and I rejoice to know that in this respect we have reached a turning point in our history – a stage at which court proceedings are assuming a more definite shape than in the free and easy days gone by. I am happy to see that form and regularity are being insisted upon by our present Judge. But, at the same time, it would be a matter of great regret with me if these desirable changes are to be obtained at the expense of my reverend client.’ ‘Gentlemen of the Jury, I need not go into further details ... I would only add a few words to yourselves directly.’ ‘You understand distinctly that the charge is one of attempting to procure miscarriage – it is not that he had criminal connection with her ... And I venture to say that, even limiting our consideration to the evidence for the prosecution, that charge has not been proven ... We cannot disprove what Maria says took place between them alone. All we can do is to test her credibility, and show the extreme improbability of the actual allegations ... In a case of this kind, gentlemen, you must bear in mind that if you are doubtful you must give the Prisoner the benefit of the doubt. And again, it is not from your own convictions or private feelings independent of the evidence that you are to decide the case. You must discard all impressions on your mind which are not based on the evidence.’ ‘A serious responsibility rests upon you this day; and, however long and wearisome this prosecution has been – and however long the case may last yet – I trust you will not hurry to your decision, for it is fraught with most momentous consequences for the reverend gentleman at the bar. What is life to him if his character is blasted, and the peace and happiness of his

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family forever destroyed? What more sad – more overwhelmingly sad – than to see the dear partner of his bosom in continual tears – plunged in hopeless grief – on account of anything done by you this day? And doubly sad would be their lot, and that of their innocent offspring after them, if the Prisoner should suffer, though an innocent man.’ ‘Gentlemen of the Jury, I beseech you – I implore you by all that is valuable in life, by all that is precious in domestic happiness, by all that is dear in an unsullied name, by all that is sacred in truth and justice – to pause before you consign the Prisoner and his family to obloquy and disgrace.’”209 [Here the court record recommences.] Peter Fidler, sworn, deponed: He knew Maria, “and on one occasion before she left Headingley she slept at my house. My wife was from home. I was in bed, she was at distance from me on the floor. She called me three times to lie with her. At last I went to her – she had her clothes up to her middle.” ¶ “I was about Mr. Corbett’s place, and while there she was always teasing me to evil. She was always following me about. The loft in the stable was shut close – full of hay, and the hay was not taken out in the spring. I know of no ladder being at Mr. C’s.” ¶ “At the latter end of her time she had a bad character for men. I can bring 5 or 6 men who have lain with her. I have sworn that I did lie with her, but I decline answering to the question of whether I had connection with her.” ¶ “I cut hay for Mr. C. on 21st August. It might have been the last of May or beginning of June when I went to lie with Maria. When we got home from the hay early, I saw Mrs. Thomas and Maria. I went [to] look at the wheat. When I came back Mrs. Thomas & Maria were off. I had been with Mr. C. to look at his wheat. Thos. Swain was with us. While in the field Mr. C. never left me. I got my supper at Mr. C’s, and Maria & her mother also. I remember Maria upset her tea at supper. We all observed it.” ¶ “I have seen Betsey Fidler come up there three or four times. Js. Fidler brought a note for advances to Mr. C. It was wrote by T. Bunn, and the 3rd time they had come. [sic] Js. Fidler is my cousin, & Betsey is his wife. Mr. C. came away from the hay about half an hour before me. I saw a ladder at Mr. C’s before Maria came. There [C]2 was a broken ladder at Mr. C’s. I do not remember to have seen a short ladder for going up to the loft. I cannot say from what day, but for the last three months I have seen the loft. In

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the daytime I went up in the loft to look for the hole in the loft. There was none. One place looked as if the plaster had fallen out, but not repaired. The poles in the loft for the flooring were not fast, but moveable. I was only up this time, with Mr. Chapman.” William Sharp, sworn: “I know Maria Thomas. The first time I saw her was at Mr. C’s, in his service. I have lain with her several times. The first time I had connection with her was about210 Christmas, the last time about the time she was about to leave Mr. C. Twice in the porch, twice in the byre, and twice on the river.211 She fetched out a robe and a pillow. It was by appointment the first time. I was going out to the woods. As I was passing I saw Maria at the byre. The next night I went, found her at the byre, [and] we went to Mr. C’s house, in the porch. She went to get a robe and a blanket. She said I was the first who had lain with her.”212 ¶ “I went and brought up 100 plank[s], and Mr. C. said he would require me to go again for shingles and boards. When I went to ask Mr. C. if he was not going to send down again, he said he would not send till after the busy time was over. Tristam asked me if I had got £5 to swear that the child was mine. I made the appointment on a Thursday, and on the Friday I was in the porch with her. Twice in the byre, twice in the porch, twice on the ice. I went up to Gagnon[’s] and met her at the waterhole.”213 Here ends the 6th day.

The 7 th day of sitting – 26 th of February, 1863 Revd. John Chapman, sworn: “In the last week in June I went214 to the Revd. A. Cowley in company with Mr. Corbett. On our way down we met a young man whom Mr. C. recognised as the brother of Maria Thomas. He asked the lad if the plank[s] were ready. Mr. C. spoke of boards and plank[s]. The lad said they were not yet crossed.” ¶ “Mr. C. left Mr. Cowley’s before me. He had told me he wished to see Mr. Hunt and Simon Thomas. It might be about 10 o’clock a.m. We had good weather. Mr. C. came to Mr. Hunter’s about 6 o’clock p.m.” Mr. C. [C]3 mentioned that he intended calling at Thomas’s & Hunt’s, but [Witness] does not know if he mentioned it to the others – Mr. Cowley or Mr. Hunter. Mr. C. did not say why he wanted to see Mr. Hunt, but [Witness] thinks it was about Denig’s affairs. “He told me on my way up he had been in search of Mr. Hunt, and had a bad headache, and that he remained till after the middle of the day.”

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¶ “I was aware of Mr. C’s intentions to build – saw some logs which he shewed me at Headingley. He intended to give the building, when finished, to some person. Mr. C. on one occasion asked me to speak to Maria on account of her rudeness, and not doing her duty. I spoke to her, and asked her to be a good girl.” ¶ “On another occasion, I questioned Joseph Sayer about Maria. And he said, about the time of killing cattle, [that] Maria asked him to lie with her, ‘and I did so, and I had connection with her.’ And he further said he had laid with Maria [another time or times], but he had never had any further connection. I distinctly made him to understand me.”215 ¶ “I am sure it was after breakfast when the horse was crossed. I saw the horse on the opposite side of the river, and remarked it to either Mr. Hunter or Mr. Cowley.” ¶ “On one occasion I heard Mr. C. say that Chamberlain was going to make a match with Maria. On another occasion Mr. C. asked me to speak to Chamberlain. Having [not?] heard the expression of Joseph Sayer’s having had any criminal connections with her, he said yes. It was after Joseph Sayer was in the house that I asked these questions in the presence of Mr. C., myself, and Joseph Sayer.” ¶ “Hearing about a hole in Mr. C’s byre, I got Peter Fidler to get into the loft and see if there was any. I do not know if the sticks were the same, but I saw no hole, and Peter said he saw none when he got up. There was no hole on the outside of the byre, but my attention was attracted towards a small crack, and I told Peter to get on the pig stye to examine it. It was a very small hole – a sixpence would cover it. Peter could not see through it. It was at the upper end of the byre.” Mrs. James MacChorister, sworn: “I know that Maria Thomas had a black dress (merino) in the month of June 1861. She wanted me to make it. She had 1½ yds. of black silk fringe. I asked her where she got it. She said from her mother. I did not make this dress. Her mother told me she had given this dress to Maria. She told me this in July.” ¶ “Frequently Maria came to my place, telling me she had a holiday, which I found out to be lies. Maria & her mother came up last summer and dined with me, and we talked about the report of Mr. C. having had connection with Maria. They came there to sleep. On one occasion Maria told me that she had got a letter telling her of the death of her sister Mrs. Leask. Mrs.

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Thomas told me that she could make nothing of Maria, [and] had sent her up to Mr. C.” ¶ “They came to me about 2 o’clock a.m. last summer. It was in the month of June. She showed me the dress. Mrs. C. complained of her coming to me without leave. Mr. C. was not at my house. There was a court about harvest time – the 21st August – and some crop was cut when they came to my place last time.” [C]4 Mrs. James Foubister, sworn: “I know Maria Thomas. I made a French merino dress for her with black silk fringe. She spoke to my motherin-law about my making it a little before harvest. I heard of it some time before I got it to make. She sent me a muslin dress, which she said had cost her 8/, from one of the soldier’s wives. The dress I made I think is the same now worn by Mrs. Thomas. I never saw it on Maria. Maria brought it without lining, and it lay some weeks before I got the lining. Maria was reported at our place to be a great liar. I expected the muslin dress was to be the payment for making the [merino] dress. She was 4 or 5 times at my place. I have said I believed her to be a liar. She said she bought the muslin dress from a soldier’s wife. My sister Flora told me she had made it. I believe that perhaps she told the truth when she stated that she got it from Mrs. Leask.” Mrs. John Foubister, sworn: “I know Maria Thomas. She spoke to me about a black merino dress at Wm. Brown’s. [C]5 She had a muslin dress. She was wishing to change it for a dark print one. She after gave it to me to give it to my daughter-in-law for her children. I saw the black dress at our house. She said it came from her mother, who had sold her land, and had given it to her. Maria’s character was that she was a liar. I always heard the family were bad – raising evil reports against their neighbours. I know Maria since she was a child. Nor would I believe her oath. When I left St. Andrew’s Maria was not very big. She was going to school. She told me a lie. I do not believe all I hear. I think she cannot speak the truth. She came to my house and said Mr. C. had sent her to tell my husband he wanted him. My husband was not in, and did not go down – and Mr. C. not having sent for him again I think she told a lie.” Thomas Gardener, sworn: “I know Maria Thomas. She came down once and brought a report concerning the Sioux Indians. She said she saw the flames coming out of James McKay’s house. On the evening of the same day216 Js. Fidler came to me with a paper for me to read for him. I asked him from whom he expected it was from. He said Mr. C.”

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Gilbert Contois, sworn: “I know Josh. Sayer. He told me he had slept with Mr. C’s servant Maria. I understood distinctly that he had had connection with her. He said he got on the girl.”217 John Favel, sworn: “I know Maria Thomas. [I] conversed with her while I was engaged at Mr. C’s. I had connection with her the first time in the byre, second time in the byre, the third or last time in the hay yard. I soon left Mr. C. after this – 2 or 3 days after. I saw Billy Sharp driving Maria in a sled. I began my labour at Mr. C’s 4 or 5 days before April.” ¶ “I swear distinctly I was not sent for the evening before Mr. C. was taken. I went the next morning to get some medicines for myself. I was in prison,218 and Mr. C. paid part of the fine. Mr. Hunt asked me if I had connection with Maria. I told him I had. I paid about 9[7?]/ to Js. Taylor. [C]6 It was a paper note I had for £1.5.0. I went home before going to John Taylor’s. This was a day or two before Mr. C. was taken down. I had been at Mr. C’s, went home, and came again in the evening. Saw my brother above Mr. C’s. I did not call on J. Taylor when I went to Mr. C. I went for medicine for myself the night before. No one asked me about this child. I never spoke about having had connections with Maria. I did not use the medicine because ... it was not the kind I wanted. Mrs. C. was there with the children. I was not long there. Mr. C. merely said two constables were coming for him, but did not say for what. He only said it was for the girl – that the girl was with child.”219 Elizabeth Bird, sworn: “I was in Mr. C’s service about four years ago. I was frequently in the byre and house alone with Mr. C. Mrs. C. was seldom absent from home. Mr. C. never played or joked with me. He never said anything improper when alone with me.” Sarah Braconnier, sworn: “I was servant to Mr. C. for ten months. I was often in the byre with Mr. C. He never acted in an improper manner. I went there when the Columbia people went off.220 I often went to the byres. Mr. C. would, in the absence of his temporary men servants who was engaged now, and then came to the byres to assist me.”221 Elizabeth Fidler, sworn: “I was two months in Mr. C’s service, and during that time was once at the hay, and never saw or heard anything wrong with Mr. C. Never knew Maria till I saw her at Mr. C’s.” Elizabeth Swain, sworn: “I know Joseph Sayer. He told me: ‘That is the girl for the men’ (meaning Maria). [That was] last summer about hay time.222 I was 2½ months at Mr. C’s service. I milked the cows, and was often

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alone with Mr. C., and he never by word or deed said or did any indecent thing to me.” Mrs. Willm. Brown, sworn: “I know Maria Thomas. She told me her mother had bought a French merino [C]7 dress. It was early in the spring. It had silk trimmings. I was in the house – it was in my house. She brought a muslin dress. She said she wanted to change it for a print one. She then made an offer of the muslin dress to Mrs. Foubister – to give it to her daughter-in-law to cut up for her children. Mrs. Foubister did not like to take it for nothing, and Maria said her daughter-in-law could make a dress for her.” Simon Thomas’s family was a bad family when she lived in their neighbourhood at St. Andrew’s. “I would not believe any of them on their oath. Maria told me once she had caught Sarah Atkinson and Thos. Spence in the privy.223 I would not believe her on her oath. The general opinion of her at Headingley is that she is a liar.” David McKenzie, sworn: “I know W. Sharp – we are friends. He spoke to me about Maria Thomas. He told me he had lain with her last winter. [This?] was a twelvemonths. This was the second time. And again about the 1st of April. Both times he told me. He afterwards told me he had lain with [her] six times. He, Wm. Sharp, slept sometimes at our house. It was in December that he said he had lain with Maria. I asked him how he was getting on with the girls. He said very well. I then asked him when he had had ‘a touch.’ He said: ‘Short [while] ago,’ with Maria. He said it was in Mr. C’s porch. The porch is about 10 feet broad, and more in length. [He] did not tell me why he went about the 1st of April last. I asked Billy Sharp again if he had had a ‘touch.’ He said: ‘Yes – with Mr. C’s servant girl Maria.’ We were great friends, but he never told me about driving Maria on the ice. I never told this till Billy himself told it to Cammeron & Stevenson. I never teased Billy about the child. Neither Billy or any other person told me to say the first part of April. I swear that no one [was] ever telling me to do so. Johnson told me Maria had [C]8 a child. I asked if it was a boy or girl. I cannot remember what he said about Mr. C., but he asked about Mr. C. and what colour his hair was. It was after I left my brother-in-law’s. Billy never asked me if I had a touch.” Christopher Smith, sworn: “I know W. Sharp. I spoke to him about a year ago: 21st or 22nd. He came into Dennison’s house, where I was. He said he had two girls whom he could get at when he liked. Maria Thomas was one of them – the other I do not wish to name. But he did not say he had done so.” Henry Johnson, sworn: “Mr. Whitford was not here on the 15th June.224 On the 12th June I started in company with him, and remained together

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to Graham’s Point. I marked the day of the month at Livingstones’ before starting. I am certain it was on the Thursday.” John Pruden, sworn: “I crossed Mrs. Leask and Maria last summer. I am not sure about what hour it might have been. It might be about 1 o’clock p.m., more or less. I will not swear it was not 3 o’clock. I only know I did cross them.225 I heard of Mr. C. having been down – heard he was coming down before he came down.” Thomas Swain, sworn: “Maria has sworn that I shut up a hole in the gable of Mr. C’s stable. I never shut up any hole. I was cutting hay last summer for Mr. C. He was with us the first day of cutting the 21 July. It is 2 miles out where we cut. Mr. C. started off home before us. When we started, we went as hard as the horse could go. When we came to Mr. C. his horse was just taken out. After supper we went round the field. [I] did not see Maria – she could not have been there. I remember Maria upset her tea at supper. Maria did not go out of the kitchen. Mrs. C. was not there. It was past 7 o’clk. When I was at work there Maria was always playing with the men. I called out to Peter Fidler ‘to jump her.’ I saw ladders at Mr. C’s from 12 to 14 feet long – never saw a ladder from 7 feet to 10. I never took hay from the stable loft while [C]9 I was there. There was a space in the loft, but it did not look like a hole to get into the loft. Mr. C. was accustomed to attend every evening and morning. I mended the lath and plastered the breach. I never spoke to Mr. C. of Maria’s behaviour. I swear Mr. C. was not above 5 minutes home before we arrived from the hay the first day of hay cutting.” James McChorister, sworn: “I attended the Quarterly Court in August last: 21st inst. I met on my way down Maria & her mother going up. It was near Bourk’s place I met them. I have seen Maria since this case commenced. I went to her in company with Mr. Ross. On that occasion Mrs. Thomas said she knew that Mr. C. had had connection with her daughter, and the reason she kept out of the house when Mr. C. was there was to prevent Simon from suspecting that Mr. C. was working at her.226 Mrs. Thomas further said if Mr. C. had come down when Maria sent for him it would have been better. I met John Chamberlain once at Mr. Taylor’s church. Mr. C. spoke to him of settling and marrying. Mr. C. advised him to marry a Protestant and not a Catholic. Mr. C. last spring again – the latter end of May – spoke to him to marry Maria, and said if he would [Mr. C. would] give him a lot of land. I gave a present to Chamberlain from Mr. C. when he went to the Lake of the Woods. Henry Sayer – Maria spoke to me about that he had offered one of his claims if he got married. I know that Mr. C. got Thos. Swain and Betsey Boubier to marry. He wanted Gunn and Cammeron to marry. He always tried to get the young people to marry. I

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remember once Maria came to my place, and said Mrs. C. had given her a holiday to pass the day with my wife.227 This was a lie – Mrs. C. had not sent or given her a holiday. Mrs. Thomas came up to ask me to look after her daughter Maria. Mrs. Thomas told me, in the presence of Mr. Ross, while we [were] there, that she knew Mr. C. was having criminal connection with her daughter.”228 [C]10229 NB: The 8 day of the sittings were by some mistake omitted to be entered, having been mislaid, are now entered and recorded by me. W. R. Smith Clerk of the Court th

27 th February – Friday: 8 th day of sitting, General Court, 1863 John Cammeron, sworn: “The day James Isbister was buried, [C]11 when Thomas Thomas (Simon Thomas’s son) came to Mrs. Corbett for advances on boards & plank[s], Mrs. C. said she could not, as Mr. C. had already advanced him on that account. On the day Maria left Mr. C’s, he [Corbett] came and asked me to fetch in his horse. It rained that day. Mrs. C. said she had sent Maria away because she would not obey her. It was about 3 o’clock p.m. when Mr. C. came to me. I might have been an hour in getting ready the horse. Thomas (Doggy or Thomas)230 [was there?] for advances for boards & shingles that he came to Mr. C. He was there about 2 hours, [but I] did not see Mr. C. speak to him. The lad did not speak to anyone – only Mrs. Corbett.” William Tait, sworn: “Whitford came to my place with my brother David. He said he had been at Mr. C’s. He [had] been to Mr. C. about freighting. He said he was to see them again. I inferred that Whitford had been at Mr. C’s with my brother, and that Mrs. C. had been present at their conversation.” ¶ “I was at Mr. C’s the night before he was taken. O. Gowler and others were there also. The conversation turned upon Mr. C’s running away – and if he was innocent to stay. Mr. C. said: ‘As I am a living man I am innocent.’ I did not know what the reports were abroad about Mr. C. and Maria. I understood these remarks to refer to the conversation, and that reports were afloat. O. Gowler was there that evening Mr. C. made the former expression of his innocence. I cannot say that Gowler made any observation on Mr. C’s remark.” ¶ “Mr. C. had spoke to me about building. I saw wood for a building. I cannot say about the shingles. He also said it would be good for renting or

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placing a young man on. I think it was in the first week in June that Whitford came to my house. Whitford told me that he would come up to settle with me, and as near as possible. I think it was in the first week in June. I cannot find the order. I know Maria, and saw her frequently. I have heard a great deal about her. I have heard her spoken of. I do not think I have spoke ten words to her while at Headingley. It might be 2 weeks after the May General Court – I am not sure to the time. I do not think Whitford came again, as the time was short. I gave him an order: £14.17.00.” ¶ “I saw a flaw in [C]12231 the plaster about the breadth of my two hands. It was in the night I was with Gowler. Coming away from Mr. C., Gowler went on the pig stye, and examined the hole. It was from ¼ to ⅜ of an inch in depth, and the plaster had fallen off. I cannot say if it was round or square. J. Taylor told me there had been a window there and broken. The patch, if it had been mudded, was the colour of mud. I swear I cannot say it had been mudded. [It was] ⅜ to ½ an inch from the outer [edge?] to the mud plaster.” ¶ “I think I put a load of hay to Mr. C’s stable, but whether it was put up or not [I] can’t say. I have been four years at Headingley. I do not remember having spoke a dozen words to Maria – nor do I know of any lies she told me. I heard she said her sister Mrs. Leask was dead, [and] I thought if true I should have heard of it. I would not now believe Maria on her oath. I heard Gowler say that he found the mud in the hole soft. This was sometime after the night before spoken of.” Mrs. Sharp, sworn: “My last child was born on the 4th day of May”232 and till after Maria left she had not been to Mr. C.233 “In the summer I went to Mr. C. to borrow a pound. Mr. C. had told me he wanted my son to fetch up some boards & shingles from the rapids. My child was baptized the last of May or beginning of June. Mrs. C. only paid me two visits, and these visits were paid after Maria was off.” Benjamin McKenzie, sworn: “I drove Maria Thomas to her father’s. She told me the 2nd track from the Fort would lead us correct. We got lost. I got as far as Mr. Cowley’s. She asked me to camp out. On another occasion she, at Headingley, jumped in my cariole. I told her to get out, but she would not. I drove her up a piece, and told her to get out – and then I drove back again and turned her out. I thought Maria in earnest when she said ‘camp out.’ I did not tell this to Mr. C. I told it to J. Foubister. I was lost as to finding her father. I thought it purposely done by her.”234 John Omand, sworn: “I know Maria Thomas – was neighbour’s [servant]. Maria went to W. McKay’s to get things in my name when I never sent her.

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She got 1/6 in cash, tea, bread, butter. When I heard of it I sent for her to W. McKay’s house, and questioned her about it. She ran out of the house and laughed at me. On another occasion [C]13 she went to borrow in my name again – from Mrs. Johnson – but Mrs. Johnson sent over a little girl to ask me if I had sent her. I said no. Mr. McKay has been there nearly 4 years, & this happened the first year he was there.”235 George Tait, sworn: “I was present at laying of the first stone at St. John’s Cathedral, and after went up to Headingley – and Dan Hamilton with me – to my brother William’s. I arrived there about 3 o’clock p.m. I went up from my father’s house. I was not at my brother’s place for a month before, or since. I swear I never went there but once. I cannot give the date.” Andrew Mowat, sworn: “I know nothing of Maria Thomas having stolen a box of instruments from Dr. Beddam. I brought Mr. & Mrs. Corbett and family up from York Factory in the year 1858. When the provisions of Betsey Fidler got out236 she helped herself openly out of the men’s provisions. Her husband James Fidler cooked for Mr. C. I cannot say if I paid him for cooking. I have heard a great deal about this family, but how true or false I cannot say. Thomas Doggy worked for my father – and Simon his father too. They left our neighbourhood about 2 years ago.”237 William Tait, recalled and examined: “In the first week in June George, my brother, & Dan Hamilton came to my place – the same day that Whitford came there. The hole I spoke of in Mr. C’s stable was not a small one, but, as I then stated, as broad as my two hands.” Alexander Cammeron, sworn: “I was at Mr. C’s the evening before Mr. C was taken. It was about 6 o’clock. I was there the most part of that night and next morning. I was aware that Mr. C. had been advised to fly the country. Mr. C. told me he had been so advised. I took Mr. C. to see Mr. Hunt. It was about 2 o’clock that I went home. I never heard him say to Mr. Hunt that he was guilty. Mr. C. had heard that the constables were coming up. I was present all the time Mr. C. was speaking to Mr. Hunt. We both left together, and Mr. C. could not have said any [C]14 thing but I must have heard it. Mr. C. said he could not see why he was urged to run away.” ¶ “I know Maria Thomas. She told Betsey Boubée & Mrs. Taylor that I had put medicine on he [sic] to make them to run after him.238 I met Mr. C. He was going to find out if he could [locate] any young fellows [who] had had to do with Maria. I told him to go back, and I would go and enquire. I went to Jerry Cook & Stevensons. Jerry said he had nothing to do with her. At Stevensons’ I took out the young men and asked him [sic] if they knew

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anything about it. Mr. C. said the report was that he was reported to have got Maria with child. I told Mr. C. that I could make nothing of it. I went up to McChoristers. It was then past 6 p.m. when I returned. Saw W. Tate, Gowler, and John Taylor. I stayed about 2 hours, and then went with Mr. C. to Mr. Hunt’s, and stayed there about 3 or 4 hours. Mr. Hunt said he would do what he could for him, and then we returned to Mr. C’s. And the next morning I saw John Favel at Mr. C’s, and I asked him if he had had anything to do with Maria. He said he had. Mr. C. said he was ‘as innocent as a child.’ Did not hear Mr. Hunt advise Mr. C. to run away. Mr. C. asked me if I heard him ask Mr. Hunt if he could get him clear.” George Sutherland, sworn: “I was at Headingley the 4th or 5th of June, and came down the next day. On my way down I met Whitford at Sturgeon Creek. He gave me to understand that he was going to start soon. He did not mention to [me] where he was going.”239 Mr. Thomas Bunn requested permission to recall [a witness]. [C]10240 After some little discussion it was granted, and the Witness Joseph Sayer [was] recalled.241 After the Recorder explained to him that the oath he had taken on a former occasion when he gave his deposition was equally binding on him today to speak the truth, then: Joseph Sayer deponed that Mr. Corbett had requested him to tell Mr. Chapman that he had had connection with Maria Thomas, and he should be paid for it. And when Mr. Chapman put the question to him he had answered accordingly; and that the evidence he had given was correct, for he never had connection with Maria Thomas.242 Here ends the 8th day, which notes were by me mislaid. The 9th day was expended in pleading for the Prosecution, & in the Recorder’s summing up the evidence, and the Jury’s length of time in deliberation243 W. R. Smith Clerk of Court [Crown Address to Jury:]244 [The following was reported in the Nor’-Wester but not in the court record.] “Mr. Thomas Bunn then addressed the Jury on behalf of the Prosecution. The duty was, he said, a painful one; but he felt bound to tell the Jury that on the evidence which had been adduced they could come to no other conclusion than that the Accused party was Guilty; and he (Mr. Bunn) demanded a verdict to that effect. It was a serious thing to condemn

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a fellow creature; but, though their hearts should bleed, still the hands of justice must be upheld.” “Mr. Bunn reviewed the evidence at considerable length, but as this case has already occupied the greater portion of our last four issues, we wish to bring the report to a close as speedily as possible, and feel obliged to omit a full report of that speech.” “Mr. Bunn closed his address as follows: ‘That girl (Maria), who in 1861 was interesting, lively, chaste, and strong in health, was ruined, lost, undone, in June 1862. You, gentlemen, have seen the steps by which this sad change was brought about. And by whom: by one whose peculiar office as clergyman it was to make her appear in the shining garb of righteousness, but who dragged her, with himself, through the blackest degradation. He who should have sought to pluck her like a brand from the burning, threw her on the world – a moral wreck and ruin. And, gentlemen, you will excuse me if I remind you that whatever be your verdict, a verdict of truth is recorded in heaven already. I leave the case in your hands, and may the God of truth so direct your hearts in strict accordance with this truth that your decision shall be consonant with the interests of morality and religion.’” The Recorder then summed up the evidence. [Recorder’s Charge to Jury:]245 [The following was reported in the Nor’-Wester but not in the court record.] “Having expressed his sense of the importance of the case ... he went on to say: ‘It is some relief to me that ... ample justice has been done [on behalf of both Prosecution and Defence] by the professional advisers on both sides. A degree of skill and assiduity has been displayed which is very creditable to the gentlemen concerned ... on both sides ... [C]ounsel have done their duty; and now we have to do ours.’” [After commenting on the immense significance of the jury’s decision to Reverend Corbett, the Corbett and Thomas families, the church, and the community in general, Recorder Black remarked, “To the unfortunate woman herself the consequences of this prosecution cannot, alas ... affect her very much ... I leave you, gentlemen, to judge by your own observation as to whether, in that wistful, withered, haggard young face, the shadows of eternity do not seem to be flickering, and whether death does not seem to have already put his hand on her.” He then rejected the theory that the prosecution was “the result of conspiracy,” noting that counsel for the defence had done so as well,246 and discarded the possibility that “one man or woman could be found to

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deliberately sit down and falsely invent such a story as has been heard here for the last eight days.” Then he turned to the nature of the charge against Corbett:] “The crime with which the Prisoner is charged is that of having, by the means set forth in the Indictment, attempted to procure the miscarriage of Maria Thomas ... You will observe that it is not the crime of having seduced her that he is charged with ... It is not the crime of having had any “dealings” with her ... It is not the crime of being the father of her child – although the fatherhood of the child has something important to do with it. The charge is, simply, that of attempting to procure abortion ... The law in this instance cares not whether the attempt be successful or not ...” “The statute under which the Prisoner has been indicted is 24 and 25 Vict., ch. 100, passed in 1861.” [That statute was then quoted, following which the recorder explained that the legislation had changed considerably over the past thirty-five years, and noted that at one time the crime applied only to women “quick with child” (able to feel fetal motion).247 Turning to the evidence, Black structured his review in such a way as unmistakeably to favour the prosecution. He first summarized, at great length, the “horrible, revolting story” told by Maria Thomas and the other Crown witnesses. Although he began by acknowledging that the account might be either “true or false” – “a story produced by a vile and depraved imagination, or one based on actual and positive facts”248 – it was soon clear that he believed it in all its essentials. Maria had stood up, he pointed out, to more than a day in the “fierce and burning light” of courtroom examination and had emerged largely unshaken. Why, he asked, would Corbett have acquired from John Schultz, and administered to Maria, medicines known to induce abortion? And was it not highly significant, he enquired, that Dr Cowan thought there was no way Maria could have invented such medically accurate descriptions of attempted abortion? The second part of Black’s review was an often scornful examination of the defence evidence. He considered the unsigned “non-oath” sworn by Maria before the unauthorized Magistrate Taylor to be consistent with Corbett’s cover-up attempts. The many discrepancies between the dates given by the girl for particular events and those given by defence witnesses were irrelevant to the substance of the charges against Corbett – past dates being difficult for anyone to remember and these particular dates being insignificant in any case. The mischievous lies that Maria was alleged by some witnesses to have told in the past were “small in number and trivial in character” – not such as to cast doubt on her sworn testimony in this matter. And the claims by various young men to have had sexual relations with her the recorder treated with contempt, concluding that even proof of twenty such affairs would not rule out illicit relations with Corbett. The fact that Corbett had not acted improperly with respect to other female servants was altogether irrelevant to his treatment of

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Maria, and the lame attack on Maria’s sister for allegedly having taken some provisions on a boat trip six years previously did nothing to impugn her crucial corroboration of the Mapleton abortion attempt. Black wound up his overview of the evidence by reminding the jury of two very strong pieces of pro-prosecution testimony: that of Archdeacon Hunter and Joseph Sayer. The part of Hunter’s evidence to which Black made what he called “special reference” was Corbett’s admission to John Taylor that “I am no doubt to blame.” This statement could not be fairly characterized as the full “confession” Black claimed it to be, since the “blame” may well have referred only to his sexual intimacy with the girl, not to the attempted abortion with which he was charged; but it was decidedly hurtful. And the recorder’s reminder to the jury, strategically placed at the very end of his evidence review, of Sayer’s dramatic last-minute claim that Corbett had offered him money to admit having had sex with Maria must have provided a strong push in the direction of conviction. He concluded as follows:] “Gentlemen, I have but little more to say. Yours is an arduous and painful duty. I deeply sympathize with those having to pronounce verdicts on questions affecting the liberty of one of our fellow men ... [Y]ou have in your hands one who, till this time, occupied a position of respectability. [T]he consequences to Corbett are of the most serious description ... [Y]ou may say they are, in a certain sense, ruin ... [T]herefore you are to pause and ponder well before you find him guilty; on the other hand ... if you believe him to be guilty and fail to bring in a verdict accordingly, you are practically opening in this country the widest floodgates of the greatest wickedness ...” “If during your deliberations you see ground for any reasonable doubt of the Prisoner’s guilt, I am bound to say that he is entitled to the benefit of that doubt. But it must be reasonable – one resting on something like rational ground. If you felt strong doubts, it would be your duty to acquit him; but if you felt no strong doubts – and I cannot see any great grounds for them – then you will bring in a verdict of Guilty, and leave the final results in the hands of God.” [Here the court record resumes.] And the Jury retired and, after a considerable time,249 returned the following written verdict: “We find G. O. Corbett, the Prisoner arraigned at the bar on the charge alleged against him, we find him Guilty, but recommend him to the mercy of the Court. (Signed) Alexander Sutherland, Foreman.”250

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The Prisoner, on being asked why sentence should not be passed, replied that he throws himself on the mercy of the Court.251 Sentence: To be imprisoned six months without labour or confiscation of property.252 Commentary The excitement of these nine gruelling days253 in the courtroom was both preceded and succeeded by a number of controversial and much-publicized extracurial events.254 The proceedings began with a preliminary hearing conducted by Magistrate Thomas Sinclair at Maria Thomas’s bedside in her parent’s home in early December 1862, resulting in the immediate issuance of a warrant for Corbett’s arrest. Two days later, he was taken into custody and lodged in the settlement jail pending trial at the February sitting of the General Court. Bail not having been offered initially,255 a crowd of the accused’s supporters presented themselves at the jail on the morning of Saturday, 6 December, effected forcible entry, and demanded that he be released on bail. When Governor Dallas heard of the demonstration, he confronted the protesters, and chaotic bail negotiations ensued over the next ten days, concluding in Corbett’s release on 16 December by a panel of magistrates on the security of two £200 bonds and his own recognizance. During those negotiations, an early special sitting of the court was considered as a possible alternative to granting bail, and Corbett continued after his release to press for such a special trial. By then, however, it was clear that Maria Thomas would not be able to attend until after her child had been born. That event was expected shortly before the regular February assize. The authorities therefore decided, to the annoyance of Corbett and his friends, not to proceed early. That decision doubtless helped to ensure that the cases on both sides were thoroughly prepared. The excitement did not subside for long after the tumultuous nine-day trial. At the 9 April 1863 meeting of the Council of Assiniboia, just short of six weeks into Corbett’s six-month prison sentence, Governor-in-Chief Dallas introduced a petition, signed by 530 persons (420 from the “Municipal” Settlement and 110 from Portage la Prairie, where Corbett, championed by Archdeacon William Cockran, had much support), calling for the prisoner’s immediate release and remission of the time remaining on his sentence.256 The reasons given were Corbett’s previous “unsullied moral character,” diligent service, and the esteem and love of his congregation; the sufficiency of the time by then served, especially in light of the professional consequences and damage to reputation likely to follow his conviction; the “dark and dismal prospect for himself and family in the future”; the fact that both mother and child had emerged from the experience physically unscathed; the report that six of the jurors had been reluctant to convict; and a concern that the prisoner’s mind seemed to be in a “very precarious state,” which further imprisonment might cause to become “complete aberration or derangement of mind.”

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The council decided, correctly, that it had no jurisdiction to deal with the petition, since remission of sentences was within the exclusive purview of Governor Dallas.257 When the latter found the ball back in his court, he acted consistently with his policy of being no more personally involved in civil governance than was essential – especially in judicial matters. He requested the opinion of Recorder Black and the magistrates who had sat on the case. Black’s response, supported by the magistrates, was to agree with the jury’s verdict, which he described as “the only one to which, as honest men under oath and guided by the testimony laid before them, they could possibly comply.” Nothing learned since the trial, he said, had shaken his confidence in the jury’s conclusion. In fact, in his charge to the grand jury at the next session of the General Court, the recorder referred back to this case, and read in open court extracts from a letter Corbett had written to his bishop after the trial admitting to having had sexual intercourse with Maria Thomas. He characterized this admission, rather unfairly, as “such a confession as, in the eye of a sensible man, is the equivalent of a confession of the whole charge.”258 On the basis of Black’s report, Governor Dallas refused to shorten Corbett’s sentence. Angry assemblages demanding Corbett’s release then began to gather outside the jail; and on 20 April, at the conclusion of a petty court session in the courtroom, a mob estimated at between thirteen and twenty men, described in the unofficial report as “men for the most part worthless characters and of no means,” though led by St James schoolmaster James Stewart, “surrounded the door leading to the cells and, easily overawing the jailor – an old Frenchman of sixty winters – with an iron crowbar broke the padlock by which the prison door was fastened. Mr. Corbett, who had already drawn on his greatcoat, and stood in readiness to receive his liberators, stepped out of the gaol, and was forthwith driven home to his family at Headingley.”259 Arrest warrants were swiftly issued for several of the participants in this outrage, and Stewart was thrown in jail the next day. Shortly afterward, however, two friends of Stewart, prominent settlers William Hallett and John Bourke, called on Dallas to demand the immediate release of Stewart and the cancellation of other outstanding arrest warrants. The governor refused, with the result that on the following day, 22 April, a congregation of some forty or fifty men, mostly armed, gathered outside the little courthouse-jail, intent upon securing Stewart’s freedom. They were met by about thirty volunteer special constables,260 mounted and armed, who were prepared to resist the incursion. Unsuccessful discussions between the governor and council and the intended jailbreakers took place, followed by skirmishes in which the latter captured two of the special constables. Finally, the entire body of protesters “proceeded to that part of the prison furthest from the Fort and, having torn up the pickets which enclosed the prison yard, again broke open the gaol and liberated their friend. This done, they discharged their firearms in the air and, with loud shouts, returned home, no molestation being offered to their proceedings by the authorities.”261 Governor Dallas was later criticized by some for failing to order the special constables to resist the mob physically. At a meeting of the Council of Assiniboia held

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six days later – 28 April – he explained that his reason for not ordering the special constables to defend the jail was not based on fear that they would be unable to do so, but “was dictated solely by humanity ... there being serious apprehensions that such a defence would have involved bloodshed, and array in the bitterest strife one portion of the community against the other.” Then he sought the councillors’ opinion about his decision.262 Their response was wholly supportive of the governor’s conduct. Even the four magistrate members of the council who had issued the arrest warrants in the first place concurred. They presented the council with a summary of events, describing as follows the “momentous question” they had faced, knowing the protesters’ determination to proceed at all costs: “[S]hall blood be shed? Shall authority be deliberately given for the commencement of an armed struggle where both parties were totally undisciplined, and where, after the first shot was fired, they would be equally beyond all command[?]” After reporting the conclusion they had reached, the magistrates recommended to their council colleagues, “with a degree of reluctance amounting to pain,” that in those circumstances “it is advisable to suspend, at least for a time, any further efforts for apprehension of these men.” Had armed force been used against the jailbreakers, they pointed out, there would have been “the strong probability of the collision being embittered beyond all calculation by the antipathies naturally springing from differences of race, of language and religion, as well as by other causes.”263 The basic reason underlying their and the governor’s inability to act in support of law and order was “the want of some sufficient military power on the spot to ensure due obedience to the lawful authorities ... The presence of a military force under the Queen’s authority, and that alone, we believe, would have the desired effect; and we therefore earnestly trust that the earliest opportunity will be taken for fully representing the matter to the home authorities.”264 Concerned that their statement might be construed to imply that Red River’s courts could no longer function at all, the magistrates hastened to assure their colleagues and the general public that, “[n]otwithstanding ... these outrages, and ... the impunity with which, for the present, the offenders have been allowed to escape, we can still go on, as formerly, with the general administration of justice in our courts.”265 The council expressed its unanimous concurrence with the conduct and sentiments of both Governor Dallas and the magistrates, and resolved to transmit to London “an earnest appeal for the immediate establishment of a sufficient garrison in the Settlement.” Even the Nor’-Wester, which rarely overlooked an opportunity to criticize the Hudson’s Bay Company or its officers, agreed that Dallas had had no alternative but to proceed as he did.266 This did not prevent its seizing upon the incident to support its longstanding editorial stance that the company should not be involved in colonial governance. “Were the governing power not connected with the Company,” it asserted, “the late outbreak would not have taken place.” It pointed out that “[t] here has always been a great deal of opposition in the Settlement to the Hudson’s

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Bay Company,” and noted that Reverend Corbett had long been known as an outspoken critic of the HBC. For those reasons, The question of his guilt or innocence became, in fact, a party question, in which the Company’s friends and its opponents were arrayed against each other ... The Government and the Company being one and the same, the former was weakened by having to bear the odium attaching strictly to the latter ... The people of Red River are not a disorderly, lawless set. Far from it. They have proved themselves the reverse for over a quarter of a century past, by respecting and submitting to a local government which would any day have been powerless had the people been a lawless set. Our people respect law and order sufficiently to have acquiesced in the decision in the Corbett case had the impression not been so deep-rooted that the courts of the Company cannot be impartial when opponents of the Company are at the bar. While it effectively advanced a laudable editorial objective, this analysis of the case seems exaggerated. No doubt antipathy to the company contributed some support for Corbett; but defence counsel and Nor’-Wester co-owner James Ross had unequivocally rejected the existence of a company conspiracy against Corbett in his address to the jury. And there were other important factors as well in the pro-Corbett movement: sympathy for a popular and now professionally, socially, and matrimonially ruined community leader; respect for the settlement’s religious establishment generally; disdain for what seems to have been widely considered a mischievous girl from a pariah family; and cynicism – of a type not altogether unknown in the twenty-first century – about allegations of sexual impropriety advanced by women. And who were the rebels? They were a group of about thirty anglophone hotheads from beyond the settlement proper. This manifestation, ugly and unacceptable as it was, involved nothing like the risk of civil disintegration that had accompanied the Sayer protest, for example.267 At the next sitting of the court – 19 May 1863 – Recorder Black devoted a considerable portion of his grand jury charge to the “outrages” that had brought about Corbett’s escape and to other sequelae of the case.268 He explained why the law enforcement authorities had decided not to press charges at that time, but he emphasized the gravity of the crime committed by the perpetrators, as well as by those who had encouraged the action from the background. He also pointed out that they had placed Corbett in a more serious situation than ever, since he could never cleanse the guilt from his record without either serving his sentence or obtaining a pardon, which latter possibility was extremely improbable. An extraordinary postscript to the case was written by Corbett himself some time before his illegal release from prison. He wrote a letter to Bishop Anderson admitting to having had sexual intercourse with Maria Thomas. That letter also received great attention in Recorder Black’s charge to the grand jury in May. Before court opened that morning, Black paid a visit to the bishop and borrowed Corbett’s letter with a

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view to reading portions of it to the grand jury. And read them he did – not only to the jurors, but also to everyone else in the courtroom and to all readers of the Nor’Wester, which published the recorder’s charge verbatim.269 The letter was, Black said, “such a confession as in the eye of any sensible man is equivalent to a confession of the whole charge.” Although that might seem at first blush to be an unfair exaggeration of Corbett’s confession of adultery with Maria, the letter takes on broader significance when considered in the light of Corbett’s request that Maria not be informed of his confession unless she withdrew her allegations of forcible intercourse and paternity of her daughter. Not a word of what Black read to the grand jury from Corbett’s letter denied or sought to suppress her charges of attempted abortion.270 What does the Corbett trial tell us about the administration of justice in the Red River Settlement in the early 1860s – beyond the obvious inability of law enforcement authorities to deal with concerted resistance on even a moderate scale? Some have seen the case as a symptom of a completely dysfunctional system,271 but apart from the pathetic state of law enforcement, that was not so. Consider what had been accomplished in that cramped little courtroom in those nine wintry days. A highly popular community leader charged with a grave crime – by an unimportant teenage girl and her apparently unpopular family – was tried and convicted in a prolonged, well-regulated, and thoroughly peaceable proceeding. Able advocates on both sides,272 men who lacked formal legal training but displayed both spunk and forensic skill on behalf of their respective clients, were afforded more than ample opportunity to marshal and present evidence and arguments pro and con. The judge, although also without formal credentials comparable to those of his modern counterparts, acquitted himself, for the most part, as creditably as most judges of our own times. And the jury, headed by one of the accused’s avowed former supporters and including several others in its number, reached the unanimous conclusion, after long deliberation, that the evidence indicated guilt beyond a reasonable doubt – and convicted their friend.273 A serious possible error in law – though not in justice – was certainly made in charging Corbett under new English legislation which may not have been applicable to Rupert’s Land. Recorder John Black’s concluding, and doubtless influential, charge to the jury was certainly highly supportive of the Crown’s case, and it included two instances of unfair exaggeration that damaged the defence (James Ross’s denial of any conspiracy against Corbett and John Taylor’s report of Corbett’s “confession”); but the evidence, overall, strongly supported the prosecution, and the exaggerated items were of limited significance at the end of the day. The punishment was much more lenient than would have been imposed in England. Far from condemning Red River justice, R. v. Corbett demonstrated to both the local population and the growing numbers of outsiders who followed events in the settlement through the pages of Canadian, American, and British newspapers that the General Quarterly Court of Assiniboia was well equipped to adjudicate “justly between man and man.”274 Red River juries were as well prepared as their

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counterparts elsewhere to apply fairly what they were instructed about the law to the evidence presented to them. A small body of increasingly experienced and skilled lay advocates now existed to assist those who were unable or unwilling to represent themselves in the courts. And an acting recorder was in place who, while lacking formal legal training, possessed a sound knowledge of the basics of law and of trial procedure, solid common sense, and a calm, firm, confidence-inspiring demeanour. Black also understood – to a greater extent than either Recorders Thom or Johnson, and equally as well as Acting Recorder Bunn – that courts exist for the purpose of dispensing, as evenhandedly as possible, humane, if sometimes imperfect, justice to the communities they serve. The Nor’-Wester, in an article almost certainly written by Corbett’s counsel, James Ross, opined that Black – “clear-headed, circumspect, acute ... sound in judgment,” and possessed of “singular tact” – had “given a respectability to the General Quarterly Court which, we venture to say, it never possessed before.”275 Despite its undeniable continuing shortcomings, the court had come of age. The performances of counsel on both sides, upon which Recorder Black had heaped praise at the beginning of his charge to the jury, were also the subject of journalistic remark: A new feature in the trial has been the formal employment of attorneys, pro and con. We were extremely pleased to hear how well the Messrs. Bunn acquitted themselves. ‘How pleasing to see three black heads at the Red River bar!’ remarked a certain clergyman in the courtroom one day. Not very elegant to say ‘black heads.’ But the idea is the same as our own. We compliment the Messrs. Bunn on the diligence and ability they displayed on this trial ... Setting aside the fact that Mr. Corbett was the Accused, and viewing their efforts entirely on their own merit, we are happy to express the hearty satisfaction with which we witnessed their management of the case entrusted to them. They do honor to the native population, and to the Halfbreed class.276 G.O. Corbett returned to England in 1864 – without his family, whom he never saw again.277 He renewed his medical studies, and received an MD degree in 1867. While his hopes of returning to the pulpit were dashed, so far as London was concerned, by opposition from the bishop of that diocese, he eventually received a curate’s licence that enabled him to serve several rural parishes for a few years. Rumours of a love affair during the lifetime of his Manitoba-domiciled spouse eventually excluded him from even those ministerial pastures, however. In late 1866 or early 1867 Corbett launched, in the English courts, a lawsuit for false imprisonment against A.G. Dallas, who had been governor of Rupert’s Land during Corbett’s troubles at Red River. Although Dallas was the nominal defendant, this was effectively an action against the Hudson’s Bay Company. Even from a purely procedural perspective, it was a difficult action to prosecute.278 A major problem facing the English court was how to obtain reliable evidence about events several years previously in remote Rupert’s Land. The only possible

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method by which this could be accomplished in the circumstances was to issue a commission to a reliable person or persons on the scene, authorizing witnesses to be examined and depositions to be forwarded to the London court. Such a commission was issued in January 1867,279 but for reasons unknown, it did not arrive at Red River until February 1869. The document named two commissioners, apparently one nominated by each party. James Taylor, of Marie Thomas’s “oath” notoriety, was to represent the plaintiff, and the widely respected guide, interpreter, and entrepreneur James McKay seems to have been the defendant’s nominee. Taylor and McKay met in early May, exchanged witness lists, appointed a commission clerk, and apparently agreed to a first session a week later.280 On the appointed day, however, neither Taylor nor anyone else from the plaintiff’s side showed up. Taylor turned out to be in the United States on an extended business trip. The reason for the nonappearances seems to be that both sides were having trouble finding witnesses.281 A number of witnesses were nevertheless eventually examined – all of those for the defendant but only a fraction of those on the plaintiff’s list – and a partial report was made to the English court before the time limit it had placed on the commissioned evidence order expired. More than a year later, a second commission was issued. This time there were to be seven commissioners. James Ross, John Taylor, and Dr Walter Bown represented the plaintiff; and Thomas Bunn, A.G.B. Bannatyne, and Alexander Murray the defendant. James McKay was now to be chairman.282 There were still serious difficulties locating witnesses, however: “Two of the witnesses named to be examined are dead – Thomas Sinclair and Grouette’s wife – and Henry McKenney and others are living in the United States.”283 The settlement was, moreover, in the midst of the most unsettling political upheaval in its history: the Provisional Government of Louis Riel was in possession of Upper Fort Garry. In fact, the reason some witnesses were missing was that they were persona non grata to that regime. After Riel’s ouster, and before the transfer of power to provincial authorities was complete, James Ross – who had been expected to play a pivotal role on the evidencegathering commission – suddenly died.284 Whether the latter event was determinative, or Corbett simply lost heart due to the many procedural difficulties and the mounting costs, is unknown. Whatever the reason, nothing more was ever heard of Corbett v. Dallas. Corbett died, after years of ill health, in 1909. He was eighty-six. Thomas Boreskie’s concluding assessment of him was that his “faults far outweighed his virtues,” that he was “by nature contentious, petty, devious, and opportunistic,” and that he had earned Bishop Anderson’s label of being a “most dangerous man.”285 After the Corbett trial, Frank Larned Hunt found himself stranded in Winnipeg. According to J.J. Hargrave, he “felt himself aggrieved by the circumstances” which, by preventing his addressing the jury, had caused public opinion to form “an inadequate conception of his abilities.” He was, moreover, financially embarrassed, and unable to pay the hotel bill he had run up during the trial. Presumably, his nonattendance in court had shrunk, if not entirely obliterated, his fee. The solution

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that Hunt hit upon for both problems, Hargrave tells us, was to advertise a public lecture by himself in the courthouse on the topic “Red River: Past, Present and Future.” Admission was a shilling a head. Although the event was almost as great a fiasco as Hunt’s contributions to the Corbett trial – due in part to the speaker’s water jug being filled with gin – a sufficiently large audience seems to have turned out to relieve his temporary shortness of funds.286 Hunt remained in Assiniboia/Manitoba the rest of his life, contributing occasional poetry and prose to the Nor’-Wester (from which Hargrave quotes part of a long, florid poem commemorating the immolation of the Nor’-Wester office in 1865)287 and then to the Manitoba Free Press. A year prior to his death in 1903, Hunt published a book called Britain’s Own Utopia, which claimed that Assiniboia had been part of the Garden of Eden.288 And Maria Thomas? She died a scant three years after Red River’s longest and most scandalous trial – twenty-two years prior to Corbett’s death.289 History does not disclose whether this was the result of the “flickering shadows of eternity” that Recorder Black thought he detected in her appearance during the trial, or from some other cause. Her daughter, whom she had named Anne Elizabeth,290 was brought up by the Thomas family. [C]15

2 nd day of March, the Tenth day of the February Sittings In the case of:

John Rowand versus George Racette [Case 236b] 291 Debt of £17.03.00 The Defendant denied the debt in part, and pled that his witnesses were absent. After sufficent investigation, the Court allowed the case to stand over till next court in May. In the meantime to pay 11/ immediately, being the amt. of costs. 11/ paid in court.

John Rowand versus Josh. Genton [Case 237] 292 [Debt] Defendt. acknowleged the Debt. Debt: £22.18.04 Costs: 11 £23.09.04 10 Days Grace to pay the above sum.

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The Queen versus Athanas St. Luc [Case 239] Felony293 A True Bill having been found against the Prisoner, he was placed at the Bar. When called on to plead after the Bill of Indictment had been read, the Prisoner pleaded Guilty. Sentence: 2 calendar months, to be fed on the provisions allowed to prisoners, and calculated from this day.

The Queen versus Joe Bodoin & Edward Ranville [Case 240] Felony [Breaking and Entering, Theft] A True Bill having been found against the Prisoners,294 they were placed at the bar and pleaded Not Guilty. A Petty Jury was empanelled. [C]16 Louis Gallerneau [was] sworn, and deponed: That Madame LeMay lived at his house, and that her husband had sent her down provisions consisting of toros295 & buffalo meat, which provisions were put up in the loft of his stable. And that the Prisoner Edd. Ranville was there present when put up there. The hinges to the door were of rawhide, and in his (Ranville’s) presence “I said I must buy a pair of hinges for this door. I perceived on Sunday the 14th day of December that 4 bags of toros and one thigh of buffalo meat, which was wrapped in paper, were missing. In searching about, I perceived the tracks of two persons, and I got some persons to assist me in following up the trail, which we did to Mr. Logan’s. There the tracks went to the main road, and we lost all trail. On our way, we saw where the parties had rested themselves, and where one had eased himself [urinated]. We also found a screwdriver stuck up alongside a tree, and I identified it as my property. At the same time my screwdriver was taken, 2 candles were also taken.” ¶ “On Monday 15th Madame LeMay and others suspected that those who had stolen the property were well-acquainted with the premises. She therefore requested me to get a search warrant. I went with this warrant and a constable to an Indian tent in which were some women. We questioned these women if there had not been 2 men there. We perceived a piece of buffalo meat. We asked them where they got that meat, and she replied that Bodoin had brought it from his master Johnson’s.”

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¶ “We went about a mile from the tent, and found both the Prisoners making a lodge. The constable made a sign to me to speak. I asked Bodoin where he had bought that meat he had given to the women. He said he had bought it from an Englishman, but he could not tell where the house or man was. He finally told us he had no account to give. The constable then took them in charge, and brought them before the magistrates, Mr. Bruneau & Doctor Cowan. The case not being sufficient to commit them, they were set at large.” ¶ “Where we found them, they were cutting wood for Johnson on Jem Sinclair’s lot. On Tuesday I heard Jem Sinclair had found the meat. We met Emile Bouvette to act as interpreter, [and] we put the meat in Sinclair’s store. An Indian woman [C]17 came into Sinclair’s. She understood French. She said she heard Ranville say he did not care a d...n for Mr. Gallerneau, as the meat was well hid.” ¶ “After the above meat, viz.: 1 quarter or thigh of domestic beef and one of buffalo, was found, I got two warrants. There was no other persons about my premises at this time that the property was stolen. I did buy iron hinges, but had not put them on. I do not know if they were able to carry off the 4 toros and meat at once. These men (the Prisoners) had left my place about a week before. Bodoin was off a month before. When I went to Mary Duganne I joked with her. The next day, Wednesday, Jem Sinclair told me he had found 4 toros and a buffalo robe belonging to Mr. Drever’s son. I took the pemmican home on the same day. 2 carrying straps were found at a wood heap. I took them also, and brought them here. This was 2 weeks before Christmas. It was an Englishman who brought them. These are they he brought – I think from the back of my stable to their first resting place is 12 acres.” Toussaint Bonamece [was] sworn, and corroborated the whole [testimony] of the preceding witness, as he had been in his company in search of the thieves; and stated that he was the one who first discovered the theft. “I heard Johnson deny having sold or given any meat to Bodoin. I saw the thigh of meat, and the piece of meat found in the women’s tent. I believe that that piece of meat was cut from the thigh of meat found by Jem Sinclair.” [Constable] Antoine Vandal, sworn: “I knew nothing of this affair till I received the searchw. The 2 former witnesses have correctly stated our progress to the Indian tent, where there were three women. [I] saw the piece of meat. Did not hear either of the men say they got it from Johnson. Saw a little straw on the lodge. I took them into custody.” James Sinclair, sworn: “I found two thighs of meat concealed in a pile of wood which had been cut by Prisoners on my lot. I was hired by Mr.

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Gallerneau to search for the toros. I did so, and found 4 and a buffalo robe. Isbister had found 2 carrying straps. He told me just as I was starting off in search of the toros. Mr. Gallerneau gave me about ¾ of a bag of pemmican for my trouble. I asked Wm. Drever what kind of a robe he had lost, [and] he said his robe was lined with red [C]18 flannel. There was a road near where the straps were found. I have seen these men near about chopping. I never saw the Prisoners carrying straw tied with straps.” Mrs. Margaret Sinclair, sworn: “A Saulteaux woman came to my house and told me that after these men had been set at liberty after they had been examined before the magistrates – when they returned – said that ‘they f...d296 at Mr. Gallerneau.’” William Drever, sworn: “I went down to Wm. Isbister’s, and Sinclair came there and said the toros had been found. I asked if a robe had been found with the toros [and] he said yes. I immediately went across and got it. I did not see who took the robe.” Taypwewitahmook, an Indian woman, sworn: “I heard Bodoin say: ‘J’en pet à Monsr. Gallerneau.297 Does he think he will find his toros?’ I saw no meat down but saw some hanging up. I do not live in that tent.” Mrs. Cahkeetook, sworn (an Indian woman): “I saw a buffalo robe brought into my tent – unlined. I lived in the same tent with Mary Duganne. I know these men: Ranville is always there [and] I have seen Bodoin there. I did not see any thigh of buffalo meat there. We were nine altogether. He slept there in the lodge. It was after I left the lodge I heard of the meat being stolen.” James Isbister, sworn: “I found 2 carrying straps on my own lot at a pile of wood – inside of the pile. I cannot swear that these straps now shown to me are those I found. I looked into the house, and gave them to Gallerneau. There is no road at all where the straps were found.” Francis L’Ireland, sworn, deponed that: “On Sunday 14th Decr. last I came from White Horse Plains. My wife told me that there was 2 candles and a screwdriver belonging to Mr. Galerneau lost out of the house. I suspected that Ranville had taken them, as he before had taken eggs out of my cupboard, and I heard from my wife that Mr. Gallerneau had lost some meat out of his stable loft: 1 thigh of meat and 4 toros. I asked of Mr. Gallerneau’s man if my meat was not taken. He replied [C]19 that he did not think any of mine was taken. I did not go to see. On the 16th I heard that a man had found a thigh of buffalo and a thigh of domestic beef. I and Tousaint Baudrie opened the door of Mr. Gallerneau’s to see if my meat

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was safe, and I found one thigh of domestic beef was away. I can identify the same thigh as my property.” Defence: Mary Duganne, sworn: “I know these 2 men and what they are accused of.” [She] thinks it was Monday the day they were accused. “Both day and night they were at my place – all the evening – when they got back, and remained all night. I know Mr. Bodoin had a robe, and put it out sometimes. Someone changed it, and left another one in the place.” Mr. Gallerneau had maltreated her by threatening her. Bodoin had borrowed 2/ from her to buy beef. Cannot say where he bought the meat. Heard Ranville say he knew nothing of Gallerneau’s toros. “It is not true that these men always stopped night and day with us. Joe Bodoin borrowed 2/, and said he was going to Johnson’s.” Elizabeth Dugann, sworn: “I know these two men at the bar. I have seen them several times at different places where they worked. I am sure I saw them behind McDermot’s and at the lodge. I know the day these men were accused they did not go anywhere.” Does not remember Bodoin going off with an ax [ox?] to fetch meat. “I know [of] Bodoin going to Johnson’s and bringing some meat from him, as he said [he] saw some straw tied with a carrying strap.” Recollects Bodoin bringing a robe – which he said he had bought. “And someone came to claim this robe.” John Geddes, sworn: “I know these men. I did not keep any book. The last meal Joe Bodoin took in my house he asked me for some straw one Saturday. Twice he had one strap only.” Chas. McNab, sworn: “I have seen these men. I know [C]20 one of them. I know they built a tent there. I saw some straw there – did not see any straps. They were cutting wood on Isbister’s lot, and some on others’ lots.” Henry Jonson, sworn: “I knew these men. I have hired him [sic] to cut some wood on Isbister’s lot. I told Bodoin: ‘If I can furnish you meat I will – if not [I will pay] in money.’” Bélonie Gibeault, sworn: “I knew these men a year. I never told them to run for it. I never heard of any harm while at Mr. Gallerneau’s. I questioned Ranville if he knew anything of the toros.” Henry Coutour, sworn: “I know what they, the Prisoners, are accused of. I know Ranville went to shop, and did not see any person with a screwdriver.”

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Baptiste Perreault, sworn: “I have known Ranville about a month. I heard, since they were taken, that he had lived with the Dugans while at work with him.” After the Recorder had summed up the evidence, the Jury retired, and after a short time returned a verdict of Guilty against both Prisoners. Sentence: two months from this date, to be imprisoned in the common gaol. [C]21

The General Quarterly Court, held this 19 th day of May, 1863 298 at [which] were present the following magistrates: John Black Esquire, Recorder William Cowan, JP François Bruneau, JP Robert McBeath, JP Thos. Sinclair, JP

The Queen versus Catherine Daniel 299 [Case 241] Burglary and Larceny A True Bill having been returned by the Grand Jury,300 she was placed at the bar and Pleaded Guilty. Sentenced to three months imprisonment, counting from the 15th April, 1863.

The Queen versus Jacob Bunn 301 [Case 242] Attempt to Commit a Rape302 A True Bill having been found against Jacob Bunn, the Prisoner, being placed at the bar, pleaded Not Guilty. A Jury being empanelled, Mrs. Mary Ann Salter, being duly sworn, deponed that she remembered the time when her child, only between nine and eight years of age, came in crying, and “told me that the Prisoner had been ill using her, explaining all he had done. I examined her and saw her underclothing wet.”

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Henrietta Salter, being questioned as the nature of an oath, gave satisfactory answers and, being sworn,303 deponed that she and a younger brother went to drive the calves to the river to drink, and met the Prisoner at the [C]22 water hole. He was fetching water. He went up the bank with his buckets and rested on the top of the bank. “I and my brother filled our small kettles and went up the bank, and rested a little on one side of the Prisoner. He came to me and took me up and carried me to the bushes, and threw me down on the snow, and, after he had opened the flap of his trowsers, put up my clothes and got on me and hurt me very much. I cried, and my little brother had a small whip and he kept cutting at Prisoner. We heard a cariole coming, and he went off, and I went and told my mother.” The child alluded to by the last witness [the brother] was examined without being sworn, and corroborated the whole of the last witness’[s] testimony. The Prisoner stated that he was only playing with the girl, and made no attempt to ravish her. Verdict: Guilty of the charge. Sentence: one month from this day or four months from the day of committal. Commentary The statutory penalty for sexual assault on a female under the age of twelve was imprisonment of up to two years, with or without hard labour. Recorder Black pointed out in his charge to the grand jury in relation to this case that hard labour had never previously been imposed by the General Court.304 He continued, But I think the time is not far distant – if, indeed, it has not already arrived – when it will be our duty to consider how far the punishment of imprisonment may not be altered in some such way as to lessen the burden of the prisoners on the public, and impress them with a more salutary sense of the crime committed in society. It would be a thing desirable if some method of employing those imprisoned were devised. Elsewhere, the labours of criminals are turned to advantage. We may not have arrived at the time of punishing criminals with labour; but measures may, I think, be devised for the future, to employ prisoners more usefully, and to give them a greater dread of going back to confinement.305 Although the matter would be discussed again on future occasions,306 no saisfactory method of imposing hard labour on prisoners seems ever to have been subsequently put into effect at Red River. The problem would seem to have been that such a system would require more staff and physical infrastructure than settlement authorities were prepared to make available.

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Was a sentence of four months’ imprisonment – one-sixth of the statutory maximum – (without hard labour) appropriate here? Although Black did mention that the accused was young, he also told the grand jury that the young man had been heard to say he would do the same thing to other members of the girl’s family if he had the chance – indicating, even if the accused’s statement in court had not, that he felt no remorse. If the sentence was unduly lenient, to what can that be attributed? A desire to keep prison costs down? The possibility that the accused was a member of a prominent family? Or the failure of an all-male bench to appreciate the gravity of sexual offences against even very young females?

Philibert Laderoute versus Louis Riel [Sr.] [Case 243] 307 For a Horse Ambroise LePine 308 [was] sworn, and deponed: “I know the colt, and held it when it was marked. It was the left ear cut. [It had] a white front. [I] saw no brand of Mr. Riel. I say it is the foal of the Plaintiff. I know it by its marks. Bapte. Least told Defendt. that it was not his. I was present when Laderoute came the second time. I was not present while Pltf. & Deft. were talking about the colt. I heard Deft. say he would lose all his property before he would give up the colt. I heard Deft. tell the Pltf. to look on the right side of the colt. I did not hear anything about a scar. I heard Pltf. say it had the cut of a [C]23 knife under the ear. I helped to mark the colt by cutting a piece off of the ear.” Madam McLeod [was] sworn, and deponed that: “The last time I saw this colt it was sucking. The natural marks are: white forehead and white lip (or end of the nose). I know nothing of artificial marks. I heard about marks – of cutting the ear.” Does not know at what time this was. Alexandre Pagé, sworn: “I know the Pltf’s colt has white forehead, white nose, dark mark on the back. Pltf. told me it was marked. I saw the colt at Deft’s, and it is the Pltf’s colt. I did not see or feel any brand or mark. I know Deft’s colt. It has no white spot on the forehead. Pltf. told me he had marked three of his colts. One was differently marked309 on account of the restiveness of the colt. I heard Pltf. ask Deft. to wait till the brand would show. Pltf. cut the ear. I heard Deft. tell Pltf. to look at the colt. Neither before or after Christmas did I go into Pltf’s stable to examine the colt.” Augustin Racette, sworn, corroborated the marks: white forehead, white nose (or lip). Adriane Carrier, sworn, [deponed] that Defendt’s colt has no white spot on forehead.

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André Beauchemin, sworn: “In spring [18]62 Plaintf. was taking out his colt. It had white forehead and the bleeding, having been recently cut. Defendt. has a brown colt, but no white front. It will be 2 yrs. old in July.” Xavier Pagé, sworn, [deponed] that Plaintf’s colt [had] white front, colour red; Defendant’s colt [had] no white spot on front. François Teibeau, sworn, [deponed that] Defendt. told him that his colt was at Bishop Taché’s. Jean Louis Laderoute, sworn, [deponed] that Defendt. told him that his colt was branded, but imperfectly, as it had been too much burned. He also said it was at the Bishop Taché’s. Defence: François Flammond, sworn, [deponed]: “[I] have known the Defendt’s colt 2 years. Colt had a white spot on head front, colour red. Knew the colt brought to me last fall to be same – with white spot on forehead. [I] did not see it branded.” [C]24 L. A. Riell,310 sworn, [deponed]: “I saw this colt the first year: colour red, white front, white nose. [I] saw it last Christmas [and] knew it to be Defendt’s. I told my father [that from] the marks on the foal it is the same colt I saw young. I heard that my father had branded it. We could see the letter L plain, but it was too much burnt. I did not see the branding iron. I am sure it is my father’s colt.” Modest Largomonier, sworn, [deponed]: “I know this colt [from] when it was foaled. I do not think there was any white on the front, but I did not take particular notice. I think it is Defendt’s by the colour – never saw white front or white nose. There was a mark, I think, on the thigh. I heard the branding was badly done. I think it is Deft’s.” Joseph Flammond, sworn, [deponed]: “I saw the colt the year it was foaled: red coloured, white front & nose. [I] have seen it these 2 years every day. The white on front not very large – nor on the lip either. I do not see the stamp. I heard it had been branded.” Margaret Gaste, sworn, [deponed]: “I saw Defendt’s colt when foaled: colour red. I cannot say if there was any white on its front or nose. I was present when Plaintf. said he had cut the ear with a knife. He said nothing

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that the piece was cut out. I heard the colt was branded [but] did not see it. Did not see if brand was deep.” Vanceslas Bruneau, sworn, [deponed]: “The last fall I found this colt at Point du Chain. I looked [to see] if it was branded, but am not sure if the scar I saw was a brand or not. It was not plain.” Elisiore Lajomoniere, sworn, [deponed]: “I was employed to fetch home the colt. The marks given to me are the same it now has. Colour same also. There was an appearance of a stamp, but cannot say it is a brand, as [I] asked several at Point du Chain [if] they thought it a brand. I had never seen the colt before.” Thomas Bruneau, sworn, [deponed]: “I examined the colt last fall [and] saw [it] with a mark on the thigh which looked like a brand or something to that appearance.” Pierre Dumais, sworn, [deponed]: “I examined it, but not very particularly. It looked like a stamp or something like it.” [C]25 Maximi. Voudrie, sworn, [deponed]: “I was at the Deft’s house, & Plaintf. and LaPine [were] there. Deft. asked Plaintf. if he cut the piece out of the ear. He said no, he had not. He said it was cut across under the left ear. [I] saw Defendt. shew the stamp to Pltf., who said it was more like a scar.” Charles Nolin, sworn, [deponed]: I examined Deft’s colt this spring, and when the thigh was washed the brand stood out, and the letter L plain. Compared the branding iron [and] saw it was the one which had been used. [I] am sure it had been branded.” François Rielle, sworn, corroborated the last witness’[s] statement. Baptiste Gaste, sworn, [deponed]: Knows Deft’s foal. It had [a] white front, and a dark streak along the back. “I examined the stamping iron, and the letter L corresponded to it. I asked Plaintiff if he had cut the piece out of the ear, [and] he said no. I was sent to the Bishop’s to ask him if the colt was his [and] he said yes. The brand slipped when branding. [I] cannot say if there was any white on the lip. I could trace the letter L with my finger.” The Jury returned verdict for Plaintiff. Costs to be left to the discretion of the Bench. Plaintiff’s costs: £3.2.6. Defendant’s do. 2.2.6.311

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[C]26

The General Quarterly Court, held on 20 August, 1863 312 Public Interest versus Wm. Drever [Case 244] 313 For Encroachment on the Public Road A. G. B. Bannatyne, sworn: “I saw Mr. [John] Fraser, Road Superintendent. I saw [him] with the Surveyor on the road leading to the Sturgeon Creek, and Mr. Drever’s property is on that road – the faggot road314 just behind Mr. Drever’s buildings. Mr. R. Goulet was the Surveyor. Defendant had informed me he had received notice to desist, but that he objected to this. The present road is the same which has been in use these last 17 years to the best of my knowledge.”315 James Hallett Junr., sworn: “I know this road that leads to Sturgeon Creek, and know it to be the same that has been during my recollection – this road between McKenny’s & Drever’s. The faggot road, I think, was made before Mr. Drever commenced his buildings. There was no road enclosed on Mr. Drever’s land in 1852. I do not remember any bridge at this part of the road. In wet and mirey seasons we used to pass a little above to avoid the mire just there. One or the other of these roads have been in use. Where McKenney’s and Drever’s houses are, the road used to pass of old times. I cannot say how long ago.”316 Andrew McDermot, sworn: “I heard of the road being surveyed. The road now in use is the straight road, but in wet years they go up a piece to dry ground. The land is Mr. Drever’s. I do not know whether the land is Mr. Drever’s or the Company’s. Mr. Taylor’s line, if correct, [indicates that] Mr. Drever’s premises encroach, but it is the road [that has] been in use for years. [C]27 I am not sure whether the present road to Sturgeon Creek was ever passing in the enclosed ground.”317 Roger Goulet, Surveyor, sworn:318 “I was called to survey the roads in the vicinity of Messrs. Drever, McDermot & McKenny. I began on Mr. McDermot’s lot, at a place where McKenny’s bakehouse stands. On this road we went [from] our starting place, being an old fence.319 We measured across two chains. We followed the old road, and did not take any direct line or course. The road appeared to be an old road, and there was some faggotting on it. I am not sure [whether] if a line [were] extended that it would cut off any part of the buildings, but my opinion is at present that the line cuts them.”

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Verdict for Defendant. Commentary This case is important not only because it concerns the location of the future City of Winnipeg’s central intersection at Portage Avenue and Main Street, but also because it illustrates the difficulty of applying land laws developed in a much more populous, long-settled, and well-surveyed country to a small corner of a huge, barely populated wilderness which, although rapidly evolving toward the settled model, was still much influenced by the communal access and freedom of passage that prevailed in its vast hinterland. The case also illustrates Recorder John Black’s frequent concern to soften the impact of the “letter of the law” in order to accommodate such continuing frontier influences. Following Fraser’s examination of his final witness, Drever asked Recorder Black a question about the right of the general public, under English common law, to create rights-of-way over private land by twenty years’ uninterrupted common passage. In his case, he pointed out, it had been only thirteen years since his fence on the land in question had been removed. This put Black on the spot. It was irregular for a judge to explain the relevant law before a case was closed. Yet Black had always considered his role to be educational as well as adjudicative; so he offered a partial explanation that he likely realized failed to tell Drever what he really wanted to know.320 He was saving a fuller analysis for his charge to the jury. After Fraser and Drever had both addressed the jury, Recorder Black delivered the charge,321 a lengthy one, no doubt prepared in advance, that gently but unmistakably nudged the jury toward what Black considered a satisfactory solution to the problem at hand. He began with a statement that might have been interpreted as supportive of the prosecution: “It is of growing importance to have the lines of public roads and the boundaries of private properties more clearly defined than at present. It is in consequence of the uncertainty that attends the question – where are the lines of this public road? – that the present prosecution has arisen. And I hope that at no very distant day the public roads will be marked out in such a manner as to render such trespasses impossible.” Then, however, he proceeded to point out several key weaknesses in the prosecution’s case. The alleged encroachment of the defendant’s property on the road westward to the Assiniboine River had not been stated with any precision; the extent of the encroachment on the road southward to the Red River had not been stated at all; and, of greatest importance, there was insufficient evidence of the precise location of the original roads to permit the jury to determine the existence of any such encroachment. No adequate maps of the roads in question, or evidence of previous surveys, appeared to exist. The recorder next turned to a review of the applicable law: With respect to the time of which the occupation of a road confers on the public a right thereto, I wish to make some remarks in addition to what I have already

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stated to the Defendant. No doubt in a country pretty well settled, where the boundaries of property are well defined, it is possible, and would be just, for the public to acquire a right to a road in a very few years. But as I consider that such an application of the law of prescription to this country is quite inadmissible, I shall say nothing more of that mode by which the public might acquire a right to it. Twenty years’ uninterrupted use is the period which would confer on the public a prima facie right to a road over land, and it would be extremely difficult ... to defeat that right. If, however, the public were in the uninterrupted use of a road for forty years, there is only one way [an agreement placing a time limit on such use] by which the public right to it could be defeated ... But in my opinion ... in such a country as this it might be productive of great hardship and injustice if, to all acts, we were to make a rigid application of the letter of the law. It is but a very small portion of the land belonging to settlers that is fenced in. Over a large section of owned but unfenced land, tracks run in all directions; and if ... we were to determine that whenever a track was used for twenty years it became public property, ... we would be virtually dooming a large portion of land in the Settlement to remain in the state of a common. And although this might perhaps be very suitable to the very peculiar practices of Mormons or Communists, is not quite suitable to the general taste of a British community ... [W]e should be bound to keep in view other considerations besides the question of time – such as the actual necessity of the road, its public purposes, the importance of those purposes, and several other points on which I need not enlarge. We know that such rights have been acquired to public roads ... But while, in our circumstances, we require to make judicious and discriminating application of English laws relating to prescriptive public rights, on the other hand it is important to protect the public in all its rights. The charge ended with a review of the evidence which, while sympathetic to the efforts of Fraser and Goulet to find a fair compromise between the right of public passage and the rights of adjoining landowners, once more emphasized the lack of crucial evidence: “In conclusion, I would state to you that if you find that the road was originally dedicated as a public road, or that the public had acquired a right thereto by 20 years’ uninterrupted use, you are bound to find the encroachment. If you have no distinct or reliable evidence as to the lines of road, or extent of the encroachment, there may remain doubts with you as to whether the Defendant has encroached; and if they do arise, it will be your duty to give the Defendant the benefit of them.” What was Black trying to achieve by this charge? Perhaps he had both short-term and long-range objectives in view. With respect to the immediate question at issue – was Drever occupying part of the public road? – it seems that, without wanting to disparage the work of conscientious public servants, Black wanted the jury to acquit Drever and give the Council of Assiniboia an opportunity to deal with the problem legislatively. A legislative solution could circumvent the difficulties caused by

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the lack of evidence concerning past use of the roads and could ordain pragmatic boundaries that would be as satisfactory as possible to all concerned. The jury, after a deliberation of several hours, did acquit Drever. But not all of its members seem to have got, or to have agreed with, the full drift of the recorder’s message: The Foreman subsequently stated that most of the Jury considered it possible that more evidence might be brought afterwards. From the evidence before them, they could come to no other verdict; though many of them were inclined to think that if further evidence were laid before them it might have altered the case entirely ... The Judge (to the Foreman): “Have you any reason to believe that further evidence is in existence?” Foreman: “I could not exactly say. We thought that more evidence respecting the original survey might be accessible.” This suggestion caused Fraser to apply for a new trial, claiming that he had a witness who could establish that the roads had been in use for at least thirty years. The recorder told him that any such application would have to be made in writing, and pointed out that although new trials were common in civil matters, they were “rather unusual” in criminal cases like this. In the event, the matter would be dealt with both legislatively and judicially before long.322 Did Black also have a broader concern in mind when he disparaged the application of English prescription law to Rupert’s Land? The general public had been freely traversing HBC lands since long before William Drever acquired his lot at the Red River Settlement. If passers-by had acquired common rights over the Red and Assiniboine trails by mere usage, they had done so early in the settlement’s history – and other passers-by had long since acquired similar rights-of-way in many other parts of the company’s realms. John Black was a thoughtful man, and was loyal to the enterprise that paid his salary. It would be highly unlikely that he had not considered the long-term implications for HBC charter rights of applying English prescription law to the intersection of these two prairie trails.

Robert Tait versus James Bird [Case 245] 323 Debt of £60.00.05 James Bird, sworn: “I gave Mr. Tait a bill of £60 and a bill of £40 in September, 1862. I lent the money he paid me. I never saw any letters. I swear I paid for the bridle. At Mr. Fraser’s I gave an order on Donald Murray. I had paid Mr. Murray £43 at the time I gave Plaintiff an order for £60. I returned the reaper to Mr. Murray as it was useless.” Robert McBeath, sworn: “I know Mr. Bird got a reaper from Mr. Murray, and [I] saw him return it to Mr. Murray, and [it] is lying there now. I never

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saw the reaper Mr. Tait sold Mr. Bird, [and] cannot say whether Tait’s was broken and repaired. I think £15 was all the reaper could be worth if Mr. Bird’s statements are correct.” Verdict for Defendant: Mr. Bird [to] pay to Mr. Tait £22.08.05, and an order for the delivery of a reaper & give a guarantee not to draw the bill.324 [C]28

General Quarterly Court, held on the 19 th November, 1863 325 Commentary The authority of court processes was the subject of two stern pronouncements by Recorder Black during this session. At the outset, immediately after the customary roll call of constables, Court Clerk Smith rose and informed the court that “[a] good deal of complaint had been made in consequence of the notices of the Court having been very imperfectly given for the last two General Courts.” The fault, it seemed, lay with the constables, whose duty it was to serve court notices and processes. The recorder stated that “[i]f a constable was found to have so far forgotten his duty as to delay sending forward these notices, it might perhaps result in his dismissal.” Later, during the trial of the first case, counsel for the plaintiff complained that “a very material witness to their case was not present. He had been summoned, and was in attendance during the early part of the day, but had since gone home.” Black once more responded firmly: “The Judge said that all witnesses and jurors were bound at their peril to obey the magistrates’ summons. The administration of justice being a matter of vital consequence to a civilized community, and the attendance of jurors and witnesses being a most important part of such administration, it was the bounden duty of every person summoned ... to give his attendance at the time the summons required.”

J. M. House versus Roger Goulait [Case 246] 326 For the [Unjustified] Detention of Liquor Roger Goulet, sworn: “I am one of the collectors of customs in this District, and I seized some spirituous liquor belonging to Plaintiff in the performance of my duty – and had acted in conformity with the laws of this Settlement. I was informed by Collector W. Dease that the representative of the Plaintiff had made a false entry of his property at Pointe Coupée. Marion the freighter informed me that the packages marked ‘sugar’ contained liquids of some kind. After I saw Mr. House, the Plaintiff, I took the

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liquor I found by shaking the kegs, and also by the leaking. I know nothing of the bargain between the parties. I knew that the kegs contained liquor before I saw Plaintiff, and that Marion had passed the keg at Mr. Dease for sugar.”327 Flora Gorneau,328 sworn: “I was at St. Pauls, and brought goods from Georgetown for Plaintiff for 10/ per 100 lbs. weight to Pembina. I was to bring the goods to a certain lake about 3 miles below Pembina. I know that Marion brought goods for Pltf. from the same place. Some men asked me for Plaintf’s property. I told them to give me a receipt for them and I would do so.”329 Peter McClerky,330 sworn: “I went to the States for Plaintiff. Max Marion also bargained at 10/ pr. 100 lbs. to Pembina, and agreed to take 200 lbs., but could not take them farther. I am clear that the goods Marion brought for Plaintiff were not to be brought farther than Pembina, and he took the [C]29 goods at the rate I have stated.” Alexander Paul, sworn: “I got liquor through this year – about 16 galls.331 There were 3 kegs boxed up – not intended for this place. It was boxed up to protect it. They were not marked liquor.332 I came through with the carts.” Did not know anything of the present case. Angus McKenzie, sworn: “I know R. Goulet, and Mr. House the Plaintf. I was present when Mr. House arrived on the Assiniboine. Mr. House’s carts were there, and some were not yet crossed. Mr. House stood awhile and talked to R. Goulet, and took some papers. I asked Mr. House if he had some liquor seized. He said no, but he asked R. Goulet about it. He said no. I went to Marion with Mr. House [, who] asked Marion if his bargain with him was not to bring his goods only to Pembina.333 I heard him say this twice in my presence.” William Dease, sworn: “I seized these goods through R. Goulet. I knew the goods belonged to Mr. House. Maxime Marion told me so. The kegs were 10 galls. in size. Maxime Marion told me he had 9 pieces of property for Mr. House. I asked what were in the kegs, and he said Mr. House said they were sugar. In shaking the kegs they sounded as if they contained liquor or liquids. I bored a hole and found alcohol. I gave him (M. Marion) a note to R. Goulet to this effect. I did not examine the whole, but told Mr. R. Goulet to examine the whole. I was freighting for Mr. Paul. There was no mark on the box.” But does not remember correctly. “I apprised Mr. Goulet, both by letter and message. After I came down Marion told me he suspected Mr. House was intending to smuggle.”

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Verdict for Plaintiff: Mr. House to get the liquor on his paying the duty thereon and that the expences [costs] to be paid by the public. Commentary What seems to have happened here is that William Dease, the settlement’s customs collector at the US border, detected, in a shipment carried by Maxime Marion on behalf of J.M. House, undeclared liquor in containers marked “sugar,” and advised his colleague Roger Goulet (Goulait) at Red River to seize the contraband. When Marion reached the settlement, and was met by House, Goulet was on hand. When House acknowledged the presence of the liquor in the shipment, Goulet initially just asked him to pay duty on it; but when Dease told him what happened at the border he confiscated it instead, suspecting House of smuggling. House then made a show, in the presence of witness Angus McKenzie, of berating Marion for carrying the goods into British territory rather than stopping at Pembina, as he claimed to have instructed him. When Goulet refused to return the seized liquor, House sued him civilly for the tort of detinue – illegal detention of the plaintiff’s property. To corroborate his claim to have ordered Marion to stop at Pembina, the plaintiff called Flora Gorneau to tell how, on another occasion, he had carried goods for House from the United States to a rendezvous near Pembina,334 and Peter McClerky was called to testify that Marion had indeed been instructed to stop at Pembina. While it is tempting to conclude that this case demonstrated the jury’s lack of respect for the high tariffs settlement authorities imposed on importers of liquor, it should also be noted that the weight of evidence, if believed, favoured the plaintiff. Recorder Black’s lengthy charge to the jury, while even-handed, appeared to support the plaintiff also. Black seemed particularly impressed by Alexander Paul’s evidence that it was not unusual to disguise liquor shipments “as a means of securing it against the depredations of Indians and other dangers on the road.”335 [C]30

Second Day of Sittings, 20 th November, 1863 Elie Genton versus Alexander Paul [Case 247] Damages £16.00.00 [Refund of Cartage Charges] André Guilboch, sworn: “I remember Mr. Paul saying there was more than eight hundred pounds on each of Plaintf’s carts, and also said he would give him 520 lbs. more. I know that some pieces were taken out and others put in. I know when Plaintiff asked to settle Defendant said Plaintiff was due to him £1.00.00. Defendt. said Plaintf. had brought 6,400 lbs. I

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heard the Plaintf. ask Defendt. to settle with him. He could not understand English, which they were speaking. I cannot say I was employed by Plaintiff. I went to Defendt’s store. Never asked Defendt. for money.” Isiah Marchand, sworn: “I know that Plaintiff asked the Defendt. to weigh the goods he had brought in for him. He, Defendt., replied they had been broke up. Defendt. told Plaintf. to go to the Devil. When I went I was in company with the Plaintf. When we went in I only saw Defendt’s clerk in presence. When Plaintf. asked to settle, the clerk said the pieces were opened, but not the whole.” Edouard Marion, sworn: “I know that Pltf. asked the Deft. for an ox, and he said yes.” But does not know the price of the ox. And Pltf. agreed to give him 5 or 600 lbs. freight to bring through. William Dease, sworn: “I know the bargain made with Pltf. at 800 lbs. pr. cart, and 20/ pr. 100 lbs. I was freighting for the Deft., and he promised if there was not a sufficient quantity he would purchase at St. Paul. I know that we placed our respective loads in Deft’s store separately, and when [C]31 we went on the Monday he gave me to understand that he had opened some of the pieces. When I asked Deft. to settle, he told Pltf. he was due to him 6/. I know Defendt. said if he, the Pltf., troubled him he would make him pay damages.” Mr. Cram, sworn: “I am Defendant’s clerk. I am not aware that Plaintf. asked to have the goods weighed on Monday. I heard Elie ask to have the goods weighed. Defendant told him to get a person who could speak French and English and he would weigh them. He said he would see about it. I have not seen him since till today.” Mr. Alexander Paul swore to the correctness of his accompt. The Jury retuned a verdict for the Plaintiff for the sum of £1.10.00. Costs to be borne by each party.336 Commentary The defendant agreed to carry the plaintiff’s goods for 20 shillings (£1) per 100 pounds of cargo. Believing that he had been delivered 1,600 pounds less cargo than the defendant claimed, and had thus been overcharged £16 for the cartage, the plaintiff sued for a refund of that amount. The jury found that he was entitled to only a little over £1, and the court decided, presumably because both parties were partly wrong, that each should bear his own costs.

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General Quarterly Court held 18 day of February, 1864 337 The Queen versus Alexander Fielding [Case 248] Larceny [Theft of Livestock and Gear] The proceedings in this case were by Information.338 The Prisoner pleaded Guilty. Sentence: 6 months’ imprisonment from this date. Commentary Before sentencing Fielding, whom the Nor’-Wester described as a “young man,” on this first charge, Recorder Black chose to lecture him about the seriousness of this particular crime in a community like Red River, as well as to elaborate upon his previous public comments about penal servitude and imprisonment with hard labour: Those plains, and the grass growing thereon, form ... a very important part of the property of the Settlement. Very many depend to a great extent on the pasturage there found. But if the animals grazing there are not safe ... then the value of these plains as a grazing ground for the Settlement is practically destroyed. This case therefore concerns every man in the Settlement very deeply. With regard to other forms of property there are various means of making it secure: there are gates, bars and bolts, and the immediate superintendence of the proprietor. But, for this grazing on the plains there is no protection save for what the law affords ... The offence is therefore a very serious one.339 The statutory punishment for the theft of farm animals, Black pointed out, was accordingly severe: from three to fourteen years’ penal servitude (banishment to a penal colony in a place like Australia); or imprisonment for up to two years, with or without hard labour and/or solitary confinement. Although penal servitude might have been appropriate for his crime, the recorder told the prisoner that it was not within the power of the court to impose it. And while, in his opinion, imprisonment with hard labour would be desirable, the settlement unfortunately lacked “proper means of keeping you beneficially employed.”340 This left ordinary imprisonment as the only alternative, and the shortest sentence the court could impose and still “impress on your mind the greatness of the offence committed against the community” was six months, plus the three months Fielding had already been in custody awaiting trial.

The Queen versus Alexander Fielding [Case 249] Larceny [Theft of Ox]

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Pleaded Not Guilty. A Jury being empanelled, the case proceeded. [C]32 William Pruden [was] sworn, and deponed that he had lost an ox. One day he met one of the Company’s men and, speaking of animals that the Prisoner had taken from the Company, “I told him I had lost an ox. He also informed me that he, the Prisoner, had an ox hide fresh at his place when the Company’s cattle were found at his place. I requested to see the hide. I told the colour and marks of the ox I had lost before I saw the hide. As soon as I saw it, I recognised it to be the hide of my ox. It was only three days after I had had a line and that I missed it. Did not see any marks on the hide of gore or stab.” Angus McKay, sworn: “I found an ox hide on a shed of Prisoner’s premises. I took it to the Company’s fort. I asked Prisoner if it was not the hide of one of the Coy’s oxen. He said no, but said nothing to my taking it away. I have not seen the hide since.” William Sinclair, sworn: “I know the Prisoner at the bar. I sold an ox to W. Pruden. Passing by W. Pruden’s place, I called in, and he asked me if I should know the hide of the ox I had sold him. I said yes. He then shewed me an ox hide. I told him it was not the one. He then shewed me another one lying on the barn floor, doubled in two. I said: ‘If the underside is like this side it is the hide of the ox I sold to you.’ I turned the hide, and I identified the hide of the ox I had sold to Wm. Pruden.” John Vincent Junr., sworn: “I never sold or gave an ox to the father of the Prisoner. He worked for me 1 month and 17 days. I paid him in cash. Never remember to have spoke to Prisoner’s father about an ox.”341 Verdict: Guilty. Sentence: 3 months’ imprisonment, counting from the expiration of former sentence, making altogether 9 months.342 [C]33

Sally Favel versus George Setter [Case 250] Damages £20.00.00 [Road Accident] Humphry Favel stated his mother’s case briefly as follows: “On the 27th December my mother was going to church. And Defendant came after her,

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and his horse knocked her down, and the cariole passed over her, and she stated her damages at £20.” Adam McDonald, sworn: “I was on my way to church on the bank of the river. I saw the Plaintiff going on at a steady pace. She was not dodging about from side to side. Defendant had bells on his horse, and he was driving at a good pace. It was not blowing. There were three other people behind the Plaintiff, and they cleared out of the track. I saw Defendant run down the Plaintiff. The first I saw of her was she was under the horse legs, and the next I saw of her she was coming out from under the cariole. If she had crossed the road I could have seen her do so.” John Lambert, sworn: “I saw the Plaintiff coming from under the cariole. Did not see the horse knock her down. I saw Plaintiff walking, and there were two boys behind her. I was on the bank. Defendant had bells. G. McKay and Adam McDonald were passing on the bank with their carioles and bells. Plaintiff told me since that she could not tell where the sound of bells came from behind her. Defendant was driving at a good pace but nothing remarkable.” Doctor C. J. Bird, sworn: “About three weeks after the accident I saw her. She was bruised and swollen over the chest, and appeared to have got her bruise by falling on her face, as the bruise extended over the chest.” Defence: [C]34 George Donald Setter, sworn: “I was about ten yards behind the Plaintiff when Deft. passed me. I was on the right side of the road when Defendt. passed me, and the Plaintf. on the same side as I was. She ran to the left side, when Defendt’s horse came in contact with her and knocked her down. If the old woman had kept on the right side she could not have been hurt. As it was, the cariole passed over the upper part of her leg. The head of the horse was nearly opposite to the Plaintiff when she ran to the left side. She appeared frightened, and looked behind her at the horse. Deft. had bells on his horse. Plaintiff fell to the right side.” George McKay, sworn: “From the top of the bank to the track on the river is more than 100 yards. The first time I saw the Plaintiff, she was about 10 yds. before Defendt. The next time I saw her she was sitting in the track. Defendt. got out of his cariole and went to the Plaintff. He was about 10 yards past the Plaintf. before he brought up from where he knocked Pltf. down.”

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Verdict for Defendant, No Damages. Commentary The Nor’-Wester’s account of this case noted that Recorder Black “took occasion to remark on the danger of reckless driving; and strongly recommended that drivers follow the English practice under which, when two parties met on the road, each pulled to the left; and when one overtook and wished to pass and other, he pulled to the right.”343

John Bruce versus James Tristram [Case 251] 344 For purchasing Spirituous Liquor for and Giving it to Indians: Penalty £10.00.00 [Constable] John Bruce, sworn: “On the 23rd Decr. I saw Defendant with two Indians. When I got opposite to them the two Indians went off and left the Defendant by himself. He went to the store, and I went in also. And when I came in he was putting a bottle into his shirt, and then went out. I followed, and saw him at the [Fort Garry] bastion with [the] two Indians I had before seen with him. I then saw Defendt. talking to a man – they had their backs to the Indians. The Indians [C]35 told me they supposed I knew what they were about. After they both came to my place the same evening, they said they had first asked another man, and he had refused and pointed to Defendt., who was just coming to the Fort. I did not see Deft. buy the rum, but the bottle could not hold more than half a pint. I saw the same bottle the same evening at my place with the Indians. I swear it is the same bottle.” Weesakecoon, sworn according to the Indian custom: “We were two Indians. I took the money from my companion to give to Defendt. to buy rum: 1/3. There came another person, and we thought he saw the bottle. That person was Bruce, who went into the Fort. When Defendt. came out he said we will take a drink, and we said yes. He took a drink, and we went round the bastion and we drank there. He was not offered payment; he got one drink and no more. I did not see the man named Stephen Green at the Fort on that day. I saw someone at the Fort gate.” Does not know who. “Had it been Stephen Green I should have known him.” Pahpawangai [was] sworn in Indian custom, and corroborated the last witness, word for word all through.

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Defence: Stephen Green, sworn: “Some time before Christmas, Deft. came to me, and [we] went from thence to the mill and bought some bran. I gave him 4/6. He got the bran, and brought 1/6 back. I got a bottle from Dr. Schultz. We went together to the Fort. There was someone talking to Defendt. Cannot say [whether] they were Indians or not. One had on a white coat, the other a blue one. They were too far apart to pass either money or bottle to each other. I called Defendt. to make haste, and I stopped outside at the front gate. After waiting some considerable time I went to the shop, and met Defendt. coming out with the bottle in his hand. I then saw Bruce, who called him, the Defendt., and they both passed out at the back of the [C]36 store to the side gate, where they stood talking a long time. From the time I went up to the Fort, I swear Defendt. was not out of my sight – only when in the shop.” Doctor Schultz, sworn: “I know that Tristram was at our place about the time specified. Stephen Green asked leave of me to go a part of the way with Tristram. He got a bottle from me,345 and they went off towards the Fort, where they bought rum – and drank it by the appearance of Stephen when he returned. I gave the bottle, and since that I know nothing about it.” Verdict: Guilty, recommended to mercy. Penalty: £5 and one month to pay it in. Commentary The Nor’-Wester’s account of this case stated, The Judge spoke strongly against the practice of selling liquor to Indians; but in consideration of the Prisoner’s poverty, fined him only £5 – half of the sum fixed by law.346 The time for payment was further extended over a month. Tristram (bowing and smiling like one who felt immensely relieved): “Thank you, gentlemen of the Jury, thank you your Honor, thank your Worships.” The Judge: “Tristram, you are to pay this fine in a month.” Tristram: “I’ll do my best, yer Honor, to pay the half of it.” (Laughter) The Judge: “But that won’t do. You must pay it all in that time.”347

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Second day’s sittings, 19 th February, 1864 John Bruce versus Robert Mulligan [Case 252] 348 For kindling a Fire in the Open Plains at the Prohibited Season. Pleaded Guilty. And the father pleaded that his son was only between 11 and 12 years of age. John Bruce, sworn:349 “I had hay [to] cut near the Little Mountain. On [a] Sunday in the month of September I saw a smoke. When I left Mr. Drever’s on Saturday, there were no fires about. On the Sunday, I went out to see my hay, and found it all burnt. I heard that it was the Accused who had fired the plains. Cannot swear that it was the fire lit by the party accused. There was two fires at a distance from each other. My hay was not burned round.” Joseph Johnson, sworn: “I went out in company with Robert Mulligan, and Ramsey. Mulligan got off his horse at a squirrel hole, and lit a fire at the squirrel hole. I and Ramsey would have put it out, but he, [C]37 Mulligan, said ‘Let it rip.’ Afterwards we passed on, and we saw a fire rise up. We went on to the second bluff, and when on a little of this side of the second bluff Mulligan lit another fire. And while lighting this second fire a man came to us. I do not know his name, but that is the man (pointing to the man in court). The reason that I and Ramsey wanted to put out the fire was that we were afraid it would burn up the hay.” Cyril LaFond, sworn: “I was out sometime last fall. I saw these boys going towards Little Mountain, [and] saw a fire about half an hour old. I passed through the burnt ground, and overtook them. They were at that time about lighting another fire. The Accused was the one who was lighting it. I told him he did wrong. He said it would not run. There was no other fire about. I saw them leaving the place of the first fire. I know that the three boys now in court are they. I asked Mulligan if it was them who had lit the first fire, and he said it was. On Sunday, about an hour before sunset, I got on a stack and saw two distinct fires going at a distance from each other. They had not joined when I came from there. The 27th of September was the date. I was not above eight paces from these boys while speaking to them.” Verdict: “We find Robert Mulligan Guilty of firing the plains, with the intention of the fire running.” But recommended him to the mercy of the Court.

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Sentence: that he pay the penalty of £5.00.00.350 Commentary Recorder Black’s charge to the jury351 stressed, as it did in the case of the cattle thief, the gravity of offences against common property: The offence is one striking very deeply at the welfare of the Settlement. One great enemy of the plains is to be found in such a man as the Prisoner yesterday [the cattle thief]. Another great enemy is the person who will wantonly go into the plains and kindle fires there, destroying thereby the food which is absolutely necessary for the maintenance of the animals ... [N]othing imposes so much hardship in the Settlement as this fiery visitation. Not only does it sacrifice labor and money, but it frequently sacrifices the lives of the animals themselves; and if the person committing the offence were fully responsible, and the case of guilt clear, nothing could be more desirable than that he should have to bear the full penalty. But there were three factors bearing on the extent of the penalty about which Black seemed to have difficulty making up his own mind. The first was whether the boy had set the fire “with intent” to let it run out of control, in which case the penalty was £10, or whether he was merely negligent in regard to its spread, in which case the fine was merely 5 to 50 shillings. The second was whether the accused, being under the age of fourteen (the general “age of legal discretion”), would be considered, as an individual, to be criminally responsible by the jury. And the third was the fact that “[i]f any penalty is to be imposed on this boy, it will undoubtedly be on the father that the penalty will fall.” After much rambling, the recorder finally seemed to resolve these considerations in favour of leniency: Well, supposing that instead of finding this boy guilty of kindling a fire with intent to run, you find him guilty of kindling one negligently, without intent. Then you would reduce the penalty, and leave it discretionary with the Court to fine him in any sum between 5s and 50s. And if, under such a finding, the Court were to impose a fine of 50s, perhaps that would be sufficient to convince the boy of the determination to punish with a severe hand all those who might be instrumental in kindling fires, and thereby doing damage to the Settlement. The jury, less soft-hearted than the recorder, found the boy guilty of setting the fire with intent that it should run, but recommended mercy. The court accordingly imposed, over the legally correct objection of prosecutor James Ross, 50 per cent of the prescribed fine.

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[C]38

The General Quarterly Court Held on Tuesday the 17 th day of May, 1864 352 William McGillis versus James Swain [Case 253] This action was for a Debt due to Plaintiff for the sum of £9.12.00. Defendant acknowledged the debt & had, since he had been summoned, paid to Plaintiff the sum of £4.00.00, leaving the balce. of his debt [as] £5.12.00. viz.: Debt By cash paid

9.12.00 4.00.00 £5.12.00 Costs of suit 12 £6.04.00

Decision of the Bench that the Defendant pay six pounds four shillings in fourteen days.

Vital Tourcotte versus Baptiste Robbilliard [Case 254] This action was raised for a Debt of £1.02.06, and Damages of £3.00.00 for not having brought down the timber he was sent for by an excuse that the water was too shoal[-ridden]. Amable Hogue, who being duly sworn and interrogated, deponed: “I cannot state how long after the Plaintf’s men had returned that I came down the Assiniboine with a raft containing 200 pieces of green poplar wood (logs). I do not know how far above where I took my raft from [it] is to the [C]39 place where his people went for his raft – I mean the Plaintiff’s wood. I had only three tier[s] of logs on my raft. I took my wood above the Pointe Coupée, and brought it down to Sturgeon Creek the year before last. All which is truth, &c.” Charles Curtis, being duly sworn and interrogated, deponed: “I came down the Assiniboine a little after the people belonging to the Plaintiff had come away. The raft I came down with was in three cribs. I had to employ two men to assist me in getting it down. I left about 60 pieces en route. I know nothing about the time that Robilliard went up. All which is truth, &c.”

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Esidore Villebrun, who being duly sworn and interrogated, deponed: “I was present when Plaintiff told Defendant to be sure and not leave his wood should he be obliged to make only one tier on the crib. All which is truth, &c.” Pierre Martin, who being duly sworn and interrogated, deponed: “The Plaintiff engaged me to fetch down his timber with another man. The Plaintiff told me to be sure that the water was not too low. If it was, it would be unnecessary to try it. I can only say that the people with me said that at the latter end of May last year the water was higher than in the present month of May. I was 14 days in my trip. I was not limited in my provisions, nor did I break my raft to pieces. All which was truth, &c., &c.” Defence: Joseph Robilliard, who being duly sworn and interrogated, deponed: “I was with the Defendant when353 the [C]40 Defendant – in reply to Plaintiff, who called out to him from the opposite side of the river – told him I could not go, but [he] would send one in my place. I was asked to go, and I said I could not, but would get another – Esidore Boucher – to go; & I told him I had received in part payment a dressed skin. Plaintiff called out to us not to start yet, as he had heard that his wood was seized. I saw Abram Boulanger, who had cut the wood for Plaintiff, and he told me to tell Plaintiff that his wood was not seized. On my way back [I] saw Plaintiff, and told him the message Abram had told me to deliver.” Esidore Boucher, who being duly sworn and interrogated, deponed that he recollected the Plaintiff calling across the river. “I cannot say whether the Plaintiff asked for me to go – or did [sic] the Defendant offer me in his place – but I know the Defendt. asked me to go, and I consented. But he, Plaintiff, stopped us, as the wood, he said, was seized.” Verdict for Defendant: Costs 5/

Baptiste Goulait versus Henry McKenny & Co. [Case 255] Damages £15.00.00 Both parties Request that the case may be Referred to Arbitration and Costs to be paid by Defendant.

Andrew McDermot versus William D. Lane [Case 256] 354

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Debt and Damages £20.05.00 A. G. B. Bannatyne, who being duly sworn and interrogated, deponed: “On the second Monday in March, 1863, I went to Mr. Lane’s with a message from Mr. McDermot. I told [C]41 Mr. Lane that Mr. McDermot was willing to give him the whole of the hay in the yard for 60 loads on the next day (Tuesday). I went with Mr. Lane, and took Mr. Morgan to show us where the hay was. I, on coming to the yard, saw three stacks, and in my opinion there was 60 loads. Mr. Lane desired me to inform Mr. McDermot that he would take the whole of the hay in the yard by the load, and only take reasonable loads. And [he] requested me further to tell Mr. McDermot to return an answer as soon as possible. All which was truth, &c., &c.” A letter purporting to have been sent by Mr. Lane to Mr. McDermot was here read in the Court. Henry McDermot, who being duly sworn and interrogated, deponed that his father (Plaintiff) sent him to see if his hay was burnt. “I went to the hay yard alone. I saw Mr. Morgan afterwards. When I got to the hay yard I perceived that a stack of hay had been burnt. The stack had been 20 steps long by 5 steps broad. When I saw Mr. Morgan he told me he had seen a smoke rising. This was in the month of March. I cannot tell how deep the ashes were. All which is truth, as I shall answer to God.” Mr. Clark, who being duly sworn and interrogated, deponed: “I conveyed a letter from Mr. Lane to Mr. McDermot, and he, Mr. McDermot, told me verbally to tell Mr. Lane he can have the 2 stacks. On the Tuesday following, I gave this message to Mr. Lane, and he replied that he had already taken the hay. All which was truth, as &c., &c.” Robert Morgan, who being duly sworn and interrogated, deponed that he remembered Mr. Lane and Mr. Bannatyne coming to his place, and that: “I went with them to shew them where Mr. McDermot’s hay yard was. We all three went to the top of one of the stacks. Mr. Lane asked me to say how many loads might be in one of the stacks. I replied that there might be 20 loads, and the other one about the same, more or less. There were 2 stacks, and some nigh covered over with snow. Saw Henry [C]42 McDermot, and he spoke about hay which had been burnt. All which is truth, &c., &c.” Clement Fidler, who being duly sworn and interrogated, deponed: “I know where Mr. McDermot had his hay. I went there on a Sunday. I saw no hay there, but saw plenty of fresh ashes on the snow. There was plenty of ashes, and there must have been much hay burnt. The bottoms of 2 stacks

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shewed, which had been burnt. The fencing was not burnt. All which is truth, &c., &c.” Baptiste Morrissette, who being duly sworn and interrogated, deponed: “I was engaged by Mr. McDermot, who sent me up to see his hay yard, and to see if any of his hay was burned. When I came there to the yard I perceived a quantity of old hard ashes, but apart from them [I] saw some fresh ashes, and saw distinctly where the snow had quenched the fire. I took some of that hay from the snow, and I swear that this is a sample of the hay that was burnt. The cattle had passed about, yet I could perceive the fresh ashes. I cannot say how many stacks had been burnt, because the fire and cattle had been all over the yard. The ashes were fresh, and about 8 inches deep in some places. I took this hay in the month of March. I kept it because I thought it might be useful. All which is truth, &c., &c.” Joseph McLeod, who being duly sworn and interrogated, deponed: “I live near Mr. Morgan’s. I went to Mr. McDermot’s hay yard towards spring. I know that all Mr. McDermot’s hay had been burnt the year before, and the ashes of that time had become hard. But besides these ashes of old date I saw fresh ashes on the snow. I had heard that Mr. Lane had taken some of the hay. Two days after, I went to the yard to rake up any that might have been left – found none. [I] saw no fire nor smoke, on one side of the stack. There was much ashes [C]43 at one end of the stack. It was as far as the [courtroom?] door from the fencing. The side of the stack was nigher [closer] than the door from the fencing. All which was truth, &, &.” John Favel, who being duly sworn and interrogated, deponed: “I know that Mr. McDermot has a lot on the Assiniboine. In coming towards spring I went to this lot, and saw the hay yard. There was no hay there, but saw fresh ashes: some on the snow, most on the place where a stack had been. The stack had been a long one. I did not hear before that day that Mr. Lane had taken the hay. I saw some little hay scattered about. Saw some fresh ashes on the top of the snow. All which is truth, &c., &c.”

Second day of sitting: 18 th May, 1864 The same case continued: Defence: Joseph Lepinnée, who being duly sworn and interrogated, deponed: “I went with others to haul hay. We took twenty sleds to Mr. McDermot’s yard. We loaded 19 sleds, and had, by scraping up, and combing our sleds, made out about 19¾ of loads. There was only 1½ stacks in the yard. After

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this I went down to this Fort [Upper Fort Garry]. A little boy brought a message to me saying that Mr. Bannatyne wanted to see me. I went to his kitchen, and, not seeing any one there I walked through to the front of Mr. Bannatyne’s house. And the same little boy who had told me Mr. Bannatyne wanted me, he – the boy – now said: ‘It is my grandfather wants you.’ I went to Mr. McDermot’s, who took me into a room by ourselves, and wanted me to swear that we had burned the hay. I told him I could not swear to anything of the kind. He offered me pay if I would swear we had burned it. He said: ‘I know you are afraid to confess it for fear of paying for it, but I will clear you from that.’ I told him I would not swear to a lie – that there were five or six others who knew we had burned no hay. The fence [C]44 round the yard was very close to the stack, and if the stacks had burned the fence would have burnt too. We took a deal of the ashes of the former year, on which the stacks were built, among our hay in loading – particularly the last load or 20th. All which is truth.” George Fidler, who being duly sworn and interrogated, deponed: “I remember being sent with 20 sleds to McDermot’s hay yard, where I saw one and a half hay stacks. We took the whole of the hay we found there in the yard, and loaded 19 sleds. But the 20th load was a good deal wanting to make out a good load. I saw old ashes all along the bottom of the stacks. We lit a fire, but put it out with snow before leaving. We cut round the stack with an axe. The roads were bad. All which is truth.” Jean Bapte. Langan, who being duly sworn and interrogated, deponed. This Witness corroborated the preceding witness, with this addition: that the fencing was made close to the stack, and with dry rails, and [that] when they left the yard there was no fire nor hay in the yard. “All which is truth, &c., &c.” Joseph Fidler, who being duly sworn, corroborated the above witnesses in all particulars relating to the case. Alesandre Arcand, who being duly sworn and interrogated, deponed, [and] corroborated the above witnesses in all [particulars] relating to the case. Bapte. Braconnier, being duly sworn and interrogated, deponed that he had stacked the hay in question in the yard opposite Mr. Morgan’s a year last fall. He built 3 large stacks, and began another. There was ashes all over the yard. [He] made the stacks as follows: 60 loads, 19 do., and ½ do.: 88½ [sic] loads. Reill & Franks helped me. Made right stacks, but cannot say how much hay each stack contained. All which is truth, &c., &c.”

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[C]45 François Jannott, who being duly sworn, deponed that he had seen Mr. Lane’s people passing his place with 20 loads of hay. One load appeared less than a good load: perhaps only ¾ of a load. Had met one of McDermot’s sons hauling hay below Louison Gagnon’s house. Did not ask where he took the hay from. Mr. Lane’s people passed only once down. “All which is truth, &c., &c.” Pierre Poitras, sworn, deponed that he had seen Mr. Lane’s 20 sleds passing – one sled about ½ or ¾ loaded. Does not know if the sleds passed more than once. Mr. W. D. Lane, being duly sworn, deponed that he had purchased from Mr. McDermot 21 loads of hay out at the Grand Marrée d’Cajue [Cadieux?] yard the same year he got the 20 loads at the Point on the Assiniboine alluded to by all the witnesses, making altogether 41 loads – “for which I offered to pay @ 5/ pr. load – £10.05.00 – but Mr. McDermot refused. All which is truth, &c., &c.” Andrew G. B. Bannatyne, being recalled,355 stated that he was present when Joseph Lepinnée was speaking about this case, and Mr. McDermot said: “You know you burned the hay and [are] afraid to tell the truth; but tell the truth and you will not have to pay anything. There was no bribery intended or mentioned. Did not hear him say if he told he had burned the hay he would pay him. All which is truth.” Verdict for Plaintiff: Costs of Suit:

£20.05.00 2.15.06 £23.00.06

Commentary This case involved legal responsibility for the partial frustration of a not quite complete business deal by reason of a fire of unknown origin. Andrew McDermot owned three haystacks of varying sizes, which he proposed to sell to Hudson’s Bay Company representative William Lane. After examining the stacks, Lane sent McDermot a message that he would buy all the hay at 5 shillings per wagonload, and requested an early response. Then, without waiting for the response, Lane sent employees to McDermot’s yard with twenty wagons to pick up the hay. When the employees got there, they said, all they found were one and a half haystacks, and the ashes of the third and largest stack. They then loaded and carted away all the surviving hay, which they claimed amounted to only nineteen and three-quarters wagonloads. McDermot took the position that, Lane’s men having removed the hay before he had even agreed to sell it on the proposed terms, Lane owed for everything he had

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offered to buy. In any event, he contended, Lane’s employees must have been responsible for the fire. McDermot’s witnesses estimated that the three stacks had held sixty loads of hay in total, which, added to twenty-one loads from a previous transaction that Lane admitted, brought McDermot’s loss, at 5 shillings per load, to £20.05.00. The jury, perhaps blaming the fire on Lane’s employees without a shred of supporting evidence – or possibly proceeding on the legally dubious proposition that Lane’s unaccepted offer to purchase the hay had shifted the risk of loss to him – awarded McDermot everything he claimed. Although it might be unfair to say that the jury exhibited an anti-HBC prejudice here, it is probable that the average juror, having to choose between the company and the hard but generally straight-shooting McDermot in a matter where the merits were closely divided, would favour the latter. But was the allegation that McDermot tried to bribe Joseph Lepinnée disposed of satisfactorily by the explanation in Bannatyne’s closing testimony?

Edward Bird vs. Wm. Slater [Case 257] Debt £16.00.00 This case went by Default. Constable swore to Delivery of Summons. Plaintiff swore to his demand. Decision: to pay Costs 10 days grace to pay

£16.00.00 11 £16.11.00

[C]46

Third day of sittings: 19 th May, 1864: 3 rd day [blank] Berard versus Jerry Gunn [Case 258] 356 For a Horse claimed by Plaintiff Plaintiff stated that his horse had strayed with two other horses belonging to his neighbours, and both he and they could learn nothing of their whereabouts till he saw an advertisement in the Nor’-Wester. He and others accompanied him and identified it as his horse. Defendant stated that he took the horse as one being at liberty contrary to law, he being a stallion. I took the horse in, and held him till the owner should turn up. I advertised him in the Nor’-Wester paper, and never let him go till I bought him from Joseph Whiteway, who claimed him. One day I met Toutsaint Voudrie & François Carrier. They were asking me about the horse. I asked them what marks their horse had. All I could understand

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from them was that their horse had a white face, or some white on the face. Carrier said this, but also said he was not sure, but he thought so, I acceded to [their] wish that they should see the horse. When they saw it they claimed it as Pltf’s. I told them I thought the horse had been stamped with a W. I had heard that the horse had been examined while at Reill’s. The horse is 3 yrs old. Carrier said he would know the horse so soon as he would see him, but he wished to look at his teeth. I sent a letter to Josh. Whiteway concerning all this, but he did not answer it. Whiteway told me the horse was lost on the Wt. side of the river, and I found it on the Et. side. The stamp is large, but not deep – on the right side. Peter Fidler, being duly sworn & interrogated, deponed [C]47 that he had, the winter before last, seen a dark brown horse [and] the little stallion with him. “A year ago this spring I saw the same two horses again at Mr. Cumming’s place. They remained two or three days or more, and went off. I have never seen them since. I knew they were strange horses. I told Plaintiff that Josh. Whiteway had got a horse that did not belong to him. All which is truth, &c., &c.” Toutsaint Voudrée, being duly sworn, deponed that a year ago last spring he had seen the colt at Roman Lajomonier’s. He examined it well. It had no mark or brand then. It was kept there 2 nights, and during the time the colt was there Defendant sent word “that if the colt was not claimed by them to send it back to him.” After this Deponent and Defendant went to see the colt together, and “Defendt. then told me that he had bought the colt and paid for it. Carrier saw the colt, and said it was Barrard’s property. We took the colt out of the stable to examine the mouth. Defendt. stopped Plaintf. I saw the teeth indicated 3 years old this spring. It is the same colt I saw last spring. All which is truth, &c., &c.” Romain Lagomonier, being duly sworn, deponed that he had the colt the last spring at his place, and corroborated the evidence of the preceding witness, and says that he thinks the colt was then but little more than 2 years old. It had neither mark or brand. “All which is truth, &c., &c.” François Carrier, Alexandre Pagé [and] Louis Flammond corroborated the chief points of the preceding witnesses, and swore positively that the horse was Plaintiff’s. “All which is truth, &c., &c.” Defence: George Whitford, being duly sworn, deponed that he was present at the stamping of a horse foal of a year old about this time of the year 3 years ago.

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“It was with the iron or stamp I see now. I did not see the stamp made. It was round iron. I know that the foal went astray the same year it was stamped.” [C]48 Has not seen the horse since it was stamped. It is the same horse now in dispute. Joseph Whiteway had told him that he had sold the horse to Defendt. “I do not know if the horse was branded the 2nd time. All which is truth, &c., &c.” Joseph Monkman, being duly sworn, deponed that in the month of June, 1861 “I saw the colt after it was stamped.” Joseph Whiteway told him, Deponent, that his brother William had given him the colt. “I have seen the same animal lately in the possession of the Defendt. in this case, and it answers the description of the one stamped. The horse shown on the 17th I think is the same I saw in 1861, but will not swear that it is, not being sure. All which is truth, &c., &c.” Donald Gunn, having been duly sworn, deponed that the first time Deponent saw this horse is about a year past, at Richard Pritchard’s. There was a mark on the right thigh. Richd. Pritchard said [it] was either the letter M or a bad W. J. McKay said it was the letter M turned upside down. The horse was a stallion, the left hind foot white, no white on the forehead or front. “I was present when the brand was shaved. There were 5 of us present, and all the marks of this iron showed – only the last stroke of the W did not appear. It was only W this way [last stroke being missing from letter]. The horse was shaved at the request of Josh. Whiteway. It is the same horse that was taken to R. Lagomonier’s, and the same I saw at R. Pritchard’s. All which is truth, &c., &c.” Richard Pritchard, Christopher McIntosh, Robert Gunn, Joseph Norquay, Thomas Monkman, all being duly sworn, deponed and corroborated the preceding witness as to the stamp and shaving at the time stated by the preceding witness. Verdict for Plaintiff: Costs of Suit £3.10.00 [C]49

General Quarterly Court, 357 18 day of August, 1864 358 In the suits of the following:

Henry McKenny versus Hiram Jarquish [Case 259] For a Debt £6.16.00 [&] Costs

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The case being called and Defendant not answering, the [Plaintiff being] sworn to his debt and Constable to the delivery of the Summons, the case went by Default. Debt & Costs: £6.16.00359

Pierce Barron versus John Forbes [Case 260] Debt £9.07.06 It was decided that Plaintiff shall get an ox from Defendant, and therefore Defendant is quit of all charges and expenses in this suit. Commentary This was another dispute about an elder care agreement, which Recorder Black appears to have mediated effectively. The Nor’-Wester account was as follows: “Action to recover from Defendant 125 days’ board at 1s. 6d. per diem. Defendant gave himself up to Plaintiff to keep him for life in consideration of leaving him his property. The result of such an agreement, as might be expected, was that the parties quarrelled. Defendant left without paying his board, it was alleged, and the present suit was brought to recover the amount of his ‘keep’ for 125 days. Acting on the advice of the Judge, the parties settled the matter, the Plaintiff accepting an ox in payment of his demands.”360

Norman Kitson versus Louis l’Tondre [Case 261] Debt £59.17.08 – A Promissory Note Defendt. not appearing, the Constable swore to the delivery of summons. Case went by Default. Debt: Costs:

£59.17.08 11 £60.08.08

Norman Kitson vs. Andrew l’Tondre [Case 262] Debt £30.0.00 – A Promissory Note Defendant not appearing, the Constable swore to the delivery of Summons. The Case went by Default.

General Quarterly Court of Assiniboia Records, 1861–65

Debt: Costs:

451

£30.00.00 11 £30.11.00 [C]50

Thomas Logan versus William McDonald [Case 263] Assault and Battery – Damages laid at £12.00.00 John Logan, being duly sworn, deponed that he was at a short distance from where his father was sitting on a box out of doors. “I did not hear any words between them, but saw Defendt. push my father down, and held him down. And I and my brothers took him off from my father. I saw Defendt., and met him. He passed me and went towards Mr. Fonseca’s, where my father was sitting. [I] saw him pull up 2 or 3 pair of pickets. Defendt., he pushed Plaintf. so hard against a box that he was obliged to get on the box. And then he threw him, or pushed him, down. Defendt. pushed with both hands. My father went home. I swear that Defendt. gripped my father by the throat. I heard my father say he was hurt by the usage he had received. [I] did not see Defendt. strike or kick my father. All which is truth, &c., &c.” Thomas Logan Junior, who being duly sworn, deponed that he was making fencing, and had 3 or 4 pair of pickets up, “when Defendt. came to me and said: ‘You are not on the line,’ and pulled up the pickets. He went off to my father, and seized him by the throat. My father told him not to meddle with the men who were putting up the fence. My father then went to put up the fence, and we followed him. And [we] saw Defendt. walk very quick, and pushed down my father on his face. He pushed him down rashly, and held him by the neck. We took off Defendt., who then took off his shirt and wanted to fight with him. There are two or three times that the Defendt. has made these disturbances. I heard Defendt. say he did not care what sum he had to pay, as his brother Revd. R. McDonald would pay it for him. I also heard Defendt. say he would rupture him, and threatened to shoot him. He wished to strike my father when he had him [C]51 down, but was prevented.” Verdict for Plaintiff with costs. Damages £6.00.00 – 10 days [to pay]. Costs paid in court.

Angus McKay versus Baptiste Adam [Case 264] Debt £11.13.6

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This case was Deferred till the November Court on account that361 the Constable (Js. Corrigal) was not present who had been entrusted with the Summons.362 [C]52

General Quarterly Court, held on the 17 th day of November, 1864 The Queen versus Thomas Flett [Case 265] [Shooting Mare] Bill of Information having been read, the Defendant pleaded Not Guilty. A Petit Jury was empanelled, and John Muir, who being duly sworn, deponed that: “2 dogs had been shot by my son because they were continually breaking into my store and destroying a quantity of my property. Some short time after, George Cox told my daughters that Defendant had fired a gun during the night of the 13th. I suspected the Defendant on account of my son’s having shot his dogs. I never suspected the Defendant would have committed a crime like this. The night my mare was shot was clear and moonlight. All which is truth, &c., &c.” Mrs. Nancy Cox, being duly sworn, deponed that Mrs. Flett told her on the evening the mare was shot that her son (Defendant) was going to shoot Muir’s dogs. “All which is truth, &c., &c.” John Smith, who being duly sworn, deponed that he saw the mare of John Muir which had been shot. He went into Cox’s house and saw Mrs. Flett, Defendt’s mother, there. “She asked me if I suspected anyone of having done the deed. I told her that her son, Defendt., was suspected. She replied: ‘I wish he was found out, for he has given me great trouble, driving me frequently from home.’ All which is truth, &c., &c.” George Cox, who being duly sworn, deponed that: “The night the mare was shot – on the next morning – I enquired of Muir’s daughters if Defendant had been there to shoot their dogs, and I told them what my mother said. All which is truth, &c., &c.” John Clarke, who being duly sworn, deponed: [C]53 “I know nothing about shooting Muir’s mare. I never told him (G. Cox) that there was a gun loaded with shot, or that when I left my uncle the Defendt. was in the house. All which is truth, &c., &c.”

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Edward Taylor [was] sworn, and deponed that he knew nothing about this case. “But I heard John Clarke repeat John Cox’s statement. All which is truth, &c., &c.” Bakie Sinclair, being duly sworn, deponed that he had heard the report of a shot on the night Muir’s mare was shot. But whether that shot killed the mare or not [he] cannot swear. “All which is truth, &c., &c.” Thomas McCorrister, who being duly sworn, deponed that he met Muir’s sons coming up, and “I asked John Clarke, who was carrying a gun, if that was the gun that shot Muir’s mare. He said: ‘Yes, but not the man.’ All which is truth, &c., &c.” Miss Muir, who being duly sworn, deponed that she “heard the report of a gun on the night my father’s mare was shot. G. Cox came next morning, and asked me if the Defendant had been there that night. All which is truth, &c.” John Muir Junr. [was] sworn, and corroborated Thomas McCorrister’s evidence. “All which is truth, &c., &c.” Defence: John Flett Senior, who being duly sworn, deponed that: “On the night of the 13th of September my son, Defendt., went to bed about 8 or 9 o’clock, and as I sleep in the same room and was suffering from toothache, he could not have gone out without my knowledge. He did not go out all night. All which is truth, &c., &c.” George Flett, sworn: “I went to Defendt’s house on the 13th September, and found my grandfather and Defendt. both in bed. And I did not leave them till near 12 o’clock. And during the time I was there Defendt. did not leave the house. All which is truth, &c., &c.” Verdict: Not Guilty [C]54

Thomas Bird versus François Morrissette [Case 266a] For Damages £7.00.00 Constable Clouston swore to the delivery of Summons.

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Judgement363 for £7.00.00 Costs of Suit 0.12.00 £7.12.00

Henry McKenny versus Duncan Nolin [Case 267] Debt £15.00.00 Defendt. acknowledged the Debt. Decision: To pay in 10 days the sum of: Costs of suit:

£15.00.00 11 £15.11.00

Duncan Nolin versus Henry McKenny [Case 268] Debt: £31.00.00 Henry McKenny, who being duly sworn, deponed that the arrangement was made that he, Plaintiff, should pay him, Defendt., the £15 before giving up the stoves. “All which is truth, &c., &c.” François St. Luc, being duly sworn, deponed that the stoves are more broke now than they were when delivered to Defendt. There is one piece that was whole is now broke. Does not know if the broken piece is in the possession of the Defendant. “All which is truth, &c., &c.” Verdict for Defendant, and he is to deliver to Plaintiff 2 stoves as given to Defendt. [C]55

General Quarterly Court, 364 held on the 16 th day of February, 1865 Thomas Bird versus François Morrissette [Case 266b] 365 For an Ox valued £7 (This case went by Default last Court)366 Pierre Laverdure [was] sworn, and deponed that all he could say about the meat “is that I eat a piece, and it was good and untainted. [I] gave some

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dried meat for a piece of it. The ox was worth £8 if killed properly. The next day after the ox was dead [I] did not see the meat – saw blood in the carts.” Does not know whose carts they were. “The day Defendant took the meat, he encamped with Deponent, and this was about 9 o’clock at night. And by the sound of his voice Vivier367 was drunk – the next day he was lying in the cart drunk. [I] did not meet Plaintiff, but knew that he had passed. It was night – about 9 o’clock. All which is truth, as I shall answer to God.” Baptiste LaRoque, being duly sworn, deponed that he met the ox taking a cart down when Plaintf. was coming from the plains. “Defendt. came to Urbain’s place, where we were encamped, about 9 or 10 o’clock at night. Morrissette went off, and we stopped at Belcourt’s place. Defendt. told me that he had found the ox, and had skinned it and cut him up, and carried it off. I eat some of the meat with Fallerdeau Ducharme. Defendt. told me it was Plaintf’s ox. All which is truth, &c., &c.” John Bird, being duly sworn, deponed that he and Plaintiff came down [from the plains] with the ox, who was very fat. “And about Bremnar’s place we loosened him, as he was very tired. Did not think he had anything serious the matter with him – least of all that he would die. It was about 4 or 5 o’clock in the afternoon when we left him. About 1½ miles on this side of the ox we met Vivier, very drunk. I took [C]56 the ox out of the cart [harness], my brother assisting me. He [the ox] was knocked up, and we left him there.368 I think the ox would have reached home if not prevented. All which is truth, &c., &c.” Sophia Comptois, who being duly sworn, deponed that she was present when Defendt. skinned the ox. “I saw the ox before he was skinned. The meat was warm. Did not know the ox. It was dark when it was skinned. When [it was] found they thought it belonged to McDermot. I had been to the French Chapel. All which is truth, &c., &c.” Defence: Joseph Ducharme, being duly sworn, deponed that he remembers making the affidavit. “On my way to the plains [I] met Plaintiff with 2 carts and one ox. When I saw the ox he was in a disgusting state. It was about 5 o’clock. I cannot say how he died. All which is truth, &c., &c.” François Ducharme, who being duly sworn, deponed that: “I met Plaintiff with 2 carts and one ox. Saw the ox, which was dead and swollen and stiff. I know the ox, and he was worth £10. All which is truth, &c., &c”

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William Morrissette, who being duly sworn, deponed that he was in company with his father when they found the ox. “A good while after dark Joseph Vivier skinned the ox. The meat was all thrown away. My father took none while I was there. All which is truth, &, &c.” Verdict: Last Court costs: This do. do.:

£3.00.00 for Plaintiff 13.08 1.10.00 £5.03.08 [C]57

Henry McKenny versus Alexander Fisher & Bapte. Boyer [Case 269] Debt £30.05.00 Sterling Judgement recorded369 for the sum of: Costs:

£30.05.00 17.00 £31.02.00 Payable during the month of May Court.

N. W. Kitson versus Josh. Landrier [Case 270] [Debt: £8.08.02] Judgement recorded for the sum of: costs:

£8.08.02 13.10 £9.02.00

Payable 1st June, 1865

N. W. Kitson versus Josh. Primeau [Case 271] [Debt: £6.19.08] Judgement recorded for the sum of: Costs:

£6.19.08 13.10 £7.13.06

Payable 1 June, 1865

N. W. Kitson versus Archibd. Pritchard [Case 272] [Debt: £11.14.07]

General Quarterly Court of Assiniboia Records, 1861–65

Judgement recorded for the sum of: Costs:

457

£11.14.07 16.04 £12.10.11

Payable 1 June, 1865

William Thomas versus A. G. B. Bannatyne [Case 273] 370 For the value of a Horse estimated at £12.00.00 Autumn 1863 Albert Patterson, who being duly sworn, deponed that he was at the time in the service of Defendt. “I got a horse from Plaintf., who had hired a horse to Defendt. for a trip to the US – a brown horse. The horse was sick, and the Plaintf. said he would give me one as good as the brown horse. I never rode the horse, but once to water.371 The weight in the carts outgoing might be about 200 lbs. [of] provisions. The first horse Plaintiff wished me to take I objected to on account of its being sick, and [after] about 1 day’s march – on this side [of] Red Lake River – we left him at Quarant Quate Bois. It was at my house that Pltf. [C]58 told me his horse was good enough to go the trip. The horse went with the oxen till I left him. Defendt. promised him, the Plaintiff, 3£ for the hire of his horse. Plaintiff told me the horse he would send was a good horse, but he sent the horse [and] did not bring it himself. The bargain was made at Defendt’s store. Robert Spence was present at the time. All which is truth, &c., &c.” Robert Spence, who being duly sworn,372 deponed that he was present at the bargain at Defendt’s shop. The Defendt. promised to pay to Plaintf. 3£ for the hire of his brown horse. “All which is truth, &c., &c.” Donald Matheson, who being duly sworn, deponed that he was in the same party as Defendt. Remembers the blond horse. “I saw Patterson riding the horse only once, to water. I never thought the horse fit for the trip. All which is truth, &c., &c.” Alexander Logan and W. G. Fonseca, who being both duly sworn, deponed that they were in the company of Defendt’s carts, and saw no ill usage to the horse of any kind whatever. “All which is truth, &c., &c.” Verdict for Defendant, Costs 6/ Commentary Recorder Black commented at one point during this case on what he considered an undesirable and too common practice of litigants in the General Court: “It has often

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occurred to me that parties subject themselves to a great deal of unnecessary expense in bringing a number of witnesses to Court, thinking that in some way or other their testimony is to be put in the scales and weighed, like goods or pemmican. This is a general failing, and the expenses of the suit are needlessly increased by this habit of calling a number of witnesses; whereas the testimony of two reliable persons would be sufficient on any one point.”373

Second day of this sessions, held on the 17 th day of February, 1865 William Slater versus James Taylor [Case 274] Damages laid at £8 for having, on the night of the 26th of October last, Killed an Ox of Plaintiff’s Defendant pleaded Not Guilty. George Taylor, who being duly sworn, deponed that on the evening of the 26th of October: “It was that evening [C]59 I fired at James Wishart’s ox, who was continually in my father’s [hay] stack yard. The shots I fired were only powder and wad – about 2 fingers’ load. James Brown blamed me at once for firing at the ox. I told D. Wilson that I had fired at James Wishart’s ox. There was near about half an hour between the shots. And the ox was in the yard each time I fired. Plaintiff’s ox was a dark red or brown colour, and Wishart’s ox was black. I don’t remember my father to have called out ‘What are you firing at boys?’ I do not know if Plaintiff’s ox and Wishart’s ox kept together. When I fired the ox was close. I fired 2 shots behind, and one before – in the head. No other animal was in the yard. Wishart’s ox has short horns, and Plaintiff’s [has] long horns. There was but little difference of size between the two oxen. I saw D. Wilson skinning the Plaintiff’s ox. All which is truth.” James Wishart, who being duly sworn, deponed that he remembered the 26th October. “In the evening, as I was coming home, I heard a shot fired, and saw two flashes. My ox is black, Plaintiff’s brown. I saw three animals near Defendt’s yard. I am positive that my ox bore a mark where he had been fired at. [I saw it] when I was skinning it, about a week or two after when I killed it. All which is truth, &c., &c.” Daniel Wilson [was] sworn, and deponed that he remembered the 26th of October, and that he heard the report of a gun while he was in his house and 2 [while] outside. “I skinned the Plaintiff’s ox, and [saw] two wounds from shot: one wound in the thigh and one behind. The night was very

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dark; I could not distinguish between colours of oxen. In my opinion a gun fired so close would be sufficient to kill. Most of the people about there thought that he had been killed from these firings. All which is truth, as I shall answer to God.” Thomas Sutherland, who being duly sworn, deponed that he frequently visits G. Taylor, “and he on one occasion [C]60374 told me he drew out his gun before firing a rabbit load, and [in] the second load he said he had put in a leather wad. All which is truth, &c., &c.” Verdict for Defendant

Estate of Thos. Thomas, Decd. Versus William Hallett [Case 275] Debt £4.19.11 Judgement recorded for Plaintiff for the sum of: £4.19.11 costs: 02.06 £5.02.05 Grace to the month of July or August

Oliver Paul versus Duncan Nolin [Case 276] Debt £15.10.00 Judgement recorded for Plaintiff for the sum of: £15.10.00 Costs: 13.06 £16.03.06

James Bird versus Robert Tait [Case 277] Debt £46.18.00 Donald Murray, who being duly sworn, deponed that he remembered having an order for a reaper, but he did not send it or give any. “I acted under the directions of Mr. James. I sold the reaper. All which is truth, &c., &c.” James McKay, who being duly sworn, deponed that he heard of Defendant’s having sold a mare to Plaintiff. The mare was sold for £5.00.00. “I saw Plaintiff with a gun he had bought for £4 or £5. All which is truth, &c., &c.” Verdict for Defendant.

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[C]61

General Quarterly Court, held on the 16 th day of May, 1865 375 Duncan and Elizabeth McDonald, Alexr. and Ann McDonald versus The Venble. Archdeacon Hunter [Case 278] Debt £100.00.00 [&] Damages £10.00.00 John Tait, who being duly sworn, deponed that he was called to settle [a law suit] at Lower Fort Garry. “The next time, at my own suggestion during the Corbett trial, when the tale which ...” (The Witness here began to state matters irrelevant to the case, and was stopped). ¶ “You (addressing Mr. Black) are aware how I settled. When I returned, I was miserable. Mr. Ross advised me to open up the case again. I went to Mr. Hunter’s, and found Mr. & Mrs. Hunter. They told me that the money would be given to my daughters. I then – on my return home – wrote a letter to them expressing my gratitude to them. This letter was read in church by Mr. Hunter. William Slater told me that I was afraid, or I might have proved my statement. But he went and told Mr. Hunter quite different. I met Mr. Hunter on the river, and told him I could not settle it now, and he said: ‘Call at Mrs. Bird’s house.’ I did so, and the promissory notes were now due. Mr. Ross said £200 was asked, and an apology. And then £150 was asked. Then I was called to the Bishop’s. Mr. Hunter did not come. Mr. Ross instructed the girls what to say. Mr. Hunter told the Bishop that the money was for the second case. I disputed my reasons for not paying the bill. All which is truth, &c., &c.” John Tait Junr., who being duly sworn, deponed that he was present when: “Mr. Ross came to my father’s to get a draft for the two promissory notes. I never heard Mr. Hunter or Mr. Bird say anything about the drafts. All which is truth, &c., &c.” Magnus Brown, who being duly sworn, deponed that he had been summoned on the second case. “And Mr. Ross called on me and told me I was not wanted. All which is truth, &c., &c.” [C]62 John Setter, who being duly sworn, deponed that he was in St. Andrew’s Church when Mr. Hunter read Tait’s letter [to the congregation], and heard him say that the £100 was to be given to Tait’s two daughters. “All which is truth, &c., &c.”

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Andrew Spence, who being duly sworn, deponed that he was in St. Andrew’s Church, and heard Mr. Hunter say that the £100 would be given to Tait’s 2 daughters. Will not swear he said he would invest it. “All which is truth, &c., &c.” Henry McKenny, being duly sworn, deponed that he went to the Archdeacon’s house at the request of Mr. Tait to ask for the money, and he said the money was for the second case, the money was not paid for the first suit. All which is truth, &c., &c.” Verdict for the Defendant. Commentary This unusual case arose as an indirect consequence of R. v. Corbett376 in February 1863. John Tait, one of Corbett’s loyal supporters, had spread rumours that Reverend James Hunter, whom Tait and others considered to have unfairly turned against Corbett, had himself been guilty of improper conduct with Maria Thomas. On the advice of Bishop Anderson, Hunter seems to have sued Tait for slander, and official or semi-official pressure of some kind was put on Tait to settle out of court. He was, he said, “called to settle at Lower Fort Garry ... You (Judge Black) are aware how I settled.” The settlement agreed upon required an apology to be given and money to be paid by Tait. But after getting home from the settlement discussions, Tait was “miserable” about the agreed terms; and he subsequently approached Hunter and his wife to modify them. This time it was agreed that the money paid to the archdeacon would not be retained by him, but would instead be divided by him between Tait’s two daughters. Pleased by this modified arrangement, Tait wrote and delivered the required letter of apology, and arranged, through the Bird family, for promissory notes to be given to Hunter. The archdeacon duly read the apology from the pulpit, adding his own confirmation that when the money was paid it would be passed on to Tait’s daughters. Tait then failed for some reason to make the agreed payment. The promissory notes were not honoured, and Tait informed Reverend Hunter that “I would not settle it now.” It must have been at that point that Hunter launched the “second case.” While we know nothing about the new proceeding, it was probably a renewal of the first one. At any rate, Tait was persuaded to pay £100 to Hunter, and the “second case” was dropped. The Tait family expected that the promised transfer to the daughters remained in effect; and when the money was never given to them, the daughters, along with their respective husbands, sued Hunter, presumably for breach of an alleged equitable obligation to them. Hunter’s defence – that the obligation applied only to the first, rejected, settlement arrangement, not the second – was accepted by the court.377 Although the archdeacon later claimed that he had emerged from all this without “the slightest stain ... on my character,” in fact he sustained a serious career injury.

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As the second most senior Anglican cleric in Rupert’s Land, with many significant successes to his credit, he would reasonably have expected, before the Corbett case and its fallout, to succeed Anderson as bishop when the latter retired. That never happened, and there seems little doubt that this nasty little court case was a contributing factor.378

Henry McKenny versus Michael Wagnor [Case 279] Debt £7.00.00 Judgement for Costs:

£7.00.00 13.06 £7.13.06

John Schultz versus Henry McKenny [Case 280a] 379 Debt: £300.00.00 It being necessary for the accounts of McKenny and Co. to be in court for examination, seeing that Defendant denied the debt, the Plaintiff had all the books in his possession belonging to the firm of McKenny & Co. now before the Court; and stated that if all the books and papers were put into the Court he would have prove [sic: proof? proved?] that in winding up the partnership of the late firm of McKenny & Coy. it was due to him the sum sought. ¶ It was ordered by the Court that the four books now in court, respectively numbered 1, 2, 3, & 4, be left in the Court for the inspection of Defendant until 10 o’clock tomorrow the 17th May; at which time, he also [C]63 – the Defendant – should bring into court all account books and papers connected with the late firm of McKenny & Co. now in his possession. By order of the Court: W. R. Smith, Clerk of Court.

John Taylor versus John Isbister [Case 281] For the sum of £12.00.00 [Debt] Defendant stated on oath that he had paid the sum sought about the 16th or 20th Septr. to Mr. Hodges. “I paid the said Mr. Hodges $74.50 and I got a receipt for the same. But this receipt I put in my pocket at St. Paul’s and [it] got spoiled.” (The Defendant here shewed the receipt in a very dilapi-

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dated state.) He then, however, promised to the Court that if the firm of Hodges & Co. should still deny the receipt as a genuine discharge he would pay the Plaintiff. ¶ The Clerk of the Court was ordered to address a letter to Hodges & Co., and to enclose the receipt to them, stating that he, John Isbister, had this day been brought before this Court in a civil suit by John Taylor for the sum of $74.50 due by the said John Taylor to their firm, and which the enclosed receipt professed to be a legal discharge.

John Schultz versus Antoine Goin [Case 282] Debt: £58.04.00 Judgement by Default: Debt: Costs: Mileage:

£58.04.00 13.06 .08 £58.18.02

Maxime Dauphinais versus Narcise Barnabé [Case 283] £15.00.00: Loss by Breach of Contract [Desertion from Employment] Madame Jollifoux, who being duly sworn, deponed that she was present when Defendt. engaged to Plaintf. to go to St. Paul’s for £5.00.00. “All which is truth, &c., &c.” [C]64 Alexé Dauphinais, who being duly sworn, deponed that he was with Defendant. “He left us at Lac Clair. In the morning when we rose he was away. I therefore had 6 carts to attend to. A great damage was sustained. He was well treated by his master. He never told of his wishing to leave. All which is truth, &c., &c.” Judgement by Default: Damages: Costs:

£09.030.6 01.16.06 £11.00.00

Second day’s session: 17 th May, 1865 Wm. Drever versus Françs. Roussin [Case 284] Debt £ [blank]

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Case Deferd. Costs 6/6 at this session.

[blank] Sheal versus Henrie Bousquet [Case 285] Debt: £6.00.00 Settled: Defendt. to pay £5.10.00

John Bunn versus William Slater [Case 286] Damages for Horsetaking: £25.00.00 John Bunn stated that he had sent out his horse for the winter in charge of John Vincent Junr. The horse had remained for some time with Vincent’s horses, but he had disappeared, and, as he heard, was ridden away by Defendt. and very badly used and ill treated – so much so that the horse sickened and died. John Vincent Junr., who being duly sworn, deponed that he took Plaintiff’s horse out for the winter. “I put the horse out with my own. I [later] missed Plaintf’s horse. I had to seek him, and found him sick. I enquired who had rid[den] the horse from his grazing, and found that Defendt. had been seen riding him. [I] had to keep the horse in, [and] I was obliged to send the horse back to the Pltf. to get proper attendance [C]65 for him. All which is truth, &c., &c.” George Bird, who being duly sworn, deponed that he saw Plaintiff’s horse when he went out with John Vincent, and he was well and fat; but: “When I got him to bring back he was sick, and appeared to have been badly used. The cuts of a whip on his rump were visible. I think the horse when he went out was worth £20.00.00.” Judgement for Plaintiff: Costs: Mileage: 10 days’ grace to pay:

£12.10.00 1.05.06 .10 £13.16.04

William Drever versus François Mercredi [Case 287] Debt: £5.13.10 Judgement for Plaintiff for £5.13.10 Costs: 13.06 £6.07.04

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William Drever versus Mrs. Edwd. Corrigal [Case 288] [blank] Case Deferd. Costs at this Court: 13/6

James Spence versus John Moyes [Case 289] Damages and Trespass James Mulligan, who being duly sworn, deponed that, with only one exception, all on the Point380 were agreeable that a new survey of the lines should be run by a surveyor. [He] saw Defendt. clearing a piece of land of the new survey. “I was present when Defendt. consented. [I] did not hear anyone say on conditions of any kind as far as I can recollect. The Defendt. consented at first, and then he wished to deny having consented. All which is truth.”381 Roger Goulet, who being duly sworn, deponed that he recollects being called to survey this land in dispute. “I was called by the neighbourhood to do so. I got the consent of all parties. Charley Land was one who came to ask me – his father objected – & Ramsey, at the last lot, I left off. All which is truth as I shall answer &c., &c.” Robert Ramsey, who being duly sworn, deponed that he did not [C]66 consent to have his land re-admeasured by any other surveyor. The Company had, he supposed, confidence in Mr. Smith’s admeasurement, and the land had been granted to the whole of the Royal Pensioners by that the original survey of Mr. Smith. “All which is truth, &c. &c.” James Armstrong, who being duly sworn, deponed that he “objected to the survey of my son’s land, he not being present. All which is truth, &c., &c.” Verdict for Plaintiff: Damages: £0.05.00 Trespass: 1.00.00 Costs: 1.19.06 £3.04.06

Henry Hallet 382 versus David Taylor [Case 290] For Seduction – Damages laid at £50.00.00 Jane Hallett, who being duly sworn, deponed that: “It is now near 6 years since he promised faithfully to marry me. I swear positively that I am

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now with child by David Taylor the Defendant. I have never had any connection with any other person. He always promised to marry me. All which is truth, &c.” David Spence, who being duly sworn, deponed that: “Two years ago I went to H. Hallet’s, and while there I heard Wm. Taylor put a question to Defendt., and asked him if he intended to marry Jane. He said he did, and Taylor said: ‘But when?’ He replied he had a time. I do not think David very rich in money, but [he] has plenty cattle and horses. All which is truth, &c., &c.” Jane Hallett again deponed that she had the offer of marriage [from another man]. “And I replied that I could not marry unless David gave me his consent. When I asked him he said if I offered to marry [someone else] he would ruin my character, and break the marriage if I attempted it.” Decision: Damages: Costs: 14 days grace to pay:

£50.00.00 1.15.06 £51.15.06

[C]67

Third day of sessions: 18 th May, 1865 John Schultz versus Henry McKenny [Case 280b] 383 Debt of £300.00.00 £200 claimed as from McKenny & Coy. that ought to have been paid; £100, or thereabouts, between John Schultz & H. McKenny [personally]. The above parties both acknowledged their willingness to accept [the appointment] of John Black Esqre. and François Bruneau as arbitrators in the case at issue between John Schultz, Plaintiff, and Henry McKenny, Defendant. Agreed and accepted by both parties. W. R. Smith, Clerk of the Court, 18th May, 1865, Court House

General Quarterly Court, held on the 17 th day of August, 1865 384 Narcise Marion versus Etien La Ronde [Case 291] A Bill385 of $434.44 or Sterlg. £61.18.00386

General Quarterly Court of Assiniboia Records, 1861–65

467

Judgement for Plaintiff: Amt. of Bill: £61.18.00 “ “ Costs: 17.06 £62.15.06

Narcise Marion versus Etien d’La Ronde [Case 292] For £9.00.00 [Injury to Horse] Joseph Genton, sworn: “I was at Plaintiff’s house, and he told me his animals had arrived, and that he had a horse he was afraid would die. I went with Plaintiff’s son [and] saw the horse tied. His legs were cut – and the mouth also – with a line.” [He] does not know who tied the horse to the fence. “[I] saw the horse before it went off. It was then a good horse and in order. I would not now risk sixpence on him, as he appeared to be dying. All which is truth, &c., &c.” [C]68 Narcise Morin, [being] sworn, deponed that when the man brought back the animals and horse he left them harnessed. Both the mouth and legs of the horse were cut. The legs were cut by a hempen line. “I heard that the man had called out. I went to him, and he said he could not wait. The legs were badly cut by the line. All which is truth, &c., &c.” Augustin Robedeau [was] sworn, and deponed that he saw that the horse’s mouth was badly cut, and as hard as a rock. “I gave it bran & barley. The legs were cut to the bone. All which is truth, &c., &c.” Julia Carrier [was] sworn, and deponed that she saw the horse when he came back, and saw it for 2 or 3 weeks after. The mouth got well before the legs. The horse was poor. The last time I saw him he was at Rivière la Seine – he was then healed. All which is truth &c., &c.” Louis Plouff [was] sworn, and deponed that he saw 2 oxen and a horse tied. “[I] saw the mouth swelled, and the leg cut and tied with a piece of leather (the blinker). The horse could not eat from the ground – I put some hay in his mouth. [I] saw a man in the Fort – he was warming himself. I asked why he left the animals there. He said he was too cold. All which is truth, &c., &c.” Verdict for Plaintiff: Damages: Costs:

£1.10.00 1.17.00 £3.07.00

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Albert Sargent versus Board of Works or W. R. Smith, Clerk of the Council [Case 293] For Loss sustained at the Public Ferry Mr. Smith stated to the Court that he was unacquainted with any Board of Works;387 and if any did exist, he submitted to the Court that the chairman of the said board was the proper person, and not him. Nonsuit. Commentary The Red River Settlement’s ferry facilities had been in a disgraceful state for quite some time. From whom, if a user suffered consequential injury and loss, could redress be obtained? The Council of Assiniboia seems to have been in charge of the service, but to have franchised private operators to run it. A previous franchisee had been successfully sued over a ferry accident,388 although it is not known whether he ever paid the damages. When the current lawsuit was launched, the operation was in the process of being transferred to a new franchisee. So who was a new plaintiff to sue? Certainly, Council Clerk William Smith was not an appropriate defendant, and even if there had been a Board of Works, it would not have been an entity legally susceptible of being sued. But were the Assiniboia governor and/or council not answerable to the law for their wrongful acts or omissions? Or did they enjoy a protected status akin to Crown immunity? The question seems never to have been answered. [C]69

Roger Goulet versus Albert Sargent [Case 294] Import Duty due to Govr. & Council of Assiniboia: £46.09.04 Judgement for Plaintiff: Costs: 10 days to pay:

£46.09.04 03.06 £46.12.10

Albert Sargent versus Honble. Huds’s Bay Coy. [Case 295] For a Debt due by one of the Compy’s Servants: Debt £54.18.02½389 Judgement for Plaintiff for £5.00.00 as an instalment on the above debt.

General Quarterly Court of Assiniboia Records, 1861–65

469

General Quarterly Court, held on the 16 th day of November, 1865 390 The Queen versus Joseph Armstrong and Owen Bourk [Case 296] 391 Petty Larceny [sic: Arson] The Bill of Information392 having been read, both Prisoners pleaded Not Guilty James Mulligan, who being duly sworn, deponed that he was in bed on the 26th of September. “I got up, and went out and saw my stacks on fire on the north side – two large and one small one. They contained about 100 bushels. The wind was south. My whole attention was to save my house. I called Rodney [sic: Rodway?], and he assisted to save my house. I saw a man lying on the ground – it was the Prisoner Bourk. I said to him: ‘Bourk, you have fired my stacks.’ [C]70 He answered me like a drunken man: ‘Yes! And three more, and you may go to Hell!’ After this he came to the fire with me, and sit with us and talking about Sir John Moor.”393 ¶ “I also accuse Joseph Armstrong for aiding and abetting the other Prisoner. I had reason to suspect him on account that he had scattered my cordwood, and said he would do so again.394 He and Josh. Stanly were together. He abused me. My cart with a stove in it was pushed into the river, and although I did not see him do it, yet I suspect he had a hand in it. I had a light carriage which was broke, and I suspect him of doing any kind of mischief against me.” ¶ “Rodway’s house is about 6 or 7 chains below mine. Bourk was lying about 5 chains from the fire. Did not see any one light the stacks. I have had some few words with [missing word], but not quarrelling with anyone. I have had some few words with the Indians.395 The wood which Prisoner [Armstrong] scattered was on the road that was formerly a public one. I was not in the yard with the candle. I never saw any candle there.396 All which is truth, &c., &c.” Joseph Rodway, who being duly sworn, deponed that he remembered the night of 26th September. “My wife called my attention to a fire. Parks came into my house that evening from Pembina. At about 10 o’clock both the Prisoners came in, and I gave them cash a glass of liquor. They went away, but came back again with a small bottle of whiskey.397 They asked for, and my wife gave them, some matches – to Armstrong398 – and about 10

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minutes afterwards I saw a great light. I went out and said: ‘The stacks and house are alight.’ My son found Bourk in the potato drills. He appeared to be drunk. While getting over the fencing they might have got home quicker by going round.399 I saw them both inside Mulligan’s fencing. I told Mulligan that these men had got matches from my wife, and perhaps they had set fire to the stacks. All which is truth, &c., &c.” Mrs. Rodway, who being duly sworn, deponed that she remembered the 26th September. “I got some liquor, and came back again with the liquor. Then I gave a few – 2 or 3 – matches, and saw Armstrong going off. Did not hear anything about the men, [and] [C]71 did not see them after Armstrong left me. He got over the fence, and the last I saw them he, Armstrong, got over the fencing on Mulligan’s ground. All which is truth, &c., &c.” James Spence, who being duly sworn, deponed that he saw Mulligan’s stacks on fire. “And I think the fire was put by the hands of man. All which is truth, &c., &c.”400 Captain Donaldson, of the US Army, was about to be sworn when the [Defence] Attorney objected to his evidence being taken on account of his having been cashiered from the US Army on account of malpractices.401 Mrs. Mulligan, who being duly sworn, deponed that: “On the night of the 26th of Septr. I saw the stacks burning – cannot say what hour. I had used my cooking stove that evening, and before going to bed had put my hand into the stove, and there was no fire in it – about an hour or so after using it. All which is truth, &c., &c.” William Clouston, who being duly sworn, deponed that he heard Bourk say, when asked: “He said: ‘I did till [sic] 3 more,402 and go to Hell.’ I think the fire was set maliciously on the stack. All which is truth.” [Defence:]403 Duncan McDougal [was] sworn, and deponed that: “On one occasion I heard a great noise outside. I went out and heard an Indian say: ‘I will kill him,’ meaning Mulligan. All which is truth, &c.” Mrs. McDougal [was] sworn, and deponed that after Mulligan went into the Fort the Indians said they would kill him. “All which is truth.” James Armstrong [was] sworn, and deponed that: “About 9 o’clock Josh. Armstrong said to Bourk: ‘Let’s go over to see Parks.’ They both went.

General Quarterly Court of Assiniboia Records, 1861–65

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It was then ½ past 9 at night. What got them [sic] after I do not know. All which is truth, &c., &c.”404 Thomas Franklin, sworn, deponed that he did not think that a spark could have set the stacks on fire. He had been drinking, and Rodway, and his wife also had been drinking. “All which is truth.”405 Eliot Armstrong, sworn, deponed that: “The night of the fire my brother wanted me to get up to help him to put out the fire in the plains. It was in the direction of Mulligan’s house. All which is truth, &c.” [C]72 Narcise Morin, sworn, deponed that: “The night of this fire I saw about that place, as I was walking up, a light like a candle, & two or three persons walking about it. It was about 8 or 9 o’clock. All which is truth, &c.” Joseph Beaucas [was] sworn, and deponed that he was present when they laid hold of the Prisoner Bourk, and [he] appeared stupid and drunk. All which is truth, &c., &c.” Verdict: Not Guilty Commentary This decision may seem perverse in light of the Crown’s strongly persuasive evidence. It could be explained by the jury’s possible dislike of Mulligan – who was a cantankerous individual – or by its sympathy for the opposition of Armstrong and others to Mulligan’s storage of cordwood on what “they considered to be a public road.” The latter view, in particular, would be plausible. Mulligan himself believed that the arson was connected to a dispute over whether the roadway, upon which Armstrong had previously scattered cordwood that Mulligan had stacked, was on the latter’s property or was on public land. On 18 July the Council of Assiniboia had considered a “petition ... from James Armstrong and others” concerning an “alleged obstruction by James Mulligan and others of a certain road ... which they considered a public road.” The complaint had been tabled pending investigation, and was still in limbo when the haystacks were burned. On 4 January 1866 the council decided that the complaint was “well founded.”406 The best explanation of the verdict, however, is that Recorder John Black’s charge to the jury407 strongly favoured the defence. While assuring the jury that “he would offer no opinion upon the guilt or innocence of the Prisoners,” Black reiterated defence attorney Garratt’s points that the penalty for this offence was very severe, and that, “while there were undoubtedly circumstances in the case which raised against the Prisoners the strongest suspicion, yet there was in reality no direct proof to substantiate the charge.” This took him to a discussion of circumstantial

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evidence: “Although he did not mean to say that direct proof was indispensable for the just conviction of a man charged with a crime, yet when presumptive or circumstantial evidence was all that a Jury had before them they ought to be extremely careful in the consideration of it before adopting it as the groundwork of an adverse verdict.” “It was in the nature of the worst of crimes,” he acknowledged, “to be committed under circumstances that precluded the possibility of direct and positive proof; and if nothing short of that were ever to satisfy a Jury the greatest of criminals would frequently escape.” Nonetheless, [i]n this case ... there was not only an absence of direct proof; but, even strong as the circumstantial evidence was, it might not be deemed conclusive. The Prisoners were certainly proved to have been in a position that gave them every opportunity of firing the stacks, and to have been in possession ... of the means of doing it. But would it be safe to conclude that therefore they, and they alone, had done the deed?408 ... As to the ill will of Armstrong to Mulligan, ... would it be safe – would it be just – to infer that his malice was so great as to carry him up to the point of burning Mulligan’s property – a point of wickedness that implies an almost diabolical spirit? After also commenting favourably on Garratt’s contentions that Armstrong’s requesting his brother to assist in putting out the blaze showed his innocence,409 and that Bourk was too drunk to know what he was saying, the recorder concluded that, “[u]nder all the circumstances, perhaps the Jury might feel considerable doubt about the Prisoners’ guilt” and that, “if they had any reasonable doubt in their minds it was their duty to give the Prisoners the benefit of it.” A conviction in the face of such a charge would have been surprising.

Jesse Clark versus Ambroise Fisher [Case 297] Debt: £8.00.00 Judgement for Plaintiff: Costs 13.6 / £8.13.06 / 10 days

Jesse Clark 410 versus Bapte. Morin [Case 298] Debt £6.00.00 Judgement for Plaintiff: Costs 17.00 / £6.17.00 / 10 days

J. M. House versus Alexé Peltier [Case 299] Debt: £11.03.09

General Quarterly Court of Assiniboia Records, 1861–65

473

Judgement for Plaintiff: Costs 13.06 / £11.17.03

[In the Matter of the Guardianship of the Minor Heirs of Edwin Thomson Denig] [Case 300a] 411 Record: Be it known to all whom it may concern, that Ryer Olson [Ryder Larsen?] has this day requested Letters of Guardianship for the minor heirs of the late Edwin Thomson Denig. 16 November 1866 [sic: 1865] W. R. Smith, Clerk of the Court, District of Assiniboia.

5 General Quarterly Court of Assiniboia Records, 1866–69

Events moved swiftly during the final four years of Hudson’s Bay Company hegemony. Canadian Confederation blossomed, and the fate of Rupert’s Land was secretly settled in London. But the people of Red River demanded consultation before change; and, resisting premature Canadian incursions, the Métis formed an indigenous government to negotiate the territory’s entry into Confederation, and administer it until then. While all that was happening, life went on in the settlement. Natural calamities occurred, the population grew, railways came closer, approaching telegraphs improved contact with the outer world, and Assiniboia’s government became, like a dying penitent, yet a little more cooperative. When insurrection finally shut it down, the General Quarterly Court was the last governmental component of the HBC to close.1 [C]73

General Quarterly Court, held the 15 th day of February, 1866 2 John Schultz versus Henry McKenney [Case 280c] 3 For a Debt of £300, viz: £200 that ought to have been paid by McKenney & Coy., and £100 (or thereabouts) to the private acct. of Schultz & H. McKenney This case was deferred till next court in consequence of an affidavit put in, explaining that he, the Defendant, had been cited to the court of St. Paul’s Minnesota, U.S. The Court having accepted the necessity of his (the Defendant’s) plea, ordained that Henry McKenny, with the books and papers connected with this case, shall be produced at next Court. Case adjourned till next [sitting of the] Court.4

General Quarterly Court of Assiniboia Records, 1866–69

475

Charles Garratt versus John Schultz [Case 301] Damages: £7.09.04 [Dispute over Contract to make Bricks] Defendant denied the claim. John Schultz the Plaintiff [sic],5 being duly sworn, deponed: “I made a contract with the Plaintiff to make bricks, but I was not obliged to furnish the mud. I did not go to the creek to point out the place where to take the mud from. I did not ask Mr. Bannatyne at St. Paul’s for permission to take mud. I might have said I would prosecute for breach of contract. I told Mr. Hunt that you the Pltf., I believe, were going to get the mud from Mrs. Bannatyne. [I] did not tell Plaintiff that I had permission from Mrs. Bannatyne. The contract was that I should pay £2 for every 10 square feet after the wall of the house was made.” Nonsuit. Commentary The story here seems to be that Charles Garratt was hired by John Schultz to make bricks for a house the latter was constructing but that, because of difficulty obtaining suitable clay, he failed to produce the bricks in time to be of use to Schultz. When his claim for payment was defended, Garratt must have contended that because the clay was to have been provided by Schultz, the delay was Schultz’s fault. Garratt did not provide any proof of that contention, however, while Schultz denied it under oath. The plaintiff was accordingly “nonsuited.”6 The Nor’-Wester disclosed that this case had come to the court on appeal from a petty court where, too, Garratt seems to have lost. It also reported a courtroom altercation that occurred just after the conclusion of the appeal. Andrew McDermot, who was in court awaiting the trial of the next case on the docket – in which he was the defendant – suddenly poured the contents of a bottle, perhaps liquor, over Charles Garratt’s head,7 and then proceeded to berate Garratt verbally for having publicly accused McDermot of giving perjured evidence at the petty court hearing. He followed that up by “acquaint[ing] the Court with some eccentricities in the moral character of Mr. G. not immediately connected with the business at hand, but doubtless as unpleasant to the subject of them as they were amusing to the audience.” When the court intervened, “with as much gravity as they could command,” it was, interestingly, to question Garratt rather than to chastise McDermot; whereupon the latter “interrupted by emptying another bottle on the head of the unfortunate G.” Next, McDermot returned to verbal accusations relating to the petty court proceedings:

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“You gave Baptiste [presumably a witness in the lower court] six glasses of whiskey to make him sign the paper that you wanted,” says Mr. McD. “It is no such thing,” says Garratt, “Baptiste is here to speak for himself ... Baptiste, did I give you six glasses of whiskey[?]” “You did,” said the amiable cripple. This completely upset the gravity of everyone, and some time elapsed before order could be restored and the Judge could warn Mr. Garratt about the grave nature of such accusations.8

Adam McBeath versus Andrew McDermot [Case 302] Debt: £16.11.00 Angus McBeath, who being duly sworn, deponed that he got 17/6 [C]74 [for freighting] from Elk River pr. 100 lbs., and “I do not think 6d extra for loss and trouble. I got 17/6 in the summer 1864 pr. 100 lbs. All which is truth, &c, &c.” Plaintiff [Adam McBeath] put in three written certificates proving that 18/ pr. 100 lbs. had been paid by the parties signing them. Mr. Robert McBeath, JP,9 who being duly sworn, deponed that Defendt. did not say that he would not give more than 14/ pr. 100 lbs. He, Deponent, had said [to Defendant] that he was sure that his son would not charge him more than he charged others. Mrs. Ross never told him, Deponent, anything about the freight. Defendt. said nothing about the weight. “I am positive I said that my son would only charge him what he charged others, and he promised to furnish gold to my son on starting for the States. All which is truth, &c, &c.” Adam McBeath, Plaintiff, who being duly sworn, deponed that his father never said a word to him about the price. “All which is truth, &c. &c.” Henry Cook, who being duly sworn, deponed that: “From Elk River to here we gave 30/ per barrel of flour of 218 [lbs.] gro. wt. All which is truth, &c, &c.” A. G. B. Bannatyne,10 who being duly sworn, deponed that he had asked Defendt. for freight, and he said he had offered it to Plaintiff, but did not think he would take it, as he had only offered him 14/ pr. 100 lbs. “I believe the price is 2/ more. All which is truth, &c, &c.” Verdict for Plaintiff: Debt: £16.11.00 Costs: 1.18.00 10 days to pay: £18.09.00

General Quarterly Court of Assiniboia Records, 1866–69

477

Commentary This was a dispute about the going rate for freighting goods from Elk River to Red River. The plaintiff’s father, Magistrate Robert McBeath, seems to have arranged for his son to transport goods between those places for Andrew McDermot, telling the latter that the son would charge no more than he charged others. The plaintiff, having been told nothing about payment, assumed that it would be at the standard rate, which he reckoned to be either 17 shillings and 6 pence or 18 shillings per hundredweight. The defendant, backed up by his son-in-law, claimed that he never paid more than 14 shillings. The jury supported the plaintiff’s claim.

henry Joachim versus Louison & Brother Vandalle [Case 303] Damages: £3.00.00 [For Deficient Masonry] André Goudré, who being duly sworn, deponed that when he examined the stones: “The masonry on the outside all round [was satisfactory], but inside [it was] too low in the middle. My companion went to work at one end and I at the other. I found a hole or vault, and my companion [found] another of great length. After I had piled them [C]75 up [I] found them to be 4½ loads short. All which is truth, &c, &c.” Joseph Dufrêne, who being duly sworn, deponed that he was with the last witness, helping to pile the stones. Saw the holes – can’t say the holes were purposely made. “The masons said there was less two loads and a half. We built the toise11 too close. All which is truth, &c, &c.” Thomas Celestine, who being duly sworn, deponed that he was passing by, “when I saw the Defendts. cording the stones. I said to them: ‘You are making holes.’ When the Plaintiff broke up the pile for readmeasurement he called me to see the vault and holes the pile contained. All which is truth, &c, &c.” George Dahl, who being sworn, deponed that he saw the toise of stone with very large holes. Did not perceive that the masons were in liquor. The stones were fairly corded. “All which is truth.” Alexander Dahl, who being duly sworn, deponed that he had seen the Defendts. cording the stones, and told them jokingly to make holes. The holes appeared to have been made purposely, but cannot swear they were. The toise was short in height. “All which is truth, &c, &c.” Defence:

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Joseph Dufrêne [was] sworn, and deponed that Plaintf. came and measured the stones, and received them. About 2 months after they had been received, Goudrie and Riêll broke up the pile and repiled them. “All which is truth, &c, &c.” Jean Baptiste Charboneau, who being duly sworn, deponed that he never saw stones piled up as this toise was piled. “It was like mason work, all but the mortar. Riêll would shew a hole to get a dram. They were piled too close. All which is truth, &c, &c.” Verdict for Plaintiff: Damages: Costs: 10 days to pay: 6

£3 3

Costs [breakdown]: 12 Jurymen: £1.10.00 5 Summonses: 17.06 5 Witnesses: 12.06 £3.00.00 [C]76

Second Day of February Sessions, 16 th Feby., 1866 Nicholas Courtel[le] versus Louis Thebeault [Case 304] For £400.00.00 for the Nonfulfillment of Obligations towards Plaintiff Jean Magher, who being duly sworn, deponed that he was called to arbitrate between the Plaintf. & Defendt. with Mr. Maxia. Genton. “Neither of us or others were asked for a sworn testimony. The way the paper was drawn up by Mr. Bannatyne,12 we calculated all the obligations to the Defendt., and considered that £25 pr. annum for the Plaintiff was too much – or in place £400 down. There was 3 yrs. that Plaintf. had had to furnish himself. All which is truth, &c, &c.” Maximilian Genton, who being duly sworn, deponed that he went to Mr. Bannatyne with Messrs. Magher and the Plaintf. and Defendt. “Mr. Bannatyne drew up a paper of what our decisions might be. I was for giving Plaintiff £100, and Mr. Magher £400. So, as we could not agree, according to the paper a third was to be called in. Mr. McDermot was that person, and he agreed with Mr. Magher. This paper was sworn to in court by Mr. Bannatyne,13 who said he merely signed it as a witness. All which is truth, &c, &c.”

General Quarterly Court of Assiniboia Records, 1866–69

479

Alexander Porter, who being duly sworn, deponed, and corroborated the foregoing 2 witnesses. “I have seen Plaintiff working like an honest man. Deft’s. house was as good as need be, [and] the provisions the same as generally used in the place. All which is truth, &c, &c.” Baptiste Hupée, who having been duly sworn, deponed that he had seen the Plaintf. work well. Does not know how he was fed. “Plaintiff told me that he would not remain with Defendt. Cannot say whether he eat the same as Defendt. did. All which is truth, &c, &c.” François Sayes [was] sworn, and deponed that he was at the Defendt’s, and saw they did not agree together. “I never heard Defendt. [C]77 order the Plaintiff off. I have heard Plaintf. say he would not work. Plaintf.14 was cook at Defendt’s. One night two women came, and Defendt. ordered them to go and eat. Plaintf. had some of the vessels cleaned, and he put them by, and left those which had been used by others. All which is truth, &c, &c.” Defence: Joseph Flammond, sworn, deponed that he heard Plaintf. say he would not remain with Defendt. “He complained that the Defendt. was giving away his property. After the last court no-one, in his opinion, could agree with him. Every year the Defendt. had to engage new servants, as they would not put up with Plaintf. There is none can be more patient than Defendt. I have seen the stove in his house knocked down, & he said nothing. All which is truth, &c, &c.” Thomas Flammond, who being sworn, deponed that he engaged to Defendt., and never saw Pltf. working. “And he said he would not work, and [that] he would leave. He was fed from the same [missing word] as Defendt. himself had. Never heard Defendt. refuse him anything. He asked for soap and tobacco, and got it. I have seen Plaintf. working at Têlle d’Chene [sic: Isle des Chênes?]. Cannot say what distance the cattle were watered. All which is truth, &c, &.” Lucas Laferté, sworn, deponed that Defendt. came to him at Mr. McDermot’s, and “asked me if Plaintiff worked there. I said he did, but whether he gained anything I could not tell. There was two young lads there who refused to work with him, and now the Plaintf. does the work alone. All which is truth, &c, &c.” Verdict for Plaintiff for: £160.00.00 Costs: 2.08.06

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10 days to pay:

£162.08.06

Commentary This was the final chapter – so far as this court was concerned – of a very painful story. Nicholas Courtelle was an aging – perhaps confused, certainly cantankerous – man who had made an arrangement in the 1850s with the Sisters of Charity (Grey Nuns) to look after him for life in return for transferring his property to their convent. Unhappy with how that arrangement was working out, Courtelle sued the sisters in 1854 (case 122, [B]74); left their care, taking his property with him; and entered into a similar agreement with Louis Thébeault, the present defendant. Disputes with Thébeault led to litigation in 1859 (case 162, [B]130) and 1862 (case 230, [B]233), but Courtelle had remained in Thébeault’s care and employment, at least intermittently, until now. The relationship continued to be stormy, however, and an arbitration failed to find mutually acceptable terms upon which it could be severed. Now the court settled those terms – on a basis somewhat more generous to Courtelle than two of the arbitrators recommended but much less so than the third arbitrator would have awarded.

Amable Goudré versus Louis Thebeau [Case 305] Damages £9.09.00 [For Loss Sustained by Unsatisfactory Transport of Goods] Jacques St. Denis, sworn, deponed that: “I was not present when Defendt. engaged. I did not hear the conditions. I was in the kitchen, and heard Plaintiff say it would [C]78 be a bad trick in case his goods were not there. I did hear him say: ‘I think the goods will be there before the Red River carts.’ All which is truth, &c, &c.” Nicholas Courtel[le],15 sworn, deponed that Plaintf. made a contract with Defendt. to bring his pieces from St. Cloud’s at 15/ pr. 100. “Plaintiff said he would not go to Rivière La Biche. Heard Plaintf. say he would do all in his power to get the goods to St. Cloud’s. All which is truth, &c, &c.” Pierre Peirreault, sworn, deponed that Plaintiff said he was promised freight by Mr. Le May. He went with Mr. Le May. “I heard him say if the goods are not at St. Paul’s the 2nd, and not at St Cloud’s, he would not go to Rivière La Biche. I am not certain that Mr. Le May arranged with Plaintf., when he went to St. Paul’s, to see after Deft’s goods. All which is truth, &c, &c.”

General Quarterly Court of Assiniboia Records, 1866–69

481

John Cyere [was] sworn, and deponed that he knew nothing of the engagement, but on the third day Mr. Le May told [sic: asked] him if he would take goods for him. “Pltf. replied: ‘I cannot till I hear about Deft’s goods.’ He engaged to Mr. Le May at St Paul’s 9 days only – he left on the 10th day. All which is truth, &c, &c.” Andrew Harkness, sworn: “I was at Deft’s, and heard the Pltf. say that he would not go to Elk Rivière. All which is truth.” Verdict for Plaintiff for £3.00.00. Each to pay their own expences.

Albert Sargent versus Putman & Holmes [Case 306a] Debt: £62.10.00 Judgement for Plaintiff. Case went by Default. Debt: £62.10.00 Costs: 13.06 £63.03.06 16 [C]79

Alexr. Paul versus William Sinclair [Case 307] Debt: Costs:

£113.02.11 13.06 £113.16.05

Judgement for Plaintiff. Case went by Default

Henry McKenny versus Pierre Gladieux [Case 308a] Case Adjourned17

[In the Matter of Sargent vs. Putnam & Holmes] [Case 306a] Record Jean Magher hereby undertakes that out of the proceeds of that note (in the case of Sargent vs. Putnam & Holmes) he will satisfy any claims made on that note.18 W. R. Smith, C.C.

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[In the Matter of the Guardianship of the Minor Heirs of Edwin Thomson Denig] [Case 300b] 19 Record This day, the 15th of February, One Thousand Eight Hundred and Sixty-Six, the Court granted Letters of Guardianship to Ryer Olson over the minor heirs of Edwin Thomson Denig. W. R. Smith Clerk of the Court.

[In the Matter of the Guardianship of the Minor Heirs of James Isbister] [Case 309] 20 Record Be it known to all whom it may concern that John Isbister made application this day for Letters of Guardianship for the minor heirs of the late James Isbister. District of Assiniboia

W. R. Smith, Clerk of the Court 1866.

15th February,

[In the Matter of the Guardianship of the Minor Heirs of Louis Landré] [Case 310a] 21 Record Be it know to all whom it may concern that Joseph Landré made application this day for Letters of Guardianship for the Minor heirs of Louis Landré. District of Assiniboia

W. R. Smith, Clerk of the Court 1866.

15th February

[C]80

General Quarterly Court, 15 th May, 1866 22 John Black Esqre., Judge & President of the Court Robert McBeath Esqre., JP Thomas Sinclair Esqre., JP Roger Goulet Esqre., JP Sheriff McKenney Esqre.

The Queen versus John Parks [Case 311]

General Quarterly Court of Assiniboia Records, 1866–69

483

For Obtaining Goods under False Pretences William Robert Smith, Clerk of the Court, as Public Prosecutor23 read the Bill of Information to the Prisoner, and called the Prisoner to plead to the charge. The Prisoner pleaded Guilty. Sentence: two months’ imprisonment from this date

John Schultz versus Henry McKenney [Case 280d] 24 Debt: £300 This case was an adjourned case from the February court on account of a sworn affidavit by the Defendant that he was obliged to attend at court at St. Paul’s, US. Dr. John Schultz, when this case was called, addressed the Court, and said that he had stated at the last Court that he would never bring this case forward again, as he could not obtain justice. He had at that Court put a question to the Bench which they would not answer, and till that question was answered he could [not] expect any justice from a court which allowed itself to be intimidated and bullied.25 ¶ Judge Black [C]81 informed the Plaintiff that such language could not be permitted, and unless these words were retracted the Court could not listen to anything further from him – but if he would retract them the Court would be ready to listen to his pleading.26 ¶ The Plaintiff refused to do so, and the Court proceeded with the next case.

Henry McKenney versus Pierre Gladieu [Case 308b] 27 Damages: £10.00.00 Adjourned case from last court Case adjourned in consequence of the principal witness of the Defendant being absent.

Albert Sargent versus Putnam & Holmes [Case 306b] 28 Debt: [£]62.00.00

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An appeal from the last court for a new trial – and granted.29 It appeared that Plaintiff had got a bill [of exchange] for the above amount from the Defendant; but the Defendt. pleaded that he was obliged to pay any claim made on this bill. Mr. Wm. Inkster had a claim, as also the Defendt. on his private acct. After some little disputing about the price of the oats sold to Plaintiff, the case was settled, and judgement given for £21.08.02. Commentary The facts of this puzzling case seem to have been as follows. The plaintiff sold a quantity of oats to one member of the defendant partnership (which one is unknown) in his personal capacity. Payment was made with a promissory note or other bill of exchange for £62 that had been negotiated to the partnership by some previous holder, but upon which other previous holders also had unpaid claims and the defendant partner had residual rights. The plaintiff (nominally Albert Sargent but actually Jean Magher for some undisclosed reason) acknowledged by a notation in the court record for the previous session that he would honour all other claims against the bill. By the time of this rehearing, Magher had probably cashed the bill from whomever it was drawn upon, or had negotiated it for value to someone else and paid the claims of previous holders other than the defendant. The court having determined that the amount owed for the oats was only £21.8.2, Magher agreed to subtract that sum from the remaining proceeds of the bill and give the rest back to the defendant, who would if necessary account for it to his partner. Although these labyrinthine business arrangements may seem bizarre to modern eyes, they were common at the time at places like Red River, where a lack of sufficient currency caused endorsed promissory notes and other bills of exchange payable at future dates to be the principal medium of exchange.

William Drever versus Pierre Levallée [Case 312] Debt: £6.04.00 Case by Default – Judgement for Plaintiff: Costs: Debt: 10 days:

13.06 6.00.04 [sic] £6.13.10 30

[C]82

John Schultz versus Charles Garrett [Case 313]

General Quarterly Court of Assiniboia Records, 1866–69

485

Damages: £100.00.00 [Dismissed – see explanation after case 316.]

John Schultz versus Duncan Nolin [Case 314] Debt: £14.00.00 [Dismissed – see explanation after case 316.]

John Schultz versus Pierre Dumais [Case 315] Debt: £64.00.00 [Dismissed – see explanation after case 316.]

John Schultz versus Pierre Canada [Case 316] [Debt:] £22.01.00 [Dismissed – see explanation below.] [With respect to t]he four above cases, the Judge informed the Plaintiff that unless he retracted his former words31 the Court could not listen to [presentations from him] personally, but were willing to go on with the cases if he could get anyone to conduct his cases for him. The President advised the Plaintiff to withdraw the objectionable words; but he refused to do so. The cases were dismissed. Commentary Recorder John Black’s strong response to John Schultz’s verbal contempt of court in case 280d and the foregoing cases would snap back in his face before the year was up, and would continue to cause future trouble. The immediate reaction of Governor William McTavish to Black’s ruling was that “the mode taken to punish” Schultz was “unfortunate.” He thought “it would have been better either to have committed [him to prison] or fined him for contempt than to have closed the Court to him.” Excluding someone from access to the court, McTavish thought, virtually amounted to “outlawry,” which he considered “a very severe punishment” in the circumstances. Besides, he informed London, the incident was creating poor public relations for the Hudson’s Bay Company, inasmuch as Schultz had publicly “insinuated that it is an attempt ... to crush an opponent in trade.”32

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Law, Life, and Government at Red River

Whether because of McTavish’s reports to London, or of a complaint lodged by Schultz, or both, the company sought the opinion of London barrister Montague Bere about the legality of the punishment. Bere came down hard on Black: “I cannot conceive any conduct more ... irregular and illegal ... The judge of a court has authority to commit or fine for contempt of court, but has no authority to refuse to hear any party to a suit, or to prevent such a party availing himself of the court to enable him to obtain his legal rights. I strongly advise Mr. Black at once to rescind the order made by him.”33 The recorder did not take this “advice” lying down. While acknowledging that “a more strongly expressed opinion ... [than Bere’s would not be] easy to imagine,” Black felt that it had been based on an insufficient understanding of the facts. He therefore prepared a full report for both the governor and the London office of what had transpired between Schultz and the court. He added a report he had gleaned from a London newspaper of a House of Lords speech referring to a South African case in which a similar “legal excommunication” had apparently been imposed for contempt of court.34 Black’s position was that the “excommunication” he had imposed on Schultz was more lenient than either fine or imprisonment would have been and must, therefore, lie within the “spirit” of the law of contempt, at least in a place like Red River where the courts strove only for “substantial justice between man and man.”35 Mr Bere did not agree. In a second opinion36 – one in which he deigned to cite legal authorities unavailable at Red River and missing from his own first opinion – Bere explained that although a lawyer may be banished from court for contempt, a litigant may not. He rejected the South African precedent cited by Black on several grounds: its description in the House of Lords debate may have been mistaken; the decision might have been based on Dutch law; and in any event, colonial courts were often unreliable. By the time Bere’s second opinion reached Red River, Governor McTavish had already persuaded the recorder “to remove the bar to Dr. Schultz’s personal appearances as plaintiff in court – on the grounds that it was considered that his exclusion up to that time [the February 1867 court session] had been sufficient punishment for his offence.”37 This did not satisfy Schultz, however; as late as 1870 he was still seeking compensation from the HBC for the court’s refusal to entertain the foregoing cases in 1866.38

Alexander Murray versus James Lillie [Case 317] Debt: £19.08.07

Constable sworn to delivery of summons, Plaintiff sworn to his account. Judgemt. for Plaintf. – Case by Default – Debt:

£19.08.07

General Quarterly Court of Assiniboia Records, 1866–69

Costs: 10 Days:

487

13.06 £20.02.01

[C]83

Robert Morgan versus J. B. Holmes [Case 318] Damages: £18.00.00 [Cartage Fees] Plaintiff stated that he had been employed by Defendant to carry merchandise from St. Paul’s, US, to this Settlement, and that his carts and been detained 15 days waiting for the arrival of Defendant’s property – with 8 or 9 carts. He stated his loss at the rate of £1.4.0 pr. diem for the 15 days. Joseph Lambert, being duly sworn, deponed that they were detained 15 days at Elk River. All which is truth as he shall answer to God. David Fidler, being duly sworn, deponed that he was at the above trip, and they were detained 15 days. All which is truth, &c. Verdict for Plaintiff: that Defendant pay for 1039 days at £1.04.00 pr. day, or: Damages: £12.00.00 Costs: 2.05.06 10 days: £14.05.06

John Setter versus Robert Morgan [Case 319] Debt: £6.07.00 [For Nondelivery of Horse] Plaintiff stated that he had given an ox and some lumber to Defendt. in part payment for a horse. The Defendt. was to deliver the horse on demand at a certain time specified. The ox was delivered to Defendt., who made 2 trips to the States with it. But he, the Plaintiff, had not yet got the horse, as the Defendt. stated that the horse had been stolen, & [the Defendant] returned the ox again to the Plaintiff. He now brought the present suit for compensation for the services of his ox for two trips to the States, and the value £1.17.00 for the lumber. [C]84 Benjamin McKenzie & Duncan McKenzie were both sworn, & deponed to the delivery of the ox, and to its being in sound health when delivered to Defendant.

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Joseph Lambert [was] sworn, & deponed that the ox was very weak when they started with him. Verdict for the Plaintiff: Loss of ox & horse: Lumber: Costs: 10 days grace:

£3.00.00 1.17.00 1.13.06 £6.10.06

[In the Matter of the Guardianship of the Minor Heirs of Louis Landré] [Case 310b] 40 Record This Fifteenth day of May, 1866 this Court granted Letters of Guardianship to Joseph Landré over the minor heirs of Louis Landré. W. R. Smith, Clerk of the Court [C]85

The General Quarterly Court, held on the 16 th day of August, 1866 41 Present: John Black Esqre., Recorder James R. Clare, JP42 Thomas Sinclair, JP Robert McBeath, JP Roger Goulet, JP Henry McKenney, Sheriff

Kecezaway Pecheto versus Joseph Norin [Case 320] 43 For Debt: £15.00.00 Judgement by Default, Constable sworn to delivery of Summons: Debt: £15.00.00 Costs: 13.06 £15.13.06

The Queen versus Ellen Linklater [Case 321] Infanticide A Grand Jury having been empanelled, two Bills of Indictment were laid before them: one bill against Ellen Linklater for infanticide, and the

General Quarterly Court of Assiniboia Records, 1866–69

489

other against John Demarais for murder. The Grand Jury returned True Bills against both the parties, and the above Ellen Linklater was put on her trial. ¶ After the Bill of Indictment had been read to her she was called on to plead thereupon. She pleaded Not Guilty. A Petit Jury was then empanelled and approved of by the Prisoner. The case proceeded. [C]86 Curtis J. Bird MD, who being duly sworn, deponed that he had seen the body of a newborn infant, reported to be the Prisoner’s. There was no marks of violence on the body. The lungs shewed that the child had been [born] alive by the test of water. By the cord, it also appeared to have lived: the blood was red; the cord was red and tied with a piece of thread; and it appeared that an effort had been made to save it. The body was wrapped in two shawls. The days about that time were warm, the nights cold. Cannot say if any food had been given. “I think it quite possible that the woman delivered herself, and might have fainted – it is not uncommon. My opinion is that she denied her pregnancy. I knew the Prisoner as a nurse, and she behaved well. It is not likely she would swoon more than two or three minutes. The exposure of the body of the newborn infant to the cold was the cause of its death. All which is truth, as I shall answer to God.” Mrs. John Brown, who being duly sworn, deponed that: “From the appearance of the Prisoner in May last I knew she was pregnant. Saw her on Sunday afternoon. Cannot say if she had been delivered then. The next morning Mrs. Knott shewed me a clot of congealed blood. I then went to the Prisoner’s, and saw her. She told me that she had her monthlies. The Prisoner [then] came to my house, and told me that she had had a small – a very small – child, and told me where she had put it. I went to see it, but it could not be found. But Mrs. Knott found it in the shed. I saw the child, and when the Prisoner came to my house she then told me she had been delivered. I do not believe the infant to have been hurt. It was tied up in a piece of quilt and a handkerchief. I think it died from exposure. It was [C]87 on a Tuesday. By the peculiar way the infant was tied, [it appeared] that it had been tied after death. All which was truth, &c, &c, &c.” Compeared also Mary Knott who, being duly sworn, deponed that she knew the Prisoner. “I saw her coming home on Sunday evening. I knew the Prisoner was in the family way, saw her look very bad, [and] saw that she had had a child. This was Monday morning after breakfast. I saw and found a clot of blood, [and] I believed that she had been delivered. Mrs. Brown asked me to go over to see Prisoner – where she denied at first having had a child. After that she threw herself at Browns’ door, and said she had had one. Four of us went to look, but found nothing. On Tuesday following we

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looked about, and the Prisoner told me to look in the shed – and I found the body lying on the ground.” ¶ “Sunday night I went and fetched it home, and washed it, and put it at my pillows, and then – on Tuesday – into my box, and then to the place where it was found.” (This statement the Prisoner made to Witness.) ¶ “I, the Deponent, do not think the Prisoner intended the destruction of the infant. She, the Prisoner, told me she had gone out for a walk and labour took her. And that she was down on her knees, and when the head protruded she fainted – and found the child dead on her recovery. All which is truth, as I shall &c, &c, &c.” Compeared also Mrs. Lambert who, being duly sworn, deponed that she was at Scott’s house on Tuesday. She had heard that the Prisoner and the infant were dead. [She] saw the body of the infant at the Prisoner’s house. She, Deponent, got the44 infant’s body at Browns’ house. The infant’s body had a few spots on its back, but [was] otherwise clean. The infant had stooled. “I did not see if the navel string was tied. The infant had a lump at the back of its head. It was a stout male child. The Prisoner was not, on Tuesday, right in her senses. All which is true, &c, &c, &c.” Verdict: Guilty of the Concealment of the Birth of her Child.45 Sentence: three months imprisonment from this date: 16th day of August, 1866 to 16th Novr., 1866 [C]88

William Tait versus John Pritchard [Case 322] Debt: £7.00.00

Plaintiff sworn to his debt, Constable sworn to delivery of Summons. Case went by Default: Debt: Costs: 10 days Grace:

£7.00.0 13.6 £7.13.6

Henry McKenney versus Thomas Taylor [Case 323a] 46 Defamation This case was deferred, and it was ordered that Mr. R. Goulet examine Mr. McKenney’s witnesses in the meantime.47

General Quarterly Court of Assiniboia Records, 1866–69

491

Henry McKenney versus Pierre Glaudieux [Case 308c] 48 Damages: £10.00.00 [Loss of Robes in Transit] Joseph Landré, who being duly sworn, deponed that he had had the carts of Defendant [which were carrying Plaintiff’s goods] in charge on their way to St. Cloud. “On arriving at St. Cloud on a Sunday evening, a man of the place asked me if the robes were for sale. I told him ‘no.’ The next day I missed the robes – one pack. I went over all the place seeking them, but could not find them. We started from here on the 12th, and Mr. McKenney was to have started on the 20th, and he was to have caught us up before we reached St. Cloud. And I lost the pack of robes during my stay. I waited four days St. Cloud’s. All which is truth, &c, &c, &c.” Defence ended here 18th Augt., 1866 – 3rd day.49 A. G. B. Bannatyne, who being duly sworn, deponed that at [the] time these robes were lost they were selling at St. Paul’s [C]89 at $8, or about 23/ or 24/ per robe. “I think a person who [h]as it in his power ought not to encamp at such a place as St. Cloud. I also think it safer to sleep under carts for the protection of property. All which is truth, &c, &c, &c.” Verdict: for Defendant.50

Alexander Paul versus John Rumsey 51 [Case 324] [Debt: £20.17.8] By Default: debt & delivery of sums. sworn to: Debt: Costs: 10 days Grace:

£20.17.8 17.6 £21.15.2

The Second Day of sitting August 17 th 1866 The Queen versus John Demarrais [Case 325] Murder of an Indian A True Bill having been found against the Prisoner,52 he was, after his Indictment had been read, called upon to plead – when he pleaded Not Guilty. A Petit Jury being empanelled, the case proceeded.

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Curtis J. Bird Esqre., MD, who being duly sworn, deponed that he had held an inquest on the body of White Nail (an Indian), 18th July last. [He] saw a wound on the left arm, half an inch long, near the elbow, and several other scratches recently inflicted by some sharp instrument. [He] also [saw] a wound on the left side of the belly, the intestines protruding. The wound was about two inches wide, and had opened one of the intestines that protruded. The wound was made by a sharp instrument. “I think the wound in the belly was the cause of his death – I have no doubt on the subject. [C]90 I saw him on the same night [as the stabbing?], about 12 o’clock. I heard on Tuesday morning that he was dead. I had seen him in the morning in a dying state. The wound had been sewn up by the Indians, the intestines still protruding. On Wednesday I held the inquest. All which is truth, as I shall answer to God.” Goodwin Marchand who, being duly sworn, deponed: “I was at the Fort when the Indian was stabbed. I do not know his name. I saw the Indian after he was stabbed, when he was coming to be tied. He was holding his side. I saw a wound – I think it was the left side. I asked53 the Indian who had wounded him, [and] the Indian pointed to the Prisoner as the man. He, the Indian, was standing inside the Fort gate. He looked uneasy. [I] saw a blade of a knife. Sayer shewed me the blade [and] said it was the knife that had done the deed. It was a little blunted at the end. When I saw the intestines were also open, after trying to put them back I left off. Mr. McKenzie was there. I never saw the Prisoner before – I believe that is the man. I was at the end of the store, and the Prisoner was at the gate. I think there was another, but cannot swear. I did not see the Prisoner strike the Indian – there were many people gathered there. I was there, but did not interfere. I did not see or hear any quarrelling. I saw the Prisoner closer when they had hold of him. He appeared a little in liquor, but not drunk. All which is truth, &c, &c, &c.” Antoine Dejarlais, who being duly sworn, deponed: “I remember being at the Fort the day the Indian was stabbed. I know the Prisoner. [I] saw him stab the Indian, whose name I do not know. I do remember to have seen him before. The first blow the Prisoner struck the Indian [was] in the belly on the left side – with [C]91 a clasp knife. I saw him take the knife out of his pocket, and open it with his teeth. He held the Indian by [with?] the left hand at first, by the throat, when he stabbed him in the left side; but the Indian got away. Then Prisoner held him by the hand, and stabbed him in the arm. He struck him (the Indian) several times I think, but am sure once in the side and once on the arm. He struck several times, but [I] cannot swear that each blow struck the Indian.”

General Quarterly Court of Assiniboia Records, 1866–69

493

¶ “I was close to the two Indians, talking to them, when the Prisoner came up to them, The Indians said nothing to him. The Prisoner said: ‘Are these the Ochebewuck?’54 I said: ‘Perhaps they are.’ He then took one in each hand. I stepped up to prevent him, when he said: ‘This is the day I will open your bodies.’ The (wounded) Indian called to the other Indian for his tomahawk. When the Indian got the tomahawk, then the Prisoner stabbed him. I did not see the Indian menace him. The Indian said: ‘If you stab me I will strike with the ax.’ After that the Prisoner stabbed him. I saw the wound on the side, and on the arm. I do not know if they had been quarrelling before. I had been talking with the Indians a short time. I heard of no quarrelling. I did not hear the Indian say anything after he had been stabbed. I was about 15 feet from them when the Indian was stabbed. When the Prisoner threatened the Indian he asked for his ax. All which is truth, &c, &c, &c.” George Fidler, who being duly sworn, deponed that he knew the Prisoner at the bar. “I saw him stab an Indian on the left side with a knife. He stabbed him twice. He held the Indian by one hand, and stabbed him with the other. He held the Indian by his handkerchief. I did not see the Prisoner till he was stabbing. I did not see the Indian do anything. He held an axe, I heard the Prisoner say: ‘I will kill a Red Laker.’ I do not know to whom he spoke. [C]92 The Prisoner was drunk – he staggered a little. I saw the knife – young Sayer gave it me. I do not know where he got it. All which is truth, &c, &c, &c.” Duncan MacDougal, Constable, who being duly sworn, deponed that he had taken the Prisoner into custody on the day of the murder. “On searching him [I] found this handle of a knife on him. He was drunk. On going to the jail between two men he said he ‘hoped he would not be long before he would be out.’ All which is truth, as I shall answer, &c, &c.” Defence: Amable Marrion, who being duly sworn, deponed that he knew the Prisoner at the bar, and [he] always appeared to be a quiet man. “The [one] who was killed was, as I heard, a bad Indian, and wanted to kill my brother, but this I cannot swear to. All which is truth, &c, &c, &c.” Roger Goulet JP,55 being duly sworn, deponed that he was of opinion that the words made use of by the Prisoner to the Indians were not rightly translated by the parties given them, as their meaning conveyed to his mind a different meaning. After some little discussion Deponent was found correct, but this did not alter the facts of the case.

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Albert Sargent, who being duly sworn, deponed that he knew the Prisoner, who, when sober, [was] civil, behaving himself well. “All which is truth, &c, &c, &c.” Verdict: Guilty of murder. Sentence: to be hung on the 4th day of September, 1866. Commentary This case, concluding in the Red River Settlement’s first death sentence since the Heckenberger infanticide case in February 1852,56 attracted much attention, as well as considerable sympathy for both the victim and the perpetrator. The killing seems to have been a delayed drunken response to a grim massacre and mutilation that summer of four visiting Sioux by a group of Saulteaux, also from the United States, abetted to some extent by local compatriots.57 J.J. Hargrave, who attended the trial, reported58 that relatives of the deceased Saulteau had set up their tents immediately outside the courthouse, announcing their intention to avenge their kinsman if the authorities did not do so. The accused’s numerous friends and countrymen, many of whom were also in attendance, considered him to be a basically good man, temporarily blinded by drink, toward whom leniency should be shown. After the jury brought in the inevitable verdict of guilt, the courtroom was cleared of spectators in order to give members of the court an opportunity to discuss the sentence among themselves – even though it was generally understood that the law allowed the court no option other than death. Hargrave described the scene after the courtroom doors were reopened: “The chamber was immediately crowded, the constables present devoted themselves to the maintenance of order, and the Prisoner was placed in the dock. The Judge commenced to speak, the audience whispered ‘Hush! Hush!,’ and the Sheriff shouted ‘Order!’ But the Prisoner spoke French and Cree, and the Judge, who was resolved that there should be no mistake, suggested that someone should interpret what he was about to say. The constable who usually officiated as Cree interpreter was on duty, but declined acting under the present painful circumstances.” After a replacement interpreter was found, the recorder “opened his address amid profound silence,” and spoke longer than either Hargrave or the interpreter (judging from the latter’s “expressive grimaces”) considered appropriate. Eventually, however, Black pronounced the sentence: to be hanged on 4 September. He did inform the prisoner, however, that Governor McTavish “had still power to commute the penalty.” In the days following, a petition was circulated in the settlement requesting the governor to exercise executive clemency. The petition eventually bore between 300 and 350 signatures, including those of “some of the most influential men in the Settlement,”59 and even “some of the immediate relatives of the unhappy victim, who felt for the family of Demarais.”60 That was enough to persuade Governor McTavish to commute the death sentence to banishment for life from the settlement. The result, according to Hargrave, was that “after some difficulty had been surmounted in

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conveying the Prisoner out of the Settlement without the knowledge of the Indians, he was transmitted from one post of the Company to another, and ultimately restored to liberty in New Caledonia.”61 Recorder John Black’s charge to the grand jury in this case had eloquently condemned the evil consequences of intemperance, of which he and others considered this killimg to be one: “I wish to point to the fact of the enormous – the appalling – increase which has taken place in the importation and consumption of spirituous liquors in and around the Settlement; and to ask you solemnly and seriously whether, under the continuance of such a deplorable state of affairs, you think it possible to prevent the total dissolution of the framework of society.” If anyone were inclined to doubt the seriousness of the problem, he said, let them consider the huge increase in recent years of imported spirits, legal and illegal, and of local distillation, amounting “in the sum total [to] a fountain of moral poison enough to ruin any community, even far more numerous than ours,” and “count up the drunken men who have been frozen to death; the men who have lost their limbs and nearly lost their lives; the men who, as in the present case, have been goaded to crime by the demon of drink. And if from all these things he was not convinced,” he added, I would finally tell him to go – almost any day he pleases – for an hour’s drive or an hour’s walk upon almost any of the public roads, and to look at the victims of intemperance that are to be seen in almost every stage of drunkenness: from the half-drunk but infuriated madman, with his gun or his knife or his hatchet in his hand ... rushing and warring and jumping like an evil spirit, down to the pitiable creature who lies dead drunk in the road before you, utterly unconscious of your presence ... This is no imaginary picture; it is the truth. It is what I have often seen myself ... doubtless you have also. In the recorder’s view, “things are verging to a crisis,” and soon “one of two things must be done: either we must as a community put an end to the drink, or the drink will put an end to us.” He called upon the grand jury to demand reform: “It is time – it is high time – you should lift up your voice in earnest denunciation against this gigantic evil.” Realizing, perhaps, that he was asking for more than representatives of a redblooded frontier community were likely to agree to, Black concluded this stirring call for action by stepping back a little. “Whatever may be thought of the necessity, or the expediency,” of general temperance legislation, he said, it was at least clear that improvement was needed in the laws relating to the sale of liquor to Indians: “It may have been written in the Book of Fate – I cannot tell – that beneath the tide of advancing civilization the Red Man is doomed ultimately to disappear altogether from amongst us ... But whatever may be the destiny which may have been fixed in the counsels of the eternal, may it never be said about us as a community that, in the sordid pursuit of our own worldly ends and interests, we have” speeded up the process.

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How the grand jury responded to the recorder’s cri de coeur is not known; but if it did make any of the suggested recommendations, they never received legislative consideration. No recorded reference to either the grand jury or the reform of liquor laws was made at the next two meetings of the Council of Assiniboia, one of which was chaired by Black as acting governor. Some improvements were eventually made to the settlement’s drinking legislation in November 1868, however.62

Henry McKenney versus John Pritchard [Case 326] Debt: £24.17.08, including Costs: 13/6 Case went by Default, Judgement for Plaintiff, 10 days to pay £24.17.08: Debt: £24.04.02 Costs: 13.06 £24.17.08 as above [C]93

The 3 rd day of August Sittings, 18 th August, 1866 F. E. Kew versus Henry McKenney [Case 327] 63 Balce. of Debt £639.18.00 [Bill of Exchange] After a very long discussion of the right the Plaintiff had to summons the Defendant alone on a bill [of exchange] signed by Henry McKenney and John Schultz, this [objection] was overruled by the Judge – [he] shewing the right of the Plaintiff by the wording of the bill which the Defendt. had signed, and which bill bound them jointly or separately. Therefore it was at the option of the holder of the bill to demand a settlement of the account from either, as they were jointly and separately answerable to the Plaintiff. There was also offsets by the Defendts. against the bill, which, after being [accounted for], reduced the amount. Remaining due was £536.03.02.64 The Jury returned a verdict for Plaintiff for the sum of £536.03.02, with interest @ 5%, this amount not to be paid until a bill [for] £225.01.00, given to Plaintiff by Defendant be returned, or sufficient guarantee be given for the amount to Henry McKenny the Defendant. Commentary Frederick E. Kew was an English merchant-exporter who had provided the McKenney-Schultz partnership with its inventory on credit. In 1865, after the partnership had dissolved, Kew came to Red River, met with the former partners, and

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persuaded them to sign a joint promissory note (a form of bill of exchange) payable to him in the sum of £1,460. Before leaving the settlement, Kew appointed John Inkster as his local agent in the matter. Although McKenney and/or Schultz had reduced their indebtedness to Kew significantly in the ensuing months, there was still a large sum owing when Inkster commenced this action against McKenney in Kew’s name. Although he succeeded in obtaining a judgment for the full amount of the claim, less previous payments and setoffs, Inkster chose to demand payment of only half the award from McKenney, seeking the rest from Schultz. Schultz refused, and efforts to make him pay would have dramatic consequences in years to come.65

The 4 th day of Sittings of August: 20 th August, 1866 William Drever versus Henry McKenney [Case 328a] 66 Trespass & Damages Case deferred till next court.

Andrew McDermot versus Charles Garratt [Case 329] [Debt:] £10.00.00 Verdict for Plaintiff: Debt: Costs: 10 days:

£10.00.00 1.13.06 £11.13.06

[C]94

Charles Garratt versus Andrew McDermot [Case 330] 67 Damages [Flooding of Natural Spring] John Smith, who being duly sworn, deponed that he had built a dam for Defendt. in the year 1851, which dam always affected the spring now in contention. “And the present dam will affect it equally as much. I have frequently seen the lower dam overflow the spring by the back water. I heard the Plaintiff tell Mr. McDermott that his dam was injuring his spring. I think the water covered the spring during the time of the former possessor. All which is truth, &c, &c, &c.” Celestine Thomas, who being duly sworn, deponed that: “I know the spring at Sturgeon Creek. I think the dam building will cause the water to overrun the spring. The difference of the temperature of water in the

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distilling to the extent of 3 pints to a bushel of loss [sic]. All which is truth, &c, &c, &c.” Charles Garratt, who being duly sworn, deponed that he saw the water overflow the spring. “I bought the land from Mr. Curtis, and I now read the receipt [evidencing the purchase from Curtis] (receipt read). On the 25th July there was a heavy rain, and on the 26th Defendant’s dam caused the water of the creek to overflow my spring.” Verdict: for Defendant. [C]95

George Racette versus Brian Devlin [Case 331a] 68 Damages £500.00.00 Case deferred till next court.

R. Paterson versus Brown [Case 332] Debt To stand over till next court.69

Adam McDonald versus Js. Settée & Wife [Case 333] Debt: £120.00.00 William Inkster, who being duly sworn, deponed that: “Among the bills [of account] presented in account with the estate of the late Joseph Corrigal70 for liquidation, I objected [to] the present bill of £12 for the hire of a horse as extravagant. The mare was lent 29th May, and was returned in December. All which is truth, &c, &c, &c.” Plaintiff stated the bill only consisted of the hire of the mare, and the loss of her services by not being returned when brought back.71 And he had lost much time in seeking her, which time he thought the opposite parties ought to pay. Verdict for Plaintiff: Costs:

£5.00.00 1.17.00 £6.17.00

NB: One witness – 2/6 – not charged in costs.

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[C]96

General Quarterly Court, held the 15 th day of November, 1866 Present: John Black Esqre., Recorder Dr. Cowan, JP72 Robert McBeath Esqre., JP Roger Goulet Esqre., JP

The Queen vs. John Savoyard [Case 334] Larceny The Prisoner pleaded Guilty. Sentence: Two Weeks’ Imprisonment from this date.

Henry McKenney vs. James Bird [Case 335] Debt £18.03.00 Case went by Default. Costs of Suit: 13.06 10 days to pay: £18.16.06

Henry McKenney vs. George Stevenson [Case 336a] 73 Debt: £7.09.01 Case referred to next Court.

Henry McKenney vs. Charles Stevenson [Case 337] Debt: £5.10.00 Judgt. for Plaintiff: Costs: 12.06 3 months to pay: £6.02.06 [C]97

Henry McKenney vs. Thomas Taylor [Case 323b] 74 Defamation – Damages £300.00.00

499

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Case referred to next Court.

William Drever vs. Henry McKenney [Case 328b] 75 Trespass Case referred to next Court.

Thomas Logan vs. Janvier Richot [Case 338] Debt £6.10.00 This case was referred to the Bench and their decision was for the Plaintiff,76 viz: Debt: Costs: 10 days to pay:

£6.10.00 13.06 £7.03.06

J. B. Holmes vs. St. Pierre Morin [Case 339] Debt: £12.05.03 Case by Default: Accot. Sworn to by Plaintf ., & Constable to delivery of Summons Judgt. for Plaintiff: £12.05.03 Costs of suit: 14.02 10 days to pay: £12.19.05

The Queen vs. Eustan Savoyard [Case 340] Larceny The Prisoner pleaded Not Guilty. A Jury was empanelled, and the trial began by Bill of Information. Morrisson McBeath, who being duly sworn, deponed that he knew the Prisoner at the bar, and: “I know that the store of Dond. Bannerman was broken into on the 7th October – on the Sunday morning. Some time [C]98 on Monday morning our servant told us that the Prisoner had come home to his father’s tent. I then accompanied Dond. Bannerman to the said tent, and found the Prisoner sitting there – and [he] had on a new shirt. Dond.

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Bannerman asked him where he got it. We also saw a capot. The Prisoner said he had bought them. Dond. asked him from whom, and he could not answer. Dond. then said his store had been broke into, and he suspected the Prisoner for having broke his window and of robbing him of the property. We took possession of the property, and Dond. said to the Prisoner: ‘I am not sure if this is all you took.’ The Prisoner said: ‘The Devil a thing more I took.’ He said this twice over. The shirts and capot are, to the best of my belief, the property of Dond. Bannerman. He [the Prisoner] further said that a strange Indian whom he did not know was with him, who was drunk, and that he, the Indian, had broke the window, and he, the Prisoner, promised to pay for the window.” All which is truth, as the Deponent shall answer to God. Angus Henderson, Constable, [was] sworn, and deponed that he apprehended the Prisoner, and stated as follows. “When I took him (the Prisoner) he told me that a strange Indian was with him. I replied that he was always among the Indians, and knew them all. I then asked him if he had broke into Dond. Bannerman’s store. He said the store was open, and that he took a capot, and the Indian took a shawl. All which is truth.” George Sutherland, who being duly sworn, deponed that the Prisoner was engaged to him. “And about the time of this robbery I had given him in cash about [C]99 2/6 and a shirt for 5/, and another shirt, as part of his wages.” All which is truth, as he should answer &c. Donald Bannerman, who being duly sworn, corroborated the first witness throughout. George Sutherland, recalled: “I remember Dond. Bannerman saying to me: ‘Your man broke into my store.’ I said I believed it. Dond. Bannerman said he would let the Prisoner off if he got 20/. I would have given the boy 20/, but my father-in-law persuaded me not to do so. All which is truth, &c, &c.” Verdict: Guilty. Sentence: Two Months Imprisonment from this date.

Alexander Paul vs. Louis Morin [Case 341] Debt: £40.09.06 Case by Default:

Captain Donaldson swore to Acct.

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Constable sworn to delivery of Summons. Debt: Costs:

£40.09.06 14.02 £41.03.08

Robert Tait vs. Joseph Lapierre [Case 342a] 77 Debt: £7.18.00 [&] Costs: 15/6 = £8.13.06 Referred to next Court.

Collector of Customs vs. A. R. Gerold [Case 343] Import Duty £2.06.3 [&] Costs: 13/6 = £2.19.9 Case went by Default: 10 days [to pay] [C]100

General Quarterly Court, held on the 21 st day of February, 1867 at which the following magistrates were present, viz: John Black, Esqre., Recorder of Assiniboia, President William Cowan, Esqre., MD, Justice of Peace Robert McBeath, Esqre., do. do. Thomas Sinclair, Esqre., do. do. Roger Goulet, Esqre., do. do.

Henry McKenney versus Thomas Taylor [Case 323c] 78 Damages for Defamation: £300 The Plaintiff withdrew this case.

William Drever versus Henry McKenney [Case 328c] 79 Trespass and Damages The Defendts having occupied a lot of land which Plaintiff claimed as his property, [the latter] having obtained the said lot from the former

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possessor, and had his name entered for the said lot by Stephen Green, the former possessor, in the Land Register, [sought damages against the Defendant]. On the other side, the Defendant pleaded that he held a deed from the aforesaid Stephen Green, to hold the land in trust for the benefit of his step-daughter and [for] a debt that he, Stephen Green, was due to Defendt.; and he had in consequence ploughed and sown a portion of the said land. John Geddes, who being duly sworn and interrogated, deponed that he was present when he heard Plaintiff desire the Defendant to leave off, as he was trespassing on his property. Saw John [C]101 Beckie ploughing on the lot, and heard Plaintiff warn him that he was trespassing, and that if he did not desist he would summons him. He had between two or three acres of land ploughed. Cross-questioned by Plaintiff: “What land was ploughed?” Ansr.: “The land formerly occupied by Stephen Green.” Defence: James Tristom, who being duly sworn and interrogated, deponed that the night before Stephen Green left this Settlement: “He offered me this lot now in dispute for the sum of £7 due to the Plaintiff, and a small sum over and above. I asked Plaintiff how much he would take for the lot, and he said £10, so I made no bargain.” The Defendant produced an attested paper from Stephen Green, now of United States, stating that he had never sold the lot to Plaintiff – had only left the lot in pledge for his debt to Plaintiff. The Recorder summed up, and the Jury after a short time returned the following: Verdict for the Plaintiff, with no damages.

Defendant made application for a new trial. The Court granted the application. Costs in this suit today: The 2 other courts:

£1.16.00 16.00 2.12.00

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The question of costs to be settled at next court, each party for the present each to pay their own expences.

Robert Tait versus Joseph LaPierre [Case 342b] 80 Debt of:

£7.18.00

1866 Novr. Court Costs: 1867 Feby. do. do.

13.06 13.06 9.05.00

[C]102

Thomas Hoggue versus Sandy Cammeron [Case 344a] 81 Damages: £8.00.00 Case referred to next Court.

John Schultz versus J. M. Howse Senr. [Case 345] Debt: £40.14.0082 Case referred to next Court.

Philip Kennedy versus John Mooneya [Case 346] Debt: £39.06.00

Constable swore to delivery of Summons. Plaintiff swore to correctness of his Account. Case went by Default: Debt: £39.06.00 Costs: 15.04 10 days to pay: £40.01.04

John T. Putnam vs. James B. Holmes [Case 347] Bill for: £58.10.00 Costs: 13.06 10 days to pay: £59.03.06

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505

William Drever versus Patrice Cyre [Case 348] Debt: Costs: 10 days to pay:

£6.08.06 13.06 £7.02.00

André Ritchot vs. Antoine McLeod [Case 349] Damages: £25.00.00 [For Maltreatment of Ox] Pierre Ritchot, who being duly sworn and interrogated, deponed: “I saw 2 oxen before starting for the States. They were poor, but with proper care I think they might have made the trip. The mare was in order, [C]103 and Plaintiff hired an ox from Defendant to relieve his oxen on the way. One ox was lost: I found the ox with a long line dragging after him 2 or 3 days after. I do not know whether they were more poor than last year. The last year they made a trip to the US, and afterwards to the plain fall hunt. The oxen, when returned, were badly wounded on the back by the clubber.83 The one I saw, the others I did not see. Only saw 2 oxen and a mare. They were very poor. Did not see any wounds or marks.” [He] does not know whether they were ill-used, but thinks the wound he saw on the back of one of the oxen was caused by carelessness and neglect. Bazil Parenteau, who being duly sworn, deponed that he was in company with this brigade of carts, and saw the animals ill-treated by Defendant’s man, who [word missing] one of the oxen with a stick. That made the ox drag his rump. “At St. Cloud I saw the oxen – they were very poor. I do not know that there were some pieces taken out of the carts on account of the animals’ knocking up. Saw Defendant’s man stab the ox on the ribs several times, but saw no blood follow.” Pierre Canada, who being duly sworn, deponed that he saw the animals after their arrival: very poor. It was by the clubber wounded badly. It was very poor. “I heard the Defendt’s man say that the mare was better than the three oxen. Saw him riding the mare at a half race. I think if the animals had been taken proper care of, worms could not have got in to their backs.” A. G. B. Bannatyne, who being duly sworn and interrogated, deponed that at St. Cloud’s “I gave the Defendant [C]104 the loads for his oxen. Defendant said his oxen were poor. I told him to only take what he could

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bring through. He brought here about eleven hundred pounds less than the load that he took at St. Cloud’s. I paid £26.08.00.” Ambroise Lépine, who being duly sworn, deponed that the oxen were very poor before starting. Some oxen that were in better order [missing word: were?] knocked up as well as these. Louis Blondon, who being duly sworn, deponed that he saw the oxen before starting. They were very poor. “I did not think them able to make the trip. Have seen the oxen since their return.” Has seen them twice. Saw them bring hay to Fort Garry – saw no marks on the oxen. When they returned they were much poorer. Christophe Laderoute, who being duly sworn, deponed that he was present when they went for the carts and harness, which were in bad order. The oxen [were] very poor. Carts [were] not ready. At Scratching River the oxen began to knock up, getting worse as we proceeded. The first day after taking the loads went well, [but] the next day they began to knock up – one fell down. “I never used anything but a willow. I washed the wound with salt and water. Made the clubber as well and easy as possible by tearing up a blanket and a pair of trowsers.84 I did stab the ox with a broken pointed pocket knife, as I was filling my pipe at the time, but the knife could not hurt the ox, as it was impossible to enter into the hide.” Donald Nolin, who being duly sworn, deponed that he first saw Defendant at Salt Lake. “There was only one ox and the mare a little [C]105 in good order, but the others were very poor. They were but very lightly loaded. I think Defendant did his best to take care of them. I never saw Laderoute ill-treat the animals.” André Goudré, who being duly sworn, deponed that he saw the Defendant the first time at Salt Lake, and that at the first he did not pay any attention to the animals. But continuing in company with them, and seeing the oxen so frequently knock up, he then noticed that they were very poor, and “I took four packs from their carts. I never saw Defendant illuse the animals. I would not have undertaken the trip with such poor cattle.” François Nolin deponed that he went out with the party, and that there were one fat ox going before, and the other poor ones were tied behind the first cart in succession to each other – and that the fat ox was killed by dragging them along. “We arrived at St. Cloud’s together. And the first day we started from there the oxen went well. I then left them. Never saw the cattle ill-used.”

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507

Verdict for the Defendant. [Plaintiff has] 10 days to pay Costs: £2.11.09

Wm. Inkster versus Geo. Kipling [Case 350] [Debt: £60.00.00]

Constable sworn to delivery of Summons [Default] Judgement for Plaintiff: Debt: £60.00.00 Costs: 14.02 10 days to pay: £60.14.02 [C]106

The General Quarterly Court, held on the 21 st May, 1867 Present: John Black Esqre., Recorder, President William Cowan Esqre., JP Thos. Sinclair, JP Robt. McBeath Esqre., JP Roger Goulet Esqre., JP Criminal Cases:

The Queen versus Ogebbeway, an Indian [Case 351] Felony85 The Prisoner being placed at the bar, and the Bill of Information having been read and interpreted to him by a sworn Interpreter, he the Prisoner pleaded Guilty to the charge. Sentenced to one month’s imprisonment from this date. Civil Suits:

Thomas Hoggue versus Sandy Cammeron [Case 344b] 86 Damages: £8 [Misuse of Plaintiff’s Lost Horse] William Sharp [was] sworn, and deponed that he was engaged to Defendant the last summer, and saw Defendant snare a horse at Two Points.

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“[I] thought the horse belonged to Plaintf. The horse, when brought to the camp, had a stamp. Mr. Lockart used the horse all the way to St. Paul’s. The Defendt. was obliged to furnish Mr. Lockart with a horse. Brought the horse back in a cart87 from St. Paul’s. Defendt. sent me, [C]107 after our return, down with the horse to Plaintf. The horse was very ill and thin. Mr. Lockart said, on leaving us, to take the horse back safely: don’t ill-use him. Defendt. gave a horse to Mr. Lockart to ride, but all the horses knocked up. If the horse had returned light I think he would not have been so bad as he was.” Joseph McMillan [was] sworn, and deponed that: “The horse now in dispute left us at the Pembina Mountain last summer. We could not catch him at that time. The horse was worth about £25. After I came back, and88 the horse had been a long time89 kept in & fed, I bought it for £15 – and an ox. Defendt. said he had only used him in a cart with passengers.” Louis Hoggue [was] sworn, and deponed that: “Wm. Sharp brought the horse to my place, and said: ‘Here is your brother’s horse.’ I told him to take him to my brother. He said the horse had worked all the way from St, Paul’s to here.” Wm. McMillan Senr. [was] sworn, and deponed that he knew the horse to be a good buffalo runner, and that he was, before going to St. Paul’s, worth £20 or more. The horse was very poor and lean on his return from St. Paul’s, and he, Deponent, would not have given more than £5 for him. Had the horse been his, he would consider 10 or 15£ to be little enough for the damage the horse had sustained. For the Defence: John Taylor [was] sworn, and deponed that he saw the horse after he arrived. “He was thin when I saw him. They were shoeing him, after which they put him in a cariole, and went off. He looked like a horse worth £15. It might be in the month of December that I saw the horse in the cariole.” Verdict for Plaintiff (Thomas Hoggue): Costs: Jury 4 Witnesses 41 miles Mileage Summons Mileage 10 days:

£5.00.00 £1.10.00 1.04.00 06.10 03.06 01.00 £3.05.04

3.05.04 £8.05.04 90

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509

[C]108

Henry McKenney versus Geo. Stevenson [Case 336b] 91 [Debt: £7.09.01]

Constable sworn, Plaintiff do. [Default] Judgt. for Plaintiff: Debt: £7.09.01 Costs: 04.04 10 days: £7.13.05

The Second day of Sitting: 22 nd May, 92 1867 John McKay versus Richd. Bailey [Case 352] Debt: £6.00.00 [For Incomplete Fulfilment of Employment Contract] This case was referred to the Bench for arbitration.93 It appeared that the Defendant had engaged to the Plaintiff from November till the month of June at £3 pr. month, with the understanding that he should be allowed to haul his hay, and to haul fuel for his mother, and to put in the ground one bushel of wheat. Plaintiff on this contract advanced to the Defendant a mare [of] £8.00.00 [value]; half [a] bag of pemmican, £1; half moose skin, 8/; in cash, £2.05.00; tobacco 7/ – making £12 – and states he, Defendt., only worked 2 months. The Court, after much deliberation, gave Judgement for the Plaintiff: £3.17.06 Costs: 06.03 10 days: £4.03.09

Alexander Paul vs. Antoine Vandale [Case 353] Debt: [£7.11.08] [Default (?) Judgment:] A Bill: £7.11.08 By Cash Paid: 2.05.00 £5.06.08 Costs: 13.06 10 days to pay: £6.00.02

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[C]10994

F. E. Kew versus John Schultz [Case 354a] 95 Debt: £283.14.06½ Judgement for Plaintiff, the Judgement being the unpaid balce. and interest on a joint and several Promissory Note due 27th June 1865. 10 days [to pay] 96

G. Dahl versus Alexr. Dahl [Case 355]

Damages and Trespass [Contested Division of Intestate Estate] Alexander Dahl,97 sworn, [deponed] that his father gave him 3 chains frontg. of land on the lower side of his lot, “and my brother George, the Plaintiff, built a barn on the upper side of my father’s lot. And, subsequently, he built a dwelling house close to my father’s old house on my father’s lot. My father died intestate and I – being the oldest child – I took out Letters of Administration. And in conjuction with my brother, the Pltf., we appointed two persons to share the property into three equal shares between us: that is one share for myself, one for George, and one for the children of my deceased brother William. The Plaintiff appointed Mr. W. R. Smith, & I appointed my uncle, Mr. D. Murray, and [they] divided the property & lands then & there, and each one got their full share & was content.” [C]110 Robt. Massy, sworn, [deponed] that he had applied to the deceased Peter Dahl to purchase a lot on the et. side of Red River, and was referred by him to his son, the Plaintiff in this case. W. R. Smith,98 sworn, [deponed] that he remembers that the deceased Peter Dahl referred him to his son, the Plaintf., to give the account of his stock.*99 I was also chosen to separate the estate, and I and Mr. D. Murray did make a fair division of the same into three equal shares, and gave a written paper of the various articles divided to each party. The land we divided by [chance] lot, each drawing his lot; and all parties seemed satisfied. Neil Henderson, sworn, [deponed] that he heard the deceased Peter Dahl say that all he had belonged to George, the Plaintiff.

General Quarterly Court of Assiniboia Records, 1866–69

511

Verdict for Defendt., with Costs: 5/

Henry McKenney versus James Mulligan [Case 356] Debt: £100.00.00 [&] Damages: [£]50.00.00 Judgement given [by default?] for £100.00.00100 [&] Costs [of] [£]2.01.00 10 days [to pay].

George Racette versus Alexr. Sutherland [Case 357] Damages: £140.00.00 A. G. B. Bannatyne, sworn, [deponed] that the parties in this case came to him to draw up an agreement between them of a kind of copartnership.101 “I wished to prevent them, but they pressed me, & I drew up a paper [C]111 in the following manner: (he here read the arrangement), but this paper has not been signed. I did not understand that they were bound by this arrangement unless they both signed. I heard Sutherland say he would come in back at Christmas. I did not understand how the goods were to be disposed of. Nor do I know how much Cadot was paid. Joseph Cadot, sworn, [deponed] that when Plaintiff went off after the Indians to trade he told him he would be off 2 days. He brought back 2 horses, a wolf skin, 2 bladders of grease. There was a parchment in the cart. There was 2 robes, 20 rats, dd. [sic] skin. This is all he brought back for £20.03.07. Verdict for Plaintiff:102 Damages: £5.00.00 Costs: 2.14.00 £7.14.00

Henry Joachim vs. R. D. Campbel [Case 358] [Debt: £21.19.02] Case by Default, Judgement for £22.12.08: Debt: £21.19.02 Costs: 13.06 £22.12.08

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Lyons, Higgins & Coy. vs. John Sayer [Case 359] [Debt: £13.13.01] [Default (?) Judgment:] Debt: £13.13.01 04.10 Costs paid by Pltf.103 £13.17.11 Case referred.104

23 May 1867: Third day of sitting Alexander Cammeron vs. William Bunn [Case 360] Debt: £28.10.00 [C]112 A letter from John Taylor was put in and read,105 giving a statement of the grounds on which Plaintiff undertook to bring Defendant, family, &c, &c. from St. Cloud to this Settlement. Alfred Bunn [was] sworn, and deponed that he was in company with his father, the Defendant, and all the rest of the family, from St. Cloud to this place. “We had 5 carts, and there was 8 horses, 5 of which belonged to Plaintf., 2 of our own, and 1 a lost horse belonging to someone in this Settlement. The Plaintf. brought, in the carts, for himself or others, some molasses, carbon oil, and other articles. There might have been 500 lbs. weight. We messed altogether, and Plaintf. partook of our provisions, and my sister cooked for the whole of us. He brought 2 of our horses for us to St. Cloud, and these 2 horses were continually [harnessed] in the carts till we came here. One of our horses got knocked up by being continually harnessed. He, the Plaintf., took 2 persons across from here on his outgoing, and got (as he told me) £10. The horses were very poor – ie. his horses. He never supplied us with anything. Heard my father say he had offered to pay Plaintf. after [sic] the rate of 700 lbs. We had half a bag of pemmican, and some flour. We never got any blanket, but we got a saddle cloth. Verdict for Plaintiff for: Costs of Suit: Settled:106

£8.18.00 1.00.03 £9.18.03

Andrew McDermot vs. Charles Garratt [Case 361] 107 Damages: £50

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For Maliciously & Wilfully Attempting to Destroy108 Plaintf’s Water Mill Dam [C]113 William Bremner [was] sworn, and deponed that on the 13th April109 he passed the Sturgeon Creek bridge, and saw the dam of Mr. McDermot broke. “I saw it on the same week the current was one foot over this side (the lower side) of the dam. (I only think these might have been the dimensions). I never heard Mr. Garratt say that he would injure Mr. McDermot. Heard him say he paid £20 (but am not sure). I know the length of the bridge.” Remembers the water higher than usual, and that the dam was broke to the water – remembers that the end of the stones reached the bank. Does not remember that the stones were laid without mortar. “The dam is broke about 15 or 20 feet. To put up the work in a short time I suppose would cost a great deal.” Adam Klyne [was] sworn, and deponed that [missing words] the bridge. “And the first time I saw the Defendant he said that he had removed some of the stones from the top of the dam with a plank to save the bridge. He then took me to his stable. I asked why [he] had not built it on higher ground. He replied, ‘I would not accept higher ground for it.’ When they were building the dam Defendt. made a mark on the bridge, and assured the Pltf. that he could build the dam to that height, without the water hurting the bridge. And the dam was built 2 feet below this mark. I saw (previous[ly]) Deft. in the mill house, lying on his belly on the floor. He looked down and saw me. Plaintiff has lost a great quantity of wood at the mill, and Deft. had taken a measure. He, Deponent, considered the Pltf. had incurred considerable expence. [C]114 The foundation of the dam is at present as strong as when first built. The Pltf. intended to begin at the mill early this spring. I also found a plank, the end of which appeared much shattered, as if by knocking some hard substance. All which is truth, &c, &c.” Robert Tait [was] sworn, and deponed that he heard the Defendt. say law gave him authority to remove anything that endangered public property. He further said he had pushed down the stones to save the bridge, and from his (Defdt’s) statement that it was so. “I think it would cost me £25 to repair the damage. The bridge is not damaged. My recollection is to this effect:110 that you (Deft.) would be justified in removing any nuisance.111 All which is truth, &c, &c.” Baptiste Klyne [was] sworn, & deponed that he, on the 12th or 13th April, was at the Sturgeon Creek bridge, and saw the water rushing about 2 feet above the stones. The wall of the dam is about 6 feet high. Does not know if Deft. bought the land he occupies from the Plaintf. Deft. said he

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had paid £10 for it. “The gate of dam is still strong. A large stone was against the gate, & it was pushed aside. This stone was under the water. I do not know how it was removed. There is no side current. I know that the underpart of the dam wall was built with mortar. The stone wall of the dam was broke about 2 feet at the back of the creek. The bank was still good. I do not think the current removed the stones; they were removed from the top. All which is truth, &c, &c.” [C]115 Louis Hoggue [was] sworn, & deponed that he saw Defendt. working with a pole on the dam removing, stones from it. “[I] thought he was breaking up the dam. Defendt. said he was breaking the dam to save the bridge. The dam appeared strong. Did not see any ice on the creek – the water was running. Deft. told me he was removing loose stones – pulling them to one side. All which &c, &c.” James McKay [was] sworn, and deponed that he had not passed over before, but after the stones were removed. The dam was broke near the bank. “[I] went up to examine the bridge. Deft. said the bridge had given way last night. Got a note from Deft., and met him. He said he had been obliged to throw away more stones to save the bridge. I do not think that by breaking down the dam was the way to save the bridge. The big stone at the gate was not moved either by ice or water. All which is truth, &c, &c.” Defence: Charles Curtis [was] sworn, & deponed that he was on the dam the day after the creek burst. “I was with the Defendt – saw the ice coming down – and we thought that the dam, by stopping the fall of the water, endangered the bridge. The fall of water was great, but how many feet could not say. The damage done might be estimated by the number of stones down, and might be 20 in number. It was Mr. Murray that [sentence incomplete]. There was a large sheet of ice resting on the big stone – pressing & crushing – while we were passing on the plank, & we felt [C]116 as if something had given way. And then about 8 feet of earth fell in. The water was much discoloured. Thought that by throwing down some of the stones it would save the bridge indirectly, as also the bank, as the current set in towards the bank.” Does not know of any particular reason why he went there – only know that he went there of his own free will. “All which is truth, &c, &c.” Alexander Murray [was] sworn, & deponed that he was on the Sturgeon Creek mill dam on Sunday the 14, “a part of which I thought was broke. I felt the crash, and got on the bridge. I was in company with the

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former witness and Defendt. when this occurred. The current strikes angleways. The dam was broke from above & below the dam – I made this remark when I first saw a semi-circle of 25 feet diameter undermined. I saw the stones, & saw Deft. remove some stones that had never been placed there by human hands. I think, on my oath, the bridge would have been down were these stones removed by Deft. not [to] have been displaced. All which is truth, &c, &c.” Roger Goulet had been sent by the Court to survey the lot occupied by C. Garratt, the Defendt.; and stated that according to Defendt’s title deeds there was not land enough at the place to admit the admeasurement marked in the deeds.112 [C]117 Verdict for Plaintiff for £12.00.00 [&] Costs: [£]4.06.04.

Robert Tait versus Fallerdeau Ducharme [Case 362] [Debt: £7.08.00] [Default (?) Judgment:] Debt: £7.08.00 Costs: 13.06 10 days: £8.01.06

W. R. Smith, C.C. 113 versus Charles Garratt [Case 363] For a License Due: £15.00.00 Verdict for Plaintiff: Costs: 10 days:

£15.00.00 13.06 £15.13.06

George Racette versus Brian Devlin [Case 331b] 114 Damages for an Assault: £500.00.00 Duncan McDougal [was] sworn, & deponed that, about 3 or 4 years ago, one evening he and Genvienne, sitting at Deponent’s door, heard the Plaintf. singing as he was passing along. Heard Devlin the Defendt call to Plaintf.: ‘Don’t come near or I will blow your brains out.’ Plaintf. then said:

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‘Let me get my horse.’ Deponent then heard a cap115 explode, & the voice of Deft. call out: ‘By the eternal God, if you advance I will shoot you.’ ¶ “I ran towards Devlin’s. When I got near the fencing saw a gun barrel in the hands of Pltf. Deft. was sitting, & his wife & son were bathing and dressing his wounds. Pltf. returned with the gun barrel in his hands. There was 2 or 3 gentlemen from the Fort. I persuaded Pltf. to go off. Jervais tried to get the gun barrel from him. One of [the] gentlemen asked him for it, and he gave it to him. Pltf. had a cut or bruised [missing word], [C]118 but whether of sufficient consequence to prevent his accomplishing his intended trip [I] cannot say.” Margaret Clair [was] sworn, & deponed that Pltf. came from the opposite side of the river, singing as he came. “He went towards Defendt’s. Deft. called out to him not to come too nigh. Pltf. said ‘Let me take my cart’ & walked on, but Deft. said ‘Keep off’ or,116 by the Eternal G-d,’ he would blow out his brains. After Pltf had fired off the cap of the gun he rushed at Deft., and struck him with it, and then broke it on the fence. I was standing at McDougal[’s] house. All which is truth, &c, &c.” Defence: Mr. A. McKenzie [was] sworn, & deponed that he saw a gun barrel in the hands of Plaintiff, but does not know whose gun barrel it was. “All which is truth, &c.” Baptiste Barrard [was] sworn, & deponed that Pltf. & Deft. had fought about 4 years ago. Saw Pltf. at the Fort with his hand in a sling. “I asked how he came by his hurt. He said ‘You see how I am. I could not continue my trip.’117 I believe it was the same year that he fought with Deft., but am not sure. All which is truth, &c, &c.” Dr. Cowan 118 [was] sworn, & deponed. Upon a question being put to him as to the state of the hand of Pltf. when shewn to him, [he] said that it was impossible for him to state as to any particulars concerning the hand of the Pltf. All knew that Pltf. had come to him with a wounded hand, & that Devlin had also come to him, but after the lapse of time he could say nothing of any consequence as to the present case. “All which is truth, &c, &c.” [C]119 Magnus Linklater [was] sworn, & deponed that [he] had some recollection about a quarrel between Deft. & Plaintf., but [the] reason why they quarrelled [he] knows nothing about it. Remembers something about

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a gun barrel. “I know not if it belonged to you or Deft. All which is truth, &c, &c.” Mr. LaRock [was] sworn, and deponed that [he] remembered nothing about this time. “I was not there, neither the night before nor a year after. All which is truth, &c, &c.” Verdict for Defendant: 5 days [for Plaintiff] to pay [Costs of] £1.06.00

George Rascette versus Thomas Harris [Case 364] 119 Mr. Bourstick swore that he had come down on the steamboat, and had brought a letter to Defendant stating that his child was dying.120 The case deferred. [C]120

General Quarterly Court, held August 15 th, 1867 The Queen versus George Rascette [Case 365] Misdemeanor [Trashing of and Theft from Ferry Terminal] William Sutherland, sworn, [deponed] that he was ferryman at the Forks of Red River. “I was absent on that night for a while, and on my return [I found] the rope cut, the tent down, [and] the cash box iron hinges and lock [forced – the box previously] containing about £8.10.00. I found 4 or 5£ there of paper money. The remainder, I cannot say where it is. There was about 8/ of coppers, which I have never found. There was also 4/6 worth of pemmican, 2/6 worth of flour, a robe lined with red flannel damaged, & 2/ worth of tobacco. The property altogether was worth £4.04.00.” All which was truth, as he should answer to God. Duncan McDougald, sworn, [deponed] that he knew nothing of the affair, except that the Prisoner came to his house and asked him to cross him [over the river] and: “My son crossed him. He was a long time calling – 3 times – at us. All which is truth, &c, &c.” Mr. Alexr. Mathison [was] sworn, and [deponed that] all that he knew of the case was that at about the hour of 9 or 10 o’clk. he heard the Prisoner calling. All which was truth, &c, &c.

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Peter Harkness [was] sworn, & deponed: “When I came to the ferry I asked who had pulled down the ferry tent, and the Prisoner said it was him. It was then 10 o’clock.” All which was truth, &c, &c. [C]121 Louison, dit Bonnhomme, 121 Ploofe [was] sworn, & deponed that he knew nothing but what the Prisoner told him when he came to the ferry. Heard him speaking loud. I heard him again next morning, and I saw the ferryman gathering and seeking for his property. All which is truth.” Defence: Prisoner stated that he had come to the ferry, and called for the ferryman until he was tired, & became angry & excited that he was detained so long. Charles Nolin [was] sworn, & deponed that he knew nothing of the affair of the night before, but: “The next morning, at 7 o’clock, I was calling on one side of the river, and the Prisoner on the other. I baled out the scow and crossed by myself, and on second trip the ferryman came. All which is truth, &c, &c.” Verdict: Guilty and Sentenced to pay the fine of £3 in 5 days

George Rascette versus Ambroise Grandbois [Case 366] £10 Damages for Taking his Mare Narcise Amlin [was] sworn, & deponed that he knew the mare, and last fall saw it, and claimed it. “I tried to make some arrangement with him to take it away, but he said that he could not leave yet – ‘but if you come on, and when we come near the ville you shall get her.’ But when I went to ask Defendant what he had done with the mare, he said he had taken [C]122 her, and would not give her up. I have never seen her since that time. All which, &c.” Josette Laroch [was] sworn, and deponed that: “When the last witness went and asked for the mare, when he found he could not arrange with him, they came to this arrangement: that if he would lend him the mare to Pembina, and if he would wait till he got 1½ [sic] animals, he would then start at once. I know the young man came back with the mare.” Defence:

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Norbert Larance, sworn, deponed: “& we watched the mare after the arrangement had been made between the parties, and saw the young man – that he went & took the mare. I saw Grandbois do it.” Verdict for Plaintiff: Costs:

£10.00.00 1.19.06 £11.19.06

Jean Magher versus Jean Carran [Case 367] Debt: £5.17.07½ By Default:

Plaintiff sworn to his Accts. Constable sworn to the delivery of Sums. Debt: Costs:

£5.17.07 ½ 13.10 £6.11.05 ½ [C]123

The Second Day’s Sitting: the 16 th August, 1867 Louis Thebault [&] Louis Rochleau [versus] 122 Boats Crew[s] [Case 368] 123

Against the Defendant Guides & Steersmen for Damages sustained by the boats returning from Norway House without proceeding to York Factory to where they were consigned by Plaintiff[s] The crew of the first boat were as follows: Pierre Vermette (including his share of damages 30£ by the verdict as per acct.: 30£ divided equally): Costs: 03.10 Debt: 10.08.01 124 Damg.: 5.00.00 Costs: 08.10 125 £16.00.09 126 £16.00.09 Joseph Flammond David Versaille Thomas Flammond Alexis Courchène

14.06.06 11.07.00 11.02.00 11.04.08

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Joseph Laurence Pascal Parisienne (This man exempt from Damg. – only Debt & Costs)

11.00.11 2.19.01

2nd boat as follows: Louison Plante (including his share of damages 30£ divided equally) François Bereau Jeremie Cardinal (Default – not in the Settlement) François Ouelette Pierre Pillon Moyse Duchèn (Not in the District – Default)

£12.02.00 5.14.10 5.15.10 5.10.00 11.02.04 5.05.00

Verdict as above by the two Juries: £35127 & £30 to each boat. Commentary The original record of this unusual case is very confusing, in that it does not clearly indicate who sued whom. The entire style of cause, if that is what it was intended to be, reads, “Louis Thebeault, Louis Rochleau, & others of his [sic] Boat’s Crew,” with no explicit reference to named defendants or other named plaintiffs. In the space that usually contains a brief description of the nature of the claim appears this statement: “First boat against the Defendant Guides and Steersmen for damages sustained.” Those words might be construed as meaning that this was a claim by rank and file crew members against whoever cut their journey short. Other internal evidence, however – the debt assessments, which could only be for repayment of advances to individual tripmen; the indication that the awards affecting two crew members were default judgments because those men were away from the settlement; and the absence of any specified amounts for the named plaintiffs – makes it clear that the boat crew members were defendants, not plaintiffs. The indicated editorial excisions and additions have been made in conformity with that conclusion. Water levels being low in the summer of 1867, these two boat crews – along, no doubt, with many others – refused to attempt the never easy passage from Norway House to York Factory and back. When they returned to Red River, their employers128 took the apparently unprecedented step of suing each crew member – not just the guides and steersmen – in the General Quarterly Court for both repayment of advances made to them before the trip and damages for the financial losses their employers sustained by reason of not reaching York Factory that summer. The court’s substantial awards against these thirteen men must have come as a shock to the community. The significance of that shock is suggested by a passing comment in the the Nor’Wester of 21 September 1867, less than a month after this case was decided: “We have not heard of any legal proceedings having been instituted against the tripmen

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who refused to proceed to York for the Company. We presume that that august corporation129 fear their inability to procure voyageurs for the coming season if too hard on the defaulters of this year.” While private operators Thebeault and Rochleau chose to sue their mutineering crews, the HBC was unwilling to risk public outrage by taking its men to court over the work stoppage. The company’s final appearance in the General Court as plaintiff had been in May 1861.130

Alexander Sutherland versus Amable Marion [Case 369] A Note of Hand for £87.09.00 Alexander Sutherland Junr. [was] sworn, and deponed that he saw the Defendant write the note for £40 – and his [C]124 brother (or stepbrother), although at the place, was not near while the Defendant wrote it. All which is truth, &c, &c. Frank Jervais [was] sworn, & deponed that the bargain for the merchandise sold to Defendant were to be at Red River prices – which he did not do, but charged them at a high rate. All which is truth, &c. George Racette [was] sworn, & deponed that he had bought rum from Plaintiff at 16/ pr. gall. All which is truth, &c, &c. James McKay [was] sworn, and deponed that he had seen the accounts from Plaintf. to Defendt.131 but did not find his accts. quite correct. “I told the Plaintf. that if he would reduce his acct. to £60 (ie: £30 in June and £30 some other time which they might settle between themselves) he would settle on these terms, and be done with it. All which is truth, &c, &c.” Verdict for Plaintiff:132 Note: £87.09.00 Costs: 1.13.06 £89.02.06

[In the Matter of the Intestacy of John James Alexander Rowand] [Case 370a] 133 Note this day the Application of His Lordship of St. Boniface and James McKay Esqre. to be appointed to be Administrators of John James Alexander Rowand over the property in the District of Assiniboia. The application was concurred in by the widow, the mother of the minor. W. R. Smith C.C.134

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Commentary Until recently, the governor of Assiniboia had been responsible, under the Laws of Assiniboia, for issuing the power to administer the estates of those who died without wills.135 The legal right of local laws enacted under the authority of the HBC charter to empower the governor to exercise that function was cautiously confirmed by London barrister Montague Bere in a legal opinion for the company dated 19 March 1866.136 Bere had also been asked whether an Assiniboia “Court of Probate” could be created to perform such tasks, and he had said it would be possible. In November 1866 the Council of Assiniboia, apparently reluctant to go so far as creating a distinct court, decided to transfer the responsibility for intestate estates to the existing General Court. Governor McTavish pointed out that this would only amount to placing such matters “on a similar basis to that lately established for the issuing of Letters of Guardianship,”137 and the council accordingly enacted that the court could issue letters of administration on the basis of applications filed at the court session prior to that at which the letters would be issued.138 [C]125

General Quarterly Court, 21 st November, 1867 John Higgins vs. Bazil Malaterre [Case 371] Debt: Costs:

£6.11.00 19.06 £7.10.06

Case referred [to arbitration?]

Thomas Lusted versus John Bourk [Case 372] An Appeal from Petty Court. Damages: £8.00.00 [Unpaid Transportation Charges] Petty Court case was [a dismissed claim that] the Plaintiff refused to pay the balance, amounting to £4, due on his contract. The present suit is for £8.00.00.139 Robert Tait [was] sworn, and deponed that he was present at the bargain to bring Mr. Lusted, &c, &c, across [to Red River from the United States], which was as follows: He, Defendt. [missing words] through for £10, & he was to be furnished with kettles. Pltf. was to pay him £10 and any extra freight. “I heard nothing about the yoking of the horse. All which is truth, &c, &c.”

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William Hallette [was] sworn, & deponed that he had come through with the parties last summer. “I know nothing of the bargain. Saw Pltf. in a light waggon part of the way. The waggon & carts were blown over. After the storm a covered cart was given them. I heard Defendt. tell Pltf.: ‘If you can find anyone to convey you through I will return your money.’ He furnished a tent, and led the horse in bad places. All which is truth, &c, &c.” Henry Cook [was] sworn, & deponed that he remembered [C]126 Defendt’s offer to give him back his money. “I and last witness were at our encampment one night, [and] heard the parties quarrelling about a covering for the waggon. Heard Mr. Bourk say: ‘Don’t vex me, or I will soon let you see what kind of man you are.’ Mr. Lusted was down out of the cart at the time. The Pltf. was a quiet good little man. I never heard of any bickering – only about the waggon covg. And Mr. Lusted, as he told me, strongly objected to changing the waggon for the cart. Did not see Pltf. go to Deft. to state his objection as to regarding the change from waggon to cart. All which is truth, &c, &c.” James Stewart [was] sworn, & deponed that he came part of the way with the party. “I was there when the waggon transfer was made. I also remember my wife giving some hot water – also that Pltf. refused to give him a note for the balce. he was due the Deft. I also recollect that Deft. got a cart from Alexr. Cammeron. All which is truth, &c, &c.” John Klyne [was] sworn, & deponed that at a certain place the horse Pltf. had was following, when he, Plaintf., checked the horse rather violently, and the Deft. rebuked him and pushed him to one side – but did not strike him. Defence: Alexander Cammeron [was] sworn, & deponed that he knew he lent a cart for the accommodation of the Pltf. and his family – and got freight for it. “I did not hear any objections to it, and I think the cart was best. I heard Deft. say at Georgetown: ‘I will give you [C]127 back your money if you can get through with any one else.’ All which is truth, &c, &c.” Angus Morison [was] sworn, & deponed that all the time he was with the parties Deft. was very kind to Mrs. Lusted. All which is truth, &c, &c. James Stewart recalled: “I heard Pltf. say that he would not pay Defendant.” Verdict for Defendant: 19th August, 67 Petty Court: £4.00.00

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Costs:

1.02.06 5.02.06 3.08.08 £8.11.02

Present Court Costs:

Robert Tait vs. Alphonse Bernabé [Case 373] Debt: Costs:

£23.13.6 13.6 £24.07.0

Case by Default: Decision for Plaintiff – Judgt. for the above sum.

W. G. Fonseca vs. Norbert Nolin [Case 374] Debt: Costs:

£11.17.09 ½ 13.06 £12.11.03 140

Judgt. for the above sum for Plaintiff – by Default

W. G. Fonseca vs. Joseph Nolin [Case 375] Debt: Costs:

£11.13.09 13.09 12.07.06

Judgt. for Plaintf. for the above sum – case by default. [C]128

Second Day’s Sitting, 22 nd November, 1867 Henry McKenney versus William Drever & Augustin Gaudrie [Case 376] 141 Action of Ejectment142 Roger Goulet,143 Surveyor: A plan was shewn, and acknowledged as the plan he had drawn up by himself of the Lots nos. 241 & 242. “On surveying Lot 241 [I] saw a house on said lot, and the wife of one of the Defendants and some children at the house door. [I] could not say if Goudrie was in possession. I surveyed Lot 241. Mr. McKenny employed me to survey this lot. [I] found one chain more on Lot 242 than the Company’s Register has

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recorded. I saw pickets, and told Mr. McKenny I surveyed these lots to ascertain on which lot the house was upon.” At that time Goudrie’s family told him that he lived there by the permission of Mr. Drever. All which is truth, as he should answer to God. François Bouvette [was] sworn, & deponed that he knew Stephen Green’s house and lot – the house is on the lot adjoining. “I know that Goudrie has been there in the house since early in August. I think that five shillings rent per month was enough. I was in the house about 2 weeks by permission from Mr. Drever. No one gave me orders to take the stove; I knew it belonged to Mr. McKenney. I was in the house about 2 weeks, and John Bakie was there about a year.” All which was truth, &c, &c. [C]129 John Bakie [was] sworn, & deponed that he knew Bouvette’s place, and lived there for some time. “I was living there last June. I left my wife in the house, and went to visit; and on my return found the house occupied by Bouvette. I had locked the door, and have the key of it yet. All which is truth, &c, &c.” Mr. J .H. McTavish 144 [was] sworn, and deponed that it was not always necessary that both parties should be present at a transfer of land, for: “Were I certain that Gasden was alive I would again transfer the land. Lot 241 was in the name of Amable D’Neault, transferred to Josh. Gasden 8th May, ’66. Lot 242 transferred to S. Green. D’Neault made no remark about the lot. There is no other land to the name of Gasden but these lots in the Register. All which is truth, &c, &c.”145 A. G. B. Bannatyne [was] sworn, and deponed that Gasden had offered him the lots now in contention as a free gift; and to get rid of him [Bannatyne] drew up a paper to that effect, but set no value on it. (A paper was shewn to Deponent and he replied he believed he had seen that paper before.) W. R. Smith [was] sworn, & deponed that he has seen that paper (shewn to last Witness) before, but is not sure. All which is truth, &c. Verdict for Defendant: the land is his.

John Schultz vs. Pierre Dumais [Case 377] 146 Debt: £45.00.00; Damages: £26.10.05; & a Bill signed by Defendt. for £18.09.07

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[Default?] Judgment for: £18.09.07 Costs: 19.06 £19.09.01 And both parties are bound to appear at next Court without further summonses.147 [C]130

Third Day’s Sitting, November 23 rd, 1867 Paul Laronde vs. James McKay [Case 378] For the Recovery of a Gun Mr. Bannatyne stated that Lord Milton left the gun in possession of Plaintiff.148 The Defendant first asked the lend of it, and finally got it, stating that he would purchase it. He, Defendt., agreed to pay the price of the gun to Plaintiff. Mr. McKay stated that Plaintiff came to him, wishing to sell the gun to him. “I corresponded with Plaintf. concerning the gun. I came to understand that the gun was the property of Lord Milton. I wrote to my agent in London to enquire of Ld. Milton if he would sell the gun, and if he, Milton, would not, to send me one like it. In the meantime I got the gun from the Pltf. with the promise to pay £28 for [it] if my agent did not send me one. After this, I received a letter from Lord Milton to keep the gun in my possession, and not pay for it, as the Plaintiff was heavily indebted to him. Judgment: that the gun remains in possession of Mr. McKay.

Moyes Duchene vs. François Savage [Case 379] For the Recovery of an Ox Benjamine Neault [was] sworn, & deponed that he knew the ox, and that the cow – the mother of the calf – were [sic] at his place during three years. “I cut him when about 1 year old. I cut this hair off from his tail. It was a black ox. It is now 3 yr. old, rising 4. And all the marks on the ox are the same as now to be found on him.” [C]131 François Laroque [was] sworn, & deponed that he saw this ox when a calf, and it used to suck his cow. “I marked it on the right ear. The

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ear had been cut a little before. I cut it straight. The calf was then 2 yrs. old. All which is truth, &c, &c.” Daniel La Rivée [was] sworn, & deponed that this ox came to their place & remained some time. And one day the Pltf. came and claimed it. “I told him to give me the marks, and the marks corresponded. All which is truth, &c, &c.” Pierre Pepin [was] sworn, & deponed that he went along with Pltf. to hear what was said. And the Defendants said they had taken “an” or “the” ox – not sure which. Defence: André Robbilliard [was] sworn, & deponed that he had cut this calf when it was about 2 or 2½ mths. old. There were 4 white marks: 1 on the belly behind the navel, & 1 in the flank, [and on] the 2 hind legs – one more than the other. On throwing down the ox when about to cut him, a piece of bois bleu entered into the side near the rising – the stick ran in, I think, about 4 inches. When 2 year old [I] saw it again. I[t] has one drooping [missing word: eye? ear?] – on the right side. François Allemand [was] sworn, & deponed that ox stayed at their place till 2 yrs. old, & that it is now 3 rising 4. Michell Dumand [was] sworn, & deponed that he got a letter from Pembina from Deft., ordering him to take the ox, but he did not. Corroborated the last witness, & stated the ox was calved on New Yrs. Day, & would be 4 years next New Year’s Day. The Jury examined the ox, and brought in a verdict for Defendt. Expences Equally Divided.149 [C]132

General Quarterly Court, held 20 th February, 1868 150 William Bunn vs. James Bird [Case 380] Debt: Costs:

£26.04.04 13.06 £26.17.10

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Defendt . stated that the Acct. was correct. Judgement for the sum. [Marginal note:] 1872, 8 July: Execution Issued151 For: $164.45 Interest from 20 Feb. 1868: 5.46 169.91 [illegible] fee: 5.00 [illegible] fee: 2.00 $176.91

William Bunn vs. Thomas Hope [Case 381] Debt: Costs:

£6.05.04 13.06

Costs returned [to Plaintiff] Defendt. not being in the District, ordered to be served with a summons for next Court.152

Mrs. Mary Gowler vs. Chas. Curtis [Case 382] Debt: £23.12.03 Costs: Paid [by Defendant] Promised to pay in 60 days. Judgement according to promise.

F. C. Mercer vs. Narcise Marion [Case 383] Debt: Costs:

£6.06.00 1.11.00 £7.17.00

This case the Deft . denied owing anything, and disputed his liability.

Plaintf . pleaded the minority [of] Defendt. & sued his father.153 Revd. Henry Cochrane & W. B. Hall vs. Charles Garratt [Case 384] Debt: Costs:

£22.07.10 14.00 £23.01.10

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Promises to pay in 60 days. Judgt. according to promise.

William Drever vs. Modest Larjumonier [Case 385] Debt: Costs:

12.09.00 13.06 £13.02.06

An ox in part payment [worth] £7 paid [to] Pltf. Judgement for: Costs:

£5.09.00 13.06 £6.02.06

Jean Magher vs. Pierre Dumet [Case 386] Debt: Costs: Judgt. for Plaintiff:

£10.00.09 ½ 1.10.08 £11.11.05 ½

Frederick C. Mercer vs. Joseph Nolin [Case 387a] 154 Damages: Costs:

£64.14.10 2.02.06 £66.17.04

Judgt. for Plaintiff, he having sworn that his acts. [C]133 presented in this case before the Court were perfectly correct. Case went by Default.

Mrs. Mary Gowler vs. William Logan [Case 388] Debt: Costs: Judgement for Plaintiff:

£5.04.08 13.06 £5.18.02

[C]134

General Quarterly Court Held on the 19 th, 20 th, 21 st, 23 rd, 24 th & 25 th days of May, 1868 Criminal Cases:

The Queen versus John Thomson [Case 389]

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For Stealing of a Revolver The Prisoner pleaded Guilty to the Bill of Information and was sentenced to “two months’ imprisonment from this date.”

The Queen versus Ogibbeway (an Indian) [Case 390] For Stealing a Coat from the Dwelling House of John Byers also a Gun & other property from Thomas Spence’s premises to the Value of £40 or 50 value The Prisoner did not deny these charges. He was therefore sentenced to “one year’s imprisonment from this 25th day of May, 1868.”

The Queen versus George Racette [Case 391] For Setting Fire to Brian Devlin’s Haystack155 The case being fully proved by the sworn testimony of a number of witnesses,156 the Prisoner was by the Jury’s verdict of Guilty sentenced to six months’ imprisonment. [C]135 Civil Actions:

F. E. Kew versus John Schultz [Case 354b] 157 Action for £296.06.10 as the balance of a joint and several Promissory Note by Henry McKenney and John Schultz in favor of the Plaintiff [Marginal note:] 3rd Summons of this case. 1st trial Feb. 7, 1867: T. Bunn.158 Henry L. Sabine, a Witness for the Defence, deponed [that he] remembered seeing the Defendant pay to the Plaintiff a sum of £275. Was a Clerk to the Defendant, and [was] keeping his store at the time. The Deponent handed the money to the Defendant, and the Defendant paid it to the Plaintiff. It was either the day the Plaintiff left the Settlement, or the day before. The Plaintiff said it was to be kept quiet, and that it was paid on the debt, but not to be marked on the note. Saw no receipt granted for the £275. Questioned by the Court: “What debt?” Answer: “The debt the note was granted for.”

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[Questioned] by the Plaintiff: “What Note?” “That Note,” pointing to the promissory note produced. [Questioned] by the Court: “Did you then know that this note had been given?” “I presumed it had, from what was said.”159 Re-examined by the Court, the Deponent clearly understood from what was said that the £275 was paid on account of the debt for which the note was granted, but was to be kept quiet. Verdict for the Plaintiff for £21.06.10 and costs. Judgment given accordingly. Commentary It will be remembered that John Schultz and his half-brother and then partner Henry McKenney had, a few years previously, obtained a large quantity of trade goods from Frederick E. Kew, an English merchant, for which they had given Kew a large joint promissory note. Kew first successfully sued McKenney on the note160 and then obtained a default judgment against Schultz (who was temporarily absent from the settlement) as well.161 By the time of those actions, the partnership had been dissolved, and enmity prevailed between the brothers. The court’s default decision against Schultz had dramatic ramifications. Upon his return to Red River, Schultz applied for a new trial, but was refused by Recorder Black on the ground that sufficient reasons for a rehearing had not been offered. Schultz refused, nevertheless, to pay anything in satisfaction of the judgment, and Kew’s agent, John Inkster, eventually called upon McKenney, in his capacity as sheriff, to enforce payment. Schultz would later claim that McKenney had a conflicting personal interest in doing so because, he said, McKenney had paid Kew in full, and anything he collected from Schultz would therefore end up in his own pocket. That dubious claim would never be proved or disproved. At any rate, the sheriff did proceed firmly against his former partner. J.J. Hargrave tells the story: On the morning of Friday, 17th January, 1868, Mr. Sheriff McKenney, accompanied by two constables, proceeded to the store of Dr. Schultz, with the object of obtaining payment of the debt or putting the Judgment in force ... A formal demand was ... made for the amount of the judgment, which was refused, and the Sheriff declared the Doctor’s goods seized in the name of the law, and ordered his satellites to remove them ... The proprietor interposed ... when a scuffle ensued in the course of which, after a series of struggles and confused tumbling, and rolling over the floor and among some bags lying thereon, Schultz was bound as securely as his captors could manage ... and conveyed in a carriole to the prison, whither Mr. Roger Goulet, a justice of the peace, was summoned to hear the Sheriff’s

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complaint of having been assaulted in the discharge of his duty ... Mr. Goulet, finding the charge proven, in default of bail to appear and take his trial at the next General Quarterly Court upon the charge, committed Schultz to prison. Meanwhile, Mr. Constable Mulligan, who had been left in legal custody of the Prisoner’s store, was ordered by Mrs. Schultz to withdraw from the premises. This he, of course, refused to do. Mrs. Schultz forthwith caused all the doors and windows to be barred, and secured with nails and spikes, so as to guard the shop against a fresh entry on the part of the Sheriff ... and detain Mulligan a close prisoner, without food or fire, in the isolated warehouse ...162 Towards one o’clock on the Saturday morning about fifteen persons, among whom was Mrs. Schultz, forcibly entered the prison where Schultz was confined, overpowered the constables on duty, and, breaking open the door leading to his cell, liberated him. This done, the party adjourned along with him to his house, where report says “they made a night of it.”163 No attempt was made to rearrest Schultz,164 who, about two weeks later, audaciously repeated his application for a new trial. This time he announced that he would produce a witness who would refute his liability under the promissory note. Recorder John Black, after consulting with the governor, granted that application on condition that the parties enter into an agreement that they would be conclusively bound by whatever the jury’s decision might be. Schultz and Inkster having so agreed, the current trial ensued. It should be borne in mind in relation to the jury’s acceptance of Sabine’s surprising (not to say suspicious) evidence at this rehearing that the plaintiff was in London at the time of the hearing and that his agent would have known nothing about what might have transpired when Kew was in the settlement in 1865. Kew subsequently applied to have the case reheard yet again in May 1869 (case 354c, [C]167), but neither party appeared at that time, and the case never showed up on the docket again.165 Kew swore an affidavit denying Sabine’s story, however, and went to considerable lengths to inform persons he knew in the settlement of that fact. Although the parties were not in court when case 354c was called, Recorder Black – no friend of Dr Schultz, it will be recalled – ordered the clerk to read Kew’s declaration in open court before moving on. In a remarkable epilogue to the case, Governor McTavish sent Kew full payment of his claim from McTavish’s personal account. His reason for doing so was that, having played a role in persuading Black to grant the new hearing, the governor considered himself to have been “an involuntary instrument in the perpetration of a fraud.”166 [C]136167

F. C. Mercer versus Josh. & Narcisse Marion [Case 392] For a Debt: £6.06.00

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Verdict for Plaintiff: £3.03.00, less Costs of Suit.168 Judgement for Plaintiff: £3.03.00 less Costs 6.10 = £2.16.02

J. F. Putnam versus J. B. Holmes [Case 393] For £36.05.00 Judgement for Plaintiff: £36.05.00 and Costs 13.06 = £36.18.06

A. Ross versus R. Meade [Case 394] Judgement – including Costs: £13.07.04 for Plaintiff

Chas. Garrett versus Petty Court 169 [Case 395] [Appeal – Forfeiture of Liquor Licences] This was an appeal from the Upper District Petty Court, which had found the Appellant Charles Garrett liable to a forfeiture of his distilling and retail liquor license[s]. This Court decided that he should retain his distilling license, but forfeit his retail license. Judgement: Plaintiff is allowed to retain his distilling license but not to retail whiskey, spirits, wine or beer.

Josh. St. Germain versus Anson Gerrold [Case 396] Breach of Liquor Law for Selling Spirits to an Indian Verdict: Guilty. Judgement: that Def. pay a fine of £10.00.00 [C]137

[blank] versus McLean [Case 397] Judgement: for Plaintiff: £11.02.00 and half costs 6/9170 = £11.08.09

C. D. Strong versus Chas. Garrett [Case 398] For [Debt?]: ($461.76) four hundred and sixty one dollars and seventy-six cents

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Judgement: for Plaintiff: £63.09.08171 and Costs 15/ = £64.04.08

C. D. Strong versus J. B. Holmes [Case 399] [Debt?] £21.12.07 Judgment: for Plaintiff: £21.12.07 [&] Costs: 13/6 = £22.06.01

A. G. B. Bannatyne versus Duncan Nolin [Case 400] Debt: £6.05.00 Judgement: for Plaintiff: £6.05.00 [&] Costs 17.02 = £7.02.02

Wm. Drever versus Josh. Ouellette [Case 401] Debt £17.10.00 [Nothing further is recorded concerning this case.]

Pierre Ayot versus J. M. House [Case 402] [Debt?] £9.14.00 Judgement: for Plaintiff: £9.14.00 [&] Costs: £1.13.06 = £11.07.06 [C]138

Maxime La Pine versus J. M. House [Case 403] Debt: £14.00.00 Judgement for Plaintiff, including Costs: £18.09.06

Jean-Baptiste LaPoint and Joseph St. Germain versus Walter R. Bown [Case 404] Damages £300 for Defamation Judgement for Plaintiffs: £2.00.00, with Costs: £2.19.06 = £4.19.06 Commentary Behind this very terse case summary – the consequence of either Court Clerk William Smith’s declining energies as he entered the final year of his life or the inexperience

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of an unidentified temporary clerk – was a bizarre series of events. They began with an entirely private dispute, but quickly escalated to a potentially lethal confrontation between the settlement’s two most volatile populations.172 The jailbreak by which John Schultz had regained his freedom in January 1868173 was represented by the Nor’-Wester – the newspaper Schultz and/or his friend Walter Bown now owned and edited – as having the approval of the majority of Red River’s residents. To demonstrate the falsity of that assertion, a petition deploring the unlawful actions of Schultz’s friends was circulated, and attracted the signatures of 804 settlers, many of whom were French Halfbreeds. The sponsors of the petition then demanded that the Nor’-Wester publish the document. Schultz was out of town when the demand was made, and assistant editor Bown declined to print the petition. The petitioners’ resulting consternation led to a notice being posted on the door of the St Boniface Cathedral calling for protesters to gather at the Nor’-Wester office the following day. Bown sought protection from Governor McTavish, who, on Monday, 27 April 1868, without constabular assistance, intercepted a mob of French Halfbreeds on their way to the newspaper office. The demonstrators told him that their intention was to seize the printing press and incarcerate it in the jail, where it could no longer print falsehoods, and to order Bown to leave the settlement within three days. According to Hargrave, “[T]he Governor ... succeeded, by using his personal influence, in pacifying the crowd.” He did this by persuading both sides to accept a compromise: Bown would print fifty copies of the petition at the demonstrators’ expense, which they could then distribute as they saw fit. On the day agreed upon for delivery of the printed petitions, two of the demonstrators’ leaders, Jean-Baptiste LaPointe and Joseph St Germain, came to the Nor’Wester office to receive them. Bown being not yet on the premises that morning, the shop foreman gave the documents to the men and went in search of Bown. La Pointe and St Germain, anxious to check the accuracy of the printing but unable to read English themselves, carried the documents to the Post Office, where an acquaintance could translate for them. When Bown arrived at the newspaper office, found both the printed documents and the emissaries missing, and learned that payment had not been made, he vociferously denounced La Pointe and St Germain as “thieves” to everyone who would listen. After learning of these accusations, the gentlemen in question wasted no time suing Bown for defamation. Their claim for £300 was exorbitant, of course, and the court awarded the much more appropriate sum of £2 (£1 each) plus costs. Even that modest award was considered unjustifiable by Bown, and he refused to pay. When Constable Mulligan eventually hauled Bown off to jail for nonpayment, his loud, outraged protests evoked considerable sympathy among Schultz Party adherents. Happily, however, no one attempted on this occasion to violate the oft-sullied sanctity of the Red River prison. Instead, Walter Bown was released, after only about an hour in custody, upon payment of the damages award by friend and sympathizer Brian Devlin.174

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General Quarterly Court, August 20 th 1868 Judge Black175

Adolph Debrie versus Urbain Delorme Junr. [Case 405] For the Recovery of a Mare, which Def. purchased from Indians, who had Found it Astray Plaintiff proved the mare to have been left by him in the plains, being too weak to travel further. Judgement: that Plaintiff get the mare, and pay £5.00.00 and Costs: £2.18.06 = £7.18.06

Robert Tait versus Amable Marion [Case 406] Debt: £28.07.00 Judgement: for Plaintiff £28.07.00 [&] Costs: 13.06 = £29.00.06

John Norton versus Walter Gorman [Case 407] Debt: £6.00.00 Judgement: for Defendant; Costs divided: 16.09 each

Walter Gorman versus John Norton [Case 408] Debt: £30.00.00 Judgement: for Plaintiff; Costs divided: 16.09 each

François Gingras versus Antoine Vandalle [Case 409] Debt: £14.16.05 Judgement: for Plaintiff: £14.16.05 [&] Costs: 16.10 = £15.13.03 [C]139176

Widow Quewesenca versus David Pritchard [Case 410] Debt: £12.00.00 for a Mare Judgement: by Default for Plaintiff, with Costs: £12.13.06177

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Henry McKenney versus Albert Peterson [Case 411] For £47.19.06: Balance of Account Judgement: for Plaintiff, with Costs: £49.15.06

Adam McDonald versus Henri Coutu 178 [Case 412] Damages: £25.00.00 for a Horse lost by Plaintiff, and which he stated he had Last Seen in Possession of Def. In open court, the parties to this suit agreed that: at the end of one month from date, Henri Coutu would deliver to Adam McDonald the horse, or pay him ten pound Stg. But, if the horse should be found by Henri Coutu within a year from date, Adam McDonald is to have the option of getting back the horse, on refunding the ten pounds to Henri Coutu.179 Each party to pay his own expenses.

Chas. Garrett versus Andrew McDermot [Case 413] [Ownership and Boundaries of Adjoining Land] Judgement: Charles Garrett is to get a deed from Andrew McDermot containing all the land on the north side of the road,180 as the road existed at the time of the original contract. The boundary line along the creek to be the highest bank of the creek. Charles Garrett to have free access to and from the water of the creek in all its conditions.181 Each party to pay his own expenses. [C]140

A Special Court, held on the 25 th Septr., 1868 Judge Black182

The Queen versus Alexr. McLean [Case 414] For Manslaughter [Prisoner] being charged on an Indictment with having on the 23rd of June, 1868, at Portage la Prairie, shot one Baptiste183 Demarrais, who died of the wound caused by the shot on the 26th July 1868.184 To the charge the Prisoner pleaded Not Guilty.

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For the Prosecution: Wm. Garrioch, sworn, deponed: “Early in the summer I saw Demarrais. He was in drink. While trying to get into a cart he fell back on the road. I passed on to McLean’s, and returned with Wm. Gaddy. I left him at Gaddy’s byre next to McLean’s house. The man came running towards Gaddy’s house. I cannot say he went into the house. In a short time he returned with a double-barrel gun. I wanted to stop him, but he ran till he came opposite to McLean’s door.185 He came to a dead stand and fired a shot towards the door. Immediately after firing, he ran off again. He ran but a few steps when I heard two shots fired from the house. After a short time a third shot was fired, and Demarrais fell. I heard John McLean talking loud to Gaddy: I heard him accuse Gaddy of being the cause of Demarrais shooting at him. I saw the Prisoner, who said: ‘If he had shot my father I would have shot him in the head, but as he did not I shot him in the back.’186 I had the gun in my hand, and the Deceased said ‘There is no use. I will do no more harm.’ I do not believe he had the gun to his shoulder. I saw the man who shot him but could not say who it was. I thought it was the Prisoner, but would not swear to it.” [C]141 Marie Blondin,187 sworn, deponed: “Deceased caught hold of a woman round the neck, and fell over the fence. It was in the wood, and he wanted to pull up her clothes. He had a knife in his belt. She got up to McLean’s house, and the woman188 was there before her. When we got up to the plain Miss McLean told me not to be afraid – that she had her revolver. McLean was planting potatoes, and Deceased took the bag [of seed potatoes] and danced about. Deceased wanted to speak to McLean, but McLean did not listen to him. I heard three shots, and the Prisoner said: ‘Demarrais is gone for the gun.’189 After I went back I found Demarrais lying on the road, asking pardon of Mrs. McLean, who said: ‘I will not shake hands with a dog.’ They put him in a cart and dragged him away.” For the Defence: Maurice Lowman, sworn: “I dwell at the Settlement. I knew Demarrais. When sober he was quiet and decent, but when drunk was a devil. When in that state I would as soon meet a hostile Sioux as him.”190 Verdict: Not Guilty. Commentary The Nor’-Wester called this case a “cause célèbre,” but one would never have known it from the sparse and somewhat inaccurate court record. Fortunately, the newspaper and J.J. Hargrave left fuller accounts.191

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Apart from the fact that this was the first time the court had been willing to entertain litigation from Portage la Prairie,192 the McLean case was made memorable by the participation of a remarkable American lawyer named Enos Stutsman, whom the McLean family retained to defend their son.193 Forty-two years old, attractive of personality and visage, a natty dresser and an eloquent speaker, Stutsman was a centre of attraction wherever he went. His most notable feature was a lack of any legs to speak of. Fully developed in other respects, Stutsman suffered from a birth defect that had left him with only a vestigial stump of a leg. Short crutches and powerful arms nevertheless enabled him to get around almost as well as others. He was also quite competent on horseback, and was accustomed to travelling by dog sled in winter. Born in Indiana and educated in Illinois, young Stutsman’s professional career began, at age seventeen, as a teacher. But as soon as he attained legal majority at twenty-one, he began to seek, and to win, elective positions related to law. In 1847, running as a Democrat, he was elected as recorder of Coles County, Illinois; and two years later, he won the post of county court clerk. While holding those offices, he studied law, and at the end of his fourth year as court clerk, he was called to the Illinois bar. After a few years practising law and pursuing various business interests in Illinois, the energetic and personable man everyone called “Stuts” set out, at age twenty-nine, on what became a lifetime odyssey to the ever-receding western frontier. His first move was to Iowa, where, first in Des Moines and later in infant Sioux City, land booms offered opportunities in real estate, banking, and law by which Stutsman earned – and then lost – a small fortune. The frontier beckoned once more in 1859, and the young man pushed on to Yankton, in what would soon become the Dakota Territory. There he became the local representative of a land company that had acquired first rights to land about to be surrendered by an Indian band slated to be moved to a reservation. This involved living at a trading post on the land in question for several months, surrounded by some 2,000 of the soon-to-bedisplaced, and frequently hostile, Natives. When the new territory was created in 1861, with Yankton as its capital, Stutsman was elected to the Legislative Council, where, the following year, he played a leading role in organizing the new territorial government. Shortly after that, he was appointed private secretary to the governor. Later that summer, a bloody uprising of Minnesota Sioux spread south toward Yankton, and Stutsman was pivotal in organizing the little community’s defences. Among the “acts of heroism” later recorded by an eyewitness were those of the legless governor’s secretary: “Enos Stutsman ... was, throughout the trying ordeal, constantly to be found at the post of danger with his rifle swung across his back and his revolver strapped to his waist ... its muzzle dragg[ing] on the earth, and no man was more ready to sacrifice his life.”194 Thereafter, “Stuts” was known by those who respected him – and most did – as “Colonel Stutsman.” In the summer of 1866 the frontier attorney-politician moved on once again – this time northward to the remote Dakota settlement at Pembina on the 49th parallel. He had been appointed special agent of the US Treasury Department, charged with

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investigating suspected international smuggling and other customs irregularities. That assignment took Stutsman from time to time to Red River, where his name and reputation came to the attention of the McLean family, anxious that their son should have strong legal representation at his manslaughter trial in the General Quarterly Court of Assiniboia. Strong representation was what Alexander McLean received from his counsel. From the moment the short self-assured attorney first pulled himself upright to address the court – powerfully persuasive, smooth of manner, stubborn of will – no one else in the room seemed to matter, not even Recorder John Black. When Stutsman had first arrived at Emmerling’s Winnipeg hotel on 22 August 1868, it was with a view to defending his client at a trial that was due to open two days later. But when Black opened his court on the 24 August, McLean was nowhere to be found. Stutsman rose and calmly informed the court that, on his advice, “the Defendant had left the territory for the time being” because Stutsman had been under the impression that there was at the time “an almost universal sentiment of prejudice against the Defendant” in the community. While Black and his colleagues must have been at least initially outraged by what they had every right to consider contempt of court on Stutsman’s part, the attorney managed to placate them with his sincere manner, and a promise to produce the accused at a later date. Not only did the court agree to postpone the trial to a special session in September, but it also agreed to extend McLean’s bail bond, without penalty, until then. In the meantime, a grand jury proceeded with its enquiry as scheduled, and brought in a “True Bill” indicting McLean for the killing. Was Stutsman’s excuse for advising his client to abscond genuine? What was to be gained by a month’s delay? Given that the deceased was Halfbreed, and that a majority of the population at Red River was also Halfbreed, the concern was probably legitimate. But that was not likely the sole reason for the lawyer’s audacious tactic. Two days gave very little time to find witnesses, prepare a defence, and assess the unfamiliar court before which he had agreed to appear. The month’s delay that his manoeuvre had gained probably meant that many Halfbreeds would be absent from the settlement on the fall buffalo hunt. It also afforded time for Stutsman’s Pembina crony Joseph Rolette, a respected Halfbreed he had brought with him, to search for witnesses and gauge the temper of local opinion. Finally, it gave Stutsman an opportunity to observe the General Quarterly Court in operation and decide how to deal with its unique procedures. Reporting the special session of the court on 25 September, the Nor’-Wester began by poking fun at the casual quality of its opening: “Her Maj – no – the Honourable Company’s Court was opened by the Chief Justice who, acting as crier for the occasion, used the following formula: ‘Well, the hour is getting late. Let us proceed to business.’”195 The recorder began by summarizing the circumstances that had caused the postponement of the case, commenting that he thought Stutsman’s fears about popular prejudice preventing a fair trial on that occasion had been misplaced. Stutsman hastened to agree, unctuously stating that had he known as much

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about the people of Red River and the Red River courts as he now knew, he would not have advised his client as he had. A few moments later, however, the prisoner’s counsel changed key. As soon as the recorder called upon McLean to plead to the charge against him, and before the accused could reply, Stutsman spoke up: “We shall enter the usual plea of Not Guilty.” “It is usual for the Prisoner to plead for himself,” Black shot back, and he asked McLean once more, “Do you plead Guilty or Not Guilty?” Stutsman stood his ground: “Your Honor and gentlemen of the Bench: I am here to act as Attorney for the Prisoner, and in his name I plead Not Guilty.” Although the recorder continued for a while to insist that McLean plead for himself, he eventually bent to the attorney’s will, and the tone of the trial was set. Next came a challenge to the jury panel. The jury chosen consisted of the usual mixture of anglophones and francophones, and Stutsman objected: “While I have no prejudice on account of blood or race – none whatever – I have a strong objection to having this case tried before those gentlemen in the jury box if there are any of them who do not understand the English language. I can only address the Jury in English; and as it will be important that they should thoroughly understand the whole of my argument, it will be as necessary that they should all be conversant with the English tongue.”196 As in the case of the prisoner’s plea, Recorder Black resisted this challenge at first, explaining that it was customary in such situations to have counsels’ arguments translated by an interpreter; but when the attorney objected that his actual words should be directly understood by every juryman, Black had the jury polled for facility in English, and two members were replaced. An interpreter for French-speaking witnesses was still required, of course, and when the choice of such a person arose, Stutsman seized the initiative once more, proposing Joe Rolette, whom he had brought from Pembina. Rolette was sworn in. Before the first prosecution witness was called to the stand, the recorder announced that the opening address to the jury, describing the prosecution case, which was a function of the prosecuting counsel when there was one, would be made by himself. Court Clerk Smith, he explained, had carried out that duty at the August arraignment before the grand jury, but would not do so today. Smith, in poor health and probably unwilling to cross swords with the professional from the United States, had abdicated his role of public prosecutor. The little defence counsel leaped to his crutches. He had never before, he said, “seen a judge acting as a Crown attorney.” How could he then call upon the judge to decide on a matter over which the prosecution and the defence were in disagreement? The recorder pointed out that this approach “has been the usual course of procedure in Red River,” and he offered his assurance that he would present the case objectively, as he always had.197 While admitting that the practice was “peculiar” and “very embarrassing,” he nevertheless intended to address the jury on this occasion, and again began to do so. The polite but insistent defence counsel interrupted, begging pardon for the intrusion, to enquire whether this was all the recorder would be doing on behalf of the prosecution. Would he also be questioning witnesses, or “would he leave the

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witnesses to tell their own story – their own unvarnished tale?” Although Black tried to reassure him on that score, presumably promising to refrain from aggressive questioning, the lawyer persisted in his objections. Finally, the frustrated recorder asked: “Have you an objection to my asking any questions?”198 Stutsman responded that “the Judge had the right to ask a Witness for information upon evidence that he did not understand, but the Court had no right to prompt evidence by asking new and leading questions.” Black threw in the towel at that point, and called upon Court Clerk Smith to assume the role of prosecutor after all. There is no indication, however, that Smith ever made an opening statement to the jury. He seems, instead, to have simply started calling witnesses to the stand. When the first two witnesses he called failed to appear, the reluctant prosecutor must have wondered whether Stutsman had supernatural powers. After William Garrioch, the first witness who was actually present in court, was sworn, Smith – perhaps mistaking the questioning guideline Stutsman offered to the recorder as one that applied to him as well – simply told the witness to “tell all he knew of the matter in his own way.” The Pembina lawyer had become such a commanding presence in the courtroom by that time that at one point the recorder asked his advice before ruling that part of Garrioch’s evidence was hearsay. It was not long, however, before Black and Stutsman were again at odds. After a third Crown witness had failed to show up, due to illness, the recorder proposed to call John McLean, the prisoner’s father, to take the stand. The elder McLean had been a witness at the preliminary enquiry conducted by Black before charges were laid and had been available to be examined before the grand jury, although the latter body had decided that it did not require his evidence in order to indict. Stutsman protested vigorously to his being called as a prosecution witness. His ground of objection – legally dubious at best – was that only witnesses heard by the grand jury could be called by the Crown at trial. The reason for the rule, he argued, was that the defence would otherwise be caught unawares, unable to know the case against their clients and forced to meet unexpected witnesses. Besides, he said (seriously undermining his previous argument), he intended to call John McLean as a defence witness. Stutsman argued strenuously and at length, and with more eloquence than logic, against the father being called; and Black, after fighting back gamely for a while, eventually gave in once more, ruling that because McLean Sr had not testified before the grand jury, and since he was to be called as a defence witness anyway, he would not be called for the prosecution. When Marie Blondin appeared belatedly in the courtroom, and was about to be sworn in as the Crown’s final witness, the irrepressible lawyer rose again, apologized once more for interfering in the court’s proceedings, and requested that jurors not be allowed to ask questions of witnesses. He had observed jury members interrogating Garrioch, and now pointed out that they were subject to the same rule as the bench – permitted only to seek clarification on points they did not understand in evidence already presented but not to “bring out fresh or new evidence.” Black briefly defended the local custom of giving jurors free rein but soon agreed to impose the requested

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restriction. At the conclusion of Blondin’s testimony, as if in defiance of this ruling, a question came from the jury box on a crucial point: “Who fired the shots?” Before the witness could answer, the lawyer reiterated his objection; and when Black began to point out that it was because Red River did not possess all the “proper machinery of a court” that “many allowances have generally been made to jurors and others,” Stutsman, speaking now with more edge to his voice, retorted, “That is the Court’s misfortune, not ours.” A juror then remarked, speaking for himself and he thought for his colleagues, “Thus far there has been no case made out.”199 With that encouragement, the defence counsel renewed his protestations, and the recorder relented yet again. The tattered Crown case closed at that point. Stutsman got up, declined to make an opening address to the jury, examined Maurice Lowman briefly, and then announced, to general surprise, “Your Honor, here I rest my case.” No doubt taken aback, Recorder Black told Stutsman he had understood that John McLean was to be presented as a defence witness,200 to which the lawyer replied that although he had been prepared to do so, there was now no necessity since the Crown had failed to present any evidence that required rebuttal. And that became the theme of his closing address to the jury. Picking up on the juror’s earlier comment that the prosecution case had not been made out, Stutsman pointed to what he contended was a fatal gap in the Crown’s evidence: “There was no proof before the Court as to how the Deceased was shot. No-one proves that the Prisoner did it.”201 That was not so. William Garrioch’s testimony, as reported in both the official court record and the Nor’-Wester, clearly identified Alex McLean as the shooter. Although Garrioch admitted that he could not swear from his own observation who had fired the shot that wounded the deceased, he testified that he heard the prisoner tell the deceased that he had deliberately chosen to shoot him in the back rather than in the head. That should have been enough to convict.202 Stutsman’s verbal legerdemain seems, however, to have erased that evidence from the jury’s memory, or to have downplayed its significance; and the recorder’s ninety-minute charge to the jury, which Stutsman criticized as partaking “too much of the nature of a Crown prosecutor’s address,” did not succeed in restoring it to prominence.203 It took the jury only ten minutes to acquit the accused. That decision might well have come as a surprise to the prisoner and his family. An early account of the trial claims that Alex McLean was armed as he sat in the prisoner’s dock, that friends with a saddled horse waited outside, and that Clementina McLean, Alex’s sister, sat throughout the trial with her back against the courthouse door, not permitting it to be closed.204 The story could be apocryphal. Its author did not come to the area until several years after the event, and some aspects of his account are mistaken. On the other hand, before lawyer Stutsman had succeeded in tying the court in knots, an objective assessment of the evidence would have suggested a strong likelihood of conviction. It would not therefore be surprising if Portage residents, long accustomed to the need for self-help,205 had prepared thus for the eventuality of an unfavourable verdict.

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Enos Stutsman’s own response to the outcome can be gathered from a letter he wrote to the governor of the Dakota Territory upon returning to Pembina: “Your kind letter ... was received last evening on my arrival home from Fort Garry ... where I defended and cleared a young man on trial for killing a French Halfbreed. This was the first case I have conducted in the Queen’s Court, and the perfect success was far more gratifying to me than the $100 fee (gold) ... I left for home well pleased with British juries, and not at all displeased with myself!”206 The Nor’-Wester’s assessment of the McLean case was scathing: “[It was] a farcical burlesque upon a court of law and justice.”207 “Is our courthouse a theatre for the enactment of low comedy? ... We never in our life saw such controversy in a court of justice between a judge and a member of the bar ... [W]e felt ashamed and sorry for the honor of British law and justice.”208 The embarrassment that the newspaper expressed about Red River’s justice system being shown up by this forceful foreigner must have been felt by many in the courtroom that day – not least by Recorder John Black, who was achingly aware that many of the juridical desiderata demanded by Enos Stutsman were, as a practical matter, simply not attainable in the Red River Settlement at that time. Black may have wished that his resignation as recorder, which he had submitted only a month previously, had been tendered earlier. The Nor’-Wester’s concluding analysis of the McLean case portrayed it as illustrating a problem thought to be at the root of many past unjust decisions209 in Red River courts: “ignorance of the law.”210 What the newspaper’s commentator had found so “farcical” about the trial had been that the recorder was shown by Stutsman to be mistaken about, and the court’s customary practices to be out of step with, many aspects of English common law.211 The article ended with a list of nine points, reasonably accurately summarized, that Stutsman had persuaded the court to accept and which, in the Nor’-Wester’s mistaken opinion, “can never be withdrawn, and must always serve as precedents in all future sittings of the Hon. Company’s Court.”212 Sincere and thoughtful though it was, the newspaper’s critique missed the mark in important respects. In the first place, Enos Stutsman was not right about all the points he pressed and won. A court is fully justified in requiring an accused to plead guilty or not guilty in person.213 Stutsman’s stubborn insistence on entering his client’s plea was simply an attempt – a brilliantly successful attempt – to establish, at an early stage in the trial, the upper hand psychologically over a judge he knew to be without formal legal training, and whom he rightly sensed to be selfconscious about that fact. And, while accused persons are certainly entitled to know the identity of Crown witnesses, such witnesses are not restricted to those who were examined before the grand jury or preliminary hearing. More significantly, there never was an obligation that the law of Assiniboia should mirror the common law in all details of the lawyer-driven adversarial juridical system which had evolved over the years in England and the United States. The HBC charter decreed only that Rupert’s Land’s laws should not be “contrary or repugnant, but as near as may be agreeable” to those of England;214 and the Laws

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of Assiniboia expressly stated that English laws applied only “so far as they may be applicable to the condition of this Colony.”215 Many of the court procedures of which Stutsman complained – the requirement that accused persons plead personally, the recorder’s customary opening presentation of criminal cases to the jury, and the questioning of witnesses by both the bench and jury, for example – were consequences of a dearth of trained lawyers in the settlement before Stutsman’s arrival. The “condition of this Colony” before the arrival of lawyers dictated that Red River courts must generally eschew the adversarial model of court procedure, with which Enos Stutsman was so familiar, in favour of something similar to the court-driven inquisitorial model that prevailed – and still prevails – in continental Europe. Whether it was a better or a worse system than that in which courtroom initiatives are left largely in the hands of lawyers for the adversaries was beside the point; it was, in most circumstances, the only system possible in Red River at the time. As the forensic carnage caused by Stutsman’s single-handed foray demonstrated, the adversarial system doesn’t work as it should unless the skills of adversaries’ professional advocates are in reasonable balance. It is true that agents were taking the place of parties in Red River courts to a growing extent, that opposing pairs of such untrained “counsel” had sometimes participated in high-profile cases such as Sayer and Corbett, and that such amateur advocates were now showing up in even run-of-the-mill cases with increasing frequency. But self-represented litigants were still the norm in settlement courts, and would remain so until provincehood brought a handful of fully qualified lawyers along with the surge of other immigrants to the area. In the meantime, Red River’s indigenous court-supervised judicial system continued to serve the settlement reasonably well. and should have been defended more firmly by Recorder Black from Enos Stutsman’s brilliant but unfair onslaught. Normally imperturbable, the recorder had allowed himself to be rattled by the insistent and wily American attorney. And if – as Stutsman’s repeated interruptions of Black’s charge to the jury fed his frustration about the inadequate representation of the prosecution case, and drove him to what may have been a less than ideally balanced analysis of the evidence, and increasing testiness toward his tormentor – Black lost some of the respect with which he was normally regarded by juries, that was precisely what his tormentor had hoped for. “[W]hile many of the spats between Stutsman and Black were legitimate,” the little courtroom “had also witnessed a consummate display of the time-honoured forensic art of judge baiting.”216 [C]142

General Quarterly Court, held November 19 th, 1868 217 Judge Black 1st Case

James McKay versus Wm. Dease [Case 415a] 218

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For the Recovery of an Ox and £12.00.00 Damages Angus McKay, [Agent] for Plaintiff, stated that the ox had been taken from James McKay’s man, on his way to St. Cloud, early in June of last year; that the ox was taken against the man’s will by the Def., who claimed the ox as his; [and] that he would now prove that the ox was James McKay’s. 1st Witness, Maxime Lépine, sworn. At this stage the case was postponed, the Plaintiff pleading that he could not proceed unless the ox in dispute was present. Each party shall pay his own witnesses. Plaintiff shall pay the Jury. And the whole question of costs will be settled when the case comes on again. 2nd Case

Alexr. Ross versus Augustine Gaudris [Case 416] For Debt and Damages: £24.06.06 Alexr. Ross said: “On the 18th of August last, Def. bound himself by a written contract to build and completely finish for me a byre for £7.00.00. He was to finish the byre by Sept. 15 or forfeit £2.00.00. He did fail, and I therefore claim the forfeit. Def. came to me again on Oct. 1st, and bound himself by a second contract to finish the same byre in 10 days, or forfeit an ox in good condition. That Def. failed to fulfil this contract also, [and] I therefore claim the ox or its value: £10.00.00. Def. then refused to work at the byre. I then got some good workmen to estimate the cost of finishg. the byre. They said £5.00.00, which I now claim as damages – making altogether £17.00.00. Besides which, Deft. owes [C]143219 me a debt of £7.06.06, which makes £24.06.06 – the amount I now sue him for.” [Marginal note: The 2 contracts were handed in to the Court, & acknowledged as good and binding by the Defendant.] 1st Witness, Dond. Matheson, sworn: (Ex.) “I remember you shewed me a byre a short time ago. It was partly furnished. The walls were up, and the roof on. I am accustomed to work at building byres and so on. I consider that it would take £5.00.00 to finish the byre you shewed me.” (Cross-Ex.) “The byre was logged up, and the roof sticks on.” 2nd Witness, Chas. Laroque, sworn: (Ex.) “I worked at a byre for you. The walls were filled up and the roof on when I began. It was the same byre Gaudris had been working at. I am accustomed to work at byres. It would cost £5.00.00, or perhaps more, to finish the byre when I began to work.”

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(Cross-Ex.) “There was wood work to be done inside. The wood work on the outside was finished.” 3rd Witness, Alexr. McBeath, sworn: “I remember you shewed me a byre partly finished. I think it would take £5 or £6 to finish it.” (No Cross-Ex.) 4th Witness, E. L. Barber, sworn: (Ex.) “I remember Gaudris bringing orders from you for goods, which I delivered to him.” Defendant admitted a debt to Plaintiff of £7.04.06.220 Plaintiff’s case closed Augustine Gaudris, in Defence, stated: “It is Ross’s fault that I did not finish the byre. He did not provide thatch or mud. He said Matheson was to bring him some thatch, but he did not. Ross asked me to get some long grass for thatch. I was 3 days cutting it, and 2 days getting it home. This delay prevented me from finishing the byre in time. I did not deliver the grass to Ross, but put it in his yard. Ross gave it away, and put it to other uses. I engaged a man to haul mud, and hired [C]144221 an ox from Ross to haul it. Ross applied the mud to other purposes. The day we made the contract at Gingras’s, Ross asked me to go to Shoal Lake, saying he did not care about the byre being finished or not. I went with him. That is my reason for not finishing the byre. Ross did everything he could to prevent my finishing it. Ross was to furnish the wood for the byre. I got the wood from Ross.” Defendant called no [other] witnesses. Verdict for Plaintiff: £21.04.06 and Costs £7.11.00 = £28.15.06 Judgment for Plaintiff: £28.15.06 3rd Case

Wm. Inkster versus Eliziard Largimonière [Case 417a] 222 For £256.05.00, being the value of 82 kegs of Gunpowder at £3.02.06 pr. keg, stated by Plaintiff to have been Damaged by Deft. on the way from St. Cloud last summer. 1st Witness, M. Lowman, sworn: “I am Wm. Inkster’s Clerk. I received Largimonière’s loads. He had 181 kegs of gunpowder. It was all more or less damaged – 82 kegs were totally damaged and 50 partially so. He brought some dry goods, which were all damaged. John Matheson brought part of the same invoice in good order. Largimonière arrived at night. His carts were not covered. It had been raining that eveg.” The Witness

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here produced a sample of the damaged powder. (Cross-Ex.) “I swear that the powder came in the state of the sample shewn in Court. Cannot tell whether it got wet between St. Cloud and here or not. The damaged powder was very hard.” 2nd Wit., R. Tait, sworn: “I got some powder through St. Cloud from Hamilton. I believe it came from the same place as Inkster’s. I got it from Mr. Begg. The kegs had the same stamp as Inkster’s. It was in good condition. [C]145223 I saw Inkster’s powder. It appeared perfectly damaged. It appeared to be injured by rain.” (No Cross-Ex.) 3rd Wit., Alexr. Begg, sworn: “I have no interest in this case. It will make no difference to me whether Inkster win this case or lose it. I swear I delivered the powder to Inkster’s agent at St. Cloud in good order, and that it was received by him as being in good order. It remained a whole day in the hot sun after it was put into the carts at St. Cloud. The railway authorities had Inkster’s agent’s receipt for it, and his acknowledgment that it was in good order. The powder I supplied to Inkster was part of a large lot distributed to various merchants. I have heard no complaints from others. I saw the carts loaded with the powder for Inkster. There was no covering on the carts.” (No Cross-Ex.) 4th Wit., A. G. B. Bannatyne, sworn: “I was at St. Cloud’s when Largimonière’s carts were being loaded. The powder carts were not covered. The weather was very warm. The man was loading. My powder was stored in the same place at Inkster’s in St. Cloud. All the kegs appeared to be in good order. My powder was in very good order – only 1 keg was damaged. I was at the depot all day. It did not rain while the carts were there. I do not remember seeing Largimonière’s carts on the road. I could not say whether they had coverings on or not. One man whom I had supplied with powder returned a keg which was damaged. Others may complain; I have not heard from them. I sold some from the same lot, none of which was bad. I got some afterward from the same lot, 15 kegs of which sounded bad on shaking, but I believe it was good. The powder is so fine that the least dampness makes it cake on the outside. It is the finest powder ever imported here in kegs. I have broken down powder like the sample produced in court, and it was pretty good. [C]146224 It is not useless. Powder kegs are often dipped in water to tighten them, without spoiling the powder. I do not believe that a powder keg laying on its side would get wet through and through. It might spoil if standing on its end.” (Cross-Ex.) “I am very sure that the powder keg sent back to me was not from Inkster. It may have got damaged after it left me.” (To a Juryman) “I did not see John Matheson receive powder.”

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5th Wit., Baptiste Laderoute, sworn: “I met Largimonière’s carts beyond Georgetown. I did not pay attention to the carts. I saw that some of the carts were not covered. I can not say that any were covered. Largimonière was 1 day’s journey ahead of his carts. I think he said he was going home. I saw a son of Tom Harrison’s with the carts. Can’t say who else was there.” (CrossEx). “When there is no appearance of rain we uncover the carts. I did not see anything but big kegs. It may have been rope.” 6th Wit., Salomon Jeanvenne, sworn: “I met Largimonière’s carts. I do not know what was in them. It looked like powder. I saw no covering on the carts. I thought there was powder – not certain.” (Cross-Ex.) “I saw 12 or 13 carts. The men said they were Largimonière’s carts. I saw parts of mills and reapers in the cart. These carts were not covered. I only met that brigade that day. It was fine weather.” (To the Bench) “I can not say if there was any powder in these carts.” 7th Wit., Jacob St. Denis, sworn: “I was at St. Cloud when Largimonière’s carts were there. I did not notice if they were covered when they came there. I saw a good many hides. I did not see him sell any – I heard he sold some. I saw Largimonière’s carts loaded with powder at the depot. I did not see where it was taken from. The [C]147225 carts were not covered that evening or next morning. We had a good deal of rain after we left St. Cloud.” (No Cross-Ex.) 8th Witness, Richd. Pritchard, sworn: “I met Largimonière’s carts on my way to St. Cloud’s. There was no covering on any of the carts. There was powder in all the carts. It was raining at the time. It had rained hard before we met them. I noticed the carts were uncovered. Mr. Christie, who was with us, said: ‘I would not give much for the chance of that powder, whoever it belongs to.’” (Cross-Ex.) “I met the carts this side Scratching River. It was raining. I am sure they were Largimonière’s carts. I saw packages in the carts with Inkster’s name on them. I am not certain how many carts were there. A good many were loaded with powder.” 9th Witness, J. M. House, sworn: “I do not remember seeing Largimonière’s carts on the road to St. Cloud. I saw them down in the town. Several were loaded with powder. Mr. Begg told me it was Inkster’s [shipment]. The carts I saw were not covered. I cannot remember the weather.” (Cross-Ex). “I could not say the carts I saw were all Largimonière’s. 3 or 4 were loaded with powder. They had no covering. I did not know whose the carts were – I only know the powder was Inkster’s. It was evening.” Case for Plaintiff closed

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For the Defence, M. Bruce [Largimonière’s Agent]226 urged that the powder was already damaged when Largimonière received it at St. Cloud. 1st Wit., Roger Goulet,227 sworn: “I have no interest in this case. After Largimonière arrived from St. Cloud I went with him to Inkster’s. He asked for his pay for freight of goods from St. Cloud. Inkster refused to pay him saying: ‘The powder is damaged.’ Largimonière said: [C]148228 ‘The powder is damaged, but not by me.’ Largimonière proposed settling in a friendly way. Inkster said: ‘I prefer going to court, because if you are not made to pay for the powder Mr. Begg will have to pay.’ Largimonière asked to see the powder, but could not see it because the clerk was not there. Inkster shewed me a keg of powder. It was as hard as stone. I only saw it through the bung.229 I tried to get some out but could not. I do not know why the rest was not shewn.” (Cross-Ex.) “I do not know what damaged the powder. I think it would require a great deal of wet to spoil it so. It must have been in water some time to become so hard. Inkster did not refuse to shew the powder, but said the clerk was not there. He shewed me a keg. It was not fit to buy. It was quite damaged. Inkster said it was one of the kegs Largimonière brought – I think it was one of the kegs that Largimonière brought.” 2nd Witness, Colin McDougal, sworn: “I was not in charge of Largimonière’s carts – I was one of his hired men. We were loaded at St. Cloud with many a thing. We got some powder. Mr. Begg was present while we were loading. We loaded the powder first, [and] we covered the carts that evening so as not to get wet. We took particular care of our loads. We covered them not only when there was rain, but when there was any appearance of rain. Three (3) of the powder carts were covered with hides at St. Cloud, and not uncovered till we arrived at Inkster’s. Three were covered with canvass, and only uncovered in fine weather. The powder carts had two boards on the sides. We met Mr. Christie beyond Scratching River, between Two Points and Prune Creek. It was not raining when we met him. It was morning. It rained in the afternoon at Scratching River. I swear that the powder did not get wet between St. Cloud and here. All the carts were covered except those loaded with mills.” [C]149230 (Cross-Ex.) “We had not hides for all the carts. The coverings were mostly canvas. We loaded the powder first. We covered the powder the evening that we received it. The covering would keep out the rain. We had only one heavy shower of rain. No rain went through the covering. I swear positively that the powder did not get wet through the covering. That was the only way it could get wet. The carts had two boards on each side and end. We had six carts loaded with powder. It was evening when we arrived at Inkster’s. It rained a little after we arrived.”

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3rd Witness, Josh. Largimonière, sworn: “I was with Largimonière’s carts to St. Cloud. I was not present when the carts were loading. The carts were covered after they were brought to the camp. I am sure the powder did not get wet after we got it. Six carts were loaded with powder. The carts loaded with powder were never uncovered in rainy weather. We met Mr. Christie beyond Scratching River. It was fine weather. It rained a little after we arrived at Inkster’s in the evening. I am sure the powder did not get wet after we arrived. While we were coming some powder ran out of one of the kegs into the cart. We gathered some of it and fired it out of a gun, and it went off well enough.” (Cross-Ex). “The keg out of which the powder ran was in the middle of the load. It rained hard only once after we left St. Cloud, [and] we examined the loads after the rain, They did not get wet.” 4th Witness, Jeremiah Kennedy, Gunsmith, sworn: “I was with Largimonière’s carts from near St. Joe’s to near Fort Garry. I always saw them cover the carts when there was any appearance of rain. I do not think the loads got wet from neglect. I used to put my rifle under the covering to keep it dry. I do not think the loads could get wet, except from the sides.” (Cross Ex.) “I am a gunsmith – I know something about gunpowder. I saw the powder produced here yesterday. I think it was damaged. Laying for years in a damp place would make it like that. Cannot positively swear that the loads did not get wet – we had two heavy showers of rain.” [C]150 5th Witness, Jas. McKay, sworn: “I bought 9 or 10 kegs of gunpowder from Mr. Begg this summer. It was a little damaged. I cannot say how it got damaged. It was in hard lumps. It was very hard. If the powder was kept in a damp place I think it would be like this powder. I was not told it was in good order. I only opened 3 kegs. I sent the rest out in trade. I do not know whether the rest was good or not. I did not see Inkster’s powder. I do not think the powder was damaged by rain. It was not totally damaged – it was not ⅓ damaged. I had no reason to select these 3. They all looked nice outside.” (Cross-Ex). “I got the powder here from Mr. Begg. I do not know whether the 10 kegs I got formed part of that sent back by Inkster to Begg. I heard one of Inkster’s traders say he would have to return the powder because it was damaged. My powder may have formed part of what Inkster received. I smashed up some of it, and it seemed to be pretty good.” 6th Witness, Wm. Dease, sworn: “I got 1 keg of powder from Mr. Begg. It was damaged so as to be unfit for use. Mr. Barber told me it was from Canada. I do not know who brought it here.” (Cross-Ex.) “I do not know if this keg was one that Inkster returned to Mr. Begg.” Defence closed

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No Verdict: The Jury, after long deliberation – having been once sent back to their room – returned and said, for the second time: “We are not agreed and can never agree.” They were consequently discharged.231 4th Case

Gilbert St. Luc versus Peter Pruden [Case 418] Damages: £12.00.00 This case was by the mutual consent of both parties Referred to the Bench for Settlement [Arbitration without a Jury] Defendant admitted that he had taken a horse belonging to the Plaintiff, thinking it was his own, and had kept it for about 1 yr. Plaintiff proved that during the time the horse [C]151 was in Deft’s possession he had paid the several sums of £1.17.00, £1.10.00 and £1.00.00 to parties searching for the said horse. Judgment for Plaintiff: £4.07.00 and Costs £1.10.00 = Five pounds Seventeen shillings Stg. 5th Case

J. M. House versus Rodk. Ross [Case 419a] For £26.15.00: Debt By Default, Judgment for Plaintiff for: £18.00.00 and Costs £1.07.00 = Nineteen pounds Seven shillings Stg., without prejudice to Plaintiff’s right to sue for the balance.232 6th Case

John Inkster versus Wm. Daniel [Case 420] Debt: £31.01.06 Colin Inkster, [Agent for John Inkster] sworn: “Wm. Daniel owes my father £21.01.06, the sum of ten pounds having been paid since the Summons was issued.” Judgment by Default for Plaintiff:

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£21.01.06 and Costs £1.03.06 = Twenty-Two pounds, Five shillings Stg. 7th Case

Eliziard Largimonière versus William Inkster [Case 421] For £120, corrected by Plaintiff to £116.00.00: Debt and Damages Deft. confessed the debt of £84, leaving a bal. of £32, and asked for a postponement of the case on account of the absence of an important witness, Chas. Spencer, which was granted. Judgment for Plaintiff: £84.00.00, without prejudice to Plaintiff’s right to sue for the balance. Each party to pay his own expenses for the present, the whole question of costs to be settled at the court at which the suit is tried, if there be a suit.233 [C]152

Letters of Administration 234 [In the Matter of the Intestacy of Lowe Loutit] [Case 422b] 235 Application having been made at the last session of the General Quarterly Court by Mrs. Loutit for Letters of Administration to administer the estate of her late husband Lowe Loutit, and no objections having been made by any party, authority was given for issuing such letters in Mrs. Loutit’s favor.

[In the Matter of the Intestacy of James Ballandine] [Case 423a] 236 Application was made by the widow of the late James Ballandine for Letters of Administration, to enable her to administer the estate of her late husband, the said James Ballandine, of which application, public notice was given by the Court. Thomas Bunn, C. C.237 [C]153

General Quarterly Court, held Feby. 18 th 1869 Mr. Thomas Bunn having been appointed to the office of Clerk of the Court, the following oaths were administered by Judge Black: viz.:238

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The Oath of Office “I, Thomas Bunn do swear that I have not paid nor will pay, any sum or sums of money or other reward whatsoever, nor have given nor will give, any bond or other insurances to pay, any money, fee or profit, directly or indirectly, to any person or persons whatsoever for my nomination and appointment as Clerk of the Court, so help me God.” Oath of Allegiance “I, Thomas Bunn do sincerely promise and swear that I will be faithful and bear true allegiance to her Majesty Queen Victoria, so help me God.” 1st Case

The Queen v. William Johnston [Case 424] By Indictment239 for Stealing a Mare, the property of one James Bruce, and also a Saddle, the property of one John Tait. The Prisoner put in a plea of “Guilty,” and being asked by the Court if he had anything to say why judgment should not be passed on him, said “No.” The Court thereupon passed judgment as follows viz.: “That William Johnston be imprisoned in the common jail for the period of one month from this date.” The fact of his having been already one month in jail was taken into consideration by the Court when settling the term of his imprisonment. [C]154240 2nd Case

The Queen v. John Isbister [Case 425] By Indictment241 for Stealing an Ox the Property of one James Bruce, and Killing the said Ox The Prisoner having pleaded “Not Guilty” to the Indictment, the following Jurymen were sworn to try the case viz.: 1. William Scott 5. William Vincent 9. Phil. Maguire

2. George Bird 6. William Pruden 10. Charles Stodgill

3. John Corrigal 4. Charles Thomas 7. Morrison McBeath 8. Alexr Dahl 11. Cornelius Fidler 12. Edward Fidler

Mr. Thos. Bunn then read the follg. evidence for the Prosecution:242

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1st Witness, James Bruce, sworn: “My name is James Bruce. I am a farmer. John Isbister killed an ox belonging to me on 15th Decr. The ox was stamped on the hip with the letter ‘J.’ The stamp was plainly visible. I have seen the stamp by night. I saw Isbister butchering my ox. It was in a stable or byre. The door was shut and fastened. Isbister said it was shut to keep out the pigs, [but] I saw one little pig going about. The door opened outwards. I went into Isbister’s house before I went to the byre. I saw his wife. She was working with the fire. I asked for her husband, [and] she said ‘He is off somewhere.’ I asked if he would be home soon, [and] she said ‘I think he will.’ My ox killed by Isbister had no mark on his ears. He [the ox] was at Bourke’s during the latter part of the summer, and all fall. He was rising 3 yrs. old, of a brown color, with white over the rump and a little white on the shoulders. I would know the hide of my ox if I saw it.” Mr. Bunn said that he had reason to believe that the hide & head of the ox in question, which had been attached243 by Constable Mulligan in John Isbister’s store, were now in possession of the Prisoner or his counsel, and asked that they should be ordered to produce them. Mr. A. Ross for the Prisoner said that the hide would be produced presently, but that the head had, he was sorry to say, been made away with by John Isbister. Cross-Ex. [of Bruce by Ross]: “I did not see John Isbister take my ox. I could not say positively he took him. I say he took him because I found him [C]155 butchering him. I did not see him kill the ox – he was already partly skinned when I saw him.” (To the Bench:) “The ox was brown, a dark color – a mixture of red and brown – what is called a brindled244 ox.” 2nd Witness, Daniel Lapointe, sworn: “I worked for John Isbister all last winter – worked till after the seed was put down. I know all his cattle – he had eleven last winter. Of his young oxen two were red and white and one black and white. I saw the hide of the ox killed on 15th Decr, said to be Bruce’s. (The hide was here brought into court.) It is not the hide of any of Isbister’s cattle. I do not know Isbister’s mark for his cattle. I did not know it was the hide of Bruce’s ox. I saw that hide in Isbister’s store. Isbister had no animal like that. I do not know Bruce’s cattle.” (Cross-Ex.:) “I do not know that Isbister had all his cattle home last winter – may have had some wintering out. He had no ox like that (pointg. to hide) at his place. He had eleven at his place. I do not know if any had been lost. I went to see this hide after the ox had been killed – when Bruce went. James Bruce & them asked me to go with them. I do not remember what man asked me to go. I do not know where he lives.” (To the Bench:) “I am sure there was no animal like that at his place. One was something like that, but more red. I saw it not long ago – since the ox was killed.” (To a Juryman:) “I went to work at Isbister’s before the ice set fast a year ago last fall.”

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3rd Witness, Robert Tait, sworn: “I know some of Bruce’s cattle. I knew the ox that Isbister is accused of having stolen. When I saw the head I knew [it] to be the head of Bruce’s ox – knew by the horns: one of them was broken. I knew the ox well. Did not know he was stamped. There was no mark on the ear of Bruce’s ox. The head I saw in Isbister’s store had no mark on the ears. One ear was a little nibbled, as with a whip or a dog bite, or something of that kind. It appeared to be newly done. May have been newly done, or not – I can’t say. I never saw two oxen exactly alike.” ¶ (Cross-Ex.:) “I can’t say I know that hide. It may be the hide of Bruce’s ox, or it may not. There was no mark on the ear of the head [C]156 I saw in Isbister’s store. It was no mark by which to distinguish cattle. The head I saw in Isbister’s store would agree with this head. I swear that the head I saw in Isbister’s store was the head of Bruce’s ox.” (Mr. Ross:) “What is John Isbister’s general character?” (Witness:) “I would rather not answer that question.” (Mr. Ross:) “I wish you would.” (Mr. Bunn:) “Since the question has been asked by the Prisoner’s counsel, I think it ought to be answered.” (Mr. Ross:) “I withdraw the question.”245 4th Witness, Joseph MacMillan, sworn: “I know all Isbister’s cattle. He has one brown, 1 red, two spotted, one black. He had some of the same color as that hide, but he has them yet. That is not a hide of any of Isbister’s cattle.” (Cross-Ex.:) “Isbister has got some cattle of that color (hide). I often see his cattle. He may have bought some.” (To the Bench:) “Isbister’s cattle are more spotted than that. That is not the hide of any of Isbister’s cattle. I could not mistake it for one of Isbister’s.” 5th Witness, James Mulligan, sworn: “I am a Constable. I executed a search warrant in John Isbister’s store. I attached [seized] the beef, hide and head of an animal that I was told was an ox of Bruce’s. One of the horns was broken – there was a stump remaining. On the 16th inst. I was told to get the head and hide for the trial. I was told that Isbister had sold the head to an Indian.” (Cross-Ex.:) “That hide resembles the hide I attached in Isbister’s store. There were present when I was at Isbister’s store: James Isbister, James Bruce, Robt. Tait, Lapointe and maybe some others.” 6th Witness, Peter Bruce, sworn: “I did not know the ox John Isbister is accused of stealing. I saw the head and hide in Isbister’s store. I measured the ears. They were so nearly the same length that I said there was no difference. There was no mark on either ear.” (Cross-Ex.:) “I do not know that hide.” 7th Witness, James Isbister, sworn: I knew the ox in question. He was brindle with some white. The horny part of one horn was off. This hide rather resembles the hide of Bruce’s ox.”

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Case for Prosecution closed [C]157 Defence: 1st Witness, James Isbister (brother of the Prisoner), sworn: “I know that hide. To the best of my recollection, my brother Johnny had an ox like that – was something of that description. He got him from Dennison when a calf. I know when Mulligan came up. That is the hide that was shewn them.” (Cross-Ex.:) “To the best of my recollection my brother’s ox, which I have been speaking about, was white across the shoulders. A piece of his horn was broken off – about 1½ inches. One ear was cut for a mark. This is the hide to which the head I am speaking of belonged.” (To the Bench:) “I don’t recollect Mulligan seizing the hide and head. I do not know what became of the head.” 2nd Witness, William Dennison: “I have sold cattle to John Isbister – 2 yrs. ago last summer. It was a cow. He did not take her away till after she had calved. To the best of my recollection the color of the calf was like that hide – resembled it very much, something like that. Irvine brought it down. I saw this hide at Isbister’s. James Isbister was there.” (Cross-Ex.:) “I cannot say if the calf had the same spots as that hide. The general color was the same.” 3rd Witness, Geo. Irvine, sworn: “That hide is the same color as the calf I brought down from Dennison’s. I saw the calf last spring – in March at Johnny’s place. I am positive merely to the color.” 4th Witness, Alexr. Ross, sworn: “I stayed at Geo. Flett’s next door to Isbister’s last winter. He had some animals like that hide. I saw this hide before. He had some cattle [that were] brown like that – only not so much white as that. The right ear was cut off about 2 inches. Can not swear to anything about that hide.” 5th Witness, John Bourke: “I remember meeting John Isbister early one morning, searching for an ox. It was an ox that had been wandering about our place for some time. He did not describe the ox he was in search of. I told him the cattle were out.” [C]158 This closed the evidence for the Defence. And, the Judge having charged the Jury, they retired. After a short deliberation, the Jury returned, and through their Foreman, Charles Stodgill, gave a Verdict of Guilty against the Prisoner, but recommended him to the mercy of the Court on account of this being the

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first time to their knowledge that he had appeared as a criminal in this Court. The Court, after asking the Prisoner if he had anything to say why judgment should not be passed upon him, and the Prisoner answering nothing, passed the following Judgment: That John Isbister be imprisoned in the common jail for the period two months from this date. III Case

Henry McKenney v. Andrew McDermot [Case 426] For Debt: £46.15.04 Mr. McKenney put in an a/c amounting with interest (£3.11.03) to £46.15.04, which a/c was certified as correct by A. G. B. Bannatyne, for A. McDermot,246 with the exception of the interest charged. Mr. Bannatyne put in an account from A. McDermot against McKenney for £50.00.10, which Mr. McKenney objected to as an offset on the ground that a/c, with the exception of the two first items, amounting to £8.01.10, was the subject of another suit to come before this Court, viz.: McDermot v. McKenney and Schultz.247 Mr. Bannatyne, for Mr. McDermot, finally agreed to allow the interest on McKenney’s bill, on the condition that one year’s interest, at the same rate as that charged in McKenney’s bill should be paid on the sum of the two items in McDermot’s bill which McKenney had agreed to accept.248 The Court then gave Judgment for Plaintiff for £38.04.10¼, with Costs, viz.: Mr. McKenny’s account with interest: Two items in McDermot’s a/c, viz.: £8.00.10 with int. 9/7¾ Costs of Suit: Judgment for £39.08.04¼ [C]159 IV Case

Alexre. Morin v. John Dease [Case 427] For a Debt of £7.00.00 By Default £ s d249

46.15.04 8.10.05 ¾ 38.04.10 ¼ 1.03.06 £39.08.04 ¼

General Quarterly Court of Assiniboia Records, 1866–69

Judgment for Plaintiff for: Costs of suit:

559

7.00.00 2.00.00 £9.00.00

V Case

Henri Bousquet v. Frank Larose, alias Boisvert [Case 428] For Debt and Damages £21.00.00 Judgment for Plaintiff for £10.00.00250 VI Case

Daniel Carrière v. Pierre Dumais [Case 429] For Debt: £8.14.00 [Failure to Deliver Barter Goods] Carrière stated that he had given a horse valued at £12 to Dumais; that he had received from Dumais a cow which he valued at £4, and cash £2, leaving in his favor a balance of £6, for which Dumais promised to deliver boards two years ago, but had failed to do so; [and] that, owing to the great rise in the price of boards, he now claimed from Dumais the sum of £8.14.00. The Def. not appearing, Constable Nolin was sworn, and declared that he had served the proper Summons on Dumais, and the Court then gave Judgment for Plaintiff for £6.00.00, and all expenses of the suit. VII Case

Boniface & Romain Nault v. J. B. Lapointe [Case 430] Damages: 10 Barrels of Flour The Plaintiffs stated that they engaged with Bishop Taché last fall to go to Abercrombie for 20 barrels of flour, and that they were to get half the flour, viz.: 10 barrels, as compensation. On arriving at Georgetown they received orders from Lapointe, who was in charge of the Bishop’s carts, to turn back, as there was not flour enough at Abercrombie to load them. They consequently turned back from Georgetown, having loaded there with Company’s goods, for which [C]160 they were paid at the rate of 10/ per 100 lbs. weight – making a sum of £21.00.03, which sum they had offered to the Bishop for flour, which he refused to give them; [and] that they then offered the money to Lapointe for flour, which he also refused. Therefore they now

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sued Lapointe for 10 barrels of flour, because they had undertaken to bring 20 barrels from Abercrombie for which they were to receive the half; and only failed because they were turned back from Georgetown by Lapointe. Mr Burdick, the only witness in this case, proved that the Plaintiff acted quite independently of Lapointe in bargaining for their loads at Georgetown; that he, Lapointe, was not regarded as the Bishop’s Agent in any way; that when they were loaded it was clearly understood that they were to be paid in money; that they appeared quite satisfied with the arrangement he had made with them with respect to their pay; [and] that 4 barrels of flour at Abercrombie were worth £18 or £19. The Jury, after a short deliberation, returned a Verdict for the Defendant. The Court accordingly gave Judgment for Defendant. VIII Case

François Goselin, dit Commis v. James Clouston [Case 431a] 251 For the Recovery of a Horse and Damages thereon James Clouston asked for a postponement of this case to the May Court on these grounds, viz.: the unavoidable absence of an important witness, Celestin Thomas, and the fact that the mere lapse of time would, by shewing whether the horse bore a stamp or not, settle the question between the parties without further trouble. The Court granted the delay and, each party being very unwilling to trust the horse in question with the other, in the meantime, the Court further ordered: that the horse be first carefully inspected by four credible and respectable persons, two chosen by each party to this suit, who shall give evidence at the May Court as to whether the horse has been tampered with in the meantime, after which inspection the horse shall be placed in charge of Mr. James McKay. That François Goselin [C]161 dit Commis is responsible for the appearance of the horse at the May Court, and that they both, viz:. James McKay and François Goselin dit Commis must be prepared then to swear that the horse has not to their knowledge or with their consent been tampered with. And that it will not be taken as an excuse for the nonappearance of the horse to say: “He is lost.” The question of costs to abide the decision of the case. IX Case

Benjamin Lagemonière v. Baptiste Morin & Amable Marion 252

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[Case 432] Damages: £25 each for consequences of an Assault and Battery After some discussion between the parties, the Court ordered the Plaintiff to proceed against the Defendants in two separate cases. The Plaintiff, then taking up the case against Baptiste Morin, said that he claimed £25 from him on account of an injury in the shoulder which he had recd. in a row with Morin 3 months ago; since which time he had been unable to work. Several Witnesses were called, who proved that Morin had struck Lagemonière four or five blows; but it was not clearly shewn that these blows, or anything that Morin did, had any connexion with the injury complained of by the Plaintiff. It was also proved that the Plaintiff’s pay as a constable had never been stopped. The Jury gave a Verdict for Plaintiff for damages £4.08.00 and costs.253 The Court acccordingly gave Judgment [for] damages and costs: For Plaintiff: 6 Summons, 3/6: 4 Witnesses, 3 days @ 5/: Dr. Convenent: £1 1/; 5/; 5/: ½ Deposit 20/: Jury: Judgment for:

£04.08.00 01.01.00 03.00.00 01.11.00 254 00.10.00 255 03.00.00 £13.10.00

[C]162 X Case

Benjamin Lagemonière v. Amable Marion [Case 433a] 256 Damages: £25 for consequences of Assault and Battery The Def. asked for the postponement of this case till the May Court on account of the absence from the Settlement of a very important witness, viz.: Joseph Harkands. The case was postponed on the Def. finding security for the payt. of Plaintiff’s costs in this suit; Josh. Marion becoming security for the payt. of the said costs, viz.: £6.02.00, in eight days. The Court further ordered that at the May Session the case must go on under any circumstances, unless settled in the meantime.

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XI Case

Andrew McDermot v. Henry McKenney & Co. [Case 434] 257 For payment of a Note of Hand258 for £50, dated June 2, 1862, signed McKenney & Coy., payable with Interest at 6 pr/cent, 5 years after date; and also for £15, being the Rent for 5 yrs. on a piece of land occupied by the Defts. (The note of hand was produced in Court.) The Plaintiff stated shortly that the note of hand spoke for itself; and that the £15 was the amount of rent due on 2 chains of land occupied by the Defts. at [illegible word] 5 years at £3 per annum, and called witnesses to prove the occupation of the land for which the above rent was charged.259 (The deed [of lease] referred to was produced in court.) The Deft. then put in a deed of conveyance of land signed by Andrew McDermot, Mrs. McDermot,260 and McKenney & Co. – in which deed, for the consideration of £110, the receipt whereof is acknowledged, and of which the note of hand for £50 is a part, the Defts. are put in possession of a piece of land therein very particularly described; besides which they are guaranteed the right for several years to purchase another piece of land, with the right to occupy it in the meantime, and also a right of way to the river along the southern boundary of Lot No. 248, and other privileges. The Defts. then brought witnesses to prove: that the land on which rent was charged was the land they were entitled to occupy under the deed [of conveyance]; that even if it were not so, the charge [C]163 of £3 per annum was exorbitant; and also that there was no open road to the river at the place indicated in the deed [of conveyance], and where the right of way is guaranteed to them. The Jury returned the following Verdict: “We find that McDermot is not entitled to any of the rent sued for; that McKenney is entitled to a right of way on a road along the southern boundary of Lot No. 482 to the river; that Mr. McDermot cannot claim the payment of that note of hand, with or without interest, until such said road be opened up.” The Court gave Judgment for the Defendants. Mr. Bannatyne, for McDermot, deposited £1 with the Court, and said he would apply for a new trial of the case of Andrew McDermot v. McKenney

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and Coy.261 An affidavit signed by Dr. Schultz was put into Court in which a postponement of the case is asked for, but the Court did not see sufficient reasons for granting it.262 The note of hand for £50 and the deed of conveyance of land referred to in the last case were, by the request and with the consent of both parties, returned to their respective owners, viz.: the note of hand for £50 to Mr. Bannatyne for McDermot,263 and the deed of conveyance of land to Mr. McKenney. [C]164

General Quarterly Court, May 18 th 1869 Case I

François Goselin versus James Clouston [Case 431b] 264 For the Recovery of a Horse and Damages thereon, continued from Last Session Defendant having relinquished all claim to the horse,265 the Court ordered his delivery to the Plaintiff, and gave Judgment against Def. for the Costs: £9.00.04, pd. in Court. II

Maurice Lowman versus George Garrioch [Case 435] For Debt and Damages: £14.00.00 Judgment for Plaintiff: Costs: viz.: Jury, 4 Witnesses, 5 Summons:

1.00.00 4.17.06 £5.17.06

III

The Executors of Wm. Inkster versus Eliziard Lagimonière [Case 417b] 266 For Damages arising from Injury to and Loss of Goods in Transport from St. Cloud’s to Red River, viz.: Damages: 82 kegs gunpowder: £256.05.00 “ to harness: 5.00.00 “ to pearl barley: 2.10.00 £263.15.00 The fol[lowin]g witnesses were examined, viz.: For the Plaintiff: Dond. MacDonald, Mr. Begg, Geo. Newcome, J. M. House, Wm. Adhemar,

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R. Pritchard, Baptiste Charette, Salomon Jeanvenne, Jacques St. Denis, Baptiste Laderoute, Mr. Lowman and Mr. Strang (by Affidavit); and for the Defence: Colin McDougal, Mr. Bannatyne, Josh. Lagemonière, Jeremiah Kennedy, Jas. McKay, Baptiste Bruce, John Grant, Mr. Hanford and E. L. Barber. The Jury, after hearing the evidence on both sides and the Judge’s charge, retired to their room and, after [C]165267 a long deliberation of upwards of four hours, returned to the courtroom, and through their Foreman Richd. Salter gave the following Verdict, viz.: “We find that Lagemonière received the powder in a damaged condition at St. Cloud’s, and is not liable for it: but we find that he damaged the harness, and is liable for the amount claimed thereon, viz.: £5. The costs of the whole suit to be equally divided between the parties.” Judgment for Plaintiff: £5.00.00 Costs of both parties – £20.05.04 – equally divided, and settled in Court. IV

Henry McKenney versus George McKay [Case 436] For Debt £10.00.00 Judgment for Plaintiff, with Costs: £11.03.06 V

Patrice Berland 268 v. Josh. Miliène Genton and Josh. Miliène Genton v. Amable Marion [Case 437a] 269 For Debt: £17.04.00 Amable Marion asked for a postponement of this case on account of the unavoidable absence of some important witnesses. It appeared to be a case brought for the purpose of determining the respective liabilities of the parties in a certain transaction wherein Amable Marion received goods from Cowley to the amt. of £30, Genton being security for the payt. in default of Marion, and Berland Security in default of Genton. Marion stated that he paid to Cowley, on two occasions, in furs to [the] amount[s] of £12.16.00 & 17.04.00, but without recalling the Note of Genton & Berland. After the secd. payt., the note was presented to Berland

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for payment of £17.04.00 which, Marion [C]166 alleges, was not marked on the note by Cowley as it should have been when he paid it. Berland, believing that the balance of £17.04.00 was still due, immediately paid it to Cowley, who marked that amount on the back of the note. By which, if what Marion alleges be true, it would appear that Cowley was overpaid to the amt. of £17.04.00. Berland claimed that amt. from Genton; and Genton fell back upon Marion who, on his part, denied his liability on the ground that he had already paid Cowley. And it is to prove this that the witnesses referred to above are wanted.270 Commentary This interesting little vignette illustrates the settlement’s commercial practices, and describes what appears to have been a careless business accident. Marion, wishing to buy goods on credit from Cowley, offered a promissory note, signed by Genton as guarantor, in payment, but Cowley insisted on a second guarantor, and Berland (also known as Bréland) agreed to sign the note in that capacity. When Marion made the first, partial, payment under the note, Cowley should have recorded that fact on the document – and probably did – both as a memorandum to himself and as notice to possible future holders that the note had diminished in value. When the second, and final, payment was made, Cowley should have given the note back to Marion, torn it up, or recorded that payment on it as well. It seems that he did none of those things but kept the note among his papers, likely carelessly rather than deliberately, and then forgetfully presented it on its due date to Berland for payment of what the document indicated to be the balance due. Persons who, like Genton and Berland, signed other people’s notes as guarantors were known as security or accommodation parties. They did so sometimes for a fee and sometimes as a favour. Case VI

John Dease versus Alexandre Morin [Case 438] For Debt: £102.05.08½ The Plaintiff, not appearing, was Nonsuited, and the Court gave Judgment for Defendant’s Costs. VII

Xavier Morin versus David Tait [Case 439] For Debt: £12.14.00 The Plaintiff, not appearing, was Nonsuited.271

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VIII

J. M. House versus Roderick Ross [Case 419b] 272 For Debt: £7.08.00 bal. of amt. sued for in Novr. by Default Judgment for Plaintiff for £7.08.00. IX

Benjamin Lagemonière versus Amable Marion [Case 433b] 273 Damages: £25 for consequences of Assault & Battery. Contd. from Feb. Session The Jury, having heard the evidence on both sides, retired and, having deliberated for a considerable length of time, returned to say that they could not agree, and having unanimously declared that there was no hope of their ever agreeing, they were dismissed.274 [C]167

[Note:] May 20th: Mr. McKenney presented an a/c from C. Garratt for the sum of £2.02.00 and the Court authorised Mr. McKenney to pay the said sum of £2.02.00 to C. Garratt.275

*May 21 st* [F. E. Kew versus John Schultz] [Case 354c] 276 Before proceeding to the business of the day, the Judge said that he had received by yesterday’s mail a letter from F. E. Kew, London, making application to this Court for a rehearing of the case of F. E. Kew v. John Schultz, which had been tried twice already. He further said that the grounds on which the application was made were set forth in a statutory declaration made by Mr. Kew before the Lord Mayor of London, which had also been placed in his hands, and which, with Mr. Kew’s letter, he now desired the Clerk should read for the information of the Court. Mr. Kew’s letter and the statutory declaration having been read, the Judge, after explaining the nature of the statutory declaration and of Mr. Kew’s application generally, said: “There is no doubt that these statements furnish matter for the most serious consideration. The conclusion is inevitable that there is falsehood somewhere; and it is most important that the matter

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should be thoroughly cleared up, so that if there has been any miscarriage of justice a proper remedy should be applied. But in Mr. Kew’s absence, and there being no agent here to represent him, and the other party besides not being in Court, the Court is not in a position to make any definite order on the subject of the trial. Mr. Kew, if he had been here, would have been required to swear an affidavit of similar purport to the statutory declaration that would have been communicated to the other party, and on his lodging his statement on the subject of a new trial the Court would then have had the means of judging of the application. Or Mr. Kew might have given notice to the other party of his intention to apply for a new trial, and on both parties or their agents appearing here and arguing the motion on both sides, the Court would then have been able to dispose of the application. But until these steps are taken by Mr. Kew or his agent, it does not appear that the Court can do more in the matter than thus to notice Mr. Kew’s letter and statutory declaration.” [C]168

General Quarterly Court, Augt. 19 th 1869 Case 1st

F. C. Mercer, Plaintiff – George Racette, Defendant [Case 440] For £25.09.00, amt. of a Note of Hand signed by the Defendant Judgment for Plaintiff: Costs of Suit:

£25.09.00 3.09.00 £28.18.00

2nd

Honoré Pariseau, Plaintiff – Goodwin Marchand, Defendant [Case 441] For £16.00.00, viz: £10 for Non-Delivery of an Ox purchased from Deft. by Plaintiff, and Damages to amt. of £6 for the Loss of the Service of the said Ox Judgment for Plaintiff: and his Costs:

£14.00.00 3.13.06 £17.13.06

3rd

James McKay, Plaintiff – William Taylor, Defendant [Case 442] For £25.00.00 Damages for Trespass

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Defendant not appearing when called, Constable Wilson swore to having served the proper Summons upon him personally, and the Court gave [Judgment] in favor of Plaintiff: Judgment by Default: and his Costs:

£25.00.00 8.15.05 £33.15.05

4th

Eric Anderson, Plaintiff – Ryder Larsen, Defendant [Case 443] For £200, being the amount of two Notes of Hand for £100 each, signed by the Deft., and due May 1st and July 1st respectively, with Interest from date of maturity The Court gave [Judgment] for Plaintiff: Judgment for £200 and Interest at 5 pr. ct.: £202.04.05 and his Costs: 3.12.00 £205.16.05 277 5th

W. H. Lyons, Plaintiff – Celestin Thomas, Defendant [Case 444] For £13.09.07, amount of a Note of Hand signed by Deft. The Defendant not appearing, Constable Mulligan swore to having served him personally with the proper Summons, and the Court gave [Judgment] for Plaintiff: Judgment for: and his Costs:

£13.09.07 1.05.00 £14.14.07

[C]169278 Case 6th

James Wishart, Plaintiff – Peter Taylor, Defendant [Case 445] £100 Damages for Slander279 Plaintiff stated that the Defendant had falsely and maliciously circulated certain reports to the effect that Plaintiff had stolen and killed a certain animal belonging to James Bruce. The Defendant pleaded justification, and absence of any malicious feelings on his part.280

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Several Witnesses were called for both parties. After hearing the evidence on both sides, the Jury gave a Verdict for the Defendant and his Costs, and the Court gave Judgment for Defendant & his Costs: £3.09.08281 7th

Joseph Dacotah, Plaintiff – John Grant, Defendant [Case 446] £100 for Breach of Contract On enquiry into this case, it was discovered that the contract referred to had been entered into by the Plaintiff and James McKay, and that therefore the Defendant in this case was not liable for it in any way. The Plaintiff was therefore Nonsuited.282 8th

Matthew Cook, Plaintiff – W. D. Lane, Defendant [Case 447] For £69.04.00, viz.: £44.04.00 as a balance due on a Hay Contract between the parties, and £25 as Damages for the Non-payment of the above Balance when due. Plaintiff stated that he had contracted to supply Defendant with 900 loads of hay at 3/6 pr. load; that after he had hauled 854 loads Defendant said that he required no more, and that he then ceased hauling the said hay; that he claimed for the 854 loads delivered £149.09.00, of which Defendant had paid £105.05.00, leaving an unpaid bal. of £44.04.00, which Defendant refused to pay; that in consequence of its nonpayment Plaintiff had sustained serious loss and damage, for which he claimed £25.00.00 more, amounting in all to £69.04.00. [C]170283 Defendant confessed to owe Plaintiff 16.00.01; and further stated that, having reason to believe that he had not received the quantity of hay for which payment was claimed by the Plaintiff, he had caused it to be remeasured; and found only 695 loads which, at 3/6 per load, would amount to £121.12.06; that he had paid Plaintiff £105.12.05 thus leaving a balance of only £16.00.01, which he had always been and was now ready to pay. Several witnesses were called by both parties, and after hearing all the evidence the Jury gave the following Verdict: “We find the Plaintiff is

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entitled to the unpaid balance of £43.16.07, and the costs of this suit, but not to any damages.”284 The Court then gave [Judgment] in favor of Plaintiff: Judgment for: £43.16.07 and his Costs: 7.12.02 51.08.09 9th

Paul Laronde, Plaintiff – William Drever, Defendant [Case 448] For £10, being the value of an Ox, said to have been taken from the Plaintiff by Defendant, and £6 Damages for the loss of the Service of the said Ox. Defendant acknowledged having taken the ox in question, but declared him to be his own. Witnesses having been heard on both sides, the Jury gave a Verdict for the Defendant, and his costs, and the Court gave Judgment accordingly. 10th

Robert Tait, Plaintiff – Pierce Barron, Defendant [Case 449] For Debt: £10.12.09 This case was referred by both parties to the Bench.285 The Court, having enquired into the matter, gave: Judgment for the Plaintiff for: and ½ Costs of the suit:

10.12.09 2.08.09 £13.01.06

[C]171 Case 11th

Robert Tait, Plaintiff – Alexr. Nault, Defendant [Case 450] For Debt: £21.14.04 The Defendant not appearing, the Constable was sworn to the fact of his having served a Summons in the proper way on the Defendant, and the Plaintiff having sworn to the correctness of his account, the Court gave Judgment by Default:

General Quarterly Court of Assiniboia Records, 1866–69

For the Plaintiff: and his Costs:

571

£21.14.04 1.03.06 £22.17.10

Case 12th

Hugh F. O’Lone, Plaintiff – Alexander Begg, Defendant [Case 451] 286 For £50 Damages for Breach of Contract to import a certain quantity of liquor into Red River. Defendant made application to have the case postponed on the ground that he was not at present in a position to defend himself because: 1st, having had no previous intimation from Plaintiff of his intention to raise the present action, he was in total ignorance of the nature of the case; and 2nd that he had no means of producing the necessary witnesses, as they were not at present in the country. The Plaintiff at first objected to a postponement, but at length agreed to have the case put off to the Novr. Session; but asked to be allowed to amend his plea if he should see to fit to do so in the meantime. The Court then ordered that the case be postponed to the Novr. session, each party paying his own costs for the present; that the whole question of costs abide the final issue of the case; that the Plaintiff may amend his plea by either increasing or diminishing the amount now sued for; but that he shall give to the Defendant, previous to the next Session, such timely notice as shall enable him to prepare a defence. [C]172 Case 13th

W. B. Hall – Appealing from Decision of Petty Court [Case 452a] [Selling Liquor to Indians] W. B. Hall was convicted before the Middle District Petty Court of selling intoxicating liquor to Indians, and judgment was given against him for £20. Against the judgment W. B. Hall appealed to this Court on the grounds that the judgment was given in his absence, and that he could bring rebutting evidence. The Judge, having read the report of the case before the Petty Court, said that although he could not see that any advantage could accrue to the Appellant from a re-hearing of the case; yet, as the Court was always

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unwilling to refuse an appeal of this kind, the case would be heard tomorrow. W. B. Hall then wished the case postponed to the Novr. Session. The case was finally postponed to the next Novr. Session, W. B. Hall having been notified that this case would be the first civil case called at that session.287 [C]173

General Quarterly Court, Novr. 18 th 1869 288 Judge Black289 Case 1st

The Queen v. Flora Saunders [Case 453] For the Murder of her own Infant Child on or about Sept. 25th 1869. The Grand Jury290 returned a True Bill of Indictment, and the Prisoner, being arraigned, pleaded Not Guilty. A Petty Jury, being empanelled and sworn, after hearing the evidence and the Judge’s charge, returned the following Verdict through their foreman, Mr. John Taylor: “Guilty of concealment of birth.” The Court then passed Sentence as follows: “That Flora Saunders be imprisoned in the common gaol for the space of six calendar months from the date of her commitment Octr. 7th 1869” Commentary Recorder Black’s charge to the grand jury, no doubt repeated in large measure to the petty jury, offers insight into the duplicitous treatment this painful type of case received at a time when infanticide was not formally distinguished from murder: [T]he body of the child was found floating in the river near Lower Fort Garry in October last, with every indication that the infant had been strangled and afterwards thrown into the river. The medical evidence is expected to show that the child had been born alive, and that, without doubt, respiration had been established in the lungs. A woman of the name of Flora Sanders (formerly Hope), a widow, was suspected to be the mother – and also the murderer – of the child, and was committed for trial on the verdict of a Coroner’s jury, charged with having murdered her child in the manner described. You need not, it appears to me, have any apprehension in finding against her this Bill of Indictment for murder, if you are so disposed. She may be tried on that charge. But it does not follow that she is to be convicted of murder, or acquitted.

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573

According to the law, it would be quite competent for the Petty Jury to find her guilty only of the minor offence of concealing the birth of the child – an offence for which she might be imprisoned for two years. A great deal has been said regarding the present state of the law on infanticide or child murder. Many claim that there ought to be some alteration in the law, and that a mother acting the unnatural part of murdering her own offspring is not to be dealt with as an ordinary cold-blooded murderer. High authorities have given it as their opinion that no woman in a sane state of mind will murder her own offspring, and urge on that ground some modification of the law. As it stands at present, that law is so severe that, generally speaking, juries refuse to convict, and in consequence offenders often escape punishment. It has also been urged that some means should be taken of bringing home responsibility and punishment to the father of the child; and that there ought to be some institution prepared for the support of these unfortunate women – and that for that support the father ought to be responsible, thereby taking away from the woman one of the motives for infanticide. It is found in England that this crime is most prevalent in one class – not so much the upper, middle or poorer class, but a class of persons who, whatever their position, can escape observation. And in a country like this there are considerable facilities for this crime. I put these considerations before you, gentlemen, merely to give you a comprehensive view of the subject. But of course you have only to deal with the law as it stands, and under it the killing of a child is dealt with the same as that of any other person.291 It seems likely that the grand jury indicted the accused – as the recorder undoubtedly intended – in the expectation that the petty jury would, as it did, adopt the recorder’s suggestion to convict her of the lesser offence, all evidence to the contrary notwithstanding. Was it mercy or pragmatism – or both – that dictated this approach? Case 2nd

The Queen versus W. J. Allan, Tho. Scott, Francis F. Moggridge, 292 and George Fortney [Case 454] For Aggravated Assault on Mr. John Snow, Superintendent of the Red River Road,293 Oct. 1st, 1869 A True Bill of Indictment having been returned by the Grand Jury against the Prisoners, they were arraigned and pleaded severally Not Guilty. The Petty Jury returned the following Verdict through their Foreman, Mr. John Mooney: “We find Tho. Scott and George Fortney Guilty of Assault,

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but recommend them to the mercy of the Court, and we find F. Moggridge and W. J. Allan Not Guilty.” The Court gave Judgment as follows: “that Tho. Scott and George Fortney pay each a fine of Four pounds (£4) sterling in thirty days,” Joseph M. Coombs, counsel for the prisoners,294 being security for the said payment. Commentary The Nor’-Wester for 26 October 1869 had reported the incident that led to this prosecution: Aggravated Assault. There has been a temporary stoppage of work upon the Lake of the Woods road, owing to the disorderly conduct of a number of the employees on that work. It would seem that from some cause, real or supposed, the men struck from work on two several occasions, and ultimately determined to compel Mr. J. A. Snow, the Superintendent, to pay them for the time they were off from work. This demand was refused by Mr. Snow, and on the 1st inst. he was seized by a number of the men, and dragged into a neighboring stream for the purpose of compelling him to come to terms under pain of being immersed in the water, when, under the advice of Mr. Hamilton, he agreed to comply with their demands. Mr. Snow then paid the men the whole of their demands, and, coming immediately into town, obtained warrants for the rest of the ringleaders. Constables were sent out to bring them in, but they met the party they were in search of a short distance from here, on their way to the town. Four were arrested and placed in jail, but they were ultimately liberated on bail. On the Tuesday following, they were brought before Justices Cowan and Goulet for examination upon a charge of robbery. Witnesses upon both sides were heard, and as the assault was undeniable they were remanded on bail for trial at the November Court under a charge of aggravated assault.295 Governor McTavish’s earlier report to London about the matter296 had mentioned that although Snow’s payment to the men was made “under protest,” the magistrates had not considered a robbery charge to be justified, and had substituted a charge of assault. Recorder Black’s charge to the grand jury explained the legal reasoning upon which that decision – probably suggested to the magistrates by Black himself – was based: Mr. Snow thought the offence ... something more serious than assault – that it was very like robbery. But ... though these men used unlawful means to secure the rights, they were yet endeavouring to secure what they believed to be money belonging to them. Their object was not to rob Mr. Snow, or to take from him

General Quarterly Court of Assiniboia Records, 1866–69

575

unjustly anything that did not belong to themselves. Though the course they took for the attainment of these rights was most unlawful, improper, and irregular, they had rights. And therefore the magistrates decided not to commit them for the higher offence of robbery.297 The same letter in which McTavish described the assault on Snow informed the London office of another, and much more portentous, disturbance of Canada’s preparations to acquire jurisdiction over Rupert’s Land: I am also sorry to have to inform you that some of the people here have stopped one of Col. Dennis’ surveying parties ... The men who have thus interfered say they know the survey could proceed without injury to anyone, but stopping it is always a beginning; and they are desirous of letting the Canadian Government know that it is not wanted by them – that they consider if the Canadians wished to come here the terms on which they were to enter should have been arranged with the local Government here, as it is acknowledged by the people in the Country. The latter event was, of course, the opening salvo of the resistance led by Louis Riel Jr to the premature and, as the resisters saw it, unlawful occupation of Rupert’s Land by Canadian authorities. One of the two men convicted of assaulting John Snow would, before long, resist the resistance in a manner that profoundly affected the future history of Rupert’s Land and Manitoba. [C]174298

W. B. Hall – Appellant from decision of Petty Court [Case 452b] 299 [Selling Liquor to Indians – Appeal from Conviction] This case having been referred to this session by W. B. Hall, he was notified that it would be the first civil case300 on the docket. The case being now called, W. B. Hall does not appear, but a letter is presented to the Judge from W. B. Hall, in which the said W. B. Hall declares his intention not to appear for various reasons therein specified. The Court then gave Judgment by Default for £22.04.00, viz.: Judgt. of Petty Court: Deposit for costs of Appeal, forfeited: Cost of three Summons:

£20.14.06 1.01.00 09.06 £22.04.00

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Commentary Although listed last in this session’s court records, this case actually came on first, and it was accompanied by a statement from the bench by Recorder Black reflecting both the facts of the Hall case and the extraordinary circumstances under which the court session was taking place. Black explained that William Hall, in requesting this appeal from his conviction by the petty court for selling liquor to Indians, had claimed he was employed by Dr John Schultz when he did so and that, according to Canadian law, employers, not employees, bore the legal responsibility for such infractions. The recorder then told the court that those circumstances, even if true, would not excuse an employee in Assiniboia: “[W]e are not under the law of Canada, but our own laws and the laws of England, except as they are altered by local enactment.” Assiniboia’s local law, he pointed out, “does not enquire whether the act had been done in one capacity or another. It says ‘any person’ furnishing liquor to Indians shall be punished.”301 The appellant was not in the courtroom to hear the recorder reject his defence. He had written to the court before the hearing, stating that he would not appear as scheduled “owing to the present unsettled state of the country.” He referred, of course, to the fact that Louis Riel and his followers were in control of the Red River Settlement by that point. Riel had seized Fort Garry on 2 November, and had commandeered its arsenal on 6 November. The final meeting of the Council of Assiniboia (which had been chaired by Recorder John Black since December 1868 due to Governor McTavish’s gravely declining health) had taken place on 30 October; and the ailing governor’s desperate proclamation of 16 November, condemning the uprising as illegal, had been ignored. The “Convention of 24” – comprising representatives from both French and English parishes whom Riel had summoned to the courthouse the same day as the governor’s proclamation – was still in session but had adjourned temporarily to allow the regular court session to take place. No one doubted, however, that the settlement’s constituted authority had ceased to function, except – as in this instance – by sufferance of the resistance leaders. On the basis of those developments, the appellant Hall had contended in his letter to the court that “justice cannot under existing circumstances be meted out” and had requested that the “unpleasant case against me [not be] called till it can be done with a prospect of fairness to all concerned.” The recorder rejected Hall’s analysis of the situation: I know nothing in the circumstances of the country to make it unlikely, much less impossible, that justice should be done to Mr. Hall; and I cannot see why he should be so apprehensive of injustice ... [I]t is a very poor excuse for him to tell us that the case is unpleasant, and the country unsettled. I say that the Court sits here under circumstances which enable us to mete to him all the justice and law to which he is entitled. We have the same authority and power to dispense law

General Quarterly Court of Assiniboia Records, 1866–69

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and justice here that we ever had ... [I]f it had been clear in my mind that Mr. Hall, or anyone else appearing here, was not to get justice, I hope I would not sit one moment longer. Those brave words seem to have been accurate, as far as they went. It is probable, however, that the reason there were no civil cases on the court’s docket for this session was that Riel was willing to allow the court access to its courthouse for only long enough to deal with pending criminal cases. Certainly, the General Quarterly Court did not sit again until November 1870, after both the Hudson’s Bay Company and the Riel regime had been replaced by officials of the new Province of Manitoba.

6 General Quarterly Court Records for Manitoba, 1870–72

A full year had passed – almost to the day – since Recorder John Black adjourned the final session of the General Court of Assiniboia, and the Council of 24 returned to the little Red River courthouse to resume its tense deliberations about the settlement’s future. Since then, the insurrection had intensified and counterinsurgents had been suppressed, driven away, or – in one case – killed. An attempt by Canadian authorities to seize the reins of government prematurely had been frustrated. Subsequent negotiations with Canada had, however, brought Rupert’s Land into Confederation and created the Province of Manitoba. Meanwhile, the Provisional Government headed by Louis Riel Jr had, with Canada’s approval and impressive effectiveness, administered the area in a caretaker capacity until a provincial administration could be put in place. Although the Provisional Government’s services included some adjudication, no formal records of such work have survived. The new administration of Lieutenant Governor Adams Archibald arrived on 2 September 1870. While Archibald’s intentions were probably peaceable, he was unfortunately preceded, a little over a week previously, by a large troop contingent looking for “rebel” blood. That had caused Riel and his closest collaborators to flee at the last minute. Factional violence darkened the first weeks of Canadian occupation. Despite those ugly incidents, Lieutenant Governor Archibald and a handful of advisers cobbled together a rudimentary but effective administration. Their task would have been easier, however, if they had been allowed to adopt the Provisional Government’s laws and institutions. Canada’s responses to pressing problems were also politically selective: whereas Indian treaties were negotiated quickly, and compensation for the Provisional Government’s opponents was promptly provided, the amnesty promised to Riel’s supporters was very slow in coming, and the Halfbreeds’ constitutionally entrenched land guarantees were never fully honoured. Archibald’s government faced a menacing external crisis in 1871: imminent invasion by an apparently substantial army of “Fenians” organized by Riel’s former colleague W.B. O’Donoghue. Although a pathetic tin-pot affair in actuality, it had

General Quarterly Court Records for Manitoba, 1870–72

579

serious consequences. On the positive side, the solidarity with which it was faced by most Manitobans – including Riel and the Métis – confirmed their fealty to Britain and Canada. Negatively, Archibald’s public show of gratitude for Métis loyalty outraged anti-French militants, and seriously exacerbated tensions. Those tensions probably delayed the granting of full responsible government to Manitoba; but there was, in any case, very much to do before a former corporate fiefdom could become a self-governing province. Creating and staffing numerous major and minor governmental organs while producing a basic framework of laws was laborious, time-consuming, and politically daunting work. Designing and staffing new courts took until the middle of 1872. Until then, the General Quarterly Court and petty courts were temporarily resurrected, and former Recorder Francis Johnson presided over the interim arrangements.1 [C]175

General Quarterly Court [of Assiniboia] 2 Novr. 17 th, 1870 3 Judge Johnstone [sic]4 Presiding Case 1

The Crown versus Ryder Larsen [Case 455a] For the Murder of Thos. Johnstone The Court ordered that a warrant be issued for the arrest of the said Ryder Larsen, and that he be bound in his own recognizance to the amount of £100 Stg., and two sureties to the amount of £50 Stg., each to appear at the next session of this Court5 – said warrant and bail-bond fyled of record (6) and (7).6 Commentary Ryder Larsen, one of a group of Scandinavian workers brought to Rupert’s Land years previously, first came to public attention when he set up a photography studio at St Andrew’s in early 1869.7 By August of that year, he had also come to the court’s attention, being ordered to make good his default on a large debt.8 Now he was in greater trouble still. The death of Thomas Johnstone occurred on Christmas Eve, 1869. According to the New Nation, which reported on the inquest convened by Coroner Bird,9 Johnstone had been among a group of men “carousing at the house of Peter Pruden.” Ryder Larsen was another of the carousers. After a while, an argument broke out that threatened to become violent – not between Johnstone and Larsen, but between Peter and William Pruden. William’s wife, in an attempt to prevent a tragedy, grabbed her husband’s gun and took it to the home of a neighbour, where it

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was hidden. William, undeterred, then took off after Peter with a knife, and the latter armed himself with a sword. Friends on both sides intervened and restrained the combatants. But by that time a subsidiary battle was developing within Peter’s house between supporters of the principals: Johnstone for William; Larsen for Peter. It is not known how Johnstone was armed, if at all; Larsen had a revolver. A witness outside the house said that, although he could not see the adversaries, he heard Larsen say: “If you don’t leave off, Thomas, you will be a dead man.” Shortly thereafter, the same witness testified: “I heard the shot and saw the flash through the key-hole.” A silence fell, and then Thomas Johnstone emerged from the house, saying to the witness as he staggered past, “He has given me a sudden death.” The newspaper reported that Larsen “left for the interior next morning” in the company of a member of the Pruden clan. At that point in the colony’s history, there were no law enforcement officers to pursue him, or even to arrest him after he eventually thought better of flight and returned to town. According to an anonymously authored newspaper account reprinted in the Manitoban from the Montreal Gazette, Larsen attempted to surrender himself to Colonel Garnet Wolseley when the latter and his troops arrived at Red River, but was told that the colonel “had nothing to do with the administration of justice.”10 Upon Judge Francis Johnson’s arrival in the settlement, Larsen came forward again, was arrested, and then, as noted above, was released on bail pending trial at the next session. The same newspaper account states that although Larsen admitted making, on the night of the killing, a statement similar to that attributed to him above, it was a mere warning to Johnstone that if he didn’t leave soon, someone else – not Larsen – was likely to kill him. The actual killer, he claimed, was his – Ryder’s – fatherin-law. By turning himself in, the accused apparently thought he could persuade a jury to believe his version of events. Ryder Larsen would never come to trial, however.11 Case 2

The Crown versus [blank] Cameron [Case 456] For Shooting Fredk. J. Smith The Prisoner being produced, it was moved by counsel on his behalf that he be discharged as on account of his extreme youthfulness. He could not be held responsible for his actions. The Court ordered his discharge.12 Case 3

The Crown versus David Marshall [Case 457a] 13 For Stabbing George Rolph

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The Court bound the Prisoner in the sum of £50 Stg. to appear at the next session of this Court. [C]176 Case 4

Fredk. C. Mercer, Pltf. versus Joseph Nolin, Deft. [Case 387b] 14 Deft., under arrest for default in payment of a judgment said to have been rendered Feb. 20th, 1868, for £66.17.04. Copy of warrant fyled of record (8). On petition of Defendant (fyled of record (9)) praying that the said judgment be quashed, and all proceedings taken thereupon be declared null and void, the Court ruled that the Plaintiff appear at the next session of this Court to shew cause why said petition should not be granted. [C]177

General Quarterly Court Feby. 16 th, 1871 Judge Johnson Presiding Case 1

Peter Mor wich, Plaintiff versus Adam McDonald, Deft. [Case 458] 15 The Defendant did not appear when called, and the Court, on the motion of the Plaintiff, ordered that this case be referred to the next session of this Court. Case 2

Michael O’Donnell, Plaintiff versus Murdoch McLeod, Defendant [Case 459] 16 On motion of Defendant, by his Attorney, that this cause be referred to the next session of the Court, because the case had not been returned into the Court in due time to enable him to prepare a defence, and that no Jury had been summoned. The Court ordered that the trial of this case be deferred till the next session of this Court.

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Case 3

Andrew McDermot, Plaintiff versus Henry McKenney, Defendant [Case 460a] 17 [Absconding Debtor] The Plaintiff having made affidavit to the effect that Defendant was his debtor [in] the amount of £69.12.06 Stg., and was about to proceed beyond the civil jurisdiction of the Court, said Defendant was arrested [C]178 under a warrant (said affidavit and warrant being fyled of record No. 3) and held by bail under bond (fyled of record No. 4) to answer at this Court. On being now called, said Defendant does not appear. The Court ordered that his default be recorded. Commentary This case marked the ignominious departure from Red River of Henry McKenney, who had been, for many years, one of the Red River Settlement’s most prominent businessmen, as well as, since 1862, its sheriff. He had not gone far. Resigning his duties as sheriff, McKenney had, in May 1870, shipped the machinery from a failed Lake Winnipeg sawmill operation to Pembina and established a new mill and store there. Remarkably, he would be appointed sheriff of Dakota’s Pembina County on 9 June 1871, a little less than four months after this disgrace before the General Quarterly Court.18 Andrew McDermot would eventually recover what McKenney owed him with respect to this and other debts by issuing execution against property the absconding sheriff had left behind.19 If McKenney felt any shame by reason of these events, it did not deter his continued use of the General Court, and later the Queen’s Bench Court, to press his own legal claims in Manitoba.20 Nor did it prevent his renewed residence in Winnipeg, after the failure of his Pembina sawmill, between 1874 and 1876. Case 4

Fredk. C. Mercer, Plaintiff versus Joseph Nolin, Defendant [Case 387c] 21 The Plaintiff appeared to shew cause under a rule issued last term – and fyled of record (9) – why an informal judgment said to have been rendered in this Court Feby. 20, 1868 for £66.17.04 should not be quashed, and all proceedings thereupon taken [to] be declared null and void. Said Plaintiff did not proceed to shew cause, but withdrew his case, with permission from the Court to proceed against Defendant “de novo.”22

General Quarterly Court Records for Manitoba, 1870–72

[Marginal note:]

1872

July 6th

Levy: Attorney’s Fee: Clerk Fee:

Interest on $334.33 from 16 Feb., 1871 @ [illegible] pr [c.]:

583

$334.33 10.00 3.00 $347.33 27.58 $374.91 23

Case 5

John Schultz, Plaintiff versus Coldwell & Cunningham, Defdts. [Case 461] For Damages: £1,000 The Plaintiff, being called, did not appear, and the Defendants, by their Attorney, moved that judgment by default be rendered against Plaintiff. The Court ordered that issue be joined24 in vacation,25 and that the trial take place next term. [C]179 Case 6

Coldwell & Cunningham, Plaintiffs versus John Schultz, Defendant [Case 462] For Damages: $11.000.00 The Plaintiffs, by their Attorney, moved that this case be referred to the next session of this Court. The Court ordered that issue be joined in vacation, and that the trial take place at next term. Commentary William Coldwell and William Buckingham were the first owner-editors of the settlement’s first newspaper, the Nor’-Wester; and after Buckingham returned to Canada, Coldwell first partnered with, and then sold the paper to, Dr John Schultz. Schultz eventually divested himself of his interest as well. Coldwell returned to Winnipeg in the autumn of 1870, intent on establishing another newspaper in partnership with Robert Cunningham. The new partnership was publishing the Manitoban at the time this lawsuit and the preceding one were launched. It would be interesting to know the nature and the outcome of the dispute or disputes underlying this litigation (the Manitoban called them “Great Libel Suits”);26 but the parties seem to have resolved their differences outside the courtroom. The cases did not reappear before this court at the next session, or for the remainder of the court’s existence.

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Case 7

The Crown versus Ryder Larsen [Case 455b] 27 For Murder The Crown not being prepared to proceed with the prosecution, the Prisoner was released on bail under bond (fyled of record No. 22). Case 8

The Crown versus David Marshall [Case 457b] 28 For Stabbing The Court extended the Prisoner’s bail to the next session of the Court. Case 9

The Crown versus Thomas Collins [Case 463a] 29 For Stealing from the Person The Prisoner was committed for trial at the next session [C]180 of this Court. And, further, the Court ordered that said Prisoner may be released on good and sufficient bail being offered on his behalf to any Justice of the Peace, and that the Attorney General be notified. Case 10

The Crown versus Sarah Atkinson [Case 464a] 30 For Stealing from the Person The Prisoner was committed for trial at the next session of the Court. And the Court ordered that she may be released on good and sufficient bail being offered on her behalf before any Justice of the Peace, and that the Attorney General be notified. [C]181

General Quarterly Court May 16 th, 1871 Judge Johnson Presiding The following gentlemen, having been called and answering to their names, were duly sworn as Grand Jurors to serve on the Grand Jury, viz:

General Quarterly Court Records for Manitoba, 1870–72

2. John Gunn 3. William Johnstone 4. William Henderson 5. Denis Caplette 6. Baptiste Bruce

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1. Alexander Begg, Foreman 7. Archibald Johnstone 12. William Garrioch 8. David Hurcus 13. François Janot 9. Murdoch McIvor 14. George McKay 10. Baptiste Boyer 15. Malcolm Cummings 11. Norbert Lawrence

The said Grand Jury returned the following Bills of Indictment: 1. The Queen versus Ryder Larsen [Case 455c] Murder A True Bill (fyled 1) (cont. [C]182) 2. The Queen versus David Marshall [Case 457c] For Assault & Stabbing A True Bill (fyled 2) (cont. [C]183) 3. The Queen versus Sarah Atkinson [Case 464b] For Stealing from the Person A True Bill (fyled 3) (cont. [C]183 & [C]186) 4. The Queen versus Thos. Collins [Case 463a] Larceny No Bill (fyled 4) 5. The Queen versus John Thomson [Case 466] 31 Larceny A True Bill (fyled 5) (cont. [C]187) 6. The Queen versus James Warren [Case 467] Assault & Attempting to Shoot A True Bill (fyled 6) (cont. [C]185) 7. The Queen, versus James Lang [Case 468] For Feloniously Receiving Stolen Property A True Bill (fyled 7) (cont. [C]187)

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[C]182 8. The Queen versus Ryder Larsen [Case 469] &

Jonathan Yates [Case 470] Larceny A True Bill against Larsen (cont. [C]183) No Bill against Yates32 (fyled 8) 9. The Queen versus John Longbones [Case 471] For Assault with Intent to Maim A True Bill (fyled 9)33 (cont. [C]184) The Grand Jury also returned a written presentment (fyled 10), which was read in open Court. The Grand Jury were then discharged by the Court. Commentary It was a traditional responsibility of grand juries, in addition to determining whether persons accused of serious crimes should be brought to trial before petty juries, to inspect and report on the condition of jails and other public institutions, and to comment on such other matters of public importance as they saw fit. On this occasion, the Manitoban described the grand jury’s “written presentment” as follows: The Grand Jury handed in a presentment in which they thanked the Judge for the very valuable suggestions and instructions he had given them. They stated that, on visiting the jail, they found it entirely unsuited for the purpose for which it was used, and they recommended that prompt measures be taken for the erection of a jail and courthouse.34 They took occasion to compliment highly Captain Villiers and Lieutenant De Plainval, and the men of the police force, for the manner in which the duties of that force were discharged; and recommended that in the public interest it would be wise to increase rather than diminish the number of men. The large number of licenses issued to dealers in spirituous liquors throughout the Province during the year was strongly condemned. There are, added the Grand Jury very sensibly, far too many saloons in Manitoba, and far too few eating houses for the accommodation of the public; and a wholesome restraint placed on the number of drinking shops might have a tendency to increase the hotel accommodation. The Jury further referred with pleasure to the increased commercial activity noticeable, another new steamer having been placed on the route between Fort Garry and the States, and a highway between Lake Superior and Fort Garry having been opened last year. In view of the emigration riches looked for, the Grand

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Jury expressed concern at seeing no preparations going on for the reception of emigrants in the way of sheds.35 The Court then proceeded to try the following cases: 1

The Queen, versus Ryder Larsen [Case 455c] 36 For Murder Ryder Larsen, being called, doth not appear; and his bailmen, John Schultz and Charles Garrett, each bound in the sum of £50 as by bail bond fyled of record (22), being severally called, do not appear. The Court ordered: “That a bench warrant be issued for the arrest of the said Ryder Larsen, and if arrested that he be brought to the next session of this Court to be tried according to law.” Commentary In the previously mentioned newspaper story reprinted in the Manitoban from the Montreal Gazette in December 1871, the anonymous author claimed to have been in Pembina on 20 May 1871, and to have been told that Larsen was arrested there for attempting to cross the border without paying customs duties, and was subjected to extortion by dishonest Pembina magistrates.37 [C]183 Case 2

The Queen versus David Marshall [Case 457c] 38 For Assault and Stabbing The said David Marshall, being bound in his own recognisance in £50 to appear at this session, being now called doth not appear. The Court ordered that a bench warrant be issued for the arrest of David Marshall, and if arrested he be produced at the next session of this Court to be tried according to law. 3

The Queen versus Sarah Atkinson [Case 464b] For Stealing from the Person

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The said Sarah Atkinson, being called, did not appear, and the Court ordered that a warrant be issued for her arrest, and that if arrested she be brought before the Court for trial. The warrant was issued accordingly. (cont. [C]186) 4

The Queen versus Ryder Larsen [Case 469] For Larceny The said Ryder Larsen, being called, doth not appear. The Court ordered that a bench warrant be issued for his arrest (see Case 1). [C]184 Case 5

The Queen versus John Longbones [Case 471] For Assault with Intent to Maim The Prisoner John Longbones being produced at the bar; the Court found that he, being an Indian speaking the Indian language, an Interpreter was necessary. Alexand. Isbister was accordingly sworn to interpret truly & faithfully in this cause. The Indictment (fyled 9) being read to the Prisoner, he was asked to plead, and said “Not Guilty,” and further said that he was ready for his trial. Whereupon, a Jury was called to try the cause, and, the Prisoner having declined to exercise the right to challenge, the following jurymen were empanelled & sworn, viz.: 1. James Mulligan 2. Charles Land 3. Pierre St. Germain 4. William Ross

5. Alexr. Bannerman 6. Philip McGuire 7. William Johnstone 8. Norman Matheson

9. John Vincent 10. John Hodgson 11. Thos. Lambert 12. Rodk. Cook

Which Jury, having heard the case for the Prosecution and Defence [on] the indictment charging him, the said John Longbones, [that he] did assault his wife Annie Wells, and her did feloniously [and] unlawfully cut & wound, with intent to main and disfigure the said Annie Wells, being asked if they were agreed on their verdict, and what that verdict was, said, by their Foreman, James Mulligan: Guilty. The Court thereupon ordered the folg. sentence to be recorded: “That John Longbones be committed to the common jail, there to remain for the space of two years, with hard labour.”39 The Prisoner was then removed.

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Commentary The Manitoban report of the trial was vivid, and included allegations and rumours about the accused’s past behaviour that would not be countenanced today: An Indian Bluebeard. An Indian named John Longbones took his stand in the dock for trial. The story current as to his history is frightful, and may be stated thus in brief. He is passionate and jealous, and earned an unenviable notoriety soon after his first marriage by killing his mother-in-law. Not long after, he killed his wife also – or else she hung herself, driven to despair by his inhuman treatment. Another statement has it that he dispatched a second wife in a like manner. But that aside, he certainly made a murderous attack on his present wife, four months after marriage, and scalped her. And although she survived the operation, it left her with a hideous wound in the head. This filled up the measure of his crimes, and he was brought to justice by some Portage people, by whom he was arrested and handed over to the officers of the law. Longbones, as he stood in the dock, looked rather a “gentle savage.” His wife, Annie Wells, was a decently dressed slip of a girl, who spoke Saulteaux and English, and professed to be a Christian. She came forward and deposed: “Prisoner is my husband. He struck me on the head with a stick of wood, and then cut me with a knife in the head.” Here Witness took off the handkerchief which covered her head, and the hideous wound which she displayed, where she had been scalped, horrified all present. This was done, she said, at White Mud River, about four months ago. Every day, almost, her husband beat her. In reply to Prisoner, Witness said he was drunk when he struck her, and that he was jealous. Witness further stated [addressing the accused]: “The night you struck me I was out of my senses all night, and when I got up I was floating in blood. I gave you no provocation.”40 Longbones served only a few days of his two-year sentence. On 27 May 1871 Lieutenant Governor Archibald informed federal authorities, in a letter deploring the inadequacy of the province’s temporary jail, that “the Indian sentenced ... for scalping his wife alive made his escape from the police gaol ... This ruffian will go unpunished for a crime which has horrified everyone here ... [T]he escape of this villain will go far to destroy the good effect which his prompt apprehension and conviction had produced [on other lawbreakers].” The remaining prisoners were soon moved to temporary quarters leased from the HBC in Lower Fort Garry.41 [C]185

May 17 th, 1871 Case 6

The Queen versus James Warren [Case 467]

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For Assault and Attempting to Shoot The Prisoner James Warren, having heard the Indictment (fyled 6) [and] being asked by the Court to plead, said: “Not Guilty,” and further that he was ready for his trial. Whereupon, the following Jury were empanelled & sworn, viz.: 1. Philandre Bartlett 2. George W. Hodge 3. John Foulds 4. John Anderson

5. Willm. Gaddy 6. Joseph Arcand 7. John Sutherland 8. James Sutherland

9. Thos. Brown 10. Saml. Slater 11. Norman Matheson 12. Thos. McCorrister

Which Jury, having heard the evidence and charge, returned, through their Foreman Philandre Bartlett, a verdict against the Prisoner of Guilty. The Court then ordered the following sentence to be recorded: “That James Warren be imprisoned in the common jail of the Province for six months, with hard labour; and then to give two securities, of $100.00 each, to keep the peace for twelve months after the expiration of the said six months’ imprisonment; and that he be not released until he give such security.” Commentary The Manitoban commented, “Prisoner was placed on trial for having, on the 15th of March last, committed an assault on Pat Sullivan, and attempting to discharge a firearm at him ... In sentencing the Prisoner, the Judge animadverted severely on the Prisoner’s course, as shown by the evidence, since he came across the line, a deserter from the American army; and showed him that the Jury had taken a merciful view of his case in not bringing him in guilty of the felony [the firearm offence] of which he had been charged.”42 43

[C]186 See case 3 (cont. from [C]183)

The Queen versus Sarah Atkinson [Case 464b] 44 For Stealing from the Person45 The said Sarah Atkinson having been arrested, and being now produced, the Indictment charging her with the above crime on the person of Vital Turcotte was read to her. And, being asked to plead, [she] said: “Not Guilty,” and that she is ready for her trial. The following Jury were accordingly empanelled and sworn, viz.:

General Quarterly Court Records for Manitoba, 1870–72

1. James Mulligan 2. Willm. Ross 3. Josh. Marion 4. Alex. Bannerman

5. Thos. Lambert 6. Chas. Land 7. Pierre Parenteau 8. François Goslin

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9. Josh. Lambert 10. Pierre Canada 11. André Richot 12. Baptiste Lallemand

who, having heard the case, returned, through their Foreman James Mulligan, a verdict of Guilty. The Court ordered the following judgment to be recorded: “Sentence: that Sarah Atkinson be imprisoned in the common jail of the Province for six months with hard labour, and be then discharged.” [C]187 Case 7

The Queen versus John Thomson [Case 466] For Larceny – viz.: Stealing a Gun from Wm. Symeson The Prisoner John Thomson, having heard the Indictment, pleaded “Not Guilty,” and said that he was ready for his trial. The following Jury were then empanelled & sworn to try the case: 1. Philandre Bartlett 2. Willm. McBeath 3. Philip McGuire 4. Norman Matheson

5. Roderick Cook 6. Wm. Johnstone 7. Wm. Gaddy 8. John Anderson

9. John Hodgson 10. John Vincent 11. Baptiste Bercier 12. Xavier Morin

who, through their Foreman Philandre Bartlett, returned against the Prisoner a verdict of Guilty. The Court then ordered the following judgment to be recorded: “Sentence: that John Thomson be imprisoned in the common jail for six months, with hard labour, and be then discharged.” 8

The Crown Versus James Lang [Case 468] For Receiving Stolen Property The Prisoner James Lang,46 having heard the Indictment, pleaded “Not Guilty,” and said, in answer to the Court, that he was ready for his trial; whereupon the following Jury were empanelled and sworn, viz:

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1. Philandre Bartlette 2. Josh. Marion 3. Wm. Ross 4. Alexr. Bannerman

[C]188 5. Wm. McBeath 6. John Vincent 7. George W. Hodge 8. Thos. Lambert

9. Robt. McBain 10. Thos. Brown 11. John Anderson 12. Rodk. Cook

who returned against the Prisoner, through their Foreman Philandre Bartlette, a verdict of Guilty. The Court then ordered the following judgment to be recorded: “Sentence: that James Lang be imprisoned in the common jail for six months with hard labour, and be then discharged.” Commentary This prosecution was related to the larceny charge against Ryder Larsen (case 469, [C]183). The Manitoban told the story: On Wednesday, a week ago, the officers residing in Larsen’s building,47 Winnipeg, found that two sets of double harness, one carriage harness and bells, two halters, a horse blanket, saddle, and three canvas tents, had been stolen from the premises. A search warrant having been taken out, Capt. Villiers48 placed some of his men on the track, and before long the missing property was found in Lang’s saloon on the Assiniboine near the town. Larsen and Lang, who were found there, were arrested and, on the examination before [magistrates] Mr. McDermot and Mr. Bannatyne, it appeared from Lang’s evidence that a soldier named Yates had assisted Larsen to convey the property there. Yates was subsequently sent to the magistrates by Col. Jarvis49 for examination; and the evidence against him was held to be sufficient to prove him an accomplice, and he was sent back to the Col. to be taken care of, as the prison was too full.50 Some plated ware, also supposed to be stolen, was found at Lang’s, and one of the rifles recently advertised for by Col. Jarvis as having been stolen from the barracks.51 Lang did not serve his full sentence. A few days after his conviction some of his friends presented Lieutenant Governor Archibald with a generously subscribed petition –accompanied, surprisingly, by a supporting certificate from Police Chief Frank Villiers – calling for Lang’s sentence to be mitigated. Archibald sought the opinion of Judge Johnson, who, impressed by what seems to have been new evidence in Villiers’s certificate, concluded, “I see no reason why the petition should not receive favorable consideration.” The lieutenant governor accordingly informed Ottawa authorities that “[i]f the prerogative were in my hands, I should use it to remit the residue of the sentence.” However, he added, “If I recollect aright, ... the prerogative

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of pardoning is not delegated to Lieutenant Governors.”52 He therefore left the matter in federal hands. Notified on 29 August that the minister of justice agreed with his conclusion, Archibald ordered Lang’s immediate release.53 Case 10 [sic: 9]

Henry McDermot, Plaint. versus Henry McKenney, Deft. [Case 460b] 54 For Debt: £69.12.06 The Deft made default, last session (see record). On behalf of the Plaintiff in this cause it was moved that judgment by default be recorded in favor of said Plaintiff, Henry McDermot. The Court ordered: “That judgment by default for £69.12.04 [sic: 06] in favor of Henry McDermot, the Plaintiff be recorded.” [Marginal note:] 1872: April 15th writ of execution issued for $348.12 Debt 92.00 Costs $440.12 24.20 Interest from 17 May, 71 5.00 Fee $469.32 Note The foregoing case was the final civil lawsuit recorded in volume C of the General Court records. The remaining cases in that volume were criminal prosecutions. Apart from the foregoing case, all General Court civil cases from May 1871 to August 1872 can be found in volume D. For the remaining General Court sessions recorded in volume C, any civil cases tried at the same session will be cross-referenced to volume D by note.55 Mere appearances and interlocutory motions will not be so noted, however. [C]189

General Quarterly Court August 17 th, 1871 56 Judge Johnson Presiding The following Grand Jurors, having answered to their names, were duly sworn to serve on the Grand Inquest, viz.: William Flett: Foreman

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1. James Clouston 2. Thomas Truthwaite 3. Joseph Monkman 4. Alexr. McKenzie 5. Dond. Bannerman 6. Elzear Lagemonière

7. Robert Munroe 8. Louis Thebeault 9. David Tait 10. J. M. House 11. David Taylor 12. Pierre Thibert

13. Donald Ross 14. Louis Laronde 15. Josh. Hamelin 16. Augustin Nolin

Commentary After an opening apology for the inadequate temporary quarters in which the trials were being held at the time,57 Judge Johnson’s charge to the grand jury made an interesting observation about the different onus of proof that applied before grand and petty juries: “If the evidence shows that a person is suspected on reasonable grounds of ... [a crime] ... you are not to give the suspected party the benefit of any doubt in the case as the Petit Jury would do; but if there is a doubt you are to give the benefit [of] all of it to the public – and, in a certain sense, to the Prisoner, for it is much better he should be brought to trial and acquitted if not guilty than that he should remain under the imputation.” The Grand Jury returned the following Bills of Indictment, viz.: No. 1. The Queen against George Finlay [Case 472] For Rape A True Bill (A) (cont. [C]190) No. 2. The Queen against Aimé Blanc [Case 473] For Stealing Money A True Bill (B) Prisoner being found non compos mentis,58 “Nolle Prosequi”59 was entered for him. No. 3 The Queen against William Belles [Case 474] 60 Not Found61 (E) The Prisoner was Discharged No. 4 The Queen against Antoine McLeod [Case 475] For inflicting Grievous Bodily Harm Ignoramus62 Prisoner Discharged [C]190 No. 5 The Queen against Thomas Hill [Case 476]

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For Larceny A True Bill (D) Plea: Not Guilty (cont. [C]192) No. 6 The Queen against Albert Peterson [Case 477] For feloniously Receiving a Horse, knowing the same to have been feloniously Stolen A True Bill (F) Plea: Guilty (cont. [C]193)

Cases for Trial: No. 1 The Queen against George Finlay

[Case 472] For Rape63 The Prisoner being arraigned, and being called on to plead after having heard the Indictment, pled Not Guilty; and, being asked if he was ready for his trial, said – through his counsel Mr. Walker – that he was not, and asked the Court to postpone the trial till next day. The Court granted the postponement to August 18th, 1871. The Prisoner being now ready, the following Jury were sworn: 1. Archibald Wright 2. Thomas White 3. Donald Flett 4. Thos. Slater 5. Wm. Thomas Junr. 6. Alfred Masters

7. William Setter 8. William Johnstone 9. John Clements 10. Andrew Spence 11. George Adams 12. Laurence Smith

[C]191 The following witnesses were examined for the Crown, after being duly sworn: 1. Elizabeth McLeod 2. Honble. Donald Gunn 3. David Young MD 4. Frank Villiers 5. Arthur Baylis 6. Mary McLeod The following witnesses were called, sworn and examined for the Defence: 1. Gilbert Smith 2. Samuel Bedson 3. Richard Gardner 4. John Fobister

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The Jury were addressed by D. M. Walker for the Prisoner and by Attorney-General Clarke for the Crown. The Jury were then charged by the learned Judge. The Jury, having answered to their names, gave a verdict of Not Guilty.64 Costs of Trial £ s d To: Dr. David Young, Witness for Crown, 2 days 1.13.0465 [C]192 No. 2 The Queen against Thomas Hill

[Case 476] For Larceny The Prisoner, having been arraigned, pleaded Not Guilty. The following Jury were then sworn: 1. Fredk. Fulcher 7. Thomas White 2. Thos. Norquay 8. Joseph Delorme 3. Alexr. Morin 9. Benjamin Neault 4. Thos. Calder 10. Augustin St. Germain 5. Alexr. Dahl 11. François Berar 6. Cyril Marchand 12. Elie Carrière The following witnesses were sworn for the Prosecution: 1. James McDonald Sinclair 2. John Benson 3. Andrew G.

B. Bannatyne The Jury, without retiring, returned a verdict of Guilty [C]19366

Sentences: 1. The Queen against Albert Peterson [Case 477]: That you, Albert Peterson, be confined in the Penitentiary of the Province, there to remain for three years at hard labour. Commentary The judge’s charge to the grand jury had singled out two cases as being of “great gravity”: the prosecution for rape and this one. While saying little about the rape

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case, other than to stress that it involved a capital offence, Johnson said a good deal about the charge of receiving a stolen horse. “In all countries,” he said, “horse stealing is a very serious offence. I distinctly remember seeing two men hung in Montreal, when I was a boy, for horse stealing. And though the Legislature has abolished capital punishment for the offence, still it is regarded as of a most heinous character, and particularly in a country like this, where ... [horses are] so unprotected and exposed to depredations. Therefore, I call your particular attention to this case.”67 Just in case the jury had not fully understood how seriously he regarded the matter, Johnson added, “The man stealing the horses is no more guilty than the man who receives them ... the one is just as guilty as the other.” If Peterson’s three-year sentence (compared, for example, to the two years imposed upon Longbones for scalping his wife alive)68 seems unusually severe, perhaps the explanation can be found in the foregoing comments of the judge, who was solely responsible for sentencing. 2. The Queen against Thomas Hill [Case 476]: That you, Thomas Hill, be confined in the Penitentiary of the Province, there to remain for two years at hard labour. Aug. 21 69 [3. The Queen against Ryder Larsen – Case 455d:] 70 Ryder Larsen, on being called on his recognizance, does not appear. John Schultz, on being called, does not appear. Charles Garret, being called, does not appear. Commentary The elusive Ryder Larsen had escaped from prison. Although he was later spotted in the act of stealing some horses, he persuaded the owner of the horses – by swearing to reform his life – not to turn him in. Not long thereafter, however, he stole two other horses from someone else71 and seems thereafter to have absconded forever.72 [C]194

General Quarterly Court Nov. 17 th, 1871 73 Judge Johnson Presiding Grand Jury Sworn: Foreman: 1. William Logan 2. James Harper 5. Andrew Mowat 8. Dominique Ducharme 11. Michael Powers 14. William Tait

3. Alexander Dhall [Dahl] 6. Samuel Taylor 9. Joseph Savoyard 12. Pierre Lavallé 15. Richard Smith 17. Charles Mair

4. Wm. Bunn 7. Baptiste Neault 10. Lagloire Plante 13. Norbert Laurence 16. Louis Morin

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Novr. 18 th Bills Returned by the Grand Jury:74 1 The Queen v. Pierre Cadotte [Case 478] Ignoramus 2 The Queen v. Charles Edward Jones

[Case 479] Ignoramus 6 The Queen v. Joseph Thomas William Humphrey

[Case 480] True Bill (cont. [C]195) 7 The Queen v. Joseph Thomas William Humphrey

[Case 481] True Bill (cont. [C]195) 8 The Queen v. Joseph Thomas William Humphrey

[Case 482] True Bill (cont. [C]195) 3 The Queen v. Isidore Villeneuve [Case 483] True Bill (cont. [C]195) 4 The Queen v. André Jerome St. Matthe [Case 484a] True Bill (cont. [C]195) 5 The Queen v. Oiseau L’Etendre [Case 485] True Bill (cont. [C]195) [C] 195

Criminal Cases 75 Tried: No. 1 The Queen v. Joseph Thomas William Humphrey

[Cases 480, 481, 482] 76 For feloniously Stealing a Post Letter

Nov. 20 th The Prisoner pleaded Guilty. Nov. 20th Judgment: “That you Joseph Thomas William Humphrey be confined in the Penitentiary of the Province, with hard labour, for three years, and then be discharged.”

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Nov. 22 The Queen versus Oiseau L’Etendre 77 [Case 485] For feloniously and unlawfully Levying War against Her Majesty Prisoner’s plea: Not Guilty Not ready for trial – trial fixed for 23rd Nov. 1871. (cont. [C]196)

The Queen versus André Jerome St. Matthe [Case 484a] For feloniously and unlawfully Levying War against Her Majesty Plea: Not Guilty Trial fixed for 23rd Nov. 1871. (cont. [C]198)

The Queen versus Isidore Villeneuve [Case 483] For feloniously and unlawfully Levying War against Her Majesty Plea: Not Guilty Trial fixed for 23rd Nov. 1871 (cont. [C]200) [C]196

The Queen versus Oiseau L’Etendre [Case 485] Feloniously and unlawfully Levying War against Her Majesty – Indictment No. 5

Nov. 23, 1871 – On Trial Jury sworn:78 1. Charles Spencer 7. Paul Preux 2. George Ross 8. Raphael Bellefeuille 3. Thomas Monkman 9. Colin MacDougal 4. Charles Thomas 10. Norbert Delbruier [?] 5. William Sutherland 11. Paul Paul 6. John James Bird 12. Salamon Venne Bernard Rogan Ross, duly sworn, Interpreter Witnesses: For the Prosecution: 1. Antoine Paul Laronte : sworn, examined, cross examined, re-examined

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2. Paul Laronte : sworn, examined, cross-examined, and re-examined 3. Antoine Colin : sworn, examined, cross-examined 4. Joseph Gaudon : sworn examined, cross-examined 5. William Henry Watt : sworn, examined cross-examined, and re-examined 6. Peter B. Douglas : sworn, examined For the Defence:

Dr. L. Paré : sworn, examined The Jury were addressed by [C]197 Mr. Walker and Mr. Royal, and by Mr. Clarke for the Crown [Constables] Joseph Crowson and Alexander Dhall sworn to take [?] charge of the Jury.79

Nov. 24: The Jury, being called and having answered to their names, were charged by the learned Judge. Verdict recorded: Guilty – Judgment of Death The Prisoner Oiseau L’Etendre was sentenced to be hung on the twenty-fourth day of February 1872. [C]198

The Queen versus André Jerome St. Matthe [Case 484a] For feloniously and unlawfully Levying War against Her Majesty: Indictment No. 4

1. Norman Matheson 2. Angus Morrison 3. Peter Henderson 4. Angus Matheson 5. Thomas Fidler 6. Thomas Corrigal

Jury sworn: 7. Henri Coutu 8. Romain Lagemonière 9. Paul Preux 10. Raphael Bellefeuille 11. Colin MacDougall 12. Norbert Delorrier [?]

Mr. Bernard Rogan Ross, sworn: Interpreter. Witnesses sworn for the Crown: 1. Antoine Paul Laronte : sworn, examined, cross-examined 2. Antoine Colin : sworn, examined, cross-examined

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3. Joseph Gaudon : sworn, examined, cross-examined and re-examined 4. Peter Brown Douglass : sworn, examined, cross-examined 5. William Henry Watt : sworn, examined, cross-examined 6. Paul Laronte : sworn, examined by Defence Witnesses for the Prisoner: 1. Roger Goulet , sworn, examined The Jury were addressed by Mr. Thibadeau and Mr. Dubuc for the Defence, and by the Attorney-General Mr. Clarke for the Crown. [C]199 The Jury were charged by the learned Judge. The Jury not having agreed on a verdict [by the end of the day], the Court adjourned to tomorrow 10 o’clock a.m., and the Jury were put in charge of Constables Crowson and MacBeath.80 Nov. 25: The Jury, called, answered to their names, and, being asked if they were agreed on their verdict, answered “No,” and were ordered back [to their deliberations] by the Court. The Jury [later] having [again] declared that they could not agree, were discharged. The Prisoner remanded for [re]trial at the next term.81 [C]200

The Queen versus Isidore Villeneuve [Case 483] For feloniously and unlawfully Levying War against Her Majesty – Indictment No. 3

1. Charles Spencer 2. George Ross 3. John Setter 4. Roderick Campbell 5. Thomas Monkman 6. Thomas Peebles

Jury sworn: 7. Joseph Marion 8. André Richot 9. James White 10. Joseph Lagemonière 11. Maxime Beariau [sic] 12. John Delorrier

Bernard Rogan Ross sworn: Interpreter Witnesses for the Crown: 1. Paul Laronte : sworn, examined, cross-examined

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2. Antoine Colin : sworn, examined, Defence decline to crossexamine 3. Joseph Gaudon : sworn, examined, cross-examined 4. William Henry Watt : sworn, examined, cross-examined 5. Peter Brown Douglass : sworn, examined cross-examined 6. Antoine Paul Laronte : sworn “ “ Defence: 1. Zephirim Durand : sworn, examined, cross-examined 2. L’Ouison Plante : sworn, examined, cross-examined The Jury were addressed by Messrs. Walker and Royal for the Defence, and by the Attorney-General Mr. Clarke for the Crown. [C]201 The Jury were then charged by the learned Judge. Verdict: Not Guilty Commentary82 The headline of the Manitoban’s first report of these sensational proceedings was “The Fenian Trials. All the Bar of Manitoba Engaged.”83 There were just seven practising barristers in the province at the time. Two of them, Attorney General Henry J. Clarke and John F. Bain, acted for the Crown. Representing the accused were partners Joseph Royal (speaker of the provincial legislature) and Joseph Dubuc, plus D.M. Walker, for L’Etendre; Dubuc and W.B. Thibaudeau (Walker’s partner) for St Matthe; and Walker and Royal for Villeneuve. The seventh lawyer, R.M. Howard, seems to have assisted all the other defence counsel. The lawyers for the defence were hampered in their preparations for trial by several circumstances.84 One was shortness of time. Neither L’Etendre nor Villeneuve, apparently unaware of the gravity of their situation, made any attempt to retain counsel. St Matthe’s family had, with the assistance of Enos Stutsman at Pembina, engaged the Winnipeg firm of Walker and Thibaudeau; but neither of those gentlemen spoke French, and an interview with their client conducted through an interpreter had not enabled them to prepare what they considered to be a satisfactory defence. It was only four or five days before trial that Royal and Dubuc, presumably contacted in panic by Walker and Thibaudeau, learned that two of the three accused were undefended, and that the third was not much better off. They then hurried off to the prison, interviewed the three, offered their services, and began to cobble together as good a defence strategy as they could in the circumstances. Their efforts were “rendered more difficult,” Royal said, by the extreme poverty of the prisoners, the distance from the site of the alleged crime, and the utter impossibility of procuring witnesses from the United States.85

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Although the records of the General Quarterly Court no longer quoted or paraphrased the contents of testimony, the Manitoban provided extensive, often verbatim, coverage.86 Judge Johnson’s charge to the grand jury, the English-language version of which was quoted word-for-word in the newspaper, explained the legislation under which the men were charged: a federal statute derived from one by which the pre-Confederation Province of Canada had dealt with the Fenian attacks there.87 It prohibited, on pain of death or other penalty in the court’s discretion, any acts of war by “subjects of foreign countries at peace with Her Majesty,” and imposed that liability on both such foreigners and any British subjects who acted in concert with them. Because the law applied equally to subjects and to aliens, the fact that all three accused persons seem to have been Americans was not legally significant. All three having been indicted by the grand jury, L’Etendre was tried first, and the Crown evidence left no doubt about his involvement in the escapade. A long-time resident of Pembina or vicinity, L’Etendre was described by the Manitoban as “tall and elderly.” Cross-examination of Crown witnesses who knew him established that he was also quiet, good-natured, and “weak-minded.” Although Attorney General Clarke’s opening statement described him as “a leading man among the invaders,” the evidence made it clear that “leading” was used in a special, and very limited, sense. As the invaders approached the border about 5:00 AM on 5 October 1871, the first building they saw ahead of them on British territory was the Canadian Custom House, where a handful of people associated with the collection of customs duties were known to live. Concerned that the building might also contain a concealed defence force, the Fenian commanders decided that prior reconnaissance would be desirable. L’Etendre, who was known to those who lived in the house, was accordingly sent ahead on horseback, unarmed, to enquire of one Laronte, who could be seen cutting wood near the house, whether there was anyone in the house. When Laronte replied that “there were no other people there” (by which he seems to have meant “no strangers”), L’Etendre galloped back across the border, swapped the horse for a rifle and bayonet, and joined the other foot soldiers, who were similarly equipping themselves and forming up to march into enemy territory. Only in that respect did Oiseau L’Etendre “lead” the raid. From then on, as the invaders seized the Custom House, appropriated its British flag, made prisoners of its few inhabitants, and marched on to capture and loot the HBC post, no witness observed L’Etendre do anything other than eat breakfast in the company of his fellows and run away when US troops arrived. The defence called only one witness: a Dr Paré, who testified that he had examined the accused physically, and had found a depression on the surface of his head that seemed to be the result of having received at some time a heavy blow that the doctor thought could have caused “inflammation of the brain,” which in turn “might affect the Prisoner’s mind.”88 Attorney General Clarke’s lengthy closing address to the jury, larded with the rotund forensic flourishes of the time, was an exercise in oratorical overkill. He

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reminded the jurors of how, “with loaded rifles and bayonets glittering in the early morning sun, the cowardly assassins crossed the line, and with their felon feet desecrated the free soil of great Britain’s youngest province, ... [and how the] British flag was stolen and carried away by the vile assassins.” Then, linking the raid to earlier Fenian assaults on eastern Canada (a linkage to which Walker properly but unsuccessfully objected on the ground that there was no supporting evidence), Clarke described an 1866 attack on Upper Canada by “a ruffian hoard in the dead of night ... while the people of Canada slept,” leaving behind “the bleeding corpses of a number of our fellow countrymen.” Turning back then to W.B. O’Donoghue’s “invading army,” the attorney general’s eloquence soared: They had with them no music that was perceptible, it is true. They had no bands or colors flying. But they still had both music and colors. Had they not, as a never-ceasing accompaniment, the dying shrieks given out by their victims ...? Did not the death cries of their victims, slaughtered in Canada in 1866, follow them? Had they not the gurgling sounds that issued from poor D’Arcy McGee’s throat when he was struck down by the dastardly hand of one of their fellow assassins? Yes, gentlemen, this was the music that accompanied the marauders of Manitoba. In his peroration, Clarke went so far as to place the crimes of little Pembina’s Oiseau L’Etendre in the context of the Paris Commune and the recent excesses of revolutionary societies in Italy.89 The evidence was nevertheless clear – and was never disputed – that L’Etendre had contributed in his small way to O’Donoghue’s foray. The principal defence, apart from an entirely unsubstantiated claim that L’Etendre had been forced to participate, and a recent rumour that the marker for the international boundary line might have been mistakenly placed too far south,90 was based on the accused’s undoubted simple-mindedness. That defence was rejected by Judge Johnson, however, both when Royal referred to it in cross-examination and in his own charge to the jury. Then, as now, insanity was an accepted defence to criminal conduct only if it prevented the accused knowing what he was doing, in a physical sense, or knowing the difference between right and wrong.91 “Where,” Johnson asked the jury in his charge, “is the sworn testimony telling you that this man is a man of weak mind so as to be unable to discern between right and wrong? Not a tittle ... If the evidence leads you to believe him to be an incurable madman, not knowing what he was about, of course he must be acquitted. But I am not transcending my duty when I tell you there is no such evidence, and that this plea of irresponsibility must be wholly put out of the question.” Royal and Walker were both good enough lawyers to know that an insanity defence could not succeed in this case. Their reason for stressing their client’s “weakmindedness” must have been to draw from the jury a recommendation of mercy in the hope that it might influence the judge not to impose the discretionary death penalty when the inevitable verdict of guilt was reached, or persuade the governor

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general to commute the capital penalty if it was imposed. Vis-à-vis the judge, that strategy failed. The jury, “after a short absence,” returned a guilty verdict, with no recommendation for mercy; and Judge Johnson, although “with evidences of very considerable emotion,” sentenced L’Etendre to be hanged two months later. A campaign to commute the sentence was then mounted,92 and it succeeded – as Judge Johnson was no doubt confident that it would – in having the penalty reduced to banishment.93 This was in line with the lenient treatment previously convicted Fenian raiders in eastern Canada had received.94 The same Crown witnesses who had testified in the L’Etendre case did so twice more before different juries in the St Matthe and Villeneuve prosecutions. The defence called no evidence in St Matthe, but in Villeneuve presented witnesses who testified that the accused had returned to Winnipeg from Athabasca only a few days before O’Donoghue’s border crossing, and had consistently condemned Fenianism ever since then. On that evidence, Villeneuve was acquitted; and when, at the end of the session, the St Matthe jury announced that it would never be able to reach a verdict, the accused in that case was remanded for a retrial at the next session – when he too was acquitted. [C]202

General Quarterly Court February Session, 1872 95 Judge Johnson The following Grand Jury were duly called and sworn: John Bourke – Foreman 1. William Frazer 2. Charles Garrett 3. John Bourke 4. André Berar 5. Daniel Carrière 6. William Boyer 7. Alexander Black 8. John McLeod 9. William Folster 10. George Fisher 11. James Bird 12. Hugh Pritchard 13. Robert Tait 14. Roger Goulet 15. Baptiste Dauphinais The Grand Jury, having been charged by the learned Judge, retired to their room, [and returned the following True Bills:] 2. The Crown v. William Johnston [Case 486] – A True Bill96 (cont. [C]203) 3. The Crown v. James Warren [Case 487] – A True Bill (cont. [C]205) 5. The Crown v. Clement Hancock [Case 488] – A True Bill (cont. [C]203)

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6. The Crown v. Thomas Chartier [Case 489] – A True Bill (cont. [C]203) 7. The Crown v. Charles Edward Jones [Case 490] – A True Bill (cont. [C]207) 8. The Crown v. James Wilson [Case 491] – A True Bill (cont. [C]203) 9. The Crown v. James Wilson [Case 492] – A True Bill (cont. [C]203) 11. The Crown v. Henry Smith [Case 493a] – A True Bill (cont. [C]206) [C]203

The Queen v. William Johnston [Case 486] For inflicting Grevious Bodily Harm Plea: Guilty. Sentence: two years Provincial Penitentiary with hard labour.

The Queen v. Clement Hancock [Case 488] For Larceny March 2nd: Sentenced to gaol for 1 month.97

The Queen v. Thomas Chartier [Case 489] For Stealing Money March 1st: Sentenced to 1 month’s gaol.

The Queen v. James Wilson [Cases 491 & 492] 98 Larceny March 1st: Sentenced to three months’ gaol. [C]204

1 st March, 1872 99

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The Crown versus St. Matthe [Case 484b] Remanded from Last Term100 Royal & Dubuc for Defence.101 Bernard R. Ross, sworn: Interpreter.

1. Norbert Morin 2. John Lambert 3. Joseph Tait 4. George Miller

Jury sworn: 5. William Pruden 6. John McBeath 7. Henri Else 8. Joseph Delorme

9. Baptiste Larmand 10. François Contois 11. Augustin St.Germain 12. Alexis Malleterre

[Witnesses] for the Crown: 1. Paul Laronte : sworn, examined, cross-examined and re-examined 2. Antoine Paul Laronte : sworn, examined, cross-examined 3. Antoine Colin : examined, cross-examined 4. Joseph Gaudon : examined, cross-examined 5. Peter B. Douglass : examined, cross-examined 6. William Henry Watt : examined, cross-examined Defence: Mr. Walker addressed the Jury in English.102 Mr. Dubuc addressed the Jury in French. For the Crown: Mr. Clarke addressed the Jury in English and French.103 The learned Judge charged the Jury in English and French. Verdict: Not Guilty.104 [C]205

The Crown versus James Warren [Case 487] Inflicting Grevious Bodily Harm Plea: Not Guilty. March 2nd: Plea Amended: Guilty. Sentence: Two years in the provincial penitentiary with hard labour. [C]206

The Crown versus Henry Smith

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[Case 493a] Larceny Postponed to the next term, Prisoner being on bail to appear. [C] 207

The Queen versus Charles Edward Jones [Case 490] For Rape

1. John Ross 4. James Tait 7. William Dease 10. Peter Harkness

Jury sworn: 2. John Klyne 5. Francis Gibson 8 Joseph Hogg 11. Wm. Pruden, and

3. John Lambert 6. Wm. Cromartie 9 Henri Else 12. John Morrison

William Logan, sworn, Interpreter. Prosecution:

Marie Blondin : sworn, examined, cross-examined. Verdict: Not Guilty.105 Prisoner discharged.106 [C]208

General Quarterly Court May Term 1872 107 Judge Johnson

16 th May, 1872 The following Grand Jury were duly called and sworn: 1. William Frasier, Foreman 4. John Mathewson Jr. 7. Henry Joachin108 10. William Thomas 13. Louis Lacerte (Père) 16. Pierre Agoulle

2. Adam McBeath 5. Alexr. Polson 8. Alexr. Dahll 11. Amable Gaudri 14. Louis Morrin (Père) 17. Baptist Bouché 19. Pierre Poitras

3. Daniel Bannerman 6. Daniel Hamilton 9. William Bunn 12. Joseph Landri 15. Jean Lesperance 18. Pierre Laveille

The Grand Jury, having been charged by the learned Judge, retired to their room & the Court was adjourned till 10 o’clock a.m. 17th May. [C]209

17 th May, 1872

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The following Grand Jury were called & sworn:109 and returned the following indictments. [C]210 1. William Harper [Case 494(1)] 110 Rape – A True Bill (cont. [C]212) 2. Chas. H. Hewlett [Case 495(1)] Obtaining Money by False Pretences – A True Bill111 (cont. [C]211) 7. Accocanis [Case 496(1)] Larceny – A True Bill112 (cont. [C]213) 9. W. Harper [Case 494(2)] Indecent Assault – A True Bill (cont. [C]212]) 10. Angus Neilson [Case 497] Feloniously Causing Grievious Bodily Harm – No Bill 11. Edward Isbister [Case 498] Larceny – A True Bill [No further reference]113 12. Walter Davidson [Case 499] Assault & Battery – No Bill114 13. Walter Davidson & William Buchanan

[Case 500] Assault & Battery – No Bill115 14. W. G. Fonseca [Case 501(1)] Larceny – A True Bill116 (cont. [C]214) 16. Walter Davison & William Buchanan [Case 502] Conspiring to Murder – A True Bill [No further reference]117 Remanded from last Session:

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Henry Smith [Case 493b] Larceny – A True Bill [C]211

The Crown v. Charles H. Hewlett [Case 495(1)] 118 No Jury sworn. Pleads Guilty to each Indictment.

May 23 rd 1872: Indictment No. 6:119 Sentence: That Charles Hewlett be imprisoned in the common jail for three months, after which to be discharged. [C]212

May 20 th, 1872 The Crown v. W. Harper [Case 494(1) & (2)] Rape, Indecent Assault120 The following Jury were sworn: 1. James Taylor 2. Ambrois Jobain 3. Alexr. Taylor 4. Jno. Setter 5. Alexr. Bannerman 6. Alfred Masters 7. Thos Slater 8. Albert Todd 9. Wm. Work 10. Thos. Kepling 11. Edwd. Pruden 12. Martin Cook John McKay, sworn: Interpreter in Chippewa. Witness[es] sworn: Mary Anne Thomas, examined by H. J. H. Clarke for the Crown, crossexamined by Mr. Walker for the Prisoner. Margaret Harper, sworn, examined by H. J. H. Clarke for the Crown, cross-examined by Mr. Walker for the Prisoner. Simon Thomas, sworn, examined by H. J. H. Clarke for the Crown. William Thomas, sworn, examined by Mr. Walker for the Defence, crossexamined by Mr. H. J. H. Clarke, Q.C. for the Crown. Mr. Walker’s Witness, 121 sworn, examined by Mr. Walker for the Defence.

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Mary Anne Thomas, sworn & examined by Mr. H. J. H. Clarke. The Jury were addressed by Mr. Walker & Mr. Clarke, & charged by the learned Judge. The Jury, after answering to their names, returned a verdict of Not Guilty. [C]213

The Crown v. Accocanis [Case 496(1) & (2)] Indictment 7: Larceny [and] Indictment 8: Feloniously Receiving Stolen Property The following Jury were sworn: 1. Henry Contou 7. Josh. Leclaire 2. John Sutherland 8. John McNab 3. John Knight 9. David Spence 4. Charles Neau 10. John Harper 5. Daniel Charrette 11. George Inkster 6 André Carrière 12. John Inkster John McKay, sworn: Interpreter in Chippewa. Odilon Garnot, sworn: Interpreter in French. Witness[es] sworn:

Daniel Devlin , examined by Mr. H. J. H. Clarke. James McLenaghan , examined by Mr. H. J. H. Clarke. The Jury were addressed by the learned Judge. The Jury returned a verdict of Guilty.

(May 23 rd 1872) Indictment 7: Sentenced 8 days common jail hard labor.122 [C]214

The Crown v. Henry Smith [Case 493b] Larceny

1. James Inkster 2. Alexr. Templeton 3. Wm. Gowler 4. Donald Flett 5. John McNab

Jury sworn: 7. David Spence 8. John Harper 9. John Sutherland 10. Josh. Leclaire 11. John Knight

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6. Daniel Charette

12. Wm. Thomas

For the Prosecution: Witness sworn: George Gunn, examined by Mr. H. J. H. Clarke. “

Richard Saunderson, examined by Mr. H. J. H. Clarke, cross-examined by Mr. Walker.

“

Thomas Slack, examined by Mr. H. J. H. Clarke.

“

Mrs. Nancy Saunders, examined by Mr. H. J. H. Clarke, Cross-examined by Mr. Walker. Jury returned a verdict of Not Guilty.

Regina v. W. G. Fonseca 123 [Case 501(1) & (2)] [Larceny] Bail accepted for the Prisoner to appear when called. Bailsmen: Alexander M. Brown, in the sum of £50.00.00 & Wm. Drever, in the sum of £50.00.00 and the Prisoner W. G. Fonseca in the sum of £100.00.00. Commentary Two politically charged groups of cases were brought to this final session of the General Quarterly Court. This volume of the court records, however, says little about one group, and is altogether silent as to the other. Cases 499, 500, and 502 arose from an invasion on 8 December 1871 of the home of Louis Riel by a menacing group of armed men, many of them drunk, who were opposed to the French cause, and who falsely claimed to have a warrant for the Métis leader’s arrest. Only Riel’s mother and sister were there at the time, and the menacing manner in which the intruders searched the house and brandished their firearms terrified the women.124 Charges of assault and battery – and of conspiracy to murder – were laid against two alleged members of the group, Walter Davidson and William Buchanan. Those charges came up for hearing at this session. The grand jury declined to indict on the lesser (and more plausible) charges but, oddly, returned a true bill on the allegation that the accused men had conspired to murder.125 That indictment was never acted upon, however, and the record provides no explanation. The fact that a grand jury indicted someone did not necessarily mean that a prosecution would follow. The attorney general could always stay proceedings – as he

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apparently did in case 498 (Isbister – larceny), for example – and he was never required to explain why. The best guess that can now be made as to why Henry Clarke did so in the Davidson-Buchanan case is that the evidence of the intruders’ identities was slim, it was very doubtful that the allegations amounted in law to conspiracy to murder in any event, and it was highly probable that even attempting to prosecute would prompt divisive, and perhaps violent, demonstrations by supporters of the accused. The other highly sensitive cases, about which this volume of the court records is altogether silent, stemmed from the October 1871 “Fenian Raid.” During the frenzied preparations to defend Manitoba from the looming O’Donoghue expedition, unnamed loyalists alleged that two men, William Cosgrove and Edward Lennon, had been in communication with the invaders. Cosgrove and Lennon were accordingly arrested by John F. Bain, acting as special constable, and detained on order of Magistrates A.G.B. Bannatyne and Robert Cunningham. The detainees were never charged with anything, and each subsequently sued the magistrates and Bain for false imprisonment. Both actions were launched in February 1872126 with D.M. Walker acting for the plaintiffs. Attorney General Clarke, who was initially listed as attorney for the defendants as might be expected, withdrew as such two weeks later. Perhaps he felt that, as a politician, he would be unwise to associate himself with politically sensitive litigation. John F. Bain, who was one of the defendants but was also a competent lawyer, acted thereafter as defence counsel for himself and the other defendants in both cases, although Clarke would also reappear in that role in May. Neither case is referred to in volume C of the court records because by then civil cases, which these were, had been moved to the separate volume D. The cases were scheduled for hearing at the February 1872 session, but no trials were held at that point. Cosgrove’s action (case 578, [D]75) was dismissed, and costs were awarded against him, with no indication that a jury was chosen or that any evidence was considered by the court. What seems to have happened is that Bain raised a procedural defence – lack of advance notice of the litigation as required by an English statute – which Walker contended was not applicable to these cases; and both sides recognized that there would not be time at that session both to argue the points of law involved in the defence and, if the plaintiff succeeded, to try the cases on their merits. Agreement was accordingly reached between counsel to deal with the legal dispute in Lennon’s case only (case 579, [D]76), and to adjourn that matter until the May term. Cosgrove’s case would be dismissed, with costs of the day to be paid by him, but with leave to commence a new action. The Manitoban for 25 May 1872 reported what happened at the postponed hearing:127 Cosgrove and Lennon vs. Bannatyne.128 This was an action for false imprisonment, during the Fenian excitement last fall, when Plaintiffs were arrested by the Home Guard of Winnipeg, all of which corps Defendant, with

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Messrs. Cunningham and Bain (against whom similar actions have been instituted) were members. The damages claimed in each action amounted to $5,000. Messrs. Walker and Howard appeared for Plaintiffs, and Attorney General Clarke Q.C.,129 and Mr. Bain for the Defence. Mr. Bain: “There is one objection which I wish to take to the proceedings in this case, which, if sustained, will materially shorten it. The English statute 11 and 12 Vic. c. 44 provides that no such action as the present can be commenced against any justice of the peace until one calendar month’s notice of the action has been given.” The Judge: “It is a question of law for the Court whether this action appears to be directed against magistrates acting within the scope of their authority. In a case of this kind, the month’s notice of action against a magistrate (or those acting under him) is always required where it appears to the Court that he has been acting in a public capacity.” Mr. Walker: “We do not know in what capacity the Defendant was acting.” The Judge: “I do not know the circumstances,130 but if I could be informed what they are alleged to be, I could decide the point at once and save time.” Mr. Bain: “Perhaps my learned friend will receive my word now that I acted under the direction of the magistrates in making these arrests.”131 Attorney-General Clarke: “The case is this. During the Fenian excitement last fall, complaints were lodged against the Plaintiffs, verbally, by certain parties whose duty it was to patrol the town. The complaints were to the effect that Plaintiffs were in communication with the Fenians. Desirous to secure the public safety, Messrs. Bannatyne and Cunningham, acting in the capacity of magistrates, ordered the arrest of these parties.” The Judge: “Messrs. Bannatyne and Cunningham are both magistrates?” Attorney-General Clarke: “Yes.” The Judge: “Then I shall hold the arrests to have been a magisterial act. It would be extremely irrational to say that in times of public excitement a magistrate should not be protected by law in the exercise of his duty.” Mr. Walker: “But the magistrates were bound to have given Plaintiffs notice of acting in such capacity.” The Judge: “The fact of their having a Commission of the Peace is a fact publicly known. It remains to be decided whether this question of right can be tried without a month’s notice. It would be impossible for the public to be served by justices of the peace, constables, or other officers (who, in the discharge of their duties, may render themselves liable to actions) unless they had the protection of the law. The law says to all in authority: ‘In every case where you act as magistrate (or where any act under you in that capacity), the question as to whether you acted bona fide or exceeded your authority shall be submitted to a jury, but never without a month notice.’ No action can be tried in this Court on its merits against any holding public office unless the month’s notice has first been proved. Whether an action against the magistrate is brought wrongly or rightly, the pre-

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liminary step to be taken is to give up one month’s notice. And then the question comes up as to whether the action has been oppressive or illegal. It may appear that I am ruling peremptorily; but the last time I was in the country it was mentioned to me that actions of this description were impending, and I particularly referred to the law on the subject, and have memoranda of it, so that I have no doubt whatever on the point.” Mr. Walker: “Your Lordship will know that I object to your ruling. I submit that we ought to be able to proceed with the case.” The Judge: “I am doing this merely to save time. If your evidence can prove that Mr. Bannatyne arrested someone, I shall instantly require you to prove that the month’s notice of action has been served. I am bound to know, ex officio, that Mr. Bannatyne is in the Commission of the Peace. In that case, the jury being empanelled, I shall have to direct a verdict for Defendant.” Mr. Walker: “I will take a nonsuit, so that the question of law may be raised hereafter.” A verdict of nonsuit was entered. The difference between dismissal and nonsuit was that whereas the former would, without special leave, decide the issue in the defendant’s favour once and for all, the latter would permit the matter to be reopened by fresh litigation – after the required notice had been given, of course. In the event, Lennon would never do so. Cosgrove, however, had in April, presumably with special leave, launched a new action (case 655, [D]155) against the same three defendants after the apparently agreed-upon dismissal of his first action. That action remained active until June 1873, when it was withdrawn without explanation. It seems likely that either some settlement was quietly made with Cosgrove and Lennon, or the same shifting political winds that prevented the indicted invaders of the Riel home being brought to trial persuaded these plaintiffs that the odds against victory in the courts were now too high to be worth facing. [D]1

General Quarterly Court [1871–72 Civil Cases] Commentary This fourth volume, “D,” of General Quarterly Court records was not recognized as such until the research upon which this edited publication of the records is based was well under way. The oversight seems to have had two related causes. One was that the third volume – called volume C herein – extends to the end of the General Court’s existence in 1872. The other was that the format of the fourth volume is quite different than that of its predecessors, being organized by case rather than by court session.

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It was decided in May 1871, presumably by Judge Johnson, that civil and criminal cases would be recorded separately. By that time, civil litigation was burgeoning in the rapidly growing new province, the advent of a professionally trained bar had introduced more complex civil procedures than previously, and the timespan of civil lawsuits had accordingly lengthened considerably. Although criminal prosecutions could still generally be completed within the span of a single court session, the various stages of civil litigation often dragged on for a year or more. Starting with the May 1871 session, therefore, civil cases ceased to be recorded in volume C;132 and volume D was begun to enable such cases to be chronicled on a case-by-case basis thereafter. From the historian’s perspective, volume D is disappointing because, although it sheds much light on the procedures employed and the respective caseloads and clienteles of Manitoba lawyers, in other respects it tells us much less about the disputes with which the court dealt than earlier records had. With few exceptions, it does not even indicate the nature of the claims made in particular cases. Although the final session of the General Quarterly Court was held in May 1872, the court office seems to have continued functioning on behalf of that court, issuing writs and accepting documents for filing, until at least 6 August. Between that date, when the last General Court claim was filed,133 and 24 August, when the first Court of Queen’s Bench claim was filed,134 the volume contains a long list entitled “Statement of Papers Filed of Record in the General Quarterly Court, Transferred to the Prothonotary135 of the Court of Queen’s Bench.”136 The same record book continued to be used until January 1873 to list new Queen’s Bench cases,137 and into 1874 to record new proceedings in both General Court and Queen’s Bench cases.138 This transcription concludes, however, with the first of the Queen’s Bench cases. It opens with a partial Index listing the cases filed until a short time before the transition to the Court of Queen’s Bench occurred. [D]2

Index No. 1 2 3 4 5 6 7 8 9 10 11 12 13

[Pltff.] [Deft.] John Higgins v. Rob. Tait McTavish John H. v. Desgeorges Gabriel McTavish John H. v. Walker W. J. McDermot Andrew v Holmes J. B. do. do. Metzger F. L. v. Fonseca W. G. Hudson’s Bay Co. v. Little Beaver do. v. McLean & Smith Schultz John v. Hill Griggs & Co. McKenny John v. Holmes J. B. Hyde D. v. Tait Rob. McDermot Andrew v. Dhall Alex. Vandal François v. Schultz

No. 59 60 61 62 63 64 65 66 67 68 69 70 71

Pltff. Schultz Jno. do. Drever Wm. Schultz Jno. Boyd A. Hayward L. Taylor Jno. do. do. do. do. McArthur & Martin Tait D.

Deft. Kennedy Saml. Holmes, J. B. Lagemonière M. Meeham M. Struthers T. do. McKay Jno. Leviolette Lucier Basil Dejerlay L Bias Jno. Davidson & Miller Levallee C.

General Quarterly Court Records for Manitoba, 1870–72 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58

Lapointe J. B. v. St. Luc Gilbert Laverdure Pierre v. Baldwin James Hudson’s Bay Co. v. Slater Wm. Marion Narcisse v. O’Donnell John H. Higgins John H. v. McKay Geo. McKenny Henry v. Rev. Jas. Suttee Sanderman J. B. v. Louis Plainval Courtelle N. v. Lacerte Cathn. Marion J. v. O’Donnell J. H. Schultz J. v. Spence Thos. Cousins Jas. v. O’Donnell J. H. Bannatyne & Begg v. Begg D. Anderson E. v. Pruden P. McDermot A. v. C. Garratt do. do. Murray Alex. v Bellefeulle Morwick Peter v. McDonald Adam Grant J. F. v. Brymner W. Hayward L. v. Hill Griggs & Co. Crowson v. Adshead Gerold A. R. v. Nolan D. Comber E. v. Tait R. McKenzie J. v. Tait R. Brown A. M. v. Sinclair & McDougall Brown A. M. v. Davidson & Miller Lynch Jas. v. Hill Griggs & Co. Emerling v. Barber E.L. McDermot A. v. McBain K. Lusted T. v. Wm. Dease Hall v. Lousden McKenney Jno. v. Ormond Jno. Frasier Colborne v. Hill Griggs & Co. Schultz Jno. v. Tait D. Schultz Jno. v. Kennedy Hussey Philip v. Manitoba Brewery Co. Cadman Josh. v. do. Cosgrove v. Bannatyne Edgerton E. S. v. House J. M. Mercer F. C. v. Dease Wm. Jr. Edgerton E. S. v. Larsen R. Robinson J. F. v. Taylor Jas. Robinson J. F. v. Klyne Jno. do. v. Klyne Geo. Hill Griggs & Co. v. Schultz Jno. McDonald D. v. Peebles Jas.

72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116

Mayenyest H. Fonseca W. G. do. Cosgrove W. G. Lennon Edwd. Anderson Johan Chisholm & Buhar Dease Wm. McDurmitt Josh. Tait David McDurmitt A. do. House J. M. do. do. do. do. & House, Chas. do. do. do. do. House Chas. Benson J. R. Higgins Jno. Sinclair & McDougall House J. M. Etors. of Wm. Inkster Garratt Chas. Bannatyne A. G. B. Schultz Jno. do. Lowman M. J. G. House J.M. & House C.H. House J. M. do. do. & House C. H. do. [blank] Hastie Rob. Boeneman J.C. & McLeod Schultz Jno. Brennerman & McLeod Higgins Jno. Wrixon Garratt C. do. Spence Thos.

617

Bremerman J. Ducharme, François Nolin N. Bannatyne et al do. Stevenson Roderick Bedman Jas. Coutu Hy. Nolin D. Hastie R. McBain R. Smith W. DesJerlais B. Lafrenière B. Sear L. Lucier B. Parisien A. Fayant J.L. Ross Daniel Hodgson G. L. de Plainval McBeath R. Meeham M. Lucier A. Coutu Hy. Diamond W. Sutherland R. Meade R. P. Ducharme F. Taylor Jas. Faynant J. B. DeJarlais A. Chatras Paulette do. Pierre Shay D. Tait D. Field Hy. Matheson J. R. McKay Jno. Geddis J. G. Bannatyne A. G. B. McDermot A. Bannatyne A. G. B. Gingras François

[D3] No. 117 118

Pltff. McLaw & Smith McKay Jas.

Deft. Wm. Kellond Geo. Sutherland Alex.

No.. Pltff 160 Miller & Ellwood 161 McDermott J. A. R.

Deft. A. M. Brown Sanderman J. G.

618

Law, Life, and Government at Red River

119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155

Bannatyne A. G. B. do. Taylor D. Barber E. L. do. McArthur Alex. Devlin Brian Barber E. L. do. do. do. do. Mulligan R. Marcellais J. House J. M. Hewett D. W. Sinclair D. Swinford H. Hayward L. Edgerton E. L. McDermott A. Gingras F. do. do. do. do. do. do. do. Emerling Geo. Grouett A. Wilson & Hyman Barber E. L. McKenny Hy. Fonseca Wm. McKenney Jno. Cosgrove Wm.

156 157 158 159

McLeod D. McDermott A. McArthur A. Parisien Honoré

Garratt Chas. Schultz Jno. Anderson D. Vandal Louis Veine David Omond Jno. Logan Wm. Morrin Baptiste Le Rocque A. Goudrie A. Klyne John Davidson & Wheeler Hamelin S. Laronde Chas. Shay D. No. 106 Schultz Jno. Geddis J. G. do. Thibaudeau Wm. B. Larsen Ryder Holmes J. B. Gaudry A. Page Alexr. Gladu Pierre Charette Jos. Ducharme Josh. Ladoucer A. Lacerte Louis Lesperance Josh. Higgins Jno. Hones Jas. Klyne Geo. Huppe Josh. Spence Thos. Logan Wm. Monchamp Benj. Bannatyne Bain & Cummingham Donald Chas. Thomas Jno. Garratt Chas. Marcellais Jno.

162 163 164 165 166 167 168 169 170 171 172 173

Ducharme Baptiste McDermott Andrew [blank] [blank] McArthur A. & Martin J. [blank] [blank] [blank] [blank] [blank] [blank] [blank]

Murray Alexr. Dhall Alexr.

Fonseca W. G.

[D]4

General Quarterly Court Judge Johnson139 No. 1:

John Higgins, Plaintiff versus Robert Tait, Defendant [Case 503]

General Quarterly Court Records for Manitoba, 1870–72

619

Walker & Howard, James Ross140 Atty. for Plaint. H. J. Clarke, Q.C., D. M. Walker for Defendant.141 The Plaintiff claims from Defendant £25 for Damages. Declaration142 fyled. (23)143 1871 Summons144 issued ordering Defendant to appear in Court May 25th August 17th, 1871. (23) August 17 Appearance entered145 and Demand [for particulars]146 &c. Fyled. August 16 Defendant took out Subpoena and two copies for Alexander Edgar and William Porter.147 Augt. 19 Court ordered to be heard 1st day of next term. 1872 April 24 Particulars fyled.148 May 4 Subpoena [for witnesses] issued to Pltff. “ 18 Def. not ready to be called in order again149 this term. 22 Postponed to next term by mutual consent. 1873 January 13 Record150 entered. Referred to Arbitration by mutual consent. March 12 Taxed Bill of Costs.151 [D]5 No. 2

John MacTavish v. Gabriel Desgeorges [Case 504] 1871 May 12th

Plaintiff having made the necessary Affidavit, a Writ of Capias ad Respondendum152 was granted (24). Settled. No. 3

John H. MacTavish versus W. J. Walker [Case 505] 1871 May 13th

Plaintiff having made the necessary Affidavit, a Writ of Capias ad Respondendum was granted (25). [D]6 No. 4

Andrew McDermot versus J. B. Holmes [Case 506]

620

Law, Life, and Government at Red River

Royal & Dubuc for Plaintiff 1871 May 20th

May 26th

Plaintiff claims from Defendant £337 Stg., or $1,685.00, and, having made the necessary Affidavit, a Writ of Capius ad Respondendum was granted. Fyled (26). Said Writ of Capius ad Respondendum was served on the Defendant. Case Settled and Discontinued. No. 5

Andrew McDermot versus J. B. Holmes [Case 507] Royal & Dubuc for Plaintiff 1871 May 20th

May 26th

The Plaintiff applied for a Writ of Attachment153 for reasons set forth in his Affidavit, fyled (27), and said Writ was granted (27). Said Writ served on Defendant as per Return154 certified thereon. Case Settled and Discontinued. [D]7 No. 6

F. I. Metzger versus William G. Fonseca [Case 508] James Ross

D. M. Walker

Plaintiff claims from Deft. $92.00 American currency with interest, or $96.00 Canada currency. 1871 June 8th Plaintiff put in his Declaration and a Summons was posted (28). June 21st Defendant entered an Appearance and fyled two Pleas155 against the Plaintiff’s Declaration (29). Settled. [D]8 No. 7

Hudson’s Bay Coy. versus “Little Beaver” [Case 509] Royal & Dubuc for Plaintiffs

General Quarterly Court Records for Manitoba, 1870–72

1871 June 13th

June 16th June 18th

621

Plaintiffs claim £86.17.00 Stg. and, having made the necessary Affidavit, a Writ of Capias ad Respondendum was granted (30). Writ served on Defendant as per Sheriff’s Return. Case Settled. No. 8

Hudson’s Bay Coy. versus McLane & Smith [Case 510] Royal & Dubuc 1871 June 21st

June 21st June 30th

John F. Bain

Plaintiff having taken the necessary Oath and having given Bonds (31) for $9,450.00, a Writ of Replevin156 was issued (32). Said Writ served on Defendant. Appearance entered for Defendants by J. F. Bain (33). Case Settled and Discontinued. [D]9 No. 9

John Schultz versus Hill Griggs & Coy. [Case 511] (John F. Bain) 1871 July 5th July 5th July 6th

(Royal & Dubuc)

Plaintiff took the necessary Oath and, having given Bonds (35) for $16,000.00, a Writ of Replevin was granted (34). Said Writ served on Defendant. Case Settled and Discontinued.

In the Estate of William Rowand, Deceased [Case 512] 157 1871 July 5th

July 5th

Mrs. Mary Rowand, widow of the said William Rowand, made application for Letters of Administration in favor of herself and J. C. Bird MD to empower them to administer the said estate (36). Mrs. Mary Rowand, widow of the said William Rowand, petitioned the Court to appoint the Bishop of Rupert’s Land and Donald A. Smith Esquire as separate and joint guardians of her child Mary Maria Rowand, and to grant Letters of Guardianship to that effect (36).

622

Law, Life, and Government at Red River

[D]10 No. 10

John McKenny versus J. B. Holmes [Case 513] D. M. Walker John F. Bain Plaintiff claims from Defendant $300.00 Debt. 1871 July 5th

Plaintiff entered his Declaration, and a Summons for Defendant was issued (37). Said Summons served on the Defendant. Appearance entered on behalf of the Defendant and pleas fyled (37). In Court: Judgment entered for Plaintiff for amount of note with interest and Costs.

July 17th July 29th Aug. 19th 1872 January 9 “ 9

Execution entered $274.37 by Messr. Walker for Plaintiff. Writ of Execution158 issued. [D]11 No. 11

David Hyde versus Robert Tait [Case 514] D. M. Walker Royal & Dubuc The Plaintiff claims from Defendant a Debt of $100.00. 1871 July 5th

Plaintiff entered his Declaration and took out a Summons against Defendant (38). Said Summons served on the Defendant. July 11th July 19th Defendant entered an Appearance by Royal and Dubuc (38). July 19th Defendant fyled Pleas against Plaintiff’s Declaration (38). Aug 9th Defendant issued Subpoena for witnesses and one copy. Aug 19th [illegible mark] With consent of the parties to this suit the Court ordered that this case stand over till next term. November Session, 1871 Nov. 20th Plaintiff moved that case be deferred to next term. Motion granted on payment of Costs by Plaintiff. Nov. 20th Alexander Cameron, witness, called by Defendant: taxed two days and mileage. $3.20 paid by Defendant.159 1872 Feb. 13 Plaintiff issued Subpoena for witnesses and two copies. May 17 Postponed to next opportunity, called in said morning again.

General Quarterly Court Records for Manitoba, 1870–72

623

David Hyde, sworn, examined by Pltff. Atty., cross-examined by Mr. Dubuc. Roderic Stevenson, sworn, examined by Mr. Walker, crossexamined by Mr. Dubuc. Edwd. Isbister, sworn, examined by Mr. Walker. Rob. Tait, sworn, examined by Mr. Dubuc, cross-examined by Mr. Walker. Alex. Cameron, sworn, examined by Mr. Dubuc, crossexamined by Mr. Walker. Action Dismissed – each party paying his own Costs. 1873 March 15

Taxed Bill of Costs between Attorney and Defendant. [D]12 No. 12

Andrew McDermot versus Alexander Dhall [Case 515] Royal & Dubuc D.M. Walker Plaintiff claims from Defendant £75.12.06 Sterling. 1871 July 12th July 19th July 26th August 19th August 21st August 31st 1873 March 12th

Plaintiff entered his Declaration, and a Summons was issued against the Defendant (39). Said Summons served on Defendant. Appearance entered on behalf of Defendant, with Demurrer160 and Pleas (39). Hearing on law; Monday 21st August 1871. Hearing of Demurrer161 – [victory] granted to Defendant. The Court ordered that the Plaintiff’s case be Dismissed with Costs. Taxed Bill Costs between Attorney and Plaintiff.162 [D]13 No. 13

François Vandal versus John Schultz [Case 516] Royal and Dubuc J. F. Baird The Plaintiff claims from Defendant a Debt of £32.10.00 Stg. 1871 July 12th Plaintiff’s Declaration entered and Summons issued against Defendant (40). July 19th Summons served on the Defendant. July 28th Appearance entered for Defendant and two Pleas fyled (40).

624

Law, Life, and Government at Red River

On Trial: The parties dispensed with a Jury by mutual consent. The following witnesses were sworn and examined for the Plaintiff, viz: François Charette. In Court: Action withdrawn on payment of Costs by Plaintiff. Defendant undertaking to pay one-half in money and onehalf in goods. Costs: Clerk’s fees from Plaintiff – $7.70. [D]14 No. 14

Jean Baptiste Lapointe versus Gilbert St. Luc [Case 517] Royal & Dubuc 1871 July 12th July 20th August 2nd August 5th

August 14th

D. M. Walker

Plaintiff’s Declaration entered and a Writ of Ejectment163 issued (41). Said Writ served on Defendant. Appearance entered for Defendant and Notice of Title (41). The Plaintiff took out Subpoenas for the following witnesses, viz: Octave Morin, John Diquere and Onesime Manseau (41). Defendant took out Subpoena for witnesses and copies for Damase Perrault, François Ducharme, François Ducharme [sic], Auguste Harrison, Charles Nolin and Augustin Grouette. On Trial – Jury sworn: 1. Andrew Spence 4. Wm. Dillworth 7. Baptiste Busier 10. François Falcon

2. George Adams 5. Wm. Kittson 8. Isidore Boyer 11. Danl. McDougal

3. Laurence Smith 6. Wm. Gaddy 9. Louis Boucher 12. Antoine Vandal

Plaintiff fyled Exhibit (A) and Exhibit (B). The following witnesses sworn for Plaintiff, viz: Octave Morin, John Diquere, and Onesime Manseau. And the following for the Defendant: François Ducharme, Augustin Grouette, François Ducharme [sic], Theophile Grouette, Charles Nolin, Gilbert St. Luc. Verdict for the Plaintiff. August 21st Plaintiff moved for Judgment. August 21st Judgment entered for Plaintiff according to the conclusions of the Declaration.

General Quarterly Court Records for Manitoba, 1870–72

625

Costs of Suit: to 3 witnesses for 4 day at 11/164 ea. per day: £6.12.00. [D]15 No. 15

Pierre Laverdure versus James Baldwin [Case 518] Royal & Dubuc 1871 July 26th July 29th August 2nd August 14th 1. Thos. White 2. Robt. Gunn 3. Dond. Flett

D. M. Walker

Plaintiff’s Declaration entered and a Writ of Ejectment issued (42). Said Writ served on the Defendant. Appearance entered for Defendant and Notice of Title (42). Defendant issued Subpoena and copy for John H. McTavish. On Trial – Jury sworn: 4. François Hemmand 5. Louis Plante 6. Romain Lagimonière

7. Thos. Slater 8. Wm. Setter 9. Wm. Johnston

10. Alexr. Morin 11. Cyril Marchand 12. Joseph Delorme

The following witnesses sworn for Plaintiff: Roger Goulet, Onesime Falcon, Baptiste Braconnier, John Mongenier. And for the Defendant: John H. McTavish, William B. Hall, James Baldwin. Verdict for Defendant with leave to move for a reversal of Judgment.165 [D]16 No. 16

Hudson’s Bay Company versus William Slater [Case 519] Royal & Dubuc for Plaintiffs The Plaintiffs claim from Defendant £28.10.00 Stg. on a Note of Hand. 1871 July 26th Plaintiffs’ Declaration entered and a Writ of Summons issued against the Defendant (43). July 28th Said Writ served on Defendant. Judgment for Plaintiff by Default. 1872 April 22 Execution issued: Note of Hand $ [sic: £] 28.10 or $140.00 166 rd Interest from date of note April 3 , 1871 to date of Judgment Aug. 21st 3.15

626

Law, Life, and Government at Red River

$143.15 Interest from date of Judgment to date of Execution @ 6 per c. 5.72 Costs 36.50 Fees for Execution 5.00 $190.37 [D]17 No. 17

Narcisse Marion versus John H. O’Donnell [Case 520] D. M. Walker H. J. Clarke Plaintiff claims from Defendant $130.00. 1871 August 2nd August 2nd August 17th August 19th 1871 Nov 20th [1872] March 2nd 1873 November 8 29 Dec. 15

“

Plaintiff’s Declaration entered and Summons issued against Defendant (44). Said Summons served against Defendant (44). Appearance entered by Defendant and Demurrer with Pleas.167 The case to lay over to next term, and stamp ordered to be offered to the note.168 Referred to next term by consent. Trial fixed for Monday.169 Record entered for trial. Verdict by Consent, for Plaintiff, for the sum of one hundred and forty one dollars and fifty cents. Fyled Record and Posted. Signed Judgment. Fyled Affidavit. Disbursements: Exhibit A, Judgment Roll and Bill [of] Costs. Taxed Bill [of] Costs. Issued Fi. Fa.170 goods. Fyled Praecipe.171 [D]18 No. 18

John Higgins versus George McKay [Case 521] D. M. Walker for Plaintiff The Plaintiff claims from Defendant the payment of $150.00. 1871 August 2nd

Plaintiff’s Declaration entered and a Summons issued against Defendant (45).

General Quarterly Court Records for Manitoba, 1870–72

August 7th August 16th

627

Said Summons served on the Defendant. The Plaintiff by his Atty. took out a Subpoena and two copies, viz: one each for Alexander Edgar and William Porter. Should be in Higgins v. Tait No. 1 (wh. see). Settled [D]19 No. 19

Henry McKenney versus Revd. James Suttee [Case 522] D. M. Walker for Plaintiff Plaintiff claims from Defendant a Debt of $180.00. 1871 August 2nd

Plaintiff’s Declaration entered and a Summons issued against the Defendant (46). Said summons served on the Defendant. Settled.

August 7th

[D]20 No. 20

John G. Sandermann versus Louis de Plainval [Case 523] D. M. Walker Mr. Clarke Atty. Genl.172 The Plaintiff claims from Defendant a Debt of $100.00. 1871 August 2nd August 2nd August 17th August 19th August 21st

1872 January 25

Plaintiff entered his Declaration and a Summons was issued against the Defendant (47). Said Summons served on the Defendant. Appearance entered with Demand of detailed Accounts.173 Court ordered detailed Account to be fyled by Monday 21st 1871. Judgment for Plaintiff: two month delay [in payment] with instalments: one-half in one month and the other half in another month – with Costs. Execution issued. [D]21 No. 21

Nicholas Courtelle versus Catharine Lacerte [Case 524] H. J. I. MacConville174 Royal and Dubuc The Plaintiff claims from Defendant £410.10.00 Stg.

628

1871 August 2nd August 5th August 9th August 9th

August 14

Nov. 20

Law, Life, and Government at Red River

The Plaintiff’s Declaration entered and a Writ of Summons issued (48). Said Summons served on the Defendant. Appearance entered on behalf of Defendant (48). Plaintiff took out Subpoena and a copy for each of the follg. witnesses: Baptiste Smith, Baptise Dupuis, and Gabriel Lafournasse. Defendant fyled Plea in answer to Plaintiff’s Declaration, and also Exhibit (A). This case to stand over till next term, Plaintiff not being ready. Plaintiff to pay the Costs of the case at this term. Costs of Suit, Augt. 1871: Defendant’s witnesses: £ s d Pierre Delorme 2 days @ 12/ pr. diem 1 4 0 André Carrière 3 “ “ 12/ pr. “ 1 16 0 George Ayot 2 “ “ 12/ “ “ 1 4 0 Baptiste Smith 3 “ “ 12/ “ “ 1 16 0 Lisa Berriault 2 “ “ 8/ “ “ 16 0 Josephte Lacoste 2 “ “ 8/ ” “ 16 0 Clerk’s Fees as per tariff 1 17 8 Plaintiff not appearing when called, the case was dismissed on motion of Defendant with Costs against the Plaintiff. Commentary

This was the last chapter, so far as the General Court was concerned, of a sad, seventeen-year-old story. Nicholas Courtelle was an elderly, and probably mentally unstable, man. He first appeared before the court in August 1854 as plaintiff in an action against the Sisters of Charity (Grey Nuns), to whom he had assigned all or most of his property in return for lifetime room and board at the convent. After a while, he claimed to have been expelled by the sisters and sued to get his property back (case 122, [B]74). He lost the action, but seems later to have been voluntarily released from the arrangement. Before long, Courtelle entered into a somewhat similar contract with Louis Thébeault, and several disputatious years ensued, during which the old man took Thébeault to court three times (case 162, [B]130, June 1859; case 230, [B]233, August 1862; and case 304, [C]76, February 1866), being successful on just the third occasion, and then only partially. His failure to show up for this final appearance in the General Court is unexplained, and Courtelle’s future fate is unknown.

General Quarterly Court Records for Manitoba, 1870–72

629

H.J.G. McConville, the lawyer who represented Courtelle in this last joust with the law, does not seem to have had a very extensive practice. He did not advertise his legal services in the newspapers. His fluency in both English and French, as well, perhaps, as the political neutrality that flowed from his newness to the province, had caused Lieutenant Governor Archibald to appoint him to conduct the investigation into the drowning of Elzéar Goulet in September 1870 – although his recommendations in that matter were ultimately ignored.175 [D]22 No. 22

Joseph Marion versus John H. O’Donnell [Case 525] D. M. Walker Henry J. H. Clarke The Plaintiff claims from Defendant the payment of $175.00 on a Note of Hand. 1871 August 2nd The Plaintiff’s Declaration entered, and a Summons issued (49). August 2nd Said Summons served on Defendant. August 12th Defendant fyled Appearance and Pleas (49). August 19th Judgment for Plaintiff with three months delay. [D]23 No. 23

John Schultz versus Thomas Spence [Case 526] John F. Bain Mr. Clarke, Atty. Genl. The Plaintiff claims from Defendant the payment of $350.00. 1871 August 2nd

Plaintiff’s Declaration entered and a Summons issued against the Defendant (50). August 4th Said Summons served on Defendant. August 17th Appearance and Demand fyled. On Trial – Jury sworn: 1. Archibald Wright 5. Romaine Lagimonière 9. Fredk. Fulcher 2. Donald Flett 6. Wm. Thomas Junr. 10. Wm. Johnstone 3. François Flammand 7. Thos. Slater 11. Thos. Norquay 4. Louis Plante Masters 8. Alfred Masters 12. Alexr. Daht [sic] Witnesses for Plaintiff sworn: Dr. Schultz the Plaintiff. Verdict: For Plaintiff for the amount demanded: £43.15.11. August 21st Plaintiff moved for Judgment. August 21st Judgment granted for Plaintiff.

630

Law, Life, and Government at Red River

[D]24 No. 24

James Cousins versus Honbl. John O’Donnell [Case 527] John F. Bain Mr. Clarke, Atty. Genl. The Plaintiff claims $700.00 from Defendant. 1871 August 2nd August 3rd August 17th August 19

August 19 1872 August 2

Summons issued against the Defendant (51). Said Summons served on the Defendant. Appearance entered with Pleas and [indecipherable – crossed out]. Defendant made application for a postponement on account of absence of a witness, as set forth in Affidavit fyled of Record. Application withdrawn. Judgment for Plaintiff, with four months delay. Execution issued to the Pltff. for $268.96: balance of Debt [&] Costs. [D]25 No. 25

Bannatyne & Begg versus Charles Begg 176 [Case 528] Royal & Dubuc for Plaintiff Plaintiffs claim £53.09.06 with Interest and Costs. 1871 August 5th August 7th August 12th

Summons issued against Defendant (53). Said Summons served on Defendant. Settled. [D]26 No. 26

Eric Anderson v. Peter Pruden [Case 529] H .J. H. Clarke D. M. Walker Plaintiff claims £336.00.00 Stg. 1871 August 5 August 16 August 26 Feb. 29th 1872 July 8

Summons issued by Plaintiff. Summons served on Defendant. Pleas fyled by Defendant. Judgment given for the Plaintiff. Execution issued

$1,680.00

General Quarterly Court Records for Manitoba, 1870–72

Costs Interest from 29 Feb 1871 Attorney’s fee for this writ Clerk’s do. 1873 March 15 18 “ 1874 March 23

631

97.50 $1,777.50 144.42 5.00 3.00 $1,929.92

Praecipe for Writ of Fi. Fa de Bonis.177 Writ issued. Writ Fi. Fa. de Bonis returned, endorsed Nulla Bona.178 Issued Certificate of Judgment and Memorial. Issued Fi. Fa. de Terris.179 [D]27 No. 27

Andrew McDermot versus Charles Garratt [Case 530] H. J. H. Clarke D. M. Walker The Plaintiff claims £50.00.00 Sterling. 1871 August 5th August 5th August 7th August 17th

Summons against Defendant issued. Plaintiff fyled Exhibit (54) No. 27. Summons served on Defendant. Appearance and Pleas entered, and £37 pounds in cash paid into Court.180 Defendant moved for a postponement to next term. Motion granted on payment of Costs.

August 21st “ “ [1872] Feb. 29th Postponed to next term by Consent. May 15th Subpoena issued by Def. for A. McDermot Senr. “ 18th Pltff. not ready to be called again this term in order. “ 21 Jurors sworn: No. 1. Jno. Setter 5. Cyrile Marchand 9. Auguste Ladouceur 2. Alf. Taylor 6. Alexr. Moran 10. Alf. Maclean 3. Pierre Paranteau 7. Pascal Leon 11.Thos. Slater [?] 4. François Delorme 8. Alexr. Bannerman 12. Albert Todd Andrew McDermot sworn, examined by Mr. Clarke, crossexamined by Mr. Walker. Andrew G. B. Bannatyne sworn, examined by Mr. Clarke, cross-examined by Mr. Walker. Charles Garratt sworn, examined by Mr. Walker, crossexamined by Mr. Walker.

632

Law, Life, and Government at Red River

[May] 25 June 13

June 20

Thomas Morrison sworn, examined by Mr. Walker, crossexamined by Mr. Clarke. John Conkwright sworn, examined by Mr. Walker. T. H. Barton sworn, examined by Mr. Walker. The Court and Jury addressed by Mr. Walker for the Defendant & H. J. H. Clarke for the Plaintiff. Verdict for the Plaintiff for £50.00.00 (the amount demanded). Judgment granted for the Pltff. Execution issued Debt $250.00 Costs 65.55 15 mos. int. on £50 22.50 338.05 [illegible] 1.20 Atty. fee 5.00 Clerk’s “ 2.50 $346.81 Writ of Ejectment issued. [D]28 No. 28

Andrew McDermot versus Charles Garratt [Case 531] H. J. H. Clarke D.M. Walker The Plaintiff claims £21.00.00 Sterling. 1871 August 5th August 5th August 17th August 21st

1872 Feb. 28 Feb. 29 May 15 18 21

Summons issued against Defendant (55). Said Summons served on Defendant. Appearance and Pleas fyled. Defendant moved for a postponement of the case till next term on the ground of the absence of an important witness. Motion granted on payment of Costs of the day. Subpoena & copy issued for Deft. Postponed to next term by consent. 2 Subpoenas issued by Deft. for A. McDermot & Jno. Konkwright [?] Pltff. not ready to be called again this term in order. Jury Sworn: No. 1. Wm. Work 5. Hy. Coutou 9. James Inkster 2. Thos. Kepling 6. John Badger 10. Morison McBeath 3. Edw. Pruden 7. Geo. Inkster 11. Donald Flett

General Quarterly Court Records for Manitoba, 1870–72

4. Josh. Lambert

[May] 25 June 13

633

8. John Inkster 12. James Taylor

Andrew McDermot sworn, examined by Mr. Clarke, and cross-examined by Mr. Walker. Andrew Strang sworn, examined by Mr. H. J. H. Clarke, cross-examined by Mr. Walker. Charles Garratt sworn, examined by Mr. Walker. Verdict for the Plaintiff. Judgment granted for the Plaintiff. Execution issued: Debt $105.00 9 Month Int. 4.72 Costs 46.05 $155.77 Int. to date of Ex. . 60 Atty. Fees 5.00 Clerk’s do. 2.00 $163.37

[D]29 No. 29 Alexander Murray versus Raphael Bellefeulle [Case 532] H. J. H. Clarke Royal & Dubuc Plaintiff claims £19.03.06 Sterling. 1871 Augt. 5th August 8th August 16th August 21

1872 April 9th

Summons issued against Defendant (56). Said Summons served on Defendant. Defendant fyled Appearance and Pleas in defence. On Trial: Witnesses sworn for Plaintiff – Onesimé Monchamp, Raphael Bellefeulle, Joseph Crowson, Andrew G. B. Bannatyne, Archibald Wright. Judgment for Plaintiff. Execution issued: Debt Interest on Debt from Jan 7th 1871 to Aug. 21 Taxed costs Interest on from 21st Aug. 1871 Fee for this Writ

£19.03.06 14.04 ½ 6.12.00 £26.09.10 ½ 19.10 1.00.00 £28.09.08 ½

634

Law, Life, and Government at Red River

[D]30 No. 30

Peter Mor wick versus Adam McDonald [Case 533] H. J. H. Clarke D. M. Walker Plaintiff claims £50.00.00. 1871 August 12th Summons against Deft. Issued. August 16th Said Summons served on Defendant. August 26th Plea fyled for Defendant. November Session 1871 Nov. 15 Plaintiff issued Subpoena for Robert Morwick as a witness. Nov. 25 Judgment for Costs by consent.181 [D]31 No. 31

John F. Grant versus William Brymner [Case 534] H. J. H. Clarke D. M. Walker Plaintiff claims £9.00.00 Sterling. 1871 August 5th August 5th August 19th August 14th Nov. 25th 1872 July 6th

Summons issued against Defendant. Summons served on Defendant. Summons returned. Appearance and Pleas entered for Defendant. Judgment for Costs by consent. Execution issued. Costs Interest on Costs from 25 Nov. 1871 Attorney’s fee for this Writ Clerks fee, do.

$29.75 1.08 5.00 1.00 $36.83

[D]32 No. 32

Lyster Haywood versus Hill, Griggs & Co. [Case 535] D. M. Walker 1871 Sept. 13th Sept. 23rd

Royal & Dubuc

Summons issued – $500.00. Appearance fyled for Defendant.

General Quarterly Court Records for Manitoba, 1870–72

Nov. 20

Settled. [D]33 No. 33

Joseph Crowson versus John M. Addshead [Case 536] D. M. Walker [for Plaintiff] 1871 Oct. 7th “ 11th Oct. 25th “ “ Oct. 25th 1872 January 9th

Summons issued. “ served on Deft. Judgment entered by Defendant for $50.75. Costs $17.25. Note of Hand fyled by Plaintiff. Execution issued $68.00. [D]34 No. 34

A. R. Gerold versus Duncan Nolan [Case 537] D. M. Walker [for Plaintiff] 1871 October 7th 8th

Writ of Summons issued. “ “ “ served on Defendant. Settled. [D]35 No. 35

Edward Comber versus Robert Tait [Case 538] Walker Royal & Dubuc Plaintiff claims $360.00. 1871 Oct. 6th Summons issued. Oct. 17th Appearance of pleas fyled for Defendant. November Session 1871 Nov. 20th To be heard first day of next term by mutual consent. 1872 Feb. 29th Postponed to next term by mutual consent. May 18 Postponed to next term by mutual consent. 1873 March 15 Taxed Bill Costs between Attorney and Defendant.182

635

636

Law, Life, and Government at Red River

[D]36 No. 36

John McKenzie versus Robert Tait [Case 539] Walker [for Plaintiff] Plaintiff claims $80.00. 1871 Oct. 6th Oct. 6th [1872] Feby. 29th

Summons issued. Summons served on Defendant. Judgment for Plaintiff by Default. [D]37 No. 37

Alexander M. Brown versus Dugald Sinclair & William McDougall [Case 540] Walker Bain Plaintiff claims $80.16. 1871 Oct. 19 Oct. 19 Nov. 3

Summons issued. Summons served. Appearance & Pleas fyled for Defendants. Settled [D]38 No. 38

Alexander M. Brown v. Walter [?] Davison & George Millar [Case 541] (Walker & Thibaudeau) (John F. Bain) Plaintiff claims $1,500. 1871 Oct. 28th Summons issued. Nov. 2nd Appearance & pleas fyled for Defendant. November Session 1871 Nov. 20th Referred to Arbitration by mutual consent, under order of the Court183 [D]39 No. 39

James Lynch v. Hill, Griggs et al.

General Quarterly Court Records for Manitoba, 1870–72

[Case 542] Walker Royal & Dubuc Plaintiff claims $300. 1871 Oct. 21 Nov. 4 Nov. 11 Nov. 20 1872 Feby. 29 [Jan.?] 22 April 20 May 15 17 1873 January 13 March 12

Summons issued. Summons served on Defendants. Appearance & Pleas fyled for Defendants. Postponed to next term by mutual consent. Postponed to next term by consent. Commission issued by Judge Johnson for examination of witnesses.184 Return of Commission and Examinations. Notice filed of Interrogatories.185 Postponed to next term by consent. Record entered. Taxed Bill Costs between Attorney & Defendant. [D]40 No. 40

George Emerling versus E. L. Barber [Case 543] Royal & Dubuc John F. Bain Plaintiff claims £311.00.00. 1871 Oct. 25 Oct. 25 Nov. 12 Nov. 29

Summons issued. Summons served on Deft. Plea fyled for Defendant. Judgment for Plaintiff with one month’s delay. [D]41 No. 41

Andrew McDermot versus Kenneth McBain [Case 544] Royal & Dubuc [for Plaintiff] Plaintiff claims £30.00.00. 1871 Oct. 27 Nov. 2 Nov. 20 Nov. 21

Summons issued. Summons served on Defendant. [blank] Judgment by Default.

637

638

Law, Life, and Government at Red River

[D]42 No. 42

Thomas Lusted versus William Dease Junr. [Case 545] Plaintiff claims £18.00.00. 1871 Nov. 3 Summons issued. Nov. 4 Summons served on Defendant. November Session 1871 Nov. 20 Withdrawn. [D]43 No. 43

Hall versus Lousden [Case 546] John F. Bain [for Plaintiff] [Plaintiff claims] $50.00. 1871 Nov. 4

Writ of Summons issued by Plaintiff. (Nov. Session 1871) Settled. [D]44 No. 44

John McKenny versus John Omand [Case 547] Walker [for Plaintiff] Plaintiff claims $350.00 1871 Nov. 4 Dec. 16

Summons issued by Plaintiff. Summons served on Defendant. (Feb. Session 1872) Settled. [D]45 No. 45

Colborne Frazier versus Hill Griggs et al. [Case 548] Walker & Thibaudeau Royal & Dubuc Plaintiff claims $230.00. 1871 Nov. 4

Summons issued.

General Quarterly Court Records for Manitoba, 1870–72

Nov. 4 Nov. 11 Nov. 20 1872 Feb. 29 Jan. 22 April 20 May 15 May 18 21

639

Summons served on Defendants. Appearance & Pleas fyled for Defendants. Postponed to next term by mutual consent. Postponed to next term by mutual consent. Commission issued by Judge Johnson for examination of witnesses. Return of Commission and Examinations. Notice filed of Interrogation. Subpoena issued to Deft. for Bill.186 Postponed till Monday 20th May. Jury sworn: No. 1. David Spence 5. Josh. Leclaire 9. Baptiste Dupuis 2. John [Harper?] 6. Chas. N [?] 10. Antoine Allary 3. John Sutherland 7. Andre Carrière 11. Baptise Ducharme 4. John Knight 8. Jno. McNab 12. Antoine Jobain

[May] 25

Mrs. Colborne Frazier sworn, examined by Mr. Walker, crossexamined by Mr. Royal. Mrs. L. du Plainval sworn, examined by Mr. Walker. Rice Howard sworn, examined by Mr. Royal, cross-examined by Mr. Walker. E. H. Dickinson sworn, examined by Mr. Royal, crossexamined by Mr. Walker. Charles N. Bell sworn, examined by Mr. Royal. The Court & Jury addressed by Mr. Royal & Mr. H. J. Clarke for the Defence, & by Mr. Walker for the Prosecution. The learned Judge charged the Jury. Verdict for the Plaintiff. Judgment granted for the Pltff. [D]46 No. 46

John Schultz versus David Tait [Case 549] John F. Bain [for Plaintiff] Plaintiff claims $300.00. 1871 Nov. 4 Summons issued by Plaintiff. Nov. Session 1871 Nov. 20th Settled.

640

Law, Life, and Government at Red River

[D]47 No. 47

John Schultz versus Kennedy [Case 550] John F. Bain [for Plaintiff] Plaintiff claims $30.00. 1871 Nov. 4th [1872] Feby. 29

Summons issued by Plaintiff. No Return.187 [D]48 No. 48

Philip Hussey versus Manitoba Brewery Company [Case 551] Walker & Thibaudeau John F. Bain Plaintiff claims $200.00 1871 Nov. 4 Summons issued. Nov. 4 Summons served on Defendant. Nov. 15 Pleas fyled for Defendants. November Session 1871 Nov. 20th Parties by consent Dispense with a Jury. Nov. 20th Philip Hussey sworn, being Plaintiff, examined, and crossexamined, and re-examined. “ “ Alexr. Begg, Secretary of Manitoba Brewery Coy., sworn, examined The action Dismissed with Costs to Defendants. Nov. 20th [D]49 No. 49

Joseph Cadman versus Manitoba Brewery Company [Case 552] Walker & Thibaudeau Bain Plaintiff claims $100.00. 1871 Nov. 4 Nov. 15 1872 Feb. 29 May 10 “ 17 June 3

Summons issued by Defendant. Pleas fyled for Defendants. Postponed to Next Term by mutual Consent. Subpoena for Pltff. for A. Begg. Postponed to first of next term on payment in Costs of [illegible] by Defendant. Execution issued by Pltff. for Costs of the day: $16.20.

General Quarterly Court Records for Manitoba, 1870–72

1873 January 13 June 9

641

Record entered. Record withdrawn.188 [D]50 No. 50

William Cosgrove versus A. G. B. Bannatyne & John F. Bain [Case 553] Walker & Thibaudeau [for Plaintiff]189 Plaintiff claims ($5,000.00) Five Thousand Dollars 1871 November 4th Writ of Summons issued by Plaintiff. [D]51 No. 51

Erastus J. Edgerton versus Joshua M. House [Case 554] Royal & Dubuc Walker, Thibeaudeau & Howard Plaintiff claims $5,098.66. 1871 Nov. 8 Nov. 9 1872 January 5th “ 5th Feby. April 24 May 17 1873 February 12 June 7 12 24 “

Summons issued. Summons served on Defendant. Plea fyled for Defendant. Appearance fyled for Defendant. Postponed to next term by mutual consent. Subpoena issued for Dr. J. Schultz for Deft. Postponed to next term by mutual consent.

Order fyled. Commissions to examine witnesses issued. Record entered for Trial. Subpoena for Plaintiff. Affidavit of J. M. House and D. M. Walker fyled. Application for Delay of trial till next term granted Defendant on said Defendant paying Costs of the day to Plaintiff with Conduct Money190 of witnesses from Province: trial to be had peremptorily on first day of said next term. July 2 Taxed & fyled Bill of Costs191 of day. August 28 Fyled Order to issue Commission to H. E. Mann. 29 Commission issued to H. E. Mann. November 7 Bill of Particulars fyled by Plaintiff.192 “ “ Record re-entered for Trial.

642

Law, Life, and Government at Red River

“ 20

“ 29 1874 March 7 April 21 22

Trial had. Fyled Exhibits A, B, C, D, E, F, G, H, J, K, L, M, N, O, P, Q, R, S, T, U, V, W, X, Y, Z, AA, BB, CC, DD, EE. Verdict accorded for Plaintiff. Motion and Affidavit for Rule Nisi.193 Rule granted on 13th December. Rule [Nisi] discharged. Signed Judgment and taxed Bill Costs. Issued Fieri Facias de Bonis. [D]52 No. 52

F. C. Mercer versus William Dease Junr. [Case 555] John F. Bain D. M. Walker Plaintiff claims $200. 1871 Nov. 3rd Summons issued. Nov. 4th Summons served on Defendant. Nov. 17th Pleas fyled for Defendant. November Session 1871 Nov. 20th By consent the parties Dispensed with a Jury. “ “ Plaintiff sworn, examined, cross-examined (Bain[’s witness]). “ “ Exhibit A handed in by Plaintiff and fyled (Bain). “ “ Mr. Farquharson sworn, examined, cross-examined (Bain[’s witness]). “ “ Abraham Parisien, sworn, examined, cross-examined (Bain[’s witness]). “ “ Mr. Kinsey sworn, examined, cross-examined (Bain[’s witness]). “ “ Wm. Dease sworn, examined, cross-examined (defence [witness]). Nov. 20 The Court gave Judgment for the value of two cook stoves and three box stoves: the cook stoves at £8.00.00 each and the box stoves at £3.10.00 each = $132.50 [D]53 No. 53

Erastus E. Edgerton versus Ryder Larsen [Case 556] Royal & Dubuc [for Plaintiff] Plaintiff claims £557 Stg.

General Quarterly Court Records for Manitoba, 1870–72

[1871] Nov. 20 1872 Feb. 29

643

Writ of Summons issued by Plaintiff. Settled. Commentary

Despite its paucity of detail, this is an intriguing little case because the defendant was a fugitive from justice, having absconded while under bail on charges of murder (case 455) and larceny (case 469). How, then, could he now have “settled” with the plaintiff? Perhaps he left a power of attorney in the hands of some acquaintance, who reached agreement with Edgerton on Larsen’s behalf. As it turned out, however, Edgerton must have failed to recover anything under the settlement agreement because he would sue Larsen again in April 1872 (case 638, [D]138) for £598, the amount enlarged, no doubt, by interest. That claim would net the plaintiff nothing more than a certificate of judgment that could be registered against property, if any, that the defendant might possess. [D]54 No. 54

John F. Robinson versus James Taylor [Case 557] Walker, Thibaudeau and Howard [for Plaintiff] Plaintiff claims £79.00.00 Sterling. 1871 Novr. 27 Decr. 14 1872 Feb. 29 July 25

Summons issued by Plaintiff. Summons served on Defendant. Judgment for Plaintiff by Default. Execution issued: £79.0.0 $395.00 Taxed Costs 97.25 Interest on 492.25 at the rate of 6% per annum from 29 Feb. 1872 12.00 Attorney’s fees for this Writ 5.00 Clerk’s fees do. 3.00 $512.25 [D]55 No. 55

J. F. Robinson versus John Klyne [Case 558] Walker, Thibaudeau & Howard J. F. Bain Plaintiff claims £7.07.01 Sterling.

644

[1871] Dec. 26 Feb. 5 1872 Feb. 29 Feb. 29 May 17

Law, Life, and Government at Red River

Summons issued. Plea filed. Defendant [not?] ready to go to trial. Postponed to next term – Defendant to pay the Costs of the day. Postponed to next term. Plaintiff to pay the Costs of the day. [D]56 No. 56

J. F. Robinson versus George Klyne [Case 559] Walker, Thibaudeau & Howard J. F. Bain Plaintiff claims £5.00.00. Sterling. 1871 Dec. 28th 1872 Jan. 30th Feb. 7th Feb. 29th May 17

Summons issued. Plea fyled and ten dollars in cash paid into Court. Paid to Plaintiff’s Attorney four dollars (as per receipt). Postponed to next term – Defendant to pay the Costs of the day. Postponed to next term – Plaintiff to pay the Costs of the day. [D]57 No. 57

Hill et al versus John Schultz [Case 560] Walker Thibaudeau & Howard [for Plaintiff] Plaintiff claims $500.00. 1871 Dec. 15th 28

1872 Feby. 29

Summons served on Defendant. Entered by Default for Interest at 6 p/c Costs taxed Total Judgment, Interest & Costs

$482.25 Debt 2.00 75.00 $559.25

Settled.194 [D]58 No. 58

Donald McDonald v. James Peebles

General Quarterly Court Records for Manitoba, 1870–72

645

[Case 561] John F. Bain H. J. H. Clark Q.C. Plaintiff claims £30.00.00. 1872 January 11th Summons issued. 15 Appearance and Plea entered. Feb. 27 Subpoena and two copies issued for Duncan McDonald & Adam Black. Feb. 29 Postponed to next term – Defendant to pay Costs of the day. May 6th Subpoenas issued by Deft. for William Pruden, Jacob Smith, Adam McDonald Junr., Alex McDonald Junr., John Ross, William Corrigal, Jas. Taylor, Wm. Setter, Wm. Sutherland, James Ross, Morris Bird, Thomas Mowat, Donald McDonald Junr., Geo Ross, Wm. Frank. May 14 Seven Subpoenas issued by Plaintiff. 18 Deft. not ready to be called again this term in order. 22 Jury sworn: No. 1. John Knight 5. Alfred Masters 9. Martin Cook 2. David Spence 6. Alexr. Taylor 10. John Sutherland 3. John Harper 7. John McNab 11. Wm. Gowler 4. Josh. Leclaire 8. Alexr. Templeton 12. Thos. Slater Charles Johnson, sworn, Cuthbert McDonald, Adam McDonald, Chas. McDonald, Francis Gibson, Duncan McDonald, Adam Black all sworn, examined by Mr. Bain & cross-examined by Mr. J. H. Clarke. James Peebles, Wm. Pruden, Alexr. McDonald, John Ross, W. Corrigal, James Taylor, W. Settee, W. Sutherland, James Ross, Morris Bird, Thomas Mowat, George Ross, Donald McDonald, Andrew Peebles, Wm. Franks [sic], all sworn and examined by Mr. J. H. Clarke and cross-examined by Mr. Bain. Adam Black re examined by Mr. Bain. Court and Jury addressed by Mr. H. J. H. Clarke for the Defence, and by Mr. Bain for the Plaintiff. The learned Judge addressed the Jury.

[May] 25 1872 Aug. 2

Verdict for the Plaintiff for value of horse: £25.00.00. Judgment granted for £15.00.00 [sic?]195 Fyled Praecipe for Writ of Fi. Fa.

646

“

Law, Life, and Government at Red River

Writ issued for amount of Judgment. [D]59 No. 59

Dr. John Schultz v. Saml. Kennedy [Case 562] John F. Bain [for Plaintiff] Plaintiff claims £16.00.00 1872 Jan. 5th Feby. 29

Summons issued. No Return. [D]60 No. 60

Dr. John Schultz v J. B. Holmes [Case 563] John F. Bain [for Plaintiff] Plaintiff claims $50.00. 1872 Jan. 5th Feb. 29

Summons issued. Settled. [D]61 No. 61

Wm. Drever Sen. v. Modeste Lagemonière [Case 564] John F. Bain Royal & Dubuc Plaintiff claims £13.00.00. 1872 Jan. 5th 15th Feb. 29

Summons issued. Plea fyled for Deft. Judgment for Plaintiff with four months’ delay from date to Execution. [D]62 No. 62

Dr. John Schultz v. Michael Meeham [Case 565] John F. Bain [for Plaintiff] Plaintiff claims £20.00.00. 1872 Jan. 5th Feb. 29

Summons issued. Judgment for Plaintiff.

General Quarterly Court Records for Manitoba, 1870–72

[D]63 No. 63

A. Boyd v. T [?] Struthers [Case 566] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims £95.13.10. 1872 Jan. 6th Feb. 29

Summons issued. Settled. [D]64 No. 64

Lyster Hayward versus T [?] Struthers [Case 567] Walker, Thibeaudau & Howard [for Plaintiff] Plaintiff claims $350.00. 1872 Jan. 5th Feb. 29

Summons issued. Settled. [D]65 No. 65

John Taylor v. John McKay [Case 568] Walker, Thibeaudau & Howard [for Plaintiff] Plaintiff claims £9.00.00. 1872 Jan. 9 Feb. 29

Summons issued. Judgment for Plaintiff by Default. [D]66 No. 66

John Taylor v. Baptiste Leviolette [Case 569] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims £146.13.06 [?] 1872 Jan. 9 Feb. 29

Summons issued. Judgment for Plaintiff by Default. [D]67 No. 67

John Taylor v. Basile Lucier

647

648

Law, Life, and Government at Red River

[Case 570] Walker, Thibeaudau & Howard [for Plaintiff] Plaintiff claims £5.00.00 [?] 1872 Jan. 9 Jan. 23 Feb. 29

Summons issued. Summons served on Defendant. Judgment for Plaintiff by Default. [D]68 No. 68

John Taylor v. Louison Dejerlay [Case 571] Walker, Thibeaudau & Howard Royal & Dubuc Plaintiff claims £17.00.00. 1872 Jan. 9 18 Feb. 29

Summons issued – Served Jany. 12th 1872. Plea fyled for Deft. Settled. [D]69 No. 69

John Taylor v. John Bias [Case 572] (Walker, Thibeaudau & Howard) Plaintiff claims £13.00.00. 1872 Jan. 9 Feb. 29

Summons issued. Settled. [D]70 No. 70

Alexander McArthur and John Martin v. Walker, Davison and George Miller [Case 573] John F. Bain 1872 Jan. 9 15 Feb. 29

Walker, Thibaudeau & Howard Plaintiffs claim $356.45.

Summons issued. Appearance fyled. Settled. [D]71 No. 71

David Tait v. Charles Lavallée

General Quarterly Court Records for Manitoba, 1870–72

[Case 574] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims £9.08.06 on [?] 1872 Jan. 10 Jany. 26 Feb. 29

Summons issued. Summons served on Defendant. Judgment for Plaintiff – by Default. [D]72 No. 72

Henry Mayenyest v. John Bremerman [Case 575] Walker, Thibaudeau & Howard J. F. Bain Plaintiff claims $1,000.00 Damages. 1872 Jan. 10 Feb. 29 May 22

Summons issued. Judgment for Plaintiff – by Default. Judgment withdrawn by the consent of the Plaintiff. [D]73 No. 73

W. G. Fonseca v. François Ducharme [Case 576] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims £6.00.07. 1872 Jan. 13 Feb. 29

Summons issued. Settled. [D]74 No. 74

W. G. Fonseca v. Norbert Nolin [Case 577] Walker, Thibaudeau & Howard [for Plaintiff] 1872 Jan. 13 Feb. 1 Feb. 29

Summons issued. Summons served on the Defendant. Judgment for Plaintiff by Default. [D]75 No. 75

William Cosgrove v. Alexander G. B. Bannatyne, Robert Cunningham & John F. Bain [Case 578] 196

649

650

Law, Life, and Government at Red River

Walker, Thibaudeau & Howard H. J. H. Clarke QC John F. Bain Plaintiff claims $5,000. 1872 Jan. 13 Summons issued. Feb. 1 Summons served on Defendant. Feb. 15 H. J. H. Clarke having Withdrawn his Appearance & Demurrer. Feb. 24 By John F. Bain for Defendant: Appearance & Plea fyled for the Defendants. Feb. 29th Judgment for Defendants [illegible word]. March 28th Deft’s costs taxed at $61.50 [illegible words]. April 3rd Execution issued. [D]76 No. 76

Edward Lennon, Plttff. v. Alexander G. B. Bannatyne, Robert Cunningham and John F. Bain, Defts [Case 579] 197 Walker, Thibaudeau & Howard for Pltff. John F. Bain H. J. H. Clarke Q.C. Plaintiff claims $5,000. 1872 Jan. 13 Summons issued. Feb. 1 Summons served on Defendant. Feb. 15 H. J. H. Clarke withdrew – Appearance and Demurrer Feb. 24th By John F. Bain: Appearance and Plea fyled for the Defendants. Record Withdrawn with leave to Defendant to move on Feb. 29th Monday for Judgment of Nonsuit. Monday fixed for hearing on law. [March] Monday 4th Postponement to next term. May 15 Subpoena issued for Wm. Acres. 18 Deft. not ready to be called again this term in its order. 21 Jury sworn: 1. Tho. Slater 2. Alfr. Masters 3. Augustin Ladouceur 4. Alexander Bannerman 5. Pascal Leon 6. Alexr. Moran 7. Cyrile Marchand 8. François Delorme 9. Pierre Parenteau 10. Alexr. Taylor 11. John Setter 12. James Taylor

June 4

Verdict of Nonsuit. Costs taxed at $66.50.

General Quarterly Court Records for Manitoba, 1870–72

651

[D]77 No. 77

John Anderson v. Roderick Stevenson [Case 580] Walker, Thibaudeau & Howard Plaintiff claims $250.00.

J. F. Bain

1872 Jan. 17 Summons issued. Jan. 19 Summons served on Deft. 31 Subpoena issued for John Stevenson & James Johnson. Feb. 17 Plea filed. On Trial: Jury sworn: Feb. 19th 1. Wm. Dease 2. John Norquay 3. James Tait 4. Thomas McNab 5. James McBain 6. Peter Harkness 7. Peter Bruce 8. George Tait 9. Joseph Hogg 10. James Good 11. Chas. Millhone 12. Felix Hayden

Feb. 29 July 27

For Plaintiff – Witnesses sworn: John Anderson, Exhibit (A) put in and read. John Stevenson, sworn, examined. Verdict for the Defendant. Execution issued for Costs $52.25 Interest 1.25 53.50 Attorney’s fee 5.00 Clerk’s fee 1.00 $59.50 [D]78 No. 78

Chisholm & Bubar v. James Bedman, Blacksmith of the Town of Winnipeg [Case 581] John F. Bain [for Plaintiff] Plaintiff claims $394.00. 1872 Jan. 17 March 4 July 19

Summons issued. Settled. Judgment signed by Plaintiff for $133.16. Execution issued: Levy $123.16 Taxed Costs 32.00 Interest on 155.66 from 4th March 3.50

652

Law, Life, and Government at Red River

Attorney’s Fees for this trial Clerk’s Fees, do. Aug. 19

Sheriff’s Return “Nulla Bona.” Angus R. Chisholm returned

26 1873 Septr. 23

5.00 2.00 $166.16 1.25 167.41 2.00 169.41

George A. Bubar, of the Town of Winnipeg, County of Selkirk Province of Manitoba, Miller and copartners in trade, carrying on business under the firm of Chisholm and Bubar. Certificate of Judgment for Registration198 Issued Fi. Fa. lands and [illegible]. [D]79 No. 79

William Dease Jun. v. Henry Coutu [Case 582] John F. Bain [for Plaintiff] Plaintiff claims £14.00.00. 1872 Jan. 17 Feb. 29

Summons issued. Settled. [D]80 No. 80

Joseph McDurmitt v. Duncan Nolin [Case 583] Walker Thibaudeau & Howard [for Plaintiff] Plaintiff claims £40.00.00. 1872 Jan. 18 Feb. 29

Summons issued. Settled. [D]81 No. 81

David Tait v. Robert Hastie [Case 584] H. J. H. Clarke Q.C. Walker, Thibaudeau & Howard Plaintiff claims $76.00 1872 Jan. 20

Summons issued.

General Quarterly Court Records for Manitoba, 1870–72

31 Feb. 3 Feb. 29 May 18

Summons served on Deft. Appearance fyled. Postponed to next term by consent. Plaintiff not ready to be called again this term in order. Judgment for back rent & Deft to leave the house in fifteen days. Each party pay their own Costs. [D]82 No. 82

Andrew McDermot v. Keneth McBain [Case 585] H. J. H. Clarke Q.C. [for Plaintiff] Plaintiff claims $215.00. 1872 Jan. 20 Feb. 29

Summons issued. Settled. [D]83 No. 83

Andrew McDermot v. William Smith [Case 586] H. J. H. Clarke Q.C. [for Plaintiff] Plaintiff claims $1,177.00. 1872 Jan. 20 Feb. 29

Summons issued. Settled. [D]84 No. 84

Joshua M. House v. Baptiste DesJerlais [Case 587] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $38.55. 1872 Jan. 20 Feb. 29

653

Summons issued. Settled. [D]85 No. 85

Joshua M. House v. Baptiste Lafrenière [Case 588] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $79.27.

654

1872 Jan. 20 Feb. 29 May 17

Law, Life, and Government at Red River

Summons issued. [illegible] Judgment for Plaintiff by Default. [D]86 No. 86

Joshua M. House v. Louison Sear [Case 589] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $64.35. 1872 Jan. 20 Jan. 25 Feb. 29

Summons issued. Summons served on Defendant. Judgment entered for Plaintiff by Default. [D]87 No. 87

Joshua M. House v. Basil Lussier [Case 590] (Walker, Thibaudeau & Walker) Plaintiff claims $90.32. 1872 Jan. 20 Jan. 25 Feb. 29

Summons issued. Summons served on Defendant. Settled. [D]88 No. 88

Joshua M. House and Charles H. House v. Abram Parisien [Case 591] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $28.82. 1872 Jan. 20 Feb. 29

Summons issued. Settled. [D]89 No. 89

Joshua M. House and Charles H. House v. Jean B. Fayant [Case 592] Walker, Thibaudeau & Howard Royal & Dubuc Plaintiff claims $59.02.

General Quarterly Court Records for Manitoba, 1870–72

1872 Jan. 20 Jany. 25 Feb. 10 Feb. 29

655

Summons issued. Summons served on Defendant. Plea fyled. Settled. [D]90 No. 90

Joshua M. House and Charles H. House v. Daniel Ross [Case 593] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $35.90. 1872 Jan. 20 Feb. 29

Summons issued. Settled. [D]91 No. 91

Charles H. House v. George Hodgson [Case 594] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $29.45. 1872 Jan. 20 Feb. 29

Summons issued. Settled. [D]92 No. 92

J. R. Benson v. L. de Plainval [Case 595] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $100.00 1872 Jan. 23 Feb. 29

Summons issued. Settled. [D]93 [missing] [D]94 [missing] [D]95 No. 95

Joshua M. House v. Amable Lucier

656

Law, Life, and Government at Red River

[Case 596] Walker, Thibaudeau & Howard Royal & Dubuc Plaintiff claims $100.00. 1872 Jan. 27 Feb. 1 Feb. 12 20 Feb. 29 March 4 May 6 May 10th May 17

Summons issued. Summons served on Defendant. Plea fyled. Subpoena issued for Pltff. Postponed to Monday, March 4th by consent. Referred to next term. Three Subpoenas issued by Pltff. Subpoena issued by Deft for Alexr. Arcand. Settled. [D]96 No. 96

Maurice Loman & John Inkster, Executor of the last Will & Testament of Wm. Inkster, Deceased, Pltff. v. Henry Coutu, Deft. [Case 597] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims £20.8.2. 1872 Jan. 27 Feb. 17 Feb. 29 1872 May 8

Summons issued. Summons served on Defendant. Judgment for Plaintiff by Default. Writ of Execution issued

Debt Costs

Interest on from 29 Feb. 1872 Fee for this Writ

$102.04 29.71 $131.75 14.82 5.00 $151.57

[D]97 No. 97

Charles Garratt v. William Diamond [Case 598] Walker, Thibaudeau & Howard Plaintiff claims $29.75. 1872 Jan. 27

Summons issued.

J. F. Bain

General Quarterly Court Records for Manitoba, 1870–72

Jan. 29 Feb. 9 28 Feb. 29 May 13 17

657

Summons served on Defendant. Plea fyled. 1 Subpoena & 3 copies issued for Pltff. Postponed to next term, Defendant paying Costs. Subpoena issued by Pltff. for George Ga[illegible] Settled. [D]98 No. 98

Andrew G. B. Bannatyne v. Robert Sutherland [Case 599] H. J. H. Clarke, Q.C. [for Plaintiff] Plaintiff claims $70.75. 1872 Jan. 27 Feb. 29

Summons issued. Judgment for Plaintiff by Default. [D]99 No. 99

John Schultz v. Roland P. Meade [Case 600] John F. Bain [for Plaintiff] Plaintiff claims £10.2.10. 1872 Jan. 30 Feb. 29

Summons issued. Settled. [D]100 No. 100

John Schultz v François Ducharme [Case 601] John F. Bain [for Plaintiff] Plaintiff claims £8.09.10. 1872 Jan. 30 Feb. 29

Summons issued. Judgment for Plaintiff by Default. [D]101 No. 101

Maurice J. G. Lowman v. James Taylor, the Younger [Case 602] John F. Bain [for Plaintiff] Plaintiff claims £40.04.00.

658

1872 Jan. 30 Feb. 29 May 17

Law, Life, and Government at Red River

Summons issued. No Return. Postponed to next term. Settled. [D]102 No. 102

Joshua M. House and Charles H. House v. Jean Baptiste Faynant [Case 603] Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $128.00. 1872 Jan. 30 Feb. 1 “ 29

Summons issued. Summons served on Defendant. Settled. [D]103 No. 103

Joshua M. House v. Antoine Dejarlais [Case 604] Walker, Thibaudeau & Howard Royal & Dubuc Plaintiff claims £48.18.06 Stg. 1872 Jan. 30 Feb. 3 Feb. 13 Feb. 29 May 18 22

Summons issued. Summons served on Defendant. Plea fyled. Settled. Postponed to be called any day this term to consent 21st May. Note of Hand filed as Exhibit A. [D]104 No. 104

J. M. House v. Paulette Chatras [Case 605] Walker Thibaudeau & Howard Royal & Dubuc Plaintiff claims $100.00. 1872 Jan. 30 Feb. 3 Feb. 13 Feb. 29

Summons issued. Summons served on Defendant. Appearance and Plea fyled for Deft. Referred to next term with costs to Plaintiff – subject to special application if necessary.

General Quarterly Court Records for Manitoba, 1870–72

May 17

659

Record Withdrawn. Pltff. to pay Costs: 2 witnesses – John Deslaurier and Antoine Dejarlais. Time and Travelling Expences – each coming 80 miles @ 104 per mile $16.00 do. returning 80 miles @ 104 “ “ $16.00 do. 7 days expenses @ $1.00 “ “ $14.00 $46.00 [D]105 No. 105

J. M. House and Charles H. House v. Pierre Chatrass [Case 606] Walker, Thibaudeau & Walker H. J. H. Clarke Q.C. Plaintiff claims £279.00.00 Stg. 1872 Jan. 30 Summons issued. Feby. 3 Summons served on Defendant. Feb. 15 Plea fyled for Deft. & Statement of Accounts. Mar. 1 Postponed to next term subject to special application. Mar. 4 Costs of the day to Defendant. May 18 Postponed to Monday 20th May. 20 Subpoena issued to Pltff. for A. S Cowley. 21 Jury sworn: No. 1. Donald Flett 5. John Badge 9. Edward Pruden 2. Morison McBeath 6. George Inkster 10. Thos. Kepling 3. John Inkster 7. Hy. Coutois 11. Wm. Work 4. James Inkster 8. Josh. Lambert 12. James Taylor

22

Joshua M. House, sworn, examined by Mr. Walker, cross examined by Mr. H. J. H. Clarke. Court Adjourned to 10:00 22nd . Jury called. Joshua M. House examination continued by Mr. Walker. John Norquay sworn examined by Mr. Walker, cross examined by Mr. H. J. H. Clarke, and re-examined by Mr. Walker. Archibald S. Cowley, sworn, examined by Mr. Walker. Charles H. House sworn, examined by Mr. Walker, cross examined by Mr. Clarke. Andrew G. Bannatyne, sworn, examined by Mr. Clarke, cross examined by Mr. Walker.

660

Law, Life, and Government at Red River

June 4

Tuscand Lusier, sworn, examined by Mr. Clarke, cross examined by Mr. Walker Court & Jury addressed by Mr. H. J. H. Clarke for the Defence, and by Mr. Walker for the Plaintiff. The learned Judge charged the Jury. Verdict for the Plaintiff for the amount demanded, without interest: £242.00.00. Execution issued $1210.00 Costs taxed 90.00 [?] Interest [illegible] $1,323.78 [D]106 No. 106

J. M. House v. D. Shay [Case 607(1)] 199 Walker, Thibaudeau & Howard [for Plaintiff] Plaintiff claims $144.50. 1872 Jan. 30 Feb. 15 Feb. 29 June 4

21

Summons issued. Summons served on Deft. with the Atty. Gen.200 [Default] Judgment for the Plaintiff. Execution issued: Levy $144.50 Taxed Costs 52.70 Interest on 197.20 from 29th Feb. 1872 3.00 Fee for this Trial 5.00 Clerk’s fee 1.50 $206.70 Constable’s Affidavit filed. [D]107 [This page has been crossed out in the text and is blank in the Index, [D]2.] No. 107

John McKenney v. John Omand [Case 608] Walker Thibaudeau & Howard [for Plaintiff] Plaintiff claims $350.00 [blank: 1872?] Nov. 28 Summons issued by Plaintiff. Dec. 16 Summons served on Defendant.

General Quarterly Court Records for Manitoba, 1870–72

661

[D]108 No. 108

Robert Hastie v. David Tait [Case 609] Walker, Thibaudeau & Howard H. J. H. Clarke Q.C., Atty. Gen. Plaintiff claims $100.00. 1872 Feb.1 Summons issued. Feb. 2 Summons served on the Defendant. Feb. 15 Appearance & Plea filed. April 23 Subpoena issued for John Knight witness for Pltff. May 18 Postponed to the 20th May. Settled. Each party to pay their own Costs. [D]109 No. 109

John C. Boeneman and Donald McLeod v. Henry Field [Case 610] J. F. Bain [for Plaintiff] Plaintiff claims £30.00.00. 1872 Feb. 1 Feb. 29

Summons issued. Settled. [D]110 No. 110

John Schultz v. John R. Matheson [Case 611] J. F. Bain [for Plaintiff] Plaintiff claims £6.05.06. 1872 Feb. 1 29

Summons issued. Judgment for Plaintiff by Default. [D]111 No. 111

John C. Brenneman and Donald McLeod v. John McKay [Case 612] John F. Bain f[or Plaintiff] Plaintiff claims £25.0.0. 1872 Feby. 1

Summons issued. No Return.

662

Law, Life, and Government at Red River

[D]112 No. 112

John Higgins v. John G. Geddes [Case 613] Walker Thibaudeau & Howard [for Plaintiff] Plaintiff claims $165.09. 1872 Feb. 3 Feb. 29

Summons issued. Settled. [D]113 No. 113

Wrixon v. Bannatyne [Case 614] Walker Thibaudeau & Howard H. J. H. Clarke Q.C., Atty. Gen. Plaintiff claims $100.00. 1872 Feb. 3 Summons issued. Feby. 3 Summons served on Defendant. 15 Appearance and Plea filed. Feb. 29 Postponed to next time. May 18 The following Jury were called and duly Sworn: 1. John Badge 4. David Spence 7. Jno. Inkster 2. Alexr. Taylor 5. Jno. Harper 8. W. Gowler 3. John McNab 6. George Inkster 9. Jas. Inkster 10. Morison McBeath 11. Jno. Sutherland 12. Alex Templeton

25

Court addressed by Mr.Walker. Jno Wrixon sworn & examined by Mr. Walker, cross examined by H. J. H. Clarke. W. Wrixon sworn & examined by Mr. Walker, cross examined by H. J. H. Clarke. Court addressed by Mr. H. J. H. Clarke Q.C. Andrew Strang, sworn, examined by Mr. Clarke. A. G. Bannatyne sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Walker. Court addressed by Mr. H. J. H. Clarke & Mr. D. M. Walker. Verdict for the Defendant. Judgment granted for the Defendant. [D]114 No. 114

Charles Garratt v. Andrew McDermott

General Quarterly Court Records for Manitoba, 1870–72

663

[Case 615] Walker Thibaudeau & Howard H. J. H. Clarke Q.C., Atty. Gen, Plaintiff claims $166.00. 1872 Feb. 3 Feb. 3 “ 15 Feb. 29 May 15

Summons issued. Summons served on Defendant. Appearance & Plea filed. Postponed to the next term. 2 Subpoenas issued by Pltff. for [illegible name] Ellwood & Josiah Adams. 17 Subpoena issued to Pltff. for Edw. Ackland. 18 Postponed to be called again this term in order. Pltff. not ready. 23 Jury Sworn: No. 1 Alexr. Templeton 5. Alfr. Masters 9. Albert Todd 2. Wm. Gowler 6. Jno. Knight 10. John McNab 3. Martin Cooke 7. David Spence 11. John Sutherland 4. Alexr. Taylor 8. John Harper 12. Thos. Slater

June 13

Charles Garratt, sworn, examined by Mr. Walker, cross examined by Mr. H. J. H. Clarke. Josiah Adams, sworn, examined by Mr. Walker, cross examined by Mr. H. J. H. Clarke. Edward Ackland, sworn, examined by Mr. Walker. Charles Garratt re-examined by Mr. H. J. H. Clarke. Andrew McDermott, sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Walker. Adam Klyne, sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Walker. Baptise Oseau, sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Walker. Andrew G. Bannatyne, sworn, examined by Mr. H. J. H. Clarke. Court & Jury addressed by Mr. H. J. H. Clarke Q.C. for the Defendant, and by Mr. Walker for the Prosecution. The learned Judge addressed the Jury. Verdict for the Plaintiff in $25.00. Execution issued for Deft. Costs on original action $52.70 5.00 Atty. fees 1.00 Clerks $58.70

664

Law, Life, and Government at Red River

[D]115 No. 115

Charles Garratt v. A. G. B. Bannatyne [Case 616] Walker, Thibaudeau & Howard H. J. H. Clarke, Q.C.. Atty. Gen. Plaintiff claims $1,000.00. 1872 Feb. 3 Summons issued. Feb. 3 Summons served on Defendant. 15 Appearance and Plea filed. 28 1 Subpoena & 2 copies issued for Pltff. Feb. 29 Postponed to next term Costs to Plaintiff. May 17 Subpoena issued to Pltff. for Jno. Nesbit. 18 Record Withdrawn. Costs to be paid by Plaintiff. [D]116 No. 116

Thomas Spence v. François Gingras [Case 617] John F. Bain H. J. H. Clarke Q.C., Atty. Gen. Plaintiff claims £43.04.00. 1872 Feb. 5 15 29 May 17

Summons issued. Appearance & Plea filed. Postponed to next term. Postponed to next term. [D]117 No. 117

James W. McLaw and William Smith v. George Kellond [Case 618] John F. Bain 1872 Feb. 5 15 29

H. J. H. Clarke Q.C., Atty. Gen. Plaintiff claims $45.00.

Summons issued. Appearance and Plea filed. Settled. [D]118 No. 118

James McKay Sen. v. Alexander Sutherland Jr. [Case 619] H. J. H. Clarke, Q.C., Atty. Gen,

J. F. Bain

General Quarterly Court Records for Manitoba, 1870–72

665

Plaintiff claims $580.00. 1872 Feb. 5 “ 5 “ 14 “ 29 May 6

Summons issued. Summons served on Deft. Plea fyled. Postponed to next term, subject to special application. Subpoena issued by the Pltff. for Alexr. McKenzie, Alexr. McBeath Junr., Robert McBeath Sen., Robert McBeath Junr. & James Murray. May 18 Following Jury sworn: 1. Pierre Paranteau 5. David Charette 9. Martin Cook 2. James Taylor 6. Baptiste Dupuis 10. William Thomas Jr. 3. Josh. Sinclair 7. Charles Nean 11. Jno. Knight 4. André Carrier 8. Jno. Setter 12. Jno. Sutherland James McKay Sen. sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Bain. James Murray sworn, examined by Mr. H. J. H. Clarke. Alexr. McBeath Jr. sworn, examined by Mr. H. J. H. Clarke. Alexr. McKenzie sworn, examined by Mr. H. J. H. Clarke. Rob. McBeath Jr. sworn by Mr. H. J. H. Clarke. Robt. McBeath Sen. sworn, examined by Mr. H. J. H. Clarke. Alexr. Sutherland Jr. sworn, examined by Mr. Bain, cross examined by Mr. Clarke. Donald Sutherland sworn, examined by Mr. Bain, cross examined by Mr. Clarke. Alexr. Sutherland sworn, examined by Mr. Bain, cross examined by Mr. Clarke. John Sutherland sworn, examined by Mr. Bain, cross examined by Mr. Clarke. Robert Gunn sworn, examined by Mr. Bain, cross examined by Mr. Clarke.

25 July 6

The Court addressed by Mr. Bain for the Defence and by H. J. H. Clarke Q.C. for the Plaintiff. Verdict for the Plaintiff for £100.00.00, & interest from the date of the [illegible]. Judgment granted for the Plaintiff. Execution issued: Levy $575.00 Taxed costs 155.85 Interest on 730.85 from 25 May, 1872 5.40

666

Law, Life, and Government at Red River

Attorney’s fees for this writ Clerk’s do.

5.00 3.00 $744.25

[D]119 No. 119

A. G. B. Bannatyne v. Charles Garrett [Case 620] H. J. H. Clarke Q.C., Atty. Gen. Walker Thibaudeau & Howard Plaintiff claims $61.56. 1872 Feb. 5 Summons issued. “ 5 Summons served on Deft. “ 14 Appearance fyled. “ 29 Postponed to next term – subject to special application. May 18 A. G. Bannatyne sworn, examined by Mr. Walker. W. Garratt sworn, examined by Mr. Walker, cross examined by Mr. Clarke, re-examined by Mr. Walker. Andrew Strang sworn, examined by Mr. Clarke, cross examined by Mr. Walker. A. G. Bannatyne, sworn, examined by Mr. Clarke. Verdict for the Pltff. “ 25 Judgment granted for the Pltff. June 13 Execution issued: Debt $61.56 3 Years’ Interest 6 pr. c. 11.07 Costs 33.40 106.03 Int. from Judgt. 5.40 Atty’s fee 5.00 Clerk’s fee 1.50 $112.93 [D]120 No. 120

A. G. B. Bannatyne v. John Schultz MD [Case 621] H. J. H. Clarke Q.C. [for Plaintiff] Plaintiff claims $56.99. 1872 Feb. 5 5 Feb. 29

Summons issued. Summons served on Deft. Settled.

General Quarterly Court Records for Manitoba, 1870–72

[D]121 No. 121

David Taylor v. David Anderson [Case 622] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $58.00. 1872 Feb. 5 “ 12

Summons issued. Summons served. Judgment by Default. [D]122201 No. 122

E. L. Barber v. Louis Vandal [Case 623 ] [D]123 No. 123

Edmund L. Barber v. David Veine [Case 624] J. F. Bain [for Plaintiff] Plaintiff claims £8.0.0. 1872 Feb. 12 “ 29

Summons issued. Settled. [D]124202 No. 124

Alex. McArthur v. Jno. Ormond [Case 625 ] [D]125 No. 125

Brian Devlin v. William Logan [Case 626] Walker Thibaudeau & Howard Plaintiff claims $60.00. 1872 Feb. 13 Feb. 13 Feb 20th March 4th

J. F. Bain

Writ of Replevin issued, Affidavit filed. Writ served on the Defendant. Appearance and Plea fyled by Defendant. Record Withdrawn on payment of Costs.

667

668

May 17

Law, Life, and Government at Red River

Brian Devlin sworn & examined by Mr. Walker, cross examined by Mr. Bain. William Devlin sworn & examined by Mr. Walker. William Logan sworn & examined by Mr. Bain, cross examined by Mr. Walker. Thomas Logan sworn & examined by Mr. Bain, cross examined by Mr. Walker. Alexander Logan sworn & examined by Mr. Bain, cross examined by Mr. Walker. Case dismissed with Verdict for Deft. [D]126 No. 126

E. L. Barber v. Baptiste Morrin the Elder [Case 627] J. F. Bain [for Plaintiff] Plaintiff claims £11.14.09. 1872 Feb. 15 “ 29

Summons issued. Judgment for Plaintiff by Default. [D]127 No. 127

E. L. Barber v. Antoine Le Roque [Case 628] J. F. Bain [for Plaintiff] Plaintiff claims £5.12.05. 1872 Feb. 15 “ 29

Summons issued. Settled. [D]128 No. 128

E. L. Barber v. André Goudrie [Case 629] J. F. Bain [for Plaintiff] Plaintiff claims £7.03.08. 1872 Feb. 15 Feb. 29

Summons issued. Settled.

General Quarterly Court Records for Manitoba, 1870–72

669

[D]129 No. 129

E. L. Barber v. John Klyne [Case 630] J. F. Bain [for Plaintiff] Plaintiff claims £48.12.09. 1872 Feb. 16 “ 29 May 14

Summons issued. Judgment for Plaintiff by Default. Execution issued: Levy for Debt Taxed Costs

$243.18 56.75 $299.93 Interest for 25 [?] Months 3.74 Fee for [illegible] 5.00 $308.67

[D]130 No. 130

E. L. Barber v. Walter Davidson and James Wheeler [Case 631] J. F. Bain [for Plaintiff] Plainiff claims £84.16.00. 1872 Feb. 16 “ 29

Summons issued. Settled. [D]131 No. 131

Robert Mulligan v. Solomon Hamelin [Case 632] (Walker Thibaudeau & Howard) (H.J.H. Clarke Q.C.) Plaintiff claims $5,000.00. 1872 Feb. 17 Feb. 17 “ 27 “ 29 May 17 July 22 1873 January 13 June 9

Summons issued. Summons served on Defendant. Appearance & Plea filed. Postponed to next term – subject to special application. Postponed to next term by mutual consent. Subpoena issued to Pltff. for John Marcellais. Record entered. Record Withdrawn.

670

Law, Life, and Government at Red River

1874 Feby 7 June 9 “ “ 23 July 22 23

Record re-entered. Record entered for trial by Defendant. Record entered for trial by Plaintiff. Trial had. Plaintiff Nonsuited. Taxing Costs & fyling, signed Judgment. Writ Fi. Fa. goods issued. [D]132 No. 132

John Marcellais v. Charles Laronde [Case 633] Walker Thibaudeau & Howard Royal & Dubuc Plaintiff claims £7.00.00. 1872 Feb. 26 March 11 “ 17

Writ issued. Plea fyled for Deft. By consent Postponed to next term. [D]133 No. 133

J. M. House v. D. Shay [Case 607(2)] 203 Walker Thibaudeau & Howard [for Plaintiff] Plaintiff claims $150.00. 1872 Feb. 1 15

Summons issued. Summons served on Deft. See 106 [D]134 No. 134

D. W. Hewett versus Dr. John Schultz [Case 634] Royal and Dubuc [for Plaintiff] 1872 March 2nd

Plaintiff issued a Writ of Capias ad Respondendum to recover $180.00. This case was settled before return of the Writ. [D]135204 No. 135

D. Sinclair v. J. G. Geddes [Case 635]

General Quarterly Court Records for Manitoba, 1870–72

[D]136 No. 136

Herbert Swinford v. John G. Geddes [Case 636] Honr. H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $610.00. 1872 March 18

The Pltff. having made the necessary Affidavit, a Writ of Capius ad Respondendum was issued. [D]137205 No. 137

L. Hayward v. J. Geddes [sic]206 [Case 637] [D]138 No. 138

E. L. Edgerton v. Ryder Larsen [Case 638] 207 Royal & Dubuc [for Plaintiff] Plaintiff claims £598.15.00 Stg. 1872 Apr. 6 6 May 17 17 Sept 9 “ Oct. 19

Writ issued. Summons returned non est inventus.208 Judgment by Default. Exhibits 1, 2, 3, 4, 5, 6 and 7 filed. Fyled Praecipe and issued writ of Fi. Fa. Taxed and fyled Bill of Costs. Issued Certificate of Judgment for Registration. [D]139 No. 139

Andrew McDermot v. J. B. Holmes [Case 639] H. J. H. Clarke Q.C. J. F. Bain Plaintiff claims $354.62. 1872 April 15 18 May 1 23 1873 June 7 12

Writ issued. Writ served on Defendant. Plea filed. Postponed to next term. Record entered for trial. Subpoena for Plaintiff.

671

672

20 July 3 12 14

Law, Life, and Government at Red River

Verdict for Plaintiff, by consent, Exhibit A fyled. Affidivits [re] Mileage and Disbursement fyled. Taxing and fyling Bill [of] Costs. Signing Judgment and fyling Record and Rolls. Issued Writ Fi. Fa. Goods. [D]140 No. 140

François Gingras v. André Gaudry Sr. [Case 640] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $37.67. 1872 April 24 May 6 22

Writ issued. Summons served and Particulars filed. Judgment by Default. [D]141 No. 141

François Gingras v. Alexander Page [Case 641] H. J. H. Clarke, Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $64.77. 1872 April 24 May 22

Writ issued. Judgment by Default. [D]142 No. 142

François Gingras v. Pierre Glodu [Case 642] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $78.17. 1872 April 24 May 22

Writ issued. Judgment by Default. [D]143 No. 143

François Gingras v. Joseph Charette [Case 643] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $43.39.

General Quarterly Court Records for Manitoba, 1870–72

1872 April 24 May 6 22

673

Writ issued. Summons served. Judgment by Default. [D]144 No. 144

François Gingras v. Joseph Ducharme [Case 644] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $53.33. 1872 April 24 May 6

Writ issued. Summons served. Judgment by Default. [D]145 No. 145

Antoine Gingras and François Gingras v. Augustin Lodouceur [Case 645] H. J. H. Clarke Q.C., Atty. Gen. Royal & Dubuc Plaintiff claims $48.78. 1872 April 24 May 6 May 11 22 Oct. 9 1874 Feby. 7 DC210 1874 Feby.

Writ issued. Summons served. Appearance filed. Postponed to next term by mutual consent. Case called. Trial fixed for Friday the 11th inst.209 Record entered for trial. See next page. Verdict by consent for $13.30 for Plaintiff. [D]146 No. 146

Antoine Gingras and François Gingras v. Louis Lacert [Case 646] H. J. H. Clarke Q.C., Atty Gen. Royal & Dubuc Plaintiff claims $137.63. 1872 April 24

Writ issued.

674

Law, Life, and Government at Red River

May 6 May 11 22 Oct. 9 1874 Feby. 7 10

Summons served. Appearance filed. Postponed to next term by mutual consent. Case called. Trial fixed for Friday the 11th inst. Record entered for trial. Trial had. Verdict for Plaintiff for $66.22. Certificate granted for Queen’s Bench Costs. Taxed Costs and signed Judgment.

April 9

[D]147 No. 147

François Gingras v. Joseph Lesperance [Case 647] H. J. H. Clarke Q.C., Atty. Gen. [for Plaintiff] Plaintiff claims $30.00. 1872 April 24 May 6 “ 22

Writ issued. Summons served. Judgment by Default. [D]148 No. 148

George Emmerling vs. John Higgins [Case 648] Royal & Dubuc Walker & Howard Cornish211 & Thibaudeau Plaintiff claims £5.11.00 1872 April 27 29 May 4 10 15 22 1873 March 5 1874 October 9

Writ issued. Summons served. Plea filed. Subpoena issued by Pltff. for Cosgrove & [illegible]. Exhibit No. 1 filed. Postponed to next term. Fyled Consent to Change Defendant’s Attorney. Record entered for trial. [D]149 No. 149

Augustin Grouett v. James Owens Hones [Case 649]

General Quarterly Court Records for Manitoba, 1870–72

675

Royal & Dubuc H. J. H. Clarke Q.C. Plaintiff claims £7.13.00. 1872 April 27 May 1 May 10 7 16 23

Writ issued. Summons served. Subpoenas issued to the Pltff. for Modeste Rochelot, Olivier Ducharme, François Ducharme. Appearance and Plea filed. Subpoenas issued by the Deft. on T. Ryan and J. Ward. Augustin Grouett, sworn, examined by Mr. Royal, cross examined by Mr. H. J. H. Clarke. Modeste Richelieu, sworn, examined by Mr. Royal, cross examined by Mr. H. J. H. Clarke. Amable Ducharme, sworn, examined by Mr. Royal, cross examined by Mr. H. J. H. Clarke. François Ducharme, sworn, examined by Mr. Royal, cross examined by Mr. H. J. H. Clarke. John Ryan, sworn, examined by Mr. Royal H. J. H. Clarke, cross examined by Mr. H. J. H. Clarke [sic]. James W. Ward, sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. H. J. H. Clarke [sic]. James Owens Jr. [?], sworn, examined by Mr. H. J. H. Clarke, cross examined by Mr. Royal. Judgment: Case Dismissed each party to pay his own Costs. [D]150212 No. 150

Wilson & Hyman v. Geo. Klyne [Case 650] [D]151 No. 151

E. L. Barber v. Joseph Huppe Sen. [Case 651] J. F. Bain [for Plaintiff] Plantiff claims £5.16.02. 1872 April 29

Writ issued. No Return. [D]152213 No. 152

H. McKenny v. Thomas Spence

676

Law, Life, and Government at Red River

[Case 652 ] [D]153 No. 153

William G. Fonseca v. William Logan [Case 653] Walker & Howard H. J. H. Clarke Q.C. Plaintiff claims $1,000.00. 1872 April 30 May 2 May 9 15

Writ issued. Summons served. Appearance and Plea filed. Three Subpoenas issued by Pltff. for A. G. Bannatyne , J .H. Barton. Postponed to next term.

22

[D]154 No. 154

John McKenny v. Benjamin Monchamp [Case 654] Walker & Howard H. J. H. Clarke Q.C. Plaintiff claims $200.00. 1872 April 30 May 6 May 13 17 1873 January 28

Writ issued. Summons served. Appearance & Plea filed. Postponed to next term. Fyled (Order) Summons [?] [D]155 No. 155

William Cosgrove v. John J. Bain, A. G. Bannatyne and Robert Cunningham [Case 655] Walker & Howard J. F. Bain Plaintiff claims $2,000.00. 1872 April 30 May 1 14 May 15 16

Writ issued. Summons served. Plea filed. Subpoena served for W. R. [illegible] do. by Deft. for A. M. Brown.

General Quarterly Court Records for Manitoba, 1870–72

22 1873 January 13 June 9

677

Record Withdrawn by the Counsel for the Plaintiff. Record Entered. Record Withdrawn. [D]156 No. 156

Donald McLeod v. Charles Donald [Case 656] John F. Bain H. J. H. Clarke Plaintiff claims $37.00. 1872 May 1 6 7 17

Writ issued. Summons served. Judgment by Default. Appearance & Plea filed. Notes filed. Judgment Withdrawn by Pltff. Postponed to next term.

22

[D]157 No. 157

Andrew McDermot v. John Thomas Senr. [Case 657] Royal & Dubuc Walker & Howard Plaintiff claims £33.10.00. 1872 May 3 3 15 17

[May] 25th 1873 March 12

Writ issued. Summons served. Plea filed. Jury empanelled & sworn as follows: 1. Jno. Sutherland 5. Edw. Pruden 9. Thos. Slater 2. Jno. Badger 6. Jno. Setter 10. Alfd. Masters 3. Jno. Knight 7. Wm. Work 11. Martin Cook 4. Wm. Thomas Jr. 8. Albert Todd 12. Thos. Kepling Jno. Thomas sworn, & examined by Mr. Dubuc & [cross examined by] Mr.Walker. Case Dismissed: Verdict for Defendant. Judgment granted for Deft. Taxed Bill of Costs between Plaintiff & Attorney.

678

Law, Life, and Government at Red River

[D]158 No. 158

Alexr. McArthur v. Charles Garratt [Case 658] J. F. Bain [for Plaintiff] Plaintiff claims $150.00. 1872 May 4 4 17

Writ issued. Summons served. Judgment by Default. [D]159 No. 159

Honoré Pariseau v. John Marcellais [Case 659] H. J. H. Clarke Q.C., Atty. Gen. Plaintiff claims £60.03.00. 1872 May 4 4

Writ issued. Writ served on Deft. Judgment by Default. [D]160 No. 160

George Miller & Garner Ellwood v. Alexander M. Brown [Case 660] J. F. Bain Walker & Howard Plaintiff claims $184.93. 1872 May 6 6 15 22

Writ issued. Summons served. Plea filed. Record Withdrawn, Costs Reserved. [D]161 No. 161

Joseph A. R. McDermott v. J. G. Sanderman [Case 661] Royal & Dubuc Walker & Howard Plaintiff claims £16.04.00 Stg. 1872 May 6

Writ issued.

General Quarterly Court Records for Manitoba, 1870–72

6 15 22

679

Summons served. Plea filed with Particulars. Postponed to next term. Case Settled out of court. [D]162 No. 162

Jean Baptiste Ducharme v. Alexander Murray [Case 662] H. J. H. Clarke Q.C. J. F. Bain Plaintiff claims $400.00. 1872 May 6 6 14 15 23

Writ issued. Summons served. Plea filed. Subpoena issued to the Def. for John Smith, Patrick Smith, Jas. Royland. Postponed to next term. [D]163 No. 163

Andrew McDermott v. Alexr. Dhall [Case 663] H. J. H. Clarke Q.C. Walker & Howard Plaintiff claims £75.12.06. 1872 May 6 11 23 25 June 3 1873 June 7 12 26 July 4 12 14

Writ issued. Summons served. Appearance filed. Court ordered Plea to be filed by 3 June. Plea filed. Record entered for Trial. Subpoena for Plaintiff. Trial had, Exhibit A fyled Verdict for Plaintiff. Taxing and fyling Bill [of] Costs. Fyling Record & Roll and Signing Judgment. Issued Writ Fi. Fa. Goods. [D]164 No. 164

Frank J. Clarke v. John H. Donnell

680

Law, Life, and Government at Red River

[Case 664] 214 H. J. H. Clarke Q.C. Walker & Howard Plaintiff claims $131.70 with Interest – Promissory Note. 1872 May 6 15 25th June 3 6

Writ issued. Summons served & returned & Note fyled. Judgment by Default. Plea fyled. Writ of Execution issued: Levy for Debt $131.70 Interest on above at 6 [?] per cent from 8th Feb. to 25 May 2.30 Interest on 134.00 at 6 per cent .30 Taxed costs 36.10 170.40 Fee for this Writ 5.00 Clerk’s Fee 2.00 $177.40 Execution returned by Sheriff.

“ 8

[D]165 No. 165

Andrew McDermott v. Fredr. C. Mercer [Case 665] 215 H. J. H. Clarke Q.C.Walker & Howard Plaintiff claims Recession of Lease. 1872 May 30 30 31 June 1

1873 March 19 26 28 April 15 May 1

Writ issued. Appearance filed. Plea filed at 11 o’clock A.M. Granted a Certificate of Foreclosure of Pltff’s right to [illegible]. Plea of Deft. at 1 o’clock P.M. Returned Writ. Entered Record for Trial. Case called. Enlarged to 15th of April next, Defendant to pay Costs of the Da y. Issued Rule of Court. Fyled Affidavit of Disbursements, and Taxed & fyled Bill of Costs of the day. (Costs taxed by Judge Betournay.) Enlarged by consent till May 1st 1873. Case called. Fyled Affidavit of R.T. Huggard. Enlarged till Monday the 5th inst., on condition that Defendant pay Costs of day to Pltff. Issued Rule of Court.

General Quarterly Court Records for Manitoba, 1870–72

3 5

681

Bill Costs of day fyled. Case tried and closed. Fyled Exhibit A and Notice to Produce. Judgment Reserved. Judgment Dismissing Action with Costs.

9

[D]166 No. 166

Alexander McArthur and John Martin v. W. G. Fonseca [Case 666] John F. Bain Walker & Howard Plaintiff claims $150.00. 1872 May 7 15 1873 Jany. 7 13

Writ issued. Plea filed. Writ Returned & fyled. Record Entered. [D]167 No. 167

T. L. Gray v. The Manitoba Brewery Company [Case 667] 216 Walker & Howard [for Plaintiff] Plaintiff claims $95.00. 1872 June 4

Writ of Summons issued. [D]168 No. 168

Joseph Rémon v. Clovis Gueriere and Louis Valliere [Case 668] 217 Royal & Dubuc [for Plaintiff] Plaintiff claims $210.00. 1872 Jan. 4 5

The Pltff. having made the necessary Affidavit. A writ and two copies of a [Writ of] Capias ad respondendum was issued. [D]169 No. 169

Louis Lacerte v. James White [Case 669] 218 Royal & Dubuc [for Plaintiff] Plaintiff claims $40.00.

682

1872 June 15

Law, Life, and Government at Red River

Writ issued. [D]170219 No. 170

A. McDermot v. W. C. Cowan [Case 670] [D]171 No. 171

Robert Tait v. Antoine Glodu [Case 671] 220 Royal & Dubuc [for Plaintiff] Plaintiff claims $46.10. 1872 June 19

The necessary Affidavit being made and sworn to a Writ of Attachment, [the Writ] was granted. [D]172 No. 172

Andrew G. B. Bannatyne v. Jean Baptise La Fournais [Case 672 ]221 H. J. H. Clarke Q.C. [for Plaintiff] Plaintiff claims $132.75. 1872 June 21

The necessary Affidavit was made and a Writ of Capias ad Respondendum: issued. [D]173 No. 173

Henry Nartenyest v. Jacob Norey [Case 673] 222 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $50.00. 1872 June 24

The necessary Affidavit filed, a Writ of Replevin issued. [D]174 No. 174

Edmondson Sims v. Benjamin Jones [Case 674] 223 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $60.00.

General Quarterly Court Records for Manitoba, 1870–72

1872 June 27

683

Affidavit filed. Writ of Capias ad Respondendum issued. [D]175 No. 175

Edmondson Sims v. Benjamin Jones [Case 675] 224 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $86.75. 1872 June 28

Affidavit filed, Writ of Attachment granted. [D]176 No. 176

Moise Ouelette v. Thomas S. Gray [Case 676] 225 H. J. H. Clarke Q.C Walker & Howard Plaintiff claims $741.75. 1872 June 29 July 11 Sep 10 24

27 1873 June 9 12 July 5 Novr. 8 1874 Feby. 7 20 28 March 16 16

Affidavit filed, Writ of Capias ad Respondendum issued. Bail Piece filed.226 Affidavits and Notice of Motion to set aside Capias, with copy of the latter, fyled. Fyled Certified copy of Summons to shew cause. Case argued on 13th. Judgment on the 24th: that Writ to be set aside as regards the Arrest, but stand as a Writ of Summons, that Bailbond be given up to Defendant’s Attorney, and that Defendant enter a common Appearance, costs of interlocutory proceedings to be paid by Plaintiff and taxed by the Court.227 Appearance fyled by Defdt’s Atty. Record Entered for Trial. Subpoened for Plaintiff. Fyled Order to Examine Plaintiff, and Return of same.228 Record Re-entered for Trial. Record Re-entered for Trial. Verdict by consent for Plaintiff, subject to award of Referee.229 Award by Daniel Carey, Referee, fyled. Rule granted. Fyled Order of Reference, Rule of Court, Brief, Affidavits &c. Signed Judgment, and Taxed Bill of Costs.

684

July 3

Law, Life, and Government at Red River

Revised Taxation by Judges’ Order. Taxed Costs for setting aside Ca. Re. [D]177 No. 177

Charles Garratt v. William Diamond [Case 677] 230 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $40.70. 1872 July 6 8

Affidavit filed. Writ of Capias ad Respondendum issued. [D]178 No. 178

Alfred Boyd v. James Settee Junr. [Case 678] 231 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $167.00. 1872 July 18 31

Writ issued. Exhibit filed. Return Default. Execution issued:

$167.00 Debt 34.00 Costs 5.00 Fee for Writ Attorney 2.00 do. Clerk $208.00 [D]179 No. 179

John Gilbraith v. George Bates [Case 679] 232 W. B. Thibaudeau [for Plaintiff] Plaintiff claims $5,000.00. 1872 July 19

Affidavit sworn to and filed, Writ of Capias ad Respondendum issued. [D]180 No. 180

R. Duncan & J. C. Stuart v. James Stewart & John H. O’Donnell

General Quarterly Court Records for Manitoba, 1870–72

685

[Case 680] 233 J. F. Bain 1872 July 25th Aug. 6 1873 Jany. 7 13

Cornish & Thibaudeau Plaintiff claims $73.55. Writ issued. Plea filed. Writ Returned & fyled. Record Entered. [D]181 No. 181

Dr. J. Schultz v. M. Meeham [Case 681] 234 J. F. Bain [for Plaintiff] Plaintiff claims $131.85. 1872 July 27

Affidavit sworn to & fyled, Writ of Capias ad Respondendum issued. [D]182 No. 182

R. A. Davis v. G. B. Spencer [Case 682] 235 W. B. Thibaudeau [for Plaintiff] Claims $700.00. 1872 July 29 Aug. 24 “ “ “ 31 Septr. 12

Oct. 1

7

Affidavit sworn to & fyled, Writ of Replevin issued. Fyled Notice of Motion for Rule Nisi. “ Notice de novo of do. “ Motion and Affidavit to obtain Rule Nisi. Issued Rule Nisi, to be heard on 12th Sept. 1872, at 11 a.m. Fyled, Return of Rule Nisi. Hearing argument Enlarged to 17th Septr. Tuesday next. 17 “ “ “ 24th “, at 11 o’c by consent. 24 Case argued. Fyled Plaintiff’s Affidavit. Judgment discharging Rule Nisi, without Costs, with delay of eight days to Defendant, within which to take the next step or such other proceedings, by way of Summons or Rule as he may be advised, and with Stay meanwhile of other proceedings in the cause. Fyled Copy of Writ, Notice for Summons, Motion and Affidavit.

686

Law, Life, and Government at Red River

18 Novr. 18 Decr. 26

Fyled Summons to Shew Cause. Fyled Affidavit of R. A. Davis. Taxed Bill Costs between Defendant’s Attorney and Client. [D]183 No. 183

Andrew McDermott Senr. v. William Nimmons [Case 683] 236 F. E. Cornish [for Plaintiff] Plaintiff claims $180.00. 1872 July 31 Octbr. 7 1873 March 3

Affidavit sworn to & filed, Writ of Replevin issued. Signed Interlocutory Judgment for Default. Fyled Affidavit. Returned Writ Replevin. [D]184 No. 184

Rodger Marion v. Wm. Farmer [Case 684] 237 F. E. Cornish [for Plaintiff] Plaintiff claims 145.00. 1872 July 31

Writ issued. [D]185 No. 185

Henry McKenney v. Benjamin Mayo [Case 685] 238 Cornish & Thibaudeau [for Plaintiff] Plaintiff claims $1,085.40. 1872 Aug. 6

Affidavit sworn to & filed, Writ of Capias ad Respondendum issued. Commentary

The foregoing case appears to be the final one commenced under the authority of the General Quarterly Court of Manitoba. Although volume D of the court records contains additional case records, the next one is headed “Court of Queen’s Bench.” Between the record of the last Quarterly Court case and that of the first Queen’s Bench case is the following list of case documents transferred from the former to the latter to ensure a seamless transition.

General Quarterly Court Records for Manitoba, 1870–72

687

[D]186

Statement of Papers 239 Filed of Record in the General Quarterly Court Transferred to the Prothonontary 240 of the Court of Queen’s Bench No.

Pltff. & Deft.

Records

Old Book

Wm. Bunn & Jas Bird

Memorandum of Judgment D.C.241

1.

J. Higgins v. Rob. Tait “ “ “

Writ of Summons D.C. Declaration D.C. Particulars D.C. Appearance & Demand of Detailed Account D.C.

2.

John McTavish v. Desgeorges

Writ of Capias ad Respondendum D.C. Affidavit for Writ of Capias D.C.

3.

John McTavish v. W. J. Walker

Affidavit for Writ of Capias D.C.

4.

Andrew McDermott v. Writ of Capias ad Respondendum D.C. J. B. Holmes Affidavit for Writ of Capias D.C.

5.

Andrew McDermott v. Writ of Attachment D.C. Holmes “ Affidavit for Writ of Attachment D.C.

6.

Metzger v. Fonseca “ “

Writ of Summons D.C. Declaration D.C. Plea D.C.

7.

John McTavish v. Little Beaver

Writ of Capias ad Respondendum D.C. Affidavit for writ of Capias D.C.

8.

Hudson’s Bay Co v. Smith & McLean “ “

Bond Writ of Replevin Affidavit for Writ of Replevin Appearance

9.

John Schultz v. Hill Griggs & Co “

Bond & Copy Writ of Replevin Affidavit for Writ of Replevin & Copy

688

Law, Life, and Government at Red River

10.

McKenney v. Holmes “ “ “ “

Writ of Summons Declaration Plea & Appearances Affidavit of service Promissory242 Note

11.

Hyde v. Tait “ “ “ “ “

Writ of Summons Declaration Appearance Plea Affidavit of Service Subpoena for Cameron & Stevenson

No.

Pltff. & Deft.

12.

A. M. McDermott v. A. Dhall “ “

Writ & Declaration Copy of Writ & Declaration [illegible] Demurrer & Plea Bond of A. Dhall

13.

F. Vandal v. J. Schultz “ “

Writ & Declaration Plea Appearance

14.

J. B. Lapointe v. G.. St Luc “ “ “

Writ & Declaration Exhibit “B” Mem. of Exhibit “A” withdrawn by M. Dubuc Appearance & Notice of Title Motion for Judgment

15.

P. Laverdure v. J. Baldwin

Writ & Declaration Appearance & Notice

16

Hudson Bay Co. v. W. Slater “

Writ & Declaration [illegible word] for Execution Note of Demand

17.

Marion v. O’Donnell “

Writ of Summons & Declaration Appearance Demurer & Plea

[D]187 Records

General Quarterly Court Records for Manitoba, 1870–72

689

18.

J. Higgins v. G McKay

Writ of Summons & Declaration

19.

McKenney v. Settee “

Writ of Summons & Declaration Particulars of Pltff’s claim

20.

Sonderman. v. L. de Plainval “

Writ of Summons & Declaration Appearance & Demand of Detailed Account Particulars of Pltff’s Claim

21.

V. Courtelle v. C. Lacerte “ “ “

Exhibit No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 Subpoena Appearance Plea

22.

Marion v. O’Donnell “ “ “

Summons & Declaration Appearance & Plea Receipt on % from D. M. Walker Promissory Note

23.

Schultz v. Spence “ “

Summons & Declaration Motion for Judgment Appearance and Demand for detailed % by Pltff

24.

Cousins v. O’Donnell “

Summons & Declaration Appearance Plea & Demand

No.

Pltff. & Deft.

25.

Bannatyne & Begg v. C. [sic] Begg

Summons and Declaration £50.09.06 Summons and Declaration £8.10.07

26.

E. Anderson v. P. Pruden “

Summons & Declaration Plea Mem. of Execution

27.

McDermott v. C. Garratt “

Plaintiff’s Exhibit: Lease Bill of Costs Plea

[D]188 Record

690

Law, Life, and Government at Red River

“

Attorney’s Receipt for £37.00.00

28.

A. McDermott v. C. Garratt “

Summons and Detailed Account Plea Bill of Costs

29.

A. Murray v. R. Bellefeulle

Summons & Detailed Account Plea

30.

P. Morwick v. A. McDonald “

Summons & declaration Plea [illegible] Subpoena

31.

J. F. Grant v. W. Brymner “ “

Summons & Declaration Plea Appearance Mem. Execution

32.

L. Hayward v. Hill Griggs & Co. “

Writ & Declaration Plea Appearance

33.

Crowson v. Adshead “

Summons & Declaration Promissory Note

34.

Gerold v. Nolin [ Nolan]

Summons & Declaration

35.

Comber v. Tait “

Summons & Declaration Plea

36.

McKenzie v. Tait

Summons & Declaration

37.

Brown v. Sinclair et al. “ “ “

Summons & Declaration Particulars of Plaintiff’s claim Appearance Plea

38.

Brown v. Davidson et al. “ “ “

Summons & Declaration Particulars of Plaintiffs claim Appearance Plea Particulars of Defendant’s Set Off

General Quarterly Court Records for Manitoba, 1870–72

[D]189 Record

No.

Pltff. & Deft.

39.

Lynch v. Hill et al “ “ “

Writ & Declaration Plea Appearance Notice243

40.

Emerling v. Barber “

Summons & Declaration Plea

41.

A. McDermot v. K. McBain

Summons & Declaration

F. Lusted v. W. Dease

Summons & Declaration

44.

McKenney v. Ormand “

Summons & Declaration Note sued on

45.

Frasier v. Hill et al. “ “ “ “

Summons & Declaration Plea Appearance Notice Three Exhibits of Particulars

48.

Hussey v. Manitoba Brewery Co.

Summons & Declaration Plea

49.

Cadman v. Manitoba Brewery Co. “ “ “

Summons & Declaration Execution Fi. Fa. Bill Affidavit Plea

50.

Cosgrove v. Bannatyne et al. Summons & Declaration

51.

Edgerton v. J.M. House Summons & Declaration “ Plea “ Appearance

42. [43.]244

691

692

Law, Life, and Government at Red River

52.

Mercer v. Dease “ “

Summons & Declaration Plea Exhibit A

54.

Robinson v. Taylor “ “

Summons & Declaration Bill Particulars of Pltff’s claims

55.

Robinson v. J. Klyne “ “ “ “

Summons & Declaration Plea Particulars of Deft. set off Constable’s Affidavit Particulars of Pltff’s claim

56.

Robinson v. J. Klyne

Summons & Declaration, Particulars and Constable’s Affidavit Plea Receipt for $10.00 from J. B. Thibaudeau

“ “

[D]190 Record

No.

Pltff. & Deft.

57.

Hill et al. v. Schultz “ “

Summons & Declaration Bill of Costs Promissory Note

58.

McDonald v Peebles “

Summons & Declaration Appearance & Plea

61.

Drever v. Lagemonière Summons & Declaration “ Plea

62.

Schultz v. Meeham “ “

Summons & Declaration Particulars of Claim Affidavit of Service

67.

Taylor v. Lussier “

Summons & Declaration Affidavit of Service

68.

Taylor v. Dejerlay “

Summons & Declaration Plea

General Quarterly Court Records for Manitoba, 1870–72

70.

McArthur v Davidson

Appearance

71.

Tait v. Lavallée “ “

Summons & Declaration Particulars Affidavit of Service

74.

Fonseca v. Nolin “

Summons & Declaration Affidavit of Service

75.

Cosgrove v. Bannatyne “ “ “

Summons & Declaration Bill of Costs Plea Affidavit of Service

76.

Lennon v. Bannatyne

Bill of Costs

77.

Anderson v. Stevenson “ “ “

Summons & Declaration Bill of Costs Plea Affidavit of Service

78.

Chisholm & Bubar v. Bedman

Bill of Costs

81.

Tait v. Hastie

Appearance

86.

House v. Sear “ “

Summons & Declaration Affidavit of Service Promissory Note

87.

House v. Lucier “

Summons & Declaration Affidavit of Service

89.

House v. Fayant “ “

Summons & Declaration Plea Affidavit of Service

No.

Pltff. & Deft.

94.

Sinclair v. Meehan “ “

[D]191 Record Summons & Declaration Particulars of Pltff. claim Affidavit of Service

693

694

Law, Life, and Government at Red River

95.

House v. Lucier “

Summons & Declaration Plea

96.

J. Inkster v. H. Coutu “ “ “ “

Summons & Declaration Particulars of Pltff’s claim Pr.245 for Fi. Fa. Fi. Fa. Memorial of Judgment to be registered (not signed)

97.

Garratt v. Diamond “ “ “

Summons & Declaration Plea Particulars of Deft. Set Off Particulars of Pltff. Claim and Affidavit of Service

100.

Schultz v. Ducharme “ “

Summons & Declaration Particulars of Pltff’s claim Affidavit of Service

102.

House et al v. Faynant “

Summons & Declaration Promissory Note

103.

House v. Desjarlais “ “ “

Bill of Costs Writ & Declaration Plea Promissory Note

104.

House v. Chatras “

Summons & Declaration Plea

105.

House v. Chatras “ “ “ “ “ “

Summons & Declaration Defendant’s Statement of Accounts Bill of Costs Bill of Costs March Term Prices of Furs List of Furs Letter from J. M. House to Messrs. Chartrand dated Dec. 22/67 Account dated September 23rd 1867 Account dated June 2nd 1869

“ “

General Quarterly Court Records for Manitoba, 1870–72

“

695

A True Copy of Goods Taken Back from P. Chatras by J. M. House June 30th 1869 Receipt from P. Chartrand dated June 3 1868 P. Chatras Account with J. M. House from July 13 1868 to June 1st 1869 P. Chatras Account September 23rd 1868 P. Chatras Account February 4th 1868 Notice from J. M. House to P. Chatras to pay Oct 28th 1870

“ “ “ “ “

[D]192 Record

No.

Pltff. & Deftd.

106.

J. M. House v. D. Shay “ “

Bill of Costs Promissory Note Constable’s Affidavit & Notice to Pltff’s Attorney

108.

Hastie v. Tait “

Summons & Declaration Appearance & Plea

110.

Schultz v. Matheson

Summons & Declaration

114.

Garratt v. McDermott “ “ “

Summons & Declaration Appearance & Plea Receipt from C. Garratt to A. M. McDermott Bill of Costs

116.

Spence v. Gingras

Appearance & Plea

118.

J. McKay v. A. Sutherland “

Bill of Costs Original Subpoena (two) Plea

119.

A. G. Bannatyne v. C. Garratt Summons & Declaration “ Bill of Costs “ Appearance “ Plea

696

Law, Life, and Government at Red River

“

Two Accounts

A. G. Bannatyne v. J. Schultz

Summons & Declaration

D. Taylor v. D. Anderson

Summons & Declaration

125.

Devlin v. Logan “ “ “

Writ of Replevin & Declaration Affidavit for Writ Affidavit of Service Plea

126.

Barber v. Morrin

Summons & Declaration

129.

Barber v. J. Klyne “ “

Summons & Declaration Affidavit of Service Bill of Costs

131.

Mulligan v. Hamelin “

Summons & Declaration Appearance & Plea

132.

Marcellais v. Laronde “

Summons & Declaration Plea

135.

D. Sinclair v. J. Geddis Affidavit

136.

H. Swinford v. J. Geddis Affidavit

137.

Hayward v. Thibaudeau “ “

No.

Pltff. & Deftd.

138.

Larsen v. Edgerton246

120.

121.

139.

Summons & Particulars of Pltff’s claim Plea Affidavit of Service [D]193 Record

“

Mortgage, Exhibit No. 1, 2, 3, 4, 5, 6, 7 Summons & Declaration

A. M. McDermot v. J. B. Holmes

Summons & Declaration. Plea. Affidavit of Service

General Quarterly Court Records for Manitoba, 1870–72

697

140.

Gingras v. Gaudry

Summons & Particulars & Declaration

143.

Gingras v. Charette

Summons & Declaration

144.

Gingras v. Ducharme

Summons & Declaration

145.

Gingras v. Ladouceur

Summons & Declaration

146.

Gingras v. Lacerte “

Summons & Declaration Plea

147.

Gingras v. Lesperance Summons & Declaration

148.

Emmerling v Higgins “ “

Summons & Declaration Plea Exhibit No. 1

149.

Grouett v. Jas. Hones “

Summons & Declaration Particulars of Claim

150.

Wilson v. Klyne “ “

Summons & Declaration Bill of Costs Affidavit of Service

152.

McKenny v. Spence “ “ “

Summons & Declaration Particulars of Pltff’s Claim Affidavit of Service Promissory Note

153.

W. G. Fonseca v. W. Logan “

Summons & Declaration Appearance & Plea Affidavit of Service

154.

McKenny v. Monchamp “

Summons & Declaration Appearance & Plea Affidavit of Service

155.

Cosgrove v. Bain et al. “ “

Summons & Declaration Plea Affidavit of Service

156.

McLeod v. Donald “

Summons & Declaration Affidavit of Service

698

Law, Life, and Government at Red River

“ “

Appearance & Plea Two Promissory Notes

157.

A. McDermott v. J. Thomas “

Summons & Declaration Plea Affidavit of Service

No.

Pltff. & Deftd.

158.

McArthur v. C. Garratt Summons & Declaration “ Affidavit of Service

159.

H. Pariseau v. J. Marcelais

Summons & Declaration

160.

Miller et al. v. Brown “ “

Summons & Declaration Plea Affidavit of Service

161.

J. McDermot v J. G. Sanderman “ “

Summons & Declaration Plea Particulars of Claim Affidavit of Service

162.

J. B. Ducharme v. A. Murray

Summons & Declaration Plea

163.

A. M. McDermot v. A. Dhall “

Summons & Declaration Appearance Plea

164.

F. J. Clarke v J. H. O’Donnell “

Summons & Declaration Fi. Fa. Promissory Note

165.

McDermott v. Mercer “

Plea Appearance

166.

A. McArthur v W. G. Fonseca

Plea

[D]194 Record

General Quarterly Court Records for Manitoba, 1870–72

699

168.

J. Rénon v. C. Guerière et al. Affidavit for capias

169.

A. McDermot v. W. C. Cowan247

Affidavit for capias

171.

R. Tait v. A. Glodu

Affidavit for Writ of Attachment

172.

A. G. Bannatyne v. J. B. La Fournais

Affidavit for capias

175.248

Simms v. Jones

Affidavit for Attachment

174.

Simms v. Jones

Affidavit for capias

173.

Nayenyest v. Norey

Affidavit for Attachment

176.

Ouelette v. Gray “

Affidavit for capias Bail Piece

177.

Garratt v. Diamond

Affidavit for capias

178.

Boyd v. Settee “ “ “

Summons & Declaration Affidavit of Service Bill of Costs Exhibit: Acknowldgment of A. Boyd holding Dishonoured Bill

179.

Gilbraith v. G. Bates

Affidavit for capias

180.

Stewart v. Duncan et al Plea

181.

Schultz v. Meeham

Affidavit for capias

182.

R. A Davis v. G. B. Spence

Affidavit for Writ of Replevin

No.

Pltff. & Deft.

183.

McDermott v. Nimmons

[D]195 Record

Affidavit for Attachment

700

185.

Law, Life, and Government at Red River

McKenney v. Mayo

Affidavit to Hold to Bail

Records Loose in the Box: J. F. Lynch v. Hill et al. Deposition of Henry C. Carlisle, G. H. Spencer, with Order Affidavit and [illegible]249

Glossary

accounting (demand or action for): a request for a court order requiring that one party open his or her books or records to scrutiny by or on behalf of the other. affidavit: a written statement, made under oath or solemn affirmation, attesting to certain facts. It is sometimes called a written deposition (qv). anglophone: one whose first language, or usual mode of expression, is English. In Canada the term is most commonly used in contradistinction to francophone (qv). appearance: a formally acknowledged presence in court by a party to litigation or by a party’s counsel or representative, even if only for the purpose of seeking an adjournment. ardent spirits: distilled liquor (whiskey, rum, brandy, etc.). Although the sale of beer and wine was prohibited only to Indians in Assiniboia, the sale of whiskey and other “ardent spirits,” without a licence, was absolutely prohibited in some areas at some times. arraignment: an appearance (qv) of an accused person before a criminal court to plead guilty or not guilty to charges in an indictment (qv). assault and battery: Strictly speaking, assault and battery are distinct wrongs. Whereas battery involves the application of physical force to the person of another without that person’s express or implied consent, assault is an unconsented act, such as raising a fist or pointing a gun in a menacing manner, that creates a reasonable apprehension in the mind of that person that a battery is about to be inflicted. The term “assault” is often used alone, especially in the criminal context, to express either or both the above meanings. Assiniboia, Council of: the body of men appointed by the Governor and Committee of the Hudson’s Bay Company (qv) from time to time under the authority of the company’s 1670 charter to govern the District of Assiniboia (qv) in collaboration with the governor of Assiniboia (qv). Assiniboia, District of: that portion of Rupert’s Land (qv), centred on the Forks of the Red and Assiniboine Rivers, that was conveyed to the Earl of Selkirk

702

Glossary

by the Hudson’s Bay Company in 1811 and was reconveyed to the company by Selkirk’s estate after his death. A smaller area, extending 50 miles in all directions from the Forks and known as the Municipal District of Assiniboia, was created by the Council of Assiniboia (qv) on 25 June 1841. The settled portions of Assiniboia, comprising an area somewhat more far-flung and less regular in shape than the Municipal District, were commonly known, compendiously, as the Red River Settlement. Assiniboia, governor of: the man appointed by the Governor and Committee of the Hudson’s Bay Company (qv) from time to time under the authority of the company’s 1670 charter to govern Assiniboia (qv) in collaboration with the Council of Assiniboia (qv). assize: court session. The General Quarterly Court of Assiniboia normally held four assizes each year. assoilized: dismissed or absolved. It is a Scots law term, taken from “assoile” in French law, that was introduced to Assiniboia by Recorder Adam Thom to indicate the dismissal of a civil lawsuit. attachment: a court order (writ) to seize property of the defendant in satisfaction of a judgment or anticipated judgment in the plaintiff’s favour. It was also referred to as “execution” and “fieri facias” (qv). If directed against land, the term “de terris” (qv) was added; if directed against personal property (goods), the added term was “de bonis” (qv). If no goods were recovered by the sheriff, the writ was returned to the court marked “nulla bona” (qv). See, for example, case 529, vol. 2, 630–1 (post-1870). barrister: a lawyer who represents parties as advocate in court proceedings, civil or criminal, and related matters. Barristers are often distinguished from solicitors, the latter being lawyers whose practice involves such noncurial matters as drafting legal documents, advising on legal problems, as well as preparation for litigation, and sometimes acting as advocates in lower-level courts and tribunals. In England the legal profession is formally divided into those two subprofessions; but in Canada, although the distinction is often observed in practice, most lawyers are officially entitled to practice as either, or as both, barristers and solicitors (post-1870). battery: See “assault and battery.” bill of costs: a list of litigation expenses for which one party, usually the successful one, claims reimbursement by the other. Before payment, the bill of costs is normally subjected to taxation (item-by-item scrutiny and approval or rejection) by an officer of the court (post-1870). bill of exchange: an unconditional order in writing addressed by one person to another, signed by the drawer (signator), that requires the addressee to pay on demand, or at a fixed or determinable future time, a sum certain in money either to or to the order of a specified person or to the bearer of the document. Cheques (qv) and promissory notes (qv) are special forms of bills of exchange. All bills of exchange are “negotiable instruments” and, as such, are transferable

Glossary

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(“negotiable”) to any innocent transferee for value (called a “holder in due course”) (qv). bob: slang for shilling. See “pound (sterling).” bowsman: the crew member of a York boat (qv) stationed in the bow to watch for, signal, and fend off approaching hazards. He was the second most senior member of the crew, after the steersman (qv). brindled: a term describing the appearance of an animal with indistinct dark markings on a tan or grey hide. bung: a stopper or plug in a cask or the hole into which the stopper or plug was inserted. byre: cattle barn. Canada, Canadian: These terms had bewilderingly numerous meanings over the years. Before 1840 there were two distinct British North American colonies called Canada: Upper Canada (now Ontario) and Lower Canada (now Quebec). In 1840 those colonies were united as the single colony of Canada by the UK Act of Union. Although that new united Canada had a unified legislature and executive government, it was divided for administrative and political purposes into Canada West (Ontario) and Canada East (Quebec), which divisions tended to retain, in common parlance, the old names of Upper and Lower Canada. In 1867 the UK British North America Act welded the united Canadas and the two maritime colonies of Nova Scotia and New Brunswick into a federation called Canada (or the Dominion of Canada). Those were the various formal uses of “Canada” and “Canadian.” “Canadian” also acquired a number of informal meanings. Since the North West Company was based in Montreal and the Hudson’s Bay Company head office was in London, “Canadian” often referred, in the early years, to any NWC officer or employee. Because very few people came to Rupert’s Land from Upper Canada in those years, the term was also used to designate anyone from Lower Canada, particularly a francophone (qv), who did not have Aboriginal blood. In later years, however, growing numbers of immigrants came to Red River from Upper Canada (later Canada West and Ontario), and the expressions “Canadian” and “Canadian Party” shifted to that group. capias ad respondendum (writ of): a court order that the defendant be arrested to ensure his or her appearance in court to answer the plaintiff’s claim. capot (or capote): a loose, rough coat, often hooded, usually worn by men. cariole: a light passenger sled or carriage drawn by horse or dogs. chain: a measurement of length. A surveyor’s chain, consisting of 100 links, is 66 feet in length. See also “link.” challenge (jury): See “jury challenges.” charter: Unless the context indicates otherwise, the term “charter” refers herein to the royal charter of 2 May 1670 by which King Charles II of England granted the “Company of Adventurers of England trading into Hudson’s Bay” (Hudson’s Bay Company) ownership of, governmental authority over, and a (dubiously legal)

704

Glossary

trading monopoly within the vast expanse of north-central North America drained by Hudson Bay. cheque: a bill of exchange (qv) drawn on a bank and payable on demand. civil law: The term “civil law” has several meanings. Walker (1980) lists ten. The most common meanings in the context of this study are (1) that portion of the law that does not relate to criminal conduct; (2) law applicable to civilians, as opposed to that which applies exclusively to military personnel; (3) law administered by courts other than ecclesiastical tribunals; and (4) laws and legal systems rooted in Roman law, such as those of France, Quebec, and Scotland. When used herein in the fourth sense, the term is intended to be distinguished from “common law” (qv). clemency: See “commutation, commute.” clubber: someone who kept reluctant oxen in motion by prodding or striking them with a stick when they stopped. colony: although this term is sometimes used herein to refer to any colony of Great Britain, reference to “the colony” designates the Red River Settlement (as does “the settlement”). commissioned evidence: When witnesses are out of the jurisdiction, a court may issue a commission authorizing a court or a designated person or persons in the foreign jurisdiction to examine those witnesses and to return a transcript of the examination. The best known example of such a commission involving the General Quarterly Court of Assiniboia arose in Corbett v. Dallas – an action in the English Court of Common Pleas that had the effect of challenging the General Court’s decision in R. v. Corbett (case 238, vol. 2, 366) but was never completed. common: communal grazing land. common law: As English kings began, from the twelfth century onward, to centralize the country’s governance, itinerant royal justices gradually developed, on a case-by-case basis, laws that were common to the entire realm. Unlike statutory law, which was enacted by Parliament from time to time, common law was unwritten, except to the extent that law reports published the judges’ rulings and reasons for judgment. As Parliament became gradually more powerful over time, the principle of legislative supremacy became accepted, according to which statutes automatically overrule inconsistent provisions of the common law. Statute law has never fully displaced common law, however, and the laws of both England and its former colonies remain a mixture of legislatively enacted and judge-made components. The term “common law” has several meanings, the most significant of which, for purposes of this study, are (1) judge-made law, as distinguished from written legislative enactments; and (2) a legal system whose origins, like those of every Canadian province except Quebec, are rooted in the law of England. When used in the second sense, it is intended to be distinguished from civil law (qv) systems that are based on Roman law. See the entry for “common law” in Walker (1980). For Recorder Adam Thom’s thoughts about the creative potential of the common law, see vol. 1, 66.

Glossary

705

commutation, commute: The governor of Assiniboia and other HBCappointed governors were endowed with some of the royal prerogative (qv) powers and immunities of viceregal governorships of British colonies. This authority included the power of mercy, by which penalties imposed by the courts could be commuted (i.e., altered, ameliorated, or expunged). Such commutation of penalties is sometimes called “remission” (as in case 58, vol. 2, 103, the first recorded instance of its use in Red River courts). In the United States it is referred to as “executive clemency.” compeared: appeared in court. The Oxford English Dictionary (2nd ed.) defines “compeer” as “[t]o appear, ... esp. at a formal assembly,” and notes a special usage in Scots law: “To appear in Court, as a Party to a cause.” The use of the expression in the General Quarterly Court records in respect of the appearance of witnesses who were not parties probably reflects Recorder Adam Thom’s Scottish background and his imperfect understanding of the word’s precise meaning in Scots law. compounded: In a judicial context, “compounded” means settled by agreement between the parties or, in a criminal case, that the charges have been dropped. conduct money: travel expenses and a per diem fee required to be paid to each witness subpoenaed for appearance at trial by the person who obtained the subpoena (qv). cooper: one who manufactures or repairs wooden barrels. costs: an award made to one party to civil litigation, usually the successful one, against the other as reimbursement for the first party’s litigation expenses. Council of Assiniboia: See “Assiniboia.” coyote: See “wolf.” criminal conversation: a claim for damages (a civil claim despite the misleading term “criminal”) by a husband against a man accused of adultery with the plaintiff’s wife. This tort (qv) was abolished in most jurisdictions relatively recently. cross, crossing: These words are used frequently in the court records to refer to crossing, or helping others to cross, from one side of the Red or Assiniboine River to the other, as in, “I crossed Mr. Smith” or “He crossed his ox.” The latter statements signify that the person or animal in question was conveyed or driven over or through the water by someone else. cross-examination: examination of a witness in court by someone adverse in interest. See “examination in chief.” current (when used in relation to a date): the present month. Interchangeable with “instant” (“inst.”). See also “ultimo (ult.).” de bonis: related to personal property, as opposed to land. See “attachment” (post-1870). decerned: gave judgment. “Decern” in Scots law means to decree or make a formal order, and its use in the court records might be attributable to Recorder Adam Thom’s Scottish upbringing.

706

Glossary

declaration: a document that briefly set out the nature and basis of a plaintiff’s claim. A lawsuit was commenced by filing the plaintiff’s declaration with the court and serving (qv) the declaration on the defendant together with a writ of summons from the court ordering the defendant to appear in court on a particular day to respond to the claim. The declaration was later called a statement of claim (post-1870). defamation: the tort (qv) of injuring another’s reputation by a false statement, whether in written or otherwise permanent form (libel), or in verbal or otherwise transitory form (slander). Defences include truth, “privileged” status on the part of the defendant by reason of a right or duty to make the statement in question, and the right to express “fair comment” opinions about matters of public significance. Malice on the defendant’s part defeats both of the latter defences. demurrer: a defendant’s response to a plaintiff’s claim to the effect that even if all allegations in the declaration (qv) were proven, they would not establish a sufficient basis for the claim in law (post-1870). de novo: anew or afresh, as in bringing a new lawsuit. deodand: The practice of specifying the value of the weapon used to kill someone – as in the Capenesseweet (case 6, [A]23) and Newkesequeskik (case 8, [A]38) indictments – was a hangover from an ancient common law rule called “deodand,” which provided for an object or animal that caused someone’s death, or the value of that object or animal, to be forfeit to the Crown, or to others such as the victim’s family to whom the Crown might choose to award it. Although the practice was often criticized, and was eventually abolished after someone attempted to apply it to a locomotive, it remained a part of English law during at least some of the period covered by the court records. See Walker (1980, 351). Although there is no indication that deodand was ever invoked in any Red River case, the ancient fixation on the value of deadly weapons was sometimes reflected in the terminology of indictments. deponed: testified or gave written evidence under oath or solemn affirmation. “Depone” is the Scots law equivalent of “depose,” and its use in the court records might be attributable to Recorder Adam Thom’s Scottish upbringing. deponent: one who gives evidence, written or oral. deposition: the sworn or solemnly affirmed evidence of a witness. The term commonly refers to evidence given out of court for use in court proceedings, but the term is also sometimes used, as in the Keetchipiwaipasse indictment (case 4, vol. 2, 9) to refer to evidence given (deponed) in the courtroom. An affidavit is a written deposition. de terris: relating to real property (land), not to personal property (goods). See “attachment” (post-1870). District of Assiniboia: See “Assiniboia.” dit: called, or known as. The word introduces a nickname, and is applied sometimes to a person’s surname, as in “Riell, dit L’Ireland” (case 77, vol. 2, 211), and sometimes to a given name, as in “Louison, dit Bonhomme” (case 365, vol. 2, 518).

Glossary

707

ejectment: a legal proceeding by someone who claims to have been deprived of the rightful possession of land (“ejected”). The proceeding seeks to regain such possession, and to be paid compensation. en banc: a sitting of a court in which all available members of the court participate, as when Manitoba’s first Court of Queen’s Bench sat with its full membership for appellate purposes (post-1870). All of Assiniboia’s courts sat en banc, but the term was rarely if ever used at that time because that was the only way they ever sat. English Halfbreed: See “Racial/Ethnic Identifiers” in the List of Conventions and Abbreviations. estreat: the process by which a recognizance (qv) is forfeited for default and converted to a debt owed to the Crown. examination in chief: examination of a witness in court by someone who is not adverse in interest to that witness. It is the opposite of cross-examination (qv). execution: execution has several meanings, including signature of a contract, will, or other legal document; seizure of personal property or land in satisfaction of a judgment (see “attachment” and “fieri facias”); and the carrying-out of a death sentence or other judicial order. executive clemency: See “commutation, commute.” ex parte: proceeding without the presence of a party to litigation. This occurs only when reasonable steps have been taken to notify the missing party of the proceedings, or in a situation of great urgency. expences (expenses): See “costs.” faggot road: a faggot road, later called a “corduroy road,” was composed of logs (faggots) laid side-by-side across the right-of-way to assist passage over swampy or wet areas. farthing: an English monetary unit valued at one-quarter of a penny (qv). See “pound sterling.” The award of a farthing in damages by a court (sometimes called “contemptuous damages”) signified the court’s opinion that the plaintiff’s claim, although legally valid, lacked moral merit. fee simple: the most extensive form of private ownership rights in land recognized by common Law. felony: At common law, very serious crimes (murder, arson, rape, wounding, robbery, etc.) were classified as felonies and carried the consequence, in addition to other punishments, of forfeiture of the felon’s property. Less serious crimes (including such relatively grave offences as riot and theft) were referred to compendiously as “misdemeanours” and did not carry that consequence. Neither the distinction nor the consequence has been part of English or Canadian law for many years. Fenians: The Fenian Brotherhood was an Irish American paramilitary organization that attempted to retaliate against Great Britain for what its members considered to be oppressive policies and actions vis-à-vis Ireland by attacking Britain’s North American colonies. It conducted several mostly unsuccessful incursions against targets in New Brunswick and Canada/Ontario in 1866 and

708

Glossary

1870. See Macdonald (1910) and R.B. Brown (2009). Neither of those sources deals with the 1871 Manitoba raid, which, although led by some Fenian leaders, lacked official support from the Fenian Brotherhood. That topic is thoroughly covered, however, in Howard (1952). FEU DE JOIE : a discharge into the air of firearms to signify victory or celebration. fieri facias: The writ (qv) of fieri facias (often abbreviated to fi. fa.) was an order of execution (qv) against property of the defendant to satisfy a judgment in favour of the plaintiff. It was also referred to as “attachment.” If it was directed against land, the term “de terris” (qv) was used; if against personal property (goods), the term was “de bonis” (qv). If no goods were recovered by the sheriff, the writ was returned to the court marked “nulla bona” (qv). See, for example, case 529, vol. 2, 630–1 (post-1870). Forks: the junction of the Red and Assiniboine Rivers. See “Assiniboia, District of.” francophone: one whose first language, or usual mode of expression, is French. In Canada the term is most commonly used in contradistinction to anglophone (qv). French Halfbreed: See “Racial/Ethnic Identifiers” in the List of Conventions and Abbreviations. fulling: a process of shrinking, and thereby thickening, woollen cloth by means of moisture, heat, and pressing. gaol: jail. General Court: In the context of the Hudson’s Bay Company’s organizational structure, the General Court was the annual November meeting of the company’s shareholders. The term is also used herein as a short form of “General Quarterly Court of Assiniboia.” Governor and Committee: the London-based governing body of the Hudson’s Bay Company, consisting of a governor, deputy governor, and committee of seven shareholders, chosen or confirmed at the company’s annual November General Court (qv). governor and council: the local governing body of Rupert’s Land (qv) or of any designated area therein such as Assiniboia (qv). Local governors and councils, appointed by the Governor and Committee (qv), were empowered by the charter (qv) to govern and administer justice within their designated areas. governor of Assiniboia: See “Assiniboia.” governor of Rupert’s Land: See “Rupert’s Land.” grand jury: a body of citizens, between twelve and twenty-three in number, called together in the case of a serious crime to consider evidence against the accused person and determine whether that evidence was sufficient to justify trying that person, in which case the grand jury would return a “true bill,” or “indictment,” and the accused would be tried by a regular (“petty”) jury composed of twelve persons other than those who served on the grand jury. The procedure originated in England, and does not appear to have been used in Scotland. It has

Glossary

709

been abolished in many jurisdictions, including Canada, where it was replaced by the preliminary enquiry. Trials for less serious crimes were commenced by information (qv). guinea: a kind of “baker’s dozen” pound sterling (qv) – a monetary sum equivalent to 21 shillings – in which lawyers were traditionally paid. There have never been official banknotes or coins in guinea denominations, and no guinea symbol is known to the author. Halfbreed: See “Racial/Ethnic Identifiers” in the List of Conventions and Abbreviations. hard labour: In the latter stages of the period examined in this study, convicted prisoners were sometimes sentenced to engage in hard labour while incarcerated. Although that was thought to add stringency to the punishment, it was often welcomed by the prisoner as providing some relief from prison boredom. The most common form of hard labour seems to have been picking “oakum” (qv). HBC: Hudson’s Bay Company. See “charter.” hearsay evidence: evidence by a witness concerning what he or she was told by someone else rather than what he or she learned directly by means of his or her unaided senses. Hearsay is often rejected by courts because of its doubtful reliability. Double hearsay (what one was told that someone else was told) is especially problematic. Hearsay is not absolutely inadmissible, however, and is sometimes admitted subject to an admonition to treat it cautiously. Much hearsay evidence was admitted in proceedings before the General Quarterly Court of Assiniboia, often with no such warning as to its reliability. The famous marathon trial in Foss v. Pelly & Davidson in July 1850 (case 77, vol. 2, 136) provides many examples, including double and triple hearsay. holder in due course: a transferee for value of a negotiable instrument – bill of exchange (qv), cheque (qv), or promissory note (qv) – who has no knowledge of any defect in the transferor’s rights at the time the transfer takes place. Such a transferee is entitled to payment of the instrument’s face value regardless of any defence that might be available against the transferor. An example is provided by Garret v. Gerald (case 215, vol. 2, 343). homicide: causing the death of a human being. Homicide may be either culpable or nonculpable. Culpable homicide includes murder (qv) and manslaughter (qv). Hudson’s Bay Company: See “charter.” Hudson’s Bay Company General Court: See “General Court.” Hudson’s Bay Company Governor and Committee: See “Governor and Committee.” ignoramus: defined by Wharton’s Law Lexicon (14th ed.) as, “(We are ignorant). The word formerly written on a bill of indictment by a grand jury when they rejected it” (Wharton 1938). See “grand jury.” Indian: See “Racial/Ethnic Identifiers” in the List of Conventions and Abbreviations.

710

Glossary

indictment: See “grand jury.” information: the formal complaint, filed with a justice of the peace or magistrate, that commenced criminal proceedings in relatively minor criminal cases. More serious charges required an indictment (true bill) from a grand jury (qv). instant (inst.) (when used in relation to a date): the present month. Interchangeable with “current.” See also “ultimo (ult.).” interlocutory matter or motion: an interim proceeding, procedural in nature, occurring during the course of litigation. interrogatories: If a party alleged that a plaintiff’s declaration (qv) or a defendant’s plea (qv) did not contain sufficient information, written questions, called interrogatories, could be served on the opposing party seeking clarification (post-1870). join issue, joinder of issue: A plaintiff and defendant engaged in civil litigation are said to “join issue” at the point in the pretrial process where one party has asserted in writing and the other has denied in writing all the facts crucial to the issue in dispute. Sometimes, however, the expression “joinder of issues” was used in a different sense: to refer to the amalgamation of separate lawsuits involving the same parties and issues. It may, for example, have been used in that sense in cases 461 and 462, vol. 2, 583 (post-1870). JP: justice of the peace (qv). jury: a group of men selected by the sheriff from a jury panel (qv) to adjudicate cases before the General Quarterly Court of Assiniboia as members of either a grand jury (qv) or a petty jury (qv). See also “mixed jury.” jury challenges: The suitability of potential jurors may be challenged in two ways. If it is contended that a candidate for selection is disqualified for some specific reason (bias, mental or physical disability, etc.), a party may challenge that person “for cause,” and the candidate will be removed if cause is proved. Parties are also allotted by law a number of “peremptory” challenges (varying in number from defence to prosecution, jurisdiction to jurisdiction, time to time, and situation to situation), which may be exercised without proof or designation of cause. jury panel: a list of property owners thought by the sheriff to be suitable for jury duty, from which the members of particular grand juries (qv) and petty juries (qv) were selected. Apart from being male, adult, and the owner of real property, no other formal qualification for inclusion on Assiniboia’s jury panels is known; but no persuasive evidence has been found of the inclusion of Indians. No other racial, ethnic, or national exclusion seems to have been practised. justice of the peace: a judge, similar to the magistrates who comprised the petty courts of Assiniboia but with greater powers, at least in later years, to issue warrants for arrest and imprisonment and other forms of legal process. The office is ancient, originating in the English Justices of the Peace Act of 1361, which

Glossary

711

remained in force throughout the HBC’s entire reign over Rupert’s Land. It is not clear, however, how many, if any, JP commissions were issued under the 1361 act for service in Rupert’s Land. A later English statute, the Canada Jurisdiction Act of 1803, authorized the appointment of JPs for the “Indian Territories,” and, despite disagreement about whether “Indian Territories” included Rupert’s Land, JPs were appointed under that act from time to time to exercise jurisdiction in Rupert’s Land. A third type of JP commission – issued by the Hudson’s Bay Company on the sole authority of its own charter – was in use in Assiniboia by at least 1850, and continued to be used into the 1860s. The terms “justice of the peace” and “magistrate” were often used interchangeably, which is not surprising given that both JPs and magistrates sat side-by-side in the petty courts of Assiniboia. The offices differed legally, however, both in respect of the JPs’ greater jurisdiction over the issuing of court processes, and in that they were unpaid (although the concurrent appointment of many JPs as petty court magistrates entitled them to the same remuneration in practice as their colleagues). knocked up: exhausted. The term seems to have been used in reference to both humans and animals. There is no evidence in the court records or related documentation of the later meaning, when applied to women, of becoming pregnant. Law Officers of the Crown: the attorney general and solicitor general. Although ministers of the Crown, with departmental and political responsibilities, the holders of these offices were (and are) also expected to give objective, nonpartisan advice on important questions of public law. See Edwards (1964). levee: a public reception given by royalty or representatives of royalty, traditionally in the morning – “at rising” – hence the name. liard: a distinctive grey colour of domestic animal. libel: See “defamation.” Although the most common use of the word is as a form of defamation, another meaning refers to a written statement of the plaintiff’s claim in a civil lawsuit. It was used in the latter sense in Smith v. Kirton (case 1, vol. 2, 3). link: a standard unit of a surveyor’s chain, 7.92 inches long. See also “chain.” magistrate: See “justice of the peace.” malice aforethought: premeditation. manslaughter: the unlawful killing of a human (homicide) (qv) that does not amount to murder because the perpetrator lacks malice aforethought (qv), acting instead under the impulse of sudden anger, provocation, negligence, etc. mercy: See “commutation, commute” and “royal prerogative.” merino: a fine-quality wool, used in high-quality fabrics. Métis/Metis: See “Racial/Ethnic Identifiers” in the List of Conventions and Abbreviations. middlemen: the crew members of York boats (qv), who occupied the six central positions and did the rowing. misdemeanour: See “felony.”

712

Glossary

mixed jury: After the Sayer case in 1849 (case 68, vol. 2, 113) trials involving both anglophones (qv) and francophones (qv) were required to be heard by juries composed equally of French- and English-speaking persons. There is a suggestion in an 1861 Nor’-Wester account of a trial in the General Court that year that Indians were sometimes included in the mixture: “The mixed character of our population occasions something else besides the confusion of tongues. Juries have to be comprised of suitable representatives of the parties at the bar – suitable not only as to station or calling generally, but as to race and language, whether French, English or Indian” (NW611130). No other evidence of such a practice has been found, however. Municipal District of Assiniboia: See “Assiniboia.” murder: the unlawful killing of a human being (homicide) (qv) with malice aforethought (qv). Unlawful homicide without malice aforethought is manslaughter (qv). negotiable instrument: See “bill of exchange” and “holder in due course.” nisi (“unless” in Latin): a rule, order, or decree nisi is one that will take effect at some specified future time unless some specified condition is met or specified event occurs in the meantime (post-1870). noce: a wedding celebration party. nolle prosequi: indicates a decision by the Crown that a particular matter is “not to be prosecuted.” non compos mentis: not of sound mind. non est inventus: This is a return (qv) made by a sheriff or constable unable to locate a person he has been ordered to arrest, or upon whom he has been ordered to serve a writ (qv). nonsuit: dismissal of a civil lawsuit, often without hearing from the defendant, on the ground that the plaintiff’s claim or evidence, even if entirely accepted on the facts, does not assert or establish a claim recognized by law. The term was often also used by the quarterly courts of Assiniboia to describe the dismissal of a claim simply because the defendant’s evidence was accepted over that of the plaintiff. Northern Council: See “Rupert’s Land, Council of.” North West Company: A Montreal-based fur-trading company that was the principal competitor of the Hudson’s Bay Company (qv) until the two organizations merged in 1821 under the name of the latter. note of hand: a promissory note (qv) or bill of exchange (qv). not proven: a verdict, lying between “guilty” and “not guilty,” that is possible in criminal prosecutions under Scots law. In terms of penal consequences, it has the same effect as a verdict of “not guilty”; but socially it signifies that while the court or jury does not consider the prosecution to have proved guilt beyond a reasonable doubt, as is required for conviction, it is not willing to say that the accused is innocent. Such a finding was not permissible under the law of England, which regulated legal proceedings in Rupert’s Land, but it appears to have been made in case 112, vol. 2, 222.

Glossary

713

nulla bona: a notation on the return (qv) of a writ of attachment (qv) indicating that no seizable goods were found. See “fieri facias” (post-1870). NWC: North West Company (qv). oakum: rope shreds used to caulk the seams of boats. A requirement to “pick oakum” – shred pieces of old rope – was a common form of “hard labour” (qv) imposed on prisoners. offset: a claim by the defendant offsetting that of the plaintiff in whole or in part. In modern practice, the term “set-off” is sometimes used to describe a countervailing claim arising from the same transaction upon which the plaintiff’s claim is based, or a related one; whereas “counterclaim” refers to one that has a more distinct origin. Ossiniboia: See “Assiniboia.” outfit: A business year in the fur trade. painter: a rope used to secure or tow a boat. pannikin (variously spelled): a small metal drinking vessel. park: A settler’s “park” was the “infield” portion of the farm, closest to the house and outbuildings. It was used for the household garden and cereal crops. Animals usually grazed in the “outfield” area, beyond which was a “hay privilege.” See Coutts (2000, 134). particulars: If a defendant regarded the facts alleged in the plaintiff’s declaration (qv) as insufficient to understand the nature or basis of the claim, the defendant could, before pleading (replying) to the declaration, seek an order that further information (“particulars”) be provided by the plaintiff (post-1870). pease: peas. pemmican: a concentrated food consisting of ground dried meat, usually buffalo, melted fat, and sometimes dried berries. High in nutrition and easily preserved and transported, pemmican was the principal staple food of the fur trade. pence: plural of penny. See “pound (sterling).” penny: See “pound (sterling).” peremptory challenge: See “jury challenges.” petty jury: a body of twelve adults (male at all times relevant to this study) charged with determining, in senior courts (the General Quarterly Court and the Court of Queen’s Bench in Assiniboia and Manitoba respectively), either the guilt or innocence of persons on trial for serious crimes or the respective entitlements and liabilities of parties to civil litigation. See also “grand jury.” plea, pleading(s): In civil litigation, a “pleading” is a preliminary written statement of a party’s claim or defence. Prior to 1870 pleadings were not required in Assiniboia courts. Verbal statements sufficed. Following the creation of Manitoba in 1870, however, written pleadings became necessary. Defendants were required within a specified time after the receipt of the plaintiff’s declaration (qv), or of particulars (qv) where ordered, to file and serve (qv) on the plaintiff his plea (later known as a statement of defence), which briefly outlined the defendant’s

714

Glossary

side of the story and the reasons why, in the defendant’s submission, the claim should be dismissed (post-1870). posse comitatus: a group of private persons authorized by warrant or other lawful order to assist a sheriff or other law enforcement officer to carry out that officer’s duties on a particular occasion. Literally, the expression means “power of the county.” pound (sterling): English currency was in common use at Red River during most of the period covered by this book, although other currencies occasionally showed up as well. The English units were the pound sterling, or “quid” (£); the guinea (qv); the shilling, or “bob” (/), of which there were twenty in every pound and twenty-one in every guinea; the penny (d) (“pence” in plural), of which there were twelve in every shilling; and the farthing, worth a quarter of a penny. In the court records, pounds, shillings, and pence are designated in various, sometimes confusing, ways, often separated by dots or slashes. The convention adopted herein, unless the context indicates otherwise, is to express English currency sums as in the following example: £12.00.04 (12 pounds, 0 shillings, 4 pence). For a special use of the farthing in awards of damages, see “farthing.” praecipe: a written request to a court for some action, such as issuing a writ or signing a judgment (post-1870). premises: foregoing circumstances. prerogative: See “royal prerogative.” prescription: a process by which rights in relation to property may be acquired by virtue of the mere unchallenged possession or use of the property in question for a specified period of time. Although time periods varied considerably from situation to situation, twenty years was common for the acquisition of rights of way over real property at the time the quarterly courts of Assiniboia functioned. prosecute, prosecution: Then, as now, the terms “prosecute” and “prosecution” were most commonly used to mean proceeding with a criminal charge. However, they were sometimes also used to mean pursuing a civil claim. process: court process (as distinguished from court procedure, which refers comprehensively to all procedural regulations of the courts) comprises documents such as summons, arrest warrants, and papers that are required to be served upon a person or persons involved in court proceedings. promissory note: a form of bill of exchange (qv) consisting of an unconditional statement in writing, made by one person to another and signed by the maker, promising to pay on demand or at a fixed or determinable future time a sum certain in money to, or to the order of, a specified person or to the bearer of the document. prothonotary: the chief clerical officer of the Court of Queen’s Bench (post-1870). public interest or public welfare: the designation of the prosecuting authority in criminal cases before 1864. After the Council of Assiniboia decided,

Glossary

715

on 7 January 1864, that proceedings in the courts should be regulated by the laws currently in force in England, “in as far as the same are known to the court and are applicable to the condition of the Colony,” criminal prosecutions were commenced in the name of “The Queen,” or Regina, a practice that had been occasionally followed before then as well. puisne judge: an associate justice; a member of a court other than the chief justice. Since chief justices are, generally speaking, merely “first among equals,” puisne justices possess the same powers as their chief justices, except for the administrative responsibilities entailed in, or special powers legislatively bestowed upon, the office of chief justice. puncheon: a large cask. QC: abbreviation of Queen’s Counsel (qv). Queen’s Counsel (King’s Counsel – KC – in times when a male monarch is on the throne of England): an honourary designation conferred by the Crown by letters patent upon certain senior members of the legal profession. In England only barristers (qv) are so honoured, but in Canada, where the profession is not formally bifurcated, lawyers who practise as solicitors (qv) are also eligible. Although originally restricted to lawyers retained by the Crown, the designation has long been conferred as well on lawyers who never act for the Crown – and even those who routinely act against the Crown. Queen’s evidence: evidence given against someone with whom the witness has been associated in an alleged crime on condition that the witness will not be prosecuted in the same matter. recognizance: a bond or promise made in court undertaking to perform or abstain from some action, such as to appear again in court, to keep the peace, to pay a sum of money, or to stay away from certain premises. See “estreat.” See also the example in Doherty v. Shepherd, case 89, vol. 2, 186. record: The record was a compilation of documentation for a particular case: the declaration, demand for particulars, particulars, plea, etc. It was filed with a court by the plaintiff to signify that the case was ready to proceed to trial; or, as in case 503, vol. 2, 618, to inform the court that it would not be proceeding to trial because the parties had agreed to some other conclusion (post-1870). recorder: a municipal-level judge of limited criminal jurisdiction in England and Wales at the time; a barrister sitting singly in a quarter sessions court. Black’s Law Dictionary defines “Recorder,” historically, as “[a] magistrate with criminal jurisdiction in some British cities or boroughs” (Garner 2004). For a fuller explanation of English and Welsh recorders, see Wharton (1938, 828, 847). The term was not used in Scotland. The recorders of Rupert’s Land differed from the British model in that they were members of a multiple-member tribunal, which had plenary jurisdiction, both criminal and civil. Red River cart: a large wooden cart, held together mostly by rawhide, with two oversize concave wheels designed to traverse rough terrain and capable of

716

Glossary

doubling, with the wheels removed, as a boat when water had to be crossed. Drawn by pony or ox, and easily repairable in the wilds, it was the most common vehicle for long-distance transport over the prairie throughout most of the period under review. Red River Settlement: See “Assiniboia, District of.” Regina (or R.): Queen. See “public interest or public welfare.” remission: See “commutation, commute.” replevin: a court order that goods the plaintiff claims were wrongfully taken by the defendant be seized and held until the right of possession can be determined by the court (post-1870). return: After serving a court document on someone or executing a warrant of attachment or arrest, the constable or other person who effected service or execution filed a report called a “return” with the court, certifying what was done. The term can also refer to the report of one who takes commissioned evidence (qv). riparian right: the right of a person in possession of land bordering a river or other watercourse to make reasonable use of the water. royal prerogative: At one point in British constitutional history, most governmental power resided in the monarchy. Over time, much of that power was usurped by Parliament, which, by the mid-seventeenth century, had established its ultimate supremacy over the monarchy and all other governmental organs. There are some royal powers, however, that Parliament never chose to take away. That residue of monarchical authority, known collectively as the royal prerogative, includes the prerogative of mercy, under which representatives of the Crown may pardon or commute penalties imposed by the courts. See “commutation, commute.” rule nisi: See “nisi.” Rupert’s Land: the vast territory in north-central North America, comprising the entire Hudson Bay drainage basin, that King Charles II granted to the Hudson’s Bay Company by royal charter in 1670. See “charter.” Rupert’s Land, Council of: the body of Hudson’s Bay Company senior field officers created by resolution of the company’s General Court (qv) on 29 May 1822 to govern Rupert’s Land (qv) in collaboration with the governor of Rupert’s Land (qv) under the authority of the company’s 1670 charter (qv). Its members were appointed from time to time by the Governor and Committee of the Hudson’s Bay Company. The governor and council (qv) normally met once annually, usually in June at Norway House, to conduct their business. Although often known as the Northern Council or the Council of the Northern District, the body is, for consistency, called the Council of Rupert’s Land herein. Rupert’s Land, governor of: the officer or officers appointed under that title by the Governor and Committee of the Hudson’s Bay Company (qv) to govern Rupert’s Land (qv) in collaboration with the Council of Rupert’s Land (qv)

Glossary

717

under the authority of the company’s 1670 charter (qv). seduction: a common law action in tort (qv) entitling parents to sue men who made their unmarried daughters pregnant, and be awarded compensation for the loss of the daughters’ domestic services during their confinement. A related action could be brought by employers of female domestic servants in similar circumstances. serve, service (of documents): formal delivery of court documents (notices, writs, warrants, declarations, etc.) to the persons affected. settlement: Although this term is sometimes used herein to refer to any settled community, “the settlement” designates the Red River Settlement (as does “colony”). shilling: See “pound (sterling).” SIC (“such” in Latin): an assurance that a word or expression quoted from a document or other statement is accurately quoted. slander: See “defamation.” solicitor: See “barrister.” steersman: the man who steered a York boat (qv), by means of a long oar at the stern, and was for that reason the senior member of the crew, followed in seniority by the bowsman (qv). sterling: See “pound (sterling).” style of cause: the formal title of a civil or criminal case in the courts, such as Smith v. Jones or The Queen (often abbreviated R.) v. Jones. For an explanation of styles of cause in the courts of Assiniboia, see “public interest or public welfare.” subpoena: a court order requiring a person to appear before the court as a party, a witness, or a juror. Literally, the word means “under penalty,” and failure to obey the order without just excuse is punishable by fine or other punishment. summons: a subpoena (qv). surety: a person who provides a bond guaranteeing to the court that another person will fulfil bail conditions or be otherwise of good behaviour during a defined period of time. taxation of costs: A successful party to civil litigation, whether plaintiff or defendant, is entitled, in the court’s discretion, to be paid his or her costs by the loser. That obligation can be made a court order if the court or one of its officials certifies that the claimed costs are legitimate. The examination and certification process is known as “taxation.” It does not involve the payment of any tax. See “bill of costs.” toro: an Anglicization of “taureau,” which was “a strong bag made of buffalo rawhide sewn hair-side out, used as a container for 90 pounds of pemmican” (Avis 1967). tort: wrongful, but not necessarily criminal, conduct for which the victim may sue the perpetrator civilly for damages or other compensatory relief. Examples are trespass to the person (assault or battery) (qv), defamation (qv) (written libel

718

Glossary

or verbal slander), and, at the time the quarterly courts functioned, criminal conversation (qv) (sexual congress with another man’s wife). tripmen: boat crews. See “York boats,” “bowsman,” “middlemen,” and “steersman.” true bill: See “grand jury.” ultimo (ult.) (when used in relation to a date): the month previous to the present one. See “instant (inst.)” and “current.” Union Jack: British flag. ut supra: “as above” in Latin. vacation: the period of time between court sessions. wolf: The evidence in the court records refers occasionally to “wolves.” Although there is no way of being certain, it seems probable that at least some of those references were to “prairie wolves,” which are usually called “coyotes” today. writ: court order. See particular types of orders, such as “attachment,” “capias ad respondendum (writ of),” “fieri facias,” “subpoena,” etc. XY Company: The New North West Company, commonly called the XY Company after the markings it placed on its fur bales, was formed by former North West Company employees dissatisfied with the 1795 reorganization of the old firm. The new company operated in competition with both the HBC and the NWC until 1804, when it merged with the latter. YF: the abbreviation for York Factory, marked or stamped, often in stylized form, on letters or packages bound for that destination. York boats: Long wooden boats, based on a type used in the Orkney Islands, that were Rupert’s Land’s principal means of heavy-duty inland water transport throughout the period of this study. York boats were from 34 to 42 feet in length, 9 feet wide amidships, and 3 feet in depth. They were capable, depending on size, of carrying from more than 2.5 to more than 5.5 tons of cargo. Each carried a crew of “tripmen,” consisting of a steersman (qv), bowsman (qv), and six middlemen (qv). See Rich (1956, xl–xlii).

Notes

Conventions and Abbreviations 1 2 3

See “Racial/Ethnic Identifiers” below. Taylor (2005), prepared before the fourth volume was recognized for what it is, designates volumes A, B, and C as books 1, 2, and 3 respectively. NW600328.

Chapter One 1 2

3

4 5

For a fuller account of social, legal, and governmental circumstances during this period, see volume 1, chapter 5. Although three of the four surviving original volumes of court records are paginated, the pagination is exclusive to each volume. The editor has accordingly assigned the prefix letters A, B, C, and D to the four volumes, and sequential page numbers to the unpaginated volume D. At the top of many pages, the date of the sitting is stated. With only a few exceptions, those date notations have been omitted throughout. The exceptions are for occasions when the date changed from the date of proceedings on the preceding page. Recorder Adam Thom, who had a low opinion of the judicial competence of petty court magistrates generally, was especially contemptuous of James Bird, who had, he told Governor-in-Chief Simpson, attempted to persuade the other members of the court in the first case that the plaintiff had “a right to sell his wife [presumably to the defendant], provided he put the halter round her neck, and so gave [the purchaser] livery and seisin [ownership and possession] of the freehold.” Thom to Simpson, 27 March 1845, HBCA: D.5/13, fo. 343b. “Ditto” was designated by either a single quotation mark (“) or “do.” In this case, both designations were used. Commonly spelled “Cary” in other sources (e.g., Oliver 1914, 63).

720 6 7 8

9 10 11

12 13 14 15

16 17

18

19 20

21

Notes to pages 3–6 See explanation in following Commentary. Namely. Whereas adult witnesses, other than unbaptized Indians, gave evidence under oath in the Quarterly Courts, plaintiffs, defendants, and criminal accused gave unsworn statements, although that practice would change over time. As to unbaptized Indians, see the examination of Rayome at page 4. See Commentary following this case. This symbol indicates that the editor has inserted a paragraph break to assist ease of reading. Although the most common use of “libel” is as a form of defamation, it also means a written statement of the plaintiff’s claim in a civil lawsuit. Although clearly used in that sense here, it seems an odd usage since it was rare, and certainly not obligatory, for written pleadings to be used in Red River courts, and the General Court records contain no other occurrence of “libel” used in that sense. See “defamation” and “plea, pleading(s)” in Glossary. Appeared as a witness. See “compeared” in Glossary. Testified. See “depone,” “deponent,” and “deposition” in Glossary. Proof of marriage between the plaintiff and the woman in question was an essential component of a legal claim for the tort of criminal conversation. Duncan McRae was the Smiths’ son-in-law. The McRaes had lived with the Smiths and Joseph Kirton until shortly before the evening described in William Smith’s statement. A writ ordering someone to appear before a court. See “summons” in Glossary. John Gunn was a member of the jury. Although it would be unheard of in modern court practice for a jury member to give evidence in a case he or she was adjudicating, it was not an uncommon practice at Red River. Indeed, members of the General Quarterly Court itself also gave evidence on occasion. See, for example, Foss v. Pelly & Davidson, case 77, vol. 2, 136, where four of the seven members of the court testified, plus the court clerk for good measure. Thirty pounds was a substantial sum of money. It has been estimated as the equivalent, in England in 2001, of £1,992 (McCusker 2001). A middlemanagement Hudson’s Bay Company officer in 1844 typically earned about £100 annually. Gave judgment. See “decerned” in Glossary. Wrongful, yet not necessarily criminal, conduct for which the victim may sue the perpetrator civilly for damages or other compensatory relief. See “tort” in Glossary. Although there does not seem to have been time for sexual intercourse on the evening first described, the evidence established that it had occurred on previous occasions.

Notes to pages 6–9 22 23

24 25 26

27 28 29 30 31

32 33

34

721

Thom to Simpson (“Private”), 1 January 1845, HBCA: D.5/13, fo. 7ff. Failure to list the jurors, as was normal at this point in the court’s history, and as was done for the Keetchipiwaipasse case later the same day (vol. 2, 10), appears to have been an oversight. It is possible that the same persons who constituted the later jury also formed this one. Although the legal nature of the alleged wrong was not stated, it would have been the tort of slander at common law, or defamation under Scots law. As above. Absolved the defendant; dismissed the plaintiff’s claim. Initially spelled “assoiled” but later corrected (at Thom’s insistence?). See “assoilized” in Glossary. “Public Interest” signified the prosecuting authority, and thus indicated that this was a criminal case. See “public interest” in Glossary. Also spelled with hyphens in the body of the record: Ay-sass-ooquun. Indian names are spelled without hyphens herein. An information was the formal complaint that commenced relatively minor criminal proceedings. See “information” in Glossary. Man’s coat. See “capot” in Glossary. The value of stolen goods was commonly specified to establish the seriousness of the offence, which was relevant to both the determination of an appropriate penalty and the jurisdiction of the court. The Council of Assiniboia decreed in February 1835 that the petty sessions courts could try both civil and criminal cases involving less than 40 shillings. While the General Quarterly Court had full jurisdiction, it normally left such smaller matters to the petty courts. Although the theft in this case did not exceed 40 shillings, the fact that an escape from prison was involved may have been considered to raise the seriousness of the case to a level appropriate for the General Quarterly Court. Spelled “Keetchepewaipas” in the body of the record. Thom’s charge to the grand jury was an extremely lengthy, wide-ranging, and detailed overview of every legal aspect of the case, and of Rupert’s Land’s justice system, that could conceivably be of interest to a juror, from the roots of the court’s jurisdiction in the Hudson’s Bay Company charter to the virtues and roles of various types of juries, the indictment process, the characteristics of various types of homicide, liability for attempted crimes, the defence of drunkenness, the iniquity of selling liquor to Indians, and much more. His reading of the presentation, which he subsequently published in a forty-four-page pamphlet in England, must have taken well over an hour, and would almost certainly have left most jurors with spinning heads if they were still awake. HBCA: D.5/13, fo. 270ff., FC 3207.99, pamphlet Z8. An indictment was the formal charge used to commence prosecution of the most serious types of crime. See “indictment” and “information” in Glossary.

722

Notes to pages 10–16

It was the task of the grand jury to present a bill of indictment to the court if it considered the evidence sufficient to justify bringing the accused to trial before a petty jury. See “grand jury” and “petty jury” in Glossary. A draft bill would be drawn up, with all its arcane verbiage, in advance, possibly by the clerk of the court but probably by Recorder Thom, and it would then be presented to the grand jury for its approval. Although the extreme legalism of the language was based on forms found in books like Richard Burn’s Justice of the Peace, Thom seemed to enjoy pushing this ritualistic art form to its outer limits (see, for example, the bills in the Capenesseweet case, vol. 2, 17). If, after considering the evidence, the grand jury decided that a prosecution was warranted, and it agreed with the language of the draft bill, it would formally present the approved document to the court as a “true bill.” At this point in the proceedings, before approval by the grand jury, the document was referred to as a “bill” rather than a “true bill.” 35 The victim was referred to by the same name as the accused, with the addition of the words “his wife.” The court often did not give distinctive individual names to Indian wives. But see the reference to “Petapit, wife of Sakutchywais” in vol. 2, 33. 36 At the location of the present St Andrew’s Locks. 37 “No, No” in Ojibwa. 38 The odd positioning of the witness’s final statement, after the normal concluding affirmation, was probably a consequence of the clerk’s having initially overlooked transcribing it from his rough notes to this “fair copy” of the court records. 39 Dr John Bunn was a member of the court that day. Whether he returned to the bench after giving evidence is not known, but it was not uncommon for a member of the court to testify and then return to the bench. 40 The relevant law was set out quite clearly in section 34 of the Laws of Assiniboia, adopted by the Council of Assiniboia on 25 June 1841: “Whoever may have made, or used, any hole in the ice of either river or any creek, whether down to the water or not, shall fix and keep fixed a pole of at least six feet above the surface, according to possibility in the middle or at the edge of the same, under the penalty of being answerable for all damages that may be estimated in money. Provided, however, that any person who may wantonly remove or throw down or lower the said pole without the consent or knowledge of any one of the persons bound to fix and keep fixed the same shall, during the first twenty four hours after his offence, be held alone answerable for all damages, and afterwards, during the whole season, no less liable than one of the original parties, who may have made or used the hole aforesaid” (Oliver 1914, 302). 41 The General Quarterly Court normally met on the third Thursdays of February, May, August, and November. This session was “special” in two senses. It was, in the first place, additional to the regular August session, which had

Notes to pages 16–19

723

been held two weeks earlier. It was also special because the case with which it dealt was of unusually great public significance to the Red River Settlement. 42 This date is erroneous. The evidence clearly established that the shooting took place on Sunday, 31 August. That date fell on a Sunday in 1845, but not in the preceding or succeeding years. The report says that the killings occurred “in the ninth year of the reign of our Sovereign Victoria,” which was in 1845. Ross (1856, 332) tells us that the shot was fired on 31 August, and that the trial took place on “[t]he fourth day after the murder was committed.” The trial must therefore have been held on 4 September (a Thursday, the customary day of the week for General Quarterly Court hearings) rather than on 4 August. Governor Alexander Christie confirmed the correct date in a letter to George Simpson. Christie to London, 20 September 1845, AM: MG2, B4–10, fo. 56–63. See also the Commentary discussion below related to the date of Capenesseweet’s hanging. 43 See Gibson (2010b). 44 It will be recalled that the previous grand jury (vol. 2, 9) numbered twentythree. This one had only seventeen members, probably because that was all Sheriff Ross was able to assemble in the time available. The size of grand juries was not cast in stone, either at Red River or in other jurisdictions, although it was always more than twelve and less than twenty-four. 45 Specifying the value of the weapon in question was a hangover from an ancient common law rule called “deodand,” which provided for an object or animal that caused someone’s death, or the value of that object or animal, to be forfeit to the Crown or to others, such as the victim’s family, to whom the Crown might choose to award it. The practice was often criticized and was eventually abolished after someone attempted to apply it to a locomotive, but it remained a part of English law when this case was tried (see Walker 1980, 351). Although there is no indication that deodand was invoked in this or any other Red River case, the judicial fixation on the value of deadly weapons had its origins in that practice. 46 Also spelled “Apetwaywetung,” and with or without variously placed hyphens, in the record. 47 The outrageous linguistic complexity of this bill of indictment was probably the product of Adam Thom’s rococo mind. While convoluted legalese was common to nineteenth-century legal documents and procedures, it would be difficult to conceive of language more ludicrous than this. No wonder Sheriff Ross (1856, 223) complained that Thom’s arrival at Red River had caused “the simple honesty which marked our proceedings hitherto” to be replaced with “the quibbles and technicalities of law, which few but the lawyers themselves comprehend.” It is interesting, in light of Ross’s comment, to compare this document to the very much simpler and clearer indictment prepared for the Heckenberger infanticide case (case 93a, vol. 2, 191) by nonlawyers in 1852, shortly after Thom left the bench.

724 48

49

50

51

52

53

54

55

Notes to pages 19–21 At this point, although the record fails to mention it, the accused would have been asked to plead guilty or not guilty. A subsequent report on the trial by Recorder Thom states that an initial guilty plea was refused by Thom because “he could not possibly apprehend our legal distinction between one species of homicide and another.” Thom to Christie, 15 September 1845, HBCA: A.11/95, fo. 94ff. The Holy Evangelists are the Gospels of Matthew, Mark, Luke, and John, books of the New Testament in which some Christians placed special significance, and upon which they insisted on swearing, often by placing their hands on the text to constitute what was known as the “corporal oath.” Ross (1856, 330) says of this group, the second party of Sioux to visit Red River in friendship that summer, “After a welcome reception, and a few hours passed at the Fort, their curiosity was excited by the Roman Catholic cathedral on the opposite side of the river, and they crossed over to see it. During this brief interval, a considerable number of Saulteaux gathered round the Fort, as is usual on the arrival of strangers.” According to Ross (ibid., 331), confusion reigned at this point, during which “the Sioux were lodged safe in the Fort,” and “[t]he Saulteaux fled.” There is some ambiguity here as to whether the gun examined was that of Capenesseweet or of his brother. The better view seems to be that it was Capenesseweet’s weapon, but the claim of John McLaughlin years later that this witness initially pointed the finger at someone else (see Commentary) derives some slight support from the other hypothesis. Note Cuthbert Grant’s insistence that Capenesseweet be captured. Grant was the “Warden of the Plains” (a sheriff-like position), as well as a magistrate. He was also one of the chief architects of a Sioux-Halfbreed peace accord that the shooting endangered. See Commentary to this case. This is the first instance noted in the court records of an Indian giving testimony, as opposed to making a statement as a party, before the General Quarterly Court. It was clearly not the first time it had happened, however. The minutes of the Council of Assiniboia for 2 February 1837 contained the following entry: “Several objections having been made by many of the colonists to the validity of Indian evidence; it is resolved ... that the evidence of an Indian be considered valid, and be admitted as such in all courts of this Settlement” (Oliver 1914, 278). The council said nothing, however, about the form of oath or other solemnity to be administered to such witnesses. The court’s treatment of Rayome shows that it adopted, in the case of an Indian who was not a Christian, an approach similar to that used by other courts with respect to testimony by unbaptized Aboriginals, as well as by children. Terre Qui Brûle (Burning Earth or Burnt Earth) was one of the foremost of the Sioux chiefs, at least in this part of the continent. He was the first sig-

Notes to pages 22–4

56

57 58 59 60 61 62 63 64 65

66

67

725

natory of the communications that had resulted in the recent Aboriginal peace accord (see Commentary), and his presence at the head of the Sioux visitors to Red River must have intensified the settlement’s concerns about possible retaliation for the shooting. As has been noted elsewhere, it was not uncommon for members of the court to step into the witness box, testify, and then return to the bench. See, for example, Foss v. Pelly & Davidson, case 77, vol. 2, 136. In the present case, Sheriff-Magistrate Ross gave his evidence to both the grand jury and the petty jury. That evidence differed somewhat from the account of Capenesseweet’s confession that Ross would later give in his book The Red River Settlement (1856, 331): “On being questioned, he coolly answered, ‘The Sioux killed my brother, and wounded myself, last year. From that moment I vowed revenge, and that revenge I have now taken, and am satisfied. Do with me ... what you like.’” See also Commentary. See the note at page 16 concerning an error in the court record as to dates. See also Gibson (2010b). See Ross (1856, 324–32); MacLeod and Morton (1963, 122–9); and Christie to London, 20 September, 1845, AM: MG2, B4–10, fo. 56ff. Christie to London, 20 September 1845, AM: MG2, B4–10, fo. 56ff. The latter expression comes from Adam Thom’s report on the trial. Thom to Christie, 15 September 1845, HBCA: A.11/95, fo. 94–7. Christie to London, 20 September 1845, AM: MG2, B4–10, fo. 56ff. Thom to Christie, 15 September 1845, HBCA: A.11/95, fo. 94–7. It was also considered to permit Indian bands to deal with their own purely internal justice issues, even to the extent of punishing by death, with impunity from non-Aboriginal law. In August 1844 Simpson wrote to London explaining that recent low productivity from the Abitibi post had been caused by the reaction of local Indians to the murder of eight of their number. However, he assured his superiors, the problem had been solved: “[T]he sole actor in this tragedy was a female of unsound mind, a member of the family, whose destruction by some of her relatives restored tranquility.” Simpson to London, 8 August 1844, HBCA: A.12/2, fo. 435. See also Fraser to Simpson, 4 March 1844, HBCA: A.12/2, fo. 296b (enclosure). Thom’s reasoning concerning the “object” of the crime was not cogent. While an Indian who attacked a non-Aboriginal on the prairie could be said to have the object of committing a crime on one of the “paramount nationality,” the object in this case was to kill an Indian. Thom’s tortured assessment of the odds of hitting a settler in that situation was really just a reiteration of the “locality” exception. See the note at page 9 concerning Thom’s grand jury charge in case 4, the Keetchepewaipas prosecution.

726 68

69 70 71 72 73 74 75 76

77 78

79 80

81

82 83

84 85 86 87

88 89 90

Notes to pages 24–32 The impact on the accused was very different, however. Only one of the noncommissioned US soldiers who did the killing was charged, and although he was convicted, he served only four and a half months of imprisonment. The one officer who was charged was acquitted on the facts. Thom to Christie, 15 September 1845, HBCA: A.11/95, fo. 94–7. Christie to London, 20 September 1845, AM: MG2, B4–10, fo. 56ff. Ross (1856, 332). Bunn to Simpson, 30 December 1845, HBCA: D.5/14, fo. 539. Report of Select Committee, House of Commons (UK), 1857, Q. 5025–6, Q. 5519–20 (hereafter Select Committee Report). Ibid., Q. 5519–20. See, for example, Bumsted (2003b, 85). See, for example, the Henley House murder trial and execution at Albany in 1755 (vol. 1, 11). An 1812 legal opinion from London barrister William Cruise confirmed that the HBC charter authorized the infliction of capital punishment. Opinion of William Cruise, 22 February 1812, HBCA: A.39/2, fo. 87ff. 1 & 2 Geo. IV, c. 66. Their creation was initially postponed by the British government – see Bathurst to Berens, 31 May 1822 (Oliver 1914, 221) – and was never proceeded with subsequently. Section 14. An allegation to the contrary by John McLaughlin in evidence to the 1857 Select Committee of the British House of Commons on the Hudson’s Bay Company is difficult to reconcile with the court record. Select Committee Report, 280, Q. 5029. Governor Pelly’s 1824 failure to punish an Indian man for killing an Indian woman by scalping seems either to have involved a trial adjourned for want of jurisdiction or no trial at all. See vol. 1, 30. See Gibson (1990a). The document is a “bill of exchange.” See Glossary and Commentary to this case. The Hughes and McNab signatures are by crosses, indicating illiteracy. Such signatures are legally valid if satisfactorily proved. Select Committee Report, Q. 4969–73. Simpson to Smith, 26 September 1845, HBCA: D.4/33, fo. 53–4. Select Committee Report, Q. 4812. Ibid., Q. 4818–21. This witness was hostile to the Hudson’s Bay Company, and his evidence was quite adversarial in places. His description of this sequence of events, however, was not challenged by either cross-examination or contrary evidence. Hudson’s Bay Company v. Sayer, case 68, vol. 2, 113. Also spelled “Newkesekquaiskik” in the record. See “deodand” in Glossary.

Notes to pages 34–43 91 92 93

94 95 96 97 98 99 100 101 102

103

104

105 106 107 108

109

110

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Nolin was a member of the jury. Why Mowat does not seem to have been sworn is not explained. As with Mowat, there is no indication that the witness was sworn or, if not a Christian, made to promise to testify truthfully. These are probably just careless oversights on the clerk’s part. See, for example, the November 1846 session of the General Court (vol. 2, 49ff.), at which every case – six in all – involved providing liquor to Indians. Oliver (1914, 300, nos 24–7). Ibid., 321–3. Peel (1974, 1). Oliver (1914, 306, no. 58). Ibid., 326. See “deodand” in Glossary. Oliver (1914, 322, no. 18). See also Commentary to Public Interest v. Anderson, case 9, vol. 2, 35. See vol. 1, 88ff. This must have been an uncomfortable assignment for Cuthbert Grant, several of whose Halfbreed followers and friends engaged in free trade. He nevertheless did his duty (MacLeod and Morton 1963, 132–3). Journal of Peter Garrioch, AM: MG2, C38, 9 April 1845. Subsequent references to the same source are to the entries for 14 June 1845, 27 January 1846, 29–30 January 1846, and 19 February 1846, respectively. Hayden had openly threatened to shoot anyone who attempted to seize his furs. Thom to Simpson (“Private”), 27 March 1845, HBCA: D.5/13, fo. 343ff. Cases 40 to 43, vol. 2, 68ff. See Commentary. “Criminal conversation.” See Glossary and Commentary to this case. John Black, to whom Magistrate Bird’s letter was addressed, was clerk of the court at this point. He would be appointed “Chairman” (de facto recorder) years later. James Bird, a justice of the peace and probably the president of the petty court in his area, seems to have been approached initially about the complaint, and to have decided, after examining Mrs Folster, that the allegation was serious enough to be heard by the General Court. Justices of the peace had the authority to commit accused persons for trial in superior courts. Proceeding in that manner was an alternative to convening a grand jury. Today we would call the procedure a “preliminary hearing.” This date is likely erroneous. The opening sentence of Justice of the Peace Bird’s report indicates that it was submitted shortly before the court sitting rather than more than a year in advance. The report was therefore probably written on 13 May 1846.

728 111 112 113

114 115 116 117

118

119 120 121 122 123 124 125 126

127

128

Notes to pages 43–50 There is no “X” after John Folster’s name, probably signifying that he signed in full. The significance of the initial “M” is not known. Although a marriage certificate would have been crucial evidence in a civil suit for criminal conversation, it would not be relevant to a charge of rape or assault. See Commentary. Blackstone (1766, vol. 4, 64), quoted in Boorstin (1941, 37). See Backhouse (1983, 1991). In 1847 a similar situation faced the court in Public Interest v. Hogan, case 35, vol. 2, 59. See Commentary to that case. Ibid. Although the sale of beer and wine was prohibited only to Indians, the sale of whiskey and other “ardent spirits,” without a licence, was absolutely prohibited. See Public Interest v. McDermot, case 18, vol. 2, 46. Although the sale of beer and wine was prohibited only to Indians, the sale, and even possession, of whiskey and other “ardent spirits,” without a licence, was absolutely prohibited. See Public Interest v. Logan, case 14, vol. 2, 45. Oliver (1914, 291, no. 23). Ibid., 324–5, no. 27. Ibid., 323. Ibid., 324, nos 24, 25. Christie to Simpson, 1 April 1846, AM: MG2, B4–10, fo. 70ff. Emphasis added. See the whiskey-related 1847 prosecutions of free trader Peter Hayden (cases 40 to 43, vol. 2, 68ff.). The absence of the usual court hearing in August was probably attributable to the epidemic that was raging in the settlement at the time. See vol. 1, 92. The Council of Assiniboia did not meet between June 1845 and January 1847 (Oliver 1914, 317–27), although the epidemic was certainly not the sole reason for that. This session of the court is somewhat noteworthy because every case involved providing liquor to Indians. For a summary of the applicable Laws of Assiniboia, see Commentary to Public Interest v. Anderson, case 9, vol. 2, 35ff. This case is another instance of an accused person being tried and convicted in absentia. For an earlier example, see Public Interest v. McDermot, case 18, vol. 2, 46. Since spouses were not vicariously liable for the crimes of their wives or husbands, it is not clear why the accused’s husband was named here and in the following case. Perhaps it was hoped that the evidence would implicate Mr McDonald as an accomplice. Or maybe the case title simply reflected a wellknown division of labour in some families: wives bootlegging while their husbands followed other gainful pursuits. Mr McDonald was not convicted or punished in this case, although he undertook to pay his wife’s fine in the next case. See also note to case 23, vol. 2, 51.

Notes to pages 51–5 129 130 131 132

133

134 135

136

137

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Here, and in the next case, the named husband was included in the court’s order. See note to case 21, vol. 2, 50. Spelled “Camesash” in the record but “Comesash” in case 22. A common spelling of “Bréland.” Pascal Bréland was a prominent French Halfbreed leader. The register was established in 1825, during the Assiniboia governorship of Robert P. Pelly. See vol. 1, 29. This is the first reference to it in the surviving court records. The Selkirk Treaty was entered into between Lord Selkirk and local Indian chiefs in 1818. See vol. 1, 7 and Morris (1880, 9–12, 299–300). Although treated as an extinguishment of Aboriginal title by Selkirk and the HBC, this treaty would later be alleged by Indian and Halfbreed advocates to have been a mere lease – and one that was not consistently honoured by the tenants, at that. Its validity or meaning does not seem to have been challenged in this case, however. Whatever its legal force might have been, the Selkirk Treaty would eventually be supplanted in 1871 by new treaties (ibid., 43, 313–20). See vol. 1, 304. No valid legal basis for this case suggests itself easily. There was a tort called seduction by which an employer could sue a man who impregnated his or her domestic servant for compensation for the loss of the woman’s services during her confinement, but there was no known pregnancy here. Brown seems to have trespassed in the Birds’ home, which would certainly have been be a tort, but the only sanction awarded here – a bond to keep the peace – was a device of criminal, not civil, law – and trespass was not a crime. Robert Clouston was a fur trader, born in the Orkney Islands, who retired to Red River in 1828 after a career with the Hudson’s Bay Company. He had apparently charged a fee for exploiting his Orkney contacts to recruit Jane Mowat as a servant for the Birds. Captain David Herd commanded HBC ships plying the route between Great Britain and York Factory for many years. A sense of his salty personality seeps out of his testimony to the 1857 Select Committee of the British House of Commons on the Hudson’s Bay Company. Select Committee Report, 255–8, Q. 4566–4650. At the time Jane Mowat was a passenger in his ship in 1845, he had sailed the route for some eleven years, six as captain. “Steerage” referred to the part of a ship – usually below decks, and often providing minimal comfort or privacy – where passengers with the least expensive fares were accommodated. Why an “additional” fee, almost as large as the basic fare for passage and payable to the captain personally, should have been charged is not clear. Perhaps the ship, which was primarily a cargo carrier, did not normally provide other than cabin accommodation for passengers.

730 138

139

140

141 142

143 144 145 146 147

148

149 150 151 152 153 154 155

Notes to pages 55–64 Edward Mowat was another Orkney-born retired HBC fur trader. After settling at Red River in 1833, he ran a York boat freighting operation between York Factory and Red River. He was apparently engaged to bring Jane Mowat to Red River in 1845. Despite their having the same surname, no personal connection between the two is known. The jury was probably charged by Recorder Adam Thom, whose own harsh treatment of a female domestic had been demonstrated in 1843 in Rothney v. Thom. See vol. 1, 72. A letter suffix to a case number signifies that the case came before the court on more than one occasion. The suffix “a” indicates that this was the first hearing for this case, which was the first one in which the court involved itself in matters of inheritance and guardianship. Subsequent hearings occurred in November 1848 (case 29b, vol. 2, 95) and February 1849 (case 29c, vol. 2, 97). See Commentary following the 1848 hearing for an explanation of the proceedings. The matter did not come back to the court until November 1848 (vol. 2, 95). Malt is an ingredient used in the manufacture of whiskey and beer. Selling it to Indians was prohibited in June 1844 by the Council of Assiniboia (Oliver 1914, 312, no. 8). Its unauthorized possession by anyone, Indian or not, was prohibited by the 1845 regulations (ibid., 323–4, no. 23). For a summary of the prohibitions, see Public Interest v. McDermot, case 18, vol. 2, 46. The tort alleged here was assault and battery. Alexander Dahl had been imprisoned the previous year for sexually violating a woman (vol. 2, 42). See Commentary. On this form of oath, see note to vol. 2, 19. The evidence of soldiers’ comings and goings at the complainant’s father’s house seems to have been intended to suggest that it was an abode of ill repute. Thom’s report dismissed that suggestion, so far as the complainant was concerned, pointing out that “her sister was a far more constant inmate than herself.” Recorder Thom’s report on the case reveals that although the assault occurred in broad daylight, the location was “half a mile to the nearest house.” Thom to Christie, 26 August 1847, HBCA: D.5/20, fo. 220ff. Barrel maker. See Glossary. Thom to Christie, 26 August 1847, HBCA: D.5/20, fo. 220ff. The first recorded appearance of an agent in a civil case would occur in February 1848 in Turcotte v. Galerneau & Dunord, case 45, vol. 2, 72. Black to Simpson, 17 April 1845, HBCA: D.5/13, fo. 435–6. See vol. 1, 100. At one point, for example, Thom observed that the evidence of Margaret Cramer’s menstrual blood on Hogan’s clothes proved only that

Notes to pages 64–72

156 157 158

159 160 161 162 163 164 165

166

167 168

169 170 171 172 173 174 175 176

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her “story ... was not altogether a fiction.” His report also mentions that, in relation to the evidence of her visits to the barracks, Thom scolded the complainant that her “presence could hardly fail, however unintentionally on her part, to operate as an advertisement or invitation.” Thom to Christie, 26 August 1847, HBCA: D.5/20, fo. 220ff. See the earlier discussion of this question in Commentary to Public Interest v. Dahl, case 13, vol. 2, 44ff. As in the Beardie case in 1839 (see vol. 1, 60), Thom did not seem to accept the idea, commonplace today, that a particular line of behaviour might include more than one crime. See vol. 1, 67. See case 68, vol. 2, 113, for example. Oliver (1914, 298–9). The latter date would be changed to 31 August in the 1852 consolidation. The term “farther” suggests that the convicted man had already been in custody since his arrest. A soft silk material. Then, as now, the term “prosecute” was most commonly used to refer to proceeding with a criminal charge. Here, however, it meant pursuing a civil claim. Similar uses of “prosecute” and “prosecution” frequently occur again in the court records. Husbands sued on behalf of their wives in civil cases. “At common law ... husband and wife were [in civil matters] one person in law, the legal personality of the wife being submerged in that of the husband” (Walker 1980, 810–11). That legal situation would not begin to change in England for another decade. The failure to list the jury members may be attributable to oversight by the new court clerk. There was, at one time, a prohibition against selling less than a gallon of whiskey at a time, presumably because selling in smaller quantities made it more likely that the spirits would be consumed immediately, thus contributing to public drunkenness. That law had since been altered, but Hayden did not seem to realize the fact. See Commentary. Oliver (1914, 291, no. 23). Ibid., 324–5, nos 26–7. Ibid., 328, 2. Ibid., 330–1. Ibid., 332–3. Case 10, vol. 2, 37. Also spelled “Galarneau” in the record. In his proposed, but never officially adopted, Civil Code for Rupert’s Land (HBCA: E.16/1, fo. 1), Adam Thom included a section entitled “Admission of Substitutes,” in which it was provided, among other things, that

732

Notes to pages 72–7

“[t]he parties shall personally appear face to face, provided, however, that in the event of sickness or of non-residence, to be established by sworn evidence to the satisfaction of the Court, they may send substitutes duly authorized to bind them” (no. 29). There is no indication in the court record as to why the plaintiff did not appear in person here – and no indication that “sworn evidence” was offered in support of the substitution. In later years, it became common for family members, friends, and other third parties to appear as “agents” (witnesses and/or advocates) on behalf of parties to civil litigation. This is the first recorded appearance of such an agent in a Red River civil case, although an army officer represented a soldier prosecuted for assault with intent to rape in Public Interest v. Hogan, case 35, vol. 2, 59. 177 The property in question was on an island. 178 The rather small award may signify that the court was less than completely sympathetic to the plaintiff’s claim; but it was likely just a recognition of the fact that Turcotte had the benefit of the defendants’ having cut his wood for him. Whether the lack of reference to costs is similarly explained, or was just a clerical omission, is not known. 179 It was common to use the same jury for all cases heard the same day. The reason for a complete change of jury here was probably that the testimony in Turcotte had been given in French, whereas it would be in English in this case. 180 Note that this action, like case 39, vol. 2, 67, was brought by the husband, not by the victim herself. “At common law ... husband and wife were [in civil matters] one person in law, the legal personality of the wife being submerged in that of the husband” (Walker 1980, 810–11). That legal situation would not begin to change in England for another decade. 181 In modern litigation this turning of the tables would require the defendant to have filed a counterclaim in advance, but Red River’s procedural rules were not that sophisticated. 182 Why this unusual title was chosen on this occasion can only be guessed at. The General Quarterly Court of Assiniboia was, of course, simply the Assiniboia governor and council in their judicial mode, whether or not it was so called. Recorder Adam Thom might have entertained some doubt as to whether a strictly Assiniboia court could exert jurisdiction over a matter that occurred in a remote region far beyond Assiniboia’s bounds; but if that was a valid concern, the case ought to have been tried by the Rupert’s Land governor and council. Thom was a member of both councils. In light of the HBC charter’s provision that allowed cases to be brought for trial before any local governor and council, however, no change of name was needed. 183 See related hearing, case 49b, May 1849, vol. 2, 118. 184 Since only one case was on the docket, and almost the entire session was given over to the reading of Thom’s legal opinion as to jurisdiction over that

Notes to pages 77–88

185

186

187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217

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case, it might not have seemed like an ordinary sitting. It was such, however, and it concluded with decisions by the entire court concerning both jurisdiction over and custody of the accused man. The unusual style of this report, coupled with the fact that most of it consisted of a first-person opinion by the recorder, suggests that Thom wrote the entire report. The facts of the case are outlined in a written deposition by witness Narcisse Papin. HBCA: A.11/95, fo. 232. Calder’s conveyance from Norway House to Red River was noted in Donald Ross to Governor Simpson (“Private”), 17 July 1848, ABC: Donald Ross Collection, file 178, Add. MSS 635, letter 13. His earlier arrival from the west, accompanied by his wife, had been noted in the Norway House Post Journal, [day and month unknown] 1848. See vol. 1, 66ff. HBCA: D.5/13, fo. 270ff., FC 3207.99, pamphlet Z8. See vol. 1, 60. Archer Martin, in Western Law Times 2 (1891): 24. See also Baker (1999). See vol. 1, 60. HBCA: E.16/1, fo. 79. HBCA: D.5/13, fo. 270ff., FC 3207.99, pamphlet Z8. HBCA: A.11/95, fo. 232ff. 43 Geo. II, c. 138. vol. 1, 14. Rich (1961, vol. 3, 401–31). See Appendix Memorandum re legal challenges. 1 & 2 Geo. IV, c. 66. Oliver (1914, 143). Ibid. Ibid., 144. Ibid., 143. Vol. 2, 78. Vol. 2, 79. Vol. 2, 77. Vol. 2, 78. Vol. 2, 79-80. Oliver (1914, 146). Vol. 2, 80. Ibid., 81. Oliver (1914, 149). Ibid., 150. Ibid. 3 & 4 Vict., c. 35. Vol. 2, 82. Ibid. Case 49b, vol. 2, 118. Simpson to London, 26 June 1850, HBCA: A.12/5, fo. 135ff.

734

Notes to pages 89–100

Chapter Two 1

For a fuller account of social, legal, and governmental circumstances during this period, see volume 1, chapter 6. 2 This is the first General Court session at which Major W.B. Caldwell, the incompetent new governor of Assiniboia, presided. It was also the first session at which William R. Smith’s participation as clerk of the court was expressly noted (vol. 2, 95). It was suggested earlier (Commentary, vol. 2, 63) that Smith may have begun his duties as clerk, on an acting basis, as early as the August 1847 session. There are enough stylistic differences in the records produced between then and November 1848, however, to also support the view that Smith did not begin until this session and that some unknown third person acted as clerk during the interregnum. 3 A distinctive grey colour. 4 Injuries known to have been caused by wild predators were common means of identifying livestock. Although “wolves” were most frequently blamed for such depredations, the animals in question were often, and were perhaps in this case, “prairie wolves” – commonly known today as “coyotes.” 5 Probably Stony Mountain. 6 Probably today’s Oak Hammock Marsh. 7 Case 252, vol. 2, 439. See also NW640304. 8 Case 58, vol. 2, 103. 9 This matter first came before the Court in February 1847 (vol. 2, 56) and would be considered again in February 1849 (vol. 2, 96). 10 At its next session, on 15 February 1849, the court ordered that this overpayment be repaid to Richard Smith. 11 The court was given legislative authority with respect to guardianship in August 1865 (Oliver 1914, 558; see case 300a, vol. 2, 473) and intestacy in November 1866 (ibid., 569; see case 370a, vol. 2, 521). 12 See previous proceedings (vol. 2, 56, 95). 13 See subsequent proceedings (vol. 2, 110). 14 Case 35, 19 August 1847, vol. 2, 59. Smith had apparently attended the trial. 15 Editor’s deletion: “that.” 16 The common law action for seduction was a variant of the employer’s right to sue someone who wrongfully injured his employee, with consequent loss to the employer of the employee’s services. A daughter living at home was presumed to provide domestic services to the family; and so if she became pregnant by an identifiable man outside the family, the father was entitled to sue for the value of the loss of her services during her confinement. See “seduction” in Glossary. 17 Strictly speaking, any claim for breach of promise to marry would be that of the daughter, not the father. Presumably, it was sued in the father’s name here because the daughter, likely a minor, lacked the legal capacity to

Notes to pages 102–8

18 19

20 21

22 23

24 25

26 27

28 29 30 31

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sue on her own behalf. The addition of that claim probably did not affect the material outcome of the case, but it might have been considered a socially acceptable explanation for the daughter’s agreeing to pre-marital intercourse. Wedding. In this context, wedding feast. Possibly “Merpion.” Neither the meaning of that word nor of “merssion” is clear. From the context, it was undoubtedly considered offensive – possibly a vulgar derivative of “merde.” “Polisson” meant “rascal,” or “scamp.” “Regina” (often abbreviated “R.”) is “Queen” in Latin, and is a common way to indicate that a case is a criminal prosecution. Prior to this, and after this as well prior to 1864, the prosecutor of Red River criminal cases was usually designated “Public Interest” (see Glossary). This first use of “Regina” coincided with the beginning of Major W.B. Caldwell’s governorship. This was an informer prosecution brought by George Dahll, who had been a defendant in a similar, though civil, case in November 1848 (case 51, vol. 2, 92). Strictly speaking, Caldwell’s power of remission (also called commutation and the prerogative of mercy) stemmed not from his role as president of the court but from his position as governor of Assiniboia. In creating that position, the Hudson’s Bay Company had modelled it on viceregal governorships of British Crown colonies, which offices possessed, among other powers and immunities, the royal prerogative power of mercy. That enabled governors to alter, ameliorate, or expunge penalties imposed by the courts. Caldwell could have forgiven Norquay completely had he chosen to do so. See “commutation” and “royal prerogative” in Glossary. At this point, informers shared in fines, a practice that was ended in 1852. See vol. 1, 46. The reason for the unusual absence of Sheriff Alexander Ross is not known. It is known that, on 6 March, Ross penned a list of complaints about the state of affairs in the settlement (HBCA: A.11/95, fo. 378, reel 184), and that he would later refuse to serve under Governor Caldwell. Whether civil or criminal, or both, is not clear. See next note and Commentary. If this was a civil case and the plaintiff really did give sworn testimony, it was the first instance noted in the court records of such an occurrence. See Commentary. The “round house” may have been one of the corner bastions of Upper Fort Garry. Probably the assaulted man himself. Note the reversion to “Public Welfare” rather than “Regina,” in contrast to cases 57 and 58. This was an entirely different jury than the one that heard Smith’s related assault allegations against George Welsh in the preceding case – a precaution required for reasons of procedural fairness.

736 32

33

34 35 36

37 38

39

40

Notes to pages 109–12 The offence in this case was the sale of spirits. It was permissible for a licensed publican to sell beer to non-Indians, but the sale of hard liquor by anyone other than the HBC was illegal. Why Smith, who does not appear to have been licensed, was not charged with selling beer as well as rum is not known. Informers were entitled to a refund of any money they had paid for liquor illegally sold to them, as well as to a share of the fine. The withdrawal of the case from the jury despite the unequivocal evidence of Howell is difficult to explain, except on the basis of an unwillingness to proceed solely on the uncorroborated evidence of an informer who stood to benefit from a conviction. The Laws of Assiniboia did require corroboration of the evidence of Indian informers (Oliver 1914, 321), and that approach might have been adopted generally in practice. Perhaps the fact that Howell had been instigated by the notorious William Smith played a role. In any event, the governor always had the discretion, as does a modern prosecuting authority, to stay a prosecution without giving reasons. A previous proceeding occurred in February 1849 (vol. 2, 96). There is no case 63. The nature of case 64 is unknown. “Compounded” in this context meant “agreed not to prosecute,” and the prosecution was accordingly compelled to pay conduct money (a per diem fee) and travel expenses to the witnesses it had summoned to appear. The nature of the charge and the reason it was withdrawn are not known. Christmas and New Year’s celebrations. Although the report uses the term “sworn,” it is likely that this witness gave unsworn testimony. The “custom usually adopted in this Court” in the case of unbaptized Indians was, as in the case of child witnesses, to ensure that they understood both the difference between truth and falsehood and the consequences of false testimony before pledging them to tell the truth. That is probably what happened here. Note that the usual concluding phrase “as the Deponent shall answer to God” was omitted. This conclusion is puzzling. It may point to a practice, unlikely to have been required by law, of restricting such prosecutions to offences occurring since the previous sitting of the court. But even so the evidence of the witness Grandbois claimed that Smith had sold him beer “sometime after Lent,” which was certainly subsequent to the court’s last session in February. Perhaps awareness that the informer was the plaintiff against the same defendant in the next case on the docket induced some skepticism on the part of the court. This case, in contrast to the previous one, was cast in the form of a civil claim by Ploofe against Smith. The style of cause indicates that the suit was commenced on behalf of Ploofe rather than of the “Public Interest,” and the report describes Ploofe as “Plaintiff.” Yet the fine of 5 shillings, which might have been an appropriate sum of damages to compensate Ploofe for having been temporarily deprived of the possession of his canoe, was strangely paid

Notes to pages 113–14

41

42 43

44 45

46

47

48 49 50

737

into the Public Fund, as if the case had been a criminal prosecution. Since informers of criminal conduct were sometimes given a share of fines, it is possible that Ploofe would have received partial payment in that manner. Since Louis Ploofe was very likely the son of Antoine Ploofe, the informer and plaintiff in the previous two cases, and George Anderson was a fellow Chelsea Pensioner and friend of William Smith, this case was probably related to the earlier ones. The conduct alleged here amounted to assault in the pure sense (without accompanying battery). See “assault and battery” in Glossary. Since Louis Ploofe is referred to by other witnesses as a “boy,” and there is no reference at the end of his testimony to his having to “answer to God,” it is probable that he was not actually “sworn,” but instead testified on the basis of a promise to tell the truth, as was customary in the case of underage witnesses. “Police bugger.” Although, as in the immediately preceding case, this proceeding took a civil form, it appears to have been treated as a criminal prosecution, the penalty being payable to the Public Fund. The court’s oversight in not specifying the costs (“expences”), as it usually did and had done in the previous case – along with its other confusing responses in earlier cases – might have been the result of distraction attributable to its extraordinary situation that morning: it was surrounded by hordes of angry armed Canadians and Halfbreeds, attracted by the case to be heard next. Sayer, a French Halfbreed, was a small-time petty trader charged with having traded in furs. His case was one of four similar charges on the docket that day. Although the style of cause of the case – HBC v. Sayer rather than Public Interest (or Public Welfare) v. Sayer – might suggest that it was civil litigation, it seems to have been a criminal charge privately prosecuted. Sayer had been jailed at first, but subsequently released on bail. The line between civil and criminal litigation was not as sharply drawn as in later times. Sayer had been imprisoned initially, but he, along with three co-accused, was free on bail, and was being protected by an armed crowd outside the courthouse. For the circumstances of this assembly, see Commentary. The delegation numbered twelve in all. For the contents and fate of the “paper,” see vol. 1, 116. Garrioch’s description of Thom’s response was more colourful: “The Governor read the document, and handed it to Mr. Thom. Mr. Thom refused to acknowledge the deputation, and made a long, fierce, elaborate, and bombastic sort of an address, of about one hour’s duration, speaking in the most fearless sort of manner, and winding up in a climax of tears.” Anonymous letter (probably from Peter Garrioch) to editor, Morning Chronicle (London), published 3 October 1849, HBCA: A.71/8, fo. 24–9.

738 51 52 53

54

55

56

57

58

Notes to pages 114–15 Times (London), 19 August 1848. Perhaps it was at this point that the tears Peter Garrioch mentioned appeared. Garrioch described the circumstances of the withdrawal, the duration of the “considerable time” referred to in the court record, and the intense deliberations that occurred during that time: “Dr. Bunn asked the only reasonable question: ‘What do you intend to do in the case of a conviction? Do you intend to resist the judgement of the Court?’ The delegates were unable to answer, and adjourned to the main body, who were anxiously awaiting them at a distance from the courthouse. Four or five hours elapsed before the people would come to any terms. A guard was stationed round Sere [Sayer], and they refused to allow him to stand his trial. After the greatest difficulty, Mr. Sinclair and myself prevailed upon them to let the law take its course – but with this proviso: that if he was imprisoned, they would set fire to the gaol and take him out. We had great difficulty in allaying them; and I assure you: had it not been for Sinclair’s and my exertions there would have happened such another affair as that of 1816, when Governor Semple was killed.” Anonymous letter cited at note 50. Those retained from the previous jury were Gunn, Tait, Lavallé, Vincent, Sandison, Thomas, and Monkman; those rejected were Dease, Mowat, Sinclair, Murray, and McBeath. The rejected jurors were replaced by Marion, Bruneau, Kennedy, and the two Ducharmes. The defendant’s son. Ross (1856, 382) commented about his testimony, “In addition to the ... Defendant’s own voluntary confession – a confession not sufficiently circumstantial to have convicted him by itself – the only evidence was that of the Defendant’s son, who, under the stern injunction of one parent, told the truth, without any attempt at delay or equivocation, against the other ... In what court of England or Scotland could the moral beauty of this scene have been surpassed?” Louison Sayer was no child of tender years: he was old enough, less than two years later, to be sued for breach of a contract to serve as a tripman on the York Factory route (case 83, February 1851, vol. 2, 178). Alexé Goullet was a petty trader who had been previously suspected of, and interrogated by, Sheriff Alexander Ross about violations of the HBC monopoly. He may also have been one of Sayer’s three co-accused, who had that surname. Some Halfbreeds, apparently including Sayer, produced salt from deposits and saline springs found along the west shore of Lake Winnipegosis. In 1861 the General Court heard a manslaughter case arising from a dispute over salt production equipment (The Queen v. Chartrain, case 211, vol. 2, 331). Prosecutor John Ballenden’s unsworn statement refuting Sayer’s interjection would not be permitted in a modern court but was not unusual in this court. The jury seems to have believed Sayer in any event.

Notes to pages 116–18 59

60 61

62 63

64

65 66 67 68

69

70 71

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The other three defendants were named McGillis, Laronde, and Goulet. The furs in question, which had been seized at the time of arrest, were also returned. Simpson to Shepherd (“Confidential”), 27 September 1856, HBCA: A.7/2, fo. 41ff. See also vol. 1, 114ff. Caldwell to Pelly, 21 March 1850, HBCA: A.11/95, fo. 318; Simpson to Shepherd (“Confidential”), 27 September 1856, HBCA: A.7/2, fo. 41ff.; Report of Select Committee, House of Commons (UK), 1857, Q. 5593. Stubbs (1967, 26). Alexander Ross, unpublished manuscript, ABC: Donald Ross Collection, Add. MSS 635, roll 1, ser. 4422, file 141, letter 24. This is one of two accounts of the trial left by Ross. The other is in Ross (1856, 372–7). The latter appears to have been based on the former, and there are no significant discrepancies between them. Each, however, contains details not in the other. For other accounts, see Rich (1956, lxxxiii-lxxxvi); Caldwell to London, 2 August 1849, HBCA: A.11/95, fo. 253–4; Caldwell to Simpson, 2 August 1849, HBCA: D.5/25, fo. 434–5; and Caldwell to Pelly, 21 March 1850, HBCA: A.11/95, fo. 318. Ross (1856, 373). Someone reported that the crowd possessed 377 firearms in all (ibid., 374); Ross estimated the number of armed rioters to be 327 in ABC: Donald Ross Collection, Add. MSS 635, roll 1, ser. 4422, file 141, letter 24. Anonymous letter cited at note 50. Ross (1856, 373). Garrioch confirmed that rumour. Anonymous letter cited at note 50. Caldwell to London, 2 August 1849, HBCA: A.11/95, fo. 253–4. In a later letter to HBC governor Pelly in response to criticism from London for not taking a stronger stand, Caldwell pointed out that “the society of Red River Settlement is very different from that of England” in that “every man carries firearms, and is expert in using them.” Having succeeded “to maintain the peace without bloodshed,” he had expected “commendation for abstaining from coercive measures” since “I have ever found that the civil power desires to adopt mild in preference to harsh measures.” Caldwell to Pelly, 21 March 1850, HBCA: A.11/95, fo. 318. ABC: Donald Ross Collection, Add. MSS 635, roll 1, ser. 4422, file 141, letter 24: Caldwell to London, 28 November 1849, HBCA: A.11/95, fo. 213 (2nd such folio). Lewis Bruce was subsequently injured in a shooting accident while assisting Sheriff Ross to put down Indian unrest. Governor Caldwell’s gloating reaction was “Does it not look like a just retribution?” (ibid.). ABC: Donald Ross Collection, Add. MSS 635, roll 1, ser. 4422, file 141, letter 24. Anonymous letter cited at note 50.

740 72

73

74 75 76 77 78 79

80 81

82

83

Notes to pages 118–22 It is difficult not to wonder whether the compromise was really as spontaneous as the court record makes it seem. Might it not have been worked out in advance behind the scenes in quiet discussions involving Ballenden, Ross, Sinclair, and jury foreman Donald Gunn? In one of his accounts, Alexander Ross referred to the proceedings as a “mock trial.” ABC: Donald Ross Collection, Add. MSS 635, roll 1, ser. 4422, file 141, letter 24. Ross (1856, 376). Ross identified the juror as Dominique Ducharme, who had worn his powder horn and shot pouch in the jury box. He also commented, pointedly, about both Ducharme and the second man to take up the chant, that “they are not Halfbreeds, but Canadians.” Ibid. It was not the first time that Ross had inferred that manifestations of French Halfbreed discontent were manipulated by Canadians. See, for example, Ross to Christie [?], 19 December 1844, AM: Ross Papers, MG2, C14, letter 11. Ballenden to London, 24 August 1849, HBCA: A.11/95, fo. 281. See also ibid., fo. 291. Governor and Committee to Simpson, 25 March 1850, HBCA: A.6/28, fo. 200ff. Simpson to Shepherd (“Confidential”), 27 September 1856, HBCA: A.7/2, fo. 41b. From vol. 2, 76. For the background to and unknown outcome of this proceeding, see case 49a, ibid., and related Commentary. J. Peter Pruden was a seventy-one-year-old retired fur trader who had been farming at Red River since 1837. Although he had been a member of the Council of Assiniboia for the past decade and had served as a grand or petty juror from time to time, he had not been a member of the General Court bench before this session. He would also sit as such at the November 1849 and February 1850 sessions but not thereafter, although he continued to be called on for jury service for some time to come. Presumably, this was not the same person as the defendant. This was the first sitting of the court after Recorder Adam Thom agreed to absent himself temporarily from the bench. In place of the recorder’s customary summing-up of the evidence and charge to the jury, which Governor Caldwell had let it be known he did not feel competent to do, the court substituted a simple reading of the clerk’s notes of the evidence – probably by Clerk Smith himself. The court does not seem to have awarded costs against the unsuccessful plaintiff, as it did, for instance, in the case of Mrs. Doherty v. Mrs. Anderson tried the same day. This may indicate that the court was sympathetic to Brown, who had innocently obtained a horse from Polson and had in turn innocently mistaken Macallum’s lost horse for his – an easy error to make when livestock was commonly pastured on the boundless prairie. The same pensioner George Anderson, comrade of pensioner William Smith, was met in cases 59, 66, and 67, vol. 2, 105, 112, 113.

Notes to pages 122–9 84 85

86 87

88

89

90 91 92 93 94 95

96

97

98 99

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The same troublesome pensioner William Smith was encountered in cases 59, 60, 61, 65, and 66, vol. 2, 105, 108, 109, 111, 112. Exclusion of intended witnesses from the courtroom before they have given their testimony, as a precaution against their being influenced by hearing the evidence of prior witnesses, was and is a practice in many courts. Commonly, however, it is not ordered unless requested by one party or the other, which seems also to have been the practice in this court. Sheriff Alexander Ross. Here, probably, was the motive for the assault: Doherty’s alleged involvement, as informer or witness, in the conviction of the Andersons’ son-in-law for some offence. Since Doherty was not shown as a witness in any existing General Court record prior to the attack, the conviction in question probably occurred in a petty court. This notion of a “fair fight” might also explain why Corporal (presumably a pensioner, not police) Rice, although “with Doherty,” remained “standing by” during the brawl. It tells us, too, something of the values of the rougher elements of Red River society. The evidence of case 71, vol. 2, 124, involving Doherty’s wife and the wife of Anderson’s buddy Smith, would probably have told us much about that as well, had it been recorded. Involving, as it does, the wife of the prosecutor in the previous case and a close friend of the accused in that case, who had herself been accused of scratching the prosecutor, this seems very likely to have been a sequel, which it is unfortunate that Clerk Smith did not record in greater detail. Fulling was a process of shrinking, and thereby thickening, woollen cloth by means of moisture, heat, and pressing. Coat. Some slaps. That is, that Charbonneau would have to fight him for it. That is, that Landré was not describing the coat from memory. Note the apparent blending of civil and criminal processes: a criminal fine tacked on to a civil award. Or was the “fine” actually compensation to be paid to the plaintiff? Although few, if any, common law jurisdictions now retain this antiquated form of legal liability, it was common at the time, and for a surprisingly long time thereafter, for the employer of a female servant who bore a child out of wedlock to sue the father of the child for having deprived the employer of the employee’s domestic services during her period of confinement. On the theory that unmarried daughters living with their parents also provided domestic services, the same principle applied to them. The defendant, who had the right to state his position in response to the plaintiff’s assertions at this point, appears to have stood silent, seemingly content to let the witnesses tell his story. Was her husband too drunk to help? The young woman in question.

742 100

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103 104 105 106

107

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Notes to pages 129–36 This was a rather extreme form of hearsay evidence: what a witness was told by someone else rather than what he or she learned directly by means of his or her unaided senses. See “hearsay evidence” in Glossary. Caldwell to Governor and Committee, 22 March 1850, HBCA: A.11/95, fo. 320–3. It is highly unlikely that Smith did anything on his own initiative, and although the suppressed record may well have been based on Smith’s original notes, the handwriting is different than that of the official record. It was Caldwell who sent the suppressed document to London; and it could have been he, at Thom’s insistence, who ordered the official record to be censored. Only he had the formal authority to do so. Although Alexander Ross, sitting in the audience, might certainly have written the longer account, he was probably not on sufficiently good terms with Caldwell to persuade the latter to send the unofficial version to London. That is, that the dispute, which had already become focused on personalities rather than on issues, would have degenerated further to a physical brawl. “Baculus” is Latin for “walking stick.” Caldwell to Pelly, 22 November 1850, HBCA: A.11/95, fo. 370. Thom to Caldwell, 18 February 1850, HBCA: A.11/95, fo. 324. Ibid. A modern reader might wonder why it was the husband, rather than the insulted wife, who was suing. Two explanations are possible. One is that the legal unity of spouses under the law of the time allowed husbands to sue on behalf of their wives. Married women were able to sue in tort on their own behalf, however, as the case of Mrs. Doherty v. Mrs. Anderson (case 71, vol. 2, 124) seemed to demonstrate. The other possibility is that the husband in this case considered it a slander to his own reputation to have it said that he had been cuckolded. The dramatic conclusion to this case, clearly the result of Bailey’s evidence for the defence, caught even the well-informed Alexander Ross off guard. As he was venting his anger among the courtroom spectators about the outcome of the previous case (Matheson v. Thom, case 75, vol. 2, 132), the governor called him to order, reminding him that there was another case – this one – to be heard. Ross disagreed at first, claiming that William Smith had already acknowledged his wrongdoing, and apparently expecting him to concede defeat. He had reckoned without Corporal Bailey. Caldwell to Governor and Committee, 22 March 1850, HBCA: A.11/95, fo. 320–3. Adam Thom contended that this record was incomplete, and that Caldwell’s seizure of the record book had prevented the omissions being remedied. Thom to Barclay, 26 August 1850, HBCA: A.11/95, fo. 331–2. He prepared a bench report, regrettably now lost, to supplement it. Some of the alleged omissions are known, however, and will be referred to, where appropriate, below. Thom’s presence on the bench for the first time since the Sayer trial in May 1849 was permitted by special arrangement with Louis Riel Sr on behalf of

Notes to pages 136–7

743

Red River’s French Halfbreeds. See evidence of Riel at page 153. There was nothing at stake in the case for Riel’s constituents, since no francophone was a party or, except for Riel himself and one servant of the Ballendens, even a witness. Riel and his people were, moreover, undoubtedly sympathetic to the plight of English Halfbreed Sarah Ballenden, whose alleged adultery with the plaintiff was central to the litigation – and to whom Thom was known to be sympathetic. Sir George Simpson, who was at Red River immediately prior to the trial, was disturbed about rumours that Thom was considering returning to the bench for the occasion, and his concerns were sharpened by Governor Caldwell’s warning that if this occurred his troops would not be able to quell a serious resulting eruption of violence. Thom having failed to show up for a meeting on the subject with Simpson the day the governor-in-chief was to leave the settlement, the concerned Simpson dictated a letter to the recorder “in great haste, just as I am preparing to step into the canoe,” reminding Thom that “feelings towards you as expressed ... by parties of all races in the Settlement” were, “without one exception, of the most hostile character” and that authorities “could not be answerable for your life.” The final decision, however, remained Thom’s: “It is for you to consider what course you will adopt in these circumstances; you have been fully warned.” Simpson to Thom, 3 July 1850, HBCA: D.4/42, fo. 27–8. Conceivably, the arrangement with Riel was reached after Simpson left. 110 See vol. 1, 120ff. 111 The plaintiff, Captain Christopher Foss, was the second-in-command of the contingent of Chelsea Pensioners – retired British soldiers – who had been brought to Red River by the Hudson’s Bay Company in 1848 to replace, on a part-time basis, the regular troops who had returned to England after the threat of war with the United States over Oregon had evaporated. He was a superficially charming fellow, upon whom some of the more staid settlers looked askance. 112 The lady in question was Sarah Ballenden, the beautiful and lively thirtytwo-year-old, mixed-blood wife of Chief Factor John Ballenden, and, as such, the hostess of the HBC mess – the communal eating facility at Upper Fort Garry. Foss was both a member of the mess and a personal friend of the Ballendens. 113 Augustus Edward Pelly was a young, recently married, Fort Garry accountant – a relative of HBC governor Sir John Henry Pelly. He and Foss had come out to Rupert’s Land on the same ship in 1848, had quarrelled over something at that time, and had remained at odds. Caldwell to J.H. Pelly, 6 August 1850, HBCA: A.11/95, fo. 329. 114 There is no evidence of the bench being divided on this motion. Although Bunn, Ross, and Grant seem, like Thom, to have been sympathetic to Sarah Ballenden and the plaintiff, Governor Caldwell – the president of the court – was clearly not. Yet Caldwell does not appear to have publicly

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Notes to pages 137–8 opposed Thom’s participation as recorder. He might, of course, have raised an unsuccessful objection with his bench mates in advance; and he probably encouraged Simpson in his above-mentioned attempt to dissuade Thom himself from participating. Caldwell was the first of several witnesses from the bench. Was he a witness for the plaintiff, whom he despised, or for the defendants, with whom he clearly sympathized? Plaintiffs’ witnesses normally precede those of defendants, but in this case the governor might possibly have appeared first as a matter of protocol, he being the senior official present. Probably, however, Caldwell was called by the plaintiff, and deliberately presented first. While a good deal of his testimony supported the defendants, he did provide important early evidence in support of the plaintiff’s claim by establishing that Pelly and others had made statements that, if false, would be defamatory of both Foss and Mrs Ballenden. This is all any plaintiff must initially establish in a defamation case. The question of whether the statements were true, and were therefore justifiable at law, was for the defendants to establish if they could. Having the first evidence that a defamatory statement was made by one of the defendants fall from the lips of the court’s president – a man known to be supportive of the defendants moreover – would be a sound strategy on behalf of the plaintiff. The direct examination of Caldwell and other witnesses called by the plaintiff was probably conducted by Adam Thom. Foss had the right to do so himself, but the court – primarily the recorder – regularly “interrogated” witnesses, either in addition to or in lieu of, shy or inarticulate parties. Foss would have been wise to leave the task to the much more experienced Thom, and the structure of the evidence and frequent third-party references to Foss suggest that he did so. This is hearsay testimony: evidence of what someone had told Caldwell rather than of what he had personally observed directly. It was the first of what would be very many hearsay allegations throughout the trial. Because of the inferior reliability of such evidence, it is often ruled inadmissible. Although that did not occur in this case, the evidence would likely have been given less weight by the jury than if it were direct. With respect to this particular statement, there was greater justification for presenting it to the court in hearsay form because the rules of procedure at the time prevented the parties – plaintiff Foss and defendants Pelly and Davidson – testifying on their own behalf. See “hearsay evidence” in Glossary. Catherine Weingart, apparently of Dutch origin and usually referred to as the “German girl” or “G. girl” in the record, was a maid of Sarah Ballenden. Much hearsay testimony was offered concerning her alleged revelations, but she had left the settlement, under disputed circumstances, before the trial. According to Adam Thom, Winegart was pregnant when she left. Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333. And there is a refer-

Notes to pages 138–43

118 119 120

121 122

123 124

125 126

127

128

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ence in a later letter of Dr Bunn’s to an “unhappy fatality” that “alone prevented ... [Pelly] from establishing [the truth],” which perhaps suggested that Winegart had died in childbirth after her departure. Thom to London, 11 January 1851, HBCA: A.11/95, fo. 413. John Davidson, a secondary defendant, was the cook of the Upper Fort Garry mess. A.G.B. Bannatyne, a later witness, was Ballenden’s nephew. According to Thom, Caldwell denied some aspects of his foregoing testimony during the second day of the trial, despite the clerk’s notes and “the recollection of all his colleagues.” The denial was so vigorous, Thom claimed, that “I was obliged, in the name of the Court, to command him to be silent, and make him, a Queen’s Major, silent accordingly.” Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333. This incident sheds important light on the relationship between the governor, upon whom the HBC charter bestowed the chairmanship of the court, and the recorder, who, if this account is accurate and representative, was the acknowledged final arbiter of courtroom proceedings. The sister of the Anglican bishop of Rupert’s Land. This was double hearsay with respect to the truth of the allegations. It was direct evidence, however, that the Pellys had been spreading the rumours, which was all the evidence that plaintiff Foss, who had called Miss Anderson, needed to prove his case in the first instance, subject to any defence the defendants might later establish. Chief Trader John Black’s wife. This was triple hearsay as to the truth of the rumours, but, as with Miss Anderson’s testimony, it was damning direct evidence that a defendant had defamed Sara Ballenden, and perhaps Foss by implication. The courtroom? It was often used for nonjudical purposes. This lady’s evidence seems to have troubled supporters of the plaintiff, since she gave rare direct evidence of possible impropriety. Although she appears to have been called as a witness for the plaintiff, her testimony was all in support of the defendants. Dr Bunn told her from the bench that “she was giving a great many insinuations but very few facts,” and Thom administered a similar admonition. Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333; Thom to Barclay, 26 August 1850, HBCA: A.11/95, fo. 331–2. Although the reports of these rebukes come from Thom, they are probably correct in substance. The nature and significance of this letter, later referred to as the “pemmican letter,” never became clear. Indeed, the significance of much of Bannatyne’s testimony is puzzling. This may suggest that in this case witnesses were not excluded from the courtroom during the testimony of previous witnesses, although it is possible that what this witness heard was from persons outside the courthouse.

746 129

130 131 132 133

134

135

136 137

138 139

Notes to pages 143–9 The Pellys’ decision to “leave the mess table” meant ceasing to take their meals in the communal company mess, presumably because of the alleged improprieties and/or Foss’s perceived insulting attitude toward Mrs Pelly. As noted earlier, the contents and significance of this letter were never established. The court clerk. The Davidsons’ wedding dinner. Foss had sued the Blacks in a separate action, and they had counterclaimed. That litigation was pending at the time of this trial, but was eventually dropped. What seems to have happened here was that, on the day after Thom’s interview with Sarah Ballenden, he and John Ballenden, accompanied by Logan as witness, travelled from the Lower Fort to the Upper, confronted Pelly and Davidson, and demanded that they submit to examination by Thom in his magisterial capacity (“a hearing of the matter”) concerning the allegations contained in the depositions they had made before Simpson. Perhaps dimly aware of the impropriety of his doing so rather than asking some other magistrate to do it, Thom insisted that his purpose was not to “interfere with the case now in the Court” but rather to “ease Mr. Ballenden’s mind.” Ballenden requested Thom to leave the room when the interrogation reached “one or two ... assertions” that would perhaps have related too closely to the pending litigation. Thom later acknowledged, however, that he had asked questions that Davidson refused to answer. There must have been at least three individual depositions. “No. 1” comprised the separate statements of Pelly and Davidson to Simpson, and “No. 2” included whatever evidence the Thom “hearing” produced. None of them appears to have survived. John Ballenden appears to have continued the confrontation after Thom left the room. Although the statement from the end of the internal quotation to this point seems to be Sarah Ballenden’s, it is not altogether obvious that it is not Harriott’s. This was probably the end of Mrs Ballenden’s direct examination. The tone of the questions seem more accusatory, and her responses more defensive, after this point. Cross-examination probably came from both defendant Robert Pelly and members of the court sympathetic to the defence. Governor Caldwell’s home at Upper Fort Garry. Foss had resigned from the mess on 4 December 1848 over a dispute with Caldwell that had resulted in Caldwell’s suspending Foss from his duties. Mrs Ballenden’s efforts through Christie had led to a settlement of the dispute and Foss’s return to the mess. Various letters to London, 1848 and 1849, HBCA: A.11/ 95, fo. 179, 225, 279; Caldwell to Pelly, 6 August 1850, HBCA: A.11/95, fo. 329.

Notes to pages 151–3 140

141

142

143 144

145

146

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Ross’s resignation as magistrate, prompted by his outrage over the manner in which Matheson v. Thom, case 75, vol. 2, 132, had been conducted in February, did not prevent his sitting on the General Court in this case in his other capacities. He had tendered resignations from the other positions as well, but had been persuaded to remain in them until after this case (Oliver 1914, 357). A makeshift bed. The party, held at Upper Fort Garry, included guests from the Lower Fort and other distant places who, like Lane, required temporary overnight accommodation. The reason that Lane was giving hearsay evidence about what Pelly said he saw was that Pelly, a defendant, was not permitted by court procedures of the time to testify on his own behalf. Editor’s deletion: “to.” At this point – the close of the plaintiff’s case – Captain Foss, who must have been very pleased with the evidence so far, proposed a settlement: if the defendants would agree to the court’s declaring Mrs Ballenden entirely innocent of the accusations that had been levelled against her, Foss would forego his claim to damages and costs. Both Pelly and John Black (whose wife had been separately sued by Foss) considered the offer, and responded that they would accept it if Foss, for his part, would acknowledge their innocence in regard to the rumours that had circulated about the lady’s behaviour. Foss being unwilling to let them off that hook, the case continued. Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333; Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403. Louis Riel Sr. His surname is spelled “Reill” in the report. Whether or not Riel participated in the trial voluntarily was a matter of dispute. Thom stated, after the event, that “Mr. Black and Mr. Pelly, as I am informed, have denied that they summoned the leader of the disaffected French against Mrs. Ballenden and myself, pretending that he came of his own accord. The denial at least admits the impropriety of the step, but beyond this it is of no value, for Rielle was summoned, was placed first on the list of witnesses for the Defence, and was paid for his attendance [presumably over and above the regular conduct money to which any summoned witness was entitled]; and the fact that the man, after all, had nothing to say, would alone prove that his presence as a witness was not his own act.” Thom to Barclay, 9 September 1850, HBCA: A.11/95A, fo. 363. L’Ireland was a nickname for the Riel family. See “dit” in Glossary. The unusual form of Riel’s testimony can only be speculated about. Questions were not “proposed” in this manner for any other witness of either the plaintiff or the defendants. Perhaps it was related to a desire by Riel to testify in French. He might not have been comfortable in English, and in any case, given his prominent role in the agitation during and following the Sayer trial (case 68, vol. 2, 113) the previous year for the use of French

748

Notes to pages 154–9

in the court, Riel would almost certainly have insisted on testifying in that language. The only other francophone witness in Foss v. Pelly was Madame Legeault, who, as a member of the Ballenden household, must have spoken English and probably testified in English. The court record does not disclose the presence of an interpreter. Possibly, for linguistic or other reasons, Riel insisted on having the questions provided to him in writing in advance. Or maybe Recorder Thom, whose proficiency in French may have been better in written than in spoken form, had demanded that questions for Riel be vetted beforehand by him. 147 Ellipses in original. Perhaps an obscene outburst from a spectator. 148 Thom also spoke highly of Ross’s intervention, but could not resist patting himself on the back at the same time: “I have no hesitation in stating it as the universal impression that my firmness and Mr. Ross’s eloquence, for he really spoke to the hearts of the people, saved Red River Settlement from the horrors of actual anarchy.” Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333ff., at 338b. 149 There is no indication that Riel testified under oath – perhaps an oversight on the part of Clerk Smith. 150 William R. Smith, Court Clerk. This note might also explain the absence of any reference to the evidence having been under oath. 151 Thom reported that there was almost one more defence witness: “The very last witness that was called by the Pellys and Davidsons was Miss Flora Campbell, the personal attendant, rather as companion than as servant, of Mrs. Ballenden from and after almost her very arrival on the River. Well, after Miss Campbell was seated, and even after the Clerk had set about administering the oath to her, Mr. Pelly said he did not wish to examine her, and that he would then close his case.” Thom to London, 11 January 1851, HBCA: A.11/95, fo. 413. Had Pelly expected that this intimate of Sarah Ballenden would provide explosive concluding revelations, only to learn at the last minute that her evidence would support the plaintiff? 152 Foss and Pelly both addressed the jury as well. 153 Editor’s deletion: “verdict.” 154 Foss forgave the Davidsons both the damages awarded and their share of his costs (which must also have been awarded to him, although not mentioned in the record). As well, he “withdrew his action against the Blacks on the express ground that his object of clearing Mrs. Ballenden’s character had been sufficiently attained.” Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333ff. Black’s counterclaim was kept alive for the time being, but it too was eventually dropped. 155 See, for example, Stubbs (1967, 36–9), Van Kirk (1974–75; 1980, 220–9; 1986), and Pannekoek (1991, 124–34). Sarah Ballenden is also the subject of a novel: Sarah Ballenden (2003) by Alex Aitken. 156 Van Kirk (1974–75, text associated with notes 1 and 54 respectively).

Notes to pages 159–62

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157 A description attributed to Thom’s jury address (Hargrave 1871, 256). 158 Thom to Simpson, 15 August 1850, HBCA: A.11/95, fo. 333ff., at 338. 159 Vol. 2, 150ff. 160 Vol. 2, 146ff. 161 Thom to Barclay, 9 September 1850, HBCA: A.11/95A, fo. 363ff., at 364b. 162 It is also true that the testimony of some of the plaintiff’s witnesses was helpful to the defendants. 163 His jury summation was said to have referred to her as “the choicest specimen of native modesty and grace” (Hargrave 1871, 256). 164 Thom to Barclay, 9 September 1850, HBCA: A.11/95A, fo. 363ff., at 364b. 165 Colvile to London, 28 November 1850, HBCA: A.11/95, fo. 383–4. For the circumstances leading to Colvile’s appointment, see vol. 1, 121ff. 166 John Black reported to Simpson in late November that although the situation had improved, in the “cold looks and cold shoulders still exchanged between certain parties in the Settlement ... distinct traces both of the political and the social uproar may still be seen.” Black to Simpson, 29 November 1850, HBCA: D.5/29, fo. 282ff. 167 Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403ff.; Colvile to Simpson, 4 January 1851, HBCA: D.5/30, reprinted in Rich (1956, 201–2); Black to Simpson (“Private”), 8 January 1851, HBCA: D.5/30, fo. 47ff. 168 Although the informer was never identified, and Thom was careful to protect his source, there is some reason to believe that it was someone in the household of Donald McKenzie, with whom Foss was living. Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403ff. 169 Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403ff. 170 Colvile to Simpson (“Private”), 7 February 1851, HBCA: D.5/30, reprinted in Rich (1956, 202–6). 171 Simpson to Black, 6 May 1851, HBCA: fo. 87–8. 172 Historical Encyclopedia of Western Australia Online, http://www.hewa.uwa.edu. au/home. 173 Gazette and Independent Journal of Politics and News (Perth, Western Australia), 24 July 1864. 174 I am grateful to playwright-historian Maureen Hunter for the foregoing information concerning Foss’s career after he left Red River, as well as for a number of valuable insights about Foss and the trial. 175 Simpson to Thom (“Private”), 20 April 1851, HBCA: D.4/43, fo. 47ff. 176 Colvile to Simpson (“Private”), 14 July 1851 (no. 2), HBCA: D.5/30, reprinted in Rich (1956, 238). 177 Colvile to Simpson (“Private & Confidential”), 14 July 1851 (no. 1), HBCA: D.5/30, reprinted in ibid., 221. 178 Colvile to Simpson (“Private”), 10 August 1851, HBCA: D.5/31, reprinted in ibid., 239.

750 179 180 181 182 183 184 185 186 187 188 189 190 191 192

193

194 195

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Notes to pages 162–6 Colvile to Simpson (“Private”), 24 August 1851, HBCA: D.5/31, reprinted in ibid., 242. G. Barnston to D. Ross, 22 July 1852: ABC, Ross Papers, B27. A. Ross to G. Simpson, 1 August 1851, HBCA: D.5/31, fo. 206. Van Kirk (1974–75, text following note 70). Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403ff., enclosure. Black to Simpson (“Private”), 8 January 1851, HBCA: D.5/30, fo. 47ff., enclosure. Black to Simpson (“Private”), 26 July 1851, HBCA: D.5/31, fo. 140ff. Ross to Simpson, 1 August 1851, HBCA: D.5/31, fo. 206. Ballenden to Simpson, 5 December 1851, HBCA: D.5/32. fo. 323. Thom to London, 1 January 1851, HBCA: A.11/95, fo. 403ff. Simpson to A.E. Pelly, 20 April 1851, HBCA: D.4/43, fo. 59–60; Simpson to Black, 6 May 1851, HBCA: D.4/43, fo. 87–8. Van Kirk (1974–75, text associated with note 63). Colvile to Simpson (“Private & Confidential”), 14 July 1851, HBCA: D.5/31, reprinted in Rich (1956, 221). Caldwell to J. Pelly, 7 July 1851, HBCA: 422ff. Of course, this would almost certainly have prompted an action on his contract by Adam Thom in the courts of England. Although this was not a proceeding of the General Quarterly Court of Assiniboia, it is included here, and given a case number, because the authorities saw fit to make it a part of the court record. Under earlier regimes, such proceedings had been recorded separately – as, for example, in the report of the inquest into the death by suicide of Allan McMillan, 17 May 1843. HBCA: A.11/95, fo. 20–1. The stylistic similarities between the Jerome inquest report and records of court cases suggest that Court Clerk Smith was the recordkeeper here also. There being no session of the court in August, this would not have been a burden for Smith. This reporting practice was short-lived, only two other inquests being reported in the court records: cases 80, vol. 2, 169; and 116a, vol. 2, 226. All three were held during the regime of Governor Caldwell. The evidence appears to have been given partly in French, William Dease being employed as interpreter. It would have been irregular to examine a child on oath. Probably, the clerk used the term “sworn” to include the special warning normally administered before accepting unsworn testimony from an underage or unbaptized witness. The form of testimonial solemnity invoked by Sister La Grave, a Grey Nun, had never before been noted in the General Quarterly Court records, but was an accepted substitute for an oath in the case of Christian ecclesiastics who followed Christ’s injunction, set out in Matthew 5:34, to “Swear not at all.” Smith’s emphasis no doubt stemmed from the fact that he had been in trouble for illegal liquor sales in the past. See case 60, February 1849,

Notes to pages 167–79

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vol. 2, 108; and case 65, May 1849, vol. 2, 111. The drinkers did not have far to go to find drink, however, since the next witness – Smith’s buddy and fellow miscreant George Anderson – lived nearby, and was willing to oblige. Although the jury returned the “safe” verdict of “manner ... unknown” that Coroner Bunn had suggested, it seems likely that Jerome’s death was considered accidental since no criminal charge ensued. This was the first time Colvile sat with the court. For the circumstances of his appointment, see vol. 1, 121ff. As the senior governor present, he displaced Caldwell as president. A major change that Colvile instituted was the introduction of French to court proceedings for more than witnesses: “At the different courts I have attended here I have made it a point to conduct the whole of the proceedings in both languages, and I have reason to believe it has given great satisfaction to the French Halfbreeds.” Colvile to Simpson (“Confidential”), 22 May 1851, HBCA: D.5/30, fo. 209, reprinted in Rich (1956, 206ff.). There is no indication in the record as to whether Andrew McDermot recused himself for this trial of alleged theft of his own property, but he probably did. Probably a constable. Editor’s deletion: “Verdict.” The payment of 2 shillings and 6 pence to each lay witness other than Murphy was “conduct money” to cover their expenses for travelling to the site of the inquest, as well as compensation for time lost in attending. Martin Dolan is listed twice in the original record, but the second entry has been excised here because its retention would cause the total of the individual entries to exceed the listed total by 2 shillings and 6 pence. The failure to pay conduct money to Murphy doubtless reflected the jury’s reprimand for negligently failing to exercise greater care for his wife’s safety. The sum paid to Dr Cowan would have included his professional fee. The absence of a reference to conduct money in the report of the Jerome inquest (vol. 2, 164) seems to have been a clerical oversight. “Eagan” is also spelled “Egan” in the report of this case. The current year (i.e., 1851). Spelled “MacDermot” in the style of cause but not otherwise. There is no indication in the court record as to whether McDermot stepped down from the bench during the trial of his claim, although he probably did. Son of Pierre-Guilleaum Sayer, and a key witness at his father’s famous trial in May 1849 (case 68, vol. 2, 113). Note that, contrary to previous practice, the plaintiff was permitted to testify before the jury under oath. The explanation may be that although the case was framed as a civil claim, it was treated by the court as a criminal proceeding, to which the quasi-civil remedy of restitution was appended. It was at this session of the court that Adam Thom was to have taken over as clerk after losing the recordership, but public sentiment would not allow

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Notes to pages 179–82 this to happen: “With reference to Thom’s new position, I am sorry to say that, although he accepted the new appointment contrary to the expectation of all his friends, it has in no way conduced to the peace of the Settlement, or contributed to rendering him more popular. Before the May court I took the opportunity of seeing Rielle and others of the Canadian agitators, and explained to them the change in Thom’s position, and that he was now servant of the Court instead of master as heretofore. They replied that in their opinion the people would not let him into court in even the capacity of constable.” Colvile to Simpson (“Confidential”), 22 May 1851, HBCA: D.5/30, fo. 208, reprinted in Rich (1956, 206). Having been instructed by London to play a less direct role in the governance of the settlement, Eden Colvile had handed the presidency of the court back to Caldwell at this point, although he continued to sit as a magistrate, and to instruct juries. Colvile to Simpson (“Confidential”), 22 May 1851, HBCA: D.5/30, fo. 208, reprinted in Rich (1956, 206). The latter function was probably retained at the request of Caldwell, who made no secret of his personal distaste for the task. This was Black’s first appearance as a member of the court, replacing the resigned Andrew McDermot. Previous introductory summary descriptions of cases have been provided by the editor, enclosed in brackets. At this point, the court clerk began to include such descriptions in the original court records. This did not always occur, however, and where it did not, the editor will continue (until the end of volume C) to present bracketed descriptions. Editor’s deletion: “sworn.” The words “asked of” appear to be misplaced. The sentence seems intended to state, “the Prisoner asked of the other Indians.” It would be difficult to find a better example than this of respect for the presumption of innocence by Red River courts. This would suggest that the witness was not a baptized Christian, and had accordingly been interrogated as to her understanding of the need to speak the truth and so forth before being allowed to testify. It had been previously demonstrated that flogging was not a popular punishment and that it was not easy to find someone willing to act as flogger. See vol. 1, 42; and Ross (1856, 187). This case was no exception: “Under a sentence of the May Court, we ... had an Indian flogged, but the poor fellow’s condemnation for killing one of the settler’s oxen to feed some of his following having excited a good deal of public sympathy, it was found no easy matter to produce a flogger, even for a pretty good sum. But, as it would have stultified the whole proceedings if the Indian had gone off scotfree, I got Grant, qua Sheriff, to bring down [from White Horse Plain] one of the most necessitous of his subjects one night pretty late, and the next morning before breakfast the Indian got his allowance and decamped. We

Notes to pages 183–92

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have neither heard nor seen anything more of him, and I daresay he will be a long while before laying hands on another ox.” Black to Simpson (“Private”), 5 September 1851, HBCA: D.5/31, fo. 417ff. Whether a flogging inflicted “one night pretty late,” followed by an early morning dispatch of the injured prisoner to some distant place, complied with the court’s edict of “public” flogging may be questioned. The record erroneously states, “Caldwell.” Dr Bunn, who was president of the Lower District Petty Court as well as a member of the General Court, had received, in his former role, sworn evidence about the present case from the informer. It had been given in the capacity of a “Queen’s witness,” which meant that if the evidence was accepted as such, the informer would not be prosecuted for any possible wrongdoing on his own part. Bunn presented the evidence to this court, and proposed that it be accepted on those terms. The court agreed. As this informer would later discover, however, such immunity did not provide protection against perjury. The outcome of this strange case is difficult to explain, since whatever discrepancies might have existed between Irvin’s deposition and his oral testimony, there was what seems to have been strong evidence of guilt from two other witnesses. George Irvin was found guilty of perjury and sentenced to two months’ imprisonment in November 1851 (case 90, vol. 2, 189). No style of cause appears in the record. Fence. Black to Simpson (“Private”), 23 December 1851, fo. 400ff. The pagination of the reports begins anew, in a new physical volume, at this point. The second series is indicated herein by the prefix “B.” The record erroneously states “Caldwell.” William Ross had been appointed sheriff and governor of the jail following his father’s resignation from those posts. He had not yet been appointed a member of the Council of Assiniboia, justice of the peace, or magistrate, however, which meant that although he could sit with and assist the General Court as sheriff, he could not participate in the court’s deliberations. This prosecution was the consequence of a charge that Irvin had given perjured evidence at the previous court session in case 88, vol. 2, 184. No style of cause appears in the record. Case 93b, vol. 2, 194, is the resulting trial. It is instructive to contrast the simple, clear language of this proposed indictment with the convoluted monstrosity composed by Recorder Adam Thom for the Capenessweet murder trial in 1845 (case 6, vol. 2, 17). This was not yet the determination reached by the grand jury. It was a draft bill of indictment prepared in advance by law enforcement authorities – perhaps Eden Colvile – in the hope that it would be endorsed by the grand jury. That was the normal procedure in England and at Red River. Following

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Notes to pages 194–204 presentation of the draft bill, the grand jury would normally hear evidence, retire for deliberation, and then return to the courtroom to either endorse the document as a “True Bill” or give a finding of “No Bill” (or “Ignoramus”). Although the record is silent at this point about the grand jury’s deliberations and finding, we know from later entries that it returned a “True Bill” later the same day that indicted only Jane Heckenberger, the deceased child’s grandmother (case 93b, vol. 2, 194). The commencement date would have been the day the accused was taken into custody. For the grand jury indictment in this matter, see case 93a, vol. 2, 191. Colvile to Barclay, 16 March 1852, HBCA: A.12/13, fo. 121, reprinted in Rich (1956, 115). Black to Simpson (“Private”), 7 February 1852, HBCA: D.5/33, fo. 192–3. Macleod (1947, 83). Black to Simpson (“Private”), 25 March 1852, HBCA: D.5/33, fo. 341–2. Ibid., fo. 342a. The “other considerations” might well have been the community outrage he and other members of the court knew would be provoked by hanging the woman. Note the practice of “crying out” for lost animals after church services: a form of “due diligence” responsibility on the part of their owners. Probably striped. Eden Colvile had completed his service at Red River by this time and, after conducting a meeting of the Rupert’s Land council at Norway House in July, was on his way home to England. John Black was in Scotland on furlough. The reason for Cuthbert Grant’s absence is unknown. Editor’s deletion: “of.” Presumably rawhide sled harness or reins. This is a relatively rare instance of clearly identified cross-examination by a party. Note that it seems to have occurred after interrogation by members of the court and/or jury. This decision not to receive purely hearsay evidence is a refreshing contrast to the gossip free-for-all that occurred during Foss v. Pelly, case 77, vol. 2, 136. This appears to have been Dr Bunn’s first jury charge. It will be recalled that Governor Caldwell, whose responsibility that task was, refused to perform it. Governor Colvile, who had filled in for Caldwell in that respect, had left the settlement. Bunn’s service as acting recorder, whether or not official, had begun. For a sequel to this case, see case 101, vol. 2, 206. Unbaptized Indians were required to promise to be truthful after being questioned as to their understanding of the need for truth. The Laws of Assiniboia called for Indians to be refunded the purchase price of liquor after they had consumed it.

Notes to pages 204–11 250 251

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Both Dr Bunn’s leadership and his compassion are worth noting. “The Pines” appears to have been a distant stand of pine trees located, from the evidence of Joseph Vandal, almost twice as far from the Forks as Lower Fort Garry. The father of Manitoba’s founder. Louis Riel Jr was just eight years old at this time. Probably one of the jurors. Note that the husband sued on behalf of his wife, a consequence of the prevailing law that, in most respects, husband and wife were “one in law.” Case 97, vol. 2, 199. This suit was based on the same events litigated by Hodgson in the earlier case. The usual concluding affirmation of the witness’s oath is missing. Given that her husband and son had been fined in the previous case twenty times the damages awarded to Mrs Foubister this time, the decision may be seen as a Pyrrhic victory. Section 38 of the newly revised Laws of Assiniboia (1852) (Oliver 1914, 379) stated that the petty courts “shall take cognizance of all actions ... not exceeding five pounds,” and such claims were therefore not normally heard by the General Court. Whether those local laws were also intended to deny the senior court the right to deal with such small claims if it chose to do so was not certain from their wording. However, the General Court clearly possessed plenary jurisdiction in all litigation, regardless of amount, under the HBC charter. The ploy of suing for more than the real claim just to establish the court’s jurisdiction was therefore unnecessary. A stick used as a weapon; a club. Editor’s deletion: “that.” An anglicized corruption of the French expression “tas de merde,” meaning “pile of shit.” The nominal award of 5 shillings in damages, as in the previous case, and the lower than normal award of costs (the latter perhaps reflecting that the claim should not have been brought to the General Court) suggest that the court did not think the matter was very serious. This appears to be the first instance in the General Quarterly Court records of the court’s hearing an appeal from a petty court decision. Since parties to civil actions were not normally required or allowed to give sworn testimony (but see case 105, vol. 2, 212n267), this may have been just a figure of speech to describe the defendant’s unsworn statement. However, section 41 of the recently revised Laws of Assiniboia (1852) stated, “In any court, either party to a civil action may be made the other’s witness.” If that implied cross-examination under oath, might it not also have implied examination-in-chief under oath as well?

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Notes to pages 211–15 Although written jury verdicts were not common, one was given as early as 1839 (see vol. 1, 401n43). Another occurred in case 105, vol. 2, 212. While there are many previous instances of judgments by default given against defendants who did not answer summonses to appear before the court, this case offers a particularly good description of the procedure followed. Parties normally gave unsworn statements only. The fact that at the same court session some parties gave sworn evidence and others did not suggests that at this point the earlier practice was being eroded. See note to case 103, vol. 2, 211. See note above concerning the plaintiff’s giving sworn testimony. This observation was presumably made by Court Clerk William R. Smith. The court had not seen the last of this horse. See case 108, vol. 2, 216. This is the only time the term “upper” was used in reference to the court. Did it suggest that someone was contemplating the possible creation of a separate “Lower” General Court for the vicinity of the Lower Fort? Might that someone have been Adam Thom, who was somewhat less unpopular in the lower, English-speaking parts of the settlement, where he lived, than in the predominantly French-speaking area around the Upper Fort; and who, as nominal court clerk, may well have had a continuing influence on the drafting of the court records? Councillor. Dr Cowan, who came to Red River with the Chelsea Pensioners in 1848, entered the service of the HBC in 1852, and married a daughter of free trader James Sinclair the same year. Although he did not serve on the court for long, he would provide important continuous public service to the settlement until after Manitoba became a province. Thomas was also newly appointed to the court. The reason for restricting this meaningless honorific (usually assigned to gentlemen with no earned title) to Cuthbert Grant is unclear. Perhaps he insisted upon it, but it was more likely a simple matter of space on the page. At the next court session (vol. 2, 221), only Thomas was so honoured, and at the one after that (vol. 2, 223), everyone with no other title was “Esquired.” A forty-four-year-old, highly respected French Halfbreed leader. As with Cowan and Thomas, this was Bruneau’s first appearance on the General Court bench, although he had considerable experience as a juror. He would remain an important judicial figure until his death in 1865. Although Ross had been sitting with the court as sheriff since 20 November 1851, this was, as for Cowan, Thomas, and Bruneau, his first session as a member of the court. On 29 March 1853 he and the others had been sworn in as members of the Council of Assiniboia, qualifying them to sit on the court (Oliver 1914, 389). It is difficult to understand why the jury was selected before the accused pled. When a guilty plea rendered this jury superfluous, it was not used for

Notes to pages 216–33

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the immediately succeeding case, although some of these jurors served later the same day. Perhaps the juries were selected by the sheriff before the court opened. Although generally known to history as Pascal “Bréland,” this influential conservative Halfbreed leader and his also prominent brother, Patrice, were commonly called “Berland” at this point – at least in English-speaking circles. The usefulness of this preliminary statement by the plaintiff is not clear since he had to repeat his story after the jury was composed. “Empanelled” is frequently misspelled “empanneled” in the court records and has been corrected throughout. In that context, “horse” seems to have meant a male, or perhaps an ungelded male. See case 105, vol. 2, 212. This decision had rather complex financial consequences, which the court does not seem to have attempted to assess. In the prior decision, after awarding ownership of the horse to MacDonald (who subsequently sold it to the defendant in the present case), the court had ordered him to pay the prior defendant £2.5.0 for finding and keeping the horse, as well as to pay the court costs. Now, presumably, MacDonald would have to refund the sum he had received from Walter Bourke for the horse. One hopes that Berland would have to reimburse MacDonald for the finding and keeping fee. Who, if anyone, paid the costs this time is not indicated. Likely the son of the court clerk. This was the first time Thomas Sinclair sat on the court. A prominent resident of St Andrew’s parish, he was, interestingly, a younger brother of Sir George Simpson’s nemesis James Sinclair and had, like his brother, grown prosperous while associated in business with Andrew McDermot. He was sworn in as a member of the Council of Assiniboia on 29 March 1853 (Oliver 1914, 389). This appears to be the first time that Caldwell overcame his reluctance to charge a jury. The necessity for his doing so arose from the unexplained absence of Dr Bunn, who had been performing that function for the governor since Governor Eden Colvile left the settlement. Promissory note. A Red River pioneer, Robert McBeath has been described as “a jack of all trades in the Settlement, farming ..., running a store, and operating a freighting service to York Factory. He was appointed to the Council of Assiniboia [and therefore the General Court] in 1853, the first Selkirk settler so recognized” (Bumsted 1999b, 149). This was his first sitting on the court, which he was to serve for many years. He had been sworn in as a member of the Council of Assiniboia on 29 March 1853 (Oliver 1914, 389).

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Notes to pages 223–230 The unusually high sum at issue here caused Sheriff Ross to write to Caldwell asking whether the court could entertain such a claim, “the opinion ... throughout the Settlement” being that its jurisdiction was restricted to £200. Caldwell doubted that there was such a restriction, but sought confirmation from London. Caldwell to London, 17 November 1853, HBCA: A.11/95, fo. 555ff. London confirmed his view that there was no monetary limit to the court’s jurisdiction. Smith to Caldwell, 4 April 1854 (Oliver 1914, 389). The question should not have been difficult to decide, since the court had permitted parties to be represented by “agents” on previous occasions, when no language difficulty existed. The most recent example had been at the previous session of the court (case 111, vol. 2, 222). According to Caldwell, McDermot’s letter said he would obtain the money from funds he held in England, and that Lane would pay interest in the meantime. Caldwell to London, 17 November 1853, HBCA: A.11/95, fo. 555ff. It is possible to make a bill of exchange payable to the bearer, in which case endorsement is not required, but that was not the situation here. Calder, case 49a, vol. 2, 77, was a major, but rare, exception. Although criminal juries were usually composed equally of francophones and anglophones, this one appears to have been entirely French-speaking, and no Indian interpreter was provided. Possibly the prisoners understood French. Dr Bunn was back on the bench, relieving President Caldwell of having to charge the jury. For the subsequent criminal prosecution, see case 116b, vol. 2, 229. Crackling sound. This prosecution followed from the findings of a coroner’s inquest (case 116a, vol. 2, 226) the previous November. No style of cause appears in the record. Editor’s deletion: “she.” This act of laziness on the part of the court clerk prevents our knowing whether the accused made any statement in her own defence, or challenged any of the statements made by the witnesses, whom she was not present to hear at the inquest. This was a considerably less serious charge than the inquest finding of culpable negligence causing death. It seems probable from the nature of the court’s intervention that what was really at issue between the parties here was some squabble about the internal affairs of the Temperance Society. On the face of the record, however, the court’s summary dismissal of the claim was not in accordance with the English law of defamation. Father Aubert openly admitted everything that

Notes to pages 231–8

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a defamation claimant must initially prove: the publication of a statement defamatory on its face. Without proof of some valid defence – truth, privilege, and so on – by the defendant, the decision ought to have favoured the plaintiff. 3 shillings. 25 shillings, 2 pence. Probably the person called “Casseepas” in the next case. 8 pence. Probably the person called “Kaksepas” in the last case. Caldwell had been promoted from major to lieutenant colonel. No style of cause appears in the record. James Green, a fairly prominent free trader, must have left Assiniboia altogether, since he never appeared before the court thereafter. Unfortunately, there is no indication of what the charge against him was. The words “and interrogated,” which had commonly followed “sworn” in previous reports, disappeared from the court records at this point. It seems unlikely, however, that members of the court and jurors ceased their previous practice of questioning witnesses when so inclined. Court Clerk Smith probably just decided to simplify the rather cumbersome reporting formula that former recorder Thom had instructed clerks to employ. Further simplifications would occur over the next year or two. Editor’s deletion: “he.” A settler’s “park” was the “infield” portion of the farm, closest to the house and outbuildings. It was used for the household garden and cereal crops. Animals usually grazed in the “outfield” area, beyond which was a “hay privilege” (Coutts 2000, 134). New recorder Francis G. Johnson, a Queen’s Counsel from Montreal, had arrived during the summer, and this was his first sitting with the court (see vol. 1, 146) Johnson’s being given top priority in the listing of court members on this occasion may reflect the enthusiasm of Court Clerk Smith at the prospect of finally having reliable professional guidance in his work. Whatever the reason for this small error in protocol, Governor Caldwell would see to it that he regained his own predominant position in the report of the next court session (vol. 2, 238). The formulistic coda to witnesses’ testimony – “All which is truth as Deponent shall answer to God” or words to that effect – which Adam Thom had introduced but was gradually falling into disuse, disappeared with this case, perhaps at Recorder Johnson’s request, although it would be revived in the final two sessions of his tenure and thereafter. Editor’s deletion: “that.” For an example of a similar arrangement made with a private party, see NW640901.

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Notes to pages 240–5

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For a fuller account of social, legal, and governmental circumstances during this period, see volume 1, chapter 7. Recorder Francis G. Johnson, a Queen’s Counsel from Montreal, had arrived the previous summer. His first sitting with the court was on 17 August 1854 (vol. 2, 236). See vol. 1, 146. Note the slight change of order in the councillors’ names from the previous court session, presumably reflecting someone’s sense of social ordering. Geldings were less prone to the behaviour alleged by the plaintiff than were ungelded stallions. Editor’s deletion: “did.” McDonald appears to have been one of Governor Caldwell’s pensioners. The McDonalds seem to have been recalled to the stand in light of Shokin’s allegations. The cross-examination was probably by Shokin but may have been by a member of the court. Since it is likely that the accused were in custody for some time prior to the trial, they probably spent more time in jail than this indicates. See also the subsequent case, where the same men received an additional sentence. The overall sentences were nevertheless very light. For a possible explanation, see Commentary at the conclusion of this court session. Editor’s deletion: “Adjourned.” The “row” referred to the events involved in the previous two cases. Chegan’s testimony offers some insight into the manner in which the informer law was used to persuade Indians to testify against their suppliers. His being told that “he would get back his money” was an obvious enough incentive; but how his evidence could get Kanecat and his friends “out of the scrape” is not so obvious. Perhaps Sheriff Ross hoped that Chegan would testify to having purchased beer from McDonald (thereby providing a partial explanation and excuse for the assailants’ demanding entrance to the McDonald home), as well as from Pixley. Chegan was in fact called to testify against McDonald in a subsequent case, though the court refused to hear his evidence. Another possibility – that the sheriff promised to arrange light sentences in the previous cases – cannot be ruled out, since the sentences for terrorizing the McDonalds and their neighbours were remarkably light. Recorder Johnson’s rationale for having accepted the evidence of this witness and having rejected that of the previous two proposed witnesses is not clear. Was a Christian oath administered to Natawas, or was he a non-Christian who satisfied Johnson that he understood the need to tell the truth on the witness stand and the consequences for not doing so? Was the evidence of Wyassissin and The Twin refused because they did not understand the solemnity involved in testifying before a court or simply because they were

Notes to pages 245–9

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not Christians? Although Recorder Thom accepted the evidence of nonChristian Indians who understood the need to tell the truth in court, it is uncertain whether Johnson took the same approach. He seems not to have done so in case 137, vol. 2, 256. Although not indicated in the record, Pixley was also required to give “security to keep an orderly house for 6 months.” Johnson to Simpson, 6 June 1855, HBCA: D.5/40, fo. 289ff. That is, the events involved in the two assault and battery cases tried at the same court session. Why Chegan’s evidence was accepted against Pixley but not against McDonald was not explained. 6 pence. 3 shillings. 1 shilling, 6 pence. One of those convicted of assault and battery earlier in the same court session. Although it is not indicated in the record, Sharp was also required to give “security to keep an orderly house for 6 months.” Johnson to Simpson, 6 June 1855, HBCA: D.5/40, fo. 289ff. Nothing in the evidence suggests a reason for treating Sharp more leniently than was Pixley in case 127, vol. 2, 245. The record fails to indicate the composition of the court on this occasion. It is known that Recorder Johnson sat. Johnson to Simpson, 6 June 1855, HBCA: D.5/40, fo. 289ff. And it is likely that Governor Caldwell, who had probably not yet received the letter calling him home, and who continued in office until the following month anyway, was also present. Johnson, well aware that the court’s authority under the HBC charter depended on the presence of the governor and his council, would hardly have sat without him. There is, in fact, no reason to believe that the membership of the court differed at all from what it had been at the previous session. Although Joseph Bird was present in court as the agent of the plaintiff, and neither plaintiffs nor defendants were permitted to give sworn testimony, the court apparently saw no objection to an agent being a sworn witness. He could, of course, give evidence only from his personal perspective, not that of the plaintiff. Thomas Sinclair was a member of the court. If he was sitting that day, which is probable, he should have stepped down from the bench for at least the course of this case. The basis of this ruling is not explained. Perhaps the recorder’s reason was that the authenticity of this document needed to be proved by its author; but if so, why could the hearing not have been adjourned so the document could be sent to York Factory for verification? Editor’s deletion: “Adjourned.”

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Notes to pages 249–53

Report of Select Committee, House of Commons (UK), 1857, 301, Q. 5438. This statement, like Murray’s opening statement, was not sworn testimony, and should not have been given any probative significance. Indeed, it was highly unusual for an opening statement to be later supplemented in this manner. 29 Editor’s deletion: “or.” 30 Although this witness did not ultimately say anything useful to either side, the question – whether, in the opinion of the witness, a previous witness was credible – was altogether inadmissible, and should not have been permitted by the recorder. 31 Johnson to Simpson, 6 June 1855, HBCA: D.5/40, fo. 289ff. Johnson also criticized Sheriff Ross for having, without Governor Caldwell’s authorization, temporarily released Dumas from prison after sentence into the bonded custody of relatives for the duration of a serious illness from which the prisoner suffered. That criticism may have been less warranted since the sheriff was also the “Governor of the Prison.” 32 James Mulligan was a Chelsea Pensioner who would opt to remain at Red River when his unit was recalled to England shortly after this trial. A feisty individual who later served the settlement in a constabular role for quite some time, Mulligan also had a canny eye for business opportunities and would, through land and loan transactions, eventually amass considerable wealth. This was the first time Mulligan appeared before the General Court, but it would not be the last. His business activities involved him in considerable litigation, and he eventually appeared in the General Court nine times, seven as plaintiff. How often he appeared in the petty courts can only be imagined. 33 The facts of this case are remarkably similar to a later case involving Mulligan (case 174, vol. 2, 287), the newspaper account of which provides a taste of Mulligan’s indomitable spirit in court. NW591228. For a portion of that account, see vol. 1, 164. 34 Although the report does not so indicate, all or most of the witnesses seem, from the tenor of their evidence, to have been called by the defendant. 35 The record is not entirely accurate in stating that the verdict was for the defendant, since the defendant was found liable to pay the plaintiff £16.2.0. That sum, added to what the plaintiff was already paid, brought the total price for the property to £40 – £10 less than the contract price. The reduction presumably represented the value of the building the plaintiff had removed; but how the court or the jury arrived at that valuation is not clear, absolutely no evidence on that subject having been noted in the record. 36 Johnson was appointed governor of Assiniboia effective August 1855, when Caldwell returned to England. Although his appointment as recorder continued as well, he chose to be described by the more prestigious title.

Notes to pages 255–9 37

38 39

40

41

42 43

44

45 46 47 48

763

While it was not common to make a successful litigant share the costs, it was within the court’s power to do so in circumstances where, as here, it was thought that neither party deserved much sympathy. Was it the deponent or his son who asked the question? If the son, the evidence was hearsay. It does not appear that Recorder Johnson gave the witness the option, as Recorder Thom had in similar situations, of testifying on the basis of an understanding of the obligation to tell the truth in court. See also his refusal to accept evidence from Wyassissin in case 127, vol. 2, 245. John Inkster, a Red River pioneer and founder of the Kildonan Inkster family, had been sworn in as a member of the Council of Assiniboia in June (Oliver 1914, 423). He appears to have sat on the court on this one occasion only, to fill in during Thomas Sinclair’s temporary absence. He had been a member of the Lower District Petty Court since 1850 (Bumsted 1999a, 118). Fortescue, who acted here both as agent for the HBC in presenting its case and as witness, was a well-connected young Englishman whom George Simpson would describe three years later, after Fortescue’s carelessness had facilitated robberies from Upper Fort Garry, as “a gentlemanly, well-meaning young man, but flighty, somewhat conceited, and without any time for office duties.” Simpson to Berens (“Private & Confidential”), 1 June 1860, HBCA: D.4/84A, fo. 53ff. In the absence of the other party – in this case the properly summoned defendant. The award of “damages,” which was over and above reimbursement of the advances made to the employee, was to compensate for the additional expense and/or inconvenience of locating and hiring a replacement. Note that the court awarded considerably less than the £10 damages claimed by the company in both this and the next case. The lack of any reference to the defendant’s name being called out – as had been done, likely by the sheriff, in the previous case – could be the result of an oversight in the clerk’s notes; but it probably indicates that Favel was present, though silent, in the courtroom. Marginal notation in pencil: “20 Nov. 1856.” The present Minneapolis. See cases 141b, vol. 2, 260; and 141c, vol. 2, 265. This provides a good illustration of court costs. The three named witnesses, who were summoned and showed up for the postponed trial, were each entitled to “conduct money” of 2 shillings and 6 pence. The sheriff or his constables also charged 1 shilling apiece for serving five summonses: on the defendant, on the three witnesses named, and on some unidentified person, perhaps a witness who did not appear.

764 49

50 51 52 53

54

55 56 57 58 59 60

61 62 63 64

65 66

67 68

Notes to pages 260–9 This case began at the August sitting of the court (vol. 2, 259), but was adjourned by reason of the short notice received by the defendant. It would not be concluded until a third session in May 1858 (vol. 2, 265). A standard unit of a surveyor’s chain, being 7.92 inches long. A surveyor’s chain, consisting of 100 links, was 66 feet in length. Apparently a post placed by an earlier surveyor. Perhaps a son of the famed Peter Fidler, who was responsible for many early Rupert’s Land surveys. The elder Fidler died in 1822. Whether this witness was also a surveyor, or just a fence builder, is unclear. The difference between Inkster’s and Fidler’s lines seems to have been that whereas the latter ran between the tree and the rock, the former ran between the same tree and a post left by an earlier surveyor. The parties did not actually come back to the court until the May 1858 session (vol. 2, 265). The subsequent hearing (vol. 2, 265) would show that the surveyor chosen by the court for this task was that of the plaintiff, William Inkster. For another example of Johnson’s playing a mediation role in the court, see case 151, vol. 2, 268. This was a deviation from the weakening rule that sworn testimony would not be accepted from parties to litigation. It appears that although Goudré’s setoff for wages was disallowed, most of his other counterclaims were deducted from Rowand’s claim. “If any hay-stack in the open plain shall be injured by a running fire, the owner shall not recover damages unless such hay-stack has been protected, at a distance of at least thirty yards, by a ploughed belt of at least four feet wide.” Laws of Assiniboia (1852), s. 2 (Oliver 1914, 373). A member of the court. It was unusual for Court Clerk Smith to sign the court record. See vol. 2, 259, 260. Why Mulligan was not awarded a default judgment, as in the previous case, is not explained, but it was probably because Mulligan had omitted to serve a summons on the defendant. Note the return of this little concluding formula after an absence of several court sessions. “Horse Taking. 9. If any person take another’s horse, to ride or to drive, without consent, he shall be fined one pound, and shall forfeit all such equipments, of any description, as he may have used in such riding or driving.” Laws of Assiniboia (1852), s. 9 (Oliver 1914, 374). Horse theft at common law being a very serious offence, this local law permitted minor “unauthorized borrowings” to be dealt with more leniently. The defendant must have pleaded guilty. The inclusion of Louis Riel Sr in a jury panel was probably a sign of slightly improved relations between settlement authorities and the Halfbreed community.

Notes to pages 269–74

765

69 For an earlier instance of similar mediation by Johnson, see case 142, vol. 2, 262. 70 There was really no need to involve the jury since default judgment in such circumstances is automatic. 71 An establishment on the upper Assiniboine River. 72 This sentence illustrates the difficulties that the frequent absence of punctuation from the original record sometimes creates. It could be read as meaning either that the conversation with the deponent took place at Fort Pelly or that the earlier alleged gifting of the horse took place there. The former interpretation has been adopted here. 73 Editor’s deletion: “the.” 74 This could mean that the case was taken first to the petty court, where Thomas Sinclair also sat, but which court would have had no jurisdiction over such a case. It probably meant only that the General Court claim was filed before Magistrate Sinclair. 75 Laws of Assiniboia (1852), s. 19 (Oliver 1914, 376). 76 Laws of Assiniboia (1852), s. 23 (ibid.). 77 A “nonsuit” decision, correctly understood, signifies that the facts alleged by the plaintiff, even if true, disclose no basis for legal liability. Often, however, the General Court used the term to mean only that a claim was unsuccessful. The record does not reveal what the allegations were, much less the nature of the evidence, if any; but one may speculate that the absence of the slightest reference to any evidence may indicate that this was a nonsuit in the true sense. 78 Owed him money. 79 Beginning with this session, the first after Governor-Recorder Johnson left the scene, and continuing until May 1861, the court sittings were set back by one month to March, June, September, and December. 80 Chief Factor William McTavish had replaced Francis Johnson as governor. See vol. 1, 153. 81 Sic. Perhaps the clerk meant to signify that the first of the two cases heard that day – Mowat v. Sabiston, in which no sworn testimony was called – was decided without the assistance of the jury. 82 The ruling in favour of the plaintiff might have been based on disbelief of the defendant’s explanation. It could also have resulted from a ruling by the court that, according to the custom of the trade, an admitted absence at departure time was culpable without regard to the reason. 83 Regrettably, the practice of recording petty jurors’ names in the court records ceased at this point, and did not resume until May 1871, when Recorder Johnson was once more on the General Court bench. Jury lists from February 1863 onward can, however, be found in the Sheriff’s Book, 1863–71, AM: MG2, B4–2, reel M389. 84 Probably the La Salle River. 85 Although this award was much less than the plaintiff’s claim of £30, it considerably exceeded the valuation of all witnesses.

766 86

87

88

89 90

91

92 93 94 95 96 97 98 99 100 101

102 103 104 105 106

Notes to pages 278–85 This steam grist mill – Red River’s first – was built in 1856, would burn down in 1860, and would later be rebuilt. John Inkster was in charge of the project. The plaintiff was an elderly, sometimes invalid, man who had surrendered all his property to the defendant in return for permanent room and board. He had sued the Sisters of Charity over a similar arrangement five years previously (case 122, vol. 2, 236) and would eventually take Thebeault to court twice more: cases 230, vol. 2, 359; and 304, vol. 2, 478. This was the first and last time that the prosecuting authority was so described. The designation “The Queen” soon began to be used occasionally, but the familiar “Public Interest” also reappeared before long. The name of this rather shady character, a former Chelsea Pensioner, was sometimes spelled “Gazden.” Could there be a more eloquent commentary on the status of Red River’s Indigenous population than imprisoning one of its members for four months without even knowing his name? The reason for calling a special session of the court for these two relatively minor cases is not known. Possibly, the witnesses would be dispersed – on the fall buffalo hunt, for instance – before the next regular session. The same man was called “La Doux” in case 167, vol. 2, 282, and his sons were called “La Doux” in this case. Editor’s deletion: “by which it appeared.” This person appears to have been the accused’s son, who was present in the same boat. See Glossary. Presumably a second son of the accused. Pierre La Deux was also given a two-month sentence “from this date” in the next case, the two sentences seemingly to run concurrently. The same man was called “La Deux” (but his sons “La Doux”) in the previous case. A small metal drinking vessel. Since La Deux (La Doux) was also given a two-month sentence “from this date” in the previous case, the two sentences seem to have been concurrent. Adam Thom had stated, in a note to his ill-fated draft 1840 Penal Code, that English law did not provide for varying degrees of punishment for criminal collaborators, something he criticized: “Is it not inconsistent and impolitic to admit unequal intensity of guilt, and yet to inflict equal intensity of punishment?” Penal Code for Rupert’s Land, HBCA: E.16/1, fo. 26, n1. At common law, trespass was actionable without proof of damage. “Slinging” probably meant catapulting the stones by means of a slingshot. Editor’s deletion: “of Turner.” Probably the General Court sitting in August. By the defendant, it seems.

Notes to pages 285–94 107

108 109 110

111 112

113

114 115 116 117 118 119 120 121 122 123

767

There is no record of either the reason for this deferral or the fine eventually imposed. Possibly, the governor or Dr Bunn felt that some good could come from speaking to Bourk about his temper, and to the Turners about their children, while the punishment hung unspecified over their heads. The basis of the recommendation is unknown. Could it have been the fact that Jacob seems to have been “passing” for white? This was the first court session reported in the Nor’-Wester newspaper. NW591228. Dr Bunn sternly informed Catherine that although the other members of the court thought a three-month sentence would be appropriate, the governor, who had the power to reduce sentences anyway, had recommended two weeks. The girls had already been in custody for three weeks. NW591228. Catherine would be convicted of burglary and larceny in May 1863 (case 241, vol. 2, 421), when she would receive a three-month sentence. Large cask. If, as it seems, this was one of the accused, it was highly unusual for the court to permit him to give sworn testimony. The “Not Guilty” verdict was also unusual for such a case. The fact that Pierre George and Andrew Lewes gave conflicting testimony in the preceding case was probably not coincidental, and would certainly not have been lost on the court. Without this conjunction, which the context suggests, the original would appear to state that the witness had heard of these men being accused of taking liquor. The facts of this case are rather similar to an earlier case involving Mulligan (case 134, vol. 2, 252), but with Mulligan in the reverse role. This case was extensively reported in NW591228. Part of that report can be found in vol. 1, 164. NW591228. This is not, and was not then, a legally valid option for any court – the case must always be decided one way or another. Oliver (1914, 442). NW600128. See evidence of J.H. McTavish in case 376, November 1867, vol. 2, 524. The Nor’-Wester report of this session is much fuller than the official record for some cases. NW600328. Fortescue acted as agent for the plaintiff. Henry McKenney was, in many ways, a forerunner of the new wave of entrepreneurial immigrants who were about to inundate the settlement, and transform it fundamentally. Arriving from Upper Canada on the first steamboat to dock in June 1859, McKenney was an Upper Canadian looking to get rich quickly at Red River. He soon opened Red River’s first hotel, threw himself into moneylending and numerous other commercial ventures, and

768

124 125

126 127 128 129

130 131 132 133 134

135 136

137 138 139

Notes to pages 295–302 began to dabble in the rudimentary politics of the time. He was appointed sheriff in 1861. This was his first appearance in the General Court, but he would soon become a familiar courtroom figure, being involved, in his personal capacity, in forty-two further cases. See case 197, vol. 2, 310, where defendant Geddings sought revenge on McKenney. This case had a long history. It had first been brought in the Lower District Petty Court, where the magistrate could not make up his mind, postponed over the summer because witnesses were absent, and deferred at the December sitting of the General Court because of an error in the summons. NW591228. At this and earlier hearings, the plaintiff’s agent was Maurice Lowman. John Bunn Jr represented the defendant. NW600328. Cases 187a, vol. 2, 229; and 187b, vol. 2, 304. Probably from the plains, where animals were often left to graze and/or overwinter. It appears from this case that each plaintiff in civil litigation was required to pay a deposit into court when filing a claim, as security for costs in the event the action failed. Why the costs should have been “charged to the defendant” at this stage of this case is difficult to understand. The plaintiff’s claim did ultimately succeed at the adjourned hearing (case 187b, vol. 2, 304); so perhaps this fair copy of the report was not made until after that, and therefore anticipated the final outcome. For a precursor action by the defendant against the plaintiff, see Commentary following case 184, vol. 2, 296. Case 203, vol. 2, 318. NW600628; NW610601. See NW600928. This was Bréland’s first appearance on the bench. It seems likely from the circumstances recounted by the plaintiff that the defendant was the Métis buffalo hunter and leader best known to history as the military leader of the 1885 Northwest Rebellion. That Gabriel Dumont was born at Red River, and although his centre of gravity had moved westward by this stage of his career, he remained in contact with the settlement. The Nor’-Wester spelled this name “Fenille.” McLeod, who was the plaintiff’s employee, was reported in the newspaper as saying that the second cart “was suspended, partly on the scow and partly in the water, until we approached the opposite side of the river, where it upset, throwing all of its contents into the Assiniboine.” Blades. The ropes used to secure the scow to the mooring place while it was being loaded. McNab had also said, “Fenille was absent from illness, and his agents at the scow were mere boys.” NW600928.

Notes to pages 303–12 140

141 142 143

144 145 146

147 148 149 150 151 152 153 154

155 156

157

769

Among Dr Bunn’s many public responsibilities was chairmanship of the Public Works Committee. The Nor’-Wester report of the evidence of Bruce, who was a defence witness, reveals hard feelings toward Bunn: “He entered very minutely into various matters quite irrelevant to the point at issue, with the intention, apparently, of damaging Dr. Bunn. Seeing that he knew nothing of the circumstances of the case, and that his remarks were prompted by an animus to the Sheriff, the Witness was peremptorily ordered to leave the witness box.” See “Contributory Negligence,” in Walker (1980). Case 293, August 1865, vol. 2, 468. Patrice Bréland was the brother of new General Court magistrate Pascal Bréland. Whether the latter left the bench for the duration of this case is not known. Trams were the shafts of horse-drawn vehicles, suggesting that the defendant was in a buggy or cart. Note that this was an unsworn statement, not testimony. The Nor’-Wester account concludes, “But when half of the jurymen were paid off and had left the court, the French half announced that they had not concurred in the verdict handed in. Their intention was that the £6 should cover all. The other jurors not being found, the case was thrown over to another sitting.” NW600928. The matter was, in fact, never raised again in the General Court. Was the fact that the first jurors to receive their fees were the English-speaking ones a coincidence? Adjourned from case 187a, vol. 2, 299. See NW610201. The coroner’s inquest into this matter was reported on by the Nor’-Wester in July. NW600714. NW610201. This case and the previous one demonstrate the inconsistent practices that prevailed in designating the prosecuting authority. Note the varying currencies. Burgeoning trade with the United States brought American currency to Red River. Peas. The case was “nonsuited” rather than “dismissed” because none of the sworn testimony, even if entirely believed by the jury, established a factual basis for Fonseca’s legal claim. His own unsworn statement had no probative value. Editor’s deletion: “of the General Quarterly Court, this.” McKenney had sued Geddings for debt in case 182, vol. 2, 294. Although an informer’s personal motive would not directly invalidate his evidence, it could certainly undermine his credibility in jurors’ eyes. Took it to pasture across the river.

770

Notes to pages 313–18

158

Desertion from service under an employment contract was a criminal offence at the time.

Chapter Four 1 2 3

4 5 6

7 8 9

10 11 12

13

14

For a fuller account of social, legal, and governmental circumstances during this period, see volume 1, chapter 8. This session was not reported by the Nor’-Wester. “Toro” is an anglicization of “taureau,” which was “a strong bag made of buffalo rawhide sewn hair side out, used as a container for 90 pounds of pemmican” (Avis 1967). The editor is grateful to Dr Shirlee Anne Smith and Sally Nystrom for leading him to the meaning of this puzzling word. In money. The going rate. What probably happened here was that the defendant acknowledged his indebtedness but claimed he would not be able to pay for another two months, whereupon the court entered a judgment in favour of the plaintiff, giving the defendant two months in which to pay. The amount of the debt is not known. See note to previous case or Glossary. “Cattle” probably meant buffalo in this context. This was likely the famous French Halfbreed troubadour, whose musical accounts of events like the battle of Seven Oaks, Lord Selkirk’s capture of Fort William, and “General” Dickson’s Indian Liberation Army leven Métis history. He was a petty court magistrate at the White Horse Plains (see Peel 2000b). For the Nor’-Wester account of this session, see NW610601, but the report is perfunctory. This was Dr John Bunn’s last sitting. He died suddenly on 31 May 1861. See vol. 1, 178ff. The charge included stealing money from the HBC cash box and stealing various items of personal property from company clerk Joseph Fortescue. NW600628. O’Brian’s wife was separately charged with possession of stolen goods. See NW600628 and NW610601. Why the record is so seriously in arrears is not known. It cannot be attributed to deliberate suppression of the report, since the Nor’-Wester carried a full and timely account of the trial. The most probable explanations are either that Court Clerk Smith mislaid the report and added it to the session he was recording when he later found it, or that he did not make fair copies of his courtroom notes until long afterward and mistakenly copied this one out of order. Dr Bunn explained to the jury at this point that although the use of grand juries was infrequent in Assiniboia, it had been thought desirable to consult

Notes to pages 318–26

15

16

17 18 19

20 21

22 23

24

25

771

one in this case because Daniel O’Brian, a bugler with the Royal Canadian Rifles garrison who did odd jobs for the HBC in his spare time, would suffer a double penalty if convicted, losing his army pension rights in addition to whatever penalty the court might impose. NW600628. The same source indicates that O’Brian was represented by James Ross as defence counsel. Ross is not known to have had any legal training at this point in his life, but he was contemplating a legal career, and he was an unusually bright and articulate young man, who had performed brilliantly as a student at the University of Toronto. He would later return to Toronto for formal legal study and articleship. Joseph Fortescue was a well-connected young accounting clerk who was in charge of the cash box from which the theft took place. London authorities were very unhappy to learn that his “want of caution” had led to this loss, but added that they were “glad, however, to observe that he is chargeable with no worse offence than that of imprudence.” Fraser to McTavish, 20 June 1860, HBCA: A.6/35, fo. 105ff. He seems to have come to the accountant’s winter office at the Upper Fort from his summer office at the Lower Fort – which was presumably located there to be closer to the summer’s York boat and canoe traffic. A board used for playing checkers (draughts) or chess. According to the Nor’-Wester, the witness said there had been £118 in £1 notes, £6 in shilling notes, and £7 in gold and silver. NW600628. It took the jury about twenty minutes to reach that result. The trial had taken all day. After her husband’s acquittal, the charges against Mrs O’Brian for possession of stolen goods were necessarily withdrawn. The cash box thefts totalled £200.12.05. McTavish to London, 30 August 1860, HBCA: A.11/96, fo. 462. O’Brian, it may be remembered, was the man James Mulligan had unsuccessfully sued the previous year for tearing down the “wrong house” (case 178, vol. 2, 289). Mulligan seems not to have carried a grudge, however, since he was one of two sureties for Mrs O’Brian. He would, of course, have charged a fee for that service. The following comments are based on a combination of the court record and the foregoing newspaper references. A question was posed earlier about the basis for civilian jurisdiction over military personnel (see vol. 1, 98). This suggests that the military commander made the decision. McTavish to London, 28 April 1860, HBCA: A.11/96, fo. 423ff. He seems to have felt, however, that the investigation could have been more effectively handled. This style of cause is interesting for two reasons. Since it is clear that William Lane, an HBC officer, was in possession of the disputed horse on behalf of the company, one might expect the HBC to have been named. That it was

772

26 27 28

29

30 31 32 33 34 35 36

37

38

Notes to pages 327–32 not was probably due to the company’s desire to keep as low a profile as possible in disputed matters. And why was Lane the plaintiff? Should Delorme not have been suing him? Perhaps this was an amicable lawsuit, agreed to between the parties in order to establish ownership of the horse, and so framed to protect Delorme from possible costs. This must mean that it was the horse Saint Gris had sold to James McKay for the HBC. See NW610831. Although the Nor’-Wester published the day of this sitting reported that Governor William McTavish was “very unwell” and predicted that he would not be able to attend, he was not only present but very effectively so. NW610815. The newspaper’s next issue observed, “This was the first Quarterly Court since the death of the late Doctor Bunn, who always took the lead in the proceedings of this Court, and whose able and judicious management proved of so much advantage. In this case Mr. McTavish conducted the business, and did so very satisfactorily. In the absence of professionals, we are so far fortunate in having shrewd and upright men to administer justice between man and man.” NW610831. According to the Nor’-Wester, Sinclair may not in fact have been present. It stated on the day of the session that “Mr. Sinclair is off to York Factory.” Perhaps it meant, “is about to be off.” NW610815. The Nor’-Wester identified the plaintiff as “Anezime Manseau.” NW610815. Goulet was a surveyor, as well as being a member of the Council of Assiniboia. These terms of payment were decided upon because the defendant was “a very poor man.” NW610831. See NW611130. 6 August 1861. See “deodand” in Glossary. A “mixed jury” meant a jury composed of both anglophones and francophones. There is a suggestion in the Nor’-Wester’s account of this trial that Indians were sometimes included in the mixture: “The mixed character of our population occasions something else besides the confusion of tongues. Juries have to be comprised of suitable representatives of the parties at the bar – suitable not only as to station or calling generally, but as to race and language, whether French, English or Indian.” NW611130. No other evidence of Indian service on juries has been found. The recorded evidence of this and subsequent witnesses can be usefully compared to the account published in the Nor’-Wester. NW611130. While there are no significant inconsistencies, the newspaper version provides much added detail. See Commentary. According to the Nor’-Wester, this rather odd turn of phrase, spoken in either Cree or Saulteaux, was a challenge to sue over a longstanding dispute, “there” referring to the court. NW611130.

Notes to pages 333–8 39

40

41

42 43 44 45

46

47 48 49

50 51

52

773

Salt was produced in that part of Assinibioa by evaporating water from saline springs in salt pans. The dispute from which this tragedy sprang involved Chartrain’s alleged appropriation of a salt pan belonging to Monkman. See Commentary. Baptiste Chartrain, the prisoner’s brother, came along to Monkman’s home after the altercation, knowing nothing about it. His intentions were social, and he bore a bottle of very strong spirits. NW611130. The reference to “vial or bottle” in the evidence of this witness and McLeod’s earlier testimony that the deceased “commenced to suffer great pain” after being given a drink by Baptiste Chartrain relate to evidence at the coroner’s inquest that Monkman thought that, after being stabbed, he had been poisoned by the spirits Baptiste gave him. Not much seems to have been made of that allegation at the trial, although some evidence to that effect was repeated. The evidence of the next witness must have been thought to rule out the possibility. For a full report of the coroner’s inquest, which reached a finding of murder, see NW610831. The jury deliberated for forty minutes. NW611130. NW610831. Ibid. Sir George Simpson’s claim to the Select Committee of the British House of Commons that only nineteen cases of homicide had occurred during his forty-year governorship “may have been somewhat under the mark,” the Nor’-Wester said, “but not much.” Report of Select Committee, House of Commons (UK), 1857 (hereafter Select Committee Report). NW610831. While there is no proof that James Ross wrote this piece, its lawyerly analysis and style – coupled with the fact that, as the newly appointed sheriff of Assiniboia, it was Ross’s responsibility to bring Chartrain to trial – suggest strongly that he did. Oliver (1914, 296–306). NW611101. Oliver (1914, 296–306). Two and a half years later, a letter to the editor of the Nor’-Wester from “Lector” (almost certainly the new recorder, John Black), responding to a statement in a previous issue that criminals were “quite safe” beyond the 50 mile limit, explained this distinction clearly, adding that even fugitives who sought refuge in the United States could be extradicted under the terms of the Ashburton Treaty. NW640413. NW611130. Ibid. The author of the newspaper article considered this to be a sign that the non-Indian residents of the Lake Manitoba community who spoke Cree or Saulteaux were “deteriorating,” and observed that, in the words of Lord Durham, it was too easy “for a civilized man to relapse into barbarism.” For an explanation of the distinction between the common law categories of felony and misdemeanour, see “felony” in Glossary.

774 53

54 55 56 57 58

59 60 61 62 63 64 65

66 67 68

Notes to pages 338–43 The words “placed before” the grand jury, when contrasted with the expression “found by” the grand jury in the Chartrain case, may be confusing. It was the function of the grand jury, and no one else, to make the findings contained in the bill of indictment. As a practical matter, however, a draft of the document was prepared in advance by someone (the recorder if any; otherwise, perhaps the sheriff, the governor, another member of the court, or the clerk of the court), fitting the alleged facts of the particular case to the arcane language of model legal forms provided by Richard Burn’s Justice of the Peace or similar reference books. That draft was then “placed before” the grand jury to be confirmed, altered, or rejected by it on the basis of the evidence. If confirmed by it, in altered or unaltered form, the document was presented by the grand jury as its true bill of indictment and would become the basis of the prosecution before the petty jury. This name is spelled variously throughout the report, and both it and the co-accused’s name were spelled differently in the Nor’-Wester. NW611130. 16 September 1861. The “ill treatment” alleged was a severe beating. NW611130. See Commentary. According to the Nor’-Wester, Schubert claimed that the Indians also took “chairs, tables, pots, everything.” Ibid. The Nor’-Wester said he called it “a speech commencing with the year of the creation, going into universal history, and demanding a barrel of whiskey.” Ibid. The Nor’-Wester account indicates that the whiskey compromise was Amlin’s suggestion. Ibid. Ibid. NW610831. See Commentary to previous case. See next case. See final sentence of Commentary to previous case. Editor’s deletion: “and we talked.” Although those responsible for the invasion of his home were punished, and he was acquitted of the criminal charge against him, Schubert remained aggrieved because of the loss of his keg of whiskey, and subsequently wrote a letter to the editor of the Nor’-Wester seeking public compensation for that loss. NW620205. Although the newspaper supported his claim, there is no evidence that it was ever granted. Editor’s deletion: “costs.” There being no record of a former suit between these parties in this court, the costs referred to here must have involved a related suit in a petty court. The basis for this award is not at all clear. Although the plaintiff had claimed only 6 shillings for the costs of the previous proceeding, he seems to have been awarded 1 pound and 6 shillings; and while he had sought additional “damages” of 3 pounds, he was awarded nothing as “damages” but instead

Notes to pages 343–55

69

70 71

72 73 74 75

76 77 78 79

80

81 82 83 84

775

received additional “costs” of 2 pounds and 6 pence – a high sum for costs. The total award would therefore seem to have consisted of blended awards of damages and costs for both proceedings. In addition, the plaintiff appears to have been awarded three pieces of timber in kind. In marked contrast to its avid interest in the proceedings of the previous sitting of the court, the Nor’-Wester declined to report on this session, commenting that “none of ... [the cases] were of much consequence.” NW620305. Probably crossing the river by ferry in the witness’s presence. Although Canada had adopted decimal currency in 1858, this was almost certainly a reference to US dollars – an early instance of the increasing use of American currency in Red River transactions as commercial intercourse with St Paul and other US centres increased. Note the assumed exchange rate: $5.00 = £1. Editor’s deletion: “I heard Nash.” This was a claim that the defendant had taken from common grazing land a mare belonging to the plaintiff. Transport or drive across the river. Although it is not possible to be certain from this brief, confusing summary of the evidence, it seems probable that Schubert had sold the calf to the defendant, and that the plaintiff’s claim was based on an alleged sale to him by the deceased owner of the animal sometime before his death. The clerk’s note-taking was noticeably laxer than normal at this session. The Nor’-Wester did not report this session of the court. Editor’s deletion: “that.” Joseph Rolette was a prominent and colourful resident of Pembina, well experienced in both the fur trade and the cartage business, who maintained many commercial and familial contacts at Red River. He was an obvious person to send for when House’s wagon train was stranded by an early blizzard on the Minnesota plains (see Bowsfield 2000). An offsetting claim by the defendant. In modern practice, the term “setoff” is sometimes used to describe a countervailing claim arising either from the same transaction upon which the plaintiff’s claim is based or from a related one; and “counterclaim” is used for one – like Rollette’s here – that has a more distinctive origin. Editor’s deletion: “of the General Quarterly Court.” This killing has not been identified. See NW620830. The name of Thomas Sinclair, whose brother was probably the defendant in two cases that day, was originally included but then erased. This was John Black’s first session of the court after returning to the Red River Settlement. The title of “Recorder” attributed to him in the record was not technically accurate. By reason of his not being a fully qualified lawyer, he had been formally designated “Chairman” of the court rather than

776

85

86

87

88

89 90 91

92 93

Notes to pages 355–9 recorder. This distinction was overlooked in common usage, however, and Black was almost universally referred to as “Recorder” or “Judge” thereafter. More significant than Black’s presence, from a legal perspective, was Governor McTavish’s absence, since the court’s legal authority depended upon its constituting a “Governor and Council” within the meaning of the HBC charter. That meant that a governor must always sit with the court. At some point, the precaution was taken of appointing John Black as acting governor of Assiniboia for occasions when McTavish was not present, but it is not known whether that safeguard had yet been taken. The absence of Thomas Sinclair from this sitting of the court may have been explained by the fact that William Sinclair, the defendant in two cases, seems to have been his brother. The plaintiff confirmed Recorder Black’s supposition that the defendant was engaged to dispose of the goods “by auction or otherwise.” Although the plaintiff claimed that the defendant was to buy the goods himself if he couldn’t sell them, the latter denied this, and the jury did not accept it. NW620830. McBeath’s wife – the next witness – appears to have been William Sinclair’s daughter, and to have assisted her father in business matters. She and her husband lived with Sinclair. NW620830. This figure must have been arrived at by deducting the sum indicated (which totalled £12) from the claim of £20.09.06, by reason of the fact that eight of the twelve coats delivered remained unsold, and were to be returned to Bannerman. Those coats were presumably valued at 30 shillings rather than 36 shillings, because Sinclair was entitled to a markup of 6 shillings. What is difficult to reconcile with the court record is the Nor’-Wester’s report that the jury awarded £14, plus interest of £2.08.00. NW620830. Editor’s deletion: “that.” See Commentary. Although this addition is correct, the calculations upon which the component items are based are difficult to reconstruct without the additional information, provided by the Nor’-Wester, that seventeen animals were maintained for three days, and that two animals were maintained for one day only before they died. NW620830. Richard C. Burdick conducted Nicholas Courtelle’s case as the plaintiff’s agent. NW620830. This was the third of five actions brought over a period of twelve years by Nicholas Courtelle, an elderly and intermittently invalid man, concerning arrangements made by him with others to obtain permanent room and board from them in return for a transfer of all his property to them, plus working for them when able. See also cases 122 (1854), 162 (1859), 232 (1862), and 304 (1866), vol. 2, 236, 279, 357, 478. This hearing opened with a long debate among the members of the bench as to whether the case

Notes to pages 361–5

94 95 96 97 98 99

100 101

102 103 104

105

106 107

777

should even be heard. François Bruneau took the position that an arbitration ordered by the second hearing, and carried out five years previously, had already settled everything. Black and McBeath eventually ruled, however, that this new complaint should be considered by the court. As witness followed witness for the next several hours, they may have come to regret that decision. The case did not adjourn until 11:30 PM. According to the Nor’-Wester, the court endured “a fourteen-hours continuous sitting, without a moment’s furlough to breathe the fresh air, or a morsel to uphold frail nature.” NW620830. Bruneau would have left the bench to testify, leaving only Black and McBeath to adjudicate. Editor’s deletion: “of the General Quarterly Court held this.” The record erroneously states, “1863.” Richard C. Burdick, who represented Courtelle the previous day, also acted as agent for the plaintiff in this case. See NW621129. This case was, in effect, settled with the assistance of Recorder Black. The defendant acknowledged the debt, stated that he had no cash, and offered to pay in cattle. This offer was not initially accepted by the plaintiff: “I never promised to take cattle, and (looking to Bench) I don’t think I am obliged to do so.” Black agreed that he did not have to do so, but pointed out that if the defendant was unable to pay the court’s judgment, the plaintiff would ultimately have to execute upon the defendant’s goods, which would likely involve selling the cattle. “I would ... counsel a friendly adjustment of the matter among yourselves,” he concluded. NW621129. This case was prosecuted by Andrew Mowat, the informer – and the employer of the Indians involved. NW621129. The accused was represented by Henry McKenney, frequent litigant and soon-to-be sheriff. Recorder Black agreed to McKenney’s participation on condition that the accused, Pruden, agreed not to take part on his own behalf. NW621129. Referred to as “Young Grey Eyes” in the Nor’-Wester. NW621129. 6 pence. Mowat, who was the informer and prosecutor, was called as a witness by defence counsel McKenney. Mowat understandably protested this unusual move, but Recorder Black ruled that he was obliged to testify. NW621129. Middlemen paddled or rowed in the middle of the canoes or York boats, and were not considered as skilled as steersmen or bowsmen. Grey Eyes was a bowsman. See “middlemen,” “York boat,” “steersman,” and “bowsman” in Glossary. The newspaper version was blunter: “dressed like civilized people of the lowest classes.” NW621129. Ibid.

778 108

109 110

111

112

113

Notes to page 366 The same case is reported a second time, in slightly different language but with the same substance, at pages 416–17 as having been dealt with on the tenth day of this sitting, 2 March 1863. The Nor’-Wester indicates that it was heard the first day. That was probably while the grand jury was deliberating. NW630303. The case never returned to the court’s docket, suggesting that it was settled before the May sitting. The same case is reported a second time, in slightly different language but with the same substance, at pages 416–17 as having been dealt with on the tenth day of this sitting, 2 March 1863. The Nor’-Wester indicates that it was heard the first day. That was probably while the grand jury was deliberating. Ibid. See ibid. (indicated as NW630223 on page 1 of that and all subsequent issues up to and including NW630523. An extensive account by an observant and apparently objective bystander can be found in Hargrave (1871, 260–74). See also vol. 1, 182ff. Other accounts include Stubbs (1967, 147), Bumsted (2000, 127ff.), and Koenig-Sheridan (2003). The Nor’-Wester accounts, based on shorthand notes taken by Editor William Coldwell, are generally more thorough than the official records. While it should always be kept in mind that defence counsel James Ross, as a part owner of the newspaper, might have indulged in a little polishing here and there – especially of his own address to the jury – the assertion in Koenig-Sheridan (2003, 366) that he and Coldwell “later reworked” the transcript into a “literary reconstruction” is not supported by comparison with the official version. It seems to have been at this point that counsel introduced themselves: two for each side. Appointed as prosecutors by the public authorities were the late Dr Bunn’s two sons, Thomas and John. For the defence were James Ross and one Frank Larned Hunt – the latter being the first formally qualified lawyer to appear as counsel in a Red River court. Hunt was an American-trained lawyer who had been in the settlement for almost a decade, apparently farming in the vicinity of Maria Thomas’s parents’ home; but he does not seem to have practised his former profession at Red River before this. As it turned out, Hunt contributed very little to these proceedings either (“merely sitting at a table taking notes and, now and then, with a series of theatrical gesticulations, putting a question to a witness or addressing a remark to the Bench”) (Hargrave 1871, 271), content to let Ross take the lead. Both Ross and the Bunn brothers had considerable previous experience as untrained agents in the Red River courts, and all three performed admirably. When J.J. Hargrave arrived at the courthouse, a little late, to attend the trial, he was surprised to find that although “there was a considerable crowd collected about the entrances ... the room itself appeared very empty.” The explanation was that as Court Clerk William Smith, with “long white beard and a pair of spectacles,” was intoning this prolix legal document, with its

Notes to page 368

779

“very revolting series of details,” much of the audience had withdrawn temporarily “to signalize its sense of the impropriety of the whole business” (or perhaps its boredom?) (Hargrave 1871, 269). 114 Before the clerk read the indictment to the accused and asked him to plead, James Ross rose and made a preliminary motion: that another case – an alleged charge of perjury against the principal Crown witness (the subject of the alleged abortion attempt) – be tried first. Recorder Black replied that although he had received a letter from an individual informally making such a charge, he was aware of no such prosecution having been formally commenced. He accordingly rejected the motion. NW630303. Considerably later in the trial, it turned out that Robert McBeath, a member of the current General Court, had issued a summons against the complainant, alleging perjury in a disputed “oath” concerning the facts of this case (see pages 388-9). The summons was based on an unsworn complaint by one David Tait. NW630330. McBeath’s revelation did not have any further effect on this proceeding. 115 There were eight apparently successful challenges to proposed jurors – by which side is not known – before the jury was complete. NW630303. 116 After the jury was empanelled, Thomas Bunn made an opening statement to it, setting out in outline the evidence the prosecution expected to present. He then called his first witness, Maria Thomas. At that juncture, James Ross interrupted, raising a question that would be a sore point throughout – and after – the trial. The girl had been requested by Corbett, long before the charges were laid, to swear before a parishioner of his named John Taylor, who also happened to be a petty court magistrate, that Corbett “never did take undue liberties with me, nor have any carnal intercourse or connection with me at any time.” She had done so verbally, and this was the basis of the perjury charge that Ross had hoped would have been laid by then. He now tried to introduce the document directly into evidence in order to undercut any Crown evidence to the contrary. Black refused to accept it as evidence on the ground that it was never actually signed by the girl, and although it was sworn to verbally before Taylor, his legal authority to administer oaths was restricted to matters within the scope of his magisterial duties. Ross’s eloquent plea that although Black might be right in “precise law,” the settlement’s courts usually preferred “substantial justice” over “rigid form” was not accepted. Black also refused to be bound by his own recognition, on a previous occasion, of magistrates’ power to administer oaths outside court, saying it had been a matter of “private advice” given “in an entirely private capacity.” NW630303. Thomas and her mother later explained the circumstances of the oath in their testimony (pages 372 and 377). Although other Corbett supporters accused Black of unfairness in this regard, Ross, perhaps strategically, denied it in his address to the jury. Taylor was subsequently dismissed from the petty court because of the incident (Oliver 1914, 518–19).

780 117

118 119

120 121

122

123 124 125 126 127

128 129 130 131

132

Notes to pages 368–72 While testifying, Maria sometimes held her child in her arms (KoenigSheridan 2003, 369n9). Hargrave and Black both seem to have been favourably impressed by her performance during what turned out to be a day-anda-half ordeal on the stand: “[T]he judge in his charge afterwards declared she stood the searching interrogatories put to her from both sides with perfect consistency ..., and without confusion of countenance in the broad light which streamed upon the witness box. The nature of the evidence she gave was such as to give an air of strong probability to the truth of her tale” (Hargrave 1871, 270). “Mudded up.” NW630303. When Corbett was in England in 1856–57, he had undergone some studies in medicine at the Royal London Hospital (Stubbs 1967, 147). He professed some medical expertise thereafter, and seems to have acquired a supply of medications for treating his parishioners. “Little Polly (a girl employed about the house).” NW630303. The Nor’-Wester account makes it clear that there were two pairs of nippers – one dull and one sharp – neither of which she would let him use on her. Ibid. The newspaper report indicates greater initial reluctance on her part to go back, and mentions precautions taken to avoid being seen with Corbett, including approaching Taylor’s house separately. Ibid. She said that Corbett’s young daughter was with them on this trip, and that he had given the child rum in the hope that she would fall asleep. Ibid. The same money she said Corbett had given her earlier after intercourse. Ibid. She said the Bible was a gift from Corbett, and that he had cut his name off the cover to disguise that fact. Ibid. Mrs Leask was one of Maria’s sisters. Mapelton was where Maria’s parents lived. It was on the east side of the Red River, 15 or 20 miles north of the main settlement – a long distance from Corbett’s home at Headingley on the Assiniboine. Editor’s deletion: “he said.” Editor’s deletion: “that.” Frank Larned Hunt, who would be retained as Corbett’s ultimately useless “lead counsel” in this trial. Later testimony suggests that this is a reference to a scheme by Corbett to engage the Thomas family to produce boards and shingles for him without his wife’s knowledge. Her testimony about the oath, and about why she agreed to it, was reported much more fully in the Nor’-Wester: “[H]e told me he wanted me to swear for only one little thing. He said the Indian woman had been saying that I said I could kiss my master whenever I liked. I denied saying so. And instead of this one thing he made a whole paper of it ... I said I was sure I never

Notes to pages 372–6

781

told the Indian woman such a thing. And then John Taylor came with this paper and began saying it out, and I after him. When it came to the part that Corbett never had anything to do with me, I stopped. Corbett looked at me wickedly, and I went on. And when they gave me the Bible to kiss, I just rubbed it here (pointing to her chin) ... John Taylor told me it was not his fault – that Corbett wrote the document and he (Taylor) merely copied it off, that they might not know Corbett’s handwriting. When he was reading it at my place I told John Taylor that Mr. Corbett never wanted me to swear to that, and it was then John Taylor said it was not his fault.” NW630303. In cross-examination she explained rubbing the Bible on her chin: “As I did not kiss the Bible I thought it was not my oath ... I thought of rubbing the book on my chin to evade the oath ... I would have kissed the book if I had been merely asked to swear that what the Indian woman said was false.” NW630317. Taylor later testified that “[s]he did not stop in any part of the oath; did not hesitate or falter for a moment.” He did acknowledge, however, that she later told him, “Corbett frowned at her, and she stopped”. NW630330. It is clear from all accounts that, although literate, she did not sign the document. 133 She said Corbett had obtained this medicine from Dr John Schultz and that Corbett had given it to her: “outside his house when he gave me the £4.” She then went on to mention a legally insignificant but humanly vital part of her story that the court record omits: “I had a girl on the 3rd Jan. Mr. Corbett is the father of it.” NW630303. 134 Editor’s deletion: “of the General Quarterly Court.” 135 Editor’s deletion: personnel and style of cause. 136 Editor’s deletion: “he stated.” 137 James Ross’s cross-examination had begun by this point. The Nor’-Wester gave more details: “Mr. and Mrs. Corbett lived happily the first year I was there, but after that Mrs. Corbett always scolded Mr. Corbett. After she caught Mr. Corbett with me in the byre they began to disagree ... She came to the byre one morning after New Year and pulled open the door. We were in the stable – he was pulling me about.” Ibid. 138 “To the Judge: This was long after he lay with me in the bed.” NW630317. 139 This promise was conditional on her marrying Chamberlain. Ibid. 140 A fine wool used in high-quality fabrics. 141 She did admit that “[o]nce he pulled the blanket off my breast. Polly was up already then. He might have felt me about my breast, but nowhere else. He did not uncover me.” Ibid. 142 “I told her that Mr. Corbett said it was because I got sick there. I said at one time that I fell in the river when I was rafting ... The time he was down at Mapleton Mr. Corbett told my mother that on account of the injuries I received by falling into the water, the Bishop said he arranged it that Mr. Corbett should pay me 10s. a month – no matter how long I was ill.” Ibid.

782 143 144

145 146 147 148 149 150 151 152 153 154 155

156 157 158

159

160 161 162 163

Notes to pages 376–81 She did admit once joking with Corbett and Fidler about taking the latter into her bed. Ibid. Before adjourning, Recorder Black asked some concluding questions, to which the witness responded, “I swear that Corbett never used any instrument on me at any other time than the day Whitford called. I did not put my name to the paper John Taylor wrote out; don’t remember him asking me to put my name to it.” Ibid. Editor’s deletion: “of the General Quarterly Court.” Editor’s deletion: case name. Because this testimony was partly in Cree, James McKay acted as interpreter. She was “going on 17 years.” Ibid. The witness “heard four shrieks, and was so frightened that she fell down and fainted.” Ibid. Editor’s deletion: “and.” Exclamation mark in original. The newspaper reported the witness saying, “He said yes – he sent me down to try to keep it quiet.” Ibid. Sic. Maria did not sign the statement. Although Ross cross-examined Mrs Thomas very vigorously, he does not seem to have shaken her evidence significantly. Ibid. Maria’s sister Betsey. Mapleton was a community in the St Andrew’s area near Lower Fort Garry, but on the opposite (east) side of the Red River. Being considerably north of the main settlement, it was a rather long journey from Corbett’s home at Headingley, west of the settlement on the Assiniboine River, to the Thomas home. The medical testimony was given in camera, and therefore was not reported in the newspaper (Hargrave 1871, 272). Editor’s deletion: “that it.” It was perhaps the Crown’s contention that Corbett had administered morphia to the girl on the occasion when she alleged he had had sex with her in her bed. It may have been at this point, or a little later, when the “lead” counsel for the defence effectively threw in the towel. According to Hargrave (ibid.): “Mr. Hunt’s attendance at the trial ceased, I think, at the time the medical evidence was closed. It was reported outside that during its progress he removed his seat from within the bar to a stove at the other side of the apartment where, with his feet comfortably perched on a level with his chin, he occupied himself in whistling.” Editor’s deletion: “of.” Editor’s deletion: “or.” Editor’s deletion: “Mrs. Fidler.” The witness did not see the dress during the road sighting but on another occasion. NW630317.

Notes to pages 381–5 164 165 166

167 168 169 170 171 172 173 174

175

176 177

178 179

783

Donald Gunn Jr. Ibid. This comment was presumably made with sarcastic intent. This comment followed a discussion of youthful marriage, in which the fact that “there are many young people coming into the world without fathers” was deplored, and Berston was asked “if he thought Maria would make a good wife.” Ibid. It was after this occasion that the witness noticed the flattened hay. Ibid. At this point, the witness spoke apologetically to the jury about having to give evidence against his friend, but Recorder Black cut his apology short. Ibid. Taylor later claimed that Bishop Anderson had sent Corbett a message advising him to flee. NW630330. James Ross objected that Gowler’s evidence about Favel was hearsay, and Recorder Black agreed. NW630317. The witness mentioned to Corbett that he had seen the Bible. Corbett suggested that Maria had stolen it. Ibid. In the Nor’-Wester version of Sayer’s account, Maria’s return was more hesitant and less abrupt. Ibid. Jokingly. Taylor, one of Corbett’s neighbours, was a twenty-nine-year-old schoolteacher – the first at Headingley. He was an active Anglican layman and (despite his youth) a magistrate. Although his questionable actions in relation to this case would tarnish his reputation in some eyes – and would lose him his magistracy – he was destined for a long and successful public career in Manitoba. In his address to the jury, Ross regretted that Taylor “did not give his testimony with that fluency and freedom which he would have done had he not been alarmed by the judge’s hint [early in the trial in relation to Maria’s ‘oath’] of possible ulterior proceedings.” NW630413. Sic. She never signed. At about this point, James Ross put a request to Judge Black that could not have comforted the witness. He asked the recorder to “put the Witness upon his guard,” adding, “The note of warning sounded at the commencement of this trial entitles the Witness to exercise his privilege of declining to reply if he thinks that by answering he might criminate himself.” A long palaver about the legality of Maria’s “oath” then ensued, during which jury foreman Alexander Sutherland said the jury recognized it; Black declared that, being unsigned, “[i]n the eyes of the law it is no oath.” Ross retorted that although it might not be sufficiently valid to support a charge of perjury, it was “virtually and morally an oath,” such that it could be used to impugn the girl’s credibility. NW630317. Emphasis in original. “The Judge: ‘A witness has sworn that you were sent down to keep it quiet.’ Witness: ‘That is a misrepresentation.’” Taylor did admit, however, that he

784

180

181 182 183

184

185 186 187 188 189 190 191 192

193

194 195 196 197

198

Notes to pages 385–90 advised Mrs Thomas not to “blaze it abroad,” and that he gave her some money of his own to help with the confinement expenses. Ibid. Reverend James Hunter, Anglican archdeacon, whose involvement in this case is thought to have frustrated his expectation of succeeding David Anderson as bishop. Editor’s deletion: “of.” Anglican cleric William Henry Taylor. “John Chamberlain ... objected to be sworn because ... he had broken his temperance oath, and because he had been entrapped ‘on the sly’ into becoming a witness. The Judge ignored the objections. He was finally sworn.” NW630330. Although both John and Maria agreed to marry during the walk, Maria wanted to speak to her parents; and John, who seems to have begun cooling rather quickly, took no further initiative. Ibid. Editor’s deletion: “for.” The Nor’-Wester names the witness as “Rev. William Taylor.” Ibid. Bumsted (1999b, 247) calls him “William Henry Taylor.” Editor’s deletion: “the.” This hearsay evidence about Mrs Taylor’s communications with Corbett may have been permitted on the ground that she was the witness’s spouse. “The recommendation was pressing; money was offered to assist him off.” NW630330. “It made me tremble to hear her swear to what she did!” Ibid. “I am certain it was not Mrs. Corbett in the carriage.” Ibid. Besides confirming that Fidler’s cross-examination was under way by this point, this statement suggests that James Ross’s business activities included “solicitor-type” legal work and probably moneylending. These were the charges referred to at the start of the proceedings (note 114 at page 368) that related to the girl’s “oath” before John Taylor. It is not known whether McBeath, a member of the court, returned to the bench after his testimony. Although his evidence was basically formal, his unjustified assumption that the allegations were true could have compromised his objectivity. “Witness seemed very much agitated.” NW630330. The complaint had been laid with Bishop Anderson, but Thomas swore legal information before Magistrate Thomas Sinclair the following day. Ibid. “She said nothing about Corbett attempting to produce her miscarriage.” Ibid. This was hearsay of the most inadmissible kind – except possibly for the peripheral purpose of impeaching Taylor’s evidence. Ross, for some reason, did not object or point this out. At the end of his testimony, Hunter “(who was shedding tears) asked as a favor that he might be allowed to read his official letter to the Bishop

Notes to pages 390–6

199 200 201 202

203 204 205

206 207 208

209 210 211

212

213

785

notifying him of his ... visit to Thomas’s. He wished to read it to show that he did not cherish the feeling against Corbett which was attributed to him by many in the Settlement.” The newspaper account then quoted verbatim Hunter’s report of his examination of Maria and her parents, including his assessment that the girl “gives an open and unwavering account of the whole of this most painful business.” Ibid. This transaction was “last winter,” and nothing further was owing for it. Ibid. This was a chest examination on an unrelated occasion. Ibid. Schultz operated a pharmacy in association with his medical practice. “Tincture of iron would not at all, I think, be effective to produce abortion ... An overdose would produce a good deal of irritation of the stomach.” Ibid. The third volume of court records begins here. Ibid. He had said so earlier in his address. His denial of a “political conspiracy” in this case was highly significant, since his client would always claim to have been framed by the Hudson’s Bay Company because of his public opposition to HBC government. Ross himself was still well regarded by both company and settlement authorities at this point, and his disclaimer might well have reflected a desire to maintain those good personal relations. NW630413. At one point, he even volunteered evidence on behalf of the absent Frank Larned Hunt. Ibid. NW630330. Ross later somewhat spoiled the effect of this clever speculation by exaggeration: “The fact is, gentlemen, that Maria could lecture to you on medical subjects for days together.” NW630413. The Nor’-Wester account of the address (undoubtedly edited by Ross himself before publication) was continued in the next issue. NW630413. Editor’s deletion: “the.” “Witness cannot exactly remember how often he lay with her – did not keep count, not knowing there was going to be this trouble about it (laughter). It was five or six times anyhow ... Cannot perhaps remember where each time ... Lay with her anywhere he could find it convenient (laughter).” Ibid. “The last time ... he said Witness was the only one ever came round her yet, and Witness thought to himself: ‘Well if I am it was not very hard’ (laughter).” Ibid. Sharp’s cross-examination by Thomas Bunn, which was much longer than indicated here, seems to have tripped up the witness more than once. When Ross objected that it was embarrassing and concerned irrelevant matters, Judge Black replied, “The questions are certainly irrelevant to the business with which the Court is directly dealing; but they are relevant enough to the question of the Witness’s veracity.” Ibid.

786 214 215 216

Notes to pages 396–403

To the lower settlement. NW630427. “This conversation took place after Mr. Corbett left the prison.” Ibid. “[S]he said the Sioux had come into the Settlement, and had burned down James Mackay’s house ... Mrs. Corbett, she said, was at Rev. Mr. Chapman’s, raving mad, because the Indians had taken one of her children and the servant maid.” Ibid. 217 “He told me that one night himself and Maria threw the little girl (Polly) out of the bed and gave her a blanket to lie on.” Ibid. 218 On a previous occasion. Ibid. 219 Recorder Black, in his charge to the jury, stated that Favel “sunk and quailed” under cross-examination, “literally subsided in the box.” NW630523. 220 This may have been the second exodus to Oregon that James Sinclair organized and led in 1854 (Lent 1963, 234). 221 This garbled sentence seems intended to say that because Corbett did not then employ as many men as he later did, he would often go to the byres to assist the witness. 222 Editor’s deletion: “Last summer about hay time.” 223 Another example offered was: “She wanted my black shawl to go to the funeral of her sister who, she said, died in childbirth. Witness rather believed her at the time.” NW630427. 224 “Whitford was not at Corbett’s on the 13th June, because Whitford and Witness left together for St. Paul’s on the 12th June.” Ibid. 225 Maria “appeared to be in good health, and moved about smartly and actively; did not strike me that there was anything the matter with her.” Ibid. 226 While this evidence may have undermined Mrs Thomas’s credibility as to her own knowledge, it also corroborated Maria’s evidence concerning the actual charge – attempted abortion – against Corbett. 227 To get away from the Corbetts, he said, “Maria told her mistress that my wife had sent for her.” Ibid. 228 When Recorder Black began to ask this witness whether he would accept the oath of certain previous defence witnesses – something James Ross had been doing frequently concerning Maria’s oath – Ross objected strenuously. Ibid. 229 The following several pages, having been mislaid by Court Clerk Smith, were inserted in the court record following the verdict and sentence. They have been placed in proper chronological sequence in this edition. The pagination is therefore temporarily somewhat disjointed. 230 “Doggy” was a derogatory family nickname. The Nor’-Wester reports mention several witness references to “Maria Doggy.” 231 Editor’s deletion: “in.” 232 Editor’s deletion: “she.” 233 The Nor’-Wester version was much more helpful to the defence: “From the time my child was born till Maria left ... Mrs. Corbett was not at my place alone.” NW630512.

Notes to pages 403–6 234

235 236 237

238 239 240 241

242

243 244

245

787

A curious interlude occurred at this point. When Ross called David Tait as his next witness, Black remarked that because Tait was one of Corbett’s bail sureties, he was not strictly qualified to be a witness. He would nevertheless allow Tait to take the stand because to refuse might be unfair to Corbett and because he had previously allowed another surety – Reverend Chapman – to do so. Ross, however, insisted on not calling Tait after all. Ibid. “Maria was then 13 or 14 years old ... Mr. Setter (Juryman) I remember Mr. McKay stating something to me about this.” Ibid. This probably means “ran out.” Ross was scraping the bottom of the evidentiary barrel here – as he was with the other evidence about the reputation of the Thomas family generally – and Mowat was clearly an unenthusiastic participant. He testified that the incident with Maria’s sister had occurred six years previously, that Thomas Thomas had “worked very well,” and that Simon Thomas was “honest.” Ibid. The newspaper report of this allegation is equally opaque. Ibid. “He made me understand he was going to Headingley.” Ibid. See note 229 for explanation of irregular pagination. Rebuttal evidence by the prosecution after the close of the defence evidence, whether from former or new witnesses, was entirely proper. Bumsted (2000, 145) has criticized James Ross for allowing the case to end on such a high note for the Crown, but Ross, having closed his own case, had no power to prevent it. He did, however, cross-examine Sayer strongly: “‘Why did you not mention it ... [when you were on the stand the first time]?’ The Witness paused and hung down his head.” When Black intervened to assist Sayer with the remark “‘[t]he Witness was sworn to tell the whole truth insofar as he was asked[,]’ Ross snapped that he ‘would decidedly object to such remarks from the Bench. The Witness was able to speak for himself ...’ After which Sayer, picking up the cue, said: ‘I did not mention it because I was not asked.’” NW630512. It must never be forgotten, of course, that James Ross was a part owner of the newspaper that reported the exchange. The newspaper account of Sayer’s new evidence was considerably fuller than that of the official record. NW630512. He claimed under cross-examination that it was his own idea to come back to the stand – because “they called me a liar here.” Editor’s deletion: The verdict and sentence as recorded at the end of the seventh day’s record. Ibid. Because the newspaper, perhaps understandably but in sharp contrast to its treatment of the defence address, offered only a severely truncated report of the Crown’s address, the entire Nor’-Wester report of it is quoted. Ibid. Since the court record does not include the contents of Black’s charge, portions of the Nor’-Wester’s account will be presented. That account appears to be complete, but it will be necessary to reduce it here to extracts and paraphrases.

788 246

Notes to pages 406–9

This was unfair: all that Ross had conceded in his address to the jury was that the company had not conspired against Corbett. He had left open the possibility that the family might have done so. 247 The application of contemporary English legislation could be considered a serious error since the current Laws of Assiniboia, adopted in April 1862, preserved the date of Queen Victoria’s ascension in 1837 as the date English Law was adopted by Assiniboia; and some even doubted the local council’s authority to alter the supposed original charter reception date of 2 May 1670. Assuming 1837 to be the correct point of reference, the error was a crucial one – since if only attempted abortion of a quickened fetus was criminal, Maria would not have reached that stage of development by the time, 25 June, of even the last actions alleged in the indictment. Only by the view that the charter had always made contemporary English law applicable to Rupert’s Land, and could not be overridden in that respect by local laws, could reliance on the 1861 statute here be justified. It was no doubt with that concern in mind that, on 7 January 1864, Recorder Black and Governor McTavish caused the Assiniboia council to adopt English law in ongoing form (Oliver 1914, 534–5). Of course, that amendment was much too late to affect the outcome of this trial. 248 NW630512. Most of the rest of Black’s charge was reported in the next issue. NW630523. 249 More than four hours (Hargrave 1871, 273). The Nor’-Wester said five hours. NW630523. 250 “The Foreman of the Jury, Alexander Sutherland, who, until chosen Juryman, had been a warm partisan of the Prisoner, trembled so violently as to be unable to speak, and in reply to the formal questions, handed a paper to the bench on which the verdict was supposed to be inscribed. The paper was declined, and he was required to read it.” His doing so “tremulously” produced “profound sensation in [the] courtroom.” NW630523. 251 It was not actually as simple as that. Hargrave (1871, 273) says, “In reply to the questions addressed to him, Mr. Corbett declined to recognize the authority of the Court, and produced the Blue Book containing the evidence laid before the Commons’ Committee of 1857 to support him. His arguments were all heard and met. Finally, he said that nothing remained but to throw himself on the recommendation of the Jury, and assure Judge Black that he was as innocent of the crimes imputed to him as that gentleman himself.” The Nor’-Wester version of what may have been the same conversation was as follows: “Rev. G. O. Corbett: I am innocent of the charge laid against me – as innocent as your honor; and I desire to appeal to England for a new trial. The Judge: There can be no new trial; nor has there ever been an appeal in a case of this kind. Rev. G. O. Corbett: I may be mistaken, but the Company’s Charter seems to speak of an appeal to England. (He then handed in a copy of the Charter). After examination, the Judge

Notes to pages 409–13

252 253 254 255 256 257

258 259 260

261 262 263 264 265 266 267

268 269 270

789

observed that it appeared to refer merely to matters connected with the fur trade.” NW630523. Neither interpretation was correct. Considering that the maximum sentence under the statute was penal servitude for life, this was a light sentence. “The Court generally sat till the evening was well advanced” (Hargrave 1871, 270). Ibid., 260ff. It was known, after all, that he had been advised to flee by some friends and colleagues and had been offered money to make that possible. Oliver (1914, 522–7); Hargrave (1871, 280–9). The latter source is especially helpful. Strictly speaking, Assiniboia governor William McTavish could also have granted the relief sought, but Dallas was exercising his priority as senior governor at that point. NW630602. Ibid., 285. The venerable jailer was a gentleman by the name of Antoine Grouette. Recorder Black, in his charge to the grand jury at the next sitting of the court, in May, explained that although the sheriff had the legal authority to commandeer special constables, this recruitment was by “invitation,” and that although it produced a “considerable number” of volunteers, the time was too short to recruit all who would otherwise have offered their services. NW630602. Hargrave (1871, 287). Oliver (1914, 523). Ibid., 525. The magistrates in question were Robert McBeath, François Bruneau, Thomas Sinclair, and William Cowan. Ibid., 524, 526, emphasis in original. Ibid., 526. NW630512. For a somewhat different assessment, see Pannekoek (1991, 210): “Red River split into irreconcilable anti-Corbett and pro-Corbett factions. The first included most of the clergy, the Bishop, and the Métis, who disliked Corbett’s anti-Catholicism; and the second the poorer Halfbreeds.” Even by that assessment, the portion supporting Corbett was much smaller and much less influential than the portion opposing him. Also remember that the Thomas family and their supporters were themselves “poorer Halfbreeds” and that prosecutors Thomas and John Bunn were influential English Halfbreeds. NW630602. Ibid. It is possible that there were other denials in parts of the letter that Black did not read, but that seems highly unlikely. The co-editor of the Nor’-Wester,

790

271 272 273

274 275 276

277 278 279 280 281 282

283 284 285 286

Notes to pages 413–16 in which the report of the letter was made public, was Corbett’s counsel, after all. See, for example, Bumsted (2000, 127ff.). That expression is not intended to include Frank Larned Hunt, whose occasional interventions from the sidelines provided only comic relief. There was an allegation that the jurors were warned that they would be paid more for a guilty verdict than for an acquittal. NW630512. The following issue of the newspaper published a semi-retraction of that story, however, including a juror’s assertion that the jury verdict was not affected. NW630527. In his charge to the grand jury at the next session of the court – May 1863 – Recorder Black offered a plausible explanation. Previous to this trial, he said, jurors had not been paid at all. During the trial, it had been decided by the authorities, because of its great length, to pay them 2 shillings and 6 pence each; but it was not initially clear whether this would be a daily fee or a per session fee. As a result of the uncertainty, jury foreman Sutherland got the impression, and announced to his colleagues at one point, that the fee would only be paid on a daily basis if the jury brought in a guilty verdict. In fact, Black said, the decision to pay by the day was made before the jury retired. NW630602. William B. Caldwell, quoted in Select Committee Report, 301, Q. 5438. NW630303. The same article acknowledged, however, that many of Corbett’s supporters believed Black had not acted fairly in the case. Ibid. The fact that the third high-performing “black head” advocate, James Ross, was not identified strongly indicates that he was the author of these remarks. The “new feature” referred to was not the participation of agents, who by this stage frequently represented parties in court, but their “formal employment pro and con.” Presumably their employment for fee, their professional demeanour, and the fact that both sides were effectively represented, were the factors Ross had in mind. Much of the following information about Corbett’s post–Red River years is taken from Boreskie (2000) and Bumsted (1999a, 56). See vol. 1, 226ff. NW690327. McKay to Taylor, 12 May 1869, HBCA: A.11/99, fo. 56. Hargrave to London, 29 May 1869, HBCA: A.11/99, fo. 68. McTavish to London, 24 June 1870, HBCA: A.11/99, fo. 200–1; Black to Smith, 18 August 1870, HBCA: A.11/99, fo. 10: Smith to London, 17 September 1870, HBCA: A.11/99, fo. 275: Smith to Smith, 5 November 1870, HBCA: A.6/44, fo. 170–1. McTavish to London, 24 June 1870, HBCA: A.11/99, fo. 200–1. MAN710923. Boreskie (2000). Hargrave (1871, 277–80).

Notes to pages 416–22

791

287 Ibid., 347. 288 Bumsted (1999a, 115); Winnipeg Free Press, 22 November 1903. 289 Hargrave (1871, 287). 290 Koenig-Sheridan (2003). 291 The same case is reported earlier, in slightly different language but the same substance, as having been dealt with on the first day of this sitting, 19 February 1863 (vol. 2, 366). 292 The same case is reported earlier, in slightly different language but the same substance, as having been dealt with on the first day of this sitting, 19 February 1863 (vol. 2, 366). 293 Regrettably, the Nor’-Wester did not report the cases that followed Corbett at this sitting of the court. The nature of the felony involved thus remains unknown. 294 Why a grand jury indictment was considered appropriate for such a relatively unimportant case is difficult to imagine – unless it was thought that the grand jury established for the previous two cases might as well be put to use. 295 See Glossary. 296 Farted. 297 “I fart on Mr Gallerneau.” 298 See NW630602. 299 This young woman had been convicted of a similar offence in December 1859, when she was only fifteen, and had received a lenient two-week jail sentence (case 173, vol. 2, 287). 300 The grand jury members were: Donald Gunn (foreman), Salomon Amlin, Pierre Gladieu, Baptiste Lépine, Pierre Ayot, Baptiste Bruce, Baptiste Berar, Louis Carrière, Thomas Bunn, Henry Cook, Hector McKenzie, Hugh Matheson, George Sutherland, Richard Pritchard, and John Matheson Sr. Recorder Black’s charge to the grand jury included an explanation that burglary involved breaking and entering a dwelling or related space at night (between 9:00 PM and 6:00 AM). NW630602. The charge also commented extensively on the aftermath of the Corbett case at the February 1863 sitting; see Commentary to case 238, vol. 2, 409. 301 Recorder Black described Bunn as a “young lad” in his charge to the grand jury. NW630602. 302 Although the evidence of Henrietta Salter might have been consistent with a completed rape, only attempted rape was charged. Because the penalty for rape, once death, was penal servitude for life (ibid.), there was often a reluctance to charge it, but whether that was a factor here is not known. 303 A child witness could not be formally sworn, but was allowed to testify if the court satisfied itself by questioning the child that he or she understood and accepted the need to be truthful. 304 This was not entirely correct. In Public Interest v. Atasawapeh, tried in 1841, before the earliest surviving court records – but while Black was serving as

792

305 306 307

308

309 310 311 312

313

314 315

Notes to pages 422–6 court clerk – the court imposed hard labour for manslaughter. What form the labour took at Red River is not known, but during the prisoner’s banishment at York Factory, it involved picking oakum (see vol. 1, 69ff.). In R. v. Corbett, case 238, vol. 2, 366, the imprisonment imposed was “without labour,” which would suggest that the possibility of hard labour had been considered but rejected – perhaps in consideration of the jury’s recommendation of mercy. NW630602. See, for example, Black’s comments in case 248, vol. 2, 434, cited in Commentary thereto. As the Nor’-Wester reported, this was another case where effective amateur advocacy was employed on both sides: “M. Riel conducted his own defence, and did it with great skill; M. Nicholas Moulard conducted the case for the Prosecution [Plaintiff], and evinced considerable tact and ability. M. Moulard’s address to the Jury was much admired.” NW630602. This was probably the Ambroise Lépine who later served as adjutant general in the Provisional Government of the defendant’s son, was found guilty of the murder of Thomas Scott, and was sentenced to death, the sentence being subsequently reduced to two years’ imprisonment. Editor’s deletion: repeated words. This must have been the Louis “David” Riel famous to history; the significance of the “A.” is unknown. The court ruled that the parties should bear their own costs. NW630602. See NW630902. The composition of the court, which was omitted from the official record for the first time, was reported by the newspaper as “Recorder Black, R. McBeath, F. Bruneau, and Dr. Cowan.” The jury foreman was “J. Sutherland.” This is the beginning of a long dispute over the boundaries of properties bordering the intersection that came to be known as Portage and Main. The Nor’-Wester listed the style of cause as “John Fraser v. W. Drever,” Fraser being the relevant superintendent of roads. The newspaper also reported that Fraser and Drever “conducted their own cases.” Relevant subsequent proceedings were cases 328a (August 1866), 328b (November 1866), 328c (February 1867), and case 376 (November 1867), vol. 2, 497, 500, 502, 524. A faggot road, later called a “corduroy road,” was composed of logs (faggots) laid side-by-side across the right-of-way to assist passage over swampy areas. “Mr. A. G. B. Bannatyne ... did not believe that the fence was ever an obstruction to the road; it had been this way for 17 years or thereabouts. Mr. McDermot put up the fence.” NW630902. Andrew McDermot was Bannatyne’s father-in-law and another of those who owned property near Portage and Main.

Notes to pages 426–31 316 317 318

319 320 321 322 323 324

325

326

327

328 329 330

331

332

793

Hallett’s evidence is reported much more fully and rather more usefully in ibid. The newspaper version of McDermot’s evidence is even fuller and more helpful than Hallett’s. Ibid. Goulet’s evidence, also more extensively and understandably reported in the press than in the record, was translated from French to English by Joseph Rolette. Ibid. “[F]rom his bakehouse we started from a place where it appeared to be an old fencing.” Ibid. Ibid. Ibid. See vol. 1, 198. James Ross appeared for the defendant. NW630902. This confusing account becomes only slightly more clear in light of the Nor’Wester summary, which states that the defendant admitted owing £22.08.05 and that “[t]he Jury gave Plaintiff £22.08.05, and made him pay costs of the suit.” Ibid. See NW631125. The Nor’-Wester reported that the court consisted of “Judge Black ..., Dr. Cowan, and Messrs. Bruneau and McBeath as associates,” adding that “Dr. Schultz represented the Sheriff.” Sheriff Henry McKenney, who was Schultz’s half brother, must have been unavailable that day. “Andrew Harkness acted as Interpreter. Mr. James Ross appeared for the Plaintiff, and Mr. Garratt for the Defendant.” NW631125. D. McDougall took over as interpreter part way through Goulet’s testimony. The much fuller newspaper report indicates that when Goulet first spoke to House at the Red River Settlement, the latter volunteered that the shipment included liquor, and that Goulet’s first response was to charge import duty rather than to seize the liquor. Subsequently, however, Dease, who had also returned to the settlement, told Goulet what had happened at the border, causing Goulet to resort to confiscation instead. Ibid. The newspaper identified this witness as “Lawrie Gourneau.” Ibid. According to the newspaper story, the man in question refused to give a receipt, so the witness brought the goods on to the settlement. Ibid. The newspaper identified this witness as “Peter McClarty.” The witness acknowledged that he was one of the men who refused to give a receipt to Gourneau. Ibid. “in 16 gallon kegs.” Ibid. This witness does not appear to have been involved in House’s shipment but rather to be describing his own use of similar packaging practices. “This liquor was boxed up for the same reason as my powder was boxed up: that it should not be exposed to the present unprotected state of the route. When the liquor reached my place, I informed the collectors of it, telling them it was liquor in the boxes. The party bringing the liquor was

794

333 334

335 336 337

338

339 340 341 342 343 344

345 346 347 348

Notes to pages 431–8 not told what it was – it was none of his business.” Ibid. Presumably, the witness believed that attractive goods like liquor and gunpowder would be less susceptible of theft – including by the carrier – if packaged in a disguised fashion. The reason Marion gave for not stopping at Pembina was that he “did not get a receipt.” Ibid. If this rendezvous was, as he said, “three miles below Pembina,” it was unquestionably in Assiniboia, although the customs station might possibly have been farther north. Although this fact, plus the secluded location of the site, may seem suspicious to a modern reader, it did not appear so to the court or jury. Ibid. Recognizing that Genton was awarded no more than Paul had offered him, the Nor’-Wester reported, “Verdict: Defendant not liable.” NW631125. The court consisted of Recorder Black, Dr Cowan, and Messrs McBeath and Bruneau. Sheriff McKenney was still replaced by an acting sheriff, presumably Dr Schultz. NW640218. Prosecution by way of information was a less formal process than charging by indictment, and usually indicated a less grave crime. In this case, however, the charge – theft of an ox, sled, harness, and two heifers from the HBC –- was more serious than the second charge against the same accused (case 249), in which only a single ox was stolen. Ibid. Yet an indictment seems to have been preferred there. Anticipation of a guilty plea may explain the simpler procedure here. Ibid. Note the similarity of Black’s comments in case 252 the following day, in regard to setting fires on the prairie. See discussion of Black’s views on hard labour in Commentary following case 242, vol. 2, 422. This evidence was probably called to negate a claim by Fielding that the ox had come to him from Vincent via Fielding Sr. Added to the three months already served awaiting trial, this brought the total sentence to one year. NW640218. This prosecution was brought in the name of the constable involved rather than of the “Public Interest,” perhaps so that he could receive an informer’s fee. James Ross represented the accused. NW640218. This was probably an empty bottle, to be filled with rum at the HBC store. Green seems to have been working for Schultz at the time. Note James Ross’s objection to such a fine reduction in the next case, where he was counsel for the prosecution rather than for the defence. Ibid. James Ross represented the prosecution in this case, which suggests that settlement authorities had either relented somewhat in the displeasure that

Notes to pages 439–55

349

350

351 352

353 354

355 356

357 358

359 360 361 362 363

364 365

366

795

had led them to dismiss Ross from all his official duties two years previously, or now thought his forensic skills justified overlooking bygone differences. Although evidence was not usually called after a plea of guilty, it was probably done here to assist in determining an appropriate penalty. See Commentary. “Mr. Ross, the Prosecuting Counsel, rose at this stage, and complained of the system introduced at this court of lowering the fines imposed by the local law. He argued that the Court had not the power to do so; but his objections were overruled.” NW640218. Ibid. See NW640531, which reported that the court sat with its usual complement of judges: Black, Bruneau, McBeath, and Cowan. It reported only on cases 256 and 258, and dealt perfunctorily with the latter. Although it was a busy three-day sitting, there were no criminal cases at this session. When that also happened at the next session, the fact was celebrated by a “maiden assize” ceremony. NW640818. Editor’s deletion: “I.” “Mr. J. Ross appeared for the Plaintiff,” and William Lane, who was described as the “Hudson’s Bay Company’s agent” in the matter, conducted his own defence. NW640531. Editor’s deletion: “and.” The Nor’-Wester reported the plaintiff’s name as “André Berar.” He was represented by John Bruce. James Ross appeared as counsel for the defendant. NW640531. The judges were Black, Bruneau, Sinclair and McBeath. NW640901. This was the second “maiden assize” (a court session with no criminal cases on the docket) in a row, and the recorder was accordingly presented by Sheriff McKenney with the customary pair of symbolic white gloves. NW640818. A struck-out entry indicates that the costs portion of this was 11 shillings. NW640901. Editor’s deletion: “the Bench cannot ascertain whether.” The case never appeared on the court docket again. Although this was a default judgment, there is no indication that the plaintiff’s damages – proof of which is essential in such cases – were ever proved. That oversight may have been the basis for reopening the case at the next court session (case 266b, vol. 2, 454). Black, McBeath, Bruneau, Sinclair. NW650217. “Mr. A. G. B. Bannatyne conducted the case on Bird’s behalf, and Mr. Garratt appeared for” the defence. Ibid. The Nor’-Wester report is clearer than the official record. Case 266a. A possible reason for reopening the case was that the plaintiff failed to prove the extent of his loss the first time.

796 367

368

369

370 371 372

373 374 375

376 377 378 379

380 381

382

Notes to pages 455–65 There is some confusion about the defendant’s identity. Although the record calls him “Morrissette” in both sessions, the Nor’-Wester refers to him as “Vivien,” and this reference seems similar. Probably, Vivier/Vivien worked for Morrissette, and while both men participated in butchering the animal, Vivier/Vivien took the lead. As employer, however, Morrissette was legally responsible. The essence of Bird’s evidence, as elaborated by the newspaper account, was that he and his brother were returning from the plains with the ox in harness when, 3 or 4 miles from home, they decided that they could move faster without the tired ox and so unhitched it, confident that it would find its own way home. A half-mile farther along, they encountered the drunken Vivier going the other direction. This format was new. Although it may have signified a default judgment or a settlement, the fact that it was used in several different cases, involving different parties, at this session suggests that it was simply a new abbreviated method for recording routine contested commercial cases. “Mr. Garratt appeared for Plaintiff.” NW650217. The newspaper report is fuller than the record. The horse was used, instead, to pull a cart – lighter work. Ibid. Spence, who was described as a “boy,” was asked by the court clerk, “Do you know the nature of an oath?” He replied, “Yes – an oath will send my soul to hell.” After the laughter subsided, further questioning established that the boy could be reliably sworn. Ibid. Ibid. Editor’s deletion: “he.” The Nor’-Wester did not report this court session, which occurred during the newspaper’s ownership transition between Coldwell and Schultz (see vol. 1, 196). Case 236a, vol. 2, 366. Pannekoek (1991, 156). Coutts (2000, 167–9). This was the first official round in a monumental feud that developed between Schultz and McKenney: half brothers, former friends and partners, and two of the settlement’s most aggressive entrepreneurs. See cases 280b (later this session), 280c (February 1866), and 280d (May 1866), vol. 2, 466, 474, 483. Peninsula-shaped areas of land created by sharp river bends were called points. This area may have been Armstrong’s Point. Apparently, Moyes, who had initially agreed to the new survey but had changed his mind, was sued for cutting wood on land that had been his under the old survey but was the plaintiff’s under the new one. Henry Hallet would have been Jane Hallet’s father. Women were not entitled to sue with respect to their own seduction. Either their employer or,

Notes to pages 466–9

797

if they lived with their parents, their father or mother sued – on the basis of losing their services during their confinement. 383 See cases 280a, vol. 2, 462 (earlier in the same session); 280c, February 1866, vol. 2, 474; and 280d, May 1866, vol. 2, 483. 384 This session was not reported in the Nor’-Wester. François Bruneau was no longer a member of the court, having died on 26 June 1865 (see vol. 1, 184ff.). Roget Goulet would replace him in February 1866. 385 This might have been a bill of exchange drawn on some third party by La Ronde in favour of Marion, and not honoured by the third party; or it might simply have been a bill for goods sold to or services rendered for La Ronde. Since the latter were usually called “accounts,” the former is more likely. 386 Although Canada had adopted a dollar currency in 1858, the dollars involved here were probably American. Note that the exchange rate employed here – approximately £1 = $7.00 – was considerably higher than the $5.00 rate used in case 217, February 1862, vol. 2, 345. 387 This was somewhat disingenuous. There had been a “Board of Works” when the settlement’s public accounts were published in 1860. NW600628. And the 1864 public accounts listed large expenditures for “public works” in each of the districts. NW650921. Presumably, the council now dealt directly with such matters rather than delegating them to a board, but Councillor Henry Fisher had recently been appointed road and ferry superintendent in place of deceased Councillor Bruneau. Should Court Clerk Smith not have advised the plaintiff to sue either Fisher or the council? 388 Case 190, vol. 2, 302. 389 This must have been a debt incurred by an employee on behalf of the company. 390 NW651211. 391 “Mr. Garratt appeared for the Prisoners.” Ibid. 392 Since the case was presented to the grand jury – at a time, according to the recorder, “when sickness in various forms prevailed to such an unusual degree as to make it next to certain that not a few of the Grand Jurors had come ... at a good deal of personal inconvenience” (ibid.) – the case was actually prosecuted by the more formal procedure of indictment rather than by information. 393 Mulligan, an old soldier, said that gazing helplessly at the burning stacks “reminded him of the soldiers ... gazing on the dead body of Sir John Moore at the battle of Corunna.” Ibid. 394 See Commentary. 395 This statement, made under cross-examination, related to the defence theory that the fire was more likely to have been lit by Indians with a grudge against Mulligan. Ibid. 396 See evidence of Morin, below.

798 397

398 399 400

401

402 403

404 405 406 407 408

409 410 411

Notes to pages 469–73 After that, “they went on drinking till Burke, after a time, fell back on the bed as if overpowered with the drink. Witness’s wife asked Armstrong to take Burke away, which he did.” Ibid. “to light his pipe.” Ibid. This refers to the fact that, instead of following the road, Bourk and Armstrong had climbed over the fence onto Mulligan’s property. Spence also testified that on a previous occasion Joseph Armstrong had tried to pull down Spence’s house “by way of retaliation for some dispute ... about the boundary of their lots.” Ibid. Why this should have rendered inadmissible his evidence about an unrelated matter in a Rupert’s Land court is difficult to comprehend. The recorder did not allow the objection, but stood the witness down and deferred a decision until it was clear that his evidence was considered necessary. Donaldson was never recalled. Later, during an intermission, Donaldson and Garratt had words about the latter’s objection, following which Garratt sought a warrant for Donaldson’s arrest for threatening him. Black responded that Donaldson had “conducted himself with perfect propriety” while in court, and that “anything that might have taken place out of doors” could be dealt with at a later time in the normal way. But, he added, “For any disagreeable consequences ... Mr. Garratt must in great measure blame himself, for he appeared to have gone entirely out of his way in making remarks about Captain Donaldson that could hardly fail to give offence.” Ibid. “and two or three more.” Ibid. Before calling evidence, defence counsel Garratt addressed the jury, outlining the defence propositions that Bourk had been too drunk to know what he was saying when he admitted setting the fires, that Armstrong’s scattering of Mulligan’s firewood had occurred on a public road, that Indians with whom Mulligan had admitted quarrels were more likely to have set the fires, and that “it could not be said there was any direct evidence against either of the Prisoners.” Ibid. This witness also testified that, on the morning after the fire, the prisoner Bourk was still “horrified with drink.” Ibid. At the fire Bourk “appeared to be in a stupor.” Ibid. Oliver (1914, 556, 560). NW651211. He then discussed the rather far-fetched possibility, rejected by several witnesses, that the fire had been started by sparks from the Mulligans’ longextinguished stove. He did not mention the possibility that this could also have been a ploy to cover guilty tracks. The record erroneously states, “Clarke.” The Council of Assiniboia had enacted a law on 31 August 1865 authorizing the General Quarterly Court to appoint and supervise guardians for minors (Oliver 1914, 558). In this case, the guardianship appointment was made by

Notes to pages 474–9

799

the court at its February 1866 session (case 300b, vol. 2, 482). The absence of the children’s names from both the notice and the appointment seems unduly casual.

Chapter Five 1 2

3

4

5 6

7

8 9 10 11

12 13 14

For a fuller account of social, legal, and governmental circumstances during this period, see volume 1, chapter 9. See NW660224. Roger Goulet, who was sworn in as a councillor in January 1866, probably sat on the court for the first time at this session, in place of François Bruneau. For other proceedings in this matter, see cases 280a, 280b, and 280d, vol. 2, 462, 466, 483. Arbitration of the dispute by John Black and François Bruneau, to which the parties had agreed at the previous hearing, does not ever seem to have occurred – perhaps due to Bruneau’s death in June 1865. Plaintiff Schultz was very unhappy about the delay. The next time this case was before the court (page 483), he claimed to have asked the court a question this time which had not been answered, and stated that without the answer “he could not expect any justice.” Schultz was clearly the defendant. See his statement below that “you the Pltf. ... were going to get the mud.” Although the term “nonsuit” was often used to signify an outright rejection of a claim by the jury, which was probably the case here, it was more properly applied to rulings by a court that the plaintiff did not present a sufficiently plausible prima facie legal claim to require answer by the defendant. The Nor’-Wester report claimed that “during the progress of the last case [McDermot had himself] been brimful of something.” Whether the “something” was an intoxicant or just perturbation about the case was not made clear. NW660224. Ibid. There is no indication that McDermot was ever disciplined for the disruption. The plaintiff’s father was a member of the court, and would have left the bench at this point, if not earlier. Bannatyne was the defendant’s son-in-law. The Canadian Dictionary/Dictionaire Canadien (Concise) (1962) defines “toiser” as “to measure or size up.” The Oxford English Dictionary defines “toise” as “an old French linear measurement, 6 French feet in length.” Neither definition quite explains this use of “toise,” which appears from the context to be a supporting structure made of piled stones. Bannatyne seems to have acted as an unofficial notary or solicitor from time to time. See also case 357, vol. 2, 511. No evidence of this has been found in the General Court records. Editor’s deletion: “who.”

800 15 16 17 18 19 20

21 22

23

24 25

26 27 28 29

30

31 32 33

Notes to pages 480–6 The objectivity of this witness may have been open to question. See previous case. See related record at pages 481–2. See also the new trial at the May 1866 session (case 306b, vol. 2, 483). The case was tried at the August 1866 session of the court. Magher’s connection to the case is unknown – except that the Nor’-Wester reported the name of the case as “Major vs. Holmes & Putnam.” NW660224. See case 300a, December 1865, vol. 2, 473. Although the Nor’-Wester report commented that the application “will doubtless be granted at the next sitting of the Court,” the court records contain no further reference to the matter. NW660224. See case 310b, May 1866, vol. 2, 482. The Nor’-Wester did not report on this session of the court. Whether that fact was related to the court’s treatment of John Schultz, the newspaper’s owner, in case 280 and other cases at that session is not known. The designation of Court Clerk Smith as public prosecutor was novel. Settlement authorities had occasionally appointed special prosecuting counsel before, and the clerk does seem to have conducted prosecutions from time to time also; but this was the first time a public prosecutor was formally identified. See also cases 280a, 280b, and 280c, vol. 2, 462, 466, 474. Black later described the offending remarks as follows: “Dr. Schultz gratuitously went on to say that ... the Court had allowed itself to be bullied and browbeaten by his [half] brother the Defendant, and that he believed that the Court had neither the ability nor the desire to give him justice.” He made no reference to a question being asked of the court. Black to McTavish, 17 December 1866, HBCA: A.11/98, fo. 164. See also cases 313 to 316 and explanation in Commentary following case 316, vol. 2, 484-5. See also cases 308a and 308c, vol. 2, 481, 491. See also case 306a, February 1866, vol. 2, 481. The case had been decided by default at the last session. To have that ruling overturned, the defendant must have persuaded the court that his failure to appear at the last session had been beyond his control. The record shows that other figures were first used here, but were then replaced with these. Neither set of figures corresponds with the amount initially shown to be claimed. See case 280d, vol. 2, 483. McTavish to Fraser, 13 June 1866 and 21 August 1866, enclosed in D.A. Smith to London, 24 September 1870, HBCA: A.11/99, fo. 289ff. Montague Bere legal opinion, date obliterated, HBCA: A.39/7, fo. 329. Black could not even, in Bere’s opinion, substitute a fine or imprisonment at this late date for the rescinded banishment from court.

Notes to pages 486–91 34

35 36 37 38 39

40 41 42

43

44 45 46 47

48 49

50

801

Black to McTavish, 17 December 1866, HBCA: A.11/98, fo. 164ff. There being no adequate access at Red River to recent common law precedents from abroad, the third-hand newspaper account of the South African case was apparently the only authority available to Black. James Ross, quoted in MAN701112. Montague Bere legal opinion, 11 February 1867, HBCA: A.39/7, fo. 327. McTavish to Smith, 12 March 1867, enclosed in D.A. Smith to London, 24 September 1870, HBCA: A.11/99, fo. 289ff. D.A. Smith to London, 24 September 1870, HBCA: A.11/99, fo. 289ff. Whether Schultz was ever successful in that quest is not known. Why did the jury award damages for only ten days of waiting when the evidence was so strong that the time had actually been fifteen days? Perhaps the jury felt that a wait of up to five days was to be expected in such transactions and that freighting contractors should be expected, as an implied term of the contract, to absorb the expense of normal waits. The application for this relief (case 310a, vol. 2, 482) was recorded at the end of the last session of the court. See NW660825 and the charge to the grand jury in NW671214. James Robert Clare, a long-time fur trader, had replaced Governor William McTavish as chief factor of the company’s Red River District in 1864 and had been appointed a councillor of Assiniboia and justice of the peace in late 1865. Fraser to McTavish, 25 October 1865, HBCA: A.6/40. Although he was sworn in as a councillor in January 1866 (Oliver 1914, 559–60), and became one of the settlement’s auditors of public accounts in February 1866 (ibid., 563), he does not seem to have sat on the court before this session. Judging from the plaintiff’s name, this may have been the court’s first civil claim by an Indian. The second would not occur for another two years (case 410, vol. 2, 536). Editor’s deletion: “body of the.” Note that the conviction was for a less serious offence than the charge. See cases 323b and 323c, vol. 2, 499, 502. The case was withdrawn on the latter occasion. Although it was common for magistrates to conduct preliminary enquiries in criminal matters, it would be irregular to do so in a civil case, if this was such. It is possible, since defamation could amount to a crime in some circumstances, that Goulet was asked to determine whether criminal charges should be laid. See cases 308a, and 308b, vol. 2, 481, 483. This note is difficult to understand. Both Landré and Bannatyne seem to have been witnesses called by the plaintiff, not the defendant; and the record for the third day contains no reference to this case. The Manitoba Archives finding aid for the court records – Taylor (2005) – labels this case as a claim for “conversion” (the civil equivalent of theft), but

802

51 52 53 54 55 56 57 58 59 60 61 62 63 64

65 66 67 68 69 70 71

Notes to pages 491–8 it seems likely that McKenney’s complaint was more of carelessness than of dishonesty. It appears that McKenney contracted with Gladieux to carry his goods to St Cloud, that Gladieux hired Landré to do the job, and that after the latter got to the destination, and was waiting for McKenney to arrive and claim his property, a pack of buffalo robes was stolen. McKenney appears to have blamed the loss on carelessness by Gladieux or his employee. Since nothing in the evidence, except Bannatyne’s counsels of perfection, establish negligence, the claim was understandably dismissed. Taylor (2005) names this defendant “Ramsey.” Recorder Black’s charge to the grand jury that returned the true bill is discussed in the Commentary. Editor’s deletion: “I asked.” Ojibwa. Goulet, a member of the court, probably left the bench before giving this apparently spur-of-the-moment testimony. Case 93a, vol. 2, 191. That sentence was later commuted by the governor. See vol. 1, 212ff. Hargrave (1871, 397–9). NW660825. Hargrave (1871, 398). New Caledonia was an island in the South Pacific. Oliver (1914, 591). See vol. 1, 220. See cases 354b, and 354c, vol. 2, 530, 566. Black was legally correct in ruling that where two or more persons sign a bill of exchange jointly the holder may choose to enforce it to the full amount against one signatory only. It was also valid to deduct duly proven offsetting claims against the plaintiff by the defendant; but the record does not indicate that there was any sworn testimony or documentary evidence supporting those offsetting claims. It is possible, of course, that such evidence was produced but not recorded, or that Kew’s agent acknowledged the claims. The full story of this lawsuit and its aftermath will be found in Hargrave (1871, 423–39). See also cases 354a, 354b, and 354c, vol. 2, 510, 530, 566. See cases 328b, 328c, and 376, vol. 2, 499, 502, 524. See case 361, vol. 2, 512, which is likely related, and case 413, vol. 2, 537, which seems to have resolved the parties’ riparian disputes. See case 331b, vol. 2, 515. This case does not seem ever to have returned to the court. Inkster may have been the executor, and the Settées the beneficiaries, of the estate in question. Presumably, this means that when the mare was brought back to the plaintiff, she was simply left at or near his premises, not delivered into his custody, with the result that she escaped.

Notes to pages 499–510 72

73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90

91 92 93 94 95

96

803

This appears to have been Dr Cowan’s first appearance on the bench since May 1864, although the composition of the court is not known for November 1864 or for May 1865 to February 1866. See case 336b, vol. 2, 509. See cases 323a and 323c, vol. 2, 490, 502. See cases 328a, 328c, and 376, vol. 2, 497, 502, 524. The case would not have been taken from the jury unless the only issue or issues involved law alone. See case 342b, vol. 2, 504. See cases 323a and 323b, vol. 2, 490, 499. See cases 244, 328a, 328b, and 376, vol. 2, 426, 497, 500, 524. See case 342a, vol. 2, 502. See case 344b, vol. 2, 507. The case cannot be found on any future court docket. A clubber seems to have been someone who kept reluctant oxen in motion by prodding or striking them with a stick when they stopped. Presumably, the cloth was wrapped around the club to reduce the damage it did. Laderoute seems to have been the “clubber.” The precise nature of the particular felony is not known. See case 344a, vol. 2, 504. Pulling a cart. Editor’s deletion: “that.” Editor’s deletion: “been.” The entire report of the decision, from “Verdict” to “£8.05.04,” is taken from the original court record (see vol. 2, 510). The words “Carried forward to Page 3” have been deleted from an earlier page. The gist of this case seems to be that while Cammeron was in the Pembina area en route to St Paul with the goods of one Lockart, he found and captured a horse that had escaped from Hoggue earlier. He took the horse, apparently knowing it was Hoggue’s, to St Paul and back to Red River, using it as a saddle horse for Lockart on the way out and as a cart horse on the return trip. The resulting injury to the animal’s health was assessed at £5 by the jury or court. See case 336a, November 1866, vol. 2, 499. The record erroneously states, “Feby.” This unusual process must have been by mutual consent, and the decision must have been based on undisclosed, additional, agreed-upon facts. Editor’s deletion: the passage at page 508 that concludes case 344b, from “Verdict” to “£8.05.04.” See also cases 327, August 1866; 354b, May 1868; and 354c, May 1869, vol. 2, 497, 530, 566. The current case is erroneously dated February 1867 in Taylor (2005). Editor’s deletion: “22 May, 1867: 2nd day’s Sitting.”

804 97

98 99 100 101 102 103

104

105

106

107

108 109 110 111 112

113

114

Notes to pages 510–15 It was uncommon, but not unheard of, for the court to hear from the defendant before the plaintiff. In this case, it is possible that the plaintiff’s sole witness, Henderson, was late arriving at the courthouse. Smith was also clerk of the court. Marginal note in original court record: “*For Census 1856*.” The unexplained claim for damages seems to have been dismissed. This is another example of Bannatyne’s occasional role as an unofficial legal draftsman-solicitor-notary. See also case 304, vol. 2, 497. The facts disclosed by the record are too sparse to permit an understanding of this claim. Since this sum was added to the amount of the claim, rather than being deducted from it, “paid by Pltf.” must mean that it had already been paid by the plaintiff, who would now be reimbursed. The meaning of this statement is obscure. Sometimes “referred” meant “adjourned to a later court sitting,” but this case never appears again in the court record. Perhaps the reference was to arbitration. The problem with this irregular type of evidence was that, unlike in-person testimony, it was not open to being tested by cross-examination by the defendant or the court. “Settled” could mean, in this context, that the full amount was paid immediately in the courtroom by the unsuccessful defendant. Alternatively, it could mean that the parties, perhaps with some prodding from the bench, agreed on a compromise judgment, which sometimes happened in this court. See case 330, August 1866, vol. 2. 497, involving a probably related dispute, and case 413, vol. 2, 536, which seems to have resolved the parties’ riparian disputes. Editor’s deletion: “the dam of.” Editor’s deletion: “that.” Editor’s deletion: “that.” This sentence was the subject of a marginal note – “X question” – indicating that it was a response to cross-examination by the plaintiff. Goulet was a surveyor as well as a member of the court. The unusually large size of the costs award suggests that his surveyor’s fee was included therein. His evidence, while not altogether clear, might support Curtis’s evidence that a large chunk of land had fallen into the channel. Smith’s designation as court clerk in the style of cause indicates that he was acting in his role of public prosecutor to recover this unpaid licence fee from Garratt. See case 331a, August 1866, vol. 2, 498. A subsequent criminal proceeding (case 391, May 1868, vol. 2, 530) is undoubtedly related. The plaintiff’s surname, which was spelled “Rascette” in the original record here, has been altered to the spelling used in case 331a in the interest of consistency. In the very next case, however, the same man is called “Rascette.” There seems no way to achieve consistent spelling of Red River names.

Notes to pages 516–21 115 116 117 118 119 120

121 122 123 124 125 126

127

128

129 130

131 132

805

In this context, “cap” seems to mean “gunshot.” Possibly, Racette’s gun contained a gunpowder charge, without a projectile. Editor’s deletion: “he would.” Racette’s claim seems to have been that injuries sustained in this earlier encounter had prevented some lucrative trip. A member of the court. There is no further reference to this case in the court records. Apparently the impending death of the defendant’s child precluded his presence, and the court accordingly excused his absence and granted a deferral of the trial. See “dit” in Glossary. Editor’s deletion: “& others of his.” See Commentary. Editor’s deletion: “First boat.” See Commentary. This would be the advance customarily paid to boat crews before journeys began. No explanation is given for the double costs assessment. A bracket in the original record, which embraces Vermette and the six other crew members, indicates that the detailed breakdown of the award against Vermette was intended to illustrate how the others’ assessments were calculated. The figures for damages and costs would be the same for all (except Parisienne), the only variable being the individually negotiated advance that each man owed his employers. This figure, which seems to suggest that the total award of damages against the crew of the first boat was £5 greater than for the second boat, is puzzling. While that boat had one more crew member than the other, and would therefore be assessed £5 more if the whole crew were liable for damages, Parisienne was said to be exempt for some reason. Both boats’ assessments should therefore have been the same. Perhaps Court Clerk Smith temporarily overlooked Parisienne’s special situation. Whether Thebeault and Rochleau were partners or separate entrepreneurs is not known, but the fact that the two crews were tried by separate juries suggests independent operations. The word that appears in the Nor’-Wester is “Co-operation,” which must be a misprint. NW670921. Case 205, vol. 2, 328. Individual company officers sometimes represented the HBC, however. See, for example, case 447, vol. 2, 569, in which W.D. Lane, the manager of the company’s cattle ranch, defended an action relating to ranch business. Editor’s deletion: “and did.” Claims based on promissory notes admit of very few defences other than such as relate to the authenticity of the document or the legitimacy of its negotiation from one holder to another. The testimony about the details of surrounding transactions was therefore largely beside the point.

806 133

134

135 136 137 138 139

140 141

142

143 144 145

146

147

Notes to pages 521–6 Although the prescribed procedure (see Commentary) was to issue letters of administration at the court session after that at which the application was made, there is no other reference to this case in the court records. This is the last reference in the court records to Clerk Smith’s certain involvement in court business, although he did not formally retire until considerably later. See, for example, Laws of Assiniboia (1862), s. 38 (Oliver 1914, 496). HBCA: A.39/7, fo. 336–9. That responsibility had been given to the court in August 1865 (Oliver 1914, 558). Ibid., 569. Lusted was appealing from the Petty Court’s award of £4 to Bourk for the unpaid balance of the latter’s fee for conveying the Lusted family and possessions to Red River. He also sought a refund of £4 from the £6 he had already paid Bourk, bringing the total judgment sought to £8. The halfpenny became lost in the calculation. This decision was the culmination of a prolonged dispute about the ownership of land in the vicinity of Winnipeg’s famous intersection of Portage and Main. Related earlier proceedings were cases 244 (August 1863); 328a (August 1866); 328b (November 1866); and 328c (February 1867), vol. 2, 426, 497, 500, 502. Ejectment was a legal proceeding by one who had been deprived of rightful possession of land (“ejected”) to regain such possession, as well as for compensation for the trespass. A member of the court. A company officer, not related to Governor William McTavish. Joseph Gazden was a former Chelsea Pensioner, arrested in 1859 and charged with the murder of an acquaintance who had disappeared from the settlement six years previously. Later released without trial, Gazden eventually dropped from sight himself. The relevance of his landholdings to this case is not clear. Perhaps he was alleged to have sold land to one of the present parties. McTavish’s odd comment about Gazden’s survival may have had to do with whether he was alive at the alleged date of transfer. See case 315, May 1866, vol. 2, 485, involving the same litigants, which was dismissed because Schultz refused to apologize for contempt of court. See also the related Commentary following case 316, vol. 2, 485. The reason for the concluding order is not known. Possibly Schultz, to display his undiminished contempt for the court, declined to attend this hearing, sending an agent in his place, and Black therefore decided not to proceed with the first two claims in the plaintiff’s absence. Whatever the explanation, there is no reference to the case in the record of the next court session – or of any future session.

Notes to pages 526–30

807

148 It was not uncommon for British aristocrats to pass through the settlement on sightseeing or hunting expeditions. Lord Milton must have been one of them. 149 Although it was unusual to make a successful defendant share the costs, that part of the award was always in the court’s discretion. If, as here, both parties had strong cases, it was sometimes considered appropriate to divide the costs. 150 Although the “white glove” ceremony does not seem to have been observed, this was another docket on which no criminal cases appeared. 151 Execution is the court-sanctioned seizure and sale of a defendant’s property to satisfy an unpaid judgment. Such matters were almost always recorded in the Sheriff’s Book (AM: MG2, B4–3) rather than in the court record itself. 152 This case never returned to the docket. 153 It was presumably the defendant who was the minor here. Minors could not legally contract for, or be sued for, debt, except in the case of necessaries. Fathers were not responsible for children’s debts, unless contracted, actually or apparently, on behalf of the parent. Although the record does not say so explicitly, this plaintiff seems to have obtained judgment against the defendant’s father. 154 See cases 387b, November 1870, vol. 2, 581; and 387c, February 1871, vol. 2, 582. 155 See case 331b, May 1867, vol. 2, 515, in which Racette had unsuccessfully sued Devlin for assault. 156 It will have been noted that the court reports were becoming increasingly perfunctory. Whether this was a consequence of Clerk Smith’s known failing health or the product of a substitute clerk serving until Smith was eventually replaced by Thomas Bunn is not known. This record certainly differs in style from its predecessors. 157 See cases 354a, May 1867, vol. 2, 510; and 354c, May 1869, vol. 2, 566. 158 Since Thomas Bunn did not become the court clerk officially until after William Smith’s death in May 1869, this note was not likely to have been added before then. The assertions that this was the third summons and that the first trial occurred in February 1867 do not accord with the court records, which show only one prior proceeding (case 354a, May 1867, vol. 2, 566). There could not have been a prior petty court proceeding, since the claim was for a much larger sum than petty courts were permitted to entertain. Bunn’s note may refer, however, to an earlier action brought by Kew against Henry McKenney on the same joint and several promissory note (case 327, August 1866, vol. 2, 496). 159 Black’s questioning of the witness “was interrupted by the excited protestations of the Defendant,” who objected to having his witness harassed by the court or “put in a false position before the Jury” (Hargrave 1871, 438). 160 Case 327, May 1866, vol. 2, 496. 161 Case 354a, May 1867, vol. 2, 510.

808 162

163 164

165 166 167 168

169

170

171 172 173 174

175

176 177

Notes to pages 532–6 James Mulligan, the former Chelsea Pensioner, now a businessman and frequent civil litigant, had also become a settlement constable. He was released from Schultz’ store that evening. Hargrave (1871, 425–6). The Council of Assiniboia had authorized the recruitment of a force of special constables to guard against such outrages in the future, and had raised, at the reputed cost of £150, a force of about 300 men; but when no further breaches of the peace ensued, they were soon disbanded (ibid., 427). Kew’s failure to press the matter may well have been based on the highly unusual occurrence described in the final paragraph of this Commentary. Ibid., 439. Editor’s deletion here and at the head of each page of this month’s sitting of the court: “May Session, 1868.” It was highly unusual to make a successful plaintiff pay the entire costs of trial, but it might happen, for example, in a situation where the defendant had been willing to pay, without litigation, the sum the court eventually awarded or less. That might have been the case here. It was unusual for the court appealed from to be made a party to the litigation, but in this case the petty court magistrates appear to have been performing what might today be called an “administrative” function – licence supervision – and in modern administrative review procedure, it is common for the body being reviewed to be made a party. While that procedural point is unimportant, the case serves as a reminder that the settlement’s magistrates performed important administrative functions on top of their judicial duties. Awarding the successful plaintiff only “half costs” indicates lack of sympathy by the jury or court for the plaintiff’s claim or disapproval of the manner in which it was pursued. The exchange rate used between pounds and (very likely US) dollars was roughly £1 = $7.30. The following account is taken from Hargrave (1871, 434–7). See Commentary to case 354b, vol. 2, 530. Devlin, a former pensioner, had figured, nonculpably, in two previous cases before the General Court (cases 331b, May 1867, vol. 2, 515; and 391, May 1868, vol. 2, 530). If Black was indeed alone on the bench for this session, the court was not complying with the requirement of the HBC charter that justice be administered by the local governor and council. It is probable, however, that the magistrate members of the court were present but not noted. See page 537 in the next session. Editor’s deletion: “August Session, 1868.” This is a rare example of the court being used by an Indian to enforce rights. The first such seems to have been case 320, vol. 2, 488, two years previously.

Notes to pages 537–41

809

178 Marginal note: “Augt. 22nd, 1868, T. B.” 179 Here the court provides public proof of – as well, perhaps, as assistance in formulating – a private settlement between the parties. 180 The Portage road at Sturgeon Creek. 181 This decision seems to have concluded the property and riparian disputes of these parties. For related earlier litigation, see case 330, August 1866, vol. 2, 497; and 361, May 1867, 2, 512. 182 With Black sat Magistrates Cowan, McKay, and McBeath. Magistrate Goulet was also in the courtroom but was filling in for the absent Sheriff McKenney that day. NW680929. 183 The name of the deceased is given as “Francis Demarrais” in Hargrave (1871, 445), Oliver (1914, 587), and NW680929. 184 For a summary of the facts, see Gibson, Gibson, and Harvey (1983, 78–80). 185 “He ... gave a war whoop as he passed.” NW680929. 186 This damning statement also appears in the Nor’-Wester account. Ibid. 187 Blondin was supposed to have been the first prosecution witness, but when her name was called, she was not present. Ferryman McDougall stepped forward and volunteered that she was too ill to appear, having given birth to a child in the road two or three days previously. The court ordered a Madame Robideaux, who had given shelter to the destitute mother and child, to be summoned to give (presumably hearsay) evidence in place of Blondin. Later in the proceedings, however, the witness herself showed up and insisted on testifying in person. NW680929 and NW681010. The Nor’-Wester reported her surname as “Blondel.” 188 Clementina McLean, sister of the accused. 189 The much fuller Nor’-Wester account of the trial quotes the witness as saying that after she had left the scene, she “heard three shots, and then one.” NW680929. Nothing is reported therein as to the prisoner saying that Demarrais had gone for a gun – a statement that must have been made, as Garrioch’s testimony indicates, before the shots were fired. 190 According to the Nor’-Wester, it was Garrioch, not Lowman, who, under crossexamination by Stutsman, described Demarrais as a “devil” when drunk. By that account, when asked whether he was “as bad as a hostile Sioux,” Garrioch replied, “Not as bad.” Lowman called the deceased “bad” and “dangerous” when drunk and said he would “as lief meet a mad buffalo bull.” Ibid. 191 NW680929; NW681010; NW681017; Hargrave (1871, 444–6). 192 See vol. 1, 209ff. 193 See, generally, as well as in respect to the McLean trial, Gibson, Gibson, and Harvey (1983). 194 A.M. English, [title unknown], Monthly South Dakotan 2 (1899–1900): 199. 195 NW680929. 196 Given that there was no French-speaking litigant in this case, Stutsman’s demand was reasonable. The Nor’-Wester’s interpretation – that every jury

810

197 198 199

200 201

202 203

204 205 206 207 208

209

210

211

212

Notes to pages 541–44 should be fully able to understand English – would, however, have scrapped the important principle, established as a result of the Sayer trial in 1845, that cases involving linguistically mixed litigants should have linguistically mixed juries. Available transcriptions of Black’s previous opening statements in such cases back that up. Emphasis in original. Black reprimanded the juror for this interjection, which must have made Stutsman smile inwardly since every rift between a jury and a convictionminded judge is always welcomed by defence counsel. Even the Nor’-Wester commented that “Mr. Stutsman ... promised to call him to the box and allow the Judge to cross-examine him.” This was not the sole line of defence. Stutsman also suggested that the death might have been caused by another wound that witnesses had seen on the deceased’s body. The shooter’s identity seems, however, to have been considered the crucial issue. Although this evidence was hearsay, second-hand admissions against interest, as this was, are admissible in evidence. Prosecutor Smith’s refusal to address the jury gave Black some justification for making the jury aware of the Crown’s position. His charge was interrupted by Stutsman “on several occasions.” Hill (1890, 185). “[M]en and women at the Prairie Portage were in the habit of constantly carrying firearms for self-protection” (Hargrave 1871, 446). Stutsman to Faulk, 28 September 1868, Faulk Papers, Dakota Territorial Records, reel 42. NW681017. NW680929. While expressing respect for Recorder Black, the Nor’-Wester wished that he would adopt the “firmness in the administration of justice” displayed by British Columbia’s legendary Judge Matthew Begbie, whom it described as “a terror to evil doers.” The assertion that “many have suffered ... injustice” in the company’s courts was prefaced, interestingly, by an acknowledgment that “hundreds have been justly dealt with.” NW681017. The newspaper also recommended that the recorder “divest himself of all fear of the Honourable Company,” though it is difficult to see how that criticism could have been relevant to this particular case. Ibid. That the lesson about English law had come from an American lawyer seems to have been considered especially humiliating, although the newspaper correctly observed that English common law generally prevailed in the United States. A court’s own practices are subject to future change by itself, by the precedents of higher courts in the same judicial hierarchy, and by legislation.

Notes to pages 544–52

213 214 215 216 217

218 219 220 221 222

223 224 225 226 227 228 229 230 231

232

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Stutsman’s critique of the court’s practices did not seem to have much impact on its future proceedings. By at least the February 1869 session, for example, the recorder and jurors were again questioning witnesses (see page 555). Silence is interpreted as a plea of “Not Guilty.” Emphasis added. Laws of Assiniboia (1862), s. 54 (Oliver 1914, 500). Gibson, Gibson, and Harvey (1983, 96). With this session, the Nor’-Wester ceased its regular reports of the court’s proceedings. Thomas Bunn seems to have also taken over as de facto court clerk at this point. Not only does his signature appear at the end of this session’s records, but the reporting style has also changed considerably. Much more clearly than ever before, for example, these reports distinguish examination-in-chief from cross-examination and identify those questions asked (despite lawyer Enos Stutsman’s complaints at the previous session) by the bench and the jury. The case never again appeared on the court docket, probably having been settled. Editor’s deletion here and at the head of each page of this month’s sitting of the court: “*November Session 1868*.” It is not clear whether this sentence was part of Barber’s evidence or an admission made by the defendant in court. Editor’s deletion: “Aug. Gaudris contd.” See retrial in case 417b, May 1869, vol. 2, 563. See also case 421, November 1868, vol. 2, 553, in which the defendant obtained a partial judgment against the plaintiff in an apparently unrelated matter. Editor’s deletion: “R. Tait, contd.” Editor’s deletion: “A. G. B. Bannatyne, contd.” Editor’s deletion: “Jacob St. Denis, contd.” The previous witnesses’ invariable references to Largimonière in the third person suggest that Inkster also employed an agent to conduct his case. A member of the court. Editor’s deletion: “Roger Goulet contd.” A stopper or plug in a cask or, as in this example, the hole into which the plug was inserted. Editor’s deletion: “Colin McDougal.” This is the first recorded instance of a “hung jury” in the court’s annals. See the retrial in case 417b, May 1869, vol. 2, 563. The next hung jury occurred in case 433b, May 1869, vol. 2, 566. This suggests that when the plaintiff was called upon to document the debt, he could do so for only a portion but said he could prove the rest on another occasion. For the second round of litigation, see case 419b, May 1869, vol. 2, 566, in which the plaintiff was awarded a further sum.

812 233

234 235

236 237

238

239 240 241 242

Notes to pages 553–4 This case never returned to the court’s docket. At the end of the original page [C]151 the word “Over” appears, and a page seems to have been cut from the volume before the original page [C]153. Note that the same parties were involved, in opposite roles and with a different outcome, in an earlier case at the same session (case 417a, vol. 2, 547). Editor’s deletion: “At the November Session of the General Quarterly Court, held on the 19th, 20th & 21st Novr., 1868.” There is no record of the application (case 422a) in this matter, but it must have been made at either the regular August 1868 session or the special September 1868 session. It appears that Court Clerk Smith, or his temporary replacement if there was one, had not noted any applications for, or grants of, administration since case 370a, August 1867, vol. 2, 521. No grant of letters of administration in this case was ever noted in the court records, which had a rather hit and miss character in such matters. Bunn was not sworn in as court clerk until the next session of the court. Yet this record is not only signed by him; it is written in a style significantly different than previous records. Perhaps he began acting as clerk on an informal basis, confident that his appointment was in the offing. Thomas Bunn, the eldest son of the late Recorder Dr John Bunn, became a member of the Council of Assiniboia in January 1868. He may have taken over at least some of William Smith’s duties as clerk of both the council and the court, on a temporary and perhaps partial basis, as early as August or September of that year. He ceased to be listed as an attending member of the council on 6 August (Oliver 1914, 586), and although Smith was present at the McLean case in September, he was probably ailing by then, and Bunn signed the record as clerk for that session. Smith’s formal resignation was officially accepted by the council, and Bunn was appointed in his place, on 17 December 1868, at which time it was noted that Smith had been “for some time very ill” (ibid., 598). Bunn later played a significant middle-ground role during the Riel interlude, and emerged as a respected administrator (continuing as clerk of the General Court) and politician in the early years of provincehood. He had acted as counsel before the General Court since at least the Corbett case in 1863 and was called to the Manitoba bar in 1871 (see Morton 2000a). This indicates that a grand jury returned a true bill against William Johnston. Editor’s deletion here and at the head of each page of this month’s sitting of the court: “*February Session 1869*.” The indictment was authorized, as in the previous case, by a grand jury. Thomas Bunn seems to have inherited William Smith’s role as public prosecutor, as well as of court clerk. It will be recalled that Bunn had acted as Crown counsel in Corbett, case 238, vol. 2, 366. Here Bunn seems to have been reading an affidavit previously presented to the grand jury.

Notes to pages 555–63 243 244 245 246 247 248

249 250 251 252 253

254 255

256

257 258 259

260 261 262

263

813

Seized. A term describing the appearance of an animal with indistinct dark markings on a tan or grey hide. James Ross seems to have sensed at the last moment that he was walking into a trap. Bannatyne appears to have been acting as agent for his father-in-law, the defendant. See case 434, vol. 2, 562. The court appears to have acted in this case as a mediator, assisting the parties to arrive at a mutually agreeable settlement of their countervailing claims. Pounds, shillings, and pence. The absence of any recorded evidence is unexplained. Since the judgment was for less than claimed, it is unlikely that it was awarded by default. See case 431b, May 1869, vol. 2, 563. Amable Marion’s name was struck from this suit, and he was made the defendant in a separate one (case 433a, vol. 2, 561). It may seem strange that the plaintiff won even though no causal connection was established between the assault and his claimed injury. Assault and battery were trespass torts, however – actionable on a “strict liability” basis, even without any proof whatsoever of resulting injury. This was a newly arrived physician, who apparently treated the patient three times, charging the sums indicated. Plaintiffs were apparently required when suing to provide a deposit against costs in case they lost. Here half the deposit was to be paid back to the plaintiff by Morin, who was one of two original defendants. See cases 432 and 433b, vol. 2, 561, 566. At the latter hearing, the claim was dismissed because the jury could not agree – the second “hung jury” in the court’s history. See case 426, vol. 2, 558. Promissory note. No indication is provided as to the identity of the witnesses or the nature of their testimony. Whatever they said was of course trumped by McKenney’s production of an overriding deed of conveyance. It is interesting that at least this McDermot land seems to have been jointly owned by the spouses. The proposed new trial does not appear ever to have taken place. Schultz, a member of the since-dissolved partnership of McKenney & Co., and presumably absent from the settlement at this point, must have thought his interests could be affected by the case. Is it significant that, throughout both this case and case 426, vol. 2, 558, McKenney’s name is usually prefixed by “Mr.,” whereas Andrew McDermot’s is usually unadorned?

814 264 265

266

267 268 269

270 271 272

273 274 275

276

277

278

Notes to pages 563–8 See case 431a, February 1869, vol. 2, 558. Clouston’s remark on applying for adjournment at the last session, that “the mere lapse of time would ... settle the question,” had apparently been prophetic – but not to his benefit. See case 417a, November 1868, vol. 2, 547, which ended inconclusively with a hung jury. The plaintiff had since died. The defendant’s name was spelled “Largimonière” in the previous record. See also case 421, November 1868, vol. 2, 553, in which the defendant obtained a partial judgment against William Inkster in an apparently unrelated matter. Editor’s deletion here and at the head of each page of this day’s sitting of the court: “*May 18th 1869*.” Also known as Bréland. Although the case seems to have been adjourned to a future date, it does not appear again on the court’s docket. It was probably settled on the basis of Marion’s explanation. Clerk Bunn neglected to record whether the requested adjournment was granted, but it probably was. The lack of recorded costs for the defendant may have been an oversight; or perhaps there were none. See case 419a, November 1868, vol. 2, 552, in which the plaintiff received a partial award, with liberty to prove further indebtedness, which he did on this occasion. See case 433a, February 1869, vol. 2, 561. This was the second “hung jury” in the court’s history. The first was in case 417a, November 1868, vol. 2, 547. The meaning of this note is unclear. McKenney clearly approached the court in his capacity as sheriff, apparently seeking authority to pay Garratt money from the court’s account. He did not require special authority to make routine payments, such as passing on to a winning party money paid into court by the loser. Perhaps Garratt had performed some work or service for the court. See case 354a, May 1867, vol. 2, 510; and case 354b, May 1868, vol. 2, 530, including the Commentary. Although the recorder outlined ways in which an application for rehearing could be brought, and although there was thought to be a prospect of Kew’s visiting the settlement that summer (Cowan to London, 25 May 1869, HBCA: A.11/99, fo. 62), the case never appeared on the docket again. Larsen, a resident photographer, would soon be in much more serious trouble than this. See cases 455a (November 1870), vol. 2, 539; 455b (February 1871), vol. 2, 584; 455c (May 1871), vol. 2, 585; 455d (August 1871), vol. 2, 597; 470 (May 1871), vol. 2, 586; and 638 (May 1872), vol. 2, 671. Editor’s deletion here and at the head of each page of this month’s sitting of the court: “*Augt. 1869*” or “*Augt. Session, 1869*.”

Notes to pages 568–72 279 280

281

282

283 284 285

286 287

288

289 290

815

“Slander” is verbal defamation; written defamation is called “libel.” See “defamation” in Glossary. A “justification” defence asserts that the impugned statement was true. The alleged lack of malice would be relevant to the defences of “privilege” (that the circumstances gave the defendant a right or a duty to speak on the subject) or “fair comment” (that the statement concerned a matter of public interest), both of which excuse the publication of false statements made for those purposes, and with an honest belief in their truth. The discrepancy between the sum claimed by the defendant and that awarded by the court, reflecting quite different assessments of the seriousness of the damage to the plaintiff’s reputation, was not uncommon in such cases; nor is it now. There is no indication in the court records that Dacotah ever pursued the matter judicially against James McKay. Judging by his name, he was one of the few Indians to seek the court’s assistance in legal disputes. Two previous examples were cases 320 and 410, vol. 2, 488, 536. Editor’s deletion of marginal note: “Case 8th.” Simple breach of contract does not entitle a plaintiff to additional damages. That is, the parties agreed to submit their dispute to arbitration by the recorder and magistrates alone, without a jury. One consequence of that agreement was that the costs were shared between the parties. The dispute must have been settled, as it does not appear again in the court records. It is not clear why the court classified this as a “civil” case when it involved punishment for violating the settlement’s liquor laws. It was first on the civil list in November 1869 (case 452b, vol. 2, 575). This turned out to be the final session of the court under HBC auspices. Careful newspaper coverage of the occasion – probably by founding Nor’Wester editor William Coldwell – was initially intended for publication in December 1869 in a new journal, called Red River Pioneer, to be owned and operated by Coldwell and James Ross. It was not published, however, until January 1870, when it appeared as part of the first issue of the pro-Riel newspaper New Nation, to which Cunningham and Ross sold their equipment, as well as the text of their proposed first issue. NN691201. Black was joined on the bench on this occasion by only Magistrates Cowan and McBeath. Ibid. The grand jury for this and the following case consisted of A.G.B. Bannatyne (foreman), Thomas Truthwaite, Louis Thibeault, Narcisse Marion, John Sutherland, G. Mager, H. McDermot, Patrice Bréland, E.L. Barber, François Gingras, William Drever, Magnus Brown, and John Corrigall. Ibid. With only thirteen members, it was unusually small, but it was noteworthy that both it and a petty jury (membership unknown) could be assembled at all,

816

291 292 293

294

295 296 297 298 299 300

301

Notes to pages 573–9 especially with linguistically mixed membership, given the tense conditions prevailing in the settlement at that juncture. Ibid. Black’s charge to the grand jury identified this man as “Frank Margate.” NN691201. This was the Canadian road from the Great Lakes to the settlement via Lake of the Woods, later known as the Dawson Trail, work upon which Governor McTavish had permitted to commence prematurely because of its anticipated beneficial effect on the local economy. McTavish to Smith, 26 December 1868, HBCA: A.12/45, fo. 140–1. In point of fact, McTavish probably lacked the resources to delay the project if he had wanted to. It is not known whether Coombs, an apparent newcomer to the settlement, had any legal training. W.L. Morton noted that he was later captured by Riel’s men, along with other members of Schultz’s party (Morton 1956, 173). His name is not included in an early list of Manitoba lawyers (see Manitoba Directory, 1877–1878, 104). NW691026. McTavish to Smith, 12 October 1869, LAC: RG6, C1, vol. 12, fo. 1043 (AM: reel M22). NN691201. Editor’s deletion: “*Novr. 1869*.” See case 452a, August 1869, vol. 2, 573. It was never made clear why the court classified this as a civil case, since it involved an appeal from a petty court conviction for violation of the prohibition on selling liquor to Indians. NN691201.

Chapter Six 1

2

3

For a fuller account of social, legal, and governmental circumstances between November 1869 and November 1870, see volume 1, chapter 10; on the period covered by this chapter, see volume 1, chapter 11. The name of the court had not changed, Assiniboia having simply become a district of Manitoba rather than of Rupert’s Land. However, its legal authority had changed, being now derived not from the Hudson’s Bay Company charter but from section 2 of the Manitoba Act and section 129 of the British North America Act, the combined effect of which was to continue in force all pre-existing courts, along with all pre-existing laws and other governmental offices, until replaced by provincial or federal legislation. By the same authority, Thomas Bunn remained the clerk of the court. This was the first session of the court in twelve months. See discussion of the session in vol. 1, 328ff. The last sitting had been held on 18 November 1869 while the Red River Settlement was under the control of Louis Riel and his followers. On that occasion, only criminal cases had been thought urgent

Notes to pages 579–81

817

enough to merit attention. That was also the case this time, apart from a civil arrest arising from an 1868 default judgment. On this occasion, as at certain previous sessions of the court, a case that was not on the docket – a possible prosecution of those who had chased Elzéar Goulet into the Red River, where he drowned – was at least as significant as those that were. See vol. 1, 291ff. 4 Despite the spelling, this was Mr Justice Francis G. Johnson, former recorder and governor of Rupert’s Land and now a member of the Quebec Superior Court, who had been temporarily seconded to Manitoba’s transition-period General Quarterly Court until a new provincial superior court could be created by provincial legislation and made operational by federal judicial appointment. Unlike his previous years on the General Court, when he had shared the bench with several magistrates, Johnson now sat alone, although assisted by a jury. The legal authority for that change is unknown. 5 The fact that bail was granted for so grave a charge in this and several other cases at this and the next court session was likely attributable to poor jail conditions. See the grand jury comment on that topic at the May 1871 session. See vol. 1, 325. 6 This appears to refer to a book of court or sheriff’s records that has not survived. There is a Sheriff’s Book that has survived, but it contains no numerical references equivalent to those in parentheses here. It does show, however, that on 18 November, the day after the court hearing, the bench warrant was served on Ryder Larsen by Constable Mulligan, and that the accused then entered into the required recognizance, supported by two sureties, one of whom was Dr John Schultz. Sheriff’s Book, 1863–71, 18 November 1870, AM: MG2, B4–2. 7 NW690205. 8 Case 443, vol. 2, 568. 9 NN700107. 10 MAN711216. 11 See cases 455b (February 1871), vol. 2, 584; 455c (May 1871), vol. 2, 585; 455d (August 1871), vol. 2, 597; 470 (May 1871), vol. 587; and 638 (May 1872), vol. 2, 671. 12 It is interesting to contrast the court’s straightforward approach here with the circuitous route Recorder Adam Thom took to arrive at the same substantive conclusion in the Beardie case in 1839. See vol. 1, 60. 13 See cases 457b, vol. 2, 584; and 457c, vol. 2, 584. 14 See cases 387a, February 1868, vol. 2, 529; and 387c, February 1871, vol. 2, 582. There is a startling note in the Sheriff’s Book, 1863–71, 17 November 1870, AM: MG2, B4–2: “Petition by Henry J. Clarke, Q.C., on behalf of Joseph Nolin for arrest of judgment, rendered in the General Quarterly Court for the District of Assiniboia Feby. 20, 1870. Granted.” The date was the result of a slip of the clerk’s pen. If the original judgment had indeed

818

15 16 17 18 19 20 21 22

23

24

25 26 27 28 29 30 31 32 33 34

35

Notes to pages 581–7 been made in February 1870, it would mean that the Provisional Government had convened the court during its reign, and there is no other evidence that it ever did so. As this entry in the court record shows, however, the judgment actually dated from 1868. This case never appeared on the docket again. This case never appeared on the docket again. See case 460b, May 1871, vol. 2, 593. Reynolds (2000). See case 460b, May 1871, vol. 2, 593. See, for example, cases 547, November 1871, vol. 2, 638; and 652, April 1872, vol. 2, 676. See cases 387a, February 1868, vol. 2, 527; and 387b, November 1870, vol. 2, 580. Anew, afresh – in this context, a new lawsuit. This litigation was never renewed in the General Court, but Mercer did sue Nolin in the Manitoba Court of Queen’s Bench in October 1872 (case 628, vol. 2, 668). But see the following marginal note and related note. This marginal notation, inserted about three months before the action was renewed in the Court of Queen’s Bench, is hard to understand. Perhaps the clerk, having received the claim in July and having noted it in the record at that time, was instructed to do nothing more about it until the new court was operational. A plaintiff and defendant engaged in civil litigation are said to “join issue” at the point in the pre-trial process of stating their respective positions by means of written pleadings where one party has asserted, and the other has denied, the facts crucial to the issue in dispute. In this case, however, the expression may possibly have been used to indicate an amalgamation of this case with case 462, vol. 2, 583, which involved the same parties in opposite roles. Between court sessions. MAN710211. See cases 455a (November 1870), vol. 2, 579; 455c (May 1871), vol. 2, 585; 469 (May 1871), vol. 2, 588; and 455d (August 1871), vol. 2, 597. See cases 457a and 457c, vol. 2, 580, 587. See case 463a, vol. 2, 585. See case 464b, vol. 2, 585. There is no case 465. There is no case 465. See Commentary to case 468, vol. 2, 592. The record erroneously states, “10.” This may explain why so many persons accused of serious offences were being released on bail at this and preceding court sessions. Another explanation may be that, as mentioned in the Commentary to case 469, vol. 2, 592, the province’s temporary jail was full to capacity. MAN710527.

Notes to pages 587–93 36 37 38 39

40 41 42 43

44 45 46 47

48 49 50

51 52

53 54

819

See cases 455a (November 1870), vol. 2, 579; 455b (February 1871), vol. 2, 584; 469 (May 1871), vol. 2, 588; and 455d (August 1871), vol. 2, 597. MAN711216. See cases 457a and 457b, vol. 2, 580, 584. The case did not appear on the docket again. “The prisoners whose sentence includes hard labor have been furnished with something in that line to keep them employed. We saw the other day some pieces of chunk rope which were to be sent to them to pick into oakum.” MAN710527. The oakum (hempen shreds) produced would be used to caulk the seams of boats. MAN710527. Archibald to Howe, 27 May 1871, LAC: RG6, C1, vol. 21 (AM: reel M23). MAN710527. Marginal note: “Memo: This leaf, having become unloosed and fallen out of this record, was pasted in by me this 23rd day of Feby., AD 1874. Daniel Carey, Prothonotary of the Queen’s Bench, and Clerk of the Crown and Peace for the Province of Manitoba.” See case 464a, February 1871, vol. 2, 584. “[S]tealing a purse, some money, a handkerchief, and some other articles, from the person of Vital Turcotte on the 27th of January.” MAN710527. Lang was described as a “saloonkeeper” in the Manitoban. MAN710527. Alexander Begg’s December 1869 sketch map of Winnipeg (see vol. 1, 204– 5) showed that Ryder Larsen’s photography studio was at that time in a building, which he shared with surveyor Colonel John Dennis, at the northwest corner of what is now Portage and Main. Dennis having returned to eastern Canada in 1870, and Larsen having absconded, the officers in question might now be housed in the building. Captain Frank Villiers was the chief of police. An officer of the troops sent to remove Louis Riel’s forces from Red River. This probably means that Yates was prosecuted by military authorities, and may explain why he was not indicted by the grand jury on this occasion. The reference to the full jail may also shed light on the question of why so many accused criminals were granted bail at this time. MAN710429. This was one of many constitutional niceties of the new Canadian Confederation that had yet to be fully determined. Since Lang had been convicted of an offence that would ultimately be found to fall under federal jurisdiction, Archibald’s assumption was correct. Archibald to Howe, 17 June 1871, 1 July 1871, and 30 August 1871, LAC: RG6, C1, vol. 21 (AM: reel M23). See case 460a, February 1871, vol. 2, 582. McKenney was not present or represented at the trial. MAN710527.

820 55 56

57 58 59 60 61 62 63

64

65

66 67 68 69

70

71 72

Notes to pages 593–7 The only civil case recorded in volume D that was not determined between May 1871 and August 1872 was case 539, October 1871, vol. 2, 636. In addition to the criminal cases transcribed below from volume C of the court records, the General Court also disposed, by way of trial or default judgment, of eleven civil cases at or close to the same session. They can be found at the following original pages in volume D: 10, 12, 13, 14, 15, 16 (July), 20, 22, 23, 24, 29. His words are quoted in vol. 1, 336. “Of unsound mind.” “Not to be prosecuted.” Charge not indicated. The grand jury failed to find the evidence sufficient to justify trying the accused. “Ignoramus” is the traditional term for the same finding for which the expression “Not Found” was used in the previous case. According to the Manitoban, the complainant was Elizabeth MacDonald – probably the witness identified as “Elizabeth McLeod” in the court record. The accused’s surname was there spelled “George Findlay.” MAN710819. Apart from defining the crime of rape, Judge Johnson’s charge to the grand jury merely stressed, in relation to this case, that it was “a capital felony, and ... the Accused, if found guilty, must be sentenced to death.” MAN710819. The severity of the penalty, coupled with skeptical attitudes concerning rape charges by all-male juries, was responsible for a high incidence of acquittals in rape cases in Canada and England. Assuming that Johnson’s charge to the petty jury resembled what he told the grand jurors, might this acquittal have been similarly influenced? Who was expected to pay these costs? Surely not the acquitted accused. Perhaps the Crown required a formal court order before it could pay the doctor’s bill. Sentencing actually took place on 21 August 1871. MAN710826. Ibid. Case 471, vol. 2, 588. The record erroneously states, “Nov. 21.” The correct date, 21 August 1871, was the final day of this court session, which seems to have ended with this last call for the settlement’s most notorious absentee. See cases 455a (November 1870), vol. 2, 579; 455b (February 1871), 2, 584; 455c (May 1871), vol. 2, 585; and 469 (May 1871), vol. 2, 588. Schultz and Garratt were Larsen’s sureties. MAN710701. There is, however, an intriguing notation in volume D of the court records to a civil claim for £557 – filed against Larsen on 2 November 1871 by Erastus E. Egerton (case 556, vol. 2, 642) – having been “settled” on 29 February 1872. Perhaps the settlement was effected by a family member or friend of Larsen.

Notes to pages 597–602

821

73 See also MAN711125; MAN711202; and MET711130. 74 The responsibilities of grand juries extended beyond presenting or rejecting bills of indictment, and this jury also visited the provincial jail at Lower Fort Garry and the “lock-up in town,” praising the former, criticizing the latter, making recommendations for both, and pointing out the “great necessity for the speedy erection of a new gaol.” MAN711125. 75 In addition to the criminal cases transcribed below from volume C of the court records, the General Court also disposed, by way of trial or default judgment, of ten civil cases at or close to the same session. They can be found at the following original pages in volume D: 21, 30, 31, 33 (October), 38, 40, 41, 48, 52, 54. 76 Although there is no indication that cases 481 and 482 were ever tried, it is likely that they involved charges similar to those in case 480 and were covered by the same guilty plea and the same sentence. 77 For background to this and the following two Fenian trials, see vol. 1, 314ff. The accused’s surname is variously spelled “L’Etendre,” “Letendre,” and “Lentendre” in the court record, Le Métis, and the Manitoban respectively. His first name is given as “Louison” in Le Métis. While the latter publication is the most likely to have been accurate, this account will, as in all other cases, adopt the version first used in the court record. “Oiseau” was probably the accused’s “dit” name, or nickname. 78 Nine of the jurors initially called were rejected by peremptory challenges on the part of the defence. Joseph Royal would later complain that the forty-eight-member jury panel, chosen long before the Fenian incursion, included only eight or ten francophones. Le Métis, 30 November 1871. This does not seem to have caused a significant problem, however, since the sheriff rounded up six francophone talesmen (extra panel members, pressed into last-minute service), and the jury eventually chosen seems to have been satisfactorily constituted. The rules as to linguistically mixed juries had recently been changed to require that an accused wishing such a jury apply for it at the time of arraignment, and the defence counsel had omitted to do this. When Royal made the application at the opening of the trial, Attorney General Clarke brought the oversight to the court’s attention but waived objection from a “desire to grant the Prisoner ample justice.” MAN711202. 79 The jury appears to have been sequestered overnight. 80 The jury would again have been sequestered overnight. 81 When a jury is “hung” (unable to agree unanimously), a new trial is ordered. St Matthe was retried – and acquitted – before a new jury in February 1872 (case 484b, vol. 2, 607). 82 See vol. 1, 331ff. 83 MAN711125. 84 MET711130; MAN711216. 85 MAN711216.

822 86 87

88 89 90

91 92 93 94 95

96

97 98 99 100 101 102

Notes to pages 603–7 MAN711125; MAN711202. An Act to Protect the Inhabitants of Canada against Lawless Aggressions from Subjects of Foreign Countries at Peace with Her Majesty, S.C. 1867, 31 Vic., c. 14. The background of that statute is well explained in R.B. Brown (2009, 39–41). MAN711202. Another witness suggested that L’Etendre may have been kicked in the head by a horse at some earlier point in his life. Ibid. The border had not yet been authoritatively surveyed, but there had been, until recently, general agreement that it lay south of the Canadian Custom House and the HBC post. An American surveyor had lately claimed, however, that the accepted line was erroneous, and Royal attempted in his cross-examination of a Crown witness to get that doubt into evidence. Judge Johnson refused to permit the line of questioning unless the defence could bring other positive evidence of a change in, or error about, the border’s location. Some such evidence might well have been available if there had been time to gather it. Colonel Wheaton of the US cavalry had, after all, refused to allow the Canadian defence force to occupy the HBC post north of Pembina on the ground that it was on US territory. Archibald to Howe, 9 October 1871, LAC: RG6, C1, vol. 23 (AM: reel M24). Re M’Naghten (1847) 19 Cl. & F. 200. MET720111. Knafla (2005). R.B. Brown (2009, 57, 64, 67, 71). This session, which began on 29 February and extended well into March, included a huge number of civil cases. See MAN720311; MAN720318; and the following original pages in volume D: 26, 54, 57 (December), 61, 62, 65, 66, 67, 71, 72, 74, 75, 77, 86, 96, 98, 100, 106, 110, 126, 129. The criminal cases were reported, briefly, in MAN720318. It appears that it was decided not to record the charges – at least three of them – upon which the grand jury declined to return true bills of indictment. According to the Manitoban, there were just two “No Bill” cases: “The Queen vs. Minnetonki – burglary” and “The Queen vs. Flett – larceny.” MAN720318. Although no pleas are recorded, there were probably guilty pleas in this and the next two cases. The two charges seem to have been tried at the same time. This was still the February session of the court, extending into March. See case 484a, November 1871, vol. 2, 600. The Crown was represented by Attorney General Clarke. “Mr. Walker opened the Defence by a most powerful and eloquent appeal to the Jury.” MAN720318. The quality of Dubuc’s address was not commented upon – probably because the Manitoban reporter did not understand French.

Notes to pages 607–9 103 104 105

106

107

108 109

110

111

112

113 114 115 116 117

823

“The Hon. Attorney-General opened the case with a very able address to the Jury.” MAN720318. The jury’s verdict was reached after only “a very short recess.” Ibid. “The chief witness for the Crown [no doubt the alleged victim] having succumbed under the searching cross-examination of Mr. Walker, the learned counsel for the Crown asked leave to withdraw the cause, when His Lordship directed the Jury to bring in a verdict of Not Guilty.” MAN720318. The Manitoban account refers to an interesting case that was remanded to the next session of the court but was not mentioned in the official record: “The Queen vs. Buchanan and Davidson – Conspiracy to Commit Murder. This was in the ‘Riel’ matter. The Court not being ready, the case stands till next Court. Walker, Thibaudeau & Howard for Prisoner.” Ibid. This case, which never came to trial, is discussed in vol. 1, 326-7, 335, and in the Commentary below the May 1872 session of the court. In addition to the criminal cases dealt with below, the court also made final determinations in a large number of civil cases at this session. See MAN720601; and the following original pages of volume D: 11, 27, 28, 45, 58, 72, 76, 78 (March), 81, 85, 105, 113, 114, 118, 119, 125, 138, 140, 141, 142, 143, 144, 147, 149, 156, 157, 158, 159, 164. A line was drawn through this name, suggesting that Joachin did not show up. See next note. At this point, the previous list of grand jurors is repeated, except that Joachin’s name is missing, some jurors have accordingly been assigned different numbers, and more first names have been abbreviated. See previous note. Indictment 9, for indecent assault (presumably against the same victim), was against the same accused as indictment 1, and was tried together with it in case 494(2). The numerical case number suffixes in parentheses denote district charges against the same accused. The descriptions of indictments 3 to 6 inclusive, for obtaining either money or goods by false pretences, have been deleted. They were against the same accused as indictment 2, and were tried together with it in cases 495(2) to 495(5) inclusive. The description of indictment 8, for feloniously receiving stolen goods, has been deleted. It was against the same accused as indictment 7, and was tried together with it in case 496(2). The Crown’s failure to proceed with this case is unexplained. See Commentary. See Commentary. See Commentary. Indictment 15, for larceny, was against the same accused as indictment 14 and was tried together with it in case 501(2). See Commentary.

824 118 119 120 121 122 123

124 125 126 127 128

129

130

131 132

133 134 135 136 137

Notes to pages 610–16 Editor’s deletion: statement of the five indictments faced by Hewlett and some blank references to the jury that was never sworn. Although only this indictment is mentioned, the sentence must have applied to all five charges to which the accused pleaded guilty. A line has been drawn through “indecent assault,” suggesting that the Crown may have decided to proceed on the rape charge alone. Presumably, the clerk failed to take note of the witness’s name. Cases 496(1) and 496(2). There is no reference at this point to the second indictment. W.G. Fonseca was a well-known businessman who appeared before the court on several occasions in civil litigation – as plaintiff, defendant, and witness – from December 1860 until the end of the court records. This was his only known criminal prosecution. How the prosecution ended is not known. MET711221. See also Siggins (1994, 206–7). Whether the alleged victim was Louis Riel or his mother and sister is not clear from the report. Cosgrove had sued alone in November 1871 (case 553, vol. 2, 641) but had not proceeded with that action. MAN720525. In fact, only Lennon’s case was being dealt with. The Manitoban’s understanding that both were involved lends support to the speculation above that it had been agreed to treat the one case as representative of both. One of the defendants, Robert Cunningham, was a co-owner of the Manitoban. Although the newspaper mentions only Bannatyne as defendant, Bain and Cunningham were also parties. Cunningham was probably not anxious to publicize his role in this controversial matter. Why Clarke, who had withdrawn as counsel in February, was once more representing the magistrates is not explained. Perhaps the political picture had cleared for him by then. Since Johnson had presided over the February hearing at which Cosgrove’s action had been dismissed, this is further evidence of some sort of agreed arrangement between counsel, to which the judge had simply given pro forma approval by mutual request. From this, it would appear that Bain was acting as a special constable. Case 460b, vol. 2, 593, heard that session, was the single exception. That exception was perhaps made because the case was carried over from an earlier session. Case 685, vol. 2, 686. Case 686, not included in the present court transcripts. The chief clerical officer of the Court of Queen’s Bench. Pages 687 to 700. The final one was case 738, not included in the present court transcripts.

Notes to pages 616–19 138 139 140

141

142

143 144 145

146

147

148

149

825

See, for example, case 645, vol. 2, 673. This heading, which appears on every page, will be omitted hereafter. This was James Ross’s first recorded appearance in the General Court for quite some time. Presumably, the reference to “Walker & Howard” means that he was associated with that firm. William Thibaudeau was practising on his own by then. But note that the head of the firm, D.M. Walker, appeared on the other side. That suggests that the firm was an English-style group of “chambers,” within which the lawyers maintained independent practices. The words identifying the parties as “Plaintiff” and “Defendant” in the style of cause, and later indicating which lawyers acted for whom, will be omitted where they occur in subsequent cases unless those matters are not obvious from the context. The plaintiff(s) will always be named first in the style of cause. A declaration was a document that briefly set out the nature and basis of the plaintiff’s claim. A lawsuit was commenced by filing the plaintiff’s declaration with the court and serving the declaration on the defendant together with a writ of summons from the court ordering the defendant to appear in court on a particular day in order to respond to the claim. The declaration was later called a “statement of claim.” This and similar parenthesized notations seem to refer to a document filing system. An order that a person must appear before a court as a party, witness, or juror. This means that the defendant or his counsel appeared in court on the day ordered in the summons. The appearance commonly occurred before the full hearing of the case and was used to inform the court about who, if anyone, would be acting for the defendant, to deal with preliminary procedural motions, and to set a date for trial. If the defendant considered that the facts alleged in the plaintiff’s declaration were not sufficient to understand the nature or basis of the claim, the defendant could demand, before pleading (replying) to the declaration, that further information (“Particulars”) be provided by the plaintiff. These would be witnesses the defendant wished to be present for trial and whose presence could not, for one reason or another, be counted on unless the court ordered them to attend. Within a specified time after the receipt of particulars, a defendant was required to file and serve on the plaintiff his plea (later known as a statement of defence), briefly outlining the defendant’s side of the story and the reasons why the claim should be dismissed. There is no indication that a plea was ever filed in this case. That could have been an error on the court’s part, but it might also be explained by the fact that the case was subsequently withdrawn from the court in favour of arbitration. Although the fact was not previously noted, the case would have been called, as ordered, at the February session of the court and adjourned to this

826

150

151

152 153

154 155 156

157 158

159

160

161

Notes to pages 619–23 term. That adjournment would have been requested by the defendant or his counsel, probably with the plaintiff’s consent. The record was a compilation of documentation for the case: the declaration, demand for particulars, particulars, plea, and so forth. It would be filed with the court by the plaintiff to signify that the case was ready to proceed to trial or, as in this instance, to inform the court that it would not be proceeding to trial because the parties had agreed to refer the case to private arbitration. A successful party, whether plaintiff or defendant, was entitled, at the court’s discretion, to be paid his or her costs by the loser. Unless the parties agreed between themselves as to the amount of those costs, the court or one of its officials held a “taxation” hearing to examine relevant accounts, hear representations from both sides, determine the amount to be paid, and issue an order to that effect. “Taxation” in that context simply meant deciding which expenses must be paid and did not involve the payment of any tax. Presumably, the costs involved here were those incurred by the plaintiff prior to the agreement to refer the dispute to arbitration. A respondendum was a court order that the defendant be arrested to ensure that he or she would appear in court to answer the plaintiff’s claim. A writ of attachment was a court order to seize property of the defendant in satisfaction of a judgment or anticipated judgment in the plaintiff’s favour. After serving a court document on someone, the constable or other person who effected service filed a return with the court certifying service. The reference to “two Pleas” probably meant that the defendant’s written plea asserted two independent grounds of defence. A replevin was an order that goods the plaintiff claimed to have been wrongfully taken by the defendant be seized and held until the right of possession was determined by the court. This case was not assigned a number in the original record, presumably because it was not a contentious proceeding. A writ of execution authorized seizure of property in satisfaction of a judgment – interchangeable with a writ of attachment. See “attachment” and “execution” in Glossary. This means that since the hearing was adjourned at the request of the plaintiff after the defendant had paid his witness a total of $3.20 in conduct money and travel expenses to attend the hearing, the plaintiff was ordered to reimburse the defendant for that sum. A demurrer was a response to a claim that asserted, in effect, that even if every allegation in the declaration were proven, they would not establish a basis in law for the claim. A conclusion of the argument on law that had commenced on 19 August.

Notes to pages 623–30 162

163

164

165

166 167

168 169 170

171 172

173

174

175 176

827

This was a judicial scrutiny of what a lawyer charged his client. The plaintiff must have disputed the size of his lawyer’s account and have requested the court to review it. A writ of ejectment commenced an action seeking to recover possession of land of which the plaintiff claimed to have been wrongfully dispossessed by the defendant. 11 shillings. Note that although claims were often made in US or Canadian dollars, the court seems to have still been operating on the basis of English currency. But see case 519, vol. 2, 625, where English currency was converted to Canadian in April 1872. This probably means that the defendant thought Judge Johnson had made some erroneous and crucial ruling on law during the trial, or had misdirected the jury in some respect, and that the defendant wanted to consider trying to persuade the judge to reverse himself before he signed formal judgment. It should be remembered that there was no court of appeal at this time. No motion to reverse seems to have been made, however. Compare case 517, vol. 2, 624, where in August 1871 the court was still making awards in pounds, shillings, and pence. A demurrer with pleas was a combined defence, asserting that the plaintiff’s declaration disclosed no cause of action at law and that, even if it did so, the defendant would have specified defences available. The “Stamp” reference was probably to a stamp duty charged on legal documents. The trial must have been subsequently postponed. A writ of fieri facias (often abbreviated to “Fi. Fa.”) was an order of execution against property of the defendant to satisfy a judgment in favour of the plaintiff. A praecipe was a written request to a court for some action, such as issuing a writ or signing a judgment. Although identified as attorney general, Clarke would not have been acting in that capacity here. He maintained a private practice in addition to his official duties, and this case, although involving the chief of police, seems to have been a private dispute. A demand or action for accounts or for an accounting requested a court order that one party open his or her books to scrutiny by or on behalf of the other. This is H.J.G. McConville’s sole recorded appearance in the General Court. Although he had been in Winnipeg since at least late 1870, he had not advertised his services as a lawyer in the newspapers. See Commentary. See vol. 1, 291ff. The number, style of cause, and year were struck out, apparently by reason of the case being settled.

828 177 178 179 180

181

182

183 184

185 186 187 188 189

190 191

192

Notes to pages 631–41 Writ for the attachment of personal property (as opposed to real estate). “Nulla bona” (no goods) noted on a writ returned to the court by the sheriff meant that he found no personal property to seize. Writ for the attachment of real property. Where a defendant admits owing a smaller amount than the plaintiff claims, pays that amount into court before trial, and the court agrees with the lower estimate, the defendant may avoid having to pay costs, and may even have costs awarded against the plaintiff. The parties must have settled the main claim privately, agreeing that the defendant would pay the costs and that, to ensure payment of the latter, a formal judgment for that sum would be issued. Since no actual judgment is recorded, the defendant probably paid the costs before that step was taken. The case must have been settled, but the defendant disputed his lawyer’s account and requested the court to rule on the propriety of some items in the account. Although the parties agreed to arbitration, they wanted the arbitrator’s decision to have the legal force of a court decision. When witnesses are out of the jurisdiction, a court may issue a commission authorizing a court or a designated person or persons in the foreign jurisdiction to examine those witnesses and return a transcript of the examination. The best known example of such a commission involving a General Court matter arose in Corbett v. Dallas – an action in an English court that had the effect of challenging the General Court’s decision in R. v. Corbett, case 238, vol. 2, 366. See vol. 1, 226ff. Interrogatories were written demands by defendants or plaintiffs for explanations of allegations contained in their opponents’ pleadings. The defendant seems to have been seeking the plaintiff’s written bill of account, listing what the defendant owed. This means that the defendant was never served with the summons, presumably because he or she could not be located. This suggests that the parties settled. With such a large sum of money at stake, and such sophisticated parties involved, it is surprising that the defendants did not retain counsel. One reason might have been that one of the defendants was a lawyer himself. A more likely reason is that the case appears to have been settled almost immediately. A per diem fee and travel expenses required to be paid to each witness subpoenaed for appearance at trial. A bill of costs is a list of the expense items and amounts that one party claims to be paid by the other. Before payment, the bill of costs is normally subjected to “taxation”: item-by-item scrutiny and approval or rejection by an officer of the court. This was a reply by the plaintiff to the defendant’s request for a detailed elaboration of a claim or claims made in the declaration.

Notes to pages 642–71 193

194

195 196

197

198

199 200

201

202

203

204

205

206

829

“Nisi” means “unless” in Latin. A rule or decree nisi is one which will take effect at some specified future time unless some condition is met or event occurs in the meantime. Just what the condition or event was in this case is not clear. The significance of “settling” a case in which a default judgment has already been recorded is difficult to imagine. Perhaps the plaintiff agreed to accept less than the award on the basis of the “bird in the hand” principle. Editor’s deletion of an explanation that the remaining entries for this case were recorded on the preceding page of volume D. See Commentary on this and the next case at the end of the account of the May 1872 session of criminal cases, which follows page 612. See also case 655, vol. 2, 676. See Commentary on this and the preceding case at the end of the account of the May 1872 session of criminal cases, which follows page 612. See also case 655, vol. 2, 676. A certificate of judgment would constitute proof of the debt, on the basis of which the plaintiffs could, and eventually did, obtain a writ of execution from the court. An apparently inadvertent second page in the court record for this case can be found at page 670. Probably, Attorney General Clarke, who had a large private practice, acted for Shay at the time the action was commenced and accepted service of the summons on his behalf. Page [D]122 is missing from the record, but at page 618 the Index lists the case as indicated. No relevant documents are listed at page 696 among the papers transferred to the Court of Queen’s Bench. Page [D]124 is missing from the record, but at page 618 the Index lists the case as indicated. No relevant documents are listed at page 696 among the papers transferred to the Court of Queen’s Bench. This appears to be a mistaken partial second page in the court record for case 607, the first and more complete page being page 660. Although the claim shown here is slightly higher than the earlier one, the parties are the same, the record is incomplete, and both the notation “See 106” and the Index reference for this case at page 618 indicate that it is the same case. Page [D]135 is missing from the record, but at page 618 the Index lists the case as indicated. Relevant documents are listed at page 696 among the papers transferred to the Court of Queen’s Bench. Page [D]137 is missing from the record, but at page 618 the Index lists the case as indicated. Relevant documents are listed at page 696 among the papers transferred to the Court of Queen’s Bench. The defendant’s name seems to have been erroneously taken from the previous case. In the lists found on pages 618 and 619, the defendant is shown as Thibaudeau.

830 207

208 209 210 211

212

213

214 215 216 217 218 219

220 221 222 223 224 225 226

227

228

Notes to pages 671–83 See also cases 433a (February 1869), vol. 2, 561; 433b (May 1869), vol. 2, 566; 455b (February 1871), vol. 2, 584; 455c (May 1871), vol. 2, 587; 455d (August 1871), vol. 2, 597; and 638 (May 1872), vol. 2, 671. “He is not found.” A return made by a sheriff or constable unable to locate a person he is ordered to arrest or upon whom he is ordered to serve a writ. The trial must have been subsequently postponed. Initials of Daniel Carey, the prothonotary (chief administrative officer) of the Manitoba Court of Queen’s Bench. A new but professionally seasoned lawyer, Francis E. Cornish, had recently come to Manitoba from Ontario. Before long he would be Winnipeg’s mayor, as well as a prominent member of the bar. Page [D]150 is missing from the record, but at page 618 the Index lists the case as indicated. Relevant documents are listed at page 697 among the papers transferred to the Court of Queen’s Bench. Page [D]152 is missing from the record, but at page 618 the Index lists the case as indicated. Relevant documents are listed at page 697 among the papers transferred to the Court of Queen’s Bench. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Page [D]170 is missing from the record, and the related Index reference at page 618 is blank. However, an entry for a case by this name, mistakenly attributed to number 169 of the court records, is listed at page 699 among the papers transferred to the Court of Queen’s Bench. It seems probable, therefore, that the case was intended to have been number 170, and it is so treated here. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Although this was a civil trial, imprisonment for some debt was still possible, and the writ issued to the plaintiff was for the defendant’s arrest. The defendant accordingly posted a bail bond to maintain his freedom until trial. See next note. The defendant challenged the appropriateness of arrest in the circumstances of this case and persuaded the court to suspend the writ of arrest and to make the plaintiff pay the related costs. It appears that the plaintiff was unable, perhaps because of infirmity or age, to attend the court session and was ordered to be examined externally on the commission of the court.

Notes to pages 683–700 229 230 231 232 233 234 235 236 237 238 239

240 241 242 243 244

245 246 247

248

249

831

The referee was an administrative and junior judicial officer of the Court of Queen’s Bench. Daniel Carey was the first person to hold the office. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. Not listed in the Index, 616. The papers themselves, which all relate to the post–Hudson’s Bay Company period, do not seem to have survived. No papers are listed for several recorded cases. The prothonotary was the chief administrative officer of that court. Daniel Carey was the first incumbent. “D.C.” signifies the initials of Daniel Carey. “Promissory” is consistently misspelled “Promisary” in volume D and has been corrected throughout. See the end of this list for further documents found “Loose in the Box.” Number 43, corresponding to case 546, vol. 2, 638, is the first case for which no documents are included in this list. The numerous subsequent cases for which this is also true will not be noted. Praecipe. The names of the plaintiff and defendant are reversed here. This appears to be an erroneous entry. Number 169 in the court records, corresponding to case 669, vol. 2, 681, is Lacerte v. White. At page 618 the Index is blank for that number. Since nothing is shown for number 170 in either the records or at page 618 in the Index, it seems probable that this entry actually relates to an otherwise unrecorded case by that number, and that this list contains nothing relevant to Lacerte v. White. This and the next two numbers are out of order in the original. The name of the plaintiff is spelled “Sims” in the records for both numbers 174 and 175, corresponding respectively to case 674, vol. 2, 682, and case 675, vol. 2, 683. These documents are related to number 39, corresponding to case 542, vol. 2, 636.

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Case List

Case #

Record page

Wm. Smisxth v. Joseph Kirton

1

A1

3

21 Nov. 1844

James Taylor v. Wm. McDonald

2

A7

7

20 Feb. 1845

Public Interest v. Aysassooquun

3

A9

8

20 Feb. 1845

Public Interest v. Keetchipiwaipasse

4

A11

9

20 Feb. 1845

Bapte. Marcellais v. Louis Ploofe

5

A20

14

15 May 1845

The Public Interest v. Capenesseweet

6

A23

17

4 Aug. 1845

Andrew McDermot v. Saml. Hughes

7

A35

27

21 Aug. 1845

The Public Interest v. Newkesequeskik

8

A38

31

20 Nov. 1845

The Public Interest v. James Anderson Sr 9

A43

34

20 Nov. 1845

The Public Interest v. Peter Hayden

Case name

Book page

Court session

10

A46

37

19 Feb. 1846

The Public Interest v. Charles Desmanais 11

A48

40

19 Feb. 1846

Antoine Morin v. François Richard

12

A48

40

19 Feb. 1846

The Public Interest v. Alexander Dahl

13

A50

42

21 May 1846

The Public Interest v. Thomas Logan

14

A54

45

21 May 1846

The Public Interest v. Henry Cook

15

A54

45

21 May 1846

The Public Interest v. Mrs Cathne. Norne

16

A54

45

21 May 1846

The Public Interest v. Henry Brown

17

A55

46

21 May 1846

The Public Interest v. James McDermot

18

A56

46

28 May 1846

The Public Interest v. Bte. Carribeau

19

A59

49

19 Nov. 1846

The Public Interest v. Robert Munro

20

A60

50

19 Nov. 1846

846

Case List Book page

Case #

Record page

The Public Interest v. Mrs Neil McDonald and Husband

21

A60

50

19 Nov. 1846

The Public Interest v. Mrs Neil McDonald and Husband

22

A61

51

19 Nov. 1846

The Public Interest v. Mrs [Blank] Cyre and Husband

23

A61

51

19 Nov. 1846

The Public Interest v. Mrs [Blank] Cyre and Husband

24

A62

51

19 Nov. 1846

Andrew McDermot v. Bapt. Fanyant, Pierre Poitras, Louison Morin, and Pascal Berland

25

A63

52

18 Feb. 1847

Alexander Ross Esq., Collector of Duties 26 v. Joseph Robert

A65

54

18 Feb. 1847

James Bird v. Thomas Brown

27

A65

54

18 Feb. 1847

James Bird v. Jane Mowat

28

A66

54

18 Feb. 1847

In the Case of the Infants Robertson v. Richd. Smith

29a

A69

56

18 Feb. 1847

In the Case of the Infants Robertson v. Richd. Smith

29b

A124

95

16 Nov. 1848

In the Case of the Infants Robertson v. Richd. Smith

29c

A125

97

15 Feb. 1849

The Public Interest v. Hugh Gibson

30

A70

57

18 Feb. 1847

The Public Interest v. Wm. Donald Sr

31

A70

57

18 Feb. 1847

Andrew Mowat v. Malcolm Cummings

32

A70

57

18 Feb. 1847

Alexander Dahl v. Lacord and His Brother Neeookeeshiweshiom

33

A72

58

18 Feb. 1847

James McKay and Others v. Andrew Spence

34

A74

59

20 May 1847

The Public Interest v. John Hogan

35

A75

59

19 Aug. 1847

The Hudson’s Bay Company v. Joseph Cook, Alexr. Christie Jr, Thomas Fiddler, Donald Bennerman, George Delorme, [Blank] Boucher, [Blank] Robillard, and Joseph St Germain

36

A81

65

19 Aug. 1847

Public Interest v. Pierre Marcellais

37

A83

66

19 Aug. 1847

Case name

Court session

Case List

847 Book page

Case #

Record page

Public Interest v. Catherine Parisien

38

A83

67

19 Aug. 1847

George Flett Jr v. Robert Swain

39

A84

67

19 Aug. 1847

Public Interest v. Peter Hayden

40

A87

68

18 Nov. 1847

Public Interest v. Peter Hayden

41

A89

69

18 Nov. 1847

Public Interest v. Peter Hayden

42

A89

70

18 Nov. 1847

Public Interest v. Peter Hayden

43

A90

70

18 Nov. 1847

Peter Brown v. Baptiste Laframboise

44

A90

71

18 Nov. 1847

Baptiste Turcotte v. Louis Galerneau and 45 Antoine Dunord

A92

72

17 Feb. 1848

John Stevenson v. William Saunders

46

A95

74

17 Feb. 1848

William Brown v. Hugh Camron

47

A98

75

18 May 1848

Alexis Cardinal v. Baptiste Gardepuis

48

A99

76

18 May 1848

In the Case of James Calder

49a

A100

77

17 Aug. 1848

In the Case of James Calder

49b

A154

118

17 May 1849

William Taylor v. Antoine Desjardin

50

A115

89

16 Nov. 1848

James Inkster v. George Dahll

51

A120

92

16 Nov. 1848

Hugh Cammeron v. Hugh Matheson and Angus Polson

52

A122

94

16 Nov. 1848

Public Interest v. John Tait

53a

A125

97

15 Feb. 1849

Public Interest v. John Tait

53b

A146

110

17 May 1849

Donald Gunn v. Richd. Smith

54

A125

97

15 Feb. 1849

Jandron v. Frederick Hamlin

55

A130

100

15 Feb. 1849

François La Framboise v. Bapt. Morin

56

A132

101

15 Feb. 1849

Regina v. Willm. Saunders

57

A134

102

15 Feb. 1849

Regina v. Henry Norquay

58

A135

103

15 Feb. 1849

William Smith v. G. Welsh and Turner

59

A138

105

16 Feb. 1849

Public Welfare v. Wm. Smith

60

A142

108

16 Feb. 1849

The Public Welfare v. George Wells

61

A143

109

16 Feb. 1849

Madame La Rond v. Thomas Pixley

62

A145

110

17 May 1849

Public Interest v. George Dahll

64

A146

111

17 May 1849

Public Interest v. Willm. Smith, Pensioner

65

A147

111

17 May 1849

Case name

Court session

848

Case List Book page

Case #

Record page

Antoine Ploofe v. William Smith, Pensioner

66

A148

112

17 May 1849

Louis Ploofe v. George Anderson

67

A149

113

17 May 1849

The Honble. Hudson’s Bay Company v. Pierre Guilleaum Sayer

68

A151

113

17 May 1849

Thomas Brown v. J. Omand

69

A155

119

16 Aug. 1849

James Doherty v. George Anderson

70

A160

122

16 Aug. 1849

Mrs Doherty v. Mrs Anderson

71

A163

124

16 Aug. 1849

David Charboneau v. Narbère Landré

72

A164

125

15 Nov. 1849

Pellan v. D’Lorme

73

A170

128

15 Nov. 1849

James Short v. Dond. Bannerman

74

A173

130

15 Nov. 1849

Hugh Matheson v. Adam Thom Esq.

75

A177

132

21 Feb. 1850

Watson v. Wm. Smith (Both of the Royal 76 Pensioners)

A178

135

21 Feb. 1850

Christopher Vaughan Foss Esquire v. Augustus Edward Pelly Esqr. and His Wife, John Davidson and His Wife

77

A181

136

16 July 1850

Minutes of an Inquest Taken on the Body of Martin Jerome

78

A222

164

4 Aug. 1850

Regina v. Magdelaine Parenteau

79

A228

167

21 Nov. 1850

Minutes of an Inquest Taken on the Body of Catherine Murphy

80

A231

169

2 Feb. 1851

Public Interest v. Philip McGuire, George Welsh, James Finn, and Thomas Corrigan

81

A237

173

20 Feb. 1851

Shepherd v. Doherty

82

A243

176

20 Feb. 1851

Andrew McDermot Esqr. v. Louison Sayer

83

A245

178

20 Feb. 1851

Public Interest v. Kenney (an Indian)

84

A247

179

15 May 1851

Public Interest v. Neganecapo (an Indian)

85

A251

181

15 May 1851

Public Interest v. Charles Stotgal

86

A252

183

15 May 1851

Public Interest v. François Cyre

87

A254

184

15 May 1851

Public Interest v. Peter Spence, Harriette 88 Spence, John Spence, and George Irvin

A255

184

21 Aug. 1851

Case name

Court session

Case List

849 Book page

Case #

Record page

James Doherty v. Robert Shepherd, Michael Murphy, and Joseph Armstrong

89

A258

186

21 Aug. 1851

Public Interest v. George Irvin

90

B1

189

20 Nov. 1851

Pierre Beauchamps v. Hyacinth Parissienne

91

B2

190

20 Nov. 1851

Donald Murray v. Louis Gagnon

92

B4

191

20 Nov. 1851

Public Interest v. Jane Heckenberger and Margaret Heckenberger

93a

B5

191

19 Feb. 1852

Public Interest v. Janet Heckenberger

93b

B9

194

19 Feb. 1852

Public Interest v. Wandegoos (an Indian)

94

B6

192

19 Feb. 1852

Public Interest v. Narcise Morand

95

B8

193

19 Feb. 1852

Martin Lavallée v. Lucas La Ferté

96

B13

197

19 Feb. 1852

Public Interest v. John Foubister, James Foubister, and George Robertson

97

B17

199

19 Aug. 1852

Public Interest v. Mrs Shepherd

98

B24

203

19 Aug. 1852

Public Interest v. Mrs Shepherd

99

B25

204

19 Aug. 1852

J. Bapte. Charboneau v. Michell Cadotte

100

B26

205

18 Nov. 1852

John Foubister v. John Hodgson

101

B28

206

18 Nov. 1852

Louis Plouff v. Robert Sandison Jr

102

B30

207

18 Nov. 1852

Thomas Corrigan v. Alban Fidler

103

B33

209

17 Feb. 1853

Donald Murray v. Antoine Morand

104

B36

211

17 Feb. 1853

William McDonald v. Joseph Maximilian 105 Genton

B37

212

17 Feb. 1853

Baptiste Goullet v. Joseph D’Lonais

106

B39

213

17 Feb. 1853

Public Interest v. Charles Demarais

107

B42

215

19 May 1853

Pascal Berland v. Walter Bourke

108

B43

216

19 May 1853

Pam Sanders v. William Bird

109

B49

219

19 May 1853

Public Interest v. [Blank] Kanistre

110

B52

221

18 Aug. 1853

George Flett v. Paul La Ronde

111

B53

222

18 Aug. 1853

Public Interest v. Baptiste Fontaigne

112

B54

222

18 Aug. 1853

The Revd. Mr Thebeault v. Mr Andrew McDermot

113

B55

223

17 Nov. 1853

Public Interest v. Susan Pheasant

114

B57

225

17 Nov. 1853

Case name

Court session

850

Case List Book page

Case #

Record page

Public Interest v. Mutchékeesic and Ogemapeenase

115

B57

225

17 Nov. 1853

Coroner’s Inquest Held at Hugh Matheson’s House on the Body of a Newborn Infant

116a

B59

226

21 Nov. 1853

Public Interest v. Elisa Duncan

116b

B63

229

16 Feb. 1854

Margarete Bouvette v. Père Aubert

117

B64

230

16 Feb. 1854

Public Interest v. Joseph Gasden

118

B65

230

16 Feb. 1854

Public Interest v. William Spratt

119

B66

231

16 Feb. 1854

Public Interest v. James Green

120

B67

232

18 May 1854

Public Interest v. Pierre Poitras

121

B67

232

18 May 1854

Nicholas Courtelle v. Madame La Superieuse

122

B74

236

17 Aug. 1854

Public Interest v. Joseph Lewes

123

B76

238

16 Nov. 1854

Benjamine Lajomonier v. Louis Thebeault

124

B78

241

15 Feb. 1855

Public Interest v. Kanecat, Waywaypus, and Shokin

125

B81

242

15 Feb. 1855

Public Interest v. the Same Three Indians as in the Former Case

126

B83

244

15 Feb. 1855

Public Interest v. Thomas Pixley

127

B85

245

16 Feb. 1855

Public Interest v. Thomas McDonald

128

B86

245

16 Feb. 1855

Public Interest v. William Sharp

129

B87

246

16 Feb. 1855

James Bird, Esqr. v. James Taylor Jr

130

B88

248

17 May 1855

James Inkster v. Thomas Sinclair

131

B89

249

17 May 1855

Public Interest v. Michell Dejarlais

132

B90

250

18 May 1855

Public Interest v. Michel Dumas

133

B91

250

18 May 1855

James Mulligan v. Joseph Robillard

134

B92

252

18 May 1855

Alexé Henry v. Pierre Genvenne

135

B94

254

21 Feb. 1856

Public Interest v. Charles Demarais

136

B96

255

20 Nov. 1856

Public Interest v. François, an Indian

137

B97

256

20 Nov. 1856

H.B. Coy. v. John Swain

138

B99

257

20 Aug. 1857

H.B. Coy. v. Joseph Favel

139

B100

258

20 Aug. 1857

Case name

Court session

Case List

851 Book page

Case #

Record page

Narcise Marion v. Louis Caplette

140

B101

258

20 Aug. 1857

Dond. Murray v. Willm. Bird Sr

141a

B102

259

20 Aug. 1857

Donald Murray v. William Bird

141b

B103

260

19 Nov. 1857

Donald Murray v. William Bird

141c

B110

265

21 May 1858

James Muligan v. Augustin Goudré

142

B106

262

18 Feb. 1858

Public Interest v. François Berécau

143

B106

262

18 Feb. 1858

John Rowand v. Augustin Goudré

144

B107

262

18 Feb. 1858

André Harkness v. Joseph Genton

145

B108

263

18 Feb. 1858

Robert Tait v. John Omand

146

B108

264

18 Feb. 1858

Andrew McDermot v. Pierre L’Deux

147

B111

266

21 May 1858

James Mulligan v. William Davis

148

B112

266

21 May 1858

James Armstrong v. Robert Tait

149

B112

266

21 May 1858

Mrs Bird v. Humphry Favel

150

B115

268

19 Aug. 1858

Andrew McDermot v. Antoine Dumais

151

B115

268

19 Aug. 1858

Neil McKay v. Alan McKeiver

152

B116

269

19 Aug. 1858

Dond. Bannerman v. George Turner

153

B118

271

19 Aug. 1858

Public Interest v. Josh. Larence

154

B118

271

19 Aug. 1858

Edward Mowat v. Alexander Sabiston

155

B120

272

16 Dec. 1858

Joseph St Aneau v. Jerome Beauchamps

156

B120

273

16 Dec. 1858

Mrs Lamalice v. James Mulligan

157

B124

275

17 March 1859

André Neault v. Joseph Langevin

158

B126

277

17 March 1859

Albert Sargant v. Bapte. Savoyard

159

B128

278

16 June 1859

John McBride v. John Inkster

160

B128

278

16 June 1859

Narcise Marion v. Joseph Favel

161

B130

279

16 June 1859

Nichol Courtell v. Louis Thebeault

Case name

Court session

162

B130

279

16 June 1859

Governor and Council v. Joseph Gasden 163

B130

280

16 June 1859

Walter Bourk v. An Indian

164

B131

280

16 June 1859

William Flett v. Joseph Parisienne

165

B131

280

16 June 1859

The Queen v. Pierre La Deux

166

B132

281

12 Aug. 1859

The Queen v. C[harles] Patneaud and Pierre Ladoux

167

B134

282

12 Aug. 1859

Revd. G.O. Corbett v. Hugh Cammeron

168

B136

283

15 Sept. 1859

852

Case List

Case name The Queen v. John Bourk

Case #

Record page

Book page

Court session

169

B136

284

15 Sept. 1859

Andrew McDermot v. Louison Marcellais 170

B139

285

15 Sept. 1859

Andrew McDermot v. Charles Stotgale

171

B139

285

15 Sept. 1859

Public Interest v. James Mulligan

172

B139

285

15 Sept. 1859

The Queen v. Catherine and Mary Daniel

173

B140

287

15 Dec. 1859

The Queen v. Robert Sutherland

174

B141

287

15 Dec. 1859

The Queen v. James and William Lewes

175

B142

288

15 Dec. 1859

The Queen v. Willm. Prince

176

B143

289

15 Dec. 1859

Andrew G.B. Bannatyne v. Wapoose Lapine

177

B144

289

15 Dec. 1859

James Mulligan v. Daniel O’Brien

178

B144

289

15 Dec. 1859

Andrew G.B. Bannatyne v. Louis Gagnon 179

B145

290

15 Dec. 1859

William Flett v. Joseph Parissienne

180

B146

292

15 March 1860

Joseph Fortescue (Pro Js. McKay) v. Alexander Dahl

181

B146

292

15 March 1860

Henry McKenny v. Clinton Geddings and G. Moar

182

B151

294

15 March 1860

Mrs Mary Bird v. Mis. Jane Clouston

183

B151

295

15 March 1860

Robert Tait v. Robert and Jacob Beads

184

B153

296

15 March 1860

Morison McBeath v. Louis Gladieux

185

B154

297

20 June 1860

Joseph Langevine v. Loucien Jeroux

186

B158

299

20 June 1860

James Mulligan v. Pierce Baron

187a

B158

299

20 June 1860

James Mulligan v. Pierce Baron

187b

B165

304

20 Sept. 1860

Angus MacKay v. Samuel Bannerman

188

B159

300

20 Sept. 1860

George McKay v. Gabriel Dumont

189

B161

301

20 Sept. 1860

Robert Morgan v. Toutsaint Foix, Ferryman

190

B162

302

20 Sept. 1860

John Taylor v. Patrice Bréland

191

B164

303

20 Sept. 1860

Public Interest v. Paul Boucher

192

B166

305

20 Dec. 1860

Public Interest v. Mary Park

193

B168

306

20 Dec. 1860

Queen v. Baptist Hupée

194

B170

308

20 Dec. 1860

W.G. Fonseca v. H. McKenny

195

B171

308

20 Dec. 1860

Case List

853 Book page

Case #

Record page

Jean Mark Mager v. Henry Joichim

196

B172

309

20 Dec. 1860

Public Interest v. Henry McKenny

197

B173

310

21 Dec. 1860

Joseph Vandal v. James Taylor

198

B174

311

21 Dec. 1860

Honble. Hudson’s Bay Coy. v. Ahnechorolning and Caranegunegan

199

B177

312

21 Dec. 1860

Angèlique Bourassa v. [Blank] Jollibois

200

B178

315

21 March 1861

Joseph Langevin v. Stephen Green

201

B181

316

21 March 1861

Charles Morin v. St Matt. Paullette

202

B181

317

21 March 1861

The Queen v. Daniel O’Brien

203

B183

318

21 May 1861

William Lane v. Urbane Delorme

204

B193

326

21 May 1861

Honble. Hudson’s Bay Coy. v. An Indian 205

B196

328

21 May 1861

The Public Interest v. Angus MacKay

206

B197

328

15 Aug. 1861

Andrew McDermot v. Joseph Ducharme

207

B198

329

15 Aug. 1861

Anneser Mansan v. Auguste Harrison

208

B198

329

15 Aug. 1861

Henry McKenny v. Martin Janson

209

B199

330

15 Aug. 1861

Henry McKenny v. Edward Sharp

210

B200

330

15 Aug. 1861

The Queen v. Paulette Chartrain

211

B200

331

21 Nov. 1861

The Queen v. Keeseeas and Neecheecoos

212

B208

338

22 Nov. 1861

Public Interest v. Auguste Schubert

213

B211

341

22 Nov. 1861

Mrs Doolan v. Bapte. Caplette

214

B212

342

22 Nov. 1861

George Flett v. Wm. Whiter

215(1)

B212

342

22 Nov. 1861

Charles Garret v. Anson R. Gerald

215(2)

B214

343

20 Feb. 1862

Robert Tait v. Joseph Whiteway

216

B215

345

20 Feb. 1862

J.B. Nash v. Josh. Whiteway

217

B215

345

20 Feb. 1862

Peter Henderson v. Philip Harper

218

B216

346

20 Feb. 1862

John Moyses v. Vital Turcott

219

B217

347

20 Feb. 1862

James Spence v. Wm. Simeson

220

B218

348

20 May 1862

J.M. House v. Joseph Rollette

221

B222

350

20 May 1862

John Tait v. J. Rickards

222

B223

351

20 May 1862

Vital Turcotte v. Joseph Burassa

223

B225

352

21 May 1862

Public Interest v. John Favel

224

B226

354

21 May 1862

Case name

Court session

854

Case List Book page

Case #

Record page

Public Interest v. Charles Bouvette

225

B228

355

21 May 1862

Donald Bannerman v. William Sinclair

226

B229

355

21 Aug. 1862

Andrew McDermot v. James Kennedy

227

B231

356

21 Aug. 1862

Alexander Black v. Wm. Sinclair

228

B231

357

21 Aug. 1862

Alexander Cammeron v. Henry McKenny

229

B231

357

21 Aug. 1862

Nichol[as] Courtelle v. Louis Thebeault

230

B233

359

21 Aug. 1862

L.B. Martin and Co. v. Stephen Green

231

B236

361

22 Aug. 1862

Henry McKenny v. Baptiste Hupée

232

B237

362

22 Aug. 1862

Henry McKenny v. James Lecrée

233

B237

362

22 Aug. 1862

Alexander Sutherland v. James Johnson

234

B237

362

20 Nov. 1862

Public Interest v. Louis Pruden

235

B237

362

20 Nov. 1862

John Rowand v. George Racette

236a

B240

366

19 Feb. 1863

John Rowand v. George Racette

236b

C15

416

2 March 1863

John Rowand v. Josh. Genton

237

B241

366

19 Feb. 1863

John Rowand v. Josh. Genton

237

C15

416

2 March 1863

The Queen v. Griffith Owen Corbett

238

B241

366

19 Feb. 1863

The Queen v. Athanas St Luc

239

C15

417

2 March 1863

The Queen v. Joe Bodoin and Edward Ranville

240

C15

417

2 March 1863

The Queen v. Catherine Daniel

241

C21

421

19 May 1863

The Queen v. Jacob Bunn

242

C21

421

19 May 1863

Philibert Laderoute v. Louis Riel [Sr]

243

C22

423

19 May 1863

Public Interest v. Wm. Drever

244

C26

426

20 Aug. 1863

Robert Tait v. James Bird

245

C27

429

20 Aug. 1863

J.M. House v. Roger Goulait

246

C28

430

19 Nov. 1863

Elie Genton v. Alexander Paul

247

C30

432

20 Nov. 1863

The Queen v. Alexander Fielding

248

C31

434

18 Feb. 1864

The Queen v. Alexander Fielding

249

C31

434

18 Feb. 1864

Sally Favel v. George Setter

250

C33

435

18 Feb. 1864

John Bruce v. James Tristram

251

C34

437

18 Feb. 1864

John Bruce v. Robert Mulligan

252

C36

439

19 Feb. 1864

Case name

Court session

Case List

855 Book page

Case #

Record page

William McGillis v. James Swain

253

C38

441

17 May 1864

Vital Tourcotte v. Baptiste Robbilliard

254

C38

441

17 May 1864

Baptiste Goulait v. Henry McKenny and Co.

255

C40

442

17 May 1864

Andrew McDermot v. William D. Lane

256

C40

442

17 May 1864

Edward Bird v. Wm. Slater

257

C45

447

18 May 1864

[Blank] Berard v. Jerry Gunn

258

C46

447

19 May 1864

Henry McKenny v. Hiram Jarquish

259

C49

449

18 Aug. 1864

Pierce Barron v. John Forbes

260

C49

450

18 Aug. 1864

Norman Kitson v. Louis L’Tondre

261

C49

450

18 Aug. 1864

Norman Kitson v. Andrew L’Tondre

262

C49

450

18 Aug. 1864

Thomas Logan v. William McDonald

263

C50

451

18 Aug. 1864

Angus McKay v. Baptiste Adam

264

C51

451

18 Aug. 1864

The Queen v. Thomas Flett

265

C52

452

17 Nov. 1864

Thomas Bird v. François Morrissette

266a

C54

453

17 Nov. 1864

Thomas Bird v. François Morrissette

266b

C55

454

16 Feb. 1865

Henry McKenny v. Duncan Nolin

267

C54

454

17 Nov. 1864

Duncan Nolan v. Henry McKenny

Case name

Court session

268

C54

454

17 Nov. 1864

Henry McKenny v. Alexander Fisher and 269 Bapte. Boyer

C57

456

16 Feb. 1865

N.W. Kitson v. Josh. Landrier

270

C57

456

16 Feb. 1865

N.W. Kitson v. Josh. Primeau

271

C57

456

16 Feb. 1865

N.W. Kitson v. Archibd. Pritchard

272

C57

456

16 Feb. 1865

William Thomas v. A.G.B. Bannatyne

273

C57

457

16 Feb. 1865

William Slater v. James Taylor

274

C58

458

17 Feb. 1865

Estate of Thos. Thomas, Decd. v. William 275 Hallett

C60

459

17 Feb. 1865

Oliver Paul v. Duncan Nolin

276

C60

459

17 Feb. 1865

James Bird v. Robert Tait

277

C60

459

17 Feb. 1865

Duncan and Elizabeth McDonald, Alexr. 278 and Ann McDonald v. The Venble. Archdeacon Hunter

C61

460

16 May 1865

Henry McKenny v. Michael Wagnor

279

C62

462

16 May 1865

John Schultz v. Henry McKenny

280a

C62

462

16 May 1865

856

Case List Book page

Case #

Record page

John Schultz v. Henry McKenny

280b

C67

466

18 May 1865

John Schultz v. Henry McKenney

280c

C73

474

15 Feb. 1866

John Schultz v. Henry McKenney

280d

C80

483

15 May 1866

John Taylor v. John Isbister

281

C63

462

16 May 1865

John Schultz v. Antoine Goin

282

C63

463

16 May 1865

Maxime Dauphinais v. Narcise Barnabé

283

C63

463

16 May 1865

Wm. Drever v. Françs. Roussin

284

C64

463

17 May 1865

[Blank] Sheal v. Henrie Bousquet

285

C64

464

17 May 1865

John Bunn v. William Slater

286

C64

464

17 May 1865

William Drever v. François Mercredi

287

C65

464

17 May 1865

William Drever v. Mrs Edwd. Corrigal

288

C65

465

17 May 1865

James Spence v. John Moyes

289

C65

465

17 May 1865

Henry Hallet v. David Taylor

290

C66

465

17 May 1865

Narcise Marion v. Etien La Ronde

291

C67

466

17 Aug. 1865

Narcise Marion v. Etien D’la Ronde

292

C67

467

17 Aug. 1865

Albert Sargent v. Board of Works or W.R. 293 Smith, Clerk of the Council

C68

468

17 Aug. 1865

Roger Goulet v. Albert Sargent

294

C69

468

17 Aug. 1865

Albert Sargent v. Honble. Huds’s Bay Coy.

295

C69

468

17 Aug. 1865

The Queen v. Joseph Armstrong and Owen Bourk

296

C69

469

16 Nov. 1865

Jesse Clark v. Ambroise Fisher

297

C72

472

16 Nov. 1865

Jesse Clark v. Bapte. Morin

298

C72

472

16 Nov. 1865

J.M. House v. Alexé Peltier

299

Case name

Court session

C72

472

16 Nov. 1865

In the Matter of the Guardianship of the 300a Minor Heirs of Edwin Thomson Denig

C72

473

16 Nov. 1865

In the Matter of the Guardianship of the 300b Minor Heirs of Edwin Thomson Denig

C79

482

16 Feb. 1866

Charles Garratt v. John Schultz

301

C73

475

15 Feb. 1866

Adam McBeath v. Andrew McDermot

302

C73

476

15 Feb. 1866

Henry Joachim v. Louison and Brother Vandalle

303

C74

477

15 Feb. 1866

Case List

857 Book page

Case #

Record page

Nicholas Courtel[le] v. Louis Thebeault

304

C76

478

16 Feb. 1866

Amable Goudré v. Louis Thebeau

305

C77

480

16 Feb. 1866

Albert Sargent v. Putman and Holmes

306a

C78

481

16 Feb. 1866

In the Matter of Sargent v. Putnam and Holmes

306a

C79

481

16 Feb. 1866

Albert Sargent v. Putnam and Holmes

306b

C81

483

15 May 1866

Alexr. Paul v. William Sinclair

307

C79

481

16 Feb. 1866

Henry McKenny v. Pierre Gladieux

308a

C79

481

16 Feb. 1866

Henry McKenney v. Pierre Gladieu

308b

C81

483

15 May 1866

Henry McKenney v. Pierre Glaudieux

308c

Case name

Court session

C88

491

16 Aug. 1866

In the Matter of the Guardianship of the 309 Minor Heirs of James Isbister

C79

482

16 Feb. 1866

In the Matter of the Guardianship of the 310a Minor Heirs of Louis Landré

C79

482

16 Feb. 1866

In the Matter of the Guardianship of the 310b Minor Heirs of Louis Landré

C85

488

15 May 1866

The Queen v. John Parks

311

C80

482

15 May 1866

William Drever v. Pierre Levallée

312

C81

484

15 May 1866

John Schultz v. Charles Garrett

313

C82

484

15 May 1866

John Schultz v. Duncan Nolin

314

C82

485

15 May 1866

John Schultz v. Pierre Dumais

315

C82

485

15 May 1866

John Schultz v. Pierre Canada

316

C82

485

15 May 1866

Alexander Murray v. James Lillie

317

C82

486

15 May 1866

Robert Morgan v. J.B. Holmes

318

C83

487

15 May 1866

John Setter v. Robert Morgan

319

C83

487

15 May 1866

Kecezaway Pecheto v. Joseph Norin

320

C85

488

16 Aug. 1866

The Queen v. Ellen Linklater

321

C85

488

16 Aug. 1866

William Tait v. John Pritchard

322

C88

490

16 Aug. 1866

Henry McKenney v. Thomas Taylor

323a

C88

490

16 Aug. 1866

Henry McKenney v. Thomas Taylor

323b

C97

499

15 Nov. 1866

Henry McKenney v. Thomas Taylor

323c

C100

502

21 Feb. 1867

Alexander Paul v. John Rumsey

324

C89

491

16 Aug. 1866

The Queen v. John Demarrais

325

C89

491

17 Aug. 1866

858

Case List Book page

Case #

Record page

Henry McKenney v. John Pritchard

326

C92

496

17 Aug. 1866

F.E. Kew v. Henry McKenney

327

C93

496

18 Aug. 1866

William Drever v. Henry McKenney

328a

C93

497

20 Aug. 1866

William Drever v. Henry McKenney

328b

C97

500

15 Nov. 1866

William Drever v. Henry McKenney

328c

C100

502

21 Feb. 1867

Andrew McDermot v. Charles Garratt

329

C93

497

20 Aug. 1866

Charles Garratt v. Andrew McDermot

330

C94

497

20 Aug. 1866

George Racette v. Brian Devlin

331a

C95

498

20 Aug. 1866

George Racette v. Brian Devlin

331b

C117

515

23 May 1867

R. Paterson v. Brown

332

C95

498

20 Aug. 1866

Adam McDonald v. Js. Settée and Wife

333

C95

498

20 Aug. 1866

The Queen v. John Savoyard

334

C96

499

15 Nov. 1866

Henry McKenney v. James Bird

335

C96

499

15 Nov. 1866

Henry McKenney v. George Stevenson

336a

C96

499

15 Nov. 1866

Henry McKenney v. Geo. Stevenson

336b

C108

509

21 May 1867

Henry McKenney v. Charles Stevenson

337

C96

499

15 Nov. 1866

Thomas Logan v. Janvier Richot

338

C97

500

15 Nov. 1866

J.B. Holmes v. St Pierre Morin

339

C97

500

15 Nov. 1866

The Queen v. Eustan Savoyard

340

C97

500

15 Nov. 1866

Alexander Paul v. Louis Morin

341

C99

501

15 Nov. 1866

Robert Tait v. Joseph Lapierre

342a

C99

502

15 Nov. 1866

Robert Tait v. Joseph Lapierre

342b

C101

504

21 Feb. 1867

Collector of Customs v. A.R. Gerold

343

C99

502

15 Nov. 1866

Thomas Hoggue v. Sandy Cammeron

344a

C102

504

21 Feb. 1867

Thomas Hoggue v. Sandy Cammeron

344b

C106

507

21 May 1867

John Schultz v. J.M. Howse Sr

345

C102

504

21 Feb. 1867

Philip Kennedy v. John Mooneya

346

C102

504

21 Feb. 1867

John T. Putnam v. James B. Holmes

347

C102

504

21 Feb. 1867

William Drever v. Patrice Cyre

348

C102

505

21 Feb. 1867

André Ritchot v. Antoine McLeod

349

C102

505

21 Feb. 1867

Wm. Inkster v. Geo. Kipling

350

C105

507

21 Feb. 1867

The Queen v. Ogebbeway, an Indian

351

C106

507

21 May 1867

Case name

Court session

Case List

859 Book page

Case #

Record page

John McKay v. Richd. Bailey

352

C108

509

22 May 1867

Alexander Paul v. Antoine Vandale

353

C108

509

22 May 1867

F.E. Kew v. John Schultz

354a

C109

510

22 May 1867

F.E. Kew v. John Schultz

354b

C135

530

19–25 May 1868

F.E. Kew v. John Schultz

354c

C167

566

21 May 1869

G. Dahl v. Alexr. Dahl

355

C109

510

22 May 1867

Henry McKenney v. James Mulligan

356

C110

511

22 May 1867

George Racette v. Alexr. Sutherland

357

C110

511

22 May 1867

Henry Joachim v. R.D. Campbel

358

C111

511

22 May 1867

Lyons, Higgins, and Coy. v. John Sayer

359

C111

512

22 May 1867

Alexander Cammeron v. William Bunn

360

C111

512

23 May 1867

Andrew McDermot v. Charles Garratt

361

C112

512

23 May 1867

Robert Tait v. Fallerdeau Ducharme

362

C117

515

23 May 1867

W.R. Smith, C.C. v. Charles Garratt

363

C117

515

23 May 1867

George Rascette v. Thomas Harris

364

C119

517

23 May 1867

The Queen v. George Rascette

365

C120

517

15 Aug. 1867

George Rascette v. Ambroise Grandbois

366

C121

518

15 Aug. 1867

Jean Magher v. Jean Carran

367

C122

519

15 Aug. 1867

Louis Thebault [and] Louis Rochleau [v.] Boats Crew[s]

368

C123

519

16 Aug. 1867

Alexander Sutherland v. Amable Marion 369

C123

521

16 Aug. 1867

In the Matter of the Intestacy of John James Alexander Rowand

370a

C124

521

16 Aug. 1867

John Higgins v. Bazil Malaterre

371

C125

522

21 Nov. 1867

Thomas Lusted v. John Bourk

372

C125

522

21 Nov. 1867

Robert Tait v. Alphonse Bernabé

373

C127

524

21 Nov. 1867

W.G. Fonseca v. Norbert Nolin

374

C127

524

21 Nov. 1867

W.G. Fonseca v. Joseph Nolin

375

C127

524

21 Nov. 1867

Henry McKenney v. William Drever and Augustin Gaudrie

376

C128

524

22 Nov. 1867

John Schultz v. Pierre Dumais

377

C129

525

22 Nov. 1867

Paul Laronde v. James McKay

378

C130

526

23 Nov. 1867

Moyes Duchene v. François Savage

379

C130

526

23 Nov. 1867

Case name

Court session

860

Case List Book page

Case #

Record page

William Bunn v. James Bird

380

C132

527

20 Feb. 1868

William Bunn v. Thomas Hope

381

C132

528

20 Feb. 1868

Mrs Mary Gowler v. Chas. Curtis

382

C132

528

20 Feb. 1868

F.C. Mercer v. Narcise Marion

383

C132

528

20 Feb. 1868

Revd. Henry Cochrane and W.B. Hall v. Charles Garratt

384

C132

528

20 Feb. 1868

William Drever v. Modest Larjumonier

385

C132

529

20 Feb. 1868

Jean Magher v. Pierre Dumet

386

C132

529

20 Feb. 1868

Frederick C. Mercer v. Joseph Nolin

387a

C132

529

20 Feb. 1868

Fredk. C. Mercer, Pltf. v. Joseph Nolin, Deft.

387b

C176

581

17 Nov. 1870

Fredk. C. Mercer, Plaintiff v. Joseph Nolin, Defendant

387c

C178

582

16 Feb. 1871

Mrs Mary Gowler v. William Logan

388

C133

529

20 Feb. 1868

The Queen v. John Thomson

389

C134

529

19–25 May 1868

The Queen v. Ogibbeway (an Indian)

390

C134

530

19–25 May 1868

The Queen v. George Racette

391

C134

530

19–25 May 1868

F.C. Mercer v. Josh. and Narcisse Marion 392

C136

532

19–25 May 1868

J.F. Putnam v. J.B. Holmes

393

C136

533

19–25 May 1868

A. Ross v. R. Meade

394

C136

533

19–25 May 1868

Chas. Garrett v. Petty Court

395

C136

533

19–25 May 1868

Josh. St Germain v. Anson Gerrold

396

C136

533

19–25 May 1868

[Blank] v. McLean

397

C137

533

19–25 May 1868

C.D. Strong v. Chas. Garrett

398

C137

533

19–25 May 1868

C.D. Strong v. J.B. Holmes

399

C137

534

19–25 May 1868

A.G.B. Bannatyne v. Duncan Nolin

400

C137

534

19–25 May 1868

Wm. Drever v. Josh. Ouellette

401

C137

534

19–25 May 1868

Pierre Ayot v. J.M. House

402

C137

534

19–25 May 1868

Maxime La Pine v. J.M. House

403

C138

534

19–25 May 1868

Jean-Baptiste Lapoint and Joseph St Germain v. Walter R. Bown

404

C138

534

19–25 May 1868

Adolph Debrie v. Urbain Delorme Jr

405

C138

536

20 Aug. 1868

Robert Tait v. Amable Marion

406

C138

536

20 Aug. 1868

Case name

Court session

Case List

861 Book page

Case #

Record page

John Norton v. Walter Gorman

407

C138

536

20 Aug. 1868

Walter Gorman v. John Norton

408

C138

536

20 Aug. 1868

François Gingras v. Antoine Vandalle

409

C138

536

20 Aug. 1868

Widow Quewesenca v. David Pritchard

410

C139

536

20 Aug. 1868

Henry McKenney v. Albert Peterson

411

C139

537

20 Aug. 1868

Adam McDonald v. Henri Coutu

412

C139

537

20 Aug. 1868

Chas. Garrett v. Andrew McDermot

413

C139

537

20 Aug. 1868

The Queen v. Alexr. McLean

414

C140

537

25 Sept. 1868

James McKay v. Wm. Dease

415a

C142

545

19 Nov. 1868

Alexr. Ross v. Augustine Gaudris

416

C142

546

19 Nov. 1868

Wm. Inkster v. Eliziard Largimonière

417a

C144

547

19 Nov. 1868

The Executors of Wm. Inkster v. Eliziard 417b Lagimonière

C164

563

18 May 1869

Gilbert St Luc v. Peter Pruden

418

C150

552

19 Nov. 1868

J.M. House v. Rodk. Ross

419a

C151

552

19 Nov. 1868

J.M. House v. Roderick Ross

419b

C166

566

18 May 1869

John Inkster v. Wm. Daniel

420

C151

552

19 Nov. 1868

Eliziard Largimonière v. William Inkster 421

C151

553

19 Nov. 1868

In the Matter of the Intestacy of Lowe Loutit

422b

C152

553

19 Nov. 1868

In the Matter of the Intestacy of James Ballandine

423a

C152

553

19 Nov. 1868

The Queen v. William Johnston

424

C153

554

18 Feb. 1869

The Queen v. John Isbister

425

C154

554

18 Feb. 1869

Henry McKenney v. Andrew McDermot

426

C158

558

18 Feb. 1869

Alexre. Morin v. John Dease

427

C159

558

18 Feb. 1869

Henri Bousquet v. Frank Larose, alias Boisvert

428

C159

559

18 Feb. 1869

Daniel Carrière v. Pierre Dumais

429

C159

559

18 Feb. 1869

Boniface and Romain Nault v. J.B. Lapointe

430

C159

559

18 Feb. 1869

François Goselin, dit Commis v. James Clouston

431a

C160

560

18 Feb. 1869

François Goselin v. James Clouston

431b

C164

563

18 May 1869

Case name

Court session

862

Case List Book page

Case #

Record page

Benjamin Lagemonière v. Baptiste Morin and Amable Marion

432

C161

560

18 Feb. 1869

Benjamin Lagemonière v. Amable Marion

433a

C162

561

18 Feb. 1869

Benjamin Lagemonière v. Amable Marion

433b

C166

566

18 May 1869

Andrew McDermot v. Henry McKenney and Co.

434

C162

562

18 Feb. 1869

Maurice Lowman v. George Garrioch

435

C164

563

18 May 1869

Henry McKenney v. George McKay

436

C165

564

18 May 1869

Patrice Berland v. Josh. Miliène Genton & Josh. Miliène Genton v. Amable Marion

437a

C165

564

18 May 1869

John Dease v. Alexandre Morin

438

C166

565

18 May 1869

Xavier Morin v. David Tait

439

C166

565

18 May 1869

F.C. Mercer, Plaintiff v. George Racette, Defendant

440

C168

567

19 Aug. 1869

Honoré Pariseau, Plaintiff v. Goodwin Marchand, Defendant

441

C168

567

19 Aug. 1869

James McKay, Plaintiff v. William Taylor, Defendant

442

C168

567

19 Aug. 1869

Eric Anderson, Plaintiff v. Ryder Larsen, 443 Defendant

C168

568

19 Aug. 1869

W.H. Lyons, Plaintiff v. Celestin Thomas, 444 Defendant

C168

568

19 Aug. 1869

James Wishart, Plaintiff v. Peter Taylor, Defendant

445

C169

568

19 Aug. 1869

Joseph Dacotah, Plaintiff v. John Grant, Defendant

446

C169

569

19 Aug. 1869

Matthew Cook, Plaintiff v. W.D. Lane, Defendant

447

C169

569

19 Aug. 1869

Paul Laronde, Plaintiff v. William Drever, 448 Defendant

C170

570

19 Aug. 1869

Robert Tait, Plaintiff v. Pierce Barron, Defendant

C170

570

19 Aug. 1869

Case name

449

Court session

Case List

863 Book page

Case #

Record page

Robert Tait, Plaintiff v. Alexr. Nault, Defendant

450

C171

570

19 Aug. 1869

Hugh F. O’Lone, Plaintiff v. Alexander Begg

451

C171

571

19 Aug. 1869

W.B. Hall v. Appealing from Decision of Petty Court

452a

C172

571

19 Aug. 1869

W.B. Hall v. Appellant from Decision of Petty Court

452b

C174

575

18 Nov. 1869

The Queen v. Flora Saunders

453

C173

572

18 Nov. 1869

The Queen v. W.J. Allan, Tho. Scott, Francis F. Moggridge, and George Fortney

454

C173

573

18 Nov. 1869

The Crown v. Ryder Larsen

455a

C175

579

17 Nov. 1870

The Crown v. Ryder Larsen

455b

C179

584

16 Feb. 1871

The Queen v. Ryder Larsen

455c

C181

585

16 May 1871

The Queen v. Ryder Larsen

455c

C182

587

16 May 1871

The Crown v. [Blank] Cameron

456

C175

580

17 Nov. 1870

The Crown v. David Marshall

457a

C175

580

17 Nov. 1870

The Crown v. David Marshall

457b

C179

584

16 Feb. 1871

The Queen v. David Marshall

457c

C181

585

16 May 1871

The Queen v. David Marshall

457c

C183

587

16 May 1871

Peter Morwich, Plaintiff v. Adam McDonald, Deft.

458

C177

581

16 Feb. 1871

Michael O’Donnell, Plaintiff v. Murdoch 459 McLeod, Defendant

C177

581

16 Feb. 1871

Andrew McDermot, Plaintiff v. Henry McKenney, Defendant

460a

C177

582

16 Feb. 1871

Henry McDermot, Plaint. v. Henry McKenney, Deft.

460b

C188

593

17 May 1871

John Schultz, Plaintiff v. Coldwell and Cunningham, Defdts.

461

C178

583

16 Feb. 1871

Coldwell and Cunningham, Plaintiffs v. John Schultz, Defendant

462

C179

583

16 Feb. 1871

The Crown v. Thomas Collins

463a

C179

584

16 Feb. 1871

The Queen v. Thos. Collins

463b

C181

585

16 May 1871

Case name

Court session

864

Case List Book page

Case #

Record page

The Crown v. Sarah Atkinson

464a

C180

584

16 Feb. 1871

The Queen v. Sarah Atkinson

464b

C181

585

16 May 1871

The Queen v. Sarah Atkinson

464b

C183

587

16 May 1871

The Queen v. Sarah Atkinson

464b

C186

590

17 May 1871

The Queen v. John Thomson

466

C181

585

16 May 1871

The Queen v. John Thomson

466

C187

591

17 May 1871

The Queen v. James Warren

467

C181

585

16 May 1871

The Queen v. James Warren

467

C185

589

17 May 1871

The Queen v. James Lang

468

C181

585

16 May 1871

The Queen v. James Lang

468

C187

591

17 May 1871

The Queen v. Ryder Larsen

469

C183

588

16 May 1871

The Queen v. Ryder Larsen and Jonathan Yates

469, 470

C182

586

The Queen v. John Longbones

471

C182

586

16 May 1871

The Queen v. John Longbones

471

C184

588

16 May 1871

The Queen v. George Finlay

472

C189

594

17 Aug. 1871

The Queen v. George Finlay

472

C190

595

17 Aug. 1871

The Queen v. Aimé Blanc

473

C189

594

17 Aug. 1871

The Queen v. William Belles

474

C189

594

17 Aug. 1871

The Queen v. Antoine McLeod

475

C189

594

17 Aug. 1871

The Queen v. Thomas Hill

476

C190

594

17 Aug. 1871

The Queen v. Thomas Hill

476

C192

596

17 Aug. 1871

The Queen v. Albert Peterson

477

C190

595

17 Aug. 1871

The Queen v. Pierre Cadotte

478

C194

598

18 Nov. 1871

The Queen v. Charles Edward Jones

479

C194

598

18 Nov. 1871

The Queen v. Joseph Thomas William Humphrey

480

C194

598

18 Nov. 1871

The Queen v. Joseph Thomas William Humphrey

481

C194

598

18 Nov. 1871

The Queen v. Joseph Thomas William Humphrey

482

C194

598

18 Nov. 1871

The Queen v. Joseph Thomas William Humphrey

480, 481, 482

C195

598

18 Nov. 1871

The Queen v. Isidore Villeneuve

483

C194

598

18 Nov. 1871

Case name

Court session

16 May 1871

Case List

865 Book page

Case #

Record page

The Queen v. Isidore Villeneuve

483

C195

599

22 Nov. 1871

The Queen v. Isidore Villeneuve

483

C200

601

24 Nov. 1871

The Queen v. André Jerome St Matthe

484a

C194

598

18 Nov. 1871

The Queen v. André Jerome St Matthe

484a

C195

599

22 Nov. 1871

The Queen v. André Jerome St Matthe

484a

C198

600

24 Nov. 1871

The Crown v. St Matthe

484b

C204

607

1 March 1872

The Queen v. Oiseau L’Entendre

485

C194

598

18 Nov. 1871

The Queen v. Oiseau L’Entendre

485

C195

599

22 Nov. 1871

The Queen v. Oiseau L’Entendre

485

C196

599

22 Nov. 1871

The Crown v. William Johnston

486

C202

605

__ Feb. 1872

The Queen v. William Johnston

486

C203

606

__ Feb. 1872

The Crown v. James Warren

487

C202

605

__ Feb. 1872

The Crown v. James Warren

487

C205

607

1 March 1872

The Crown v. Clement Hancock

488

C202

605

__ Feb. 1872

The Queen v. Clement Hancock

488

C203

606

__ Feb. 1872

The Crown v. Thomas Chartier

489

C202

606

__ Feb. 1872

The Queen v. Thomas Chartier

489

C203

606

__ Feb. 1872

The Crown v. Charles Edward Jones

490

C202

606

__ Feb. 1872

The Crown v. Charles Edward Jones

490

C207

608

1 March 1872

The Crown v. James Wilson

491

C202

606

__ Feb. 1872

The Crown v. James Wilson

492

C202

606

__ Feb. 1872

The Queen v. James Wilson

491, 492

C203

606

The Crown v. Henry Smith

493a

C202

606

__ Feb. 1872

The Crown v. Henry Smith

493a

C206

607

1 March 1872

The Crown v. Henry Smith

493b

C210

610

17 May 1872

The Crown v. Henry Smith

493b

C214

611

23 May 1872

The Crown v. William Harper

494(1)

C210

609

17 May 1872

The Crown v. W. Harper

494(2)

C210

609

17 May 1872

The Crown v. W. Harper

494(1), C212 494(2)

610

The Crown v. Chas. H. Hewlett

495(1)

C210

609

17 May 1872

The Crown v. Charles H. Hewlett

495(1)

C211

610

17 May 1872

The Crown v. Accocanis

496(1)

C210

609

17 May 1872

Case name

Court session

__ Feb. 1872

20 May 1872

866

Case List

Case name

Case #

Record page

Book page

Court session

The Crown v. Accocanis

496(1), C213 496(2)

611

20 May 1872

The Crown v. Angus Neilson

497

C210

609

17 May 1872

The Crown v. Edward Isbister

498

C210

609

17 May 1872

The Crown v. Walter Davidson

499

C210

609

17 May 1872

The Crown v. Walter Davidson and William Buchanan

500

C210

609

17 May 1872

The Crown v. W.G. Fonseca

501(1)

C210

609

17 May 1872

Regina v. W.G. Fonseca

501(1), C214 501(2)

612

The Crown v. Walter Davison and William Buchanan

502

C210

609

17 May 1872

John Higgins, Plaintiff v. Robert Tait, Defendant

503

D4

618

25 May 1871

John MacTavish v. Gabriel Desgeorges

504

D5

619

12 May 1871

John H. MacTavish v. W.J. Walker

505

D5

619

13 May 1871

Andrew McDermot v. J.B. Holmes

506

D6

619

20 May 1871

Andrew McDermot v. J.B. Holmes

507

D6

620

20 May 1871

F.I. Metzger v. William G. Fonseca

508

D7

620

8 June 1871

Hudson’s Bay Coy. v. “Little Beaver”

509

D8

620

13 June 1871

Hudson’s Bay Coy. v. McLane and Smith 510

D8

621

21 June 1871

John Schultz v. Hill Griggs and Coy.

511

D9

621

5 July 1871

In the Estate of William Rowan, Deceased

512

D9

621

5 July 1871

John McKenny v. J.B. Holmes

513

D10

622

5 July 1871

David Hyde v. Robert Tait

514

D11

622

5 July 1871

Andrew McDermot v. Alexander Dhall

515

D12

623

12 July 1871

François Vandal v. John Schultz

516

D13

623

12 July 1871

Jean Baptiste LaPointe v. Gilbert St Luc

517

D14

624

12 July 1871

Pierre Laverdure v. James Baldwin

518

D15

625

26 July 1871

Hudson’s Bay Company v. William Slater 519

D16

625

26 July 1871

Narcisse Marion v. John H. O’Donnell

520

D17

626

2 Aug. 1871

John Higgins v. George McKay

521

D18

626

2 Aug. 1871

23 May 1872

Case List

867 Book page

Case #

Record page

Henry McKenney v. Revd. James Suttee

522

D19

627

2 Aug. 1871

John G. Sandermann v. Louis De Plainval

523

D20

627

2 Aug. 1871

Nicholas Courtelle v. Catharine Lacerte

524

D21

627

2 Aug. 1871

Joseph Marion v. John H. O’Donnell

525

D22

629

2 Aug. 1871

John Schultz v. Thomas Spence

526

D23

629

2 Aug. 1871

James Cousins v. Honbl. John O’Donnell 527

D24

630

2 Aug. 1871

Bannatyne and Begg v. Charles Begg

528

D25

630

5 Aug. 1871

Eric Anderson v. Peter Pruden

529

D26

630

5 Aug. 1871

Andrew McDermot v. Charles Garratt

530

D27

631

5 Aug. 1871

Andrew McDermot v. Charles Garratt

531

D28

632

5 Aug. 1871

Alexander Murray v. Raphael Bellefeulle 532

D29

633

5 Aug. 1871

Peter Morwick v. Adam McDonald

533

D30

634

12 Aug. 1871

John F. Grant v. William Brymner

534

D31

634

5 Aug. 1871

Lyster Haywood v. Hill, Griggs, and Co.

535

D32

634

13 Sept. 1871

Joseph Crowson v. John M. Addshead

536

D33

635

7 Oct. 1871

A.R. Gerold v. Duncan Nolan

537

D34

635

8 Oct. 1871

Edward Comber v. Robert Tait

538

D35

635

6 Oct. 1871

John McKenzie v. Robert Tait

539

D36

636

6 Oct. 1871

Alexander M. Brown v. Dugald Sinclair and William McDougall

540

D37

636

19 Oct. 1871

Alexander M. Brown v. Walter [?] Davison and George Millar

541

D38

636

28 Oct. 1871

James Lynch v. Hill, Griggs, et al.

542

D39

636

21 Oct. 1871

George Emerling v. E.L. Barber

543

D40

637

25 Oct. 1871

Andrew McDermot v. Kenneth McBain

544

D41

637

27 Oct. 1871

Thomas Lusted v. William Dease Jr

545

D42

638

3 Nov. 1871

Hall v. Lousden

546

D43

638

4 Nov. 1871

John McKenny v. John Omand

547

D44

638

4 Nov. 1871

Colborne Frazier v. Hill, Griggs, et al.

548

D45

638

4 Nov. 1871

John Schultz v. David Tait

549

D46

639

4 Nov. 1871

John Schultz v. Kennedy

550

D47

640

4 Nov. 1871

Case name

Court session

868

Case List Book page

Case #

Record page

Philip Hussey v. Manitoba Brewery Company

551

D48

640

4 Nov. 1871

Joseph Cadman v. Manitoba Brewery Company

552

D49

640

4 Nov. 1871

William Cosgrove v. A.G.B. Bannatyne and John F. Bain

553

D50

641

4 Nov. 1871

Erastus J. Edgerton v. Joshua M. House

554

D51

641

8 Nov. 1871

F.C. Mercer v. William Dease Jr

555

D52

642

3 Nov. 1871

Erastus E. Edgerton v. Ryder Larsen

556

D53

642

20 Nov. 1871

John F. Robinson v. James Taylor

557

D54

643

27 Nov. 1871

J.F. Robinson v. John Klyne

558

D55

643

26 Dec. 1871

J.F. Robinson v. George Klyne

559

D56

644

28 Dec. 1871

Hill et al. v. John Schultz

560

D57

644

15 Dec. 1871

Donald McDonald v. James Peebles

561

D58

644

11 Jan. 1872

Dr John Schultz v. Saml. Kennedy

562

D59

646

5 Jan. 1872

Dr John Schultz v. J.B. Holmes

563

D60

646

5 Jan. 1872

Wm. Drever Sr v. Modeste Lagemonière

564

D61

646

5 Jan. 1872

Dr John Schultz v. Michael Meeham

565

D62

646

5 Jan. 1872

A. Boyd v. T. [?] Struthers

566

D63

647

6 Jan. 1872

Lyster Hayward v. T. [?] Struthers

567

D64

647

5 Jan. 1872

John Taylor v. John McKay

568

D65

647

9 Jan. 1872

John Taylor v. Baptiste Leviolette

569

D66

647

9 Jan. 1872

John Taylor v. Basile Lucier

570

D67

647

9 Jan. 1872

John Taylor v. Louison Dejerlay

571

D68

648

9 Jan. 1872

John Taylor v. John Bias

572

D69

648

9 Jan. 1872

Alexander McArthur and John Martin v. 573 Walker, Davison, and George Miller

D70

648

9 Jan. 1872

David Tait v. Charles Lavallée

574

D71

648

10 Jan. 1872

Henry Mayenyest v. John Bremerman

575

D72

649

10 Jan. 1872

W.G. Fonseca v. François Ducharme

576

D73

649

13 Jan. 1872

W.G. Fonseca v. Norbert Nolin

577

D74

649

13 Jan. 1872

William Cosgrove v. Alexander G.B. Bannatyne, Robert Cunningham, and John F. Bain

578

D75

649

13 Jan. 1872

Case name

Court session

Case List

Case name

Case #

869 Record page

Book page

Court session

Edward Lennon, Plttff. v. Alexander G.B. 579 Bannatyne, Robert Cunningham, and John F. Bain, Defts.

D76

650

13 Jan. 1872

John Anderson v. Roderick Stevenson

580

D77

651

17 Jan. 1872

Chisholm and Bubar v. James Bedman, Blacksmith of the Town of Winnipeg

581

D78

651

17 Jan. 1872

William Dease Jr v. Henry Coutu

582

D79

652

17 Jan. 1872

Joseph McDurmitt v. Duncan Nolin

583

D80

652

18 Jan. 1872

David Tait v. Robert Hastie

584

D81

652

20 Jan. 1872

Andrew McDermot v. Keneth McBain

585

D82

653

20 Jan. 1872

Andrew McDermot v. William Smith

586

D83

653

20 Jan. 1872

Joshua M. House v. Baptiste Desjerlais

587

D84

653

20 Jan. 1872

Joshua M. House v. Baptiste Lafrenière

588

D85

653

20 Jan. 1872

Joshua M. House v. Louison Sear

589

D86

654

20 Jan. 1872

Joshua M. House v. Basil Lussier

590

D87

654

20 Jan. 1872

Joshua M. House and Charles H. House v. Abram Parisien

591

D88

654

20 Jan. 1872

Joshua M. House and Charles H. House v. Jean B. Fayant

592

D89

654

20 Jan. 1872

Joshua M. House and Charles H. House v. Daniel Ross

593

D90

655

20 Jan. 1872

Charles H. House v. George Hodgson

594

D91

655

20 Jan. 1872

J.R. Benson v. L. De Plainval

595

D92

655

23 Jan. 1872

Joshua M. House v. Amable Lucier

596

D95

655

27 Jan. 1872

Maurice Loman and John Inkster, Executor of the Last Will and Testament of Wm. Inkster, Deceased, Pltff.

597

D96

656

27 Jan. 1872

Charles Garratt v. William Diamond

598

D97

656

27 Jan. 1872

Andrew G.B. Bannatyne v. Robert Sutherland

599

D98

657

27 Jan. 1872

John Schultz v. Roland P. Meade

600

D99

657

30 Jan. 1872

John Schultz v. François Ducharme

601

D100

657

30 Jan. 1872

Maurice J.G. Lowman v. James Taylor, the Younger

602

D101

657

30 Jan. 1872

870

Case List Book page

Case #

Record page

Joshua M. House and Charles H. House v. Jean Baptiste Faynant

603

D102

658

30 Jan. 1872

Joshua M. House v. Antoine Dejarlais

604

D103

658

30 Jan. 1872

J.M. House v. Paulette Chatras

605

D104

658

30 Jan. 1872

J.M. House and Charles H. House v. Pierre Chatrass

606

D105

659

30 Jan. 1872

J.M. House v. D. Shay

607(1)

D106

660

30 Jan. 1872

J.M. House v. D. Shay

607(2)

D133

670

1 Feb. 1872

John McKenney v. John Omand

608

D107

660

28 Nov. [1872?]

Robert Hastie v. David Tait

609

D108

661

1 Feb. 1872

John. C. Boeneman and Donald McLeod v. Henry Field

610

D109

661

1 Feb. 1872

John Schultz v. John R. Matheson

611

D110

661

1 Feb. 1872

John C. Brenneman and Donald McLeod v. John McKay

612

D111

661

1 Feb. 1872

John Higgins v. John G. Geddes

613

D112

662

3 Feb. 1872

Wrixon v. Bannatyne

614

D113

662

3 Feb. 1872

Charles Garratt v. Andrew McDermott

615

D114

662

3 Feb. 1872

Charles Garratt v. A.G.B. Bannatyne

616

D115

664

3 Feb. 1872

Thomas Spence v. François Gingras

617

D116

664

5 Feb. 1872

James W. McLaw and William Smith v. George Kellond

618

D117

664

5 Feb. 1872

James McKay Sr v. Alexander Sutherland Jr

619

D118

664

5 Feb. 1872

A.G.B. Bannatyne v. Charles Garrett

620

D119

666

5 Feb. 1872

A.G.B. Bannatyne v. John Schultz MD

621

D120

666

5 Feb. 1872

David Taylor v. David Anderson

622

D121

667

5 Feb. 1872

E.L. Barber v. Louis Vandal

623

D122

667

__ ___ ____

Edmund L. Barber v. David Veine

624

D123

667

12 Feb. 1872

Alex. McArthur v. Jno. Ormond

625

D124

667

__ ___ ____

Brian Devlin v. William Logan

626

D125

667

13 Feb. 1872

E.L. Barber v. Baptiste Morrin the Elder

627

D126

668

15 Feb. 1872

E.L. Barber v. Antoine Le Roque

628

D127

668

15 Feb. 1872

E.L. Barber v. André Goudrie

629

D128

668

15 Feb. 1872

Case name

Court session

Case List

871 Book page

Case #

Record page

E.L. Barber v. John Klyne

630

D129

669

16 Feb. 1872

E.L. Barber v. Walter Davidson and James Wheeler

631

D130

669

16 Feb. 1872

Robert Mulligan v. Solomon Hamelin

632

D131

669

17 Feb. 1872

John Marcellais v. Charles Laronde

633

D132

670

26 Feb. 1872

D.W. Hewett v. Dr John Schultz

634

D134

670

2 March 1872

D. Sinclair v. J.G. Geddes

635

D135

670

__ ___ ____

Herbert Swinford v. John G. Geddes

636

D136

671

18 March 1872

L. Hayward v. J. Geddes [sic]

637

D137

671

__ ___ ____

E.L. Edgerton v. Ryder Larsen

638

D138

671

6 April 1872

Andrew McDermot v. J.B. Holmes

639

D139

671

15 April 1872

François Gingras v. André Gaudry Sr

640

D140

672

24 April 1872

François Gingras v. Alexander Page

641

D141

672

24 April 1872

François Gingras v. Pierre Glodu

642

D142

672

24 April 1872

François Gingras v. Joseph Charette

643

D143

672

24 April 1872

François Gingras v. Joseph Ducharme

644

D144

673

24 April 1872

Antoine Gingras and François Gingras v. 645 Augustin Ladouceur

D145

673

24 April 1872

Antoine Gingras and François Gingras v. 646 Louis Lacert

D146

673

24 April 1872

François Gingras v. Joseph Lesperance

647

D147

674

24 April 1872

George Emmerling v. John Higgins

648

D148

674

27 April 1872

Augustin Grouett v. James Owens Hones 649

D149

674

27 April 1872

Wilson and Hyman v. Geo. Klyne

650

D150

675

__ ___ ____

E.L. Barber v. Joseph Huppe Sr

651

D151

675

29 April 1872

H. McKenny v. Thomas Spence

652

D152

675

__ ___ ____

William G. Fonseca v. William Logan

653

D153

676

30 April 1872

John McKenny v. Benjamin Monchamp

654

D154

676

30 April 1872

William Cosgrove v. John J. Bain, A.G. Bannatyne, and Robert Cunningham

655

D155

676

30 April 1872

Donald McLeod v. Charles Donald

656

D156

677

1 May 1872

Andrew McDermot v. John Thomas Sr

657

D157

677

3 May 1872

Alexr. McArthur v. Charles Garratt

658

D158

678

4 May 1872

Honoré Pariseau v. John Marcellais

659

D159

678

4 May 1872

Case name

Court session

872

Case List Book page

Case #

Record page

George Miller and Garner Ellwood v. Alexander M. Brown

660

D160

678

6 May 1872

Joseph A.R. McDermott v. J.G. Sanderman

661

D161

678

6 May 1872

Jean Baptiste Ducharme v. Alexander Murray

662

D162

679

6 May 1872

Andrew McDermott v. Alexr. Dhall

663

D163

679

6 May 1872

Frank J. Clarke v. John H. Donnell

664

D164

679

6 May 1872

Andrew McDermott v. Fredr. C. Mercer

665

D165

680

30 May 1872

Alexander McArthur and John Martin v. 666 W.G. Fonseca

D166

681

7 May 1872

T. L. Gray v. The Manitoba Brewery Company

667

D167

681

4 June 1872

Joseph Rémon v. Clovis Gueriere and Louis Valliere

668

D168

681

4 Jan. 1872

Louis Lacerte v. James White

669

D169

681

15 June 1872

A. McDermot v. W.C. Cowan

670

D170

682

__ ___ ____

Robert Tait v. Antoine Glodu

671

D171

682

19 June 1872

Andrew G.B. Bannatyne v. Jean Baptiste La Fournais

672

D172

682

21 June 1872

Henry Nartenyest v. Jacob Norey

673

D173

682

24 June 1872

Edmondson Sims v. Benjamin Jones

674

D174

682

27 June 1872

Edmondson Sims v. Benjamin Jones

675

D175

683

28 June 1872

Moise Ouelette v. Thomas S. Gray

676

D176

683

29 June 1872

Charles Garratt v. William Diamond

677

D177

684

6 July 1872

Alfred Boyd v. James Settee Jr

678

D178

684

18 July 1872

John Gilbraith v. George Bates

679

D179

684

19 July 1872

R. Duncan and J.C. Stuart v. James Stewart and John H. O’Donnell

680

D180

684

25 July 1872

Dr J. Schultz v. M. Meeham

681

D181

685

27 July 1872

R.A. Davis v. G.B. Spencer

682

D182

685

29 July 1872

Andrew McDermott Sr v. William Nimmons

683

D183

686

31 July 1872

Rodger Marion v. Wm. Farmer

684

D184

686

31 July 1872

Henry McKenney v. Benjamin Mayo

685

D185

686

6 Aug. 1872

Case name

Court session

Index

The numerical references are to case numbers rather than to page numbers. See the preceding Case List for the page number on which each case record begins. This volume 2 index includes the names of every litigant, judge, witness, counsel, and grand or petty juror listed in the court records or editorial comments, as well as references to all major legal processes and legally significant concepts, documents, and events. Little other substantive content of the court records is indexed. Material in endnotes to the main text is seldom referred to. Because of the altered structure of the final volume of original court records, the index does not record the involvement of Recorder Francis G. Johnson (the sole General Court judge at that point), or of specific lawyers, for cases 403 and following. The entirety of the volume may however be searched electronically in the e-book version. Since numbers were assigned to cases in only the final of the four volumes of original court records, the case numbers to which this index refers are those assigned to every case by the present editor, which are indicated in the transcribed text by enclosing brackets. Such references extend to the editorial commentaries that precede or follow some case records and every chapter. Where adjournments caused cases to be dealt with at more than one court session, the various sittings are designated by alphabetical suffixes (93a, 93b, 93c, etc.) and, although listed sequentially in the index, are actually scattered among other cases dealt with after the first sittings. They can, however, be located by consulting the Case List. The spellings of names – especially French names recorded by anglophone clerks – are wildly varied in the original records. To assist the reader, similar-sounding names have sometimes been grouped and occasional spelling modifications made in the index, although not in the transcriptions themselves. Since the educated guesses upon which those modifications have been based may not always be correct, readers are advised to exercise caution when assigning identities to the persons in question. Although the volume 1 and 2 indices are separate, they often include references to the same or related persons, events, or subjects, but perhaps spelled differently. It may therefore be advisable, where possible, to consult both volumes.

874 Aboriginals: Halfbreed land claim, 25; racism, 205; wars, 6, 325. See also Halfbreeds; Indians; treaties abortion, 238. See also concealment of birth; infanticide absentia, trial. See default judgments; trial in absentia Accocanis, 496 accounting, 28a, 29b, 29c, 103, 280a, 280b, 280c, 523 Ackland, Edward, 615 Adam, Baptiste, 264 Adam, Joseph/Josiah, 135, 615 Adams, George, 46, 81, 83, 103, 183, 472, 517 addresses to the jury. See juries, addresses and charges Addshead, John M., 536 Adhemar, William, 417b adultery, 13, 77. See also criminal conversation adversarial/inquisitorial trials, 414 advocates. See counsel aged people. See elderly persons agents, 204. See also counsel Agoulle, Pierre, 494(1) Ahnechorolning, 199 alcohol. See liquor Alexé (an Indian), 129 Allan, W.J., 454 Allary, Antoine, 548 Allemand, François, 379 American border. See United States border Amlin, Gabriel, 204 Amlin, Jean, 106 Amlin, Narcise, 366 Amlin, Solomon, 74, 93a, 113, 117, 133, 135, 212 Anderson, David, Bishop, 238, 278 Anderson, David, 622 Anderson, Eric, 443, 529 Anderson, George, 59, 67, 70, 78

Index Anderson, Harriett, 54 Anderson, James, and James, Sr, 9 Anderson, John, 6, 466–8, 580 Anderson, Miss, 77 Anderson, Mrs, 71 Anderson, Thomas, 54 animals: buffalo hunting, 156, 200, 202; dogs, 8; liability for, 124. See also horses; oxen animals, injury to, 5, 34, 44, 85, 164, 188, 191, 222, 265, 266b, 273, 274, 286, 292, 344b, 349 animals, lost, 96, 156, 181, 189, 223; crying out, 96 animals, ownership, 12, 50, 54, 69, 96, 105, 108, 121, 183, 185, 198, 204, 218–20, 243, 258, 379, 415a, 418, 425, 431a, 431b, 448 animals, theft, 248, 249, 286 Antil, George, 152, 154 Antil, James, 149 Apistain (an Indian), 224 appeals, 103, 179, 372, 395, 452a, 452b. See also retrials arbitration, 162, 171, 255, 260, 280b, 304, 352, 371, 418, 503, 541. See also mediation; settlement of civil actions Arcand, Alexandre, 256 Arcand, Joseph, 467 Archibald, Adams, Lieutenant Governor, 455a ardent spirits, sale of, 14, 18, 40–3. See also liquor Armstrong, Caroline, 81 Armstrong, Elliot, 296 Armstrong, James, 149, 152, 154, 193, 289, 296 Armstrong, Joseph, 89, 149, 193, 296 Armstrong, Mrs, 81 arson, 51, 58, 252, 296, 391 Aseemaykeezeek, alias Grey Eyes, 176, 235 Asham, Hanah, 46

Index Ashburton Treaty, 133 Askeepucegoose, 128 assault, 4, 33, 35, 59, 67, 70, 125, 126, 169, 454, 456, 457a, 457b, 457c, 467, 471, 475, 486, 487, 501 assault, indecent, 494. See also rape assault, scalping, 471 assault and battery, 32, 46, 56, 71, 91, 97, 101, 102, 109, 263, 331b, 432, 433a, 433b Asseweepenase, alias Boxer, 224, 225 Assiniboia, Board of Works, 293 Assiniboia, clerk of courts. See court clerks Assiniboia, constables. See constables Assiniboia, council and governor. See council and governor of Assiniboia Assiniboia, court appeals, 77 Assiniboia, court jurisdiction, 49a, 211 Assiniboia, court records. See court records Assiniboia, court sittings. See inquests; preliminary hearings; special court sittings Assiniboia, courts, petty sessions. See petty courts of Assiniboia Assiniboia, General Quarterly Court. See General Quarterly Court of Assiniboia/Manitoba Assiniboia, governor. See governor of Assiniboia Assiniboia, laws, 5, 19, 30, 36, 145, 150, 172, 179, 197, 370a, 414, 452b Assiniboia, Municipal District, 211 Assiniboia, provisional government, 455a Assiniboia, sheriffs. See sheriffs Assiniboine, Baptiste, 224 Assiniboine (an Indian), 118, 119 Atkinson, John, 101, 128 Atkinson, John, Mrs, 238 Atkinson, Sarah, 464a, 464b Atkinson, Thomas, 39, 121

875

attorney general. See Clarke, Henry J. attorney general discretion, 501. See also stay of proceedings Aubert, Père, Reverend, 117 autopsies, 116a, 211. See also coroners; inquests Ayassooquum, 3 Ayot, Pierre, 402 Ayotte, 79, 106 Ayotte, F., 138 Ayotte, Gonzaque, 143 Ayotte, Jean Baptiste, 37 Ayotte, Louis, 72, 135 Badger, John, 531, 606, 614, 657 bail, 10, 88, 179, 203, 238, 455a, 455c, 455d, 457b, 463a, 493a, 501. See also recognizances bail, forfeiture, 120. See also estreatment Bailey, Richard, 352 Bailey, Robert, 76 Bailey, Sergeant, 81 bailment, 131, 156, 181, 189, 217, 222, 273, 292, 349 Bain, John F., 483, 484a, 484b, 485, 501, 553, 578, 655 Bakie, John, 376 Baldwin, James, 518 Ballenden, John, 4, 68, 77 Ballenden, Sarah/Mrs John, 77 Ballendine, George, 218 Ballendine, James, 423a Ballendine, Widow, 423a banishment, 325 Bannatyne, A.G.B., 77, 177, 179, 190, 197, 238–40, 244, 256, 273, 302, 308c, 349, 357, 376, 378, 400, 417a, 417b, 426, 434, 468, 476, 501, 530, 532, 553, 578, 579, 599, 606, 614–16, 620, 621, 655, 672 Bannatyne and Begg, 528 Bannerman, Alexander, 13, 69, 83, 125, 126, 464b, 468, 471, 494, 530, 579

876

Index

Bannerman, Daniel, 494(1) Bannerman, Donald, 13, 36, 74, 93a, 101, 113, 153, 188, 226, 238–40, 340, 472 Bannerman, George, 74 Bannerman, Samuel, 188 Baptiste, Yellow, 211 Barber, Edmund L., 195, 416, 417b, 543, 623, 624, 627–31, 651 Barnabé [name variant]. See also Bernabé Barnabé, A., 108 Barnabé, Narcise, 283 Barnston, George, 77 Barrard, Baptiste, 331b Barron, Pierce, 143, 144, 146, 149, 184, 187a, 187b, 260, 449 Barrow, Charles, 108 barter, 152, 429 Bartlett, Philandre, 467, 468 Barton, T.H., 530 Bates, George, 679 battery. See assault and battery Battoche, Baptiste, 5, 6 Baylis, Arthur, 472 Beads, Jacob, 184 Beads, Robert, 184 Beariau, Maxime, 483 Beaseau, François, 122 Beaucas, Joseph, 296 Beauchamps, Jerome, 156 Beauchamps, Pierre, 91 Beauchemin, André, 243 Beauchemin, Baptiste, 5 Beauchemin, Benjamin, 50 Bedman, James, 581 Bedson, Samuel, 472 Begg, Alexander, 417a, 417b, 451, 455c Begg, Charles, 528 Belcourt, Georges, Reverend, 68 Bell, Charles N., 548 Bellefeuille, Raphael, 484a, 485, 532 Belleheumeur, Michel, 55

Bellehumeure, Jean, 121 Belles, William, 474 Benard [name variant]. See also Bernard; Berrard Benard, Pierre, 8 bench warrants, 455c Benson, John R., 476, 595 Berar, André, 486 Berar, François, 476 Bercier, Baptiste, 156, 466 Berdic, Mr, 181 Berecau, François, 143, 368 Bere, Montague, 316, 370a Berland, Alexé, 56, 74 Berland/Bréland, Pascal, 25, 68, 108, 121, 187–205 Berland/Bréland, Patrice, 121, 191, 437a Bernabé [name variant]. See also Barnabé Bernabé, Abraham, 73 Bernabé, Alphonse, 373 Bernard [name variant]. See also Benard; Berrard Bernard, Louis, 5, 7, 72 Bernard, René, 179 Berrard [name variant]. See also Benard; Bernard Berrard, 258 Berrard, Baptiste, 143 Berrard, Louis, 78, 100, 102, 107, 117, 124, 135, 144 Berrard, Pierre, 84, 86, 94, 105, 110, 113 Berreault, A., 124 Berrgault, Urbain, 12 Berston, Joseph, 238 Berston, William, 108 Betson, Sergeant, 203 bias, 77, 131. See also conflict of interest; judge litigants; substantial justice Bias, John, 572 bias against Indians, 205. See also Indians

Index bilingualism. See Indians, language; interpreters; juries, language bills of exchange, 7, 113, 291, 327. See also negotiable instruments bills of indictment. See indictments Bird, Curtis J., Dr/Coroner, 211, 238, 250, 321, 325, 455a, 512 Bird, Edward, 183, 257 Bird, Elizabeth, 238 Bird, Frederick, 50 Bird, George, 46, 55, 57, 58, 60, 93a, 286, 425 Bird, Henry, 50, 51 Bird, James, 1–4, 8–18, 27, 28, 69–71, 77, 130, 245, 277, 335, 380, 486 Bird, John, 266b Bird, John James, 485 Bird, Joseph, 4, 9, 45, 54, 57–9, 103, 116b, 119, 128, 130, 141b, 183 Bird, Mary, Mrs, 179, 183 Bird, Morris, 561 Bird, Mrs, 150 Bird, Philip, 50 Bird, Thomas, 266a, 266b Bird, William/William, Sr, 81, 83, 100, 102, 109, 116b, 125, 126, 141a, 141b, 141c birth, concealment, 116b, 321, 453. See also infanticide bishops. See Anderson, David, Bishop; Taché, Alexandre-Antonin, Bishop Black, Alexander, 69, 228, 486 Black, John, 35, 77, 87–93a, 93b, 94–7, 226–66a, 266b, 267–77, 278, 280d, 308b, 308c, 310b, 311–23a, 323b, 323c, 324–8a, 328b, 328c, 329–31a, 331b, 332–6a, 336b, 337–42a, 342b, 343, 344a, 344b, 345–54a, 355–64, 414, 415a, 416, 417a, 418, 419a, 420– 2b, 423a, 424–30, 432, 432a, 433a, 434, 452b, 453, 454. See also court clerks; recorders of Rupert’s Land Black, John, Mrs, 77

877

Black Robe, Chief, 6 Blanc, Aimé, 473 Blondin, Louis, 12, 349 Blondin, Marie, 414, 490 boat crews, 368 boats. See steamboats; York boats Bodoin, Joe, 240 Boeneman, John C., 610, 612 Boisvert. See Larose, Frank Bonamece, Toussaint, 240 bond, bail. See bail; recognizances Bonneau, Pierre, 121 borders. See United States border Bouché/Boucher, Baptiste/Jean Baptiste, 8, 80, 203, 494(1) Bouché, John Marie, 108, 117 Boucher, 36, 45 Boucher, Esidore, 254 Boucher, J.M., 122, 124, 134 Boucher, Louis, 517 Boucher, Paul, 192 Boudreau, François, 55, 73, 106 Boulanger, Abram, 156 Bourassa, Angèlique, 200 Bourassa, Joseph, 223 Bourette, François, 46 Bourk/Bourke/Bourque, John, 4, 6, 39, 44, 121, 141, 169, 238, 372, 425, 486 Bourk, Owen, 296 Bourk, Walter, 108, 164 Bourstick, Mr, 364 Bousquet, Henri, 285, 428 Bousquet, Louis, 56, 117, 135 Bouvette, Charles, 225 Bouvette, François, 69, 98, 105, 113, 138, 376 Bouvette, Margarete, 117 Bouvier, Baptiste, 121 Bown, Walter R., Dr, 238, 404 Boxer. See Asseweepenase Boxer, Mrs, 224 Boyd, Alfred, 566, 678 Boyer, Baptiste, 45, 55, 151, 269, 455c

878

Index

Boyer, Isidore, 517 Boyer, Pierre, 6, 91, 121, 135, 144 Boyer, William, 486 Braconnier/Broconnier, Baptiste, 8, 85, 121, 220, 256, 518 Braconnier/Broconnier, Madame, 102 Braconnier, Sarah, 238 Braso, Louis, 204 breach of promise of marriage, 55, 290. See also seduction breaking and entering, 79, 88, 107. See also burglary; home invasions; housebreaking Bréland [name variant]. See also Berland; Berland/Bréland Bremerman, John, 575 Bremner, Jenevieve, 223 Bremner, William, 361 bribery, 256 Broconnier [name variant]. See Braconnier Brontier, Xavier, 156 Brown, 332 Brown, Alexander M., 501, 540, 541, 660 Brown, Corporal, 80 Brown, Henry, 17, 27, 32, 37, 46, 56, 60, 76, 103, 110, 238 Brown, Magnus, 66, 77, 93a, 98, 118, 130, 131, 136, 141b, 146, 278 Brown, Magnus, Mrs, 77 Brown, Nancy, 97 Brown, Peter, 44 Brown, Thomas, 27, 28, 50, 70, 467, 468 Brown, William, 47, 100, 102, 110, 125, 126 Brown, William, Mrs, 238 Bruce, Antoine, 19, 79, 115 Bruce, Baptiste, 85, 94, 105, 124, 135, 144, 199, 417b, 455c Bruce, James/James, Sr, 13, 88, 116b, 119, 122, 124, 134, 136, 138, 425

Bruce, John, 151, 251, 252 Bruce, Louis, 68, 133 Bruce, M., 417a Bruce, Peter, 425, 580 Bruce, Pierre, 78, 96, 190 Bruneau, François, 9, 12, 45, 68, 69, 72, 107–16b, 117–41a, 141b, 150–87a, 187b, 188–215(1), 215(2)–66a, 266b, 267–77 Bruneau, Thomas, 243 Bruneau, Vancelas, 243 Brymner, William, 534 Bubar, George A., 581 Buchanan, Eliza, 215(1) Buchanan, William, 500, 501 Buckingham, William, 462 buffalo hunting, 156, 200, 202 Bulmer, Sergeant John, 203 Bunn, Alfred, 360 Bunn, Jacob, 242 Bunn, John, 286 Bunn, John, Dr, 1–7, 10–29a, 29b, 29c– 49a, 49b, 50–68, 77–93a, 93b, 94–109, 113–16a, 116b–41a, 141b, 141c, 147– 87a, 187b, 188–205. See also recorders of Rupert’s Land Bunn, Thomas, 149, 238, 354b, 404, 423a, 424, 425. See also court clerks Bunn, William, 88, 116a, 130, 131, 238– 40, 360, 380, 381, 478, 494(1) Burdick, Mr, 181, 430 Burgess, Thomas, 35 burglary, 115, 132, 133. See also breaking and entering; home invasions; housebreaking Busier, Baptiste, 517 Butler, John, 35 Butts, John, 143, 144, 146 Byers, John, 390 Cadman, Joseph, 552 Cadot, Joseph, 357 Cadotte, Michell, 100

Index Cadotte, Pierre, 478 Cahkeetook, Mrs, 240 Calder, James, 49a, 49b Calder, Thomas, 476 Caldwell, W.B., Major/Lieutenant Colonel, 29b, 29c, 49b, 50, 51–77, 79, 81–92, 93a, 93b, 94–115, 116b–34 Cameron, 456 Cameron/Cammeron/Camrom, Alexander, 220, 229, 238, 360, 372, 514 Cameron/Cammeron/Camrom, Hugh, 6, 32, 35, 47, 52, 79, 168, 229 Cameron, Thomas, 39 Cammeron, James, 95 Cammeron, John, 238 Cammeron, Sandy, 344a, 344b Campbell, Flora, 77 Campbell, Roderick D., 358, 483 Canada, confederation, 455a Canada, courts. See courts of Manitoba Canada, laws, 483. See also jurisdiction Canada, Pierre, 316, 349, 464b Canada Jurisdiction Act, 49a, 211 Canadians, 68 Cantara, Modèste, 230 Capenesseweet, 6 capital punishment, 6. See also commutation of sentence Caplette, Baptiste, 121, 214 Caplette, Denis, 45, 455c Caplette, Joseph, 45 Caplette, Louis, 45, 140 capot, 72 Caranegunegan, 199 Cardinal, Alexis, 48 Cardinal, Jeremie, 368 Carey, Daniel, 676 Carey, George M., 1–17, 19, 20–34 Carran, Jean, 367 Carribeau, Baptiste, 19 Carrier/Carrière, Adriane, 243 Carrier/Carrière, Alexis, 4, 25

879

Carrier/Carrière, André, 5, 46, 52, 56, 78, 83, 91, 100, 102, 122, 138, 496, 548, 619 Carrier/Carrière, Antoine, 50 Carrier/Carrière, Daniel, 135, 429, 486 Carrier/Carrière, Elie, 476 Carrier/Carrière, François, 258 Carrier/Carrière, Julia, 292 Carrier/Carrière, Theodore, 78 carriers, 131, 140, 195, 221, 246, 247, 305, 308c, 318, 344b, 360, 372, 417a, 417b. See also bailment; negligence; Red River carts; York boats Carron, Antoine, 25, 46, 72, 78 Carron, J.B., 4 carts. See Red River carts Casseepas, 119 Catfish, The, 11 Chamberlain, John, 238 Champagne, Emanuel/Emil, 25, 37, 45, 73, 110 Champayne, Jean Baptiste, 91 Champeigne, 79 Changrée, Louis, 220 Chapman, John, Reverend, 238 Charboneau, Baptiste/Jean Baptiste, 19, 45, 78, 100, 117, 303 Charboneau, Betsy, 72 Charboneau, Constable, 104 Charboneau, David, 72 Charboneau, Madame, 72 Charette, Baptiste, 417b Charette, David, 619 Charette, François, 516 Charette, Joseph, 91, 643 charges to the jury. See juries, addresses and charges Charrette, Daniel, 493b, 496 Chart, Mrs, 77 charter of Hudson’s Bay Company, 49a, 68 Chartier, Thomas, 489 Chartrain/Chatras, Paulette, 211, 605

880

Index

Chartrain, Isabelle, 211 Chatras, Pierre, 606 chattles, ownership, 48, 72, 626, 683. See also replevin chattles, trespass to. See animals, ownership; conversion; detinue; replevin Chegan, 127, 128 Chelsea Pensioners, 59–61, 65–8, 70, 80, 81, 89 cheques, 7. See also negotiable instruments Chequewaysee, 213 children, 242; crime, 173, 241, 252, 456; oaths, 67; parental liability, 383. See also concealment of birth; guardianship; infanticide Chisholm, Angus R., 581 Chisholm and Bubar, 581 Christie, Alexander/Alexander, Jr, 1–49a, 36 Cire. See Sayer civil-criminal confusion, 72, 83. See also prosecution, private civil damages, 151. See also token damages and fines Clair, Margaret, 331b Clare, James, 308c, 320–3a, 324–8a, 329–31a Clark, Jesse, 297, 298 Clark, Mr, 256 Clarke, Frank J., 664 Clarke, Henry J., 472, 483, 484a, 484b, 485, 493b, 494, 496, 501 Clarke, John, 265 clemency. See commutation of sentence Clements, John, 472 clerk of courts. See court clerks clerk testimony, 355 Clouston, Constable, 189, 266a Clouston, James, 183, 431a, 431b, 472 Clouston, Jane, 179, 183 Clouston, Robert, 4, 35, 50, 52

Clouston, William, 81, 83, 107, 109, 128, 136, 141b, 151, 152, 154, 220, 296 Cochrane, Henry, Reverend, 384 Cochrane, William, Reverend. See Cockran, William, Reverend Cockran, William, Mrs, 77 Cockran, William, Reverend, 49a, 49b, 77, 238 Coldwell, William, 461, 462 Coldwell and Cunningham, 461, 462 Colin, Antoine, 483, 484a, 484b, 485 Collins, Patrick, 103 Collins, Thomas, 463, 463a Colvile, Eden, 77–9, 81–92, 93a, 93b, 94–7 Comber, Edward, 538 Commis. See Goselin, François, dit Commis commissioned evidence, 238 commutation of sentence, 6, 58, 93b, 123, 129, 238, 325, 468, 483 Comptois, Annette, 191 Comptois, Sophia, 266b concealment of birth, 116b, 321, 453. See also infanticide conduct money. See costs; witnesses, expenses and fees confederation, Canada, 455a conflict of interest, 7, 36. See also counsel testimony; Hudson’s Bay Company, as litigant; judge counsel; judge litigants; judge testimony; juries, juror testimony Conkwright, John, 530 Connell/Connol, Andrew, 81, 89 Connell/Connol, Michael, 98, 103 Connol, Peter, 149 constables, 104, 115, 116a, 128, 138, 139, 147, 151, 154, 159, 246, 340. See also default judgments; police; service of documents; sheriffs contempt of court, 280d, 313–16

Index Contois, François, 484b Contois, Gilbert, 238 Contou, Henry, 496 contracts, breach of, 74, 122, 138, 139, 146, 149, 151, 162, 200, 202, 230, 283, 301, 304, 305, 319, 430, 446, 451. See also breach of promise of marriage; debt; employment, desertion from; short-measure sales contracts, frustration, 74, 254 contributory negligence, 190. See also negligence conversion, 286. See also animals, theft; detinue Cook, Charles, 54, 57–9, 61, 129 Cook, Henry, 15, 128, 302, 372 Cook, Jeremiah, 80, 109 Cook, Joseph, 36 Cook, Martin, 494, 561, 615, 619, 657 Cook, Mary, 93b Cook, Matthew, 447 Cook, Roderick, 466, 468, 471 Cook, Samuel, 37, 46, 55, 60, 77, 123 Cook, Thomas, 12 Coombs, Joseph M., 454 Corbett, G.O., Reverend, 168, 238, 278 Corbett, Mrs, 238 Cornish, Francis E., 648, 680, 683–5 coroners, 78, 80, 116a. See also inquests Corrigal, Edward, Mrs, 288 Corrigal, James/James, Constable, 97, 264 Corrigal, John/John, Constable, 97, 184, 199, 207, 425 Corrigal, Mary, 97, 123 Corrigal, Thomas, 484a Corrigal, W., 561 Corrigan, A., Mrs, 59, 103 Corrigan, Thomas, 81, 103 Cosgrove, William, 501, 553, 578, 655 costs, 344b, 435, 517, 524, 538, 605, 682

881

council and governor of Assiniboia, 163. See also Public Interest counsel, 35, 68, 113, 130, 181, 203, 235, 238, 252, 296, 311, 354a, 414, 415a, 417a, 420, 425, 426, 434, 454, 472, 483, 484a, 484b, 485. See also lawyers, professional; prosecutors counsel judge, 77 counsel testimony, 425 counterclaims and offsets, 221 Courchaine, Baptiste, 174, 175 Courchêne, Alexis, 368 Coursol, Michael, 59 court appeals, 77 court clerks, 70, 125, 126, 169, 211, 311, 404, 424; clerk testimony, 355. See also Black, John; Bunn, Thomas; prosecutors; Smith, William R./ William R., Jr courthouses, 68, 452b, 455c, 472. See also demonstrations, riots and uprisings; jailbreaks court jurisdiction, 49a, 211 court records, 75, 503; suppressed/ altered records, 75, 77 court sittings. See inquests; preliminary hearings; special court sittings courts of Assiniboia, petty. See petty courts of Assiniboia courts of Assiniboia, quarterly. See General Quarterly Court of Assiniboia/Manitoba courts of Manitoba, 501, 685; referee, 676 Courtelle, Nicholas, 122, 162, 230, 304, 305, 524 Cousins, James, 527 Coutois/Coutou/Coutour/Coutu, Henri/Henry, 240, 484a, 531, 582, 597, 606 Cowan, W.C., 670 Cowan, William, Dr, 77, 80, 107– 16a, 116b, 120–34, 236–58, 323b,

882

Index

323c, 328b, 328c, 331b, 332–6a, 336b, 337–42a, 342b, 343, 344a, 344b, 345–54a, 355–64, 414, 452b, 453, 454 Cowley, Archibald S., 606 Cox, George, 265 Cox, Nancy, Mrs, 265 Cram, Mr, 247 Cramer, Charles, 35 Cramer, Margaret, 35 crime frequency, 211 criminal-civil confusion, 72, 83. See also private prosecution criminal conversation, 1, 13. See also adultery Cromarty, William, 490 cross-examination of witnesses, 97 Crown, the, 455a, 455b, 455c, 455d, 456, 457a, 463a, 464a, 468, 493a, 493b, 494–7, 499, 500. See also Public Interest; Public Welfare; Queen, the; Regina Crowson, Joseph, Constable, 484a, 485, 532, 536 crying out, animals, 96. See also animals, lost culpable negligence, 116a, 116b. See also negligence Cummings, Cuthbert, 97 Cummings, Malcolm, 32, 455c Cummings, Peter, 123 Cunningham, Constable, 179 Cunningham, Robert, 461, 462, 501, 578, 579, 655 currency, 7, 508. See also negotiable instruments Curtis, Charles, 254, 361, 382 Curtis, Francis, 181 customs duties, 26, 206, 246, 294, 343. See also Goulet, Roger; smuggling cutting hay out of season, 36. See also hay privilege Cyre. See Sayer

Dacotah, Joseph, 446 Dahl, Alexander, 13, 33, 116a, 149, 303, 355, 425, 476, 478, 494(1), 515, 526, 663 Dahl, Alexander, Constable, 485 Dahl, George, 33, 51, 64, 149, 303, 355 Dahl, John, 181 Dahl, Joseph, 181 Daigneau, Joseph, 6, 60 Dallas, Alexander Grant, 238 Daly, Bartholomew, 35 damages, civil, 151. See also token damages and fines dams, 330, 361 Daniel, Catherine, 173, 241 Daniel, Margaret, 173 Daniel, Mary, 173 Daniel, Robert, 4 Daniel, William, 420 Danion, Joseph, 144 Danneau. See Dennieu/Deneau; Dennieu/Donneau Dauphinais, Alexé, 283 Dauphinais, Baptiste, 486 Dauphinais/Dauphine/Dauphinea, Maximillian, 19, 55, 57, 58, 60, 74, 283 Dauphiny, Constable, 186 Davidson, John, 77 Davidson, John, Mrs, 77 Davidson, Walter, 499, 500, 501, 631 Davies, Nancy, 97, 101 Davis, R.A., 682 Davis, William, 148 Davison, Walter, 541 Dease, Francis M., 4–6, 8, 25, 50, 52, 62, 69, 72, 93a Dease, John, 427, 438 Dease, William/William, Jr, 78, 79, 238– 40, 246, 247, 415a, 417a, 490, 545, 555, 580, 582 death penalty. See capital punishment; commutation of sentence

Index D’Eau [name variant]. See also D’Neau D’Eau, Nancy, 67 debt, 75, 92, 104, 106, 111, 113, 134, 140, 142, 144, 147, 152, 153, 159, 161, 165, 170, 177–80, 182, 184, 186, 195, 196, 201, 202, 205, 207, 209, 210, 214, 215(2), 216, 221, 226–9, 231–4, 236, 237, 245, 253, 256, 257, 259–62, 264, 267–72, 275–80a, 280b, 280c, 280d, 281, 282, 284, 285, 287, 295, 297–9, 302, 306a, 306b, 307, 312, 314–17, 320, 322, 324, 326, 327, 329, 332, 333, 335, 336a, 336b, 337– 9, 341, 342a, 345–8, 350, 353, 354a, 356, 358–60, 362, 367, 371–5, 377, 380–6, 387b, 388, 392, 393, 398– 403, 416, 419a, 419b, 420, 421, 426– 9, 435–7a, 438, 439, 441, 449, 450, 460a, 460b, 513–16, 523, 531 debt, imprisonment for, 205 Dechamps, François, 86 defamation, 2, 39, 47, 71, 76, 77, 82, 117, 135, 278, 323a, 323b, 323c, 404, 445, 461, 462 default judgments, 92, 147, 148, 160, 165, 170, 177, 179, 182, 184, 186, 189, 199, 207, 227, 231–3, 257, 259, 261, 262, 266a, 266b, 282, 306a, 307, 312, 317, 322, 324, 326, 335, 336b, 339, 341, 343, 346, 350, 353, 354a, 356, 358, 359, 362, 367, 368, 373–5, 377, 387a, 419a, 427, 429, 442, 444, 450, 460a, 460b, 539, 544, 568–70, 574, 577, 588, 589, 597, 599, 601, 607, 611, 622, 627, 630, 638, 640, 641–4, 647, 658, 659. See also constables; service of documents Dejarlais, Antoine, 185, 325, 604, 605 Dejarlais, Baptiste, 587 Dejarlais, Louison, 571 Dejarlais, Michel, 132 delay. See laches Delbruier, Norbert, 485

883

Delorme, Alexé, 65, 73, 156 Delorme, Baptiste, 91, 94 Delorme/D’Lorme, Bergie, 73 Delorme, François, 530, 579 Delorme, Joseph, 45, 50, 476, 484b, 518 Delorme, Louis, 230 Delorme, Urbane, 204 Delorrier, John, 483, 605 Delorrier, Norbert, 484a Demarais, Charles, 11, 107, 136, 167 Demarais, François, 166, 167 Demarais, Gabriel, 50 Demarrais, Baptiste, 73, 414 Demarrais, John, 325 demonstrations, riots and uprisings, 67, 68, 212, 238, 404, 455a; provisional government, 455a. See also jailbreaks; law enforcement; petitions Deneau. See Dennieu/Deneau; Dennieu/Donneau Denig, Edwin Thompson (minor heirs of), 300a, 300b Dennieu/Deneau, Amable, 94 Dennieu/Donneau, Joseph, 55, 78, 84, 86 Dennison, William, 101, 220, 425 deodand, 6 DePlainval, Louis, Lieutenant/Captain, 455c, 523, 595 DePlainval, Louis, Mrs, 548 desertion from employment. See employment, desertion from Desgeorges, Gabriel, 504 Desjardin, Antoine, 50 detinue, 378. See also animals, ownership; conversion Devlin, Brian, 331a, 331b, 391, 404, 626 Devlin, Daniel, 496 Devlin, William, 626 Diamond, William, 598, 677 Dickinson, E.H., 548 Dillworth, William, 517

884

Index

Diquere, John, 517 disabilities, mental, 13, 123, 473 discrimination, 131, 205 discrimination against Indians, 205. See also Indians distilleries, 18, 43, 395 D’Lonais, Joseph/Joseph, Sr, 106 D’Lorm/D’Lorme. See Delorme D’Neau [name variant]. See also D’Eau D’Neau, Amable, 121 documents, service of. See service of documents dogs, 8. See also animals Doherty, James, 70, 82, 89 Doherty, Mrs, 71, 81 Dolan, Martin, 80, 134 domestic servants, 28, 116a, 238 domestic services, loss of, 55, 73. See also seduction Donald, Charles, 656 Donald, Elizabeth, 218 Donald, William/William, Sr, 4, 31, 55, 59, 61 Donaldson, Captain, 296, 341 Donneau. See Dennieu/Deneau; Dennieu/Donneau Donnell, John H., 664 Doolan, Mrs, 214 Dornon, Barnard, 81 Douglas, Peter B., 483, 484a, 484b, 485 drafts. See bills of exchange; negotiable instruments Drever, William/William, Sr, 93a, 98, 107, 109, 116b, 128, 238–40, 244, 284, 287, 288, 312, 328a, 328b, 328c, 348, 376, 385, 401, 448, 501, 564 droughts, 368 drownings, 78, 80 drunkenness, 325, 455c Dubois, François, 95 Dubuc, Joseph, 484a, 484b Ducharme, Amable, 649

Ducharme, Baptiste/Jean Baptiste, 548, 662 Ducharme, Caspar, 56 Ducharme, Dominique, 8, 12, 68, 93a, 117, 124, 478 Ducharme, Fallerdeau, 362 Ducharme, François, 517, 576, 601, 649 Ducharme, Joseph, 121, 207, 644 Ducharme, Olivier, 56, 60, 91, 121, 124 Ducharme, Prospère, 12, 68, 96 Duchêne, Moyes, 368, 379 Duffin, James, 203 Dufresne, Joseph, 303 Duganne, Elizabeth, 240 Duganne, Mary, 240 Dumais [name variant]. See also Dumas Dumais, Antoine, 151 Dumais, Charles, 86 Dumais/Dumas, Michel, 37, 50, 52, 76, 93b, 96, 124, 133 Dumais/Dumas, Pierre/Pierrish, 124, 208, 230, 243, 315, 377, 386, 429 Dumand, Michel, 379 Dumas [name variant]. See also Dumais Dumas, Isadore, 108 Dumont, Gabriel, 189 Dumont, M., 122 Dumuron, Jacqo, 80 Duncan, Anne, 116a, 116b Duncan, Eliza, 116a, 116b Duncan, R., 680 Dunord, Antoine, 45 Du Nord, Antoine, 230 Dunord, L., 124 Dupuis, Baptiste, 524, 548, 619 Durand, Zephirim, 483 Durcard, Baptiste, 122 Eaton, C., 215(2) ecclesiastic parole, 78 Egan, Mrs, 77, 81, 82 Egan, Private, 80 Egerton, Erastus J., 554, 556, 635

Index ejectment, 517, 518, 530. See also land, trespass elderly persons, 122, 162, 230, 260, 304, 524 Ellwood, Garner, 660 Else, Henri/Henry, 169, 193, 484b, 490 Emmerling, George, 543, 648 employers’ liability, 266b employment, desertion from, 28, 138, 139, 151, 155, 199, 283, 352, 368 employment, wages, 160 England, laws: Canada Jurisdiction Act, 49a, 211; Fur Trade Regulation Act, 49a; Statute of Frauds (1677), 157. See also Hudson’s Bay Company, charter epidemics, 19 Esaste, Gonzaque, 156 escape, 3. See also jailbreaks Eskeepucegoos, 118 estates. See wills and estates estreatment, 89. See also bail, forfeiture Evangelists, Holy, 6, 35 evidence: commissioned, 238; hearsay, 73, 77, 97; onus of proof, 472; presumption of innocence, 203, 296; Queen’s evidence, 88. See also oaths; testimony; witnesses executive clemency. See commutation of sentence ex parte. See trial in absentia extradition, 133 Fainyeant, Jean Baptiste, 108 Fairbanks, William, 190 fair fight, 70 fairness. See conflict of interest; substantial justice Falcon, François, 517 Falcon, Onesime, 518 Falcon, Pierre, 202 false imprisonment, 238, 501 false pretences, 83, 311

885

Falster. See Folster Farmer, William, 684 Farquharson, Mr, 555 Favel, Humphrey, 150, 167, 250 Favel, John, 224, 238, 256 Favel, Joseph, 139, 161 Favel, Sally, 250 Fayant, Baptiste/Jean Baptiste, 25, 592, 603 felony, 203, 239 Fenian raid, 455a, 483, 484a, 484b, 485, 501 Ferguson, John, 204 ferries, 190, 293, 365 Fidler, Alban, 4, 8, 13, 25, 28, 35, 51, 56, 58, 59, 61, 76, 103, 238–40 Fidler, Alexander, 238 Fidler, Ann, 238 Fidler, Antoine, 185 Fidler, Cephas, 193 Fidler, Charles/Charles, Sr, 32, 52, 76, 81, 101, 107, 109, 118, 128 Fidler, Clement, 256 Fidler, Cornelius, 169, 425 Fidler, Edward, 89, 425 Fidler, Elizabeth, 238 Fidler, George, 256, 325 Fidler, James, 238 Fidler, Joseph, 256 Fidler, Peter, 141b, 238, 258 Fidler, Thomas, 36, 484a Field, Henry, 610 Fielding, Alexander, 248, 249 fines, 10. See also commutation of sentence; token damages and fines Finlay, George, 472 Finn, James, 81 firearms, 68, 456, 467. See also gunpowder fires. See arson; grassfires Firth, Thomas, 13, 29a, 29b, 35, 54, 59, 61, 69, 93b, 94 Fisher, Alexander, 269

886

Index

Fisher, Ambroise, 297 Fisher, George, 486 Flammond, François, 243, 526 Flammond, Joseph, Jr/Sr, 100, 106, 115, 230, 243, 304, 368 Flammond, Louis, 258 Flammond, Thomas, 304, 368 Fletcher, John, 238 Flett, Ann, 203 Flett, Charles, 84, 226 Flett, Donald, 472, 493b, 518, 526, 531, 606 Flett, George, Jr/Sr, 39, 44, 94, 111, 121, 134, 215(1), 265 Flett, James/James, Jr, 144, 146 Flett, John, Sr, 265 Flett, Margaret, 136 Flett, Mary, 93b Flett, Peter, 72 Flett, Robert, 110, 121 Flett, Sarah, 39 Flett, Thomas, 265 Flett, William, 79, 83, 93a, 93b, 100, 102, 108, 113, 123, 130, 131, 149, 165, 180, 472 flogging, 85 flooding, 330, 361 Fobister, John, 472 Fois/Foix, Toussaint, 106, 190 Folds/Foulds, John, 51, 55, 59, 61, 80, 81, 107, 109, 119, 128, 467 Folds/Foulds, Samuel, 80, 81, 118, 143 Folster/Falster, John, 13, 88, 93a Folster, Janet, 13 Folster, William, 4, 13, 486 Folster, William, Mrs, 13 Fonseca, William G., 195, 229, 273, 374, 375, 501, 508, 576–7, 653, 666 Fontaigne, Baptiste, 112 Forbes, John, 260 foreign invasions, 483, 484a, 484b, 485 Fortescue, Joseph, 138, 139, 181, 203 Fort Garry, Lower, 173, 203

Fort Garry, Upper, 203 Fortney, George, 454 Fort Vermillion, Peace River, 49a forty-ninth parallel. See United States border Foss, Christopher Vaughan, Captain, 77 Foubister, James, 97, 101 Foubister, John, 97, 101 Foubister, Cne., Mrs, 97 Foubister, James, Mrs, 238 Foubister, John, Mrs, 238 Foulds. See Folds/Foulds Fowlies, John, 1, 8, 37 François (an Indian), 137 Franklin, Thomas, 296 Franks, James, 1 Franks, John, 1 Franks, William, 561 Fraser, J., 116b Fraser, James, 1, 4, 13, 127, 129 Fraser, John, 84, 86, 98, 105, 119, 160, 238–40, 244 Fraser, William, 141b, 494(1) fraud. See false pretences Frauds, Statute of (1677), 157 Frazier, Colborne, 548 Frazier, William, 486 free trade versus Hudson’s Bay Company monopoly, 68 freighters. See carriers Frobisher, Thomas, 115 Fulcher, Frederick, 476, 526 fulling, 72 fur trade, Hudson’s Bay Company monopoly, 68 Fur Trade Regulation Act, 49a Gaddy, William, 414, 466, 467, 517 Gagnon, Louis/Louison/Louison, Sr, 92, 179, 215(1) Gahagan, John, 126 Gahagan, Mrs, 128 Galarneau, Joseph, 45

Index Galarneau, Louis, 8, 45, 85, 102, 107, 151, 240 Gandreau, François, 50 gaol. See imprisonment Gardener, Thomas, 238 Gardepuis, Baptiste, 48, 74 Gardner, Richard, 472 Gardupied, Louis, 108 Garneau/Garnot/Gorneau, Flora, 246 Garneau/Garnot/Gorneau, Odilon, 496 Garrett, Charles, 197, 215(2), 296, 301, 313, 329, 330, 361, 363, 384, 395, 398, 433b, 455c, 455d, 486, 530, 531, 598, 615, 616, 620, 658, 677 Garrett, W., 620 Garrioch, C., 134 Garrioch, Gavin, 119, 136, 143, 144, 146 Garrioch, George, 435 Garrioch, John, 90 Garrioch, Peter, 10, 68 Garrioch, William, 414, 455c Gaste, Baptiste, 243 Gaste, Margaret, 243 Gaudon, Joseph, 483, 484a, 484b, 485 Gaudry. See Goudré Gaunt, James, 40, 42 Gazden, Joseph, 118, 137, 163, 179 Gazden, Joseph, Mrs, 179 Geddes, John G., 160, 240, 328c, 613, 635–7 Geddings, Clinton, 182, 197 Gendron, François, 6, 106, 133 General Quarterly Court of Assiniboia/ Manitoba, 370a, 414, 455a, 501, 685. See also recorders of Rupert’s Land Genton, Eli, 247 Genton, Joseph/Maximillian/Miliène, 78, 105, 108, 113, 140, 145, 230, 237, 238–40, 292, 304, 437a Genvenne, Pierre, 91, 135 George, Pierre, 174, 175

887

Gerald/Gerold/Gerrold, Anson R., 213, 215(2), 343, 396, 537 Gervais [name variant]. See also Jervais Gervais, Baptiste, 121 Gibeault, Bélonie, 240 Gibson, Francis, 238, 490, 561 Gibson, Hugh, 30 gifts, 152 Gilbraith, John, 679 Gingras, Antoine, 645, 646 Gingras, François, 617, 640–7 Gladieu, Charles, 18 Gladieux, Antoine, 671 Gladieux, Louis, 185 Gladieux, Pierre, 5, 46, 55, 79, 91, 117, 133, 135, 308a, 308b, 308c, 642 God’s judgment, 193 Goin, Antoine, 282 Good, James, 1, 580 Goselin, Baptiste, 74 Goselin, François, dit Commis, 413b, 431a, 464b Goselin, Joseph, 135 Goudré, Amable, 305, 494(1) Goudré/Goudrie/Gaudry, André, 8, 83, 93a, 117, 303, 349, 629, 641 Goudré, Augustin, 142, 144, 376, 416 Goulait [name variant]. See also Goulet; Goulette Goulait/Goulet, Alexé/Alexis, 6, 32, 68, 84, 102, 121, 133 Goulait/Goulette, Baptiste, 106, 255 Goulet, 68. See also Goulait/Goulet; Goulait/Goulette Goulet, C., 156 Goulet, Elézar, 524 Goulet, Julia, 211 Goulet, Moyes, 156 Goulet, Roger, 206, 208, 238–40, 244, 246, 280d, 289, 294, 308b, 308c, 310b, 311–23a, 323b, 323c, 324–8a, 328b, 328c, 331a,

888

Index

331b, 332–6a, 336b, 337–42a, 342b, 343, 344a, 344b, 345– 54a, 355–64, 376, 414, 417a, 484a, 486, 518 Goulette [name variant]. See also Goulait/Goulet; Goulait/Goulette Goullette, Moyes, 106 governor of Assiniboia, 1, 135, 155. See also Caldwell, W.B., Major/Lieutenant Colonel; Christie, Alexander/ Alexander, Jr; commutation of sentence; Johnson, Francis G.; McTavish, William governor of jail, 90 governor of Rupert’s Land, 79. See also Colvile, Eden; McTavish, William; Simpson, George, Sir Gowler, Mary, Mrs, 382, 388 Gowler, Oliver, 47, 134, 220, 238 Gowler, Oliver, Mrs, 238 Gowler, William, 493b, 561, 614, 615 Grandbois, Ambroise, 366 Grandbois, Margaret, 73 Grandbois, Pierre, 65 grand juries. See juries, grand Grant, Colin, 203 Grant, Cuthbert, 2–4, 6–10, 13–24, 34–48, 49b, 50–77, 79, 81–92, 93a, 93b, 94–6, 100, 103–9, 113–15, 116b–121 Grant, John F., 417b, 446, 534 grassfires, 51, 58, 252. See also arson Gray, Thomas S., 676 Gray, T.L., 667 Green, James, 120 Green, John, 81 Green, Stephen, 201, 203, 231, 251 Greenaway, William, 203 Grey Eyes (Aseemaykeezeek), 176, 235 Grey Nuns. See Sisters of Charity Groat, George, 13, 88, 98, 103, 127, 129, 136 Grouette, Antoine, 6, 13

Grouette, Augustin, 517, 649 Grouette, Theophile, 517 guardianship, 29a, 29b, 29c, 300a, 300b, 309, 310a, 310b, 370a, 512 Guerière, Clovis, 668 guides, 199 Guilbeau, Joseph, 55, 72, 74 Guilboch, André, 247 Gunn, Alexander, 54 Gunn, Donald, 1, 4, 25, 28, 29a, 29b, 35, 54, 57, 58, 62, 68, 77, 113, 238– 40, 258, 472 Gunn, George, 54, 493b Gunn, Jerry, 258 Gunn, John, 1, 4, 25, 32, 455c Gunn, Matilda, 54 Gunn, Robert, 258, 518, 619 Gunn, William, 58, 81, 83, 101, 129 gunpowder, 417a, 417b guns. See firearms Halcro, Joseph, 90 Halcro, Samuel, 93b Halcrow, Thomas, 4 Halfbreeds, 68; Halfbreed/Sioux/ Saulteaux war, treaty, 6; land claim, 25; Métis, 455a; racism, 205 Hall, William B., 384, 452a, 452b, 518, 546 Hallett, Henry, 19, 85, 136, 290 Hallett, James/James, Jr, 32, 81, 119, 134, 151, 152, 154, 222, 244 Hallett, Jane, 290 Hallett, William, 93b, 94, 118, 128, 238, 275, 372 Hamelin, Joseph, 472 Hamelin, Solomon, 632 Hamilton, Daniel, 494(1) Hamlin, Frederick, 55 Hancock, Clement, 488 Hanford, Mr, 417b hangings, 6. See also commutation of sentence

Index Hans, Christopher, 40 Harcus, David, 54, 455c Harcus, Widow, 54 Hardisty, Richard, 77 Hareford, Samuel, 43 Hargrave, Letitia, 93b Harkands, Joseph, 433a Harkness, André, 117, 136, 145, 157, 172, 230 Harkness, Andrew, 305 Harkness, Cecile, 5 Harkness, Peter, 365, 490, 580 Harper, James, 478 Harper, John/John, Sr, 72, 74, 79, 84, 88, 101, 110, 116a, 118, 218, 238, 493b, 496, 548, 561, 614, 615 Harper, Margaret, 494 Harper, Philip, 218 Harper, W., 494 Harriott, J.E., 68 Harris, Thomas, 364 Harrison, Auguste, 124, 208 Harrison, James, 43 Harrison, Thomas, 5, 72, 83, 91, 100, 107, 124 Hastie, Robert, 584, 609 Hayden, Felix, 580 Hayden, Peter, 10, 40–3 hay privilege, 135. See also cutting hay out of season Hayward, Lyster, 535, 567, 637 Haywood/Heywood, Charles, 32, 54, 59, 61, 84, 86, 130, 131, 141b Haywood/Heywood, Margaret, 13 hearings, preliminary, 203, 238, 414, 454, 468 hearsay evidence, 73, 77, 97 Heckenberger, Henry, 93b Heckenberger, Jane/Janet, 93a, 93b Heckenberger, Margaret, 93a, 93b Hemmand, François, 518 Henderson, Angus, Constable, 105, 116a, 116b, 127, 340

889

Henderson, Catherine, Mrs, 116a, 116b Henderson, John, 181 Henderson, Neil, 69, 151, 152, 154, 220, 355 Henderson, Peter/Peter, Jr, 32, 84, 90, 123, 218, 484a Henderson, Samuel, 9, 28, 34, 46, 69 Henderson, William, 69, 105, 108, 130, 131, 226, 455c Henry, Alexé/Alexis, 6, 135 Henry, John, 91 Henry, Madame, 135 Herd, David, Captain, 28 Hewett, D.W., 634 Hewlett, Charles H., 495 Higgins, John, 371, 503, 521, 613, 648 Hill, Griggs and Co., 511, 535, 542, 548, 559 Hill, Thomas, 476 Hillier, Thomas, 82 Hodge, George W., 467, 468 Hodgson, George, 594 Hodgson, John, 97, 101, 123, 466, 471 Hogan, John, 35 Hogg/Hogue, Joseph, 223, 490, 580 Hoggue, Louis, 344b, 361 Hoggue, Thomas, 344a, 344b Hogue, Amable, 87, 254 Holmes, James B., 318, 339, 347, 393, 399, 506, 507, 513, 563, 639. See also Putnam and Holmes Holy Evangelists, 6, 35 home invasions, 33, 125, 212, 213, 501. See also breaking and entering; burglary Hope, Thomas, 381 horses, 222, 243, 258, 273, 286, 292, 319, 344b, 366, 431a, 431b, 477, 561. See also animals Hourie, Robert, 166, 167 House, Charles H., 591–4, 603, 606 House, Joshua M., 215(2), 221, 246, 299, 345, 402, 403, 417a, 417b,

890

Index

Indians, language, 494, 496. See also interpreters; juries, language; McKay, James/James, Sr; McKay, John Indians, oaths, 6, 65, 85, 98, 118, 127, 128, 192, 224, 251 Indians, providing liquor to, 9, 11, 15–17, 19, 20–4, 30–1, 65, 98, 99, 118, 119, 127–9, 163, 172, 213, 224, 225, 235, 251, 396, 452a, 452b indictments, 4, 6, 8, 10, 93, 93a, 203, 211, 212, 238, 321, 325, 414, 424, 425, 453, 454. See also ignoramus; informations; juries, grand infanticide, 93a, 93b, 116a, 116b, 321, 453. See also concealment of birth informations, 235, 248, 265, 296, 311, 340, 389. See also indictments informers, 9, 60, 98, 235. See also restitution of liquor price inheritance. See wills and estates injury to animals. See animals, injury to Inkster, Colin, 420 Inkster, George, 496, 531, 606, 614 Inkster, James, Jr/Sr/farmer/miller, 1, 4, 6, 28, 47, 51, 82, 116b, 131, 134, 136, 138, 141b, 146, 220, 238, 493b, 531, 606, 614 Iamthapeting, 65 Inkster, John, 1, 4, 13, 19, 50, ignoramus, 93a, 463, 470, 474, 475, 52, 83, 125, 126, 138–40, 141a, 160, 478, 479, 497, 499, 500. See also 238–40, 354a, 420, 496, 531, 597, indictments 606, 614 importing. See customs duties; Inkster, William, 141b, 141c, 146, 333, smuggling 350, 417a, 417b, 421, 597 imprisonment, 8, 35, 248; false imprisonment, 238, 501; hard labour, innocence, presumption of, 203, 296 inquests, 78, 80, 116a, 179, 211, 453. 242, 248, 464b, 466, 467, 468; jails, See also autopsies; coroners 455c; meals, 239; solitary, 8. See also inquisitorial/adversarial trials, 414 jailbreaks interpreters, 4, 8, 78, 79, 84, 98, 110, imprisonment for debt, 205. See also 121, 125, 325, 351, 414, 471, 483, debt 484a, 484b, 485, 490, 494, 496. See indecent assault, 494. See also rape also juries, language Indian, an, 137, 164, 205 invasions, foreign, 483, 484a, 484b, 485 Indians: courts’ jurisdiction over, 6; discrimination against, 205; wars, 325. Irvin/Irvine/Irwin, George, 80, 88, 90, 107, 109, 425 See also treaties

419a, 419b, 472, 554, 587–93, 596, 603–7 housebreaking, 240, 241. See also breaking and entering; burglary; home invasions Howard, Rice M., 483, 548 Howell, Hugh, 61 Hudson, John, 90 Hudson’s Bay Company, 205, 368; Lane as agent, 77, 204, 256, 447; territory, 49a; trade monopoly, 68 Hudson’s Bay Company, as litigant, 36, 68, 138, 139, 199, 295, 509, 510, 519 Hudson’s Bay Company, charter, 49a, 68 Hughes, Samuel, 7, 56 Humphrey, Joseph Thomas William, 480–2 Hunt, Frank Larned, 238 Hunter, Archdeacon James, 238, 278 Hupée, Baptiste, 194, 213, 232, 304 Hupée, Jean, 230 Hupée, Joseph, 106, 651 Hussey, Philip, 551 Hyde, David, 514

Index

891

Johnstone, John, 12 Johnstone, Thomas, 455a, 455b, 455c, 455d Johnstone, William, 424, 455c, 466, 471, 472, 486, 518, 526 Jollibère, Pierre, 108 Jollibois, 200 Jollifoux, Madame, 283 Jones, Benjamin, 674–5 Jones, Charles Edward, 479, 490 jail, governor of, 90 Jordan, Hector, 52 jailbreaks, 3, 238, 354a, 404, 455d, 471. See also demonstrations, riots and Jourbin, Ambroise, 169 Juando, Antoine, 193 uprisings; escape; vigilante justice judge counsel, 77 jails. See imprisonment; jailbreaks judge litigants, 26, 27, 28, 75, 83, 131 James (an Indian), 235 judge questions, 414 Jandron, 55 judge testimony, 4, 6, 25, 77, 79, 135, Jandron, Angelique, 55 146, 230, 238, 245, 302, 325, 331b, Jandron, François, 102 361, 376 Jannotte, François, 256, 455c judgment by default. See default Janson, Martin, 209 judgments Jarquish, Hiram, 259 juries: challenges, 68, 414; declined, Jarvis, Colonel, 468 551; failure to obey summons, 53a, Jeanvenne, Salomon, 417a, 417b 53b; hung, 417a, 433b, 484a; juror Jeanvienne, 76 questions, 414; written verdicts, 417b Jeanvienne, Baptiste, 156 juries, addresses and charges, 93b, 97, Jennotte, François, 191 235, 238, 244, 252, 296, 325, 414, Jerome, Martin, 78 453, 454, 477, 483 Jeroux, Lucien, 186 juries, grand, 4, 6, 8, 10, 93a, 203, 238– Jervais [name variant]. See also Gervais 40, 321, 414, 455c, 472, 478, 486, Jervais, 74 494(1). See also indictments Jervais, Frank, 369 Joachim, Henry, 196, 303, 358, 494(1) juries, juror testimony, 1, 8, 78, 100, 108, 238 Jobain, Ambroise, 494 juries, language, 46, 75, 93b, 211, 414, Jobain, Antoine, 548 471, 484b, 496. See also interpreters Johnson, Charles, 561 juries, petty, 60, 129, 472. See also mercy, Johnson, Francis G., 122–40, 141a, 141b, 141c, 142–54, 455a, 455b, 455c, jury recommendations jurisdiction: Assiniboia courts, 49a, 211; 455d, 456–501(2). See also recorders courts’ jurisdiction over Indians, 6; of Rupert’s Land Peace River, 49a; Rupert’s Land, 49a Johnson, Henry, 238, 240 justice, substantial, 131, 190, 211, 238. Johnson/Johnstone, James, 12, 234 See also bias; vigilante justice Johnson, Joseph, 252 juveniles. See children Johnstone, Archibald, 455c Johnstone, George, 97 Irvin/Irvine/Irwin, John, 67, 152, 154 Irvine, James, 198 Isaacson, Peter, 13 Isbister, Alexander, 471 Isbister, Edward, 498, 514 Isbister, James, 118, 128, 240, 309, 425 Isbister, John, 281, 309, 425 Isiac, Madelaine, 84

892

Index

Kakechepus, 128, 129 Kaksepas, 118 Kanecat, 125, 126 Kanistre, 110 Kauffman, Mrs, 77 Keeseeas, 211 Keetchipiwaipasse, 4 Kellond, George, 618 Kennedy, 550 Kennedy, James, 227 Kennedy, Jeremiah, 417a, 417b Kennedy, Mary, 4 Kennedy, Philip, 6, 68, 346 Kennedy, Samuel, 562 Kenny (an Indian), 84 Kenny, Edward, 59, 149 Kepling, Thomas, 494, 531, 606, 657 Kertan/Kerton/Kirton, Joseph, 1, 74, 90, 128 Kew, Frederick E., 327, 354a, 354b, 354c Kinsey, Mr, 555 Kipling, George, 350 Kitson, Norman, 261, 262, 270–2 Kittson, William, 517 Klyne, Adam, 136, 361, 615 Klyne, Baptiste, 361 Klyne, Francis, 5 Klyne, George, 559, 650 Klyne, John, 372, 490, 558, 630 Knight, James, 141b Knight, John, 493b, 496, 548, 561, 615, 619, 657 Knight, Peter, 198 Knight, William, 116a Knott, John, 176 Knott, Mary, 321 La ... See also Le ... Lacerte, Catharine, 524 Lacerte, Louis/Louis, Sr, 494(1), 646, 669 laches, 179

Lacord, James, 8, 33. See also Smith, James Laderoute, Baptiste, 417a, 417b Laderoute, Christophe, 349 Laderoute, Jean Louis, 243 Laderoute, Philibert, 243 Ladouceur, Augustin, 530, 579, 645 LaDoux, Louison, 166 LaDoux, Pierre/Pierre, Jr, 166, 167 LaFerté, Lucas, 52, 55, 56, 73, 96, 304 Laflèche, Louis-François Richer, Reverend, 113, 122 LaFond, Cyril, 252 LaFournais, Jean Baptiste, 672 Lafournasse, Gabriel, 524 Laframbroise, Baptiste, 44 LaFrambroise, François, 56 Laframbroise, Louis, 56 Lafrenière, Baptiste, 588 Lagamonier/Lagemonière/ Lagimonière/Lagomonier/ Largimonière/Larjomonière. See Lagomonière Lagomonière, Benjamin, 12, 37, 45, 50, 72, 85, 106, 124, 138, 230, 432, 433a, 433b Lagomonière, Elisiore/Eliziard/Elzear, 243, 417a, 417b, 421, 472 Lagomonière, Isaac, 124 Lagomonière, J. Baptiste, 4 Lagomonière, Joseph, 56, 124, 133, 417a, 417b, 483 Lagomonière, Mary Anne, 72 Lagomonière, Modeste, 243, 385, 564 Lagomonière, Romain/Roman, 72, 105, 115, 124, 133, 258, 484a, 518, 526 LaGrave, Soeur, 78 Lake of the Woods road, 454, 455c LaLiberté, Antoine, 124 Lallemand, Baptiste, 464b Lallmond, François, 222 LaMalice, Madame, 157 Lambert, John, 250, 484b, 490

Index Lambert, Joseph, 220, 318, 319, 464b, 531, 606 Lambert, Mrs, 321 Lambert, Thomas, 464b, 468, 471 Land, Charles, 464b, 471 land, ownership, 148, 208, 376, 517, 530. See also prescription land, trespass, 25, 27, 36, 45, 52, 62, 130, 141a, 141b, 141c, 157, 168, 184, 187a, 187b, 289, 328a, 328b, 328c, 361, 376, 442. See also ejectment land claim, Halfbreed, 25 land register, 25, 184 Landré, Baptiste, 230 Landré/Landrie/Landrier, Joseph, 78, 96, 270, 308c, 310a, 310b, 494(1) Landré, Louis, 78, 310a, 310b Landré, Narbère, 50, 72 Lane, Richard, 113 Lane, William D., 77, 204, 256, 447. See also Hudson’s Bay Company Lang, James, 468 Langan, Jean-Baptiste, 256 Langevin, Joseph, 158, 186, 196, 201, 221 language, Indian. See Indians, language language, juries. See juries, language language, translation. See interpreters Lanies, Pierre, 122 Lapierre, Delaquette, 5 LaPierre, Deliette, 102 Lapierre, Joseph, 342a, 342b Lapine [name variant]. See also Lépine LaPine, Wapoose, 177 Lapointe, Daniel, 425 Lapointe, Jean Baptiste, 404, 430, 517 Larance [name variant]. See also Larence Larance, Baptiste, 12 Larance/Larence, Charles, 1, 6, 10, 19, 37, 51, 84, 93a, 105, 110, 135, 138 Larance/Larence/Laurence/Lawrence, Norbert, 366, 455c, 478 Larand, L., 122

893

larceny. See theft Larence [name variant]. See also Larance LaRence, Bazil, 96 Larence/Laurence, Joseph, 154, 368 LaRivée, Daniel, 379 LaRivier, François, 230 Larmand, Baptiste, 115, 121, 133, 484b Laronde, 68 Laronde, Charles, 633 LaRonde, Étienne, 291, 292 Laronde, Louis, 79, 472 LaRonde, Madame, 62, 157 LaRonde, Magdalene, 211 Laronde/Laronte, Paul/Antoine Paul, 111, 378, 448, 483, 484a, 484b, 485 Laroque, Antoine, 628 Laroque/LaRoque, Baptiste, 6, 266b Laroque, Charles, 416 Laroque, François, 379. See also Roque Laroque/Laroch, Joseph/Josette, 5, 91, 122, 366 Laroque/LaRoche, Madame, 5, 78 Laroque, Mr, 331b LaRoque, Pierre, 108 Larose, Frank, alias Boisvert, 428 Larsen, Ryder, 300a, 300b, 443, 455a, 455b, 455c, 455d, 468, 469, 470, 556, 638. See also Olson, Ryer lash, flogging with, 85 Laughlin, Thomas, 35 Laurence. See Larance; Larence Lavallée, Charles, 574 Lavallée, Martin, 19, 62, 68, 72, 96, 100, 102, 108, 115, 121, 124, 138, 143 Lavallée/Laveille, Pierre, 78, 312, 478, 494(1) Laverdure, Pierre, 266b, 518 law: Canada, 483; military law, 35, 203; publication of laws, 9; Scots law, 112. See also Assiniboia, laws; England, laws law enforcement, 238; crime frequency, 211. See also constables; police; sheriffs Lawrence. See Larance; Larence

894

Index

lawyers, professional, 1, 238, 414, 501. See also counsel Le ... See also La ... leases, 434, 665 Leask, Samuel, Mrs, 238 LeClair, Madame, 52 Leclaire, Joseph, 493b, 496, 548, 561 Lecrée, James, 233 LeDeux, Pierre, 147 LeDoux, W., 185 Legeault, Madame, 77 LeMay, Madame, 240 Lennon, Edward, 501 Leon, Pascal, 530, 579 LePierre, Baptiste, 78 Lepine [name variant]. See also Lapine Lépine, Ambroise, 243, 349 Lépine/Lapine, Baptiste/Jean Baptiste, 115, 122, 124, 133, 143 Lépine, Maxime, 403, 415a Lepinée, Joseph, 256 Lespèrance [name variant]. See also L’Espèrance L’Espèrance [name variant]. See also Lespèrance L’Espèrance/Lespèrance, Alexé, 72, 93a, 106, 135 L’Espèrance, André, 143 L’Espèrance, Baptiste, 74 Lesperance, Jean, 494(1) Lesperance, Joseph, 647 L’Etendre. See LeTendre LeTendre, Andrew, 262 LeTendre, Louis, 261 LeTendre, Oiseau, 485 Letraille, Felix, 156 LeViolet, José, 80 Leviolette, Baptiste, 569 levying war, 483, 484a, 484b, 485 Lewes, Andrew, 174 Lewes, James, 175 Lewes, Joseph, 123 Lewes, William, 175

liability: for animals, 124; employers’ liability, 266b; parental liability, 383 licensing, 363, 395 licensing, liquor, 172, 197, 455c Lillias, Patrick, 59, 134, 152, 154 Lillie, James, 317 Lilly, William, 97 Limherst, Henry, 35 limitation of actions, 179 Linklater, Ellen, 321 Linklater, Magnus, 66, 68, 136, 166, 331b Linklater, Mrs, 77, 203 liquor, 158, 167, 174–6, 192, 246. See also ardent spirits, sale of; distilleries; drunkenness; Indians, providing liquor to; malt; restitution of liquor price; saloons; Temperance Society liquor, licensing, 172, 197, 455c L’Ireland. See Riel, Louis, Sr, dit L’Ireland L’Ireland, Francis, 240 Little Beaver, 509 Livingstone, Neil, 118 Logan, Alexander, 273, 626 Logan, John, 263 Logan, Nathaniel, 77 Logan, Robert, 79 Logan, Thomas/Thomas, Jr, 10, 14, 32, 45, 77, 98, 109, 136, 141b, 146, 203, 263, 338, 626 Logan, William, 388, 478, 490, 626, 653 logging, 254 Longbones, John, 471 loss of domestic services, 55, 73. See also seduction lost animals. See animals, lost Lousden, 546 Loutit, Laurier, 97 Loutit, Lowe, 422b Loutit, Mrs, 422b Lowman, Emily, 28

Index Lowman, Maurice, 414, 417a, 417b, 435, 597, 601 Lucier, Amable, 183, 596 Lucier, Basil, 570, 590 Lucier, Tuscand, 606 Lusted, Thomas, 372, 545 Lynch, James, 542 Lyons, George, 69, 179 Lyons, Higgins and Co., 359 Lyons, John/John, Jr, 73, 93a Lyons, William H., 195, 229, 444 Lyther [?], Henry, 203 Mac ... See Mc ... Maclin, Thomas, 123 Mager, Felix, 196 Mager, Jean/Jean Mark, 196, 221, 304, 306a, 306b, 367, 386 Maguire, Philip, 425 mail theft, 480, 481, 482 Mair, Charles, 478 Malaterre, Alexé/Alexis, 121, 484b Malaterre, Bazil, 371 malt, 30, 84 Mandville, François, 115 Manitoba, 455a, 685. See also courts of Manitoba Manitoba Brewery Company, 551, 552, 667 Manitoban (newspaper), 455a, 455c, 462, 467, 468, 471, 483, 501 Mansan, Anneser, 208 Manseau, Onesime, 517 manslaughter, 10, 193, 211, 414 Marcellais, Baptiste, 5 Marcellais, John, 633, 659 Marcellais, Louison, 170 Marcellais, Madame, 157 Marcellais, Pierre, 37 Marcellais, Widow, 78 Marchand, Cyril, 230, 476, 518, 530, 579

895

Marchand, Goodman/Goodwin, 230, 325, 441 Marchand, Isiah, 247 Marion, Amable, 325, 369, 432, 433a, 433b, 437a Marion, Edouard, 100, 247 Marion, François, 78 Marion, Joseph, 392, 433a, 464b, 468, 483, 525 Marion, Maxime, 246 Marion, Narcise, 5, 9, 50, 52, 60, 68, 76, 79, 85, 93b, 96, 107, 113, 121, 133, 140, 161, 238–40, 291, 292, 383, 392, 520 Marion, Roger, 684 marriage, breach of promise, 55, 290 married women, capacity to sue, 76, 77, 102, 135 Marshall, David, 457a, 457b, 457c Martin, John, 573, 666 Martin, L.B., and Co., 231 Martin, Mrs, 82 Martin, Pierre, 254 Mary (an Indian), 137 Massey, Mrs, 152 Massey, Robert, 152, 355 Masters, Alfred, 472, 494, 526, 561, 579, 615, 657 Masters, Louis Plante, 526 Matheson, Alexander, 365 Matheson, Angus/Angus, Sr, 1, 2, 4, 5, 13, 51, 73, 82, 86, 93b, 94, 127, 129, 146, 484a Matheson, Donald, 82, 273, 416 Matheson, Hugh/Hugh, Jr, 32, 52, 75, 82, 85, 105, 108, 116a, 116b, 125, 126, 127, 129, 134, 146 Matheson, Hugh, Mrs, 116a, 116b Matheson, James, 85 Matheson, John/John, Jr/John R., 35, 46, 51, 52, 101, 116b, 119, 125, 126, 141b, 494(1), 611

896

Index

Matheson, Norman, 466, 467, 471, 484a Mayenyest, Henry, 575 Maylay, Mrs, 80 Maylay, Patrick, 80 Mayo, Benjamin, 685 McArthur, Alexander, 573, 625, 658, 666 McBain, James, 580 McBain, Kenneth, 544, 585 McBain, Robert, 468 McBeath, Adam, 302, 494(1) McBeath, Alexander/Alexander, Jr, 58, 108, 134, 151, 152, 154, 416, 619 McBeath, Angus, 188, 302 McBeath, Constable, 484a McBeath, John, 1, 4, 45, 62, 484b McBeath, Morrison, 13, 34, 40, 51, 52, 58, 69, 82, 93b, 94, 100, 102, 105, 108, 116a, 125, 126, 146, 185, 188, 226, 238–40, 340, 425, 531, 606, 614 McBeath, Mrs, 226 McBeath, Robert/Robert, Jr, 4, 19, 50, 73, 79, 84, 86, 93b, 100, 102, 103, 110–15, 116b–22, 135–41a, 141b, 141c, 142–87a, 187b, 188– 215(1), 215(2)–66a, 266b–77, 280d, 302, 308b, 308c, 310b, 311– 23a, 323b, 323c, 324–8a, 328b, 328c, 329–31a, 331b, 332–6a, 336b, 337–42a, 342b, 343, 344a, 344b, 345–54a, 355–64, 414, 452b, 453, 454, 619 McBeath, Roderick, 25, 28, 34, 37, 81, 85, 105, 109, 116b, 127 McBeath, William, 181, 466, 468 McBride, John, 160 McCaigne, Corporal, 203 McCallum, Mr, 68 McChorister, Andrew, 97 McChorister, James, 238 McChorister, James, Mrs, 238 McChorister, Thomas, 265, 467

McClerky, Peter, 246 McConville, H.J.G., 524 McCormac, James, 76 McCormac, Mary, 76 McDermot, Andrew/Andrew, Jr, 7, 18, 25, 69–74, 77, 79–83, 113, 147, 151, 170, 171, 207, 211, 212, 227, 238, 244, 256, 301, 302, 329, 330, 361, 426, 434, 460a, 468, 506, 507, 515, 530, 531, 544, 585, 586, 615, 639, 657, 663, 665, 670, 683 McDermot, Henry, 256, 460b McDermot, James, 18 McDermot, Joseph/Joseph A.R., 583, 661 McDermot, Mary, 7 McDonald, Adam, 250, 333, 458, 533, 561 McDonald, Alexander, 278, 561 McDonald, Angus, 203 McDonald, Ann, 278 McDonald, Charles, 561 McDonald, Cuthbert, 561 McDonald, Donald/Little Donald, 4, 9, 54, 58, 59, 61, 69, 88, 90, 97, 123, 130, 131, 152, 417b, 561 McDonald, Duncan, 278, 561 McDonald, Elizabeth, 278 McDonald, John, Jr, 54 McDonald, Kenneth/Kenney, 54, 60, 90, 97, 123 McDonald, Mrs, 125, 126 McDonald, Neil/Neil, Mr and Mrs, 21, 22, 98, 107, 109, 119, 134 McDonald, Thomas, 125, 128 McDonald, William, 2, 82, 105, 108, 181, 263 McDougal, Colin, 417a, 417b, 484a, 485 McDougal, Donald, 86 McDougal, Duncan/Duncan, Constable, 8, 84, 105, 121, 138, 151, 159, 187b, 215(2), 296, 325, 331b, 365 McDougal, Mrs, 157, 296

Index McDougal, William, 540 McGillis, 68 McGillis, Donald, 121 McGillis, William, 253 McGuire, James, 163 McGuire, Philip, 81, 466, 471 McIntosh, Christopher, 258 McIvor, Murdoch, 455c McKay, Angus, 181, 188, 206, 249, 264, 415a McKay, George, 181, 188, 189, 250, 436, 455c, 521 McKay, Ignace, 74 McKay, James/James, Sr, 4, 9, 13, 34, 51, 76, 79, 84, 85, 100, 102, 116a, 118, 127, 181, 204, 211, 238–40, 277, 361, 369, 370a, 378, 414, 415a, 417a, 417b, 431a, 442, 619 McKay, John, 166, 167, 188, 352, 494, 496, 568, 612 McKay, Neil, 152 McKay, Selkirk, 45, 82, 103, 118, 127, 129, 144, 146 McKay, Thomas, 203 McKeaver, John, 200 McKeiver, Alan, 152 McKenney, Henry, 182, 195, 197, 209, 210, 229, 232, 233, 235– 40, 244, 248–52, 255, 259, 267–9, 278–80a, 280b, 280c, 280d, 308a, 308b, 308c, 311, 320–3a, 323b, 323c, 324–8a, 328b, 328c, 329–31a, 335, 336a, 336b, 337, 354a, 356, 376, 426, 434, 436, 460a, 460b, 522, 652, 685 McKenney, John, 513, 547, 608, 654 McKenzie, Alexander, 472, 619 McKenzie, Angus, 246, 331b McKenzie, Benjamin, 238, 319 McKenzie, David, 238 McKenzie, Donald, 77, 93a McKenzie, Duncan, 319 McKenzie, James, 69, 146

897

McKenzie, John, 539 McLane and Smith, 510 McLaw, James W., 618 McLean, 397 McLean, Alexander, 414 McLean, Alfred, 530 McLean, Donald, 211 McLean, John, 414 McLean, Miss, 414 McLean, Mrs, 414 McLean, W.J., 238 McLenaghan, James, 496 McLeod, Abraham, 211 McLeod, Antoine, 190, 349, 475 McLeod, Donald, 610, 612, 656 McLeod, Elizabeth, 472 McLeod, John, 486 McLeod, Joseph, 256 McLeod, Madame, 243 McLeod, Mary, 472 McLeod, Murdoch, 459 McMillan, Allan, 78 McMillan, Joseph, 344b, 425 McMillan, William/William, Sr, 51, 73, 344b McNab, Charles, 190, 240 McNab, John, 493b, 496, 548, 561, 614, 615 McNab, Thomas, 580 McRae, Duncan, 1, 54, 57, 58, 59, 61 McTavish, John H., 199, 203, 376, 504, 505, 518 McTavish, William, 131, 155–87a, 187b, 188–215(1), 215(2)–25, 316, 354a, 404, 454 Meade, Roland P., 394, 600 mediation, 260. See also arbitration; settlement of civil actions Meeham, Michael, 565, 681 mental disabilities, 13, 123, 473 Mercer, Frederick C., 383, 387a, 387b, 387c, 392, 440, 555, 665 Mercredi, François, 287

898

Index

mercy, jury recommendations, 123, 129, 172, 238. See also commutation of sentence mercy, royal prerogative of. See commutation of sentence Métis, 455a. See also Halfbreeds Metzger, F.I., 508 Meuron, Jeremé, 115 Milaney, John, 86 Milia, J., 133 military. See Chelsea Pensioners; Royal Canadian Rifles; Sixth Regiment, Royal Warwickshires; Wolseley, Garnet, Colonel military law, 35, 203 Miller, George, 484b, 541, 573, 660 Miller, Robert, 110, 123 Millhone, Charles, 580 Millian, J., 91 mills, steam, 160 mills, water, 361 mischief, public, 365 Mitchel, David, 141b Moar, G., 182 Moar, John, 116b Moggeridge, Francis F., 454 Moises, John, 149 Monchamp, Benjamin, 654 Monchamp, Onesime, 532 money. See currency; negotiable instruments Mongenier, John, 518 Monk, William, 70 Monkman, Charles, 211 Monkman, James, Sr/James, 1, 4, 13, 25, 28, 54, 62, 68, 81, 83 Monkman, John, 78 Monkman, Joseph, 6, 55, 57, 60, 258, 472 Monkman, Thomas, 258, 483, 485 monopoly, Hudson’s Bay Company trade, 68 Mooney/Mooneya, John, 346, 454

Moore, Abraham, 69 Moran/Morand. See Morin Morgan, Robert, 190, 256, 318, 319 Morin, [illegible], 52 Morin/Moran, Alexandre, 427, 438, 476, 518, 530, 579 Morin/Morand, Antoine, 6, 12, 68, 104 Morin, Baptiste, 56, 83, 106, 208, 298, 432, 627 Morin, Charles, 202 Morin, Étienne, 78 Morin, François, 121 Morin/Morand, Louis/Louison/Louis, Sr, 25, 95, 108, 122, 138, 143, 341, 478, 494(1) Morin/Morand, Narcise, 95, 292, 296 Morin, Norbert, 484b Morin, Octave, 517 Morin, Petit, 55, 57 Morin, Pierre, St, 339 Morin, Xavier, 439, 466 Morning, Peter, 195 Morrisette, Baptiste, 256 Morrisette, François, 121, 266a, 266b Morrison, 185 Morrison, Angus, 372, 484a Morrison, John, 490 Morrison, Thomas, 530 mortgages, 157 Morwick, George, 218 Morwick, Peter, 458, 533 Mosse, Lieutenant, 35 Mowat, Andrew, 32, 235, 238, 478 Mowat, Edward, 4, 62, 155 Mowat, Jane, 28 Mowat, John, 9 Mowat, Thomas, 561 Moyes/Moyses, John, 219, 289 Moysey, James, 143 Muir, John/John, Jr, 97, 265 Muir, Miss, 265 Mulligan, George, 222

Index Mulligan, James/James, Constable/ James, Jr, 134, 142, 148, 152, 154, 157, 172, 178, 184, 187a, 187b, 194, 289, 296, 354a, 356, 425, 444, 464b, 471 Mulligan, Mrs, 296 Mulligan, Robert, 252, 632 Municipal District of Assiniboia, 211 Munro/Munroe, Alexander, 85 Munro/Munroe, George, 35, 74 Munro/Munroe, Mrs, 77 Munro/Munroe, Robert, 19, 20, 105, 118, 127, 238, 472 Muran, Jérèmé, 106 murder, 4, 6, 8, 49a, 93a, 93b, 179, 211, 325, 453, 455a, 455b, 455c, 455d murder, attempted, 81 murder, conspiracy to, 501 Murphy, Catherine, 80 Murphy, Michael/Michael, Corporal, 80, 149 Murray, Alexander, 317, 361, 532, 662 Murray, Donald, 1, 4, 5, 62, 74, 77, 79, 88, 92, 93b, 104, 105, 113, 116a, 132, 133, 141a, 141b, 141c, 238–40, 277 Murray, James, 619 Murray, John, 77 Mutchékeesic, 115 Nartenyest, Henry, 673 Nash, J.B., 217 Natawas, 127 Nault, Alexandre, 450 Nault, Amable, 110, 158 Nault, André, 158 Nault, Boniface, 430 Nault, Marion, 5 Nault, Romain, 430 Neau, Charles, 496, 619 Neaud/Neault, Baptiste, 204, 478 Neault, Benjamin, 379, 476 Neecheecoos, 212

899

Neeookeeshiweshiom, 33 Neeseepeet, Joseph, 211 Neganecapo/Neganeecahpoo, 85, 192 negligence, 131, 145, 190, 191, 250, 256, 293, 303, 417a, 417b negligence, contributory, 190 negligence, culpable, 116a, 116b negotiable instruments, 215(2). See also bills of exchange; cheques; currency; promissory notes Neilson, Angus, 497 Neron, Guilleaum, 138, 151 Neros, Jean, 122 Neros, Jerome, 238–40 Neswasanib, 133 Newcome, George, 417b Newkesequeekik, 8 New Nation (newspaper), 455a newspapers. See Manitoban; New Nation; Nor’-Wester; printing presses Nimmons, William, 683 Nolin, Augustin, 4, 6, 8, 19, 25, 28, 472 Nolin, Charles, 243, 365, 517 Nolin, Constable, 429 Nolin, Donald, 349 Nolin, Duncan, 267, 268, 276, 314, 400, 537, 583 Nolin, François, 349 Nolin, Joseph, 375, 387a, 387b, 387c Nolin, Norbert, 374, 577 Nolin, Sergeant Major, 80 nolle prosequi. See stay of proceedings non compos mentis. See mental disabilities nonsuits, 117, 293, 501, 579 Norey, Jacob, 673 Norin, Joseph, 320 Norne, Catherine, Mrs, 16 Norquay, Henry, 58, 103 Norquay, John, 580, 606 Norquay, Joseph, 258 Norquay, Thomas, 476, 526

900

Index

Nor’-Wester (newspaper), 179, 203, 211, 212, 229, 235, 238, 248, 251, 301, 325, 368, 404, 414, 454, 462 notaries. See scriveners not proven/not guilty, 112 nuisance, public, 5, 244 nuns, 78, 122

oxen, 156, 274, 349, 379, 385, 415a, 425, 441, 448. See also animals; Red River carts

Pagé, Alexandre, 243, 258 Pagé, Xavier, 243 Pahpawangai, 251 Paine, Stephen, 41 Pangman, Pierre, 6 Oakes, Catherine, Mrs, 98 Papin [name variant]. See also Pepin Oakes, Thomas, 89, 126 Papin, Narcisse, 49a Oak Point, 211 Paré, L., Dr, 485 oaths, 59, 78, 83, 215(2), 238, 424; parental liability, 383 children, 67; Holy Evangelists, 6, 35; Parenteau, Bazil, 349 Indians, 6, 65, 85, 98, 118, 127, 128, Parenteau, Jean, 50 192, 224, 251 Parenteau, Magdelaine, 79 Obichon, Marie, 55 Parenteau, Pierre, 50, 91, 122, 124, O’Brian, Daniel, 178, 203 135, 144, 464b, 530, 579, 619 O’Brian, David, 187 O’Donnell, John H., 520, 525, 527, 680 Pariseau, Henry, 229 Pariseau, Honoré, 441, 659 O’Donnell, Michael, 459 Parisien, Abraham/Abram, 555, 591 O’Donoghue, William B., 455a, 483 Parisien, Catherine, 38 offsets and counterclaims, 221 Parisienne, Hyacinth, 91 Ogebbeway/Ogibbeway, 351, 390 Parisienne, Javotte, 106 Ogemapeenase, 115 Parisienne, Joseph, 165, 180 old people. See elderly persons Parisienne, Pascal, 200, 368 O’Lone, Hugh F., 451 Park, Mary, 193 Olson, Ryer (Ryder Larsen?), 300a, Park/Parks, John, 4, 311 300b Parks, Joshua, 67, 70, 129, 213 Omand, John, 69, 146, 238, 547, 608 Parron, Eusaint, 106 Omand, Thomas, 218 partnerships, 280a, 306a, 306b, 347, onus of proof, 472. See also evidence; 357, 359, 393, 510, 511, 528, 535, presumption of innocence 542, 548, 551, 552, 559, 581, 650, 667 Ormond, John, 625 Paterson, R., 332 Oseau, Baptiste, 615 Patneaud, Charles, 167 Ouelette, François, 368 Patterson, Albert, 273 Ouelette, Joseph, 401 Paul, Alexander, 246, 247, 307, 324, Ouelette, Moise, 676 341, 353 Owens, James, 649 Paul, Oliver, 276 ownership of animals. See animals, Paul, Paul, 202, 485 ownership Paxton, James, Dr, 193 ownership of land. See land, ownership peace bonds, 89. See also recognizances ownership of personal property. See Peace River, jurisdiction over, 49a chattles, ownership

Index Pecheto, Kecezaway, 320 Peebles, Andrew, 561 Peebles, James, 561 Peebles, Thomas, 483 Peetaqueeuchewan, 98 Pellan, Angelique/Jenneveve, 73 Pelly, Augustus Edward, 77, 83 Pelly, Augustus Edward, Mrs, 77 Peltier, Alexé, 299 Pembina, 455c, 483, 484a, 484b, 485. See also United States border Penayseek, 85 Pensioners, Chelsea. See Chelsea Pensioners Pepin [name variant]. See also Papin Pepin, Margaret, 6 Pepin, Pierre, 174, 379 perjury, 88, 90, 354a, 354c Perrault/Perreault, Baptiste/Jean Baptiste, 12, 85, 100, 110, 124, 230, 240 Perrault, Edward, 12 Perrault/Perreault, Norbère/Norbert, 12, 55 Perreault, Pierre, 204, 305 personal property. See chattles, ownership Petâpit, 8 Peterson, Albert, 477 Petitigue, Alexander, 196 petitions, 68, 238, 404. See also demonstrations, riots and uprisings petty courts of Assiniboia, 88–90, 103, 179, 301, 372, 395, 452a, 452b, 455a. See also appeals petty juries. See juries, petty Pheasant, Susan, 114 photography, 455a Picksley/Pixley, Thomas/Thomas, Private, 62, 80, 127 Pillon, Pierre, 368 Plains, Warden of the, 6. See also Grant, Cuthbert

901

Plainval. See DePlainval Plante, Boniface L., 204 Plante, Lagloire, 138, 478 Plante, Louis/Louison, 368, 483, 518 Plante, Xavier, 108 plea bargains, 68. See also settlement of civil actions Ploofe, Antoine, 65, 66 Ploofe, Bonhomme. See Ploofe, Louis/ Louison Ploofe, Louis/Louison, 5, 8, 67, 102, 292, 365 Poitras, Constable, 177 Poitras, François, 220 Poitras, Pierre, 25, 113, 121, 256, 494(1) police, 455c. See constables; law enforcement; sheriffs Polson, Alexander, 494(1) Polson, Angus, 52, 84, 86 Polson, Donald, 127, 129, 136 Polson, Hugh, 25, 28, 35, 69, 76, 82, 88, 98, 116b, 119, 134, 141b Polson, John, 82, 98, 101, 125, 126 Polson, William, 141b Portage and Main, 244 Portage la Prairie, 414 Porter, Alexander, 144, 208, 304 possession of stolen goods, 203. See also receiving stolen property postal theft, 480, 481, 482 postmortem examinations. See autopsies; inquests Powers, Michael, 478 preliminary hearings, 203, 238, 414, 454, 468 prescription, 244. See also land, ownership presumption of innocence, 203, 296 pretences, false, 83, 311 Preux, Paul, 484a, 485 Primeau, Baptiste, 200 Primeau, Joseph, 271

902

Index

Prince, Henry, 235 Prince, Thomas, 176 Prince, William, 176 printing presses, 9. See also Manitoban; New Nation; Nor’-Wester prisons. See imprisonment Pritchard, Archibald, 272 Pritchard, Hugh, 486 Pritchard, John, 73, 84, 86, 108, 116a, 146, 322, 326 Pritchard, Richard, 258, 417a, 417b private prosecution, 164. See also civilcriminal confusion probate. See wills and estates promissory notes, 7, 179, 215(2), 217, 261, 262, 306b, 354b, 369, 434, 437a, 440, 443, 519, 525, 536, 604, 664. See also negotiable instruments property. See animals; chattles, ownership; land, ownership; receiving stolen property prosecution, private, 164. See also civilcriminal confusion prosecution, stay of. See stay of proceedings prosecutors, 238, 252, 311, 363, 414, 425. See also attorney general protests. See demonstrations, riots and uprisings; petitions provisional government, 455a Pruden, Edward, 235, 494, 531, 606, 657 Pruden, John, 238 Pruden, J. Peter/Peter, 56, 58, 60, 69–76, 93a, 418, 455a, 529 Pruden, Louis, 217, 235 Pruden, William, 249, 425, 455a, 484b, 490, 561 publication of laws, 9 Public Interest, 4–6, 8–11, 13–24, 30, 31, 35, 37, 38, 40–3, 53a, 53b, 64, 65, 81, 84–8, 90, 93a, 93b, 94, 95, 97–9, 107, 110, 112, 114, 115, 116b,

118–20, 125–9, 132, 133, 136, 137, 143, 154, 172, 192, 193, 197, 206, 213, 224, 225, 235, 244. See also Crown, the; Public Welfare; Queen, the; Regina public mischief, 365 public nuisance, 5, 244 Public Welfare, 60, 61. See also Crown, the; Public Interest; Queen, the; Regina punishment. See capital punishment; commutation of sentence; fines; flogging; imprisonment; recognizances Putnam, John T., 347, 393. See also Putnam and Holmes Putnam and Holmes, 306a, 306b. See also Holmes, James B. quarterly courts. See General Quarterly Court of Assiniboia/Manitoba; petty courts of Assiniboia Queen, the, 166, 167, 169, 173– 6, 187, 194, 203, 211, 212, 238, 239, 240, 241, 242, 248, 249, 265, 296, 311, 321, 325, 334, 340, 351, 365, 389, 390, 391, 414, 424, 425, 453, 454, 463, 464b, 466, 467, 469, 470, 471, 472, 473, 474, 475, 476, 477, 478, 479, 480–4a, 484b, 485, 486–92. See also Crown, the; Public Interest; Public Welfare; Regina Queen’s Bench. See courts of Manitoba Queen’s evidence, 88 Racette, Augustin, 243 Racette, George, 96, 236, 331a, 331b, 357, 364–6, 369, 391, 440 Racine, Baptiste, 144 racism, 205. See also Indians Rainie, C.L., 124 Ramsey, Robert, 126, 143, 149, 289 Ranville, Edward, 240

Index rape, 13, 35, 123, 242, 472, 490, 494. See also assault, indecent Rayome, 6 real property. See land, ownership reasonable doubt. See presumption of innocence receiving stolen property, 468, 477, 496. See also stolen goods, possession recognizances, 10, 17, 27, 49a, 49b, 88, 89, 455a, 457a, 457b, 457c. See also estreatment; peace bonds recorders of Rupert’s Land, 1, 122, 155. See also Black, John; Bunn, John, Dr; Johnson, Francis G.; Thom, Adam records, court, 75, 77, 503 Red River carts, 140, 156, 195, 247, 318, 349, 417a. See also oxen referee, 676 Regina, 57, 58, 60, 79, 501. See also Crown, the; Public Interest; Public Welfare; Queen, the register of land, 25, 184 Rémon, Joseph, 668 replevin, 510, 511, 626, 683. See also chattles, ownership restitution of liquor price, 83, 98, 118, 119. See also informers retrials, 266b, 306b, 354a, 354c, 484a. See also appeals Rice, Corporal, 70 Richard, François, 12 Richard, James, 12 Richard, Joseph, 73 Richards, Perrault, 211 Richelieu, Modeste, 649 Richot, André, 349, 464b, 483 Richot/Richotte, Janvier/Janvise, 106, 338 Richot, Pierre, 349 Richotte, Antoine, 6 Richotte, Baptiste, 56 Richotte, José, 78 Rickards, James, 149, 169, 222

903

Rickards, Sergeant, 77, 80 Riel, François, 243 Riel, Louis, Jr, 238, 243, 454, 455a, 501 Riel, Louis, Sr, dit L’Ireland, 68, 77, 100, 102, 115, 151, 243 Riel, Madame and Mademoiselle, 501 riots. See demonstrations, riots and uprisings roads, 244, 454, 455c road traffic, 250 robbery, 81, 454. See also theft Robertson, Fanny, 101 Robertson, George, 97, 101 Robertson, Infants, 29a, 29b, 29c Robertson, William, 97, 101 Robideau, Augustin, 292 Robillard, 36 Robillard, André, 379 Robillard, Baptiste, 62, 86, 254 Robillard, Jean, 115, 117 Robillard, Joseph/José, 84, 107, 134, 144, 254 Robinson, John F., 557, 558, 559 Robinson, Robert, 203 Rochleau, Louis, 368 Rodway, Joseph, 152, 154, 296 Rodway, Mrs, 296 Rolette, Joseph, 133, 221, 414 Rolph, George, 457a, 457b, 457c Roper, James, 60 Roque, François, 154. See also Laroque Ross, Alexander, 1–49a, 50–8, 68, 69–77, 79, 81–3, 394, 416, 425 Ross, Bernard R., 483, 484a, 484b, 485 Ross, Daniel, 593 Ross, Donald, 472 Ross, George, 54, 56, 58, 59, 61, 123, 483, 485, 561 Ross, Hugh, 185 Ross, James, 154, 179, 203, 211, 238, 252, 503, 508, 561 Ross, John, 490, 561

904

Index

Ross, Nancy, 238 Ross, Roderick, 185, 419a, 419b Ross, William, 90, 91–115, 116b–35, 464b, 468, 471 Roussin, François, 284 Rowand, John, 144, 236–40, 370a Rowand, Mary Maria, 512 Rowand, William, 181, 512 Rowland, Robert, 35, 54, 57, 58, 59, 61 Rowland, William, 90 Royal, Joseph, 483, 484b, 485 Royal Canadian Rifles, 193, 203 Royal Warwickshires. See Sixth Regiment, Royal Warwickshires rum. See ardent spirits, sale of; liquor Rumsey, John, 324 Rupert’s Land, extent and jurisdiction, 49a Rupert’s Land, governor. See governor of Rupert’s Land Rupert’s Land, recorders. See recorders of Rupert’s Land Ryan, John, 649 Sabbath, 172 Sabine, Henry L., 354b Sabiston, Alexander, 155 Sabiston, Clarissa, 35 Sabourrin (an Indian), 192 saloons, 455c salt, production of, 211 Salter, Henrietta, 242 Salter, Mary Ann, 242 Salter, Richard, 108, 119, 417b Sanderman, John G., 523, 661 Sanders. See Saunders Sanderson, George, 90 Sandison/Sanderson, Robert/Robert, Jr, 6, 62, 68, 77, 88, 93b, 94, 98, 102, 116b, 119, 125, 126 Sandison, Thomas, 167 Sangster, Mrs, 59 Sangster, Private, 80

Sargent, Albert, 159, 215(2), 230, 293– 5, 306a, 306b, 325 Saunders, Flora, 453 Saunders, Nancy, 493b Saunders/Sanders, Palm/Pam, 109, 198 Saunders, William, 46 Saunderson, Richard, 493b Savage, François, 379 Savoyard, 106 Savoyard, Baptiste, 159 Savoyard, Eustan, 340 Savoyard, Jacques, 91 Savoyard, John, 334 Savoyard, Joseph/José, 50, 94, 96, 110, 115, 117, 133, 478 sawmills, 460a Sayer/Cire/Cyre, François, 87, 304 Sayer/Cire/Cyre, John, 5, 6, 157, 305, 359 Sayer/Cire/Cyre, Joseph, 133, 238 Sayer/Cire/Cyre, Louis/Louison, 68, 72, 83, 117, 589 Sayer/Cire/Cyre, Mrs and Mr, 23, 24 Sayer/Cire/Cyre, Patrice, 348 Sayer/Cire/Cyre, Pierre Guilleaum/ William, 68, 185 scalping, 471. See also assault Schubert, Auguste, 212, 213, 215(2), 219 Schultz, Agnes, Mrs, 354a Schultz, John, Dr, 211, 238, 251, 280a, 280b, 280c, 280d, 282, 301, 313–16, 345, 354a, 354b, 354c, 377, 452b, 455c, 455d, 461, 462, 511, 516, 526, 549, 550, 559, 562, 563, 565, 600, 601, 611, 621, 634, 681 Scots law, 112 Scott, Thomas, 454 Scott, William, 69, 425 scriveners, 157, 357 search warrants, 425, 468 sea voyages, 28 seduction, 27, 55, 73, 290

Index Selkirk Treaty, 25 Seller, George, 93a sentencing. See capital punishment; commutation of sentence; fines; flogging; imprisonment; recognizances servants, domestic, 28, 116a, 238. See also loss of domestic services service of documents, 104, 141a, 246, 264. See also constables; default judgments; sheriffs; summonses Settee [name variant]. See also Suttee Settee, James, 333, 678 Settee, W., 561 Setter, Andrew, 96 Setter, George, Jr, 130, 131, 152, 154, 238 Setter, George Donald, 4, 57, 101, 151, 250 Setter, James, 56, 60, 94, 123 Setter, John/John J., 217, 278, 319, 483, 494, 530, 579, 619, 657 Setter, William, 472, 518 settlement of civil actions, 209, 216, 278, 306b, 504, 506–11, 521, 522, 528, 533–5, 537, 540, 545–7, 549, 560, 563, 566, 567, 571–3, 575, 576, 582–7, 590–6, 598, 600, 602, 603, 609, 610, 612, 618, 621, 624, 628–30, 645 sexual assault. See indecent assault; rape Sharp, Edward, 210 Sharp, Mrs, 77, 238 Sharp, William, 129, 134, 238, 344b Shay, D., 607 Sheal, 285 Shepherd, Mrs, 98, 99 Shepherd, Robert, 82, 89 sheriffs, 354a, 433b, 460a. See also McKenney, Henry; Ross, Alexander; Ross, James; Ross, William Shokin, 125, 126 shoplifting, 79. See also theft Short, James, 74

905

short-measure sales, 149, 158 Sieyese, Françoise, 79 Simeson, William, 220 Simpson, Alexander, 192 Simpson, George, Sir, 7, 68, 77 Sims, Abraham, 163 Sims, Edmondson, 674–5 Sinclair, Bakie, 265 Sinclair, Dugald, 540, 635 Sinclair, James/James M., 7, 68, 240, 476 Sinclair, Joseph, 619 Sinclair, Margaret, Mrs, 240 Sinclair, Thomas, 4, 6, 9, 28, 54, 56, 60, 62, 93a, 110–12, 116b–19, 123–6, 131, 137, 142–6, 155–87a, 187b, 188– 215(1), 215(2), 216–66a, 266b, 267– 77, 280d, 308b, 308c, 310b, 311–23a, 323b, 323c, 324–8a, 328b, 328c, 329– 31a, 331b, 336b, 342b, 344a, 344b, 345–54a, 355–64 Sinclair, Thomas, Mrs, 77 Sinclair, William, 131, 226, 228, 249, 307 Sioux/Halfbreed/Saulteaux war, treaty, 6 Sisters of Charity, 78, 122 sittings, special court. See special court sittings Sixth Regiment, Royal Warwickshires, 35. See also military law Slack, Thomas, 493b Slater, James, 4 Slater/Sletter, John, 4, 97, 110, 123, 238 Slater, Samuel, 467 Slater/Sletter, Thomas, 50, 472, 494, 518, 526, 530, 561, 579, 615, 657 Slater/Sletter, William, 88, 103, 129, 257, 274, 286, 519 Slatter, Richard, 88 Sletter, George, 97 Smith, Ann (Nancy Walking Chief), 70

906

Index

Smith, Baptiste, 524 Smith, Caroline, 109 Smith, Christopher, 238 Smith, Donald A., 512 Smith, Frederick J., 456 Smith, Gilbert, 472 Smith, Henry, 220, 493a, 493b Smith, Jackson, 163 Smith, James, alias Lacord, 8 Smith, John James, 4, 35 Smith, John Lee Lewes, 54 Smith, John R., 4, 70, 80, 82, 151, 152, 154, 265 Smith, Lawrence, 472, 517 Smith, Patience, Mrs, 59 Smith, Richard, 29a, 29b, 29c, 54, 478 Smith, William, 1, 59, 60, 65, 66, 76, 78, 586, 618. See also court clerks Smith, William R./William R., Jr, 1, 6, 9, 19, 50, 69, 77, 109, 211, 246, 293, 311, 355, 363, 376, 414 smuggling, 246. See also customs duties Snow, John, 454 solicitors. See scriveners solitary imprisonment, 8 special court sittings, 6, 18, 77, 166, 414 Spence, Andrew, 34, 278, 472, 517 Spence, David, 103, 188, 290, 493b, 496, 548, 561, 614, 615 Spence, Donald, 118, 128 Spence, George, 57 Spence, Harriette, 88 Spence, James, 32, 35, 51, 80, 88, 109, 118, 133, 220, 289, 296 Spence, John, 6, 88 Spence, Peter, 57, 88 Spence, Robert, 273 Spence, Thomas, 390, 526, 617, 652 Spencer, Charles, 483, 485 Spencer, G.B., 682 spirits. See ardent spirits, sale of; liquor Spratt, William, 60, 76, 119 St Aneau, Joseph, 156

St Denis, Jacques/Jacob, 305, 417a, 417b St Denis, Moyses, 204 St Germain, 115 St Germain, Augustin, 476, 484b St Germain, Joseph, 36, 135, 396, 404 St Germain, Mary, 73 St Germain, Pierre, 19, 158, 471 St Luc, Athanas, 239 St Luc, François, 267 St Luc, Gilbert, 418, 517 St Lucier, 185 St Matthew, André Jerome, 484a, 484b St Matthew, Paulette, 202 Stadgal, Charles, 121 Stanley, James, 203 Statute of Frauds (1677), 157 stay of proceedings, 99, 473, 501. See also attorney general discretion steamboats, 364, 455c steam mills, 160 Stevens, Mrs, 77, 81 Stevens, Richard, 77, 93b, 97, 123, 130, 131 Stevens, William, 54 Stevenson, Charles, 337 Stevenson, George, 336a, 336b Stevenson, John, 46, 580 Stevenson, Mary, 46 Stevenson, Mrs, 238 Stevenson, Philipe, 172 Stevenson, Roderick, 514, 580 Stevenson, William, 72, 88, 101, 134 Stewart, James, 238, 372, 680 stolen goods, possession, 203. See also receiving stolen property Stone Fort. See Fort Garry, Lower Stotgale, Charles, 86, 169, 171, 222, 425 Stotgale, Mrs, 94 Straightback, alias Tinsmith, 8 Strang, Andrew, 417b, 531, 614, 620 Strong, C.D., 398, 399

Index Struthers, T., 566, 567 Stuart, J.C., 680 Sturgeon Creek, 330, 361 Stutsman, Enos, 414, 483 substantial justice, 131, 190, 211, 238. See also bias succession. See wills and estates Sullivan, Pat, 467 summonses, 235, 246, 264. See also constables; service of documents; sheriffs Sundays, 172 suppressed/altered court records, 75, 77 sureties. See bail; recognizances surveyors, 141b, 141c, 187a, 187b, 208, 244, 289, 376 Sutherland, Alexander/Alexander, Jr, 28, 84, 116b, 130, 131, 137, 160, 185, 234, 238, 357, 369, 619 Sutherland, Donald, 619 Sutherland, George, 2, 76, 82, 83, 85, 90, 101, 109, 125, 126, 129, 137, 144, 146, 238, 340 Sutherland, James, 110, 238–40, 467 Sutherland, John, 5, 47, 50, 51, 85, 103, 130, 131, 141b, 467, 493b, 496, 548, 561, 614, 615, 619, 657 Sutherland, Robert, 49a, 49b, 127, 129, 174, 599 Sutherland, Roderick, 77, 113 Sutherland, Thomas, 274 Sutherland, William, 50, 52, 76, 86, 90, 130, 131, 149, 238, 365, 485, 561 Suttee [name variant]. See also Settee Suttee, James, Reverend, 522 Swain, Elizabeth, 238 Swain, James, 77, 93a, 253 Swain, John, 138 Swain, Robert, 39 Swain, Thomas, 238 Swanson, Thomas, 138 Sweeney, Michael, 203

907

Swinford, Herbert, 636 Symeson, William, 466 Taché, Alexandre-Antonin, Bishop, 370a, 430 Tait, David, 149, 439, 472, 549, 574, 584 Tait, George, 238, 580 Tait, James, 4, 62, 68, 80, 81, 93a, 108, 113, 134, 203, 490, 580 Tait, John/John, Jr, 9, 27, 28, 32, 53a, 53b, 77, 90, 97, 222, 278 Tait, Joseph, 152, 235, 484b Tait, Robert, 146, 149, 160, 184, 216, 245, 277, 342a, 342b, 361, 362, 372, 373, 417a, 425, 449, 450, 486, 503, 514, 538, 539, 609, 671 Tait, William/William, Jr/William, Sr, 1, 4, 19, 51, 73, 93b, 98, 109, 116, 119, 127, 129, 130, 131, 136, 141b, 146, 149, 160, 238, 322, 478 Tate, William, Mrs, 238 Taylor, Alan, 203 Taylor, Alexander, 494, 561, 579, 614, 615 Taylor, Alfred, 530 Taylor, David, 183, 215(1), 290, 472, 622 Taylor, Edward, 265 Taylor, George/George, Jr, 198, 274 Taylor, Henry, Reverend, 238 Taylor, James/James, Jr, 2, 37, 46, 74, 82, 88, 93a, 110, 124, 128, 130, 183, 198, 274, 494, 531, 557, 561, 579, 602, 606, 619 Taylor, John, 191, 238, 281, 344b, 360, 568–72 Taylor, John, Mrs, 238 Taylor, Peter, 445 Taylor, Samuel, 478 Taylor, Thomas, 323a, 323b, 323c Taylor, William, 9, 17, 25, 28, 50, 51, 69, 76, 82, 103, 442

908

Index

Taypwewitahmook, 240 Teebeescookemeek, 98 Teibeau (Thebeault?), François, 243 Temperance Society, 117 Templeton, Alexander, 493b, 561, 614, 615 Terre Qui Brûle, 6 testimony: clerk testimony, 355; counsel testimony, 425. See also evidence; judge testimony; juries, juror testimony; oaths Thebeault, Louis, 72, 74, 78, 107, 124, 133, 138, 151, 162, 230, 304, 305, 368, 472 Thebeault, Reverend, 113 Thébert/Thibert, Pierre, 147, 472 theft, 3, 37, 38, 45, 79, 84, 85, 87, 88, 94, 95, 107, 110, 112, 114, 136, 137, 143, 150, 154, 166, 167, 173–6, 192, 194, 203, 212, 215(1), 240, 241, 248, 334, 340, 365, 366, 389, 390, 424, 425, 463a, 464a, 464b, 466, 469, 470, 473, 476, 480–2, 488, 489, 491–3a, 496, 501 theft, burglary, 115, 132, 133 theft, civil. See animals, theft; conversion; detinue theft, robbery, 81, 454 theft, shoplifting, 79 Thibaudeau, W.B., 484a Thom, Adam, 1–49a, 49b, 50–8, 68, 69, 75, 77, 84. See also recorders of Rupert’s Land Thomas (an Indian), 128 Thomas, Ann Elizabeth, 238 Thomas, Catherine, Mrs, 238 Thomas, Celestin, 303, 330, 431a, 444 Thomas, Charles, 425, 485 Thomas, John/John, Sr, 12, 657 Thomas, Maria, 238 Thomas, Mary Anne, 494 Thomas, Simon, 238, 494

Thomas, Thomas, 19, 50, 52, 77, 107– 15, 116a, 116b, 117–41a, 141b, 141c, 142–54, 275 Thomas, William/William, Jr, 6, 62, 68, 81, 93a, 103, 116a, 125, 126, 238–40, 273, 472, 493b, 494, 494(1), 526, 619, 657 Thomson, John, 389, 466 Throne, Thomas, 126 Tinsmith. See Straightback Todd, Albert, 494, 530, 615, 657 Todd, William, Dr, 78 token damages and fines, 25, 59, 60, 184, 187b. See also damages, civil Tourcotte, Vital, 121, 254 Touron, 37 trade monopoly, Hudson’s Bay Company, 68 traffic, road, 250 translation. See interpreters transportation: sea voyages, 28; steamboats, 364, 455c. See also carriers; Red River carts; York boats transportation as banishment, 325 treason. See levying war treaties: Ashburton Treaty, 133; Selkirk Treaty, 25; Sioux/Halfbreed/ Saulteaux war, treaty, 6 Treaty of Utrecht, 1713, 49a trespass to chattles. See animals, ownership; conversion; detinue; replevin trespass to land. See land, trespass trespass to person. See assault and battery; false imprisonment trial in absentia, 18, 19, 138, 151, 452b. See also default judgments trials, adversarial/inquisitorial, 414 trials, retrials of. See retrials Trindle, Peter, 130 tripmen. See boat crews; York boats Tristam, James, 238, 251, 328c

Index Trottier, André, 6 Trottier, Michel, 204 Troupe, John, 203 true bill. See indictments Truthwaite, Jacob, 4, 29a, 29b, 35 Truthwaite, Thomas, 77, 88, 93a, 238– 40, 472 Turcotte, Baptiste, 45, 223 Turcotte, Vital, 8, 45, 219, 223, 464b Turner, 59 Turner, Ann, 169 Turner, George, 153, 160, 169, 212 Turner, John, 169 Twin, The, 127 United States border, 133, 483, 484a, 484b, 485. See also customs duties; Pembina; smuggling Utrecht, Treaty of, 49a, 1713 Vallée [name variant]. See also Lavallée Vallée, Baptiste, 18 Vallette, Jacques, 94 Vallière, Louis, 668 Vandal, Antoine, 154, 170, 200, 240, 353, 517 Vandal, François, 516 Vandal, Joseph/sons, 100, 198 Vandal, Louis/Louison, 303, 623 Vasseur, André, 91 Vasseur, Mrs, 91 Veine, David, 624 Venne, Salamon, 485 Vermette, Antoine, 200 Vermette, Pierre, 368 Versailles, David, 368 Versailles, Jenneveve, 73 vicarious liability. See liability vigilante justice, 212, 238. See also demonstrations, riots and uprisings; jailbreaks Villebrun/Villeneuve, Isidore, 254, 483 Villiers, Frank, Captain, 455c, 468, 472

909

Vincent, John/John, Jr/John, Sr, 4, 6, 9, 32, 33, 46, 62, 68, 73, 77, 79, 84, 93a, 101, 116a, 125, 126, 139, 149, 238– 40, 249, 286, 466, 468, 471 Vincent, Thomas, 51 Vincent, William, 425 Vivier, Joseph, 224 Vivier, Magdelene, 55 Voudrée, Toutsaint, 258 Voudrie, Maximillien, 243 voyages, sea, 28 wages, employment, 160 Wagnor, Michael, 279 Walker, David M., 472, 483, 485, 493b, 494, 501 Walker, W.J., 505 Walking Chief, Nancy. See Smith, Ann Wandegoos (an Indian), 94 war, Aboriginal, 6, 325 war, levying. See levying war Ward, James W., 649 Ward, John, 121 Warden of the Plains, 6. See also Grant, Cuthbert warrants, bench, 455c warrants, search, 425, 468 Warren, James, 467, 487 water mills, 361 Watson, Alexander, 70, 76 Watt, William Henry, 483, 484a, 484b, 485 Waywaypus, 125, 126, 129 Weesakecoon, 251 Wells, Annie, 471 Wells, George, 59, 61 Welsh, Ann, 76 Welsh, George, 59, 60, 76, 80, 81, 86 Welsh, Mrs, 81 Wharburton, Sergeant, 203 Wheeler, James, 631 whiskey. See ardent spirits, sale of; distilleries; liquor

910

Index

White, James, 483, 669 White, Jem, 156 White, Thomas, 238, 472, 476, 518 White Nail, 325 Whiter, William, 215(1) Whiteway, James, 88 Whiteway, Joseph, 216, 217 Whitford, George, 12, 258 Wild, George, 149 wills and estates, 29a, 29b, 29c, 275, 300a, 300b, 309, 310a, 310b, 355, 370a, 422b, 423a, 512. See also Statute of Frauds (1677) Wilson, Constable, 442 Wilson, Daniel, 183, 274 Wilson, James, 491, 492 Wilson and Hyman, 650 Winnipeg, Portage and Main, 244 Wintrel, Alexis, 6 Wishart, James, 274, 445 witnesses: cross-examination, 97; excessive number, 273; exclusion from courtroom, 70; perjury, 88, 90, 354a, 354c. See also evidence;

juries, juror testimony; oaths; testimony witnesses, expenses and fees, 64, 78, 80, 81 Wolseley, Garnet, Colonel, 455a women. See adultery; breach of promise of marriage; concealment of birth; criminal conversation; infanticide; married women, capacity to sue; seduction Work, Alexander, 9, 54 Work, William, 130, 494, 531, 606, 657 Worth, George, 41 Wright, Archibald, 472, 526, 532 Wrixon, John, 614 Wrixon, W., 614 Wyassissin, 127 Yates, Jonathan, 469, 470 York boats, 131, 138, 139, 151, 155, 166, 167, 174–6, 192, 368. See also boat crews Young, David, Dr, 472 youth. See children

2015 Patrons of the Osgoode Society

Blake, Cassels & Graydon LLP Chernos Flaherty Svonkin LLP Gowlings McCarthy Tétrault LLP Osler, Hoskin & Harcourt LLP Paliare Roland Rosenberg Rothstein LLP Torys LLP WeirFoulds LLP The Osgoode Society is supported by a grant from the Law Foundation of Ontario. The Society also thanks the Law Society of Upper Canada for its continuing support.

Publications of the Osgoode Society for Canadian Legal History

2015

2014

2013

2012

Susan Binnie, Eric Tucker, Barry Wright, eds., Canadian State Trials: Volume IV, War Measures and the Repression of Radicalism 1914–1939 Lori Chambers, Adoption in Ontario: A Legal History David Fraser, Honorary Protestants: A Socio-Legal History of the Jewish School Question in Montreal Dale Gibson, Law, Life, and Government at Red River Volume 1: Settlement and Governance, 1812–1872 Volume 2: General Quarterly Court of Assiniboia, Annotated Records, 1844–1872 Christopher Moore, The Court of Appeal for Ontario: Defining the Right of Appeal 1792–2013 Dominique Clèment, Equality Deferred: Sex Discrimination and British Columbia’s Human Rights State, 1953–1984 Paul Craven, Petty Justice: Low Law and the Sessions System in Charlotte County, New Brunswick, 1785–1867 Thomas Telfer, Ruin and Redemption: The Struggle for a Canadian Bankruptcy Law, 1867–1919 Roy McMurtry, Memoirs and Reflections Charlotte Gray, The Massey Murder: A Maid, Her Master, and the Trial that Shocked a Nation C. Ian Kyer, Lawyers, Families, and Businesses: The Shaping of a Bay Street Law Firm, 1863–1963 G. Blaine Baker and Donald Fyson, eds., Essays in the History of Canadian Law: Volume XI: The Canadas R. Blake Brown, Arming and Disarming: A History of Gun Control in Canada Eric Tucker, James Muir, and Bruce Ziff, eds., Property on Trial: Canadian Cases in Context

Publications of the Osgoode Society for Canadian Legal History

2011

2010

2009

2008

2007

913

Shelley Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905 Barrington Walker, ed., The African-Canadian Legal Odyssey: Historical Essays Robert J. Sharpe, The Lazier Murder: Prince Edward County, 1884 Philip Girard, Lawyers and Legal Culture in British North America: Beamish Murdoch of Halifax John McLaren, Dewigged, Bothered, and Bewildered: British Colonial Judges on Trial Lesley Erickson, Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society Judy Fudge and Eric Tucker, eds., Work on Trial: Canadian Labour Law Struggles Christopher Moore, The British Columbia Court of Appeal: The First Hundred Years Frederick Vaughan, Viscount Haldane: The Wicked Step-father of the Canadian Constitution Barrington Walker, Race on Trial: Black Defendants in Ontario’s Criminal Courts, 1850–1950 William Kaplan, Canadian Maverick: The Life and Times of Ivan C. Rand R. Blake Brown, A Trying Question: The Jury in Nineteenth-Century Canada Barry Wright and Susan Binnie, eds., Canadian State Trials, Volume III: Political Trials and Security Measures, 1840–1914 Robert J. Sharpe, The Last Day, the Last Hour: The Currie Libel Trial Constance Backhouse, Carnal Crimes: Sexual Assault Law in Canada, 1900–1975 Jim Phillips, R. Roy McMurtry, and John Saywell, eds., Essays in the History of Canadian Law, Vol. X: A Tribute to Peter N. Oliver Gregory Taylor, The Law of the Land: Canada=s Receptions of the Torrens System Hamar Foster, Benjamin Berger, and A.R. Buck, eds., The Grand Experiment: Law and Legal Culture in British Settler Societies Robert Sharpe and Patricia McMahon, The Persons Case: The Origins and Legacy of the Fight for Legal Personhood Lori Chambers, Misconceptions: Unmarried Motherhood and the Ontario Children of Unmarried Parents Act, 1921–1969 Jonathan Swainger, ed., The Alberta Supreme Court at 100: History and Authority Martin Friedland, My Life in Crime and Other Academic Adventures

914

Publications of the Osgoode Society for Canadian Legal History

2006

Donald Fyson, Magistrates, Police, and People: Everyday Criminal Justice in Quebec and Lower Canada, 1764–1837 Dale Brawn, The Court of Queen’s Bench of Manitoba 1870–1950: A Biographical History R.C.B. Risk, A History of Canadian Legal Thought: Collected Essays, edited and introduced by G. Blaine Baker and Jim Phillips Philip Girard, Bora Laskin: Bringing Law to Life Christopher English, ed., Essays in the History of Canadian Law, Vol. IX: Two Islands, Newfoundland, and Prince Edward Island Fred Kaufman, Searching for Justice: An Autobiography John D. Honsberger, Osgoode Hall: An Illustrated History Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall Constance Backhouse & Nancy Backhouse, The Heiress versus the Establishment: Mrs. Campbell’s Campaign for Legal Justice Philip Girard, Jim Phillips & Barry Cahill, eds., The Supreme Court of Nova Scotia, 1754–2004: From Imperial Bastion to Provincial Oracle Robert Sharpe and Kent Roach, Brian Dickson: A Judge’s Journey George Finlayson, John J. Robinette: Peerless Mentor Peter Oliver, The Conventional Man: The Diaries of Ontario Chief Justice Robert A. Harrison, 1856–1878 Jerry Bannister, The Rule of the Admirals: Law, Custom, and Naval Government in Newfoundland, 1699–1832 John T. Saywell, The Law Makers: Judicial Power and the Shaping of Canadian Federalism David Murray, Colonial Justice: Justice, Morality and Crime in the Niagara District, 1791-1849 F. Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume Two: Rebellion and Invasion in the Canadas, 1837–1838 Patrick Brode, Courted and Abandoned: Seduction in Canadian Law Ellen Anderson, Judging Bertha Wilson: Law as Large as Life Judy Fudge and Eric Tucker, Labour Before the Law: Collective Action in Canada, 1900–1948 Laurel Sefton MacDowell, Renegade Lawyer: The Life of J.L. Cohen Barry Cahill, The Thousandth Man: A Biography of James McGregor Stewart A.B. McKillop, The Spinster and the Prophet: Florence Deeks, H.G. Wells, and the Mystery of the Purloined Past Beverley Boissery and F. Murray Greenwood, Uncertain Justice: Canadian Women and Capital Punishment

2005

2004

2003

2002

2001

2000

Publications of the Osgoode Society for Canadian Legal History

1999

1998

1997

1996

1995

1994

1993

915

Bruce Ziff, Unforeseen Legacies: Reuben Wells Leonard and the Leonard Foundation Trust Constance Backhouse, Colour-Coded: A Legal History of Racism in Canada, 1900–1950 G. Blaine Baker and Jim Phillips, eds., Essays in the History of Canadian Law, Vol. VIII: In Honour of R.C.B. Risk Richard W. Pound, Chief Justice W.R. Jackett: By the Law of the Land David Vanek, Fulfilment: Memoirs of a Criminal Court Judge Sidney Harring, White Man’s Law: Native People in NineteenthCentury Canadian Jurisprudence Peter Oliver, Terror to Evil-Doers: Prisons and Punishments in Nineteenth-Century Ontario James W. St.G. Walker, Race, Rights, and the Law in the Supreme Court of Canada: Historical Case Studies Lori Chambers, Married Women and Property Law in Victorian Ontario Patrick Brode, Casual Slaughters and Accidental Judgments: Canadian War Crimes and Prosecutions, 1944–1948 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 Carol Wilton, ed., Essays in the History of Canadian Law, Vol. VII: Inside the Law – Canadian Law Firms in Historical Perspective William Kaplan, Bad Judgment: The Case of Mr. Justice Leo A. Landreville Murray Greenwood and Barry Wright, eds., Canadian State Trials, Volume I: Law, Politics and Security Measures, 1608–1837 David Williams, Just Lawyers: Seven Portraits Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, Vol. VI: British Columbia and the Yukon W.H. Morrow, ed., Northern Justice: The Memoirs of Mr. Justice William G. Morrow Beverley Boissery, A Deep Sense of Wrong: The Treason, Trials, and Transportation to New South Wales of Lower Canadian Rebels after the 1838 Rebellion Patrick Boyer, A Passion for Justice: The Legacy of James Chalmers McRuer Charles Pullen, The Life and Times of Arthur Maloney:The Last of the Tribunes Jim Phillips, Tina Loo, and Susan Lewthwaite, eds., Essays in the History of Canadian Law, Vol. V: Crime and Criminal Justice Brian Young, The Politics of Codification: The Lower Canadian Civil Code of 1866 Greg Marquis, Policing Canada’s Century: A History of the Canadian Association of Chiefs of Police

916

1992

1991 1990

1989 1988 1987 1986

1985 1984

1983 1982 1981

Publications of the Osgoode Society for Canadian Legal History

Murray Greenwood, Legacies of Fear: Law and Politics in Quebec in the Era of the French Revolution Brendan O’Brien, Speedy Justice: The Tragic Last Voyage of His Majesty’s Vessel Speedy Robert Fraser, ed., Provincial Justice: Upper Canadian Legal Portraits from theDictionary of Canadian Biography Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth-Century Canada Philip Girard and Jim Phillips, eds., Essays in the History of Canadian Law, Vol. III: Nova Scotia Carol Wilton, ed., Essays in the History of Canadian Law, Vol. IV: Beyond the Law – Lawyers and Business in Canada 1830–1930 Desmond Brown, The Genesis of the Canadian Criminal Code of 1892 Patrick Brode, The Odyssey of John Anderson Robert Sharpe, The Last Day, the Last Hour: The Currie Libel Trial John D. Arnup, Middleton: The Beloved Judge C. Ian Kyer and Jerome Bickenbach, The Fiercest Debate: Cecil A. Wright, the Benchers, and Legal Education in Ontario, 1923–1957 Paul Romney, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature, 1791–1899 Martin Friedland, The Case of Valentine Shortis: A True Story of Crime and Politics in Canada James Snell and Frederick Vaughan, The Supreme Court of Canada: History of the Institution Patrick Brode, Sir John Beverley Robinson: Bone and Sinew of the Compact David Williams, Duff: A Life in the Law David H. Flaherty, ed., Essays in the History of Canadian Law, Vol. II Marion MacRae and Anthony Adamson, Cornerstones of Order: Courthouses and Town Halls of Ontario, 1784–1914 David H. Flaherty, ed., Essays in the History of Canadian Law, Vol. I