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CASES ARGUED AMD DETERMINED IN THE Court of king's BENCH, FOR TH DISTRICT or QUEBEC, lit fT The Province of LoweuCandda^ IN HILARY TERM, nr TMC firtlBTR tear or TAB RBION Of OEORGE III. HERALD ugHintt SKINNER. 1810, - ' T,%^ '; i J^ - ■'"■% ■'v4« Tiieiday,F^, ■ ->fl ^AfA;, ■ ... -^^ A jo DOM "NT was obtained in thik Court by t6e ^IfSSkli pLintiff, a tavern keeper^ against ihe defen- cu'inueoniR d«rii, «n officer in the artny^ in Michaeitnaf term last, teill^by tte for foriy pounds currency, with interest and coats, {JJ^^J^^J^ upon iwo promissoiy notes of the defendant payable promul^r'y nJl to the plaintiff or his order. The plaintiff sued o^\ Si?to*lr^; a writ of Fieri faciasj upon which the Sherilf the puties not made a return of nulla bona^ and the judgment re* ^^^J^^ naining unsatisfied, a rule was obtained on the ist^ ^^ note' not instant calling ori tbi- defendant to shew cause this b^forv!!iwr«! il«y, why a Wfil of Capiat ad salts/aciendum should "»»«i««#»«b not iiaue againtt aim. The defendant wat calUtl ciunuu»«. , -. -A t t • a i i t I , » • 9 » ' « > I » » 9 1 » » . ' I ( I « } ■V. 1810. Heralr against Skimmer. CASES !M tlltART TERM and not appt^tmg^ Vanfelson^ for the plaintiff, wai heird in support of the trulej he contended that the plaintiff was, in this case, entitled to an exe- cution against the person of the defendant under the Code Civile, and under the Provincial Ordinance, 25 Geo. 111. c. 2. s. 38. which declares that **■ For ** the satisfaction of all Judgments given in com- ** aiercial jii)attcr8, between mcTchants or traders, ** ds well HS of 1^11 debts due to merchants or traders <* for goods, wares and merchandize, by them ** sold, execution shall issue not only against the « goods, chattels, lands and tenements uf the de- *' fendant, but also, in case they shall not produce *' the amount of the plaintiff's demand, against his *' person." The original cause of action, he said, was clearly a commercial matter^ the notes being drawn payable to order, and therefore negotiabht and that the parties quo ad the notes must be deemed tradtti* SxWBLL, Ch. J. It appears, upon the face of the proceedings in this cause, that the plaintiff is an Inn Keeper, and the defendant a Lieutenant in the army. The application is for a Capias ad satis/a- ciendum, upon a return of nulla bona^ without any affidavit that the defendant is immediately about to leave the province ; and upon the sole ground that the judgment being fo'indeJ upon two piomissory notes payable to the plaintiff or his order, the de> fendant is liable to the contrainte par corps. The Ordinance of 1667, Tit. 34. An. 4. allows the con- trainte par corps *• pour dettes entre marchands pour Jait de la marchandise dont ils se melent : ' And deci- sions in the Courts of Francs have settled that ta entitle the plaintiff to the contrainte par corps upon a promissoty note payable to order, both the draw- er and payee, muit be merchants in point of/act^ [a) (a) L. C. Df^nizart, ». 5th p. 447 to 460.— ». Delkagonette, and Hillier v. lellicr: Ju». MSS. See also Eucyclopedie MethBdiqiie-^JttiliprurteDcc «. S. Verbo C«iKuiair«. ai *■ < ■ • ■ » • * * - • I I » • ' • • « '6- '' « lit t/, I,* 02B686 • • • < .• < ' '•• I . . ' • • . •' • • ■ < - » . J T ' ^7 5' 07 piomissory IN THE FIFTIETH YEAR OF GEORGE III. as well as in ibe c^ie of ordinary dcilings. Even taking it then for granted that we are bound by the Ordinance, we cannot, on ihiit ground, award what is ask'd. If th* plaintiff be entitled to a capias ad iotisfaciendum^ .his right to it must rest upon the 38th Section of the Provincial Ordinance, 95 Gfo 3, e. 2. by which a capias ad satisfacitndum, upon a re* tmn ot nuUa bona, h allowed, ist.-." For the satis- *< faction of ail Judgments given in commercial " matters between merchants or traders, adly, For " the satisfaction of alt Judgments given for debts " due to merchants or traders for goods, wares and " merchandize by ihem sold." Now the defendant is not a met chant or a trader by profession, and the decisions of the Courts of law in France in pari ma. ieria to which we have adverted, do not permit ui to consider him to be quoad hoc, a merchant or tra. der, the case thertfure docs not come within th^ first de&criptiua ; and as the note is expressed " for va- lue received" only, and we have no evidence that this value consiMed " in goods, wares or merchandize sold," we cannot consider it as coming within the second. The Ruie iherefoie inu4l be discharged. » Per Curiam f Rule discharged. Hunt against Bru^s and others, THIS was an action on the case, for the noil deliveiy of a cari^o of Coal which the defen- dants, who are merchants, had as alleged in the declaration, bargained and sold to the PlaintiflPwho is a blacksmith and ironmonger* Plba, The general issue. On the 8th instant the plaintifiF declared his option As and 1810. Herald agalHti Sbinrbr* Priitty^F^h.i, In an action, upon an agree* ment for the sals of a cargo of coal, by a mer- chant, to an U ronmongerand blacksmith, th« trial and ver- diet of a Jury may l>e obtain- ed, under th» Prov. Ord. 85, Geo. 3. c, 9U t.38. 6; .1 ■ ■w r 1810. HVNT Mfaifi$l Bui^cR and 1! CASKS IN HILARY TERM and choice to have and obtain the trial and verdict of a jury, under the Prov. Ord. 95 Geo. 3. c. a. s. g. which declares, *' That all and every person *' having suits at law, and action;, grounded on *' debtSi promises, contracts and agreements, of a " mercantile nature only, between merchant and ** merchant, and trader and trader, so reputed and ** understood, according 10 law, and also of perso- ** nal wrongs proper to be compensated in damages, ** may, at the option and choice of either party, •* hiive and obtain the trial and verdict of a Jury, as ** well for the assessment of damages on personal '* wrongs committed, as the determination of mat- el and cargo, (the latter the property of the plaintiffs.) for an alleged breach of the laws of trade and navigation} and their suit is itill pending and undetermined in that Court. The plaintiifs, however, contend that the seizure was an act of tiespas^, and have brought this action, for the recovery of the damages which they have thereby sustained. But it m not pretended that the Adtniralty have not jurisdiction over the question, raised by the suit th-^re instituted, upon the lega* lity of the seixure.-<-That Court, then, having juns« diction over this question, and being in possession of it, (a) and this question being the gist of the present action, can we do otherwise than delay the latter, until the former is decided? How great an absurdity would follow, if the plaintiflFs should be permitted to proceed and recover in this action, and the sfizure should aiierwatds be adjudged to be le« gal, in the due course of law i Per QuriarUt Let the proceedings be staid. (a) Pigcau, SOS, 801. also CI, A4 Hunt I ! W- 1810. TuttdayFtb. CASES IN HILARY TERM Hunt tigaimt Brucr and others. THIS wai a sprcial action on the casr. The drclaraiion seated, that the dcfendanfn, bring ThrnifrthH '"•'chanM, did bargain and nHI lothe platntifF who nttheSMHirof i» a bhrk^mith and ironmonger, lis chaldronf of {l)V^forr1' N*^*^ Caxtle Coal, to be taken per invoicr ; the in canmim. in same being the cargo of the Bri^ Anne, Robert «.T«'/MnK Weatherly matter, then in the Port of (Quebec. partofiheruiM That the drfmdantA did covenant, promise, and laid dnwn i>y tgrce, to deliver the Coal to the plaintiff on dt^mand, iund'*«o which ■' °"* ^^ *^* wharvca, in the city of Qurbcc ; and fn «iirh rnm-v that in Consideration thereof, the plaintiff had TeTdT j;;; -greed to pay to the defendants, thirty shilling., Ord.!<5r.>o..i currency, for each and every chaldron. That the thrreforearaiF plaintiff wa* always teady, and did offer, to receive ofRoodi for the aaid quantity of Coal, and to pay the def^-n* RiK.iinotKiMNi, dants the Stipulated price, and in every respecr to JfoKoIiiraru conform to the agreement, and did demand and rHfnrhasiM-rn require of the defendant!, to deliver to him the •all^T'lt'iven" "id 119 cbdldrons of Coal, let the defendants, nor any mrmo. not rcoardins their promises, but intending to iniure ran<ia4e in writ, and dcfraud the plaintiff, and to cause htm great hurt '"'' and prejudice in his trade, as a blacksmith and iron* monger, and to deprive him of the reasonable pro- fit, which he otherwise would have made, upon the aale or other employment of the said Coal, had wholly failed, &c, to deliver, &c. when demanded, &c. to the damage of the plaintiff five hundred pounds. Plba, the genera] issue. The action being grounded on a promise and agreement of a mercantile nature, and the parties being merchants and traders, the plaintiff, on a for- mer day, had made his option and choice to have and obtain the trial and verdict of a Jury, under the Prov. Ord. S5 Geo. 3. c. 2. s. 9. {a) and having 3. c. 2. (a) Ante. .9. I •3 Jk'^. thercoB I!f THP. FirriETH YF.AR OP GKOimS III. thcrcnn moved for a Venire, the lame had beeo gran* tedi returnable this day. The Jury being swornt Bowerif for the plaintifT, opened the caie when it appear'*d that there was no note in writing of the agreement, no part of ihe coal delivered, nor any earnest givrn, and he was proceeding to prove, by parol evidence, the contract of bargain and sale de* dared on, when, PotSf for the defendant!, objected to the evidence offered, it being in proof of a commercial matter^ and in»u(ficient to support the declaration, under the Statute ofjrauds^ (39. C. a. c. 3. s. 17.) which established rules of evidence in certain commercial cases, and must be considered as in force in Lower Canada, by virtue of the Prov, Ord. 95 Geo. 3. c. fl. s. 10. That by the 17 section of the Statute of Jraudi it was enacted, ** That no contract for the *' sale of any goods, wares, and merchandizes, for '* the price of £10. sterling or upwards, shall be allovvi d 10 b; good, except the buyer shall accept part of rhe goodi so so d, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note 01 memorandum in writing of the said bar* gain be made and signed by the parties to be charged by such contract, or their agents there» unto lawfully authorized." He, therefore, con- tended, that as no part of the coal had been de* livered, nor any earnest pa^id* nor any note or memorandum in writing made, the evidence offered of the alleged agKcement, could not be received ; and he cited Rondeau v, Wyaty a. H* Black. Rep, 63* Cooper, V, Elston, 7. Jem. Rep, 14. Towers v, Osm home, i. Stra, 50$* Clayton v, Andrews, 4. Burr, Bowen, *i •I « II 1810. Hunt Baui R *vA othcri. iJ! V 10 1810. Hunt against Beuce and others. CASES IN HILARY TERM Botven, for the plaintiff, contended that the Sla ■ tute of frauds was no part of the law of Canada, and in no instance had been so considered, and, therefore all the cnglish decisions, founded upon that Statute, were inapplicable to the present case. That the Prov. Ord, 25. Geo. 3, c. 8. 1. 10, had not inirci* duced into this country, the whole body of the English law, in commercial cases, bat simply the English Rules of evidence, he, however, observed, that the question was new, and one he had not an- ticipated, and, consequently, was not prepai<.d to argue, but he wished the trial might proceed, re- serving for a future day the discussion of the ob- jection offered* Sewrll, Ch, J, This caose, after argument, has been referred to a Jury, because the parties plaintiff and defendants, respectively, are a trader and mer- <:hants, and the action founded on an agreement of a mercantile nature; and as it is cUar, thar snch a cause in France, would have been cognizable in the Conm sular jurisdiction, it is, with respect to the proof 10 be adduced, within the principle laid down, by the decision of this Court in Pczerf v. Meiklejohn ; (^) and recourse must be had, for the rules of evidence, to the laws of England. The question, then, is this, is the Statute 0/ frauds in this respect, in force in Cenada • and does it apply to the case before us, the contract being exe- cutory ? As to its ^)eing in force, the answer is ob- vious; it is unquestionably a part of the *' rules of evidence laid dowri by the laws of England," to which, by Statute (Ord. 25 Geo, 3. c. a. 5. loj, it is enacted, " recpurse shall be had in all the Courts <( of Civil Jurisdiction in this Province in proof of ** all facts concerning commercial matters.'* As to its being applicable to the case before us, the coa^ (ft) Post p. 11. tract ■^S' IN THE FIFTIETH YEAR OF GEORGE III. | | tract b?ing exec'itory; thi' question (which certain- J""*- ]y has fluctuat d in Westminster Hall), has at length ag'nZt been put to rest, by the very able decision of the court Bbccb, and of CmmoT Pleas in ^ondeau, v. Wyatt, (c) and the "^Ij!"*' confirmatoiy Judgment of (he Court of King's Bench in Cooper, v. Fhton. (d) Evidence theri'fore must be given of sortie memoranduni in writing, signed by the parties, or th.it some part of the coal purchased was delivered, or that some money was paid by the plainti(Fto the defend tnts on account of the cual; the plaintiff cannot othetwise recover. No evidence of either was offered, and the plain • tiff therefore, Per Curiam, was Nonsuited. (c) 2. H. Black. 63 (d) 7 Term. Rejj. 14. J The decision^ in the cas: of Pozer, v. Mc>iklejohn, being referred to in the prtceding Judgment, in Hunt V Bruce and others, it is inserted in this placet though the decision was anterior^ m point of time, to the p em riod, at which these reports commence» PozER against Meiklbjohn. IT was objected at the enquete, on the part of the defendant, that the case was not comm^rciai, and that the evidence, offered by the plaintiff, was inadmissible, under the law of the Country in force at the time of the conquest. The Chief Justice Sewbll, delivered the opinioQ of the Couit as follows : The plaintiff Pozer is a merchant, and alleges, in his declaration, that having purchased 77 ho:2:s- hcads of beer, he stored them in the cellars of tha defendant, MeiklejohUi who is a brewer, and he de- mands the value of the beer, and of the casks, on the ground of jH«A/(r;oAn*s refusal to deliver th^m. Mciklejohn, 1!' ■ 4pritt 1 S09. ■'!■ ■vansar^ I'l!" ■ ' 'ftidesm /;> ■thnns. *■ vay of ( .>.are f »:i!.;'ler r >'iiiner- Cla: •r.s,& In t acii'ins b. , . 't iipoa s-,i ■ '-■■ti dcti- G ri'.'..urse U..'-l he luid to ti- ; isli ru le It i-.idence. «.i,' ■ :l»f Ord. ib Jco. .'. c. 2. s. »') and gen or., 11 V ill all Cas' s wliioti by .he l:ivv of Jhi-arire were cKgn zable by the Consular jurisdiction. lilll V .^ 12 IROO. POZBR HIIKLBJOIIir / i < CASES IN HILARY TERM Meiilejohn, on bis part, admits the receipt of the beer, and of the casks, and also his refusal to deli* ver them, in which he persists, alleging that Pozer after storing them in his cellars, upon his own ac- count, 5old the whole to him, and that he is ready to pay the price, at which he purchased. These allegations are denied by Pozer, and the principal inquiry, therefore, will be, whether the beer and casks were or were not so sold to Meiklejohn, But the immediate question, that, which we are now called upon to decide, turns upon the evidence offered by the plaintiff; and we are to determine, whether, in this cause, recourse shall be had to the common law of Canada, that is, to that law which was in force, in the province, at the conquest; or to the ** rules of evidence laid down by the laws of *' England." A recourse to the common law of Canada, is the ordinary rule, to the laws of England an exception created bv Statute for those cases, in which, " proof i« to be made of facts concerning •* commercial matters." The lo section of the Ord, 25. Geo, 3. c, 2. having enacted that, ** in proof of ** all faci A concerning commercial matters, recourse ** shall be had, in ail Courts of Civil Jurisdiction ** in this Provmce, to the rules of evidence, laid down " by the laws of England." If therefore the facts in this case be facts concerning commercial matters, we must be governed by the law of England, if not, by the common law of Canada. In France, before the establishment of the Sove- reign Council of Quebec, and particularly in the Vicomte 0/ PariSf there were peculiar jurisdictions, (Jvges ConsuliJ who were appointed " afin dejuger •• ie$ affaires de commerce." {a) It is true, that m the provinces, or districts of France, in which no Juges Consuls were appointed, all ** affaires de commerce,'* as well as ordinary matters, were heard and deter* mined by the ordinary court* of law; (b) but it is (•) Jurii. Consnl. V. 1. p. !....(*) 2. Pigeau 130. Jud, MS8. equally ,1 rceipt of ihe usal to deli* 5 that Pozer his owrn ac- he is ready sed. These he principal le beer and lejohn. But we are now he evidence > determine, 5 had to the It law which :onquest; or f the laws of mon law of s of England ose cases, in s concerning 1 of the Ord, ' in ptoof of en, recour»e Jurisdiction ce, laid down the facts in matters, we J, if not, by the Sove- ilarly in the urisdictions, nfin dejuger % that in the ich no Jugei e commerce," and deter- {b) but it is .Jud. MS8. equally IN THE FIPTIBTH YEAR OF GEORGE III. equally true, that, when they were appointed, they held the exclusive cognizance of all commercial matters IP • ute, and of no other, (c) Cvrry mat* ter in di^ou therefore, to which, the jurisdiction of the Juges Consuls extended, was according to the law of Fiance, a commeruial matter or case, and all the facts, relating to such matters, were, consequent* ly, •* facts concerning commercial matters," Now the system of jurisprudence, which we ad- minister, has for its basis, the law of France, and particularly, that portion, of the law of France, which was observed as law in the Vicomte of Parts, before the tistablishmert of the Sovereign Council of Que- bec; and as the distinction, between commercial and ordinary matters, is thus known in the law of Canada, it is a safe course, for the legal interpreta- tion of that new rule, which, in such general terms, is prfscribed by the Ordinance, {d) to enquire whe- ther (he case be, or be not, a matter which woild have been cognizable, in the juiisdiction of the Ju- ges Consuls t as a commercial matter, that being the be»t criterion, by which we may decide, whether the facts of the case be, or be not, *< facts coacerning •* a commercial matter." The i6th Title of the Code Civile prescribes ** la forme de proceder" that is, the practice in the Courts of the Juges Consuls, and it i$ undoubtedly a fact, that the whole of this Title was abolished by the Redaction, " attendu que '* cette jurisdiction n'est point etabliedans le pays." >r(e) But this does not affect ths conclusion to be taken, the enquiry is, what, according to the kw of Canada, was an ajfaire de commerce or commercial matter ? and not, what was th.- practice, or forme de froceder, in a commercial matter? What was a commercial matter, according to that portion of the law of France, which was in force in Canada, was auch by the lav of Canada, and although every such (c) L. C. Denizart, Verbo— "Consuls de« Marchaods" 8. I, et 8. aad autliorities cited post (d) Pro?, Ord. 25 tiea S e j< •. 10. (•) KdiU«t Ont. Y. 1. p. 140i....Jud. MSS. case 13 1809. Pdzer tigainit HRIKLKJOmr .i< ■tA CASES IN HILARY TERM 1809. rase wrai cognizable in the ordinary Courts, yet if a p^^ER Consular Jurisdiction had been cieatfd, it would agninst have claimec^, and it would have held, ihe exclu- MBiKLEjoiiN giyg co^nizante of such caj-es, as in France, under the preexisting laws of the Coiony ; the form of proceeding, only, would have varied from that which is prescribed by the Code Civile. Upon the principles stated, this will be found to be a very clear ca^e. All tradesmen, by th^ law of France, were considered to be merchants, or rather dealers; and all suits, to whirh merchants and dea* lers tvere patties, and in which, the cause of action arose in the way of trade, were held, in the Court! of Paris, to be commercial matters, or affairei de Commerce, T\it Editc of 1563, which created the consular jurisdiction of Paris, enacts, *' Que les Juges et *' Consuls des marchands conrioitront de tous pro- •' CCS et diff6rents qui scront ci-apres mns entre •' maichands pour faits dps marchandises senlemcnt •* privativement a tous Jugcs Royaux.' '(/") And the 4th Article, of the la Title of the Ordinance 0/1673, which, in this respect, was merely declaratory of the law of France, as it then stood, and had long been practised, as shall hereafter be shewn, and being declaratory, is now cited on that account, and on that account only ; is, in these distinct terms, " Les *' Jugfs Consuls connoitront des difFerents pour ** vent^-s faites par des marchands, artisans et gens •* de metier^ a fin de revendre, ou travaillcr de leur ** profession; comme tailletjrs d'habits pour etoffes, (* passemens ct autres fournitures; boulangers et ** patis&iers, pour bled et farine ; masons, pour ** pierres, moelon et plSrrej charpentiers, menui- ** sirrs, charons, tonneliers, et tourneurs, pour " bois; serruriers, marcchatjx, tailhndiers et ar« '* muriers, pour fer ; plombiers et fontenicrs, pour (/; SL. g. Deuiaart368. Oul. 2d Jud. M9S. «' plombf v\ IN THE PIPTIETH YEAR OF GEORGE lit. 16 rts, yet if a I, it would . the exclu- ance, under the form of from that be found to / fhc law of ;s, or rather Its and dea> ise of action I (he Courts r affaires de he consular es Jtiges et le tous pro- s miis entre s senlemcnt (/■) Andthc nee 0/167$, atory of the d long been and being nt, and on rms, " Les erents pour lans et gens cr de leur our etofipes, ulangers et 90ns, pour ers, menui- eurs, pour iiers et ar« ini«:rs, pour MSS. <^ plomb. •• plomb, et aiitres semblabies." (g) Le CamuSf and jsoo^ the author of the Jurisprudence Consulaire, are equal- p„zkr ly explicit, " Sous le nom de inarchand (says the a,s:aiiist ** former) on doit comprendrc le& artizans et les re- meikj-ejobb ** vcndeurs, pour ce qui concernc leur commerce." (h) And the latter says, " Tons ceux qui achetent ** pour rcvendre ou poor travaiiler de leur metier, \*' sont justiciables de« consul. Toue les auteurs •' ft'accordent lur ce point." {i) It has been just now observed, that the 4th Arti* cleofthe la Title of the Ordinance 0/1673, was iDerely declaratory of the law of France, as it then flood, rind had been long practised, and this will appear, upon reference to the Arrei of the 12th of May 1657, pronounced, ** en I' audience de la gran^ *• de Chamhre," and reported in Ricards Recueil d'Arriti, Arret 2d i [k) In this case the plaintiff was a litnner, and brought his action against two shoemakers to recover the value of a certain quan- tity of leather, sold to them, in the way of trade; and (his was held, and determined, to be a case with- in the jurisdiction of the Jttgei Consuh of Chalons, where the sale was made; and not to be, within the jurisdiction of the Prevote of Chalons, which, as the ordmary Court of law, had claimed cognizance of the 8uit| and was party to the Arret. But, even admitting that, before rlie conquest, what, by ihc law of France, was a commercial mat- ter, or (ijfaire de commerce, was not to be so consi* deu-d in Catiada, because, in th6 peculiar law of Canada, there was no such distinction, still, as such a distinction is now introduced, the wi!>dom and experience of France, in the designation of her cominerciai matters, by her £dtts, Declarations, and Arrets of her Courts of law, are the best and safest guides to the true construction of an Ordinance, by (#) L. C, Dcnizart, V. 6. p. 869.... (A) lb. 449 (j) Juris. Com. ». V. 17 (*) Vide also Boroier. V. 8. p. 736. where the Arret ifit»t«d Jttd. MSS. which, 16 CASES IN HILARY TERM 1809. 'i^ 1 Sir I I which, this distinction has been madr, by way of '^^^ exception to the ordinary rales of cvid-'ncf, which againtt are derived from the law of France. Whether the MBiKLKJouw Ordinance has gone bryond the law of France, or how far it has gone beyond it, we need nut at pre- «ent inquire, at the ca&e does not call for it. The application of the authorities which have been cited is too clear to require any comment; this is clearly a commercial matter, which would have' been cognizable in the jurisdictions of the jfuges Consuls, and in the proof of ail facts concerning it, we must, therefore, have recourse to the rules of evidence laid down by the laws of England, by which the evidence offered is as plainly admissible. In the forefroinji; Judf^ment the Court has declared that tlie Ordinance of 1673 wa« merely declaratory of the law of France as it then stood with respect to the .lurisdiction of the Juges Consuls in cases between merchants and trade*. men ; this is very clearly estalilishrd by Toubrau in '^ Les ImtituU da Droit Consulaire" a Treatise cited by several late frcnrh law writers unit cton. sidered to be a hook of authority, as this work is very scarce, (there belnj; but one copy in the Province, to my knowledge,) it may not perhaps be deemed improjier to ^'i\e a few extracts from it upon a point so im- portant, for the information of those who may not have it in their power t» bave recourse to that copy. Vol. i. pai;eSSI. Titre " De la Jurisdiction entre marchandset Artisans, etentre Artisans et Marchands" — "Boerius sur notre ancienne Coutumede Berry, Titre de Pftat et qttaHte dtt penonnet. ^ 4. noasdit que la difference qu'il y a entre un marrhand et un artisan, est, que It; premier acliete les choses et let revend, nou.ntUMA forma; etunartisian achete les chosesetleit revend, mutata formu, comme celoi qui achete du fer et en fait des Epees. Les artisans sont acheteiini et negocians marehands uctivement et pasalvement | car s'ils stmt acheteurs des marchaildises qui servent k la confection de leurs oovrai^es et mantifactures qu'ils en composent, qu'ils revendent, et qu'ils ii«i font que pour revendre, sont par consequent justiciables des consuls privati« Tement aux autres Ju||;es. C'cst pour la m£me raison que JVlaranta dit que let Fatissiers et Uoulaugers dolvent joair des privileges des murcliands." lb, pageSSS. " Mais la jurisdiction Consulnire s'ctead sur les marehands et sur les artisans activemenf et passivement, en demandant et en defendant, comme entre Libraire et Relieur, entre Mercier et les ouvriers qui travaillent pour lui, dans let choiefe detque^.es le marchand negocie, et des choses et ma^ tieres desquellei I'artisan a besoin pour travalUer deson metier, etfairelet choses qui entrent' dans le Commerce: C'estaussi ce qu'Aristote chap. 7. de ■eiPolitiqiiMaiilAMpolir 'latrdiMicDHfAipeiefe dr marcfaandise, qu'il appefle uercenaire." , . , , " Quoique I'on alt fait lout ce que Tona pA ponrane.intir notre jurisdiction } quel'on ait mis en usage let excepUouA, les interpretations eaptieusrs de TE. dit, le»distiD< l;i ville de Sens et les Juges et Consuls de !• meme ville le 96 Aoust I67!f. Sur ce que le S. PrevAt soutennit qu'un PotUr d'Etnin no poiivoit |ias faire assij^ner nn Cabaretier ou Manhaiuldt vin par de> Vant l«s Ju;*es et Coiisnis, instance qui a dure prds de quatre ans ho Conseil d'etat, qubique poiirsdiviede partetd'aulrenvec loute la rijpieur imaginable, et avec bint d'erlat, qite c'eat celte question qui a dunnf lieu i r article 4 du 19 Titre de noire OrdoAnance, Cette affaire a ete soutenne avec tant de f;en(§ro* ■itt par leu Juges et Comuli, au profit Ae»quets a iter^ndu cet Arrentt qu'ils v depenserent dix miile huit cent six livres qui ont C(tnseil a trouve que ce ReKlement ^toit tellement de consequence ait particuiier et au general de la ville de Sens, qu'il a jug^ qu'il n'^iolt pas raU ionnnltle que les Jnces Consuls et les Marchands supportassent seuls cette de« pense ; de sorte qn'il est ordnnne par le mdme arrest, apris avoir liqnide cette sotnint* qu'eile s(>ri»it imposue sur tons les ronlribuables an payement de la snbshbince de la ville rt Fauxbiiurgs de Sens, avec le courant des Deniers de la snhsistanc^. Tout le royaume cstprincip.-ilement redevable decet arrest Ileglenifnt et mt'niede cet article dePordonnanre, a la vigueur, h rintelligen ce, ^ I'inlrepiditc de M, lioiivie marchand Apoticaire, qui.merite d'auiant pliisdc JHuanges et de roconntiissnnces^ qu'il avoit h faire j^son Juge Ordinaire et miturel, k un liomme fort si^ii'itiu*!, s^avant et de grind credit, avec le- qnel 11 futnblig?, en presence de M. M. les Conseillers d'Etat^ non seule- ment dediscntoretsduleniria matiereen question, mais mfimc de maintenir I'honnenr des raarchands, Cc qui ne lui doit pas dtre pou glorioux et avanta- geux, ilafaitvrtiretjugerpar Nosseigneursdu Conseil, que quand il n'y ao- roit que lui, il n'est pas vrai ce qii'on ieur vouloit persuader que tou i les mar- cbands £(oient des ignn'rans, gens sans lecture, ni Istnguc Inline. Aussi Mr. Bouvie refut-il dnns cette audience niiiantd'applaudissementet de satisfaction que Mr. le Prcvdt ;' re^ut de chngrin etde mecontentement j car ilfiit obligfl de iTcourir k des chos?s plus fortes et pliw tnnch»nles qucT ses prieres et set raiions, n'ayant pas voulu se rendre h iTxemple que I'on lui doniia en plcin^ Conseil, que iV. te Chancellier de Silerg avoh bien voulu pour ne paa rompr* Pordrejudiciaire, proccder par devant les Juges et Consuls contre un Jardim nier, qui ^tdit en demeure de lui delivrer cinq oii six cens pldds d'arbre qull lui avoit vendiis; Enfin done notre Ordonnanee pour faire cesser ,tdus pretextes de Declara« toires et d'Appels, qui ne laissoient pas de s'interjetter journellement en cette matiere, pour arreter le» opiniatres, et convainere leu incredules, a voulu pat I*article4du 13 Titre, lever toute difficultly, disant &c. lb. p. se^eLirt? Chap. 20. Titre dela jurisdiction entre Artisans, "Ea France, mime aiiant notre Ordonnaiuxi les Juges et Consuls ont connu dM Proces cntre Artisans. Du F^il rapporte un Arrest du Parlement de Breta- t;ne du 18 Fevrier 157^^ par lequel il futdefendu aux Juges et Consuls de Mor> ais de s'entreraettrc d'aucun exerclcedejuiisdiction, aux Homines et Sqjets de proceder devant. eux, pour avoir connii une cause entre deux Boulangers ; jnais le Parlement fat oblige de se retracter, et lever ces defenses par autre Ar* rest du 8S Mars de la m£me annee. Un autre exemple que je m'en vas endon- ner, ei>t bien fort, entre Artisans dont le travail entre dans le Negoce et Coromer Ce, cela a de fortes raisons ; mais I'arrest que je vas rapporter fait Voir que la Cour ne fait p-is si etroitement cette distinctidn, la cause ^tant entre un Mar« brier et un Sculpteur, parceque les chosen que le Marbrier avoit fournies au Sculpteur, 6toit line esp^cc de marcliandise qui entroit dans Touvrage qu'il avoit entre^ris, les Consuls enfurentles Jugas. S'ilnese trouve pas b^au' toap d' Attest* inr cette matiere, c'est qu'eile n*a sani doite pte tonvent tti mis* Vol.1. ■-•'V • ■•• - IB' 17 180». . Poaca agmimtt MIIKLajOBB 18 • a :i I m li'i! 180d. POZKR mgain»t ■■IKLKJOUlf CASES IN HILARY TERM mil* en conle^tritlon, L't-sprro do I'nrrr't i\»f ji- voiis "li'ii* di- proiiii'tlre et^ qu'Adriaiie I'rc veuve dc Uaviil Tucquoiniii vivuiit Mui briL-r, qi i iivoii t'uuini quantity de Sculpliirrit qui cioienl cnin'Cii (l.iiifi uii otixri.gr < i eiiii'c|iii8'. voim- atraMe, qii'Ktirniie l»ireroiten(()uriie, ;:ii payement d'ieclle roi iniiiits par rorps, nonobilant opposition ou ap]iellntton quelroaqne, suns preiiullcf d'i' celleg. De ces sentences du Frev6t de Parit Adriuqe Pre s'etuni leadue ap* pellante coinme de Juge inconipflenl, la four par son Arr^it du 29 joni d'A- ouit 1665, mit Ies Appellatioiiti des Hentomes du Prev6t de Pariti au neant, eniendant, ordonnn que la Sentence dca Ji>);es et Coubuls sortituieat ell'et. et Coudamna le Hongre en Tamende de douze livres." lb p. Sfl8 Titre 17. " Afin de fa're cesser li's pluintes que Ies ndlres .Inpes. portent tous Ies joun en tons le reau n'ayant pas conipnru, il fut condaniiic par defaut le 31 ,)U(irs de iMars 1631. Pigoreau se pourvnt par devant !(■»> Aiidileurs des Causts it Conseil> lers au C'hAlelet, ou par Defaut olitenu coiitrc Dc la Vijrne, le mume De la Vigne cnmparut et cnnnentit 1'1 retention de la ciitisp, et proceda par dcvant lesditsSrs. Auditeurs, ce qui ei>t it reinarquer. La Ies pour: 'litcii I'ail.'saux Consuls furentd^claiii-s nulled, et De la Vi^'ue condaranc a rair.rnde, et ^ fournir, d.ins hiiilaine k Pigoreau laqniiititr des J!cmr> n:ci;i;(;i;nfi's cii ?rur niarche, dcniCme papier que Ies preuiien^s feuillcf, qu'il recoiii:(ii.-biii( avoir donnces pour niontrc, en pay:.nt par Pi»;ort'aii ; autrenicnt et le dit i. ii ps passe, seroit le marchfc rf solii, et De la Vigne condamnc par corps a rrniire la somme de quarante quatre livres sept sols, qu'ihivoit rc<,'u d'aN.intr, l/ap pel de part et d'alitre de cetie Srntcnri' I'ut poite an Pailenvnt de Paris, Ies Auditeurs ct Conseillers du Chfitelet, lenrs procnreurs et (ii". (tirr inu rvin- rent, demanderent que defl'enses futiseiK faitrs aux Jiiges et t.'oi.^tl^ tc pniu dre connoissance des causes personnelles <|ui n'excederoient pas vir.^t ciaq li< vres, ainsi Ics renvoyer par devant Ies dits Sieurs Anditeuis, a peine de nuU lit<, cassation de procedures, depens, doinmages et iiitrreis ; que I'Arrest qui interviendroit seroit public tons Ies ans ^ la prriiiiere audience apiOs rp- lectiun des nouveuux Jugcs et Consul:- : qu'il seroit perir^is nux dits Sieurs Auditeurs d'envoyer un de leurs procureurs aux Audiences des dits Jiigis et Consuls, pour vendiquer et deaiander te lienvoy des dites Causes, t et en cat de deny, appeller conime de Juges ineompetens. Les Jnges et Consuls inter-< Vinrent aussi de leur part, ct demanderent d'etre conserves dans '" droit de connoitre J es causes de JMarcliand a Marchand, conforii.emciit aux Ldits et Declarations du Roi ; et que detfen&es fusseut fuiles aux di(s Sieurs Andileurt d'en connoitre, de casser les Jugements et Ordunnar.ces des Juges et Consuls, d'intimider les Parties ui les lluissiers pour emp^cher des'y pourvoir, et d'y donner des AiS'gnations, k peine de nuUitc, depens donmiages et inter6ts &c, Sur letout est intervenu Arresl le It de Septembre I6'2*J, pur lequel la Cour feisant droit sur I'lntervention et Demundesdes Sieurs Auditeurs, Proeureurt et GreffierduChatelet, met les parties hors de Cour et de Proc(t>, a maiiitenu et gard^ les Juges et Consuls en la connuisi-unce des Cannes personnelles entre Marchands, et pour cause de IMarchandise ; et les dits Sieurs Auditeurs de tvutes cauies civiles ct penonneUes non excidaat viogt cinq livres une foi« pay*. t< «( ,\v pror.irilre fs* qi i iivoii I'ouin' fiiiri'liiis'. «-tiii«i- laiK IMglitrilfi lilt'., Ill uoiim-r u ('III- (I* la tit II ;,aii(lr. U- lion- iriii< riiiiiiiMie lie roi li;iiiits jiur ins prfjiulu'f d'i' ctuiii H'liduc ap- ttlu EOjtiiii ; assignation I'igo- 31 tours (le lUars Luusis tl Conseil- ic, le mfimc Vc la [oceda par dcvant ur;'.nieb faiL-saux riiiixiide, et k i!li<)i:i)'i-s cii ?rur :oiii:isi.-'«i>it avoir ft le dit I. i. |i8 ir corps a nniire d' _ dan*^ '" droit de mi lit aux Lditg et _ Sieurs Anditeuri Juges et Consuls, y pourvoir, et d'y ges et in(er6t« &c, par lequel la Cour tenis, Procurcuri 'roc< ti, a mainlenu persunnrU^s e ntro urs Aiidileurs dc uq liTrei une t'ole pay*. la IX Tllfi FIFTIETH YEAR OF GBORGP. III. « .yt, dr marrhandise prIviloKier, vendue en ^rot et en detail, autre que dfl \*.ire)i!iiiil Ik Mareliand. DeftVnse* aux dits Sieur» Audileurs et Cumuli de pronoiieer par riinsution dejugemens rendus, aiutl dCferttr aux App^llationl aU.t caadrs Ldits." 19 1810. -J y i( '<. I. •; 1 ■ V . ■^■i -j .'■ ;'• \J1tt>fi OaklbV agdinst Morro&h and DuNk. .tK IN this case, the plaintiff*, on the ist. day of tertn, obtain* d the permission of the court, to ditarhinc the defendants upon interrogatories on Jdits et arti. cles, and the defendants being ordered to attend oil the 8th. for that purpose, the defendant Dunn ap- peared and declined aasMrering the interrogatotiei* On the J3th, the cause being called, S'-uart^ for the plaintiflF, moved that the Jdits et articles should be taken pro con/esso^ when TVednndaji, Feb. Hth, Whether in n commercial ca- se, a party can, under the ex- isting law of Canada, exa- mine hisadver- lary on faU$ et artktei } :j n •>fl'J? !'■>! The Advocate GeneYal^ for the defendant Dunn, opposed the motion, stating, aj the ground of the objection to answer, on the pan of Dunn, that the Prov, Ord. 95 Geo. 3. c. s. s. 10. which declares* •• that in proof of all facts, concerning commercial ** matters, recourse shall be had to tht: rules of evi. " dence laid down by the laws of England," had done away, in commercial caseSf the right, which^ previous to the passing of that Ordinance^ a party bad, in all cases by the ancient law of the eountryi to examine his adversary on Jaits et articles. That the Ordinance having introduced the English rules of evidence, generally, in all commercial cases, of which description this action was, the plaintiff could only proceed according to those rules, which did not admit of any suca examination as that for which the plaintiff noVr contended. . , . i v Stuart, for the plaintiff, observed, that in com* mercial cases the construction given to the 10th sec- tion of the Ordinance, relied oa by the defendant, B 2 had 10 1810. Oak LEY agnintt Moimocii Rnd DvMlft CASES IN mtARV TEAM had always been, that an exsmioation upofi/<3(^5 ei artitUi waa adiniiaible, and this had been constant- ly recognized in practice; without it, justice could not be administered in this country, as it was the only manner in which a party could obtain the be- nefit of an examination of bis opponent; the right to which was recognized and allowed by the practice and common law of the whole world. That the Or- dinance had introduced the Knj^lishtrules of evidence in commercial cases, to which, such an examination as that contended for, was known; th<> only diffe- rence, here and in England, was in the mode of obtaining it] in England, the party must file his bill in Chancery, but here, he may file interrogatories. He said, there could be no doubt that the powers and functions of the Courts in England, as making one entire system, were all vested in the Court of King's Bench in Canada, it being the only court in the country to which a plaintiflF could have recourse. The case stood over untill this day, when the de- fendant Dunn declared he was ready to answer the interrogatories, and he was examined by consent. The point was not therefore decided by the court, but they intimated their opinion so strongly, that the objection urged in this case by the defendant has not since been raised, and the parties in several in- stances have been examined on Jaiti et articles in commercial cases. i y\ Wedntiiaif, Feb, Uth. The lessee of ft property ,iei- xed and adver- tised for sale by the Sheriff, cannot, by op- position o/rn ca»r, ihry require ut to Mg*iHii make I he C')n«ini»a ion ot «heir lease a comiuionof and ihesalc} this, however, is op(o»ed by the teizing P*ovx«nd creditor, and as it is lo, it is plain that (hecunclu- Op-^"^' lions of the opposition, which go to this point solely, cannot be granted. ,^ .. I I, ' ^ ^ Per Curiantf ^' Let the opposition be dismissed with costi. ■/ O' t'V M 1 ' Bakir agaimt Young and another. Friday, F»b. ^ ^ Several Opposanti, No motion, HpHE plaintiff sued out exrcution aeain.st the for an order to ■_.«', .. % • % ■ rciHi r, vchch had JranTeS.SSim '^'5" f^X **'™ "old and adjudged to Mrs. Chuiian notice thrreof AinsHt Youug^ but that the purchase money had tothtl^Sdi^ not been paid; the Sheriff also leturned and filed, ttirt. Krith the writ of Fieri Facias, several oppo&itions d Jin de conscrver^ on the part of different creditors of the defendants. By the Prov. Stat. 41, Geo, 3, c. 7. j. 14, it is enacted, " that whenever it shall appear to th« *' Court, by the return of the Sheriff, that the pur- •* chaser or Adjudicataire of any real property seiz« ** tid and sold by the Sheriff, shall refuse or neglect " to pay the amount of his said purchase, in con- " formity to the terms and conditions of sale, the ** said court is hereby autiio. •. ,- upon morion of *• the plaintiff prosecuting he **:.,, . of tht ucten- " daiit, or of any Oppoiam^ 10 order and adjudge, t[ that the Sheriff do proceed de novo, to sell the said fi ■-* ler. gainst the red in thia had srized which had Chiitian onry had and filed, )o.sitions d reditors of 14, it IS ar to ths \i the pur- erty sciz* or neglect e, in con- f sale, the nraorion of ;h«. ucten* adjudge, sell the " said IN THE r.iTiF.Tri yeah or neoRnE iii. «• sairl real oroDfrty at the folte enchere of colli ind *• ch;*ri;r» of ih; Jiaid purchaser or Adjudicairt,** Under this Statitei Bowen^ for certain of ih^ op* p<)\anti, now tuovcd, rh«t the mkI real property, 10 fuld .mil iidjud^cd by the Sheritf, ihoild, by an ordiT t)f this Court, h* reiold ' v him, at 'he folU ench^rc, corns and tuirges ol ihe 4djudicalairt Christian Aimltr Yinin], r« wh ch order, he contend- ed, a P'lriy MT.is eiiti'lei, upon motion, without ptcviotM notice to, or a rule on, the Adjudicataire to sh'w came, th? aame not being required by the Statute; the Adjuiicafaire, in th" preient inr, after stating the seizure by the Sheriff of the Distilie'y at B:;ajport, atid the ad.etisinj:; of the same for snle on a pjrticular day, B'ackwood alleged, th^.t 01 'he day IiKed for th^ said srfL', he did laivfiiUy hid and become an enckeris' seur ( f ihe f«aid Di^'tiilery and premisses and after fcvertil b ddings ar.d encheres did thtn and th:re be- come, ai d yet remained, 'he list and highest bid- der, or dernier et plus hant enchcrisseur, thi-rcof, for the price or sum of £3050, and did then and there become entitled to be the Adjudicataire of the said Distilleiy and pivmissey, and to have, hold, and enjoy, the same as his own piop-rty, paying therefor the said \a^\. mentioned sum of mo- ney; but that the defendants on th: said day of sale, without any good and sufficient reason whatever, and contrary to law, filed an opposiiion in the hands of the Sheriff, formally pjoh:biting .ind opposing, under divers false and erroneous suppositions and pretences, the adjudication of the s^iid Distillery, &c, &o sold as aforesaid to him (Blackwood,) by reason of which opposiiion the Sheriff did not then, nor had he at any time since, adjudged to him the Sdid Distillery, &c. as he was bound to do, and there- fore he concluded, first, Thit the opposition of the defendants should be declared in all things null and void, and dismissed with costs ; and secondly, that the 1810. Bakck You!«K and diiother. iini' Blackwood laieivg. 28 CASES IN HILARY TERM 1810. Bakf.r apainst YouNr. and another. and the SheriflFshould be ordered and directed to make a good and sufficient title to him (Blackwood) of the said Distillery, &c* upon his paying the said sum of £3050, &c. &c. To this petition a ger>eral answer was filed by the Blackwood defendants and opposants-yown^" and Ainslie. and tne parties being at issue were heard upon the merits of the Petition. Bowen^ in support of the petition, contended, thai the opposition of the defendants to the adjudi* cation, upon the grounds of a want of bidders, and of the premisses being of greater value than the sum bid by Blackwood, was no opposition in law, and that the Sheriff ought not to have received ii at the moment of the sale, as by the Prov. Stat. 41 Geo. 3. c. 7. s. 11. the same should have been no ified to him fifteen days previous to the sale; that in the present instance the defendants had taken upon themselves to fix ihe value of the premisses, and thereby prevent the execution hnd effect of the King's writ, and if such an intt^rference could be allowed, a similar opposition might be made by the defendants to the execution of any subsequent writ, and so ad infinitum, and the ends of justice defeated. That the day fixed by the Sheriff for the sale of pro- perty taken in execution was peremptory, and the sale could not be poiht not to have been attended to by the ShMiff, h;; iho ild have c osed the sale, on the d .y by him fix.d, and rdjudged the premisses lo the then h gh;st biddei, Blackwood, who WdS entitled to the pciiormance of the Sheriffs eugagemi nt ; and inabuiurh as the Sheriff had omitted to do what ckarly hj ought to have done, the Court would consider it as done, and give the proper effect to it, by ordering the ShcufF to execute a title in favor of Blackwood, Borgia^ against ihe Petition, contended that thtS opposicion of the defendants was, whrit, under the ancint law of the coautiy, was termed a Reqiiiii* toire^ and was not one oi those mentioned in the Prov, Stat, 41 Geo. 3. c. 7. s. 11. the provisions of which did not reach it. That by tha prov. Ord, 85 Geo 3. c, 2. the Sheriff was placed in ih same situation m the Court stood, 1 nder the ancient law, in the adjudication of property, inasmuch as it was therein declared, that the sale by the ShtriOF houid have the ;iame force and effect as the decret by the Court. By the ancient law the bidder was bound by his bidding, but not the por&on seling, nor the Court, nor as in ilii.scase, the Sheriff, until the pro^ pcrty is adjudged, which is an accc ptancf of the bidding; and inasmuch a» the Sheriff, in the pre- sent case, did not adjudge, there hsd been no accep- tance of the bidding on his part, and ;he petition of Blackwood ought therefore to b. dismissed, unless a poi^itive authority could be produced to shew, that the ancient law of Canada, in this respect, had been abrogated, which he dnied, nor was the right of a; remise d'enchcre^ which the Judgt, under the an^ cient law, granted ex offiuo, or al the requisition of IN THE FIFTIETH YEAR OF GEORfiE HI. ?t' 3t on? of ihe part'es, whe.i the sum bid for the proper- ly did no' ;ip»»^')ich if» real val :e. in th^ least chinj»« ed, and lie cited DnpUsm^ i Vol. Fp, i6, book 5. c, 6. «• de I' Adjudication,*' isio. tiitervg. Uaktr YouNO ind air.i'licr. iirid The Advocate General for the plaintiff, said thaf no B' ^cxwooo odium could attach to the oi)posants,as the proceei- ings adopted by them were cnlc'ilated for thr betiefie of their creditors, Si. of all concerned, by preventing the sacrifice of a valuable oroperty : he asked whe- ihcr it WTS not competent to the plaintiff to stopth;? salp, and flic effect of the writ of execution, though the'e we-e b'ddin s, by declaring that the debr. tor the piymf-nt of which the property hid b-en rciz d, was sflii'fied ; he contended that the plainulf h^d such a right, and in the p'esent case the olaintiff had been so f^r satisfied, that he had acqu'esced in the opposition of 'h:? defi-ndants, and consented lo a remise of the sale for beneficial purposes, Bowcn, in reply, denied \ht light to c'aiui a re% TOZif ofa Sheriff's sah under the txiitiug Uw, it having bcerj doneaway by the P.ov. Ord. 23. Geo, g. c. 2 whuh gave no power to th^ Shenfl lu post- pone the salt-, he however admiued, that the casi would have been different, and would have afford. ed some coloui for postponing ihe sale, if before the property hid been set up, the consent to post, pone had b^en given for want of bidders ; but th2 property having been put up, thj bidder Black-wood had acquned a right, which nu consent of ih: plain- tiff and dcfcudaiits could take away : but if such cuu- sent could avail, siiil (here were other creditor^ of the defendants who were opposaniSf and who ought to have been considered as saisissants equally with the plaintiff, and who»e consent had not bc>^nob;ain« cd; As to the allegation of the defendants that the piopc^riy in question was worth moie than the sum bid, he said, the sum which had been off^L red by Blackwood, ought to have b^en considered as the true value of the premisses, no person having offered a higher sum. The 32 if if mi aw 1810. U.iKr.a against YouNO »iid aooilier. niul BliAckWOOD Inter Tg. CASES IN HILARY TERM The case stood over until this day for (he opiniofi of the Court which was now delivcrrd as follows t Sewell, Ch. J, Upon a Fi. Fa. the ShetiflF in this catise takes in execution, at the suit of the plaintiff' Baker^ a valuable distillery, and oth<:r inimovable property, belonging to the defendants, situate at Beauport in this District, he proceeds to the sale in ths usual manner upon a Ve7i. Ex. and there are three bidders, of which the lajt if. Blackwood^ the inter- vening party, but his bidding being no more than £^3050, (he defendants oppose (he .sale, or raiher the adjudication, (with the plaintiff's consent,) opon the ground that the price offered is very greatly below the fair valueof the premisses. This opposition the SheriflF admits, discontinues the sale, and tnakvs a special return of hi5 proceedings, in which hcft.itcs. **That the adjudication did not take place by reason of the defendants opposition." Upon this return Black-- xuood has filed a petition in Intervention, by which he prays, that the property may be declared to be his, and that the Sheriff may be otdered to execute a title in his favor. The prayer of this Petition is the matter in dispute. On the part of Blackwood, it is contended^ that the opposition of the defendants was and is a nullity, and that upon the face of the return it is evident that the sale was perfected, that three biddings were made, and that h?, being ehe last and highest bidder, is the ieg-il Adjudicataire^ and so entitled to ihe property. On the oth.'r side, that the opposition was a legal and sufficient caustf to break o£F the »ale, that the sale was not perfected, and that Blackwood consequently is not the Adjudim cataire. There are thus two questions before us^ ast. whether the opposition was or was not a suffi- cient cause to stay (he proceedings? and if it was not, then, 2dly whether Blackwood be or be not the Adjudiialaire of (he property ? All opposition* to a tale by decret mast be made befor* In THB FIFTliiTH YEAR OF G£ORG£ III. 33 le opiniofl > follows t ;ri(f in this le plaintiff' removable situate at he sale in there are , the inter- more than raiher the ) upon the below the the Sheriff s a special tcs. ''That on of the irn Black" by which ared to be to execute 'etition is onicuded^ was and of the cted, that bein^ the uJicatairef >ih.'r side, icnt cause perfected) e Adjudim before u8« at a suffi* t if it was le not the ; be made befort 1810. ■m Bakbr ttf!ain$t YoDNo and another. and before it commences ; (a) and so extensively true it thi.H principle, that where the sale has once begun even satisfaction of the execution, by the payment of debt and costs, is held not to be a sufficient cause to stay the sale, if there be any oppositions afi de comerver. (b) Upon this ground, and upon the 3lackwoo» ground that the want of a sufficient consideration, " "^^' (la viliti du prix) cannot in any instance impeach an adjudication, (c) I am clearly of opinion that the opposition, or rather the piote.si of the defendant, was not a legal cau^e to stay the proceedings, and that the Sheriff was not bound to notict: it, notwith« standing the plaintiff's consent, the plaintiff being but one among m^ny creditors who were equally parties to the suit, by oppositions afin de comerver^ whose consetit to stay the proceedings was at least equally necessary, and was not given. The incjuiry is thus reduced to the single question^ whether Blackwood , under all the circumstances, can legally be held to be the Adjudicataire ? and I think he cannot. The manner in which the Sheriff is to make Sale of immoveable property, taken in execu- tion, is nut at all prescribed by the Ord. 17. Geo* 3. c. a. or 25 Geo. 3. c. a. but by universal con- struction, it has been held) in all the courts of the province, that these statutes intended a sale by licim tation^ as was practised before the conquest, a venti publique by bidding in the course of a common auc^ tion ; it follows then« that the last and highest bid- der must be the purchaser, for that is the principle of all such sales, but it follows also, that the high* est bidder cannot be ascertained, until the close of the sale} and this of itself implies the necessity of some formal intimation of that close. The Sheriff is intrusted to make the sale, and no time is prescrib- ed by law within which it mu&t be terminated; (a) Ord. 25 Geo, 3 c. 8. 8. 10. . Cc) lb. V. 6. p. VOL. I. , . .(6) L. C. Denizart, V. 6. p. 690. No. 4. 57. Ar. 6. Jud. M. S, S. C the 31 CASES IN HILARY TERM 1 B t K I. R afffiirtit Young and aoo'her. nnd 1810. the duration therefore of the sale is thus left to his diacrecion,and it cannot be closed without his a.vsrnt ; the property also, which is sold by the SherilF, (or rather of which he makes sale,) is not transferred by him to the purchaser, (for it is neither equitably nor Black WOOD legally bis,) but bv the acts which he is directed and ' ■* empowered to peifoi m ; among which is the act of licilaiion, which mujr, ai well as the rest, be complete, and therefore must be perfected by the usual method of terminating the period forbidding, by the fall of the hammer, or by some act equivalent to it, by which, (to that intent) the assent of him who makes the sale is declared. In point of fact then, it is im- possible to say, who is the last and highest bidder at such a sale, before it is closed, and if it is inter* rupted, and not resumed, the last bidder at the mo- ment of such interruption, cannot legally be said to be (he Adjudicataire, as it is impo»sible to say who would have been the last and highest bidder, if the sale had continued. For these reason*^, U being cleat that the sale in this case was not closed, I am of o« pinion that the intervening party Blackwood is not the Adjudicataire, and that this Petition must there- fore be dismissed* Williams, J. I con^^u? entirely in the o- pinion given by the Chief justice. The Provincial Ordinance declares, that the sale by the Sheriff shall have the force and efiPect of the decret, under the frenchlaw ; but in this case there has been no fate ; if the Sheriff has done wrong the parties must look to him. It is to be lamented the ordinance does not go the length to authorise the Sheriff to postpone the sale, but it is wholly silent on that point, Kerr, J. The que^ition, submitted to our deci- siud by the petition and answer, lies in a very nar- tow compass ; if there was a sale by the Sheriff, the prayer of ihe petition must be granted ; if not, ic must be dismis&ed. When the petition was first pre- sent iV TUB FIFriETH YEAR OF OEORQE III. 85 1810 Bamimi againtl You NO lad another. und srnted, I was of opinion ir should not be recei^ ^, as the return of ths writ of Ven^ Ex. has not stateJ, that any «ale had been nnade ; I then thought «re Could grant the petitioner no relief, and this proceed- ing therefore ought not to be grafted on the original c^u»e; I am not now induced to alter my opinion, ^Y^''7c°'* By (he Sheriff'^ return, it appears the property ne- ver was adjudged at all, it is a solecism in language to say that there w»s a sale, wIk'u thi lot n^ver was knocked down and adjudged ; the knocking down of the hammer is a ceremony used ia all public sales by a iction, it is this symbol which publicly declares who is the highest bid:!er, and that the property is traisf-irred by the seller to thi buyer. It has been co.-)tended that th^ Sheriff engaged in hii> public ad- vertisement to sell to the highest bidder, and that the petitioner b-ing sUch, h^ was bound to knock down the lot to him, and this is urged as a ground for our decree to convey the property lo the Peti- tioner, on the payment of (he highest price offered ; but because the officer of (his Court has aot, in all things, acted in obedience to the writ of execution^ is this a reason for the court to order a sale to takd effect, when there wa« no sale ? It is a fallacy to say that ths petitioner was the highest bidder, he was so in one sense, and not in another, he was the highest bidder at the moment th? sale was suspended, not at the tira6 it was completed, for the solemnity never took place, by which the sellers assent to the sale was made manifest; how does the court know that £ 3050, was the iummum pretium that vrould have been given, if the sale had been kept open ? If the opposition had not been givtn to the Sheriff, and the sale had gone on for a minute lo.iger, the pro- perty might have produced, a much largei* sum. It is impossible on any grounds of law or of justice to (he many persons intetested in this suit that thd pray* cr of this petition can be granted* Petition in intervention disoliiised with costs. C g> GUAT •: h ti fl iii II;' y 8S DamofCHi for ih« lion - per- forntnnce of n ipccial ag;rc<*< lnt*nt, for thi: triin«portntinii ofKoo(l9,wli(>re a part linn licfii transported, delivcrrd, unA acr.rpletl, ran- not lir plriid- n\ iiKainst nil •ctioii on a quantum mrni' U for frc'iKhl earnfd, upon •uch part no delivered nnd acreptfd. The party muRt in« ttltute u croAi tlemnmle, or a (cpi'i rale action for such dainu< CA5?,S \S IULARV TBflM GuAY against FIuntbri. THE declaration, in this cause, contained two counts, the first, setting forth, thit the defend- ants were indebted to the plaintitF. in the turn of £ 15, for the freight of 109 batrcis of pot-ri»h, lie- longing to the defendants and brought from St. Roc to Quebec, in the plaintifF's ichooner, in the month of May last, and delivered to, and accepted by, the defendants at Quebec; in consideration of which, the defendants undertook and promised to pay &c. The second count, quantum meruit* The defence set up to this action by the defend* ants, was, that by a written agreement entered in- to between the parties, the plaintiiF had engaged to go down with his vessel to St. Roc, and there lake on board 164 barrels and 5 puncheons of pot-ash and bring and deliver (he same to the defendants at Qoebec, for which, he was to be paid by the de« fendants twenty five pounds. That the plaintiff did not take on board his said vessel, or bring up to Quebec, the quantity of barrels stipulated in the •aid agreement ; but had only brought up and de- livered to the defendants, 109 barrels; whereby the defendants had suffered damage to the amount of jf 17 : 5 : and that the defendants had already paid £5. to the plaintiff on account, so that there was now due to him the sum of £^ : 10. only which the defendants tendered and deposited in Court. At the enquSte, it was proved on the part of the plaintiff, that he did in fact bring up and deliver to the defendants, at Quebec, the quantity of 109 bar- rels of Pot Ash, which were received by the defen- dants. On the part of the defendants, the written agreement entered into by the parties, the non-per- formance thereof by the plaintiff, and the expenco the defendants had incurred in procuring another vend to bring up the Pot Ash left by the plaintiff at IN Tiri'. HFTIRIH YRAH OF OROWfJP. III. at Sc. Ror, were provcff. The plainlifF admitted that hi had received 5). on account. At the h:aring, Vanfelion, for the plaintiff, said he relird on the tecond count in the drclaration, un« d«r which, thr plaintiff was entitled to recover freight for the quantity of barrels delivered by him 10 the defendants. That the damag.^i*, which the defen- dants had set forih in ihcir plea could not be award, ed to them, under the issue raised between the par« ties, inasmuch as daniagea were not speci6cally claimed, and the Court could not grant ultra prtitai that if any damages had been tuffeied, or could be claimed, by the defendants, they conid only be made the subject matter of an incidental crosi dcmandt which the defendants had not set up. Stuart ^ for the defendants, contended that the plaintiff ought to have brought his action upon the special agreement, implied promisses could only be raised where there are no express promisses, but supposing that a general indebitatus aaumpsit lay in the present instance, the only principle upon which it could be supported, was the general one, quod nemo debet alleriut detrimento locupletari : the plea, therefore, and the evidence, in this cause, met the very gist of the plaintiff's action, they shew that the plaintiff did not deserve to have of the defen- dants the sum demanded by the declaration, but on- ly the sum tendered, being £% : io> An incidental demand would have beeft necessary, if the action had been any other than a general indebitatus as* sumpsit I and it was not now competent t« the plain- tiff, to object to the subject matter of the plea, as he had answered it, and proof had been, in conse- quence, ordered thereon. The Court took time to consider the case; and on this day, the Chief Justicb delivered the opi- nion of the Court, as follows : C 3 Th8 87 1810. (1 II A Y IIllNTlKl* , I ■■iSl^mu^;AA stitute the ground orjonh of the pfaintiff's demande ; and for the purposes of this distinction, the word dem fense h nitA \i\ di second and limited sense; a nega- tive plea being called a ** defense aujonds^' because it impeaches or denies the ground or fonds of the plaintifPs demande setforth in his declaration, in opposition to an affirmative plea which is called an exception, (from the latin excipere to exclude^ be-, cause it does not impeach or deny the ground or fonds of the plaintiff's demande, setforth in bis de- claration, but alleges, and relies entirely upon, one or more new matters as cause why the plaintiff's suit ahould be delayed or dismissed, and hence the ma- xim Reus excipiendo Jit actor, (n n) (ft) Uthvol. Repertoire 8vo. p. 78. Code Ci\ile Tit. 2d. Art, 1st. (0 14. vol. Repertoire p. 78. and 17. Vol. p. 47& Verbo Demande. L. C. Denizart, Verbo Conclusions Vol. 5. p. 83. No. 2 (w) 14 Vol. Repertoire, 8vo, p. 77. 78. 1. Pigeau, 399. 400. (n) Henneccius Elementa Jnr. Civ. p. 395. Tit. IS. Art. 1277. Hennec- ciusin Pandectas part 2 8. 32. 7. Potliier, 4to. 14. Dela Janneys, Vol. 11. p. 406. Tit. 29. Art. 629. L. C. Denizart, Vol. 8. p. 166. Verbo, Ex. cep^ions. Sec. 1. No. 1. 1. Pigeau. 150. Joiisse, idee de la Justice Civile Tit. 3. part. 2. Sec. 1. Art. 5, page 63. Erskiness Institutes, p. 663. (nn) Repert. «vo. Vol. 4. p. 363. Jud. M. S. S. The IN THE FIFTIETH YEAR OF GEORGE 111. 45 1810. The only remaining pleadings permitted by the hw of Canada, are Amwers and Replications, ihe p^^^, pleading which is put in by a plamtifl', in answer lo agaitnt an affifmative plea filed by a defendant being an plaintiflp harh, or h ith not, a right of action ; (x) and thsrefore, fins de non proceder do not pray, *' that the acnon may b^* dismissed;" but, "that the " writ and process a^ respondendum, and the deciara- ''* tion, and each of them, be declared null and of *• no efF.'Ct whatever," or, "that all proceedings be *' staid until ScC." according to the legal import^ and effect of the matter pleaded, (y) Fins de non proceder are divided into three classes relating, tf/. To the jurisdiction of the court. 2dly, To the form of the proceedings* '^dly. To some exemption from the common obli* gation to answer, to which the defendant is entitled* The defendant therefore may show, that he is not by law bound to answer to the demande of the plaintiff in bis declaration contained, by pleading, ist. That by reason of some matter, which he (the defendant) alleges and sets forth, ** The Court by law (* cannot proceed in the cause, nor cotnpel him to ** answer in any manner' unto the demande^ nor in ** any way takecognizanceof the action of the plain- «* if any he hath &c," (z) for -want of jurisdiction i and this is the Exception Declinatoire, (a) (w) Serpileon p. 54. N6te 2 (a) lb. p. 54 Note 2d. (jf) Rules and orders, p. 836. 1. Pigeau 16^. (i) Rules and Orders, p. 234 (a) L. C. Denlzart Vol. 8. p. 638. Verbo Fins de non proceder. Sec. 9. 7. Pothier, 17 Jousse C. C. Vol. 2. p. 188. Repertoire. Vtrbo Fin, Vol. 25. 8vo. p. 62. SerptUcib p. 54. n.2. Jud. M. i. ». . • idly. 47 \-, 1810. FORBEI against AxKINaUN. ■iil M 48 1810. FORDES Atkinson* ; * CASES IN HILAUY TERM idly. That by reason of some impfrfect'wu de fecit or wani of form^ in the proceedings, as in ihc writ or declaration, which he specifically set.sforth, and of some law rule or order, which he also scfsfouh, " the Court cannot proceed in the cause nor compel ** him to answer, in any manner, unto the demande" because the proceedings are nuUi and this is the £x- ctption a ia forme, (b) ^dly. That by reason of some matter which he al- leges and sets out, " the court cannot, at this time, '* proceed in the cause, nor compel him to answer ^' in any manner unto the demande" because the mat* ter so pleaded is such, as entitles the defendant, at this time by law, to an exemption from th? common obligation to answer; and this is the Exception dilam toire, (c) When Fim de non prociderare allowed, the Instant ce or suit is either suspended until the Court has authority to proceed, and to compel an answer, or the writ and process ad respondendum^ and the de- claration are declared to be null and of noeffect ; the defendant in the latter case being discharged or dismissed out of Couit, and the plaintiff obliged to sue out a new process ad respondendum', but when they are overruled as frivolous, the defendant, with- in the time limited by the practice of the court, is bound** to answer to the p!ainti£F of the demande ** contained in his declaration," by a plea to the acm tion, of which we will now enquire, (d) As that is a preliminary plea, or^n de non proce* der, which questions the authority of the court to compel an answer, and does not put in issue the right (ft) Roles and Orders, p. 236. Juusse C. C. Vol. l.p. 18S. L. C. D«ni. tart, Verbo, Fins de non proceder S. 2. Vol. 8. p. 638, Repertoire, Verbo, Fin. Vol. 85, 8vo. p. 62. 1 Pothier, 15..... (c) L. C. Denizart, Vol. 9. p. 938. Verbo Fins de non proefderS. I. and 2. Repertoire, Verbo, Fin, vol. t6. 8vo. p. 62. T. Pothier 16. Jud. M. S. S. (d) Rules and Orders, Sec. 1. Alt. 8. and 9. p. 68, 69. of [, dcftci^ the writ rth. and r compel emandct i the Bx- ich he al- thii time, to answer e ihe mat- endant, at z common fption dildm the Jnstdri' ! Court has answer, or nd the de- > effect; the jcharged or obliged to but when idant, with- jC court, 18 ;he demande a to the ac- ie non proce* Ihe court to |ae the right 118%. L. C. Oeni- Ipertoire, Verbo, |izart, Vol. S. p. Terbo, Fin, *ol. Orders, Sec. 1. ix THE FIFTIETH YEAR OF GEOHGE III. br action ns it respects either the parties to the suiti or the subject matter of the suit; so, e convenor a plea to the action is that which doci put in issue the tight of action as it respects the parties, or the ;iub* jc-ct matt<'r of the stiit, and does not question the au* thority of the Court ih any manner. The right of action is pui in issue by a negative plea, denying the case, stated in the declaration, in point of fact, or, in point of law ; and all such pleas are *' De femes aufondi ;" for as they contest the very ground or fonds of the plaintiff's demande, by deny* ing the truth of the facts setforth in his declaration, br the validity of the law which he avers to be the result of the facts setforth; they are distinguished from the aggregate of pleas, which is implied by the word Defeme in its general acceptation, and front all other pleas, by the particular descriptive title of *' De/emeA au fonds, (e) The right of action is also put in issue by ahy af- firmative plea, which setsforth and pleads any mat- ter relating either to the parties, or to the subject of the suit, which of itself is sufHcienc in law to autho- rise a judgment for the defendant, notwithstanding the facts setforth in the declaration of the plaintiff; and all such pleas, for the reasons before given arc Exceptions ; (J) but as exceptions of this kind havo a tendency in laxJD to bar the pidintiff's action for ever, br to abate it, until the disability, of other effect of ihe matter pleaded, shall be removed, they are dis* tinguiihed from that class of £xceptions, which un« der the title of preliminary pleas, or Jim de nonprdm cedet, tend merely to show, that the defendant is not bound to answer; by the diescriptive title of" £x* ceptions peremptoires en droit ;" the Word peremptoire (from the latin perimere to destroy) being used to express their legal effect* {g) It is obvious that a defendant can have but lyrct 49 1810. againtt \ J. •11 \ '• -•f ^,', (e) 7. Pothier, 14. . Vol* u .(/) Vide Ante.p. .(f) 1. Boruler, S». I, Pigeau, 161. Jud. MSS. D iouices ' I eA tASF5 1\ IIILMIY If KM 1810. sources of defence, his own strrngfh, »rdihey,'cakd jf^^^fl ness of his adversary ; and con! **^_El**D*>ff of what is *neant to be proved, and there - • ' V "by eriaBle him'to deny what 7s alleged, or to aver /Ciu^ •jcca/ ' %0 ^^^ matter in answer to it, and to como prepared is, tipon m wh»ch» ,e \o the cat lo the rts oftlic ciency of iraiion, iii rely to '^* an, and is jI that mat- to support of the fact, ch pl«a*» *o vith lespert u> probandi ndt must be declaration, t neccsjanly place, per- ,t, the facts, benf fit him, Jourt in evi- jrinci^lesLof onlyshould fartfc inuj t flaieThc law, [ing the facti ,d to apprise I l, andjhere- i„7 or lo aver ,010 prepared 5 5with IN TUP rilTIKTir M'All 01- OF.OHOP. III. iriih proof, according to the exigencies of the case. (//) PIrai of " n?r fl'i /nn'/t" are dividcl into two cla«sc. ^af 1 (r) 1. Putkier, J4C (s) 1. Plgeau, 165. Jud, .Ml^ti. D 3 art ill. S4 ISIO. Forbes agaimt Atkiniok. CASES IN IlILAllY TERM are Fins de non valoir in which the matter setforth necessarily admits and confesses the case stated ia the declaration, but avoids or discharges it, for the present, or for ever, and is therefore suflicient in lav^ to authorise a judgment in the defendant's favor dis- missing the plaintiffs action ; as where the defendant pleads ** Term for payment unexpired, " which is an exception pertmptoire en droii temporaire, or pleads " Accord and satisfaction," or *^chose jugee" [res ju- dicata) which are exceptions peremptoires en droit per* feeuelleSf and such Exceptions are denominated "Fins •* de non valoir," because the matter, \yrhich they plead, shows, that although the plaintiff m^y have a legal cause of action hereafter, or heretofore had a legal cause oF action, yet, that he cmnot now aivail himself of it, {t) Fins de non recevoiVt and Fins de non valoir, arc thus sometimes, in their effect, perpetual, sometimes temporary: but the classes of exceptions peremptoire^ en droit perpetuelles, and exceptions peremptoires ej} droit temporaires, comprehend the entire list of Ftns de non recevoir and Fins de non valoir, and the two latter ate therefore subdivisions, only, of th? two former. To pleas of Defenses au fonds en droits or enjait, because they are negative pleas and take issue, nOr thing can be offered on the part of the plaintiff but a general replication, (u) by which the issue being completed, the pleadings are concluded. But to pleas of e}(ception, because they are affirmative pleat^. ings, and tender an issue, the plaintiff must put in an answer, which is either general or special. A general answer takes issue upon the matter of the exception, by a general denegation ; [v) and (/) I Bornirr, 39... .('0 Rules and Orders, 231. (i) Kulcsand Orders, 'Z'iO, 222, 221. Jud, MfsS. such issue, nOr IN' THE FIFTIETH YEAR, OF GEORGE III. '<« such general answer completes the issue, and con- isio. sequenily concludes the pleadings ; (w) buta spe- f^^bes Cial answer tendeis a newr issue by setting forth fresh agaimt matter in answer to the matter of the exception, which AiK>»»9Mt is sufficient to destroy it, and in such case, the ivsue is completed, by a ganeral Replication, on the part of the defendant, to such special answer, (x) the l^egislature having forbid the use of all further plestd* The principles which J have stated decide the pre&ent case. The declaration demands of the defendant a large 9um of money, for the sale and delivery of 4 quantity of tiuiber, under a special contract in writ* ing. To this, the defendant has filed a plea which he >!'% intituled a Defense au/onds en lait^ in which he /ii ids specially : tst. That he is not indebted, does not owe, and did not undertake, as in the declaration is alleged, adly. That he has not failed, or made default, ia the peiformance of the agreement declared on, grdly. That no greater quantity of pine timber, than that expressed in the agreement, has been deli* yered, to or received) by him. 4thly. That he has paid in part for the 2O,00O feet of pine and 6700 Staves delivered, and 5thly. That he made a tender of the balance due which the plaintiff had refused before the insti(utioa pf the action. ^ (w) Rules and Orders, Sec. 7, Art. 1, p. 73 (.r) lb. 389. Ci/) Ord. S5, Geo, 3, c 2, 1. 13. Jiid. Vt>ii. D 4 Ql fl t J 'is S6 '!% 1810. Forbes against Atkinson. M I I CASES IN HILARY TERM Of these answers to the declaration, three, vis % the I8t« 2d. anf' 3d. amount to the Defense aufondi enfait^ and to no more. They are merely negative, They deny the allegations of the declaratioij, and disalBrin the very matter which the plaintiff, on the gentral issue wouli be bound to prove, in the first instance, in support of his action ; and a^ this is all that they do, they ought to have been pleaded generally, in the form prescri]|ied by the Rules and orders for the defense aujonds en fait, A defend- ant c^ODpt be permitted to plead specially that which amounts tp pp mor^ tj^an a tptal denial of the charge. Of the remaining answers, one alleges payment, and the other a tender or off'res. Now a plea of pay* nient is a perpetual Exception peremptoire en droit i (2} it is so, because it does not impeach, or deny, the groond orfoids of the plaintiff's demande^ but 011 the contrary admits a cause of action, and discharges it by new matter, 'v^hich is not stated in the Declaiation^ and which consequently it sets out, that new matter being a legal " j5n de non valoir,'* To plead payment of a debt and at the same time to deny its existence is inconsistent ; payment, therefore, ought not tq have been pleaded, by way of Defense aufondi, but by way oi Exception in the form of the perpetual Exception peremptoire en d^oit prescribed by the Rules and Orders. And the tender, or offres, for the balance, which is alleged, ought tp have been pleaded in the same manner, because an offre valable^ or tender validly made, is in law equivalent to pay-' inent. (a) I'he plea therefore is entirely defective. The defendant by pleading payment, and tender^ by way of Defense au nds, deprived the plaintiffs of the benefit of putting in *' an answer" to the newr ^natter of his plea, to which they were entitled, and (z) 1 Pigeau, 203 ; 1 Boinier, 39 ; 2 Argon, 473 ; 2 Domat, 230 (a) 1 Potbier, ObligatiooB, Mo. 513, Jud. JMSi!. drove IN THE FIFTIETH YEAR OF GEORGE 111. drove them to the necessity (if they noticed the plea at all) of filing a general Replication, that being the only pleading to a Defense an fonds enjait permitted by the Rules, (h) On the other hand, the plaintiffs, instead of taking advantage of the defendant's mis* conduct^ as they might have done, have filed a re- plication to his plea, and they are thus ai much in fault as the defendant; both parties have equally contributed to the irregularity of the pleadings, and a Repleader, from the declaration, must therefore \iz ordered, that being the point of pleading at whicl^ \\i^\t mutual error commenced. 57 FoRBltf agaimt Atkinioji* Per Curiam^ A Repleader ordered. , 230 drove Bblair against Gaudrbau & Wifs* THIS was an action hypothiraire in which the plaintiff by h\» declaration setforth, that one Dominique Qirard, by his obligation made and ex- ecuted en brevet on the ist of September, 1804, be- fore Faribault, Notary, and two wifnesses, did acknowledge to owe to the plaintiff the sum of £'9 182, which he did thereby promise to pay to the plaintiff with interest, and for securing the pay- ment did mortgage and hypothecate generally all his property which he then possessed or might afterwards acquire. That on the 1st of April, 1808, he the plaintiff obtained judgment in this Court against Girard for the said sum together with interest and costs, amounting to £^20 19 5, upon which judg* mcnt execution was sued out against the moveable and immoveable property of the defendant, which was afterwards returned by the Sheriff nulla bonam That at the time of executing the aforesaid obligation, Girard was owner and proprietor of a certain lot of )and in the Bay of St. Paul, and which afterwards on February 2Q A Notarial act executed en brevet Aoe% not create a mortgace. (&) Rules and Orders 231. 4 t m the 58 it i.. y l«ilO, apiiin.it CauoREA .nnd Wife u CASES 1\ IIILAUY TJ'.UM the l6ih of September 1806 (?ong previous to the judgment obtained against Girard J he sold and on* vryed to the present defendants, and that ht^rcfore, inasmuch as Girard was the proprietor of ihv y^id lot, at the time of the making and executing of the aforesaid obligation in favor of the plaintiflP, he the plaintiff by the acquisition of the said lot by the defendants, became their mortgage creditor for th3 amount of the said judgment, interest, and costs, and thedefendants liable to pay the same, unless they should prefer to abandon the said lot of land, to be sold for the satisfaction of the said debt, which thr^y had hitherto refused to do ; and ihercfure conclud- ing that by the judgment of the court the defendants should be condemned to pay the debt or 10 quit and abandon the land, within a reasonable delay to be determined by the Court, To this action the defendants filed several pleas, one of which was a Defen\c au/onds en droits upon which the parties beiiig at issue were heard, when Vanfelson, for the defendant s, contended that upori the face of the plaintiff's declaration the present ac- tion could not be maintained, as the plaintifiPdid not in law acquire any mortgage or hypotheque upon the land in question under and by virtue of the obligation e:jecuted en brevet on the first of September, 1804, mentioned and setforth in the plaintiff's declaration, ^nd therein stated to have been so executed. That no obligation en brevet could create a mortgage, and that it was only those actes, executed before two Notaries, or a Notary and two witnesses, of which the minute or orignal remains with the Notary, which could give a right of mortgage* Berthelot, for the pliinti£F, contended that hy the obligation declared on, though executed en brevet, the plaintiff did acquire * mortgage or hypotheque upon I ; to the nd on* ercfi)re, ihe smd I f)f ihc he the by the for (ha id cosis, ess they d, to be ich thf-y onclud- frndatits ]uu and (ly to be al pleas, itt upon when bat upon isent ac- F did noe ipon the bligation r» 1804, ilaration, I. That ige, and ore two of which y, which at by the r>i brevet, ypothequc upoa IN THR FFFTIETH YEAR OF OEORGE IIF. upon the lot of land purchased by the defendants from Girard, th same having been executed before a Notify and tW3 witnesses. The Court took time to consider the point, and on this day the opinion of the Court was delivered by SEWB^^ Ch« J. This is an action hypothecaire founded upon an obligation passed en brevet^ before a Notary and two witnesses. Mortgages and all their consequences depend entirely upon the authen- ticity of their dates, aod from hence arises the un- questionable principle ** Thatno act e sous signature privee can create a mortgage}" and by parity of reason, no acte ought to create a mortgage, which in respect to the certainty of its date, is not^ more than equivalent to an Acie sous signature privee. Now in all cases, in which the original acte re* niains in the custody and keeping of the Notary, the date of that acle can be accurately ascertained by the Notary from the minute which he has kept^ but if no minute is kept, aud the acte is deli- vered en brevet to the parties requiring it, the Notary has no better means for establishing the dale of the acte than any common witness. And thaS} as to the certainty uf its date, the acte en brevet becomes no more than equivalent to an acte sous sig* nature privee, he Proust de Royer (a) states distinct- ly, that an acte en brevet ^oe^ not create a mortgage, *' un autre privilege," says he, qu'ont lesactes refus " pardes Notaires c'est qu'ils portent hypotheque, V mais il faut pour cela plusieurs conditions. II faut •• que ces Notair.es aient quaUte pour instrumemer ; " il faut qu'ils signent leursactes; et iljaut que les *• actes ne soient point en brevet mais quUl en reste *• minute," On the contrary Le Camus in his new edition of Denizart has the following observation, \* II n'y a point de doute que I'acte passe en brevet cn^porte hypotheque aussi bien que celui dont il '• reste 59 ISIft. Bgi.mr CiAiiiinnw and I III f( 4 i I: I 60 1810. Belair tigainst Gaudrbav and Win, CASES IN HILARY TERM " reste minute, c'est ce qui est attest^ par un acte (fa " Notoriety du Chatelet du 24 Avril, 1 703." (b) Bm then it must be Tcmembered ihat all ccies pRs>ed be- fore Notaries in France were, under the Ed:ct of March, 1693, controlled and enregisterrd in a publto office, in the Bureau de Controle. (c) That when an acU was executed en brevet^ it was controled and en- registered bejore it was delivered to the partic;, (d) so that the date of such an acie was the day on which it was controled) and no mortgage in point of fact was created, until the acte was enregister*^ ed. Let it be remembered also that Mr. Pothier is of opinion, that actes sous signature privee, acIc* nowledged before Notaries by the parties, will create a mortgasje, *' lonquils sont deposes chez un Notaire," and not otherwise ; (e) and that Le Camus himself admits that the originals of all actest in which third persons are interested, which is particularly the case in mortgages, ought to be kept in some public office ; " Le bien de la society [says he] exige que les *' originaux detous les actes qui imeressent, ou qui " doivent nsturellemeut interesserdes tiers,soient con^ '* servb en quelque d6pdt public et inviolable afin " qu'on ne puisse pat les soustraire, les alterer, on ** m^me seulement les tenir secrets au prejudice •' d'aotroi." (/) It is evident therefore that in France an acte en brevH was more than tquivalent to an acie sous signature privee, the date being authenticated by enregistration in a public office ; and as upon the whole we cannot consider an acte en brevet to ue in Canada any more than equivalent in this respect to an acte sous signature privee, for the want of that enregistration in a public office, for which the law provided in France, we are of opinion that an actt en brevet does not in Canada create a mortgage. JPer Curiam, Action dismissed with costs* U) Die. dM ArrCU, 2. V. 640 (b) S. L. C. Denizart, 779. (c) Repertoire, V. 40. p. 106, Edict of March, 1693, 2. Neron, 845. id) 5. Pothier, 482. L. C. Denizart, Verbo, Controle, Sec. 3, No, 6. V. tr. P. 514 CO 5. rothier, 428 (/) L. d. Oeuizart, V. 1. p. 1B4. Jud. MSS, MuRfi IN THE FIFTIETn YEAR OF GEORGE lit. g 4 MuRB & JoLLiFFf, Incidental plaintifFii i^io. against * « ■ 1 r 1 Tiutitaif, Fti. WiLEYS & Hunobrford, Incidental derendanti. vn/t. TO a demandt in Chief, instituted by Wihyi (^ Hungerfordf for the sum of £ 155 7, alleged to be a balance due upon the sale and delivery of a large quantity of pine timber, oak timber, and staves, under a special agreement in writing, the defend- ants, Klure 6? Joltffe, filed a Defense au fondi en fait ^ and an incidental cross demande, in the last of which they on their part, alleged, that by the agreement, declared upon in the demande in chief, Wileyi 6? Huiw gerford had covenanted, and agreed, to deliver, at Quebec, to them (Mure Sc Joliife) certain quantities of pine timber, oak timber, and staves, on or before the 15th of June, \%o^t under the penal sum of £200* That the said JVileys 6? Hungerford, had not per- formed this agreement, but on the contrary had fail- ed and made default therein; and that an action had thereby accrued to them, to have and recover, from Witeys and Hungerford^ the entire damage occasion* ed by their breach of contract being £^3il» for which they concluded, praying to be admitted plain- tiffs &c, as usualv To this incidental cross demande no answer whatever was filed by Wileys 6? Hunger' Jord ; and Mure & Jolifipe, having obtained leave to proceed ex parte^ the agreement for the timber and staves (dated the 4th of February, 1809, and in sub- stance as stated in the incidental demande) was pro- duced and proved at the enquete. It was further proved that no part of the pine, oak, or staves, had been delivered **on or before the 15th of June 1809;" that after the 15th of June and before the 1st of Au- gust following, the stipulated quantity of pine had been delivered, with 800 feet of oak instead of tha 10,000 feet which the incidental defendants by their agreement had engaged to deliver, but that of the quantity In an action ofdainiifjes, fur theiion-prrfor- mancc of a spc rial agrdemuiit in n-liirh a pe. nalty iii ttipu. lated to bepnid l»y the party fiiiliiif, tlic p*"- nalty is not lo be coinidcred II!) stipulated (l.tiiiasrs, and tliiTi'Torewhat- «'ver loss ii4pro« ved to have hcpnsiiDtaiiieil, whether be- yond, below, or equal, to Ih* vulue of lhe|»e- naltv,tlie plain. lifT ' will have juJgmeut fot. '^) il H*!| % 62 CASES In HILARY TEUM quaillljy of itaves (which was 2,000) not one haa been delivered. It was also proved that the price rr., inci'tl of oak timber and stave* had very much augmented, between the date of t]ie agreement, and the period fixed for the delivery. 1810. Mil UK & Jor.- plaiiitiifs, aKiiiimt \Sur.Y* & foRD, ioci'tl defendanlit. On the igth instant, Bozuen, for the incidpntal plaintiffs, was heard ex parte, Ahd the court hav- ing taken time to consider ihc case, the judgment was this day delivered. Sewbll, Ch. |. The sum to be paid by the party who should fail in the performance of the agreement of the 4ih of February, i8o9,sctforthin the declara- tion as weU of the Jema?;^^ in chief, as of the incident* al demandcf is distinctly stated, upon the face ot that agreement, to be a penalty, the words being *' under the penal sum of £ 200*" Ahd ihia efTectu* ally prevents us from considering that sum as liqui« dated damages, (aj The incidental plaintiffs are en- titled therefore, by the law of Canada, to do as ihi y have done, that is, to a&k for general damages, ex« ceeding the amount of the penalty, (b) as in England. (c) But, to entitle them to recover, they must prove the loss, sustained by them, to be beyond the value of the penalty, which they have not done. There is however sufficient evidence of loss sustained to the amount of £^200 for which judgment must btt Entered up with costs. Judgment in favor of the incidental plain- tiffs for £^200 and Costs. (a) I Domat, 271, lib. 3, tit. 5, 8.2, No. 1,5 ; 6, L. C, Denizart, 704 i Smith V. Dickenson, ,S Bos. & I'ul. 6.10 (A) Potliier, Obligations, No, 842 ; 4. L. C. Denizart, 566, Vcrbo, clause, s, 2, No. 2... .i,e) Lowe i/ I'een, 4fiurr,222». Jud. MSS. Uunak IX THE riFTir.Tit vear of george hi. Burns against Hart. THIS was an action oiindehiialus assumpsii brought by the plaintiff, an Auctioneer and Broker, against (he ilefenJant, a merchnn Aiir- 1 tiolHMT |)Ull U|» \, a iv^i'liT "(1 ( 1' \K-**c\ I'nr siiii*. i! Kitlmut ii.iiii- \\\r, liN priiui- p;il, uiH llir saini' isaiijiiil;;- !■(!, witlioiit a* f iiy»'vi)i"i'-*!tiiiii- \ ilitioii as (II iIk" ;l lime an,! man. ncr (>f «'.vi"ciit ill;; ilif « I'iilcu tr.iiisrTot'Mi.'li vessel, llic a\r.-- 1: tiitiu'iT cannot rci'iiviT, IVoin llif iiircliuscr. ■ tir'siiiiiatwhiciit .; ! llir Vi'.i-ii-l Hn,< '^ , adjiulsiil, un- \ ' less lir pronirr. j ami (IriivLT, lo ) llie pHiTlia^n- ■•■i a Ii'^al lraii->- IVr of rhi' vc,- jH M'l, rvei'utcd 1 l)y tlu" owiiiT, III' l)y !i(iin<* (KM. HDii legally au- thiirised for *:| lliat purpiisf, •1 lii'coi'diMi; III 1 the re(|iilie- iiieiitiitr the ic -t' gistor Atl. 1 \{ "m ■■ I hi' M 64 fir ISlOi Burn! againtt Uaht, tASES In IHLAUY TliRM 3. That the purchase money should be paid on the jpth of the said month of June, and the Register then delivered by the plaintilFto the said highest and best bidder, tt (hen staled, that the defendant waA the highest and best bidder, and then and there bid for the Hull &c. of the said Btig£'si5, ^^^^^ ^^* the most and last bidding at the said sale, and ihere« upon the defendant was declared by the plaintiff as the buyer thereof, who cbnsentcd thereunto, and to the binding of the said purchase ; by reason whereof he the defendant became liable &c. and being so lia- ble, undertook Sea concluding as in the first count* The third cbunt stated, that the defendant, on the s6th of the said tnonth of June, in consideration of the sale, before that tiine by the plaintitF to the de* fendant, of the Hull &c. of another Brig called the Star for the price of £^215, undertook and promised to pay the said sum, on or before the 8th day of July following, "the fourth count stated, that the defendant was indebted to the plainiifl'in /3OO, for goods, wares and merchandise, sails, anchors, cables, blocks, cordage, casks, hawsers, cambouses, tar, and 'igging, for a vessel, before that time, sold abd de. livered by the plaintiff to the defendant, and being to indebted &c, he undertook and prdmised to pay &c. 5. count, goods sold and delivered generally, 6. count, quantum valebant, j, count, money paid. 8. count, money lent. 9. and last count, Insimul tomputaaent. Conclusion, that the defendant be condemned to pay to the plaintiff the sum of nine hundred and thirty pounds^ with interest and costs^ Flea, the general issue. The case being of a mercantile nature, the plain* tiff made his option and choice of the trial and ver* diet of a Jury, and at the trial, in the last term, the following special verdict was found by a jury of mer* cb«ntf| id on the Register ^hest and idant waA there bid 'hich was nd there- laintifFas }, and to I whereof ng so lia* St count* t, on the ;ration of the de* lalled the promised 1 day of , that the '300, for s, cables, [ tar, and abd de- d being to pay inerally, ey paid. Insimul ant be of nine d coftts^ plain* nd ver* irm, the of mer- !! th« IV TMF, riFTlKTII YEAR OF r.F.OKOE III, "The jury find for the plaintiff in the sum of *' two hundred anJ forty-right pounds ten shilling*, *' the amount of .Mtii Iry lots sails, rigging, blocki, •• ^n anchor nnd cabl", boiight of him hy the de« •* ft* ndant on ihe 17th of June last. Th • y\ry also " find, (hat, on the same day, the plaintiff adjudged *• to ihe defendant, as the last and highest bidder, *' the h(j||, masts, and yards of ihr Brigantins Star, •• for the sum of two hundred and fifi<;en poundsg *• on tho condition, ih it the said vessel was to be, "from tiic moment of being ad)idg d to pay the " whole amount of his purchase, and repaired and '* offered her for sale ; and also, that the plainiifF ** offered to execute, in favor of the defendant, a oill *' of sale uf the vessel, in his own name, and that of ^* John Dapwell Hamilton^ acting for the owner of " said vessel, of the tenor of that filed by the vi'in- «• tiffin this cause, being exhibit N^ 2 — Thaf oie " of the conditions, of the sale of ihe said ves. *' scl, was that the register should be deliver- *' ed upon the Monday next following the sale, *' at the counting house of the plaintiff, upon pay- *' mtni of the purchase money by the dcferidant, *' and (hat the defendant did not call for the same, '^ and that the plaintiff hath at all times been ready to deliver to the defendant the said register, and that the same was ready to be delivered, on the Monday following by the plaintiff to the defen- dant, at the counting house of tm- plaintiff, and *' that the defendant did not call for ihe same. And •' the Jury submit to the judgment of the Court the ** point of law regarding the trausfer of the hull of " the said vessel. And that, if upon the whole ** matter now found, the Court $hail be of opinion, ** that the plaintiff has cause of action for the said ** last mentioned sum of two hundred and fifteen VOL. I. K «• pounds 65 IfilO. KUK Ml IUkt. ^i ■i\ ii 66 * i),i *' m 1810. Burns tigainst BARTt CASES IN HIURY TERM ** pound5, tl.cn the jury find for the plaintiff in the " said further sura of £215, if otherwise, then for " the defendant, in so far as respects the said sum '* of two hundred and fifteen pounds." / The exhibit N^. 2, alluded to in the foregoing verdict, and produced and proved at the trial, pur- ported to be a Bill of sale from the plaintiff, William Burns and John Dapwell Hamilton^ Esquire, acting for and in the name of the owner of the Brigantine or vessel called the Star, to the defendant, in which, it was setforth, that the Star had been bought by, and adjudged to, the defendant, at public auction, for the sum of £^215, and in consequence, that they the said Burns and Hamilton for and in consideration of the said sum did as much as in them was, and they lawfully might, grant, bargain and sell, &c. to the defendant, his heirs and assigns, the said brigantine Star, ^c. The said bill of sale also con- tained a copy of the certificate of Registry, whereby it appeared, that Alexander Gordon, of Bridge Town in the Island of Barbadoes, was the sole owner of the said Brigantine. This verdict was argued, in the present term, by Bowen and Stuart for the plaintiflF, and the Advocate General for the defendant, the following is the sub- stance of the arguments upon the point reserved by the Jury, for the opinion of the Court, Stuart, for the plainti£F, observed that there were two points of difficulty, the first, arising out of the provisions of the Register Act — the second, how far the vendor is bound to transfer the prc^erty after a positive sale. These two points were closely con« nected. He contended that, in the present case, the defendant could not say he was not the proprietor of the vessel, inasmuch as he had exerci!''jred a new Register in his name, which could not be obtained from his Majesty's officers of the cus- tom:^ here, without exhibiting to them a legal trans- fer of the vesiel, (according to ijie requirements of the statute) vesting the property in the defendant; and for the want of such legal trjiurci ntade by the actavt! proprietor, or by some oihtr per^o,!?, duiy au- thorised by hiin, to execute she !^ .me in favov t f the deftrsdant, the pretended salt oi the vesjel iu a .; ul- lity. Kerii, J. ThjV is an action brought by an auc- tioneer to recover the sum of /^ 21J, being '^he p ice for which a ship c?1iled £he Stnr, and hei apparel, were sold and adjudgsd to the defcTiant, as the highest bidder at a pubic auction* Th*- defence set up is» th3t the plaintiff has not given a bill of sale, in conformity to the requirements of the Statutes of i\it 26th and 34th Geo. III. If ships were like chattel interests, transferred by delivery, the plaiutitF would, by the facts found in this special verdict, be eniiiled to recover, having put the defendant in possession of the property ad- judged. But ships, from vety early times, have been like land, considered as a kind of property which must ba evidenced by written documents; this was so in the french law, and is now the law of all the maritime nations of Europe. In ours various acts of Parliament have regulated, in what manner titles shall be made to this species of property, and after reading the statutes of the 26th and 34th of the King, it is difBcult to conceive, how it could be sup. posed, that any thing like a transfer of this .sliip had taken place. The facts found do not conceal that Aiexander Gordon is the real owner; his name ap* pears on the face of the certificate of Registry, as the per.son vested with the right of prope ty in the ship, how then could the plaintiff and John Dap' well IN THE FTFTIETTT YEAH OF OEOUfiE TIL 73 could c cus- trans- nts of idant ; by the ]y au- cf the m auc- e p ice pparel, as ihe ?ncc set of sale, Lutes of trred by }und in having riy ad- fa a ve roperty menls; e hw of various manner ty, and h of the be sup- sl)ip had :al that Imc ap' as '11 Hamilton di thi ;S stry, in In the Dap' m.> wc II property out of the owner, without a legal written authority? Could they in con- formity with tlie seventeenth section of the 34 Geo, 3. c. 60, execute a valid indorsement on the certi- ficate of Registry ? The question is easily answered, that A cannot assign over the property of B, withouc a legal procuration to that effect. And whether we consider this as a transfer or contract, or agreement for transfer of property in the ship, we are equally called on, to declare it is void, and that the plainiiiT cannot recover. The 15 section declares, •• that *< such indorsement shall, from and after the first ** day of January, 17951 be made in the manner and ** form herein after expressed, and shall be signed ** by the person or persons transferring the property ** of the said ship or vessel, by sale, or contract, or *• agreement, for ?ale thereof, or by some person, " legally authorised for that purpose by him, her or <* them, and a copy of such indorsement shall be '* delivered to the person or persons legally autho- " rised for that purpose by him, her or them, and a " copy of such indorsement shall be delivered to the '* person or persons authorised to make registry, and '< grant certificates of Registry, otherwise such sale, ** or contract or agreement for the sale thereof, shall ** be utterly null and void to all intents and purpo- ** ses whatsoever." Lord Eldon in Woodward^ v. Larking, 3, Esp. Rep. 286, observes, that the policy, of the Liverpool acts, was to have evidence of real property. Now here, the defendant couid have nothing but an equitable title, which, under the letter and spiritof these acts, is no title at all. It has been urged, that this was a sale from necessity^ and that the fokmalities of the Register Acts must, from the same cause, be dispensed with. Nothing of that kind appears on this special verdict, and besides, where sales in a foreign port, and in extreme neces- sity, have been sanctioned, it has been a sale by the master, and not by a person assummg to be an au- thorised agent, without shewing any document which gives 1810, against H-IRT. y 74 f 1810. Burns agalnit Hart. CASES IN HILARY TERM gives him that power. Nor is it more difficult to ans- wer what is stated by the plaintifPs counsel, that the vessel was sold as a hull, and not as a ship, for the transaction shews clearly, that the plaiiuifF&et her up to public sale, for the purposes of navigation; and if it were competent to dispose of Ships, as Hulls or wrecks, without giving any other title than posses- sion, i fear the policy and plainest provisions of the Register acts would be defeated. I am, on the whole, of opinion, that the ship never was legally transfer- red, and that of course, judgment must be entered up for the defendant. Tiieitday, Feb, SO. Wlierc a third person promis- es lo ono of the parties to aeon tntct that ho will assume it. thatproinis^rcan only he bind- ing upon hiuas to tiie i)tTS0n to whom llie pro- mise was m!' Ir; and a conl/art to deliver to certain persons dnriiig :■ fixed period nil the wait llial they Diay require for their brew- ery, can only be binding m long as niiiK imiy herequir. cd for the brew- ery, and there- fore the insoU venry of such per-ion>, ;ind their eeasing to employ the bretvery ter- intnnfcs (he contifiet, nnd 1)0 damages can be claimed up. on the ground of subsequent non-perfor- itiancc. A Oakley against Morrogh and Dunn. N agreement was entered into by the piaintifF, d'"^ Robert Lester, and /Robert Morrogh, mer«» chants V', ri t' partners, under tli3 firm of Lester C^ Morr(j>h^ on -is ayih of January, 1807, at Quebec, by wh»''h h >;^,7 eovenanted by and between them that he, Oaftuj/j fhould and would make and deliver to the Cape Diamond Brewery at Quebec, such quantity of pale and brown malt from barley, as Lester and Morrogh might require during the term of five years, which were to commence on the ift of October, 1807, they Lester 8c Morrogh finding him with all manner of materials necessary for the making of the malt, save and except labour which was to be found by Oakley, for which he thould receive three pence per Winchester btuhel after the delivety of the malt in a good state for brewing, and for the faithful performance of this agreement the parties bound themselves each to the other in the penal sum Subsequent to this agreement Messrs, Le.ster 6? Morrogh became insolvent, and from the middle of Sep'tember, 1808, ceased to employ Oakley as Malt- ster of the Cape Diamond firewery, about which time (( " — V "jl ster t3 die of Malt- which time IN THE FIFTIETH YEAR OF GEORGE III. time also Later died and Morrogh was appointed Curator to his vacant estate. For the noa-performance of this Contract the present action was brought by Oakley against Morrogh as well in his own name as in his quality of Curator to the est te of his deceased p?rtner, and against Dunn, who had become the sole proprietor of the Cape Diamond Brewery, for the recovery of the stipulated penalty, aud also for a further sum of £^00. damages, he, Dunn^ having, as alleged in the declaration, assumed and taken upon himself the said contract and undertaken to do and perform all that Lester f*? Morrogh were thereby bound to do and perform. To this action the defendants severally filed a de- fense aufonds en/ait^ and at the enqutte in addition to the facts before stated, it appeared that the assumption of the contract on the part of Dunn, if any such had taken place to the extent alleged in the declaration, rested solely on a verbal promise made by Dunn to Morrogh, in a conversation which took place be* tween them, to which Oakley was not a party. Stuart, for the plaintiff, and the Advocate General for the defendants, having been heard : the Court on this day delivered the following judgment, Sewell, Ch. Jf. The action in against Morrogh, as one of the original contracting parties and the re- presentative of the other ( Lester ^^ and against Dunn^ as assignee of the contract. 7^ is a contract synaU lagmatique (or reciprocal) by which Oakley engages, ** to malt such quantities of barley, as Lester C Morrogh may require, from time to time, during the term of fiv»i years," in consideration of which Morrogh for himself and Z«^<:r undertakes, " to fur- nish all the materi.xls for making the said malt and to p? V him three pence per boihel." And to the per- formance 75 1810. I.RV Oak agahiit MoRKOCH and Dunn. ^'WmM 76 1810. Oaki.ey against MORROCH and Dunn. CASES IN HILARY TERM formance of these engagements each party binds him- self to the other in the penalty of £ 300* With respect to Dunrif there is no evidence that he pronnised at all to assume the contract, if he did promise it was to Mcrrogh, not to Oakley, and there- fore »' any action lies, it must be by Morrogh against Dim t for refusing to perform the contract as he pro- mised. No action can lie for Oakley against Dunn because he (Oakley) was not a party to the contract as to Dunn, This is evident because Dunn had no means of comptUing performance from Oakley^ and consequently Ou^.cy can \-\vt none to compel Dunn to perform the contract* and he cannot therefore sup- port an action for the penalty for non-perfornianre, tn m w. lO! Br *« , *' , enr rer ha be ►I \) ; t; 'l-i As to Morrogh, the question is this, is there evi- dence to ."hew that Later and Morrogh have required any and what quantity of Barley to be malted ? and admitting that by required we must understand " required for the Brewery," there is no evidence that any was required; the sole testimony on this point is Morrogh's Answer to the fifth Interrogatory on/aits et articlest in which he a^/s, " that ihe la- *• solvency of Lester and Morrogh prevented the: , " from continuing to employ George Oakley fion. *• September 1 808, to ihc end of the contract," which clearly implies that none was required. Upon thesp grounds the action, as to both, must be dismissed. I^ERR, J. As it respects the Defendant, Morrogh, this is an <)ciion of covenant, and as it regards DunUt 9n action of Assumpsit. I do not see how an action can be maintained against the Defendant, Dunn, on aa ag; c'^ment to which he is no party. There is no privity of contract beiween the Plain- tiff and him, and, cf course, there can be no judg- ment t( dered against him. With respcci to ihe Defendant, Morrogh^ the con- tract ■i' ^w« is himi' ICC that he did I there- against he pro- 5t Dunn :ontract had no 'ey^ and :l Dunn ore sup- uanre, IX THE FIFTIETH YEAR OF OEORGR III. tract between ihc Pl;i lifFand Lester and Morrogh, must be construed accv iing to its spirit : Nomt what Was the intention of these parties ? It was that so long as Lester and Morrogh should carry on the Brewery, at Capo Diamond, the Plaintiff should *• make, such quantity of pale and brown maltf from " barley,'^ as they should find necessary for brewing. But the insolvency of Lester and Morrogh in Sept- ember, 1808, and the subsequent sale of the Brewery rendered it no longer necessary for their concerns to have malt. m. de, and put an end to the contract between the parties. 77 1910. Oaklrv agnin$t MORROUH aud UoNM. lere evi- equired :d ? and ierstand vidence on this rogaicry '.he la- d theiA ley fion. which on thes^ [lissed. INO 01 Hilary Term. lorrogh, regards how an fendant, o party. Plam- 10 judg- the con- tract