1810. HERALD against SKINNER. and not appearing, Vanfelson, for the plaintiff, was heard in support of the rule; he contended that the plaintiff was, in this case, entitled to an execution against the person of the defendant under the Code Civile, and under the Provincial Ordinance, 25 Geo. III. c. 2. s. 38. which declares that " For the satisfaction of all Judgments given in com"mercial matters, between merchants or traders as well as of all 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 of the defendant, but also, in case they shall not produce "the amount of the plaintiff's demand, against his 66 66 66 person." The original cause of action, he said, was clearly a Commercial matter, the notes being drawn payable to order, and therefore negotiable, and that the parties quo ad the notes must be deemed traders. SEWELL, 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 satisfaciendum, 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 founded upon two promissory notes payable to the plaintiff or his order, the defendant is liable to the contrainte par corps. The Ordinance of 1667, Tit. 34. Att. 4. allows the contrainte par corps "pour dettes entre marchands pour fait de la marchandise dont ils se melent;" and decisions in the Courts of France have setted that to entitle the plaintiff to the contrainte par corps upon a promissory note payable to order, both the drawer and payee, must be merchants in point of fact, (a) (a)L.C. Denizart, v. 5th p. 447 to 450.-v. Delhagonette, and Hillierv. Sellier: JUD. MSS. See also Encyclopédie Methodique—Jurisprudence. v. 3. Verbo Consulaire. as as well as in the case of ordinary dealings. Even taking it then for granted that we are bound by the Ordinance, we cannot, on this ground, award what is asked. If the plaintiff be entitled to a capias ad satisfaciendum, his right to it must rest upon the 38th Section of the Provincial Ordinance, 25 Geo. 3, c. 2. by which a capias ad satisfaciendum, upon a return of nulla bona, is allowed, 1st. "For the satis"faction of all Judgments given in commercial "matters between merchants or traders. 2dly, For "the satisfaction of all Judgments given for debts "due to merchants or traders for goods, wares and "merchandize by them sold." Now the defendant is not a merchant or a trader by profession, and the decisions of the Courts of law in France in pari materia to which we have adverted, do not permit us to consider him to be quoad hoc, a merchant or trader, the case therefore does not come within the first description; and as the note is expressed "for value received" only, and we have no evidence that this value consisted "in goods, wares or merchandize sold," we cannot consider it as coming within the second. The Rule therefore must be discharged. 1810. HERALD against SKINNER. Per Curiam, Rule discharged. THIS HUNT against BRUCE and others. Friday, Feb. 9. non In an action THIS was an action on the case, for the delivery of a cargo of coal, which the defendants, who are merchants, had as alleged in declaration, bargained and sold to the Plaintiff is a blacksmith and ironmonger. PLEA. The general issue. upon an agree ment for the sale the coal by a merwho ronmonger and of a cargo of On the 8th instant the plaintiff declared his option A 2 and chant, to an i blacksmith, the s. 38. 1810. HUNT against BRUCE and others. 66 and choice to have and obtain the trial and verdict of a jury, under the Prov. Ord. 25 Geo. 3. c. 2. s. 9. which declares, "That all and every person having suits at law, and actions, grounded on "debts, promises, contracts and agreements, of a "mercantile nature only, between merchant and "merchant, and trader and trader, so reputed and understood, according to law, and also of perso"nal wrongs proper to be compensated in damages, "may, at the option and choice of either party, have 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"ters of fact in any such cause, &c.," and in consequence obtained a Rule, calling on the defendants to shew cause this day "why a Jury should not be "forthwith struck, according to the course and "practice of the Court, for the trial of the issue, "&c." 66 66 Ross, for the defendants, in shewing cause, contended that this case did not come within the letter of the Ordinance which grants the trial by Jury in cases of "a mercantile nature only, between "merchant and merchant, trader and trader, so "reputed and understood, according to law; and "in cases of personal wrongs, &c." The plaintiff, he said, was a blacksmith, or worker up of wrought iron, and as such had agreed with the defendants for the purchase of a certain quantity of Coal; which, though a necessary article to enable him to carry on his trade of blacksmith, was not to be resold by him or become an article of trade or traffic in his possession; the plaintiff was not, therefore, as to the Coal in question, a merchant or trader, and unless both parties are such, the Ordinance does not give the trial by Jury. Bowen, in support of the Rule. A blacksmith and ironmonger is, and must be considered to be, in 1810. HUNT against others. in every point of view, a dealer and trader. He most unquestionably is not in the situation of a mere journeyman, who bestows only his personal BRUCE and labour. A blacksmith not only furnishes labour, but materials, and afterwards abides the risque of the sale of the goods he has, as blacksmith, manufactured, Coals are absolutely necessary to carry on his trade; and, therefore, every contract for coal, for the purposes of his trade, is made in his character of blacksmith, and consequently of trader. SEWELL, Ch. J.-This Rule must be made absolute. A Jury is allowed by law, (a) in any suit or action, between merchant and merchant, or trader and trader, which is grounded on debt, promise, contract or agreement, of a mercantile nature. The defendants, in this action, are merchants, and the plaintiff is a blacksmith and ironmonger, that is, a dealer in iron goods, which he buys and sells in the way of trade; the parties, therefore, are within the very letter of the Ordinance, and as the base of the action is alleged, upon the face of the declaration, to be an agreement between the plaintiff and defendants for "the sale and delivery of a cargo of Coal," which the defendants refuse to accomplish, the action is plainly grounded on an agreement of a mercantile nature, Per Curiam, Rule absolute. (a) Prov. Ord. 25, Geo. 3, c. 2. s. 9. HARTSHORNE and others against Scorт and Soм THIS MERVILLE. 12h. Monday, Feb. is pending, in HIS was an action of trespass against the Col- Where a suit lector and Comptroller of the Port of Quebec, the Admiralty, for seizing, taking and carrying away, the goods goods, seized as forfeited; and an action of trespass is brought against the seizors, for the illegal seizure of the same gods; the defendants may by an exception dilatoire, claim a stay of proceedings, in the latter, until the former is decided. A 3 and 1810. HARTSHORN and chattels of the plaintiffs, upon the pretence, as alleged in the declaration, that the same were foragainst feited, under and by virtue of, some, or one, of the SOMMERVIL-laws of shipping and navigation. and others SCOTT and LE. To this action, the defendants pleaded an exception dilatoire, in which they set forth, that, in their qualities of Collector and Comptroller, they had seized, and instituted a suit or action in the Court of Vice-Admiralty of Lower Canada, against a certain schooner called the Beaver, her tackel, apparel, and furniture, and the goods, wares and merchandize, therein laden; for breach of the laws of shipping and navigation, and of the laws of trade and plantations; by which they had prayed that the . same should be adjudged to be forfeited, and condemned; the which said seizure and suit or action were the same identical facts, upon which the present action of the plaintiffs was founded; that the said suit or action was then still pending in the Court of Vice Admiralty, and not discontinued, adjudged upon, or determined; and the legality, or pretended illegality of the seizure, and detention, of the Beaver and cargo, in no wise ascertained; and therefore concluding, that all proceedings in the present action, should be staid, until the suit or action, in the Admiralty, should be finally settled by the Decree of that Court. The plaintiffs filed a general answer to this exception upon which the parties were now heard. The Advocate General and Bowen, in support of the exception observed, that the proceedings in this cause, ought to be staid, until the Decree of the Court of Vice-Admiralty was pronounced, as should that Decree be in favor of the seizure, there will have been no trespass, and this action must then be necessarily dismissed. Stuart, |