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1806

SUTTON versus

WELLEY,

will of the said Samuel Weeley, subject to incumbrances; and the defendant continued in such possession, as such tenant for life, until the time of the issuing of the commission of bankruptcy against him, which was ou or about the 16th of January, 1804. The annual value of the estate and manor was at the death of the said Samuel Weeley about 701. per annum, the greatest part of which then was and ever since has been underlet lo tenants, and the whole is subject to incumbrances to the amount of 2301. per annun, and consists of about 900 acres. Immediately after the death of the said Samuel Weeley the said defendant re-entered the same kiln at the said excise office in the name of John Weeley, (having taken that name in pursuance of the said Samuel Weeley's will.) His said kiln was surveyed about every fourteen days by the surveying officer of the district from its first entry in 1795, until the latter end of the month of July in the year 1799. The same was a large and capital kila and capable of burning 30,000, bricks at a time, and during all the above period was kept by the defendant for the general sale of bricks and tiles to any purchaser, and bricks and tiles were sold there to any persons who came to buy them, and that in great quantities, with a view to profit; the defendant usually employing seven or eight workmen at his kilo, who made the bricks at a certain price per thousand. During the above period, the defendant yearly, made about 150 or 200,000 bricks and a great number of tiles; part of which were, during that period, used by him in re. pairs on the said estate and in building a cottage on the brick ground for the foreman to live in, and a piggery and other buildings on the said estate ; but the greater proportion thereof were sold to customers in general, and during that period the defendant at various times solicited custom from several persons, to purchase bricks and tiles from him at the said kiln, and he

1806.

SUTTON

versats WELLSE,

exchanged bricks and tiles with one person for coals. On the 30th of January, 1796, the defendunt caused · an advertisement to be inserted in the Ipswich Journal,

addressed to tile makers, for a tilemaker, and stated , therein that a good hand might have constant employ in an extensive view of capital earth ; and in the July following the defendant caused another advertisement to be inserted in the Ipswich Journal, addressed to brick and tile makers, for a person who was a complete - master of the business of making cbimney pols, glaz· ing tiles, &c. to undertake the management of a brick kilo where there was an extensive view of excellent brick and tile earth for red ware only. In consequence of such advertisement he procured one John Cook as a foreman, lo whom he represented at the time of engaging him, that he should burn from 5 to 600,000 bricks a year for sale. Cook from the beginning of that year, superintended the brick-making business until the month of July, 1799, wben the defendant entirely gave up brick-making, from which time Cook jointly with one George March, (the defendant's brother) hired the brick-kilo and premises of the defendant and care ried on the brick-making business therein, on their ow'n account, for some time after wbich the defendant let the premises to Jeremiah Marjoram, who continued to carry on and now carries on the brickmaking business therein ; the defendant from the first opening of the "brick' kiln in 1795 and from thence until the decease of the said Samuel Weeley and afterwards, until he left off brickmaking in July 1799, carried on without in

terruption the manufacturing and selling bricks and “tiles at the said kiln, in the same manner and with the same view to profit. The couls and some of the wood used in burning the bricks were bought of two or three different persons; but some of the wood and all the brick-earika, straw and sand used in the said brickınaking were procured and raised as aforesaid by the said

1806.

SUTION versus EELBY.

John Weeley from different parts of the said estate and not bought. The brick-earth, straw, wood, and sand, procured and raised froin the said estate, so first belonging to the said Samuel Weeley, and afterwards to the defendant himself for his life, subject as aforesaid, during the above period, and used in making the bricks and tiles from the time when the defendant first commenced the brickmaking business until he declined it; upon an average, formed less than a fifth part of the expense of the coals and wood purchased for the manufacturing such bricks and tiles, and the labour em. ployed in rendering them saleable at the kiln, including the excise duty to be paid upon the same. If the defendant was a trader between those days, then the verdict to stand, if not then a nonsuit to be entered,

Pooley for the plaintiff. The first question will be whether this person was carrying on a trade, and next whether it was a trade which would make him liable to the bankrupt laws. The statute 1 Jac. I. c. 15, s. 2, is that all and every person using and that shall use the trade of merchandize by way of bargaining, ex. cbange, bartry, chevisance, or otherwise, in gross or by retail,or seeking his, her or their trade of“ living by buying and selling, &c.” Here are therefore two' branches, 6rst that of “ using the trade of merchandize," and next by “ buying and selling." Therefore if a man were to buy the materials from the real estate, and to manufacture them, he might be within the sta. tute, and now by the statute 34 Geo. III, c. 15, 8. 4, a duty is imposed upon ail bricks and tiles made in Great Britain, and by the 15th section the duty shall be made a draw back upon bricks sold as merchandize, under certain regulations, so that the legislature has considered them the subject of merchandize.”

Lord ELLENBOROUGH, C. J. " There is, now a

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dutý úpon slates, but the circumstance of a duty being imposed, does not give them any merchantable quality, distinct fron the produce of the land, which they had not before."

Pooley: "A person who is owner of a plantation in Jamaica, manufacturing cotton in Manihester, and holding bimself out as a trader, would be within the bankrupt laws ; so à brewer of pórter, a distiller, an iron-founder, and a manufacturer of copper. Suppose an iron-founder has a very considerable quantity of iron from off his own estate, which is manufactured by him, he is a person using trade and merchandize. In Fort v. Turner, * it was held that one who buys a coalinine, works it, and sells the coals, is not a trader within these statutes ; but the ground of that decision was, that be merely brings the produce to market as a farmer does, he sells the coal in its natural state ; and although it was observed by the Lord Chief Justice, that the buying and selling; wbich is within those statutes, is to be confined to persons who live by a credit gained on an uncertain capital stock, yet it is also said that the case of the brickmaker is very different, the earth is manufactured and turned into quite another thing, but coals carried to market are the same as they were found in the earth. And Lord Mansfield said, in the Case of Parker v. Wells,t that brickmaking for sale, abstractedly considered, is in fact carrying on a trade, . and seeking to live by the profits. Many things are Hecessary to be bought wliich can only be paid by the money to arise by the sale of the bricks. The credit is given to no visible funil, but merely upon speculation on the profits of the trade."

Lord E.LENBOROUGH, C. J. “I do not see that

* 2 Wilson, 169. † 1 Brown, 494. 1 Term Rep. 34. NO. XXXIV, N.S.

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1806. SUTTON

WEELEY.

there is much in the words that there is a credit given to any uncertain capital or to a certain capital, every man gives credit to another to the extent of his solo vency.”

Pooley then cited er parte Harrison,* and Parker v. Iells, in both of which cases it was held by Lord Mansfield, and Mr. Justice Buller, that where the party kept a public sale kiln he was a tra. der. And a man may be a trader carrying on business or a tiade upon his own land, subslantially as a tradesman and independently of his occupation of the land, but if he does merely that which is necessary to take the produce of his own estate that will not be a trading within the bankrupt laws.

Le Blanc, J. « The character of land owner then must be supposed to cease the moment be digs the clay out of the pits.”

Lord ELLENBOROUGH, C. J. " You do not contend that if he burns only for his own use that makes any difference, or that it can in that case be said to be, a manufacture.”

Lawrence, J. “ You do not mean to say that it is not the usual mode of carrying the produce to market to dig the clay and sell it. Then if a man coines to an estate, and finds a quantity of brick earth which has been usually made into bricks and sold; he finds, that the best mode of taking the produce of the estate is to proceed with the manufacture, and he does so; is not that the best mode of taking the produce of the estate? I do not see why the manufacturing of the clay makes him a trader.”

* Brown, 173.

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