thereon moved for a venire, the same had been granted, returnable this day.

The Jury being sworn,

1810.

HUNT against BRUCE and others.

Bowen, for the plaintiff, opened the case when it appeared that there was no note in writing of the agreement, no part of the coal delivered, nor any earnest given, and he was proceeding to prove, by parol evidence, the contract of bargain and sale declared on, when,

Ross, for the defendants, objected to the evidence offered, it being in proof of a commercial matter, and insufficient to support the declaration, under the Statute of frauds, (29. C. 2. 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. 25 Geo. 3. c. 2. s. 10. That by the 17 section of the Statute of frauds 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 "allowed to be good, except the buyer shall accept

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part of the goods so sold, and actually receive "the same, or give something in earnest to bind "the bargain, or in part payment, or that some "note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents there"unto lawfully authorized." He, therefore, contended, that as no part of the coal had been delivered, nor any earnest paid, nor any note or memorandum in writing made, the evidence offered of the alleged agreement, could not be received; and he cited Rondeau v. Wyat, 2. H. Black. Rep. 63. Cooper, v. Elston, 7. Term. Rep. 14. Towers v. Osborne, 1. Stra. 506. Clayton v. Andrews, 4. Burr. 2101.

Bowen,

Be

Boren, for the plaintiff, contenlel that the Statate of frauds was no part of the law of Canada, and Bad in no instance had been so considered, and, therefore all the english decisions, founded upon that Statute, were inapplicable to the present ease. That the Prov. Ord. 25. Geo. 3. c. 2. s. 10. had not introduced into this country, the whole body of the English law, in commercial cases, but simply the English Rules of evidence, he, however, observed, that the question was new, and one he had not anticipated, and, consequently, was not prepared to argue, but he wished the trial might proceed, reserving for a future day the discussion of the objection offered.

SEWELL, Ch. F. This cause, after argument, has been referred to a Jury, because the parties plaintiff and defendants, respectively, are a trader and merchants, and the action founded on an agreement of a mercantile nature; and as it is clear, that such a cause in France, would have been cognizable in the Consular Jurisdiction, it is, with respect to the proof to be adduced, within the principle laid down, by the decision of this Court in Pozer, v. Meiklejohn; (b) and recourse must be had, for the rules of evidence, to the laws of England.

The question, then, is this, is the Statute of frauds in this respect, in force in Canada; and does it apply to to the case before us, the contract being executory? As to its being in force, the answer is obvious; it is unquestionably a part of the "rules of evidence laid down by the laws of England," to which, by Statute (Ord. 25 Geo. 3. c. 2. s. 10.). it is enacted," recourse 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 con

(b) Pcst p. 11.

tract

tract being executory; this question (which certainly has fluctuated in Westminster Hall), has at length been put to rest, by the very able decision of the court of Common Pleas in Rondeau, v. Wyatt, (c) and the confirmatory Judgment of the Court of King's Bench in Cooper, v. Elston. (d) Evidence therefore must be given of some memorandum in writing, signed by the parties, or that some part of the coal purchased was delivered, or that some money was paid by the plaintiff to the defendants on account of the coal; the plaintiff cannot otherwise recover.

No evidence of either was offered, and the plaintiff therefore,

(c) 2 H. Black. 63......... (d) 7 Term. Rep. 14.

The decision, in the case of Pozer v. Meiklejohn, being referred to in the preceding Judgment, in Hunt v. Bruce and others, it is inserted in this place, though the decision was anterior, in point of time, to the period, at which these reports commence.

IT

POZER against MEIKLEJOHN.

1810.

HUNT against BRUCE and others.

14th April,

1809.

T was objected at the enquête, on the part of the defendant, that the case was not commercial, and that the evidence, offered by the plaintiff, was inadmissible, under the law of the Country in force, The transac

at the time of the conquest.

tions of tradesmen & artisans, in the way of their trade, are to be consider

The Chief Justice SEWELL, delivered the opinion ed as commer

of the Court as follows:

cial matters, & in all actions brought upon such transactions, recourse

English ru

under the Ord.

The plaintiff Pozer is a merchant, and alleges, must be had to in his declaration, that having purchased 77 hogs-les of evidence, heads of beer, he stored them in the cellars of the 25 Geo. 2. c. 2. defendant Meiklejohn, who is a brewer, and he mands the value of the beer, and of the casks, on the law of the ground of Meiklejohn's refusal to deliver them. cognizable by

s. 10, and gen

de- erally in

all

cases which by

France were

the Consular

Meiklejohn, jurisdiction.

1809.

POZER against

Meiklejohn, on his part, admits the receipt of the the beer, and of the casks, and also his refusal to deliMEIKLEJOHN Ver them, in which he persists, alleging that Pozer after storing them in his cellars, upon his own account, sold 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 by Statute for those cases, in which, "proof is to be made of facts concerning

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commercial matters." The 10 section of the Ord. 25. Geo. 3. c. 2. having enacted that, "in proof of "all facts concerning commercial matters, recourse "shall be had, in all Courts of Civil Jurisdiction "in this Province, 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 Sovereign Council of Quebec, and particularly in the Vicomté of Paris, there were peculiar jurisdictions, (Juges Consuls) who were appointed "afin de juger "les affaires de commerce." (a) It is true, that in the provinces, or districts of France, in which no Juges Consuls were appointed, all "affairs de commerce," as well as ordinary matters, were heard and determined by the ordinary courts of law; (b) but it is (a) Juris. Consul V. 1, p. I.... (b) 2. Pigeau 130.

.....

Jud. MSS.

equally

1809.

POZER

against

equally true, that, when they were appointed, they held the exclusive cognizance of all commercial matters in dispute, and of no other. (c) Every mat- MEIKLEJOHN ter in dispute therefore, to which, the jurisdiction of the Juges Consuls extended, was according to the law of France, a commercial matter or case, and all the facts, relating to such matters, were, consequently, "facts concerning commercial matters."

Now the system of jurisprudence, which we administer, has for its basis, the law of France, and particularly, that portion, of the law of France, which was observed as law in the Vicomté of Paris, before the establishment of the Sovereign Council of Quebec; 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 interpretation of that new rule, which, in such general terms, is prescribed by the Ordinance, (d) to enquire whether the case be, or be not, a matter which would have been cognizable, in the jurisdiction of the Juges Consuls, as a commercial matter, that being the best criterion, by which we may decide, whether the facts of the case be, or be not, "facts concerning "a commercial matter." The 16th Title of the Code Civile prescribes "la forme de procéder," that is, the practice in the Courts of the Juges Consuls, and it is undoubtedly a fact, that the whole of this Title was abolished by the Redaction, "attendu que "cette jurisdiction n'est point établie dans le pays." (e) But this does not effect the conclusion to be taken, the enquiry is, what, according to the law of Canada, was an affaire de commerce or commercial matter? and not, what was the practice, or forme de procéder, 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. such by the law of Canada, and although every such (c) L. C. Denizart, Verbo-"Consuls des Marchands" S. 1. et 2. and authorities cited post.... (d) Prov. Ord. 25 Geo 3 c 2 S 10. (e) Edits et Ord. V. 1. p. 140....Jud. MSS.

case