1810.

HUNT

against

BRUCE and others.

66

66

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

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

MERVILLE.

12h.

Monday, Feb.

Where a suit is pending, in

THIS HIS was an action of trespass against the Collector and Comptroller of the Port of Quebec, the Admiralty, for seizing, taking and carrying away, the goods goods, seized

against certain

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.

1810.

and chattels of the plaintiffs, upon the pretence, as HARTSHORN 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

ScorT 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,

and others

SCOTT and

Stuart, against the exception, contended that ex- 1810. ceptions dilatoires must have some positive law to HARTSHORN support them, being always unfavourably received, against as tending to retard the decision of a cause; in the SOMMERVILpresent instance, no authority had been, nor could. be produced to authorise the conclusions of the defendants exception He cited 1. Pigeau 197.

SEWELL, Ch. J. the defendants have seized and libelled in the Admiralty a vessel and cargo, (the latter the property of the plaintiffs,) for an alleged breach of the laws of trade and navigation; and their suit is still pending and undetermined in that Court. The plaintiffs, however, contend that the seizure was an act of trespass, and have brought this action, for the recovery of the damages which they have thereby sustained. But it is not pretended that the Admiralty have not jurisdiction over the question, raised by the suit there instituted, upon the legality of the seizure.-That Court, then, having jurisdiction 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 plaintiffs should be permitted to proceed and recover in this action, and the seizure should afterwards be adjudged to be legal, in the due course of law?

Per Curiam,

Let the proceedings be staid.

LE.

13th.

1810.

of the Statute of

c. 3) is in force

commercial ca

ses, as

part of the rules

of

laid down by

gland, to which

in such cases,

recourse

be had, under

C. 2. S. 10. and

of goods, for

stg. is not good,

goods contract

THIS

HUNT against BRUCE and others.

Th

Tuesday, Feb. HIS was a special action on the case. declaration stated, that the defendants, being The 17 section merchants, did bargain and sell to the plaintiff, who frauds (29 C. 2 is a blacksmith and ironmonger, 112 chaldrons of in Canada, in New Castle Coal, to be taken per invoice; the being same being the cargo of the Brig Anne, Robert evidence, Weatherly master, then in the Port of Quebec. the laws of En- That the defendants did covenant, promise, and cases agree, to deliver the Coal to the plaintiff on demand, Ord. 25 Geo. 3 at one of the wharves, in the city of Quebec; and therefore a sale that in consideration thereof, the plaintiff had more than £10. agreed to pay to the defendants, thirty shillings, if no part of the currency, for each and every chaldron. That the ed for has been plaintiff was always ready, and did offer, to receive given, the said quantity of Coal, and to pay the defenrandum thereof dants the stipulated price, and in every respect to conform to the agreement, and did demand and require of the defendants, to deliver to him the said 112 chaldrons of Coal. Yet the defendants, not regarding their promises, but intending to injure and defraud the plaintiff, and to cause him great hurt and prejudice in his trade, as a blacksmith and ironmonger, and to deprive him of the reasonable profit, which he otherwise would have made, upon the sale 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.

delivered, no

earnest

nor any memo

made in writ

ing.

PLEA, the general 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 former day, had made his option and choice to have and obtain the trial and verdict of a Jury, under the Prov. Ord. 25 Geo. 3. c. 2. s. 9. (a) and having (a) Ante .3.

thereon