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REPORTS OF CASES
ARGUED AND DETERMINED
Court Of KING'S BENCH,
District of Quebec,
PROVINCE OF LOWER CANADA,
IN HILARY TERM,
ARGUED And DETERMINED
Court of KING'S BENCH,
DISTRICT Of QUEBEC,
The Province of Lower Canada,
IN HILARY TERM,
IN THE FIFTIETH YEAR OF THE REIGN OF GEORGE III.
HERALD against SKINNER. 1810
AJudgment was obtained in this Court by the 6tlu"day' Febplaintiff, a tavern keeper, against the defendant, an officer in the army, in Michaelmas term last, for forty pounds currency, with interest and costs, ^faS.tnTumd upon two promissory notes of the defendant payablefud^enf to the plaintiff or his order. The plaintiff sued out payee against a writ of Fieri Facias; upon which the Sheriff promissory nomade a return of nulla bona, and the judgment re- able to order, maining unsatisfied, a rule was obtained on the 1st. beingiSaS
or traders, and
instant calling on the defendant to shew cause this the note not
. purporting to?
day, why a writ of Capias at satisfaciendum should be.'or: v.alue re
J 7 J -* ^ ceived in gooas
not issue against him. The defendant was called OT mer"
Vol. 1. A and
1810. and not appearing, Vanfelson, for the plaintiff, was Herald heard in support of the rule; he contended that Siimner. 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 corn"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 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 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 Us 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)
(rt)L.C. Denizart, w.sthp. 44710450.—v. Delhagonctte, and Hilliera. Sellier: Juu. MSS. See also Encyclopeiie Methodique—Jurisprudence.—v. 3. Verbo Consulairc.
as as well as in the case of ordinary dealings. Even 1810. taking it then for granted that we are bound by the 'herald' Ordinance, we cannot, on this ground, award what sSl 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.
Hunt against Bruce and others.
Friday, Feb. 9.
rpHIS was an action on the case, for the non In an action delivery of a cargo of coal, which the defen- men" for thfUl dants, who are merchants, had as alleged in the ?oai\yaIg°merdeclaration, bargained and sold to the Plaintiff who ronmonger and
, T -, .,1 -1 . blacksmith, the
is a blacksmith and ironmonger. trial and ver
dict of a jury
may be obtain
Plea. The general issue. r>rov.unord. «e
Geo. 3. c. 2,
On the 8th instant the plaintiff declared his options'38'