ARGUED AND DETERMINED IN THE Court of KING'S BENCH, FOR THE DISTRICT OF QUEBEC, IN The Province of Lower Canada, IN HILARY TERM, IN THE FIFTIETH YEAR OF THE REIGN OF GEORGE III. HERALD against SKINNER. 1810. A 6th. can issue on a ob tained by the payee against the drawer of a JUDGMENT was obtained in this Court by the Tuesday, Feb. plaintiff, a tavern keeper, against the defendant, an officer in the army, in Michaelmas term last, for forty pounds currency, with interest and costs, satisfaciendum No capias ad upon two promissory notes of the defendant payable judgment to the plaintiff or his order. The plaintiff sued out 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. being merchants instant calling on the defendant to shew cause this the day, why a writ of Capias at satisfaciendum not issue against him. The defendant was te, though pay the parties not or traders, and note not purporting to should be for value recalled wares and ceived in goods ΟΥ mer chandize. 1810. HERALD against SKINNER. and not appearing, Vanfelson, for the plaintiff, was 66 the satisfaction of all Judgments given in com"mercial matters, between merchants or traders. 66 66 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 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. Per Curiam, 1810. HERALD against SKINNER. Rule discharged. THIS HUNT against BRUCE and others. Friday, Feb. 9. In an action upon an agreement for the sale of a cargo of HIS was an action on the case, for the non delivery of a cargo of coal, which the defendants, who are merchants, had as alleged in declaration, bargained and sold to the Plaintiff who ronmonger and is a blacksmith and ironmonger. PLEA. The general issue. the On the 8th instant the plaintiff declared his option coal by a mer chant, to an i blacksmith, the trial and verdict of a jury may be obtained, under the Prov. Ord. 25. Geo. 3. C. 2, s. 38. |