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1809. 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 commercial matters." The 10 section of the Ord.

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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

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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. 1.... (b) 2. Pigeau 130.... Jud. MSS. equally

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equally true, that, when they were appointed, they 1809. 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.

1809.

case was cognizable in the ordinary Courts, yet if a Consular Jurisdiction had been created, it would MEIKLEJOHN have claimed, and it would have held, the exclu

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sive cognizance of such cases, as in France, under the pre-existing laws of the Colony; the form of proceeding, only, would have varied from that which is prescribed by the Code Civile.

Upon the principles stated, this will be found to be a very clear case. All tradesmen, by the law of France, were considered to be merchants, or rather dealers; and all suits, to which merchants and dealers were parties, and in which, the cause of action arose in the way of trade, were held, in the Courts of Paris, to be commercial matters, or affaires de

commerce.

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The Edite of 1563, which created the consular jurisdiction of Paris, enacts, "Que les Judges et Consuls des marchands connoitront de tous procés et différents qui seront ci-après mus entre marchands pour faits des marchandises seulement privativement à tous Juges Royaux.' '(f) And the 4th Article, of the 12 Title of the Ordinance of 1673, which, in this respect, was merely declaratory of the law of France, as it then stood, and had long been practised, as shall hereafter be shewn, and being declaratory, is now cited on that account, and on that account only; is, in these distinct terms, "Les

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Juges Consuls connoitront des différents pour ventes faites par des marchands, artisans et gens de métier, à fin de revendre, ou travailler de leur profession; comme tailleurs d'habits pour étoffes, passemens et autres fournitures; boulangers et pàtissiers, pour bled et farine; maçons pour pierres, moëlon et plâtre; charpentiers, menuisiers, charons, tonneliers, et tourneurs, pour " bois; serruriers, maréchaux, taillandiers et ar" muriers, pour fer: plombiers et fonteniers, pour (f) 5 L. C. Denizart 368. Col. 2d.... Jud. MSS.

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" plomb,

plomb, et antres semblables." (g) Le Camus, and 1809.

the author of the Jurisprudence Consulaire, are equal

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ly explicit, "Sous le nom de marchand (says the MEIKLEJOHN

former) on doit comprendre les artizans et les re

vendeurs, pour ce qui concerne leur commerce."

(h) And the latter says, "Tous ceux qui achetent pour revendre ou pour travailler de leur métier, sont justiciables des consuls. Tous les auteurs s'accordent sur ce point." (i)

It has been just now observed, that the 4th Article of the 12 Title of the Ordinance of 1673, was merely declaratory of the law of France, as it then stood, and had been long practised, and this will appear, upon reference to the Arrêt of the 12th of May 1657, pronounced, en l'audience de la gran* de Chambre," and reported in Ricards Recueil d'Arrêts, Arrêt 2d; (k) In this case the plaintiff was a tanner, and brought his action against two shoemakers to recover the value of a certain quantity of leather, sold to them, in the way of trade; and this was held, and determined, to be a case within the jurisdiction of the Juges Consuls of Chalons, where the sale was made; and not to be, within the jurisdiction of the Prévôté of Chalons, which, as the ordinary Court of law, had claimed cognizance of the suit, and was party to the Arrêt.

But, even admitting that, before the conquest, what, by the law of France, was a commercial matter, or affaire de commerce, was not to be so considered in Canada, because, in the peculiar law of Canada, there was no such distinction, still, as such a distinction is now introduced, the wisdom and experience of France, in the designation of her commercial matters, by her Edits, Déclarations, and Arrêts of her Courts of law, are the best and safest guides to the true construction of an Ordinance, by (g) L. C. Denizart, V. 5. p. 869....(h) Ib. 449....(i) Juris. Con. 5. V. 17.....(k) Vide also Bornier. V. 2. p. 736, where the Arret is stated.... Jud. MSS.

which,

1809. which, this distinction has been made, by way of exception to the ordinary rules of evidence, which against are derived from the law of France. Whether the MEIKLEJOHN

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Ordinance has gone beyond the law of France, or how far it has gone beyond it, we need not at present enquire, as the case does not call for it.

The application of the authorities which have been cited is too clear to require any comment; this is clearly a commercial matter, which would have been cognizable in the jurisdictions of the Juges Consuls, and in the proof of all facts concerning it, we must, therefore, have recourse to the rules of evidence laid down by the laws of England, by which the evidence offered is as plainly admissible.