1810.

quantity of staves (which was 2,000) not one had MURE & JOL-been delivered. It was also proved that the price

LIFFE, inci'tl

plaintiffs, of oak timber and staves had very much augmented, WILEYS & between the date of the agreement, and the period

against

HUNGER

FORD, inci'tl fixed for the delivery.

defendants.

On the 19th instant, Bowen, for the incidental plaintiffs, was heard ex parte. And the court having taken time to consider the case, the judgment was this day delivered.

SEWELL, CH. J. The sum to be paid by the party who should fail in the performance of the agreement of the 4th of February, 1809, setforth in the declaration as well of the demande in chief, as of the incidental demande, is distinctly stated, upon the face of that agreement, to be a penalty, the words being "under the penal sum of £200." And this effectually prevents us from considering that sum as liquidated damages. (a) The incidental plaintiffs are entitled therefore, by the law of Canada, to do as they have done, that is, to ask for general damages, exceeding the amount of the penalty, (b) as in England. (c) But, to entitle them to recover, they must prove the loss, sustained by them, to be beyond the value of the penalty, which they have not done. There is however sufficient evidence of loss sustained to the amount of £200 for which judgment must be entered up with costs.

Judgment in favor of the incidental plaintiffs for £200 and Costs.

(a) 1 Domat, 271, lib. 3, tit. 5, s. 2, No. 15; 6, L. C. Denizart, 704; Smith v. Dickenson, 3 Bos. & Pul. 630....(b) Pothier, Obligations, No. 342; 4. L. C. Denizart, 566, Verbo, clause, s. 2, No. 2....(c) Lowe v. Peers, 4 Burr. 2228. Jud. MSS.

BURNS

BURNS against HART."

1810.

Tuesday, Feby.

THIS was an action of indebitatus assumpsit brought 20.

THI

nam

a registered vessel for sale, ing his princisame is adjudg

by the plaintiff, an Auctioneer and Broker, where an Aucagainst the defendant, a merchant, to recover the tioneer puts up sum of £468 10 0 for the hull, and lower standing without rigging, masts and yards, of a Brig called the Star, pal, and the and for sundry lots of sails, rigging, blocks, anchor, ed, without aand cables, being the price at which the same had dition been sold and adjudged, by the plaintiff to the de-ner of execut

fendant, at public Auction.

ny express conas to the

time and man

ing the written transfer of such vessel, the auctioneer cannot

The first, recover, from

the purchaser,

plaintiff the sum at which

the vessel

was un

of adjudged,
at and deliver, to

less he procure,

the purchaser

the a legal trans

fer of the ves

by the owner,

son legally authat purpose, the requiregister Act.

The declaration contained eight counts. stated, that on the 17th of June last, the sold and delivered to the defendant the Hull &c. the Brig Star, as she then lay in the Cul de Sac Quebec, for £215, to be paid on the 19th of same month, and that the plaintiff then and there sel, executed engaged to deliver to the defendant the register of the or by some persaid Brig on the said 19th of June, or as soon after thorised for as required, on the payment of the said purchase according to money by the defendant, by reason whereof the ments of the redefendant became liable &c, and being so liable undertook and promised &c. and the plaintiff averred, that although he had been always ready to perform and fulfill all he was bound to perform and fulfill, and had tendered and offered a legal bill of sale of the said Brig, and was then ready and willing to execute the same in favor of the defendant, and deliver to him the Register, on payment of the purchase money and price aforesaid. Yet the defendant had refused to pay &c. The second count, stated, that on the same 17th of June, at Quebec, the plaintiff publicly put up to sale the Hull &c. of a certain other Brig called the Star, on the conditions, 1st, That the highest and last bidder should be deemed the buyer thereof, without any warranty whatever on the part of the plaintiff. 2. That the said Brig should be at the risque of the buyer, from the time he was declared to be the highest and best bidder.

3.

1810.

BURNS against HART.

3. That the purchase money should be paid on the 19th of the said month of June, and the Register then delivered by the plaintiff to the said highest and best bidder. It then stated that the defendant was the highest and best bidder, and then and there bid for the Hull &c. of the said Brig £215, which was the most and last bidding at the said sale, and thereupon the defendant was declared by the plaintiff as the buyer thereof, who consented thereunto, and to the binding of the said purchase; by reason whereof he the defendant became liable &c. and being so liable, undertook &c. concluding as in the first count. The third count stated, that the defendant, on the 26th of the said month of June, in consideration of the sale, before that time by the plaintiff to the defendant, of the Hull &c. of another Brig called the Star for the price of £215, undertook and promised to pay the said sum, on or before the 8th day of July following. The fourth count stated, that the defendant was indebted to the plaintiff in £300, for goods, wares and merchandize, sails, anchors, cables, blocks, cordage, casks, hawsers, cambouses, tar, and rigging, for a vessel, before that time, sold and delivered by the plaintiff to the defendant, and being so indebted &c, he undertook and promised to pay &c. 5. count, goods sold and delivered generally. 6. count, quantum valebant. 7. count, money paid. 8. count, money lent. 9. and last count, Insimul compulassent. Conclusion, that the defendant be condemned to pay to the plaintiff the sum of nine hundred and thirty pounds, with interest and costs.

Plea, the general issue.

The case being of a mercantile nature, the plaintiff made his option and choice of the trial and verdict of a Jury, and at the trial, in the last term, the following special verdict was found by a jury of merchants.

"The

"The jury find for the plaintiff in the sum of "two hundred and forty-eight pounds, ten shillings, "the amount of sundry lots sails, rigging, blocks,

an anchor and cable, bought by him by the de"fendant on the 17th of June last. The jury also "find, that, on the same day, the plaintiff adjudged "to the defendant, as the last and highest bidder, "the hull, masts, and yards, of the Brigantine Star, "for the sum of two hundred and fifteen pounds,

on the condition, that the said vessel was to be, "from the moment of being adjudged, at the sole "risk of the purchaser; and that the plaintiff did "not at the time name his principal. The jury fur"ther find, that the defendant took possession of "the vessel, and subsequently promised to pay the "whole amount of his purchase, and repaired and "offered her for sale ; and also, that the plaintiff "offered to execute, in favor of the defendant, a bill " of sale of the vessel, in his own name, and that of "John Dapwell Hamilton, acting for the owner of "said vessel, of the tenor of that filed by the plain"tiff in this cause, being exhibit No 2-That one "of the conditions, of the sale of the said ves"sel, was that the register should be deliver"ed upon the Monday next following the sale,

at the counting house of the plaintiff, upon pay"ment of the purchase money by the defendant, "and that the defendant did not call for the same, "and that the plaintiff hath at all times been ready "to deliver to the defendant the said register, and "that the same was ready to be delivered, on the Monday following by the plaintiff to the defendant, at the counting house of the plaintiff, and "that the defendant did not call for the same. And "the Jury submit to the judgment of the Court the "point of law regarding the transfer of the hull of "the said vessel. And that, if upon the whole "matter now found, the Court shall be of opinion, "that the plaintiff has cause of action for the said

66

1810.

BURNS against HART.

"last mentioned sum of two hundred and fifteen VOL. 1.

E

"pounds

1810.

BURNS against HART.

pounds, then the jury find for the plaintiff in the "said further sum of £215, if otherwise, then for "the defendant, in so far as respects the said sum " of two hundred and fifteen pounds."

The exhibit No. 2, alluded to in the foregoing verdict, and produced and proved at the trial, purported to be a Bill of sale from the plaintiff, William Burns and John Dapwell Hamilton, Esquire, acting for and in the name of the owner of the Brigantine or vessel called the Star, to the defendant, in which, it was set forth, that the Star had been bought by, and adjudged to, the defendant, at public auction, for the sum of £215, and in consequence, that they the said Burns and Hamilton for and in consideration of the said sum did as much as in them was, and they lawfully might, grant, bargain and sell, &c. to the defendant, his heirs and assigns, the said brigantine Star, &c. The said bill of sale also contained a copy of the certificate of Registry, whereby it appeared, that Alexander Gordon, of Bridge Town in the Island of Barbadoes, was the sole owner of the said Brigantine.

This verdict was argued, in the present term, by Bowen and Stuart for the plaintiff, and the Advocate General for the defendant, the following is the substance of the arguments upon the point reserved by the Jury, for the opinion of the Court.

Stuart, for the plaintiff, observed that there were two points of difficulty, the first, arising out of the provisions of the Register Act-the second, how far the vendor is bound to transfer the property after a positive sale. These two points were closely connected. He contended that, in the present case, the defendant could not say he was not the proprietor of the vessel, inasmuch as he had exercised the right of ownership, and would in that case be a tresspasser. The jury had found, that the defendant had taken possession