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 SOMMERVIL

present 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?

and others

Scott and

LE.

Per Curiam,

Let the proceedings be staid.

(a) Pigeau, 208, 201, also 39.

A 4

HUNT

1810.

Tuesday, Feb.

13th.

THIS

HUNT against BRUCE and others.

THIS was a special action on the case. The declaration stated, that the defendants, being

The 17 section merchants, did bargain and sell to the plaintiff, who

of the Statute of

c. 3) is in force

frauds (29 C. 2 is a blacksmith and ironmonger, 112 chaldrons of in Canada, in New Castle Coal, to be taken per invoice; the

commercial

ca

ses, as
part of the rules
of

laid down by

gland, to which in such cases,

recourse

25 Geo. 3

10.

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 Casest agree, to deliver the Coal to the plaintiff on demand, brd.had, under at one of the wharves, in the city of Quebec; and therefore a sale that in consideration thereof, the plaintiff had more than fro. 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

of

goods, for

stg. is not good,

goods contract

delivered,

earnest

no

nor any memo

made in writing.

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.

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 moved for a venire, the same had been granted, returnable this day.

The Jury being sworn,

Bowen, for the plaintiff, opened the case when it appeared that there was no note in writing of the agreement, no part of the coal delivered, nor any earnest given, and he was proceeding to prove, by parol evidence, the contract of bargain and sale declared on, when,

Ross, for the defendants, objected to the evidence offered, it being in proof of a commercial matter, and insufficient to support the declaration, under the Statute of frauds, (29. C. 2. c. 3. s. 17.) which established rules of evidence in certain commercial cases, and must be considered as in force in Lower Canada, by virtue of the Prov, Ord. 25 Geo. 3. c. 2. s. 10. That by the 17 section of the Statute of frauds it was enacted, "That no contract for the

66

66

66

66

sale of any goods, wares, and merchandizes, for the price of £10. sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive

the same, or give something in earnest to bind "the bargain, or in part payment, or that some

66

66

note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents there

unto lawfully authorized." He, therefore, contended, that as no part of the coal had been delivered, nor any earnest paid, nor any note or memorandum in writing made, the evidence offered of the alleged agreement, could not be received; and he cited Rondeau v. Wyat, 2. H. Black. Rep. 63. Cooper, v. Elston, 7. Term. Rep. 14. Towers v. Osborne, 1. Stra. 506. Clayton v. Andrews, 4. Burr. 2101.

Bowen,

1810.

HUNT against BRUCE and others.

1810.

HUNT against BRUCE and others.

Bowen, for the plaintiff, contended that the Statute of frauds was no part of the law of Canada, and in no instance had been so considered, and, therefore all the english decisions, founded upon that Statute, were inapplicable to the present case. That the Prov. Ord. 25. Geo. 3. c. 2. s. 10. had not introduced into this country, the whole body of the English law, in commercial cases, but simply the English Rules of evidence, he, however, observed, that the question was new, and one he had not anticipated, and, consequently, was not prepared to argue, but he wished the trial might proceed, reserving for a future day the discussion of the objection offered.

SEWELL, Ch. F. This cause, after argument, has been referred to a Jury, because the parties plaintiff and defendants, respectively, are a trader and merchants, and the action founded on an agreement of a mercantile nature; and as it is clear, that such a cause in France, would have been cognizable in the Consular Jurisdiction, it is, with respect to the proof to be adduced, within the principle laid down, by the decision of this Court in Pozer, v. Meiklejohn; (b) and recourse must be had, for the rules of evidence, to the laws of England.

The question, then, is this, is the Statute of frauds in this respect, in force in Canada; and does it apply to to the case before us, the contract being executory? As to its being in force, the answer is obvious; it is unquestionably a part of the "rules of evidence laid down by the laws of England," to which, by Statute (Ord. 25 Geo. 3. c. 2. s. 10.). it is enacted, recourse shall be had in all the Courts

66

of Civil Jurisdiction in this Province in proof of

all facts concerning commercial matters." As to

its being applicable to the case before us, the con

tract being executory; this question (which certainly has fluctuated in Westminster Hall), has at length been put to rest, by the very able decision of the court of Common Pleas in Rondeau, v. Wyatt, (c) and the confirmatory Judgment of the Court of King's Bench in Cooper, v. Elston. (d) Evidence therefore must be given of some memorandum in writing, signed by the parties, or that some part of the coal purchased was delivered, or that some money was paid by the plaintiff to the defendants on account of the coal; the plaintiff cannot otherwise recover.

No evidence of either was offered, and the plaintiff therefore,

Per Curiam,

was Nonsuited.

(c) 2 H. Black. 63......... (d) 7 Term. Rep. 14.

The decision, in the case of Pozer v. Meiklejohn, being referred to in the preceding Judgment, in Hunt v. Bruce and others, it is inserted in this place, though the decision was anterior, in point of time, to the period, at which these reports commence.

IT

POZER against MEIKLEJOHN.

was objected at the enquête, on the part of the defendant, that the case was not commercial, and that the evidence, offered by the plaintiff, was inadmissible, under the law of the Country in force at the time of the conquest.

1810.

HUNT against BRUCE and others.

14th April, 1809.

The transactions of tradesmen & artisans, in the way of their trade, are to be consider

The Chief Justice SEWELL, delivered the opinion ed as commerof the Court as follows:

cial matters, & in all actions brought upon such transactirecourse

must be had to English

hogs-les of evidence, the under the Ord.

of

25 Geo. 2. C. 2. s. 10, and gen

The plaintiff Pozer is a merchant, and alleges, in his declaration, that having purchased 77 heads of beer, he stored them in the cellars defendant Meiklejohn, who is a brewer, and he mands the value of the beer, and of the casks, on the law of the ground of Meiklejohn's refusal to deliver them.cognizable by Meiklejohn, jurisdiction.

de-erally in all