1816.

taining creditor. Mr. O'Brien, subsequent to his discharge, had redeemed some plate which he had previously pawned, and had laid down some new BELL and carpets in his rooms; there was likewise a few

HINDLE

v.

Another.

coals in the cellar. The value of the plate and additional furniture, which was not included in the inventory exhibited at the Court of Insolvent Debtors, was about 100%.

He had

Lens, serjeant, for the defendants.-The plaintiff has mistaken the law and the action. no right to seize these goods in execution. All Mr. O'Brien's property upon his discharge was vested, first in the Clerk of the Peace; then in the assignees to be appointed under the act. Suppose he had a hundred creditors wishing to deal mildly with him, and to leave him in possession of his goods, and one creditor not so inclined; his remedy is to oblige a sale: he cannot take possession under an execution, and pay himself his whole

debt.

GIBBS, C. J.-The plaintiff had no right to take such property as belonged to Mr. O'Brien at the time of his discharge. It was vested in the Clerk of the Peace; he might have compelled the appointment of an assignee, and have obtained a distribution; but he could not take these goods in execution, unless fraud of a gross kind were shewn; and, even then, I am inclined to think that the regular course would be, to apply to set aside the discharge. But the sheriff is bound to seize the newly acquired property, and is answerable to the extent of such new property as can be ascertained.

With respect to the plate which was pawned, the creditors had only a right to it subject to the lien of the pawnbroker. If Mr. O'Brien has redeemed it, he stands in the place of the pawnbroker; and the money which he acquired to redeem it was subsequently acquired property. He became entitled to the possession of it; but the assignee under the Insolvent Act could only have it subject to the pledge. The sheriff, therefore, might have seized Mr. O'Brien's interest in it. For the coals, the carpets, and the interest in the plate, the plaintiff is entitled to recover.

The Jury found a verdict for the plaintiff, damages 441.

The Solicitor General, Best, and Vaughan, serjeants, and Espinasse, for the plaintiff.

Lens, and Onslow, serjeants, Bolland and Spankie, for defendants.

1816.

HINDLE

v.

BELL and
Another.

1816.

February 23.

A. contracts

to sell to B. 50 tons of hemp, to be shipped

burgh; the

be declared as

and to arrive

THORNTON and Others v. SIMPSON and Others.

TH

HIS was an action on a contract, dated the. 5th April, 1815, for the delivery of 50 tons from Cronstadt, of Russian hemp, to be shipped from Cronstadt or St. Peters St. Petersburgh, in June or July, O. S. The ship's name to ship's name to be declared as soon as known, and soon as known, to arrive before the 31st of December, or the conbefore the 31st tract to be void. Sixty-four tons came by a vessel called the Liveley, which arrived first; and fortyfour tons, part of the sixty-four, were delivered by plaintiffs under former and distinct contracts with other persons. Twenty tons were offered to the defendant, and accepted; and the residue of the sends a second fifty tons which had been collected at St. Petersnotice, that if burgh by the shippers for the Liveley, were sent

of December.

On the 5th of

September A. gives notice to B. that the hemp was

shipped on board the Liveley; on

the 20th he

the quantity

by the Liveley,

ther vessel.

On the 29th A. gives a third

did not come by the Paragon, the former ship having no room he would make for them. On the 5th of September plaintiffs gave it up from the cargo of ano- notice that the hemp was shipped on board the Liveley. On the 20th they sent a second notice, stating, that if the quantity did not come by the Liveley, they reserved to themselves the right of making it up by the Unity or Paragon. On the 29th of September they gave a third notice, that twenty tons would be shipped by the Liveley, and thirty by the Paragon. The defendants said they were willing to accept the twenty tons by the Liveley, but did not conceive themselves bound to remainder of the ceive any part of the hemp by another vessel.

notice, that 20 tons would come by the Liveley, and the rest by another ship. B. accepts the

20 tons, but refuses to receive any more. Held that B. was

bound to re

ceive the re

hemp, unless

he could shew that he had sustained some special damage by A.'s non-performance of the precise terms of the contract.

S

The three ships arrived within a few days of each other.

Lens, serjeant, for the defendants, contended, SIMPSON. that the plaintiffs had not fulfilled the contract on their part. A great inconvenience arose from the hemp not coming by one ship. The necessity of insuring the goods in several vessels increased the expense. If the whole of the hemp contracted for came together, the purchaser might effect a better sale. The plaintiffs ought at least to haye delivered all that came by the Liveley: though the defendants had received twenty tons, they did not consider themselves bound to take the hemp by piecemeal.

GIBBS, C. J.-If the defendants were not bound to take the whole of the hemp, they were not obliged to take part. They stand on three points: 1st, that they were not bound by the contract to receive one part by one ship and one part by another. 2d, that the plaintiffs are concluded by their notice, that the hemp would come by the Liveley. 3d, that they should have delivered all the hemp which came by the Liveley. I am of opinion the plaintiffs might call upon the defendants to receive what came between July and December: this was the substantial part of the contract. If, however, the defendants could shew that they had sustained any loss by the plaintiffs' non-performance, the contract would be discharged; but as it does not appear that they were injured, and might as well have received the hemp by one ship as by another, the plaintiffs have not

1816.

THORNTON

forfeited the benefit of their contract by varying their first notice. As to the last point, they were not bound to deliver the whole of the cargo of the SIMPSON. Liveley, because they were not bound to deliver the whole by one ship.

v.

Best, serjeant, and Marryat, for the plaintiffs.

Lens, and Blossett, serjeants, for defendants.