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1816.

taining creditor. Mr. O'Brien, subsequent to his

discharge, had redeemed some plate which he had HINDLE

previously pawned, and had laid down some new Bell and carpets in his rooms; there was likewise a few 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 1001.

Lens, serjeant, for the defendants.—The plaintiff has mistaken the law and the action. He had no right to seize these goods in execution. All Mr. O'Brien's property upon bis 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.

1816.

HINDLE

BELL and
Another.

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, da

mages 441.

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

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

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1816.

February 23.

THORNTON and Others v. Simpson and Others.

ce to

send

Second

A. contracts THIS was an action on a contract, dated the. to sell to B. 50 T tons of hemp, 1 5th April, 1815, for the delivery of 50 tons to be shipped from Cronstadt, of Russian hemp, to be shipped from Cronstadt or

- St. Petersburgh, in Junè or July, 0. S. The burgh; the ship's name to ship's name to be declared as soon as known, and be declared as soon as known, to arrive before the 31st of December, or the conand to arrive before the 31st tract to be void. . Sixty-four tous cane by a vessel of December.

of called the Liveley, which arrived first; and fortySeptember: A four tons, part of the sixty-four, were delivered by B. that the plaintiffs under former and distinct contracts with hemp was shipped on other persons. Twenty tons were offered to the board the Liveley; on defendant, and accepted; and the residue of the the 20th he

d fifty tons which had been collected at St. Petersnotice, that if burgh by the shippers for the Liveley, were sent the quantity did not come by the Paragon, the former ship having no room by the Lireley, 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 Of theseth A. Liveley. On the 20th they sent a second notice, gives a third stating, that if the quantity did not come by the notice, that 20 tons would Liveley, they reserved to themselves the right of come by the Liveley, and making it up by the Unity or Paragon. On the

. 29th of September they gave a third notice, that

e twenty tons would be shipped by the Liveley, and 20 tons, but refuses to see thirty by the Paragon. The defendants said they ceive any more. Held were willing to accept the twenty tons by the Livethat B. was bound to re. ley, but did not conceive themselves bound to receive the remainder of the ceive any part of the hemp by another vessel. hemp, unless he could shew that he had susțained some special damage by A.'s pon-performance of the precise terms of the contrakt.

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1816.

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

THORNTON

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 have 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

o.

PSON.

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 Liveley, because they were not bound to deliver the whole by one ship.

Verdict for plaintiffs.

ero

Best, serjeant, and Marryat, for the plaintiffs.
Lens, and Blossett, serjeants, for defendants.

An agreement whereby the Where defendants sold to defendants sell to the plain the plaintiffs all the hemip, not tiff a certain quantity of goods exceeding 300 tons, which expected by a particular vessel, might be loaded in a certain on arrival, is a conditional vessel by the agent of the concontract, dependent on the ar. cern, who shipped only 71 rival of the goods. No action tons for defendants, and filled will therefore lie for the non up the vessel on the account of delivery of the goods on the other correspondents; it was arrival of the vessel in ballast. holden that the defendants were Hawes v. Humble, 2 Camp. not liable for the non-delivery 327.; consequently the state of the 300 tons. Hayward ment of such an agreement as and Others v. Scougall and an undertaking to sell on the others, 2 Campb. 56. per Ellenarrival of the vessel is a fatal borough, C. J. See likewise misdescription of the contract. Waddington v. Oliver, 2 N. Boyd v. Siffkin, 2 Campb. 326. Rep. 61.; and Atkinson v.. per Ellenborough, C. J. Ritchie, 10 East, 530.

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