1824.

JEE

Ο.

no answer to the action. It does not aver that adultery has been committed since the execution of the deed, and though it does aver that restitution of conjugal rights was refused by the Ecclesiastical Court, upon the ground of adultery THURLOW. by the wife; still, as the mere commission of adultery, at some time or other, would be no bar to this claim, so the decision of the Ecclesiastical Court is no such bar. We cannot act upon such a decision, because it is obtained by modes of inquiry and rules of evidence very different from those which prevail in this Court. Then, as the adultery is not proved, we cannot assume it, and the plea becomes a nullity. The plaintiff, therefore, is entitled to judgment.

HOLROYD, J.-It has been argued, that this agreement is prospective, and for that reason void, but I cannot assent to that proposition. It is evidently made upon a separation then fully determined upon, though not yet actually commenced, and therefore it is within the cases which have held deeds of separation to be legal instruments. The covenants fully support this deed, for one of them is, that the wife shall release her dower, which has been held to be a good consideration for a separate maintenance, Worrall v. Jacob (a). It is clear that adultery is no release of a covenant to settle a jointure upon a wife, Sidney v. Sidney (b), and Seagrave v. Seagrave (c), nor can it therefore be a bar to her title to this annuity, if the deed be valid. Then, has she forfeited her title by suing for restitution of conjugal rights? I think not. The husband's covenant is absolute; it is for life; and the case does not fall within that class which may be termed reconciliation cases; for an unsuccessful attempt to enforce a supposed right by legal means can hardly be considered as an offer of reconciliation. Upon the other point, I fully concur that we cannot run counter to the stream of authorities which have held a deed like the present binding; and therefore, upon every view of the case, I am of opinion that this action is maintainable.

(a) 3 Meriv. 256. (b) 3 P. Wms. 269. 277. in notis. (c) 13 Ves. 443.

1824.

JEE

0.

THURLOW.

BEST, J.-It has been attempted to support this plea by saying that the wife, by attempting a reconciliation, has vacated the deed, and Bateman v. Ross (a) has been cited as in point. But that case does not apply to the present, for there the parties were actually reconciled, and came together again; here no such result ensued; the husband opposed the reconciliation, and prevailed, consequently the deed enured as much as if the attempt had never been made. Upon the general question of the legality of the deed, I entertain no doubt. Public policy must not prevail against settled law; nor can we venture to overturn those decisions which have been confirmed, on appeal, by the highest tribunal of the land. Whatever may be the policy or impolicy of the law, it is settled that this description of deed is a valid and binding instrument, and upon that settled law we

must act.

Judgment for the plaintiff on demurrer.

(a) 1 Dow. P. C. 245.

Wednesday, January 28.

On the 26th

HAWES and Another v. WATSON and Another.

TROVER for 79 casks of tallow. Plea, Not Guilty, September, A. and issue thereon. At the trial before Abbott, C. J. at the London adjourned Sittings after last Term, the facts proved on the part of the plaintiffs were these. On the 25th Sep

sold by con

tract to B.

100 casks of tallow, then lying at a

66

wharf, and on the same day gave him a written order to the wharfingers to weigh, deliver, transfer, and rehouse" the same. Next day, B. who had previously entered into a contract with C. and Co. for the sale of 300 casks of tallow, in part fulfilment of that contract, obtained from the wharfingers, and sent to C. and Co. the following acknowledgment: "Messrs. C. and Co. we have this day transferred to your account (by virtue of an order from B.) 100 casks tallow, &c. with charges from 10th October." Upon the receipt of this, C. and Co. paid B. the full amount of the tallow. Shortly afterwards, the wharfingers delivered twenty-one of the casks to the order of C. and Co. On the 11th October, B. stopped payment, and on the 14th, A. the original vendor, sent notice to the wharfingers not to deliver the remainder of the tallow to B. or his order; and though the tallow had not been weighed, Held in trover by C. and Co. against the wharfingers, that after their acknowledgment that they had transferred the tallow to their account, they were estopped, and could not set up in defence a right in A, to stop in transitu.

tember, 1823, the plaintiffs bought of Messrs. Moberly and Bell, by contract, 300 casks of tallow, at 40s. per cwt. On the 27th September, in part fulfilment of the contract, Messrs. Moberly and Bell sent to the plaintiffs a transfer note signed by the defendants, who were wharfingers, in these words: "Messrs. J. and B. Hawes, we have this day transferred to your account (by virtue of an order from Messrs. Moberly and Bell) 100 casks tallow, ex Matilda, with charges from October 10th, 1823. H. and M. 100 casks." Upon receipt of this, the plaintiffs gave Messrs. Moberly and Bell their acceptance for 2880/., the amount of the tallow, which was paid when due, and shortly afterwards re-sold twenty-one casks to a third party, which the defendants delivered in obedience to their order so to do. On the 11th October, Messrs. Moberly and Bell stopped payment, and on the 14th October, Messrs. Raikes and Co. the original vendors, sent notice to the defendants not to deliver the remainder of the tallow to Messrs. Moberly and Bell, or their order. The defendants in consequence refused to deliver the remainder of the tallow to the plaintiffs, on their demand, and the present action was brought. On the part of the defendants, it appeared, that on the 26th September, Messrs. Moberly and Bell had bought these same 100 casks of tallow of Messrs. Raikes and Co. landed out of the Matilda, lying at Watson's wharf, at 41s. per cwt. to be paid for in cash, allowing two and a half per cent. discount, and fourteen days for delivery; and on that day, Messrs. Raikes and Co. gave them a written order upon the defendants "to weigh, deliver, transfer, or rehouse" the tallow. Messrs. Moberly and Bell never paid Messrs. Raikes and Co. for the tallow, nor was it ever weighed after the delivery of that order. It was contended for the defendants, that the tallow not having been weighed, the delivery of it to Messrs. Moberly and Bell had never been completed, and consequently that Messrs. Raikes and Co. had a right to stop it in transitu in the hands of the defendants, who were bound to retain it as their agents. The

1824.

HAWES 0.

WATSON.

IS24.

HAWES

v.

WATSON.

learned Judge, however, was of opinion that the defendants having by their transfer note acknowledged that they held the tallow as the property of the plaintiffs, were estopped from afterwards disputing their title, and directed the jury to find their verdict for the plaintiffs.

Copley, A. G., now moved for a new trial, on the ground of misdirection. This case falls within the rule of law laid down in Hanson v. Meyer (a). The tallow was sold at a certain price per cwt. and therefore the act of weighing was necessary, in order to complete the transfer. Then, until it was all weighed, Raikes, the original vendor, clearly had a right to stop it in transitu, and if he had that right, the defendants, who were his agents and representatives, had it also. What was said by Lord Ellenborough in Hanson v. Meyer, is strictly applicable to the defendants here: "The order stated in the case, from the defendant to the Bull porters, his agents, is to weigh and deliver all his starch. Till it was weighed, they, as his agents, were not authorized to deliver it." [Bayley, J. There the goods remained during the whole time in the name of the seller, and he paid the warehouse rent.] In this case the seller paid the warehouse rent for the tallow during a part of the time. [Bayley, J. But it did not continue in his name; on the contrary, there is an express acknowledgment by the defendants that it belonged to the plaintiffs. Abbott, C. J. Here Raikes's delivery order is, " to weigh, deliver, transfer, or rehouse" to Moberly and Bell; then there is a similar order from Moberly and Bell to the defendants; and there is the acknowledgment of the defendants to the plaintiffs, stating, "we have this day transferred to your account, by virtue of an order from Messrs. Moberly and Bell, 100 casks tallow, ex Matilda, with charges from October 10th, 1823.] The case of Shepley v. Davis (b) is a direct authority for the defendants in this case. There the plaintiff having hemp at his wharfinger's, sold a part of it, and gave the wharfinger an order to weigh and deliver, which he en(b) 5 Taunt. 617.

(a) 6 East, 614.

tered, and transferred the hemp in his books. Before the hemp was weighed, the buyer became insolvent; but it was held, that, as the weighing was a condition precedent to the delivery, the vendor was entitled to recover the hemp in an action of trover against the wharfinger. [Best, J. In that case, there was no acknowledgment by the defendants that they held the goods on account of the buyer; here there is; besides, there the original seller was the plaintiff, whereas here the plaintiff is an innocent and bonâ fide purchaser. Bayley, J. There are two material distinctions between that case and this; first, the contract there was confined to the original vendor and vendee, and the action was brought by the vendor, who had a right to rescind the contract; and second, the property was never transferred to any third person, nor did the wharfingers acknowledge that they held it on account of any third person.] It seems clear, from both these cases, that Raikes and Co. the original vendors, had a right to stop the delivery of the goods until they were paid, and if that be so, it follows that the defendants, as their wharfingers, were justified in retaining them at their order, and on their account. [Bayley, J. The contract here was complete between the plaintiffs and Moberly and Bell; they had paid Moberly and Bell the price of the goods; the defendants had held the goods as the property of Moberly and Bell, and therefore they cannot afterwards turn round and repudiate that act. Best, J. Upon the point of the transfer note given by the defendants to the plaintiffs, Stonard v. Dunkin (a) seems decisive of this case. Suppose the goods had been burnt after that transfer note was given, could it be contended that Raikes and Co. would have been the sufferers? I apprehend clearly not.] The contract between Raikes and Co. and Moberly and Bell was not complete when the latter sold to the plaintiffs; the former, therefore, were at liberty to rescind it, and to stop the goods as against all the world. Then the defendants were at liberty to hold the goods, when so stopped, on ac(a) 2 Camp. 344.

1824.

HAWES

v. WATSON.