count of Raikes and Co. A contrary decision must work the greatest hardship upon the wharfingers, and that most undeservedly, for they have acted bonâ fide for the interest of their employers. [Bayley, J. Raikes and Co. might have rescinded the contract, and stopped the goods as against Moberly and Bell, the original vendees ; but their right so to do was gone when the interest of a third person intervened. That was decided in Stoveld v. Hughes (a), and other cases which might be mentioned, and that distinguishes this case from both those cited.] Still if the goods are resold by the original vendee before they are properly his, while they are yet actually in transitu, which is the fact here, that cannot bar the right of the original vendor to stop them.

ABBOTT, C.J.-I am of opinion now, as I was at the trial, that after a party has paid his money upon a transfer note, such as that given in evidence on the present occasion, we should be enabling the defendants to do that which I cannot suppose they desire to do, vamely, to cause an innocent man to lose his money, if we were not to hold that these plaintiffs are entitled to recover; and I cannot help thinking, that to treat this as a case of stoppage in transitu, would have the effect of putting a stop to a very large portion of the commerce of the city of London. It seems to me, therefore, that there is no ground for disturbing the verdict.

BAYLEY, J.-I am of the same opinion. This appears to me to be perfectly different from the ordinary case of vendor and vendee. In the case of vendor and vendee, the justice is that the vendee shall not have the goods, unless he pays the price; and it is just and honest that, if the vendee cannot pay the price, the vendor shall have his goods back; but if the question arises, not between the original vendor and the original vendee, but between the original

(a) 14 East, 308. . Vidc 6 East, 19 et seq. in notis.




vendor and a purchaser from the vendee, that purchaser baving paid the full price for the goods; then what is the justice, and honesty, and equity of the case i The honesty is, that the vendee who has paid the price, shall be entitled to have the possession of the goods. When Raikes and Co. signed a delivery order “ to transfer, weigb, and deliver,” that, according to the settled course and usage of trade, enabled Moberly and Bell to resell the goods; and there are many cases, one of which I have already mentioned, which decide, that if the first vendor does any act which can be considered as sanctioning the sale by his vendee, that destroys all right to stop in transitu.

HOLROYD, J.--I think the transfer note given by the defendants to the plaintiffs makes an end of the present ques tion. After that, the property in the goods was in the plaintiffs, and they were held by the defendants as the property of the plaintiffs, for which the plaintiffs were to be liable to the charges from the day mentioned in the transfer note, that is, from the 10th of October. This case is very different from that of Hanson v. Meyer. In that case, there was a sale of a large quantity of starch at a fixed price; the order was to weigh and deliver a part, and that having been delivered, but not the residue, the great question before the Court was, whether the weighing and delivery of a part was or was not, in poivt of law, a transfer of the property in the whole. The Court beld, that it was not, and rightly so held; the price could not be ascertained, until the whole was weighed; the delivery of a part, therefore, was not a delivery of the whole; part being weighed and delivered, the order was complied with pro tanto, and the property in the residue remained surcharged until something further was done. It was not a delivery of a part for the whole, nor did the consequence follow by operation of law that it was a delivery of the whole, so as to deprive the vendor of his right to stop in transitu. But here, on receipt of the order to transfer, weigh, and deliver, the wharfingers sent an acknow




ledgment to the persons who had bought the goods and paid for them, that they had transferred them to their account, and those persons were made subject to charges from a certain period. I think, therefore, that they held them as the property of the plaintiffs, although there was not an actual weighing of them; that they were in the possession of the plaintiffs by means of the defendants, the wharfingers, they having given them the note stating that they were transferred to them in their books; and that the plaintiffs consequently were entitled to recover them.

Best, J.-I think, with my brother Holroyd, that the paper which was given in evidence puts an end to the question, if there was any question, in this case ; but it is also set at rest by a case which is not merely a nisi prius decision, but which also received the sanction of the whole Court; I mean that of Harman v. Anderson (a), which is precisely the same as the present. Lord Ellenborough, in that case, when sitting at nisi prius, said, “ the goods having been transferred into the name of the purchaser, it would shake the established principles still to allow a stoppage in transitu ; from the moment the defendants became trustees for the purchaser, there was an executed delivery, as much as if the goods had been delivered into his own hands. The payment of rent in these cases is a circumstance to show on whose account the goods are held; but it is immaterial here; the transfer in the books being in itself decisive. I am clearly of opinion, that the assignees are entitled to recover.” In the ensuing Term, the Attorney-General, afterwards Lord Chief Justice Gibbs, expressed his acquiescence in the direction of the judge at nisi prius, but moved to reduce the damages, on an affidavit stating that, as to one parcel of the butters, no transfer had been made in the defendant's books to the bankrupt before the bankruptcy, and that, as to that, the right of stopping in transitu therefore still subsisted when the vendor interfered.

(a) 9 Camp. 243.



0. Watson.

That, therefore, cannot be considered as a

mere nisi prius decision ; it is one which received the sanction of one of the most distinguished lawyers in Westminster Hall, when moving for a new trial, and which was sanctioned by the whole Court. But it seems to me, if we consider the principle on which the right of stoppage in transitu is founded, it cannot be extended to such a case as this; if it could, it would destroy that commerce which is now carried on through the instrumentality of dock orders. The vendee has a right to the goods the moment the contract is made and executed; but there exists in the vendor an equitable right which he may exercise at any time before the goods actually pass into the possession of the vendee, provided the exercise of that right does not disturb the rights of third persons. Now it appears to me impossible that it can be exercised in this case, without disturbing the rights of third persons, for the goods have not only been transferred in the books of the wharfingers, but there has been an acknowledgment by them that they hold them for the purchaser. It is said there has been no change of property here; if there has not, I do not see how there can be, until the tallow is actually melted down, and converted into candles. If that were so, then till the very time when it is brought into use, though it may have passed through a hundred hands, and been paid for by all, still, if it has never been weighed, the vendor, if he has not been fully paid, has a right to stop it in transitu. I think we should overturn an established principle, and a necessarily just principle, if we held that he had such a right in a case like this. He cannot exercise that right, except where the rights of third persons are not disturbed. It was originally an equitable right, and was so considered, and it is still, and ought to be considered as an equitable principle.

Rule refused.

1824. Wednesday,

Pugh v. EMERY. January 28.

D. F. JONES moved for an attachment against the SheWhere the sheriff, to avoid riff of Middleser for not bringing in the body of the defendan attachment for not bring- ant, pursuant to a rule obtained for that purpose, upon an ing in the bo- affidavit stating that the sheriff had given notice of putting dy, gave the plaintiff notice in bail, but that the notice did not set forth the names of the of putting in bail, but in bail, or that they had been perfected. This he contended the notice he

was an irregularity, and therefore the notice of bail might omitted to state thenames be treated as a nullity, and the plaintiff was entitled to his posed bail :

remedy against the sheriff, the same as if no notice of bail Held that the bad been given. notice could not be treated as a nullity

BAYLEY, J.(a)—The sheriff certainly has not been quite entitling the

correct in the form of his proceeding, but I think it would plaintiff to move for an

be rather too much to grant an attachment against him, attachment. under such circumstances.

of the pro

Rule refused.

(a) The only judge in court.


MOODY 0. KING and Porter. January 29. Where A. and B. ASSUMPSIT for money lent, with the other money had dissolved partnership, counts. Plea, by the defendant King, non assumpsit, and afterwards A. issue thereon; by the defendant Porter; bankruptcy and drew a bill in certificate, and a nolle prosequi entered as to him. At the names of the partner

the trial, before Abbott, C. J. at the adjourned Midship, which

dleser sittings after last term, the case was this :-On was accepted and paid by C. 16th July, 1821, plaintiff accepted an accommodation bill without consi.

for 481. 175. 3d. drawn in the names of the defendants, deration; and C. afterwards brought assumpsit against A. and B. for money lent: Held that A. who had become bankrupt and obtained his certificate was a competent witness for B. to prove that the acceptance was for his (A.'s) own sole accommodation, inasmuch as B. was merely a surety within the meaning of the 49 G. 3. c. 121. s. 8. and might have proved under A.'s commission.

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