CROSBIE V. SUGRUE. T. T. 1845. election of the landlord. There was no evidence that he had taken Queen's Bench. any step to avoid the lease, which he had a right to do; and in the absence of all evidence upon the subject the landlord still retains his power of election. Now, in that state of things it is impossible to say that the landlord is barred by the Statute of Limitations; and it would be unjust that the tenant should be permitted to take advantage of his own wrong, having withheld the rent for a period of twenty years. In Armsby v. Woodward the words of the lease were strong to create an absolute forfeiture in the event of non-payment of rent at a certain period; but the Court held that it did not become absolutely null and void, but voidable at the election of the landlord, and that he was bound to re-enter to take advantage of the forfeiture, if the rent was unpaid or covenant broken. These matters had not taken place in the case before us; Crosbie had not elected to enter for the forfeiture, therefore the statute had never begun to run. On these grounds we are clearly of opinion the verdict had must stand. Cause allowed with costs. T. T. 1845. Queen's Bench. CROKER v. LAWDER. The TROVER, to recover the value of four puncheons of whiskey. Term 1844. one June 10. By the custom of the spirit trade in the city of Dublin, where whiskey isbonded in the Queen's stores, the party selling gives to the purchaser certain request notes, on the faith of which It appeared from the evidence that the defendant was a merchant, and had purchased on the 9th of January 1843, from Timothy O'Brien, the agent of Carton and Burke, distillers, ten puncheons of whiskey, which were bonded in the Queen's stores in Dublin in O'Brien's name. On the 25th of May following, the defendant sold six puncheons of the whiskey to one Wolfenden the price is Burroughs, for the price of which he took Burroughs' acceptances, paid, and which constione due on the 25th of August, the other due 12th of September tute a suffi1843, and he gave Burroughs six blank requisitions purporting to be signed by O'Brien, as the agent of Carton and Burke. sitions were in the following form : The requi 184 cient authority to the store house keeper to deliver the whiskey to the holder of them. The defendant having sold six pun casks whiskey. cheons of whis C. B. 771. TIMOTHY O'BRIEN. key to A B, Stored 12th January 1843. It further appeared that Burroughs' acceptances were dishonoured; and the defendant having ascertained that four out of the six puncheons of the whiskey which he had sold to Burroughs were still in the Custom-house store, got the following order from O'Brien, addressed to the store-keeper at the Custom-house :"Please to transfer to John Lawder four puncheons of whiskey, he paying duty and charges thereon.-No. 773, 774, 775, 776. Stored 12th January 1843. The defendant, on this order, on the 6th of September 1843, took the whiskey out of the store and sold it. It further appeared that the plaintiff had, on the 29th of June 1843, purchased the six puncheons from Burroughs, and had obtained from him the six request notes, and before paying for the whiskey, he sent the request notes to the Custom-house (as was the usual practice) on the same day, to ascertain that all was right, and having ascertained that, he then paid for the whiskey. On that occasion the Custom-house and having got his acceptance for the amount hands him six request notes; A B sells the same to the plaintiff, giving him the request notes: the plaintiff thereupon takes two puncheons out of the store, and on application for the remainder discovers that the de fendant had, to suit of the four puncheons, and that he had such a possession as put an end to the stoppage in transitu. T. T. 1845. officer drew a circumflex over the entry in his books and wrote the Queen's Bench. word "sold." The plaintiff then filled up the request notes in his own name, and on the 2nd of August following he took out two puncheons of the whiskey. CROKER LAWDER. On the 22nd of September 1843, he sent the four other request notes to the Custom-house, and ascertained that the four remaining puncheons had been taken out of the store by the defendant under the transfer order given to him by O'Brien, and which he had lodged with the store-keeper. The practice of the trade was proved to be, for the party selling to give the party purchasing these notes in blank, and when the vendee required any of the whiskey these notes are handed to the storekeeper as his authority for the delivery. The price is paid on the faith of them, and before payment, enquiries are made of the excise officer as to all being right. Before the request note is acted on the duty must be paid, and when the note is lodged a memorandum is entered by the officer, and if a vendor give a request note to one person he would not be justified in giving a transfer order to another. Upon this state of facts the learned Judge directed the jury to find for the plaintiff. An order nisi having been obtained to set aside this verdict— Macdonogh, with whom was J. D. Fitzgerald, showed cause. These request notes are signed either by the distiller or some person authorised by him-they are taken as representing the whiskey, and the price is paid on the faith of them; and once they are so sold and delivered, the person to whom they are delivered acquires the absolute right to the whiskey: that has been frequently decided on analogous orders, and acts tantamount thereto : Zwinger v. Samuda (a). The defendant is therefore estopped, and so even if a bankruptcy intervened: Lucas v. Dorrien (b); Harman v. Anderson (c); Spear v. Travers (d); Keyser v. Suse (e). Actual delivery of the article itself is not necessary. In Chaplin v. Rogers (f) Lord Kenyon says:-"Where goods are ponderous, "and incapable of being handed over from one to another, there "need not be an actual delivery; but it may be done by that which "is tantamount, such as the delivery of the key of a warehouse in "which the goods are lodged, or by the delivery of other indicia "of property." And he adds:-"Now, here the defendant dealt "with this commodity afterwards as if it were in his actual posses (a) 7 Taunt. 263. (e) Gow. 58. (b) Taunt. 278. (d) 4 Camp. 251. (f) 1 East, 194. CROKER บ. LAWDER. "sion; for he sold part of it to another person." So here the plaintiff T. T. 1845. Queen's Bench. exercised dominion over the property, for two puncheons of the whiskey were taken out. If Burroughs' agent brought an action against Croker for the price, there would be sufficient evidence of a delivery and acceptance: Rohde v. Thwaites (a). The property here passed by the contract of sale, inasmuch as nothing remained to be done to make the contract complete-nothing to prevent the property vesting in Croker; and when the property passes, possession in law passes, therefore the defendant was a wrong-doer. This is like the case put by Tyndal, C. J., in Salter v. Woollams (b). The contract was an entire contract, and the acceptance of two of the puncheons would take the case out of the Statute of Frauds: Elliott v. Thomas (c). Swanwick v. Sothern (d) proves, that if the property passed as between buyer and seller, the original vendor's right of stoppage in transitu is gone. Here every thing was done that was essential to complete the contract-the goods were appropriated and identified the price was paid, and a part accepted, which operates as an acceptance of the whole. Baker and Napier, contra. To maintain this action the plaintiff must have the right of property, and must also have had the possession actual or constructive. In this case it was assumed at the trial that the delivery of the six permit notes signed by O'Brien, amounted to a constructive delivery of possession; the Judge held that such was their effect, and no question was left to the jury. But these permit forms are not sufficient, proprio vigore, to give a constructive possession. The cases have established that one document, namely, a bill of lading, is effective on endorsement to transfer a constructive possession in the property embraced in it, but this was decided not without much controversy: Lickbarrow v. Mason (e). Macdonogh. Our case is, that the paper taken in connection with the payment of the money, and the examination of the books, was sufficient proprio vigore to pass the property, and that was proved by the custom; and secondly, we say, that upon the facts of the case there was an attornment; and thirdly, a part delivery. Baker. As to the attornment, that was a question which should have CROKER V. LAWDER. T. T. 1845. been submitted to the jury, and it is now too late to raise it, and the Queen's Bench. plaintiff has taken a wrong direction in saying that proprio vigore they operated as a transfer. No case decides that dock warrants are as efficacious as a bill of lading; and in most of the cases relied on, there was something done by the bailee or his clerk, signifying an attornment; here there was nothing of the kind. The entry by the officer, of the word "sold," was a question for the jury whether that amounted to an attornment, and cannot now be relied on. Documents like those in this case are insufficient to give a constructive possession, and the cases have never gone further than giving this effect to a bill of lading, or at the utmost to a dock warrant: Holl v. Griffin (a); Akerman v. Humphery (b); Jackson v. Nichol (c); Townley v. Crump (d); Lackington v. Atherton (e). This case proves that a delivery order given by an unpaid vendor to vendee was insufficient to pass constructive possession, on the ground that the goods standing at the time in the name of a third person, he had, as here, the power of controlling the delivery by giving an order from himself; and to have that effect, the document must come from a person, and be of such a nature as not to be capable of being controlled or rendered ineffective consistently with the duty of the bailee; and here it appeared clearly, notwithstanding the documents relied on, that O'Brien had full power over the goods. In the cases in which it was held that delivery orders and the like not taking effect proprio vigore, when signed or endorsed by those who gave them, bound the right to stop; it was on the principle, that he had by his signature or endorsement clearly and unequivocally signified his intention to give up the property and all control over the possession; and if not so held, it would be allowing him to defeat his own written act, after a bona fide purchaser for value had been misled by it. But here there is no writing of the defendant whatever, and the evidence shows that the document relied on is a mere dominical from which the permit is to be made out. There is, therefore, no evidence to show any such intention; no such question was left to the jury, and it must rest on the question, did it operate proprio vigore, to transfer the property? They had no evidence to satisfy any jury of the two points which must concur to render possession of any document equivalent to a constructive possession of the goods, viz., that the document be binding on the bailee; and secondly, it must be dealt with in such a manner by the holder as to |