Queen's Bench.

CROKER บ.

fix the bailee with an actual or constructive attornment: Whitehead T. T. 1845. v. Anderson (a); Withers v. Lys (b). A party wishing to defeat the right of stoppage in transitu, should have both the property and the possession; here the request note gave only the right of property, and the memorandum by the officer of the Custom-house made no change in that right: Dixon v. Yates (c); Bentall v. Burn (d); Jones v. Dwyer (e); Corvalho v. Burn (ƒ).

Taking possession of part is not taking possession of the whole; it is always a question for the jury: Smith's Mercant. Law, 506.

Macdonogh, in reply.

It was not required by the defendant's Counsel to be left to the jury. If the custom of merchants had been proved, the evidence as to custom is conclusive, because it was proved and admitted as true. No question was raised by the defendant, but he contended that at any time up to payment there was a right of stoppage in transitu. O'Brien gives six delivery orders; they are sent into the world; Lawder purchases, and sells to Burroughs, and receives two bills of exchange for value delivered in whiskey. It is the custom of merchants to purchase these transfer orders and get the goods, and if the goods be bought, and consideration paid, and notice given to the custodee, it is determined by that transfer: 6 G. 4, c. 94 (Factors' Act) [CRAMPTON, J. Your property is not disputed.—BURTON, J. The question is, had you such a possession as put an end to the stoppage in transitu ?]

PENNEFATHER, C. J.

We do not think that a sufficient difficulty exists in this case to require a postponement of it. My Brother Crampton declines giving any opinion, as he did not hear the argument; but the other Members of the Court agree in opinion that the verdict was right, and that the question was properly put to the jury.

The question appears to have arisen upon the legality of the custom stated and proved, and concerning which there was no contrariety of opinion; that was the custom of buying and selling upon these transfer orders. It appears that in January 1843 a number of puncheons of whiskey were lodged in the Custom-house in bond in the name of Timothy O'Brien, who sold the same to the defendant Lawder. On the 25th of May following, the defendant sells to a person of

LAWDER.

CROKER

v.

LAWDER.

T. T. 1845. the name of Burroughs six puncheons, for which he gets Burroughs's Queen's Bench. acceptances, and thereupon hands to him six request notes signed by O'Brien. Burroughs sells to the plaintiff the same whiskey on the 29th of June, giving him the request notes. Before paying his money, the plaintiff enquires at the Custom-house if all was right; the people at the Custom-house having actual custody of the goods, knew there that Croker had purchased them. In consequence of that enquiry, an entry is made in the Custom-house books, and a circumflex drawn over it; and on that entry in August the plaintiff takes out two puncheons under a permit order. It was not convenient to take out the whole; and when in September the plaintiff applies for the remaining four puncheons, he discovers that a stoppage had taken place at the suit of Lawder, and that they were taken out by him. Lawder, when he sold to Burroughs, took from him two bills of exchange which had been dishonoured; but that did not give Lawder an original right of stoppage in transitu, because, before this transaction took place, the plaintiff had become the purchaser of the puncheons, and had paid for them, he was therefore a purchaser for valuable consideration; and, according to the custom of the trade, he could not be divested of that property which had become so vested in him as a purchaser; although O'Brien might have reverted back to his original right of stoppage in transitu, he could not do so to affect the rights of third persons; the right therefore of stoppage in transitu, so set up by O'Brien or Lawder, could not have taken place without a direct fraud upon the plaintiff. We may assume that the custom of the trade was proved at the trial, for the Judge has reported no contrariety of evidence, and we concur in the view taken by him at the trial, and see no reason why the verdict should be quarrelled with.

BURTON, J., concurred.

PERRIN, J.

There was no controversy at the trial as to the custom, and I was not called on to leave that question to the jury. Upon the 11th of September, the defendant having neither property or possession in these goods, obtained from O'Brien, in fraud of the transfer order given by him, the delivery order. O'Brien had no right, and Lawder has no right of stoppage in transitu. The facts not being disputed, I was of opinion that the jury ought to find for the plaintiff.

Cause allowed with costs.

NOTE-Haig v. Wallace, 2 H. & B. 671, was not reported at the time of the argument of the above case.

M. T. 1845.

Rev. Exch.

THE QUEEN

v.

HUGH M'CULLON and PATRICK M'CULLON.

(Revenue Exchequer.)

CERTIORARI-Jebb, for the Crown, moved that the decision of the magistrate in this case be quashed, and that the case be sent back to him to re-hear, and decide the same on the merits.

66

Nov. 22.

An information being exhibited before a magistrate against two parties under the 1 & 2 W. 4, c. 55, s. 5, for that a certain mill, they did keep and did permit

to be received

into it certain malt, the du

ties of which

had not been paid; and the

evidence ad

duced to support the infor

mation having proved that the mill was the property and kept by one of the two parties only. The magistrate

This was an information exhibited on the 21st of December 1844 by an officer of excise, before one of her Majesty's Justices of the Peace for the county of Tyrone, against the defendants, for recovery of a penalty of £30 alleged to have been incurred by them under the provisions of the 1 & 2 W. 4, c. 55, s. 5, "for that they, the said "Hugh M'Cullon and Patrick M'Cullon, did keep a mill for the "grinding of corn grain at Glearone in the said county, and did, on "the 30th day of November 1844, receive, and permit and suffer to "be received into and deposited in the said mill a certain quantity "of malt illegally made, and the duties whereon had not been fully "paid or secured," &c. The magistrate had dismissed the case. The return set forth fully the information, appearance of the parties before the magistrates, &c., and then stated:-"And it being now here contended on the part of the said Hugh M'Cullon and "Patrick M'Cullon that they were not guilty of the said offence, dismissed the “and having heard Robert Richardson, officer of excise, a credible case. On cer"witness in this behalf, and he the said Robert Richardson having Court, Held, "produced the registry books, wherein it appeared that Hugh that the infor"M'Cullon was the registered proprietor of said mill, and not supported by "Patrick M'Cullon, as stated in the information or complaint, which "being duly conducted by me the said Justice, and it now here "appearing that Hugh M'Cullon was alone guilty of the offence "charged against him and Patrick M'Cullon jointly, and that on "such complaint I could not convict one of the said parties; for that reason I do dismiss the case. Hugh M'Cullon appearing (from the 'registry books produced by the said Robert Richardson, officer of “excise, and which books are lodged in the excise office in the town "of Gortin) to be the registered proprietor, and therefore acquit the "defendants," &c.

66

tiorari in this

mation was not

the evidence,
and that the
decision of the
magistrate
was correct.

M. T. 1845.
Rev. Exch.

Jebb, with whom was Smyly, contended that the decision of the magistrate was erroneous. That on the hearing of an information THE QUEEN or complaint against two or more persons jointly for a penalty imposed by any excise law on every person committing the offence by which the penalty is incurred, it is competent for the Court to convict one or more of the defendants, and to acquit the others. The 7 & 8 G. 4, c. 53, s. 70, expressly gives that authority.

บ. M'CULLON.

A. Maley, against the motion.

This is an information against the defendants for an offence alleged to have been committed in a certain mill belonging to both defendants. Was that information sustained by the evidence? A totally different state of facts was proved-namely, that in another mill, a mill belonging to one of the defendants, certain malt was found. The section says, that every person keeping a mill, who shall permit any malt illegally made to be deposited in it, shall forfeit £30. The defendants have this information exhibited against them for keeping a mill; it was shown they did not keep a mill. How, then, could the magistrates have decided otherwise than they have done, by dismissing that complaint and acquitting the defendants on that charge? [PENNEFATHER, B. The information alleges that the defendants have incurred a penalty for an offence committed in a mill kept by two persons, and that is attempted to be supported by evidence of an offence committed in a mill kept by another person: no doubt an information may be exhibited against two persons and one only be convicted; but this is like a case where a party is indicted for a burglary committed in a house belonging to A and B, and the evidence shows that the house belonged to another person, C; in such a case the accused must be acquitted.]-If the magistrates had convicted the defendant in this case, and next day an information for the same offence were exhibited against him as the person keeping this mill, he could not plead that conviction in bar to the latter information against himself.

PENNEFATHER, B.

The reasoning of the magistrate is too general; but in the conclusion at which he has arrived we think he is correct.

No rule on the motion.

M. T. 1845.
Rev. Exch.

THE QUEEN v. WILLIAM LUNDY.

CERTIORARI-Jebb, on the part of the Crown, moved that the decision of the Assistant-Barrister of the county Mayo in this case be quashed, and that the case be sent back to the magistrates of the Petty Sessions of Foxford, in said county, to take the necessary steps to enforce the penalty of £50 in which they had convicted the defendant.

This was an information exhibited against the defendant before the magistrates for the recovery of a penalty of £200 alleged to have been incurred by the defendant, for having in his custody and possession a large quantity of spirits without a proper permit, under the provisions of the 2 W. 4, c. 16, s. 10.

The case having been heard before the magistrates at the Petty Sessions of Foxford, on the 19th of October 1844, in the presence of the defendant, they adjudged that the defendant had forfeited the sum of £200, which they thereby mitigated to the sum of £50 pursuant to the statute. From this decision the defendant appealed to the Quarter Sessions held at Ballina, on the 13th of January 1845, when it was adjudged that the conviction should be reversed without costs.

Nov. 22.

The Court of Quarter Sessions, on appeal under the 7 & 8 G. 4, c. 53, having reversed the judgment of conviction of the magistrates at Petty Sessions, on an informa

tion exhibited

before them for an alleged

breach of the excise laws; ings were rethe proceedmoved into this Court by certiorari.

The return, which was made by the Clerk of the

Peace, and purported to

be a full return of all the proceedings and documents in

the case, did

any of the pre

83rd section of

The certiorari directed to the Assistant-Barrister, Justices of the Peace and Clerk of the Peace, for the county of Mayo, commanded them "to return into the Court of Exchequer the information, not mention "together with the judgment and conviction of, &c., two of her liminaries re"Majesty's Justices of the Peace for the said county, together with quired by the "all notices and all proceedings, and the names of and evidence the 7 & 8 G. given by the several witnesses examined before you the said Assist- 4, c. 53, to be performed by "ant-Barrister and Justices, on the hearing of an appeal by the said the appellant, "William Lundy against the said conviction, &c., with all things tice of appeal "touching or relating thereto, and to the quashing of the said directed to the "conviction, together with the judgment or order pronounced by the Petty Sessions, which "you for the purpose," &c. was set out,

66

except a no

Chairman of

To this writ the Clerk of the Peace returned the information, but which did

not state that

the appellant was a party aggrieved; neither did the return state that the parties appeared, nor that the Court of Appeal decided upon the same evidence as that given below, nor upon any evidence. The Court, although it held this return to be imperfect, refused to quash the judgment of the Quarter Sessions so as to set up the original conviction, or to send back the case to the Quarter Sessions, it being admitted by the Crown that the parties appeared, and that evidence was given.