1815. CRAVEN and Others 2. RYDER. The never parted with their right of stoppage in tran- His Lordship left the case to the Jury, and they expressed themselves of opinion, That it was contrary to the course of business, and to the defendant's duty, to give up the bill of lading without the receipt; that the defendant had received the sugars on account of Craven and Co., and had given a restrictive receipt accordingly. Verdict for plaintiffs. Solicitor General, Vaughan, serjeant, and Marryat, for plaintiffs. Lens and Best, serjeants, and Campbell, for defendant. [Attornies, Brown -Nind.] In the ensuing term, Lens, serjeant, moved, that the verdict should be set aside, and a new trial granted, on the ground that the plaintiffs' right to stop the goods in transitu was gone, after there had been an absolute sale to French and Co., and two other subsequent sales. He relied upon the arguments which he had urged at the trial, and referred to the case of Lickbarrow v. Mason, 2 T. R. 63., and cited 6 East, 21, in notis, for the sake of Mr. Justice Buller's judg ment, as embracing all the law on this subject, and deciding the point. Lord Chief Justice Gibbs observed, that the usage and custom of merchants was, that the person who was in possession of the receipt should alone 127. be entitled to the bill of lading; full report, 2 Marshall's Rep. The case of Lickbarrow v. Mason, both in its principle and circumstances, is very distinguishable from the above case. That case determined, and the decision is undoubtedly of the first importance to commerce, that the consignee of goods, by the assignment of the bill of lading to a third person for a valuable consideration, might confer an absolute right and property upon such assignee, indefeasible by any claim on the part of the consignor; subject, however, to this restriction, that the assignment should be made with good faith to all parties, and without notice to the assignee that the goods were not paid for. In Cuming v. Brown, 9 East, 506, with a view to a more liberal commercial policy, the principle in Lickbarrow v. Mason was extended. In that case it was determined, that if the assignee of the bill of lading took the assignment, bona fide, without notice of any such circumstances as ought, in fairness to have tied up the hands of the consignee from a transfer, he acquired a good title against the con signor; and that therefore, although he knew at the time that the consignor had not ob 1815. CRAVEN and Others V. RYDER. 1815. CRAVEN and Others v. RYDER. tained a money payment for the goods, but had taken the consignee's acceptance, payable at a future day, not yet arrived, the consignor, nevertheless, could not defeat his title under the assignment, nor stop the goods in transitu upon the insolvency of the original consignee. But, in the present case, Craven and Co. are merely directed to deliver the goods in question free on board a particular ship. They are not directed to transmit, nor do they in fact transmit, any bill of lading, or any instrument capable of indorsement and transfer, to French and Co. Laying the restrictive nature of the receipt given by the defendant out of the question, and supposing it had been in the ordinary manner, (omitting the words, for and on account of the plaintiffs,") it may be well to see how the case would then stand. There is no doubt that if the plaintiffs had transmitted a bill of lading to French and Co., and French and Co. had assigned it to Caldas for a valuable consideration, and without notice to Caldas of any circumstance which might have impeached his title, the right of stoppage in transitu would have been superseded, upon the authority of the above cases. But as no such transferable title was given by the plain. tiffs to French and Co.; as it was a sale, after the ordinary manner, of goods to be forwarded to order, and as the goods were on their transit, it should seem, upon the prin ciple of all the cases, that the vendees could not by an intermediate sale, without the privity and assent of the plaintiffs, though for a valuable consideration, defeat the right of stoppage in transitu. They could not by a sub-contract give to a third person any larger right and title than that which they themselves possessed. In a word, as there was no bill of lading in the case, no negotiable and transferable instrument put into the possession of French and Co. by the plaintiffs, which, according to the custom of merchants, was capable of creating a property in another by indorsement, delivery, or transmission, the transaction was to be viewed in the ordinary light of a sale of goods, which, having been sold by the original vendee to a third person, previous to delivery, and without the assent of the vendor, the latter had a clear right to stop in transitu upon the insolvency of the first purchaser. See note page 20, where the cases of stoppage in transilu are collected and examined... 1815. THIS GROSS and Another v. LA PAGE.. Friday, Dec. 15. A. contracts to sell to B. HIS was a special action on the case to re- the sale of some hemp. hemp; and the ship on board of which the hemp is to be conveyed, is to sail from St. porter of the stat. 10 and 11 W. 3. 6., it is illegal for any subject of carry on a On the 9th of June, 1815, the plaintiffs sold to the defendant 25 tons of sound, Petersburgh, clean hemp, warranted to be of a good and merchantable quality, at 55l. per ton. The ship, on board of which the hemp was to be conveyed, was to sail from Petersburgh before the 31st of August, and the hemp was to be taken according to the this realm to landing scale when the vessel arrived. The hemp trade with arrived in July, 1815, and the price had fallen he be a memconsiderably before its arrival. The name of Mr. ber of the fel Metcalfe, who was the broker, had been used for merchants the purpose of the hemp passing the landing scale. It stood in the London Docks in his name up to the 21st of August. But the plaintiffs were the importers of the hemp. Best, serjeant, and F. Pollock, for defendant, objected, that the plaintiffs, who were the importers of the hemp, were not members of the Russian Company. They relied on the 10 and Wm. 3. c. 6., by which the trade to Russia confined to the Fellowship of the Russian Company, and to such persons as were admitted of Russia, unless lowship of trading to those coun tries. A. is not a member of the Company; but the hemp is protected at the landing scale, and in the docks, by using the name of a broker, who fellowship. Quære, if this was one of the be such an il was of it, as a defence to an action brought against him by A. for not fuifilling his agree ment. 1815. GROSS and v. LA PAGE. that fellowship. The plaintiffs had been trading in defiance of that act: the bill of lading shewed that the hemp was imported by them. But the defendant had a right to expect that they had obtained the freedom of that company, otherwise the hemp might be forfeited or seized. Under such circumstances, the defendant could not be compelled to take it. The Solicitor General, and Marryat, for the plaintiffs. It is no objection to the contract. The act may prohibit the plaintiffs from trading to Russia, not being members of the Company; but the importation of the article is not therefore prohibited. After the commodity arrives, the shipper, though not free of the Company, may sell it, though he could not legally import it. It is not the less a subject of contract because it is illegal to import it. The parties themselves may be under disabilities; but the article is of free trade. DALLAS, Justice.-I confess I am much struck with the objection which has been made by the defendant's counsel. The importation is prohibited to all but members of the Russian Company. If imported by unlicensed persons it is seizable. The amount of the objection is, that the defendant cannot be compelled to accept an article which might be liable to seizure in the hands of a purchaser. I will not stop the cause, but I will save the point. The plaintiffs had a verdict on the merits. |