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those against whom the deed is fraudulent. The principle of Bamford v. Baron was this, that those who assent to a deed shall not be permitted to impeach it as fraudulent, and if not fraudulent, it is no act of bankruptcy. I say nothing as to the objection that the trustees did not execute the deed. It is besides the present question ; but the petitioning creditor having assented to that deed as far as it went, cannot now object to such deed as fraudulent.

Plaintiffs nonsuited.

Lens, serjeant, and Spankie, for plaintiffs.

The Solicitor General and Onslow, serjeant, for defendants.

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Such estoppel, it seems, ap- signment by partners, by deed, plies only to the petitioning of all their property, in trust creditor, 4 East, 235. Thère. · for their creditors, with a pro. fore, if a commission be sued viso to be void, if all their cre. out upon such a deed, upon ditors for above 201. should the petition of a creditor who not execute, or a commission has not concurred in it, and of bankrupt should issue withwho, together with others who in a certain time, is an act of had concurred in it, was chosen bankruptcy. Dutton v. Morassignee, it is no objection to rison, i Rose. Cases in Bankan action brought by them, as ruptcy, 213. And such a deed assignees, that some of them is operative, though it conhad concurred in such deed. . tained a proviso to be void if Tuppendall and others v. the trustees think fit. 4 East, Burges, 4 East, 230. An as. 230.

Vol. I.

1815.

Jane 24.

Withers and Others v. Lys and Another.

THERS

vided nothing follows:

An order sent THIS was an action of trover brought to recoz by the vendor to the wharf. yer a quantity of rosin. inger to deli. ver the goods to the vendee, The plaintiffs had sold, through the medium of is sufficient to pass the pro- their broker, thirty tons of rosin to one Bromer, perty to the Vendee, pro. · before his bankruptcy. The broker's note was as remains to be follows: done but to make the deli. very; but if “ Messrs. Withers and Co.: Sept. 2d, 1812.any thing remain to be I have this day sold to David Bromer thirty tons done, for example, weight of London made rosin, more or less, at 13s. per ing, &c. the

ty does cwt. lying in mats at the wharf of Lys and Co. not pass, and

payment by a bill at six months.”—Signed by the stoppage in broker. transitu is not defeated, till that be done.

On the 21st of September the plaintiffs sent an order to the defendants, who were wharfingers (and which order they entered in their books) to weigh and deliver the rosin ; upon which they gave notice to Bromer that they had received such order from the plaintiffs. Shortly afterwards Bromer became insolvent, and the rosin still lying at the wharf, the plaintiffs gave them notice not to deliver it. No bill of exchange had been given by Bromer.

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The question was, whether delivery had taken place. There had been a suit in Chancery relative to the property, and the Master of the Rolls

1815.

had advised an action, and recommended the case to be tried upon admissions.

WITHERS

Lys.

The Solicitor General and Taddy, for the defendants, contended, that in the present case the property passed to Bromer, and that the plaintiffs, the vendors, had lost their right of stoppage in transitu. When the order was sent to the wharfingers, and they entered it, the property was immediately divested out of the plaintiffs. It is true, indeed, that the order was to weigh and deliver, &c. But this would not bring the case within the principle of those cases, which had been decided upon the ground that weighing was necessary, in order to ascertain and distinguish the quantities which the vendee claimed. Here the rosin was lying in mats; it had been sold as thirty tons, more or less. The weighing, therefore, was not necessary to constitute the delivery, because the mats were to be delivered, whether they contained more or less. It did not appear that more than thirty tons were in the possession of the wharfingers. The contract passed the whole of the rosin; though of course, till the rosin was weighed, it was uncertain for what sum the bill of exchange was to be drawn. They submitted, moreover, that in the present case a question might arise, and had indeed been largely discussed in Chancery, on the statute of 1 James 1. Was not this rosin in the visible ownership and disposition of the bankrupt?

GIBBS, C. J.-I consider this case as having already been decided in principle, both in the King's Bench and Common Pleas; and whatever difference

1815.

WITHERS

v. Lys.

there may be between those cases and the present, there is no essential distinction. The principle upon which both courts have decided is this, that the order sent by the vendor to the wharfinger to deliver the goods, is sufficient to pass the property to the vendee, provided nothing remains to be done but to make the delivery. If it be necessary by the terms of the contract, or by the order to the wharfinger, that any thing should be done previous to the delivery, the transfer is not complete till that thing be done. It is impossible to say, in the present case, that something was not to be done. The order was to weigh and deliver ; that act, therefore, which was to precede delivery, not having taken place, the property did not pass to Bromer. The statute of James the First has no application in the present case. The delivery not being perfected, it is impossible to say that the goods were in the visible ownership, or under the order and controul of the bankrupt.

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1815.

WITHERS

Lys.

that the sale of goods passes sit, aut satis eo nomine factum,
them by force of the contract, vel etiam fidem habuerimus,
and delivery is not necessary to emptori sine ulla satisfactione.
accomplish the title of the ven. Dig. lib. 18. tit. 1. 1. 19.
dee against any but the vendor. There is a difference, how-
Whilst the goods remain in the ever, between this right, and
hands of the vendor, he has the right to rescind the con-
a lien upon them till he is paid. tract: the former may be ex-
Our oldest law books, follow. ercised by the vendor against
ing therein the letter of the the will of the vendee; the
civil law, consider the pay- latter requires the consent and
ment of the price, (day not concurrence of both parties.
being given) as a condition To assist the equity of this
precedent implied in the con- right, the cases turn on very
tract of sale. Ilob. 41. But nice distinctions. The first
previous to the actual delivery, consideration will be, by whom
or what is equivalent, the law this right may be exercised.
avails itself of every circum- 2d, Uoder what circumstances,
stance to put the unpaid ven after the goods have passed
dor in the repossession of his out of the possession of the
property, upon the insolvency vendor. 3d, What shall defeat
of the vendee. The vendor, the right.
therefore, has a right, for just
cause, to retract the intended to By whom this right may be
delivery, and to resume pos-

exercised. . session of his goods by any 1st, The vendor, though he means not criminal. The civil purchase the goods of another law, with respect to the right for commission, may stop them of lien on goods, extends far- in transitu. 3 East, 93. So, ther than the law of England; the consignor of goods for sale, by which, as we have above on the joint account of himself stated, the lied, giving the and the consignee, in the event right of stoppage in transitu, of the insolvency or bankruptcy is gone, where possession ac- of the latter. 6 East, 371. tual or constructive has been But the mere surety for the taken ; but the lien of the civil payment of the price by the law prevailed, even against ac- vendee, though he may have tual possession. Quod tendidi accepted bills drawn upon him non aliter fit accipientis quam by the consignee for that pursi aut pretium nobis solutum pose, cannot. 1 B. and P. 563.

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