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. 1815. BACK and v. Gooch. Plaintiffs nonsuited. Lens, serjeant, and Spankie, for plaintiffs. The Solicitor General and Onslow, serjeant, for defendants. [Attornies, Windus and Holloway.—- Abbott.] Such estoppel, it seems, applies only to the petitioning creditor, 4 East, 235. Therefore, if a commission be sued out upon such a deed, upon the petition of a creditor who has not concurred in it, and who, together with others who had concurred in it, was chosen assignee, it is no objection to an action brought by them, as assignees, that some of them had concurred in such deed. Tuppendall and others Burges, 4 East, 230. An as VOL. I. V. 1815. June 24. An order sent by the vendor to the wharfinger to deliver the goods to the vendee, is sufficient to pass the property to the vendee, provided nothing remains to be done but to make the delivery; but if any thing remain to be done, for ex ample, weigh ing, &c. the property does not pass, and the right of stoppage in transitu is not defeated, till that be done. WITHERS and Others v. Lys and Another. THIS HIS was an action of trover brought to reco ver a quantity of rosin. The plaintiffs had sold, through the medium of their broker, thirty tons of rosin to one Bromer, before his bankruptcy. The broker's note was as follows: "Messrs. Withers and Co. Sept. 2d, 1812.I have this day sold to David Bromer thirty tons of London made rosin, more or less, at 13s. per cut. lying in mats at the wharf of Lys and Co. payment by a bill at six months."-Signed by the broker. 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 plaintiff's gave them notice not to deliver it. No bill of exchange had been given by Bromer. 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 had advised an action, and recommended the case to be tried upon admissions. 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. 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. that the sale of goods passes them by force of the contract, and delivery is not necessary to accomplish the title of the vendee against any but the vendor. Whilst the goods remain in the hands of the vendor, he has a lien upon them till he is paid. Our oldest law books, following therein the letter of the civil law, consider the payment of the price, (day not being given) as a condition precedent implied in the contract of sale. Hob. 41. But previous to the actual delivery, or what is equivalent, the law avails itself of every circumstance to put the unpaid vendor in the repossession of his property, upon the insolvency of the vendee. The vendor, therefore, has a right, for just cause, to retract the intended delivery, and to resume possession of his goods by any means not criminal. The civil law, with respect to the right of lien on goods, extends farther than the law of England; by which, as we have above stated, the lien, giving the right of stoppage in transitu, is gone, where possession actual or constructive has been taken; but the lien of the civil law prevailed, even against actual possession. Quod vendidi non aliter fit accipientis quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus, emptori sine ulla satisfactione. Dig. lib. 18. tit. 1. l. 19. There is a difference, however, between this right, and the right to rescind the contract: the former may be exercised by the vendor against the will of the vendee; the latter requires the consent and concurrence of both parties. To assist the equity of this right, the cases turn on very nice distinctions. The first consideration will be, by whom this right may be exercised. 2d, Under what circumstances, after the goods have passed out of the possession of the vendor. 3d, What shall defeat the right. I-By whom this right may be exercised. 1st, The vendor, though he purchase the goods of another for commission, may stop them in transitu. 3 East, 93. So, the consignor of goods for sale, on the joint account of himself and the consignee, in the event of the insolvency or bankruptcy of the latter. 6 East, 371. But the mere surety for the payment of the price by the vendee, though he may have accepted bills drawn upon him by the consignee for that purpose, cannot. 1 B. and P. 563. 1815. WITHERS v. Lys. |