Best and Blossett, serjeants, and Holt, for the plaintiff. Lens, serjeant, and Lawes, for defendant. 1816. TOUSSAINT v. HARTOP. See the cases cited in Gurr v. Rutton, ante, p. 330. 1816. don, orders goods of B., at Manchester; B. forwards rier to London. Whilst they are on their transit, B. insolvency, carriers to stop this purpose, new invoice to LITT and Another v. CoWLEY and Others. TRO A., in Lon. ROVER for 200 pieces of cotton goods.The plaintiffs were manufacturers at Manchester, and the defendants assignees of Neale them by a car and Warner, bankrupts, who carried on business in London. In November 1815, the cotton was ordered by Neale and Co. with whom the plaintiffs hears of 4.'s dealt. The goods were delivered on the 9th of and directs the December to Messrs. Pickfords, who are carriers, them; and, for to be conveyed from Manchester to London, adhe makes out a dressed to Neale and Warner. Two days after the delivery to Pickfords, the plaintiffs were informed that Neale and Warner were in insolvent circumstances. Neale and Warner had not paid nor given bills for the goods: plaintiffs, accordingly, sent an carrier, are de- order to Pickfords, at Manchester, to stop the The carriers have an establishment at who becomes a goods. bankrupt his Manchester, and an establishment with wharfs at assignees claim to retain them: Paddington. The establishments at London and had a right to Manchester, respectively, send cach day a list of in an action of invoices of goods received at either establishment. trover against A copy of the invoice of the goods received on the transmits to the office of the carrier in London. The goods, by a mistake of the livered to A. Held that B. recover them the assignees of 4. 9th at Manchester was sent to the town establishment, by which they were informed that the goods in question, addressed to Neale and Warner, would arrive by a certain boat, and at a certain time, fn London. Previous to the arrival of the boat, the house in London received from the house in Manchester a notice, signed by the plaintiffs, by which Pickfords were directed not to deliver the goods to Neale and Warner, but to Birket and Scholefield. In consequence of this change, the names of the latter were introduced into the invoice, and the names of Neale and Warner struck out. When the package of cotton arrived, it was with the original address to Neale and Warner. No invoice was found with their address; but the invoice was made out in the names of Birket and Scholefield. The porters, imagining that a mistake had occurred amongst the clerks at Manchester, in putting the names of Birket and Scholefield in the invoice, instead of Neale and Warner, delivered it to the latter on the 24th of December. Neale and Warner became bankrupts ; the defendants were chosen assignees, and sold the goods on the 5th of March following: this action was brought to recover the value. Shepherd, S. G. and Parke, for the plaintiffs, contended-1. That they had a clear right to stop in transitu: the goods were on their transit when the countermand was given to the carriers; that countermand, followed as it was with an actual attempt on the part of the Pickfords to revest the property in the plaintiffs, was a sufficient re-possession to enable them to maintain trover. 2. The mistake of the porter in delivering the goods could not defeat the right which the plaintiffs had previously exercised to stop them. If the servant of A. deliver goods to B. by mistake, which are intended 1816. LITT and Another V. COWLEY and Others. 1816. LITT and Another v. COWLEY for C., A. may recover against B. in an action of trover. Best, serjeant, contrà.-The goods came to the and Others. possession of the vendee by a regular transit. The right of stoppage in transitu is an equitable right; but it cannot countervail a legal possession. If the servant of Pickfords have made a mistake, the plaintiffs have their remedy against Pickfords. GIBBS, C. J.-The law, with regard to stoppage in transitu, has undergone several alterations at different periods. It has never been doubted but that the goods vested in the vendee, as soon as they left the original owner's possession: but it has always been equally certain, that the owner might retake his goods, on their passage, by any means short of felony, if he had subsequent grounds for believing that the purchaser would not perform his part of the contract by paying for them. The consequence of this conflicting doctrine was, that the property was left to depend upon the discretion of the carrier; and it thus gave rise to a great deal of fraud and violence. In process of time, a principle of greater equity was adopted; and the carrier himself became liable, whenever his conduct appeared to be that of a wrong doer. But there is nothing in this case which fixes Messrs. Pickford and Co. with any thing but an unavoidable mistake. Under these circumstances, I think, the plaintiffs have been sufficiently in time in revoking their first orders they must, therefore, recover from the assignees of the bankrupt such portion of the sion of bankrupt. 1816. goods as remained undisposed of after the commisBut as the counsel for the defendants seem to entertain doubts upon my in- and Another terpretation of the law upon this subject, I have LITT 2. COWLEY no objection to the point being brought before the and Others. the Court upon motion. Solicitor General and Parke, for plaintiffs. This case was moved in the ensuing term, and a rule to shew cause was granted, &c. But, upon hearing the plaintiffs' counsel, the Court discharged the rule, and unanimously adopted the opinion given by the Lord Chief Jus- For cases on the right of to 105. |