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1815.

TRON

Thursday,

CRAVEN and Others v. RYDER.
Dec. 14,
When the

TTROVER to recover the value of some sugar. master of a ship receives

On 5th May, 1815, the plaintiffs entered goods on board into a contract with Messrs. Bogle and French, and gives a receipt for them, to sell them, at a credit of two months, twentynot to deliver four hogsheads of Hamburg loaf sugar, to be the bill of lading, except

delivered by the plaintiffs - free on board the to the person George, Captain Ryder.On the 11th of May, the receipt in Bogle and French sold the sugars to Caldas, sells goods to who paid for them; and Caldas subsequently vered free on sold them to Bene and Co. of Hamburg. The cular ship: he shipping order was in these terms, “ To the comloads them on manding officer on board the George, Capt. Ryder ; takes a receipt receive the undermentioned goods, for and on acfrom C., which purports that count of Cruven and Co.” When the goods were received for shipped, a receipt was brought back from the deand of A." "Before fendant's mate in these words, “Received, 15th of the delivery, May, on board the George, Captain Ryder, the the goods to undermentioned sugars for Hamburg, for and on D., who, without the know. account of Craven and Co.- Robert Ramsay, sent of A., ob. mate.” It was in evidence that the usual form of lading from C. a lighter's note was not to add to the receipt, “for

and on account of the party;" but a general note Held, that A. only was given with the goods. The lighterman stop the goods in this case had introduced, within a few months, a in transitu, and that C. liaving

form which was peculiar to himself, and the mate Tefused to de. had signed it on account of the defendant, seemthe production ingly without adverting to the contents. On the is answerable' 17th of May, Bogle and French stopped payment, to A. in an action of trover. A.'s right would have been the same, although the receipt had not contained the restrictive words, but had been in the general form.

B. becomes insolvent.

1815.

and on the 23d the lighterman demanded the goods on the plaintiffs' account; at the same time he ex

CRAVEN bibited the mate's receipt, the Custom-house order and Others to re-land, and tendered the freight and primage

RYDER. to Hamburg. The defendant refused to deliver up the goods, on the ground that he had already' executed a bill of lading to Caldas.

Lens, for defendant, contended, that there was no pretence for a stoppage in transitu. After the delivery of the sugar on board the defendant's vessel, the property had been twice changed, and the sugars no longer remained in their first condition. The right to stop in transitu, however equitable in principle, must have a limit; there was no case where a sale has been made bona fide, and after a delivery of the goods, in which the right of stoppage in transitu has been admitted. The lighterman’s note was capable of explanation, and only meant to shew that the plaintiffs had complied with their contract with French and Bogle, in “ delivering the goods free on board.” The sugars, indeed, might have been stopped in their way to French and Bogle ; but how could 'the title of Caldas be impeached? The plaintiffs had no intention of exporting the goods; they were put on board by the direction of French and Bogle, and when once shipped in order to be sent to Hamburg, they became the property of Bene and Co.

Dallas, Justice.--I am of opinion that this is a restrictive receipt. The Captain takes them on account of the plaintiffs. I think Craven and Co.

1815. never parted with their right of stoppage in tran

situ. Their title was never out of them. The CRAVEN and Others sugars were sold to Caldas on the 11th of May,

and they were in the plaintiffs' warehouse till the RYDER.

14th.

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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 Craten 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.

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In the ensuing term, Lens, the case of Lickbarrow v. Maserjeant, moved, that the ver son, 2 T. R. 63., and cited 6 dict should be set aside, and a East, 21, in notis, for the sake new trial granted, on the of Mr. Justice Buller's judgground that the plaintiffs' right ment, as embracing all the law to stop the goods in transitu on this subject, and deciding was gone, after there had been

the point. an absolute sale to French and Lord Chief Justice Gibbs Co., and two other subsequent observed, that the usage and sales. He relied upon the ar custom of merchants was, that ' guments which he had urged the person who was in possesat the trial, and referred to sion of the receipt should alone

1815.

CRAVEN and Others

RYDER.

be entitled to the bill of lading; full report, 2 Marshull's Rep. and that the captain ought not

127. to have given the bill of lading, except to the person who could The case of Lickbarrow produce the receipt in exchange. Mason, both in its principle Consequently, the person hold.

and circumstances, is very dising the receipt had a control tinguishable from the above over the goods, till he had ex case. That case determined, changed it for the bill of lading and the decision is undoubtedly His Lordship added, that the of the first importance to complaintiffs had unquestionably merce, that the consignee of not abandoned their right of goods, by the assignment of stoppage in transitu, in case of the bill of lading to a third the insolvency of the pur. person for a valuable consichasers, until the goods were deration, might confer an ab. delivered ; and that, although solute right and property upon French and Co. might sell the such assignee, indefeasible by sugars again, the plaintiffs any claim on the part of the might still reserve to them consiguor; subject, however, selves the right of stoppage to this restriction, that the asThat the defendant, therefore, signment should be made with gave the bill of lading to Cal- good faith to all parties, and das in his own wrong, because, without notice to the assignee according to usage and com that the goods were not paid mon sense, he should not have

for. In Cuming v. Brown, y delivered it without taking the East, 506, with a view to a receipt in exchange." I do

more liberal commercial polinot,” said his Lordship,“ rely cy, the principle in Lickbarrow maioly on the particular form v. Mason was extended. In of the receipt (though that is that case it was determined, not to be laid out of our con that if the assignee of the bill sideration); but I think that if of lading took the assigoment, the receipt had been in the bona fide, without notice of usual form, its effect would

any such circumstances as have been the same. The ought, in fairness to have tied ground of my opinion is, that up the hands of the consignee the original seller had never from a transfer, he acquired a parted with his right of stop- good title against the conpage in transitu.The rest of signor; and that therefore, althe Court concurred. Rule though he knew at the time refused. See, for a more that the consignor had not ob

1815. tained a money payment for title was given by the plain

the goods, but had taken the tiffs to French and Co.; as it CRAVEN consignee's acceptance pay was a sale, after the ordinary and Others able at a future day, not yet manner, of goods to be for

arrived, the consignor, never warded to order, and as the RYDER.

theless, could not defeat his goods were on their transit, it title under the assignment, nor should seem, upon the prinstop the goods in transitu upon ciple of all the cases, that the the insolvency of the original vendees could not by an interconsignee. But, in the pre mediate sale, without the prisent case, Craven and Co. are vity and assent of the plainmerely directed to deliver the tiffs, though for a valuable congoods in question free on board sideration, defeat the right of a particular ship. They are stoppage in transitu. They not directed to transmit, nor could not by a sub-contract do they in fact transmit, any give to a third person any bill of lading, or any instru larger right and title than that ment capable of indorsement which they themselves posand transfer, to French and Co. sessed. In a word, as there Laying the restrictive nature was no bill of lading in the of the receipt given by the de case, no negotiable and transfendant out of the question, ferable instrument put into and supposing it had been in the possession of French and the ordinary manner, omitting Co. by the plaintiffs, which, acthe words, for and on account cording to the custom of merof the plaintiffs,) it may be chants, was capable of creating well to see how the case would

a property in another by inthen stand. There is no doubt dorsement, delivery, or transthat if the plaintiffs had trans- mission, the transaction was to mitted a bill of lading to be viewed in the ordinary light French and Co., and French of a sale of goods, which, and Co. had assigned it to having been sold by the origiCaldas for a valuable consi. nal vendee to a third person, deration, and without notice previous to delivery, and withto Caldas of any circumstance out the assent of the vendor, which might have impeached the latter had a clear right to his title, the right of stop- stop in transitu upon the insol. page in transitu would have

vency of the first purchaser. been superseded, upon the au See note page 20, where the thority of the above

cases of stoppage in transitu no such transferable are collected and examined.'

cases.

But as

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