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1815.

Thursday,
Dec. 14.

When the

master of a

ship receives

CRAVEN and Others v. RYDER.

ROVER to recover the value of some sugar.

TRO

On 5th May, 1815, the plaintiff's entered goods on board into a contract with Messrs. Bogle and French, and gives a re

ceipt for them, to sell them, at a credit of two months, twenty

it is his duty

the bill of

lading, except

who can give

exchange. A.

B. to be deli.

board a parti

board, and

not to deliver four hogsheads of Hamburg loaf sugar, to be delivered by the plaintiff's "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 acpurports that count of Craven and Co." When the goods were received for shipped, a receipt was brought back from the deand on account fendant's mate in these words, "Received, 15th of the delivery, May, on board the George, Captain Ryder, the undermentioned sugars for Hamburg, for and on out 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 uote

from C., which

the goods were

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of A." Before

B. had sold

the goods to

D., who, with

ledge and con

tains a bill of

B. becomes

insolvent.

is entitled to

that C. having

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 form which was peculiar to himself, and the mate refused 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,

liver them on

of the receipt,

to A. in an ac

tion 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.

and on the 23d the lighterman demanded the goods on the plaintiffs' account; at the same time he exhibited the mate's receipt, the Custom-house order to re-land, and tendered the freight and primage 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.

CRAVEN

and Others

2.

RYDER.

1815.

CRAVEN

never parted with their right of stoppage in transitu. Their title was never out of them.

The

and Others sugars were sold to Caldas on the 11th of May, and they were in the plaintiffs' warehouse till the 14th.

2.

RYDER.

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 ar'guments 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 judgment, 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.
and that the captain ought not
to have given the bill of lading,
except to the person who could
produce the receipt in exchange.
Consequently, the person hold-
ing the receipt had a control
over the goods, till he had ex-
changed it for the bill of lading.
His Lordship added, that the
plaintiffs had unquestionably
not abandoned their right of
stoppage in transitu, in case of
the insolvency of the pur-
chasers, until the goods were
delivered; and that, although
French and Co. might sell the
sugars again, the plaintiffs
might still reserve to them-
selves the right of stoppage.
That the defendant, therefore,
gave the bill of lading to Cal-
das in his own wrong, because,
according to usage and com-
mon sense, he should not have
delivered it without taking the
receipt in exchange. "I do
not," said his Lordship, "rely
mainly on the particular form
of the receipt (though that is
not to be laid out of our con-
sideration); but I think that if
the receipt had been in the
usual form, its effect would
have been the same. The
ground of my opinion is, that
the original seller had never
parted with his right of stop-
page in transitu." The rest of
the Court concurred. Rule
refused. See, for a more

The case of Lickbarrow N.
Mason, both in its principle
and circumstances, is very dis-
tinguishable from the above
case. That case determined,
and the decision is undoubtedly
of the first importance to com-
merce, that the consignee of
goods, by the assignment of
the bill of lading to a third
person for a valuable consi-
deration, might confer an ab-
solute right and property upon
such assignee, indefeasible by
any claim on the part of the
consiguor; subject, however,
to this restriction, that the as-
signment 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 poli-
cy, the principle in Lickbarrow
v. Mason was extended.
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, al-
though he knew at the time
that the consignor had not ob-

In

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 plaintiff's 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 Galdus 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 plaintiffs 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 principle 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 transitu are collected and examined. '

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