1816. NOBLE v. ADAMS. How often are purchases made with accommodation paper; but who ever objected that they were therefore void? In almost all bankruptcies, cases of sale like the present occur; and, supposing it was in the reach of a court of equity, a court of law was incompetent to decide with what view such contracts were made. No mercantile contract will be safe, if circumstances like these, introduced afterwards, can invalidate it. Shepherd, solicitor-general, for the defendant. 1. The right of stoppage in transitu is not gone. The Glasgow Company were agents for both parties; and the receipt, which is in terms " from the plaintiff," is a mere form, capable of explanation. 2. The present action is founded in fraud; and it is a principle of law, that ex dolo malo non oritur contractus. GIBBS, C. J.-I am inclined to think, that the vendors have lost their right to stop in transitu ; they have not taken a receipt from the Glasgow Company to themselves, which they might have done, but have suffered them to give an absolute and unconditional receipt to the plaintiff. I have doubts upon this part of the case, and will reserve the point. Upon the question of fraud, I shall tell the jury, that the mere circumstance of the plaintiff's knowing himself to be insolvent, and that the bills which he offered in payment for the goods were doubtful, does not afford evidence of that degree of fraud which will avoid a contract of sale. Undoubtedly, a purchase under such circumstances would be grossly dishonest; but I am not prepared to say that the contract would be void. If the jury believe that Noble not only knew that the bills were waste paper, but that he had contrived them for the purpose of gaining possession of these goods; that he was irremediably insolvent at the time, and had no intention of standing his ground; under such circumstances, I shall direct them that there is a degree of fraud, which will vitiate the contract, and that no property will pass to the plaintiff under it. The jury found a verdict for the defendant. Best, serjeant, and Andrews, for plaintiff. Shepherd, solicitor-general, Vaughan, serjeant, and Lawes, for defendant. In the ensuing term, Best, Serjeant, obtained a rule to shew cause why there should not be a new trial, on the ground that there was not sufficient evidence of fraud to justify the finding of the Jury. complete delivery; and that Shepherd Solicitor General, When the case came to be argued, the Lord Chief Justice. observed, that "although he had reserved the point of stoppage in transitu, he was of opinion, and the Court concurred with him, that there was no pretence for exercising that right. That the delivery of Cross and Co. to the Shipping Company at Glasgow was a SITTINGS IN TRINITY TERM, 56 GEO. III. 1816. MITCHELL and Others v. LAPAGE. ASSUMPSIT for a breach of contract, in Mit Where the broker makes a mistake in describing, in the contract, sold notes, goods to be sold by A., B., and C., which he believed to be the real name of the firm which em ployed him; which firm, in &c." fact, from a recent altera. not taking a quantity of hemp which the defendant had bought of the plaintiffs, through their broker, in March 1815. The hemp at the bought and the time was in Russia, and was to be shipped from Riga by the Alexander. Mr. Metcalfe the broker, who made the contract, had described it in the bought and sold notes in these terms: -"Bought for George Lapage, of Todd, chell, and Co. thirty-eight tons of hemp, The action was brought in the names of John Mitchell, George Armistead, and P. F. Graabner; but the old name of the firm was Todd, Mitchell, and Co. This firm had been dissolved in December 1814, when Todd and James Mitchell retired, and John Mitchell, one of the plaintiffs, remained, with Armistead and Graabner, the co-plaintiffs. Neither Todd nor James Mitchell had any concern with the hemp in question. The change in firm had not been published in the Gazette, was known to the clerks in the house. the broker was not tion that the privy to, con and E. only. Held, that the purchaser of the goods was to avoid the D. and E. not at liberty this account, after having contract on treated the subsisting, contract as but upon a sub. When munication sequent com from the Metcalfe made the contract in March 1815, it was plaintiffs, un ess he could shew that he had been prejudiced, or had lost the benefit of a set-off, -1816. MITCHELL and Others v. LAPAGE. not known by him that any change had taken place in the firm. It was in evidence that a letter from the present plaintiffs, in the name of the new firm, had been sent to the defendant in August 1815, advising him of the arrival of the hemp, which had at that time fallen in price, and calling upon him to fulfil his contract; that shortly afterwards Mr. Lapage expressed to the broker a wish to be liberated from his bargain. He frequently spoke of the hemp which was to come by the Alexander ; but latterly he refused to take it, upon the ground that the insertion of Todd's name avoided the contract. Lens, serjeant, for the defendant.-The plaintiffs cannot recover upon the present contract. The bought and sold notes are in the name of the old firm. Every man has a right to select with whom he will deal. The plaintiff might choose to contract with the old firm of Todd, Mitchell, and Co., and not with another firm. When the broker sent the sold note to the plaintiffs, and they discovered, as they must have done, the mistake on inspection, it was their duty to have had the bought note altered, and to have apprised the defendant of the error. The present plaintiffs never traded under the names of Todd, Mitchell, and Co., the firm with which the defendant contracted; and having made a contract with one set of persons, he cannot be prejudiced by having it adopted by another. GIBBS, C. J.-I agree with the defendant's counsel, that he cannot be prejudiced by the substitu |