1816.

OSEY and Another v. GARDNER and Another.

TR

A. has some rum in the

West India

rum West

Docks, which

a

he sells to B.

The rum is to

be shipped by

A. in a vessel chartered by B. Before the

rum is delivered on board

the vessel, B.

lading from

ROVER to recover 150 puncheons of rum. The defendants being possessed of the in question, which was at the time in the India Docks, sold it to a person of the name of Meredith, who gave directions to ship it on board the Zealous, which he had chartered on a voyage from London to Rotterdam. Having obtained bill of lading from the captain, previous to the gets a bill of loading of the goods, Meredith indorsed it over to the captain; the plaintiffs, who gave him their check for 4,000l. on Jones, Lloyd and Co. in payment for the rums. This check was duly honoured; but the defendants not being paid, and having a suspicion of the the bill of solvency of Meredith, countermanded a part of being unpaid, the goods, which were, at the time of countermand; the solvency of in the course of delivery from the West India Docks, and seized the rest, forcibly, from the vessel on board of which they had been shipped.

One hundred and three puncheons were on board when the defendants stopt them; forty-seven were still undelivered. The transaction between Meredith, and Osey and Co., on their part, was not liable to impeachment.

The bill of lading bore date on the 28th November 1815, which was before any of the goods were

he then sells question to who pays B. for it, upon an

indorsement of

Jading. A.

and suspecting

B. takes some

part of the

rum forcibly

from out of the vessel, and countermands the delivery

of the rest.

In trover by

C. against rum: Held, that C. gained

to recover the

no good title

under the bill of lading; such bill being fraudulent, inasmuch as B. procured it to

be signed by the captain before the rum

was delivered on board the ship,

1816.

OSEY

2.

Shepherd, S. G. for the defendants, contended, that they had a right to stop the rum in transitu. It was true, the plaintiffs had paid a good GARDNER. consideration for the rum; but they could only take such title to the goods as Meredith possessed. The captain had signed a bill of lading before the goods were on board. At the time it bore date they were actually in the West India Docks. He had moreover signed a bill of lading to persons who were not the real shippers. The defendants were the shippers; they had shipped a part, and bad countermanded the remainder. It would be the source of infinite fraud, if a bill of lading could be construed to convey an assignable property, before the goods were actually laden on board the vessel. The bill of lading purported that the goods, at the time of delivering it, were on board. If they were not on board at that time, it was an instrument pregnant with fraud.

Best, serjeant, contrà.-The plaintiffs knew nothing of the circumstances under which this bill of lading was signed. It was exhibited to them, and they paid 4,000l. for the property. The bill of lading transfers the property, whether the goods are on board or not; if the assignee, at the time he takes it, is ignorant that the goods are not on board. No attempt is made to impeach the honesty of the transaction on the part of the plaintiffs. The ship was chartered to Meredith. The moment the goods were put on board the delivery to Meredith was perfected, and the sale to the plaintiff's attached.

1816.

OSEY

v.

BURROUGH, J.-Under the circumstances of the case, I think the bill of lading transferred no property to the plaintiffs. Can a bill of lading be considered to be made bona fide, when no goods are GARDNER. on board at the time that the captain signs it? Is not such an instrument fraudulent?

Upon some of the Jury expressing an opinion that they thought the bill of lading fraudulent upon that ground, the plaintiffs consented to be nonsuited.

Best, serjeant, and F. Pollock, for the plaintiffs.

Shepherd, S. G. Vaughan, serjeant, and Marryatt, for the defendants.

Vide Craven v. Ryder, ante, p. 100. and Taunt. 433.:

and Withers v. Lys, p. 18. See
likewise the notes to the cases,

1816.

A. before his bankruptcy, discounts certain bills of

bankers. They

give him immediate credit for the value

of the bills in his account, minus the discount.

A ba

lance is like

wise struck, before the bankruptcy,

ARBOUIN and Another, Assignees of GowEN, a
Bankrupt, v. TRITTON and Others.

MONE

ONEY had and received.-The defendants pleaded the general issue. This action was exchange with brought to recover the sum of 934l. 8s. Sd. being B. and Co. his the balance of an account in the hands of the defendants, who had been bankers to a person of the name of Gowen. In May IS16, Gowen procured the defendants to discount him two bills of exchange; one for 1,000l. at two months, drawn by himself, and accepted by one Arnold; the other, for 312. 17s., drawn in the same manner, and and, whilst the accepted by one Mills. Both bills were discounted running, in fa- in cash by the defendants, and Gowen had credit for them in his account with the house, minus the bankers admit discount. This transaction was in May. On the in their hands 18th of June, the defendants made up Gowen's dae to 4., giv- account, which was then balanced; when, giving ing him credit him credit for the proceeds of the discounted bills then running. (then running) the sum of 9341. Ss. 8. stood as a bankrupt, and balance in his favour. This sum was now sought to be recovered by the present action. On the

bills were yet

vour of A.,

when the

that they have

9341. 89. 8d.

for the bills

4. becomes a

the bills are dishonoured. Hield, that in an action against the bankers for

the balance

17th of June, Gowen committed an act of bankruptcy, and a commission issued on the 20th. On admitted to be the 15th of July the present action was comdue to 4. be menced: on the 19th, the bill for 1,000l. became due; and, on the 12th of August, the second bill for 3124. 178. Both acceptors were insolvent, and the bills remained in the hands of the defendants.

fore his bank

ruptcy, they

have a right to set off against such claim, the

amount of the

dishonoured bills, it being a case of mutual credit, under the 5th Geo. II. c. 30. s. 28.

1816.

ARBOUIN

v.

It was in evidence, that a clerk of the defendants called upon Gowen, on the 17th of June, to tell him of the apprehended insolvency of the accep- and Another tors of both bills, and to require that the bills should be taken up, or security given. Gowen informed him that he was not in a condition to take them up.

Lens, serjeant, for the plaintiffs, contended, that the bills being actually discounted, and not, as was sometimes usual with bankers, deposited, with liberty for the customers to draw, the plaintiffs were entitled to recover. The defendants had themselves balanced the account on the 18th of June, and admitted the sum in dispute to be in their hands. Gowen's bankruptcy had put them in the same situation as his other creditors. They must prove the bills under his estate, and account with the assignees for the funds which belonged to Gowen at the time of the bankruptcy.

Shepherd, S. G. contrà, relied upon the statute 5 Geo. II. c. 30. s. 28.-This was a case of set-off; or, more properly, of mutual credit. Gowen indorsed the bills to defendants, who advanced him money upon them. They had a demand against him, and they had given him a credit upon these securities. This was that condition of the parties to which the statute was meant to apply. It was true the day of payment had not arrived; but the day of credit was passed. The mutual credit arose at the time the bankers credited Gowen on the securities, and when he (Gowen) trusted the bankers with the proceeds.

VOL. I.

2 E

TRITTON and Others.