Page images


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.


[ocr errors]

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.

[blocks in formation]

In the ensuing term, Lens, the case of Lickbarrow v. Ma. serjeant, 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 judg. ground 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 posses, at the trial, and referred to sion of the receipt should alone be entitled to the bill of lading; full report, 2 Marshall's Rep. 1815. and that the captain ought not 127. to have given the bill of lading,

CRAVEN except to the person who could The case of Lickbarrow v. and Others produce the receipt in exchange. Mason, both in its principle

RYDER. 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 plaintiff's any claim on the part of the might still reserve to them. consignor; subject, however, selves the right of stoppage. to this restriction, that the as. That the defendant, therefore, signment should be made with gave the bill of lading to Calo good faith to all parties, and das in his own wrong, because, without notice to the assiguee according to usage and com. that the goods were not paid mon sense, he should not have for. In Cuming v. Brown, 9 delivered it without taking the East, 506, with a view to a receipt in exchange. “I do more liberal commercial poli. not,” said his Lordship,“ relycy, the principle in Lickbarroco mainly 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 assignment, the receipt had been in the

bona fide, without notice of usual form, its effect would

any such circumstances 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 con. page 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 plait

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 forarrived, 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 mere of the plaintiffs,) it may be chants, was capable of creating well to see how the case would

a property in another by in. then 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 trans

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. cases of stoppage in transilu But as no such transferable are collected and examined. :


Gross and Another v. LA PAGE.

Friday, Dec. 15.

to sell to B.

stat. 10 11

ber of the fel.

VIS was a special action on the case to re- A. contracts

cover damages for a breach of contract upon some Russian the sale of some hemp.

hemp; and the ship on board of which the

hemp is to be On the 9th of June, 1815, the plaintiffs sold to conveyed, is the defendant 25 tons of sound, Petersburgh, clean Petersburgh by hemp, warranted to be of a good and merchant. A. is the im able quality, at 55l. per ton. The ship, on board penter of the of which the hemp was to be conveyed, was to w.3.0.16., it sail from Petersburgh before the 31st of August, is illegal for and the hemp was to be taken according to the this realm to landing scale when the vessel arrived. “The hemp trade with arrived in July, 1815, and the price had fallen he be a memconsiderably before its arrival. The name of Mr.

lowship of Metcalfe, who was the broker, had been used for merchants the purpose of the hemp passing the landing scale. those coun : It stood in the London Docks in his name up to not a member the 21st of August. But the plaintiffs were the

of the Comimporters of the hemp.

hemp is pro

landing scale, Best, serjeant, and F. Pollock, for defendant, docks by using objected," that the plaintiffs,' who were the im- brokereifa porters of the hemp, were not members of the fellowship. Marl shine

be such an il. Wm. 3. c. 6., by which the trade to Russia was legality in the confined to the Fellowship of the Russian Com- will render it

void, and enpany, and to such persons as were admitted of title B. to

avail himself of it, as a defence to an action brought against him by A. for not fuiflling his agree

pany; but the

tected at the

and in the

was one of the 1815.


Gross and


that fellowship. The plaintiffs had been trading in defiance of that act: the bill of lading shewed that the hemp was imported by them. But the defendant had a right to expect that they had ohtained the freedom of that company, otherwise the hemp might be forfeited or seized. Under such circumstances, the defendant could not be compelled to take it.

The Solicitor General, and Marryat, for the plaintiffs.— It is no objection to the contract. The açt may prohibit the plaintiffs from trading to Russia, not being members of the Company; but the importation of the article is not therefore prohibited. After the commodity arrives, the shipper, though not free of the Company, may sell it, though he could not legally import it. It is not the less a subject of contract because it is illegal to import it. The parties themselves may be under disabilities; but the article is of free trade.

DALLAS, Justice.-I confess I am much struck with the objection which has been made by the defendant's counsel. The importation is prohibited to all but members of the Russian Company. If imported by unlicensed persons it is seizable. The amount of the objection is, that the defendant cannot be compelled to accept an article which might be liable to seizure in the hands of a purchaser. I will not stop the cause, but I will save

the point.

The plaintiffs had a verdict on the merits.

« PreviousContinue »