1816. HEDLEY v, LAPAGE. of Russia. The freight stipulated by the bill of lading was little more than colourable, and not meant as an indemnity for the risk. It is absurd to suppose that it was. But every objection of this kind is waved by the promise to pay. There is no need of any special counts. Best, serjeant, and Storks, for plaintiff. Vaughan, serjeant, for defendant. 1816. SITTINGS AFTER MICHAELMAS TERM, 57 GEO. III. TH ZWINGER and Another v. SAMUDA. A. having some coffees in the West employs a broker to sell India Docks, HIS was an action of trover brought to recover thirty casks of coffee. The coffee in question had been imported in the names of Moses and Co., and warehoused in the West India Docks. At the time of importation a person of the name of Roebuck had an interest in them. Roebuck not has found a them; the broker informs him that he purchaser, and requires to be put in possession of the Dock war rants. A. de the broker, being able to pay, the coffees were purchased by the defendant, and stood in his name in the books of the Company. On the 13th of August, Roebuck, who was a dealer in coffee, was employed livers them to by the defendant to sell them; and he negotiated indorsed in blank, upon a sale with Doxat and Co., who were the brokers receiving his (the broker's) of the plaintiffs. On the 16th, Roebuck informed check for the the defendant that he had sold the coffee for the price sum of 5341., and required to be put in possession broker then of the Dock warrants, which the defendant deli- fee to the plaintiffs, and vered to him (indorsed in blank) on receiving his receives im'check for that sum, drawn upon his bankers Han- menta key and Co. On the same day Roebuck completed the sale with Doxat and Co., the plaintiffs' brokers; coffee. The seils the cof ment upon handing over rants. The the Dock war broker's check, given to A., is dishonoured, and 4. immediately stops the goods in the Dock warehouse. Held, that the plaintiffs had a right to recover in trover against A. on the ground that the delivery of the Dock warrants by the broker to the plaintiffs, upon payment made to him, constituted a complete transfer by the custom and usage of trade; and defeated the right of stoppage in transitu. 1816. ZWINGER v. SAMUDA. he handed over the Dock warrants regularly indorsed, and received payment by a check of the and Another plaintiffs. In the mean time the defendant, who held Roebuck's check, was informed, upon presenting it at the banker's, that orders had been received not to pay it. In the result the check was dishonoured; and the defendant, on the next day, gave notice to the Dock Company to stop the goods. The question was, whether the defendant had a right to stop, after the indorsement and delivery of the Dock warrants to the plaintiffs upon payment for the goods. Vaughan, serjeant, for the defendant, contended, 1. It was clear that the original vendor, the defendant, through whom title was derived to the plaintiffs, had been defrauded; and the question was, whether the delivery of the Dock warrants, under the circumstances of the case, passed a title to the property not subject to a countermand. He contended that a Dock warrant was not a negotiable instrument, like a bill of exchange, or bill of lading. That those instruments were assignable, and conveyed property by the custom of merchants; but a Dock warrant had no such character. It was merely an authority to the Dock Company to deliver, and countermandable like a common order for delivery. The question was of the greatest magnitude. Did the mere transfer of an instrument, not known till within these few years in commerce, although admitted to be for a valuable consideration between third parties, defeat the right of the unpaid vendor to stop the goods? 2. The plaintiffs had been guilty of laches; and had taken the 1816. ZWINGER warrants from the person who delivered them without enquiry. It was not sufficient to have the warrants handed over; they should have applied to the and Another Dock Company to know if there was any stop upon the goods. Several brokers were called on both sides, who stated, that it was a very common case for these warrants to pass from one hand to another; and they were considered to convey the property by delivery without application to the Dock Company. That sometimes application was made to the Dock Company before payment, the vendees not being satisfied with the bare indorsement of the warrants. But that such practice was not frequent. The Solicitor General, contrà.-These instruments are received in commerce as the symbols of property; they circulate from hand to hand by indorsement; and it would be a great impediment to merchants, if no property passed under them without a previous application to the Dock Company. The defendant indorsed these warrants in blank, and thus sanctioned the transfer of the property to any person who purchased for a good consideration. It is no reason why the plaintiffs should sustain a loss, because the defendant had inadvertently trusted Mr. Roebuck. PARK, J.-I think these instruments are made negotiable by the custom of the trade. They are symbols of property; and the merchant, who purchases them for a good consideration, derives a title v. SAMUDA. 1816. ZWINGER from the indorsement and delivery. They resemble a bill of lading. The plaintiffs took the warrants in and Another the usual course of dealing; and I do not think that, in order to perfect their title, they were required to make an application to the Dock Company. v. SAMUDA. Verdict for the plaintiffs. Shepherd, S. G. and Lens, serjeant, and Richardson, for plaintiffs. Vaughan and Onslow, serjeants, and F. Pollock, for defendant. This case was discussed in Court in the ensuing term, upon a motion for a new trial; but, after granting a rule nisi, the Court, when the case came on to be argued, discharged the rule; upholding the opi nion expressed by the learned judge at Nisi Prius, that these Dock warrants, indorsed, bonâ fide, and for good considerations, transferred the property in the goods, like a bill of lading, &c. |
