Sangslaff v. Stix.

"If the existence of a carrier's lien, without other evidence, authorizes an inference that he holds the goods as carrier and not as warehouseman, such an inference is controlled and rebutted in this case by the previous course of dealing between the carrier and the consignee. The capacity in which the rail-' road held the goods is a question of fact that might depend largely or wholly upon the understanding and intention of the railroad and Sanborn (Benj. Sales, S 1264, 1270), and could have been properly determined at the trial term in favor of the defendant. As to some or all of the goods, there may be a question whether there is any evidence of a right of stoppage in transitu, and whether a decision in favor of the plaintiffs could be sustained. The case having been submitted for such judgment as should be ordered at the law term, there being no conflict of evidence, and it being clear that the transitus was at an end when the attachment was made, there seems to be no occasion for another trial."

The latest adjudication on this point is Bethell v. Clark, 19 Q. B. Div. 533. T., in London, bought goods of C., in Wolverhampton, and directed C. to consign them to the Darling Downs, to Melbourne, loading in the East India Docks. The goods were forwarded by railway to Poplar for shipment, and were shipped on the Darling Downs for Melbourne at noon on July 3. About 10 o'clock on the same morning C., at Wolverhampton, having heard of T.'s insolvency, sent a written authority to the railway company to stop delivery of the goods, and the railway company at once telegraphed to their agent at Poplar to that effect, but the message did not arrive in time to prevent the shipment of the goods on board the Darling Downs. The mate's receipt for the goods was given to the railway company and by them forwarded to T., but no bills of lading in exchange for the receipts were ever applied for by any of the parties. The Darling Downs sailed for Melbourne with the goods on board. On July 11, T. presented a bankruptcy petition, and a scheme of arrangement was ultimately approved of by the creditors. The trustee under the scheme having claimed the goods, held, that there was no constructive de livery of the goods to the buyers; and that therefore the transit was not at an end and the notice to stop was good. The court by MATHEW, J., said:

"It was contended for the trustee of the buyer's estate that the rule of law applicable to the case was this: that where goods have arrived at a place indicated by the buyer to the seller, and are to remain there in the hands of an agent of the buyer, there is an end of the transitus, although the place be not that of their ultimate destination. In the particular case it was said that the master or mate of the vessel was the agent of the buyers, who as between them and the sellers was to receive the goods for the buyers, and therefore that this transit ended with the shipment.

"But the principle to be gathered from the many decisions on the subject seems to me to be, that in determining whether there has been a constructive delivery of the goods to an agent of the buyer it must be ascertained in what capacity the agent has received the goods, whether to carry or to hold for the buyer. In other words the inquiry must be, what is the exact nature of the contract between the buyer and the agent under which the latter has received the goods. In Dixon v. Baldwen, 5 East, 175, the evidence was directed to

Sangslaff v. Stix.

show that Metcalf received the goods as agent for the buyers, in order that he might hold them until he received further orders as to their destination, and that without such orders the goods in his hands would remain stationary. The court held upon this evidence that when the goods reached Metcalf the transit was at an end.

"In Kendal v. Marshall, 11 Q. B. Div. 356, the facts as presented to the Court of Appeal would seem to be different from those dealt with by the court below. At the trial it appeared that Marshall & Co. had entered into a contract with the buyers to forward the goods at through rate from Bolton to Rouen. It was not suggested that there was any contract between the buyers and Marshall & Co. other than the contract to forward. There was no evidence that the railway company were the agents of the buyers. They were treated as having acted for Marshall & Co. In the Court of Appeal, it would appear from the judgment of all the lords justices, that it was assumed or admitted that the railway company were the agents of the buyers to carry the goods to Garston and there deliver them to Marshall & Co. to be held by them for the buyers until further orders were given. With this material alteration of the evidence submitted to the Court of Appeal the case was readily brought into line with Dixon v. Baldwen, 5 East, 175, and it was held that there had been a constructive delivery to the buyers. The judgments delivered in the Court of Appeal in this and in the later case of Ex parte Miles, 15 Q. B. Div. 39, seem to me to involve the application of the principle that in determining whether the goods are still in transitu a sufficient inquiry into the facts must be made to ascertain what had been the contract between the buyers and the agent who has received the goods.

"The cases referred to are instances of constructive delivery to the buyer and of consequent termination of the transit. But the numerous cases from Smith v. Goss, 1 Camp. 282, to Ex parte Watson, 5 Ch. D. 35, in which the receipt of the goods by the agent has been held not to be a constructive delivery to the buyer indicate, it seems to me, with equal clearness the existence and application of the rule. These authorities show, that although the fact that a person has been named by the buyer to the seller to receive the goods is some evidence, it is by no means conclusive evidence that the receipt by that person is the end of the transit.

"The case of Ex parte Rosevear China Clay Co., 11 Ch. D. 560, presents a close analogy to this case. The buyer had purchased china clay which was to be delivered by the seller free on board at a specified port. Afterward the buyer named the vessel to the vendor and the clay was shipped. Before the ship

sailed the buyers stopped payment, and notice to stop in transitu was given to the master. No bill of la ling had been signed. It was decided by the Court of Appeal that the transit was not at an end.

64

In the present case it seems clear that the London and North Western Rail. way Company, the lightermen, and the shipowners were all agents of the buyers, not to hold but to forward the goods. The reason urged by the learned counsel for the trustee, that the delivery on board the ship to the mate was a constructive delivery to the buyers, would apply as forcibly to the delivery to the London and North Western Railway Company. But if this were a delivery to

Sangslaff v. Stix.

the buyer the transit would have ended in law at the point where it commenced in fact. The contract with the shipowner was to forward the goods to Melbourne, and there deliver upon the terms of a bill of lading in the usual form, and until the bill of lading had been transferred to a bona fide holder for value it seems to me that the sellers in this case would retain the right to stop in transitu. "It was further urged for the trustee that the transit was over when the goods were shipped, because the goods might, on the demand of the buyers, have been taken out of the possession of the master of the ship; but this possibility, so remote in a business point of view, is no proof that the transit was terminated. See London and North Western Ry. Co. v. Bartlett, 7 H. & N. 400." CAVE, J., said: "In all cases of stoppage in transitu it is necessary first of all to ascertain what is the transitus or passage of the goods from the possession of the vendor to that of the purchaser. The moment the goods are delivered by the vendor to a carrier to be carried to the purchaser the transitus begins. When the goods have arrived at their destination and have been delivered to the purchaser or his agent, or when the carrier holds them as warehouseman for the purchaser, and no longer as carrier only, the transtus is at an end. The destination may be fixed by the contract of sale, or by directions given by the purchaser to the vendor. But however fixed, the goods have arrived at their destination, and the transitus is at an end, when they have got into the hands of some one who holds them for the purchaser and for some other purpose than that of merely carrying them to the destination fixed by the contract or by the directions given by the purchaser to the vendor. The difficulty in each case lies in applying these principles.

"The railway company sent the mate's receipts to the purchasers, who did nothing with them. No bill of lading was obtained by any one; and the goods went to Melbourne, because by the direction of the purchasers the vendors had put them on board a vessel bound for that place. Under these circumstances I am unable to distinguish this case from that of Ex parte Rosevear China Clay Co., 11 Ch. D. 560, which is binding upon us, although I am also unable to reconcile that case with some of the dicta in Ex parte Miles, 15 Q. B. Div. 39. I agree therefore that judgment must be entered for the defendants.” In Ex parte Miles, In re Isaacs, 15 Q. B. Div. 39, a commission agent in London ordered goods of a manufacturer, to be shipped to his principals in Jamaica, and to be paid for by bills drawn by the sellers on the agent. Subsequently the agent directed the sellers to forward the goods to shipping agents at Southampton for shipment. The goods were so shipped, the bills of lading describing the agent as consignor and the principals as consignees. After the ship had sailed, but before her arrival at Jamaica, the agent stopped payment, and the sellers, who had not been paid, notified the ship-owners to stop the goods in transit. Held, that as between the agent and the sellers, the transit ended at Southampton, and the notice was too late. BRETT, M. R., said: “Now what is meant by sending goods to their destination? It seems to me that it means sending them to a particular place, to a particular person who is to receive them there, and not sending them to a particular place without saying to whom. That is the meaning of destination in a business sense." Citing Dixon v. Baldıen, 5 East, 175; Valpy v. Gibson, 4 C. B. 837. VOL. LX-8

Mayes v. State.

MAYES V. STATE

(64 Miss. 329.)

Criminal law-homicide- res gesta-declarations of deceased.

A., having been fatally assaulted, ran about a hundred yards, and on a third party's coming up about five minutes after the assault, told him the name of his assailant. Held, that this declaration was inadmissible as part of the res gesta.*

CONVICTION of murder. The opinion states the case.

W. V. Sullivan, for appellant.

T. M. Miller, attorney-general, for State.

COOPER, C. J., The appellant has been convicted of the murder of one Albert Lester, and assigns many errors in the proceedings in the court below. We deem it unnecessary to consider the many assignments, many of which are without the semblance of merit, since the judgment must be reversed on the point hereinafter indicated.

The homicide occurred at a social meeting, which had been protracted through the night, during which time many of those present had indulged in the excessive use of intoxicating liquor, a number of fights resulted, and among these was one between the deceased and one Kirkwood. According to the testimony of the witnesses for the State, it appears that while Kirkwood and deceased were fighting the appellant ran in between them, threw his arm around deceased, and cut him with a knife across the stomach, inflicting the wound from which death resulted. On the other hand, the testimony of other eye-witnesses who testified on behalf of the appellant is that he did not inflict any wound on deceased but only separated him and Kirkwood and that Kirkwood gave the mortal blow. The dying declaration of the deceased, made several days after the injury, was admitted in evidence, and by it it appears that the appellant was the guilty agent. But testimony tending to impeach the credibility of this dying declaration was introduced by

See note, 38 Am. Rep. 641; contra: State v. Molasse (38 La. Ann. 381), 58 Am. Rep. 181.

Mayes v. State.

the appellant. The court below, over the objections of the defendant, permitted a witness (Henry Wortham) to testify to a statement made by deceased under these circumstances. When deceased was cut he immediately turned and ran a distance of from one hundred to one hundred and ten yards (pursued a part of the way by the appellant, who repeatedly snapped a pistol at him but who turned back before deceased ceased running) and then turned into the woods and lay down. The witness, Wortham, walked up in the direction in which deceased had gone, and when he had gone a part of the distance he heard one Lynch call out to him, saying: "Here is Albert out in the woods with his guts cut out ;" the witness then went to where deceased was lying, and before getting there he heard him and Lynch engaged in conversation. Witness reached deceased as nearly as he could fix the time in about five minutes after the wound had been given, and when he came up deceased said to him: "Henry, Sid (the appellant) has cut my guts out; did you see him?"

Upon objection of this testimony being made, the learned judge ruled that the statement of the injured party was so recently made after the wound had been given that it was a part of the res gestæ, saying that he did not think sufficient time had elapsed to warrant the suspicion of fabrication.

An examination of the approved text-writers, and of the decisions to which they refer, discloses, especially in the decisions of American courts, a somewhat loose regard for well recognized rules governing the admissibility of evidence. That hearsay testimony cannot be given is universally admitted by the courts which have from time to time been called upon to determine whether statements of this character are competent, and they have, without exception, declared that when the statement assumes the character of a narrative of a past transaction it is incompetent. But in many cases what were manifestly completed and finished acts have been. by a sort of construction treated as incomplete and unfinished, and the statement thus held to be a verbal act incorporated with and a part of the thing being done.

In Thompson v. Trevanion, Skinner, 402, Lord Chief Justice HOLT "allowed what the wife said immediately upon the hurt received, and before she had the time to contrive or devise any thing for her own advantage," to be given in evidence. In The King v.: Foster the witness had seen a cab drive by at a very rapid rate, but