PARRY

v.

FRAME.

time of the agreement being entered into with the plaintiff was aware that the under-tenant was to take away the fixtures in dispute, but that the plaintiff had also taken away some articles to which he had no right; the jury deducted the amount of the latter articles from the price agreed upon, and found a verdict for 731. 19s.

Clayton, Serjt. now moved for a rule, calling on the plaintiff to shew cause why a nonsuit should not be entered, contending, that under the circumstances of this case trover was not maintainable, for that the defendant had an interest in the lease, and a lien upon it; that although a legal assignment of the lease had not actually been made, yet that a court of equity would have enforced the defendant's title to it by compelling a specific performance of the agreement between the parties; that the defendant therefore having an equitable title to the lease, could not be guilty of a conversion by retaining it; and that the two circumstances which are necessary to support an action of trover did not concur in this plaintiff, namely, the right of property and the right of possession. He cited Gordon v. Harper, 7 Term Rep. 9.+

But the COURT was of opinion, that although the defendant on payment of the purchase money and taking an assignment would be entitled to retain possession of the indenture of lease, yet that the plaintiff had a right to insist upon an assignment being made out with covenants to protect himself, and that therefore, as the defendant had refused to accept an assignment or return the lease, the action of trover was maintainable.

Clayton took nothing by his motion.

† 4 R. R. 369.

MILLS AND OTHERS v. BALL.

(2 Bos. & P. 457-464.)

A. living at N. in Devonshire, ordered goods of B. in London, who sent them by ship, via Exeter, consigned to A. and advised him thereof. On their arrival at Exeter they were delivered to C. a wharfinger who received them on A.'s account, and paid the freight and charges; after their arrival A. wrote to B. informing him that in consequence of his affairs being deranged he should not take the goods, and telling him that they were at Exeter; at this time A. had committed an act of bankruptcy, upon which he was afterwards declared a bankrupt. B. applied to C. for the goods, and tendered him the freight and charges due; upon which C. promised not to deliver them out of his custody, but afterwards did deliver them to the assignees of A. though indemnified by B. Held 1st, that B. had a right to stop the goods in the hands of C.; and 2ndly, that he might maintain trover for them against C.†

THIS was an action of trover for one cask of madder and one chest of indigo; to which the defendant pleaded the general issue. The cause came on to be tried before Lord Eldon, Ch. J. at the Sittings at Guildhall after last Hilary Term, when a verdict was entered for the plaintiffs with 1117. 7s. 3d. damages, and 40s. costs, subject to the opinion of this Court upon the following case: Josias Gard a trader of North Tawton, in the county of Devon, about twenty-five miles from Exeter, on the 4th of July, 1799, by letter to the plaintiffs, who were dry-salters in London, ordered the goods which were the subject of this action to be sent to him. The plaintiffs accordingly on the 6th of July, 1799, sent the goods which were of the value of 111. 78. 3d. by the ship Lively, consigned to Gard, and sent a letter of advice to him inclosing the invoice, dated the 6th of July, 1799, which letter Gard received in course; and the goods on their arrival at Exeter were delivered to the defendant, who was a wharfinger there, and received them on Gard's account, and paid the freight and charges with which he debited Gard, and if any accident had happened to the goods before the receipt of the following letter, the plaintiffs would have called on Gard for payment. On the 16th September, 1799, soon after their

† And see Openheim v. Russell, 3 B. & P. 42; Goss v. Smith, 1 Campb.

284; Bohtlinck v. Inglis, 3 East, 381,
389.

1801. June 12.

[ 457 |

MILLS

V.

BALL.

[ *458]

arrival, Gard wrote the following letter to the plaintiffs Messrs. Smith, Mills, Berkett, and Co. "Northtawton, 16th September, 1799. Sirs,-As some disagreeable matters have recently taken place in my concerns, I have thought proper to leave the madder and East India indigo which I lately gave you an order for on your account. It is arrived safe at Exeter, so you will please to sell the same to any of your correspondents there, as I would wish to do by you as I would wish to have done by myself. I am very truly, Sirs, your obedient servant, JOSIAS GARD. The goods are at the wharfinger's office, marked Lively, R. Mather." In consequence of this letter the plaintiffs wrote to their agent at Exeter to stop the goods in possession of the defendant, and on the 20th of September the plaintiffs' agent went to the defendant, in whose warehouse the goods then were, and tendered him *his freight and charges and demanded the goods on the behalf of the plaintiffs. The defendant said (as the fact was) that some of Gard's creditors had been there before to demand them, but he had refused to deliver them, hearing that Gard had stopped payment. He then promised not to deliver them out of his custody till he was certain of a safe delivery. On the 2nd of October the demand was repeated by the plaintiffs' agent and a bond of indemnity left with the defendant to indemnify him. against any claim that might be made from any other person. On the 23rd of September a commission of bankrupt issued against Gard, who was subject to the bankrupt laws, indebted to the petitioning creditors in a sum sufficient to support the commission, and had committed an act of bankruptcy on the 8th of September, 1799. On the 1st of October, 1799, he was duly declared a bankrupt, and on the 19th of October, 1799, assignees of his effects and estate were duly chosen, and an assignment executed. On the 3rd of November the defendant delivered the goods to the assignees, who sold them for 1031. 78.; the charges amounted to 31. 19s. The questions for the opinion. of the Court were, whether the plaintiffs were entitled to recover? and if they were, what damages? whether 1111. 7s. 3d. or 1037. 7s., or 991. 17s.? If the Court should be of opinion with the plaintiffs, the verdict to stand for such sum as they should direct; if for the defendant a nonsuit to be entered.

Best, Serjt. for the plaintiffs.

The question is, whether the plaintiffs under the circumstances of this case were entitled to stop the goods in transitu? The general rule is, that where the vendee becomes insolvent the vendor has a right to stop the goods at any time before they come into the actual possession of the vendee. In Lickbarrow v. Mason, 2 Term Rep. 71, Mr. Justice ASHHURST says, "where the delivery is to be at a distant place, as between the vendor and vendee, the contract is ambulatory till delivery, and therefore in case of the insolvency of the vendee in the mean time, the vendor may stop the goods in transitu." Now at the time when these goods were demanded by the plaintiffs, they had not arrived at their journey's end; for they had only reached Exeter, and were to be carried on from thence, and delivered to the vendee at North Tawton. The case of Hodgson v. Loy, 7 Term Rep. 440,† is a decided authority in the plaintiffs' favour. Indeed that case is much stronger than the present, since the initials of the vendee had been marked upon the articles in dispute previous to *the stoppage in transitu, and they were delivered to a carrier nominated by the vendee: neither of which circumstances occurs in this case. So in the case of Stokes v. La Riviere, cited 3 Term Rep. 466, and 7 Term Rep. 443, § the goods were sent by the particular conveyance appointed by the consignee: and in Hunter v. Beal, cited 3 Term Rep. 466, the goods in question were sent to the defendant, who was an innkeeper, directed to the consignees, and while in his hands he received directions from the consignees to ship them, and was only prevented from so doing because he arrived too late at the quay with the goods; yet in both these cases the consignees were held entitled to stop the goods in transitu. And in Hunt v. Ward, cited 3 Term Rep. 467, where goods were sent by order of the vendor to a packer, the packer was considered as a middle man, and the vendor was held to have a right to stop the goods. If the Court should be of opinion that the plaintiffs are entitled to succeed, the only remaining question will be, what damages the plaintiff shall recover? Whether 1117. 7s. 3d. the value of the goods, 103l. 7s. the sum † 4 R. R. 483. 1 R. R. 744. § 4 R. R. 486.

MILLS

V.

BALL.

[ *459 ] ]

for which they were sold, or 991. 178. the sum for which they sold after deducting the charges?

Here the COURT expressed themselves clearly of opinion that the plaintiffs were only entitled to the smaller sum.

Shepherd, Serjt. contrà.

The letter of the 16th of September, 1799, being written to the plaintiffs by the bankrupt after the act of bankruptcy, can have no effect in the case, as it cannot operate to rescind the contract. Barnes v. Freeland, 6 Term Rep. 80,† Smith v. Field, 5 Term Rep. 402, in which latter case the Court, referring to a case of Salte v. Field, 5 Term Rep. 211, § take the distinction that though before the act of bankruptcy the vendee may rescind the contract, yet that after that time he cannot. The principal questions therefore in this case are, whether the claim made amounted to a stoppage, and whether at the time they were claimed they were still in transitu? It is true that the doctrine laid down by Lord HARDWICKE in Snee v. Prescot, 1 Atk. 250, "that a consignor may get the goods back again by any means, provided he does not steal them," is very strong. But in that case as well as in all the cases since, in which that doctrine has been recognized, the goods have been actually seized by the consignor before they have come into the possession of the consignee; whereas in this case the vendor was not able to get them out of the wharfinger's [400] hands into his own possession, and is now claiming to have a right of action against the wharfinger for not delivering them. Had the wharfinger delivered the goods to the plaintiffs on their demand, perhaps they would have been entitled to retain them; but Lord ELDON, when this cause was tried, seemed to entertain some doubt as to their right to sue the wharfinger. Though if the plaintiffs had put their mark upon the goods while in the warehouse of the wharfinger, or if the wharfinger had agreed to hold them for the plaintiffs, such circumstances might have amounted to a stoppage; still it may be very questionable whether a mere notice to the wharfinger of a right to the goods is tantamount to a stoppage. In considering whether the goods were in transitu at the time the notice was delivered to the 2 R. R. 630. § 2 R. R. 568.

† 3 R. R. 125.