■ ■'!■ ^^' Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1626.3.R82 V.2 Leading cases In the comfflercial law of E idng i 3 1924 021 868 504 The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021868504 LEADma CASES COMMERCIAL LAW ENGLAIfD AND SCOTLAJS^D. SELECTED AND ARRVnGED IN SYSTEMATIC ORDER, WITH NOTES. GEORGE ROSS ESQ., ADVOCATE, A.UTHOB OF " LEADINQ OASES IN THE LAW OP SCOTLAND." VOLUME SECOND. €mimt ai Mt PHILADELPHIA: / T. & J. W. JOHNSON, LAW BOOKSELLERS, No. 197 CHESTNUT STRKET. 1855. KITE & WALTOH. CONTRACT OF SALE, PART I. LAW OF EIGLAID. INDEX OF CASES. The pages referred to are those within brackets [ Aitchieon r. Broughton, 486, B6T Akerman v. Humphrey, 151 Alexander v. Gardner, 12 Anderson v. Hammond, 218 Anderson v. Harman, 201 Anderson v. Laurie, 728 Anderson v. Whitehead, 280 Arthur t. Hastie, 680 Atherton v. Lackinton, 203 Atkinson v. Bell, 295 Auld V. Hall, 576 B. Baldey v. Parker, 463 Ball V. Mills, 171 Barbam v. Power, 430 Barnes v. Freeland, 164 Barrett t. Towers, 456 Barrow v. Coles, 147 Bartram y. Parebrother, 180 Baxter v. Tarling, 1 Begg V. Smart, 841 Bell V. Atkinson, 296 Betts v. Gibbons, 223 Blay V. Street, 460 Bleaden t. Hancock, 771 Bloxam 7. Sanders, 48 Boak T. Megget, 547, 667 Bogle V. Dunmore & Co., 582 Bogle V. Meia, 658 Booth V. Plight, 442 Breeds v. Wallace, 43 Bright V. Jones, 343 Broughton v. Aitchison, 486, 567 Brown v. Cuming, 144 Brown v. Edgington, 375 Brown v. Sommerville, 741 Bruce r. Lang, 498, 567 Budd T. Fairmaner, 434 Bunney t. Poyntz, 79 Burlinson v. Laidler, 326 Busk V. Davis, 187 Campbell v. Fleming, 439 Carnegie v. Duthie, 822 Carruthers t. Gibson, 255 Chanter v. Hopkins, 368 Clarke t. Spence, 308, 327 Coles y. Barrow, 147 Collins T. Marquis' Creditors, 805 Constantia, The, 148 Cox V. Gray, 336 Coxe V. Harden, 147 Cox V. Waring, 147 Craven t. Ryder, 202 Crump T. Townley, 205 Cuming v. Brown, 144 Curtis V. Hannay, 461 D. Daliymple t. Stevenson, 839 Davis T. Busk, 187 Dickson v. Eincaid, 833 Dickson v. Paterson, 816 Dickson t. Yates, 55 Downes v. Weston, 451 Duncanson's Creditors v. Simpson, 813 Dunlop V. Higgins, 868 Dunmore & Co. v. Bogle, 582 Duthie T. Carnegie, 822 E. Eadie t. Mackinlay, 568 Early v. Garret, 414 Ede T. MitcheU, 148 Edgington t. Brown, 376 Ellis V. Hunt, 153 F. Fairmaner v. Budd, 434 Parebrother v. Bartram, 180 Faulds V. Harper's Creditors, 708 Fitzgerald v. Tempest, 473 VI ROSS ON COMMERCIAL LAW. Field Y. Salte, 159 Field T. Smith, 186 Fleming v. Campbell, 439 Flight V. Booth, 442 Forbes v. Gibson, 520, 567 Foster v. Frampton, 253 Frampton v. Foster, 253 Preeland t. Barnes, 164 Freeman t. Pasley, 387 Frost v. Whitehouse, 6 Furnell v. Zagury, 44 G. Gardner v. Alexander, 12 Garret v. Early, 414 Gibb T. Mail, 825 Gibbons v. Betta, 223 Gibson v. Oarruth'ers, 255 Gibson v. Forbes, S20, 567 Glen V. Watt, 855 Gorton v. Miles, SO, 90 Goss T. Richardson, 253 Goss T. Smith, 254 Gray v. Cox, 336 Griffin t. James, 255 H. Hall T. Auld, 575 Hammond v. Anderson, 218 Hancock v. Bleaden, 771 Hanuay v. Curtis, 461 Hanson v. Meyer, 20 Harden v. Coxe, 147 Harper's Creditors r. Faulds, 708 Harman v. Anderson, 201 Hastie v. Arthur, 580 Hastie v. Melrose, 648, 662 Hawes v. Watson, 196 Heyward v. Slubey, 212, 808 Higgins T. Dunlop, 868 Hill V. Pringle, 845 Hodgson V. Loy, 224, 231 Hopkins v. Chanter, 368 Hughes V. Stoveld, 205, 657 Humphrey v. Akerman, 151 Hunt T. EUia, 153 Hurry t. Mangles, 89 Hutchison v. Stein, 809 Hutchison v. M'Donald, 484 Huth T. Ormrod, 418 J. James v. Griffin, 255 James v. Eeir's Trustees, 897 Jendwine v. Slade, 433 Jenkins v. Urborne, 152 Jones T. Bright, 343 Jones Y. Jones, 223 K. Keir's Trustees y. James, 897 Kincaid y. Dickson, 833 KnatchbuU y. Reader, 277 Knox's Trustee v. Salter, L. La NeuYiUe y. Naurse, 481 342 Lackinton y. Atherton, 203 Laidler y. Burlinson, 326 Lang V. Bruce, 498, 567 Langridge y. Levy, 403 Laurie y. Anderson, 728 Le Mesarier y. Logan, 45 Lee Y. Parkinson, 327 Levy Y. Langridge, 403 Lickbarrow v. Mason, 92 Logan Y. Le Mesurier, 45 Loy Y. Hodgson, 224, 231 Lyss Y. Withers, 194, 204 M. M'Donald y. Hutchison, 484 M'Ewen y. Smith, 591, 657 M'Nair y. Padgett, 855 Mackinlay v. Eadie, 568 Mangles y. Harry, 89 Mangles t. Mucklow, 301 Marquis' Creditors y. Collins, 805 Mason v. Lickbarrow, 92 Megget Y. Boak, 547, 567 Mein y. Bogle, 658 Melrose y. Hastie, 648, 662 Melville y. Robertson, 485 Meyer y. Hanson, 20 Miles Y. Gorton, 80, 90 Mills Y. Ball, 171 Minett v. Rugg, 30 Mitchell Y. Ede, 148 Mitchell Y. Ransan, 847 More Y. Robertson, 801 Mucklaw V. Mangles, 301 Muil Y. Gibb, 825 N. Naurse y. La NeUYille, 342 New Y. Swain, 90 Nissen v. Salomons, 134 0. Ormrod y. Huth, 418 Outhwaite y. Wentworth, P. Padgett V. M'Nair, 239 855 Parker v. Baldey, 463 Parkinson y. Lee, 327 Pasley y. Freeman, 387 INDEX OF OASES. VU Paterson v. Dickson, Payne t. Shadbolt, Payne t. Whale, Pettit T. Scott, Pickford v. Rowe, Power T. Barham, Power V. Wells, Poyntz V. Bunney, Pringle V. Hill, E. Balaton t. Bobb, Ralston v. Robertson, Randean t. Wyatt, Bansan t. Mitchell, Reader t. EnatchbuU, Richardson t. Goss, Robb V. Ralston, Robertson v. Melville, Robertson v. More, Robertson y. Ralston, Rohde V. Thwaites, • Rowe V. Pickford, Ruding T. Spalding, Rngg T. Minett, Russell T. Woods, Byder v. Craven, S. 816 79 452 231 236 430 449 79 845 820 814 477 847 277 253 820 485 801 814 469 236 151 30 303, 327 202 Salomons v. Nissen, Salte V. Field, Salter v. Knox's Trustee, Sanders v. Bloxam, Sathern v. Swanwick, Scott V. Pettit, Scovell V. Tanner, Shadbolt v. Payne, Simmons v. Swift, Simpson v. Duncanson's Creditors; Slade V. Jendwine, Slubey v. Heyward, Smart v. Begg, Smith V. Field, Smith V. Gross, Smith V. M'Ewen, Sommerville v. Brown, Spalding v. Buding, Spence v. Clarke, Stein V. Hutchison, 134 159 481 48 194 231 222 79 37 813 433 808 841 186 254 591, 657 741 151 308, 327 809 212, Stein's Creditors v. Steuart, 585 Steuart v. Stein's Creditors, 585 Stevenson v. Dalrymple, 839 Stoddart v. Stoppel, 772 Stoppel V. Stoddart, 772 Stoveld v. Hughes, 205, 657 Street v. Blay, 460 Swain v. New, 90 Swanwick v. Sathern, 194 Swift V. Simmons, T. Tanner v. Scovell, 37 222 Tarling v. Baxter, 1 Tempest v. Fitzgerald, 473 Thwaites v. Bhode, 469 Towers v. Barrett, 456 Townley v. Crump, 206 u. ITrborne v. Jenkins, 152 W. Wallace v. Breeds, 43 Waring v. Cox, 147 Watson V. Hawes, 196 Watt V. Glen, 855 Wells V. Power, 449 Wentworth v. Outhwaite, 239 Weston V. Downes, 451 Westzinthius, 150 Whale V. Payne, 452 Whitehead v. Anderson, 280 Whitehouse v. Frost, 6 Williamson's Creditors v. Tetts, 720 Withers v. Lyss, 194, 204 Woods v. Eussell, 303, 327 Wyatt V. Randean, 477 Y. Yates V. Dixon, 55 Yetts T. Williamson's Creditors, 720 Zagury v. Furnell, 44 LEADING CASES COMMERCIAL LAW OF ENGLAND AND SCOTLAND. CONTRACT OF SALE. IN ENGLAND THE SALE OP A SPECIFIC SUBJECT, WHERE NOTHING KEMAINS TO BE DONE BT THE SELLER BEFORE IT IS TO BE DELIV- ERED, PASSES THE PROPERTY IN THE SUBJECT TO THE pArCHASEK WITHOUT DELIVERY, AND IP INJURED OR DESTROYED AFTER THE SALE, THE LOSS FALLS UPON THE PURCHASER, AND THE SELLER IS ENTITLED TO PAYMENT OF THE PRICE. I.— TABLING V. BAXTER. Hilary Term, 1827.— B. 6 B. & C. 360. Eng. Com. Law Reps., toI. 13. Assumpsit to recover back £145 paid by the plaintiff to the defend- ant's use. The declaration contained counts for money had and re- ceived, and the other common counts. Plea, general issue, with a notice of set-off for goods sold and delivered and bargained and sold. At the trial before Abbott, C. J., at the London Sitting after Hilary Term, 1826, a verdict was found for the plaintiff for £145, subject to the opinion of this Court on the following case. ^ On the 4th of January 1825, the plaintiff bought of the defendant a stack of hay belonging to the defendant, and then standing in a field belonging to the defendant's brother. The note signed by the defend- ant, and delivered to the plaintiff, was in these words : — " I have this day agreed to sell James *Tarling a stack of hay, standing in p ^o -, Canonbnry Field, Islington, at the sum of one hundred and for- L J ty-five pounds, the same to be paid on the 4th day of February next, and to be allowed to stand on the premises until the 1st day of May next." And the following note was signed by the plaintiff, and deliv- January, 1855. — 1 A ROSSON COMMERCIAL LAW. ered to the defendant : — " I have this day agreed to buy of Mr. John Baxllfr, a stack of Hay, standing in Canonbury Field, Islington, at the sum of £145, the same to be paid on the 4th day of February next, and to be allowed to stand on the premises until the 1st day of May next, the same hay not to be cut until paid for. January 4th, 1825." At the meeting at which the notes were signed, but after the signature thereof, the defendant said to the plaintiff, "You will particularly oblige me by giving me a bill for the amount of the hay." The plaintiff rather objected. The defendant's brother, S. Baxter, on the 8th of the same month of January, took a bill of exchange for £145 to the plaintiff, drawn upon him by the defendant, dated the 4th of January 1825, pay- able one month after date, which the plaintiff accepted. The defendant afterwards indorsed it to George Baxter, and the plaintiff paid it to one Taylor, the holder, when it became due. The stack of hay remained on the same field entire until the 20th of January 1825, when it was acci- dentally wholly consumed by fire, without any fault or neglect of either party. A few days after the fire, the plaintiff applied to the defendant to know what he meant to do when the bill became due ; the defendant said, "I have paid it away, and you must take it up, to be surejl have nothing to do with it. Why did you not remove the hay ?" The plaintiff said, " he could not, because there was a memorandum ' that it should not be removed until the bill was paid ;' would you have suffered it to be removed V and the defendent said " certainly not." The defendant's set-off was for the price of the hay agreed to be sold as aforesaid. The question for the opinion of the Court was. Whether the plaintiff under the circumstances was entitled to recover .the sum of £145, or any part thereof. Chiity for the Plaintiff. — The loss in this case must fall upon the de- r *q -1 fendant. There is a difference between the two 'contracts ; the L J one contains a stipulation not in the other, that the hay was not to be cut until paid for. Now if that be a material part of the contract,- then there was no one sufiScient contract in writing to satisfy the statute of frauds ; but assuming that there was a complete contract of sale without tjie stipulation, and that the plaintiff thereby consented to waive a right which he otherwise would have had, still the property in the hay had not passed to the vendee, because this was a sale upon credit, and the vendee was not entitled to have possession of the goods until the credit expired ; and if so, the property did not vest in him until the credit expired. [Holrotd, J — In Comyn's Dig. tit. Agreement, (B. 3,) it is laid down, " that if a sale be of goods for such a price, and a day of payment limited, the contract will be good, and the property altered by the sale, though the money be not paid ;" and E. 10 H. 7, 8 a, 14 H. 8, 20 a, and Dyer, 30, a, are cited. And again, " If A. sell a horse to B. upon condition that he pay £20 at Christmas, and after- wards sell it to D., the sale to D. is void, though B. afterwards do not pay," and Plowden's Com. 432 b, is cited, and the reason there given is, that A. at the time of the second contract had no interest in nor property, nor possession of the horse nor anything but a condition, and OONTRAOTOFSALE. 3 therefore the second contract was merely void.] It is true that in Noy's Maxims, p. 88, it is laid down, that " if I sell my horse for money I may keep him until I am paid, but I cannot have an action of debt un- til he be delivered, yet the property of the horse is by the bargain in the bargainee or buyer; but if he presently tender me my money and I refuse it, he may take the horse or have an action of detinue." But that relates clearly to the case of a ready money bargain. In Goodall V. Skclton, 2 H. Bl. 316, A. agreed to sell goods to B., who paid a cer- tain sum as earnest; the goods were packed in cloth furnished by the buyer, and deposited in a building belonging to the seller until the buyer should send for them, but the seller declared at the same time that they should not be carried away till he was paid. It was held that the seller could not maintain an action for goods sold and delivered. In the present case the hay was to remain in possession of the seller, and not to be cut till paid for. This is distinguishable, therefore, from Hinde v. Whitehouse, 7 East, 558, *where sugars in the king's r- ^a-, warehouse were held to pass to the buyer by the contract of sale, L J although the duties were not paid. It is more like Tempest v. Fitzger- ald, 3 B. & A. 680, where the purchaser of a horse for ready money rode the horse, and requested that it might remain in B.'s possession for a further time, at the expiration of which he promised to fetch it away and pay the price. This was assented to by the seller, and it was h«ld that the seller could not recover on a count for horses bargained and sold," there having been no acceptance of the horse within the meaning of the statute of frauds. Baylet, J. — It is quite clear that the loss must fall upon him in whom the property was vested at the time when it was destroyed by fire. And the question is in whom the property in this hay was vested at that time ? By the note of the contract delivered to the plaintiff, the defendant agreed to sell the plaintiff a stack of hay standing in Canonbury Field, at the sum of £145, the same to be paid for on the 4th day of February next, and to be allowed to stand on the premises until the the 1st day of May next. Now, this was a contract for an immediate, not a prospective sale. Then the question is. In whom did the property vest by virtue of this contract ? The right of property and the right of possession are distinct from each other; the right of possession may be in one person, the right of property in another. A vendor may have a qualified right to retain the goods unless payment is duly made, and yet the property in these goods may be in the vendee. The fact in this case, that the hay was not to be paid for until a future period, and that it was not to be cut until it was paid for, makes no dif- ference, provided it was the intention of the parties that the vendee should, by the contract, immediately acquire a right of property in the goods, and the vendor a right of property in the price. The rule of law is, that where there is an immediate sale, and nothing remains to be done by the vendor as between him and the vendee, the property in the thing sold vests in the vendee, and then all the consequences resulting from the vesting of the property follow, one of which is, that if it be destroyed, the loss falls upon the vendee. The note of the buyer im- 4 EOSSONCOMMERCIAL LAW. r *f; n por's also an immediate, perfect, absolute agreem£nt of sale. *Ifc <- -I seems to me that the true construction of the contract is, that the parties intended an immediate sale, and if that be so, the property vested in the vendee, and the loss must fall upon him. The rule for entering a nonsuit must therefore be made absolute. HoLROYD, J.— ^I think that in this case there was an immediate sale of the hay, accompanied with a stipulation on the part of the vendee, that he would not cut it till a given period. Now, in the case of a sale of goods, if nothing remains to be done on the part of the seller, as between him and the buyer, before the thing purchased is to be deli- vered, the property in the goods immediately passes to the buyer, and that in the price to the seller ; but if any act remains to be done on the ■part of the seller, then the property does not pass until that act has been done. I am of opinion, therefore, in this case, not only that the property immediately passed to the buyer by the contract, but that the seller thereby immediately acquired a right in the price stipulated to be paid for the goods, although that was not to be paid until a future day. The property having passed to the vendee, and having been accident- ally destroyed before the day of payment, the loss must fall upon him. LiTTLEDALE, J The parties on the 4th of January stipulated for the sale and purchase of a stack of hay, to be paid for in a month. Thus the case would have stood, but for the note of the contract delivered to the buyer, and in that there was a stipulation, that the purchaser should not cut until the money was paid, but the property in the hay had already passed by the contract of sale to the purchaser, and the latter afterwards merely waived his right to the immediate possession. Then the property having passed to the buyer, the loss must fall upon him, and, consequently, this rule for entering a nonsuit must be made absolute. Kule absolute. [*6] *II. — WHITEHOUSE v. EEOST. July 6, 1810.— E. 12 East, 613. Tn trover to recover the value of some oil, the property of the bank- rupt, wLish was tried at Lancaster in March last, a verdict was found for the plaintitis for ;fi390, subject to the opinion of the Court on the following case : — The plaintiffs are assignees of John Townsend, late a merchant at Liverpool : the two Frosts are merchants and partners in Liverpool ; and the other defendants, Button and Bancroft, are also merchants and part- ners in the same town. On the 7th of February, 1809, Townsend purchased from the defendants, J. and L. Frost, 10 tons of oil, at £39 per ton, amounting to £390, for which Townsend was to give his accept- ance, payable four months after date ; and a bill of parcels was rendered to Townsend by the Frosts, a copy of which is as follows : — "Liverpool, 7th Feb. 1809. Mr. John Townsend, bought of J. and L. Frost, ten CONTRAOTOFSALE. tons Greenland whale oil in Mr. Staniforth's cisterns, at your risk, at £39, £390 Cr. 1809. Feb. 14. By acceptance, . . • £i90 For J. and L. F., William Pembeeton." The said 10 tons of oil at the time of his purchase were part of 40 tons of oil lying in one of the cisterns in the oil house at Liverpool, the key of which cistern was in the custody of the other defendants, Dutton and Bancroft, who had before th&t time purchased from J. E. and J. Freme, of Liverpool, merchants, the said 40 tons of oil in the same cistern ; and upon such purchase, received from the Fremes the key of the cistern. Afterwards Dutton and Bancroft sold 10 of the 40 tons they had so bought (being the 10 tons in question) to the defendants, the Frosts, who sold the same in the manner before stated to Townsend. On the 7th of February, the day on which Townsend bought the 10 tons of oil, he received from the defendants. Frosts, an order on Dutton and Bancroft, who held the key of such cistern, they having other interest therein as aforesaid, to deliver to him, Townsend, the said 10 tons of oil, a copy of which is as follows : — " Messrs. Duttpn and Bancroft, please to deliver the bearer, Mr. John Townsend, 10 tons Greenland whale oil, we purchased from you 8th Nov. last. (Signed) J. and L. Frost." The order was taken to Dutton and Bancroft *by Town- p «i, -. send, and accepted by them upon the face of the order as follows : L J "1809. Accepted, 14th Feb. Button and Bancrott." Townsend, according to the terms of the bill of parcels, namely, on the 14th of February, 1809, gave to the defendants, Frosts, his acceptance for the amount of the oil, payable four months after date ; but which acceptance has not been paid. Townsend never demanded the oil from Dutton and Bancroft, who had the custody of it. The oil was not subject to any rent ; the original importer having paid the rent for twelve months, and sold it rent free for that time, which was not expired at Townsend's bankruptcy. On the 23d of May, 1809, about three months after the purchase of the 10 tons of oil, a commission of bankrupt issued against Townsend, under which he was duly declared a bankrupt, and the plaintiffs appointed his assignees. At the time of the purchase, and also at the time of Townsend's being declared a bankrupt, the oil was lying in the cistern mixed with other oil in the same j and some time afterwards the defendants refused to deliver the same to the plaintiffs, notwithstanding a demand was inade for the same by the assignees, and a tender of any charges due in respect thereof. When the whole of the oil lying in any of the cisterns in the oil house is sold to one person, the purchaser re- ceives the key of the cistern ; but when a small parcel is sold the key remains with the original owner ; and the purchaser is charged, in pro- portion to the quantity of oil sold, with rent for the same, until delivered out of the oil housed unless such rent be paid by the original importer, as was the fact in the present case. If the plaintiffs were entitled to recover, the verdict was to stand : if not, a nonsuit was to be entered. There was a similar action by the same plaintiffs against J. E. Freme and J. Freme, Dutton, and Bancroft, the circumstances of which were in substance the same. 6 EOSSONOOMMEEOIALLAW. Js. Clarke, for the Plaintiffs, contended that there was such a con- structive delivery of the 10 tons of oil to the bankrupt before his bank- ruptcy, as was sufficient to vest the property of it in him. The oil was at the time in the hands of third persons, who had the key of the ware- house ; and therefore the vendors could not make an actual or manual P^g-, delivery *of it, or of thei key of the warehouse; but they did L -l that which was equivalent; for they gave to Townsend an order of delivery upon their immediate vendors, who continued to retain the actual custody of it blended with the remainder, their own property ; and by their acceptance of that order, they must be taken to have agreed to hold the 10 tons as bailees of the vendee. In Kugg v. Minett, 11 East, 217, Lord Ellenborough said, " that everything having been done by the sellers which lay upon them to perform, in order to put the goods in a deliverable state in the place from whence they were to be taken by the buyers, the goods remained there at the risk of the latter : and that distinguishes this case from Hanson v. Meyer, 6 East, 614, where the vendor gave a note to the vendee addessed to the warehouse-keeper, directing him to weigh and deliver to the vendee all his starch : there, something remained to be done, namely, the weighing by the warehouse- keeper, before the property passed. But here, it is expressly stated in the bought and sold note of the 7th of February, that the 10 tons in Mr. Staniforth's cistern were at the risk of Townsend, the purchaser. So in Harman and others, Assignees of Dudley, a Bankrupt, v. Ander- son, 2 Camp. 243, the purchaser of goods having received from the ven- dor an order for the delivery of them addressed to the wharfinger in whose warehouse the goods lay, the lodging of such order with the wharfinger by the purchaser was held by this Court to be a complete delivery to him, so as to take away the vendor's right to stop the goods in transitu. And in Chaplin v. Kogers, 1 East, 192, which was the case of a sale of a haystack, Lord Ken yon said, "where goods are pon- derous and incapable of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tan- tamount, such as the delivery of the key of a warehouse in which the goods are lodged, or by delivery of other indicia of property." And Elmore v. Stone, 1 Taunt. 258, is strong to the same effect ; for there the agreement of the vendor himself to keep the horses at livery which he had sold to the vendee was held to be a sufficient delivery to take the case out of the statute of frauds. [Lord Ellenborough, C. J. — The general doctrine will not be disputed, that there may be a symbolical j-^g-, delivery of goods. It was *lately held in a case in the House L J of Lords that there might be an executed delivery of goods with- out any change of place of them. The only argument I presume will be, that the 10 tons of oil, before they were measured out from the whole quantity, were not in a deliverable state, and that till that was done they were not capable of delivery : I do not mean to say what the value of that argument is.] They drawing of that off from the rest was not to be the act of the vendors but of the vendee ; and that is the distinction, that nothing here remained to be done by the vendors. Scarlett, contra, relied on the circumstance, that the 10 tons till OONTRAOI OF SAIiE. 7 measured off were not in a deliverable state in fact, and if so, there could not be a symbolical delivery of them. No specific 10 tons were vested in the Frosts, and therefore none such could be conveyed to the bank- rupt : in such a case the measuring off must of necessity precede the vesting of the property. [G-rose, J. — Supposing a third person had taken the whole 40 tons tortionsly, could not the vendee have brought his action of trover for the 10 tons ?] As against a wrong-doer perhaps the Court would not regard the actual condition of the property. But suppose 30 of the tons were tortiously taken, how could it be told whether the 10 which remained were or were not the specific tons belonging to the vendee ? [Le Blano, J. — The same objection might be made if the vendeehadpaidforthelOtons. LordELLENBOROUGH, C.J Suppose the whole had been distrained for rent due from Button and Bancroft, whose share would cover the rent, and Townsend had brought replevin, and recovered, would the Sheriff have to measure out the 10 tons ? I throw it out for consideration : perhaps he would incidently have the power of dividing it, the quantity being certain. It is a different case where the goods remain in the same hands, as the bailee of the vendee, or as the original seller : in the former case the vendor holds them in a new charac- ter.] Here there was nothing to discriminate the specific 10 tons from the rest. Lord Ellenborough, C. J. — This case presents a difference from the ordinary cases which have occurred where the sale *has been of i- ,-i n -■ chattels in their nature several, and where the transfer of the pro- L J perty from the vendor by means of an order for delivery addressed to the wharfinger or other person in whose keeping they were, and accepted by him, has been held to be equivalent to an actual delivery ; the goods being at the time capable of being delivered. Here, however, there is this distinguishing circumstance, that the 10 tons of oil till measured off from the rest was not capable of a separate delivery ; and the question is, whether that be a dictinction in substance or in semblance only ? The whole 40 tons were at one time the property of Button and Bancroft, who had the key of the cistern which contained them ; and they sold 10 tons to the Frosts, who sold the same to Townsend, the bankrupt, and gave him< at^the same time an order on Button and Bancroft for the delivery to him of the 10 tons. To that order Button and Bancroft attorn, as I may say ; for they accept the order, by writing upon it " Accepted, 14th of Feb. 1809," and signing their names to it. From that moment they became the bailees of Townsend the vendee : the goods had arrived at their journey's end, and were not in transitu : all the right then of the sellers was gone by the transfer, and they could no longer control that delivery to which they had virtually acceded by means of their order on Button and Bancroft accepted by the latter. The question of stopping in transitu does not arise, taking the Frosts to be the original seller, as between them and the bankrupt ; the oil had never been in the hands of the Frosts ; they only assigned a right to it in the hands of the common bai\ees, which before had been assigned to them. Grose, J There can be no doubt that at the time of Townsend's bankruptcy the 10 tons of oil in the cistern were at the risk of the bank- 8 KOSSONOOMMEROIALLAW. rupt. All the delivery which could take place between these parties had taken place. Dutton and Bancroft, who had the custody of the whole in their cistern, had accepted the order of the sellers for the delivery to the bankrupt, and it only remained for Townsend, together with Dutton and Bancroft, to draw off the 10 tons from the rest. Le Blanc, J. — Dutton and Bancroft had sold the 10 tons of oil in r «n n *q"estion (which was part of a large quantity, the whole of which L J was under their lock and key) to the Frosts who sold the same to Townsend ; and there is no claim on the part of the defendants, Dutton and Bancroft, to detain the oil for warehouse rent. The Frosts never had any other possession of the oil than through Dutton and Bancroft ; but they gave to Townsend an order on these latter to deliver it to him ; and after the acceptance of that order Dutton and Bancroft held it for his use. But something, it is said, still remained to be done, namely, the measuring off of the 10 tons from the rest of the oil. Nothing, however, remained to be done in order to complete the sale. The objection only applies where something remains to be done as between the buyer and seller, or for the purpose of aseertdining either the quantity or the price ; neither of which remained to be done in this case ; for it was ad- mitted by the persons who were to make the delivery to Townsend, that the quantity mentioned in the order was in the cistern in their custody ; for they had before sold that quantity to the Frosts, of whom Townsend purchased, it, and had received the price. Therefore though something remained to be done as between the vendee and the persons who retained the custody of the oil, before the vendee could be put into separate pos- session of the part sold, yet as between him and his vendors nothing re- mained to perfect the sale. Baylet, J. — There is no question of transitus here : the goods were at their journey's end. When therefore Dutton and Bancroft, who were then the owners of the whole, sold 10 tons of the oil to the Frosts, those 10 tons became the property of the Frosts ; and when they sold the same to Townsend, and gave him an order upon Dutton and Ban- croft for the delivery of the 10 tons purchased of them, the effect of that order was to direct Dutton and Bancroft to consider as the property of Townsend the 10 tons in their possession, which before was consi- dered as the property of the Frosts : and by the acceptance of that order Dutton and Brancroft admitted that they held the 10 tons for Townsend, as his property, and he had a right to go and take it, without the interference of the Frosts. Postea to the Plaintiffs. [*12] *III. — ALEXANDEE v. GARDNER. May 6, 1835.— E. 1 Bing. 611. Eng. Com. Law Reps., vol. 8. Assumpsit for goods bargained and sold, under the following cir" cumstances : — The plaintiffs, merchants in London, and agents for Irish houses in CONTRACT OF SALE. 9 the sale of butter, being in expectation of a cargo from Murphy of Sligo, entered, by means of their broker, into the following contract with the defendants : — "London, October 11,1833. — Sold to Messrs. William Gardner and Son for account of Mersrs. Alexander and Co., 200 firkins Murphy and Co.'s Sligo butter, at 71s. 6s. per cwt. free on board for first quality ; 4s. and 6s. difiference for inferiors. Payment, bill at two months from the date of landing. To be shipped this month. An average for weights and tares within six days of landing, if required." On the 11th of November, the plaintiffs received from Murphy the invoice and bill of lading of these butters, and also the intelligence that, owing to there having been no ship in the port of Sligo bound for London, the butter had not been shipped till the 6th of November. This circumstance was immediately communicated to the defendants, who at first refused to abide by the contract, on the g?ound that the butters were to have been shipped in October. In a little time, however, they abandoned their objection, and consented to retain the invoice and bill of lading which had been delivered to them on the 12th of November. The invoice, which described the butters in detail as to weight, number of casks, &c., was addressed to the plaintiffs ; but upon handing it over, their name had been struck out, and the name of the defendants substituted, as is usual in the trade. The bill of lading described the casks by the marks and several quantities, and directed them to be delivered to the plaintiffs. In December 1833, the greatest part of the butters was lost by ship- wreck on the coast of Galway, and a small part of them arrived in a damaged state : whereupon the defendants, not having effected any insurance, refused to pay. At the trial before Tindal, C. J., it was contended on their part that, under the circumstances above stated, the action for *goods r^^ioT bargained and sold did not lie ; and that the plaintiffs, in order L J to recover, should have declared specially on the contract of the 11th of October, alleging and proving that the goods had been shipped in October, and duly landed ; since, according to the contract, payment was not to be made till two inonths after landing. The jury found that the condition for shipping in October had been waived by the defendants, and returned a verdict for £414, the contract price of the butters. Tal/ourd, Serjt., pursuant to leave reserved at the trial, obtained a rule Nisi for setting aside this verdict and entering a nonsuit on the ground above stated. He relied mainly on Simmons v. Swift, 5 B. & C. 857, where the owner of a stack of bark entered into a contract to sell it at a certain price per ton, and the purchaser agreed to take and pay for it on a day specified, and a part was afterwards weighed and delivered to him : it was held, that the property in the residue did not vest in the purchaser until it had been weighed, that being necessary in order to ascertain the amount to be paid : and that, even if it had vested, the seller could not, before that act had been done, maintain an rO HOSSONCOMMERCIALLAW. action for goods sold and delivered. From that ease it followed that an action for goods bargained and sold will not lie, unless the property in the goods passes to the purchaser at the time of the bargain. But so far was the property here from passing to the defendants at the time of the bargain, that at that time the goods were not in the plaintiffs' hands, or, for aught that appeared, in existence. And the principle established by Goss V. Lord Nugent, 5 B. & Add. 58, that when the time for delivery is fixed by a written contract, it cannot be extended by oral agreement, afforded a strong argument to show that the plaintiffs should have set out in their declaration the special circumstances of their demand. Bompas, Serj-t., and Martin showed cause. — The action for gopds bai;gained and sold will lie ; for the property in the butters passed to the defendants by the contract. ' It was not necessary to that end, that they should have been in the actual possession of the plaintiffs. The r*14.T '°^°i''^ ^^^ ''i^l "^ lading *were symbols of possession, and by L -I the transfer of those symbols the property passed to the defen- dants ; Lickbarrow v. Mason, 2 T. R. 63, Haille v. Smith, 1 B. & P. 563, Cuming v. Brown, 9 East, 506, Barrow v. Coles, 8 Camp. 92. The plaintiffs had no longer an insurable interest ; Hibbert v. Carter, 1 T. R. 745. In Simmons v. Swift the bargain was held incomplete, because something remained to be done on the part of the vendor, namely, the weighing a part of the bark ; but here, at the time of the contract, the quantity, quality, weight, and price of the butters, were all ascertained by the contract itself. Rhode v. Thwaites, 6 B. & C. 388, Atkinson v. Bell, 8 B. C. 277, and Elliott v. Pybus, 10 Bing. 512, are strong authorities for the plaintiffs. The condition for shipping in October was expressly waived by the defendants ; there was no agreement for extending the time ; and therefore Goss v. Lord Nugent has no application. Even if the contract here were conditional, the condition having been waived, it was not necessary to declare specially; 2 Wms. Saund. 269 b. note. As to the objection that the goods were to be paid for in two months after landing, that was a stipu- lation ascertaining only the time of payment, and not rendering the landing a condition precedent. In Fragano v. Long, 4 B. & C. 219, where the vendee, resident at Naples, sent an order to the vendors at Birmingham, " to despatch to him certain goods, on insurance being effected ; terms, three months' credit from the time of arrival j" the vendors (having marked the package with the vendee's initials) despatched the goods by the Canal to Liverpool, and effected an insurance declaring the interest to be in the vendee. At Liverpool the goods were delivered by the agent of the vendors to the owner of a vessel bound to Naples, through whose negligence they were damaged ; it was held, that the property of the goods vested in the vendee as soon as they were despatched from Birmingham ; that the terms of the order did not make the arrival of the goods at Naples a condition precedent to his liability to pay for them ; and that he might therefore maintain an action for the injury don« to the goods through the negligence of the shipowner. Talfaurd and Kelly in support of the rule Looking to this trans- CONTRACT OF SALE. 11 action, *it was not a contract for the bargain and sale of goods j.^,.-. at the time of the contract, and did not become so by any L J subsequent circumstances. For — First, The plaintiffs did not make out their ease by showing simply the indorsement of the bill of lading : th^ were obliged to connect it with, and to produce the special contract: Secondly, The goods were not in their possession even when the bill of lading was transferred : and— Lastly, The landing of the goods was a condition precedent to their being paid for ; and as the contract was in writing, the condition for shipping in October could not b^ waived orally. In none of the cases cited were there any special provisions in the contract, with reference to which the rights of the parties were to be de- cided ; and in all of them the' goods sold were in the possession of the vendors : but here the plaintiffs, not being in possession of the goods, were not in a situation to carry the contract absolutely into effect. If Fragano v. Long had been an action for goods bargained and sold, it would have afforded an answer to the objection made in this case, that the landing of the goods was a condition precedent to the property vest- ing in the defendants : but it was an action by the purchaser of goods against a shipowner for negligence in conveying them j and the purchaser having actually insured the goods, was the party at whose risk they were carried. Here the defendants had not insured, and for the reasons before urged, were not the responsible proprietors. TiNDAL, C. J The question in this cause is, Whether an action for goods bargained and sold is maintainable against the defendants ? They contend, that such an action does not lie against them; but that, under the circumstances of the case, the plaintiffs should have declared spe- cially. The original contract was made on the 11th of October 1833, in which contract it is stated that the plaintiffs sold to the defendants 200 firkins of Sligo butter, free on board, at 71s. Qd. per cwt. : that the goods were to be shipped in the course of that month, and that payment was to be by a bill of exchange, payable two months after the landing of the goods. *Upon this contract three objections have been raised to the riifj-i action for goods bargained and sold. L -^ First, That the butters were not in the possession of the plaintiffs at the time of the contract. Secondly, That they were not shipped in October as the contract re- quired; and. Thirdly, That as the payment was to be at two months after the land- ing of the goods, and as the goods were never landed, such payment could not be required. Notwithstanding these objections, I think the contract was to pay for goods bargained and sold, and that the declaration to that effect is in the proper form. And I agree that the plaintiffs must show that the property in the goods passed to the defendants by the contract : for, unless, it did, the goods were not bargained and sold to them. 12 ROSS ON COMMERCIAL LAW. But as to the first objection, if the goods were ascertained and accepted before the action was brought, it is no objection that they were not in the possession of the plaintiffs at the time of the contract. In Rhode v. Thwaites, 6 B. & C. 388, the vendor having in his warehouse a quantity of sugar in bulk, agreed to sell twenty hogsheads : four hogsheads were delivered ; the vendor filled up and appropriated to the vendee sixteen other hogsheads ; informed him that they were ready, and desired him to take them away; the vendee said ho would take them as soon as he could : and it t^s held, that the appropriation having been made by the vendor and assented to by the vendee, the sixteen hogsheads thereby passed to the latter ; and that their value might be recovered by the ven- dor under a count for goods bargained and sold. Here it is impossible to say the goods were not ascertained and accepted before the action was brought ; for the quantity, quality, and price, were all specified in the invoice ; and the bill of lading was regularly indorsed to and accepted by the defendants. But then it is said, that the shipping of the goods in October was a condition precedent to any claim on the defendants. If the defendants had in the first instance repudiated the bargain on that ground, it is true no action would have lain against them. But it is found by the jury P^^„^ that they waived the objection; *and this being only a parol L J contract, if the party waives the condition he is in the same as if it had never existed. The third objection to the plaintiffs' recovery is, that the butters were to be paid for by a bill at two months after landing. But the object of that stipulation was merely to fix the time of payment, and not to make the landing a condition precedent. For that point it is enough to refer to the decision in Fragano v. Long. The present case, therefore, is brought within the result of all the decisions, as stated by Serjt. Williams, in the note 2 Wms. Saund. 269 b. Here the action was not brought till long after the two months which would have succeeded the landing of the goods, if they had arrived in the ordinary course. The plaintiffs, therefore, being in the situation of one who has parted with his goods, and the defendants of one who has received them upon an engagement to pay, the action will lie, and this rule must be discharged. Park. J. — I entirely concur. The condition for shipping the goods in October having been waived, the question is, whether an action lies for goods bargained and sold ? and that turns on the question, whether or not there has been an acceptance of the goods by the defendants ? I think there has, and that an action might have been maintained even for goods sold and delivered ; but it is sufficient to say, that the right to sue for goods bargained and sold is complete. The defendants' argument turns on the principle, that goods sold remain at the risk of the vendor, till everything is done to complete the contract : Hinde v. Whitehouse, 7 Bast, 558 ; or till a specific appropriation has taken place. But that having been effected here by the transfer of the bill of lading, the case falls within the principle of Rhode v. Thwaites, and Fragano v. Long. CONTRACT OF SALE. 13 We have been pressed with the authority of Simmons v. Swift. There, the owner of a Btack of bark entered into a contract to sell it at a certain price per ton, and the purchaser ageed to take and pay for it on a day specified ; and a part was afterwards weighed and delivered to him : it was held that the residue did not vest in the purchaser until it had been weighed, that *being necessary in order to ascertain the amount ps-io -, to be paid; and that, even if it had been vested, the seller could <- -I not, before that act had been done, maintain an action for goods sold and delivered. In that I entirely concur. But see what the case was in Rhode V. Thwaites. There the vendor having in his warehouse a quan- tity of sugar in bulk, agifeed to sell twenty hogsheads : four hogsheads were delivered to the vendee; the vendor filled up and appropriated to the vendee sixteen other hogsheads, informed him that they were ready, and desired him to take them away. The vendee said he would take them as soon as he could. It was held, that the appropriation having been made and assented to, the property in the sixteen hogsheads passed to the vendee, and that their value might be recovered by the vendor under a count for goods bargained and sold. And the argument that the arrival and landing of the goods was to be a condition precedent to payment, is answered by Fragano v. Long. There the vendee, resident at Naples, sent an order to the vendors, hardwaremen at Birmingham, " to dispatch to him certain goods, on insurance being effected ; terms, three months' credit from the time of arrival." The vendors despatched the goods by the Canal to Liverpool, and effected an insurance, declar- ing the interest to be in the vendee : at Liverpool the goods were de- livered by the agent of the vendors to the owner of a vessel bound to Naples, through whose negligence they were much damaged : it was held, that the property in the goods vested in the vendee as soon as they were despatched from Birmingham ; that the terms of the order did not make the arrival of the goods at Naples a condition precedent to a lia- bility to pay for them ; and that the vendee might therefore maintain an action for the injury done to the goods through the negligence of the shipowner. That case, therefore, and the case of Rhode v. Thwaites, entirely war- rant our present decision. G-ASELEE, J. — The Chief- Justice and my Brother Park having gone so fully into the case, I shall only observe that here the invoice specifies the weight and price of all the goods. BosANQUET, J. — I think that this was a contract executed, r^^iq-i *and that therefore the plaintiff has properly declared for goods L J bargained and sold. It is not necessary for the support of such an action that the goods should be actually in the possession of the vendor. Here he was entitled to the possession, and has done all that was required on his part to render the transfer effectual. It is said he should have de- clared specially, showing the performance of the condition precedent as to the time of shipping, or a waiver of it in writing. If the contract containing the condition had been by deed, that doctrine might have ap- plied, but this was a parol contract, and the condition might be waived without a writing. A contract must be declared on according to its January, 1855. — 2 14 ROSS ON COMMERCIAL LAW. legal effect; and the effect of all the circumstances here is, to render it a contract without a condition. The objection that the arrival of the goods was a condition precedent to payment is answered by the case of Fragano v. Long, where it was decided that the property in the goods vested in the vendee as soon as they were despatched from Birmingham; that the terms of the order did not make the arrival of the goods at Naples a condition precedent to the vendee's liability to pay for them ; and that he might therefore maintain an action for the injury done to the goods through the negligence of the shipowner. Here, the time for arrival of the goods having long since elapsed, the time for payment must also be arrived if there was to be any payment at all, and that there was to be a payment is decided by Fragano v. Long. Kule discharged. *Where something remains to be done on the part Or L ~ J THE SELLER BEFORE THE SUBJECT IS TO BE DELIVERED, THE PROPERTY IN THE SUBJECT DOES NOT PASS TO THE PURCHASER UNTIL WHAT REMAINS TO BE DONE IS COMPLETED. L — HANSON V. MEYER. July 2, 1805.— B. 6 East, 614. This was an action of trover, brought to recover the value of 33 cwt. 1 qr. 21 lb. of starch, which was tried before Lord Ellenborough, C. J., at the sittings at Gruildhall, after Trinity Term, 1803, when there was a verdict for the defendant; and a motion being made for a new trial, which was argued in last Michaelmas Term, the Court, by consent, in Hilary Term last, ordered a case to be made of the facts that were proved at the trial, which are as follows : — The plaintiffs are assignees of J. Wallace and W. Hawes, under a commission of bankrupt issued against them. The defendant is a merchant in London. In January 1801, the bankrupts employed Wright, their broker, to purchase of the defendant a quantity of starch, about four tons, belonging to the defendant, and which was then lying in the Bull Porters' warehouse in Seething lane ; and Wright accord- ingly purchased the starch of the defendant, at £6 per cwt., and sent to the bankrupts, his principals, the following note : — " Dear Sirs I have bought that small parcel of starch, which you saw, of Mr. James Meyer for your account £6 per cwt. by bill at two months; 14 days for delivery from the 14th instant." "Jan. 15th, 1801. Yours, &c. T. Wright." The starch lay at the Bull Porters'. The broker purchased for the bankrupts all Meyer's starch that lay there, more or less what- ever it was, at £6 per hundredweight : it was in papers : the weight was to be afterwards ascertained at the price aforesaid. The mode of delivery is as follows : the seller gives the buyer a note addressed to the wharehouse-keeper, to weigh and deliver the goods to the buyer. CONTRACT OS SALE. 15 This note is taken to tbe warehouse-keeper, and is his authority to weigh and deliver the goods to *the vendee. The followiDg note ^ ,„^ ^ was given by the defendant : — " To the Bull Porters, Seething L J Lane. Please to weigh qjid deliver to Messrs. Wallace and Hawes all my Starch." " Jan. 17th, 1801. Per James Meyer, William Elliott." This order was lodged by the bankrupts, at the Bull Porters' warehouse, on the 21st of January 1801, on which day the bankrupts required the Bull Porters to weigh and deliver to them 450 papers of the starch, which weighed Cwt. qra. lbs. 21 1 6 And on the 31st Jan. 250 9 1 20 And on the 2d Feb. 400 15 1 4 1100 46 2 At.which respective times the Bull Porters, in consequence of their order, weighed and delivered the same to the bankrupts, who imme- diately removed the same : the residue thereof, being 33 cwt. 1 qr. 21 lb., remained at the Bull Porters' warehouse till the failure of Wallace and Hawes. The above quantities of starch continued at the Bull Porters' warehouse, in the name and at the expense of the defendant, till they were weighed and delivered j and the residue also afterwards continued there in like manner unweighed, in his name, and charged to his expense. On the 8th of February 1801, Wallace and Hawes became bankrupts. It was admitted that the defendant, after the bankruptcy, took away the remainder of the starch that had not been so weighed. The question for the opinion of the Court was, Whether the defendant were entitled to the above verdict ? If the Court should be of opinion that he was, then the verdict was to stand : if not, then a new trial was to be granted upon such terms as the Court should direct. Humphreys, for the Plaintiffs. — This was an entire contract, which could not be severed or apportioned ; and, therefore, upon the delivery of any part of the starch to the bankrupts, the property of the whole became vested in them. It was not a contract for so many cwt. of starch, but for all the defendant's starch which lay at the Bull Porters' warehouse; the weight only of which was to be afterwards ascertained ; but *the whole was to be paid for by one bill; and there is the ^ ^^a -i more reason for holding such a contract to be entire, because the L J price of the whole may be governed by the average quality, and the part received may be the worst : or at any rate it may be an inducement to a purchaser to give more for the whole than he would for a part, in order to withdraw so much competition out of the market. After the order for delivery, the bankrupts might have taken the whole as well as a part. In Bro. Abr. Apportionment, pi. 7, it is said, that " a contract cannot be severed or apportioned, &c., because it is entire; and if it be destroyed in part, it is destroyed in the whole." Again, Bro. Contract, pi. 84, "If a man sell a lease of land and certain clothes for JIO, the contract is entire and cannot be severed; though one of the thing? 16 ROSS ON COMMERCIAL LAW. were by a defeasible title," &o. So in Hawkins v. Cardy, 1 Ld. Eay. 360, it was ruled that a bill of exchange, being one entire contract, could not be apportioned by indorsement, so as to make the drawer liable in part to different holders. If the vendees had continued sol- vent, and after taking part of the starch a fire had consumed the remainder in the warehouse, they would still have been liable ; for after the sale, the commodity is at the risk of the vendee. Bro. Abr. Contract, pi. 26. Upon the same principle, if goods purchased are to be paid for before they are taken away, and afterwards the vendor gives the vendee liberty to take away a part without payment, that would dispense with the condition as to the remainder, according to the doctrine in Dumpor's case, 4 Rep. 119 b ; and the only remedy of the vendor would be upon the contract for the value of the goods sold. It is clear from the cases of Slubey v. Hey ward, 2 H. Blac. 504, and Hammond V. Anderson, 1 New Rep. 69, that after a part-delivery there can be no stopping in transitu, which is decisive as to the property of the whole being absolutely vested in the vendee j and yet in the latter case the vendor put in his claim before the expiration of 14 days, during which time the goods were to remain at his charge in the wharfinger's ware- house. The only distinction between the two cases is, that here the starch was to remain in the warehouse at the expense of the vendor till it was weighed ; but that was merely to ascertain the price, and r *9Q T wo^ld not alter the legal *property. It was also observed, that L -I no cases in equity had occurred which applied pointedly to the present. Fawell v. Heelis, Ambl. 724, was mentioned as coming nearest j where it was holden that a vendor of an estate, who had taken a bond for the consideration-money, had no lien on the estate against the creditors of the vendee, for whose benefit the estate was assigned ; and here the vendor had relied on the security of a bill which was to be ■given, payable at a future day. Eolroyd, contra, after observing, that it was just and reasonable that upon every sale of goods the vendor should either receive the stipulated price, or should have power to retain the goods, or so much of them as were not absolutely delivered over to the vendee upon credit, contended, 1st, That the legal property of so much of the starch as remained un- weighed in the warehouse did not pass to the vendees : or, 2ndly If it did, yet the vendor retained a lien upon it for the stipulj^ted price of the whole. 1st, On a sale of specific goods, (and these may be taken to be so, being a specific quantity of starch, though the amount was not ascer- tained at the time of the contract,) the property does not pass except upon payment, or tender of payment by the buyer, or where the time of payment is by consent postponed. Now here, by the terms of the contract, 14 days were to be allowed for the delivery on the one hand • and, on the other, the payment was to be by a bill at two months : the vendees, therefore, were not bound to pay for the starch till it was deli- vered, nor was the vendor bound to part with it till he received the bill. In Knight v. Hopper, Skin. 647, where the note of the contract of sale was to this purpose:— "Bought by Knight, of Hopper, 100 pieces of ■muslin, at 40s. per piece, t6 be fetched away by 10 pieces at a time and CONTRACT OF SALE. 17 paid for as taken away." What was relied upon by Holt, C. J., as altering the property immediately was, that the pieces were marked and sealed by the vendee ; and there too the price was fixed : but here there was no act done by the vendees to mark the goods as their own. It was not an order simply to deliver, but to "weigh and deliver;" the weigh- ing was to precede the delivery : and even the price could not be ascer- tained till they were weighed; so that till then it could *not be ^ ^oi-i known whether the vendees would pay the price or not ; but L -' certainly the vendor was not bound to part with the goods till he had a bill at two months for the ascertained value. In a case where a son employed his father to buy a frame for him, and the father purchased it in his own name, and paid part of the money, and gave a note for the rest, Holt, C. J., held, that by the payment of the money and giving the note, the property of the frame was immediately vested in the father ; and that the bill of gale which was made a month afterwards to the son did not divest the property out of the father and vest it in the son ; though it would have vested it in the son if it had been made at the time of the sale; and he added, that earnest does not alter the pro- perty, it only binds the bargain ; and the property remains in the ven- dor till payment, or delivery of the goods. In 2 Black. Com. 443, it is said that a contract executory, as if two agree to change horses next week, vests only a right; and their recipro- cal property in each other's horse is not in possession but in action, &c. ; for a contract executory conveys only a chose in action. Here then, till the goods were weighed and the price ascertained and the bill given, or at least tendered, the contract remained executory, and no property passed; but each only had his remedy upon the contract on failure of performance by the other. 2ndly, At any rate, however, if the pro- perty did pass to the vendees, the vendor had a lien on the goods for the price, or the bill, provided the vendees had remained solvent and capable of giving such a security. If the rest of the goods had remained in the vendor's own possession, there could have been no doubt that he might have retained any part for the price at least of that part. If one ordered an hundred pair of shoes of a shoemaker at so much a pair, to be paid for by a bill ; though the shoemaker had delivered half, yet if the vendee became insolvent, the tradesman would not be bound to deli- ver the remainder without payment; and yet the insolvency does not rescind the contract; but the vendor has an equitable lien for the price, and this lien continues notwithstanding even a part payment; as in Hodgson V. Loy, 7 T. R. 440, and Fife v. Wray, 3 East, 93, where part payment of the goods was holden not to divest the vendor's right to stop ^in transitu; and, a fortiori, it cannot divest his lien upon the [*25] goods while they still continue in his possession; for Lord Ken- yon himself put it upon that ground, saying, "That the right of the vendor to stop goods in transitu, in case of the insolvency of the ven- dee, was a kind of equitable lien adopted by the law for the purposes of substantial justice, and that it did not proceed on the ground of rescind- ing the contract." Then it cannot vary the case that the goods here were in the hands of a middleman ; for they remained all the time in 18 ROSSONCOMMEROIALLAW. the Bull Porters' warehouse, in the vendor's name, and at his expense. In the cases in the Common Pleas there was a severance by the vendees themselves of part of the goods from the rest, which dould not have been done without a possession of the whole by them, so as to bar the vendor's right of stopping any part as in transitu; and in Hammond v-. Anderson, 1 New Kep. 69, there was this further material circumstance, that all the goods have been weighed out to the vendee ; but cases of transitu do not affect the question of lien, which can only arise while the goods are in the actual or constructive possession of the vendor. Liens are mutual ; and a sale is only an exchange of goods for money ; but if a delivery of part of the goods contracted for, without payment, be a waiver of the vendor's lien for the price, then by payment of part of the money by the purchaser, he would waive his lien on the remain- der, which might be recovered from him by action without a delivery of the goods. Suppose an exchange of two horses for one, would a deli- very of one of the two preclude the owner's lien on the other till the delivery of the one horse for which the two were to be exchanged ? There is no distinction in reason between an exchange of goods for goods, and of goods for money. If an action be brought by a vendee, after part of the price of goods paid, he must allege that he had or offered to pay the remainder. The principle is general, that he who sues another for a breach of contract must aver performance, or what is equivalent to performance, on his part; as in Morton v. Lamb, 7 T. R. 125, and Collonel V. Briggs, Salk. 112; and, therefore, the vendor. of goods has a lien on any part of them for the price of the whole : he only lessens his security by delivering up any part before payment. r *9fi 1 Thus in Sodergren v. Flight and Jennings, before Lord *Ken- L -I yon, at G-uildhall Sittings after Trinity Term, 1796, in an action for freight, it appeared that the plaintiff was the captain and owner of a Swedish ship freighted by Shenling & Co. for London, with a cargo of tar and iron, consigned to Hippius, a merchant in London, who held two bills of lading for the same. The defendants in December, 1795, before the arrival of the ship, purchased all the tar of Hippius, and gave him their acceptances for the value, including a proper allowance for freight and duty, which were to be paid by Hippius : and Hippius indorsed the two bills of lading to the defendants, or their order ; one of which was for tar alone, 900 barrels ; the other for 850 barrels of tar, and a quan- tity of iron. Hippius sold the iron to Crawshay & Co., and for this purpose obtained from the defendants the possession of the bill of lading which included the iron, and delivered it to Crawshay & Co., concerning which there was no question. On the 11th January, 1796, the ship arrived, and was entered and reported by Hippius; and before the 25th 721 barrels of tar were delivered to the defendants. On that day Hip- pius stopped payment; on which the captain refused to deliver the remainder of the tar to the defendants, unless they would pay the freight not only of what remained, but of what had been before delivered which they refused to do : but after some dispute, the whole cargo of tar was agreed. to be delivered to the defendants, and that an action should be brought by the captain for the whole freight, in order to try CONTEACTOi'SALE. 19 the right of his lien ; the defendants having offered to pay the freight of that which remained on hoard the ship : hut refusing to pay the freight of that part which had been before delivered to them, and also of a certain portion which had been delivered out of l^c ship on board a lighter sent by the defendants to receive it, but which still lay along- side of the ship, fastened thereto by the captain's orders, to prevent ils final removal. The defendants paid into court in the action £353, Is. 2cZ., being as much as would cover the plaintiff's demand for freight on all the tar comprised in one of the bills of lading ; and each being made "unto order," he or they 'paying freight for the said goods: and the plaintiffs, under the direction of Lord Kenyon, recovered £300, 15s. lOd. beyond the money paid into court, being the entire amount of the freight for the tar; his Lordship *being of opinion that the captain had r-^n-j-i a lien on the tar remaining on board for the whole freight, as L J well the freight of the barrels delivered as of those remaining on board, belonging all to the same person, and under one consignment; but he thought that if Hippius had sold the tar to different persons, the captain could not have made one pay for the freight of what had been delivered to another. FLe Blano, J. — That was where all the goods wore received on board under one contract.] So in Lougfort v. Administra- trix of Tiler, Salk. 113, the defendant in the lifetime of the intestate, her husband, having bought of the plaintiff four tubs of tea, one of which she paid for and took away, leaving £50 earnest for the other three. Holt, C. J., held, that notwithstanding the earnest (which only bound the bargain, and gave a right to demand the rest on payment of the money) the money must be paid upon fetching away the goods, because no other time for payment was appointed ; and that if the ven- dee did not come and pay for the goods in a reasonable time, after request, the agreement was dissolved, and the vendor was at liberty to sell them to any other person. In detinue, where there had been a part delivery of a certain quantity of corn contracted for, and payment for what was so delivered, the court considered that the vendor had a lien upon the remainder for the residue of the money, and was not bound to deliver it till payment, and might plead non detinet: and the distinction was taken, that if goods be bought outright, the bargain is void if the vendee do not pay the price agreed upon immediately; but if a day of payment be appointed, the vendor shall have his action of debt, the vendee an action of detinue. As to the position in Dumpor's case, 4 Kep. 119 b, that a condition waived in part is waived in toto, it cannot apply to liens which at most are only conditions in law founded on prin- ciples of equity, and not like conditions stipulated for by the parties themselves, which are always construed strictly, being in general to defeat an estate or create a forfeiture. Humphreys, in reply, said, that the property was altered by a sale, as well where a future day of payment was given, as where the goods were paid for at the time. 1 Com. Dig. 513, *Agreement, B. r;j.oo-| 3, cites 10 H. 7, 8, a; 14 H. 8, 20, a; Dy. 80, a. It is true the L ^'^ J vendor might have withheld the order for delivery till he received the bill which was agreed to be taken for payment ; but he waived that bene- 20 BOSS ON COMMERCIAL LAW. fit, and gave an order for the delivery of the whole. Then the sever- ance of a part was as much evidence of a possession of the whole by the vendee in this case, as the late oases in the Common Pleas. Those cases went on th» ground that the sale of the goods being by one entire contract, possession of part was possession of the whole, out of which such part was taken ; and if the property passed by the contract, the payment of the warehouse rent afterwards by the vender cannot alter it. Cur. adv. vult. Lord ELLENBOROuaH, C. J., now delivered judgment. By the terms of the bargain, formed by the broker of the bankrupts on their behalf, two things, in the nature of conditions or preliminary acts on their part, necessarily preceded the absolute vesting in them of the property contracted for ; the first of them is one which does so according to the generally received rule of law in contracts of sale, viz., the payment of the agreed price or consideration for the sale. The second, which is the act of weighing, does so in consequence of the par- ticular terms of this contract, by which the price is made to depend upon the weight. The weight, therefore, must be ascertained, in order that the price may be known and paid ; and unless the weighing precede the delivery, it can never for these purposes effectually take place at all. In this case a partial weighing and delivery of several quantities of the starch contracted for had taken place j the remainder of it was un- weighed and undelivered ; and of course no such bill of two months for the price so depending on the weight could yet be given. The question is, What is the legal efiect of such part-delivery of the starch on the right of property in the undelivered residue thereof ? On the part of the plaintiffs, it is contended, that a delivery of part of an entire quan- tity of goods contracted for, is a virtual delivery of the whole, so as to r*9Q1 ^^^^ '" ^^^ vendee the entire property in the whole; although L J the *price for the same should not have been paid. This propo- sition was denied on the part of the defendant ; and many authorities have been cited on both sides : but, without deciding at present what might be the legal effect of sucb part-delivery in a case where the pay- ment of price was the only act necessary to be performed in order to vest the property; in this case another act, it will be remembered, was necessary to precede both payment of price and delivery of the goods bargained for, viz., weighing. This preliminary act of weighing, it cer- tainly never was in the contemplation of the sellers to waive in respect of any part of the commodity contracted for. The order stated in the case from the defendant to the Bull Porters, his agents, is to weigh and deliver all his starch. Till it was weighed, they as his agents were not authorized to deliver it; still less were the buyers themselves, or the present plaintiffs, their assignees, authorized to take it by their own act from the Bull Porters' warehouse ; and if they could not so take it neither can they maintain this action of trover, founded on such a sup- posed right to take, or in other words founded on such a supposed right of property in the subject-matter of this action. If anything remain to be done on the part of the seller, as between him and the buyer, before the commodity purchased is to be delivered, a complete present right of property has not attached in the buyer j and of coarse CONTEAOTOFSALE. 21 this action, -which is accommodated to and depends on such supposed perfect right of property, is not maintainable. The action failing, there- fore, on this ground, it is unnecessary to consider what would have been the eflfect of non-payment of price on the right to the undelivered resi- due of the starchy if the case had stood merely on that ground, as it did in the case of Hammond and Others against Anderson, 1 New Rep. 69 ; where the bacon sold in that case was sold for a certain fixed price, and where the weighing, mentioned in that case, was merely for the buyer's own satisfaction, and formed no ingredient in the contract be- tween him and the seller, though it formed a very important circum- stance in the case, being an unequivocal act of possession and ownership as to the whole quantity sold on the part of the buyer. In like manner, as the taking 800 bushels of wheat out of the whole quantity sold, and then on board the ship, was *holden to be in the case of Slubey - ^„^ ., V. Heywood, 2 H. Bl. 504. Without, therefore, touching the L J question which has been the main subject of argument in this case, and upon which my opinion at Nisi Prius principally turned, and without in any degree questioning the authority of the above mentioned two cases from the Common Pleas, this verdict may be sustained, on the ground that the weighing which was indispensably necessary to precede the delivery of the goods, inasmuch as it was necessary to ascertain the price to bo paid for them, had not been performed at the time when the action was brought. The verdict therefore must stand, and judgment be entered for the defendant. II. — RUGG v. MINETT. May 9, 1809.— E. 11 East, 209. In an action for money had and received by the defendants to the use of the plaintiffs, a verdict was found for the plaintiffs for £1415, subject to the opinion of the Court upon the following case : — On the 28th of April, 1808, the defendants, as prize agents to the Commissioners for the care and disposal of Danish property, put up to public sale by auction, at Dover, the cargo of a Danish ship in lots, and the lots. No. 28 to 54 inclusive, consisted of turpentine in casks. The quantity contained in each lot being marked on the catalogue thus : — 10 cwt. 3 qrs. 26 lbs., the mode of bidding was this — each lot (except the two last, which were sold at uncertain quantities) was to be taken at the weight at which it was marked, and the bidding was to be at so much per hundredweight on that quantity. The plaintiffs employed one Acres, the warehouseman of the defendants, to bid for them, and all the lots of turpentine (with the exception of three lots, which were sold to other bidders) were knocked down to Acres so acting for the plaintiffs. No conditions of sale were distributed prior to the sale; but the auctioneer before the bidding commenced, read aloud the following *conditions : — Ist, The highest bidder to be the buyer ; but if ^ ^„ ^ , any dispute should arise, the lot to be put up again. 2d, £25 <- ^ per cent, is to be paid to the auctioneer as a deposit immediately after the sale, and the remainder in 30 days. The remainder of the purchase- 22 ROSSONCOMMERCIALLAW. money is to be paid on the goods being delivered. Should the goods remain after the limited time, the warehouse rent from that time to be paid at the rate of 2s. per ton per month, by the purchaser. 3d, The goods to be taken at the neat weight printed in the catalogue. 4th, The goods to be taken away in 12 months, or resold to pay the warehouse rent. Upon failure of cflmplying with these conditions, the deposit- money is to be forfeited, and the Commissioners to be at liberty to resell any lots belonging to defaulters, by whom all charges attending the same shall be made good. Is. per lot under ^10; Is. 6d. from £10 to £25 ; and 2s. above £25, lot-money to be paid by the buyer to the auc- tioneer. Tare allowed for turpentine, Is. 5d. Upon the turpentine being put up to sale, the auctioneer, by the direction of one of the de- fendants present, announced to the bidders that the casks of turpentine were to be filled up before they were delivered to the purchasers : and that in order to effect this, the two last lots would be sold at uncer- certain quantities, and the preceding lots would be filled from them. The whole of the turpentine, with the exception of the three lots before mentioned, were sold to the plaintiflFs ; and they also were the purcha- sers of the two last lots, from which all the lots without exception were to be filled up j and those two last lots were accordingly marked by the auctioneer in his catalogue with the words " more or less." Immedi- ately after the sale £200 were paid by the plaintiff to the auctioneer, as their deposit ; and on the 9th of May 1808 the plaintiffs paid to the defendants a61715 upon account of the turpentine, and the duties pay- able thereon. The turpentine remained in the warehouses of the de- fendants as before the sale, but was entered at the custom-house at Dover, in the name of the plaintiffs, on the morning of the 10th of May 1808, before the fire, by Acres, who paid on behalf of the plain- tiffs £450 as a deposit for the duties. On the same morning the cooper, who had been employed by the defendants to make up all the casks pre- r *32 1 ^^°"^ ^° ^^^ ^^^^ °^ *'^^ *28th of April, was sent for by Acres, L J who was warehouseman to the defendants, and who acted as agent for the plaintiffs, to fill up the casks of turpentine, and he bad filled all of them except 8 or 10 ; leaving them with the bungs out to enable the custom-house officer, who was expected every minute, to take his gauge in order to ascertain the duties. The two last lots, which were sold at uncertain quantities, and marked " more or less," con- tained T»ore turpentine than was sufficient to fill up all those bought by the plaintiffs, and also those bought by the buyers of the three lots. In filling the casks sgld to the plaintiffs one of the two last lots was used, and instead of the other of the two last lots, a preceding cask in point of number, which had been found to be an ullage cask, was substituted by the cooper, and from one of the two last lots the lots sold to the other buyers had been previously filled up. All the lots sold to the other buyers had been taken away before the cooper came on the 10th • and while the cooper was employed in filling up the plaintiffs' lots and placing them ready, with the bungs of the casks out for the custom- house officer to guage, but before he had filled up all the caslrs or bunged any of them, a fire took place in the defendants' warehouse CONTRAOTOFSALE. 23 which consumed the whole of the turpentine knocked down to the plain- tiiFs ; the casks not having been weighed again by the plaintiifs, or guaged by the custom-house officer. While the money paid by the plaintiffs to the defendants on account of the turpentine remained in their hands, they received notice from the plaintiffs not to pay it over; and the present verdict is composed of that sum, deducting the £450 paid on account of the duty, which has been restored to 'the plaintiffs by the Commissioners of Customs. The question for the opinion of the Court was, whether the plaintiffs were entitled to recover back the money so paid to the defendants ? If they were, the verdict was to stand; if not, a nonsuit was to be entered. Puller, for the Plaintiffs, contended that the contract for the sale was still executory at the time of the loss by fire, inasmuch as there still re- mained something for the vendors to *do, and consequently that p „„„ , the loss must fall upon them, and not upon the vendees. By the L J conditions of sale 30 days were to be allowed to the vendees for taking the casks from the warehouse of the vendors, and before they were re- moved the vendors were out of the two last casks to fill up all the rest, so as to make them correspond with the weights at which they were marked : and that was the more material, because until it was done, it could not be ascertained what was the whole price to be paid, as those two casks were to be paid for according to their contents, after the rest were filled up : the weighing of them therefore must necessarily precede the delivery, and the remainder of the whole purchase-money was to be paid on the delivery of the goods. This brings the case within the de- cision of Hanson v. Meyer, 6 East, 614, where the vendee had agreed to purchase all the starch of the vendor then lying in the warehouse of a third person at so much per owt. by bill at two moiiths, the weight of which starch was afterwards to be ascertained, and 14 days were to bo allQwed for the delivery : and the vendor having given a note to the ven- dee addressed to the warehouseman, directing him to weigh and deliver to the vendee all his starch ; the Court held that the absolute property in the goods did not vest in the vendee before the weighing, which was to precede the delivery and to ascertain the price; and that the vendee having become bankrupt before the whole had been weighed and deliver- ed, the vendor might retain the remainder. It is true that in that case the whole was to be weighed before delivery ; and here only the two last casks : but here also all the prior casks were to be filled up, which was not done at the time of the loss ; and none of them were in a condition to be delivered, as the bungs were left out, in order to permit the custom- house officer to gauge the casks, without which they could not be removed, and it was part of the business of the vendors to replace the bungs, and put the casks in a proper condition to be delivered. In Hammond ■ v. Anderson, 1 New Rep. 69, all the bales lying at a wharf, which had been sold for an entire sum, had been taken possession of by the vendee and weighed, and part had been removed by him before his bankruptcy ; and therefore it was held that the vendor had no right to stop what re- mained in the hands of the *wharfinger. In Hinde v. White- r-i^nA -i house, 7 East, 558, though the sugars were in the king's ware- L J 24 ROSSONCOMMEEOIALIiAW. houses under the locks of the king and the owner, from whence they could not be removed till the duties were paid j which were to be paid by the sellers ; yet they have been weighed and the duties ascertained j and one of the conditions of sale at the auction was, that the sugars were to be taken with all defects as they then were, at the king's weights and tares, with the allowance of draft, or reweighed giving up the draft, to be a,t the purchaser's risk from the time of the sale ; by which latter was evi- dently meant, from the time that the lot was knocked down to the high- est bidder : and besides, the acceptance of the sample by the purchaser, as part of the thing purchased, was held to bind the sale. If a horse were sold, and agreed to be delivered by the vendor after he was shod, and the horse died before, the loss would fall upon the vendor. So here, the act of filling up the casks was to be performed by the vendors before delivery : and though if the case rested upon that circumstance alone, a distinction might be taken as to those casks which had been filled up ; yet the vendees were entitled to have the whole re-bunged before deliv- ery. [Lord ELLENBOEOtFGH, C. J., observed, that the vendees were entitled to have the' casks filled up and the bungs belonging to them j but that the vendors had no concern with the unbunging or bunging of them, the former of which was done, on account of the custom-house officer interve- ning to do his duty before the goods were removed by the vendees. And upon inquiry at whose instance the gauging was to be performed, it was admitted that the vendees could not have removed the goods till they were gauged ; and therefore the Court considered that it was their duty to get them gauged. The Court also inquired as to the number of casks which had been filled up : and it was agreed that all had been filled up except 10 ; on which they asked the defendants' counsel what answer he had to give to those 10.] Carr, for the Defendants, admitted that the vendors could not claim r*qK-i *'^s value of the two casks, out of which turpentine *had been L J taken to fill up the others, because the quantities they contained were not ascertained by weighing at the time of the loss : but with re- spect to the last 10 which had not been filled up, he still contended that the property passed by the sale; for by the contract the mark on each cask was conclusive as to the quantity, and the price being also ascertained, every thing material to the perfection of a contract of sale was complete : and at any rate the vendees should have called upon the vendors to fill up the remainder. [Lord Ellenborouqh, C. J. — Still the fact is, that by the vendors' not having filled up the last ten casks, they were not in a deliverable state at the time of the loss : and it was certainly a material act to be done, to make up the quantity marked.] The warehouseman who was to do it was the common agent of both : and this case is so far distinguishable from that of Hanson v. Meyer, that there the vendee could not have removed the goods till they were weighed ; hut here the quantity and price being ascertained, the vendees might have waived calling on the vendors to fill up the casks, and might have taken them away when they pleased. Lord EllenboeouGH, C. J. — The Court have already intimated their OONTRAOTOFSALE. 25 opinion, as to those casks in the first lots which were filled up, and on which nothing remained to he done on the part of the sellers, but only the casks were left to remain for 30 days at the option of the purchasers in the warehouse at the charge of the sellers : the payment of the warehouse rent, however, is not material in this case: 'and when the casks were filled up, everything was done which remained to he done by the sellers. It was necessary, however, that they should be gauged before they were removed, and the bungs were left out for the purpose of the ganger's doing his office, which it was the buyers' business to have performed; and therefore according to the case of Hanson v. Meyer, and the other cases, everything having been done by the sellers which lay upon them to perform, in order to put the goods in a deliverable state in the place from whence they were to be taken by the buyers, the goods remained there at the risk of the latter. But with respect to the other ten casks, as the filling them up according to the contract remained to be done by the sellers, the property *did not pass to the buyers, and there- j- ^^„ , fore they are not bound to pay for them. L J Le Blano, J. — The case is to be considered as involving so many dis- tinct contracts as there were distinct lots bought by the plaintifis. The turpentine was purchased at so much per cwt., and it was to be taken according to the weight marked on each lot j but the casks were to be filled up by the sellers out of turpentine belonging to them, in order to make the weights agree with the marks. I say belonging to the sellers, because the two last casks were only sold according as their actual weights should turn out to be, after filling up the rest : and if more turpentine had been wanted than those casks could have supplied for filling up the rest, it must have been settled which of the respective purchasers was to take less than his calculated quantity. Till the several casks, therefore, were filled up, I consider the property as remaining in the sellers. But a certain number of casks were filled up ; and with respect to them no- thing further remained to be done by the sellers. But it was necessary that the custom-house officer should gauge them before they could be re- moved. Then the warehouseman was acting as the common agent of the buyers and sellers, having filled up those casks, on the part of the sellers, left them unbunged for the purpose of the officer's ganging them, and ascertaining the duties, which was an act to be done on the part of the buyers, to entitle them to remove the goods. Then as nothing more re- mained to be done by the sellers on those casks which were filled up, they were from that time at the risk of the buyers : but those which were not filled up continued at the risk of the sellers. Bayley, J. — In many cases it happens, where everything has been done by the sellers which they contracted to do, that the property passes to the buyers, though the goods may still continue in the actual posses- sion of the sellers. It lies upon the plaintifis then to make out, that something still remained to be done to the goods by the sellers at the time when the loss happened. But with respect to those casks which had been filled up, nothing remained to be done but the gauging by the *officer, and as that waste be procured to be done by the buyers, ^ ;j,o7-| Acres, who left out the bungs for the purpose of enabling the L J 26 ROSS ON OOMMEROIAI-LAW. officer to gauge, niuat be taken to have acted as the agent of the buyers for that purpose; and therefore nothing more remained to be done by the sellers, the property passed. But with respect to the other casks, something did remain to be done by the sellers, namely, the filling them up : and it is not sufficient for them to say that they were not called upon to do so by the buyers ; for if they meant to relieve themselves from all further responsibility, they should have done what remained for them to do, and until that was done the property continued in them. Upon this it was agreed that the proportion to be allowed to the plain- tiffs on the ten casks should be settled out of Court ; and that the ver- dict should be entered accordingly. III.— SIMMONS V. SWIFT. Trinity Term, 1826.— E. 5 B. & C. 851. Eng. Com. Law Reps., vol. 11. Indebitatus assumpsit for bark sold and delivered, the usual money counts, and a count upon an account stated. At the trial before Little- dale J., at the Spring Assizes for the county of Monmouth, 1826, the jury found a verdict for the plaintiff for the sum of £106, 3s. 8c?., sub- ject to the opinion of this Court upon the following case : — The plaintiff and defendant were both dealers in timber and bark, the plaintiff resid- ing at Whitebrook, in Monmouthshire, and the defendant in the town of Monmouth. Previously to the 23d of October 1824, the plaintiff was possessed of a quantity of oak bark, which was stacked at a place called Redbrook, on the banks of the river Wye, about two miles below the town of Monmouth, and which in July preceding weighed twenty tons. Upon the 28d of October the following agreement for the sale of the said bark was signed by the plaintiff and the defendant : — "I have this day sold the bark stacked at Eedbrook, at £9, 5s. per ton of twenty-one hundredweight, to Hezekiah Swift, which he agrees to take, and pay for it on the 80th of November." r *38 1 *^^ ^^^ afterwards verbally agreed between the parties, that L J one William Simmons, a brother of the plaintiff, should see the bark weighed on behalf of the plaintiff, and one James Diggett should see it weighed on behalf of the defendant. Within five days after the signing of this agreement, the defendant sent several of his barges and his servants to Redbrook, and took a quantity of the bark, amounting to 8 tons 14 cwt. He sent for William Simmons, who was at work in a wood near to Redbrook, to see the bark weighed on behalf of his brother, which William Simmons accordingly did, and was paid for his trouble by his brother's wife. William Simmons said he was not directed by his brother to see the bark weighed, and did not know that it had been sold until he was fetched from the wood by the defendant's messenger. James Diggett attended the weighing on the part of the defendant. The bark so taken by the defendant was carried by his barges down the river Wye to Chepstow. The remainder of the stack was covered with a tar- paulin belonging to the defendant, but which tarpaulin had been upon the premises at Redbrook, having been lent by the defendant for that OONTEACTOFSALE. 27 purpose to the person who sold the bark to the plaintiff ; and had been used to cover a part of the stack before the signing of the agreement by the plaintiff and defendant. About eight or nine days after part of the bark had been so removed by the defendant, a Mr. James Madley, upon whose premises at Redbrook the bark was stacked, met the defendant, and asked him when he intended to take the remainder of the bark away, as it was stacked over part of a sawpit which he (Madley) wanted to use ; the defendant answered that he should have it taken away in a few days. The defendant did not at any time take away the remainded of the bark, nor was it weighed. Towards the latter end of November there was an extraordinary flood, which overflowed the banks of the river Wye, and rose nearly to the height of five feet around the remainder of the stack of bark, and did it very considerable injury. There was suflBcient time for the defendant to have removed the whole of the bark before the flood happened. The defendant was seen examining the remainder of the bark after it had been injured by the flood, and the tarpaulin before mentioned remained *upon the bark until the 28th of January 1825, when it was re- r^on -i moved by some of the defendant's servants who were passing up L -I the river in a barge. , On the 4th day of December 1824, the plaintiff called at the defendant's counting-house, and the defendant said he was ready to pay for the bark which had been removed, viz., 8 tons 14 cwt., and by the plaintiff's direction an account was made out of the bark which the defendant had taken away as aforesaid, and the defendant paid the amount by a check, which was duly honoured. The plaintiff signed the account as settled, but at the same time said that no advantage should be taken of his so doing, and required the defendant to take and pay for the rest of the bark, which ho refused to do. Bark is an article which varies very considerably in weight according as the air is moist or dry, and according to the season of the year. The question at the trial was. Whether the plaintiff was entitled to recover in this action for the bark which remained standing at Eedbrook 7 According to the weight of the bark in July preceding, a quantity remained, which at the price men- tioned in the agreement of 23d of October 1824, amounted to the sum of £106, 5s. 8d., for which the verdict was taken. Oldnall Russell for the Plaintiff. — The property in the bark vested in the defendant as soon as the contract was made, and the subsequent delivery of a part was in law a delivery of the whole, Slubey v. Hay- ward, 2 H. Bl. 504 ; Hanimond v. Anderson, 1 N. R. 69. The case of Hanson v. Meyer, 6 East, 614, will be relied on to show that the pro- perty had not vested ; but there something remained to be done by the vendor; it was part of the contract, that the goods sold should be weighed before they were delivered. Upon the facts found in this case no act remained to be done by the vendor. The contract was for an absolute sale, the purchaser was to take the bark and pay for it on a day specified; and it was not made a condition that the bark should be previously weighed. The purchaser was at liberty to take the bark immediately, and in fact did take a part. Since the decision of Hanson V. Meyer, several cases somewhat similar have occurred, in which it was 28 KOSS ON COMMERCIAL LAW. held that goods contracted for had not vested in the purchaser, Rugg v. *Minett, llEast216; Wallace v. Breeds, 13 East 522 ; Austen L *" J V. Craven, 4 Taunt. 644 ; White v. Wilks, 5 Taunt. 176 ; Busk 'v. Davis, 2 M. & S. 397; Shipley v. Davis, 5 Taunt. 617; but in each of them it was made necessary, either by express contract or by the usage of trade, that some further act should be done by the vendor before the goods were transferred to the purchaser. [Baylet, J. — When did the delivery in this case take place ?] As soon as the vendee took away a part of the goods. In 2 Bl. Com. 448, it is said, " As soon as the bargain is struck thp property of the goods is transferred to the vendee, and that of the price to the vendor ; but the vendee cannot take the goods until he tenders the price agreed on." [Holroyd, J — The declaration is for goods sold and delivered, not for goods bargained and sold.] If the property vested in the defendant, then a delivery of part was clearly a delivery of the whole. Campbell, contra. — This action for goods sold and delivered cannot be maintained unless the plaintiff makes out not only that the property in the whole of the bark vested in the defendant, but also that the whole was delivered. He must show that he had divested himself of all lien upon the bark, and that the defendant might have maintained trover for it, without paying or offering to pay the price, Goodhall v. Skelton, 2 H. Bl. 316. This case is directly within the authority of Hanson v. Meyer, the bark was sold at a certain sum per ton, it was therefore necessary to weigh it in order to ascertain the price. Weigh- i^ng, then, was made necessary by the contract, and it was an act to be done by the vendor. If weighing was to precede the delivery, the bark, until weighed, remained in the possession of the vendor, and the vendee could have no right to weigh it, but was bound to call upon the vendor to do it. The authority of Hanson v. Meyer has never been called in question, it is therefore sufficient for the decision of this case ; it proves that the property never vested in the defendant, and if it had vested still there was no delivery. Bayley, J — Two questions are involved in this case : first. Whether r *41 1 ^^^ property in the bark was vested in the defendant *so as to L J throw all risks upon him ? secondly, Whether there had been such a delivery of the bark as would support this form of action ? It is not, perhaps, necessary to give any opinion upon the first point, but I think it right to do so, as it is most satisfactory to determine the case upon the main ground taken in argument. I think that the property did not vest in the defendant so as to make him liable to bear the loss which has occurred. Generally speaking, where a bargain is made for the purchase of goods, and nothing is said about payment or delivery, the property passes immediately, so as to oast upon the purchaser all future risk, if nothing further remains to be done to the goods ; altliough he cannot take them away without paying the price. If anything remains to be done on the part of the seller, until that is done the property is not changed. In Rugg v. Minett, and Wallace v. Breeds, the thing which remained to be done was to vary the nature or quantity of the commodity before delivery ; that was to be done by the seller. CONTRACTOFSALE. 29 • la other cases the thing sold was to be separated from a larger quantity of the same commodity. This case was different ; the subject-matter ol' the sale was clearly ascertained. The defendant agreed to buy the bark stacked at Kedbrook, meaning, of course, all the bark stacked there ; but it was to be paid for at a certain price per ton. The bargain does not specify the mode in which the weight was to be ascertained, but it was necessary that it should be ascertained before the price could be calculated, and the concurrence of the seller in the act of weighing was necessary. He might insist upon keeping possession until the bark had been weighed. If he was anxious to get rid of the liability to accidental loss, he might give notice to the buyer that he should at a certain time weigh the bark, but until that act was done it remained at his risk. In Hanson v. Meyer weighing was the only thing that remained to be done, there was not ^ny express stipulation in the contract thai the starch (the subject-matter of that contract) should be weighed ; that was introduced in the delivery order, but the nature of the contract made it necessary. So here the contract made weighing necessary, for without that, the price could not be ascertained. Suppose the plaintiff had declared specially upon this contract, he must have alleged and proved •that he sold the bark at a certain sum per ton, that it weighed ^ ^^ .„ -, so many tons, and that the price in the whole amounted to such L J a certain sum. The case of Hanson v. Meyer differs from this in one particular, viz., that the assignees of the vendee who had become bankrupt were seeking to recover the goods sold ; but the language of Lord Ellenborough as to the necessity of weighing in order to ascertain the price before the property could be changed, is applicable to the pre- sent case, and decides it. I therefore think that the bark which remained unweighed at the time of the loss was at the risk of the seller ; and even if the property had vested in the defendant, I should have thought that it had not been delivered, and consequently that the price could not be recovered on a count for goods sold and delivered. HoLROYD, J I also think that the plaintiff cannot recover. By a .contract for the sale of specific goods, it is true, as a general position, that the property is changed, although the seller has a lien for the price, unless the contract, is for a sale upon credit ; then the goods remain at the risk of the buyer. But Hanson v. Meyer is a direct authority, that in suon cases as the present the seller does not part with the goods until the weighing has been accomplished. Secondly, I think that the bark was not delivered. If there was a delivery the seller could have no lien for the price, even if the contract did not make the bark deli- verable "until the 30th of November; there was neither a performance of the weighing nor an offer to perform it. LiTTLEDALE, J. — I entertain some doubt whether the property did not pass by this contract ; and that doubt, as it seems to me, is not inconsistent with the decision in Hanson v. Meyer. The question there was. Whether the assignees of the purchaser had a right to call for a delivery of the goods sold ? Lord Ellenborough said, payment of the price and the weighing of the goods necessarily preceded the absolute vesting of the property ; which expression I take to have been used January, 1855. — 3 30 EOSSON COMMERCIAL LAW. with reference to the then question, viz., whether the property had so vested in the purchaser as to entitle his assignees to claim the delivery. *So in this case, although the property might vest in the t **^ ^ purchaser, it would not follow that he could enforce a delivery until the weight of the bark had been ascertained, and the price paid. Here there was not a delivery in fact, nor was the delivery of part a constructive delivery of the whole. This differs from the cases of lien or stoppage in transitu, in which it may be coAsidered, that a delivery of part is in the nature of a waiver of the lien, or right to stop in transitu. I think further, that an action for goods bargained and sold would not lie merely because -the property passed. The mere bargain would not suffice, because no specific price was fixed, nor could the plaintiff recover on a quantum valebat ; for the contract was to pay by weight; and, therefore, until the commodity was weighed, there would be nothing to guide the jury in the amount of damages to be given. The seller was at all events bound to offer to weigh the bark, but he never did so. For these reasons I think he cannot recover. Postea to the defendant. 1. In the case of Wallace v. Breeds, 13 East, 522, a sale-note for the purchase of 50 tons of Greeijland oil was delivered by the sellers' broker to the purchasers, to be paid for by their acceptance, payable at a future day, and they afterwards recei'ii'ed from the sellers an order oh their wharfingers for the delivery of 50 out of 90 tons of oil belonging to them. It was proved that before Greenland oil was delivered, it was the constant custom to have the cask searched by a cooper employed by the seller, and it was also the custom for the broker, on behalf both of the buyer and seller, to attend to ascertain the foot-dirt and water in each cask, for which allowance was to be made, and that the casks were then filled up by the sellers' cooper at the sellers' expense, and delivered in a complete state, containing the quantity sold. None of these things having been done, it was held that the sale was not complete to pass the property, and that the sellers, on the insolvency of the purchasers, might countermand the order for delivery. 2. Lord BUenborough observed, — "The difference between this case and that r*441 °^ Whitehouse v. Frost is, that there nothing *remains to be done by the L J seller in order to complete the sale as between him and the buyer : but here it is expressly found that some things did remain to be done by the seller which were to precede the delivery to the buyer : the casks were to be searched by a cooper employed by the seller, and after the foot-dirt and water in ^ch cask were ascertained by the broker attending on behalf of both parties, tne casks were to be filled up by the seller's cooper at his expense, and delivered in a com- plete state, containing the quantity sold. These were material acts to be done by the seller before the delivery to the buyer ; and the courts have frequently laid hold of circumstances like these to retain the property in favour of the unpaid seller f and before the oil was measured out and these things were done, the deli- very was countermanded." 3. The case of Zagury v. Furnell, 2 Camp. 240, was an action of special assump- sit for not accepting bills of exchange for the price of certain goat-skins sold by the plaintiff to the defendants, to be paid for by good bills j together with counts for goods bargained and sold, and goods sold and delivered. The bought nste was in the following form :— « Bought of Mr. S. Zagury of Great Prescott Street, 289 bales of goat-skins from Mogadore, per Commerce, Capt. John Horswell con- taining five dozen in each bale, at the rate of ^1s. Qd. per dozen, to be taken as they now lay with all faults, paid for by good bills at 5 months. London, 2'nh April, 1809. 14 Days prompt." It appeared that by the usage of trade it is the .duty of the seller of goat-skins by bales in this manner, to count them over, that CONTRACT OF SALE. 31 it may be seen whether each bale contains the number specified in the contract, and that on the 14th of May, before any of the skins in question had been counted over, the whole were destroyed by fire at the wharf where they lay at the time of the sale. It was contended for the Dbfendakt, on the authority of Hanson t. Meyer, 6 East, 614, and Hinde r. Whitehouse, 1 East, 558, that the action could not be maintained. Something remained to be done by the vendor to ascertain the amount of the price. Till the enumeration took place, it was impossible to say for what sum the bills should be drawn. The plaintiff had not shown, and could not show, that he had a right to draw the bills which the defendant refused to accept. Till the skins were counted, therefore, they remained at the risk of the seller, and he must submit to the loss. On the part of the Plaintiff, it was argued that the loss must fall upon the person whose property the goods were ; and there could be no doubt that from the moment the contract was signed, the property of the goods vested in the purchaser. As to the number of the skins, probable evidence must be sufficient in this as in other oases. It would be for the jury to say, *whether they believed that there were five dozen, or what r^-K-, smaller number, in each bale. '- J 4. Lord Bllenborough was of opinion, that as the enumeration of the skins was necessary to ascertain the price, this was an act for the benefit of the seller; and as this act remained to be done by him when the fire happened, there was not a complete transfer to the purchaser, and the skins continued at the seller's rislj. The number of skins actually contained in the 289 bales being uncertain, the plaintiff had failed to show that he was authorized by the terms of the contract to draw the bills which the defendants had refused to accept. The plaintiff after- wards brought an action on the same contract in the Court of C. P., which was tried at the sittings after last Hilary Term. Sir J. Mansfield, C. J., likewise directed a nonsuit, being of opinion that it was necessary to show the number of the skins ; and that, without this evidence, the plaintiff could not recover on the general counts for goods bargained and sold, any more than on the special counts ioT not accepting the bills of exchange. 5. In the case of Dixon v. Yates, 5 B. & Ad. 340, Mr. Justice Park observed, — " I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without delivery. The general doctrine that the property in chattels passes by a contract of sale to a vendee without delivery, is questioned in Bailey v. Culverwell, 2 Mann. & Ry. 566, in. a note by the reporters ; but I apprehend the rule is correct as confihed to a bargain for a specific chattel. Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained ; but where, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the ven- dee to take the specific chattel, and to pay the price, is equivalent to his accept- ing possession. The effect of the contract, therefore, is to vest the property in the bargainee." 6. The case of Logan v. Le Mesurier, 6 Moore's P.O. Cases, 116, was an action by a purchaser to recover the price of a raft of red pine timber, sold by written contract, and which was wrecked and dispersed at Quebec. By the contract, dated the 3rd of December, 1834, the timber was stated " to consist of 1391 pieces, measuring 50,000 feet more or less," and it was " deliverable at Quebec sn or before the 15th Juno following, and payable by the purchasers' promissory note, at 90 days' date from the date of the contract, at the rate of 9Jrf. per *foot r^t .(,•, measured off." The contract further stated, "should the quantity turn out L * J' more than above stated, the surplus to be paid for by the purchasers at 9Jrf. per foot, and should it fall short, the difference to be refunded to the sellers." On the 5th of December the purchasers' promi^ory notes for the sum of £19'?9, 3s. 4d., at 90 days' date, were delivered to the sellers in terms of the contract. On the 19th of June the raft arrived at Quebec, but in the course of the following night, before it could be received within the Booms, it was broken up and dis- persed by a violent storm, and the greater part of the timber was wholly lost. The Court of Queen's Bench at Montreal gave judgment in favour of the seller, but the Court of Appeals for Lower Canada reversed this judgment, on the ground that " upon the sale of goods by admeasurement which may happen to be 32 ROSSONOOMMEROIALLAW. destroyed before measurement, the loss is cast upon the seller, that the stipulation of admeasurement and of delivery at a particular place rendered the sale condi- tional and incomplete until the occurrence of those events, and that in the mean- time the risk periculum rei venditor is not to be borne by the purchasers." 7. The seller appealed to her Majesty, in Council, and contended that the con- tract of sale was absolute and not conditional, that nothing farther was requisite to be done by them, and that therefore any loss which might occur subsequently was at the risk of the purchasers. The purchaser maintained that the sale was a sale by admeasurement, and that consequently the risk of the loss by casus for- tuitus or vis major, remained with the seller until either admeasurement had taken place, or the purchaser was in fault. Lord Brougham observed, — " We have here, not an agreement to sell, but a contract of sale, with certain terms adjected ; and the main question is, whether or not that contract was completed, and passed the property to the buyer, before the accident happened which partially destroyed the subject-matter of the contract. Now, to constitute a sale which shall immedi- ately pass the property, it is necessary that the thing sold should be certain, should be ascertained in the first instance, and that there should be a price, either ascer- tained or ascertainable. But the parties may buy or sell a given thing, nothing remaining to be done for ascertaining the specific thing itself but the price to be afterwards ascertained in the manner fixed by the contract of sale, or upon a quantum valeat; or, they may agree that the sale shall be complete, and the pro- perty pass in the specific thing, chattel, or other goods, although the delivery of. possession is postponed, and although something shall remain to be done by the seller before the delivery ; or they may agree, that nothing remains to be done for ascertaining the thing sold ; yet, that the sale shall not be complete, and the pro- [*i1'\ P®'''y shall not pass, before something *is done to ascertain the amount of •- J. the price. The question must always be, what was the intention of the parties in this respect; and that is, of course, to be collected from the terms Of the contract. If those terms do not show an intention of immediately passing the property until something is done by the seller, before delivery of possession, then the sale cannot be deemed perfected, and the property does not pass until that thing is done. It is unnecessary to go through the cases relating to these positions. None of them will be found at all to impugn them. Indeed taken together, they clearly support it, as does the old French, and the civil* law. In applying this doctrine to the contract before us, there may be some doubt raised by the peculiarity of the terms, inasmuch as, on the one hand, a certain chattel is sold, and a price fixed in reference to an assumed measurement, the statement of which is parcel of the contract, and the price is to be paid immediately, with a reserved right for the one party to recover part of that price, and for the other party to receive more, in case that assumption shall prove to have been incorrect; while, on the other hand, the seller is to retain possession, to carry the chattel to a certain place, there to deliver it at a certain time, and to make the measure- ment before the delivery. But, taking the whole of these terms together, it ap- pears to us, that, until the measurement and delivery was made, the sale was not complete, there being nothing in the terms to show an intention that the property should pass before the measurement ; but, on the contrary, the intention rather appeanng to be, that the transfer should be postponed until the measurement at the dehvery. The timber is fully specified by the description,.and the place where U lay ; It is further said to be the property of Durrell, but under the control of the sellers. Durrell's statement of the quantity is given, that it measured ' 50,000 feet more or less;' it is to be delivered on or before a certain day, the 15th of June, at Farlin s Boom Quebec, and the payment to be'made, by a promissory note im- mediately, IS to be at the rate of 9Jrf. per foot, measured off, that is, when mea- sured off; and, as the seller is to carry and to deliver it at Quebec, he is the party to measure it there, at or before the delivery. Then, should the quantity be ^?°f ^',7 u^° ■"^^'^"'■e'J. to exceed the estimate, an additional sum is to be given ; It It fall short, a part of the sum paid is to be returned. Taking the whole of the terms together, it appears to us, that the first part of the contract, selling an ascertained chattel for an ascertainable sum, (and which, if it stood alone, would pass the property,) actually paid upon an hypothesis or estimate, is controlled bv the subsequent part of the contract providing for the possession, carriage, mea- surement, and delivery, all by the seller, with the re-adjustment of the price by [HS] re-payment or increase *of the sum paid upon estimate, in the event of the I J estimate proving erroneous, and that so the property did not pass before CONTRACT OF SALE. 33 the measurement and delivery at Quebec. If, again, it be said that the measurement was not to be made by the seller, but in the manner alleged by the appellants, this can make no difference in the result of the agreement, because in what way soever, and by whatsoever mode, the measurement was to be after the delivery at Quebec. Instead of a sale, then, which the first part of the contract would im- port, if standing alone, it is only a contract to deliver at a certain place and time, and the property did not pass before that delivery."— 6 Moore's P. 0. Cases, p. ALTHOUGH A CONTRACT OF SALE PASSKS THE PROPERTY IN THE SUB- JECTS SOLD TO THE PURCHASER, THE SELLER IS ENTITLED TO RETAIN POSSESSION OP THE SUBJECT UNTIL PAYMENT OF THE PRICE, UNLESS CREDIT HAS BEEN GIVEN TO THE PURCHASER J BUT THIS RIGHT OF RETENTION IS LOST SO SOON AS THE SELLER RELINQUISHES POSSES- SION OF THE SUBJECT. I. — BLOXHAM V. SANDERS. Michaelmas Term, 1825.— B. 4 B. & C. 941. Bng. Com. Law. Reps., vol. 10. Trover to recover the value of a quantity of hops from the defend- ants. At the trial before Abbot, C. J., at the London sittings, after last Trinity term, the jury found a verdict for the plaintiffs, damages jS3000, subject to the opinion of this Court upon the following case : — The plaintifiFs were assignees of J. E. Saxby, a bankrupt under a commission of bankrupt duly issued against him on the 5th January, 1824. fThe act of bankruptcy was committed on the 1st November, 1823, the bankrupt having on that day surrendered himself to prison, where he lay more than two months. The defendants were hop factors and merchants in the burgh of Southwark. Previous to his bankruptcy the bankrupt had been a dealer in hops, and on the 7th, 16th, and 23d of August, purchased from the defendants the hops (among others) for which this action was brought. ^ Bought notes were delivered in the following form : — " Mr. John Robert Saxby, of Sanders, Parkes, and Co. T. M. Simmons, eight pockets at 155s. *8th August, (-*4.qn 1823." Part of the hops were weighed, and an account of the L J weights was delivered to Saxby by the defendants, i The samples were given to the bankrupt, and bills of parcels were also delivered to him ip which he was made debtor for six diflferent parcels of hops, the amount of which was £739. The usual time of payment in the trade was the second Saturday subsequent to a purchase. Part of the hops belonged to the defend- ants, and part they sold as factors, but they sold all in their own names, it being the custom in the hop trade to do so. It was proved that the bankrupt had said more than once that the hops were to remain in the defendants' hands till paid for, and that he said so when he was about buying one of the parcels of hops for which the aption was broiight. The bankrupt did not pay for the hops, and on the 6th September 1823 the defendants wrote to the bankrupt, and desired him to " take notice, that unless he paid for the hops they had sold him, on or before Tnes- Si ROSS ON OOMMEEOIAL LAW. day then next, the defendants would proceed to resell them, holding him accountable for any loss which might arise in consequence thereof." Before the bankruptcy the defendants did not sell any parcel of hops without the bankrupt's express assent. After the notice already stated the defendants sold some parcels of the hops, but in one instance the bankrupt refused to allow the defendants to sell a parcel of hops to a person named by ihem at the price offered, and that parcel was accord- ingly sold by the defendants, before Saxby's. bankruptcy, to another per- son, by Saxby's authority. On. another occasion, in the month of Sep- tember, the bankrupt had employed a broker to sell another parcel of the hops, but the defendants refused to deliver them without being paid for them. After the act of bankruptcy the defendants sold hops of the bankrupt's to the amount of £380, 19s. 6d. The defendants delivered account sales of the hops so sold by them after the bankruptcy. The hops were stated to be sold for Saxby, and he was charged warehouse rent from the 30th of August, and also commission on the sales. Be- sides the hops purchased from the defendants, the bankrupt placed in their warehouse nineteen pockets of hops for sale by them (as factors), of which fifteen pockets were sold on and after the 13th of January r *50 1 *^^^^' °^ ^^^ ■'^^^"^ °^ ^'^'^' ^^^- ^'^■> ^°^ °^ which four re- L J mained in their warehouse at the time of the trial, which four were of the value of £14:, and there were also unsold of the hops pur- chased from defendants seven bags, fifty-six pockets, of the value of j£251, 13s. Qd. There was a demand by plaintiffs for these hops, and a tender of warehouse rent and charges, and a refusal on the part of the defendants to deliver them, before action brought. The jury fdhnd that the defendants did not rescind the sales made by them to the bankrupt. This case was argued at the sittings before last term, by Evans, for the Plaintiffs. — The assignees are entitled to recover the full value of all the hops. As to the nineteen pockets which were the property of the bankrupt, and which the defendants held as factors, there is no pretence for saying that the assignees are not entitled to recover the full value of them. As to the remainder, they were sold by the de- fendants to the bankrupt upon credit, to be paid for according to the usage of the trade, on the second Saturday after the sale. The property in the goods vested by the sale immediately in the bankrupt. In Comytfs Digest, tit. Agreement, B. 3, it is laid down, "If a man agree for goods at such a price, the bargain shall be void if the money be not paid immediately. For in every bargain payment ought to be made upon the delivery of the goods, except where a future day is agreed upon for the payment."^ And '< If a sale be of goods for such a price, and a day of payment limited, the contract will be good, and the pro- perty altered by the sale, though the money be not paid." Dyer 30 a, and other authorities, are cited. Rugg v. Minett, 11 East, 210, and Hanson v. Meyer, 6 East, 614, are authorities to the same effect. The hops remained in the defendant's warehouse, but the bankrupt was charged warehouse rent from the 30th of August. From that time therefore, the hops must be considered as much in his possession as if he had removed them to his own premises, Hurry v. Mangles, 1 Campb. OONTKAOTOFSAIiE. 35 452 ; Harinan v. Anderson, 2 Cambp. 243. Then looking «t the writ- ten contract only, the plaintiffs having the right of property and the right of possession at the timc-of the sale by the defendants, are entitled to recover in trover the full value of the goods 'sold. But it r^Ki ■^ will be said, that although the contract, on the face -of it, pur- >- -I ports that the hops are to be delivered immediately, the parol evidence was admissible to show that they were not to be delivered until paid for. That would have the effect.of varying the written contract, and there- fore was not admissible. [Batley, J. — There is nothing on the face of the oontraot to show that the hops were sold on credit.] It was the general usage of the trade, and might therefore be proved by parol, although not expressed in the written contract, Charleton v. Cotesworth, 1 Eyan & M. 175; Uhde v. Walters, 3 Camp, 16; Gabay v. Lloyd, 3 B. & C. 793 ; Palmer v. Blackburn, 1 Bing. 61 ; Meres v. Ansell, 3 Wils. 275; Hughes v. Stathem, 4 B. & C. 187. [Bayley, J.— If parol evidence of the usage was admissible, why were not the declara- tions of the bankrupt admissible to show that the hops were not to be taken away until paid for ?] The rule as to giving parol evidence as to the usage of trade does not apply to that, but assuming that the defend- ant once had a lien, it arose by special agreement, and was destroyed by the sale ; he is therefore liable to account to the assignees. Parry v. Dawson, 3 Aifstr. 710; Sweet v. Pym, 1 East, 4. [Littledalb, J. — In Langfort v. Tiler, 1 Salk. 113, Holt, C. J., says, " that after ear- nest given the vendor cannot sell the goods to another without a default in the vendee ; and therefore if the vendee does not come and pay and take th» goods, the vendor ought to go and request him ; and then if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person,"] Here the jury have found that the contract was not re- scinded, the defendants therefore had at most but a strict lien ; and hav- ing wrongfully sold the goods, they are liable to pay the full value in this action, and must treat the price as a debt due from the bankrupt. [This point was elaborately argued, but the Court pronounced no opinion upon it. M'Combie v. Davis, 7 East, 7; Solly v. Rathbone, 2 M. & S. 298 ; and Graham v. Dyster, 6 M. & S. 1, were cited.] Abraham, contra. — It must be admitted that the plaintifife are enti- tled to recover the value of the nineteen pockets of hops *whioh'j- ji,-,,-. the defendants had in their possession as factors. As to the L ■"J others, the vendee having become insolvent, the vendors were entitled to stop them before they got into the actual possession of the vendee, and the latter had no right to the possession until he paid the price. Secondly, parol evidence was admissible to show that the goods were not to be delivered until the price was paid, inasmuch as it did not contra- dict the written agreement, but was merely an answer to that which was sought to be added to it by parol, Wiglesworth v. DaUison, Doug. 201 ; Senior v. Armitage, Holt's N. P. C. 197. At all events the plain- tiffs not having paid the price, can recover only nominal damages. Citr. adv. vult. Bayley, J., now delivered the judgment of the Court — This was 36 BoSSONCOMMKRCIAIiLAW. an action oft trover for certain quantities of hops sold by the defendants to Saxby before his bankruptcy, and for certain other hops which baxby had placed in defendants' warehouses, that defendants in their character of factors might sell tEem for his use, and the question as to this latter parcel stands upon perfectly distinct grounds from the question as to the others. This parcel consisted of nineteen pockets; defendants sold none of them until after Saxby's bankruptcy, and then they sold fifteen pockets, not for the use of the assignees, but to apply the proceeds, not for any debt due to them in their character of factors, but to discharge a claim they considered themselves as having upon Saxby in regatd to the other hops ; and the other four pockets they refused to deliver to the assignees. It was candidly admitted upon the argument, and yiras clear beyond all doubt, that the defendants were not warranted in ap- plying the proceeds of the fifteen pockets to the purpose to which they attempted to apply them, and that they had no legal ground for withholding the four pockets ; and, therefore, to the extent ^ of these nineteen pockets, the value of which is £91, 19s. bd., we think it clear that the plaintiffs, are entitled to recover. The other quantities were hops Saxby had bargained to buy of the defendants on different days in August 1823, and for which the defendants had delivered bought notes to Saxby. The bought notes were in this form : — « Mr. J. K. P^^o-, *Saxby, of Sanders, Parkes & Co., T. M. Simmonds, eight L -I pockets at 155s. 8th August, 1823." Part of the hops were weighed, and an account delivered to Saxby of the weights, and samples were, given to Saxby, and invoices delivered. The bought notes were silent as to the time for delivering the hops, and also as to the time for paying for them, but the usual time for paying for hops was proved to' be the second Saturday after the purchase. It was also proved that Saxby had said that the hops were to remain with the defendants till they were paid forj but as the admissibility of such evidence was ques- tioned, and. in our view of the ease it is unnecessary to decide that point, I only mention it to dismiss it. (The learned Judge then stated the other facts set out in the special case, and then proceeded as follows.) Under these circumstances the question is. Whether in respect of these hops the plaintiffs are entitled to recover ? It was urged, on the part of the plaintiffs, that the sale of these hops vested the property in them in Saxby ; that the hops were to be considered as sold upon credit, and that defendants had no lien therefore upon any of them for the price ; that if they ever had any lien, it was destroyed as to those they sold by the act of sale, and that the plaintiffs were entitled to recover the. full value of what were sold, without making any deduction for the price which was unpaid. It is, therefore, material to consider whether the property vested in Saxby to any and to what extent ; and what were the respective rights of Saxby and of the defendants. Where goods are sold and nothing is said as to the time of the delivery, or the time of pay- ment, and everything the seller has to do with them is complete the property vests in the buyer, so as to subject him to the risk of any ac- cident which may happen to the goods, and the seller is lisible to deliver them whenever they are demanded upon payment of the price ; but the OONTRAOTOFSALE. 37 buyer has no right to have possession of the goods till he pays the price. The vendor's right in respect of the price is not a mere lien which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion, and payment or a tender of the price is a con- dition precedent on the buyer's part, and until he makes such payment or tender he has no right to the possession. If goods are sold upon *credit, and nothing is agreed upon as to the time of delivering p ^r. -. the goods, the vendee is immediately entitled to the possession, L J and the right of possession and the right of property vest at once in him ; but his right of possession is not absolute, it is liable to be defeated if he becomes insolvent before he obtains possession. Tooke v. Holling- worth, 5 T. E. 215. Whether default in payment when the credit ex- pires will destroy his right of possession, if he has not before that time obtained actual possession, and put him in the game situation as if there had been no bargain for credit, it is not now necessary to inquire, be- cause this is a case of insolvency, and in case of insolvency the point seems to be perfectly clear, Hanson v. Meyer, 6 East, 614. If the sel- ler has despa;tched the goods to the buyer, and insolvency occurs, he has a right in virtue of his original ownership to stop them in transitu, Mason v. Liokbarrow, 1 H. Bl. 357; Ellis v. Hunt, 3 T. R. 464 ; Hodgson V. Loy, 7 T. R. 440 ; Inglis and others v. Usherwood, 1 East, 515 J Bohtlingk v. Inglis, 3 East, 381. Why ? Because the property is vested in the buyer, so as to subject him to the risk of any accident; but he has not an indefeasible right to the possession, and his insolvency, without payment of the price, defeats that right. And if this be the case after he has despatched the goods, and whilst they are in transitu, a fortiori, is it when he has never parted with the goods, and when no transitus has begun. The buyer, or those who stand in his place, may still obtain the right of possession if they will pay or tender the price, or they may still act upon their right of property if anything unwarrant- able is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury; but they can maintain no action in which right of pro- perty and right of possession are both requisite, unless they have both those rights, Gordon v. Harper, 7 T. R. 9. Trover is an action of that description, it requires right of property and right of possession to sup- port it. And this is an answer to the / argument upon the charge of warehouse rent, and the non-rescinding of the sale. If the defendants were forced to keep the hops in their warehouse longer than Saxby had a right to require them, they were entitled to *charge him with ^ ^^^ -. that expense, but that charge gave him no better right of pos- L J session than he would have had if that charge had not been made. In- deed, that charge was not made until after the bankruptcy, and until the defendants insisted that the right of possession was transferred to their second vendee. Then as to the non-rescinding o'f the sale, what can be its effect ? It is nothing more than insisting that the defendants will not release Saxby from the obligation of his purchase, but it will give him no right beyond the right his purchase gave, and that is a right, to 38 ROSS ON COMMERCIAL LAW. have the possession on payment of the price. As that price has not been paid or tendered, we are of opinion that this action, which is not an action for special damage by a wrongful sale, but an action of trover, cannot, as to those hops', be maintained. The verdict must therefore be for the plaintiffs for the sum of ^691, 19s. bd. only. Judgment for the plaintifis. II. — DIXON V. YATES. June 7, 1833.— E. 5 B. & Ad. 313. Eng. Com. Law Reps., vol. 2 T. This was a feigned issue under the interpleader Act, 1 & 2 W. IV. c. 58, to try whether the property in, or the right of possession of, forty- four puncheons of rum, then being in a certain warehouse of the defen- dant Yates, or any part thereof was in the plaintiffs on the 18th of November, 1831, when they demanded the same of Yates, and he re- fused to deliver the same or any part thereof to the plaintiffs. At the trial before Patteson, J., at the Lancaster Spring Assizes, 1832, a ver- dict was found for the plaintiffs, subject to the opinion of this Court on the following case : and it was agreed that the Court should be at liberty to draw from the facts therein stated any inference that the jury might have drawn. On the 28th of June, 1831, the plaintiffs, spirit merchants at. Liver- pool, bought of the defendant Yates, 147 puncheons, 10 hogsheads, 2 barrels of rum, which had been bonded by Yates in his own name, and r *'^(\ 1 P^*"^"^ ''y ^™ '^^ ^^^ ^'^^ bonded vaults, *in Atherton street, >- J Liverpool. At the time of this purchase Yates handed an in- voice to the plaintiffs, specifying the marks and numbers of each pun- cheon or cask, and the name of the vessel which imported it ; and at the bottom was written, — " Warehoused per J. B. Yates & Co., in Yates's, Atherton street." The price, £1812, was paid by the plaintiffs to Yates, in August and September. On the same 28th of June on which this purchase was made, the plaintiffs re-sold a part, viz., 35 puncheons, to Collard, who was clerk to Yates, and also carried on business on his own account, as a spirit merchant, with the knowledge of his employer. For the price of this parcel of 85 puncheons, Collard accepted two bills for £240 each ; and after the sale, the plaintiffs gave Collard delivery orders on Yates for the whole 35 puncheons. The invariable mode of delivering goods in warehouses at Liverpool, is by handing delivery or- ders. Yates kept no transfer books. On the 5th of October, 1831, one of the bills given in payment for the parcel of 35 puncheons was dis- , honoured, and was taken up by the plaintiffs. Up to that time Collard had been in good credit with the plaintiffs. When the other bill was nearly at maturity, the plaintiffs, on the 29th of October, 1831, to save their own and Collard's credit, advanced money to take it up. Both bills were in the hands of Moss and Co., the plaintiffs' bankers. On the 13th of August, 1831, the plaintiffs bought of the defendant Yates another parcel, consisting of 51 puncheons of rum, which had been CONTRACT OF SALE. 39 imported frdm Jamaica in the ship Alecto, and which were bonded by him in his own name, and placed in his own bonded vaults, in Atherton street. Yates gave an invoice as follows : — " Liverpool, 13th of August, 1831, Messrs. W. Dixon, Jan., & Co., bought from J. B. Yates & Co., 51 puncheons Jamaica rum. Payment two months and two months." The numbers and marks of the casks were then inserted, and at the bot- tom there was a memorandum, "Warehoused per J. B. Yates &• Co., 29th of July, 1831, in Atherton street." The price of this lot, £624, 6s. Id., was paid by the plaintiffs on the 5th of November, 1831. On the same day on which this latter purchase was made by the plaintiffs, viz., 13th of August, 1831, they sold to Collard 46 puncheons : viz., 10 pun- cheons of the parcel first above mentioned, of 147 *puncheons, ^ ,,- ^ 10 hogsheads, and 2 barrels; and 36 of the.51 puncheons last L -1 mentioned ; and they delivered to him an invoice specifying the marks and numbers of each puncheon. For the price, £589, 6s. 2fZ., Collard accepted two bills drawn upon him by the plaintiffs, dated the 13th of August, 1831, payable respectively at three and four months, at Barclay, Trittons & Co., in London. One of these bills the plaintiffs paid away; the other they paid to their bankers as cash. After the last-mentioned purchase by Collard from the plaintiffs, he applied to them for delivery orders on Yates, which they refused to give ; but said that, if he wanted one or two puncheons, they would let him have them. Collard addressed to the plaintiffs two orders in the follow- ing form : — " Messrs. W. Dixon & Co., please to deliver one puncheon of rum, J. B; 7, J. F. 83, bought 13th of August 1831. A. W. Collard." The plaintiffs gave corresponding orders upon Yates, and the two pun- cheons were delivered to a purchaser from Collard. These two puncheons were part of the 46 sold to Collard on the 13th of August, and the de- livery order for the two puncheons was produced from the possession of CoUard's assignees. At the trial the remaining 44 puncheons sold to Collard on the 13th of August were the subject-matter of the issue. On the 16th of November 1831, the first of the two bills accepted by Collard for the 46 puncheons became due in London, and was dishon- oured. It was returned to and taken up by the plaintiffs on the 19th of November; and the other bill was also dishonoured when at maturity, and taken up by the plaintiffs. Collard's insolvency was generally known at Liverpool about the 12th or 14th of November. On the 18th of November 1831, the plaintiffs gave notice to the de- fendant, Yates, not to deliver the rum to any person but themselves. On the 19 th they made a verbal demand, and on the 21st a written demand, of the rum, which Yates refused to deliver. The plaintiffs had had deal- ings with Yates often before, for some years back, and had bought of him large quantities of rum, which they left in his cellars y and when they effect- ed re-sales, they gave delivery orders to the purchasers, and Yates had not delivered any of such rums bought on former occasions by the plaintiffs without delivery orders *from them. Yates was not in the habit ^ ^-o -i of accepting general delivery orders; but when the plaintiffs L J bought of him goods lying in bond, they got orders accepted when they wanted them out. In the meantime, the plaintiffs looked after the casks, 40 ROSS ON COMMERCIAL LAW. sampled them, and coopered them, as ocoasion required. Tlie plaintiiFs did not get a delivery order accepted for either of the parcels bought by them on the 28th of June and the 13th of August 1831, but resold a part of each parcel to Collard on the day of the purchase ; to which re- sale the want of a delivery order was no impediment. The rums which the plaintiffs bought on the 28th of June and 18th of August were sampled on the quay when landed, and the samples taken to Yates's sale-room. The plaintiffs received the samples of those which they did not sell to Collard, but not of those which they did. Collard kept the remainder at Yateg's. It is the custom for purchasers of rum always to take the samples, and to cooper the casks. Collard, soon after the purchase, had the puncheons which he bought coopered in Yates's warehouse, and marked with the letter C. The plaintiffs never touched those puncheons, or sampled them, but left Collard to look after them until the 21st of November, when they had them sampled. On the 28th of October, after the negotiation of the~ bills given by Collard, and before they had arrived at maturity, Collard sold 26 pun- cheons, part of the 46 which he had bought of the plaintiffs on the 13th of August, to the defendant, Kaye, who, on the 31st of October, accepted bills for the price, which were duly honoured. Collard got those accept- ances from Kaye, between ten and twelve in the morning of the 81st of October. An invoice containing the marks and numbers of the casks, and stating where and by whom the rum was bonded, was made out and delivered by Collard to Kaye. On the 31st of October, the cooper employed by the defenda!it, Kaye, applied at the counting-house of Yates for permission to have the 26 pun- cheons coopered and gauged, on behalf of Kaye, and about nine o'clock of that morning, Yates's warehouseman accompanied the cooper to the warehouse of the defendant, Yates, when the cooper prepared the casks r *fiQ T ^"^ *^^ S^^S^^i ^^^ marked them J. A. K. On the same day the L J *gauger attended, and gauged the puncheons on behalf of Kaye ; and on that and on the following day the cooper coopered the casks on his behalf. The warehouseman of the defendant Yates was present nearly all the time of gauging and coopering the puncheons. If the cooper had met with any impediment at Yates's at nine o'clock that morning, there would have been time to inform Kaye before he had ac- cepted the bills of Collard. When the persons came from the defendant Kaye to gauge the rums, they were refused three times by a clerk of Yates ; then Collard came and had it done. The coopering and mark- ing were also done with CoUard's knowledge, and by his permission. On the 19th of November, Kaye presented to the plaintiffs, for their ac- ceptance, a delivery order for the 26 puncheons, bought by them of Collard, which the plaintiffs refused to accept. The remaining 18 puncheons were sold by Collard, on 7th of Septem- ber, to the defendants. Bond and Proctor, and he made out and delivered to them an invoice specifying the marks and numbers of the puncheons, and where and by whom the same was bonded. On the 9th of September, Bond and Proctor settled with Collard for these rums ; partly by cash, partly by brandies which had been bought before, partly by wines bought CONTRACT OF SALE. 41 tlien, and partly by a bill for £39, which was afterwards paid. The samples of these 18 puncheons, and which were part of the samples which GoUard kept at Yates's counting-house, were taken to Bond and Proctor, after the sale to them; out of this lot of 18 puncheons, Yates delivered three to the defendants, Bond and Proctor, with the assent of Collard, viz., one on the 15th of October, one on the 1st of November, and one on the 8th of November, upon separate delivery orders signed by Bond and Proctor, and without any delivery order from the plaintiffs. On the 19th of November, Bond and Proctor presented to the plaintiffs, for acceptance, a delivery order for the remainder of the rums sold to them by Collard, which the plaintiffs refused to accept. On the 21st of November, after the demand made on Yates by the plaintiffs, they, by his permission, sampled the 41 puncheons then re- maining in his warehouse, *In October 1 830, the plaintiffs bought a quantity of rum from j- ^„f. -. Yates at two and three months' credit, which they resold on the L J same day to Collard. Creiwell, for the Plaintiffs. — The plaintiffs bought the rum of Yates, paid for it, and were thereupon entitled to the possession. As between Yates and them, if no jus tertii can be set up, they are clearly entitled to recover. Yates was never authorized by the plaintiffs to de- liver the rum to any other person ; and the plaintiffs cannot be affected by that which was done between Collard and the other defendants. Collard bargained for the rum, and gave bills in payment : and it may be said, that as he purchased on credit, while the bills were running, he might have claimed to have possession. But first, there is evidence of a contract, or condition, that the plaintiffs should not part with the pos- session till the bills were paid. Collard asked for a general delivery order ; the plaintiffs refused to give it : they offered an order for one or two puncheons, and that order Collard accepted. There was, therefore, an assent on his part to the residue of the rum remaining in the plain- tiffs' hands, and he could not then confer a right on a third person. Secondly, as Collard did not, in fact, insist upon possession while the bills were running, the plaintiffs, after the bills were dishonoured, had a right to retain the rum; and Collard's right of possession was defeated by his subsequent insolvency : Bloxam v. Sanders, 4 B. & C. 941 ; Bloxam v. Morley, 4 B. & C. 951. For though the property in goods sold upon credit vests in the vendee, it is liable to be divested if the con- tract is not performed by the purchaser, Langfort v. Tiler, 1 Salk. 113, Anonymous, Dyer, 29 b. An attorney having a lien on papers, loses it by taking a bill for his demand, but if that is dishonoured, his lien re- vives, Stevenson v. Blakelock, 1 M. & S. 535; and where goods are in transitu, insolvency of the purchaser before delivery authorizes the con- signor to resume possession": Clay v. Harrison, 10 B. & C. 99. The acts of Collard in marking, gauging, and coopering, were not sufficient to deprive the plaintiffs of their lien ; for even although those acts might be considered as done with the plaintiffs' consent, they were not, as between the parties, sufficient *to constitute a delivery or taking j- ^„, -. possession. The custom as to delivery orders was well known to L J 42 ROSS ON COMMERCIAL LAW. Collard; and there is no case to show that the lien was determined by such act, unless they were intended by the parties to have such effect ; and here the vendors had no such intention. A consignor's right to stop in transitu is not taken away by the consignee's having partly paid for the goods, nor by his putting his initials on them, that not being done by way of taking possession, Hodyson v. Loy, 7 T. E. 440. Such mark- ing by a vendee does not amount to an acceptance within the statute of frauds, Baldey v. Parker, 2 B. & C. 37. And where goods were bonded in the vendor's name, partly in his own and partly in the warehouses of other persons, and he resold to A., who took samples out of the bulk and marked the casks with his initials, but he did not get any delivery order, nor give notice to the owners of the warehouses, it was held that ' the goods remained in the order and disposition of the vendor, who after- wards became bankrupt, and passed to hie assignees : Knowles v. Horse- fall, 5 B. & A. 134. It may be said that, by the delivery of part, the whole vested in Collard. But the answer to that is, that a delivery of part can only operate as a constructive delivery of the whole, when so intended. In Slubey v. Hayward, 2 H. Bl. 504, where the delivery of part was held to destroy the right of stopping the remainder in transitu, there appeared to be no intention, either previous to or at the time of delivery, to separate that part of the cargo from the rest. In Hinde v. Whitehouse, 7 East, 558, the samples were delivered as part of the things purchased, to make up the quantity. In Bloxam v. Sanders, 4 B. & C. 947, samples and invoices were delivered ; but it was held that there was no delivery of the article purchased; and in Cooper v. Elston, 7 T. E. 14, where a sample of wheat was delivered, but it was no part of the quantity sold, that was held to be no delivery to take the case out of the statute of frauds. So far as to Collard. Then the sub-vendees cannot be in a better situation. First, as to Kaye; on the 28th of October, he bought 26 puncheons of Collard, accepted bills on the 31st of October, and received an invoice, showing r *fi9 n where the rum was bonded, and by whom. ■*Kaye sent the L -I gauger and cooper to gauge and mark the casks, but Yates's clerk refused to let them do it ; Collard then came and had it done. A prudent purchaser would have inquired whose property it was : he would have learnt the circumstamces, and that there could be no valid transfer without a delivery order. Then as to Bond and Proctor. Collard sold the 18 puncheons on the 7th of September, and on the 9th they paid him for them, partly by cash and bills, partly by writing off an old debt. The samples were taken to their counting-house from Yates's, where they had previously been left. Bond "and Proctor presented delivery orders to the plaintiffs for acceptance. If the taking of the samples at first by Collard did not operate as a delivery to him, no more would the taking of them be a delivery to Bond and Proctor. They showed they had knowledge of the custom of trade by producing delivery orders. In Stoveld v. Hughes, 14 Bast, 308, there was an assent by Hhe first vendor to thfe sub-sale. In Chaplin v. Eogers, 1 East, 192, there was evidence of a CONTRACT O^F SALE. 43 delivery of the whole to the first vendee. In Hammond v. Anderson, 1 New K. 69, there was an order for delivery of the whole to the vendee. It may be said that the giving of an invoice to CoUard enabled him to go into the market and sell the goods ; but there was no act done by the plaintiffs which enabled CoUard to deceive a cautious purchaser. The custom of Liverpool was well known, and no delivery order was given. The invoices delivered by Collard to the sub-vendees stated where the goods were bonded, and in whose name ; and therefore they might inquire. It does not appear that the invoice held by Collard was ever seen by them. Wiglitman for Kaye Kaye is entitled to recover against Yates the 26 puncheons of which he was the purchaser. If Collard had the pro- perty in him at one time, Kaye now has it. The only difference, is that Collard, after having dishonoured his bills, would not have been able to enforce his claim against the plaintiffs ; but he, before the dishonour of the bills, having transferred the goods to Kaye, who paid for them, the right of property is in the latter. All acts of ownership were exercised by Collard and by Kaye ; Collard took samples, and he and Kaye "marked and coopered the casks. Collard's bills were imme- p ^„„ -. diately negotiated by the plaintiffs; they then became, and con- L > tinued at the time of the sale by Collard to Kaye, paid vendors, and had no lien ; Horncastle v. Farran, 3 B. & A. 497. It is true no deli- very order was given by the plaintiffs; but that is not usual until goods are wanted. The plaintiffs themselves had no delivery order, but they had paid : so had Kaye. If either party is to sustain a loss, it should be that person whose conduct, in giving credit to a-seoond party, has enabled the latter to sell to a third party, by whom he has been actually paid. Here the plaintiffs were in fault, by suffering Collard to appear to third persons as a vendor having title. The plaintiffs never exercised any acts of ownership : they never touched the property. PParke, J. — They touched it as much as if they had bought it from a third per- son, and had paid for it and delivered it to Yates as a warehouseman. He viras their agent ; the goods were ascertained, their right to them was ascer- tained ; they had put their marks upon the casks, and there was a valid con- tract as between them and Yates, by which the property vested in them. J There was an equally valid contract to pass the property as between the plaintiffs and Collard. The plaintiffs had not refused to give Collard any delivery order, they only said if Collard wanted one or two he should have them ; but they could not have absolutely refused to give him a general order while his bills were outstanding, without subjecting themselves to an action. Then Collard, having the property in the rums, sold 26 puncheons to Kaye. It is not found that the invoice held by Collard was ever shown to Kaye ; but the plaintiffs, by giving Collard such a document, might have misled purchasers, and were therefore in fault. It is said that Kaye ought to have inquired whether the rums had been actually delivered to Collard. If he had done so, Collard would have shown him the invoice, by which he would have appeared as the purchaser. Davis v. Reynolds, 4 Camp. 267 ; 1 Stark, 114, shows that a vendor who takes the vendee's acceptance in payment cannot stop the 44 KOSS ON COMMERCIAL LAW. goods in transitu. [Patteson, J.— Unless the bill has been dishon- oured.] If the original vendor give credit, by taking the vendee's acceptance in payment, he thereby gives the vendee a, jus disponendi. *Kaye is entitled as against Yates, because he, by OoUard, his L *°* J clerk and agent, allowed Kaye to put his marks on the casks, and thereby induced him to give Collard bills in payment. Collard, who is both the vendor and purchaser of these goods, has the manage- ment of Yates's cellar, and is permitted by him to appear as if he had the disposal of them. It is not, therefore, for Yates now to set up a jus tertii against a purchaser from Collard. He must take the conse- quences of CoUard's acts. [Parke, J. — Collard was the vendor, as between him and Kaye, and must be considered as a third party, uncon- nected with Yates. Patteson, J In Craven v. Ryder, 6 Taunt. 4.S3 ; 2 Marsh, 127, the goods were sold under a contract to deliver them free on board a vessel named by the buyer. The vendors delivered them on board such vessel, and took a receipt which purported that the goods sold were received on their (the vendor's) account. The vendee accepted bills for the amount, but, before they became due, stopped payment; and there, although the master of the vessel had exeputed a bill o| lading to a subsequent purchaser, it was held that the first vendors retained their property in the goods by keeping the receipt for them ; and that, so long as they kept the receipt in their own hands, there was not a complete delivery to the buyer.] In the present case it appeared that delivery notes were only taken as wanted. The goods remained in the hands of the warehouse-keeper as the agent of the purchaser; and the right of property passed to the subsequent vendees in the same manner as it did to the first. Roscoe for Bond and Proctor. — It cannot be disputed, that at the time of the sale by Collard to Bond and Proctor (which was before CoUard's insolvency) th^ right of property and possession had passed to Collard. The original vendor could not then have refused to deliver to a pur- chaser or a sub-purchaser. Then did CoUard's subsequent insolvency divest that right ? The plaintiffs' right, which revived on the non-pay- ment of the bills by Collard, was merely an equitable lien. It is similar in principle to the right of stopping in transitu, which is an equitable right only. This is laid down by Butler, J., in Lickbarrow v. .- ^gg Mason, 6 East, 27, note, and Ellis v. Hunt, *3 T. B,. 469 ; and L J by Lord Kenyon in Hodgson v. Loy, 7 T. R. 445 ; and Mr. Bell in his Commentaries on the Laws of Scotland, p. 209, where all the cases are collected, says that the right is founded entirely on equity. If the right of stopping iw Vawst^a be only an equitable lien, it is clear that it cannot be exercised by the plaintiffs (who enabled Collard to go into the market with an apparent title) against Bond and Proctor, who are purchasers for value, and without notice of any defect of title in the vendee. In Lempriere v. Pasley, 2 T. R. 490, Ashhurst, J., says, « As between a person who has an equitable lien, and a third person, who purchases the thing for a valuable consideration, and without notice, the prior equitable lien shall not overreach the title of the vendee." So in Snee v. Prescott, reported in 1 Atkyns, 245, but more accurately CONTRACT OF SALE. 45 stated in tbe judgment of Buller, J., in Liekbarrow v. Mason, 6 East, 28, note, Lord Hardwicke says, " where goods have been negotiated and sold again there it would be mischievous to say that the vendor or factor should have a lien upon the goods for the price ; for then no dealer would know when he purchased goods safely. In Kinloek v. Craig, 3 T. R. 787, Eyre, C. B., says, that " the right of stopping goods in transitu never occurs but as between the vendor and vendee ;" and Buller, J., in Liekbarrow v. Mason, 6 Bast, 31, note, considers the terms vendor and vendee, as used by Eyre, C. B., to apply to the persons who buy of and sell to each other. Bayley, J., in Hawes v. Watson, 2 B. & C. 542, speaking of the ordinary case of a vendor and vendee, says, " In such cases, justice requires that the vendee shall not have the goods unless he pays the price. If he cannot pay the price, the vendor ought to have his goods back; but if the question arises, not between the original vendor and the original vendee, but between the original vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods, what is the honesty and justice of the case ? Surely that the vendee, who has paid the price, shall be entitled to the possession of the goods." The present case must be governed in principle by Liekbarrow V. Mason, 2 T. R. 63 ; 1 H. Bl. 357 ; 6 East, 20, note, which was de- cided upon the ground, that the property was transferred by the indorse- ment of the bill of lading; *whioh, in fact, is no more than a r;^/.o-| declaration by the consignee, that the indorsee of the bill of L J landing is the owner of the goods. Now, an invoice is a declaration by the vendor that the purchaser is the owner of the goods, and it ought to have the same effect In Green v. Haythorne, 1 Stark. 447, there had been an invoice and samples given to the purchasers, who resold, and the vendors had delivered (as here) parcels of the goods to different sub- purchasers; and Lord Ellenborough says : — "I am of opinion that this was an executed contract. Here was a sale of 68 bags, which were delivered out by the vendors from time to time, according to the order of the vendees, who were furnished with an invoice and samples to enable them to go into the market." A new trial was moved for, and refused, on the ground that the vendors, who had received a delivery order from the sub-purchasers before the insolvency of the purchasers, should have repudiated it in order to retain their lien. Here, it appears, that the first bill given by Collard for the 35 puncheons, purchased by him from the plaintiffs on the 28th of June, was dishonoured on the 5th of October, and taken up by the plaintiffs ; on that day, therefore, they knew of his insolvency. Yet, subsequently, on the 15th of October, and the 1st and 7th of November, their agent, Yates, delivered three puncheons to the order of the defendants. Bond and Proctor. The plaintiffs cannot, after a recognition of Bond and Proctor's title, with notice of Collard's insolvency, turn round upon Bond and Proctor, and insist upon their lien. They should, at least, when the delivery order of Bond and Proctor was presented, on the loth of October, have in- formed them that Collard was insolvent, and that they insisted upon their lien. And the delivery of two puncheons to the order of Collard, and of three to the order of Bond and Proctor, was such a delivery of Januaet, 1855. — 4 46 ROSS ON COMMERCIAL LAW. part as amounted to a constructive delivery of the whole, and put an end to the right of the plaintiffs to retain the remainder : Slubey v. Hayward, 2 H. Bl. 504; Hammond v. Anderson, 1 New R. 69. It is true, that a part delivery, where some act remains to be done before the property in the whole can vest in the vendee, will not vest the whole in him ; and upon that ground it was decided, in Hanson v. Meyer, 6 East, 614, that P „„ ^ a part delivery of goods did not divest the right of the vendors *to L J stop the remainder in transitu. [Per Lord EUenborough, in Stoveld v. Hughes, 14 East, 313, and Littledale, J., in Simmons v. Swift, 5 B. & C. 864.] But "whenever there is a complete delivery of part of one entire cargo to the consignee, the transiius is ended, and the consignor cannot stop the remainder : per Bayley, J., in Crawshay v. Eades, 1 B. & C. 183. Supposing the plaintiffs, notwithstanding the sale by Collard to Bond and Proctor, would have had a right to stop the goods, that right has been divested. The right to stop in transitu is defeated, if the goods have come to the possession of the vendee : but where they are in the possession of an agent or warehouseman (even the vendor's) the lien may be defeated by circumstances which are evidence of delivery ; as the transfer of the goods in the warehouseman's books from the vendor's into the vendee's name, Harman v. Anderson, 2 Campb. 243 ; or the receipt of warehouse rent from the vendee. Hurry V. Mangles, 1 Campb. 452 ; or any act of ownership exercised upon the goods by him, such as the marking, or the packing or unpacking the goods by him ; Ellis v. Hunt, 3T. R. 464 ; Stoveld v. Hughes, 14 East, 313 ; Wright v. Lawes, 4 Esp. N. P. 0. 84. Here Yates became the agent or servant to Collard as soon as the latter marked and coopered the casks, and had samples. The fact of the plaintiffs having omitted to give a delivery order is immaterial, because their suffering Collard to deal with the property as his own is stronger than any delivery order. In Poster v. Frampton, 6 B. & C. 107, the purchaser went to the ware- house of the carrier and took away part of the goods, and desired that the rest might remain in the warehouse, and it was held that the trans- itus was thereby at an end. As to the question whether the plaintiffs by giving a receipt enabled Collard to commit a fraud, and so are pre- cluded from recovering; Bayley, J., in Hawes v. Wktson, 2 B. & C. 543, says, — " There are many cases in which it has been held that if the first vendor does anything which can be considered as sanctioning the sale by his vendee, that destroys all right of the former to stop in transitu." [Parke, J — Bond and Proctor took no possession.] Collard, their vendor, had taken such possession as divests the original vendor's right to stop. Craven v. Eyder, 6 Taunt. 343 ; 2 Marsh. 127; Holt, N. P. C. r*68 1 ^^^' ^^^^^^ *°° '''^'■y particular circumstances, and was decided L J on the ground that the person holding the lighterman's receipt had control over the goods till he had exchanged it for the bill of lading. Cowling, for Yates.— First, assuming that Yates is to be considered responsible for the acts of his clerk Collard, those acts were, under the circumstances, justifiable. But, secondly, Yates is not responsible for CoUard's acts, either to the plaintiffs or to his co-defendants, because those acts all passed among those parties behind the back of Yates. OONTRAOI OP SALE. 47 Everything was the act of CoUard ; Yates was in ignorance of all uatil the 18th of November. Even the delivery of the three puncheons was Collard's act. It is clear that the property in the goods was changed by the sale. The custom referred to is confined merely to the delivery of goods, and the want of the delivery order is no impediment to a resale. The first question will be, whether the plaintiffs ever transferred away the right of possession. If the rum had been in their own possession, they would, by their sale to Collard on credit, have passed away both their right of property and possession : Bloxam v. Sanders, 4 B. & C. 948, per Bayley, J., citing Tooke v. HoUingsworth, 5 T. K. 215. The case must be the same where the goods are in the possession of an agent, unless the contrary appear from some general usage or peculiar mode of dealing between the parties j for an agent stands in the place of his principal, Wilson v. Anderton, 1 B. & Ad. 450 ; Hardman v. Wilcock, 9 Bing. 382 ; and although an agent is estopped from setting up the title of luird persons unless they make a claim on him, he is not estopped if they do, any pjore than a tenant is estopped from disputing his land- lord's title under the sjme circumstances : Pope v. Biggs, 9 B. & C. 245. It is even doubtful whether a usage between a seller and his warehouseman not to deliver without a delivery order can be good as against the latter, when the seller has parted with his right of property and also of possession ; for it is clear that an agent is justifiable in delivering goods to the person entitled to them although contrary to the directions of his principal, and his own express promise to him : Syeds v. Hay, 4 T. R. 260. Per Lord Ten- terden in Howard v. Tucker, 1 B. & Ad. 713 ; and per Parke, J., in Brandt V. Bowlby, 2 B. & Ad. 937, 938. *But the usage proved has really p ^„g _ no application to the case. If the plaintiffs had placed their own L J goods in Yates's warehouse it would have applied ; but that was not the case ; and therefore the usage rather tends to show that the plaintiffs never obtain- ed the right of possession, but only had the right of having a delivery order accepted by Yates ; and there is nothing in the usage to show that they might not pass away that right without a delivery order. The usage, too, if construed as extensively as contended for, is bad in itself, as being contrary to a general principle of law, because it would put the agent in a different position, as regards the world, from his principal : Todd v. Eeid, 4 B. & A. 210. Customs encouraging trade, and merely contradict- ing technical rules of law, may be good ; but the custom here should have been more strictly proved ; it should have been expressly made out that the goods are never considered in the trade as delivered until a delivery order is accepted; or that the goods cannot be delivered without a delivery order ; whereas the proof is confined to the mere mode of de- livery, to the practice actually followed by warehousemen in delivering. A delivery order is not like a dock warrant, which is the symbol of pro- perty, and passes the property mentioned in it, like bills of lading or ex- change. A delivery order is not a negotiable instrument ; the want of it will not prevent a sale ; it only passes between the owner of the goods and the warehouseman. It is never used before the goods are wanted out. It is not preserved in the warehouseman's office as a record of the title to the property. Suppose the plaintiffs had verbally authorized Yates tO' 48 ROSS ON OOMMEEOIAL LAW. deliver the rum, and he had done so, could trover afterwards have been maintained on the ground that they had given him no written delivery order ? In Knowles v. Horsfall, 5 B. & A. 134, where the custom rela- tive to delivery orders was more fully proved than in the present. case. Lord Tenterden said, (5 B. & A. 139,) that if the plaintiff (the vendee) had given notice of the sale to the warehouse-keeper, the latter would not then have been justified in delivering the goods to any other order than that of the plaintiff. In fact, delivery orders seem to have been intro- duced to obviate the difficulty which the warehouseman might be under in knowing to whom he should deliver. Such an order, signed by the r *7ft T ^P^'^son in whose name the goods stood, would naturally be the L J best evidence of a right to a delivery. This is solely for the con- venience and advantage of the warehouseman ; but if he obtains by any other means the knowledge that the buyer is entitled to the right iof pos- session, he will be justified in delivering to him. The invoice is sufficient evidence ; and the case is the same in the present instance as if the invoice had been shown to Yates ; for if Yates is to be responsible for Collard's acts, Collard's knowledge must be taken to be his. If then, Yates may set up the rights of others, the plaintiffs' right of stoppage in transitu is extinguished by Collard's re-sale while the bills given by him were outstanding: Davis v. Reynolds, 1 Stark, 115; 4 Campb. 267. Craven v. Ryder, 6 Taunt. 433; 2 Marsh. 127, is distin- guishable : the reason of that decision is shown by the judgment of Lord Tenderden in Ruck v. Hatfield, 5 B. & A. 632. The delivery also of the samples by the plaintiffs to Collard extinguished the right of stoppage : for the delivery of part is a delivery of the whole. (On this point he referred to cases which have been already mentioned.) This is more par- ticularly the case when the part delivered consists of samples, as in the present instance, which are intended to be carried to market, and exhib- ited as part of a larger quantity supposed to be in the power of the holder of them : Hinde v. Whitehouse, 7 East, 558 ; Foster v. Frampton, 2 Car. & P. 470; S. C. 6 B. & C. 107. In Cooper v. Elston, 7 T. & R. 14, and Bloxam v. Morley, 4 B. & C. 951, the samples were not parcel of the bulk. (He also relied upon the marking of the casks, as showing a delivery, and extinguishing the right to stop in transitu.) Besides, the plaintiffs are estopped from claiming the rum as against Yates, by suffer- ing Collard to cooper and mark the casks, and act as the owner : they have put it in his power to commit a fraud on Yates and the world ; and, although the master is generally responsible for the acts of his servant, he is not so responsible to another person by whose improper conduct those acts are produced. The plaintiffs contended that Yates is liable for allowing Collard to deal on his own account; but it is not found that he allowed Collard to use his, Yates's, warehouse as his own. The plaintiffs should have informed Yates of the sale to Collard. They knew Collard r *7n *^^^ ^^^ '^^^^^' ^^^ ^^^ ^^^ control over the warehouse, and might L J commit a fraud on his master; and they put it in his power to do-so by delivering the itivoice, samples, &o. The plaintiffs sold to Col- lard on the same days they purchased of Yates, at increased profit. They in effect bought for Collard on commission. They gave him vouchers OONTRAOIOFSALE. 49 and samples, and allowed bim to cooper, in order that he might go into the market and obtain purchasers; and if he failed in that, they intended to reserve to themselves the power of coming on Yates, by keeping back the delivery orders. They never informed Yates of the applications made by CoUard to them for such orders, even after the 5th of October, when the first bill was dishonoured. The right of stoppage ought to have been exercised within a reasonable time after they were aware of CoUard's in- solvent situation : Green v. Haythorne, 1 Stark, 447. But if the plaintiifs are entitled to recover any portion, then Yates's co-defendants ought, as to so much, to be barred of their claims against him. They were guilty of negligence, at least, in not inquiring into Collard's title to the rums. The circumstances ought to have excited their suspicion, and they should have made inquiries of Yates, and of the custom-house oflScer who superintended the bonded warehouse, and who, by 6 G. 4, c. 112, s. 9, is bound to keep a transfer-book, open to the public. After dealing with Collard as a principal, they have no right to fall back on Yates, who is to be considered, as far as they are con- cerned, as unconnected with Collard. Bond and Proctor merely received the samples which the plafntiffs had left in Collard's possession, and which the latter had kept concealed from Yates. If the taking of sam- ples, the marking, &c., are not to be considered as amounting to a deli- very, and barring the right of stoppage in transitu, then neither of the co-defendants ever obtained the possession, and it is clear that they never acquired the reputed ownership : Knowles v. Horsfall, 5 B. & A. 134. Denman, C. J In this case it appears that the plaintiffs purchased 46 puncheons of rum lying in the warehouse of the defendant Yates, and paid for them, and thus became the owners. They sold a part of the rum to Collard, a clerk in the *service of Yates, and he paid ^ ,_„ ., for that part by bills, which were afterwards, but before the L J plaintiffs had demanded possession of the rum, dishonoured. The right of property and possession thereby revested in the plaintiffs, unless something had been done in the interval to divest them of their right of possession. While the bills were running, Collard had the power to take the rum into his possession, and to dispose of and sell it, but he did not exercise that power by any sufficient means. The invariable mode of delivering goods sold while in warehouses in Liverpool, is found to be by the vendors handing to the vendees delivery orders ; and here Collard obtained no delivery orders except for two puncheons. It is said that the delivery of a part operates in law as a constructive de- livery of the whole ; but that is so only where the delivery of part is intended to be a delivery of the whole. Here that was not so; for the plaintiffs, by refusing to deliver more than the two puncheons, gave notice to Collard that they meant to retain the possession of the rest. The taking of samples and coopering are circumstances from which a jury might infer an actual delivery of the whole ; but that is not found as a fact in the case, and I think the circumstances do not make it in- cumbent on the Court to say there was such a delivery of the whole. If I had been on the jury, I should have found that there was no such 50 ,ROSS ON COMM3!R0IAL LAW. actual delivery. It has been contended that the plaintiffs^ after having received notice of the dishonour of the bills by Collard, were bound to take some steps, to enforce their lien ; but it seems to me that nothing short of an actual delivery could divest a vendor of the right to stop in transitu, which is admitted to be analogous to the right of retaining. That being so, Yates, then, is not able to set up as against the plaintiffs the act of any third party, and therefore is not entitled to retain the possession of the rum. It has been said that the plaintiffs cannot re- cover, because they have given Collard the means of going into the market with an apparent title to the property : the answer to that is, he had not that evidence of a transfer to him, without which any pur- chaser's title would have been imperfect. Under all the circumstances, I think the right of property and possession as to the 44 puncheons remained in the plaintiffs, and that they are entitled to recover. |- ^_„ - *LiTTLBDALE, J I think the property and right to the pos- L J session of the 44 puncheons of rum are in the plaintiffs. They sold to Collard a parceUof goods in June, and another parcel in August. The first parcel was paid for by two bills of exchange, which were dis- honoured, and taken up by the plaintiffs to' save their own credit ; and those goods not having been paid for by Collard, he has clearly no right of property in them. As to the second parcel; Collard became insolvent in November; the bills given by him for the goods were dishonoured. The plaintiffs, therefore, (unless something had been done to prevent it in the interval between the purchase by Collard and the dishonour of his bills,) might resume possession and prevent the delivery. The only question is, whether in the interval, any thing of that nature was done by Collard. The invariable mode of delivering goods sold while they are lying in warehouses at Liverpool, is by the vendor handing delivery orders to the vendee. The plaintiffs had not given to Collard orders for the rum in question, therefore, there had not been a delivery to him in the usual mode. Had he, then, acquired the possession (as he undoubtedly might) in any other way ? An invoice was delivered. In the case of any sale of goods, the common course is for the vendor to deliver to the vendee an invoice, but that does not vest the actual possession of the goods in the vendee. The delivering of the invoice, therefore, did not give Col- lard any colourable title. Then after receiving the invoice, Collard coopered and marked the casks. The coopering was an act which might be done in order to ascertain that the casks were in proper order. The marking of the casks with his initials is an act which looks much more like taking possession. But Collard knew at the time that he had no delivery order. He was a clerk to Yates, and had the management of his cellar, and full power to mark and gauge the casks as he pleased. If that act had been done with the approbation of Yates, the latter know- ing that Collard had bought the rum, it might have been sufficient to vest the actual possession in the latter. But that was not so. It seems therefore to me, that Collard had not done sufficient to take the posses- sion : and then, the bills having been dishonoured on the 1st of Sep- tember, the plaintiffs were entitled to retain. OONTRAOTOFSALE. 51 *It remains to be considered whether the fact of CoUard having ^ ^^, ^ sold part of the rums to Kaye, and to Bond and Proctor, and L J the acts done by them, make any difference. It is a general principle of law, that a man who has not the property and right of possession in goods cannot transfer them to a vendee; and, therefore, if the original vendor chooses to retain or stop in transitu, a second vendee is in no better situation than the first. Then it is said there was a part delivery here, and that that, in point of law, operated as a constructive delivery of the whole. But that rule is confined to cases where the delivery of part is intended to be a delivery of the whole : Bunney v. Poyntz, 4. B. & Ad. 568; Simmons v. Swift, 5 B. & C. 857. On the contrary, there was in this case an express refusal to deliver the whole. There are two general principles of law which must decide the present case ; the one is, that so long as goods sold and unpaid for remain in the immediate possesssion of the vendor, he may refuse to deliver them ; and if they remain in the possession of his agent, i. e., a warehouseman or carrier, he may stop them. The other is, that a second vendee of a chattel cannot stand in a better situation than his vendor. Parke, J. — I am of the same opinion. No doubtful principle of law is involved in this case. The question is, what inferences ought to be drawn from the facts given in evidence ; and, particularly, whether there has been a delivery of the 44 puncheons of rum to Collard, or of 18 puncheons to Bond and Proctor, or 26 to Kaye ? Those are ques- tions of fact. The issue is, whether the plaintiff's are entitled to the property in, or to the right of possession of 44 puncheons of rum marked and numbered as stated in the issue, and being in the warehouse of the defendant Yates^ Collard purchased of. the plaintiffs. Kaye,. Bond, and Proctor, are sub-purchasers. It is clear that the plaintiffs were, originally, entitled to the goods. An invoice was made out to them, and the price was paid by them. I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without delivery. The general doctrine that the pro- perty in chattels passes by a contract of sale to a vendee without deli- livery, *is questioned in Bailey v. Culverwell, Com. Dig. Biens, p ^_, , D. 3 ; 2 Mann. & Ey. 566, in a note by the reporters ; but I L J apprehend the rule is correct as confined to a bargain for a specific chattel. Where there is a sale of goods generally, no property in them passes till delivery, because until then the very goods sold are not ascertained ; but where, by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel, and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pur- suance of a general contract. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel, and to pay the price, is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the bargainee. The defendant Yates is a warehouseman, and therefore may set up the jus tertii ; then the question is, Whether any third persons are 52 EOSSONOOMMEROIALLAW. entitled ? The plaintiffs parted with the property in the goods. They sold to Collard, but he did not take actual possession. There was no delivery order, nor was the rum delivered to him. The whole quantity sold to him in June and August was paid for by bills, three of which were dishonoured before the plaintiffs demanded the possession, and one bill afterwards : and CoUard had become generally insolvent before the demand was made. It is said that CoUard is entitled to the property in the goods; but the plaintiffs were vendors retaining the possession, and every vendor has a lien until he is paid. It is true that their lien was suspended as long as the bills were running ; but it revived as soon as they were dishonoured. On the 16th of November Collard had dis- honoured three bills, and had become insolvent, and was known to be so. The lien of the vendors then revived. If they had parted with the actual possession, and the goods had remained in the hands of a carrier, they would have been entitled to stop them in transitu, unless the sub- purchasers from Gollard had taken actual possession, and not having parted with the possession at all, they have a right to retain it under the same circumstances. If, indeed, Collard had taken possession of these goods, then the plaintiffs' right was at an end. , It is true he had taken samples; but r *7fi 1 **^®y ^®^® ^°^ V^^^ of *ts l"jll^ of t'^o commodity to be deli- L -I vered. Then it is said that by taking possession of the two puncheons, he took possession of the whole ; but it is clearly established, that if part be delivered with an intent to separate that part from the rest, it is not an inchoate delivery of the whole, so as to divest the right of property out of the vendor. Here the vendors, on being asked to _ give a delivery order for the whole, said they ^would give an order for one or 'two puncheons only ; thereby separating that part distinctly from the rest. As to the marking ; that is an equivocal act : it may be for the purpose of taking possession, or merely for that of identifying the property. Besides, here it is proved that the invariable mode of deli- vering goods . sold while they are in warehouses at Liverpool, is by giving the vendee a delivery order. I agree that, nothwithstanding such custom, there may be a delivery by some other mode. The absence of a customary order, however, is a strong circumstance to show that pos- session was not intended to be delivered, where the acts relied upon to show that possession was taken, are equivocal. These are all the facts of the case, as far as they relate to Collard. Then it is said that Collard sold 26 puncheons to Kaye, and 18 to Bond and Proctor, that possession .has been taken by them, and the lien of the plaintiffs was thereby divested. Kaye coopered and gauged the casks. Now, gauging is an equivocal act ; it might be done to ascertain the quantity contained in them, before he paid for them. Coopering is an act much more like taking possession; and it is the only part of the case upon which I have entertained any doubt. But when we consider that it was objected to at first, and until Collard interfered ; and that a delivery order, which is the usual mode of transferring property from vendor to vendee at Liverpool, was wanting in this instance, I think we ought not to come to the conclusion that Keye took possession, merely because he coopered CONTRACT or SALE. 53 and gauged the casks. As to Bond and Proctor, the case is less strong, for they never cooperqd or gauged. Then there was no delivery to the sub vendees j and the rule is clear, that a second vendee, who neglects to take cither actual or constructive possession, is in the same situation as the first vendee under whom he claims. He gets the title defeasible *on non-payment of the . price by the first vendee : Craven v. p ^»- -, Ryder, 6 Taunt. 433 ; 2 Marsh. 127. There is no question on L J these propositions of law. The only difficulty is one of fact, whether there was a delivery or not. It being thus established that Yates is liable to the plaintiffs, another point arises ; and that is, whether he has made himself liable by his own conduct to the sub-purchasers also. If he had undertaken to deliver to them, or represented to them that they were the goods of Collard, and they had acted on the faith of that engagement or representation, he might be liable to them ; but there is nothing to show that. As to Bond and Proctor, nothing of the sort took place ; and, with regard to Kaye, the only circumstance is, that he was allowed to gauge the casks : but it would be going very far to say, considering the circumstances under which it took place, that this was an admission by Yates that Kaye might have full possession whenever he pleased ; nor does it appear that Kaye was induced to alter his con- dition in consequence. Therefore he, as well as Bond and Proctor, is without remedy against Yates. Patteson, J. — The question to be decided in this case is one rather of fact than of law. The only doubtful point is, whether possession of the goods has been taken by Collard or his sub-vendees. We are empowered by the case to draw from the facts the same .inference which a jury might. Now it appears that Yates sold the goods to the plaintiffs, and they paid for them. The property thereby was transferred to them, and when they sold, it was in like manner transferred to the sub-vendee, subject to the right of stoppage in transitu. The sale to the plaintiffs placed Yates in the situation of warehouseman to them. It is found to bo the invariable mode of delivering goods sold, while lying in ware- houses at Liverpool, for the vendor to give the vendee a delivery order on the warehouseman. The difficulty in this case arises from that cir- cumstance, and also from Collard's filling two characters, that of clerk to Yates, and that of purchaser. If there had been transfer books, and the transfer had been into Collard's name, he might have made a good title to the sub-purchasers j but here the goods remain with the ware- houseman in the name of the first purchasers, *although there p ^.-j, -. may be twenty different changes of property. The acts relied L J on to show that Collard took possesssion are, that he had samples, and that he coopered and gauged the casks ; but the rums were sampled on the quay when landed, and the samples were clearly no part of the bulk sold. If the coopering had been by a purchaser from the plaintiffs, who was wholly unconnected with Yates, and who had been suffered by Yates to cooper the casks in the warehouse, I am not prepared to say that that would not have been an act of ownership from which I should have inferred a delivery to, and an actual possession by Collard. But he was Yates's clerk, and had the control over his cellar, and coopered 54 ROSSONOOMMEKOIAIiLAW. the oaaks immediately after he had made the purchase. The plaintiffs refused to give him a general delivery order ; they could not do a more deliberate act to show that they did not intend to give him the actual possession. The coopering was referable rather to his character of clerk to Yates, than to that of a purchaser from the plaintiffs ; and, if so, it was not a taking possession by him. Then it is said the re-sale to Bond and Proctor, and to Kaye, alters the case, because they have paid CoUard ; but that is immaterial, except so far as it would prevent Col- lard (as against them) from stopping in transitu. But it does not divest the original vendor of his right to stop in transitu : Craven v. Eyder, 6 Taunt. 433; 2 Marsh. 127. Collard's bills having been dishonoured, the plaintiffs were clearly entitled to retain : Davis v. Reynolds, 1 Stark, 116 ; 4 Campb. 267. The act of coopering by Kaye, therefore, as against the plaintiffs, can have no greater effect than the act of coopering by Collard. Then, as between Tates and Kaye, a question arises whether the property was vested in Kaye, the sub- purchaser, as against Yates. It appears that Kaye, after Yates's other clerk had refused to allow him to cooper the puncheons, obtained per- mission of Collard to do so. Now, here again the diflSculty arises from the fact of Collard being both seller of the rums to Kaye, and servant to Yates. If he had been a person wholly unconnected with Yates, the act done by him would only have been referable to his character of seller. And if Collard had not been the seller, and Kaye had been suffered by Collard, as the clerk of Yates, to cooper the casks, Yates p. ^^q ., might have been bound by his act. *But here Kaye knew L -• Collard to be the seller of the rums, and knowing also that the other clerk of Yates would not allow him to cooper the casks, he applied for and obtained permission of Collard. The lajjier, therefore, must be considered as having acted in his character of purchaser and seller, and not of clerk to Yates. Yates, therefore, is not bound by his act as the act of an agent, but Kaye must take the consequences of the acts of Collard ; and, consequently, the property was not in Kaye as against Yates. The plaintiffs are therefore entitled to judgment. 1. Partial delivery of goods sold will not defeat the seller's lieu over the por- tion undelivered. The case of Payne v. Shadbolt, 1 Campb. 42 Y, was an action of assumpsit for the non-dfilivery of wood, purchased by the plaintiflp from the defendant, to be paid for on delivery by a bill at two months. The defendant had permitted the plaintiff to carry away a part of the wood without receiving any bill, but he refused to let him have the remainder until it should be paid for, according to the terms of the contract. It was contended on the part of the plaintiff, that the defendant had completely dispensed with the condition of being paid by a bill at two months, and having waived it once, the property of the whole of the wood absolutely vested in the purchaser, so that the vendor was bound to deliver it up, and to seek for payment by the^common means. Lord EUenborough held that this was only a dispensation pro tanto, and that the ven- dor was entitled at any time to stand on his rights, as they were originally estab- lished by the contract of sale. 2. The case of Bunney v. Poyntz, 4 B. & Ad. 568, was an action of trover for hay sold by the defendant's bailiff, under authority from the plaintiff for that CONTRACT OP SALE. 55 purpose. The bailiff took the purchaser's note for the price, and a portion of the hay was cut by his permission, on leave being asked to do■ J which remained in their custody, to the defendants at Liverpool, with a special indorsement to deliver to them and no other, which the defendants received on the 58th of August, 1786, together with the in- voice of the goods and a power of attorney. The ship arrived at Liver- pool on the 28th of August, and the goods were delivered by the master, on account of Turings, to the defendants, who on demand and tender of freight, refused to deliver the same to the plaintiffs. The defendants in this case are not stake-holders, but they are in effect the same as Turings, and the possession they have got is the possession of Turings. The plaintiffs claim under Freeman, but though they de- rive a title under him, they do not represeilt him, so as to be answerable for his engagements, nor are they affected by any notice of those circum- stances which would bar the claim of him or of his assignees. If they have acquired a legal right, they have acquired it honestly, and if they have trusted to a bad title, they are innocent sufferers. The question then is, Whether the plaintiffs have a superior legal title to that which, on principles of natural justice, the original holders of goods not paid for has to maintain that possesion of them which he actually holds at the time of the demand ? The argument on the part of the plaintiffs asserts that the indorsement of the bill of lading by the Turings, is an assignment of the property in the goods to Freeman, in the same manner as the indorsement of a bill of exchange is an assignment of the debt. That Freeman could assign over that property, and that by delivery of the bill of lading to the plain- tiffs for a valuable consideration, they have a just right to the property conveyed by it, not affected by any claim of the Turings, of which they had no notice. On the part of the defendants it is argued, that the bill of lading is not in its nature a negotiable instrument ; that it more resem- bles a cTiose in action ; that the indorsement of it is not an assignment that conveys any interest^ but a mere authority to the consignee to receive the goods mentioned in the bill j and therefore it cannot be made a secu- rity by the consignee for money advanced to him ; but the person who accepted it must stand in the place of the consignee, and cannot gain a CONTKAOTOFSALE. 75 better title than he had to give. As *these propositions on either p^- ^- . side seemed to be stated too loosely, and as it is of great import- L J ance that the nature of an instrument so frequent in commerce as a bill lading should be clearly defined, I think it necessary to state my ideas of its nature and effect. A bill of lading is the written evidence of a contract for the carriage and delivery of goods sent by sea, for a certain freight. The contract, in legal language, is a contract of bailment, 2 Lord Kaym, 912. In the usual form of the contract, the undertaking is to deliver to the order or assigns of the shipper. By the delivery on board, the shipmaster acquires a special property to support that possession which he holds in the right of another, and to enable him to perform his undertaking. The general property remains with the shipper of the goods, until he has disposed of it by some act sufficient in law to transfer property. The indorsement of the bill of lading is simply a direction of the delivery of the goods. When this indorsement is in blank, the holder of the bill of lading may receive the goods, and his receipt will discharge the shipmaster ; but the holder of the bill, if it came into his hands casually, without any just title, can acquire no property in the goods. A special indorsement defines the person appointed to receive the goods; his receipt or order would, I con- ceive, be a sufficient discharge to the shipmaster, and in this respect I hold the bill of lading to be assignable. But what is it that the indorse- ment of the bill of lading assigns to the holder or the indorsee? a right to receive the goods and to discharge the shipmaster as having performed his undertaking. If any farther effect be allowed to it, the possession of a bill of lading would have greater force than the actual possession of the goods. Possession of goods is prima facie evidence of title ; but that possession may be precarious, as of a deposit; it may be criminal, as of a thing stolen ; it may be qualified, as of things in the custody of a servant, carrier, or a factor. Mere possession without a just title gives no pro- perty, and the person to whom such possession is transferred by delivery must take his hazard of the title of his author. The indorsement of a bill of lading differs from the assignment of a chose in action, that is to say, of an obligation, as much as debts differ from effects. Goods in pawn, goods *bought before delivery, goods in a warehouse, or |-^- , „, on shipboard, may all be assigned. The order to deliver is an L J assignment of the thing itself which, ought to be delivered on demand, and the right to sue if the demand is refused, is attached to the thing. The case in 1 Lord Eaym, 271, was well determined on the principal point, that the consignee might maintain an action for the goods, because he had either a special property in them, or a right of action on the con- tract ; and I assent to the dictum that he might assign over his right. But the question remains, what right passes by the first indorsement or by the assignment of it ? An assignment of goods in pawn, or of goods bought but not delivered, cannot transmit a right to take the one without redemption, and the other without the payment of the price. As the in- dorsement of a bill of lading is an assignment of the goods themselves, it differs esentially from the indorsement of a bill of exchange ; which is the assignment of a debt due to the payee, and which by the custom of trade, 76. ROSSONCOMMEBOIALLAW. passes the whole interest in the debt so completely, that the holder of the bill for a valuable consideration, without notice, is not affected even by the crime of the person from whom he received the bill. Bills of lading differ essentially from bills of exchange in another re- spect. Bills of exchange can only be used for one given purpose, namely, to extend credit by a speedy transfer of the debt which one person owes to another, to a third person. Bills of lading may be assigned for as many different purposes as goods may be delivered. They may be indorsed to the true owner of the goods by the freighter who acts merely as his ser- vant. They may be indorsed to a factor to sell for the owner. They may be indorsed by the seller of the goods to the buyer. They are not drawn in any certain form. They sometimes do, and sometimes do not, express on whose account and risk the goods are shipped. They often, especially in time of war, express a false account and risk. They seldom if ever bear upon the face of them any indication of the purpose of the indorsement. To such an instrument, so various in its use, it seems im- possible to apply the same rules as govern the indorsement of bills of ex- l-^^^^ change. The silence of all authors treating of commercial *law L J is a strong argument that no general usage has made them nego- tiable as bills. Some evidence appears to have been given in other cases, Snee v. Presoot, 1 Atk. 245, that the received opinion of merchants was against their being so negotiable. And unless there was a clear established general usage to place the assignment of a bill of lading upon the same footing as the indorsement of a bill of exchange, that country which should first adopt such a law would lose its credit with the rest of the commercial world ; for. the immediate consequence would be to prefer the interest of the resident factors and their creditors to the fair claim of the foreign consignor. It would not be much less pernicious to its internal commerce ; for every case of this nature is founded in a breach of confidence, always attended with a suspicion of collusion, and leads to a dangerous and false credit at the hazard and expense of the fair trader. If bills of lading are not negotiable as bills of exchange, and yet are assignable, what is the consequence ? That the assignee by in- dorsement must inquire under what title the bills have come to the hands of the person from whom he takes them. Is this more difficult than to inquire into the title by which goods are sold or assigned ? In the case of Hartop v. Hoare, 2 Stra. 1187; 1 Wils. 8, jewels deposited with a goldsmith were pawned by him at a banker's. Was there any imputation, even of neglect, in a banker trusting to the apparent pos- session of jewels by a goldsmith ? Yet they were the property of another, and the banker suffered the loss. It is received law, that a factor may sell, but cannot pawn the goods of his consignor ; Patterson V. Tash, 2 Str. 1178. The person therefore who took an assignment of goods from a factor in security, could not retain them against the claim of the consignor; and yet in this case the factor might have sold them and embezzled the money. It has been argued, that it is necessary in commerce to raise money on goods at sea, and this can only be done by assigning the bills of lading. Is it then nothing that an assignee of a OONTRAOT OF SALE. 77 bill of lading gains by the indorsement? He has all the right the indorser could give him, a title to the possession of the goods when they arrive. He has a safe security if he has dealt with an honest man. And it seems as if it could be of little utility to trade to extend credit by affording a facility *to raise money by unfair dealing. Money pj|,.-„ will be raised on goods at sea, though bills of lading should not L J be negotiable. In every case where there is a fair ground of credit ; but a man of doubtful character will not find it so easy to raise money at the risk of others. The conclusions which follow from this reasoning, if it be just, are — First, That an order to direct the delivery of goods indorsed on a bill of lading, is not equivalent nor even analogous to the assignment of an order to pay money, by the indorsement of a bill of exchange. Secondly, That the negotiability of bills and promissory notes, is founded on the custom of merchants and positive lawj but as there is no positive law, neither can any custom of merchants apply to such an instrument as a bill of lading. Thirdly, That it is therefore not negotiable as a bill, but assignable; and passes such right, and no better, as the person assigning had in it. This last proposition I confirm by the consideration, that actual deli- very of the goods does not of itself transfer an absolute ownership in them without a title of property ; and that the indorsement of a bill of lading, as it cannot in any case transfer more right than the actual deli- very, cannot in every case pass the property ; and I therefore infer that the mere indorsement can in no case convey an absolute property. It may however be said, that admitting an indorsement of a bill of lading does not in all cases import a transfer of the property of the goods con- signed, yet where the goods when delivered would belong to the indorsee of the bill, and the indorsement accompanies a title of property, it ought in law to bind the consignor, at least with respect to the interest of third parties. This argument has, I confess, a very specious appearance. The whole difficulty of the case rests upon it ; and I am not surprised at the impression it has made, having long felt the force of it myself. A fair trader, it is said, is deceived by the misplaced confidence of the con- signor. The purchaser sees a title to the delivery of the goods placed in the hands of a man who offers them to sale. Goods not arrived are every day sold without any suspicion of distress, oh speculations of the fairest nature. The purchaser places no credit in the consignee, but in the indorsement produced to him, which is the act of the consignor. The *first consideration which affects this argument is, that it r^iiq-i proves too much, and is inconsistent with the admission. But <- -1 let us examine what the legal right of the vendor is, and whether with respect to him the assignee of his bill of lading stands on better ground than the consignee from whom he received it. I state it to be a clear proposition, that the vendor of goods not paid for, may retain the pos- session against the vendee ; not by aid of any equity, but on grounds of law. Our oldest books consider the payment of the price, (day not being given,) as a condition precedent implied in the contract of sale; and that the vendee cannot take the goods, nor sue for them without tender of January, 1855. — 6 78 ROSS ON COMMERCIAL LAW. the price. If day had been given for payment, and the vendee could support an action of trover against the vendor, the price unpaid must be deducted from the damages, in the same manner as if he had brought an action on the contract for the non-delivery. Snee v. Prescot, 1 Atk. 245. The sale is not executed before delivery: and in the simplicity of former times, a delivery into the actual possession of the vendee or his servant was always supposed. In the variety and extent of dealing which the increase of commerce has introduced, the delivery may be presumed from circumstances, ,so as to vest a property in the vendee. A destination of the goods by the vendor to the use of the vendee; the marking them, or making them up to be delivered; the removing them for the purpose of being delivered, may all entitle the vendee to act as owner, to assign, and to maintain an action against a third person, into whose hands they have c8me. But the title of the vendor is never entirely divested, till the goods have come into the possession of the vendee. He has therefore a complete right, for just cause, to retract the intended delivery, and to stop the goods in transitu. The oases determined in our courts of law have confirmed this doctrine, and the same law obtains in other countries. In an action tried before me at Guildhall, after the last Trinity Term, it appeared in evidence, that one Bowering had bought a cask of indigo of Verrulez & Co. at Amsterdam, which was sent from the warehouse of the seller, and shipped on board a vessel commanded by one Tullooh, by the appointment of Bowering. The bills of lading were made out, r*niT ^^^ *signed by Tulloch, to deliver to Bowering or order, who i- J immediately indorsed one of them to his correspondent in Lon- •don, and sent it by the post. Verrulez having information of Bower- ing's insolvency before the ship sailed from the Texel, summoned Tul- loch, the shipmaster, before the court at Amsterdanj, who ordered him to sign other bills of lading to the order of Verrulez. Upon the arrival of the ship in London, the shipmaster delivered the goods, according to the last bills, to the order of Verrulez. This case as to the practice of merchants, deserves particular attention, for the judges of the court at Amsterdam are merchants of the most extensive dealings, and they are assisted by very eminent lawyers. The cases in our law, which I have ■ taken some pains to collect and examine, are very clear upon this point. Snee v. Prescot, though in a court of equity, is professedly determined on legal grounds by Lord Hardwicke, who was well versed in the prin- ciples of law ; and it is an authority, not only in support of the right of the owner unpaid, to retain against the consignee, but against those claiming under the consignee by assignment for valuable consideration, and without notice. But the case of Fearon v. Bowers, tried before Lord Chief Justice Lee, is a case at law, and it is to the same effect as Snee v. Prescot. So also is the case of the Assignees of Burghal v. Howard, before Lord MiJbsfield. The right of the consignor to stop the goods, is here considered as a legal right. It will make no difference in the case, whether the right is considered as springing from the original property not yet transferred by delivery, or as a right to retain the ithings as a pledge for the price unpaid. In all the oases cited in the CONTRAOTOFSALE. 79 course of the argument, the right of the consignor to stop the goods is admitted as against the consignee. But it is contended, that the right ceases as against a person claiming under the consignee for a valuable consideration, and without notice that the price is unpaid. To support this position, it is necessary to maintain that the right of the consignor is not a perfect legal right in the thing itself, but that it is only founded upon a personal exception to the consignee, which would preclude his demand as contrary to good faith, and unconscionable. If the con- signor had no legal title, the question between him and the bona fide purchaser from the consignee, would turn on *very nice conside- j-^, ^ ,- rations of equity. But a legal lien, as well as a right of pro- L J perty, precludes these considerations ; and the admitted right of the consignor to stop the goods in transitu as against the consignee, can only rest upon his original title as owner, not divested, or upon a legal title to hold the possession of the goods, till the price is paid, as a pledge for the price. It has been asserted in the course of the argument, that the right of the consignor has by judicial determinations been treated as a mere equitable claim, in cases between him and the consignee. To examine the force of this assertion it is necessary to take a review of the several determinations. « The first is the case of Wright v. Campbell, 4 Burr. 2046, on which the chief stress is laid. The first observation that occurs upon that case is, that nothing was determined by it. A case was reserved by the Judge at Nisi Prius, on the argument of which the Court thought the facts imperfectly stated, and directed a new trial. That case cannot therefore be urged as a decision upon the point. But it is quoted as containing in the report of it, an opinion of Lord Mansfield, that the right of the c&nsignor to stop the goods cannot be set up against a third person claiming under an indorsement for value and without notice. The authority of such an opinion, though no decision had followed upon it, would deservedly be very great, from the high respect due to the experience and wisdom of so great a Judge. But I am not able to dis- cover that his opinion was delivered to that extent, and I assent to the opinion as it was delivered, and very correctly applied to the case then in question. Lord Mansfield is there speaking of the consignment of goods to a factor to sell for the owner; and he very truly observes — First, That as against the factor, the owner may retain the goods ; Secondly, That a person into whose hands the factor has passed the consignment with notice, is exactly in the same situation with the factor himself; Thirdly, That a bona fide purchaser from the factor shall have a right to the delivery of the goods, because they were sold bona fide, and by the owner's own authority. If the owner of the goods entrust another to sell them for him, and to receive the price, there is no doubt but that he has bound himself to deliver the goods to the purchaser; and that would hold equally if the *goods had never been removed r«iig-| from his warehouse. The question on the right of the consignor L -• to stop and retain the goods, can never occur where the factor has acted strictly according to the orders of his principal, and where, consequently, he has bound him by his contract. There would be no possible ground 80 EOSSONCOMMEECIALLAW. for argument in the case now before the Court, if the plaintififs in the action could maintain that Tarings & Co. had sold to them by the inter- vention of Freeman, and were therefore bound ex contractu to deliver the goods. Lord Mansfield's opinion upon the direct question of the right of the consignor to stop the goods against a third party, who has obtained an indorsement of the bill of lading, is quoted in favour of the consignor, as delivered in two cases at Nisi Prius ; Savignac v. Cuff, in 1778, and Stokes v. La Riviere, in 1785. Observations are made on these cases, that they were governed by particular circumstances ; and undoubtedly when there is not an accurate and agreed state of them, no great stress can be laid on their authority. The case of Caldwell v. Ball, 1 Term Rep. B. R. 205, is improperly quoted on the part of the plain- tiffs in the action, because the question there was on the priority of consignments, and the right of the consigner did not come under con- sideration. The case of Hibbert v. Carter was also cited on the same side, not as having decided any question upon the consignors right to stop the goods, but as establishing a position, that by the indorsement of the bill of lading, the property Was so completely transferred to the indorsee, that the shipper of the goods had no longer an insurable inter- est in them. The bill of lading in that case had been indorsed to a creditor of the shipper; and undoubtedly if the fact had been as it was at first supposed, that the cargo had been accepted in payment of the debt, the conclusion would have been just; for the property of the goods and the risk would have completely passed from the shipper to the in- dorsee ; it would have amounted to a sale executed for a consideration paid. But it is not to be inferred from that case, that an indorsement of a bill of lading, the goods remaining at the risk of the shipper, trans- fers the property so that a policy of insurance upon them in his name would be void. The greater part of the consignments from the West r*1 1 71 ■''■°*^'®^) ^^^ ^ countries where the balance of trade is in *favour L -I of England, are made to a creditor of the shipper; but they are no discharge of the debt by indorsement of the bill of lading ; the expense of insurance, freight, duties, are all charged to the shipper, and the net proceeds alone can be applied to the discharge of his debt. That case therefore has no application to the present question. And from all the cases that have been collected it does not appear that there has ever been a decision against the legal right of the consignor to stop the goods in transitu, before the case now brought before this Court. When a point of law which is of general concern in the daily business of the world is directly decided, the event of it fixes the public attention, directs the opinion, and regulates the practice of those who are interested. But where no such decision has in fact occurred, it is impossible to fix any standard of opinion upon loose reports of incidental arguments. The rule therefore which the Court is to lay down in this case will have the effect, not to disturb, but to settle the notions of the commercial part of this country on a point of very great importance as it regards the security and good faith of their transactions. For these reasons we think the judgment of the Court of King's Bench ought to be reversed. CONTRACT OF SALE. 81 House of Lords, June 14, ITDS.— 6 East, 21. This judgment was reversed in the House of Lords, and a venire de novo was awarded in June, 1793, on the ground that the demurrer to evidence appeared to be informal on the record, Michaelmas Term. The following opinion was delivered by Mr, Justice Buller upon the prin- cipal question before the House : — Buller, J. — Before I consider what is the law arising on this case, I shall endeavour to ascertain what the case itself is. It appears that the two bills of lading were indorsed in blank by Turing, and sent so indorsed in the same state by Freeman to the plaintiflFs, in order that the goods might, on their arrival at Liverpool, be taken possession of, and sold by the plaintiff on Freeman's account. I shall first consider what is the e&ect of a blank indorsement ; and, secondly, I will examine whether the words, " to be sold by the plain tifis on Freeman's account," make any difference in the case. As to the first, I am of *opinion r,i i o-, that a blank indorsement has precisely the same effect that an ■- J indorsement to deliver to the plaintiffs would have. In the case of bills of exchange, the effect of a blank indorsement is too universally known to be doubted j and, therefore, on that head I shall only mention the case of Eussell v. Langstaffe, Douglas, 496, where a man indorsed his name on copperplate checks, made in the form of promissory notes, but in blank, i. e. without any sum, date, or time of payment : and the Court held, that the indorsement on a blank note is a letter of credit for an indefinite sum ; and the defendant was liable for the sum afterwards inserted in the note, whatever it might be. In the case of bills of lading, it has been admitted at your Lordships' Bar, and was so in the Court of King's Bench, that a blank indorsement has the same effect as an in- dorsement filled up to deliver to a particular person by name. In the case of Snee v. Prescott, Lord Hardwicke thought that there was a dis- tinction between a bill of lading indorsed in blank, and one that was filled up; and upon that ground part of his decree was founded. But that I conceive to be a clear mistake. And it appears from the case of Savignac v. Cuff, (of which case I know nothing but from what has been quoted by the counsel, and that case having occurred before the unfor- tunate year 1780, no further account can be obtained,) that though Lord Mansfield at first thought that ther^was a distinction between bills of lading indorsed in blank and otherwise, yet he afterwards abandoned that' ground. In Solomons v. Nissen, Mich. 1788, 2 T. K. 674, the bill of lading was to order or assigns, and the indorsement in blank; but the Court held it to be clear that the property passed. He who delivers a bill of lading indorsed in blank to another, not only puts it in the power of the person to whom it is delivered, but gives him authority to fill it up as he pleases; and it has the same effect as if it were filled up with an order to deliver to him. The next point to be considered is. What difference do the words " to be sold by the plaintiffs on Freeman's account," make in the present case? It has been argued that they prove the plaintiffs to be factors only. But it is to be observed that these words are not found in the bill of lading itself : and, therefore, they cannot alter the nature and construction of it. I say they were 8a ROSS ON COMMERCIAL LAW. not in *the bill of lading itself ; for it is expressly stated that the L •'■■'■"] bill of lading was sent by Freeman in the same state in which it was received, and in that there is no restriction or qualification what- ever ; but it appeared by some other evidence, I suppose by some letter of advice, that the goods were so sent, to be sold by the plaintiffs on Freeman's account. Supposing that the plaintiffs are to be considered as factors, yet if the bill of lading, as I shall contend presently, passes the legal property in the goods, the circumstance of the plaintiffs being liable to render an account to Freeman for those goods afterwards, will not put Turing in a better condition in this cause ; for a factor has not only a right to keep goods till he is paid all that he has advanced or expended on account of the particular goods, but also till he is paid the balance of his general account. The truth of the case, as I consider it, is, that Freeman transferred the legal property of the goods to the plain- tiffs, who were to sell them, and pay themselves the £520 advanced in bills out of the produce, and so be accountable to Freeman for the re- mainder, if there were any. But if the goods had not sold for so much as £520, Freeman would still have remained debtor to the plaintiffs for the difference ; and so far only they were sold on Freeman's account. But I hold that a factor who has the legal property in goods can never have that property taken from him, till he is paid the uttermost farthing which is due to him. Kruger v. Wilcocks, Ambl. 252. This brings me to the two great questions in the cause, which are vjandoubtedly of as much importance to trade as any questions which ever can arise. The first is. Whether at law the property of goods at sea passes by the in- dorsement of a bill of lading ? The second, Whether the defendant, who stands in the place of the original owner, had a right to stop the goods in transitu f And as to the first, every authority which can be adduced from the earliest period of time down to the present hour, agree that at law the property does pass as absolutely and as effectually as if the goods had been actually delivered into the hands of the consignee. In 1690 it was so decided in the case of Wiseman v. Vandeputt, 2 Vera. 203. In 1697, the Court determined again in Evans v. Marlett, that the property passes by the bill of lading. That case is reported in 1 r*120"l ^^' ^^y™- '^'^^> ^""^ '° 12 ^°^- 1^6 ; "^"^^ bo*^ I'ooks agree L J in the points decided. Lord Eaymond states it to be, that if goods by a bill of lading are consigned to A., A. is the owner, and must bring the action : but if the bill be special, to be delivered to A. to the use of B., B. ought to bring the action : but if the bill be general to A., and the invoice only shows that they are on account of B., (which 1 take to be the present case,) A. ought always to bring the action ; for the property is in him, and B. has only a trust. And Holt, 0. J., says the consignee of a bill of lading has such a property as that he may assign it over; and Shower said it had been so adjudged in the ExcBequer. In 12 Mod. it is said that the Court held that the invoice signified nothing: but that the consignment in a bill of lading gives the property, except where it is for the account of another; that is, where on the face of the bill it imports to be for another. In Wright v. Campbell, in 1767 4 Burr. 2046, Lord Mansfield, said "If the goods are bona fide sold by CONTRACT or SALE. 83 the factor at sea, (as they may be where no other delivery caa be given,) it will be good notwithstanding the Stat. 21 Jac. I. The vendee shall hold them by virtue of the bill of sale, though no actual possession be delivered : and the owner can never dispute with the vendee, because the goods were sold bona fide, and by the owner's own authority." His Lordship added, (though that is not stated in the printed report,) that the doctrine in Lord Kaymond was vght, that the property of goods at sea was transferable. In Fearon v. Bowers, in 1753, Lord C. J. Lee held, that a biU of lading transferred the property, and a right to assign that property by indorsement ; but that the captain was discharged by a delivery under either bill. In Snee v. Presoot, in 1743, 1 Atk. 245, Lord Hardwieke says, " where a factor, by the order of his principal, buys goods with- his own money, an4 makes the bill of lading absolutely in the principal's name, to have the goods delivered to the principal, in such case the factor cannot countermand the bill of lading ; but it passes the property of the goods fully and irrevocably in the principal." Then he distinguishes the case of blank indorsement, in which he was clearly wrong. He admits, too, that if upon a bill of lading between merchants residing in different countries, the goods be shipped and consigned to the principal expressly in the body of *the bill of lading, that r^ini-i vests the property in the consignee. In Caldwell v. Ball, in •- J 1786, 1 T. E. 205, the Court held that the indorsement of the bill of lading was an immediate transfer of the legal interests in the cargo. In Hibbert v. Carter, in 1787, 1 T. R. 745, the Court held again that the indorsement and delivery of the bill of lading to a creditor^rma facie, conveyed the whole property in the goods from the time of its delivery. The case of Godfrey v. Furzo, 3 P. Wms. 185, was quoted on behalf of the defendant. A merchant at Bilboa sent goods from thence to B., a merchant in London, for the use of B., and drew bills on B. for the money. The goods arrived in London, which B. received, but did not pay the money, and died insolvent. The merchant beyond sea brought bis bill against the executors of the merchants in London, praying that the goods might be accounted for to him, and insisting that he had a lien on them till paid. ' Lord Chancellor says, when a mierchant beyond sea consigns goods to a merchant in London on account of the latter, and draws bills on him for such goods, though the money be not paid, yet the property of the goods vests in the merchant in London, who is credited for them, and consequently they are liable to his debts. But where a merchant beyond sea consigns goods to a factor in London, who receives them, the factor in this case, being only a servant or agent for the merchant beyond sea, can have no property in such goods, neither will they be affected by his bankruptcy. The whole of this case is clear law j but it makes for the plaintiffs and not for the defendants. The first point is this very case : for the bill of lading here is generally to the plaintiffs, and therefore on their account; and in such case, though the money be not paid, the property vests in the consignee. And this is so laid down without regard to the question, whether the goods were received by the consignee or not. The next point there stated is, What is the law 84 ROSSONCOMMEROIAtLAW. in the case of a pure factor, without any demand of his own ? Lord King says he would have no property. This expression is used as between consignor and consignee, and obviously means iio more than that, in the case put, the consignor may reclaim the property from the consignee. The reason given by Lord King is, because in this case the *factor is only a servant or agent for the merchant beyond sea. L J I agree, if he be merely a servant or agent;, that part of the case is also good law, and the principal may retain the property. But then it remains to be proved that a man who is in advance, or under acceptances on account of the goods, is simply and merely a servant or agent ; for which no authority has been, or, as I believe, can be pro- duced. Here the bills were drawn by Freeman upon the plaintiffs upon the same day, and at the same time, as he sent the goods to them ; and therefore this must, by fair and necessary intendment, be taken to be one entire transaction ; and that the bills were drawn on account of the goods, unless the contrary appear. So far from the contrary appearing here, when it was thought proper to allege on this demurrer that the price of the goods was not paid, it is expressly so stated ; for the de- murrer says, that the price of the goods is now due to Turing and Son. But it finds that the other bills were afterwards paid by the plaintiffs; and consequently they have paid for the goods in question. As between the principal and mere factor, who has neither advanced nor engaged in anything for his principal, the principal has a right at all times to take back his goods at will : whether they be actually in the factor's posses- sion, or only on their passage, makes no difference; the principal may countermand his order : and though the property remain in the factor till such countermand, yet from that moment the property revests in the principal, and he may maintain trover. But in the present case the plaintiffs are not that mere agent or servant ; they have advanced £520 on the credit of those goods, which at a rising market were worth only £557 ; and they have beside, ^s I conceive, the legal property in the goods under the bill of lading. But it was contended- at the Bar, that the property never passed out of Turing; and to prove it, Hob. 41, was cited. In answer to this I must beg leave to say, that the position in Hobart does not apply; because there no day of payment was given; it was a bargain for ready money ; but here a month was given for pay- ment. And in Noy's Maxims, 87, this is laid down : " If a man do agree for a price of wares, he may not carry them away before he hath paid for them, if he have not a day expressly given to him to pay for r*1231 '^®"^-" Thorpe v. Thorpe, «Rep. temp. Holt, 96, and Brice v. L J James, Eep. temp. Lord Mansfield, S. P. So Dy. 30 and 76. And in Shep. Touch. 222, it is laid down, that 'if one sell me a horse, or anything for money, or any other valuable consideration, and the same thing is to be delivered to me at a day certain, and by our agree- ment a day is set for the payment of the money, it is a good bargain and sale to alter the property thereof: and I may have an action for the thing, and the seller for his money. Thus stand the authorities on the point of legal property; and from hence it appears that for upwards of 100 years past it has been the universal doctrine of Westminster-Hall, CONTEAOTOFSAIiB. 85 that by a bill of lading, and by the assignment of it, the legal property does pass. And, as I conceive, there is no judgment nor even a dictum, if properly understood, which impeaches this long string of cases. On the contrary, if any argument can be drawn by analogy from older cases on the vesting of property,' they all tend to the same conclusion. If these oases be law, and if the legal property be vested in the plain- tiffs, that, as it seems to me, puts a total end to the present case ; for then it will be incumbent on the defendants to show that they have superior equity which bears down the letter of the law : and which entitles them to retain the goods against the legal right of the plaintiffs, or they have np case at all. I find myself justified in saying that the legal title, if in the plaintiffs, must decide this cause by the very words of the judgment now appealed against; for the noble Lord who pro- nounced that judgment, emphatically observed in it, " that the plaintiffs claim under Freeman ; but though they derive a title under him, they do not represent him, so as to be answerable for his engagements : nor are they affected by any notice of those circumstances which would bar the claims of him or his assignees." This doctrine, to which I fully subscribe, seems, to me to be a clear answer to any supposed lien which Turing may have on the goods in question for the original price of them. But the second question made in the case, is, that however the legal property be decided, the defendants, who stand in the place of the original owner, had a right to stop the goods in transitu, and have a lien for the original price of them. Before I consider the authorities applicable to this part of the case, I will beg leave to make a few *observations on the right of stopping goods in transitu, and r^-in^-i on the nature and principle of liens. First, Neither of them "- -I are founded on property ; but they necessarily suppose the property to bo in some other person, and not in him who sets up either of these rights. They are qualified rights, which in given oases may be exercised over the property of another ; and it is a contradiction in terms to say a man has a lien upon his own goods, or a right to stop his own goods in transitu. If thg goods be his, he has a right to the p^session of them whether they be in transitu or not: he has a right to sell or dispose of them as he pleases, without the option of any other person : but he who has a lion only on goods, has no right so to do; he can only retain them till the original price be paid : and therefore if goods are sold for £500, and by a change of the market before they are delivered, they become next day worth £1000, the vendor can only retain them till the £500 be paid, unless the bargain be absolutely rescinded by the vendee's refusing to pay the £500. Secondly, Liens at law exist only in cases where the party entitled to them has the possession of the goods ; and if he once part with the possession after the lien attaches, the lien is gone. Thirdly, The right of stopping in transitu is founded wholly on equitable principles, which have been adopted in courts of law; and as far as they have been adopted, I\agree they will bind at law as well as in equity. So late as the year 1690, this right, or privi- lege, or whatever it may be called, was unknown to the law. The first of these propositions is self-evident, and requires no argument to prove 86 ROSS ON COMMEEOIAL LAW. it. As to the second, which respects liens, it is known and unquestion. able law, that if a carrier, a farrier, a tailor, or an inn-keeper, deliver up the goods, his lien is gone. So also is the case of a factor as to the particular goods : but, by the general usage in trade, he may retain for the balance of his account all goods in his hands, without regard to the time when or on what account he received them. In Snee v. Pres- cot. Lord Hardwicke says that which not only applies to the case of aliens, but to the right of stopping goods in transitu under circum- stances similar to the case in judgment ; for he says, where goods have been negotiated, and sold again, there it would be mischievous to say that the vendor or factor should *have a lien upon the goods for t 3 the price ; for then no dealer would know when he purchased goods safely. So in Lempriere v. Pasley, 2 T. K. 485, the Court said it would be a great inconvenience to commerce if it were to be laid down as law, that a man could never take up money upon the credit of goods consigned till they actually arrived in port. There are other cases which in my judgment apply as strongly against the right of seizing in transitu to the extent contended for by the defendants : but before I go to them, with your Lordships' permission, I will state shortly the facts of the case of Snee v. Prescot, with a few more observations upon it. The doctrine of stopping in transitu owes its origin to courts of equity ; and it is very material to observe, that in that case, as well as many others which have followed it at law, the question is not as the counsel for the defendants would make it, Whether the property vested under the bill of lading? for that was considered as being. clear ; but Whether, on the insolvency of the consignee, who had not paid for the goods, the consignor could countermand the consignment ; or, in other words, divest the property which was vested in the consignee ? Snee and Baxter, assignees of John Toilet v. Prescot and others, 1 Atk. 245. Toilet, a merchant in London, shipped to Ragueneau and Co., his factors at Leghorn, serges to sell, and to buy double the value in silks ; for which the factors were to pay half in ready money of their own, which ToUet wonjd repay by bills drawn on him. The silks were bought accordingly, and shipped on board Dawson's ship, marked T ; Dawson signed three bills of lading, to deliver at London to factors, consignors, or their order. The factors indorsed one bill of lading in blank, and sent it to Toilet, who filled up the same and pawned it. The bills drawn by the factors on Toilet were not paid, and Toilet became a bankrupt. The factors sent another bill of lading, properly indorsed, to Prescot, Wiho offered to pay the pawnee, but he refused to deliver up the bill of lading; on which Prescot got possession of the goods from Dawson, under the last bill of lading. The assignees of Toilet brought the bill to redeem by paying the pawnee out of the money arising by sale, and to have the rest of the produce paid to them : and that the factors, r*1261 ^■^*^'^°"S^ ™ possession of the goods, should be considered *as L J general creditors only, and be driven to come in under the com- mission. Decreed, 1st, That the factors should be paid; 2d, The pawnees; and, 3rd, The surplus to the assignees. The decree was just and right CONXaACTOPSALE. 87 in saying that the consignor, who never had been paid for the goods, and the pawnees, who had advanced money upon the goods, should both be paid out of the goods before the consignee or his assignees should derive any benefit from them. That was the whole of the decree : and if the circumstance of the consignor's interest being first provided for, be thought to have any weight, I answer, first. That such provision was founded on what is now admitted to be an apparent mistake of the law, in supposing that there was a difference between a full and a blank indorsement. Lord Hardwicke considered the legal property in that case to remain in the consignor, and therefore gave him the preference. Secondly, That whatever might be the law, the mere fact of the con- signor's being in possession, was a suflSoient reason for a court of equity to say, we will not take the possession from you till you have been paid what is due to you for the goods. Lord Hardwicke expressly said, this Court will not say, as the factors have re-seized the goods, that they shall be taken out of their hands till payment of the half price which they have laid down upon them. He who seeks equity must do equity; and if he will not, he must not expect relief from a court of equity. It is in vain for a man to say in that court, I have the law with me, unless he will show that he has equity with him also. If he mean to rely on the law of his case, he must go to a court of law; and so a court of equity will always tell him under those circumstances. The case of Snee V. Prescot is miserably reported in the printed book ; and it was the misfortune of Lord Hardwicke, and of the public in general, to have many of his determinations published in an incorrect and slovenly way : and perhaps, even he himself, by being very diffuse, has laid a founda- tion for doubts which otherwise would never have existed. I have quoted that case from a MS. note taken, as I collect, by Mr. John Cox, who was counsel in the cause ; and it seems to me that, on taking the whole of the case together, it is apparent that whatever might have been said on the law of the case in a *most elaborate opinion. Lord Hard- j-^, „_-, wioke decided on the equity alone arising out of all the particu- L J lar circumstances of it, without meaning to settle the principles of law on which the present case depends. In one part of his judgment he says, that in strictness of law, the property vested in Tollett at the time of the purchase : but however that may be, says he, this Court will not compel the factors to deliver the goods without being disbursed what they have laid out. He begins by saying, the demand is as harsh as can possibly come into a court of equity. And in another part of his judg- ment he says. Suppose the legal property in these goods was vested in the bankrupt, and that the assignees had recovered, yet this Court would not suffer them to take out execution for the whole value, but would oblige them to account. But further, as to the right of seizing or stop- ping the goods in transitu, I hold that no man who has not equity on his side can have that right. I will say with confidence, that no case or authority till the present judgment, can be produced to show that he has. But on the other hand, in a very able judgment delivered by my brother Ashhurst in the case of Lemprlere v. Pasley, in 1788, 2 T. R. 485, he laid it down as a clear principle, that, as between a person who 88 ROSS ON COMMERCIAL LAW. has an equitable lien, and a third person who purchases a thing for a valuable consideration and without notice, the prior equitable lien shall not overreach the title of the vendee. This is founded on plain and obvious reason ; for he who has bought a thing for a fair and valuable consideration, and without notice of any right or claim by any other person, instead of having equity against him, has equity in his favour: and if he have law and equity both with him, he' cannot be beat by a man who has equal equity only. Again, in a very solemn opinion deli- vered in this house by the learned and respectable Judge who has often had the honour of delivering the sentiments of the judges to your Lord- ships when you are pleased to require it, so lately as the 14th May, 1790, in the case of Kinloch v. Craig, 3 T. K. 787, it was laid down that the right of stopping goods in transitu never occurred but as between vendor and vendee ; for that he relied on the case of Wright v. Campbell, 4 Burr. 2050. Nothing remains in order to make that case r*:l9ST ^ direct and conclusive authority for the present, but to show L -I *that it is not the case of vendor and vendee. The terms ven- dor and vendee necessarily mean the two parties to a particular contract; those who deal together, and between whom there is a privity in the dis- position of the thing about which we are talking. If A. sell a horse to B. and afterwards sell him to C. and C. to D., and so on through the alphabet, each man who buys the horse is at the time of buying him a vendee ; but it would be strange to speak of A. and D. together as ven- dor and vendee ; for A. never sold to D. nor did D. ever buy of A. These terms are correlatives, and never have been applied, nor ever can be applied, in any other sense than to the persons who bought and sold to each other. The defendants, or Turing, in whose behalf, and under whose name and authority they have acted, never sold these goods to the plaintiffs; the plaintiffs never were the vendees of either of them. Neither do the plaintiffs (if I may be permitted to repeat again the for- cible words of the noble Judge who pronounced the judgment in ques- tion) represent Freeman so as to be answerable for his engagements, or stand affected by any notice of those circumstances which would bar the claim of Freeman or his assignees. These reasons, which I could not have expressed with equal clearness, without recurring to the words of the two great authorities by whom they were used, and to whom I always bow with reverence, in my humble judgment, put an end to all questions about the right of seizing in transitu. Two other cases were mentioned at the bar, which deserve some attention. One is the case of the assignees of Burghall v. Howard, 1 H. Blac. 365, n., before Lord Mansfield at Guildhall, in 1759 ; where the only point decided by Lord Mansfield was, that if a consignee become a bankrupt, and no part of the price of the goods be paid, the consignor may seize the goods before they come to the hands of the consignee or his assignees. This was most clearly right ; but it does not apply to the present case : for when he made use of the word assignees, he undoubtedly meant assignees under a commission of bankrupt, like those who were then before him, and not persons to whom the consignee sold the goods ; for in that case it is stated that no part of the price of the goods was paid. The whole CONTRACT OF SALE. 89 cause turns upon tliis point. In that case no part of the *price j-^, „g-. of the goods was paid, and therefore the original owner might L ■' seize the goods. Bat in this case the plaintiffs had paid the price of the goods, or were under acceptances for them, which is the same thing : and therefore the original owner could not seize them again. But the note of that case says. Lord Mansfield added, " and this was ruled, not upon principles of equity only, but the laws of property." Do these words fairly import that the property was not altered by a bill of lading, or by the indorsement of it? That the liberty of stopping goods in transitu is originally founded on principles of equity, and that it has, in the case before him, been adopted by the law, and that it does affect property, are all true ; and that is all that the words mean ; not that the property did not pass by the bill of lading. The commercial law of this country was never better understood, or more correctly administered than by that great man. It was under his fostering hand that the trade and the commercial law of this country grew to it-s present amazing size : and when we find him in other instances adopting the language and opinion of Lord C J. Holt, and saying, that since the cases before him it had always been held, that the delivery of a bill of lading transferred the property at law, and in the year 1767 deciding that very point, it does seem to me to be absolutely impossible to make a doubt of what was his opinion and meaning. All his determinations on the subject are uniform. Even the case of Savignac v. Cuff, of which we have no account, beside the loose and inaccurate note produced at the bar, cited in 2 Term Rep. 66, as I understand it, goes upon the same principle. The note states that the counsel for the plaintiff relied on the property passing by the bill of lading ; to which Lord Mansfield answered, the plaintiff has lost his lien, he standing in the place of the consignee. Lord Mansfield did not answer mercantile questions so : which, as stated, was no answer to the question made. But I think enough appears on that case to show the grounds of the decision, to make it consistent with the case of Wright and Campbell, and to prove it a material authority for the plaintiffs in this case. I collect from it that the plaintiff had notice by the letter of advice, that Lingham had not paid for the goods; and if so, then according to the case of Wright y. Campbell, *he ^^-. „ „-. could only stand in Lingham's place. But the necessity of L J recurring to the question of notice, strongly proves that if there had been no such notice, the plaintiff, who was the assignee of Lingham the consignee, would not have stood in Lingham's place, and the consignor could not have seized the goods in transitu: but that, having seized them, the plaintiff would have been entitled to recover the full value of them from him. This way of considering it makes that case a direct authority in point for the plaintiffs. There is another circumstance in that case material for consideration ; because it shows how far only the right of seizing in transitu extends, as between the consignor and con- signee. The plaintiff in that action was considered as the consignee ; the defendant, the consignor, had not received the full value for his goods; but the consignee had paid j6150 on account of them. Upon the insolvency of the consignee, the consignor seized the goods in tran- 90 BOSS ON COMMERCIAL LAW. situ; but that was holden not to be justifiable, and therefore there was a verdict against him. That was an action of trover, which could not have been sustained but on the ground that the property was vested in the consignee, and could not be seized in transitu as against him. If the legal property had remained in the consignor, what objection could be stated in a court of law to the consignor's taking his own goods ? But it was holden,- that he could not seize the goods ; which could only be on the ground contended for by Mr. Wallace, the counsel for the plain, tiff, that the property was in the consignee : but though the property were in the consignee, yet, as I stated to your Lordships in the outset, if the consignor had paid to the consignee all that he had advanced on account of the goods, the consignor would have had a right to the pos- session of the goods, even though they had got into the hands of the consignee ; and upon paying or tendering that money, and demanding the goods, the property would have revested in him, and he might have maintained trover for them : but admitting that the consignee had the legal property, and was therefore entitled to a verdict, still the question remained what damages he should recover; and in ascertaining them, re- gard was had to the true merits of the case, and the relative situation of each party. If the consignee had obtained the actual possession of r*T?n *''^^ goods, he would have had no other equitable claim on them L J than for £150. He was entitled to no more, the defendant was liable to pay no more ; and therefore the verdict was given for that sum. This case proceeded precisely upon the same principles as the case of Wiseman v. Vandeput; where, though it was determined that the legal property in the goods, before they arrived, was in the consignee, yet the Court of Chancery held that the consignee should not avail himself of that beyond what was due to him : but for what was due, the Court di- rected an account ; and if anything were due from the Italians to the Bonnells, that should be paid the plaintiffs. The plaintiffs in this cause are exactly in the situation of the plaintiffs in that case; for they have the legal property in the goods ; and, therefore, if anything be due to them, even in equity, that must be paid before any person can take the goods from them ; and ^6620 was due to them, and has not been paid, After these authorities, taking into consideration also that there is no case whatever in which it has been holden that goods can be stopped in transitu, after they have been sold and paid for, or money advanped upon them bona fide, and without notice, I do not conceive that the case is open to any arguments of policy or convenience ; but if it should be thought so, I beg leave to say, that in all mercantile transactions, one great point to be kept uniformly in view is, to make the circulation and negotiation of property as quick, as easy, and as certain as possible. If this judgment stand, no man will be safe either in buying or in lending money upon goods at sea. That species of property will be locked up ; and many a man, who could support himself with honour and credit, if he could dispose of such property to supply a preserit occasiou, would re- ceive a check, which industry, caution, or attention could not surmount. If the goods are in all cases to be liable to the original owner for the price, what is there to be bought ? There is nothing but the chance of CONTRACT OP SALE. 91 tho market; and that the buyer expects as his profit on purchasing the goods, without paying an extra price for it : but Turing has transferred tho property to Freeman, in order that he might transfer it again, and has given him credit for the value of the goods. Freeman having trans- ferred the goods again for value, I am of opinion that Turing r:(;io9-i •had neither property, lien, nor a right to seize in transitu. The <- -■ great advantage which this country possesses over most, if not all other parts of tho known world, in point of foreign trade, consists in the ex- tent of credit given on exports, and the ready advances made on im- ports : but amidst all these indulgences, the wise merchant is not un- mindful of his true interests and the security of his capital. I will beg leave to state, in as few words as possible, what is a very frequent occur- rence in the city of London : — A cargo of goods of the value of £2000 is consigned to a merchant in London; and the moment they are shipped, the merchant abroad draws upon his correspondent here to the value of that cargo ; and by the first post or ship he sends him advice, and in- closes the bill of lading. The bills, in most cases, arrive before the cargo; and then tho merchant in London must resolve what part he will take. If he accept the bills, he becomes absolutely and unconditionally liable; if he refuse them, he disgraces his correspondent, and loses his custom directly. Yet to engage for £2000 without any security from the drawer, is a bold measure. The goods may be lost at sea; and then the merchant here is left to recover his money against the drawer as and when he may. The question then with tho merchant is, How can I secure myself at all events ? The answer is, I will insure ; and then if the goods come safe, I shall be repaid out of them ; or if they be lost, I shall be repaid by the underwriters on the policy : but this cannot be done unless the property vest in him by the bill of lading; for other- wise his policy^ will be void for want of interest ; and an insurance, in the name of the foreign merchant, would not answer the purpose. This is the case of the merchant who is wealthy, and has the £2000 in his banker's hands, which he can part with, and not find any inconvenience in so doing : but there is another case to be considered, viz.. Suppose the merchant here has not got the £2000, and cannot raise it before he has sold the goods ? — the same considerations arise in his mind as in the former case, with this additional circumstance, that the money must be procured before the bills become due. Then the question is. How can that be done ? If he have the property in the goods, he can go to market with the bill of lading and the policy, as was done in Snee and Pres- oot; and *upon that idea, he has hitherto had no difficulty in r*-iqq-i doing so ; but if he have not the property, nobody will buy of L J him ; and then his trade is undone. But there is still a third case to be considered ; for even the wary and opulent merchant often wishes to sell his goods whilst they are at sea. I will put the case, by way of example, — That barilla is shipped for a merchant here, at a time when there has been a dearth of that commodity, andi^it produces a profit of £25 per cent., whereas, upon an average, it does not produce above £12. The merchant has advices that there is a great quantity of that article in Spain, intended for the British market; and when that arrives the 92 EOSS ON COMMERCIAL LAW. market will be glutted, and the commodity much reduced in value. He wishes, therefore, to sell it immediately whilst it is at sea, and before it arrives • and the profit which be gets by that is fair and honourable ; but he cannot do it if he have not the property by the bill of lading. Besides, a quick circulation is the life and soul of trade ; and if the mer- chant cannot sell with safety to the buyer, that must necessarily be retarded, From the little experience which I acquired on this subject at Guildhall I am confident that, if the goods in question be retained from the plain tifi' without repaying him what he has advanced on the credit of them it will be mischievous to the trade and commerce of this country : and it seems to me that not only commercial interests, but plain justice and public policy forbid it. To sum up the whole in very few words : The legal property was in the plaintiff; the right of seizing ii\^transitu is founded on equity. No case in equity has ever suffered a man to seize goods iu opposition to one who has obtained a legal title, and has advanced money upon them j but Lord Hardwicke's. opinion was clearly against it : and the law, where it adopts the reasoning and principle of a court of equity, never has and never ought to exceed the bounds of equity itself. I offer to your Lordships, as my humble opinion, that the evidence given by the plaintiff, and confessed by the demurrer, is sufficient in law to main- tain the action. AsHHURST and Grose, Justices, also delivered their opinions for re- versing the judgment of the Exchequer Chamber. r*1 ^4.1 *EYaE, 0. J. Gould, J. Heath, J. Hotham, B. Pertjyn, L -I and B. Thomson, B. contra. A venire facias de novo having been awarded, a special verdict was found upon the second trial, containing in substance the same facts as found at the first trial, with this addition, that the jury found that by the cus- tom of merchants, bills of lading for the delivery of goods to the order of the shipper or his assigns, are, after the shipment and before the voyage performed, negotiable and transferable by the shippers indorsement and delivery, or the transmitting of the same to any other person ; and that by such indorsement and delivery, or transmission, the property in such goods is transferred to such other person. And that by the custom of merchants, indorsements of bills of lading in blank may be filled up by the person to whom they are delivered or transmitted, with w ords order- ing the delivery of the goods to be made to such person, and, according to the practice of merchants, the same when filled up, have the same operation and effect as if it had been done by the shipper. On this special verdict the Court of B. R., unders tanding that the case was to be carried up to the House of Lords, declined entering into a discussion of it, merely saying that they still retained the opinion de- livered on the former case. And they accordingly gave judgment for the plaintiff. CONTEAOTOFSALE. 93 II.— SALOMONS V. NI8SEN. Not. 14, 1Y88.— B. 2 T. R. 61i. Trover for 705 pigs of lead, tried at the sittings at Guildhall, before BuUer, J. ; verdict for the plaintiff £1000, subject to the opinion of this Court on the following case ; — Edward Hague bought 705 pigs of lead of the defendants in Liver- pool on the 1st of March, 1787, and ordered them to be shipped to Kouen in France. The lead was of the value of £1000. The said lead was accordingly shipped on the 10th of *Maroh, 1787, by the defend- j-^, „,-. ants at Chester, on board the Jane ; and the bill of lading was L J indorsed by the defendants in blank, and sent to Edward Hague. The plaintiff on the 16th of March, 1787, gave Hague his acceptances for £700, as stated in the following note ; upon which Hague delivered the bill of lading to the plaintiff : — " London, IQth of March, 1787 Whereas Jonas Salomons has this day accepted for us the sum of £700 at two months, on account of a cargo of lead sent to Eouen, we hereby promise, in case the said lead is not remitted for by the time these bills fall due, they shall be renewed for two months longer. Charles and Edward Hague." The acceptances were paid by the plaintiff when due to the indorsees of these acceptances. On the 21st of March, 1787, the following agreement was made between Edward Hague (who traded under the firm of Charles and Edward Hague) and the plaintiff: — "Be it known that it is this day agreed between Edward Hague of, &c., tra- ding under the firm of Charles and Edward Hague, of the one part, and Jonas Salomons of the other part, as follows ; that the said Jonas Salo- mons should pay for and send in his name to Messrs. Robert G-arvey and Co., merchants at Bouen, a cargo consisting of seven hundred and five pigs of lead, to be shipped at Chester on board the Jane, bound to Bouen, to be sold by Messrs. Robert Garvey and Co. at the best price and prices that can be obtained for the same ; and the net proceeds to be remitted to the said Jonas Salomons. And it is hereby agreed be- tween the said parties that the profit and loss arising from the said cargo of lead shall be equally divided between the said Edward Hague and Jonas Salomons. And the said Edward doth hereby promise and agree to and with the said Jonas Salomons, that in case the said cargo of lead is sold at Eouen by the said Eobert Garvey and Company upon credit, that then and in such case the said Robert Garvey and Co. shall stand del credere for the purchasers ; and that he the said Edward Hague shall and will stand guarantee to the said Jonas Salomons for the solidity of the said house of trade of Robert Garvey and Co., and the due pay- ment by them of the proceeds of the said cargo of lead ; and, lastly, it is agreed that the said cargo of lead shall be insured by the said Ed- ward Hauge, or by the said Jonas *Salomons, to the amount of r«iQgT £1100; and that the policy of insurance shall be and remain in L -■ the hands and possession of the said Jonas Salomons, for him to recover and receive such loss and losses as may arise upon the said cargo of lead, and should be recoverable from the underwriters of such policy ; and January, 1855. — 7 94 ROSS ON COMMEEOIAL LAW. that he the said Jonas Salomons shalLand will account with the said Edward Hague for the moneys so recovered upon the policy, in case of loss as aforesaid. The vessel sailed with the lead for Eouen in March, 1787, but was forced back by stress of weather to Chester; and Edward Hague having become a bankrupt, and the defendants not having re- ceived the price of the said goods, the defendants on that account, on or about the 5th of April, stopped the said goods while they were on board the ship in England, and took them away. The goods were never paid for by Hague or any other person. On the 25th of May, Jonas Salo- mons demanded the 705 pigs of lead of the defendants, who refused to deliver them, and converted them to their own use. JDauncey, for the Plaintiff. — The general question is only how far the assignment of a bill of lading by the original consignee to a third per- son is a transfer of the property against the original consignor. As to which the case of Lickbarrow and Mason is in point; and is a direct authority to show that an assignment of a bill of lading by the original consignee, for a valuable consideration, where the transaction is bona fide, is a complete transfer of the property, and divests the right of the con- signor to stop the goods in transitu in any event. It may perhaps be argued on the part of the defendants, that the agreement between the plaintiff and Hague amounts to a partnership between them, and there- fore that the question will remain the same between the plaintiff and the defendants, as between them and the original consignee. But, first, that agreement does not amount to a partnership ; or, secondly, if it do, it is not of such a nature as to enable the defendants under the circum- stances to retain possession of the goods against the plaintiff. As to the first, there is no ground for contending that there was any general partnership betweeli the plaintiff and Hague ; and though indeed there rit-ion-i ™ay l^e a partnership *subsisting for a particular purpose, ac- L J cording to Willett v. Chambers, Cowp. 814, yet that will not apply to the present case. In Hoare v. Dawes, Dougl. 356, it was held, that in order to make a man answerable as partner with another, there must either be a contract between him and the ostensible person to share jointly in the profits and loss; or he must have permitted the other to make use of his credit, and to hold him out to the world as one jointly answerable with himself. But there i^ no pretence for considering this as a dormant partnership ; neither has credit been obtained by any false representation. If the agreement had stopped at the division of the profits, it could not have been contended that as for this purpose at least there was no partnership : but then it proceeds to state that Hague shall stand guarantee to the plaintiff for the solidity of the house of Garvey and Co. ; this was no private or concealed covenant between the par- ties^ purposely omitted in the articles of partnership in order to gain a false credit, which would have rendered the plaintiff liable on account of the other ground, but it makes a part of the original agreement itself, and is equally notorious. This agreement is an entire contract, and must be construed all together; and then there is one case where the parties are not to share jointly, which is destructive of the principle of partnership. Secondly, if it be considered as a partnership, yet it was CONTRACT OF SALE. 95 not of such a nature as will justify the detention of these goods by the defendants, upon the ground of being at liberty to stop them in transitu as against Hague. It is necessary to consider the situation of the par- ties, and the dates of the different transactions. The goods were bought of the defendants by Hague only on the 1st March, 1787 ; the bill of lading was signed on the 10th ; and on the 16th of the same month it was assigned to the plaintiff for a valuable consideration, whereby the right of the consignor was divested, and continued so from the 16th to the 21st, when the agreement was entered into. So that at all events there was a period of five days during which the defendants had no right to retake the goods. Thus far the case falls exactly within the principle of Lickbarrow v. Mason. Then the agreement which is stated will not vary it : that was only for a resale of the goods, which it appears were once absolutely vested in the plaintiff ; and *must be con- p^, „„-, sidered as entirely distinct from the transfer of the property to L J him on the 16th. Taking that to be so, it must not only be contended that that agreement revives a right in the consignor who is no party to it, which was onoe clearly divested, but that it also creates a right, against the plaintiff which never before existed. But in order to give the defendants a right to re-take the goods as against the plaintiff, they should have considered him as jointly interested in them, and that they were sold on the joint credit of him and Hague. But there is no pre- tence for saying that the partnership existed at the time when the goods were assigned to the plaintiff for a valuable consideration, much less when they were originally consigned to Hague. Besides, in case the goods had reached the plaintiff's hands, to say that the defendants would have had a right to recover the value of them, would be to raise an asmmpsit by an ex post facto private agreement between others than the original parties to the contract ; for there is no colour to say that the plaintiff was originally interested in the contract. Nor can the part- nership agreement have relation to the original contract ; as that would be to divest a legal right by relation, which is never permitted. 18 Vin. Abr. 285. The doctrine of relation only extends to the same thing and the same parties. But if it hold as for the defendants, it must equally be taken in favour of the plaintiff. Then as insolvency in the consignee is the only ground for stopping goods in transitu, the defendants had no right to detain them in this q^se, where the plaintiff is not stated to be insolvent. Here the loss must at any rate fall on one of two innocent individu- als ; and the language of the Court on such occasions has always been, that where one of two innocent persons must suffer by the act of a third party, the loss shall fall upon upon him who enabled that third person to impose upon the other. Now, here the the bill of lading was indorsed in blank to Hague, who therefore transferred the goods to the plaintiff for a valuable consideration, by the authority of the consignors ; they then must sustain the loss. Wood, for the Defendants, observed, that this was very distinguish- able from the case of Lickbarrow and Mason : that case only deter- mined that the indorsee of a bill of lading, who *had paid a p^. „.^ valuable consideration for the indorsement, and had received it L -l- 96 ROSS ON OOMMEROIAL LAW. without notice, had a right to retain the goods as against the consignor. But that case so far governs this, that as between Hague and the defen- dants they would clearly, according to the principles there laid down, have been justified in stopping the goods in transitu. And the question here is, Whether the plaintiff's right is in this respect different from that of Hague's ? Hague, on the 1st of March, ordered the goods in question, and the bill of lading was sent on the 10th ; on the 16th he borrowed the plaintiff's acceptances of ^6700 for two months : that sum was borrowed with reference to the cargo mentioned in the bill of lading, but it was not to be paid till the arrival of the cargo. This was there- fore a loan to Hague to induce him to admit the plaintiff into partner- ship in this transaction : and by the subsequent part of the agreement it manifestly appears that the goods then remained unpaid for within the plaintiff's knowledge, for it says that the plaintiff " shall pay for them." By that agreement also he became partner with Hague for this particular purpose j consequently he is subject to the same equity as his partner the original consignee was ; he has adopted his acts, and stands in his place. In the case of Wright v. Campbell, 4 Burr. 2046, 2050, it was held that if a factor pays over a bill of lading with notice to a third person, then it may be followed into the hands of such third person by the consignor. The same principle was adopted in Savignac V. Cuff, which is cited in Lickbarrow v. Mason. There Salvetti assigned the goods to Lingham in England, and sent him bills of lading indorsed in blank, who indorsed them to Savignac for a valuable consideration, showing him at the same time the letter of advice and the bill of par- cels, by which it appeared that the goods had not been paid for. And it was held, that the assignee of the bill of lading should be bound by such notice : and the original consignee having become insolvent, the right of the consignor to re-take the goods in transitu was acknow- ledged. By a parity of reasoning, therefore, the plaintiff having had notice that these goods were not paid for, shall be bound by such know- ledge, and precluded from recovering the value against the defendants, they not having received a valuable consideration for them. r*1401 *^a«wcey, in Reply. — ^It is not stated that the plaintiff took L -I the assignment of the bill of lading with.potice that the goods had not been paid for ; and it has only been attempted to be inferred from the agreement. But it appears by the caM that the acceptances were given on the 16th of March, when the bill of lading was indorsed over ; 'and it was not till the 2l8t that he had notice by the agreement that they were not paid for. However, that makes no difference. The assignee is not to look at any private transaction between the original parties ; he trusts to the bill of lading, which in its nature is a nego- tiable instrnment ; and it was upon the faith of that that he actually paid a consideration. This money could not be said to be paid in order to become a partner, for the acceptances were given before the agreement, so that the goods might be said to have been already bought at that time. In Wright v. Campbell, the goods had been sent to the factor of the consignor, who ha^ not given him any right to assign them : but here the vendor gave the vendee an absolute disposition over the goods ; OONTEA0TOF8ALE. 97 and there too the indorsee had not actually advanced any money or other consideration, as was the case here. If the defendants have any claim, at most it only amounts to an equitable one ; but the plaintiff has only an equitable lien on the goods for the amount of the £700, and the equity of the one may be set off against the equity of the other. Lord Kenyon, C. J This appears to be a harsh demand against these defendants, who it is confessed have not received the value of the goods in question. The first case on this subject is that of Snee and Prescot, 1 Atk. 245, before Lord Hardwicke, who was of opinion, that where a merchant has sold goods which have not in fact been delivered nor paid for, he may, while they are in transitu, obtain the possession of them again by any means short of absolute violence. But the case of Liokbarrow v. Mason has in my mind very properly narrowed the extent of that doctrine : that case was decided on principles of policy and common honesty j it was there said that if the- goods come into the hands of a third person for a valuable consideration, bona fide, and without notice, he shall not be prejudiced, because the consignor was so incautious as *to trust the goods out of his possession without ruciji-i payment. But this case is widely different from that of Lick- L J barrow and Mason, and is virtually the case of Snee and Prescot. It was ingeniously put by the plaintiff's counsel that there was an interval of five days, in which the plaintiff in this cause must be considered as the purchaser of these goods for a valuable consideration, without notice, under a title which was indefeasible : if the fact were so, to be sure the consequences which he stated would necessarily have followed. But during that interval the plaintiff was not in such a situation ; he had not then paid for the goods ; and then he stood in the situation of the holder of the bill of lading without having paid for the goods, when, according to the opinion of Lord Hardwicke in the case of Snee and Prescot, he had no right to them as against the original consignor. On this ground, therefore, I am of opinion that the case of Lickbarrow and Mason is not shaken by this determination : but, on the very ground on which that case was decided, I think that the defendants in this case had a right to detain these goods. AsHHURST, J. — Although in general the consignor of goods is entitled to stop them in transitu in case of the insolvency of the con- signee, if he has not been paid for them, yet that rule does not hold in the case of an assignme'nt of the bill of lading to a third person for a valuable consideratioin/ without notice j because the possession of the bill of lading by the consignee makes him the visible owner of the goods, and would enable him to commit a fraud on a third person : such was the case of Lickbarrow and Mason. But it seems to me that there are particular circumstances in this case which distinguish it from that ; because it appears upon the contract made on the 21st of March, that the plaintiff made himself a complete partner with Hague, quoad this transaction. And he not only made himself a partner, but by the terms of the contract he made himself the paymaster ; therefore he put himself in the place of the original consignee, and must take the bill of lading subject to the same rights. That being the case, it follows as 98 ROSSONOOMMJfiROIAIiLAW. a necessary consequence that the defendants had a right to stop the goods in transitu. And it would be a very hard case if he had not *that power; for the plaintiff has not in fact been deceived ; L J since though Hague acted as the visible owner, yet it appears on the agreement that he had not paid for them. BuLLER, J. — It has been uniformly laid down in this Court, as far back as we can remember, that good faith is the basis of all mercantile transactions : and therefore it is material in questions of this kind to consider whether the purchaser has acted fairly and honestly, or with a design to deceive and defraud. The first case on this subject is that of Snee and Preacot, and that has never been impeached in the smallest degree ; but, on the contrary, it has always been mentioned by the Court with approbation. But still it is to be remembered that that case only relates to a transaction between the buyer and seller of the goods ;,;. and in the ease of Liekbarrow and Mason, it never was the intention of the Court to use a single expression that could impeach that authority. If the transaction be between the buyer and seller of the goods, and the former has not paid for them, the latter has a right to stop them in transitu, in case of the insolvency of the other. The case of Snee and Presoot went no farther than that ; but in Liekbarrow and Mason, and some other cases, the Court has been obliged to consider, whether in conscience that rule ought to be extended to other parties ; and they have held that it ought not, because it would put it in the power of the consignor to enable the consignee to cheat an innocent third person. He who contracts on the faith and credit of the bill of lading, shall not be divested of his right. But still the criterion is, Does the purchaser take it fairly and honestly ? On that principle the case of Wright and Campbell turned ; there the Court thought there was abundance of evidence to be left to a jury to show that the party who took the bill of lading had full notice that the goods had not been paid for. That cir- cumstance had slipped the attention of the learned Judge who first tried the cause ; but on a motion for a new trial, the Court thought that they saw reason to suspect fraud between the JFactor and the third per- son to cheat the real owner of the goods. So in this case, if the plain- tiff knew at the time that Hague had never paid for the goods, it was r*1431 ^^ agreement between *those two to obtain possession of the i 4 goods without paying for them. And the fact of the plaintiff's knowledge appears on the face of the agreement itself, for he there agrees to pay for them himself. But there is still another ground which would prevent the plaintiff's recovering in this action ; for there is no doubt but that under this agreement the plaintiff and Hague were partners, and then the plaintiff could not recover in this form of action. That is like a case which I argued here many years ago of Fox and Hanbury, Cowp. 445, where it was held that if one partner became a bankrupt, and the other partner afterwards disposed of the goods, and he then became a bankrupt, the assignees of both under a joint com- mission could not bring trover against the vendee of such partnership effects. Now that applies to the present case. And on both grounds I am of opinion that thepostea must be delivered to the defendants. CONTRACT OP SALE. 99 Grose, J It never was my intention, in the case of Liokbarrow and Mason, to throw the least doubt on that of Snee and Presoot, and other cases, which have held that the consignor of goods may obtaia the pos- session of them before they reach the consignee, who becomes insolvent before payment. But in Lickbarrow and Mason a third person inter- vened. There a fair and bona fide purchaser of the goods under a bill of lading diflFered that case from the others, which were only between the original parties. The only ground on which this case can be sup- ported is by likening it to that of Lickbarrow and Mason ; but I think it is totally unlike. I agree with the counsel for the defendants in con- sidering the money paid by the plaintiff to Hague, as in reality a loan to permit the plaintiff to enter into partnership with him : if so, the plaintiff must stand in the situation of Hague, who knew the whole transaction, and that the goods were not paid for, and so it comes within the principle of Snee v. Prescot, The agreement also shows that the plaintiff himself knew that the goods were not paid for, and that he actually agreed to pay for them j so that he stands precisely in the same situation as the original purchaser of the goods. I agree also with my brother Buller on the last point : the plain intention of that agreement was, that *the plaintiff and Hague should become partners in r,|t 144^-1 the goods, and then one partner could not recover those goods L -^ which the other could not. Postea to the defendants. 1. A consignor's right of stoppage m transitu will not be defeated by a trang- fereuce of the bill of lading to a third party, unless that party has acted in bona fide. If, for instance, he knew that the consignee was insolvent, and so assisted to deprive the consignor of the price of the goods, he will be held to stand in the same situation as the consignee, and the consignor will not in such a case be deprived of his right to stop in transitu. If, however, the bill of lading be trans- ferred by the consignee to another, bona fide, for a valuable consideration, and without coUnsion with the consignee, the transference will be effectual although the transferee knew at the time that the consignor had not received payment for his goods, but had taken the consignee's acceptance, payable at a future day not then arrived. It was in such circumstances that the indorsation of a bill of lading was made in the case of Cuming v. Brown. At the trial Lord Ellenborough observed, " The effect of the indorsement of a bill of lading, where the indorsee is holder for value, and without notice of any circumstance to prevent him from bona fide accepting of it, is to vest in him an uncountermandable authority to receive the goods. The bill of lading does not pass the property, but the right to the possession of it. We have to see, then, whether this indorsement be bona fide, for a valuable consideration, and without notice of any circumstance which should have induced the plaintiff to decline being concerned in the transaction. On the 20th December, 1806, Jeans draws a bill for £538 on account of the brandies, which is accepted by Main. I should have great difficulty in saying, that, under these circumstances, an indorsement of the bill of lading for a valu- able consideration was a nullity. I should shake the security of mercantile transactions, were I to decide that no right passes to the indorsee, unless the consignor has been previously paid for the goods in moneys numbered. The consignee had hero given a negotiable obligation to pay. This was a valuable consideration, though not strictly a payment. When the plaintiff says in his answer, that he was aware the goods were not paid for, he only *means rxi/g-i he knew the bills were not then actually satisfied. If he knew that Main's '■ ■' acceptances were mere moonshine, then he could not lawfully intervene to bar the consignor's right of stopping in transitu. But he had notice of nothing to 100 EOSS ON OOMMEROIAIi LAW. preclude him from taking the indorsement, if ignorant of Main's impending insol- vencv he only knew that, instead of a cash payment, bills, which were then run- ning, had been accepted for the value of the goods." His Lordship concluded by leaving three questions to the jury. 1st, Was the transaction bona fide, and not with intent to defraud the consignor? 2dly, Did the plaintiff give a valuable consideration for the indorsement of the bill of lading, both as to the wines and brandies ? 3dly, Had he notice of any circumstance to preclude him from accept, ing of the indorsement ? 2. A rule for a new trial having been obtained, it was afterwards discharged. Lord BUenborough, in delivering the judgment of the Court, 9 East, 512, observed, " The question is, "Whether the indorsement of the bill of lading in this case passed the property of the goods, the plaintiff having notice that the goods had not been paid for in money ? It must be taken to have been found that the indorsement was bona fide, for valuable consideration, and without notice pf any circumstance which ought in fairness to have prevented the plaintiffs taking itj unless, indeed, notice that the goods had not been paid for in money be such circumstance. But to render this circumstance one which ought_ in fairness to have prevented the assignee of the bill of lading from taking it, it should have appeared that the consignor by the terms of his dealing with theconsignee had bargained for or expected that the payment should precede the assignment of the bill of lading. But if we look at the actual facts of the case, a,s between the con- signor and consignee, by the memorandum at the foot of the invoice transmitted before the bill of lading (and which arrived on the 3d of January, 1806), the price of the goods was 'payable in bill on London at three months from 20th December;' and at the time of the assignment, Main, the consignee, had done all that such bargain required, by having accepted a bill on London at three months from the 20th of December, which was not due at the time of the indorsement of the bill of lading on the 23d of February. If therefore the plaintiff had known all the circumstances of the case as they stood between consignor and consignee, he would have known nothing which should have made it unfair in the consignee to assign, or in himself to accept, the assignment of the bill of lading. If he had assisted in contravening the actual terms of sale on the part of the consignor, or his reasonable expectations arising out of them, or his rights connected therewith, it would have been otherwise, and he would in that case have stood in the same r*14fil *situation with the consignee. If, for instance, he had known that the L -I consignee had been in insolvent circumstances, and that no bill had been accepted by him for the price of the goods, or that, being accepted, it was not likely to be paid ; in that case, the interposition of himself between the consignor and consignee, in order to assist the latter to disappoint the just rights and expec- tations of the former, would have been an act done in fraud of the consignor's right to stop in transitu, and would therefore have been unavailable to the party taking an assignment of the bill of lading under such circumstances, and for such purpose ; but here, any knowledge or suspicion of the kind on the part of the plaintiff is negatived expressly by the plaintiff's answer read on the- part of the defendant. And if a bill of lading should be held by us not assignable under these circumstances, the consequence would be that no bill of lading could be deemed safely assignable before the goods arrived, unless the assignee of the bill of lading was perfectly assured that the goods were paid for in money, or paid for in account between the parties, which is the same thing : a position which would tend to overturn the general practice and course of dealing of the commer- cial world on this subject, and which is warranted, as we conceive, by no decided case upon the subject. The case of Salomons v. Nissen, 2 Term. Rep. 674, was a case of fraud on the part of the plaintiff, who had taken an assignment from the vendee, not only knowing the goods were not paid for, but by his own agreement taking upon himself personally the immediate duty of paying for them : and ho afterwards brought his action to take the goods out of the hands of the defendant, the vendor, without having paid for them, in fraud of the terms of his own express agreement with the original vendee, with whom he had become partner in profit and loss as to these goods, and with whom he had expressly contracted that he would himself pay for them. _ This case, therefore, being a case of express fraud and mala fides, affords no principle to govern the present case, in which the absence of fraud and mala fides is found. The doubt which has been thrown on this subject has arisen principally from the words, 'without notice,' which are to be found in the case of Salomons v. Nissen, and other cases on the subject But we think that, according to the general scope and meaning of the passages in the opinions of the Judges where this expression occurs, it is not to be under- stood in the restrained sense contended for; viz., ' without notice that the goods had not been paid for;' but, 'without notice of such circumstances as rendered the bill of lading not fairly and honestly assignable.' The criterion being, ac- cording to Mr. Justice BuUer in that case, Does the purchaser take it fairly and honestly? And so understanding such *expression, or at any rate so r#i4.i7-| understanding the rule of law on the subject, we think that in this case '- ■' no circumstance appears to have existed at the time of the assignment of this bill of lading which should have prevented the plaintiff from taking it, or which should now render it not available in his hands. We are of opinion, therefore, that the rule for a new trial in this case should be discharged." 3. In order also to defeat the right of a consignor to stop in transitu, the bill of lading must have been transferred for a valuable consideration. In Coxe T. Harden, 4 East, 216, Lord Ellenborough observed, — "No decision of a court of law upon the subject of bills of lading, has gone farther than to say that the consignment of a bill of lading by the consignees for a valuable consideration, and without notice by thp party taking it of a better title, passes the property in the goods thereby consigned. But no consideration having been paid by the plaintififs in this case for such assignment, they took the bill of lading merely as agents for Browne and Co., and without property in themselves in the goods. The analogy between bills of lading and bills of exchange has been pushed in the argument beyond all warrant of authority; but I agree to the extent of the doctrine in the case of Lickbarrow v. Mason, that an indorsement of a bill of lading for a valuable consideration, and without notice by the indorser of a better title, passes the pro- perty." 4. The case of Waring v. Oox, 1 Campb. 369, was an action of assumpsit by the plaintiff as indorsee of a bill of lading. It was objected for the defendant that the action could not be maintained by the plaintiff, because being an indorsee without value, he had no property in the goods. On the part of the plaintiff it was contended, that as indbrsee of the bill of lading, he must be taken to have the legal property in the goods. Lord Ellenborough observed, — " I am decidedly of opinion that without value he has not. No case has gone so far as to decide that a bill of lading is transferable like a bill of exchange, and that the mere signature of the person entitled to the delivery of the goods prima facie, passes the property in them to the indorsee. There must be value upon Ijie indorsement of a bill of lading, or no property in the goods is thereby transferred." 5. If any condition be adjected in the bill of lading, or to the indorsation of it, the party to whom it is transferred takes it subject to that condition. In the case of Barrow v. Coles, 3 Campb. 92, the consignors drew a bill of exchange upon a party in London, payable to their own order, and indorsed it to the plaintiff, at the same time annexing to it a bill of lading with an indorsement upon it, making the goods deliverable to the party in London, if he should accept and pay the draft, but if not, to the holder of the draft. The bill of exchange and bill of lading being sent to the party in London, he r^j^o-i accepted the former, and *detached the latter from it. He then indorsed L J the bill of lading for a valuable consideration to the defendant, but he did not pay the bill of exchange. Lord Ellenborough held, that the special indorsement on the bill of lading ought to have made the defendant inquire whether the condition on which the goods were deliverable to the party in London had been fulfilled, and after the dishonour of the bill of exchange, the property in the goods vested in the holder of the bill. 6. Where goods are shipped without orders, and the bill of lading is made out in favour of a party, the consignor may alter the bill of lading and direct the goods to be delivered to any party. In Mitchell v. Bde, 11 Ad. & Ell. 903, Lord Denman delivered the judgment of the Court, and in reference to the nature and operation of a bill of lading, observed, — " It has become necessary to consider the effect of the bill of lading. . This, it was contended in argument, was a contract between the owner of the sugar of the one part, and the defendants, (in whose favour the bill of lading was made out,) by their alleged agent, the captain, on the other, and by virtue thereof, that the property passed absolutely to the defendants upon the signing of the bill of lading by the captain. We think, however, that this argu- ment proceeds upon a misconstruction of the nature and operation of the bill of lading. As between the owner and shipper of the goods and the captain, it fixes 102 ROSS ON OOMMEBOIAL LAW. and determines the duty of the latter as to the person to whom it is (at the time) the pleasure of the former that the goods sUould be delivered. But there is nothing final or irrevocable in its nature. The owner of the goods may change his purpose at any rate before the delivery of the goods themselves, or of the bill of lading to the party named in it, and may order the delivery to be to some other person, to B. instead of A. This therefore being, as we think it is, the true construction of the bill of lading and its effect, it is in our opinion conclusive against the argu- ment that the property in the sugar was vested in the defendants by the captain's signature of it. Until the bill of ladin'g is transferred by the owners of the goods to a third party, or until the goods themselves are delivered to the party named in the bill, the owner is entitled to alter the destination." 1. Where, however, goods have been shipped in consequence of orders received, the seller is functus officio, and cannot alter the bill of lading, except in the event of the insolvency of the consignee. In the case of The Oonstantia, 6 Eob. 324, Lord Stowel observed, — " What the law of this country is on the power of the consignor to stop in transitu, and also what the tendency of the civil law was, is very perspicuously stated by Mr. Abbott, in his treatise on the law of shipping. With respect to the introduction of the principle into the law of this country, he r*1491 s^y^i^^' ^"* ^5 '° ^^^ "^^^ °f * consignment *on credit, it often happens L •'■*°J that the consignor learns, after the shipment, that the consignee has be- come a bankrupt or failed, and consequently, by a delivery to him or his assignees, the whole or the greater part of the value of the goods will be lost, the law, in order to prevent this mischief in such cases, allows the consignor of goods sent by a general ship, or by a ship chartered by him, to stop the goods in transitu on their passage to the consignee ; and before, or at their arrival at the place of destina- tion, to cause them to be delivered to himself, or to some other person for him. This rule of the law of England was first established in the Court of Chancery, and has been since frequently carried into effect.' This is the doctrine of the law of England, and I may add also the general expression of the mercantile law on the subject ; because I take it to be the rule, that when a vessel is chartered by the consignor, and goods are put on board, those goods are considered as in tran- situ, and when the consignor has not received payment, he has aright to stop and divert the delivery of those goods, and has what Lord Mansfield calls a proprietary lien upon them ; a privilege recognized by the general law, as well as by our own ; more especially by the French law, which is of the most importance in this case _ of a French transaction, wjiich allows the vendeur pnmitif, as he is termed, to pro- tect himself against non-payment by the seizure of the goods. The revocation in this transaction was not explained, but was expressed in absolute terms ; and I am clearly of opinion, that if Mr. Kye had been an insolvent person, it would have amounted to a complete and effective revendication of the goods. But if the per- son to whom they are consigned is not insolvent; if, from misinformation or from excess of caution, the vendor has exercised this privilege prematurely, he has as- sumed a right that did not belong to him, and the consignee will be entitled to the delivery of the goods, with an indemnification forthe expenses that may have been incurred. In the law of England, as far as I can collect it, and in all books into which I have looked, it is not an unlimited power that is vested in the consignor, to vary the consignment at his pleasure in all. cases whatever. It is a privilege aJlowed to the seller, for the particular purpose of protecting him against the in- solvency of the consignee. Certainly it is not necessary that the person should be actually insolvent at the time. If the insolvency happens before the arrival, it would be sufiicient, I conceive, to justify what has been done, and to entitle the shipper to the benefit of his own provisional caution. But if the person is not insolvent, the ground is not laid on which alone such a privilege is founded. Then, if Mr. Kye has proved insolvent, the shipper will have exercised his privi- lege. But if he is not insolvent, and has actually provided for the payment r*1501 °^*^ goods, he will be entitled to the *delivery,- unless it can be shown J- J that the right of the shipper extends farther than I have stated it, and that it amounts to an unlimited right to vary the consignment at pleasure. Where goods are shipped without orders, such a right exists. The seller, if he may be so de- scribed, retains an absolute power over them, for there is no purchase. But when orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading signed, the seller is functus officio, except in the pe- culiar case in which he is again reinstated by the privileges of the vendeur primUif. That will make it a matter of fundament importance, that the letters containing CONTRACT OF SALE. 103 the original order should be produced. The mercantile law I take to be clear and distinct, that the seller has not a right to vary the consignment, except in the case above stated. The mischief and inconvenience that would ensue on a contrary supposition are extreme. The goods might be put on board, and might lie at thJe risk of the consignee for two or three months: and if the consignor could come, affld resume them at pleasure, it would place the consignee in a situation of great disadvantage, that he should be exposed to the risk during such a length of time, for an object which might be eventually defeated, at any moment, by the capricious or interested change of intention in the breast of the consignor. It would be to expose, the consignee altogether to the mercy of the seller." 8. Where a bill of lading is assigned, not absolutely but in security of a debt, the seller's right of stoppage in traniitu is defeated only to the extent of the debt, and if other goods belonging to the purchaser have been pledged to the assignee of the bill of lading at the same time with the pledging of the bill of lading, the seller is entitled to have the proceeds of the other goods applied to the discharge of the debt before his own goods are so applied. In the matter of Westzinthius, 5 B. & Ad. 817, Lord Denman, in delivering the judgment of the Court, observed, — "In this case Westzinthius, who was the unpaid vendor at the time when his agent made the demand on the master of the vessel on board which the oil was, had no right to take possession on the insolvency of the vendee, because the property in, and also the right to the possession of the goods, was unquestionably vested at that time in the indorsee of the bill of lading for a valuable consideration. The demand, therefore, of the vendor, gave him no legal right to the property or pos- session of the goods ; and it appears to us that he can have no claim at law, except as arising out of the right of retaking the possession of the goods themselves, which right was determined by the indorsement of the bill of lading. But as the vendor would have had a clear right at law to resume possession of the goods on the in- solvency of the vendee, had it not been the transfer of the property and right of possession *by the indorsement of the bill of lading for a valuable con- r^jKi-i sideration to another party, it appears to us that in a court of equity such L -■ transfer would be treated as a pledge or mortgage only, and the vendor would be considered as having resumed his former interest in the goods, subject to that pledge or mortgage, in an analogy to the common case of a mortgage of a real estate, which is considered as a mere security, and the mortgagor as the owner of the land. We therefore think that the vendor by his attempted stoppage in transUu acquired a right to the goods in equity, subject to the indorsee's lien thereon, as against the vendee and his assignees, who are bound by the same equities as the vendee himself was ; and this view of the case agrees with the opinion of Mr. Jus- tice Buller in his comment on the case of Snee v. Present in Lickbarrow v. Mason. If then the vendor had an equitable right to the oil, subject to the indorsee's lien thereon for his debt, he would by means of his goods have become a surety to the in- dorsee for the vendee's debt, and would then have a clear equity to oblige the indorsee to have recourse against the vendee's own goods, deposited with him to pay his debt, in case of the surety; and all the goods both of the vendor and vendee hav- ing been sold, the vendor would have a right to insist upon the proceeds of the ven- dee's goods being appropriated in the first instance to payment of the debt." 9. The same principle was laid down by Lord Langdale in the case of Spalding V. Ending, 6 Bevan, 380, where it was held that in equity a transfer of a bill of lading for valuable consideration by a consignee for a limited purpose, does not destroy the consignor's right of stoppage in transitu, ultra the particular lien of the transferee. Lord Langdale observed, — " As against the purchaser, I think that the seller had a right to stop the goods in transitu, and although the legal right to the goods was transferred with the bill of lading, yet I think that in equity the transfer took effect only to the extent of the consideration paid by the tranferee leaving in the seller an equitable interest in the surplus value." 10. The privilege of negotiability belongs only to a bill of lading, and is not exten^d to a shipping note, or a delivery order, or an invoice. In Akerman v. Humphrey, 1 0. & P. 53, it was held that the delivery of a shipping note to a party by the consignee, with a delivery order on the wharfinger to deliver the goods as soon as they arrived, did not pass the property to that party so as to prevent a stoppage m transitu by the consignor. Burrough, J., observed, — " I do not think that the giver of the shipping note and delivery order to the plaintiff made a change of the property, and I think the shipping note does not amount to a bill of lading. A bill of lading is exactly like a bill of exchange, and the property it 104 BOSS ON COMMERCIAL LAW. „_ refers to passes by indorsement on it, but not delivery *of it without I '■°^i indorsement. I do not think that the shipping note, from the nature of it, is indorsable, and here in point of fact it is not indorsed; therefore, in my judg- ment there was no change of property." 11. The negotiable quality of a bill of lading is confined to the case where the person who transfers the right is in possession of the bill of lading, so as to be in a situation to transfer the instrument itself, which is the symbol of the pro- perty transferred. In Jenkins v. Urborne, T M. & G. 699, C. J. Tindal, in deliver- ing the judgment of the Court, observed, — " The actual holder of an indorsed bill of lading may undoubtedly by indorsement transfer a greater right than he him- self has. It is at variance with the general principles of law that a man should be allowed to transfer to another a right which he has not ; but the exception is , founded in the nature of the instrument in question, which being like a bill of ex- change, a negotiable instrument for the general convenience of commerce, has been allowed to have an effect at variance with the ordinary principles of law. But this operation of a bill of lading being derived from its negotiable quality, appears to us to be confined to the case where the person who transfers the right is himself in possession of the bill of lading, so as to be in a situation to transfer the instrument itself, which is the symbol of the property itself. In the present case, Thomas (the party to whom the consignor had sold the goods) was not in possession of the bill of lading ; he had only an order on the captain to deliver the goods on arrival ; and when under the circumstances stated in the case, that order was handed over to the defendant, it appears to us that although an interest in the contract passed to the defendant, the interest in the goods did not pass, as it would have done if the transfer had been by assignment of the bill of lading, but that such interest in the goods was still liable to be defeated by the insolvency of Thomas and a proper exercise of the right of stoppage in transitu." ^^,...*THE BANKRUPTCY OF THE PURCHASER DOES NOT OPERATE •- -I AS A COUNTERMAND BY THE SELLER; AND If THE ASSIG- NEES OE THE BANKRUPT OBTAIN POSSESSION OE THE GOODS, THE TRANSITUS IS AT AN END. ELLIS V. HUNT. Nov. 20, ITSl.— E. 3 T. E. 464. Trover for a quantity of files. At the trial before Lord Kenyon at Westminster, a verdict was taken for the plaintiffs, subject to the opinion of the Court on the following case : — On the 31st of October, 1788, Moore, the bankrupt, ordered the goods in question from the plaintiffs, who are manufacturers at Sheffield ; and on the 14th of November following they were sent by Boyle's wagon, directed to the bankrupt in London ; the wagon being overloaded, the cask was taken out at Stampford, in its way to town, and put into the defendant Hunt's wagon, which brought it to the Castle and Falcon Inn in London, on the 22d of November, 1788. The plaintiffs drew a bill on the bankrupt for a part of the value of the goods, which bill was never paid. The cask and files wire, on their arrival in town, immediately attached by Messrs. Fenton and Com- pany, creditors of the bankrupt, by process of foreign attachment issued out of the Mayor's Court of London ; the cask remained at the inn, charged with such attachment, so far as the same could charge it. On the 16th of November a docquet was struck against Moore ; and on the OONTEAOT OF SALE. l05 18th a commission of bankrupt issued against him, on which he was declared a bankrupt, and the other defendants were chosen his assignees. On the 24th of November a provisional assignment was executed by the commissioners to John Wells, the messenger under the commission, who on the same day demanded the goods in question from the defendant Hunt, the carrier, and put his mark upon the cask, but did not take the goods away. On the 28th of November the plaintiffs wrote a letter to the agent of Koyle's wagon, directing him in case the goods were not delivered, to keep them in his warehouse, as they had heard that Moore was become a bankrupt. On the 13th of December the plaintiffs de- manded the cask and files of Mott, the master *of the Castle j-^, , ... and Falcon, and offered to pay the carriage and to indemnify him, L J which Mott refused ; and upon the attachment being withdrawn, he delivered up the goods to the defendants, the assignees, of whom they have since been demanded ; but they have refused to deliver them up. Wood, for the Plaintiffs. — ^The general rule is now clearly established that the consignor of goods may, in case of the insolvency of the consig- nee, stop them at any time before they get into his actual possession. Upon that principle the plaintiff was entitled to stop them in this in- stance, they being still in transitu, while they were in the custody of the carrier or his agent. In Snee v. Presoot, 1 Atk. 248, Lord Hard- wioke said, that "if goods were to be delivered to a carrier to be con- veyed to A., and while the carrier was upon the road, and before actual delivery to A. by the carrier, the con^gnor hears that A. his consignee is likely to become a bankrupt, or is actually one, and countermands the delivery, and gets them back into his own possession again, trover will not lie by the assignees of A. ; because the goods, while they were in transitu, might be so countermanded." Now here the letter was a suffi- cient countermand of the delivery, and was equivalent to a repossession of the property by him. The very bankruptcy itself was a countermand. In the case of Stokes v. La Kiviere, one Duhern, living at Lisle in Flan- ders, sent an order to the plaintiffs for goods to be consigned to him : they were accordingly sent by the particular conveyance mentioned in the instructions, by the way of Ostend ; at which place, before they got to Duhern, they were attached by the defendant for a debt due to him from Duhern j but not till after the plaintiff hearing of the insolvency of Duhern had countermanded the delivery : Lord Mansfield held that the constructive possession of the consignee, to whose special agent the goods had been delivered in London for the purpose of being transmit- ted to him, was not to be regarded ; but there must be au actual de- livery to the consignee himself. So here, the goods being attached while they were in transitu, and before the vendee had actually taken possession, it was competent to the plaintiffs to countermand the delivery, in the event which happened. And certainly they *must be ^^^ Re- considered in transitu, till they arrive at the ultimate place of L J their destination, which was not the case here. The case of Hunter and Others, assignees of Blanchard and Lewis, v. Beal, is still stronger to show the necessity of an actual possession by the bankrupt, in con- 106 ROSS ON COMMERCIAL LAW. tradistioction to a constructive possession by the intervention of an agent. That was an action of trover for a bale of cloth, which was sent by Messrs. Steers and Co. of Wakefield to the defendant, who was an inn- keeper, directed for the bankrupts; to whom the defendant's book- keeper gave notice thct a bale was arrived for them ; and Steers and Co. at the same time sent them a bill of parcels by the post, the receipt of which they acknowledged, and wrote word that they had placed the amount to the credit of Steers and Co. The bankrupts gave orders to the defendant's book-keeper to send the bale down to the Galley Quay, in order to ship it on board the Union, to be carried to Boston. The defendant accordingly sent the bale to the quay; but arriving too late to be shipped, it was sent back to him. Within ten days afterwards a clerk of the bankrupt went to the defendant's warehouse, when the de- fendant asked him what was to be done with the bale in question, and was ordered to keep it in his custody till another ship sailed, which would happen in a few days. The bankruptcy happened soon after- wards ; and Messrs Steers and Co. sent word to the defendant not to let the bale out of his hands : accordingly when the bankrupts applied for it, he refused to deliver it up. Lord Mansfield was clearly of opinion that, though the goods might be legally delivered^ to the vendees for many purposes, yet as for this purpose there must be an absolute and actual possession by the bankrupts ; or (as his Lordship expressed it) they must have come to the corporal touch of the vendees : otherwise they may be stopped in transitu: a delivery to a third person, to convey to them, is not sufficient. Agaij(, in Hunt and Others, assignees of Bennet and Heaven, v. Ward, where the goods had been sent by orders from the vendee. to a packer; the packer was considered as a middleman between the vendor and the vendee ; and therefore the Court held that they might be stopped in transitu, on the bankruptcy of the vendee. Here the goods continued all the time in the hands of the carrier; r#l ^RT ^g*™** whom an action *might have been brought in case of L -I loss ; therefore the assignee's putting his mark on them could not divest the consignor's right, under the authority of the cases cited: and after the plaintiff's countermand, the carrier held the possession for him. Besides which, the right of the seller to his goods, where he cannot receive payment for them, is grounded in conscience, and therefore the Court will readily lean in support of it ; and no inconvenience can arise on this case, as the goods are not mixed in the general mass of the bank* rupt's property, so as not easily to be ascertained! Baldwin, for the Defendants, was stopped by the Court. Kbnyon, C. J — If any case had been decided to the extent of the plaintiff's argument^ namely, that bankruptcy is of itself a countermand, the plaintiffs here would be entitled to recover : but that has never yet been decided. The doctrine of stopping goods in transitu is bottomed on the case of Snee v. Preseot, where Lord Hardwicke established a very wise rule, that the vendor might resume the possession of goods consigned to the vendee before delivery, in case of the bankruptcy o^ the vendee : on this all the other cases are founded. There have indeei been cases, where nice distinctions have been taken on the fact, whethe* OONTRAOr OF SALE. 107 the goods had or had not got into the possession of the vendee; but they all profess to go on the ground of the goods being in transitu when they were stopped. As to the necessity of the goods coming to the " corpo- ral touch" of the bankrupt ; that is merely a figurative expression, and has never been literally adhered to. For there may be an actual deli- very of the goods, without the bankrupt's seeing them ; as a delivery of the key of the vendor's warehouse to the purchaser. In order to decide this case, it is material to attend to the dates; on the 24th of November the provisional assignment was njade to Wells, who on the same day demanded the goods in question of the defendant Hunt, and put his mark on the cask. Now, it is said that this should have been done by the bankrupt himself : but by the assignment he was stripped of all his property, which was then vested in the provisional assignee. Therefore, if a corporal touch were necessary to defeat »the right of the ^^^^ .„ vendors, it took place here. It is true that the provisional L J assignee did not alter the situation of the goods; but they were then arrived at the end of their destined journey, and deposited in a place where they would have remained till the bankrupt could have carried them to a warehouse of his own. All this happened on the 24th of November ; and it was not until the 28th of that month that the vendor wrote to countermand the delivery of the goods : but that was too late ; for the goods were no longer in transitu; they were then in the posses- sion of the party to whom they were consigned, or of those who repre- sented him. In cases of this sort we cannot but feel for the situation of the manufacturer; but it is such as they are necessarily subject to from their mode of dealing : however, the severity of the case cannot induce us to break through the rule of law. AsHHUKST, J. — The leaning of my mind would be in favour of the plaintiff; but the law will not allow him to be in a better situation than the rest of the bankrupt's creditors. The general rule is, that the con- signor has a right to stop the goods, if he can, before they get into the actual possession of the bankrupt. But here, before the plaintiff thought of countermanding the goods in question, the provisional assignee, who then stood in the place of the bankrupt, had actually taken possession of them, and put his mark on them. BuLLER, J.— I am not disposed to disturb or to lessen the authority of any of the cases that have been decided on this subject; but none of them could justify the vendor in this case in taking back the goods. In the former cases the line has been precisely drawn ; and they all turn on the question, whether or not there had been an actual delivery to the bankrupt. It is of the utmost importance to adhere to that line ; for if we break through it, we shall endanger the authority of the oases that have been already decided, and shall fritter away the rule entirely. In one of the cases cited, Lord Mansfield took the distinction between an actual and a constructive delivery to the vendee. There may be cases where, as between the buyer and seller, if no bankruptcy or insolvency happen, the goods are *considered in the possession of the buyer p^^ _„-. the instant they go out of the possession of the vendor ; as if L J A. order goods from B. to be sent by a particular carrier at his own 108 EOSS ON OOMMEBOIAL LAW. risk, the delivery to the carrier is a delivery to the vendee to every other purpose ; but still, if he become a bankrupt before the carrier actually deliver them to him, I should hold that the vendor might seize them j because that is only a constructive delivery to the vendee : but an actual delivery is necessary to divest the vendor's right of stopping the goods in transitu. It is clear that bankruptcy itself does not put an end to the contract ; and if not, the right of the vendor to seize goods in tram- itu is founded only on equitable principles. It is a right, with which he is indulged on principles of justice, originally established in courts of equity, and since adopted in courts of law. But in order to avail him- self of it, he must stop the goods before they get into the actual posses- sion of the vendee. But in this case there is the strongest evidence of the consignee's taking actual possession of the goods by his assignee putting his mark on them. It was said by the plaintiflF's counsel, that the carrier would have been liable in an action by the vendor ; but he would not have been liable in the character of carrier, for the goods had got to the end of their destined journey ; but he would have been liable only as a warehouse-keeper, in respect of the recompense which he was to receive for warehouse room. But the instant the provisional assignee put his mark on the goods, the warehouseman became the agent or ser- vant to the bankrupt. Grose, J — The general rule is perfectly clear that the consignor may seize the goods in transitu, in case of the insolvency of the consignee, before they actually reach him. The question therefore here is. Whe- ther, on the facts of this case, the goods were or were not in transitu when the plaintiff wrote to countermand the delivery of them ? Now it is stated as a fact, that before this letter arrived the provisional assignee had put his mark upon the cask ; and this distinguishes it from the cases cited. When the goods were marked, they were delivered to, the consignee as far as the circumstances of the case would permit ; the r*159n ^^^'g''^^ could not then take them away, because *they were at L J that time under an attachment. After the mark was put on them, they were no longer in transitu ; and consequently the plaintiff's right to seize them was divested. Postea to the defendants. A PURCHASER, PRIOR TO AN ACT OP BANKRUPTCY, MAT RESCIND THE CONTRACT OP SALE, AND REJECT THE GOODS J BUT IP THE GOODS ARE ONCE DELIVERED TO THE PURCHASER, HE CANNOT, ON THE EVE OF INSOLVENCY, RESCIND THE CONTRACT AND RETURN THE GOODS, NEITHER CAN HE INTERFERE AFTER AN ACT OP BANKRUPTCY TO REJECT THE GOODS, WHILE THEY ARE IN TRANSITU, SO AS TO GIVE A PREFERENCE TO THE SELLER OVER HIS OTHER CREDITORS. I. — SALTE V. FIELD. May 3, 1793.— E. 5 T. R. 211. In trover for 176 pieces of printed calico, the question was, Whether CONTRACT 01' SALE. 109 the goods were the property of the plfeintiffs, or formed a part of the efifeots of Dewhurst, a bankrupt, and as such vested in his assignees ? and on the trial of a special case was reserved, in substance, as fol- lows : — Dewhurst had a house of trade in Austin Friars, London, where his business was conducted by J. Hill, his clerk, and had also a house of trade at New York, where he himself resided and conducted his busi- ness. The goods in question were sold by the plaintiffs to Dewhurst through the intervention of Hill, his clerk, on the 3d and 5th of May, 1792, and were delivered on those days at the house in Austin Friars, London, and were afterwards sent by Dewhurst's clerk to the defendant to be packed, in order to their being shipped to Dewhurst at New York. On the 9th of April, 1792, Dewhurst wrote a letter to Hill, his clerk and manager in London, which was received by the latter in London on the 18th of May, 1792 ; in that letter, after saying that he was ruined in consequence of several failures, he added, " if you have purchased any goods for my account, or if any orders are given out, lot the persons have *their goods back, and countermand all orders." This letter (-,ion-i was shown by Hill to the plaintiffs on the 18th of May, 1792, L J about nine o'clock in the evening, who then informed Hill they were ready to take back the goods as proposed by the letter. On the 18th and 19th May, 1792, several attachments were made in the Mayor's Court and Sheriff's Court, London ; and served upon the defendant by creditors of Dewhurst, in order attach the goods in question, and other goods which had been sold to Dewhurst and sent to the defendant as his packer; and the debts for which such attachments were made exceeded in amount the value of all the goods in the hands of the defendant. On the 21st of May, 1792, a meeting of Dewhurst's creditors was con- vened by Hill his clerk, when the letter was laid before them. On the 23d May, 1792, the plaintiffs demanded the goods in question of the defendant, and in consequence of their not being delivered commenced the present action. Dewhurst returned to England in October, 1792, and S. Wilson and Barnard were the assignees of his estate and effects under a commission of bankrupt dated 19th January, 1793. Baldwin, for the Plaintiffs contended, first, that the property of the goods never vested in Dewhurst j because on the 9th April preceding the delivery of the goods to Hill the agent, his agency was determined, at least with respect to any advantage to be derived from it to the bank- rupt; and consequently after that time the latter could not avail himself of any act done by Hill in his favour. Secondly, But supposing the pro- perty of the goods did vest in Dewhurst in the interim between the de- livery and the assent of the vendors to the countermand, yet when that assent to receive the back goods was given, it had relation back to the bankrupt's offer, which was on the 9th April, and consequently it is not affected by the subsequent attachments or bankruptcy. For the assig- nees, or those who claim from the bankrupt, can only take his property, subject to those equities which would have affected himself in case he had remained solvent : and if the offer made by him to return the goods, when he found he was no longer likely to pay for them, being founded.. Jandaet, 1855. — 8 110 ROSS ON COMMEEOIAl LAW. . in honour and conscience, *was binding upon him, and was L "J such as he then could legally make, he having then the disposal of his own effects, his act will equally bind his assignees, who are the real defendants in this case. This point, however, does not rest on gen- eral argument, but was solemnly decided in Atkin v. Barwick, 1 S. 165. The difference, if any, is in favour of the plaintiff's demand : the facta of it are in substance the same; but there, although the goods were sent to a third person before the bankruptcy, yet no notice was sent of there having been such a delivery to the use of the vendors till after the bank- ruptcy ; whereas here the countermand and relinquishment of the pro- perty was sent before the attachments or the bankruptcy, namely, on the 9th April, 1792, to which the assent of the plaintiffs must have relation. Parh, contra, said there was a material distinction between this and the case of Atkin v. Barwick, for there the goods were actually sent by the bankrupt to a third person, and accepted by him to the use of the vendor before the bankruptcy, although the notice was not sent to the vendor himself till afterwards ; so that there was a complete delivery to him, and not merely an offer to deliver, while the bankrupt had still the disposition of his property. But there is another and a more important distinction between the two cases, as the case of Atkin v. Barwick was understood by Lord Mansfield in Harman v. Fisher, Cowp. 125, ivhere he observed that the judgment of that case seemed to be right, but that the reasons, as reported by Strange, were wrong : that the true ground was, that the trader very honestly refused to accept the goods, and re- turned them. And his lordship again adverted to the same case, with the same doubts as to the reasons for the judgment, in another case of Alderson v. Temple, 4 Burr. 2239. And it is to be observed that the goods in that case in Strange were never entered in the bankrupt's stock, but were soon after the delivery sent by them to another person for the .vendor's use. Here the goods were accepted into the bankrupt's stock by his agent, and acts of ownership exercised upon them, they being sent to the packers for the purpose of being prepared for exportation. r*lfi21 ^'^^^ therefore forms a material distinction between the two L J *cases. It cannot be contended that the property did not once vest in the bankrupt ; for when an agent is invested with a competent authority to act for his principal, nothing can be better established than that all the acts of such an agent, more particularly with respect to third persons, must be binding upon the employer until the agency is revoked by notice delivered to the agent. If it were otherwise, no person would be safe in treating with agents of persons abroad. The plaintiffs might undoubtedly have insisted upon the sale after the agreement and delivery to Hill: that delivery therefore was absolute and unconditional as to the two contracting parties in London, and could not be undone without the mutual assent of both. The property was as completely vested in the bankrupt by the act of his agent, as if he had been present himself. Then notwithstanding the offer of one of the parties to relinquish the contract, it could not be revoked until the assent of the other was actu- ally given. Now, that assent was not given till the goods had been CONTBAOT OP SALE. Ill attached by other creditors of the bankrupt ; and if at the time of the attachment the property of the goods remained in Dewhurst, it was not in the power either of him or the plaintiffs by any subsequent act to defeat the attachment. , The Court stopped Baldwin from replying. Lord Kenton, 0. J. — The property in these goods was apparently divested out of the plaintiffs at the time of the sale, according to the opinion which the parties then had of the transaction ; but afterwards, when all the facts were disclosed, and when Dewhurst was desirous not to purchase any other goods, it was in the power of the buyer and sel- ler to put an end to the contract as if it had never existed ; and it is stated that the proposition made by the purchaser to rescind the contract was acceded to by the sellers. I cannot distinguish this case from that of Atkin V. Barwick on principle ; for in that case there had been a delivery of the goods by the seller with the concurrence of all the parties interested j but the agreement of the parties to rescind that contract put an end to the sale as if it had never taken place. So, in this case, it was competent to the principal to disavow the contract made by |-^. „„_ •his agent, if the vendors choose to accede to it; the proposition <- J made by the purchaser, and which was dictated by common honesty, might have been refused by the vendors if they had chosen ; but they agreed to it, and by the mutual agreement of both, the contract of sale was rescinded. If Dewhurst had died before the purchase, the contract must have been put an end to. AsHHURST, J, — The case cited from Strange directly applies to the present. By the letter written by Dewhurst, and by the subsequent act of all the parties, the sale was rescinded. A proposal to that effect was made by one party, and agreed to by the other; and, by that, the contract was put an end to by the consent of both. And though the goods remained in the hands of the defendants, they did not remain there for the purpose for which they were originally intended : but, the contract being rescinded, the property revested in the plaintiffs ; and therefore the creditors of Dewhurst had no right to attach the goods in the hands of the defendant, because at that time they were no longer the property of Dewhurst. BuLLER, J. — The principle on which the case of Atkin v. Barwick was decided governs this ; and indeed that is a much more favourable case for the plaintiffs than this. The point there contended for was, that there was no consent by the sellers to rescind the contract ; but here an express consent by them is stated. As to the assent there, the Court said they would presume it, because it was for the interest of the parties : but here it is not necessary to presume such a consent, it being expressly proved. With regard to the justice of the case, it is impossi- ble to entertain any doubt. A question has been put in argument, whether those acts done by the agent before he knows of the revocation of his letter of attorney, are good ? I think that the principal in such a case could not avoid the acts of his agent, done bona fide, if they were to bis disadvantage : but he might consent to avoid those which were for his benefit. And here the principal was anxious to rescind 112 ROSS ON COMMERCIAL LAW. this as well as all other contracts made by his agent; and the vendor agreed to take the goods back again. Grose, J., of the same opinion. { Postea to the plaintiffs. [n64] »II. — BAKNES v. FKEELAND. Nov. 24, 1^94.— E. 6 T. R. 80. This was an action of trover, brought by the plaintiff as assignee of Lloyd, a bankrupt, for 60 tons weight of iron ; and at the trial the following admissions- were made by the parties. On the 9th of Novem- ber, 1792, the defendant agreed to sell to the bankrupt 44 tons, 7 cwt. 3 qrs. 14 lb. of iron, at £15, 15s. per tpn, for the amount of which the bankrupt agreed to accept a bill of exchange at nine months' date, to be drawn on him by the defendant ; and the defendant on the same day delivered the iron to the bankrupt. The defendant, in pursuance of the agreement, on the same day drew a bill of exchange on the bank- rupt for £699, 4s., the amount of the purchase money payable at nine months after date, which the bankrupt then accepted, payable in London, and re-delivered to the defendant, but it did not become due until after Lloyd's bankruptcy, and it has been since protested for non-payment. The bankrupt transacted business with Caldwell and Co. of Liverpool, as his bankers, and on the 18th of March, 1793, was indebted to them in a considerable sum of money, but the defendant was totally ignorant of the state of their accounts. On the 18th of March, 1793, Caldwell and Co. stopped payment, o f which the bankrupt heard in the morning of that day, and immediately went to the house of the defendant, and informed him that the bani of Caldwell and Co. had failed, and that he should not be able to take up the bill which he had accepted for the amount of the iron, meaning the bill before mentioned ; for that in consequence of Caldwell and Co.'s failure, he, the bankrupt, must stop payment. On the same day he wrote to several of his creditors to the' same effect, as to the necessity of his stopping payment ; and the bank- rupt informed the .defendant that the before mentioned 44 tons, 7 cwt. 3 qrs. 14 lb. of iron had not been removed from the warehouse, wherein it was at the time of the sale of the bankrupt, and said he thought it would be an act of justice to return to the defendant the iron so bought, as he should not be enabled to pay for the same, or take up the accepted bill. The defendant accepted of the offer so made by the bankrupt, but r*1651 ^^^^ ^^ *^'^ ''°* ^'^^ '° ^*'® ^^^ ''"°°' "''Isss *the transaction L -I was fair and right : and at; the same time the bankrupt delivered a bill of parcels to the defendant, dated the 16th of that -month, of 50 tons of iron, including the iron so bought on the 9th of November, 1792, because he at that time owed the defendant a further sum of money on a bill accepted by the bankrupt for another parcel of iron bought by him from the defendant ; and he therefore thought it his duty to give up the additional quantity beyond the 44 tons 7 cwt. 3 qrs. 14 lb. This bill of parcels was dated on the 16th of March, 1792, and CONTRACT OF SALE. 113 was for 50 tons, at 15 guineas per ton, amounting to £787, 10s. The bankrupt in his account with the defendant, debited the defendant with the amount of this bill of parcels thus, — "March 16th, To amount of 50 tons of iron sold him this day, £787, 10«." 44 tons, 7 cwt. 3 qrs. 14 lb., part of the iron mentioned in this bill of parcels, is the same which was sold and delivered by the defendant to the bankrupt on the 9th of November, 1792 j but the remainder was a parcel of iron which the bankrupt had received in exchange for other iron, which the defen- dant and the bankrupt had some time before purchased in partnership, which upon a division of such joint purchase had been allotted and delivered to the bankrupt. The bankrupt and the defendant having overpaid the sellers of the last mentioned iron bought on their joint account, they received the balance from the sellers in a bill, which has been since the bankruptcy of Lloyd protested for non-payment and taken up by the defendant ; and this is the only unsettled transaction relative to that co-partnership. No conversation passed between the bankrupt and the defendant on the 18th March, relative to this co-part- nership transaction. On the 18th of March, 1793, the bankrupt deli- vered the last mentioned bill of parcels, and also the key of the ware- house wherein the whole of both parcels of iron was deposited, but not intermixed, to the defendant, who kept possession thereof, but did not return to the bankrupt the bill of exchange for £699, 4s. which was accepted by the bankrupt as aforesaid, he the defendant having paid away the same in the usual course of trade, and the same was not then in his the defendant's possession, but the defendant promised to take up and cancel the same, which he accordingly did. The defendant has since the bankruptcy of Lloyd sold the whole of both parcels of iron on *his own account, and received the purchase money for his own p^^ „„-. use. The defendant did not make any application to the bank- L J rupt to re-deliver or re-sell to him the iron included in the last men- tioned bill of parcels ; but the same was a voluntary oflFer of the bank- rupt wholly unsought by the defendant. This iron was all the stock in trade of the bankrupt in his actual possession : but the defendant was not privy to this fact; and the bankrupt was indebted to the defendant in a further sum of money, exclusive of the transaction before stated, viz., iS200 and upwards. The bankrupt, knowing himself to be insol- vent, was determined not to do any other business after the failure of Caldwell and Co. as before mentioned ; and he therefore, without the knowledge of the defendant, until the same was delivered to him, dated the bill of parcels the 16th day of March, and entered it into his books under that date. The bankrupt did not transact any business after that date : on the 23d of March he committed an act of bankruptcy ; a commission of bankrupt issued against him on the 28th day of the same month ; and the plaintiff is assignee of his estate, &c. The iron which the defendant sold to the bankrupt on the 9th November, 1792, is of the value of j6665, 9s. Id. ; and the remainder of the iron included in the latter bill of parcels made by the bankrupt to the defendant on the 18th of March, 1793, is of the value of £59, 13s. 5c?. On these admissions the jury found a verdict for the plaintiff under the directions 114 BOSS ON COMMEEOIAL LAW. of the learned Judge, but liberty was given to the defendant to have that verdict set aside, and a verdict entered for him, if this Court should be of opinion that under the circumstances of the case the plaintiff was not entitled to recover. A rule for that purpose having been obtained on a former day. Law was now prepared to show cause against it ; but the counsel on the other side were desired to begin. Heywood, Serjt., and Topping, for the defendant, contended that as it was competent to both the contracting parties to rescind the contract before the bankruptcy of the vendee, and as in fact they did rescind it, the property in question was revested in the defendant. A trader has a r«l R7T g^!'^''^! disposing power *over his effects at all times before he L J becomes a bankrupt, and the exercise of that power is in all eases valid, unless it be considered as fraudulent in the eye of the law. But all payments on the eve of a bankruptcy are not fraudulent ; some are protected by the law — 1st, In the common case where money is vol- untarily paid in the ordinary course of trade and dealing ; 2d, Where it is recovered by the due diligence of the creditor against the will of the bankrupt;, or, 3dly, As in the present case, where a trader, finding him- self unable to pay for goods for which he has contracted, rescinds the con- tract before the goods have been mixed with the general mass of his pro- perty, and while there is (what is called in some of the cases) an ear mark upon them, by which they may be distinguished. The Courts have always favoured transactions of this kind, as being founded on common honesty'; and it has been thought just that a vendeee should be permit- ted to return that property in specie for which he is unable to pay. Arid therefore this is not like the case where a bankrupt gives an undue pre- ference to one creditor by paying his whole demand out of the general fund, that ought (o be distributed amongst his creditors at large ; for this is only returning to the vendor his own property, which is unmixed with, and may be distinguished from, the rest of the vendee's goods. Though even in cases of a preference given to one creditor. Lord Mansfield said in Harman v. Fisher, Cowp. 123, that " all questions of preference turn upon the action being complete before an act of bankruptcy committed ;'' and here the iron was re-delivered on the 18th ; and the act of bankruptcy was not committed until the 23d of March. It appears from several dif- ferent oases, that notwithstanding the delivery of the goods has been com- plete, the vendor and vendee may rescind the contract, provided the agreement to rescind it be made before the bankruptcy of either. In Atkin V. Barwick, 1 Str. 165, the vendors had not only sent the goods to the bankrupt, but had given him credit for them in their books ; but the bankrupt, being then upon the eve of a bankruptcy, and knowing he could not pay for the goods, returned them to a friend of the vendors' for their use; but it is evident from the dates that the goods must have been some time in the bankrupt's custody; for they were sent from London P1681 ^"*^° Cornwall *on the 7th of April, and it was not until the 18th L -J of May that they were returned by the bankrupt; and there the vendors did not agree to accept the goods again until after the bankruptcy of the vendee. So in Salte v. Field, 5 T. R. 211, there was not only an CONTEAOT OF SALE. 115 actual delivery of the goods by the vendor "to the agent of the vendee, which was to all intents and purposes a delivery to the vendee himself, but also an act of ownership exercised over them by the agent ; and yet it was held that the vendor and vendee might rescind the contract before the bankruptcy of the latter. And the same principle was admitted in Smith V. Field, Cowp. 402, though the vender in that case did not agree to rescind the contract. Then in this case as both parties agreed to re- scind the contract of sale before the vendee's bankruptcy, the defendant is entiled to retain the produce of the goods in question especially as they were never mixed with the rest of the vendee's property, but were as ■ easily distinguishable from it as if there were an ear mark upon them ; in which case Lord Hardwicke said, in Snee v. Prescot, 1 Atk. 250, that the vendor might re-take his goods by any means short of felony. Lord Kenyon, C. J The arguments in cases of this kind are ad- dressed to our compassion ; and we are sorry to find that sometimes when an honest tradesman has sold goods to another to a considerable amount, and the latter becomes insolvent, the former is not able either to recover the goods themselves, or the full payment for them. But the rules of law are framed with a view to benefit the bankrupt's creditors in general, and not to give a preference to any in particular. It is said, however, that the vendor may in all cases rescind his contract with the consent of the vendee at any time before the bankruptcy of the latter; but if that were so, all the creditors of a bankrupt, whose goods remained in his hands in specie, might, when they found that he was in insolvent circum- stances, go to the bankrupt's property and bring away what each had con- tributed to the fund, leaving nothing to satisfy the rest of the creditors. The present seems to be an extremely clear case, for it is founded in fraud. The parties themselves endeavour to give a different complexion to the transaction from that which is the *true one ; and in order to p,, „„_ mislead the creditors of the bankrupt, they made a false entry in L .J the bankrupt's books, where it was stated that the re-delivery of the goods to the defendant was made two days before the time when the transaction really took place; and that fact is of great importance; because that an- tedate carries the re-delivery back to a time previous to the bankruptcy of Caldwell and Co., on which depended the solvency of the vendee. The goods here were originally sold and delivered to the vendee, and they were locked up in his warehouse : therefore there was a complete transfer of the property from the defendant to the bankrupt at the time ; and the question is, Whether, when the latter became insolvent, he could re-de- liver it back to the defendant in specie ? I cannot distinguish the pre- sent case from that of Harman v. Fisher, on principle, for this bankrupt knew his insolvent situation at the time when he wished to deliver back the goods in question to the defendant, as well as Fordyce did in that case ; there Fordyce finding that he was insolvent was anxious to repay to the defendant some bills which the latter had lent him, and though those bills were as easily distinguishable from the rest of his effects as the iron in question was from the rest of this bankrupt's property, the Court there held that it could not be done, because it would prejudice the other creditors of the bankrupt. Three cases, however, have been cited, 116 UOSS ON OOMMEKOIAL LAW. and pressed upon us, as deciding the present : But I thing they are to be distinguished from this. In Atkin v, Barwick, the vendees finding that their aiFairs were in a declining condition before the goods arived at their house in Cornwall, refused to accept the goods, and thereby refused to become parties to the contract of sale : and though when the goods did arrive by the wagon the vendees could not turn them loose in the street, yet they did what was tantamount to rejecting them, they sent them to a friend of the consignor's for their use. In Salte v. Field, con- sider who was the party to the contract; not the clerk of the vendee who lived in London, but Dewhurst who was residing in New York; and he knowing his insolvent situation, sent orders a month before the transaction in dispute took place to his clerk here not to purchase any more goods for him ; the clerk immediately on receipt of this order applied to the r*i 7m ■'^^D'^oi's 'o *^^^ *'^^ *goods back again, who agreed to rescind the L J contract. In giving my opinion on that case, I said that "the property in the goods was apparently divested out of the plaintiffs at the time of the sale, according to the opinion which the parties then had of the transaction :" but though the property was then apparently divested out of the vendors, it was not so in reality, because the delivery to the agent of the vendee was controlled by the prior orders of the bankrupt his principal. But in this case the goods were delivered to and accepted by the vendee, and the property remained in him until he became insol- vent. What was laid down by Lord Hardwicke in the case alluded to, does not apply to such a case as the present : he only said, that before the contract was complete, and while the goods were in transitu, the owner might by any means, without committing a felony, regain the possession of his goods for which he had not been paid. That, though said in a court of equity, is now become a general and a good rule of law : but it must be confined to those oases where the goods are in transitu. Our decision, therefore, against the defendant in this case, will be conformable to every decided case, and to the reason of the thing. AsHHURST, J — It was admitted in the argument, that if the contract of sale were not rescinded at the time of the bankruptcy of the vendee, it could not be rescinded afterwards by any act of the contracting parties; now I think that the contract here was not rescinded before the insolvency of the vendee. After the contract for the sale of the iron, it was actu- ally delivered to the vendee, and put into his cellar, and he gave a bill ,.of exchange for the payment of it: then the contract was complete, and could not be rescinded by any subsequent act of the parties so as to affect the interests of third persons. But it has been said that this iron was not mixed with the rest of the bankrupt's stock : it is not necessary that it should be mixed ; but if it were, this iron was, to a certain degree, mixed with the rest of the stock, for there was some other iron in the same cellar. I do not rely however on that circumstance, because I think it immaterial ; for if once the goods be fairly and completely delivered, r*1711 ^^^''^®'' '•^ey4)o or be not mixed with the *rest of the vendee's L J stock, the bankrupt and the vendor cannot rescind the contract if the rights of other persons intervene, with a view to giving a preference to the vendor. CONTRACT OF SALE. 117 Grose, J. — In cases of this sort it frequently happens that the situ- ation of the particular creditor is a very hard one ; and the Courts are glad that they can attain the justice of the case by deciding that the contract was not completed ; but when once the contract is complete, however hard it may be on either party, it is binding on both. In determining the cases of Atkin v. Barwick, and Salte v. Field, the Court proceeded on this ground, that the contract was not perfected, and there- fore they said that the vendors were entitled to have their goods again. But that is not the present case, for the contract was perfected by the delivery and acceptance of the goods ; it is true they were not paid for, but they were sold for a sum payable at a future day, and the property was vested in the purchaser when they were delivered to him. Lawrence, J. — The facts of the case are not exactly as the defend- ant's counsel have stated and reasoned upon them. For it appears by the admissions of the parties that the bankrupt was indebted to the defendant on another account; and in order to satisfy this as well as the other debt, he gave him not only the iron in question, but also all his stock in trade. Now that was fraudulent as far as it respected the rest of the creditors. Bule discharged. III. — MILLS v. BALL. June 12, 1801.— B. 2 B. & P. 457. 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, C. J., at the sittings at Guild- hall after last Hilary Term, when a *verdiot was entered for r^tt-i-jn-i the plaintiffs with £111, 7s. Sd. damages, and 40s. costs, sub- L -■ ject 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 sub- ject 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, 7s. 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 arrival, Gard wrote the following letter to the plaintiffs, Messrs. Smith, Mills, Berkett, and Co. : — " Mrthfawton, 16ih 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 Exe- 118 ROSS ON COMMERCIAL LAW. / ter, 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 Gaed. The goods are at the wharfinger's ofiSce, marked. Lively, K. 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 Sep- tember 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 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 F#17m ^^^ demand was repeated by the plaintiffs' agent, and *a bond L J of indemnity left with the defendant to indemnify him against any claim that might be made from any other person. On the 23d of September a commission of bankrupt issued against Gard, who was sub- ject to the bankrupt laws, indebted to the petitioning creditors in a sum sufficient to support the commission, and had committed an act of bank- ruptcy on the 8th of September, 1799. On the 1st of October, 1799, be 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 £103, 7s.; the charges amounted to £8, 19s. The questions for the opinion of the Court were, whether the plaintiffs were entitled to recover? and, if they were, what damages? whether £111,* 7s. Sd., or £103, 7s., or £99, 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. £esf, Serjt., /or the Plaintiffs. — The question is. Whether the plain- tiffs under the circumstances of this case were entitled to stop the goods in transitu ? The general rule is, that where the vendee becomes insol- vent, the vendor has a right to stop the goods at any time before they come into the actual possession of the vendee. In LickbaYrow v. Mason, 2 T. R. 71, Mr. Justice Ashhurst says, "where the delivery is to be at a distant place, as between the vendor and vendee, the contract is ambu- latory till delivery, and therefore in case of the insolvency of the ven- dee in the meantime, 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 E-teter, and were to be ca,rried on from thence, and delivered to the vendee at North Tawton. The case of Hodgson v. Loy, 7 T. R. 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 P1741 "M'""'"^'^^"*'^^ *occur in this case. So in the case of Stocks v. L J La Riviere, cited 8 T. R. 466, and 7 T. R. 443, the goods were sent by the particular conveyance appointed by the consignee : and in CONTRACT OF SALE, 119 Hunter v. Beal, cited 3 T. R. 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 T. R. 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 ai right to stop the goods. If the Court should be of opinion that the plaintifiFs are entitled to succeed, the only remaining question will be, what damages the plaintiffs shall recover? Whether £111, Is. Zd., the value of the goods, £103, 7s., the sum for which they were sold, or £99, 17«., 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., contra. — The letter of the 16th of September, 1799, being written to the plaintiffs by the bankrupt after the act of bank- ruptcy, can have no effect in the case, as it cannot operate to rescind the contract. Barns v. Freeland, 6 T. R. 80, Smith v. Field, 5 T. R. 402, in which latter case the Court, referring to a case of Salte v. Field, 5 T. R. 211, take the distinction that though before the act of bank- ruptcy 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 Hardwioke in Snee v. Prescot, 1 Atk. 250, " that a con- signor 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 oases since, in which that doctrine has been recognised, the goods have been actually seized by the consignor before they have come ^^.-,-. *into the possession of the consignee ; whereas in this case the L -I vendor was not able to get them out of the wharfinger's 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 wharfin- ger. 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 wharfinger, it may be observed that in all the cases on this subject expressions have been used which must be deemed figu- rative ; such as, that the goods must have come to the " corporal touch" of the consignee, which Lord Kenyon, in Ellis v. Hunt, 8 T. R. 468, allows to be a figurative expression, and that they must have come '^ to their journey's end," which, if strictly true, would do away the autho- 120 ROSS ON COMMERCIAL LAW. rity of Ellis v. Hunt. Now here the wharfinger must be deemed the agent of the bankrupt, since he received the goods on his account, and debited him with the freight and charges. Lord Alvanley, C.J The case before the Court is shbrtly this: Gard, being a trader at North Tawton, gives orders to the plaintiflFs to send the goods in question to him from London, but does not direct that they should be sent by any particular ship j his orders were, that they should be sent to Exeter, to be forwarded to him at North Tawton. They were accordingly shipped, arrived at Exeter, and were put into the hands of a wharfinger, to be forwarded to their journey's end. In the books of the wharfinger they were put to the account of Gard as the person to whom they were directed, and he was considered as the whar- finger's pay-master. In this state of things the letter of the 16th Sep- tember was received by the plaintifis, the meaning of which I take to r*T7Rn ^^ ^^^^ ' ^^^ *vendee says, "my situation is such that I will not L J receive the goods, and you may take them back again if you think proper." The plaintiffs, immediately on the receipt of this letter, sent to the wharfinger and forbade him to deliver them according to the direction. The wharfinger promised not to deliver them till he conld do so with safety, notwithstanding which he afterwards delivered them to the assignees of Gard. The question is. Whether the goods in the hands of the wharfinger were in such a situation that the vendors could stop them ? The cases cited for the plaintiffs have established that where there is a contract for the sale of goods, and a delivery has been made to a middle man, who is merely the vehicle between the buyer and seller, the latter, in case of the insolvency of the former, may stop them at any time before they have arrived in such a state as to be in the actual or constructive possession of the buyer. The only question is. Whether these goods are to be considered as having been in the hands of a middle man, or as having been taken in the possession of the person for whom they were ultimately intended ? If in the course of the conveyance of the goods from the vendor to the vendee, the latter be allowed to exercise any act of ownership over them, he thereby, reduces the goods into pos- . session, and puts an end to the vendor's right to stop them. So, though it has been said that the right of stoppage continues until the goods have arrived at their journey's end, yet if the vendee meet them upon the road and take them into his own possession, the goods will then have arrived at their journey's end with reference to the right of stop- page. I am of opinion that the wharfinger in this case not having been particularly employed by the vendee, is to be considered as a middle man. And it has almost been admitted in the argument, that if the plaintiffs could have got the goods into their possession, they would have had a right to keep them. But then another question arises, viz., ad- mitting that the plaintiffs would have had a right to retain the goods had they got them into their own possession, whether they have any right of action to recover them out of the hands of the middle man ? I am very far from wishing' that it should be understood that an action may be brought by the person entitled to stop the goods against any CONTRACT OF SALE. 121 carrier who, after notice to *retain the goodsj delivers them to r^iYir-i the person to whom they were originally consigned : such a rule L J would be highly oppressive to carriers. A carrier knows nothing of the vendor. In the case of a conveyance by ship, the master signs a bill of lading, by which he engages to deliver the goods to the consignee or his order : and if he deliver them accordingly, it can hardly be supposed that he thereby subjects himself to an action, because the vendor has a right to stop the goods in transitu. In the present case, however, full notice was given to the wharfinger by the consignor, and no demand was made on the part of the original consignee. The consignor by letter de- manded possession; and the wharfinger admitted himself to be in the nature of a stakeholder, bound to deliver according to the right. With- out determining, therefore, whether the wharfinger would have been liable without notice, or even after notice, supposing no undertaking to have been made by him, I think it clear that the defendant in this case ' having undertaken " not to deliver the goods out of his custody till he was certain of a safe delivery," is answerable to the plaintiff. Heath, J. — I am of the same opinionf The general rale of law is admitted on all hands. The only point in this case depends upon the application of that rule to the facts.' The question therefore is. Whether these goods in point of fact were stopped in transitu ? Here there cer- tainly was no corporal touch ; but that took place which was equivalent to it. The plaintiffs gave notice to the wharfinger, and demanded the goods as their property : and the wharfinger undertook not to deliver them till he was certain of a safe delivery. It is unnecessary therefore to consider whether, without such undertaking, the defendant would have been liable. Whenever that case occurs, it will receive due con- sideration from the Court. In this case doubts have arisen with some of the Court respecting the effect of the letter of the 16th of September. It appears to me, however, that it will not vary the plaintiffs' right. In Barwiok v. Atkin, 1 Str. 165, the refusal by the bankrupt to receive the property seems to have been considered meritorious. So I think that the conduct of the bankrupt in this case was commendable. •RooKB, J In this case there is no dispute respecting the i-iki^o-, rule of law. The only difficulty arises upon the application of '• -I the facts to the law. It is agreed that a contract once completely exe- cuted, cannot be rescinded. If, therefore, the goods had got into the hands of the consignee, there is no doubt that he would have been pre- cluded from giving a preference to any one. But while the goods are in transitu they may be stopped. Then can there be any doubt whether these goods were in transitu or not ? The consignees did nothing to take possession of the goods while they remained with the wharfinger before the plaintiffs made their claim. That claim was made in conse- quence of information (which appears to me to have been very proper) that circumstances had arisen in the affairs of the consignees which made it improper for them to receive the goods. In what manner that infor- mation was obtained can make no difference in the case. The honesty of the consignees ought not to prejudice the plaintiffs' right. If indeed the consignees, after getting the goods into their hands, had given them 122 ROSS ON COMMERCIAL LAW. up, the case would have been very different : but here the information was ^given while the goods were in transitu, I do not meddle with the question how far an action might be maintained against a carrier upon a bare notice not to deliver ; b«t I tlo lo* say that such an action might not be maintained. Chambrb, J The first question is, Whether these goods were in transitu at the time they were claimed by the plaintiffs ? The goods were directed to be sent to North Tawton, where the bankrupt lived, and having been carried as far aS they could go ^by water, they were de- livered to a wharfinger to be forwarded to the bankrupt. While they were with the wharfinger the demand was made, no act having been done to shorten the journey. We cannot, therefore, without overturning all the oases, say the goods were not in transitu. The second objection is, that in order to entitle the plaintiffs to this action, they should have been taken actual possession of by the plaintiffs, either by corporal touch, or something equivalent thereto. The first delivery to the carrier vests" the property in the vendee, but the property so vested is a defeasible property, and may be defeated by the insolvency of the vendee. When r*i "QT *''berefore the vendor, having notice of such insolvency, makes L * J a demand upon the person in whose custody the goods are, he thereby defeats the contract. If this were not the case, the carrier would have it in his power to decide between the vendor and the assig- nees of the bankrupt. In the present case there can be no doubt of a conversion having taken place. Cases of diiSficulty may indeed arise; as, if a carrier upon reasonable doubt should refuse to driver up the goods without further authority, or until the circumstances of the case are as- certained : for a demand and refusal do not always constitute a conver- sion ; there are many cases to the contrary. But here there was an actual conversion, the defendant having delivered the goods contrary to his own undertaking. There is another point, however, upon which I have entertained some doubt. The vendor did not get possession of these goods by his own diligence and care, or in consequence of casual information ; but through the intervention of the bankrupt himself, eight days after the act of bankruptcy committed. That circumstance raised some doubt in my mind ; since it appeared that the bankrupt had thereby given a preference to the plaintiffs over the rest of his creditors. But still, upon the whole, I am inclined to agree with the rest of the Court. I am not fond of multiplying small distinctions, and think that too many have been already taken : and the general inconvenience will not be very great, since many cases of this kind are not likely to arise. It seems indeed that there will be a certain degree of discretion vested in the bankrupt, since he will be empowered to accept goods which are coming to him from one consignee, and to give notice to another consignee to stop them in transitu. But as no fraud appears to have been committed on the part of the plaintiffs in this case, I am inclined on this point, as well as the others, though not without some doubt, to concur with the rest of the Court. , Per curiam, Let the verdict be entered for the plaintiffs for' £99, 17«. 0ONTRACTOF8ALE. 123 *IV BARTRAM v. FAREBROTHER. [*180] May 1, 1828. — E. 4 Bing. 5T9. Bng. Com. Law Reps., vols. 13, 15. Trover for thirty-eight hogsheads of ale. At the trial of the cause before Best, C. J., London sittings after Trinity Term last, the facts appeared to be as follows : — MuDgo Park had ordered ale of the plaintiff at Edinburgh, the invoice of which reached Park on the 29th October, 1826, when, being in insol- vent circumstances, he signified to his clerk that he would not have the ale, and desired him to direct Yincent, an attorney, to do what was necessary to stop the goods. November 2d, twenty-five hogsheads arrived, and on the 3d, Vincent wrote a notice to the wharfinger, at whose wharf they were to be landed, not to deliver the ales to the consignee. On the 4th, thirteen more hogsheads arrived; and on the 6th the whole were landed on the wharf. On the same day the plaintiff's agent wrote from Edinburg to the wharfinger, confirming the order not to deliver the ales to the consignee. On the 7th, Vincent sent the wharfinger another notice not to deliver any of the consignment. On the same day the defendant, sheriff of London, claimed the goods under an execution issued against Mungo Park, by Adam Park, his uncle, and left the warrant for seizure. On the 11th, another agent of the plaintiff demanded the whole, and — On the 13 th, the defendant, the sheriff, removed the ales under the execution. A verdict having been given for the plaintiff — Wilde, Serjt., moved to set it aside, and enter a nonsuit instead, on the ground that M"ungo Park had never rescinded his contract with the plaintiff, but had merely endeavoured to stop the goods in transitu, which was not effectually done ; first, because the transit was at an end ; and, secondly, because Vincent was not the agent of the plaintiff, the consignor, who alone had the power io stop, but of Park, the consignee. A rule nisi was granted, and — * Cross, Serjt., showed cause, contending that the contract was r:).iDi-i rescinded by Park's saying he would not have the goods, and L J the plaintiff's assenting to the stoppage ordered by Vincent; which assent, by ratification, made Vincent his agent for that purpose. He relied on Salte v. Field, 5 T. R. 211, and Atkin v. Barwick, 1 Str. 165. The Court here called on — Wilde to support his rule. He maintained that Park had done no- thing to rescind the contract, but had merely given an order to stop the goods J an order which could only be valid when given by a consignor. But the circumstance of his giving that order was such an assertion of dominion over the goods as showed them to be constructively in his pos- sesssion, and, consequently, the transit to be at an end. If he had re- voked the order, the plaintiff might have been compelled to complete the contract. 124 ROSS ON COMMBBOIAL LAW. Vincent was not the agent of the plaintiff; and though the plaintiff might by subsequent ratification adopt an act of Vincent's as against a party who had contracted with the plaintiff, yet he could not do so to the prejudice of third persons. The authority of Atkin v. Barwick had always been doubted. Per Chambre, J., in Eichardson v. Gross, 3 B. & P. 127 ; and Kenyon, 0. J., in Neate v. Ball, 2 East, 123. Salte V. Field was decided on the ground that there was no contract subsisting ; not that a subsisting contract had been rescinded. But in Smith V. Field, 5 T. K. 404, where the vendee wished to return the goods, and the vendor instituted an attachment to attach them in the hands of a packer, as the property of the vendee, it was considered as an election by the vendor not to rescind the contract ; and the vendee hav- ing since become a bankrupt, it was held that the vendor could not re- cover the goods from the packer in trover. And in Barnes v. Freeland, 6 T. K. 81, it was decided, that where a sale of goods has been com- pleted by actual delivery to the buyer, who afterwards becomes insol- vent, before they are paid for, he cannot rescind tha contract, and return the goods with the consent of the seller, so as to give the seller prefer- ence to his other creditors. rtlSOl *'^° Neate v. Ball, a trader to whom bags of wool were de- L -I livered pursuant to order, had, by the course of dealing, the op- tion of returning the wool for which he had no call, though previously ordered. Th* trader being from home when the bags were deliveredy on his return the same day, gave directions not to have then! opened or entered in his books, but only weighed off, to see that they agreed with the invoice ; he being then in embarrassed circumstances, and intending not to take them into the account of his stock, if in the event he found himself unable to pursue his business. Afterwards, being avowedly in- solvent, he returned the bags, with a letter to the merchants, declaring his situation, hoping that they would have no objection to take back the wool, and requesting the favour of a line in approbation ; the letter hav- ing been received, and the approbation given, after an act of bankruptcy committed on the same day, it was held, that by the trader's keeping possession of the goods so long, his option was gone ; that, being in a state of insolvency, he could not exercise the power of restoring the goods to the vendors, though without any fraudulent concert with them ; but that his assignees were entitled to the property. That was a stronger case in favour of the vendor than the present, because the vendee had, by custom, the right of returning such goods as he did not want; whereas there was no custom to warrant the return in the present instance. Best, C. J. — ^This is an. action against the Sheriff, for taking in exe- cution certain goods as the goods of Mungo Park, at the suit of one of M. Park's family. JSTow, when can an execution creditor take goods which his debtor has purchased ? When the contract between the ven- dor and vendee is complete. If the contract be only suspended, that is enough to prevent the execution creditor from taking. But the contract here was altogether put an end to. The goods had been sold by a per- son in Scotland. On the 3rd of November the vendee says, « I decline CONTRACT OF SALE. 125 having them ;" he then proceeds to effect his repudiation of the contract in a clumsy way, by telling his clerk to order Vincent to stop the goods ; but what he proposed and intended was, to get rid of the contract. This proposal, however, unless assented *to by the vendor, would not j-^, „„-. have suffered for the purpose ; but notice was given to the whar- L J finger on the 3rd, and on the 6th, one day before the goods were claimed in execution, the vendor agreed to the proposal. It has been asked, What would have been the consequence if the vendee had, revoked his order to stop the goods ? But it is suflScient for the present ease to say that it was not revoked, and that on the 3rd of November there was a clear intention to put an end to the contract. Now, without referring to cases, it is perfectly clear, that till the rights of third persons have intervened, contracting parties have a right to rescind a contract; and here, at the time the contract was rescinded, no such rights had intervened. But the point has been decided in Atkin v. Barwick. I do not go the whole length of the positions laid down in that case ; it is sufficient, however, if we should have decided in the same way, though not entirely for the same reasons. That was a case of bankruptcy, and it should be said for Pratt, C. J., that the doctrine touching matters done in contemplation of bankruptcy, was subsequently introduced into Westminster Hall. The case, however, was confirmed by Salte v. Field, where the property of goods bought by an agent for the vendee, and delivered by him to the vendee's packer, in whose hands they were attached by the vendee's creditors, was held to revest in the vendor, so as to avoid the attach- ment, by the vendee's having countermanded the purchase by letter to his agent, dated before such delivery, though not received till afterwards, the vendor assenting to take back the goods. That case was not decided, on the ground that no contract had existed. Lord Kenyon says — " It was in the power of the buyer and seller to put an end to the contract as if it had never existed; and it is stated that the proposition made by the purchaser to rescind the contract was acceded to by the sellers. That shows that the principle was, not that no contract had existed, but that a contract had been rescinded. Salte • V. Field, was recognised in Smith v. Field, where the decision was dif- ferent, because the rights of third parties had intervened; but Lord Kenyon took care not to impugn the principle established in Salte v... Field, saying, " In the former case of Salte v. Field, the Court went as far as they could to assist the sellers ; but *there both the buyer ^^^ „ . _ and seller agreed to rescind the contract before the bankruptcy." L ■'•"'* J- Each of the judges confirmed the decision in that case, and also in At- kin V. Barwick. Barnes v. Freeland does not shake the authority of the previous cases. Lord Kenyon says — " I cannot distinguish the pre- sent case from that of Harman v. Fisher on principle ; for this bank- rupt knew his insolvent situation at the time when he wished to deliver back the goods in question to the defendant, as well as Fordyce did in that case ; there, Fordyce finding that he was insolvent, was anxious to repay to the defendant some bills which the latter had lent him ; and though those bills were as easily distinguishable from the rest of his effects as the iron in question was from the rest of this bankrupt's pro> January, 1855. — 9 126 ROSB ON COMMEROIAIi LAW. perty, tbe Court there held, that it could not be dona, because it would prejudice the other creditors of the bankrupt. Thrte cases, however, have been cited and pressed upon us, as deciding the present; but I think they are to be distinguished from this. In Atkin v. Barwiok the vendees, finding that their affairs were in a declining condition, before the goods arrived at their house in Cornwall refused to accept the goods, and thereby refused to become parties to the contract of sale; and though when the goods did arrive by the wagon, the vendees could not turn them loose in the streets, yet they did what was tantamount to rejecting them, they sent them to a friend of the consignors for their use. In Salte v. Field, consider who was the party to the contract ; not the clerk of the vendee, who lived in London, but Dewhurst who was residing in New York; and he,. knowing his insolvent situation, sent orders a month before the transaction in dispute took place, to his clerk here, not to purchase any more goods for him. The clerk immediately on the receipt of this order, applied to the yendors to take the goods back again, who agreed to rescind the contract." Barnes v. Freeland was decided on the ground that the acts were done- in contemplation of bankruptcy; but in the present case there having been no bankruptcy, that principle does not apply. It has been argued that the goods in the present case were finally de- livered before the stoppage took effect ; but it has never been held that goods in the hands of a carrier or wharfinger have been finally delivered except r*18^n ^'^^''^ ^^^ wharfinger *has actually been the agent of the consig- L J nee ; and those cases have all turned on attempts to defeat a general body of creditors. In" the present case the goods were not in the hands of the vendee, nor were they stopped to defraud a general body of creditors ; there is no ground therefore for impeaching the ver- dict which has been given, and the rule must be discharged. Park, J. — Stoppage in transitu is a right conferred on meritorious persens, and is not, as it has been argued, a hardship on any one. With regard to the decision in Atkin v. Barwick, it was sanctioned in Harman v. Fisher, Cowp. 125, although some of the reasoning in the case was not agreed to. Salte V. Field came next. I argued the case, and did not succeed. It was determined that a contract had been entered into, and that it had been rescinded. In this all the judges concurred. In Smith v. Field, which followed shortly afterwards, the Court recognised the decision in Salte V. Field, but distinguished Smith v. Field from it, because the rights of third parties had accrued before the contract was rescinded. And in Barnes v. Freeland, where the preceding cases were all recog- nised, the Court said—" The contract here was not rescinded before the insolvency of the vendee. After the contract for the sale of the iron, it was actually delivered to the vendee, and put into his cellar, and he gave a bill of exchange for the payment of it ; then the contract was complete, and could not be rescinded by any subsequent act of the par- ties, so as to affect the interests of third persons." The question seems *o me clear in point of law and the rule must be discharged. BuRROTJQH, J.— The question is clear in point of fact, and that is the OONTEAOT OP-SALE. 127 chief thing in oases like the present. The goods were stopped before they were deliverefl to the vendee. CrASELEE, J., concurred, and the rule was Discharged. *The case of Smith v. Field, 5 T. E. 420, recognised the principle of r«iggi the judgment in the previous case of Salte v. Field. But in the subse- •- ^ quent case the seller, instead of accepting the offer made by the purchaser to rescind the contract, he instituted an attachment of the goods in the hands of a packer as the property of the purchaser. The purchaser having afterwards be- come bankrupt, the Court held that the seller's attachment of the goods must be considered as an election by him not to rescind the contract, and therefore it was found that he could not recover the goods. Lord Kenyon observed, — " When Dewhurst, the bankrupt, discovered his real situation, he acted as became an honest man : and it were to be wished that that, which he intended to do, could now be complied with ; but the interests of other persons intervene, the general mass of his creditors. The goods were delivered to Hill, as the agent of Dew- hurst, and treated by Hill as Dewhurst's property. In the former case, of Salte v. Field, the Court went as far as they could to assist the seller, but there both the buyer and seller agreed to rescind the contract before the bankruptcy. That case, therefore, as well as that .of AtMn v. Barwick, 1 Str. 165, proceeded on the ground of a renunciation of the contract by all the parties concerned. But in this case that circumstance, which differs it from the others, is wanting. On the 18th of May, Dewhurst's letter was communicated to the plaintiffs, and his situation ex- plained to them, but they declined rescinding the contract of sale, not indeed in words, but by an act incapable of being explained away; for on the next day they instituted a proceeding in the Sheriff's Court by attachment, in which they made an affidavit that Dewhurst was indebted to them for these goods, and they attached the goods as the property of the bankrupt. When the offer was made to them by Dewhurst, they might have rescinded the contract, but they declined doing it, and they treated it as a subsisting contract. They cannot therefore now insist that it was rescinded." Ashhurst, J. — "Though a contract may be rescinded by both the contracting parties, it is not in the power of one alone to do it. Here the vendee was desirous of rescinding the contract, but the vendors, whether by mistake of the law, or for what other reason it is not necessary to inquire, would not consent, but on the contrary affirmed the contract, and considered the goods as the property of the bankrupt. And in that circumstance consists the difference between the case of Salte v. Field, and the present." BuUer, J. — " The case of Salte V. Field, proceeded on a very clear principle. There the contract was re- scinded by both parties, while they had it in their power : but here, though Dew- hurst offered to restore the goods, the plaintiffs objected to the proposal. The plaintiffs were *iuformed of Dewhurst's situation, and of his offer; no r*jo7-| fact was concealed from them ; their act was founded on an ignorance of '■ ■' the law, but that will not assist them. The instant they made an affidavit that Dewhurst was indebted to them for these goods, it operated like a positive decla- ration by them that they did not rescind the contract." Grose, J. — "The true difference between this and the former case, is that which has been stated, namely, that there both the parties agreed to renounce the contract, whereas here the ven- dors refused to do so. 128 ROSS ON cjommeroial law. A DELIVEET ORDER PRESENTED TO AND ACCEPTED BY A WAREHOUSE- MAN, WHERE NOTHING REMAINS TO BE DONE BEFOR'E DELIVERING THE GOODS HELD BY HIM IN ORDER TO IDENTIFY THE SUBJECT OR ASCERTAIN THE PRICE, WILL DEFEAT THE SELLER'S RIGHT TO STOP IN TRANSITU, BUT OTHERWISE IF SOMETHING REQUIRES TO BE DONE BEFORE DELIVERY CAN BE GIVEN. BUSK V. DAVIS. Feb. 9, 1814.— E. 2 M. & S. 39T. Eng. Com. Law Reps., vol. 28. . Trover for flax. At tte trial before Lord Ellenborougli, C. J., at the London sittings after last Term, it appeared that the plaintiffs, in September, 1812, having about 18 tons of Riga flax then lying in mats, (and entered as mats,) at the defendants' wharf, sold a part of it, through the intervention of a broker, to one Bromer. The sold note was in the following terms : ^old on account of Busk and Co. 10 tons of Riga flax, marked PDR, at Davis's wharf, sound and of a merchantable quality, " ex" the Vrow Maria, at ^6118 per ton, the amount to be paid by the buyer's acceptance at three months from to-day, allowing six months and fourteen days' discount. Tare and draft as customary. London, 23cZ September, 1812. A few days afterwards the plaintiffs gave Bromer the following written order on the defendants, which was immediately sent by Bromer to the defendants, and entered in their books : — r*1881 *Messrs. Davis AND Co. L J Please deliver to Mr. D. Bromer or order ten tons Riga PDR flax " ex" Vrow Maria. Busk and Co. 23_5^1 7 Qct. J It is usual to allow 14 days .for delivery, during which time the sellers are liable for warehouse rent, and the purchaser afterwards. On the 17th of October, (after the 14 days had expired,) Bromer stopped payment, and the flax remaining at Davis's wharf in the same state as at the time of sale, the plaintiffs gave an order countermanding the delivery. Riga flax is usually imported in inats, varying in quantity from 3 to 5 or 6 cwt. The quantity is ascertained by being weighed by the wharfinger. The sale of 10 tons may require the flax mats to be broken, and tare and draft must.be deducted before the bill of parcels can be made out. The tare is allowed by the weight, for the weight of mat and ropes; 14 lbs. upon mats under 3 cwt., and 20 lbs. upon mats of 3 cwt. and over. Draft is 2 lbs! per mat. The plaintiffs had not received any return of the weight from the wharfingers. Under these circumstances his Lordship was of opinion that as an ulterior process of weighing was to be performed by the seller before the delivery could take place, the transfer of the property to the buyer was not complete, that process not having been performed ; and thereupon a verdict was found for the plaintiffs. CONTRACT OF SALE. 129 Parle obtained a rule nisi for a new trial, and relied on Harman v. Anderson, 2 Campb. N. P. C. 243; Whitehouse v. Frost, 12 East, 614; and Jackson v. Anderson, 4 Taunt. 24. Scarlett and Brougham showed cause, and contended that the sale was not so complete as to vest the property in Bromer, and preclude the plaintiffs from countermanding the order for delivery. This was a sale of a certain quantity of flax, the delivery of which was to be ascer- tained by weight, which weighing was to be done by the wharfingers as agents for the sellers, and until that was done, it remained in fieri what portion of the whole bulk was to be delivered, in order to satisfy p^, qq-, *the quantity sold. Therefore, though the price and quantity <- J were certain, yet the precise thing to be delivered was uncertain, and what remained to be done for ascertaining it was necessarily to precede the delivery; and so this case is governed by Wallace v. Breeds, 13 East, 522, and Hanson v. Meyer, 6 East, 614. In the former it was stated to be usual, after sale, for the cooper of the seller to search the casks of oil, and for the broker of both parties to examine them with a view to certain allowances, and then the casks were filled up by the seller : in the latter there was no doubt as to what was to be delivered, for it was a sale of all the starch, but the weighing was necessary to the ascertainment of the price ; and in both it was adjudged that these acts which were to precede the delivery were essential to complete the transfer, and that the property was not divested out of the vendors by the mere sale and order on the wharfingers to deliver, but that the vendors might upon the insolvency of the vendees, countermand the delivery. And in this case, if, after the sale, a fire had consumed the flax upon the defendants' wharf, according to Rugg v. Minett, 11 East, 210, the loss would not have fallen upon the vendee. As to Whitehouse V. Frost, there are the same circumstances of difference between the pre- sent and that case, that Lord EUenborough, C. J., pointed out between Wallace v. Breeds, 13 East, 525, and that case ; and his Lordship ardded that the Courts frequently laid hold of such circumstances to retain the property in favour of the unpaid seller. And if those two cases should be thought inconsistent with each other, it may be observed that Wal- lace V. Breeds is later, and was decided upon consideration of the former case. In Harman v. Anderson there could be no doubt that the transfer was complete, because no weighing was necessary to the delivery, nor was any allowance to be made, neither was there any uncertainty as to the precise thing to be delivered, but the delivery was symboli- cally executed as much as if the goods had been delivered into the party's own hands.-. Parle and Toddy contra, admitted the rule to this extent, that if anything remained to be done between vendor and vendee in order to complete the sale, the contract was still open ; *but they denied r^ign-i that such was the case here. And they rested their argument L J mainly on Whitehouse v. Frost, and the language of Le Blanc, J., in that ease, 12 East, 621, " that the objection only applies where • some- thing remains to be done as between the buyer and seller, or for the purpose of ascertaining either the quantity or price." Now here both 130 ROSS ON COMMERCIAL LAW. price and quantity, as it is admitted, were ascertained by the contract ; and nothing remained to be done as between the buyer and seller, although the wharfingers, before they could finally execute the order for delivery, were to ascertain it by weighing. Therefore, again in the words of Le Blanc, J., in the same case, " though something remained to be done as between the vendee and the persons who retained the custody of the flax, before the vendee could be put into separate possession of the part sold, yet as between him and his vendors nothing remained to perfect the sale." The weighing was not an ingredient in the contract, but was rather like the weighing in Hammond v. Anderson, 1 N. R. 69, for the satisfaction of the buyer ; whereas the case has been argued as if it were a sale not of an ascertained quantity, but of an unascertained number of mats to be ascertained by weighing. And Jackson v. Anderson, 4 Taunt. 24, as well as Whitehouse v. Frost, shows that an order for the transfer of part of an integral quantity will vest the property in that part, though it be intermixed with and not separated from the whole. The case of Hanson v. Meyer might have applied if the price here had been made to depend upon the weighing ; and so perhaps might Wallace v. Breeds, if the order for delivery there had been entered in *he wharfinger's books, but at the time of the countermand nothing had been done upon the order. Lord Ellenborough, C. J. — The question in this case is, whether the property has been so ascertained as to be considered in law as effec- tually delivered, the order to deliver having been given to the whar- fingers, and entered in their books. That would not of itself be suffi- cient unless the flax were in' a deliverable state, and if farther acts were necessary to be done by the seller to make it so. Here it appears that r*lQn f^'^^t'isr acts were necessary j for the flax was to be weighed, aiid L J #the portion of the entire bulk to be delivered was to be ascer- tained, and if the weight of any number of unbroken mats was insuffi- cient to satisfy the quantity agreed upon, it would have been necessary to break open some mats in order to make up that quantity. Therefore it was impossible for the purchaser to say that any precise number of mats exclusively belonged to him. If the weight did not divide itself in an integral manner, it would be necessary to break up and take some fraction of another mat. Every component 'part therefore was uncer- tain : it was uncertain how many gross mats there would be, or what fraction of a broken mat; for, as it has been suggested, any certain number of mats might fall short of the entire precise quantity of ten tons. That is only one circumstance to show that there was some uncertainty at the time of the contract, which was Jp be reduced to cer- tainty by something to be done afterwards, that is, by weighing, in order to ascertain the entire quantity. If then some farther acts were to be done in order to regulate the identity, and (if I may use such a phrase) the individuality of the thing to be delivered, I cannot say that it was^n a state fit for immediate delivery, and that the order to deliver entered in the wharfingers' books operated as a complete delivery. I think this case falls within the authority of Wallace v. Breeds, and that the delivery was incomplete at the time of the countermand. OONTRAOT OP BALE. 131 Lb Blanc, J. — The question is between the vendor and vendee. The difficulty arises from not keeping that correctly in view. The question is, whether everything has been done as between them to complete the delivery ; if not, the vendor had a right to countermand the delivery. The contract was for a specific quantity ; the price was ascertained ; the order for delivery had been sent to the wharfingers, and they had accepted and entered it in their books ; and fourteen days were allowed for the delivery, from which time the goods were to lie at the wharf at the charge of the vendee. But another thing was necessary to make this symbolical delivery equivalent to an actual delivery. It was to be ascertained what particular goods the vendee was to have. Now that is the point where this case is defective. The vendor had a much larger quantity, p»iqo-i *not lying together in one mass, but in several packages, which L J it was necessary to divide before it could be ascertained what part was his and what was to belong to the purchaser. Ten tons out of the 18 were to be delivered; and in order to do that it was necessary to ascertain how many mats or packages constituted the precise quantity of 10 tons, or what aliquot part of a mat or package ; which was to be done by the weighing of the wharfinger, who was the agent for this purpose of both parties. It was the same thing, therefore, as if the weighing had been to be performed by the vendor and vendee, or in their presence. Now that has not been done j and therefore the particular portion of the goods that was to belong to the vendee has not been ascertained as between them. This circumstance distinguishes the case from Whitehouse v. Frost, which has been most pressed in argument. And in all the other cases where something remained to be done to ascertain either the price, or quantity, or thing to be delivered, a symbolical delivery has been holden not to supply the place of an actual delivery. Here something was to be done, not to ascertain the price, or quantity, (though upon the quantity of mats and ropes would depend what was to be the allowance for tare and draft, but I lay that out of the • question,) yet something was to be done to ascertain the individuality. In Whitehouse v. Frost, the owner of a large quantity of oil in the mass sold a certain quantity of it to B., who contracted to sell the same to C. specifically as an un- divided quantity, and gave him an order upon the owner for the delivery, which order the owner accepted. The question that arose was not between the owner and B., but between C. and B., who, as far as it was in his power, had done every act to complete the delivery, for he only pretended to sell an undivided quantity. Therefore, whatever might have been the case as between the owner and B., the Court were of opinion that as between the subvendee and B. the sale was complete, B. having done all that could be done, as between them, to make the delivery effectual. Here it appears that all had not been done by both parties to ascertain what was to be delivered, and until that was done, the symbolical delivery left the transaction incomplete. *Baylet, J. — I am of the same opinion. In the case of rusioo-i* Whitehouse v. Frost, nothing remained to be done by the seller, L J and on that ground the decision of that case was founded. There the vendor sold an undivided l-4th part of the quantity. The Court must 132 ROSS ON COMMEROIAIiLAW. have proceeded on the rule laid down in' Rugg v. Minett, because that case had been recently decided, and they had it then before them. There the party bought a number of casks of turpentine, which were to be filled up by the vendor : all were filled up except ten, and the property df all those which were filled up was considerted as having passed to- the ven- dees ; but as to the others, that it remained in the vendor ; and the whole having been consumed by fire, that the ten casks continued at the vendor's risk, but not the rest ; and the reason was, that as to those nothing remained to be done on the part of the vendor, but as to the ten casks something still remained to be done. Here also it remained with the vendor to have the weight of the ten tons ascertained, and to say what specific mats were to be delivered. The purchaser had no right to point out the specific mats ; the sellers only had that option. Therefore, as something still remained to be done by the plaintiffs who were the sellers, and they had an option and election what mats they would set apart, they had a right to consider the contract as still incomplete, and to coun- termand the delivery. Dampiee, J. — Nothing remained to be done in order to ascertain the price or quantity, but it remained at the option of the sellers to ascer- tain what particular mats were to be delivered ; and that was to be as- certained by them by weighing ; which stood in the way of a complete delivery in fact, and hindered the symbolical delivery from being equiva- lent to an actual delivery. And unless there has been something equiva- lent to an actual delivery, the inclination of the Courts has been to hold the sale not complete. Rule discharged. r*1 94-1 *^' ^^ ^^^ "^^^ °^ Withers v. Lyss, 4 Campb. 231, a particular parcel of L ; J rosin in the possession of a warehouseman was sold at so much per hun- dredweight. The order given to the purchaser was in these terms : — " Please to weigh and deliver to Mr. D. Bromer or order our transparent rosin in matts, about 30 tons more or less." The order was lodged by the purchaser with the warehouse- man, but the rosin was never weighed, in consequence of the purchaser not hav- ing sent any person to see it weighed. On the insolvency of the purchaser the seller brought an action of trover against the warehouseman, and contended that till'the rosin was weighed the delivery was not complete, and the right to stop in transitu subsisted upon the insolvency of the purchaser. Gibbs, 0. J., observed, " Here something was still to be done to ascertain the price of the commodity. The rosin was sold at 13s, 9d. per cwt., and the quantity was uncertain. Therefore, till it was weighed, the bill of exchange by which payment was to be made could not be drawn. That being so, according to the decisions both of this Court and the Court of King's Bench, the delivery was not complete, and the right to stop in transitu subsisted. I think it makes no difference that the whole of the rosin was sold. The principle, I take to be, that while anything remains to be done to ascertain the price, the possession is not considered as transferred to the purchaser. Had the rosin been burnt in the defendant's warehouse without being .weighed, how could payment have been made according to the terms of the con- tract ? If nothing remains to be done to ascertain the price, I allow that a delivery order lodged with the warehouseman is a suflBcient transfer of the possession, although no entry for that purpose be made in his books. The order here is, ' weigh and deliver.' There could be no delivery under it without weighing, and the goods never were delivered to Bromer." OONTRAOT OF SALE. 133 2. Where the weighing or measnrement is not for the purpose of ascertaining the price or identifying the article sold, but merely for the satisfaction of the pur- chaser, the article being identified and the price fixed by the contract of sale, a delivery order presented to the warehouseman will pass tjie property to the pur- chaser, and defeat the seller's right of stoppage in transitu. In the case of Swan- wick V. Sothern, 9 Ad. & Ellis, 895, the subject sold was a quantity of oats in a particular bin, and the delivery order was in these terms : — " Deliver Mr. G. Mar- den 1028 12-48 bushels of oats, bin 40, 0. W., and you will please weigh them over and charge us the expense." The original purchaser, after presenting his order to the wharfinger resold the oats to a third party, and gave him an order in simi- lar terms to the one he had received from the original seller. This second order *was also entered in the books of the wharfinger, but before delivery of r*i 95-1 the oats the original purchaser became insolvent, and the question raised '■ ' •' was, Whether the original seller was entitled to stop in transitu ? Lord Denman, in delivering the judgment of the Court, observed, " The question in this case turns upon the construction of two delivery orders. The oats were all that were in bin 40. They were transferred to the plaintiff in the defendant's books, but never weighed over. The plaintiffs had accepted a bill for the price which they duly honoured. On the original purchaser's failure the original seller sought to stop them, and the only question is, whether weighing over was in this case ne- cessary in order to vest the property in the plaintiffs, and defeat the stoppage in transitu. Neither of the contracts of sale were given in evidence. The cases on this subject establish the principle, that wherever anything remains to be done by the seller which is essential to the completion of the contract, a symbolical de- livery by transfer in the wharfinger books will not defeat the right of stoppage in transitu as between buyer and seller. Hanson v. Meyer, Sheply v. Davis, Busk v. Davis, abundantly show this. Therefore if part of a bulk be sold, so that weigh- ing or separation is necessary to determine the identity or individuality (as Lord Bllenborougli expresses it in Busk v. Davis) of the article, or if the whole com- modity be sold, but weighing is necessary to ascertain the price, because the quan- tity is unknown, the weighing or measuring must precede the delivery, and the symbolical delivery without such weighing will not be sufficient. But where the identity of the goods and the quantity are known, the weighing can only be for the satisfaction of the buyer, as was held in Hammond v. Anderson, and in each case the transfer in the books of the wharfinger is sufiScient. We are of opinion that the present case is of the latter description, and that this properly passed as between buyer and seller. We have therefore no occasion to resort to the doc- trine of estoppel, which is strongly enforced in Hawes v. Watson, but we do not mean in so saying to cast any doubt upon the authority of that case." *WHERE GOODS HAVE BEEN RE-SOLD BY A PARTY HAVING A ,.,„„, DELIVERY ORDER, AND THE SUB-VENDEE HAS PRESENTED L J THE ORDER TO THE WAREHOUSEMAN, AND IT HAS BEEN ACCEPTED BY HIM, THE ORIGINAL SELLER'S RIGHT TO STOP IN TRANSITU IS BARRED, EVEN ALTHOUGH THE GOODS MAY HAVE REQUIRED TO BE WEIGHED OR MEASURED OVER BEFORE DELIVERY, AND THAT HAD NOT BEEN DONE BEFORE THE BANKRUPTCY OF THE ORIGINAL PURCHASER. HAWES V. WATSON. Jan. 28, 1824.— E. 2 B. & 0. 540. Eng. Com. Law Keps., vol. 9. Trover for a quantity of tallow. Plea, not guilty. At the trial before Abbott, C. J., at the London sittings after Michaelmas Term, the following facts were prored for the plaintiffs. The plaintiffs, on the 134 ROBS ON COMMERCIAL LAW. 25th September, 1823, purchased by contract, of Messrs. Moberly and Bell, 300 casks of tallow, at 40s. per cwt. On the 27th September, in part execution of their contract, Moberly and Bell sent to the plaintiffs the following transfer note, signed by the defendants, who were whar- fingers : — " Messrs. J. and B. Hawes, we have this day transferred to your account (by virtue of an order from Messrs. Moberly and Bell) 100 casks tallow, ex Matilda, with charges from October 10th, 1823. H. and M. 100 casks." The plaintiffs then gave Moberly and Bell their acceptance for J2,880, the price of the tallow, which was duly paid, and afterwards sold 21 casks of this tallow, which the defendants delivered, pursuant to their order. Moberly and Bell stopped payment on the 11th October, and on the 14th the defendants received notice from Kaikes and Co., the original vendors of the tallow, not to deliver the remaining casks to Moberly and Bell, or their order ; and the defendants, in consequence, refused to deliver the remainder of the tallow to the plaintiffs, upon their demanding the same. On the part of the defend- ants it was proved, that Moberly and Bell, on the 26th September, had purchased of Raikes and Co. 100 casks of tallow (the same that were afterwards sold to the plaintiffs) landed out of the Matilda, lying at Watson's wharf, at £2, Is. per cwt., to be paid for in money, allowing 2i per cent, discount, and fourteen days for delivery ; and on the same day Kaikes and Co. gave a written order upon the defendants to weigh, r*1 Q71 •i^li'i^fir, transfer, or re-house the tallow. *Moberly and Bell had L J not paid for the same, nor had it been weighed subsequently to this order. Upon these facts it was contended at the trial, on the part of the defendants, that they were not bound to deliver to the plaintiffs the remaining 79 casks of tallow, inasmuch as Raikes and Co. Lad, as between them and Moberly and Bell, a right to stop them in transitu, the delivery to Moberly and Bell not being perfect, inasmuch as the tallow had not been weighed. The Lord Chief Justice, however, was of opinion, that whatever the question might be as between buyer and sel- ler, the defendants having, by their note of the 27th September, acknow- ledged that they held the tallow on account of the plaintiffs, could not now dispute their title ; and the plaintiffs had a verdict. The Attorney- General now moved for a new trial, upon the ground taken at the trial. Hanson v. Meyer, 6 East, 614, is an authority to show, that the absolute property in the tallow would not vest in Moberly and Bell, the first vendee, until it was weighed. The contract in that case was in terms similar to the contract made between the original ven- dors and Moberly and Bell. The weighing must precede the delivery, in order that the price may be ascertained. In that case, too, part of the goods had been weighed and delivered, yet it was held that the ven- dor might retain the remainder, which continued unweighed in his pos- session j and Shepley V. Davis, 5 Taunt. -617, is also an authority to the same effect. Abbott, C. J. — The plaintiffs, in this case, paid their money upon the faith of the transfer note, signed by the defendants, by which they acknowledged that they held the tallow as their agents. If we were now to hold, that, notwithstanding that acknowledgment and that payment, CONTEAOT OF SALE. 135 the plaintifiFa are not entitled to recover, we should enable the defendants to cause an innocent man to lose his money. To hold that the doctrine of stoppage in transitu, applied to such a case as the present, would have the effect of putting an end to a very large portion of the commerce of the city of London. Batley, J. — This appears to me very different from the *ordi- [*198] nary case of vendor and vendee. In such cases, justice requires that the vendee shall not have the goods unless he pays the price. If he cannot pay the price, the vendor ought to have his goods back ; but if the question arises, not between the original vendor and the original vendee, but between the original vendor and a purchaser from the ven- dee, that purchaser having paid the full price for the goods, what is the honesty and justice and equity of the case ? Surely, that the vendee, who has paid the price, shall be entitled to the possession of the goods. I am of opinion, that when Messrs. Baikes and Co. signed the order to transfer, weigh, and deliver, that, according to the settled course and usage of trade, enabled Moberly and Bell to sell the goods again. There are many cases in which it has been held, that if the first vendor does anything which can be considered as sanctioning the sale by his vendee, that destroys all right of the former to stop in transitu. Stoveld v. Hughes, 14 East, 308 ; Harman v. Anderson, 2 Campb. 243. HoLBOYD, J. — I think that the note given by the defendants makes an end of the present question. When that note was given, the tallow became the property of the plaintiffs, and is to be considered from that time as kept by the defendants as the agents of the plaintiffs, and the latter were to be liable from the 10th October for all charges. This case is very different from that of Hanson v. Meyer. There, there was a sale of all the vendor's starch, (the quantity not being ascertained,) at £6 per owt. The order was to weigh and deliver all the vendor's starch, and a part having been weighed and delivered, but not the residue, the main question before the Court was. Whether the weighing and delivery of part did or did not in point of law operate as a transfer of the property as to the whole ? The Court held, rightly, that it did not, because there the price of the whole which was to be paid for by bills could not be ascertained before it was weighed. The delivery of part, therefore, was not a delivery of the whole, but the order was complied with only as to the part which was weighed and delivered^ and the property in the resi- due remained unchanged until something further was done. It was not a delivery of part for the whole, *and therefore it did not operate ™^ „„-, in law as a delivery of the whole so as to divest the vendor of L -J his right to stop in transitu ; but here, the wharfingers upon the receipt of the order directing them to weigh and deliver, sent an acknowledgment that they, the wharfingers, had transferred the goods to the vendees, and that they would be considered as subject to charges from a certain period. I think, therefore, that the wharfinger then held the tallow as the goods of the plaintiffs and as their agents, although there was not any actual weighing of them j and that the plaintiffs were then in pos- session by the defendants as their agents, they having acknowledged 136 EOSS ON COMMERCIAL LAW. themselves as such by their note. For theSe reasons I am of opinion that the plaintiffs are entitled to recover. Best, J. — I am also of opinion, that the acknowledgment which has been given in evidence puts an end to all questions in this case. The very point has already been decided in the case of Harman v. Anderson, 2 Campb. 243. There the wharfinger had transferred the goods to the name of the vendee, and actually debited him with warehouse rent, but having become insolvent, the sellers gave notice to the wharfingers to retain the goods ; and upon an action of trover being brought against the wharfingers by the assignees of the vendee, it was contended that the seller's right to stop in transitu continued ; but Lord Ellenborough said, « that the goods having been transferred into the name of the purchaser, it would shake the best established principles, still to allow a stoppage in transitu. From that moment the defendants became trustees for the purchaser, and there was an executed delivery, as much as if the goods had been delivered into his own hands. The payment of rent in these cases is a circumstance to show on whose account the goods are held; but it is immaterial here; the transfer in the books being of itself deci- sive." In the ensuing term, the then Attorney-General (afterwards Lord C. J. Q-ibbs) expressed his acquiescence in the decision at Nisi Prius. In that case, indeed, it does not appear that, in order to ascer- tain the price it was necessary to weigh the goods, but in a subsequent case of Stonard v. Dunkin, 2 Campb. 844, it was expressly held by r*90m ^^^^ Ellenborough, that a warehouseman, who, on receiving *an L -I order from the seller of malt, to hold it on account of the pur- chaser, gave a written acknowledgment that he so held it, could not set up as a defence for not delivering it to the purchaser; that by the usage of trade, the property in malt sold was not transferred till it was re-mea- sured, and that before the malt in question was re-measured, the seller became bankrupt ; and there Lord Ellenborough says, " whatever the rule may be between the buyer and seller, it is clear the defendants cannot say to the plaintiff, ' the malt is not yours,' after acknowledging to hold it on his account. By so doing, they attorned to him." It appears to me, too, that if we consider the principle upon which the right of stoppage in transitu is founded, it cannot extend to such a case as the present. The vendee has the legal right to the goods the moment the contract is executed, but there still exists in the vendor an equitable right to stop them in transitu, which he may exercise at any time before the goods get actually into the possession of the vendee, provided the exercise of that right does not interfere with the rights of third persons. Now it appears to me impossible, that it can be exercised in this case without disturbing the rights of third persons, for the property has not only been transferred to the purchaser in the books of the wharfingers, but there has been an acknowledgment by them, that they hold it for the purchaser, who has paid the price of it. It has been said that there has been no change of property. If there has not, I do not see how there can be any until the tallow is actually melted down and converted into candles. If the argument on the part of the defendant's be valid, the vendor, if he is not fully paid, has a right if the goods are not OONTRAOT or SALE. 137 weighed, to stop in transitu, even though they have passed through the hands of a hundred different purchasers and heen paid for by all except the first. It appears to me, that we should disturb an established prin- ciple if we held that this could bo done in such a case as the present. I think the right of stoppage in transitu is an equitable right to be ex- exercised by the vendor, only when it can be done without disturbing the , rights of third persons. Here that cannot be done, and therefore I think that Eaikes and Co. had not any right to stop in transitu, and the plaintiffs are therefore entitled to recover. Rule discharged. *I. The case of Harman t. Anderson, 2 Campb. 243, was an action of r»2on trover for 460 casks of butter, at the instance of the assignees of the •■ J purchaser against the wharfinger, in whose warehouse they were lying at the date of the sale. Along with the invoice the bankrupt received from the sellers an order to deliver the goods, which he lodged with the defendants. The defend- ants thereuJ)on transferred the goods in their books to his name, and actually debited him with warehouse rent. Immediately after the_ goods had been so transferred, he became insolvent, and the sellers gave the defendants notice to hold the goods on their account. A commission of bankruptcy being sued out against the purchaser, the plaintiffs as his assignees demanded the goods of the defendants, but they delivered the whole of them back to the sellers. For the Defendants it was argued — They were justified in doing so, on the ground that the seller's right to stop in transitu subsisted at the time of Dudley's insolvency. The goods remaining with the wharfingers could not be considered as delivered to him, and he had never exercised any act of ownership over them. The wharfingers were rot his agents, but the agents of the sellers. No such effect as determining the right to stop in transitu could be ascribed to the transfer in the wharfinger's books, without entirely altering the law upon this subject; as it almost invariably happens that goods sent by a carrier are booked in the name of the consignee, and goods are made deliverable to the purchaser in almost every bill of lading. The PiAiNTiFPS argued — In the case of Hurry v. Mangles, 1 Campb. 452, it was held, that if goods when sold remain in the warehouse of the vendor, and he receives warehouse rent for them, this amounts to a delivery of the goods to the purchaser, BO as to put an end to the vendor's right of stopping them in transitu. Here, rent had been charged by the defendants to the purchaser from the time they transfer- red the goods into his name. There is a clear difference between the case of a carrier and that of a warehouseman or wharfinger like the defendants. While the goods are in the hands of the carrier, they are still in transitu; but when they come to the warehouseman or wharfinger who finally holds them for the real owner, they have reached their destination, and the transit is at an end. Lord Ellenborough, " The goods having been transferred into the name of the purcha- ser, it would shake the best established principles, still to allow a stoppage in transitu. From that moment the defendants became trustees for the purchaser, and there Was an executed deli very as much as if the goods had been delivered into his own hands. The payment of rent in these cases is a circumstance to show on whose account the goods are held ; but it is immaterial here, the transfer in the books being of itself decisive. I am *clearly of opinion that the r^oooi assignees are entitled to recover." There was a verdict for the plaintiffs. '■ -■ In the ensuing term, the Attorney-General, for the defendants, expressed his acqui- escence in the direction of {he judge at Nisi Prius; but moved to reduce the da- mages, on an aflSdavit, stating, that as to one parcel of the butters, no transfer had been made in the defendants' books to the bankrupt before the bankruptcy. In respect to this parcel, the facts were, that Dudley having received the delivery note from the vendor, sent it to the defendants, in whose warehouse the goods were lying; and that they neither made any transfer in their books to his name, nor did anything to testify that they accepted the delivery note or held these goods on his account. There had been no delivery therefore of this parcel, and the 138 BOSS ON OOMM£ROIAL LAW. right of stopping in transitu still subsisted when the vendor interfered. Lord Bllenborough, — " After the note was delivered to the wharfingers, they were bound to hold the goods on account of the purchaser. The delivery note was suf- ficient, without any actual transfer being made in their books. From thenceforth, they become the agents of Dudley, the bankrupt. They themselves might have a lien on the goods, and be justified in detaining them till that was satisfied ; but as between vendor and vendee, the delivery was complete, and the right to stop in transitu was gone." The other judges concurred, and a rule to show cause was refused. 2. Where the seller does not furnish the purchaser with any written evidence of his title to the article sold, a re-sale by the purchaser will not destroy the ori- ginal seller's right of stoppage in transitu. In Craven v. Ryder, 6 Taunt. 433, the articles sold were received on board of a vessel for and on account of the sellers. After the sale, the original purchaser had re-sold the articles, and the master of the vessel, without the' seller's privity, delivered to the sub-vendee a bill of lad- ing for the articles as being shipped by him. The original purchaser having stopped payment, the seller reclaimed the goods from the master of the vessel, who refused to deliver them. In the course of the trial, the lighterman proved that he had adopted a more precise form in his receipts granted to the sellers, for the express purpose of giving the shipper a command over the goods till the light- erman's note was, according to the usual course of trade, given up in exchange for the bill of lading. The jury found that the receipt given to the original sel- ler was restricted, and that nothing had been done by them to alter their right of possession of the goods. It was afterwards moved on the part of the defendant, to set aside the verdict, and enter a nonsuit, but the Court refused to grant a rule. Gibbs, 0. J., observed, — " Exclusively of the particular form of the receipt for the gobfls, I take it the practice is, that the person who is in possession of the light- erman's receipt is the person *entitled to the bill of lading, which ought [*203] to be given only to the holder of that receipt, consequently the holder of that receipt retains a control over the goods, at least until he has exchanged the receipt for the bill of lading." 3. A delivery order presented to a wharfinger which he is not bound to obey, and which is not accepted by him, will not prevent the seller exercising his right of stoppage in transitu. In Lackinton v. Atherton, 8 Scotts' N. B. 38, the goods sold were warehoused in the West India Docks in the name of the importer who sold them, and the purchaser re-sold them, and gave a delivery order to the sub- purchaser. The Dock Company declined to act upon this order, and required the order of the importer in whose name the goods were warehoused ; but before an order from the importer could be obtained, the sub-purchaser became bankrupt. The Court held that his assignees were not entitled to maintain trover for the goods, and that the original purchaser of the goods was not barred by the deli- very order given by him from intercepting the delivery. Tindal, C. J., observed, — " This is an action brought by the assignees of Messrs. Paul and Son, bank- rupts, to recover the value of certain deals purchased by the bankrupts before their bankruptcy, but not paid for; and the question is, Whether, upon the facts that appeared in evidence, they were stopped by the vendor before delivery ? It appears to me that the stoppage did take place before the deals reached the hands or possession of the vendees. In order to prevent an uiipaid vendor from inter- cepting goods or stopping them in transitu, there must have been a delivery either actual or constructive. . Now, here it is not suggested that there was an actual delivery ; the sole question therefore is, Was there a constructive delivery ? The only ground upon which it can be contended that there was a constructive deli- very, was, that on the 12th of October, 1839, the bankrupts obtained from the defendant an order upon the Dock Company to deliver the deals to them. If that delivery order had been signed by Tindal, the importer by whom the deals were originally deposited with the Company, and in whose name they were still held by them, all would have been clear ; there would then have been a constructive delivery of the goods to Paul and Sou, ami would have vested the property in them, and their assignees, the present plaintiffs, might have maintained trover for them. But the order appeared to have been signed by Congreve and Atherton, persons who, so far as the Dock Company was concerned, were strangers to the goods I and the question is, Whether it was a document that the Dock Officers were bound to obey ? They were neither the servants nor agents of Congrevfl and Atherton, but of Tindal, by whom the deals were deposited with the Com- OONTRAOX OP SALE. 139 pany, and in whose name they stood in their books ; *and therefore it r*2041 was in effect the delivery of that which was no order at all. I am L -■ unable to distinguish the case in principle from Dixon v. Yates, 5 B. & Ad. 313; 2 N. & M. lYT, though in some of its circumstances it differs from that case, it clearly falls within the doctrine the Judges there laid down. On the part of the plaintiffs it was contended that the defendant is estopped by the delivery order — that it does not lie in bis mouth to say that he was not in a situation to be able to give a valid order. If the situation of the bankrupts had been at all varied in interest by the omission of the defendant to procure a proper delivery order, the case might have had a different aspect. But they had not paid for the goods. Their assignees are standing upon a strict point of law. I am of opinion that the nonsuit is right." Ooltman, J; — " I am of the same opinion. The only case in reality relied upon by the plaintiffs is Harman v. Anderson, 2 Campb. 243. As to Withers v. Lyss, 2 Oampb. 237, the point there decided was altogether different ; and the case is only material in so far as it recognises the authority of Harman r. Anderson. Neither has Lucan v. Dorien, 1 Taunt. 278, 1 Moore, 29, any bearing upon this case; the question did not arise there upon the vendor's right to stop in transitu. Harman v. Anderson undoubtedly shows that an order upon a wharfinger, though not acted upon, is binding on the party by whom it is given. But the ground of that is, that the order is one that the wharfinger is bound to obey ; and he becomes the agent of the person to whom he is directed to deliver, or for whom he is directed to hold the goods. Here, however, the order signed by Congreve and Atherton was wholly inoperative to constitute the Dock Company the agents of Paul and Son. As therefore there was no actual delivery of the deals to the bankrupts, and they were not held by any agents of theirs, there was no delivery either actual or constructive so as to deprive the unpaid vendor of his right to stop them in transitu. The only ground upon which the plaintiffs rest their claim is, that the issuing of the order by Congreve and Atherton operates as a kind of estoppel, and that it is not competent to the defendant to say that that order was not duly made. But in general such an estoppel, is not allowed to prevail unless the situation of the party has been changed. That is not the case here : the goods were not paid for by Paul and Son ; they gave a bill, which turned out to be mere waste paper. I am therefore of opinion that the defendant is not estopped from saying that the property in the goods did not in point of law pass to Paul and Son by that delivery order." 4. Where the seller has the goods in his own warehouse, a delivery order to the purchaser will not deprive the seller of his right of lien if the purchaser be- come bankrupt before the goods *are removed from the warehouse. In x^nuT Townley v. Crump, 4 Ad. & Ell. 58, the seller gave the purchaser a deli- ■' very order in these terras : — " We hold to your order 39 pipes red wine, and marked, &c., rent free, to 29thj November next." In an action of trover at the instance of the bankrupt's assignee, it was proved at the trial that the invariable mode of delivering goods sold while in warehouses in Liverpool, was by the ven- dor handing to the vendee delivery orders, but evidence was not admitted to prove that the order in question was equivalent to an accepted delivery order, and it was not proved that the sellers had made any transfer in their books. Lord Abinger, C. B., held that no sufficient delivery was shown to divest the seller of his lien, and observed, that the giving of an invoice or bill of lading does not take away the right to stop in transitu, if there has been no actual delivery of the goods, and he directed a nonsuit, giving leave to move to enter a verdict for the plaintiff for the value of the wine. In disposing of the motion, that such a verdict might be entered or a new trial granted, Lord Denmau, C. J., delivered the judgment of the Court, refusing the motion, and after referring to the custom proved at the trial with respect to delivery orders, observed, — " There was a total failure of ptoof, that where a vendor who is himself the warehouse- man, sells to a party who becomes bankrupt before the goods are removed from the warehouse, the delivery order operates by reason of this custom to prevent a lien from attaching, and I think it is not contended that there is any general usage which could divest this right in such a case upon the insolvency of the vendee. Cases have been'icited, but none where the qaestion arose between the original vendor and vendee." 140 ROSS ON COMMEROIArj LAW. WHERE A SELLER ASSENTS TO A SALE BY THE ORIGINAL PURCHASER TO A SDB-VENDEE, HIS RIGHT OF LIEN AND OE STOPPAGE IN TRANSITU ARE THEREBY LOST. STOVELD V. HUGHES. June 28, 1811.— E.- 14 East, 308. In trover for timber, which was tried before the Lord Chief Baron in Sussex, in the summer of 1810, it appeared that the timber was origi- nally the property of the defendants, and was lying at their wharf at Moat Bridge on the 25th of November, 1809, when it was sold by them r*9nfi1 *'* ^' ^°^ ■^' ■'^i^<"'> ^^^ ^^^ *thereupon jointly marked by the L J servants and agent of the defendants and the Dixons with the letters W. H. D., and with a private mark of the latter, in the presence of the defendants, who then said that they would send the timber to Shoreham. The price to be paid by the Dixons was £1027, and their agent gave the , defendants bills to that amount, at the usual credit in this trade of three month. A small quantity of the timber was soon afterwards forwarded by the defendants to ^gypt wharf, (which is a stage for delivery when it is to be carried to London,) and another small quantity was forwarded by them to Shoreham wharf. The rest remained at Moat Bridge wharf, and was sold some time early in December by tha Dixons to the plaintiff, who paid them for the same. Between the 16th and 29th of December, (for the witnesses differed as to the day,) Wilkinson, the plaintiff's agent, came to Moat Bridge wharf, with a notice from the Dixons to deliver the timber to the plain- tiff. Wilkinson there saw Hughes, one of the defendants, whom he , informed that the plaintiff had bought the timber of the Dixons ; to which Hughes answered, that it was very well, and that he would go out with him and show him the timber : they accordingly went on the wharf, where Wilkinson found the timber before marked by the Dixons, on which he put the further mark of W. S., the plaintiff's initials ; and some of the timber was thus marked in the presence of the defen- dant Hughes. Wilkinson then told Hughes to send no more of the timber to the Dixons, to which Hughes made no objection. The timber was not proved to have been measured on the part of the plaintiff, but he had given Wilkinson an account of it, which Hughes compared with his own account of it, and it was found that they agreed. It appeared further, that the Dixons were suspected by the plaintiff to be in a failing condition early in the month of December ; and on the 4th of January, 1810, Hughes said to the plaintiff, that the time of payment (meaning of the Dixons' bills to the defendants for the price of the timber'^ was coming round, and that he must see the Dixons upon it ; otherwise he must come to the plaintiff, as he understood that he had bought it : on which the plaintiff told Hughes that he had settled with the Dixons, who had got bills for the amount j and that he was apprehensive CONIRAOI OF SALE. 141 *the defendants would not be paid. The defendants' bills from r^nn'j-i the Dixons were in fact dishonoured, and the defendants claimed L J to stop in transitu as well the timber which had been sent forward to JSgypt and Shoreham wharfs, which he had given notice to the respec- tive wharfingers not to deliver to the plaintiff, as that part 'which still remained at Moat Bridge wharf; the whole of which timber at each place had been sold bj the Dixons to the plaintiff, and marked by him in the manner before stated. A formal demand of the timber was made by the plaintiff on the defendants at Moat Bridge wharf on the 5th of *March, who refused to deliver it; and on thq 5th of April another demand was made of them to draw down the remainder of the timber to the barges, when an offer was made to pay the wharfage, if any were due ; but the defendant Hughes said that no wharfage was due, and refused to part with it. The wharfingers of ^gypt and Shoreham wharfs proved that parts of the timber had been delivered there by the defendants on account of the Dixons ; but the plaintiff's mark was on it as well as that of the Dixons : and the Shoreham wharfinger after- wards used some of it by the permission of the plaintiff, and was to pay him for it : but he had before had the leave also of the Dixons to use some part, and they had told him that they should send for the rest to forward it to London. The wharfingers afterwards received notice from the defendants not to deliver }t. The question made at the trial upon the whole of the evidence was, Whether there was such a delivery of the timber by the defendants to the Dixons, as would prevent the defendants from stopping it in transitu against the vendee of the Dixons ? and a verdict passed for the plaintiff, by the direction of the Lord Chief Baron, for £1027, the value of the timber; his Lordship relying principally on the part-delivery of the timber which had been made by the defendants on account of the Dixons at .^gypt and Shoreham wharfs ; and on the notice to the defendants of the sale by the Dixons to the plaintiff, to which the defendants had made no objection : and considering the contract to be entire, and the bills re- ceived by the defendants from the Dixons to have been received for the whole ; that the possession of a part by the Dixons under that entire *contract and payment, and the implied assent of the defendants r,nnoi to the sale made by the Dixons to the plaintiff, bound the defend- L J ants to deliver the remainder of the timber to the vendee of the Dixons ; although the greater part of it still remained on the wharf of the defend- ants, and the Dixons' bills had ultimately been dishonoured. A new trial was moved for in last Michaelmas Term, when the Court recommended, if the parties could agrcie upon the facts, to state them in a special case ; but this, not having been settled, the question before made, as to the defendants' right to stop the goods in transita, now came on to be argued upon the Judge's report. Garrow and D' Oyley showed cause against the rule, and contepded that the circumstances of the case showed an actual delivery of tbe tim- ber by tbe defendants to the Dixons, the original vendees, in tbe first instance, and afterwards to the plaintiff, tbe sub-vendee ; either of which would bo sufficient to sustain the action : and that the defendants, after January, 1855. — 10 142 ROSS ON COMMERCIAL LAW. such actual delivery, had no lien on the timber for the price, nor any right to stop in transitu. After the sale to the Dizons, the timber was taken possession of by them, through the agency of their servants, who,- in the presence and with the assistance of the defendants' servants, put the marks of the Dixons upon the pieces ; which was as complete a delivery by the vendors, and a taking possession by the vendees, as the subject- matter, a bulky commodity, would admit of. A part of it was afterwards forwarded to Shoreham, the original intended place of destination, and another part to iEgypt wharf, by the orders of the Dixons, dealing with it as their own ; having before given bills for the whole at the usual credit. But further, the vendees dealt with it as their own, by making a sale of it to the plaintiff, the sub-vendee ; and this with the knowledge of the vendors, and without objection by them. This brings it within the case of Chaplin v. Rogers, 1 East, 192, where after a bargain and sale of a stack of hay between the parties on the spot, the vendee having sold a part of it to another, who took such part away, was held to be evidence of such an actual possession taken of the commodity by r*9fiQi ^^^ original vendee of the whole, *thus acting with it as his own L -^ upon the delivery of the original vendor, as to take the case out of the statute of frauds. [Lord Ellenborough, C. J. — The change of mark from A. to B. on bales of goods in a warehouse, by the direction of the parties, was clearly held by the House of Lords, in a late case, to operate as an actual delivery of the goods ; and this, after three days' argument at their Bar : though I own it appeared to me that the case only required to be stated in order to be disposed of at once.] Here too the plaintiff's agent, after the sale to him was made known to the defend- ants, put his mark upon the timber in the presence of one of the defend- ants, without any objection made by him at the time. They also referred to Hodgson V. Le Bret, 1 Campb. 233, and Anderson v. Scott, 14 Bast, 235, at the sittings before Lord Ellenborough, C. J. ; where the mark- ing of goods, by purchasers, at the time of the contract between the par- ties, was held to be a delivery and taking possession by the vendees, so as to take the case out of the statute of frauds ; though in fact the goods remained for some time afterwards under the care of the vendors. [Lord Ellenborough, C. J. — I presume that the* cases of Hodgson v. Loy, 7 T. R. 440, and Hanson v. Meyer, 6 East, 614, will be cited by the de- fendants' counsel to show that a part-payment for, or part-delivery of goods, will not divest the vendors' right to stop in transitu, or their lien on the remainder : but in the one, there was no possession taken by the vendee ; and in the other, something more remained to be done before th(e contract was complete.] In Slubey v. Heyward, 2 H. Bl. 504, a part-delivery to the sub-vendee under a bill of lading upon the arrival of the ship, was held to put an end to the trandtus, as equivalent to a tak- ing possession of the whole by such sub-vendee. And this case is also governed by Ellis v. Hunt, 3 T. R. 464, where the assignee of the ven- dee putting his mark on the goods, while they were at the inn in their way to the vendee, was held to be a taking possession by the assignee, which prevented any subsequent stopping in transitu. Marryat, contra, contended, that the oases which had been deter- OONTRAOT OP SALE. 143 mined upon the statute of frauds, where the only question was whether there had been a binding contract of sale, did not *conclude the riuii-i ot right of stopping in transitu ; which, admitting the contract of L J sale in the first in^anoe, gave the vendor an equitable right to repossess himself of the goods, upon the insolvency of the original vendee, at any time after the goods were in fact out of his possession in their way to the vendee, and before the vendee had actually or constructively taken a possession of them exclusive of the vendor. In Ellis v. Hunt, and most of the other oases where a constructive possession had been taken by the vendee or his representative, the goods had been put in transitu by the vendor, and were in the actual possession of carriers and other middle persons, who might be considered as the common agents of both parties : the goods had also arrived at the end of their journey : but here the greater part of the timber cpntinued unpaid for in the hands of the original vendors, upon the credit of the original vendees, and there- fore, upon their insolvency, the vendors had a right to retain so much of the timber as remained in their possession, and to stop in transitu that which was in the progress of actual delivery to the vendees, but had not reached its ultimate destination. After a contract of sale, the right of retaining or of stopping in transitu only arises upon the insolvency of the original vendees; and no transfer of their right to another, while the contract is still executory, and before the veildees or their assigns have obtained a possession of the goods distinct from and exclusive of the pos- session of the vendors and of the middlemen employed in the transit, can prevent the vendors from retaining or repossessing themselves of the goods in their own possession or in transitu. While the goods are in the hands of middlemen, as carriers, wharfingers, warehousemen, and the like, an order to them from the vendors, to deliver to the vendees, is an executed delivery, and puts an end to the transit as between those parties. So where the subject-matter of sale was one entire thing, the disposal by the vendee of any part of that thing, and a separation of such part from the remainder, showed a distinct and exclusive possession in fact of the property by the vendee thus dealing with it, because he could not have possessed himself of a part without taking possession of the entire subject-matter. But all those cases are distinguishable from the present. Here the subject-matter of *the contract was divi- p^^, , , sible in its nature, and was in fact divided at the time of the L J sub-sale to the plaintiff; for before that time a part of the timber had been sent off by the defendants to Shoreham, the first intended place of destination for the whole; and another small part to JEgypt wharf, which appeared to have been destined to London. Then with respect to the supposed assent of the defendants to the sub-sale to the plaintiff from the Dixon s; the first notification of the transfer was made to the defend- ants between the 16th and 29th of December, which was before the known insolvency of the Dixons, and therefore the defendants then had no right to interfere, either to prevent the marking of the pieces by the plaintiff's agent, or even to his taking them away, and thus making it an executed delivery. One of the defendants, therefore, saying that it was very well, could not affect their legal or equitable rights in the eveat 144 E08S ON COMMERCIAL LAW. which afterwards happened, and out of which their right to stop the goods arose. They had done no act to induce the plaintiflF to purchase from the Dixons, nor were they parties to the transaction. The defend- ants might reasonably suppose, as nothing was said to the contrary at that time, that the plaintiff had purchased of the Dixons upon the usual credit; and therefore there was nothing to call upon the defendant Hughes to give any other answer than what he did ; it not being then ascertained that the Dixons' bills would not be paid ; it was not till the 4th of January that the plaintiff disclosed to the defendants that he had already paid for the timber. LoitD Ellenborough, C. J. — The defendants were the only persons who could contravene the sale and delivery to the plaintiff from the Dixons ; and when that sale was made known to the defendant Hughes, before the 29th of December, he assented to it, by saying very well, and to the marking of the timber by tne plaintiff's agent, which took place at the same time. If that be not an executed delivery, I know not what is so. Then all inquiry, as to what happened after the 29th of Decem- ber, is beside the purpose. It signifies nothing what was the ulterior destination of the goods after an executed delivery. If, indeed, the mark- ing of the timber by the plaintiff's agent at Moat Bridge had not been r*912T "^""^ ^''^ ^^^ knowledge and consent *of the defendants, the L J vendors, it may be admitted for this purpose, that they would not have been bound further than they were already bound by what had taken place as between them and the original vendees : but by what had passed on or before the 29th, the defendants recognised the transfer of the property to the plaintiff, and from that time a new person became , liable to them for the wharfage. Grose, J. — There was an express assent by the defendants to the transfer of the property from the Dixons to the plaintiff. Lk Blano, J. — The plaintiff having given notice to the defendants that the Dixons had sold the property to him, and his then marking them as his own, made an end of the transit, and the defendants could no longer retain or stop the timber. Baylet, J. — It is clear that, after the defendants' assent to the transfer from the Dixons to the plaintiff, and to the marking "of the timber by the plaintiff's agent, the defendants could no longer stop it in transitu. Kale discharged. .PARTIAL DELrVEUT, WHERE THERE APPEARS NO INTENTION TO SEPA- RATE THE PART DELIVERED FROM, THE REST, WILL BE HELD EQUIVA- LENT TO DELIVERY OP THE WHOLE, AND WILL THEREBY PUT AN END TO THE TEANSITUS, BUT OTHERWISE IP A SEPARATION OF THE PAET DELIVERED FROM THE REMAINDER APPEAR TO BE INTENDED. I. — SLUBEY v. HEYWARD.. May 6, 1795.— E. 2 H. Bl. 504. , In this action of trover for a quantity of wheat, a special verdict was 'found at Guildhall; which stated, CONTRACT OF SALE. 145 That 7061 bushels of wheat, the property of the plaintiffs) on the 23rd of January, 1793, at Baltimore in Maryland, were *shtpped r*oiQ-i by them on board a ship called the Pomona, by the order and L J for the account of George and Henry Browne, to be paid for by the said George and Henry Browne at a future day. That the defendant, Hey- ward, on the same day and year at Baltimore, being then the master of the said ship, signed five bills of lading, whereby he acknowledged the said 7061 bushels of wheat to have been shipped on board the said ship, and undertook to deliver the same at the port of Cork, or a market to the said George and Henry Browne, or their assigns. That one of the said bills of lading, afterwards and before the arrival of the said ship and cargo at Waterford hereafter mentioned, was transmitted by the said plaintiffs to the said George and Henry Browne, .and the said George and Henry Browne afterwards, on the 7th of March, 1793, sold the said 7061 bushels of wheat to Claude Scott, and thereupon indorsed the said bill, thereby ordering an4 directing the master of the said ship to deli- ver the said 7061 bushels of wheat to the said Claude Scott or his assigns, and delivered the same bill of lading so indorsed to the said Claude Scott, together with an invoice of the cargo of the said ship, and at the same time drew four bills of exchange on the said Claude Scott, payable three months after date, for several sums of money, mentioned in the said bills of exchange, the amount of and as and for the price of the said wheat, which said bills of exchange thq said Claude Scott accepted and duly paid. That the said Claude Scott afterwards, and before the arrival of the said ship and cargo at Falmouth after-mentioned, indorsed and delivered the same bill of lading to the two other defend- ants, the Foxes, thereby ordering and directing the master of the said ship to deliver the said 7061 bushels of wheat to those defendants, with an intent that they, as the agents of the said Claude Scott, should and might on his account receive and take possession of the said 7061 bush- els of wheat. That the said ship, with the said wheat on board, soon after the making the said bill of lading, sailed from Baltimore, and on the 5,th of March, 1793, arrived at the port of Waterford in Ireland, the course of the ship towards Cork having been changed on account of her having been chased by a French privateer ; and that the said ship, with the said wheat on board, afterward proceeded from Waterford to Fal- mouth, *by the orders of the said George and Henry Browne, rjjcoi j-i given by them to the said defendant Heyward in that behalf, at l -I the request of the said Claude Scott, and arrived at Falmouth on the 3rd of April, 1793. That on the 4th of April in the same year, at Falmouth, the defendant Heyward reported the said ship at the Custom- house there, and made oath that the said wheat was for tjhe said other defendants, the Foxes, and the Foxes, on the 5th of April in the same year, made entry of the said wheat at the Custom-house at Falmouth in their names as agents of the said Claude Scott. That 800 bushels of the said wheat were taken out of the said ship, by the defendants the Foxes, and received and taken into their possession as such agents of the said ClSiude Scott, and for his account between the 3rd and 8ih of April. That the said George and Henry Browne, on the 5th of April, 1793, 146 ROSS ON COMMEKOIAL LAW. became bankrupts, and that they had not at that time, nor at any time since, paid th« plaintiflfs for the said wheat, and that the said plaintiffs, on the 8th of April, 1793, gave notice to the defendant Heyward not to deliver the residue of the said wheat to the other defendants, the Foxes, and requested the said Heyward to deliver the residue of the said wheat to them, the plaintiffs, and offered to pay him the freight and all other charges due on account of the said cargo, but the said Heyward would not deliver the said residue of the said wheat to the said plaintiffs, and afterwards, and before the commencement of this action, delivered the same to the said other defendants, who had converted and disposed thereof to the use of the said Claude Scott. But whether, &c. On behalf of the Plaintiffs, Le Blanc, Serjt., argued in the following manner: — The only question appears, to be, Whether there be anything in the finding of the jury which distinguishes this case from that of Lickbarrow v. Mason ? That case having been so recently and so fully discussed, it is not now necessary to agitate the question how far a bill of lading is a negotiable instrument ; it is sufficient for the plaintiffs that they appear upon the' face of the special verdict entitled to maintain the action. The contract was between the shippers of the goods and the r*9i c-i master of the vessel. Suppose *the shippers had, before the I- -I sailing of the ship, required the master to unload, and give back the cargo to them, could the master have refused, and given at his elec- tion a right to another person to receive it ? If he could not, neither could he legally deliver the wheat in the present instance to the Poxes, after having had notice from the shippers not to deliver it; he was there- fore a wrong-doer, and guilty of a conversion. The cargo is found to have been the property of the plaintiffs, to be paid for at a future day by the consignees or their assigns, and before the delivery, (for it cannot be contended that a delivery of part of a divisible cargo was a delivery of the whole,) the consignees became bankrupts. The case, therefore, at least as far as it relates to the residue of the goods undelivered, comes immediately within the authority of Lickbarrow v. Mason, which, as it was decided in the Exchequer Chamber, affirms the right of stopping goods in transitu ; and that decision was not overset in the House of Lords, where the case went off upon a venire de novo, leaving the mate- rial'points undetermined. The only difference between the case is this, that in Lickbarrow v. Mason the action was brought by the indorsees of the bill of lading against the assignees of the consignees, but in the pre- sent case by the owners against the indorsees. Marshall, Serjt., contra, stated four questions which he meant to argue. 1. What right passes by the indorsement of a bill of lading ? 2. Whe- ther the consignor, after the indorsement of the bill of lading for a valu- able consideration, may stop the goods in transitu ? S. What shall.be deemed an end of the transitus ? 4. Whether, when part of the goods have been delivered to the indorsee of the bill of lading, the master of the ship is justified in delivering the residue, after notice from the con- signor not to deliver it? But the Court desired him to confine himself to the two last questions, the case of Lickbarrow v. Mason having, in the different stages of it, exhausted all argument on the two first. OONTRAOT OF SALE. 147 Marshall accordingly began by laying down this proposition, viz., that the transilut was at an end before the notice was given by the plaintiflFs to the master of the ship not to deliver the goods to *the agents p^„-. „-, of Scott. There must be some period of time when the trandtus L J is ended, and that period is when the goods are absolutely or construc- tively come to the possession of the consignee. Here it is stated that the ship arrived at Falmouth on the 3d of April, 1793, that on the 4th the master reported her at the custom house, and there made oath that the wheat was for George and Robert Fox; that on the 5th he entered it in their names as agents of Scott, and that between the 3d and the 8th of that month 800 bushels were taken out of the ship, and received into their possession. Now, before any part of the cargo could have been carried out of the ship, the whole must have been delivered on board to the agents of Scott j when bulk is once broken, and any part delivered, it is a delivery of the whole to the consignee, who thereby acquires a constructive possession of the whole. Suppose after this any part of the wheat had been stolen from the ship, the indictment must have laid it as the property of Scott. Suppose any damage done to it, or any part of it taken away, who must have brought the action ? The master could not, for he had sworn it to be the property of Scott's agents; the con- signors could not, for the master, their agent, had pronounced it to be the property of others. Suppose the duties unpaid, to whom would Government have resorted? Surely to the persons whom the master had declared on oath to be the owners. In Blakey v. Dimsdale, Cowp. 661, the Court held, that if goods are bought by sample to be delivered at a future day, and earnest paid, a delivery to the vendor's servant to carry to the vendee, is a delivery to the vendee, and vests the property in him, and that the unloading part of the goods is an actual, and not merely a constructive delivery. The last question is. Whether the master of the ship was not justified in delivering the 800 bushels to the agents of Scott, and whether Scott, by the possession thus obtained, did not acquire a perfect title ? Little more is necessary for the decision of this question than to examine the form of the bill of lading, which is an acknowledgment by the master that he has received the goods on board, to be delivered according to the consignment, and concluding that any one being accomplished, the others shall be void. Now, when the master has *delivered the ^^„^tj^ goods according to the tenor and directions of any one of the L -> bills, he has performed his contract, and the rest of the bills are void. But it is stated in the special verdict that the plaintifis on the 8th of April gave notice to the master not to deliver the residue of the wheat to the agents of Scott, and requested him to 'deliver it to them, and ten- dered the freight and other charges, but such a notice could not authorize the master to depart from his solemn contract to deliver the goods to the consignee or his assigns. Even if another bill of lading had been presented to him, instead of the notice on the 8th of April, when part of the cargo had been delivered, he would have had his option which of them he should accomplish. This appears from the evidence of the merchants in Fearon v. Bowers, 1 H. Bl. 364, who agreed, « that where 148 ROSS ON OOMMERCIAL LAW. there are several bills of lading, the captain may deliver the goods to whom he thinks proper ;" and from the direction of Lord Chief Justice Lee, who told the jury, " that the captain was not concerned to examine who had the best right on the different bills of lading. All he had, to do was to deliver the goods upon one of the bills of lading," and there- fore directed them to find for the defendant. If then the master were justified in delivering the residue of the goods to the agents of Scott, after the notice from the plaintiflFs, Scott acquired a legal possession as well as a legal title : and it was admitted ' at the trial, and it is to be inferred from the special verdict, that he had a right to retain all that was legally delivered to him. Supposing, therefore, that the goods might have been stopped in transitu, the transitus was at an end ; all the cargo was, if not actually, at least constructively in the possession of Scott, and he having fairly obtained that possession, his title was complete. Le Blanc, Serjt., in reply. In all the cftses that have occurred re- specting the right of stopping in transitu, the question has arisen after the arrival of the ship in port, the transitus therefore cannot be ended by that event, nor indeed by anything short of an actual delivery of the goods. In the case of Blakey v. Dimsdale, the question was not as to the right of stopping the goods in transitu, but whether trespass could be [*218] maintained by the vendee after earnest paid and delivery. *That case therefore cannot afiect the present. A lien, though it ori- ginated in equity, is now considered as a legal right, and consequently a court of law will entertain a suit to enforce it. And that right could not be taken away by an entry at the custom house in the name of the consignee. The Couet (after some conversation upon the case of Lickbarrow v. Mason, which, not being material to the point in question, it js not necessary to repeat), were of opinion, that under the circumstances of this particular case, the action could not be maintained, for the transitus was ended by the delivery of the 800 bushels of wheat, which must be taken to be a delivery of the whole, there appearing no intention, either previous to or at the time of the delivery, to separate part of the cargo from the rest. Judgment for the defendants. il — HAMMOND V. ANDEESON. June 18., 1804.— E. 1 Bos. & Pul. 69. Trover for 130 bales of bacon. The cause was. tried before Sir James Mansfield, C. J., at the Guildhall Sittings after last Easter Terra, when it appeared that Messrs. Pinncll and Co. having sold the bacon in question to James Gadsden for £798, 7s. Sd., to be paid for by a bill at two months, on the 5th of March last weighed, the same, and left an order with the defendant, at whose wharf the bacon lay, to deliver it to James Gadsden or his order; that on the 9th of the same month Gadsden weighed the whole of the bacon, and took away 25 bales, leaving OONTEACT OP SALE. 149 the remainder at the defendant's wharf; that on the 10th, Messrs. Pin- nell and Co. having heard that G-adsden was insolvent, gave an order to the defendant not to deliver the remainder of the bacon to Gadsden, together with an undertaking to indemnify him against the consequences ; that Gadsden soon after became a bankrupt, and that the plaintiffs being chosen assignees under this commission, demanded the bacon *of r^n-i n-i the defendant, who refused to deliver it; that by the custom of L J the trade, where the goods sold continue to lie at the wharf after the sale, the charges of warehousing are always borne by the vendor for 14 days from the sale, at the expiration of which time, and not before, they are entered in the books of the wharfinger in the name of the vendee. A verdict was found for the plaintiffs, with liberty to the defendant to move that a nonsuit might be entered. Accordingly, a rule nisi for entering a nonsuit having been obtained. Best and Praed, Serjts., were this day called upon by the Court to sup- port the rule. Though the property in the goods was completely trans- ferred to the vendee by the sale, yet the possession continued in the ven- dor. So long as the vendor continued to pay for warehousing, the ware- house must be considered as his own. The case therefore stands pre- cisely upon the same grounds as if the vendor had sold the goods lying in his own warehouse, and the vendee after taking away a part had be- come insolvent; in which case the right of the vendor to retain the re- mainder would be unquestionable. Before the sale it is clear that the warehouse of the wharfinger was the warehouse of the vendor, and as the vendor by the custom of the trade continued to pay for the warehousing after the sale, there is no reason why it should not still be considered in the same light. This^ therefore, is not a case of stoppage in transitu, nor do the decisions upon that subject in which the vendee has put an end to th^ transitus by exercising acts of ownership, apply to this. Nor is it like the case of Slubey v. Heyward, 2 H. Bl. 504, where the delivery of part of a cargo was considered such a delivery of the whole as to pre- vent the right of stopping in transitu, since the ship in that case seems to have been chartered by the consignees themselves ; but the present case is more like that of Northey v. Field, 2 Esp. N. P. Cas. 613, where the vendee having neglected to pay the duties upon wines consigned to him, they were lodged in the King's stores for the purpose of being sold, unless the duties and charges of warehouse room, &c., should be paid within three months, and Lord Eenyon held, that while the wines continued in the King's stores the. right of stopping in transitu re- mained. *SxR James Mansfield, C. J., (stopping Shepherd, Serjt.) r^ooni The right of stopping in transitu is a favourable right which the L J courts of law are always disposed to assist. But I do not know how to distinguish this from the case before decided in this Court. The whole quantity of bacon was sold at one price by a bill payable at two months, and an order given to deliver it. On the 9 th of March the whole was weighed and twenty-five bales sent away : the rest remained at the wharf and in the custody of the defendant. So much having been taking away, and. the whole weighed by the bankrupt, it is insisted that the bankrupt 150 ROSS ON COMMERCIAL LAW. had taken possession of the whole. It is not disputed that the whole be- came the property of the bankrupt at the time when the order was given. But it appears that by the custom of the trade the vendor gives a sort of indulgence to the vendee, by continuing to pay the warehouse room for 14 days after the sale. Except in this respect, however, the vendor has no more concern with the goods sold than a stranger. The question is, Whether it be not too late for the vendor to claim any part of the goods on account of the bankruptcy of the vendee ? As to those bales which were sent away, the bankrupt had taken actual possession, and therefore no question can arise ; and when it is admitted that he had taken posses- sion of a part, how can it be said that he had not taken possession of the whole ? The price was entire ; and the whole to be paid for by one bill. On a former occasion this Court decided that, where a part of the goods sold by an entire contract was taken possession of, the vendee had taken possession of the whole. However equita,ble therefore the claim of the vendor may be in this case, it appears to me that he was too late to take advantage of it. It is of greater consequence that the law should be as uniform as possible, than that the equitable claims of an individual should be attended to ; and as I cannot distinguish this case fr^m that which was before decided in this Court, I think that the verdict must Heath, J.— I am of the same opinion. Though the goods continued in the warehouse of the defendant. after the sale, they were no longer in the possession of the vendor for any purpose whatsoever. The jury was r*22n °^ opinion that the payment *of ware-hous6 room by the vendor L J was a mere indulgence given to the vendee. The contract being entire, and part having been taken away, the privilege of stopping in transitu eould not attach. KooKB, J. — The facts of this case are too strong to be got over. . The whole of the goods was paid for by one bill ; a general order was given for the delivery of the whole, and the purchaser under that order went and took away a part ; how could he more effectually change the pos- session ? Chambre, J. — The privilege of stopping in transitu appears to me to have been carried far enough. It certainly creates an inequality among the creditors, by giving a preference to one over the rest. However, I have no objection to the privilege itself, provided it be confined within proper bounds. But was there not here a complete delivery of the goods ? The payment of the warehouSe-room by the vendor cannot make a difference. The vendor of course charges just so much more as will pay the expense of the warehouse-room. If the expense had been paid by the vendee, it would not make a delivery at the wharf a delivery to him. Nor can the vendor avail himself of the circumstance of the ex- penses being paid by him to prevent a delivery to the vendee from ope- rating as such. This is a much stronger case than that of Slubey v. Heyward, which proceeded upon the principle that a delivery of part where the contract was entire was a delivery of the whole. But here there was an actual delivery of the whole. There the person who made the delivery, delivered a part only out of the ship. But here the bank- OONTEAOT OF BALE. 151 rupt had actual manual possession of every article, and having weighed them all he took upon himself to separate them. It seems to me, there- fore, to bo perfectly clear that the original vendor had no claim, and that the verdict is right, Bule discharged. *In Tanner t. ScotcU, 14 M. & W. 28, the seller gave the wharfinger, r#2221 who had possession of the goods, an order to weigh and deliver them to i- J the purchaser. The goods were accordingly weighed by the wharfinger, and an account of the weight sent to the seller, who made out an invoice in favour of the purchaser. The purchaser afterwards sold some of the goods, and the part sold was delivered by the wharfinger to the sub-pnrchaser on the order of the original purchaser — the rest continuing to remain with the wharfinger. On the banltruptcy of the original purchaser, the original seller reclaimed the portion of the goods in possession of the wharfinger, and thereafter the assignees of the bankrupt broughtan action on the case against the wharfinger for the non-delivery of the goods. The Court held that the wharfinger never stood in that relation to the bankrupt, so as to be liable to an action on the case by him forthe non-delivery of the goods to his order; and, farther, that the seller's right of stoppage m (rarasto was not determined by the part delivered to the sub-purchaser. Pollock, 0. B., observed, — "In this case, upon look- ing into the authorities, we are all agreed that the delivery of part of the goods was not intended to be, and did not operate as a simple delivery of the whole, but was a separation for the purpose of that part only, leaving all' the rest in statu quo ; and therefore the only remaining point on which the Court had any doubt being cleared up to the satisfaction of my learned brothers, there will be no rule. The first and leading case on the subject is that of Slubey v. Heyward, 2 Bl. 504, in which a part delivery was considered as putting an end to the riglit of stoppage in iramitu. That was nothing else, in truth, than the delivery of the whole cargo; each part was taken away with the intention to take possession of the whole, not to separate the part that was delivered from the remainder. Lord Tenterden says, in the case of Bunney v. Poyntz, 4 B. & Ad. 571; 1 Nev. & M. 229, that that was the delivery of part of the cargo, made in the progress of and with a view to the delivery of the whoft; because you could not take the whole of the cargo at one time, but must take hogshead by hogshead, or sack by sack, as the case may be. If there was no intention to separate the particular part delivered from the re- mainder, that incipient delivery, so to speak, that inchoate delivery, will amount to a determination of the right to stop in transitu. Before the time of the decision in Slubey v. Heyward, 2 H. Bl. 504, the subject of stoppage in transitu had not undergone the great consideration it has of late years; and hardly anything was held sufficient to determine the right, unless there was an actual taking possession by the purchaser himself, by going and weighing the commodity or otherwise, and so taking manual possession of it. In all the subsequent cases in which part *deliveries have been held not to be sufficient to prevent the right of stop- rj^nqai page, (there are several of them,) the vendee meant to separate the parl^ -' delivered from the remainder, and to take possession of that part only, and in most of them the vendor concurred in that act. I may observe that Taunton, J., in the case of Betts v. Gibbons, 2 Ad. & Ell. 57 ; 4 Nev. & M. 64, made an obser- vation which is very justly questioned by Mr. Smith, in his book on mercantile law, viz., that " a partial delivery is a delivery of the whole, unless circumstances show that it is not so meant." Mr. Smith appends a query to that dictum, and with very great reason. It will be found that the only two cases, so far as I have looked at them, which bear the semblance of an authority that a mere part de- livery is sufficient to put an end to the right of stoppage in transitu, are these : Slu-bey v. Heyward, and Hammond v. Anderson, 1 N. R. 69. In the case of Bun- ney V. Poyntz, part delivery of a portion of a haystack, with intent to separate that from the remainder, was held not to be sufficient. In Jones v. Jones, 8 M. & W. 431, on the other hand, this Court held that the vendee (who was assignee under a trust-deed) took possession of part of the cargo, with the intention of ob- taining possession of the whole, for the purposes of the trust, and therefore that such taking possession of part did not put an end to the transit; but it was fully admitted in that case, that the mere delivery of part to the vendee, when he meant 152 ROSS ON COMMERCIAL LAW. to separate that part from the remainder, did not put an end to the right to stop in transitu. The same doctrine is laid down in Miles v. Gorton, 2 C. & M. 504 ; and in Dixon v. Yates, 5 B. & Adol. 313 ; 2 Nev. & M. 111. There the vendee toolt samples, coopered and marked the casks in which the goods were, and sold them to diflferent purchasers, one of whom obtained possession of a part ; and yet it was held that the lien of the unpaid vendor still subsisted. Here, it is true, there is a general order to deliver to the vendee's order the whole commodity, which means either the whole, or any part, if the vendee chooses to select a part, intending to select that part only ; and in such case, the delivery of that part only, does not operate as a delivery of the whole. If the vendee takes possession of part, not meaning thereby to take possession of the whole, but to separate that part, and to take possession of that part only, it puts an end to the tramitut only with respect to that part, and no more ; the right of lien and the right of stoppage in transitu on the remainder still continue. Besides the cases I have referred to, I have no doubt others may be found in which this doctrine is clearly established. The whole, in truth, depends on the intention of the vendee. We are of opinion, therefore, that the verdict In this case la right, and that no rule should be granted. r*2241 *^^'^'^'^^^ PAYMENT OP THE PRICE DOES NOT DEFEAT THE SEL- LER'S RIGHT OP STOPPAGE IN TRANSITU. HODaSON V. LOY. Nov. 23, 1797.— E. 7 T. R. 440. In trover to recover the value of 138 1 firkins of butter, which was tried at the ' last assizes for the county of Cumberland before Kooke, Justice, a verdict was found for the plaintifiFs for £.322, subject to the opinion of the Court upon the following case: — The plaintiffs claimed, as assignees under a commission of bankrupt against Edward Ward, dated the 25th of March, 1797. In the beginning oT February, prior to his bankruptcy, the bankrupt who was a butter merchant, residing in Cumberland, purchased sixty firkins of butter of one Cowper, at 41s. per firkin, and paid one halfpenny earnest. It was originally agreed that Ward was to pay ii640 of the purchase money in cash upon the Tuesday se'ennight following the contract, and on which day the butter was to be delivered ; the £40 was not paid on the day specified, but on that day Ward purchased of Cowper 44^ other firkins of butter, making in all 104i, and Cowper being indebted to Ward in the sum of £20, Ward in addition to that sura paid him £30 more on account of the butter, and having promised to send him a bill of £100, he afterwards did so; but that bill when it became due was not paid. On the same day that the latter contract was made with Cowper, Ward purchased of one Wil- son 34 firkins of butter, and both Cowper and Wilson agreed to deliver the butter to one Golding a carrier, who said on his examination that he eairied it on Edward Ward's account to be forwarded by him to Stock' ton in its way to London. And at the same time Ward desired thafthe butter might be marked with the initials C. W., (meaning Christopher Ward, his brother in London,) to whom he usually sent his butter con- signed for sale on his own account, and which initials the bankrupt had constantly used for seven years upon such consignments. The butter was accordingly delivered on the appointed day by the vendors, to Gold- CONTRACT OF SALE. 153 ing the carrier, who was desired by the bankrupt to *forward r^oo^-i the butter as usual to one Wilkinson, the wharfinger usually L J employed by the bankrupt at Stockton, to be by him shipped for Lon- don. When the butter was delivered to G-olding the carrier, he entered it in his book and way-bill in the name of Edward Ward, and carried it on Ward's account; and the vendors told him Ward was to pay the car- riage. Golding the carrier carried the firkins as far as Bowes, and there delivered them to one Savage, another carrier, who received no other instructions but from the way-bill, which only shows from whom they come, and from that he knew what to do with them. He proceeded with them to Stockton, and they were delivered by him to Wilkinson the wharfin- ger, who had frequently received butter on Ward's account for the pur- pose of carriage, and who had general directions from E. Ward to send to 0. Ward in London. Wilkinson, when he received the 138J- firkins in question, understood that he received them on E. Ward's account, and immediately on their arrival wrote a letter to E. Ward acknowledging the receipt of the butter, and also one ,to G. Ward to acquaint him of the same fact, and of the name of the ship by which they were to be forwarded to London. Before the butter reached London, C. Ward and E. Ward both stopped payment and became bankrupts ; and the defend- ant, as agent for Cowper and Wilson, got possession of the butter on its arrival in the River, and upon a demand made on behalf of the plain- tiffs refused to deliver it, saying he was indemnified by Cowper and Wil- son, and admitting that he had sold it for the price for which the dam- ages were assessed. In June last Cowper tendered to the plaintiffs the bill for £100 which had been given by B. Ward to him, and the money which he had received, but the plaintiffs refused to receive the same. Park, for the Plaintiffs, admitted that where goods were bargained for, to be delivered at a distant place, the contract was ambulatory till the delivery ; according to what was said by Ashhurst, J., in Lickbar- row V. Mason, 2 T. K. 71. But here, he contended, that the vendor could not stop the goods in transitu. First, Because there was a de- livery to the vendee or his agent. Second, Because there^ had been a part payment *for the goods. Third, Because there was an ante- rjitonfj-i cedent debt from the vendor to the bankrupt, for which the L -J bankrupt had a lien in equity on the goods; and which sum at any rate ought to have been tendered, as well as the money immediately advanced on the goods. First, The delivery of the goods to G-olding the carrier, according to the terms of the contract, by the direction of the bankrupt, was a delivery to the bankrupt himself. It is stated in the case that Golding received them on the bankrupt's account. In order to defeat the vendor's right of stopping in transitu it is not necessary, as^ was holden in Ellis v. Hunt, 7 T. R. 71, that the goods shall come into the actual possession of the vendee. That case turned on the fact of the provisional assignee under the vendee's commission, having taken pos- session of the goods while in the warehouse of the inn, where the car- rier put up, by fixing his mark upon them. Now here the bankrupt's mark was upon the goods at the time they were delivered to Goldiug as his special agent. It was holden in the present Term, upon a motion 154 ROSS ON OOMMERCIAt LAW. for a new trial in a case of Fowler and another, assignee of Hunter and Co. V. M'Taggart and Co., 3 East, 396, tried before Grose, J., at Bris- tol, that a delivery of goods into a ship chartered by the vendee, who afterwards became a bankrupt, was a delivery to him, so as to defeat the vendor's right to stop in transitu ; though it might as well have been contended there that the delivery was only for the purpose of convey- ance to the place of their destination. But further, there was a delivery of the goods by the particular direction of the bankrupt to Wilkinson at Stockton, who (the case states) was usually employed by the bankrupt, aiid who was acting under general instructions from him to receive such goods and forward them to his brother in London. Therefore supposing that the possession of G-olding in the first instance, might be considered as common to both the parties, yet Wilkinson, to whom a special de- livery was made by the order of the bankrupt, cannot be considered as a common agent between them ; and that distinguishes this case from others which may be cited. Secondly, Here is a part payment, in which case the right of stopping in transitu cannot attach all. For it is clear that the vendor can have no right to reclaim such part of the goods for r«997T ^^'"'^ ^^ "^^s actually received the *value ; and as the contract is L -I entire, no appointment can be made, and therefore the part pay- ment must be binding • upon the whole, and cannot be applied to any specific parcel. Besides the vendors had seized the whole. After goods . have been sold, though the vendors are not bound to accept less than the full value, yet if they agree to accept a part of payment, the con- tract can only be rescinded by mutual consent : something is required to be done by both parties for that purpose, namely, the re-delivery of the goods on one side, and the re-payment of the money advanced on the other. The fact of a part payment has been considered as excepting the case out of the general right of stopping in transitu. In Wiseman V. Vandepnt, 2 Vern. 203, which was the first case in Chancery of the kind, the rule was laid down that the vendors might stop in transitu, the vendees having paid no money for the goods. So in the case of the assignees of Burghall v. Howard, 1 H. Bl. 365, n.. Lord Mansfield said that he had known it several times ruled in Chancery, that where the consignee becomes a bankrupt, and no part of the price has been paid, the consignor may seize the goods before they come into the hands of the consignee. Thirdly, Supposing the right of stopping in transitu still to remain in the vendor, yet the right itself being founded on equi- table principles must be exercised according to the justice of the particu- lar case, which cannot be done without putting the vendee in the same situation as he would have been in supposing he had continued solvent; in which case, in the present instance, besides setting oflF the money already paid on the goods, he would have a right to set off the antece- dent debt due to him from one of the vendors to the amount of ^220, of which sum a tender ought also to have been made ; and for which he had a lien in equity on the goods. In Wiseman v. Vandeput, 2 Vern. 204, the Court, in the decreeing for the vendor's right to stop in tran- iitUf also decreed that an account should be taken if anything were CONTEAOT OF SAIE. 155 due from them to the vendees, and if so, that that should first be paid to them. Chambre, contra First, Here was no such delivery to the bankrupt as was sufficient to divest the vendor's right to stop in transitu. The delivery to Goldingin the first instance, and *afterwards that by rjisooQ-i him to Savage, and by Savage to Wilkinson, were all deliveries L -■ made to them in the capacity of common carriers, and not as private agents of the bankrupt. They were respectively made for the purpose of forwarding the goods, and for no other purpose. The circumstance of the bankrupt's desiring Golding to carry the goods to Wilkinson as usual cannot vary the nature of the agency. It was only in affirmation of the purpose for which the vendors had before made the delivery to Golding. Supposing this conversation even to amount to the appoint- ment of Wilkinson as a special carrier named by the vendee, that would not alter the vendors' right to stop in transitu. In Ellis v. Hunt, 3 T. R. 469, Buller, J., expressly said that that would make no difference; and Stokes v. La Riviere, 3 T. R. 466, there cited, was a case of deli- very to a particular carrier. Still less can the conception of the carrier that he received goods on account of the vendee alter the law, and con- vert him into a special agent for that purpose. Then the mark on the goods which is relied on was not for the purpose of taking possession of them, as in Ellis v. Hunt, but merely as a direction to ascertain to whom they were to be sent. The case of Hunter and Others, assignees of Blanchard and Lewis v. Beale, 3 T. R. 466, is much stronger than the present ; for there the bankrupt (vendee) had directed the innkeeper at the place where the goods were sent to forward them down to the quay, in order to their being shipped, which was accordingly done, but arriving too late, they were sent back to the inn, after which the ven- dee's servant went to the warehouse and gave particular directions what should be done with the goods, till another opportunity of shipping them offered. In that case, therefore, acts of ownership were exercised by the vendee over the goods after they had arrived at the place of their destination j notwithstanding which, as they still remained in the actual possession of the innkeeper, who was the locum-teneTis of the carrier. Lord Mansfield held that they might be stopped in transitu. Secondly, It has never been decided that part payment made any difference in cases of this kind; nor is it reasonable that it should ; for then some trifling sum, by way of earnest, would always be paid to prevent the legal right of the vendor attaching. The foundation of that right is, that the *vendorhas a just lien on his goods for the full value of r^non-i them, until they are actually delivered to the vendee. The •- J operation of a partial payment is to lesson that lien^ro tanto. There- fore till the delivery the vendor may, upon the insolvency of the ven- dee, retake his goods upon their passage, upon repayment of the sum so advanced. In some of the cases determined, the consignee had insured the goods, in others he had given his acceptances, which might be con- sidered as payment till they became due and were dishonoured. The passages alluded to were neither decisions, nor even direct opinions on the point, buif mere observations arguendo that no payment had been 156 ROSS ON OOMMEB.01AL LAW. made on the goods. Here the vendors have elected to retake their goods, and have tendered the money paid in part for them, and also the bill which was dishonoured. Thirdly, As to the tender of the prior debt due, no question was made on that head before : but on no principle of law can that be necessary ; for it made no part of the contract for these goods, and the vendee cannot acquire any general lien on goods, before he has actually received them. Park in reply, observed that this was distinguishable from the com- mon case of a delivery' to a carrier, because here it was part of the original agreement that the goods should be delivered to Grolding. The acts of the bankrupt afterwards showed that he considered Golding as his special agent : for he gave particular directions to him in what man- ner the goods should be forwarded, which Golding obeyed, considering himself as the bankrupt's special servant. With respect to Hunter v. Beal, it diflFered in this, that there the goods were sent to a person in London of the vendor's own choosing ; and though the bankrupt after- wards gave directions to that person where to send the goods, yet they were never out of his possession till they were retaken by the vendor. Whereas here they got into the hands of a person who was not only the general, but in this case the appointed, agent of the vendee. After this case was argued. Lord Kenyon, C. J., said that on the general question respecting r*9R01 ^^^ right of the vendors to stop these goods in transitu, *no L J doubt could be entertained, for that this case could not be dis- tinguished from those cited in which that doctrine had been established and recognised. And that the case of Hunter v. Beal was much stronger than the present. But, on the other point respecting payment, his Lordship said he did not think that this took the case out of the general rule, and that he should be sorrry to let in such an exception, because it would destroy the rule itself; since every payment however small, even the payment of a farthing by way of earnest, would, if such an exception were introduced, prevent the operation of the general rule of stopping in transitu. And he added that the right of the vendor to stop goods in transitu in case of the insolvency of the vendee, was a kind of equitable lien adopted by the law for the purposes of substan- tial justice, and that it did not proceed, as the plaintiffs' counsel suppos- ed, on the ground of rescinding the contract. The other Judges, however, expressing a wish to have an opportunity of examining the cases cited, in order to see whether the circumstances of part payment by the vendee took this case oat of the general rule, and being desirous that there should be a uniformity of decisions on this subject, a second argument was ordered on this second point; the Court being unanimous on the first. But on this day Lord Kenyon, 0. J., delivered the opinion of the Court in favour of the defendant, in substance, as follows : — We have looked into the case cited on the second point respecting the part payment of the goods by the vendee; and as this is a case of great consequence to the com- mercial world, and as it is of vast importance that questions that have been long settled,, should not be set afloat again on account of some CONTRACT OF SALE. 157 trivial circumstance that formed no ingredient in some of the decisions in which the general doctrine was established, and as we have no doubt ourselves on this subject, we think that the case should not be argued again. When the distinction was first taken at the Bar, I thought it not well founded; and on looking into the eases that were referred to in support of it, we are clearly of opinion that the circumstance of the vendee having partly paid for the goods, does not defeat the vendor's right to *stop them in transitu, the vendee having become a ^^^^-i-, bankrupt ; and that the vendor has a right to retake them unless L J the whole price has been paid. And indeed the Lords Commissioners seem to have been of the same opinion in the case of Wiseman v. Vandeput : for " they decreed an account that if anything were due from the Italians (the consignors) to the Bonnels (the consignees) that should be paid to the plaintiffs, but they should not have the value of the silks by virtue of the consignment." Therefore we would not have it supposed that there is any doubt on this question. The consequence is that the postea must be delivered to the defendant. Postea to the defendant. The case of Hodgson v. Loy was recognized in Feize v. Wray, 3 East, 93, wliere Lord Ellenborough observed, — "The case of Hodgson t. Loy showed that a part payment did n<9t destroy the vendor's right of stopping in transitu ; it only reduced his equitable lien pro tanio when he got the goods into his possession." WHEEE A PURCHASER IS IN THE HABIT OP USING THE WAREHOUSE OF A WHARFINGER AS HIS OWN, AND MAKING IT THE REPOSITORY OP HIS GOODS, THE TRANSITUS IS HELD TO BE AT AN END WHEN THE GOODS SOLD ARRIVE AT SUCH WAREHOUSE. I.— SCOTT V. PETTIT. June 28, 1803.— B. 3 B. & P. 469. Trover for goods. The cause was tried before Lord Alvanley, C. J., at the G-uildhall Sittings, after last Easter Term, when the following facts appeared in evidence : — The goods in question had been ordered by the bankrupt, who was a: merchant in London, of Messrs. Wallers of Manchester, and were for- warded by them, directed to the bankrupt at the Bull and Mouth Inn,, on the 16th of March, 1802. On the *23d of March the goods poggi were sent from the Bull and Mouth Inn to the defendant's house, L ■* w'ho was a packer, not in consequence of any orders respecting those par- ticular goods,, but in consequence of a general order from the bankrupt to send all goods directed to him to the defendant's house. On the 11th of March, the bankrupt, who lived in lodgings, and had no warehouse of his own, absconded, leaving no clerk to accept goods or orders for him. January, 1855. — 11 158 ROSS ON CbMMEECIAL LAW. On the arrival of tlie goods at the defendant's house, they wore booked for the account of the bankrupt ; and the defendant not knowing that the bankrupt had then absconded, and not having any directions from him respecting the goods, caused them to be unpacked with a view to ascertain of what they consisted. On the 31st of March, Messrs. Wallers having learned the situation of the bankrupt's affairs, claimed the goods from the defendant, and on the day after they were demanded by the assignees. The defendant being indemnified by Messrs. Wallers, refused to deliver the goods to the plaintiflfs. The jury found a verdict for the plaintiffs, but liberty was reserved to the defendant to move for a new trial, or that a nonsuit might be entered. Best, Serjt., having accordingly obtained a rule nisi on a former day, was now called upon to support this rule. When this rule was obtained, two grounds were suggested, 1st, that as the goods were not sent from Man- chester till after the bankruptcy of Berkley, his bankruptcy might be deemed a revocation of the previous order, and, consequently, that no right vested in the plaintiffs. [This point he now abandoned, saying, that though suggested by the Lord Chief Justice, before whom the case was tried, yet he felt it too late, after the many decided cases in which a similar circumstance had occurred, without affecting any alteration in the right of the assignees of the bankrupt to claim goods on their arrival, to make this objection, however desirable it might be to establish a dif- ferent rule from that which had hitherto prevailed.] 2dly, That the transitus of the goods was not at an end when they were demanded by Messrs. Wallers. Before the right to stop in transitu can be defeated, it must appear that the goods have come to the possession of the vendee. |-^n„q-. It is true that in Ellis *v. Hunt, 3 T. R. 464, where the trcmsi- L J tus was holden to be at an end, the assignees of the vendee had not.taken actual possession, but the messenger under the commission had • done an act which was equivalent to taking possession, by putting his mark upon them. In Hunter v. Beal, cited in the above case, it was determined that the vendor had a right to stop goods which remained in the custody of the carrier, though the vendee having received notice of their arrival, had given orders to the carrier respecting the disposal of them, and though the carrier himself had done some acts towards carrying those orders into execution. So in Hunt v. Ward, also cited in Ellis v. Hunt, where goods had been sent by orders from the vendee to a packer, the latter was considered as a middleman between the vendor and vendee. Though a packer be the agent of a vendee, yet he is not such an agent as can receive the goods into the stock of the vendee. In the case of Hodgson V. Loy, 7 T. E. 440, where goods remained in the hands of a wharfinger, it was held that the right to stop in transitu continued, though the wharfinger had general directions from the vendee to forward such goods as should be received on his account to a particular person. Both a wharfinger and a packer receive goods for the mere purpose of forward- ing them to their ultimate destination; and therefore while they remain with them the transitus is not at an end. Shepherd and Bayley, Serjts., contra, were stopped by the Court, lord ALVANtEr, C. J — ^At the trial I could not help forming a wish, CONTRACT OF SALE. 159 that the question, how far the bankruptcy of Barclay had operated as a countermand of his previous orders to Messrs. Wallers, should be con- sidered by the Court. But on looking into the cases, I find that ques- tion to be completely closed in Westminster Hall, and that we therefore are bound to hold that, though a bankrupt has altogether ceased to be a trader, yet that his warehouse continues open for the purpose of receiv- ing goods ; and that the assignees have a right to take possession of everything that may come into their hands without paying a single far- thing, even though the consignors *of the goods are not entitled r^noA-i to come in under the commission. In Ellis v. Hunt, Lord Ken- L -• yon says, that it never had been decided that bankruptcy was of itself a countermand of an order; and in Bohtlingk v. Inglis, 3 East, 381, the goods in question were not delivered on board the ship which was to bring them from Kussia to the consignee in London, until after the con- signee had committed an act of bankruptcy. No doubt, therefore, for the purpose of receiving goods, the assignees stand in the place of the- bankrupt. The next question is. Whether, under the circumstances of this case, the delivery of the goods to the packer is to be considered as a delivery to the bankrupt ? Undoubtedly there are cases in which packers and wharfingers are to be considered as middlemen ; but there may always bo a question, Whether in the particular case they are to be so considered or not ? Such was the question in Bichardson v. Goss, 3 Boss. & Pull. 119, and in Mills v. Ball, 2 Boss. & Pull. 457. In the last of those cases, we held the wharfinger at Exeter to be merely a middleman ; for though he paid the freight and charges up to that place, yet he was not authorized to impeach them or meddle with them, but was only one of the hands by which the goods were to be forwarded to North Tawton, the place of their ultimate destination. In the case of Richardson v. Goss, it was not necessary for us to decide whether the wharfinger was a middleman or not, for the case was decided on the ground, that the consignee of the goods had countermanded his order ; but my brother Chambre intimated in his opinion, and I perfectly agreed with him at the time, that if a man bo in the habit of using the ware- house of the wharfinger as his own, and make that the repository of his goods, the iransitus will be at an end when the goods arrive at such warehouse. I take the case of the packer, cited in Ellis v. Hunt, to amount to no more than this : that if a man living at a distance, or liv- ing abroad, order goods to be sent to A. B. his packer, in order that A. B. may hand them on to him; in such case A. B. is a mere middleman with respect to the right of stopping in transitu. And in Leeds v. Wright, 3 Boss. & Pull. 320, we held that the goods, though remain- ing in the packer's custody, had arrived at the end of their journey ; for the packer in that case was not merely a middleman. *In this riKoqc-i case it seems to me impossible to raise a doubt whether the tran- "- -• situs was at an end or not ; for if the bankrupt had no warehouse to re- ceive the goods but that of- the packer, the transiius never could be at an end, if it did not end there. Under all the circumstances of the case, I am clearly of opinion that the consignees were not entitled to 160 ROSS ON COMMERCIAL LAW. consider tbe defendant in the light of a mere packer, and to stop the goods in his custody. Heath, J. — It is much to be lamented that goods consigned to a bankrupt which arrive a^er the act of bankruptcy, as in this case, should ever be considered as part of the bankrupt's effects. The hardship to which this rule of law had given rise in particular cases, was the occa- sion of introducing the doctrine of stoppage in transitu. The very ex- pression " stoppage in transitu," ex vi termini, implies that there must be a place of ultimate delivery of the goods. If the bankrupt in this case had possessed a warehouse of his own, and the packer had merely taken them as-a middleman, the consignors might have stopped them. But here there being no other place of delivery than tbe warehouse of the packer, the goods, when arrived there, had come to their last pl^oe of delivery, and consequently were no longer liable to the right of stop- page in transitu. KooKE, J. — I am of the same opinion. I exceedingly regret that such a rule of law should have been adopted, as that whioh vests in the assignees of a bankrupt the property in goods which arrive after the bankruptcy ; for it appears to me to be productive of very great hard- ships. But the cases are too decisive upon the subject for the Court now to adopt a contrary doctrine. In all the cases where the consignor ■has been allowed to stop the goods in the custody of the packer, there has been a place of ulterior delivery in view. In the present instance, there was no place of delivery but the warehouse of the packer. The delivery therefore to the packer was equivalent to a delivery to the bank- rupt himself Chambre, J — I am entirely of the same opinion. If the warehouse r*2361 *°^ *''^ packer were not to be considered as the place of delivery L J to the bankrupt in this case, there could be no place of delivery at all ; for the bankrupt had no other opportunity of receiving goods but by the hands of the defendant. However hard the law may in general be thought, which vests the property in goods which arrive after an act of bankruptcy in the assignees of the bankrupt, it would be still more hard in the present instance, if the creditors were not permitted to re- sort to* the property in the hands of the defendant, since he could have no stock in his own possession. The creditors of a trader generally know whether he has goods in his possession, and trust him accordingly ; and the creditors of this bankrupt probably knew that he considered the warehouse of his packer as his own, and that the goods were consigned to him there. In those cases where the transitus of the goods has not been considered as at an end, the goods have only remained with the packer for the purpose of being forwarded to the same ulterior destina- tion. In this case there was no ulterior destination, the transitus was at a' end. Rule discharged. CONTRACT OF S.ALE. 161 II.— KOWE T. PICKFORD. Nov. 25, 1817.— E. 8 Taunt. 83. Eng. Com. Law Reps., Tol. 4. This was an action of trover brou'ght by the plaintiffs as assignees of Lange, a bankrupt, to recover the value of six bales of twist, delivered to the defendants as common carriers. At the trial of the cause before Dallas, J., at the London Sittings after the last Term, after the usual proof in bankruptcy cases, when it appeared that the act of bankruptcy was on the evening of the 16th or the morning of the 17th of August, 1816, the following facts were given in evidence. The goods in question were delivered to the defendants at their warehouse at Manchester, on the 9th and 12th of August, 1816, by one Paul Chapp(§, the manufacturer and consignor, addressed to the bankrupt in London, who had been in the habit of *purchasing Manchester r^,-)0'r-j goods through Chappe, and exporting them to the Continent, on I- J or shortly after their arrival in London. The bankrupt had no ware- house of his own in London, and the goods consigned or sent to him remained at the wagon-office of the defendants, until they were removed from thence by his shipping agent, for the purpose of being shipped. The bankrupt always received notice from the defendants of the arrival at their warehouse in London, of any goods addressed to him, and there they remained until an opportunity for shipping them presented itself, when an order to take them away was given by the bankrupt to his ship- ping agents, together with the note which had been left with the bank- rupt, informing him of the arrival of the goods. On the 14th of Au- gust, the clerk of the bankrupt received a notice from one of the defendants' porters, of the arrival of two of the bales in question ; on receipt of which, the clerk went to the defendants' warehouse, saw the bales, and informed the warehouseman that he should give an order to the bankrupt's shippjng agent to come for them as usual. On the 17th of August a similar notice was given by the defendants of the arrival at their warehouse of the four other bales ; and, in the afternoon of that day, the clerk went to the defendants' warehouse and saw those four bales, but did not give any directions respecting them. On the 18th the clerk met the warehouseman, and told him not to let the goods in ques- tion go without order : the carriage for these goods was not paid, and the shipping agent always paid the carriage when he took away the goods. On the 19th of August the authorized agent of the consignor Chappe gave notice to the defendants not to deliver the goods to the bankrupt ; on the 20th, Chappe confirmed the notice of his agent, and ordered the delivery of the goods to Messrs. Liebman and Co., to whom; on the 21st, they were by the defendants delivered accordingly. For the plaintiffs it was contended, that the consignor had no right to stop these goods as in transitu ; such right being determined by the arrival of the goods at the warehouse of the defendants' in London. For the defendants it was urged, that the goods were in transitu when the consignor gave the notice for non-delivery to the consignee. The jury found a verdict for 162 ROSS ON OOMMEROIAL LAW. r*OQaT ^^^ plaintiffs. *Dallas, J., gave the defendants leave to move L -I to set aside the verdict, and enter a nonsuit, or to have a new trial. Accordingly, Lens, Serjt., on a former day, obtained a rule nisi to that effect. He cited Hunter v. Beal, 3 T. K. 466, d., and referred to the cases of Mills V. Ball, 2 B. & P. 457, and Ellis V. Hunt, 3 T. E. 464. Vaughan, Serjt., was now about to show cause but was stopped by The Court, who asked Lens, if he thought he could support his case of stoppage in transitu, after the goods had reached their final place of delivery : and observed that this case must be governed by Leeds v. Wright, 3 B. & P. 320, and Scott v. Pettit, 3 B. & P. 469, in the latter of which it was held, that where a trader had no warehouse of his own, but used that of his packer for receiving goods consigned to him, the transitus of such goods was at an end upon delivery of them to the packer. That the case of Hunter v. Beal was only a question whether a packer was an intermediate man, and wanted the material feature which marked the present case, namely, the fact that the warehouse of the carriers was the place of final delivery; and, moreover, that the im- pression in Lord Ellenborough's mind in Dixon v. Baldwin, 5 East, 184, appeared to be adverse to the decision in Hunter v. Beal. In Richard- son V. Goss, 3 B. & P. 127, Chambre, J., said, that he was strongly inclined to think, that if a man be in the habit of using the warehouse of a wharfinger as his own, and make it the repository of his goods, and dispose of them there, the journey would be at an end when the goods arrived at such warehouse : and, in Scott v. Pettit, 3 B. & P. 472, Lord Alvanley said, he perfectly coincided with Mr. Justice Chambre in that which he had intimated in the former case. Both these cases were recog- nised in Dickson v. Baldwin, and there confirmed by Lord Ellenborough, 5 East, 185. Lens admitted that he could not press the point ; and the rule was Discharged. [*239] ♦IIL—WENTWORTH v. OUTHWAITE. July 7, 1842.— E. 10 M. & W. 436. Trover by the Sheriff of Yorkshire for twenty mats of flax. Pleas, not guilty and not possessed ; on which issues were joined. At the trial before Parke, B., at the last Spring Assizes at York, it appeared that on the 10th of August, 1841, Messrs. Hill and Co. of , Hull, having sold to a Mr. Wetherall, of Mickley Mills, a place about thirty miles from Leeds, twenty mats of flax, they were forwarded by railway to Leeds, and duly arrived at the warehouse of the defendants (who are carriers) at that town ; and on the 16th of August Wetherall sent his cart there and took away ten of the mats. It appeared that the warehouse was a large shed at or near the railway terminus at Leeds, and that it was the custom for the defendants to give notice of the arri- val of goods at their warehouse to Wetherall, who sent his wagons or CONTRACT OF SALE. 163 carts for them, and carried them to Mickley Mills. On the 18th of August, there was another sale by Hill and Co. to Wetherall, of twenty other mats of flax and a quantity of other goods. The flax was sent by railway to Leeds, and duly arrived at the defendants' warehouse, and the Other goods were sent by sloop to Boroughbridge. On the arrival of the different parcels of flax at the defendants' warehouse, notice was given to Wetherall by letter, which stated, that unless the goods were sent for they would remain there at warehouse rents. No rent was, however, charged to or paid by Wetherall. On the 23rd of August, Wetherall sent his wagon and took away ten of the latter mats, and left there ten of the mats last sent and ten of the former. Previously to the 8th of September Wetherall became bankrupt, and on that day the goods which had been shipped for Boroughbridge were stopped in transitu on board the sloop at Hull. On the same day the ten mats of the second parcel were also stopped at Leeds. On the 11th of September, the Sheriff entered and seized all the flax in the defendants' warehouse sent by Hill and Co., under an execution against Wetherall at the suit of Terry and Co., but the officers saw only the ten mats last sent. The defendants agreed to hold them for the Sheriff, on an indemnity r,oj^A-i *being given. On the 15th of September, there was a stoppage L -• by Hill and Co. of the remaining ton mats of the first parcel. The question at the trial was. Whether Hill and Co. had a right to stop the goods, on the ground that the transitus was not at an end upon their arrival at the defendants' warehouse. THfe plaintiff's counsel con- tended that it was at an end, and that the defendants' warehouse was constructively the warehouse of Wetherall himself. The jury, in answer to a question put by the learned Judge, found that the parties contem- plated that the flax was to be used for the purpose of manufacture at Mickley Mills. His Lordship directed the.jury to find a verdict for the plaintiff, reserving the question of law for the opinion of this Court. The jury having accordingly found a verdict for the plaintiff, Baines, in Easter Term last, obtained a rule to show cause why a nonsuit should not be entered ; against which rule Dundas and Crompton, in Trinity Term, (May 28,) showed cause. First, the transitus was at an end on the arrival of the goods at the defendants' warehouse at Leeds. That was constructively the ware- house of Wetherall himself; the goods were kept there for him, and if he did not send for them upon notice of their arrival, he was to pay warehouse rent. The cases on this subject are collected in the note to Lickbarrow v. Mason, in Smith's Leading Cases, and there the rule derived from all the cases is stated to be " that the goods are in transitu so long as they are in the hands of the carrier as such, whether he was or was not appointed by the consignee, and also so long as they remain in any place of deposit connected with their transmission. But that, if after their arrival at their place of destination, they be warehoused with the carrier, whose store the vendee uses as his own, or if they be warehoused with the vendor himself, and rent be paid to him for them, that puts an end to the right to stop in transitu." For this position the author cites nu- merous authorities, and amongst others Allan v. Gripper, 2 C. & J. 218, 2 164 ROSS ON COMMERCIAL LAW. Tyrw. 217, and Bichardson v. Gross, 3 Boss. & Pull. 127. In the former case Bayley, B., in giving his judgment, cites Foster v. Frampton, 6 B. &C. *107, and says, "it was there decided that when a vendee, for [ ^^^i his own convenience, had desired the carrier to let the goods re- main in the carrier's warehouse until he should receive further direc- tions, the transitus was to be considered at an end, and the vendor was not entitled to stop in transitu on the insolvency of the vendee," And in Eichardson v. Gross, where A. shipped goods to London to the order of B., but before their arrival B. became in insolvent circumstances ; the goods, however, arrived at the wharf of C, where goods shipped for B. were usually landed, and kept till sent for by him, the Court appears to have been of opinion that the goods were no longer in transitu when they arrived' at C.'s wharf, where they were usually landed and kepi In the present case, the goods having been transmitted by railroad to Leeds, arrived at the defendants' warehouse, where they were kept for the consignee, and it was for his convenience that the delivery to him was postponed. That brings the case clearly within the rule laid down by Bayley, J., in Foster v. Frampton, 6 B. & C. 108. He there says, "Where a man orders goods to be delivered at a particular place, the transitus continues until they are delivered to the consignee at that place ; but that must be understood of a delivery in the ordinary course of business j for if the consignee, before the goods reach their ultimate destination, postpones the delivery,, or does any act which is equivalent to taking actual possessifin of them, the transitus is at an end." And Holroyd, J., there puts this very case. He says, " The transit of the goods was at an end by the act of the consignee's treating the goods as his own property, taking part to his own premises, and directing the other part to remain in the warehouse of the carrier. From that moment the the latter ceased to be a carrier, and became a mere bailee." The judg- ment of Littledale, J., is to the same effect. The present is even a stronger case, for there the consignee only took samples, whereas here half of each parcel was taken. In Eowe v. Pickford, 8 Taunt. 83, J. Moore, 526, a trader in London was in the habit of purchasing goods at Manchester, and exporting them to the Continent soon after their arrival in London. The goods so consigned to him remained in the wagon- office of the defendants, who were carriers, until they were removed by r*2421 '^'^ ^gfiut *for the purpose of being shipped. A consignment of L J goods for the trader was delivered to the defendants on the 9th and 12th of August. On the 14th and 17th the goods arrived at the wagon-office of the defendants j on the 16th or 17th the trader became bankrupt, and on the 19th notice of non-delivery to the bankrupt was given by the consignor to the defendants, who, according to order oh the 21st, "delivered the goods to a third house; and it was held, that the assignees of the bankrupt were entitled to recover the goods deposited with the defendants, and that the right of the consignor to stoppage in transitu ceased on the arrival of the goods at the wagon-office of the defendants in London. That case is identical with the present, except that this is stronger ; for there the journey wag not at an end, as the goods were to .go abroad. Unless something remains to be done by the carrier, the CONTEAOT OF SALE. 165 transilws ia at an end upon the arrival of the goods at his warehouse. Here nothing remained to be done by the carrier, for the goods were not to be forwarded, but to be sent for by the consignee. He might either have sold them there, or given them a new destination. In James v. GriflSin, 2 M. & W. 6, Parke; B. says, "The actual delivery to the ven- dee or his agent, which puts an end to the transitus or state of passage, may be at the vendee's own warehouse, or at a place which he uses as his own, though belonging to another, for the deposit of goods ; Scott v. Pettit, 3 B. & P. 469, Kowe v. Pickford ; or at a place where he means the goods to remain, until a fresh destination is communicated to them by orders from himself; Dixon v. Baldwen, 5 East, 175 ; or it may be by the vendee's taking possession by himself or His agent, at some point short of the original intended place of destination." It may be said on the other side, that there was to be a further transit to Miokley Mills ; but that was not so, as the consignee was to take them there in his own carts. Secondly, the consignee had in fact taken away part of the goods sold under one entire contract, and there are many authorities to show that in such case the right to stop in transitu is gone. Thus, in Hammond V. Anderson, 1 N. E. 69, a number of bales of bacon, then lying at a wharf, having been sold for an entire sum, to be paid for by a bill at two months, *an order was given to the wharfinger to deliver r^nAo-i them to the vendee, who went to the wharf, weighed the whole L J and took away several bales, and then became bankrupt, whereupon the vendor, within ten days from the time of the sale, ordered the wharfinger not to deliver the remainder. By the custom of the trade, the charges of warehousing were to be paid by the vendor for fourteen days after the the sale. It was held that the vendee had taken possession of the whole, and that the vendor had no right to stop what remained in the hands of the wharfinger. [Parke, B. — In this ease there was a clear intention to separate ji part taken as the cart would not hold more. Alderson, B. — The consignee takes away part of the goods after he knows that they are lying at his risk, and at a rent in the defendants' warehouse.] In Slu- bey V. Hey ward, 2 H. Bl. 504, A. shipped goods by the order and on the account of B., to be paid for at a future day, and bills of lading were accordingly signed by the master of the ship; one of the bills was immediately transmitted to B., who, before their arrival of 'the ship at the place of destination, sold the goods and indorsed the bill of lading to C. After the arrival of the ship and a delivery of part of the goods to the agent of C, B. became bankrupt, without having paid A. the price of the goods; and it was held that by this delivery the transitus was at an end' as to the whole of the goods. Betts v. Gibbons, 2 Ad. & Ell. 57, 4 Nev. & M. 64, is to the same effect. At all events, the plaintiff is entitled to recover ten mats, as the Sheriff seized the whole twenty mats before the consignors stopped the other ten. Thirdly, it is said that as another part of the goods, which were sent by river navigation to Bbroughbridge, were stopped in due time, and the whole was contained in one joint contract, it had the effect of rescinding the contract, and revesting the property in the whole in the consignor. 166 ROSS ON COMMERCIAL LAW. But that cannot be so ; the authorities are strong against the effect of the stoppage being to rescind the contract ; and even if the stoppage had that effect in general, the point does not arise in the present case, as here the stoppage of part of the goods could at most only have the effect of rescinding the contract pro tanto, and revesting the property in the last mentioned portion of the goods. r«944n *Bains, Martin, and Liddell, in support of the rule. — The L -I rule is, that an unpaid vender has always a right to stop the goods which he has forwarded to the vendee under a contract of sale, whilst they are on their transitus, in the event of the vendee becoming insol- vent. Here the twenty mats which were stopped at Leeds on the 8th of September were merely at the warehouse of the carriers on their way to the consignee at Mickley Mills, the place of their ultimate destination, and the vendor had therefore a right to stop them. Lord Tenterden, in his Treatise on Shipping, (p. 464, 6th edit.,) states the true principle applicable to these cases. He there says, " Goods are deemed to be in transitu, not only while they remain in the possession of the carrier, whe- ther by water or land, and although such carrier, may have been named and appointed by the consignee ; but also where they are in any place of deposit connected with the transmission and delivery of them, and until they arrive at the actual or constructive possession of the consignee, at the place named by the buyer to the seller as their destination. But if the con- signee, before the goods reach their ultimate destination, does any, act which is equivalent to taking actual possession of them, the transitus is at an end." Here the place contemplated between these parties as the destination of the goods was Mickley Mills, and the vendee had done no act equivalent to taking possession of them. According, therefore, to the principle laid down by Lord Tenterden, nothing less than an actual arrival at the place of destination would take away the vendor's right to stop the goods. In Stocks v. La Riviere, which is quoted in the argu- ment in Bohtlingk v. Inglis, 3 East, 397, Lord Mansfield is stated to have said, " No point is more clear than that if goods are sold and the price not paid, the seller may stop them in transitu, I mean, in every sort of passage to the hands of the buyers." Have these goods come into the actual possession of the consignee ? Clearly not. But then it is said that they were constructively in his possession, as he was to send for them, and they were there lying at a rent until he did so. But there was nothing to show that any actual rent had been agreed to be paid, or ever was paid. The letter which the defendants sent to the consignee, stating that unless the goods r*2451 ^^"^^ taken away *they would remain at warehouse rent, did not L -I constitute the dealing between the parties, since there was no assent to it on the part of the consignee ; and the defendants made no demand for rent when the sheriff seized the goods, neither was it shown that they had ever received any rent on former dealings between them and Wetherall. It was the practice, no doubt, for Wetherall to send his cart to fetch the goods from Leeds, but the vendors knew nothing of that. The original destination was Mickley Mills, and nothing took place subsequently to alter it. [Parke, B. Would not Wetherall have been liable for ware- CONTRACT OF SALE. 167 house rent ?] No ; it is submitted he would not, as it had not been the course of dealing between them. [Parke, B. — If from the notice Wetherall might be liable to warehouse rent, the defendants not insisting on it may have been a forbearance to enforce the right, rather than the absence of the right itself.] But that cannot affect the right to stop in transitu. In Morley v. Hay, 3 Man. & Ey. 396, it was held that the right of the vendor to stop in transitu is paramount to any lien against the purchaser. It was there urged in argument, that a wharfinger had a general lien ; to which Bayley, J., answers, " Not upon goods which are going forward to another place ;" and Parke, J., says, " Not against a party who has a right to stop in transitu." And Bayley, J., after- wards adds, " A wharfinger can derive a title to a general lien only by contract, but here the plaintiffs claim paramount to Gamble, (the con- signee) the party with whom such contract must have been made." The stoppage was in this case complete, according to the principle laid down by Lord Abinger, C. B., in Gibson v. Carruthers, 8 M. & W. 321. His Lordship there entered into a complete investigation of the law on this subject, and although he dissented from the rest of the Court upon another point, there was no difference of opinion in this respect. He goes through all the cases, and amongst others adverts to Hanson v. Meyer, 6 East, 614, and states that, as far as that decision goes, " it is a decision that the assignees of the bankrupt vendee can have no property, as against the vendor, in any part of the goods which have not been actually delivered, or of which the iransitus has not terminated." And he adds, that although by the law of England the contract for sale, and •delivery to a carrier, transfer the property from the vendor to r^nAo-i the vendee, yet nevertheless the vendee, if insolvent, cannot L J maintain an action of trover against the vendor or his agent, if the vendor, before the arrival of the goods at their destination, take mea- sures to prevent their delivery to the vendee. The true question in these eases is, had the goods arrived at the destination given by the vendee to the vendor ? and here they clearly had not, for Mickley Mills was that place of destination. Although it had been the practice for Wetherall to send his cart for the goods, the vendors knew nothing of it. [Parke, B It did not appear that the defendants ever sent the goods to Mickley Mills. The finding of the jury was, that the parties contemplated that the flax was to be used at Mickley Mills, but it is not said that that was mentioned as the place of destination.] The true ground of the right of stoppage in transitu is that on which it is put by Lord Abinger, in Gibson v. Carruthers, namely, that it is no part of the- contract, but that the law gives the right. [Lord Abinger, C. B. — But it is not open to the party to show the fact as to where the vendee intended the goods to be brought ? [Parke, B The ultimate place of destination is that place to which the carrier is to carry the goods, and where the vendee is to receive them.] In Whitehead v. Anderson, 9 Mee. & W. 534, Parke, B., in delivering the judgment of the Court, lays down the law as clearly settled, " that the unpaid vendor has a right to retake the goods before they have arrived at the destina- tion originally contemplated by the purchaser, unless in the meantime 168 ROSS ON COMMERCIAL LAW. they have eome to the actual or constructive possession of the vendee." It is admitted, that if it had been communicated to the vendors, that the vendee was to send for the goods to Leeds, that would be the terminus of the transit, and "the place of destination ; but it was not so. The case falls precisely within the principle laid down by the Court in James V. Griffin, There, Parke, B., says, " Suppose the vendee to order goods which he purchased to be left at an inn, which was also the receiving house of a carrier, for the purpose of being forwarded to his own resi- dence, their intended place of destination ; but from the non-disclosure by the vendor of that purpose, the innkeeper supposed that he was to r*2471 ^^®P ^^^ goods till the vendee came *himself for them, or ordered L J them to be sent elsewhere. There is no doubt, I apprehend, that notwithstanding such ignorance of the inkeeper of his real character, the transitus would not be at an end whilst the goods were in the inn- keeper's possession. No case can be more applicable to the present than the case there supposed. Apd Lord Abinger, C. B., said, " that as long as the goods had not come into the actual possession of the bankrupt, or to the possession of some immediate agent, who was finally to receive them on his account, the transitus still continued, and therefore it was competent to the vendor to stop them in transitu." The cases of Poster V. Prampton, and Kowe v. Pickford, which have been cited on the other side, are distinguishable. In those cases the consignee had no ware- house, and the goods were not small parcels, but large hogsheads, which necessarily required a warehouse to receive them in. And^as was observed of the latter case by Bayley, J., in Coates v. Railton, 6 B. & Or. 426, " The vendor ,had sent the goods to the place where he was directed by the vendee to send them, and it was then at the option of the latter to send them to any place on the continent. There was no ulterior place of destination named to the vendor." And he adds, " The principle to be deduced from these cases is, that the transitus is not at an end until the goods have reached the place named by the buyer to the seller as the place of their destination." The jury here could not have found that the parties contemplated that the goods were to go to Mickley Mills to be manufactured, unless they thought that that was the place of their destination. [Parke, B Suppose the goods had been put into Wetheralls's cart, and it was conveying them to Mickley Mills ?] That would fall within a different principle ; there the goods would have come into the actual possession of the vendee, which is one of the exceptions. So in the case of Hammond v. Anderson, the vendee had taken possession of the whole, and the right of stoppage was there- fore gone. f Secondly, it is said there has been a part delivery of the goods, and that that amounted to a taking possession of the whole by the consignee, whereby the right of stoppage in transitu was gone. But this case is distinguishable from those which have been cited on the other side, and r*2481 ®^^° ^^ '' ^^ °°'' *^^^ "*'® ^^^ ^®^° °^ '^*® ^^''y iHich restricted. L J In Jones v. Jones, 8 M. & W. 431, 442, where there had been a part delivery of the goods, the question is stated to be quo animo the act is done; whether with the intention of taking the possession and CONTRACT OF SALE. 169 dominion of the whole of the goods or not. And Parke, B., there says, " The taking of samples is an equivocal act : it might be that he took them in order to ascertain whether he could dispose of any part of the goods there, without intending thereby to take actual possession. Again, the actual delivery of the 140 sacks is not sufficient ; it is no more than a delivery of 140 sacks to a purchaser of 140, and not done with a view to take possession of the whole." In Dixon v. Yates, 5 B. & Adol. 313; 2 Nev. & Man. 177, where also there had been a part delivery, it was held that the vendee never had acquired the actual possession of the goods. There all the cases were fully cited in the argument; but Lit- tledale, J., says, "Then it is said there was a part delivery here, and that that in point of law operated as a constructive delivery of the whole. But that rule is confined to cases where the delivery of part is intended, to be a delivery of the whole." There was here no such part delivery. But, thirdly, even if the transitus was at an end oij the arrival of the goods at the defendants' warehouse, there was here a stoppage of that part of the goods which had been shipped to go to Boroughbridge, and as they were included in one joint contract with the flax last sent, the stoppage of that part had the effect of rescinding the contract, and re- vesting the whole in the vender. If the effect of a stoppage in transitu is to rescind the contract, (and it is submitted that it is) the vendors are entitled to the whole of the goods comprised in the contract. There is no authority against its having that effect, but the cases lean rather to the con^ary, though the point has never yet been expressly decided. In Edwards v. Brewer, 2 M, & W. 379, Parke, B., says, " Whether the effect of the stoppage in transitu be to rescind the contract, or merely to revest the lien, does not seem to be quite settled ; and he refers to Clay V. Harrison, 10 B. & C. 99. And in James v. Griffin, 10 B. & C. 632, he also says, " Whether this act of retaking rescinds the contract, or merely restores the right of *possession, can hardly as yet be r,n4^q-i considered as finally determined." [Lord AsiNGEa, C. B L J Surely the stoppage in transitu can only affect such of the goods as are actually stopped.! It is submitted that a stoppage of any part of the goods operates as a stoppage of all that have not actually come to the hands of the vendee. , In Clay v. Harrison, the Court seems rather to have been of opinion that by a stoppage in transitu the contract was rescinded. [Parke, B. — That certainly was not the decision of the Court.J In that case Patteson says in argument, "By the common law the property in goods passes by the sale ; if payment is to he made im- mediately, the vendor has a right to hold them till payment is made ; but if credit is given he cannot do so ;" upon which Bayley, J., says, " Does not the vendor by stopping in transitu abondon all rights that he had against the purchaser ?" from which it may be inferred that the learned judge thought it had the effect of rescinding the contract. Patteson in answer cites Kymer v. Suweroropp, 1 Campb. 109 ; but that was a case of lien, and not of stoppage in transitu. But there is no case which decides that a man can stop in transitu, and maintain an action for the price of the parcel which has been delivered. In Litt v. Cowley, 7 Taunt. 170, Gibbs, C. J., says, " The law of stoppage in 170 ROSS ON COMMERCIAL LAW. transitu says, that the property which was before in the bankrupt may be revested in the seller by notice to the carrier. The plaintiffs give that notice to the carrier, and thereby revest the property. Before such notice to the carrier to stop the goods, the purchaser may bring trover for them ; after such notice, the seller may bring trover." It appears clearly from those expressions, that his opinion was that not merely the possession was regained, but the property was revested. The judgment of Lord Abinger, C. B., in Gribson v. Carruthers, also plainly shows that his Lordship thought that a stoppage in transitu had the effect of rescinding the contract. If such be its effect, its operation here was to revest the property at all events in the ten mats last sent, which had not been delivered by the defendants. Lord Abinqer, C. B.^— It seems to me that a great part of the very learned argument which we have heard turns upon a question of fact, j-^„p.._ whether Leeds was the place of destination to *whieh the goods L J were to be sent. It may be the place of destination at which the goods are to be sent at the consignee's risk, and I think that in this case it was the place where they were to be at his risk until he sent for them ; and if so, and they were not to be forwarded by the defendants, that was a place of agency to receive the goods, and consequently the transitus was at an end. As to the question whether the stoppage in transitu had the effect of rescinding the contract, and revesting the pro- perty in the ten mats which had not been delivered, we wish to take time to consider. Parke, B. — I entirely concur in the opinion which has been expressed by my. Lord Chief Baron on the principal question, that the transitus was at an end. It may be considered as having been at an end, both because the goods had come into the constructive possession of the ven- dee, and because they had arrived at their place of destination. In the judgment in Whitehead v. Anderson, 9 M. & W. 534, the Court say, " A case of constructive possession is, where the carrier enters expressly, or by implication, into a new agreement, distinct from the original con- tract for carriage, to hold the goods for the consignee as his agent, not for the purpose of expediting them to the place of original destination pursuant to. that contract, but in a new character, for the purpose of custody on his account, and subject to some new or further order to be given to him." That is applicable to the present case. When the goods arrived at Leeds, and notice was sent to Wetherall of their arrival, and that he was to pay rent, the carriers held them, not as agents for forwarding them, but for their safe custody, and they were constructively in the possession of the vendee. Again, I think the goods had arrived at their place of destination, for that, as I understand, means the place to which they were to be con- veyed by the carriers, and where they would remain unless fresh orders should be given for their subsequent disposition. In this respect the case falls within the principle of Dixon v. Baldwen, 5 East, 175, 182, in which Lord EUenborough lays down the doctrine, that the transitus r*25l"l ^^ completely at an end when the goods arrive at an agent's, who L -1 is *to keep them until he receives the further orders of the ven- CONTRACT OF SALE. 171 dee. After referring to the several cases on this subject, he nays, " In those cases, the goods had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and without such orders they would continue stationary." That appears to have been the case in the present instance. The parcels of flax were to remain stationary at the defendants' warehouse till a further direction should be given by Wetherall, by an order to deliver to a purchaser, or to forward to himself by a new conveyance, and, if no further orders had been given, they would have continued there. I am of opinion, that on this ground the transitus was at an end, on the arrival of the goods at Leeds. Whether the effect of the stoppage of that part which had not arrived at its destination was to rescind the contract, or only to place the vendor in the same position as if he had not parted with the goods, I wish to take time to consider. Alderson, B., and Rolfe, B., concurred. Cur. adv. vult. The judgment of the Court was now delivered by Parke, B. — In this case, the Court consisting of my Lord Chief Baron, and my Brothers Alderson and Rolfe, and myself, have already expressed a unanimous opinion, that the transitus of the goods was at an end on their arrival at the warehouse at Leeds, that being the place to which the consignee intended them to be conveyed by the 'carrier, and whore they would stop unless the consignee should direct what fur- ther should be done with them. One point only was reserved for con- sideration, namely, the effect of a stoppage of part of the goods con- tained in one joint contract, before the seizure by the plaintiff. Several parcels of goods were purchased under one entire contract from Hill and Co., at Hull, by the consignee, living at Mickley, about thirty miles from Leeds. A part — two packages — were forwarded by the railroad to Leeds, and arrived *on the 20th of August. One of these r:^ocnT packages was taken to Mickley Mills by the consignee on the 23d L J of August. The remaining package was seized by the Sheriff, the plaintiff, on the 11th of September. But in the meantime some remain- ing parcels, comprised in the same contract, which were forwarded by water carriage to Boroughbridge, were stopped in transitu on the 8 th September, and it was contended for the defendants, that this had the effect of revesting in the consignor, at that time, all the parcels contained in that contract, and, amongst others, that seized by the Sheriff on the 11th September. We are all of opinion that this objection to the plain- tiff's right to recover, in respect of the last-mentioned parcel, cannot prevail. What the effect of stoppage in transitu is, whether entirely to rescind the contract, or only to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods until the price be paid down, is a point not yet finally decided, and there are difliculties attending each construction. If the latter supposi- tion be adopted, (as most of us are strongly iaclined to think it ought to be, on the weight of authority,) the vendor is entitled to retain the part actually stopped in transitu till he is paid the price of the whole, 172 ROSS ON COMMERCIAL LAW. but has no right to retake that which has arrived at its journey's end. His right of lien on the part stopped is revested, but no more. My Lord Chief Baron has expressed an opinion, to which he still adheres, that the contract is rescinded by a stoppage in transitu, but he does not think that this affects the right of the vendee to retain that portion of the goods which have been actually delivered to him, or, in other words, have reached the place of their destination, more especially when the goods and the price may be apportioned, as in the present case, and a new contract be implied from the actual delivery and retention of a part. In either view of the subject, the stoppage of that portion of the goods conveyed by water affords no defence. The rule must therefore be discharged. Eule discharged. -^ , , *1. In Foster v. Framptbn, 6 B. & 0. 107, the purchaser, on receiving L J notice from the carrier of the arrival of the goods, removed a portion of them to his own premises, and desired the remainder to remain in the warehouse of the carrier until he received farther directions. Before the portion that was left had been removed, the purchaser became bankrupt. The Court held that the transiius was at an end. Bayley, J., observed, — " It seems to me, that in this case the transitus was at an end. Where a man orders goods to be delivered at a particular place, the transitus continues until they are delivered to the consignee at that place ; but that must be understood of a delivery in the ordinary course of business ; for if the consignee, before the goods reach their ultimate destination, postpones the deliv- ery, or does any act which is equivalent to taking actual possession of them, the tran- situs is at an end. Now here, the bankrupt has done such an act, for he not only post- poned the delivery which wouldhave taken place in the ordinary course of business, but he took samples, and directed the carrier to keep the goods in his warehouse until he received further directions. From that time the carrier became the warehouse- man of the bankrupt, and the goods were as much in the possession of the latter as if he had taken them into his own warehouse. In Richardson v. Goss, 3 Bos. & Pul. 119, Richardson of Newcastle shipped goods for London to the order of one Wilson. Richardson finding that Wilson was in insolvent circumstances, ap- plied at the defendant's wharf in London, where the goods had in the meantime arrived, and where goods shipped for Wilson were usually landed and kept till sent for by him, tendering the freight and charges paid for the goods, and requir- ing delivery of them, which was refused, unless upon payment of a general balance due from Wilson to the defendant for wharfage. Chambre, J., intimated a strong opinion, that if a man be in the habit of using the warehouse of a wharfinger as his own, and make that the repository of his goods, and dispose of them there, the journey will be at an end when the goods arrive at such warehouse ; and Lord Alvanley expressed his concurrence in that opinion in the case of Scott v. Pettit, 3 Bos. & Pul. 469. There a trader had no warehouse of his own, but used that of his packer, for receiving goods consigned to him, and it was held that the transitus of such goods was at an end upon delivery of them to the packer. Now here the bankrupt, on the particular, occasion, used the warehouse of the carrier as his own, and made it the repository of his goods. I therefore think that the transitus was at an end as soon as the bankrupt took the samples from the hogsheads, and de- sired that they should remain in the warehouse till further directions. Holroyd, J. — I think that the possession of the sugar was completely vested in the con- r*2541 ^'S°®^- *'^^^ transit of the goods was at an end, by the act of the con- L _ J signee's treating the goods as his own property, taking part to his own pre- mises, and directing the other part to remain in the warehouse of the carrier. > From that moment the latter ceased to be a carrier, and became a mere bailee. Littledale, J. — The taking of the samples was a complete act of ownership. Be- sides, it appears that the bankrupt, for his own convenience, was in the habit of leaving goods in the warehouse of the carrier, and that on this occasion he di- rected them to continue there after the period when they would otherwise have CONTRACT OF SALE. 173 been delivered in the ordinary course of business. From the time when he drew the samples, and gave those directions, the sugar must be considered to have been in the possession of the bankrupt, as much as if he had taken it to his own pre- mises." 2. Where goods are sent to a party for the purpose of being forwarded by him to the purchaser, they may be stopped in transitu while in the hands of that party. In Smith v. Goss, 1 Campb. 282, the purchaser directed the seller to forward the goods to him at Newcastle either by way of London or Gainsborough, and if they were sent to London, to address them to the care of J. W. Goss, BuUwharf, with directions to send them by the first vessel to Newcastle. One of the questions raised was. Whether the goods might be stopped while in the hands of Goss, the defend- ant? Lord EUenborough held that the goods having been sent to the defendant- for the purpose of being forwarded to Newcastle, were merely at a stage on their transit, and could not be considered as having reached their final destination when at the wharfinger's at London. 3. Another question raised in the case of Smith v. Goss, was. Whether the seller's right to stop in transitu was not defeated by the goods being attached, while to transitu, by process out of the Court of the Mayor of London at the suit of a credi- tor of the purchaser ? Lord EUenborough held that the seller's right could not be defeated, as the creditor of the purchaser could not have a greater right in the goods than the purchaser himself, and observed, — " The vendor's power of inter- cepting the goods was the elder and preferable lien, and not superseded by the at- tachment, any more than it would have been by the general right of a common carrier to retain all his customer's goods for his general balance." 4. The question, whether the tranaitus is ended when the goods have reached the warehouse of a wharfinger, depends on the purposes for which they are re- ceived by him. If they are received for the purpose of being kept by him on be- half of the p'urchaser as their owner, then the transitus is at an end. If, however, they are received for the purpose merely of their being forwarded to the purchaser, or if the purchaser has intimated to the wharfinger that *he does not in- rj^nt-ci tend to take possession of the goods, then the seller's right of stoppage in L J transitu continues. In the case of James v. GrifBn, 1 M. & W. 20, and 2 M. & W. 6, the goods consigned were deliverable in the river, and by the direction of the purchaser they were landed on a wharf at which he was in the habit of having goods landed, having no premises adjoining the river, but having a warehouse in the city. The purchaser having become bankrupt, the goods were stopped while in the hands of the wharfinger. It appeared in evidence that the purchaser told his son that he did not intend to take possession of the goods, but that this inten- tion was not communicated to the wharfinger or the seller. The Court held that the proper question to be left to the jury was, Whether the wharfinger received the goods as the purchaser's agent to take possession of them for his benefit as owner, or as his agent only, to forward them to him, or to keep them for the seller ? It was farther held that the purchaser's statement to his son, that he did not in- tend to take possession of the goods, was admissible in evidence, although not communicated to the wharfinger or the seller. where a purchaser contracts to charter and send a vessel to receive a cargo, and the seller contracts to deliver the cargo on board oe the vessel on its arrival, the bills or lading to be made deliverable to the seller, and the price to be paid by the pdrohaser on receiving the invoice and bills or lading, the bankruptct op the purchaser does not rescind the contract, and it has been held that on the arrival of the vessel the seller is bound to implement his part op the contract, and that it is not necessary for the assignees of the bankrupt to give notice within a reasonable time to the seller op their adoption of the contract. January, 1855. — 12 174 EOSS ON COMMEECIAL LAW. GIBSON V. OAKRUTHEES. May 3, 1841.— E. 8 M. &"W. 321. '' Assumpsit. — The declaration stated, that theretofore, and before the said Thomas Harris became a bankrupt, to wit, on, &c., the said Thomas Harris, at the special instance and request of the defendant, bargained for and agreed to buy of and from the defendant, about 2000 quarters skreiened Odessa linseed, warranted to be of good and merchantable l-^„^„-. quality, and equal *to the average shipments of the season, at L -1 the rate of 30s. 10c?. per quarter, free on board at Odessa, the quantity to be computed at the rate of 100^ chetwerts to seventy-two quarters, the shipment to be made on board the buyer's vessel on arrival at Odessa, which vessel was to be forthwith chartered from thence, and the amount of invoice was to be paid on handing over the same and the bill of lading to the buyers in London, in ready money, less two and a half per cent, discount. The declaration then averred mutual promises between Harris and the defendant, according to the terms of that agree- ment : And the plaintiffs aver that the said Thomas Harris, confiding in the said promise of the defendant, did, after the making of the said promise and before his said bankruptcy, forthwith despatch to Odessa aforesaid a certain vessel called the Stensture, then chartered by the said Thomas Harris for that purpose, which said vessel arrived at Odessa aforesaid within a reasonable time in that behalf, to wit, on, &c., of all which the defendant, at Odessa aforesaid, then had notice : and the plain- tiffs aver that the said vessel called the Stensture arrived as aforesaid at Odessa aforesaid, after the said bankruptcy of the said Thomas Harris and not before, and within a reasonable time after such arrival, and from thence for a long and reasonable time in that behalf, was ready to receive on board at Odessa aforesaid the said linseed j and that one Nicholas Henrick Hedman, then being the master of the said vessel, was ready and willing to deliver to the defendant bills of lading for the said linseed, making the same deliverable to the defendant or his order, of all which the defendant then, to wit, on, &c., had notice, and was then requested by the said N. H, Hedman, the agent of the plaintiffs in that behalf, to deliver and ship on board the said vessel the said linseed : yet, although the said promise of the defendant, at the said time of the said bankruptcy, was and remained, and from thence hitherto continued and still is wholly unsatisfied and unrevoked, and although a reasonable time for the delivery and shipment of the said linseed had long elapsed be- fore the commencement of this suit, the defendant did not nor would, when so requested as aforesaid, or at any time, ship or deliver the said linseed, or any part thereof, on board the said vessel, or any other vessel, P2571 '° pursuance of his *said promise, but then and from thence L J hitherto wholly neglected and refused so to do. By reason where- of the plaintiffs, assignees as aforesaid, have lost and been deprived of divers great gains and profits, which they might and would have derived from the receipt and sale of the said linseed, and from the loading and shipping of the same, and the conveying thereof on board the said vessel, CONTRACT OP SALE. 175 and have suffered great damage from the said vessel not being loaded with the said linseed, and being detained at Odessa aforesaid for a long time, to wit, two months; and although the defendant, before the making of the request hereinafter mentioned, to wit, on, &c., had notice of the said bankruptcy of the said Thomas Harris, and that the plaintiffs were duly appointed assignees of his estate and effects as aforesaid, within a rea- sonable time after the arrival of the said vessel at Odessa aforesaid, to wit, on, &c., and from thence for a long and reasonable time, were ready and willing, and then tendered and offered, to pay the defendant for the said linseed, at the rate and in manner aforesaid, and then requested the de- fendant to hand over to them bills of lading for the said linseed in Lon- don aforesaid, or to deliver to them, assignees as aforesaid, in London aforesaid, the said linseed ; yet the defendant did not nor would, when so requested, or at any time, hand over, and hath not hitherto handed over to the plaintiffs, assignees as aforesaid, the said bills of lading, or any bill or bills of lading, for the said linseed, and hath not, from the time of the making of the said promise, delivered to the said Thomas Harris before his bankruptcy, or to the said plaintiffs, assignees as aforesaid, since the bankruptcy of the said Thomas Harris, the said linseed or any part thereof, or any linseed in pursuance of his said promise, but hath hitherto wholly neglected and refused so to do. Plea. — That the plaintiffs, as the assignees of the said Thomas Harris, did not at any time, within a reasonable time after the bankruptcy 'of the said Thomas Harris and the arrival of the said vessel off Odessa as aforesaid, give notice to the defendant of their intention to adopt the said contract for the purchase of the said linseed, and to abide by the terms thereof; but on the contrary thereof, the plaintiffs therein wholly failed and made default, and by reason thereof the defendant then be- came *and was wholly discharged from all liability to fulfil the r^^nKo-, same. — Verification. L J Special demurrer, assigning for causes, that the defendant has not by his said plea traversed or denied any matter of fact alleged by the plain- tiffs; but has introduced matters of fact not alleged or necessary to be alleged, and upon which no material issue can be taken; and also for that the plea is uncertain, in alleging that the plaintiffs wholly failed and made default, without setting forth, with sufficient clearness, in what matter or thing the plaintiff so failed or made default ; and also for that the said plea is argumentative, in alleging that the defendant became wholly discharged from all liability to fulfil the said contract, without setting forth any sufficient ground for such discharge ; and also for that the said plea is uncertain and illusory in the form in which it is alleged that the plaintiffs, as assignees as aforesaid, did not give notice of their intention to adopt the contract ; and also for that the said plea is no answer to the first breach, but is in other respects uncertain, evasive, arguipentative, and insufficient. The objections insisted upon by the plaintiffs were : — that the fact of the plaintiffs not having given notice of their adoption of the contract, is no answer to the first breach, viz., not loading the linseed on board the vessel. Also, that the plea is bad in not alleging that the defendants were ready 176 BOSS ON COMMERCIAL LAW. and willing to load the linseed on board the vessel, in case they had re- ceived notice : and that it is also bad for the special grounds set forth in the demurrer. The defendant contends, first, that the action ought, under the circum- stances alleged, to have been brought in the name of the bankrupt, and not in' the name of the assignees. Secondly, that there is a misjoinder of breaches, in this, that the first gives the plaintiffs, as assignees, no right of action, whereas, the last breach may do so. Thirdly, that the request to deliver the linseed, in the first breach, is not shown to have been made by any person with competent authority, and in behalf of the plaintiffs in their capacity of assignees ; nor does it appear that they then were assignees, but it alleges that the defendant had notice of the bank- ruptoyj and therefore alleges the very ground on which he was entitled to object to deliver according to the contract. r*9'^QT *The case was argued in Michaelmas Term last by Gleasby L -I for the plaintiffs, and by R. V. Richards for the defendant. The following cases were cited and commented upon : — Wright v. Fairfield, 2 B. & Adol. 727; Schondler v. Wace, 1 Campb. 487; Han- cock V. Gaffyn, 8 Bing. 358; 1 M. & Scott, 521 ; Smith v. Coflan, 2 H. Bl. 444; Boorman v. Nash, 9 B. & Or. 145; Marsh v. Wood, 9 B. & Or. 659 ; and Lawrence v. Knowles, 5 Bing. N. C. 399 ; 7 Scott, 381. The Court took time to consider, and there being a difference of opi- nion amongst the Judges, they now delivered their judgments seriatim. RoLFE, B — The plaintiffs in this cause are the assignees of Thomas Harris, a bankrupt. The declaration states, that Harris, before his bankruptcy, agreed to buy from the defendant about 2000 quarters of linseed, free on board at ■Odessa, at 30s. lOt?. per quarter, the shipment to be made on board the buyer's vessel on arrival at Odessa, which vessel was to be forthwith chartered for thence, and the amount of the invoice was to be paid on handing over the same and the bills of lading to the buyers in London. The declaration then states mutual promises by Harris and the defend- ant, according to the terms of that agreement, and goes on to aver that Harris, in part performance, &c., despatched a vessel to Odessa, which arrived there in a reasonable time, and was ready to receive the linseed on board ; that before its arrival Harris had become bankrupt ; but the master of the ship was ready and offered to receive the linseed on board, and to give bills of lading pursuant to the agreement; that the defendr ant refused to deliver the linseed on board, or any part thereof, by reason whereof the plaintiffs, as assignees of Harris, have suffered damage, &e. The declaration then goes on to state that the plaintiffs afterwards, with- in a reasonable time after the arrival of the vessel at Odessa, gave notice to the defendant of their being ready and willing to pay for the linseed on delivery in London according to the agreement ; yet the defendants refused to deliver, &c., &o. To this declaration the defendant has pleaded, that the plaintiffs did r*2601 °°*' ^'^^^^''^ ^ reasonable time after the arrival of *the vessel at L A Odessa, give notice to the defendant of their intention to adopt the contract. CONTRACT OF SALE. In The plaintiffs have demurred to this plea, and have assigned several causes of demurrer, all founded on the principle that the plea attempts to raise an immaterial issue. On the argument of this case in last Michaelmas Term, it was con- tended on the part of the defendant, first, that the declaration does not state a case which gives a right of action to the assignees ; and, secondly, that if it does, then the plea discloses a good defence. I am of opinion that neither of these propbsitions can be supported. As to the first point, the validity of the declaration : it is clear that assignees of a bankrupt are entitled to the benefit of all contracts entered into by the bankrupt, and which are in fieri at the time of the bank- ruptcy. They may elect to adopt or reject such contracts, according as they are likely to be beneficial or onerous to the estate. In no case can the party who contracted "with the bankrupt set up the bankruptcy against the assignees, as a reason for not doing what he has agreed to do. Where indeed the payment of money or performance of any other duty by the bankrupt, forms a condition precedent to the doing of the act which the contracting party has agreed to do, there, unless the money is paid or duty performed, either by the bankrupt or his assignees, it is plain, on principles altogether independent of any questions arising from bankruptcy or insolvency, that no obligation exists on the other party to perform his part of the engagement. But no objection of this sort can be set up, ex- cept in the case of a mere contract for the sale and delivery of goods, until the time has arrived when the party seeking the benefit of the con- tract fails to do something which, according to its provisions, he ought to do. Until default, no such objection arises, even where the whole matter rests in fieri ; but much less can such a course be pursued where, as in the present case, the declaration shows that a part, and probably no inconsiderable part, of the contract has actually been already perform- ed by the plaintiffs, or rather by the bankrupt whom the plaintiffs re- present. For it will be observed, that in this case the first act to be per- formed under *the contract was the sending of a ship to Odessa, r^ooi -i This was actually done at the cost and risk of the bankrupt. If L J the argument of the defendant be well founded, the bankrupt or his estate must sustain the loss occasioned by his having thus far fulfilled his part of the contract. It was endeavoured to liken this to a case of stoppage in transitu, to which it was supposed to bear a strong analogy. But it does not appear to me that any such analogy exists. Where a vendor of goods has put them into the hands of a carrier, in order to their being by him forwarded and delivered to the vendee, then, if the vendee before actual delivery to him becomes insolvent, the vendor has a right to resume the possession with which he had previously parted. It may be conceded, that the same circumstances which would justify a seller in stopping the goods in transitu, will also warrant his retaining them before the transitus has commenced, where nothing remains to be done but to deli- ver the goods to the purchaser. But here the proposed transit of the linseed from Odessa to London was not, as it seems to me, a transitus within the meaning of the doctrine relative to stoppage in transitu. I 178 ROSS ON COMMERCIAL LAW. consider it to be of the very essence of that doctrine, that during the transitus the goods should be in the custody of some third person, intermediate between the seller who has parted with, and the buyer who has not yet acquired, actual possession. In this case the linseed was to be brought to London, not in the ordinary course of delivery by a seller to a buyer, but under the terms of a special contract, which reserved to the defendant, the seller, the exclusive control over it by, means of the bills of lading. It was one of the terms of the contract, that the defendant sljould in a certain stipulated mode cause the linseed to he transported to London, in order that it might there be by him delivered at a price agreed upon to the bankrupt. This the defendant was bound to do, in the same way as if he had agreed to do any other act ; as, for instance, to build a ship, to manufacture goods, or the like ; and he had no right to anticipate that when he had performed his part of the con- tract, the bankrupt,' with whom he had contracted, would not by himself or his assignees perform what he had agreed to do. If the contract r*9fi91 ^^^ beneficial to the bankrupt, the assignees *would of course' L J adopt it ; if it was onerous, then the defendanfwould have to look to the bankrupt himself, the sole party with whom he contracted, and whose liability would continue notwithstanding the bankruptcy, as was established by the case of Boorman v. Nash, 9 B. & C. 145. On these grounds I think the declaration discloses a state of facts whieh gives the plaintiffs a right of action. Supposing this to be so, then the only other question is, whether the plea states matter which destroys the right of action appearing on the declaration ? I think it does not. All beneficial interests in the bank- rupt are by operation of law transferred to the assignees, including such a right of action as exists in the present case. The assignees have the right of adopting or repudiating the contracts of the bankrupt, according as they may think them likely to prove beneficial or the contrary. The proposition implied and asserted by this plea is, that the assignees are not entitled to the benefit of the bankrupt's contracts, unless, within a reasonable time, they give notice of their intention to adopt them. But for this proposition I find no warrant either in the statutes or the decided cases. All that the assignees are bound to do is, to fulfil the bankrupt's part of the engagement when the proper time arrives. If they expressly waive the contract, or without any express waiver, if at the proper time they omit to do what, by the terms of the contract, they are bound to do, in the first case they certainly will, and in the second they probably may, absolve the other party from all obligation towards the assignees. But in such a case the proper course for the defendants would be to plead, not .that the assignees had not given notice of adopting the con- tract, but that they had repudiated it, of which the express waiver cer- tainly would, and the implied waiver, by omitting to do what they . ought to do, might, under the. circumstances, afford sufficient evidence. In this case it is not alleged by the plea that there was any express waiver, or any implied waiver, by omitting to perform any part of the contract, which, as representitig the bankrupt, they were bound to per- form ; and on the contrary, it is clear, from the pleadings, that they CONTRACT Oi" SALE. 179 were always ready to do all which the bankrupt would have been bound to do : and I therefore think that *nothing is stated in the plea runao-i defeating the plaintiffs' right of action as disclosed in the de- L J claration, and consequently that judgment ought to be for the plaintiffs. Gurnet, B. — The case of the plaintiffs stands upon the 12th and 63d sections of the Bankrupt Act, 6 Geo. IV. c. 16. The 12th section of the Act specifies the property of the bankrupt which the Commis- sioners shall have power to dispose of. " All his money, fees, offices, annuities, goods, chattels, wares, merchandise and debts, wheresoever they may be found or known." The 63d section vests the bankrupt's property in his assignees. The words are, " all the present and future estate of the bankrupt, where- soever the same may be found or known, a'nd all debts due or to be due to the bankrupt." Although the words in these two sections are not precisely the same, they must be considered as denoting the same matters. The object of the act, as stated by Lord Tenterden, in the case of Wright V. Fairfield, is to give the assignees, for the advantage of the creditors, every beneficial matter belonging to the bankrupt's estate. What, then, is this case ? The declaration states that Harris, the bankrupt, had entered into a contract with the defendant, that he (the bankrupt) would charter and send a vessel to Odessa to receive a cargo of linseed; that the defendant contracted to deliver the said cargo on board, upon the arrival of the vessel at Odessa, and that bills of lading were to be made out to defendant's order, and the bankrupt contracted to pay for the linseed in ready money, on receiving the invoice and the bills of lading in London. That in part fulfilment of this contract, the bankrupt did charter and send a vessel to Odessa to receive the cargo ; that, prior to the arrival of the vessel at Odessa, the bankruptcy of Harris occurred ; that the master of the vessel, as agent for the assig- nees, requested the defendant to ship and deliver the linseed, which he neglected and refused to do. It is contended by the defendant, that the bankruptcy absolved him from the performance of his part of the contract. I do not think that it had that effect. If the bankrupt had not chartered and scut the vessel to Odessa, he would have been, notwithstanding his bankruptcy, *liable to an i-^no^-i action for a breach of contract. Here he had performed his part L J of the contra(^t, so far as it could at that time be performed. He had chartered and sent a vessel. He must thereby have incurred considerable expense. If he could not, in his own name, have insisted on the per- formance of the contract, because he was divested of his property and his rights, I think that it follows that his assignees, who had become his representatives, may enforce the contract, it being a contract benefit cial to the estate, and one in whicK the creditors had an interest. The defendant was not required to place the property in the hands of the bankrupt, or even in the hands of the assignees ; and to come in for a dividend, the defendant would have still preserved his control over the cargo, inasmuch as the bills of lading were to be in his own name, 180 ROSS ON COMMERCIAL LAW. and the cargo was not to be delivered in London until payment was made in ready money. It is contended by the defendant that this resembles the case of stoppage in transitu. Stoppage in transitu stands alone in our law. It is founded in strict justice. A person who has sold and sent off goods to a purchaser may, on the bankruptcy or insolvency of the pur- chaser, repossess himself of the goods, if he can do so before they have arrived at the end of their journey. This is to prevent his goods from -being thrown into the mass of an insolvent estate, leaving him to come in for a dividend with the creditors in general, who would thus have the benefit of his goods. The case before the Court bears no resemblance to this. This linseed, if it had not been stopped by the defendant, would not have gone towards a dividend in the bankrupt's estate, leaving the defendant to come in for his share of that dividend ; but the estate would, as in justice it ought, have received the benefit of a beneficial contract made by the bankrupt, and which contract has become beneficial by means of the expense which he incurred in chartering and sending the vessel to Odessa. If the declaration is sufficient, the only remaining question is, Whether the defendant's plea is an answer to it ? and I think that it is not. r*9fi'il '^^^ P^®* '^' ^^^^ *'^® plaintiffs (the assignees) did not, within L J *a reasonable time after the bankruptcy, give notice to the defen- dant of their intention to adopt the contract. That is no answer to the plaintiff's declaration, which alleges that he had notice of the arrival of the vessel at Odessa, and that ,the master of the vessel, as agent for the assignees, within a reasonable time after the arrival, requested him to ship the cargo, which he neglected and refused to do. For these reasons, I am opinion that the judgment should be for the plaintiffs. Parke, B. — In this case the assignees sue on a contract made between the defendant and the bankrupt, by which the bankrupt contracts to charter and send a vessel from London to Odessa, and the defendant to sell, and ship on board there, on the arrival of the vessel, a cargo of linseed, the bills of lading for which were to be made deliverable to the defendant's order, (so as to preserve his lien for the price,) and the bank- rupt was to pay. the price in ready money, on receiving the invoice and bills of lading in London. The declaration assigns as a biieaoh, the non- shipment of the cargo at Odessa, where the vessel arrived after the bankruptcy, of which it is stated the defendant had notice. The plea avers, that the assignees did not, within a reasonable time after the bank- ruptcy, and after the arrival at Odessa, give notice to the defendant of their intention to adopt the contract ; and there is a demurrer to this plea, which raises two questions — first, whether the matter contained in the plea is an answer to the action — and secondly, whether the declara- tion discloses a good cause of action. I am of opinion that the assignees are entitled to recover. There can be no doubt that the effect of the assignment under 6 Geo. CONTRACT OF BALE. 181 IV. c. 16, § 12 and 63, is to vest in the assignees, to use the language ' of Lord Tenterden in Wright v. Fairfield,' 2 B. & Ad. 732, every bene- ficial matter belonging to the bankrupt's estate, and amongst the rest, the right of enforcing unexecuted contracts, by which benefit may accrue to that estate, and such as may be performed on th(?:part of the bank- rupt by the assignees : such, in short, as would pass as part of his per- sonal estate to his executors if he had died, which would not include that description of contract where the personal *skill or conduct r*o('o-i of the bankrupt would form a material part of the consideration. L J In order to enforce these contracts, it is only necessary that the assignees should perform all that the bankrupt was bound to perform, as precedent or contemporary conditions, at the time when he was bound to perform them ; and the bankruptcy has no other effect on the contracts than to put the assignees in the place of the bankrupt, neither rescinding the obligations on either party, nor imposing new ones, nor anticipating the period of performance on either side. If the assignees do all that the bankrupt ought to have done, they may recover against the contractor the damages which the bankrupt himself could have recovered if he had performed his contract ; if they omit to do so, they lose the benefit of the contract, and the other con- tracting party has his remedy against the bankrupt, to which the certifi- cate is no bar : Boorman v. Nash, 9 B. & C. 145. To apply this to the present case, the bankrupt having already per- formed the first part of his contract, by sending a ship to Odessa, the next thing was that the ship should be ready to receive the cargo on board. This was also done, and as the defendant refused to load the ship, there was a breach of contract, for which the assignees could sue, for the performance of it would have been beneficial to the bankrupt's estate, and would have been the only mode by which the outlay in char- tering and sending the vessel could be repaid. The assignees were not bound to pay, or to be ready to pay the price, until the arrival of the cargo in London, and delivery of invoice and bill of lading — a period which had not yet arrived. This part of the case appears to me to be perfectly clear, and consequently the plea, which is framed on the sup- position that the law requires the assignees to give express notice, in a reasonable time after the bankruptcy, of their adoption of the contract, is bad. The law only requires them to perform the bankrupt's part of it as and when he should have done it himself. But it is said that the declaration itself discloses a sufScient reason for the non-performance of the contract, because it states the bankruptcy, and notice of it, before the time for loading the cargo; and it is said that by analogy to the doctrine of *stoppage in transitu, the rjinp^-i defendant might, on the receipt of that notice, decline to proceed L J to fulfil the engagement on his part. But the doctrine of stoppage in transitu applies only to the case of goods sold and delivered ; for the delivery to a carrier or middleman is a delivery to the party, and in cases of bankruptcy and insolvency, the law, founded on an equitable principle, permits the unpaid vendor, at any time before the arrival of the goods at their place of destination, 182 ROSS ON COMMERCIAL LAW. or the vendee's actual possession, to resume possession, and put himself in the same position as if he had not parted with it, (whether it enables hipi also to rescind the contract, is a point yet unsettled. Clay v. Harri- son, 10 B. & C. 99, and which I need not now discuss.) But this privilege in case of bankruptcy or insolvency, (for it belongs to both alike) has never yet been extended further than to allow re- sumption of possession after the contract was complete by delivery, and to undo as it were the delivery ; there is no trace of s^ny authority for saying, that bankruptcy or insolvency excuses the party contracting with the bankrupt from performing any other unexecuted part of his contract. To allow a person to retire from his agreement before it is executed, and the goods ready to be delivered, is to deprive the bankrupt, and those who represent him, of all power to have the goods, on payment of the stipulated price, and would work the greatest injustice where the bankrupt had already incurred expense. If there were a contract to build a vessel for the bankrupt, he supply- ing a part of the timber, and paying the price by instalments, the last on delivery, and the bankruptcy occur after the timber has been supplied, and some instalments paid, and before the vessel is complete, it could not be contended for an instant, that the builder could refuse to com- plete his contract on the ground of that bankruptcy, and render all the previous expense of the bankrupt unavailing ; and yet that case is in principle similar to the present. The bankrupt has incurred the expense of chartering a ship; is the defendant to be at liberty to refuse to per- form what he has engaged to do, on the speculation that the bankrupt or his assignees will not pay ? The amount of the bankrupts expense is immaterial, and it might happen in the case of articles of great bulk, r*9fi8T *^*'' *^® *cost of the vessel out and home constituted a very L J large part of the, value of the goods here; is the bankrupt to incur the expense, and the defendant to be at liberty to refuse to deliver on board and throw the whole of it on the estate ? It appears to me that these questions must be answered in the nega- tive. The only authority cited in the argument for the position, that, in case of an unexecuted contract, an intervening bankruptcy excuses the per- formance, is the case of Marsh v. Wood, 9 B. & C. 659. It is enough to say, that it was decided on the ground that the property in the subject- matter of the dispute was, by the bankruptcy, taken out of the bank- rupt, and the submission was therefore no longer mutual, and not on the principle that bankruptcy dissolves the contract. For the above reasons I am of opinion, that the plaintiff is entitled to our judgment on this demurrer. Lord Abinger, C. B — This case arises upon the pleadings, which present the following state of facts : — That the bankrupt Harris had agreed to buy of the defendant about 2000 quarters of Odessa linseed, at the price, of 30s. lOd. per quarter, free on board, to be delivered by the defendant at Odessa on board of a ship which Harris was to charter for the purpose of receiving the same; the invoice and bills of lading CONTRACT OF SALE. 183 were to be sent by the defendant to London, and the price was to be paid by Harris upon their delivery to him in cash ; that the bankrupt did accordingly charter a ship, which arrived at Odessa after he became bankrupt, of which, as well as of the bankruptcy, the defendant had notice, and that, he afterwards was applied to by the master of the vessel, as agent of the plaintiffs, to ship the goods, which he refused to do. Upon this contract it is manifest that the defendant was to part with the, possession of bis goods of great value, upon the faith that the buyer, at a future day, when the bills of lading should arrive in London, would pay him for them. If he had actually shipped the goods before he had notice of the bankruptcy, and the bankruptcy had occurred after- wards, I think he might have stopped the goods in their progress to the buyer, had it been in his power to do so; and if the goods had p^itocn-i •actually arrived at their destination, he might still have refused L J to hand over the bills of lading and invoice till the price was paid. The question then is. Whether under the actual circumstances ho was compellable by law, knowing that the bankrupt could not pay him, to expose himself to the risk of freight and insurance, and sending his goods perhaps to a falling market, upon the chance only of its suiting the interest or the pleasure of the assignees to pay him ? For it has not yet been contended that they were bound, or could have been com- pelled to pay him. I am of opinion that it follows from the right of the vendor to stop the goods in transitu, if he hears of the bankruptcy of the, vendee before their delivery, that he has, a fortiori, a right to refuse to part with the pos- session of them at all, if he has notice of the bankruptcy whilst they remain in his actual possession. I think that the mere insolvency of the vendee would have been a bar to any action brought by him under these circumstances ; and if he could not, by reason of his mere insolvency, have maintained an action for the refusal to ship the goods, that no right to maintain such an action vested in his assignees by the event of his subsequent bankruptcy. Having the misfortune to differ with the other members of this Court upon this question, I think it right to go somewhat more fully into the subject than I should otherwise have done. Although the question of stoppage in transitu has been as frequently raised as any other mercantile question within the last hundred years, it must be owned that the principle on which it depends has never been either settled or stated in a satisfactory manner. In courts of equity it has been a received opinion that it was founded on some principle of common law. In courts .of law it is just as much the practice to call it a principle of equity, which the common law has adopted. This was strongly insisted upon by Mr. Justice BuUer, in his celebrated judgment in the House of Lords, in the case of Liekbarrow v. Mason, 4 Bro.- P. C. 57. It has also been said by Lord Kenyon, that it was a principle of equity adopted by the common law to answer the purposes of justice. The most eminent equity lawyers that I have had 184 BOBS ON COMMERCIAL LAW. r*07m *^® opportunity of conversing with in times that are *gone by, L J were unanimous in repudiating it as the oflFspring of a court of equity. The first case that occurred upon this subject affords some au- thority for the opinion of Mr. Justice Buller and Lord Kenyon. It is the case of Wiseman v. Vandeput, 2 Vern. 203, in 1690. That was a bill filed by the assignees of the bankrupt against the vendor. The Lord Chancellor directed an action of trover to be brought by the plaintiffs, upon which they recovered a verdict. It is clear, therefore, that the rule had not at that time been adopted at law. The Lord Chancellor, how- ever, adopted it in equity, and notwithstanding the verdict at law for the plaiatiffs, made a decree against them. The next case is that of Snee v. Prescott, 1 Atk. 24. Lord Hardwicke again applied the rule to a certain extent in equity. But it is remarkable that he received evidence of what was the custom of merchants on this point ; and he expressly founds his decree upon the evidence of the custom of merchants, as well as upon the justice of the case. This decision occurred about the year 1742 or 1743. The next case is that of Ex parte Wilkinson, in 1755, referred to in D'Aquila v. Lambert, Ambler, 899, which took place in 1761. There the Lord Chancellor again grounded his decree on the usage of merchants, and stated that the several previous decisions which had taken place to the same effect, had given great satisfaction to the merchants. Numerous cases have followed at law, showing that the right of stoppage in transitu, under certain circumstances, is now part of the common law. Nevertheless, owing perhaps to the doubtful state of its parentage, many unsatisfactory and inconsistent attempts have been made to reduce it to some analogy with the principles which govern the law of contract, as it prevails in this country between vendor and vendee. It is to be observed, however, that the right of stoppage in transitu is not peculiar to the law of England. It existed, I believe, in the commercial states of Europe. The cases I have already referred to, show that it was practised in the Italian States. That it existed in Holland was proved in a case tried by Lord Loughborough, and mentioned by him in his judgment in the case of Lickbarrow v. Mason, 1 H. Bl. 364. That it is the law of Russia was also proved in the oases of Inglis v. Usherwood, 1 East, 515, r#27n ^'^^ "^ Bohtlingk *v. Inglis, 3 East, 381. It appears also, on L J reference to the Chapitre de la Faillite, in the Code Napoleon, that the law of France on this subject is in all points similar to our own. It is known that this celebrated code is chiefly a digest of the law of France as it existed before the Revolution. Indeed the right of stopping in tran- situ had, before the composition or digest of that code, acquired the name in the Frenph law of "Revendication." It may, therefore, be presumed to be a part of the law of merchants which prevails generally on the con- tinent. The proof of which, from time to time, combined with its man- ifest justice and utility, has at length introduced it into the common law of England, of which the law merchant properly understood has always been reckoned to form a part. In considering, therefore, new questions that may arise on this branch of the law, I think it safer to rely on the course and effect of the actual CONTRACT OF SALE. 185 decisions that have taken place, than upon the reasoning and dicta by which it has been attempted, not very successfully, to develop the prin- ciple, and to make it conformable in appearance and dress, if I may say so, with the family of English law into which it has been adopted. The first remark I would make is, that amongst the vast number of cases discussed upon this subject, this is, as far as I know, the first upon which the assignees of a bankrupt vendee of goods have brought an ac- tion upon the contract of sale against the vendor for non-delivery. There is, indeed, an example of an action of trover by the assignees of the bankrupt vendee against the vendor, in the case of Hanson v. Meyer, 6 East, 614. That action appears to have been founded upon some of the decisions, that a delivery of part of the goods sold by an entire con- tract was a delivery of the whole, and that the vendor could neither stop in transitu nor retain the remainder, because the property of the whole became indefeasibly vested in the vendee by the delivery of a part. The plaintiflF therefore brought an action of trover to recover the remaining part of a parcel of starch sold by an entire contract, which had not been actually delivered before the bankruptcy of the vendee, who had whilst solvent received th e greater part. The Court, however, decided against the *plaintifi', upon the narrow ground that the starch was by the r^o^o-i contract to be weighed before it was delivered, and this remainder, L J not being weighed, could not be said to be delivered. It is impossible to read that case without being satisfied, that if the starch had been weighed, the decision would have been the same. However, as far as it goes, it is a decision that the assignees of the bankrupt vendee can have no property, as against the vendor, in any part of the goods which have not been actually delivered, or of which the transitus has not terminated. But by the law of England, the contract for the sale of goods, and a delivery to a carrier in compliance with the sale, transfers the property from the vendor to the vendee, and the property of a bankrupt vests in his assignees. Nevertheless, neither the vendee, if he become insolvent, nor hia assignees, if he become bankrupt,,can maintain an action of trover against the vendor or his agent, if the vendor, before the arrival of the goods at their destination, take measures to prevent their delivery to the vendee or his assignees. Without stopping to inquire whether this right of the vendor to stop the goods in transitu be an equitable lien retained by him, or a privilege resulting from the latent j'vs jproprietaiis, or a power reserved to him by implication to rescind the contract in certain cases, or (which is perhaps the most reasonable) an arbitrary rule adopted for the advantage of trade, — I would ask, of what avail is the exercise of the right, if the insolvent vendee, or, he being a bankrupt, his assignees, may bring an action against the vendor upon the original contract of sale, and claim damages for the non-delivery of the goods ? Is not the inconsistency of these rights on the one side and on the other a sufficient proof that they cannot both exist? But it is said that the phrase " stoppage in transitu," ex vi termini, implies that a transitus must commence before it can be exercised. In other words, that a vendor, in order to secure himself from the loss of 186 ROSS ON COMMERCIAL LAW. his goods, by delivering them to a bankrupt vendee, must send them away, that he may exercise the right of bringing them back again, or of preventing their delivery. That if he agrees to sell goods upon credit, and the vendee becomes insolvent before they are delivered, he cannot -„„- *refuse to deliver them to the vendee or his assignees, upon the L J application of the one or the other in person ; but he may pre- vent the delivery to either, if he will only take the trouble before they apply to make the goods set out upon their journey — that he must deliver them to a carrier, in order to prevent their delivery to the vendee. Surely the absurdity of this conclusion is a sufficient refutation of the argument. It is indeed true that a stoppage in transitu, literally speak- ing, can have no place before a trdnsitus commences. But the reason why a vendor possesses the right to stop in transitu is, that he is not bound to deliver to an insolvent vendee or his assignees. If he were so bound, he could not stop them in transitu, the right to do which proves, a fortiori, a right to refuse to part with the possession, in ease of insolvency of the vendee. If indeed it were true that the assignees of a bankrupt might maintain an action to recover damages for the non- delivery of goods sold to the bankrupt, numerous cases must have occurred in which it would have been their interest to do so. But not only has no such action been brought, but I am not aware of any dictum to that effect previously to that of Lord Tenterden, in the case of Boor- man V. Nash, where, in support of an action cleiarly maintainable against the bankrupt for damages which could not be proved under his commis- sion, by reason of his refusal to accept oils, sold to him before his bank- ruptcy, to be delivered at a period which arrived after his bankruptcy, that learned judge is made to say that the contract was not rescinded by the bankruptcy (which in one sense is true), and that the assignees might have enforced it if they had thought fit ; from which last part of that dictum I must beg leave entirely to dissent, as being altogether inconsistent and irreconcileable with any principle on which the right of stoppage in transitu can be founded. G-enerally speaking, bankruptcy is no discharge of the bankrupt from an executory contract made before the bankruptcy, and which he is free to perform afterwards. There may possibly be many cases which ingenuity may suggest, where, from the nature of the contract and the circumstances attending it, the solvent party as well as the bankrupt may be liable in equity and at common r*274.n ^^^ *° ^'^^ performance of it, or to the payment of *damages. L J Each of these cases will depend on its own circumstances, which no doubt will develope some rule or principle of law or equity, by which the particular case is to be governed. But there is a certain class of contracts, in which it is manifest that bankruptcy must put an end to all claim of the bankrupt or his assignees to the performance of them by the solvent party. The contract of part- nership is a familiar instance j and in every case where the motive or consideration of the solvent party was founded, wholly or in part, upon his confidence in the skill or personal ability of the bankrupt, if the bankrupt, from his circumstances, is unable to perform his part, the assignees, as it appears to me, are not entitled to 'substitute either their CONTRACT OF SALE. 187 own capacity, or ekill, or credit, for that of the bankrupt. Suppose, for example, that a man of wealth, by way of encouraging bankers whom he. wishes to patronize, should agree with them for a certain term of years to keep his cash with them, upon the faith of which agreement they take a shop, purchase strong boxes, and incur other expenses necessary to carry on the trade. Upon their bankruptcy, their assignees would surely have no right to insist upon keeping his cash for the re- mainder of the term, or upon their right to find him a banker. An instance of another kind, but depending on tHe same principle, occurred between the late Sir Walter Scott and his booksellers, who had become bankrupts. He had engaged to write a novel, which they were to have the benefit of publishing, in consideration of which they were to pay him £4000, for which they had given him their acceptances in anticipation. Before the work was finished they became bankrupt, whereupon Sir Walter Scott took up all the bills he had negotiated. Upon the conclusion of his work, when it was ready for the press, the assignees contended, that by virtue of the contract they had a right to the profit of publishing it, which they were ready to undertake. Sir Walter Scott suggested several grounds to show that the credit, the skill,' the judgment, integrity, and personal character and reputation of a publisher were matters of great importance to an author, on which the success and reputation of his works might greatly depend, and therefore insisted that, the considera- tion for his contract having respect to the personal credit and qualities of *the bookseller, he was by their bankruptcy discharged from r^n^c-i his contract. I must own that his reasoning appeared satisfac- L J tory to me ; but a more obvious illustration of the principle on which it rested would have been afforded by reversing the case, and supposing that Sir Walter Scott had been the bankrupt and his booksellers solvent, would they have been content to pay their £4000, and take their risk of publishing a novel written^ by the assignees of the novelist ? With- out, therefore, presuming to suggest any rule that would govern all pos- sible contracts upon the event of the insolvency of either party, I shall confine myself to the single case of a contract for the sale of goods, where the bankruptcy or insolvency of the buyer intervenes before the period for the payment has arrived, and before the goods have come to the actual possession of the buyer or his assignees, or to the ultimate place of their destination. In other words, I confine myself to the single case where the right of stoppage in transitu, after the transit has commenced, may be exercised : and it appears to me very plain, that wherever that right may be exercised, it is a proof, a fortiori, that the vendor is dis- charged by the insolvepcy of the vendee from the obligation of delivering the goods at all, and consequently from the obligation of making the transitus commence. If it be necessary to look for any principle on which this right depends, it may be found in the implied condition in every sale of goods, that the buyer if he lives, or his estate if he dies, will be able to pay for them. To him and to his ability alone the vendor trusts, and he is not bound to take the credit of any other man. He inay, if he think fit, despatch 188 ROSS ON COMMERCIAL LAW. the goods to the assignees upon their request, and take them for hia paymasters; but if he does so he makes a new contract with them. In the case where the vendor is not to part with his personal possession of the goods till he is paid, it is clear that neither the bankrupt nor his assignees can have the goods without payment. Their credit is no part of the contract, and the position of the vendor is not changed by the insolvency. But where the goods are to be paid for at a future day or where the vendor is to part with the actual possession of them by sending them by a carrierj though he is to receive the money upon deli- very aft* their arrival, in either of these cases he trusts to the credit of r*97fi1 *^^^ bankrupt : the assignees are not bound to pay for the goods L -1 when they arrive. The vendor has not contracted either to give them credit, or to take the risk of their responsibility or their pleasure. The only consideration for his agreement to despatch the goods is the credit he gives to the personal ability of the vendee to pay for them when they arrive, and if that consideration fails, the contract is voidable at his pleasure. By the law of France, to which I have already referred, it Is provided that the syndics of the insolvent are entitled to a delivery of goods stopped in transitu, if they will pay the vendor the full price the bankrupt has agreed for. This is a positive rule ; and it must be understood that they are to make actual payment, and not to substitute their credit or that of any other man for that of the bankrupt, for that would be a new contract. The rule applies to a case of actual stoppage iri transitu, where, to a certain extent, the vendor has acted upon the credit of the vendee, and not to the case of a notice of bankruptcy before the goods are despatched. It is no new principle in the law of England to say that a contract is void on the ground of fraud. Many cases have occurred where contracts of purchase, made with the fraudulent intent to cheat the vendor, and dispose of the goods at a swindling price to raise money, have been deemed void. In some cases such contracts have been made the founda- tion of criminal charges of felony or fraud. If a man, intending bank- ruptcy, were to purchase goods for the mere object of making a better dividend, or of preferring a favourite creditor, without the least intention of paying for them, I presume, upon the clear proof of such facts, the vendor would be held absolved from his contract. Now bankruptcy and insolvency are presumably founded in intention and fraud, and the law, which protects the vendor in such a case from the loss of his goods, by delivery of them to a bankrupt or insolvent, may very properly be con- sidered as proceeding on the principle, that a contract to purchase goods by one, who shortly' after becomes bankrupt or insolvent, was a fraudu- lent contract, and void as against the vendor, though not against the vendee, who could not set up his own fraud, to avoid his contract. I consider the absence of all example of the assignees of a bankrupt ven- r*2771 ^^^ bringing an *action for the non-delivery of goods, a very L -I cogent proof of the opinion which has prevailed on this subject. But there is a case of an action brought by an insolvent vendee against the vendor, the decision of which goes the full length of establishing the position I have laid down, that the insolvency of the vendee discharges OONTRAOT OF SALE. 189 the vendor from the obligation of parting with the goods upon credit. It is the case of Reader v. KnatchbuU, tried at the Sittings at West- minster after Hilary Term, 1786, before Mr. Justice BuUer. " The plaintiff declared upon an agreement by the defendant to deliver to him a quantity of Manchester cottons. The defence was, that after making the contract the plaintiff had compounded with his creditors. Mr. Justice Buller directed the jury, that if they believed the plaintiff was really in such a situation as to be unable to pay for the goods, that was a good defence in point of law to the action ; and the jury accordingly found a verdict for the defendant." A note of this case will be- found in the report of Tooke v. Hollingworth, 5 T. R. 218. This authority ought to be deemed conclusive upon a question in which common sense and common justice point to the same conclusion. Now to apply the principle to the present case. Is it a case in which the vendor, after the commencement of the transitus, might have stopped the goods, and prevented their delivery to the bankrupt ? That it is so is proved by the case of Bothlingk v. Ellis, already cited, in which, though the vendee, by the contract, was to charter a ship and send it for the goods, and though the goods were accordingly shipped in that vessel, it was held that the vendor might still exercise the right of stoppage in transitu ; that case is indeed exactly similar to the present, in all points but one, which makes this a stronger case for the exercise of the right, and that point is, that, by the contract, here the vendor was to retain the bills of lading in his own hands till they were exchanged for the money. It is the case, therefore, of a contract to sell goods to be delivered at a future time, before which the vendee becomes bankrupt. If, therefore, the vendor should ship the goods before he has notice of the insolvency, he has a right to stop their delivery to the insolvent, who cannot pay him for them. Is he bound, then, after previous notice of the bank- ruptcy, to *send the goods upon the chance that the assignees rj^n7on may take them and pay him ? Surely not ; the assignees are L -I under no obligation to pay him ; they may refuse to take the goods and leave them on his hands. He is, therefore, according to the opinion of the other n]^mbers of this Court, reduced to this dilemma, that he is bound to send the goods to London, there to take the chance of market, which, if favourable, may tempt the assignees to receive them, and pay the price; if unfavourable, must bring a loss upon him, even of the whole, should the price not be equal to the freight. Whereas the very object of his contract was, to sell for a fixed price, and have nothing to hazard. Under these circumstances, it appears to me that he was discharged by the insolvency of the vendee from the obligation to send forward the goods at all : that according to the case above referred to, he would have had a good defence against the insolvent, had he, being insolvent, brought an action for the refusal to ship the goods before his bankruptcy; and consequently that no cause of action for not shipping the goods vested in the assignees. I observe the declaration is so framed as to embrace the alternative of a right of action in the assignees upon the original contract, and a right Fjebruakt, 1855.— 13 190 EOSS ON COMMERCIAL LAW. of action derived from their notice that they would perform the contract in place of the bankrupt. But if no right of action existed in them to compel the shipment of the goods, the declaration is bad; and I am.of that opinion. But if it could be supposed, which I think it cannot, that any right of action could arise out of their notice that they were ready and willing to receive and pay for the goods, then, as such notice must have been given in reasonabl§ time, the plea which alleges that it was not given in reasonable time must be good, so that in either case the judgment on the demurrer ought to be. for the defendant. I would add Only one remark, to distinguish the case of an executor from that of an assignee. A party contracting to sell goods must con- template the existing and continuing solvency of the vendee till the goods are paid for, but he cannot contemplate the continuance of his life, r#9'7Ql ^^ ^® *" make that an implied *eondition of the delivery. He L -■ contracts, therefore, in point of law, with the vendee and his executors, but not with the vendee and his assignees. Judgment for the plaintiffs. The opinions delivered in thia case are too valuable to be omitted In the present ■work, but the soundness of the judgment may be doubted. The judgment would appear to run counter to the general principle of law, that a seller is not bound to part with his goods when in consequence of the insolvency of the purchaser, he is not certain that the price stipulated will be paid. It may be true that the in- solvency of a purchaser does not rescind a contract of sale, and that the assignees of the bankrupt may adopt the contract if they please ; but it would rather seem that notice of their adoption of the contract should be given to the seller in rea- sonable time, before he is bound to cede possession of his goods. The ground of the opposite opinion appears to have been, that in chartering and sending a ves- sel for the goods, the purchaser had implemented his part of the contract, and that considerable expense had been thereby occasioned. Is it not, howeTer, a sufficient counter consideration that, if on the arrival of the goods, the assignees of the bankrupt had rejected the contract, the goods would either have required to have been carried back to the seller, and great unnecessary expense have there- by been occasioned, or they must have been sold for what they might bring, and a loss must also have been thereby occasioned to the seller ? As therefore a loss was likely to be occasioned in either case, equity would seem to demand that the loss should fall on the insolvent purchaser, rather than on the solVent seller. *A NOTICE TO BE EFFECTIVE AS A STOPPAGE IN TRANSITU MUST L -I BE GIVEN TO THE PERSON WHO HAS THE IMMEDIATE CUSTODY OP THE GOODS, OR IP GIVEN TO THE PRINCIPAL WHOSE SERVANT HA6 THE CUSTODY OP THEM, IT MUST BE GIVEN AT SUCH A TIME, AND UNDER SUCH CIRCUMSTANCES, THAT THE PRINCIPAL, BY THE E3MIB- OISE OP REASONABLE DILIGENCE, MAY COMMUNICATE IT TO HIS SER- VANT IN TIME TO PREVENT THE DELIVERY TO THE PURCHASER. WHITJSHEAD v. ANDERSON. Hilary Term, 1842.— B. 9 M. & W. 518. Trover for timber, alleging the possession by the plaintiffs as assignees, and a conversion by the defendants after the bankruptcy. OONTEAOTOFSALK. 191 Ploas, firstj not guilty ; eecondly, a denial of the plaintiffs' possession of the goods. All points as to any right of stoppage in transitu were to be raised upon the first and second pleas. At the trial, at the Liverpool Spring Assizes 1841, a verdict was found by consent for the plaintiffs, damages J2000, subject to a special case for the opinion of this Court, to be stated and settled by a barris- ter; wherein it was agreed that, if the opinion of the Court should be in favour of the defendants, then the verdict so found for the plaintiffs should be set aside, and a verdict entered for the defendants ; but if the opinion of the Court should be in favour of the plaintiffs, then that the damages should be subject to reduction according to the finding of the barrister. Blchard Benbow, before his bankruptcy, was a timber merchant at Liverpool, and on the 12th of March, 1840, contracted with Charles Birnie, owner of the ship Monarch, that the ship should proceed to Quebec, and there load a full cargo of timber, and should proceed there- with to Wyrewater, otherwise called Port Fleetwood, in the county of Lancaster, and deliver the same, on being paid freight for the timber at a certain rate. It was also agreed that the ship should be consigned to Thomas Benbow of Wyrewater, the brother of Eichard Benbow. On the 1st of A.pjfilj 1840, E. Benbow contracted with *George r^noi n Burns Symes, a merchant at Quebec, then at Liverpool, for a L J cargo of timber for the Monarch, to be shipped at Quebec, and to be paid for by the purchaser's acceptance of the seller's draft at ninety days ; and on the 25th of June, the Monarch sailed with the cargo. On the 1st of July, 1840, Symes wrote a letter to John Chaffers, the manager of the Eoyal Bank in Liverpool, with which bank Symes had an account, inclosing in the letter a bill of exchange, drawn by him on E. Benbow, for £533, 8s. Qd., the price of the Monarch's cargo. On the 27th of June, 1840, a fiat of bankruptcy issued against Ben- bow, founded on an act of bankruptcy committed on the 26th of June, 1840, and he was duly declared a bankrupt, and the plaintiffs were, on the 8th of July 1840, appointed his assignees. On the 9th of July, Mr. Birnie, the owner of the Monarch, having heard sonie fumors affecting the credit of E. Benbow, wrote from Mon- trose a letter to the captain of the Monarch, stating the rumors, and requesting the captain to intimate to Thomas Benbow, that before the delivery of the cargo, he, T. Benbow, must produce approved security. The plaintiffs directed T. Benbow to take charge of the cargo of the Monarch for the assignees, on her arrival at Wyrewater. The bill drawn by Symes on Benbow for the price of the cargo was not accepted, and has not been paid. The defendants^ who are merchants at Liverpool, are correspondents of Symes, and on the 18 th of July, 1840, despatched Eichard Grindley, one of their clerks, to Wyrewater, with instructions to go on board the Monarch on her arrival there, to serve the notice of stoppage in transitu on the master. The defendants also wrote a letter from Liverpool, on the 18 th of July, to Birnie, in consequence of the receipt of which, Bir- nie, on the 20tb of July, wrote a letter to the captain, apprising him of 192 ROSS ON COMMEEOIALL ^W. the failure of Benbow, and appointing Grindley, or Mr. Lewtas of Grara- tang, near Wyrewater, to take charge of the cargo. The Monarch arrived at Wyrewater between seven and eight o'clock on Saturday evening, the 8th of August, 1840. As she was entering the harbour, T. Benbow saw her, and having hailed the captain and „_„_ ascertained her name, took a boat *to go on board. The vessel L J let go her anchor, and he got on board about eight o'clock, p. m., as the crew were furling the sails. The Monarch was then at the usual anchoring and discharging ground, opposite to the Custom-house, and then came to anchor with a single anchor, at the spot where her cargo was subsequently discharged; but in such a tide-way as there is at Wyre- water, it is necessary that the vessel should be moored with a second anchor, in order to discharge in safety, and the second anchor was not in fact got out until four o'clock next morning, the 9th of August, until which time the pilot remained on board in charge of the vessel. Thomas Benbow so went on board the Monarch for the purpose of taking posses- sion of the cargo, and told the captain that the ship was consigned to him. by the charter-party, and that he had come to take possession of the cargo. He told the captain that he, Benbow, had got the bill of lading; but he did not produce it. The captain invited Thomas Benbow into the cabin. The bulkheads of the cabin had been removed, as is usual in timber vessels, and the ends of the timber, part of the cargo, pro- jeeted into the cabin, and Thomas Benbow saw and touched them. When Thomas Benbow first stated that he came to take possession, the captain made no reply; but he subsequently, at the interview, told Thomas Benbow that he would deliver him "the cargo when he was satis- fied about the freight ; and he did not, at this interview, consent to de- liver immediate possession, or to waive his lien on the cargo for the freight. Thomas Benbow offered to advance the captain any money he might want : the captain said he would require money for various pur- poses, and that he expected a letter from his owner; and he then accom- panied Thomas Benbow ashore. At this time the captain received his owner's letter of the 9th of July. T. Benbow, at the same time, ad- vanced him £40 on account of freight, to be applied by the captain for the disbursements of the ship. At this time T. Benbow had not informed the captain, nor had the captain any knowledge of the bankruptcy of K. Benbow ; and this payment being only a partial satisfaction on ac- count of the freight, did not alter the captain's intention to withhold his consent to deliver the cargo until he was satisfied for the whole of the freight. r*2831 *GTindley, the defendant's clerk, on the same 8th of August, L -I got on board the Monarch, about half-an-hour after the captain had gone on shore with T. Benbow. He there told the mate that the consignees had failed, and that he had come to prevent the cargo falling into their hands. He then delivered to the mate the notice, stating that it was intended for the stoppage in transitu of the cargo. Grindley then went on shore, and delivered to the captain the letter of the ship- owner of the 20tb of July, whereupon the captain promised and con- sented to deliver the cargo to Grindley. The following day, the cap- CONTRACT OP SALE. 193 tain tendered to T. Benbow'the £40 that he had received from him ; but the latter declined to receive it. The cargo was afterwards entered at the Custom-house by Benbow, and the captain consented to deliver the cargo to him. This entry however, was not acted on, and it was subse- quently entered by Grindley, to whom the captain again promised to deliver it. Part of the timber was afterwards put over the ship's side, and delivered to Grindley; Benbow who was present, making claim to and demanding possession of it. The rest of the cargo was subse- quently delivered to G-rindley. The Monarch never moved from the place whore she first came to single anchor, and where Benbow first got on board,^ntil after the delivery of the cargo was completed. It has already been stated, that the defendants were agents for Symes ; but the extent of their authority as agents was disputed. Part of the evidence tendered, to show such a general authority from Symes as would warrant the defendants in stopping this cargo in transitu, con- sisted of letters written by Symes on the 27th of May, the 28th of May, and the 12th of June, 1840, to Mr. Chaffers, the manager of the Koyal Bank of Liverpool, which letters had been received, communi- cated to the defendants, and had been assented to by them, before they interfered to stop in transitu, as stated in the present case. In these three letters, which inclosed bills drawn by Symes on the various par- ties, and which he directed Chaffers to forward for acceptance, he stated that if any irregularity or informality should occur respecting them, the defendants would assist in getting them in order. There was also a let- ter of the 1st of July, 1840, written by Symes to Chaffers, in which he inclosed *a bill drawn by him on the bankrupt, Eichard Ben- rtfnoA-, bow, for the amount of the cargo in question, and requested L J Chaffers to get it accepted. The admissibility of all these letters was ob- jected to. If these letters, or any of them are admissible, and are any evidence to show such general authority, they, together with the other evidence given, suffice to prove such a general authority ; and it must be assumed as a fact in the case, that the defendants had authority from Symes to stop this cargo in transitu, before they took any steps for that purpose. If these letters are not any evidence to prove such authority, then it must be assumed that the defendants had no authority from Symes to stop this cargo in transitu, when they interfered for that pur- pose, unless such authority was conveyed by the letter next hereinafter mentioned. On the 24th of July, 1840, Symes wrote a letter to the defendants, in which he assumes that they have taken possession of the cargo, and . sold it on his account. This letter was posted on the 24th of July, 1840, and received by the defendants in Liverpool on the 15th of Au- gust, 1840. If this letter could give the defendants authority from Symes to stop this cargo in transitu, at the time they interfered for that purpose, it must be taken that they then had such authority. If this effect cannot be legally attributed to this letter, Symes by it ratified and confirmed all that was done by the defendants to stop this cargo in tran- situ, and take possession of it. If the Court shouH be of opinion that the plaintiffs are entitled to 194 ROB« ON COMMERCIAL LAW. recover, the verdict is to be entered for them, damages £460; but if the Court should be of opinion in favour of the defendants, then the verdict found for the plaintiffs is to be set aside, and a verdict entered' for the defendants. The case was argued at the sittings after last Michaelmas Term, (Nov. 27,) by Crornptoh, for the Plaintiffs. — Firs't, the notice given by the defend- ants to Birnie, the ship-owner, by the letter of the 18th of July, did not amount to a stoppage in transitu, . not being directed to the party who had possession of the goods, and coiild act upon it. Could a notice given to an owner, residing in Canada or the East Indies, operate to r*98'iT '**°P *^ transitu *goods on their way to England? To have that L J effect, it ought to be given to the captain, or at all evehts to the owner within such reasonable time and distance that he may communi- cate with the captain. [Parke, B. — Suppose it were a case of carriage by land ; would a notice to Pickford's in London be sufficient, or must it be given to the carrier on the road ?J A notice to them might be suf- ficient, if given in time for them to write and stop the goods. The test is, whether the party receiving the notice would be liable in trover aa for a conversion by non-delivery of the goods pursuant to the notice. [Parke, B. — Then, in the case of a ship at sea, there must always be a sort of race, and the vendor must take the chance of the consignee's first reaching the port of discharge.] The notice ought surely to be given to the person who can act upon it at the time : otherwise parties may have resumed the possession, and acted as owners of the goods, and their rights may afterwards be divested by a communication coming from the owner abroad, of a notice of stoppage given to him. The rule of law used to be, that a stoppage in transitu could be effected only by the Corporal touch of the goods, but that Undoubtedly is now otherwise: iiitt V. Cowley, 7 Taunt. 169. But in that case trover would have lain against the carrier for not delivering the goods accordingly ; but not feo here unless laches were shown, or it appeared that the ship-owner could have acted on the notice in time. If the defendants had gone to him at Montrose, and there demanded the goods, his refusa;l to deliver them would' clearly not have amounted to a conversion. , Secondly, the goods came to the possession of the assignees on the 8th August, before any act of stoppage in transitu. On that day their agent went on board, declaring his intention to take possession, and had actual corporal touch of the goods ; and the captaih agreed to hold the ■ goods for them, and attorned to their title, for he promised to deliver them on payment of certain freight,. which was afterwards paid according- ly. He 'became thenceforward the agent of the plaintiffs, to hold the goods for them. In Crawshay v. Eades, 1 B. & Cr. 181 ; 2 D. & R. 228, which may be cited for the defendants, the carrier had not deliVertd the property to the consignee, nor agreed to hold it for him, but expressly r*2861 ""^^^i"^"^ i' ^y ^*y of *lien for his freight. There was in that L -J case nothing to amount to an attornment by the bailee in posses- sion of the goods. In Hawes v. Watson, 2 B. & Cr.'540; 4 D. & B- 22, it was held, that' an attornment by a warehouseman to the title of the CONTEAOT OF SALE. 195 vendee, subject to the payment of warehouse rent and charges, put an end to the right of stoppage. So in Gosling v. Birnie, 7 Bing. 339 : 5 M. & P. 160, where a wharfinger had agreed to hold timber on his wharf for the plaintiff, a vendee, he was held liable in trover for the value, notwithstanding his claim for wharfage. These cases show that the con- tinuance of the carrier's lien does not prevent the determination of the right of stoppage in transitu. Allan v. Grripper, 2 C. & J. 218, and Kowe V. Piokford, 8 Taunt. 83, are authorities to the same effect. If it were otherwise, the right of stoppage never would be gone in cases where the goods are held by warehousemen or wharfingers as agents for the ' vendee, for in all such cases there is an existing lien. Then as to the mode of taking possession, Ellis v. Hunt, 3 T. R. 464, is an authority to show that it was suflScient in this case. There possession taken by the consignee's putting his mark upon the goods in the carrier's ware- house was held Bu£Scient. The present case is stronger ; here the plain- tiffs, by their agent, had actual touch of the goods, and had the carrier's assent to hold for them. More could not have been done ; for the goods were to be delivered afloat. In Jackson v. Nichol, 6 Bing, N. C. 508 ; 7 Scott, 577, where the right of stoppage was held to be undetermined, there was a mere demand by the vendee, without any delivery ; and the holder had refused to deliver the goods. Here they had come to their ultimate destination, and the captain had. agreed to hold them for the benefit of the plaintiffs : and all that was afterwards done by Grindley on behalf of the vendors, could not affect the previous transaction of the 8th of August. But, thirdly, the defendants had no sufficient authority to stop the goods in transitu. The letters prove no jprior authority, and a subse- quent ratification is not sufficient for such a purpose. [The learned counsel read the letters stated in the case,] The letter from Symes of the 24th July, although written before the stoppage, was not communi- cated to the defendants until after that event, and therefore cannot be ♦considered as having authorized them to stop the cargo. [An- |-,|,nQ7-i DERSON, B. — Can you say the letters are not sosweem'tfence towards L J proving a general authority ? and if they are, the fact is found that the defendants had such authority.] It is submitted that they are not evi- dence at all. The other letters refer to other transactions, and have no relevancy to this issue. They amount at most to evidence of a special authority to interfere with respect to the bills mentioned in them. And with respect to that of the 24th of July, it can only be regarded as a subsequent ratification of the defendant's act, which is not sufficient. In Nicholls v. Le Feuvre, 2 Bing. N. C. 81, the Court appeared to doubt whether a stoppage in transitu, made by an unauthorized party, could afterward be ratified. See also Siffkin v. Wray, 6 East, 371. A sub- sequent ratification cannot be equivalent to a previous authority, where the rights or estates of third parties are to be affected thereby. In this case, if it were sufficient, the captain would be made a wrongdoer by relation, and the assignees would be left in an uncertainty whether they had a right to the possession or not. On the same principle, a recogni^ tion of a notice to quit, given by an unauthorized person after it has be- 196 EOSS ON COMMERCIAL LAW. gun to run, is ineffectual. Right v. Cuthell, 5 East, 491 ; Doe d. Mann V. Walters, 10 B. & Or. 626 ; 5 Man. & R. 357. The law is laid down in aceordanoe with this distinction in Stor^ on Agency, 208, 209; and Paley's Principal and Agent, 345, 346, (3rd edit.) Oresswell, for the Defendants. — In the first place, the letters are amply suflScient to show an authority given to the defendants to exercise the right of stoppage in transitu on behalf of the vendors. They are ob- viously the same for this purpose as if they had been addressed to the defendants themselves, having been communicated to and assented to by them. They are not merely admissible, but the best evidence for the purpose ; and. they clearly tend to show a general authority to act on behalf of the vendors, in all cases with relation to unpaid bills which should render such interference necessary. And the finding in the case is r*9SSn ^^P''*'®^; ^^^^ if the letters are admissible, and are anj/ evidence to L -■ show such general authority, *they suffice, with the other evidence in the case, to prove it. But further, the letter of the 24th July, which, was written before the stoppage, is no mere act of ratification ; it pro- fesses to confer an authority, and takes effect from its date.- It is in this respect like a power of attorney, which would become operative from the period of its execution and delivery, though it might not come into the agent's hands until after he had done the act authorized by it. But even if this be not so, it is good as a ratification of the acts of the defend- ants. This case differs essentially from those which have been cited,' of unauthorized notices to quit afterwards ratified. There a party is called upon to give up a right, or his position is sought to be altered, by force of a document which, at the time, gives him no countervailing pro- tection, for the tenant would remain liable to the rent, notwithstanding the receipt of the unauthorized notice. The same doctrine may perhaps apply as between the principal and the carrier, with relation to the stop- page of goods in transitu; and if there were an action by the vendees against the carrier for delivering the goods to the buyers notwithstand- ing this notice, it might not be sufficient ; but the case is different as between these parties. In Bailey v. Culverwell, 8 B. & Or. 448 ; 2 Man. & R. 564, the general doctrine, that the ratification of an aotdone for the benefit of the party is equivalent to a previous authority, was dis- tinctly recognized, and has never been disputed, excepting the instances falling within the principle stated in Right v. Cuthell. The same law is broadly laid down in Whitehead v. Taylor, 10 Ad. & Ell. 210 ; 2 P. &D. 367. Secondly, there was in fact a sufficient stoppage in transitu. Accord- ing to Litt v. Cowley, the letter to Birnie of the 18th of July, if not^er se, yet coupled with his consequent letter to the captain, was a sufficient exercise of the right of stoppage. In Litt v. Cowley, the goods were delivered to Pickford and Co. at Manchester; before they arrived at London, notice of stoppage was served on Pickford and Co. in Manches- ter; and that was held sufficient. It is said the notice in this case was insufficient, because it did not come to the hands of the captain in time, and he did not act upon it : the same fact existed, and, the same argu- CONTRACT OP SALE. 197 ment might Lave been used, in the case of Litt v. *Cowley. rj,noQ-| Birnie, who is the carrier, assents to stop the goods, and comma- L J nicates that intention to the master, who then has the goods in his pos- session, as his servant. That is a sufficient act of stoppage. Thirdly, there was no such previous delivery of the cargo as could defeat the right of stoppage in transitu on the 8th August. The voyage was not ended at the time when the agent of the assignees came on board, for the ship was not so moored as to be ready for the delivery of the cargo. And it clearly never was in the contemplation of the parties that the ship should be the warehouse of the purchaser for the deposit of the goods. There is no agreement on the part of the captain to give up the goods on hoard the ship, but only that the assignees should receive them afloat, at the usual place of mooring. The question then comes to this, was there an intention to deliver the cargo, or a delivery in fact ? In Crawshay v. Eades, the delivery on the wharf would prima facie have appeared to be a delivery to the purchaser ; but the Court held that it could not be so construed, because there the party could not have intended to part with his lien. So, the purchaser's act of marking the goods does not itself import a delivery. [Parke, B. — No ; the question is quo animo the act is done. My notion has always been, that the question is whether the consignee has taken possession, not whether the captain has intended to deliver it.] Suppose he refuses to deliver, can the consignee take possession in invitum ? [Parke, B. — Yes, subject to bis lien. In Ellis v. Hunt and Row© v. Pickford, there was no intention on the part of the carrier to deliver, so as to divest his lien.] But there was no intention to withhold the possession — no adverse demand of lien. Those case^ proceeded on the ground of the place being treated as the warehouse of the purchaser, and the contemplated end of the transitus. But further, here there was no actual delivery or takitlg possession of the goods. There was no assent to their immediate delivery, nor is it said that the agent touched them with intent thereby to take possession; his doing so might be merely accidental. There was no such taking possession as would have imposed upon the assignees the duty of taking the cargo out of the vessel. The oases as to an attornment are of quite a different *character, r,nQAi and amount to this only, that, as between the warehouseman L -* and a second purchaser, the former is estopped by the entry and transfer in his books ; such are Hawes v. Watson and Gosling v. Birnie : but in such oases the rights of the original vendor remain unaffected. A symholical taking of possession cannot be made operative and equivalent to actual possession, without the consent of both parties. Suppose the captain had received authority to stop in transitu, could this transaction have prevented it ? It clearly amounts to no more than evidence of possession, which is rebutted by the other circumstance of the case. Dixon V. Yates, 5 B. & Adol. 313, shows that the whole question, whether there has been a delivery or not, depends on the intention of the parties. Here the captain shows his intention, by refusing to deli- ver till the freight is paid ; he merely promises to deliver in future^ on 198 EOSS ON OaMMBKOIAL LAW. being satisfied as to the freight, and enters into no engagement to hold for the vendees in the meantime. Oromptori, in reply.— First, no sufficient authority in the defendants is found for the Court to act upon it. [Paeke, B. — Surely eVery evidence of a special is evidence of a general authority. Aldeeson, B. — The letters are not admissible, because not relevant, otherwise than as showing a general authority; but surely they are some evidence of that.] The letter of the 24th July could give no authority, except from the time when it was received. [Aldeeson, B. — That question is material only in case the other letters are inadmissible 3 and the Court have little doubt that they are admissible.] Secondly, the letter to Birnie, even coupled with his letter thereupon to the captain, was no sufficient stoppage in transitu. Birnie never communicated his assent to the defendants. No doubt his letter to the captain would haye been a sufficient authority to Jiim to stop, if he had received it before the 8th of August. Those letters would not.have been sufficient evidence to make Birnie liable in trover, if the captain had delivered "the goods to the assignees. In Litt v. Cowky, the fact established that the carriers had the immediate power of doing the act necessary to the stoppage. r^29n Thirdly, there was a sufficient taking of possession by the ■- J *assignees. It is argued that there was no intention on the paTt of the captain to deliver; but that was immaterial. What it is necessary to prove, is either that actual possession has been taken, or that the. master has become the agent of the vendee, to hold for him ; and in this case there was evidence of such agency. It is strictly a case of estoppel, by attornment 0/ the master to the title of the assignees. Our. adv. vuli. The judgment of the Court was now delivered by Paeke, B — The question for our decision in this case is, Whether the unpaid vendor of a cargo of timber kgally stopped it in transitu before the transitus was at the end ? The material facts may be stated in a few words. — Benbow, a mer- chant in Liverpool, ordered a cargo of timber of Symes, a merchant at Quebec, which was despatched from thence on board a ship belonging to Birnie, of Montrose, oiiartered by Benbow. The timber was deliverable at the port of Fleetwood, in Lancashire. The price was not paid ; and, before the arrival of the vessel in England, Benbow became bankrupt; thereupon the defendants, who were the correspondents of the vendor, gave, on the 18lh of July, to Birnie, the owner, at Montrose, a notice of stoppage in transitu, on behalf of the vendor ; and Birnie, on the 20th, wrote to the captain, directing him to hold the cargo at the disposal of the defendants' agents, and seiit the letter to await the arrival of the vessel at Fleetwood. On the 8th of August, the captain arrived there with the vessel and cargo ; but, on that evening, and before the receipt of the letter by the captain from his employer, an agent of the assignees, of Benbow went on board to take possession of the cargo, and had a communication with the captain on the subject, and did certain acts on board, which are stated in the special case. The captain went on OONTEAOT OF BALE. 199 shore with the agent of the assignees, and soon after, on the same evening, the defendants' agent went on board the vessel, and delivered a notice of stoppage in transitu to the mate, who was left in charge of the cargo. Afterwards, the defendants got the *actaal possession of r^oooi the cargo, and the plaintiffs, the assignees of Benbow, bring L J this action to recover it. Upon these facts, the first question is, whether the notice given by the defendants to Birnie, on the 18th July, was a sufficient stoppage m transitu ; for if it was, the alleged taking possession of the cargo by the agent of the assignees of the purchaser was too late. We think it was not. It being admitted by the plaintiffs that a notice to the carrier, on the part of the unpaid vendor, is generally a sufficient stoppage in transitu, two objections were taken to this notice ; the one, that the defendants, the correspondents of the vendor, were not aoithorized by him to give it, (and the same objection applies to every other act of the defendants which is put forward as a stoppage in transitu ;) and the other objection is, that the notice to the ship-owner, who had not himself personally the custody of the goods, was, under the circumstances of this case, insufficient. Whether the defendants had authority to make a stoppage in transitu for the vendor, turns upon this point. Certain letters were offered in evidence, written and sent by Symes at a prior time from Queb«c to a Mr. Chaffers, the manager of a bank at Liverpool, all referring to the defendants as persons who were to act for Symes in case any difficulty should arise, with respect to different bills of exchange mentioned in those letters, or to any others, (amongst which latter was a bill drawn by Symes in favour of Chaffers, on account of the very cargo of timber in question.) All these letters had been communicated to and assented to by the defendants, before they interfered ; and the special case, in which the facts were found by an arbitrator, states, that if those letters, or any of them, were admissible to show such a general authority as would warrant a stoppage in transitu, they, together with other evidence in the cause, were, in the judgment of the arbitrator, sufficient to prove it; and it must be assumed as a fact, that there was such an authority. We have no difficulty in saying, that the appointment of the defendants by Symes to act for him, with respect to other dishonoured bills, and particularly the bill for the cargo in question, is some evidence of a general authority to act for him, or at least of an authority to take such steps as they ^should think fit for the purpose of securing those p,|sonq-i bills ; and, by implication, an authority to stop the cargo, for L J the price of which one of the bills was drawn. And if it be any evidence, the mode of stating the s]pecial case precludes any question (if there were any) as to its weight. * There is no doubt, therefore, of the authority of the defendants to make a stoppage in transitu. The next question is, whether the notice to Birnie, the ship-owner, living at Montrose, given on the 20th July, is such a stoppage of the Cargo, then being on the high seas on its passage to Fleetwood. Wo 200 BOSS ON COMMERCIAL LAW. think it was not : but to make a notice effective as a stoppage in transitu, it must be given to the person who has the immediate custody of the goods ; or if given to the principal, whose servant has the custody, it must be given, as it was in the case of Litt v. Cowley, 7 Taunt. 169, at such a time, and under such circumstances, that the principal, by the exercise of reasopable diligence, may communicate it to his servant in time to prevent the delivery to the consignee ; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servants to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is, to use reasonable diligence to prevent the delivery; and in the present case such diligence was used. The case, therefore, is resolved into this question, Whether the cir- cumstances which occurred on the evening of the 8th August, when- the agent of the assignees went on board, amounted to a taking possession, so as to determine the right to stop in transitu? The law is clearly settled, that the unpaid vendor has a right to re-take the goods before they have arrived at the destination originally contemp- lated by the purchaser, unless in the meantime they have come to the actual or constructive possession of the vendee. If the vendee take them out of the possession of the carrier into his own before their arri- val, with or without the consent of the carrier, there seems to be no r*OQ'n ^°^^^ ^^^^ ^^ *transit would be at an end : though, in the case L -1 of the absence of the carrier's consent, it may be a wrong to him, for which he would have a right of action. This is a case of actual possfession, which certainly did not occur in the present instance. A case of constructive possession is, where the carrier enters expressly, or by implication, into a new agreement, distinct from the original contract for carriage, to hold the goods for the consignee as his agent, not for the purpose* of expediting them to the place of original destination, pursu- ant to that contract, but in a new character, for the purpose of custody on his account, and subject to some new or further order to be given to him. It appears to us to be very doubtful, whether an act of marking or taking samples, or the like, without any removal frota the possession of the carrier, so as though done with the intention to take possession, would amount to a constructive possession, unless accompanied with such cirounistances as to denote that the carrier was intended to keep, and assented to keep, the goods in the nature of an agent for custody. In the case of Foster v. Frampton, 6 B. & C. 107; 9 D. & E. 108, it is clear that there were such circumstances ; whether in that of Ellis v. Hunt, 7 T. E. 46, is" doubtful; but it is unnecessary to" determine this point, as there is no finding in this case even of any act done to the tim- .ber with intent to take possession. It is said, indeed, that the agent of the assignees touched the timber, but whether by accident or design is not stated. There being then no such act of ownership, it seems to us that unless, by contract with the captain, express or implied, the relation CONTRACT OP SALE. 201 in which he stood before, as a mere instrument of conveyance to an appointed place of destination, was altered, and he became the agent of the consignee for a new purpose, there was no constructive possession on the part of the vendee. There is no proof of any such contract. A promise by the captain to the agent of the assignees is stated, but it is no more than a promise, without a new consideration, to fulfil the original contract, and deliver in due course to the consignee, on payment; of freight, which leaves the captain in the same situation as before; after the agreement he remained a more agent for expediting the cargo to its original destination. *We therefore think that the transaction on the 8th August r*9Qc-| did not amount to a constructive possession by the vendees, and L J therefore the defendants are entitled to our judgment. Judgment for the defendants. WHERE AN ARTICLE IS ORDERED TO BE MADE, NO PROPERTY IN THE ARTICLE PASSES TO THE ORDERER UNTIL IT IS COMPLETED AND HAS BEEN. APPROVED OP BT HIM. ATKINSON V. BELL. 8 B. & C. 211. Eng. Com. Law Reps., vol. 15.— E. Easter Term, 1828. Assumpsit for goods sold and delivered, goods bargained and sold, work and labour, and materials found and provided. At the trial before Hullock, B., at the Summer Assizes for Lancaster, 1827, it appeared that the defendants were linen and thread manufacturers at Whitehaven, in Cumberland. The bankrupt Sleddon, before his bankruptcy, was a machine maker, residing at Preston in Lancashire. One Kay, of Pres- ton, obtained a patent for a new mode of spinning flax, and the defend- ants, being desirous of trying the effect of it, on the 12th November, 1825, by letter ordered him to procure to be made for them as soon as possible a preparing frame and two spinning frames, in the manner he most approved of. In January, 1826, Kay ordered two spinning frames, and a roving frame to be made by Sleddon for the defendants, and informed them that he had so done. These machines were formed on Kay's first plan, ;jnd completed at the end of March, and after they had been so completed they lay in Sleddon's premises a month, while two other machines of these defendants, intended to be used in the same mills, were altered by Sleddon, under Kay's superintendence; and when those had been completed to his mind, he ordered the machines in ques- tion to be altered in the same manner. They were altered accordingly, packed in boxes by Kay's directions, and remained on Sleddon's premi- ses. On the 23d of June, 1826, Sleddon wrote to the defendants, *and informed them that the two frames had been ready for the r^t-nqo-i last three weeks, and begged to know by what conveyance they L J were to be sent. On the 8th of August a commission of bankrupt issued against Sleddon, under which he was duly declared a bankrupt. The 202 EOSS ON OOMMBECIAL iAW. assignees afterwards required the defendants to take the frames, but they refused to do so. It was objected on the part of the defendants, that the action was not maintainable for goods bargained and sold, because the property in the frames had never vested in the defendants. The learned Judge was of opinion that the action was not maintainable, and he directed a nonsuit to be entered, with liberty to the plaintiffs to move to enter a verdict for the price of the machines. A rule nisi having been obtained for that purpose. Brougham and Parke now showed cause. The plaintiff is not enti- tled to recover ya. the count for goods bargained and sold, because that form of action is not maintainable, unless there be a contract for specific goods, and unless everything has been done so as to vest the property in those goods in the purchaser, and entitle him to maintain trover upon tendering the price. If the contract can be satisfied by selling any goods of a certain description, this action will not lie; but the proper remedy is by a special action of assumpsit for not accepting. As soon as specific goods have been selected by the vendor, and accepted by the vendee, and everything done to vest the property, this action will lie, but not until then. Now here the defendants did not agree to accept any particular goods. They merely ordered machines to be made for them in a particular mode ; and the only remedy for the breach of such a contract is. a special action on the case for not accepting. That the property in these machines did not pass to the defendants is clear; for in case of a destruction by fire, the loss could not have fallen on them, but it must have fallen on the bankrupt. If the bankrupt had delivered them to another person, the defendants could not have maintained trover for them. They could only have brought an action against the bankrupt for breach of contract, in not making machines according to order. 'They remained the property of the maker, who might have performed r*QQ7n *^^^ contract by delivering any other similar machines. Sup- L J pose an execution to have issued against the defendants, could these machines have been seized by the sheriff as their goods ? They continued the goods of the bankrupt, although he might be liable to an action for breach of the contract. There was no proof of any selection of these goods by the defendants. Mucklow v. Mangles, 1 Taunt. 318, is an authority to show that no property in a chattel bargained for vests in the person who orders it until it be finished and delivered, even though the price be paid. And according to the opinion expressed by Littledale, J., in Simmons v. Swift, 5 B. & C. 857, goods bargained and sold will not lie merely because the property passes. The mere bargain will not suffice unless the price be ascertained. Secondly, the plaintiffs cannot recover on the count for work and labour; for that count is applicable to those cases only in which the work is done on account of thg defendants. Here it was done upon the plaintiff's own account, in working up his own materials into machines, which, when completed and accepted, and not until then, could be the property of the defendants. The case of Towers v. Osborne, 1 Str. 506, is of very doubtful authority, and was said to be an extreme case by Lord Tenterden, C. J., in Qarbutt v. Watson, 5 B. & A. 613. CONTRACT OF SALE. 203 Cross, Seijt., and Tomlinson contra. — There was a specific appropria- tion of these machines to the defendants after they were finished. Kay was the agent of the defendants; and their letter on the 12th of November, 1825, gave him the most ample powers to act as he thought best for their interest, and therefore he had sufficient authority to appro- priate the machines to them if he thought proper. After the machines were completed they were, by Kay's order, altered according to the latest improvement, and to correspond with other machines of these defendants, altered by Sleddon under Kay's superintendence, and intended to be used in the same mill. That was an acceptance of these specific machines by the defendants through Kay. It therefore operated as a purchase of them. This case falls within the principle of the decision in Woods V. Kussell, 5 B. & A. 942. There it was held, that an unfinished chattel may be appropriated, and that the appropriation vests the i-;|,9qDn property *in the chattel in the person by whose order it has been L J made. It is not true that the bankrupt could by his own act substitute other machines, for he could not send out any without the consent of Kay the patentee. He could not sell them without the permission of Kay. They could not have been seized under an execution against the goods of Sleddon, because the Sheriff could not make any title to them without Kay's consent. In Kohde v. Thwaites, 6 B. & C. 388, an appropriation of goods by the seller, assented to by the buyer, was held to vest the property in the latter. Here Sleddon, by Kay's permission, appropriated the goods to the defendants, and they, by their agent Kay, assented to that appropriation. Secondly, the plaintiffs are entitled to recover on the count for work and labour. For here the machines, but for the orders given by the defendants, would never have been in existence. The property in the thing ordered vests, when it is completed, by relation in the orderer, and the person who made jt may then sue for work and labour. In Towers v. Osborne, 1 Str. 606, the action appears to have been for the value or price of a bespoken chariot, and not a mere action for damages for not accepting ; "and in Garbutt v. Watson, 5 B. & A. 613, the form of the remedy in Towers v. Osborne was not questioned. They also cited Dunmow v. Taylor, Peak, JN. P. 41. Bayley, J — I think the rule for entering a verdict for the plaintiff ought to be discharged. If the declaration had contained a count for not accepting the machines, the plaintiffs might have been entitled to recover ; and I think now that, upon payment of costs, they should be allowed to set aside the nonsuit, and add other counts to the declaration, and have a new trial. But I cannot say that the property passed to the defendants, so as to enable the plaintiffs to recover on the counts for goods bargained and sold, or for work and labour. It is said that there was an appropriation of these specific machines by the maker, and that the property thereby vested in the defendants. I think it did not pass. Where goods are ordered to be made, while they are in progress the materials belong to the maker. The property does not vest in the party who gives the order until the thing ord&ed is completed. And rmooQ-i "•although while the goods are in progress the maker mayintend ■- -I 20t KOSS ON COMMEECIAL LAW. them for the person ordering, still he may afterwards deliver them to another, and thereby -vest the property in that other. Although the maker may theVeby render himself liable to an action for so doing, still a good title is given to the party to whom they are delivered. It is true that Kay saw these things while they were in progress, and knew that the bankrupt intended them for the defendants ; yet they might after- wards have been delivered to a third person. This case is not affected by the argument that these are patent articles, because they might have been delivered to' a third person with Kay's assent. The case of Woods V. Russell, 5 B. & A. 942, is distinguishable. The foundation of that decision was, that as by the contract given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price the ship was irrevocably appropriated to the person paying the money. That was a purchase of the specific articles of which the ship was made. Besides, there the ship-builder had signed the certificate to enable the purchaser to have the ship registered in his name j the legal effect of which was held to be to vest the general pro- perty in the purchaser. If in this case an execution had issued against Sleddon, the Sheriff mighl^ have seized the machines. They were Sleddon's goods, although they were intended for the defendants, and he had written to tell them so. If they had expressed their assent, then this case would have been within Rohde v. Thwaites, 6 B. & C. 388, and there would have been a complete appropriation- vesting the property in the defendants. But there was not any such assent to the appropria- tion made by the bankrupt, and therefore no action for goods bargained and sold was maintainable. Then as to the counts for work and labour, if you employ a man to build a house on your land, or to make a chattel with your materials, the party who does the work has no power to appro- priate the produce of his labour and yohr materials to any other person. Having bestowed his labour at your request on your materials, he may maintain an action against you for work and labour. But if you employ another to work up his own materials in making a chattel, then he may r*R00n ^PP'"opJ''**s ^^^ produce of that labour and materials to any L -I *olher person. No right to maintain any action vests in him during the progress of the work; but when the chattel has assumed the character bargained for, and the employer accepted it, the party employed may maintain an action for goods sold and delivered ; or .'if the employer . refuses to accept, a special action on the case for such refusal. Bpt he cannot maintain an action for work and labour, because his labour was bestowed on his own materials, and for himself, and not for the person who employed him. I think that in this case the plaintiff cannot recover on the count for work and labour. HoiiROYD, J. — I think that on the facte given in evidence a verdict might have been sustained on a count for not accepting the machines. I have entertained great doubt during the argument, whether a verdict might not be sustained on the count for work and labour and materials found. I think it will not lie for goods bargained and sold, because there was no specific appropriation of the machines assented to by the purchaser, and the property in the goods, therefore, remained in the CONTRACT OP SALE. 205 maker. Then as to work and labour, the work was done, and the labour bestowed on the materials of the maker in manufacturing an article which never became the property of the defendants. I am of opinion, therefore, that the work was done for the bankrupt, and not for the defendants. LiTTLEDALE, J. — I am of the same opinion. Goods/bargained and sold will not lie unless there be a sale. There could not be any sale in this case, unless there was an assent by the defendants to take the articles. Here there was no assent. The property must be changed, to make the action maintainable. If the property had been obanged, the maker could not have delivered these machines to any one but the defen- dants. I think, however, he might have delivered them to another, notwithstanding anything that passed, and that the defendants could not have maintained trover against the party to whom they were delivered. In the case of an execution or a bankruptcy, these machines must have been treated as the goods of the maker. As to the count for work and labour and materials, the labour was bestowed, and the materials were found, for the *purpose of ultimately effecting a sale, and if that r»qA-n purpose was never completed, the contract was not executed, and L J then work and labour will not lie. The work and labour and the materials were for the benefit of the machine-maker, and not for the defendants. Eule absolute, on payment of costs. WHEEE AN ARTICLE IS ORDERED TO BE MADE, THE PAYMENT OP THE PRICE IN ADVANCE TVILL NOT "VEST THE PROPERTY OF THE ARTICLE IN THE ORDERER. MUCKLOW V. MANGLES. June 18, 1808.— E. 1 Taunt. 318. Trover by the assignees of a bankrupt for a barge and other effects. Upon the trial before Mansfield, C. J., at Westminster, at the sittings in this term, it was proved that Royland, who was a barge-builder, had undertaken to build the barge in question for Pocock. Before the work was begun, Pocock advanced -o Royland some money on account, and as it proceeded, he paid him more, to the amount of iSlQO in all, being the whole value of the barge. When it was nearly finished, Pocock's name was painted on the^stem. Two days after the completion of the work, and before-a commission of bankrupt had issued, the defendant, who was an officer of the Sheriff of Middlesex, under an execution against Roy- land, took this barge, which had not then been delivered to Pocock, but gave it up to him under an indemnity. The jury found a verdict for the plaintiff. Best, Serjt., now moved that the sum of £190, the value of the barge, might be deducted from the amount of the verdict, inasmuch as the pro- perty had absolutely vested in Pocock, who had paid for the barge, and could, he said, have recovered it in trover against Royland ; and the assignees could not be in a *better condition than Royland him- r^onoi self. This was not such a permissive possession in the bankrupt, ^ -■ February, 1855. — 14 206 ROSS ON OOMMEROIAIi LAW. as is described in the Stat. 21 Jac. I. o. 19, for the bankrupt had not had time to deliver it after it was finished. Ex parte Flinn and Field, 1 Atk. 185. Flinn and Field bought of Matthews, and paid for two-thirds of five hundred barrels of tar, the whole to be sold by them for account as follows — two-thirds their account, and one-third Matthews's account; Matthews to bear charges of carterage and porterage in sending off. Matthews becoming a bankrupt, the Chancellor on petition held, that Flinn and Field were entitled to two-thirds of the tar, for that this was only a temporary custody, till the petitioners could conveniently ship it for Ireland, and it could not with propriety be said that the tar was in the " possession, order, and disposition" of the bankrupt. Mansfield, C. J. — The only effect of the payment is, that the bank- rupt was under a contract to finish the barge ; that is quite a different thing from a contract of sale, and until the barge was finished we cannot say that it was so far Poeock's property, that he could have taken it away. It was not finished at the time when Royland committed the act of bank- ruptcy : it was finished only two days before the execution. In the case cited it was necessarily held that the tar was not in the possession of the bankrupt ; otherwise, in every case of tenancy in common with a bank- rupt, the act of bankruptcy would vest the entire property of the chattel in his assignees. Heath, J. — This is the species of contract which in the civil law is described by the term Do ut facias. It comes within the cases which have been held to be executory contracts, and as such not within the statute of frauds, as contracts for the sale of goods. A tradesman often finishes goods which he is making in pursuance of an order given by one person, and sells them to another. If the first customer has other goods made for him within the stipulated time, he has no right to complain ; he could not bring trover against the purchaser for the goods so sold. The painting of the name on the stern in this case makes no difference. If the P3031 ^^^^^ ^^ *° *existence at the time of the order, the property of L -I it passes by the contract, but not so, where the subject is to be made. Lawrence, J.— I am of the same opinion. No property vests till the thing is finished and delivered. The Court refused the Rule. WHERE an article IS ORDERED TO BE MADE, AND BY THE TERMS OP THE CONTRACT INSTALMENTS OF THE PRICE ARE TO BE PAID ACCORD- ING TO THE PROGRESS OP THE WORK, THE PAYMENT OP THESE INSTAL- MENTS APPROPRIATES SPECIFIOALW THE ARTICLE TO THE ORDERER, AND VESTS IN HIM THE PROPERTY OP IT AITHOUEH NOT COMPLETED, SUBJECT TO THE EIGHT OP THE MAKER TO RETAIN THE UNFINISHED OONTHAOT OP SALE. 207 ARTICLE IN ORDEE TO COMPLETE IT AND EARN THE REMAINDER OP THE PRICE. I. — WOODS V. KUSSELL. June 26, 1822.— E. 5 B. & Al. 942. Eng. Com. Law Eeps., vol. Y. This case was tried before Bayley, J., at the Summer Assizes, 1820, and came on for argument in the course of Easter Term, upon a special case, which it is unnecessary to set out, as the facts are fully stated in the judgment delivered by the Court. The case was argued by Iiittledale, for the Plaintiffs. — The property in the ship, rudder, and cordage, continued in Paton at the time when he committed the act of bankruptcy, the ship not being then completed. The case of Mucklow v. Mangles, 1 Taunt. 318, is an authority expressly in point. There the bankrupt, a barge-builder, had undertaken to build a barge for, Pocock, and the latter had paid the whole value in advance, and his name was actually painted on the stern of the vessel after the completion of the work; but before delivery, and before any commission of bankrupt had issued against the barge-builder, the barge was seized in execution for a debt of the bankrupt. It was held, that no property in the barge passed to Pocock until its *completion and delivery, and conse- rjfO(\±-\ quently that the assignees were entitled to recover the value. L J Here the bankrupt was only under a contract to deliver the ship, and although the stipulated time for building had actually elapsed, yet the vessel was not completed and launched until after the act of bankruptcy. The certificate under 26 Geo. III. c. 60, s. 12, clearly is not to be given till the ship is completed, and until that time, therefore, no property passes to the vendee. Groves v. Buck, 3 M. & S. 178 ; Towers v. Os- borne, 1 Str. 506. But at all events, the case falls within the Statute of James, for the ship was in the hands of the bankrupt as the reputed owner. Hay v. Fairbairn, 2 B. & A. 193 ; Kobinson v. M'Donnell, 2 B. & A. 134. Holt, contra. — There are two questions in this case j first, Whether the property in the ship, rudder, and cordage, ever passed to the defendant ? and, secondly, assuming that it did. Whether it continued in the posses- sion of the bankrupt at the time of the act of bankruptcy, as the reputed owner, with the consent of the true owner, within the Statute of James ? Here the property passed to the defendant under the contract, for there was a delivery to him before the 30th June. The vessel was clearly complied when she was capable of being surveyed and measured. The officers of the customs had taken the usual bond from the master pre- viously to the bankruptcy ; the builder, too, on the 26tb June, had given the defendant the certificate required by the 26 Geo. III. c. 60, s. 20, and from that time he must be taken to have consented that the defend- ant should have the possession. Secondly, assuming the property to have passed to the defendapt, it did not continue, with his consent, in the possession of the bankrupt as reputed owner. That is a question of fact which ought to have been found; Muller v. Moss, 1 M. & S. 338; and Oliver v. Bartlett, 3 B. Moore, 597. Besides, the circumstance of 'lOS ROSS ON CO-MMERCIAL LAW. the vessel's having been registered in the name of the defendant, and of his having advertised her for freight, affords the strongest evidence that he, and not the bankrupt, was the reputed owner of the ship. Cur. adv. vult. „. . *Abbott, C. J., now delivered the judgment of the Court. L J This was an action of trover for a ship, rudder, and cordage, by the assignees of Alexander Paton, a bankrupt, and the facts were shortly as follows: Paton was a ship-builder, and in October, 1818, he entered into a written contract with the defendant to build and complete a ship for the defendant, and finish and launch her in April, 1819; and the defendant was to pay for the ship by four instalments of £750 each ; the first when the keel was laid, the second when they were at the light plank, and the third and fourth when the ship was launched. The pay- ments were to be made by bills at two, four, six, and eight months. The first and second instalments were duly paid. In March, 1819, the defendant appointed a master, who, from that time superintended the building. In May, 1819, the defendant advertised the ship for charter, and on the 16th of June chartered her, with Paton's privity, for a voy- age from Newcastle to Newfoundland. Before the 26th of June the ship was measured and surveyed, with Paton's privity, to the intent that the defendant might get her registered in his name. On the 19th June the master entered into the usual bond for delivering up the register j on the 25th Paton signed the usual certificate of her build, &e., and on the 26th the ship was registered in the defendant's name. On that day the defendant paid Paton the third instalmant. Paton's certificate de- scribed the ship as launched, but that was not the case, and Paton's people continued working upon her, and using his timber and materials till the 3d of July. One of the master's apprentices was employed on board by his directions from the early part of June, and on the 30th the master ordered him to sleep on board ; but on that same day Paton committed an act of bankruptcy, upon which a commission afterwards issued. On the 2d of July the defendant and a crew he had hired took possession of the ship, and his servants, by his direction, took from Paton's yard and warehouse a rudder and cordage, which Paton had bought for the ship. On the 4th of July the ship was launched. The fourth instalment was never paid. The ship was incomplete when the act of bankruptcy was committed, and the expense of launching her was borne by the defendant. Upon these facts, the questions proposed to r*3061 t'le.consideration *of the Court were, whether the plaintiffs were L -I entitled to recover the value of the ship, in which case the value, subject to a deduction, was to be taken at £3000 ? or, if not, whether they were entitled to recover the value of the rudder and cordage ? and, should the Court be of opinion that ihey were entitled to neither, a non- suit was to be entered ; and upon these points alone the case was argued before the Court. . It has occurred, however, to the Court, that a third question arises upon the facts, which neither party could have intended to exclude, which is this :— Whether, if the plaintiffs are not entitled to recover the whole value of the ship, they may not be entitled to recover io the extent of so much of the fourth instalment as, if the defendant CONTRACT OF SALE. 209 has the ship, he ought to pay. And, upon the first and second ques- tions, our opinion is in favour of the defendant ; upon the last, against him. This ship is built upon a special contract, and it is part of the terms of the contract, that given portions of the price shall be paid according to the progress of the work j part when the keel is laid, part when they are at the light plank. The payment of these instalments appear to us to appropriate specifically to the defendant the very ship so in progress, and to vest in the defendant a property in that ship, and that, as between him and the builder, he is entitled to insist upon the completion of that very ship, and that the builder is not entitled to re- quire him to accept any other. But this case does not depend merely upon the payment of the instalments ; so that we are not called upon to decide how far that payment vests the property in the defendant, because, here Paton signed the certificate to enable the defendant to have the ship registered in his (the defendant's) name, and by that act consented, as it seems to us, that the general property in the ship should be considered from that time as being in the defendant. The defendant had, at that time, paid half what the ship, when complete, would be worth. Paton could not be injured by having the general property in the ship consi- dered as vested in the defendant, because he would still have a l^en upon the possession for the residue of the price; and we think the legal effect of signing the certificate for the purpose of having the ship regis- tered was, from the time the registry was complete, to vest the r^oriYi "general property in the defendant. In order to register the <- J ship in the defendant's name, an oath would be requisite that the defend- ant was the owner, and when Paton concurred in what he knew was to lead to that oath, must he notbe taken to have consented that the own- ership should really be as that oath described it to be ? The case of Mucklow V. Mangles, 1 Taunt. 318, seems to us to be clearly distin- guishable from the present, because the bargain there for building the barge does not appear to have stipulated for the advances which were made, and those advances do not appear to have been regulated by the progress of the work. Mr. Justice Heath's opinion appears to have been founded on the notion that the builder was not tied down to deliver that specific barge, but would have been at full liberty to have substitut- ed any other he was building, and the builder had done no act expres- sing an unequivocal consent that the general property should be con- sidered vested in the purchaser. The painting of the name upon the stern, the only act there, pledged the builder to nothing ; it expressed an intention that the barge should be Pocock's, but it did no more. He might change that intention and obliterate the name. But the signing of the certificate here, to the intent that the defendant might obtain a registry in his own name, was a consent that what was necessary to ena- ble the defendant to obtain such registry should, as between them, be considered as complete, and that, as the defendant would have to swear that he was sole owner of the ship, the ownership should be considered his. We are, therefore, of opinion, that the assignees, who claim under Paton, are bound equally with him; and as this is not a case within the Statute of James, the plaintiffs are not entitled to recover the general 210 ROSS ON COMMERCIAL LAW. value of the ship. And as to the rudder and cordage, as they were bought by Paton specifically for this ship, though they were not actu- ally attached to it at the time his act of bankruptcy was committed, they seem to us to stand upon the same footing with the ship, and that, if the defendant was entitled to take the ship, he was also entitled to take the rudder and cordage as parts thereof. Upon the last question, however, we are of opinion against the defendant. Though the general ownership was vested in the defendant, the possession remained with r*qn8l *P'''t°" > ^^^ ^^ *'^^ ^^^^^ '^°^ ^^^ ^^^^^ ^""^ fourth instalments L J were to be given at the launching of the ship, (when launched,) Paton, had he completed the ship, would have had a lien upon it till those bills were given ; and as the defendant thought fit to take the ship before it was complete, after having given bills for the first three instalments only, we think he ought to have given a bill for so much of the fouTth instalment as, according to the value of what remained to be done, Paton was entitled to receive; and that, unless what remained to be done would be equal to the whole of the fourth instalment, his taking the ship, without giving or tendering such a bill, was a wrongful taking. We are therefore of opinion, that, according to the provision made in that respect in the case, it ought to be referred to Mr. Bainbridge and Mr. Clayton, and such third person as they shall appoint, to take an account of the want of materials stipulated to be provided by Paton not on board, and the fair expense of launching, and to enter the verdict accordingly. If the want of materials, and the expense of launching, shall amount to £750, the verdict to be entered for the defendant; if it shall amount to less than £750, a verdict for the difference to be entered for the plaintiff. Judgment accordingly. II. — CLAKKE V. SPBNCE. Hilary Term, 1836.— E. 4 Ad. & El. 448. Eng. Com. Law Reps., vol. 31. Trover for a ship. Plea, the general issue. The plaintiffs were merchants, carrying on business at Newcastle-upon-Tyne, under the firm of Clarke, Plummer, and Co.; the defendants were the assignees of John Brunton, a bankrupt. On the trial before Alderson, J., at the Durham Spring Assizes, 1834, a verdict was found for the plaintiffs for £1002, lis., subject to the opinion of this Court on the following case. On the 24th of February, 1832, Brunton, before his bankruptcy, con- r*309"l ^'^^''^^^ ^y ^ written agreement to build a ship (not *now in L J question) for the plaintiffs, and the contract was performed on both sides. The agreement commenced with a specification, stating, under several heads of « dimensions," " scantling," " stores," &c., the manner in which the ship was to be built, the materials to be used, and the outfit to be furnished ; and it then proceeded as follows :— " It is agreed between Mr. John Brunton of Southwick, shipbuilder, and Clarke, Plummer, and Co. of Newcastle, that the said Mr. John Brunton will build a vessel of the before-mentioned dimensions and scantlings, in every I OONTEAOT OF SALE. 211 point fully equal to the Andromeda in workmanship, and fit said hull out with the materials of the sizes and descriptions before named, all of approved quality, &o. Mr. Benjamin Howard to superintend the build- ing and outfit. The vessel to be launched in the month of July next ensuing : for the sum of £3250, payable as follows : — When rammed, by bill at three months' date to the amount of, £400 When timbered, the like payment of . . . 400 When decked, the like payment of . . . 400 When launched, the like payment of . . . 500 The residue or balance, one half at four months' and six months' date, to the amount of . . . 1550 £3250 "John Brunton for self and Co. " Signed at Southwick, 24th February, 1832. "Thomas CiiARKE." " 1832, March 22 Agreed with Mr. Brunton to make the vessel six inches deeper, say to be 17^ feet deep, for which he is to be paid £25. On same day arranged with Mr. Howard to inspect the building of the vessel, for which he is to be paid the sum of £40. "Thomas Clarke." On the 5th of July, 1832, Brunton contracted in writing with the plaintiffs to build them another ship, the subject of this action. The agreement was as follows : — *" Southwick, 5th July, 1832. [-h»qiq-| " Messrs. Clarke, Plummer ^^ ^""'^ * '^^^'^ ^^^^ to occur again. The present *case, L -I however, falls within the authority of all those cited, because here, by the contract, there was a specific appropriation of the several parts as they were finished, and payment made or tendered for each suc- cessively. The payments and tender left the assignees no lien. It may OONTaAOI OF SALE. 215 be said that, when the third instalment was due, the whole £400 should have been tendered, without regard to the £200 paid in advance ; but the payment of that sum to the bankrupt was payment to the assignees. Besides, even if the plaintiffs had not shown a sufficient tender, and demand and refusal, it is immaterial, because there was a direct conver- sion by selling and disposing of the ship. Then, as to reputed ownership; ito support a claim by the assignees on that ground, the bankrupt ought to have had the ship in his posses- sion, order, and disposition, " by the consent and permission of the true owner," according to statute 6 Geo. IV. cap. 16, sec. 72. But, to give consent, the owner ought to be entitled to possession. Here the ship was not to be delivered till complete : in the meantime Brunton was entitled to the possession. That being so, the reputation of ownership was immaterial; and evidence of it ought not to be admitted. The credit which the bankrupt may have obtained by holding the property is, in itself, of no weight; the case is not within sec. 72 of the statute, unless the bankrupt, at the time of the act of bankruptcy, had possession by the owner's consent and permission. It was so considered in Smith v. Topping, 5 B. & Ad. 674, and Carruthers v. Payne, 5 Bing. 270, in which cases possession was held against the wish of the true owner, and in Muller v. Moss, 1 M. & S. 335, where the bankrupt did not hold by permission, but had a right for the time, which case more resembles the present. In The Earl of Shaftesbury v. Eussell, 1 B. & C. 666, where the party in possession of goods had only a limited use of them, and that under the provisions of a will, and not by any consent of the trus- tees, who were the true owners, it was held that, " if he had been a trader and a bankrupt, and had had the goods in his possession at the time of his bankruptcy, under the circumstances stated in this case, they would not be considered as in his order and disposition with the consent of the true owner, within the meaning of the 21 James I. cap. 19." *Coltman, contra As to the first point; Woods v. Russell, p:((qif!-i 5 B. & Aid. 942, the case chiefly relied upon for the plaintifiB, >- J was not decided on the ground stated by Abbott, C. J., in the passage which has been cited; the decision proceeded on the fact that the bank- rupt had signed a certificate to enable the defendant to have the ship registered in his own name ; and, in the subsequent cases in which Woods V. Eussell is referred to this is always pointed out. Battersby V. Gale and others, in which this Court refused a rule nisi for a new trial in Easter Term, 1833, is, to some extent, an authority on the present question. In that case the motion was grounded on the judgment of Abbott, C. J., in Woods v. Russell ; but it is evident, from the intima- tion of opinion then given, that, if a decision had been necessary, the law laid down in that judgment would not have been fully recognised; for it was asked whether, if the instalment paid had been less than the value of the work upon the performance of which that instalment was payable, the builder would not have had a lien for the residue. If that were so, the purchaser could not, by paying the instalments, acquire the property in the successive portions of the ship, unless the amount of 216 ROSS ON COMMERCIAL LAW. each instalment precisely equalled the value of the corresponding portion of the work. If Woods v. Russell, 5 B. & Aid. 942, had been a clear authority on the point now in question, G-oode v. Langley, 7 B. & C. 26, might have been decided on the ground that the gig seized in that case had become the plaintiff's property before it was taken by the sheriff} but the Court declined entering upon that point. [Patteson, J — In that case there was no arrangement, as here, for paying by instalments. The present case is put by the plaintiffs as if the ship were several ships, or several parcels of goods, and the property in each vested as the in- stalment was paid. Then, after an instalment had been paid, a part of the ship, which was complete, would be vested in the plaintiffs, and a part, which was being completed, in the bankrupt. It would seem that they would be tenants in common.] The parties here contemplated an entire contract. The plaintiffs wished to have a complete ship ; and this mode of payment was arranged for the mutual accommodation of the par- ties, and not with a view of appropriating parts of the work as it went on. r*m71 *Wi*li *^® property a risk would pass; and it is not to be sup- L J posed that the plaintiffs meant to incur that risk before they re- ceived the ship. The appointing of a superintendant was only to secure the plaintiffs against the putting in of bad materials as the work proceeded. Abbott, C. J., said, in Woods v. Russell, 5 B. & Aid. 946, that the pay- ment by instalments had the effect of specifically appropriating the very ship in progress ; but, supposing the parts to be so appropriated, it does not follow that the property in them passed. There may be an agreement tO' appropriate particular materials to a work ; and, after the work has been executed to a certain extent with those materials, the purchaser may be entitled to bring an action if he is deprived of them ; but yet the pro- perty may not vest in him as the work proceeds. If it does, at what time does the vesting take place ? Does each stick of timber become the property of the plaintiffs as it is put in ? or does a property pass in each distinct portion of the frame as it is completed? [Watson. — The plaintiffs say, that each particular portion of the ship passed to them as it was completed. As a stick of timber was put in, that, and the whole ship with it, so far as the work was completed, became their property. The effect of the payment was only to divest the builder's lien. Colb- EIDGK, J — Then you argue that the property passed independently of any payment of instalments.] If the property in each piece of timber passes at the time when it is put in, at what price does it pass ? At the market price of the day ? That may be very different from the artificial value (if it may be so termed) which the piece acquires from the use made of it in the work. Or will it be said that, as the value of the whole ship is to the value of the particular piece of wood, so shall the whole price be to the price of the piece of wood ? But this is not the contract of the parties. To apply the question more particularly to the present case. The value of the frame, as it stood between the times for payment of the second and third instalment, was £1600. Did the property vest in the plaintiffs at that price ? If so, it became afterwards vested at a different price ; for, when the third instalment became due, the builder was enti- tled to only £1200. And, if the plaintiffs could not then have demanded CONTEAOT OF SALE. 217 the frame without a tender of *the remaining £400, it cannot r#oio-i consistently be said that the plaintiffs acquired the property on L J paying the instalment. If the passage cited from 2 Bla. Comm. 448, were applicable, the property in so much of the work as might from time to time be done would pass as soon as the contract was made ; the instal- ments might be dismissed from consideration, and the supposed authority of Woods V. Russell, 5 B. & Aid. 942, would be unnecessary. [Pattbson, J. — In that passage Blackstone is speaking of a sale of goods, not a con- tract for work.] As no property vested in this case during the progress of the work, no question could arise as to lien, nor can the payments be accounted for as intended to divest it. Suppose the bankrupt had, be- tween the times for paying the first and the second instalment, refused to complete the work ; if the plaintiffs had then required him to deliver so much as was completed, he could not have insisted on his lien. The plaintiffs might have said, "You have a right to detain the work for the purpose of finishing it ; but unless you finish it, you can have no right to hold it on a claim of lien." The assignees can have no right which the bankrupt would not have had, except that they may repudiate the contract. Butsodoing, they can have no lien. If they could, they would also have a right of action for the money ; but an assignee cannot re- nounce the contract, and yet sue in respect to the work done. It is true that in Woods v. Eussell, 5 B. & Aid. 942, the assignees were held enti- tled to recover a portion of the fourth instalment, though the work had not been completed; but the Court there thought the non-completion waived by the act of the defendant. The rule in the case of sales is, that while anything remains to be done by the seller before the goods are in a deliverable state, the property shall not pass : Rugg v. Minett, 1 1 East, 210, Simmons v. Swift, 5 B. & C. 857, Tarling v. Baxter, 6 B. & C. 360. And it is reasonable that the property which carries with it the risk, should not be held to pass while anything remains to be done by the seller. The rule thus recognized with respect to goods sold, applies a fortiori in a case like the present, where the property is changing in its nature and increasing in value while it remains in the workman's hands. [Coleridge, J. — You may be assuming too *much in supposing p;^qiqT that the risk remains with the builder while the ship is undeliv- L J ered. If the ship had been burnt could the plaintiffs have recovered back the instalments?] It is perhaps not material to contend so. As to the reputed ownership. Smith v. Topping, 5 B. & Ad. 674, and Carruthers v. Payne, 5 Bing. 270, differed entirely in their circum- stances from the present case. [Patteson, J. — Assuming that the property had passed to the plaintiffs, how does this differ from the case of a ship put into the hands of a builder to repair after a voyage ?] In that case the ship has once been ^notoriously in the possession of the owner. Here the work was never out of the possession of the bankrupt. The case comes within the distinction taken in Lingard v. Messiier, 1 B. & C. 308. [Patteson, J The question here turns upon the nature of the possession. The ship was in the hands of the builder for the purpose of a specific work : she was a thing unfinished. There is nothing here of a possession by consent of the owner,] 218 BOSS ON COMMERCIAL LAW. W. E. Watson, in reply — In Woods v. Russell, 5 B. & Aid. 942, the certificate was one only of many circumstances from which the Court held that the property vested. Here the terms of the contract, and the mode of payment, show that the parties intended the property to pass. Abbott, 0. J., said there, " The payment of these instalments appears to us to appropriate specifically to the defendant the very ship so in pro- gress, and to vest in the defendant a property in that ship." [Patteson, J. With great respect to the authority of Lord Tenterden, I should say that that expression is inaccurate. As that case was put it could not be necessary that a second instalment should be paid to make the property vest.] By the contract here, the plaintiffs were to pay for a particular ship which was in progress. The identical ship was to be delivered. The payments were to be made for the parts of that ship : if she had been burned while building, the plaintiffs could not in any form of action have recovered back the sums advanced. If the builder had withdrawn that ship and substituted another it would not have been a completion lof his contract. The doctrine laid down in Woods v. r*Q9m I^iissell, 5 B. & Aid. 946, is not *the opinion of the Lord Chief L -I Justice alone, but that of the whole Court. In Goode v. Langley, 7 B. & C. 26, Parke, J., then at the Bar, admitted in argu- ment that the doctrine in question was established by Woods v. Russell. Battersby v. G-ale, 4 Ad. & Ell. 458, n., is consistent with the argument for the plaintiffs. A property had passed on part of the vessel being finished, but there was a lien for work done since the instalment had been paid; and the question was how the amount of that lien should be estimated. Here the defendants argue, in effect, that the remedy of the plaintiffs, if the work was not completed, was for a breach of con- tract, and not for a conversion. But that is not so. If the bankrupt had refused to complete the work, the plaintiffs might have taken possession, and finished it for themselves without making any tender. Any question of price, at a time between the periods fixed for paying the instalments, might he satisfactorily settled by a jury. The builder and the plaintiffs were not tenants in common. As soon as the property in any part of the ship vested, the rest of the work done, and not paid for, was only work done on the plaintiffs' chattel. In Rugg v. Minett, 11 East, 210, and other cases of that class, the right of the purchaser was incomplete till there had been a specific appropriation : here the article was appropriated and vested in the plaintiffs as the work went on, by force of the contract. Cur. adv. vult. Williams, J., in this Term, (February 1,) delivered the judgment of the Court. The principal question raised by this case is, in whom, under the special terms of the contract entered into between the plain- tiffs and the bankrupt, John Brunton, the general property in so much of the vessel as had been put together at the time of the bankruptcy was vested. All consideration of any special property which might be in the bankrupt, by reason of a lien for moneys expended on the vessel, according to the doctrine laid down in Woods v. Russell, 5 B. & Aid. ' 942, is removed from the case by the tender of all such moneys which OONTKAOT OP SALE. 219 has boon made by the plaintiffs : and we desire it to be distinctly under- stood that, in the judgment which *we are about to pronounce, r;^qo-n we give no opinion whatever as to the soundness of that doctrine. L J On the part of the plaintiff's, it was not denied in argument, nor could be according to decided cases, Mucklow v. Mangles, 1 Taunt. 318, Simmons v. Swift, 5 B. & C. 857, Kohde v. Thwaites, 6 B. & C. 388, Goode V. Langley, 7 B. & C. 26, Atkinson v. Bell, 8 B. & C. 277, Carruthers v. Payne, 5 Bing. 270, and known principles of law, that, in general, under a contract for the building a vessel, or making any other thing not existing in specie at the time of the contract, no property vests in the party whom, for distinction, we will call the purchaser, during the progress of the work, nor until the vessel or thing is finished and delivered, or at least ready for delivery and approved by the pur- chaser ; and that, even where the contract contains a specification of the dimensions and other particulars of the vessel or thing, and fixes the precise mode and time of payment by months and days. The builder or maker is not bound to deliver to the purchaser the identical vessel or thing which is in progress, but may, if he please, dispose of that to some other person, and deliver to the purchaser another vessel or thing, provided it answers to the specification contained in the contract. But it is urged on the authority of Woods v. Russell, 5 B. & Aid. 946, that where the contract provides, as that in question does, that a vessel shall be built under the superintendence of a person appointed by the pur- chaser, and also fixes the payment by instalments, regulated by particular stages in the progress of the work, the general property in all the planks and other things used in the progress of the work vests in the purchaser at the time when they are put to the fabric under the approval of the superintendent J or, at all events, as soon as the first instalment is paid. The facts in the case of Woods v. Russell did not make it necessary to determine this point j neither did the decision of the Court proceed ulti- mately on any such point, but on the ground that the vessel, by virtue of the certificate of the builder, had been registered in the name of the purchaser, and that the builder had, by his own act, declared the general property to be in the purchaser. This appears both by the judgment itself, and by the notice taken of it by Lord Tenterden in the last edition *of his book on shipping, page 44. Bat there is a passage in the r.qnoT course of that judgment which goes strongly to establish the L -I point contended for by the learned counsel for the plaintifis; and, though the opinion expressed in that passage is extrajudicial, yet, considering that time was taken before the judgment was pronounced, and the very great learning of those by whom it was pronounced, we should certainly hesitate very much before we could come to any conclusion contrary to that opinion. The passage is as follows : — (His Lordship then read the passage cited, ante, p. 306.) If it be intended in this passage that the specific appropriation of the parts of a vessel while in progress, however made, of itself vests the property in the person who gives the order, the proposition, in so general a form, may be doubtful. It seems to be clear that as, by the contract, the vessel was to be 5i20 ROSS ON OOMMEROIAL LAW. built under a superintendent appointed by the purchaser, the builder could not compel the purchaser to accept any vessel not constructed of materials approved by the superintendent ; and, on the other hand, that the purchaser could not refuse any vessel which had been so approved. It follows that, as soon as any materials have been approved by the superintendent and used in the progress of the work, the fabric consist- ing of such materials is appropriated to the purchaser ; otherwise the superintendent might be called upon, when one vessel had been nearly constructed, to begin his work de novo, and superintend the building of a second : and, in this point of view, the appointment of a superinten- dent, by the contract, appears to be of considerable importance. As soon as the last of the necessary materials is approved and added to the fabric the vessel is complete ; the appropriation is complete ; and, as- suredly, the general property in the vessel must vest in the purchaser, nothing remaining to be done prior to the delivery ; and this is agreeable to the current of all the authorities, most of which have been cited above. Until, however, the last of the necessary materials be added the vessel is not complete ; the thing contracted for is not in existence j for the contract is for a complete vessel, not for parts of a vessel ; and we have not been able to find any authority for saying that, whilst the thing P^qnq-i contracted for is not, in existence *as a whole, and is incomplete, •- -I the general property in such parts of it as are from time to time constructed shall vest in the purchaser, except the above passage in the , case of Woods v. Kussell, 5 B. & Aid. 946. Grranting, therefore, that under such a contract as this, the parts of the vessel, as they are added to the fabric, are appropriated to the pur- chaser by way of contract, so that neither could he refuse them when the vessel should be completed, nor the builder compel him to accept any other, yet it does not necessarily follow that such appropriation vests the property in the purchaser until the whole thing contracted for is in existence, that is, until the completion of the vessel. But, in the pas- sage under discussion, the payment under the contract is relied on as the most material point, the appropriation being effected, as it is said, by that payment : and, accordingly, in Atkinson v. Bell, 8 B. & C. 282, Mr. Justice Bayley, in alluding to Woods v. Eussell, 5 B. & Aid. 942, says, " that as by the contract given portions of the price were to be paid according to the progress of the work, by the payment of those portions of the price the ship was irrevocably appropriated to the person paying the money. That was a purchase of the specific articles of which the ship was made." Now it is to be observed, in regard to the payment which is relied on in these passages, that where an actual delivery has taken place, pay- ment is wholly immaterial to the vesting of the property ; and further that, by the modern doctrine and the cases above alluded to, in order to vest the property in goods under contracts of sale, it is only necessary that the identical goods which are the subject of the contract should be ascertained, and the price fixed; and when those things are done the general property vests by the contract before actual delivery j and the CONTRACT OP SALE. 221 payment of the price is quite immaterial for that purpose. Whether that modern doctrine be founded on a misconception of the civil law or not, we do not think it necessary or proper to discuss : the doctrine has been clearly laid down and acted on for many years, and ought not to be lightly disturbed ; nor does this case turn upon that doctrine. A doubt may exist whether such a contract as the present be properly a contract of buying and selling; but, assuming it to *be so, and we have rifionA-i so treated it for this purpose, the requisites to the vesting of the L J general property under the contract are clear. The payment of the in- stalments may indeed be evidence that the purchaser has approved of the fabric so far as it has been constructed, and may therefore as it were ratify the appropriation made by the builder; but in itself it can operate nothing, unless it be by the contract made a condition precedent to the vesting of the property. It is not so made by the contract in question in express terms; neither was it in the case of Woods v. Russell, 5 B. & Aid. 942 ; but we appre- hend that t^Q passage above cited from the judgment in that case is founded on the notion that provision for the payment regulated by par- ticular stages of the work is made in the contract, with a view to give the purchaser the security of certain portions of the work for the money he is to pay, and is equivalent to an express provision that on payment of the first instalment the general property in so much of the vessel as is then constructed shall vest in the purchaser. If this notion be cor- rect, the payment is no doubt material to the vesting of the property, and the effect of such payment is, that there is not only an approflriation of so much of the vessel as is then constructed, but also a vesting of the general property in so much in the purchaser, subject to the right of the builder to retain it in order to complete it, and earn the rest of the price. The rights of the parties will then be in the same state as if so much of the vessel as is then constructed had originally belonged to the purcha- ser, and had been delivered by him to the builder, to be added to and finished; and it will follow that every plank and article subsequently added will, as added, become the property of the purchaser as general owner. Several reasons may perhaps be adduced to show that the more obvi- ous intention to be collected from the terms of this contract is, that the builder requiring advances of money in the progress of an expensive work, the purchaser is contented to make such advances, provided he sees the work in such a state of progress as that he may calculate on having an equivalent for his mtoney within a reasonable time ; and there- fore he stipulates that his advances shall be made at specified stages of the work. *But, even if this be the more obvious intention, it by no r^^qocn means follows that the view taken of the contract by the Court <- J in Woods v. Jlussell, 5 B. & Aid. 946, is not correct ; for the intention there supposed is not in any respect inconsistent with that which is above suggested ; both may well exist at the same time : and though if it were the intention of the contracting parties that the general property should vest in the manner supposed, such intention might have been Febkttart, 1855.— 15 222 EOSS ON COMMERCIAL tAW. expressed in less ambiguous terms, yet, if it can fairly be collected from those which have been used, there is nothing either in principle or in practice to prevent the Court from carrying it into effect. On the contrary, as such a construction has been put on a similar con- tract by so high an authority in the case of "Woods v. Kussell, 5 B. & Aid. 946, which as to this point in particular has been subsequently recognised, and as that construction has probably been acted upon, since that decision, by persons engaged in ship-building, we feel that we ought not to depart from such construction ; and we adopt the opinion of the Court in Woods v. Eussell, though with some hesitation for the reasons above assigned. Another point was raised upon the statute 6 George IV. cap. 16, see. 72, with respect to reputed ownership in cases of bankruptcy, as to which it is sufficient to say, that this case is plainly not within the statute ; for, although the plaintiffs were the true owners of the vessel, yet it was not in the possession, order, or disposition of the bankrupt within that sec- tion, any more than a vessel or other article sent to a builder.or manu- facturer to be repaired is within that section. We think, therefore, that the evidence as to reputed ownership was properly rejected. ^ Upon the whole, we are of opinion that the plaintiffs are entitled to maintain this action of trover, and that the verdict must be entered for them for the sum stated in the case, viz., £1002, lis. Verdict to be entered as above. r*'?26l *Tlie case of Laidler v. Burliason, 2 M. &W. 602, was an action of tro- L J ver for one-fourth part of a ship, contracted to be built for the plaintiff and seven other parties, who engaged to take shares in the vessel. The agreement was in these terms, — "We the undersigned hereby engage to take shares in the before-mentioned vessel as set opposite to our respective names, and also the mode of payment," and was thus signed by the plaintiff " Thomas Laidler, one-fourth." The Court held that no property passed by this agreement to the plaintiff. Lord Abinger, 0. B. — "There is no occasion to qualify the doctrine laid down in Woods T. Russell, or Clarke v. Spence. I consider the principle which those cases esta- blish to be, that a man may purchase a ship as it is in progress of building, and by the terms employed there, the contract was of that character; a superintend- ent was appointed, and money paid at particular stages. The Court held that that was evidence of an intention to become the purchaser of the particular ship, and that the payment of the first instalment vested the property in the purchaser. Suppose the builder had died after the first instalment was paid, the ship in its then state would have become the property of the purchaser, and not of the exe-. cutors. A party may agree to purchase a ship when finished, or as she then stands.- Of which sort is this contract? Did it pass the property to the purcha- ser presently, or was it to pass when the ship was finished ? I think it is of the latter description. There would, have been a specific sum appropriated, if a sale in" the present state had been intended. The contract is also for goods to be sup- plied, cables, &c., when she was finished. If the seller became bankrupt, or died, what sum could be recovered? No price is appropriated by the parties. It is not till she is finished and delivered that the sale takes place." -Parke, B.— " I concur in the view which has been taken by the Lord Chief Baron. The whole case resolves itself into a consideration of the contract. Was it a present bargain and sale of the materials of the ship lying there ? If a man bargain for a specific chattel, though it is not delivered, the property passes, and an action lies for the non-delivery, or of trover. Langfort v. Tiler, 1 Salkeld, 113; Sheppard's Touch- OONTEAOT OF SALE. ' 223 Stone, 224, 225. But it is equally clear, that a chattel which is to be delivered in futuro, does not pass by the contract. Two questions arise : — First, is this an article which would correspond with the terms of the contract? Secondly, is the contract for an article to be finished ? In the latter case, the article must be fin- ished before the property Tests. In the first, an action would lie at once for the non-dellTery. The contract describes all the several particulars to be supplied, and then it concludes, — 'We the undersigned *agree to take shares in the r^aoi?-] before-mentioned vessel.' The plaintiff is a purchaser of one-fourth. \t ^ J is clear that he was not to pay for the materials as then existing ; and also, that many other parties, according to the stipulations, were to have an interest in the ship when finished. It is most like the case of Mucklow v. Mangles, 1 Taunt. 318. There is no sum here which can be said to be the price of the chattel in its then state. In Woods v. Eussell there were three ingredients, on which the judgment of the Court was founded. First, a sum was paid, which appropriated the work as then finished j secondly, a superintendent was employed ; thirdly, there was the certificate of registry. In Clarke v. Spence, two of these circumstances occurred. The payment by instalments was evidence of appropriation of the work, as the instalments were paid. But here there is no sum which can by any possibility be considered as the price of the materials then put together. It was an entire contract to purchase the ship when finished, and no property passed till then." BoUand, B. — " In Woods v. Russell, and Clarke v. Spence, the contract was made for a specific thing in existence ; here it is treated throughout as exe- cutory." Alderson, B. — " To vest the property, the identical goods must be sold, and the price fixed. What were the specific goods here ? If one-fourth of the ship was sold, it would vest ; but if it was to be the ship when complete, that was not ascertained at the time, and did not pass. In Woods v. Russell, the con- tract was for the sale of specific parts of the ship, to be paid for successively at particular stages of it; and it was held, that it vested the property in the ship so In progress. That was the construction of the contract ; and on similar words, in Clarke v. Spence, the same construction was put by the Court." IN A SIMPLE CONTRACT OP SALE THE MAXIM CAVEAT EMPTOR AP- PLIES, AND A PAIR PRICE GIVEN FOR AN ARTICLE DOES NOT IMPLY A WARRANTY THAT THE ARTICLE IS MERCHANTABLE, AND THE SEL- LER IS NOT ANSWERABLE FOR ANY LATENT DEFECT UNKNOWN TO HIM, UNLESS THERE BE AN EXPRESS WARRANTY, OR SUCH A DIRECT REPRESENTATION AS IS TANTAMOUNT TO IT. I.— PAEKINSON V. LEE. May 20, 1802.— E. 2 East, 313. In assumpsit, the first count of the declaration stated, that in con- sideration that the plaintiflF would buy of the defendant *five pockets of hops at a certain price, the defendant promised to de- liver to him the same, and that the hops should all be of like goodness and quality, with a certain sample of the hops contained in each of the five pockets, and then produced and shown by the defendant to the plain- tiff. It then stated that the plaintiflF, confiding in the defendant's pro- mise, afterwards bought the hops, &e., and that afterwards the defend- ant delivered to the plaintiff five pockets of hops as and for hops of like goodness and quality with the respective samples so as aforesaid pro- duced and shown to the plaintiff: yet that the defendant did not regard his said promise, but thereby deceived and defrauded the plaintiff in this respect, that the hops contained in each of the five pockets so delivered [*328] 224 ROSS ON COMMEEOIAL LAW. to the plaintiff, at the time of the delivery thereof to him, were not hops of like goodness and quality with the respective samples, but were much inferior, &e., and were bad, damaged, and unsaleable hops ; whereby the plaintiff lost, the benefit of selling the same, &e., and gaining large pro- fits, &c. The second count stated the contract to be, that in considera- tion that the plaintiff would buy of the defendant five other pockets of hops at a certain price, the defendant promised the plaintiff to deliver to him the same, " and that the same should be good, sound, and merchantable hops;" and then alleged. the purchase and delivery as before, of so many pockets of hops as and for good, sound, and merchantable hops ; yet that the defendant did not regard his promise, but thereby deceived and defrauded the plaintiff in this respect, that the said hops at the time of the delivery thereof to the plaintiff, were not good, sound, and merchant- able hops; but, on the contrary, were bad, damaged, and unmerchant- able ; whereby, &c. There were other common money counts, conclud- ing to the plaintiff's damage of £200. Plea, non-assumpsit. At the trial before Le Blanc, J'., at the Sittings after last Michaelmas Term at Gruildhall, it appeared that the plaintiff and defendant were both dealers in hops. In January, 1800, the five pockets were purchased by the plaintiff of the defendant, warranted to answer the samples by which they were sold. They were not, however, removed till the 8th of r*q9Qn "^^^^ ^'"^ '^^ *defendant's to the plaintiff's warehouse. The L J price paid was £16, 5s. per cwt., which was the fair market price at the time for good merchantable hops. Previous to, and at the time of the sale, the samples answered fairly to the commodity in bulk; and no defect was perceptible at that time to the buyer : but owing to the grower of the hops having fraudulently watered them after they were dried, before they were originally purchased by the defendant, (a fraud to which the defendant was not privy, and of which he was wholly ignorant at the time of the sale,) it was discovered a few days after the removal of them to the plaintiff's warehouse, that one of the pockets was so much heated as to be in an unsaleable condition ; which pocket was thereupon immediately returned to the defendant, who received it back, and allowed for it in settling the account for the other hops, which was done on the 18th of October following. In the intermediate time, how- ever, it was found that the other four pockets were in the same unsale- able condition from the same cause ; but, owing to the plaintiff having first attempted to maintain an action against Clarke, the grower, under the mistaken supposition that the defendant was only acting as his agent, (which action was afterwards discontinued on finding that the defendant was not agent but vendee,) the present action was not commenced till upwards of a twelvemonth after the transaction, and after a refusal by the defendant to allow for the rest of the pockets. It appeared further, that the object of watering hops after they are dried, is to give them weight; but the effect of it is, after some months, to cause them to heat and corrupt in the pockets or bags into which they are packed, till at last they become quite unfit for sale. This effect is not produced on the sample, which is usually taken from the middle of the bag, by means of its exposure to the air. It is impossible even for the best judges of the OONTBAOT OP SALE. 225 commodity, 'always to detect this fraudulent practice for some time after- wards by any inspection of the sample or of the commodity itself in bulk, till it is disclosed by the gradual process of heating. However, by the latter end of July, 1800, the efifects of it were apparent in all the pockets ; and at the time of the trial, although the samples still con- tinued as at first, the commodity in bulk was become perfectly r^oqn-i ^unmerchantable. Upon this evidence the learned judge left it L J to the jury to find for the defendant on the first count, if they were satisfied that the commodity agreed at the time with the sample by which it was sold, and there was no fraud on his part ; notwithstanding any latent defect in the commodity in bulk unknown to the parties, by which it became afterwards deteriorated. But he instructed them, that if they were satisfied that the commodity, at the time of the sale, had such a latent defect as no prudence or skill of the buyer could, on inspection, detect or guard against, the plaintiff was entitled to recover on the im- plied warranty in the second count, although the seller had no know- ledge of such latent defect ; it being the understanding of both parties to such a contract, though not expressed in the special warranty, that the one was to sell, and the other to purchase a merchantable commo- dity. He also left it to the jury to consider whether the plaintiff, by delaying so long to proceed against the defendant, had thereby waived his remedy against him? which the jury answered in the negative; and found for the defendant on the first count, as the commodity an- swered in feet to the sample at the time of the sale, without fraud, and he had then no knowledge of the latent defect of the commodity. And they gave a verdict for the plaintiff on the second count, considering that there was an implied warranty in the seller that the commodity was in a merchantable state at the time of the sale. A rule nisi was obtained in the last Term for setting aside the verdict and having a new trial on the ground of a misdirection of the judge in point of law, and of a defect of evidence to support the finding of the jury on the second count. Lamhe, now showed cause, and contended that, notwithstanding the proof of an express warranty by the defendant, the seller, that the com- modity should answer the sample, the performance of which was found by the jury for the defendant, there was also an implied warranty in every contract of this nature, where a fair price was to be given, that the commodity should be in a merchantable condition at the time of the sale ; otherwise the buyer might receive a different thing from that which he stipulated for, and which it was the understanding of i-*qqiT *both parties that, he should have. In Stuart v. Wilkins, Dougl. L -I 20, it was contended by the defendant's, counsel, and not denied, that there were two sorts of warranty ; 1, expressed ; 2, implied. That was the case of a warranty of a horse, where the plaintiff declared in assumpsit; and held well, because such a form was adapted to let in both proofs if necessary. A person, by stipulating expressly for a par- ticular quality or the like in a commodity, cannot be understood as there- by relinquishing all claim to the general soundness and marketable state of such commodity; if so, the greatest inconvenience would ensue in 226 ROSS ON COMMERCIAL LAW. trade, and no man would venture to make a specific contract for fear of omitting anything which would otherwise be implied in common good faith and the usage of trade which is bottomed in confidence. In a policy of insurance there is no express stipulation that the ship shall be sea-wor- thy ; but that is holden to be implied ; and therefore the want of know- ledge in the assured that the ship has a latent defect which renders her not sea-worthy, is no answer to the breach of such implied warranty. If one agree to purchase iron at the market price, which the seller warrants to be Eussian, that does not exclude the implied undertaking that it shall be marketable iron. So if one stipulated to purchase wine of snch a vintage ifor a fair price, it would be no answer to an action for delivering sour wine that it was of that vintage. So a custom in a coun- try that tenants shall have the way-going crop after the expiration of their term, is good, though they held by deed without such stipulation, Wigglesworth v. Dallison, Dougl. 201. It is true that a sound price does not in itself necessarily import a warranty of soundness ; but it is a circumstance from whence the jury may collect what was the real con- tract between the parties. It may be different where a defect is appa- rent on the face of a commodity ; there it may fairly be presumed that the buyer exercised his own judgment upon it ; at least . it was his own fault if he did not : but this was a latent defect, which no prudence or sagacity of the buyer could detect ; against such he gives credit to the seller. Whatever natural defects or infirmities are incidental to the sub- ject-matter, the buyer must take the risk of; such as those with which r*qq9-i horses are afflicted; such as the perishable *nature of all sorts L J of goods; to such defects the maxim caveat emptor applies; but the latent defect of the hops in this cause arose from the fraud of man, which the buyer at a fair price Las no reason to contemplate. Here the substance of the issue was. Whether or not the buyer contracted for the purchase of the commodity with all latent defects : which the verdict of the jury has negatived, and it was a question for their considera- tion. Erskine and Espinasse, in support of the rule, relied on the maxim caveat emptor ; there being neither warranty nor fraud on the part of the defendant. This was a latent defect originating in the fraud of the grower, but wholly unknown to the seller at the time ; for which, there- fore, nothing but an express stipulation can render him liable to the buyer : all that he engaged for was, that the commodity was answerable to the sample by which it was sold : and that is found by the jury. Where a sale is by sample, provided the sample be truly taken, it is the same as if the buyer had examined the commodity in bulk ; therefore both parties must be taken to have the same opportunity of knowledge. No implied warranty can be raised from a fair price in the sale of hops any more than in the sale of a horse, where it is admitted that it does not exist. Neither is there any ground for distinguishing between the latent defects or infirmities of the one and the other : both may origi- nate from the act of man operating by natural means. Every person entering into a contract in the course of trade, is presumed to have a competent skill to enable him to judge of the commodity he bargains OONTEAOT OP SALE. 227 for. He knows the defects to which it is liable, as well from fraud as from natural causes, and he speculates accordingly. In the instance put, of purchasing wine, if the sample as well as the pipe contained in it the principle of future acidity, though not then perceptible to the palate of the individual purchaser, and the only warranty was that the pipe an- swered the sample, it is clear that the seller would not be bound to stand to the loss. Where else can the line be drawn ? and what degree of future deterioration from pre-existing causes will be sufficient to set aside the contract ? Implied warranties may arise out of known usages of trade, •because both parties are presumed to have engaged on such |-»qqQT known terms : but here no usage was proved for the seller to L -• stand to the loss ; on the contrary, witnesses engaged in the hop trade were called by the defendant to show that in the understanding of the trade the buyer was to stand to the risk of latent defects : but the learned Judge refused the evidence, as amounting to no more than opi- nion. If then an implied warranty be to be raised in this, it must in all other cases of sale ; and then the maxim of caveat emptor will be- come an exception instead of a general rule. Grose, J This is a case of considerable consequence ; because the rule laid down in this case must extend to all other cases of sales, not governed by particular usages of trade in this respect. The question is. Whether in the case of a sale, made under the present circumstances, there be any implied undertaking in law that the commodity be mer- chantable? No express undertaking is proved to that effect; and there is no fraud imputed to the defendant. The mode of dealing is, that the plaintiff buys hops from the defendant, whom he knows is not the grower, by samples taken from the pockets in .which the commodity is close packed. He has an opportunity of judging by the samples such as he finds them at the time. If he doubt the goodness, or do not choose to incur any risk of a latent defect, he may refuie to purchase without a warranty. If an express warranty be given, the seller will be liable for any latent defect, according to the old law 'concerning warranties. But if there be no such warranty, and the seller sell the thing such as he be- lieves it to be, without fraud, I do not know that the law will imply that he sold it on any other terms than what passed in fact. It is the fault of the buyer that he did not insist on a warranty ; and if we were to say that there was, notwithstanding, an implied warranty arising from the conditions of the sale, we should again be opening the controversy which existed before the case in Douglas. Before that time it was a current opinion, that a sound price given for a horse was tantamount to a war- ranty of soundness ; but when that came to be sifted, it was found to be so loose and unsatisfactory a ground of deeisioi*. that Lord Mansfield re- jected it, *and said there must either be an express warranty of [*334] soundness, or fraud in the seller, in order to maintain the action. Here neither has been shown ; the defendant merely sold what he had before bought upon the same mode of examination. Therefore I think there ought to be a new trial. Lawrence, J. — I agree with by brother Grose, that there is no ground for the plaintiff to recover. It is not pretended that the defendant has 228 KOSS ON COMMEROIAIi LAW. been guilty of any fraud or imposition in the sale ; and I must suppose that each party was equally well acquainted with the commodity bar- gained for. There was no representation made by the defendant to the plaintiff as to the goodness of the hops to induce him to make the pur- chase. But here was a commodity offered to sale, which might, or might not, have a latent defect : this was well known in the trade ; and the plaintiff might, if he pleased, have provided against the risk by requir- ing a special warranty. Instead of which a sample was fairly taken from the bulk, and he exercised his own judgment upon it ; and know- ing, as he must have known, as a dealer in the commodity, that it was subject to the latent defect which afterwards appeared, he bought it at his own risk. I know of no authority which makes the seller liable for a latent defect where there is no fraud ; and no representation was made by him on the subject to induce the buyer to take the thing. In 1 Roll. Abr. 90 P., it is said, that if a merchant sell cloth to another, knowing it to be badly fulled, an action on the case in nature of deceit lies against him, because it is a warranty in law. But there is no authority stated to show that the same rule holds if the commodity sold have a latent defect not known to the seller. So again, the case is there put : If a man sell me a horse with a secret malady, without warranting it to be sound, he is not liable ; that is, if there be no fraud. The instances are familiar in the case of horses. It is known that they have secret mala- dies, which cannot be discovered by the usual trials and inspection of the horse ; therefore the seller requires a warranty of soundness, in order to guard against such latent defects. Then how is this case different from the sale of a horse, where it is admitted that the buyer must stand r^qoKT *° ^11 s'l'''* latent defects? *To pursue the analogy still fur- L ' -I ther : on the sale of real estates the seller submits his title to the inspection of the purchaser, who exercises his own or such other judgment as he confides in on the goodness of the title : but though it should turn out to be defective, the purchaser has no remedy, unless he take a special covenant or warranty ; provided there be no fraud prac- tised on him to induce him to purchase. If there be, as is said, many frauds practised in the trade, of hops, that may require more caution on the part of the buyers to protect themselves by taking warranties ; even that will not affect the present contract, which was no more than that the bulk should agree with the sample ; which it was proved to do at the time of the sale : and as the seller undertook for nothing more, he cannot be answerable in this case. Le Blano, J. — The inclination of my mind at the trial was, that the jury should find for the plaintiff; because. the drawing of fresh samples, or the inspection of tha commodity itself in bulk, would have afforded no information to the buyer as to the latent defect which afterwards ap- peared : and therefore it occurred to me, that as there was no want of prudence on the part of the buyer, and the defect was of such a nature that no inspection of the thing could have led to a discovery of it, the law would on that account raise an implied undertaking on the part of the seller that it was a merchantable commodity, such as it appeared then to be. But, upon further consideration, as the same rule which OONTEAOTOFSA^E. 229 applies to other cases must govern this ; and as in the only instances in which the same question has come directly in judgment, namely, in sales of horses, it has been considered that, without a warranty of soundness by the seller, or fraud on his part, the buyer must stand to all losses arising from latent defects ; and as I see no ground for distinguishing between this case and those, and no instance has been produced in which a contrary rule has been laid down in respect of any other commodity, I therefore concur with my brothers, that there should be a new trial. Lord Bllbnbobouqh, C. J., then observed, that as he had been con- cerned in the cause, he had forborne taking any part *in the de- r,ooo-i liberations with the rest of the Court j but having now heard L J their opinions, he must declare his entire concurrence with them in the judgment they had delivered. Rule absolute. II. — GRAY V. COX. %May 10, 1825.— E. 4 B. & C. 108. Eng. Com. Law Eeps., vol. 10. Assumpsit. The first count of the declaration stated that, in conside- ration that the plaintiffs, at the request of the defendants, had agreed to purchase of the defendants a quantity of goods and merchandise, to wit, 300 plates of copper sheathing, of a certain weight per foot, to wit, &c., at and for a certain price agreed upon between them, to wit, &o., the de- fendants undertook to furnish the plaintiffs with such goods and mer- chandise as aforesaid, of a good, sound, substantial, and serviceable quality. Averment, that the plaintiffs, relying upon that undertaking, did buy the copper at the price aforesaid, but that the defendants did not furnish such goods as aforesaid of a good, sound, substantial, or ser- viceable quality, but oix the contrary, did, instead thereof, supply the plaintiffs with certain plates of copper sheathing of a very bad, unsound, and worthless quality, by means whereof the plaintiffs having affixed and fastened the said copper plates to a certain ship or vessel of them (plain- tiffs) were forced to lay out a large sum of money in taking them off again and procuring other sheathing-plates, and affixing them to the said ship. The second count varied in some immaterial respects from the first, but had a warranty in the same words as before. There were seve- ral other counts, without any material variation in the statement of the warranty. Plea, general issue. At the trial before Abbott, C. J., at the London sittings after Hilary Term 1824, it was proved by a bill of parcels and receipt given by the defendants, that in May, 1821, they had furnished to the plaintiffs for the ship Coventry a quantity of *what they called " Sheathing r^oQir-i Copper," and the price charged was the market price of the day L J for that article. No express warranty was proved ; the vessel was cop- pered by shipwrights employed by the plaintiffs. The vessel made one voyage to Demerara, and returned in January, 1822, when great.part of the copper was found to be full of holes, and unfit for further use j it was diminished in weight more than usually happens in the same space 230 ROSS-ON COMMERCIAL LAW. of time. Several witnesses proved that copper sheathing generally lasted four or five years, but admitted that the article in question was copper, and appeared good when put on the ship, and that no defect could be discovered by inspection of the article. The defendants were not the manufacturers of the copper, but procured it from the manufacturer, and resold it at a profit of 5 per cent. It was admitted that no imputation of fraud could be cast upon the- defendants, and that it must be con- sidered that they were ignorant of the defective quality of the copper. Upon this evidence it was argued that the plaintiffs ought to be non- suited, no warranty of the copper having been proved. The Lord Chief Justice was of opinion, that the defendants having sold the copper to be applied to a specific purpose, and having received for it the market price of the day, must in law be considered as warranting it to be reasonably fit for that purpose ; and under this direction the plaintiffs obtained a verdict. In Easter term a rule nisi for a new trial was obtained, against which, in Michaelmas Term, Scarlett and J. L. Adolphus showed cause, and Gurney and Gampbell supported the rule, and by the direction of the Court the case was again argued in this Term by J. L. Adolphus for the plaintiffs, and Campbell for the defendants. * Arguments for the Plaintiffs. — There are two grounds on which the plaintiffs are entitled to retain the verdict found for them by the jury. First, The article supplied by the defendants was different from that which was ordered by the plaintiffs, and for which they paid. Secondly, On the contract proved, a warranty arose by implication, that the copper should be reasonably fit for the purpose for which it was supplied. P^non-i *The contract, as stated, was proved by the bill of parcels, and L -1 the receipt given to the plaintiffs on payment of the price. It appeared, therefore, that a certain article was ordered at a certain price, and of a certain weight, whence persons conversant with the trade must have known the nature of the article to be supplied. The weight and the price were those of sound and serviceable copper ; the jdefendants, therefore, must in law be considered as having sold this for sound and serviceable copper, but upon the evidence it is plain it was not so, and that the article furnished was altogether different from that which was ordered, Jones v. Bowden, 4 Taunt. 847, in which case Heath, J., cited and relied upon a case (probably Weall v. King, 12 East, 452, although the report does not notice this point) tried before himself, which was an action on the sale of some sheep sold as stock ; the evidence was that by the custom of the trade, stock were understood to be sheep that were sound, and that learned Judge told the jury that it amounted to an im- plied warranty that they were sound, and that direction was afterwards sanctioned by this Co^rt. In Yeates v. Pin, 2 Marsh. 141, Gibbs, C. J., says, " Where a party undertakes that he will supply goods of a certain description, he must execute his engagement accordingly." In this case it does not a.ppear that the whole jof the article furnished was copper j when the vessel returned* from her voyage, the sheathing had fallen into holes, «nd had lost greatly in weight ; copper usually last much longer, it may therefore be presumed, that the whole of the sheathing was not copper ; and if so, Bridge v. Wain, 1 Stark. N. P. C. 504, is expressly CONTRACT OP SALE. 231 in point for the plaintiflF. Secondly, There was an implied warranty that the copper was reasonably fit for the purpose to which it was to be ap- plied. The maxim caveat emptor, will be set up as an answer to this, but it is inapplicable. In 1 Inst. 102 a, it is said, " That by the civil law every man is bound to warrant the thing that he selleth or conveyeth, albeit there be no express warranty ; but the common law bindeth him not unless there be a warranty either in deed or in law, for caveat emptor." But here a warranty is to be inferred, and by comparing Chandelor v. Lopus, Cro. JttC. 4, with Pasley v. Freeman, 3 T. R. 51, it will be found that the old law respecting deceit has been much relaxed in favour of *the party deceived, particularly since the action of assump- p.qqn-i sit has been in common use. In Fisher v. Samuda, 1 Campb. L J 190, Lord Ellenborough expressed an opinion that a purchaser might call upon a seller to take back his goods if they were unfit for the purpose for which they were intended, provided the objection were made as soon as the defect was discovered, which was done in the present case ; and in Gar- diner V. Gray, 4 Campb. 144, that learned Judge says, that without any particular warranty it is an implied term in every contract, that the pur- chaser shall have a saleable article answering the description in the con- tract; and again, in Bluett v. Osborne, 1 Stark. N. P. C. 384, " A per- son who sella impliedly warrants that the thing sold shall answer the purpose for which it is sold." Laing v. Fidgeon, 6 Taunt. 108, shows that the present case is still more favourable for the plaintiffs, the con- tract being for manufactured goods. Prosser v. Hooper, 1 B. M. 106, is not an authority on the other side, fpr there the undertaking of the par- ties collected from their acts was held sufficient to control the words of the contract. Parkinson v. Lee, 2 East, 314, is the only authority on which the defendants can rely, but there it would have been sufficient (if no warranty is to be implied) for the Judges to have said, there was no warranty and no fraud, but they entered into the whole question of in- tention, and that was made a main ground of the judgment. It makes no difference that the defendants were not themselves the manufacturers of the copper, they were so in effect, for the real manufactures were their agents in that respect. Neither can it be urged that the plaintiffs had an opportunity of inspecting the article : an ordinary consumer of such manufactured goods cannot be supposed capable of forming a judg- ment as to the quality, but the regular dealer in the commodity ought to have such knowledge. Arguments for the Defendants. — It is very material to consider the form of the declaration in" this case. It is in assumpsit, not deceit ; it is not framed upon the bill of parcels, nor upon the receipt. If the declaration had alleged that the defendant undertook that the article was copper, or copper-sheathing, that would have been proved by the receipt or the *bill of parcels; but then, in order to make out a r+o^n-i breach, the evidence must have been that it was not copper, or L -I not copper-sheathing, that would pass for such in the market. Had that been established the case would certainly have been within Bridge v. Wain. But this declaration is very different, it avers a promise that the copper should be "of a good, sound, substantial, and serviceable 232 ROSS ON OOMMEEOIAIi LAW. quality." Bach count is nearly in the same words, each contains a war- ranty against secret defects. If this averment was proved by the evi- dence, it must be admitted that the defendants have no sufficient defence, whatever pains they may have taken to ensure the goodness of the article. But it was not proved, there was not any evidence except the bill of parcels and receipt, and they certainly showed no express contract that the copper should be of any particular description. The witnesses admitted that the article supplied was copper, and that before the voy- age there was no appearance of any defect ; it is therefore clear that the defect was secret. In all simple contracts of sale caveat emptor applies. In the ordinary case of the sale of a horse, if there be no express war- ranty, none can be implied, the price or the purpose to which he is to be applied will not raise one. Everything is bought for some particular purpose; and as to the price, that can make no more difference in this case than in every other where an article is purchased at the usual market price, which certainly does not raise an implied warranty. Fraud undoubtedly is an exception, but it is conceded that no fraud existed in this case. All the cases, when examined, are in favour of the defendants. In Yeats v. Pim there was an express warranty : the custom of the trade was set up as an answer, but held insufficient. In Bridge v. Wain the plaintiff recovered on a count stating that he contracted for scarlet cut- tings, and that the article supplied was not scarlet cuttings. In Fisher V. Samuda no question arose as to the extent of the warranty, and there the goods were supplied for exportation, and were never seen by the plaintiff, which appears also to have been the case in Laing v. Fidgeon. Gardiner v. Gray is also an authority in favour of the defendants, for there it was held that there was no implied warranty that the goods should be equal to the sample exhibited, but the plaintiff recovered, r*34n ^®''^"^® **'^^ article supplied was not that which was described •- J in the contract. The passage cited from Bluett v. Osborne, is prima facie in favour of the plaintiffs, but Lord EUenborough immedi- ately afterwards says, " In this case the bowsprit was apparently good, and the defendants had an opportunity of inspecting it. No fraud is complained of, but the bowsprit turned out to be defective upon cutting it up. I think the plaintiff is not liable on account of the subsequent failure." Here no fraud is imputed, the copper was apparently good, and the plaintiffs had an opportunity of inspecting it. The defendants, therefore, are not liable on account of the subsequent failure. As to Weall V. King, the declaration averred a contract for stock sheep, and the whole question was upon the custom, as explaining the meaning of the contract. _ Here the article supplied was sheathing-copper, and there was no evidence that the customary meaning of sheathing-copper was _" copper that would last five years." Then Parkinson v. Lee is expressly in point; the second count there averred a promise to supply good, sound, and merchantable hops. The evidence was, that the plaintiff paid for them a fair market price for merchantable hops, but no express warranty being proved, it was held that the defendant was not respon- sible for a latent defect in the article. Cur. adv. vult. The judgment of the Court was now delivered by CONTRACT OF SALE. 233 Abbott, C. J., who (after stating the pleadings) proceeded as follows, — At the trial of this cause no evidence of an express warranty was given. The proof was that the plaintiffs ordered a certain quantity of copper-sheathing, and paid for it a fair market price. The plates were affixed to the vessel by a shipwright, who did not then discover any defect in them, nor could any defect be discovered by inspection. The defendants were copper-merchants, not manufacturers. It appeared, also, that on the return of the vessel from her first voyage after the copper was put on, many of the plates were corroded by the salt water, and full of holes, so as to make it necessary to supply *them by r^o^o-i now ones. At the trial it occurred to me, that if a person sold L -■ a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for sueh purpose. I am still strongly inclined to adhere to that opinion, but some of my learned brothers think differ- ently. Supposing, however, my opinion to be correct, still the plaintiffs have not declared on a warranty or promise of that nature, but upon a general warranty j and we are all of opinion that such a general war- ranty does not arise, nor can be implied in law from such a contract of sale as the present. For this reason we think that the opinion expressed by me at Nisi Prius was incorrect, and that the rule for a new trial must be made absolute. Bule absolute. The case of La Neuville v. Nourse, 3 Oampb. 351, was the case not of a sale but of an exchange. The plaintiff had sold the defendant ten dozen of Burgundy, and in about a twelvemonth afterwards he applied to have it exchanged for the like quantity of Champagne, the price of both wines being then the same. The plaintiffs agreed, and the exchange took place. When the Burgundy was sent to the defendant it was of the first quality, and in the best condition, but when it was returned it was found to be-quite sour, and only fit to be used as vinegar. The plaintiff bAught an action of assumpsit to recover the value of the Cham- pagne, or a compensation for the bad condition of the Burgundy. There was no evidence of any express promise to the defendant that the wine returned was in good condition, or of any representation respecting the condition of the wine. The plaintiff was nonsuited. Lord Ellenborough being of opinion that without evidence of an express warranty, or of direct fraud, the action could not be sup- ported, and that the maxim caveat emptor applied to the case. *WHERE AN ARTICLE IS ORDERED TO BE MANUrAOTURED FOR p^,j,„, A PARTICULAR PURPOSE, THE LAW IMPLIES A WARRANTY L "' THAT IT IS FIT FOR THAT PURPOSE. JONES V. BRIGHT. May 25, 1829.— E. 3 M. & P. 155. This was an action on the case in the nature of deceit on the sale of copper to the plaintiff by the defendants, for the purpose of sheathing the bottom of a vessel. The declaration contained twelve counts. The first six alleged a deceit on the sale, and the six last were for a breach 234 EOSS ON OOMMEKOIAL LAW. of the warranty of the copper. The tenth count was in substance as follows :— That the plaintiff, at the special instance and request of the defend- ants, bargained with the defendants to buy of them, and the defendants agreed to sell to the plaintiff divers, to wit, one thousand sheets of cop- per, for the purpose of sheathing the bottom of a certain bark or vessel, called the Isabella; and the defendants, by falsely and fraudulently warranting the said sheets of copper, which had been made and manu- factured by the defendants, to be reasonably fit and proper for the pur- pose aforesaid, sold the said sheets of copper to the plaintiff, at and for a large sum of money, to wit, the sum of £313, 3s., which was after- wards paid by the plaintiff to the defendants for the same : whereas, in truth and in fact, the said sheets of copper were not, at the time of the said warranty and sale thereof as aforesaid, reasonably fit or proper for the purpose aforesaid ; but, on the contrary thereof, the said sheets of copper were, at that time, of an inferior quality, and wholly unlit and improper for the purpose aforesaid, whereby the said sheets of copper afterwards, to wit, on, &c., at &c., became and were greatly corroded, injured,' and destroyed, and of little or no use or value to the plaintiff; and so the defendants, by means of the premises, falsely and' fraudulently de- ceived the plaintiff on the sale of the said sheets of copper as aforesaid. The eleventh and twelfth counts were the same as the tenth in sub- stance, the one omitting the name of the vessel, and the other that the copper had been made and manufactured by the defendants. P^„ . ,-, *At the trial before Lord Chief Justice Best, at Gruildhall, at L -i the Sittings after the last Term, it appeared that the plaintiff was a ship-owner, and the defendants extensive manufacturers and ven- dors of copper; and, as4he plaintiff admitted that no fraud or deceit had been practised by them, the first six counts were abandoned, and the cause proceeded solely on the breach of warranty. A witness, of the name of Eisher, a sail-maker, said, that he knew the plaintiff and the defendants ; that the plaintiff was the owner of the Isabella, and that he told the witness he wanted some copper to sheath her. That the wit- ness went with the plaintiff to the defendants' counting-house, and intro- duced them to each other by saying, " Mr. Jones (the plaintiff) is in want of copper for sheathing a vessel, and I have pleasure in recom- mending him to you, knowing you will sell him a good article ; on which Smith, one of the defendants, said, " Your friend may depend on it, we will supply him well ;" and that the price and time of credit wiere then agreed on. The plaintiff then proved that his shipwright after- wards went to the defendants' warehouse, and selected sheets of copper, which were sent to Bristol on the plaintiff's account, where the Isabella was then lying, and with which she was sheathed. The invoice was dated in January, 1827, and described the article sold as sheets of cop- per, and nails, for the ship Isabella, amounting to ^6353, 15s. Qd. « Credit, six months." The price charged was the market price for the best merchantable copper. It was then proved that the Isabella pro- ceeded on a voyage to Sierra Leone, from whence she returned in No- vember, 1827. That when she sailed from thence, which was about OONTEAOT OF BALE. 235 five months after she was sheathed, it was discovered that the copper was corroded and full of holes, and unfit for further use. Witnesses were then called to prove, that copper employed in sheath- ing vessels usually lasts from four to five years : and a mineralogist, who had assayed the copper in question, stated that it contained more oxygen than it ought : — that copper readily embodies oxygen, but that it might be prevented by care in the manufacture ; and that the defect in .the defendants' sheathing might be attributable to the overheating of the copper, as well as to its having imbibed too great a quantity of oxygen. *For the defendants several witnesses were called, who stated, r^q4^c-| that the corrosion of copper might be occasioned by a variety of L J extrinsic causes. That it decays sooner in some climates than in others; That the holes in the sheathing in question might have been produced by barnacles when the ship lay in the river at Sierra Leone, where they abounded. That the quality of copper might be easily ascertained by its appearance and malleability ; and it was contended that, if there had been any defect in the copper sold to the plaintiff, his shipwright must have discovered it when he sheathed the vessel. His Lordship left it to the jury to say, whether the decay in the cop- per arose from intrinsic defect, or from an extrinsic cause ; and that if it arose from intrinsic defect, whether such defect was occasioned by the want of skill in the manufacture, or from the use of improper materials. The jury found that the decay was occasioned by some intrinsic de- fect, in the quality of the copper, but that there was no satisfactory evidence to show how that defect was occasioned, or to what cause it might be attributed. A verdict was accordingly entered for the plain- tiff, the amount of the damages to be referred to an arbitrator ; leave being reserved to the defendants to move to set aside the verdict and enter a nonsuit, in case the Court should be of opinion that neither of the counts in the declaration was supported by the evidence. Mr. Serjeant Ludlow, on a former day in this Term, obtained a rule nisi accordingly ; and submitted that, as the plaintiff had acquitted the defendants of any intent to deceive or defraud him on the sale, and as there was no evidence of an express warranty, the defendants could not be deemed responsible for the quality of the copper supplied, neither could a general warranty be implied in law from one of the defendants merely saying, that the copper should be fit for the particular purpose to which it was to be applied ; and although the defect might be attri- butable to its inherent quality, there was no proof that the defendants did not use the best possible care in its manufacture, or that the article was not composed of the best materials. The buyer and seller were both innocent parties ; and therefore the rule of caveat emptor applies, and in the late *case of Gray v. Cox, 4 Bar. & Cress. 108, S. C. 6 [.*346] Dow. & Ryl. 200, where the plaintiff declared in assumpsit, that, in consideration that he would buy a quantity of sheathing copper of the •defendant, at a certain price, the latter undertook that it should be good, sound, substantial, and serviceable copper ; it was held that this warranty was not proved by showing a purchase of copper-sheathing at 236 ROSS ON COMMERCIAL LAW. the ordinary market price ; no express warranty having been given : and here, for anything that appears to the contrary, the copper was manu- factured for general sale, and no warranty can be implied by the mere relation of buyer and seller, Mr. Serjeant Wilde, and Mr. Serjeant Russell now showed cause. The tenth count was clearly supported by the evidence, as the plaintiff alleged that the defendants warranted the copper which had been made and manufactured by them ^ to be fit for the purpose to which it was to be applied, viz., the sheathing the bottom of a vessel. The witness Fisher expressly proved that, the copper was required by the plaintiff and sold by the defendants for that particular purpose ; and although it was not exhibited at the time of sale, the defendants ought to have taken care and supplied what they knew was fit and proper for the purpose, and they alone had the means of knowledge, as they were the manufacturers. This case therefore differs from Gray v. Cox, as there the defendants were merely copper merchants and not manufacturers. Besides, the copper was not sold for a general purpose ; and if it were not fit for sheathing it would be altogether useless to. the plaintiff. Although a general warranty may not be implied by law, yet, on the contract as proved, a warranty arose by implication, that the copper should be reasonably fit for the purpose for wltich it was supplied. The intention of the parties must be looked at ; and no precise words are necessary to create a warranty; and as the article supplied was. manufactured by the sellers, the law will imply a warranty that it was reasonably fit and proper for the purpose to which it was to be applied. The sale was effected through the medium of a third person, who, on introducing the plaintiff to the defendants, said, that he knew that they would sell him r*S471 * S"*"^ article ; to which one of the *defendants replied, that the L J plaintiff might depend upon it that they would supply him well. That was an adoption of the course of dealing that was to take place be- tween them, and therefore the rule of caveat emptor does not apply to the plaintiff, as he did not rely on his own judgment, nor is it to be supposed that a ship-owner is acquainted with the various properties of copper, whilst the manufacturer has a full knowledge of the articles he has made, or at all events he ought to have such knowledge. There is no case similar to the present in circumstances ; but the general doctritie applicable to it is thus laid down by Mr. Justice Blackstone, 3 Bl. Com. 162, " A second class of implied contracts, are such as do not arise from the express determination of any Court, or the positive direction of ^y statute; but from natural reason, and the just construction of law. Which class extends to all presumptive undertakings or assumpsits; which, though never perhaps actually made, yet constantly arise from this general implication and intendment of the Courts of judicature, that every man hath engaged to perform what his duty or justice requires." Here justice and expedience required, that as the buyer did not inspect the article he purchased, and therefore could not protect himself against the loss he has experienced ; the sellers should have ' furnished him with an article fit for the specific purpose for which it was ordered, and for which they charged their own price. . No negligence CONTRACT OS SALE. 237 can be imputed to the plaintifF, and the defect in the copper was not discovered until the vessel was about to return from Sierra Leone, and as the plaintiff had paid the full price for it, and the jury found that the corrosion or decay was attributable to an intrinsic defect, their verdict is conclusive ; and if the plaintiff had not paid for it, and the defendants had sued him for the price, it would be an answer to the action to show that it was entirely unfit for the purpose to which it was applied, and for which specific purpose it was sold by the defendants. In Chandelor v. Lopus, Cro. Jac. 4, where the declaration stated, that the defendant having skill in jewels, had a stone which he affirmed to be a bezoar stone, and sold it as such to the plaintiff; judgment was arrested, because it was not averred, that thp defendant knew it not to be a bezoar stone, or that he warranted it to be *one. At the r^oAo-i time of that decision, great strictness was required in the allega- L J tion of a warranty ; but the law has been since much relaxed in favour of the party deceived, and, particularly, since the introduction of the action of assumpsit. But that case cannot apply to the present, as the defendants were the manufacturers of the article supplied, from which a knowledge of its qualities must be implied. If underwriters insure on a ship, — a warranty that she was seaworthy at the time of effecting the Insurance, must be implied. In the case of a life insurance, a warranty that the party whose life is insured, is labouring under no disease that may tend to shortei) his life, is a condition precedent to effecting the policy. la the case of victuals supplied for a ship's crew, it must be implied that they are good and wholesome, and fit for the sustenance of man ; that being the purpose for which they were supplied. So, here, although copper in sheets may be applied to a variety of purposes, yet it was expressly ordered for one specific purpose, viz., the sheathing the plaintiff's vessel; and it was impossible for him to know whether it would answer that purpose or not. Warranties on the sales of horses, or other animals, are easily distinguishable, as there, although the utmost care and diligence be used by the seller, he may not be able to discover a latent disease, but the manufacturer of copper can easily ascertain the quality of the ore, and watch it through the process of smelting, and may afterwards discover its defective qualities by causing it to be assayed. But if a party applying to purchase a horse, tells the seller the purpose for which it is wanted, viz., to carry a lady, or a child, or to drive in a particular carriage, and it should turn out that the horse was vicious, or had never been in harness, the buyer would be entitled to recover, on proving that the horse was unfit for the purpose for which it was sold, although it might be fit for several other purposes. If a man be hired as a tutor, to teach the classics, or mathematics, although he did not say that he was qualified to do so at the time of the hiring, yet, by his assenting to accept the situation, the law will imply that he could teach. In Laing v. Fidgeon, 4 Campb. 169 ; S. C. 6 Taunt. 108, it was held, that in every contract to supply manufactured goods, however low the price, it is an implied term, *that the rjfOAn-i goods shall be merchantable. In Gardiner v. Gray, 4 Campb. L J 144, where the defendant sold twelve bags' of waste silk at ten shillings Februaet, 1855. — 16 238 ROSS ON OOMMEROIAL I,AW. and sixpence per pound, which, on its arrival at its place of destination, was found to be of a quality not saleable under the denomination of waste silk. Lord Ellenborough said, " the, purchaser has a right to expect a saleable article, answering the description in the contract. Without any particular warranty this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply. He cannot, without a warranty, insist that it shall be of any particular quality or fineness, but the intention of both parties must be taken to be, that it shall be saleable in the market under the denomination mentioned in the contract between them." Besides, the copper in question was supplied at the discretion of the sellers, and its quality could not be ascertained by the purchaser at the time of the sale. This case, therefore, is distinguishable from Fisher V. Samuda, 1 Campb. 193, where Lord Ellenborough said, " It was the duty of the purchaser of any commodity, immediately upon discovering that it was not according to order, and unfit for the purpose for which it was intended, to return it to the vendor, or to give him notice to take it back." There, however, the purchaser knew that the article was unfit to be sent to the. place for which it was ordered j but he did not intimate it to the sellers before the season for exporting it was over, and when they might have lost the opportunity of disposing of it at home ; and, in an action brought for its value, the purchaser did not, either in bar of the action, or in reduction of damages, object to the quality of the article, but allowed the seller to recover a verdict for the fiill price agreed upon. In Okell v. Smith, 1 Stark. Eep. 107, in assumpsit to recover the price of copper pans, which the seller engaged should be sound, and made of the best materials, and the purchaser, after trial, found that they were not sound, and would not answer the purpose for which they were intended, Mr. Justice Bayley said, " The plaintiff cer- tainly is not entitled to recover the full price stipulated for by the con- tract, according to which he was bound to furnish pans capable of r*3501 ^"^^^"^'"g ^^'^ purposes for which they were ordered." *Althongh ■ I- -I in Bluett v. Osborne, 1 Stark. Eep. 384, where the plaintiff sold the defendant a bowsprit, which, at the time of the sale, appeared to be perfectly sound, but which, after being used some time, turned out to be rotten ; it was held that, in the absence of fraud, the plaintiff was entitled to recover what the bowsprit was apparently worth at the time of the delivery : yet the language attributed to Lord Ellenborough is inconsistent with the principle ho first lays down, viz., " that a person who sells, impliedly warrants, that the thing sold shall answer the pur- pose for which it is sold ;" for he afterwards said, " what the plaintiff deserves, is the apparent value of the article at the time of delivery." But that could not be so, as the bowsprit then appeared to be good and perfect in every respect, and consequently the plaintiff was entitled to recover its real value. The case of Jones v. Bowden, 4 Taunt. 847, does not apply, as the defendant was guilty of fraud in re-paoking sea- damaged pimento, and advertising it in catalogues, which did not notice that it was sea-damaged or re-packed ; but he exhibited impartial samples of the quality at the sale. In that case, Mr. Justice Heath mentioned CONTRAOT OF SALE. 239 a case tried before him (probably Weall v. King, S. C. 12 East, 452,) which was an action of the sale of some lambs, sold as stock, and the evidence was, that, by the custom of the trade, stock were understood to be sheep that were sound, on which the learned Judge told the jury that it amounted to an implied warranty that they were sound. In Yeats V. Pim, 2 Marsh. 143, Lord Chief Justice Gibbs said, « Where a party undertakes that he will supply goods of a certain description, he must execute his engagement accordingly." Here, it may be assumed, that the whole of the sheathing furnished to the plaintiff was not cop- per, as it soon became corroded and unfit for use ; and in Bridge v. Wain, 1 Stark. Rep. 504, where goods sold were described in the invoice as scarlet cuttings. Lord Ellenborough said, " that an undertaking that they were such must be inferred : that, to satisfy an allegation that they were warranted to bo of any particular quality, proof must be given of such a warranty, but that a warranty was implied that they were that for which they were sold." In Pasley v. Freeman, 3 Terra Rep. 57, Mr. Justice Buller said, " It was rightly held, by Lord Chief r»qci-i ♦Justice Holt, and has been uniformly adopted ever since, that L J an affirmation at the time of a sale, is a warranty, provided it appear on evidence to have been so intended." Although in Prosser v. Hooper, 1 B. Moore, 106, where the plaintiff bought saffron of an inferior quality, which, having kept six months, and sold part, he objected that it was not saffron ; it was held, in an action for a breach of warranty, that, from the length of time, and inferior price given, it was such an article as the plaintiff meant to purchase ; yet, the ground on which the Court decided was, that the terms of the contract were controlled by the acts of the plaintiff himself, in keeping the article and selling part of it. Although the case of Parkinson v. Lee, 2 East, 314, may be relied on for the defendants, it is distinguishable from the present, as the vendors were not the growers of the hops, which had been damaged without their knowledge, and they were sold from samples fairly drawn, and the ;bulk was equal to the samples. There, too, the Court went into the question of intention between the parties, which was made the main feature of the judgment ; and in Gray v. Cox, 1 Car. & Payne, 187, Lord Chief Justice Abbott said, at Nisi Prius, " The question is, whe- ther the copper, so sold by the defendants to the plaintiffs, was fit and proper, or, in the language of the declaration, serviceable copper, for unless it were so, the plaintiffs were entitled to a verdict. Though the defects could not be discovered on the first inspection, yet they must have proceeded from something wrong in the manufacture, and the mer- chant may have his remedy against the manufacturer •" and his Lordship, in delivering the judgment of the Court, in Banc, 4 Barn. & Cress. 115, said, — "At the trial, it occurred to me that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. I am still strongly inclined to adhere to that opinion." But as the plaintiff declared on a general warranty, which did not arise, and could not be implied from the contract of sale, the Court directed a new trial. Mr. Serjeant Ludloio, in support of hi& rule. — The verdict which the 240 ROSS ON COMMERCIAL LAW. P „.-_ plaintiff has recovered, can only be sustained on *the ground of L J an implied warranty, ■which cannot arise on the facts proved at the trial. It must be observed, that this is an action on the case in the nature of deceit, and a uniform series of decisions, from the earliest time to the present, shows that the plaintiff, in such an action, must allege and prove, either an express warranty by the seller, or that he knew that the article he sold was not such as he represented it to be, because fraud and misrepresentation are the gist and essence of the action, and by which alone the seller can be deemed liable. Lord Coke says, Co. Lit. 102, "By the civil law, every man is bound to warrant the thing that he selleth or convey eth, albeit there be no express warranty; but the common law bindeth him not, unless there be a warranty either in deed or in law; for caveat emjpfor," — and that rule applies to all cases, unless there be fraud, or a known concealment of a latent defect by the seller, and the buyer can only recover secundum allegatum et prohaticm. Here there is no pretence to say that there was an express warranty; and there was no proof that the defendants knew that there was any intrin- sic defect in the copper, and the jury so found, for they said that there was no satisfactory evidence to show what was the cause of the defect. If so, the gravamen is the breach of contract, which should be accu- rately stated, and there was no relation subsisting between the plaintiff and the defendants, as the manufacturers of the copper; the transaction related solely to their characters of buyer and sellers, and, if so, the latter could only be liable for a breach of contract arising out of the sale. Although the plaintiff has alleged that the copper was made and manufactured by the defendants, he should have gone further, and stated, that they knew it was defective at the time of the sale ; and, as it was not made to order, and the plaintiff's shipwright selected and inspected it before it was delivered, the defendants could not be liable as manu- facturers, but as sellers only. If this verdict can be supported, the vendor of any manufactured article will be liable for any inherent defect of which he could have no knowledge, although he might have provided the best possible materials, and used every care and diligence in the manufacture. It was at all events incumbent on the plaintiff to show, r*3')31 ^^ ^^ action of this nature, that the decay in the copper was L -I *attributable either to the bad quality of the article itself, or the negligence or want of skill in the workmen who manufactured it; nei- ther of which .was alleged or proved. In Fitzherbert's Natura Brevium, it is said, " if a man sell unto another man a horse, and warrant him to be sound and good, &c., if the horse be lame, or diseased, that he cannot work, he shall have an action upon the case against him ; and so, if a man bargain and sell unto another certain pipes of wine, and warrants them to be good, &c., and they are .corrupted, he shall have an action upon the case against him. But note ; it behoveth that he warrant it to be good, and the horse to be sound, otherwise the action will not lie ; for if he sell the wine or horse without such warranty, it is at the other's peril, and his eyes and his taste ought to be his judges." The Year Book, 26 Hen. VI. 35, is referred to as aI^ authority to establish that principle. In oases of general dealing, between buyer and seller, there CONTRACT OF SALE. 241 can be no implied warranty unless the latter has been guilty of fraud or deceit ; and here, although the defendants sold the copper to the plain- tiflF, it was selected by his agent, and the sheets were not manufactured for the sole purpose of sheathing ships, but might have been applied to articles in domestic use, or to a variety of other purposes, and a ship- wright may easily ascertain good copper, from its malleability, or, at all events, he ought to have known whether it was fit for sheathing when he applied it to the vessel in question. But the invoice is the only evi- dence of the contract, in whioh the article is not described as copper for sheathing, but merely as "copper for the ship Isabella." It must be admitted, that if a person about to purchase a horse of another, specifies the particular purpose for which he wants it, viz., to carry a child, or a timid person, or to drive in harness, and the seller says, he can recom- mend the animal as fit for such a purpose, it would amount to an express warranty. So, if a person supply a tailor with cloth, and desire him to make him a suit of clothes, it must be implied that he will make them to fit him ; but, if a man purchase a suit ready made, the law of caveat emptor applies, and although the cloth may turn out defective or rotten, or made of bad materials, he can have no remedy against the seller. If goods are sold with an express warranty, the suspicions of the buyer *are lulled; but if there be no warranty, and he has the power r#qc4-i of inspection, and the goods are afterwards delivered in specie, L J the seller is no longer responsible. Here the seller was as innocent as the buyer, and it is quite clear that there was no fraud or misrepresenta- tion at the time of the sale. In Selwyn's Nisi Prius it is said, that in actions on the case, in nature of deceit on an implied warranty, which are grounded merely on the deceit, it is essentially necessary that the knowledge of the party, or, as it is technically termed, the scienter, should be averred in the declaration, and also proved ; and the case of Chandelor v. Lopus, is referred to, in order to show the necessity of the averment J and although actions for the breach of an express warranty, closely resemble those in the nature of deceit or implied warranties, yet this distinction must be attended to j^that in the latter actions the gra- vamen is the deceit, and the gist of the action is the scienter; but in actions for breach of warranty, the gravamen is the breach of warranty, and where the plaintiff declares in tort for such breach, it is not neces- sary to allege the scienter, nor, if alleged, to prove ' it. Williamson v. Allison, 2 East, 446. In Kolle's Abridgement, it is said, if a " taverner sell wine (knowing it to be corrupt) to another, as sound, good, and not corrupt, without any express warranty, yet an action of deceit lies against him ; for this was a warranty in law. So, if I come to a tavern to eat, and the taverner gives and sells me meat and drink, corrupted, whereby I am made sick, an action lies against him without any express warranty; for there is a warranty in law :" and the Year Book, 9 Hen. VI. 53, is cited as tan authority in support of that proposition. " But if a man sell a horse to me, without warranting him to be sound, if he be distem- pered in his body, yet no action lies against him ;" and although it is said, that the Year Book, 20 Hen. VI. 35, is to the contrary, yet, on reference to it, there is merely a dictum to that effect by Paston, J., and 242 ROSS ON COMMERCIAL LAW. there the word sachant is introduced. In the old writs of deceit, sachant is always a material word. That the rule of caveat emptor applies to this ease, there being no warranty at the time of the sale, is clear, from a number of authorities. In Noy's Maxims it is said, " that a bargain is per- fect by the delivery of the article bargained for, and caveat emptor;" and in .^^ *Wood's Institutes it is said, "everyone will affirm that his L J wares are good, that the horse which he sells is sound, yet if he does not warrant them to be so, though it was false, no action lies." If a general allegation of a warranty in a, declaration can be supported by proof that the goods were sold for a particular purpose, the distinction between express and implied warranties will be at an end ; and, if the doctrine laid down by Lord Chief Justice Abbott in Gray v. Cox, can be supported to its full extent, every person who sells or manufactures an article, must warrant that it is fit and proper for the purpose for which it is intended : and if there be a latent defect, of which he was wholly ignorant, or which could not have been discovered at the- time, still, he must be responsible, although the defect might not have arisen from want of skill in the manufacture, or in the introduction of improper materials. If a person purchase a quack medicine, or buys articles at an auction where puffers are employed, he cannot complain that he has been im- posed upon, although the article he purchased turns out to be of the most inferior quality, and though, at the time of the sale, it was declared to be made of the best materials. If the plaintiff had alleged that the defendants had not used good materials, or had been guilty of negli- gence, or want of care in the manufacture, the defendants would have proved the contrary ; and as the copper was not made to order, it was incumbent on the plaintiff to show, either that it was composed of impro- per materials, or that there had been a want of skill in the manufacture, but which he failed to do. All the late decisions are in favour of the de- fendants ; and although in Bluett v. Osborne, Lord EUenborough said, that " a person who sells, impliedly warrants, that the thing sold shall answer the purpose for which it is sold ;" yet he qualified that general remark by applying it to the facts of the case before him, for he pro- ceeded to say, " in this case the bowsprit was apparently good, and the defendants had an opportunity of inspecting it. No fraud is complained of, but the bowsprit turned out to be defective, upon cutting it up. I think that the plaintiff (the seller) is not liable on account of the subse- quent failure. So here, the copper was apparently good, and the plain- tiff not only had an opportunity of inspecting it, but his agent actually r*356"l *®^^^''*^'^ i' > ^^^ although there might have been an inherent L -I defect, of Which the defendants were ignorant, they cannot be deemed liable, as it might not have been within their power to prevent it. In Fisher v. Samuda, the beer was supplied for exportation, and it did not appear that the purchaser had ever seen it; and no question arose as to the extent of the warranty. In Okell v. Smith, tlie copper pans were ordered to be made for a particular purpose, viz., the manu- facture of vitriol; and in Bridge v. Wain, the plaintiff recovered on a count stating that the defendant undertook that the article sold was scarlet cuttings, and it was proved that the goods supplied were not scar- OONXaACT OF SALE. 243 let cuttings. In Laing v. Fidgeon, the purchaser had merely a sample of the article s^nt to him, and which was furnished at a low price, as it was intended for exportation. Although in Gardiner v. Gray, Lord Ellenborough said, " where there is no opportunity to inspect the com- modity, the maxim of caveat emptor, does not apply ; yet the plaintiffs recovered, because it appeared to be the intention, both of the buyer and seller, that the article should be saleable in the market under the denomination mentioned in the contract between them, and in'fhe sale note the artiplo was described as waste silk, but was found to be not sale- able under that denomination. But the case of Parkinson v. Lee, is not only a leading authority, but expressly in point for the defendants. There, the second count of the declaration stated, that the defendant promised to deliver to the plaintiff, good, sound, and merchantable hops; and it appeared that the plaintiff paid a fair market price for good mer- chantable hops, but, as there was no fraud, the law would not raise an im- plied warranty that the hops should be merchantable; and that, although there was a latent defect then existing, but which was unknown to the seller, he was not answerable, although the hops turned out to be unmer- chantable; and Mr. Justice Grose there drew the distinction and said, 2 East, 321, "if an express warranty be given, the seller will be liable for any latent defect, according to the old law concerning warranties. But if there be no such warranty, and the seller sell the thing such as he believes it to be, without fraud, I do not know that the law will imply that he sold it on any other terms than what passed in fact;" r^^qc^-i and *Mr. Justice Lawrence said, 2 East, 322, " I know of no L J authority which makes the seller liable for a latent defect, where there is no fraud, and no representation was made by him on the subject to induce the buyer to take the thing. Lord Chief Justice Best. — It is the duty of courts of justice in the administration of the law, to lay down rules calculated to prevent fraud ; to protect persons who are necessarily ignorant of the quality of a com- modity they may purchase, against those who manufacture and sell, and who are consequently fully acquainted with the nature of such commo- dity, and to make it the interest of manufacturers, and those who sell goods on commercial credit, to furnish the best articles that can be sup- plied to their customers. These are the principles on which the Court must act, and in this case it has been admitted that no fraud was at- tempted to be practised by the sellers on the purchaser. The action was brought by the plaintiff, to recover damages from the defendants for the bad quality or insufficiency of certain. sheets of copper, which the plain- tiff has purchased of them for a particular purpose, viz., the sheathing of a ship. It has been insisted for the defendants, that the invoice is the only evidence of such a contract, and that they ought not to be bound by a loose conversation- between them and the party who gave the order, and who introduced the plaintiff to them. To that I cannot ac- cede. Very frequently an invoice is not sent until long after the con- tract has been completed, and in such a case it can be no evidence of the _ contract. The invoice is not like a broker's note, which does contain, and is the only evidence of the contract between the parties. But if 244 . BOSS ON COMMERCIAL lAW. we look at the invoice, we find that the copper was sold for the use of the ship Isabella. However, I do not intend to narrow my argument to the terms of the invoice, but ground my opinion on the authority of a case not cited at the bar, in the course of the argument, viz., that of Kain v. Old, ^hieh was an action for the breach of a warranty of a ship, and where the Court of King's Bench took time to consider; and Lord Chief Justice Abbott, in delivering the judgment said, 2 Barn. & Cress. 634, "where the whole matter passes in parol, all that passes may ™gj.„-. sometimes be *taken together, as forming parcel of the contract, L J though not always, because matter talked of at the commence- ment of a bargain, may be excluded by the language used at its termi- nation." I concurred with the Court in the decision in that case, and to the doctrine of which I still adhere. Whatever then the Court may think was not previous discussion, but formed the ultimate part or ter- mination of the contract, may be taken into consideration as to the terms and nature of the warranty. In a contract of this description, it is not necessary that the seller should say, "I warrant;" it is sufficient if he say.s that the article he sells is of a particular quality, or is fit for a par- ticular purpose. Now let us look at the evidence. There was no doubt as to the credibility of the witness Fisher, who was a mutual acquaint- ance of both parties ; and he stated that when he introduced the plain- tiff to the defendants, he said that the plaintiff was in want of copper for sheathing a vessel, and that one of the defendants said, " we will sup- ply him well," and there was no'^Bvidenee of any subsequent conversation between either of the parties, to show that what was said at that meet- ing was not the principal ingredient of the bargain. From that a war- ranty may be implied; and the jury found that the copper supplied wag not a good article, but that it contained an inherent defect. I do not wish to put this case on those narrow grounds, but to decide it on a broad principle ; for I am clearly of opinion, that if a man manufactures and sells the article he makes, he thereby warrants that it is merchant- able, or that it is fit for some purpose; for in Laing v. Fidgeon, it was decided, that in every contract to furnish manufactured goods, however low the price, it is an implied term that they shall be merchantable. If a party sell an article' for a particular purpose, he thereby warrants it to be fit for such purpose, and there is no express decision to the contrary, although some dicta may be found which do not fully warrant such a proposition. "We have been referred to cases touching the warranty of horses and commodities which are not the produce of human art. But there is a wide difference between a contract for the warranty of a horse, and a war- ranty of an article rendered saleable by the art of man. The owner of a horse maybe ignorant of some latent defects in the animal but a person may r*3591 *S^^^^ against defects in articles which he manufactures, by L J using an ordinary degree of care, and providing proper materials. This distinction explains the case of Bluett v. Osborne, where Lord Ellenborough held that the defendant, who had sold a bowsprit to the plaintiff, might recover what it was apparently worth at the time of the delivery, as it then appeared to be sound, but which turned out to be rotten or defective when it was cut up. There, however, the seller did CONTRACT OF SALE. 245 not grow the timber, he merely formed the bowsprit from it, after it was cut down and dried ; but here the defendants manufactured the copper in question, and they might, by due care, have guarded against its in- herent defects by not allowing it to imbibe so much oxygen, by which it was rendered soft and incapable of resisting the influence of salt water. So there is a wide distinction between a contract for the sale of an article in its natural state, and an article manufactured or rendered serviceable by human ingenuity. In the general sale of a horse, the seller only warrants it to be an animal of the description it appears to be, and nothing more, and if the purchaser make no inquiries as to its soundness or qualities, and it turns out lo be unsound or restive, or unfit for use, he cannot recover as against the buyer, as it must be assumed that he pur- chased the animal at a cheaper rate. But if the purchaser asks for a carriage horse, or a horse fit to carry a lady or a timid and infirm person, the seller, who knows the qualities of the horse, on every principle of honesty, undertakes that it is fit for the purpose to which it was speci- fied it was intended to be applied. So where a conversation takes place between buyer and seller as to the quality of a particular article, if the latter say that it is good, it is an afiBirmation that it is of the quality he professes ; and if it afterwards turns out not to be so, he is answerable for the consequences. In Chandelor v. Lopus, where the defendant sold the plaintifl', as a bezoar stone, a stone which was not a bezoar, Mr. Jus- tice Anderson said, " that the deceit in selling it for a bezoar, whereas it was not so, was a cause of action." So if the seller of an article war- rant it to be of a particular quality, he does not comply with the terms of such warranty, unless the article turns out to be of such quality, as in the case of Fisher v. Samuda, where the plaintiff purchased r^ocnn *beer from the defendants, to be shipped for and consumed at L J Gibraltar ; the sale was an affirmation by the vendor that it was fit to be sent there. Whether or not an article has been sold for a particular purpose is a question of fact rather than of law, but if it be sold for such purpose, the sale is an undertaking that it is fit and proper. As to the system of quacking or puffing, to which allusion has been made, it ought not to be encouraged, it is a mere trap to catch the unwary ; and if, in an action for a breach of contract, it were shown that the article puffed, although sold at a cheap rate, turned out to be of inferior quality, when asserted at the time of sale to be of the best materials and superior work- manship, I should hold that the seller was bound to take it back, or make a compensation to the buyer in damages. These principles lead me to decide the present case in favour of the plaintiff. But as it was said at the trial that the Court of King's Bench had formed a different opinion in the case of Gray v. Cox, I thought it unfit to decide the point at Nisi Prius, although I expected that the jury would have found that the copper was not properly manufactured, as two scientific witnesses, who were called for the plaintiff, stated that it was defective and of an improper quality, as sufficient care had not been taken to prevent its im- bibing too large a quantity of oxygen, or distributing it equally over the whole surface, when in the act of smelting. It also appeared, that at the time of the sale, there was a great competition among the manufacturers 246 ROSS ON COMMEROIAIi LAW. of copper, and that it was frequently sent into the market in a great hurry, and that the prices were lowered in consequence of such compe- tition. Although the conduct of the defendants was most fair and hon- ourable, as far as regarded the sale, yet the copper had suffered in the manufacture, either through the neglect of the workmen, or the/ hurried manner in which it went through the various processes. At all events, it turned out not to be equal to the purpose for which it was intended, nor was the plaintiff supplied well, as the jury expressly found that there was an intrinsic defect in the quality of the copper, which was manufac- tured by the defendants, and which might have arisen from improper materials, or from neglect or want of skill in the manufacture. We have r*^Rn ^^®" referred to principles established *by early authorities, and L J the case of Chandelor v. Lopus has been particularly mentioned, but that does not appear to me to bear upon the question, as all that the Court there decided was, that, in order to render the seller liable, there must be either a warranty, or a false representation ; but it does not follow that there must be an express warranty ; an implied warranty would equally satisfy the terms of that decision. The same answer may be given to the authorities in KoUe's Abridgment, to which we were also referred ; but it is most material to consider the more modern decisions, aad see how they bear upon the question before us, and Parkinson v. Lee is a leading authority on the subject, although the express point was not there decided, as the Court only held, that a warranfty that hops sold should be equal to sample, was satisfied by showing that they were so, although they were not perfectly good or merchantable. Expressio unius est exclusio alterius ; and as the hops turned out to be equal to the sample the purchaser could not afterwards say that they were defective in quality. There, too, the article complained of was the production of nature, and its defect was unknown to the sellers ; whilst here, the copper was manufac- tured by art and labour, and the defendants themselves were the manu- facturers. In Parkinson v. Lee, Mr. Justice Grose said, 2 East, 321, " The question is, whether, in the case of a sale made under the present circumstances, there be any implied undertaking in law that the commo- dity be merchantable ? The mode of dealing is, that the plaintiff buys hops from the defendant whom he knows is not the grower, by samples taken from the pockets, in which the commodity is close packed 3" and he concluded by saying, 2 East, 322, " The defendant merely sold what he had before bought upon the same mode of examination." That case, therefore, only applies to a limited warranty, viz., that the bulk of the article sold should correspond with the sample. It was decided in 1802, and although it was not referred to in the argument in the case of Laing v. Fidgeon, which came before this Court in 1815, yet it cannot be supposed . that Lord Chief Justice G-ibbs, who then presided, was unacquainted with it, when this very point was decided. There the plaintiff declared, that, in r*3621 ^°°s^'^s'"^'^'°''i ^^^^ ^^ would buy of the defendant divers goods I- J *at and for reasonable prices, to be paid for by the plaintiff, the defendant undertook to sell and deliver to the plaintiff such goods of a good and merchantable quality, and to charge a fair and reasonable price or the same : — it was proved that the goods delivered were made of in- CONTRACT OF SALE. 247 ferior materials, and were useless and unmerchantable, and the Court held, that although there was no express contract that the articles should be merchantable, it resulted from the whole transaction, that the arti- cles were to be merchantable, that the defendant (the seller) might have rejected the order, but having accepted it, he ought to furnish a mer- chantable article. The principle deducible from those cases appear to be, that, if a man sells goods generally, he undertakes that they are mer- chantable ; and if he sell them for a particular purpose, he tacitly under- takes that they shall be fit and answerable for that purpose. Here the copper was sold for the purpose of sheathing a ship, and it was proved that it was not fit for it. The plaintiff, therefore, is entitled to retain his verdict. The case embraces a question of great importance to the public. It will teach manufacturers their duty, and that they ought ^ot to attempt to undersell each other by producing goods of an inferior quality, but to manufacture them fit for the purpose for which they are sold. It will also tend to protect the purchaser from imposition, who is necessarily ignorant of the nature of the article sold, whilst the person who manufactures it must, or ought to know its particular virtues and qualities. BIr. Justice Park. — Fully conourriag as I do with the sentiments expressed by my Lord Chief Justice, I beg to say that I entertain no opi- nion adverse to the character of the defendants. The jury have found that' there was an intrinsic defect in the quality of the copper, which might, and was in all probability, occasioned by the neglect of those whom the defendants employed to manufacture it, as it is not to be assumed that it was worked by their own hands. But the principle on which I found my opinion, is the distinction between the manufacturer of an article and the mere seller. The tenth count, on which the jury have found a verdict for the plaintiff, states, that he had bargained with the defendants to buy, and they *had agreed to sell to him (-iKOfjo-i one thousand sheets of copper for the purpose of sheathing the L J bottom of a vessel; that the defendants, by falsely and fraudulently warranting ^ the copper, which had been ma* and manufactured by them, to be reasonably fit and proper for the purpose aforesaid, sold it to the plaintiff for a large sum of money, which was afterwards paid by him for the same j whereas the copper, at the time of the sale, was wholly unfit and improper for the purpose, and became of little or no use to the plaintiff. Independently of the evidence of Fisher, which went to show an express warranty by the defendants, is there not, as against the manufacturer, in a contract of this nature, where the purchaser cannot see or judge of the interior of the article, or know its inherent qualities or defects, and he buys it for a particular purpose, is there not, I ask, an implied warranty that the article, is fit and proper for the purpose for which it is purchased? Here it was proved that the sheathing should have lasted four or five years, whereas it became corroded and altogether useless in the space of as many months. But it has been said that there is no case where there is not an express warranty, in which it is not in- cumbent on the purchaser to allege and prove that the seller knew that the article supplied was not such as he represented it to be ; as, in an 248 ROSS ON COMMERCIAL LAW. action on the case in the nature of deceit, the gravamen is the deceit, and the gist of the action i§ the scienter. But, in declaring on a warranty, it is sufficient to allege a breach in general terms, and it is impossible to know the nature of the warranty, or whether it be express or implied but from the proof at the trial, and it will be then sufficient to show that a warranty may be implied from the course of dealing between the parties. It is not necessary for me to go through all the cases which have been cited, but merely to refer to some of them, and which appear to me to establish a principle which will entitle the plaintiff to retain his verdict. The case of Gray v. Cox, has been relied on, both for the plaintiff and the defendants ; and Lord Chief Justice Abbott is reported to have said, at Nisi Prius, that, 1 Carr. & Payne, 186, "Where a commodity is sold for a particular purpose, it must be understood that it is reasonably fit and proper for that purpose." That is not to be considered as a mere |-j^„„ ,-. ohiter dictum, *or a hasty or accidental opinion, for, although L J the other judges appear to have differed from his Lordship after the case had been argued in Banc, yet, in delivering the judgment of the Court, he said : — " At the trial, it occurred to me that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. I am still strongly inclined to adhere to that opinion, but some of my learned brothers think differently. Supposing, however, my opinion to be correct, still the plain- tiffs have not declared on a warranty or promise of that nature, but upon a general warranty, and we are all of opinion that such a general war- ranty does not arise, nor can be implied in law from such a contract of sale as the present. For this reason we think, that the opinion expressed by me at Nisi Prius was incorrect :" — and the Court directed a new trial. There, too, the plaintiffs averred that the defendants undertook to furnish copper sheathing of a good, sound, substantial, and serviceable quality. No evidence was given of an express warranty, and the only proof was, that the plaintiffs ordered as certain quantity of sheathing, and paid a fair market price for it. But if the declaration in that case had been framed in the language of tie tenth count, it is probable that the gvidence ad- duced in support of it would have been deemed sufficient. In Fisher V. Samuda, I was counsel for the plaintiff, who had paid for the beer after an action had been brought against him for the price, and after he knew that it was of a bad quality, for he discovered it to be so, and unfit for the purpose intended, in July, which was two months after the delivery, and yet he gave no notice to the seller to take it back till the month of De- cember following ; and in the action brought against him to recover the price, he did not either in bar, or reduction of damages, object to the quality of the article, so that Lord Ellenborough said, that the plaintiff must be presumed to have assented to its being of a good quality, and have acc^uiesced in the due performance of the contract on the part of the defendants. That case, therefore, does not appear to me to have any bearing upon the present. In Laing v. Fidgeon, the rule applicable to this case is laid down in the strongest possible terms, and the authority of that case has never been questioned. No judge had more knowledge CONTRACT or SALE. 249 *of commercial law than my Lord Chief Justice Gibbs, and he f-tooc-i there concurred with the rest of the Court in holding, that al- L J though there was no express contract that the article should be merchant- able, it resulted from the whole transaction that the article was to be merchantable. In Gardiner v. Gray, Lord Ellenborough laid down the same rule, and said, " That a purchaser has a right to expect a saleable article, answering the description in the contract. Without any particu- lar warranty, this is an implied term in every such contract. Where there is no opportunity to inspect the commodity, the maxim of caveat emptor does not apply." That appears to me to be very important, as far as regards this case. But it has been said, that the plaintiff might have had an inspection of the copper, but it was merely of its exterior; and even the shipwright who applied it to the vessel had no means of knowing its intrinsic qualities at the time. It has been also submitted to us, by way of illustration, that, if a person order a suit of clothes from a tailor, and they are too small for him, the latter will not have fulfilled his contract; but that if he purchase them at a ready-made shop, the rule of caveat emptor applies; but, in Okell v. Smith, Mr. Justice Bay- ley said : "The plaintiff certainly is not entitled to recover the full price stipulated for by the contract, according to which he was bound to furnish pans capable of answering the purposes for which they were ordered." And in Bluett v. Osborne, Lord Ellenborough said : "A person who sells', impliedly warrants that the thing sold shall answer the purpose for which it is sold." By deciding that the plaintiff is entitled to retain his verdict, we shall support the interests of commerce, and if a manu- facturer of an article represent it to be fit for the purpose for which it is required, the law will imply a warranty on his part that it is so. Mr. Justice BuRROUGH. — I also think that there is no ground to dis- turb this verdict. The question is rather a question of fact than of law, viz., whether the contriict, as laid in the tenth count of the declaration, was proved at the trial. I am clearly of opiilion that it was. The wit- ness Fisher stated, that the plaintiff told him that he was in want of copper to sheathe a *vessel ; that the witness introduced him to r^joflfiT the defendants, and told them the purpose to which the copper L J was to be applied; when one of them said, "We will supply the plaintiff well." The allegation in the declaration, that the copper was made and manufactured by the defendants, is distinct and positive, and was not introduced by way of parenthesis, or under a videlicet. It formed part of the substance of the declaration, and if the plaintiff had not proved that the copper was manufactured by the defendants, he must have been nonsuited. The tenth count states in substance, that the defendants sold the plaintiff divers sheets of copper, for the purpose of sheathing a ship, which copper had been made and manufactured by them, and which they falsely and fraudulently warranted to be fit for that purpose. In the case of the King v. Boyall, 2 Burr. 832, an objection (among others) was taken after verdict, to an indictment against a parishioner for not sending out his carts to highway labour pursuant to an 'order from the overseers ; — that two persons named in the indictment were not suflSciently alleged to be surveyors of the high- 250 BOSS ON COMMERCIAL LAW, ways, as it was only averred that " they being surveyors, &c.," without stating by whom or when they were appointed : but Lord Mansfield held thut " being," was a sufficient averment. Here it was alleged that the copper was manufactured by the defendants, and therefore it was incum- bent on the plaintiff to prove that they were the manufacturers. They knew for what purpose the copper was wanted, and the whole of the tenth count was proved, except the words "falsely and fraudulently," and if the article furnished was not fit and proper for the purpose for which it was ordered, the allegation that they falsely warranted, was proved in substance ; for it was shown that the sheathing only lasted four or five months, whereas, it ought to have lasted as many years, and it was also proved that .there was a defect in the manufacture. As there- fore the copper was proved to have been bad, I think that this action was maintainable. The conversation that took place on the introduction of the plaintiff to the defendants, and which was proved by the witness Eisher, appears to me to amount to an express warranty on their part that the copper should be fit for the purpose for which it was required. r-ifocT-i That is sufficient to sustain the tenth count of the *declaration ; L J and the finding of the jury is conclusive to show that the decay in the copper was occasioned by some intrinsic defect in its quality. Mr. Justice G-Aselee. — As the points raised in this case have been so fully discussed, both by the Bar and the Bench, I shall merely make one or two observations, without going into the question, whether the warranty was an express or implied warranty. I fully agree with the doctrine laid down by Lord Chief Justice Abbott, in Gray v. Cox, that where goods are ordered and sold for a particular purpose, the law im- plies a warranty that they are fit for that purpose. That was taken for granted in Fisher v. Samuda. There it does not appear what the course of dealing was, but the plaintiff declared, that, in consideration that he had undertaken to buy of the defendant a certain quantity of beer, to be shipped for Gibraltar, the latter undertook to furnish and deliver good and sufficient beer for that purpose, and assigned for breach, that the beer was bad and wholly unfit to be shipped for Gibraltar. The plaintiff, however, allowed an action to be brought against him by the seller, to recover the price, in which action he did not object to the quality of the beer, but allowed the seller to recover a verdict for the full price agreed upon. But it has been said, that the verdict which the plaintiff has recovered in this case, cannot be sustained on either of the counts of the declaration ; as they do not show a sufficient contract of warranty. It appears to me that the tenth count is properly framed, and it cannot be shown on the face of the declaration whether a war- ranty be express or implied. That fact can only be ascertained by proof, unless the warranty be in writing. As to whether the plaintiff might have been nonsuited, if he had not proved the defendants to have been the manufacturers of the copper, I do not take upon myself to say; but it appears to me to be a sufficient allegation that they'did warrant the copper to be fit and proper for the purpose of sheathing a vessel. This is not like those cases where a promise must be in writing, and proved as laid. The declaration only states that the defendants agreed OONTRAOT OF SALE. 251 to sell the pLiintiff copper for the purpose of sheuthing a vessel; and in Read v. Nash, 1 Wils. 305, *it was held, that a promise to pay r*qfjQ-i damages by a third person, in case the plaintiff would withdraw L -^ his record, need not be in writing, as it was not within the statute of frauds ; and Lord Chief Justice Lee said, 1 Wils. 306, " The true dif- ference is between an original promise and a collateral promise; the first is out of the statute, the latter is not, when it is to pay the debt of another, which was already contracted." Here, although what took place between the parties at the time the contract was made, might not amount to an express warranty, yet enough was proved at the trial by the witness Fisher, from which a warranty may be implied ; and as the promise by the defendants to supply the plaintiff well, was a promise originally made to him, it need not have been in writing; and parol evi- dence was properly received in proof of such statement. This rule therefore must be — Discharged. WHERE A PARTY ORDERS A KNOWN ASCERTAINED ARTICLE, STATING THE PURPOSE TO WHICH HE INTENDS TO APPLY IT, THERE IS NO IM- PLIED WARRANTY ON THE PART OP THE SELLERS THAT THE ARTICLE IS SUITABLE POR THAT PURPOSE. CHANTER v. HOPKINS. Michaelmas Term, 1S38.— E. 4 M. & W. 399. Assumpsit. The declaration stated, that the defendant was indebted to the plaintiff in the sum of ;615, 15s., for the license, consent, and permission of the plaintiff before then granted by him to the defendant at his request, to erect, set up, and use, at and upon certain premises of the defendant, a certain patent invention, whereof the plaintiff was then the owner and proprietor, called Chanter's Smoke Consuming Furnace, and to use and apply the same for the use and benefit of the defendant ; which patent invention of the plaintiff the defendant had then erected, used, set up, and applied to his own "use and benefit, under and r«qfiQ-i by virtue of the said license and permission. There were also <- -I counts for goods sold, and for work and labour. Plea, non-assumpsit. At the trial before Grurney, B., at the London sittings after last Eastor Term, it appeared that the plaintiff was the proprietor of a patent for the invention of a furnace and stove, having an apparatus for the pur- pose of consuming its own smoke. The defendant, a brewer at St. Ives, Huntingdonshire, applied to him for one of his patent furnaces, by the following written order : — ■. " St Ives, 16th Sept. 1835. " Send me your patent hopper and apparatus, to fit up my brewing copper with your smoke-consuming furnace. P^itent right, £\b, 15s. ; iron work not to exceed £5, 5s. ; engineer's time fixing, 7s. Qd. per day. " Richard Hopkins, Vine Inn." 252 EOSS ON COMMERCIAL LAW. The furnace and apparatus were accordingly sent in the November following, and put up upon the defendant's premises under the superin- tendence of a workman of the plaintiff. On the plaintiff's applying for payment, the following letter was written to him by the defendant's attorney : — (I St. Ives, 2Bth Dec. 1835. « Sir, — By your contract with Mr. Hopkins, you were to do the work to his furnace in such a way, that there was to be a great saving of coals j that there was tS be no more smoke than from a common chimney; that considerable time was to be saved in the work of the brewery ; and that there was to be less labour at the furnace. Instead of these advantages, the new furnace consumes quite as many coals as the old one ; there is quite as much smoke ; there are several hours' more time consumed in brewing ; and there is a vast deal more labour at the furnace, and the oppper is very much injured. Under these circumstances, we are di- rected by Mr. Hopkins to apply to you for compensation ; and unless the same be made, and the old furnace restored, within seven days from this day, an action will be brought against you for the injury sus- tained." The firm of which the plaintiff was a member, replied as follows : — *« London, 30th Dec. 1835. L -I Gentlemen, — We are not a little surprised at the terms of your letter received yesterday in our Mr. Chanter's absence. On ex- amining our man, we find the furnace he erected worked extremely well when he was there, but he says the fireman has a determined opposition to it, and if such be the case, the very best of inventions cannot be made to answer. We have no difficulty of sending fifty witnesses into Court to prove all we ever engaged with Mr. Hopkins ; we therefore distinctly inform you, we shall. enforce the payment of our demand on Mr. Hop- kins ; and if Mr. Hopkins refuses payment, we presume you will wish, the document sent you. You will oblige us to say Mr. Hopkins's deter- mination ; ours you have without alteration." The defendant subsequently sent back the furnace to the plaintiff's premises in London. The plaintiff proved that his patent furnace was in much use, and was an article well known in the market ; and called several witnesses of different trades, who stated that they had used the apparatus to much advantage, and that it consumed a great portion of its smoke. On the other hand, the defendant proved that it had not been of any service on his premises ; and he offered evidence of conver- sations with the plaintiff before the order was given, for the purpose of showing that the plaintiff knew the apparatus was to be used in a brewery, for which it was alleged that it was not suitable. No fraud, however, was imputed to the plaintiff. This evidence was objected to, but the learned Judge received it, subject to the opinion of the Court as to its admissibility. It was contended for the defendant, that under the cir- cumstances, there was an implied warranty on the part of the plaintiff, that a smoke-consunyng furnace should be furnished to the defendant which should be useful in a brewery. The learned Judge reserved leave to the defendant to enter a verdict for him, if the Court should be of CONTRACT OF SALE. 253 that opinion : and, under his direction, a verdict was found for the plain- tiff, damages £15, 15s.; the jury stating also, in answer to a question from the learned Judge, that in their opinion the patent furnace was useless to the defendant as a brewer. *Byles having obtained a rule nisi to enter a verdict for the r^o'j-i-i defendant, pursuant to the leave reserved, or for a new trial, or L ^ to reduce the damages ; Earle and Saunders now appeared to show cause ; but the Court called upon , Byles to support the rule The written order itself, which was ac- cepted by plaintiff, imports an implied warranty that the furnace sup- plied to the defendant shall consume its own smoke. It is there desig- nated " Chanter Smoke-Consuming Furnace," and the plaintiff is informed that the defendant is about to use it as a brewer. The circum- stances under which the written contract was made, as they appear from the correspondence and the cpnversations with the plaintiff, were also evidence to apply the contract. They showed that the plaintiff knew the apparatus was to be used for a brewery, and were admissible in evi- dence to put a sense upon the written contract, and to show that it im- ported an implied warranty that the furnace should consume the smoke in a brewery. [Paeke, B. — The whole turns on the construction of the written order ; you cannot import any addition into it which is not in writing ; and you do not impute fraud.] The written order itself, then, contains an implied warranty that the apparatus, if properly used, shall be fit for the purpose of a brewery. Jones v. Bright, 5 Bing. 533 ; 3 M. & P. 155, is an authority strongly in favour of the defendant. There the plaintiff purchased from the warehouse of the defendant, the manu- facturer) copper-sheathing for a ship ; and the defendant, who knew the purpose for which it was wanted, said, « I will supply you well." It was held that this was an implied warranty that the copper was fit for that purpose. Best, C. J., says — " In a contract of this kind it is not necessary that the seller should say, < I warrant ;' it is enough if he says that the article which he sells is fit for a particular purpose. But I wish to put the case on a broad principle. If a man sells an article, he thereby warrants that it is merchantable — that it is fit for some purpose. If he sells it for a particular purpose, he thereby warrants it fit for that purpose." In the previous case of Gray v. *Cox, 4 B. & Cr. 108 ; ^^0791 6 D. & R. 200; 1 C. & P. 184, there cited, Abbott, C. J., had L **' -I laid down the same doctrine at Nisi Prius, and it undoubtedly appears that his opinion was not supported by the rest of the Court ; but the case was decided on a different ground, viz., that an allegation of a war- ranty that the copper purchased should be "good, sound, substantial, and serviceable copper," was not proved by merely showing a purchase of copper-sheathing at the ordinary market price. The case of Street v. Blay, 2 B. & Adol. 456, is even stronger than that of Jones v. Bright, since it not only assumes that the purchaser may, under such circumstan- ces, insist on a breach of warranty, but lays it down that, if he have no opportunity of ascertaining the quality of the chattel before he orders it, he may, if it do not answer the warranty, rescind the contract and re- Febrpart, 1855. — 17 254 ROSS ON COMMERCIAL LAW. turn the chattel, after having kept, it a reasonable time for the purpose' of trial. Lord Tenterden says, — " It is to be observed, that although the vendee of a specific chattel, delivered with a warranty, may not have a right to return it, the same reason does not apply to cases of executory contracts, where an article, for instance, is ordered from a manufacturer, who contracts that it shall be of a certain quality, or fit for a certain purpose, and the article sent is such as is never completely accepted by the party ordering it. In this and similar cases, the latter may return it as soon as he discovers the defect, provided he has done nothing more in the meantime than was necessary to give it a fair trial." This was an executory contract of the kind here spoken of ; it was not the case of a specific chattel, definitively ascertained and appropriated to the buyer. [Parke, B Here the written order defines the thing that is wanted, viz., a smoke-consuming furnace according to the plaintiff's patent — if that article is supplied, the order is complied with. The difference be- tween this case and that of Jones v. Bright, is, that here the subject of the contract is defined, and defined accurately, by the buyer. The object for which he wanted it is immaterial j that is his own affair, the article being accurately defined independently of that- object.] Suppose the order were for a horse to draw the buyer's carriage, would there not be an implied warranty that the horse should be fib for that purpose? r-^q'-q-i [Parke, B. — That is not the *same case as this : there the seller L -1 knows the object for which the horse is wanted, and no particu- lar horse is specified : but suppose the buyer said, " send that bay horse in the third stall of your stable to draw my carriage," then if it did not draw the carriage, it would be the buyer's concern.] At all events the evidence was admissible in reduction of damages; Street v. Blay. [Parke, B I do not see how you can reduce the damages ; the article ordered is supplied, and the price of the patent right is fixed by the defendant himself at fifteen guineas.] Lord Abinger, C. B. — I think the rule must be discharged. A good deal of confusion has arisen in many of the cases on this subject, from the unfortunate use made of the word " warranty." Two things have been confounded together. A warranty is an express or implied statement of something which the party undertakes shall be part of a contract ; and though part of the contract, yet collateral to the express object of it. But in many of the cases, some of which have been referred to, the circumstance of a party selling a particular thing .by its proper description, has been called a warranty ; and the breach of such contract, a breach of warranty ; but it would be better to distinguish such cases as a non-compliance with, a contract which a party has engaged to fulfil; as if a man offers to buy peas of another, and he sends him beang, he does not perform his contract; but that is not a warranty ; there is no warranty that he should sell him pease ; the con- tract is to sell pease, and if he sends him anything else in their stead, it is a non-performance of it. So if a man were to order copper for sheathing ships — that is a particular copper, prepared in a particular manner ; if the seller sends him a different sort, in that case he does not comply with the contract : and though this may hav6 been consi- CONTRACT OP SALE. 255 dered a warranty, and may have been ranged under the class of cases relating to warranties, yet it is not properly so. Now, in the present case, the question is. Whether or no the order has not been complied with in its terms ? What is the order ? It is an order for one of those engines of which the plaintiff was known to be the patentee ; he was not obliged to know the object or use to which the *defendant rjf.o>TA-i meant to apply it ; and it is admitted there is no fraud. If, L J when the plaintiff received such an order, he had known it could not be so applied, and felt that the defendant was under somymisapprehension on the subject, and that he was buying a thing on the supposition that he could apply it to that use, when the plaintiff very well knew he could not, in that case it might affect the contract on the ground of the sup- pression of a material fact; that might be a qu'estion for the jury. Or if the terms of the contract were proposed by the plaintiff himself, such as, " I will send you one of my smoke-consuming furnaces, which shall suit your brewery ;" in such case that would be a warranty that it should suit a brewery. But in this case no fraud whatever is suggested ; and the case is that of an order for the purchase of a specific chattel, which the buyer himself describes, believing, indeed, that it will answer a particular purpose to which he means to put it ; but if it does not, he is not the less on that account bound to pay for it. The seller does not know it will not suit his purpose, and the contract is complied with in its terms. It appears to me that this is the ordinary case of a man who has had the misfortune to order a particular chattel, on the suppo- sition that it will answer a particular purpose, but who finds it will not. I think there is no ground at all, therefore, to disturb the verdict. Parke, B I also think there is no ground in this case for disturb- ing the verdict. The rule of law is clear, that you cannot add to or diminish a written contract by anything in parol which may have occurred between the parties. If indeed there has been any fraudulent representation, the buyer may relieve himself from the contract on the ground of fraud; but here the defendant does not pretend to impute fraud to the plaintiff. He cannot then be allowed to give parol evidence as to any warranty not contained in the agreement itself; and the ques- tion is therefore reduced to the construction of the words of the agree- ment, as contained in the order. Now I agree with the authority- which Mr. Byles has referred to, of Jones v. Bright, that if an order is given for an undescribed and unascertained thing, stated to be for a- particular purpose, which the manufacturer supplies, he cannot sue for the price, unless it does *answer the purpose for which it was r^on^^-, supplied. The case may be illustrated by the example which L J has been already referred to. Suppose a party offered to sell me a horse of such a description as would suit my carriage ; he could not fix on me a liability to pay for it, unless it were a horse fit for the purpose it was wanted for ; but if I describe it as a particular bay horse, in that case the contract is performed by his sending that horse ; and it appears to me that the present is a similar case. The order is — " Send me your patent hopper and apparatus, to fit up my brewing copper with your smoke-consuming furnace." The purchase is of a defined and welK 256 KOSS ON OOMMEROIAIi LAW. known machine. The plaintiflF has performed his part of the contract by sending that machine; and it is the defendant's concern whether it answers the purpose for which he wanted to use it or not. As I read the contract, all the plaintiff has to do is to send his patent machine, and whether it answers the purpose of the defendant or not, with that the plaintiff has nothing to do ; he has furnished the machine contracted for, and he is entitled on that contract to recover the stipulated price, namely, fifteen guineas. On these ground, it appears to me that the verdict was right, and that the rule ought to be discharged. GrUKNEY, B., concurred. Rule discharged. WHERE A SELLER IS INFORMED BY THE PURCHASER OP THE PUR- POSE EOR WHICH AN ARTICLE IS WANTED, AND THE PURCHASER RELIES UPON THE SKILL AND JUDGMENT OF THE SELLER IN FUR- NISHING AN ARTICLE SUITABLE FOR THAT PURPOSE, THERE IS AN IMPLIED WARRANTY ON THE PART OF THE SELLER THAT THE ARTICLE IS REASONABLY PIT AND PROPER FOR THAT PURPOSE. BROWN V. EDGINGTON. June 30, 1841.— E. 2 S. N. R. 496. This was an action on the case for an alleged breach of warranty on the sale of a rope. r*^76T "^^^ declaration stated that the plaintiff, before and at the L J *time of the committing of the grievances by the defendant thereinafter mentioned, carried on the trade and business of a wine and spirit merchant, at a certain warehouse and premises, with the appur- tenances, situate in Lawrence Pountney Lane, in the city of London, and during all the time aforesaid used and employed a certain- crane, with ropes and appurtenances thereto belonging, in and at the said warehouse and premises, in the way of his trade and business, for the purpose of hauling up, letting down, suspending, and moving in and out of and about the said warehouse and premises, pipes, puncheons, and other heavy casks of wine and spirits, as occasion might require; and there- upon, to wit, on the 5th September, 1837, the defendant, having notice of the premises, and being a dealer in ropes, amongst other things, the plainti|r then bargained and agreed with the defendant to buy of him (amongst other things) in the way of the defendant's business, at and for a reasonable price to be therefor paid by him, a rope, to be made by the defendant for the plaintiff, to be used in the said crane and appur- tenances in and at the said warehouse and premises in the way of the said wine and spirit trade and business, for the purpose of hauling up, letting down, suspending, and moving in, out of, and about the said warehouse and premises, pipes, puncheons, and other heavy casks of wine. and spirits, as aforesaid ; and retained the defendant to put up, splice, Sx, and adjust the same rope, ready for use, in the said crane as aforesaid, CONTRACT OF SALE. 257 for reward to the defendant in that behalf; and the defendant afterwards, to wit, on the day and year aforesaid, in pretended fulfilment of the said agreemgnt, by falsely and fraudulently warranting and representing to the plaintiff that a certain rope produced by the defendant was made in pur- suance of the said agreement, and was good and fit for the purpose of being used in the said crane and appurtenances in and at the said ware- house and premises, in the way of the said trade and business, for the purposes in that behalf aforesaid, sold and delivered the said last- mentioned rope to the plaintiff for the said price, and put up, spliced, fixed, and adjusted the same for use in the said crane as aforesaid, for reward as aforesaid, which said price and reward were afterwards, to wit, on the 30th December, in the year aforesaid, paid by him to the defendant for the same; *whereas in truth and in fact the last-mentioned ^,0771 rope, at the time of the said warratity, representation, and L J sale, was not good or fit for the purpose or use in that behalf afore- said, but was then very bad, unfit, and improper for that purpose or use, and was made of old, bad, and improper materials, and badly and insuf- ficiently made ; of all which premises, the defendant, at the time of the said sale, warranty, and representation, had knowledge and notice : And the plaintiff in fact said, that the defendant, by means of the premises, on the day and year first aforesaid, falsely and fraudulently, and for the sake of unjust gain, deceived the plaintiff on the sale of the said rope as aforesaid; that he, confiding in the said warranty and representation of the defendant, did, from, &c., till and at the time of the occurrence of the loss and damage therein mentioned, use and employ the said crane, rope, and appurtenances in and at the said warehouse and premi- ses in the way of the said trade and business, for the said purpose of hauling up, letting down, suspending, and moving in and out of and about the said warehouse and premises, pipes, puncheons, and other heavy casks of wine and spirits as occasion required, which the plaintiff but for the representation and warranty aforesaid would not have done; and that, while the plaintiff so carried on the said business as aforesaid, to wit, Dn the 20th February, 1839, while the plaintiff, confiding in the said rep-esentation and warranty made by the defendant, and believing the sane to be true, ■waaJby his servants using the said rope so sold as aforesaid in the said crane and appurtenances at the said warehouse and premisis, in the way of the said trade and business, in hauling up, sus- pending, and moving out of the said warehouse and premises a certain pipe 0;' wine of the plaintiff, of great value, to wit, of the value of £100 the said last-mentioned rope, by reason of its being so bad, unfit, and inproper for that purpose as aforesaid, and made of such old, bad, and improper materials, and so badly and insufficiently made as afore- said, ihen gave way and broke, and thereby the said pipe of wine fell to the ground, and the said pipe was broken, shattered, staved in, and spoilt, and the wine in the said pipe was spilt, scattered, spoilt, and poured out upon the ground, and thereby became and was wholly lost to the phintiff; and by reason of the premises the 'said rope had r*q7Q-| becomB and was of no use or value to the plaintiff, and the L J plaintff had also been obliged to lay out and had expended £10 in pur- 258 ROSS ON COMMERCIAL LAW. chasing and putting up a new rope for the said crane in lieu of the said bad rope sold by the defendant as aforesaid ; and the plaintiff had been and was by means of the premises otherwise greatly injured and damni- fied ; to the plaintifiF's damage of £100, &c. Plea — Not guilty. The cause was tried before Maule, J., at the sittings in London after the last Term, The facts that appeared in evidence were as follow : — The plaintiff was a wine and spirit merchant; carrying on business in Lawrence Pountney Lane. The defendant called himself a manufac- turer of tents and marquees, rick-cloths, tarpaulins, ropes, &c. On the 30th August, 1837, a clerk in the employ of the plaintiff called at the defendant's shop in Duke street, Smithfield, and ordered a new crane rope, to be fixed at the premises of the plaintiff. The defendant's fore- man went to the premises for the purpose of ascertaining the quality and dimensions of the rope required, was informed of the purposes for which it was to be used, and said that a rope must be made. The defendant, not being in fact a rope-maker, sent the order to one Dunn, a rope-maker at Stepney, who, however, did not. make the ropf himself, but procured it to be made by one Skinner. The rope was fixed to the plaintiff's crane by a servant of the defendant on the 5th September, 1837. On the 20th February, 1839, wiilst the plaintiff's servants were in the act of removing a pipe of port wine from the warehous^ to a cart by means of the crane, the. rope broke and the cask was pricipitated into the street and stove in, and the wine wholly lost. Therelwas con- flicting evidence as to the quality of the rope — the plaintiff !s, Witnesses describing it as having been badly manufactured, and of inferior mate- rial ; the defendant's witnesses, on the other hand, averring Ihat the material was of the best, and the workmanship unexceptionable. The defendant also attempted to show tha^ the breaking of the rope was occa- sioned by the faulty construction of the crane : but it appeared that a former rope had stood the wear of twelve years. I P3791 '^^^ contention on the part of the plaintiff was, that (iie,*de- L J fendant, having represented himself to be the maker of the rope, and knowing the purpose for which it was required, impliedly warranted that the rope furnished was reasonably fit and prtber for that purpose : and Jones v. Bright, 3 M. & P. 155, 5 Bing. 5I3, was relied on. i For the defendant it was submitted, that, there being no evidmce of an express warranty, and the defendant not being the maker of ths rope, he could not be liable for any latent defect. Gray v. Cox, 6 D. &' K. 200, 4 B. & 0. 108 ; but that it was incumbent on the plaintiff to show that the defendant knew at the time that the rope was unfit. The learned Judge left it to the jury to say whether or not th rope was reasonably fit for the purpose for which to the defendant's kno\iedge (the knowledge of the foreman being for this purpose the knowlefge of the master) it was furnished, and, if unfit, whether the defendantfknew that it was so. The jury returned a verdict for the plaintiff, damages MO, acimpa- Dying it with a negation of any "guilty knowledge" in the defeidant: CONTKAOT OF SALE. 259 and leave was reserved to the defendant to move to enter a nonsuit if the Court should be of opinion that evidence of the scienter was neces- sary to entitle the plaintiff to maintain the action. Channdl, Serjeant, in Hilary Term, 1840, obtained a rule nisi accord- ingly. — Conceding that the scienter need not be proved where there is an express warranty — Williamson v. Allison, 2 East, 446 — he submit- ted that the plaintiff, failing to prove an express warranty, and being driven to rely on the alleged deceit, was bound to prove the defendant's knowledge of the unfitness of the article for the purpose for which he supplied it; and that, though a warranty that the article is reasonably fit for the purpose for which it is designed may be implied where the vendor is himself the manufacturer, as in Jones v. Bright, it is other- wise where he is a mere salesman. Bompas, Serjeant, and Grai/, now showed cause The declaration alleges both a fraud and a warranty; but if the latter be proved, the scienter need not be ; Williamson v. Allison, 2 East, 446. It is admit- ted that where the vendor is himself the ^manufacturer of the r^,qcm article, a warranty is implied : but it is said that otherwise it is L J not. The latter authorities, however, show that there is no foundation for this supposed distinction. In Gray v. Cox, 4 B. & C. 108, 6 D. & R. 200, 1 C. & P. 187, where the plaintiffs declared in assumpsit on an implied warranty of copper-sheathing, the impression of Lord Tenterden was, that " if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such pur- pose." It is true the other Judges, or some of them, entertained a dif- ferent opinion ; but the ground of this difference does not appear, though probably it was that the defendants were not the manufacturers of the copper. That case is no authority for the defendant. It may be con- ceded, that if the plaintiff had gone to the defendant's shop, and himself selected the rope, no implied warranty could have arisen. But here the plaintiff himself exercised no judgment: the defendant, knowing the purpose for which the rope was required, undertook to furnish it, and thus impliedly warranted that it should be a rope fit for that purpose; he therefore stands in precisely the same situation as if he had been the actual manufacturer of it. If this had been an action brought for the price of the rope, the vendor could only recover on the footing of the article being fit for the purpose; Street v. Blay, 2 B. & Ad. 456. Lairig v. Fidgeon, 6 Taunt. 108, and Bluett v. Osborne, 1 Stark. 384, are also authorities to show that a person who sells manufactured goods, impli- edly warrants that they shall answer the purpose for which they are sold, x Best, C. J., in Jones v. Bright, 3 M. & P. 155, 5 Bing. 533, likens the bowsprit in Bluett v. Osborne to the case of a horse, on the sale of which, in the absence of an express warranty, the seller is not responsi- ble for latent defects. Jones v. Bright is directly in point, and if that case be law, it is decisive of the present. There the defendants sup- plied copper-sheathing for the plaintiff's vessel, which turned out to be useless in a short time, owing, as the jury found, to an inherent defect in its quality; and it was held that the plaintiff was enti- tled to recover damages in an action on the case in the nature 260 ROSS ON COMMERCIAL LAW. of deceit, although no fraud was imputed to the defendant. It is true that some of the Judges in that case Jay some stress upon the r*Qsn *f^<''' "^ ^^^ defendants being the manufacturers of the sheath- L J ing; but Best, C. J., does not. Chanter v. Hopkins, 4 M. & W. 399, will probably be relied on for the defendant : but it will be found to differ essentially. There the defendant sent to the plaintiflF, the patentee of an invention known as " Chanter's smoke-consuming fur- nace," the following written order : — " Send me your patent hopper and apparatus, to fit up my brewing copper with your smoke-consuming fur- nace : patent right, £15, 15s. ; iron work not to exceed s65, 5s. j engi- neer's time fixing, 7s. 6d. per day." The plaintifi' accordingly put up on the defendant's premises one of his patent furnaces, but it was found not to be of any use for the purposes of a brewery, and was returned to the plaintiff: and it was held (no fraud being imputed to the plaintiff) there was not an implied warranty on his part that the furnace supplied should be fit for the purposes of a brewery ; but that the defendant having defined by the order the particular machine to be supplied, the plaintiff performed his part of the contract by supplying that m'achine, and was entitled to recover the whole £15, 15s., the price of the patent right. In the course of the argument Parke, B., observed : — " The difference be- tween this case and that of Jones v. Bright is, that here the subject of the contract is defined, and defined accurately, by the buyer. The 6b- ject for which he wanted it is immaterial." And in delivering his judg- ment, the same learned Baron says; — " I agree with the authority which Mr. Byles has referred to, of Jones v. Bright, that if an order is given for an undescribed and unascertained thing, stated to be for a particular purpose, which the manufacturer supplies, he cannot sue for the price, unless it does answer the purpose for which it was supplied." But the example he gives in illustration shows that this doctrine does not apply exclusively to the case of a sale by the manufacturer. " Sup- pose," he says, "a party offered to sell me a horse of such a description as would suit my carriage ; he could not (fix on me a liability to pay for it, unless it were a horse fit for the purpose it was wanted for : but if I describe it as a particular bay horse, in that case the contract is performed by his sending that- horse." Parkinson v. Lee, 2 East, 314, was the case of a sale by sample, the only warranty being that the bulk answered P3821 *^^^ sample, which. the jury finding it did, it was held that the L -1 buyer was without remedy, though the hops were unmerchantable. There the rule caveat emptor properly applied. Here the defendant may be taken to have been the manufacturer of the rope. Talfourd and Ghannell, Serjeants, in support of the rule. — Undoubt- edly the scienter is immaterial where there is a warranty, either express or implied. The position established in Jones v. Bright — that a warranty is to be implied where the seller of the goods is the manufacturer of them, and knows the purpose for which they are to be used — may also be con- ceded. But that case affords no authority for applying the doctrine to a sale of goods by the manufacturer without such knowledge, or by one who, having such knowledge, is not the manufacturer. Here the de- fendant was not the manufacturcjr of the rope : he is not so charged in CONTRACT OF SALE. 261 the declaration, as were the defendants in Jones v. Bright. He might have purchased the rope ready-made from one having a larger stock than himself. Could he in that case have been charged as the maker of it? It is quite clear that Best, C. J., in Jones v. Bright, never intended to extend the doctrine of implied warranty beyond the manufacturer : this appears from the authorities he cites as well as the language he uses : professing to put his decision upon a " broad principle," he says : — " I am clearly of opinion that, if a man manufactures, and sells the article he makes, he thereby warrants that it is merchantable." And there is good reason for the distinction ; for the manufacturer must be supposed to be more intimately acquainted with the fabric ; whereas the vendor has generally no means of discovering a defect that are not equally accessible to the purchaser. If the defendant be liable here, would he not be equally liable — for somebody must be — in case the pipe of wine had by the breaking of the rope fallen upon and injured a person passing? [TiN- DAL, C. J — That might possibly be too remote : here the damage is proximate. Bosanquet, J., referred to Langridge v. Levy, 2 M. & Welsby, 519.]^ In that case the injury occurred to one within the de- fendant's contemplation at the time be sold the gun. ' *Tindal, C. J. — If a man purchase goods of a tradesman r^fooq-i without in any way relying upon the skill and judgment of the L J vendor, the latter is not responsible for their turning out contrary to his expectation : but if the tradesman be informed, at the time the order is given, of the purpose for which the article is wanted, the buyer relying upon the seller's judgment, the latter impliedly warrants that the thing furnished shall be reasonably fit and proper for the purpose for which it is required. This appears tfr me to be a distinction that is founded in good sense and reason, and sustained by authority. The present case is free from all doubt or difficulty. The facts are these : — The plaintiff sent to the defendant's shop for a crane-rope. Tho defendant's foreman went to the plaintiff's premises to take the necessary measurement, saw the crane, and was told that the rope was required for the purpose of raising pipes of wine. A rope was in due course made, and fixed by a servant of the defendant. On the part of the defendant, it has been sub- mitted that no implied warranty can arise out of this state of facts, be- cause the defendant was not the manufacturer of the rope. I must con- fess I do not see any very good reason for making a distinction between the manufacturer and the merchant or salesman, where the party has knowledge of the purpose for which the article is ordered. But at all events, as between the parties in this case, I think the defendant must be taken to be the manufacturer. The evidence is that he sent the order to a rope-maker named Dunn. Now I am at a loss to see what difference it can make whether the rope was made on the defendant's own premises and by his own hired workmen, or by some one else for him. It appears to me that the present case is much stronger in its circumstances than Jones V. Bright; the attention of the defendant was more distinctly called to the purpose to which the article was to be applied, and his judgment more expressly called into exercise in the matter than in that case. I am not sensible that this decision will operate any great hardship on the 262 ROSS ON COMMERCIAL LAW. defendant. It was his own fault that he did not communicate to Dunn the purpose for which he had undertaken to furnish the rope. Had he done so, he might have had a remedy over against him. I think the rul6 for entering a nonsuit must be discharged. _ „g ... *BosANQUET, J. — I am-also of opinion that the evidence given L J at the trial supports the warranty stated in the declaration. It appeared that the plaintiff, being in want of a rope for his crane, applied to the defendant, a dealer in articles of that description, to supply a rope for that purpose. The defendant's foreman went to the plaintiff's pre- mises to take the measure, saw the purpose for which the rope was re- quired, undertook to get a rope made, and afterwards sent a man to fix it. The defendant, was thus expressly informed of the nature of the work to be done with the rope, and the degree of strength that would be requisite. The case differs materially from that of a man who goes into a shop and exercises his own judgment in the selection of an article; and appears ,to me to be much stronger in its circumstanpes than any of those that have been referred to. In Gray v. Cox, 4 B. & 0. 108, 6 D. & R. 200, the plaintiff went to the warehouse of the defendants, who were copper merchants, but not manufacturers, and himself selected the sheathing : and the question was, whether or not the circumstance of its being sold as copper-sheathing, with knowledge on the part of the de- fendants that it was to be applied for th^ purpose of coppering the bottom of the plaintiff's vessel, created an implied warranty that it was fit and proper for that purpose. At the trial, Abbott, C. J., ruled, that " where a commodity is sold for a particular/purpose, it must be understood that it is reasonably fit and proper for that purpose :" 1 C. & P. 186. And in delivering the judgment of the Court, his Lordship said : — " At the trial it occurred to me, that if a person sold a commodity for a particular purpose, he must be understood to warrant it reasonably fit and proper for such purpose. I am still strongly inclined to adhere to that opinion but some of my learned brothers think differently." Upon what grounds . this difference of opinion rested does not appear. The rule for a new trial was made absolute on another point. In Jones v. Bright, 3 M. & P. 155, 5 Bing. 533, it was held, that where a person manufactures an article, and sells it for a particular purpose, the law implies a warranty that it is fit and proper for that purpose. There the sheathing was selected by the plaintiff's shipwright : but the defendants knew the purpose to r*3851 ^^^"'^ ^* '^^^ *° ^^ applied. , *In all respects save one, that case L J is much less strong in its circumstances than the' present. The plaintiff here did not go to the defendant's shop and exercise his own' judgment in the selection of a rope. But the defendant sent his fore- man to receive the order — that a rope not then in existence, should be supplied for a particular purpose. In the result it turned out to be wholly unfit for the purpose. The defendant, therefore, has failed in the performance of that which he undertook to do. It appears that the de- fendant did not actually manufacture the rope. But as between these parties, I think he may be treated as the manufacturer, without laying any stress upon the invoice, in which the plaintiff described himself as a manufacturer of ropeS, among other articles. Upon the whole I am CONTRACT OF SALE. 263 clearly of opinion that the evidence BuflBciently establishes an implied warranty on the part of the defendant to supply a rope that should be fit and proper for the purpose for which it was ordered. Erskine, J. — I am of the same opinion. The question is whether or not the rope in this case was supplied under a contract amounting to a warranty that it was reasonably fit and proper for the purpose for which it was sold. At the time the order was given, the rope was not in exist- ence : and the defendant was made acquainted with the particular pur- pose for which it was required. I take it to be clear, that when a man expressly undertakes to make or to cause to be made an article for pur- poses that are explained to him, he undertakes and' warrants that it shall be reasonably fit for the purpose. If the purchaser himself selects the article, with full opportunity of examining it, the mere fact that the seller knows the purpose for which it is to be used will not render him liable to an action of this sort ; for in that case he is not called upon to exer- cise his skill an^ judgment in the matter. In the present case, however, the defendant's foreman not only was told the purpose for which the rope was wanted, but he undertook to make it for that purpose. It has been contended that there can be no implied warranty unless the seller is also the manufacturer. It is true, that Jones v. Bright, the seller of the copper-sheathing was also the manufacturer : and the Court lay some ♦stress upon that fact in giving judgment. But it is not because i-^qofiT the Court there placed some reliance upon the circumstance of L J the defendants being the manufacturers that we are to assume that they thought it indispensable. It appears to me, that to render him lia- ble in this form of action, it is not necessary that the seller should be also the manufacturer, provided he knows the purpose for which the article is required, and undertakes to furnish it for that purpose. Hav- ing so undertaken, he in my judgment impliedly warrants that it shall be reasonably fit and proper for the purpose. The defendant had ample opportunity to explain to the party who made the rope the purpose for which it was to be used : and therefore he cannot complain if by his omission to do so he has lost his remedy against him. Maole, J. — I am also of opinion that this rule should be discharged. The question is whether or not the material allegations in the declaration are supported by the evidence. The scienter was not proved : we must therefore see whether or not the evidence sustained the declaration inde- pendently of the scienter. I think the efi'eCt of the party selling being himself the manufacturer is not very distinctly put in some of the cases. The way in which Lord Tenterden seems to put it in Gray v. Cox, is, not that the defendant's liability depended upon whether he was the manufacturer or not, but upon the fact of his knowledge of the purpose for which the goods are sold. It may be admitted here that the defend- ant would have sufficiently performed his contract by delivering a rope not manufactured by himself But I think it may be assumed that he was the manufacturer. His foreman went to the premises to measure for the rope, and was told the purpose for which it was wanted, viz., to raise pipes of wine, and said it must be made for the purpose. Part of the contract was that the defendant should fix the rope to the crane. 264 BOSS ON COMMERCIAL LAW. Suppose the accident had happened in consequence of the rope having been improperly spliced, could there be a doubt that the defendant would be liable ? I do not see why he should be less liable for a breakage of the rope from defects in the materials of which it was made. That which the defendant undertook to furnish, was a rope to fit a certain r*^87n ''''^°^' ^^^ capable of raising pipes *of wine : and the jury L J found that the rope furnished was unfit for that purpose. The defendant was clearly guilty of a breach of the implied warranty stated in the declaration. Bule discharged. EVERT AFFIRMATION MADE BT A SELLER AT THE TIME OF SALE IS A WARRANTY, PROVIDED IT APPEAR TO HAVE BEEN SO I^fTENDEII, AND A FALSE REPRESENTATION MADE BY ONE 'V^TH INTENT TO DECEIVE, WHEREBY A PARTY SUFFERS DAMAGE, FURNISHES GROUND OF ACTION AGAINST THE PARTY MAKING SUCH REPRESENTATION, AND THAT EVEN ALTHOUGH HE IS NOT BENEFITED BY THE DE- CEIT PRACTISED, AND IS NOT INTERESTED IN THE SUBJECT-MATTEE IN RELATION TO WHICH SUCH REPRESENTATION IS MADE; THE PRINCIPLE OP LAW BEING THAT FJSaUD WITHOUT DAMAGE OR DAM- AGE WITHOUT FRAUD WILL NOT FOUND AN ACTION, BUT THAT WHERE BOTH CONCUR AN ACTION WILL LIE. I.— PASLEY V. FEEBMAN. Jan. 31, iTSg.— E. 3 T. R. 51. This was an action in the nature of a writ of deceit ; to which the defendant pleaded the general issue. And after a verdict for the plain- tiffs on the third count, a motion was made in arrest of judgment. The third*count was as follows: — " And whereas also the said Joseph Freeman, afterwards, to wit, on the 21st day of February in the year of our Lord, 1787, at London aforesaid, in the parish and ward aforesaid, further intending to deceive and defraud the said John Pasley and Ed- ward, did wrongfully and deceitfully encourage and persuade the said John Pasley and Edward, to sell and deliver to the said John and Chris- topher Faloh divers other goods, wares, and merchandises, to wit, 16 other bags of cochineal of great value, to wit, of the value of £2634, 16s. Id., upon trust and credit; and did for that purpose then and there falsely, deceitfully, and fraudulently, assert and affirm to the said John Pasley and Edward, that the said John Christopher then and there was a person safely to be trusted, and given credit to in that respect ; and did thereby falsely, fraudulently, and deceitfully, cause and procure the said John Pasley and Edward to sell and deliver the said last-men- r*3881 '^""^'^ goods, wares and merchandises, upon trust and *credit, to L J the said Christopher ; and, in fact, they the said John Pasley and Edward, confiding in and giving credit to the said last-mentioned assertion and affirmation of the said Joseph, and believing the same to CONTEAOT OF SALE. 265 be true, and not knowing the contrary thereof, did afterwards, to wit, on the 28lh day of February, in the year of our Lord, 1787, at London aforesaid, in the parish and ward aforesaid, sell and deliver the said last- mentioned goods, wares, and merchandises, upon trust and credit, to the said John Christopher; whereas in truth and in fact, at the time of the said Joseph's making his said last-mentioned assertion and affirmation, the safd John Christopher was not then and there a person safely to be trusted and given credit to in that respect, and the said Joseph well knew the same, to wit, at London aforesaid, in the parish and ward aforesaid. And the said John Pasley and Edward further say, that the said John Christopher hath not, nor hath any other person on his behalf, paid to the said John Pasley and Edward, or either of them, the said sum of £2634, 16». Id. last mentioned, or any part thereof, for the said last- mentioned goods, wares, and merchandises ; but, on the contrary, the said John Christopher then was, and still is, wholly unable to pay the said sum of money last mentioned, or any part thereof, to the said John Pasley and Edward, to wit, at London aforesaid, in the parish and ward aforesaid ; and the said John Pasley and Edward aver that the said Jo- seph falsely and fraudulently deceived them in this, that at the time of bis making his said last-mentioned assertion and affirmation, the said John Christopher was not a person safely to be trusted or given credit to in that respect as aforesaid, and the said Joseph then well knew the same, to wit, at London aforesaid, in the parish and ward aforesaid j by reason of which said last-mentioned false, fraudulent, and deceitful asser- tion and affirmation of the said Joseph, the said John Pasley and Ed- ward have been deceived and imposed upon, and have wholly lost the said last-mentioned goods, wares, and merchandises, and the value thereof, to wit, at London aforesaid in the parish and ward aforesaid ; to the damage," &o. Application was first made for a new trial, which, after argument, was refused: and then this motion in arrest of judgment. *Wood p^„2q-. argued for the plaintiffs, and Eussell for the defendant, in the L J last Term : but as the Court went so fully into this subject in giving their opinions, it is unnecessary to give the arguments at the bar. The Court took time to consider of this matter, and now delivered tlteir opinions seriatim. XjtROSe, J. — Upon the face of this count in the declaration, no privity of contract is stated between the parties. No consideration arises to the defendant; and he is in no situation in which the law considers hjm in any trust, or in which it demands from him any account of the credit of Falch. He appears not to be interested in any transaction between the plaintiffs and Falch, nor to have colluded with them; but he knowingly asserted a falsehood, by saying that Falch might be safely entrusted with the goods, and given credit to, for the purpose of inducing the plaintiffs to trust him with them, by which the plaintiffs lost the value of the goods. Then this is an action against the defendant for making a false affirmation, or telling a lie, respecting the credit of a third person, with intent to deceive, by which the third person was damnified ; and for the damages suffered, the plaintiffs contend that the defendant is answerable 266 ROSS ON COMMERCIAL LAW. in an action upon the case. It is admitted, that the action is new in point of precedent : but it is insisted that the law recognises principles on which it may be supported. The principle on which it is contended to lie is, that wherever deceit or falsehood is practised to the detriment of another, the law will give redress. This proposition I controvert; and shall endeavour to show, that in every case where deceit or falsehcjod is practised to the detriment of another, the law will not give redress; and I say that by the law, as it now stands, no action lies against any person standing in the predicament of this defendant for the false aflSrm- ation stated in the declaration. If the action can be supported, it must be upon the ground that there exists in this ease what the law deems damnum cum injuria. If it does, I admit that the action lies ; and I admit that upon the verdict found, the plaintiffs appear to have been damnified. But whether there has been injuria, a wrong, a tort, for r*^Qfn ^'^i''^ ^^ action lies, is matter of law. The *iort complained of L J is the false affirmation made with intent to deceive; and it is sa\d to be an action upon the case analogous to the old writ of deceit. When this was first argued at the Bar, on the motion for a new trial, I confess I thought it reasonable that the action should lie ; but, on look- ing into the old books for cases in which the old action of deceit has been maintained upon the false affirmation of the defendant, I have changed my opinion. The cases on this head are brought together in Bro. Tit. Deceit, pi. 29, and in Fitz. Abr. I have likewise looked into Danvers, Kitchins, and Comyns, and I have not met with any case of an action upon a false affirmation, except against a party to a contract, and where there is a promise, either express or implied, that the fact is true, which is misrepresented : and no other case has been cited at the bar. Then if no such case has ever existed, it furnishes a strong objec- tion against the action, which is brought for the first time for a supposed injury, which has been daily committed for centuries past; for I believe there has been no time when men have not been constantly damnified by the fraudulent misrepresentations of others : and if such an action would have lain, there certainly has been, and will be, a plentiful source of litigation, of which the public are not hitherto aware. A variety of cases may be put : suppose a man recommends an estate to another, as knowing it to be of greater value than it is ; when the purchaser has bought it, he discovers the defect, and sells the estate for less than he gave ; why may not an action be brought for the loss upon any principle that will support this action ? And yet such an action has never been attempted. Or, suppose a person present at the sale of a horse asserts that he was his horse, and that he knows hinj to be sound and sure- footed, when in fact the horse is neither the one nor the other; according to the principle contended for by the plaintiffs, an action lies against the person present as well as the seller ; and the purchaser has two securi- ties. And even in this very case, if the action lies, the plaintiffs will stand in a peculiarly fortunate predicament, for then they will have the ■ responsibility both of Falch and the defendant. And they will be in a better situation than they would have been if, in the conversation that OONTEAOT OF SALE. 267 passed between them and the defendant, instead of ^asserting r»qQi-] that Falch might safely be trusted, the defendant had said, " If L J he do not pay foj the goods, I will ;" for then undoubtedly an action would not have lain against the defendant. Other and stronger cases may be put of actions that must necessarily spring out of any principle upon which this can bo supported, and yet which were never thought of till the present action was brought. Upon what principle is this act said to be an injury? The plaintiflFs say, on the ground that, when the question was asked, the defendant was bound to tell the truth. There are cases, I admit, where a man is bound not to misrepresent, but to tell the truth ; but no such case has been cited, except in the case of con- tracts; and all the cases of deceit for mis-information may, it seems to me, bo turned into actions of assumpsit. And so far from a person being bound in a case like the present to tell the truth, the books supply me with a variety of cases in which even the contracting party is not liable I for a misrepresentation. There are cases of two sorts, in which, though a man is deceived, he can maintain no action. The first class of cases (though not analogous to. the present) is, where the affirmation is that the thing sold has not a defect which is a visible one : there the imposition, the fraudulent intent, is admitted, but it ia no tort. The The second head of cases is, where the affirmation is (what is called in some of the books) a nude assertion ; such as the party deceived may exercise his own judgment upon ; as where it is matter of opinion, where he may make inquiries into the truth of the assertion, and it becomes his own fault from laches that he is deceived : 1 Ro. Abr. 101 ; Yelv. 20 ; 1 Sid. 146 ; Cro. Jao. 386 ; Bayly v. Merrel. In Harvey v. Young, Yelv. 20, J. S., who had a term for years, affirmed to J. D. that the terra was worth £150 to be sold, upon which J. D. gave £150, and afterwards could not get more than £100 for it, and then brought his action ; and it was alleged that this matter did not prove any fraud, for it was only a naked assertion that the term was worth so much, and it was the plaintiflF's folly to give credit to such assertion. But if the defendant bad warranted the term to be of such a value to be sold, and upon that the plaintiff had bought it, it would have been otherwise ; for the warranty given by the defendant is a matter to induce confidence *and trust in the plaintifi'. This case, and the passage in 1 Ro. j- ,!.„„„-. Abr. 101, are recognised in 1 Sid. 146. How then are the L J cases ? , None exist, in which such an action as the present has been brought; none, in which any principle applicable to the present case has been laid down to prove that it will lie; not even a dictum. But from the cases cited, some principles may be extracted to show that it cannot be sustained. 1st, That what is fraud, which will support an action, is matter of law. 2dly, That in every case of a fraudulent mis- representation attended with damage, an action will not lie even between contracting parties. 3dly, That if the assertion be a nude assertion, it is that sort of misrepresentation, the truth of which does not lie merely in the knowledge of the defendant, but may be inquired into, and the plaintiff is bound so to do; and he cannot recover a damage which he has suffered by his laches. Then let us consider how far the facts of 268 ROSS ON OOMMERCIAIi LAW. the ease come within the last of these principles. The misrepresentation stated in the declaration is respecting the credit of Falch ; the defendant asserted that the plaintiffs ,might safely give him credit : but credit to which a man is entitled is matter of judgment and opinion, on which different men might form different opinions, and upon which the plaintiffs might form their own ; to mislead which no fact to prove the good credit of Falch is falsely asserted. It seems to me, therefore, that any asser- tion relative to credit, especially where the party making it has no in- terest, nor is in any collusion with the person respecting whose credit the assertion is made, is like the case in Yelverton respecting the value of the term. But at any rate it is not an assertion of a fact peculiarly in the knowledge of the defendant. Whether Falch deserved credit depended on the opinion of many ; for credit exists on the good opinion of many. Kespeoting this, the plaintiffs might have inquired of others, who knew as much as the defendant j it was their fault that they did not, and they have suffered damskge by their own laches. It was owing to their own gross negligence that they gave credence to the assertion of the defendant, without taking pains to satisfy themselves that that assertion was founded in fact, as in the case of Bayly v. Merrel. I am therefore of opinion that this action is as novel in principle as it is in P^„Q„-. precedent, that it is *against the principles to be collected from L J analogous cases, and consequently that it cannot be maintained. BuLLER, J. — The foundation of this action is fraud and deceit in the defendant, and damage to the plaintiffs. And the question ii, Whether an action thus founded can be sustained in a court of law ? Fraud without damage, or damage without fraud, gives no cause of action ; but where these two concur, an action lies. Per Croke, 3 Bulst. 95. But it is contended that this was a bare naked lie j that, as no collusion with Falch is charged, it does not amount to a fraud : and, if there were any fraud, the nature of it is not stated. And it was supposed by the coun- sel who originally made the motion, that no action could be maintained, I unless the defendant, who made this false assertion, had an interest in so doing. I agree that an action cannot be s'upported for telling a bare naked lie; but that I define to be, saying a thing which is false,, know- ing or not knowing it to be so, and without any design to injure, cheat, or deceive, another person. Every deceit comprehends a lie; but a deceit is more than a lie on account of the view with which it is prac- tised, its being coupled with some dealing, and the injury which it is calculated to occasion, and does occasion, to another person. Deceit is a very extensive head in the law; and it will be proper to take a short view of some of the cases which have existed on the subject, to see how far the courts have gone, and what are the principles upon which they have decided. I lay out of the question the case in 2 Cro. 196, and all other cases which relate to freehold interests in lands : for they go on the special reason that the seller cannot have them without title, and the buyer is at his peril to see it. But the cases cited on the part of the defendant, deserving notice, are Yelv. 20; Garth. 90; Salk. 210. The first of these has been fully stated by my brother G-rose : but it is to be observed that the book does not affect to give the reasons on which the CONTRACT OF SALE. 269 Court delivered their judgment : but it is a case quoted by counsel at the Bar, who mentions what was alleged by counsel in the other case. If the Court went on a distinction between the words warranty and affirmation, the case is not law : for it was rightly held by Holt, C. J., in the subsequent cases, and *has been uniformly adopted ever r*qq4.-i since, that an affirmation at the time of a sale is a warranty, pro- L J yided it appear on evidence to have been so intended. But the true ground of that determination was, that the assertion was of a mere mat- ter of judgment and opinion ; of a matter of which the defendant had no particular knowledge, but of which many men will be of many minds, and which is often governed by whim and caprice. Judgment or opinion, in such case, implies no knowledge. And here this case differs materi- ally from that in Yelverton : my brother Grose considers this assertion as mere matter of opinion only ; but I differ from him in that respect. For it is stated on this record, that the defendant knew that the fact was false. The case in Yelverton admits, that if there had been fraud, it would have been otherwise. The case of G-rosse v. Grardner, Garth. 90, was upon an affirmation that oxen, which the defendant had in his pos- session and sold to the plaintiff, were his, when in truth they belonged to another person. The objection against the action was, that the de- claration neither stated that the defendant deceitfully sold them, or that be knew them to be the property of another person; and a man may be mistaken in his property and right to a thing without any fraud or ill intent. Ex concessis, therefore, if there were fraud or deceit the action would lie ; and knowledge of the falsehood of the thing asserted is fraud and deceit. But notwithstanding these objections, the Court held that the action lay, because the plaintiff had no means of knowing to whom the property belonged but only by the possession. And in Cro. Jac. 474, it was held, that affirming them to be his, knowing them to be a stranger's, is the offence and cause of action. The case of Medina v. Stoughton, Salk. 210, in the point of decision, is the same as G-rosse v. Gardner : but there is an ohiter dictum of Holt, C. J., that where the seller of a personal thing is out of possession, it is otherwise, for there may be room to question the seller's title, and caveat emptor in such case to have an express warranty, or a good title. This distinction by Holt is not mentioned by Lord Eaym. 593, who reports the same case : and if an affirmation at the time of sale be a warranty, I cannot feel a distinction between the vendor's being in or out of possession. The thing is bought of him, and in consequence of his assertion : *and r#<>Qc-i if there be any difference, it seems to me that the case is strong- >- -I est against the vendor , when he is out of possession, because then the vendee has nothing but the warranty to rely on. These oases then are so far from being authorities against the present action, that they show that, if there be fraud or deceit, the action will lie ; and that knowledge of the falsehood of the thing asserted is fraud and deceit. Collusion then is not necessary to constitute fraud. In the case of a conspiracy, there must be a collusion between two or more to support an indictment : but if one man alone be guilty of an offence, which, if practised by two, would be the subject of an indictment for a conspiracy, he is civilly February, 1855. — 18 270 ROSS ON OOMMEROIAI, LAW. liable in an action for reparation of damages at the suit of the person injured. That knowledge of the falsehood of the thing asserted consti- tutes fraud, though there be no collusion, is further proved by the case of Eisney v. Selby, Salk. 211, where, upon a treaty for the purchase of a house, the defendant fraudulently affirmed that the rent was £30 per annum, when it was only £20 per annum, and the plaintiff had his judg- ment ; for the value of the rent is a matter which lies in the private knowledge of the landlord and tenant, and if they affirm the rent to be more than it is, the purchaser is cheated, and ought to have a remedy for it. No collusion was there stated, nor does it appear that the tenant was ever asked a question about the rent, and yet the purchaser might have applied to him for information; but the judgment proceeded wholly upon the ground that the defendant knew that what he asserted was false. And by the words of the book it seems that, if the tenant had said the same thing he also would have been liable to an action. If so, that would be an answer to the objection, that the defendant in this case had no interest in the assertion which he made. But I shall not leave this point on the dictum or inference which may be collected from that case. If A. by fraud and deceit cheat- B. out of ^61000, it makes no difference to B. whether A., or any other person, pockets that £1000. He hds lost his money, and if he can fix fraud upon A., reason seems to say that he has a right to seek satisfaction against him. Authorities are not wanting on this point. 1 Koll. Abr. 91, pi. 7. If the vendor r*^Qfil ^ffi)^™ tl^^* *'te goods are the goods of a stranger, his friend, *and L -I that he had authority from him to sell them, and upon that B. buy them, when in truth they are the goods of another, yet if he sell them fraudulently and falsely on this pretence of authority, though he do not warrant them, and though it be not averred that he sold them knowing them to be the goods of the stranger, yet B. shall have an action for this deceit. It is not clear from this case, whether the fraud consisted in having no authority from his friend, or in knowing that the goods belonged to another person : what is said at the end of the ease only proves that falsely and fraudulently are equivalent to knowingly. If the first were the fact in the case, namely, that he had no authority, the case does not apply to this point : but if he had an authority from his friend, whatever the goods were sold for his friend was entitled to, and he had no interest in them. But however that might be, the next case admits of no doubt. For in 1 Ko. Abr. 100, pi. 1, it was held, that if a man acknowledge a fine in my name, or acknowledge a judg- ment in an action in my name of my land, this shall bind me for ever ; and therefore I may have a writ of deceit against him who acknowledged it. So if a man acknowledge a recognizance, statute-merchant, or staple, there is no foundation for supposing that in that case the person acknow- ledging the fine or judgment was the same person to whom it was so acknowledged. If that had been necessary, it would have been so stated ; but if it were not so, he who acknowledged the fine had no interest in it. Again, in 1 Bo. Abr. 95, 1. 25, it is said, if my servant lease my land io another for years, reserving a rent to me, and to persuade the lessee io accept it, he promise that he shall enjoy the land without encum- OONTRAOT or SALE. 271 brances ; if the land be encumbered, &c., the lessee may have an action on the case against my servant, because he made an express warranty. Here then is a case in which the party had no interest whatever. The same case is reported in Cro. Jao. 425, but no notice is taken of this point ; probably because the reporter thought it immaterial whether the warranty be by the master or servant. And if the warranty be made at the time of the sale, or before the sale, and the sale is upon the faith of the warranty, I can see no distinction between the cases. The gist of the action is fraud and deceit, and if that fraud and deceit can be fixed by •evidence on one who had no interest in his iniquity, it proves p^^ony-i his malice to be the greater. But it was objected to this L J declaration, that if there were any fraud, the nature of it is not stated : to this the declaration itself is so direct an answer, that the case admits of no other. The fraud is, that the defendant procured the plaintiflFa to sell goods on credit to one whom they would not otherwise have trusted, by asserting that which he knew to be false. Here then is the fraud, and the means by which it was committed j and it was done with a view to enrich Falch by impoverishing the plaintiffs, or, in other words, by cheating the plaintiffs out of their goods. The cases which I have stated, and Sid. 146, and 1 Keb. 522, prove that the declaration states more than is necessary ; for fraudulenter without aciens, or sciens with- out /raudulenter, would be sufficient to support the action. But, as Mr. J. Twisden said in that case, the fraud must be proved. The assertion alone will not maintain the action : but the plaintiff must go on to prove that it was false, and that the defendant knew it to be so : by what means that proof is to be made out in evidence need not be stated in the declaration. Some general arguments were urged at the Bar, to show that mischiefs and inconveniences would arise if this action were sustained ; for if a man, who is asked a question respecting another's responsibility, hesitate, or is silent, he blasts the character of the trades- man : and if he say that he is insolvent, he may not be able to prove it. But let us see what is contended for ; it is nothing less than that a man may assert that which he knows to be false, and thereby do an everlast- ing injury to his neighbour, and yet not be answerable for it. This is as repugnant to law as it is to morality. Then it is said, that the plain- tiffs had no right to ask the question of the defendant. But I do not agree in that ; for the plaintiffs had an interest in knowing what the credit of Falch was. It was not the inquiry of idle curiosity, but it was to govern a very extensive concern. The defendant undoubtedly had his option to give an answer to the question or not : but if he gave none, or said he did not know, it is impossible for any court of justice to adopt the possible inferences of a suspicious mind as a ground for grave judgment. All that is required of a person in the defendant's situation is, that he *shall give no answer, or that if he do, he r*qQQ-i shall answer according to the truth as far as he knows. The L J reasoning in the case of Coggs v. Barnard which was cited by the plain- tiff's counsel, is, I think, very applicable to this part of the case. If the answer import insolvency, it is not necessary that the defendant ehould be able to prove that insolvency to a jury; for the law protects 272 ROSS ON COMMERCIAL LAW. a man in giving that answer, if he does it in confidence and without malice. No action can be maintained against him for giving such an answer unless express malice can be proved. From the circumstance of the law giving that protection, it seems to follow, as a necessary conse- quence, that the law not only gives sanction to the question, but requires that, if it be answered at all it shall be answered honestly. There is a case in the books, which, though not much to be relied on, yet serves to show that this kind of conduct has never been thought innocent in Westminster Hall. In E. V. Gunston, 1 Str. 583, the defendant was indicted for pretend- ing that a person of no reputation was Sir J. Thornycraft, whereby the prosecutor was induced to trust him ; and the Court refused to grant a cer- tiorari, unless a special ground were laid for it. If the assertion in that case had been wholly innocent, the Court would not have hesitated a moment. How indeed an indictment could be maintained for that, I do not well understand ; nor have I learnt what became of it. The objec- tion to the indictment is, that it was merely a private injury : but that is no answer to an action. And if a man will wickedly assert that which he knows to be false, and thereby draws his neighbour into a heavy loss, even though it be under the specious pretence of serving his friend, I say ausis talihus istis non jv/ra subserviimt. AsHHURST, J. — The objection in this case, which is to the third count in the declaration, is, that it contains only a bare assertion, and does not state that the defendant had any interest, or that he colluded with the other party who had. But I am of opinion that the action lies notwithstanding this objection. It seems to me that the "rule laid down by Croke, J., in Bayly v. Merrel, 3 Bulst. 9.5, is a sound and solid principle, namely, that fraud without damage, or damage without r,qqq-i fraud, will not found an action ; but where both concur, an action L -1 *will lie. The principle is not denied by the other Judges, but only the application of it, because the party injured there, who was the carrier, had the means of attaining certain knowledge in his own power, namely, by weighing the goods ; and therefore it was a foolish credulity against which the law will not relieve. But that is not the case here, for it is expressly charged that the defendant knew the falsity of the allegation, and which the jury have found to be true ; but non constat that the plaintiffs knew it, or had any means of knowing it, but trusted to the veracity of the defendant. And many reasons may occur why the defendant might know that fact better than the plaintiffs j as if there had before this event subsisted a partnership between him and Palch, which had been dissolved : but at any rate it is stated as a fact that he knew it. It is admitted that a fraudulent affirmation, when the party making it has an interest, is a ground of action ; as in Eisney v. Selby, Salk. 211, which was a false affirmation made to a purchaser as to the rent of a farm which the defendant was in treaty to sell to him. But it was argued that the action lies not unless where the party making it has an interest, or colludes with one who has. I do not recollect that any case was cited which proves such a position ; but if tbere were any such to be found^ I should not hesitate to say that it could not be law ; for I have so great q, veBeration for the law as to suppose that nothing OONTEAOT or SALE. 273 can be law which is not founded in common sense or common honesty. For the gist of the action is the injury done to the plaintiff, and not whether the defendant meant to be a gainer by it : what is it to the plaintiff whether the defendant was or was not to gain by it? the injury to him is the same. And it should seem that it ought more emphatically to lie against him, as the malice is more diabolical, if he had not the temptation of gain. For the same reason, it cannot be necessary that the defendant shonld collude with one who has an interest. But if collusion were necessary, there seems all the reason in the world to suppose both interest and collusion from the nature of the act ; for it is to be hoped that there is not to be found a disposition so diabolical as to prompt any man to injure another without benefiting himself. But it is said, that if this be determined^ to be law, any man may have an action *brought against him for telling a lie, by the crediting of r^Ann-, which another happens eventually to be injured. But this con- L J sequence by no means follows j for in order to make it actionable, it must be accompanied with the circumstances averred in this count, namely, that the defendant, " intending to deceive and defraud the plain- tiffs, did deceitfully enoour?.ge and persuade them to do the act, and for that purpose made the false affirmation, in consequence of which they did the act." Any lie accompanied with those circumstances I should clearly hold to be the subject of an action : but not a mere lie thrown out at random without any intention of hurting anybody, but which some person was foolish enough to act upon ; for the quo animo is a great part of the gist of the action. Another argument which has been made use of is, that this is a new case, and that there is no precedent of such an action. Where cases are new in their principle, there I admit that it is necessary to have recourse to legislative interposition in order to remedy the grievance : but where the case is only new in the instance, and the only question is upon the application of a principle recognised in the law to such new case, it will be just as competent to courts of justice to apply the principle to any case which may arise two centuries hence as it was two centuries ago : If it were not, we ought to blot out of our law books one fourth part of the cases that are to be found in them. The same objection might in my opinion have been made with much greater reason in the case of Coggs v. Barnard j for there the defendant, so far from meaning an injury, meant a kindness, though he was not so careful as he should have been in the execution of what he undertook. And indeed the principle of the case does not, in my opinion, seem so clear as that of the case now before us, and yet that case has always been received as law. Indeed one great reason perhaps why this action has never occurred may be that it is not likely that such a species of fraud should be practised unless the party is in some way interested. Therefore I think the rule for arresting the judgment ought to be discharged. Lord Kenyon, C. J I am not desirous of entering very fully into the discussion of this subject, as the argument comes *to me r^^n-i-i quite exhausted by what has been said by my brothers. But L -I still I will say a few words as to the grounds upon which my opinion is 274 ROSS ON COMMERCIAL LAW. formed. All laws stand on the' best and broadest basis which go to en- force moral and social duties : Though indeed it is not every moral and social duty the neglect of which is the ground of an action. For there are, which are called in the civil law, duties of imperfect obligation, for the enforcing of which no action lies. There are many cases where the pure effusion of a good mind may induce the performance of particular duties, which yet cannot be enforced by municipal laws. But there are certain duties, the non-performance of which the jurisprudence of this country has made the subject of a civil action. And I find it laid down by the Lord Oh. B. Comyns, that, « an action upon the case for a deceit lies when a man does any deceit to the damage of another." He has not, indeed, cited any authority for this opinion ; but his opinion alone is of great authority ; since he was considered by his cotemporaries, as the most able lawyer at Westminster Hall. Let ns, however, consider whether that proposition is not supported by the invariable principle in all the cases on this subject. . In 3 Bulstr. 95, it was held by Crok'e, J., that " fraud without damage, or damage without fraud, gives no cause of ac- tion : but where these two do occur, there an action lieth." It is true, as has been already observed, that the judges were of opinion in that case that the action did not lie on other grounds. But consider what those grounds were. Dodderidge, J., said, " If we shall give way to this, then every carrier would have an action upon the case : but he shall not have any action for this, because it is merely his own default that he did not weigh it." Undoubtedly where the common prudence and caution of man are sufficient to guard him, the law will not protect him in his negligence. And in that case as reported in Cro. Jac. 386, the negligence of the plaintiff himself was the cause for which the Court held that the action was not maintainable. Then how does the principle of that case apply to the present ? There are many situations in life, and particularly in the commercial world, where a man cannot by any diligence inform himself of the degree of credit which ought to be given to the persons with whom he deals ; in which cases he must apply to r*Aft9n ^^°^^ *whose sources of intelligence enable them to give that L J information. The law of prudence leads him to apply to them, and the law of morality ought to induce them to give the information required. In the case of Bulstrode the carrier might have weighed the goods himself : but in this case the plaintiffs had no means of knowing the state of Falch's credit but by an application to his neighbours. The same observation may be made to the cases cited by the defendant's counsel respecting titles to real property. For a person does not have recourse to common conversations to know the title of an estate which he is about to purchase : but he may inspect the title deeds ; and he does not use common prudence if he rely on any other security. In the case of Bulstrode the Court seemed to consider that damnum and inju- ria are the grounds of this action and they all admitted that, if they had existed in that case, the action would have lain there^j for the rest of the judges did not controvert the opinion of Croke, J., but denied the application of it to that particular case. Then it was contended here that the action cannot be maintained for telling a naked lie : but that CONTRACT OIP SALE. 275 proposition is to be taken suh modo. If, indeed, no injury is occasioned by the lie, it is not actionable : but if it be attended with a damage, it then becomes the subject of an action. As calling a woman a whore, if she sustain no damage by it, is not actionable ; but if she loses her mar- riage by it then, she may recover satisfaction in damages. But in this case the two grounds of the action concur : here are both the damnum et injuria. The plaintiffs applied to the defendant, telling him that they were going to deal with Paloh, and desiring to be informed of his credit, when the defendant fraudulently, and knowing it to be otherwise, and with a design to deceive the plaintiffs, made the false affirmation which is stated on the record, by which they sustained a considerable damage. Then, can a doubt bo entertained for a moment but that this is injurious to the plaintiffs ? If this be not an injury, I do not know how to define the word. Then as to the loss, this is stated in the declaration, and found by the verdict. Several of the words stated in this declaration, and particularly " fraudulenter," did not occur in seve- ral of the cases cited. It is admitted that the defendant's conduct was *highly immoral, and detrimental to society. And I am of r^fAno-i opinion that the action is maintainable on the grounds of deceit <- ■< in the defendant, and injury and loss to the plaintiffs. Bule for arresting the judgment discharged. • II. — LANGEIDGE v. LEVY. Easter Term, 1837.— E. 2 M. & W. 519. Case — The declaration stated, that whereas one G-eorge Langridge, the father of the plaintiff, on the 1st of June, 1833, at the request of the defendant, bargained with him to buy of him a certain gun, to wit, for the use of himself and his sons, at and for a certain price, to wit, the sum of £24, and the defendant then, by falsely and fraudulently warranting the said gun to have been made by Nock, and to be a good, safe, and secure gun, then sold the said gun to the said George Lang- ridge, for the use of himself and his sons, for the said sum of £24 then paid by the said George Langridge to the defendant for the same : where- as in truth and in fact, the defendant was guilty of great breach of duty, and of wilful deceit, negligence, and improper conduct, in this, that the said gun, at the time of the said warranty and sale, was not made by Nock, nor was it a good, safe, and secure gun, but, on the contrary thereof, was made and constructed by a maker very inferior as a gun- maker to Nock, and was then and at all times a very bad, unsafe, ill- manufactured, and dangerous gun, and wholly unsound and of very infe- rior materials ; of all which premises the defendant, at the time of the making of the said warranty, and of the said sale, had full knowledge and notice. And the plaintiff in fact says, that he knowing and confid- ing in the said warranty, did use and employ the said gun, which but for the said warranty he would not have done : and that afterwards, to 276 ROSS ON OOMMEKCIAL LAW. wit, on the 10th December, 1835, the said gun being then in the hands and use of the plaintiff, by reason and wholly in consequence of the weak, dangerous, and insufficient and unworkmanlike manufacture, con- struction, and materials thereof, then and whilst the said gun was so ill use by the plaintiff, burst and exploded, became shattered, and went to r*J.n4.T P^^''^^ ; whereby and *by reason whereof the plaintiff was greatly L J cut, wounded, maimed, &c. &c., and wholly by means of the pre- mises, breach of duty, and improper conduct of the defendant, lost, and is forever deprived of the use of his hand, &c. &c. Pleas, first, not guilty ; secondly, that the defendant did not warrant the said gun to be made by Nock, and to be a good, safe, and secure gun, in manner and form, &e. ; thirdly, that the gun was not a bad, unsafe, ill-manufactured, and dangerous gun, and wholly unsound, and of very inferior materials, as in the declaration alleged ; fourthly, that the gun did not by reason and wholly in consequence of the weak, dan- gerous, and insufficient and unworkmanlike manufacture, construction, and materials thereof, burst, &c., as in the declaration alleged : — on all which issues were joined. At the trial before Alderson, B., at the Somersetshiie Summer As- sizes, 1836, it appeared that in June, 1833, the plaintiff's father saw in the shop of the defendant, a gun-maker in Bristol, a double-barrelled gun, to which was attached a ticket in these terms : — " Warranted, this elegant twist gun, by Nock, with case complete, made for his late Ma- jesty George IV. ; cost 60 guineas ; only 25 guineas." He went into the shop, and saw the defendant, and examined the gun. The defend- ant (according to Langridge's statement) said he would warrant the gun to have been made by Nock for King George IV., and that he could pro- duce Nock's invoice. Langridge told the defendant he wanted the gun for the use of himself and his sous, and desired him to send it to hia house at Knowle, about two miles from Bristol, that they might see it tried. On the next day, accordingly, the defendant sent the gun to Langridge's house by his shopman, who also on that occasion warranted it to be made by Nock, and charged and fired it off several times. Lang- ridge ultimately bought it of him for £24, and paid the price down. Langridge the father and his three sons used the gun occasionally ; and in the month of December following, the plaintiff, his second son, having taken the gun into a field near his father's house to shoot some birds, putting in an ordinary charge, on firing off the second barrel, it exploded, and mutilated his left had so severely as to render it necessary that it r*4G51 ®^°'^'^*^ ^^ amputated. There was conflicting "evidence as to the L -I fact of the gun's being an insecure one, or of inferior workman- ship. Mr. Nock, however, proved that it was not manufactured by him. The defendant also denied that any warranty had been given. The learned judge left it to the jury to say, first, whether the defendant had warranted the gun to be made by Nock, and to be a safe and secure one ; secondly, whether it was in fact unsafe or of inferior materials or work- manship, and exploded in consequence of being so ; and, thirdly, whe- ther the defendant warranted it to be a safe gun, knowing that it was not so. The jury found a general verdict for the pldintiff, damages £400. OONTEAOT OP SALE. 277 In Michaelmas Term, Erie moved in pursuance of leave reserved by the learned Judge, and obtained a rale nid for a nonsuit, on the ground that no duty could result out of a mere private contract, the defendant being clothed with no ofSoial or professional character out of which a known duty could arise ; and that the injury did not arise so immedi- ately from the defendant's act as that it could form the subject of an action on the case by the plaintiff, between whom and the defendant there was no privity of contract — In Hilary Term, Bompaa, Serjt., and Ball, showed cause. — This declaration discloses a sufficient cause of action against the defendant. The object of the action on the case, given by the statute of Westminster, was to meet every case of individual and particular Wrong as it might arise, on the well-known principle that, if any subject sustained a wrong by the un- justifiable act of another, he ought to have a remedy. It is no objec- tion, therefore, that this particular action may not have been brought. Nor is it material, after verdict, that the declaration may be informally drawn, if on the face of it a sufficient cause of action be disclosed. Although the contract is set out in the declaration, the action is not brought upon that contract, on which undoubtedly the son could not sue. But the action on the case is peculiarly applicable to cases where the party cannot sue on the contract, but where out of the breach of it a wrong has resulted to the plaintiff. The statement of the contract is merely introductory; it is however thus far important, that it shows the *defendant had notice that Langridge the father bought the gun r^Ana-i for the use of his sons : and it is alleged also that the plaintiff L J knew of aiid confided in the warranty. In Chapman v. Pickersgill, 2 Wils. 145, where it was first held that case lay for maliciously suing out a commission of bankruptcy which was afterwards superseded, Wil- mot, C. J., says, — "It is said this action was never brought, and so it was said in Ashby v. White ; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or con- fined, for there is nothing in nature but may be an instrument of mis- chief." Here it is clear that if the plaintiff cannot sue for this injury, no other person can, and there is a "wrong without a remedy. But the principle on which it is contended that this action may be supported, is, that wherever by the circumstances of the transaction a duty is imposed upon the defendant, and by a breach of that duty (as distinguished from a contract) an injury happens to the plaintiff, he tnay sue. This duty may either arise out of a contract, or it may be imposed by law : and the present case may be rested on both these grounds. It should be observed, that it does not follow that because a contract exists, an action of tort may not be maintained even by the party to the contract. Thus, in Mast v. Goodson, 3 Wils. 348, a count on an agreement in writing, that the plailitiff should build a yard in the defendant's close, and lay out £20 upon it, and that the plaintiff should enjoy it for his life, averred that the plaintiff did build the yard, &e., and enjoyed the same for some years as an easement, and assigned for breach that the defend- ant wrongfully and injuriously obstructed him in the enjoyment of such easement; and this was held to be a good count in toH, and well joined 278 ROSS ON COMMEHCIAL LAW. with a count in trover. There the plaintiff might have sued directly on the contract; yet he was held entitled to sue in tort for a breach of the duty arising out of it. In Bverard v. Hopkins, 2 Bulstr. 332, the declaration stated, that the defendant being a common chirurgeon, had undertaken the cure of the plaintiff's servant, being hurt with a cart- wheel, and that by agreement between them, he was to have five marks for the said cure ; and alleged that he was not only careless of the cure, but applied unwholesome medicines, &c., whereby the plaintiff lost the r*4.n71 ^^'■''''^ °^ ^^^ servant *for a year : it was held, on demurrer, that L -I this count was good; and it was also said that the servant, though he could not sue upon the agreement, might have an action upon the case for the applying of unwholesome medicines to him. So, in an action on the case by a man and his wife against a surgeon for an injury to the wife by reason of the defendant's improper and upskilful treat- ment, it was held sufficient to state in the declaration that the defendant was retained as a surgeon for reward, and entered on the cure, without alleging by whom he was retained, or was to be paid : Pippin and Wife V. Sheppard, 11 Price, 400. Eichards, C. B., there says : — " From the necessity of the thing, the only person who can properly sustain an action for damages for an injury done to the person of the patient, is the patient himself; for damages could not be given on that account to any other person, although the surgeon may have been retained and em- ployed by him to undertake the cure. The party employing the surgeon can have nothing to do with this action." So here, the father could recover only for the breach of the contract, and nothing for the injury to his son, except so far as he might be able to show a loss of his servi- ces. In Vin. Abr., Actions, (Case, Deceit,) 0. b. 2, this case is put, which is also referred to in Everard v. Hopkins: — "If I deliver my horse to a smith to shoe, and he deliver him to another smith, who pricks him, I may have action upon the case against him, though I did not deliver the horse to him :" — citing 12 E. 4, 13 a, pi. 9. Another case there stated is, where a party delivers goods to A., who delivers them to B. to keep for his use, and B. wastes them ; the owner may have an action on the case against B., though he did not deliver them to him. In these cases the only contract was with the original bailee ; yet an action on the case was held maintainable against the second. But, in the second place, a duty was imposed by law on the defend- ant, not knowingly to sell an article calculated to do injury.. Where a party undertakes to furnish that which by his misconduct may become dangerous to another, he is bound in law to take reasonable care that it is so supplied as not to be injurious. The law imposes such a duty, though there may be no contract at all. It is analogous to the liability P408n °^ ^ P*''*y *who puts dangerous animals, knowing their dispo- L J sition, into a place where they are likely to do injury; Dixon v. Bell, 5 M. & Sel. 198. He who carelessly or wrongfully exposes another to danger by fire-arms is in a like predicament. Suppose there were no contract in this case, and it appeared that the defendant had put the gun into the plaintiff's hand to fire it off, knowing it to be uiAafe ; can it be said that he would- not be liable if any injury resulted ? If a party sold OONTEAOT OF SALE. 279 a vicious dog under a representation that lie was a quiet one, and being taken home by the buyer, he bit his child ; would not the seller be liable for this injury? The law imposes on all persons who deal in dangerous commodities or instruments, an obligation that they should use reason- able care, much more that they should not supply them knowing them to be likely to cause injury. [Pabke, B., referred to Williams v. East India Company, 3 East, 192. Alderson, B. — There are many cases which establish that the act of an unsconscious agent is the act of the party who sets him in motion. If your declaration had averred that the father was an unconscious agent in the transaction, that is, that he believed the gun to be safe, it would have brought you within that prin- ciple.] It is averred that it was delivered to the father, for the use of the sons, on an undertaking from the defendant that it was a safe one ; as against him, therefore, it is not necessary to show that the father believed it to be so ; at all events, after verdict, the allegation is suffi- cient. Suppose A. sells oxalic acid as Epsom salts ; B. discovering the error, puts it back, and goes to inform A. of it; in the meantime C. takes it ; would B.'s knowledge affect C.'s right of action against A. ? [Alderson, B. — It is averred that the injury arose wholly by the breach of duty of the defendant; that negatives the inference that it was in any degree by breach of duty in the father.J The onus is on the defend- ant to show that the plaintiff is not entitled to recover : prima facie, every man who suffers an injury is entitled to recover against the party who caused it, and who must be taken to have intended the natural con- sequences of his injurious act. Erie and Butt, contra. — There is no such known right in the *English law as is contended for on the other side, whereby the r^it^nq-i plaintiff is entitled to receive damages from the defendant, with L J whom he made no contract. The allegation, that the gun was delivered for the use of the sons, is not a direct and traversable allegation ; it is laid under a videlicet, and is wholly immaterial. If the contract had been denied, it would have been sufficient to prove a contract in fact, without proving the statement that the gun was bought for the sons' use. The introduction of that allegation, therefore, cannot affect the defend- ant's legal liability. At all events, the declaration should have shown that it was bought for the use of the sons in some lawful and necessary employment — as in the service of the father — and so used; as it stands, it must be taken that the plaintiff used it merely for his amusement, and without the father's authority. It is consistent with all that is stated, that the plaintiff, having heard of the warranty, and having become aware of the unsafe state of the gun, may have taken it from its place of custody, and of his own act loaded and fired it off, when it exploded. All these presumptions ought to have been excluded, in order to give the plaintiff a right of action. The special damage can give no cause of action, if no breach of duty be shown down to that point. The plaintiff must show a breach of a public duty, or a violation of a private right existing between himself and the defendant — and then follows the dam- age, which completes the cause of action ; but the damage cannot be prayed in aid to support the previous part of the case : and here it is in 280 ROSS ON COMMERCIAL LAW. ' the statement of the special damage that it is said the injury was caused by the breach of duty and improper conduct of the defendant. No doubt, whenever an instrument is immediately dangerous, and is so placed' as to be likely to do an injury to any of the public, the party who places it there is liable for such injury. But here, for aught that appears, the gun was delivered to the father unloaded. And the contract of warranty raises no foundation of public duty : it is a mere representation at the time ; and there is no authority that it was in breach of any public duty, or could have subjected the defendant to any public proceeding. In all the cases referred to on the other side, it was alleged as a fact, and is r*n m noticed by the Court, that the instrument was at the time *aetu- L J ally dangerous. So, also, in the cases relating to the setting of loaded spring guns, ot other weapons directly dangerous. Ilott v. Wilkes, 3 B. & Aid. 308 ; Bird v. Holbrook, 4 Bing. 628; 1 Moo. & P. ; Townsend v. Wathen, 9 East, 277. So^ ferocious animals are im- mediately and necessarily dangerous. But there are other cases which may be put, more in analogy with the present. Suppose a chain cable were sold with a warranty of its being secure, when in fact it was im- perfect, and the vessel being in a storin, the cable is let go, and breaks ; could it be contended that the captain and each of the crew, if injured in consequence, would have a right of action against the seller? So, supposing the owner of an unruly horse, knowing his disposition, sold him with a warranty that he was quiet to drive, and the buyer lent him to a friend, who put other persons into the carriage, and he ran away, and overturned and injured them ; would the seller be liable to each of these persons ? — Such liabilities would be carried to an extent wholly indefinite. The distinction is this : is the instrument or other thing im- mediately dangerous or mischievous by the act of the defendant, or is it such as may become so by some further act to be done to it ? Thus, in the well-known case of Scott v. Shepherd, 3 Wils. 403, the squib was immediately dangerous, and the injury done by it furnished a right of action. So there is a known head of actions for negligence " in keeping his fire;" Coin. Dig., Action upon the case for negligence (A. 6); because fire is a known immediate cause of mischief. The nearest case to the present is that of Witte v. Hague, 2 Dowl. & Kyi. 38. There A., an engineer, having been employed by B. to erect a steam boiler and other apparatus on premises adjoining to the manufactory of C, and C's pro- perty having been injured in consequence of the explosion of the boiler by reason of the insufficiency of the materials of which it was composed; and it being found as a fact by the jury that A. was personally present, and that his servants had the management of the apparatus at the time of the accident, it was held that C. might maintain an action on the case against A. for the injury; but the Court intimated an opinion, that if the jury had negatived the fact of A.'s management of the apparatus, though the accident arose from the imperfection of the materials, he r*4in ^°'*^'^ ^°^ *have been primarily liable. The general principle <- -I is, that the damage must be a proximate consequence from the act of the defendant : — here no privity is shown between the defendant and the plaintiff, and the gun is made to produce the damage by the OONTRAOT OF BALE. 281 spontaneous and unauthorized act of the plaintiff, [Paeke, B. — The question is, whether a person to whom the representation of the defend- ant is indirectly made, may not also bring an action. Suppose it be made to the one in order to be communicated to the other?] Then it ought to be 80 averred. [Paeke, B. — May not that be collected from the allega- tions in this declaration ?] There is no statement that the representation was made by the defendant to the plaintiff, or that it was conveyed to him by his father, or that the father was an intermediate agent for the purpose of conveying it. If the defendant had authorized the father to make the representation to the plaintiff, it might and ought to have been averred that the defendant so represented to the plaintiff : but all that is alleged is, that the father, at the time of the sale, told the defendant it was for the uso of himself and his sons. It is just the same as the case of the purchaser of a horse for himself and his friends, or of a stage coach for the use of the proprietors and all the passengers. In the cases cited on the other side, of Everard v. Hopkins, and Pippin v. Sheppard, there was a direct act of misfeasance done by the defendant to the plain- tiff. So, in Williams v. East India Company, the action was between the parties to the contract. Scott v, Lara, Peake's N, P. C. 296; Ward V. Weeks, 7 Bing. 211; Vicars v. Wiloocks, 8 East, 1, are authorities to show that, in order to support an action for a false representation,*the injury must be the natural and legal consequence of the false statement of the defendant. Our. adv. vult. In the present Term, the judgment of the Court was delivered by — Paeke, B. — In this case a motion was made to arrest the judgment after a verdict for the plaintiff. [His Lordship stated the declaration, and proceeded :] — It is clear that this action *cannot be sup- p^ , ^ „-. ported upon the warranty as a contract, for there is no privity in L J that respect between the plaintiff and the defendant. The father was the contracting party with the defendant, and can alone sue upon that contract for the breach of it. The question then is, Whether enough is stated on this record to en- title the plaintiff to sue, though not on the contract ? and we are of opi- nion that there is, and that the present action may be supported. We are not prepared to rest the case upon one of the grounds on which the learned counsel for the plaintiff sought to support his right of action, namely, that wherever a duty is imposed on a person by contract or other- wise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrongdoer : we think this action may be supported without laying down a principle which would lead to that indefinite extent of liability, so strongly put in the course of the argument on the part of the defendant ; and we should pause before we made a precedent by our decision which would be an authority for an action against the vendors, even of such instruments and articles as are dangerous in themselves, at the suit of any person whomsoever into whose hands they might happen to pass, and who should be injured thereby. We do not feel it necessary to go to that length, and our judgment pro- ceeds upon another ground. If the instrument in question, which is not of itself dangerous, but which requires an act to be done, that is, to be 282 BOSS ON OOMMEEOIAIi LAW. loaded, in order to make it so, had been simply delivered by the defend- ant, without any contract or representation on his part, to the plaintiff, no action would have been maintainable for any subsequent damage which the plaintiff might have sustained by the use of it. But if it had been delivered by the defendant to the plaintiff, for the purpose of being so used by him, with an accompanying representation to him that he might safely so use it, and that representation had been false to the defendant's knowledge, and the plaintiff had acted upon the faith of its being true, and had received damage thereby, then there is no question but that an action would have lain upon the principle of a numerous class of oases, r*41 ^1 °^ ^^^'^^ *^6 leading one is that of Pasley v. Freeman, 3 T. R. L J *51 ; which principle is, that a mere naked falsehood is not enough to give a right of action ; but if it be a falsehood told with an intention that it should be acted upon by the party injured, and that act must produce damage to him; if, instead of being delivered to the plaintiff immediately, the instrument had been placed in the hands of a third per- son, for the purpose of being delivered to and then used by the plaintiff, the like false representation being knowingly made to the intermediate person to be communicated to the plaintiff and the plaintiff had acted upon it, there can be no doubt but that the principle would equally apply, and the plaintiff would have had his remedy for the deceit ; nor could it make any difference that the third person also was intended by the defendant to be deceived; nor does there seem to be any substantial distinction if the instrument be delivered, in order to be so used by the plaintiff, though it does not appear that the defendant intended the false representation itself to be communicated to him. There is a false representation made by the defendant, with a view that the plaintiff should use the instrument in a dangerous way, and, unless the representation had been made, the dangerous act would never have been done. If this view of the law be correct, there is no doubt but that the facts which upon this record must be taken to have found by the jury bring this case within- the principle of those referred to. The defendant has knowingly sold the gun to the father, for the purpose of being used by the plaintiff by loading and discharging it, and has knowingly made a false warranty that it might be safely done, in order to effect the sale ; and the plaintiff, on the faith of that warranty, atid believing it to be true, (for this is the meaning of the term confiding,) used the gun, and there- by sustained the damage which is the subject of this complaint. The warranty between these parties has not the effect of a contract ; it is no more than a representation; but it is no less. The delivery of the gun to the father is not, indeed, averred, but it is stated that, by the act of the defendant, the prop&rty was transferred to the father, in order that the son might use it ; and we must intend that the plaintiff took the gun with the father's consent, either from his possession or the defendant's ; r*4141 ^°^ ^^ ^^'^ *° presume that the plaintiff *acted lawfully, and was ^ ■' not a trespasser, unless the contrary appear. We therefore think, that as there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated OONTKACT OP SAIiE. 283 by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured. We do not decide whether this action would have been maintainable if the plaintiff had not known of and acted upon the false representation; nor whether the defendant would have been responsible to a person not within the defendant's contemplation at the time of the sale, to whom the gun might have been sold or handed over. We decide that he is responsible in this case for the consequences of his fraud whilst the in- strument was in the possession of a person to whom his representation was either directly or indirectly communicated, and for whose use he knew it was purchased. Kule discharged. A MEEE REPRESENTATION BY THE SELLER OF THE QUALITY OF THE ARTICLE SOLD DOES NOT PURNISH A GROUND OE ACTION AGAINST THE SELLER ON THE REPRESENTATION TURNING OUT TO BE UNTRUE,- UN- LESS THE REPRESENTATION BE FRAUDULENT. I EAKLY V. GAKKET. Trinity Term, 1829.— E. 9 B. & 0. 928. Eng. Com. Law Reps., vol. 17. Assumpsit for money had and received. Plea, non-assumpsit. At the trial before Littledale, J., at the Spring Assizes for the county of Hants, 1829, it appeared that the action was brought to recover the sum of £111, 14s., 6d., paid to the defendants as the purchase-money of a piece of land which had originally been glebe land, belonging to the rectory of St. Mary, Southampton, and had been taken by a Canal Com- pany by virtue of an Act of Parliament passed in the year 1795. The rector, the Rev. P. North, did not receive the purchase-money, nor did he execute any conveyance of the land, but in the year 1799 granted a lease of that and other land to John Pox for ninety-nine years, if he the Eev. P. North should so long continue *rector and incumbent. The Company afterwards abandoned their canal, and Pox, in L '*1«'J 1813 gave up his lease to his son, who held the land until 1823, when he let one Cox into possession, under an agreement to pay £4 rent for the first year, and £5 for every succeeding year, with a power of re- entry in default of payment. This agreement recited that the land was held by lease of the Rev. P. North. Two year's rent had been paid by Cox to Fox. The former having built a house on the land, on the 25th of March, 1825, agreed to sell the property to W. Coward for a sum of £60, and on the 2d of April, 1825, a feoffment was executed, accompanied with livery of seisin, and a fine was afterwards levied. Coward after- wards became bankrupt, and the defendants were appointed his assignees. The plaintiff being indebted to the defendant Lankester, offered to sell him a freehold estate. Lankester accepted the offer, on condition that the plaintiff would purchase of him and his co-assignee the piece of canal land in question, to which the plaintiff agreed. By an agreement of the 5th of April, 1828, between the assignees and the plaintiff, reciting that 281 BOSS ON COMMERCIAL LAW. the plaintiff had paid the sum of £111, 14s. Qd. for the purchase of the piece of Tand in question, they, the assignees, agreed to convey to the plaintiff, his heirs and assignees, the messuage and tenement therein par- ticularly described, in which said conveyance should be contained only the following covenants on the part of Garret and Lankester ; that is to say, that they had not done any act, nor permitted any, whereby the said premises were affected in title or otherwise, that all persons claim- ing under them should do such further acts as might be lawfully and reasonably required by the plaintiff, his heirs and assigns, ami a^'his and their own expense; but so that the defendants or either of them should not be obliged to enter into any form of covenant whereby they might in any manner warrant the title to the said premises or, the validity of the commission of bankruptcy against Coward, or any proceedings taken under the same, he the plaintiff having agreed to accept a conveyance of such right or title as might be the defendants', with all faults and defects (if any). It was proved by the attorney who was employed by both parties to prepare this agreement, that before it was executed, Lankester r*4.1 fiT P'^o'^'ioed to *him the feoffment, and praecipe, and concord of fine, L J and stated that there were no other documents except the pro- ceedings in Coward's bankruptcy. The, same witness proved that the plaintiff then asked the defendants whether any rent had ever been paid, ' and that they replied that no rent had ever been paid, either by Coward or any person under whom he claimed. There was some evidence to show that the defendants did know that rent had been ' paid by Cox to Fox. On the 28th of May 1828, Fox not having received any rent for the last three years, demanded possession ; which being refused he commenced an ejectment against the tenants, obtained judgment, and executed a writ of possession. Upon this evidence it was contended on the part of the plain- tiff, that the consideration upon which the purchase-money had been paid having failed, the plaintiff was entitled to recover it back. The learned Judge was of opinion that mere non-communication was not sufficient, it must be fraudulent; and he told the jury, that if the defendants knew at the time when the agreement was executed, that rent had been paid to Fox, the non-communication of that fact was fraudulent, and that the plain- tiff was entitled to recover ; but if the defendants really believed that no rent had ever been paid or was payable to Fox, then the non-communi- cation was not fraudulent, and they were not liable : and he told theip to find for the plaintiff if they were of opinion that the defendants knew that rent had been paid or was payable to Fox, otherwise for the defend- ants. The Jury having found for the defendants, a rule nisi had been obtained for a new trial. G. F. Williams and Maret now showed cause. — It is clearly estab- lished, that where the purchase-money is paid and the conveyance exe- cuted, and the purchaser is evicted by a title to which the covenants do not extend, he cannot recover back the purchase-money. But if the de- fect do not appear upon the title-deeds, and the vendor is aware of the defect, and conceals it from the purchasers, he is guilty of a fraud, and the purchaser may maintain an action on the case in the nature of deceit ; but in such action it would be necessary to allege and prove that the CONTKACT OP SALE. 285 seller know of the defect and concealed it. Here the jury have found that the vendor did not know that any *rent was payable to Fo*. r-^.-. _-. They have therefore negatived fraud. '- -' Serjeant E. Lawes and Follett contra. — In Cripps v. Keade, 6 T. K. 606, the defendant, supposing himself the legal representative of lessee for years, sold the term, and delivered the lease to the plaintiff; but without any assignment or formal conveyance, saying, the premises were his, and if anything happened, he would see the plaintiff righted. And it was held, that the plaintiff might maintain an action against him for money had and received, the rightful administrator of tenant for years hav- ing ousted the plaintiff by ejectment. There Lord Kenyon said, the whole passed by parol, and it proceeded on a misapprehension by both parties that the defendant was the legal representative of the lessee, though it turned out afterwards he was not. So in this case there was a misapprehension by the defendants, who thought that rent had not been paid, if they did not fraudulently represent the fact to be so. Bayley, J. — It was left to the jury to say whether the defendants really believed that no rent had been paid, or was payable, and the jury found that the defendants did so believe. Their assertion on that sub- ject, therefore, was not fraudulent. I make no distinction between an active and a passive communication. If a seller fraudulently conceal that which he ought to communicate, it will render the contract null and void. But the authorities establish that the concealment must be fraud- ulent. The jury have found that the defendants had no knowledge that rent had been paid to Fox. Here was, therefore, no fraudulent concealment, and the plaintiff was not entitled to recover. LiTTLKDALE, J. — It has been held, that where a man sells a horse as his own, when in truth it is the horse of another, the purchaser cannot maintain an action against the seller, unless he can show that the seller knew it to be the horse of the other at the time of the sale : the scienter or fraud being the gist of the action where there is no warranty ; for there the party takes upon himself the knowledge of the title to the horse and *of his qualities; Springwell v. Allen, 2 East, 448. I r^A-to-, thought that this was an analogous case, and left it to the jury L J to say whether the concealment was fraudulent or not. Paeke, J. — The decisions show that the purchaser cannot recover unless he prove fraud on the part of the seller. Here the plaintiff piid his money for the land, to be taken with all faults ; Baglehole v. Waters, 3 Camp. 154; Schneider v. Heath, 3 Campb. 506; 1 Co. Lit. 384. That being so, I think that the learned Judge properly stated to the jury that mere non-communication was not suflScient to avoid the contract, but that it must be fraudulent. The question in substance left to the jury was, whether the concealment was fraudulent. They were told that if Lankester believed that rent had been paid or was payable to Fox, the non-communication of that fact was fraudulent. They have found by their verdictthat there was no fraudulent concealment. The rule for a new trial must therefore be discharged. Bule discharged. February, 1855. — 19 286 EOSS ON COMMERCIAL LAW. II. — OKMKOD V. HUTH. June 19, 1845.— B. 14 W. & M. 651. Case for a false representation. The declaration stated, that the plaintiff, to wit, on, &c., at the request of the defendants, bargained with the defendants to buy of them divers, to wit, 142 bales of cotton of them the defendants, and for a certain price, to wit, the price or sum of £1646, 15s. ; and the defendants then, during such bargaining, falsely, fraudu- lently, and deceitfully, exhibited to the plaintiff divers, to wit, 142 parcels of cotton, and falsely, fraudulently, and deceitfully represented and held out to the plaintiff, and induced the plaintiff to believe, that the same parcels were samples of the said cotton so bargained for, and were fair samples thereof, and that the said cotton was equal to and of the same descrip- tion with, and of equal and like quality with the said parcels so exhi- r*<11<:n ^^^^^ ^^ *aforesaid ; and thereupon the plaintiff, heretofore, to L J wit, on the same day and year, confiding in and relying upon the said parcels so exhibited, and the said representations and induce- ments of the defendants so made as aforesaid, at the request of the de- fendants, was induced to buy and did buy the said cotton of the defend- ants, at and for the said large price or sum of, to wit, £1646, 1 5s., and afterwards, to wit, on the same day and year, paid to the defendants the same sum of money for the same ; whereas, in truth and in fact, at the times of the said bargaining and sale by the defendants, the said parcels of cotton were not fair samples, nor were they samples of the said cotton so bargained for, nor was the said cotton equal to and of the same de- scription with, and of equal and like quality with the said parcels, but of inferior and much worse description and quality, and of much less value. And the plaintiff in fact says, that the defendants, by means of the premises, on the day and year aforesaid, falsely and fraudulently de- ceived the plaintiff in' the sale of the said cotton as aforesaid, by means whereof, &e. Pleas, first, not guilty ; secondly, that the plaintiff was not induced to buy, nor did he buy the said cotton or any part thereof, modo et forma. The replication took issue upon both pleas. At the trial before Coltman, J., at the Liverpool Spring Assizes, 1843, it appeared that the plaintiff, a cotton-spinner, hud, through a broker, bought several bales of cotton from the defendants, who were merchants at Liverpool. The usual method of purchasing cotton is by brokers. The selling broker always has samples by which he sells. Inspection from the bulk is quite unusual in purchases of cotton. The samples are drawn from a slit in the bale ; and if any part of the bale proves to be of an inferior quality to that found at the slit, it is said to be falsely packed, and is unmerchantable on that account. It is usual for the buying broker to have samples drawn by his own people from the bale, which redrawn samples he compares with those by which he has bought. In the present case, forty-five of the bales which* were purchased by the plaintiff were found to be falsely packed. Cotton is packed in layers, so r*4201 ^^^ *^^ edges are visible only at the top and bottom, *and along L J the narrow side. From the way in which the cotton is packed, OONTRACT OF SALE. 287 you can only take the sample from the long narrow Bide. In this case there were two, three, or more layers of good cotton like the sample ; but in the inner part the cotton was bad : in some instances there was not more than one layer of good, and the rest bad. A witness stated that this must have been done by design, and that the bales must have been falsely packed when purchased ; but there was no evidence to show that the defendants were cognizant of the fraud. It was proved that the cotton had come straight from the ship to the defendants' warehouse, and they were the consignees ; but whether they were the consignees on their own account or for others, did not appear. Upon this evidence, the defendants' counsel insisted that there was no case to go to the jury on which they could find for the plaintiff on the first issue, inasmuch as neither the defendants nor their brokers were proved to have had any knowledge of the alleged misrepresentation being false, or of the false packing, or to have acted in any respect against good faith or with any fraudulent purpose. The plaintiff's counsel, on the other hand, main- tained that the delivery of samples not corresponding with the bulk, was a false representation of the quality of the cotton, which must be considered in point of law as fraudulent, as being the statement of a fact which the party making it did not know to be true, and which in fact was not true, and which induced the buyer to make the purchase. The learned Judge directed the jury, that, unless they could see ground for inferring that the defendants or their brokers were acquainted with the fraud that had been practised in the packing, or had acted in the trans- action against good faith or with some fraudulent purpose, the defen- dants were entitled to the verdict on the first issue : whereupon the plaintiff's counsel excepted to the direction of the learned Judge, and insisted that proof of the defendants or their brokers being acquainted with the fraud that had been practised in the packing, or of their having acted against good faith, or with some fraudulent purpose, was not necessary to be given by him on that issue, and tendered a bill of excep- tions accordingly. The jury found a verdict for the defendants on the first issue, and were discharged by consent as to the other issues. rtfAn-in A writ of error having been brought, the case was now <- J argued by — Cowling, for the Plaintiff in error The plaintiff is entitled to succeed on this issue, although he is not able to prove that the defendants acted fraudulently or with knowledge that the representation was untrue, if it turned out in fact to be untrue. The plaintiff was induced to purchase by the appearance of the samples, and by the understanding that the cotton in the bales corresponded with the samples ; and if it does not correspond, he is entitled to succeed, although he is not able to bring home to the defendants a knowledge of the fraud. If, during a nego- tiation for a sale of goods, the vendor makes a representation, to induce the purchaser to complete the contract, of something which he does not know to be true, and which turns out to be false, a jury would be war- ranted in finding a verdict for the purchaser, although he cannot show that the vendor knew it to be untrue. It is not necessary to say that 288 ROSS ON COMMERCIAL LAW. they must find for the plaintiff; it is sufficient, in the present case, if they might have done so. If the vendor mis-states a fact, and by that mis-statement induces the purchaser to make the contract, he is liable for it, whether he knew it to be untrue or not. There is here every ingredient necessary to support an action. There is a wrong done, a damnum, and also an injuria; for the defendants have stated that which was not true, although they might not know it to be untrue. It is as much a legal fraud for a party to make a statement which he does not know to be true, as if he made a statement which he knew to be untrue, if it turns out to be so. In Eex v. Mawbey, 6 T. K. 637, Lawrence, J., says, — " Where a man swears to a particular fact, without knowing at the time whether the fact be true or false, it is as much perjury as if he knew the fact to be false, and equally indictable." So here, the defendants are equally liable if they mate a statement that the cotton in the bulk was the same as the sample, and it turns out to be otherwise, whether they knew it to be so or not. Policies of insurance are vitiated by any false representation, though made in ignorance of its being false : Groram v. Sweeting, 2 Saund. 200 b ; Carter v. Boehm, 3 r*4221 ^^^'^' ^^^^'' ^°"^gs°" ^- *Ilichardson, 1 W. Black. 463. The L -I rule applicable to insurances applies equally to other contracts. The law looks not to the motives of actions, but to the general result of what the parties do. The case of libel is analogous. In Chalmers V. Payne, 2 C. M. & E. 157, Lord Abinger, C. B., says,—" Where a publication is injurious on the face of it, it is a wrong from which malice will be inferred, and which makes it actionable, whether any injury was intended or not. That is a principle which is not confined to libel only, but is a general principle applicable to other cases." The same doctrine is laid down in nearly the same words in Fisher v. Clement, 10. B. & Cr. 472. There is, however, a motive in the vendor of goods, to induce the vendee to complete the contract ; and if a party is influenced by a statement of the vendor to complete a contract, and that statement turns out to be false or untrue, he is liabld It is no answer to say, that it cannot be shown that the party had an improper motive ; it is sufficient that such a motive might exist, if the result to the plaintiff be the same. It may be, and generally is, impossible to prove actual knowledge. In Pawson v. Watson, 2 Cowp. 788, Lord Mansfield, C. J., says, — " It is equally false for a man to undertake to say that which he knows nothing at all of, as to say that is true which he knows is not true." So here, it is not necessary to show that the party knew the statement to be false — it is enough to show that it is false, and leave him to explain how he came to make the statement. In Cooper V. Gardener, Carth. 90, which was case for falsely affirming that the goods were his own when they were the goods of anothei;, it was held that the declaration was good, without saying sciens they were the goods of another. That was a case where there was no fraud, and where the party did not know that he was making a false statement ; and yet it was held that the action lay. Grose, J., appears to have had this case in his mind, in delivering his judgment in Pasley v. Freeman, 3 T. E. 54. In Schneider v. Heath, 3 Camp. 508, Sir James Mansfield, CONTRACT or SALE. 283 C. J., says, — " It signifies nothing whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if, in point of fact, it turns out to be false." And in Smout v. Ilbery, 10 M. & W. *9, 10, Alderson, B., in delivering the judgment of the rmAno-i Court says, — " It is a wrong to state as true what the individual L J making such. statement does not know to be true, even though he does not know it to be false, but believes, without suf&cient grounds, that the statement will ultimately turn out to be correct. And if that wrong produces an injury to a third person, who is wholly ignorant of the grounds on which such belief of the supposed agent is founded, and who has relied on the correctness of his assertion, it is equally just that he who makes such assertion should be personally liable for its conse- quences." [He also cited Adamson v. Jarvis, 4 Bing. 66 ; Burrowes V. Lock, 10 Ves. 470; Fuller v. Wilson, 3 Q. B. 58; Cornfoot v. Powke, 6 M. W. 358; Collins v. Evans, 13 Law J. Kep. Q. B. 180; Kailton v. Matthews, 10 CI. & Fin. 934.] In Moens v Heyworth, 10 M. & W. 155, Lord Abinger, C. B., says, — " The fraud, which vitiates a contract and gives the party a right to recover, does not in all cases necessarily imply moral turpitude. There may be a misrepresentation as to the facts stated in the contract, all the circumstances in which the party may believe to be true." Parke, B., undoubtedly says, 10 M. & W. 157, " To give a right of action for that representation, it was, I think, essential to prove, that, by words or acts of the defendants or their agents, it was made falsely, and for the improper purpose of inducing the plaintiffs to purchase the goods ;" but the most that can be said of that is, that it is the opinion of one Judge against another, to show that a bare affirmation, without a warranty, is no cause of action. [TiNDAL, C. J., referred to Chandelor v. Lopus, Cro. Jao. 4.1 In a note upon that case, in Selw. Nisi Prius, 648, 9th ed., Mr. Selwyn appears to have thought that the affirmation there mentioned was made long prior to the contract, and was not connected with it. And in that case Anderson, J., was of the contrary opinion, and held that the deceit in selling the stone for a bezoar stone, when it was not, was a cause of action. Crompton, for the Defendant in error. — In all cases of the sale of chat- tels, the rule of cai/eat emptor applies so far as relates to the condition or quality of the goods, except there be a warranty or fraud in the seller. And there is no distinction *between legal and moral fraud in rt/ton cases of this kind. In Chandelor v. Lopus, the defendant sold L J to the plaintiff a stone, which he affirmed to be a bezoar stone, when it was not; and it was held that the bare affirmation that it was a bezoar stone, without warranting it to be so, was no cause of action. It is also there said, that " although he knew it to be no bazoar stone, it is not material." That, as Mr. Smith observes, in his Leading Cases, p. 77, has often been denied ; but it was not necessary to the decision of the case, the main doctrine of which has never been disputed. The main decision there was, that the plaintiff must either declare upon a contract, or, if he declare in tort for a misrepresentation, he must aver a scienter. 290 BOSS ON OOMMEROIAL LAW. In Budd V. Fairmaner, 8 Bing. 52, Tindal, C. J., points out the distinc- tion between a warranty and a representation. He says, — " Whatever a party warrants, he is bound to make good to the letter of the warranty, whether the quality warranted be material or not ; it is only necessary for the buyer to show that the article is not according to the warranty : whereas, if an article be sold by description merely, and the buyer afterwards discovers a latent defect, he must go further, allege the sci- enter, and show that the description was false within the knowledge of the seller." And after stating that, in Parkinson v. Lee, 2 East, 313, upon a sale of hops by sample, with a warranty that the bulk of the commod- ity answered the sample, although a fair merchantable price was given, it was held that the seller was not responsible for a latent defect unknown to him, but arising from the fraud of the grower from whom he purchased; he adds, " A party who makes a simple representation stands, therefore, in a very different situation from a party who gives a warranty." The present is simply the case of a representation, and therefore an action is not maintainable without a scienter. The case of Meyer v. Everth, 4 Camp. 22, turned entirely on its being a deceitful representation, and was not a sale by sample. In Freeman v. Baker, 5 B. & Ad. 797, Parke, J., says, — "The question of deceit was disposed ofby the jury, when they found that the defect in the ship was unknown to the defendants. Pol- hill V. Walter, 3 B. & Ad. 114, only decides, that if a person states what he knows to be untrue, and induces another to act upon it to his preju- r#4251 ^^°^' ^ *^''^^^^ ^^ ^^^ '^ committed." And Patteson, J., says, — L A II The decision in Polhill v. Walter, is put distinctly and point- edly on the -ground, that the party knew the representation he made to be false;" and Lord Tenderden particularly guards against any other construction, by saying, — "If the defendant had had good reason to believe his representation to be true, he would have incurred no liability; for he would have made no statement which he knew to be false : a case very different from the present." Dobell v. Stevens, 3 B. & Or. 623, and Lysney v. Selby, 2 Ld. Eaym. 1118, also show that knowledge of the fraud is a necessary ingredient in an action for a false representation. Springwell v. Allen, 2 East, 448 n.; Aleyn, 91, again shows that the scienter or fraud is the gist of the action where there is no warranty ; and that case was cited as law by Littledale, J., in Early v. Garret, 9 B. & Cr. 932. Williamson v. Allison, 2 East, 446, where it was held that the scienter need not be proved, was a case of express warranty; but that case also shows that, in cases of mere misrepresentation, the allegation of a scienter must be made and proved. Where there is a sale by sample, and there is no warranty or fraud, the seller is not liable for an unknown defect in the goods sold : Parkinson v. Lee, 2 East, 313 : Southern v. Howe, 2 Eoll. Kep. 5; Pasley v. Freeman, 8 T. E. 51; Jendwine v. Slade, 2 Esp. 572; Cornfoot v. Fowke, per Eolfe, B. : Com. Dig., « Action on the Case," (A. 8, 11,) (E. 4.) The opinion of a majority of the Judges of the Court of Exchequer, in Moens v. Heyworth, is in favour of the view contended for by the defendant. The opinion of Lord Abinger, C. B., seems to have been formed from his considering this case as governed by the same rule applicable to cases of policies of insurance," CONTRACT ar SALE. 291 which have always been considered as contracts uberrimee fidei. There is, however, a distinction between other representations and representa- tions of that nature. Fuller v. Wilson is not the oase'ef a representation as to the condition of goods sold. Collins v. Evans was the case of a mandatum, and the defendant was held not liable in the absence of knowledge or fraud : it is therefore a strong authority in favour of the defendants. In Taylor v. Ashton, 11 M. & W. 413, Parke, B., said, in the course of the argument, — "I adhere to the doctrine, that an action for deceit will not lie without *moral fraud ; and Lord Denman, rtMR-\ in the case last cited, (Fuller v. Wilson,) seems to admit that to L -' be so. If the party honafde believes the representation he made to be true, though he may not know it, he is not actionable." And, in deliv- ering the judgment of the Court, the same learned Judge says, — "It was contended by Mr. Knowles that it was not necessary moral fraud should be committed, in order to render these persons liable; for that if they made statements for their own benefit, which were calculated to induce another to take a particular step, and if he did take that step to his pre- judice in consequence of such statements, and such statements were false, the defendants were responsible, though they had not been guilty of any moral fraud. . . . From this proposition we entirely dissent; because we are of opinion, that, independently of any contract between the parties, no one can be made responsible for a representation of this kind, unless it be fraudulently made.'' The argument on the other side would go to the extent of abolishing altogether the use of the scienter in pleading ; for if it be well founded, there could be no case in which a scienter would be necessary. Smout v. Ilbery was not a ease of sale, but of agency, and is founded upon a doctrine first promulgated in some cases in the American courts. Alderson, B., was a party to all those judgments which have been cited from the Exchequer ; and he never supposed that in Smout v. Ilbery he was altering the law he had before declared. The law has said, that if the party means to protect himself from hidden de- fects, he must take a warranty, and he is not protected otherwise, unless he can make out fraud. There is no hardship in supporting the ruling of the learned Judge, since a vendee may always protect himself by re- quiring a warranty. The direction of the learned Judge, therefore, was perfectly correct, and was the only ruling he could properly have given. Cowling, in reply. — A distinction has been endeavoured to be drawn as to mandatories, and some such distinction has no doubt been taken by Mr. Justice Story; but his remarks on the subject were not meant to be universal, that it was in no case necessary to show actual knowledge of the falsehood of the assertion^ [He referred to Story's Equity Juris- prudence, ss. *193, 195, et seq., where the authorities are col- r^Acyr-i looted.] The question, according to the argument on the other L -I side, only comes to this — What is fraud ? There is no doubt as to the rule of caveat emptor; but if a party is misled by the statement of the vendor, and thrown off his guard by it, that rule ceases to be applicable. The question comes back to what is recognised as fraud in law. No doubt, if a purchaser can prove actual fraud in the sale, it is then quite clear that the vendor is liable. It is not meant to be said that every 292 ROSS ON CO.MMEKCIAL LAW. statement that a vendor ^makes, and which turns out to be wrong, is necessarily actionable ; but where a statement is made which is material to the contract, and it turns out to be untrue, and the vendee is inevi- tably misled by it, the vendor is liable for it. If the result to the person injured is the same, the law considers it the saine as if the motive had been fraudulent. The tendency of actions alone is material ; for instance, a man is liable in trespass for an involuntary damage to another. It is not contended that in all cases a scienter is superfluous, but only that in cases of contract, where there ought to be perfect fair dealing between the parties, it is unnecessary. Wherever there is neither a representation nor a warranty, there a scienter must be alleged and proved : Selwyn's Nisi Prius, p. 637. No answer has been given as to the inconvenience which it was urged would arise in adopting the test of actual knowledge, and the difficulty of proving it. All that the plaintiff below could be called upon to show, was the existence of the misrepresentation of a material fact. [Coltman, J. — Mr, Crompton and you do not agree uppn the meaning of "exhibiting the samples;" he says.it only means that they are fairly drawn from the bulk, but you say that the meaning mtist be that the bulk corresponded with the samples.] It must be taken upon the bill of exceptions that there was a misrepresentation, ^nd the Judge assumes it to be so. [Matile, J. — The utmost that you can argue is, that it was a, prima facie case of fraud, and therefore there was a point for the jury as to the fraud.] It is a prima facie caseof legal, not of moral fraud. The proposition now advanced is consistent with all the authorities which have been cited. There is no reason why policies of insurance, to which this doctrine is admitted to apply, should r*4281 ^^ construed *differently from other contracts. Chandelor v. L -I Lopus is a case of little or no authority ; and if it proves any- thing, it proves too much. It is impossible to say how much of it is law, and one part of it clearly is not. [Tindal, C. J. — It has been only overruled as to that part where it is said that knowledge was imma- terial,] Pasley v. Freeman, and that class of cases, were not cases of dealing' between the parties for the sale and purchase of goods ; they lire cases of agency, in which it is not disputed that a scienter and moral fraud must be proved. [Tindal, C. J. — It would be strange if there were not an analogy between cases of dealing and other cases of repre- sentation. The only difference is, that the one is stronger for the jury to find fraud in than the other.] In Budd v. Fairmaner, the represen- tation was of a trifling matter, which could not have influenced the party in making the contract. But where the representation is of a matter jnaterial to induce the party to purchase 'the goods, it is equivalent for this purpose to a warranty. Freeman v. Baker was the case of the sale of a ship with all faults, which would have the effect of putting the pur- chaser on his guard. In all such cases the rule of caveat emptor applies. In Lysney v. Sdby, Lord Holt, although be uses the word false, does not say false to his knowledge; and Powell, J., takes the same view; and they both say there was no fraud. In Springwell v. Allen, there was neither warranty nor representation. In Williamson v. Allison, there was an express warranty, and the scienter was not necessary. In CONTRACT OF SALE. 293 Taylor v. Ashton, there was no dealing betwpen the parties, and there the representation was made before, and not at the time of the contract. Looking at all the cases together, the authorities are strong in favour of the plaintiif. The judgment of the Court was pronounced by TiNDAL, C. J. — ^We think the direction of the learned Judge was perfectly correct. The action is brought for a false and fraudulent representation, alleged to have been made by the defendants, on the sale of certain cotton to the plaintiffs, that the cotton was of the same description, and of equal and like quality with the sample *by them exhibited, whereas r^^jno-i in fact it was not; the action not being brought upon an L J express warranty, nor any express allegation being laid in the declara- tion, that the defendants knew at the time that the bulk of the cotton did not equal in description or quality the sample which, had been so exhibited. Upon the trial, the learned Judge directed the jury, that, unless they could infer that the defendants or their brokers were acquainted with the fraud that had been practised in the packing, or had acted in the transaction against good faith, or with some fraudulent purpose, the defendants were entitled to the verdict ; and we think this the proper direction. The rule which is to be derived from all the cases appears to us to be that, where, upon the sale of goods, the purchaser is satisfied without requiring a warranty (whioh is a matter for his own consideration), he cannot recover upon a mere representation of the quality by the seller, unless he can show that the representation was bottomed in fraud. If indeed the representation was false to the knowledge of the party making it, this would in general be conclusive evidence of fraud ; but if the representation was honestly made, and believed at the time to be true by the party making it, though not true in point of fact, we think this does not amount to fraud in law, but that the rule of caveat emptor applies, and the representation itself does not furnish a ground of action. And although the cases may, in appearance, raise some difference as to the effect of a false assertion or representation of title in the seller, it will be found, on examination, that in each of those cases there was either an assertion of title embodied in the contract, or a representation of title which was false to the knowledge of the seller. The rule we have drawn from the case appears to us to be supported so clearly by the early, as well as the more recent decisions, that we think it unnecessary to Jbring them forward in review ; but satisfy our- selves with saying, that the exception must be disallowed, and the judg- ment of the Court of Exchequer affirmed. Judgment affirmed. *WHERE THE DESCRIPTION OF AN ARTICLE SOLD RELATES TO A rtt^nn-i MATTER OF OPINION IN RESPECT OF WHICH THERE CAN BE NO L "' CERTAIN KNOWLEDGE, IT IS NOT PRESUMED OP ITSELF TO BE A 294 BOSS ON OOMMEROIAL LAW. WAERANTT, BUT IS A QUESTION TO BE DETERMINED WITH REFERENCE TO THE WHOLE CIRCUMSTANCES CONNECTED WITH THE SALE, WHE- THER IT WAS INTENDED AS A WARRANTY OR AS AN EXPRESSION OF OPINION MERELY, BUT IF THE DESCRIPTION RELATES TO A MATTER OF FACT WHICH IS WITHIN THE POWER OF KNOWLEDGE OF THE SEL- LER, IT IS TAKEN TO BE A WARRANTY OF THE FACT AFFIRMED. POWEE V. BAEHAM. Jan. 14, 1836.— E. 4 Ad. & EU. 473. Eng. Com. Law Reps., vol. 31. Assumpsit The declaration stated that, in consideration that the plaintiff, at the defendant's request, would buy of him four pictures at a certain price, to wit, &c., the defendant "promised the plaintiff that the said pictures were painted by a certain artist or master in painting, called or named Ganaletti, otherwise Canaletto." Breach, that the said pictures, " were not, nor was either of them, painted by the said artist or master called or named Canalletti, otherwise Canaletto," whereby the said pictures were and are of little or no ^se, &c., and the plaintiff lost the benefits, &e. Plea, non-assumpsit. On the trial before Cole- ridge, J., at the sittings in Middlesex after last term, it appeared that the defendant sold the pictures to the plaintiff for £160, and, at the time of the sale, gave the following bill of parcels and receipt : — " Mr. N. Power, " Bought of J. Barham, "May 14, 1832. " Four pictures, Views in Venice, Canaletto, £160 " Settled by two pictures, £50 "And a bill at five months, 110 £160 "J. Barham." r*4311 *'^ carver and gilder, who had been employed by the plain- •- -I tiff to procure original pictures for him, gave evidence of pre- vious representations by the defendant to him and to the plaintiff, that the pictures were genuine, some doubt, however, was raised as to the expressions actually used. The witness stated that the pictures were iu the manner of Canaletti, and, at the time of the sale, appeared to him worth the money. A witness experienced in paintings stated that he considered the pictures not to be Canaletti's, and valued them at about £8 each j and some other evidence was given on this point. For the defendant it was contended that the bill of parcels was not a warranty, but only an expression of opinion ; and Jendwine v. Slade, 2 Esp. N. P. C. 572, was cited. The learned judge, in summing up, told the jury that the pictures were admitted not to be Canaletti's, and that the only question on the pleadings was, whether the promise was made ; and he submitted to their consideration, upon the whole of the evidence, whe- ther the defendant had made a representation, as part of his contract, oontrAot of sale. 295 that the pictures were genuine, not using the name of Canaletti as mat- ter of description merely, or as an expression of opinion upon some- thing as to which both parties were to exercise a judgment, but taking upon himself to represent that the pictures were Canaletti's. His lord- ship noticed the argument on behalf of the defendant, as to the bill of parcels ; and said that the words of Lord Kenyon, in the case referred to must be considered, not as a general rule of law, but as a direction to the jury on the circumstances of that case. The jury found a verdict for the plaintiff, saying, "We think the bill of parcels is a warranty." Sir J. Campbell, Attorney-General, now moved for a new trial on the ground of misdirection. The question was. Whether the defendant had entered into a binding contract that the pictures were Canaletti's ? The jury ought to have been told that the words in the bill of parcels did not, amount to a warranty. Jendwine v. Slade, 2 Esp. N. P. C. 572, was a stronger case against the defendant than this, because the artists' names there were inserted in the catalogue of sale. But Lord Kenyon said, " It was impossible to make this the case of a warranty ; *the r^^onn pictures were the work of artists some centuries back, and there L -■ being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What then does the catalogue import ? That, in the opinion of the seller, the picture is the work of the artist whose name he has afBxed to it. The action in its present shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question, leaves the determination to the judgment of the buyer, who is to exercise that judgment in the purchase." It is not necessary to contend here, that there could not be a warranty of a pic- ture as Canaletti's; but there was no evidence of any. No fraud is im- puted. No positive undertaking could be implied, from the bill of par- cels, that the pictures were by Canaletti. It only implied that they passed for and were believed to be that painter's ; that the vendor had bought them as his, and thought them so. It cannot be contended that every description given in a bill of parcels is a warranty. [CoI/ERIDQE, J. — Do you say that the writing ought not to have gone to the jury ?] Not as evidence, by itself, of a warranty. [Coleridge, J. — I said that it was to be considered with all the attendant circumstances.] Lord Denman, C. J. — I think that the case was correctly left to the jury. We must take the learned judge to have stated to them that the language of Lord Kenyon in Jendwine v. Slade, 2 Esp. N. P. C. 572, was merely the intimation of his opinion upon such a contract as was then before him. It may be true that, in the case of very old pictures, a person can only express an opinion as to their genuineness ; and that is laid down by Lord Kenyon in the case referred to. But the case here is that pictures are sold with a bill of parcels, containing the words " Four pictures. Views in Venice, Canaletto." Now words like these must de- rive their explanation from the ordinary way in which such matters are transacted. It was, therefore, for the jury to say, under all the circum- stances, what was the effect of the words, and whether they implied a 296 ROSS ON OOMMEROIAL LAW. warranty of genuineness, or conveyed only a description, or an L -I ^expression of opinion. I think that their finding was right : Canaletti is not a very old painter. But, at all events, it was proper that the bill of parcels should go to the jury with the rest of the evi- dence. LiTTLEDALE, J. — The case was rightly sent to the jury ; though, as to their decision, I think that all the auctioneers in London would be alarimed if they thought that such words as these were to be understood as a warranty. i Williams. — The words in question might be a mere expression of opinion, or might amount to a warranty ; it was for the jury to say which they imported. The language ascribed to Lord Kenyon seems to imply that, if a master is very old, there can be no means of saying that a certain picture is his, and therefore no warranty. The Attorney- Greneral admits that this is not correctly applicable to the present case. If a person will undertake to sell these things as the productions of a particular master, he must take the consequences. Coleridge, J., concurred. Kule refused. The case of Jendwine v. Slade, 2 Esp. 512, was an action brought to recover damages on the sale of two pictures, one of which was said to be a sea-piece by Claude Lorraine, the other a fair by TenierSj which the defendant had sold to the plaintiff as originals, when in fact they were copies. The defence relied on was, that they were sold under a catalogue, not amounting to an absolute warranty, but upon which the buyer was to exercise his own judgment. For the plaintiff it was argued that the name of the artist put opposite any picture in a catalogue was a warranty ; and if the article sold did not correspond with it, it avoided the sale; and as to the transaction in respect to paying the money, that the plaintiff was deceived, but had brought his action as soon as he discovered the fraud. r*4341 ^^'''^■'^i °^ f^^ most eminent artists and picture dealers *were called, who '■ -I differed in their opinions respecting the originality of the pictures. When the evidence was closed. Lord Kenyon said, — " It was impossible to make this the case of a warranty ; the pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore or not. What then does the catalogue import ? That, in the opinion of the seller, the picture is the work of the artist whose name he has affixed to it. The action in its present shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the determination to the judgment of the buyer, who is to exercise that judgment in the purchase." AN EXPERSS WARRANTY AS TO ONE PARTICULAR QUALITY CONSTI- TUTES AN IMPLIED EXCLUSION OP WARRANTY OF EVERY OTHER QUALITY. BUDD V. FAIEMANEE. Nov. 14, 1831.— E. 8 Bing. 48. Eng. Com. Law Reps., vol. 21. The plaintiff sued on an alleged breach of warranty in the sale of a hotse. i OONTEAOT or SALE. 297 The proof of the warranty consisted of the following receipt, which was drawn up by the plaintiff's servant, and signed by the defend- ant : — " Received of Mr. Budd £10 for a gray four-year old colt, warranted sound in every respect." The complaint was, that the colt, which the plaintiff had purchased to match another in his possession, was only three years old ; as to which, the evidence seemed somewhat conflicting ; but the Chief Justice, before whom the cause was tried, thinking the warranty applied to soundness only, and that the age was a mere matter of description, the plaintiff was non-suited. WiiiDE, Serjt, moved to set aside the nonsuit, on the ground that the defendant's warranty included the age as well as the *soundness r^.An^-i of the animal. By the very act of sale the vendor warrants L -I that the article is such as be professes to sell, and the purchaser proposes to buy. Thus, in G-ardiner v. Gray, 4 Campb. 144, where the defend- ant undertook to sell the plaintiff waste silk, and sent an article not saleable under that denomination. Lord Ellenborough said, "The inten- tion of both parties must be taken to be, that it shall be saleable in the market under the denomination mentioned in the contract between them : the purchaser cannot be supposed to buy goods to lay them on a dung- hill." In Bridge v. Wain, 1 Stark, 504, it was held, that where goods sold were described in the invoice as scarlet cuttings, a warranty was to be inferred that the goods answered the known mercantile description of scarlet cuttings. So in Yates v. Pym, 6 Taunt. 446, where the defend- ant sold what he described as prime singed bacon, he was not allowed to show a custom in the trade to receive bacon to a certain degree tainted, as prime singed bacon ; and the bacon in question being tainted, the plaintiff retained his verdict. Here the purchaser proposed to buy a four-year-old horse for tho purpose of matching another : a three-year- old colt was unfit for such a purpose, or even for general employment. The seller professed to sell a four-year-old ; and having altogether failed, he is liable in damages for his breach of contract : for the particular warranty as to soundness does not supersede the general warranty that tho thing sold is what the vendor professes to sell. Lord Coke says, " If a man make a feoffment by dedi and in the deed doth warrant the land against J. S. and his heirs, yet dedi is a general warranty during the life of the feoffor," Co. Lit. 384. And in policies of insurance, a particular warranty does not narrow any general or implied warranty ; as that the ship is seaworthy, or the like. If the defendant had sold a gelding or a stallion warranted sound, would it have been a performance of his contract to have delivered a mare ? The Court granted a rule nisi, against which — Andrews and Russell, Serjts., showed cause. The instrument produced is a mere receipt, and must be construed according to the intention which appears on the face of it. *From r^^^oc-i the position of the word warranted, it is plain that soundness ^ -" was all that the defendant proposed* to warrant, and that age was mere matter of description ; if it had been proposed to warrant age aa well 298 ROSS ON COMMEECIAL IiAW. as soundness, the instrument sliould have run " warranted four years old, and sound." The cases relied on are not cases of warranty, but of gene- ral contract ; and doubtless a vendor must deliver an article, answering, in all material points, the description of the article he professes to sell. But a horse, unexceptionable in other respects, does not materially vary from the description given of him if he turn out to be three years old instead of four, more especially as the difference between the two ages is perceptible by inspection of the mouth, which excludes the probability of any intentional misrepresentation. In Dunlop v. Waugh, Peake, N. P. 0. 167, it was held that what the vendor says about the age of an animal, is not a warranty of the age, for it may be a mere statement of his belief. In Richardson v. Brown, 1 Bing. 344, the defendant's advertisement was, " To be sold, a black gelding five years old ; has been constantly driven in the plough; warranted;" and it was holden that the warranty applied to soundness only. So, in Dickenson v. Gapp, (tried before Dallas, C. J., Middlesex sittings, 1821,) the plaintiff sued for a breach of warranty, in proof of which he adduced the following receipt : — " Received of Mr. Dickenson £100 for a bay gelding, got by Cheshire Cheese ; warranted sound ;" and then showed that the horse was not got by Cheshire Cheese. Dallas, C. J., held that the warranty was confined to soundness, and nonsuited the plaintiff, who never moved to set aside that decision. So in Jendwine v. Slade, 2 Esp. 572, it was held, that putting down the name of an artist in a catalogue as the painter of a picture, is not such a warranty as will subject the party selling to an action, if it turn out that he might be mistaken, and it was not the work of the artist to whom it was attributed. Upon a mistaken repre- sentation a party is not liable, unless he be guilty of fraud, but upon a warranty he is liable at all events. Williamson v. Allison, 6 East, 446. If the. defendant be held to have warranted the age, he may, with as much justice, be contended to have warranted the colour of the horse, or any other quality equally obvious to the sense. r*4S71 *^il'^ aud Spanhie, Serjts — Richardson v. Brown was not L -"an action on a warranty, but for the price of a horse which the defendant had kept and used; and the alleged warranty being apparently resorted to by an after-thought for the purpose of eluding payment, was not entitled to much favour. There is no printed report of Dickenson V. Grapp ; and as to the age of the horse being apparent upon inspection, it does not appear but that the plaintiff purchased without inspection on the recommendation of the defendant. The principle which applies to such transactions is clearly laid down in Shepherd v. Kain, 5 B. & A. 240, where the defendant sold what he described to be " a copper-fast- ened vessel; to be taken with all faults." The Court held, "with all faults must mean, all faults which it may have consistently with its being the thing described;" and that as the ship was not copper fastened, the plaintiff was entitled to recover for a breach of warranty. TiNDAL, C. J. — In this case a written instrument was produced by the plaintiff to show the nature of the contract between him and the defendant, and we are to interpret that instrument like all others, accord- ing to the intention of the parties. The instrument appears to be a CONTRACT OP SALE. 299 receipt for £10 "for a grey four-year-old colt, warranted sound." I should say that, upon the face of this instrument, the intention of the parties was to confine the warranty to soundness, and that the preceding statement was matter of description only. And the dificrence is most essential. Whatever a party warrants, he is bound to make good to the letter of the warranty, whether the quality warranted be material or not: it is only necessary for the buyer to show that the article is not according to the warranty : whereas, if an article be sold by description merely, and the buyer afterwards discovers a latent defect, he must go further, allege the scienter, and show that the description was false within the knowledge of the seller. And where there is an express warranty as to any single point, the law does not beyond that raise an implied warranty that the commodity sold shall be also merchantable. There- fore, in Parkinson v. Lee, 2 East, 313, upon a sale of hops by sample, with a warranty that the bulk of the commodity answered the sample, although a *fair merchantable price was given, it was held thatY^.„„- the seller was not responsible for a latent defect, unknown to L J him, but arising from the fraud of the grower from whom ho purchased. A party who makes a simple representation stands, therefore, in a very different situation from a party who gives a warranty. And if so, how can I say that this distinction was not present to the mind of the defend- ant in this case ? When he sells a grey four-year-old colt, warranted sound, he means to say that he will be responsible for the soundness, but that the rest is only matter of representation, for which he will not be answerable, unless it be shown to be false within his knowledge. Many cases have been referred to, and some stress has been laid on the effect of the word dedi when contained in a grant ; but, according to Lord Eldon, in Browning v. Wright, 2 B. & P. 21, words of that nature " import a contract in law, the effect and meaning of which would be affected by the subsequent words of the indenture ;" and in the cases relied on for the plaintiff, the sellers had delivered commodities essen- tially different from those which they had professed to sell. Kichardson V. Brown and Dickenson v. Gapp are authorities in point for the de- fendant. Gaselie, J., concurred. BosANQUET, J. — In every case where the contract appears on a writ- ten instrument, the instrument must be construed according to the intent of the parties. As, where the dealing is by a contract note, the article delivered must agree with the terms of the note; or, where a ship is insured, it must correspond with the warranties contained in the policy. What is the instrument here? Not a contract of sale, but a mere receipt, describing an antecedent contract. Are we to infer from the terms used, that the party had expressly contracted the animal should be four years old ? The collocation of the word warranted shows that such was not the intention of the parties. Kichardson v. Brown pro- ceeded on this principle, and Dickenson v. Gapp is almost the same case as the present. Interpreting this instrument, therefore, according to the intention of *the parties, I think it clear that the warranty was r-^^-Aoq-i confined to soundness. L J 300 ROSS ON COMMERCIAL LAW. Alderson, J. — It is not necessary to refer to Richardson v. Brown, because we can see here, from the collocation of the word warranted, that it is confined to the quality of soundness. Eule discharged. WHERE A SELLER HAS BEEN GUILTY OP PKAtrDULENT REPRESENTATION IN REGARD TO AN ESSENTIAL INDUCEMENT TO THE SALE, THE PUR- CHASER, ON DISCOVERING THE FRAUD, IS ENTITLED TO RESCIND THE CONTRACT, BUT IF, AFTER DISCOVERING THE FRAUD, HE RETAIN THE ARTICLE AND DEAL WITH IT AS HIS OWN, HE WILL BE HELD TO HAVE RATI!FIED THE CONTRACT, AND THE DISCOVERT OF AN ADDITIONAL INCIDENT OF FRAUD WILL NOT ENTITLE HIM THEREAFTER TO REPU- DIATE THE CONTRACT. / CAMBELL V. FLEMING. April 18, 1834.— E. 1 Ad. & BU. 40. Eng. Com. Law Reps., vol. 28. Assumpsit for money had and received. Plea, the general issue. On the trial before Denman, C. J., at the Sittings after last Hihiry Term, at Guildhall, the plaintiiF proved that, in consequence of an advertise- ment in the newspapers, he entered into a negotiation for the purchase of some shares in a supposed joint-stock mining company, and, upon repre- sentations made to him by the agents of the defendants, became the pur- chaser of shares to a large amount. After the purchase was concluded, he discovered that the statements in the advertisement, and many of the re- presentations made to him in the course of the negotiation, were fraudulent, and that the whole scheme was a deception. The real sellers of the shares were the defendants. The action was brought to recover back the money paid for the shares. On the cross-examination of the plaintiff's witnesses, it appeared that, subsequently to the above' transactions, the plaintiff formed a new company, by consolidating the shares originally r*440n P"'"''*^^^ ^y ^™ ^^'^ ^°^^ *other property ; and he sold shares L -J in the new company, thereby realizing a considerable sum of money. Evidence was further given on the part of the plaintiff, to show that, at the time of the otiginal purchase, an outlay of ^635,000 was repre- sented to him to have been made by the supposed mining company in the purchase of property, which outlay in fact had not amounted to £5000, and that this part of the fraud was not discovered by him till after he had disposed of the shares in the new company. The Lord Chief Justice nonsuited the plaintiff. F. Pollock now moved for a rule to show cause why the nonsuit should not be set aside and a new trial had. The plaintiff is entitled to recover the money paid for the shares, the consideration for the payment having totally failed. No contract can arise upon a mere fraud ; and the trans- action upon which the shares were purchased, is shown by the evidence to have been a fraud ah initio. Then it cannot be said that the plaintiff, by his subsequent proceedings, has adopted the contract : for there never CONTRACT OP SALE. 301 was any contract in existence. But, supposing the plaintiff had adopted a contract, he was entitled to repudiate it on discovering a fraud of which he was hefore ignorant. Any act of the plaintiff, which is relied upon as showing a waiver of his objection to the fraud, must he shown to have been performed by him after full knowledge of that fraud. LiTTLEDALE, J. — It seems to me that this nonsuit was right. No doubt there was, at the first, a gross fraud on the plaintiff. But after he had learned that an imposition had been practised on him, he ought to have made his stand. Instead of doing so, he goes on dealing with the shares ; and, in fact, disposes of some of them. Supposing him not to have had, at that time, so full a knowledge of the'-fraud as he afterwards obtained, he had given up his right of objection by dealing with the pro- perty after he had once discovered that he had been imposed upon. Parke, J. — I am entirely of the same opinion. After the rtnAA-i-i •plaintiff, knowing of the fraud, had elected to treat the transac- L -> tion as a contract, he had lost his right of rescinding it; and the fraud could do more than entitle him to rescind. It is said that another fraud- ulent representation was subsequently discovered. I cannot, however, perceive that the evidence goes far enough to show that such a represen- tation 'v^as, in fact, made. Patteson, J. — No contract can arise out of a fraud ; and an action brought upon a supposed contract, which is shown to have arisen from fraud, may be resisted. In this case the plaintiff has paid the money, and now demands it back, on the ground of the money having been paid on a void transaction. To entitle him to do so he should, at the time of discovering the fraud; have elected to repudiate the whole transaction. Instead of doing so, he deals with that for which he now says that he never legally contracted. Long after this, as he alleges, he discovers a new incident in the fraud. This can only be considered as strengthen- ing the evidence of the original fraud; and it cannot revive the right of repudiation which has been once waived. Lord Denman, C. J I acted upon the principle which has been so clearly put by the rest of the Court. There is no authority for say- ing that a party must know all the incidents of a fraud before he deprives himself of the right of rescinding. Eule refused. *WHERE THE DESCRIPTION OF AN ARTICLE SOLD IS WRONG IN A MATERIAL AND STTBSTANTIAL POINT, AND SO FAR AEEECTINQ L -' THE SUBJECT-MATTER OF THE CONTRACT, THAT IT MAT REASONABLY BE SUPPOSED THAT BUT FOR SUCH MISDESCRIPTION THE PURCHASER WOULD NEVER HAVE ENTERED INTO THE CONTRACT, ALTHOUGH NOT PROCEEDING FROM FRAUD ON THE PART OF THE SELLER, THE PUR- CHASER MAY RESCIND THE CONTRACT. FLIGHT V. BOOTH. Nor. 24, 1834.— B. 1 Bing. N. 0. 370. Eng. Com. Law Reps., vol. 27. This cause having, by consent of parties, been referred to arhitra- Februart, 1855. — 20 302 ROSS ON COMMERCIAL LAW. tion under an order of Nisi Prius, the arbitrator found, in a special award — That the declaration in this action was for money paid by the plaintiff for the defendant's use, and for money received by the defendant to the plaintiff's use, to which the general issue was pleaded ; and the action was brought to recover the sum of £100 paid by the plaintiff as a deposit on the purchase by auction of certain premises situated in the Piazza, Covent Garden, and held under a lease from the Duke of Bedford. The premises were described in the printed particulars of sale, on the back of which the plaintiff had signed the memorandum of the contract, as cal- culated for an extensive business in carpets, haberdashery, drapery, paper, floor-cloth, upholstery, grocery, tea trade, or coach-building. It was also stated in the same particulars, that, by a clause in the lease, " the lessee is to insure the premises for £3000, and no offensive trade is to be carried on ; they cannot be let to a coffee-house keeper, or working hatter." Printed conditions of sale followed ; and by the sixth it was provided, that, if through any mistake, the estate should be improperly described or any error or mis-statement be inserted in that particular, such error or mis-statement should not vitiate the sale, but the vendor or purchaser, as the case might happen, should pay or allow a proportion- ate value according to the average of the whole purchase-money, as a compensation either way. By the last condition it was, among other things, provided, that if the purchaser should neglect or fail to complete P^ , ,q-| the purchase within a day, which had expired *previously to the L J commencement of the action, the deposit money should become forfeited to the vendor. The sale took place, and the contract was signed, on the 16th of May, 1833. On the 10th of June, an abstract of title was delivered by the vendor's solicitor to the plaintiff's, which con- tained the following note of the proviso hereinafter set out, — " Proviso for re-entry in case of non-payment of rent, or non-performance of cove- nants, or carrying on any particular trade without a license for that pur- pose under the hand of the Duke of Bedford first had and obtained." At the date of the sale and contract the lease was a valid and subsisting one. The plaintiff's solicitor made several objections upon the abstract to the completion of the purchase, which the arbitrator found to have been either insufficient in themselves or satisfactorily removed ; but the plaintiff's solicitor never required to see the lease. And on the 15th of July, the plaintiff, so far as in him lay, rescinded the contract ; and hav- ing demanded back again the deposit, without success, brought the action in question. At the trial of the cause the lease was produced, and appeared to contain the following proviso: — "Provided always, that if the yearly rent hereby reserved; or any part thereof, shall be unpaid for fifteen days next after any of the said days of payment; or if, at any time during the continuance of the said term, the trades or businesses of a brewer, baker, sugar-baker, vintner, victualler, butcher, tripe-seller, poulterer, fishmonger, cheesemonger, fruiterer, herb-seller, coffee-house keeper, distiller, dyer, brazier, smith, tinman, farrier, dealer in old iron, pipe-burner, tallow-chandler, soap-boiler, working hatter, or any or either OONTRAOT OF SALE. 303 of them, shall be used or exercised in or upofl the said demised premi- ses, or any part thereof; or any auctions or public sales of household goods, or other things, be made in or upon the said premises, or any part thereof; or tho same be used as a shop or place for the sale of coals, potatoes, or any provisions whatever; or if the lessees, their executors, administrators, or assigns, shall, at any time during the last seven years of the said term, assign or set over this indenture, or any part of the premises, and their estate and interest therein, without a license for that purpose under the hand of the said Duke, his heirs or assigns; or on broach or non-performance of *any or cither of the covenants r^AAA-i and agreements hereinbefore contained; then and thenceforth, L J and in either of such cases, it shall be lawful for the said Duke, his heirs and assigns, to re-enter." It was not proved before the arbitrator that the plaintiff, at the time of the sale, or of the signing the contract, had ever seen the lease or heard it read, or that he or his solicitor were aware of the terms of the proviso until the day of the trial. Evidence was offered, on the part of the defendant, to prove that the lease was produced at the sale, and that the proviso had been publicly read. That evidence was objected to on the part of the plaintiff's counsel; the arbitrator received it only to negative any wilful concealment or misrepresentation by the defendant of the terms of the lease ; and found that none such was proved against him. No claim was made by the defendant, before the arbitrator, for damages for the non-performance of the plaintiff's contract, nor any attempt to compel a specific performance. Upon these facts, the arbitrator found that the plaintiff had good cause of action against the defendant, and ordered that the verdict should be reduced to the sum of £100; for which sum, and the costs of the cause when taxed, he directed that the plaintiff should be at liberty to sign judgment on the 6th day of Trinity Term then next ensuing, and not before. And if the facts above set out did not authorize the plaintiff, in the opinion of the Court, to rescind the contract of sale, then the arbitrator directed the verdict to bo entered for the defendant, and that he should be at liberty to enter up the judgment for himself. Taddi/, Serjt., obtained a rule nisi to enter up judgment for the defendant under this award, contending, that if there had been any mis- description of the premises at the auction, it was a misdescription origi- nating from inadvertence, and not from fraud or any intention to mis- lead; and that, under such circumstances, though the plaintiff might require compensation for any difference in value between the representa- tion and the reality, yet he could not rescind the contract; Duke of Nor- folk V. Worthy, 1 Campb. 337; Wright v. Wilson, 1 Mood. & |-,445-i Eob. 207 ; *Stewart v. Alliston, 1 Mer. 26 ; Trower v. New- •- -■ oombe, 3 Mer. 704. Wilde, Serjt., showed cause Where the misdescription, whether proceeding from intention or inadvertence, is such that the purchaser finds himself in possession of a thing materially differing from that which he proposed to buy, he is at liberty to rescind the contract ; Jones V. Edney, 3 Campb. 285; Waring v. Hoggart, 1 Ey. & Mood. 39; Co- 304 KOSS ON COMMEEOIAIi LaV. verley v. Bnrrell, 5 B. & Aid. 257; Brealey v. Collins, 1 Young, 317. Here the plaintiff could never have inferred from the particulars prohi- biting offensive trades and the business of coffee-house keeper and hatter, that he should be prevented from selling fruit or vegetables in a district devoted to that line of business. There is no principle upon which, in such a case, compensation can be calculated ; Sherwood v. Robins, 1 M. & M. 194. The object of the purchaser is entirely defeated, and he can only be indemnified by rescinding the contract. In Tomkins v. White, 3 Smith, Rep. 439, Lord EUenborough said, "A little more fairness on the part of auctioneers in the forming of their particulars would avoid all these inconveniences. There is always either a suppression of the fair description of the premises, or there is something stated which does not belong to them ; and, in favour of justice, considering how little knowledge the parties have of the things sold, much more particularity and fairness might be expected of them." In The Duke of Norfolk v. Worthy, the jury found that the misdescription was wilful. Trower v. Newcombe only decided that bona fides is not to be impeached by the mere babble of an auction room. But Stewart v. AUiston is in favour of the plaintiff. Taddy and Oressmdl in support of the rule. As to the possibility of the plaintiff's intending to deal in vegetables, the alleged misdescription could not have misled him, for the house is not described as situated in the market, but in the piazza ; and the rule caveat emptor applies. The lease was read by the auctioneer, and the plaintiff might have required to inspect it. Even where property is held under a lease containing covenants contrary to custom, a purchaser is not entitled to compensation r*4.d.fii *^^ ^^ knew of the existence of the lease ; Hall v. Smith, 14 L **°J Ves. 426; Walter v. Maude, 1 Jac. & Walk. 181. The arbitra- tor having found that there- was no fraud, the plaintiff could not rescind the contract ; Oldfield v. Round, 5 Ves. 508 ; Scott v. Hanson, 1 Sim. 13. If there be any misdescription, the conditions of sale expressly entitle him to compensation, and Drewe v. Hanson, 6 Ves. 675, shows the principle on which it may be estimated. Cur. adv. vuU. TiNDAL, C. J. — The question in this case arises upon the special facts found by the arbitrator on his award : and it is this, whether the plain- tiff was at liberty under the circumstances stated in the award to consi- der the contract of sale to be rescinded. For if rescinded, the plaintiff is entitled to recover the deposit as money had and received to his use ; but if the contract is still unrescinded and open, the present action is not maintainable, but whatever injury the plaintiff has sustained by the misdescription must form the subject of a special action on the contract of sale. Now the arbitrator having expressly found that no wilful concealment or misrepresentation was proved against the defendant, we must consider the case as standing clear from any fraud, and take the misdescription of the premises to have originated either from ignorance, inadvertence, or accident. The question, therefore, is narrowed to the single point, whether the misdescription in the printed particulars of sale of the premises to be CONTEAOT OF SALE. 305 Bold was such as to entitle the purchaser to rescind the contract alto- gether; or whether it was such as was contemplated by the sixth condi- tion of the printed particulars of sale, by which it was provided, that "if through any mistake the estate should bo improperly described, or any error or mis-statement be inserted in that particular, such error or mis-statement should not vitiate the sale thereof j but the vendor or pur- chaser, as the case might happen, should pay or allow a proportionate value according to the average of the whole purchase-money as a com- pensation, either way." It is extremely difficult to lay down, from the decided oases, any cer- tain definite rule which shall determine what mis-statement *or r^^^ j^-i misdescription in the particulars shall justify a rescinding of the L J contract, and what shall be the ground of compensation only. All the cases concur in this, that where the mis-statement is wilful or designed, it amounts to fraud; and such fraud, upon general principles of law, avoids the contract altogether. But with respect to mis-statements which stand clear of fraud, it is impossible to reconcile all the cases ; some of them laying it down that no mis-statements which originate in careless- ness, however gross, shall avoid the contract, but shall form the subject of compensation only; Duke of Norfolk v. Worthy, 1 Campb. 340; Wright V. Wilson, 1 Mood. & Kob. 207; whilst other cases lay down the rule, that a misdescription in a material point, although occasioned by negligence only, not by fraud, will vitiate the contract of sale; Jones T. Edney, 3 Campb. 284 ; Waring v. Hoggarfc, 1 Ry. & Mood. 39, and Stewart v. Alliston, 1 Mer. 26. In this state of discrepancy between the decided cases, we think it is, at all events, a safe rule to adopt, that where the misdescription, although not proceeding from fraud, is in a material and substantial point, so far affecting the subject-matter of the contract that it may reasonably be supposed, that, but for such misde- scription, the purchaser might never have entered into the contract at all, in such case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of compensation. Under such a state of facts, the purchaser may be considered as not having purchased the thing which was really the subject of the sale; as in Jones v. Edney, where the subject-matter of the sale was described to be " a free public house," while the lease contained a proviso, that the lessee and his assigns should take all their beer from a particular brewery; in which case the misdescription was held to be fatal. In the case under discussion the particulars represent the house as calculated for an extensive business in various trades therein enumerated; to which it was added, " that no offensive trades are to be carried on ; the premises cannot be let to a coffee-house keeper or working hatter." Any person reading this particular, and having no information but what he derives from it, that is, perhaps, every person attending thb sale, would conclude, that he was not prevented by the terms of the lease *from carrying on any trade in it, except those which were of a tm^q-i class generally acknowledged to be offensive, and the tfro enu- L J merated trades of coffee-house keeper and working hatter. He would never suppose, nor have any reason to suppose, that he was prevented 306 EOSS ON COMMERCIAL LAW. from carrying on the trade of a baker, a fruiterer, or a herb-seller, in a house situated in the piazza of Convent G-arden market, much less that the lease was to, become void, if the house, so situated, was used as a place for the sale of any provisions whatever. The latter restriction would extend to prevent trades of ^;he most innocent and inoflFensive kinds from being exercised on the premises ; such as a flour factor, a biscuit seller, or the like ; yet such are the restrictions found to exist in the lease when it is first submitted to the inspection of the purchaser. Under these circumstances, it appears to us, that a lease which ia described as containing a restriction against offensive trades, and a lease containing restrictions not only against offensive trades, but also against some trades that are inoffensive, are not one and the same thing, but a different subject-matter of contract; and that where a man pur- chases by the former description, it may very well be supposed that he would not have become the purchaser, whether he bought for the purpose of carrying on trade upon the premises himself, or for a money invest- ment, if he had" known the lease had contained the larger and more extensive restrictions ; and, indeed, the very terms of the sixth condition of sale scarcely apply to a case where the difference of value is so uncer- tain and arbitrary as in the present case. The condition, that- the par- ties are to pay or allow a proportionate value according to the average, will comprehend a case where there is half an acre more or less than is described, or oases which resolve themselves into simple calculations of that nature ; but how will it govern such a mis-statement as the present ? What action at law can be framed upon it? It would at least involve the purchasers in great difficulties. The lease being in the hands of the vendor, he had peculiarly, and indeed exclusively, the means of know- ledge of the exact restrictions contained in it; the purchaser at the auction had none. For the reading the lease at the auction by the auctioneer has been decided to be no excuse for a misdescription of the r*44Qn ^^^^^ °^ *^® '^^^® ^^ *^^ particulars of sale; *Joiles v. Edney, L -I 3 Campb. 285. And as to any laches on the part of the pur- chaser in not sooner demanding an inspection of the lease, which was urged as an argument on the part of the defendant, he had not the most distant reason to suspect any misdescription, until the abstract was delivered, and then the suspicion would come too late ; for the question is. Whether he was bound or not at the time the contract was made ? If, indeed, there had been any waiver of the objection in this case, our decision would have been different ; but a waiver should have been found by the arbitrator; and so far as can be inferred from the facts found upon the award, the lease was never seen by the purchaser, nor the objection ever taken, until the trial of the cause. He stood then, as he might do, upon his legal right to recover the deposit. Upon the whole, we see no reason to be dissatisfied with the arbitra- tor's award, and therefore the rule for entering the verdict for the defend- ant must be discharged. Rule discharged. 00NTEA0TOF8ALB. 307 A BREACH OF WARRANTY DOES NOT ENTITLE THE PURCHASER OE A SPECIFIC ARTICLE, WHICH HAS BEEN ACCEPTED BY HIM, TO RESCIND THE CONTRACT OP HIMSELF, AND BRING AN ACTION TO RECOVER THE PRICE, BUT HE MUST SUE ON HIS WARRANTY. I._POWER V. WELLS. Idem v. Eundem. May 23, IIIS.—E. 2 Cowper, 818. Upon showing cause against a new trial, in the above causes, Mr. Justice Ashhurst, before whom they were tried, reported as follows : — The first was an action for money had and received, brought to recover a sum of £21 paid by the plaintiff upon the exchange of a mare of his, for a horse of the defendant; which the 'defendant warranted r^j^cn-i to be sound; bftt which was clearly proved to be unsound at L J the time. Immediately upon discovering that the horse was unsound, the plaintiff sent it back, together with a letter, by a person who put the letter and halter into the defendant's hands in the defendant's yard, but he refused to take them. The person at the same time demanded the twenty guineas and the plaintiff's mare given in exchange; but the defendant said he had sold her, that he would have nothing to do with the person sent by the plaintiff, and turned him out of his yard. Upon which the plaintiff brought both the above actions. The second was an action of trover for the mare : both causes stood for trial in the paper together. As to the first, an objection was made at the trial to the form of the action, and I was very doubtful how far it was maintainable. But it was agreed that I should sum it up to the jury, and if they should be of opinion with the plaintiff upon the facts proved, then, instead of making a special case, it should be put in the form of a motion for a new trial. The jury found for the plaintiff. As to the second action, it was agreed that a verdict should be taken for the plaintiff upon the evidence given in the first cause, but with liberty to move for a new trial; and it was understood between the parties, that the defendant should be entitled to the same redress in both causes, in case the opinion of the Court should be in his favour, as if the whole had been stated in the form of a ease. Upon showing cause, the ques- tion was, Whether the above actions were rightly conceived ? or. Whe- ther the plaintiff should not have brought a special action on the case ? The Court were of opinion that both actions were misconceived. First, The action for money had and received, with no other count, was an improper action to try the warranty. Second, The action of trover could not be maintained, because the property was transferred by the exchange. Accordingly a nonsuit was ordered to be entered up in both causes. *II WESTON V. DOWNES. [*451] Not. 16, 1778.— E. 1 Douglas, 23. This was an action for money had and received by the defendant to the use of the plaintiff. On the trial, before Lord Mansfield, the plain- 808 BOSS ON COMMEBCIAL LAW. tiff proved that the defendant, in consideration of seventy guineas, had sold him a pair of coach-horses, which he undertook to take back, if the plaintiff should disapprove of them, and return them within a month. The plaintiff did return them within a month, but took another pair from the defendant in their stead, without making any new agree- ment. These he also returned within a month, and received a third pair on the 23d of December, without any fresh bargain. This third pair he disapproved of, because they were restive and would not draw; and offered to return them on the 5th of January, but the defendant refused to take them back. Lord Mansfield directed a nonsuit ■: and, on a rule to show cause why the nonsuit should not be set aside, and a new trial granted, the ques- tion was. Whether the action of assumpsit for money had and received, would lie in this case ? Dunning and Davenport, for the plaintiff, contended, that there was an end of the contract on the return of the first pair of horses, and that then a right accrued to bring this action. The Solicitor-General, for the defendant, insisted, that the contract was continued by taking other horses, and that the plaintiff ought to have declared upon the special agreement. Lord Mansfield. — I am a great friend to the action for money had and received; and therefore I am not for stretching, lest I should endanger it ; Longchamp v. Kenny, E. 19, Geo. pp. 132, 133. Where there is a special contract, the defendant ought to have notice, by the declaration, that he is sued upon that contract. WiLLES, J., of the same opinion. — Here was originally a special contract, and it continued between the parties through aU their subse- quent dealings. l-j^ . cn-i AsHHURST, J. — If the plaintiff had demanded the seventy L J *guineas, and brought his action, on the return of the first pair of horses, and no second pair had been sent, this action would have lain ; but here the contract was continue^, and the case resembles one that was tried before me on the Midland Circuit, and afterwards came on in this Court, viz., Power v. Wells, E. 18, Geo. III. Bdller, J This action will not lie, as the defendant has not pre- cluded himself from entering into the nature of. the contract, by taking back the last pair of horses. Where the contract is open, it must be stated specially. In Power v. Wells, the defendant had warranted a horse to be sound, which proved unsound. The plaintiff tendered a return of the horse, but the defendant refused to receive him ; and an action for money had and received being brought, it was held by the Court, that it would not lie. The rule made absolute. JII,— PAYNE v., WHALE. Feb. 11, 1806.— E, 1 East, 274. This was an action for money had and received, to recover back the prio? of a horse which had been warranted sound by the defendant to CONTRACT OF SALE. 309 the plaintiff. Shortly after the original bargain was made, (of which there was no proof except by the subsequent conversation,) and the money paid, the plaintiff observed that the horse was a roarer and unsound, and tendered back the horse, and demanded his money : the defendant admitted that he had made the warranty, but denied the unsoundness, and refused to take back the horse or return the money ; but told the plaintiff that if the horse were unsound, he would take it again and return the money. At the trial after last Trinity Term at Guildhall these facts were proved, and that the horse was a roarer and unsound. But it was objected on the part of the defendant, that the action was misconceived; *for that the question to be tried was r»4^cQ-| the unsoundnesSj which was the subject of the warranty, and <- J could not be tried in this action, the contract not being rescinded, but only in a special action on the case founded on the warranty. Lord Ellenborough, C. J., however, then thought that the special promise to rescind the contract and return the money, if the horse were unsound, took this out of the general rule ; and he therefore suffered the plaintiff to recover a verdict for the amount of the price paid. And in Michael- mas Term last a rule nisi was obtained for setting it aside and having a new trial, upon the authority of Power v. Wells, Cowp. 818, and Weston V. Downes, Dougl. 23 ; Hull v. Heightman, 2 East, 145, which established the principle, that where the contract of warranty is still open, assumpsit for money had and received will not lie by the vendee to recover back the price of the goods warranted ; though in the latter case there was a similar promise to take back the horsaf warranted, if the plaintiff disapproved of them and returned them within a month; which was offered to be done but refused. The case stood over till this Term, when — Garroio and Marryat showed cause against the rule, and referred to Towers V. Barrett, 1 Term Kep. 133, where the contract being that the plaintiff should pay ten guineas for a horse and chaise, on condition to be returned if his wife should not approve of it, he paying 8». Qd. a-day for the hire of it; and his wife not having approved of it, the plaintiff returned it in three days, and tendered the hire of it ; it was holden, that ho might maintain assumpsit for money had and received to recover back the price paid : and yet the wife's dissent was as much to be tried in that case, as the soundness was here. [Lawrence, J. — There the plaintiff had an option by the original contract to rescind it if not approved by his wife; £ut here it was no part of the original contract that the horse was to be taken back again and the money returned if it did not turn out to be sound. The defendant only said so afterwards when it was objected by the plaintiff that the horse was unsound, the contrary of which was insisted upon by the defendant. This distin- guishes the two cases.] They then endeavoured *to assimilate r^AKA-, the cases more, by contending that there was no evidence of the •- J original contract but what was to be collected from the subsequent con- versation; and that the whole was to be taken altogether as forming one contract, or as evidence of what had passed between the parties in the first instance. [But Le Blano, J., said it was evident that the subse- 310 EOSS ON COMMERCIAL LAW. - quent conversation amounted only to a recognition by the defendant that he had in the first instance warranted the horse to be sound ; which he still insisted was sound : but being pressed by the objection of the plaintiff, he then promised if it were unsound to take it again and return the money.] They then insisted that though the promise were made at a subsequent time, it had reference to the original contract, and was incorporated with it. Erslcine and Lawes in support of the rule. — If the defendant were entitled, as it must be admitted that he wag, to offer evidence of the soundness of the horse, it is clear that the contract was still open ; and then the question could not be tried in this form ; but the plaintiff can only sue upon the special contract, the breach of which he insists upon on the one hand, and the defendant denies on the other. The subsequent promise can make no difference, for it is no more than the law would have implied if the warranty were broken. [Lord Ellen- borough observed, that strictly speaking the promise was not exactly what the law would say in such a case ; for the promise was to take the horse again if unsound, and return the money ; but the law would say, that the party failing in his warranty should be answerable in damages. But that it was still open to the defendant to contend that the action should have been on the special undertaking.] In Towers v. Barrett, by the very terms of the original contract the defendant had no option to refuse taking back the chaise and horse in the event of the wife's disapprobation. But here the defendant insisted, as he had a right to do, on his pe»formance of the original contract, which he never agreed to rescind. Though if the subsequent conversation could be considered as amounting to a new contract, the objection would still remain that it ought to have been declared upon ; for it was conditional, Heyling v. rj^icc-i *Hastings, 1 Salk. 29 ; and the question of soundness was still t J open to be disputed. Lord Ellenborotjgh, C. J., then said, that as the cases ran very near to each other, and this would give the rule to many others, the Court would consider of the case before they gave their opinion ; as they wished to proceed upon some sound and clear principle which would not break in upon established cases which had become the habitual law of the land, such as actions of this sort against stakeholders, or for returns of pre- mium. That if the question were upon the warranty, there was no doubt that the action was misconceived : the ,only doubt was, whether the promise to take back the horse if unsound, and return the money, did not make a difference. His Lordship now shortly delivered the opinion of the Court.— This was a cause tried before me at Guildhall to recover back the price of a horse sold as a sound horse, and which proved to be unsound. It was to be collected from the evidence, that there had been a warranty of soundness at the time of the original contract of sale : but in a subse- quent conversation, when the plaintiff objected that the horse was un- sound, the defendant said, that if the horse wore unsound, he would take it again, and return the money. And it was contended that the action for money had and received would not lie, upon the authority of Power OONTRAOT or SALE. 311 V, Wells and Weston v. Downes, because this was no other than a mode of trying the warranty, which could only be by a special action on the case. It had occurred to me at the trial, that the defendant, by means of his promise to return the money and take back the horse if it were unsound, had placed himself in the situation of a stakeholder, and there- fore that on proof that the horse were unsound he was to be considered as holding the money for the use of the plaintiff. But upon further consideration I am clearly satisfied that that J)romise did not discharge the original warranty, and that the party complaining of the breach of that warranty must still sue upon it. The second conversation is not to be considered as an abandonment of the original warranty, the perform- ance of which the defendant still insisted *upon; but rather as r^^rn-t a declaration that if the warranty were shown to be broken, he L J would do that, which is usually done in such cases, take back the horse and repay the money. Then where any question on the warranty re- mains to be discussed, it ought to be so in a shape to give the other party notice of it, namely, in an action upon the warranty. Nonsuit to be entered. WHERE BY, THE TERMS OP THE CONTRACT THE PURCHASER IS ENTITLED TO RESCIND THE CONTRACT, OR WHERE THE SELLER ASSENTS TO ITS BEING RESCINDED, THE PURCHASER, ON THE CONTRACT BEING RE- SCINDED, MAY BRING AN ACTION TO RECOVER THE PRICE ; BUT SO LONG AS THE CONTRACT REMAINS OPEN, THE PURCHASER CAN ONLY RECOVER DAMAGES ON THE BREACH OP CONTRACT J AND IN AN ACTION BY THE SELLER FOR THE PRICE, THE BREACH OP THE WARRANTY MAY BE GIVEN IN EVIDENCE IN REDUCTION OP THE PRICE. TOWEKS V. BARRETT. Feb. 1, Itse.— B. 1 T. R. 133. Action for money had and received, and for money paid, laid out, and expended. On the trial of this cause before Lord Mansfield, at the sittings at Westminster after last Michaelmas Term, it appeared that this suit was instituted by the plaintiff to recover ten guineas, which he had paid to the defendant for a one-horse chaise and harness, on condition to be re- turned in case the plaintiff's wife should not approve of it, paying 3s. 6d. per diem for the hire of it. This contract was made by the defendant's servant, but his master did not object to it at the time. The plaintiff's wife not approving of the chaise, it was sent back at the expiration of three days, and left on the defendant's premises, without any consent on his part to receive it : the hire of 3s. 6c?. per diem was tendered at the same time, which the defendant refused, as well as to return the money. After a verdict had been given for the plaintiff. Sir Thomas Daven- port obtained a rule to show cause why a non-suit should not be entered 312 BOSS ON COMMERCIAL LAW. _ .___ on the ground that this action for money *had and received L J would not lie ; but that it should have been on the special con- tract. Erskine now showed cause. — This case is very distinguishable from those of Power v. Wells, Gowp. 818, and Weston v. Downes, Dougl. 23, on which this rule was obtained. In the former of those cases, it was determined that a warranty could not be tried in an action for money had and received ; and in' the latter, that such an action did not lie, the payment having been made on a contract which was still open, and dis- puted by the defendant. But this is the very case put by Mr. Justice Ashhurst, Dougl, 24, where he said this action would have lain. The principle is this : where a man enters into a contract for a sale, and he warrants that the object of that sale shall be of a certain denomi- nation, and he does no act to disallow that contract, there money had and received will lie against him : but where the warranty is disputed, that must be tried in an action on the special contract. In the present case there was no warranty; it was only a sale on condition, which failed. And it was held in Moses and Macferlan, 2 Burr. 1012, that an action for money had and received will lie to recover money paid by mistake, or upon a consideration which happens to fail. Sir Thomas Davenport in support of the rule. — Wherever there is a special contract, whether conditional or absolute, or in whatever terms it may be conceived, so long as that contract remains open to be disputed, and the party has done nothing to acknowledge the contract, or to pre- clude himself from entering into the nature of it, the defendant ought to have notice on the declaration that he is sued on that contract. The cases of Power v. Wells, and Weston v. Downes, are decisive as to the present. This comes within the principle laid down by Mr. J. Buller in the latter of those cases, where he said, " where the contract ■ is open, it must be stated specially." The chaise was left on the premises, but the defendant refused to re- ceive it : then the question is, Whether the plaintiff had a right to return it ? and how that right is to be tried ? — There are several matters here P4581 ^° controversy, which cannot be *tried in an action for' money ■- J had and received ; First, Whether in fact there were any con- tract; secondly. The extent of it; and,. thirdly, What the plaintiff ought to have paid per diem for the hire ; for it is open on this declaration to say that the defendant ougl^ to have had 5s. per diem as well as 3s. Qd. When the party has done anything to preclude himself from going into the contract, then money had and received will lie : but here the defend- ant disputes it. Lord Mansfield, C. J. — I am a great friend to the action for money had and received :^ it is a very beneficial action, and founded on princi- ples of eternal justice. In support of that action, I said in the case of Weston v. Downes, that I would guard against all inconveniences which might arise from it, particularly a surprise on the defendant ; as where the demand arises on a special contract, it should be put on the record. But I have gone OONTRAOT OF SALE. 313 farther than that ; for if the parties come to trial on another ground, though there happen to be a general count for money had and received, I never suffer the defendant to be surprised by it, unless he has had notice from the plaintiff that he means to rely on that as well as the other ground. But consistently with that guard, I do not think that the action can be too much encouraged". Here there is no pretence of a surprise on the defendant j there was no other question to be tried. The defendant knew the whole of the matter in dispute as well as the plaintiff. On what ground can it be said that this is not money paid to the plaintiff's use? The defendant has got his chaise again, and, notwithstanding that, he keeps the money. The case was well put by Mr. J. Ashhurst in Weston v. Downes, and I think this is exactly like that. I was of opinion at the trial that this action would lie ; and I still continue of that opinion. WiLliES, J. — The only difficulty is to distinguish this case from that of Weston v. Downes; and I think it differs from that on two grounds. That was an absolute, this is a conditional, agreement. And r#^cq-i 'another more material difference is, that this agreement was at L J an end ; the contract was no longer open; In the case of Weston v. Downes, Mr. J. Bnller said, " This action will not lie, as the defendant has not precluded himself from entering into the nature of a contract, by taking back the last pair of horses." But, in the present case, the defendant has precluded himself by taking back the chaise. I think the verdict is right. AsHHCRST, J. — This action is maintainable ; for it is different from the oases of Weston v. Downes, and Power v. Wells. The latter was merely a case of warranty. In these actions the party cannot desert the warranty, and resort to the general count, because the warranty itself is one of the facts to be tried. As to that of Weston v. Downes ; On the first contract there was an agreement to take back the horses' provided they were returned within a month : that would have been like the present case, if they had been returned within that time ; but there was an end of the first contract, for the plaintiff took a second, and then a third, pair of horses : that was a new contract, not made on the terms of the first, and that is dis- tinguishable from the present case. But laying that determination out of the question, this is like the common cases where either party puts an end to a conditional agreement. Here the condition was to return the chaise if not approved of; there- fore, the moment it was returned the contract was at an end, and the defendant held the money against conscience and without consider- ation. BuLLER, J.-^On the very principle in Weston v. Downes, and Power v. Wells, which determined that the action for money had and received would not lie in those cases, it is clear that this action will lie. It is admitted that if the defendant had actually accepted the chaise, the action would lie : but it has been contended that he did not receive it. Then let us see whether there be not something equivalent toan 314 ROSS ON COMMEECIAL LAW. acceptance ? I think there is, from the terms of the contract. There ■was nothing more to *be done by the defendant; for he left it in L ° J the power of the plaintiff to put an end to the contract. Here it was not in his option to refuse the chaise when it was offered to him : he was bound to receive it ; and therefore it is the same as if he had accepted it. The distinction between those cases where £he contract is open, and wher^it is not so, is thig; if the contract be rescinded, either, as in this case, by the original terms of the contract, where no act remains to be done by the defendant himself, or by a subsequent assent by the defend- ant, the plaintiff is entitled to recover back his whole money ; and then an action for money had and received will lie. But if the contract be open, the plaintiff's demand is not for the whole sum, but for damages arising out of that contract. In a late case before me on a warranty of a pair of horses to Dr. Compton that they were five years old, when in fact they turned out to be only four, and they were not returned within a certain time, I held that if the plaintiff would rescind the contract entirely he must do it within a reasonable time, and that as he had not rescinded the con- tract, he could only recover damages ; and then the question was. What was the difference of the value of horses of four and five years old. So that the difference in cases of this kind is this; where the plain- tiff is entitled to recover his whole money, he must show that the con- tract is at an end : but if he continue open, he can only recover damages, and tben he must state the special contract and the breach of it. Rule discharged. The case of Street v. Blay, 2 B. & A.d. 456, was an action of assumpsit for a horse sold and delivered. The defendant had purchased a horse warranted sound — had sold it and repurchased it. The horse was then discovered to have been unsound at the time of the first sale, and the defendant offered to return it to the r*46n P'^'^''^! ^'^^ ^^ refused to accept of it. The question raised was. Whether ■- J *the defendant under these circumstances had a right to return the horse, and thereby exonerate himself from the payment of the whole price ? It was held that he could not resist the action for the price, but might give the breach of war- ranty in evidence in reduction of damages. The judgment of the Court was deli- vered by Lord Tenterden, 0. J., who observed,—" It is not necessary to decide, whether in any case the purchaser of a specific chattel, who, having had an oppor- tunity of exercising his judgment upon it, has bought it, with a warranty that it is of any particular quality or description, and actually accepted and received it into his possession, can afterwards, upon discovering that the warranty has not been complied with, of his own will only, without the coijcurrence of the other contracting party, return the chattel to the vendor, and exonerate himself from the payment of the price, on the ground that he has never received that article which he stipulated to purchase. There is, indeed, authority for that position. Lord Eldon, in the case of Curtis v. Hannay, 3 Bsp. N. P. C. 83, is reported to have said, that 'he took it to be clear law, that if a person purchases a horse which is warranted sound, a;id it afterwards turns out that the horse was unsound at the time of the warranty, the buyer might, if he pleased, keep the horse and bring an action on the warranty, in which he would have a right to recover the difference between the value of a sound horse' and one with such defects as existed CONTEAOX OF SALE. 315 at the time of the warranty, or he might return the horse and bring an action to recover the full money paid ; but in the latter case, the seller had a right to expect that the horse should be returned in the same state he was when sold, and not by any means diminished in value ;' and he proceeds to say, that if it Tvere in a worse state than it would have been if returned immediately after the discovery, the purchaser would have no defence to an action for the price of the article. It is to be implied that he would have a defence in case it were returned in the same state, and in a reasonable time after the discovery. This dictum has been adopted in Mr. Starkie's excellent work on the Law of Evidence, part iv. p. 645 ; and it is there said that a vendee may, in such a case, rescind the contract altogetjiltr by returning the article, and refuse to pay the price, or recover it back if paid. It is, however, extremely difScult, indeed impossible, to reconcile this doctrine with those cases in which it has been held, that where the property in the specific chat- tel has passed to the vendee, and the price has been paid, he has no right, upon 'the breach of the warranty, to return the article and revest the property in the vendor, and recover the price as money paid on a consideration which has failed, but must sue upon the warranty, unless there has been a condition in the contract authorizing the return, or the vendor *has received back the chattel, and r^^oo-i has thereby consented to rescind the contract, or has been guilty of a L -■ fraud, which destroys the contract altogether. Weston v. Downes, 1 poug. 23; Towers V. Barrett, 1 T. E. 133; Payne v. Whale, 7 East, 274; Power v. Wells, Doug. 24, 11., and Emanuel v. Dane, 3 Oampb. 299, where the same doctrine was applied to an exchange with a warranty, as to a sale, and the vendee Jield not to be entitled to sue in trover for the chattel delivered, by way of barter, for another received. If these cases are rightly decided, and we think they are, and they certainly have been always acted ugon, it is clear that the purchaser cannot by his own act alone, unless in the excepted cases above mentioned, revest the pro- perty in the seller, and recover the price when paid, on the ground of the total failure of consideration; and it seems to follow that he cannot, by the same means, protect himself from the payment of the price on the same ground. On the other hand, the cases have established, that the breach of the warranty may be given in evidence in mitigation of damages, on the principle, as it should seem, of avoiding circuity of action, Cormack v. Gillis, cited 7 East, 480 ; King v. Bos- ton, 7 East, 481, n.; and there is no hardship in such a defence being allowed, as the plaintiff ought to be prepared to prove a compliance with bis warranty, which is part of the consideration for the specific price agreed by the defendant to be paid. It is to be observed, that although the vendee of a specific chattel, deli- vered with a warranty, may not have a right to return it, the same reason does not apply to cases of executory contracts, where an article, for instance, is ordered from a manufacturer, who contracts that it shall be of a certain quality, or fit for a certain purpose, and the article sent as such is never completely accepted by the party ordering it. In this and similar cases the latter may return it as soon as he discovers the defect, provided he has done nothing more in the meantime than was necessary to give it a fair trial, Okell v. Smith, 1 Stark. N. P. C. 107; nor would the purchaser of a commodity, to be afterwards delivered according to sample, be bound to receive the bulk, which may not agree with it ; nor after having received what was .tendered and delivered as being in accordance with the sample, will he be precluded by the simple receipt from returning the article within a reasonable time for the purpose of examination and comparison. The observations above stated are intended to apply to the purchase of a certain spe- cific chattel, accepted and received by the vendee, and the property in which is completely and entirely vested in him. But whatever may be the right of the purchaser to return such a warranted article in an ordinary case, there is no au- thority to show that he may return it where the purchaser has done more than was consistent with the purpose of trial ; where he has exercised the i-*4gQ-i *dominion of an owner over it, by selling and parting with the property >- -' to another, and where he has derived a pecuniary benefit from it. These circum- stances concur in the present case ; and even supposing it might have been com- petent for the defendant to return this horse, after having accepted it, and taken it into his possession, if he had never parted with it to another, it appears to us that he cannot do so after the re-sale at a profit. These are acts of ownership wholly inconsistent with the purpose of trial, and which are conclusive against the defendant, that the particular chattel was his own ; and it may be added, that the parties cannot be placed in the same situation by the return of it, as if the 316 ROSS ON COMMERCIAL LAW. contract had not been made, for the defendant has derived an intermediate benefit in consequence of the bargain, which he would still retain. But he is entitled to reduce the damages, as he has a right of action against the plaintiff for the breach of warranty. The damages to be recovered in the present action have not been properly ascertained by the jury, and there must be a new trial, unless the par- ties can agree to reduce the sum for which the verdict is to be entered; and if they do agree, the verdict is to be entered for that sum." WHERE THE PRICE 05 THE SUBJECTS SOLD IS £10 OR UPWARDS, THE COMPLETION or THE CONTRACT IS REGULATED BY THE STATUTE OP FRAUDS, WHICH REQUIRES EITHER THAT THE PURCHASER SHOULD ACCEPT AND ACTUALLY RECEIVE PART OP THE GOODS SOLD, OR THAT HE SHOULD GIVE SOMETHING IN EARNEST TO BIND THE BARGAIN, OR IN PART PAYMENT, OR THAT SOME NOTE OR MEMORANDUM IN WRIT- ING OP THE BARGAIN BE MADE AND SIGNED BY THE PARTIES, OR THEIR AGENTS THERETO LAWFULLY AUTHORIZED, AND WHEN SEVE- RAL ARTICLES ARE PURCHASED AT ONE TIME, IT IS HELD TO BE A SINGLE CONTRACT, AND WITHIN THE STATUTE, IP THE TOTAL COST OF THE ARTICLES PURCHASED AMOUNTS TO £10, ALTHOUGH THE PRICE OF EACH ARTICLE WAS LESS THAN THAT AMOUNT. I.— BALDEY V. PAEKER. June 5, 1823.— E. 2 B. & 0. 37. Eng. Com. Law Reps., vol. 9. Assumpsit for goods sold and delivered. Plea, general issue. At the trial before Abbott, C. J., at the London Sittings after Trinity Term, 1822, the following appeared to be the facts of the case. The plaintiffs are linen-drapers, and the defendant came to their shop and r*4.K4.l l^^rgained for various articles. A ^separate price was agreed L J upon for each, and no one article was of the value of £10. Some were measured in his presence, some he marked with a pencil, others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and. sent by a shopman. The amount of the goods was £70. The defendant looked at the account, and asked what discount would be allowed for ready money, and was told £o per cent. ; he replied that it was too little, and requested to see the person of whom he bought the goods (Baldey), as he could bargain with him respecting the discount, and said that he ought to be allowed £20 per cent. The goods were afterwards sent to the defendant's house, and he refused to accept them. The Lord Chief Justice thought that this was a contract for goods of more than the value of £10 within the meaning of the seventeenth section of the Statute of Frauds, and not within any of the exceptions there mentioned, and directed a nonsuit ; but gave the plain- tiffs leave to move to enter a verdict in their favour for £70. A rule having accordingly been obtained for that purpose, Scarlett and E. Lawes now showed cause. — It is quite clear that this was an entire contract for the whole of the goods. Suppose after the OONTEAOT OF SALE. 317 bargain for them all was made, the plaintiffs had refused to let the de- fendant have some one particular article, they could not have compelled him to take the residue ; or if one of the articles when sent home differed" from that bargained for, the purchaser might have rejected the whole, for no jury would ever have found that there were separate contracts, and have compelled him to take that part which corresponded with the order. Then as to the supposed acceptance, the plaintiffs always re- tained their lien for the price ; the defendant had no right to take away the goods without paying for them, nor could he have maintained trover without tendering the price. There was not then any such change of possession as contemplated by the Statute. Denman and Piatt, contra. — The plaintiffs are entitled to a verdict on both grounds. For there was a separate and *distinct bargain r-i^AnK-t for each article; and even if that were not so, the defendant L J accepted the goods, so as to take the case out of the Statute of Frauds. Whether the contracts were several or not, cannot depend upon the time when the various articles were purchased, but upon what passed at the making of the bargain. Now it was distinctly proved that a separate price was fixed upon each article, and the purchase of each was complete before the parties went on to bargain for any others. If that be not bo, it will be difficult to determine what space of time must elapse between the purchase of any two articles, in order to make the contracts separate. In Emmerson v. Heelis, 2 Taunt. 38, it was held that the purchaser of several lots at an auction was to be considered as making a separate contract for each lot. Had the defendant left the shop for a few minutes' between the purchase of each article, that certainly would, have made them separate contracts, and there does not appear to be any substantial difference between such a case and the present. Then as to the second point, there was a complete delivery and acceptance within the meaning of the Statute. There was a complete change in the state of the pro- perty. The defendant assisted in measuring the articles, and in sever- ing them from the bulkj the price of each was fixed; so that nothing remained to be done before they were to be delivered to the defendant. The change of property was therefore complete; Rugg v. Minett, 11 East, 210. Some the defendant actually marked with a pencil; and in Hodgson v. Le Bret, 1 Campb. 283, that was considered as an acceptance. So also was cutting off the pegs in pipes of wine; Anderson v. Scott, 1 Campb. 235, n. The policy of the Statute of Frauds was, that a mere verbal agreement should not bind; but it does not apply where any act has been done to show the approval of the contract; Chaplin v. Rogers, 1 East, 192; Elmore v. Stone, 1 Taunt. 458; Searle and Others v. Keeves, 2 Esp. 598. [HoLROYD, J. — Hanson v. Armitage, 5 R. & A. 557, and Carter v. Toussaint, 5 B. & A. 855, are strong authorities against you.], In the former the purchaser had not exercised any judgment on the article ordered, and in the latter the firing of the horse was the act of both parties, and not done to show an approval of the contract. Neither does Howe v. Palmer, 3 B. & A. 321, *apply, for the goods were r* «gg-| severed by the vendor alone. With respect to the vendor's right L J of lien, that has never been decided to be the criterion by which cases Fbbbdary, 1855. — 21 318 BOSS ON COMMERCIAL LAW. of this nature are to be judged of. Indeed lien imports that the property has passed. [Holrotd, J If the property has passed subject to a lien, is that a delivery and acceptance within the meaning of the Sta- tute ?] Abbott, 0. J. — We have given our opinion upon more than one occa- sion, that the 29 Car. II. c. 3, is a highly beneficial and remedial Sta. tute. We are therefore bound so to construe it as to further the object and intention of the Legislature, which was the prevention of fraud. It appeared from the facts of this case, that the defendant went into the plaintiff's shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were afterwards sent home to him. The first- question is, Whether this was one entire contract for the sale of all the goods ? By holding that it was not, we should entirely defeat the object of the Sta- tute. For then persons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the Statute by making a separate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be considered ,to have made one entire contract for the whole of the articles. The plaintiffs, therefore, cannot maintain this action unless they can show that the case is within the exception of the 29 Car. II. c. 3, s. 17. Now the words of that exception are peculiar, " except the buyer shall accept part of the goods so sold, and actually receive the same." It would be difficult to find words more distinctly denoting an 'actual transfer of the article from the seller, and an actual taking posses- sion of it by the buyer. If we held that such a transfer and acceptance were complete in this case, it would seem to follow as a necessary conse- quence that the vendee might maintain trover without paying for the goods, and leave the vendor to this action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find that the law warrants us in saying that this transaction had no such effect. r»4.fi71 *Batlet, J. — The buyer cannot be considered to have actually L J received the goods, when they have remained from first to last in the possession of the seller. The plaintifi"s are not assisted by the ex- ception in the seventeenth section of the Statute of Frauds. Then the question is, Whether there was a separate contract for each article ? The 29 Car. II. c. 3, was passed to guard against frauds and perjuries; and it must be collected from the seventeenth section, that the legislature thought that a contract to the extent of £10 might be suflScient to induce the parties to it to bring tainted evidence into Court. Now it is conceded here, that on die same day, and indeed at the same meeting, the defend- ant contracted with the plaintiffs for the purchase of goods to a much greater amount than £10. Had the entire value been set upon the whole goods together, there cannot be a doubt of its being a contract for a greater amount than £10 within the seventeenth section of the statute; and I think that the circumstance of a separate price being fixed upon each article makes no such difference as will take the case out of the operation of that law. It has been asked, what interval of time must elapse between the purchase of different articles in order to make the OONTRAOT or SALE. 319 contract separate, and the case has been put of a purchaser leaving a shop after making one purchase and returning after an interval of five or ten minutes, and making another. If the return to the shop were soon enough to warrant a supposition that the whole was intended to be one transaction, I should hold it one entire contract within the meaning of the Statute. I am therefore of opinion that this rule must be dis- charged. HoLROTD, J I am of the same opinion. The intention of the statute was that certain requisites should be observed in all contracts for the sale of goods for the price of JIO and upwards. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than £10, but in the course of the dealing it grew to a contract for a much larger amount. At last, therefore, it was one entire contract, within the meaning and mischief of the Statute of Frauds, it being the intention of that statute that where the contract, either at the commencement or at the* conclusion, pjuj^f-Q-i amounted to or exceeded the value of £10, it should not bind L J unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of £10, as if it had been originally of that amount. It must therefore be considered as one contract within the meaning of the Act. With respect to the exception in the seventeenth section, it may perhaps have been the intention of the legislature to guard against mistake, where the parties mean honestly, as well as against wilful fraud ; and the things required to be done will have the effect of answering both those ends. The words are, " except the buyer shall accept part of the goods BO sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memo- randum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully autho- rized." Each of those particulars either shows the bargain to be com- plete, or still further, that it has been actually in part performed. The change of possession does not in ordinary cases take place until the completion of the bargain : part payment also shows the completion of it; and in like manner a note or memorandum in writing signed by the parties plainly proves that they understood the terms upon which they were dealing, and meant finally to bind themselves by the contract therein stated. In the present case there is nothing to show that some farther arrangement might not remain unsettled after the price for each article had been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of possession as that contemplated by the statute. Upon a sale of specific goods, for a specific price, by parting with the possession the seller parts with his lien. The Statute contemplates such a parting with the posses- sion; and therefore as long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as bis own, within the meaning of the Statute. Best, J — It was formerly considered that a delivery of the p;|.4fiqi *goods by the seller was sufficient to take a case out of the L J 320 ROSS ON COMMERCIAL LAW. seventeenth section of the Statute of Frauds ; but it is now clearly set- tled, that there must be an acceptance by the buyer, as well as a deli- very by the seller. The Statute enacts, that where the bargain is for something to the value of 56IO it shall not bind, unless something une- quivocal has been done to show that the contract is complete. Nothing of that kind having been done in this case, if the dealing is to be con- sidered as one entire transaction, it is clear that the plaintiffs cannot recover : whatever this might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account was all made out together, and the conversation about discount was with reference to the whole account. It is therefore very distinguishable from Emmerson v. Heelis, where a complete bargain was made as to each article, as soon as the auctioneer had signed his name to it. Rule discharged. II. — ROHDE V. THWAITES. ■ Hilary Term, 1827.-1]. 6 B. & C. 388. Eng. Com. Law Eeps., vol. 13. Declaration stated, that on the 3rd December, 1825, the defendant bargained for and bought of the plaintiffs, and the plaintiffs, at the request of the defendant, sold to him certain goods, to wit, twenty hogs- heads of sugar, at 56s. 6d. per cwt., to be delivered by the plaintiffs to the defendant upon request, and to be paid for at the expiration of two months then following; and in consideration thereof, and that the plain- tiffs, at the like request of the defendant, had undertaken and faithfully promised the defendant to deliver the goods to him, he, the defendant, . undertook and faithfully promised the plaintiffs to accept the goods when he should be requested, and to pay them, the plaintiffs, for the same, at the expiration of the said credit. Averment, that the price of the goods amounted to a certain sum, to wit, &c., and that although the plaintiffs r#4.7m ^^^ always been ready and willing to deliver the goods to the L J *defendant, and requested him to accept the same, and although ' the credit had expired, yet the defendant did not, nor would, at the time when he was so requested, or any time before or afterwards, accept the goods or pay the plaintiffs, or either of them, for the same, but refused so to do. There was then an indebitatus count for goods bargained and sold. The defendant suffered judgment to go by default. Upon the execution of the writ of inquiry the plaintiffs proved that a contract for the sale of twenty hogsheads of sugar was made on the 3rd of December, 1826, at 56s. 6rf. per cwt., but there was no sufficient note in writing to satisfy the Statute of Frauds. On that day the plaintiff had in his warehouse on the floor, in bulk, a much larger quantity of sugar than would be required to fill up twenty hogsheads, but no part of it was in hogsheads. The defendant saw the sugar in this state in the plaintiffs' warehouse, and then made the contract in question. Four hogsheads were filled up and delivered to the defendant on the 10th of December, and a few days afterwards the plaintiffs filled up the remaining sixteen CONTRACT OP SALE. 321 hogsheads, and gave notice to the defendant that they were ready, and required him to take them away ; he said he would take them as soon as he could. They were not weighed till Fehruary, 1826, when the plain- tiffs delivered a bill of parcels to the defendant. The plaintiffs added to the bulk, from time to time, as sales were made, and it did not very distinctly appear whether the sixteen hogsheads were filled wholly with the same sugar which was in the warehouse on the 3rd of December, when the contract was made. The four hogsheads which were first deli- vered were filled with that sugar. It was admitted that there was suffi- cient evidence of a sale of the four hogsheads, inasmuch as there was an acceptance of them by the defendant. No contract in writing sufficient to satisfy the Statute of Frauds having been proved, it was insisted that there was no evidence of any contract of sale of the sixteen hogsheads of sugar, and that the plaintiffs could only recover for the four hogs- heads which had been actually delivered; but the jury, under the direc- tion of the Under Sheriff, found a verdict for the value of the twenty hogsheads. A rule nisi for setting aside the writ of inquiry having been obtained by Hutchinson in Trinity Term, — *F. Pollock, now showed cause. — The defendant, by suffering r^An-i-, judgment to go by default, has admitted the contract stated in L J the declaration, and the plaintiffs, therefore are entitled to recover any damages sustained by breach of that contract. Secondly, The defendant accepted four hogsheads of the sugar. This is a case, therefore, within the exception of the seventeenth section of the Statute of Frauds, for the buyer has accepted part of the goods sold, and actually received the same. Thirdly, There has been an acceptance of the whole ; for after the sixteen hogsheads were separated from the bulk, the defendant being required to take them away, said he would as soon as he could. This is equivalent to an acceptance of the sixteen hogsheads. Hutchinson, contra. — By suffering judgment by default, the defendant admits generally the plaintiffs' right to recover on the contract stated in the declaration to a certain extent, and in this case he admits the right of the plaintiffs to recover the value of the four hogsheads which were actually delivered. Secondly, The seventeenth section of the 29 Car. II. c. 3, enacts, — " That no contract for the sale of any goods for the price of £10 or upwards shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same." Now, in this case, no specific twenty hogsheads of sugar were agreed to be sold, but the plaintiffs were to select from a large bulk in their ware- house, a sufficient quantity of sugar to fill twenty hogsheads. At the time when the four hogsheads were delivered to and accepted by the de- fendant, the quantity required to fill the other sixteen hogsheads had not been separated from the bulk. The four, therefore, did not constitute any part of the twenty, and consequently the acceptance of the four was not an acceptance of part of the goods sold ; and if that be so, as there was no sufficient note in writing of a contract of sale, the property in the sixteen hogsheads did not pass to the defendant, and as the plaintiffs' claim is founded on a bargain and sale, they cannot upon this declara- 322 BOSS ON OOMMEROIAL LAW. tion recover more than the value of the four hogsheads which were sold to and accepted by the defendant. r*479n *BATiiET, J. — Where a man sells part of a large parcel of L J goods, and it is at his option to select part for the vendee, he cannot maintain any action for goods bargained and sold, until he has made that selection ; but as soon as he appropriates part for the benefit of the vendee, the property in the article sold passes to the vendee, although the vendor is not bound to part with the possession until he is paid the price. Here there was a bargain, by which the defendant un- dertook to take twenty hogsheads of sugar, to be prepared or filled up by the plaintifis. Four were delivered; as to them there is no question; but as to the sixteen it is said, that as there was no note or memoran- dum of a contract in writing sufficient to satisfy the Statute of Frauds, there was no valid sale of them ; and the plaintifis in their declaration having stated their claim to arise by virtue of a bargain and sale, cannot recover for more than the four hogsheads which were actually delivered to and accepted by the defendant; that in order to recover for the others they ought to have declared specially, that, in consideration that the plaintiffs would sell, the defendant promised to accept them. In answer to this, it is said, that there was an entire contract for twenty hogsheads, and that the defendant by receiving four, had accepted part of the goods sold within the meaning of the seventeenth section of the Statute of Frauds. In fact, the plaintiff's did appropriate, for the benefit of the defendant, sixteen hogsheads of sugar, and they communicated to the defendant that they had so appropriated them, and desired him to take them away ; and the latter adopted that act of the plaintiff's, and said he would send for them as soon as he- could. I am of opinion, that by rea- son of that appropriation made by the plaintiffs, and assented to by the defendant, the property in the sixteen hogsheads of sugar passed to the vendee. That being so, the plaintiffs are entitled to recover the full value of the twenty hogsheads of sugar, under the count for goods bar- gained and sold. The rule for setting aside this writ of inquiry must therefore be discharged. HoLROTiD, J. — The sugars agreed to be sold being part of a larger parcel, the vendors were to select twenty hogsheads for the vendee. That 'r«4.7^1 s^^^"*-!*"! '^^^ made by the plaintiffs, and *they notified it to the L -1 defendant, and the latter then promised to take them away. That is equivalent to an actual acceptance of the sixteen hogsheads by the defendant. That acceptance made the goods his own, subject to the vendors' lien as to the price. If the sugars had afterwards been destroyed by fire, the loss must have fallen on the defendant. I am of opinion that the selection of the sixteen hogsheads by the plaintiffs, and the adoption of that act by the defendant, converted that which before was a mere agreement to sell into an actual sale, and that the property in the sugars thereby passed to the defendant; and, consequently, that he was enti- tled to recover to the value of the whole under the count for goods bar- gained and sold. LiLTLEDALE, J., conourred. Rule discharged. CONTRACT OP SALE. - 323 III. — TEMPEST V. FIZTGEEALD. June, 12, 1820.— E. 3 B. & Al. 680. Eng. Com. Law Reps., vol. 5. Assumpsit for the price of a horse Declaration contained counts for horses sold and delivered, bargained and sold, &c. Plea, general issue. At the trial before Parke, J., at the last assizes for the county of Lan- caster, the following facts were proved j In August, 1817, the defendant, then on a visit at the plaintiff's house, agreed to purchase a horse from him at the price of forty-five guineas, and to fetch it away about the 22d September, as he went to Doncaster races. The parties understood it to be a ready money bargain. The defendant said he wanted it for hunting, and the plaintiff proposed to put it in a course of physic dur- ing his absence. The defendant soon after quitted the plaintiff's house, and returned on the 20th September. He then ordered the horse to be taken out qf the stable, he and his servant mounted, galloped, and leaped the horse, and after they had so done, his servant cleaned him, and the defendant himself gave directions that a roller should be taken r:f:A>jA-, *off and a fresh one put on, and that a strap should be put upon L J his neck, which was consequently done ; he then asked the plaintiff's son if he would keep it for another week, he said that he would do it to oblige him. The defendant then said, that he would call and pay for the horse when he returned from the Doncaster races, about the 26th or 27th September. He told plaintiff's groom that the horse ought to be galloped more, and that it was not then in a condition for hunting. The defendant returned on the 27th, with the intention to take it away, but the horse having died on the 26th September he refused to pay the price. Upon these facts it was contended by the defendant's counsel, that there had been no acceptance of the horse by him, so as to take the case out of the Statute of Frauds. The learned judge was of opinion, that if the acts done by the defendant on the 20th September were to be considered as acts of ownership, that there was a suf^cient acceptance ; and he left it to the jury to say whether the riding of the horse on that day was by way of trial, or whether the defendant was then exercising an act of ownership ; and whether the directions then given were by way of ad- vice or as owner. If they thought that he was then exercising acts of ownership, then they were to find for the plaintiff; if otherwise, for the defendant. The jury found a verdict for the plaintiff. A rule nisi hav- ing been obtained for a new trial in last Easter Term, — Scarlett and JBbU now showed cause The question was properly left to the jury. Whether on the 20th September the defendant had not exer- cised acts of ownership upon the horse : The jury have found that he had, and that being so, there was clearly an acceptance of the horse, within the meaning of the Statute of Frauds. In Blenkinsop v. Clay- ton, 7 Taunt. 597; 1 B. Moore, 328, a case similarly circumstanced, the Court of Commqn Pleas thought it a question for the jury to determine whether the act done by the purchaser, was an act of ownership or not. Chaplin v. Kogers, 1 East, 192, is an authority to the same effect. The object of the legislature in the Statute of Frauds was, that there should 324 ROBS ON OOMMEROIAt LAW. be some act done by the party beyond the mere contract, to make it binding. Here such acts *have been done by the vendee, with L *'°J respect to the property purchased, and admitting them to be equivocal in their nature, still the jury have found by their verdict that they were acts of ownership ; and that being so, there can be no doubt that there was an acceptance of the property by the defendant within the meaning of the Statute of Frauds. Cross, Serjeant, and Milner, contra — The intent and meaning of the Statute was, that there should be certain forms used in order to make a contract binding, or that there should be some clear unequivocal act done by the vendee, to show that he had adopted the contract. In this case the acts relied upon were at least equivocal. This also was a ready money bargain, and the defendant could have no right to take away the horse until he paid the money. They were then stopped by the Court. Abbott, C. J. — The Statute of Frauds was made for wise and bene- ficial purposes, and ought to receive such a construction as will best accord with the plain and obvious meaning of the Legislature. By the seventeenth section it is enacted, "That no contract for the sale of goods, wares, or merchandises, for the price of £10 or upwards, shall be good, except the buyer shall accept part of the goods so sold, and actu- ally receive the same ; or give something in earnest to bind the bargain, or in part of payment; or that some note or memorandum in writing of the said bargain, be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorised." Now in this case there was not any earnest given, or any part payment, or any note or memorandum in writing. The question therefore is, Whether the buyer had accepted part of the goods sold, and actually received the same ? Now the word accepieci imports not merely that there should be a delivery by the seller, but that each party should do something by which the bargain should be bound. I do not mean, however, to say, that if the buyer were to take away the goods without the assent of the seller, that would not be sufiScient to bind him. In this case payment of the price was to be an act concurrent with the delivery of the horse ; at rifA>-a-i ^ny rate *there is nothing to show that either party understood L -I that the one was to precede the other. In the first instance, therefore, this was a mere contract between the parties. It is urged, however, that there was evidence for the jury to find that the defendant had exercised acts of ownership as to the horse, on the 20th September. It appears from the learned judge's report, that on that day he came to the plaintiff's house ; that he and his servant then rode the horse, and that he gave them some directions as to its future treatment ; and it is urged that these acts might be considered acts of ownership. I am of opinion, however, that the defendant had no right of property in the, horse until the price was paid ; he could not then exercise any right of ownership. If he had at that time rode away with the horse, the plain- tiff might have maintained trover. The distinction between this case and that of Blenkinsop v. Clayton is, that there the contract was not for ready money, but the horse was to be delivered within an hour, and the defendant treated it as his own by offering it for sale ; here the express CONTRACT Oi' SALE. 325 contract is for ready money, and the payment of the price is an act con- current with the delivery of the horse. I think, therefore, that the rule for a new trial must be made absolute. Bayley, J. — This was a ready money bargain, and the purchaser could have no right to take away the horse until he had paid the price. If the argument on the part of the plaintiff were to prevail, the de- fendant might have maintained an action for the horse without paying the price, which would be contrary to the express terms of the con- tract. HoLROYD, J. — The object of the Statute of Frauds was to remove all doubts as to the completion of the bargain, and it therefore requires some clear and unequivocal acts to be done in order to show that the thing had ceased to be in fieri. Those acts are either that the buyer shall accept part of the goods sold, and receive the same, or give something in ear- nest or in part payment, or that the contract be reduced to writing. These are all acts that clearly and unequivocally show that the bargain is executed. It is said that the riding of the horse by the defendant on the 20th September, and the directions then *given may be con- r»4^77-] sidered as acts of ownership, and were, therefore, evidence of an <- f acceptance of the horse; but at that time the defendant had no right to take away the horse. For admitting, for the sake of the argument, that the property had been changed, still there is no evidence to show that Tem- pest had ever parted with the possession or control, and if he had not, he had at all events a lien for the price, and the defendant could not be justified in taking it away until the price were paid. In Blenkinsop v. Clayton, the horse was to be delivered absolutely within an hour, and the purchaser had treated it as his own property, by offering to sell it to another; here, on the other hand, the horse was not to be delivered till the price was paid. Best, J. — I think that to take the case out of the Statute of Frauds, there should be some act so clear and unequivocal, as to show beyond all doubt that the purchaser had accepted the horse. There is here no act of that description. This was a ready money bargain, and the defend- ant would, therefore, acquire no property in the horse until he paid the price. The acts therefore done by him on the 20th September, could not be acts of ownership, for at that time he had acquired no right to exer- cise any act of ownership. Bule absolute. In the case of Randeau v. Wyatt, 2 H. Bl. 63, it was held that the Statute of Frauds was applicable, although the agreement had been admitted by the defend- ant in his answer to a bill in Chancery, filed by the plaintiff. In that case Lord Loughborough observed, — " Though the preventing perjury was one, it was not the sole object of the Statute ; another object was to lay down a clear and posi- tive rule to determine when the contract of sale should be complete. Accordingly the Statute has made it necessary that either the party buying should accept and receive part of the goods sold, or give something in earnest to bind the bargain ; or that there should be *some note or memorandum in writing signed by r^^tja-i the parties to the contract. Something, therefore, direct and specific, is t J to be done to show that the agreement is complete, that there may be no room for doubt and hesitation. This was the intention of the Statute in all contracts of sale above a certain value, in order to prevent confusion and uncertainty in the trans- actions of mankind J and we think it wise to adhere to that rule." IN SCOTLAND THE COMPLETION OF THE CONTRACT OF SALE DOES r*48ii NOT DIVEST THE SELLER OW THE PROPERTY OF THE ARTICLE ■- -" SOLD UNTIL DELIVERY TAKES PLACE, BUT WHERE A SPECIFIC EXISTING ARTICLE IS SOLD, THE COMPLETION OF THE CONTRACT TRANSFERS THE RISK TO THE PURCHASER, AND IF THE ARTICLE PERISH WITHOUT THE FAULT OF THE SELLER, THE PURCHASER IS LIABLE FOR THE PRICE. SALTER V. KNOX'S TRUSTEE. Feb. 1, 1786.— S. P. C. 391. On 13th December, 1785, Charles Salter paid to Knox and Company £63 sterling, as the price of sixty bolls of malt, to be afterwards delivered. On 2d February following, Knox and Company gave notice to Charles Salter, that the stipulated quantity of malt had been then measured and set apart for him. A few days after, however, Knox and Company stopped payment. The factor on their sequestrated estate took into his possession the whole malt found in their warehouses ; and Charles Salter petitioned the Court of Sessions, that the sixty bolls, for which he had paid, might, as his property, be delivered up to him. Pleaded /or the Petitioner The actual delivery of moveables, from hand to hand, is not in every case essential to a transmission of the property. Where the price has been paid, or even ubi fides hahita est de pretio, it has been found, that any act, expressive of the seller's design to divest himself, is sufficient for this purpose. Thus even symbolical delivery has been sustained, in a question with one who had afterwards attained the natural possession j — 1762, Gray v. Cowie. And, in express terms, it has been decided, that the weighing out of fungibles, whether the price has been paid or not, was equivalent to an immediate surrender of the property ; Fount. 27th July, 1710, Main v. Maxwell. *Answered for the Trustee.— Yhe general rule of law is un- ruf^Qo-i doubtedly, that Traditionibus, non nudis pactis, dominia rerum L J trans/eruntur. It is true, that in special circumstances our customs have introduced certain modes of symbolical tradition, wherein some- thing else is delivered as representing the subject intended to be con- veyed ; Erskine, b. 2, tit. 1, § 19. It is likewise true, that delivery may be effected without the personal intervention of the purchaser, as in the instance referred to, of goods weighed out in the public office to the purchaser's wife, and afterwards marked with the initials of his 328 ROSS ON OOMMEKOIAL LAW. name; in which case, as well as in those where symbolical tradition is allowed, the seller has no longer any power over the subjects sold. The present case, however, is very different. That no symbolical tradition took place, must be admitted. It is equally plain, that no actual delivery was made, either to the purchaser, or to any one in his behalf. The goods still remained, as before, in the custody, and under the adminis- tration of the original owners. They might have been, by voluntary conveyance, transferred to a third party ; they might have been attached by poinding at the suit of individual creditors ; and the sequestration which followed gave to the whole creditors a right equally broad. The Court were unanimous in rejecting this claim. It was observed ^y one of the Judges, That a purchaser had indeed an equitable claim to goods of which he had paid the price ; but however equity may afford relief, by undoing what has been illegally done, it cannot, in a question with third parties, supply the want of those Ihings which, though re- quired by the law, have been left undone. The Lords refused the petition. r*4R^l *^- " ^^'^ being perfected, and the thing deli-rered, the property thereof L J becomes the buyer's, if it was the seller's, and there is no dependence of it, till the price be paid or secured, as was in the civil law, neither hypothecation of it for the price." — Stair, 1, 14, 2, " Sale being complete, the question is, if the thing sold should perish by accident before delivery, and not after delay, and without the fault of the seller, whether the hazard be the seller's or the buyer's ? By the civil law the buyer hath the peril, and the peril is not the seller's, unless expressly he take the hazard, although the buyer buy rem non ohsignatam per aversionem ; all which putteth both the peril and profits of the thing sold upon the buyer, ejus estperi- culum cujus est commodum ; and it is far more clear, that the accession, fruits, and profits of things bought, are the buyer's, even before delivery ; and by the same ground, the peril must- be his also. The seller after the sale, is debtor for the delivery ; and it is a general rule, that the debtor is never obliged for the hazard of accidents, when he is debtor for a certain body ; but all agree that if the sale were of a fungible, as wine, oil, or grain, not considered as a particular body, as the wine in such a cellar, or the grain in such a house, but generally so much grain or wine, as a mere fungible, in that case the peril would be the seller's; because the perishing of any particular could not be the buyer's, seeing he bought no particular." — Stair, 1, 14, 7. 2. " Sale is a contract, whereby one of the parties becomes bound to deliver a certain subject or commodity to another, with a view of transferring the property, in consideration of a determinate price in current money to be paid for it. Though this contract is perfected by consent alone, it does not strike against the rule of law, that the property of things cannot be transferred but by tradition ; for though the contract is entered into and perfected with a view of transferring the property to the buyer, it is not actually transferred, but remains with the seller or vendor till the delivery of the subject."— Erskine, 3, 3, 2. 3. " Though the seller continues proprietor until delivery, yet if the subject perish before delivery, it perishes not to him, but to the purchaser; who may therefore be compelled to pay the price to the seller, notwithstanding the destruc- tion of the subject, according to the rule,^enc«tem rei vendiice nondum tradilce est emptoris, L. 8, pr. Deper. et com. rei vend. This makes an exception from another known rule, that everything must perish to the proprietor ; and the reason of it is, that the property, which continues in the seller till after delivery, is but nominal ; he is truly no better than the keeper of the subject for behoof of the purchaser, and so he is debtor for its delivery ; and no debtor for the delivery of r*4841 ^ special subject can in equity be *answerable for the casual misfortunes L *°*J to which it may be exposed." — Erskine, 3, 3, 1. CONTRACT OF BALE. 329 4, " There exUts in name though not in reality, a remarliable difference be- tween the law of Scotland and that of England relative to the effect produced on the right of property by the contract of sale. In England the completion of the mere contract is said to pass the property. But it is not the absolute property that so passes, it is only a qualified and imperfect right which subjects the buyer to the risk of the commodity, but confers on him no title to demand possession of it or to exercise any dominion over it. And it therefore cannot be said that the property passes otherwise than nominally, until the contract is followed by delivery and possession. In Scotland property is not transferred either nominally or effectually without delivery of the commodity; and yet the risk of the thing is with the buyer as completely as by the law of England, from the moment that the contract is completed. Essentially, therefore, the law of the two countries in this matter is the same, and yet it is very necessary to keep the nominal distinction in recollection in comparing the writings of lawyers or perusing the language of judicial decision in either country. The chief distinction in practical effect, between the English law in passing the property, and the Scottish in leaving the goods untransferred, is visible on occasion of a sale where the price has been paid. In England this entitles the buyer to possession, and in all cases at com- mon law makes a perfect transference, so that Ijhe creditors of the seller cannot take it. In Scotland the property is not passed, and the creditors of the seller are entitled to it as part of the fund of division. By the English Statute 21 Jas. I. cap. 19, the same practical effect is produced in England with that which results from the operation of the common law in Scotland : goods remaining in the seller's possession, although paid for, going to his creditors as if untrans- ferred."— Bell Com. 1, p. 166. 5. The case of Hutchison v. M'Donald, January 3, 1744, is thus reported by Lord Elchies : — "The Lords determined the general point that periculum rei venditcB nondum traditce lies on the buyer. The case was, — A parcel of spirits in the King's warehouses was sold and a bill given for the price, but the spirits not delivered ; and next day the warehouse was broken and the spirits taken away ; yet the buyer was liable for the price." In the notes to his collection of cases Lord Elchies observes : — " The Lords determined the general point that Lord Stair doubts of, and found that the periculum rei venditce nondum iradilce lies on the buyer." The passage in Lord Stair to which Lord Elchies refers is this : — " I have not observed it debated or decided with us^f the thing sold should there- after perish — that yet the price is due ; and if by common custom the seller had not forborne, in that *case doubtless the buyer would not have paid r*4Dfj-| willingly, which therefore seems to be our custom, seeing none have '• J obtained the price who did not deliver or offer the thing sold, which is also the opinion of Cujacius." 6. Where delivery is stipulated at a certain place different from the place of Bald, the risk continues with the seller until he implement his obligation to deliver at the place speiified. In the case of Melville v. Robertson, January 31, 1749, this exception to the general rule was not recognised. The bargain was that the seller was to deliver the victual purcl^ased at a certain place free of all charges and risk. When the victual arrived, a portion of it was found to be damaged in consequence of a storm which the vessel had encountered, and the buyer refused to pay the stipulated price, but claimed a deduction on account of the damage which the victual had sustained. The Ordinary found in favour of the buyer, but the Court found no damages due. Lord Kilkerran reports the ground of judgment as follows: — "The notion the Ordinary had conceived of the matter was, — That the seller was bound effectually to deliver the victual to the buyers free of dam- age, so as to make good to the buyers whatever loss they might sustain by the not . delivery. But the Lords had a different notion of it. They considered that as by the Roman law, so by ours, periculum rei venditce eat emptorit, and who, therefore, if the thing sold perish cam, must nevertheless be liable in the price ; as a few years ago was found in the spirits robbed from the Custom-house of Kirkaldy, the night after they had been sold, and bill given for the price, which nevertheless the buyer was found obliged to pay; and they considered the seller's undertaking the risk in this case to have meant no more than that the buyers should be free of the risk, and not be liable unless the cargo should arrive safe." In the case, how- over, of Miller v. Miller, February 1, 1809, where the circumstances were similar to those in the case of Melville v. Robertson, the Court " Found that the risk remained in the seller till delivery, in respect that by the bargain the grain was to 330 KOSS ON COMMERCIAL LAW. be shipped by the seller and delivered at Stirling shore." The plea of the defender was, that there was no doubt of the truth of the general rule that periculum rei venditce nondum traditce transit emptori, but in stipulating to deliver the grain at a particular place parties had formed a contract for themselves, and the sellers had thereby subjected themselves in the risk of all damage which might happen before such delivery, and this plea the Court sustained. *WHAT rs STJrFICIENT TO CONSTITUTE DELIVERT ? AND OUGHT ■- J CONSTRUCTIVE DELIVERT TO BE ADMITTED WHEN ACTUAL DE- LIVERT IS POSSIBLE, AND WHEN THE ARTICLE SOLD CONTINUES IN THE POSSESSION AND UNDER THE CONTROL OE THE SELLER ? I.— BOU&HTON V. AITCHISON. Nov. 15, 1809.— S. F. C. 411. On the 9th September, 1807, Messrs. J. and A. Aitchison, bakers in Edinburgh, purchased on trial from Crow and Wood, merchants in Leith, 8 bolls of wheat, at the price of 40s. per boll. The price was immedi- ately paid, and the wheat removed. Messrs. Aitchison having approved of the quality, returned to pur- chase a greater quantity, and a bargain was made for 90 bolls. The agreement was finished by the following missive, which included the 8 bolls formerly paid for and delivered: — "Leith, 17 th September, 1807. — Messrs. John and Alexander Aitohisons, — Gentlemen, We hereby offer you ninety-eight bolls of Virginia wheat at 40s. per boll, to be set- tled, one-half cash, the other half by bill at three months date. Tour obedient servant^, (Signed) Crow & Wood." This offer was accepted ; a bill at three months was granted for one- half of the price, the sum of £78 in cash was paid, and the balance of the price (£20) remained due. Grow and Wood kept their grain in granaries, and the care of the grain was entrusted to a servant (called Richard Ailken) hired by them. The duty of this person was to keep the keys, to turn the grain and preserve it in good order, and to deliver to purchasers the quantities sold. When the bargain was concluded, the following order was written by Grow and Wood: — "Deliver to John and Alexander Aitchison, Edin- burgh, ninety bolls Virginia wheat, from Cathie's high loft. (Signed) Crow and Wood." "Leith, 17th September, 1807," (addressed) "To Eichard Aitken." At this time there were in the lofts, in one promiscuous mass, what was supposed to be 161 bolls of wheq,t, of which a great part had been r*4871 ^°^^ *° different persons, but remained undelivered. *Between L -I the 17th September, the date of the order of delivery, and the 25th September, there were delivered to various purchasers 62 bolls; after which there should have remained 99i bolls, that is 9 J bolls more than had been purchased by the Aitchisons ; but, on measurement, there appeared to be only 61 bolls more. OONIBAOT or SALE. 331 It was alleged by the Aitohisons, that they had purchased a specific subject, and not a part of the undistinguished heap, i. e., they had pur- chased what should remain after the quantities sold were taken away; and that the mention of 98 bolls was only put on to limit the warrandice of the seller as to quantity. That they had offered to purchase 100 bolls of wheat, (including the 8 first delivered,) but that Crow and Wood had said the quantity remaining unsold did not amount, according to their books, to more than 90 bolls ; and that, beyond this, they could not warrant the quantity in their possession. It was further alleged, that, after the order of delivery directed to Richard Aitkin was intimated to him, he was paid (one shilling) by the purchasers for turning and taking care of the wheat ; that it was agreed that the wheat should remain for six months in the granary after the date of the sale, the expense of attending it being paid by them the purchasers ; and that this was the universal practice in all sales of grain to the bakers, to whom it was not convenient to remove a large quantity of grain at one time. These assertions were not admitted, although it did rather appear that the order had been intimated ; and this was understood by the Court to have been the fact. On the 80th September Crow and Wood stopped payment, and inti- mated their insolvency to their creditors j but, at this time, were not subject either to diligence or sequestration. . On the 1st October, the Aitohisons applied to Crow and Wood for delivery of the wheat; but this, in respect of the insolvency, was refused ; and, on the 2nd October, they protested that, if delivery was not given, an application would be made to the Judge Ordinary to com- pel it. On the 3rd October a petition for this purpose was presented to the Sheriff. In the meantime (8th October) sequestration was awarded of the estate of Crow and Wood. »0n the 14th October, the Sheriff ordained the defenders, or r^^Do-i the factor or trustee on their estate, to deliver the 90 bolls of L J wheat ; and this interlocutor became final. On the 23rd October, a factor on the sequestrated estate was appointed. On the 28th October, the Sheriff granted warrant to the officers of Court to pass to the lofts of Crow and Wood, and use the King's keys in opening the doors thereof, and to deliver the wheat as formerly ordered. In virtue of this warrant, delivery was obtained by the Aitchi- SODS. Charles Broughton, the interim factor, and afterwards trustee, pre- sented a bill of suspension and interdict against the Aitohisons to pre- vent them from selling, removing, or disposing of the wheat ; and the case having come before Lord Bannatyne, Ordinary, the following inter- locutor (28ih Nov. 1807) was pronounced : — "Upon the chargers finding caution to the satisfaction of the principal clerks of Session to make payment to the suspender of whatever sum shall ultimately be found to be the value of the wheat in question, in case the suspender shall be 332 ROSS ON OOMMEEOIAL LAW. found to have right thereto, allows the charger to use or dispose of the same at pleasure." And the case having been stated in memorials, the interlocutor of the Lord Ordinary (24th February, 1808,) was : — " In respect it does not appear that either the order of delivery by Messrs. Crow and Wood, the sellers, to the chargers, as purchasers, or that obtained from the Sheriff, could be held equivalent to actual delivery and possession of a quantity of wheat remaining in their warehouse at the time of their bankruptcy and sequestration of their estate, so as to operate a transfer of the pro- perty in their favour, or prevent its passing to the interim factor as part of their estate ; suspends the letters simpliciter." The cause then came before the Court on petition and answers. Pleaded for Messrs. Aitchison. — From the nature of the transaction with Messrs. Crow and Wood, the chargers had purchased a specific sub- r*4-8Q1 ^'^^^' ^'^^'' ^^^ quantity which it was *believed would remain after L J the quantities previously sold should be removed. The commo- dity could not be considered as part of a promiscuous and undistinguished mass, but as a subject special, distinguished, and separated as much as if it had been measured and laid aside. The removal of the property of the previous purchasers was the measurement of the subject sold to the chargers. Their purchase was limited to 98 bolls, with the sole view of defining the warrandice of the seller as to the quantity, and on the conviction, that this would have included the remainder. In point of fact, the remainder was too small to enter into consideration, or to affect the question. The purchase of the eight bolls could not be held as distinct from that of the 90 bolls, and must be held to be one inseparable transaction. That delivery of these eight bolls must be considered as delivery under the contract, and completing the real right under it. The order of delivery intimated to Richard Aitken, and the payment made to him for turning and attending to it, rendered him the mandatory for the chargers, and the custodier for their behoof. That this assimilated the case to that of goods bonded, or inpuhUca custodia, or in the posses- sion of a third party, virhere, on intimation of the sale, the custody is held to be for the behoof of the purchaser. Further, in this case the delivery taken by the buyer was all that, in the circumstances, could be taken with any convenience to mercantile dealings. That this was all the delivery which, in the practice of sales with the great class of persons constituting the trade of bakers, was ever thought necessary; and that the strict rules of the law, requiring direct corporal delivery, had been relaxed in many classes of cases from a re- gard to the fair occasions and necessities of trade, both by Scotch and English law. Bell Bank. Law, vol. ii. p. 55, 1st edit., 18th June 1764 j Buchanan Kames Sel. Dec, 27th July, 1710. Main Forbes Atk. Rep. vol. i. p. 185, where on a case remarkably similar to the present, the principle contended for by the charger was sustained ; Blackst., vol. ii. p. 447, 8, 9. That this principle had been recognized in the civil law in the clearest terms. — Dig. Lib. 41, tit. 2, L. 13-21. Poth Trait, du Droit, de prop. p. 1, sec. 202 and 208. OONTEAOT 01' SALE. 333 •After the partial delivery, after payment of the price, and r^^qn-i the order of delivery of the remainder, nothing more could he ■- -' done by the sellers. The contract of sale was complete; No further obligation or duty remained on the sellers. Their connexion with the subject ceased. They had no longer any legal disposal of it. They were considered as nothing more than custodiers for behoof of the purcha- sers, and not as liable to a debt for delivery, which intervening bank- ruptcy could prevent them from paying. Stair, b. 1, tit. 14, sec. 7; Ersk. b. 3, tit. 3, sec. 7; 2d August, 1781, Simson, Fae. Coll. In this case there had been no second purchaser obtaining a more com- plete or conclusive delivery, nor was there, strictly speaking, the interfer- ing interest of any third'party. The general creditors stood in the right, and were subject to the obligations of their debtors, whose place they filled, and whose functions they were entitled by law to perform. They were bound to take the wheat, therefore, tantum et tale as they held it. They had received the price ; and all that was required of them was to exhibit good faith, and allow the chargers to take what had been paid for. That the obligation on creditors of retaining or taking the commodity tantum et tale as it was in their debtor had even been carried farther than was now required. 15th Nov. 1786, Douglas, Heron, and Company, Fae. Coll.' The judicial demand made to the Judge Ordinary, and for which a warrant was afterwards granted, was equivalent to delivery. Crow and Wood were not at that time either under diligence or sequestration, and were in the full administration of their own aflFairs. Pleaded for Charles Broughton, Suspender. — In the case of a bank- rupt estate, the claims upon the fund to be distributed were divided into two classes — into personal rights, or that class denominated in the civil law jus ad rem ; and into real rights, or that class called jus in re. From the moment of declared bankruptcy the whole funds are held in law to belong to, and to be vested in, the creditors at large, and to be dis- tributable among them according as their rights may be personal or real. The creditors in the class of personal rights must *suffer such a r.^^qi-i proportional abatement as the deficiency of the funds may require ; L J and the creditors in the class of real rights are entitled to those subjects absolutely to which their real rights may extend. The general rule ap- plies, whether the object of the obligation or right be performance of a fact, or the payment of money, Poth. Pand. vol, iii. p. 272. It makes no difference, in point of principle, whether the debt has arisen from money borrowed, or from money paid for a commodity. Bankruptcy in the one case preventing the payment, and in the other preventing delivery, and in both leaving to the creditor nothing more than /as ad rem, a per- sonal claim. Therefore the argument of the creditors being in the same situation with the bankrupt, and being obliged to perform what he could not have refused, was ill-founded, for that would make personal rights equivalent to real in the competition of creditors on a bankrupt estate, contrary to the great principles of law just laid down. That therefore the chargei FBBRUAB.T, 1855. — ^22 334 BOSS ON COMMERCIAL LAW. had no case unless he could maintain that he had a real right to the grain itself. In the present case it was admitted that the contract of sale was com- pleted. That the quotations from Blackstone merely referred to the completion of the contract which is not denied ; and those from Stair and Erskine refer to the periculum rei venditse nondum traditae, which is quite a distinct subject. But it never was imagined that a real right was created by completion of the contract. These authorities lay it down explicitly that till delivery the seller is debtor, and the buyer cre- ditor for delivery. The necessity of delivery to the completion of a real right is unquestionable, and here the only question was, Whether the wheat could be considered in law to have been delivered to the purcha- ser, and whether the case could be placed within those relaxations of original strictness, recognised under the term of civil or constructive delivery ? In determining this point, no regard could be paid to the delivery of the first eight bolls. This made a separate transaction, and these bolls were paid for and removed before the rest were purchased. The first purchase might or might not have been followed by the second. It was finish,ed before the second was made, and the mere engrossment of r*a.Q91 ^* ^° ^^^ missive could not postpone its *true date. At any L J rate, delivery of some bolls from a heap could only complete the real right quoad the quantity actually delivered. In the sale of moveables the only symbolical delivery recognised was that of delivering the key of the repository where the goods are kept, and that in certain circumstances delivery to third parties had been sus- tained under the term of constructive delivery, as equivalent to delivery to the purchaser himself. But this has been limited to those cases in which actual delivery was impracticable. — Stair, b. 2, tit. 1, § 11 j Ersk. b. 8, tit. 8, § 8, b. 2, tit. 1, § 19. The cases of Salter and Simson furnish strong confirmation of these principles. In the latter case, constructive delivery was admitted, after much difiisrence of opinion, from absolute necessity, and in the former it was rejected although the commodity was actually measured off- and set apart. In this case, the grain lay in the loft in a mass, undistinguished from that of the other purchasers, and nothing was done by measuring it off, that was even proximate to specification, or delivery of the commodity. That in this sfate, each party was only creditor for his portion till deliv- ered; and if a part of it had perished, neither of them could have thrown the loss on the other, on the ground that the remainder was peculiarly the property of either — Pand. lib. 19, tit. 2, 1, 31. Even the removal by the previous purchasers of their portions did not identify the remainder as the property of the chargers, for there still was left a quantity belonging to Crow and Wood. The order of delivery addressed to their own servant could not amount to delivery, and was nothing more than an authority to give delivery, if required. If after the sale Eiohard Aitkin was the custodier of the pur- chasers, then the order was unnecessary. The written order could not .render him custodier for the purchasers more than a verbal order would CONTRACT or SALE. 335 have done. He remained their servant after its date, just as he had been before it, and must have been equally bound to obey a counter order from the same authority. Of the payment made to him, there was no evidence, and the small amount of it rendered it almost ludicrous to plead upon it. *The judicial demand for delivery, although it might have rje^^qo-i been equivalent to delivery if earlier made, came too late. It L J was not made till the 2d October, after the declared insolvency of Crow and Wood ; and, after this event, they were no longer entitled to ad- minister or alienate their property. After that period a bankrupt be- comes thp negotiorum gestor of his creditors. The Court were divided. , Lord Hermand observed, that there was no ground for distinguish- ing between the sale of the 8 bolls paid for and delivered, and the sale of the 90 bolls, which remained in the lofts; that the transaction was for 98 bolls, of which the removal of the 8 bolls was to be held as partial delivery ; that Aitken, the person who had charge of the wheat, had been paid by the Aitchisons for turning and taking care of it, and was to be considered as their servant, and as having the custody of it for their behoof; that the purchasers had an order of delivery which had been acted- upon by the removal of the 8 bolls, and that delivery of the remainder could not have been demanded by or given to any other persons. That the wheat stood at the risk of the purchasers, and that, in the cir- cumstances of the case, such delivery had been taken as was usual and practicable. Lord Balmuto and Lord Woodhouselee delivered their opinions to the same effect. Lord SuoooTH observed, that after the 25th Septembw, before which date various sales had been made, and various parcels of wheat had been removed, the quantity remaining was to be considered as the specific subject purchased by the chargers : and that the excess of the few bolls beyond the 90 bolls, which the charger had purchased, was not worthy of consideration, and could not enter into the question. That Aitken, who had the custody of the wheat had been paid for the care of it by the chargers, that the order of delivery had been intimated to him, and that he was to be considered as *their servant and custodier. That ri^An/ri the price was paid ; and, on the 1st and 2d October, before dili- L -' gence or sequestration had induced bankruptcy, the chargers formally demanded delivery of the wheat ; and that they had no other way of obtaining it but by a forcible entry into the granaries, which the law could neither require to be done, nor justify when done ; and that the application to the Sheriff, and the interlocutor thereon pronounced sub- sequently by him, must place the chargers in the same situation as if their demand had been complied with by the sellers. That, in these circumstances, the sellers must be held to have lost all control over the wheat, and the chargers to have obtained constructive delivery : That delivery of the key of the lofts would have been held to be complete and effectual tradition : That, between the foregoing circum- stances and delivery of the key, no solid distinction, in point of princi^ 336 ROSS ON COMMEROIAL LAW. pie, could be discovered; and the measures taken by the chargers, in the present case, were equally public and unequivocal. The Lord President Blair assumed, that the transaction for 8 bolls was distinct from that for the 90 bolls : That the former had been paid for and removed, and that the delivery then given went no farther than to secure and transfer the quantity actually delivered : That there was no evidence of any condition in the contract to allow the grain to remain for six weeks in the lofts ; and if such agreement had been proved, it would only have shown more clearly the intention of the purchasers not to take delivery during that period, and to trust to the credit of the sellers : That there was no ground for considering the purchasers as the tenants of the lofts during these six weeks : That there had been no new contract of location with the proprietors of the lofts, nor any transference actual or implied, by Crow and Wood, of the lease in favour of the pur- chasers for these six weeks, by which these lofts could be considered as their repositories. That there was no doubt a concluded contract of sale on the 17th Sep- tember, when Crow and Wood were solvent, and the purchasers had a good title to have compelled implement of it ; that is, delivery of the fmAqii-i wheat at that date. But that a claim *for implement of a con- 1- J tract was a mere personal right, and was, in pari -oasu, in a competition on a bankrupt estate, with an ordinary claim of debt for a sum of money : That, accordingly, the purchasers did not state themselves as creditors claiming to be ranked under the sequestration on the bank- rupt estate, but as proprietors of the wheat, of which the custody had re- mained with the bankrupt, but which was said not to form a part of his estate at all. That from the 30th of September, the period at which they declared their insolvency to their creditors, and not from the period of their se- questration, all their transactions must be stopped, and the claims or rights of the creditors must have their nature and extent determined as at that date. That the question for consideration was, Whether, at that date the property of the wheat was transferred, or whether there only existed a personal claim for delivery ? That, in determining this question, the fact of the price having been paid could not have the slightest influence : That this was perfectly clear and yet it was not easy to prevent this circumstance from affecting the opinion upon the whole question : That, to bring this to the test, it might be proper to suppose the present case reversed, — to suppose that Crow and Wood were solvent, that the Aitchisons had become insolvent, and the price had not been paid. Could it then be pretended, that the cre- ditors of the Aitchisons could have taken the wheat as part of their bank- rupt estates, offering no price but the chance of a dividend ? That this could not well have been maintained, yet the essential circumstances re- garding the property of the wheat would have remained unchanged : That it was necessary, therefore, to guard against the influence of this circumstance, which was of no just importance whatever, and to lay it aside entirely : That to transfer the property under the contract of sale, CONTKAOT OP SALE. 337 the consent to sell, and tradition of the commodity, were both indispen- sable : That, in heritable subjects, this was done by sasine, ■ and in movables by delivery. That, in requiring the transference of possession or tradition of the subject sold, to create a real right to it in the purchaser, the law under- stood that the same sort of possession which was formerly in the seller was afterwards in the purchaser : That, *in all cases of civil or r^Aqo-, constructive delivery, the same description and extent of posses- L J sion which was formerly in the seller is, after the sale, vested in the purchaser. That, in the present case, the wheat was not in the hands of a consig- nee, or depositary, or third party. It was in the actual and natural pos- session of the sellers ; — in their own lofts, or in lofts rented by them, which was the same thing. That this could not be called constructive or civil possession. It was as clear, absolute, unequivocal, and actual possession, as could bo had, without holding it themselves, or putting it in their pockets. It was the same possession which every man had of the furniture in his house, and every tradesman of the goods in his shop. It was the only possession which merchants could have of the immense subjects of commerce. That in the present case, this possession never was transferred, and no ostensible change of possession ever was accom- plished. That the intimation of the order of delivery did not, and could not, confer on the purchasers the same possession which was in the sellers. It could not render the hired servant of the sellers the servant of the purchasers ; it could not render the lofts, which were real or rented pro- perty of the sellers, the repositories of the purchasers. That, by the formality of intimation, a paper passed silently and secretly from the pocket of the one to that of the other. That this was no transference of possession or tradition by the law of Scotland. On the contrary, no alter- ation of the actual possession, as existing previous to the sale, had been made, and no ostensible act had been done to denote the change. Matters remained after the sale just as they had been before it. That the order was to authorize the servant to give, and to enable the purchasers to re- ceive delivery, and cannot, by any construction in the present case, be held to amount to that for which it was no more than authority. That the purchasers had never done what this order enabled them to do ; they allowed the possession to remain unaltered ; they took their chance of the bankruptcy of the seller, and must claim on the personal estate in the same manner as those personal creditors who had trusted. That there could be no such thing as a real right in the purchaser, retenta possessione by the seller. *That when goods are in the hands of a custodier, or a deposi- rif±(\T\ tary, or shipmaster, there can be no actual, but only civil pos- L J session ; and in such cases, the natural or actual possession, not being in the seller, cannot be given over by him, but the same possession is given to the purchaser which was in the seller ; and this is the criterion. That the practice of the trade of bakers, which may have arisen in the present case, was of no consequence, and must be altogether disregarded : 338 ROSS ON OOMMEROIAL LAW. That it did appear to be common for bakers to allow corn to remain in the possession of the seller. Why ? Because they could in general trust to the seller's solvency; but, whatever were their views, their practice could not change the general law of the country, to which it is the business of creditors to accommodate there dealings. Such practice must yield to those important and general rules of law which are estab- lished for the common security. By consulting the conveniency of their trade, and trusting to the security of the sellers, they do what is incom- patible with the creation of a real right in their persons to the commodity sold. That to permit the transference of property without tradition, or retenta possessione, would occasion the greatest hardship to individuals, and danger to trade. No purchaser could be secure from latent real rights ; but, after purchasing optima fide, and paying the price, and assuming possession, by removing the commodity, might be deprived of it by some previous purchaser, whose transaction had been completed as in the present instance, the seller retaining possession. That if the property of moveables could be transferred retenta posses- sione, there was no reason why a pledge, or hypothec, might not be con- stituted in the same way, and to create it, the proprietor had nothing more to do than to write an order of delivery to his own servant. But it was obvious, that nothing was more contrary to the commerce of movables, and to the best principles of the law of Scotland. That the application to the Sheriff was too late in its date to be of any avail in the case. If it had been made before the declaration of the bankruptcy, it might have been held to be equivalent to delivery. But before this application, the state of matters, as between the creditors aftd r#4.Q81 '^^ bankrupt, had *been fixed irrevocably by the declaration L J of bankruptcy, and no individual, and no Court could then interfere. Lord CRAia and Lord Bannattne delivered their opinions to the same effect. The interlocutor of Court (17th May 1809) was : — " Alter the inter- locutor reclaimed against, and find that the property of the wheat in ques- tion was legally vested in the petitioners; therefore find the letters orderly proceeded, and decern." And (15th Nov. 1809) on advising a reclaiming petition and answers, the Lords adhered. IL — LANa v. BRUCE. July r, 1832.— S. 10 Shaw, m. Rennie of Phantassie advertised a sale of cattle and sheep, by public roup, on the 27th July, 1829, under written articles, which, inter alia, contained these conditions : — " First, The stock to be put up in lots, and knocked down to the highest offerer, and afterwards to be at the risk of the purchaser. Second, The stock to be kept 14 days by OONTRAOT OF SALE. 339 the ex.poser ; or, if the purchaser should prefer lifting in equal propor- tions, coramencing the first week, then the last portions will be kept one month from the day of the sale. Third, The purchaser to pay ready money, or grant bill at two months, with security, before leaving the sale, for the stock purchased by him ; five per cent. ■ discount to be allowed for ready money." The cattle sold were put up in lots, in a court or yard in the posses- sion of Rennie. There were specific marks on the oattle of each lot when put up, except one lot of seven, which was distinguishable from all the rest by the absence of such marks, Thomas Lang, butcher in Glasgow, bought three lots of ewes, and four lots of cattle, at the roup, including the lot of cattle which was unmarked. Immediately after the sale, Lang caused the seven unmarked oattle to be driven to Glasgow ; the rest ■•of the r^^qq-i stock bought by him was driven away by persons said to be L J Bennie's servants, along with other stock, from the stackyard where the roup took place, to grazing parks occupied by Rennie. This was done in reference to the second article of roup ; and Lang averred, that he " himself superintended the driving of the cattle out of the stackyard to the said parks or enclosures, and took the assistance, for that purpose, of such persons as were around him." There were no locks on the gates of the parks into which they were driven. Next day Rennie's servants, by the direction of Lang, drove 40 of the ewes bought by him to a park in the neighbourhood of Edingburgh, belonging to Sir Robert Dick, and occupied by one Hutchison. Lang sent his servants from 6rIasgow to this park, who drove the ewes to Glasgow. He returned to Glasgow on the 29th August, and accepted two bills drawn upon him by Rennie, one for j6300 at two months, and one for £495 at three months. These bills covered the price of the stock bought at the roup, and 80 other ewes bought under another transaction. The bills were immediately discounted by Rennie, and eventually retired by Lang. On the 5th August, Lang wrote to Rennie's grieve, — " I will take it kind if you will send off to-morrow the ten stots that were sent to Markle, and put them into John Hutchison's park at Sir Robert Dick's, where 1 will have a man to take them away on Friday night or Saturday morning early ; and if you will be so good as send off forty of the ewes on Monday the 10th current, to the same park at Sir Robert Dick's, I will have another man there to take them away." Pursuant to this letter, 10 stots and 40 ewes were driven to Hutchison's parks by Rennie's servants, whence Lang's servants drove them to Glasgow. On the 13th of August, Rennie's law-agents, by his desire, addressed a circular to his creditors, stating, that " in consequence of embarrass- ments, which, it is hoped, will be only temporary, you are earnestly entreated to attend a meeting of the creditors of John Rennie, Esq. of Phantassie, to be held in the Royal Exchange Coffee-house, Edinburgh, on "Wednesday, the 19 th current, at two o'clock, when a state of his affairs will *be laid before the meeting, and a proposal submitted p.^qq-i for the consideration of the creditors. '- 340 BOSS ON OOMMEBCIAL LAW. "From the nature of Mr. Rennie's concerns, it is of the utmost con- sequence that a resolution as to the management of the affairs be imme- diately come to. " Any letters relative to the business of the meeting may be addressed to Gibson-Craigs and Wardlaw, No. 7, North St. Andrew Street, Edinburgh." At a period which Lang alleged to have been " within or about 14 days of the sale," he went to Phantassie to drive away the remainder of his cattle. Rennie's grieve refused to allow him to do so. On the 19th of August, a meeting of Rennie's creditors was held, at which Lang Was present. He alleged that he had received no circular as a creditor, and merely went to insist on his right to the stock bought by him. It was stated to the meeting that Rennie ought to be immediately made bankrupt, and steps were taken to do this as speedily as possible. A committee was named, " with full powers to arrange with all purchasers of cattle whether they shall be delivered or not," &c. On the same day, Lang caused his law-agents to write to Gibson-Craigs and Wardlaw, stating, that " some days ago" he had sent to Phantassie for his cattle, which were withheld ; and that he meant to apply to the Sheriff for authority to drive them off. He asked an order for delivery of the cattle, and added, that he was willing to find security for the two bills. On the 20th of August, Gibson-Craigs and Wardlaw, replied, that " the com- mittee appointed at the meeting of Mr. Rennie's creditors are willing to deliver this stock on obtaining satisfactory security that the bills will be paid. Therefore if Lang will retire the bills, the cattle will be deli- vered J if not, have the goodness to say what security he is willing to give, and it will be laid before the committee." On the 24th of August Lang's agents wrote : — '.' We beg to repeat what Mr. Lang offered ver- bally to you to-day, viz., that he is ready, upon receiving up the cattle, to find undoubted security for the amount of the bills ; and we beg to add, that as you explained to him to-day that the cattle would not be given up, even upon this being done, we shall to-morrow present a peti- tion to the Sheriff of Haddingtonshire." r*50n *^° ^^^ ^^*''' "^ August, a petition to the Sheriff was accord- L J ingly presented against Rennie, craving " to ordain him to desist and cease from interfering with the petitiolier and his servants, in driving away the remainder of the lots of stots and ewes," &c. The Sheriff ordered answers in 48 hours. On the 26th, another meeting of Rennie's creditors was held, at which the committee reported that they had refused « to give delivery of any of the stock which still remained in Mr. Ren- nie's possession." Messrs. Thomas Allan and others were then appointed «a committee till the first meeting under the sequestration," being recom- mended to sell any stock about which there was no dispute, "and to take all other measures regarding the estate, using their best discretion," &o. On the 27th, a paper was laid before the Sheriff of Haddingtonshire, entitled, — "Note for Messrs. Thomas Allan and others, a committee appointed at a meeting of the creditors of Mr. Rennie, held on the 26th of August," craving three days to answer Lang's petition. The Sheriff, on the same day, "refused the note, in respect that there is no mandate OONTKACT OF SALE. 341 produced for the parties presenting the note." On the 28th, the Sheriff ordained Eennie, who had lodged no answers, "to desist from interfering with Lang in driving away the stots and ewes as craved," &c. A reclaim- ing petition was, on the same day, lodged in the name of Kennie, pray- ing the Sheriff to find that the sale of the stock " not having been com- pleted by delivery, the property still on hand remains with the petitioner and his creditors, &c., or to sist procedure until all parties are called." The Sheriff ordered answers to this petition ; and on the same day (28th of August) a sequestration was awarded against Eennie under the Bank- rupt Act. On the 2nd of September, Beunie wrote to the agent who had presented the reclaiming petition to the Sheriff: — "This will be handed you by Mr. Lang, of Glasgow, who is one of the petitioners with regard to his cattle getting away, who, I think, from the security he offers, ought, in my opinion, to get away his cattle ; and I write this also to say, that you will stop all further proceedings in my name, both as regards him and the other two, M'Nicol and Peter Bell. When I signed the mandate to ybu, I really supposed it was in favour of them getting the stock away, instead of which, I am sorry to find, it [-*= An-i *has been the reverse; so, if any more proceedings is gone into >- J against these men, it must be done by some one else than me, as I con- sider it contrary to all justice." In the meantime a minute and claim was lodged in the name of the creditors of Rennie ; and on the 2nd of September, the Sheriff ordered it to be answered by Lang ; and on the 4th found the creditors of Ren- nie entitled to be heard for their interest, and appointed them to give in defences or answers. These were lodged in the name of Messrs. Thomas Allan and others, on the same day; aad on the 7th, the Sheriff found that Rennie could not be reponed against the decree of the 28th of Au- gust, but allowed Allan and others to petition to be reponed against it. A petition was given in for them, and on the 9th they were reponed. On the same day Bruce was appointed interim-factor on Rennie's estate, and on the 19th trustee, lie was sisted as a party on the 2 1st, in place of Allan and others; and a record was made up, in the course of which the stock in dispute was sold by consent of all parties, and the price was lodged in a bank to abide the issue of the causp. The Sheriff Found, "That at a public sale held at Phantassie, the 27th day of July, 1829, the petitioner purchased from Mr. John Ren- nie 29 stots and 120 ewes, and that he also, about the same time, pur- chased separately from him other 80 ewes, for the price whereof Mr. Rennie drew two bills, one payable at two months, and the other pay- able at three months after date, which were duly accepted; that seven of the stots were driven off the same, or the next day, to. Glasgow; that the other cattle, and the sheep purchased at the sale, remained after the same, on Mr. Rennie's farms, at his expense, till they should be sent for by the petitioner; that, soon after the sale, 40 of the said ewes were delivered on demand to the petitioner's servants, and that the petitioner having, about a week after, sent for other 10 stots and 40 ewes, they were also delivered ; that, within three weeks after the sale, the remain- ing ewes and stots being demanded by the petitioner, he was refused 342 ROSS ON COMMERCIAL LAW. delivery thereof by Mr. Bennie, on the ground of his being then insol- vent; that the agents for the committee appointed by Mr. Kennie's cre- . ditors, at their first meeting, offered *to deliver the sheep and L J cattle in question to the petitioner, if he should find satisfactory security; that the petitioner, on the other hand, offered to find security if the cattle and sheep were 'delivered, but that it is not alleged that satisfactory security was found ; that the petitioner having brought the present petition for interdict, was opposed by the committee of creditors, and thereafter by the entrant, as trustee on Mr. Kennie's sequestrated estate ; that the petitioner does not allege^ that, after the sale, he put any distinguishing marks on the cattle and sheep purchased ; that the 80 ewes, purchased as aforesaid, not being in Mr. Ronnie's custody at the time of the sale, no delivery of them was given, and it is not alleged that any afterwards took place : Finds, therefore, that, quoad them, the petitioner has no claim for interdict against the trustee on Mr. Rennie's sequestrated estates.; — in so far assoilzies the entrant, and decerns. But, in respect it is alleged by the petitioner, as to the other cattle and sheep left ■ on Mr. Rennie's farms, that the auctioneer at the public sale explained, that, on the lots being knocked down, they were to be held as delivered to the purchasers, and also that the petitioner superintended the driving of the said cattle and sheep, when purchased, to their plapos of destination after the sale ; before further answer, allows him a proof of his said allegations,''' &c. Lang having brought an advocation, with a view to have the proof taken before a jury, the Lord Ordinary Found "That it is not competent for the advocator to prove, by parol evidence, that the auctioneer declared at the sale, that, on th0 lots being knocked down, they were to be'deliyered to the purchasers, there being written articles of sale, in which there was no such provision : That it is not relevant to infer deli- very, that Mr. Rennie's servants, at the advocator's desire, and with his assistance, drove the sheep and cattle from the court where the auction took place to an adjoining field, both being tlie property, or in the ooou-' pation of Mr. Rennie : That there is no relevant allegation, either of constructive or symbolical delivery of the sheep and cattle to the advo- cator; therefore advocated the cause, assoilzied the respondent, the trus- tee on Rennie's sequestrated estate, from the advocator's claim of inter- r*504n '^'*''' *adhered to the interlocutors pronounced in the Inferior L J Court before the record was closed — reserving the advocator's claim against Mr. Rennie's creditors, or their committee, in consequence of the letter of their agents, dated 20th of August, 1829 : Found no expenses due," &c. Lang having reclaimed; The Court ordered cases, and afterwards required the opinion of the whole Judges. Lords Glenleb, Crinqletie, Fullerton, and Moncreiff, returned this opinion : — , " In July, 1829, John Rennie, then carrying on extensive business as a farmer, advertised a sale by auction of cattle and sheep, to take place on the 27th of that month. The pursuer, Mr. Lang, states, that written articles of sale were read CONTRACT OF SALE. 343 over by the auctioneer, and, though this is denied by the defender, it is not disputed that there were written articles in the terms quoted in the condescendence. The three first articles were in these words: — '1st, The stock to be put up in lots, and knocked down to the highest oflferer, and afterwards to be at the risk of the purchaser.' ' 2d, The stock to be kept 14 days by the exposer, or, if the pur- chaser should prefer lifting in equal proportions, commencing the first week, then the last portion will be kept one month from the day of the sale.' ' 3rd, The purchaser to pay ready money, or grant bills at two months, with security, before leaving the sale, for the stock purchased by hira ; five per cent, discount to be allowed for ready money.' The pursuer states, that the auctioneer verbally announced, that the lots were to be considered as delivered as soon as they were knocked down to the purchaser. But this is not expressed in any of the written articles, and the Lord Ordinary has found it incompetent to be proved by parol. The pursuer purchased 129 ewes for £209, and 29 oxen for £466, 10s., in all £675, 10s. ; besides 80 ewes, which were not on the farm at the time, and about which there is no question. The cattle and sheep were exposed to sale in the stackyard, j.^-^.- •and immediately after being bought, they were removed by per- L J sons attending for the purpose, to fields belonging to Rennie, the use of which was granted for the time to the purchasers, in terms of the arti- cles of sale, for keeping the cattle and sheep, till they could be conveni- ently removed. All these animals bore marks which had been put on them before the sale, except one lot, and those composing it were equally marked, so as to be distinguished from all the rest by this pecu- liarity. The pursuer was not required to find security, as provided by the third article. But Mr. Rennie, who clearly had power to dispense with the condition, drew two bills on the pursuer, of the date of the sale — one for £300 pounds at two months, and the other for £495 at three months, making £795, which sura included the price of the 80 ewes, not involved in this question. These bills the pursuer accepted ; they were discount- ed by Mr. Rennie, and paid by the pursuer when they fell due. On the day of the sale, or the day after, the pursuer drove oflf from the ground seven of the oxen and forty of the ewes, and on the 5th of August, he brought away ten more oxen and forty ewes. Mr. Rennie went to London soon after the sale, and returned about the 12th of August. On the 13th of August, a letter was addressed to some of Mr. Rennie's creditors, which stated, that 'in consequence of embarassments, which it is hoped will bejonly temporary, they were re- quested to attend a meeting on the 19th.' The pursuer states that about 14 days after the sale, he went to Phan- tassie for the purpose of driving away the remainder of the cattle and sheep which he had purchased — that he did not see Mr Rennie — and that his grieve or foreman refused to allow him to take them away. He adds, that this was before there was any public notification, and before he knew 314 ROSS ON OOMMEROIAL LAW. anytbing of Mr. Eennie's insolvency. But we think, from the circum- stances stated by both parties, that it must have been after the circular letter was addressed to the creditors, though it seems probable that Mr. Rennie did not consider the pursuer as a creditor, and may not have ad- dressed any letter to him. The refusal to allow the pursuer to take away the cattle, appears to r*f^nRl ^^^^ taken place by the interference of a committee *of Rennie's L J creditors ; — Rennie himself has disclaimed it. The pursuer then applied to Mr. G-ibson-Craig, as Rennie's agent, who answered, that if the pursuer would find security to pay his bills, the cattle and ewes should be delivered. The pursuer came to Edinburgh, and says he offered se- curity; but, in the meantime, the creditors had changed their minds, and would not give delivery. The pursuer then presented his petition to the Sheriff, praying him to ordain Rennie to desist and cease from interfering with the petitioner and his servants, in driving away the remainder of the lots of stots and ewes which he had purchased, and to deliver them up to him, and for damages. There is no doubt that this petition was presented while there was as yet no sequestration, or application for se- questration. No appearance was made for Rennie at first; but appear- ance was made for certain gentlemen, as a committee of his creditors, by a note, asking further time to.answer. This was refused, in respect that no mandate was produced, and on the 28th August the Sheriff gave de- cree. A reclaiming petition was put in in Rennie's name, which he im- mediately disclaimed. The first deliverance on the petition for sequestration of Mr. Rennie's estate, was on the 28th August, 1829. The' proceedings then went on before the Sheriff, and he allowed the pursuer to prove his averment, that it was verbally anounoed at the sale, that the lots were to be considered as delivered as soon as they were knocked down to the purchaser. The pursuer brought an advocation on the Act 6th Geo. IV. c. 120, § 40, in order that the proof might be taken fcy a jury. Under this advocation the whole merits of the case were discussed be- fore Lord Corehouse, and his Lordship pronounced his interlocutor, find- ing it not competent to prove the pursuer's averment by parol, in respect that there were written articles — finding it not relevant to infer delivery, that Rennie's servants, by the pursuers desire, drove the sheep and cattle to the adjoining fields, the property or in the occupation of Rennie — and finding that there was no relevant allegation either of constructive or sym- bolical delivery. From this state of facts, we are of opinion that two questions of import- r*50Tl ^^'^^ ^^'^^^ — ■'■^'' ^''^'''^^'^ ^^^ ®^1^ is to be considered *as having L J been completed by delivery, either on the day of the auction, or at any time before Mr. Rennie's declaration of insolvency? And 2d, Supposing that the sale was not completed by. delivery, whether Mr. Lang was entitled to demand delivery, posterior to the time when the circular letter to Mr. Rennie's creditors was issued, and at the date of his petition to the Sheriff? 1st, We are of opinion that the question, whether the sale was com- OONTSAOT OF SALE. 345 I plctcd by delivery, actual or constructive, is attended with great difficulty. The transaction is one of a very peculiar nature, and the effect of it must be considered, by taking a comprehensive view of all its distin- guishing qualities. We are of opinion that the interlocutor of the Lord Ordinary is right, in holding that it is not competent to prove, by parol, that anything vras stated by the auctioneer which is not expressed in the written articles. Bjit laying this aside, we think that there are circumstances in the con- ditions of sale, which are deserving of great attention. The sale was by public auction, a circumstance by no means unimpor- tant, because the auctioneer, in such a case, does in some sense stand between the vender and the purchaser, and there is a public act in the declaration of the purchase- in the presence of the company. The sale was not made in the place where the cattle and sheep were naturally ; they wore brought to the court-yard for the purpose. The first article bears, that as soon as a lot is knocked down, it shall be at the risk of the purchaser. We are aware that this is not conclusive as to the question of delivery, but it is undoubtedly a material circumstance in that ques- tion. Then, by the second article, it is stipulated in favour of the pur- chaser, that the stock shall be kept 14 days by the exposer, and, in the option of the purchaser, the last portion of any lot shall be kept one month, implying, of course, without grass-mail. This appears to us to be highly important. The purchaser had a right to carry away the stock instantly after the sale j but, from the nature of the trade, this would be impracticable for many persons likely to become purchasers, and there- fore, in order to induce them to offer, it is held out to them as a benefit, and an additional value on the thing sold, that they are to be entitled to •feed the animals on the grounds of the vender for a limited r*cno-i time. '- -■ There can be no doubt that it will be a very hard matter if this pro- vision for the purchaser's benefit shall be turned to his grievous loss. The legal effect may be so. But the hardship is so clear, that a court of law must be well satisfied of the principle which requires it, before pro- nouncing such a decision. We hold the price to have been paid, because Mr. Rennie received the pursuer's accepted bills in the form in which he chose to draw them, and these bills were discounted by Rennie, and have been paid. The cattle and sheep were driven from the court-yard into the fields appointed, in terras of the articles. A part were taken away immedi- ately, and another part some time after, and they were taken without any new warrant or order from Rennie, or from the auctioneer, but as a matter of course at the will of the pursuer. If there had been nothing in the articles of roup binding the exposer to keep the stock for a limited time, and if the pursuer had driven his cattle from the yard to a certain distance, and had then made a separate bargain with Rennie, to keep them in the very same fields into which they were put, upon a grass-mail, we presume it could scarcely have been disputed that they were delivered, and that neither Rennie nor his credi- tors could afterwards have retained them. 346 ROSS ON COMMERCIAL LAW. The question is, Whether there is any essential difference between the case as it stands and that case ? The difference is, that here it is pars contractus that the stock shall be kept by the exposer. The fields are given to the use of the purchaser by the articles of sale. The grass-mail is paid in the price paid for the whole thing stipulated, including this benefit. The animals are all marked, and separated from all others. There is no division still to take place of a part from a larger quantity. And, finally, .they are placed in open fields, clearly intended to be at the command of the purchasers. We have considerable difficulty in seeing a solid principle for holding that the purchaser had not a legal possession under such circumstances. We do not consider it to have been a symbolical delivery, nor do we think r*fiflQn ^^^^ ^^^"^^ ^s properly any *question about constructive delivery. L J The doubt we entertain is, whether the facts ought not to be regarded as constituting an actual possession in the purchaser, in the same manner as if the cattle and ewes had been driven into the fields of a neighbouring farmer, to be kept for the purchaser's behoof. Although, however, we are strongly moved by this view of the case, and should not be prepared to decide against the pursuer, if the case entirely depended on it, we are sensible that it is a point of great diffi- culty, and that, according to the more rigid principles of the law of sale, there may be legal ground for holding that the sale was not completed even under such circumstances. And therefore we do not mean to rest our opinion on the whole merits of the case upon this point. 2d, The second question is, Whether, supposing that the sale was not completed by delivery, the resistance or obstruction which was given to the pursuer, when he went for the purpose of taking away the cattle and ewes, was a legal resistance, and whether he had a right to take delivery when he so attempted it, and to obtain an order to enforce his right, at the time when he presented his petition to the sheriff? This point is not particularly adverted to in the Lord Ordinary's inter- locutor, but it appears to us to be of great importance ; and we are of opinion that the pursuer's argument with regard to it is well founded in law. The proposition maintained by the defender on this part of the case seems to be, that- mere insolvency, or, at all events, insolvency in any manner declared, deprives a man of all power of dealing with his pro- perty, and from this he infers, that even where goods have been sold and the price paid, it is incompetent for him to give, or for the purchaser to take delivery. We are not prepared to assent to this doctrine. Excepting one dictum of an eminent Judge, standing opposed to the judgment in the case in which it was delivered, and in the reports of which we strongly apprehend there must be some mistake, we have seen no' authority for giving so strong an effect to mere insolvency, without either diligence or seques- tration. In the passage quoted from Mr. Bell's work in the defender's case, though other paifticular oases are mentioned, no such case is stated r*5101 "■^ ^^^^ "■^ '^^ delivery of goods which had been fairly *soid L -I and the price paid, and which, by the terms of sale, were in- CONTRACT OF SALE. 347 stantly deliverable. The passage is taken from tbat part of the learned author's work, which treats merely of the general principle of the bank- rupt law. But to hold that a man's whole property is literally trans- ferred to his creditors by the mere fact of insolvency, and that no legal transaction can take place regarding it, would supersede a yast portion of the existing bankrupt law, and cut down a great many transactions, as to the legality of which there is at present no doubt. The principle of both the ancient bankrupt statutes stands directly opposed to this idea. For the Act, 1621, would have been entirely useless, if it had been true that, at common law, a man is by mere insolvency di- vested of his whole property, and that itbecomes thereby completely vested in his creditors ; and with regard to the Act, 1696, the whole structure of it supposes that notour bankruptcy, by diligence, must be added to insolvency, before the deeds and transactions to which it applies can be set aside, even by reduction, and the numerous decisions upon that Stat- ute abundantly prove that even the application of the principle of it is far from being universal. The same may be said of the modern statute of 54 Geo. III., which besides the qualified character of its enactment, generally contains the express clause, — ' Declaring always, that nothing herein contained shall oblige a bona fide purchaser of any part of the moveable eflFects from the bankrupt while in actual possession, and for a price paid, to restore the eflFects so purchased, nor the debtor of a bank- rupt who has paid his debt to him bona fide before he knew of the bank- ruptcy, to pay it a second time to the trustee.' This language of the statute certainly stands very much opposed to the defender's notion of the common law, in the way he applies it to this case. Such statutes could never have existed if that idea had been correct. But the clause just quoted stands in diametrical opposition to the general doctrine maintained, as it proves, that the property of a man who is insolvent, is not transferred to his creditors by insolvency alone, and that he is not divested of all power of transacting with regard to it. It is clear that the pursuer demanded, or went for the *pur- r-,Kiii pose of taking complete delivery of the remainder of his stock, L J before there was any diligence or sequestration. If Rennie had been there himself, it is clear that he would not have resisted this. But it was resisted by a self-constituted committee of creditors, or by the ser- vants under their orders. They pretended no judicial authority, and they had no diligence to vest any such right in them. We humbly think, therefore, that as the pursuer did what he could to obtain complete possession of the stock, and was only prevented from obtaining it by an interference on the part of interested and unautho- rized individuals, the case must clearly be treated in the same manner as if he had actually got possession of the animals, in so far as he had it not before, and the question now was, Whether he was bound to restore them ? And we are the more decidedly of this opinion, because the pursuer resorted to the legal remedy, while yet there was no sequestration. Being resisted in his endeavour to take away the stock, he demanded the autho- 348 BOSS ON COMMERCIAL LAW. rity of the Sheriff to compel delivery. We attach great importance to this proceeding ; supposing even that there was any delicacy in Rennie's own situation, or in that of his servants, and passing over the irregu- lar interference of the creditors, we cannot see that any good answer could be made to the pursuer's judical demand of delivery at- that time ; Rennie made none, and could made none. The creditors had no persona standi, except in his name, and they could attempt nothing, ex- cept for the purpose of gaining time, till a sequestration should be awarded. But it appears to us, that the pursuer's petition to the Sheriff must stand or fall by its merits, at the date when it was presenied. The sequestration may have made a difference in other views. But as to the present point, it seems to be altogether unimportant. Notwithstanding what had happened, there might never have been any sequestration, or there might have been none for months after. And the question is, What legal answer could be made to a man, who had purchased stock at a public auction, who had paid the price, taken delivery of a part of the animals, and been resisted in removing the rest, and who now de- manded from the Sheriff an order on the vendor, not being legally bank- r*Kion rupt, to deliver the remainder ? We can see no *good answer, L J and therefore we conclude that he was entitled to the decree of the Sheriff, which he obtained in the first instance. And being of this opinion, we think that this case is the same ■ as it would have been if the cattle and ewes had been actually taken away from the fields at the time when the pursuer first went for the purpose, and was resisted. If that had been the state of the case, we should first inquire, whether any of the Bankrupt Statutes could have been held to apply to it. We think not. The Statute, 1621, is out of the question ; for the pursuer was neither coujunt nor confident, and he had paid a full and fair price for the stock of which he would thus have obtained delivery. Would the Act, 1696, have applied to it ? No attempt has been made to show that it would — there is no reduction of the transaction such as the Act required. And we think it very clear that it would not have applied. The sale was a bona fide sale itself, within sixty days of the bankruptcy. The obligation was for instant delivery, and the delay of delivery was solely for the accommodation of the purchaser, but in his option. This, therefore, never could be converted either into the undue payment of a prior debt, or into an undue preference of any kind. It would be but due implement of an onerous contract, bona fide entered into within the . sixty days. But, most especially, nothing of the kind could be main- tained, if it be true, as we have stated, that the pursuer had a right to the order of the Sheriff to compel delivery. The idea of a partial pre- ference originating in such a contract, to be reduced on the Act, 1696, seems to us to be altogether untenable; and it has not been stated. But if the transaction could not have been touched upon the Bankrupt Statutes, could it have been reduced, and restoration claimed at common law ? We are unable to discover any authority for such a conclusion. To say that there could be fraud in the pursuer attempting to take pos- session of the articles which he had honestly purchased and paid for, and had only left in the fields on a bargain for his own benefit, seems to ub OONTEAOT OF SALE. 34^ to be impossible. And if there was truly no legal obstacle to his de- mand of delivery, when he made it judicially, fraud, whether actual or constructive, must be out of the case. *And what, then, is the ground at common law, on which it rsc-jo-i could be maintained that the claim of repetition would have been L J well founded ? The defender can only revert to his general proposition, that, by the declared insolvency, the property was transferred to the creditors. No question remains as. to Kennie's power of doing a volun- tary act, if the pursuer had a right to delivery by order of the Sheriff. But in truth no voluntary act was necessary. The pursuer could have taken away his cattle without any. aid from Rennie or his servants. They were not locked up like grain in a granary. They had not to be measured or parcelled out from any larger quantity. In short, it required a voluntary act by Eennie, or by some one, to prevent delivery. But at all hazards, the order of the Sheriff must have excluded the idea of anything being done by voluntary act. Is it to be held, then, that the property was actually transferred by insolvency ? This is the point pressed by the defender for decision. We have stated our reasons for thinking that it is not well founded in its application to this case; and we have only now to advert to the single authority to which the defender refers in support of his doctrine, in the dictum ascribed to a learned Judge, most justly esteemed as a high authority in the law. The case of Broughton v. Aitchison, November 16, 1809, related to the sale of a definite quantity of wheat to be delivered out of a certain loft, from a larger quantity which was there lying. It was a sale by private bargain. The price, or nearly the whole price, was considered as paid. An order of delivery was granted, and was held to have been intimated, and the purchasers paid one-shilling to the vender's servant for turning the grain. It was kept in a looked granary, and the key was in the possession of the vender's servant. The vender stopt payment on the 30th September. On the Ist October, the purchaser demanded delivery, which was refused by the venders themselves. On the 3d October they applied to the Sheriff; on the 8th, sequestration was awarded; and, on the 14th, the Sheriff gave an order for delivery. That was evidently a very nice case. The judgment of the Court sustained the right of the purchaser ; but the defender says that the Court were nearly divided, that it was against the *opinion of ^^g^... the Lord President, and that the authority of it has since been L J doubted. We think that the decision is doubtful, though, without see- ing more of the circumstances than appears from the report, we are not prepared to say that it was positively wrong. But the doubts which we entertain concerning it arise from the circumstances in which it dif- fered from the present case. It was not a sale of specific marked articles, but of a specified number of bolls of grain, to be separated and measured out from a laijger quantity, the allegation made to the contrary being inconsistent with the terms of the written contract. The grain had never been separated, nor at all moved from the granary, from first to last. It remained under the lock and key of the venders. Under these circumstances, delivery could only be got by voluntary acts, still to be February, 1855. — 23 350 ROSS ON OOMMEROIAL LAW. performed by the venders ; and they thought themselves bound to refuse to do any such act, after a very public stoppage of payment. In all these points, the case was opposite to the present case. We are not sur- prised that there vrere doubts regarding it, but we are of opinion that the same difficulties do not attach to the case now under consideration. Here the specific cattle and ewes were sold in an auction-yard, being previously marked and separated from all others. Though they were moved back to the vender's fields, this was on a specific bargain for the purchaser's convenience. They were in open fields, from which the pur- chaser could take them when he pleased, and it was only as a matter of propriety that he gave notice to the vender's servant when he did so. Part were taken at difi'erent times, and he came for the rest, but was resisted. We think that there is the most marked difi'erence in these facts. And there is to be added to them, that the declaration of insol- vency was not of the same decided and public nature which occurred in that- case. A great part of the observations ascribed to the Lord President upon that case appear to be consistent with sound principles of law, though we do not think that they apply to the present case, and might not be free from difficulty, even in their application to the whole circumstances of that case. But if the defender is justified in deducing from the differ- ent notes of his Lordship's speech, the abstract proposition that, after ri.f--i K-i any ^declaration of embarrassment or insolvency, such as that L J which was made by Mr. Jlennie, the bankrupt's property is actu- ally transferred to his creditors, and nothing can be legally done with regard to it, we are of opinion, with the utmost respect to that high authority, that the proposition is too broad ; and, in particular, that it is not well founded in its application to such, a case as the present. On the whole, we are of opinion that the pursuer was entitled to decree under his application to the Sheriff, and that he is still entitled to a judgment in his favour for the value of the cattle and ewes in ques- tion." Lord CaiNGLBTiE, in subscribing this opinion, added the following note: — "The foregoing opinion is particularly guarded in some points on which I would be more determined ; nevertheless I do not think it objectionable on that account, and most heartily concur in it." Lords Justice-Clerk, Meadowbank, Mackenzie, Corehouse, Medwyn, and NEvraoN, returned this opinion : — " There is little differ- ence betwixt the parties in this case as to the facts; and the decision seems to depend on two questions in point of 'law. These are, 1st, Whether or not the circumstances in which the sale to the pursuer took place, or those which immediately followed the sale, amounted to delivery, so as to transfer the property of the cattle bought from Mr. Eennie to the pursuer ? And, 2nd, Supposing there was no delivery at the time of the sale, was Mr. Eennie or his overseer jus- tifiable in refusing to deliver the remaining lots, when these were demanded by the pursuer, subsequently to Mr. Rennie's declaration of insolvency ? .On the first point we do not think that there were any circumstances OONTEAOT OP SALE. 351 at the time of the sale, which can be held equivalent to delivery. Here it is necessary to lay out of view the alleged verbal declaration of the auctioneer, as we are of opinion that the interlocutor of the Lord Ordi- nary is clearly right, in so far as it finds that such declaration cannot be proved by parol testimony. Taking the articles of roup then as they stand, the only one which can have any effect on the question, rmKi/^-i *i8 that by which the exposer became bound to keep the cattle L J sold for certain specified periods ; but this cannot, in our opinion, have the effect either of delivery, or of rendering delivery unnecessary. It appears to mean nothing more than that the buyer should have the power, for his accommodation, to delay taking delivery for the periods limited. In every case of sale, whore the article bought cannot be kept without expense — as, for example, that of horses or cattle — it is the interest of the seller to avoid this expense by immediate delivery; while, on the other hand, if the buyer has no immediate occasion for the article, or means of applying it instantly to profit, it is his interest to stipulate that the seller shall retain the possession until it suits him to take deli- very. For this burden, where he undertakes it, the seller, it may be presumed, receives a higher price ; but the stipulation does not change the law as to the transference of property, so as to render the bare con- tract effectual for this purpose. Neither does anything which took place immediately after the sale appear suflScient to operate as a transference of the property. The cattle being previously the property of Mr. Bennie, and in his possession, were brought from his enclosures to the yard where they were exhibited and exposed to roup ; and after the sale they were driven back into these enclosures; mixed with other stock of his pasturing there, and left under the charge of his servants exactly as before. They were driven back by his servants, and though the pursuer may have assisted them in doing so, it does not appear to us that this can alter the law. Had the pursuer, indeed, before the cattle were so carried back to their pastures, put his mark upon them, there might have been some room for contending that this amounted to a taking of possession ; but. nothing of this kind took place. He argues, no doubt, that, as the cattle had all previously marks upon them, by which they were easily distin- guishable, such new marking would have been preposterous ; and thence concludes that the property passed without it. But he overlooks that the purpose of applying the buyer's mark in such a case, is not to dis- tinguish the animal from others of the same kind, but to point out that it has become the buyer's. It produces its ^effects only as a j-!|cki7-i symbolical taking of possession, and as indicating that if the L J article is allowed still to remain with the seller, it remains, not as his property, but as a deposit, or the subject of location. Holding, therefore, that there was no di£5culty at the time of the sale, the second and more difficult question comes under consideration, Was Mr. Bennie, or those acting for him, justifiable in refusing to deli- ver when called upon ? If they were not so, then their refusal was evi- dently a wrong, which, as it was committed solely with a view to the 352 EOSS ON COMMERCIAL LAW. interest of the general body of creditors, and for their benefit and behoof, cannot be allowed to avail them in the present competition. On this point we are disposed to concur in the law as laid down by the late Lord President Blair, in the case of Broughton v. Aitchison — namely, that after proclaimed insolvency, the bankrupt can legally do no act to affect or change the rights of his creditors inter se. Having called them together for the purpose of placing the administration of his affairs in their hands in order to their payment, he cannot be suffered afterwards to do anything which either has the effect of benefiting the general body at the expense of an individual creditor, or which gives to an individual a preference to which, in the distribution, he would other- wise have had no right j and as the wrong thus committed is done, not for the benefit of the bankrupt himself, who can in general have no interest individually in the matter, but to serve that of the creditors meant to be favoured, they are not entitled to profit by what has been done for their behoof. We think the general doctrine above stated is. strongly supported by a decision in a case which is the converse of the present, 9th July, 1828, Schuurmans and Sons v. Goldie, 6 Shaw, 1110. Here the bankrupt, after having declared his insolvency by- a circular letter, calling a meet- ing of his creditors, took delivery of a cargo of cheese, which he had ordered from a Butcb mercantile house ; but it was found that the cre- ditors in general were not entitled to profit by this wrong; and the trustee was ordered to rank the sellers preferably for the price. There was this peculiarity no doubt in the case, that a copy of the circular r*fi1S1 '^^**'®''» addressed to an *agent for the sellers in Leith, was, by ^ -I neglect or design, kept back after those to other creditors had been sent, so that it could not have been received till after delivery was taken ; and it was said that, if the agent had received information as soon as the other creditors did, he might have stopped the goods in trcm- situ. But it does not appear that the delay to send notice, granting it to have been designed, was a fraud of a different nature from that of taking delivery in the circumstances, or that the general body of the creditors was entitled to profit by the one act more than by the other. And we see, therefore, no sufficient reason to think that the result would have been different, though the Dutch house had had no agent in this country to whom notice could have been sent. It is contended, however, that in the present case no Act was neces- sary on the part of Mr. Eennie, in order to give delivery ^o the pursuer. The cattle and sheep were, it is said, in enclosures which were open to tbe public, there being no locks on the gates, so that the pursuer might have taken them away without applying to Mr. Rennie at all. But it does not appear to us that the pursuer could, without the knowledge and consent of Mr. Eennie, or those acting for him, have had a right to enter these enclosures, and to remove the stock pasturing therej or that it makes any difference in that respect whether the gates were locked or not. The creditor, in an obligation to deliver a specific subject, is no more than an ordinary creditor, entitled to take implement at his own hand, without the consent of the debtor in the obligation. He has no CONTEAOT OF SALE. 353 more right, without this consent, to take a horse he has purchased out of the stable of the seller which he finds unlocked, than a creditor has to take payment of his debt from money in the repositories of the debtor, if be shall chance to find them open. But if the seller's consent is thus necessary before he can be legally deprived of the possession, the giving of this consent is an act on hia part; and as it is an act which has a material effect on the rights of his creditors, by converting the personal right to claim delivery into the real right of property, it is one which cannot legally take place after a decla- ration of insolvency. *0n the whole, therefore, though the pursuer's case is cer- r-^^^n-icn tainly a hard one, we are disposed to think the interlocutor of L ^^J the Lord Ordinary well founded, and that it ought to be adhered to." On resuming the consideration of the case, Lords President, Balgray, and G-illies, intimated that they agreed with Lords Glenlee, &c. ; and Lord Craigie concurred with the Lord Justice Clerk, &c. The whole fourteen judges were thus equally divided, and, after the case had stood over for some time, it was suggested to Lord Craigie by the majority of the Lords of the First Division, that his Lordship should (as was said to bo the practice in England in s)ich circumstances) withhold his vote, so that it might be possible to pronounce a decision, against which the losing party had the remedy of an appeal. Lord Craigie adopted this suggestion, and the following interlocutor was pronounced : — "In respect of the whole fourteen judges being equally divided in opinion, and Lord Craigie having afterwards agreed not to vote, recall the interlocutor submitted to review, advocate the cause, and in respect that the cattle and sheep, for delivery of which the original petition was presented to the sheriff of Haddington, were sold, of consent of parties, and the price consigned in the Branch of the Bank of Scotland at Had- dington, to abide the issue of the cause, prefer the advocator, Thomas Lang, on the said consigned fund, for the price which the said cattle and sheep brought at the said sale, and ordain the holders of said fund to make payment of the said consigned fund, with the ihterest that may have become due thereon, to the said Thomas Lang, upon an ordinary receipt, with a stamp corresponding to the sum subscribed by him, or by his agents^ in this cause, and grant warrant for payment thereof in his favour accordingly, and ordain the custodier of the deposit receipt granted for the said consigned fund, to deliver it up to the said Thomas Lang, or his said agents, for the above purpose ; reserving to the said Thomas Lang all claims for the difference between the prices paid by him, and the prices which the said cattle and sheep brought at the said sale; and for *difference of interest, and for damages; and to r»Kon-| the respondent and the creditors of Mr. Rennie, their defences L ■" J thereto as accords. But in the particular circumstances of this case, ordain the advocator, before receiving up the said deposit receipt, or uplifting the consigned fund, to find sufficient caution to repeat the same to the respondent in the event of this judgment being reversed on appeal to the House of Lords : Find the said Thomas Lang entitled to expenses both in this Court and in the Inferior Court," &c. 354 EOSS ON OOMMEKCIAIi LAW. III.— GIBSON V. FORBES. July 9, 1833.-8. 11 Shaw, 916. In 1821, Sir Charles Forbes, of New and Edinglassie, gave an order to Lyall and Cargill, wine merchants, Edinburgh, for a pipe of port wine, which was part of their stock. He directed them to bottle it off, and put it aside for him. This was done, the price of the wine paid, •and Lyall and Cargill acknowledged receipt of it on January 10, 1822. They subjoined an obligation in these terms: — "We acknowledge to have in keeping for, and belonging to you, fifty-six dozen of superior old port, and promise to deliver and forward the same to order as may suit your convenience." Lyall and Cargill placed the wine in two bins in their warehouse, marked Nos. 90 and 91, and afterwards, Nos. 133 and 134. In their bin-book, containing an account of the stock in the bins, the following entry was made : — «Bin No. 90. Soz. Bot. Doz. Bot. « 1822. February 14. By port, C. Forbes, 28 8 Julyl. To bin-book, No. 4, 28 8 "Bin No. 91. Doz. Bot. Soz. Bot. « 1822. February 14. By port, C.Forbes, 28 6 JulyL To bin-book, No. 4, 28 6 0" _^--^_ *The precise contents of these bins were 57|- dozen. The L -I excess above 56 dozen, as specified in Lyall and Cargill's letter, was said by Sir Charles Forbes to arise from a practice in the wine trade, to allow a surplus for breakage, &c., so that the whole wine in the two bins were sold to him. These entries were regularly transferred in the successive bin-books till 1826. In January, 1826, Lyall and Cargill addressed this letter to Sir Charles Forbes :— ^" We observe that your pipe of port which lays in our cellars is now of such an age that it could not be removed to the distance you proposed, without breaking the crust. The quantity is fifty-six dozen ; and, should it be agreeable to you, we would be happy to replace it with sixty-nine dozen of choice 1820's or 22' s, being 23 per cent, upon the quantity, on account of the four years in bottle. We take the liberty to submit this proposal, as the time we expected an order for the forwarding of your wine for the purpose you had then in view is so long past. The exchange may therefore be a convenience to you ; and we need not say that the old wine would be an acquisition to the merchant." Sir Charles did not return any answer to this letter for about two years, at which time he was accidentally reminded of the circumstance, and Lyall and Cargill received notice through the nephew of a Colonel Cunningham, that Sir Charles was ready to comply with their request. CONTRAOT OF SALE. 355 Lyall and Cargill then sold part of the old wine, and, in the months of May and June, they bottled off two pipes of port wine, and placed them in the bins marked Nos. 75, 76, 77, and 78. The bin-book, subsequent to 1826, was eventually lost, after the sequestration of Lyall and Cargill, by their trustee. But Sir Charles averred that the new wine had been as specifically appropriated to him as the old ; and, in particular, that bins 75, 76, and 78, contained precisely 72 dozens of wine, being the quantity set apart for him, together with the surplus allowed by the practice of the wine trade for breakage, &c. In taking stock annually, Lyall and Cargill separated the wine sold to Sir Charles Forbes, from the Company stock. In the last account of stock, taken on the 1st of July, 1^8, they first stated the aggregate amount of all the stock in their bins *at 629 dozen, ten bottles, racoon valued at £874, 5s. 9d., and then they deducted 70 dozen in L J bins 75, 76, and 78, valued at £101, 10s., leaving the Company's stock stated at 559 dozen, ten bottles, value £772, 15s. 9d. At the statutory examination of Mr. Cargill, which afterwards took place, he deponed that the wine thus deducted was the new wine of Sir Charles Forbes. On the 7th of August, 1828, Lyall and Cargill wrote to Sir Charles, then in London, in these terms : — " We now take the liberty of request- ing your instructions with regard to the sixty-nine dozen of port wine, which we bottled for you, agreeably to the directions we received through Colonel Cunningham's nephew, and in exchange for the fifty-six dozen of old port which lay in our cellars. Should it be your intention to have the sixty -nine dozen removed, we should be glad,, while the season is favourable, to forward it accordingly." No answer was returned, and on 26th August, Lyall and Cargill wrote : — "With reference to our letter of the 7th inst., we beg to advise that circumstances have occurred to make it incumbent upon us to for- ward your 69 dozen of port wine as above. We have instructed the Shipping Company's agent in London to keep the ten casks at their wharf, till he receives your orders as to the destination you may wish for them, which please to attend to." A bill of lading was prefixed to the letter, Lyall and Cargill having previously shipped the port for London. On its arrival there Sir Charles placed it in his cellars. On 11th September, 1828, the first deliverance was written on a petition for sequestration of the estates of Lyall and Cargill, and sequestration was awarded on the 20th. Mr. Archibald G-ibson, accountant, was appointed trustee, and he raised an action of reduction, on the Act 1696, c. 5, against Sir Charles Forbes, concluding to have the transaction set aside as an illegal preference granted in satis- faction of a prior debt, and within sixty days of bankruptcy. Pleaded by the Pursuer. — 1. The wine ordered in 1821 never became the real property of Sir Charles Forbes. Delivery was essential to trans- fer property to a purchaser. The entry 'of the wine in the r*5231 books of the sdlers, under the name of the purchaser, and the *- J placing of it in special bins, were merely spontaneous acts on the part of the 'seller, to which the buyer was no party. But there were no 856 BOSS ON COMMERCIAL LAW. termini habiles for delivery, real or symbolical, unless there were two parties to the act, one of whom represented the giver, and the other the receiver. Sir Charles had done nothing, by himself or by any repre- sentative, which amounted to a taking of delivery. There was no neces- sity of trade, nor any other circumstance in the case, to justify anything less than legal delivery, being held as a substitute for delivery. 2. The 69 dozens of wine bottled in 1828, were open to every objec- tion stated against the older wine. They were liable to this farther ob- servation, that they were not individualized as a specific subject in the same degree. Indeed, so little was this the case, that Lyall and Cargill still possessed sufficient control over the wine, and sufficient property in it, to have been able to sell it to any purchaser, and to make an effectual delivery to him ; and had the whole of the wine been lost in their cellar it would have been open to Sir Charles to plead that the loss was not his, but theirs. In these circumstances, had the wine remained in the hands of Lyall and Cargill at the date of the bankruptcy, the delivery of it could not have been demanded by Sir Charles Eorbes from the trustee. But the spontaneous act of Lyall and Cargill, in despatching the wine, being within sixty days of their bankruptcy, placed him in no better situation than if the bankruptcy had actually preceded its despatch. The bona fides of Sir Charles was not disputed ; but that did not affect the question, which resolved into a want of power on the part of the bankrupts to create a preference. Pleaded by the Defender. — 1. The pipe of wine in 1821, after being set apart in special bins for Sir Charles Forbes, and marked in the bin- book as his, and struck out of the Company's stock, was passed to him as his real property. From that time, Lyall and Cargill merely held the custody as his agents, or trustees, and no creditors of theirs could plead a higher right- It was consistent with the universal practice of the wine trade, that the seller should allow wine bought by a customer to P^rn ,-| lie *and ripen for some time in his warehouse. But, in the usage l- -I of that trade, the acts of separation from the seller's stock, and appropriation of it in the seller's books, to the purchaser, were held equivalent to real delivery; and this was necessary, in the state of the trade, and ought to be allowed by courts of law as good delivery. 2. The wine of 1828, was precisely the surrogate of that in 1821, and the rights of parties, in relation to it, stood on the same footing. If any power remained in Lyall and Cargill to have sold the wine to a third party, (which however was not admitted,) it could only have been on the footing of ostensible ownership, and not from their retaining any real right of property. But they would have been guilty of a gross fraud in attempting it. As little could their creditors attempt, what resolved into the same thing, as a second sale, by making the defender pay the price over again to them. Sir Charles could even have vindicated the wine from the trustee, if undelivered at the date of the bankruptcy. And, at all events, as his bona fides was not disputed, he was entitled to keep his own wine when he received it. On the principal of novum dehitum (which depended on the original nature, and not on the mere date of a transaction,) such delivery was not challengeable, though made OONIBAOX or SALE. 357 within the sixty days. But farther, in any view of this question, the Act 1696, c. 5, was inapplicable. It was not the case of a debtor grant* ing satisfaction to a creditor for a prior debt ; but of one delivering an individual corpus or subject in implement of a specific obligation. Pay- ment of a money debt was not reached by the Act ; and as little should payment (or proper solution) of any other obligation, if made in the pre- cise manner which was proper to the obligation, and agreed on from the first ; such as, by delivering an individual corpus or subject which the seller had onerously bound himself to deliver. Lord MoNOREiFP, Ordinary, " Assoilzied the defender, and found him entitled to expenses." In a Note his Lordship observed : — " On the one hand it is clear, that, on the part of the defender, there was the most *perfect bona fides r,KoK-i in the transaction brought under challenge. He had bought the L J original pipe of wine many years ago : He Lad paid the price at the time ; and the wine had been laid aside for him in particular bins, — had been marked as his property in the books of the merchants, — and had been excluded from their stock in the accounts made up from time to time. The merchants, for mutual convenience, proposed that this wine should be replaced by wine of later vintages. The defender, by a friend, ver- bally consented to this measure, and it was carried into eflfeot, the quan- tity of new wine to be given being sixty-nine dozen. This was done two years before the bankruptcy. The bin-book for the particular period has been lost in the hands of the trustee since the bankruptcy, as it is admitted to have been delivered over to him by the bankrupts. But as it appears that, in taking stock on the 1st July, 1828, the bankrupts ex- cluded seventy dozen, as in three specified bins — as Mr. Cargill, in his examination under the Statute, states, that that wine excluded was the property of Sir Charles Forbes, — and as it is farther expressly stated in the memorial for the trustee (engrossed in the Sederunt-book), that the wine was entered in the whole series of the bin-books, down to the se- questration, as belonging to Sir Charles Forbes — the Lord Ordinary thinks that it must be assumed that it was so entered in the bin-book which is missing. The bankrupts having at last shipped this wine for the defender, giving him notice simply that circumstances had occurred which rendered it incumbent on them to forward it, he received it into his private cellar in London. Certainly in this the defender was fully justified. On the other hand the wine remained in the cellars of the bankrupts till the 26th»August, 1828; and their estates were sequestrated on the 20th September. The actual shipment of the goods, therefore, was within sixty days of the notour bankruptcy. It is also clear that Lyall and Cargill, in forwarding the wine, did so in apprehension at least of an approaching bankruptcy, and in order to give the defender any benefit he could derive from the actual possession of it. The Lord Ordinary is humbly of opinion, that, as this was done openly and without concoal- mont, and was immediately made known to their creditors, and r»526'] as the defender's responsibility was undoubted, *the bankrupts •- J only did that which was honest in placing the defender in the position 358 • R08S ON OOMMEBOIAL LAW. in which he now stands. But the question still returns, Whether, under the strict law of the Act 1696, the goods can be reclaimed ? The case was argued to the Lord Ordinary on both sides, on the supposition that the actual shipment and receipt of the goods before the sequestration make no difference on the question, and that it would have been the same if Sir Charles Forbes were now demanding delivery from the trustee. The Lord Ordinary is not prepared to assent to this pro- position. He is not satisfied, that, in such circumstances as here occur, the purchaser may not have a legal and just advantage by the actual possession given him. It remains for the trustee for creditors to show that this delivery is liable to be reduced under the provisions of the Act 1696 ; and this may not be the same question which would arise if no delivery had been made, any more than it is the same question, where, in an ordinary sale for a price paid, the goods have been instantly de- livered, and where they have not been delivered at the date of the bank- ruptcy ; or the same question, where a security having been expressly stipulated at first, it has only jjeen completed within the sixty days, and where it has never been granted at all. The case on its merits involves two points ; — 1. Is the wine to be con- sidered as actually delivered, though lying in the cellars of the venders, by the payment of the price, the placing of the wine in three bins, and the entries of it in the books ? The pursuer makes a specialty from the fact, that there were seventy-two dozens in the three bins, the difference be- tween that and sixty-nine exceeding, as he states, the quantity generally allowed for breakage. The Lord Ordinary attaches no importance to this fact, it being clear that it was specific wine that was allotted, and that it was the wine in those bins, as distinguished from the rest of the stock. Laying this aside, the question is still very difficult, whether it is to be held that the wine so situated is to be considered as actually delivered. Mr. Bell has decided the point against the delivery, in the very case of a cask of wine, at least as between merchant and merchant, though he refers to no authority. There is, in the present case, a strong averment r*5271 "^ pi'S'Ctice in the trade, which *probably could be made out to a L J great extent. But this is not admitted, and would require trial, if relevant. Under any view of the practice, it could not be held that the property was so transferred, that a sale by Lyall and Cargill to a third party in bona fide would not have been good ; and though this might possibly be resolved into the principle of ostensible ownership, it would be difficult to say that the power of selling with effect did not in some measure depend on their original possession as proprietors. Al- though, therefore, the Lord Ordinary is not prepared to deny the point, if a clear and universally known practice of the trade were established, he has great difficulty in holding that the wine was actually delivered while it lay in the open bins of Lyall and Cargill. 2. But he is of opi- nion that the case does not properly depend on this point. He thinks that the real question is. Whether, the wine was so situated under the transactions of the parties, that the bankrupts were warranted in giving, and the defender had a right to receive complete delivery of it ? The OONTBAOT OF SALE. 359 Act of 1696 requires no proof of fraud. But it is not every delivery of goods, or grant of a right within the sixty days, which is within its reach. It relates to acts or deeds for satisfaction or security of prior debts. But acts in fulfilment of previous specific obligations are lawful. Delivery, where the party has no right to refuse it, that is, of a specific article or thing, previously agreed upon and paid for, is in quite a different situa- tion from the delivery of any goods in payment or satisfaction of a prior debt'not at all connected ^th them. In the one case, the insolvent simply does his duty to a party who never agreed to be his creditor on general responsibility ; in the other, he gives a preference of one general creditor over another. The Lord Ordinary humbly thinks that it would be against all equity to permit the creditors of a bankrupt to take advantage of that which, if done by the bankrupt, would be a great fraud. If Lyall and Cargill had sold the wine in question to a third party who was in bona fide, the sale might have been good, but it would have been a disgraceful fraud. But the very least of their responsibility was, that they held the wine as a special and segregate deposit in trust. They put it out of their stock ; they declared it in their books to be the property of Sir *Charles ^^.„^- Forbes. Could the creditors have taken it, if it had been still in L J the cellars, without being subject to this plain obligation of equity? Creditors, indeed, are not liable to all the obligations of a bankrupt, but they are liable to obligations of trust or deposit, where they are specific. Even money, when it is in any way ear-marked or traceable, as held by a title of agency or trust, has been awarded to the true owner. Here the separation is distinct, and the title of property appears from the books of the bankrupts. The Lord Ordinary is unable to think that they could, on any principle of justice, have refused implement, even though the wine had not been in the defender's actual possession before the bank- ruptcy. But he still cannot come to the opinion, that the possession received by the defender in bona fide before the bankruptcy, ought to go for no- thing. The Act, 1696, is a most valuable Statute, and must always re- ceive fall and fair effect ; but it ought not to be made the instrument of such injustice as to deprive a man of that which has truly been his pro- perty for years, purchased and paid for, merely because those to whom he has entrusted it have done a plain act of honesty in giving it up to him, when they have reason to fear trouble to him from their continuing to hold the custody of it. This is not satisfaction or security of a prior debt, but the discharge of a specific duty, fully exigible, and in the pre- cise way stipulated. It is the delivery of that which does not belong to the bankrupt, but to another. The Lord Ordinary thinks it unnecessary to advert to the case of Broughton v. Aitchison, all the bearings of that case having been so re- cently under the view of the whole Court." The pursuer having reclaimed, the Court ordered Cases, which were laid before the whole Court, together with the following questions : — 1. Under the circumstances stated in the Record, Is the wine in ques- tion to be held as delivered to Sir Charles Forbes, while in the cellars 360 BOSS ON OOMMEKOIAL LAW. of Lyall and Cargill, so as to have entitled him to claim it in a question with their creditors ? 2. Is the shipment to Sir Charles Forhes, within sixty days of the . hankruptcy of Lyall and Cargill, of the wine which was *in their L J cellars, in the circumstances stated in the record, a transaction reducible under the Act 1696, as in satisfaction or security of a prior debt? Lords Justice-Clerk, Glenlee, CEmatETiE, Meadowbank, and MoNCRiEFF, returned this opinion — " Query 1. Though we are sensible that this question is attended with difficulty, we are on the whole of opinion, that, under the circumstances stated in the record, the wine in question is to be held as delivered to Sir Charles Forbes, while in the cellars of Lyall and Cargill, so as to have entitled him to claim it in a question with their creditors. It is clear that the pipe of wine first ordered was laid aside in a par- ticular bin, and completely separated from the stock of Lyall and Car- gill. It was expressly marked in the bin-book as the property of Sir Charles Forbes : It was excluded from their stock in 'the account of stock which was made up soon after; and in all the subsequent stock accounts, it was either altogether excluded or expressly deducted : And the com- pany, in informing the defender that they had executed his order, ex- pressly acknowledged that they had the wine 'in keeping for and belong- ing to you.' We therefore think, that, if the question had related to that wine, it must have been held, that, the price being paid, and the duties thereon payable to the government consequently discharged, the wine had become the actual property of Sir Charles Forbes, nothwith- standing that it still remained in the cellars occupied by the merchants, under those definite circumstances, for the convenience and accommoda- tion of the owner. We are fiirther of opinion, that the effect of the subsequent arrange- ment, by which a different pipe of wiiie was substituted or exchanged for that first sold, was to place the second parcel precisely in the same situation, in point of law, in which the first previously was. The pro- posal made by Lyall and Cargill, in their letter of 28th January, 1826, in which they describe the old wine as 'your pipe of port, which lies in our cellars,' was ' to replace it' with wine of 1820 or 1822. They speak of the transaction expressly as an ' exchange,' and of the old wine as [*530] ' an acquisition to the merchant.' Then it appears, *that the defender having signified his assent to the proposal, the quantity of new wine stipulated was again laid aside in three separate bins; and, though the bin-book has been lost in the hands of the trustee, we think that it must be held, under the circumstances stated in the record, that this wine was again marked in the bin-book as the property of Sir Charles Forbes. We attach no importance to the specialty founded on by the pursuer in this matter, in regard to the precise quantity in one of the bins. In the stock account made subsequently, the precise wine and the precise quantity, described by the bins, was again deducted as being the property of the defender. In these circumstances, we are of opinion that no sound distinction can be made between the situation of the second OONTKAOT OF SALE. 361 parcel of wine, in point of law, and the situation of the first ; and, therefore, that the wine referred to in the question is to be held as hav- ing been delivered, in any question with the creditors of Lyall and Car- gill. Query 2. We are of opinion, that the shipment to Sir Charles Forbes, within sixty days of the bankruptcy of Lyall and Cargill, of the wine which was in their cellars, in the circumstances stated in the record, is not a transaction reducible under the Act, 1696, as in satisfaction or security of a prior debt. This question proceeds on the supposition, that the first question was to be answered in the negative. Supposing, therefore, that it should be held that the wine was not legally delivered while it lay in the cellars of the bankrupts, there can be no doubt, that, when it was laid aside in the manner set forth in the record, the price having been previously paid, the claim which Sir Charles Forbes had to actual delivery forth of the mer- chant's cellars, was not a general and undefined claim to delivery of a certain quantity of wine of a particular quality, but a specific and positive right attaching to that very wine which was so laid aside, marked and recognized as his property. That wine was the specific thing bargained to be delivered, for and on account of the price paid. In this point, also, we hold the question to be the same as it would have been if the pipe first laid aside had remained in the bin where it was deposited, till the date of the letter of Lyall and Cargill, intimating that *the wine r:|jcoi-| in question was shipped. For the old wine was only given up L J by the same transaction by which the new was deposited. And, there- fore, the value was paid unico contextu with the specific undertaking to keep the new wine as the defender's property, and to give it into actual possession at any moment when it might suit the defender to take it. And it is to be observed, that the duties on the wine remaining the same, there could be no claim available to the officers of the revenue, as against the wine that had been exchanged, nor any right to include that specific pipe, which had been sold and paid for^ as a part of the merchant's gene- ral stock. But we are of opinion, that this is not a case to which either the let- ter or the spirit of the Act, 1696, applies. It is not the case of any- thing given ' in satisfaction or security of a prior debt.' There never was any prior debt existing, distinct from the specific engagement to hold and deliver this subject, in consideration of the price paid in the mo- ment of contracting. We think that it is a clearer case against the operation of the statute, than the case of a contract for the loan of money, where it is pars contractus, that a specific security shall be granted, and that security is not granted or completed till within sixty days of the bankruptcy. For here the specific thing, as an unum quid, is not only defined in the contract, but is actually separated and laid aside from all the other property of the bankrupt that the party may take full implement when he pleases. We apprehend that the defender would have been entitled to demand and compel instant delivery, at the very time when the wine was shipped ; that no apprehension of bankruptcy would have justified Lyall and Cargill in refusing it; and that no other 362 ROSS ON OOMMEROIAL LAW. party could by any means have interfered to prevent it. And if the de- fender was entitled at that moment to compel delivery, we are of opinion that the delivery made to him cannot be challenged. Our opinion, on the whole is, that the shipment of the wine, in the . present instance, was not an alienation of the property of .the bankrupts, in satisfaction or security of a prior debt, but simply the completion of a specific contract, in which the immediate appropriation of this wine, and the obligation to transmit it to the purchaser, when required, formed _ji,_„n, the direct *counterpart to the price paid. And it farther appears L J to us, that it would be contrary to the spirit and against the equity of the statute, to hold that the creditors are entitled to undo the possession bona fide obtained by the defender, and call back the property as being legally a part of the stock of the bankrupts at the date of the sequestration." Lord Mackenzie returned this opinion — " Query 1. I think tBis question must be answered in the negative. The original wine was never delivered. The sale was distinct from de- livery, and constituted only a, jus ad rem. The order to bottle the pipe and put it aside for the buyer — the bottling and putting it in separate bins — the giving notice that the former had been done, and that the wine was ready to be sent to the buyer — the entering the wine the books of Lyall and Cargill in the name of Sir Charles Forbes and not as stock of the Company — all these I think do not amount to delivery. For still the wine and bottles remained entirely under the power of Lyall and Car- gill, lying in their cellar, just as they would, or might at least have done, if no sale had taken place, and they did not for one moment pass into the power of the buyer. He had no key of the cellar. He had never, nor any one for bim, seen the wine cask or bottles. Nay, he had not so far as appears, even received notice of the place of the cellar, or numbers of the bins, or entries in the books. In short, nothing was done that might not equally have been done though the price had not been paid, and the Company had determined not yet to deliver the wine. Suppose that, instead of paying the price. Sir Charles Forbes had written to Lyall and Cargill, that he had put the money into a purse, and placed the purse in one of the drawers of his own bureau for them, that would have been, I think, ^learly the counterpart of what was done in regard to the wine, though it will scarcely be said that it would have been delivery of the money. What passed in this case, in short, was just an agreement of sale of a particular pipe of wine, with an additional ageement that it should be taken care of, and should not be delivered immediately, but kept by the seller till called for. We must, I think, in this question, r*533n ^''^'''*'''' ^^^""^ *^^ payment of the price and *from the lapse of L J time. It is manifest, that if the bottling of the wine, and put- ting it into bins for Sir Charles Forbes, were not delivery at first, they could aot become delivery by his paying the price, or by mere lapse of time, while nothing more was done. I therefore think that there was no delivery of the original pipe of wine. There was not only no ordi- nary delivery from hand to hand, but there was no delivery of any kind, no change of possession, or power over the subject held by the seller, OONTRAOI OF SALE. 363 into possession or power over the subject held by the buyer, in any mode or form whatever. I must apply to that pipe the rule, tradition- thus non nudis pactis, transferunter rerum dominia, and hold that, being undelivered, it remained the property of Lyall and Cargill, and never became the property of Sir Charles Forbes. Of course I think that, in reference to it, or to the part of it remaining, Sir Charles had, and has, no title to claim it as against the trustee for the creditors of Lyall and Cargill, that company having become bankrupt. The ques- tion put is, I observe, Whether ' the wine in question is to be held as delivered to Sir Charles Forbes?' That seems to allude to the idea that, although not in fact delivered, there may be room in this case for holding the property to have passed without delivery. Now I see no sufficient grounds for this. Delivery is only dispensed with when it is impossible to make it, as when the subject is already in the hands of the acquirer. But in this case there was no impossibility, nay, no dif- ficulty, in giving and taking delivery. The trouble of doing this in the tnost ordinary and perfect way, if desired, by actually putting it into a cellar provided by Sir Charles Forbes, or his agent, would have been trifling ; and after delivery once made to Sir Charles, or his agent, the wine might have then, as. his, been deposited for.safe custody with Lyall and Cargill, as with any other merchants. This piece of conveyance was thought not worth while, I presume, no doubts of their solvency occurring. But it is too much to say that the law must bend to any difficulty of giving delivery in cases of this sort. Nor would it affect my opinion though it should appear to be the general practice of sellers and buyers of wine to act in the same manner. It would only prove that the risk from bankruptcy in that trade had not been felt to be great. As to any *special practice of holding wine to be trans- r«Kq4.n ferred in property without delivery, I never could regard it. L J It could only show that for some time a number, more or less consider- able, of merchants in one department of trade, and some of their cus- tomers, had formed a wrong opinion on a point of law which could never warrant us in allowing the ancient fundamental rule of conveyance of property to be broken up and changed into a mare magnum of special modern customs, in which every set of traders legislated for themselves. I think, therefore, that, even in respect to Ijie original pipe of wine, there was no delivery which passed the property of it into Sir Charles Forbes, or gave him right to claim it, as against the trustee for the creditors of Lyall and Cargill. And I must entertain the same opinion in respect to the sixty-nine dozen of wine which were surrogated in lieu of the original pipe. It is argued that the claim of Sir Charles to these sixty-nine dozen is worse than his claim would have been to the original pipe. I do not think that argument satisfactory, though there is something more of difficulty in showing that this quantity of sixty-nine dozens was individualized, and set aside as the wine of Sir Charles Forbes, than there was in rela- tion to the pipe. On the whole, however, I think the one just came into the same situation as the other. But certainly I do not think his 364 ROSS ON COMMEROIAI. LAW. right lo this last any better, and therefore I repeat, as to it, the opinion I expressed regarding the other. Query 2. I think the second question must be answered in the afiSr- mative. The wine being still the undelivered property of Lyall and Cargill, the right of Sir Charles Forbes under the sale was ajw.? ad rem. He was a creditor — a creditor for delivery of a particular movable sub- ject, not immediately for a sum of money; but still a creditor. In this situation Lyall and Cargill became bankrupt, or, what is the same thing the sixtieth day prior to their notour bankruptcy was past. After that, I think they had no power to deliver the wine in discharge of this debt due by them to Sir Charles, but were barred by the Statute 1696, and other Statutes, confirming the provision of that Act, and applying them to cases of sequestration of bankrupts. I see no difference in this question between deeds done at or after P^c„K-> bankruptcy, and deeds done within sixty days before *notour L J ba/nkruptcy. The provision of the Statute declares, ' all and whatsoever voluntary dispositions, assignations, or other deeds which shall be found to be made and granted directly or indirectly, by the foresaid dyvour or bankrupt, either at or after his becoming bankrupt, or in the space of sixty, days of before in favours of his creditors, either for his satisfaction or further security, in preference to other creditors, to be void and null.' Deeds therefore which are under this Statute voidable, if done at or after notour bankruptcy, are equally so if done within sixty days of it. And the question is. Whether there exists an exception to the provision of this Statute, by which a debtor, having the property of a movable subject, but bound by obligation to deliver it, and so pass the property to another person who has' bought it, can, under this Statute, at or after bankruptcy, or within sixty days before bank- ruptcy, implement this obligation in favour of the creditor ? Now, I am not satisfied that there exists any such exception. I think it would be contrary both to the words and spirit of the Statute 1696, to allow a debtor, after notour bankruptcy, or within the sixty days, which is the same thing, to give or withhold a preference to or from any credi- tor at his pleasure, by grainting, or declining to grant, implement of an obligation. And I do not think that there is authority sufficient to compel me to do this violence to the Statute. I. see that there has been in practice an exception from !the provisions of this Statute, admitted in favour of nova deldta, i. e., debts which were newly contracted when the disposition by the bankrupt was granted j and I am aware that this exception has been stretched widely by deciaions that I should not now think of overturning. But I do not think that there is anything at all like a uniform train of decisions carrying the exception so ftir as to hold that every obligation is to be viewed as novum debitum during an unli- mited extent of time, in reference to implement of it by the voluntary disposition of the debtor after notour bankruptcy, or within the sixty days. To say that a debt is to remain new for any length of time is surely a contradiction in terms. On this point I beg leave to refer to the opinion of Lord Corehouse in the case of Mansfield v. Walker's Trustees. I wish only to add one observation peculiar to the present OONTBAOI OF SALE. 365 case, viz., that in *this case I consider the interval between sale r^coe-i and delivery to have been not only very long, but to have been L J intentionally, and by both the original and renewed agreement, made so by the parties. I consider the agreement to have been, an agreement to buy new wine, but not to take delivery till it should be fit for drinking, and wanted by the buyer. In such a case I consider all those argu- ments which have in other cases been urged as to the delivery or dispo- sition given by the debtor being in truth intended and considered by the parties, as well as in the loose notions of ordinary business, as immedi- ate delivery or disposition — I say, I consider all such arguments as out of the question. If we admit implement of an obligation in this case after bankruptcy, or within the sixty days, we must lay it down that in all oases parties have only to constitute a jus crediti to any subject or right, and agree to delay delivery or disposition in implement of this jus crediti, in order to enable any debtor, after any number of years whatever shall have passed, to grant to the creditor, if he pleases, a pre- ferable conveyance of that subject or right after he has become a notour bankrupt. Nay, I do not see how the principle can stop short even of the case of an obligation ot jus crediti by a debtor binding him to make a disposition omnium lonorum to a particular creditor in security of all his claims. We should, I think, be obliged, in consistency,, to hold that implement of such an obligation after bankruptcy was competent. I cannot, therefore, carry the principle of novum debitum so far as to sustain a voluntary act of delivery or disposition by the debtor after bankruptcy, or within the sixty days. And I see no other principle of exception recognized in our practice, which can be alleged to be appli- cable to this case. It is argued, indeed, that delivery or disposition in precise implement of an obligation is not a voluntary act in terms of the Statute, because the debtor is expressly bound and necessitated to do that very act. That appears to me to be a plea distinct from the plea of novum debitum, and one of which I do not see any recognition in our authorities or decisions at all, except in some expressions reported to have been used in the late case of Bontine. And, with all possible re- spect for those Judges that are reported to have used the expressions, I cannot adopt it. I think it fallacious. *A debtor after bank- [-,=071 ruptcy, (or within the sixty days, which is viewed as the same L J thing in law,) is not truly bound to implement any one obligation by granting conveyances in property or security to any one creditor, because he cannot do so without prejudice to the rest of his creditors. Neither is he necessitated, so as to take away his voluntary agency. He may be liable to horning and caption for declining to convey in implement of a jus crediti, any subject or right in property or security. But it may happen that such diligence may be used at the instance of more than one claimant holding a jus crediti to such subject. This may happen, even if the subject be an individual thing, and still more, if it be a quantity of anything. How then can a disposition to one of these, in exclusion of the other, be viewed as necessary ? And such diligence may, at any rate, be met by horning and caption used by each of his ordinary creditors for payment of their debts, which the conveying away February, 185i — iil 366 EOSS ON COMMEROIAL LAW. of any valuable subject puts out of his power. It is plain that the bankrupt debtor cannot escape imprisonment by granting implement to one creditor, to the prejudice of the rest, more than by refusing it, so that it is impossible to consider the risk of imprisonment as constituting a necessity that deprives his act, giving a preference to one creditor, of the character of being voluntary. I conceive the word ' voluntary' in this Act to designate acts of conveyance by the will of the debtor, gene- rally, in contrast to acts of legal conveyance by the mere will of the law, in regard to which, creditors were to be left on a fair level by the non-interference of the bankrupt. I therefore see no possibility of ad- mitting this view, which, I have already said, is not the view of the exception from the Act 1696, that seems to me to have been recognized to whatever extent in our practice." Lords Medwtn and Cokbhouse stated that they " entirely concurred" in the opinion of Lord Mackenzie. Lord FuLLERTON returned this opinion : — "Query 1. For the reasons assigned by Lord Mackenzie, I am of opinion that the wine in question cannot 'be held as delivered to Sir (-^-qn-j Charles Forbes while in the cellars of Lyall #and Cargill, so as <- -I to have entitled him to claim it in a question with their cre- ditors.' . 2. The second point is more difBcult, and the opinion I have formed on it requires some explanation : — I think that the fifty-six dozen of port wine originally purchased by the defender, and entered in the bin-books of Lyall and Cargill as belonging to him, was, though not delivered, so set apart from the general stock of the sellers, as to form a specific sub- ject, of which he was entitled to demand delivery; and upon considering the circumstances appearing in the record, I rather think that the sixty- nine dozen of port substituted for the former, must be held to have stood in the same situation. The defender having paid the price, the obliga- tion to deliver was quite pure. The defender, in receiving delivery, stands confessedly clear of all suspicion of collusion with the bankrupts, and was not even cognizant of their embarrassments ; and the question is. Whether the delivery of the wine in such circumstances is to be held as a 'transaction reducible under the Act 1696, as in satisfaction or secu- rity of a prior debt ?' I think that this question must be answered in the negative. It is true that as the wine was not delivered, and as Messrs. Lyall and Car- gill were merely under a personal obligation to deliver it, this obligation may be correctly termed a debt; and in the present case it was a debt of some standing. But then, according to the same phraseology, the delivery must be considered as the payment of that debt — the extinction of the obligation by the appropriate performance ; the ' naturalis pres- tatio ejus quod debetur.' In relation to the present question, it is also material to observe, that the tender of such performance or payment, is one which it is not only incumbent on the debtor to make, but on the creditor to receive ; and which, consequently, bars all farther procedure at the instance of the latter against the former. Now, it appears to me that a delivery of movables of this kind, not OONTBACT OF SALE. 367 made as an equivalent or substitute for the payment of a different debt, but forming in itself the specific performance of an existing obligation so to deliver, does not fall within either the letter or the spirit of the Act 1696. The Statute is directed against assignations, deeds, &c., by r:|:eqQ-i *the bankrupt, 'in favour of any of his creditors, either for L J their satisfaction or further security, in preference of other creditors.' There is nothing said of payment, and looking at the preamble and declared object of the Statute, I think that the term 'satisfaction' was used in that sense in which it is in legal language commonly, and even technically, distinguished from payment : ' Satisfactum autem accipimus quemadmodum voluit creditor licet non sit solutum,' &o.. Digest, 13, 7, 1. 9. 'Praeter solutionem in specie, plures alii sunt modi, quibus vel ipso jure, vel saltern ope exoeptionis obligatio toUitur, et liberatio con- tingit, puta saiisfacfio, compensatio,' &c. — Voet, Lib. 46, tit. 3, s. 17. According to Pothier, in commenting upon the first of these passages, — ' Observez une difference entre le paiement et la satisfaction. Lo debi- teur a le droit contraindre le creancier a reoevoir le paiement de la somme pour laquelle la chose lui a ete donnfe en natissement,' &c. ' Au oontraire, on ne peut satisfaire au creancier qui n'est pas payd, qu'autant qu'il y consent.' — Pothier, torn. 2, p. 960. But what is of more import- ance, the same distinction is made by Lord Stair, in writing only a few years before the passing of the Statute : — 'The more proper way of dis- solving obligations is by performance, by which they attain their effect, and that is either by payment or consignation ; the more improper ways are acceptilation, compensation,' &c. And when he comes to treat of acceptilation, he proceeds, — ' Acceptilation with us may be of any obli- gation, and requireth no stipulation; but as the acknowledgment of pay- ment liberates all the debtors, so the acknowledgment of any satisfaction which imputeth payment, or anything accepted as equivalent, hath the same effect ; and, therefore, we use more the term of satisfaction than acceptilation.' In another passage, when treating of the Act 1621, he distinguishes in the same way, — 'Where a debtor of an entire estate pays his lawful creditor, or satisfies him by dispositions or assignations.' According to the sound construction, then, of the letter of the Statute, it appears to have been directed, not against payment in the proper sense of the term, that is, the actual performance which the creditor was bound to accept of, in extinction of the debt as originally constituted, but against satisfaction, i. e., those substitutes for such actual performance, which *could only be the result of a new and voluntary arrange- r^rAcri ment between the debtor and the creditor. The same conclusion L J is deducible from a consideration of the spirit of the Statute; for although it might be reasonable and expedient to invalidate, on the ground of con- structive fraud, any new transaction entered into, a short time before bankruptcy, with the consent of the creditor, for the satisfaction of a debt which the debtor could not pay, there could be no ground for sub- jecting to the same penalty that payment or delivery which the debtor was bound to make, and the creditor to accept, by the force of the ori- ginal obligation. 368 EOSS ON OOMMEHOIAL LAW. Accordingly, on the one hand, I am aware of no case in which deli- very of movables in such circumstances has been held to fall under the Act 1696. In those generally referred to, viz , Forbes v. Debtors of Forbes, 27th January, 1715 ; Morison, 1124; and Smith v. Taylor, July 18, 1728, Morison, 1128 ; and Crawford v. Stirling, Elchies' Bankrupt, No. 28, the goods were delivered, not in performance of any previously existing obligation to deliver, but truly in satisfaction of a prior money debt. On the other hand, in the most comprehensive class of debts, and certainly that most unequivocally expressed in the Statute, viz., money debts, payments in cash are sustained, and I confess I do not see any reasonable ground upon which they can be so sustained, except that payment, in the proper sense of the term, is not struck at by the statute. The reason assigned by Lord Elchies in the case of Forbes v. Brebner, January 26, 1751, Elchies' Notes, p. 50, ' there are no words in the Act 1696 that can apply to payments of money which is not in the sense of law a deed,' is clearly unsatisfactory. In the first place, the term deed might just be as aptly applied to the delivery of money as the delivery of goods. But, secondly, this ratio is completely excluded by the late decision of Speirs v. Dunlop, 30th May, 1827, in which, on a remit from the House of Lords, it was decided that a payment in cash by a bankrupt, is reducible under the Act 1696, when the transference of the money is made not properly in payment, i. e., extinction of a money debt, actually due, but in security of a debt, which might eventually be due, by the party who paid, to the party who received. r#UTl *'rbe only intelligible reason for generally sustaining pay- L J ments in cash, is that assigned by Lord Bankton: — 'The Act is here likewise understood of the delivery of goods, but not of payment in ready money, that being a natural extinction of the debt.' The same explanation on the subj ect of money payments is given by Mr. Bell. ' The chief ground for the omission of payments, in the enumeration of acts challengeable on constructive bankruptcy, most probably was, that pay- ment being the ordinary way of discharging obligations, and which does not naturally suggest the idea of embarrassment or insolvency, it was right to hold it as effectual, unless proved to be fraudulent, or subsequent to notice of the bankrupt's situation.' It is clear that both authors are considering the case of money debts. But the reasoning is equally ap- plicable to a case like the present. For when a party is debtor in an obligation, not to pay money but to deliver moveables, the delivery of the moveables is just as natural and necessary an extinction of the debt in the one case, as the payment of the money is in the other. I have only farther to observe, that the consequences of the Statute ■ when construed, as applicable to cases like that under consideration, must have been most afiomalous and absurd, particularly as the law then stood in regard to the competition of diligence. There was at that time no equalization of diligence dii'ected against moveable property in the event of bankruptcy. Accordingly, in the case of Smith v. Taylor, already alluded to, — ' Butter having, within sixty days of bankruptcy, delivered to Taylor lint, deals, &o., to the-value of £70, and paid in cash £30, as the balance of £100 for which Taylor was creditor to him by bill, Smith, OONTKAOT OF SALE. S69 a creditor of Butter, arrested ia Taylor's hands, and then raised a reduc- tion on the Act 1696.' Taylor pleaded, ' first, That the Act applies only to written deeds ; and, second. That at all events he must be entitled to come in pari passu, as equality is the spirit of bankrupt law.' The Court found, < That the delivery of the goods fell under the Act 1696, and that the defender was liable to restore them or their value ; and found that the defender came not in pari passu.' Now, this might be reason- able enough, considering that Taylor was not bound to receive the lint, deals, &o., in *satisfaction, unless he chose, and might, until pay- i-inc 49-1 ment, have taken all necessary measures, by action, diligence, or L -I otherwise, for obtaining payment, or legally attaching the subjects in dispute. But if Taylor, instead of being the creditor of Butter in a money debt, had been the purchaser of the lint, deals," &c., and conse- quently his creditor for th6 delivery of those very articles, it is clear that he would have been bound to receive the delivery of them, and that even the tender of such delivery must have precluded all acrion or diligence at his instance. On the supposition, then, of the Act 1696, applying to such a transaction, it rather appears to me that the extraordinary conse- quence would have followed, that every creditor of the bankrupt might, by arrestment or poinding and reduction, have had the means of vesting himself with the right to the moveables in dispute, except the particular creditor to whom the bankrupt was bound both in law and equity to de- liver them. Upon ttese grounds, I think that the Statute does not apply to a case of this kind, in which the delivery of the goods was not made in satisfac- tion of a prior and separate debt, but was the appropriate payment or extinction of the only debt subsisting between the .debtor and the creditor, and necessarily took effect, independently of any new consent or arrange- ment between the parties. Considering the novelty of the question, its great practical importance, and the authority justly due to those by whom a contrary opinion is entertained, I regret that it should not be made the subject of farther investigation and argument} but, as presently informed, my opinion on this point is, that < the shipment in question is not a trans- action reducible under the Act 1696." Lords President, Balgray, and Gillies, (without giving detailed opinions,) concurred in holding that the defender was entitled to be as- soilzied. Lord Ceaigie. — After all I have heard and read in this cause, I enter- tain a different opinion from the majority of the Court. There are two distinct questions. First, As to the effect of forwarding the wine from the cellars of the bankrupts to the defender in' the existing circumstances; and, secondly, *As to the state of the rights of the parties, if the r^c^q-i wine had not been so forwarded. "- -■ As to the first 6f these questions, the decision in the recent case of the Creditors of Dunearn, combined with those immediately^preceding, ap- pears to establish beyond all doubt the general principle so often laid down by Lord Justice Clerk Braxfield, that after bankruptcy, the law only, and not any act performed by the common debtor, must govern the rights and preferences of the creditors. And it is of no impovtance whe- 370 ROSS ON COMMERCIAL LAW. ther the bankruptcy is that defined by the Statutes, or public insolvency, or insolvency known to those who are participant in the transaction out of which the challenge arises. In the present case, and in reference to the point now at issue, it is to be remembered that in August, 1828, (nearly six years after the original agreement of sale, and more than two years after a proposal of giving new wine in lieu of that which was originally intended) it was suggested, in a letter by the bankrupts, that the wine to be exchanged might be removed for reasons of convenienoy to the defender, but to this sugges- tion no answer appears. On the 26th of August, however, (about a fort- night after,) a second letter was written, informing, that " circumstances 'occurred to make it incumbent on us (the bankrupts) to forward the wine," along with a bill of lading, in favour of the defender, and with instructions to the agents of the Shipping C(ftapany of London to keep the wine until the received orders from the defender; but even to this letter no answer appears to have been made ; at least none has been pro- duced, although his particular attention to it was requested. Neither the date of the wine's arrival at London, nor of the defender's instruc- tions, nor of the delivery of the wine, has been mentioned, nor any receipt produced ; and no direct or express approbation of the course fol- lowed by the bankrupts is to be discovered prior to the date of the seques- tration on the 20th of September. Comparing these circumstances with those occurring in the case of the Creditors of Dunearn, there is a wide difference, and on the whole, most unfavourable to the defender's plea. In the former, the act complained of could hardly be called voluntary, having been demanded by the agents j-^f. . ,, of creditors *alledging, that either by fraud, or by the culpable L J negligence of the debtor, they had been induced to advance large sums, upon a security altogether inadequate and diff'erent from that which had been stipulated ; yet there the challenge was sustained. In the pre- sent case the act was not merely voluntary but ultroneous. It was not only unauthorized, but contrary to the terms of the agreement by which the sellers of the wine undertook to keep it until called for. If it had been lost or injured in the voyage to London, or afterwards, and indeed until the measure was approved by the defender, he might have thrown the loss upon them. And although it is said that the measure might have otherwise become necessary, no attempt is made to specify anything probable or possible in justification. In such circumstances, the proceedings can be considered in no other light than an act of bankruptcy, and a fraud against the creditors in general, who had an absolute and indefeasible right to an equal distribu- tion of the bankrupt's eff'ects, as they stood at the date of the sequestra- tion, or within sixty days prior to the sequestration. The question which was put to the consulting judges on the point above stated, appears to be confined to the operation of the Act, 1696, and a good deal of reasoning has been directed to that view of the case, but, as it appears to me, erroneously. The' consulting judges, however, at least are not prevented from taking a different, and what may appear to them a more correct view. If the summons had been framed in refer- OONTBAOT OF SALE. 371 ence only to the Act, 1696, as well observed in the case of the Creditors of Dunearn, the proper course would have been to supply the defect by a supplementary summons j but here, after the words referring to the enactment, the summons proceeds to state, "that the said preference was contrived and intended to give the defender security for the payment of a prior debt, alleged to be due to him by the said bankrupts, and thereby to confer on the defender a particular preference, and to defraud and dis- appoint the other just and lawful creditors of the said Lyall and Car- gill." But, indeed, holding the summons to be confined to the statute, 1696, I should be of opinion, upon the grounds so fully *stated and rue jet explained by Lord Mackenzie, that the forwarding of the w,ine L J was struck at by the statute, as well as unauthorised by, and contrary to, the common law of Scotland. Some decisions have been referred to, as importing a gradual relaxation of the enactment in 1696. Where there is to be a loan or real security, and after a bond, containing a war- rant for infeftment, is delivered to the agent for the lender, and enfeft- ment, follows without any undue delay, it has not been held a good objec- tion that the money or part of it had not been advanced before enfeft- ment j and between a banker and his customer, payments and advances within sixty days of statutory bankruptcy, in the ordinary course of deal- ing, are considered not liable to challenge. Whether the practice is war- ranted by law, or in itself expedient, may admit of considerable doubt; but those cases are quite different from the present. If the defender should be obliged to return >the wine, it must be imputed to his long de- lay in requiring delivery, for which no reason has been given ; and if he were ultimately permitted to retain the wine, he will owe it, not to his following out his right in the regular way, but to the act of his bank- rupt wine-merchants, by whom, as it would appear, he was compelled to receive delivery, in opposition to express agreement, and clearly, and almost avowedly, to create a preference ; there could be no other end in view. On the second question, which is now to be considered, viz., as to the state of the parties, if the wine had not been removed, but allowed to remain in the bankrupt's cellars, and so to fall under the immediate management and disposal of the statutory trustee, I cannot, with defer- ence, entertain any doubt. That in this view of the case, the full and absolute property of the wine had been transferred to the defender, is no longer asserted. Such a notion appears, indeed, to be altogether ground- less. Until delivery of the wine, in some of the forms known at law, there could be no complete sale, but an agreement to sell in futuro, as in the case of a sale by sample, or where, without putting the wine with- in the power of the purchaser, it has, however, been described by parti- cular marks or differences. In all such cases purchasers may reject the article, if not equal to the sample, or as not agreeable to the specifica- tions. The seller, again, may sell and deliver the article to another per- son, *or it may be attached by a poinding creditor, or it may r*c4^g-i fall under a sequestration, which as to moveable effects, is truly L J a poinding for the whole creditors of the bankrupt. Anjd in every sur- 372 ROSS ON COMMERCIAL LAW. vey by the officers of the crown for ascertaining the duties, the wine binned (as it is termed) is held as still belonging to the merchant, and the duties paid accordingly. How, then can it be maintained that a purcha- ser, in such circumstances, before actual delivery, could have anything more than a personal claim ? As to the'payment or non-payment of the price it could make no difference. If the property has not been duly transferred by the delivery, a second sale must be effectual, if followed by delivery, whether the price has been paid or not. In such a case as the present, in the event of the seller's bankruptcy, there is no room for a preferable claim on the part of the purchaser. It has been uniformly held, and so decided in the ease of the Creditors of Dunearn, that in a competition of creditors there is no room for equities of any Sort. There a debtor had undertaken to give security over lands much more than adequate ; but of this the creditors had been deprived, and, as it was alleged, by the fraud or culpable negligence of the bor- rower ; and strongly influenced by the hardship of the case, as well as by the parties interested in the security, the debtor, after sequestration, (endeavoured to supply the defect by a new and regular infeftment. But this has not been sustained, although, if there had been such a claim in equity as could be regarded by the Court, it was just as competent after sequestration as before it. In such a case, there is no room for the doe- trine of constructive or latent trusts. A right of property, whether in lands or in moveables, cannot, in a question with third parties, be cre- ated in the form of a trust, unless, to a certain extent at least, a com- plete right of ownership is given. To infer or imply a trust in every ordinary contract of sale, would be at once to supersede the form of de- livery hitherto held indispensable. Even where the price has been paid, although the purchaser has thus performed his part of the contract, it still remains for the seller to perform his part, which can only be done by delivery, in one or other of the forms by law established ; nor would r*'i471 ^^^ principle, if adopted at all, be *confined to the case of sales. L -I In all competitions regarding the use or right of possession of movable effects, it would subvert the universally acknowledged rule of law, that it is possession alone, if lawful, which is in practice, and oughtj in point of expediency, to be conclusive." The Court adhered both on the merits and as to expenses. IV.— BOAK V. MEGGET. Feb. 13, 1844.— S. 6 Dunlop, 662. In January, 1840, David Anderson, of the firm of John Anderson and Son, tanners at Leslie, applied to Messrs. Boak and Greig, curriers in Kirkcaldy, to purchase forty Monte Video, and fourteen native hides, which were then in process of tanning. Greig, a partner of the latter firm, went accordingly to Leslie to examine the hides. The hides were lying by themselves in two separate lapping-pits in Anderson's tan-work, tvvenfry-four ofnhe foreign hides being in one pit, and sixteen foreign CONTEACT or SALE. 373 and the fourteen native hides in the other pit — the native being at the bottom. There were no other foreign hides at the tan-work, except the forty mentioned, and each of them had a burnt mark upon it. The foreign hides were entered in an invoice which was then in Anderson's possession, and which was shown to Greig; and both the foreign and native were entered in his lapping-book, which contained an inventory of them, as lying in these two pits. It did not appear, however, whe- ther the lapping-book had been shown to Greig or not. Greig took out and examined a few of the hides on the top of each of the pits, and then concluded a bargain with Anderson for them — the foreign at IQd. and the native at a lie?, per lb., according as they should weigh when the process of tanning was completed. Greig did not see or examine any of the native hides, as they were at the bottom of the pit. No mark was put by Greig on any of the hides. It was a part of the agreement that Anderson was to complete the tanning, and those hides which had been taken out were put into the pit *again, to r^RAa-i undergo the requisite process, along with the others. On the L J same day, and immediately on the purchase being made, Boak and Greig granted to Anderson and Son their bill at four months for £75, being payment of a great part of the price, it being understood that whatever balance there should be, was to be settled when the weight of the hides was ascertained after they were tanned and dried. This bill bore to be " for value in crop hides," and was entered in Anderson and Son's bill-book, but no entry of the transaction was made in the other books. At the same time a note of sale was granted by Anderson and Son in these terms : — " Leslie, SOlh January, 184G. "Gentlemen, — We have just received your note for £75, over fifty-four crop hides, forty Monte Video, and fourteen native, at lid. per lb., and the forty foreign at lOi^. per lb. — We are &o. (Signed) "J. Anderson & Son." " To be delivered so soon as they are well tanned. (Signed) "J. A. &S." The bill was discounted by Anderson and Son, and duly retired by Boak and Greig when due. After the sale, Greig called at the tan-pit several times, and examined the hides, and gave directions to Anderson's foreman with regard to them, saying that they were his, and desiring the tanning to be hurried forward as fast as possible. On one occasion he cut a piece out of a few of them, and said that he did not consider them tanned yet, and that they were not ready to go away. In the month of March, while the hides were still in the process of tanning, Anderson and Company became insolvent. It having become a question between Anderson and Company's creditors, and Boak and Greig, whether the latter had acquired a preferable right to the hides in question by the above transaction, or whether they were avail- able to the general body of the creditors, it was agreed by Boak and Greig, in order to facilitate a settlement of the bankrupts' affairs by composition, that they should ^.coept of a composition along with the 374 ROSS ON COMMERCIAL LAW. r«f;iQT o*^^'" creditors, *leaving the question of riglit open, to be after- L J wards settled. It was also agreed that the question should be decided upon the same footing as if sequestration had been awarded ; and the question accordingly came to be, whether, under a sequestration, the hides would have belonged to the creditors, or to Boak and Greig. This agreement was concluded on 11th June, 1840. "Anderson and Son accordingly settled with their creditors by composi- tion, and Messrs. Megget and Symington, leather factors in Edinburgh, became security for its payment ; they obtaining, as a condition of inter- posing their security, an assignation to the whole stock and effects of the bankrupts. Previous to this, in the month of March, they had taken an inventory of the Stock of Anderson and Son, and at this time the contents of the two pits in question had been pointed out to them by Anderson, as the property of Boak and Greig. The process of tanning the hides was not completed till the month of December, 1840, many months after the insolvency ; the hides, at the time they were examined by Greig, having been only five weeks in the pit. After this period, when the hides had been tanned and dried, Boak and Grieg presented a petition to the Sheriff of Fife, directed against Ander- son and Son, to have it found that they had a preferable right to them, and to have them delivered over. No answers were lodged for Anderson and Son, and judgment went against them by default; but appearance was made in the process for Megget and Symington. A proof was taken, in which the facts above detailed were established, and an attempt was made on the part of Boak and Greig to prove that sales of the same nature as the above were common in the practice of the trade, and counter evidence led fo\the other party to prove that this was notlhe case. The Sheriff-Substitute decided in favour of the petitioners, but this interlocutor was reversed by the Sheriff, who found that the contract for the sale of the hides had not been followed by delivery, either actual or constructive, and that Megget and Symington were in right thereof. ■r*'i501 ^oo.J'^ S'ld Greig advocated the case. — Megget and Symington L J *also presented a counter note against the judgment of the Sheriff-Substitute. t- Boale and Greig pleaded, in minutes of debate, — That there had been a concluded and binding sale by Anderson and Co. to them, which was proved by the written contract, and the bill granted in implement of it. Transactions of the same description as the present, by which hides were sold while they were in the process of tanning, and before they were finished, were not unusual in the trade. The contract of sale was also followed by complete constructive delivery, such as was sufficient in the circumstances, and fulfilled all the legal requisites of that mode of delivery. .In particular, the subject of purchase was both in existence "at the time the sale was entered into, and it was also specific, being separated and distinguished from the rest of the seller's stock. From after the date of the purchase also, the purchasers continued to deal with it as their own property. Neither was there any ground on which the respondents could plead reputed ownership, or maintain that they OONTBAOT OP 8ALB. 875 had transacted with the sellers on the credit of the articles which were sold, both because the purchaser had obtained all the delivery of which the articles were susceptible while they were undergoing the necessary processes, and also because the respondents had been warned that this was the case by the seller. There was also another important requisite of constructive delivery in the case, viz., that payment had been actually made, with the exception of a small contingent balance, which could not be- then ascertained. There was here superinduced upon the contract of sale, the contract of locatio operarum ; and although the original seller, retained the custody of the goods sold, he did so only in his capacity of workman or manufacturer,, the right of property being in law with the purchaser, and his custody having no other effect than it would have had if the articles in his hands had been originally the' property of the purchaser. The case of Gibson v. Forbes was decided in very similar circumstances with the present, and was a conclusive authority in favour of the advocators. Megget and Symington pleaded, — That it was not mere *con- p^-,..- venience or facility to the dealings of traders, but only a neces- >- J sity of an absolute kind, which in strict principle could authorize con- structive delivery ; and in the present case there was not only no such necessity, but the transaction in question was directly contrary to the usual course of business, and was entered into, and bill granted for the price, for the accommodation of Anderson, who was in embarrassed cir- cumstances, and upon the mere faith of the transaction being ultimately carried through. Besides this, all was not done by the advocators which might in the circumstances have been done to complete the constructive delivery. The hides might have been marked by them, in some manner, so as to denote the alleged transfer of property, as is frequently done in the case of growing trees, which require to be cut down before they can be removed. Neither was the full price for the hides paid, nor was it even ascertained what that price was to be. The missive or note also, granted by Anderson and Son, bore that the hides "were to be delivered so soon as well tanned," thus affording evidence that no delivery had taken place at the time of the sale. The present case was in many points distinguished from that of Gibson v. Forbes. It was clear that the supposition of delivery having taken place in the present case was excluded by authority. The Lord Ordinary pronounced as follows : — " Finds that on the 30th January, 1840, David Greig, one of the said complainers, purchased, on account of the complainers, from the firm of John Anderson and Son, tanners, Leslie, of which firm John Anderson was the sole partner, forty Monte Video hides and fourteen native hides, the former at the price of 10c?. per lb. and the latter at the price of Wd. per lb., the weight to be ascer- tained, and the hides delivered as soon as they were well tanned, as appears from the sale note. No. 7 of process, delivered to the' complainers : Finds, that the price thus agreed to be paid by the contract made by the parties was the price of the hides in their finished state, after the process of tanning, which was then in progress, should be completed, at which time the finished goods, for which the said price was to be paid, were to 376 ROSS ON COMMERCIAL LAW. f^f'f^n-, be actually delivered, the same not being till then in a *deliver- L -I able state : Finds, that on the said 30th day of January, the com- plainers granted their bills 'to John Anderson and Son for £75, payable at four months, on account of the price of the hides so purchased, the bill bearing to be for value in crop hides, and that the remainder of the price was to be paid when the hides were completely tanned and weighed and the full amount of price thereby fixed, and which balance of price remained unascertained and unpaid at the date of John Anderson and Son, stopping payment, as aiter mentioned ; and finds that the said bill was discounted by John Anderson and Son, and was duly retired by the complainers when it fell due : Finds it proved, that at the date of the said purchase, the foresaid hides were undergoing the process of tanning in the pits in which they had been laid for that purpose ; that they had only been about five weeks in the said pits : that they required to remain there. nine or ten months more in order to complete the said process; and that in point of fact, it was not completed till the month of Decem- ber, 1840 : Finds it also proved, that when the said purchase was made, the hides were placed in two lapping-pits apart from any other hides, there being no other hides in these pitsj that the said forty Monte Video hides were the only hides of that description 'then in the stock of John Anderson and Son ; that these hides were branded with a particular mark, and were contained in a separate invoice ; and that both the Monte Video hides and the native hides were entered in what is called the lap- ping-book, as deposited in the foresaid two particular pits ; that at the time of the purchase, the said hides were pointed out to the said David Greig as deposited in said pits ; and that some of the Monte Video hides were taken out of the pits and inspected by him ; and that he afterwards more than once called at the works of John Anderson and Son, and in- quired into the progress of the tanning of the hides ; and that, on one occasion at least, some of them were examined by him: But finds it proved, that although the said hides were so far separate and distinct from the rest of the hides in the possession of John Anderson and Son, nothing was done either by marking them or by entries, or an entry of the transaction with the complainers in any of the books of John Ander- P^-.„_ son and Son, or in any other *way to indicate that they were not L J the property of John Anderson and Son, or to individualize them in that respect from the rest of their property, by pointing them out or distinguishing them as being the property of, or appropriated to the complainers : Finds it proved that things continued in this situation — that is, precisely the same situation as at the date of the purchase, with the exception of the progress made in the process of tanning — till the 14th of March, 1840, when John Anderson and Son stopped payment, and called a meeting of their creditors : Finds that it has not been proved that there is any custom' in the tanning trade of selling hides when in the process of tanning, and the purchaser paying or granting bills for the price before delivery of the hides, upon the footing of the property or any right in the hides purchased being understood, according to the custom of the trade, to be then transferred to the purchaser as by con- structive delivery : Finds that it has been on the contrary proved that no CONTEAOT OT SALE. 377 Buoh custom exists, and that what is proved as to engaging hides in the pit before the process of tanning is completed, is altogether diflferent, the property of the hides not being held to be thereby transferred, and the price not being paid, or bills granted for it, till the operation is finished and the goods actually delivered ; and therefore finds that the transaction in question, instead of being in conformity, was in opposition to the usual custom of trade : Finds that, in these circumstances, nothing took place or was done which was sufiicient to constitute either actual or con- structive delivery of the foresaid hides ; and that the property, or real right in them, was not passed or transferred to the complainerS, but con- tinued at the date of the bankruptcy of John Anderson and Son to be vested in them, the sellers, and that the said hides were liable to be attached by their creditors, leaving the complainers to rank for the price on the bankrupt estate along with the other creditors ; and with reference to the agreement entered into by the complainers, in regard to the deci- sion of the question of their right to the said hides purchased by them as aforesaid, and to the assignation in favour of the respondents founded on, and their compearance as parties to the proceedings before the sheriff at the instance of the complainers, finds that the respondents, as coming in *place of the creditors of John Anderson and Son, are entitled |-»kc it to the property of the said hides; of new, and in terms of the L -I sheriff's interlocutor of 28th June, 1842, recalls the interdict which had been previously granted, refuses the prayer of the original petition for the complainers, and decerns ; and finds the complainers, Boak and Greig, liable in expenses in the Inferior Court; and further, finds them liable in the expenses in this Court." Boak and Greig reclaimed. Lord Justioe-Clerk I am of opinion that this interlocutor is sub- stantially well founded. The case is of importance, in order to prevent misapprehension as to such bargains as that which took place here. The principle of the law of Scotland as to the contract of sale admits of no doubt, viz., that while the obligations of the contract are constitut- ed by consent alone, yet if delivery is to be made at a future period, the property is not transferred, but remains with the seller until delivery. This is the leading principle of our law, as it was of the civil law and of the general jurisprudence originally of Europe. In the posthumous work of Mr. Bell on Sale, which has just appeared, he expresses an opinion, I see, that this principle is attended with unfortunate and even unjust consequences. Such considerations are immaterial in a court of justice, when the rule is fixed. But I think it right to state that, in my opinion the principle of the Scotch law is both recommended by practical justice and by expedietioy, and the very cases put by Mr. Bell of its operation on bankruptcy are, I think, illustrations of its benefits; for if loss is to oScur on bankruptcy, I think it is better that that loss shall be sustained by the party who did not protect himself as he might have done, and chose to trust the seller without proper precautions, than by the general body of creditors, who were entitled to hold their debtor to be the pro- prietor of goods of which he was the ostensible owner. Indeed, I was 378 EOSS ON COMMEEOIAL LAW. not prepared to find that the doctrine of our law could be impeached on the ground of justice. Besides, the counterpart of the principle is manifestly attended with fitr-rr-i most valuable results, which Mr. Bell, in this opinion, *bas over- L J looked, and are, singularly enough, not at all noticed in the work I refer to. I allude to the security of parties dealing onerously with the osten- sible owner iil oases where the property has not been transferred by actual delivery. This is really the main benefit of the rule of our law ; which cannot consistently obtain, without of course adopting the principle, that although the obligation of the contract of sale is perfected by consent, yet delivery is necessary to transfer the property. And in the opinion thus expressed by Mr. Bell, I think he must have forgotten the tribute paid to our law, in the evidence before the Legislature respecting the necessity of sustaining pledges made by factors in possession of goods, and in the great alteration made in the law of England, by the adoption in part of the principle of our law. I am sure no one can read either the 4th Geo. IV. c. 83, or the 6th Geo. IV. c. 94, as to factors, and then turn to the English case of Phillips v. Keith, on the last of these Statutes, without being forcibly struck with the benefits arising from our rule, and the evils of a partial and limited, instead of a general, adoption of it in England. Our law, however, is fixed. Whatever diflFerence of opinion existed as to the decision come to respecting the circumstances in the case of Broughton v. Aitchison, the exposition of the general principle of the law of Scotland in that case by President Blair, following out Stair and Erskine, is universally acknowledged to be sound. Indeed the reclaimers do not dispute the principle, for they endeavour to make out that delivery was made, although constructive delivery only. But it is important to remember that constructive delivery, when posses- sion remains with the seller, is in the general case wholly unavailing. It is not enough to say that such and such circumstances amount to constructive delivery as between seller and buyer. Against third parties and creditors, constructive delivery is in the abstract of no efiect at all in law. And in the limited class of cases in which the property has not actually been removed from the seller, yet the article deemed to belong to another, the delivery was truly not held to be constructive merely, but to be complete, and the separation of the property effectually made r*5561 ^<"'°'''^^°g *'<' ^^^ nature of the case, so as to avoid false credit L J to the seller from possession. The exceptions from the general rule are of this class — viz., cases where the possession of the party is not really looked to, in the usage and from the nature of his trade, as necessarily proving that the stock apparently on hand is his, and not considered as creating such a pre- sumption in the actual business of that trade. For instance, goods ii! a printfield, a ship in the building dock, goods in working artificers, or even grain in a granary, if the granary is what is called a public store or warehouse — the mere possession in these cases, from the nature of the trade, does not necessarily import or impress the public with the con- OONTEACT OP SALE. 379 viction, that the stock ia all the jjyoperty of the party in whose hands the articles are. Several of these trades receive the property of others, to have certain operations performed on them. Such is notoriously the character of their trade. Others undertake, say to huild a ship, receiving payments as the work advances ; or to improve or alter an article by certain changes upon it. In many of these cases the article was not, and is well understood as not likely ever to have been the property of the party in whose hands it is seen. In the case of a printfield, a store, and many other cases, this is really the nature of the case. Again, in many of the cases adverted to, the object of the trade is to have a supply of goods in a certain state of forwardness, and then to sell them under the undertaking (as part of the man's proper trajje) of completing for the purchaser the last operation in their manufacture; so that possession during this last operation does not truly hold out to the public the stock as even probably the property of the party. In such a case, to exclude evidence of the actual fact of property, would give to creditors a pre- sumption which in truth they never relied on, and hold that to be the party's stock which never was a fund of credit in his favour. In considering the class of cases mentioned in Mr. Bell's Commentaries, it will be found that this practical consideration applies, I think, to all the cases, and is really at the foundation of the doctrine — viz., that from the nature and objects of the party's trade, his possession of articles does not, in the opinion of the public, create the belief that they are his pro- perty, and *does not necessarily raise thereby any credit in his r^ccY-i favour as for a stock of his own. As to a printfield, for instance, L -I the public, when they see it always well filled, do not look to the stock as all the actual property of the bleacher. They know the reverse. They look to the goods as the criterion of the amount of profit he is making by bleaching, and of the extent of his employment. When it is said that the cases are illustrations of the effect of con- structive delivery, I think the use of this term somewhat misleads the mind, and directs attention from the true state of the facts. In these cases, I think the principle really at the foundation of the exceptions is what I have stated, viz., that the possession does not, in the particular and notorious facts of the trade, and in the opinion of the public, and of creditors who are to be protected, import that the goods or stock are really the property of the party in whose hands they are seen ; and therefore, that to exclude proof of the actual fact, would give the public a benefit, which, in dealing with the party, they did not truly believe they had. Many of the cases put by Mr. Bell are not cases of sale at all, followed by constructive delivery ; but cases where the article from the first belonged to another, and was only put into the manufacturer's hand for specific operations. The other cases are instances of the party carrying on his proper trade of completing unfinished articles for those who have bought them in that state — it may be, bought them from him or from others. In either case, his proper trad^ is to finish them off, and work them up; and the public know that when in that last stage, to which his proper trade relates, they are more frequently not his own property, but belong to others for whom he is is so exercising his trade. 380 BOSS ON OOSIMERCIAL LAW. Take the case of a working Bilvergmith finisliing an urn or vase — a case put by Mr. Bell. What he' is doing does not imply property in the opinion of the world. Btit take the other case of a silversmith, who may have workmen, but has also a large shop, and great stock of manu- factured 'articles ready for sale : you buy one of his vases, say unfinished, but desire it to be completed, or some alteration to be made on it. I am not prepared to say, that the buyer in such a case could follow that P^_ _„-. article. In short, in all the oases put by Mr. Bell, the ^question L J is made by him to turn too much on constructive delivery. I do not think that is the sound principle, nor is it the matter to which I think the Court has generally looked. The question really comes to be, was the article necessarily considered by the public as part of the stock of the trader, or did the possession import, in the circumstances, that the articles were the proper stock and property of the party ? Many criteria accordingly have been in some cases rejected, which were all that occurred in other cases, and which, in these other cases, seemed to make out what is called constructive delivery. The very same facts are insufficient in some cases — sufficient in others — yet the constructive delivery (if that had been the test) was as good in one as in the other. But then, in truth, the* Court were not establishing criteria for con- structive delivery in either set of cases. They were judging how far the actual possiession, considering the character of the trade, excluded the inquiry as to the alleged purchase. I think this is the true view of the questions discussed in the case of Kennie's cattle — of Sir Charles Forbes and others. And certainly it is at the foundation of the opinion of the majority of the Court in Paul v. Cuthberthson, as to growing trees, when, the actual possession under the infeftment of what was growing on the land, was held to exclude the inquiry as to a purchase not completed by delivery. I am glad to find, that in the posthumous work of Mr. Bell to which I have referred, he does in truth adopt, in substance, this view of the matter, although he continues the use of the term " constructive deli- very." He says that in the cases where exceptions have been admitted, what is required is to show " such fair indications of the goods being sold as may avoid any further credit to the seller." No doubt he terms the acts so recognised as amounting to this requisite — to be constructive delivery — and when so understood, the term may not be objeclionable. But, in truth, in considering what is sufficient according to that explana- tion of the principle, you do not go merely on what passes between the seller and buyer; but on what third parties might ascertain, and on what they were called on from the nature of the trade to ascertain, or to r*5591 ^^ ^■w^re they might encounter, and on the effect and *importance L J of what has passed in the particular trade. Takitfg the term, constructive delivery, in its strict and primary meaning, I think it is objectionable on principles of Scotch law, and apt to mislead. There are many acts which unquestionably amount to constructive delivery, which yet will not be sufficient in the great majority of cases. Mr. Bell himself holds the case of Aitchison wrong decided, in which certainly there were acts clearly amounting to what is termed and taken to be • OONTBAOT OH SALE. S81 constructive delivery, if the term has any correct meaning) but in which, as it was a private granary for a person's own grain, there was nothing to destroy the presumption that the grain was his own, or to exhibit any indication that it had been sold — and hence these acts were held by President Blair to be wholly insuflSoient. Accordingly, in the illustrations given in this small treatise on sale, Mr. Bell shows what he means by such fair indications that the goods were sold, as to avoid future credit; for he mentions — 1. Delivery of the key of^the warehouse, so as to exclude the seller; 2. Delivery to a car- rier or ^vha^finger; or, 3, Commencement of delivery. In this case, nothing whatever is proved in regard to the trade of a tanner, nor has been established as matter of notoriety by other deci- sions, to show that that trade is on the same footing with that of a print- field or other artificer, notoriously finishing articles which do not belong to them, as in the practice of selling the article in an unfinished state, they preparing and completing it for the purchaser. Hence I must take this as a common case, which falls within the undoubted rules of Scotch law. I wish to avoid saying what would have been sufficient to protect the buyer in this case, or whether any facts, amounting only to what is termed constructive delivery, would have done in this case, which would not have been sufficient in the case of any ordinary sale. I see nothing peculiar as to this trade, and therefore I am not called upon to say whether an entry in the books of a tanner would have been equivalent to an entry in the receipt book of a printfield. In many cases, entries in the books can bo of no avail, and it is unnecessary for the decision of the present case to say whether entries in the tanner's books would have been sufficient to protect the purchaser. *An entry in books, in most cases, really is no proof of deli- r^K/.n-i very of any kind, constructive or symbolical. It chiefly goes to L J make the evidence of the sale more patent. And if a party has reason to know that the actual possession, in the particular trade, dues not import property in the ostensible owner, and is called on to inquire before he gives credit, as in the case of a printfield, then the entry in the books is to be taken as such evidence of sale as avoids false credit. It seems to me to bear little on the point of delivery. It is true there is one strong fact proved, viz., removal of some of the bides out of the pit; but then it is to be remembered that this was only for inspection at the time of the purchase, and for completing the bar- gain — it was not an act forming part of, or tending towards, delivery at all. Hence, it is in no respect analogous to the removal of part of the goods out of a warehouse into a place whence they are to be put on a cart, or any similar act. In the view I take of the case, I think some of the findings of the Lord Ordinary might be unnecessary; but as I do not differ from them^ and have fully explained the grounds of my opinion, I think it is unne- cessary to propose any other judgment than a simple affirmance. I have only further to say, that we have not to consider what, in the ordinary case, may be the situation of a cautioner for a composition, even after sequestration, in such a case as the present. For it ia March, 1855.— 2? 382 ROSS ON OOMMEBCIAL L4.W. expressly admitted on record, that by special agreement, the cautioners in this case are entitled to the same pleas with the trustee in a seques- tration. Hence, private notice after bankruptcy is of no moment, after that admission. Lord Medwyn. — I concur in your Lordship's view. In the sale of movables, it must never be forgotten that delivery is the appropriate and legal mode of completing the transfer of property; although in some cases, for the convenience of trade, a symbolical or constructive delivery has been substituted in the room of actual delivery; but it is well observed in the work which carries this doctrine as far at least as any writer, and further than the Court did in the case of Buchanan, that it pju.„^-. is not even fancied convenienoy or facility to- the dealings of L -I *traders, "but only a necessity of an absolute kind, that can on strict principle authorize constructive delivery ;" and I think I may add, that wherever constructive delivery is admitted, everything must be done, which in the circumstances of the case can be done, to give evidence of the sale, though delivery had not taken place. In Eadie, 7th February, 1815, which was a sale of hides undergoing the process of tanning, which had been sold by the purchaser, who had sent them, after acquir- ing them, to a tan-yard to a third party, the question was not with the owners of the tan-pit who had the custody of the goods, but between the original purchaser and the buyers from him ; and the sale was not held to be complete, because intimation had not been made to the owner ■of the tan-pit where the hides were tanning. Now, in the present case, the sale took place on 30th January, 1840. The hides were at so early a period in the process of tanning, but this operation was not com- pleted till the month of December. For the hides, however, requiring this long process before they could be of use, a bill for £75, at four months, was granted, which was retired when due. A part of the hides were examined before the sale, by Boak and Greig, the purchasers, and put back into the pits — they were in two pits by themselves, apart from any others — directions were given by the purchasers to the servants of Anderson about them — a small piece was cut out of a few of them — but no entry of the sale was made in the books of the bankrupt, nor any mark put upon them by the buyers. In this situation, Anderson becomes insolvent, and this question we are to decide, as if he were sequestrated on 11th July, 1840. I do not say whether, if these omis- sions had been supplied, it would have been sufficient evidence of con- structive delivery. It would have at least approached nearer the case of Sir Charles Forbes than it does ; but I think it a most material conside- ration, that no custom has been proved of the sale of the hides when undergoing the process of tanning, and there can be no necessity, nor much reason, for paying the price ten months before the article can be removed, or any use can be made of it. It must always be a party embarrassed who wishes to convert such an article into money, andthe risk which the buyer runs, if he pays the price before delivery, must, I r*5621 ^^°^^^ think, always be an element *in fixing the price ; and if L J he does pay the price before delivery, he should see that every- ; thing at least is done which can be done to distinguish it as his property, \ . CONTRACT or SALE, 383 such as to show that it is in a different situation from the rest of the property of the seller; he having also to consider whether there be any convenience of trade admitted and acted on, as would sanction a sale in such circumstances, as has occurred with him. I am of opinion that that has not been done here, and that the property of the hides was not transferred, but would have been vested in the trustee under a seques- tration. Lord MoNCEEiFP. — I think this is a case of some nicety; but, on the whole, I am inclined to adhere to the Lord Ordinary's interlocutor. The hides were originally the property of Anderson and Co. — ^imported or purchased by them — lying in particular lapping-pits in their possession, in the process of tanning, and entered in their lapping-book as other hides in other pits were. They, or part of them, were of a particular description ; and, as I understand, were so described in the lapping-book, which also referred to the particular pits in which they were. So they stood as the property of Anderson and Company, and in their possession, at the time when the transaction Jn question took place. Then there was a contract of sale by Anderson and Company to Boak and Greig ; and it was part of the arrangement that the hides should remain in the pits of Anderson and Company, till the process of tanning should be completed. Before the bargain was concluded, a few of the Monte Video hides, were taken out of the pit, in order to be examined by Mr. Greig, and after being inspected were returned into the pit. After this, the trans- action was finished by the note delivered to Mr. Greig, and which bears — "To be delivered as soon as they are well tanned," and then the advoca- tors granted their bill for £75, in part payment of the price, which they had afterwards to retire from the bank, when it was discounted by An- derson and Company. It further appears, that afterwards the advocators, or a servant instructed by them, examined the state of the hides, and *gave r^j-coq-i instructions as to the course of the tanning; and that on one L -^ occasion Mr. Greig called, and cut a piece off some of the hides. It is not in evidence that the entry in the lapping-book was showp to Mr. Greig, Anderson being unable to recollect whether that took place or not. But it is clear that no entry was made either in the lapping-book, or in any other book of Anderson and Company, of the sale made to the advocators, or bearing that their hides lay in the pits as the property of the advocators. The Monte Video hides had brand marks on them, but these marks were there before the transaction. While the hides thus lay in the pits, Anderson and Company became bankru{)t. A settlement by composition took place, and the respondents became the cautioners. There seems to be no doubt, that before this arrangement the advocators had claimed the hides as their property, and that Anderson had admitted that the sale had taken place, and that he had held the hides as belong- ing to the advocators. But by special agreement Boak and Greig, in 381 £OSS ON COMMEBOIAL LAW. agreeing to the composition conditionally, agreed also that their rights should be decided on the same footing as if a sequestration had been awarded, and Anderson and Company had been legally bankrupt at that date, 11th June, 1840. In this state of the case, I am of opinion, 1. That the title of the respondents to claim the hides cannot be excluded by the fact, that, at the date of the composition-contract, the claim of the advocators was well known to the respondents. They are in the same situation as a trustee in a sequestration at that date would have been ; and he must have taken the property as it was, though subject to any question which might be raised. 2. The question is. Whether, at the bankruptcy, these, hides are to be considered as sold and delivered to the advocators, or whether they remained undelivered, and, as being so, formed part of the sequestrated estate of Anderson and Son ? That they were not delivered in fact, is clear, as they still remained in the tan-pits of Anderson and Son. But the question is, Whether, in the circumstances, there was constructive delivery ? r#'Sfi41 ■'■'' ^^^™® t° ^^ suflSciently proved, that these hides were L J -iisegregate and distinct from the other hides in the possession of Anderson and Son ; and the advocators plead, that there was construc- tive delivery at the time when some of them were taken out of the pit and examined, and then returned ; and when the bargain was immedi- ately thereafter concluded, and a bill granted, explaining that they remained there only for the process of tanning, for which Anderson and Son were entrusted with the possession under the diflferent contract of locatio operarmm. This, certainly, brings it to a point somewhat nice. But I aminclined to think that there are serious defects in the grounds of this plea. 1. The hides were in the process of tanning before the contract. They were purchased by the advocators in that state ; and not first purchased and delivered, and then sent for the purpose of tanning. Then, 2. The contract bears, that they were " to be delivered" as soon as they are well tanned. It is difficult to reconcile this with the assumption that they were already 'delivered. Delivery is postponed upon a condition indefinite. It is doubtful if the advocators could have required delivery before that process was completed. 3. No marks were put on the hides, or on the pit. I do not attach much importance to this : but the reverse would have been a material fact. 4. No entry was made in any book of Anderson and Son. This is the most important consideration. I am not bound to say whether that, with the other facts, would have been sufficient or not. But it is not here. The hides stood in the books of the bankrupts as their property. And the question is. Whether, in a case of bankruptcy, it can be held that a change of the legal possession had taken place, while the actual possession remained as it was? I think that it cannot. I see no authority for it. The passage in Mr. Bell's work is not altogether correct, the case of growing trees having been decided otherwise, Paul v. Cuthberthson, July 3, 1840 ; and there is no other case which comes up to this, even if that would have supported the plea of the advocators. The law of this country, CONTRACT OF SALE. 385 and of Europe in general, is much and deeply indebted to Mr. Boll, and I know that the value of his works have been appreciated not only here, but in other countries; but at the same time I hold that he is not quite ♦correct in this instance. The nearest case to the point is that r;)cKocT of Sir Charles Forbes. But, in that case, the wine had stood L J in the books of Lyall and Company, as the property of Sir Charles, for a long period ; and besides, as it was actually delivered before the sequestration, the question was. Whether it could be brought back under the Act 1696 ? The case of Eadie v. M'Kinlay, February 7, 1815, quoted by Mr. Marshall, does not seem to aid his plea. No similar plea was raised in that case. Forty-two raw hides had been purchased by Vallens, a tanner, and Watson, a currier, jointly, from G. and A. Murray, tanners in Stirling. They were " sent to the tan-pits of Vallens to be tanned." Vallens surrendered his interest in them to Watson, who granted his bill for the price. Watson resold them to the Murrays ; but they remained in the tan-pits of Vallens till the tanning should bo finished. Then Vallens became bankrupt, and the Murrays also were sequestrated. In the meantime M'Kinlay, a creditor of Watson, had poinded the hides ; and the competition was between him and the trustee on the estate of the Murrays, The question was, Whe- ther the re-sale to the Murrays, as an assignation, had heeu sufficiently intimated to Vallens, or the trustee on his estate ? The hides had been sent to the tan-pits of Vallens solely for the purpose of tanning; and there was no attempt by his trustee to say that they were his property. They were held to lie there as the property of Watson, unless his assignation to the Murrays was sufficiently intimated. The ultimate decision, after various opposite interlocutors, simply held that it was not, and that M'Kinlay's poinding, as in right of Watson, was prefer- able. Such a case cannot apply to the present. On the whole, though it is a very fair case to try, and a hard case for the advocators, I must think the interlocutor right. I do not think there is any evidence of a fixed usage of trade to affect the question one way or the other. -^ Lord CocKBURN. — I do not think this case attended with any difficulty. The general principle of the law is, that the sale of a movable article can- not be completed without the actual delivery of the thing sold. Con- structive delivery is *allowed where actual is impracticable ; but the general policy of the law is, to connect the property with the possession, and to admit no case as proper for constructive delivery, without something bordering on necessity ; and above all, until the parties can show that they did everything they could to make the deli- very actual. It would, therefore, be sufficient of itself to induce me to adhere to the interlocutor, that the purchasers here did nothing whatever, or at least far less than they might have done, to warn the world that the property had been transferred. It was left with the sellers in order that it might be manufactured, but it- might have been actually delivered, and given back again, by a separate transaction ; and at any rate it might have been marked as the purchasers'. The pits in which it was [*566] 386 EOSS ON OOMMEKOIAL LAW. tanning might have been marked. But nothing whatever was done. The occasional visits of the purchasers, and their cutting a small bit off a few of the hides in order to see how the tanning was going on, though sufficient to evince the understanding as between the original parties, was perfectly insignificant as between them and the public. Delivery, even constructively, was marked by no palpable act. But the matter does not rest merely upon this failure by the parties to indicate the transfer. There are three circumstances which attest pssitively that no completed transfer was understood, or intended, to have been effected. The hides were not meant to be purchased as mere skins, but as tanned leather ; and it is proved that the process of tanning could not be finished for many months. In other words, the article was not to be in a deliverable state for a long time. Accordingly, it is evident, that instead of meaning to take delivery at the date of the agreement, the parties meant to postpone it, and to defer the completion of the purchase till it should be seen whether the article was ever to be in the condition in which alone it was intended to be bought. Hence it will be observed, — First, That the original missive bears that the hides were " to be delivered as soon as well tanned j" that is, that no delivery, was to' take place sooner. Secondly, That accordingly the price was only partially, not fully paid, and indeed could not be so, r*'ifi71 ^^"'''^^^ ■'' ^^s I*"' ^'^^^ *fixed. It was to depend upon the result L J of the tanning. Thirdly, and especially. That the property was not transferred in the books of the sellers. These circumstances, but particularly the last, take this case out of the range of all the precedents that have been referred to. If delivery were held to have taken place here constructively, I scarcely see where we could stop. This is an attempt to deprive creditors of movable pro- perty, which they did not merely see the bankrupt in the obvious pos- session of, but which had not been paid for by any purchaser ; and which not being deliverable till a distant period, stood as the bankrupt's pro- perty in his own bopks. To sustain this would be to mislead the public, and to create a false credit in favour of the seller. The Court accordingly adhered, with additional expenses. The judgment in the case of Broughton r. Aitchison cannot be approved of. The Court regarded the two sales as one transaction, and proceeding upon that assumption, they held that the complete delivery under the first sale was tanta- mount to a partial delivery under the second. The judgment appears also to be erroneous, on the ground that the wheat sold was not a specific ascertained quan- tity, but a portion of a larger quantity from which it was to be separated. It was also erroneous in regarding the servant of the seller as a third party, holding pos- session of the wheat for behoof of the seller, in which case intimation of the sale without delivery would have completed a transfer of the property, whereas, in point of fact, the party to whom the sale was intimated was a servant of the seller, and the wheat was in the seller's own possession. On no ground, it is thought, could delivery in this case be held to have been made. The case of Lang v Bruce was attended with much greater difficulty, but it is difficult even in that case to hold that delivery in the proper legal sense of the term had taken place In the CONTRACT OE SALE. 387 case of Gibson v. Forbes, it appears to be still more clear, that the sale wai not completed by delivery. The true principle appears to have been applied iu the subsequent case of Boak t. Megget. *WHEEE THE ARTICLE SOLD IS IN THE POSSESSION OF A THIRD ,,^k(,q, PARTY, AND THE SALE HAS NOT BEEN INTIMATED TO HIM, THE ■- ■' PROPERTY IN THE SUBJECT DOES NOT PASS TO THE PURCHASER, AND THE CREDITOR OE THE SELLER MAY ATTACH IT ALTHOUGH THE PUR- CHASER MAY HAVE PAID THE PRICE. EADIB V. MACKINLAY. Feb. 1, 1815.— S. F. C. 206. JdHN Vallens, tanner in Glasgow, and William Watson, currier there, purchased, in the year 1810, forty -two raw hides from George and Archibald Murray, tanners in Stirling. The hides were sent to the tan- pits of Vallens to be tanned. Vallens afterwards gave up his interest in them to Watson, who granted his bill to the Murrays for the price. By a transaction unnecessary to bo detailed, Watson resold the hides to the Murrays, 16th February, 1811, but they were allowed to femain in the tan-yard of Vallens till the process of tanning should be finished. A short time after this resale by Watson to the Murrays, but before the hides wore fit for removal, Vallens became bankrupt, and James Anderson, merchant in Glasgow, was appointed trustee on his seques- trated estate. George Murray, on 8th April, 1811, verbally informed Anderson that they had forty-two hides of such a description in the tan-yard, (but with- out mentioning that they were the hides purchased from Watson,) that they were ready to carry them away, and would pay the charges. The following letter was also written to Anderson : — "Sir, — Let this serve to inform you, that when our George Murray was in Glasgow last week, he went down and looked at the hides that Mr. Vallens is tanning for us, which he thinks are sufficiently tanned] therefore we will take it very kind if you will give orders that they may be dried ; and on receipt there- of, please let us know the amount of the charge for tanning, which we will accordingly remit. We suppose it must be with you we ought to settle. — We are, Sir, your most obedient servants," (Signed) " George and Archibald Murrays, tanners, Stirling. "Stirling, 16th April, 1811. *"No. of hides Mr. Vallens is tanning for us is 21 crop, 21 rtggg-i butt shoven." *- ^ Upon 16th May, 1811, George Maokinlay, toll-keeper in Glasgow, who had acquired right by indorsation to a bill accepted by Watson, exe- cuted a poinding of the hides as his property, they remaining still in the tan-yard of Vallens. The Murrays presented a petition to the Magistrates of Glasgow, pray- ing an order on Vallens, and Anderson the trustee, to deliver up the 388 BOSS ON COMMEROIAt LAW. hides on receiving the price of taAning, and for an interdict against the Bale of thetn, a warrant for which Mackinlay had obtaining on his poinding. The Magistrates ordered Mackinlay to be sisted as a party, and appointed the other defenders to be judicially examined. Anderson, the trustee, declared that the communication on the 8th April, 1811, made by George Murray, that there were ahont 40 hides in the possesion of Vallens, which had been given to tan belonging to them, and the letter of 16th April, 1811, was all the intimation he ever had on the subject, so far as he recollected. Vallens declared that Anderson the trustee had men- tioned to him, that he had had a letter from the pursuers about the hides but that he had in answer told him, that he could say nothing about them, but that they were the property of Watson. The Magistrates pronounced several' interlocutors on the pleadings of the partiesj-finding, " That the hides in question being in the custody of the defender Vallens, for the purpose and under the process of tanning, the pursuers could not complete the re-purchase thereof from Watson by taking actual possession of the said hides, and removing them : That the said John Vallens being under sequestration, he must be considered, in his custody of the said hides, as holding them merely as the servant of his creditors, represented by the defender Anderson, the trustee on his estate : That, in these circumstances, the intimation made by the pur- suers to the defender, Andersoij, was sufficient to complete the right of r*';7m '^® pursuers *thereto : Preferred the pursuers accordingly to L J the said hides, and appointed them to be delivered up on pay- ment of the expenses incurred in tanning." Mackinlay having brought an advocation. Lord Bannatyne, Ordinary, pronounced this interlocutor, 12th May, 1813 : — "Kemits the cause to the Magistrates, with instructions to alter their interlocutor, and find that the complainer's right to the hides in question is preferable to that of the respondents, George and Archibald Murray." His Lordship gave out at the same time, a Note, as part of his judg- ment, bearing in general, that while he concurred with the Magistrates in the legal views of their judgment, he considered them as inappli- cable to the case, and observing that nothing but an eflFectual trans- fer of the hides, duly intimated to Anderson, who, as the trustee for the creditors of Vallens, was the legal custodier of them, could prevent them being carried oflF by Watson's creditors : That the only written notice to him was the letter of 16th April, 1811, merely requiring de- livery on an allegation of a transfer, not by Watson, who had the only power to give it : And that, even holding a verbal notice to have the same effect, it appeared from Anderson's declaration, that that also con- sisted merely in a similar requisition by the pursuers, and that ho re- ceived no order, written or verbal, from Watson, the proprietor, it not being alleged, or offered to be proved, that the writing of 16th February, 1811, by which Watson passed from the purchase, and agreed to the Murrays receiving the hides, was communicated to Anderson ; and, there- fore, that the property remained with Watson at the date of poinding by Mackinlay, and was effectually carried by that diligence. A petition being presented against this interlocutor by James Eadie, OONTKAOT OF SALE. 389 cashier to the Stirling Banking Company, as trustee on the sequestrated estate of Archibald Murray, and as general disponee of George Murray, and having been followed with answers, the Court (3d December, 1813) " Altered the interlocutor complained of, and remitted to the Lord Ordi- nary *to remit to the Magistrates of Grlasgow to ordain delivery r«K7i-i of the hides in question, and found the respondent liable in ex- L J penses." The defender then reclaimed, and on advising his petition, with answers, the Court (15th Juno, 1814) "Altered the interlocutor com- plained of, and returned to the interlocutor of the Lord Ordinary, and found the petitioner entitled to his expenses." The Pursuer reclaimed, and 'pleaded : — By the law of Scotland, de- livery of movables is not indispensable in constituting a sale by word or writing, to transfer the movables. Such was also the principle of the Koman law; Digest, lib. xli. tit. 2, § 21. There is an infinity of cases in the complexity of commercial intercourse, where actual delivery of the commodity de manu in manum cannot be accomplished, and never- theless the efficiency of the sale and legal transference of the article take place. The law has accordingly admitted of supplementary expedients, by symbolicical tradition in some cases, and by constructive or inferred tradition in others; Bell's Com. pp. 27, 69; Buchanan and Cochrane V. Swan, Karnes' Sel. Dec. June 13, 1764 ; Mathie's Trustee v. Auchie, Ure, and Company, 23d November, 1804, reversed by House of Lords, 16th March, 1810. The present case is precisely one of that character and description. The hides were actually in the tan-pits, undergoing the operation of tanning ; delivery was therefore impracticable, without destroying, or at least deteriorating the subject. The contract of sale, however, was clear, the sui)ject was specific, and it should seem of neces- sary consequence, that constructive delivery adhered to the transaction, or that a legal transference was inferred. The requisite of a sale are consensus, res, etjpretium ; and it is only where some of these are defec- tive that intimation is resorted to as a substitute. Intimation to a cus- todier may, in one view, bo considered as equivalent to an order to deliver ; and in another, when made by the purchaser, as a warning to such third party that the goods are truly the purchaser's, and that he is not thereby to bo frustrated of his acquisition ; but it does not follow that the notice enters into or is required to give effect to the previous contract. Such *intimation is applicable properly, if not entirely, r^cYoi to the transmission of bonds, nomina dehitorum, or other obli- L J gations or rights constituted by writing ; Stair, b. iii. tit. 1, §,15. But it is unnecessary to enter into this legal inquiry, as an explicit and for- mal intimation was made of the sale to the proper party, which was, at all events, sufficient to render the conveyance complete. As to the argu- ment of the defender, that the intimation was not regular or explicit, in respect the letter did not mention the manner in which the hides became the property of the Murrays ; that it gave no description of them so as to distinguish them from others; and that the deed of assignment was not exhibited, the petitioners would observe, that there is no principle or reason which requires the communication of the whole circumstances 390 ROSS ON COMMERCIAL LAW. of the acquisition of a subject, in order to accomplish the object of inti- mation. All that seems to be required for the security either of the purchaser or custodier, as depositary, is, that notice be given to him that the property is de facto changed. The letter of 16th April, 1811, joined with the previous verbal intimation, and the evidence of Vallens having given information that the hides were Watson's, suflBciently specified them, so that their identity, and the discrimination of them from other hides, could be a matter of no difficulty. From a slight examination of the cases quoted by the defender, it will appear that all of them related to the solemnity of intimations requisite to complete the transference of written deeds, and of course that the intimation was accompanied with exhibition of the deed of assignment. Pleaded for the Defender. — In order to transfer property by sale, or other transactions inter vivos, the mere will of the owner, though a necessary ingredient, is not of itself sufficient. Some external act must in general be done by him, or by his authority, without which, how- ever clear his intention, the property will remain with him ; and the great rule is, that tradition is necessary j Ersk. b. ii. tit. 1, § 18. Al- though, from the exigencies of affairs, constructive delivery has been admitted as sufficient to transfer the property, it ought never to be per- mitted except in cases of necessity, and it ought to be accompanied pjKwq-i *with such precautions as shall clearly and publicly denote the L J transference which is made by means of it. In the case of goods in the hands of an artificer, for the purpose of undergoing some opera- tion, it is obvious, that, when they are sold, actual delivery is sometimes impracticable, and, therefore, something short of actual delivery may be allowed to transfer the property. But it must be admitted, on the other hand, that a mere contract of sale or assignment is not sufficient for that purpose. The vender, whose goods are in the hands of an artificer, should grant an order of deli-very, and this order should be intimated to the latter. Now, considering this case simply as a sale of movables, without reference to any written assignment, delivery of one description or another was requisite to divest Watson of the property. But, sup- posing that some act less strong than an order of delivery on the part of Watson could be received as equivalent, there is not even a casual allu- sion by him to the sale, in the conversation with Vallens or Anderson, sufficient to divest him of the property. It is not alleged, that he either saw them after the 16th February, or wrote to them, or gave any direc- tions with regard to the hides, which could lead them to suppose the property had passed from him. There are various cases, where the ven- der, after a sale, had done something apparently with an intention of transferring the property, but which was denied that effect ; 26th Janu- ary, 1785, Hill V. Buchanans, affirmed in the House of Lords ; 7th Feb- ruary, 1786, Salter v. Factor on Knox and Company's estate. But, in the present case, there was not even such an inchoated attempt on the part of Watson to transfer the property. If the letter by Watson, of 16th February, be regarded in the light of an assignation, nothing can be clearer than that the only equivalent to actual delivery, was a regular intimation of the assignment to the CONTRACT OP SALE. 391 custodier; Erskine, b. iii. tit. 5, § 3; Stair, b. iii. tit. 1, § 6&7; Bank- ton, b. iii. tit. 1, § 6; Kilk. p. 145; Bell's Com. pp. 72, 73; Kilk. p. 145. And even private knowledge will not supply the want of regular intimation ; Hume and Elphinstone v. Murray, 11th December, 1674, Diet. vol. i. p. 64 ; Adamson v. Mitchell, 15th June, 1624, ibid ; Home v. Home, Durie ; Maoallzean v. Macallzean, June, 1586, *Col- r^K-jA-i ville ; Advocates v. Sir K. Dickson, Diet. vol. i. p. 64 ; Mac- L -• gill v, Hutchison, 22d January, 1630, ibid. ; Dickson v. Trotter, 18th January, 1776. There is complete evidence here that the assignation never was even mentioned to Anderson, nor anything said which could lead him to conjecture, that the hides to which the Murrays alluded were those of which Vallens and Watson had been originally the joint proprietors, which afterwards became the sole property of Watson, and which Vallens had been employed to tan for him. There was not, therefore, even any private knowledge on the part of Anderson of the pretended assignment, and beyond all doubt, no intimation of it. The property, therefore, remained with Watson, and might be safely delivered to him, or legally attached by the diligence of his creditors. Lord Justice-Clerk. — This has always appeared to me a case of difficulty ; but at present, I approve of the interlocutor. I don't feel myself moved by any suspicion of fraud, nor by the argument, that Vallens was the proper custodier of the hides, because the trustee comes to be the custodier of all the bankrupt's means and effects. But my doubt was with regard to the other point, whether, giving full effect to^ the letter of 16th April, and previous communication with Anderson, both of which are silent as to the transaction between Watson and tke Murrays, Anderson was certiorated as to the transfer. I am of opinion there was no legal notification. If that letter had mentioned the trans- fer by Watson, it would have been sufficient intimation. Lord Meadowbank. — I don't think there are grounds for a reversal of the interlocutor. It appeared to me, that it was essential that there should be reasonable advice to the custodier of the goods, that the right to them had been changed. The letters are sufficiently strong, but they don't trace the goods as having been the property of Watson, and dis- posed of by him ; they don't specify that distinctly. A verbal notice would have been quite sufficient, though there had been no letter. If Watson had told the matter to Anderson, it would have been sufficient. These letters did affiDrd strong presumption that this *communi- r*K7K-i cation was made; but comparing these with the declarations, ■- -■ they do not import such notification, but rather the contrary. But I still think they are not too late ; they can examine Vallens; if he knew the fact of the transfer, it would be good evidence. I have no concep- tion, that nothing but a letter will prove a sale or transfer of movables, and they may come forward even now with a regular condescendence. The Court concurred in these opinions, but thdught that it was too late for the pursuers to come forward at the end of the cause with an offer of proof of the intimation, when, though always alleged by them, they never before offered to prove it. They therefore (7th February, 1815) adhered. 392 ROSS ON COMMERCIAL LAW. WHERE THE GOODS SOLD ARE IN A BONDED WAREHOUSE, AND THE SELLER IS THE KEEPER OF THE WAREHOUSE, THE GOODS ARE NOT HELD TO BE DELIVERED IF THE SALE IS NOT INTIMATED AT THE WAREHOUSE, AND THE DELIVERY ORDER ENTERED IN THE WARE- HOUSE BOOKS, AND IF THE PRICE IS NOT PAID, THE SELLER IS ENTI- TLED TO RETAIN THE GOODS. AULD V. HALL. June 12, 181,1.— S. F. C. 290. By the statute 43 Georg^ IIL cap. 132, § 39, 42, and 43, it is enacted, First, That when the goods of which schedules are annexed to it, com- prehending a great proportion of the imports of this country, are im- ported, a bond may be granted to the Crown by the importer, for the duties on these goods, and they may remain deposited for the period of fifteen months, before the duties are demandablo. Secondly, That the goods shall be placed in warehouses, furnished at the expense of the importer or proprietor, and approved of by the officers of the revenue. Thirdly, That books shall be kept, wherein shall be noted what is depo- sited and what is taken out, with the name of the persons to whomf it is delivered. Fourthly, That the warehouse in which the goods are depo- sited shall be under double locks ; the key of the one lock to be ke^t r*'i7fin ^y ^^^ revenue officer, and *the key of the other by th'e importer L -1 or proprietor, and that the goods shall not be removed without payment of the duties. Fifthly, That if the goods are not removed within fifteen months, they shall be sold publicly; the price to be ap- plied, first, for payment of the primage, freight, and charges of warehouse room ; and, secondly, for payment of the duties of custom and excise. But that such sale shall not be made unless the price amount to the duty chargeable on the goods; and if such price cannot be obtained, the goods shall be utterly destroyed by the proper revenue officer, and the proprietor shall have no claim for their value. Sixthly, That sam- ples shall be taken in a particular manner in the j(resenee of the revenue officer. Seventhly, That the proprietor or importer shall have access to inspect his goods at any time, on giving notice to the public officer in a particular manner. .William Hall and Company, merchants in Leith, imported 10 pipes of port wine, which (3d May, 1810) were entered at the custom-house, and bond was granted in terms of the statute. Hall and Company, as general agents, were the keepers of a bonded cellar. The wine was placed in their cellar under double locks, of which one lock and key was'kept by the officers of revenue, and the other lock and key was kept by Hall and Company. Hall and Company sold these 10 pipes of wine to Bodan and Skirving, who gave bills for the price. Ten orders of delivery were at the same time given by Hall and Company, in similar terms with'the following : OONTRAOX OI" SALE. 393 "Alex. Dick, Esq., Collector of "Excise, Leith. "Edinburgh, 14th May, 1810. " SfR : — Please receive duty, and deliver to the order of Messrs. Bodan and Skirving the undermentioned cask Portugal red wine, imported per the Mayflower from Oporto, 3 May, 1810, in a vault situated in Timber- Bush. (Signed) " Robt. D. Handyside, For William Hall & Co." "W. H. No. 10,139, 138 gallons." } •In the books of Hall and Company, viz., in the waste-book, r±c»--, ledger, warehouse-book, and cellar-book, which they kept as wine L -" merchants, this sale was entered. But the sale was not intimated to the oflScers of the revenue. Bodan and Skirving (9th July, 1810) sold this wine to Robert Auld, merchant in Glasgow, and indorsed to him the orders of delivery. But this sale was not intimated either to Hall and Company or to the revenue oflBoers, under whose joint custody the wine was held. Robert Auld (10th August 1810) paid the duties on ono pipe of the wine, and removed it from the cellar; and on this occasion paid Hall and Company cellar rent for that pipe, from the date of its being placed therein to the date of its removal. He then sold four pipes to Messrs. Oswald and Hall, of Glasgow, and indorsed to them the orders of deli- very, but the wine was not removed. This sale was not intimated to the custodiers. Bodan and Skirving then became bankrupt, before the bills for the price of the wine to Hall and Company were paid. They called a meet- ing of their creditors, offered a composition, which was accepted, and obtained a discharge. In the meantime, Hall and Company presented a petition to the Judge Admiral, alleging that the price was unpaid, and praying for warrant of service on the said Bodan and Skirving, and to ordain them to lodge " answers thereto within a short space ; and, upon advising this petition, with or without answers, to grant warrant to and authorize the foresaid Alexander Dick, William Oliphant, and Francis Sharp, to deliver to the petitioners the remaining nine pipes of wine, marked and numbered as aforesaid; and to prohibit and discharge the said Bodan and Skirving from interfering with or disposing of the same, unless on payment of the stipulated price; and in the meantime to interdict, prohibit, and dis- charge the said Alexander Dick, William Oliphant, and Francis Sharp, from delivering the said quantity of wine to the said Bodan and Skirving, or to any person deriving right from them, until the issue of the cause." This petition was appointed to be answered; and.in the meantime the interdict was granted. *Answers were lodged by Robert Auld ; and the interlocutor r;|,KiTQ-i of the Judge Admiral (18th October, 1810) was, — "In respect L -I that the wine in question has been all along in the petitioners' cellars, 394 EOSS ON OOMMERCIAL LAW. under the joint custody of them and the officers of the revenue, and that it does not appear that the alleged indorsed orders to the respondents were reported to the petitioners, or entered in the warehouse books, grants warrant in the terms craved, continues the interdict, and decerns." Of this interlocutor Kobert Auld pursued an advocation ; and (4th March, 1811) " the Lord Ordinary refused the bill." The advocator reclaimed, and pleaded : — The first and main question is, Whether the sale was completed by delivery to Bodan and Skirving ? By the transaction with Bodan and Skirving, Hall and Company were divested of the property. The sale was completed. Any intimation to Hall and Company of their sale to Bodan and Skirving was unnecessary, because they were the sellers as well as custodiers. Intimation to them being unnecessary, the question comes to be whether intimation was necessary to the revenue officers. That this is not necessary in practice is offered to be proved, and prima facie evidence of this practice is produced. .If, after the transaction with Hall and Company, Bodan and Skirving had been sequestrated, it is plain that the creditors of the latter would have been preferable on the commodity, and that the former must have ranked for the price. By the judgment of the House of Lords, in the case of Auchie, Ure, and Company, it is established, that if intimation of the sale be given, although the goods remain bonded, and the price unpaid, the right of stopping in transitu is at an end. Now, in this case, intimation could only be made to two persons, first, It might be made to Hall and Com- pany; or, second. To the revenue officers. To Hall and Company intimation was not necessary, because they sold the goods, and could not therefore be ignorant of the transmission. After the sale, they became custodiers for Bodan and Skirving, and cellar rent was charged upon the goods, and actually paid on part of them. r*'i7cn *"'^° *^® revenue officers intimation was not necessary. They L J were joint custodiers, not as proprietors, or for behoof of propri- etors, but merely for the duties and behoof of the Crown. Any one of the subsequent purchasers was entitled to have removed the goods upon payment of the duties : and, these being tendered, the revenue officers could not have refused delivery, on the ground that they must intimate to the person in whose name they were originally bonded. If, therefore, in a question with the creditors of Bodan and Skirving the sale with Hall and Company was concluded, and the transitus at an end, it follows that any acquirer from Bodan and Skirving must stand in their right, utiturjure auctoris. Neither is it of any consequence that there was no entry of the transac- tion in the books of the bonded cellar. It was the duty of Hall and Company, who were keepers of it, to have made the proper entries ; and they are not entitled to take an advantage arising solely from their own negligence. Hall and Company the pursuers maintained, — In any question with Bodan and Skirving, while the wine remained in the seller unremoved, the pursuers had a right to retain or to stop it OONTRAOT or SALE. 395 in transitu till the price was paid. The pursuers no doubt granted an order of delivery to them; but this order never could be acted upon with- out the pursuers' concurrence, because the goods were in their custody. There can be no doubt, therefore, of the right of retention or stoppage which existed in the pursuers, as in a question with Bodan and Skirv- ing. To enable Bodan and Skirving to make such a transference of their right as should be effectual against the pursuers, and to give a subse- quent purchaser, a third party, a complete right, it was necessary that such purchaser should obtain an order of delivery from Bodan and Skirv- ing, and intimate that order. The order of delivery was not a nego- tiable document like a bill of lading or a bill of exchange. The same possession which was in Bodan and Skirving was not given to the advo- cator. This could only be done by intimation of the order of delivery. Lord President Blair. — This case although new in some *re- p^kqa-i spects, must be determined according to principles long estab- L J lished in law. Movables cannot be effectually transferred or pledged without delivery, if in the possession of the party transferring or pledg- ing, or if in the possession of a third party, without intimation to the custodier. In all cases, the same possession must be given to the pur- chaser which was in the seller. The sole purpose of the bonding system is to give the merchant the use of the property without paying the duty. It was not intended to alter the general principles of law. During the subsistence of the, joint custody under the bonding act, the law of Scotland and the custom of merchants coincide in requiring intimation of the successive sales and entry thereof in a book which by, Jy Statute, must be kept for that pur- pose, and which affords a security nearly equal to that of seisin and record. This book should be kept by the keeper of the bonded cellar, and not by the revenue officer. The cases hitherto decided are in per- fect consonance to law. If the present case were otherwise decided, it would create an engine of boundless fraud between prior and subsequent purchasers. The interlocutor of the Court (14th May 1811) was, — " Adhere to the Lord Ordinary's interlocutor reclaimed against." And (12 th June 1811J the Lords refused a petition without answers. A BILL OF LADING IS A NEGOTIABLE INSTRUMENT LIKE A BILL OE EXCHANGE, AND THE ASSIGNMENT OF IT TO AN ONEROUS INDORSEE OPERATES AS A COMPLETE TRANSFER OF THE PROPERTY DESCRIBED IN IT. L — ARTHUR V. HASTIB. Dec. 12, 1770.— S. Mor. 14209. In the year 1764, Messrs. Hastie and Jamieson entered into a con- 396 ROBS ON COMMERCIAL LAW. tract with Archibald Danlop, merchant in Virginia; by which they be- came bound to furnish him with gopds from Glasgow ; and, in return, Dunlop, became bound, "That whatever *tobaccos he shall ship L '*° J for Clyde, shall be consigned by him to them for sale, to be dis- posed of by them to the best advantage ; the net proceeds to be applied to the credit of the said Archibald Dunlop, his accounts for the goods to be sent out to him." Besides tobacco, the contract mentioned other goods to be assigned to them by Dunlop. Dunlop having gone to Virginia, purchased the ship Betsy on his own account ; and in implement of the contract shipped on board of her 288 hogsheads of tobacco; which, being short of a full loading, he procured freight for 140 hogsheads more, belonging to other merchants ; so that the total amount was 428; as is usual also, when a cargo of tobacco is sent, he put on board 7960 staves ; one-half of which were his own property, the other being allowed to Conkie, the shipmaster, as his per- quisite. * The bills of lading for the 288 hogsheads of tobacco and 7960 staves, as well as that for the 140 hogsheads sent on freight, were transmitted by Dunlop to Hastie and Jamieson as his consignees both of ship and cargo. The consignment was acknowledged in a, letter from Dunlop to them, dated 25th May, 1765. The ship arrived in Clyde on the 25th of August, 1765. In the morn- ing of the 26th, Hastie, as consignee, went on board, and took possession of th| vessel; and a few hours thereafter, Arthur, a creditor of Dunlop's, used arrestments in the hands of Conkie the master ; and this diligence being loosed upon Hastie and Jameison's finding surety to make the sub- ject forthcoming, and Hastie and Jamieson restored to possession, Arthur arrested again in their hands. A competition having ensued which of the parties had the preferable right to the subject arrested, Hastie and Jamieson, as consignees, for their own behoof, or Arthur in right of his arrestments, it was, by an interlocutor of the Court, dated 17th February, 1768, determined in favour of Arthur, upon his arrestment, both as to ship and cargo. That interlocutor being adhered to by subsequent judgments, Hastie and Jamieson appealed to the House of Lords ; and upon the 10th of r*5821 •^P"')l'^70, the following judgment was *given: — "Ordered and L J adjudged, that the interlocutors of the 17th of February, 2d and 19th of July, and 29th of November, 1768, and 2d March, 1770, so far as they relate to the cargo, be reversed ; and it is hereby declared, that the appellants have .a special property therein, preferable to the respondent's arrestments. And it is further ordered and adjudged, that the said interlocutors, so far as they relate to the ship, and all the other interlocutors complained of be affirmed." II. — BOGLE V. DUNMORE & CO. Feb. 2, 1V87.— S. Mor. 14216. Walter Monteath sold to Robert Bogle a parcel of sugars, then OONTEAOT or SALE. 39!7 on board of a ship just arrived in the harbour of G-reenoclr, and belong- ing to Dunmore and Company. At the same time the bill of lading, blank indorsed, was given up to the purchaser ; who thereupon granted to Dunmore and Company an obligation for the payment of the freight. Dunmore and Company being creditors of Monteath, who in the mean- time had become bankrupt, now refused to deliver the sugars to Bogle, of which they claimed a right of retention, as being the property of their debtor, having caused the goods to be carried from ship-board into a pri- vate repository of their own. In an action at the instance of Bogle v. Dunmore and Company, for delivery of the goods, it was Pleaded inQ-| the purchaser, who paid to him warehouse rent. In the case of L J Green v. Haythorn, 1 Starkie's Reports, the purchaser had not only intimated to the custodiers of the goods, but had received samples ; and they had obeyed several orders for delivery of portions of the goods to sub-vendees. In the case of Stoveld v. Hughes, 14 East, 308, the vendors having marked the timber lying at their own wharf to D., for- warded part of it to one place, and part to another; and D. " having Bold the whole to the plaintiff, who notified such sale to the defendants, and was answered that it was very well; and then, in the presence of the defendants, the plaintiff marked all the timber lying at their wharf, and afterwards marked that which had been forwarded to the other two stages. Held that the defendants, after such assent to the transfer, and such marking by the plaintiff, could not retain or stop any of the timber as in transitu, upon the subsequent insolvency, before the day of pay- ment of D., the original vendee, to whom payment had been made by • the plaintiff, whatever question there might have been as between the original vendors and vendee." In like manner, in Holt v. GriflSn, 10 Bing. 246, an order was made on a London wharfinger " to deliver the goods to plaintiff: defendant, on sight of the order, before the goods arrived, promised to deliver them to plaintiff on their arrival. Held that plaintiff might maintain trover against him on his refusal to deliver after arrival." In all these cases the custodier had got notice of the sale, and circum- stances equivalent to delivery had occurred. But here nothing of the kind took place. Little and Co., the custodiers, never heard of the sale to M'Ewen and Co. Neither did Smith and Go., and although their agent got notice of it on the day before he heard of the bankruptcy of Bowie and Co., he did nothing — undertook to do nothing — and was required to do nothing — beyond authorizing a delivery, which order of delivery, as indorsed, M'Ewen and Co. failed to intimate to the actual and only legal custodier. I do not think that any of these cases, therefore, support the pleas of M'Ewen and Co. There was nothing done in this case by the actual custodier of the goods at all. There was nothing done by Smith and Co. to mislead M'Ewen and Co., — of the *sale to whom they do r.gjQ-i not even appear to have been aware. The notification to Alex- L J ander, or to his clerk, was not an act of constructive delivery ; and if so, it is not easy to see how it can be considered to afford any personal exception against Smith and Co. Yet this was all that M'Ewen and Co. did in pursuance of a sale made, as alleged, more than a month before, and that tardy act was so performed on the eve of the bankruptcy of the original vendors. 416 EOSS ON_0OMMER0IAL LAW. Lord MtJREAT returned this opinion : — I concur in the opinion of Lord Robertson. It is assumed by the advocators, -lihat James Alexander was the custo- dier of these sugars, and that the order by Smith and Co., and the note by Alexander's clerk, transferred them to the advocators ; but it appears to me clear, that Messrs. Little, the owners of the bonded cellar, were the sole custodiers of the goods in that cellar, and real or constructive delivery could only be made by them. Mr. Alexander was the mercan- tile agent of the respondents, Messrs. Smith ; and there is no ground for making any distinction between Messrs. Smith and their agent. Delivery of these goods might have been obtained from Messrs. Little by the order of Alexander, but that did not make Alexander the deposi- tary of the goods any more than Messrs. Smith : and he had no more power to make either real or symbolical delivery than they had. Whe- ther a receipt for the goods granted by Messrs. Little might or might not have been negotiable, like a bill of lading, is a question that does not occur here. But a mere order to deliver could have no effect, until it was carried into execution by some act to which the custodier of the bonded goods was a party. Lord GocKBUEN returned this opiiiion : — I agree with Lord Robertson both in his result and in his reasoning. I consider the possession to have been in the keeper of the bonded cellar. And if this was the fact, then I think that nothing was done to change, or in any way to affect, this possession. In almost every one of the cases referred to by the advocators, the possession had either con- r*fim *''^'*®'^ ^i*'^ '^^ seller, *or he had consented to hold the goods as L J delivered. I am not aware of any case, or of any principle, which warrants the idea, that where goods sold are in the hands of a third party, the unpaid seller can be prevented from stopping delivery on the bankruptcy of the buyer, provided this was done before the first buyer, or a second buyer from him, had had any communication with the custodier. The personal objection against the seller that is set up here, seems to me to be groundless, and indeed, if it were well founded, it might apparently be set up in every case. For it seems just to come to this — that the owner having unquestionably sold, cannot interfere with the right he thereby conferred. Every stopper in transitu does this, and must do it. The plea put in for the second purchasers, on the ground that they paid to the first purchaser, seems to me utterly ground- less. The interest of the first seller, who has not yet been paid, cannot be disregarded because his purchaser has made a second sale, and pocketed the price. Lord CuNiNQHAME returned this opinion : — I am of opinion that M'Ewen and Sons had a preferable claim over the sugar in dispute, prior to the sequestration of Bowie and Co., and consequently that the decree should now be pronounced for restitution of the goods to the advocators, in terms of their original application to the sheriff. As the case is at- tended with some specialties, not to be found, in so far as I can discover, in any prior cases which have occurred in Scotland, it may be proper briefly to note. these, before entering on the legal merits of the question. CONTRACT OF SALE. 417 The case relates to 42 hogsheads of sugar imported by Messrs. Smith, from Jamaica to Greenock, in July, 1843. These goods were deposited in a bonded warehouse, under charge of Messrs. Little, at G-reenock ; and the deposit was made notin the name of Messrs. Smith themselves alone, but of " James Alexander for J. and A. Smith." The sugar was bo entered in the books of the bonded warehouse, on 1st July, 1843. The 42 hogsheads had sufficient distinguishing marks, 12 of them being marked W. H. and 30 marked D. It is not alledged that there were any other hogsheads so marked in the bonded cellar. *0f course there was some purpose in thus entering the r-i^ain-i sugar in Mr. Alexander's name and not in that of the owners, L J Messrs. Smith, alone; and the object is manifest. It could only be to give Alexander, who was on the spot at Gfeenoek, a more 'convenient and immediate control over the sugar deposited in the warehouse there. Accordingly, when Smith and Co. first sold this sugar in August, 1843, to Bowie and Co., they did not on that occasion address the order for delivery to Little and Co., the keepers of the warehouse — the latter could not have answered the order of Smith and Co. without Alexan- der's consent — but they made the order of delivery on James Alexander, the entered depositary of the sugar in the bonded warehouse. The order was in these terms ; — • " Glasgow, 16th August, 1843. " Mr. James Alexander, Greenock. " Dear Sir, — You will please deliver to the order of Messrs. James Bowie and Co. the undernoted forty-two hogsheads sugar ex St. Mary from Jamaica, in bond. <'We are, dear Sir, you most obed. Servts., ," James and Archd. Smith and Co. " P. DuQD. Macparlane. ^ 12 hhds. D 30 hhds." Bowie and Co. did not take those hogsheads out of bond ; but at the desire of Smith and Co., the 42 hogsheads were weighed on the 19th September, by Alexander at Greenock, who made out an account of the weight of the sugar as then given over to Bowie and Co., and despatched it to Smith and Co. The same account shows that the price was adjusted by that state of weights, and a bill drawn by Smith and Co. on Bowie and Co. for £1076, 2s. 9d. — the net balance of price, deducting duty ; but it is denied that that bill was accepted by Bowie and Co. At or about the same period, (the precise day does not appear,) Bowie and Co. sold the 42 hogsheads of sugar to the advocators, M'Ewen and Sons; the price is admitted to have *been paid by the latter to r*gj3-i Bowie and Co., — and the following indorsation appears on the <- J original order for delivery : — "42 hhds. sugar. " Deliver to the order of Wm. M'Ewen, Sobs, and Co. (Signed) " Jas. BoWlE and Co." The order with the ^ preceding indorsation was, on 25lh September, 418 ROSS ON COMMERCIAL LAW. 1843, carried to Mr. Alexander, the depositary, in whose name the sugar was bonded at Greenock ; and though he was not at home himself, his clerk most properly in his absence delivered to the advocators the fol- lowing note : — " Greenock, 2bih September, 1843. " Delivered (or delfver) to the order of Messrs. Wm. M'Ewen, Sons, and Co., this date, WH ^^ ^^^^- I Sugar ex St. Mary. D SOhhds.J "James Alexander. " P. John Adams." At that date no incapacity attached to Bowie and Co., but their estates were sequestrated next day ; and, immediately on that event, Mr. Alex- ander was induced, by his principal employers, Messrs. Smith, to attempt to reclaim the sugars, and to remove them to other premises, in order to found a plea of stoppage in transitu on the part of Messrs. Smith, as against M'Ewen and Son. I am humbly of opinion that that plea is not maintainable on the following grounds : — 1. From the mode or terms in which the sugars in dispute were de- posited in the bonded cellars, in the name of " Jas. Alexander for J. and A. Smith," it is thought that there are fair grounds for holding that the iransitus wag at an end here, by the transmission of the order of delivery by the second vendees to Alexander, and by that party acting thereon, and making such entries or transfers in his books as were sufficient to charge M'Ewen and Sons, as the owners of the sugar, with the future rents and responsibility accruing upon them. Such was the effect of the weighing over, and statement of the accounts by Alexander, as against Bowie and Co. and M'Ewen and Sons, on 19 th September, 1843, vouched by the account, No. 57 of j^rooess. r*fi141 *That operation brought the present case within the rule laid L J down in the case of Hurry v. Mangles, 1 Campb. 452, founded on by the parties in the present discussion. It was there observed by Lord Ellenborough, that " the acceptation of warehouse rent is a com- plete transfer of the goods to the purchaser," and, in the later case of Swanwiok v. Storer, which occurred so lately as 1889, the criteria for determining possession in questions of this description were so clearly explained by Lord Denman, that they deserve to be kept particularly in view in the present discussion. A quantity of oats lying separately in a bin (No. 40) of a particular cellar in Liverpool, were sold by Turner and Co. to John Marsden, who got an order of delivery from Turner and Co., in whose name the oats had been previously entered; the order was addressed to William Easton, the keeper of the warehouse, and Easton entered the same in his book. Marsden then sold the same oats to Swanwick and Hall, and Marsden gave them an order on Easton, which was also entered in the book of the latter. Marsden failed in seven days afterwards, and then Turner and Co. attempted to reclaim or stop the oats as still in transitu. In that case, the second purchasers were preferred, on the opinion of Mr. Justice Patteson at the trial • and the OONTRAOT OP SALE. 419 Court of King's Bench afterwards unanimously assented to his Lord- ship's view of the law. " The question," said the Lord Chief Justice of the King's Bench in this case, " turns upon the construction of two deli- very orders. The oats wore all that were in hin 40. They were transferred to the plaintiflFs in the defendants' books, hut never weighed over. The plaintiffs had accepted a bill for the price, which they dul^ honoured. On Mursden's failure, Blessrs. Turner sought to stop them, and the only question if=, Whether weighing over was in this case necessary, in order to vest the property in the plaintiffs, and defeat the stoppage in transitu? Neither of the contracts of sale were given in evidence. "The cases on this subject establish the principle, that, wherever anything remains to be done by the seller, which is essential to the com- pletion of the contract, a symbolical delivery, by transf^ in the whar- finger's books, will not defeat the right of stoppage in transitu, as between buyer and seller. Hanson v. MeyerJ 6 East, 614 ; Sliepley v. Davis, 5 Taunt. 617; Busk v. *Davis, 2 M. & S. 397, abundantly -r+gjg-. show this. Therefore, if part of a bulk be sold, so that weighing L J or separation is necessary to determine the identity or individuality (as Lord Ellenborough expresses it in Busk v. Davis) of the article, or if the whole of a commodity be sold, but weighing is necessary to ascertain the price, because the quantity is unknown, the weighing or measuring must precede the delivery ; and the symbolical delivery, without such weighing, will not be sufficient. " But where the identity of the goods and quantity are known, the weighing can only be for the satisfaction of the buyer, as was held in Hammond v. Anderson, 1 New. Rep. 69 ; and in such case the transfer in the books of the wharfinger is sufficient. We are of opinion that the present case is of the latter description, and that this property passed as between buyer and seller. We have, therefore, no occasion to resort to the doctrine of Estoppel, which is strongly enforced in Hawes v. Watson, (2 B. & C. 540 j) but we do not mean in so saying, to cast any doubt upon the authority of that case. Under these circumstances, the rule for a nonsuit must be discharged." — 9 Adolph. & Ellis, 895. These views arc in precise conformity with those enforced in the prior case of Whitehouse v. Frost, 12 East, 613, which also affords an excel- lent illustration of the rules of law applicable to questions of this descrip- tion. " A. having sold 40 tons of oil secured in the same cistern, sold 10 tons to B. and received the price; and B. sold the same to C, and took his acceptance for the price at four months, and gave him a written order for delivery on A., who wrote and signed his acceptance upon the said order ; but no actual delivery was made of the 10 tons, which con- tinued mixed with the rest in A.'s cistern — ^yct held that this was a complete sale and delivery in law of the 10 tons by B. to C, nothing remaining to be done on the part of the seller, though, as between him and A., it remained to be measured off; and, therefore, that the seller could not, upon the bankruptcy of the buyer C, before his accept- ance became due, countermand the measuring off and delivery in fact of the 10 tons to the buyer ; nor were the goods in transitu so as to enable the seller to stop them." 420 KOSS ON OpMMEROIAL LAW. • rti«T ^^^ present case resembles those now quoted, in most of *their ' L "-"^"J important features. No doubt, here there was no notification to Little and Co., the keepers of the bonded warehouse, and no entry in their books. But that was unnecessary when James Alexander was the registered custodier and depositary of the sugars, and when there was due intimation to him. The civil or constructive possession of the goods was in Alexander. He was trustee, first, for the vendor, and, after inti- mation to him, for the vendee ; and when the first purchasers received an order for delivery from Smith and Co. addressed to Alexander, who weighed the sugar, and marked the purchasers in his books, it is appre- hended that as much was done as could be reasonably required, to trans- fer the property of this sugar, even in a question between the origi- nal vendors and vendees. But it is unnecessary to rest the judgment in the present case on that ground, as the claim of the sellers for restitution of the sugar admits of another answer, if possible more clear in law and equity. 2. The original owners, Messrs. Smith, having given the first purchar sers the mandate or order of 15th August, 1843, directing Mr. Alexander, the depositary of the sugars, to deliver the same " to the order of Bowie and Co.," all third parties were entitled to rely on that order, and to consider Bowie and Co. as having the uncontrolled dispo.sal of the sugars. Hence, as it is not disputed that M'Ewen and Son have bona fide given full value for the sugar, the original vendors have no right of stoppage in transitu, either in equity or in law, maintainable against the second vendees. In this view, the chief point involved in the present case is of immense importance in a mercantile country. The question simply is, Whether, in the purchase and transfer of merchants' goods, third parties are enti- tled to rely upon, and give value for goods purchased by them on the faith of an unqualified order of delivery from true and solvent owners, addressed to the registered custodier of the goods ? On what rules of equity or policy can the claim of the original seller, in such a case, be maintained as against a bona fide third party, who has given full value for the goods? Such a claim appears to me to be contrary to the first principles of r*fil7T J"s'^^^; ^^ "^^ ^s of mercantile law. As well observed *by L -I Judge Buller, in the noted case of Lickbarrow v. Mason, " In all mercantile transactions, one great point to be kept uniformly in view is, to make the circulation and negotiation of property as quiet, as easy, and as certain as possible. In the application of that principle to the present case, surely traders like the respondents cannot justly complain of hard- ship, when implicit effect has been given by third parties to their own authority, to alienate goods, held by all interested solely for the purposes of trade ? It is obvious to remark, that the privilege of stopping goods in transitu, is not a right deserving any peculiar favour or extension in law. The whole doctrine is of comparatively recent origin, having been introduced on principles of equity, when oar progress in commerce gave a sanction to the usages and policy of trade. It would appear that stoppage of goods OONTEAOT OF SALE. 421 tn transitu was then recognized, in order to afford a just and reasonable remedy to sellers against bankrupt purchasers, in cases where contracts of sale were incomplete. But no rules of equity can entitle a vendor, who has sent a customer into the market, with an unqualified order for deliv- ery of goods, to set up an adverse claim to the prejudice of a third party, who has given full value for the transference, on the faith of the order. On this point, one of the earliest cases that may be referred to is that of Dick V. Lumsden, decided by Lord Kenyon in 1793, (Peake's Cases, 189,) and noticed both by Lord Tenderden, (last edition, p. 538,) and by Mr. Cross in his " Treatise on Stoppage in Transitu," as a case of au- thority. It is thus abridged by the latter (p. 391) — " Thompson and Co. having sent goods from Ireland to London, to be sold by Eustace and Holland, their factors tBere, wrote to them to insure the goods, and sent them a bill of lading, not indorsed, but having the names of Eustace and Holland on the back ; and being applied to by them for an indorsement, answered by letter, that if the bill of lading was not indorsed, it was a mistake, and they would send an indorsement. Upon this Eustace and Holland sold the goods to Bohem and Taylor; audit afterwards happen- ing that they (Eustace and Holland) were unable to pay bills drawn upon them by Thompson and Co., on the general account, one Dick paid the bills for the honour of the drawers; *and knowing all their trans- r*oio-i actions, applied to them for an indorsement of the bill of lading, L J which they sen* him, and thereupon Dick demanded the goods of the master of the ship, who refused to deliver them to him, but delivered them to the persons to whom Eustace and Holland had sold them. Upon this, Dick brought an action against the master, but Lord Kenyon ruled, that the plaintiffs had, under such circumstances, no right to take the goods out of the possession of the vendees of Eustace and Holland, inas- much as the transfer had been made under proper and binding authority." Another case to the same effect, and bearing a strong resemblance to the present in some of its leading specialties, is that of Davis v. Rey- nolds, in 1815, 4 Campb. 267, "A quantity of flax was purchased in 1815, by Cooper and Co., merchants in London, from Peacock and Co. at Hull, payable by bill at two months. It was accordingly shipped for the port of London, and the bill was accepted. On the 2d of October it was re-sold by Cooper and Co. to the plaintiff Davis, who paid them for it in cash on the 5th, and took a receipt from them specifying the terms of the bargain, A few days afterwards it arrived, and was landed at the defendant's wharf. By this time Cooper and Co. had become insolvent, and the flax being demanded by Peacock and Co., the consignors, was delivered to them upon an indemnity. " The plaintiff's (Davis) counsel, in opening the case, proposed to pro- duce the bill of lading, and to show that it had been indorsed to the plaintiff before the insolvency of Cooper and Co. ; but as it was unstamped, it could not be received in evidence." Lord Ellenborough's direction was to the following effect : — " I think Cooper and Co. had a power to transfer the property, so as to defeat the right to stop in transitu. They were the purchasers of the flax, and had completed their title to it, by accepting the bill of exchange. The 422 ROSS ON COMMERCIAL LAW. property had vested in them, therefore, or it would have been in abeyance till the time of credit had expired, and the bill had been paid or dis- honoured. The receipt given by Cooper and Co. to the plaintiff was a good note in writing, within the Statute of Frauds, and at that time he (.fQ-, had no reason to suspect their title. *Peacock and Co., the oon- L J signors, were then in the situation of paid vendors. Therefore, when the flax was deposited at the wharf, I think it was received by the defendant on account of the plaintiff Davis, and ought to have been de- livered up to him." Giving due weight to these precedents, as establishing rules of indis- putable authority in mercantile law and practice, Mr. Cross, in his, late, ' " Treatise on the Law of Lien and Stoppage" cautiously and repeatedly obserjfes, that most of the pleas competent to vendors in oases of stoppage in transitu, are only maintainable " between the original parties to the sale," though he certainly adds in one passage, (p. 382,) that " a second vendee of a chattel cannot stand in a better situation than his vendor, if no valid and legal transfer of the articles purchased has been effected;" of course that means, that in cases where the sale is incomplete, quoad the vendor, and where something remains to be done by the first seller, the interest of a second vendee must follow the bad title of his author; but in other cases the right of a second vendee, as that of an innocent and onerous third party, is carefully respected and protected. But when the present case is tried by these rules, I ean find nothing to support the plea of the original vendors. Here every act required on the part of the vendors to complete the sale was gone through. Nothing remained to be done. The hogsheads of sugar sold had already distin- guishing marks, and required no separation from any mass — they did not need to be weighed in order to complete the sale — but nevertheless they were weighed — and bills were drawn on the first purchasers for the price ; and the whole transactions on the part of the sellers were concluded, by their giving the purchasers an order of delivery of the goods addressed to their agent, the registered custodier of -the goods, in the bonded cellar, which was intimated to him, and entered in his books before Bowie's bankruptcy. It is apprehended that|these specialties combined, afford a stronger case in favour of the last vendee, than can hi found in any of the precedents before detailed. It appears to me, also, to deserve particular remark, that the specialty which attends the present case, is not to be found in any of the numerous r*fi20n 1^®^*'^°"^ which have occurred in other *competitions for disput- L J ed goods in bankruptcy. In all of these in our books, the goods were entered in bonded cellars in name of the original vendors. In such cases, orders of delivery, of course fell properly to be addressed to the keepers of the warehouse direct, and there was fair ground for holding that the transfer was not completed, at least between the original parties, till intimation to the warehouse-keeper. But when the goods were de- posited, as in the present instance, in name of the sellers' agent, the order of delivery fell to be addressed 'to him, and was completed by M'Ewen and Co.'s intimation of the order to him, and the enry of the new accounts in his book. CONTRACT OF SALE. 423 When M'Ewen and Sons, the second purchasers, acquired right to the sugar, they got an indorsation to Bowie's order of delivery, which was intimated by M'Bwcn to Alexander, as the agent and registered custo- dier, who entered M'Ewen's transfer in his books. That entry I conceive to bo in every respect as binding on Smith and Co , the constituents of Alexander, as on Alexander himself. By their mandate of 15th August, 184.3, they directed Alexander to deliver the sugars "to the order o: Bowie and Co." M'Ewen and Sons intimated that order to Alexander before Bowie's bankruptcy, and it was acknowledged by Alexander. M'Ewen and Sons had by that time paid full value for the sugar ; so that even in a question with Smith and Co., they were, to use the words of Lord Ellenborough, in an analogous case, in the situation of vendees who had paid the price ; and, of course, stoppage of the sugars as in. tran- situ against them, is out of the question. It ite of no consequence in the present question, that Bowie and Co. had not accepted the bill drawn on them by Smith and Co. for the price. No such bill appears to have been sent to them by Smith and Co. for acceptance for many weeks after they had given an order of delivery to Bowie and Co.; and as no man could conjecture that Bowie and Co. had not paid the price, or granted bills for it, the loss arising from the in- dorsation should fall on the first vendors who framed the order, and not on the second and innocent vendee. Had M'Ewen and Sons, in place of exhibiting the order to Alexander, gone direct to his constituents, Smith and Co., and got them, as they were bound, (and would have done before *Bowie and Co.'s bank- r,/.oi-i ruptcy,) to indorse the order of delivery, their indorsation obvi- L -■ ously would have excluded them from setting up such a plea as that now insisted on. But it was unnecessary for M'Ewen and sons to go to Smith and Co., when the latter had previously empowered Alexander to deliver the sugar to the order of Bowie and Co. Smith and Co. were equally bound by Alexander's acknowledgment and recognition of M'Ewen and Sons, as they would have been by their own adoption of M'Ewen and Sons' purchase. In these circumstances, it is neither necessary nor relevant to inquire, in this particular case, whether the agent, after intimation, got any change made in the books of the bonded warehouse-keeper? If that was the duty ot the agent, and he failed in it, the principal vendors cannot found on the neglect of their own agent or trustee. At all events, whether advantage might have been taken of the omission by creditors of the sellers, in case of their bankruptcy, it is supposed that solvent vendors in high credit, like Smith and Co., could not themselves found on the neglect of their agent, to enable them afterwards to repudiate and re- tract an unqualified order of delivery, under their own hand, whiob third parties h;id freely and bona fide acted on. From the object and terms of that order, the vendors (at least on the principles of our law) were bound to warrant it, and to give all due implement of it to onerous third parties. What the effect of such an order of delivery as Smith and Co. gave to Bowie and Co. may be in the law of England, I am not entitled or 424 BOSS ON COMMERCIAL LAW. qualified to assume with any certainty. In some instances, it would appear that technical pleas may be raised in cases of this description, on the Statute of Frauds in England, which have no place in our liw. Notwithstanding this, the precedents before quoted appear to afford a strong inference in favour of the second purchasers, had the case occurred in English practice. But looking to the principles of our own law, I cannot entertain the least doubt that the order of delivery of 15th August, 1843, which the respondents gave to Bowie and Co., addressed to the registered holder of the sugar, was a document transferable to third parties for adequate value, and was not afterwards revocable by the granters. r*f>99T *^'' ^^® ^"^ unqualified authority to their agents to deliver cer- L -I tain hogsheads " to the order of Bowie and Co." It related to specific articles of commerce, intended for disposal and sale in the public market, and therefore.its plain object and meaning was, to enable Bowie and Co. to dispose of the sugar to any onerous purchaser, as speedily and easily as they themselves had bought the same articles. It would be a mockery of security in mercantile business, to hold that such an order, if acted on by third parties, for full value paid, could be retracted on any pretence by the original vendors. Indeed, I have no idea that the validity and eflScacy of these or similar orders, as to the transference of any description of moveables, can be disputed according to the com- mon law and practice of Scotland. Many analogous cases may be figured ; — suppose, for example, that a gentleman sent a collection of rare paintings to town, or a valuable horse to be sold, under the direc- tion of an agent of superior trust — if he subsequently sent a letter to that agent, expressly desiring him to deliver any of these specific subjects " to the order of a purchaser" named — and if that agent acknowledged intimation, and, still more, if he entered a second purchaser in his books, on the transfer and mandate of the first purchaser, could the original vendor recall the article from a second vendee, who had paid full value and been recognized by the agent, because formal intimation had not been made of the sales to the auctioneer or livery-stable keepar in whose premises the paintings or the horse, respectively, had been deposited, by the direction and in the name of that agent ? Such a plea seems to me to be quite untenable. Were it necessary, I should proceed to observe that I am by no means satisfied that the Act of 6 Geo. IV., cap. 24, founded on in the revised case for the advocators, was not, intended to form an available protection to onerous purchasers acquiring goods under such an order of delivery as is here iFounded on. Viewing that Statute as plainly intended for the benefit of trade, I am rather disposed to think that it made orders for delivery of goods as transferable in the domestic market, as bills of lading were long ago established to be for goods at sea. But this might require a discussion of some length and nicety, which r*6231 ■"■ '^^'^*^" ^^°^ entering into, as I consider the *rightof the second L -J vendees (the advocators) to the goods in dispute to be sufficiently established, according to the principles of the common law of Scotland and in conformity with all the precedents of best authory in mercantile law and practice. OONTaAOT 01' SAI.!!. 425 Lord MoNOREirr returned this opinion : — I concur in the opinion of Lord Cuninghame. The case appears to me to be new and diflScult. But I beg leave to observe, that there seems to me to be a great want of precision in the statements of the claim of Smith and Co. That claim must rest either on the assumption that the goods remained in the legal possession of Smith and Co., or that they were in transitu between them as vendors, and Bowie and Co. as the vendees. I think it impossible, in the cir- cumstances, to maintain the first proposition. Mr. Alexander, the agent of Smith and Co., seems to have acted on the supposition that the second was the state of the goods, when he required them to be removed from the warehouse in which they lay to another place ; and it may reasonably be asked, why this was done, or how the case would have stood if they had not been so removed ? But I apprehend that Mr. Alexander, who had entire authority to make delivery of the goods, after having, upon due notice of the sale to the advocators, entered them in his own books (for the act of his clerk must be taken as his act) as actually delivered to the latter, and granted a certificate to that effect, could not be in bona fide to order them to be so removed, or to retract or stop the delivery ; and I farther conceive, that Smith and Co. were not, in these circumstances, in bona fide to recall the goods, as in trans- itu between them and Bowie and Co., after their agent had recognized them as fully delivered to Bowie and Co., and then as delivered to the purchasers from Bowie and Co., on the faith of which value was paid. If these goods were delivered to Bowie and Co., they could never be claimed by Smith and Co. on any footing. For, if there were even a doubt as to the transfer of them from Bowie and Co. to M'Ewen and Sons, that could only be a question between the creditors of Bowie and Co. and the advocators. But I am of opinion, that in this question they are to be taken as effectually delivered to M'Ewen and Sons, (i *I conceive this case to be perfectly distinct from the cases r»f>.24-| which have arisen, in questions among creditors, concerning the L J necessity of specific notice to the keeper of a bond warehouse. For, in the first place, I think that in this case Mr. Alexander was the party to whom the custody of these goods was entirely committed, and to him there was ample notice; but, second. It appears to me that Smith and Co., a solvent house, are barred from repudiating the deliberate acts of their own agent, having full authority to authorize, or to certify, the delivery of these goods. I refer for the fuller explanation of my views of the case, to the opinion of Lord Cuninghame. I do not just hold an order of delivery to be exactly on a footing with a bill of lading, as a negotiable instru- ment. But I am of opinion, that it is to be taken as so far negotiable by mercantile usage, that, in a question with the vendors, acting by an authorized agent, the fair bona fides of the transaction, by which mer- chants, on the faith of such an order transferred to them, pay the full value of the goods to the original vendees, ought to be duly observed. Lord Ivory returned this opinion : — I arrive on the whole at the same conclusion with Lords Cuninghame and Moncreiff — though I hardly 426 BOSS ONOOMMERCIAL LAW. think the case sufficiently prepared on its facts to enable one to form any- very satisfactory opinion. Had the case been sent to a jury, and the facts settled by a verdict-sunder the direction of the Court, as usual, as to matter of law — -I cannot but think that much of the seeming diffi- culty that now attends it would have disappeared. As it is, and dealing with the question in the mixed character of Judge and jury, the view which I am at present disposed to take of the case is as follows : — 1. I hold it clear, that had the sugars been in a bonded warehouse belonging to Mr. Alexander himself — instead of being in one to which he had access only through the medium of Little and Co., — the intima. tion by M'Bwen, Sons, and Co., of the original delivery- order granted by the Messrs. Smith, and afterwards indorsed over by Bowie and Co., and its relative acceptance implied in the actings of Mr. Alexander's r»fi9^n ^^^^^ (which I hold in this respect entitled to the same eifect as if L J *they had been Alexander's own) would have been enough to constitute a complete and executed delivery in M'Ewen, Sons, and Co.'s favour. The individuality of the sugars sold was definitively ascer- tained, the sale being of so many entire hogsheads, distinguished and identified by particular marks. So, also, nothing remained to be done in order to ascertain the amount of price. Indeed, as between M'Ewen, Sons, and Co,, and their immediate vendors, Bowie and Co., (though it might have been satisfactory to know somewhat more precisely the par- ticulars of the transaction between these parties,) it is assumed as the condition of the argument — that the price (possibly a slump one) had actually been paid. Then, as between M'Ewen, Sons, and Co., and the Messrs. Smith, (whatever may have been the case in a direct question be- tween the latter and Bowie and Co.,) the terms of the delivery-order were so conceived as to enable Bowie and Co. to dispose of the sugar as a spe- cific corpus for a specific price — as well as to entitle M'Ewen, Sons, and Co., witi perfect good faith, to purchase from them, and pay the price, upon that footing. If the Messrs. Smith brought themselves into a situation of disadvantage, by leaving such a power in Bowie and Co.'s hands, while as between themselves and Bowie and Co. it was yet required for the completion of their contract, that there should be a weighing over of their sugars, siM imputent, I do not exactly know, ip the very loose state in which the facts have been left, whether, even as in a direct question with Bowie and Co., the weighing over was really intended for more than the satisfaction of the purchaser, and it may be another question (but still a question of fact) whether — the process of weighing over having actually taken place, though in the absence of Bowie and Co. — the circumstances under which that weighing took place were not such as to include both Bowie and Co. and the Messrs. Smith ; or, at all events, when combined with the subsequent intimation of the order of delivery by M'Ewen and Sons, and the acceptance of it on the part of Mr. Alexander, were not sufficient to infer, an adoption of the weighing on the part of all concerned. But I do not think it necessary to go into any of those questions. It is enough (upon the supposition that Mr. Alexander was warehouseman) that the delivery-note operated, OONTRAOr OF SALE. 427 on its face, as an *assent on the part of Messrs. Smith — 1. To rone-] a re-eale by Bowie and Co. ; and, 2. To delivery by Alexander, L J to whosoever might purchase from them. For, in such circumstances, to use an English expression, Mr. Alexander, by what took place with M'Ewen and Sons, effectually " attorned to them."— 2 Campb. 344. And " the g iods having thus been transferred into the name of the purchaser, it would," as Lord Ellenhorough emphatically observed in another case, " shako the best established principle, still to allow a stop- page iit (randtii. From that moment the defendants" (here Mr. Alex- ander) " became trustees for the purchaser," (M'Ewen and Sons,) " and there was executed delivery, as much as if the goods had been delivered into his" (their) " own bauds." — 2 Camp. 249. In this respect the present case runs almost on all-fours with Hawes, 2 B. & C. 540; if indeed it be not even a stronger case. For there, as between immediate vendor and vendee, there was no doubt but that weighing over would have been necessary to the completing of the contract; yet, without any weighing whatever, the sub-vendee who had paid the price, and notified the order of delivery to the middleman, was preferred ; Mr. Justice Bayley making the following most important observations, with reference to the relative position, in such a question, of the original vendee who had not paid, and the subvcndee from him who had : — " This," his Lordship says, " appears to me very different from the ordinary case of vendor and vendee. In such cases, justice requires that the vendee shall not have the goods unless he pays the price. If he cannot pay the price, the vemior ought to have his goods back; but if the question arises, not between the original vendor and original ven- dee, but between the original vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods. What is the honesty and justice ani equity ot the case? Surely that the vendee, who has paid the price, shall be entitled to the posses.sion of the goods. I am of opinion that when Messrs. Raikes an Company" (here Messrs. Smith) " signed the order to transfer, weigh, and deliver, thut, according to the settled course and usage of trade, enabled Maberly and Bell" (here Bowie and Co.) " to sell the goods again. There are many cases in which it has been held, that if the first vendor c'oes *anything ^#227-1 which can be considered as sanctioning the sale by his vendee, L J that destroys all right of the former tj stop in transitu. Stovold v. Hughes, 14 East, 308 ; Harman v. Anderson, 2 Catapb. 243. 2. If such would have been the case, supposing Alexander to have been immediate holder of the warehouse, T see great difficulty in finding any substantial ground upon which to rest a different conclusion in the actual circumstances. For, so far as the Messrs. Smith are concerned, lean look upon Alexander in no other light than as the proper legal custodier of the sugars in their behalf. It is particularly unfortunate, that upon this, the most important, if not the turning point of the cause, the ques- tion of fact was not submitted to the investigation and verdict of a jury. But, drawing my own conclusions from the evidence, (such as, if a jury- man, I think I should have been apt to draw, I am strongly disposed to hold — 1. That the Messr-. Smith knew no other custodier or the sugars 428 ROSS ON COMMEKOIAL LAW. but Alexander ; 2. That there was no direct connexion between them and Little and Co., the actual holders of the warehouse; 3. That any connexion which subsisted with Little and Co. at all, was entirely mat- ter of private arrangement between the lat^ter and Alexander ; — and, 4. That, accordingly, the Messrs. Smith themselves could not have reached the sugars in Little and Co.'s warehouse, unless by the permission, and through the medium, and with the express and active concurrence, of Alexander. If Alexander, for his own use and behoof, had rented ware- house-room from the Littles, and had thereafter deposited the sugars ex- clusively in his own name, without any mention of the Messrs. Smith, it is plain, that however much the Little^might, in such case, be regarded as custodiers for Alexander, it was Alexander, and Alexander alon^ that would have been custodier for Messrs. Smith. The Littles' ware house would, in such a case, and so far as the Smiths are concerned, have been just as much the proper warehouse of Alexander, as the ware- house of a carrier has, in many esses, been found to be the warehouse of the vendee, where, by a private arrangement between himself and the carrier,, the vendee had for his own purposes acquired a right to use the carrier's warehouse. It seems to make no substantial distinction in this r*fi2S1 ''^^P^*''') ^^^^ 'Alexander deposited the sugars, not exclusively in L -I his own name, but in the name of "James Alex inder for J. and A. Smith." For the efifect of this could only be, to make Little and Co. holders of the sugars, not directly for the Messrs. Smith, but still for Alexander, though now, perhaps, in the character of Messrs. Smith's trustee. But when a trustee, for his own convenience, enters into a sub- contract with a third party for accommodation in that party's warehouse — let it be of his principal's goods — it can hardly be maintained as a general proposition, that the trustee thereby divests himself, either of his own original character of custodier qua trustee, or of the legul rights which the possession of ihat character confers upon him. Accordingly, in the present case, it is presumed that Alexander did not lose his agent's lien over the sugars, in consequence of his deposit of these sugars in the Littles' warehouse. But if not, does not that establish that he had net parted with the right of custody in any legal sense ? To constitute Lit- tle and Co. immediate custodiers for the Messrs. Smith, to the exclusion of Alexander, there must have been made out some privity of contract between these parties. But nothing of the kind appears in evidence. And in the absence of it, the only legitimate conclusion seems to be — 1- That primarily, and in a direct question with Messrs. Smith, Alexander alone was the true legal custodier; and, 2. That so entirely was the con- nexion between Alexander and the Littles a matter of mere sub-contract, that the latter could not have been compelled to make delivery either to Messrs. Smith, or to their order, without at the same time, having tne express and positive assent of Alexander. Accordingly, so little did the Messrs. Smith understand themselves to have anything to do with Little and Co., (if indeed they even knew that Alexander had placed the sugars in their warehouse^) that the only order of delivery which they granted was addressed exclusively to Alexander. It is asked, Did (hey or did they not intend this order of deliveiy to be OONTBACT 07 SALE. 429 available ? If they did, was not their granting of it an express assent on their part that intimation of the order to Alexander should he re- ceived and given effect to as executed delivery ? If they did not, how else was the purchaser, and still more the *bona fide sub-vendee r*(>oQ-] from that purchaser, to complete the contract? There is no evi- L J dence that the Messrs- Smith ever disclosed to Bowie and Co., much less to M'Ewen, Sons, and Co., that delivery was only to be att jined through the medium of Little and Co. If that had heen intended, then the order of delivery should have been addressed not to Alexander, but at once to Little and Co. The very circumstance that it was not so ad- dressed — and that the only party held out on the face of it as a party capable of giving delivery, was Alexander — is exclusive at all events against the Messrs. Smith, to fix Alexander as the sole recognized organ of delivery under this particular contract. And even if Alexander was not effectually constituted in the full legal sense, and with reference to this particular contr-ct, the only proper organ of delivery, it would seem sufficient, personali exceptione, to decide the case against the Messrs. Smith — that they at all events so held him out, and thereby were the cause of misleading M'Ewen, Sons, and Co. into reliance upon the fact, and of inducing them, in such reliance, to shape their proceedings as if notice to Alexander, and assent on his part, were all that was requisite. For, in such circumstances, where loss must arise to one of the parties, it is more consistent with sound justice, that the burden should fall on the party who has misled another — than that it should be cast upon that other who has done everything that the law would otherwise have required for his safety, but for the single circum- stance that he was so misled. Now, in its very lowest aspect, the order for delivery must, it is thought, be taken as implying a representation on the part of Messrs. Smith, that notice to Alexander was all that was requisite, and that upon such notice, Alexander had their full authority accordingly. If so, it seems to follow, on the principles so well brought out by the authorities already referred to, that notice to Alexander being actually made, and Alexander agreeing to hold the sugars there- after as the sugars of M'Ewen, Sons, and Co., the Messrs. Smith should be held barred from maintaining that Alexander had not sufficient au- thority. 3. There is another view of the case, which perhaps ought not to be dismissed as wholly without weight. If the delivery-order *was r#g3Q-| not intended by Messrs. Smith to constitute Mr. Alexander (as •- -' the party to whom it was addressed) the proper medium through which delivery was to be attained — it must have had some other purpose, and one too, still to be achieved through Mr. Alexander. The question there- fore arises. What else could that purpose have been ? It could only be, to confer upon Alexander, in a still more general sense than is, perhaps, implied in his being merely a middle-man, the character of their agent; and thus to authorize him, in their room to deal with the whole transaction precisely as they themselves, in the higher capacity of principals, would have been entitled to do. But, viewing the case in this aspect, can it be doubted, that if M'Ewen and Co. had gone to the Messrs. Smith them- Makoh, 1855.— 28 430 ROSS ON COMMERCIAL LAW. selves, and in their character of sub-purchasers from Bowie and Co., been recognised by the Smiths, in like manner as, in the actual case, they were recognised by Alexander, the effect must have been to exclude for ever after all dispute, on the part at least of the Smiths, as to their completed right to the sugars? And if so, must th3 Messrs. Smith not stand equally barred, where the act of recognition is the act, not of them- selves indeed, but (what in reality comes to the same thing) of their authorized and accredited agent in the matter ? At the final advising, the following opinions were delivered : — Lord President BoTLE. — This case is undoubtedly one of great nicety; and it is to be regretted that the record is not so satisfactory as could be wished, with reference to the proper establishment of the facts of the case. When it was formerly before us we were divided in opinion j and now that the opinions of the whole judges have been taken, the result is, that six of their Lordships are in favour of the interlocutor of the Lord Ordinary, while three entertain a different view. My own view of the case continues unchanged, and agrees with that taken by the majority of the consulted judges. Lord Mackenzie. — I agree in general in the opinion of the majority „„„.-. of the consulted judges, and therefore I do not consider *it neces- L J sary to go over the grounds of that opinion at any length. There is one observation, however, which I may make, relative to the effect of the original transmission of the goods to the bonded cellar, and the terms in which they were entered on the books of the keepers of that cellar. It seems to be held by the minority of the judges that the entry of the goods in name of "James Alexander, for J. and A. Smith," made Alexander, not the agent of Smith and Co.; but a sort of trustee in whom the property of the goods was vested. I cannot, however, take that view. It appears to me that the goods were put by Alexander in the warehouse as a mere agent. He entered them in his own name as for Smith and Co. ; and if he had utterly refused to take them out again, and Smith and Co. had come to the bonded cellar, and said that the goods were entered in Alexander's name, but in reality they were for them, and therefore they were entitled to receive them, it appears to me clear that the keepers of the bonded warehouse could not refuse to deli- ver. Or, suppose Smith and Co. had come to suspect Alexander's sol- vency or right dealing, could they not have lodged a caveat to prevent his taking the goods out of bond? I think they might have done so; and if so, ho was agent and nothing more. On that ground, therefore, I think, so far as the opinion of the minority rests on the opposite view, that it will not bear examination. There is another view, which may be considered important, and which is stated by some of the Judges — viz., that where a third party is intro- duced between the original vendor and vendee, all right to stop in tran- situ on the part of the original vendor is at an end. That appears to me to be quite inconsistent with the law. When a party takes a transmis- sion to an undelivered article, he is bound to take it, subject to all the rights and privileges of the original vendor, in whose possession it remains; and, among others, subject to his right of stoppage in transitu, CONTEAOT OF SALE. 431 according to the common rules of law. It is said that such a doctrine as this would be dangerous to commerce. I confess myself unable to see any danger in the matter ; on the contrary, I think tl«t trade would go on a great deal better in that view than on an opposite under- standing. *Lord FuLLERTON. — When the case was formerly before the r.^ooi Court, I delivered my opinion at some length in favour of the L -1 pursuers, M'Ewen and Co., and I still remain of that opinion, though of course with somewhat less confidence, in consequence of the adverse view taken by so considerable a majority of the Court. I do not put my opinion on the ground, that any effectual delivery of the sugars had been given to the pursuers, before their removal from the warehouse, by Alexander. The sugars wore in the custody of the warehouse-keeper, not of Alex- ander, and nothing short of some intimation to the actual custodiers could have changed the property. That seems to me the import of the various authorities referred to j and I see no sufficient ground for exclud- ing the operation of the principle, on the view taken by some of the consulted Judges, particularly Lord Cuninghame, of the particular cha- racter supposed to be held by Alexander in the transaction. If the sugars had been bonded in his name, and if the defenders, Smith and Co., had had only a personal claim against Alexander, to account for and deliver them, there might have been ground for holding that they were completely divested of that claim by the delivery-order, and the intimation of that delivery-order to Alexander; because a claim merely personal may most unquestionably be caused by an intimated assignation. But Smith and Co. had more than a personal claim against Alexander. The sugars were deposited by Alexander for "Smith and Co.," ostensibly the proprietors of the sugars. He was not the trustee, he was merely the agent or mandatory of Smith & Co., who, ex facit of the entry, were the proprietors, and might, as I think, have recalled their mandate when they thought proper. Neither do I think that the pursuers could have any doubt as to the character of Alexander, or as to the situation of the sugars. Both parties have renounced probation, so that there was no opportunity for further investigation. But in the first place, the pursuers themselves admit in their petition, that they were informed that the sugars were in a warehouse at Greenock j and, secondly, the delivery-order bears that the sugars were in bond ; and the pursuers nowhere allege that they consider Alexander to be a warehouse-keeper. *A11 that they say is, that from the delivery-note they were led i-,f.qqi to believe that the sugars were in the custody or under the con- L J trol of Alexander. The question, then, as to actual delivery, is just where it is put by the Lord Ordinary, whether the intimation of the delivery-note to Alex- ' ander did in law effect such delivery ? And on the question I agree with the Lord Ordinary, and the majority of the consulted Judges. I think the authorities go the length of establishing that a vendor who has granted an order for delivery, may stop that delivery, in the event of tha failure of the vendee, not only against the original vendee himself, but 432 ROSS ON COMMERCIAL LAW. even against a second vendee, to whom the first may have transferred the order. ^ But while I think the law is so far fixed, there may be eases in which the vendoi* loses that right. For instance, if the second vendee, after paying the price, goes to the first vendor, and on intimation of his acqui- sition, gets a new and direct order for delivery in his own favour, there could be no ground either in law or equity, I think, for holding that he could afterwards stop the delivery against the second vendee, because he had not got payment from the first. If in the present case, the pursuer had taken a new order for delivery from Smith and Co., or Alexander, or the warehouse-keeper, I think it clear that they must have been barred from afterwards retracting that order, on finding that they were not to get payment from Bowie and Co. Now, the special ground on which I am inclined to support the claim of the pursuers is, that through the intimation of Alexander, the defend- ers, Smith & Co., have put themselves in the same situation as if they had given a direct order for delivery to the pursuer. Taking the narrowest view of the character of Alexander, he was the mandatory of the defenders. He was the mandatory, through the instru- mentality of whom actual delivery was to be given. By the original delivery-note, he, as mandatory, was authorized and directed to give delivery to the order of Messrs. Bowie and Co., clearly expressing that it was transferable. Now it was transferred, and the order was intimated to Alexander by the pursuer, on the 28tli September, 1843, and the r*R^4.1 *''®^ order of "Delivered, or deliver to the order of Messrs. L -1 M'Ewen and Co.," granted by the clerk of Alexander; an act which' could require no new or special powers, because it was in exact conformity with the order of his mandants, Smith and Co. The ques- tion then arises, could Smith and Co., after their own mandatory had given the new order to the second vendee, in conformity with their own express order, retract and cancel that order, to the effect of stopping delivery, on the ground that the original vendee had become bankrupt? Is there any difference between such a case as this and the supposed one, of Smith and Co., giving directly the order for delivery to the pur- suer? I am disposed to answer those questions in the negative. I think the act of the mandatory, properly authorized, must be viewed as the act of the mandant. Whatever might have been the case before the intimation of the delivery-order to Alexander, it seems to me that after that inti- mation made, accepted of, and the new order given by Alexander, the second sale must be held to have been recognised by the vendors, through their mandatory, and consequently all right to stop delivery must be held to have been barred by that recognition. It is this specialty which distinguishes the present case from all those which have been cited to us ; but, looking at the principles on which those cases have been decided, I think it is a specialty which must secure effect. They fix the principle, that until actual delivery, or what is equivalent to delivery, in the case of goods in separate custody the intimation of the order to the actual custodier, the vendor may, on the CONTRACT OP SALE. 433 bankruptcy of the vendee, effectually stop the delivery, even against a second vendee, to whom the order has been transferred. And even this seems not to have been fixed without some considerable hesitation. And in many of the cases there are distinctions taken, and very strong dis- tinctions in equity, between the situation of the original and second vendee. But the condition of all these decisions seems to have been, that there was no recognition by the vendor of the second sale, no treaty between the vendor and the second vendee, and, consequently, no cir- cumstance attending the second sale, which could bar the vendor from exercising his right. But the moment that there *arises any con- p „„,., currence by the vendor, on the second sale, a new element is let L -I in, and one which, I think, is sufficient to exclude the principles on which all the decisions rested. I think it cannot well be doubted, that if the pursuers, after purchas- ing the sugars from Messrs. Bowie and Co., had gone directly to the defenders. Smith and Co., and got a new order from them either on Alexander or the keeper of the warehouse, the defenders would have been barred from exercising their right to stop ; and I see no reason for applying a different rule here, as the order of Alexander, the mandatory, exactly in conformity with his powers, and their own original order, was equivalent to one flowing directly from themselves. I am aware that this ground is a special one ; I do not think that the point arose in any of the cases which have been cited : but it appears to me to be the sound conclusion, from the facts of the case, as appear- ing from the evidence before us, and I do not think that it impeaches the authority of any of the decisions to which we have been referred. Lord Jeffrey Although my confidence in my original opinion must be shaken, by the fact of its being opposed to that entertained by a con- siderable majority of the Court, yet I must say that I still retain my old impression as to this case. I agree in the conclusion at which the mi- nority of the Court have arrived. I do not entirely proceed on the whole ground stated by that minority, inclining as I do more to the views expressed by Lord Ivory, than to those chiefly relied on by Lords Cun- inghame and Moncreiff; and am still more disposed to concur with Lord Fullerton, with reference to those narrower grounds on which his Lordship has rested his opinion. The question is as to the right of an original vendor to stop in transitu goods which he has directed to be delivered to the first vendee, in respect of the bankruptcy of that party during the currency of the credit. That is undoubtedly described by the whole institutional writers of England to be a comparatively recent equitable remedy. The equity is, that before payment of the price, and absolute transference of the property, the original vendor shall be entitled to attach the goods, and vindicate them from the creditors of the bankrupt vendee. The *equitable r:|:gQg-i views on which this right of stoppage in transitu is based, had L J plain reference to the original condition of the vendor and vendee. But whenever you come to cases of subsequent sales, where a second vendee appears after paying the price to the first one, who still remains due the price to the original vendor, I apprehend that the whole equitable con- 434 E08S ON OOMMERCIAI. LAW. siderations on which the original vendor's right of stoppage in tran- situ depended, are materially changed. In the circumstances of the second sale, the equitable considerations are entirely removed, and the condition of the party who contracted on the faith of the right he saw in the |)erson of the vendee, and of the order and complete power in his possession, and who in consequence of such evidence of ownership, paid the price, is to be considered with far more favour than that of the ori- ginal vendor, seeing that no blame or negligence could attach to him, and that there was no privity or connexion between him and the original vendor. And, accordingly, when cases first arose in England, as between the original vendor and the second vendee, who had paid the price, thp only ground on which that vendor was enabled successfully to maintain his right to stop in transitu, was, that he had no connexion or knowledge of that second transaction, and could not therefore be barred of his rights by the claims of a party with whom he never had any intercourse at all, and with whom he never dealt. I was moved by the deliverance of Mr. Justice Bayley, in the case of Hawes, 2 B. & C. 540: — "This," said his Lordship, " appears to nie very different from the ordinary case of vendor and vendee. In such cases, justice requires that the vendee shall not have the goods unless he pays the price. If he cannot pay the price, the vendor ought to have his goods back ; but if the question arises, not between the original vendor and original vendee, but between the original vendor and a purchaser from the vendee, that purchaser having paid the full price for the goods, what is the honesty, and justice and equity of the case ? Surely, that the vendee who has paid the price shall be entitled to the possession of the goods. I am of opinion that when Messrs. Raikes and Co. signed the order to transfer, weigh, and deliver, that, according to the settled course and usage of trade, enabled r*fiR7T ■'^^^^'■''y ^°"^ -^^11 *" s^'l ^^^ goods again. There *are many L J cases in which it has been held that if the first vendor does anything which can be considered as sanctioning the sale by his vendee, that destroys all right of the former to stop in transitu." The later institutional writers also recognise this as the ratio. Thus a recent writer on this subject. Cross on Lien, 382, delivers his opinion : " Though as between vendor and vendee, justice requires that the latter shall not have the goods purchased till the price be paid, yet as between the original vendor and a purchaser from that vendee, where the latter has paid the full price for the goods, it is equal justice that he shall have possession of the goods, if the first vendor have done anything which can be considered as sanctioning the sale by his vendee; for the right of stoppage in transitu is an equitable right, to be exercised only before the goods get actually into the possession of the vendee, and when the exercise of it'does not interfere with the rights of third persons." Now, without making any particular reference to the cases cited, what is the answer to those authorities, and to that law ? It is said that they turned upon the ground that the property was actually transferred, because the original vendor had received notice that he himself was the custodier of the goods for the second vendee, or, at all events, that the intimation of the second sale, was made to a person who was in the actual possession, CONTEAOT OF SALE. 435 and, therefore, that the judgment went upon the ground that the original vendor had himself made an actual constructive transference, and so -passed the property. Now I beg to refer to the authorities I have cited, as in direct contradiction to such a view. Does the opinion of Mr. Jus- tice Bayley, with whom all the judges of his Court concurred, support it ? Is it not said by him substantially, that you the first vendor, re- cognising the sale to the second vendee, are barred from exercising your right of stoppage in transitu? This question as to the power of the original vendor to stop the goods, has nothing to do with the property of them. Though the property may have been transferred in some of the cases referred to, the principle of which I have now been speaking, viz., that the original vendor has recognised the legal assignment of the goods to the second vendee, has no relation to the transference of the property. It happened in *some of those cases, that the intima- p^ooo-i tion of the second sale was given to persons who had the actual L -" custody of the goods; but that was not the ratio. It is said, that if anything is done by the vendor, which showed a connexion with the legal assignment to the vendee, then he has recognised the right of that party. That is the ground upon which the opposite opinion from mine is maintained. Now, in two of the cases, there could be no intimation to persons who had the actual custody. One of these cases is thus stated by Mr. Cross, 9 D. 391 : — "Thomson and Co. having sent goods from Ireland to London, to be sold by Eustace and Holland, their factors there, wrote to them to insure the goods, and sent them a bill of lading, not indorsed, but having the names Eustace and Holland on the back; and being applied to by them for an indorsement, answered, by letter, that if the bill of lading was not indorsed, it was a mistake, and they would send an indorsement. Upon this Eustace and Holland sold the goods to Bohem and Taylor; and it afterwards happening that they (Eustace and Holland) were unable to pay bills drawn upon them by Thompson and Co., on the general account, one Dick paid the bills for the honour of the drawers ; and knowing all their transactions, applied to them for an indorsement of the bill of lading, which they sent him, and thereupon Dick demanded the goods of the master of the ship, who refused to deliver them to hiip, but delivered them to the persons to whom Eustace and Holland had sold them. Upon this Dick brought an action against the master, but Lord Kenyon ruled that the plaintiffs had, under such circumstances, no right to take the goods out of the possession of the vendees of Eustace and Holland, inasmuch as the transfer had been made under proper and binding authority. Dick v. Lumsden, 4 Pcake's Cases, 187. The second case was one of the same kind, Davis v, Keynolds, 4 Campb. 267, where a person purchased certain goods, and desired them to be transmitted to him. Before their arrival, he sells and makes over a portion of them to the second vendee, who pays him the price. When they arrive, the original owner attempts to stop them ; and there was no intimation. The whole transference was thus only of an expectancy — a transference of goods not come to hand when the sale was effected. 436 ROSS ON COMMERCIAL LAW. *The decisions here did not proceed on the ground of the pro- L "''''J perty being transacted by constructive delivery. The Court held that the second vendee was entitled to the goods, as against the original vendor, solely on the ground of the recognition by the latter, or his accredited agents, of the second vendee. The application of the equitable principle on which these cases proceeded, to the one now before the Court, is a fortiori. The principle upon which the law is based is plain and obvious. When the original owner of the goods sells on credit, to a vendee whom he authorizes to take possession, trusting entirely to his credit, and if there be no person interposed between the original vendor and the ulii- mum remedium ; — if there be no third party brought into the transaction, then you can stop the goods as against the original vendee if he fail to pay the price. But on the other hand, if you are informed that the ven- dee has re-sold them to a second vendee, who has paid value; and if you, the original vendor, thereupon acknowledge the right of the second vendee to get the goods, and authorize him to take possession, then the original vendor ceases to have any connexion with the original vendee, except so far as the latter is liable to him for the price ; and from the date of the intimation, the second vendee can be alone recognized as the owner. The connexion between the original vendor and vendee is out off by the former's own act» — a new destination has been impressed upon the goods by him. They are no longer in transit to his debtor; they are to his knowledge and with his consent, in transit to the second vendee. Delivery has been ordered to him out and out. How, then, can the origi- nal vendor reach the goods through his debtor, or revive the latter's con- nexion with them, in right of whose obligations only has the original ven- dor a title to stop in transitu f The equitable principle is clearly this, that if the original vendor recognise the right of the second vendee, (whether cautiously or incautiously it is of no consequence,) and has helped him to get the goods, by granting a renewed delivery-order in his favour, then they are put into a new channel which the original vendor cannot reach. By the new order of delivery, the goods are out of the old r*6401 8"^°°^^ — ^^^^ ^'"^ ""^ ^ ^^'^ ^'"^ of rail. The ^equities are all clear L J on that ground; the equitable right of stoppage just passes over to the other side. The present case, iudeed seems to me to be a case a fortiori of the English decisions ; for in all these cases there was nothing feut a mere general order, and no express authority given to allow the second vendee to take possession. I hold, therefore, on the authority of these cases, that the right of stoppage was barred. There was an order, in the first place, to deliver to the party or his assignees ; that order was given by the pursuers to Bowie and Co. " or their order." It was inti- mated by the second vendee and adopted. Bowie and Co. sell the sugars, and assign the order to M'Ewen and Co. Smith and Co., or their agent, (which is the sam6 thing,) then distinctly recognise the assignees, and order delivery to be made to them. Here in fact there was, from the terms of the delivery-order, a right to assign from the first. Indeed I could not see how Alexander or his principals, Smith and Co., after grant- ing an order in such terms, could possibly have refused, on an assignation CONTRACT OF SALE. 437 of the delivery-order being intimated, to recognise the assignee, and to say " very well," as in Stoveld's Case, where such very slight recognition was held to bar the original vendor's right of stoppage. Entertaining these views, I do not think it necessary to enter into the question whether the property in the goods had passed; for here, I think, there was an assent by the original vendor to the second sale ; and in the two English cases I have mentioned, such assent was held sufficient to bar the original vendor's claim to stop the goods, although in those cases the property in the goods had not been transferred. I have no doubt that Alexander's assent to the second sale must be looked on in the same light as if it were the assent of Smith and Co. them- selves. The case seems to me to be just the same as if Smith and Co. had themselves bonded the sugars, and had received such intimation of the second sale. If they had received such intimation, they must have im- plemented their obligation to deliver, and have given M'Ewen and Co. the means of obtaining delivery. If they had done so — if they had them- selves written out the order for delivery to M'Ewen and Co. — which was [»641] in point of fact given by their agent Alexander, *is it maintain- able that they could still have stopped the goods in transitu ? Alexander was the person authorized by Smith and Co. to make delivery to Bowie and Co., or their assignees. Bowie and Co. assigned this order, and the assignation was intimated to, and intimation of it was acknowl- edged by, Alexander before Bowie and Co.'s bankruptcy, and before the order in favour of Bowie and Co. was sought to be recalled. On these grounds I must adhere to my former opinion, which, in its result, coincides with that at which the minority of your Lordships has arrived. The Court adhered, with additional expenses. March 20th, 1849. The advocators having appealed to the House of Lords, It was Ordered and Adjudged, " That the petition and appeal be dismissed, and that the interlocutor therein complained of be affirmed with costs." Lord Chancellor Cottenham. — The facts on which the question in this case arisesu^e very slibrt. Messrs. Smith and Company, the re- spondents, havirig imported a certain quantity of sugars, they were placed in a warehouse at Greenock, of which the keepers were Messrs. James Little and Company, and they were entered in their books in these words, " James Alexander, for J. and A. Smith." They remained in their custody until the time when the parties to whom Messrs. Smith and Company sold them, Messrs. Bowie and Company, had become insolvent. On the 26th of September, Messrs. Smith and Company wrote the following note to Mr. Alexander — "I have just heard of Bowie and Company's failure. Take immediate steps to secure our forty-two hogsheads of sugar, ex St. Mary, lately sold them, if they are still in the warehouse." Upon that, Mr. Alexander, who acted for Messrs. J. and A. Smith, caused the goods to be removed into another warehouse. So far, these facts of course would show no matter of dispute at all, the vendors not having parted with the .possession ; the possession, in 438 EOSS ON COMMEROIAIi LAW. fact, remaining as it was at the time of the sale. Before the possession r*R4.0T ^^^ parted with, or the custody altered, *upon the failure of the L -I vendees, they reinoved the goods to another warehouse. But then a question is raised, not on behalf of Messrs. Bowie and Company, to whom the goods were originally sold, but on behalf of the present appellants who bought from them. It appears that the sale to Messrs. Bowie and Company took place and was accompanied by a deli- very-note in these words — "Mr. James Alexander. Dear Sir, — ^You will please deliver to the order of Messrs. James Bowie and Company, the undernoted forty-two hogsheads of sugar, ex St. Mary, from Jamaica, in bond ;" upon which it does not appear that anything was done by Messrs. Bowie and Company, but they, as it is alleged, afterwards sold these sugars to the present appellants. The appellants, however, did nothing in order to obtain possession of the sugars or to transfer the custody into their own name, till the 25th of September. On that day they applied, not to Messrs. Little and Company, with whom the goods were in bond, but they went to the place of business of Mr. Alexander, and Mr. Alexander not being there, a clerk of his, John Adams, gave them the following memorandum : " Greenock, 25th of September, 1843. Deliver to the order of Messrs. William M'Ewen, Sons, and Company, of this date." That document is not addressed to anybody ; and it appears that the word " deliver" in it had been altered to the word " delivered." Whatever may have been the object of that altera- tion, and it could not have been any good one, it entirely failed, because it was nonsense to state that the goods were delivered. Delivered they were not, and delivered they could not be, for they were not, in fact, in the hands of Mr. Alexander, but in the hands of Messrs. Little and Company, the warehousemen. This order to deliver the goods, reading it in that way, was, in fact, all that Alexander could have done if he had been there to write it instead of his clerk. Being the agent for the ven-dors, and the goods being in the warehouse of Messrs. Little and Company, he could only have acted under the authority which he derived from the original delivery-note of the vendors, and all he could have done under it would have been to give directions to the warehouse- men to deliver the goods, and that is the purport and effect of the docu- ment which is signed by John Adams in the absence of Alexander. r*6431 *^° ^^^' ^^^^^^°^^) ^y Lords, it is very clear that at the 26th '■ -l of September, the date upon which the vendors caused these sugars to be removed to another warehouse, nothing had been done to change the possession ; Little and Company being the parties in posses- sion, the custodiers of the goods, and the sugar remaining in their ware- house as it had done on the day of the sale. There cannot, therefore, be any doubt, under those circumstances, of the title of the vendors when they heard of the failure and bankruptcy or insolvency of the vendees, to Sevoke the sale which they had made to them, the price not having been paid, and to deal with the sugars as their own. But then, this case, which is so clear as to the facts, is met by several points made on behalf of the sub-vendees. The first is, that though a delivery-note it is admitted does not pass the property as a bill of lading OONTRAOT OP SALE. 439 would Lave passed it, and although it has no effect in altering the title to the property, by being handed over and by being indorsed by one party to another, yet it is said the party giving the delivery-note is estopped from disputing it, and it is represented as a sort of fraud in him to give this note into the hands of the vendee and thereby enable him to impose upon some third party. But that is putting the same question in another form. If the party is to be estopped from disputing the title obtained under a delivery-note, that is giving to the delivery-note all the effect of a bill of lading. In fact, there is no such fraud. The effect of a delivery-note is perfectly well known in trade. It is perfectly well known that a title does not pass by a delivery-note, and it is per- fectly well known that it does pass by a bill of lading. There is, there- fore, no ground, as it appears to me, for that argument, which would, in fact, alter the nature of a delivery-note and convert it into a bill of lading. Then it is said that Mr. Alexander was the custodier of the goods, that he was the party in actual possession, and that the possession was altered by that note of the 25th of September. Now, up to the 25th of September, it is not pretended that any application was made either to Mr. Alexander or to Messrs. Little and Company. It is said that Mr. Alexander was the party in possession, and that the note operated as a transfer of the posse sion. In the first place, it is quite clear to my mind, *that Alexander was not in possession of the goods at r^f-aiA-i all. He was named in the books of Messrs. Little and Company L -I only as the agent of the vendors, " Alexander, for Smith and Company." He was, therefore, merely standing in their place, and not in the place of the warehouseman. "He was merely the intermediate agent thiough whom the vendors meant to exercise their rights and powers as the owners of these goods. Then another point was raised for the appellants. It was said that this note of the 25th of September had this sort of effect, — assuming that the delivery-note itself, given to the first vendee, had no operation in passing the^property, yet if the second vendee comes to the original vendor and obtains a new order, the vendor then cannot afterwards say he has 'not been paid by the first vendee, and so defeat the title of the second vendee, which he had, in fact, sanctioned, by making that second note, and dealing with him as a party entitled to the custody of the goods. My Lords, it appears to me that that is perfectly answered by this observation, namely — that with respect to the note of the 25th of September, supposing the clerk to have had the same authority as Mr. Alexander had, supposing Mr. Alexander himself had signed the note, Mr. Alexander had no authority whatever beyond that which the first note gave him. He had no authority to give a better title to the second vendee than the first delivery-note authorized him to give to the first vendee. And this note cannot be considered as a dealing between the vendors and the second vendee, because, in fact, there was no communi- cation between them. Therefore, being of opinion that the circumstances, as they stand, without going through the particular points made on behalf of the veu- 440 ROSS ON COMMERCIAL LAW. dee, clearly leave the title in the vendors ; and being also clearly of opinion that those subsequent transactions which are said to take this case out of the ordinary rule, and to give a title to the second vendee, have no operation for that purpose, I shall move your Lordships to affirm the interlocutors appealed from with costs. Lord Brougham. — My Lords, I have no doubt whatever in this case. . .-., I think a great deal of argument has been used in *the Court L J below which is utterly untenable, and that a great deal of ingenuity has been thrown away in endeavouring to perplex the case with matters which do not really belong to it, and that when you come to look at it on its own merits, and according to the facts as they stand, it is very simple and very clear. The case has been treated as if Alexander were the agent of Smith and Company, the original vendors, and having the same powers in refer- ence to these goods to all intents and purposes as they themselves had. There is no such fact in the caie. No authority whatever was ^ven to Alexander, except that which was contained in the first note of the 15th of August, authorizing him to deliver the goods to Bowie and Company, the first vendees. Alexander was not in custody of the goods, and he never possessed any authority to sell them, or deal with them in^ any way. With respect to the second delivery-note, and the alteration of the word " deliver" to " delivered," I entirely agree with my noble and learned friend, that nothing can possibly turn upon that alteration, for it is abso- lute nonsense to read it as it is so altered, because it is a notorious fact that the goods were never delivered out of the custody of Little and Com- pany in whose warehouse they were. As to the effect sought to be given to the delivery-note, as if it operated as a bill of lading, I also agree with my noble and learned friend, that no such effect is to be attributed to it. I, therefore, my Lords, consider this to be a case free from all reason- able doubts, and that it is only confused by connecting with it circum- stances which really should be kept apart, and by assuming matters to be in the case, which, in truth, are not there. I am clearly of opinion, with all the respect I entertain for the minority of the learned judges, that the conclusion which was come to by the Court was perfectly correct, and that the decision must be affirmed with costs. Lord Campbell. — My Lords, the simple question in this case is, Whe- ther Messrs. Smith and Company, the original vendors of these goods, retained their lien upon them or not? Several of the judges in the r*6461 ^°^^^ below have expatiated very largely *upon the doctrine of L -J stoppage m transitu. My Lords, that doctrine has no more bear- ing upon this case, than the doctrine of contingent remainders. One of the learnpd judges says that the doctrine of stoppage in transitu has been recently introduced, and ought not to be extended. My Lords, what is the doctrine of stoppage in transitu ? It is this; that when a vendor of goods has to send them to a vendee at another place, and has parted with his goods into the hands, of a captain of a vessel or a carrier, while they remain in the hands of the captain or carrier, and before they have CONTRACT OF SALE. 441 been delivered to the purchaser, upon the insolvency of the vendee they may be stopped by the vendor. This is a most equitable doctrine. It has been introduced into our commercial law, and I by no means would circumscriue it. But, my Lords, that has nothing in the world to do with this case, which is a pure question of whether the lien, which a ven- dor originally had, remains, or has been lost. Surely it has nothing to do with that doctrine, that the vendor has a lien upon them for the price when they are sold for ready money, and, in fact, remain in his posses- sion. That is as old as the doctrine of bargain and sale of personal pro- perty. Well then, my Lords, in this case Smith and Company wore in posses- sion of the goods at the time they were sold, and it is not a case in which they were sold to be delivered, at a distance, to the vendee. The vendee is in Glasgow, and the mode of dealing with the goods has been by trans- ferring them, simply by altering the name of the vendor into the name of the vendee. The goods, therefore, being in the possession of the vendor at the time of the sale, they remained in the possession of the vendor, as it is ad- mitted, for some time after the sale. There was no delivery to the ven- dee. The price has not been paid, neither has the money been handed over, nor a bill of exchange given for the amount. Then how has the lien been lost ? It is first said by the delivery-order. But my noble and learned friend, to my mind, has most clearly and satisfactorily established that that could not be the case, for the delivery-order did not at all change the possession of the goods. But then it is said that the delivery-order, with the subsequent sale, and the payment of the price of the goods by the second vendee, is to be tantamount to a delivery. But, my *Lords, there is no case r^-oAir-i in which that has ever been done. We know that by the Law L J Merchant, if a bill of lading is given, and that bill of lading is indorsed for a valuable consideration, it takes away the right of the vendor ; but there has been no such decision with regard to the effect of a delivery- note. It is not alleged that such is the usage of the merchants at Glas- gow, and it would be the strangest dictum to say that such is the usage. There is no reason to suppose that the delivery-order has any effect at all, further than as giving authority upon the payment of the price to the person in whose possession the goods are to deliver them. As to the saying that it is an estoppel, which prevents the vendor from exercising his lien, that is merely a circuitous way of saying that it is tantamount to a bill of lading ; but upon what ground can it be so ? If it could have been proved that such was the custom, then it might have been likened to a bill of lading. If it could have been proved that the inter- mediate price had been paid, then it might have been said that this was a fraud ; but we have no reason to believe that this delivery-order oper- ated otherwise than merely as an authority to the warehouseman in whose custody the goods were, to transfer them to the name of the pur- chaser upon the price being paid. Then the delivery- order, and the subsequent purchase and payment of the purchase-money, clearly, it appears to me, do not take away the lien 442 EOSS ON OOMMEECIAL LAW. of the original vendor. It is said that the possession has actually been given. Now, if Alexander had been the custodier of the goods, there would have been a foundation for that argument. Alexander was the agent of Messrs. Smith and Company, the vendors; but for what was he their agent? He was their agent to land and sell the goods. He was a broker. He was not a warehouse-keeper. The goods were not in his possession. The goods were in the possession of the keeper of this ware- house, not of Alexander, and therefore the foundation upon which this argunient of the possession being transferred, as if Alexander were the custodier, he appearing only to have been the broker, and not the ware- houseman, is based , entirely falls. My Lords, it is said that this case is one of great hardship. But we r*R/lRT ™'^^'' *'*^^ ^^''® ^^^^ ^^"^"^ cases do not make bad law j *but I do L J not see that it is a case of such extreme hardship. It appears to me that M'E wen and Company were guilty of very considerable negligence. When they bought the goods, they knew that they had been the property of Smith and Company, and they ought to have inquired whether the purchase-money had been paid or not. It is quite clear that the delivery- order was no guarantee to them that the price had been paid, and they ought either to have inquired before they entered into the bargain, or at all events before they themselves parted with their own money, whether the price had been paid by Messrs. Bowie and Company, or they should im- mediately have seen that the transfer was made into their own names. They remain, however, entirely supine till the failure of Messrs. Bowie and Company. This decision of your Lordships, if your Lordships shall adopt the suggestion of my noble and learned friend, will not embarrass commerce in the slightest degree. It will only throw upon a person who buys goods under the circumstances of M'Ewen and Company, the necessity of being more cautious in their dealings. Therefore I fully concur with my noble and learned friends. Ordered and Adjudged, "That the petition and appeal be dismissed this House, and that the interlocutor therein complained of be affirmed, with costs." IL — MELROSE v. HASTIE. Feb. 4, 1850.— S. 12 D. 665. On 15th June, 1843, James Bowie i and Company purchased from Eobert Hastie and Company, 1533 bags of sugar, then lyin^ in a bonded warehouse at G-reenock, belonging to Alan Ker and Company. The sugars were entered in Ker's books as belonging to Duncan Ferguson and Company of Grreenock, who were the importing agents of Hastie and Company. v Bowie and Company obtained from Hastie and Company a delivery- order in the following terms:— « Glasgow, 15th June, 1843, Messrs. CONTRACT OP SALE. 443 Duncan Ferguson and Company, Greenoct. — *Gentlemen, — You r^j-pjo-i will please deliver to the order of Messrs. James Bowie and Com- L -■ pany, 1526 bags (seven damaged, making in all 1533 bags) sugar, ex Eliza Lcishman, from Mauritius, and undfr stated," On 16th June, Bowie and Company sold 761 bags to Andrew Melrose and Company, and got a separate order for delivery of these bags in the following terms : — "Glasgow, 15th June, 1843 Messrs. Duncan Ferguson and Com- pany. — Gentlemen, — Please deliver in bond to the order of Messrs. James Bowie and Company, the under noted 761 bags Mauritius sugar, vx Eliza Leishman c. Mauritius." Indorsed — " Deliver to the order of Messrs. Andrew Melrose and Company, Greenock. (Signed) James Bowie and Company." Melrose and Company immediately delivered this order to D. Fergu- son and Company, but they did not intimate it to Alan Ker and Com- pany, the keepers of the bonded warehouse. Their agent in Greenock obtained from Ker and Company delivery of 170 bags. The rest of the sugar remained iu the warehouse. Bowie and Company were sequestrated in September, 1843, at whitih period they were indebted to Hastie and Company upwards of £4000. Hastie and Company claimed a right to retain the sugar still remaining in the bonded warehouse, as security for their debt. Melrose and Company raised the present action of damages against Hastie and Company. The following issues were sent to trial : — « It being admitted, that on or about 15th June, 1843, the defenders, Kobert Hastie and Company, sold to James Bowie and Company, mer- chants in Glasgow, 761 bags of sugar, or thereby — " And it being admitted, that on or about the same date, the said James Bowie and Company sold to the pursuers the said 761 bags of sugar, or thereby — '< Whether the defenders wrongfully prevented or obstructed the pur- suers in removing 591 bags of the said sugars, or any part thereof, from the bonded warehouse in which they were deposited, to the loss, injury, and damage of the pursuers ? "Damages laid at £100." It was proved by the evidence of Bowie and of his clerks, r»gcA-| •that the sugars sold to Melrose and Company formed part of L J the 1533 bags sold by Hastie and Company to Bowie and Company on 15th June ; that the price had been paid to Bowie and Company by the pursuers ; that Bowie and Company had, on the 17th June, purchased an additional quantity of sugar, to the value of £5945, from Hastie and Company; that, on 21st June, Bowie and Company paid Hastie and Company £1000, and, on 14th July, they paid a further sum of £2456, making together the price of the sugar sold on 15th June; that that transaction was then entered in their books as a settled transaction, and therefore the payments made by them applied entirely to it, and not to the subsequent purchase of l7th June. Alan Ker, the keeper of the bonded warehouse, deponed that the sugars were entered in the warehouse-books in name of D. Ferguson and Company; that the rent was charged against that firm; that it was the 444 BOSS ON OOMMERCIAI. LAW. custom of trade to charge warehouse-rent against the purchaser, if the sugar remained longer than a month after the sale; that he knew from private knowledge that the sugar belonged to Hastie and Company ; that it was not the custom of trade to make intimation of sales to the keeper of the bonded warehouse, bdt to the importing agent ; that he never re- collected any sugars being transferred in his books to a purchaser, pre- vious to their removal. The clerk of George Seaton, the agent for Melrose and Company at Greenock, deponed that he had handed over the delivery note to D. Fer- guson and Company, but he had not intimated it to Alan Ker and Com- pany ; that the original order in favour of the sellei was never shown to the warehouse-keeper, who acted on the faith of the Custom-house lockers' notes showing the payment of the duties, indorsed by the importing agent; that Bowie and Company were eiitered in Ferguson's books as purchasers of the sugars, and paid him warehouse-rent for them. It was also proved by other witnesses, that it was not the custom of trade to intimate the delivery-order to any other party than the import- ing agent. Lord CuNiNGHAME charged the Jury, that, from the nature of the case, and the course the proof had taken, there were two questions for their consideration : — r*fi'in *^' ^^^*^®'' Bowie and Company had paid the defenders the L -I price of that lot or parcel of sugars, of (ffhieh the bags in dispute formed a part ? — and II. Whether the pursuers, prior to the bankruptcy of Bowie and Company, had got sjich delivery of the sugars as barred the defenders from reclaiming them, and stopping them in transitu ? The pursuers' success on either of these points was sufficient to entitle them to a verdict. He was inclined to think that the ifaots established in this case, by the pursuers, — more especially when not obviated by any proof on the other side, — were sufficient to support the pursuers' claim on both points. I. As to the allegation that the defenders had received payment of the price, it was for the Jury to consider how far that fact was not proved by the following facts established in evidence, — (1.) That the 761 bags resold to the pursuers were part of the 1553 bags sold by the defenders to Bowie and Company. That fact is proved and admitted ; — (2.) The entries in the books of Bowie and Company deserve conside- ration, as the price of the 1533 bags was settled by a payment in cash to Bowie and Company, of £1000, on 21st June, and another payment, on 15ih July, of £2456, 2s. (3.) It deserves inquiry, whether the application of that payment to the 1533 bags is not proved by the evidence of Mr. Bowie and his clerks and by the remarkable fact that the amount of the said payment exactly corresponds with the balance of the price of the first parcel of 1533 bags and interest thereon, for the precise period, which elapsed between the day when the price of the first parcel should have been settled, and the 15th of July, when the whole price was paid and adjusted. (4.) It is to be considered whether the Account No. 28 of process. CONTRACT or SALE. 445 under the hand of Mr. Sharpe, the defenders' broker, does not prove that the purchases by Bowie and Company from the defenders were separately treated. That is a separate document, relative to the second sale of 3000 bags alone. It is proved to be holograph of Sharpe — and Bowie swears that it was rendered on 8th August, 1843. It was for the jury to say if this is not equivalent to an admission by the broker that the previous parcel was paid. (5.) No counter evidence has been produced by the defenders r:|,f>Koi to show on what footing, or on what account, they received the L J payments of 21st June and 15th July, founded on by the pursuers. (6.) The payment of the price by Melrose and Company to Bowie and Company, of the 761 bags purchased by them, seems quite clear. The present case is not ruled by the case of Mein v. Bogle and Com- pany (6 8. & D. 360) referred to by the defenders. That was a mere case of retention as between the original vendor and vendee, for an un- disputed debt ; whereas the present was alleged to be a case of stoppage in transitu asserted against a third party, over goods which the second seller had paid for. There is no example of a stoppage in transitu being sustained in such a case. If the evidence as to the payment to the defenders by Bowie and Com- pany of the price of the 1533 bags be deemed sufficient, it would be con- clusive of the case. But, — II. Independent of the state of the fact on the preceding point, the defenders gave Bowie and Company an unlimited order of delivery on Ferguson and Company, the registered owners or importers, in the warehouse books, relative to the 761 bags, and if that was onerously transferred to the pursuers for value, and acted on by the defenders' agent, it will be the duty of the jury to consider the circumstances, and if satis- fied with the evidence, to find for the pursuers, as it is apprehended that the order of delivery could not be revocable by the defenders. On this point, the facts material to be attended to in ascertaining the legal rights of the parties are these : — " (1.) The original mandate of the defenders relative to these sugars, was in unqualified and assignable terms. It was addressed to the regis- tered holders, and desired them to deliver the bags to the order of Messrs. James Bowie and Company. " (2.) Bowie and Company annexed theiP'^transference at the bottom of the original order. "(3.) That order was addressed to Ferguson and Company, and to them alone, as they alone held the sugars. These were not entered in Ferguson's name as agent for Hastie and Company, but as sole im- porters. *" (4.) The order was forthwith entrusted by Seaton, as pur- r*g53-i sners' agent, to Ferguson and Company, and left with them. L J This proved by Beaton's clerk, M'AUister, who also proved that Seaton received the order, dated 2lBt June, from Melrose and Company, and took it to Ferguson and Company, and left it with them. « (5.) This instruction to the agent of the defenders, was equivalent March, 1855.— 29 446. BOSS ON COMMERCIAL LAW. to an intimation by the purchasers, and it must be presumed that the transfer was known to them through that gentleman. But they never objected to it. On the contrary, they acquiesced in it for above three months, during all which time Bowie and Company were solve;it, and it was proved that the defenders afterwards gave them additional credit by sales of other goods to them, even in August, 1843. " (6.) The order of delivery to the pursuers after intimation to Fer- guson and Company, was acted on by these parties, and delivery given to the pursuers' agent of 170 bags out of 761, i. e. about one-fourth of the whole, and it is proved that on the portions of those sugars on which warehouse rent had become due, according to the custom of the ware- house, rent was charged against, and paid by the pursuers to the defend- ers' agent. " The present case differs from the late precedent of M'Ewen and Company v. Smith, in the most essential points; (1) in so far as the sugars were registered in Ferguson and Company's name alone; (2) in so far as the defenders acquiesced for two months in the intimation to Ferguson and Company of the pursuers' rights ; and (3) in so far as the defenders' order relative to the 761 bags was acted on, and as delivery was given of a large part of the goods in pursuance of the original order of the defenders, and warehouse rent charged against the pursuers. " These important specialties present the clearest distinctions between the case of M'Ewen and Company v. Smith, and the present. "In the present instance, if Ferguson and Company had counter claims of their own against Hastie and Company, which would have made it their interest to prevent the latter from getting the goods, they would certainly have retained the goods in the meantime in security of their own claims. But they were equally entitled and bound to do so rifCKA-i '^'^ security of a third *party, whose right by authority of Hastie L J and Company was intimated to them, and acquiesced in for up- wards of three months before the bankruptcy. " In all these circumstances, his Lordship gave it as his opinion, in point of law, that the pursuers were wrongously obstructed by the de- fenders when they proposed to remove the sugars now in dispute to their own premises." The defenders excepted to this charge, generally ; and, in particular, " (1.) In so far as his Lordship did not direct the jury, in point of law, that there was no legal evidence of the price of the goods sold on the 15th of June, 1843, having been fully paid, and of the account of the price thereof having been separately and finally settled ; "(2.) In so far as his Lordship directed the jury, in point of law, that the payment of the price of the 1533 bags of sugars, if proved, is in law conclusive of the case against- the defenders ; "(3.) In so far as his Lordship did not direct the jury, in point of law, that assuming that the whole price of the sugars sold on the 15th June was paid, the defenders had notwithstanding a right of retention in security of the balance remaining unpaid of the price of the sugars sold to the same purchaser on the 17th June. « (4.) In so far as his Lordship did not direct the jury, in point of OONTRAOT OP SALE. 447 law, that the granting indorsation and intimation of the delivery-order of 15th June, were not sufficient in law to operate constructive delivery, or any such transference of right or change of property of the sugars in dispute as to bar the right of retention pleaded by the defenders." The jury found a verdict for the pursuers, damages JIOO. The advising of the bill of exceptions was delayed until the judgment of the House of Lords, in the case of M1 P'^"'"^? *''^^ goods in the hands of the carrier or shipmaster for L -J the purpose of transmission. But delivery is not taken by the pur- chaser till the goods reach him. During the intervention of that period, the goods are physically, as well as legally, in transitu ; and on certain events the seller is entitled to retract his own act, which otherwise would OONTBAOI OF SALE. 473 be beyond the reach of recall, and to stop the goods in their way to the sel- ler. Those events are, the bankruptcy or declared insolvency of the'eeller, combined with the non-payment of the price. In those circumstances he gets a relief to which he otherwise has no access. Now, in other cases such as the present, where the goods are at a distance from, and not in the possession of the seller, the act of the seller in giving delivery, consists in the granting of the delivery-note. When the goods are in bond, and he does not choose to advance the duties, that is the only way in which he can deal with them as a market- able article. The granting of the delivery-note, then, is just as indis- pensably and appropriately the seller's act for transferring the goods, in that case, as the packing the goods on the cart, or shipping them, is in the former, when the seller and buyer are at a distance from each other. The taking delivery is in both ca^es something different ; and in the former that depends on the purchaser intimating the delivery-note to the custodier of the goods. During the intervening period, the goods may be said to, be in transitu ; not that they are physically in a state of movement from the vendor to the vendee, but because there is a time between the -act of giving delivery by the vendor, and the taking deli- very by the vendee, exactly analogous to that which exists in the cases of actual stoppage. The goods are no doubt stationary, but a period elapses, in the passing of the full title of property from the one party to the other. Now, it has been found in the case of M'Ewen, and others resembling it, that as, in the one case, the vendor may stop the goods in security of the price, so in the other he may recall the delivery-note. But I see no case in which it has been found that he has any higher right in the one case than in the other, or that he can recall the delivery-note, except under the conditions applicable to the other — viz., the bankruptcy or insolvency of the vendee, and the non-payment of the price. I think it *fairly deducible from the judgment of the House of Lords in r^nqq-i the case M'Ewen, that both of those conditions were held indis- L J pensable. In all the opinions those two circumstances are coupled together. I think the fair inference is, that if either the one or the other had been awanting, the judgment would not have been pronounced. And really it would be diflSoult to see any ground for the distinction. The granting of the delivery-note, bearing to be transferable, and actually paid for and transferred for value, is surely not an act sua natura revo- cable, and leaving a vendor as unfettered as if it never had been granted. And yet that is implied in the argument for the defenders, when they represent this as a case of mere retention, — as if the sugar had been all the while lying in the defenders' warehouse, and they had refused to deliver it. So far from this, they had done their part in the act of deli- very, the only part in their power, by granting the delivery-note ; and unless they can make out that a delivery-note is in its nature revocable at their discretion, the analogy between the present case, and a proper stoppage in transitu, is complete. Because, on any other view, their act of recalling it is just as much beyond the usual power of a vendor, as the removing of the goods from the cart or ship on which they may have 474 BOSS ON COMMEBCIAL LAW. been placed. To support either the one or the other, there must concur, the offnditions on which alone the equitable remedy is allowed the vendor of retracting his own act, viz., the bankruptcy of the vendee, and the non-payment of the price. But I think it clear that a delivery-note is not, by the law of Soot- land, revocable in its nature. I can see no ground whatever, either in the practice of business or in common sense, or in law, for such a pro- position. How can it be said that a party who closes a transaction by glutting payment and granting a delivery-note, which is from its terms transferable, and which he knows will in all probability be transferred ib the course of trade, still retains the right of recalling that delivery- note at his pleasure ? The answer, in ordinary fa,ir dealing, is obvious enough ; but I think, in law it is equally conclusive. However you design a delivery-note of the kind — whether you term it an assignation r*fiQiT °^ ^^^ right to demand delivery from the custodier, *or to L J demand from the custodier that he shall hold the custody for the behoof of the vendee, or a mere mandate — it is not sua natura revoca- ble at the discretion of the grantor. Even viewed as a mandate, still by being placed in the hands of the vendee, it becomes a mandate, not only to the custodier to give, but to the vendee to take delivery; it is a man- date for behoof of the mandatory alone, and when the price is paid, has been onerously acquired. Now, a mandate of that kind is, by our law, no longer at the discre- tion of the original mandant, and is irrevocable. Of this we have the best and most ordinary instance in the case of precepts of sasine, which, from their form, were understood to be so entirely mandates, as to require a special statute to preserve them from falling by the death of the grantor. But they certainly were never understood to be revocable for the reason, as assigned by our authorities, that they are mandates, "not for behoof of the grantor himself, but of the grantee, who has the sole interest in the execution of them." — (Ersk, 3, 3, 42.) And the same reason is assigned for supporting mandates contained in clauses of regis- tration, as they are " granted solely gratia mandatorii, and so not revo- cable by the grantor." It is true that in both cases the party who takes the deed without putting it immediately into execution, relies to a certain extent on the good faith of the other party. A grantor of a precept of sasine, as well as a grantor of a delivery-note, may commit a fraud by granting similar deeds to other parties, who may, by priority of execution, if pro- tected by bona fides on their part, exclude the first grantee. But that is a very different thing from holding such documents to be revocable, which is the proposition necessary to support the defenders' case. And I am sure, if there is no law in support of that proposition, there is as little equity. That, I think, was stretched far enough when the vendor, after granting a delivery-note bearing to be transferable, and likely, in the ordinary course of business, to be transferred, was found entitled, so long as the price remained unpaid to him, to intercept the possession of a party who had onerously acquired a transference of the note. But in the extended application of this to the case where the price has been OONTBAOI OF BALE. 475 paid both by the first vendee to the vendor, and by a second r»oQ'-i *vendee to the first, it is clear to me that the equity is all on f- -> the one side, being all against the original vendor, and in favour of the other party. And I cannot help thinking, that this extension would operate most materially in shaking the safety of commercial transactions hitherto con- sidered as perfectly secure. We all know the extent of these transac- tions in regard to goods in bond. And we see, in this very case, the reasons which frequently exist, for parties continuing to deal, without intimation to the warehouse-keeper, or payment of the duties. Accord- ing to the evidence of Mr. Bowie, — "We afterwards got orders for deli- very of portions of the sugar as wo required them, the object being to save the payment of a commission to an agent at Greenock." The same reason probably weighed with the pursuers, who made no intimation at the warehouse till such intimation was required for the particular parcels which they had resold. But, in the meantime, the price had been paid by Bowie and Com- pany, who of course had got receipts for the prices. Now, can it be said that any person seeing the delivery -note, and seeing the receipt, or otherwise knowing that the price had been paid by the first vendee, would have hesitated to act on the perfect conviction thus afforded that his purchase was safe ? According to the opinions expressed in the judgment of the House of Lords in the case of M'Ewen, it was absolutely safd. Yet, according to the argument of the defenders, and the ruling excepted to, all this is to be disregarded; and if the defenders chose to create a new debt by entering into new transactions with the first vendee, the delivery-note is to be recalled, that they may have-, at the expense of the parties dealing on the strength of it, a secu- rity for a debt of which no third party could know the existence. On these grounds I think the exception ought to be sustained. The direction, and the law involved in it, does seem to me to be contrary to principle — to be adverse to the ground of decision in the case of M'Ewen — and to bo entirely unsupported by any other authority in the practice, either of our Courts or those of England, in this depart- ment of law. Lord MoNOREii'i'. — I regret that in present circumstances I r«f.qg-i *am unable to deliver so full an opinion on this case as I could •- -• have wished. I consider it as a very important case; and having attended carefully to all the arguments in the hearing, I have a very clear opinion that, in the circumstances as they were at last ascertained, Hastie and Company are entitled to the retention which they claim over the sugars, which are still legally in their possession, until they receive payment of the general balance dae to them. It is rather unfortunate that Hastie and Company should have been led, even down to the day of trial, to deny on the record that the first parcel of sugars, of which those in question formed a part, had been fully paid for by Bowie and Company before the bankruptcy of these parties. If their information was such that they could not, as advised, safely make the admission, it may have been very natural for them to 476 BOSS ON COMMEROIAL LAW. put the pursuers to proof of the fact — as, if such payment had not been made, it would have strengthened their plea of retention. But really that ought not, in my opinion, to affect the question as it now stands, and ought to be thrown out of the case ; for the true plea now is, not that they have a right of retention of particular sugars because the price of those sugars was not paid, but that they have a right to retain them because there was a general balance due to them independent of that price. It was formerly supposed that they had lost their right of retention, because an order of delivery addressed to the keepers of the bonded warehouse had been given out, which order of delivery, it was said, was sufficient to transfer the property, or at least the legal possession of the sugars, to the parties, Melrose and Company, who now hold it. The judgment of the House of Lords has settled the point, that this plea was altogether erroneous, and that the order of delivery had no such effect. The state of the case therefore is, that though the price of these par- ticular sugars had been paid, they remained undelivered to the whole extent to which retention of them is now pleaded. Tet, if I did not mistake altogether the result of the argument main- tained by the Dean of Faculty for Melrose and Company, it came at last r*fiQ71 *" ^^^^> ^^^ though the payment of the price of *the particular L J sugars would not by itself be sufficient to bar the right of retun- tion here maintained, yet that fact, combined with the order of delivery passed to Melrose and Company, must be sufficient to establish the point. But this, if it has any solid meaning, is in fact to maintain that the order of delivery had legally the effect of transferring the property, or at least the legal possession of the goods, contrary to the judgment of the House of Lords. The question of delivery or not is one question which forms an im- portant element in the more general question as to the right of retention for payment of a general balance due by Bowie and Company to Hastie and Company. But I apprehend that we must take that question of delivery or not to stand by itself — not affected by any question as to the payment or non-payment of the price of the sugars now sought to be re- tained. But upon the facts proved, and the rule given to us by the judg- ment of the House of Lords, I think it impossible for us now to doubt that no delivery, either actual or constructive, had taken place, and then the question as to the right of retention is presented in a very pure form. It is no case of lien that is maintained by Hastie and Company, but a case of retention under the existing law of Scotland. The nature of this right of retention is explained very clearly in a few sentences in Mr. Erskine's work. It arises in various circumstances, and is quite sepa- rate and distint from any right of compensation, and it is recognised in many cases precisely where compensation cannot properly be pleaded. The right, in the plain sense and equity of it, consists simply in this, that when one man has goods in his possession which he is bound to de- liver to another, but that other is debtor to him, whether for money or goods, he cannot demand delivery of the particular goods in the posses- OONTEAOT or SALE. 477 sion of the first, until he shall pay the debt due by him to that party. It is not necessary that these counter obligations should arise out of the same contract. If the obligations exist, it is a matter of plain equity that the one cannot demand delivery until he shall pay the debt due by him to the other, who holds the goods. It is a right of retention not merely for payment of the price of the|particular goods, but for payment of any general balance existing *between the parties at the time [-«oqQ-i when the demand of delivery is made. >- -I I have looked into all the authorities referred to, and it appears to me that though great light is to be obtained on various points of the discus- sion from other cases, the case which bears directly on the jfroper ques- tion in this case is that of Mein v. Bogle, in which, although there may be some diflFerence in facts not necessary to the judgment, I can find no- thing to distinguish it in principle from the present case, as soon as the proper question of principle is clearly understood. The judgment of the learned assessor Mr. Reddie sets that case on its proj^er. grounds, his judgment was affirmed by Lord Corehouse, and ultimately by the Court. I cannot form a difierent opinion in present case, and therefore I am of opinion that the exception should be disallowed, and judgment given in favour of the right of retention claimed by Hastie and Company. Lord CooKBUEN The arguments in this question were involved (perhaps unavoidably) in a great mass of details ; but the point at issue is very simple, and the principle on which it depends, very cle'ar. I am not moved either way by the authorities quoted to us from the law of England; because, in the first place, I am not satisfied that we understand them ; and, in the second place, because the law of that country is undoubtedly materially different from that of Scotland ; and if the one must be made to yield to the other, it seems to me, that if fairness and sense be desirable, the concession ought to proceed from the south. If a person buys goods and pays for them, but does n^t get delivery, and the seller becomes bankrupt, J understand it to be certain and ad- mitted, that, by the law of Scotland the undelivered goods form a part of the bankrupt's estate, and that the purchaser, though he had paid the price, is only a creditor. This fact, and the principle it proceeds on, goes a considerable way on the present occasion, because it implies that the fact of payment of the price does not transfer the property to the pur- chaser ; the goods, though paid for, remain in the possession of the seller, and consequently belong to his creditors. Therefore the present r^ggg-i *case is not decided in favour of the pursuers, merely because L J they had made payment. It still remains an indisputable fact, that there was no delivery either actual or constructive. The possession thus remaining with the seller, all the consequences of possession follow ; one of these is, that the vendee being in debt to the vendor no matter on what transactions— and being, as his bankruptcy attests, incapable of paying his debt, is not entitled to go to the vendor and say,—" I admit that I cannot pay my general debt to you, but I March, 1855.— 31 478 ROSS ON COMMERCIAL LAW. insist on your giving up to me certain property that you have of mine." The law, in its equity, entitles the vendor to answer, — " I will not give you your goods, so long as you withhold from me my money." Now, what is it that defeats this answer in the present case ? Merely, as I understand, that the seller gave a written delivery-order to the buyer and to his assignee — and that this was used in a particular manner. The mere giving of such an order is certainly insufficient. Every or- dinary seller virtually gives it as soon as he receives the price. The transaction always implies, rebus integris, that the purchaser, after pay- ing, may take away the thing sold — whether it be a permission, or an order witten or verbal, is immaterial. A man who goes into a shop and buys, and pays for an article, has surely, but always rebus integris, a right to take it away ; or is possessed of a virtual order by the seller, to his people, to give it to him. But certainly every buyer who, because he had paid, has authority to demand delivery whether given to him. by the seller or by the law, is not; purely from this cireumstanee, entitled to insist on carrying the goods off, after his bankruptcy makes it impossible for him to pay other debts which he owes the seller. The seller is en- titled to retain the goods still in his possession as owner, till the buyer be in a condition to perform his full duty to the party he asks to cede possession. If, rebus integris delivery had been demanded under the virtual or actual delivery-note, the seller could not found on any failure on his part to obey that note. He could not found on his own illegal refusal. But r*700T ^®'^® ^^ delivery-note was *never presented to the keeper of the L -I store where the sugars were. It was only exhibited to parties who acted as agents for the sellers, which had no more effect than if it ' had been exhibited to the sellers themselves. There was nothing done to destroy the seller's possession, or to make it illegal, and therefore there was nothing to impair their right of retention, which was a consequence of possession. Even if I had less confidence in these views than I have, I would feel it my duty to adhere to any decision where this question was considered and settled. I think Mein v. Bogle did settle this identical question ; and, independently of all general reasoning, I am for standing upon that judgment. ' Lord CuNiNGHAME. — After the admitted payment of the price by Mel- rose and Company, the sub-vendees, to Bowie and Company, and by the latter to Hastie and Company at a time when all parties were solvent, and continued so for a tract of time afterwards, there were no termini habiles for any claim of lien or retention by the defenders over the sugar in dispute, in a question with a third party and onerous purchaser. According to the law of Scotland, and, it is believed, of every commercial country, such a lien in transactions of sale is competent only for the price of the goods sold • and when that is paid, all claim of retention ceases — at least against an onerous third party, who has dealt with the first vendee. Upon this point it is sufficient to refer to Mr. Erskine, (B. iii. t. 3, § 7,) who observes, that a seller is not in mora " if the not-delivery by the seller be owing to the purchaser declining to pay the price, for the seller may lawfully retain the OONTRAOT OF SALE. 479 thing sold, as a pledge, or in security of the price." In like manner Mr. Bell, in the last edition of his Commentaries, i. 212, lays this down — " Where the actual possession continues with the seller; there is stoppage for the price on the buyer's insolvency." The authorities in the law of England, and of other commercial coun- tries, are, it is believed, concurrent to the same effect ; but it would be suf&cient to refer to the Treatise of the latest English writer on Lien, (Mr. Cross,) who states — " It is obvious that occasions must sometimes arise, before the goods sold have been despatched out of the vendor's possession, when the remedy *availableis peculiarly that of lien, r.iyrv-i-i Notwithstanding a previous sale, a special property in the articles L J Bold continues in the vendor until such time as the purchaser pays or tenders the price agreed upon." (Cross, 322.) Mr. Whitaker, the im- mediately preceding writer on lien, lays down the law still more pre- cisely in his Treatise, to which it is sufficient to refer. The defenders, passing from the technical doctrine of lien, found on a peculiar right of retention said to be competent to all creditors by the law of Scotland, to retain the property of their debtors in the creditor's custody, on the bankruptcy of the debtors, in security of their general balance. But that doctrine, which admits of many limitations, is inap- plicable here. The articles retained by the defenders on the bankruptcy of Bowie and Company, though said to be in. the possession of Hastie and Company, were not the property of Bowie and Company at the time when retention was claimed, but of Melrose and Company for an oner- ous cause;, and the latter did not owe the defenders one farthing on any account when retention was put forward. Hence, as between the parties now opposed to each other, there was no concursus debiti et crediti to authorize any claim, either of compensation or retention, upon any rule of Scotch law, which especially requires concursus. — See Esrk. b. iii. t. 4, § 11, 12. It is true there is a class of cases, from which the present is obviously distinguished, in which retention is sometimes competent to a holder of another party's goods, as against a general trustee and creditors in bank- ruptcy, chiefly on the ground, that the creditor was ignorant of the alien- ation of the goods, and gave fresh credit to the debtor on the faith of the articles being the reputed property of the debtor, which they were enti- tled to retain. In this respect the decision in the case of Mein v. Bogle, in our reports, (if sound as a precedent,) was totally different from the present. Mein's case was a question between the general creditors of the first vendee, and sellers who claimed and established a lien, as against the purchasers and their creditors, for a general balance. No sub-ven- dee had paid the price of specific goods there, which is the case of the pursuers. The defenders, therefore, maintain a very different plea under circumstances incomparably less favourable than that sustained r#yQ2-| *for the sellers in Mein's case, as they pleaded retention only L J against the first purchasers, who are here middlemen. The present case is very different, and, in fact, the converse of Mein's. Farther, it was proved beyond doubt that the sugar now in dispute was not kept in the vendor's cellars, as in Mein's case, but in a bonded 480 E08S ON COMMERCIAL LAW. warehouse belonging to certain merchants in Greenock (Kerr and Com- pany), it whose books they were registered in the name of Ferguson and Company, the port-agents of the defenders ; and when the middlemen (Bowie and Company) bought the sugar, they got an order or mandate of delivery, first for the whole 1533 bags bought on 15th June, and next day a separate order for the 761 bags, which they indorsed to the pur- suers, who forthwith intimated to Ferguson and Company, the defenders' agents. With deference, this fact of itself, coupled with the payment of the price, appears to me conclusive of the case. For what conceivable purpose did the middlemen get the separate and partial order of delivery for 761 bags, if not to pass it to a sub-vendee ? No other object or purpose has been specified, or can be supposed. It was not proved that Bowie and Company were retailers. On the con- trary, their transactions, as proved in this and former cases, were those of brokers or wholesale dealers. And this being clear, the next inquiry is. Is there any example in the whole range of our reports, to entitle ven- dors, who have sold goods to a primary vendee ^during his solvency, — drawn paymen't of the price, and given a transferable order of delivery to that party, which is indorsed for value to another purchaser, — being allowed to retain the goods, not against the primary vendee, but against the sub-vendee, who has also paid the price to the middleman on the faith of an indorsed transference of the order of delivery duly intimated to the original agents, to whom it was addressed? I apprehend that every principle of law and justice is directly adverse to such a claim. Under the circumstances here combined, I think it is not in the mouth of the defenders to allege that the pursuers' right was unknown to them, or that the defenders were entitled to a lien over the goods which r*7n^n ^^^ pursuers, an onerous third party, had *paid for, in security L -J of a credit which the defenders had given to the middlemen, sub- sequent to their giving a transferable order of delivery for the same sugar. The order of delivery (especially in its second edition, limited to the very quantity bought by the sub-vendee, and indorsed by the middlemen to them) had been manifestly given for the very purpose of being trans- ferred to a sub- vendee; and the defenders were bound to presume that it would be so dealt with. Besides that, when the onorous transference of the order to the pursuers was immediately, and long before the insol- vency of the middlemen, intimated to the defenders' agents at Greenock, to whom it was addressed, that was equivalent to intimation to the de- fenders themselves. Had intimation of the pursuers' purchase been given by them direct to the defenders, they surely could not set off a new debt, or plead retention for a new general balance, as against the parties who had acted on the faith of their order of delivery. Separately, the de- fenders are equally barred from alledging ignorance of the pursuers' right, when intimation was made of it to their agents, three months before the first vendee's bankruptcy. It is impossible to suppose, in point of 'fact, that the sub-vendee's right in such a case was not known to the defenders long before the bankruptcy of the middlemen. If it was of any consequence for the de- fenders to know whether the order of delivery was transferred to third CONTRACT OF SALE. 481 parties, it was the duty of the defenders' agents to inform them of the transfer as soon as it was intimated to them ; and the defenders should have given instructions to their agents to that effect. It is impossible that onerous and innocent third parties can suffer from the omission of either, even if there was any, which is highly improbable, and was not proved. The defenders argued, that intimation of an order of delivery address- ed to registered port-agents, was found insuflScient to divest the first sel- lers, to bar them from stopping delivery to a sub-vendee, in the case of Smith v. M-nA-i *until the purchaser pays the price." On that essential point, L -" the state of the fact here is the reverse of that of M'Ewen. The completion of the pursuers' right of property in the sugar in question, was proved by another test of the most decisive nature, in a case of sale. This was by the actual delivery to the pursuers, without objection from the defenders, of 170 bags — very nearly one-fourth part of the sugars sold under the second order of delivery granted by the defenders, and indorsed to the pursuers. That, I apprehend, was a suf- ficient act and deed, in the particular circumstances of this case, to trans- fer the property of the whole lot resold by the first vendees to the pursu- ers, and to bar the original sellers from attempting to reclaim any part of the goods sold. There can be no doubt that a breaking of bulk, and the taking possession of a portion of goods sold under one entire contract, is generally an indication and proof of the completion of the contract, and of the transfer of the property. Thus, the following cases are briefly reported in one of the latest published English digests : — " The right to stop in transitu is defeated by the delivery of part of the goods sold under one entire contract, if such delivery of a part appears to have been intended as a delivery of the whole. Where 800 bushels of wheat, part of an entire cargo, were delivered, it was held that it must be taken to be a delivery of the whole." (Slabey v. Heyward, 2 H. B. L. 504.) "So, where the goods were in the hands of a wharfinger, and the purchaser weighed the whole, and took away twenty-five bales, leaving the remainder on the wharf, it was held that this amounted to taking possession of the whole, and that the privilege of stopping in transitu could not attach." (Hammond v. Anderson, 1 B. & P. N. K. 69.) "There can be no doubt that, wher- ever there is a complete delivery of part of one entire cargo to the con- signee, the iransitus is ended, and the consignor cannot stop the remain- der." (Per Bayley, J. Crashay v. Eades, 1 B. & C. 183. Roscoe's Digest, 7th ed., 557.) Upon these authorities, the partial delivery of 170 bags in the present instance, made by the defender's agents to the pursuers, was a recogni- tion and ratification of the order for the whole 761 bags and nothing else. The pursuers got one order *only through the defenders r^irQg-i for the whole quantity, and the delivery of 170 bags by the de- L J 482 EOSS ON COMMERCIAL LAW. fenders' agents was an effectual acknowledgment, and acting under the entire order. No doubt it would appear that some of the reported oases as to partial delivery turn upon nice distinctions, which give an apparent uncertainty as to the legal effect of partial delivery in particular instances. Into these it is unnecessary to enter, as I believe the specialty, now finally established here, of delivery of a part of the goods to sub-vendees after payment of the full price to a middle vendee, who has also paid the ori- ginal vendors, and got from them an order of delivery, would be held in JEngland to supersede all questions as to the completion of the purchase. ^— See the case of Green, 1 Starkie, 447, and authorities there quoted, where partial delivery to a vendee, who had agreed to grant a bill for goods, was held to pass the property of the whole lot, comprehended in one agreement to sell, as the vendor, from his own negligence or fault, had delayed to draw the bill before the vendee took delivery of a part. The present is obviously a much stronger case. Keeping in view these specialties, the defendants' claim, if sustained, resolves truly into this, that the vendors of colonial produce, even after receiving payment of the price of special lots sold, and taking delivery of a large part, are in future to have a lien over a part accidentally left in their possession for their general balance, and even for a balance contract- ed subsequent to the sale, under which the sub-vendee's claim arises. This is a serious doctrine, which, it has been hitherto understood, can only be admitted by positive law, or by general usage. But no such law or practice has been established by the defenders. I am not aware that it can be legitimately objected to these views, that they are founded in part on authorities in English practice, with which we are imperfectly acquainted. It has been hitherto understood as absolutely essential to the interests of trade, that the different parts of the empire should be subject to the same rules on matters of proper com- mercial law; and it would, indeed, be a very gross anomaly, if a seller of goods in Grlasgow possessed more extensive privileges, or a lien for his general balance, which would not equally belong to merchants in London r*7flfi1 *°^ Manchester, when they sell to parties resident in Scotland. L J Accordingly one of the articles of the Union of the kingdoms (article 18) seems to have been framed to obviate that very inconvenience. And reference may here be made to the decision of this Court, affirmed in the House of Lords, in the well-known case of Hamilton v. Wood, in 1787, (Diet. 6269.) In that instance a certain hypothec was claimed by shipbuilders for repairs on a vessel in a home port. The decisions in Scotland in favour of the preference, for a century, were strongly founded on ; but the Court, after much contrariety of judgment, and even against the opinion of Lord Braxfield, directed a case to be sent to English coun- sel of eminence, to ascertain the law in similar questions ; and this being declared clear and settled, the Court repelled the hypothec, which judg- ment was affirmed on appeal in 1789, on the motion of Lord Thurlow. It has been argued, however, that there is some subtle or technical distinction between the provisions of the law of England and Scotland in the contract of sale, and that property in moveables passes in England OONSaAOT OF SALE. 483 by a concluded agreement without tradition, while it is only completed in Scotland, as in the civil law, by delivery. This supposed distinction, however, has no effect on the rights of parties in practice, as the law of Scotland, by the application of its doctrine as to the periculum rei ven- ditse, and by the operation of personal exceptions, against all pleas of re- tention or otherwise, urged by sellers to the prejudice of onerous third parties, gives all the protection to sellers and purchasers with us, which they possess under the law of England, Accordingly, Professor Bell, in the last edition of his Principles, observes — "It has sometimes been con- tended that in Scotland the right of retention goes farther than the Eng- lish lien, so as to comprehend all cases where there is legitimate poses- sion and a debt due to the possessor; and that retention is in such case a necessary substitute for the diligence of arrestment, which a creditor possessed of his debtor's effects cannot use in his own hand. But there is no ground for this distinction." — Bell's Prin., 4th edit, sect. 1431, p. 530. Without farther argument, it humbly appears to me that the present case is to be looked at with all specialties combined, — and not as if it turned on any one fact, standing isolated and *alone. This, how- r^^Air-i ever, was the course adopted in the dexterous argument maintain- L J ed for the defenders in the present case. The points are treated sepa- rately ; and it was inferred that any one of them occurring in certain cir- cumstances was insufficient to make out the right of the last purchasers. But that mode of treating the case is manifestly fallacious and unfair. The strength of the present case lies peculiarly in the accumulation of circumstances to prove the completion of the transaction, though I incline to think that the payment of the price to the original vendors would of itself have barred them, under any circumstances, from objecting to the claim of onerous sub-vendees. It may be at once admitted, that if an order of delivery had been given to the middlemen, without payment of the price, the case would have come within that of Smith v. M'Ewen, although some Judges doubted, in that instance, whether intimation of the order was made to the port-agents before the bankruptcy of the middlemen, which is clearly established here ; but an order of delivery given in a cash transaction, in exchange for an immediate payment of price covenanted, constitutes an irrevocable transfer to the vendee the moment the price is paid. In like manner, if the order had not been intimated to the port-agents, to whom it was addressed, months before the bankruptcy of the middlemen, that might have constituted a feature of the case on which an argument for the seller might possibly have been raised, though not after payment of the price. Still farther, an order of delivery granted in a ready money transaction, honestly fulfilled, followed by a large partial de- livery, is a specialty which seems to render the pursuer's case actually more cogent and clear than any other which I have been able to find on record, where the right of a purchaser falling within the category of cases of this description has received effect. Indeed, the state of the fact on this last point appears to me to be so decisive, that if the partial -delivery which has taken place here be not held sufficient to complete 484 ROSS oTn oommerciaii law. the transfer to the purchasers, I am of opinion that the test of the trans- fer of goods sold by partial delivery to the vendees may in future be blotted altogether out of the law, as the plea can never occur in circum- stances more demonstrative of the reality and *justice of the pur- L ' J chaser's claim than it does in the present instance. On the whole, therefore, I continue of opinion that the exceptions taken by the pursuers ought to be sustained, in so far as the charge excepted to bore that retention of the sugar in question, as agaihst the defenders, vcas competent, notwithstanding of the payment of the price and the other circumstances established in evidence. The Court disallowed the exceptions. ALTHOUGH ON THE BANKRtrPTCT OF A PURCHASER, THE SELLER MAT IN VIRTUE or HIS UNDiyESTED RIGHT OE OWNERSHIP RETAIN GOODS SOLD BUT UNDELIVERED IN SECURITY OF A PRIOR DEBT, A PARTY IN WHOSE HANDS GOODS HAVE BEEN PLACED FOR THE PURPOSE OF HAVING SOME OPERATION PERFORMED UPON THEM, IS ONLY ENTITLED TO RETAIN THE GOODS UNTIL HE IS PAID THE EXPENSE OF SUCH OPERATION, AND IS NOT ENTITLED TO RETAIN THEM IN SATISFACTION OB SECURITY OF ANY OTHER CLAIM. I.— HARPEE'S CEEDITORS v. FAULDS. Jan. 2T, 1791.— S. F. C. 328. Bell's Oases, 440. Harper, a dealer in the linen trade, used to employ Faulds as a bleacher ; and at the end of each season accounts were settled between them, for the cloths bleached in the course of it. On one of those occa- sions Harper granted a bill for £105. In the following season he sent various parcels of linen to this bleach- field, but soon after became bankrupt, his estate being sequestrated, and a trustee over it chosen. The trustee demanded delivery of those goods on payment of the price of bleaching them. This being refused by Faulds, who claimed retention for security of the bill-debt, the trustee brought an action against him, when it was Pleaded for the Defender. — One's right of retaining the goods of r*7091 ^°°*''^^''» ^"'^^ ^^ ^^^ restore the property of the *retainerin his L -I possession, is foanded on the first and clearest dictates of justice, It is, however, to be understood, that in the retainer's situation no cir- cumstances have occurred inconsistent with his claim ; that his posses- sion is honest and lawful ; that he has neither relinquished the claim by express paction, nor is excluded from it by implied compact, as in the cases of deposit and of commodate, nor debarred by any positive law. But if possession has been obtained Mnc inde in the way of commerce, where, from the nature of the contract, each party is to be entitled to a certain patrimonial benefit, and to make the best advantage he can of his neighbour's property, justice requires that the performance be mutual, while nothing to the contrary is stipulated or implied. And it requires this more especially when, by the insolvency of the party, the denial of retention is the loss of a debt. CONTRACT OF SALE. 485 Such is the situation of an artist having the goods of other people in his possession for the purpose of manufacture ; it being in effect the same as if he had held that possession for his own benefit, by paying a pre- mium to the owner. This is evident where different artizans have, in that way mutually, each other's goods in their custody ; in whose case it is clear, at the same time, that there is nothing peculiar. The above is the doctrine of the Roman law. Without bona.fide pos- session — in the ca-se of deposit — or in that of commodatum, there ex- isted no right of retention ; Voet. ad. lib. 16, tit. 2, § 16 ; ad. tit. depos. vel. cont. p. 741; 1. pen. Cod. lib. 4, tit. 34 j Id. ad. tit. Com. vel. cont. p. 684. But in all transactions affording mutual benefit, or quid pro quo, such as locatio conductio, the principle of retention had its full operation. Though the convenience of commerce may dictate the limi- tation of the right, to cases of the insolvency of owners, yet no such dis- tinction was recognised by the Eoman law, which allowed it always, even as a/hcilius remedium. When, in § 32, ad. tit. de loe. oond., Voet argues that a conductor cannot retain, he means only as claiming the property against the locator; and if, under that title, he speaks solely of retention for sums expended on the subject, it is because this alone could there fall properly under his consideration. Even in the case of pignus, the Romans admitted the right of retention *in its fullest extent; allowing the pledge r^^-i a-i to be retained for extraneous debts, not excepting such as were L -I contracted after delivery; 1. unic. Cod. Etiam ob. chirog. pec. pen. pig. ten. poss. ; Perez. Prselect. in Cod. Justin. Nor does it derogate from this right, that the retention could not operate against the secundus creditor, or him who had the secondary right of pledge; Voet. ad. tit. Quib. mod. Pig. vel. Hyp. solv. § 15. Those principles are not less firmly founded in the common law of Scotland, as appears by the best writers; Stair, b. 1, tit. 18, § 7; Bank- ton, b. 1, tit. 24, § 34; Ersk., b. 3, tit. 4, § 20. The Act of Parlia- ment of 1592, instead of introducing, modified and limited the pre- existing right of compensation; in the same manner as the immediately subsequent act, relative to expenses of plea, did with regard to that claim. Nor is it any objection to the opinion of the authors above cited, that they refer to particular instances of retention, these not being stated as limits, but as examples of the right. The decisions of the Court still more explicity announce the same doctrine. In the case of Menzies v. Irving, retention of a sum due by bill was admitted, on account of a cautionary engagement by the debtor for the creditor ; in which case the caution was surely not incurred in contemplation of the bill-debt, as the bill could be indorsed away, and retention would not have been pleadable against the indorsee ; Fountain- hall, 10th July, 1710. In like manner a mandatary, after the death of the mandant, was found entitled to retention of money, for relief of a cautionary obligation for the debts of the latter; Remark. Decis. 19th June, 1744, Creditors of Murray v. Chalmer. 486 EOSS ON COMMERCIAL LAW. These are palpable instances of the general right of retention, and peculiarly apposite to the case in question. For it is surely not less to be presumed as understood, between a creditor and his debtor who is also cautioner for him, that the debt shall be paid without any claim of retention as cautioner, than that an artist having his employer's goods in his hands to be manufactured, should hare agreed to renounce his right of retention for debts, due to him by the employer. The decisions in the cases of Lees v. DiWiddie, Fountainhall, 10th P^„.. ^, December, 1707, and of Glendinning v. Montgomery *of Mag. L J biehill, Kem. Decis., 8th June, 1745, though perhaps erroneous in sustaining an unlawful possession, are nevertheless strong authorities for the right of retention ; as was also the judgment of the House of Lords in the case of Hewit and Brockhurst, 6th December, 1775. Nor when the ratio decidendi, in that of Leslie v. Hunter, the very case of a bleacher retaining cloth bleached by him, is attended to, can it be otherwise considered than as a precedent of a similar kind ; Pac. Coll., 30th July, 1752. On the same principle alone, rests the acknowledged right of factors to retain the goods of their constituents, in security of all debts what- ever due to them by the latter. Diet, of Decis. voc. Mutual Contract ; Erskine, b. 3, tit. 4, § 21. For on any other ground than that of the general right of retention, a factor's claim could extend no farther, than to retain for payment of factor's fee and of disbursements on the sub- jects. Even the right of retention, called a writer's hypothec, is ano- ther proof of this principle. Nor in the present case are the creditors of the bankrupt-owner placed in a better situation than he himself would have been. They are evidently in one less favourable; for any idea of an anxiety to exclude the right of retention, can hardly be applied to a party who is bankrupt, and without any personal interest in the matter. The bank- rupt statutes surely affect not the right of retention more than that of compensation. If the goods by carelessness had been destroyed, the bankrupt would have been creditor for the price, and compensation niust have been sustained. But as they are preserved safe, is the claim- ant's condition on that very account to be rendered worse? And although a fraudulent use might on some occasions be made of such retention, this imperfection is nothing but what is common to all com- mercial transactions ; the remedy of which the law will supply when it becomes necessary, as in all cases where devices are employed, fraudem facere legi ; Eac. Coll , 9th March, 1781, Blaokie v. Robertson j Diet., vol. iii. p. 38, Sime v. Thomson. Indeed as a person can neither arrest nor poind goods in his own hands, to deny the right of retention would make the situation of one possessing the bankrupt's goods more unlor- tunate than that of any other creditor. P7121 *Though the law of England is of no proper authority in Scot- L J land, it may be noticed that it supports the doctrine of reten- tion ; of which Lord Kames gives an instance in Princ. of Equity, b. 11, cap. 3, as occurring in the Court of Chancery. And that the same OONTHAOT OF SALE. 487 rules prevail there in the other courts appears from Lord Hardwick's opinion in the case of Deeze ; Atkins' Kep., vol. i. p. 229. Nor is Lord Mansfield's judgment, in the case of Green v. Farmer, diflFerent in prin- ciple, as is evidenced by the reasoning on which it is founded. Pleaded for Trustee. — The inexpediency of the defender's doctrine, both to the public in general, and to the individual employer, is obvious : To the public, whom by a latent and unknown security it excludes from access to a debtor's property ; and to the employer, who may thus be deprived of the most advantageous use of his goods, which will often depend on having them at command at a particular time. The privilege of compensation or of retention was not original in the law of any country; its subsequent introduction, and always under various limitations, having been owing to considerations of equity. In Home, so far from being a part of the common law, compensation was only at first admitted ex seguitate by the Praetor, in judiciis honoe jidei; nor was it extended so as to become admissible in judiciis slricti juris, prior to the rescript of the Emperor Marcus ; Vinn. ad Instit., p. 811. And in England, it was but in the reign of Geo. II. that com- pensation of mutual debts unconnected with each other, was authorized by Statute. That in Scotland, before the Statute of 1592, c. 143, compensation was not permitted by way of exception, appears from Balf. Praot., p. 249; Stair, b. 1, tit. 18, § 6. The Statute speaks of compensation alone, being silent as to retention of ipsa corpora ^ which owes its introduction to the authority of the Court. But the retention thus authorized is always founded on a mutual contract, and consists in with- holding performance on one side, until that on the other be ready to ensue; Diet, voce Mutual Contract. In the case of an artist employed to manufacture goods, the contract that takes place, consists in an obligation on the one *hand to rs^i o-i perform the work and restore the subject, and on the other to L J pay the hire ; the civil possession remaining all the while with the employer ; Voet. lib. 4, tit. 2, § 1, 1. 18, pr. de adquir. vel amitt. possess. ; Blackstone, vol. ii. p. 452 ; although the artist may avail himself of his actual custody, till the counter part of the contract be fulfilled. But farther than this, which is a right arising immediately from the contract, the artist has no privilege of retention. For the defender's idea of the right extending as a security for extraneous debts, has no foundation in law. If there were any ground for so unlimited a claim, it would not be confined to moveables, but would comprehend equally immovable pro- perty. A tenant of a farm, for example, would, in an action of remov- ing, be entitled to defend himself by the same plea, on account of a debt due to him by the landlord. But the law does not recognise any - -^ appears to have had this result, that occasionally there was no debt due by Denny and Company t.o Laurie and Company. In February, 1846, it appears that the accounts were square, or rather there was a balance in favour of Denny and Company, the customers. Then, again, this was the state of matters in August, 1846. So that there was no regular period of settlement; but payments were made from time to time as suited the convenienca of the parties. There seems to have been no period at which there was no grain belonging to Denny and Company in store. At the time of the bankruptcy there were in the store the remains of several parcels of wheat and oats ; and the account as applicable to these parcels, as stated by Laurie and Company, is £152, 10s. The trustee on the bankrupt estate demanded delivery of these parcels, inti- mating his willingness, at the same time, to pay the store rent and charges incurred in respect of them. But the storekeepers refused to give up these parcels till the whole balance due to them by Denny and Company was paid. The Sheriff-substitute has held, that there has not been estab- lished either any special agreement between the parties, or any usage of trade, which will support the pretension of the storekeepers to retain for the general balance. I cannot say that I differ from the sheriff as to the facts. I see no sufficient evidence of special agreement. I cannot say that there has been established any usage of trade. I rest nothing on the occasional pretensions which some storekeepers have asserted of a right to retain special parcels of goods for a general balance. Sometimes these pretensions were submitted to — sometimes they were not; the re- sult apparently depending on the comparative obstinacy of the parties. The alleged usage is therefore a mere pretension on both sides, and, in any proper sense, not a usage of trade to which we can give effect. But still the question remains, whether, having regard to the general doctrine of the law, there is such a right; and it is on that point that the case 502 ROSS ON OOMMEROIAL IiAW. has been argued to us. The advocators' pretension is not merely that they are entitled to retain for the accounts applicable to the parcels of _ . which parts still remain in store, or for debts *contracted by L -I Denny and Company during the time they were in this position ; but it is, that it is competent for them to retain in security of a general balance ; in fact, it is the principle which was asserted by the minority of the Court in the case of Harper v. Faulds. I do not go on the incon- veniences said to result from the peculiarities of this particular trade ; nor do I say that the argument, ah inconvenienti, has been entirely re- butted. The inconveniences on either side seem to be about equal. The question is, can we sustain this pretension after the judgment in Harper v. Eaulds ? I do not think the cases between purchaser and seller which have been cited are applicable. They rest on a different principle. I think this case just rests on the principle which has been recognised in Harper v. Faulds and the subsequent cases ; and therefore I do not think myself warranted in disturbing the interlocutors of the sheriffs and the Lord Ordinary. Lord PuLLERTON T am quite clear that there is no such general rule as that contended for by the advocators. There is a clear distinc- tion between a right of retention of so general a kind as is contended for, and that more specially competent to a party who has goods put into his hands for a special purpose. It is said that- the party has this right wherever his possession is innocent. That is not enough ; he must have legal possession. In a case of merely innocent possession, the party is not entitled to plead his right of lien against the general creditors. The Dean of Faculty carried his argument to that ; and he evidently felt the difficulty of his case, and the necessity of getting rid of the valuable information he gave, as in his able argument in the case of Melrose v. Hastie. The plea he was obliged to maintain was, that because there was such a thing as retention known in the law of Scotland, there was nothing known but the right of general retention, and that lien was not known. I think that a limited right of retention is as fully recognised in some cases, as the doctrine of general retention is in others ; and in the cases where general retention was sustained, the greatest care was taken by the Judges to show that they did not go against those cases where lien or a limited r*7351 "S'^' °^ retention was recognised. I can see *no authority for ■- -• holding, that because there is such a thing as a general right of retention, there is no such thing as lien. In some cases the principle of general retention must be applied ; in others the principle of lien. Lord CuNiNQHAME.— I consider the interlocutor of the Lord Ordi- nary in the present case to be founded on the soundest and best recog- nised principles" in the law of retention. There is, fortunately, no dispute as to the facts. The grain in question was deposited in the defenders' warehouse as a place of deposit, and for custody only. The pursuer, as trustee for the creditors of the depositor, claims to retain it in payment of warehouse rent, payable for each parcel to be delivered. The defenders, on the other hand, insist on retaining it for payment of an account for rent on quantities previously delivered up. CONTRACT OP SALE. 503 The question is, if such a claim of retention can be sustained under the findings of the Lord Ordinary, that there has not been proved either any special agreement to pledge the grain successively deposited, for the gene- ral balance, or any usage of the trade so to retain. I am of opinion that tho claim of lien is not maintainable. 1. Viewing the question apart from authority, the principles of com- mon law and equity are strongly opposed to retention in such a case as the present. Where goods are placed in a warehouse during the course of an active trade, it is for the special purpose of temporary deposit — cus- todise causa only. This is no pledge, but an implied condition that the goods shall be aeliverable on demand, on payment of the charges due for the custody, as the purposes of trade require. This seems self-evident without any illustration; and if so, the case falls directly within the rule and principle of the case of Harper v. Faulds, and retention for other claims, or for a general balance, is out of the 'question. 1^0 doubt there is a certain class of cases, analogous with the present, in which an exception from the preceding rule has been introduced. In certain trades and employments, a usage has received effect to retain goods for a general balance, though deposited at first for a special pur- pose. These cases are accurately enumerated by writers on commercial law. The *learned Judges in the Court below have had that r:|.>rqo-i state of the law particularly in view in the present question; they L J allowed a proof to have the usage ascertained, if it existed, but no evi- dence to the effect required could be obtained. The authority most apt to create any diflBiculty in such cases as the present is, that it has been long laid down in England, that wharfingers, the employment most analogous with warehousemen, have liens for their general balance. But (1.) The trade of warehousemen is not pre- cisely the same as that of wharfingers; the latter must often part with the goods for the interest of their employers, suddenly and unexpectedly, without having time to adjust accounts for rent emerging on each parcel to the warehousemen. (2.) The wharfingers in England have a usage, which is proved not to exist in Scotland. (3.) According to the latest writers, the right even of wharfingers to retain for a general balance, seems to be questioned : — " So it has been determined that calico print- ers, dyers, and wharfingers, have liens for their general balance, but not t fullers. However, notwithstanding these decisions, it does not appear certain that the right of lien may not, even with respect to some of the above trades, be hereafter contested, for the Court has remarked with, regard to wharfingers, that there may be a usage in one place varying from that which prevails in another. — See Smith on Mercantile Law, 4th ed., 1848, p. 510. Accordingly, however the law of England may stand at present on this point, there is no evidence of usage among our own traders in Scotland to justify us in extending the right of general lien to new and untried cases, on the same ground that such right is recognised in England. Much as it interests trade to have a uniformity of mercantile law and practice estjblished in every part of the empire, we must especially keep in view, in the present question, the origin in England of the particular 504 EOSS ON COMMERCIAL LAW. rule of the law of lien on which the present questions turns. The right of liens for general balance appears to have been introduced solely by the custom and usage of trade. And if there be a usage in England which has been not observed in Scotland, it is not allowed for any Court to assimilate the law by a decision for the first time in a case of recent -„_ occurrence. I am aware, that on this point Professer *Bell, in L -I his Commentaries, makes the following observation : — " In Soot- land there does not appear in our books any case in which a general lien by usage of trade has been claimed or established ; and although the rules settled in England, where they rest on special usage, or on decisions, per- haps erroneously pronounced, but which have served as the groundwork rule of a trade may not be entitled to adoption, yet, wherever (as in the case of a wharfinger) the usage and the rule are general, it would appear that the settled law in England would have great influence here, pro- vided it were not o'pposed by the principles of common law." — Bell's Com., vol. ii. p. 108. In the present case, there is no proof whatever among the witnesses examined, to afford any plausible ground for ihe warehousemen's claim. In argument, the defenders took a wide scope as to the right of reten- tion com'petent by the old common law of Scotland — and seemed to con- tend, that in all cases of insolvency, the rights of retention by custodiers were absolute arid unlimited. I do not believe that this doctrine was ever recognised in any system of enlightened jurisprudence. 'Ihe civil law sanctioned no such policy. On the contrary, from the pervading influence of the rules of equity and good faith, which in general so re- markably characterized the civil law, it was held that possession given for a special and temporary purpose, could not be inverted or. misapplied for the security of other, especially pre-existing claims, on the plea of retention. That rule has been peculiarly observed in the best commercial systems in modern times, which have grown up and flourished under the most jealous enforcement of good faith. Hence, in the great majority of trading countries, such as in G-reat Britain, America and others, rights of retention are limited to the special purpose and conditions of the deposit. The whole authorities, earlier and later, on this subject, were elaborately developed in the discussion in the case of Harper v. Paulds, where it was shown that the pure maxim of the civil law gave no sanction to the retention of the deposits for ex- • traneous claims, when the custody was given merely for special and tem- porary purposes. And the best modern authorities attest, that such a r*7381 ^^^^ ^^ equally repugnant to the *principles and practice of the L J most extensive and important communities in the world, now car- rying on trade. Lord Ivory. — I am very clearly of the same opinion, and in arriving at that result, I feel it wholly unnecessary to embarrass myself with the rules of the law of England. It is impossible not to see the distinction between the principle of lien in England and the principle of retention in our own law. This case rests on the principle recognised in Harper V. Faulds, which was decided on principles exclusively of Scotch law ; for, though the rules of the law of England were referred to on both CONTRACT OF SALE. 505 sides, the Judges carefully disclaimed proceeding on these rules. The question whether each parcel of grain is to bear its own burden alone, or to bo also liable for the general balance, has been in this case argued before us on principle. The discussion therefore gives effect to the learned doubts set forth by Professor More, impugning the principle of the decision in Harper v. Faulds, and we are called upon to say whether these doubts are well founded. On going over the authorities there referred to, I do not think they touch the principle of that decision. There is no case prior to Harper where it was decided that a party holding the custody of goods temporarily, and for a particular purpose, could retain for the general balance. On the other hand, all of them are explainable consistently with that decision. The first class of cases are cases of sale, retenta jpossetsione, such as Mein v. Bogle, Sturgeon, Bailley, &o. In one and all of these cases there was an absolute right of property in the party ; the jus in re was in him, and when he was was asked to give up his jus in re, he pleaded retention, and refused to give up what was his, on not a mere title of possession, but on a title of property, until the counter obligation in bis favour was fulfilled. The next class of cases are those of trustees and factors, such as Niblies' Creditors (M. 1154), &;c., and in them the decision was rested on the confidence subsisting between the parties. But these cases are all dealt wilh as specialties; and the very circumstance that they were decided on spe- cialties satisfies me that there is no such general rule as the advocators contend for. The only other class of cases referred to is such as Lees v. Dinwiddy, M. 2546, *and Glendinning v. Montgomery, M. r^^qn-i 2573, which were cases of illegal diligence ; and of Muyay v. L J Chalmer, M. 2626, which was the case of a mandatory. The two first are now given up as bad law, and all the three are explainable consist- ently with Harper v. Faulds. In the two first the ground taken was, that the good faith of the possessor prevented his taking possession, from being looked on as a wrong done. But as they are admitted to be bad law, it is unnecessary to go into them. In the case of Murray, it was the same thing. He got so much money to pay to a particular person. The mandaut died, and the Court held that as the mandatory could not fulfil his mandate, therefore the money just became a debt to the man- date's estate. When wo have run over these oases, we have exhausted all the authorities prior to the case of Harper v.' Faulds. In that case Faulds was a bleacher. He got the goods for a limited purpose, which did not deprive the owner of the property. He got them on a limited title of possession, and when the purpose was fulfilled, he was bound to restore them, unless something occurred in the transaction itself to give him a claim to retain them. The distinction recognised in Harper's case was also recognised 150 years ago, in the case of Strachan, M. 2570; and the decision in the case of Harper has been confirmed in every case that has since occurred. In Brough v. Jollie, M. 2585, it received the most express confirmation by a unanimous decision of the Court. It is said that lien is a doctrine entirely new to our law. What, then, is the writer's hypothec ? Are not the books full of cases to the effect that the writer cannot retain for any other debt than professional charges ? 506 BOSS ON OOMMEBOIAL LAW. Then there are the oases of curriers, or of jewellers getting a ring to set, or of watchmakers getting a watch to repair. la fact, wherever the title of possession is limited, the right of retention is limited also. In the case of Stewart and Fletcher v. Macgregor and Company, May 19, 1829, 7 S. & D. 622, which was this very case of a warehouseman, it was held that neither against the ostensible nor real owner could he retain, except for the rent of these particular goods. And in Eussell v. Breadalbane, in the same volume, p. 767, the late lamented Lord President refers to the case of Stewart and Fletcher as a sound decision. Therefore, run- r*7Afn ^^^S °'^8'^ ^^ ^^^ *authorities, I find that wherever the decision L J is different from that in Harper's case, the case is distinguished from it in some very materiaj characteristic, and that its soundness has never been breathed upon. The fallacy of the argument by which that decision has been sometimes impugned, was successfully met by the Lord Justice Clerk, in Brown v. Somerville, 13th July, 1844. A party having possession is not in the same position as a party having an abso- lute disposition, with a back letter j for an absolute disposition passes the property. The property is gone from the disponer, though a right of reversion is left in him. I think we must adhere ; and I hope this will be the last time we will have to travel over the authorities to affirm a principle which has now taken deep root in our system, whatever may have been the law formerly. The Court adhered. The only plausible ground on which it appears that the claim of retention could have been maintained in the cases given in the text, vrould have been that the party claiming retention was placed in a worse position than the other creditors, from his being in possession of. the goods. There was no ground, however, for such a complaint. The diligence of the law was open to the party claiming reten- tion, as well as to the other creditors. It is true that he could not himself have arrested the goods, in consequence of their being in hia own possession, but he might have assigned his claim against the owner to a third party, and that party might have prosecuted the claim and arrested the goods. Although, too, he could not himself have arrested the goods, there appears to be no authority for saying that he could not have poinded them, and if so, instead of being in a worse he was in a better position than the other creditors, for he knew better than they did where the goods were to be found, to which his diligence would attach. ..*-,,-.-. *ALTHOTJGH A PARTY IN WHOSE HANDS AN ARTICLE IS PLACED r*74i I '- -^ FOR THE PURPOSE OF HAVING SOME OPERATION PERFORMED UPON IT, IS ENTITLED TO RETAIN THE ARTICLE UNTIL HE IS PAID THE EXPENSE OF THE OPERATION; TET A PARTY IN WHOSE HANDS AN ARTICLE IS PLACED NOT FOR THE PURPOSE OF HAVING ANY OPE- RATION PERFORMED UPON IT, BUT FOR THE PURPOSE OF ENABLING HIM TO MANUFACTURE ANOTHER ARTICLE, IS NOT ENTITLED TO RETAIN OONTEAOT or SALE. 507 THE ARTICLE DEPOSITED WITH HIM UNTIL HE IS PAID THE EXPENSE OF THE ARTICLE MANUFACTURED BY HIM. BROWN V. SOMMERVILLE. July 13, 1844.— S. 6 D. 1267. John Sutherland, bookseller, Edinburgh, was publisher of a period- ical work in numbers, entitled " Wilson's Tales of the Borders." This work had been stereotyped; Mr. Peter Brown, printer, having been em- ployed by Sutherland to sot up the types for the moulds, the stereotype plates themselves having been cast by stereotype founders, at Sutherland's expense. These plates were delivered to Brown for the purpose of print- ing from them, and he accordingly from time to time printed large quan- tities of the work. Sutherland thereby incurred to Brown a large ac- count, amounting, it was alleged, to £800. This account included the original expense of setting up the types for stereotyping, as well as for printing from the plates, and a small sum of £3, Os. 6d. which had been disbursed by Brown for repairs upon them. Brown had been also employed by Sutherland to execute other print- ing work for him, for which a balance remained due to the former ; and there had been various other transactions between them. Sutherland was sequestrated on 10th June, 1842. At this time the plates were in the possession of Brown, as they had been all along. William Sommerville, the trustee on Sutherland's sequestrated estate, presented a petition to the Sheriff of Edinburgh, for, having the plates delivered up to him, as being the property of the bankrupt estate. This application was resisted by Brown, on the ground that he had a right of lien over the stereotype plates in question. *He contended ; — that at common law, as well as by the prac- r^Y^^o-, tice of the trade, he had a right of lien or retention over the L J stereotype plates for payment of all sums due to him for printing from them the work of which they were the plates, and also for setting up the types from which the plates were cast, this being a part of the expense of the plates themselves. That he was further entitled to his lien, in respect it was the express agreement and understanding of the parties, on which their dealings were conducted, that the plates were to be in security to him for payment of the accounts incurred to him. That, at common law, and by the practice of the trade, and the agreement and understanding of parties, ho had a lien over the plates for a general baLnce of all debts or accounts incurred to him in his business as a printer. Respondent's authorities Ersk. 3, 4, 20, 21 j Bell's Prin., 4th edit., § 1410, 1411; 2 Bell's Comm., p. 103; Mein v. Bogle and Company, Jan. 17, 1828, 6 S. &' D. p. 360 ; Hunter v. Austen and Company, Feb. 23, 1794, 2 Bell's Comm. 114; Aberdeen and Smith v. Paterson, Nov. 20, 1812 ; Blake v. Nicolson, 3 Maule and Selwyn, 167; 2 Bell's Comm. 97; 1 More's Stair, p. 131 of Notes; Hume's Decisions, p. 127; Hun- ter, 1 Bell's Illustrations, 460 ; Wilson, March 4, 1794; Russell v. Breadalbane, 5 W. & S. 256; Smith's Mercantile Law, 511. 508 ROBS ON COMMERCIAL LAW. Sommerville denied that Brown had any claim against the bankrupt estate, stating that, upon an adjustment of accounts between the bank- rupt and him, he would be found to be a debtor to the estate. He also denied the existence of any special agreement between him and the bank- rupt, giving him a lien over the plates. He pleaded ; — that a printer who has been employed to throw off copies of a work from stereotype plates, although he might be entitled to retain the copies so thrown off in payment of the expense, had no lien over the stereotype plates themselves, on which he had not expended any labour. That even although a printer had a lien over stereotype plates for the expense of copies thrown off from them, it would not cover the _^„ . „-. *expense of copies printed from other plates, nor that of printing L J work generally. Petitioner's authorities Bell's Prin., 4th edit., pp. 524, 531 ; §1410 and 1434; Bleaden v. Hancock, 1 Moody & Walker, 465 j 2 Bell's Comm., 527, 531 ; Ibid., 114 ; Harper v. Faulds, Jan. 27, 1791, M. 2666, and 2 Bell's Comm. 106, 107, 109; Robertson v. Duff, Jan. 14, 1840, 2 D. 279. A proof having been allowed to the parties of their averments, in so far as not admitted. Brown led evidence of his averments as to the usage of the trade. The sheriff found that the right of lien pleaded by the defender (Brown) not being founded on the ground of any sum being due to him for the fabrication of the plates, his claim of retention was not authorized by law, and that he had failed to prove either a special agreement or a usage in the trade. He therefore ordained him to deliver up the plates. Brown presented a note of advocation. The Lord Ordinary pronounced|this interlocutor : — « Advocates the cause : Finds that the present question relates solely to a claim preferred by Mr. Sommerville,' trustee on the sequestr jted estate of John Suther- land, bookseller, against the advocator, Peter Brown, printer, for delivery of the stereotype plates of a work in six volumes, admitted to have been delivered to the advocator by the bankrupt before his failure, for the pur- pose of printing therefrom : Finds it admitted that the said plates have, since delivery as aforesaid, remained continuously in the actual posses- sion of the advocator : Finds that that party averred, in the earliest stage of the process in the Inferior Court, ' at the date of the sequestration there remained unpaid to the respondent a sum of £800 and upwards, due to him for printing the said work, and for setting up the" types from which the stereotype plates were taken, including the sum of £.%, Os. 6c?. which the respondent disbursed for repairing the plates :' Finds that, while the preceding averment was denied by the trustee, no due investi- r*74.41 8**^°'* ^""^ *plaoe into the true state of accounts between the L -I parties; but the advocator's averment, and the plea founded thereon, were rejected and repelled by the sheriff as irrelevant : There- fore alters the interlocutors of the sheriff, and sustains, as relevant, the first plea in law set forth for the advocator in the Inferior Court, and, in terms thereof, finds that the advocator has, at common law, a right of special lien or retention over the stereotype plates in question for tho ac- CONTRACT OF SALE. 509 count remaining due to him for printing fronvthem the work of which they were the plates : Kemits to Mr. William Moncrieff, accountant, to ex- amine the accounts of the parties, and to report whether any and what balance was due to the advocator by the bankrupt at the date of the se- questration under the preceding special finding : And in respect it was stated at the debate that the advocator's claim, as now restricted and found relevant, may, if ultimately sustained, exhaust the value of the plates, supersedes consideration of the other points raised in this cause till the state of accounts now directed to be investigated is ascertained, and supersedes, in the meantime, all questions of expenses, and de- cerns." In a Note his Lordship observes, — " The question here raised is one of considerable importance in mercantile law and practice ; it docs not appear to have been yet tried in any case in this Court attended with the same specialties ; but on generaljprinciples of law and equity, it is thought that the printer has a clear right to retain the plates, to the extent at least now sustained — i. e., for the balance (if any) arising due to him under the special contract in virtue of which the plates were originally delivered to the printer, more especially keeping in view the fact that the employer was bankrupt when retention was claimed. The judgment now pronounced goes no further. " When the stereotype plates in dispute were delivered by the book- seller to the printer, the obligations necessarily implied and undertaken by the parties were, — 1st, That the printer should restore the plates to his employer, with such number of copies printed therefrom as his employer might require ; and, 2d, That the latter should pay the printer the sti- pulated expense of throwing off the copies incurred under that contract. *If there be no fallacy in stating this as the agreement of parties, r^itPr^K-, it seems to follow, on principles of nndeniable justice, that the L -I employer cannot require delivery either of the copies or of the types, if he is unwilling or unable to fulfil his own obligation to pay the expense incurred by the printer under the very contract, upon which the types were originally put into that party's hands. " The claim of retention to this effect is not a general lien, which is viewed very jealously in law, and generally requires established usage to support it, but it is a special lien arising under the contract, upon which the articles retained were delivered to the advocator; such liens are al- ways favoured in law, as they depend, at least with us, on principles of mutual contract and equity, which must receive effect in every mature system of jurisprudence. The right of retention in such cases is founded on the rule that no party shall beallowed to enforce the obligation in his own favour on one side of a mutual contract, if he is not prepared to fulfil the counter stipulation undertaken by himself on the other side. The Lord Ordinary, with deference, hardly knows of any exception from that rule in the law of Scotland. " The sheriff rests his judgment entirely on the well known case of Harper v. Faulds, in 1791, Diet. 2666, in which it was found that a bleacher could not retain for his general balance cloth put into his hands for the sole purpose of bleaching. The authority of that case probably March, 1855.— 33 510 ROSS ON OOMMEBOIAL LAW. cannot now be questioned, but there are no termini hdbiles for its appli- cation in the present instance. In Harper's case there was nothing put into the bleacher's hands, under the contract entered into between the employer and manufacturer, except the article itself requiring to be bleach- ed. That property of course the bleacher was entitled to retain, till the expense of bleaching the whole lot was paid; but it was found that the bleacher could not retain the cloth last received by him for bleaching lots of other cloth transmitted to him at an anterior period, and returned to the employer perhaps months and years before retention was claimed. " The distinction between that case and the present requires no com- ment. There were here pledged and given over to the defender, not only r*7a.Rl '■^^ paper to be printed, but the types to be *used by him. The L J implied contract was, that the printer should be paid for his la- bour, and that he should restore the paper, when printed, and the types, to the employer. These were the direct and the counter obligations of one special contract, and consequently the types only fall to be returned at the termination of the contract, and on the fulfilment by both parties of their respective obligations undertaken at the time of the deposit. In the case of Harper there was no room for any such claim. « But the plea of the pursuer resolves into this, that no article can be the subject of a special lien, except a commodity on which the party claiming retention has actually expended his labour; and as the types were not cast by the defender, it is argued that there i? no room for a claim of lien. That proposition, it is thought, proceeds on a mistaken view of the origin and foundation of lien in our law. Lien is founded on possession given by the legitimate owner, and a moveable is always sub- ject to retention under the operation of the actio contraria, so long as the owner leaves unfulfilled his own obligation in the contract under which delivery was given to the party claiming retention. If a gentleman give a picture of an ancestor to copy, under an engagement to pay a high price for the copy, surely he could not sue for redelivery of the original and leave the price of the copy unsettled. Still less would it be competent^ if the principal employer became bankrupt, for the creditors of the owner to maintain an action for restitution of the original, and to compel the painter to take perhaps a trifling dividend for the copy, when he held a valuable chattel, delivered to him at the date of the contract, and, with reference to that employment, more than sufficient for his payment. " At the same time, it is hardly to be denied that the law of England on this point is correctly stated by the pursuer, as the very question now under consideration was decided by the present Lord Chief Justice of the Common Pleas, in the case of Bleaden v. Hancock, in 1830, 4 Car. & P. 152, in which it was expressly found, that ' in respect of a modern trade, like that of stereotype printing, there could be no general usage to sup- port the claim of a lien on the plates, not being manufactured by him, but only sent to print from.' r*747n *"The Lord Ordinary cannot presume to question the sound- L -1 ness of that judgment, as in accordance with the law of Eng- land. Although only pronounced at Nisi Prius, it sufficiently appears, from other authorities, that the doctrine of the learned Chief Justice CONTRACT OF BALE. 511 who tried the case is acquiesced ia as agreeable to the common law of England. But, with great deference, the authority and application of that precedent to our laws are, in every view open to discussion. The common law of England, it is believed, is founded on ancient maxims and usages in that part of the empire, many of which were established in early and rude times, and were too narrow and imperfect for vindicat- ing and carrying out the equitable rights of parties in a more advanced age and busy community. The common law of Scotland, again, is free from that imperfection, being derived chiefly from the civil law, which was almost implicitly adopted in our earlier practice ; it is founded on the most perfect system of equity that the world has ever seen, and hence it is free from many of the anomalies which characterize the com- mon law of England. " In the very class of cases to which the present belongs, the rules laid down in English precedents are quite at variance with the law and practice of Scotland, if not with the piinciples of natural justice univer- sally felt and acknowledged. Thus a horse put into the fields of a pro- prietor for pasture cannot be retained for the agistment (rent) according to the law of England, but if labour has been expended on the animal, e, g., in training, or if a mare has been covered by the stallion of another, the animals may, in these cases, be the subject of lien, because their utility or value has been increased by the services of the party claiming retention. "In like manner, an inkeeper may retain the horse of his guest for his keep, perhaps because such a usage became general in an early state of society in England; but a livery stable-keeper ^which is a calling of later date) has no lien, because he has no inn, and the horse is not the appendage of a guest. "These very narrow and technical distinctions, however, ought not surely to be imported into any other system, in which it is not impera- tive to adopt them. It is not so with us. The law of lien in Scotland is founded on the principles of mutual contract in the civil law, which, with all due deference *for other systems, a're those of justice rj,c74Q-i and common sense, admitting in the abstract of no judicial de- L J nial. It is well explained by Mr. Uell, both in his Principles and Com- mentaries. In his Principles, § 1410, he observes, — ' It is not in every case that the mere circumstance of possession confers a right of reten- tion. It is a right which arises only, 1st, As the counterpart of a mutual contract ; or 2d,- By usage and common understanding in certain known, cases, in which for the convenience of commerce, it is held to be acqui- esced in and implied between the parties." And, in the following sec- tion, he lays it down, that ' special retention arises in the course of a par- ticular contract, and operates as a security for fulfilment of the counter- part." § 1411. " In his Commentaries, the learned Professor alludes to some of the English precedents before adverted to, and particularly to the denial of lien to the livery stable-keeper, and justly adds : 'In Scotland it would seem that lien would be given on the broad principle that it is the; 612 BOSS ON OOMMEROIAL LAW. resulting security for the actio contraria in all cases.' — Commentaries, vol. ii. p. 104. "It was argued at the debate, that if the lien now urged were sus- tained, it might lead to novel and embarrassing claims of lien — and that a gentleman's ploughman and gardener might as well seek a lien over his farming and horticultural implements, as the printer and engraver demand a lien over the plates given to them to print froin. The eases are palpably different. While labourers have a well-known preference for current wages, they have no such exclusive possession of any of their masters articles as to found a claim of lien, as the implements of a farm or garden are kept on the master's premises. But illustrations might be given from innumerable cases of mutual contract, of the extreme hard- ship and injustice that would be^inflieted, if parties who fulfilled their parts of the agreement were deprived of the retention hitherto deemed to be their unquestionable right by our law, to secure fulfilment of the part of the special contract under which they obtained possession. " It will accordingly be found, that the learned Judges of England have, both in earlier and later titnes, expressed a desire to give every r*7d.Qn extension to special liens, consistent with *the very strict rules L -1 by which they are restrained under their early usages and prece- dents. Thus, in the case of Kirkman, 6 Term. Rep. 17, Lord Kenyon observed, that it has been the universal wish of the Courts at all times to extend the lien as far as possible. In those which came before Lord Mansfield, he thought that justice required it, but he sometimes found that the rules of law were against it, and therefore he submitted, because in those cases the rigid rules of law were against the lien.' And in one - J ing to Sutherland, and handed to the printer. Well, then, his work- manship — the product of his skill and labour as an artificer, is the printed work — producing on paper that which is to be sold. That, it is admitted, he is entitled to retain until paid for. But on the plates he has bestowed no labour. They are not improved in value by his work — quite the reverse. He has their product, and may anticipate any other publication by selling these printed copies to p^ay himself. It is admitted that the lien must be wholly founded on the possession given for this special employment, and that employment was simply to throw off copies from the plates. Hence the object and purpose of the possession given was special, limited, and defined ; and I think this is an attempt to enlarge and alter on bankruptcy the character of posses- sion from a specific contract. I am quite ready to decide this case wholly on Scotch law ; but then, according to the best judgment I can form, after having read a great variety of English cases, I see no difference between the leading prin- ciples of Scotch and English law, although there are various instances of technical or artificial distinctions as to the details of some special liens in England, partly from custom, partly from too close an adherence to the terms in which old cases were expressed. Bell, in his Principles, states as the rules of the law of Scotland, I think most correctly, exactly the principles which, with some variance of expression, obtain in Eng- land. Hence I look, without scruple, to the case of Bleadon v. Han- cock, on the precise state of facts which occurs here as to stereotype plates ; and taking the correct and full report, (for I think we did not get anywhere from the opinion what the Lord Ordinary quotes,) I hold the principle stated by Chief Justice Tindal to apply as a correct exposi- tion of the principles which obtain in our law. Indeed the strongest authority which the defender could quote, was an older case in the law of England, Brook v. Wentworth, which I have carefully read m 3 520 BOSS ON OOMMEBOIAIi LAW. Anst. The case was this: — A bookseller agreed to publish, was to have a certain share of the profits, and interest on advances. Having made considerable advances, he refused to go on till paid. Then the r*7fim ^'1''^°'^ agreed *with another bookseller to publish, and there L J was a motion for injunction to stop publication. In this it is implied that the MS. was in possession of the auth'or, and had somehow got back into his hands. The Court merely intimated the inclination of their opinion, but recommended an arbitration, which was agreed to. There was no decision ; but the principle of the case cannot apply to the present. 1. It was not a question of lien at all. It did not in any degree countenance the retention of an author's MS. for the expense of printing. 2. The bookseller had, by a kind of joint-adventure carried on to a certain length, acquired an interest in the profits to be made from publication by the printing, which he had partly paid for, not only under the original stipulation for a share of the profits, but, still more, to repay himself his advances, so that he had many equitable grounds to plead as joint-adventurer, as factor or commissioner to publish the work on a very general and large contract, in order to prevent the author himself — there being no bankruptcy — ^from injuring him directly by breach of contract. I am not able, when the case is examined, to see its application to the present. We have not to consider here whether the printer can have any remedy by interdict against any use of the plates to its prejudice. The question here is one of lien only. It seems unnecessary to point out the extreme consequences to which the defender's doctrine leads ; for I am of opinion that his particular claim fails, both on general grounds and as a case of special lien arising out of the employment on which he obtained possession. Lord Medwyn. — I am for returning to the interlocutor of the sheriff of 2d October. I understand the claim by the advocator is to retain the stereotype plates put into his hands by Sutherland to print from, till he is paid the expense generally of the works printed from them. We have nothing to do with any other claim. And the present claim is not now under any special agreement, or any nsage of trade ; but it is now maintained at common law upon the broad ground of retention. Now, I quite recognise the right of retention by a debtor against a r*76n *"^^'^^''''' *^11 ^8 obtains payment or satisfaction *for a counter L J claim ; and chiefly in those cases where compensation could not be pleaded. Hence in 'debts, and I think to such cases it was originally applicable only, it is when the one of which retention is pleaded is not liquid. It has now been extended to corporeal subjects. But it is essentially necessary that the subject of the counter claim should be in the person of the party upon some lawful title, unfettered and unlimited in its use, either by special agreement, or by the nature of the contract which places it in his hands. Hence the general right of retention cannot be carried so far as has been pleaded. There are many limita- tions, and none so well recognised as this, that the money or property of the creditor must not come into possession of his debtor under any specific appropriation or temporary title of possession ; it must be in him free and unfettered, with nothing but an ordinary obligation to CONTRACT OF SALE. 521 account as for a debt on the demand of the owner. Thus, if the cus- todier have any counter demand against the other, he may plead reten- tion till this is paid or secured. It was on this ground that the case of Mein v. Bogle and Company was decided. They were purchaser and seller. The purchaser was indebted in a large sum for three previous purchases of sugar ; he made a fourth purchase, paid part of the price, but the article was not delivered when the purchaser became bankrupt. They remained undivested proprietors of the article. The seller was found entitled to retain the goods not delivered against the debt due by the bankrupt, till payment or security was given for it. This seems to me to be a very different case from the present, and resting on different principles. The article had never been delivered. The property had never passed to the purchaser from the seller, and it was held that he could not claim delivery without discharging the counter claims against him, which, being bankrupt, he could not do. But here, a machine is put into a workman's hands for the special purpose of performing an operation with it upon another substance, which is also furnished, and this manufactured article, the produce of the labour of the workmen with the machine, is to be returned to the proprietor, as well as the machine itself, on payment of the expense of the operation. Now, it is not disputed that the manufactured article the workman may detain *for the price of the labour bestowed upon it, but can he retain r^^fjon the machine also for the amount of this account ? The machine L J is not legally his property, as the sugar was in Mein's case. It is the undisputed property of him who claims delivery of it, and it was put into the other's hands for a limited purpose, and it is not there for any other purpose. For the expense of the manufacture, the law has pro- vided a special lien. He may retain the manufactured articles, on which be has expended his skill and labour, for this ; but not the machine itself, put into his hands for this temporary use. Even if it were sup- posed that the case of Harper was not well decided, I do not think it would tend to support the claim here made. I think we must go a great deal further than was pleaded in that case, which was, to retain the article for the expense incurred on similar quantities previously bleached, which might have been retained for this expense. For although a lien over goods manufactured or improved, and made more 'valuable, should be extended to a general balance of accounts, and not limited to the price of manufacturing the article retained, it would not warrant a claim against the machine with which the manufacture was made, because the goods on which the manufacture was made might be retained for a general balance. A lien over the goods manufactured, to whatever length it is carried, can give no coun- tenance to a lien over the machine specially put into the workman's hands to print from, in addition to the right to retain the whole he has printed from it. He has right to retain this, but has no right at com- mon law to any further security. In the case put, of a picture sent to an artist to copy, he will be entitled to retain the copy he has made till he gets the stipulated payment; but I cannot conceive he will have any right to retain the original, just because it was put into his hands solely 622 ROSS ON OOMMEROIAL LAW. for the purpose of copying it, and not to be retained, but returned immediately after having done so. Lord CocKBURN There are several liens that are rested on the usage of trade. But we need not trouble ourselves with this element at present ; -because the evidence that has been adduced in support of the r*7631 ^'i^^ °^ retention in this trade of *stereotype printing, is utterly '■ J undeserving of notice. Accordingly, it was most properly not adverted to at all at the bar. Nor do I think that we can proceed on the other ordinary ground of contract. There was certainly no special contract entered into between the parties to this particular agreement. They made no agreement for the regulation of the events that have occurred. Such events as a failure by the employer to pay, and a claim by the printer to keep the plates, probably never occurred to themj but whether it did or not, there is cer- tainly no evidence that they made any peculiar provision for it. It is said that there is a contract implied in the nature of the transac- tion, because, as the meaning was, that the bookseller was to pay, and that the plates were to be given back, it must be held to have been un- derstood, that if the bookseller should not pay, the plates might be re- tained. Now, if all that be intended by this be, that neither party anti- cipated anything except that the business would be closed successfully and in the usual way, in which case payment and re-delivery would have been the result — this is quite true. But if it be meant that a right to retain the plates must be held to have been the remedy provided for by implication, upon the bankruptcy of the employer, it seems to me that this is a very cl&av peiitio principii ; because there is not the slightest ground for introducing any implication inconsistent with law. All that can be said is, that the parties must be held to have intended to enforce the law against each other; and this just leaves it to be settled what the law is. If the law be, that, in the circumstances that have occurred there is no lien, then I am clear that a presumed agreement to dispense with the law, is not warranted by anything disclosed in the case. If it were enough that, in the ordinary course of business, payment and re- delivery were corresponding obligations, the result would be that there must be a lien in almost every case .whatever, because parties seldom transact on any other expectation, except that their transaction will be brought to its natural issue. There would be a lien wberever there was a debt. In this absence of contract and of usage, we must resort to principle and to authority. And where these are to be found we had better adopt them rtTftAT impli'^itly) ^^^^ distract ourselves by *abstract speculations or L ' J ingenious casuistry ; nothing is easier than to invent examples, which as they just resolve into the same case, are of little use even as illustrations. Now, on looking at the authorities, it seems to me, that however they may differ in other respects, they all agree in this, that the only ground (independently, I mean, of usage and agreement) on which a lien can be claimed by an artificer over the property of an employer is, that work or money has been expended by the claimant upon the property. This is OOMTBAOT 07 SALE. 523 the general doctrine of our institutional writers ; and I can discover no decision which either contradicts this doctrine, or rests it on a wider foundation. In principle, the case of Harper v. Faulds, which I do not conceive anything to have shaken, expressly confirms it. Mein v. Bogle so much relied on by the advocator, was not properly a case of lien. It was the retention by a seller of his own undelivered goods. This has no application, or at least a very remote one, to the circumstances before us. It appears from the case of Bleaden, that the law of England is against the advocator ; and this is not a matter on which that law ought to be altogether disregarded. But, confining ourselves to our own law, it is certain that arrangements whereby employers lend artificers the use of implements to work with, are quite common; yet there is neither any proved usage, nor any judgment, in the advocator's favour. These facts, joined to the institutional principle, that, to constitute a lien there must be money or work laid out on the article retained — are sufficient for the determination of the case before us. The plates in ques- tion got no money or labour given to them by the advocator. They were lent to him for a special purpose. In this situation, the circumstance that the debt was for work done with the plates, seems to me to be perfectly immaterial. If retainable at all for such a debt, they would have been equally liable to be retained for any other debt. In other words, wher- ever a creditor is in possession of an article lent to him, though for a special purpose, by a debtor, the advocator's principle implies that there is a lien over that article. If this last be not the law — which it certainly is not — I can make no distinction between it and the advocator's plea in the present case. *It has been urged, that trade requires liens to be favoured, pygc-i I am not satisfied of this. But at any rate, it is only a conside- '- -■ ration for the Legislature, or for parties in contracting. When the ne- cessities of trade have not made new liens grow up, I do not conceive it to be the business of a Court to introduce them. Lord MoNOKEirr. — No doubt this is a case of importance, but I only mean to speak to the points brought before us in the argument. I con- cur in the finding of the interlocutor, of a special right of retention. Beyond that nothing is decided ; and though I concur in the finding, I do not concur in all the views expressed in the Lord Ordinary's note. We are pressed by a judgment of an English Judge of great eminence, and for whose judgment in English law no man entertains greater regard than I do; but, with all deference, that is not the subject of our delibe- ration. The question is,. How this matter stands by the law of Scotland ? It may be better or worse than the law of England. It has often been found not to be so perfect, but it has sometimes been found to be the better. We have, not to deal with that. The only question for us is, how our own law actually stands. I, therefore, in the first mstance at least, lay aside entirely Chief Justice Tindal's Nisi Prius judgment on this very question. I do not pretend to understand the principles of the law of England on such a subject, but I see enough of it to know that it is occasionally trammelled by technical difficulties and forms of suit, which do not easily permit the free development of broad principles for 524 ROSS ON OOMMEBOIAL LAW. the solution of such a question. I may be entirely mistaken in this — probably I am — but whether so mistaken or not, I cannot be wrong in this, that my duty is to decide according to the law of Scotland, which I hope I in some measure understand ; and that, though ever desirous to obtain all possible light from other quarters, I must still remember that it is by the law of Scotland alone that I am bound to rule my judgment. Now it is clear to me, and I humbly think cannot really be a matter of controversy, that the law of retention under the law of Scotland has r»7RRi ^^^^ established on principles perfectly *distinct from the law of L J lien in England. I think that Mr. More has demonstrated this, and so far I entirely go along with him. But it is a different question how far our law of retention has been carried, or ought to be carried, in commercial relations. I just go thus far, that as it is plain that the law of England was essentially different from our law in this particular point in its original formation, we should rather be guided by our own lights in the very peculiar question now before us, than by any single, and possibly hasty decision, even of the most eminent Judge in England. I beg leave to say, that I have no intention, in this question, of enter- ing into the much agitated question, whether in any ordinary case a party, having goods of his correspondent in his possession, deposited for special purposes, may, on bankruptcy, retain them in security of general balances arising from entirely separate transactions. I find that very high autho- rities in the law have differed on that subject ; and if I were obliged to choose between them, I have no hesitation in saying, that I think the opinion of President Campbell the soundest and the most profound of all those delivered, deep and powerful though the rest were, in the case of Harper v. Eaulds. The case of Mein, &c., does not appear to me to con- tradict it. But I must still think it to be a very great mistake to sup- pose, that that will settle the present case. The case which occurs is novel in the facts, though not, as I think, in the law applicable to it. There is no precise parallel to it in the special circumstances ; but look to how the question of retention has been laid down. We derive the principle from the civil law. Voet, (16, 2, 20,) puts it thus : — " Plurimis autem in causis retentio usum invenit ;" and so he gives some examples, among which is the right to retain " merces" for the contribution iotj actus — a case perfectly clear of the principle of labour bestowed on the subject ; and then he says — " Prsecipue reten- tioni locus ob id quod occasione rei retentae debetur ; veluti ob impensas in earn factas, aut opificia, vel artificia circa earn prsestita ; qua ratione fuUones, sartores," &c. Very clearly Voet states these cases only as ex- amples of a principle which are of most ordinary occurrence. Our Mr. Erskine gives it in the same manner — " This right is most frequently P,-„Y-i pleaded by *those who have bestowed either their labour or their L -I money on the subject sought to be retained ; and it commonly arises in that case from the mutuM obligations which naturally lie upon the contractor," 3 Ersk. 4, 21. These are the most frequent cases. But surely Mr. Erskine does not exclude other cases, arising out of the nature of the contract. Mr. Bell (Principles, § 1410) states it in the same way : — " It is a CONTRACT or SALE. 525 right which arises; 1. As the counterpart of a mutual contract, &c. Within these limits, retention may be described as a right to retain a subject legitimately in one's possession, until a debt shall be paid, or an engagement performed, the Jus exigendi of which is in the possessor." Nothing can be better, unless it be Sir Hay Campbell's rule in Harper V. Faulds; Bell's 8vo Cases, p. 471, — "We have the term retention from the civil law. I conceive it (retention) to mean a right of refusing delivery of a subject, till the counter obligation under which the subject was lodged be performed. It is acknowledged by all our authors and decisions, mutual obligations must be performed hinc inde; and so retennon arises, from the very nature of the obligation, to the extent of the labour bestowed. Therefore I think the claim good to an artificer to this extent ; it is part of the conductio operarum. Such a case as the present was not in the view of that very profound lawyer. But the question is, whether the present case is not as clearly as possible within the principle of conductio operarum. The distinction between general and special lien is probably as Mr. More maintains on very learned grounds, new to the law of Scotland. But I do not intend, in the present question, to rest any opinion on the controversy on that point. All I maintain is, that the doctrine of reten- tion, in the law of Scotland, rests on broad principles of equity of very old establishment, sufficient, as I think, to sustain the claim in the pre- sent case, although it is not placed on work done for the improvement or alteration of the thing itself submitted to the printer. And indeed I cannot record Sir Hay Campbell's own opinion in the case of M'CuUoch, 1794, 1 Bell's Illustrations, p. 461, without seeing that he had no intention of limiting the right of retention within the small limits of the actual work done upon *the subject, (Passage r^f.-joo-i from the Illustrations read.) It appears to me, that he clearly L J looked mainly to the contract ; and would have had no doubt, that what- ever obligation was within the contract, must be within the right of retention arising out of it. Now, if this be judged of on those general principles as they stand in the law of Scotland, and without disturbing anything that was decided in the case of Harper v. Faulds, it seems to me that the present case just depends on a different application of the same principle to a case which, though new in the facts, is distinctly within the rule of law and equity. The contract here is a contract of locatio operarum, characterized by peculiar circumstances. And what is it ? On the one side, the printer, Brown, undertakes to receive into his possession the stereotype plates — to print from them the work intended, to deliver the copies so printed, and to re-deliver at once whatever else was furnished, and the stereotype plates, upon and from which he was to print the work. On the other side the employer, binding himself to furnish these materials and faci- lities, and the paper necessary, clearly binds himself also to pay the stipulated price for the labour, skill, ink, use of implements, and every- thing belonging to the printer's trade. March, 1855.— 34 526 BOSS ON OOMMEKCIAIi LAW. Now, is not this all one contract ? If the printer claims retention for any one of the things above mentioned, is it not for implement of the intrinsic parts of the contract ? And if he claims it on any of the arti- cles or property thus placed or remaining in his hands, is it not a claim on that which forms an intrinsic part of the contract ? I assume that he is not to go out of the contract. He is not to retain for anything extraneous to it. But is it not most vitally intrinsic to it, that the performance of the contract essentially depends on the possession of the stereotype plates ? There is no contract without it. They are to be used for no other pur- pose but that stipulated. I say that the printer works on them, in the strictest sense. He applies to them the means of producing the impres- sions which form the work. And it does appear to me to be a very narrow view of such a question, just to assume, because it is so said in the mere statement of examples of the principle, and may be so r*7fiQn *^^''''it^^ under technical rules in England, that because he does L -1 not actually produce anything improved or different in the plates themselves, he shall have no right of retention for the work actually done from them. I see no principle for such a technicality. The case of working on an article is only given as a common example in the civil law and the law of Scotland. If the law of England has made a tech- nical rule of what was merely an example, or holds that there can be no retention under a new state of facts, without proof of a general usage in that very matter, I cannot follow it, but must proceed on the broader principles of our own law, as I understand them. Do you go on this narrow view in the undoubted law of retention generally ? What is the writer's hypothec but a part of the law of retention ? But what would be thought of the argument against a con- -spieyancer's claim for retention of his employer's title-deeds, limited only to his business account, that he had only worked from them, and not upon them? He used a disposition in order to take seisin on it ; but would you say he only got it for that special purpose, and though he might retain the seisin taken on it, he could not retain the charter or disposition from which he took it ? When was this doctrine heard of in the law ? So, also, the case of retention for grass-mail is clear in our law, though rejected in England, on what must appear to us a rather fanciful dis- • tiuction. And the difference between the case of an innkeeper claiming retention of a horse in his stable, and that of a livery stable keeper, is far from being evident to any lawyer, who should judge by the principles of the law of Scotland simply. But the idea of confining the right of retention under a special contract alone to the mere example of working on a moveable subject, appears to me, with all deference, to be a refine- ment approaching to a fallacy. If we are positively to be guided by one English decision in such a matter there is no more to be said. But if the existing principles of the law of Scotland are to be followed in their fair scope and effect, it is clear to me that we have no such constrained principle ; but that, in the peculiar case which here arises, the right to hold the plates on which the printing took place, is just as clear as if the work done .had consisted in an operation affecting the state or sub- OONTKAOT OT BALE. 527 stance of the plates •themselTes. It is part of the contract on rif>,',m which the obligation for the price of the plates arises. The L J claim for re-delivery of the plates depends on that contract. It is part of the actio contraria, even as explained by President Campbell. There is nothing extraneous in it. It is granted, and decided even in England, that a printer has retention of a manuscript from which he prints j and why not of stereotype plates, which in general, when used, stand in place of manuscript ? I leave out of view all the questions about general and special liens. All authorities in our law seem to me to agree, that whatever is part of the contract founds a claim of retention. Here the pursuer demands delivery of the plates, solely on the ground that it was pars contractus that the defender should re-deliver them when the work was done ; and the answer is, — ^True, but it was also pars contractus that you should take the prints when executed, and pay the price of them. Can you ask fulfilment in one point, without implementing the plain counterpart of the contract ? Neither can I find anything in our law which limits the application of the principle of equity, in regard to a special case of contract of recent origin plainly within it, by any necessity of proving a positive long-continued usage in the very thing. It will be observed, that this is all free from the eflfect of the cases of deposit for special purposes, where retention for extraneous debts has been pleaded. They have .no application to the matter. The simple equity of this case is, in my judgment, equally clear with the law of it. The printer engages to print, in a manner laid down to him, an edition of a particular work ; and by the contract he has a right, as well as an obligation, to complete that operation. He does complete it. Could anything, then, be more unjust than that the employer should then be allowed to say to him — Deliver to me instantly the stereotype plates ; I cannot, indeed, or will not, pay you the stipulated price of the work now done. You may keep the prints which you have made ; but, in the meantime, I can print a cheaper edition from the same plates, which will render those you have of no value to my estate, bankrupt or not. Observe, that the printer can make no use qf the prints, as he cannot sell them ; *and when bankruptcy comes, he may have rit'j'jY\ no remedy but a mere ranking with general creditors ; and even L J if there be no bankruptcy, he is left to an action at law, while implement of a part of his counter obligation in the same contract has been rigidly exacted. It may be material also to see whether delivery of the plates could be demanded while the printing is still in progress. If the possession of them were not part of the contract, what should hinder this ? Yet it would be extreme injustice. And if such possession, and the right to continue it to the end, are part of the contract, I see not on what prin- ciple the printer can be required to part with it until he has finished the work, and is ready to deliver all on payment of the stipulated remunera- Their Lordships altered the interlocutor reclaimed against, repelled 528 ROSS ON OOMMEECIAL LAW. the reasons of advocation, and remitted the cause simjpUciter to the sheriff, with expenses. The case of Bleadon v. Hancock, 4 C. & P. 152, was an action of trorer for stereotype and other plates, at the instance of the assignee of a bankrupt, against a party with whom they had been deposited by the bankrupt, for the purpose of printing for him certain books therefrom. The defendant claimed a lien over the plates, on account of the sum due to him for printing from them. Tindal, 0. J., in his summing up to the jury observed, " This is not the case of a lien claimed by a person who has bestowed labour, or expended money upon an article, and who may detain it till he is paid. Everybody knows that by the common law, a a man may detain the commodity on which he has bestowed labour and money. But this is a claim of a larger lien, and those who seek to establish such a lien, must show a course of dealing as general and uniform, that persons must be supposed to form their contract totally on the understanding that there is such a usage. And it is for you to say, whether in this case any such uniform usage has been proved to your satisfaction. You ought to be satisfied that it is estab- lished affirmatory before you find in favour of it." The jury found against the claim of lien, and gave their verdict for the plaintiffs. r*7721 *^H^ EXERCISE OF THE RIGHT OF STOPPAGE IN TRANSITU '■ DOES NOT RESCIND THE CONTRACT OF SALE, BUT THE SELLER REMAINS CREDITOR FOR THE PRICE, AND IS ENTITLED TO USE ALL THE REMEDIES OF A CREDITOR. STOPPEL V. STODDAKT. Nov. 15, 1850.— S. 13 Dunlop, 61. JuRQEN Stoppel and Son of Altona, shipped a cargo of linseed cakes to the order of John Martine, junior, brewer in Haddington. At the same time they sent an invoice of the shipment, amounting to £775, 7s. Qd., a bill of lading blank indorsed by them, and a bill for Marline's acceptance for the price, at three months' date. On the 17th November, 1847, Martine indorsed the bill of lading to David M'Laren and Com- pany of Leith, who drew upon him at the same time for £825, and on the following day transmitted to him a letter of credit for £810, being the proceeds of his acceptance. M'Laren and Company averred that they had made this advance upon the cargo specified in the bill of lading which had been indorsed to them. Stoppel and Son, on the other hand, maintained that the advance had been made to retire a previous acceptance for ^6847, granted by Martine in favour of M'Laren and Company, and that its proceeds were entirely applied to that purpose. On the 4th Decem- ber, Martine intimated to his creditors his insolvency, and his intention to apply for sequestration. M'Laren and Company denied that they were aware of the state of his circumstances at the time of the indorsa- tion of the bill of lading. Martine was sequestrated on the 13th December, 1847. On the intimation of Martine's bankruptcy, and before the arrival of the cargo in Leith, a note of suspension and interdict against him, founding upon the fact of his insolvency, was presented by Stoppel and OONTRAOT 01' SALE. 529 Son, for the purpose of interdicting the delivery of the cargo to him, and 80 saving their right of stoppage in transitu. The Lord Ordinary granted interim interdict. Martine was sequestrated under the Bank- rupt Act, and appearance was entered by M'Laren and Company in the Bill-Chamber. After some procedure, the Court pronounced an inter- locutor *reoalling the interdict, on M'Laren and Company find- r^-j'jo-i ing caution for the proceeds of the cargo, but limited to the L J amount of the original price. Thereafter Stoppel and Son, with the concurrence of George Stoddart, trustee on Marline's sequestrated estate, raised a reduction of the bill of lading and transference of the cargo against M'Laren and Company, and this action was conjoined with the suspension. Stoppel and Son pleaded, 1st, Martine having become insolvent while the price of the cargo remained unpaid, the pursuers were entitled to stop the cargo in transitu. 2d, The defenders were not bona fide onerous holders of the bill of lading, and were not entitled to defeat and interrupt the right of stoppage, and claim to the cargo competent to the pursuers as sellers. 3d, The transference of the bill of lading was reducible as fraudulent at common law. 4th, The transference was reducible as contrary to the Act 1696, as being in satisfaction of a prior debt. The case went to trial on the following issues : — " 1. Whether, on or about the 17th November, 1847, the said bill of lading was fraudulently, or without val^e, indorsed or transferred by the said bankrupt to, and received by, the defenders, to the prejudice of the legal rights of the said Jurgen Stoppel and Son ? « 2. Whether, on or about the 17th November, 1847, the said bill of lading was fraudulently indorsed or transferred by the said bankrupt, and received by the defenders, to disappoint the legal rights of the creditors of the said bankrupt?- "3. Whether, on or about the 17th November, 1847, or at any other time within sixty days before the date of the said sequestration, the said bill of lading was indorsed or transferred by the said bankrupt to the defenders, in security or satisfaction of a prior debt, contrary to the Act 1696, cap. 5 ?" The jury found for the defenders on the first and second issues, and for the pursuers on the third issue. The pursuers moved the Court to " apply the verdict ; to interdict, or render the interdict perpetual, in terms of the *prayer of the r#'j>j^-i note of suspension and interdict ; to reduce, decern, and declare, L J in terms of the conclusions of the summons of reduction ; to find the defenders liable to the pursuers in the expenses hitherto incurred." On the other hand, the defenders gave notice of motion " to apply the verdict ; and in respect of the verdict in favour of the defenders, and against Stoppell and Son, on the first issue, to repel the reasons of suspension and interdict at the instance of Stoppel and Son and their mandatories, and find the letters orderly proceeded, or dismiss the pro- cess of suspension and interdict. Also, in respect of the verdict in favour of the defenders on the first and second issues, to assoilzie them 530 ROSS ON COMMERCIAL LAW. from the action of declarator and reduction, in so far as concerns the conclusions for declarator, that the writings called for were fraudulently elicited or impetrated ; and for reduction and payment at the instance of Stoppel and Son : to find Stoppel and Son liable in expenses, and, in the question between the defenders and the trustee, to find no expenses due to either party." No notice of motion was given by the trustee. The Court ordered minutes of debate. Stoppel and Son pleaded, — The indorsation of the bill of lading having been set aside by the ver- dict of the jury, no matter upon what grounds, there was no bar to the exercise of their right as sellers to stop in transitu. Martine's trustee pleaded, — The failure of the pursuers to obtain a verdict on the first issue, which regarded their right as sellers, entitled the general body of the creditors to the benefit of the verdict returned upon the third issue, which reduced the indorsation as contrary to the Act 1696. The defenders maintained the same plea with the trustee. At advising, on 8th February, 1850, — Lord MACKENZtE. — There is a general point in this case as to which I am not satisfied; in fact, it has not been argued at all. That point is, what is the nature of stoppage in transitu f Is the stopper a creditor with a power of getting a preference ; or is he a seller with power to P^„_p.-| rescind the bargain ? If there *is any authority on the point, L J that the efiiect of stoppage in transitu is not to rescind the bargain, it is very much in favour of the pursuers' argument ; but it is a very subtle question. It has always been taken for granted, that, in this matter, the Eaglish doctrine came upon us in full force; but Presi- dent Blair was not of that opinion. Lord President Boyle. — No doubt the point which Lord Mackenzie has alluded to requires to be argued; but, for my part, I am not able to get over the difficulty arising from the position the case is in. Stop- pels had a very distinct, course to follow. They -wanted to stop in tran- situ, and tried to get the stoppage enforced by interdict; but, instead of insisting on a record being made up merely on the question of stoppage, they were advised to concur with the trustee on Martine's sequestrated «state, and they accordingly joined with this trustee, who had merely an interest to look after that estate. Then, what is done ? Stoppels and Stoddart raise this summons together, the trustee not merely giving his concurrence, but insisting in the action "for his own interest as trustee." He is as much pursuer as Stoppel and Son. Then this action is con- joined with the suspension, and a record is made up, in which Stoddart's interest as trustee is not neglected. Then it is sent for trial on the issues before us, and the jury return a verdict for the defender on the first two, and for the pursuers on the third. Now, the powerful argu- ment of the pursuer is to the efi'ect of shaking himself clear of all but the third "issue, as if the simple ease before your Lordships was to say what is the efi'ect of the Act 1696. But, can this case be dealt with in that way ? We must look to the record as it has been made up, and we see that this is a conjoined case and a conjoined issue. Then a verdict is returned on this conjoined issue; and, I ask, what rights have the parties who in that action are conjoined as pursuer/? The issue was CONTEAOT or SALE. 531 raised in the reduction ; and where are the grounds on which I can deny all right and benefit to the trustee? The pursuer should have had a special issue for himself. How can he say that Stoddart is to have no benefit from the action, when he was conjoined as pursuer from the beginning ? *Lord Mackenzie — 1 am not much moved by the difficulty r^^ng-. stated by your Lordship. My solution of it would be, that even l i if the trustee had been the pursuer alone, it would not make any differ- ence ; for if Stoppel had a preference, the trustee, who sues for all the creditors, sued for him, for I do not see that a reduction under the Act 1696 cuts off the rights of the preferable creditors. The taking the trustee in as joint pursuer, therefore, cannot make any difference ; for, in tl»is view, Stoddart would just vindicate the right of Stoppel as a preferable creditor. But at the bottom of all this matter lies the ques- tion. Whether Stoppel claims as creditor or seller? If he is a seller claiming his own, the trustee is an adverse party, and their position as joint pursuers is somewhat awkward; and then, if in this joint action they get a verdict, I cannot see that one of them is to get the whcle benefit. Lord FuLLERTON. — I am inclined to take much the same view as Lord Mackenzie. I think the case has been much complicated by two parties with distinct, and somewhat diverse interests, being conjoined in one action. The question now is. Which party, under this issue, is entitled to the benefit of the verdict ? The action is not brought by Stoppel alone, but at the instance of Stoppel, and of the trustee also for his own interest. Then the summons goes on, and is of a very peculiar character. Some of the conclusions are peculiar to and for the benefit of Stoppel, and some peculiar to the creditors ; and then there is this last on the Act, 1696, which is so carefully worded, as to seem contrived for the express purpose of keeping them together. It proceeds on the assumption that Stoppel and Son were to keep the character of creditors, as well as of parties stopping in transitu. Then, when we come to con- sider the issues, nothing can be more careful than the way in which the third issue is worded. That is the only issue now before us, and I think there is nothing to prevent the Court considering in whose favour this is decided under this summons. The question comes to be, Is the right of stoppage so inconsistent with the character of creditor, that they cannot exist together? or is the right of stoppage to be considered as a right of lien ? That argument was urged with great ability, by the pursuer; but, on *the other side, very little is said about it. The cases on the r:(:777T other side go almost altogether on the form of the action. I L J think more might be said for their view. There are many authorities both in England and America; but I cannot consider the point settled in Scotland, for Mr. Bell is on the other side,— 1 Bell, 231. He dis- cusses the very point, and refers to several cases. At present, I am inclined in favour of the jJursuer, but it is a point which I could not decide without further consideration. When they talk of the supposed incongruity of the seller claiming as creditor, and yet insisting on his right of stoppage, I think there is just as much incongruity in pursuing 532 ROSS ON OOMMEROIAL LAW. ' a reduction of an indorsation, and yet maintaining, that to a certain extent it shall remain good, and be available to the creditors. If there remains nothing but an unindorsed bill of lading, what right can these creditors have to it ? "Therefore, I think there is much in Lord Mack- enzie's view, that, if the action had been brought by the trustee alone, he would just have let in Stoppel and Son. No doubt it is said that the reduction is not absolute. But how can he who reduces the indorsation, maintain that it exists to any extent ? It seems to be argued that the indorsation has not gone altogether; that it was not- for themselves, but for the general body of creditors ; and that M'Laren and Company were converted into a sort of trustees for the others. I should like more argu- ment on this point ; for tjiough it is laid down by Mr. Bell as decided, I don't think it is so ; I don't know that it has been decided evqn in England. Lord Jeffrey absent. The Court appointed the parties to be farther heard. Stoppel and Son pleaded The trustee and defenders contend that the indorsation of the bill of lading having been reduced, under the Act 1696, the cargo became divisible among the general body of the creditors, while the pursuers, the vendors, maintain that it belongs entirely to them. A vendor who has not been paid the price is a credi- tor of the bankrupt, and has all the remedies of a creditor. It has no doubt been questioned whether, assuming the vendor to be a creditor, r*778T ^® ^® *entitled both to resume possession of the goods and to L J claim as a creditor for damages against the divisible estate ; but the question here is not whether the vendor is a creditor, but whether a vendor, who has not recovered possession, is debarred from claiming on the divisible estate, because he has used the remedies of a vendor ? or whether, by attempting to reclaim the goods, he rescinds the contract and ceases to have any claim as a creditor ? The contract is not re- scinded, nor does the vendor cease to be a creditor until such time as, by using his remedy, he recovers the goods, and has got them, or the price which is their equivalent, in his possession. There is no ground for maintaining that the creditor in a contract of sale has, by recovering the goods, lost his claim to damages if he can qualify damages. If he had never parted with the possession, there is no doubt that he is entitled to damages for nonimplement of the contract; but goods in course of transit are not delivered. They are still so much in the vendor's posses- sion, that he can by timeously using his right of stoppage put himself in the position of never having parted with them. If so, can it be said that he loses his claim to damages from nonimplement, whether arising from the difference in markets or in any other way ? The vendor does not rescind the contract by stopping in transitu ; Wentworth v. Outh- waite, 10 Mees. & Welsh. Exch. R. 436, 452. Till the goods are re- covered or the price paid, the vendor is a creditor in the sense of the Act 1696, and any creditor is entitled, independently of the trustee, to exercise the remedies of the Act, and reduce any preference granted in contravention of it ; Forbes v. Eorbes's Debtors, Jan. 17, 1715 ; M. 1124 ; Shaw v. Hall, Nov. 17, 1747 ; M. 1150 ; 2 Bell, Com. 210 ; OONTRAOT OF SALE. 533 Wright V. "Walker, March 7, 1839 ; 1 D. 641. The pursuers, as credi- tors of the bankrupt, are thus entitled to reduce, under the Act 1696, the couTeyance which barred their preference. The indorsation having been reduced, the goods do not belong to the indorsee. They must either belong to the seller or the bankrupt. If they belong to the bankrupt, under a contract which the seller partly implemented, the seller is a creditor under that contract, and is entitle to take advantage of the verdict on the issue under the Act 1696 ; and so, to rear up the security afforded by bis right of stoppage, which is just *a weaker sort of lien. The trustee, after having induced the r^w^q-i pursuers to use this right in conjunction with him, is not entitled L J to turn round upon them and say that they used it to their own detri- ment, They could have used it without his concurrence, and, moreover, although the trustee is not entitled to create a preference in favour of any creditor, he is bound to administer the estate with regard to existing rights, and to aid the pursuers in vindicating their preference ; Stein v. Hutchison, Nov. 16, 1810, F. C. ; 1 Bell, Com. 231. The pursuers having thus succeeded in reducing the indorsation, as they were entitled to do without concurrence of the trustee, are entitled to the full prefer- ence secured by the right of stoppage in transitu. M'Laren and Company pleaded The first inquiry was whether the goods were stopped in transitu ? for the mere right to stop will not avail the seller, unless it has been exercised by some particular Act. It was here attempted to exercise it by the application for interdict. If the in- terdict was granted on an erroneous statement, which has since been negatived, it must be held that the interdict should not have been grant- ed, and the state of possession must be the same as it would have been if it had not been granted. The interdict was granted on the ground that Martine was insolvent, and that M'Laren and Company had acquired a fraudulent preference. The verdict of the jury negatived this statement, and the indorsation was reduced solely on the ground that it was in con- travention of the Act 1696. But interdict could not have been granted on this ground — 1st, Because in point of form a declaratory action was necessary to establish the contravention; and, 2d, Because Martine, though insolvent, was not legally bankrupt. The interdict, therefore, should not have been granted, and thus the right of stoppage had not been effectually exercised. The pursuers argued, that when reduction was obtained under the Act 1696, -the subject was set free only in so far as it was not attached by prior preferences. That was conceded, provided the preference was acquired before construqtive bankruptcy ; and the Court was thus brought back to the question, whether the preference had been validly constituted. The preference was not validly secured by the interdict, and the pursuers had *not de facto resumed possession. r^^gQ-i By the law of Scotland, when the contract of sale is so far com- L pleted as to create an obligation, there are still two things to be done towards its completion,— 1st, Delivery by the vendor; and, 2d, Payment of the price by the vendee. The property remains with the vendor till delivery; traditionilms, non nudis pactis, transfertur rerum dominium. In England, the contract passes the property, and there is thus an es- 534 BOSS ON COMMERCIAL LAW. sential distinction between the laws of the two countries. With us, be- fore delivery, the seller may be creditor in an obligation, — he may be creditor for damages for breach of the obligation; but till delivery he is not a creditor for the. price — which is the subject of the present compe- tition. Until delivery, the obligation to pay the price does not emerge. While the goods are subject to retention, i.e., while they are in transitu, there has been no delivery. If, therefore, before the vendor puts himself in titulo to demand payment, he exercise his right of retention or of stop- page, on the ground of breach of contract by the vendee, he puts an end to the contract under which the obligation to pay the price arises. There is no difficulty in Scotland, as in England, from the doctrine of vesting and revesting, because with us the vendor has never been divested. The vendor may be a creditor for damages for breach of contract, but he can- not at the same time be creditor for the price, which is an obligation arising from the fulfilment of the contract. If the vendor resold the goods at an advance, the vendee could not claim the surplus price, — simply because the contract was at an end. The right of stoppage is thus exercised by the vendor, not as a creditor, but as a right belonging to him as seller under the contract. It is a right of a higher order than any competent to a creditor. It is not of the nature of lien, 1st, Because the goods are his own and not the vendee's; 2d, Because the goods are not in his possession. In Scotland, if the vendee becomes unable to implement the contract, the vendor may refuse to implement his part of it, justifying his failure by the previous failure of the vendee. In Eng- land, he can hardly even do this; Blackburn on Sale, p. 325; Blozam V. Saunders, 4 Barn. & Cress. 941; and Bloxam, ib., 951. The great difficulty in England arises from the fact that the property has been vest- r*78n ^"^ ''^ ^''^ vendee, and the stoppage re-transfers *it; Gribson v. L -1 Carruthers, 8 Mees. & Welsh. 336; Wentworth, 10 Mees. & Welsh. 436; Jenkins, 8 Scott's New Reports, 522; but that difficulty does not arise in Scotland, and the authorities look upon the exercise of the right of stoppage as an annulment of the contract, 2 Bell, Com. 230 ; More's Notes to Stair, p. 90, Smith v. Drake, March 9, 1809, F. C. The infer- ence from all the authorities is, that the right was competent to the pur- suers as sellers and not as creditors. They were bound to elect one or other character ; and they elected to take the remedies of sellers. They never completed the contract, and thus they never came into the position of creditors. They were, therefore, not entitled to sue upon the Act 1696, and they cannot take advantage of the reduction under it. The Trustee pleaded. — The pursuers must show not only that they were creditors, but that they had a preference independent of the Act 1696. Laying the statute out of view, it was found by the verdict of the jury that the pursuers had established no valid ground of redaction. The indorsation having been set aside solely on a ground which was pleadable by the other creditors as well as by the pursuers, and in an action to which the trustee, for behoof of the whole creditors, had given his concurrence, it must follow that the trustee for the whole creditors should be preferred to the subject of competition. Lord President Boyle. — On reconsideration of the arguments in this CONTRACT or SALE. 535 case on the application of the verdict to the three issues that were sent to trial, — though the discussion has been conducted with great ability, and has embraced a very wide field of argument, accompanied by refer- ence to English authorities and decisions, — I am disposed to take a short and plain view of the case, as sufficient for the opinion I have formed. The right of a seller to stop goods in transitu, the price of which has not been paid, or offered instantly to be paid, being thorbughly fixed in our law, though originally adopted from that of England, the question now before us is. Whether Messrs. Stoppel, and their mandatory, have duly exercised that right in regard to the cargo of linseed-cake in ques- tion ? The transaction *of sale being completed abroad, and the r«709T cargo shipped, a bill drawn for the price, and a bill of lading in L ' J reference to that stipulated price, was transmitted to Martine, the pur- chaser, at Haddington, blank indorsed by the vendors; and before the price was paid, the mandatory of Messrs. Stoppel got notice, that on the 4th and 6th of November, 1847, Martine had addressed circulars to his creditors, notifying his being compelled to stop payment. On this an application was made for suspension and interdict against the captain of the vessel delivering the cargo either to Martine, or to any person on his account or behoof. This was an unquestionably competent mode of exer- cise of a right of stoppage in transitu; but it being afterwards resisted by M'Laren and Company, founding on the bill of lading as indorsed to them by Martine, to whom it had been sent from Altona, and for value, as they alleged — an action of reduction was raised for setting aside that indorsation, both on the ground of fraud at common law, and as in vio- lation of the Act 1696, (Martine having been sequestrated as a bankrupt on the 13th of November,) the pursuers of that action being Messrs. Stoppel and their mandatory, with the consent and concurrence of the trustee on Martine's sequestered estate, and also the trustee himself, for any interest that he held. The process of suspension and interdict having been subsequently con- joined with the reduction — after an arrangement for the disposal of the cargo on caution, the three issues were sent to trial, and a verdict returned in favour of M'Laren and Company on the two first, and in favour of the Messrs. Stoppel, and the other pursuer on the third issue : — and we are now to determine what effect is to be given to it. My opinion, on full consideration of the case, is, that the right of stoppage in transitu was duly and timeously exercised by Messrs. Stop- pel, and that they are entitled to the full benefit of it, to the effect of recovering the stipulated price of the cargo. I hold that, on discovering the situation in which Martine stood, on the very brink of bankruptcy, (and which was fully evinced in a very few days, by a sequestration on his own application,) and when the price of his purchase was neither paid nor offered to be paid, the vendors were acting in the legitimate exercise of their right, in applying for interdict as they did ; and as *it was only because the indorsation of the bill of lading was pi-gg-i brought forward by Messrs. M'Laren as a bar to their right, and L J as a ground for their, themselves, demanding delivery, that a reduction 536 ROSS ON OOMMEROIAL LAW. was resorted to — if it has led to the setting aside that indorsation on any ground whatever, and the reduction is not now contested by the indor- sees, it necessarily follows, that the impediment to the full operation of the right of stoppage has been removed, and therefore it must have full Sfect. As to the verdict of the jury establishing that there was no actual fraud in the conduct of M'Laren and Company, it is undoubtedly so — and, as far as the consideration of their character as merchants is con- cerned, the finding is completely satisfactory. But still it has been established by that same verdict, that the indorsation in their favour of the bill of lading, had been granted within sixty days of Martine's actual bankruptcy, and that indorsation is therefore entirely cut down, and must be viewed as altogether nugatory. I own I was at first a little embarrassed by the circumstance, that the trustee on Martine's estate had joined in the reduction as a pursuer, thereby indicating that there had been a union of interests between him and the vendors. But, on farther consideration, and keeping in view that the vendors' right to stop in transitu stands on the clearest founda- tion, and, but for the indorsation of the bill of lading, must have been fully effectual to the vendors, as still creditors of Martine for the full price, to the exclusion of all Martine'* other creditors whatever, and would, in fact, have prevented the cargo in question from ever coming within their reach, my diflSculty is now removed, and I think that the Messrs. Stoppel alone are entitled to the benefit of the reduction, keeping in view the circumstances under which that reduction has been obtained. The views I have thus shortly expressed appear to me to be warranted by our own law, as expounded by Mr. Bell, and the cases referred to by him; and I have not felt myself justified in entering into consideration of the peculiar rules or course of decisions of the law of England — although I have attended to the able arguments that were urged, and have read with attention the cases that were founded on ; but as none of them present any such feature as arises in this case, from the application r*7841 *°^ '^^ Scottish Statute 1696, 1 do not consider that they can be ■- J held as authorities for the decision of the present case. Lord Mackenzie — I concur. In the first place, it seems quite clear that the sellers of the goods in question, Messrs. Stoppel and Son, were creditors, in any view of the case. They were creditors for the price, and they were creditors in an obligation under the contract of sale ; but it is enough to say that they were creditors for the price. Then, in the second place, as they were vendors, they had a clear right to stop in tran- situ for recovery of the price. This power was in effect a security for recovery of payment of the price; and that security was in them — they were legally vested in it. Then it appears that this security has been made use of by them legally and effectually. There was a stoppage in transitu, by which, as far as the goods would go, they would have made effectual the payment of the price. But in this case an attempt was made to defeat this security, by an indorsation of the bill of lading to a prior creditor of the purchaser, to whom it was indorsed in security of a prior debt ; and this was done OONTEAOT OF SALE. 537 within sixty days of the bankruptcy of the purchaser. Without looking further, it appears to me that that was a breach of the Act, 1696, and that the indorsation was a conveyance of a security to one party in pre- judice of another. On that ground, I think that the indorsation was liable to be annulled ; and it has been annulled by the verdict of the jury. They have found, on this ground, that it was reducible, and it stands reduced under the Act, 1696. That being the fact, the case stands as if the indorsation had never been made ; it must be taken out of the case altogether ; and if it is taken away, I see no impediment to the stop- page in transitu having its full legal effect in favour of Messrs. Stoppel and Son. But the defenders have raised this difficulty, that stoppage in transitu is an annulment of the sale, and is therefore an annulment of the claim for the price ; that, consequently, the seller ceases to be a creditor for the price, and becomes proprietor of his goods again. But that is not the doctrine of our law — it was never known in Scotland before ; and I see no principle on which it should be adopted. It is not a fixed r;„Y8'il point *of English law, that stoppage in transitu annuls the sale L J — it is only said by some English authorities that it is competent so to annul a sale. I am not satisfied of the sufficiency of their arguments even on the matter of the English law ; and I certainly see no reason for the introduction of their doctrine into the law of Scotland. I see no distinction between stoppage in transitu and refusal to deliver. Suppose that the seller remained in possession of the goods sold, after the sale, and the buyer became bankrupt, could not the seller retain the goods till the price was paid ? — and would his so retaining them take away his claim or the price, and for the profits of the sale, or at least for damages for refusal on the buyer's part to implement it ? Could he not bring an action for declarator of the sale, and payment of the price ? We have had frequent actions of that nature in reference to both lands and moveables. I do not think that stoppage in transitu can have any other effect. I think it left the claim for the price just where it was before, while it afforded a security for it. It is just as if the security had existed over any other subject, and had been evacuated by a conveyance of that sub- ject within sixty days of bankruptcy — the holder of it is entitled to redress under the Act, 1696. It is said that after stoppage in transitu the seller might have re- pudiated the sale. Perhaps he might ; but the question is, Whether ho was bound to repudiate it? I do not see that he was; and here he cer- tainly did not repudiate it. He holds by the sale, and claims the price. On these grounds, I concur in thinking that the reduction of the in- dorsation is sufficient to rear up the preference claimed by Messrs. Stoppel and Son. Lord FuLLERTON. — After the clear statement given by your Lordship of the procedure in this case, it is unnecessary for me to repeat it in de- tail. It is sufficient to mention, that there are here two processes now conjoined. The first was a suspension and interdict at the instance of Stoppel and Son in which interdict was granted. There was no opposition, in that 538 KOSS ON OOMMXROIAL LAW. process, either by Martins the purchaser, or anybody representing him. The only opposition was made by the defenders, M'Laren and Company, r*78«T fo'i°'^'''g °^ *^^ "indorsation of the bill of lading. And the date L J of their appearance is sufficient to exclude one view very ably urged by the defenders, yiz., that the only competent reason of suspen- sion was the allegation of fraud, now negatived by the jury; and could not be the nullity on the Act 1696, because, at the time of the suspen- pension and interdict, Martine's bankruptcy had not taken place. But that will not do. The interdict was good, from the beginning, against the bankrupt and his general creditors. No doubt the defenders had a special ground of opposition, viz., the indorsation. But they did not appear and found upon that till the 21st December, and Martine had been sequestrated on the 13th. The reply, then, of the sellers, founded on the Act 1696, was clearly good in support of the interdict — and, con- sequently, the stoppage good — if it should be ultimately found that the indorsation was truly granted under circumstances which exposed it to the operation of the Statute. This last question, however, led to the second process of reduction, of which there were two grounds — first, that the indorsation of the bill of lading had been fraudulently obtained by the defenders, in the know- ledge of Martine's insolvency, for the purpose of defrauding Stoppel and Son, and the other creditors ; and, secondly, that the transference, being for a prior debt, was reducible^ under the Act 1696. This gave rise to three issues — 1st, Whether the bill of lading was fraudulently indorsed, to the prejudice of the legal rights of the sellers, Stoppel and Son; 2nd, Whether it was so granted to disappoint the rights of the creditors ; and, 3d. " Whether, on or about the 17th No- vember, 1847, or at any other time within sixty days of the sequestra^ tion, the said bill of lading was indorsed or transferred by the said bank-> rupt to the defenders, in security or satisfaction of a prior debt, contrary to the Act 1696." At the trial, the Jury found for the defenders on the first two issues, ^nd for the pursuers on the third. On this arose the present question as to the application of the verdict. The sellers moved for judgment in their favour in the suspension and interdict, and also in the reduction ; and, on the other hand, the de- r*7871 ^^''•^^''^j M'Laren and Company, "moved to repel the reasons of >- J suspension and interdict, and to assoilzie them from the action of declarator and reduction, in respect of the verdict in their favour on the first and second issues. And on the points raised by these motions, we have now had a written as well as verbal argument. On this, the first thing to be remarked is, that, with the exception of that part of the motion for the defenders which relates to absolvitor from the action in so far as regards the charge of the indorsation being frau- dulently obtained, and which is really immaterial as to any practical re- sult, the only parties are now the sellers on the one hand, and the body of Martine's creditors, represented by the trustee, on the other. The only ground of the peculiar right of M'Laren and Company rested on the indorsation to them of the bill of lading. That was their whole case in OONTBAOT 07 BALE. 539 the suspension and interdict; and it was the only suhjeot of the reduc- tion. Now that that is taken out of the way by the verdict of the Jury, clearly sustaining one ground of reduction, there seems no reason to doubt. But as reduction must follow — and, consequently, the private or special right of the defenders is at an end — I can see no reason what- ever for the motion of the defenders, in their individual character, that the reasons of suspension and interdict should be repelled. The only special ground on which they opposed the suspension is now removed ; and, consequently, their remaining interest is merely that of one of the general body of creditors. No doubt, there still remains the ques- tion, and a most important one — viz., in whose favour that reduc- tion shall operate — whether in favour of the sellers, to the effect of warranting a judgment sustaining the original interdict, and thus giving them right to the price of £775, for which they obtained caution ; or ex- clusively in favour of the trustee and creditors, on the ground that the only reductive conclusion truly competent to the sellers was the first, which has been negatived by the Jury, while the reductive conclusion founded on the Act 1696 was and is exclusively available to the trustee, the other pursuer in that action. After hearing the able argument on this question, I have formed the opinion, that the first view — viz., that maintained by the sellers — is the correct one. ♦Indeed, looking at the very peculiar nature of these conjoin- rusygg-i ed processes on which the question is raised, I do not very well L -• see how there is room for the demand now made in behalf of the trustee and the creditors. In the first place, the question as to the right of the sellers to stop in transitu was raised in the suspension and interdict, and in that process alone. M'Laren and Company appeared and opposed that suspension ; but their objection was founded solely on the indorsation of the bill of lading, which is now reduced, or at least found to be reducible ; and there was no opposition by any other party. Martina did not oppose, and, quoad him, the interdict was granted by the interlocutor of the Lord Ordinary of the 24th December, 1847, and -which interdict never was recalled. There was, to be sure, another point, between M'Laren and Company and the sellers, as to the amount of caution to be found by the former ; and on that point there was an alteration of the Lord Ordinary's interlocutor, by that of the Court of the 25th of January, 1847 ; but that alteration is expressly limited to the extent of the caution to be found by the complainers. The interdict against Martine, then, is final, and it never was challenged or objected to by the trustee, who might, if he had chosen, have sisted himself in that procedure. But he never did so— and for the obvious reason, that he had as little title, as Martine the bankrupt himself, to oppose the stoppage m transitu by the sellers, while the price remained unpaid. Accordingly, I do not see it main- tained, in the argument on the part of the trustee, that in the case of the bankruptcy of a purchaser, while the goods are in transitu and the ^uoe unpaid, the trustee of the bankrupt has any better right than the bank- 540 ROSS ON OOMMEKOIAL LAW. rupt himself, to prevent the seller from exercising his right. In fact, these are the very circumstances in which the stoppage in transitu be- comes of importance, and is most generally exercised. It is true the indorsation of the bill of lading is held to afford to a bona fide indorsee the means of barring the seller's right to stop. But that is exclusively limited to the indorsee ; and if the indorsation is annulled, it is difficult to discover how the case stands on any different footing, than if there had been no indorsation at all. Now, if no such r*7RQT ii'^°''sation had ever been *granted, and if an attempt were now L J made on the part of the trustee to get rid of the interdict — which still stands as to the bankrupt, and of which the trustee never sought the recall — I must have held that the trustee had no case, and that the interdict, and stoppage involved in it, remained in force, with all its legal consequences. And I rather think the same result must have followed, even if the action of reduction had been brought exclusively by the trus- tee himself. For I am not aware of any grounds upon which it could be consistently held, that the trustee had acquired in some way or other the benefit of the opposition to an interdict which he has never to this mo- ment opposed, by reducing the single ground of opposition available to the only party who did oppose it. Yet the claim now made truly involves that proposition. If there had been no necessity for a reduction, the interdict must have been good both against the bankrupt and the trus- tee j and yet, in the present demand — which is truly a demand for the value of the goods, and which would have been a demand for the delivery of the goods themselves but for the judicial arrangement between the sellers and M'Laren and Company — it seems to be assumed by the trustee, that somehow or other, he, the trustee, has acquired a right to these goods, by reducing the title of the only party who could oppose, and did oppose, the stoppage in transitu. But this is by far too favourable a view of the case for the trustee. For he was not the exclusive pursuer of the reduction ; he was a joint pursuer, indeed ; but the leading pursuers were Stoppel and Son, the sellers ; and thus the trustee and M'Laren and Company are now re- duced to the necessity of maintaining, that the last reason of reduction — viz., that on the Act 1696 — was exclusively available to the trustee, and was incompetent and inadmissible in so far as concerned the other pursuers, the sellers. But, in the first place, I do not think that we can, consistently with the summons and record, listen to such a propo- sition. Upon this point the terms of the summons are quite conclusive. The action was raised at the instance of Jurgen Stoppel and Son, "with the special advice and consent of Greorge Stoddart the trustee, for any right or interest he, the said George Stoddart, as trustee aforesaid, has in r*7901 ^^^ premises, and of the said Greorge Stoddart himself, for his L J *own right and interest." The action, then, in so far as regards the instance of Stoppel and Son, is one raised with the special advice and consent of the trustee. And what is the reason of reduction founded on the Act, 1696? After the statement of the statutes, it continues — That "the aforesaid pretended letters, missives, and indorsations, &o., were made and granted by the said bankrupt to the defenders, or to one CONTRACT or SALE. 541 or other of them, within sixty days before the date of his said sequestra- tion; and the same were contrived and intended to give the defenders security for, or payment of a prior debt alleged to be due to them by the said bankrupt, and thereby to confer on the defenders a partial prefer- ence, and to defraud and disappoint the other just and lawful creditors of the said John Martine, junior, and in particular, the pursuers, the said Jurgen Stoppel and Son, who then were, and still are, creditors of the said John Martine, junior, for the price of the said goods or cargo remain- ing wholly unpaid, as well as entitled to stop said goods or cargo in tran- situ for payment of the said price." And the conclusion is, that the indorsation shall be reduced, and that the " defenders ought and should be decerned and ordained, by decree aforesaid, to restore and make pay- ment to the pursuers, or to one or other of them, the said sum of £775, 7s. Qd., being the invoiced price of the said cargo of linseed-cakes, or such other sum as may be found to be the true value of the same." It is certainly to be regretted that this course of j oint action was adopted, without some more definite explanation of the respective claims of the parties; but one can see what led to it. After the arrangement entered into in the Bill-Chamber, and confirmed by the Court, the claim of the sellers was clearly enough limited to a demand for the price against M'Laren and Company, who were authorized to take possession of the goods upon finding caution. They objected to find caution absolutely for the amount of the original price, and it was accordingly qualified by the subsequent interlocutor of the Court, by a reference to the actual proceeds of the cargo. This was reasonable enough. It became, by this qualification, caution for the original price, to the extent in which that was realized by M'Laren and Company. But the claim of the sellers was truly a claim *for the original price; and if the goods had p^^n-i-, produced to M'Laren and Company a larger sum, there might L J have been a claim by the trustee and creditors for such surplus. To meet that possibility, I presume, and to leave the matter open, that conclusion of the summons, as well as the third issue, were left quite general, without reference to the distinct rights respectively held by the pursuers. But, whatever may have been the motive of the two sets of pursuers joining in one action, the passage of the summons already quoted is de- cisive against the attempt now made, to limit the reason of reduction founded on the Act, 1696, to the trustee, and to deny the benefit of it to the sellers. If it had been thought necessary to guard against such an attempt, no words could be conceived stronger than those inserted in the joint summons, and employed in describing the injury done by the indorsation sixty days before sequestration. It is described as having the effect of defrauding and disappointing, not only the "other just and law- ful creditors of the said John Martine, junior, but, in particular, the pursuers, the said Jurgen Stoppel and Son, who then were, and still are, creditors of the said John Martine, junior, for the price of the said goods or cargo remaining wholly unpaid, as well as entitled to stop the said goods or cargo in transitu for payment of the said price." Looking, then, at the state of these processes, I cannot help thinking, Maeoh, 1855.— 35 542 ROSS ON OOMMEKOIAL LAW. that a great part of the argument which we have heard in behalf of the trus- tee, is entirely excluded. In the first place, the trustee is not a party in the suspension and interdict at all; he never did oppose the interdict, or attempt to get any recall of the interdict directed against the bankrupt. 2d, The indorsation forming the only ground of opposition by the party who did appear, has been found, by the verdict on the third issue, to fall under the operation of the Act, 1696, and is consequently reducible. 3d, The summons in the action of reduction, in which this verdict was obtained, expressly set forth the title and interest of Stoppel and Son as creditors for the price, and as creditors entitled to stop in transitu for payment of the said price; and that title is not only not objected to by the defenders, but it is expressly recognised by the joint pursuer, the trus- r*7Q21 *^®' ^^° ^® ''°^ combined with the defenders, * to prevent the L J sellers from applying the verdict, and obtaining decree of reduc- tion in terms of it. It rather appears to me, that these considerations are enough to decide the case in favour of the sellers, Stoppel aijd Son; and that we cannot, without throwing loose all the ordinary forms of procedure, refuse the motion on their part, to interdict, or render the interdict perpetual, in terms of the prayer of the note of suspension and interdict ; to reduce, decern, and declare, in terms of the conclusions of the summons of re- duction; — with this explanation, perhaps, that the petitory conclusions of the summons ought to be limited to £775, 7«. Qd., being the original price of the cargo. The only objections to that motion are — 1st, that the sellers, in attempting to stop m transitu, are not to be held as credi- tors ; and 2d, that they were not entitled to reduce the indorsation for the purpose of letting in their right of stoppage in transitu — both of which propositions are negatived by the express terms of the summons, in which the trustee himself is a joint pursuer. But, really, if these questions were still open, I think they must have been decided in favour of the sellers. In the first place, it is in vain to contend, in defiance of the cases referred to on the part of the sellers, that the operation of the Act, 1696, is limited to the equalization of the rights of the whole body of the creditors, and that there is any incon- gruity in giving it the effect of restoring a special right of preference, impaired, or apparently destroyed by the deed under reduction. If a case had been expressly contrived for illiUstrating, the opposite proposition, it could not have been made stronger than that last referred to, in which a tenant's conveyance of a lease to his trustee for behoof of his creditors, executed within sixty days of his bankruptcy, was held to be reducible at the instance of a creditor holding an assignation from the tenant in seeurity of his debt. There the sole object and effect of the reduction was to rear up a special preference, by annulling, in virtue of the Act, 1696, a deed granted for behoof of the general body of the creditors. 2d, The proposition that the seller of goods of which the price is unpaid, loses the character of creditor, by taking steps for stopping them in tr1 °"' guidance. And viewing it in this light, *I may be per- L J mitted to say, that I consider the opinions expressed in the authorities quoted on the part of the sellers, as the most satisfactory. As there is no express rescission of the contract, the question is. Whe- ther there is anything in the stoppage in transitu which necessarily implies it ? Now, the implication cannot well go beyond the necessary consequence of the thing done, which is merely the replacing in the hands of the seller the goods which he had partially or constructively delivered, by putting them into the hands of th« carrier, or other instrument of transit. But as the act of retaining the goods, while the price remains unpaid, does not rescind the contract, it is difficult to see why the revival of that retention, through the medium of stoppage in transitu, should have any more extensive effect. What is done by the stoppage, as it seems to me, is not to void the contract, but merely to void, (if that expression is used,) or more properly, to recall that partial or constructive delivery which arose from the seller parting with the ipsa corpora of the goods. It rather appears to me, that as the only effect of stoppage is to replace the parties in the situation where they stood before the goods were parted with, and as that situation is confessedly allowed to be consistent with the subsistence of the contract of sale, the act of stoppage cannot be held to support any more extensive implication. The stoppage, like the retention, is always held to imply a tender of the delivery on payment of the price. Accordingly, I see no reason to doubt, that even after the interdict had been obtained by Stoppel and Son, the trustee, on making payment of the price, would at once have been enabled to get the interdict recalled, and to obtain delivery of the goods. And I cannot help thinking that this circumstance has been overlooked by one learned author. Professor Bell, who appears to have adopted the view that the contract is rescinded by the stoppage. He of course .admits that the retention of the goods, while undelivered, has no such OONTEACT OF SALE. 545 eflfect; and he endeavours to make a distinction : — "But, in permitting the interference of equity to annul this transfer, and deprive the general creditors of the buyer of property which, in strict law, has passed to their debtor, it has been considered as equitable, on the other hand, that it should be accompanied by a rescinding of the whole con- r.-qf.-, tract, *and a renunciation of any further claim," &o. 1 Bell, L -I 230, 231. ' Now, without entering into the inquiry how far equity could be said to sustain against the seller, that delivery of the goods, which, after all, is but constructive and not real so long as they are on transit — it is enough to observe, that the learned author has here contemplated only one contingency, viz., that the rescission of the contract should turn out for the benefit of the vendor. But, in determining on the rescission of the contract supposed to arise from stoppage, the other, contingency of the contract being beneficial to the purchaser, cannot be thrown out of view. If the contract is rescinded, it is at an end both as to seller and purchaser; so that the effect would be, to place the existence or non-existenoe of the contract, while the goods are in transitu and the price is paid, at the discretion of the seller. By stopping the goods he may, on that supposition, at once get rid of the contract altogether, though it were most beneficial to the purchaser and his creditors, so that he would stand in a much better situation on the stoppage than if the goods had never passed out of his hands. But the whole of this assumption is absolutely inconsistent with the admitted principle, that the stoppage, like the retention, always implies a tender of delivery on payment of the contract price : and that, after the stoppage, the purchaser and his creditors are entitled to demand delivery on payment of such price. That being the undoubted law of the case, I cannot see how the contract can, on any sound or consistent principle, be said to be annulled by an act on the part of the seller, which leaves his obligation to deliver the goods at the contract price, and the seller's right to demand delivery at that price, in full force. The act of stoppage seems to me to be well described by the learned authorities quoted by the sellers, as merely an equitable extension of the right of retention, and having no other effect than that of retention ; of giving the seller the benefit of a security for the price, without in the smallest degree affecting his right as a creditor for the contract price, or the rights of the purchaser to get delivery on payment. *0n all these grounds, I think the motion for the sellers. Stop- r^irnir-i pel and Son, ought in substance to be granted ; though it may L J be necessary to qualify the terms of the interlocutor, so as to adjust them to the special circumstances now ascertained by the verdict. Lord CoNiNQHAME. — I coucur with all of your Lordships, that the best authorities and principles of our law support the leading plea of the sellers in the actions now before us. The fact is now finally ascer- tained, that the bill of lading for the cargo in dispute was indorsed by Martine to M'Laren and Company within sixty days of his bankruptcy, and that the cargo is held by the latter, not for any immediate advance, but as a preference for an old debt ;— and the sole question now to be 546 ROSS ON OOMMEROIAL LAW. determined is, If the sellers have a title, under the Act 1696, to chal- lenge that indorsation? It humbly appears to me that, upon the ' statute, the plea is not less available to the sellers (but, perhaps, more so) than to any other party interested in the affairs of the bankrupt. This valuable principle of law proceeds on the assumption, that traders know when their failure is inevitable and impending ; and that all their alienations for old debts, within sixty days of actual bank- ruptcy, are declared void and null. Such a statute, from its object and whole scope, is entitled to a fair and liberal construction, so as to reach , every form of preference voluntarily given by an insolvent within the prescribed period of his bankruptcy; and the statute appears to have been framed with that view; for the right to challenge preferences is thereby given, not solely to the collective body of other creditors — not merely t^a trustee for creditors eo nomine^ — but specially to any of the bankrupt's creditors injured by the alienations, — as the Act specially declares these cognizable by sentence of the Lords of Session, to be insisted for " by any of his just creditors, who are hereby required to raise and proseciite by declarator of bankruptcy to that effect." In this view, the questions here arising are these — Have the sellers of goods, at a distance, on the bill of an insolvent purchaser, any claim, latent or direct, on the purchaser before delivery, to invest him with the r*7QST ^^&^ character of a creditor of *the buyer? And are they enti- L J tied to challenge an alienation of their goods, when given by the first consignees to a prior creditor, to the prejudice of their right to reclaim or stop the goods in transitu? On these points I can entertain no doubt. The seller has an admitted right to reclaim the goods before actual delivery, — to get them back ad interim in security of the price, if they have not been validly alienated ; and this is a right of a highly equitable kind, pleadable against the bankrupt, as well as the trustee in his sequestration, and the whole body of his prior creditors. It seems to be a denial of a palpable truism, to maintain that such a right has not all the qualities of a jus crediti in the person of the seller. Accordingly, any authorities or analogies of our law which can be referred to in argument, decisively support the seller's plea. Although the precise point here at issue does not appear to have occurred as yet for decision in our practice, yet the Act 1696 has received effect in other instances, which go far in principle to rule the present question. Thus, it has been found that the tpsa corpora of movables, as well as pay- ments of money and nomina debitorum, may be reclaimed, when alien- ated by an insolvent for a prior debt, within sixty days of bankruptcy. See Forbes in 1718, Diet. p. 1124; Smith in 1728, p. 1128; imi Young in 1783, p. 1141. These authorities at least prove, that by the Act 1696 the cargo in dispute is reclaimable by some party, when alienated in violation of the statute ; and it seems now to be admitted by the assignee, that the goods here were reclaimed by the trustee for the gene- ral creditors. But I see no ground for any distinction between him and a special creditor entitled to reclaim a specific cargo. For, besides the cases before referred to, there are others on record in which it has been repeatedly found that the benefit of the Act 1696 is competent to all ooNiaAOT or sale. 547 creditors of the fenkrupt (special as well as general) suffering from alien- ations contrary to the Act 1696. Thus, in 1739, an alienation of fur- niture by a bankrupt for an old debt was reduced at the instance of a creditor who arrested it after the assignation, and even after possession was taken by the assignee. Diet. p. 11,570. And in the ease of Shaw in 1747, a second disposition with infeftment for a prior debt, was reduced under the Act 1696, at the instance of a former *dispo- (-»7qq-i nee uninfeft. Diet. p. 1150. The bearing of these authorities L -I on the present case requires no illustration. Farther, although the law of stoppage in transitu was adopted ill Scotland, without statute, at a comparatively late period, and in con- formity with the usage of trade of England, it is well to recollect that our earlier common law, as explained by Mr. Bell (vol. i. pp. 209-214) following the practice of continental nations, was more jealous of pur- chases by insolvents within a definite period of bankruptcy, than the English law. Hence, while we borrowed the right of stoppage in tran- situ, and its exceptions, from English practice, it must be held that it was Tinder the reservation of our own statutory law, for checking pre- ferences given by insolvents within a prescribed period of notour bank- ruptcy, which remained in full observance. Accordingly, the authority of the well-known English case of Lick- barrow V. Mason, in 1787, was at once admitted by us, because it was only found thereby that a bill of lading, indorsed for a valuable consi- deration, was negotiable and available to the indorsee ; but there is no precedent or authority for holding that such indorsations or assignations of cargoes at sea, made by an insolvent within sixty days of bankruptcy, for a prior debt, have ever been sustained. On the contrary, they seem to be contrary to every sound construction of the Act 1696. In England, indeed, the inconvenience of permitting a bill of lading to be assigned away, by a consignee on the eve of bankruptcy, for an old balance, has been often felt and acknowledged ; and the Act 6 G-eo. IV., cap. 94, was passed to limit the effect of such assignations by factors, to advances actually made in respect of the indorsation; and, in other cases, very slender evidence is admitted to prove the indorsee's know- ledge of the insolvency of the indorser, and to entitle the creditors to question the assignation — as manifested in sundry reported cases, unne- cessary to be quoted. But the express terms of our Act of 1696, super- sede all reference to other systems in this country, and form clear and express enactments, annulling all assignations and securities, of whatever kind, made in Scotland, by an insolvent for an old debt, within sixty days of his notour bankruptcy. *As already observed, that statute is entitled to a very liberal pgoQ-i construction to repress all preferences. It would, indeed, be a L most anomalous and capricious state of the law, if the alienation by an insolvent of a small bill of exchange, or of a railway share, were chal- lengeable by any creditor injured— and not the assignment of a whole cargo of valuable merchandise j or if an ordinary creditor of inconsider- able amount, and old date, had a legal title to challenge any preference by which he is prejudiced to the smallest extent— while such right was 648 ROSS ON COMMEROIAI, LAW. denied to another, who had been recently deprived, by the act of a party on the eve of bankruptcy, in violation of a most salutary statute, of the most valuable collection of moveables known in commerce. It would require very strong and clear authority to establish these distinctions ; but I am satisfied, on recurring to the principles and authorities of our law, that this plea cannot be maintained. The CotTRT pronounced the following interlocutor: — In the suspen- sion, suspend the letters simpliciter, declare the interdict perpetual, and decern : And in the reduction, agreeably to the verdict of the jury appli- cable to the two first issues, assoilzie the defenders, Messrs. David McLa- ren and Company, from that conclusion of the summons founded on the second reason of reduction, proceeding on the ground of fraud; but, agreeably to the said verdict applicable to the third issue, sustain the third reason of reduction founded on the Act 1696, cap. 5, and reduce, decern, and declare, conform to the conclusions of the summons founded on that statute : Find the defenders, Messrs. M'Laren and Company, 'liable to make payment to the pursuers, Jurgen Stoppel and Son, of the proceeds of the cargo of linseed-cakes in question, as the same shall be ascertained; and remit to Lord Wood, Ordinary in the cause, to hear parties upon the state produced in process, and to exhaust the conclu- sions for accounting, in the summons : Find the pursuers entitled to their expenses against Messrs. M'Laren and Company, down to the date of the verdict, so far as these have been incurred in the suspension, and in establishing the finding of the jury upon the third issue ; but, on the other hand, find Messrs. M'Laren entitled to their expenses against the r*8ni 1 ^^'"^ pursuers, so far as *these expenses have been incurred, in L -I the reduction, in establishing the findings of the jury upon the first and second issues ; and, before farther answer as to this branch of the expenses, appoint each of the said parties to lodge their accounts of the expenses claimed by them respectively, and remit the same to the auditor of Court to tax the same, and to report specially on the expenses incurred in establishing the several findings of the jury, and reserve all questions of relief between the pursuers themselves, as regards these expenses : As to the expenses incurred subsequently to the trial, find the defenders, Messrs. M'Laren, and George Stoddart, the trustee on the , sequestrated estate of John Martine, junior, conjunctly and severally liable to the pursuers, Stoppel and Son, in that branch of the expenses; appoint an account of that branch of the expenses to be lodged, and remit to the auditor to tax the same, and to report ; Declaring that, as between the said David M'Laren and Company and the said trustee, there shall be relief inter se to the extent of one-half of the said last mentioned- expenses." CONTRACT OF SALE. 549 THE SHIPPING or OOODS ON BOAKD A VESSEL, FREIGHTED BY THE PUB- CHASEU OP THE GOODS, IS NOT EQUIVALENT TO DELIVERY, AND DOES NOT PREVENT STOPPAGE IN TRANSITU. ROBEKTSON v. MORE. July 3, 1801.— S. M. App. Sale No. 3. Sinclair and Williamson, merchants in Leith, on the 25th Febru- ary, 1796, bought from Robertsons and Aitken, Merchants in Eyemouth, 127i quarters of wheat. In April, Sinclair and Williamson freighted a small vessel, then lying at Eyemouth, for the purpose of bringing to Leith this and some other parcels of grain which belonged to them. The wheat was shipped on the 6th April, and on the same day, Rob- ertson and Aitken transmitted an invoice and bill of lading to Sinclair and Williamson. The vessel arrived at Leith on the 8th April. *0n the 13th April, Sinclair and Williamson stopt payment; r^BnoT and on the same day, they wrote a circular letter to their credi- L J tors, notifying their inability to fulfil their engagements. On the receipt of this letter, William Robertson, one of the partners of Robertson and Aitken, set out for Leith, and arrived there on the morning of the 15th April. It was admitted on all hands, that, on his arrival, the whole cargo was still on board the vessel. It was also estab- lished, and indeed admitted, that on the same morning Robertson had an interview with Sinclair and Williamson ; and it was but faintly denied, that at this interview Robertson declared to Sinclair and Williamson his intention to prevent the wheat from being delivered to them. It was further asserted by Robertson and Aitken, 1st, That Sinclair and Wil- liamson, at this meeting with William Robertson, acquiesced in its being returned to Robertson and Aitken ; and, 2dly, That on the same morn- ing, and while the cargo was entire, William Robertson also intimated his intention of preventing the delivery of the wheat, to the master of the vessel. These two assertions were not proven, and were denied on the other side. Mr. Robertson, after taking these steps at Leith, came to Edinburgh, and agreed with a Mr. Murray to land and receive the wheat for behoof of Robertson and Aitken ; but before Murrry had got to Leith, Sinclair and Williamson had begun to unload the* cargo, and Murray was pre- vented from interfering. Upon this Robertson and Aitken instantly obtained a warrant from the Judge-Admiral, authorizing them to unload snoh part of the wheat as should be found remaining in the vessel, and to lodge it in a granary for behoof of all concerned, which was done accordingly. On the same day (the 15th April) Sinclair and Williamson's estate was sequestrated. Soon after, Robertson and Aitken laid claim not only to the wheat landed by authority of the Judge-Admiral, but also to the price of that which had got into the possession of Sinclair and Williamson, on the ground that the whole had been stopped in transitu. The Judge-Ad- 550 BOSS ON OOMMBROIAL LAW. P;^(,«„, miral found, " That they had right *to the wheat secured on L -I board of ship, under the warrant from this Court, and to no other wheat." Robertson and Aitlcen having brought this judgment, in so far as it repelled their claim, under review by advocation, Mr. More, the trustee on the sequestrated estate of Sinclair and Williamson, in support of the judgment. Pleaded. — Groods may be stopped as in transitu, where their delivery has been only constructive, as when they are sent by a common carrier. But when there has been actual delivery, the transitus is at an end, and their can be no stoppage. Now, in this case, as the wheat was put on board a vessel wholly freighted by Sinclair and Williamson, the delivery of th^ wheat must be held as completed at Eyemouth, equally as if it had been put into a granary at that place belonging to the purchasers. But, even supposing the transitus not to have been at an end at Eye- mouth, that part of the wheat of which Sinclair and Williamson got pos- session, was not effectually stopped at Leith. It is fixed law, that the stoppage of goods in transitu, operates a complete voidance of the con- tract of sale J 24th December, 1796, Murray and Henderson v. Kincaid ; and it must be admitted, that by the shipment at Eyemouth and the transmission of the bills of lading to Sinclair and Williamson, at least a constructive, if not an actual, delivery of the grain was made to them. ■ The grain, therefore, was, to all intents, their property. Now a private act of the sellers could not either reinvest them in the right of property, nor divest the purchasers. To accomplish this, there must be the war- rant of a Judge. The intimation made to Sinclair and Williamson by the sellers on the morning of the 15th, that they meant to prevent deli- very, could not therefore take the property out of Sinclair and William- son, and before arrival of the warrant of the Judge Admiral, authorizing the sellers to take possession of the wheat for behoof of all concerned, that part of it, of which the proceeds are now claimed, was in the actual possession of Sinclair and Williamson. r*804-1 -Answered. — In order to prevent stoppage in transitu, the L J *goods must either have come to the corporal touch of the ven- dees, or there must have been symbolical delivery. Here the delivery was merely constructive, and this, it is admitted, does not prevent the stoppage. It is quite settled, that stoppage in transitu, even after constructive delivery, may be effected by the mere private countermand of the ven- dor, without the aid of judicial authority. See opinion of the Judges in the English cases; 1 Atkins, 248, Snee v. Prescote; 3 Durnford, 469, Ellis V. Hunt. The Lord Ordinary " remitted the cause simpliciter to the Judge- Admiral." But on advising a reclaiming petition for Robertson and Aitken, with answers, a great majority of the Court were of opinion, on the first point, that the delivery at Eyemouth was constructive only, and consequently did not prevent stoppage in transitu. On the second point, many of the Judges thought the intimation to OONTRAOT OF SALE. 551 the purchasers on the morning of the 15th April, sufficient to effect the stoppage ; and nearly the whole Court were of opinion, that the ship- master being the custodier for behoof of both parties, private intimation to him was effectual. And although there was no positive evidence of such intimation, yet the circumstances of the case created so strong a presumption that it had been actually given, that the Court seemed to hold the fact as established. It was also observed from the Bench, That Sinclair and Williamson, by taking possession of the grain after their avowed insolvency, were guilty of a wrong, by which neither they nor their creditors ought to profit. The Lords " altered the judgment of the Judge-Admiral and Lord Ordinary, and found the sellers entitled to the proceeds of the grain which had got into the possession of Sinclair and Williamson." •partial DELIVEET by the master of a vessel does not r,Q(^c-, BAR THE seller's RIGHT OF STOPPING IN TRANSITU WHAT '• ■' REMAINS undelivered. COLLINS v. MARQUIS'S CREDITORS. Nor. 23, 1804.— S. Mor. 14223. John Marquis, shipmaster in Dysart, commissioned from William and Thomas Collins, in Kent, a cargo of timber. It was shipped (26th March, 1801,) on board a vessel freighted by Messrs. Collins. The vessel arrived at Dysart on the 10th April, 1801, before which time (20th March,) letters of caption had been issued against Marquis upon a horning, which he had suspended. On the 11th the vessel began to unload, and the greatest part of the timber was laid down on the sands of the Dysart, or conveyed in carts into Marquis's wood-yard. The shipmaster having made a demand for his freight, which was not paid, he refused to deliver any more of the cargo; and (20th April) ob- tained from the Judge of the Court of Admiralty, a warrant to sell as much of it as would cover the freight. On the day following. Marquis, upon application to the sheriff, was inter- dicted from disposing 6f this cargo ; and the creditors purchased the shipmaster's right of hypothec, by paying his freight and charges, taking an assignation from him. He also delivered to them the bill of lading. The rest of the cargo was then unloaded, and put into Marquis's wood- The execution on the caption bore date 14th May, and next day Mar- quis's estate was sequestrated. Messrs. Collins having first presented a bill of suspension against selling the timber, brought an action against the trustee, concluding for repetition of the whole timber, as having been fraudulently taken possession of by Marquis. The Lord Ordinary (12th May, 1802,) pro- 552 ROSS ON OOMMEROIAL LAW. nounced the following interlocutor : — " Finds that the said John Mar- quis having commissioned a cargo of timber, to be sent to him at Dysart, r*8nfin ^^ ^^^ *^**'^ Messrs. Collins, they did accordingly ship for him, L J upon the 26th March, 1801, the timber on board the brig Jean, Captain Sheddan, master, they having agreed with him as to the amount of the freight, to be paid on delivery, as is instructed by the bill of lading produced in process : Finds, that the said vessel and cargo arrived at Dysart early in the month of April, 1801 j but by that time the said John Marquis having become utterly bankrupt, and unable to pay the freight ; in consequence of which, the shipmaster refused to deliver the cargo, or to give him the invoice : Finds, that in these circumstances, the shipmaster could not warrantably deliver or transfer the cargo in question either to the said John Marquis, or to his creditors, but was bound to have "retained the same for behoof of Messrs. Collins, the owner of the timber: and that, although the creditors of Marquis obtained and took possession of the timber, upon their paying the freight to Captain Sheddan, the master, yet this transaction was illegal, and could not trans- fer the property to the prejudice of Messrs. Collins j and in respect the cargo was afterwards sold, and the price consigned, to be made forth- coming to those who should be found to have best right thereto, finds the said Messrs. Collins and their attorneys preferable to the "proceeds of the said cargo; and therefore in the suspension, suspends the letters simpliciter ; and in the ordinary action at the instance of Messrs. Collins and their attorneys, decerns in terms of the conclusions of the libel." The creditors reclaimed, and Pleaded. — The shipmaster is merely the mandatary of the shipper, to deliver the cargo on receiving his freight; and this he could not refuse to do on being paid. He was not entrusted with the conditional^delivery of the cargo, so as only to put Marquis in possession of it, if the price was then paid ; nor had the purchaser at that time been rendered bank- rupt, but, on the contrary, his warehouse continued open, and he traded as usual. The property of the timber, then, by the delivery, was com- pletely transferred. No proof of actual fraud has been attempted ; and insolvency, of itself, is not sufficient to afford a legal presumption of r*8071 ^^^'"'^i ^'^^^ though the delivery should *take place within three L J days of actual bankruptcy ; Allan and Steuart v. Stein's Credi- tors, 4th December, 1788 ; reversed in the House of Lords. The right of stopping in transitu, in this case, was not used ; the shipmaster only detained what covered his freight ; but the sellers never appeared to exercise their right, till the whole was delivered either to the bankrupt or his creditors; and a partial delivery puts an end to the transitus; Slubey and Smith v. Hayward and Company, 2 H. Bl. 504. Answered. — The bankrupt circumstances of the purchaser, when the vessel arrived, prevented any effectual delivery being made to him. He was even unable to pay the freight ; and therefore the shipmaster, who is appointed to watch over the interest of the person who employs him, could not warrantably transfer the cargo to the bankrupt or his credi- tors, without receiving or securing the price. The cargo, therefore, or at least a great part of it, never was legally in the possession of the OONTEAOT or SALE. 553 bankrupt or of his creditors, for* they cannot avail themselves of the breach of trust which they induced the shipmaster to commit. The creditors obtained, indeed, the bill of lading, which was the warrant for delivery of the cargo, upon paying the freight due to him ; but this was after tho bankruptcy, which first gave them a right to act. While the shipmaster retained the bill of lading, he preserved a real right over the whole cargo, part of which was still in the ship, part in the sands, and only a part in the wood-yard. But the cargo cannot be separated into parts, nor subjected to different rules. The right to the whole must be determined by the bill of lading. The Court (24th November, 1803,) pronounced the following inter- locutor : — " The Lords having advised this petition, with the answers thereto, find the respondents, Messrs. Collins, preferable to the price of that part of the cargo which remained on shipboard, as also to that part of the cargo which remained upon the pier or shore upon the 21st of April, 1801, the date of the sheriff's interlocutor, in the application made to him by the petitioners, for inventorying and selling the wood in question : Find the petitioners preferable upon the price of that *part of the cargo which was at that time within the wood-yard, p^onai or other premises belonging to John Marquis ; and find the par- L J ties liable proportionally in the freight paid to the shipmaster ; and in so far alter the interlocutor of the Lord Ordinary complained of; and remit to his Lordship to proceed accordingly." Both parties reclaimed. Both petitions were appointed to be answered ; but on advising them, (23d November, 1804,) the Court adhered. The Court were, upon the whole, of opinion that the circumstance of subsequent insolvency was not sufiScient to prevent Marquis from receiv- ing delivery of the goods he had commissioned some time before ; that fraud did not give rise to the transaction, as he continued carrying on business as usual, although under diligence, which afterwards rendered him bankrupt. But they resorted to a distinction between what had actually come into his possession and what was still in transitu at the time of his bankruptcy, not listening to the plea, that the delivery of a part of the cargo barred the right of stopping as to that which was still undelivered. The judgment in this case runs counter to the judgment in the English case of Slubey v. Heyward, supra, p. 212, where it was held that partial delivery by the master of the vessel was equivalent to total delivery, unless the circumstance that the vessel was freighted by the seller be a ground for distinguishing the two cases. It does not, however, appear that the judgment in Scotland proceeded on that specialty. Partial delivery by a seller would not bar his right to retain the part undelivered on the insolvency of the purchaser. A similar rule, it is thought, ought to apply to the case of delivery by a carrier or a middleman. The same equity that originated the principle of stoppage in transitu would seem to justiiy such a rule. 554 ROSS ON OOMMEROIAL LAW. *A PTJRCHASEK WHO FINDS HIMSELF INSOLVENT MAT REFUSE L ""'^J DELIVERY OF THE GOODS PURCHASED, AND IP THE REJEC- TION IS ACCEPTED BT THE SELLER, THE CONTRACT WILL THEREBY BE RESCINDED. STEIN V. HUTCHISON. Nov. 16, 1810.— S. F. C. 33. William Adam, merchant, in Forfar, wrote to Messrs. Stein, of Hattonburn, for two puncheons of whisky, on the 3d December, 1807 ; and directed the spirits to be sent to a person in Cupar-Angus, who was to forward them to Forfar by the carrier. The wtisky was accordingly sent from Hattonburn on the 7th, in the way directed, and arrived at Forfar on the morning of the 8th, between nine and ten o'clock, and was laid down at Adam's cellar door. Some days previous to this, Adam found, from an inspection of his books, that his affairs were in disorder j and by a letter received by the post on the 8th, intimating the failure of a house in which he was concerned, he was assured that he must de- clare himself bankrupt. The post arrives at Forfar about eleven o'clock forenoon ; and, immediately upon receipt of this letter, Adam communi- cated his situation to a friend in Forfar, who advised him to send to Edinburgh for a sequestration, and also to write Messrs. Stein, inform- ing them of his situation, and offering back the whisky. He also, by his friend's advice, received the spirits into his cellar, being assured by him that it would not be ini prejudice of the interest of Messrs. Stein. Upon the 8th December, accordingly, both letters were written ; but, by mistake, the one to Messrs. Stein was not put into the post-ofiSce along with the other, and did not arrive at Hattonburn, though only a day's journey, till the 14th ; and an answer was returned to it by them, sig- nifying their intention of receiving back the whisky, only on the 28th. Sequestration was awarded against Adam on the 11th, and a factor and trustee appointed. A demand made by the Messrs. Stein for the whisky, not having been complied with, an action was raised at their instance against William Hutchison, the trustee for Adam's creditors, r*810n ""'"''^'^^^g either for return of the *whisky, or for the price. As L J there was some difference between. the parties, as to the facts at- tending the transaction, a proof was allowed by the Lord Ordinary ; by which the statement above made was completely verified. On conside- ration of which, the Lord Ordinary pronounced this interlocutor : — " Having considered the condescendence for the pursuer, &c., finds that Adam, the bankrupt, would have been guilty of a fraud, had he, in the knowledge of his insolvent situation, accepted of the two puncheons of spirits as a purchase, when he was unable to pay the price : Finds suf- ficient evidence that he did not so accept of them : Therefore, on the prin- ciples recognised by the Court, in the late case of Drake, repels the defences, and decerns." The trustee, in a petition to the Court against that interlocutor, pleaded : — CONTRACT or SALE. 555 There are two things here quite decisive in favour of the creditors : 1st, The goods in question were actually, or at least constructively, delivered, to the effect of their being vested in the bankrupt, before his bankruptcy was declared ; and, 2dly, Supposing this not to be the case, and it was still in the power of the vendee to offer back the goods, there was wanting that prompt and immediate acquiescence on the part of the vendor to receive them, which alone would make that offer availing against the creditors. As to the first point :^— By the strict law of Scotland, as laid down by Lord Stair, b. i. tit. 14, § 2, goods are transferred by actual delivery alone. When such delivery has taken place, it is out of the power of any creditor of the vender to attach them, even though the price is not paid. The law knows of no right of hypothec over goods for the price, when once delivered ; and every lien which the vendor had over them is, by that event, at an end. Young v. Trustee for Stein's Creditors, 23d July, 1789 ; and in the English case, Kinlock v. Craig, 7th Febru- ary, 1789, 3 T. R. 119, affirmed in the House of Lords. But the sim- plicity and strictness of our ancient law has been altered by the doctrine of constructive delivery, borrowed from the law of England, and intro- duced from ideas of equity. This doctrine has altered our law in so far that, although it is equal nearly in *its effects to actual delivery, r^oi-i-i yet suffers this modification, that it gives to the vendor the power L J of stopping the goods in transitu, by following and seizing them at any time before they actually come into the hands of the vendee. Now, in the present case, a complete constructive delivery has taken place with- out any attempt of the vender to stop in transitu. The whisky was sent to a person who was authorized to receive and transmit it to Adam. The moment then that it came into the hands of this person, the posses- sion of the vendor was at an end. Every right of lien over it was extinguished ; and he could only, by stoppage in transitu, defeat the right of the bankrupt's creditors. But no attempt was made of this kind. The goods were actually delivered to the vendee. They were at his cellar door ; and although not actually received into his cellar, which many accidents might retard, yet they were as much delivered to him and in his possession, as goods are in that of a wharfinger, by being laid down on wharfage ground. This, then, being the case, the rule in the Bankrupt Act, § 29, must apply, that all transactions by a bankrupt, to the prejudice of his creditors, after sequestration is awarded, shall be null and void. But, in the second place, supposing the delivery of the whisky to be imperfect, and the offer of the vendee to return them effectual, yet still that offer must be accepted by the vendor tempestive, and before the goods came into the stock of the vendee. Now, these goods were put into Adam's cellar on the 8th, and surveyed as part of his stock by the excise officer before the 26th, when only the determination of the ven- dor was communicated. In this situation, the creditors of the bankrupt are entitled to say that everything found in his cellars belongs to them. Messrs. Stein answered:— v i-i * This case is almost entirely a case of fact, and the law applicable to 556 KOSS ON OOMMEBOIAL LAW. it is extremely short and simple. By the established law both of this country and England, goods may be stopped in transitu by the vendor, wheneyer the price is not paid, and the goods not actually delivered. Before such delivery, it is in like manner in the power of the vendor to r««i 91 'f^*'^'^^ ^^^ goods, if *he knows he cannot pay for them. In L J fact, the right of the vendor to stop in transitu, and that of the vendee to reject the goods, is co-relative ; and is a power which either of them may exercise, till actual delivery, and even though constructive delivery has taken place. Bell's Commentaries on the Bankrupt Law, vol. ii. § 2, p. 134. The case of Drake, upon the principle of Thioh ease the Lord Ordinary has rested his judgment, is much stronger ttan the present, and goes farther than there is any occasion to go here. In that case, the bill of lading was actually indorsed by the bankrupt to the trustee for his creditors, which, by the common rules of law, is an unequivocal exercise of the right of property ; but which was found, in the circumstances of the case, insufficient to transfer the property from the vendor. But as to the second point, — Erom the facts of the ease, it is clear, that, on acoount'of the delay in sending the letter to Messrs. Stein, and ■which was merely accidental, they with the utmost diligence could not have transmitted their determination before the sequestration was awarded. Nor is this indeed a matter of the smallest consequence. Till the price is paid, and while the contract is incomplete, the right of rejection on the part of the vendee is as entire as that of the vendor j to stop in transitu, their effects, as in every instance of co-relative and coincident rights, being the same. Lord President Blaie observed, — The puncheons of whisky arrived at Forfar on the morning of the 8 th December ; and before that day, Adam, the purchaser, was aware of his bankrupt situation, and that it ■was impossible for him either to pay the price or proceed 'with his trade. Before taking the goods into his cellar, he consulted -with a friend, who advised him to apply for a sequestration, and to return the goods, which was the only advice that an honest man could either give or follow. Accordingly, the goods ■were taken into the cellar custodiae causa, ■without any intention to appropriate them, but merely for their due care and preservation. Indeed, in the circumstances of the cage, it might be doubted whether, even if the bankrupt had taken them into his possession with the deliberate intention of making them his own, PSlSn ^^^ rendering them a part *of the bankrupt estate, such a trans- L -I action might not have been reduced at common law on the head of fraud. The other Judges unanimously concurred in this opinion. And (16th November, 1810,) the Lords adhered. •WHERE AN ARTICLE IS ORDERED TO BE MADE, AND BY THE TERMS OF THE CONTRACT INSTALMENTS OF THE PRICE ARE TO BE PAID CONTRACT or SALE. 557 ACCORDING TO THE PROGRESS OF THE WORK, THE PAYMENT OF THE FIRST INSTALMENT APPROPRIATES THE ARTICLE TO THE ORDERER. SIMPSON V. DUNCANSON'S CREDITORS. Aug. 2, ITSe.— S. Mor. 14204. William Simpson employed Duncanson to build a ship for him. The materials composing the hull were to be provided by the builder ; but the employer was to furnish the masts and other articles necessary for completing the vessel, and the price was to be paid in three different portions ; one, at laying the keel ; another, when the vessel was built up and planked to the top of the gunwale ; and the remaining sums when the ship was launched. After receiving payment of the first portion, Duncanson, the ship- builder, became insolvent. The factor on his sequestrated estate insisted that the ship, in its then imperfect state, was to bo viewed as still the property of the bank- rupt, the proceeds of which were to be divided amongst his creditors in general. Mr. Simpson, on the other hand, contended, that by the con- struction of the vessel in terms of the contract, it became his, specifi- catione ; the builder being to be considered merely as a mandatory, "who acquired, not to himself, but to his constituent. The determination of the case was thought by the Judges to depend, not so much on general principles of law, as on the "special rto-tA-] terms of the agreement. By these the employer was to pay the L J price in different portions. Before payment, however, ho had a right to see the work so far properly performed. Thus, as the builder pro- ceeded, such an appropriation took place, as prevented his creditors from attaching the ship without refunding the sums advanced. The Lords found the claim of Mr. Simpson to be preferable to that of the creditors of the bankrupt. WHERE AN ARTICLE IS SOLD FOR FULL VALUE, THERE IS AN IMPLIED WARRANDICE THAT THE ARTICLE IS MARKETABLE, AND FIT FOR THE PURPOSE FOR WHICH IT WAS SOLD, AND THE SELLER IS LIABLE FOR ANY LATENT DEFECT ALTHOUGH UNKNOWN TO HIM. I. — RALSTON v. ROBERTSON. June, 16, 1Y61.— S. M. 14238. In October, 1758, Joseph Ralston was sent by Mr. Allan, his master, to a fair in the town of Ayr, in order to purchase a couple of horses for him. He there met with Thomas Robertson, the defender, who sold him a horse for £8, 10s. sterling. The price was immediately paid, and the horse delivered ; and the pursuer had hardly gone thirty yard's with him when he discovered that the horse was racked or slipt in the back, ai^d had also a blemish in one of his eyes. Upon this he April, 1855. — 36 558 BOSS ON OOMMEBOIAL LAW. immediately insisted, that the defender should take back the horse and repay the price. This he refused to do, and said, that the horse had got the rack coming over from Ireland in a boat. Upon this Ralston brought a pro- cess, for repetition of the price against Robertson, before the sheriff, " who assoilzied the defender, in respect it was not alleged that he upheld the horse to be sound ; and as the faults alleged were not hidden or concealed faults." Soon after this the horse was seized and condemn- ed by a sentence of the Justices, of Peace of the county as an Irish horse. r*S1 'in Pleaded for Ralston in an advocation. — That the *defender L J certainly knew of the fault, as appeared from his saying that the horse had been racked by coming over in a boat ; and therefore it was an act of fraud in him to sell what laboured under any material defect, without giving the least hint of it to the buyer. But whether the defender knew the defects the horse laboured under or not, the action for repetition of the price was well founded. It is implied in the very nature of every bargain of this kind, that the thing bought is to be free of faults, especially of such faults as occur in the present case, which render the thing sold altogether useless, and which no man would have purchased if he had known of the faults attending it. In all sales there is an obligation upon the vendor, omne vitium ahesse; and it is founded in the implied warrandice of the contract, that the seller is to make up to the buyer the loss accruing to him from faults which were unknown, and not under his consideration at the time of the bargain. The horse appears clearly to be an Irish horse, and was accordingly seized and condemned as such; and therefore the pursuer, who was ignorant of his being an Irish horse, is entitled upon the implied warran- dice of the contract to repayment of the price from the seller; more especially as he knew him, at the time of the bargain, to be an Irish horse, and so was knowingly versans in illicito. Pleaded for Robertson the Defender. — That he had bought the horse at the public market only a very little while before he met with the pur- suer : That he never offered or undertook to warrant the horse as free from faults ; on the contrary, he told the pursuer expressly, that he knew nothing about the horse but what he saw, and could not venture to up- hold him, as he had not had him five minutes in his possession ; so that it was evident there was no fraud intended, nor any art or deceit prac- tised upon the pursuer. If the seller had upheld the horse as sound, he would have been liable ex contractu. If he had wilfully deceived or imposed upon the pursuer, he would have been liable ex delicto. But as neither of these was the case, it is not easy to see upon what principle of law repayment of the r*816T P"*'^*'^° ^® demanded after *the bargain was completed on both L J sides, and the property absolutely transferred. With respect to the horse being condemned as an Irish horse, the de- fender did not Warrant the horse ; and therefore cannot be made liable on the imaginary implied warrandice contended for by the pursuer: neither is it easy to conceive upon what right or pretence the officers of OONTEAOT OF SALE. 559 the revenue could seize the horse above twenty miles from the sea, and after he had been so long in the country; nor does it appear in what shape or upon what terms he is said to be condemned. If the pursuer therefore has allowed the horse to be taken from him without any good reason, he has himself alone to blame, and the defender cannot be made liable for it. It was mggesUd from the bench. That when a man sells a horse for full value, there is an implied warrandice, both of soundness and title, nor is there any necessity to prove the knowledge of the seller. The Lords " found the defender liable to the pursuer in the price of the horse." II- — PATEKSON V. DICKSON. Jiin. 22, 1850.— S. 12 Dunlop, 502. William Paterson, drysalter, Glasgow, through the agency of Duncan M'Gown, purchased from James Dickson a quantity of from 125 to 135 tons of Ichaboe guano, at the price £7, 5s. per ton. This bargain was constituted by letter addressed by Paterson to M'Gown, and handed by him to Dickson. It was farther represented verbally to the purchaser, through M'Gown, as being an excellent parcel, containing from nine to ten per cent of ammonia, and that it had been imported direct from Icha- boe to the Clyde. Previous to the purchase, Paterson, the purchaser, and M'Gown, had gone to the store where the guano was deposited, and taken a sample from it. It was also represented *to the purcha- (-,„, „_ ser that there was a first-rate analysis of the guano, which was L J then in the hands of a third party, but was to be afterwards produced for the purchaser's satisfaction. The purchaser having in the meantime, upon the day following that on which the bargain was made, proceeded himself to analyze a portion of the guano, and finding the results difier- ent from what bad been represented to him, he declined to accept the bill which it had been agreed that he should grant for the price, until the promised analysis was produced, with satisfactory evidence of the cargo having been all shipped from the island of Ichaboe. It subsequently turned out that there were two analyses for the parcel of guano, one of them being of guano of good quality, and the other of a very inferior description. It appeared from a proof which was led in the Inferior Court, that the guano in questionhad consisted originally of two parcels, the one of eighty and the other of fifty tons, and that the latter parcel had come to Glasgow from Liverpool, and the two parcels had been mixed together at a store in which they were lying. The guano was subsequently analyzed, under a remit from the Sheriff- Substitute of Lanarkshire, by Dr. Thomson and Professor Penney. The latter stated it to contain 2.25 per cent, of the ready-formed ammonia, and that it was not pure Ichaboe guano, but consisted of guano with a very considerable admixture of chips and fragments of wood, coal-ashes, sand, and earthy and saline matters, and that it was therefore a spurious and 560 BOSS ON OOMMEROIAL LAW. adulterated article. The report by Dr. Thomson was to a similar effect, and stated, that the sampk analyzed by him was not that of a genuine guano either from the Cape of Good Hope coast or from Peru, and that it was adulterated to the extent of at least seventeen per cent. It also appeared from the evidence of Professor Penney, that while the sample examined by him contained scarcely three per cent, of formed and un- formed ammonia, the quantity usually found in first-rate Ichaboe guano was from twelve to thirteen per cent., and the quantity found in average parcels was eight per cent. Several merchants were adduced as witnesses for the pursuer, who stated that they considered the parcel in question to be Ichaboe guano. r*81 81 *Dickson brought an action before the Sheriff-Court of Lanark- L J shire for the price. The sheriff having decerned in terms of the conclusions of the libel, (altering the judgment of the Sheriff-Substitute,) Paterson presented a note of advocation. Lord Ivory, Ordinary, pronounced this interlocutor : — " Having heard counsel for the parties, and considered the closed record, produc- tions, proof, particularly the reports of Drs. Penney and Thomson, and whole piocess, — Advocates the cause, and recalls the judgment sub- mitted to review : Einds that the sale libelled was per expressum a sale of Ichaboe guano, by which description both parties must be held to have had in view (whatever its quality or otherwise) genuine guano, imported from the island of Ichaboe ; but finds it proved that the article tendered for delivery by the pursuer was not, or at all events was not wholly, genuine Ichaboe guano, but, on the contrary, was a mixed and spurious article, to a certain considerable extent adulterated with sub- stances which were not guano at all : Therefore, finds that the defender was not bound to receive or to pay for the article thus tendered, as duly implementing the conditions of his contract; and, in respect thereof, sustains his defences, assoilzies him simpliciter, and decerns : — Finds him entitled to expenses in this Court and the Court below." Dickson reclaimed. Lord Justioe-Clerk. — ^I am willing to take this case as it appears on the letters, simply as a bargain for so many tons of " Ichaboe guano," at the price of £1, 5s. per ton; although at the same time I by no means think that the defender, were it necessary for his case, ought to be cut out of the benefit of M'Gown's evidence as to what passed between the parties. There seems of late years to have been an attempt to get rid of the rule of our law as to the guarantee on the part of the seller, of the quality of the article sold by him. I have always held it to be a rule of the law of Scotland, that when an article is sold at a good market price, this implies a warranty on the seller's 'part that it is of good quality, or of the best quality, according to the price and the circum- r«R1Qn ^*''*°<'^s °^ '^^ S^^^' ^'^'^ *^^ ^^ important feature of the law of L J Scotland, and one in which it is favourably distinguished from that of England ; and I see that in a late case in the Court of Queen's Bench, is was regretted that no such doctrine obtained in England. OONIBAOT OF SALE. 561 Now this was a sale of Ichaboe guano j this was the commodity that was sold. When you purchase Ichaboe guano, you are entitled to get an article containing the properties which peculiarly distinguish it from other manures, and an article corresponding in quality to the price you pay for it. You are not purchasing common stable manure; you are purchasing guano, and that description of it known as guano from Icha- boe. In this case, although the mixing appears to have been done before the article came into the pursuer's possession, yet he was aware of it. There had been originally two parcels, one of which only was genuine Ichaboe guano, and the bad was mixed with the good to make both pass as a first-rate article. This, it is said, is a common practice in the trade. So we are told also, in the trial of Bannatyne, the case as to the adulter- ation of the oatmeal. It was then said that oatmeal, mixed up with thirds of wheat and barley, and other things, was known and passed in the trade as oatmeal. The plea is something similar in this case. Here an adulterated article is mixed up, and the price of good Ichaboe guano is asked for it; and we are told that an article such as this passed in the trade as Ichaboe guano. It is not of any consequence how the adultera- tion has taken place. Although it is quite obvious that it was purposely done by some one, it does not appear that it was done by the pursuer. It is very possible that the coal-ashes, &o., that were found in it, might have come from the fires of the sailors who were living on the island, and who may have chosen to mix these substances with the guano to swell its bulk ; but this cannot relieve the pursuer. He was bound to see that he sold good Ichaboe guano, and it is plain that a most infe- rior article was tendered to the defender with the knowledge of the sel- ler. It is to be observed also, that the objection was here taken tempes- tive. The day after the bargain was completed, the defender having been led to suspect, from his own analysis, that something was wrong, wrote, refusing to close the transaction till the promised analyses were produced. *Lord MoNOREiFP. — I am of the same opinion. I concur in r»g20l the law as laid down by your Lordship, that a sale of an article at the highest market price implies a warranty that the article is of the best quality. Now there is here evidence that the guano was mixed up of two parcels, one of them probably pure, and the other very much adulterated. Professor Penney and Dr. Thompson both say the same thing, that the sample examined by them was not of pure Ichaboe guano. In these circumstances, I think the judgments of the Lord Ordinary and the Sheriff-Substitute are right, and am for adhering. Lord CoCKBtTRN. — I am of the same opinion. The Court then adhered. The case of Balston v. Robb, July 9, 1808, was an action for the price of a horse and the defence was, that the horse was unsound mconsequenee of being affected with the disease in its feet called the running thrush. The Lord Ordinary 562 ROSS ON OOMMEROIAL LAW. pronounced the following interlocutor, — " Finds it proved that the grey horse had running thrushes in his feet, particularly in his far fore-foot, at the time when he was sold by the pursuer Ealston to the defender Robb: Finds, that the disease called running thrushes, although capable of being cured, and sometimes easily and speedily cured, does at the time render a horse unfit for travelling on the high road ; therefore, without pretending to understand whether such a horse can be considered as a sound horse, finds that a horse which cannot travel on the high road is not a marketable commodity, fit for the purpose for which he is intended : Finds, that every seller is bound in law to warrant that his goods are marketable, fit for the immediate use for which they are usually intended : Finds, that the cir- cumstance proved that the defender Robb did employ the farrier Kinnell to exam- ine the horse at the time of the bargain, is not relevant ; as any such examination by a purchaser either of horses, or any other commodity, does not prevent his claim of warrandice against the seller, that his goods shall be marketable, and fit for sale, unless warrandice be expressly waived; therefore assoilzies the de- r*82n '^^'"l^'^i "'"^ decerns." To this interlocutor the Court adhered. *" Some I- J of the Judges were of opinion, that a running thrush in its early stage, and in its mildest and most innocent form, and where it did not produce actual lameness, did not !,in the fcontemplation of law, render a horse unsound ; and ought to be numbered among those slighter and more immaterial imperfections of which the concealment did not void the sale, and to which warrandice did not apply. A majority of the Judges, however, were of a different opinion, adopted the principles of which the interlocutor of the Lord Ordinary contains a summary, and observed — Under the warrandice of the sale, whether derived from the pay- ment of the market price of a sound and unblemished horse, or from the express stipulation of the parties, the purchaser is entitled to have a horse immediately fit for its purpose. He is not understood in law to go to market with the view of purchasing a commodity of which he cannot have the immediate use, — which may require a course of medicine and care to render it fit for its purpose, — and which demands the exhibition of more than ordinary skill and expense to preserve it in a state of usefulness, or perhaps from utterly perishing. If, as alleged by the pursuer, the disease is so insignificant as to produce no inconvenience, or lame- ness, the communication of the fact to the purchaser will not reduce the price of the commodity in the market. If, on the other hand, it is a disease which, being known, diminishes the value and consequently the price, which is intimately and necessarily connected with lameness, of which a course of medicine and attention is required to accomplish the cure, and extraordinary skill to prevent the recur- rence — the concealment of it must and ought to void the sale. The peculiar prin- ciples of concealment which are vulgarly believed to obtain in transactions in the trade of horses, cannot receive any sanction in a, Court of Justice. If such are really admitted and acted upon, they ought to be reprobated, The legal warran- dice in the purchase of a horse must have the same extent as in the purchase of any other commodity, and cannot be cut down by distinctions which are more nice than honest. The prevention or abolition of concealments may tend in no slight degree to increase or restore the respectability of that department of trade. Run- ning thrushes are a disease which, whether considered as arising from a local injury or from a vicious habit, it requires a certain degree of extraordinary care to prevent, alleviate, or remove ; and while the disorder existed, the soundness of the animal, or its freedom from lameness, could not be depended upon for a day or an hour." *WHERE A PtJRCHASER IS NOT IN A POSITION TO EXAMINE THE ARTICLE SOLD, THERE IS AN IMPLIED WARRANDICE AGAINST MATERIAL DEFECTS. [*822] DUTHIE V. CAKNEGIE. Jan. 21, 1815.— S. F. C. 162. In the month of June, 1811, Mr. Carnegie purchased from Mr. Duthie OONTEAOT OF SALE. 563 one-eighth share of the brigantine Medea, of Aberdeen, at the price of JiWO sterling. At the time when the transaction was entered into, the vessel was chartered, on, and was performing a voyage to Quebec, for a cargo of timber to Aberdeen, or some other British port. Within a few days of leaving the harbour of Aberdeen, the Medea had been obliged to put into the port of Stromness in a leaky condition. The vessel sailed again, and arrived at Quebec, and after taking in part of the cargo at Montreal, again returned to Quebec on the 20th July, when the loading was com- pleted. On the 14th August, immediately after leaving Quebec on her homeward voyage to Aberdeen, it was discovered that she was making a good deal of water, in consequence of which the master returned into the harbour and got a survey made. The surveyors gave it as their opinion, that repairs were necessary to enable her to proceed on her homeward voyage to Aberdeen; in consequence of which, she was sheathed and otherwise repaired at Quebec, and finally left that port on the 13th October, on her homeward voyage. In the course of the voyage she was driven ashore, and stranded on the island of South Uist on the 23d November, 1811. ^ Mr. Carnegie brought an action of reduction of the contract of ven- dition before the Judge-Admiral,— 1st, On the ground that the sale had not been effectually completed prior to the 24th of June, the date of the said vendition ; and, 2dly, That a concealment of material defects in the vessel had been fraudulently made by Mr. Duthie. In his pleadings in the Admiralty Court, he founded on various letters which, he said, showed the situation of the vessel, and had not been duly communicated to him; and the Judge- Admiral having advised this *petition, 16th July, f^^ano^ 1812, with " the copy .of several letters from the master of the L °^^J Medea, produced with the petition, appoints this petition to be answered, and desires the respondent to advert to the point of law, whether, on the supposition of the facts in the said letters being true, these facts would be sufficient to annul the vendition, and to explain what was the meaning and extent of the absolute warrandice contained in the vendi- tion." This interlocutor was afterwards pronounced (11 November, 1813) : — " The Judge-Admiral having resumed consideration of this process, and advised the same, with the proof adduced by the defender, and the proof led by the pursuer, finds it proved and admitted on all hands, that, after the Medea sailed from Aberdeen, she became leaky, and put into Stromness for repair, which situation was notified and explained by her captain, while at Stromness, to the defender by letters, whereby there was an essential defect in the vessel, which, to its full extent, was known by the defender, and which the pursuer could not have access to know, unless by the defender communicating to him the captain's letters, or their full and true import : Finds, therefore, that it was the defender's duty, when he bargained with the pursuer for a share of the Medea, to show the said letters, or explain their import, before he concluded the contract of sale, otherwise he was taking an undue and unjustifiable advantage of the pursuer : Finds no sufficient evidence that the defen- 564 ROSS ON COMMERCIAL LAW. der performed this duty. Therefore, as the defender is proved to have known the defect of the Medea, and has failed to prove that he showed to the pursuer the captain's letters from Stromness, or communicated their full import, sustains the reasons of reduction, decerns against the defender for repetition of the price paid by the pursuer for the eighth share of the said vessel, with interest, as libelled ; and finds him liable in expenses, of which allows an account to be put in. Mr. Duthie then brought an action of reduction reductive, and Lord Pitmilly, (14th June, 1814,) "In respect the bargain of sale between r*R94.1 *^^ parties was concluded when the Medea *was at sea, and at L -I the time of the sale, the ship, although the shares of her held by the pursuer were insured, had latent faults, which rendered her not sea-worthy ; and also, in respect the pursuer has failed to prove that he communicated to the defender, before the vendition was executed, the important information with regard to the state and condition of the vessel, which he had previously received from the captain at Stromness, , sustains the defences, assoilzies the defender, and decerns." The case then came before the Inner-House by petition and answers. The facts of the case were minute and circumstantial, and it is not . necessary to notice them farther than has been done in the narrative and interlocutors quoted. The Court agreed in opinion, with regard to them, with the Judge-Admiral and Lord Ordinary. On the law, the pursuer argued : — A purchaser ought to inquire for himself, and must take his chance of everything but fraud, or absolute unfitness of the article for the end proposed ; Ersk. iii. 3, 9, and 10. The defect must be radical and enormous to warrant a reduction ; Diet., vol. ii. p. 357 J Kincaid v. Dickson, 15th December, 1808. But there was no such radical defect in this case, which is clearly proved by her having made out her outward voyage in safety, and even reached Scot- land on her way home ; and therefore if, as is not the fact, the whole circumstances had not been disclosed, there is no blame attachable to the pursuer; Blaekstone, b. iii. c. 9 ; Bnller, pp. 30 and 31 ; 1 Darwin, 176, fol. 7 ; Salk. 211 ; Salk. 21 ; Espinasse, vol. ii. pp. 629, 630, and 632 ; 2 EoU, Eep. 5 ; Comyn on Contracts, vol. ii. pp. 265, 633, 273, 274 ; Peake's Cases, N., p. 115. Answered : — An implied obligation and warrandice that the subject sold shall be fit for the purpose for which it was sold, forms part of every contract of sale ; 1 Stair, 9, 10, and 11 ; 1 Stair, 10, 15 ; 1 Bankton, 19, 2 ; 3 Ersk. 3, 10 ; "Wellwood v. Gray, 16th February, r*825T ' Ralston v. Eobertson, 16th June, *1761 ; Lindsay v. L J Wilson, 1771; Brown v. Lawrie, 16th June, 1791; Durie v. Oswald, 29th June, 1791 ; Brown v. Gilleor, 9th July, 1791; Ralston V. Eobb, 9th July, 1808 ; Hoggersworth v. Hamilton, 6th January, 1665 ; Alston V. Orr, 1st July, 1768 ; Brisbane, 28th November, 1684; Baird v. Pagan, 14th December, 1765; Dickson and Company v. Kincaid, 15th December, 1808 ; Lovel and Pennel v. Macmillan, 21st June, 1809 ; Mackellar v. Henderson and Others, 15th November, 1810. The Court, 21st January, 1815, adhered. OONTBAOT or SALE. 565 WHERE THE ARTICLE SOLD HAS BEEN SEEN AND EXAMINED BY THE PURCHASER, AND THE DEFECT IS NOT LATENT, THE MAXIM, CAVEAT EMPTOR, APPLIES, AND ONCE APPROVED, THE ARTICLE IS HELD UNEXCEPTIONABLE, UNLESS FRAUD IS PROVED AGAINST THE SELLER. MUIL V. GIBB. June, 27, 1840.— S. 2 D. 1227. The respondent Gibb, farmer at Sheils, in the neighbourhood of Aberdeen, raised action before the sheriff of Aberdeenshire against the advocator Mail, baker in Aberdeen, alleging that, on the 9th April, 1836, he had sold to Muil personally, at his farm of Sheils, a quantity of wheat, amounting to twenty-six quarters, deliverable as thrashed out and dressed ; and that upon part of this wheat being thereafter sent to Aberdeen to be delivered. Mail had objected to it, and refused to take delivery ; and concluding to have Muil ordained to receive the wheat, and make payment of the price of the whole quantity sold. In defence, Muil admitted having on the day in question purchased a quantity of wheat from Gibb, but alleged, at all events as to part of the wheat, that he had bought it by sample and not by bulk, and that it had been expressly agreed that the whole of the wheat should be pro- perly dressed before delivery, which had not, in fact, been done ; that the wheat *which had been sent to Aberdeen emitted a strong r^QOf.-, effluvia, and was useless and good for nothing ; and craving that L °'^"J a remit should be made to inspect the same, and to report as to its state. A proof having been allowed, it appeared that, on the afternoon of the 9th April, 1836, Muil and his brother-in-law (Emslie) came to Gibb's farm of Sheils, and purchased from him the whole wheat of the preceding crop, of which part was lying thrashed out in a loft, another parcel was lying in a room in the house, and the remainder was in stack in the stackyard; that Muil, Emslie, and Gibb, came to a barn adjoining the loft where the wheat was lying, and Muil was asked by Gibb to go in and satisfy himself as to the wheat, which he did not do, but looked at a sample brought by Gibb from the loft, observing that there was some corn and pickles of sprouted wheat in it ; that these parties after- wards went into the house and examined the wheat which was lying in the room, and then went to the stackyard and saw the wheat in stack; that Gibb undertook to " dress" the wheat properly, and to Muil's satisfaction, before delivering it, and Muil then offered a price for the wheat per quarter according to the weight, two guineas being the average, which price was accepted by Gibb ; that two parcels of the thrashed wheat were, on the 19th and 29th April following, sent to Aberdeen, having been previously turned and put through the fanners and sacked, the weather being then very wet ; that the barn below the loft where the wheat lay communicated by two apertures with a byre where animals were kept; that the wheat taken to Aberdeen when examined was found to have contracted a strong and offensive smell, 566 ROSS ON OOMMEBOIAL LAW. which was not observed by the parties present at the time of the sale, and to be of inferior quality. The Sheriff-Substitute, holding that the sale was a sale by bulk and not by sample, found "that the bargain for the wheat in question was concluded at the pursuer's farm, and that the deterioration which the wheat appeared to have sustained, after having been bought, was not occasioned by any culpable conduct on the part of the pursuer, and therefore decerned against the defender for the price of the wheat," with expenses. To this judgment the sheriff adhered. r*R97T *Muil then brought an advocation, in which he pleaded : — L -I As to the wheat in the loft, there was no fair or legal sale, the latent though existinig defects of the grain occasioned by the situation in which it had been placed, contiguous to the byre, being concealed from the purchaser, although entering materially into the validity of the con- tract, and rendering the wheat unmarketable. It was an essential and suspensive condition of the sale, that the whole wheat sold should, before delivery, be properly dressed, and the wheat not being so dressed in point of fact, and not being in a finished and de- liverable state, the bargain was not completed, and the advocator was entitled to reject the grain and hold the contract at an end; the law being clear, that the fact of anything remaining to be done suspends the completion of the contract and the passing of the risk. Lord Cdninghamb, Ordinary, pronounced the following interlocutor: — "Finds it proved, that the defender, on 9th April, 1836, came to the pursuer's farm-steading and purchased the whole of his wheat of the pre- ceding crop, at the average price afterwards calculated and decerned for by the sheriff: Finds, that this was not a purchase by sample, but by bulk, and on actual inspection of the wheat, both thrashed and unthrashed, as it lay in the granary, in the house, and stackyard of the pursuer : Finds, that seven quarters of the said wheat, being that deposited in the pursuer's said granary or loft, were sent to the defender on the 19th of April, 1836, in terms of his own letter to the pursuer, written on the preceding day, and that the defender, on the following day (20th April) objected to the said wheat as not conform to sample, and soon after- wards deposited the same in the weigh-house of Aberdeen, then held in lease by himself : Finds that, on the 29th day of April, 1836, the pur- suer tendered to the defender three quarters more of the said wheat, being that lying, as before specified, in the defender's dwelling-house, and the defender having refused to receive the same, it was deposited by the pursuer in the house of William Hampton, in Aberdeen, which de- posit was well known to the defender : Finds no fraud or deceit alleged r*8281 *° '^'^^^ ^^^^ practised by the pursuer in selling the said wheat ; L J *and finds, that the defender has totally failed to prove, in such a manner as was competent to him, or by any satisfactory evidence, that the wheat delivered and tendered to him as aforesaid, on the 19 th and 29th April, 1836, was different either in bulk or quality from that which he had specifically purchased on the 9th of April ; but that it is, on the contrarv, nroved that the whpat delivered and tendered as aforesaid was CONTRACT or SALE. 567 the identical wheat purchaBed by the defender, and that the pursuer's servant took all due care of it during the short interval that elapsed between the date of the purchase and the transmission of the grain to Aberdeen : Finds, that the remainder of the wheat was thrashed by the pursuer in or about the month of June, 1836, and that the defender Unaccountably refused to receive the same : Finds, that, although the present action came into the inferior Court in June, 1836, and though the pursuer proposed, in September, 1836, that the whole wheat should then be sold, and the proceeds thereof consigned, to abide the issue of the suit, the defender unreasonably and improperly refused to consent thereto ; in consequence of which the wheat was not sold till the months of May and November, 1837, when it must have been greatly deterio- rated by its mode of keeping for nearly eighteen months after it was thrashed. On these grounds. Finds that the defender has failed to estab- lish any legal ground to justify him in refusing payment of the price of the said wheat : Therefore adheres to the interlocutor complained of, repels the reasons of advocation, and remits the cause to the sheriff, dmpliciter and decerns : Finds expenses due." In a Note his Lordship observed, — " As this is a case in which a parol proof has been led in the Inferior Court, it was necessary for the Lord Ordinary, in terms of the Statute, to set forth in specific findings what he conceives to be the import of the proof, as those are final, if con- firmed by the Court. If these be correct, it is supposed there can be little doubt as to the conclusions in point of law, which must follow from the facts as so ascertained. " In particular, the leading fact on which the Lord Ordinary proceeds, appears to him to be proved beyond all controversy, *viz., that r*D.nq-| this was a sale by bulk, and not by sample. On that point the L J evidence of George Emslie, the defender's brother-in-law, (apparently a very candid witness,) is quite decisive. He, as well as other witnesses, bring the defender to the pursuer's premises to inspect the wheat ; and Emslie proves, not only that the defender ascended the stairs of the granary loft, and got as much out of the sack as he desired to look at, but that the parties afterwards proceeded to the room, and saw three quarters of the wheat spread out there, and then went to the stackyard and saw the unthrashed sheaves in stack. If ever there was a sale by bulk, therefore, in the world, this appears to be one. " Perhaps the Sheriff-Substitute has gone rather too far in holding that the wheat, when purchased on the pursuer's premises to be deli- vered by him at Aberdeen, remained after the bargain to all effects at the risk of the defender. That is a question of circumstances, which the Lord Ordinary has not thought it necessary to enter into. When grain is bought to be delivered at a distance, it is clear that there are certain risks which will lie upon the seller, unless the purchaser refuses, for an unreasonable length of time, to take delivery of the grain. But this at least seems clear, that when grain or any commodity is bought specifi- cally in bulk, after full inspection by the buyer, the onus of proof lies on the latter to show that the article is either different from, or has been 568 BOSS ON COMMEBOIAIi LAW. grossly misused by the seller as custodier, subsequent to the sale. But the Lord Ordinary can find no such proof in the present case. f< The defender's theory seems to be, that the wheat in the loft caught an offensive smell, from the breaths of the cattle in a byre which was con- tiguous to the cart-shed ; but this appears very improbable, for the loft was not above the byre — it was above the cart-shed, and separated by a stone wall from the byre loft. There were no doubt a few feeding boles or holes, for throwing in turnips to the cattle, in the wall on the ground story between the cart-shed and the byre ; but as that shed was open, having no wall or door in front, it seems very improbable that any efflu- via so strong as to affect grain could ascend to the loft of a cart-shed so exposed. But separately, and more particularly, if the grain in this P^Qon-i loft really was *affected by any noxious smell when delivered at L -J Aberdeen, the evidence goes clearly to prove that this injury could not possibly have come over the grain in the very short interval between the day of inspection and sale, and the day of delivery. For the wheat in the loft was thrashed early in the winter, and was lying there at Martinmas, 1835. See the evidence of Alexander M'Lean, at the commencement of his deposition, and George Emslie, who depones that he saw the wheat lying in the loft on the night of a ball given' in the barn in the course of the winter, or early in spring, 1836. If the wheat, therefore, got any taint from proximity to the byre, it must have been long prior to the time when the defender inspected and bought it. He saw where it lay, and made no objection. Again, while the defender and his witnesses have, from the first, alleged that the whole wheat was tainted with the smell of dung, it is to be remembered that three quarters of it never were near the byre. That portion was deposited in the house of Sheils ; yet it was rejected on the same ground, and said to be of the same damaged quality as the other parcel. " The Lord Ordinary considers that faei of great importance in the present question. The defender has argued that he only saw a sample of the wheat in the loft above the cart-shed, which he directed the pur- suer to bring out in a basket. But he stood on the stair of the granary and was satisfied with the portion brought out to him. The law has never gone further than was laid down by Lord Ellenborough in the case of G-ardener, 4 Campb. 144, in which he said, 'where there is no oppor- tunity to inspect the commodity, the maxim of caveat emptor does not apply.' But if full opportunity has been given for inspection, and if the buyer's plea comes to this, that he made an imperfect or insufficient inspection, it would be very dangerous and unjust to people in trade to depart from the maxim. Here, also, the defender is met by the remark that if his inspection of the wheat in the loft was partial or hasty, that at least did not apply to his inspection of the three quarters lying in the house of Sheils; but the defender never attempted to show that the wheat sent from the loft was different from the stock which he saw in the house; on the contrary, his witnesses state the same objection to both parcels OONTEACT or SALE. 569 *"From the proof as to the quality and condition of the two p^oqn parcels, the Lord Ordinary is satisfied that the remark of the L J Sheriff-Depute (Mr. Murray) is well founded, that any smell attached to this wheat did not arise from its being stored near the byre, but was probably attributable to its having been grown in a late wet country, having a good deal of sprouted pickles among it, and having been early thrashed. But all these things the defender had an opportunity of sat- isfying himself upon, when he saw where the wheat grew, and inspected it in bulk ; accordingly, his brother-in-law, Emslie, swears that when the wheat was brought from the loft, the defender remarked that there were some pickles of 'sprouted wheat amongst it, and a good deal of, pipple' — while all the length he went, on inspection of the wheat in the room, was to observe that there was 'some good wheat amongst it.' "It would thus appear that the defender may have made a mistake or miscalculation in purchasing this wheat, from which the law cannot relieve him. The wheat, at best, could never have been bought by any baker or miller as a superior article. The place of its growth and its condition, as mentioned by Emslie, and the low price of 19*. per boll, all show that it was treated as of a very inferior quality. The pursuer's plea must come to this, that he did not think it so very inferior on his inspection as he afterwards found it upon delivery. But that can form no relevant ground for rescinding the bargain. " Besides, the statements of the defender's witnesses as to the quality of the wheat, (such as it was,) seem to be greatly exaggerated ; and his conduct, when it was delivered to him, was extremely exceptionable. He sent it to the weigh-house, and kept it there for above a year in bags, without calling for a judicial inspection. If he had called for such inspection, it would probably have appeared, from a comparison between the wheat sent from the loft and that stored in the house, that both were previously in the same condition, and formed parts of the same stock, and as the defender confessedly saw the whole wheat in bulk on the floor of the house, he was bound to take both parcels, unless there was some glaring difference between them, which he failed to prove. Then he refused to consent to its sale judicially in September, 1836, for behoof of *all concerned; so that, after having been kept in bags for r*g3o-i nearly two years after it was thrashed, the first parcel brought L -I only 20s. a quarter, and the second 25s. No wheat of the best quality could have stood such treatment. But the very price obtained for the grain, after it had been kept under such disadvantages, satisfies the Lord Ordinary that the wheat could not have been such stuff as the defend- er's witnesses describe it, in April, 1836. "The precedents and authorities applicable to the case appear strongly to support the plea of the pursuer. The case of Milne, in 1809, (Fac. Coll., 1st February, 1809,) was a sale by sample; and the wheat having been deliverable at Stirling, it had got heat on board of ship, and was thus admitted to be disconform to sample, in consequence of which the purchaser was liberated ; but the distinction between that case and the present is obvious, as no injury was sustained here in the conveyance of the wheat from the pursuer's premises to the defender's. The present 570 ROSS ON COMMEBOIAIi LAW. case bears a greater similarity to the English case of Bluet, 1 Starkie, 384, of which a brief summary is given by Professor Bell in his Illus- trations, vol. i. p. 98, in which a purchaser who had bought a bowsprit which had turned out rotten, was bound nevertheless to take it, because he had seen it, and had an opportunity to satisfy himself as to it before he made the purchase. It was said that he could only set aside the bargain on the ground of fraud. But the pursuer's conduct here is in a very peculiar manner exempt from all suspicion of any deception on his part." .Muil having reclaimed, — The CouET were unanimously of opinion, that the sale in question was a sale by bulk and not by sample ; that Muil had full opportunity afforded him of examining the wheat at the time of the sale ; and that there was no ground for holding, that the evidence as to the alleged suspensive condition that the wheat should be properly dressed, brought the case within the rule of. the English cases referred to in the authori- ties cited by the advocator, and that the law laid down in Bell's Princi- P^j,nq-i pies, § 96, was to be applied, that "where the buyer has *him- L J self seen and examined the goods, the general rule is, caveat emptor — the buyer's eye is his merchant ; once approved, the subject is held unexceptionable, unless fraud shall be proved against the seller." Their Lordships accordingly adhered to the interlocutor, finding addi- tional expenses due. A SELLER IS LIABLE FOR DAMApES ARISING FROM LATENT DEFECTS IN THE ARTICLES SOLD BY HIM, ALTHOUGH ACTING OPTIMA FIDE, AND IN IGNORANCE OF THE EXISTENCE OF THE DEFECTS. DICKSON v. KING AID. Dec. 15, 1808.— S. F. C. In the year 1802, James Kincaid, a tenant of a small farm of about twenty acres of land, sowed about half an acre of his garden with Swedish turnips. Of the seed arising from the turnips thus sown, he sold two hundred weight to Messrs. Dickson, seed-merchants in Edin- burgh, at the rate of lOd. per pound. Messrs. Dickson sold this seed at a profit of 80 per cent, to various customers ; and, among others, to the Duke of Buccleuch, Sir William Forbes, and Mr. Cauvin, writer to the signet. Mr. Cauvin sowed |an acre of land with this seed ; but the produce, instead of being Swedish turnips, was a spurious or bastard variety of that plant. Mr. Cauvin pursued an action against Messrs. Dickson, for having sold a spurious and degenerate variety, instead of real and sound seed of Swedish turnips j concluding for reparation of the loss thence arising. In this action Messrs. Dickson were found liable in damages. Messrs. Dickson then raised an action of damages against Kincaid, narrating the loss of character which they had sustained in their profes- CONTRACT OP SALE. 571 sion by selling an imperfect commodity; the action of damages to which tuey tad been subjected in consequence thereof: and eoncludin °"'' °^^' "^ *^® ^^'^ °°* having been *accepted in course." •- -I On the Brd February the respondents wrote, " On referring to our letter accepting your offer of 2000 tons pig iron, we find we dated it 31st January, whereas it was written on Thursday the 30th, and we can prove that it was posted on that day. Of course the 2000 tons is now booked, and we wait your answer to our inquiry respecting the additional 1000 tons." On the 3rd of February the price of pig iron was still 65s. per ton, but on the following day it rose 6s. per »ton, and in the course of the OONTRAOT OF SALE. 595 month it reached 80s. per ton and gradually ascended, until in the month of April it was as high as llOa. At the time at which this correspondence took place, two mails were despatched daily from Liverpool to Glasgow, one at one o'clock in the morning, t^e letter-box for which closed at midnight; and the other at a quarter past four o'clock in the afternoon, the box for which closed at a quarter past three o'clock. From the private post-mark on the letter, written on the 30th, but dated the 31st, it appeared that it had been put into the post office at Liver- pool between a quarter past six and a quarter past eight o'clock in the evening of the 30th. According to the regular course of post, this letter should have been dispatched from Liverpool at half-past one o'clock in the morning of the 31st January, and it should have reached Glasgow in about twenty-two or twenty-three hours thereafter, or about half-past eleven at night of the 31st; but owing to some interruption of the mail it did not reach Glasgow until one o'clock in the afternoon of the 1st February, and the letters were of course not delivered to the merchants till later in the same day. In these circumstances the respondents brought an action against the appellants, concluding for the damage incurred by them « in and through the refusal of the appellants to deliver the 2000 tons of pig iron in terms of their contract, and generally in consequence of their breach and non- implement of the same." The appellants pleaded in defence, that according to the practice of merchants in the iron trade, their offer was not *binding unless r*07m accepted in course of post; and as it had not been accepted in L J time it was not binding. This action was advocated from the Sheriff Court, in which it had been brought, to the Court of Session, where it was sent for trial, upon the following issue : — " Whether about the end of January 1845, the pur- suers purchased from the defenders 2000 tons of pig iron, at the price of 65s, per ton, and whether the defenders wrongfully failed to deliver the same, to the loss, damage, and injury of the pursuers?" Upon the trial of this issue, the appellants objected to the examina- tion of one of the post-office clerks, with a view to show when the letter dated the 31st January was put into the post-office at Liverpool, and ought to have arrived at Glasgow, because " the pursuers having admitted that they were bound to answer the defenders' offer of the 28th, by letter written and posted on the 30'th, and the only answer received by the de- fenders being admitted to be dated 31st January, and received in Glas- gow by the mail, which in due course ought to bring the Liverpool letters of the 31st, but not Liverpool letters of the 30th, — it is not competent in a question as to the right of the defenders to withdraw or fall from the offer, to prove that the letter bearing date the Slst January, was written and despatched from Liverpool on the 30th, and prevented by an accident from reaching Glasgow in due course, especially as it is not alleged that the defenders were aware, (previous to the 3d February,) of any such accident having occurred." This objection was overruled by the Judge who tried the cause, and 596 ROSS ON OOMMEROIAL LAW. an exception was thereupon taken by the appellants to the admission of the evidence. In the course of the trial a number of merchants were examined as to the time within which the respondents' offer should have been accepted, some thought, where nothing was said about the course of post, that the party might take the day on which he received the offer to consider, and answer it on the following day.. Others did not draw any distinction between an offer to be answered in course of post and one without that r*871 1 condition, and thought that both ought to be answered on the L J *day on which they were received, without regard to whether a mail was despatched once or twice in the day. While others thought that an offer to be answered in the course of post should be answered by the very first mail despatcbed after receipt of it. In charging the jury, the Judge stated, that " he adopted the law as duly expounded in the rubric of the case of Adams and others, 6th June 1818, in Barnwell and Alderson, and which is as follows ; — ' A. by a letter offers to sell to B. certain specified goods, receiving an answer by return of post ; the letter being misdirected, the answer notifying the acceptance of the offer arrived two days later than it ought to have done ; on the day following that when it would have arrived, if thd original letter had been properly directed, A. sold the goods to a third person : Held that there was a contract binding the parties from the moment the offer was accepted, and that B. was entitled to recover against A. in an action for not completing his contract.' " Thereupon the appellants tendered these four exceptions to the charge : " In so far as his Lordship directed the jury, in point of lawy that if the pursuers posted their acceptance of the offer in due time according to the usage of trade, they are not responsible for any casualties in the post- office establishment. « In so far as his Lordship did not direct the jury, in point of law, that if a' merchant make an offer to a party at a distance by post letter, requiring to be answered within a certain time, and no answer arrives within such time as it should arrive, if the party had written and posted his letter within the time allowed, the offerer is free, thougb the answer may have been actually written and posted in due time, if he is not proved to be aware of accidental circumstances preventing the due arrival of the answer. " In so far as his Lordship did not direct the jury, in point of law, that in the case above supposed, if an answer arrives, bearing a date beyond the time limited as above for making answer, and arrive by a mail, and be delivered at a time corresponding to such date, the offerer is r*879T ®''***^^'^ *" consider himself *free to deal with the goods as his L -I own, either to sell or to hold, if he be not in the knowledge that the answer received was truly written of an earlier date, and delayed in its arrival by accident. "In so far as his Lordship did not direct the jury, in point of law, that in case of failure to deliver goods sold at a stipulated price and imme- diately deliverable, the true measure of damage is the difference between the stipulated price and the market price, on or about the day the con- tract is broken, or at or about the time when the purchaser might have supplied himself." CONTRACT OP SALE. 597 Thereafter the jury found a verdict for the respondents, and assessed the damages at £1500. The Court disallowed all the exceptions. , Lord Maokenzie.— We cannot sustain any of these exceptions. Many of them have not substantially been insisted in. Those which were insisted in were the 3d, 4th, and 5th. With regard to the third, I understand the rule 6f law to be this :— If a party makes an offer, the party to whom the offer has been made has a JUS qucesitum to acceptance, provided there be no undue delay on his part. If there be undue delay chargeable against him, then he loses the benefit of acceptance. That is the primary rule. If so, and if the party has posted his acceptance in due time, according to the usage of trade, then he is not guilty of undue delay. The delay here was not owing to any fault of his ; it was owing to some accident or fault in the post-office. That is not undue delay on his part. The risk of that should fall on the other party. According to the rule I have stated, if the answer was posted by him in due time, he had the benefit of the accept- ance. There are extreme cases supposable in which it might be neces- sary to admit exceptions to the general rule. In a case of extreme delay, which did not occur here, it might be said that the party making the offer might be entitled to rely that it was not accepted. There was nothing of that sort here : there was a mere ordinary casualty or delay at the post-office; and I cannot therefore *hold that there was anything r*s7qT wrong in the direction to the jury, that this party should not lose L J the benefit of his acceptance. The fourth exception is in these terms — (reads.) It is said that a direction in these terms ought to have been given. I cannot conceive cases in which it would be right to give such a direction. But I doubt whether there was here any occasion or opportunity for such a direction. One cannot say that a Judge is bound to give any direction sound in itself which he may be requested to give, if it be not applicable to the circumstances. No doubt a wrong date was here put down. But there were other things making it plain what the date was. A Judge is not called on to give any abstract direction of this nature. But setting that aside, I do not think that here the learned Judge was bound to give the direction craved. The proposition founded on is this : — Suppose the party does intimate his acceptance in good time, and is so entitled to the benefit of it, and that, notwithstanding this, there is something in the letter inducing a belief, a false belief, that he has done the contrary, that he has not accepted it, that is enough to set the party free who made the offer. I cannot say that a direction to that extent should not be given, if there be any thing in the letter to induce the party to believe that he was thereby set free. Such a letter might afford a very good defence to such an action. Suppose he had sold the goods to third parties on the faith that he was thus liberated from his engagement. The answer would be, — You misled me, and therefore you have suffered no damage. But it is another thing to say, that he is absolutely free independently of that, and even after that the acceptance was in point of fact what it should have been. I am not ready to say that he ought to be free in 598 EOSS ON COMMERCIAL LAW. that case. When things remain entire until the error is corrected, the proposition your Lordship was asked to lay down does not apply. As to the other exceptions, they were not argued ; and, therefore, on the whole, I am for sustaining none of the exceptions. Lord FuLLERTON The exceptions here are taken not so much r*874.1 *^g*i'^s* *^s ^*w which the learned Judge trying the case laid L J down, as to his refusal to lay down a law containing propositions which, according to the argument of the defenders, were essential for the direction of the Jury. On a full consideration of the case, with all the advantage of the very able argument which we have heard, I am of opinion that the exceptions ought to be disallowed. But in coming to that conclusion, it may be right to guard myself against the supposition that I have adopted to the full extent the argu- ments of the pursuers ; for, while I am disposed to negative the propo- sitions maintained as law in those exceptions, I do not think that that negative by any means requires or implies the absolute affirmance of some of the propositions urged on the other side. On the general doctrine of offer and acceptance in mercantile transac- tions, there is little difference of opinion. It is allowed on both sides that such an offer requires acceptance, in the first place, to complete the transaction ; and secondly, that the assent or acceptance must be notified debito tempore, that is, as explained by mercantile practice, in course of post. What period the course of post covers must depend on the cir- cumstances of each case. Where there is a daily post, it has been gene- rally held, that an answer posted at any time during the day when the offer comes to hand, is sufficient. We may assume from the verdict in this case, that this was the view of the practice taken by the jury; and there is no challenge of the verdict on that ground, or any exception taken that the Judge did not direct the jury to adopt the view which, I understand, was maintained at the trial, viz., that course of post required an answer to the offer, not merely during the day, but by the first departure of that day which fol- lowed on the receipt of the letter. The fact, then, is now undisputed, as it was merely made out in evi- dence, that the acceptance of the offer, in so far as that denotes an act of the acceptor, took place in course of post. The pursuer received the ultimate offer of the iron on the 30th of January ; and it is proved that the answer containing their acceptance of that offer was posted at Liver- pool on that day. So far all was correct ; but then it happened that in consequence of r*8751 *^'"'i*^®'i' — (explained, I think, by some of the witnesses to have L J been the slipperiness of the rails on one part of the railway) — the letter of acceptance did not reach Glasgow by the arrival on the morning of the 1st February, which it ought to have done in due course, and was only delivered in the afternoon of that day along with other Liverpool letters which had not been posted till the morning of the 31st January. In these circumstances, the defenders maintain that they 'were no longer bound by their offer, because the acceptance, though given quoad CONTRACT OP SALE. 599 the pursuers debito tempore, was not received by and did not reach them in course of post ; that is, within the period which, counting from the date and posting of the offer, would, but for the accident, have been suf- ficient to enable them to receive an answer. Now, that state of the facts raises the question. Whether, in the case of offer and acceptance, the acceptance debito tempore, i. e., in course of post, does, in sound construction of law, mean the act of acceptance in course of post by the acceptor, or the receipt of the acceptance in course of post by the offerer ? And, on considering the nature and object of the rule, which at best is but a rule of practice, enforced from considerations of equity and expe- diency as a rule of law, I can have no doubt that the former is the sound view of the case. The authorities of law writers are decidedly in favour of that view ; and those authorities are confirmed by the consideration of the object and effect of the rule itself. The general principle is, that an offer remains binding till it is with- drawn. The limitation in mercantile cases frequently involving transac- tions about commodities of which the value is subject to rapid fluctua- tion is, that the offer must be accepted in course of post. In other words, the offer, if not so accepted, is held to be declined, and the offerer is held to be entitled so to treat it. The silence of the party implies in this case dissent from the offered terms, and that implication is fair and reasonable enough. But there can be no such implication contrary to the fact. If the party to whom the offer is made positively assents, and takes the usual means of intimating that assent to the offerer, there can be no room for the application *of the rule. He has done all that he was r»a7fin called upon to do, and all that the law requires a party to do in L J order to take off any injurious effect which might otherwise arise, or be presumed from his silence. And it is in this point of view that I think the practice in regard to the intimation of the dishonor of bills has a most important bearing on the present case. There the failure to intimate bars the party of his re- course. His silence is held to amount to a waiver of his right to claim recourse against the party to whom notice ought to be given. But that implication is completely taken off by the proof that a letter containing notice of dishonour was duly posted. The principle of those cases is evidently applicable here, when it is attempted on the part of the defenders to found upon the mere fact of the acceptance not reaching them in course of gost, that legal implication of the waiver of the offer, which in my opinion could have no existence, except on the supposition that the pursuer had failed to take the ordi- nary means of providing that the acceptance should reach them in due course. Having done that, the party is clearly protected according to the principle of the cases alluded to, from any unfavourable implications which otherwise could have arisen from his silence. And in this particular the English case referred to — that of Adams and others though distinguishable in one point, does most certainly afford strong support to the argument of the pursuers. 600 ROSS ON OOMMEROIAIi LAW. There the oflfer was very special, " receiving an answer by return of post," being the very expression which Mr. Bell, in his hypothetical reasoning, holds sufficient to limit the offer to the actual case of the acceptance calculated, and reaching the offerer within the period. Yet there the question seems to have been taken up as being, Whether the party to whom the offer was made, had, or had not done all that was incumbent on him to do ? and that admitting of no doubt, it was ruled that the contract was binding. It is true that there the delay arose from the mistake of the offerers in misdirecting their letter ; but I do not well see how, on the supposition of the offer being limited in point r*8771 °^ *time, that could have affected the question ; for if an offer ■- -* is so limited, and does not reach its destination till the limited time has expired, or must expire before the acceptance reaches the offerer, I think it would be difficult to make out that that was an offer which the party had a right to accept at all. It rather appears to me that that case must have been decided on the liberal interpretation of the words " receiving an answer in course" as meaning nothing more than "you answering in course" — a condition which was obviously complied with by the party posting his letter in course, in reference to the time when he received the offer. Now, the present case is free from the difficulty which might have been raised in the case of Adams. The offer was quite general. The defenders have nothing to act upon but the implication of law ; and I have already stated the grounds on which I consider that implication to be excluded, by the fact of the pursuer's acceptance of the offer in course of post, and of his taking the appropriate steps for intimating that accept- ance to the defenders. But it is here that I find it necessary to make a distinction, which neither party were disposed to notice in the course of the argument — I mean the distinction between the binding effect of the acceptance when put into the post, in barring the offerer from founding on the implication that it was declined, and the absolute completion of the contract. I think the posting of the acceptance by the pursuers had most certainly the first effect. That having been done, there was no silence on their part, and consequently the pursuers were barred from arguing that the offer must be held to hate been declined. But I am by no means pre- pared to go farther, and to say that in the larger question of the actual eompletion of the contract, the mere fact of the putting the letter of acceptance into the post-office has the same effect as if it had not only been put into the post-office, but had been actually delivered to the other party. I should most certainly hesitate to find, that in the supposed case of a letter remaining undelivered for months or years, the mere fact of the letter being put into the post-office completed the contract, so as to keep the offerer bound by an acceptance which never reached r*8781 ^^^' ^^ ^^^^ extent, I think, the expressions *quoted from L -f Mr. Bell, though true enough in relation to the point he was considering, i. e., " in the common case" of the effect of an acceptance, do require some qualification. I do not see how there can be in idem placitum concursus et conventio between two parties, when one of them OONTEAOT OP SALE. 601 remains in entire ignorance of the fact — the acceptance — on which the " concursus et conventio" is supposed to rest. But the conclusion I draw from this is, that, although the act of acceptance in due course by the acceptor may bar the oflFerer from pleading the strict rule, that the offer has been by implication declined, still the question, how far or how long the offerer remains bound, in the event of the aceeptance not reaching him in the ordinary course, must be dependent on the whole circumstances of each case. In short, I think that the point, how far the party is entitled to deal with the com- modities, once offered, as his own, will be just a jury question, for the solution of which no general legal principle can be particularly laid down ; and certainly it is not necessary to consider here how such ques- tions are to be decided. Because here, the principle which the defender sought the learned Judge to lay down to the jury was, that the acceptance, though given in due course, was of no avail whatever, unless it reached the offerer — in short, that tue delay of the delivery of the acceptance to the offerer is identical, in legal operation and effect, with the failure of the pursuers to accept at all ; a proposition to which I think the learned Judge was fully justified in refusing his sanction. After these observations, the special exceptions may be easily dis- posed of. The first relates to the admissibility of the evidence of the true date and posting of the letter of acceptance, and of course depends on the validity of those exceptions which involve the questions of law. The second is to a direction in law which was given, but which cannot be disputed, and was not disputed in argument, viz., that the pursuers are not responsible for any casualties in the post-office establishment. It is clear, and indeed I think it was admitted on both sides, that neither the offerer nor acceptor are so responsible. *The third exception is the most important, as it raises the r^gyg-i question which has been already considered, whether, in applying L J the rule that an offer must be accepted in course of post, the posting of the letter of acceptance, or the actual receipt of the letter by the offerer, determines in law the application of the rule. I think, for the reasons already assigned, that it is the former; and, therefore, I think the direction required ought not to have been given. The fourth exceptions turns upon the fact, that the letter of the pur- suers, though written and posted on the 80th, bears the date of the 31st. I do not see how those facts affected the law of the case, which is truly limited to the point of the effect of a letter posted in course, but not received in course by the offerer. I do not think that the conditions of sale and agreement did warrant the conclusion in law, that these cir- cumstances of themselves set the offerer free. They were only facts which were to be considered with all the other facts of the case. On the board question, indeed, whether, in all the circumstances, the defen- ders were not entitled, in fair and ordinary dealing, to consider themselves free-a question which, I think, was properly left to the jury-the facts attended to were entitled to receive, and I have no doubt did receive their due weight. But these did not, in my opinion, justify the demand 602 ROSS ON OOMMEROIAL LAW. that any law should be laid down for the disposal of those facts any more than of the other facts of the case. The whole of those facts were as I understand, left for the consideration of the jury ; and I have only, to add, though that perhaps is out of my province, that they seem to me to have come to a most just conclusion on the subject. Tor, though many cases may be conceived in which it would be a gross hardship on an offerer to hold that he remained bound while no accep- tance of the offer had reached him, I must say, that it would be as great a hardship where there is an acceptance of an offer, by a letter duly put into the post-ofiSce, to allow the offerer to be free, merely because the letter so duly posted, and attested to have been so by the post-mark, arrived at the place of its destination a few hours later than it ought to r*88m ^^^® ^""^^ ' while the offerer might have seen, from *the post- L J mark, and from the contents of the letter itself, that there had been a mistake. But, as I said before, all these considerations were for the jury. The only point for us to determine is, whether the presiding Judge was called upon to lay down those propositions as law ? A ques- tion which, in my opinion, must be answered in the negative. On the fifth exception it is unnecessary to say anything. It does not seem to involve any question of law, but a supposed rule for estimating the 'damage ; a matter which, from its nature, was most properly left to the jury. Lord Jeitrey. — I concur on the whdle in the opinion which has been delivered. This is a bill of exceptions, confined of course to matters of law; and it is founded partly on the allegation that erroneous law was delivered ; but chiefly on the alleged improper withholding of deliverances in law, said to be required in the circumstances of the case. Neither class of these exceptions has been satisfactorily supported; although, if we had to deal with them as general abstract questions, independent of the cir- cumstances of this case, some of them might be found embarrassing. But before proceeding to consider these exceptions, it is material to take into view the facts to which the alleged erroneous law is said to have been applied, or with regard to which the omission to lay down sound law took place. As to the question, whether a letter of accep- tance sent on the proper day, but from a place where there are two daily posts, is made tempestivi when made by the second post, I deal with it as a matter of fact. It is accordingly largely gone into by the witnesses, and a verdict of the jury implies that the acceptance is suflSciently timeous if it be sent by the second post. This is matter of fact. I think it right, before coming to the larger question raised upon the fourth exception, to speak as to the error in the date of the letter, which, being an act of the party himself, is said to be in its consequences chargeable against him ; and as, by a very singular chance, it happened to coincide with an accidental delay in the conveyance of the mail, giving an appearance of confirmation of the truth of the date, I cannot r*88n ^^^' ^^ ^^^ Judge *was bound to deliver any law at all upon the L -I subject, that I look upon the proposition which he was asked to CONTRACT OP SALE. 603 deliver as right. They contend— (reads 4th)— and upon that they require this deliverance from the Judge. Now, taking into considera- tion the facts before the Court, I think the Judge would have gone wrong if he had complied with that requisition. The party must have seen from the tenor of the letter that it bore an erroneous date. For it mentions "yesterday" as the 29th, while the date it bore was the 31st. In the second place, the post-office stamp was, an official authentication that the date of posting was the 30th. And finally, if any inquiry had been made on doubts raised by these circumstances, it must have been found that in all the correspondence continually going on between Liver- pool and Glasgow, no letter had been transmitted by that post; and, therefore, all this must be presumed to have been before the parties. Now, in these circumstances, was an abstract deliverance to this effijct required ? I clearly think it was not. There is another point assumed in this exception, as to which I think the party equally wrong. He says that if his offer was not duly accepted, he was not only entitled to sell the goods again, but to keep them as his own without selling. Now, it is not pretended that the ipmim corpus which was the subject of the agreement was. sold to any third parties ; and this must be kept in view in the whole consideration of these exceptions. There had been no second sale. Had there been such a sale of the ipsrnn corpus in the interim to a third party, I am not prepared to say what would have been the law in that case, especially if the second sale had been consummated by delivery. But I think that if the real cause of the apparent delay was discovered while things were still entire, there is no serious room for hesitation. Holding, then, that in the circumstances of this case no such direction was required, I think that branch of the bill of exceptions must be disallowed. The next point raises the consideration of a broad general doctrine, which I should be sorry to lay down as a peremptory and absolute rule for the adjudication of such points for the future. I mean, What is the meaning of the obligation to answer by return of post, arising from the usage of trade in *such a transaction ? The letter does not say r«oQo-| — I am bound by this offer, only provided your answer is posted <- J immediately ; or provided I receive it, at the usual time at which letters are received by return of post from Liverpool. None of these expressions are used. But the matter is left to the regulation of the general rule of trade, which no doubt is, that an offer among such persons dealing with such a commodity requires immediate or instant acceptance ; and that the party making the offer is not bound by it, if the other should delay or neglect to transmit his acceptance by the first opportunity. That is a general proposition. Are we to say that it applieis peremptorily to all cases J and that the party is in every case to be free, as if he had employed the last form I have supposed in his letter, because the law holds the other party bound to answer the very day ? Is he entitled to gay You are bound to this, that your answer shall be received by me at a certain hour, otherwise I shall be free ? It would be difficult to hold that the rule extends so far as that ; and that there is no alternative 604 ROSS ON COMMERCIAL LAW. in oases where the delay in answering the offer does not occur through any fault of the person receiving it. I take very much the same view as Lord Fullerton. The party is entitled to say, "You cannot hold yourself to be free from the offer if you have no reasonable ground to suppose that I had actually rejected it." Are parties to be undersjtood as saying, on the one hand,the binding effect of the offer depends on what you do on receiving it, and yet as saying that it shall be terminated by something with which neither party has anything to do ? He might indeed have said, " If I do not receive your answer by two o'clock in the afternoon of the 31st, I shall be free." And he would have been entitled to act upon this. But is that to be inferred, sub silentio, so as to entitle the party to say, " Though I have not sold a second time, I am entitled to deal with them as not sold to you, because there was an interval during which I was entitled to hold that you had not accepted dehito tempore ?" But if things remain open, if nothing is done, and if there be no competing claim of damage, I do not think that this could be inferred. There is another element. The party here did not say, " If I do not receive your letter of acceptance r*8S^1 ^y ^^° o'clock in the afternoon ""of the 31st, or nine o'clock in L J the morning of 1st of February, I shall be free ;" but he only says, " If I do not hear by return of post." I am yet to learn that the return of post is like the return of the :Sun to the meridian at a parti- cular time. I do not think that the use of such a phrase is equivalent to the stipulation of a particular time. I am rather inclined to hold that the return of post means the a^ctual return of post. And the ipeciesfacti here was, the letter accepting the offer having been ^nt in due time to the post-office, it did not come at the time in which, accords ing to the usual time required, it should have come. But the actuul course of that post was not till the morning of the 1st of February. Look at the cases where the post comes by sea. By taking the average time, a date is fixed by which the mails are said to be due ; but the course of post is the time of their actual arrival. Take, too, many cases of transmission by land. Suppose a universal snow storm from one end of the island to the other, this visitation of heaven being a matter of notoriety. It is admitted, I think, that in such a case the non-arrival of an acceptance at the usual time would not be a forfeiture. But I think this is an admission that the course of post is not the usual average time, but the actual arrival ; and the present case, though the cause of delay was not so universally known, falls within the same category ; and that it is not a vicious transition de genere in genus, to say that this is like the case of the snow. Is it to be said that no account is to be taken of the chances of such an accident ? The answer did come by the actual course ; it came by the bag into which it was put in proper time. I think this is the true view of the matter. Here, too, there was nothing done by the party, while he might have thought that his offer was not to be accepted. There was merely a gleam of expectation that he might get free from the bargain, which was extin- guished by the arrival of the acceptance, which turns out to have been sent debito tempore. Was the party entitled to hold, and honafde to CONTRACT OF BALE. 605 believe, that the purpose was rejected by the other party ? If not, then he was bound by the bargain rebus integrU, though he might not have been bound if the acceptance had arrived rebus non integris. It is material, too, to observe, that the point is truly more "of r*afi^T evidence than of law— the whole merits resting on mercantile L i usage, which is matter of proof. I observe, accordingly, that the matter was gone into in evidence. The question was repeatedly put, What would you have done, and what would have been your understand- ing, if by delay of the post-office the acceptance had been detained ? and the witness, I think, answer in substance, We should have held that, if things were entire, then the party was bound on the arrival of the acceptance, which was sent off in due time. Such, then, is the rule of mercantile usage. While things remained entire, the acceptance made in due time is entitled to implement, unless, in the interval caused by accidental delay, there are third parties who have an emerging interest against the acceptor. On all these grounds, I concur in disallowing the exceptions. Lord President. — Having heard these exceptions fully argued, I would have felt bound, if they had now appeared to me to be solid, unquestionably to concur in allowing them. But I approached the consi- deration of this argument, keeping in view the whole circumstances of the case. I am bound to say that, with the exception of the first point as to the exclusion of evidence, till my address to the jury was con. eluded, I heard nothing of these four questions. But when they were presented for my consideration, then, when I was asked to lay down to the jury the law which these parties required me to lay down, I came to the resolution that I would not be justified in doing so. With regard to the first exception, I have only now to say, that, considering the nature of the case, I have not a particle of doubt that it would have been utterly unjustifiable if I had not allowed the evidence to be read. I therefore quite concur with your lorships as to that exception. As to the second exception, I beg your lordships to observe that I read to the jury the rubric of that case in Barnwell & Creswell, quoted at page 30 of the bill ; and in that bill I find no exception to that law. It is not said that I committed any error in point of law in reading this to the jury. When your lordships attend to that circumstance, you will see that it goes very far to affect the issues now before us. When your lordships look at the nature of these exceptions, at the evi- rjKOQc-i *dence of mercantile usage, at the post-office arrangements, at L J the way in which the arrival of the letter on a day corresponding with its false date is accounted for, would I have been justified in laying down the law according to one of these exceptions ? I think it would have been unjust. It is an extremely hazardous experiment to put down what a Judge ought to deliver as law. Had I laid down any such law, I would have neglected all the circumstances of the case. The question was. Was there due acceptance of the offer ? On the evidence, while it appeared that the letter was sent away with a wrong date, it was proved beyond all doubt, that where any such pause in the correspondence between these two places occurs, parties are in the habit of going to the Aprii-, 1855.— 39 606 ROSS ON COMMERCIAL LAW. post-office, while here nothing pf the kind was done. Besides, there is no evidence that one ounce of the iron was disposed of. If some of it had been sold in the bona fide belief that the offer was rejected, the case would have been different. But this is one of the most material features of the case ; and I am extremely happy to think that on this point I am supported by the concurrence of your lordships. With regard to the fifth exception, I may say that I have looked over my note of the Lord Advocate's address, and I do not find that anything was rested by him on this question. I think that if I had complied with the request embodied in the fifth exception, I would have committed a breach of duty. The question was as to fixing the quantum of damages. In the case of Watt v. Mitchell, of the 4th of July 1839, we have one of the most learned and luminous expositions of this question by Lord Medwyn, which goes to the root of the whole matter. According to the principles there laid down, each case is in the fixing of damages to be governed by its own circumstances. If I had given the direction required of me, I would have gone against that case. The Court disallowed all the exceptions The defenders appealed. House of Lords, Feb. 24, 1848. Argued for the Appellants. — The offer of a merchant for the sale of r*S8fn ^'* gooiis is in every case under an implied condition *of accept- L J ance within a certain time ; and according to the custom of mer- chants, that is, the return of the post on the day on which the offer is received, till which time, and no longer the offer enures. This circumstance, of due acceptance of the offer, is, therefore, a condition precedent in the contract of sale, — until it is made there is no contract ; for nothing can be substituted for performance of a condition precedent. The arrival of the day on which the post returned without any acceptance, purged the condition therefore, and put the offerer at liberty to treat the transaction as at an end. Where the condition is subsequent the matter is different , for non-performance of a condition subsequent there may be many excuses receivable, such as the act of God, of the king's enemies, or the impossibility of the thing. But where the condition is precedent nothing can excuse its non-performance so as to admit of a right being vested in the party by whom the perform- ance should be made. This is illustrated by the case of Brodie v. Todd, 17 F. C. 609. There Todd and Co. transmitted bills of lading for the goods sold, with a bill drawn for the price, which they requested might be returned " in course" of post. This not having been done they were held to be justified in re-landing the goods from the vessel, which had not yet left the port of shipment. [Lord Chancellor. — If putting a letter into the post-office is accept- ance, there is no condition broken. In Brodie's case an express condi- tion was broken,] The condition here was, that the seller was to have acceptance within a given time, and no effort of the purchaser which^id not accomplish that could avail to give him a right against the seller. In M'Douall's Inst. i., 4, 24, it is said, « An offer has an implied condition of acceptance, CONTRACT OF SALE. 607 whereby alone the party accedes and converts the offer into a contract, so that it is not binding but ambulatory or revocable till it is accepted, and therefore revocation by the offerer, or death of either party before accept- ance, voids it." — In Horsley v. Hood, 6 Durn. & East, 710, where the condition of a policy of insurance against fire was, that the assured should procure the certificate *of the minister and churchwardens of the ™qo»-, parish that they knew his character, and believed he had sustained L °°'J the loss without fraud, the obtaining the certificate was held to be a con- dition precedent to the right to recover, which was not purified by the wrongful refusal of the minister to grant the certificate. And in David- son V. Mure, 3 Doug. 28, where the condition of a marine insurance against capture was, that if, in case of capture, it should appear to a court- martial that the best defence had been made, the insurers would pay ; the finding of a court-martial to this effect was held to be a condition precedent to the right to recover, not discharged by the circumstance that, during the war in which the capture occurred, there had not been any similar court-martial held. The anxiety of the respondents, therefore, however urgent, to accept the offer within the time necessary, could not dispense with the necessity of that acceptance, although the delay was occasioned by a circumstance beyond their control. The consequences of any other doctrine would lead to anomalous and unjust results, for if posting acceptance is enough without regard to its receipt, what is the offerer to do where the market for the commodity offered is fiuctuating : if he must wait a day, the change in price may be most serious. Where the acceptance of an offer is not received, the inference is as strong that the offer had been declined as that the acceptance has miscarried. At whose risk, while the market is fluctuating, is the offerer to wait in order to ascertain which is the correct inference ? Why should it be at his own when the delay is no way imputable to him ? In the present case, if the market had fallen instead of rising during the delay, and no accept- ance of the offer had ultimately arrived, the appellants could not have come upon the respondents for the loss ; why should the respondents be entitled to come upon them for the loss when the market went the other way ? If they may, then an offerer must suffer unless the market be quite stationary, and without any limit to the amount of his risk, for many days may elapse before the miscarriage of the acceptance or refusal is discovered and rectified. The true and just view is, that there is no contract between the parties to enforce either way. The post-office must be *regarded as their r«ggg-i common agent ; and as it failed in the due performance of its ■- J duty, the consequence ought to be, that no obligation arose on either side. The negotiation failed by an accident growing out of their mutual arange- ment. This is a mode of solution consistent with reason and easy of perception : but to draw the construction, which the judgment below does is contrary to reason, and fraught with injustice. If the delay in acceptance was not occasioned by the fault of the respondents, so neither was it occasioned by any fault of the appellants. What reason is there, then why the appellants should bear the loss rather than the respondents ? but by declaring the negotiation at an end, and no obligation to have 608 BOSS ON GOMMSBOIAL LAW. arisen out of it, as both are faultless, so both are remitted to their original position. The case has been likened to. that of a dishonoured bill, in which proof that the holder had put a notification into the post-offiee has been held sufficient to entitle him to recover, without regard to whether the notifi- cation was received ; but there is the greatest diflference between whether a party has lost a right to recover by laches on his own part, and whether another has gained an advantage by performance of something preoedently required. II. Where damages are claimed for non-fulfilment of a contract of sale, the true criterion of the amount of damage is the difference between the price at which the goods were sold and the market price of the day, on or about which the contract was broken. This was held in Gainsford V. Carroll, 2 Bar. & Cr. 624, and other cases ; and in Shaw v. Holland, 4 Railw. Ca. 161, was recognized as an established rule. In the present case, the Judge did not lay down any such rule to the jury, but left the case with them upon its whole circumstances. The theory of the rule is, that the purchaser, having still his money in his pocket, may on the day on which the contract is broken go into the market and buy the article from another, and therefore all he can justly ask as damage is the diffe- rence between the price which he so pays, and that which he contracted to pay. This rule does substantial justice between the parties, and if the respondents had followed it on the 3d of February, when they received r*8SCn ^^^ appellants' letter disavowing the contract, the *damage would I- -I have been nil, as the price still continued the same, whereas the jury have assessed the damage at ^1500. Argued for the Respondents. — Where an offer is made generally with- out any condition as to the period of acceptance, i(? binds so soon as acceptance is given, unless it have been previously recalled. And if the acceptance be made by letter through the post-office the contract is con- cluded, without regard to when the acceptance may reach the offerer, there is thenceforth concursus et conventio in idem placitum. — ^Bell's Com., vol. i. p. 326. The necessities of trade have adopted the post- office as the means of conveyance of letters, and the law of the country allows of none other, but in no sense is the post-office the agent of the party — over it he has no control one way or other; so soon as his letter is dropped into the mail-box he ceases to have any power over it. But in truth it is the act of acceptance not the receipt of the acceptance which binds the contract; and were it otherwise, as was observed in Adams and Lindsell, 1 Barn. & Aid. 681, where this question as to lia- bility for the default of the post-office was raised and decided, no contract could ever be completed through the post-office. In the present case no stipulation was made as to the acceptance of the offer in course of post, but even if it had been made, the course of post does not limit the party to the lapse of any particular period of time, but to the actual arrival of the post. This must be so where the mail is carried by sea, for no certain time of arrival can be secured, and may be so where it is carried by land, and snow-storm, or other controllable accident has prevented its arrival. If this is CONTRACT OF SALE. 609 the case when an express stipulation as to course of post is made, how much more obviously must the party's right be exposed to these contin- gencies where, as in the present instance, he makes no such stipulation ? II. Whatever may be the rule in England as to the mode of ascertain- ing the amount of damage in such a case, it is well established in Scot- land, that this is peculiarly a question for the jury, to be decided on a view of all the circumstances, having regard to what will fully compen- sate the party for breach of the covenant, to give him that which, if it had been given to him, *would have been within his own power r:|caqm to hold or dispose of. This was fully recognized in Watt v. L -I Mitchell and Co., 1 D. B. & M. 1157, as the established rule in questions of this nature. Accordingly the exception upon this ground was but feebly argued in the court below, where it was considered as having been abandoned. Lord Chancellor. — My Lords, everything which learning and inge- nuity can suggest on the part of the appellants has undoubtedly been urged by their counsel, and if your lordships concur in my view that they have failed in making out their case, your lordships will have the satisfaction of knowing that you have come to that conclusion after having had everything suggested to you that by possibility could be advanced. The case certainly appears to me one which requires great ingenuity on the part of the appellants, because it does not appear that, in the facts of the case, there is anything to support it. The contest arises upon an order sent from Liverpool to Glasgow, or rather a proposition sent from Glasgow to Liverpool, and accepted by the house at Liverpool. It is unnecessary to go earlier into the history of the case than the letter sent from Liverpool by Higgins and Co., bearing date the 31st of January ; a proposition had been made by the Glasgow house of Danlop, Wilson, and Co., to sell them 2000 tons of pig iron. The answer is of the date of the 31st of January, " Gentlemen, we will take the 2000 tons pig you ofier us." Another part of the letter refers to other arrangements, but there is a distinct and positive offer to take the 2000 tons of pigs. To that letter there is annexed a postscript, in which they say, " We have accepted your offer unconditionally, but we hope you will accede to our request as to delivery and mode of payment by two month's bill." That, therefore, is an unconditional offer by the letter dated the 31st of January, which was proved to have been put into the post-office at Liverpool on the 30th, but it was not delivered, owing to the state of severe frost at that time, which delayed the mail from reaching Glasgow at the time at which, in the ordinary course, it would have arrived there. It ought to have *arrived on the following day, on the 31st of pggi"] January, but it did not arrive till the 1st of February. •- ■' It appears that between the time of writing the offer and the 1st of February, the parties making the offer had changed their mind, and, instead of being willing to sell the 2000 tons of pig iron on the terms nroDOsed, they were anxious to be relieved from that stipulation; and on that day. the 1st of February, they say, " we have yours of yesterday, but are sorry that we cannot enter the two thousand (2000) tons of pig iron our offer of the 28th not having been accepted in course." 610 ROSS ON COMMERCIAL LAW. Under these circumstances the parties wishing to buy, and by that letter accepting the offer, instituted proceedings in the Court of Sessions for damages sustained by the non-performance of the contract. I say very little on the first and fourth exceptions, because very little arose on them at the Bar. The next exception to be considered is the second, and that raises a more important question, though not oile attended with much difficulty. The exception is, that " his Lordship did not direct the jury, in point of law, that if the pursuers posted their acceptance of the offer in due time, accord- ing to the usage of trade, they are not responsible for any casualties in the post-office establishment." Now, there may be some little ambiguity in the construction of that proposition. It proceeds on the assumption that by the usage of trade the 30th was the right day on which the answer should have been put into the post ; that by the usage of trade an answer ought to have been returned by the post, and that the 30th was the right day on which that acceptance ought to have been notified. Then comes the question, whe- ther, under those circumstances, that being the usage of trade, the fact of the letter being delayed, not by the act of the party sending it, but by an accident connected with the post, whether the party so putting the letter in on the right day is to lose the benefit which would have belonged to him if the letter had arrived in due course ? 1 cannot conceive how any doubt can exist on the point. If a party does all that he can do, that is all that is called for. If there be a usage of trade to accept such an offer, and to return an answer to such an .offer, r#8Q2T ^^^ *" forward it by means of the *post, and if the party accept- L -1 ing the offer puts his letter into the post on the correct day, has he not done everything he was bound to do ? How can he be responsi- ble for that over which he has no control ? Is it not the same as if the date of the party's accepting the offer had been the subject of a special con- tract, as if the contract had been, " I make you this offer^ but you must return me an answer on the 30th ?" If he puts his letter into the post- office on the 30th, that is undoubtedly what the usage of trade would require. He, therefore, did on the BOth, in proper time, return an answer by the right conveyance, the post-office. If you were not to have reference to any usage constituting the con- tract between the parties but to a specific contract, it is quite clear to me that the rule of law would necessarily be that which has obtained by the usage of trade. It has been so decided in cases in England, and none have been cited from Scotland which controvert that proposition, but the cases in England beyond all doubt support it. It is not disputfed that it is a very frequent occurrence that a party having a bill of exchange tenders it for payment to the acceptor, and is refused. He cannot get payinent. He is bound to give notice to the party who is the drawer, although he may be distant many miles from him, but if he puts a letter into the post at the right time, it has been held quite sufficient. ' He has done all that he is expected to do. As far as he is concerned he has put the letter into the post, and whether that letter is delivered or not is a OONTSAOI OF SALE. 611 matter quite immaterial, because the act of the post-office is one for which he is not responsible. My Lords, the case of Stocken v. Collin, in 7 Mee. & "Wei. 515, is precisely a case of that nature, where the letter did not arrive in time. In that case Mr. Baron Parke says, " It was a question for the jury whe- ther the letter was put into the post-office in time for delivery on the 28th, the post-office mark certainly raised a presumption to the contrary, but it was not conclusive. The jury have believed the testimony of the wit- ness who posted the letter, and the verdict was, therefore, right. If a party puts a notice of dishonour into the post, so that in due course of delivery it would arrive in time, he has done all that can be required of him, and it is no fault of his *that delay occurs in the delivery." r«aqq-i Mr. Baron Alderson says, " the party who sends the notice is L J not answerable for the blunder of the post-office ; I remember to have held so in a case on the Norwich circuit, where a notice addressed to Norwich had been sent to Warwick. If the doctrine that the post-office is only the agent for the delivery of the notice were correct, no one could safely avail himself of that mode of transmission. The real question is, Whether the party has been guilty of laches ?" There is also the other case which has been referred to, which raises the same doctrine, the case of Adams and Lindsell, in 1 Bar. and Aid. 681. That is a case where the letter went, by the' error of the party sending it, to the wrong place, but the party receiving it answered it in proper time. The party, however, who originally sent the offer, not receiving the answer in proper time, thought he was discharged, and entered into a contract and sold the goods to somebody else. The ques- tion was, whether the party making the offer had a right to withdraw after notice of acceptance. He sold the goods after the party had written the letter of acceptance, but before it arrived he said, " I with- draw my offer," therefore he said, " before I received your acceptance of my offer I had withdrawn it." And that raised the question when the acceptance took place, and what constituted the acceptance. It was argued that " till the plaintiff's answer was actually received there could be no binding contract between the parties, and that before then the defendants had retracted their offer by selling the wool to other persons." But the Court said, " If that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not to be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitvm. The defendants must be considered in law as making, during every instant of the time their letter was travel- ling, the same identical offer to the plaintiffs, and then the contract is completed by the acceptance of it by the latter." Those two cases leave no doubt at all on the subject; *common „gg^j sense tells us that transactions cannot go on without such a rule. Those two cases seem to be the leading ones on the subject, and there has been no case cited to show the contrary. 612 ROSS ON COMMERCIAL LAW. Mr. Bell's commentary lays down the same rule as existing in Soot- land, and the contrary to that does not appear to exist. Now, whether I take that proposition as conclusive tipon the objection, or whether I consider it as a question entirely open, whether the putting the letter in the post was or not in time to constitute a valid acceiptance, it appears to me, that the learned Judge was right in the conclusion to which he came. The next exception is the third, which says, " In so far as his lord- ship did not direct the jury in point of law, that if a merchant make an ofifer to a party at a distance by post letter, requiring to be answered within a certain time, and no answer arrives withiii such time as it should arrive, if the party had written and posted his letter within the time allowed, the offerer is free, though the answer may have actually been written and posted in due time, if he is not proved to be aware of accidental circumstances preventing the due arrival of the answer." That raises, first of all, a proposition that does not arise in this case at all. It assumes a contract that requires an answer within a certain time, and it assumes (which is already disposed of by what I have said in answer to the second exception) that the putting a letter into the post is not a compliance with the requisition of the offer. In my opinion the putting a letter into the post is a compliance with the requisition of the offer ; but that question does not arise at all in this case, because it is assuming a special contract, and there is no special contract here. It only remains to call your lordships' attention to the fifth. The fifth exception is, "in so far as his lordship did not direct the jufy in point of law, that in case of failure to deliver goods sold at a stipulated price, and immediately deliverable, the true measure of damage is the difference between the stipulated price and the market price. On or about the day the contract is broken, or at or about the time when the pur- chaser might have supplied himself." r*8Q'iT '^^^^ raises the proposition generally, and not as the learned >- J counsel have very properly put it at the Bar on the absence of any special damage, or because there is no rule for damage. If that be the law, if that be ihe rule of damage in all eases of special damage, or in cases of this sort, almost every case must differ as to the amount of damage, and the circumstances which gave rise to that damage. The proposition here is, that if a party proposes to deliver goods at a certain time, the damage against him by a party who suffers by his default, is to be measured by the market price at or about the time of the failure of the contract. They say you are to take it within the time of the failure or at the time when the failure takes place, and the contract is broken. It is laid down as the rule of law that that is the measure of damage that the party is to receive. Now, my Lords, in the action, and the proceedings here for damage, the party comes to receive compensation for the damage he has sustained. If there be a rule established that in a certain case a certain measure of damage ought to be given, the jury ought not to be permitted to go out of that general rule. ■ But if it is a question for the jury, I cannot see how you can be dissatisfied whether they give sSlOOO or £10,000 j and OONTRAOT OP SALE. 613 the learned counsel for the appellants felt the force of that. What do you come here for ? To obtain compensation for the party not perform- ing his contract. What was there for the pursuer to show ? That he had by the contract between the parties entitled himself to 2000 tons of pig iron, and the defendants had subjected themselves to make compen- sation to him for the damages sustained by their breaking that contract. I am now putting it generally without the cases — that seems to me the good sense of the thing. In my opinion the jury have performed the duty that belonged to them in .ascertaining the amount of damage. Suppose, for instance, a party who has agreed to purchase 2000 tons of pig iron on a particular day, has himself entered into a contract with somebody else, conditioned for 2000 tons of pig iron to be delivered on that day, and that he not being able to obtain the 2000 tons of pig iron on that particular day, loses the benefit arising from that contract. If pig iron had only risen a shilling a ton in the market, but by this con- tract he had lost £1000 upon a contract with a *railway com- r,oQ„, pany, in my opinion he should not only have the damage which L ^^°J would have arisen if he had gone into the market and bought the pig iron, but also that profit which he might have received if the party had performed his contract. Otherwise it is diflicult to say how it is recon- cilable with justice, or how it is reconcilable with the duty which the jury had to perform in ascertaining what the party has suffered by the breach of his contract. It may be, that there may be some general rule, but how that general rule can be applicable to such cases it is diflScult to understand. We have not before us the course which has been adopted by some Courts in this country, we have nothing to do but to look to the law of Scotland ; and by the law of Scotland in the case which has been referred to of Watt V. Mitchell, no doubt is left as to what the rule of law in Scotland is. Lord Medwyn very laboriously considered that case, and goes through all the early authorities on the subject in Scotland, and after having done so, draws this result from those early authorities in page 1163. He says, " these are all the Scots cases referred to, and I certainly deduce from them this, that our Court rejects the plea of the defenders, that the price at the time of the delivery as the time when ' the breach of contract takes place, should be the measure of the damages due where the defenders have failed to implement." He, therefore, in terms on the authority of the many cases he refers to, ultimately lays down, that that is not the law of Scotland ; that the law of Scotland is to look into all the circumstances, that the law of Scotland is to do what was done here, to call upon the jury to exercise their judgment and sanc- tion what is reimbursement to the party who has sustained loss by the original contract, and that without reference to what the price of the article at the particular time may produce. My Lords, in what I have said I have wished to confine myself to the law of Scotland. I have not had an opportunity of saying anything on the subject of the law of England. I am contemplating now what I find to be the established law of Scotland, and the question is. Whe- ther, in the face of that law, and in defiance of all the authorities 614 ROSS ON OOMMEROIAL LAW. referred to on the law of Scotland ; and in the absence of any authori- r*aQ7i '•^^^ '^^ *^^ ^^^ "^ *Scotland raising a contrary proposition, your L J lordships are to adopt a principle which would go to destroy that rule, and to lay down another, which, according to my opinion, is less calculated to do justice to all parties than the one upon which the Court has proceeded ? It is very desirable, no doubt, that the law between the two countries should be assimilated ; but that is no ground why your lordships should introduce into the law of Scotland a rule, which if your lo):dships were to introduce it would do great violence to the law of that part of the kingdom. My Lords, I think that the learned Judge most properly at the trial, decided that he was not bound to put the question in the way the defenders suggested, and that there was suffi- cient to lead him to the conclusion at which he arrived, that the jury were at liberty to look into all the circumstances for the purpose of measuring the damage. My Lords, this exhausts the whole of the objections made, and my advice to your lordships is to affirm the judgment of the court. "Ordered and adjudged, that the petition and appeal be dismissed this house, and that the interlocutor therein complained of be affirmed. And it is further ordered, that the appellants do pay or cause to be paid to the respondents the costs incurred in respect of the said appeal, the amount thereof to be certified by the clerk assistant," &c. The case of Keir's Trustees v. James, related to a sale of heritage, and the ques- tion raised was, whether the contract of sale was completed by the acceptance of an offer duly posted, where the seller had retracted his offer by a letter, not re- ceived by the acceptor prior to the posting of his acceptance. Applying the prin- ciple of the case of Higgins v. Dunlop, it is thought that so soon as the acceptance was posted the contract was completed, and that unless the retraction of the offer reached the acceptor before he posted his acceptance, the completion of the con- tract could not be preVented. The case, however, is still in dependence, and the judgment will be given in the Appendii to Volume III. INDEX OF MATTERS. LAW OP ENGLAND. The pages referred to are those between brackets [ ]. BANKRtrPTOY. 1. A purchaser, prior to an act of bank- ruptcy, may rescind the contract of sale and reject the goods, but if the goods are once delivered to the pur- chaser, he cannot, on the eve of in- solvency, rescind the contract and return the goods, neither can he in- terfere after an act of bankruptcy to reject the goods while they are in transitu, so as to give a preference to the seller over his other creditors, 159. 2. If once the goods be fairly and com- pletely delivered, whether they be or be not mixed with the rest of the vendee's stock, the bankrupt and the vendor cannot rescind the con- tract, if the rights of other per- sons intervene, with the view of giving a preference to the vendor, lYl. 3. Where in implement of a contract of sale by which the purchaser was to send a vessel to receive the goods, and to pay the price on receiving the invoice and bills of lading, and the purchaser had sent a vessel, but be- come bankrupt before the goods had been delivered on board, it was held, (Lord Abinger dissenting,) that the vendor was not discharged by the insolvency of the vendee, from the obligation to send forward the goods, but was bound to implement his part of the contract, and that it was not ne- cessary for the assignees of the bank- rupt to give notice within a reason- able time to the vendor of their adoption of the contract, 255. BILL OP LADING. 1. An assignment of a bill of lading to a honafide transferee for a valuable consideration, defeats the seller's right to stop in transitu, 92. 2. The delivery of a biU of lading is a delivery of the goods themselves, and the assignee of a biU of lading trusts to the indorsement. The in- strument is in its nature transferable, and in this respect resembles a bill of exchange, 102. 3. In all mercantile transactions one great point to be kept uniformly in view, is to make the circulation and negotiation of property as quick, as easy, and as certain as possible, and if the assignment of a bill of lading did not pass the property in the goods described in the bill, no man would be safe either in buying, or in lend- ing money, upon goods at sea, 131. 4. The possession of the bill of lading by the consignee makes him the visi- ble owner of the goods, and if an assignment of it did not pass the property in the goods, he would be able to commit a fraud on a third party, 141. 5. A consignor's right of stoppage in transitu will not be defeated b;^ a transference of the bill of lading to a third party, unless that party transacted in bona fide, so that if he knew that the consignee was insol- vent, he will be held to stand in the same situation as the consignee, and the consignor will not be deprived of his right of stoppage in transitu, 144. 616 ROSS ON OOMMEKOIAIi LAW. 6. The effect of the indorsement of a bill of lading where the indorsee is holder for value, and without notice of any circumstance to prevent him from bona fide accepting of it, is to vest in him an uncountermandable authority to receive the goods, 144. 7. If the indorsee of a bill of lading knows that the consignor had not received payment, but had taken the consignee's acceptance payable at a future day not then arrived, the trans- ference wiU be effectual," 144. 8. Where a bill of lading has been transferred without a valuable con- sideration, the consignor's right of stoppage in transitu will not be de- feated, 147. 9. The mere signature of the person entitled to the delivery of the goods, prima fade, does not pass the pro- perty in them to the indorsee of a bill of lading. There must be value upon the indorsement of a bill of lading, or no property in the goods is thereby transferred, 147. 10. If any condition be adjected in the bill of lading, or to the indorsation of it, the indorsee takes it subject to that condition, 147. 11. Where goods are shipped without orders, and the bill of lading is made out in favour of a party, the con- signor may alter the bill of lading, and direct the goods to be delivered to any party, 148. 12. Where goods have been shipped in consequence of orders received, the seller is functm officio, and cannot alter the bill of lading, except in the event of the insolvency of the con- signee, 148. 13. The consignor has not an unlimited power to vary the consignment at his pleasure in all cases whatever, but it IS a privilege allowed him for the par- ticular purpose of protecting himself against the insolvency of the con- signee, 149. 14. Where goods are shipped without order, the consignor retains an abso- lute power over them, for there is no purchaser, 150. 15. Where a bill of lading is assigned, notabsolutely,butin security of a debt, the consignor's right of stoppage in tramsitu is defeated only to the ex- tent of the debt, and if other goods belonging to the purchaser have been pledged to the consignee of the bill of lading at the same time with the pledging of the bill, the consignor is entitled to have the proceeds of the other goods applied to the discharge of the debt before his own goods are so applied, 150. 16. Although the legal right to the goods specified in a bifl of lading is trans- ferred by an assignment of the bill, yet in equity the transfer takes effect only to the extent of the considera- tion paid by the transferee, leaving the seller an equitable interest in the surplus value, 151. 17. The privilege of negotiability be- longs only to a bill of lading, and is not extended to a shipping note, or a delivery order, or an invoice, 151. 18. A bill of lading is exactly like a bill of exchange, and the property it refers to passes by indorsement on it, but not by delivery without indorse- ment ; but a shipping note or deli- very order does not amount to a bill of lading, 151. 19. The negotiable quality of a bill of lading is confined to the case where the person who transfers the right is in possession of the biUof lading, so as to be in a situation to transfer the instrument itself, which is the sym- bol of the property transferred, 162. 1. Fraud without damage, or damage without fraud, gives no cause of ac- tion, but where the two concur, an action lies, 393. 2. An action cannot be supported for telling a bare naked lie, but a deceit is more than a lie, on account of the view with which it is practised, its being coupled with some dealing and the injury which it occasions to an- other person, 393. 3. If A. by fraud and deceit, cheat B. of a sum of money, it makes no diffe- rence to B. whether A. or any other person pockets the money, and if he can fix fraud upon A., he has a right to seek satisfaction against him, 395. 4. All that is required of a person, who is not bound to give an answer to a question, but has his option to give an answer or not, is, that he shall give no answer, or that if he do, he shall answer according to the truth, so far as he knows, 398. 5. A fraudulent affirmation made by a party which results in injury to an- other, is a ground of action, whether INDJBX OF MATTERS. 617 the party making the afiSrmation has an interest or not, for the gist of the action is the injnry done to the party to whom the amrmation is made, and not whether the party making the affirmation meant to be a gainer by it, 399; 6. Any lie intended to deceive and de- fraud another party, and which does deceive and defraud such party, is the subject of an action, but not a mere lie thrown out at random with- out any intention of hurting any one ; for the quo ani/mo is a great part of the gist of the action, 400. 7. An action upon the case for a deceit lies when a man does any deceit to the damage of another, 401. LIEN. 1. Although a contract of sale passes the property in the subject sold to the purchaser, the seller is entitled to retain possession of the subject until payment of the price, unless credit has been given to the pur- chaser, but this right of retention is I lost so soon as the seller relinquishes possession of the subject, 48. 2. Where goods are sold and nothing , is said as to the time of delivery or the time of payment, and everything the seller has to do is complete, the property vests in the purchaser so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to de- liver them whenever they are de- manded upon payment of the prjce, but the purchaser has no right to have possession of the goods till he pays the price, 53. 3. The vendor's right in respect of the price grows out of his original owner- ship and dominion, and payment or a tender of the price is a condition precedent on the purchaser's part ; and until he makes such payment or tender he has no right to the posses- sion, 53. 4. If goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the ven- dee is immediately entitled to the possession and the right of posses- sion, and the right of property at once vests in him, but his right of posses- sion is not absolute, but is liable to be defeated if he becomes insolvent before he obtains possession, 54. 5. Where the price of goods sold is paid by bUls, possession of the goods may be demanded while the bills are running, but if the bills are dishon- oured before delivery is made, the right of property is revested in the seller, 72. 6^ So long as igoods sold and unpaid for remain in the possession of the vendor he may refuse to deliver them, and if they remain in the possession of his agent, that is, a warehouseman or carrier, he may stop them, 74. 7. A second vendee of a chattel stands in no better situation than his vendor, and is therefore not entitled to deli- very if the price has not been paid, 74. 8. Every vendor retaining possession has a lien until he is paid. Where bills are granted the lien is suspended so long as the bills are running, but it revives so soon as they are dishon- oured, 75. 9. A second vendee who neglects to take either actual or constructive possession, is in the same situation as the first vendee under whom he claims. He gets the title defeasible on nonpayment of the price by the first vendee, 76. 10. Partial delivery of goods sold will not defeat the seller's lien over the portion undelivered, 79. 11. If goods are sold on credit, but the purchaser suffers them to remain in the possessson of the seller until the term of credit has expired, or the purchaser has become insolvent, the seller's right of lien revives, and the charge of warehouse rent will not deprive him of his right, so long as the rights of third parties do not in- tervene, 80. 12. Where a biU which has been grant- ed in payment of the price of a sub- ject sold is dishonoured, there is no longer payment or anything which can be considered equivalent to pay- ment, and delivery of the goods can- jiot be insisted on without actual payment, 87. 13. Where the price of goods sold has not been paid, the seller has the right to retain possession, and it makes no difference whether he has charged the buyer with a rent or not, 92. 14. Liens at law exist only in cases where the party entitled to them has the possession of the goods, and if he once parts with the possession after 618 ROSS ON COMMERCIAL LAW. the lien attaches, the lien is gone, 124. 15. By the general usage in trade a factor may retain for the balance of his account all goods in his hands, ■without regard to the time when, or on what account he received them, 124. 16. Where the vendor has the goods in 1 his own warehouse, a delivery order to the vendee will not deprive the vendor of his right of lien before the goods are removed from the ware- house, 204. 17. Where a vendor assents to a sale by the original vendee to a sub-ven- dee, his right of lieu is thereby lost, 205. 18. Partial delivery by a middleman of goods sold, where there appears no intention to separate the part de- livered from the rest, is held equiva- lent to delivery of the whole, and thereby puts an end to the transitus, 212. 19. If a vendee takes possession of part of the subject sold, not intending to take possession of the whole, but to separate that part and take posses- ion of that part only, the transitus is ended only with respect to that part and no more, and the right of stop- page in transitu of the remainder still continues, 223. 20. Partial payment of the price does not defeat the vendor's right of stop- page in transitu, 224. PKOPERTT. 1. The sale of a specific subject where nothing remains to be done by the seller before it is to be delivered passes the property in the subject to the purchaser without delivery, and if injured or destroyed after the sale, the loss falls upon the purchaser, and the seller is entitled to payment of the price, 1. 2. The right of property and the right of possession are distinct from each other. The former may be in one person, the latter in another. A ven- dor may have a qualified right to retain the goods sold, unless payment is duly made, and yet the property of the goods may be in the vendee, 4. 3. The rule of law is, that where there is an immediate sale, ^nd nothing remains to be done by the vendor as between him and the vendee, the properly in the thing sold vests in the vendee, and all the consequences resulting from the vesting of the pro- perty follow, 4. 4. If nothing remains to be done on the part of the vendor, as between him and the vendee, before delivery, the property in the goods immedi- ately passes to the vendee, and that in the price to the vendor, but if any act remains to be done on the part of the vendor, then the property does not pass till that act be done, 5. 5. Although something remains to be done by the original vendor, a sub- sale by the original vendee will be complete when intimated to the origi- nal vendor, for as between the origi- nal vendee and the sub-vendee no- thing remained to be done to perfect the sale, 11, 43. 6. Where somethingremains to be done on the part of the seller before the subject is to be delivered, the pro- perty in the subject does not pass to the purchaser until what remains to be done is competed, 20. 7. The action of trover is accommodat- ed to, and depends upon, a perfect right of property, and is therefore not maintainable if anything remains to be done on the part of the seller, as between him and the buyer, be- fore the commodity purchased is to be delivered, because in that case a complete present right of property has not attached to the buyer, 29. 8. Where a bargain is made for the purchase of goods and nothing is said about payment or delivery, the pro- perty passes immediately, so as to cast upon the purchaser all future risk if nothing farther remains to be done to the goods, although he can- not take them away without payment of the price, but if anything remains to be done, the property is not chang- ed until that is done, 41. 9. By a contract of sale for specific goods the property is changed, although the seller has a lien for the price unless the contract is for a sale upon credit, 42. 10.. Where there is a sale of goods generally, on property in them passes until delivery, because until then the very goods sold are not ascertained ; but when, by the contract itself, the vender appro- INDEX OF MATTERS. 619 priates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after a delivery of goods in pursuance of a general con- tract. The appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the ven- dee to take the specific chattel and to pay the price is equivalent to his accepting possession, 45. 11. To constitute a sale which shall immediately pass the property in the subject sold, it is necessary that the subject should be ascertained in the first instance, and that there should be a price either ascertained or as- certainable, 46. 12. When an article is ordered to be made, no property in the article passes to the orderer until it is com- pleted and has been approved of by him, 295. 13. Where goods are ordered to-be made, while they are in progress the materials belong to the maker, and although he may intend them for the person ordering, still he may after- wards deliver them to another, and thereby vest the property in that other, 298. 14. Where an article is ordered to be made, the payment of the price in advance will not vest the property in the article in the orderer, 301. 15. Where an article is ordered to be made, and, by the terms of the con- tract, instalments of the price are to be paid according to the progress of the work, the payment of these instalments appropriates specifically the article to the orderer, and vests in him the property of it, although not completed, subject to the right -^ of the maker to retain the unfinished article in order to complete it and earn the remainder of the price, 303. STATUTE OF FRAUDS. 1. Where the price of the subject sold is £10 or upwards, the completion of the contract is regulated by the Statute of frauds, 463. 2. The Statute of frauds requires either that the purchaser should accept and actually receive part of the goods sold, or that he should give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the bargain be made and signea by the parties or their agents thereto lawfully authorized, 463. 3. Where several articles are pur- chased at one time, it is held to be a single contract, and within the Statute of frauds, if the total cost of the articles purchased amounts to £10, although the price of each article was less than that amount, 463. 4. A delivery of goods sold by the seller is not sufficient to take the case out of the Statute of frauds, but there must be an acceptance by the buyer as well as a delivery by the seller, 469. 5. The Statute of frauds was made for wise and beneficial purposes, and ought to receive such a construetion as will best accord with the plain and obvious meaning of the legis- lature, 475. 6. The preventing peq'ury was not the sole object of the Statute of frauds. Another object was to lay down a clear and positive rule to determine when the contract of sale should be complete, 477. 7. According to the Statute of frauds something direct and specific must be done to show that the agreement is complete, that there may be no room for doubt and hesitation. The intention of the Statute was to pre- vent confusion and uncertainty in the transactions of mankind, 479. STOPPAGE in transitu. 1. On the insolvency of a purchaser, goods delivered to a middleman for the purpose of transmission, may be stopped by the seller for the un- paid price, while they are still in the hands of the middleman, and in the course of transit to the pur- chaser, or to the destination to which he has appointed them, 92. 2. Where goods are sold on the cre- dit of the buyer, and the seller deli- vers the goods, the property is altered, and he cannot recover them back again though the vendee im- mediately become bankrupt. But where the delivery is to be at a dis- 620 ROSS ON OOMMEROIAL LAW. tant place, as between the vendor and the vendee, the •contract is ambulatory till delivery, and in the case of the insolvency of the vendee in the meantime, the vendor may stop the goods in transitu, 100. 3. The right of stoppage, in transitu, is not grounded on property, but necessarily supposes the property to be in some other person^ for the owner of goods has a right to the possession of them whether they be in transitu or not, 124, 4. The right of stoppage in transitu is founded wholly on equitable princi- ples, which have been adopted in courts of law, and so far as they have been adopted, will bind at law as well as in equity, 124. 5. The bankruptcy of a purchaser does not operate as a countermand by the seller, and if the assignees of the bankrupt obtain possession of the goods, the transUw is at an epd, 153. 6. The right of the vendor to seize goods in transitu is founded on equi- table principles, and is one with which he is indulged, on principles of justice originally established in courts of equity and since adopted in courts of law, but in order to avail himself of the right the ven- dor must stop the goods before they get into the actual possession of the vendee or his assignees, for bank- ruptcy itself does not put an pnd to the contract, 158. 7. If, in the course of the conveyance of goods from the vendor to the vendee, the vendee be allowed to exercise any act of ownership over them, he thereby reduces the goods into possession, and puts an end to the vendor's right to stop them, 175. 8. The right of stoppage continues until the goods arrive at thejourney's end, but if the vendee meet them upon the road and take them into his own possession, the goods are held to have arrived at their jour- ney's end, with reference to the right of stoppage, IT 6. 9. The first delivery to the carrier vests the property in the vendee, but the property so vested is a defeasible property, and" may be defeated by the insolvency of the vendee, so that if the vendor having notice of such insolvency, makes a demand upon the person in whose custody the goods are, he defeats the contract, 178. 10. A delivery order presented to, and accepted by, a warehouseman, where, as between the seller and the pur- chaser, nothing remains to be done before delivering the goods held by him in order to identify the subject or ascertain the price, will defeat the seller's right to stop in transitu, but otherwise, if something requires to be done before delivery can be given, 187. 11. Where acts require to be done as between the vendor and the vendee, in order to regulate the identity and the individuality of the thing sold, it is not in a state fit for immediate delivery, and an order to deliver entered in a wharfinger's books does not operate as a complete delivery, 191. 12. Where the subject sold requires something to be done before deli- very, and the vendee sub-sells, and the sub-vendee intimates the sub- sale to the original vendor, the original vendee's right of stoppage in transitu is defeated, the sale being complete as between him and the sub-vendee, 193. 13. Where the weighi^ig or measure- ment of the article sold is not for the purpose of ascertaining the price or identifying the article, but merely for the satis&ction of the purchaser, a delivery order presented to the warehouseman will pass the property to the purchaser, and "■ defeat the seller's right of stoppage in transitu, 194. 14. Where goods have been re-sold by a party having a delivery order, and the Bub-vcAdee has presented the order to the warehouseman, and it has been accepted by him, the original seller's right to stop in tran- siti^ is barred, even although the goods may have required to be weighed or measured over before delivery, and that had not been done before the bankruptcy of the original purchaser, 196. 15. The right of stoppage in transitu is an equitable right to be exer- cised by the_ vendor only, when it can be done without disturbing the rights of third parties, 200. 16. Where the purchaser of goods obtains a delivery note from the ■seller, and he delivers the note to INDEX or MATTERS. 621 the wharfinger -who has possession of the goods, the wharfinger is bound to hold the goods on account of the purchaser, 202. IV. The delivery to the wharfinger of a delivery note is sufficient without any actual transfer of the goods to the name of the vendee being made in the wharfinger's books, 202. 18. Where the vendor does not furnish the vendee with any written evidence of his title to the articles sold, a re-sale by the purchaser will not destroy the original vendor's right of stoppage in trwnsitu, 202. 19. A delivery order presented to a wharfinger, which he is not bound to obey, and which is not accepted by him, will not prevent the vendor from exercising his right of stoppage in transitu, 203. 20. Where a vendor assents to a sale by the original purchaser to a sub- vendee, his right of stoppage in transitu is thereby lost, 205, 21. The right of the vendor to stop goods in tr