MILLS & al. v. sion and the wharfinger admitted himself to be in the nature of 1801. a stakeholder bound to deliver according to the right. Without 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. BALL. HEATH, J. I am of the same opinion. The general rule 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 certainly 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 consideration 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 Plaintiff's right. *In Berwick v. Atkyn, 1 Str. 165. the refusal by the bankrupt to (463) receive the property seems to have been considered meritorious. So I think that the conduct of the bankrupts in this case was commendable. ROOK, J. In this case there is no dispute respecting the rule of law. The only difficulty arises upon the application of the facts to the law. It is agreed, that a contract once completely executed cannot be rescinded. If therefore the goods had got into the hands of the consignee, there is no doubt that he would have been precluded 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 consequence 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 information was obtained can make no difference in the case. The honesty of the consignees ought not to prejudice the Plaintiff's right. If indeed, the consignees, after getting the goods into their hands, had given them 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: but I do not say, that such an action might not be maintained. CHAMBR, J. The 1st 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 delivered to a wharfinger to be forwarded to the bank MILLS & al. V. BALL. 1801. rupt. 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 cases, 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 e quivalent 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. * (464) When, therefore, the *vendor, having notice of such insolvency, makes 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 assignees of the bankrupt. In the present case there can be no doubt of a conversion having taken place. Cases of difficulty may indeed arise; as if a carrier upon reasonable doubt should refuse to deliver up goods without further authority, or until the circumstances of the case are ascertained (a): for a demand and a refusal do not always constitute a conversion (): 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 or 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 991. 17s. (1) (a) If a person finds my goods, and I demand them, and he answers that he knows not whether I am the true owner or not, and therefore refuses to de liver them, this is not to be deemed a conversion to his own use, as he keeps them for the owner. Dict. Per Coke, Ch. J. 2 Bulstr. 312. The same doctrine is laid down by Lord KENYON in Solomon v. Dawes, l'Esp. N. P. Cas. 83. (b) Dict. Per Lord MANSFIELD, 3 Burr. 1243. And indeed, if demand and refusal only be found upon a special verdict, it shall not be adjudged a conversion, 10 Co. 57 Hob. 187.2 Mod. 245. See also Ross v. Johnson, 5 Bir. 2827, and Syedes v. Hay, 4 Term Rep. 260. (1) As to the nature of the right of stoppage in transitu, who is entitled to exercise it, where the transitus continues, aud where it ends, see Selwyn's Nisi Prius ch 34 p 1171 to 1190 See also note (2) to Wright v. Lawes, 4 'Esp. 85 Day's edit. where most of the cases are cited. *Govett v. Johnson & al. 1801. June 17th. LENS and Bayley, Serjts. were to have shewn cause against wel staying proceedings upon the bail-bond in this case on the usual two only terms, but said, they should content themselves with insisting of three against the Defendants being allowed to plead in abatement, that joint-contwo only out of three joint-contractors were sued; and to shew, are sued, that they ought to be restrained from so pleading, they cited 2 the Court Salk. 519. Anon. as directly in point. tractors will not stay pro Best and Onslow, Serjts. contended, that the plea that other ceedings joint-contractors were not sued was not a mere dilatory plea; and upon the therefore the Court would not impose such a restriction as the Plaintiff required. But the Court said, they thought it a very reasonable restriction, and that they would not stay the proceedings on the bail-bond to give the Defendants an opportunity of pleading in abatement. Rule absolute, on the Defendants undertaking not to plead in abatement. bail bond, unless the Defend ants will under take not to plead in abate ment. Lees v. Warlters. June 18th. fendant in replevin having averred in his cogni zance, that the Plaintiff held the land un REPLEVIN. The Defendant made cognizance as bailiff to The DeF. L. for rent arrear, and in his several cognizances stated, that the Plaintiff held the land "under a certain demise to him the said John Lees theretofore made." The Plaintiff pleaded in bar, that he did not hold the land under a demise to him made in manner and form, &c. After this the Defendant obtained a judge's order "that he should be at liberty to amend the cognizances, by striking out in each cognizance the words to him the said John Lees,' and that the Plaintiff should also be at liberty to plead de novo; and in case the Plaintiff should plead new matter, the Defendant should pay the costs of the amendment to be taxed by the prothonotary; but if the Plaintiff should not plead new matter, the Defendant should pay such costs only as should be occasioned by (the making the cause a remanet, and passing the record." The cogni- Plaintiff) zances having been amended according to the order, the Plaintiff de- thereto*murred, specially assigning for cause that it did not appear to * (466) whom the demise was made.(a) der "a certain demise to him the said J. L. fore made," The prothonotary considering the special demurrer as new Plaintiff matter, allowed all the costs of the amendment; upon which a rule pleaded was obtained by Bayley, Serjt. calling on the Plaintiff to shew cause why the prothonotary should not be directed to review his taxation. (a) Vid. the Stat. 11 Geo. 2. c. 19. ». 2. which empowers Defendants in replevin to avow or make cognizance generally, without setting out the title of the lessor. in bar, that be did not hold under a demise in manner and form. Upon this Defendant obtained an order to amend by striking out the words "to him the said L." with liberty to the Plaintiff to plead de novo, and that in case the Plaintiff should plead new matter, the Defendant should pay all the costs of the amendment. The Defendant having amended accordingly, the Plaintiff demurred specially, and assigned for cause, that it did not appear to whom the demise was made. Held, that the demurrer was not new matter. 1801. LEES Against which rule Best, Serjt. now shewed cause, and contended, that the demurrer arose entirely out of the alteration in the cognizances, and stated that it had always been the practice in the WARL prothonotary's office to consider such a demurrer as new matter; in which he was confirmed by the prothonotary himself. V. TERS. But the Court were of opinion, that this special demurrer ought not to be considered as new matter within the meaning of the order, and directed the prothonotary to review his taxation. Rule absolute. June 18th. will not Howell v. Coleman. The Court BAYLEY, Serjt. moved for a rule to shew cause why all proceedings in this case should not be set aside for irregularity, and the bail-bond be delivered up to be cancelled. set aside proceed ings and order the bail bond to be delivered up, be cause a Defendant has been ar It appeared, that the Defendant had been arrested upon a special capias, in which he was named W. G. Coleman, without stating either of the Christian names at length, and that the affidavit to hold to bail described him in the same manner. The Court observed, that the Defendant had not been arrested by a wrong name, and thought the objection immaterial. Bayley took nothing by his motion. rested on a special capias in which as well as in the affidavit to hold to bail, the initials only of his Christian name were inserted. * (467) June 19th. *Tappenden & al. Assignees of Bray v. Randall. A. in con- THIS cause came on to be tried before Lord ALVANLEY, Ch. sideration J. at the second Sittings in this Term, when a verdict was found paid by B. for the Plaintiffs, damages 2164. costs 10. subject to the opinion of the Court on the following case. of 2001. gave a bond for the pay: an annuity to the The declaration stated, that the Defendant, before the bankruptment of cy of Bray, was indebted to Bray in 300l., for money lent, and 3004. for money paid, and that he was indebted to the Plaintiffs after the bankruptcy in 300%. as well for money before Bray became a bankrupt received to Bray's use, as for money after the bankruptcy received to the use of the assignees, and upon an account stated with the Plaintiffs as assignees. latter of 100 guineas until the hop duties should a Bray duly became a bankrupt, and the commission was issued mount to against him, under which the Plaintiffs were declared his assignees. a certain On the 12th of November 1800, previous to any act of bankruptsum. Be cy, in consideration of 210. then paid by Bray to the Defendant the Defendant entered into a bond in the penal sum of 999%. with taken a condition as follows: "Whereas the said William Randall hath, place, A. "in consideration of two hundred and ten pounds to him paid by brought an action to recover back the 2001. of B. Held, that the action was maintainable. fore this event had TAPPEN DEN & al. V. RAN DALL. "the said John Bray, at the time of the sealing and delivery of 1801. "the above written bond or obligation, contracted and agreed to pay unto the said John Bray or his assigns, on the first day of "May in every year, one annuity or clear yearly sum of one hun"dred and five pounds until he the said William Randall, his "heirs, executors, or administrators can prove by evidence, or "otherwise, to abide by the report of three eminent hop merchants "who shall make it appear to the satisfaction of the said John "Bray, his executors, administrators, and assigns, that the reve"nue received by Government by reason of the duties now as"sessed by parliament upon hops grown in Great Britain, shall "in the present or any one year hereafter, amount to a full and "clear revenue or sum of two hundred thousand pounds, such du"ties to be taken according to those at present imposed by parliament, and not to be affected by any subsequent alteration "whatever; and for securing the due payment of the said annui"ty of one hundred and five pounds *until such event, the said * (468) "William Randall hath entered into the above written bond or ob"ligation: Now, therefore, the condition of the above written "bond or obligation is such, that if the said William Randall, his "heirs, executors, administrators, or assigns, shall and do from "the date of the above bond well and truly pay, or cause to be "paid unto the said John Bray, or his assigns, one annuity or "clear yearly sum of one hundred and five pounds of lawful mon"ey of Great Britain, on the first day of May in each and every 66 year, without any deduction or abatement whatsoever, until "the said William Randall, his heirs, executors, or administrators "shall prove by evidence, or otherwise abide by the report of "three eminent hop merchants, who shall make it appear to the "satisfaction of the said John Bray or his assigns, that the reve"nue received by Government by reason of the duties now asses"sed by Parliament upon hops, shall, in the present or any one year hereafter, amount to a full and clear revenue or sum of two "hundred thousand pounds, such duties to be taken according to "those at the present time imposed by Parliament, and not to be "affected by any subsequent alteration therein, and shall and do "make the first payment of the said annuity of one hundred and "five pounds on the first day of May in the year of our Lord "1802, then and in such case or cases the above written bond or obligation shall be void and of none effect, otherwise it shall be “and remain in full force and virtue. 66 "Sealed and delivered (being first "legally stamped, and several "obliterations and interlineati"ons being made) in presence of "William Randall (Seal.) "John Broad. |