The Sun.
London, England, 1824-01-31 00:00:00

TRANSFER OF PROPERTY.

COURT OF KING'S BENCH, JAN. 28.
HAKES AND CO. V. WATSON AND CO.
This was an action of trover, brought by the plaintiffs, who
are soap-manufacturers, to recover from the defendants, who
are wharfingers, the value of 79 casks of tallow. The cause
was tried before the Lord Chief Justice at the'London adjourn-
ed Sittings after last Term ; and on the trial it appeared that
the plaintiffs, on the 25th of September, purchased of Messrs.
Moberly and Bell 300 casks of Russia candle tallow, at 40s.
per cwt. and among this lot were 100 casks imported in the
Matilda, and which were then in the warehouse of the defend-
ants, and for which Messes. Moberly and Bell handed the
plaintiff's the following transfer note :
" London, Sept. 25, 1820.

" To Messrs. 'Watson and Co.
" Please to weigh and deliver, transfer, or re-house, to the
order of Messrs. B. and T. Hawes, one hundred casks yellow
candle tallow, ex-Matilda. H. M. charges from the 10th of
October to be paid by the bearer. " MOBERLY AND BELL."
And thedefendants, upon receipt ofth is transfer note, transferred
the tallow into the names of the plaintiffs, and charged Bs. 4d.
for doing so. The plaintiffs, upon receiving the transfer notes
of the other two hundred casks, accepted Messrs. Moberly and
Bell's bills at six months after date, for 1,4401. and 2,8801. In a
few days afterwards the plaintiffs sold three or four lots,
amounting to twenty-one casks, and their orders to weigh and
deliver were obeyed by the defendants ; but on the 15th of
Oct. Messrs. Moberly and Bell having stopped payment, the
defendants refused to deliver any more tallow to the plaintiffs
order, alleging that they had received orders to that effect from
Raikes and Co. of whom Moberly and Bell had originally
bought the tallow, the price of which, except 2001., was paid.
A verdict was found for the plaintiff:
Mr. ATTORNEY-GENERAL this day moved for a Rule
calling upon the plaintiffs to spew cause why that verdict should
not be set aside, and a new trial had. The Learned Counsel
contended that it had been laid down in the case of " Hanson
v. Meyer,'" 6 East, 614, that where goods were sold per the cwt.
the delivery was not complete until after the goods were weighed,
and therefore the right of stopping them in transitu remained
in the vendor.

Mr. Justice BAYLEY—But you admit that the defendants
assented to the plaintiffs delivery order in one or two instances.
Mr. AT TORNEY-GENERAL—I say that Raikes and Co. had
a right to stop in transitu as between themselves and Mo-
berly and Bell, and if that right existed, then the defend-
ants would not be justified in delivering the goods to the
plaintiffs after haying received notice from Raikes and Co. not
to do so.

Mr. Justice BEST--But here is a strong fact in this case
which is not in the case of" Hanson v. Meyer," namely, the
acknowledgment of the defendants, which puts all this doctrine
aside.

Mr. Justice BAYLEY—In the case of " Hanson v. Meyer,"
did not the goods remain in the seller's name? Were the goods
in this instance standing in Raikes and Co.'s names in the de-
fendants' books ?

The ATTORNEY-GENERAL contended that the fact of the
goods having been transferred into the plaintiffs' names in the
defendants' books did not take away the right of Raikes and
Co. to stop in transitu, and that that right was not lost until
the goods should have been weighed.

JUDGMENT,
Lord Chief Justice ABno•r•r—l think, after the party has
paid his money on such a note as that given in evidence on the
present occasion, we should be enabling the defendants to do
that which I am sure they have no desire to do, to cause an
innocent man to be losing his money if we were not to say that
the plaintiff was entitled to recover. To treat this as a case
of stoppage in transitu, would have the effect of putting a stop
on a very large portion indeed of tile commerce of the City of
London.

Mr. Justice BAYLEY.—This appears to me to be perfectly
different from the ordinary case of vendor and vendee. In the
case of vendor and vendee the justice is, that the vendee shall
not have the goods unless he pays the price ; and it is justice
and honesty, that if the vendee cannot pay the price the vendor
shall have the goods back; but if the question arix,:!s not be-
tween the original vendor and the original vendee, but between
paid the full price for the goods, then where is
the original vendor and a purchaser from the vendee, that pur-
chaser having
the honesty, and justice, and equality of the case ? The honesty
hisa.vtheatthe that
venee who has paid the price shall be entitled to
possession of the goods. And I think, when Messrs.
Raikes and Company,, signed the delivery order, " transfer,
el?, that according to the settled course and
enabledv Moberly and Bell to go and sell the
goods again ; and there are many cases which hold, that if the
first vendor does any thing which can be considered as unction-
ing the
by his vendee, that
destroys all right to stop in
usageweig h , o andf
t r a ddedeliver,"
transitu. There are many cases certainly to that effect, some
of which I have been casting my eye upon while the case has
been going on—the case of Stoveheld v. Hughes, in 14 East,
and many other cases to that effi:et.
Mr. Justice HOLROYD.—I think the note given by the de-
fendant makes an end of the present question. After that, I
think the property was in the plaintiffs, and it was kept by the
defendants as the plaintiffs' property, for which the plain-
tiffs were to be liable to the charges from the day mentioned
in that note, that is, from the 10th of October. The case is
"
very different, as it appears to me, from the case cited, of
Hanson v. Meyer ;" in that case there was a sale of a large
quantity of starch at such a price ; the order was to weigh and
del!vered a part, and that having been delivered, hut not the
residue, the great question then before the Court ivas, whether
the weighing and delivery of part was not in point of law a
transfer of the property as to the whole ? The Court held that
it was not, and sightly so held ; besides, there was the circum-
stance that the price could not be ascertained of the whole be-
fore it was weighed, and it was to be paid for by bills ; but the
delivery of part there was not a delivery of the whole ; part
being weighed and part delivered, the order was complied with
pro tent°, and the property in the residue remained therefore
surcharged until something further was done. It was not a
delivery of part for the whole, nor did the consequence follow
by the operation of law that it was a delivery of the whole, so
as to deprive the vendor of his right to stop in transitu. But
here, on the receipt of this note, directing him to weigh and
deliver, the wharfinger sent an acknowledgment to the per-
sons who had bought the goods and paid for them, that they
had transferred them to their account, and the persons who
had brought them were subject to charges from a certain
period. I think, therefore, they hold them as the goods of
the plaintiff's, notwithstanding there was not an actual
weighing of them, that they were in the possession of the
plaintiff's by means of the defendants, the wharfingers, they
having given them the note that they were transferred to
them in their books, anti that they were therefore entitled to
recover them.

Mr. Justice BEST—I think with my brother }Jolroyd, that
the paper which has been given in evidence puts an end to the
n' ifquestion in this case; but in fact the
qquueessttiiooriisptube'tae wneans any
dtoby a case, not only a Nisi Prins de-
cision, but which received also the sanction of the Court—the
case of Harman and others v. Anderson and others—that is
precisely the same as the present. Lord Ellenborough in that
case, when at Nisi Prins, said—" The goods having been trans-
ferred in the .name of the purchaser, it would shake the esta-
blished principles still to allow a stoppage in transits; from
the moment the defendant became trustees- for the pur-
chaser, there was an executed delivery, as much as if the
goods had been delivered into his own hands. The pay-
ment of rent in these cases is a circumstance to shew on
whose account the goods are held ; but it is immaterial here,
the transfer in the .books being of itself decisive. lam
clearly of opinion that the assignees are entitled to recover."
Then, " in the ensuing Term, the Attorney-General, after-
wards Lord Chief Justice Gibbs, expressed his acquiescence in
thedirection of the Judge at Nisi Prins, but moved to reducethe
damages on an affidavit, stating that as to one parcel of the
butters no transfer had been made in the defendant's books to
the bankrupt before the bankruptcy, and that,. the right of stop-
ping in transitu therefore still subsisted when the vendor inter-
fered." That, therefore, cannot be considered as a mere Nisi
Prins decision ; it is a decision which received' the sanction of
one of the most distinguished lawyers in .Westminster Hall,
when moving foe a new trial, and has been sanctioned by the
Court. But it appears to me, if we consider the principle on
which the stoppage in transitn is built, it cannot he extended
to such a case as this ; if it could, it would destroy that
commerce which is now carried on through the inierumen-
tality of Dock orders. The vendee has a right to the goods
the moment the contract is made and executed ; but
there exists in the vendor an equitable right which he
may exercise at any time before the goods get actually
into the possession of the party, provided the exercise of that
right does not disturb 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, it has
been transferred, not only in the books of the wharfinger, but
there has been an acknowledgment on the part of the wharfin-
ger that he holds, it for the purchaser. It is said there is no
change of
.property here ; if there is not, I do not see gee- how
there can be, until the tallowl are actually melted down and
converted into candles. If the Attorney-General is right in
this, till the very time when it is brought into use, though it
has passed through a hundred hands, and been paid for by all,
if it is not weighed, the vender, if he is not fully paid, has a
right to stop in transitu. It appears to me that we.should dis-
turb an established principle, and a necessary just principle, if
we held that that could be done in such a case as this. I ap-
prehend it cannot be done except where the rights of third
parties are not disturbed. It,was originally an equitable right,-
and was so spoken of, and is spoken of as an equitable prin-
ciple.—Rule refused.

LAW INTELLIGENCE:

COURT OF CHANCERY, Jam 30.
EX-PARTE GRIHSTED, IN THE HATTER OF HOWARD

AND GIRDS, lANXRUPTS.
Mr. TRESLOVE and Mr. ROSE were heard in coxtinuatios
of the argument of the assignees against the right of the peti-
tioner, either to be allowed to prove his debt, or that a nevi
trial should be granted.
The COURT rose at two o'clock.—Further hearing on Moll•
day.

COURT OF KING'S BENCH, JAN. 30.
This being the day distinguished in the Calendar as " Kill 4
Charles's Martyrdom," there was no sitting of the Court ex-
cept for justifying bail.

COURT OF COMMON PLEAS, JAN. 30.
This being the anniversary of the Martyrdom of King
Charles, was kept a holiday at this Court, except for a short
time in the morning, during which Mr. Justice Pant sat to
hear some motions of course.

CONSISTORY COURT, JAN. 30:
WILDEY V. WILDEY.
Dr. LUSITINGTON stated that this was a cause of separation
and divorce promoted by William Wildey, Esq., against
Hannah Augusta Wildey, his wife, by reason of her adultery.
The marriage between, the parties was pleaded to have taken
place in the month of April, 1814, and the parties lived and
cohabited together, without interruption for any considerable-
length of time, until the month of October, 1821. Captain
Wildey had formerly been in the army: but he had retired,
from it for a time, and subsequently re-entered the regiment of
foot (the 19th), to which he had before been attached as pay-
master. In October, 1821, this regiment, which was then.
stationed at Weeding, in Northamptonshire, received orders; to"
proceed to Ireland with all possible dispatch. Captain Wilder
was under the necessity of accompanying it, and from the evi--
dente of Webb, a female servant, and others, it appeared that
the last time the Captain and his lady were living together, be--
fore his departure, was on the 21st of October, 1821, in the;
Alpha-cottages. Captain Wildey remained in Ireland until.
the month of May, 1822 ; and this would be proved by those'
who were resident with him in that country. Similar testi.
mony would establish the fact of Mrs. Wildey's continued'
residence in London during the interval, and consequently no
interview could have taken place in the time between the two'
parties. In May, 1822, Captain Wildey returned, and found.,
that Mrs. Wildey had quitted his house, and was resid--
ing with her mother in Upper Baker-street, Marylebone. In
the month of September tollowing, a difference of a serious na-•
ture took place between them, some suspicion having been ex--
cited in his mind that Mrs. Wildey had not conducted herself
with propriety. They continued to reside in the same house ;
but no farther intercourse took place between them, nor had any,
taken place from the middle of July preceding. On the Ist of
September Mr. Wildey went down into Northamptonshire to
shoot, and returned on the sth. On the sth Mr. Hallet, of
Spring-gardens, army-agent, having accidentally seen Mrs.
Wildey that day, congratulated the Captain on the approach.-
ing increase of his family. Captain Wildey testified entire in-
credulity and astonishment on this point; but upon the repre-
sentations of Mr. Hallett, he resolved to watch her more nar-
rowly, and consulted with his solicitor and friends what course-
it would be most advisable for him to take. They recommend-
ed him to watch her, which he -accordingly- did, and on. the
evening of the 9th of September she was observed to leave her
mother's house, in company with her brother. They proceed--
ed into Quebec-street and called a coach ; but finding that
they were observed, they dismissed the coach, and returned to
the house. In the evening, however, Mrs. Wildey managed.'
effectually to elope from her husband, for whom she left the
following note :
" Wildey,—As you told me some time ago that we had bet-
ter part, I take this opportunity of doing so. You, no doubt,
will not be sorry for it. Take care, I entreat you, of my child-
It is fond of you. Don't leave it much to the care of servants:
You need not fear of my running bills in your name, when L.
have left you. With prayers for your's and my child's hap,
piness, I remain your truly unhappy wife.
" H. A. WILDEY."

" Nobody knows of my leaving you, but your going so soon
out of town is the cause."
The Learned Counsel then continued, that there was evidence•
in the cause to show that Mrs. 'Wildey, on the 13th of Septenv
ber, under a feigned name, and at lodgings in Sloane-streets
was delivered of a full grown female child. As it could not be.
the child of Mr. Wildey, the case of her adultery was therefore
clear. The adulterer had never been discovered by the captain-.
The sort of defence which the Learned Gentleman on the other
side would set up, would doubtless be such a slumbering over
his wrong—such a condonation of the ofFence-,or such a negli
gence on his own part in instituting proceedings--as in Captain
Wildey, that that gentleman ought not to be allowed thesemedf
he prayed for. But the evidence would fully prove that there_
had been no such condonation ; that Capt. Willey had, with-•
out any unnecessary delay, and as soon as he was sufficiently
possessed of facts, instituted proceedings ; and was therefore
well entitled to a divorce. It was true that he never suspected
her pregnancy till September ; but that this was the fact was
fully established.
The evidence having been read, and the argument of Coun.
sal on both sides heard,
Sir CHRISTOPIIER ROBINSON said he would take time to
compare the evidence and arguments of Counsel, and give hi%
judgment at a future day.

COAL-MARKET, J.ay.3o.
Ships at Market. Ships sold
73 Newcastle - - 26
22 Sunderland - - 20

Price.
- 348 Od to 408 0a
- 308 Od to 418 Oj

COURSE OF EXCHANGE, January 30.
Amstei dam
Ditto, at Sight
Rotterdam l2 3
Antwerp l2 4
Hamburgh 37 h 4 trf
Altona
Paris, 3 Day's sight
Ditto
nourdeaux, ditto
Berlin
7 10
Prank fot lon the Main
Peterslntrgh •
Vienna
.
Trieste lO 10
Madrid
Cadiz
!Whoa 854 Effective'
354 Effective'
liarcelona
.... 35f
Gil)raltat
Leghorn 46,E
,„,..•,...,OA-Veniee, Ital. Lilf • 27 0
Malta 415 -Naples 3B
Palermo
Lisbon
Oporto
!tin J ant i ro
Bahia
Dublin

49