Star.
London, England, 1824-01-29 00:00:00

JUDGM ENT.

Lord Chief Justice ABBOTT.-1 think after the party
has paid the money on such a note as that given in evi-
dence on the present occasion, we should be enabling
the defendants to du that which I am sure they have no
desite to do, to cause an innocent man to be lo.ing his
money, if we were not to say that the plaintiff was en-
titled to recover. To treat this as a case of stoppage in
transitu, would have the „effect of putting a stop to
a very large portion indeed of the commerce of the
City of London.
Mr. Justice BAYLEY.—This appears to me to be per-
fectly 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 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,
then where is the honestp and justice, and equity of the
case? The honesty is, that that vendee who has paid
the price shall be entitled to have the possession of the
goods. And I think, when Messrs. Raikes and Com-
pany signed that delivery order, " transfer, weigh, and
deliver;' that, according to the settled course and usage
of trade, enabled Moberly and Bell to go and sell the
goods again ; and there are many cases which hold,
that if the first vendor does anything which can be
considered as sanctioning the sale by his vendee, that
destroys all right to stop in 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 effect.
Mr. Justice EIOLROYD.—I think the note given by the
defendants 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 v.hich the plaintiffs 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 ap-
pears 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 deliver a
part, and that having been delivered, but not the residue,
the great question then before the Court was, whether
the weighting and delivery of part was not in point of
law transfer of the property as to the whole? The Court
held that it was not, and rightly so held; besides, there
was the circumstance that the price could not be ascer-
tained of the whole before 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 coni plied with pro tanto, and
the property in the residue remained thereloresurcharged
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 VIM 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 acknowledg-
ment to the persons who had bought the goods and paid
for them, that they had transferred them to their ac-
count, and the persons who had bought them were sub-
ject to charges from a certain period. I think, there-

Aire, they hold them as the goods of the plaintiffs, not-
withstanding there was not au actual weighing of them,
that they were in the possession of the plaintiffs by
means of the defendants, the wharfingers, they having
given them the note that they were transferreJ to thern
in their books, and that they were therefore entitled to
recover them.

Mr. Justice BEST.--I think with my brother Hol-
royd that the paper which has been given in evidence
puts an end to the question, if there was any question in
this case; but in fact the question is put an end to by
a case, not only a Nisi Prius deci,ion, but which re-.
ceived 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 Prius, The goods
having been transferred in the name of the purchaser,
it would shake the established principles still to allow a
stoppage in transits; from the moment the defendants
became trustees for the purchaser, there sea= an executed
delivery, as much as if the goods had been delivered
into his own hands. The payment of rent in these cases
t. a circumstance to chew 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 Attoiney-General, afterwards
Lord Chief Justice Gibhs, expressed his acquiescence in
the direction of the Judge at Nisi Prins but moved to
reduce the 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 stopping in transitu
therefore still subsisted when the vendor interfered."
That, therefore, cannot be considered as a mere Nisi
Prius decLion ; it is a oecition which received the sanc-
tion of one of the most distinguished lawyers in West-
minster half, when moving for a new trial, and has
seen sanctioned Ey the Court. But it appears to me,
if we coasider the oa which the stoppage in
transits is built, it cannot be extended to such a case as
this ; if it could, it would destroy that commerce which
is now carried on through the instrumentality of Dock
orders. The vehdee has a right to the goods the mo-
ment 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 ex-
ercised 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 wharfinger
that he holds it for the purchaser. It is said there is,
les change of property here; if there is not, I do not
sea how there can be, until the tallows are actually
melted down and converted into candles. If the AttorH
ney-General is right in this, till the very time when it is
brought into use, though it has passed through a hun-
dred hands, and been paid for by all, if it is not weighed,
the vendor, if he is not fully paid, has a right to stop
in iransiln. It appears to me that we should disturb an
established principle, and a necessarily just principle, if
we held that tha: could be done in such a case as this.
I apprehend it cannot be dune except where the rights
of third parties are not disturbed. It was originally an
equitable right, and was so spoken of, and is still spoken
of as an equitable principle.—Rule refused.
At twelve o'clock the Court rose, and the CHIEF Jus-
TICE proceeded to sit at Nisi Prins.