The Liverpool Standard and General Commercial Advertiser.
Liverpool, Merseyside, England, 1840-04-14 00:00:00

•
k\,440%
Nib„

dons Bent to Mr. T. B. Ma4ne;i.t,pia stun
reeting purchase u• itaof_ too: er-
pool fir an stating p \at ottaaa, Zgla c ain
qmality could be obtained at a certain price, 300 bales were
l'be• shipped ; if not, 100 were to be left entirely to Mr.
Molyneux's sown choice. In the April of the following
year, Captain Toole went to Charleston and received from
Mr. Molyneux 304 bales of cotton. Four bills of lading were
prepared, and they.were to the order of the Liverpool house,
ortheir assignees. On the 13th of June, 1837, the vessel
arrived in Liverpool. On the preceding day, the 12th,
Messrs. Humberston and Frodsham had become bankrupts.
The Diamond, as he had stated. arrived on the 13th ; on
the 14th, the defendant, Mr. Edmund Molyneux, went
on board the vessel, and fixed a notice on the mast, intima-
ting that the vessel was his property, and warning any per-
son from interfering with it. Within an hour after, the pro-
visional assignee wider the commission of bankruptcy went
on board, and gave notice that the cargo belonged to the assig-
nees, and forbidding any one to touch it. There were, there-
fore, two claims ; that of the assignees, because they consi-
dered that the property of the cargo was vested in the assig-
nees, from the time of its being placed on board, and the
defendant claimed as the mortgagee of the ship. Toole, the
captain, was at a loss what to do, but, having got professional
assistance, he determined to disregard both notices ; to get
the cargo landed and sold, and pay over the proceeds to some
person who might be fixed upon. This intention the captain
was hindered from carrying into effect by the defendant, who,
on the 28th, sent a large posse of people on board the ship.
The cargo was afterwards discharged, on an understanding
that the same should be disposed of, the proceeds to be de-
tained, and await the ultimate determination of the court.
After having been a long time before the courts, the casehad
at last come there, and a most important one it was, from the
value of the property at stake. There were two seizures by
the defendant, the first of which took place on the 14th, when
he claimed as mortgagee, and the second on the 28th ; when
he claimed as the agent of Mr. Thomas B. Molyneux, of
Charleston. He first claimed as the owner of the vessel ;
and then he represented himself as the agent of Mr. T. B.
Molyneux. The defence he had now. set up was, that he bad
a right to stop the cargo, because it was goods in transitu,
and the property had not been in the bankrupt's possession ;
and he said that, in defiance of the vessel being in the pos-
session of the captain by themselves, of the vessel being their
own, subject, of course, to the mortgage, and of the bills of
lading being in their name. He (the learned counsel) thought
that the inference which the jury would draw from the facts
which would be laid before them would be, that the moment
the goods were delivered on board the vessel they became
the property of the Liverpool house, and that there could be,
no stoppage in transitu. Mr. Alexander then noticed the
several pleas on the record, one of which afterwards gaverise
to a very long discussion.
Evidence and documents in proof of the facts were adduced.
Mr. CRESSWELL, in the course of the.examination, raised
several technical objections, which he requested his lordship
to enter on his notes.
The plaintiffs case having ended.
Mr. CRESSWELL submitted that the plaintiffs must either
be nonsuited, or a verdict givh for the defendant. The plain-
tiffs declared in trover for certain cotton. The defendant
justified with respect to 304 bales, which he admitted to have
been placed on board of Toole's ship, and that certain cir-
cumstances existed with reference to those 304 bales which
made out a justification. The plaintiffs admitted, that as to
those 304 bales placed on hoard of Toole's ship, they had no
answer, but said that they claimed in respect of other 304
bales. He (the learned counsel) therefore apprehended that
the plaintiffs were bound to prove 304 bales to which those
circumstances were applicable, and 304 other bales different
from those. That they had not done-; they had merely proved
one lot of 304 bales consigned to Humberston and Frodsham,
by Toole's ship. He therefore contended that before the
plaintiffs could recover on their new assignment, they must
exhaust their plea, and then recover the surplus, just as in a
common action for assault and battery. It had been con-
tended on the other side, that although the cotton was the
same in both cases, the circumstances were different, The
truth was, that the plea applied to cotton ; whether the cir-
cumstances did or did not was another thing. If they meant
to say that the circumstances did not apply, they should have
traversed. The question was this : was that plea of conver-
sion (the 4th) pointed to this cotton? If it was, than there
was an end of the case. If it were said that it was not, to
what other cotton did it apply ?. There was no evidence from
beginning to end, of other cotton. They must make that out ;
it was not enough for them to say, the circumstances in
your plea do not apply to this cotton," because they had not
traversed the circumstances. But the fact was that the plea
(the fourth) must apply to the 304 bales of cotton brought
over in Toole's ship, and which the defendant pleaded that
he had converted under circumstances which- justified him,
and that plea had been admitted by the plaintiffs. It could
apply to none oither, because none other had been proved.
He contended,) therefore, that unless a different let was
proved, the plaintiffs must be nonsuited.
Mr. ALEXANDER, Mr. WIGHTMAN, and Mr. COWLING
opposed this view of the case. They contended that though
the defendant had put in a plea that a lot of 304 bales had
been legally converted by him, and that plea had been ad-
mitted, there was a lot of 304 bales which were under dif-
ferent circumstances to those which had justifiably been
stopped in transitu by him—a lot which the plaintiff alleged
he had no right to stop in transitu, and that he was bound
to show that it was subject to stoppage. The conversion of
which they spoke, was a conversion different to that acknow-
ledged to have been justified. The cotton might be the
same, but the circumstances were different, and they were
not bound to show a different lot. They cited, as a prece-
dent, the case of Bolton and Sherman.
The learned JUDGE—Then it is a question whether you
are to prove a negative or they an affirmative. You say that
it lies on them to show that the ownership did not belong to
the bankrupts.
Mr. COWLING did not care in whom the legal ownership
was vested. He claimed from actual possession, and con-
tended that as soon as the goods were placed on board the
vessel, the bankrupts were in possession. In the first place,
the defendant claimed as the mortgagee of the vessel, and of
the conversion which took place under that claim, they did
not complain ; but he afterwards claimed as the agent of Mr.
T. B. Molyneux, and they did complain of the conversion
which took place under that claim.
His LORDSHIP, without giving any opinion, overruled the
objection of Mr. Cresswell, that the point may be argued at
length before the higher court.
Mr. CRESSWELL then addressed the jury for the defen-
dant. The Messrs. Humberston and Frodshatti sent a vessel
to Charleston (to which vessel they had appointed their own
captain), having previously sent directions to Mr. T. B.
Molyneux to purchase for them 300 bales of cotton, and to
draw on them for the amount. He shipped the cotton, and
drew on them for the amount ; but before the bills were paid
and the cotton had arrived, Messrs. Ilumberston and Frod-
sham had become insolvent. Clearly, therefore, the law
gave the original vendor of the goods the right to stop them
in transitu. But then Humberston and Frodsham , said,
with reference to that, we have made out that the ship was
ours, and the delivery to our captain, on the other side
of the Atlantic, was a delivery to us, so as to stop that
right of stoppage in transitu. But it had been shown in
evidence that there was another person who was part owner
of the vessel, [Mr. Taggart, a partner with Messrs. Hum-
berston and Frodsham, in a ship-building concern, carried
on in the Isle of Man], and they were bound to account to
him for the freight. There was the plainest proof of
that : in their own bills of lading they were bound to pay
freight-9-16ths of a penny sterling. If the ship were their
own, and they had not to account for any freight, would
they have put that into the bill of lading? But if the ship
were under mortgage, and the mortgagee got' possession of
it before the goods were delivered, could Humberston and
Frodsham, as against the mortgagee, who on taking posses-
sion was entitled to all the freight, have brought that bill of
lading, and asked to have the goods delivered up without
paying freight ? He apprehended not, because it was strictly
the law that if any person became the endorsee of a bill of
lading, and claimed under it, he made him responsible for
the freight expressed in it. The mortgagee, then, had a clear
right to take possession of the ship ; and how could Messrs.
Humberston and Frodsham claim the cargo without paying
the freight expressed in the bill of lading? Mr. Edmund
Molyneux took possession immediately after arrival, as mort-
gagee, and before the messenger of the bankrupts went on
board, and he kept possession from that time. The assignees,
on the other hand, preferred their claim ; but on the 28th of
the month, Mr. Molyneux said, " No ; I hold this cargo for
Mr. T. B. Molyneux, because he is an unpaid vendor."
Every act done for the benefit of another party, if afterwards
ratified, was as good in law as if it had been.previously men-
tioned ; and did any one doubt that that act received the
sanction of Mr. T. B. Molyneux ? The question for the jury
narrowed itself into this—were not the goods brought home
on freight, and not in the absolute possession of the Messrs.
Humberston and Frodsham—were they not undelivered, and
actually stopped in transitu by Mr. Edmund Molyneux, and
by the ultimate sanction of Mr. T. B. Molyneux ? Those
were the only two questions of fact in the case, and he felt
confident that they would be decided in favour of the defend-
ant, and he expected that they should turn out to be equally
right on the question of law.
His LORDSHIP then summed up. He said that the plain-
tiffs, as assignees of Charles Humberston and Samuel Frod-
sham, complained of Mr. Edmund Molyneux, in an action
of trover, for the purpose of recovering the due of certain
bales of cotton, alleged to be their property, as the assignees
of Messrs. Humberston and Frodsham, and wrongfully con-
verted to his own use by the defendant. The defendant first
pleaded that he was not guilty, and by that plea put in issue
only the fact of conversion. He admitted that the property
did belong to the plaintiffs, and that if the goods were con-
verted at all, they were wrongfully converted by him. Now,
inasmuch as it appeared that the 304 bales of cotton had been
consigned, by bill of lading, to Messrs. Humberston and
Frodsham ; that they were in the possession of Toole; the
captain appointed by them •, and that afterwards Mr. E.
Molyneux took possession of them, and refused to deliver
them up, and actually disposed of them, that was a conver-
sion, leaving, of course, untouched the question as to whose
property the goods were, and the right to take possession.
On that plea, therefore, the verdict must be for the plain-
tiffs. The second plea was, that the plaintiffs were not the
assignees of Messrs. Humberston and Frodsham ; but the
jury had heard the evidence on that point, and he believed
there was no contention about any fact proved in evidence.
There had been a dispute as to the substitution of one peti-
tioning creditor for another, but there was no dispute as to
the plaintiffs being the assignees of the bankrupts, and there-
fore on that plea the jury would find also for the plaintiffs.
Then there was a third plea, in which the defendant said
that the plaintiffs were not possessed of the goods as of their
own proper persons. The counsel for the defence con-
tended that the verdict on this plea should be for him, as it
appeared by the evidence that, although the captain of the
ship had been appointed by the bankrupts, and he had re-
ceived the goods for them, Mr. Edmund Molyneux, as the
mortgagee, took possession of the ship for himself, and of the
cargo for Mr. T. B. Molyneux, who, it was alleged, was the
consigner of the cotton, and consigned it to the bankrupts,
subject to the payment of freight, but that it did not reach
tatnlogoi eethnil lcuniyalaiidtfehs i‘eolourlfe.tatarhnde owners, and that Mr. T. B. Molyneux,
as he had a riEght to do, stopped it in transitu through the
eemadsuejnudwd
hg Molyneux,eic)iihwowuelvd however, that
stthi afthehe defendant.dju defendantr seemeditn
givinglead
y
the verdict to him because the captain was appointed by
Messrs. Humberston and Frodsham, and was, therefore,
y their their agent, and the deliver to agent was a delivery to
them. After that delively,theiefbre,lhe right of stoppage
inar transituose oout
of, f
thoughas
gone
'n
o :uhpeonn ca,
frieefotuhertl
fourth.
plea issue,
The
so uto
sought fourth which
plea stated the facts under which the defendant
justify that the goods were purchased by Mr. T. B. IVIoI
y-
neux, and consigned by him to the bankrupts, :and by him
shipped on board the vessel of Captain Toole, and that they
were to be paid for by a draft on Humberston, Frodsham,
and Co. ; that no payment had been made ; and that, while
in the possession of Toole, and before theythe reached the hands
of Huinherston, Frodsham, and Co'
the.. defendant, as the owner of the ship):
iw)yerae
ssttoppedage by
transitu. Now, here the plaintiff might have taken
np in
onef
two courses ; either he might have denied the facts stated in
the plea, or, as he had done, he might have admitted all the
facts as true, but said that they were no answer to his claim,
inasmuch as the action was not brought for the value of the
' 304 bales of cotton in the plea, but for the value of 304 bales
which the defendant had converted under other circumstances
than those. On this the jury had heard the discussion which
had taken place, and which would probably not end there ;
it depended more on a point of law than or any particular
evidence, because it had been admitted by the counsel for the
plain • tiff that there was, in point placed, no other lot of cot.
under different cir-
ton, only that those hales were p
that they were bound
cumstances. Now, it appeared to him
to prove that there were other bales of cotton converted by
the defendant than those which were consigned by Mr. T.
B. Molyneux, and that it was not enough to show that these
same 304 bales were converted by the defendant under diffe.-
rent circumstances, and without the justification alleged in