Superior Court.-Bradner and others v. Jones, &c. in New-York, to send to them by some vessel | verdict taken for the plaintiff, subject to bound for Pensacola a bill of goods, and the lat- the opinion of the court. ter, in pursuance of such order, delivered several boxes of goods on board of a vessel loading for Pensacola, and with each load took the customer's receipt, and before all the goods were delivered on board the vessel, a creditor of the vendors seized them by virtue of an attachment against the vendors.-Held, that the goods were not beyond the control of the vendors, until the receipts given to the cartman were given up and the bill of lading given in their stead. Held, also, that the vendors in New-York could maintain their action of replevin against the sheriff and the plaintiff in the attachment, on the ground that the goods were not yet out of the control of the vendors and not yet delivered to the vendees. The force and effect of local commercial usages commented on and considered. The case was argued in this term. Marsh and Sturtevant, for the plaintiffs. N. B. Blunt, for the defendants. VANDERPOEL, J., now delivered the opinion of the court.-The question is, whether at the time the defendant Jones seized the goods by virtue of the attachment against Riley & Walker, they were out of the control of the plaintiffs, and were in contemplation of law, delivered to Riley & Walker. The plaintiffs cannot recover on the ground of any right of stoppage in transitu. The principle is now well settled, that the validity of this right to stop in transitu depends entirely upon the insolvency of the vendee. Kinloch v. Craig, 3 Term Rep. 119; Newson v. Thornton, 6 East, 17; 2d Kent. Com. 543. There is not evidence enough to justify the conclusion that Riley & Walker were insolvent when the sheriff' attached the goods, or when the plaintiffs replevied them. Mr. Dixon, a witness for the defendant, testified that "the standing of Riley & Walker was good for their liabilities." The plaintiffs cannot, therefore, repose themselves upon the right to stop the goods in transitu; an indispensable ingredient to constitute this right, the insolvency of the vendee being wanting. On the 31st of August, 1845, Riley & Walker of Milton, in Florida, sent an order by mail to the plaintiffs, merchants in this city, to forward them a bill of goods. The order did not direct any way in which the goods were to be sent. The plaintiffs commenced filling up the order. Seven boxes and four bales of goods, amounting to over $2000, were packed, and were on the 19th of September, 1845, sent by the plaintiffs' cartman to the brig Republic, in this port, a vessel loading for Pensacola; and receipts were taken from the mate of the brig. No invoices were sent to Riley & Walker. The original invoices remained in the hands of the plaintiffs, to be completed by adding some more goods. On the same day (19th of September,) the defendant Jones, sheriff, by virtue of an attachment against Riley & Walker, as Were the goods, when they were atnon-resident debtors, in favor of the de-tached, in the eye of the law, in the plainfendant Palmer, took these goods from tiffs' possession and under their control? on board the ship, by Palmer's direction. Independently of the usage attempted to On the 20th September, the plaintiffs sent be proven in this case, the law upon this the receipts which had been thus given by point seems conclusive in favor of the the mate, down to the ship, and presented plaintiffs. The receipts delivered to the them to the agent, who always signs bills cartman as he delivered the loads of goods of lading, and demanded a bill of lading to the mate of the vessel, acknowledged for the goods which had been put on that they were received from the plaintiffs. board of the vessel, and which were men- This brings the present case clearly within tioned in the receipts, deliverable to the the principle of the case of Craven and order of the plaintiffs at Pensacola. No another v. Ryder, 6 Taunton, 433, which bill of lading was given, but was refused. seem to be recognized as good authority, This was about 10 or 11 o'clock on the by the most approved elementary wrimorning of the 20th of September. The ters. Lord Tenterden, in his work on shipplaintiffs, shortly afterwards, replevied ping, Abbot, 630, says: "It sometimes the goods. The case was tried before happens that goods intended for exporJudge Vanderpoel in April, 1846, and a tation, are sold under a contract to de VOL. V. 8 Superior Court.-Bradner and others v. Jones, &c. liver them on board of a vessel named by ter of a vessel, when they are to be sent the buyer. In such a case, the seller may by a carrier or by water, is equivalent to a retain his property by taking a receipt for them from the person in charge of the ship, so long as he keeps the receipt in his own hands, the shipment not being under such circumstances a complete delivery to the buyer. He further observes, that the vendor will also retain his right to the goods as against the master of the ship, if he demand a receipt in his own name at the time of the shipment, although the receipt be not delivered, and the master, afterwards, sign and deliver a bill of lading to the buyer, who becomes insolvent before the departure of the ship. delivery to the purchaser, might have applied. Though the boxes here were marked "Riley & Walker, Milton, Fla." yet it was competent for the plaintiffs, before the delivery was completed, and before the bill of lading was given, to do what they subsequently did in respect to these very goods-nominate a consignee residing at Pensacola, with directions to him not to deliver the goods to Riley & Walker, without their complying with such terms as to payment, as the plaintiffs saw fit to prescribe. It is emphatically, proper that such right should remain in the seller, until the selection and shipment of the goods are completedthe receipts given up, and the bill of lading given in lieu of them. Chief Justice Abbott, (Abbott on Shipping, 398,) after stating the practice of taking receipts from the master or person on board of the vessel, further remarks, that the master must make out his bill of The rules of the common law are, lading, according to the direction of the therefore, sufficient for the purposes of the shipper of the goods, or the holder of the plaintiffs, without the aid of the local receipt given on the shipment, that the usage here attempted to be proved. But shipper has the right to name the con- the usage, as proved, if there was doubt signee, to be mentioned in the bill of lad- as to what the law is, would materially ing, even although it may not be expressed aid the plaintiffs. It is not necessary that in the receipt, that the goods are shipped these usages of trade, should like cusfor his account, this being tacitly under- toms have existed immemorially. It is stood; and if the master signs a bill of sufficient, if they be established, known, lading for delivery to another person, and certain, uniform, reasonable and not condeliver, accordingly, he may be answerable trary to law. 2 Greenleaf on Ev. 207. to the shipper for the value of the goods. Todd v. Reed, 4 Barn & Ald. 210. This, surely, must be the rule applica- Collern v. Hope, 3 Warb. 150; 3 Watts, ble to this case. The selection and ship- 178. Indeed, it has been held that a parment of the goods here had not yet been ticular usage in reference to the contract completed. A portion of the goods or- in question may be proved to influence its dered was yet unselected and unshipped. construction, though contrary to some No bills or invoices had yet been for- general rule of law, and then it will be a warded to Riley & Walker, and it is dif- question of fact, whether the parties conficult, consistently with the plainest dic-tracted in reference to the usage or not. tates of common sense to conclude, that 3 Cow. and Hill, 1414, and cases there the title to or control over the goods had so completely passed out of the plaintiffs, as to preclude them from maintaining an action for taking or converting them. Had Riley & Walker designated or directed the vessel by which the goods were to be forwarded, and had the plaintiffs, pursuant to such direction, put the goods on board of such vessel, with a bill of lading for Riley & Walker, the plaintiffs' case would have been entirely different from the one now presented. Then the principle urged by the defendants, that the delivery of goods to a carrier or mas cited. Such usages must be proved by witnesses who have had frequent and actual experience of the usage, and do not speak from report alone. 2d Greenleaf, 208. Though it is contended by the defendant, that the evidence and the usage in this city, is only of what the witnesses themselves who are called to prove the usage did, yet the evidence strikes me as strong enough to prove its general existence here. Four of the most extensive dealers of our city were called to prove it. Mr. Leroy M. Wiley testified, that when goods are to be shipped coastwise, Court of Common Pleas.-Decisions in December Term, 1846. they are taken to the vessel, and two re- It is contended for the defendants that the case of the People v. Haynes, 14 Wend. 546, is analagous to the present. There, Haynes, who resided in Boston, was indicted for obtaining goods by false pretences, from Addams & Co., of this city. The question there was, whether the delivery was complete before the representations were made upon which the indictment was founded, and the Court of Errors decided that the goods had become the property of Haynes before the alleged false representations were made, and that the defendant, therefore, could not be considered guilty of the crime charged against him. The leading features of that case distinguish it conclusively from the present. There, Haynes was in the city, and purchased the goods himself, and directed them to be sent to the Providence steamboat, to be forwarded to his residence ; and the Court held that af ter this the sale was complete. The delivery of the goods on board of the vessel designated by Haynes was tantamount to a delivery to himself, personally, and the purchase was complete. Riley & Walker did not make the purchase in this case in person. They never designated any vessel by which they were to be forwarded; and, moreover, the whole order was not yet satisfied. About three hundred dollars worth of goods were yet unselected. The two cases are, therefore, entirely dissimilar. Besides, there was not in that case any evidence of the local usage here relied upon. As the goods in the case under consideration were still under the control of the plaintiff when they were attached by the sheriff, notwithstanding their delivery on board of the vessel, the plaintiffs are entitled to recover. JONES, Ch. J., and OAKLEY, J., concurred. Court of Common Pleas. [NEW-YORK.] Before the Honorable M. ULSHOEFFER, First Decisions in December Term, 1846. In an action against a husband for necessaries furnished to the wife, evidence that the husband had gone to another state without providing for her, was sufficient evidence to go to the jury to prove the fact of desertion by the husband. Usher v. Holleman. In such a case it is not necessary for the plaintiff to show a demand upon the husband to provide for his wife. The jury may infer such refusal from the desertion. Idem. Where a mother buys articles, in such a case, for her daughter which are necessary, she may recover the amount paid, in an action against the husband. Idem. Declarations made by the wife to third persons that she would not live with her husband, and communicated to the husband, are admissible on behalf of the defendant. Idem. Where the testimony shows that, the note upon which the suit is brought was given in renewal for a previous note, which was an accommodation note, evidence of an usurious agreement in regard Eldon Anecdotes. to the original note or to the renewal, Where a landlord, who has granted a lease of premises to a person who afterwards becomes insolvent and assigns the lease, purchases from the assignee the residue of the term, he cannot afterwards recover from the tenant or assignee the rent of the portion of the quarter which occurred before the sale. Lord v. Joachimssen. Where a plaintiff seeks to avoid a sale of goods upon account of fraud in making the contract, and to recover for the value of the goods, he must offer to return what he has received on account of the contract. Banta ads. Griffing. If he has passed away the note to a third person, he cannot avoid the contract while the note received on that sale of goods is in circulation. Idem. A note given generally for the accommodation of another may be recovered, although passed for an antecedent debt, and the holder need not show he paid value for it. Sadler ads. Tobias. a Where the note so lent is the note of firm, one of the members of which did not assent to the loan, he is not liable unless the holder shows that he paid value there for. tenth day, and before the time for pleading expired, and the defendant having received notice of assessment, waited until moved to set aside the default, he was after judgment was perfected before he deemed to have waived the irregularity by the delay. Gallagher v. White. Where the landlord distrained on articles exempt by statute, and was so informed before the levy, a certificate that the trespass was malicious was properly granted. Batterson v. Ferguson. THE ELDON ANECDOTES. WAGER CASE. We had, said Lord Eldon, an amusing case at York. Stakes for a race had been paid to the owner of the horse that won; deposited in the hands of one party, to be but then there was a condition that each horse was to be ridden by a gentlemanand it was disputed whether the horse that did win had been ridden by a gentleman, or not. This action was to ascertain this point. Now the holder of the stakes stated that he was anxious to get the money paid, provided he was sure that he would not be called upon to pay it over again. The judge told him he was quite right to be careful, and it must be ascertained whether the person was a gentleman, or not. Well, we had a great deal of evidence, and then we came to the summing up of the judge, who addressed the jury in these words :-"Gentlemen of the jury, when I see you in that box I call you gentlemen, for I know you are such; custom has authorized me: and, from your office there you are entitled to be called gentlemen. But out of that box, I do not know what may be deemed the requisites that constitute a gentleman: therefore, I can give you no direction." (A laugh.) The jury returned a verdict that he was not a gentleman. Well, the next morning he challenged both Law and me, who were conducting the cause against him, for saying he was no gentleman. We sent him this answer, that we could not think of fighting one who was pronounced by a solemn verdict of twelve of his counWhere a default was entered on the trymen, to be no gentleman. Idem. The plea of non infregit conventiomen in an action of covenant, is bad. Davis v. Clayton. QUESTIONS OF PRACTICE. In Chancery.-Morris v. Howes. ENGLISH CASES. In Chancery. Before the Right Honorable Lord Chancellor the deed was executed which purports to be an exercise of the power. It is under this instrument that the question arises. Now, it seems difficult, without authority, to suppose that a power, to be exercised by this lady at any time or times, during the coverture-the orly coverture being MORRIS V. HOWES.-10th and 14th No- the marriage then to be contracted vember, 1846. MARRIAGE SETTLEMENT-POWER OF should be a power which might be exercised when she was not under coverture AP- at all, that is, when she was a widow. No authority is cited in support of such Thomas Plumer, the other way in this a position, but there is the authority of Sir very case, though not in a suit betweenthe same parties. On a bill for the specific performance of an agreement for the sale of the estate mentioned in the settlement, Sir T. Plumer goes into the matter, and discusses this question, then raised before him, and was of opinion that the words of the power only applied to the first coverture. Then, there was another suit by A. Hick By a marriage settlement, a term of years was limited to trustees, upon trust to raise a sum of money, and pay the same when raised, to such person or persons, and upon such trusts, &c., as the wife," at any time or times thereafter during the coverture, and notwithstanding the same" should by deed or will, &c., appoint :Held, (affirming the decision of Wigram, V. C.,) that the wife, who married a second time, had a power only to appoint during the first marriage. THIS was an appeal from the decision of the Vice-Chancellor (Wigram.) The facts of the case, together with the arguments used before his honor, will be found at length in the report of the case, 4 Hare, 599. Romilly, Wood, J. Parker, Elmsly, T. Parker and Sandys, appeared for the several parties in the cause. tion to 66 THE LORD CHANCELLOR :-After commenting on the construction of a limitaexecutors and administrators," proceeded. If the power here in question was not executed, the fund clearly forms part of the estate of Ann Hickman. man who was entitled to the fund if the Lord Loughborough dismissed the bill, but power was not exercised. It appears that what led to this decision I cannot tell. The only fact appearing is, that, that there being an ultimate limitation to executors and administrators of Ann Hickman, she being living, files a bill, claiming to have the sum raised and paid to her at once. There is, however, no ambiguity as to the grounds on which Sir Thomas Plumer proceeded. It would require strong authority to induce any court to hold that the wife might, when no longer covert, exercise the power given by this settlement; and when I find the question raised and decided in one instance, while no authority is adduced on the other side, and adding to this my own opinion as to the construction, I must hold, that the power excercised after the first coverture was not good. This disposes of the questions raised in this case. The appeal has therefore failed, and the costs will follow this deci sion. The point I have to consider, is, on the construction of this power, whether it was one to be exercised during the coverture only, or at any other period? The property of the wife consisted of 900l. to which 1007. was to be added by her mother; and the husband creates a term of years in certain premises, upon trust to raise a sum of 1000l., and pay the same to such person or persons, as the wife, "at any time or times thereafter, during the coverture and notwithstanding the same," should by deed or will appoint. The wife did not exercise this power during the coverture, that is, in the life of the husband, during the continuance of the first marriage. On the second marriage, Where a sum of stock was standing in the names Before the Right Honorable Sir LAUNCELOT MARRIED WOMAN-REVERSION. |