1804.

DIXON against

BALDWEE.

[177]

agreeable to the directions of the Battiers; a stage and mere instrument between buyer and seller. That he had no authority to sell the goods, and frequently shipped them without seeing them. That the bales in question were to remain at his warehouse for the orders of Battiers and Son; and he had no other authority than to forward them. That at the time the goods were stopped, he was waiting for the orders of the Battiers; that he had shipped the four bales, expecting to receive such orders, and relanded them, because none had arrived. That if the goods had been demanded by the Battiers before shipping, he should have delivered them up to them. At the time when the defendants gave notice to the Metcalfes to stop the goods, they also applied to the Battiers to order them to be delivered up. The Battiers in the mean time called a meeting of their creditors in London, and a case was laid before counsel concerning their right to restore the goods to the defendants; the result of which meeting and opinion was stated in a letter of the 29th of July from the Battiers to the defendants, in which they inform them "That yesterday a meeting was held of ❝our several creditors resident in London, when they "unanimously resolved that it would be most for the inte

rest of the concerned that the affairs should be put in trust, "and that the property should be divided from time to time "amongst the creditors. The opinion obtained from coun

sel, and which we are happy to say agreed with our "wishes, was likewise submitted to their consideration; and "it appeared generally the opinion, that the twist (a) in "Hull should be given up." There was also another letter of the 7th of September from the Battiers to the defendants, inclosing a statement of their affairs; in which they observe, that the defendants' "claim is stated according to what we "conceive it to be, after deduction of the goods stopped at "Hull." The Buttiers committed no act of bankruptcy till the 26th of September 1803, on which act of bank

ruptcy a commission issued on the 1st of October. The assignees afterwards demanded the goods; which the defendants refused to deliver up. Two questions were inade at the trial, 1st, Whether the defendants had a right to stop the

(a) The goods in question..

goods,

goods, as in transitu, at the time they took possession of them or if they had not, 2dly, Whether the Battiers were in a condition to rescind the contract; and if so, whether they had done any act amounting to a rescinding of the contract before their bankruptcy? On the first question Lord Ellenborough inclined against the right of stopping in transitu under the circumstances of the case: and upon the other ground, his Lordship left the question to the jury, Whether or not the consent of the Battiers to the rescinding of the contract and returning the goods, given before the act of bankruptcy, were given bonâ fide, and without any intention of a voluntary and undue preference? which he inclined to think it was; it being after legal advice taken, and upon a conference with their creditors at a public meeting and the jury found a verdict for the defendants. A rule nisi was obtained on a former day for setting aside the verdict and having a new trial, on the grounds that the transit of the goods was at an end at the time when they were stopped by the defendants; and that nothing afterwards happened which could amount to a rescinding of the contract on the part of the creditors, or of the bankrupts; whose ability to rescind it without the concurrence of the creditota was under the circumstances denied.

Garrow, Topping, and Wood, shewed cause against the rule. 1st, The defendants were entitled to stop the goods in transitu in the hands of the Metcalfes, who were middlemen between the vendors and vendees. Hull was not the ultimate place of their destination; but they were ordered to be sent there for the declared purpose of being shipped to Hamburgh. The ultimate place of destination then, as between these parties, was Hamburgh, and the goods were still in transitu till they got there into the hands of the correspondents of the Battiers. The Metcalfes were not the exclusive acknowledged agents of the bankrupts, but were middlemen. They described themselves as expediters, and a mere stage. Their duty was analogous to that of a wharfinger, in whose hands, as in those of a mere carrier, goods may be stopped. Stokes v. La Riviere (a), and Hunter and another, assignees

(a) Sittings after Michaelmas 1784, at Guildhall, before Lord Mansfield, C. J. This case was cited from the argument of counsel in Ellis v. Hunt,

1804.

DIXON against BALDWEN

assignees of Blanchard and Lewis, v. Beal (a), carried the right of stopping in transitu further than this case. In the latter the goods had been sent to the inn in the place where the bankrupts lived, who had given orders to the book-keeper to send them down to the quay, in order to have them shipped to be carried to Boston; and they were accordingly sent; but being too late for the ship, were sent back again to the inn, where they were ordered by the bankrupts' servant to be kept a few days longer till another ship was ready. In that case a new direction had been given to the goods by the bankrupts, and yet the vendor's right to stop in transitu was holden still to continue, and did prevail. But here Hamburgh was the kuown ultimate place of destination in the first instance. The right of stopping in transitu is now become a legal and not a mere equitable right, as it was perhaps at first considered. It was so considered by Lord Loughborough in delivering the judgment of the Court of Exchequer Chamber in Mason v. Lickborrow (b), who refers to Lord Hardwicke's opinion in Snee v. Prescott (c). [180] [Grose, J. If you refer further back to the case of Wiseman v. Vandeput (d), you will find that the right of stopping in transitu was originally put upon a ground of equity, which has since grown into law.] It was expressly stated to be a legal right, and not merely founded on principles of equity, by Lord Mansfield in the case of the assignees of Burghall v. Howard (e), and by the Court of C. B. in Oppenheim v. Russel (f). [Lord Ellenborough, C. J. It must have been considered as a legal right in Bohtlingtk v. Inglis, 3 East, 381., for there the consignors maintained trover against the assignees of the consignee upon a mere demand

r. Hunt, 3 Term Rep. 466.; but Lord Ellenborough, C, J. observed that there was a more correct note of the case given by Mr. Justice Lawrence in delivering the judgment of the Court in Bohtlingk v. Inglis, 3 East, 397.

(a) Sittings after Trin. 1785, at Guildhall, cor. Lord Mansfield, C. J. cited in 3 Term 366.

(e) At Guildhall Sittings after Hil. 32 G 2., cited in 1 H. Blac. 365, 6.

(f) 3 Bos. & Pul. 42.

and

and refusal of the goods by the captain before they were delivered.] The right, then, being founded in justice and the common law, ought to be extended as far as it may, consistent with the principle on which it is founded, that is, till the goods arrive at their ultimate place of destination, and have been taken possession of by or on the behalf of the vendee or consignee. In Hodgson v. Loy (a), even part payment was deemed not to take away the right of stopping in transitu; and the right being founded in honesty, courts have always leant in support of it. This was a case of dealing for the export trade: and all the cases which have been decided against the exercise of the right, have been cases of inland dealings. The goods were sent to the Metcalfes at Hull, merely as a stage on their way to Hamburgh. In Hunt and others, assignees of Bennet and Heaven v. Ward (b), ́ a delivery of the goods to a packer, even by the order of the vendee, did not conclude the right of the vendor to stop them in transitu; the packer being considered as a middleman. In Leeds v. Wright (c), where goods sent from Manchester on account of a house in Paris, were considered as no longer in transitu after they were in the hands of the packer in London, the vendee's agent also lived in London, and had an authority to dispose of the goods where he pleased, and might have made London the place of their ultimate destination. It was therefore not merely a constructive but an actual delivery. And in Scott v. Pettit (d) the like determin ation was made, on the ground that the consignee had no other warehouse than that of his packer, where all goods consigned to him were lodged, and which was therefore their ultimate place of destination.

On the second ground they contended, that it was com petent for the vendees, the Battiers, at any time before their bankruptcy, to renounce the goods, unless it were done with a fraudulent view to give the vendors an undue preference over the rest of the creditors. This was settled in Alderson

(a) 7 Term Rep. 440.

(b) Which came on upon a motion for a new trial in this court a few years before the case of Ellis v. Hunt, in 1789, cited in 3 Term Rep. 467.

1804.

DIXON

against BALDWEN.

[181]

v. Temple

1804.

[182]

v. Temple (a). But the letters negative such a conclusion. For the goods were directed to be restored after legal advice DIXON against taken, and with the general approbation of the meeting of BALDWEN. the creditors convened upon the bankrupt's affairs in London. Till the act of bankruptcy, the trader, though failing, has the legal right to dispose of his property, unless it be done with a fraudulent view of preference. The question then always is, Quo animo the act was done? If the restitution were made bona fide, as it appears here, by the consent of all interested whose opinions could then be taken, that makes an end of the question. The meeting of the creditors was on the 25th of July 1803, when the question was canvassed and counsel's opinion taken; which being favourable to the defendants, the bankrupts wrote on the 29th of July to the defendants to inform them that it was considered as the general opinion that the goods should be given up to them. Without this assurance the defendants might have resorted to legal process; for the bankruptcy was not till the 26th of September. And if the goods had been delivered up in July on a threat of legal process, no doubt the delivery would have been legal. Thompson v. Freeman (b). For even a demand for security will justify the creditor so obtaining it. Smith v. Payne (c). On the question of undue preference they also referred to Cock v. Goodfellow (d), Small v. Oudley (e), Harman v. Fisher (ƒ), and Hartshorn v. Slodden (g); and concluded, that at all events it was a question for the jury quo animo the goods were returned, which they had decided in affirmance of the act of restitution.

Erskine and Gibbs, in support of the rule (h) contended, 1st, That as between the buyers and sellers of the goods, who were the Battiers on the one hand, and the defendants on the other, the goods had reached the place of their desti

(h) I was not in court when the case was argued by the plaintiff's counsel; but what follows is selected from the arguments urged when the rule nisi was obtained, and from the relation of Gentlemen who were present when it was finally heard and determined.

nation,