Alexander Rodger, Charles Carnie, and Richard James Gilman, - Appellants; The Comptoir D'Escompte De Paris, and The Chartered Bank of India, Australia, and China, - Respondents

JurisdictionUK Non-devolved
Judgment Date23 January 1871
Date23 January 1871
CourtPrivy Council

English Reports Citation: 16 E.R. 618

ON APPEAL FROM THE SUPREME COURT OF HONG KONG.

Alexander Rodger, Charles Carnie, and Richard James Gilman
-Appellants
The Comptoir D'Escompte De Paris, and The Chartered Bank of India, Australia, and China,-Respondents 1

Mews. Dig. tit. Assignment, 4. Rights and Liabilities of Assignee, c. i.; tit. Sale of Goods, G. Rights of Unpaid Vendor, 2 e. Determination of Transitus, i. Generally, ii. Delivery to Carrier; tit. Shipping, A. XII. Bill of Lading, 5. Endorsement, etc., XVI. Stoppage in Transitu, 2. Transfer of Bill of Lading. S.C. L.R. 2 P.C. 393, 38 L.J. P.C. 30, 21 L.T. 33, 17 W.R. 468. See S.C., 1871, 7 Moo. P.C. (N.S.) 314, L.R, 3 P.C. 465. See Henderson v. Comptoir d'Escompte De Paris, 1873, L.R. 5 P.C. 253; The Emillien Marie, 1875, 44 L.J. Adm. 14; Ex parte Wilson, In re Love, 1877, 5 Ch. D. 44; Kendal v. Marshall, 1883, 11 Q.B.D. 366; Distinguished, Chartered Bank of India v. Henderson, 1874, L.R. 5 P.C. 514; Dissented from, Leask v. Scott, 1877, 2 Q.B.D. 376.

V MOOEE N.S., 639 RODGER V. COMPTOIR o'ESCOMFTE DE PARIS [1869J ON APPEAL FROM THE SUPREME COURT OF HONG KONG. ALEXANDER RODGER, CHARLES CARNIE, and RICHARD JAMES GILMAN, -Appellants; THE COMPTOIR D'ESCOMPTE DE PARIS, and THE CHARTERED BANK OF INDIA, AUSTRALIA, AND CHINA.,-Respondents* [Feb. 4, 5, 1869]. The forbearance or release of an antecedent claim is not a good consideration for an indorsement of a Bill of lading, so as to defeat an unpaid Vendor's right of stoppage in transitu. L. and S., carrying on business in London and Hong Kong, bought goods of L. and others, Merchants at Manchester, to be shipped to their firm at Houg Kong. The goods were on a ten months' credit, and it was agreed that remittances of proceeds of the sales should be made from Hong Kong to meet the acceptances of L. and S. given for the price of the goods, on receipt of the Bills of lading. L. and S. contracted for the carriage, and shipped the goods in a Vessel they engaged, and the Bills of lading deliverable to their firm in Hong Kong, or their assigns, were signed by the Master and handed over to L. and S., who accepted the draft of the Vendors for the amount of the purchase. Before the goods or Bills of lading reached Hong Kong, L. S. and Co., being insolvent, and pressed by two Banking Firms at Hong Kong, to whom they were largely indebted, in consideration of their debt to the Bank assigned to them the " whole of their property, premises, and chattels, specified in a schedule thereto, with all the estate, right, title, interest, claim, or demand of L. S. and Co., arising thereout or therefrom." The schedule, inter alia, enumerated " All goods and Bills of lading, or other documents, for all goods on the way hither." In pursuance of this agreement the Bills of lading were indorsed and handed over to the Banking-Firms, to whom the insolvent circumstances of L. S. and Co. at that time were well known: - Held, First, that pre-existing debt was not a valuable consideration for the assignment, so as to defeat the right of the unpaid vendors to stop the goods in transitu, and Second, that the transitus had not ended before the arrival of the goods at Hong-Kong, as the transitus continued while the goods were in charge of a third party, contracted with as Carrier for the purpose of forwarding them [5 Moo. P.C. (N.S.), 554]. Where words in an assignment, or deed, are capable of two constructions, they are to be construed strongly against the party who uses them to work a wrong [5 Moo. P.C. (N.S.), 557]. An Assignee of any security stands in the same position as the Assignor as to the equities arising upon it. The case of a Bill of Exchange is exceptional, and is to be dealt with on special grounds [5 Moo. P.C. (N.S.), 555]. This was an action of Trover brought by the Respondents, two Banking Firms at Hong Kong, against the Appellants, the Owners of a Vessel called the Min. The ground of the action was, [539] that the Appellants had refused to deliver to the Respondents three parcels of goods purchased by a Firm carrying on business in London under the style of Lyall and Still, and at Hong Kong under the style of Lyall, Still, and Co., of three Manchester Firms; one parcel of Messrs. Liebert and Co., another parcel of Samuel Mendel, and the third parcel of Messrs. Calvert and Co. The goods had been shipped by the order and direction of Lyall and Still in London, on board the Min, a Vessel they engaged for Hong Kong, deliverable, according to the Bill of lading, to Lyall, Still, and Co., or their assigns at Hong Kong. The Respondents were indorsees and holders of the Bills of lading. The Appellants pleaded, first, a denial of the con-[540]-version of the goods; * Present: Lord Chelmsford, Sir James William Colvile, and Sir Joseph Napier. 618 RODGER V. COMPTOIR D'fiSCOMPTE DE PARIS [1869] V MOORE N.S., 541 and secondly, a denial that the goods were the Respondents'; on which pleas issue was joined. The cause was tried before the Chief Justice, the Hon. John Smale, and a special jury. It appeared on the Chief Justice's notes of the evidence, that the goods in question were purchased from Merchants at Manchester in the autumn of 1866 by George Lyall and Charles Frederick Still, of London, for their firm at Hong Kong, which traded there under the style of Lyall, Still, and Co. Mr. George Frederick Maclean was the resident partner and manager at Hong Kong. One parcel of these goods was purchased from B. Liebert and Co., on a ten months' credit, which was the usual course in such transaction as between Manchester and Hong Kong Merchants. It was part of the contract that remittances of proceeds of sales should be made from Hong Kong, to meet the acceptances of George Lyall and Charles Frederick Still, given for the price of the goods, on receipt of the Bills of lading. The second parcel was purchased from Samuel Mendel on a nine months' credit, with a stipulation of a similar character as to remittances. The third parcel was purchased from Calvert and Co. on a six months' credit, without any special stipulation. The object of the long credit was to give ample time for realizing proceeds, so as to make remittances according to agreement. When the time arrived for forwarding the goods from Manchester, Lyall and Still, of London, employed Killick, Martin, and Co., as Shipping Agents there, to [541] secure tonnage in the Min, which was then in the berth for Hong Kong. When this was secured, Lyall and Still directed the Vendors at Manchester to forward the goods to Killick, Martin, and Co., for shipment in the Min, and they also directed Killick, Martin, and Co. to receive the goods so to be forwarded to them simply for the purpose of the shipment. In accordance with these instructions the goods were packed and marked at Manchester ready for shipment, and were sent up to Killick, Martin, and Co. with whom Lyall and Still had contracted for the carriage from Manchester to Hong Kong. All the charges were included in one through freight. The goods were shipped on board the Min; Bills of lading for them, deliverable to Lyall, Still, and Co., or their assigns, were signed by the Master, and were handed over to Lyall and Still, who accepted the draft of the Vendors for the price in each case. Before this transaction the Firm at Hong Kong was in a failing condition; their deficit was about four lacs of dollars, and in November, 1864, their condition had not improved. At the end of November and beginning of December, Maclean had Bill transactions with- the Respondents (two Banking Firms at Hong Kong), by which he got large advances on the undertaking to furnish shipping documents for silk cargoes, to be ready for the mail of the 15th of December from Hong Kong. On the 13th of December the transactions of the Firm were at a stand; they had ceased to make purchases or shipments of tea or silk as theretofore; they were under the necessity of returning Bills of their Correspondents, and had refused payment of [542] their acceptances to the amount of $150,000. This was well known at the time in Hong Kong. On the 14th of December, Mr. Kaiser, the Manager of one of the two Banks, addressed a Letter to Lyall, Still, and Co., requiring them to furnish, in the course of the day, the shipping documents according to their undertaking; to which Maclean replied that they were unfortunately unable to comply with this request. On the 17th, Kaiser wrote another Letter, insisting on getting the documents, or a return of the advance made on the faith of the undertaking to furnish them, and he concluded his Letter in these words: -" I must ask your immediate attention to this matter, and beg to warn you that my now offering to receive back the money obtained by you must not be looked upon as in any way binding me to treat the matter as one of debt, as I shall hold myself perfectly at liberty to deal with the matter as one of a much more serious character than a mere debt, if it be not at once satisfactorily arranged." Mr. Kaye, the Manager of the other Bank, had had a conversation with 619 V MOORE M.S., 543 RODGER V. COMPTOIR p'ESCOMPTE DE PARIS [1869] Mr. Maclean in reference to the refusal of Lyall, Still, and Co. to pay their acceptances. He also became impatient and urgent for an arrangement, on account of the advance made by his Bank. The two Banks then combined, and Maclean was pressed, as he could not give them the documents he promised, to give them all he had. He was asked, what can you give us? He made out a memorandum, which he handed to Mr. Pollard, the Counsel for the Banks, in order that he might prepare a formal assignment. This was prepared, and was executed, on the 22nd of December, 1866, [543] by Maclean in the name of the Firm, which was at that time insolvent, with liabilities uncovered to the amount of eight lacs- of dollars. The assignment stated the consideration of it to be, first, a debt of $85,714. 28c. owing by Lyall, Still, and Co. to...

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