Bryans and Others v Nix

JurisdictionEngland & Wales
Judgment Date01 January 1839
Date01 January 1839
CourtExchequer

English Reports Citation: 150 E.R. 1634

EXCH. OF PLEAS.

Bryans and Others
and
Nix

S. C. 1 H. & H. 480; 8 L. J. Ex. 137. Distinguished, Evans v. Nichol, 1841, 3 Man. & G. 614; 4 Scott, N. R. 43. Referred to, Gattorno v. Adams, 1862, 12 C. B. N. S. 568; Calcutta and Burmah Steam Navigation Company v. De Mattos, 1864, 33 L. J. Q. B. 219; 10 L. T. 246; 12 W. R. 560.

bryans and others v. Nix. Exch. of Pleas. 1839.-T., a corn-merchant at Longford, who had been in the habit of consigning cargoes of corn to the plaintiffs, as his factors for sale at Liverpool, and obtaining from them acceptances on the faith of such consignments, on the 31st of January, obtained from the masters of two canal boats (No. 604 and No. 54), receipts signed by them for full cargoes of oats therein stated to be shipped on board the boats, deliverable to the agent of T. in Dublin, in care for and to be shipped to the plaintiffs at Liverpool. At that time boat 604 was loaded, but no oats were then actually shipped on board boat 54. On the 2nd February, T. inclosed these receipts to the plaintiffs, 4 M. &W. 176. BRYANS V. NIX 1635 aud drew a bill on them against the value of the cargoes, which the plaintiffs accepted on the 7th, and paid when due. On the 6th February, W., an agent of the defendant, who was T.'s factor for sale in London, arrived at Longford and pressed T. for security for previous advances. T., on that day, gave W. an order on T.'a agent iii Dublin, to deliver to W. the cargoes of boats 604 and 54, on their arrival there. Boat 604 had then sailed from Longford, but boat 54 was only partially loaded. The loading was completed on the 9th, and T. then transmitted to W. in Dublin a receipt signed by the master of the boat, (in the same form as those sent to the plaintiffs), making the cargo deliverable to W. W. received this on the 10th. On their arrival in Dublin, W. took possession of both cargoes for the defendant.-Held, that the property in the cargo of boat 604 rested in the plaintiffs, on their acceptance of the bill, and that they were entitled to maintain trover for it; but that they could not maintain trover for the cargo of boat 54, since none of it was on board, or otherwise specifically appropriated to the plaintiffs, when the receipt for that boat was given by the master.-Quiere, whether a document, similar in form to a bill of lading, but given by the master of a boat navigating an inland canal, has the effect of such an instrument in transferring the property in the goods. [S. C. 1 H. & H. 480; 8 L. J. Ex. 137. Distinguished, Evans v. Nichol, 1841, 3 Man. & G. 614; 4 Scott, N. R. 43. Referred to, Gattomo v. Adams, 1862, 12 C. B. N. S. 568; Calcutta and Bimnah Steam Navigation Company v. De Maltos, 1864, 33 L. J. Q. B. 219; 10 L. T. 246 ; 12 W. R. 560.] Trover for oats. Pleas, 1st, not guilty; 2ndly, that the plaintiffs were not possessed as of their own property of the goods and chattels in the declaration mentioned ; [776] on which issues were joined. At the trial before Williams, J., at the last Liverpool Assizes, the following appeared to be the facts of the case. The plaintiffs, Messrs. Bryans, Herd, & Co., are factors and commission-merchants in Liverpool; the defendant is a corn-factor in London, trading under the firm of Foster and Nix. A person of the name of Miles Tempany, carrying on business as a shipper and exporter of corn at Longford, in Ireland, under the firm of Gethins and Tempany, had been in the habit of consigning grain to the plaintiffs in Liverpool, as his factors for sale on commission, and from time to time drawing bills of exchange upon them against such consignments. He was also in the habit of making similar consignments to the defendant, as his factor for sale in London, and from time to time drawing bills on him in the same manner. These consignments were forwarded from Longford in boats or barges by the Royal Canal to Dublin, where, on their arrival, they were unshipped and warehoused by John Tempany, the brother of Miles, who managed the business of Gethins and Tempany there, and superintended the purchasing, receipt, or shipping of corn there on account of the firm : and he again superintended the re-shipment of them for their place of destination at Liverpool or London, in vessels procured by the firm of J. and T. Delany, who were the ship-brokers and agents of Miles Tempany at Dublin, On the 2nd of February, 1837, Miles Tempany, intending to consign a cargo of oats to the plaintiffs, wrote them the following letter, which they received by post on the 4th :- "Longford, 2nd Feb., 1837. " Dear Sir,-The writer has been confined a short time by the influenza, but is now up in his room, and expects to be at large in a day or two. These oats, with the exception of about ten tons, are very fine, and will give you satisfaction. They will be unloaded in Dublin the end of [777] next week. We have valued on you yesterday for 7301. against these, 10s. per barrel, which you will please honour. We trust they will net a good deal more. [The rest of the letter is immaterial.]-Yours truly, " gkthins & tempany." Inclosed in this letter was a bill of exchange, drawn by Tempany (in the name of Gethins and Tempany) on the plaintiffs, for 7301., dated 1st February, payable to Tempany's order 61 days after date; and also three bills of lading (as they were termed on the part of the plaintiffs), dated Jan. 31st, for oats purporting to be laden on board three boats then in the canal harbour at Longford; one No. 604, signed by 1636 BRYANS V. NIX 4M.&W.77S. Thomas Murtagh, for 480 barrels; another No. 54, signed by Richard Clinch, for 530 barrels; and another No. 88, signed by Patrick Cox, for 460 barrels. The following is a copy of one of these documents :- "Shipped in good order and condition, by Gethins and Tempany [in and upon the good ship called the] (a) boat 604, whereof is master for this present voyage Thomas Murtagh, and now riding at anchor in the canal harbour, Longford, and bound for 'Dublin, 480 barrels of oats, marked and numbered as in the margin,(J) and are to l?e delivered in like good order and condition, at the aforesaid port of Dublin (the danger of the seas, fire, rivers, and navigation of whatever nature and kind excepted) unto Messrs. John and Thomas Delany, in care for and to be shipped Messrs. Bryans, Herd, & Co., Liverpool, [or to assigns, he or they paying freight for the said goods] (a) with primage and average accustomed. In witness whereof, the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, one of [778] which being accomplished, the other two to stand void. Dated in Longford, 31st day of January, 1837. "THOMAS murtagh." That of No. 54 was in the same terms, mutatis mutandis. It appeared that both boats were hired, and the boatmen paid, by Tempany. On receipt of this letter, the plaintiffs accepted the bill of exchange, and on the 7th February returned it so accepted in a letter addressed to Messrs. Gethins ami Tempany, 12, St. John's Quay, Dublin, where Miles Tempany had a store, superintended by his brother John Tempany. The letter was received there by John Tempany on the 8th February, and by him forwarded to Miles Tempany, who received it at Longford on the 9th. The bill was paid at maturity by the plaintiff's. ft appeared also, that about this time the defendant Nix was pressing Miles Tempany for payment of a balance due to him; and on the 3rd February, the defendant wrote informing him that he had sent over a Mr. Walker, "empowered to take such steps on his (the defendant's) behalf as circumstances might render necessary." On the 6th February, Walker arrived in Longford, and pressed Tempany for security. At that time boat 604 was on its voyage for Dublin, having the 480 barrels on board: boat 54 was still in the canal harbour at Longford, partly loaded, the loading having begun on the 1st February, and about 400 barrels being then on board. It was proved also that for some days before the 1st February, these oats had been put apart in a room, where they were undergoing the process of...

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9 cases
  • Borealis AB v Stargas Ltd
    • United Kingdom
    • House of Lords
    • 22 March 2001
    ...the bill of lading as the bailee and the consignee as bailor. This analysis was already well recognised before 1855 as is demonstrated by Bryans v Nix (1839) 4 M&W 775 and Evans v Nichol (1841) 3 M&G 614. But the consignee need not be named and the bill of lading may simply say "deliver to ......
  • Chan Cheng Kum v Wah Tat Bank Ltd
    • Singapore
    • Privy Council
    • 29 March 1971
    ...had been an appropriation of the goods by the shippers to the bank by virtue of which on the authority of Bryans v Nix (1839) 4 M & W 775; 150 ER 1634 and Evans v Nichol (1841) 3 M & G 614; 133 ER 1286 the bank could make good its claim.Their Lordships have concluded that the action should ......
  • McCalmont v Rankin
    • United Kingdom
    • High Court of Chancery
    • 1 January 1849
    ...power of attorney and the assignment were irrevocable: Haille v. Smith (1 B. & P. 563), Anderson v. Clark (2 Bing. 20), Bryans v. Nix (4 M. & W. 775), Gaussen v. Mwton (10 B. & C. 731); Abbott on Shipping, p. 333, 7th edit. The Ship Registry Act does not affect the claim of the Plaintiffs. ......
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