Dixon and Another against Yates, Kaye, Bond, and Proctor
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 1833 |
| Date | 07 June 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 806
IN THE COURT OF KING'S BENCH
S. C. 2 N. & M. 177; 2 L. J. K. B. 198. Principle applied, Lackrington v. Atherton, 1844, 7 Man. & G. 364. Distinguished, Scott v. England, 1844, 2 D. & L. 524. Discussed, Tanner v. Sewell, 1845, 14 Mee. & W. 38. Referred to, Meyerstein v. Barber, 1866-70, L. R. 2 C. P. 51, 661; L. R. 4 H. L. 317; Heilbutt v. Hickson, 1872, L. R. 7 C. P. 450; Kemp v. Falck, 1882, 7 App. Cas. 586; Badische Anilinund Soda Fabrik v. Hickson, [1906] A. C. 424.
[313] dixon and another against yates, kaye, bond, and proctor. Friday, June 7th, 1833. D. bought of Y. forty-six puncheons of rum, lying in the warehouse of Y., at Liverpool, and sold them to C., who was a clerk of Y., but carried on business for himself. D. gave C. an invoice, specifying the marks and 5 B. & AD. 311. DIXON V. YATES 807 numbers of each puncheon, and took his acceptances for the price. The rum, and the samples which had been taken, remained in Y.'s warehouse. The invariable mode of delivering goods sold while they are in warehouses at Liverpool, is by the vendor's giving a delivery order to the .vendee. D. was asked by C. for delivery orders, but declined giving, any, except for two or three puncheons, which C. received. C. marked, coopered, and gauged the casks. While the bills were running, C. sold twenty-six of the puncheons to K., who paid him for them, and who, by C.'s permission, without the knowledge of D., gauged and coopered the casks in the warehouse of Y., and marked them with his initials. C. gave an invoice to K., stating the marks and numbers of the casks, and by whom the rum was bonded. C. also, while the bills were running, sold eighteen puncheons of the rum to two other parties, to whom he gave similar invoices, and samples; and who afterwards obtained three of the puncheons, on a delivery order signed by themselves, but not by D. They paid C. for the whole. The bills given by C. for the price of the forty-four puncheons were dishonoured : Held, upon special case, (whereby it was agreed that the Court should be at liberty to draw from the facts any inference that the jury might have drawn,) that C. never had acquired the actual possession of the rum, and on his dishonouring his acceptances, D. had a lien on it for the price ; and that C.'s subvendees could not claim against D. the rum which remained undelivered to them. [S. C. 2 N. & M. 177; 2 L. J. K. B. 198. Principle applied, LacJcrington v. Atherton, 1844, 7 Man. & G. 364. Distinguished, Scott v. England, 1844, 2 D. & L. 524. Discussed, Tanner v. Sewell, 1845, 14 Mee. & W. 38. Referred to, Meyerstein v. Barber, 1866-70, L. R. 2 C. P. 51, 661; L. R. 4 H. L. 317; HeilbuU v. Hickson, 1872, L. R. 7-C. P. 450; Kemp v. Falck, 1882, 7 App.'Gas. 586; Badische Anilin und Soda Fabrik v. Eickson, [1906] A. C. 424.] This was a feigned issue under the Interpleader Act, 1 & 2 W. 4, c. 58, to try whether the property in, or the right of possession of, forty-four puncheons of rum, then being in a certain warehouse of the defendant Yates, or any part thereof, was in the plaintiffs on the 18th of November 1831, when they demanded the same of Yates, and he refused to deliver the same or any part thereof to the plaintiffs. At the trial before Patteson J., at the Lancaster Spring Assizes 1832, a verdict was found for the plaintiffs, subject to the opinion of this Court on the following case : and it was agreed that the Court should be at liberty to draw from the facts therein stated any inference that the jury might have drawn. On the 28th of June 1831, the plaintiffs, spirit merchants at Liverpool, bought of the defendant Yates 147 puncheons, 10 hogsheads, 2 barrels of rum, which had been bonded by Yates in his own name, and placed by him in his own bonded vaults, in Atherton Street, [314] Liverpool. At the time of this purchase Yates handed an invoice to the plaintiffs, specifying the marks and numbers of each puncheon or cask, and the name of the vessel which imported it; and at the bottom was written, " Warehoused per J. B. Yates and Co., in Yates's, Atherton Street." The price, 18121., was paid by the plaintiffs to Yates, in August and September. On the same 28th of June on which this purchase was made, the plaintiffs resold a part, viz. 35 puncheons, to Collard, who was clerk to Yates, and also carried on business on his own account, as a spirit merchant, with the knowledge of his employer. For the price of this parcel of 35 puncheons, Collard accepted two bills for 2401. each; and after the sale, the plaintiffs gave Collard delivery orders on Yates for the whole 35 puncheons. The invariable mode of delivering goods in warehouses at Liverpool, is by handing delivery orders. Yates kept no transfer books. On the 5th of October 1831, one of the bills given in payment for the parcel of 35 puncheons was dishonoured, and was taken up by the plaintiffs. Up to that time Collard had been in good credit with the plaintiffs. When the other bill was nearly at maturity, the plaintiffs, on the 29th of October 1831, to save their own and Collard's credit, advanced money to take it up. Both bills were in the hands of Moss and Co. the plaintiffs' bankers. On the 13th of August 1831, the plaintiffs bought of the defendant Yates another parcel, consisting of 51 puncheons of rum, which had been imported from Jamaica in the ship " Alecto," and which were bonded by him in his own name, and placed in his own bonded vaults in Atherton Street. Yates gave an invoice as follows :-"Liverpool, 808 DIXON V. YATES 5 B. & AD. 315. 13th of August 1831, Messrs. [315] W. Dixon Jun. and Co. Bought from J. B. Yates and Co. 51 puncheons Jamaica rum. Payment two months and two months." The numbers and marks of the casks were then inserted, and at the bottom there was a memorandum, "Warehoused per J. B. Yates and Co. 29th of July 1831, in Atherton Street." The price of this lot, 6241. 6s. Id., was paid by the plaintiffs on the 5th of November 1831. On the same day on which this latter purchase was made by the plaintiffs, viz. the 13th of August 1831, they sold to Collard 46 puncheons, viz., 10 puncheons of the parcel first above mentioned, of 147 puncheons, 10 hogsheads, and 2 barrels; and 36 of the 51 puncheons last mentioned ; and they delivered to him an invoice specifying the marks and numbers of each puncheon. For the price, 5891. 6s. 2d., Collard accepted two bills drawn upon him by the plaintiffs, dated the 13th of August 1831, payable respectively at three and four months, at Barclay, Trittons, and Co. in London. One of these bills the plaintiffs paid away; the other they paid to their bankers as cash. After the last-mentioned purchase by Collard from the plaintiffs, he applied to them for delivery orders on Yates, which they refused to give ; but said that, if he wanted one or two puncheons, they would let him have them. Collard addressed to the plaintiffs two orders in the following form :-" Messrs. W. Dixon and Co. please to deliver one puncheon of rum, J. B. 7, J. F. 33, bought 13th of August 1831. A. W. Collard." The plaintiffs gave corresponding orders upon Yates, and the two puncheons were delivered to a purchaser from Collard. These two puncheons were part of the 46 sold to [316] Collard on the 13th of August, and the delivery order for the two puncheons was produced from the possession of Collard's assignees. At the trial the remaining 44 puncheons sold to Collard on the 13th of August were the subject-matter of the issue. On the 16th of November 1831, the first of the two bills accepted by Collard ior the 46 puncheons became due in London, and was dishonoured. It was returned to and taken up by the plaintiffs on the 19th of November; and the other bill was also dishonoured when at maturity, and taken up by the plaintiffs. Collard's insolvency was generally known at Liverpool about the 12th or 14th of November. On the 18th of November 1831, the plaintiffs gave notice to the defendant Yates not to deliver the rum to any person but themselves. On the 19th they made a verbal demand, and on the 21st, a written demand, of the rum, which Yates refused to deliver. The plaintiffs had had dealings with Yates often before, for some years back, and had bought of him large quantities of rum, which they left in his cellars; and when they effected re-sales, they gave delivery orders to the purchasers, and Yates had not delivered any of such rums bought on former occasions by the plaintiffs without delivery orders from them. Yates was not in the habit of accepting general delivery orders; but when the plaintiffs bought of him goods lying in bond, they got orders accepted when they wanted them out. In the mean time, the plaintiffs looked after the casks, sampled them, and coopered them, as occasion required. The plaintiffs did not get a delivery order accepted for either of the parcels bought by them on the 28th of June and the 13th of August 1831, but resold a part of each parcel to Collard [317] on the day of the purchase; to which re-sale the want of a delivery order was no impediment. The rums which the plaintiffs bought on the 28th of June and 13th of August were sampled on the quay when landed, and the samples taken to Yate's sale room. The plaintiffs received the samples of those which they did not sell to Collard, but not of those which they did. Collard kept the remainder at Yate's. It is the custom for purchasers of rum always to take the samples, and to cooper the casks. Collard, soon after the purchase, had the puncheons which he bought coopered in Yate's warehouse, and marked with the letter C. The plaintiffs never touched those puncheons, or sampled them, but left Collard to look after them until the 2.1st of November, when they had them sampled. On the 28th of October, after the negotiation of the bills given by Collard, and before they had arrived at maturity, Collard sold 26 puncheons, part of the...
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