Fram-Jee Cowas-Jee v William Thompson and Henry Kebbel
| Jurisdiction | UK Non-devolved |
| Judgment Date | 18 July 1845 |
| Date | 18 July 1845 |
| Court | Privy Council |
English Reports Citation: 18 E.R. 560
ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT BOMBAY.
Mews' Dig. tit, Sale of Goods, G. Rights of Unpaid Vendors, 2. Stoppage in Transitu, e. ii. Delivery to Carrier; tit. Shipping, A. XVI. Stoppage in Transitu, 6. Transitus at an End. S.C. 5 Moo. P.C. 165. On point (i.) as to stoppage in transitu, considered in Schotsmans v. Lancashire and Yorkshire Railway Co., 1867, L.R, 2 Ch. 339; distinguished in Berndtson v. Strang, 1867, L.R. 4 Eq. 492; and see Sale of Goods Act, 1893 (56 and 57 Vict. c. 71), ss. 39-46; Indian Contract Act (Act ix. of 1872), ss. 99-106; (ii.) mate's receipts, see Hathesing v. Laing, 1873, L.R. 17 Eq. 92; Factors' Act, 1889 (52 and 53 Vict, c. 45), s. 1 (4); (iii.) as to "Free on Board" (5 Moo. Ind. App. 430), see Brown v. Hare, 1858, 27 L.J. Ex. at p. 377; Stock v. Inglis, 1884, 12 Q.B.D. at p. 573; affirmed, 10 A.C. 263.
[422] FRAM-JEE COWAS-JEE,-Appellant; WILLIAM THOMPSON and HENRY KEBBEL,-Respondents * [June 20, 21, 1845.] On appeal from the Supreme Court of Judicature at Bombay. Goods contracted to be sold and delivered " free on board," to be paid ifor by cash or bills, at the option of the purchasers, were delivered on board, and receipts taken from the mate by the lighterman, employed by the sellers, who handed the same over to them. The sellers apprized the purchasers of the delivery, who elected to pay for the goods by a bill, which the sellers having drawn, was duly accepted by the purchasers. The sellers retained the mate's receipts for the goods, but the master signed the bill of lading in the purchasers' names, who, while the bill they accepted was running, became insolvent. In such circumstances, held by the Judicial Committee of the Privy Council (reversing the verdict and judgment of the Supreme Court at Bombay), that trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the sellers; and that the retention of the receipts by the sellers was immaterial, as after their election to be paid by a bill, the receipts of the mate were not essential to the transaction between the seller and purchaser. This was an appeal from a judgment for the Respondents, given on the 25th of November 1844, in an action of trover, on the plea side of the Supreme Court of Judicature at Bombay, in which the .Respondents were the Plaintiffs, and the Appellant was the Defendant. The Respondents, during the time to which the [423] transactions in question relate, were merchants of the City of London, carrying on business in co-partnership as lead and tin plate merchants, under the firm and style of William Thompson and Co. And the Appellant, during the same period, was a merchant and Parsee inhabitant of Bombay, and the sole owner of the ship Buckinghamshire. The declaration was filed on the 23rd of June 1842, and alleged that the Respondents " were possessed as of their own property," of certain pigs of lead therein mentioned, and that the Appellant afterwards converted them to his own use. The Appellant, confessing the conversion, pleaded to the declaration, one plea only, denying that the pigs of lead were the property of the Respondents in manner and form as they had alleged, and thereupon issue was joined. Commissions for the examination of witnesses on behalf of the Appellant and Respondents were issued, and evidence taken in London, under them. On the 25th day of June 1844, the action came on to be tried before the Supreme Court. The case proved on behalf of the Respondents, was, that on the 12th of November 1841, while the ship Buckinghamshire was lying in the East India Docks in the Port of London, in charge of William Stockley, the ship's husband and manager, employed in that capacity on behalf of the Appellant, the Respondents employed their lighterman, to put on board the pigs of lead in question, in two parcels; and he received from the Respondents, with the lead, two forms of receipt, therein set forth, written wholly by their clerk. That on the same day the pigs of lead were duly put on board the Buckinghamshire by the [424] Respondents' lighterman, who handed in * Present: Members of the Judicial Committee,-Lord Brougham, the Vice-Chancellor Knight Bruce, the Vice-Chancellor Wigram, and the Right Hon. T. Pem-berton Leigh. Privy Councillors,-Assessors,-Sir E. H. East, Bart., Sir A. Johnston, Knt., and Sir E. Ryan, Knt. 560 COWAS-JEE V. THOMPSON [1845] III MOORE IND. APP., 426 the forms of receipt for the mate's signature, and that he then duly signed them, and returned them to the lighterman, who, two or three days afterwards, returned them so signed to his employers, the Respondents, and that from that time, and during all the time of the transactions in question, those receipts for the lead were retained by, and had remained in the possession of, the Eespondents. It was also proved on behalf of the Respondents, that the firm of Messrs. Boggs, Taylor and Co. (who were the real shippers of the lead) become insolvent, and stopped...
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