John Thomas Edward Flint v Thomas Walker and Archibald Walker
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1845 |
| Date | 1845 |
| Year | 1845 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 454
ON APPEAL FROM THE SUPREMEN COURT OF JUDICATURE AT BOMBAY.
Mews' Dig. tit. Sale of Goods; G. Rights of Unpaid Vendor; 2. Stoppage in Transitu; e. ii. Delivery to Carrier; tit. Shipping A. XVI.; Stoppage in Tranitu; 6. Transitus at an end. S.C. 3 Moo.; Ind. App. 422. On point (i) as to stoppage in transitu, considered in Schotsmans v. Lancashire and Yorkshire Ry. 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 Contrace Act, (Act ix. of 1872), ss 99-106; (ii.) mate's receipts, see Hathesing v. Laing, 1873, L.R. 17 Eq. 92; Factor's Act, 1889 (52 and 53 Vict. c. 45), s. 1 (4); (iii.) as to "Free on board" (5 Moo. P.C. 173) 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.
V MOORE, 165 COWAS-JEE V. THOMPSON [1845] [165] ON APPEAL FROM THE SUPREME COURT OF JUDICATURE AT BOMBAY. FRAM-JEE COWAS-JEE,-Appellant; WILLIAM THOMPSON and HENRY KEBBEL,-Respondents * [June 20 and 21, 1845]. Goods contracted to be sold and delivered " free on board," to be paid for 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 apprised 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 hill 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 Respon-[166]-dents were the Plaintiffs, and the Appellant was the Defendant. The Respondents, during the time to which the 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 [167] received f rom 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 Respondents' lighterman, who handed in 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 Respondents. It was * Present: Members of the Judicial Committee-Lord Brougham, the Vice-Chancellor Knight Bruce, the Vice-Chancellor Wigram, and the Right Hon. T. Pemberton Leigh. Privy Councillors: Assessors-Sir E. H. East, Bart., Sir A. Johnston, Knt., and Sir E. Ryan, Knt. 454 COWAS-JEE V. THOMPSON [1845] V MOORE, 168 also proved on behalf of the Respondents, that the firm of Messrs. Boggs, Taylor, and Co. (who were the real shippers of the lead) became insolvent, and stopped payment on the 18th of December 1841; that on the 20th and 29th of December 1841, whilst the Buckinghamshire still lay in the East India Docks, with the lead on board, possession of the lead was duly demanded on behalf of the Respondents, with an offer to pay all freight due upon it, and all other reasonable charges attending the re-delivering of it, which offer was refused on behalf of the Appellant, and that a certain bill of exchange for 1218 Os. Sd., which had been accepted by Messrs. Boggs, Taylor, and Co., on account of the lead in question, remained in the hands of the Respondents unpaid, having been dishonoured by Messrs. Boggs, Taylor, and Co. when it fell due. The case of the Appellant was, that on the 30th of October 1841, the Respondents contracted to sell to Messrs. Boggs, Taylor, and Co. 100 tons of British pig lead, " free on board, at 20 per ton, 6 months' accept-[168]-ance," " or 2J per Cent, discount, for cash," at the option of Messrs. Boggs, Taylor, and Co., and that the lead in question was shipped in pursuance of that contract. That on the 2nd of November 1841, Messrs. Boggs, Taylor, and Co. addressed a letter to Messrs. Daniel Dickenson and Co., requesting them to insure the lead in question, and to accept two bills of exchange, drawn on them by Messrs. Boggs, Taylor, and Co. for 1500 each, dated respectively the 29th of October 1841, and the 1st of November 1841, payable respectively six months after date, on the faith of Messrs. Boggs, Taylor, and Co. placing*in their hands the lead in question, or the bills of lading relating thereto, with other lead arid with copper of the value of 2000, which bills of exchange were accepted by Messrs. Daniel Dickenson and Co., on the 2nd of November 1841, and long before the shipment of the lead by the Respondents, and were handed over by them to Messrs. Boggs, Taylor, and Co., and paid when due. That the policies of insurance were effected, and that Messrs. Bogg-s, Taylor, and Co. were debited by Messrs. Daniel Dickenson and Co. with costs of such insurance. That on the 16th of November 1841, the captain of the BucMngJiamshire, without requiring the delivery to him of the receipts for the lead in question, before referred to, signed four bills of lading of the lead in question, dated the 15th of November 1841, prepared by Messrs. Boggs, Taylor, and Co., describing it as shipped by Messrs. Boggs, Taylor, and Co., and to be delivered to Messrs. B. and A. Hormajee, or to their assigns, which bills of lading were afterwards endorsed by Messrs. Boggs, Taylor, and Co., in blank, and delivered by them to Messrs. Daniel Dickenson and Co. [169] That on the 26th of November 1841, Messrs. Boggs, Taylor, and Co., declining to pay for the lead in cash, accepted the dishonoured bill of exchange for 1218 Os. Sd. before mentioned, which was dated the 12th of November 1841, being the date of the shipment, and was drawn on them by the Respondents, and was accepted by Messrs. Boggs, Taylor, and Co., on account of the lead in question, and made payable six months after date. The Appellant also proved that, according to the usage and custom of merchants in London, where goods are sold to be delivered free on board a ship, it is part of the seller's duty, under the contract, to ship them, but that in such cases the buyer, at whose risk they are from the time of shipment, is considered to be the shipper - that where goods are sold on a contract, to be delivered free on board, to be paid for by bill, and are shipped on board, and a bill given, pursuant to the terms of the contract, it is the seller's duty, on receipt of the bill, to deliver up the mate's receipt (if any), to the buyer, and that the seller's retention of the mate's receipt, after such bill given and received by the seller, would give the seller no claim against the ship-owner or the broker, or the goods, and maintained that the possession by the Respondents, of the receipts for the lead, did not affect their property in it. The Court, after considering the evidence, found that the pigs of lead were the property of the Respondents, as they alleged in their declaration, and thereupon judgment was given for the Respondents, from which the Appellant appealed. Mr. F. Kelly, Q.C., Mr. S. Wortley, Q.C., and Sir John Bayley, for the Appellants.-[170] In this case, your Lordships sit as a jury as well as judges; you have to find a verdict upon the facts contained in the evidence taken under the Commission.-[Lord Brougham: We try all the Court below tried; we are not a Court of Error.]-The question to be decided is this; whether there was a complete and perfect delivery when the lead was put on board. If so, the trcunsitus was at an end. 455 V MOORE, 171 COWAS-JEE V. THOMPSON [1845] If it was not, the legal possession was...
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