Patten and Others against Thompson
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1816 |
| Date | 12 November 1816 |
| Court | Court of the King's Bench |
English Reports Citation: 105 E.R. 1079
IN THE COURT OF KING'S BENCH.
patten and others against thompson. Tuesday, November 12th, 1816. The unpaid vendor may stop in transitu before the goods come to the hands of the vendee's factor, although the factor has the bill of lading, indorsed to order, in his hands, and is under acceptance to the vendee on a general account; wherefore, in such case, where the vendee became bankrupt, and the factor also became bankrupt, and the messenger under the factor's commission, upon the arrival of the ship, went on board, and seized the cargo, the agent of the vendor having previously given notice to the captain to deliver the cargo to him, and the captain having agreed thereto: Held, that trover would lie by the vendor against the assignee of the bankrupt factor. Trover for 108 tons of wheat. Plea, not guilty. At the trial, before Le Blanc. J., at the Lancaster Lent Assizes, 1815, there was a verdict for the plaintiffs, damages 30001., subject to the opinion of the Court, upon a case, which stated, that the plaintiffs were merchants at Westport, in Ireland, that Hickman and Co. were merchants at Dublin, and that the defendant was the provisional assignee of Hodgson and Co., bankrupts, who were merchants at Liverpool. On the 28th May, 1814, the plaintiffs wrote to Hickman and Co., informing them that they had that day commenced loading the brig " Amlwch," of Beaumaris, Owen master,/with wheat, and of which they made them an offer, " say about 100 tons our best wheat, kiln dried, screened, and free on board, at 34s. 6d. per barrel, of [351] 20 stone, payable by our bill on yourselves, at three months' date, from the date of bill of lading." On the 30th May, Hickman and Co. wrote to the plaintiffs in answer, accepting the offer, and requesting to be advised in time, to have an insurance effected. On the 6th June, the plaintiffs inclosed to them the invoice and bill of lading for 108 tons, and drew upon them for the price, by three bills to their order, amounting to 15021. Os. 4d., which Hickman and Co. returned on the 8tb, accepted. The case then set forth a series of letters between Hickman and Co. and Hodgson and Co., as follows. 1080 PATTEN V. THOMPSON 5M.&S.352. "Hickman and Co. to Hodgson and Co., 30th May, 1814. You have inclosed a bill of lading for 560 barrels of wheat, shipped on board the 'Content', Captain Wilson. You will please make the necessary insurance. You will also effect insurance on 100 tons of wheat, shipped at Westport, on board the brig 'Amlweh,' of Beaumaris, J. Owen master: this vessel is now in port, and ready for sailing." " Hodgson and Co. to Hickman and Co., 4th June. The bill of lading, per ' Content,' is received, and the insurance effected on wheat, per ' Amlweh,' from Westport, particular of which is annexed. The two bills inclosed in yours of the 1st instant, amounting to 25841. 5s. 6d. are to your credit, and the three drafts advised of, together 15501., shall meet due honour." " Hickman and Co. to Hodgson and Co., 6th June. Inclosed you will receive, Atkinson and Co. on C. and S. Hays, 2001.; E. Banfield on F. Banfield, 5001.; our draft on A. Atkins, 8761. 4s., which please put to our credit. We have valued on you to [352] "Hugne, Beauman, and Co. . ... . 500 Thomas Abbott, in three bills, . . . . . 1200 Samuel Matthews . . . . . . 200 John Tomlinson . . . . . . 400 Denis Mulan . . . . . .40 Lyndon, Bolton, and Co. . . . . . 1000 "to which please shew honour." " Hodgson and Co. to Hickman and Co., 10th June. We wrote to you on the 8th, and are since favoured with yours of the 6th instant, inclosing three drafts, amounting together to 15761. 4s., which we placed to your credit. Your six drafts, together 33401., shall meet due honour, according to your advices. Inclosed are account sales of wheat per 'Fanny,' the net proceeds, 12451. 191. 3d., are to your credit, as are also your sales per 'Clyde,' amounting to 10801. 3s. 10d., herein bancled you." " Hickman and Co. to Hodgson and Co., 8th June. We inclose three bills, amounting to 15811. 7s. 6d., to the debit of your account: you have also inclosed a bill of lading for 804 barrels of wheat shipped at Westport, on board the ' Amlweh.' There is no fresh corn coming to market all over the kingdom^ the growing crops of both oats and wheat look very badly, particularly the former. Since our last advices we valued on you as follows; viz. in three drafts, to "N. Mahon . . . . . 7000 0 0 J. Hills . . . . . 182 9 10 Williamson and Co. . . . . 2000 0 0" [353] "Hodgson and Co. to Hiekman and Co., llth June. We are favoured with yours of the 8th instant, inclosing three bills, 15811. 7s. 6d., which are placed to your credit: it also inclosed bill of lading for wheat, per ' Amlweh,' which shall have our best attention on arrival. Your three drafts for 28821. 9s. lOd. shall meet due honour." On the 2d June, Hodgson and Co. effected an insurance in their own names, on the wheat in question, for 13001., in pursuance of the letter to them of the 30th May, and on the 8th June the " Amlweh" sailed for Liverpool, with the wheat on board. By the bill of lading the wheat was made deliverable at Liverpool, to Hickman and Co. or assigns, and it was indorsed by them, to be delivered to Hodgson and Co., or order. On the 15th of June Hickman and Co. advised the plaintiffs, that, in consequence of several extensive failures in which they were involved, they found it impossible to make good their engagements. A circular letter to the same effect was at the same time sent by Hiekman and Co., to their principal creditors and correspondents. Hickman and Co. stopped payment on or about the 15th June, and continued insolvent until their bankruptcy, which took place shortly after. On the 21st June a commission of bankruptcy issued against Hodgson and Co. The several bills drawn by Hickman and Co. on Hodgson and Co. were accepted by the latter, and have been proved under their commission. The plaintiffs, on receipt of Hickman and Co.'s letter of the 15th June, immediately sent one of their clerks to Liverpool with one of the bills of lading, and with a power of attorney, authorizing their agent there to stop the goods in transitu. The clerk arrived at Liverpool on 5M. &S. 354. PATTEN V. THOMPSON 1081 the 20th June, and found the " Amlwch," which had arrived two days [354] before him, lying with the wheat on board, in the Mersey. On the same day she came into George's Dock basin, Liverpool, and in the afternoon the under warehouseman of Hodgson and Co. went on board for the purpose of taking a sample, but was refused by the mate, (the captain not being then on board, and having left express orders with the mate that the hatchways...
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