Van Casteel and Others v Booker and Others
| Jurisdiction | England & Wales |
| Judgment Date | 11 July 1848 |
| Date | 11 July 1848 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 668
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 18 L. J. Ex. 9. Applied, Jenkyns v. Brown, 1849, 14 Q. B. 496, Turner v. Liverpool Docks Trustees, 1851, 6 Ex. 543, Schotsmans v. Lancashire and Yorkshire Railway, 1867, L. R. 2 Ch. Ap. 336, Ogg v. Shuter, 1875, L. R. 10 C. P. 165 reversed, 1 C. P. D. 47. Distinguished, Berndtson v. Strang, 1867, L. R. 4 Eq. 489. Referred to, Gubarrow v. Kreeft, 1875, L. R. 10 Ex. 281. Approved, Colonial Insurance Company of New Zealand v. Adelaide Marine Insurance Company, 1886, 12 A. C. 139.
[691] van casthel and others v booker and others July 11, 1848 - L, 5 , & Co , the coi respondents at Rio of B & Co , merchants at Liveipool, purchased a quantity of coffee, on then own ciedit pimcipally, but in pait with funds supplied by B & Co For the amount of the purchase on their credit, L , S , 6 Co drew bills on B & Co , and the coffee they shipped on board a vessel of B & Co , bound for " Coik intl a maiket " An invoice was made out, stating the coffee to be shipped by ordei and on account and nsk of B &i Co , but L , S , & Co procured the captain to sign hills of lading, making the coffee deliverable to their ordei or assigns, "fieight fiee" One of these bills they indorsed in blank, and transmitted by post to B & Co on the '2lat of September At the end of September, A W , the agent in England of L , S , As Co , asked the principal partner in the firm of B & Co to cause the bill of lading to be placed in third hands, to secuie the bills drawn on account of the purchase, to which he agreed, and on the 16th of Octobet gave a written ordet to that effect On the 12th of November, which was after B & Co had committed an act of bankruptcy, the bill of lading artivcd, and was, in puisuance of the above-mentioned agiee- ment, delivered to A W foi the above-mentioned purpose, who, after the fiat, pledged it for a laige advance with the plaintiffs, merchants at Rotterdam The cargo having afterwards arrived, the assignees got possession of it, and trovei was brought by the plamtiHs, as indorsees of the bill of lading - Held, that though the contract was puma facie made on behalf of the vendors, it was a question for the jury, looking at the foim of the bill of lading and language of the invoice, &c , whether the goods weie not leally delivered on board, to be carried for and on account and at the risk of the bankrupts , and if they were, the right of stoppage in tiansitu, and also the power of rescinding by the bank rupts, so as to defeat the rights of then creditors, were both at an end, but if the juiy should think, from the form of the bill of lading, that it was intended to preserve the rights of the unpaid vendors until some fuither act was done, by transferring the bill of lading, the light to stop the goods in transitu, and also the power of rescinding, would continue until the bill of lading, indorsed, reached the hands of the bankrupt , in which latter case it was competent tor them to give the unpaid vendors a lien on the whole for the part not paid - Held, also, that the plaintiffs had no title under the Factors Acts, inasmuch as they were nob intrusted with the hill of lading as agents, by the true owners, but claimed to hold m their own right - Also, that, in ordei to tender a preference on the eve of bankruptcy valid, it is riot necessary that there should be a threat or pressure, with an immediate power of lendermg it available by taking legal steps To defeat a payment or transfer made to a creditor, the assignees; must shew it to be fraudulent as against the body of creditors, by proving it to be voluntary on the part of the bankrupt, and in contemplation of his bankruptcy , and if it is made in consequence of the act of the creditor, it is not voluntary [S C 18 L J Ex 9 Applied, Jew^ts v B-imui, 1849, 14 Q B 496, Timwt v Liverpool Docks Ttiwteei, 1851, 6 Ex 54.J , tiihotunam, v Lancashiie and Yotk^hue Railway, 1867, L R 2 Ch Ap J3G , f% v Mutn, 1875, L R 10 C P 165 reversed, 1 C P D 47 Distinguished, BenuUsmv titrang, 1867, L R 4 Eq 489 Referred to, Gabatrow v Kietft, 1875, L R 10 Ex 281 Approved, Colonial Insurance Company of New Zealand v Adelaide Marine Int uiunce Company, 1886, 12 A C. 139 J Trover for coffee Pleas, not guilty, and not possessed 2SX.893. VAN CASTEEL V. BOOKER 669" At the trial, before Rolfe, B., at the Liverpool Spring Assizes, 1848, it appeared that the defendants were the assignees of Barton, Irlam, & Higginson, of Liverpool, who had become bankrupt, and that the plaintiffs, who were merchants at .Rotterdam, claimed the coffee in question, which was the cargo of the ship " Vigilant," as indorsees for value of the bill of lading, from A. W. Lyon, of Liverpool. A. W. Lyon traded a a commission merchant; he was correspondent of and agent for the house of Lyon, Schwind, & Co., at Rio de Janeiro, and was a partner in that house. In the month of September, 1847, Barton, Irlam, & [692] Higginson sent two vessels, the " Alice" and the " Vigilant," of which they were owners, to Rio de Janeiro for cargoes to be shipped by Lyon, Schwind, & Co., on account of Barton, Irlam, & Higginson. The " Vigilant " Was laden with coals belonging to Barton, Irlara, fe Higgizison, and consigned to Lyon, Schwind, & Co., who advanced the disbursements for the ship, sold the coals, and received the price. Partly with this money, but principally on their own credit, they procured 5Q90 bags of coffee, which they shipped on board the " Vigilant," and took from the master bills of lading dated the 21st September, 1847, at Rio de Janeiro, for 5090 bags of coffee, shipped by Lyon, Schwind, & Co. of Janeiro, on board the '' Vigilant," bound " for Cork and a market," deliverable " to order or assigns, he or they paying freight free." The word " free " was in writing-the words " he or they paying freight," were in a printed form. An invoice was made out, stating the coffee to have been shipped by Lyon, Schwind, & Co. of Rio, on board the " Vigilant," bound for Cork and a market, " by order and for the account and risk of Barton, Irlam, & Higginson." On the back of this invoice, Lyon, Sehwind, & Co. made out an account Current between themselves and Barton, Irlam, & Higginson, in which they took credit for the amount of the disbursements for the ship, and the invoice price of the coffee, and debited themselves with the proceeds of the coals, and the amount of two bills drawn for the balance upon Barton, Irlam, & Higginson. One of these drafts was E yable to the order of A. W. Lyon, the other to the order of Carruthers & Co.; and th were expressed to be " for value in account, which place to the account of coffee, per ' Vigilant,' as advised by Lyon, Schwind, & Co." Lyon, Schwind, & Co. indorsed one part of the bill of lading in blank, and on the 24th September sent it so indorsed, together with the invoice and account current, by post, in a letter addressed to Barton, Irlam, & Higginson. [693] The principal partner in the firm of Barton, Irlam, & Higginson was Jonathan iHigginsonj who resided at Liverpool, and managed the business of the house there. The firm, which had been established matiy years, and had traded to an immense extent, from time to time obtained advances from their bankers, the Royal Bank of ^Liverpool. In the beginning of the year 1847, the balance due to the Royal Bank iamounted to nearly half a million ; and the manager and directors becoming alarmed, {pressed J. Higginson for security, or that he should reduce the balance. Some angry (discussions having in consequence taken place, on the 23rd of September the directors of the Royal Bank passed a formal resolution, that, unless the balance then due to the Bank, amounting to 460,0001. and upwards, was secured or paid, proceedings rshould be taken against the sureties of Messrs. Barton, Irlam, & Higginson ; and they forwarded a copy of this resolution to J. Higginson. The resolution was intended to be strictly secret, but by a private channel it became known to A. W. Lyon about the end of September. He in consequence sent to the office of J. Higginson a note, of which no copy was kept, and which could not be found amongst the bankrupt's papers. J. Higginson, who was at that time absent :from Liverpool, wrote in answer, requesting A. W. Lyon to visit him at his shooting ; lodge, at Huyton. On the 7th of October A. W. Lyon went there, and one Parsons, the managing clerk of Barton, Irlam, & Higginson was also there. On the 8th, some ' conversation took place between J. Higginaon and A. W. Lyon, in the presence of i Parsons, the nature and effect of...
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