allowed him to cooper, in order that he might go into the market and obtain purchasers; and, if he failed in that, they intended to reserve to themselves the power of coming on Yates, by keeping back the delivery orders. They never informed Yates of the applications made by Collard to them for such orders, even after the 5th of October, when the first bill was dishonoured. The right of stoppage ought to have been exercised within a reasonable time after they were aware of Collard's insolvent situation: Green v. Haythorne (a). But if the plaintiffs are entitled to recover any portion, then Yates's co-defendants ought, as to so much, to be barred of their claims against him. They were guilty of negligence, at least, in not inquiring into Collard's title to the rums. The circumstances ought to have excited their suspicion, and they should have made inquiries of Yates, and of the custom-house officer who superintended the bonded warehouse, and who, by 6 G. 4. c. 112. s. 9., is bound to keep a transfer-book, open to the public. After dealing with Collard as a principal, they have no right to fall back on Yates, who is to be considered, as far as they are concerned, as unconnected with Collard. Bond and Proctor merely received the samples which the plaintiffs had left in Collard's possession, and which the latter had kept concealed from Yates. If the taking of samples, the marking, &c., are not to be considered as amounting to a delivery, and barring the right of stoppage in transitu, then neither of the co-defendants ever obtained the possession, and it is clear that they never acquired the reputed ownership: Knowles v. Horsfall (b). 1833. DIXON against YATES. (a) 1 Stark. 447. (6) 5 B. & 4. 154. Z 4 DENMAN 1833. DIXON against YATES. DENMAN C. J. In this case it appears that the plaintiffs purchased 46 puncheons of rum lying in the warehouse of the defendant Yates, and paid for them, and thus became the owners. They sold a part of the rum to Collard, a clerk in the service of Yates, and he paid for that part by bills, which were afterwards, but before the plaintiffs had demanded possession of the rum, dishonoured. The right of property and possession thereby revested in the plaintiffs, unless something had been done in the interval to divest them of their right of possession. While the bills were running, Collard had the power to take the rum into his possession, and to dispose of and sell it, but he did not exercise that power by any sufficient means. invariable mode of delivering goods sold while in warehouses in Liverpool, is found to be by the vendors handing to the vendees delivery orders; and here Collard obtained no delivery orders except for two puncheons. It is said that the delivery of a part operates in law as a constructive delivery of the whole; but that is so only where the delivery of part is intended to be a delivery of the whole. Here that was not so; for the plaintiff's, by refusing to deliver more than the two puncheons, gave notice to Collard that they meant to retain the possession of the rest. The The taking of samples and coopering are circumstances from which a jury might infer an actual delivery of the whole; but that is not found as a fact in the case, and I think the circumstances do not make it incumbent on the Court to say there was such a delivery of the whole. If I had been on the jury, I should have found that there was no such actual delivery. It has been contended that the plaintiffs, after having received notice of the dishonour of the bills by Collard, were bound to take some step to enforce their lien; but it seems to me that nothing short of an actual delivery could divest a vendor of the right to stop in transitu, which is admitted to be analogous to the right of retaining. That being so, Yates, then, is not able to set up as against the plaintiffs the act of any third party, and therefore is not entitled to retain the possession of the rum. It has been said that the plaintiffs cannot recover, because they have given Collard the means of going into the market with an apparent title to the property: the answer to that is, he had not that evidence of a transfer to him, without which any purchaser's title would have been imperfect. Under all the circumstances, I think the right of property and possession as to the 44 puncheons remained in the plaintiffs, and that they are entitled to recover. LITTLEDALE J. I think the property and right to the possession of the 44 puncheons of rum are in the plaintiffs. They sold to Collard a parcel of goods in June, and another parcel in August. The first parcel was paid for by two bills of exchange, which were dishonoured, and taken up by the plaintiffs to save their own credit; and those goods not having been paid for by Collard, he has clearly no right of property in them. As to the second parcel; Collard became insolvent in November; the bills given by him for the goods were dishonoured. The plaintiffs, therefore (unless something had been done to prevent it, in the interval between the purchase by Collard and the dishonour of his bills), might resume possession and prevent the delivery. 1833. DIXON against YATES. The 1833. DIXON against YATES. The only question is, whether, in the interval, any thing of that nature was done by Collard. The invariable mode of delivering goods sold while they are lying in warehouses at Liverpool, is by the vendor handing delivery orders to the vendee. The plaintiffs had not given to Collard orders for the rum in question, therefore there had not been a delivery to him in the usual mode. Had he, then, acquired the possession (as he undoubtedly might) in any other way? An invoice was delivered. In the case of any sale of goods, the common course is for the vendor to deliver to the vendee an invoice, but that does not vest the actual possession of the goods in the vendee. The delivering of the invoice, therefore, did not give Collard any colourable title. Then, after receiving the invoice, Collard coopered and marked the casks. The coopering was an act which might be done in order to ascertain that the casks were in proper order. The marking of the casks with his initials is an act which looks much more like taking possession. But Collard knew at the time that he had no delivery order. He was a clerk to Yates, and had the management of his cellar, and full power to mark and gauge the casks as he pleased. If that act had been done with the approbation of Yates, the latter knowing that Collard had bought the rum, it might have been sufficient to vest the actual possession in the latter. But that was not so. It seems, therefore, to me that Collard had not done sufficient to take the possession: and then, the bills having been dishonoured on the 1st of September, the plaintiffs were entitled to retain. It remains to be considered whether the fact of Collard having sold part of the rums to Kaye, and to Bond and and Proctor, and the acts done by them, make any difference. It is a general principle of law, that a man who has not the property and right of possession in goods cannot transfer them to a vendee; and, therefore, if the original vendor chooses to retain or stop in transitu, a second vendee is in no better situation than the first. Then it is said there was a part delivery here, and that that, in point of law, operated as a constructive delivery of the whole. But that rule is confined to cases where the delivery of part is intended to be a delivery of the whole: Bunney v. Poyntz (a), Simmons v. Swift (b). On the contrary, there was in this case an express refusal to deliver the whole. There are two general principles of law which must decide the present case; the one is, that so long as goods sold and unpaid for remain in the immediate possession of the vendor, he may refuse to deliver them; and if they remain in the possession of his agent, i. e. a warehouseman or carrier, he may stop them. The other is, that a second vendee of a chattel cannot stand in a better situation than his vendor. No doubtful The question PARKE J. I am of the same opinion. (a) 4 B. & Ad. 568.; not reported when this case was argued. rum 1833. DIXON against YATES. |