1824.

HAWES

ช.

WATSON.

ledgment to the persons who had bought the goods and paid for them, that they had transferred them to their account, and those persons were made subject to charges from a certain period. I think, therefore, that they held them as the property of the plaintiffs, although there was not an actual weighing of them; that they were in the possession of the plaintiffs by means of the defendants, the wharfingers, they having given them the note stating that they were transferred to them in their books; and that the plaintiffs consequently were entitled to recover them.

BEST, J.-I think, with my brother Holroyd, that the paper which was given in evidence puts an end to the question, if there was any question, in this case; but it is also set at rest by a case which is not merely a nisi prius decision, but which also received the sanction of the whole Court; I mean that of Harman v. Anderson (a), which is precisely the same as the present. Lord Ellenborough, in that case, when sitting at nisi prius, said, "the goods having been transferred into the name of the purchaser, it would shake the established principles still to allow a stoppage in transitu; from the moment the defendants became trustees for the purchaser, there was an executed delivery, as much as if the goods had been delivered into his own hands. The payment of rent in these cases is a circumstance to show on whose account the goods are held; but it is immaterial here; the transfer in the books being in itself decisive. I am clearly of opinion, that the assignees are entitled to recover." In the ensuing Term, the Attorney-General, afterwards Lord Chief Justice Gibbs, expressed his acquiescence in the direction of the judge at nisi prius, but moved to reduce the damages, on an affidavit stating that, as to one parcel of the butters, no transfer had been made in the defendant's books to the bankrupt before the bankruptcy, and that, as to that, the right of stopping in transitu therefore still subsisted when the vendor interfered. (a) 2 Camp. 243.

any

That, therefore, cannot be considered as a mere nisi prius decision; it is one which received the sanction of one of the most distinguished lawyers in Westminster Hall, when moving for a new trial, and which was sanctioned by the whole Court. But it seems to me, if we consider the principle on which the right of stoppage in transitu is founded, it cannot be extended to such a case as this; if it could, it would destroy that commerce which is now carried on through the instrumentality of dock orders. The vendee has a right to the goods the moment the contract is made and executed; but there exists in the vendor an equitable right which he may exercise at time before the goods actually pass into the possession of the vendee, provided the exercise of that right does not disturb the rights of third persons. Now it appears to me impossible that it can be exercised in this case, without disturbing the rights of third persons, for the goods have not only been transferred in the books of the wharfingers, but there has been an acknowledgment by them that they hold them for the purchaser. It is said there has been no change of property here; if there has not, I do not see how there can be, until the tallow is actually melted down, and converted into candles. If that were so, then till the very time when it is brought into use, though it may have passed through a hundred hands, and been paid for by all, still, if it has never been weighed, the vendor, if he has not been fully paid, has a right to stop it in transitu. I think we should overturn an established principle, and a necessarily just principle, if we held that he had such a right in a case like this. He cannot exercise that right, except where the rights of third persons are not disturbed. It was originally an equitable right, and was so considered, and it is still, and ought to be considered as an equitable principle.

Rule refused.

1824.

HAWES

V.

WATSON.

1824.

Wednesday, January 28. Where the

PUGH V. EMERY.

D. F. JONES moved for an attachment against the Shesheriff, to avoid riff of Middlesex for not bringing in the body of the defend

an attachment

ing in the body, gave the plaintiff notice of putting in bail, but in

for not bring- ant, pursuant to a rule obtained for that purpose, upon an affidavit stating that the sheriff had given notice of putting in bail, but that the notice did not set forth the names of the bail, or that they had been perfected. This he contended was an irregularity, and therefore the notice of bail might state the names be treated as a nullity, and the plaintiff was entitled to his remedy against the sheriff, the same as if no notice of bail had been given.

the notice he omitted to

of the pro

posed bail: Held that the notice could not be treated as a nullity entitling the plaintiff to

move for an attachment.

BAYLEY, J. (a) The sheriff certainly has not been quite correct in the form of his proceeding, but I think it would be rather too much to grant an attachment against him, under such circumstances.

(a) The only judge in court.

Rule refused.

Thursday, January 29.

MOODY V. KING and PORTER.

Where A. and B. ASSUMPSIT for money lent, with the other money

had dissolved partnership, and two days

afterwards A.

drew a bill in

the names of the partnership, which was accepted and paid by C.

counts. Plea, by the defendant King, non assumpsit, and issue thereon; by the defendant Porter; bankruptcy and certificate, and a nolle prosequi entered as to him. At the trial, before Abbott, C. J. at the adjourned Middlesex sittings after last term, the case was this:-On 16th July, 1821, plaintiff accepted an accommodation bill without consifor 481. 17s. 3d. drawn in the names of the defendants, deration; and C. afterwards brought assumpsit against A. and B. for money lent: Held that A. who had become bankrupt and obtained his certificate was a competent witness for B. to prove that the acceptance was for his (A.'s) own sole accommodation, inasmuch as B. was merely a surety within the meaning of the 49 G. 3. c. 121. s. 8. and might have proved under A.'s commission.

which he afterwards paid on their account. On the 14th of the same month the defendants executed an agreement for the dissolution of their partnership, by which the partnership was to be considered as dissolved from the 29th of May preceding, and the defendant King, in consideration of a sum of money, assigned his share of the partnership effects to the defendant Porter, who covenanted to indemnify him against all partnership debts. Notice of the dissolution was not inserted in the London Gazette until the 17th July. In February, 1822, the defendant Porter became a bankrupt, and shortly afterwards the plaintiff applied to the defendant King for payment of the bill, which he declined. The bill had been paid on the 18th July into the banking house of Lubbock and Co. where the defendants had kept cash, and was discounted by them. In answer to this case, it was proposed to call the defendant Porter, who had obtained his certificate, to prove that before his partnership with the defendant King he had frequent accommodation bill transactions with the plaintiff; that on forming the partnership he discontinued them for a time, but afterwards renewed them in his own name; that at the time of executing the deed of dissolution, the 14th July, he had a blank acceptance of the plaintiff's in his possession; that the bill in question was drawn either on the 17th, or 18th July, on his own account solely, and remained in Messrs. Lubbocks' hands till his bankruptcy, when it was taken up by the plaintiff; that when the bill became due, he (Porter) called upon Messrs. Lubbocks and begged time, which they granted; and that upon the plaintiff's communicating to him that he should apply to the defendant King for payment, he told him that " he knew Mr. King was not liable, and therefore it was of no use," that conversation taking place about a month only before his bankruptcy. On the part of the plaintiff it was objected that the defendant Porter was not a competent witness to prove these facts, on the ground that he had an interest in the result of the cause, because if the plaintiff recovered, he would be liable

1824.

MOODY

v.

KING.

1824.

MOODY

V.

KING.

over to Porter for contribution. The Chief Justice overruled the objection, and received the evidence, upon which the plaintiff was nonsuited, with leave to move to enter a verdict for him, if the Court should be of opinion that the evidence was improperly admitted.

Scarlett now moved accordingly, and renewed the objection. The defendants were joint debtors to the plaintiff. King was not a surety for Porter, and therefore his claim upon him could not arise until after the bill was paid. It has been held that where a party lends his name to a bill for the benefit of another, he is surety for the debt of that other, and is within the protection of the 49 Geo. 3. c. 121. s. 8. Exparte Young. (a) But this is not like that case. This was a partnership transaction, and consequently, as King could not prove under Porter's commission until the bill was paid, the certificate was no bar to his claim. Porter therefore remained liable over to King for contribution in the event of a verdict against him, and upon that ground his evidence was clearly inadmissible.

ABBOTT, C. J.-The partnership as between Porter and King was actually dissolved on the 14th July; this bill bears date after that time, and therefore as between Porter and King it could not be a partnership transaction. If King had been obliged to pay the bill he might have had his remedy against Porter, but that would be a remedy for the whole sum in the character of surety, because it was not a partnership transaction between them. The argument is founded upon the supposition that as between King and Porter it was a partnership transaction, which is not the fact. I think that King was a surety for Porter within the meaning of the statute, and might have proved under the commission; but as he did not prove, his claim is barred by the certificate, and there remains no interest in Porter such as to exclude his evidence.

(a) 2 Rose, B. C. 40.