Gilbert Henry Harris... v. Alexander Reid Scott...

V ~ O O R ~ , 367 HARRISON ‘I]. SCOTT [1846]

c

Bankruptcy Act, 1883 (46 and 41 Vict., c. 521, se. 32, 117, 118, 119.

ings by way of feigned issues wese abolished by 8 and 9 Vict., c. 109, s. 19.1

Proceed-

~3571 ON APPEAL FROM THE STTPBEME CQTIRT OF JAMAICA.

~ I L B E E ~ K E ~ E ~ ~ ~ A R ~ I S ~ ~ , T I ~ O ~ f ~ S RIDLEY, and JAMES E A R ~ ~ S ~ ~ , -

Appellants; ~ L ~ X ~ ~ D E ~ REID SCOTT and J ~ R ~ ~ ~ I A ~ ~ E ~ ~ C R A T , -

~ ~ e $ ~ o n ~ e ~ ~ s * [&fay I8 and 19, 18461.

E. and Co., of ~ e w f o u n c ~ ~ ~ n d , by order of Me~rs. D., of Jamaica, s h i p p ~ a

cargo of fish on board a vessel, chartered by %essrs. D., and consigned it, by

Messrs. D.’s rqumt , tu S. snd L.$ Xessrs. D.’s factors, in Janiaha. Messrs.

D. were, at that time, indebted to S. and L. for large advanca made to them;

and, after they had ordered the cargo, they applied to S. and L. for a further

advance, informing them, that they might expect the cargo, and autfiorising

them t o sell it , on their account, and give them credit for the proceeds. 5.

and L. niada the required advance. No agreement was reduced into writing

a:: to the pledge of the cargo. Before the arrival of the vessel, Nessrs D.,

being in insolvent circumstances, informed S. and L. that, in the eircum-

stancw of the firm, they could no^ think of receiving the cargo ; atnd, mi the

arrival of the vemel, Xfessrs. I)., by letter to S. and L., repeated their deter-

mination not to- receive the cargo, and desired them to sell i t ; to render the

sales to them, and to remit the proceeds, after deducting freighti, etc., to a.

and Cu. hhsrs . D. also wrote, to the same effect, to Xessrs. E. and Co., .rvho,

by letter, acquiesced in this ~ e p u ~ i ~ ~ t i o n ( he letter did not arrive in Jamaica

until some niontlrs after the sale). S. and L. offered no objection to Nessrs.

D.’s proposal, and sold the cargo; &hey did not then claim any lien on the

cargo, b~it they afterwards refused tcu accouiit for the proceeds to E. and

Co., claiming a lien on the good, as the factors, and creditors, of Messrs.

D. Held, by the Judicial Committee, upon a Bill of Exceptions to the

Judge’s directions, in an act>ion o€ assumpsit, brought by H. and Go., against

S. and L., that S. and L., havbg sold the cargo, under the direction of Messrs.

D., must be considered as the agents of K. and Co., and that, if they had

originally any lien on the cargo, they had, by tbeir conduct, waived it.

Where there arc questions of law, raised by tha proceedings, in the inferior

Courts in the colonies, this Court will favour an appIication for leaye to

appeal, direct to the Queen in Councill, under the 7 and 8 Vict., e. 69, withoue

resort.ing to the i i ~ ~ e ~ n i ~ i ~ t ~ Court of Appeal in the Colony [ti Moo. P.C. 3701.

This was an action of assunipsit brought by the A~pe~Iaii ts , wlio carried on

business as merchants at Harbour Grace, in n’evfoundland, under .the firm of 13581

Ridley, Harrisoo and Co. ; and a t Liverpool, under the firm of Harrison, Ridley and

Harrison, against the Eespondents, Hessrs. Scott arid Leaycraft, mho were merchants

and commission-agents a t Iiing-j.ton, in Jamaica. The declaration contained counts,

against the Ilefendants, for not nccouriting for the proceeds of a cargo consigned to

them, on behalf of the Plaintiffs, and also for money had and received. The De-

fendants pleaded the general issue. The Plaintiffs, by their action, sought to

recover the sum of &617 15s. Sd., with intercst arising from the sale, being the

net proceeds of a cargo of fish, sold by the ~ e f e a d a ~ t s , after d e ~ u c t ~ n g the sum

of 2 7 5 3 8s. Ild., the Defendants’ charges, from the gross amount of Guch sale.

On the 24th of April 2841, Mwsrs. Plummer, William, and Robert Dewar, mer-

chants, carq7ing on businms a t Xontego Bay, in Jamaica, chartered a vessel, called

the ~~~~~~ RrrigAt, from Bh. George Cragg. for a voyage from Jamaica to Cuba,

aad thence t o Earnburgh, from which place, having discharged her cargo, she was

Present : Lord Langclale, the TTiceChatncellor Knight Brum, the Right Eon.

Dr. Lushiiigton, and the Right Eon. T. Pemberton Leigh.

528

HARMSON 2’. SCO’X’T [18461 V ~OORE, 359

to procwd to Newfoundland. By the ternis of the charter-party, the vessel, on her

arrival a t Newfound-[359]-land, was to receive n full and complete load, as pl’as

there customary, and, being so laden, was to proceed to Kingstoiz; and Messrs. De-vjar

mere to have the privilege of landing p r t , or all, of the cargo there, or a t another

port in the island, and so end the voyage; and Cragg was to be entitled to receive

freight as follows:-On the true delivery of the cargo in Hamburgh, arid on the

delivery of the cargo in Jamaica, $2350, less disbursenients, etc., in Cuba and New-

foundland. Messrs. Dewar, on the 14th of July, in the same year, wrote to the

Ap~el~ants , a t ~ e ~ o u n d l ~ n d , a letter, advising them of the depa.rture of the W i l l k m

Wright from Cuba, and of her destiiiation to ~ewfoi~iidland, and requesting that

they would load her mith a cargo of f i sh for Kingston, consigning it to. tile Rei.

spondents, where the cargo mould be sold, if that market were better Lhan the one

a t Nontego Bay; and they added, ‘‘ for this cargo x-e shall make you a reini t ta~ce

by a s~iipment, provided me get the ressel; failing wlzich, we shall remit your

Liverpool house.”

The William Vright arrised at i”i’ewfound1and in November 1841, and, having

been loaded with the required cargo, she sailed for Janiaica ; the Appella~its advised

Messrs. Dewar, and also the Respondents, of the shipmeat. In thelir letter t o the

former, bearing date the 25th of Noveniber 1841, they stated, “According to your

instructions, we have forwarded, by this opportunity, the bill of lading and invoice

of this shipment, amounting to $21962 17s. Id. Newfoundland currency; rate of

exchange in London a t 60 days, 16c., to Messrs. Scott and Leaycraft, of Jamaica, to

wliom we presume you have given the neoessary i~istruetioiis.” Their letter to the

~ e s p o i i d e ~ ~ t s bore date the prwious ~~~~ day, and in it sh0y said, ‘‘ Our respected

friends, Messrs. W. and R. Devar, of Jamaica, under date of the l&h July last,

directed us to consign to you the cargo of the ~~~~i~~~ VTight , loaded by oursdves,

consisting of dry cod-fish, in casks and boxes, and twenty tierces of salnioii ; herewith

we beg to hand you invoice and bill of lading of the same amount, &1912 17s. 2d.,

and have no doubt they will have given you the rrmessary instructions for the sale

and remittance; you will find the quality of the fish, on inspection, to be exceedingly

good; and, we doubt not, will give satisfaction.”

The ~ ~ s p o ~ d e i ~ t s had been, for some time past, in the habit of making advances

for Messrs. Dewar ; to secure whicli, tlie latter wero accustomed to cause their cargoes

to be consigned t o the house of the Respondents, a t Kingston, for sale. In the rnontb

of September 1841, Messrs. Dewar owed the Respondents a balance of between

two and three thousand pounds; and, wishing to obtain from them a further

advance, it was agreed that Nessrs. De.ir,wr should give acceptances and pay a sum

of 31000, and khat tlie ~ e ~ p o i i d e n t ~ shmld be a t liberty to sell the cargo of tlie

Wifhknz. Wrigh8, when slie arrived at Kingsion, 011 their account, giving them credit

for the proceeds of sale, after deducting the balance. due from them to the

Respondents.

P I u ~ e ~ . Dewar wrota, on the 6th of December 1S41, to Scott, one of the Re-

spondents, a letter, which contained tho following , passage : -“ Cragg wants his

vessel, the Ti?licm Wright, to go to R’orfolk, and wishes you to load her with him

on jointaccount j ire desired me to ask parr ; that vessel is now over-due,

on her arrival, you must do the best with her for us. You can opeii otir letters and

sell aiiy part of our cargo with you. Pay the port charges on account of Mr. Cragg,

which will secure the freight to you, provided the said cargo does not come to us.”

The William R’right arrived at Kingston on the 25th of December 1841, when

the Respondents, by letter of that date, addressed to Messrs. Dewar, advised thern of

the vessel‘s arrival. The Respondents receive the biII of lading and irwoice, and

took possession of the cargo ; but, prior to the vessel’s arrioal, and on the loth of

December 1S41, Messrs. Dewar had become insolvent, aEd stopped business, and had

sent round circulars to their creditors, inforrning then1 of that fact. A t the time

of the insolvency, they were indebted to the Itespondeiits in the amounC of b?twceii

S2000 and 33000. In a c o ~ v e r s ~ t i o n with the ~ e ~ p o n ~ e n t Sco t, a day or two

after tlie arrival of the vesse1, Plunimer Dewar said, that it appeared, from the

books of the firm of Devvar and eo., that they were barely able to meet their engage-

ments, and expressed a Tish that the Respondents would sell the cargo of the

W ~ ~ l ~ ~ FF~igfzt, and remit the proceeds to the Appellants. Xo a r r ~ I i g e m e ~ t of

529

-

V MOORE, 362 HARRISON ‘u. SCOTT [ 18461

any kind was however come to, and, on the 4th of Jaiiuary 1841, Messre. Dewar wrote

the following letter to the Respondents :-

“Dear Sirs,-You have enclosed, a letter for Ridley, Harrison and (TO., which

please forward; we find that we shall owe these gentlemen a balance, and, there-

fore, in our present situation, do not think ourselves warranted in receiving the

William Wright’s cargo. You will, therefore, please sell the same, and render US

sales, remitting the proceeds, after deducting freight, etc., to Harrison, Ridley and

Co., Liverpool.”

[362] The enclosed letter was as follows:-

‘‘ Dear Sirs,-We have your favour by the William Wright, which arrived at

Kingston, after rather a long voyage. We have handed the cargo to our mutual

friends, Messrs. Scott and Leaycraft, to sell on your account, and remit the pro-

ceeds, as early as possible, to your Liverpool house, as, from many heavy losses, by

shipments and bad debts made here, we have been compelled to suspend our opera-

tions, but trust soon to be able to commence again; should this, however, not be

the case, you may rest assured the best shall be done for your interest. In the pre-

sent state of our affairs, we leave you to do the best for us concerning the Fanay’s

freight, and remain, yours truly, W. and R. Dewar and Co.”

“ Montego Bay, 4th January 1842.

‘

To this letter, the Respondents returned the following answer :-

“ Kingston, 8th January 1842.

“Dear Sirs,-We are in receipt of your favour of the 4th inst., with the en-

The Respondents also addressed the following letters to the Appellants :-

closures alluded to, and which will be duly attended to.”

“ Per Clifford, Kingston, Jamaica, 22nd Jan. 1842.

“Gentlemen,-On the 27th ult. we received, per brig William Wright, your

favours of the 24th and 25th of November; we regret to say that vessel arrived to

a miserable market, but landed her cargo in good order. Having now received the

amount of bottomry bond, we shall remit it, as you direct, to your friends in Liver-

pool. We have only time, by this conveyance, to refer t o the annexed review of

our market, which will show you its deplorable state for your exports.”

P631

“ Gentlemen,-We hand you herein duplicate of what we addressed to you on the

22nd ult., and annexed account current, showing our having remitted to your Liver-

pool friends 2145 3s. currency, on account of your bottomry claim on the brig

William Wright. We beg reference t o the accompanying review of this date, as

correctly representing the state of our market, and from which you will see how vciy

low our prices rule f o r your exports, and we see little prospect of improvement

soon, as several cargoes are now due from Halifax.”

Messrs. Dewar, on the 17th of February 1842, delivered up their assets, for the

benefit of their creditors, and provisional assignees of the estate and effects were

appointed, but the cargo of the William Wright was not included therein.

The Respondents sold the cargo of the William Wright for the sum of S1431

4s. 7d. The costs and charges of+,he sale aniounted to Z753 8s. l ld . , leaving 2677

16s. 8d. as the net proceeds.

On the 15th of September 1842, the Appellants’ firm a t Liverpool wrote to the

Respondents as follows : -

“Gentlemen,-The cargo of the WiL lkm Wright having been p l a c d in your

hands by Messrs. Dewar and co., for sale, on our account, the proceeds to be remitted,

we have been long waiting advices respecting it. On receipt we will thank YOU

to hand us account sales (for we presume the cargo must have been quitted) and

remit the amount in good bills. We shall feel obliged by your advising US, the

state of your market for fish, and the most probable assortment calculated to make

the best return.”

530

‘‘ Per Pearl, Kingston, Jamaica, 12th Feb. 1842.

HARRISON zi. SCOTT [1846] V XOORE, 364

E3641 To this letter the Respondents returned the following answer :-

‘‘ ~entleme~~,-We are in receipt of your favour of the 15th of September, in

reply to which we beg to state that, having been directed by Messrs. Dewar and GO.

to receive and sell the cargo of the William Wyight, on their accoullt, prior to her

arrival, which was confirmed by letter of your Newfoundland firm, accompanying

the cargo, and, on effecting sales, wc accordingly placed net proceeds to their

account. The annexed review will fully inform you of the state of our market, etc.”

The A p p e l l a n ~ applied again to the Respondents, for the proceeds of the sale,

and, as the Respondents refused to pay over the money to them, they comiienced

an action of assunlpsit against thenz, in the Supreme Court of Judicature in Jamaica.

The declarat io~~ contained three counts: the first was, for not account in^ for the

proceeds of the cargo consigned to them on behalf of the Plaintiffs. The second

and third were for money had and received, by the Defendants, to the use of the

Flaintiffs,

The cause was tried at the N i s i P r i m sittings of the Surrey Assize Court, in

Jamaica, in April 1543, before Xr. Justice McDougaIt, and the jury found a verdict

for the PlaititiBs, contrary to the opinion and direction of the learned Judge. A

new trial was afterwards granted by the Supreme Court, and the cause was again

tried before Mr. Justice M‘Dougall.

The evidence given upon the second tritil, consisted of the letters from Messrs.

Scott and haycraf t , to E3651 Messrs. Dewar, dated the 25th December 1841 ; the

letter from Messrs. Dewar and Co. to Appellants. of the 4th of January 1842 ; the

letters of the same date from Messrs. Devar to the Appellants; the letters froiu

Messrs. Scott arid Lea ycraft t o Messrs. IF-. and R. Dewar, bearing date, respectively,

the 8th and 22nd of January 1542, and the 12th of February 1842 j the letter from

the A p ~ e l l ~ n t s to Messrs. Scott and haycraf t , dated the 15th of ~ e p t e ~ ~ i b e r 1842;

and the letter from Bfessrs. Scott and Leaycraft to the Appellants, dated the 2nd

November.

Plnmmer Dewar was examined as a witriess, on the par t of the Plaintiffs: he

deposed as follows: ‘‘We ordered a cargo from the Plaintiffs. The cargo arrived

in the ?F7i2Zium Fright , about the 26th of December: 2841. Leaycraft, our agent a t

the time, told me of the arrival of the cargo.” On the arrival of the cargo being

mentioned, the witness could not recollect what he said at that particular time in

reply, but he recollected stating, on or about the 28th of December, to Leayoraft,

“ that on account of our having sent round circulars, dated the 10th of December,

when it appeared by our books, that we were barely able to meet our engagenie~its,

but rather coilsidered ourselves in insolvent circumstances, that he could not think

of receiving the W ~ ~ i ~ ~ ~ Wrq,rit’,e cargo, but wished Scott and Leayeraft to sell

the same, and remit the proceeds to Messrs. IZidley, Marrison and Co., ad Liverpool,

and that: he would write him when he got down to Nontego Bay: he could not

recollect what Leayeraft said in reply, but he did not object.” Upon his cross-

examination he said “ that he had a conwraation in September 1842, in company

with his brother Robert Dewar, with [3&3] Scott, respecting the Wdli

cargo, At that time Xessrs. Dewar owed Scott and Leaycraft a b a ~ a n c ~ of &2000

or $23000. About that time we got further cash advances from Scott and Leay-

craft. The advances of Scott and Lraycraft to us, generally, were to be provided

for by consignments of island produce, cash and bills, and sometimes by foreign

cargoes and parts of cargoes consigned to Kingston, to them, for sale. On account

of the large advances, and for the further advance to be made by Scott and Leay-

craft, to be remitted to Cuba, and then considering ourselves perfectly solvent, pie

told Scott, that, as the WTillGm ?T?.ight’s ciirgo was to calf a t Kingston, hc could sell

the cargo on our account, and give us credit for it. The proceeds of that cargo

were to be taken by Scott and haycraf t , as a payment. The arrange~nent of giving

the ~ ~ ~ i ~ ~ ~ z Wnglzt’s cargo was clearly uiiderstood between us and Scott, When

he saw Leaycraft in Kingston, In December 1841, Leayeraft. had received the bill

of lading and invoice for the B W k m Wi-Gght’s eargo.” On his re-examination he

said, ‘. At the time of the conversation with Scott, a t Montego Bay, we expected the

Willicim Wngi i t . Between that convessation and the arrival of the ~~~1~~~ Fright,

531

‘‘ Kingston, Jamaica, 2nd November 1842.

The Defendants pIeaded the general issue to the whole declaration.

The chazter-party, and bill of lilding, was also given in evidertce.

V MOORE, 367 HARRISON 2). SCOTT [ 18461

we made them payments of upwards of S i O O O . No payment was made s p e ~ i ~ ~ a l l y

on account of the advances for Cuba, to the best of his recollection: when the COD

versation took place in September, nothing was reduced to writing. No specific

advance was inade by Scott and h a y c r a f t to us, on the pledge of the Wi?lrianz

Wright’s cargo ; but Scott and Leaycraft had advanced, or were going to advance,

us cash, and we promised them the Wtllicrw~ nrriyht’s cargo. I will explain under

what circu~i~stai~ces the WzlEinm Triqht’s [367] cargo was promised to Scott, in &he

coi~Tersat~o~i referred to. There was a large balance due t o Scott and Leayeraft, amd,

hming cerbaiii produce in Cuba to ship, which required means to pay duties, etc.

over there, we asked Scott to advance certain sunis over to Cuba ; those SUMS, and

the balance already stated, we proposed to pay, by ~ 1 ~ O ~ , the ~ i l l ~ a ~ W r ~ g ~ ~ , s

cargo, arid some smaU acceptaiicest that would still leave a balance due. No agree-

ment was reduecd to writing. Did nor, recollect that Leaycraft said anything

about the pledge of the Vdlinnz Wrzght, iiz our conversatio~ a t Kingston, in

December 1841.”

Upon this evidence, the learned Judge gave his opinion, and directed the jury

as follows :-“ First, that, althox1gh Messrs. W. and B. Dewar and Co. did repudiat9

the contract, so made t o them by the Plaintiffs, as aforesaid, yet there was rro assent,

on the part of the Plaintiffs, to such repudiation, until they wrote Ihe letter bearing

date the 15th day of September 1842, mid that, notwithstanding the said repudia-

tion, the property in tlie said goods and nzerchandize, o r in the proceeds thereof,

~ ~ e m a ~ n e d in Messrs. vi’. and R. Dewar, until, and a t the time of their insolvency,

and passed to the provisional assignees of the estate and effects of Messrs. TV. and B.

Devm, upon the appointment of suck assignees. Secondly, khat, inmediately on

the arrival of the said vessel at Kingston, her port of destination, and on receipt of

the said bill of lading and invoice of the said c a i p , by the said Defendai~ts, a lien

attached oil the said cargo, in f a w u r of the said Defendants, in respect of the debt

due from the said Messrs. W. and 1%. Devar and Co. to the said Defendants, uiider

the contract of September 1841, aad justified the said ~ e f e n d a n t s in refusing to

account to the [Xis] Plaintiffs, for the said cargo, o r the proceeds thareof. Thirdly,

th.t the said Nessrs. W. and R. Dewar and Co. exercised an act of ownership over

the said cargo, by dirxt ing the said Defe~dants to take the same, and sell i t lor the

Plaintiffs, and direrting the balaiice of what was due on the charter-party to be paid

to Cragg. Fourthly, that by the said charter-party, the said vessel, called the

WilEimn Wright, became the private vesscl of the charterers, that is to say, of thc

said Messrs. W. and R. Dewar and Co., and that the s h i ~ ~ i e i z t of tbe said cargo on

board of the said vessel, by the ~ I a ~ ~ ~ ~ i ~ s , was avL absohite and complete delivery of

the said cargo into the possession of the said charterws.”

To each of these directions, the Counsel for tlie Appellants objected; and ex-

cepted. First, that the property in the said goods and m e ~ ~ ~ h a n d ~ ~ e , or th pro-

weds thereof, did not remain in the said hhsrs . ’517. and R. Dewar and Co., until

and nt tlie time of their insolvency, and did not pass to the provisional assignee of

their estate and effects. Secondly, t b t a lieo did not attach to the said cargo, in

respect to any debt from the said Messrs W. and R. Dewar and eo., in ftlvour of

the Defendants inixnediately 0x1 that arrival and that receipt, and tJlat there was

evidence from the cor~espondeIice, and other imtters given in evidence for the jury,

that such supposed lien would not justify the Defendants refusing to accoulzt to the

Plaintiffs. Thirdly, that the said Messrs. W. and R, Dewar and Co. had not exercised

an act of ownership in so directing as aforesaid. Fourthly, that the said Tressel did

not become, by virtue of the said charter-party, the private vessel of the said

oharterers, and also that the s h ~ p ~ e n t of he said cargo on board the said vessel was

not such a delivery aa prevented the said Messrs. Dewar and Co. from after-[369]-

wards repudiating the contract, o r rendering such repudiation inoperative : and

the Counsel for the Pinintiffs required the Judge to direct and give his opilliftn to

the jury, that, i f the jury should be of opiuion that the said Defendants had ex-

>ressly agreed with the Plaintiffs, with the assent of Messrs. Dewar, to accouxzt to

P l ~ ~ n t i ~ s for the proceeds of the sale, the ~ l a ~ n t i ~ s were entitled to have tJie verdict

on the issue found for them. And, fuitfier, that i f there were no express agrecme~~t

on the Defendants’ par t with the Plaintiff‘s, to account to the Plaintiffs, yet if the

jury should be of opinion that the P l a i n t ~ ~ s assented to and adopted the repudia-

532

.

HARRISON ‘U. SCOTT [1846] V MOORE, 370

tion o f the said cargo, by the said W. and R. Dewar and Co., with the knowledge of

the Defendants, the Plaintiffs were entitled to a verdict.

The Judge refused so t o direct the jury, and told them, that the only evidence

of agency between the Plaintiffs and the Defendants, was the letter of Dewar and Co.

to the latter, dated the 4th of January 1842, enclosing their letter to the Plaintiffs,

of the same date, and the disingenuousness of the answer thereto of the Defendant

Leaycraft, to the said Messrs. W. and R. Dewar, of the date of the 8th January 1842.

To this summing up, and the above directions, the Counsel of the Defendants

tendered a Bill of Exceptions, containing the exceptions before set forth. The jury

found a verdict for the Defendants.

The Appellants then presented a petition to Her Majesty in Council, praying

that the Bill of Exceptions, when sealed by the Judge who tried the cause, might be

referred to the Judicial Committee of the Privy Council, and be heard and dis-

posed of by them, without the intermediate appeal to the Court of Appeal, in Jamaica.

E3701 Mr. Cowling (13th June 1845 *), in support of the petition, cited Re Bnr-

nett (4 Moore’s P.C. Cases, 453), and the 7th and 8th Vict., e. 69.

Lord Broughan1.-Are any points of law raised by the Bill of Exceptions?-

[Yes, very important questions are raised.]-If so, then leave will be granted, as it

was clearly the meaning of the Legislature, in passing the 7th and 8th Vict., e. 69,

to favour appeals of this nature.

By an Order in Council, dated the 30th of June 1845, it was ordered, that the

Appellants should be permitted to enter and prosecute their appeal, or Bill of Ex-

ceptions (when sealed), to the charge and opinion of Mr. Justice MeDougall, before

Her Majesty in Council, without the intermediate appeal, to the Court of Appeal,

in Jamaica.

The Bill of Exceptions, having been signed and sealed by the Judge, who tried

the cause, was referred to the Judicial Committee, in the ordinary way, and the

appeal now came on f o r hearing.

Mr. Cowling, and Mr. M. Smith, for the Appellants.-The fourth exception clearly

shows a misdirection on the part of the learned Judge. By the terms of the charter-

party, it appears, that Cragg, the owner of the vessel, [371] contracted to receive

the goods and to deliver them: from these terms, i t is clear that the captain and

crew were really the servants of the owner. The shipment of the goods, therefore,

did not operate as a complete delivery, and the shipper could stop the goods. Bokt-

lingk v. Ingl is (3 East, 380). The

consignees had, therefore, power t o repudiate the cargo. In Atkin v. Barzuzck (1

Strange, 165), the goods actually came into the hands of the consignees, but their

affairs being in a declining condition, they sent them to a third party, for the con-

signor, and the Court held, in an action of trover, by the assignees of the consignee,

against the consignor, that the property was in the consignor. The principle of

this decision has been recognised and acted upon, by Lord Kenyon, in Salte v. Field

(5 Term Rep. 211), and by Lord Abinger, in SadZer v. Belcher (2 Moody and Rob.

487). The Judge’s direction, as a proposition of law, that the transitus was com-

plete upon the shipment, was wrong. It is clear that the consignee repudiated the

cargo, and that repudiation had the effect of re-investing it in the consignor. The

Judge said that there was no evidence of the assent of the consignors, until eight

months after the repudiation. No assent by the consignors was required, for i t is

a settled principle, that, where an act is done manifestly for the benefit of a party,

and notice of that act is given to that party, and he does not dissent, his assent will

be presumed. James v. Griffin (2 Mee. and Wel. 623). Atkin v. Barwick (1 Strange,

165). The third exception is also a misdirection of

the Judge. The letter of Messrs. Dewar, of [372] the 4th of January, and the evi-

dence of P. Dewar, show a repudiation by the consignees. Can it be contended that,

this being a perishable cargo, a direction by the consignees to the Respondents, to

sell for the consignors, was an act of ownership? In AtkG v. Barwick [1 & - a .

1651, and James v. Griffin [2 M. and W. 6231, there was no communication with the

consignor, yet the sending of the goods to a third party was held to have been an

Leave granted on giving security.

Abbott ( ( On Shipping,” p. 458 (6th Edit.).

Story ‘( On Agency,” p. 216.

~~ -

* Present : The Lord President (Lord Wharncliffe), Lord Brougham, the Right

Hon. Vice-chancellor Enight Bruce, and the Right Hon. Dr. Lushington.

533

V MOORE, 373 HARHISON ‘0. SCOTT [1846]

act done for the consignor. The

Judge directed the jury, that immediately the vessel arrived at her destination,

and the bill of lading was delivered to the Defendants, a lien attached on the cargo

in favour of the Defendants in respect of Messrs. Dewar’s debt due to them. We

submit that no such lien attached. The conversations and letters had no greater

effect to create a lien upon this cargo, than any other cargo belonging to Messrs.

Dewar; to sell which they were agents. Even if a lien was created, it must be

subject to the right of the consignors. It was a question which ought to have been

left to the jury, to say what was the effect of these conversations and the letters;

but supposing a lien was created, then arises the question, did the Respondents

receive the cargo by virtue of their lien, or did not their acts amount to a waiwr

of their lien? The Respondents, in their letter of the 8th of January 1842, in answer

to Messrs. Dewar’s, in effect, agree t o sell the cargo f o r the Appellants. If they

intended to have claimed a lien, they ought to have done so on Messrs. Dewar direct-

ing them to sell f o r the Appellants. No. They

assented t o Messrs. Dewar’s directions to sell. The first exception assumes a re-

pudiation by Messrs. Dewar ; but the Judge told the jury that there was no assent

by the [sa31 Appellants. Such assent ought to have been presumed, as it was

manifestly for the benefit of the consignor. Atkzn I-. Bn?wick [l Stra. 1651, iS’alte

v. Fzeld [5 T.R. 2111, and James v. Grzfin [ 2 M. and W. 6231. But there was suffi-

cient evidence of assent, even if such was requisite, and the observations of the

Judge were misdirections in law, as well as fact.

Mr. Watson, Q.C., and Mr. Forsyth, f o r the Respondents.-In all the material

parts of the Judge’s summing up, he was right in law. In order to make a Bill

of Exceptions valid, so as t o induce the Court to grant a venire de novo, the direc-

tion must be clearly bad in law, and the misdirection must have been upon a material

issue, and not upon something collateral. In the first place, this action was an action

of assumpsit, and the declaration contained three counts, the first, for not account-

ing for the proceeds of a cargo, consigned by the Appellants t o the Respondents,

and the second and third for money had and received. The Respondents pleaded

the general issue, t o the whole of .the declaration. To prove the first count, the

Appellants must have established a contract, creating the relationship of principal

and agent, between them and the Respondents. Where is there proof of such a

contract? The other counts, i t is impossible to sustain, unless there is privity

between the Appellants and Respondents, established in the first instance. Williams

v. Everett (14 East. 581). Wedlake v.

Hurley (1 Crom. and Jer. 83). Bamford v. ShuttlewoTth (11 Ad. and El. 926).

Anything in the Judge’s samniing up, not relating to [374] one or other of these

issues, was wholly immaterial. As to the fourth exception: When the goods were

shipped, by order of Messrs. Dewar, the property became vested in them; then did

tha t which took place, before the cargo arrived in Jamaica, divest the property out

of Messrs. Dewar? The Respondents were the factors of Messrs. Dewar, mho were

largely indebted to them for advances : the moment, therefore, the Respondents

received goods belonging to them, their lien existed. Hudson v. Granger (5 B. and

Ald. 27). Here was a specific appropriation of this cargo in paynient of their debt,

and the nioment the bill of lading came into1 the1 Respondents’ hands, their right of

lien arose. The right to stop

in transitu, is gone, if the consignee assign the bill of lading to a third person, and

the right of the consignor, against the assignee, is divested. Lickha?-roza Y. &‘a,yo?z

( 2 Tern1 Reps. 63). The bill of lading having come into the Respondents’ hands,

how could anything afterwards be done by Messrs. Dewar, to divest the Respondents’

right of lien? It is said by the Appellants, that the letter of the 4th of January,

made the Respondents the factors of the Appellants: this however is not so; the

Respondents, in their answer, of the 2nd of November, 1842, t o the letter of the

Appellants, of the 15th of September, in the same year, treated the cargo as belong-

ing to Messrs. Dewar, and claimed their lien on the proceeds. It is also urged, that

the assent of the Appellants to the repudiation of the cargo, avd the arrangement,

proposed by Messrs. Dewar, must be presumed, because it was for their benefit. The

Court will only presume assent in the case of infants. Suppose the Appellants had

refused to accede to Messrs. Dewar’s repudiation, they could [375] then have brought

534

The second exception also shows a misdirection.

Did they act as if they had a lien?

Stephens v. Badcock ( 3 B. and Ad. 354).

The transfer to their dominion was a conversion.

HARRISON 21. SCOTT [ 18461 V MOORE, 376

an action of assumpsit against them, for not accepting the cargo. ~ h ~ l ~ ~ o ~ t s v.

Ewczns (5 Nee. and Will. 475). The Appellants took months before they even signified

any interest in the cargo, and even then, they did not, in express terms, assent to

the repudiation by Illessrs. Dewar. No reliance can be placed on the Case of Atkin

v. Ba~wick . Lord Kenyon, in Neaie v. Ball ( 2 East. 125), questions its authority.

Two things must concur t o terminate a contract: repudiation by the ventlor, and

assent thereto by the vendee. h-errte v. Ball.

The case of James v. Gri f in [2 M, and W. 6251, relied on by the Appellants, is not

entitled to much weight, as Lord Abinger dissented from the rest of the Court.

Second exception : Kessrs. Dewar could not, by r e p u d i a t i ~ g their contract, get

rid of the Responde~ts’ lien. The Res~ondents were not bound to acmunt., unless

the Appellaiits proved a contract. Any observation, there€ore, of the Judge, 011

the matter of lien, was merely surplusage. As t o the third exception : ‘IBe subject

of this exception was ttholly immaterial to the issue, but the Judge’s direction was

right) for Messrs. Dewar exercised an act of ownership over the cargo, by giving it

in pledge to the Responden~s. Upon the first exception: KO question arises here,

of the Appellants’ right t o stop the cargo ir$ traasitu.---[The ~ i c ~ C h a n c e l l o r Knight

Bruce: I cannot understand the Judge’s chnrge, except that he meant, t ha t there

could be no stoppage ifi transitu, after the goods had been shipped. Ee seems to

think that there was a difference between delivery to a common carrier, and a

delivery to a chnrlered ship.]-There was a complete delivery up011 the shipment of

the goods. The only ques-

[376]-tion is, whether the contract between the Appellants and Messrs. Dewar was

rescinded, and we submit that Messrs. Dewar had no power to rescind it, after they

had created a lien, in faaour of the ~ e s ~ ~ o i ~ d ~ n t s ; the authority they gave the Re-

spondents to sell, being coupled with an interest, could not be revoked. Gatmen v.

Hortolz (10 Barn. and GI-. 131). It could not be revoked by the subsequent counter-

mand of the cargo. The only importiant par t of

the Judge’s charge, was, where he told the jury, that the oinlly evidence of agency was

conta~ned in the letters of the 4th and Sth of January, and we submit that the

Judge was correct. It is precisely the cam of Williams v. Everett 114 East. 5811.

All the otlier letters are silent on the subject of agency.

Mr. Cowling, in reply.-The Appellants never lost their right to stoppage in

transitu. In B o h t h g k v. Ing& [3 East. 3801, the bill o f lading was delivered,

as in this case, but the Court held that the right to stop in, tmnsitu, remained.

Messrs. Dewar undertook to act f o r the Appellarits, and the law will iinply their

asserit.-[The Vice-Chancellor Knight Bruce : Your argument assumes that the

goods, at the time of the sale, were the property of the Appellants.]-~~essrs. Dewar

having repudiated the goods, and desired a sale an behaIf of the consipiors, the Ian.

would imply their assent, and the promise of the Rmpondents to account to the

consignors would also be implied. Thus, in Salte v. Field [5 T.R. 2111, trover was

held to lie by the consignor against the agent of the consignee. The Respondents

contend, that tliere rnast be actual privity, and relied upon Williams v. Eiierett [Id

East. 5811, and other [37’sa] cases. The circut~star~ces

of this case are wholly different from those. The Judge was wrong upon the ques-

tion of agency; there was the conversation betmeen Plnmmer Dewar and the Re-

spondents, which, coupled with the letters of the Respondents of the 22nd of January

and 12th o f February, 1842, was evidence of agency.

The TkeChaiicellor Knight Bruce.-In this caw, their Lordships have fully con-

sidered the arguments on both sides. They are of opinion, that it is not material,

nor do they consider i t necessary, to decide, whether the Appellants are right in

contcndin~ that the Res~~ondents had no right of lien on the cargo.---[His ~ o r ~ s ~ ~ p

then, after reading the evidence of Ib. I’lummer Dewar, the letters from Messrs.

Dewar to kfessrs. Scott and h a y c r a f t and to Nessrs. Ridley, Harrison alld GO., bear-

ing date the 4th of January, 1842, thf. letters from EYIessrs. Scott and Leapcraft.

dated the 8th asid 22nd of January and the 12th of February, 1S42, proceeded as

fdlows :]-It appears to us, to be the ina avoidable inference from the letters of the

8th and 22nd of daiiuary, coupled with the evidence of Plumnler Dewar, that the

Respondellts agreed to sell the cargo, on t i l e Appellants’ account, The Resporldents

836

Smith v. Field (5 Term Rep. 402).

Pentworth v. Outhwaite (10 Mee. and Wel. 436).

Fisher v. .$filler (I Bing. 150).

None of these cases apply.

v MOORE, 378 WILLIS v, G~PPS [ L 8461

sold the cargo, without even expressing any intention, on their part, n o t to apply the

proceeds of the cargo, in conformity svith the directions of Messrs. Dewar, con-

tained in the Ietter of the 4th of January. 1%

appears to tlieir Lordships, that, after such conduct, it is impossible to allow them

now to say, that they did not sell the goods in c o ~ ~ f o r ~ i t y with the d~rec~ ions of

Messrs. Dewar. E3781 Their Lordships are, therefore, o f opinion, that it beconies

unnecessary t o decide, whether, by lien or otherwise, the Respondents could have

claimed to hold the cargo against the Appellants. Either they were conscious that

there was no riglit of Xien, or they did not wish to avail t,kenaselves of it. There is

no evidence, oral or docunientary, that they, a t that time, clainied a Iien. I f the

A ~ p e l l ~ ~ t s Bad declined to agree to the repudiat~on of the cargo, or to refuse to

recognise the ~espondents, as tl-ieir agents, the case mould be very different ; but it is

in evidence, %hat thej- did adopt the transaction, and we are of opinion that it

stands lipon the same footing, as if the direction of Xessrs. Dewar, %Q tho Re-

spondents, t o sell arid remit to the Appellants, had been the dirmtion of the Ap-

pellants. The Judge of the Court below ~ h o u ~ ~ ~ t that? the only evidence of agency,

between the A~?pel l~nts and ~espondents, was the; letters of the 4th and 8%h of

Jan~iary, and that that was insuEcient. !&is might have weight, if there had been

any evidence of dissent; but there is none. Their ~ o ~ , c ~ s h i p s are of opinion, that

the Respondents sold the cargo, and received the proceeds, under the express authority

of Nessrs. Dewar to do 80, and to remit to the Appellants the proceeds, after deducting

the freight, and tha t they did sell the cargo, as the agents of the Appellants. Con-

sequently, the Judge was wrong in d ~ r e c t i n ~ the jury as he did, and the Appel~ants

are eatitled to a. venire de mw’o.

They did not then claim any lien.

pews’ ~ i ~ . t t., cmom-: rrr. APPBALS TO PBIXT C ~ U X C ~ L , 1. S.C. i o 443.

A s to appeals f rom Jamaica, see 0. in 6. of 14th April, 1852 (S ta t R. and 0.

Rev. iv. 334), made under the Judicial ~ o ~ 3 m ~ ~ t e e Ac , 1544 (7 and 5 Irict. o.

69); and cf. aIso 8.4. of Jan7akca v. ~ ~ a ~ e ~ ~ ~ n , 1848, 6

~~~~~~~~~s v. ~ o ~ ~ ~ ~ i ~ ~ ~ ~ ~ ? . ~ ~ ~ 1850-52, ‘i Kw. Y.C. 226. As to new trial for

isd direction (5 Moo. P.C. 378), cf. Doe d. Dcviize v. Fi fson , 1855, 10 Moo. c. 502.j

~3791

JOEIN ~ ~ 7 A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ I S , - ~ ~ ~ ~ e ~ ~ ~ ? ~ ~ ; SIR GEORGE GIPPS, ~ n t . , - ~ e ~ o ~ ~ e ~ ~

[June 24 and 25, duly 8, 18462.

OK APPEAL ~~O~ NEW SOUTI3 VVAbES

The Statute, 22 Geo. ILL, ci, 75, empow~~*i i~g the Governor and Council, of a

colony or plantat~on, to amove persons holding patent oEcas, for neglect or

misbehaviour, includes judicial offences. But the GoTerizor and Council of

New South Wales, having amoved a Judge, without giving him notice, or

affording him an opportunity of ~ n s w e r i ~ ~ g the charges brought against him,

and upon vhich the, order of amotion was founded, such order was fleId iliegal,

and reversed.

T‘his was an appeal, against an order of amotion from the office of one of Bey

Majesty’s Judges, of the Suprenae Court of New South Wales, and Resident Judge at;

Port Philip, in the saiiie colony, made by Sir George Gipps, the Governor, and the

Execirtive Council of $,hat colony, presented by John Walpde Wiffis, Esy., the Judge

so removed. Majest,y, to the J u d ~ c i a ~ ~ o n i ~ ~ ~ t t ~ e

of the Privy Council, and arose, under the following c i rc~~in~tances : -

By the Statute, 9 Geo. IV., c. 83, “ for providing for the adniinistration of

justice, in New South Wales and Van Dieman’s Land, and for the more effectual

* Present: The Lord Prwident (the Duke of Bueeleueli), the Lord Ckancetlor

[Lord Lyndhurst], Lord B r o ~ ~ h a ~ , Chief Justice Tindal, Mr. Baron Pwrke, the

Eight Ron. T. Pemberton Leigh, and the Right Eon. W. E. Gladstone.

536

!I%e appeal was referred, by