In Hodgson v. Loy (a), in 1797, the bankrupt had purchased of Cooper 104 firkins of butter, at 41s. He paid him 30l. on account, consented to consider an old account of 201. due to him from Cooper as paid, and gave Cooper a bill for 100l., in all paying him 150%. on account. Then after his bankruptcy the defendant by Cooper's desire stopped the goods in the hands of a carrier. Some months afterwards, Cooper tendered the assignees of the bankrupt the bill, which in the mean time was dishonored, and the 30l. The action was trover by the assignees. They contended that stoppage in transitu was a rescision of the contract, and therefore could not be exercised when there had been a part payment, at least without an offer to return the price actually paid; and that in this case the tender came too late, and did not include the debt for 201. for which Cooper had given credit. 66 66 The Judges at first doubted, and had ordered a second argument on this point, but before the argument they said it was unnecessary. They were clearly of opinion that the circumstance of the "vendee having partially paid for the goods, does not "defeat the vendor's right to stop them in transitu, "the vendee having become a bankrupt." Neither does it make any difference, though the goods were sold on credit which had not expired at the time of the stoppage, so that the price was not then due. In two cases which were very much litigated, Inglis v. Usherwood (b), in 1801, and Bothlingk v. (a) Hodgson v. Loy, 7 T. R. 440. Inglis (a) in 1803, the litigation arose out of a transaction in which a cargo of goods was shipped on board a vessel chartered by the bankrupt, and according to the terms of the contract "the goods were to be drawn for a month after shipment." A stoppage in transitu made before the lapse of the month was held good; and it seems to have been not thought worth while even to raise the point that the time had not come at which the vendors were entitled to demand payment, if the purchaser had remained solvent. But when the vendor has received bills of exchange or other securities for the whole price, the case may seem not so clear. He is not quite a paid vendor, for the bills may prove worthless; he is not quite an unpaid vendor, for the bills may prove good. It seems, however, very well settled, that where the vendor is no otherwise paid than by having received the insolvent purchaser's acceptances, he may stop the goods; though he may have negotiated the bills, and they are still outstanding and not yet at maturity. And this is very reasonable, for it is quite certain that the insolvent will dishonor his acceptances, and all but certain that the holders will fall back on the drawer for payment. In the case of Feize v. Wray (b), in 1803, already cited, Fritzing, the vendor, had drawn bills on Browne, the purchaser, for the full price: Browne accepted the bills, and Fritzing negotiated them: Browne failed, and the goods were stopped on the 11th September. (a) Bothlingk v. Inglis, 3 East, 381. The bills did not arrive at maturity until the 7th of October, they were then dishonored; but Fritzing himself had by that time become insolvent, and the bills were not taken up; yet the stoppage was held good, the King's Bench saying that the right of the holder of the bills to prove against the estate of the bankrupt could not have more effect than part pay ment. In Patten v. Thompson (a), in 1816, the plaintiffs had drawn on the purchaser for the price, and held his acceptances, which were not due at the time they stopped the goods, yet the stoppage was held good. In Edwards v. Brewer (b), in 1837, the Exchequer would not listen to an attempt to argue that the vendor who held the purchaser's acceptance not yet at maturity, could not stop the goods without tendering the acceptance. Against these cases is to be set the Nisi Prius decision of Lord Ellenborough in Davis v. Reynolds (c), in 1815, which certainly seems inconsistent with them. There Peacock and Company, the vendors, held the purchaser's acceptance for the goods: the purchaser sold the goods to Davis, the plaintiff, whilst yet at sea, and indorsed to him the bill of lading; but it was not stamped, and therefore could not be proved: then Peacock and Company stopped the goods, and got them from the defendant, a wharfinger, under an indemnity. The plaintiffs recovered in trover, and (a) Patten v. Thompson, 5 M. & S. 350. Lord Ellenborough is reported to have said, that “till "the time of credit has expired, and the bill was "either paid or dishonored, Peacock was in the "situation of a paid vendor." The only possible distinction between this case and those previously cited, is that there had been an assignment for value in this case, but unaccompanied by taking possession or by proof of the indorsement of the bill of lading. In Dixon v. Yates, (5 B. & Ad. 313), a countermand of authority to receive the goods under circumstances precisely similar, but made after the bill accepted by the intermediate purchaser was at maturity, was held good. That case is an authority, that the taking of the insolvent's acceptances by the vendor, has no effect on the vendor's rights as against a sub-purchaser, (who has not taken an indorsement of a bill of lading), after the acceptances are dishonoured. And Feize v. Wray, (3 East, 93) is an authority that the taking of the purchaser's acceptances does not suspend the vendor's right to stop the goods, as against the original purchaser. Davis v. Reynolds is a decision that it does suspend them, as against a sub-purchaser. The reason of this distinction is not obvious: the probability is, that Lord Ellenborough, though as a Judge he could not read the bill of lading for want of a stamp, was not able to prevent his judgment being warped by the natural feelings of repugnance to the effect on evidence of the stamp laws, (certainly, the most clumsy and unjust provisions in English law;) and that he was astute to defeat the stamp laws, an error not without pre cedent amongst Judges. The case, however, has never been expressly overruled. When the vendor has received payment from the holder of the bill, and is not liable to take it up; he is paid in every sense of the word. Thus in Bunney v. Poyntz (a), in 1834, where the agent of the vendor took in payment a promissory note, payable to his own order, negotiated it and embezzled the money and the note was afterwards dishonored, the King's Bench held that the vendor was paid. His agent had received the money, and the vendor could not be made to refund. The fact that he had really received no benefit from the note, gave his claim a colour of justice, but on examination it was quite immaterial. In Vertue v. Jewell (b), in 1810, there was a running account between two parties, in which were included bills of exchange not yet at maturity; and the party who on the balance of the account was the debtor, consigned goods on account of and to meet this balance. Before the goods arrived the consignee became bankrupt, and if the bills for which he had credit, were struck out of the account, the balance would be the other way. The consignor stopped the goods, and the action was trover by the plaintiff who represented the consignee, against the defendant, who represented the consignor. Lord Ellenborough ruled, that "the consignor being at the time of the consignment indebted on "the balance of accounts, divested him of all control "over the barley from the moment of shipment. The "non payment of the bills of exchange cannot be (a) Bunney v. Poyntz, 4 B. & Ad. 568. |