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§ 40. De traditione, p. 84. Stipendiaria; paid tribute to the people; Tributaria, to the prince. Tradition or delivery, is either real, as of a piece of goods to the purchaser, or symbolical, as the keys of a house; or with us, a ship's papers. Dig. 18. 1.74. § 41. Limitatio, p. 84. Ex promissor, bondsman: one who makes himself originally liable for the debtor. Ad promissor, a guarantee, or Surety. By the civil law, goods sold and delivered might be reclaimed if not duly paid for. Dig. 18.1. 19 and 53. Dig. 14.4, 5 penult. Dig. .19. 1. 11. 2. Thursby's assignees v. Gray's administrators. Debt on bond. Com. Pleas, Northumberland county, 1808. Spring, a storekeeper, purchased goods at public auction belonging to Thursby, and gave bond for the payment of the amount in six months; in which bond, Gray joined as surety. The bond was not demanded at the expiration of the six months either from Spring or from Gray: it lay thus till Spring became insolvent about two years from the date of the bond. It did not appear that payment had ever been demanded, either from spring or Gray. Spring's insolvency began to be suspected about a twelvemonth before he actually failed. Previous to that time, and for a twelvemonth or more from the date of the bond, it might have been received on demand, or recovered at law, without doubt. Spring lived in Northumberland town, and Gray in Sunbury, about two miles off. Sometime after Spring's failure the assignees of Thursby brought suit on the bond against the administrators of Gray. I charged the jury that the administrators of Gray under these circumstances, were not liable. The jury brought in a verdict accordingly. This case came on to be argued in the supreme court of Pennsylvania, sitting at Sunbury in June, on the ground of misdirection of the judge in point of law, and it was held that the doctrine laid down by judge Cooper was not supported to this extent, by any case in the English books, and the verdict was set aside. This case is not reported in Binney; I am therefore unable to state the precise grounds of decision of the supreme court. But as a view of the leading cases of suretyship may be of use to a student, I have collected them. , “Surety relieved in equity where a bond was continued in use without “his privity, he thinking the same to be paid. Bullock and Pope, 11 “Car. 1. Tothill's reports in chancery, p. 180.” The same point (equally broad) in Saunders v. Churchilland Smith. . Jb. 181.
The same point in Moile v. Roberts, Ib. 182. The same point in Hare v. Mitchell, Ib. 81. * , The same point Carey's Chancery Reports p. 1 and 2. UC The leading principle of the following cases, is, that “the contract “of a surety shall be construed according to the letter, strictly and in “his favour: and shall not be extended by implication.” A doctrine indeed, laid down as the result of all the cases of suretyship, nearly in the same words by Lord!Mansfield in Dance et al. v. Girdler, . 4 Bos. and Pull. 34, and by Buller in Stratton v. Rastall, 2 Term Rep. 370. and by Spencer and Thompson Justices, in Ludlow v. Simond in error. 2 New-York, cases in error, 29. 57. Lord Arlington v. Merrick, 2 Saund. 411. Horton v. Day. Ib. in notis. Wright v. Russel, 3 Wils. 530, 2 Black. Rep. 934. Skip v. Hay, 3. Atk.91. - Barker v. Parker, 1 Term Rep. 287. - 2 : Barcklay v. Lewis, Ib. in not. Stratton v Ralston, 2 Term Rep. 366. . . 1 Barns, 214. - Nesbitt v. Smith et al. 2 Pr. Ch. Cas. 579. Rees v. Barrington, 2 Vez. junr. 540. Law v. East India Comp, 4 Vez. 824. Dance v. Girdler, 4 Bos. and Pull. 34. Leverpool Comp. v. Atkinson, 6 East, 509. To these may be added the analogy of all the cases, relating to the holding over a negotiable security as a bill of exchange. See also the people v. jansen et al. 7 Johns. 332. The above case however, of Thursby's Assignees v. Gray’s administrators, seems to settle the law in Pennsylvania, that no surety in a bond can discharge himself, but by payment of principal and interest. This 41st Section is discussed in Ludlow v. Bowne and Eddy, 1 Johns, N. Y. rep. p. 17, which in part is a case of stoppage in transitu; a branch of law connected with, and as it seems to me arising out of the doctrine laid down in the first sentence of this section, though somewhat modified. The general principle involved in the right of stoppage in transitu, is, that goods being ordered by a customer, and packed up and sent off to be delivered according to that order by the merchant may be stopt in their way or passage to the place of delivery if the merchant has reason to suspect the solvency of the consignee, or Purchaser.
The first case reported in the books on this subject wherein the right of stoppage in transitu was allowed, is Wiseman v. Wandeputt, 2 Vern. 203. which was confirmed obiter in Snee and Baxter v. Prescott et al. 1 Atkins, 249. and in Birkitt v. Jenkins cited in Vale v. Bayle, Cowp. 296. The cases are very numerous on this head, and it would immoderately extend this note, to abridge them all; but the leading principles already settled, are, that as between vendor or consignor, and vendee or consignee, the property of goods ordered and sent, is not altered till actual delivery ; and the vendor has a right to stop them in transitu : but 1st, This is a right that exists only between the consignor and the consignee ; and cannot be defeated, by the contracts, or proceedings of third persons, excepting those who claim by bonā fide purchase and sale under the consignee. 2ndly. It can be exercised only during the transit: thus goods may be stopped in the hands of a carrier : but if delivered into the possession of the agent: or of the accustomed wharfinger of the consignee : or if to any wharfinger, who makes an entry of them in the name of the consignee, and charges him with wharfage: or if the consignor charges ware-house-room after they are packed up : or if the assignee of the consignee puts his mark upon them and exercises ownership over them: or if they are directed to be sent and are sent to any particular place, though short of the place of abode of the consignee, who then exercises the right of ordering them to an ulterior destination: (but compare Stokes v. Riviere, cited 3 Term Rep. 466, & 1 Campb. 282, with 5 East, 175,) or though there be only a part delivery to, or an actual occupancy of a part only by the consignee his agent or his assignee, it stands for a delivery and occupancy of the whole, and destroys the right of stoppage in the transitu. But part payment does not take away this right; nor is the vendor affected by any agreement between the consignee and the carrier, or by any lien of the latter, but the vendor may pay the carriage and retake the goods; and hold them on his own account, or may again tender them to the vendee and bring suit thereupon for the amount, if no loss or damage hath arisen from the detention. 3dly, The assignment of a bill of lading divests the vendor of this right, as it was held at first to do in Lickbarrow v. Mason, 2 Term Rep. 63, overruled in error in the exchequer chamber, 1 Hen. Blacks. 357: and finally settled as at first decided, 6 Term Rep. 20. Newson v. Thornton: for the bill of lading is now considered in the light of a negotiable instrument. So, where the vendor gives an order to the vendee, who thereupon procures an entry of them to be made in his name as
owner; or becomes liable for ware-house-room or wharfage; or on the strength of that order, sells them to a third person bona fide; or where they by any means come into possession of a bona fide purchaser under an act of ownership of the first vendee, in all these cases, the vendor's right of stoppage in transitu is divested. 4thly. As to suits of trover against carriers, or assumpsit by them. Carriers are liable to trover by the vendor; for goods while in their possession are in transit : when once delivered according to order, the carriers are discharged. As to their right of action for the carriage. It seems that unless the general rule be modified by some special agreement, the consignee is liable for freight and carriage: they are delivered to the carrier as being the goods of the consignee to be delivered to him. Hence the consignee may sue the carrier for loss or damage, for on delivery to the carrier, the property vests in the consignee, subject only to the right of the consignor to stop them in transitu. 3 Bos. and Pull. 48. 119. and Dutton v. Solomonson, ib. 582Coxe v. Harden, 4 East, 211, 1 Johns. N. Y. Rep. Ludlow v. Bowne and Eddy. 5thly. The bankruptcy of the vendee, does not of itself operate as a countermand of the order, or avoid the sale. The French law as laid by Pothier in his Traité du Contrat de Vente. n 332, is conformable to this section of the Institutes: viz. that even though the goods be delivered to the purchaser, the property is not out of the owner till they are paid for, unless under a special contract of selling them on credit. The following list of cases on the subject of stoppage in Transitu, may be of use, as I do not know where else they are collected. , Wiseman v. Wandeput, 2 Vern. 203. A. D. 1690. Snee and Baxter v. Prescott et al. 1 Atk. 246. A. D. 1743. Fearon v. Bowers, cited 1 Hen. Blacks. 364: A. D. 1753. Burghall v. Howard, cited in the same case. 32 Geo. 2. Birkit v. jenkins in Vale v. Bale. Cowp. 296. 2 Term Rep. (Durn, and East,) 63.
1 Hen. Blacks. 357. Lickbarrow v. Mason,< 2 Hen. Blacks. 211. " . 5 Term Rep. 683. * . 6 Term Rep. 20. Solomons v. Nissin, 3 Term Rep. 674. D Kinlock v. Craig, 3 Term Rep. 119. Ellis, v. Hunt, 3 Term Rep. 464. | - Newson v. Thornton, 6Term Rep. 20. K. ... Gwenson v. Morse, 7 Term Rep. 65. Hodgson v. Loy, 7 Term Rep. 441. | Daws v. Peck, 8 Term Rep. 330.
Sweet v. Pym, 1 East, Rep. 4. l Inglis v. Usherwood, Ib. 515. Feize v. Wray, 3 East, 93. | JValley v. Montgomery, 3 East, 583. f Dixon v. Baldwin, 5 East, 175. Newson v. Thornton, 6 East, 20. | Cuming v. Brown, 9 East, 506. J Sluley et al. v. Heyward et al. 2 Hen. Blacks. 504. Mills v. Ball, 2 Bosanq. and Pull. 457. Openheim v. Russel, 3 Bos. and Pull. 42. Richardson v. Goss, 3 Bos. and Pull. 119. Scot v. Petit, 3 Bos. and Pull. 469. Hammon v. Anderson, 4 Bos. and Pull. (New rep.) 69. Northie v. Cragg, 2 Esp. rep. 613. Wright to Lawes, 4 Esp. rep. 85. Kymer v. Sowercropp, 1 Campb.. rep. at Nis. Prius, 109. Smith v. Goss, 1 Campb. 282. Harvy v. Mangles, 1 Campb. 452. Harman v. Anderson, 2 Campb. 243. ~ I have met with but the following two cases, among the American Reporters. Hollingsworth v. Napier, 3 Caines N. Y. rep. 182, Ludlow v. Bowne and Eddy, 1 Johns. N. Y. rep. 1 in error. § 43. De quasi traditione, p. 85. Acquiritur proprietas. This is called fictio brevis manus ; which takes place when goods are put into the possession of some person by way of deposit or loan, and are afterwards given or sold to the same person, he being already the possessor. Dig. 23. 3. 43. Harris, § 44. De traditione clavium, p. 85. The spirit of this section would embrace our law as to the delivery of possession by the delivery of documents and muniments of title. § 46. De habitis pro derelicto, p. 85. The English law of waifes, I presume does not extend to this country: in that country waifes, hona waiviata belong to the prince by prerogative, 1 Blacks. Comm. 297. § 47. De jactis in Mare levanda navis causa. Item. &c. p. 86. As to things jetsam, Flotsam and Ligan, see 1 Black. Comm. 293. Furtum committit.] None of these goods, which are colled jetsam, (from being cast into the sea while the ship is in danger) or those called Flotsam (from floating after shipwreck) or those called Ligan, (that is, goods sunk in the sea, but tied to a buoy, that they may be found) are to be esteemed wreck, so long as they remain in the sea. And by 3 Edw. 1 cap. 4. it is enacted—That if a man, cat, or dog, escape alive out of the ship, whereby the owner of the goods may be Ánown, neither the vessel, nor any thing therein, shall be adjudged wreck; but shall be restored to the owner, if he claims within a year