STATUTES.-STOPPAGE IN TRANSITU. TAXES.

E. OTHER INSTRUMENTS.

367

an act of bankruptcy, but more than two months before the commission issued, the jury are not bound to infer A policy containing a warranty to sail that the defendant had notice that the on or before a given day, may be al-trader was insolvent or had stopped paySmith and another, assignees of Tupman v. Dobree, Dallas, C. J. Westminster, 20th May, 1820.

tered, pending the risk, by a memorandum whereby the underwriters, in consideration of a further premium, agree to cancel the warranty, and to make a return of the additional premium if the ship sail with convoy. Ridsdale and others v. Shedden, 4 Campb. 107. Ellenborough, C. J. 1814.

An affidavit defective for want of a title may be intitled and re-sworn without a fresh stamp. Prince and others v. Nicholson, executor, C. P. M. T. 1813. MSS.

S. C. not S. P. 5 Taunt. 333; 665; and 1 Marshall, 70, 280, 401.

And see Anon, 3 Taunt. 469.

STATUTES.

B. POINTS ON PARTICULAR

STATUTES.

ment.

STOPPAGE IN TRANSITU.

C. AT WHAT PERIOD.

A. having entered goods in the books of the West India Dock Company, received two dock warrants or delivery orders in blank for them, which he delivered to B. on a sale of the goods to him, and B. having sold the goods to C. delivered the dock warrants to that person, and C. employed D. as his broker, to effect a sale of the goods, and delivered over the dock warrants, one of which was signed by C., but the blank intended for the name of the purchaser remained, and D., after

B. (hh) 11 Geo. 2. cap. 19. sect. 3 & 4. having effected a sale on credit, de

(Landlord and Tenant.)

The landlord may proceed by action or by complaint before a magistrate for the double value for aiding and assisting in the fraudulent removal of goods, at his option, although the sum claimed be less than 501. Horsefall v. Davy, 1 Stark, 169. Gibbs, C. J. 1816.

And plaintiff may sue notwithstanding he may have first complained to a magistrate. Ibid.

And see ante, ACTION, pl. 87.

B. (ii) 15 Geo. 2, cap. 3. sect. 5. (See ante, BILLS AND NOTES, pl. 1.)

B. (kk) 46 Geo. 3. cap. 135. sect. 1. (Bankrupt.)

Trover by the assignee of a jeweller against a pawnbroker. Though it should' be proved that the bankrupt had pledged

livered the dock warrants to the purchaser, one of which (viz. the one in which the blank for the name of the purchaser remained,) the purchaser deposited with E. as a security for money advanced on the faith of that warrant: held, that C. had no right to put a stop upon the goods in the event of the purchaser not paying for them, since the transfer of the warrant by D. his broker operated as a constructive delivery of the goods, so as to defeat C.'s right of stoppage in transitu. Keyser v. Suse, Sibeth, Edward Man, and James Man, the younger, 1 Gow, 58. Dallas, C. J. 1818.

TAXES.

Where a lessor covenants to allow

gold seals, &c. with the defendant, after land tax, the lessee can only deduct in

B. CONVERSION BY DEFENDANT. And see ante, APPENDIX, STATUTES, B. (kk).

The hirer of goods, who sends them to an auctioneer to be sold, is guilty of a conversion; and so is the auctioneer, who refuses to deliver them up unless the expense incurred be first paid. Loeschman v. Machin, 2 Stark. 311. Abbott, J. 1818.

A tender of a bank-note in payment of a fractional sum is good, if the creditor object to receive it merely on the In trover for a landau, proof of a deground of the sum offered to be paid mand of the landau and non-delivery being less than the sum claimed, al-in pursuance of it, is evidence of a conthough the creditor is required to re-version. Watkins, assignee of Moody, a turn the difference between the bank-bankrupt, v. Woolley, 1 Gow, 69. Richnote and the fractional sum. Saunders ardson, J. 1819. v. Graham, 1 Gow, 111. Dallas, C. J. 1819.

TRESPASS.

C. TO REAL PROPERTY.

C. (a) Where it lies. Action of trespass. Demise of a messuage with the appurtenances.For several years, the door way of one of the rooms on the ground floor, formerly part of the house, had been bricked up.

"Trover will not lie where the party that hath the goods hath them by a delivery with a trust. As where I deliver

my goods to a carrier to carry for me, and he doth keep, waste, or dispose of them; there not this action of the case, but another kind of action of the case lieth." Mich. 9 Jac. B. R. Worme and Wall's case, 1 Sheppard's Abr. 122.

This decision, which is reported in nearly the precise words used by the Lord Chief Justice when he directed the non-suit in Devereux v. Barclay (a) appears to have escaped the notice of subsequent writers, and was, unfortunately, not discovered till after the argument upon the motion for a new trial. The walls of the room The proceedings in court in Devereux were wainscot only. v. The defendant V. Barclay, have been shortly reported in had taken the brick work away and had 2 B. & A. 791 (b). The nonsuit had been directed upon the ground that the modern entrance. Scarup lett insisted that as the room was within the purchaser having delayed taking the external walls of the house, and had away the oil for several weeks after the been formerly occupied with the house, stipulated time, the vendors must be and the lease had no exception, it passed considered as standing in the situation of warehousemen, and that the delivery as a part of the messuage. Abbott, C.J. said, it did not matter how it was sepa-having been by mistake, such delivery of the oil to Dale by the defendants rated from the house, the lease passed no more than the rooms usually occu

fastened

was not evidence of a conversion.

The court afterwards set aside the

pied with the house, and that its being nonsuit chiefly on the authority of

within the external walls was not material. Karslake v. White, Abbott, C. J. Sittings after Trinity Term, Middlesex, 1819.

Qu. Could burglary there be charged as committed in a part of the dwelling?

(a) Ante, 293, Trover, pl. 19.

(b) From the report in 2 B. & A. it might be inferred, that the second parcel of oil was sold though the second parcel was, in fact, darker as "dark Sperm oil." This was not the case, than the first.

Youl v. Harbottle and Samuel v. Darch, fore, here not even an innocent assumpante, 293, TROVER, pl. 18. tion of a power of disposing of the proIn those cases, a carrier, who had been perties. See 2 Bulstr. 312; Drake v. intrusted with goods by A., afterwards, Shorter, ante, 294. A distinction siupon B.'s claiming such goods to be-milar to the above is taken by the canlong to him, delivered them to B.; and onists. Pothier, Traité du Contrat de it was held, that such delivery to B. Mariage, num. 309, 310; 1 Phillimore's was evidence of a conversion in an Reports, 132, Wilson v. Brockley. If action brought by A. the acceptor of a bill not payable to Manning, in shewing cause, attempt-bearer, pay the amount to a person who ed to distinguish that case from the one falsely pretends to be the owner or the before the court, in this respect, that in owner's agent, the payment will not Youl v. Harbottle, the defendant had discharge the acceptor from his liabidelivered the goods to B., upon a claim lity to the true proprietor of the bill, made by him, in opposition to the title although the strongest grounds may of A. He had, therefore, taken upon have existed for giving credence to the himself to exercise a jus disponendi assertion. But where the bailee of a over the property, inconsistent with the specific chattel, acting bonâ fide, delititle of A. He intended to deliver to vers it to a person, whom, upon appaB. and had made the delivery to B. not rently good grounds, he believes to be from any mistake, in supposing he had the agent of that party who is in truth acted on behalf of A. He had merely the owner, the bailee is discharged (b). mistaken the right of B. In that case, (b) The engagement which the drawer has therefore, it was adjudged that a de-contracted with the holder, and to which the livery to B., in opposition to the better acceptor has acceded, is not debitum certi cortitle of A., was, as against A., a conver- poris, but is debitum generis seu quantitatis, sion, to which bona fides of the defend-viz. of a certain sum expressed in the bill which the drawer has undertaken shall be paid at the ant's mistake as to the legality of B.'s place on which the bill is drawn. But there is claim furnished no answer. But in the a great difference between debita certi corporis principal case, the defendants never and debita generis seu quantitatis. In debita acted in opposition to Collinson's title, certi corporis the thing due is at risk of the and never intended to deliver the goods without any fault on his part, it has ceased to be creditor, and the debtor is discharged, when, to any other person; and the delivery, in his possession. From which it follows, that which was set up as a conversion, if a debitor certi corporis delivers the thing due as against Collinson, was intended by to one whom he has reason to think authorized the defendant to be a delivery to him, by the creditor to receive it, though the fact and an adoption of his title; for the de-turns out to be otherwise, such delivery is good, and he is discharged, for, thereby, without any livery had been made under the idea fault on his part, he has ceased to be possessed that Dale, the person to whom it was of the thing due. For example, you sell me made, was Collinson's servant, he being, your horse, and I send Feter with a note, by in truth, the servant of Sturge, to whom which I request you to deliver the horse to Collinson had sold the second parcel of stolen, and the thief presents himself to you, oil (a). It was ignorantia facti, not pretending that he is Peter, and you deliver the merely ignorantia juris; there was, horse to him, you are, undoubtedly, discharged therefore, no jus disponendi ever in-fiom your obligation to deliver the horse to me, tended to be exercised, but throughout which you have paid in good faith to one because this duty is a debitum certi corporis, the defendant had adopted the title of whom you had reason to believe to be authoCollinson, and intended to act in fur-rized by me to receive it. It is not the same therance of it. The delivery to Dale with respect to debita generis, as of a sum of was a mistake as to Dale's employer, money. With regard to these it cannot be occasioned by the negligence of Collin- said that the thing due is at the risk of the creditor, inasmuch as it cannot precisely be son and the plaintiffs, in not giving no-determined what is the thing due. For this tice to the defendants of the different reason, though the debtor of a sum of money sub-sales; until receiving which, it is clear should lose by an irresistible force the coin that the defendants were justified in treating he had destined for the payment of this sum, be Collinson as the owner. Townsend v. is not discharged from the debt. For the same reason, payment to a person Inglis, ante, 310. There was, there- whom the debtor, bonâ fide, and without any

(a) See the last note.

Peter, the bearer of the note.

2 A

The note is

Manning also urged that as the oil the nature of the contract itself. The had neither been delivered nor paid thing to be delivered being the subject for, both of which he contended were of the obligation, it is obvious that when necessary to pass the property, the the former cases do exist, the obligation plaintiff's were not in a condition to itself must be at an end (b).” sue as owners. It was true that in The rules of the civil law are quite many of the late cases it had been clear on these points (c), and are not to assumed that, where the statute of frauds be considered as positive regulations, but did not interfere, the property passed as necessary deductions from the nature by the bargain and sale; but these ofthe contract emptio-venditio, and,therewere cases in most of which the ques- fore, co-extensive in their obligation with tions of property did not fairly arise, civil society itself. "If the vendor is the real question being, at whose risk fully competent to dispose of the thing the property stood; the answer to sold, whether as principal or as agent, which depends upon very different the effect of delivery is to pass the proprinciples. "It is an established prin-perty in the thing sold to the purchaser, ciple," says Pothier (a), "that as soon as provided the purchase money is paid, or the contract of sale is complete, the the vendor chooses to give credit. thing sold is at the risk of the pur- "The contract of sale cannot of itself chaser, even before delivery, so that if produce this effect. Contracts can form during this interval, it perishes without only personal engagements between the the fault of the vendor, the vendor is contractors. A delivery, made in pursudischarged, whilst the purchaser is ne-ance of the contract can alone transfer vertheless still bound to pay the stipu- the property. It follows, that if the prolated price. The discharge of the prietor, after selling an article to A., withvendor, under these circumstances, out delivering it, should be so dishonest from his obligation to deliver, de-as to sell and deliver it to B., a subsequent pends upon another principle, namely, bonâ fide purchaser, the property would that every obligation certi corporis is be transferred to B. A. would only discharged, when the thing itself ceases have a personal action against the vento exist. This principle arises from dor for his damages and loss resulting negligence on his part, believes to be autho- from the non-execution of the contract, rized by the creditor to receive the amount, will and has no right in the property, as not discharge the debtor where no such autho- against B. He has neither jus ad rem rity was in fact given, unless the error was oc-nor jus in re. Another consequence of

casioned by the act of the creditor himself."

Pothier, Traité du Contrat de Change, num.

168.

And see the same distinction ably explained, Scaccia de Commerciis, 384, pl. 340, &c

edit. 1620.

the vendor may, before delivery, seize the this principle is, that the creditors of property even where the price has been paid, and the purchaser, in this case, has only an action against his vendor (d)." (a) C'est un principe établi au titre du Digeste de periculo et commodo rei venditæ, qu'aussi-tôt (b) Quamvis enim alioquin verum sit venditoque le contrat de vente est parfait la chose ven- rem hactenus teneri ut rem emptori habere lidue devient aux risques de l'acheteur, quoi-ceat, non etiam ut ejus faciat. D. 19. 1. 30. 1. qu'elle ne lui ait pas encore été livrée; de ma- Qui vendidit necesse non habet fundum empnière que si pendant ce temps elle vient à périr toris facere; ut cogitur qui fundum stipulanti sans la faute du vendeur le vendeur dévient spospondit. D. 18. 1. 25. 1: quitte de son obligation et l'acheteur n'est pas pour cela quitte de la sienne, & n'est pas moins obligé de payer le prix convenu.

Que le vendeur soit quitte de son obligation, lorsque la chose vendue est périe sans sa faute, c'est une conséquence d'un autre principe, que toute obligation d'un corps certain s'éteint lorsque la chose cesse d'exister; Traité des Obligations, part. 3, chap. 6. Ce principe est pris dans la nature même des choses; car la chose due étant le sujet de l'obligation, il s'ensuit que lorsqu'elle cesse d'être l'obligation ne peut plus subsister, ne pouvant pas subsister sans sujet. Pothier, Traité du Contrat de Vente, num. 307. And see I. 3. 24. 3.; D. 18. 6. 8.

(c) Quod vendidi non aliter fit ACCIPIENTIS quam si aut pretium nobis solutum est, aut satis eo nomine factum; vel etiam fidem habuerimus emptori sine ullâ satisfactione. D. 18. 1. 19. And see the last note.

(d) Lorsque le vendeur est propriétaire de la chose vendue, & capable de l'aliéner; ou s'il ne l'est pas, lorsqu'il a le consentement du propriétaire, l'effet de la tradition est de faire passer en la personne de l'acheteur la propriété de la chose vendue, pourvu que l'acheteur en ait payé le prix, ou que le vendeur ait suivi sa foi.

Le contrat de vente ne peut pas produire par lui-même cet effet. Les contrats ne peuvent

USE AND OCCUPATION.-VARIANCE.

371

The common law adopted the prin-it. It is afterwards agreed that she shall ciple of the civil law on this subject. take up the bills which he has accepted Thus in an action for breaking close in part payment of the purchase money, and taking wheat which defendant had and that the lease shall be assigned to bought but not paid for, the question was, her, she remains in possession and does whether in the defendant's plea stating not take up the bills, and marries the the purchase, he ought to have averred defendant who occupies the house, A. payment. BRYAN said, that it was ne- cannot, in the absence of communiany cessary; because, though the property cation respecting rent, recover for use passed by the bargain, a special property and occupation. Keating v. Bulkely, remained in the vendor like that of les-2 Stark. 419. Abbott, C. J. 1818. sor of sheep. LITTLETON,-"I can never admit that the property is in him who purchases verbally without payment. For it is not an absolute bargain, but upon a condition in law, namely, that if he pays, it shall be good; if not, it shall be void (e)."

The modern rule that the property

VARIANCE.

passes by the bargain without either A. WHAT SHALL BE MATTER OF AL

payment or delivery, appears to be an anomaly arising not from the deliberate adoption of a new standard of decision, whether good or bad, but from an unintentional misapplication of an admitted principle.

USE AND OCCUPATION.

a

B. NATURE OF OCCUPATION. A. having contracted for the lease of house, permits his mistress to occupy que former des engagemens personnels entre les contractans: ce n'est que la tradition faite en conséquence du contrat, qui peut transférer la propriété de la chose qui a fait l'objet du contrat, suivant cette règle: Traditionibus non nudis conventionibus, dominia transferuntur, L. 20, Cod de pact.

LEGATION, AND WHAT MATTER

OF DESCRIPTION.

The maker of a promissory note, by a paymemorandum at the foot makes it able at a particular place, an allegation, (after stating the promise to pay in the usual manner) that the defendant then and there made the note payable at the particular place, does not amount to a misdescription of the note. Hardy v. Woodroofe, 2 Stark. 319. Abbott, J. 1818.

And see ante, BILLS AND NOTES, D. (b); ibid, pl. 160, 167, 168, 169, 170, 171; Butterworth v. Lord Le Despencer, 3 M. & S. 150.

A trader, in a commission of bankruptcy issued against him, is described as a money scrivener only. It is nevertheDe là il suit que si le propriétaire d'une less competent to a plaintiff to support chose, après l'avoir vendue à un premier ache- the commission by proof of any species teur sans la lui livrer, avoit la mauvaise foi de of trading, notwithstanding the omission second acheteur que la propriété seroit trans- of the general words dealer and chapférée; L quoties 16, Cod de rei vindic. Le man.

la vendre & livrer à un second, ce seroit à ce

Smith v. Sandilands, Holroyd, J.

premier n'auroit qu'une action personnelle Gloucester Summer Assizes, 1819. 1 contre le vendeur pour ses dommages & intérêts Gow, résultans de l'inexécution du contrat; & il ne pourroit la repéter contre le second acheteur qui l'auroit achetée de bonne foi, inscius pri- B. in

oris venditionis.

De là il suit pareillement que les créanciers du vendeur peuvent saisir la chose que

The same point was ruled by Wood,
Winches-

ter Spring Assizes, 1820.

SUFFICIENTLY PROVED.

leur débiteur a vendue, avant qu'il l'ait livrée, B. MATTER OF ALLEGATION, WHERE quand même l'acheteur en auroit payé le prix ; l'acheteur, en ce cas, n'a qu'une action contre son vendeur, & n'a aucun privilege sur cette chose. Contrat de Vente, No. 318-19-20.

An allegation in a declaration that a

(e) P. 17. E. 4. fo. 1 & 2, pl. 2; S. C. cited bill of exchange was presented for pay

and S. P. Plowaen, 11, b.

ment by I. S. does not render it incum