author: By the Court. Woodruff, J.

text:
    John Purchase v. Mahlon Mattison, et al.
    When the drawer of a cheek stops its payment at the bank on which it is drawn, he cannot object to a recovery of its amount by the holder, on the ground that notice of non-payment was not given to him.
    Where in such a case the plaintiff averred in his complaint that actual notice of non-payment was given, and the defendant, in his answer, averred that the defendant had stopped payment of the checks, and proof thereof was given on the trial without objection, the court will not entertain the objection that the plaintiff, instead of averring in his complaint notice of non-payment, should have set forth the facts excusing such notice.
    Under such circumstances, the ease is at most one of mere variance between the complaint and the proof, and as the answer itself shows that the defendants could not have been misled, the variance must be disregarded.
    When the plaintiff, in the complaint, avers facts amounting to an excuse for not giving notice of non-payment, and proves such facts on the trial, he is entitled to recover, although he has also averred notice and gives no proof thereof. This latter averment may, and ought to be regarded as surplusage.
    The rejection of evidence, which, although in its nature competent to establish the fact proposed to be proved, if wholly irrelevant to the issues made by the pleadings, is not a ground of exception.
    Where a plaintiff shows a sufficient legal title in himself to the cause of action in controversy, the non-joinder of a third person as plaintiff who has an interest in the recovery, is waived when not set up by answer or demurrer.
    When a.-witness is cross-examined as to matters collateral to the issues, the cross-examining party is bound by his answers, and is not allowed to contradict in order to discredit him.
    Negotiable paper lent or advanced by the maker for the accommodation of the borrower, but without restriction as to its use, is good in the hands of a transferree, though received in payment of a pre-existing debt.
    A check, payable on demand, advanced to a third person, in consideration of his agreement to do or perform some act beneficial to the maker at a future day, is not an accommodation check, nor without consideration, and it may be collected by the transferree without proof on his part that he paid value therefor, and without proof that such agreement was performed.
    (Before Slosson and Woodruff, J.J.)
    Jan. 14 ;
    March 21, 1857.
    This case came before the General Term upon a verdict taken subject to the opinion of the court on a case to be made, and ordered to be heard in the first instance at the General Term.
    The cause was tried before Oakley, Chief-Justice, and a jury, in November, 1856.
    The action was brought upon two checks drawn by the defendants, as partners, by their firm name of Mattison & Go., upon the Mechanics’ Bank, dated August 13th, 1856, payable to bearer, and each for the sum of two hundred dollars. The complaint, among other things, stated presentment of the checks, non-payment, and notice to the defendants, and also that, before such presentment, the defendants had stopped the payment, and directed the officers of the bank not to pay them.
    The defence set up by the defendants in their answer is, that the checks were obtained from the defendants by one Solinger, .and others, fraudulently, without consideration, and with a preconceived intent on their part to cheat the defendants.
    That the checks were intended to be advances of money under an agreement 'between Solinger and others, and the defendants, entered into, under representations on the part of Solinger and others, wholly false when made, and promises not intended to be performed, and which were not performed by them.
    That the checks were passed by Solinger, and others, -to. one Wheaton, a partner, or interested in business with the plaintiff, and by Wheaton to the plaintiff.
    That neither Wheaton nor the plaintiff paid any value or parted with any consideration whatever for or on the faith of the checks; and that they knew the purposes for which they were given, and that they were being diverted from the purposes for which they were given, and that the checks were founded upon no consideration.
    And that the plaintiff, when he received the checks, knew that the payment thereof had been stopped, and received them in order to recover the amount under the appearance of a Holder in good faith.
    The answer then denies that the plaintiff is the owner and holder of the checks.
    And also denies that the defendants have received notice of non-payment, or that notice of non-payment was given as alleged in the complaint.
    Upon the trial, the plaintiff produced, proved, and read in evidence the checks declared on, and proved that on the morning of the day ensuing their date, they were presented at the bank upon which they were drawn by the said Erastus Wheaton, who received them from Solinger for cattle sold by him the previous week for the plaintiff, and that payment was refused, the answer being, that payment had been stopped, and that on the same day he saw one of the defendants, and was told by him that he had stopped the payment of the -checks.
    The defendants’ counsel, on his cross-examination of Wheaton, addressed questions to him to learn the nature of his connection with the plaintiff, and Wheaton denied that he was in partnership with the plaintiff, but represented that he acted as the plaintiff’s agent.
    And Wheaton testified, on such cross-examination, that he received the checks in part payment of the sum of $915, which was due to the plaintiff for cattle sold to Solinger on the 6th of August, and with $315 cash, also received at the same time. The amount was credited to Solinger on the plaintiff’s book as a payment, pro tanto, of the $915. Upon this proof the plaintiff relies.
    The defendants examined a witness for the purpose of showing the alleged fraud and want, of consideration,..and.h.e stated the particulars of a settlement between the defendants and Solinger on the evening of the 12th of August, and that Solinger wanted an advance of $500, and that the defendants kept a slaughtering-house for the accommodation of butchers who had no slaughterhouse of their own, and that for this privilege the defendants received the feet of cattle slaughtered there, and also the first right to buy the hides and fat.
    That on such settlement, and after the payment of $15.70, there remained due to the defendants $100.
    That Mr. Mattison consented to make the advance “ if Solinger would turn in' the usual amount,” and that the $400, which, together with the balance due, $100, would make up $500 for the next week, was to be given by the defendants next morning in two checks.
    And he states explicitly, “ The consideration for the checks was the agreement of Solinger and others to buy cattle and turn them into the defendants’ place, slaughter them there, and turn in the hides and fat, and the balance due over and above this to the defendants -was to be paid in the coming week.”
    The checks were accordingly given the next morning (the 13th) by the witness, (the defendants’ clerk or agent,) who took them to Solinger and his associates, before referred to.-
    Whether Solinger, and others, purchased any cattle, or how many they purchased and killed at the defendants’ slaughterhouse ; whether any or how much fat, etc., they “ turned in” that week to the defendants does not appear; nor whether any or what balance was due to the defendants at the close of the week’s business was not shown.
    Ho evidence was given that the parties, Solinger and his associates, did not perform the agreement upon which the checks were given—though the defendants gave in evidence that when his clerk or agent took them the checks, it was stated by one of them that he was bargaining—had ten head of cattle in price, that he was in treaty for them.
    In the further progress of the trial the defendants’ counsel put various questions to witnesses whom he called for the purpose of showing that Wheaton was a partner with the plaintiff
    Upon objection by the plaintiff’s counsel the questions were overruled, and the defendants’ counsel excepted.

      G. Stevenson, for the plaintiff.

      John Graham, for the defendants.
   By the Court. Woodruff, J.

The ground of defence we deem it material first to notice, is, that the plaintiff did not prove service of notice of non-payment of the checks, as alleged in the complaint. If we deemed it necessary to rest this objection upon the question whether such notice was proved, it would be only giving a reasonable interpretation to the testimony of the witness Wheaton, to say that his conversation with one of the defendants imported notice of the non-payment of the checks. But it was not necessary to prove notice under the pleadings, for two reasons :—

First. Had the plaintiff simply averred demand, refusal and notice, no actual notice was essential to the plaintiff’s right to recover, if the defendants had themselves stopped the payment of the checks. It is claimed that, under such an averment, the plaintiff was not at liberty to prove facts which dispensed with the necessity of giving notice. Such was not the rule before the Code. (Williams v. Matthews, 3 Cow. 252; Ogden v. Conley, 2 John. 274; Garvey v. Fowler, 4 Sand. 665.) And although it was, in the case last cited, deemed that under the Code a different rule would prevail, so far that, as a rule of pleading, it must be said that all the facts relied upon must be stated; yet, when the excuse for not giving notice is actually stated in the defendants’ answer, viz.: that payment had been stopped, and when evidence to that effect was also given on the trial, without objection, we should be yielding too much to what at most would be, under such circumstances, the merest technicality, if we were to say that the plaintiff was not entitled to recover. In such circumstances it would be a mere case of variance between the complaint and the proof. The answer of the defendants shows that he was not misled thereby. The variance might be either disregarded or the complaint amended. (Code, § 169.)

But, Second. The objection had no weight, because the plaintiff has, in his complaint, averred that the defendants stopped the payment of the checks, and this being both admitted and proved, the necessity of showing notice of presentment ceased, and what is said in the complaint, on the subject of actual notice, may and ought to be disregarded as surplusage.

The plaintiff may say, I rested my claim on the fact that the defendants stopped the payment of the check, and is as well entitled to say this as the defendants are to say he rested his case on an averment of actual notice.

He averred both. If either was proved he is entitled to recover. One is well established; yea, more, it is admitted. It would be trifling with justice to say that he may not have judgment because he did not also prove the other.

The next ground of defence, we think, was wholly unsupported by the evidence. It was proved by the defendants that the consideration for the checks was the agreement of Solinger. and others to buy cattle and turn them into the defendants’ place, slaughter them there, and turn in the hides and fat. This was a sufficient consideration for the checks, and wholly disproves the allegation in the answer that the checks were without consideration. The checks were valid in the hands of Solinger, etc., the moment they were delivered to them.

The evidence fails to establish any fraud. It was not shown that Solinger and others did not perform their agreement; and if it had so appeared, it is not clear but that the very fact that the defendants stopped the payment of the checks prevented such performance.

It is not apparent that it made any difference to the defendants, so long as Solinger performed the agreement, whether the checks were used to pay for the purchases made the previous week or for the week then running.

Uor does the answer place the defence upon the ground of any misappropriation of the checks, or allege that they were to be applied to any specific purpose.

It is not, in this view, necessary to consider how far the acceptance of the checks as cash, in payment for the bill of the previous week, and crediting the same as cash in the plaintiff’s books, made the plaintiff a bona fide holder for value.

Under the facts proved, we have no doubt of his right to recover.

The other exceptions taken by the defendants relate to the exclusion of certain testimony which-the defendants sought to'elicit,'" and which they claim was competent proof that Wheaton and the plaintiff were co-partners.

We are clearly of opinion, that whether the testimony offered was, in its nature, competent or not, the evidence was wholly irrelevant and improper.

The non-joinder of Wheaton was not set up as a defence, by' answer or otherwise, and, therefore, as an objection to the plaintiff’s recovery, was waived.

The fact was wholly without controversy that Wheaton received the checks as the agent of the plaintiff. There was not the slightest proof that either Wheaton or the plaintiff had any .knowledge' of the origin or consideration of the checks, or the terms upon which they were drawn.

Whether, therefore, Wheaton was interested with the plaintiff, as a partner or otherwise, was wholly immaterial to any issue made 'by the pleadings, or to any stats of facts proved on the trial.

E it be suggested that such evidence would tend to contradict Wheaton, the answer is, that it was on the defendants’ cross-examination that Wheaton had denied the partnership, and in that particular the defendants’ examination of Wheaton was to a matter purely collateral to the issue and collateral to the facts which it was material to prove, and which he had proved. E the defendants thought proper to examine Wheaton as to such matters, he was bound by his answers, and could not contradict them for the purpose of discrediting the witness. In no aspect of the case, as the pleadings and proofs stood before the court, was the testimony material and proper.

It must not, however, be understood by this that if the testimony had been relevant, that the questions overruled were competent. We are inclined to concur in the ruling of the Chief-Justice in that respect.

We find no just grounds for interfering with the verdict, and must, therefore, direct that judgment be entered for the plaintiff for the amount of his verdict, with costs.


source: Caselaw Access Project

author: By the Court. Hoffman, J.

license: Public Domain

text:
    Samuel Stevens, and others v. The Commercial Mutual Insurance Company.
    The policy of insurance on which this action was founded, contained a warranty that the vessel insured should not use any foreign port or ports in the Gulf of Mexico, but by a memorandum afterwards indorsed on the policy, the vessel was permitted to use the port of Laguna for one voyage. She sailed on the voyage thus permitted, but on her arrival at Laguna was not permitted to enter and land cargo until she had made an entry at some neighboring port in Mexico. She then proceeded to Sisal, a port in the Gulf of Mexico, about seventy leagues distant from Laguna, and after her arrival there, was driven ashore in a storm and totally lost.

      Held, that the voyage from Laguna to Sisal, whether the custom regulations that prevented an entry at Laguna were or were not known at its commencement, was not protected by the memorandum on the policy, and was therefore a plain breach of the warranty in the policy itself, by which the defendants were discharged from the loss.
    Complaint dismissed, with costs.
    (Before Hoffman, Slosson and Woodruff, J.J.)
    January 15;
    March 21, 1857.
    Case upon a verdict in favor of the plaintiffs, subject to the opinion of the court at General Term, to be heard there in the first instance, with liberty to enter a non-suit if the court should be so advised, and with liberty to turn the case into a bill of exceptions.
    The following are the material facts of the case, as established by the evidence on the trial and not disputed:—
    Messrs. Brett, Vose & Co. procured for the plaintiffs a policy of insurance upon time on the brig Inda, on account of whom it might concern, from the 3d of October, 1852, to the 3d of October, 1853, in the amount of $5000. The policy contains the following clause :■ —“ Warranted not to use ports and places in Texas, except Galveston, nor foreign ports and places in the Gulf of Mexico, nor places on or over Ocrocoke Bar.”
    On the 6th of January, 1853, an indorsement was made on the policy to the effect, that the sale of the brig to Stevens, Peabody & Co. should not prejudice the insurance.
    On the 7th of October, 1853, an indorsement was made on the policy, extending it for a further term of one year.

      On the 8th of November, 1853, the following indorsement was also made:—“November 8th, 1853, for the additional premium of two per cent/ the brig ‘ Inda’ has permission to use the port of Laguna for one voyage, without prejudice to this insurance, additional premium $100.”
    The brig sailed from Martinique, in ballast, on the 11th of December, 1853, under a charter, bound for Laguna, to take in a cargo there for Marseilles. She arrived at Laguna on the 25th of December, 1853, but the custom-house officers would not allow her to load there until after she had been entered at a neighboring port, Laguna not being then a port of entry.
    Laguna had been previously to the 1st of June, 1853, open to foreign vessels, but was closed by the Mexican regulations of the 1st of June, 1853, and these regulations were in force when the Inda arrived. After advising with merchants there, the captain chose Sisal as the most convenient port to go to for the purpose of entering the vessel, and sailed there for this object.
    It had been customary after the regulations of the 1st of June, 1853, for vessels to be entered at some neighboring port, before using Laguna.
    The brig might have entered at Vera Cruz, Talasco, or Gampeachy, but there were objections to all these ports, and the cholera was prevailing at Oampeachy, which rendered a visit there extremely perilous.
    The brig arrived at Sisal about seven o’clock, A. M. The master went ashore with the custom-house officers to enter her, and in the afternoon of the same day the brig was driven ashore in a squall, and became a total loss.
    No question is made as to the preliminary proofs, nor as to the interest of the plaintiffs in the insurance.
    Sisal is about seventy leagues from Laguna, Oampeachy about forty, and Talasco about the same distance. Sisal is near the north-western Cape of Yucatan. It would be the first port made, of the three named, on a voyage from Martinique to Laguna. A vessel from Sisal would run down the Gulf nearly south to Cam-peachy, and thence on about the same course to Laguna. Talasco lies farther west, the coast so tending from Laguna.
    Of the adjacent ports of entry, Vera Cruz was the remote west, and was dangerous in the winter. To reach Talasco, it would have been necessary to proceed over a dangerous bay, and go up a river a considerable distance. At Campeachy, the cholera was raging, and it seems to have been a judicious act in the master to choose Sisal as the place of entry.

      F. B. Gutting, for the plaintiff.

      D. Lord, for the defendant.
   By the Court. Hoffman, J.

This case appears to me to be a clear one. There was an express warranty against using any foreign ports or places in the Gulf of Mexico. There was then an exception or qualification of that warranty by permission to use the port of Laguna for one voyage. The exception is limited to that port.

If the parties had knowledge of the Mexican port regulations when the vessel sailed, then the voyage to Laguna, with the necessity of going to another port in the Gulf, and actually passing by Sisal on the way and returning to it, was a plain infringement of the warranty. But if all the parties were ignorant of the regulations, then the question is, whether the insurers, who guarded themselves with a warranty, and made an exception of one port, can be held liable when the vessel reached that port, and was compelled, by these regulations, to go to another ?

It cannot be imagined that the insurers intended to cover a voyage in which the vessel had to retrace her path seventy leagues to the northward, in the Gulf of Mexico, and to return again the same distance to Laguna. The-warranty rejects it, and there is nothing in the case to justify an inference of such a permission.

I am of opinion that the complaint should be dismissed.

Judgment accordingly.


author: By the Court. Duer, J.

text:
    Cyrus W. Field v. Darius B. Holbrook.
    A court of equity has jurisdiction to order an instrument in writing to be delivered up and cancelled, upon the ground that it was either void in its origin, or has been rendered so by subsequent events.
    The cases in which this jurisdiction may properly be exercised are the following:
    1. When the instrument is alleged to be void upon grounds of which a court of equity alone has cognizance.
    2. When the instrument, if uncancelled, would throw a cloud upon the plaintiff’s title to such estate.
    3. When the instrument is negotiable in its character, as a bill of exchange or promissory note; and, lastly,
    4. When the plaintiff claims to have a defence to the instrument, valid in law, but which he is in danger of losing if the adverse party is' suffered to delay the prosecution of his claim.
    These cases, although differing in their circumstances, rest substantially on the same principle, namely, that if the relief sought be denied, the plaintiff will sustain a present, or be exposed to the hazard of a future, injury and loss. Hence, the relief prayed for will be denied when it is certain that the plaintiff will sustain no such loss, and be exposed to no such hazard if the instrument is suffered to remain in the hands of the adverse party.
    Thus, the relief will not be granted when the instrument of which the surrender and cancellation are claimed, is on its face plainly illegal and void; nor when, it is a deed which, from its nature and contents, can throw no cloud upon the plaintiff’s title, nor when a negotiable instrument, it is merged in a judgment.
    In all these cases the relief is denied upon the single ground that its denial can work no actual prejudice to the plaintiff.
    If the mere possibility that a void instrument may be used for vexatious purposes was a sufficient reason for ordering it to be delivered up and cancelled, the relief ought to have been granted in every case in which it has been denied, for in all this possibility existed.

      Held, in the case before the court, that as the facts upon which, as a condition precedent, the validity of the contract held by the defendant depended, had never occurred, the plaintiff was in no more danger of a recovery against him upon the contract than had it been on its face illegal and void.

      Held, therefore, that the plaintiff was not entitled to demand that the contract should be given up, and that the demurrer to the complaint was well taken.
    Order overruling demurrer reversed, with liberty to plaintiff to amend.
    (Before all the Judges.)
    March 7 ;
    March 14, 1857.
    Appeal by defendant Holbrook from, an order at Special Term overruling demurrer to the complaint.
    The following are the pleadings:

      Cyrus W. Field, plaintiff, complains and alleges—•
    “ 1st. That on the 24th day of March, 1854, he, together with Chandler White, acting on behalf of themselves and their associates, Peter Cooper, Moses Taylor, and Marshall 0. Roberts, entered into an agreement with Ambrose Shea, as agent of Darius B. Holbrook and of Holbrook & Co., a firm consisting of the said Darius B. Holbrook and of---Holbrook, as the plaintiff is informed and believes, of which agreement a copy is hereto annexed, marked A.
    “2d. That the said Holbrook afterwards caused to be delivered to the plaintiff and his associates an account of the said money, alleged to have been paid by him to them, which they allege to amount, with interest up to the- 1st of August, 1854, to the sum of fifty-one thousand eight hundred and twenty dollars eighty cents.
    “ 8d. That on the 29th day of August, 1854, the plaintiff and his said associates caused to be tendered on their behalf to the said Holbrook five hundred and eighteen shares of the capital stock of the Hew York, Uewfoundland, and London Telegraph Company, the par value of each share being one hundred dollars, together with twenty-three dollars and fifty cents, and demanded of him the bonds and stock aforesaid; but the said Holbrook did not receive the said shares, or money, or deliver up the said bonds and stoók.
    “ 4th. That as the plaintiff is informed and believes, the said Darius B. Holbrook and-Holbrook had not, nor had either of them, during the said month of August, nor at any time since, the bonds and stock of the Uewfoundland Electric Telegraph Company.aforesaid, or the larger part thereof.
    “ 5th. That, notwithstanding the said tender and refusal, and the inability of the said Darius B. Holbrook and-Holbrook to comply with the terms of the said agreement, the said Darius B. is now continually annoying the plaintiff and his associates with his pretended demands upon them, under pretence of the said agreement, and as the plaintiff is informed and believes, threatens to bring suits against them and against the said Uew York, Uewfoundland, and London Telegraph Company in this country and in Uewfoundland.
    “ 6th. That the plaintiff has not been able to obtain the consent of his said associates to be joined with him as plaintiffs in this action, and for that reason they are made defendants.

      “ 7th. That the plaintiff and his said associates are all stockholders in the said New York, Newfoundland, and London Telegraph Company.
    “ Wherefore the plaintiff demands judgment that the said agreement be delivered up to the plaintiff to be cancelled, and that, in the mean time, the said Darius B. Holbrook and-Holbrook, and each of them, be enjoined from commencing or prosecuting any action or actions, suit or suits against the plaintiff and his associates, or the said New York, Newfoundland, and London Telegraph Company upon the said agreement, or for any other cause of action arising out of the said agreement, or connected therewith, or related thereto, and from taking any proceedings against the plaintiff, legal or otherwise, for any matter connected with the interest of the said D. B. Holbrook and-— Holbrook, or either of them, in the said Newfoundland Electric Telegraph Company, or the claims of them, or either of them, against the said company.”

      “City and County of New York:

    “ Cyrus W. Field, the above-named plaintiff, being sworn, saith that the foregoing complaint is true of his own knowledge, except as to those matters which are therein stated on his information and belief, and as to those matters that he believes it to be true.
    “ Cyeus W. Field.”
    “Sworn, April 8th, 1856, before me,
    “ P. J. Molloy, Commissioner of Deeds.”
    “ St. Johns, March 24th, 1854.
    “ Ambrose Shea, Esq.,
    “ Dear Sir:—In compliance with the verbal understanding had with you we stated that we have agreed with you, as agent of Messrs. Holbrook & Co. and D. B. Holbrook, to give them, respectively, stock at par in the New York, Newfoundland, and London Telegraph Company, for the actual amount of money paid, by them (and interest at seven per cent.) for the Newfoundland Electric Telegraph Company, and actually received by that company, such stock to be given to them on their demanding it of us in New York at any time in the month of August next, and on their surrendering to us aE the bonds and stock received by them from said Newfoundland Electric Company.
    “ Your-obedient servants, “Chandler White,
    “Cyrus W. Field,
    “ On behaE of the associates.”
    “I accept the above terms on account of Messrs. Holbrook & Co., and D. B. Holbrook.
    “ St. Johns, Newfoundland, March 31st, 1854.
    “ (Signed,) A. Shea.”
    The defendant, Darius B. Holbrook, demurs to the complaint of the plaintiff, - and states the foEowing grounds of demurrer:
    “1st. That said complaint does not state facts sufficient to constitute a cause-of action.
    “ 2d. That it does not state facts sufficient to entitle plaintiff to the reEef demanded in the complaint.
    “ 3d. That it does not state that plaintiff, or the associates, (of whom he ‘is one,) offer, or are ready, or able, or willing, or have, since the 29th day of August, offered, or been ready, or able, or willing to-pay this defendant, or the firm of Holbrook & Co., the stock in said complaint mentioned, to the amount of fifty-one thousand doEars and more.
    - “ 4th. That plaintiff does not offer to "fulfill, on the part-of himself of of his associates, the contract in said complaint mentioned.
    “ 5th. That said complaint does not state to whom, (which of said defendants Holbrook,) said tender was made, and does not state that it was made to this defendant, or to the firm of Holbrook-& Co.
    “ 6th. The contract appears from the complaint to have been made in Newfoundland, and the complaint states no sufficient cause for compelling defendants to come here to litigate their rights, or why they should not be aEowed to prosecute their claims there, as they must be advised.
    “ 7th. The parties jointly interested with the plaintiff, namely, Cooper, Taylor, Roberts, and White, in the complaint mentioned, are not joined as plaintiffs, and there is, in this respect, a want of parties plaintiff herein."

      Hoffman, J., gave the following reasons for his decision:—
    Field, the plaintiff, with Chandler White, on behalf of themselves and their associates, agree with Holbrook & Company, and D. B. Holbrook, to give them stock, at par, in a certain telegraph company, for the amount of money paid by them for another company. The condition of the contract was that the new stock should be given, on Holbrook & Company and D. B. Holbrook demanding it in New York in the month of August 'ensuing,, and upon surrendering all the bonds and stock received by them-of the other company.
    This contract is dated 31st of March, 1854.
    The plaintiff states a tender on the 27th of August, 1854, on behalf of himself and his said associates, to said Holbrook, of five hundred and eighteen shares of the capital stock of the company, the par value being $100 a share, together with $23.80 in cash, and that they demanded of him the bonds and stock of the other company which were to be surrendered.
    An account had been rendered by Holbrook prior to this tender of the moneys paid, amounting, with interest, on the first of August, 1854, to the sum of $51,823.80.
    The plaintiff, on the ground of this tender and Holbrook’s refusal to fulfill the contract, (and also upon an allegation of Holbrook’s not having the bonds and stock of the former company to surrender,) demands a cancelment of the agreement, or, at any rate, an extinguishment of it as to himself, and an injunction to stay suits threatened against him.
    The other associates having declined to be made plaintiffs, are made defendants.
    The chief question raised is this: The plaintiff is under a contract with the defendants Holbrook, which, he says, their default enables him to cancel and remove from embarrassing him. Is he bound to wait until these defendants think proper to sue him, and then resist, and defeat them ? May he not compel them to free him from it now, or to litigate the case with him at once?
    The cases which relate to the rescission and cancellation of agreements are more applicable to the present question than bills quia timet. These authorities are collected to a considerable extent by Justice Willard. (Eq. Jurisprudence, p. 302.)
    I think there is a manifest equity with the plaintiff to bring the question of his responsibility to a close. It may not be certain that his right to rescind the contract was absolute; some equity possibly may rest with the defendants. (Parsons on Contracts, 191, and notes M. and 1ST.) I admit that I am proceeding upon the application of a general principle, for I have not met with a case in point.
    Demurrer overruled. Judgment for plaintiff, with costs, and liberty to answer in twenty days.

      D. Lord, for appellant.

      D. D. Field, for respondents.
   By the Court. Duer, J.

It was admitted upon the argument, by the learned counsel for the defendants who have demurred, that, admitting the allegations in the complaint to be true, and the demurrer admits their truth, the written contract of which these defendants retain the possession has been rendered void in their hands, from their failure and inability to comply with its provisions, within the time limited for their performance.

The main question to be determined, therefore, is, whether, upon this admitted statement of facts, the jurisdiction of the court can be properly exercised, by ordering the contract to be delivered up and cancelled ? The question is, in a measure novel, and possesses a more than ordinary interest and importance.

It cannot be denied that, in numerous cases, the Court of Chancery has exercised the jurisdiction that is questioned, by ordering an instrument in writing to be delivered up and cancelled, upon the ground that it was either void in its origin, or had been rendered so-by subsequent events, and it is just as undeniable that, in many cases, in which the instrument in question was admitted to be absolutely void, the court has refused to compel its surrender; and although the cases there referred to seem to be opposed, it must also be confessed that they carry with them an equal weight of authority. As the decisions proceed upon distinct grounds there is, in reality, no conflict between them; and the inquiry," therefore, is, which, as most applicable to the case before us, are we now bound to follow ? and this can only be answered by ascertaining the reasons upon which they are respectively founded.

I am convinced, by an attentive examination of the authorities, that the cases in which, alone, the jurisdiction of which the exercise is now claimed can be said to be established and undoubted, may be reduced to the following classes:

1st. When the plaintiff alleges that the instrument, which he prays may be surrendered or cancelled, is void upon grounds of which a court of equity alone can take cognizance; in fewer words, when he sets up a purely equitable defence.

2d. When the instrument is a deed, or other document, concerning real estate, which, although inoperative, if suffered to remain uncancelled would throw a cloud upon the title of the plaintiff to the lands which it embraces, or to which it refers. (Pierce v. Webb, 3 Barb. Ch. R., 16 ; Jackman v. Mitchell, 13 Vesey Rep. 581; Hayward v. Dunsdale, 17 Vesey Rep. 111; Attorney-General v. Morgan, 2 Russell Rep. 306; Petit v. Shephard, 5 Paige Rep. 493; Van Doren v. The Mayor of New York, 9 Paige’s Rep. 388; 2. Story’s Eq. Jur. 6th ed. § 700, n. (2), and other cases there cited.)

3d. When the instrument is negotiable in its character, as a bill of exchange, etc., and the putting- it into circulation -would be a fraudulent act. (2 Story’s Eq. Jur. ut sup. § 700, n. (1), and cases there cited.)

4th. Where the plaintiff claims to have a defence valid in law, but which rests upon evidence that he is in danger of losing, if the adverse party is suffered to delay the prosecution of his claims. (Hamilton v. Cummings, 1 John. Ch. R. 520, etc.; 2 Story’s Eq. Jur. ut sup. n. (3), and cases cited.)

Although these several classes differ widely in their special circumstances, yet, when examined, it will be found that in all the decisions rest substantially upon the same grounds, and these grounds are, that the plaintiff will either sustain a present, or be exposed to the hazard of a future, injury and loss, should the defendants be suffered to retain the possession of the instrument of which the delivery and cancellation are demanded. They are all, therefore, referable to one common and acknowledged head of equity jurisdiction, the prevention of an injury that might otherwise prove irreparable, and which a court of equity is alone competent to avert or prevent.

That such are the grounds upon which, in these cases, the relief prayed, for has been granted, is still more evident when we advert to the oases in which the same relief has been denied.

• Although there is some contrariety in the earlier eases, the law is now settled that the court will not order an instrument to be delivered up and cancelled which, upon its face, is plainly illegal and void. (Simpson v. Lord Howden, 3 Mylne & Craig, Rep. 97; Pierson v. Elliot, 6 Peters’ Rep. 94; 2 Story Eq. Jur. § 700 [a], and cases cited.)

Nor a deed of lands when it is certain that, from its nature and contents, it can throw no cloud upon the title of the plaintiff. (Cox v. Clift, 2 Comstock Rep. 118.) Nor a negotiable instrument that has been merged in a judgment. (Threlfall v. Sunt, 7 Sim. Rep. 627.) Nor a policy of insurance that had been rendered void by a deviation. (Thornton v. Knight, 16 Sim. R. 509.) And in all these cases the denial of the relief rests upon one and the same ground, namely, that the plaintiff is exposed to no hazard from any future litigation, since it is certain that in no 'action founded on the instrument can a recovery be had against him.

It appears to us that this reasoning applies, in its full extent, to the case before us, and that the decisions last cited must, therefore, govern our own. We are unable to state a distinction. The contract held by the defendants is alleged to be void, from their inability to establish the facts, which they must prove upon a trial, to enable them to maintain their action, and as this inability arises from the non-existence of the facts, it is certain that it cannot be removed, and, therefore, certain that the plaintiff and his associates are exposed to no hazard from any future litigation. They are in no more danger of a recovery being had against them than if the contract were illegal and void upon its face.

It may, indeed, be said that if the defendants shall be suffered to retain the possession of the contract, they may use it for the sinister purpose of harassing the plaintiff and his partners by vexatious suits, but the reply is obvious and conclusive. If the possibility that a void instrument may be vexatiously and maliciously used were a sufficient reason for ordering it to be delivered up and cancelled, it is plain that the relief sought ought to have been granted in every case in which it has been denied, and indeed ought to be granted in every case in which, upon sufficient grounds, the instrument is alleged to be void; for in all such cases that have arisen, or that can arise, the same possibility will be found to exist. We have neither the power nor the disposition, however, to enlarge our jurisdiction as a court of equity by extending it to cases that hitherto it has been held not to embrace. On the contrary, we are convinced that its exercise ought to be strictly confined within the limits that hitherto have been invariably observed. When a suit like the present is entertained, the necessary effect is to transfer a controversy, legal in its nature, from a court of law into a court of equity, and thus to deprive the party who is made the defendant of his legal rights of selecting his own tribunal and his own time for the prosecution of his claims, of having all questions of fact determined by a jury, and of controlling and managing his suit in the exercise of his own discretion; and it seems to us manifest that it is only in cases where reasons of a controlling equity are shown to exist that the exercise by a defendant of these legal rights can be justly restrained.

We cannot believe that a court of equity is bound to interfere whenever a.party liable to be sued upon a written instrument in a court of law chooses to allege that the instriment is void. Such, however, is the naked case before us.

In the early and leading case of Hamilton v. Cummings, (1 John. Ch. Rep. 517-523,) Chancellor Kent, after an elaborate review of the English decisions, arrived at the conclusion, that the power of a court of equity to order a written instrument to be delivered up and cancelled, is discretionary in its nature, and depends for its exercise upon the special circumstances in each case, showing that a resort to the court is necessary or eminently proper. We believe that this is a just view of the law as it still exists, and it necessarily follows that when an appeal is made to this discretionary power of the court, the special circumstances that can alone justify its exercise must be set forth in the complaint, since these are emphatically the facts that constitute the cause of action. Ho such facts, however, are alleged in the present complaint, and we must consequently hold that the demurrer is well taken.

The order at Special Term overruling the demurrer, is, therefore, reversed, and there must be judgment for the defendants, who have demurred, unless the plaintiff shall, within twenty days, serve an amended complaint, pay the costs of the demurrer, and ten dollars as the cost of this appeal. Order accordingly.


text:
    John D. Harris, and another v. George Hart, and another.
    The right of a vendor to stop in transitu goods which he has sold upon credit to a vendee who becomes insolvent, can only be properly exercised while the goods are in the hands of a carrier or middleman in,their transit to the vendee, and before they have come into his actual possession. The simplicity of the rule, however, as laid down in the earlier cases in England, and which, in order to defeat the vendor’s right of stoppage, required an actual delivery to the vendee himself, so as to bring the goods within his corporal touch, has been broken in upon by the latei^decisions, which hold, that in some cases a constructive delivery, and in some an exercise by the vendee of acts of ownership, is sufficient to defeat the right of the vendor.
    But, in the opinion of the court, a fair comparison of the cases, notwithstanding some contradictions, leads to and justifies these conclusions:—
    1. That a mere constructive delivery, though sufficient to entitle the vendor to demand the price of the goods and to place them at the risk of the vendee, does not alone defeat the right of stoppage.
    2. That while the goods are in the course of transportation to the place of destination, or are in the hands of an intermediate agent or warehouseman for the purpose of being forwarded, they are subject to the right.
    3. That they are also subject to the right after their arrival at their place of destination while in the hands of the carrier, or of a wharfinger or warehouseman, for the mere purpose of delivery to the vendee.
    4. That a delivery to the vendee’s special agent, on board a conveyance owned or chartered by the vendee, if the sole purpose of such delivery is transportation to the original port of destination, does not defeat the right of the vendor.
    But the vendor’s right of stoppage is lost in the following cases:—
    1. Where the goods have come into the actual possession of the vendee.
    2. Where, after their arrival at the place of destination, the vendee exercises acts of ownership over them.
    And lastly, where an agent of the vendee, having authority and power to dispose of the goods, exercises like acts of ownership.

      Held, that although the doctrine for which the defendants’ counsel contended, namely, that where the goods purchased, in the course of transportation are detained at an intermediate place, and without further orders cannot again be put in motion, the transitas is at an end, is favored, it is very far from being established by the recent decisions in England upon which the counsel relied.

      Held, that in each of the cases so relied on, there were material circumstances by which each was discriminated from that before the court, and which were alone sufficient to justify the actual decision.

      Held, that in the case under judgment, the transitas was not ended by the temporary detention of the goods at Liverpool by the agents employed to forward them, since the agents had no power to. change the ultimate port of destination as fixed by the vendor and vendee, and there was no proof that any such change was intended by any of the parties. The orders for which the forwarding agents waited, related not to the place of destination, but merely to the time and mode of transportation.

      Held, further, that the transitas was not ended merely by the fact that after the arrival of the goods at New York, they were entered at the custom house and the duties paid, before the plaintiff attempted to exercise his right of stoppage.
    Nor was the transitas ended upon the ground that the goods in question had been previously assigned to the defendants for the payment of debts. An assignee, for the benefit of creditors, is not entitled to protection as. a Iona fide purchaser, but stands in the same condition as his assignor.

      Held, that if there is that conflict between the decisions in England which is alleged, there are strong reasons why the court should follow in preference the more liberal doctrine of the earlier cases.

      Held, that if the decisions upon which the counsel for the defendants relied, are to receive the construction which he gave to them, they are directly opposed to several cases in our own courts which this court deems itself bound to follow.

      Held, that the plaintiffs were entitled to judgment upon the verdict rendered by the jury in their favor.
    Before Duer, Bosworth and Woodruff, J.J.)
    Dec. 12, 1856;
    March 14, 1857.

    Motion on the part of the plaintiffs for judgment upon a verdict in their favor, judgment having been suspended by order of the court.
    The action was brought to recover the possession or value of certain merchandise, in relation to which the plaintiffs claimed to have duly exercised their right of stoppage as vendors, the vendees having become insolvent before any delivery of the goods.
    The answer wholly denied the title of the plaintiffs.
    The cause was tried before Woodruff, J., and a jury, in May, 1856. Upon the trial the counsel for the parties submitted the case upon sundry depositions, in connection with certain facts which are either admitted, or are agreed to be taken as proved; and, for the purpose of raising the questions of law, upon which the rights of the parties depend, by request of the respective counsel, the Judge denied the defendants’ motion to dismiss the complaint, and directed the jury to find a verdict for the plaintiff, subject to the opinion of the court, and, in further pursuance of the arrangement of counsel, directed the exceptions taken by the defendants to the ruling to be heard, in the first instance, at the General Term. Judgment to be, in the mean time, suspended.
    The counsel of the parties agreed that there was no conflict in the evidence given on the trial, and, consequently, that the only questions to be determined by the court at General Term, were' questions of law. The following are all the facts deemed material by the court, upon which these questions arose:—
    The plaintiffs are manufacturers in Leicester in England, and John and James Hall, from the year 1839 down to the time of the transactions in question, were merchants and partners, dealing in lace and hosiery, carrying on their business at Kottingham in England, where John Hall resided, and at the city of Kew York, the residence of James; the business done at Kottingham being conducted under the firm name of J. & J. Hall, and the business at Kew York under the name of Hall Brothers.
    That, as early as the year 1845, they commenced a course of dealing with the plaintiffs, which consisted exclusively in the purchase of goods from the plaintiffs, to be shipped to the cities of Kew York and Boston, to be sold by, or under the direction of their firm of Hall Brothers, of Kew York; and the goods were paid for by bills drawn upon J. & J. Hall, of Kottingham, at four months.
    That, as a general rule, the goods so purchased were sent by the plaintiffs to Liverpool for shipment, and (with a single exception) were directed by the Messrs. Hall to be sent, for that purpose, to Messrs. Edwards, Sanford & Co., of Liverpool, shipping and commission agents, engaged in forwarding goods to the United States. In a few instances small quantities of goods were ordered from the plaintiffs, in which, as the witness expresses it, “the quantity was too small to make up a case,” and they were sent by the plaintiffs directly to the Messrs. Hall at Kottingham; but these instances are clearly shown to be exceptions to the general course of dealing.
    It distinctly appears that all of the goods which, in this cours.e of dealing, were sent to Messrs. Edwards, Sanford & Go., were not only purchased for the Kew York and Boston markets, but; were sent to the forwarding house in Liverpool for the sole purpose of shipment to Kew York or Boston, to be disposed of by the firm of Hall Brothers, of Kew York, and that this was the uniform destination of the goods sold by the plaintiffs, and known to them.; and that the goods ordered by the Messrs. Hall, were ordered for that express destination, and were, in fact, made for that market..

      This being, and having long been, the course of business between the plaintiffs and the Messrs. Hall, it further appears that, in the years 1853 and 1854, the defendant Pratt was in the employment of the Messrs. Hall, residing in the city of New York, but making periodical visits to England, acting as buyér of goods for the New York house; and in October, 1853, he called upon the plaintiffs, at their warehouse, and purchased the goods which are now in question, stating that the destination of the goods was New York, (the goods being made for that market,) and directed the plaintiffs to pack them- in the usual way, and forward them to Liverpool, to Edwards, Sanford & Co.
    Although the goods were purchased (or ordered) in October, 1853, Messrs. J. & J. Hall, by letter from Nottingham, advised the plaintiffs that the goods would not be wanted for shipment before May, and added that “ the marks and numbers can be given you at the time we require their being sent off.”
    Accordingly, the marks and numbers having been furnished to the plaintiffs, they, on or about the 25th of April, 1854, forwarded the goods in question to Liverpool, to the address of Messrs. Edwards, Sanford & Co., advising them thereof, and stating in the letter that the goods were sent to them “ for Messrs. J. & J. Hall, of Nottingham, from whom you” (E. S. & Co.) “will receive further instructions,” at the same time advising Messrs. J. & J. Hall, by letter, that the goods “ are sent to Messrs. E. S. & Co., Liverpool, to await your” (J. & J. Hall’s) “further instructions for shipment.”
    The Messrs. Hall thereupon instructed E. S. & Co. to ship the goods to their New York house by the sailing packet of the 18th of May, or, if too late for her, then by a subsequent packet.
    The goods were accordingly shipped by E. S. & Co. to New York, consigned to HaE Brothers.
    Before the arrival of the goods at the port of New York, James HaE died at New York, the Messrs. HaE suspended payment, and became insolvent.
    The vessel containing the goods arrived at the port of New York on the 10th of June. On the 13th of June, John HaE, the survivor, assigned aE the assets of the firm to the defendants, in trust for the payment of the debts of the firm.
    On the last-mentioned day, the goods being stEl on board the ship, the plaintiffs demanded the goods from the agent or consignee of the owners of the vessel, and of the officers of the New New York custom house on board of the vessel; and, on the same day, notified the defendants of such demand, and claimed the right to stop the goods in transitu, and offered to pay the freight and charges thereon.
    Before the defendants received the notice last mentioned, they had on that day, and after the said assignment to them, made an entry of the goods at the New York custom house; and to the notice received from the plaintiffs they replied, denying that any right of stoppage in transitu had ever existed, and claiming that if any such right had existed the transitus had ended before the right was exercised.

      H. Nicoll, for the plaintiffs,
    in moving for judgment, argued substantially as follows:
    I. The right of stoppage in transitu is an equitable lien adopted by the law for the purposes of substantial justice. It may be enforced upon the insolvency of the vendee whenever the goods have not reached the place of ultimate destination indicated to the vendors, and where there has not been a final delivery and absolute reduction of the same to the possession of the vendee. (Hodgson v. Loy, 7 T. R. 445; Abbott on Ship., (Perkins’s edition,) chap. xi.; McEwen v. Smith, 2 House Lords Ca., 329, per Lord Campbell; Tucker v. Humphrey, 4 Bing. 516, per Park, J.)
    II. In the present case, the ulterior destination of the goods, as named to the vendors, was New. York; the trapsit was, therefore, not ended until their arrival at that port.
    III. The control had by the forwarders, Edwards, Sandford & Co., over the goods upon their arrival at Liverpool, and while the same were lying at the railway depot, was only for the purpose of transmission to, and delivery at, the ultimate place of destination. They never had charge of the merchandise for any other purpose. Their control, therefore, was in no sense such a constructive possession on the part of the vendees as would defeat the vendor’s right to stop the goods in transitu. (Buckley v. Furniss, 15 Wend. 137; Hitchcock v. Covill, 20 Wend. 167; same case in Error, 23 Wend. 611; Ellis v. Hunt, 3 T. R., 465, and cases cited;
      Bohtlink v. Inglis, 3 East. 395; Mills v. Ball, 2 Bos. & Pul. 457; Smith v. Goss, 1 Camp. 282; Tucker v. Humphrey, 4 Bingh. 516; Aguirre v. Parmelle, 22 Conn. 473.)
    IV. The reduction to possession by the vendee, sufficient to defeat the vendor’s right of stoppage in transitu, must be of a character inconsistent with the idea of a continuance of the transit. Where the acts relied upon as evidence of such possession are equivocal, they must be judged of by the circumstances attending them, and explaining the purpose with which they are done. (Smith’s Leading Cases, vol. 1, p. 551, (Hare & Wallace’s edition,) vol. 43, Law Lib.; Nichols v. Le Feuvre, 2 Bing. N. C. 81; Jackson v. Nichol, 5 Bing. N. C. 508; Coates v. Railton, 6 Barn. & Cress. 422; Jones v. Griffin, 1 Mees. & Wels. 21; same case, 2 Mees. & Wels. 624; Stubbs v. Lund, 7 Mass. 453 ; Ilsley v. Stubbs, 9 Mass. 65; Whitehead v. Anderson, 9 Mees. & Wels. 519; see also cases cited to point III.)
    V. In the present case the vendees never had any actual possession of the merchandise; the only act exercised by them was to direct by what vessel the shipment was to be made from Liverpool to their house in Hew York. This act was not done with any intent to take possession, but simply for the purpose of continuing and furthering the transit to this port. In designating the vessel by which the shipment was to be made, the house of J. & J. Hall are to be regarded simply as agents assisting in dispatching the goods to their place of ultimate destination.
    VI. At the time of the demand by the plaintiffs of the goods at this port, the same had not been landed from the ship, nor had any act been done sufficient to vest the possession of the same in the defendants. (Mottram v. Heyer, 1 Denio, 483; same case in Error, 5 Denio, 629.)
    VII. For these reasons we insist that the verdict taken in the case should be confirmed, and judgment entered in conformity therewith.

      A Mathews, for the defendants.
    I. We insist the vendor’s right of stoppage in transitu, as to the goods in question, terminated at Liverpool, in April, 1853. (Biggs v. Barry, U. S. Circuit, Boston July, 1855, Curtis, J., Mss.; Mottram
      v. Heyer, 2 Leg. Obs. 25; 1 Denio R. 487, and 5 Denio R. 629; Valpy v. Gibson, 4 Mann. Gr. and Scott R. 837.) The constructive possession of the vendee is sufficient to terminate the right of stoppage in transitu. (Sawyer v. Joselin, 20 Vermont R. 172.)
    The plaintiffs consigned the goods to E. S. & Co., at Liverpool, to hold subject to the instructions of J. & J. Hall. Liverpool was thus the place of ultimate destination of the goods, as between vendor and vendee. The goods reached their place of destination when they arrived at Liverpool, and came under the control of E. S. & Co. (Rowe v. Pickford, 8 Taunt. R. 83 ; Leeds v. Wright, 3 Bos. & Pul. R. 320.)
    The goods came to the constructive possession of, and under the control of the purchasers, J. & J. Hall, when they came to the hands of E. S. & Co. This control was exercised while E. S. & Co. kept the custody of the goods, and also when they afterwards obeyed the instructions of the purchasers, J. & J. H., (as to when and where to ship the goods,) and shipped them to a foreign market. (Buckley v. Furniss, 15 Wend. R. 145; Dixon v. Baldwin, 5 East. R. 175; Dodson v. Wentworth, 5 Scott R. 821.)
    E. S. & Co. were the special agents or bailees of J. & J. H., the vendees, at Liverpool, and there represented them. They received the goods for disposal as J. & J. H. should subsequently direct. The goods were in fact thus delivered to the vendees, and afterwards shipped (through their agents) by the vendees to Hew York. This taking possession, and this exercise of ownership, alone put an end to the right to stop in transitu. (Valpy v. Gibson, 4 Mann. Gr. and Scott, B. R. 837; Bolin v. Huffnagle, 1 Rawle R. 9; Meletopulo v. Ranking, 1 N. Y. Leg. Obs. 299 ; Fowler v. Kymer, (cited,) 3 East R. 396; Dodson v. Wentworth, 4 Man. and Gr. 1080, and 2 N. Y. Leg. Obs. 46.)
    After the goods arrived at Liverpool, E. S. & Co. were the warehousemen of J. & J. H.' The possession of E. S. & Co. was the possession of J. &. J. H. The goods could not be moved until a new direction was given to them by the vendees. The motion imparted to the goods by the vendors was exhausted. Messrs. E. S. & Co. did not know whither to send the goods until another destination was designated for them by the orders of J. & J. H., and so the original transitus was at an end. (Dixon v. Baldwin, 5 East R. 154; Hayes v. Merrivile, 14 Penn. (2 Harris,) 48; Rowe
      v. Pickford, 8 Taunt. R. 83; Richardson v. Goss, 3 Bos. & Pul. R. 119; Foster v. Frampton, 6 Barn. & Cres. R. 107; Wentworth v. Outhwaite, 10 Mees. & Wels. R. 436; Dodson v. Wentworth, 2 N. Y. Leg. Obs. 46, and 4 Mann & Gran. R. 1080; Allen v. Gipper, 2 Cromp. & Jer. R. 218; Scott v. Pettit, 3 Bos. & Pul. R. 469; Barrett v. Goddard, 3 Mason R. 107.)
    II. We next insist, that the goods having arrived in New York, and the firms of J. & J. Hall and Hall Brothers having assigned them to defendants for the benefit of creditors, and the defendants having possession of the bills of lading, and having entered the goods at the custom-house, before the plaintiffs demanded the goods, the plaintiffs’ right of stoppage in transitu was terminated in New York, if not already terminatéd in Liverpool. (Mottram v. Heyer, (cited above); Wright v. Laws, 4 Esp. R. 82; Foster v. Frampton, 6 Barn. & Cres. R. 107.)
    III. Upon the facts proved and uncontradicted, the defendants are entitled to have the complaint dismissed, with judgment for them, with costs.
   By the Court. Woodruff, J.

It is not claimed that, (if the right of stoppage in transitu existed on the 14th day of June, 1854, when the plaintiffs demanded the goods,) the demand made by the plaintiffs and the notice thereof were not a proper and sufficient exercise of that right to entitle the plaintiffs to take the goods and to recover in this action.

The defendants denied the right, and afterwards paid the freight and duties, and took possession of the goods, but this was not only after the rights of the parties had been fixed by the demand and refusal, but after this suit was brought. The case must, therefore, be disposed of according to the rights of the parties on the 14th of June, when the demand and refusal took place; and the great question in controversy is,

Had the plantiffs, when the goods were demanded, the right to stop the goods ?

This question involves two inquiries—

1st. Did the plaintiffs’ right, as vendors, to stop the goods, terminate at Liverpool, when the goods were received by the firm of Edwards, Sandford & Co. ? or if not then, 2d. Did it terminate at New York before the plaintiffs demanded the goods ?

The general principle which defines the right of the vendor who has sold goods upon credit to a vendee who becomes insolvent or bankrupt to stop the goods, is not controverted. It appears to have been first recognized as an equitable right in the English Court of Chancery, in 1690, (Wiseman v. Vandeput, 2 Vernon, 203,) and afterwards in the same court, in 1743, (Snee v. Prescot, 1 Atk. 248-9,) by Lord Hardwicke, and soon after it was sanctioned at law as a strictly .legal right, though founded in equitable principles, and has ever since been so regarded. (See Mason v. Lickbarrow, 1 H. Bl. 357, and cases cited, p. 365, etc., and in notes.)

The limitation upon the above definition requires that the right be exercised while the goods are in the hands of a carrier or middleman in their transit to the consignee or vendee, and before they come to his actual possession, or as defined by Story, “ while in the hands of some intermediate person between the vendor and vendee in process, and for the purpose of delivery.” (Story on Sales, § 319.)

The application of this principle would, at first view, seem free from great difficulty, but the course of decision in England shows that the rule was soon qualified by an inquiry as to what circumstances should be deemed equivalent to actual possession by the vendee, which at the same time involved the inquiry what, under given circumstances, was-to be deemed the destination of the goods, and when the transitus should be deemed at an end ?

And it is a matter of some ‘interest to observe, that although the courts in England characterize the right as one highly equitable in its nature, and as regarded with favor in courts of law, they have at the same time been restricting its operation and rendering it less and less beneficial to the vendor.

In very early cases, Lord Mansfield not only held that a constructive possession by the consignee by actual delivery to his special agent did not defeat the right of the vendor to stop the goods, but that there must be an actual delivery to the consignee himself; and again, that the goods must have come to the corporal touch of the vendee, (Stokes v. Le Riviere, 1784; Hunter v. Beale, 1785, cited in 3 J. R. 466, and in many subsequent cases,) and Lord Kenyon says, in Wright v. Laws, (4 Esp. 85,) that he once so stated the rule. But as will be seen by cases below cited, the necessity of their either coming to the consignee himself or to his corporal touch was soon after repudiated, and has since been very uniformly denied.

So, in the same case of Hunter v. Beale, the exercise of acts of ownership over the goods by the vendee, while they remained in the hands of the innkeeper to whom they were sent by the vendor directed for the vendee, was held by Lord Mansfield not to defeat the right.

And in 1795, it was held that, when the goods arrived in the vendee’s ship, at the port of delivery, and his assignees took possession of the ship, but she was ordered to quarantine without coming to her wharf, the vendor might stop the goods while she was lying at quarantine, (Holst v. Pownal, 1 Esp. 240,) Lord Kenyon saying, “ that the possession which will defeat the right must be a possession at the completion of the voyage.”

But in Wright v. Laws, (4 Esp. 82,) the same learned Judge held it sufficient to defeat the right if the vendee has exercised acts of ownership over the goods—as by calling at the warehouse and taking samples—and in a previous case, (Ellis v. Hunt, 3 J. R. 464,) in 1789, it was held sufficient, if a vendee, or his assignee in bankruptcy, went to the inn at which the goods had arrived, and demanded them, and they not being delivered, put his mark upon them.

In Hodgson v. Loy, (7 T. R. 440,) delivery by the vendor to a carrier, and by him to a wharfinger at an intermediate place, without any instructions from the vendor to forward the goods, was held not to take away the right; the wharfinger being under general orders from the vendee to forward goods received for him to London. (See also Smith v. Goss, 1 Camp. 282.)

In 1801 it was held, that delivery to a wharfinger at an intermediate place, who received them on account of the vendee, and paid charges thereon, debiting them to the vendee, did not defeat the right of stoppage, though the wharfinger was under no orders to forward except so far as they might be implied from their acceptance, they being consigned to the vendee. (Mills v. Ball, 2 Bos. & Pul. 457.)

But in Richardson v. Goss, (3 Bos. & Pul. 119,) the court intimate, that delivery at a wharf at the place of destination to the wharfinger, who had, before their arrival, received directions from the. vendee to receive 'them from the carrier, terminated the right of stoppage.

The right of stoppage was also held to be lost where goods were purchased for a vendee living in Paris, and were consigned to his agent in London, who sent them to a packer to be re-packed, and some of the goods had been unpacked and sent away by such agent, (Leeds v. Wright, 3 Bos. & Pul. 320 ;) but it is to be observed, that in this case the agent had authority not merely to forward the goods, but had a general authority over the goods to send them to such market as he might deem advisable. And to a similar effect is Scott v. Pettit, (ib. 469,) where under a general direction to the innkeeper to, send all goods directed to the vendee (at London,) to a packer’s, the goods were so sent, and there unpacked.

And to the like effect is Foster v. Frampton, (6 Barn. & Cress. 107,) where, on arrival at the carriers’ warehouse at the place of destination, the vendee removed part of the goods, took samples of the residue, and requested the carrier to suffer them to remain there till further orders.

Taking samples was deemed a complete act of ownership, and the right terminated by the vendee’s treating the goods themselves as his own property.

Other acts of ownership are held to defeat the right; see Withers v. Seys, (Holt, 18,) and review of cases in the note to that case, (3 E. C. L. R. 10,) and Swanwick v. Southern, (9 Ad. & El. 817.)

In Inglis v. Underwood, (1 East. 515,) it was held, that the delivery of the goods on board a ship chartered by the vendee to bring the goods home to himself, put an end to the right. This was in direct conflict with Holst v. Pownal, above referred to, and in Botlingk v. Inglis, (3 East. 381,)’the contrary is distinctly held.,

While, on the other hand, a delivery on board a vessel chartered by the vendee, to be sent abroad on a trading adventure, is deemed to destroy the right of stoppage. (Ib., and Fowler v. McTaggert & Co., there cited.)

These cases, notwithstanding some contradictions, tend to this result, that a merely constructive delivery, though sufficient to entitle the vendor to demand the price of the goods, and to place the goods, at the vendee’s risk, does not alone defeat, the right pf stoppage.

That while the goods are in course of transportation to the place of destination, or are in the hands of an intermediate agent or warehouseman for the purpose of being forwarded, they are not subject to this right.

That after their arrival at the place of destination, and while in the hands of the carrier, or a wharfinger, or a warehouseman for the mere purpose of delivery to the vendee, the vendor may resume the possession.

That delivery to the vendee’s special agent on board the vendee’s own conveyance, or a conveyance chartered by him, if the purpose of the delivery is transportation to the vendee, does not defeat the right.

But that the right is lost if the vendee received actual possession ; or if after their arrival at the place of destination he exercise acts of ownership over the goods; or if his agent, having authority and power of disposal, exercises like acts.

As if the goods are by order of the vendee or such agent sent to a packer, or to the warehouse of a third person, or are charged on the books of the warehouseman at whose warehouse they arrive, so that he undertakes to keep them, subject to the orders of the vendee. (Hawes v. Watson, 2 Barn. & Cress. 540; Withers v. Sey, Holt, 18; Swanwick v. Southern, 9 A. E. 895; Harman v. Anderson, 2 Camp. 243.)

A course of decision originated in the case of Dixon v. Baldwin, (5 East. 175,) although it is by no means necessarily involved in the facts contained in the statement of that case, which bears more closely upon the case under consideration, and which may be said to have resulted in the decision of Valpy v. Gibson, (4 Man. Gr. & Scott, 837,) upon which the defendants here now mainly rely.

It was held, in Dixon v. Baldwin, that the arrival of the goods to the possession of agents, for shipment, who held them awaiting the orders of the vendees, terminated the right of stoppage, and the language of Lord Ellenborough furnishes the argument used in the subsequent cases, and relied upon in the present, viz.: “ The goods had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another and substantive destination, and that without such orders they would continue stationary." But it should be noticed that the vendors there resided at Man-Chester, the vendees at London. The goods were ordered to be sent to the agents of the vendees at Hull, and though “for Hamburg,” yet the agents had no orders when nor to whom to send the goods, but, as testified, held the goods for the vendees and at their disposal, and accordingly Le Blanc, J., gives as a reason for his opinion that “until the agents received directions from the vendees they did not know where to send the goods.” The goods were not in the hands of the agents for the purpose of being sent or delivered to the vendees, but to be shipped from them, and to whom was not yet known.

Without pausing here to consider how far this case conflicts with the decisions of our own courts, it is proper to say that the facts proved there are very materially different from those disclosed in the present case, where the agents received the goods for shipment to the vendees themselves, at the place designated to the vendors at the time of the purchase, and held them for no other purpose, awaiting merely directions which should designate the time of shipment.

This case was followed by Rowe v. Pickford, (8 Taunt. 83,) which held the right of stoppage at an end, when goods, ordered from Manchester by a vendee in London, arrived at the wagon office of the carrier in London and on notice to the vendee, he having no warehouse, his clerk went to the wagon office, (where goods sent to the vendee always remained till shipped,) and saw the goods, and informed the warehouseman that he should give an order to the vendee’s shipping agent to come for them as usual. Of this case it may be remarked that the ground of decision is, that by the uniform course of business, the vendee bad made the warehouse his own, and the acts of his clerk amounted to an actual acceptance of the goods and a deposit there for safe keeping; and, what is very important, no other destination than London was ever communicated to the vendor or contemplated by him, and the decision in Groning v. Mendham, (1 Stark, 299,) where the vendor shipped the goods “to the order of the vendee,” and delivered him the bill of lading, proceeds upon this latter view of the subject.

Accordingly, where goods were purchased by commission agents at Manchester, for a house at Lisbon, and the vendors at Manchester delivered the goods to the agents for the purpose of being forwarded, the goods were held liable to stoppage so long as they remained at the warehouse of such agents. (Coates v. Railton, 6 Bem. & Cres. 422.)

This case is not unlike some others above cited, but the three more recent cases above referred to, were discussed, and the general principle reasserted, that where goods are sold to be sent to a particular destination named by the vendee, the right of the vendor to stop them continues until they arrive at that place of destination. The suggestion that the time or mode of shipment not being fixed made any difference, does not appear to have occurred to the court; and, after reviewing the cases, it is added, “the principle to be deduced from these cases is, that the transitus is not at an end until the goods have reached the place named by the buyer to the seller as the place of their destination.”

It is difficult to perceive, if the mere fact that the goods are awaiting the directions of the vendee, as to the time or mode of conveyance, affects the right of stoppage, why the full possession of an agent clothed with authority to determine in future where and how the goods shall be sent should not have the same effect. And that the mere fact that the goods await the vendee’s orders for disposition even, (which is much stronger in favor of the vendee than where the orders required relate only to the time or mode of shipment to the vendee,) does not defeat the vendor’s right, is held in Tucker v. Humphrey, where the uniform course of business of the vendee with the carrier was, that the latter retained goods sent to the vendee on board ship or on his wharf until the vendee sold them, and yet they were stopped on board the ship while awaiting orders. And the court evidently entertain the doctrine that where the person to whose possession the goods have come is acting merely as a means of conveyance to or on account of the vendee in a course of transit towards him, the right of stoppage is not lost. (4 Bing. 516.)

Goods in the hands of the middleman are, hi one sense, always subject to the orders of the vendee, as well before as after arrival at their place of destination. He may take possession of the goods, and he may, if he please, terminate the transportation at an intermediate place; or he may change the ultimate destination. But if, in fact, he has done neither, and the goods are held for the mere purpose of shipment to him, it is not apparent that the existence of the right or power of the vendee nnexercised, and while the purpose to ship to the destination named to the vendor continues, ought to affect the right of the latter. And that such right is not so affected, if the time and mode of shipment be in the discretion of the agent to whose care the goods are sent by the vendor, appears to have been held in Nicholls v. Le Feuvre, (2 Bing. N. C. 81,) and, notwithstanding the qualifying dictum of Chief-Justice Tindal,, founded on Dixon v. Baldwin, the case of Jackson v. Nichol, (5 Bing. N. C. 508,) seems even stronger to this effect.

The question before us, then, becomes an exceedingly narrow one; goods are purchased for a specified destination, named to the vendors at the time of the purchase, and that destination is the place of business of the vendees. Eor the single purpose of being shipped to that destination the vendors send the goods to the vendees’ shipping agents, who, during a long course of dealing, had been in the habit of receiving and forwarding goods to the vendees. The destination remains unchanged. The vendees not only do nothing to change the condition or destination of the goods, but their very purpose for which the goods were bought remains unaltered. The goods have neither become the subject of any new adventure by the vendees nor the basis of any new credit with third persons. If such shipping agents were clothed with a general discretion as to the time and mode of shipment, the right of stoppage in transitu would continue until and after such shipment. Does the fact that, as respects the time of shipment, (for that appears to have been all that was left for the orders of the vendees, as the parties contemplated and treated the present transaction,) the agents were to await the orders of the vendee, defeat the right ?

Chief-Justice Tindal, in the case last above cited, remarks, as the doctrine of Dixon v. Baldwin, that “if the goods had been delivered to an agent of the vendee to remain till he received orders for their ulterior destination, the right to stop would have been at an end.” The case of Dixon v. Baldwin has been already noticed above, and it may be added of this remark, that if “ orders for their ulterior destination” is taken to mean, for disposal as the vendees might order, then the dictum does not bear upon the question above stated. In such case it could not be said that they were purchased or delivered by the vendors for any other destination. It must, however, be conceded that the language of the court in the modern English cases go very far to sustain an affirmative answer to the question above proposed, and yet no one of the cases themselves necessarily involves such an answer.

The three recent cases, much insisted upon by the defendants’ counsel, are Dodson v. Wentworth, (4 Man. & Gr. 1080,) Wentworth v. Outhwaite, (10 Mees. & Wels. 436,) and Valpy v. Gibson, (4 Man. Gr. & Scott, 837).

In the first of these cases it was held, that when goods arrived at the place designated in the bill of lading, and were delivered by the carrier to the warehouseman, a third party who was in the habit of receiving goods for the vendee, and holding, at his risk, without charge, till fetched away by the vendee or delivered to others upon the vendee’s orders, the vendor’s right of stoppage ceased on such delivery to the warehouseman.

In this case, the goods reached the destination to which they were ordered at the time of the purchase, and no other destination appears to have been named to the vendor, or to have been contemplated by him. The course of business proved did not indicate that the goods were to be forwarded any further; the warehouseman held subject to the orders of the vendee as to delivery to any persons whom he might designate; under the circumstances, the court regard the usage of the vendee as making the warehouse his own,, and delivery there, therefore, as effectual as if the delivery had been in his own warehouse. The court regard the case as falling within the principle of Dixon v. Baldwin, already commented upon. In Wentworth v. Outhwaite, (10 Mees. & Wels. 436,) the facts were substantially the same as in Dodson v. Went-worth, with the additional circumstance that the- vendee had actually taken away a portion of the goods.

The case of Valpy v. Gibson is, in some of its features, very nearly identical with that now under consideration; some grounds of discrimination may be stated, though it cannot be denied that the opinion expressed by the court is adverse to the claim of the present plaintiff. They seem inclined to hold, that if the agent to whose hands the goods come cannot forward without further directions from the vendee, the transitus is at an end when the goods are received by him, although purchased for another destination gnd expressly forwarded by the agent to be shipped.

In that case, however, goods were purchased by Brown, living in Birmingham, for the Valparaiso market, and the vendors, in accordance with Brown’s directions, sent the goods to L. H. & Oo. of Liverpool, and on the same day advised L. H. & Co. that they were for shipment to Valparaiso, and requested them to put certain patterns on board with the goods, and “ see that they are properly directed as Mr. Brown of Birmingham may direct the same to be shipped.”

Had the case stopped here, it would have differed very slightly from the present. The only variation being, that in this case the goods were on their way to the vendee, while in that, they were on their way from the vendee to a foreign market. And the court clearly intimate the opinion, that upon these facts alone the transitus ended when the goods were received by L. H. & Co., the shipping agents.

But the further facts in that case, upon which, in connection with those stated, the decision was really based, create a most material difference, and bring the decision upon the ground of an actual exercise of authority over the goods by the vendee, and, like many of the previous cases of that description, does not at all conflict with the plaintiffs’ claim here. After the goods had been put on board ship, another agent of the vendee (acting, as the court assume, under his authority) caused them to be re-landed and sent back to the vendors to be re-packed. This was deemed by the court an actual dealing with the goods as owner; it diverted them, for the time being, from the course of transportation, and brought the transaction within the ordinary case of goods sent to a packer’s for re-packing, as in Leeds v. Wright and Scott v. Pettit, above referred to, and “ this,” the court say, “ would certainly put an end to the transitus, even if it had not been determined, as we think it was, by the original delivery to L. H. & Co.”

It is undoubtedly true, that in the last three cases, though none of them necessarily called for any such proposition, the court seem not only to adopt the language of Lord Ellenborough, in which he deems the transitus at an end because “ the goods had so far. gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, without which orders they would continue stationarybut they seem to sanction the even more restricted rule, that if any further orders from the vendee are necessary to put the goods in motion, the transitas is at an end, although the actual destination named to the vendor remains unchanged, and the agents receive the goods to be forwarded to the vendee at such place, and for no other purpose.

As already remarked, neither Dixon v. Baldwin, nor either of the cases referred to, called for any such narrow limitation upon the vendor’s right of stoppage, and it does not appear called for by any reason, or even by any rule of convenience. The right in question is constantly called an equitable one, and is declared to be entitled to favor. It is equitable, because a condition of things has arisen not contemplated by the parties at the time of the purchase, and which, if anticipated, would have prevented a delivery without payment. The vendee has not paid the price, and, therefore, as between him and the vendor, the equity of the latter to retain the goods is clear. The rights or equities of no third persons have intervened. Creditors who have not become such upon the credit of the goods, nor of the vendee’s possession, have no right in reason or equity to ask that the goods be applied to the payment of their debts; no one, therefore, is prejudiced by the recognition of the vendor’s right. It is sometimes characterized as an extension of the vendor’s lien upon the goods for the price or purchase-money. It is not apparent that the circumstance that the goods are temporarily stayed in their actual progress to the vendee at the place of destination in fact, until he shall give orders as to the mode or time of shipment, upon any view of what is equitable between vendor and vendee should affect the vendor’s right; and as to third persons, the circumstance can in nowise affect them.

The supposed rule concedes that if the shipping-agent is already clothed with authority to ship when the goods arrive, then his possession is to be deemed a part of the transit. And to say that, although he hold for that, and no other purpose, and does, in fact ship, in execution of the declared intent expressed to the vendor by the vendee, the vendor’s right is lost, because the agent was instructed to await orders touching the mode or time of shipment does not seem to “ regard with favor” the right in question, but rather to restrict that right withip limits more narrow than sensible pr just.

If Edwards, Sandford & Co., the agents at Liverpool, had been clothed with a discretionary power to ship the goods to this port by any vessel they might think proper to select, but circumstances occurred inducing them to decline acting under that discretion, and being unwilling to make a selection, they had written to the vendees for specific instructions, it would hardly be contended that by this act of the agent the transitus was terminated, and yet, in the case supposed, the goods, until an answer was received, would have been awaiting the orders of the vendees, and requiring such orders to put them again in motion in exactly the same sense as in the actual case before us.

And again, if the goods had been sent to Edwards, Sandford & Co. precisely as they were, in fact, save only that the orders as to the time and mode of shipping the goods to New York which they were directed to follow were to come from the vendee’s agent to purchase in England and forward to this port, could it have been said, that by the arrival of the goods in Liverpool for shipment before these instructions were received from the agent the transitus was ended, and the right of stoppage gone ? And yet, looking to the actual course of dealing, and the intention of the parties, the case stated does not differ in principle from the present. Eor, although the instructions required for the guidance of Edwards, Sanford & Co. were to come from J. & J. Hall, of Nottingham, yet, in giving those instructions, they acted for Hall Brothers of New York in furtherance of the original design and purpose for which the goods were bought, and to carry that design into execution by forwarding the goods to their original and proper destination.

And, although it may be conceded that John Hall at Nottingham, being a partner, had legal power even to change the destiip ation of the goods, he not only did not do, nor attempt to do this, but his doing so would have been a departure frqm the understanding and arrangement by which the goods wete, in fact, bought for the New York house, and' it may be even a violation of duty to his partner in New York, and the reference to him for instructions, and the instructions he gave were, therefore, only in aid of the original design to forward to, the New York firm, in respect to whom, in giving the instructions, he may properly be regarded as their agent only.

It has sometimes been said, in relation to this subject, that each case must depend upon its own peculiar circumstances, and involves the inquiry what was the intent of the parties and whether the vendor contemplated any further actual reduction of the goods by the vendee to his own possession, and by this view many of the above cases may be disposed of, where it appears that the agent held not for transmission to the vendee but for shipment from him, or generally for disposal as the vendee might direct; and, notwithstanding the language used in the recent English cases, and applied to a state of facts in material particulars different from the case before us, it is by no means clear that they would hold that the possession of the agents in the circumstances of this case terminated the transiius at Liverpool.

Delivery to the vendees, and at New York—named to the vendors at the time of the purchase—was in contemplation of the parties from the outset. That destination was impressed upon the goods in the very act of manufacturing. That destination was constantly the intent of the vendees. The agents at Liverpool held them only in furtherance of that design, and made the shipment in order to its accomplishment.

If, therefore, we had only the English cases to guide us to a proper determination of this cause, there are strong reasons for holding that the more liberal views found in the earlier cases should determine the case favorably to the plaintiffs’ claim. If it were otherwise, it should be remembered that the most recent cases are only binding upon us so far as we are satisfied that they truly exhibit the law as it was when English authorities ceased to be binding in this country.

Our attention is called to the very recent case of Briggs v. Barry, in the United States Circuit Court for the district of Massachusetts, etc., (2 Curtis, C. C. R. 249,) of which it is stated by counsel that the facts disclosed by the evidence were identical with the present case so far as the plaintiffs’ right to stop the goods for non-payment of the price was involved, and in which Mr. Justice Curtis held that the transitus was at an end when the goods were received by Edwards, Sandford & Co. in Liverpool. The case, as reported, does not show that the goods were, in that case, ordered for the Boston market, nor that Boston was at all named to the vendors as their destination, nor that the goods were sent to Edwards, Sandford & Co. for shipment to Boston, awaiting only orders respecting the time or mode of shipment. On the contrary, the charge of the court to the jury seems to imply that the goods were sent to Edwards, Sandford & Co. “to await orders respecting their destination.” But if a more full detail of the facts proved would show a more precise correspondence, then we feel constrained to differ from the conclusion reached by the learned Justice of the Circuit Court. His opinion is briefly placed upon the authority of Valpy v. Gibson, above referred to, and although it would be matter of regret if in the two chief commercial states of the union a conflicting rule should prevail upon this subject, the views above expressed, even without the decisions in our own state, to be presently noticed, which are binding upon us, lead us to the opposite conclusion.

We are not, however, without the aid of decisions in this country. It will suffice to notice those in our own state, bearing directly on the subject, and it will be seen that some of the recent English cases, so far as they conflict with the plaintiffs’ claim, are directly contrary to our own.

In Buckley v. Furniss, (17 Wend. 504; S. C. 15 Wend. 137,) it appeared that the vendor, at Troy, received an order for iron from the vendee, residing at Malone, which, in accordance with the direction contained in a former order, was forwarded to the care of one Green, at Plattsburg, at whose warehouse it was received and deposited, and it there remained until the vendee sent his own carrier to Plattsburg for the iron, and it was delivered from the warehouse to him, a portion of the goods were actually carried and delivered to the vendee. Before the carrier reached Malone with the residue of the goods they were attached by a creditor of the vendee, and were thereby detained, and the vendor, in exercise of the right of stoppage in transitu, claAned such residue of the goods, and his claim was sustained by the court.

In Hitchcock v. Covill, (20 Wend. 167; S. C. in Error, 23 Wend. 611,) the vendor in Hew York sold goods to a vendee residing in Willardsburg, Pa., and, by the vendee’s direction, forwarded the goods to Havana, where they were deposited in a warehouse. There being no forwarding line at that point, the course of business was to deposit goods in warehouse, and the warehouseman kept them until called for or ordered on by the owners. By these facts a state of things strikingly like those before us was established. The goods were in the possession of a warehouseman, entirely subject to the orders of the vendee. The goods “had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, without which orders they would continue stationary.”

Upon the authority of Dixon v. Baldwin, and some of the other cases above referred to, the Supreme Court were inclined to the opinion that the transitus was at an end when the goods were received by the warehouseman; and when another fact was taken into view, which also appeared in the case, there was said to be no doubt about it. The additional fact was this, that after the arrival of the goods at the warehouse the vendee came in person to Havana, with his team, to take the goods to his residence, and, as the court suggest, would have taken them into his actual possession, but finding that one of his creditors had caused- an execution to be levied on the goods, left them there. In the court of errors, however, the decision of the case is put exclusively upon the ground that, notwithstanding all the facts stated, the transitus was not at an end. The goods being, in fact, in course of transportation to the vendee, the circumstance that they remained with the warehouseman, subject to the vendee’s orders, and that they waited for such orders to put them again in motion, was held not to defeat the vendor’s right to stop the goods.

In the present case, therefore, it must be held, that the plaintiffs’ right to stop the goods did not end on the arrival of the goods at Liverpool.

- It is next insisted that the goods having arrived at the port of Hew York, and having been assigned by the vendees to the defendants for the benefit of creditors, and having been by the defendants entered at the custom house, before notice to the defendants of the plaintiffs’ claim, the transitus was at an end and the right of stoppage lost.

In relation to the effect of the assignment by the insolvent vendees to trustees for the payment of debts, it will suffice to say, that the defendants are not bona fids purchasers for value. In very many of the English cases above referred to, in which the right of the vendees to stop the goods was sustained, the claim was resisted by assignees in bankruptcy, who were deemed in no better condition than the vendee himself in this respect. And in Buckley v. Furniss, above cited, the fact appeared, that previous to the exercise of the right of stoppage, the vendee had assigned' his property to the defendant and other creditors, and yet it was held that this did not affect the vendee’s right. So also in some of the English cases, and in Buckley v. Furniss, the property had been attached; and in Hitchcock v. Graves an execution had been levied thereon at the suit of a creditor of the vendee. This, however, was not deemed to make any difference.

As to the effect of the defendants’ entry of the goods at the custom house, the case of Northey v. Field, (2 Esp. 240,) shows that this would not defeat the right in England, if removal to the king’s stores be tantamount to an entry at the custom house in this country. The case submitted does not distinctly show whether the defendants’ entry was before or after the plaintiff’s demand of the goods from the carrier and officers on board the ship, but only that it was done before the defendants were notified.

Be this as it may, the case of Mottram v. Heyer, in the court of errors, (5 Denio, 629,) is conclusive upon us on this question. That case was, in the fact, that the vendee had not only entered the goods, but had received the bill of lading from the carrier and had paid the freight; stronger than the present in the defendants’ favor. And in the court below, such entry and the payment of freight were deemed such acts of ownership and termination of the carrier’s title to retain as put an end to the transitus. (2 Leg. Obs. 25; 1 Denio, 483.) But the Court of Appeals, although they affirmed the judgment on the ground that the vendor’s right was not properly exercised, held, so far as we can learn from the opinions delivered, that the transitus was not at an end, and that the right might have been asserted and maintained, had the proper claim been made on the carrier.

The plaintiffs should have judgment upon the verdict.