Mottram v. Heyer — 1 Denio 483

Majority

p. 483

Mottram and others vs. Heyer, survivor of Heyer.

Headnote

It is not necessary in order to terminate the vendor’s right of stoppage in transitu, that the goods, after arriving at the place of delivery, should have come to the corporeal possession of the consignee. A constructive possession, or the exercising of acts of ownership by the consignee after such arrival is sufficient. Per Bronson, C. J.

The defendants, merchants in New-York, ordered a cask of hardware from the plaintiffs, who were manufacturers in England, and it was shipped on board a vessel which arrived in JSew-York on the 7th of April, on which day the defendants, having received the bill of lading, paid the freight, and on the 9th of April entered the goods at the custom house. After this they were taken to the public store, and while remaining there and before the duties were paid, the defendants having become bankrupt, the" plaintiffs’ agent, on the 28th of April, demanded the goods of the defendants; held, that the iransitus had ended when the demand Was made, and that the plaintiffs had no right to stop the goods.

It seems, the case would have been different if the freight had not been paid, or if no entry of the goods had been made. Pei" Bronson, C. J.

Error to the superior court of the city of „Ne\v-York. Thomas Mottram & Sons were plaintiffs in the court below, and brought replevin against E. P. & H. Heyer for a bask of hardware. The defendants were merchants in the city of New-York, and ordered the goods from the plaintiffs, who owned a factory in England, on a credit of four and six months. The goods were shipped at Liverpool on board the Cambridge, and consigned to the defendants, they paying freight. About the 7tli of April, 1842, the ship arrived in New-York, and on that day the defendants, having received the bill of lading, paid the freight. On the 9th of April they entered the goods at the custom house; but they did not pay the duties until the 29th of April. On the 28th of April, the defendants having become bankrupts, the plaintiffs’ agent called on them, and requested

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them to give up the goods. The defendants answered that they would not give them up until they had consulted friends. At this time the goods were in the public store of the custom house. The next day the plaintiffs’ agent went to the custom house and found that some one was passing the goods. He then called.at the defendants’ store and demanded the goods; and not being given up, the plaintiffs sued out a writ of replevin and took the goods in the store of the defendants, where they had just arrived from the custom housethe cask in which the hardware was imported not having been broken. ' The judge charged the jury, that by the receipt of the bill of lading by the defendants, the payment of the freight by them, and their entry of the goods at the custom house, the transitas was ended ; and the plaintiffs had no right to stop the goods. Verdict for the defendants; and judgment for the defendant E. P. Heyer; the other defendant having died after verdict. The plaintiffs bring error on a bill of exceptions.

N. Hill, jun. for the plaintiffs in error.

Stoppage in transitu is favored and the courts have been liberal in the application of the rules of law on this subject, where an unpaid vendor is endeavoring to regain possession, after the purchaser has became insolvent. (Northey v. Field, (2 Esp. 613; Selwyn’s N. P. 1285.) The claiming or demanding of the goods on behalf of the vendor was sufficient. The rule formerly held, that possession must be obtained by him in order to assert his right has been relaxed by later decisions. (No rthey v. Field, supra; Litt v. Cowley, 7 Taunt. 169; Mills v. Ball, 2 Bos. & Pull. 462.) Besides, it was assumed on . the trial that enough was done when the plaintiffs’ agent. first went to the defendants’ store to constitute a stoppage, if the right at that time existed. The goods did not come to the possession of the defendants in such manner as to preclude the. right, to reclaim them, until they had been passed at' the custom house and■ the duties had been paid. This was not done until the day after the claim and demand on behalf of the plaintiffs were made. A delivery which will

p. 485

merely change the property, will not be sufficient to prevent the exercise of the right to stop the goods. Such a delivery takes place when the property is delivered to the carrier. The transitus is not ended on the arrival of the vessel in port. The goods must then pass through the custom house, and the right to reclaim them remains until the purchaser has a legal right to the actual possession. While there is any one who has a right to stand between the goods and the purchaser and to prevent a manual possession by the latter, the seller may exercise this right. In this case it was the duty of the officers of the customs to hold on to the goods until the duties were paid, and such was the situation of affairs when the demand was made on behalf of the plaintiffs. Northey v. Field, before referred to, is decisive upon this point. The counsel also referred to Tucker v. Humphrey, (4 Bing. 516;) Buckley v. Furniss, ( 17 Wend. 504 ;) Holst v. Pownal, (1 Esp. 240;) U. S. v. Lindsey, (1 Gallis. 365;) Abbot on Ship. 446; Cross on Lien, 382, 3; Townley v. Crump, (4 Adolph. & Ellis, 58;) 5 Nev. & Man. 106; Ryberg v. Snell, ( 2 Wash. C. C. Rep. 403 ;) Walley v. Montgomery, (3 East, 585;) Burnham v. Winsor, (5 Law Reporter, 507;) Stephens’ N. P. 2587.

The case of Northey v. Field is referred to with approbation in many elementary books, and never has been questioned. It is conclusive upon this case, unless the entry at the custom house makes a difference. An entry, however, is merely a claim of the goods by the consignee; but such a claim does not defeat the vendor’s right. (Holst v. Pownal, supra ; Stephens’ N. P. supra.)

A. S. Johnson, for the defendant in error,

referred to the act of congress to shew the practice relating to the passing of goods through the custom house.' (1 Story’s Laws U. S. 606, 617, 622, §§ 36, 52, 56.) The goods remain on board the ship for fifteen days, at the expiration of which time a general order is made by virtue of which the remaining cargo which has not been before entered, is taken to the. public stores, and if not claimed within a limited time is sold for the payment of the

p. 486

duties. The entry to be made by the importer is a statement of the goods imported by him, with the marks, &c. on the packages, and is an emphatic act of ownership. In Abbot on Shipping, 305, there is a more full statement of the case of Northey v. Field, by which it appears that the goods had not been entered when they were claimed by the vendor. In 3 Stephens' N. P. 2588, note, it is shewn that in that case the carrier’s lien for freight continued while the goods remained in the public stores; but here the freight had been paid. Where the property in the goods has passed so that the consignee is entitled to sell them, the vendor’s right ends. (Wright v. Lawes, 4 Esp. 82; Dixon v. Baldwen, 5 East, 175; Dodson v. Wentworth, 4 Man. & Gr. 1080.) Sometimes imported goods never leave the public stores until entered for re-exportation. Where the warehouse system prevails the goods remain in the public warehouse for an indefinite period, and during the pleasure of the importer, the duties remaining unpaid until they are sold to go into the country. That system of collecting duties has prevailed in this country, and may be re-enacted. It has long been in force in England in respect to many articles. Policy requires that the ownership of property thus situated should be in all respects the same as though it had been actually delivered.

There was not in this case any sufficient demand in behalf of the vendor. Formerly stoppage in transitu could only be exercised by the vendor’s obtaining actual possession. This was likely to lead to breaches of the peace in obtaining the possession, and a demand was held to be enough ; but the demand to be effectual should be made of some person who has the capacity to give up the goods. Here it was made of the consignees, the goods being in the public store. (1 Bell's Cases, 229, § 5.) In Newhall v. Vargas, (9 Mees. & Wels. 518,) it was held that notice must be given to the person who has, or whose servants have, the custody of the property. No demand was here made of the storekeeper or of any officer of the customs. Holst v. Pownal, cited to shew that a claim of property by the consignee does not put an end to the vendor’s

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right is in effect overruled in Mills v. Ball, (2 Bos. & Pull. 457—461.) See also Oppenheim v. Russell, (3 id. 42,) Foster v. Frampton, 6 Barn. & Cress. 107,) to the same effect.

Goods may he stopped so long as the transit continues, whether by land or water, from the consignor to the consignee; and whether they are in the hands of the carrier, a warehouse-keeper, wharfinger, or any other middle-man connected with the transportation. The right of stoppage ceases when the goods have reached their place of destination, and have come to the actual or constructive possession of the consignee. It was once said by Lord Kenyon, that the goods must have come to the corporal touch of the consignee ; but he afterwards wished that the expression had never been used: and it is now fully settled that a constructive possession is sufficient. It is enough that the goods have reached the place of delivery,-and the consignee has exercised some act of ownership over them. Now here the goods had reached their place of destination ; the carrier had completed his work, and received his reward; and the defendants, besides paying the freight, had entered the goods at the custom house, where they remained at the risk and charge of the defendants. I cannot doubt that the transitas was at an end before the plaintiffs attempted to regain the possession.

The plaintiffs rely strongly on the case of Northey v. Field, (2 Esp. 613,) where Lord Kenyon held that goods in the king’s stores for the non-payment of duties were in transitu, and might be stopped by the consignors. But it does not appear from the report of the case that the consignees had either paid the freight, entered the goods at the custom house, or exercised any other act of ownership over the property. Lord Tenterden mentions the fact that the consignees had not entered the goods. (Abbott on Ship. 377, ed.of 1829.) And Mr. Stephens says, the goods were considered as still in the possession of the carriers and subject to their lien. (Stephens’ N. P. 2587.) In Burnham v. Winsor, (5 Law Reporter, 507,) the consignees had not cn

p. 488

tered the goods, nor exercised any other act of ownership over the property. It is enough to say of these two decisions that they are plainly distinguishable from the case in hand.

Judgmént affirmed.

Cases cited

Buckley v. Furniss 17 Wend. 504 N.Y. Sup. Ct. p. 485