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Vol. I.)


(No. 4.

seen at once that the train was not in its proper position; and if she had thought for a moment, she must have known that the train would be backed in order to get it into its proper place alongside of the platform. With a knowledge of the station, and without any express invitation to alight, and without having the door opened for her by any porter — only having heard “ Bromley," called out — which is done to give notice to the passengers that the train had arrived at that particular station, and that they were to prepare to alight - she gets out. The company had done no act to induce her to believe that the train had arrived at a place where it would stop, so as to justify her in assuming that the company had given her an invitation to alight at that particular spot. I think the verdict was right.

ARCHIBALD, J. I am also of opinion that there was no evidence in this case to go to the jury. No doubt there may be conduct on the part of the company, and the circumstances may be such as to amount to an invitation to get out without the actual opening the door and bidding the passengers to alight. If the train is in its proper place, or if the train is allowed to stand still for a sufficient length of time, there may be, under some circumstances, an intimation at least that the passengers may alight. But the circumstances are entirely different here. The train had reached beyond the platform ; for, according to the evidence, it is clear that a considerable portion of it was beyond the bridge, and the carriage in which the plaintiff herself was travelling was next to the corner of the platform. The slightest attention on her part must have made her aware that, as matters stood, it was dangerous for her to alight. She, knowing the station as she did, must have come to the reasonable conclusion that that was not the place she ought to alight at; that there was something more to be done, and that the train would be pushed back before it was right and proper for her to alight. Being well acquainted with the platform and the station - and the evidence showing that the train did not wait a sufficient time and give her fair intimation that she might alight without danger - she chooses to get out of the carriage. The evidence as to the time the train stopped shows it was only for a few seconds. One of the witnesses states that he had a frame strapped on his back; he had not to wait to put it on; and that when the train stopped he stood up immediately, and then he put his hand on the door; the train shunted back.

We may conclude that he was an active man, carrying a burden, and therefore did not lose much time in attempting to get out of the carriage; but he says before he got out of the carriage the train shunted back, so that the female plaintiff must have got out very hastily and in a great hurry, and at a time when there was nothing done on the part of the company, or their servants, that she might have taken to be an intimation or invitation that she might safely get out. Under these circumstances, I think the verdict was right.

Judgment for the defendants. Attorneys for plaintiffs : Martin, Gregory š Boreman. Attorney for defendants : J. C. Church. November 11, 1873.

Vol. I.)


(No. 5.


[LAW REPORTS, 9 Ex. 54.]





The purchaser of goods which remain in the possession of the vendor subject to the

vendor's lien for unpaid purchase-money cannot maintain an action of trover against a wrong-doer.

ACTION of trover tried in the passage court, Liverpool, on the 8th of November, 1873. The plaintiff, on the 15th of August, bought at an auction two lots of damaged cotton, part of the salvage from a fire, under conditions which, so far as is material, were as follows:

“ 2. All the cotton, as allotted, is to be at purchaser's risk as to fire, theft, disarrangement of lots, or loss in any respect, from the falling of the broker's hammer, and to be taken away before Saturday next, the 16th instant, at four o'clock, P. M. ; and if any should remain after that time, the cotton remaining will be sold without notice, the deposit forfeited, and the loss (if any) to be made good by the defaulter.

" 3 A deposit of £50 per heap and £10 per lot to be paid at the time of sale of each lot, and payment of the balance in cash, less 15 per cent. discount, to be made immediately after at the broker's office, and before delivery of the cotton."

The plaintiff paid the deposit on the two lots, but did not pay the residge of the purchase money, and left the cotton in the field where the auction had been held.

On the same day he removed one of the lots ; but on going on the 18th of August to fetch the other lot, he found that it was gone. It had, in fact been taken by the defendant, who was also a purchaser at the sale, by mistake for a lot which had been bought by him, and the plaintiff (whose purchase money was still unpaid) now

sued him for the alleged conversion. The learned assessor, on the defendant's application, nonsuited the plaintiff, on the ground that the vendor's lien for unpaid purchase money prevented him from maintaining an action of trover, and gave leave to the plaintiff to move the court of exchequer for a new trial. A rule having been obtained accordingly,

Gully showed cause. In order to maintain this action the plaintiff must have the right to present possession. But the plaintiff has no such right. It is true that the property in the goods passed to him, but the vendor's lien for unpaid purchase money deprived him of the right to possession, which the vendor retained. Bloxam v. Sanders, 4 B. & C. 941, at p. 948; Milgate v. Kebble, 3 M. & G. 100. The owner, therefore, could have maintained an action against the defendant, and the plaintiff cannot, for it cannot be that both can sue. Similarly a mortgagee, under a bill of sale of chattels, of which the mortgagor is to remain in VOL. I.


Vol. 1.)


[No. 5.

possession until default in payment, cannot maintain trover for them; Bradley v. Copley, 1 C. B. 685; nor a landlord for chattels leased to a tenant. Gordon v. Harper, 7 T. R. 9. The plaintiff's remedy is not in this form of action, but by a special action for injury to his interest in the goods, as in Mears v. London and South Western Řy. Co. 11 C. B. (N.S.) 850 ; 31 L. J. (C. P.) 220. This course would secure the rights of all parties, but if the plaintiff can recover without paying for the goods, the vendor's lien will be lost. Possibly also, by now paying or tendering the price, the plaintiff might entitle himself to recover in trover. In any case he is not without remedy, for he may treat the vendor as his trustee, and on giving an indemnity, sue in his name.

Myburgh, in support of the rule. It is true the plaintiff has no right to present possession as against the vendor, but the vendor's right is for his own benefit, and the defendant, who is merely a wrong-doer, cannot take advantage of it.

BRAMWELL, B. I am of opinion that this rule must be discharged, on the ground that the action cannot be maintained without a right of present possession in the plaintiff. Here there is no evidence that the plaintiff had any right of possession ; that right was in the vendor, who was entitled to retain possession of the goods until the balance of the purchase money was paid, and, on non-payment, to resell the goods and recoup himself for any loss sustained on the resale. Therefore, if the goods were tortiously removed (and there is no evidence that the vendor assented to their removal), it is manifest that the vendor could have maintained an action. But it cannot be that two men can be entitled at the same time to maintain an action of trover for the same goods. It is, therefore, abundantly manifest that the vendor could, and that the plaintiff cannot, maintain this action.

Whether, by paying the balance of the price now, or tendering it, the buyer can, either in an action of trover or by a special action on the case, have any remedy at common law in his own name, or whether he is limited to an action in the name of the vendor, it is not necessary now to pronounce. It is sufficient to say that, on the facts shown here, the plaintiff cannot recover.

AMPHLETT, B. I am of the same opinion. I should be sorry to suppose that the plaintiff could have no remedy. No doubt, on paying the balance, he would be entitled to relief, either at law or in equity. But it is sufficient to say here that he has not done those acts which were necessary to entitle him to the possession of the goods, and that he cannot therefore maintain this action.

Rule discharged. Attorneys for plaintiff: Lowndes f Co., Liverpool. Attorney for defendant : Lupton, Liverpool. January 30, 1874.

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MOSES W. GRAY, Appellant, v. WILLIAM E. ROLLO, Assignee in Bank

ruptcy of the Estate of the Merchants' Insurance Company.

1. Set-off is enforced in equity only where there are mutual debts or mutual credits,

or where there exists some equitable consideration or agreement between the parties

which would render it unjust not to allow a set-off: 2. Where a bankrupt owes a debt to two persons jointly, and holds a joint note given

by one of them and a third person, the two claims are not subject to set-off under

the bankrupt act, being neither mutual debts nor (without more) mutual credits. 3. Where one of two joint debtors becomes bankrupt, it seems that the creditor may

set off the debt against his separate indebtedness to the bankrupt, because each joint debtor is liable to him in solido for the whole debt ; but, if this be conceded, it does not follow that if one of two joint creditors becomes bankrupt, the common debtor may set off against the debt a separate claim which he has against the bankrupt,

for this would be unjust to the other joint creditor. 4. A and B were joint makers of certain notes, which were transferred to an insurance company.

B and C held policies in this company which became due in consequence of loss by fire. The company being bankrupt, its assignee claimed the full amount of the notes from A and B. B sought to set off against his half of the liability the claim due to him and C on the policies of insurance, the latter consenting thereto : Held, that this was not a case for set-off within the bankrupt act, the two obligations having been contracted without any reference to each other.

APPEAL from the circuit court of the United States for the Northern District of Illinois.

Justice BRADLEY delivered the opinion of the court.

The bill in this case was filed to compel a set-off of alleged mutual debts. The Merchants’ Insurance Company, when it became bankrupt by the great fire at Chicago, held two promissory notes for $5,555 each, made by the complainant Gray, jointly with one Gaylord, and which the company had received from the payee in the regular course of business. By the fire referred to, Moses W. Gray, the complainant, and his brother, Franklin D. Gray, doing business under the firm of Gray Brothers, suffered largely in the destruction of buildings, for which they held insurance in the said insurance company, whereby the latter became indebted to them in the sum of $30,000 on three several policies. Now the complainant alleges that his just share of liability on the two notes is one half of the amount, and he desires to have that half extinguished by a set-off of the like amount due on the policies. It is true, the money due on the policies is not due to him alone, but to Gray Brothers. But he states that his brother assents to, and authorizes, such appropriation; and the bill, being demurred to, must be taken as true. The question is, whether setoff can be allowed in such case? The language of the bankrupt act, on the subject of set-off, is : “ That in all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and

Vol. I.)


(No. 3.

one debt set off against the other, and the balance only shall be allowed or paid.” 14 Stat. 526, § 20. It is clear that these claims are not mutual debts. They are not between the same parties. The notes exhibit a liability of the complainant and Gaylord; the policies, a claim of the complainant and his brother. But it is said that by the law of Illinois all joint obligations are made joint and several ; and, therefore, that the complainant is separately liable on the notes, and could be sued separately upon them. Granting this to be so, the debts would still not be mutual. If sued alone on the notes, the claim on the policies, which he might seek to set-off, pro tanto, against the notes, is a claim due not to him alone, but to him and his brother. His brother's consent that he might use the claim for that purpose would not alter the case. Had his brother's interest been assigned to him before the bankruptcy of the company, and without any view to the advantage to be gained by the set-off, the case would be different.

Nor does the case present one of mutual credit. There was no connection between the claims whatever, except the accidental one of the complainant's being concerned in both. The insurance company, so far as appears, took the notes without any reference to the policies of insurance ; and Gray Brothers insured with the company without any reference to the notes. Neither transaction was entered into in consequence of, or in reliance on, the other; and no agreement was ever made between the parties that the one claim should stand against the other. There being neither mutual debts nor mutual credits, the case does not come within the terms of the bankrupt law. If it can be maintained at all, it must be upon some general principle of equity, recognized by courts of equity in cases of set-off ; which, if it exists, may be considered as applicable under an equitable construction of the act. But we can find no such principle recognized by the courts of equity in England or this country, unless in some exceptional cases which cannot be considered as establishing a general rule. In Pennsylvania, it is true, set-off is allowed in cases where the claims are not mutual, and, in that State, under the decisions there, it is probable that set-off would be allowed in such a case as this. But we do not regard the rule adopted in Pennsylvania as in accord with the general rules of equity which govern cases of set-off. We think the general rule is stated by Justice Story, in his treatise on Equity Jurisprudence, sect. 1437, where he says: “ Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or conversely, of a separate debt against a joint debt; or, to state the proposition more generally, they will not allow a set-off of debts accruing in different rights. But special circumstances may occur creating an equity, which will justify even such an interposition. Thus, for example, if a joint creditor fraudulently conducts himself in relation to the separate property of one of the debtors, and misapplies it so that the latter is drawn in to act differently from what he would if he knew the facts, that will constitute, in a case of bankruptcy, a sufficient equity for a set-off of the separate debt created by such misapplication against the joint debt. So, if one of the joint debtors is only a surety for the other, he may, in equity, set off the separate debt due to his principal from the creditor; for in such a case the joint debt is nothing more than a security for the separate debt of the principal; and,

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