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Colonial Cases

Rodger v. The Comptoir DEscompte de Paris and The Chartered Bank of India Australia and China 1869

[stoppage in transitu]

Rodger v. The Comptoir D'Escompte de Paris and The Chartered Bank of India, Australia and China

Judicial Committee of the Privy Council
Source:The Times, 5 February, 1869

(Present - Lord Chelmsford, Sit. J. Colville, and the Right Hon. Sir Joseph Napier.)
  This was an appeal from a judgment in the Supreme Court of Judicature at Hongkong, dated the 3d of September, 1867, in an action of trover, in which the respondents were the plaintiffs and the appellants were the defendants.
  The case involved a question of the stoppage of goods in transit to a large amount. On the part of the appellants it was alleged that there was not valuable consideration for the transfer of three bills of lading, so as to defeat the right of stoppage in transitu by the unpaid vendor, and further that the bills of lading were transferred to secure an antecedent debt, and the transfer was therefore invalid under the Factors' Acts.
  Sir R. Palmer and Mr. Manisty were heard in support of the appeal.
  Mr. Mellish, Q.C., commenced his address on the part of the respondents.
  The arguments were not concluded by the usual time of their Lordships' adjournment - 4 o'clock.
  The case will be continued today.

Source: The Times, 6 February, 1869.  

  This case, mentioned in The Times of yesterday, was resumed at the sitting of the Court. It involved a question as to the stoppage of goods in transitu to between 13,000 l. and 14,000 l. The appeal was from a judgment of the Supreme Court at Hongkong, in an action of trover. The appellants were the defendants in the action, and the respondents were the plaintiffs.
  For the appellants Sir Roundell Palmer, and Mr. Manisty, Q.C., appeared; and for the respondents Mr. Mellish, Q.C., Mr Kay, Q.C., and Mr. Holt.
  Mr. Mellish resumed his speech today, and was followed by Mr. Kay on the same side.
  Sir Roundel Palmer was heard in reply. The appeal was from a rule of the Supreme Court refusing a motion to set aside the verdict of trover brought by the respondents, who are two banking firms at Hongkong, against the appellants. who are the owners of a vessel called the Min. The ground of the action was that the appellants had refused to deliver the respondents three parcels of goods, they being the indorsees and holders of the bills of lading. It was alleged on the part of the appellants that there was no valuable consideration for the bills of lading so as to defeat the right of stoppage in transit by the unpaid vendors, and that the transfer was for an antecedent debt. On the part of the respondents the point was that they had become assignees of the goods and endorsees of the bills of lading bona fide for valuable consideration, and without notice of any trust or equitable lien affecting the goods, and therefore such trust or lien could not overreach the title of the respondents.
  The arguments occupied the whole of yesterday and part of today. Numerous authorities on both sides were quoted on the law relating to the stoppage of goofs in transitu, and on the question of notice or constructed notice, the opinion of Vice-Chancellor Wigram, confirmed by Lord Cottenham, was relied upon.
  Lord Chelmsford said the case had been exceedingly well argued on both sides, and was of considerable importance.  Their Lordships would take time to consider their judgment.

Source: The Times, 20 February, 1870

 This case, in which judgment was now given, was reported in The Times on a former occasion. It raised a question as to the stoppage of goods in transitu of the value of about 15,000 l. It was an appeal from a judgment of the Supreme Court of Hongkong.  Judgment was appointed to be given at 4 o'clock.
  Sir J. Napier, in pronouncing the judgment of the Committee, reviewed the various authorities on the law of stoppage in transitu, and referred to the subject of an antecedent debt which had been raised. His Lordship concluded an exposition of the law by allowing the appeal, with costs, by which the decision of the court below would be reversed.

Source: The Times, 24 January, 1871

(Present - Lord Cairns, Sir J. Colville, Sir J. Napier, and Sir L. Peel.)
  This case involved an important question as to payment of interest.
  Sir Roundell Palmer and Mr. Manisty, Q.C., were for the appellants; Mr. Kay, Q.C., and Mr. Holt for the respondents.
  The appeal was from the Supreme Court of Hongkong, and originated in another appeal from the same Court, in an action of trover before the Chief Justice at Hongkong the jury found for the plaintiffs, and on an appeal the Judicial Committee recommended to Her Majesty that the judgment of the 3d of June, 1867, should be set aside and a nonsuit entered. The sum in question was considerable, and the Supreme Court, in carrying out the orders of the Court, declined to give interest on the money which had been returned, on the ground that the Court had no such power. The parties appealed to Her Majesty in Council.  The rate of interest at Hongkong was 12 per cent., and was claimed from the 25th of September, 1867, to the day pf payment. It amounted to from 3,000 l. to 4,000 l.
  Sir Roundell Palmer and Mr. Manisty submitted that the parties who had set aside the verdict and obtained a nonsuit were entitled to the payment of interest on restitution being made. It would be monstrous if a person who was kept out of money for a long time had no right to interest.
  Mr. Kay and Mr. Holt contended that neither at law nor in equity could interest be obtained unless specifically mentioned, and this was not a case where interest could be given. The party now called upon to pay interest was not a wrong-doer, but only held the money until the Judicial Committee set the verdict aside.
  Lord Cairns, in giving judgment, said the question was one of considerable importance. It was the first and highest duty of every Court to see that no Act did an injury to any one of the suitors of the Court. In the case of "Blake v. Miller" the House of Lords had decreed interest, and with respect to appeals from India before their Lordships, he believed that the precedents would be found in favour of interest. Their Lordships were of opinion that the Court below had power to carry out the order as to the payment of interest on the principal and interest, exclusive of the costs, which, for obvious reasons, would be omitted. There was, however, a novelty in the matter, and as the Judge of the Court below was of opinion that he had no power to order interest, their Lordships would make no order on the subject, so that each side would bear its own costs. The interest claimed was 12 per cent., which would amount to a large sum.
  Lord Cairns said the interest would be at the usual rate allowed by the Court at Hongkong.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School