Maxwell and Co. - Mr. John Campbel - Mr. Sandford v. Stevenson and Co. - Mr. Serjeant Spanki - Mr. P. Robertson [1831] UKHL 5_WS_269

UKHL
Maxwell and Co. - Mr. John Campbel - Mr. Sandford v. Stevenson and Co. - Mr. Serjeant Spanki - Mr. P. Robertson
[1831] UKHL 5_WS_269
Statute 6 Geo. IV. c. 112. Where grain, situated in a bonded warehouse, was sold by the occupier to another, who ordered it to be transferred to an agent, making an advance on the faith of it; and the seller delivered his set of the keys to the agent, the other set remaining with the revenue officer: Held, (reversing the judgment of the Court of Session,) that, although no written agreement of transfer had passed between the seller and buyer, and no entry was made in the books of the revenue officers, yet complete delivery had been made to the agent, and that the above statute did not apply.By the 82d section of the 4 Geo. IV. c. 24. entitled “An act to make more effectual provision for permitting goods imported to be received in warehouses or other places, without payment of duty on the first entry thereof,” it is enacted, That, from and after the commencement of this act, every sale, fairly and bonâ fide made by the importer or importers, proprietor or proprietors, of any goods or merchandize which shall have been secured under the provisions of this act in any warehouse in the actual occupation of such importer or importers or proprietor or proprietors, such goods and merchandize, and the possession thereof, shall, by such sale, be transferred to and shall be vested in the purchaser or purchasers thereof, to all intents and purposes whatever, although such goods or merchandize shall continue in such warehouse; and such goods or merchandize so sold, or the possession thereof, or any title thereto, shall not pass to or be vested in any assignee or assignees of such importer or importers or proprietor or proprietors, under any commission of bankrupt which may issue against such importer or importers or proprietors, before such goods or merchandize shall have been removed by the purchaser or purchasers, or their assigns, out of or from such warehouse; and every such sale shall be valid against such assignee or assignees under any such commission of bankrupt, any law, custom, or usage to the contrary notwithstanding; provided, that upon every such sale there shall have been a written agreement, signed by the parties, or a written contract of sale, made, executed, and delivered by a broker or brokers, or other person or persons, legally

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In the month of July 1829 the respondents, Stevenson and Co., merchants in Leith, imported, by the Robert Brandt from Archangel, 1,229 quarters of oats. At this time they were the tenants of a bonded warehouse, situated in the Citadel of North Leith, in which they lodged the grain, in terms of the last

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“Leith, 14th July 1829.—Messrs. Maxwell & Co., Leith.—Gentlemen,—Per bearer, we hand you the keys of Sanders's lofts, No. 53–2 and 3, Citadel, North Leith, where the oats ex Robert Brandt are lying; and beneath you have a note of the different weighings by the porter at delivery. The quantity is 1,229 imperial quarters. We are, &c.

Thos. Stevenson & Co .”

Maxwell and Co. thereupon granted their acceptance for £2,000 to Rennie, on the credit of this consignment, and another of 500 quarters of wheat. This was acknowledged by Rennie in the following letter:
“Maxwell & Co., Leith.—Edinburgh, 15th July 1829.—Dear Sirs,—I have this day received from you your acceptance for £2,000, at 3 months, as advance on 500 qrs. wheat, as per order on Anderson and Gavin; also to account of about 1,200 qrs. of oats delivered to you by Thos. Stevenson & Co. Yours truly,

John Rennie .”

No written agreement passed between Stevenson and Co. and Rennie, and no transfer was made in the book of the officer of the customs.Early in August Rennie became bankrupt, and Stevenson and Co., on the 15th, presented a petition to the Judge Admiral, setting forth the sale to Rennie and his bankruptcy, the order of delivery, the above clause of the 6 Geo. IV. c. 112, and praying for a warrant of service upon the officers of the customs, upon Rennie and Maxwell & Co.; and “to decern and ordain the said collector, comptroller, and officer, having the charge of the said warehouse, to deliver to the petitioners the said cargo of oats, upon their paying the duties legally chargeable thereon; and in the meantime to grant an interdict, prohibiting and discharging the said John Rennie

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The officers of customs lodged answers, but the discussion on the merits took place with Maxwell & Co. alone. In defence, they maintained, 1st, that the delivery of the keys was not merely symbolical, but real and actual delivery of the grain; and, 2d, that the statute, 6 Geo. IV. c. 112. did not apply to this case, because it had reference to the case of a general bonded warehouse, where, from the variety of goods, the actual control and possession could not be given to the purchaser, but remained in that of the seller. Whereas, in the present case, the exclusive possession and control of the warehouse had been given to defenders, Maxwell and Co., except in so far as related to the duties. To this it was answered by Stevenson & Co.; 1st, that even at common law there had been no completed delivery, seeing that there was a joint custody, and consequently, the goods being still in transitu, they were entitled to prevent farther delivery being made; and, 2d, that the terms of the statute were quite explicit, the provision being express, that in order to form a complete sale there must be an entry made in the books of the officer.

The Judge Admiral pronounced this interlocutor:

and that the delivery of the petitioners' set of keys to Maxwell & Co. did not constitute a legal traditio: therefore appoints the said Maxwell & Co. to restore to the petitioners the keys of the warehouse, and prohibits and discharges them from interfering with the petitioners' right to said oats; but, in respect of the delivery which the petitioners made of the keys, finds them not entitled to expences; and with respect to the officers of the customs, in respect that the oats were entered by the petitioners, and bond granted by them for payment of the duties, finds, that said officers were not entitled to deliver the oats to any other person than the petitioners, unless a transfer had been made, in terms of the 9th section of the said statute; and as such transference did not take place, there was no occasion to call the officers of the customs as parties to this action; therefore assoilzies them, and finds them entitled to their expences.”
“Finds, that the oats in question, after being imported by the petitioners, were lodged in a bonded warehouse, of which the petitioners kept one set of keys and the officers of customs another, and the petitioners entered the goods at the customhouse, and granted bond for payment of the duties, after the usual manner; finds, that the mode of transferring such goods is provided for in the ninth section of the 6th of George the Fourth, chapter 112; finds, that the transfer to Maxwell & Co. was not made in terms of that provision of the statute,

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He thereafter recalled it, in so far as it “appoints the keys to be delivered to Stevenson & Co., in respect that the orginal petition contains no prayer to this effect, but quoad ultra adhere,” and communicated his opinion in the subjoined note. *Maxwell & Co. complained to the Court of Session by advocation, but their Lordships † (2d March 1830) affirmed the judgments by repelling the reasons of advocation, and remitting simpliciter, with expences. ‡

Footnote

* “It appears to me that the clause of the statute in question is precisely applicable to the case which has occurred, and that the object of the Legislature was to introduce a special mode of transference of all goods which were bonded in a cellar occupied by the proprietor of the goods, whether the occupation was qua proprietor or qua tenant; and it appears plain, that the occupation alluded to is that which existed at the time of the sale. In all probability the view of the Legislature was to prevent collusive or fictitious sales which might take place, if a mere delivery of one set of keys of the warehouse were deemed sufficient, for this being a latent act, the keys might be delivered one day and re-delivered the next: whereas, in the case of bonded goods, there is a joint custody of the officers of the revenue, and of the custodier of the cellar; and it was proper, not only that the joint custodiers should be both parties to the sale, but the mode of transference prescribed rendered the transaction a public act. Had the clause not been so express, I would have been induced to order an inquiry into the practice of different ports; but the words being, as I interpret them, clear, I do not think that such an inquiry would be justifiable.”‡ 8 Shaw and Dunlop, 618.† Lord Cringletie observed, This appeared to me to be one of the plainest cases in the world. It is true, that in the case of a party having goods in his private warehouse,

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Appellants .—The Court below have applied the provisions of the statute to a case which does not fall within it. These

Footnote

if he sell the goods and deliver up the keys that is tradition of every thing. There is nobody there to intimate to. The act of parliament, however, does not apply to that case, but to bonded warehouses alone. If statutes provide a mode of carrying any transaction into effect, it is void if they be not strictly complied with. Now the cellar in the occupancy of Stevenson and Company is just within the very words of the statute; and when they sell, what have they to do but to observe the requisites of the statute? The sale is only good, if transferred in the books. But it is said that the keys were deliverd up. Of what use were the keys, when the purchaser could not get in without the King's keys? They could not give him access, and were of no use but to authorize him to have the sale entered, and the goods transferred in the books. Even if the 6th Geo. IV. had never been passed, and the question were on the old law, I should say that this sale was not effectual; and I can have no sort of doubt that the interlocutor of the Judge Admiral is right.Lord Glenlee .—I am of the same opinion. The 6th Geo. IV. makes a distinction between the case where the goods are the property of the occupier of the warehouse, or of another party; and I have no doubt on the meaning of the words. The words are not, if the whole goods are sold; but, if any goods in the warehouse are sold, the act takes effect. Stephenson and Company were occupiers, and I am at a loss to see how the act should not apply. An attempt was made in the inferior court to distinguish when there were other goods in the warehouse; but there is a new view taken now, which astonishes me—that delivery of the key makes the buyer the occupier of the cellar. How did he come to be proprietor of the goods? The transference must first be made out to him, and it is good for nothing, if the solemnities required by the act are not preserved.Lord Pitmilly .—This question is attended with difficulty; and it is a new case, though, on considering it, I concur in the opinions delivered. The question depends entirely on the construction of the 9th section of the statute. There is a distinction made between goods belonging to the occupier of the warehouse, and goods belonging to a person not the occupier; and the act only applies to the former case. This is, because there cannot be intimation to the keeper of the warehouse; and the act provides a mode of transfer, by intimation to the King's officer. The statute does not say that the solemnities are not necessary where the keys are delivered; and I see no authority for saying that delivery of the keys, which is not mentioned in the statute, should be equivalent to entry in the books, which is required; and therefore, though this might have been a reasonable provision, yet, taking the words of the statute, I concur.Lord Justice Clerk .—I must say, after paying all attention to the act, &c. that so far from considering this a question free from difficulty, I think it one of great difficulty and nicety indeed, and I doubt exceedingly how far the construction put upon the statute is applicable to the case here. I do not think the facts are sufficiently set forth in the record, particularly as to the character of cellars for bonded corn. If there were in the cellar other goods which could not be taken out without payment of the duties, the act of parliament unquestionably applies, as, in such a case, it would be merely an attempt to give symbolical delivery, by delivering, for half an hour, the keys which must be forthcoming to take out the other goods.

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Footnote

The case alluded to seems to be that of a general bonded warehouse; and the statute provides a rule of transfer, without removal, to afford facility for the purposes of trade. The meaning is plain, and the reason was, that no intimation could be made to the keeper of the cellar, who is the vender himself. But the case here is different. We must, under this record, assume that there were no other goods in the cellar. Then, this person being occupier, is his case provided for? I think it is attended with very considerable doubt; and when it is averred that, in practice, entry in the books is never required, in any great port in the kingdom, in circumstances like the present, I confess that I doubt exceedingly the application of the statute.

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Respondents .—The words of the statute are plainly applicable to every sale of bonded property, where the goods are within any warehouse occupied by the seller. Numerous questions have arisen at common law as to what should be held constructive on actual delivery where goods were so situated; and in order to obviate these disputes (which were highly prejudicial to commerce) the legislature expressly enacted, that if goods, situated in the warehouse of the seller, should be sold, and actual delivery not made, they should only be held to be delivered provided a written transfer were executed, and an entry thereof made in the books of the officer. But in the present case the goods were situated in premises occupied by the respondents, for the rent of which they are responsible, were never delivered, no transfer made, and no entry in the revenue books. It never could be the intention of the legislature to establish a rule in such general terms, which was to have reference only to particular classes of cases, and which would necessarily be productive of litigation, in ascertaining the matter of fact whether the particular case fell within the class.Lord Chancellor .—My Lords, I really consider the present question so perfectly free from doubt, that I do not trouble you to hear the counsel for the appellant in reply. Their Lordships in the Court below appear to have differed extremely upon it. One says, that it appears to him one of the plainest cases in the world; and then he goes on to state, as a general maxim of law, that “if statutes provide a mode of carrying any transaction into effect, it is void if they be not strictly complied with.” The rule of law is much nearer the reverse; for unless the statute is imperative, and provides, expressly or by plain implication, for the invalidity of an

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The House of Lords ordered and adjudged, That the interlocutors complained of be reversed.Appellants' Authorities .—1 Bell, 175; Auld, June 12, 1811; (F. C.) Knowles, 5 Barn. & Ald. 134; 1 Bell, 195.Solicitors: Richardson and Connell— M'Rae,—Solicitors.