50 Miss. 590 | Miss. | 1874
delivered the opinion of the court.
The material facts of this case, as presented by this record, are, that Y. L. Sanders & Co., a mercantile firm, located and doing business in the town of Greenville, in the county of Washington, in this state, were indebted to one M. Morris, in the sum of $251.98, as evidenced by their two promissory notes, one dated January 15, 1873, for $112.70, payable thirty days after date, the other, dated 1st of February, 1873, for $139.28, and payable thirty days after date.
On the 5 th day of March, 1873, the said M. Morris sued out
Upon issues joined on pleas in abatement, filed by the defendant in the attachments, traversing the truth of the alleged causes for which said attachments were sued out, the jury found the issues for the defendant, and that the attachments were wrongfully sued out, and assessed his damages, by reason thereof, at $253.90. Whereupon the plaintiff moved the court for a new trial, which motion was sustained by the justice of the peace and a new trial granted. From this ruling of the court in granting a new trial the defendant in attachments brings the cases to the circuit court of said county, on the 7th day of March, 1873, by writ of certiorari.
And on the 8th day of March, 1873, the defendants in error, Shryock and Eowland, merchants of St. Louis, Missouri, interposed a claim to the-property on which said attachments were levied, and their claim was sustained by the jury at the next December term of said circuit court, and judgment rendered in their favor for the possession of said property. And from this judgment the plaintiff below prosecutes this writ of error.
The main questions presented by this record for our consideration in disposing of this case are three: 1. Did the justice of
"With respect to the first question involving the jurisdiction of the justice of the peace, it will be seen, by reference to the twenty-third section of the sixth article of the constitution, that the civil jurisdiction of justices of the peace is limited to causes in which the principal of the amount in controversy shall not exceed the sum of one hundred and fifty dollars. In this case, at the time the attachments were sued out the record shows that the defendant was indebted to the plaintiff therein, in the sum of $251.98, which constituted, in the language of the constitution, the principal of the amount in controversy between the parties. And if the law, to prevent a multiplicity of suits and unnecessary accumulation of costs, prohibits a plaintiff from dividing his claim, so as to bring it within the jurisdiction of a justice of the peace, the justice in this case had no jurisdiction. And this, we think, is settled by the former adjudications of this court in the-cases of Grayson v. Williams, Walker, 298, and Schofield v. Pensons, 4 Cushman, 402. In the last mentioned case, the plaintiff below, on the 13th of May, 1850, held three notes against the defendant, one for $50, another for $44, and the third for $3.60. On that day he brought suit before one justice of the peace of Adams county on the note for $50, and on the same day another suit on the other notes before another justice of the peace of the same county. Judgments having been rendered by each justice of the peace for the plaintiff, the defendant prosecuted an appeal to the circuit court of said county, when the court, upon motion, dismissed both suits for the want of jurisdiction in the justices of the peace to render the judgments. The jurisdiction of justices of the peace was at that time limited to causes in which the
The next question is, Had the circuit court jurisdiction upon the return of the certiorari to try the causes de novo, and to try the right of property ? Section 1336 of the Code of 1871 provides that when any cause is removed by certiorari to the circuit court, the court shall be confined to the examination of questions of law arising or appearing on the face of the record and proceedings. And in case of affirmance of the judgment of the justice, the same judgment shall be given as on appeals. In case of a reversal, the circuit court shall enter up such judgment as the justice ought to have entered, if the same is apparent, or may then proceed to try the cause anew on its merits. There was no final judgment of the justice of the peace which could be brought into the circuit court, either by appeal or. writ of certiorari. Even if the justice had the legal right to set aside a verdict and grant a new trial, it would only bean interlocutory order in the progress of the cause, and not such a judgment as could be removed to the circuit court by either of the modes above mentioned. But the justice had no power to set aside the verdict and grant a new trial. Where there is a verdict in the justice’s court in a case in which he has jurisdiction, it is his duty to enter judgment on such verdict. His action in granting a new trial of the issue
This brings us to the third and last question proposed to be considered in this case, in the solution of which it becomes necessary to determine the legal effect of the levy of the attachments upon the right of the defendants ,in error, as vendors of the goods levied on, to stop them in transitu , upon the hypothesis that the justice of the peace had jurisdiction of the attachment suits.
' The right to stop goods in transitu, though first introduced and founded in equity, has long been considered and acted upon as a legal remedy. The courts of law, admitting the justice of the right, have recognized it in constant practice and extended a liberal aid in enabling an unpaid consignor or vendor to regain possession of property on its way to a vendee, who, from his circumstances, may not be in a condition to fulfill the terms of his contract. What was formerly a mere equitable claim is now, therefore, a legal possessory right. This right is nothing"' more than the extension of the lien which the vendor has on all sales for the price until after the delivery, to the very point- of the goods coming to the actual custody of the vendee or his agent. The vendee may defeat the right of the vendor to stop the goods in transitu by a bona fide assignment of the bill of lading for value. And we are not aware that the right can be defeated in any other
In the case under consideration, the actual shipment of the goods to the vendees, by their order, constituted a good contract of sale, and a good constructive delivery, so as to vest the property in the goods in the vendees, and place them at their risk. But though this proceeding vested the property in the consignees, it was subject to the well established right of the vendors to stop the goods in transitu, in case they were sold on credit, and the consignees became insolvent. This right may be exercised at any time before the goods reach their ultimate destination, and come to the possession of the consignees. And the consignors have a right to judge for themselves of the danger of such insolvency, and to take measures to guard against it by stopping the goods in their transit to the vendees, should their insolvency occur before the goods come to the possession of the consignees. The effect of such stoppage in transitu is not to rescind the contract, but to reinstate the vendors in their lien and right to hold the goods in security for the price. Stanton v. Eager, 16 Pick, 473; Buckley v. Furniss, 15 Wend., 137; Naylor v. Dennie, 8 Pick, 198; Hays v. Mouille, 2 Harris, 48; Cox v. Burnes, 1 Clarke (Iowa), 64; and 4 ib., 480; 17 Wend., 504.
In a late case, Harris v. Hart, 6 Duer, 606, this subject is dis
In the case at bar, the vendees have neither conveyed the .goods to bona fide purchasers for value, nor received them into their possession; but, on the contrary, under the influence of an honest impulse, actually refused to receive them, and that before the attachments were levied upon the property. And in this, ■finding that they were insolvent, they acted as honest men in declining to receive goods they could not pay for, and in immediately informing their vendors of that fact.
The adjudications upon this subject, notwithstanding some conflict in them, 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 them at the vendee’s risk, does not defeat the right of 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 subject to this right. That after their arrival at the place' of destination, and while in the hands of the carrier •or wharfinger or warehouseman, for the mere purpose of delivery to the vendee, the vendor may resume the possession. But the right is lost if the vendee receive actual possession; or, if after •their arrival at the place of destination, he exercises acts of ownership over the goods ; or his agent, having authority and power of disposal, exercises like acts. The transit continues until the goods come to the possession of the vendee or of some agent authorized to act in respect to the disposition of them, otherwise than by forwarding them to the vendee.
The right of stoppage is held not to be divested, though the goods be levied on by execution or attachment, at the suit of a. creditor of the vendee, provided it be exercised before the transitas is at an end. The vendor’s lien has preference; it is the elder lien, and cannot be superseded by execution or attachment. Smith v. Goss, 1 Campb., 282; Buckley v. Furniss, 15 Wend., 187; House v. Judson, 4 Dana, 11; Wood v. Yeatman, 15 B. Monroe, 270; and 2 Kent, 550.
In the case of O’Brien v. Norris, 16 Md., 122, it was held that the vendor’s right of stoppage in transitu, existing at the time of an attachment laid on the goods is not defeated or impaired by the attachment, nor altered by the sale of the goods by an order of court. Naylor v. Dennie, 8 Pick., 199 ; Butler v. Woolcot, 2 New Rep., or 5 Bos. & Pul., 64; Nicholas v. Lefeuvre, 2 Bing. (N. C.), 88, and Hays v. Mouille, 14 Penn. State, 48.
From the facts and circumstances of this case, as disclosed by the record, we think the right of stoppage in transitu existed at the time of the levy of the attachments, and that the filing of the claim to the property was a sufficient exercise of that'right.
The defendants in error have a right to recover the value of the goods in an action of trover, or they may waive the tort, and recover the proceeds of the sale thereof in an action of assumpsit^
As the justice of the peace had no jurisdiction of the ease, the circuit court could have none, and therefore it was error in that court to assume to try the cause upon its merits.
For this reason, the judgment must be reveised, and this court proceeding to render such judgment as the circuit court ought to-