ON APPEAL FROM THE COURT OF Jan. 1870. 24th & 25th THIS was an appeal from a judgment of the Court of Queen's Bench for Lower Canada, affirming a judgment of the Superior Court sitting in review, Goods im ported from England into Quebec, consigned to M. & S., and **Present:-Lord Westbury, Sir James William Colvile, and Sir Joseph Napier, Bart. stored in the Customs Warehouse there, according to the Customs regulations, for freight, duties, and storage, were, by a contract in writing, pledged by M. & S. for advances made to them by G. & R., and a note of such pledge entered in the Book of the chief Officer of the Customs, specifying the conditions on which the loan was made, with a request to such Officer to hold the goods subject to the orders of G. & K., they paying the duty and storage charges before removal. L., a Creditor of M. & S, obtained judgment in an action against them, and, under a fieri facias, seized the goods so in Bond, the execution of which was opposed by G. &. K., who made an application main levée to the Court, on the ground, that by the above contract the property of M. & S. in the goods in question was conveyed to them to secure repayment of the advances made by them. The Judge of the Superior Court allowed such opposition, holding that the Opposants, G. & K., were Pledgees of the goods in question. Such judgment, though overruled by the full Court, and afterwards by the Court of Queen's Bench in Lower Canada on appeal, upheld by the Judicial Committee, who were of opinion, that the circumstances of the case and the dealings of the parties constituted a constructive delivery, and that the judgment which dismissed the opposition of G. & K., and gave effect to the seizure under the execution to their prejudice as Pledgees, could not be supported. which latter judgment reversed a judgment of the Superior Court, granting, upon the application of the Appellants, main levée of the seizure of certain goods taken in execution by the Sheriff of Quebec, while lying at the Government Warehouse in that City, under a fieri facias upon a judgment recovered by the Respondent, Lambert, against Maxwell & Stevenson, Merchants, of Quebec. To this seizure the Appellants filed an opposition afin d'annuler, alleging, in effect, that the goods had been assigned to them, before the writ was issued, in pledge by Messrs. Maxwell & Stevenson as security for an advance of $1,800, together with interest, commission, and other charges thereon; and that, at the time of the seizure, the goods were in their lawful possession as Pledgees as security for a sum of $2,058. 55c., to which the whole sum so due to them then amounted. To the opposition the Respondent pleaded the general issue, and also, as a special exception péremptoire en droit, that Messrs. Maxwell & Stevenson were, at the time of the advance, notoriously, and to the knowledge of the Opposants, insolvent, and had stopped payment; that the goods pledged constituted their whole estate, and that the transaction was illegal and in fraud of the Creditors. Evidence was entered into, the effect of which is stated in the judgment. The enquêtes of both parties having been closed, the case was heard on the merits before Mr. Justice Stuart, one of the Judges of the Superior Court, who, on the 2nd of July, 1867, gave judgment for the Appellants, declaring them Pledgees of the goods in question, and granting main levée of the seizure thereof. 1870. YOUNG v. LAMBERT. 1870. YOUNG v. The Respondent having inscribed the cause upon the roll for review before three Judges, it was again LAMBERT. argued before the Chief Justice Meredith, and Justices Stuart and Taschereau, and on the 5th of February, 1868, the Court gave judgment, reversing the judg ment of the 2nd of July, 1867, on the ground, that the Appellants did not obtain possession of the goods so as to give effect to the contract of pledge, and dismissed the opposition of the Appellants with costs. Mr. Justice Stuart dissenting. From this judgment the Appellants appealed to the Court of Queen's Bench of the Province of Quebec; and on the 19th of September, 1868, that Court gave judgment confirming the judgment of the Superior Court. The facts of the case, and the evidence, so far as it is material, are fully stated by the Judges in the reasons transmitted by them to the Judicial Committee. As the Respondents did not appear on the appeal, and the case was heard ex parte, these reasons formed the only grounds for the support of the judgment of the Court below; such reasons being specially referred to by their Lordships in their judgment, which overruled the decision of that Court, it is thought proper to give them entire. They were framed by Mr. Justice Badgley, and concurred in by Justices Duval, Caron, and Drummond, and were as follows "The circumstances of the case are the following: -The goods seized under the writ of execution, and the subject of this contention, were imported from Britain into Quebec by the Steamer St. David, and the freight being unpaid they were reported by the Shipmaster to the Customs' authorities at the port, and there landed and stored in the Customs Warehouse as consigned to the Defendants, a Commercial firm, and to be there held for freight and charges. The goods were received into the Warehouse on the 6th of August, 1864, by Metivier, the Warehouse-keeper, who then and there entered them in the usual manner in his store-book, with the names of the Consignees, and as subject to freight and charges upon them. This was done under the authority of the Provincial Customs Act (Consolidated Statutes of Canada, c. 17, s. 11, cl. 4, and s. 14, cl. 4), which required all imported goods to be entered for duty, but allowed them to be deposited for a limited time in the Warehouse without entry, after which they became subject to forfeiture for the duty chargeable upon them, the right of the Shipowner or Master for freight and charges being preserved in the meantime under the following provision of the Act: that, notwithstanding the landing of the goods and storage in the Warehouse before entry, nothing should affect any contract between the Owner or Master of the Vessel in which the goods had been brought to Canada and the Owner and Consignee of the goods." The Law allowed the landing of the goods for the convenience of the Shipowner or Master, instead of detaining the Vessel in port with the goods on board until the freight should be paid, but they remained subject to the same rights and liabilities under the Bill of lading as if they were still afloat, and subject to the lien and special privilege of the Shipowner or Master maintained by the Act, the Customs Warehouse, in which the goods were deposited, becoming, so to say, the Vessel. Under these circumstances, the Warehousekeeper was, as it were, in the performance of his duty, 1870. YOUNG v. LAMBERT. 1870. YOUNG V. LAMBERT. the Agent and depositary of the goods for the Shipowner or Master, to retain possession of them for him, and to prevent the exercise of any control over them by the Consignees until after the freight had been paid. It is not denied, that the Defendants, Maxwell & Stevenson, were the Consignees and Owners of the goods, but they did no act of ownership, and took no seeming interest in them until the 19th of August, 1864, when, being in want of funds, they applied to the Appellants for an advance of money upon the security of the goods, the possession of which they had not received, and the Appellants, having apparently satisfied themselves of the value of the goods, and of the title of the Consignees to them, from a cursory inspection of some documents in the hands of the latter, advanced to them their promissory note at three months for $1,800, the goods being worth £500 sterling, about $2,500, for which the Appellants received from the Consignees their written contract of pledge of the goods, showing the terms of the advance, and also their written delivery order to Metivier, the Warehouse-keeper, to give effect to their contract of pledge. The delivery order was forthwith presented by the Appellants at the Warehouse to Metivier, who there and then, on the same 19th of August, wrote across its face the word 'accepted,' and subscribed his signature thereto; he also made an entry in his store-book opposite to his original entry of the receipt of the goods into the Warehouse in the following words: subject to D. D. Young's order.' Metivier affirms, that was his practice at Quebec in the Warehouse, and that he made the entry in his store-book to keep his acceptance in mind, in order that in case the goods were claimed |