In re Talbot & Poggi

HAND, District Judge (after stating the facts as above). So far as concerns the goods in general order the petition must succeed., This follows from Rord Kenyon's decision in Northey v. Field, 2 Esp. 613. A similar ruling is reported as being made by Rord Ellenborough in Nix v. Olive, reported in Abbott’s Shipping, p. 377. In these cases the custody of the carrier is regarded as continued by the customs officials, who take tlie goods from the carrier and keep them till the buyer pays duties and freight. This case was followed likewise in Burnham v. Winsor, 4 Fed. Cas. 784, and in Mottram v. Heyer, 5 Denio (N. Y.) 629. Justice Barrett, on page 238 of Fraschieris v. Henriqnes, 6 Abb. Prac. (N. S.) 251, says that the contention was freely conceded at the liar. As to the other goods, the transit .was over, and the trustee must succeed. I do not mean that mere entry without unlading is in itself enough, because such a contention is answered by Harris v. Pratt, 17 N. Y. 219, in which goods had been entered while the property was still on board the vessel, and in which it was held that the transit was not over. That this was the theory appears from the words of Judge Denio on page 262 of 17 N. Y. On the other hand, in Mottram v. Heyer, supra, Chancellor Walworth, on page 632 of 5 Denio (N. Y.) distinctly says obiter that, if the goods have once been landed, the freight paid, and entry made, tlie custody of the officials is for the benefit of the buyer and the transit is at an end. The language is too long to quote, but the following words are significant: "And in such a case (entry under a warehousing system) I have no doubt that the rigid of stoppage in transitu should be considered as at an end the moment the goods are thus deposited, after a perfect entry for that purpose lias been made.” He based his actual decision upon the rule of Northey v. Fields, supra, holding (page 360) that: “The facts in ct idence would have justified the jury to find that tlie goods were not’ deposited in the public store, under any warehousing provisions of. the revenue law, but had been taken there by the customs house officers be [988] cause the consignees had neglected to pay the duties and obtain a permit to land the goods.” This is also the explanation given of the case by Justice Barrett in Fraschieris v. Henriques, supra, pages 259, 260, of 6 Abb. Prac. (N. S.), which is itself directly in point upon the facts at bar. Cartwright v. Wilmerding, 24 N. Y. 521, although a case under the factor’s act, is also significant, because the question there arose as to whether the consignee had got possession of the goods, which is the determining question in stoppage in transitu. The facts were that the factors had entered the goods for warehousing, had paid the freight, and deposited them in the bonded warehouse, but had not paid the duties. It was held that the custody for duties by the government did not destroy the buyer’s possession. Chancellor’s Walworth’s dictum in Mottram v. Heyer, supra, is quoted, at length apparently as though it had been part of the decision, and Justice Gould relies on it as an authority. I can find no contradiction anywhere in the authorities, and I believe it to be well-settled law that goods which have been unladed and remain, freight paid, in bonded warehouse after entry, are in the possession of the buyer, and that the transit is at an end. The question always is, in the words of Judge Denio in Harris v. Pratt, supra-, page 252 of 17 N. Y., whether “the goods remain in the possession of persons concerned in their transportation.” The collector holding.entered goods for duties only is not such a person. The case is analogous to this: Suppose that the carrier had deposited them in a warehouse which had run up charges against them. As soon as the consignee paid the freight, and the warehouseman had attorned to him, the transitas would be over, for the warehouseman’s charges were for. safe-keeping and did not concern the transportation of the goods. The custody of the collector under the warehousing system is even less a charge for transportation, and entry under the statute gives the full control which would result from attornment. The question all turns on whether the collector’s possession is a mere continuance of the carrier’s, or is solely for the duties, leaving the consignee otherwise full jus disponendi. When the freight has been paid and the goods entered, it is the latter. Bet an order pass in accordance herewith.