
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1804.
    Assignees of Byrnes, Bankrupt, v. Fuller.
    A promissory note had been given for some rice, and the rice had been bartered tor sugars by the purchaser of the rice, who afterwards failed in trade, and was declared a bankrupt; but before the bankruptcy, aqd in contemplation thereof, he gave up the sugars to the payee, of the said note, as the proceeds of the rice purchased from him, and in lieu thereof, and took back the note. It was held, that this transaction could not he considered in the light of a, stoppage in, transitu,
    
    Specal verdict, viz : “We find that Jos. Byrnes, on the 1st Jan. 1802, purchased from Messrs. Blake & Magwood, 97 barrels and 16 half barrels of lice, at I6s. 4d. per cwt., amounting to £501 13s. 4d., as per bill of parcels delivered at the sale. Also, that Jos. Byrnes invoiced the said rice as his own property, a,nd shipped the said rice on board the brig Washington, belonging to Blake & Magwood, commanded by (). Fuller, the defendant, consigned originally to Capt. Geo. Cross, at the Havana, for which Fuller signed a bill of lading on the 6th Jan 1802, as for so much rice shipped by said Byr >es, on his OW" account. Also, that pre. viously to the sailing of the said brig, accounts were received of the closing of the port of Havana against American vessels ; in consequence of which, it was judged proper that some papers, which would probably obtain an admission into the Havana, and which were in the reach of Fuller, should be procured ; and that Fuller shouldbeconsigt.ee: and the said Jos. Byrnes, in con, formity with this plan, gave Capt. Fuller instructions in writing to take charge of his letters to Capt. Cross ; to open them, and act upon them for the benefit of said Byrnes. Also, that Fuller sailed, and reached the port of Havana in safety ; where, after some delays, he was admitted, and sold the rice shipped as afore» said ; and the said Byrnes was informed by Capt. Cross, and by said Fuller, through Mr. Magwood, that the rice had been sold at 8 1-2 dollars per cwt., and that the proceeds thereof were invest, ed in 90 boxes of sugar, to be shipped on account of sai.d Byrnes. Also, that before the return of said brig, the said Byrnes stopped payment; and that Mr. Magwood, of the house of Blake & Mag. wood, being informed thereof, called on said Byrnes, and request, ed that said sugar, expected in the said brig, on account of said Byrnes, might be applied in payment of the price of the rjee aforg*. said, for which Byrnes had given a note for part, and the remainder stood open ; whereupon, Byrnes, thinking the request reasonable and just, declared that he would have no objection thereto, if the same could be legally done, in the circumstances the said Byrnes then was in. And on the arrival of the said brig, with the sugar, which was ten days after the said Byrnes had stopped payment, Fuller delivered the sugar to the said Blake & Magwood, without communication with, or authority from Byrnes. Also, that on the commission oi bankrupicy against Byrnes, some days Rfter the arrival of the sugar, upon the examination of Byrnes, he disclosed the circumstances aforesaid ; upon which this action was brought on the bill of lading of Fuller, and for an account of the proceeds of said rice ; and the jury submii the point of law to the court, whether or not, under all these circumstances, the plaintiffs are entitled to recover. If the court should be of opinion, that they are entitled to recover, we find for the plaintiffs $4112, t&e. If not, we find for the defendant.”
    Desaussuue & Ford, for the plaintiffs,
    contended that they were entitled to recover ; and that Blake & Magwood had no right to seize the sugar, as being in transitu : for that the rice which they had sold to Byrnes had been resold, and turned into sugar, &c.
    Pringle, contra.
    
    Blake & Magwood might repossess themselves of the pr. perty. Cited 2 Bos. & Pul. 407. Fuller in this case was a middle man, and the mere agent of Byrnes; and Byrnes had never become absolute owner of the rice, so that it might not be stopped in transitu : and the rice was only exchanged for sugar, which was liable to be stopped, as well as the rice it. ^eJC The property never attached in the assignees.
   The court were clear, that the sutrar. under the circumstances %{ this case, could not bv taken, in the way contended for by the defendant, under the bankiupt law, as goods in transitu : and therefore gave judgment for the plaintiffs.

Present, Johnson, Trezevant, and Brevard, Justices.

Note. See Abbot, 297, and authorities cited, concerning stoppage in transitu, or on their passage, to the consignee, and before, or at their arrival at fkepiace'of destination.  