21. And as on the one hand, the indorsement or delivery of the bill of lading by the consignor, does not necessarily enable the consignee to devest the consignor's right of stopping in transitu, so on the other hand, there may be circumstances equivalent to such indorsement and delivery, which may enable [376] the consignee to do this. As where Thompson

& Co. sent goods from Ireland to London, to be sold by Eustace & Holland their factors there, and wrote to them to insure the goods, and sent them a bill of lading not indorsed, but having the names of Eustace & Holland on the back, and being applied to by them for an indorsement, answered by letter that if the bill of lading was not indorsed, it was a mistake, and they would send an indorsement; upon which Eustace & Holland sold the goods; and it afterwards happening that they were unable to pay bills drawn upon them by Thompson & Co. on the general account, one Dick paid those bills for the honour of the drawers, and knowing all these transactions applied to them for an indorsement of the bill of lading, which they sent him; and Dick thereupon demanded the goods of the master of the ship, who refused to deliver them to him, but delivered them to the vendees of Eustace & Holland; upon this Dick brought an action against the master, which was tried before Lord Kenyon, and his Lordship ruled that the plaintiff

purchaser for a valuable consideration and without collusion, although the purchaser at the time knew that the consignor had received only acceptances, payable at a future day from the consignee for the amount, and that therefore in such case the consignor's right of stoppage in transitu was devested.

had, under such circumstances, no right to take the goods out of the possession of the vendees of Eustace Holland; Eustace & Holland being factors authorized to transfer the property in them, and having actually done so (c).

22. In the case last quoted there were special facts,

which were considered as equivalent to an in[377] dorsement of the bill of lading by the consignor. But if there be not such facts, and the bill be for delivery to order or assigns, and transmitted unindorsed, the holder thereof cannot by an attempt to transfer the property of the goods to a third person, devest the right of the consignor to stop them in transitu. This will appear by the following case. One Fox, a wine merchant at London, having ordered five pipes of wine from Messrs. Abbott & Co. of Oporto, they loaded them on board a vessel bound for London, and took from the master bills of lading for delivery to order or assigns. One of these bills they transmitted to Fox in a letter, wherein they said they had shipped the wine on his account, had sent him a bill of lading, and drawn upon him for the price. Fox accepted the bill of exchange thus drawn upon him, which was payable nine months after date. Before the bill of exchange became due, the wine arrived, and Fox not being able to pay the duties, it was sent to the King's warehouse, under the statute 26 Geo. 3. c. 59.; while it remained there, Fox being indebted to one Mary Nix, and called upon for payment, and unable to pay, sold the wine to her for .40. then paid to him, and the amount of his debt. He became bankrupt soon afterwards; and the agents of the consignors having paid the duties and obtained

(c) Dick v. Lumsden, Peake's N. P. Ca. 189.

the goods, Mrs. Nix brought an action against them for the value. The cause was tried before Lord Ellenborough and it was insisted on behalf of the plaintiff, that there was no difference between [378 ] the indorsement of a bill of lading by the con

signor, and the sending it inclosed in a letter of this import. But his Lordship declared himself to be of a different opinion, and held that the right of the consignor to stop the goods, was not devested under these circumstances (d).

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23. By the law of France (e) the right of the vendor, or of the person, who has advanced money at respondentia on the specific security of goods, cannot be devested by an assignment of the invoice or of the bill of lading, although the same law in favour of commerce gives to such an assignment, if free from fraud, the effect of devesting the right of the general creditors of the assignor to obtain possession of the goods in discharge of their debts; contrary to its own policy in other cases, which requires actual delivery of possession in order to effect this purpose, according to its general maxim, that a mere assignment does not vest the property, simple transport ne saisit (f). And the Ordinance, as I have already observed (g), expressly declares that the sale of a ship at sea shall not prejudice the creditors of the vendor.

24. But in cases of this nature, an important and dif

(d) Nix v. Olive, ante, page 364. Sit. at Guildhall, before Lord Ellenborough, Ch. J. after T. T. 1805.

(e) Valin on the French Ordipance, liv. 2. tit 10. Des Navires,

art. 3.

(f) Liv. 2. tit. 10. Des Navires,

art. 3.

(5) Ante, part 1. ch, 1. sect. 6,

ficult question of fact may arise upon the fair [379] ness and honesty of the assignment; and even as between the consignor and the original con signee the right to stop the goods may be doubtful in the particular circumstances of the case; and it would be a great hardship upon the owners and masters of ships, if they were obliged to exercise a judgment upon these doubtful matters of fact, and to decide upon them, and deliver the goods at their own peril. But I ap prehend the law does not altogether cast this burthen upon them. In the case of Caldwell v. Ball, which I have quoted just before, it was held that the master had discharged himself by delivering the goods to the person, to whom the consignor first indorsed the bill of lading; but in that case the question arose between two consignees, to each of whom a bill of lading had been indorsed, and there had been no countermand or attempt to stop in transitu, and the master happened to know the priority of indorsement, which was substantially to the owners of the ship, whereas it may often be out of the power of the master to inform himself sat+ isfactorily of the priority of indorsement. In an earlier case, which was tried before Chief Justice Lee at Guildhall, and which was an action brought by the assignee of the original consignee against the master, who had delivered the goods to the person, to whom the consignor had sent another bill of lading as a security, and to enable him to take possession of the goods on his behalf, if the consignee should fail, which had been the case; it appeared in evidence by the testimony [380] of merchants and masters of ships, that by

usage, in the case of indorsement of bills of

lading to different persons, the master was at liberty to deliver to whichever he thought proper; and upon that ground, the Chief Justice directed the Jury to find their verdict in favour of the defendant, and they accordingly did so (h). But perhaps this rule might upon further consideration be held to put two much power into the master's hands, and it might in some cases be inconsistent with the acknowledged right to stop in transitu, and defeat the beneficial exercise of it. And it may be collected from the decision of a late case (i), that if the master, being required to deliver the goods to an agent of the consignor, either expressly engage to do so, or say that he will not part with them, until he is certain of a safe delivery, and afterwards deliver them to the consignee or the persons claiming under him, he will be responsible to the consignor, provided it shall turn out that the consignor was legally entitled to countermand the delivery and take back the goods.

25. In general, where two opposite parties claim a right to receive the goods, both or either of them will be willing to give an indemnity to the master; and the master should in prudence deliver the goods to the party, upon whose indemnity he can most safely rely. But if a satisfactory indemnity is not offered, and the master must exercise a discretion; then if [381] the bill of lading has not been assigned over by the consignee, and he has failed, without doubt the master should deliver to the person, who claims for the use of the consignor. If the consignor has indorsed bills

(h) Fearon v. Bowers, 1 Hen. Blac. 364. note.

(i) Mills & another v. Ball. 2 Bos.

& Pull. 457. The defendant was a wharfinger; but the doctrine applies equally to the case of a master.