« ForrigeFortsett »
vas necessary here, because it was known to be only an accommodation bill, and the drawee had no asscts of the drawer's (a). But, independent of that tonsideration, the subsequeut promise to pay, for which there was certainly ka equitable consideration, put on end to any doubt. Gibbs, contra, admite ted that this last objection was decisive.
Lord KENYON, C. J. As to the case of Tindal v. Brown, I am always better satisfed when I see the sense of rule laid down ; but I own I do not see the sense of the rule there referred to. Whether reasonable notice havior bare not been given must depend on the circumstances of the case, of which the jury will judge ; but here the subsequent promise is decisive. Por Curiam,
IN trover for certain barrels of beef and certain other bar. A factor cannot:
rels of pork, it appeared at the trial before Lord Ellen- goods of the borough, C. J. at the sittings after last Trinity term at Guild. principal by
indorsement hall, that the plaintiffs weré Irish merchants residing at and delivery of
thesh the bill of lad. Cork, and were used to consign provisions to Mathew
Wing, any more Church, a merchant of London. The beef in question was than by the de
livery of the shipped on board the Nancy by the plaintiffs in December, goods theme 1803, and consigned on their own account to Church as their selves; though
the indorsee factor for sale ; and the bill of lading, signed by the cap• koew not that
he was factor; tain, and dated “ Cork, 17th December, 1802," was to deliver " to order or assigns," and was indorsed by Newsom, goods were conand transmitted to Church. The pork was shipped on board joint account of the Russell in May, 1803, and consigned * by the plaintiffs on the consignors
and consignee, the joint account of themselves and Church; and the bill of and a bill of lading signed by the captain, and dated “ Cork, 20th Muy, tanie
; to deliver the 1803,” was to deliver “ to Mathew Church or his assigns." goods to the
consignee to his The plaintiffs at the same time drew a bill on Church for half a the amount of the latter shipment; but ir was never paid afterwards in
dorsed and de nor even presented, in consequence of the subsequent bank- livered it to the ruptcy of Church. Soon after the arrival of the bill of detend
on condition of lading for the beef in December, Church being in embarras- their making an
advance to him sed circumstances, oblained from the defendants a loan of on it, which 2001., which they agreed to advance him on having the bill they failed to
do, but claimed of lading of the beef deposited with them; and, accordingly, to regain it as a the bill of lading was indorsed by Church to the defendants, serie
buatns, prior advances
held that such
indorsement and delivery of the bill of lading did not divest the consignors' right to stop the goods in Prarvilu upon the insolvency of the consigdee, who bad not paid for them.
[ 18 ]
and deposited with them as a security for that advance : but it did not appear that the defendants knew that the beef bad been consigned to him only as factor. Church still continuing to be embarrassed, previous to his departure for Ireland, about the 12th of May, 1803, having before sent an order for the pork, agreed with the defendants in consideration of a further advance, to leave with them an order upon one Cole, who was his clerk, to indorse and deliver to them the bill of lading for the pork when it arrived; and, in consequence, upon his departure, he left word with Cole, that in case inoney was wanted during his absence, he should apply to the defendants for it ; and was to indorse and deliver to them the bill of lading when it arrived. After Church's departure, Cole, who had received the bill of lading, applied to the defendants for an advance of 5001. and upwards for Church, which they refused; but, nevertheless, contrived to obtain from him the bill of lading with his indorsement, le not being fully apprized of the agreement between them and his master, and understanding from them that immediately previous to Church's departure for Ireland, they had made another advance to him upon the promise of this assignment. Church stopped payment the latter end of June, and was soon after declared a bankrupt, not having paid for either the beef or pork. In the mean time, before he was declared a bankrupt, the pork having arrived, and the plaintiffs having been apprized of the insolvency of Church, they gave notice to the captain of the Russell to stop the delivery of it to Church or to the defendants, and tendered him the freight and charges : the captain, however, delivered the pork to the defendants upon the production of the bill of lading, and taking their indemnity. And by means of the other bill of lading they had previously obtained the possession of the beet, of which, as well as of the pork, the freight and other charges were tendered to the defendants, which they refused to accept or to return the goods. It was also proved, that the usual credit for provisions of this description, sent from Ireland, is three months; and, therefore, that a bill of lading, within that date, conveys to persons conversant in the trade, as the defendants were, intimation that the goods were probably not paid for by the con. signee. Lord Ellenborough, in his direction to the jury,
distinguished between the beef and the pork ; that the first 1805. having been consigned to Church as a factor, gave him no
Newsox authority to pledge the goods, but only to sell them for his against principal; and that by the same rule he had no authority TAORNTON 10 pledge the bill of lading, which was the inere emblem of the goods themselves. That as to the pork which was consigned to Church on the joint account of himself and the plaintifis, though he had a right to pledge it as a joint owner, yet having agreed to pledge it to the defendants only on condition of a further advance froin them, and they hav. ing obtained possession of the bill of lading from his clerk, [ 20 1 with his indorsement, in the absence of Church, without complying with that condition, they had no right to retain ihe goods against the plaintiffs, who had applied in time to stop the delivery of them while in transitu ; and were, there. . fore, entitled to recover the value of the pork as well as of the beef. And the jury accordingly found a verdict for the plaintiffs for the whole value of both parcels.
It was moved in the last terni to set aside the verdict, on the ground that the indorsement and delivery of a bill of lading of goods in transitu transferred the legal property in thein to the indorsee, the bill of lading being a negotiable instrument by the custom of merchants, according to the authority of Lickbarrow v. Muson (a) (which was afterwards
Cal . Term Rep. 63. That case first came on upon a demurrer to evidence, on which there was judgment for the plaintiff; this Court holding, that though the vendor of goods might, as between himself and the verdee, stou thear in transitu to the latter, in case of his insolvency, not having mid for Them ; yet that is the vendee, having in his possession the bill of lading indorsed in blank by the vendor, before such stopping in li ansilu, indorse and deliver it to a third person for a valuable consideration and without notice of the non-payment, the right of the vendor 10 stop in transitu is thereby difested as against such bona fide holder of the bill. This judgment was reversed upon a writ of error in the Exchequer Chamber; where it was considered that a bill of lading was not a negotiable instrument, the indorsement of which passed the property proprio ii,ore, like the indorsement of a bill or exchange ; Though to some purposes it was assignable by indorsement, so as to operate as a discharge to the captain who made a delivery bons fide to the assignee. H. Blac. 357. The latter jurignient was in its turn reversed in tbe Ilouse of Lords in Tr. 33 (ieo. 3, and a veniré (acias de novo directed to be awarded by B. R. 5 Term Rep. 367, and 2 H. Blac. 211. The ground of that reversal was, that the demurrer to evidence appeared to be informal ou the record M.S. The very elaborate opinion delivered by Mr. Justice Buller upon the principal question before the house, a copy of which ho afterwards permitted me to take, I shall here subjoin, as it contains the mosi comprehen. sive view of the whole of this subject which is anywhere to be found. A venire facias de novo having been accordingly awarded by B. R. a special Ferdict was found upon the second trial, containing in substance the same Masss
confirmed in Hunter v. Baring) where Lord Kenyon left it to the jury to find what was the effect of such an instrument by the custom of merchants; and it was found by the
as before, with this addition, that the jury found, that by the custom of merchants, bills of lading for the delivery of goods to the order of the shipper or his assigns, are, after the shipment, and hefore the voyage performed, negotiable and transferrahle by the shipper's indorsement and delivery, or transmitting of the same to any other person: and that by such indorsement and delivery or transmission, the property in such goods is transferred to such other person. And that by the custom or merchants, indorsements of bills of lading in blank may be filled up by the person to whom they are so deli. vered or transmitted, with words ordering the delivery of the goods to be made to such person : and according to the practice of merchants, the same, when filled up, have the same operation and effect as if it had been done by the shipper. On this special verdict, the Court of B. R., understanding that the case was to be carried up to the House of Lords, declined entering into a discussion of it, merely sayins, that they still retained the opinion delivered upon the former case : and gave judgment for the plaintiffs. 5 Term Rep. 683: .
(LICKBARROW and Another against Mason and Others, in Error.)
Doin. Proc. 1793.
BULLER, J. Before I consider what is the law arising on this case, I shalt endeavour to ascertain wbat the cage itself is. It appears that the two bills of lading were indorsed in blank by Turing, and sent so ipdorsed in the same • statc by Freemaa to the plaintiffs, in order that the goods might, on their arrival at Liverpool, be taken possession of, and sold by the plaintiffs on Freeman's account. I shall first consider what is the effect of a blank indorsement ; and secondly, I will examine whether the words, “ to be so sold by the plaintiffs on Freeman's account," make any difference in the case. As to the first, I am of opinion that a blank indorsement has precisely the same effect that an indorsement to deliver to the plaintiffs would have. In the case of bills of exchange, the effect of a blank indorsemnt is too universally known to be doubted; and, therefore, on that head I shall only mention the case of Russel v. Langstaffe, Donglas, 496, where a inan indorse: his name on copper-plate checks, made in the form of promissory notes, but in blank, i. e. without any sum, date, or time of payment : and the Court held, that the indorsement on a blank note is a letter of credit for an indefinite sum ; and the defendant was liable for the sum afterwards inserted in the pote, what. ever it might be, in the case of bills of lading, it has been admitted at your Lordships' bar, and was so in the Court of King's Beach, that a blank indorsenient has the same effect as an indorsement alled up to deliver to a particular person by name. In the case of Snce v. Prescott, Lord Hardwicke Thought that there was a distinction between a bill of lading indorsed in blank, and one that was filled up; and upon that ground part of his decrce was fouoded. But that I conceive' to be a clear mistake. And it appears from the case of Savignac v. Cuff (of which case I know nothing but froni what has been quoted by the counsel, and that case having occurred before the unfortunate year 1980 (a) no further account can be obtaioed) that though Lord Mansfield at first ihought that there was a distinction between bills of lading indorsed in blank and otherwise, yet he afterwards abandoned that ground. In Solomons v. Nissen, Mich. 1788 (: Terni Rep. 674.) the bill of lading was to order or assigns, and the indorsement in blank; but the Court held it to be clear ihat the property passed. He wlto delivers a bill of lading indorsed in blank to another, not only puts it in the power of the person to whom it is delivered, but gives him authority to fill it up as he pleascs ; and
(a) Lord Mansfield's papers were then burui, together with his house, in the riots of that perioda
jury to be the custom to pass the property by the indorsement and delivery of it; and that though it were admitted that a factor had no general authority to pledge the goods of
it has the same effect as if it were filled up with an order to deliver to him.