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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,

Rule discharged.

DERBISRIRO

against PARAUR.

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This

and where

on the

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.

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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

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

confirmed

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

1805.

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

jury

NEWSOM

against THORNTON.

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

1805.

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

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his

TRORNTON.

it has the same effect as if it were filled up with an order to deliver to him.
The next point to be considered is, What difference do the words “ to be
sold by the plaintiffs on Freeman's account," make in the present case? It
has been argued that they prove the plaintiff's to be factors only. But it is to
be observed that these words are not found in the bill of lading itself; and, .
therefore, they cannot alter the nature and construction of it. I say they
were not in the bill of lading itself; for it is expressiy stated that the bill of
lading was sent by Freeman in the same state in which it was received, and in
that there is no reu riction or qralisication whatever ; but it appeared by some
other evidence, I suppose by some leiter of advice, that the goods were so
sent, to be sold by the plaintiff's on Freeman's account. Sur posing that the
plaintiff's are to be considered as factors, yet if the bill of ladinz, as I shall
conterd presently, passes the legal property in the goods, the circunstance of
the plaintiffs being liable to render an account to Free nan for trose goods
afterwards, will not put Turing in a better condition in this caute; for a
factor has not only a right to keep goods till he is paid all that he has ad-
vanced or spended on account of the particular goods, but also till he is paid
the balance of his general account. The truth of the case, as I consider it,
is, that Freeman transferred the legal property of the goods to the plaintiffs,
who were to sell them, and pay themselves the $201. advanced in bills out of
the produce, and so be accountable to Freeman for the remainder, if the e
were any. But if the goods had not sold for so much as 5 ol, Freeman would
still have remained debtor to the plaintiffs for the difference; and so far only
they were sold on Freeman's account. But I hold, that a factor who has the
legal prope ty in goods, can never have that property taken from him, till he
is paid the uttermost farthing which is due to him. Kruger v. Wilcocks,
Ambl. 252. This brings me to the two great questions in the cause, which
are undoubtedly of as much importance to trade as any qnestions which ever
can xrise. The first is, Whether at law the property of goods at sea passes
by the indorsement of a bill of lading? The secou, Whether the defendant,
who stands in the place of the original owner, had a right to stop the goods
in transitu? And as to the first, every authority which can be adduced from
the earliest period of time down to the present hour, agree that at low the
property does pass as absolutely and as effer ually as if the goods had been
actually delivered into the hands of the consignee. In 1690 it was so de.
cided in the case of Wiseman v. Vandepułt, 2 Vern. 293. In 1997, the Court
determined again in Evans v. Marlett, that the property passes by the bill of
lading. That case is riported in 1 Ld, Ray. 271, and in 12 Mod. 156; and
both hooks agree in the points decided. Lord Raymond states it to be, that
if good, by a bill of lading are consigned to A., A. is the owner, and must
bring tre aciiop : but if the bill be special, to be delivered to A. to the use
of B., B. ought to bring the action : but if the hill be general to 4., and the
invoi e only shews that they are on account of B. (which I take to be the
present case) 4. onghat always to bring the action ; for the property is in
him, and B. has ply a tru-t. And tholi, C. J. says the consignee of a bill
of lading has such a property as that he may assign it over ; and Shower said
it hart been or adjudged on the Exchequer. In 12 Mod. it is said that the
Court heid that the invoice signified nothing; but that the copsigninent in
a bill of lading gives the property, except where it is for ne account of
another; that is, where on the face of the bill it imports to be for another.
In Wright u. Campbell, in 1767 (4 Barr. 2046) Lord Mansfield said, “ If
tbe goods are bona fide sold by the factor at sea (as they may be where no
other delivery can be given) it will be good notwithstanding the stat. 21
Jac. I. The vendee shall hold them by virtue of the bill of sale, though no
actual possession be delivered ; and the owner can never dispute with the
vendee, because the goods were sold bona fide, and by the owner's own autho-
rity." His Lordship added (though that is not stated in the printed report)
that the doctrine ju Lord Raymond was right, that the property of goods at

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Vol. VI.

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