was necessary here, because it was known to be only an accommodation bill, and the drawee had no assets of the drawer's (a). But, independent of that consideration, the subsequent promise to pay, for which there was certainly an equitable consideration, put an end to any doubt. Gibbs, contra, admitted that this last objection was decisive. Lord KENYON, C. J. As to the case of Tindal v. Brown, I am always better satisfled 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 have or have not been given must depend on the circumstances of the case, of which the jury will judge; but here the subsequent promise is decisive. IN Per Curiam, Rule discharged. (a) Vid. Goodall v. Dolly, 1 Term Rep. 7!2. NEWSOM and Another against THORNTON and Another. goods of his indorsement principal by and delivery of the bill of ladthan by the degoods them livery of the selves; though knew not that he was factor; goods were conjoint account of ing, any more the indorsee and where signed on the N trover for certain barrels of beef and certain other bar- A factor cannot rels of pork, it appeared at the trial before Lord Ellen- pledge the borough, C. J. at the sittings after last Trinity term at Guildhall, that the plaintiffs were Irish merchants residing at Cork, and were used to consign provisions to Mathew Church, a merchant of London. The beef in question was shipped on board the Nancy by the plaintiffs in December, 1802, and consigned on their own account to Church as their factor for sale; and the bill of lading, signed by the captain, and dated "Cork, 17th December, 1802," was to deliver to order or assigns," and. was indorsed by Newsom, and transmitted to Church. The pork was shipped on board the Russell in May, 1803, and consigned * by the plaintiffs on the joint account of themselves and Church; and the bill of lading signed by the captain, and dated " Cork, 20th May, 1803," was to deliver “to Mathew Church or his assigns." The plaintiffs at the same time drew a bill on Church for half assigns; who the amount of the latter shipment; but it was never paid afterwards innor even presented, in consequence of the subsequent bank-livered it to the ruptcy of Church. Soon after the arrival of the bill of defend lading for the beef in December, Church being in embarras- their making an sed circumstances, obtained from the defendants a loan of on it, which 2007., which they agreed to advance him on having the bill of lading of the beef deposited with them; and, accordingly, the bill of lading was indorsed by Church to the defendants, the consignors and consignee, and a bill of to deliver the goods to the lading was sent consignee to his dorsed and de defendants up on condition of advance to him they failed to do, but claimed to regain it as a prior advances; security for held that such indorsement and delivery of the bill of lading did not divest the consignors' right to stop the goods in transitu upon the insolvency of the consignee, who had not paid for them. * [ 18 ] and 1805. NEWSOM against [ 19 ] and deposited with them as a security for that advance: but it did not appear that the defendants knew that the beef had been consigned to him only as factor. Church still conti THORNTON. Duing 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 money 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 500l. and upwards for Church, which they refused; but, nevertheless, contrived to obtain from him the bill of lading with his indorsement, he 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 beef, 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 consignee. Lord Ellenborough, in his direction to the jury, distinguished distinguished between the beef and the pork; that the first having been consigned to Church as a factor, gave him no authority to pledge the goods, but only to sell them for his principal; and that by the same rule he had no authority to 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 plaintiffs, 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 from them, and they hav ing obtained possession of the bill of lading from his clerk, with his indorsement, in the absence of Church, without complying with that condition, they had no right to retain the goods against the plaintiffs, who had applied in time to stop the delivery of them while in transitu; and were, therefore, 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 term 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 them to the indorsee, the bill of lading being a negotiable instrument by the custom of merchants, according to the authority of Lickbarrow v. Mason (a) (which was afterwards confirmed (a) 2 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 vendee, stop them in transitu to the latter, in case of his insolvency, not having paid for them; yet that if the vendee, having in his possession the bill of lailing indorsed in blank by the vendor, before such stopping in transitu, indorse and deliver it to a third person for a valuable consideration and without notice of the non-payment, the right of the vendor to stop in transit is thereby divested 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 vigore, like the indorsement of a bill of exchange; though to some purposes it was assignable by indorsement, so as to operate as a discharge to the captain who made a delivery bona fide to the assignee. H. Blae. 357. The latter judgment was in its turn reversed in the House of Lords in Tr. 33 Geo. 3, and a venire facias 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 nformal on the record M.S. The very elaborate opinion delivered by Mr. Justice Buller upon the principal question before the house, a copy of which he afterwards permitted me to take, I shall here subjoin, as it contains the most comprehensive 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 verdict was found upon the second trial, containing in substance the same fers as 1805. NEWSOM against THORNTON. [20] 1805. NEWSOM against THORNTON. 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 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 before the voyage performed, negotiable and transferrable by the shipper's endorsement 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 of merchants, indorsements of bills of lading in blank may be filled up by the person to whom they are so delivered 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 saying, 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.) Dom. Proc. 1793. BULLER, J. Before I consider what is the law arising on this case, I shall endeavour to ascertain what the case itself is. It appears that the two bills of lading were indorsed in blank by Turing, and sent so indorsed in the same state by Freeman 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 e. Langstaffe, Douglas, 496, where a man indorsed 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 note, whatever 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 Bench, that a blank indorsement has the same effect as an indorsement filled up to deliver to a particular person by name. In the case of Snee 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 decree was founded. 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 from what has been quoted by the counsel, and that case having occurred before the unfortunate year 1780 (a) no further account can be obtained) that though Lord Mansfield at first thought 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 (2 Term Rep. 674.) the bill of lading was to order or assigns, and the indorsement in blank; hut the Court held it to be clear that the property passed. He who 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 pleases; and (a) Lord Mansfield's papers were then Lurut, together with his house, in the riots of that period. jury to be the custom to pass the property by the indorsement and delivery of it; and that though it were admitted that a lactor had no general authority to pledge the goods of his it has the same effect as if it were filled up with an order to deliver to him. 1805. NEWSOM against THORNTON. |