1805. NEWSOM against THORNTON. his principal, yet if the principal indorsed the bill of lading to his factor generally, he thereby enabled him to hold himself out to the world as the ostensible owner of the goods, and sea was transferrable. In Fearon v. Bowers, in 1753, Lord 6. J. Lee held, That a bill of lading transferred the property, and a right to assign that property by indorsement; but that the captain was discharged by a delivery under either bill. In Snee v. Prescott, in 1743 (1 Atk. 245) Lord Hardwicke says, "Where a factor, by the order of his principal, buys goods with his own money, and makes the bill of lading absolutely in the principal's name, to have the goods delivered to the principal, in such case the factor cannot countermand the bill of lading; but it passes the property of the goods fully and irrevocably in the principal." Then he distinguishes the case of blank indorsement, in which he was clearly wrong. Ile admits too, that if upon a bill of lading between merchants residing in different countries, the goods be shipped and consigned to the principal expressly in the body of the bill of lading, that vests the property in the consignee. In Caldwell r. Ball, in 1786 (1 Term Rep. 205) the Court held that the indorsement of the bill of lading was an immediate transfer of the legal interest in the cargo. In Hibbert v. Carter, in 1787 (1 Term Rep. 745) the Court held again that the indorsement and delivery of the bill of lading to a creditor prima facie, conveyed the whole property in the goods from the time of its delivery. The case of God frey v. Furzo, 3 P. Wm. 185, was quoted on behalf of the defendant. A merchant at Bilboa sent goods from thence to B., a merchant in London, for the use of B., and drew bills on B. for the money. The goods arrived in London, which B. received, but did not pay the money, and died insolvent. The merchant beyond sea brought his bill against the executors of the merchants in London, praying that the goods might be accounted for to him, and insisting that he had a lien on thein till paid. Lord Chancellor says, when a merchant beyond sea consigns goods to a merhant in London on account of the latter, and draws bills on him for such goods, though the money be not paid, yet the property of the goods vests in the merchant in London, who is credited for them, and consequently they are liable to his debts. But where a merchan, beyond sea consigns goods to a factor in London, who receives them, the factor in this case, being only a servant or agent for the merchant beyond sea, can have no property in such goods, neither will they be affected by his bankruptcy. The whole of this case is clear law; but it makes for the plaintiffs and not for the defendants. The first point is this very case for the bill of lading here is generally to the plaintiffs, and therefore on their account; and in such case, though the money be not paid, the property vests in the consignee. And this is so laid down without regard to the question, whether the goods were received by the consignee or not. The next point there stated is, What is the law in the case of a pure factor, without any demand of his own? Lord King says he would have no property. This expression is used as between consignor and consignee, and obviously means no more than that, in the case put, the consignor may reclaim the property from the consignee. The reason given by Lord King is, because in this case the factor is only a servant or agent for the merchant beyond sea. I agree, it he be merely a servant or agent, that part of the case is also good law, and the principal may retain the property. But then it remains to be proved that a man who is in advance, or under acceptances on account of the goods, is simply and merely a servant or agent; for which no authority has been, or, as I believe, can be produced. Here the bills were drawn by Freeman apon the plaintiffs upon the same day, and at the same time, as he sent the goods to them; and therefore this must, by fair and necessary intendment, be taken to be one entire transaction; and, that the bills were drawn on account of the goods, unless the contrary appear.→ So far from the contrary appearing here, when it was thought proper to allege on this demurrer that the price of the goods was not paid, it is expressly so stated; for the demurrer says, that the price of the goods is now due to Turing and Son. But it finds that the other bills were afterwards paid by the plaintiff's; and consequently they have paid for the goods in question. As between and thereby to impose on persons like the defendants who were not cognizant of his real character as factor, but dealt with him on the supposition that the gods were consigued between the principal and mere factor, who has neither advance 1 nor engaged 1805. NEWSOM against THORNTON. 7 consigned to him on his own account, which it appeared was the fact in respect to the pork; and which latter therefore it must be admitted that he had authority to pledge. : Gibbs, sion of them whether they be in transitu or not: he has a right to sell or dis- Decreed, Gibbs, Park, and Marryat shewed cause against the rule; 1st, with respect to the pork, admitting that Church might, as joint owner with the plaintiffs, and not merely as their 1805. NEWSOM against THORNTON, Decreed, rst, That the factors should be paid; zd, The pawnees; and 3d, The surplus to the assignees The decree was just and right in saying that the consignor, who never had been paid for the goods, and the pawnees, who had advanced money upon the goods, should both be paid out of the goods before the consignee or his assignees should derive any benefit from them. That was the whole of the decree; and if the circumstance of the consignor's interest being first provided for, be thought to have any weight, I answer, 1st, That such provision was founded on what is now admitted to be an apparent mistake of the law, in supposing that there was a difference between a full and a blank indorsement. Lord Hardwicke considered the legal property in that case to remain in the consignor, and therefore gave him the preference. 2dly, That whatever might be the law, the mere fact of the consignor's being in' possession, was a sufficient reason for a court of equity to say, We will not take the possession from you till you have been paid what is due to you for the goods. Lord Hardwicke expressly said, this Court will not say, as the factors have re-seized the goods, that they shall be taken out of their hands till payment of the half price which they have laid down upon them. He who seeks equity must do equity; and if he will not, he must not expect relief from a court of equity. It is in vain for a man to say in that court, I have the law with me, unless he will shew that he has equity with him also. If he mean to rely on the law of his case, he must go to a court of law; and so a court of equity will always tell him under those circumstances. The case of Snee v. Prescott is miserably reported in the printed book: and it was the misfortune of Lord Hardwicke, and of the public in general, to have many of his determinations published if an incorrect and slovenly way: and perhaps, even he himself, by being very diffuse, has laid a foundation for doubts which otherwise would never have existed. I have quoted that case from a MS. note taken, as I collect, by Mr. John Cox, who was counsel in the cause; and it seems to me that, on taking the whole of the case together, it is apparent that whatever might have been said on the law of the case in a most claborate opinion, Lord Hardwicke decided on the equity alone arising out of all the particular circumstances of it, without meaning to settle the principles of law on which the present case depends. In one part of his judgment he says, that in strictness of law, the property vested in Tollett, at the time of the purchase but however that may be, says he, this Court will not compel the factors to deliver the goods without being disbursed what they have laid out. He begins by saying, the demand is as harsh as can possibly come into a court of equity. And in another part of his judgment he says, Suppose the legal property in these gools was vested in the bankrupt, and that the assignees had recovered, yet this Court would not suffer them to take out execution for the whole value, but would oblige them to account. But further, as to the right of seizing or stopping the goods in transitu, I hold That no man who has not equity on his side can have that right. I will say with confidence, that no case or authority till the present judgment, can be produced to shew that he has. But on the other hand, in a very able judgment delivered by my brother Ashhurst in the case of Lempriere e. Pasley, in 1788 (2 Term Rep. 485) he laid it down as a clear principle, That, as between a person who has an equitable lien, and a third person who purchases a thing for a valuable. consideration and without ng ice, the prior equitable lien shall not overreach the title of the vendee. This is founded on plain and obvious reason; for he who has bought a thing for a fair and valuable consideration, and without notice of any right or claim by any other person, misted of having equi y against him, has equity in his favour: and if he have law and equi'y both with bim, he cannot be beat by a man who has equal equity only. Again, in a very solema opinion delivered in this house by the learned and respectable Judge (a) who has often had the honour of delivering the sentiments of the Judges (a) Evre, then to your Lordships when you are pleased to require i', so lately as the 14th Lord C. B, May 1790, in the case of Kinloch e. Craig (3 Term Rep. 787) it was laid down that the right of stopping goods in transitu never occurred but as be C 3 tween t 1805. NEWSOM against THORNTON. their factor, have the same authority to pledge as well as sell the bill of lading, as he would have over the goods themselves when they arrived; yet he did neither the one ees. nor tween vendor and vendee; for that he relied on the case of Wright v. Campbell, 4 Burr 2050. Nothing remains in order to make that case a direct and conclusive authority for the present, but to shew that it is not the case of vendor and vendee. The terms Vendor and Vendee necessarily mean the two parties to a particular contract: those who deal together, and between who there is a privity in the disposition of the thing about which we are talking. If A. sell a horse to B. and afterwards sell him to C. and C. to D. and so on through the alphabet, each man who buys the horse is at the time of buying him a verdee; but it would be strange to speak of A. and D. toge her as vendor and vendee; for A. never sold to D. nor did D. ever buy of A. These terms are correlatives, and never have been applied, nor ever can be applied, in any other sense than to the persons who bought and sold to each other. The defendants, or Turing, in whose behalf, and under whose name and authority they have acted, never sold these goods to the plaintiffs; he plaintiff's never were the vendees of either of them. Neither do the plaintiffs (if I may be permitted to repeat again the forcible words of the noble Judge who pronounced the judgment in question) represent Freeman so as to be answerable for his engagements, or stand affected by any notice of those circumstances which would bar the claim of Freeman or his assignThese reasons, which I could not have expressed with equal clearness, without recurring to the words of the two great authorities by whom they were used, and to whom I always how with reverence, in my humble judgment, put an end to all questions about the right of seizing in transitu. Two other cases were mentioned at the bar, which deserve some attention. One is the case (a) 1 H. Blac. of the assignees of Burghall ». Howard (a) before Lord Mansfeld at Guildhall, in 159; where the only point decided by Lord Mansfield was, That if a con365.n. signee become a bankrupt, and no part of the price of the goods be paid, the consignor may seize the goods before they come to the hands of the consignee or his asssignees, This was most elearly right; but it does not apply to the present case: for when he made use of the word assignees, he undoubtedly meant assignees under a commission of bankrupt, like those who were then before him, and not persons to whom the consignee sold the goods; for in that case it is stated that no part of the price of the goods was paid. The whole cause turns upon this point. In that case no part of the price of the goods was paid, and therefore the original owner night seize the goods. But in this case the plaintiffs had paid the price of the goods, or were under acceptances for them, which is the same thing; and therefore the original owner could not seize them again. But the note of that case says, Lord Mansfield added, "and "this was ruled, not upon principles of equity only, but the laws of property." Do these words fairly import that the property was not altered by a bill of Lading, or by the indorsement of it? That the liberty of stopping goods in transitu is originally founded on principles of equity, and that it has, in the case before him, been adopted by the law, and that it does affect property, are all true; and that is all that the words mean; not that the property did not pass by the bill of lading. The commercial law of this country was never It better understood, or more correctly administered than by that great man. was under his fostering hand that the trade and the commercial law of this country grew to its present a nazing size: and when we find him in other instances adopting the language and opinion of Lord C. J. Holt, and saying, that since the cases before him it had always been held, That the delivery of a bill of lading transferred the property at law, and in the year 1767 deciding that very point, it does seem to me to be absolutely impossible to make a doubt of what was his opinion and meaning. All his determinations on the subject are uniform. Even the case of Savignac v. Cuff, of which we have no account, besides the loose and inaccurate note produced at the bar, (b) as I un lerstand it, goes upon the same principle. The note states that the counsel for the plaintiff relied on the property passing by the bill of lading; to which Lord Mansfield answered, The plaintiff has lost his (3) Cited in Term Rep. 66. |