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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
in any thing for his principal, the principal has a right at all times to take
back his goods at will: whether they be actually in the factors possession,
or only on their passage, makes no difference; the principal may countermand
his order: and though the property remain in the factor till such counter-
mend, yet from that moment the property revests in the principal, and he
may maintain trover. But in the present case the plaintiffs are not that mere
agent or servant; they have, advanced 52cl. on the credit of these goods,
which at a rising market were worth only 557.; and they have besite, as I
conceive, the legal property in the goods under the bill of lading. But it
was contended at the bar that the property never passed out of Turing; and
to prove it, Hob. 41 was cited. In answer to this I must beg leave to say,
that the position in Hobart does not apply; because there no day of pay-
ment was given; it was a bargain for ready money; but here a month was
given for payment. And in Nay's Maxims, 8, this is laid down: "If a
man do agree for a price of wares, he may not carry them away before he
hath paid for them, if he have not a day expressly given to him to pay for
them." Thorpe v. Thorpe, Rep. temp. Holt, 96, and Brice v. James, Rep.
temp Ld. Mansfield, S. P. So Dy. 30 and 76. And in Shep. Touch 222, it
is laid down, That if one sell me a horse, or any thing for money, or any other
valuable consideration, and the same thing is to be delivered to me at a day
certain, and by our agreement a day is set for the payment of the money, it
is a good bargain and sale to alter the property thereof; and I may have an
action for the thing, and the seller for his inouey. Thus stand the authorities.
on the point of legal property; and from hence it appears that for upwards
of to years past it has been the universal doctrine of Westminster-Hall, that
by a bill of lading, and by the assignment of it, the legal property does pass.
And, as I conceive, there is no judgment nor even a dicum, it properly un-
derstood, which impeaches this long string of cases. On the contrary, if any
argument can be drawn by analogy from older cases on the vesting of pros
perty, they all tend to the same conclusion. If these cases be law, and if
the legal property be vested in the plaintiff's, that, as it seems to me, puts a
total end to the present case; for then it will be incumbent on the defendants
to shew that they have superior equity which bears down the letter of the law;
and which entitles them to retain the goods against the legal right of the
plaintiffs, or they have no case at all. I find myself justined in saying that
the legal title, if in the pla ntiffs, must decide this cause by the very words
of the judgment now appealed against; for the noble Lord who pronounced
that judgment, emphatically observed in it," that the plaintiffs claim ander
"Freeman; but though they derive a title under hun, they do not represent
"him, so as to be answerable for his engagements. nor are they affected
by any notice of those circumstances which would bar the claims of him or
"his assignees." This doctrine, to which I fully subscribe, seems to ine to
be a clear answer to any supposed lien which furing may have on the goods
in question for the original price of them. But the second question made in
the case is, that, however the legal property be decided, the defendants, who
stand in the place of the original owner, had a right to stop the goods in
transitu, and have a lien for the original price of them. Before I consider the
anthorities applicable to this part of the case, I will beg leave to make a few
observations on the right of stopping goods in transitu, and on the nature and
principle of liens, 1st. Neither of them are founded on property; but they
necessarily suppose the property to be in some other person, and not in him
who sets up either of these rights. They are qualified rights, which in given
cases may be exercised over the property of another. and it is a contradic
tion in terms to say a man has a lien upon his own goods, or a right to stop
his own goods in transitu. If the goods be his, he has a right to the posses-

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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-
pose of them as he pleases, without the option of any other person; but he
who has a lien only on goods, has no right so to do; he can only retain them
till the original price be paid and therefore if goods are sold for 5ool. and
by a change of the market, before they are delivered, they become next day
worth cool. the vendor can only retain them till the 500l. be paid, unless the
bargain be absolutely rescinded by the vendee's refusing to pay the 500l.—
2dly. Liens at law exist only in cases where the party entitled to them has the
possession of the goods; and if he once part with the possession after the
lien attaches, the lien is gone. 3dly. The right of stopping in transitu is
founded wholly on equitable principles, which have been adopted in courts
of law; and as far as they have been adopted, I agree they will bind at law
as well as in equity. So late as the year 169, this right, or privilege, or
whatever it may be called, was unknown to the law. The first of these pro-
'positions is self-evident, and requires no argument to prove it. As to the
second, which respects liens, it is known and unquestionable law, that if a
carrier, a farrier, a taylor, or an inn-keeper, deliver up the goods, his lien
is gone. So also is the case of a factor as to the particular goods: but, by
the general usage in trade, he may retain for the balance of his account all
goods in his hands, without segard to the time when or on what account he'
received them. In Snee v. Prescott, Lord Hardwicke says, that which not
only applies to the case of liens, but to the right of stopping goods in tran-
situ under circumstances similar to the case in judgment; for he says, where
goods have been negotiated, and sold again, there it would be mischievous
to say that the vendor or factor should have a lien upon the goods for the
price; for then no dealer would know when he purchased goods safely. So
in Lempriere. Pasley, (2 Term R. 485) the Court said it would be a great
inconvenience to commerce if it were to be laid down as law, that a man could
never take up money upon the credit of goods consigned till they actually ar
rived in port. There are other cases in which my judgment apply as strongly
against the right of seizing in transitu to the extent contended for by the de-
fendants: but before I go to them, with your Lordships' permission, I will
state shortly the facts of the case of Snee v. Prescott, with a few more obser
vations upon it. The doctrine of stopping in transitu owes its origin to Courts
of Equity; and it is very material to observe that in that case, as well as many
others which have followed it at law, the question is not as the counsel for
the defendants would make it, Whether the property vested under the bill of
lading? for that was considered as being clear; but Whether, on the insol-
vency of the consignee, who had not paid for the goods, the consignor could
countermand the consigument? or, in other words, divest the property which
was vested in the consignee? Snee and Baxter, assignees of John Toller v.
Prescott and others. Atk. 245. Tollef, a merchant in London, shipped to
Ragueneau and Co. his factors at Leghorn, serges to sell, and to buy double
the value in silks; for which the factors were to pay haif in ready money of
their own, which Tollet would repay by bills drawn on him. The silks were
bought accordingly, and shipped on board Dawson's ship, marked T; Daw-
son signed three bills of lading, to deliver at London to factors, consignors,
or their order. The factors indorsed one bill of lading in blank, and sent it
to Tollet, who filled up the same and pawned it. The bilis drawn by the
factors on Tollet were not paid, and Tollet became a bankrupt. The factors
sent another bill of lading, properly indorsed, to Prescott, who offered to pay
the pawnee, but he reused to deliver up the bill of lading: on which Pres-
cott got possession of the goods from Dawson, under the last bill of lading.
The assignees of Tollet brought the bill to redeem by paying the pawnee out
of the money arising by sale, and to have the rest of the produce paid to
them; and that the factors, although in possession of the goods, should be
considered as general creditors only, and be driven to come in under the com
mission.

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

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tween

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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.

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