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or the other; for the agreement was, that that bill of lading should be deposited with the defendants upon condition of a future advance; and in fact no future advance

was

1805.

NEWSOM against THORNTON.

lien, he standing in the place of the consignee. Lord Mansfiek did not
answer mercantile questions so: which, as stated, was no answer to the
question made. But I think enough appears on that case to shew the
grounds of the decision, to make it consistent with the case of Wright and
Campbell, and to prove it a material authority for the plaintiffs in this
I collect from it that the plaintiff had notice by the letter of ad-
vice, that Lingham had not paid for the goods; and if so, then according
to the case of Wright . Campbell, he could only stand in Lingham's
place. But the necessity of recurring to the question of notice, strongly
proves that if there had been no such notice, the plaintiff, who was the as-
signee of Lingham the consignee, would not have stood in Lingham's place,
and the consignor could not have seized the goods in transitu: but tha,
having seized them, the plaintiff would have been entitled to recover the full
value of them from him. This way of considering it makes that case a
direct authority in point for the plaintiffs. There is another circumstance
in that case material for consideration; because it shews how far only the
right of seizing in transitu extends, as between the consignor and consignee.
The plaintiff in that action was considered as the consignee; the defendant,
the consignor, had not received the full value for his goods; but the consignee
had paid 15cl. on account of them. Upon the insolvency of the consignee,
the consignor seized the goods in transitu; but that was holden not to be jus-
tifiable, and therefore there was a verdict against him. That was an action
of trover, which could not have been sustained but on the ground that the
property was vested in the consignee, and could not he seized in transitu as
against him. If the legal property had remained in the consignor, what ob-
jection could be stated in a court of law to the consignor's taking his own
goods? But it was holden, That he could not seize the goods; which could
only be on the ground contended for by Mr. Wallace, the counsel for the
plaintiff, that the property was in the consignee: but though the property
were in the consignee, yet, as I stated to your Lordships in the outset, if the
consignor had paid to the consignee all that he had advanced on account of
the goods, the consignor would have had a right to the possession of the
goods, even though they had got into the hands of the consignee; and upon
paying or tendering tha' money, and demanding the goods, the property would
have revested in him, and he might have maintained trover for them: but
admitting that the consignee had the legal property, and was therefore en-
titled to a verdict, still the question remained what damages he should reco-
ver; and in ascertaining them, regard was had to the true merits of the case,
and the relative situation of each party. If the consignee had obtained the
actual possession of the goods, he would have had no other equitable claim on
them than for 150l. He was entitled to no more, the defendant was liable to
pay no more; and therefore the verdict was given for that sum.
This case
proceeded precisely upon the same principles as the case of Wiseman v. Vag-
deont; where, though it was determined that the legal property in the goods,
before they arrived, was in the consignee, yet the Court of Chancery held
that the consignee shou'd not avail himse f of that beyond what was due to
him: but for what was due, the Court dirested an account; and if any thing
were due from the fratians to the Bonnells, that should be paid the plaintiffs.
The plaintiffs in this cause are exactly in the situation of the plaintiffs in that
case; for they have the legal progerly in the goods; and, therefore, if any
thing be due to them, even in equity, that must be paid before any person can
take the goods from them; and 520, was due to them, and has not been paid.
After these authorities, taking into consideration also that the is no case
whatever in which it has been holden that goods can be stopped in transitu,
after they have been sold and paid for, or uney advanced upon them bona
fide, and without notice, I do not conceive that the case is open to any argu
ments of policy or convenience; but if it should be thought so, I beg leave to
say, That in all mercantile transactions, one great point to be kept uniformly
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was made by them on it. The interest, therefore, in the goods remained as it did before; that is, in Church, the consignee of a moiety as factor for the plaintiffs, and the

vendee

in view is, to make the circulation and negociation of property as quick, as easy, and as certain as possible. If this judgment stand, no man will be safe either in buying or in lending money upon goods at sea. That species of property will be locked up; and many a man, who could support himself with honour and credit, if he could dispose of such property to supply a present occasion, would receive a check, which industry, caution, or attention could not surmount. If the goods are in all cases to be liable to the original owner for the price, what is there to be bought? There is nothing but the chance of the market; and that the buyer expects as his profit on purchasing the goods, without paying an extra price for it: but Turing has transferred the property to Freeman, in order that he might transfer it again, and has given him credit for the value of the goods. Freeman having transferred the goods again for value, I am of opinion That Turing had neither property, lien, nor a right to seize in transilu. The great advantage which this country possesses over inost, if not all other parts of the known world, in point of foreign trade, consists in the extent of credit given on exports, and the ready advances made ea isports: but amidst all these indulgences, the wise merchant is not unmindful of his true interests and the security of his capital. I will beg leave to state, in as few words as possible, what is a very frequent occurrence in the city of London: A cargo of goods of the value of zocol. is consigned to a merchant in London; and the moment they are shipped, the merchant abroad draws upon his correspondent here to the value of that cargo and by the first post or ship he sends him advice, and incloses the bill of lading. The bills, in in st cases, arrive before the cargo; and then the merchant in Londen must resolve what part he will take If he accept the bills, he becomes absolutely and unconditionally liable; if he refuse them, he disgraces his correspondent, and loses his custom directly. Yet to engage for 2000l. without any secarity from the drawer, is a bold measure. The goods may be lost at sea; and then the merchant here is left to recover his money against the drawer as and when he may. The question then with the merchant is, How can I secure myself at all events? The answer is, I w!!l insure; and then if the goods come safe, I shall be repaid out of them; or If they be lost, I shall be repaid by the underwriters on the policy: but this caunot be done unless the property vest in him by the bill of lading; for otherwise his policy will be void for want of interest; and an insurance, ia the name of the foreign merchant, would not answer the purpose. This is the case of the merchant who is wealthy, and has the 2soul. in his banker's hands, which he can part with, and not and any inconvenience in so doing: but there is another case to be considered, viz. Suppose the merchant here has not got the 200cl. aud cannot raise it before he has sold the goods?-the same considerations arise in his mind as in the former case, with this additional circumstance, that the money must be procured before the bills become due. Then the question is, How can that be done? If he have the property in the goods, he caugo to market with the bill of lading and the policy, as was done in Snee and Prescot; and upon that idea, he has hitherto had no difficulty in doing so: but if he have not the property, nobody will buy of him; and then his trade is undone But there is still a third case to be considered; for even the wary and opulent merchant often wishes tefsell his goods whilst they are at sea. I will put the case, by way of example, That barilla is shipped for a merchant here, at a time when there has been a dearth of that commodity, and it produces a profit of 251. per cent. whereas, upon an average, it does pot produce above 12. The merchant has advices that there is a great quantity of that article in Spain, intended for the British market; and when thet arrives, the market will be glutted, and the commodity much reduced in value. He wishes, therefore, to sell it immediately whilst it is at sea, and before it arrives; and the profit which he gets by that is fair and honourable: but he cannot do it if he have not the property by the bill of tading. Besides, a quick circulation is the life and soul of trade; and if the merchant

vendee of the other moiety, subject to the plaintiff's right of stopping in transitu, which could not be less, because Church had only a moiety, than if he had had the whole; and then the plaintiffs having exercised that right, in consequence of the insolvency of Church, as far as they could, in fact by demanding (a) the goods of the captain of the Russell, before their delivery to Church, or any other person authorized by him to receive them, the defendants, who obtained possession of them afterwards by the wrongful act of the captain, held them for the persons who were legally entitled to them. The plaintiffs, therefore, are entitled to recover not only a moiety, but the whole value of the pork; because, by the stoppage in transitu, Church's interest in the moiety as vendee never attached. 2dly, A's to the beef, which Church received merely as factor, it being clear that as such he had no authority to pledge (b); but could only sell the goods, however he might have appeared to the world as the visible owner, it follows à fortiori that the bill of lading, which is the mere symbol of possession,

(a) Vid. Bohtlingk v. Inglis, 3 East 381.

(b) Paterson v. Tash, 2 Stra. 1178, and Daubigny v. Duval, 5 Term Rep. 604.

merchant cannot sell with safety to the buyer, that must necessarily be retarded. From the little experience which I acquired on this subject at Guildhall, I am confident that, if the goods in question be retained from the plaintiff without repaying him what he has advanced on the credit of them, it will be mischievous to the trade and commerce of this country; and it seems to me that not only commercial interest, but plain justice and public policy forbid it. To sum up the whole in very few words: The legal property was in the plaintiff; the right of seizing in transitu is founded on equity. No case in equity has ever suffered a man to seize goods in opposition to one who has obtained a legal title, and has advanced money upon them; but Lord Hardwicke's opinion was clearly against it: and the law, where it adopts the reasoning and principle of a court of equity, never has and never ought to exceed the bounds of equity itself. I offer to your Lordships, as my bumble opinion, That the evidence given by the plaintiff, and confessed by the demurrer, is sufficient in law to maintain the action.

Achburst and Grose, Justices, also delivered their opinions for reversing the judgment of the Exchequer Chamber.

Eyre, C. J. Gould, J. Heath, J. Hotham, B. Perryn, B. and Thomson, B. contra.

This case stood over from time to time in the House; and was postponed, in order to consider a question which arose in another case of Gibson v. Minet, upon the nature and effect of a demurrer to evidence, which was thought to apply also to the present case; and, finally, The House reversed the judgment of the Exchequer Chamber, which had been given for the defendant; and ordered the King's Bench to award a venire de novo (upon the ground that the demurrer to evidence appeared to be informal upon the record) and that the record be remitted.

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1805.

NEWSOM against THORNTON.

[ 37 ]

[ 38 ]

could not give him a greater authority than the actual pos session of the goods themselves: for it is no more than an authority from the owner to the captain to deliver the goods to the person named therein; and such as every factor must necessarily have done before he can acquire possession of them and so far is the bill of lading from tending to mislead the purchaser or pawnee into a belief that the factor, with whom he is dealing, is the absolute owner of the goods mentioned in it, that it gives him a better opportunity of knowing the truth, by asking for the letter of advice which conveyed, or the invoice which accompanied it, than the mere view of the goods themselves would suggest to him. The case of Lickbarrow v. Mason (a) does not apply to a factor; for there the question arose upon the right of stopping in transitu, which can only exist as between vendor and vendee. Where there is no stoppage in transitu, or where that right is restrained, as was holden in that case by the previous indorsement of the bill of lading to a third person, for a valuable consideration, and without notice, the right of property remains in the vendee; but here Church never had any property as factor in the beef, as against the plaintiffs; he had only an authority to sell, and not to pledge. Considering, therefore, the bill of lading the same as the goods, by pledging it, he clearly acted beyond the scope of his au thority, and cannot bind his principals. The case of Salomons v. Nissen (b, was also between vendor and vendee; and it appearing that the indorsee of the bill of lading had reason to think that the goods had not been paid, the right of the vendor to stop them in transitu was affirmed. On the same ground, there was evidence here to shew, from the known course of trade between England and Ireland in salt provisions, that the defendants must have known when they received both the bills of lading, that the goods had not been paid for. The case of Wright and another, Assignees of Scott v. Campbell (c), which was the case of an indorsement and delivery of a bill of lading by a factor to one, as a security for his becoming bail for him, seems to come nearest to the present; but there the parties evidently me

(a) Vide ante, 20
(c) 4 Burr, 2046.

(5) 2 Term Rep. 674.

ditated

ditated a sale of the goods; and ultimately the verdict which had been found in favour of the assignees of Scott, to whom the bill of lading had been so indorsed, was set aside, upon the ground of there being evidence of collusion between him and the factor to cheat the principal; and so that case was explained by Buller, J. in Salomons v. Nissen.

Erskine and Garrow, contra. Admitting that the bill of lading of the beef was deposited with the defendants as a pledge for their advance, and not by way of sale of the goods; yet the possession of the bill, without any special indorsement, designating that Church held it in his character of factor for another person, gave him the absolute controul over the property, so as to pass it by indorsement and delivery to a third person for a valuable consideration without notice. The grounds on which Lickbarrow v. Mason (a) was decided, apply as well to the possession of a factor as of any other person; and the decision in Salomons v. Nissen went wholly beside that question, upon the grounds as well of a failure of consideration in the first instance, as of notice of the defect of title in the vendee, on account of non-payment of the goods; and the indorsee was even considered as a partner with the vendee, standing in the same condition. It is true, that Lickbarrow v. Mason was a case between vendor and vendee; but this Court decided it on the broad ground that the indorsement of a bill of lading for a valuable consideration and without notice, conveys per se, the legal property in the goods to the indorsee; nor can the judgment be maintained on any other footing; for considering it as the assignment of a bare authority to the captain to deliver the goods to the holder, there could be no pretence for saying that the second purchaser ought to stand in a better situation than the first, as against the vendor. After the venire de novo was awarded in that case, and the cause went down to trial a second time, the jury found especially the custom of merchants to pass the property of the goods named in a bill of lading by indorsement. The cause which stood immediately preceding that in the paper for trial at Guildhall, was Hunter v. Baring, which turned upon the indorsement of a bill of lading by a factor to a

(a) Ante 20.

1805.

NEWSOM

against THORNTON

[ 39 ]

third

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