1805. NEWSOM against THORITON. [ 40 ] third person, for a valuable consideration without notice; and that was holden by Lord Kenyon to conclude the principal's right to stop in transitu. [Le Blanc, J. I do not understand that Hunter v. Baring was the case of a factor who had pledged the bill of lading. - Erskine answered, That he would not undertake to say that it was.] The case of Wright v. Campbell (a) however was the case of a bill of lading pledged by a factor as a security to another, who had become bail for him; and the very ground of collusion, on which the new trial was ultimately granted, and the language used by Lord Mansfield shew, that if the transaction had been considered as a fair one, the transfer of property, by the indorsement to the extent of the pledge, would have been sustained. No sale could have been there intended; for the value of the goods was much beyond the sum for which the bill of lading was pledged as a security: but if such a pledge by a factor were at all events void, it was nugatory to consider the question of collusion (b), [Lord Ellenborough, C. J. The indorsement in that case was absolute as for a sale, and not as a pledge; that is, the security meant to be given by the indorsement of the bill of lading was through the medium of a sale, and not of a pledge. Now here there is no ground for saying, That the parties meditated an immediate sale of the goods by depositing the bill of lading: it was deposited as a pledge for the repayment of the loan.] The case of Wright v. Campbell was not put on that ground; nor was it so considered by any of the Court in commenting on it in Lickbarrow v. Mason; but the true principle is, That if one man put it in the power of another to cheat a third person, he must abide the consequences; and it is the less necessary to make an exception to the general rule in the case of a factor, because the principal may always prevent the mischief by making a special indorsement to his correspondent by the name of his Factor; which will give notice of the transaction to every person into whose hands the bill of lading comes. Lord ELLEN BOROUGH, C. J. There are two subjects of consideration: the bill of lading for the pork, and that for (a) 4 Burr. 2046. (4) It was necessary, in either view of the case, to grant a new trial, as the first verdict was in support of the validity of the indorsement of the bill of Jading. the the beef. First, As to the pork. As there was no consideration paid for that bill of lading by the defendants, they not having in fact made any advance upon it, as they had engaged to do, and upon the faith of which it was agreed to be deposited with them, there was nothing to divest the original right subsisting in the consignors to stop the goods in transitu, upon the insolvency of the consignee, who remained debtor for them. Then as to the beef. I should be very sorry if any thing fell from the Court which weakened the authority of Lickbarrow v. Mason, as to the right of a vendee to pass the property of goods in transitu by indorsement of the bill of lading to a bona fide holder, for a valuable consideration, and without notice. For as to Wright v. Campbell, though that was the case of an indorsement of a factor, it was an outright assignment of the property for value: Scott, the indorsee, was to sell the goods, and indemnify himself out of the produce, the amount of the debt for which he had made himself answerable. The factor at least purported to make a sale of the goods transferred by the bill of lading, and not a pledge. Now this was a direct pledge of the bill of lading; and not intended by the parties as a sale. A bill of lading indeed shall pass the property upon a bona fide indorsement and delivery, where it is intended so to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended; but it cannot operate further. Now if the factor had been in possession of the goods themselves, and had purported to sell them to the defendants bona fide, the property would have passed by the delivery; but not if he had only meant to pledge them, because it is beyond the scope of a factor's authority to pledge the goods of his principal. The symbol then shall not have a greater operation to enable him to defraud his principal than the actual possession of that which it represents. The principal who trusts his factor with the power to sell absolutely, shall so far be bound by his act; but the defendants shall not extend the factor's act beyond what was intended at the time; and here only a pledge was intended, which he had no authority to make. I consider the indorsement of a bill of lading, apart from all fraud, as giving the indorsee an irrevocable, uncountermandable right to receive the goods; that is, where it is meant to be dealt with as an assignment 1805. NEWSOM against f THORNTON, [41] 1805. NEWSOM against THORNTON, [ 42 ] [ 43 ] assignment of the property in the goods; but not where it is only meant as a deposit by one who had no authority to do so; and having been dealt with in this case only as a deposit, it cannot be made into a sale, in order to give it effect. GROSE, J. I agree entirely with what my Lord has said respecting the two bills of lading of the pork and beef. With respect to the latter, it would be very extraordinary that a bill of lading, sent to a factor, should be able to confer upon him more power over the property than the possession of the thing itself. It is admitted, That a factor cannot pledge the goods of his principal by delivery of the goods themselves: then is it not inconsistent to say that he may do so by delivery of the bill of lading? If his delivery of the goods themselves as a pledge will not pass the property, much less shall his delivery of the bill of lading operate in that manner. LAWRENCE, J. The question is, Whether, if a factor have no property in the goods of his principal so as to dispose of them otherwise than according to the authorny delegated to him, namely, by sale, he can have a greater disposing power over them by means of his possession of the instrument, which gives him authority to receive them, than the possession of the goods themselves, when received, would give him? In Wright v. Campbell the Court only said, That if it were a bona fide sale, it should bind the principal: they did not go the length of saying, That a factor could pawn the bill of lading received from his principal. In the case of Lickbarrow v. Mason, some of the Judges did indeed liken a bill of lading to a bill of exchange, and consider that the indorsement of the one did convey the property in the goods in the same manner as the indorsement of the other conveyed the sum for which it was drawn; but when the case was before the Exchequer Chamber, there was much argument to shew, that in itself the indorsement of a bill of lading was no transfer of the property, though it might operate as such in the same manner as other instruments may be evidence of the transfer of property. As if goods be sold by a merchant abroad to his correspondent here, and the bill of lading be sent to him indorsed, to deliver the goods to the vendee or his order: there the transfer fthe goods may be evidenced by such indorsement; and if the the vendee part with the property in the goods while they are yet in transit, and before, his property in them is divested by the vendor's stopping them in transitu, and which assignment of the vendee's property may be evidenced in like manner by his i dorsement to another, then, according to Lickbarrow v. Mason, the original vendor's right to stop. them in transitu would be divested. Therefore, all that that case seems to have decides, That where the property in the goods passed to a vendestbeet only to be divested by the vendor's right to stop them wie in transitu, such right must be exercised, if at all, before the vendee has parted with the property to another for a valuable consideration, and bona fide, and by iadorsement of the bill of lading giving him a right to recover them. And in this case there is no ground to complain of the defendants' having been deceived by means of the bill of lading; for it would have been very easy for them to have inquired for the letter of advice which brought it; which would have shewn that Church held it as a factor, and not as vendee of the goods: and if persons will neglect all precaution, and advance money on goods without inquiring whether the party had any right to dispose of them or not, they must bear the loss, if it turn out that he had no authority so to do. LE BLANC, J. I do not know that the trade of the country will suffer much risk by our holding, that in a case where if the goods themselves had come into the factor's hands he could not pledge them, he shall not be able to pledge them by means of the instrument which gives him authority to receive the goods. Some of the cases, indeed, state the opinion of the Judges generally, that an indorsement of a bill of lading will pass the property; but that must be taken with reference to the circumstances of the case, and is not to be applied to the case of a factor pledging the goods of his principal, but to that of a vendor selling goods in which he has a property. The cases shew, indeed, that where either vendee or factor intend to sell the goods, the indorsement of the bill of lading for that purpose will bind the vendor or principal. The case of Wright v. Campbell appears, I think, to be that of a sale; for it was agreed that Scott the indorsee of the bill should sell the goods. But at least we may say of it, that it is not an authority for holding that a factor may 1805. NEWSOM against THORNTON. [ 44 ] 1805. NEWSOM. against THORNTON. [ 45 ] Friday, A policy of in surance on a ship on a certain commercial voyage, with or without letters assured to however it may warrant him in weighing anchor while waiting at a place in the course of the commercial voyage insured, may pledge the bill of lading, though he could not pledge the goods themselves. And our now determining that a factor cannot make such a pledge, will not break in at all upon the doctrine of Lickburrow v. Mason, that the indorsement of a bill of lading upon the sale of the goods will pass the property to a bona fide indorsee, the property being intended to pass by such indorsement. Rule discharged. LAWRENCE and Others against SYDEBOTHAM. THIS HIS was an action on a policy of insurance on the ship Tamer, with or without letters of marque, valued at 60007., and on slaves and goods as interest might appear, at and from Liverpool to the coast of Africa, during her of marque, giving leave to the stay and trade there; and at and from thence to her port or chace, capture, ports of sale, discharge, and final destination in the British and man prizes, and foreign West Indies and America, with leave to chace, capture, and man prizes." The plaintiff declared upon a loss by the perils of the seas; to which the general issue was pleaded. The cause was tried before Graham B. at the last Lancaster assizes; and the material question now was, Whether the policy were avoided by a deviation in the course of for the purpose the voyage? As to which it appeared in evidence that the enemy who had ship sailed from Liverpool upon the voyage insured, and arbefore anchored rived on the 14th of August, 1803, off the entrance of the place in sight Congo River, on the coast of Africa, where she found La of him, and was Bruave, a French trading vessel, with a brig and tender, and anchored within six miles distance of them. The next escape, will not morning the Tamer got under weigh, and came within three ter the capture, miles of the French vessel; which soon after stood out to sea, and was pursued for about 30 miles, and engaged and further prose captured by the Tamer, which carried 18 guns. After this voyage in short-he Tamer returned to the coast of Africa with her prize, ening sail and and finished her trading there, and proceeded, on the 15th of October, with her cargo and the prize in company, on her voyage to the West Indies; in the course of which she of chacing an at the same then endea vouring to warrant him af and in the course of the cution of the lying-to, in or der to let the prize keep up with him for the purpose of protecting her as a convoy into port, in order to have her condemned, though such port were within the voyage insured. leaked |