Domville v. Kevan.

Held also, That the replication was bad, as the agreement of the defendant to abide by what R. did, was without consideration, and not binding; and it did not allege that C. was the agent of D. That the rejoinder was bad, in stating that the plaintiff produced no "proper authority" from D. to receive the goods, which was a question of law; also, because it both traversed, and confessed and avoided the allegations in the replication.

Fourth plea, Alleging the shipment of the goods at London by D., to be carried to St. John, according to the terms of a bill of lading (as in the 2nd plea); that freight was due on the goods, and that defendant detained them for non-payment of the freight. Replication, That the plaintiff tendered to the defendant all money due for freight, according to the bill of lading, and that he refused to receive it, and to deliver the goods to the plaintiff. Rejoinder, That the plaintiff had no authority to receive the goods, or to make a tender of the freight; wherefore the defendant refused to accept the tender or to deliver the goods to the plaintiff. Held, That the rejoinder was bad, as being a departure from the plea.

Demurrer. This was an action of replevin. The declaration contained two counts : 1st, that the defendant, on the 1st June, 1868, at a certain place called the harbor of St. John, took the goods and chattels, to-wit: 278 tons 7 cwt. of puddle bar iron of the plaintiff, of great value, etc., and unjustly detained the same against sureties and pledges, until, etc. 2nd count, that the defendant on the day and year aforesaid, at a place called the Custom House Wharf in the City of St. John, took other goods, etc., to-wit: 278 tons 73 cwt. of puddle bar iron of the plaintiff, of great value, etc., and unjustly detained the same against sureties and pledges. The substance of the pleas, replications, and rejoinders, is set forth in the following schedule:

Domville v. Kevan.

The plaintiff demurred to the second, third, and fourth pleas, and to the rejoinders to the replications to the second, third, and fourth pleas.

A. L. Palmer, Q. C., for the plaintiff. The second plea is bad; because, while it admits the property in the goods to be in the plaintiff, it does not show that plaintiff assented to their being shipped by Claveau & Co. on board the Choice. Where a party admits that he has possession of the property of another, he must by his plea show all the facts necessary to justify the detention, which defendant has not done here; and if there is a state of facts consistent with his plea that would not justify his detention, the plea fails. The plea assumes that unless the bill of lading is indorsed to plaintiff, the defendant has no right to deliver the goods to him; but we contend that Claveau & Co. could authorize the plaintiff to receive the goods without any indorsement whatever. The third plea is similar to the second, and open to the same objections. The fourth plea, which is similar to the others as regards the shipment of the goods, with the addition that the goods were detained by defendant for non-payment of freight, would be a good plea were it shown that Claveau & Co. were the owners of the goods, or that the plaintiff assented to their shipment; but this is not shown. The replications to the second and third pleas are substantially the same, and set out a state of facts that is an answer to the defendant's pleas; that the bills of lading were sent to the defendant by Claveau & Co., but not indorsed; that Collins, their agent in St. John, indorsed the bills of lading, and the freight was tendered, but defendant refused to deliver the goods. Even if the property in the goods had been in Claveau & Co., that replication would be a good answer, for they might waive their right to have the indorsement of Claveau & Co. The replication to the fourth plea is, that the freight was tendered, which is tantamount to payment.

The defendant's rejoinders to the replications to the second and third pleas are bad. Instead of traversing the replications, they state that the plaintiff produced no proper authority to receive the goods. This pleading is a mixture of law and fact. They must show what is meant by proper authority. At the end they state that they required a bill of lading indorsed by Claveau & Co. Suppose a bill of lading to be lost; according to that, the plaintiff must produce it under all circumstances. There is no such obligation cast on us. The rejoinder to the fourth plea is substantially the same, that plaintiff had no authority to receive the goods; that is a departure, and the pleading is therefore bad. 2 Wms. Saund. 84 n. (11). The statement that we had no sufficient authority from Claveau &

Domville v. Kevan.

Co. is no traverse. They must either deny that we had any authority, or if they wish to raise the question of law, they must show exactly what the authority is. 1 Chitty Pl. 540.

The party who drew these pleas evidently assumed that a bill of lading was the same in regard to assignment as a promissory note. But they are different. A man who has an assignment of a bill of lading, cannot sue on it like a promissory note. (Thomson v. Chubley, 1 M. & W. 212). Nor is it similar to a bill of exchange. Key v. Cotesworth (7 Exch. 595). It does not follow because a man has a bill of lading of goods indorsed to him, that they belong to him. In England, by Act of Parliament, the effect of indorsement of a bill of lading is made similar to the indorsement of a promissory note, but it is not so here.

Duff, Q. C., contra. The objections to the second, third, and fourth pleas are of the same nature. They are comprised under heads numbered nine and ten of the grounds of demurrer to the rejoinders to the replications to the second and third pleas, and under numbers two and five of the grounds of demurrer to the rejoinder to the fourth plea.

Substantially the objection is that the pleas do not show any authority on the part of Ducasse, Claveau & Co. to ship the plaintiff's goods, and to take a bill of lading making them deliverable to their own order. Our Act of Assembly, which authorizes replevin to be brought for the wrongful detainer of goods, as well as for the wrongful taking, would seem to require a corresponding alteration in the form of the declaration. By adopting the old form of declaration, the defendant is placed in a somewhat anomalous position with regard to his pleas. The gist of the action, as laid in the declaration, is the wrongful taking; the real cause of action, if any, may be the wrongful detainer. And in the latter event, it is substituted for the old action of trover, where the plaintiff must have not only a right of property, but the right of possession also; the wrongful conversion, and not the taking of the goods, being the foundation of the action. In that form of action, too, the plea of not guilty would put in issue the fact of the conversion. But however ill adapted the old form of declaration may be to the law as it now stands, it is good on the face of it, and could not be demurred to. And there being no general issue which could be pleaded in replevin, it became necessary for the defendant to put upon the record the facts, to show that the detainer of the goods was lawful. In the second, third, and fourth pleas he has done so. The second plea avers that the defendant was master of the ship Choice; that Ducasse, Claveau & Co. shipped the goods in question on board of

Domville . Kevan.

her at London; that on the occasion of such shipment he, as such master, signed bills of lading whereby he undertook to deliver the goods to their order at St. John; that no bill of lading, indorsed by Ducasse, Claveau & Co., was ever produced or shown by the plaintiff; wherefore the defendant detained the goods, as he lawfully might. Would these facts, if proved, not be an answer to a complaint for a wrongful conversion of the property by the defendant, and are they not pleaded with sufficient certainty on general demurrer? Of course no objection can be taken to the form of the plea on general demurrer; its language must receive fair and liberal construction. In Pilgrim v. the Southampton and Dorchester Railway Company (7 C. B. 226), Lord Truro says: "The plea comes before us on general demurrer. It must therefore receive a fair and liberal construction." It will be construed in the same manner as if on a motion for judgment, non obstante veredicto. (Goldham v. Edwards 16 C. B. 437; 17 C. B. 141). So construing this plea, the facts are set forth with sufficient certainty; and they show that there was not a wrongful conversion by the defendant. It is not the ownership of the property, but the right to the possession of it which is denied. The defendant alleges that Ducasse, Claveau & Co. shipped the goods. And if they did so, it was the duty of the master to sign the bills of lading making the goods deliverable to their order, if required to do so, ex vi termini; this is imported by the word shipped. The bills of lading must be made out according to the directions of the shipper of the goods, or the holder of the receipt given on the shipment, who is in general the person entitled to the bills of lading, and which ought to be given only to him. He has a right to name the consignee to be mentioned in the bill of lading, as it is presumed that the goods have been shipped on account of the shipper, though it is not expressed so in the receipt. If the master were to sign a bill of lading making the goods deliverable to some other person, and so deliver them, he would be answerable to the shipper. Chitty on Carriers, 247, 268, 269; Craven v. Ryder, 433; Abbott on Shipping (Ed. 1867) 279; Turner and others v. The Trustees of the Liverpool Docks, 6 Exch. 543; Brandt v. Bowlby, 2 B. & Ad..982. "If a bill of lading be made to order of assignees, the indorsement of the shipper is necessary to give it negotiability." Nix v. Olive, cited Har. Dig. 6214; Abbott on Shipping, 439. "It is the master's duty in such cases to retain, and he cannot safely deliver the goods until they are claimed of him by the holder of the bill of lading, indorsed by the shipper to whose order he engaged to deliver them." Abbott on Shipping (Ed. 1867) 289. The term "shipped" imports an authority to ship, and implies a right on the part of the shipper to take the bills of lading in his own name. And prima facie at least,