CH. 21. Art. 1. § 66. What payment of a due bill to the payee, bars the holders action. A gave one to B in N. York, thus: "due to B $170, value received." On it B endorsed his name, and delivered it to C; C, at Albany, demanded payment of it of 9 Johns. R. A; A said next week he would settle it in N. York; after- 64, 65, Meghan v. Mills. wards, A paid it to B in N. York, and took a receipt in full, the due bill being still in his hands, C sued A in B's name on it. Held, there was not due notice of an assignment of the note, to charge A, with a fraudulent payment to B; and that C, the holder of the note, when he demanded payment of it, ought to have shown it, with the endorsement, to A, or explicitly stated that it had been assigned by B to C. Judgment for A. This was not a negotiable note; had it been one, the endorsement of B's name had been sufficient to pass the property. CHAPTER XXI. ACTION OF ASSUMPSIT. BILLS OF LADING. ART. 1. General principles. a Lickbarrow 2 Phil. Evid. § 1. It is settled in this case, after much discussion, that 5 T. R. 683, bill of lading is transferrable and negotiable by the custom of & al. v. Ma merchants, and in this case the jury specially found, and which son & al. A. seems to be the law of the land, "that by the custom of mer- D. 1794. See chants bills of lading, expressing goods or merchandise to 46, Custom have been shipped by any person or persons, to be delivered of Merchants. to order or assigns, have been, and are, at any time after said goods have been shipped, and before the voyage is performed, for which they have been or are shipped, negotiable and transferrable by the shipper or shippers of such goods to any other person or persons, by such shipper or shippers, endorsing such bills of lading with his, her, or their name or names, and delivering or transmitting the same so endorsed. or causing the same to be so delivered or transmitted to such other person or persons; and that by such endorsement and delivery or transmission, the property in such goods hath been, and is transferred and passed to such other person or persons, and that by the custom of merchants, endorsements of bills of lading in blank, that is to say, by the shipper or shippers, with their names only, have been, and are and may be filled up by the person or persons to whom they are delivered, or transmitted CH. 21. 1 H. Bl. 357, 368, A. D. 1790, Mason & al. v. Lickbarrow & al. in error. 2 T. R. 63, Lickborrow & al. v. Mason & al., A. D. 1787. 5 D. & E 683. as aforesaid, with words ordering the delivery of the goods or contents of such bills of lading, to be made to such person or persons, and according to the practice of merchants the same when filled up have the same operation and effect, as if the same had been made or done by such shipper or shippers, when he, she, or they endorsed the same bills of lading with their names as aforesaid." Two principles being thus established. 1. That a bill of lading is negotiable. 2. That the legal holder may fill up a blank endorsement, he may any time after the goods specified in it, and before the voyage is performed, transfer the property of them to himself by filling such blank, or to another by a further delivery or transmission of this bill of lading. § 2. In this case in the Exchequer, in error, it was held, that "where the consignee of goods becomes insolvent, the consignor may stop them in transitu, before the consignee gains possession. In such case also the consignor may stop the goods in transitu, though the consignee assign the bills of lading to a third person for a valuable consideration. The right of the consignor not being devested by the assignment." 3. In this great contested case in the Court of Kings Bench there had been a judgment as to the first branch above, as in the Exchequer. But otherwise, as to the second branch, that is, as to this the court of King's Bench decided, "if the -6 D. & E. consignee assign the bills of lading to a third person for a valuable consideration, the right of the consignor, as against such consignee, is devested." And further, that" there is no distinction between a bill of lading, endorsed in blank, and an endorsement to a particular person," and afterward the judgment of this court of King's Bench was confirmed in the House of Lords. 20. A. D. 1794. 1 W. Bl. 628. A. D. 1767, 4 Burr. 2046. -Lex M. Am. 164. 4. In this case Fontaine, June 1766, shipped goods, value £400, from London to Liverpool, to be delivered to order or assigns and took bills of lading, and endorsed one to Swanwicke at Liverpool or order, this he endorsed to Scott, (pretending the goods were his own) as security for a debt of £800 he owed Scott &c. The goods had been consigned to Swanwicke as a factor only. The other bill of lading, a duplicate, had been endorsed to the deft, who on the arrival of 7 D. & E. 745. the ship got possession, having given the master security. Scott became a bankrupt. Verdict for the plt. New trial 364.-Abbot was granted. Lord Mansfield held, first, it is clear, "that if 314-Cowp. there is an authority ever so general by endorsement upon a bill of lading, without declaring that the endorsee is factor, the owner (as between him and the factor) retains a lien till delivery of the goods, and before they are actually sold and turned into money." -1 H. Bl. 296. Second, that "if the factor pays over with notice to a third person, then it may be followed in the hands of such third person. But third, "if the goods be bonâ fide sold by the factor at sea, as they may be where no other delivery can be given, it would be good," and the vendee will hold them, though no actual possession is delivered, and the owner can never dispute with the vendee; "because the goods were sold bona fide, and by the owner's own authority." But the court thought this was not a fair transaction between Swanwicke & Scott, so a new trial was granted on this ground. CH. 21. Art. 2. 176,-4 Burr. Buller J. 5. A bill of lading is an acknowledgment under the hand 2 Mor. Ess. of the captain of the vessel, that he has received such goods, 2046.-1 T. which he promises to deliver to the person named in the bill. R. 216, per It is assignable in its nature, and by endorsement the property 1 H. Bl. 359. is vested in the assignee, and goods at sea may be so assigned. -1 D. & E. A bill to deliver to the agent of the shippers is to the shipper 745-1 Bos. himself, and goods are subject to his order, but the agent must be known to be such. & P. 564. 2 H. Bl. 504, ART. 2. English cases. See above. And also in this case Sleubey v. 165. See A at a foreign port, shipped goods to B, by the order, and on Heyward account of B, to be paid for at a future day, and the master Lex. M. Am. of the ship signed bills of lading accordingly. One of the bills Consignwas immediately sent to B, who, before the arrival of the ship, ments, Ch. sold the goods to C, and endorsed the bill of lading to him. 25. After the arrival of the ship, and a delivery was made of a part of the goods to C's agent; B became a bankrupt, not having paid to A the price of the goods. The court held, that by this delivery of a part of the goods, the transitu was at an end in respect to all the goods. Here then was an actual delivery of a part, art. 4, s. 4. wax. He was a stranger to the Invoice £750; for this Fritdated August 4, 1801, one signees of 2. June 1801, Brown, the bankrupt in London, gave an 3 East 92, order on Fritzing of Hamburgh to ship him a quantity of bees- Fiese & al. asThis he procured and shipped in a general ship on the Brown, v. account and risk of Brown, addressed to him; and the bill of Wray. lading was filled up to his order. persons who sold the beeswax. zing drew three bills on Brown, £210, one £260, and one £280 payable to F's order at two usances, and informed Brown the same were drawn for the price of the wax, to be credited to him when the bills should be negotiated. Brown accepted them, and they were proved under his commission. August 10, 1801, he received the invoice and bills of lading, and September 2 committed an act of bankruptcy. September 3, Fritzing by his agent called at Brown's counting-house for security, and his brother delivered up to the deft., as such agent of Fritzing, the invoice and CH. 21. 7 T. R. 440, Hodgson v. Loy. 3 East 381, Bohtlingk & al. v. Inglis & 613. This bill of lading, Sept. 11, said ship arrived at London, said case 3. In this case it was decided, that part payment for the goods does not destroy the vendor's right to stop them in transitu it can only reduce his equitable lien, pro tanto when he gets the goods into his possession. 4. In this case Crane in England, Sept. 1798, chartered a ship on certain conditions, for a voyage to Russia to bring al. assignees goods from his correspondents there to England; the plt. of Crane, a shipped 100 casks of tallow on Crane's account and risk, and bankrupt. A. D. 1803 sent to him the invoice and bill of lading. Held, the delivery 1 Esp. R. 240. of the goods on board of such a chartered ship did not pre-2 Esp. R. clude the consignor's right to stop the goods in transitu on board the same to the vendee, in case of his insolvency in the mean time, before actual delivery; any more than if they had been delivered on board of a general ship for the same purpose. And as the consignor's agent demanded the tallow of the master before unloaded, and he afterwards delivered it to Crane the vendee's assignees, they were liable in trover to the consignor. And the court held, as to that, the delivery to the master of this chartered ship was no more than a delivery to a carrier, which was clearly no actual delivery to the consignee. But otherwise, if he have the entire controul of the ship, as where he absolutely chartered the ship for three years, in a certain case cited. See 6 East 17, and post art. Fowler v. 1 East 522. 4, s. 4. See Consignment Ch. 25, Ellis v. Hunt, and several CH. 21. other cases. Art. 2. al. v. Ball. -Lex. Am. 3 Cain. 182. In error, 1, 19. § 5. In this action it was adjudged, that where several bills of lading have been signed of different imports, no reference 1 T. R. 205, is to be had to the time when signed by the master. But Caldwell & the person who first gets one of them by legal title from the Same case in owner or shipper has a right to the consignment; also when 2 Mor. Ess. such bill of lading are constructively the same, though differ- 159, 179, 271. ent on the face of them, and the master acts bona fide, a Mer. 163.— delivery according to such legal title will discharge him from 2 Cain. 38.all of them. And where one ships goods and the bills of lading are to his own order, he has the absolute controul over them, and may unship them &c. until he endorses the bill of lading. § 6. If a bill of lading be not endorsed, the master can only deliver the goods to the consignee as factor, not as owner; for till endorsed the consignor has full power over this bill, and nothing but his endorsement can vest the property of the goods specified in it in any other person. The transfer of the bill is solely by endorsement. The endorsement of a bill of lading prima facie, transfers the whole property, but this endorsement may be controlled by the evident intent of the parties. § 7. In Mills v. Ball it was held, the vendor might stop the 2 Bos. & Pul. goods even after they were delivered to a wharfinger, who re- 457, Mills v. ceived them and paid the freight, and charged on account of 389-3 T. R. the vendee, for as Lord Mansfield said in another case, the 466.-7 T. R. vendor or consignor may do this till the goods actually come into the hands of the vendee or consignee, to his corporal touch. Consignee or vendee becoming a bankrupt declined the goods. 8. Where the master is supercargo, bills of lading are unnecessary, for then he is not so accountable to others as to make such instrument necessary, and it is required that this bill should declare on whose account and risk the shipment is made. See Insolvency, Ch. 39, a. 1, Reader v. Knatchbrill, and other cases. Ball.-3 East 444. Am. Lex. Mer. 119. 1 Rol. Ad. R. 27. Beal.-Lex. § 9. Cloth was purchased by the vendee, but not paid for. 3 T. R. 466, It was sent to an innkeeper on account of a trader with a bill Hunter v. of parcels, the receipt of which he acknowledged and credited Am. Mer. 165. in his books the amount to the vendor. The vendee ordered it to a wharf to be shipped where it arrived too late, and was taken back to the inn with directions to the innkeeper from the vendee to take care of it till another opportunity offered. The court held, this cloth still remained in transitu, and there was no actual delivery to the vendee. den.-Lex. 10. If the assignee of a bill of lading take it, knowing an- Dick v. Lamsother has an equitable lien on the goods, he takes it subject to Am. Mer. |