of the country, and other unavoidable accidents." The master received orders from the plt. to manage, as A and B had directed as to their goods in the same vessel. Held, the master's conformity to the directions of either A or B was sufficient to justify him. (Jan. 1813, the master went into Pernambuco, and there hearing of the war left about one third of his cargo to lighten his vessel and cause her to sail faster.) Cu. 21. Art. 3. Potter v. Lan 10. Goods were shipped for the account and risk of the 1 Johns. R. consignee, he paying the freight, and so expressed in the bill 215, 228, of lading and invoice. A delivery of the goods to the carrier is sing.—2 Phil. a delivery to the consignee, and he alone can sue the carrier Evid. 46. if not delivered. The bill of lading in such case vests the property in the consignee. See next article, also 1. Johns. R. 1 to 19, Ludlow v. Bowne & al. v. Potter. 11. When a master may leave goods and not be liable on 2 Johns. Ca. his bill of lading. As where he signed such bill to deliver 371, Mayell goods to A. B. at Norfolk from New York. A. B. was a transient person, and not resident at Norfolk, and when the master arrived there he inquired for A. B., and not finding him, delivered the goods to a merchant there for A. B. The master acted bonâ fide, and according to the usage. Held, he was not liable on the bill of lading to the consignor. So where goods were shipped at N. York, and consigned 1 to the master to be sold at Bourdeaux, the master could not find a purchaser, and left the goods there and returned to N. York; he acted bonâ fide. Held, he was not liable to the owner Johns. Ca. 174, Lawler v. Keaquick. 12. A bill of lading is not conclusive evidence of prop- 6 Cianch, erty; and though it express the property to be A's, it may be proved to be the property of another. land Ins. Co v. Ruden. 14 Mass. R. 40, 43, Schol field v. Bell. 13. Of stopping in transitu. Replevin for 2 hhds. of hard ware; plea, property in Wm. Hill, and denied it was in the plt. and issue. Scholfield & Co. in England, shipped these goods to Hill, in Portsmouth, in N. H. contrary to his orders 46. to them, and sent him a bill of lading; he refused to receive them; were attached by the deft. a deputy sheriff, for Wilby, as for Hill's debt; the agent of Scholfield & Co. caused them to be replevied. Judgment for the plt, Attached on the ground the property vested in Hill, when he received the bill of lading; and then it was too late, as said, for the consignor to stop them in transitu: held otherwise, for here not delivery ever took place, which could create a change of property. Phil. Ev. 14. The mere endorsement of a bill of lading, without a 15 Mass. R. delivery of it, does not transfer the property it contains; what 528, Buffinga sale of a vessel. This was replevin of the brig Sophronia, and her cargo, claimed by the plts. as being purchased by 2 Phil, Evid. VOL. I. 58 ton & al. v. Curtis. Cited 46. CH. 21. them of Jos. T. Wood, against the defts., deputy sheriffs, who Art. 4. attached them as his property. Judgment for the plts. for the brig, and costs for the defendants for the cargo and return &c., with damages 6 per cent. on double the value of it, as valued in the replevin bond. 1st. as to the vessel, because the bill of sale was made and delivered by Wood, to the collector, a third person, to the plts'. use, and by their previous assent, July 16, 1816; and the defts. attached 18th, though the plts. took possession the 19th: but this possession was in reasonable time. 2d. The endorsement of the bill of lading conveyed no property to the plts in the cargo, though endorsed by Wood before the attachment, because he made no delivery of it to any body till after it. Secus it seems, had it been left with the collector to the plts'. use, as the bill of sale of the vessel was; or had it been enclosed in a letter to the plts. 3 Wheat. R. and put into the post-office before the attachment. If a bill of lading consign goods to a neutral, not accompanied by an invoice or letter of advice, the bill is sufficient evidence for the admission of farther proof. 48. 3 East 585, Walley v. ry. ART. 4. Further English cases. 1. Consignor charters a ship for the consignee, and ships Montgome goods on his risk, &c.; property is immediately his, &c. Trover for a cargo of timber; and it appeared the consignor chartered the ship on account of the consignee, enclosed an invoice expressing the timber was on his account and risk; also a bill of lading in common for expressing the delivery to be made to order, &c. he paying freight according to charter-party. Consignor, also, drew bills on the consignee, at 3 months, for the value of the cargo. Held, the invoice and bill of lading sent to the consignee, and the delivery of the timber to the captain, vested the property in the consignee, subject only to be devested by the consignor's right to stop the goods in transitu, in case of the insolvency of the consignee. The bill of lading sent, was endorsed in blank, and was sent by the master; and as the timber in the voyage was at the risk of the consignee, his accepting the bills and paying freight at the end of it, could not be a condition precedent to the property's vesting in him, but otherwise, if not so at his risk. 4 East 211, 2. Trover for eighteen mats of flax, shipped in a general Coxe & al. v. ship, from Rotterdam to London. The consignors, Brown & Harden & al. Co. at Rotterdam, shipped the goods on account and at the 371-3 Bos. risk of the consignees, Oddy & Co. in England, in pursuance -See 6 East & P. 119. of orders, and took bills of lading from the captain to deliver to the consignor's own order; and sent one of such bills, not endorsed, with the invoice to the consignees, enclosed in a letter informing them they had drawn on them for the amount. The consignors also sent, by way of precaution, another bill of lading endorsed to their own agent, the plt. Held, that on the shipment on the account and risk of the consignees, the property vested in them; subject only to be devested by the consignor's stopping the goods, while in transitu. Consignees did not accept the bills, having become bankrupts a few days before the ship arrived; the flax was received by the defts. on an unendorsed bill of lading, paying the freight and duties, and sold it, and credited Oddy & Co., the consignees, on account of a debt they owed the defts. who were their assigns. If the consignors had a right to stop in transitu, they did not exercise that right; but the captain actually delivered the flax to the consignees order. And at any rate the plt. had no right to recover in trover on the endorsed bill of lading, because he paid no valuable consideration; and Lord Ellenborough said, "no decision of a court of law upon the subject of bills of lading, has gone further than to say, that the assignment of a bill of lading by the consignees, for a valuable consideration, and without notice by the party taking it, of a better title, passes the property in the goods thereby assigned." As the consignees became insolvent and had not paid for the flax, the consignors might have stopped it in transitu, if they had, by themselves or agent, exercised that right in season, and before the flax came into the possession of the assignees of the consignees. Сн. 21. Art. 4. Salomons v. 3. Where the consignee's assignee becomes his partner, 2 D. & E. 674. &c. Trover for 705 pigs of lead, value £1000. Ed. Nissen & al. Hague bought the lead of the defts. in Liverpool, March 1, 1787, and ordered them to ship it to Rouen in France. It was so shipped, March 10, 1787, by the defts. at Chester. The bill of lading was endorsed in blank by the defts. and sent to Hague. The plt. March 16, 1787, gave Hague his acceptances for £700, and he delivered the bill of lading to the plt. as security. Afterwards, Hague, the consignee and the plt. by agreement, became partners in the lead, and by their agreement it appeared the consignors, the defts. had not been paid for it. Held, they had a right to stop it in transitu, and hence the plaintiff could not recover, &c. Hague became insolvent. In this case the plt., assignee of the consignee, of a bill of lading endorsed blank, seems to have failed, because he, by his agreement, became a partner in the goods, with the consignee, and made himself paymaster; hence, put himself in the consignee's place, and became bound to take the bill of lading subject to the same rights. See Richardson v. Goss. 4. When transitus ends. Trover for files by plts. Moore 3D. & E. 464. ordered the goods from the plts., manufacturers at Sheffield, Hunt & al. Nov. 14, 1788; they sent them by Royle's wagon, directed assignees of to Moore, in England. The files were left in a cask at Stam- bankrupt. Ellis & al. v. Moore, a At said inn CH. 21. ford in the way to town; and put into Hunt's wagon, which Art. 4. brought the cask to the Castle and Falcon inn, in London, Nov. 22, 1788; the plts. drew a bill on Moore for part of the value of the files; this bill was never paid. the files were attached by a creditor of Moore. signees, the defts., went to the inn and put their mark on the files, but did not remove them, being so attached there. Held, the consignors could not afterwards stop them in transitu; because not then in transitu. Also held, in this case, that it is not necessary in order to devest the right of the consignor to stop in transitu, that the goods should have been taken by the very hands of the consignee himself. The files were viewed as having arrived at the end of their destined journey, when at the inn, and the consignees' assignees set a mark on them 4 days before the consignors, the plts., wrote a countermand of the delivery of them. So where goods came to a Hammond & wharfinger's hands sold for an entire sum, to be paid for al. assignees in a bill at 2 months; and orders to him to deliver to the vendee, who went to the wharf, weighed the whole, and took away part, and then became a bankrupt: held, this was possession of all, and the transitu at an end. See Slubey v. Heyward, art. 2; 6 East 614; 2 Esp. R. 613; 4 do. 85; 1 Camp. R. 109, 282, 482. New. R. 69. v. Anderson. 1 East 515, Inglis & al. assignees v. Usherwood. The consignor in Russia delivered goods on board a ship chartered by the consignee. Held, this is a delivery to him, and the transitus is at an end. But if the laws of the country or those of Russia, on the consignees' becoming insolvent, authorize the consignor to reclaim and retake the goods so shipped, by process, he may do it without process, by the master's consent. So the transitus is at an end, when the consignson v. Goss; ors send goods to the known agents of the consignees, and by their orders to be shipped abroad. According to a usual 2 H. Bl. 504. course of business, among the parties; as vendees in London See Richard also 5 East 175. Leeds v. Scott v. Pettitt. 9 East 506, Cuming v. sending orders to vendors in Manchester to send goods to vendees' correspondents at Hull, to be shipped to Hamburgh, as they had practised. Held, delivery to the correspondents was a delivery to the vendees; and put an end to the transitus. The correspondents were the general agents of the vendees in this business. Case decided on a similar principle, 3 Bos. & P. 320, &c. and 469. So if a vendee commonly uses A's store for his goods, delivery there is delivery to the vendee, and the transitus is at an end. § 5. One is a fair assignee of a bill of lading, though he Brown.-1 knows the consignor of the goods has only taken security for Johns. R. 18. payment for them-as where the endorsee of such bill for valuable consideration bonâ fide, knew at the time, the consignor had not received money for the goods sold, but had only taken the acceptances of the consignee, payable at a future day, not arrived. And 2d., after such assignment of the bill of lading, the consignor cannot stop in transitu, though the consignee become insolvent. 74. CH. 22. 5 Taun. R. 6. Held that a bill of lading is not a necessary instru- 5 Taun. R. ment of the transfer of property, in goods consigned to the owner; nor is one partner in the goods, who as an agent, is paid a proportion of the profits of the adventure. Also, the 558, Nathans property in a cargo for which the master has signed bills of v. Giles. lading, may be transferred by delivery without endorsing the bills. The transfer is good against all but after endorsees of the bills of lading for a valuable consideration. Haddon v. § 7. If the master be dead at the time of the trial, proof of his death, and of his signature, has been deemed sufficient 3 Taun. 302. evidence of the interests of the consignee. If living, proof of -2 Phil. Ev. his signature will be sufficient evidence of that interest, except as to shipping the goods. 47, 48. 46, 47.-Ab 6 East 41. 8. If the bill of lading be made for delivery of the 2 Phil. Evid. goods to the consignor or assigns, or to order or assigns, bott on Shipand be endorsed generally, not designating any person, the ping 392.holder of it has authority to dispose of the goods, and a bill so See Ch. 30, made, endorsed by the consignor to a third person by name, a. 7. gives him the same authority. In the first case the blank endorsement is an authority to the holder or bearer; in the second, to a particular person as to transferring property by bills of lading, &c. See Factor, Ch. 30, and Consignments, Ch. 25, and the case of the Venus, see Ch. 224, a. 9, s. 5; Ludlow v. Bowne & al. Ch. 40, a. 17, s. 22. CHAPTER XXII. ACTION OF ASSUMPSIT. BY-LAWS AND CORPORATIONS. See Debt on ART. 1. A bye-law, or by-law, is a private law made by a corporation constituted by a statute or charter, custom or prescription, for the orderly government of their members and affairs, within some particular place, as a township, bounded parish, &c. or not confined to such place, as a poll-parish, or of tenants in common, or of a bank, &c. the proprietors in which are limited to no place. The word by-law is of uncer- -1 Burr. 130. tain derivation. Every by-law must be consistent with the 3 Burr. 1837. |