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of lading endorsed to their own agent, the plt. Held, that on 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.

Ed.

Cн. 21.

Art. 4.

2D. & E. 674.

Salomons v.

Nissen & al.

$3. Where the consignee's assignee becomes his partner, &c. Trover for 705 pigs of lead, value £1000. 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- Moore, a

Ellis & al. v.

bankrupt,

At said inn Moore's asmark on the

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 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 venv. Anderson. dee, 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.

1 East 515, Inglis & al. assignees v. Usherwood.

See Richard

son v. Goss; also

5 East 175

2 H. Bl. 504.

Leeds v.
Wright,

Scott v. Pet-
titt.

9 East 506, Cuming v. Brown.-1

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 consignors send goods to the known agents of the consignees, and by their orders to be shipped abroad. According to a usual course of business, among the parties; as vendees in London. 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 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.

CH. 22.
Art. 1.

74.

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 is 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.
Parry.

2 Phil. Ev.

7. If the master be dead at the time o the trial, proof of his death, and of his signature, has been leemed sufficient 3 Taun. 302. evidence of the interests of the consignee. If living, proof of his signature will be sufficient evidence of that interest, except as to shipping the goods.

47, 48.

2

46, 47.-Ab

6 East 41.

8. If the bill of lading be made fo delivery of the Phil. Evid. goods to the consignor or assigns, or to order or assigns, bott on Shipand be endorsed generally, not designatin; any person, the ping 392.— holder of it has authority to dispose of the joods, 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 firstcase the blank endorsement is an authority to the holder r bearer; in the second, to a particular person as to transerring property by bills of lading, &c. See Factor, Ch. 30, ind 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
Ch. 143.

By-laws &c.,

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.

CH. 22.
Art. 1.

public law of the land. Where the power to make by-laws is vested in the body at large, they may delegate it to a select body-per Lord Mansfield. This position certainly has many 3 Burr. 1827, exceptions. No by-law can exclude an integral part of the Rex v. Spen- electors, or narrow the description of the eligible persons, or add E. 189, New- a qualification not required by the charter or statute. 4 Burr. ling v. Fran- 2204; 4 Inst. 48, 49. Where the manner of electing offi

ser.-3 D. &

cis.

1 Esp. 7, cites 2 Lev. 252, Sargeons'

London v.

cers is not pointed out in the charter &c., the corporation may from time to ime make by-laws to regulate their elections. By-laws are usually enforced by actions of debt and assumpsit. Hence, the numerous questions respecting them mostly arise in these actions. See more of by-laws, Debt, Ch. 143. § 2. If "a person becomes a member of any society or company &c., he thereby agrees to abide by all legal claims Company of arising against hin from the by-laws, or local regulations of that society to which le belongs. Therefore, indebitatus assumpsit was held to lie against the deft. for £20, being a penalty forfeited by the by-law of the company, for not serving the office of steward in pursuance of such by-law." This action was upon the principle, that when the deft. became a member of this company, he mpliedly engaged to obey its by-laws, and promised tacitly to pay such sums as he thereby should forfeit. Where amember must aver his title to his shares, 6 D. & E. 67.

PelsonClift. 901, 902.

12 Mod. 269,

686, Latham

. Barber.

Latch. 402.

3. As every bwn and corporation in the United States must necessarily have its rules and regulations, or in other words, its by-laws for governing its affairs, and its members, in all those minor special concerns to which the statutes and general laws of the land cannot well extend; these by-laws must be very numerous, and at first view it may naturally appear that the actions grounded on them must be very numerous, but experience is otherwise. It is but seldom in practice we find an action recessary to enforce a by-law. They commonly concern smal matters, are simple and plain, and generally understood by all.

4. But questions whether this or that corporation has power to make this or that by-law, or whether, when made it is good or not, often arise in some shape or form; the discussion of which in detail I shall not enter into in this place.. I shall here only state the grounds on which corporations have this power, and a few principles on which by-laws are generally allowed. A true principle is laid down by the Supreme Court of the United States, to wit: a corporation which has only a legal existence can act only in the manner prescribed by its act of incorporation, from which it derives all its power. This is to them an enabling act. It alone enables the body politic to act and contract, and it must observe the mode of

contracting named in the statute. 2 Cranch 127 to 170, Head & al. v. Providence Insurance Company; 2 Johns. R. 109, 115, Beatty v. Marine Insurance Company.

§ 5. How far Congress has power to create a corporation or body politic, is a question that was much discussed in the case of the Bank of the United States, incorporated in 1791. The better opinion certainly was, that the Federal legislature had this power.

§ 6. There never has been a doubt, but that each state legislature in the Union has power to make corporations of almost any description, civil or religous. And so it is universally admitted the Federal legislature may, in places in which it has exclusive legislation, as in the District of Columbia and other places.

CH. 21.

Art. 1.

1786, sect. 7,

Laws Revis

ede

7. By this act towns in Massachusetts are empowered to Mass. Act, make "by-laws for directing, managing, and ordering their March 23, prudential affairs as they shall judge most conducive to the the Colony peace, welfare, and good order thereof; and to annex penal- and Province ties for the observance of the same not exceeding $5 for each offence, to enure to such uses as they shall therein direct, provided they be not repugnant to the general laws of the government; provided also, that such orders and by-laws shall have the approbation of the court of General Sessions of the peace of the same county." Other corporations very numerous, and of different kinds, have powers by statute law, usually in their respective acts of corporation, to make bylaws under restrictions similar in principle to those above expressed. This power to make by-laws in towns cannot be delegated.

8 We have not in the United States, strictly speaking, corporations by prescription. Almost universally the original of each corporation is a matter of record; however, though the country is young, yet it is old enough for prescription. Rights and corporations may have existed beyond the memories of the oldest persons, or further back than any records on the subject are to be found.

9. In this case it was decided, that after forty years a 5 Mass. R. corporation may be proved without shewing an act of incor- 547, 563, in Dillingham poration. In this case the Secretary of the Commonwealth v. Snow & al. certified, that no act of incorporation could be found of the North Parish in Harwich. The defts. were permitted to prove a parish by reputation, it having existed above forty years. 10 Johns. R. 389. Though a turnpike corporation pledge the income of a toll-gate, it retains the possession, and if cut down, has trespass, and though a penalty be given for the injury also.

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