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Bills of

Jading.

indorsement (i). But the property does not pass to enable the indorsee to maintain trover, if no consideration has been given (k); or if the indorsee had notice of a prior claim (7); or of circumstances which render the instrument not fairly and honestly assignable (m), as, where the indorsement was made by one partner in a firm without authority, the indorsee being privy to the misapplication (n). So, the indorsement does not pass the property, where the bill of lading was signed and given before the cargo was put on board (o); or, where the indorsement was not made until after an unqualified delivery on board the vessel in favour of a third party (p); or, where it appears on the face of the bill of lading or the invoice, that the party indorsing was not entitled to the goods as owner, but had only received instructions to sell them as agent on the account of another (q). So it is, if the bill

(i) Morison v. Gray, 9 B. Moore, 484; S. C. 2 Bingh. 260. Supra, p. 188-209.

(k) Waring v. Cox, 1 Campb. 369; Tucker v. Humphery, 4 Bingh. 522; Fearon v. Bowers, 1 H. Bl. 364, n.

(1) Dick v. Lumsden, Peake, 189; Salomons v. Nissen, 2 T. R. 674; Wright v. Campbell, 4 Burr. 2051.

(m) See 9 East, 516; Holliday v. Mann, 2 C. & P. 509. See above, p. 196.

(n) Smaith v. Burridge, 4 Taunt. 684.

(0) Osey v. Gardner, Holt, N. P. C. 405.

(p) Ogle v. Atkinson, 5 Taunt. 759. See per Gibbs, C. J., Nathan v. Giles, 5 Taunt. 575; Thompson v. Trail, 2 C. & P. 334; S. C. 6 B. & C. 36.

(q) Selleck v. Smith, 3 Bingh. 603.

lading.

of lading was specially indorsed on certain con- Bills of ditions, which conditions are not complied with (r). For, although, primâ facie, by shipping the goods on behalf of the consignee, and indorsing the bill of lading, the property is transferred absolutely, yet this is subject to be controlled by the special agreement or the evident understanding between the parties (s).

It seems that, after the consignment has been once made in favour of any party, nothing except the insolvency of the consignee can give the consignor a right of countermanding the goods. Thus, where the bill of lading expressed that the cargo was consigned to J. S., and on his account and risk, and the consignor, being apprehensive, from the refusal of the agent to accept the drafts on behalf of J. S., that the insolvency of the latter was probable, afterwards procured a countermand

(r) See Barrow v. Coles, 3 Campb. 92. The case even goes further. The bill of lading had a special indorsement by the consignor, that the cargo was to be remitted to J. S. in case he accepted and paid the bill drawn for the price, otherwise to the holder of the draft. The cargo was accordingly remitted to J. S., who accepted the bill but failed to make payment when due it was held, that the holder of the draft might maintain trover against the party to whom J. S. had indorsed the bill of lading for a valuable consideration. A fortiori, therefore, trover would have been maintainable against J. S.; and the case places his bona fide indorsee in the same situation': for under the circumstances he ought to have made inquiry whether the condition had been performed.

(s) Hibbert v. Carter, 1 T. R. 745. See Brandt v. Bowlby, 2 B. & Ad. 932.

Bills of

lading.

Trover not

maintain

of the original consignment, and an order to the master to deliver the cargo to a different person, to be indorsed on the bill of lading,-it was held, that he was not justified in so countermanding the consignment, and that the original consignee, therefore, was entitled to the cargo (t). So, where, at the time that the consignment was made and the invoice and bill of lading were sent to the plaintiff, the consignor drew bills on the consignee nearly to the value of the cargo, and the consignee refused to accept the drafts (a large balance being due to the latter at the time), it was held that this did not amount to an implied refusal of the consignment (u).

Trover is not maintainable by the purchaser if able when anything remain to be done between him and the seller to ascertain the price, quantity, or individuality of the goods, before the commodity pur

something remains to

be done.

"The

(t) In re the CONSTANTIA, Henricksen, 6 Rob. Adm. 321. See the luminous judgment of Sir William Scott. "It is not an unlimited power that is vested in the consignor to vary the consignment at his pleasure in all cases whatever; but it is a privilege allowed to the seller for the particular purpose of protecting him against the insolvency of the consignee;" id. 326. alteration may be made provisionally, without actual insolvency; but if the insolvency does not take place, the act which has been done is a mere nullity, and the seller has exercised a power to which the law does not ascribe any legal effect;" id. 330. And see the cases cited from Emerigon, id. 328, 329. Walley v. Montgomery, 3 East, 585.

(u) Anderson v. Clark, 2 Bingh. 20.

tainable.

chased is to be delivered (r). Thus, where a When mainchattel is made to order, the property does not pass until completion and delivery; therefore, trover by the vendee cannot be supported (y). But if payment has been made for the chattel ordered, and the purchaser has been allowed to exercise acts of ownership after it has been finished, the property will be transferred so as to enable him to bring trover (z). And where the chattel made to order was to be paid for by instalments during the progress of the work, it was held that such payments specifically appropriated in the purchaser the parts respectively for which the successive payments were made (a).

So, the action cannot be maintained where the quantity is yet to be fixed by measuring or weighing (b), or where anything is yet to be done which can affect the quantity which has been agreed to be delivered to the purchaser (c). It is immaterial

(x) Selw. N. P. 1300; 2 Wms'. Saund. Rep. 477.

(y) Mucklow v. Mangles, 1 Taunt. 318. See 8 B. & C. 277 ; 10 Bingh. 99.-Supra.

(z) Carruthers v. Payne, 5 Bingh. 270; S. C. 2 M. & Payne,

429.

(a) Woods v. Russel, 5 B. & A. 942, 946. See 8 B. & C. 282. (b) White v. Wilks, 5 Taunt. 176; Shepley v. Davis, 5 Taunt. 617; S. C. 1 Marsh. 252; Hanson v. Meyer, 6 East, 614; Austen v. Craven, 4 Taunt. 644; Busk v. Davis, 2 M. & S. 397; Withers v. Lys, Holt, N. P. C. 18; S. C. 4 Campb. 237.

(c) Wallace v. Breeds, 13 East, 522; Rugg v. Minett, 11 East,

tainable.

When main- whether what remains to be done is to be done by the vendor himself, or by some third party, such as a wharfinger or other bailee in whose custody the goods are deposited, provided the vendor continues to be still in fact interested (d), because in such case the bailee is the mere agent of the vendor, and his act is the act of the principal. But if everything is in effect done as between the buyer and seller, though something remain to be done between the buyer and a third party, in which the seller is not interested, the property passes sufficiently to support trover;-thus, where the seller, having ten tons of oil (the quantity being admitted) in the warehouse of J. S., gave the plaintiff an order to receive that quantity from J. S., it was held that the property in the oil passed to the plaintiff, although the ten tons had still to be separated from the bulk of the property of J. S.(e). Again, where the vendor gave the plaintiff an order on a wharfinger for the delivery of twenty sacks of flour, which order when presented to the wharfinger was accepted generally, and five sacks

(d) Hanson v. Meyer, 6 East, 614; Busk v. Davis, 2 M. & S.

397.

(e) Whitehouse v. Frost, 12 East, 614. The decision itself, indeed, has been doubted (4 Taunt. 646; 5 Taunt. 179), because ́ it went to put a sub-vendee in a better plight than the original purchaser; which is unreasonable, and cannot be supported, (Austen v. Craven, 4 Taunt. 644): but perhaps, to the extent laid down in the text, the authority is not overruled. See per Lord Ellenborough, C. J., 13 East, 525.

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