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by the Court as identified in interest with Schumann and Co. Lord Ellenborough, at the trial, looking at the correspondence and the bill of lading only, thought Schumann and Co. had appropriated the goods to be Walley's if he accepted the bills and payed the freight, and not till then. He had offered to accept the bills, so that the first condition was fulfilled; but he had not offered to pay the freight, and therefore he was nonsuited. The King's Bench granted a new trial. Lord Ellenborough said that he should have retained his opinion had it not been for the invoice, to which his attention had not been called at the trial; he thought that shewed that the appropriation was absolute. Grose, J. said, "The defendant was the mere "agent of Schumann and Co., out of whom the pro"perty was divested by the bill of lading and invoice, "and the delivery to the captain for every purpose "except that of stopping in transitu. * * * * "No man can make another his debtor against his "will * * * there was no duty in the plaintiff "to pay the defendant the freight, because he was a "tort feasor: standing as Schumann and Co. he was "detaining the goods from the plaintiff after having "passed the property to him."
The other case was Coxe v. Harden (a), also in * 1803. In that case, Browne and Co. of Rotterdam, had an order from Oddy and Co. of London for flas. The terms of the order are not given in the report, nor the manner in which the first part of it was per
(a) Coxe v. Harden, 4 East, 211.
formed. On the 12th of February, 1802, Browne and Co. wrote to Oddy and Co. as follows: "We have the pleasure of handing to you a bill of lading, and invoice of the remainder of the flax we purchased for your account, by order of Mr. Oddy, consisting of eighteen mats, which are shipped in Vrow Jeannette for your place, the amount being 317/. 0s. 10d., We have this day drawn on you at two usances in favour of Lacon, Fisher and Co., not doubting it will meet due honor."
The bill of lading was unindorsed, Oddy and Co. being in difficulties conveyed the goods to Harden the defendant, who, as the bill was unindorsed, stood in exactly the position of Oddy and Co. Then Oddy and Co. failed, and Browne and Co. having transmitted an indorsed bill of lading to Coxe, he brought trover against Harden, who had received the goods. The Court of King's Bench thought Coxe could not sue in his own name, but they said it was not necessary to decide that, for Browne and Co. could not have sued in their own name. As Harden had actually received the goods, no question on stoppage in transitu arose, and the question in the case was, whether the right of property and possession in the goods, had passed from Browne and Co. to Oddy and Co. or not. Neither the terms of the order nor of the invoice are given in the report, but in argument it is asserted, "that the property was vested in them without any words of condition annexed, scilicet if they honored the bill," and each of the judges assumes in his judgment as a starting point, that it was clear that Oddy and Co., if they continued solvent, were to have immediate possession. It seems, therefore, not too much to infer, that the original agreement was one by which the vendors were not to retain a right of possession till the bills were honored; and, consequently, that the directions to the captain not to deliver to Oddy and Co., signified by the bill of lading being unindorsed, were no part of the bargain, and not such as (if Oddy and Co. had continued solvent,) could have been enforced against them.
In the case of the Constantia (a), Lord Stowell pointed out the great importance of the terms' of the contract of sale, upon the right of the consignor to control the goods after they have been put on board ship. In that case, some brandy taken on board the ship, was claimed by a neutral Kye, who was the consignee. The captors insisted that the brandy remained the property of the consignor, who was an enemy. The facts seem to have been, that Kye ordered the brandy of the consignor, who put it on board the ship at Cette, and had bills of lading made out, which expressed that the brandy was shipped on account of Kye, and at his risk. Drafts were drawn by Kye's directions on his correspondent, who dishonored them by mistake, and the consignor, under a mistaken idea that Kye was insolvent, took legal steps in Cette, by which the master of the ship was ordered not to deliver the goods to Kye, but to the consignor's agent: the order of revocation was peremptory. It
(«) The Constantia (Henrickson), 6 Rob. 321.
was proved that Kye was in reality solvent, and that the consignor was under a mistake. The letters containing Kye's orders for the brandy, were not at first before the Court. Lord Stowell, after pointing out with great clearness that the consignor had, in fact, made a revocation, and that, therefore, the only question was, if he had a right to make it, and that neither by the law of England nor of France, was there an unlimited power of stoppage in transitu in the one country, or revendication in the other, except where the purchaser had failed, said that in this case Kye was not insolvent, and, therefore, the goods were Kye's, "unless it can be shewn that the right of the "shipper extend further than I have stated it, and "that it amounts to an unlimited right to vary the "consignment at pleasure; where goods are shipped "without orders, such a right exists. The seller, if he "may be so described, retains an absolute power over "them, for there is no purchase. But when orders "have been received and executed, and delivery has "been made to the master of the ship, and bills of "lading signed, the seller is functus officio, except in "the peculiar case in which he is again reinstated by "the privileges of the vendeur primatif. That will "make it a matter of fundamental importance, that "the letters containing the original order should be "produced. The mercantile law I take to be clear "and distinct, that the seller has not a right to vary "the consignment, except in the case above stated. "The mischief and inconvenience that would ensue "on a contrary supposition, are extreme. The goods "might be put on board, and might lie at the risk of "the consignee for two or three months, and if the "consignor could come and resume them at pleasure, "it would place the consignee in a situation of great "disadvantage, that he should be exposed to the risk "during such a length of time, for an object that "might eventually be defeated at any moment, by the "capricious or interested change of intention in the "breast of the consignor; it would be to expose the "consignee altogether to the mercy of the consignor."
It is probable that the law would be the same if the goods were delivered to a carrier by land, for as far as regards the vesting of the property, the bill of lading has no peculiar legal effect: it is a direction to the shipowner as to the person to whom he is to give the goods, and a contract on his part to give them according to that direction, and has precisely the same effect on the vesting of the property, that a verbal agreement to the same effect would have had. It is very strong evidence of what the shipper intended in shipping the goods, but his intention has not the more effect because it is expressed in the shape of a bill of lading. If the vendor and the purchaser have come to the binding agreement, that the purchaser is to have forthwith certain goods, the vendor cannot, without the consent of the purchaser, add fresh conditions; and if he orders the actual holder to keep back the goods till the purchaser has done something, which he is not bound to do, the order is void, and the holder obeys it at his peril, and it is no matter that the holder is a shipowner, and the order in the shape of a bill of