the circuit court was in general terms. It cannot, 1818. The Friend schaft. 1818. The Friendschaft. rights. And, dces a bill of lading furnish no evidence, not even presumptive, of proprietary interest in the consignee? It is understood, and such was the language of this court in the case of the St. Joze Indiano, that in general the rules of the prize court, as to the vesting of property, are the same with those of the common law. Now, "every authority which can be adduced, from the earliest period of time down. to the present hour, agree, that at law, the property does 'pass as absolutely and as effectually, (by a bill of lading,) as if the goods had been actually delivered into the hands of the consignee." "If upon a bill of lading," (says Lord Hardwicke, in Snee v. Prescott,c) between merchants residing in different countries, the goods be shipped and consigned to the principal expressly in the body of the bill of lading, that vests the property in the consignee." The right of the consignor to stop 'goods in transitu is not founded on any presumed property in the consignor, but ne: cessarily supposes the property to be in the consignee; for, "it is a contradiction in terms, to say a man has a right to stop his own goods in transitu." It is a right founded wholly on equitable principles, "which owes its origin to courts of equity-and, the question is not whether the property has vested under the bill of lading, for that is clear; but whether on the insolvency of the consignee, who has not paid for the goods, the consignor can countermand the con a 1 Wheat. 212. Per Buller, J. in Dom. Proc. Lickbarrow v. Mason, 6 East. 23. Note. c 1 Atk. 245. signment, or, in other words, devest the property which was vested in the consignee." Unless, therefore, a totally different rule, as to the vesting of property, is to be asserted in a court of prize from that which is established at law, a bill of lading absolutely vests the property in the consignee, and, of course, is the appropriate and definite evidence of his proprietary interest. But, it is said, these bills of lading do not express the shipment to be for the account and risk, of the consignees, and state that the freight has been paid in London, and, "of course, by the consignors." Surely it is not seriously contended, that the omission to declare the shipment to be on account of the consignees, and the declaration that the freight has been paid in London, and, of course, by the consignors," could have been designed to secure to the consignors the right of stopping in transitu? This right is founded on principles of equity which give it a direct application to shipments made un account of the consignees, and which have no connection whatever with the legal consequences of the payment of freight. Let us see, however, what inferences may be fairly drawn from the peculiarities. which are noticed in the bills of lading. They omit to state that the shipment is on account and risk of the consignees. Shall we thence infer that the shipment is on account and risk of the consignors ?This is not the inference of the law. If the bill of lading vests the property in the consignee, he, of course, sustains the peril of the shipment, unless there he an agreement to the contrary. It would be a sin a 6 East. 28. Note, 1818. The Friend schaft. 1818. The Friendschaft. gular absurdity, indeed, if the law, upon the instrument, presumed that the consignee was the owner, and at the same time Jerred that he did not bear the ordinary risks of ownership. Where the shipment is on account and at the risk of the consignor, and not of the consignee, there it may be proper to express the fact, because it is opposed to the legal presumption-But that an omission to state, what. without statement is presumed, c..n be converted into an argument against the presumption-will be an instance of intellectual dexterity, rather fitted to surprise than to satisfy the inquirer after truth. A bill of lad ing evidences an agreement made by the master with the shipper for the delivery of the goods to the consignee. His undertaking is simply to carry the goods for the stipulated price to the consignee. He knows not that the consignee is to sustain the risk of the shipment-He cannot, therefore, with propriety, aver it in his contract. If, indeed, the consignor is to sustain the risk, and wishes this fact to be stated in the master's undertaking, then has he the full evidence which warrants the insertion of such a clause in the bill of lading. And, accordingly, such is the mercantile usage. Bills of lading ordinarily express account and risk when they are not the account and risk of the consignee. But it is otherwise with invoices-These are documents passing be. tween the parties to the shipment, and contain the declaration of the consignor to the consignee. These, therefore, declare, however it may be, at whose account and hazard the shipment is made. The other peculiarity noticed in the bills of lading is, that the freight is paid in London, and, "of course, by the consignors." If this corollary, thus summarily deduced, of a payment by the shippers, mean no more than a payment by the consignees through the shippers as their immediate agents at London, it may be admitted as probable, and, at all events, as harmless. But if it mean a payment by the shippers as principals, or on their own account, then it is denied to follow from the proposition which it claims as its premises. But the peculiarities, thus examined, are relied on as constituting a support on which to rest the doctrine contained in the cases of Davis, et al., v. James,a and Moore v. Wilson, which are cited, (as it would seem,) to prove, that where the consignor pays the freight, the bill of lading does not vest the property in the consignee; It is not material to inquire how far these cases would now stand the test of a strict scrutiny. It is but doing justice, however, to the great men who decided them, to say, thatthey establish no such doctrine. Lord Mansfield expressly declares, that he does not proceed at all on the ground of proprietorship, but simply on the agreement of the carrier. And Lord Kenyon, in Dawes v. Peck, states, that the doctrine which they furnish is no more, than, that the consignor may bring an action for breach of contract against the carrier on his agreement, where the consignor is to be at the expense of the carriage, "where he stands in the character of an insurer to the consignee for the safe arrival of the goods." It is alleged, that if the interest in these claims 1818. The Friend schaft. a5 Burr. 2680. 1 T. 'R. 659. c T. R. 330. |