Lickbarrow and Another against Mason and Others
| Jurisdiction | England & Wales |
| Judgment Date | 09 November 1787 |
| Date | 09 November 1787 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 35
IN THE COURT OF KING'S BENCH
2 H. Bl. 211. 6 East, 20.
7 T. R. 440. 1 Cam. R. 104.
S. C. 6 East, 21 (n); 1 H. Bl. 357; 5 T. R. 367, 683; 2 H. Bl. 211; 4 Bro. P. C. 57; 6 T. R. 131; 1 Sm. L. C. (llth ed.) 693. Referred to, In re Westzinthus, 1833, 5 B. & Ad. 834; Gurney v. Behrend, 1854, 3 El. & Bl. 637. Principle not applied, Griffiths v. Perry, 1859, 1 El. & El. 689. Referred to, Bateman v. Green, 1867, Ir. R. 2 C. L. 197; The Figlia Maggiore, 1868, L. R. 2 A. & E. 111; Rodger v. Comptoir D'Escompte, 1869, L. R. 2 P. C. 406; 5 Moo. P. C. N. S. 556; The Freedom, 1871, L. R. 5 P. C. 598; Hathesing v. Laing, 1873, L. R. 17 Eq. 100; Chartered Bank of India, &c., v. Henderson, 1874, L. R. 5 P. C. 513. Observed upon, Goodwin v. Robarts, 1875, 76, L. R. 10 Ex. 352; 1 App. Cas. 476. Referred to, Arnold v. Cheque Bank, 1876, 1 C. P. D. 587. Applied, Leask v. Scott, 1877, 2 Q. B. D. 381. Referred to, Ex parte Rosevear China Clay Company, 1879, 11 Ch. D. 570; Glyn v. East and West India Dock Company, 1880-82, 6 Q. B. D. 488; 7 App. Cas. 591. Discussed, Burdick v. Sewell, 1883-84, 10 Q. B. D. 371; 13 Q. B. D. 162; 10 App. Cas. 78. Applied, Cassaboglou v. Gibb, 1883, 11 Q. B. D. 806. Referred to, In re Ffrench's Estate, 1887, 21 L. R. Ir. 336; Bank of England v. Vagliano [1891], A. C. 169. Applied, Nash v. De Freville [1900], 2 Q. B. 83. Approved, Farquharson v. King [1901], 2 K. B. 708; [1902], A. C. 342. Discussed, Rimmer v. Webster [1902], 2 Ch. 169.
2T. R. 64. ' LICKBARROW V. MASON 35 lickbarhow and another against mason and others (a). Friday, Nov. 9th, 1787. [2 H. Bl. 211. 6 East, 20.] The consignor may stop goods in tranaitu before they get into the hands of the consignee, in case of the insolvency of the consignee : but if the consignee assign the bills of lading to a third person for a valuable consideration, the right of the consignor as against such assignee is divested. There is no distinction between a bill of lading indorsed in blank, and an indorsement to a particular person. [7 T. R. 440. 1 Cam. R. 104.] [S. C. 6 East, 21 (); 1 H. Bl. 357 ; 5 T. R. 367, 683 ; 2 H. Bl. 211 ; 4 Bro. P. C. 57; 6 T. R. 131 ; 1 Sm. L. C. (llth ed.) 693. Referred to, In re Westzinthus, 1833, 5 B. & Ad. 834 ; Gurney v. Behrend, 1854, 3 El. & Bl. 637. Principle not applied, Griffiths v. Perry, 1859, 1 El. & El. 689. Referred to, Bateman v. Green, 1867, Ir.-R. 2 C. L. 197; The Figlia Maggiore, 1868, L. R. 2 A. & E. Ill ; Rodger v. Comptmr D'Estompte, 1869, L. R. 2 P. C. 406 ; 5 Moo. P. C. N. S. 556 ; The Freedom, 1871, L. R. 5 P. C. 598; Hathesing v. Laing, 1873, L. R. 17 Eq. 100; Chartered Bank of India, &c., v. Henderson, 1874, L. R. 5 P. C. 513. Observed upon, Goodwin v. Robarts, 1875, 76, L. R. 10 Ex. 352; 1 App. Gas. 476. Referred to, Arnold v. Cheque Bank, 1876, 1 C. P. D. 587. Applied, Leask v. Scott, 1877, 2 Q. B. D. 381. Referred to, Ex parte Rosevear China Clay Company, 1879, 11 Ch. D. 570 ; Glyn v. East and West India Dock Company, 1880-82, 6 Q. B. D. 488; 7 App. Gas. 591. Discussed, Burdick v. Sewell, 1883-84, 10 Q. B. D. 371 ; 13 Q. B. D. 162 ; 10 App. Gas. 78. Applied, Cassaboglou v. Gibb, 1883, 11 Q. B. D. 806. Referred to, In reFfrenth's Estate, 1887, 21 L. R. Ir. 336 ; Bank of England v. Vagliano [1891], A. C. 169. Applied, Nash v. De Freville [1900], 2 Q. B. 83. Approved, Farquharson v. King [1901], 2 K. B. 708 ; [1902], A. C. 342. Discussed, Rimmer v. Webster [1902], 2 Ch. 169.] Trover for a cargo of corn. Plea, the general issue. The plaintiffs, at the trial before Buller, J. at the Guildhall sittings after last Easter term, gave in evidence that Turing and Son, merchants at Middlebourg in the province of Zealand, on the 22cl July 1786, shipped the goods in question on board the "Endeavour" for Liverpool by the order and directions and on the account of Freeman of Rotterdam. That Holmes, as master of the ship, signed four several bills of lading for the goods in the usual form unto order or to assigns; two of which were indorsed by Turing and Son in blank, and sent on the 22d July 1786, by them to Freeman, together with an invoice of the goods, who afterwards received them ; another of the bills of lading was retained by Turing and Son, and the remaining one was kept by Holmes. On the 25th July 1786, Turing and Son drew four several bills of exchange upon Freeman, amounting in the whole to 4771. in respect of the price of the goods, which were afterwards accepted by Freeman. On the 25th of July 1786, Freeman sent to the plaintiffs the 6wo bills of lading, together with the invoice which he had received from Turing and Son, in the same state in which he received them, in order that the goods might be taken possession of and sold by them on Freeman's account; and on the same day Freeman drew three sets of bills of exchange to the amount of 5201. on the plaintiffs, who accepted them, and have since duly paid them. The plaintiffs are creditors of Freeman to the amount of 5421. On the 15th August 1786, and before the four bills of exchange drawn by Turing and Son on Freeman became due, Freeman became a bankrupt: those bills were regularly protested, and Turing and Son have since been obliged, as drawers, to take them up and pay [64] them. The price of the goods so shipped by Turing and Son is wholly unpaid. Turing and Son, hearing of Freeman's bankruptcy on the 21st of August 1786, indorsed the bill of lading, so retained by them, to the defendants, and transmitted it to them, with an invoice of the goods, authorizing them to obtain possession of the goods on account of and for the use and benefit of Turing and Son, which the defendants received on the 28th August 1786. On the arrival of the vessel with the goods at Liverpool on the 28th August 1786, the defendants applied to Holmes for the goods, producing the bill of lading, who thereupon delivered them, and the defendants took possession of them (a) Vid. Salomons v. Nissen, post, 374, and Ellis v. Hunt, post, 3 vol. 464. [3 East, 390,592. 2 ibid. 232. 4 ibid. 211. 3 B. & P. 42. 1 ibid. 563. 2 ibid. 457. 1 H. Bl. 365. Esp. Gas. 578, 240.] 36 LICKBARROW V. MASON 2 T. R. 66. for and on account of, and to and for the use and benefit of Turing and Son. The defendants sold the goods on account of Turing and Son, the proceeds whereof amounted to 5571. Before the bringing of this action the plaintiffs demanded the goods of the defendants, and tendered to them tbe freight and charges ; but neither the plaintiffs or Freeman have paid or offered to pay the defendants for the goods. To this evidence the defendants demurred ; and the plaintiffs joined in demurrer. This was arguad in last Trinity term by Erskine in support of the demurrer, and Manly against it; and again on this day by Shepherd in support of the demurrer, and Bearcroft contra. Shepherd (a)1, after observing that, as the defendants were the agents of Turing and Son, the general question was to be considered as between the consignor and the indorsee of the bill of lading, contended, first, that, as between the vendor and vendee of goods, the former has a right to stop the goods in transitu, if the latter become insolvent before the delivery of them. And secondly, that such right cannot be devested by the act of the vendee's indorsing over the bill of lading to a third person. The first question has been so repeatedly determined, that it is scarcely necessary to cite any authorities in support of it. [The plaintiffs' counsel admitted the position.] Then, in order to determine the second, it is material to consider the nature of a bill of lading. A bill of lading cannot by any means be construed into a contract on the part of the consignor to deliver the goods mentioned in it to the consignee : it is only an undertaking by the captain to deliver the goods to the order of the shipper. As between the consignor and consignee, it is a bare authority to the captain [65] to deliver, and to the consignee to receive, them. That this is the true nature of a bill of lading...
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