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as general liens were not to be favoured, the party who sets up such a claim ought to make out a very strong case, and evidence of a few recent instances of detainer by carriers, for their general balance, would not be sufficient to furnish an inference, that the party who dealt with a carrier, had knowledge of the usage, and so to warrant a conclusion, that he contracted with reference to it, and adopted the general lien into the particular contract.

A carrier had given notice that all goods would be subject to a lien, not only for the freight of the particular goods, but also for any general balance due from their respective owners, goods having been sent by the carrier addressed to the order of J. S. a mere factor; it was holden P that the carrier had not, as against the real owner, any lien for the balance due from J. S. Query, whether, if the notice had been, that all goods, to whomsoever belonging, should be subject to a lien for any general balance that may be due from the persons to whom they are addressed, he would have any right to retain the goods for the balance due from I. S.?

As liens at law exist only in cases where the party entitled to them has the possession of the goods; consequently, if a carrier parts with the possession of the goods, after the lien attaches, the lien is gone. An usage for carriers to retain

p Wright v. Snell, 5 B. and A. 350.

forwarded from Manchester to his warehouse in London, and that the defendant was entitled to retain against the estate for the general balance due from H. for the carriage of the goods. This right was established by evidence of the defendant having before claimed and been allowed to retain for his general balance, both against bankrupt estates and solvent customers, and also by the evidence of a principal carrier on the western road to the same effect, respecting himself. “The onus of making out a right of general lien lies upon the wharfinger. There may be an usage in one place varying from that which prevails in another. When the usage is general and prevails to such an extent, that a party contracting with a wharfinger must be supposed conusant of it, then he will be bound by the terms of that usage; but then it should be generally known to prevail at that place. If there be any question as to the usage, the wharfinger should protect himself by imposing special terms, and he should give notice to his employer of the extent to which he claims a lien. If he neglects to do so, he cannot insist upon a right of general lien for any thing beyond the mere wharfage.” Per Cur. Holderness v. Collinson, 7 B. and C. 212.

goods', as a lien for a general balance of account between them and the consignees, does not affect the right of the consignor to stop the goods in transitu. A carriers who, by the usage of a particular trade, is to be paid for the carriage of goods by the consignor, has not any right to detain them against the consignee for a general balance due to him for the carriage of other goods of the same sort, sent by the consignor. If a passengers book himself to go by a particular coach, and leaves his portmanteau, the carrier will have a lien for something, though not for the whole fare.

IV. By whom Actions against Common Carriers ought to be

brought.

In general the action against a carrier, for the non-delivery or loss of goods, must be brought by the person in whom the legal right of property in the goods in question is vested at the time; for he is the person who has sustained the loss, if any, by the negligence of the carrier, and whoever has sustained the loss is the proper party to call for compensation from the person by whom he has been injuredt Hence where a tradesman orders goods to be sent by a carrier, as at the instant when the goods are delivered to the carrier, such delivery operates as a delivery to the purchaser, and the whole property (subject only to the right of stoppage in transitu by the seller,) vests in the purchaser, he alone can maintain an action against the carrier for any loss or damage to the goods; and this rule holds as well where the particular carrier is not named by the purchaseru (8) as where he ist; and it holds

9 Oppenheim v. Russell, 3 Bos. and t Dawes v. Peck, 8 T. R. 330. 1 Atk. Pul. 42.

248, S. P. r Butler v. Woolcot, 2 Bos. and Pul. u Dutton v. Solomonson, 3 Bos. and N. R. 64.

Pul. 584. s Higgins v. Bretherton, 5 C. and P. 2. x Dawes v. Peck, supra.

(8) Delivery of goods by the vendor, on behalf of the vendee, to a carrier, although not named by the vendee, is a delivery to the vendee. Dutton v. Solomonson, 3 Bos, and Pul. 582. And the goods are, immediately upon the delivery to the carrier, at the risk of the vendee, although the carrier is to be paid by the vendor. King v. as well in the case of a carrier by water as where the goods are conveyed by land. Wherey goods are sent to a customer for approval, as until acceptance no property vests in the consignee, the action against the carrier for loss is properly brought by the consignor.

The plaintiff had shipped goodsz on board the Mercurius, of which the defendant was owner, to be carried from London to Tonningen. The goods (as appeared by an admission on the part of the plaintiff,) were expressed in the bills of lading, to be shipped by order on account of Hesse and Co. of Hamburgh. The ship arrived in the river Eyder, but was prevented from proceeding to Tonningen by the commander of one of his Majesty's frigates, and ordered to return home. After her return, the captain made an affidavit, that he believed the cargo to be Danish property; whereupon the goods were unloaded and delivered over to the admiralty marshal, and libelled in the admiralty court; the plaintiff afterwards recovered them by a proceeding in that court. The action was brought to recover the expenses incurred by the suit in the admiralty. On the part of the defendant it was insisted, that the goods being shipped by order and on account of Hesse and Co. the property vested in them immediately on their being shipped on board the Mercurius. Dawes v. Peck and Dutton v. Solomonson, were cited. It was also urged, that a recovery by the present plaintiff could not protect the defendant from an action at the suit of Hesse and Co. On the part of the plaintiff it was contended, that there was a distinction between the carrying goods from one part of England to another, and the transporting them beyond sea. That after a delivery of goods to a carrier, to carry them from one part of England to another, the vendor had no property in the goods, but only a right of stopping in transitu; and it was admitted, that if the goods were directed to be sent by a carrier, without specifying the car

y Swain v. Shepherd, 1 M. and Rob.

223, Parke, J.

z Brown v. Hodgson, London Sittings,

B. R. 2nd March, 1809, 2 Campb. 36.

Meredith, 2 Campb. 639. The vendor is not bound to enter and insure the goods with the carrier as above the limited value, without instructions for that purpose. Cothay v. Tute, 3 Campb. 129. But the delivery to the carrier ought to be in such a manner, as to furnish the purchaser with a remedy over against the carrier, in case of loss. Buckman v. Levi, 3 Campb. 414. See also Clarke v. Hutchins, 14 East, 475.

1

rier, the delivery to the carrier was a delivery to the vendee; but urged that, in the case of goods sent abroad, if the goods arrived safe, they were to be paid for: aliter, if they do not arrive. Lord Ellenborough, C. J. “They are shipped by order and on account of Hesse and Co. I can recognize no property but that recognized by the bill of lading.” Plaintiff nonsuited.

It is observable that, in the case of Davis v. James, 5 Burr. 2680, it was holden, that the consignor might maintain the action; but the ground of that decision was, that the consignor had made himself responsible to the carrier for the price of the carriage. So where, by the bill of lading, the captain was to deliver the goods for the consignor, and in his name to the consignee, and at the time of shipment the consignee had no property in the goods, it was holden”, that an action against the ship-owners for damage done to the goods, must be brought in the name of the consignor; and that, although the consignee had insured the goods and advanced the premiums of insurance before the arrival of the ship. In Moore v. Wilson, 1 T. R. 659, where the action was brought by the consignor, and the plaintiff having averred in his declaration, that the hire was to be paid by him, proof that the hire was to be paid by the consignee was holden not to be a variance, on the ground that whatever might be the contract, between the vendor and the vendee, the agreement for the carriage was between the carrier and the vendor, the latter of whom was by law liable. Where goods were delivered to a carrier at Exeter to convey to Falmouth, and there deliver them to an agent, who was to forward them to the consignee abroad; and the carrier detained the goods on the ground of a lien against the agent for his general balance ; it was holden that trover might be maintained against the carrier at the suit of the consignorb. An action lies against the commander of a ship of war who takes the bullion of a private merchant on board, for not safely keeping and delivering ito. So where the master of a store-ship, in the king's service, took in the bullion of a private merchant on freight, from Gibraltar to Woolwich, it was holdend that an action lay against him for the loss of the bullion.

a Sargent v. Morris, 3 B. and A. 277. c Hodgson v. Fullarton, 4 Taunt, 787. b Tagliabue v. Wynn and another, d Hatchwell v. Cooke, 6 Taunt. 577.

Cornwall Lent Ass. 1813. Wood, B.
MSS.

V. Of the Declaration and Pleading under New Rules.

rea

FORMERLY the declaration in actions against common carriers stated their employment as common carriers, their liability by the custom of the realm, a delivery to, and acceptance by the defendants of the goods to be carried, for sonable hire or reward, concluding with the loss or damage to the goods; but the modern practice is not to declare in this form, but in assumpsit (9), and not to state either the employment of the defendants as common carriers, or the custom of the realm (10) as to their liability. This form of

e Herne's Plead. 76. Vid. Ent. 37, 38.

(9) It may be observed, however, that where the circumstances of the case require a count in trover to be added, the ancient form of declaration is adhered to, or (what is more usual) a concise form, analagous to the ancient form, and founded on a breach of duty is adopted. It is worthy of remark, that Denison, J. said, in Dale v. Hall, B. R. H. 24 G. 2. MSS. that where the action was founded on the custom, it was ex contractu, and that trover and an action on the custom could not be joined ; and in Boson v. Sandford and another, Salk. 440, the court held, that an action, charging * the defendants with a breach of their duty as carriers, was not an action ex delicto but ex quasi contractu, and on this ground they decided, that the action being brought against two of four part-owners of a ship could not be sustained, although the defendants had not pleaded this matter in abatement, but had relied on the general issue, not guilty. This case, however, as to the taking advantage of the omission of some of the partners on the general issue, has been overruled in Rice v. Shute, 5 Burr. 2611, and in subsequent cases, and as to the form of the action, Boson v. Sandford, was overruled in Dickon v. Clifton, 2 Wils. 319, which was recognized by Lord Ellenborough, C. J. delivering the opinion of the court in Govett v. Radnidge, 3 East,

62.

(10) “The custom of the realm is the law of the realmt, and consequently it need not be set forth in the declaration.” Per Denison, J. in Dale v. Hall, MSS. and per Lord Hardwicke, C. J. in Boucher v. Lawson, Ca. Temp. Hardw. 199. See also Hargrave's Co. Litt. p. 89, a. n. 7. “ It seems not only unnecessary, but even

* See the declaration, 2 Show. 478, and Carth. 158. + 1 Inst. 115, 6. Hob, 18.

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