count first mentioned was delivered by the said Henry Poole to the plaintiff as the agent of the said George Rennie; and the said delivery to the plaintiff as such agent, was and is the delivery of the said lastmentioned bill of lading to the said George Rennie in the said first count mentioned; nevertheless, the plaintiff did not deliver the said last-mentioned bill of lading, or any part thereof, to the said George Rennie, nor did he transmit the same, or any part thereof, nor did he suffer or permit the said George Rennie to transmit the same, or any part thereof to the said Mhowjee D'harsey & Co.; but, on the contrary thereof, after the said shipment, and after the said vessel had proceeded on her said voyage, with the said goods and merchandise so on board the same as aforesaid, to wit, on the 10th of October, 1847, the plaintiff fraudulently caused and procured the said George Rennie to endorse, and the said George Rennie fraudulently endorsed, the said bill of lading to him, the plaintiff, to wit, for the purpose of securing a certain debt then alleged to be due from the said George Rennie to the plaintiff, which said last-mentioned endorsement was and is the said endorsement, assignment, and delivery of the said bill of lading to the plaintiff in the said first count first mentioned: That, afterwards, to wit, on the 10th of January, 1848, the said vessel arrived at Bombay aforesaid, and the said *vessel there remained at Bombay from and after the *307] said arrival thereof there as aforesaid, for a long space of time, to wit, for the space of four months then next following, the same being a sufficient and reasonable time for the holder, endorsee, or assignee of the said bill of lading to produce the same to the said Henry Poole, who during all that time was the master of the said vessel, and the agent of the defendant in that behalf, to wit, until the 10th of May, 1848; and during all that time, the said Henry Poole, so being such master as aforesaid, was ready and willing to deliver the said last-mentioned goods and merchandise to the holder, endorsee, or assignee of the said last-mentioned bill of lading, on production thereof by him, and during all that time he the said Henry Poole used all reasonable care and diligence to discover the holder, endorsee, or assignee of the said last-mentioned bill of lading, but was wholly unable so to do, and, during all that time no holder, endorsee, or assignee of the said lastmentioned bill of lading was ready, at Bombay aforesaid, to produce the last-mentioned bill of lading, and to receive the said last-mentioned goods and merchandise, or any part thereof: That afterwards, and at the expiration of such reasonable time as aforesaid, to wit, on the 10th of May, in the year last aforesaid, because it then became and was necessary for the said vessel to leave Bombay aforesaid, and to proceed with and prosecute the further voyage of the said vessel, and because the said Mhowjee D'harsey & Co. produced the last-mentioned copy of the said invoice of the said goods and merchandise in the said last-mentioned bill of lading mentioned, together with the said letter of advice

[*308

of such shipment as aforesaid, so sent by the said George Rennie as aforesaid, and then demanded the said last-mentioned goods and merchandise from the said Henry Poole, so being such master as aforesaid, and then *affirmed that they were the true owners of the said last-mentioned goods and merchandise, he, the said Henry Poole, on the faith of the said invoice and letter of advice, and being persuaded by the contents thereof that the said last-mentioned goods and merchandise were the goods and merchandise of the said Mhowjee D'harsey & Co., and that they had been so shipped as aforesaid for and on behalf and for the benefit of the said Mhowjee D'harsey & Co. by the said George Rennie, as the agent of the said Mhowjee D'harsey & Co., he, the said Henry Poole, as he lawfully might, then, to wit, on the day and year aforesaid, delivered the said last-mentioned goods and merchandise to the said Mhowjee D'harsey & Co.; which was the delivery of the said last-mentioned goods and merchandise by the plaintiff in that behalf in the said first count complained of,—verification.

The eighth plea was similar to the seventh, and applied to the three casks of cochineal in the second bill of lading mentioned.

To these pleas the plaintiff demurred specially, assigning for causes (as to each), that the said plea is double and multifarious, in this, to wit, that it sets up and offers several separate and distinct defences to the said action, that is to say, that the plaintiff was not the bona fide holder, endorsee, and assignee of the said bill of lading in that plea mentioned, and also states that the defendant was excused from delivering the said goods and merchandise in that plea mentioned to the holder, endorsee, and assignee of the said bill of lading, by reason of the laches and default of the holder thereof, in not producing the same to the master of the said vessel, and not being ready to receive the said goods and merchandise within a reasonable time for that purpose, and also that the said goods and merchandise in that plea mentioned were delivered to the consignee and *true owner thereof, who, as such, [*309 was entitled to the delivery thereof, and also that the holder and assignee of the said bill of lading in that plea mentioned, was the agent and consignee and true owner thereof, to whom the goods and merchandise in that plea mentioned were in fact delivered;—that the plea was an argumentative traverse and denial of the averment in the first count, that the plaintiff was the bona fide holder, endorsee, and assignee of the said bill of lading in that plea mentioned;-that the plea was an argumentative traverse of the usage and custom of merchants in the first count mentioned, to deliver the said goods and merchandise to the bonâ fide holder, endorsee, and assignee of the bill of lading;-that the plea was an argumentative traverse of the duty alleged in the first count, to deliver the same to the bonâ fide holder, endorsee, and assignee of the said bill of lading;—that the plea confessed the matters and causes

of action in the first count mentioned, but did not sufficiently, or at all, avoid the legal effect and consequences thereof.

The defendant joined in demurrer.

Cowling, in support of the demurrers.(a)-The seventh and eighth pleas are bad in form and in substance. *[MAULE, J.—We all *310] think the pleas are bad. For the present, you may confine yourself to the declaration.] It is submitted that the endorsee of a bill of lading may maintain an action for a breach of the duty resulting from the contract on the part of the shipowner; and that this declaration may be sustained, either as an informal count in trover, or as a count founded upon that duty. The facts, as they appear upon the record, are these:-The defendant, a shipowner, receives goods from Rennie; his agent, the captain, signs a bill of lading, admitting the receipt of the goods from Rennie, and undertaking to deliver them, at Bombay, to Rennie's order, on payment of freight. The declaration states that the freight was paid, and alleges a well-known usage, of which, as part of the law-merchant, the court will take notice. [MAULE, J.-Such a usage must be alleged as part of the contract; otherwise, it is a mere statement of evidence.(b)] The plaintiff became an endorsee of the bill of lading for a valuable consideration; and of that fact the defendant had notice. The result is, that the defendant having received the goods, to be delivered to Rennie's order, and Rennie having, by endorsing the bills of lading, conveyed the goods to the plaintiff, of which the defendant had notice, the latter is estopped from denying the plaintiff's right to the possession of them. [MAULE, J.-All this history of the goods and the bills of lading, is like the allegation of the finding in trover.] The declaration might possibly be bad on special demurrer, for stating all these facts; but it is clearly sufficient, on general demurrer and it goes on to allege a conversion. The defendant having, by his agent, signed the bills of lading for a valuable consideration, and they having been, with his knowledge, endorsed over to the plaintiff, an implied duty arose, on the part of the defendant, to deliver the goods to the plaintiff, as such endorsee; and case lies against *311] him for a breach of such implied duty. [MAULE, J.-There seems to me to be a manifest want of privity. Have you any authority to fortify your position?] Levy v. Langridge, 4 M. & W. 337,†

(a) The points marked for argument on the part of the plaintiff, were-"that the pleas respectively were multifarious, as raising several distinct defences; that they respectively contained argumentative traverses of material averments in the first count of the declaration; and that they confessed the duty alleged, and the breach of it, as charged in the first count, and showed no sufficient legal avoidance of or excuse for such breach: and,—if it were intended to be argued that the first count of the declaration was bad,—that the action lay by the assignee of the bill of lading, in respect of the duty attaching upon the shipowner, as averred in that count; or, at all events, that it was sufficient, on general demurrer, as a special count in trover, inasmuch as it showed the legal property in the goods to have been vested in the plaintiff, and a conversion by a tortious misdelivery."

(0) And see 8 M. Gr. & S. (E. C. L. R. vol. 65), note A.

is an authority for it. There, the declaration, in case, stated that L., the father of the plaintiff, bargained with the defendant to buy of him a gun, to wit, for the use of himself and his sons; that the defendant then, by falsely and fraudulently warranting the gun to have been made by Nock, and to be a good, safe, and secure gun, sold the said gun to L., for the use of himself and his sons, for 247.; whereas, in truth and in fact, the defendant was guilty of great breach of duty, and of wilful deceit, negligence, and improper conduct, in this, that the gun was not made by Nock, nor was a good, safe, and secure gun, but, on the contrary thereof, was made by a very inferior maker to Nock, and was a bad, unsafe, ill-manufactured, and dangerous gun, and wholly unsound, and of very inferior materials,-of all which the defendant, at the time of such warranty and sale, had notice; and that the plaintiff, knowing and confiding in the said warranty, used the gun, which but for the warranty he would not have done; and that the gun, being in the hands of the plaintiff, by reason and wholly in consequence of its weak, dangerous, and insufficient construction and materials, burst and exploded, whereby the plaintiff was greatly wounded, &c., and wholly by means of the premises, breach of duty, and improper conduct of the plaintiff, lost the use of his hand and it was held, on error (after verdict for the plaintiff on not guilty, and on other pleas denying the warranty, and that the gun was unsafe, &c.), that the action was maintainable. Lord DENMAN,-in giving the judgment *of the court of error, there [*312 says: "We agree with the Court of Exchequer, and affirm their judgment, on the ground stated by PARKE, B., that, as there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time, as one of its results, the party guilty of the fraud, is responsible to the party injured.'" Here, there was no fraud: but there was something that was equivalent, viz., the signing a bill of lading, contemplating the goods to be deliverable to the shipper's order. The two cases, therefore, in effect, contain the same ingredients; and the same objection applies to both, there was no contract with the plaintiff. [MAULE, J.— They seem to put it on the ground of a public wrong. A public wrong, from which a private and particular injury results to an individual, gives that individual a right of action. But, where there is a private wrong, it is hard to say that one who sustains a private injury (but with whom no contract is made), can maintain an action. Any friend of the plaintiff in that case might bring an action,-any assignee, except one claiming through a thief, might equally maintain an action for a resulting injury, if the gun was sold for the use of the plaintiff and his assigns!] The action was founded upon the breach of duty. [MAULE, J.-No. The court held that the defendant below knew that the son (the plaintiff below) would use the gun,—and put it on the ground of a false representation being made, to the prejudice of the person who acted upon it

It was put upon the ground, not of breach of duty at all, but of tort. The plaintiff was one of the very persons for whose use the gun was understood to be sold.] In this case, the defendant knew that the bills of lading had been endorsed to the plaintiff for a valuable consideration. WILLIAMS, J.-If there had been any fraud or *misrepresenta*313] tion here, the case of Levy v. Langridge would have been in point. But this is purely matter of contract. CRESSWELL, J.— In Levy v. Langridge, the defendant below did wrong in the first instance, in selling a bad gun. But, here, the defendant did no wrong in signing the bills of lading.] The defendant has, by his conduct, induced a third person to give value for the bills of lading. [MAULE, J.-The utmost that can be said, is, that he has induced the plaintiff t imagine that he had a right which the law did not give him. Can your view be sustained, without considering the endorsement of the bills of lading to transfer the property in the goods to the plaintiff? If that be so, it comes round to trover.] That might have been so, if this had been a case of negligence, and not of misfeasance. In Boorman Brown, 3 Q. B. 511 (E. C. L. R. vol. 43), 2 Gale & D. 793, the decl ration (in case) stated, that the defendant was an oil-broker, and that the plaintiffs, linseed-crushers, retained him, as such broker, to sell and deliver for them thirty tons of linseed oil, according to the contracts of sale, to such persons as should purchase, for commission and reward to the defendant in that behalf, which retainer he accepted; that he, as such broker, in pursuance of the retainer, made a contract between the plaintiffs and P., by which the plaintiffs sold to P., and he bought of them, the thirty tons, at the price, &c., to be delivered by parcels at a place and times named in the declaration, each parcel to be paid for in ready money; that the plaintiffs consigned two of the parcels to the defendant, and he delivered them to P., on payment; and that, after the making of the contract, and in pursuance thereof, and of the retainer, the plaintiffs consigned to the defendant, as such broker, the residue of the thirty tons, to be delivered by him to P., on *pay*314] ment; that the oil arrived, &c., of which the defendant had notice, and took upon himself the delivery according to the contract; and thereupon it became and was the defendant's duty, as such broker as aforesaid, to use all reasonable care that the oil should not be delivered to P., or any other person, without the price being paid to the defendant, according to the contract; yet that the defendant, not regarding such duty, did not use reasonable care, &c., that the oil should not be delivered, &c., without the price being paid, but neglected and refused so to do, and so negligently and carelessly behaved in the premises, that, by the defendant's mere carelessness and negligence, the last-mentioned oil was delivered to H. & Co., without the price being paid by P., or any other person, to the defendant; by reason whereof, and of P. having become bankrupt and unable to pay, the plaintiffs lost the said oil, and