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rights. And, does a bill of lading furnish no evi-
dence, 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. Pres-
cott,) between merchants residing in different coun-
tries, the goods be shipped and consigned to the prin
cipal 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 con-
signee; 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, 25. Note.

c 1 Alk. 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 on 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 be an agreement to the contrary. It would be a sin

a 6 East, 28. Note.

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schaft.

1818. gular absurdity, indeed, if the law, upon the instru ment, presumed that the consignee was the owner, The Friend- and at the same time inferred 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, can 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 lading 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 between 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, 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, that they 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

a 5 Burr. 2680.

b 1 T. R. 659.

c7 T. R. 330.

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were bona fide neutral, it is incredible, that the invoices and letters would not have accompanied the shipment. Is it not equally probable, where the shipment is not on neutral account, or partly on neutral and partly on hostile account, and there is no attempt at deception, that it would have been accompanied with letters and invoices? Yet in the vast multitude of the shipments clearly on enemy account, made by this ship, and which have been condemned without a controversy, there is not one in ten thus accompanied. The packet sails between London and Lisbon with a regularity, certainty, and frequency, little short of what takes place in transmissions by mail. It is the great and established medium of conveyance, established by treaty stipulations, for passengers and letters. Is it strange, therefore, that all the communications between the shipper and the owner of the goods, except a copy of the bill of lading, (which at once evidences the property, and is directory to the master,) should have been sent by this certain and regular and official medium of conveyance? If duplicates of these communications had accompanied the shipments in question, this unusual caution might have been construed into a proof of guilt, and these additional evidences of neutral proprietorship stigmatized as the badges of fraud. But it is alleged, also, that the bills of lading are not verified. The only individual of the crew examined by the commissioners, is the master, and he supports the bill of lading as far as can be expected of a carrier-master. In answer to the 13th interrogatory, he declares that the bills of lading are not false or colourable; and in answer to the 20th,