Ct. op App.] Bristol and West op England Ba n k v. Mid l a n d Ba il w a y Co. [Ct. op Ape. of the plaintiffs were, they were not derived
directly or indirectly through Clark ; for Clark having the goods could convey no rig h t to any
one else. The plaintiffs cannot sue in contract, because there was no contract between them and the defendants ; they cannot sue in tort, because they had no interest in the goods at the time of the conversion. The wrongful act of the defendants, i f any, having been done before the plaintiffs acquired any title to the goods, such act does not afford the plaintiffs any cause of action :
Goodman v. Boycott, 2 B. & S. 1.
We submit that the view taken by Blackburn, J - in that case was correct, and that his .l'KW ' ment should be followed rather than that of the dissentient judge, Wightman, J. In that case Blackburn, J., at p. 9, said that the plaintiff there could maintain no action of trover or tres
pass for any act done to the title deeds, which were the subject of the action, before they were his, nor could he maintain in his own name any action on the contract of bailment for the loss admitted to have taken place before the plaintiff had any property in them. That opinion was adopted in Lord v. Price (30 L. T. Rep. N. »• 271, L. Rep. 9 Ex. 54). There i t was held that the purchaser of goods which remained in the posses
sion of the vendor subject to the vendor’s lien tor unpaid purchase money could not maintain an action of trover against a wrong-doer. Whatever title accrued to the plaintiffs, whatever rights they have acquired, they have no rig h t to main
tain this action. I f A. draws a cheque on his bankers to the order of B. and the bankers fa il to Pay the cheque when presented, the person who has a cause of action is the drawer A. not the Payee B. T h e payee is a stranger to the bankers.
That is precisely this case; fo r here the plain
tiffs are strangers to the defendants, and canno sue them. They have no cause of action either in contract or to rt. They referred also to
G lynn , M ills , and Co. v. Bast and West In d ia Bock*
Company, 43 L. T. Rep. N. S. 584 ; 4 Asp. Mar.
Law Cas. 345 ; 0 Q. B. Div. 475.
Sir Walter Phillimore, Poole, Q.C., and L. E Pyke for the respondents.— So long as the bi , of lading were outstanding they represen the goods, and the plaintiffs being the holders ot the hills of lading, were the owners of the goo . Therefore, the delivery by the defendan s Elark was wrongful. In Short v.
<13 L. T. Rep. N. S .674; L. Rep. 1 0. P. 248,252), which was decided before the case of b •
B u r d ic k (u h i sup.),goods were shipped for Bom y under a b ill of lading making them deliverable
“ to order or assigns ” The consignor indorsed the b ill of lading in blank and deposited i t with a banker as security for an advance of money, and, on his repaying the sum advanced, the biff or lading was re-indorsed and delivered bac j I t was held, that such re-indorsement ot the b ill of la d in g to him re m itte d the consignor
»ghts as against the shipowners under the original contract; and consequentiy th athe was entitled to sue them for a breach, whether occur ring before or after such re-indorsement, th a t is in accordance w ith the opinion e*P,re??e f Wightman, J. in G oo dm an v. B o y c o tt ( u b i s u p j , and is opposed to the view taken by B ack- man, J. in that case. The opinion of W ight- hian, J. is also supported by the decision
Vol. V I I . , N. S.
Pirie and Sons v. Warden (Sco. Sess. Cas., 3rd series, vol. 9, p. 523). There i t was held that, although delivery of a cargo had been wrongful, the plaintiffs were not precluded from acquiring rig h t to the cargo by subsequent indorsement of the b ill of lading, and that they had therefore a good title to sue for damages. They referred also to M ira b ita v. Im p e ria l Ottoman Bank, 3 Asp. Mar.
Law Cas. 591; 38 L. T . Rep. N. S. 597 ; 3 Ex.
Div. 164;
Barber v. Meyerstein, 22 L. T. Rep. N. S. 808 ; 3 Asp. Mar. Law Cas. O. S. 449 ; L. Rep. 4 E. & I.
App. 317, 332;
Merchant Shipping A ct 1862, ss. 66, 67 ; B ills of Lading A ct (18 & 19 V iot. c. I l l ) ;
C a rr v. London and North-Western R a ilw a y Com
pa ny, 31 L. T. Rep. N. S. 785 ; L. Rep. li) C. P.
307,318.
Castle, Q.C., in reply, referred to
Howard v. Shepherd, 9 C. B. 297 ; 19 L. J. 249, Q. B [ Lin d l e y, L.J. referred to Lickbarrow v. Mason, 5 T. Rep. 683; 1 Sm. L . Cas., 8th edit. 753.
Lopes, L.J. referred to Wilkinson v. Verity, 24 L. T. Rep. N. S. 32 ; L. Rep. 6 C. P. 206.]
Lin d l e y, L.J.—I do not th ink i t is necessary to take time to consider this case, although there are points in i t which are somewhat difficult. This is really an action by the plaintiffs, who are the Bristol and West of England Bank, to recover damages for the non-delivery of goods which they say were theirs. The facts are rather complicated, but the outline of them is not difficult to follow nor to state. Clark, a customer of the plaintiffs, bought cheeses and butter for sale, of course on the expectation of making a profit. I w ill leave out all reference to the butter and confine my remarks to the cheeses which we have heard more about. Clark employed a person named Hodgson in Canada to buy cheeses for him, and Hodgson bought tnem and shipped them to Bristol, and the b ill of lading which we have before us is, I think, in the ordinary form. I t states that the cheeses are marked and numbered in the margin, and are “ to be delivered from the ship’s deck ” and so on “ unto shippers’ orders or to their assigns, freight payable by consignee at the rate of ” so and so. I take i t that “ con
signee ” there obviously means the person who claims under the shipper—under the order or assignment of the shipper. I t does not mean somebody else. “ The goods to be received by the consignee immediately the vessel is ready to discharge, or otherwise they w ill be landed and stored at the sole expense and risk of their owner in the warehouse provided for that purpose, or in the public store as the collector of the port shall direct, and when deposited in the public store to be subject to rent ” and so on. The only other clause I need read I th in k is this : “ Freight, i f payable by shippers, is due in fu ll in exchange for b ill of lading, or, i f payable by consignees, on arrival of goods at place of destination, in exchange for delivery order. Settlement in either case to be made w ithout discount or abatement.”
I th in k that those are the important passages in the b ill of lading. The b ill of lading was indorsed by Hodgson, who was the shipper. Now, what was done w ith i t was this : I t was sent w ith a b ill of exchange drawn on Clark for the price to a bank at Toronto, and the bank at Toronto sent the documents (the b ill of exchange and the b ill of lading, and I suppose the insurance—I do not
L
74
Ct. op App.] Bristol an d West op Eng land Ba n k v. Mid l a n d Ra il w a y Co. [Ct. op App. know) to a London bank, the C ity Bank 1 th ink
in this particular case. The C ity Bank were the holders both of the b ill of lading and of the b ill of exchange. They sent the documents down to Bristol, showed them to Clark, and got Clark to accept the b ill of exchange. B ut the C ity Bank were not merely agents to collect for the Toronto bank. The C ity Bank bought the b ill of exchange, and that is shown by what is called a hypotheca
tion note, to which I do not attach very much importance, although i t has been a great deal discussed. I t merely shows the fact that the C ity Bank were the buyers of the b ill of exchange, and w ith it they had the b ill of lading. The hypothecation note runs thus : I t is addressed to the manager of the C ity Bank Lim ited London, and i t is w ritten by Hodgson:
“ We have this day sold to the Bank of Toronto a b ill of exchange for 3901. Os. 9d. on R. W. Clark, Esq., Bristol, against a shipment of 208 boxes cheese ex Indrani, Bristol. The agreement w ith the Bank of Toronto is, that the bills of lading are to bo given up to R. W. Clarke, Esq., upon payment, or banker’s guarantee, without preju
dice to your claim on us in the event of the b ill not being paid at m aturity; but i f they decline to accept, or i f the acceptance is not satisfactory to you, or i f the b ill be not paid at m aturity, then you are hereby authorised to retain the bills of lading, and at any time at your discretion to place the 208 cheeses in the hands of your brokers for sale ; ” and so on. I do not th in k I need read any more. Now, i t is quite obvious to me that the position of the C ity Bank was this : They were holders for value of the b ill of exchange. They were entitled to sue Clark upon it, of course, to recover the money. They had as security for that b ill of exchange the bills of lading for these cheeses. In other words, they were pledgees at law of these cheeses, not un< er the B ills of Lading Act, but quite apart from that statute. They had a right, on the production of the bills of lading and payment of freight, to receive the cheeses from the shipowner or the warehouseman where they m ight be stored. That was their position. Now, it appears that when the bills of exchange were about to become due Clark could not take them up. Clark requested the plaintiffs to take them up—to pay them—and the plaintiffs did so, and the plaintiffs got from the C ity Bank the bills of exchange and the b ill of lading which is indorsed in blank—and they become, so far as I can see, by that transaction, in point of title, the transferees of the title of the C ity Bank at the request of Clark. That is their position.
They have the same title to the goods that the C ity Bank had—a title to sue as pledgees of the goods at law for the delivery of the goods, of course upon payment of the freight i f the freight has not been paid. Now they go to the defendants for the goods. The defendants have had the goods handed to them by the shipowner, or by a person named F lin n who is acting for the shipowner, and it appears that the cheeses were taken to Avonmouth. They were to go to Bristol, and by the custom of the trade they were trans
shipped at Avonmouth. Flinn, who acted for the shipowner, deposited the cheeses w ith the Midland Railway Company to carry them, as I understand it, to Bristol, and then they were to deliver on the order of Flinn. Flinn, I suppose, would have no business to part with them except upon the pro
duction of the b ill of lading. He could not give a valid order—at least he could not, except at his risk and the risk of his masters and employers—
to deliver them to anybody except to those who were entitled to them. He had no more rig h t to deliver them to Clark than he had to deliver them to me. Clark goes and pays the freight. He does not produce the b ill of lading. He does that when the b ill of lading and the bills of exchange are s till in the hands of the C ity Bank. Clark gets the goods, whether by a false pretence or by misplaced confidence I do not know ; but he gets the goods from the defendants, who had no rig h t to deliver them to him. He produces no delivery order or any
thing else. In other words, he cheats the C ity Bank. He gets the goods from the defendants, those goods belonging to the C ity Bank as pledgees of the b ill of lading.
Now comes the question whether the plain
tiffs can sue the defendants in respect of those goods. M y answer is “ Yes.” I sec no difficulty at all about it, except the difficulty which I w ill allude to presently. I f the plaintiffs had as assignees the same title to these goods that the C ity Bank had, they were owners of the goods and could sue, in trover or detinue at common law, quite apart from the B ills of Lading Act, anybody who w rongfully withheld those goods. They go to the defendants; and the defendants say, “ No, we cannot give the goods to y o u ; we gave them to Clark.” Is that any answer P Now there is the whole difficulty. M r. Castle says “ Yes.” Mr. Castle says, upon the authority of Goodman v. Boycott (2 B. & S. 1), that there is a difficulty, and that the plaintiffs cannot sue. He says, “ Sup
posing that you are (as you say but which I deny) the owners of these goods, go and get them from those who have got th e m ; do not come to me who have not got them.” And the question arises whether i t lies in the mouth of the defendants to say “ We have not got the goods,” when thoy have w rongfully parted w ith them. M y answer is “ No.” I quite see that M r. Castle has the very high authority of Lord Blackburn for saying “ Yes.” Lord Blackburn differed from the learned judge, Wightman, J., who was his colleague in the case referred t o ; and i t is quite obvious that his view is opposed to that taken by Willes, J. in the later case, to which Sir W alter Phillim ore referred, of Short v. Simpson (13 L. T. Rep. N. S. 071 ; L. Rep. 1 C. P. 248), and that view is entirely inconsistent also w ith the Scotch case to which M r. Poole referred, of P-irie and Sons v. Warden (Sc-o. Sess. Cas., 3rd series, vol. 9, 523). On principle i t strikes me that there is not much in the view taken by Lord Blackburn if you look at i t apart from technicalities. I t is a mere question of pleading. Lord Blackburn s difficulty would have been got rid of immediately i f the vendor to the p la in tiff had been a co
p la in tiff ; there would have been no answer to the action at all. So here, if the C ity Bank were co-plaintiffs, there would be no answer at all. _ Is there anything, therefore, in substance which ought to induce us to say that this action cannot be maintained because you have not got the C ity BankP M y answer is, “ N o; it is a mere ques
tion of pleading, and there is no substance in it.”
I f there wore substance in it, we should be
M A R IT IM E LA W _C A SES.______________________ 75
C i. of Aff.] Bristol and West o r England Ba n kv. Mid l a n d Ra il w a y Co. [Ct. of Aim.
holding that the defendants had wrongfully got rid of nearly 18001. worth of goods, and were answerable to nobody at all, which is sheer non
sense. I t appears to me, therefore, that this case has been rig h tly decided, and the appeal must be dismissed; but I am not prepared to decide i t on the ground on which the Lord Chief Justice decided it, namely, that the plaintiffs are entitled to these goods, and to recover them under colour of E linn ’s title . I do not myself understand that F lin n ’s delivery order which the plaintiffs had was im portant except in this respect; it was a condition precedent to their recovering the goods.
They got the delivery order for what i t was w o rth ; but their title to the goods does not tu rn on the delivery order from I'lin n . I t turns on the b ill of lading which they got from the C ity Bank. In my opinion, therefore, this appeal must be dismissed, and dismissed w ith costs.
Fky, L.J.—I am of the same opinion, and when the facts of this case are threshed out it appears to me that the plaintiffs’ title to ie- cover is not very difficult to be stated. Accord
ing to the view I take, the b ill of lading was pledged to the Toronto Bank at the same time that the b ill of exchange was sold to that bank.
That bank became, in my opinion, pledgees of the b ill of lading. That pledge appears to have been transferred by the Toronto Bank to the C ity Bank, and thereupon they were the pledgees of the b ill of lading; they had the property in the goods. W hilst they had that property m the goods as pledgees a wrongful act was done by the defendant company ; they delivered tie goods which they had no rig h t so to deliver to Clark. B ut that wrongful act did not displace the property which was vested in the C ity Bar. . Their property as pledgees s till remains. When the Bristol Bank came to the City Bank and too up the b ill of exchange they did it, in my ,iudg ment, w ith the intention of becoming the assigns of all the rights of the C ity Bank. I t has >eeu argued th at they did not so do; they came as agents for Clark, and that they were merely to get back from Clark some rights in these 1 ■ Ju my judgment, th at is not the true nature the transaction between the parties, the p hable,the natural, tho reasonable transaction!
one upon which the Bristol Bank were to acquire
;dl the rights of the C ity B a n k -to use the well- known expression, they were to “ stand m shoes ” of the C ity Bank. The rig h t of Pr0P ^ { therefore which the C ity Bank had in these g ■ when the Bristol Bank paid them was transterreo from the C ity Bank to the Bristol Bank. They be came pledgees of the goods, and, as P ^ ’ can maintain trover or detinue for t g ■ When they apply for the goods they are . the goods are not there. Frim a facie i S them a perfect cause of action either of detinue against the defendants, who o g _ have had the goods; and tho only question the
°My point, at any rate, for consideration is this, whether that defence is affected by the
the wrongful act done by the defendant company was before the accrual of the plaintiffs ' Y fr y p o in t occu rred fo r decision m Go • B o y c o tt (u b i sup.) n e a rly t h i r t y years ago, and Was th e n de te rm in e d b y th e m dg m en senior ju d g e ag ainst th a t p o in t. I t was lie d th a t
’ t made no difference w h e th e r th e w ro n g ; was before o r a fte r the accrual o f th e p la in tiff.
title . I t is quite true that the very eminent colleague of that learned judge differed from him.
That decision appears to have stood from the year 1862 down to the present time unquestioned. No cases have been called to our attention in which any doubt has been thrown on the propriety of the decision of Wightman, J. On the contrary, i t appears to me a similar view was taken by Willes, J. in the subsequent case of S h o rt v.
S im p s o n (u b i sup.), and was also taken in the
S im p s o n (u b i sup.), and was also taken in the