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ces which

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a factor who

y him:(0) in ver the moner to himself in

al repudi in his own

the tenant;(a) and the principle of this decision holds whenever lands are let by a mere agent.(b)

66. Where goods are consigned by A. to B., the *former is con

sidered in law as the agent of the latter, for the purpose of contract- [ *49 ]

ing for the carriage; and therefore B., the consignee, must in general sue the party taking charge of the goods, and responsible for their safe delivery; and the reason of this is, that the delivery to the carrier is in law a delivery to B., in whom the property thereupon becomes impliedly vested (subject to the vendor's right of stoppage in transitu), except under special circumagent for an stances. (c) It must, however, be remembered that acceptance by the carrier

which he is

eal character

As sold by hin

is not an acceptance by the consignee.(d)

67. The above rule obtains in cases where the carrier is to be paid by the vendor and consignor (who is at law liable for the carriage) (e), the property being in the vendee.(f) But where a bill of lading stated that the () if, how goods were shipped, and their freight paid by the consignor, it was held to

o the contract:

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establish a privity of contract between the consignor and shipowner, which
would entitle the former to recover against the latter for non-delivery of the
goods the damages so recovered being held by the plaintiff in trust for the
consignee ;(g) and so, if there be a special agreement between the con-
signor and carrier, although payment of carriage or for booking the goods
by the former would not be evidence of such *agreement ;(h) and
where the goods are stated in the bill of lading to be shipped by
[*50]
order and on account of the consignor, and the freight is not paid by the
shipper, it is clear that the former only is entitled to sue, for the law recog-
nizes the property as recognized by the bill of lading ;(i) and this is equally
true if the goods were ordered by the consignee on an insurance being
effected, and on the terms of three months' credit from the time of arrival,
such arrival not constituting a condition precedent to the payment.(k)

68. We have seen that the reason why the consignee must in general sue the carrier in respect of goods delivered to him is, that the property therein vests by such delivery; but delivery to the carrier cannot be held to be a delivery to the consignee, unless the latter party has expressly directed the sending of the goods by some particular conveyance, or at least

(a) Evans v. Evans, 3 A. & E. 132.b

(b) Pigott v. Thompson, 3 B. & P. 147; Bowen v. Morris, 2 Taunt. 374; Israel v. Simmons, 2 Stark. R. 356.c

(c) Dawes v. Peck, 8 T. R. 330; Brown v. Hodgson, 2 Camp. 36; Per Lord Ellen-
borough, C. J., Griffin v. Langfield, 3 Camp. 254; Fragano v. Long, 4 B. & C. 219.d
(d) Per Parke, B., Johnson v. Dodgson, 2 M. & W. 656.

(e) Moore v. Wilson, 1 T. R. 659; Coleman v. Lambert, 5 M. & W. 502; see Domett
v. Beckford, 5 B. & Ad. 524, 525.e

(f) Per Lawrence, J., in King v. Meredith, 2 Camp. 639 and Dawes v. Peck, 8 T. R. 334.

(g) Joseph v. Knox, 3 Camp. 320.

(h) Davis v. James, 5 Burr. 2680; Dawes v. Peck, 8 T. R. 333, 334; Per Gaslee, J., Stephenson v. Hart, 4 Bing. 487. In Moore v. Wilson, 1 T. R. 659, such a contract must have been proved; see per Lord Denman, C. J., Gilbart v. Dale, 5 A. & E. 546; Jacobs v. Nelson, 3 Taunt. 423, supra, n. (ƒ).

(i) Brown v. Hodgson, 2 Camp. 36; 3 Id. 322, n. (a).

(k) Fragano v. Long, 4 B. & C. 219.h

Eng. Com. Law Reps. 30. Id. 3. Id. 10. Id. 27. Id. 33. Id. 31. Id. 10.

the sending by some conveyance or other. (7) So, where a special pro remains in the consignor as bailee ;(m) or the general property is not t until performance of some condition by the consignee, which is not formed by him ;(n) or if goods be sent for approval;(0) o [*51] *transaction be bottomed in fraud, so that there was no valid s transfer of property as between consignor and consignee;(p) in all cases the former has the right of suit and not the latter.

69. The terms of the bill of lading will in general determine who i proper party to sue the shipowner or carrier; the general rule being the party to whom the goods are by that instrument appropriated shou plaintiff, so that, where the consignment by bill of lading is to A. fo use of B., the latter should sue; (g) but, if the bill of lading express the goods are to be delivered to the consignee for the consignor, and i name, (the consignee having no property in them at the time of shipm the consignor is the proper party to sue;(r) and it must be observed there is nothing final and irrevocable in the nature of a bill of lading.(s that where the consignor, under such circumstances, indorses over delivers the bill of lading, the indorsee thereupon acquires a property i goods as against the consignee;(t) and a power to *transfer [ *52] property to a bonâ fide purchaser for a valuable considera though, as between the consignor and consignee the question, whethe property passed will depend upon what the real contract was ;(u) and where the right of property does pass by the indorsement, the contra not transferred so as to enable the indorsee to sue upon the bill of ladi his own name.(x)

70. Where the agent of the shipowner, instead of a bill of lading, a receipt stating the goods to be received from the consignor for the signee, it was held that the shipowner, having given his consent to trea goods in his hands as the property of a particular party, was estopped disputing that party's property in them;(y) but, in such a case, no ap priation can be complete so as to vest the property in the consignee, v the articles referred to are not on board the vessel in which they are tended to be consigned.(z)

(1) Coats v. Chaplin, 3 Q. B. 483; Dutton v. Solomonson, 3 B. & P. 582; H Sattley, 3 Camp. 528.

(n) Brandt v. Bowlby, 2 B. & Ad.

(m) Freeman v. Birch, 1 Nev. & Man. 420.k (0) Swain v. Shepherd; 1 Moo. & Rob. 223. (p) Per Park, J., Duff v. Budd, 3 B. & B. 183; 476. In both these cases the declarations were framed in case for the negligenco not in assumpsit for the breach of contract.

but see Stephenson v. Hart, 4

(1) Per Best, J., Sargent v. Morris, 3 B. & Ald. 282 ;° Evans v. Marlett, 1 Lord mond, 271.

(r) Sargent v. Morris, 3 B. & Ald. 277; and see Coxe v. Harden, 4 East, 211.

(s) Haille v. Smith, 1 B. & P. 563; Walley v. Montgomery, 3 East, 585; Co Harden, 4 East, 211; Ogle v. Atkinson, 5 Taunt. 759.P

(t) Mitchell v. Ede, 11 A. & E. 888. 903; Bruce v. Wait, 3 M. & W. 15. See Ba v. Coles, 3 Camp. 92.

(u) Judgment, Jenkyns v. Usborne, 8 Scott, N. R. 521.

(x) Thompson v. Dominy, 14 M. & W. 403; Sanders v. Vanzeller, 4 Q. B. 260.TM (y) Evans v. Nichol, 4 Scott, N. R. 43.

(z) Bryans v. Nix, 4 M. & W. 775; cited per Tindal, C. J., 4 Scott, N. R. 52.

Eng. Com. Law Reps. 43.

Id. 28. Id. 22. Id. 7. Id. 13. oId. 5. Id.

aId. 39. Id. 45.

a special proper operty is not to which is not pproval:(0)

vas no valid sale

=e; (p)

in all

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[*53]

71. If on the face of a charter-party under seal the master appears as owner, the remedy on such instrument must be in his name, though not if he be expressed to be and execute as an agent merely.(a) Where a charter-party, not under seal, entered into with the captain of a vessel, contained a clause similar to that in ordinary bills of lading, for payment of freight generally, and *without specifying to whom; it was held that the captain could not recover the amount thereof after demand by and paytermine whment to the owner. (b) But although the principal has in such cases always a al rule being right to interfere, the agent may, if this right be not exercised, sue in his own opriated shok name on the bill of lading, or on the implied assumpsit to pay freight; and reng is to A. for covery in such action will bar the owner. (c). But the latter alone can sue on the contract implied by law for payment of demurrage, in the absence of any express stipulation relating thereto; (d) and in order to give this right of action to the master, a special clause for such purpose must be inserted in the bill of lading.(e) The mortgagor and not the mortgagee of a ship is to be deemed the owner:(g) whilst the mortgagee has a distinct interest from the mortgagor to the extent primâ facie of the value mortgaged;(h) but it has been held that accruing freight nevertheless passes to the mortgagee, who takes possession before the conclusion of the voyage.(i)

ading express signor, and in time of ship be observe

11 of lading.) Endorses over Sa property in to transfer ble considerati stion, whether i

was (u) and

he bill of ladi

72. Lastly, exceptions to the general rule that the principal and not the mere agent should sue on a *contract, occur under the express pro[ *54 ] visions of different statutes; by which commissioners of roads, cort, the controporate bodies and companies chartered or otherwise,(k) are empowered to sue and may be sued by their secretary, clerk or clerks for the time being, or by one of the directors named in the deed of settlement; but this power is limited to such contracts as they are authorized to make; and the clerk, or other party empowered to sue, cannot, in such a case, resort to his public capacity to recover for work done by him in his private capacity.(1)

ill of lading Signor for the

onsent to treat

vas estopped

a case, no app consignee, hich they are

&P. 582; Har

by, 2 B. & Ad

son v. Hart, B the negligence arlett, 1 Lord

4 East, 211. East, 585; Cor

W. 15. See Barro

4 Q. B. 260.

N.R. 52. Id. 5. pldl

(a) Ante, s. 55; Horsley v. Rush, cited 7 T. R. 209.

(b) Atkinson v. Colesworth, 3 B. & C. 647;s Smith v. Plummer, 1 B. & Ald. 575. (c) Atkinson v. Colesworth, 3 B. & C. 649;* Shields v. Davis, 6 Taunt. 65;t Chitt. Jun. Plead. 93, n. (n).

(d) Evans v. Foster, 1_B. & Ad. 118;a Brouncker v. Scott, 4 Taunt. 1.

(e) Jesson v. Solly, 4 Taunt. 52.

(g) Stat. 6 Geo. 4, c. 110, s. 45.

(h) Per Parke, J., Irving v. Richardson, 2 B. & Ad. 196. See per Best, C. J., Dean v. M'Ghie, 4 Bing. 45.x

(i) Dean v. M'Ghie, 4 Bing. 45; Kerswill v. Bishop, 2 Cr. & J. 529, and cases there cited; Chinnery v. Blackburne, 1 H. Bla. 117, n.

(k) Stat. 3 Geo. 4, c. 126, s. 74. See Stat. 5 & 6 Will. 4, c. 69, s. 7; Per Bayley, J., Guthrie v. Fisk, 3 B. & C. 183;y Goody v. Penny, 11 Law Journ., N. S., Exch. 289; Skinner v. Lambert, Id. C. P. 237. See Timms v. Williams, 11 Law Journ., N. S., Q. B. 210. (1) Curling v. Johnson, 10 Bing. 89.z

'Eng. Com. Law Reps. 10. Id. 1 "Id. 20. Id. 13. Id. 10. zId. 25.

3.-PARTNERS-CORPORATIONS-COMPANIES.

General Rule as between the Parties themselves, s. 73. Exceptions to the above 74-78. When the same Person is a Partner in several Firms, s. 79. Rule a Joinder of Partners in suing a Stranger to the Firm, ss. 80-82. When the D or Trustees of a Company may sue, s. 83. Whether a nominal or a dormant should be joined, ss. 84, 85. Who should sue after a change in the Firm, ss. 86, between a corporate Body and a Member thereof, ss. 88, 89. As between a co Body and a Stranger, ss. 90, 91. How chartered and banking Companies may 92, 93.

73. First, as between themselves :-The general rule is, that be partners, whether they are so in general or for a particular transaction no account can be *taken at law ;(m) and therefore a partne [ *55] not maintain an action against his copartner for goods sold, (n) done,(o) for money had and received in connexion with a partnership action, (p) or for contribution towards a payment made under compul law ;(q) and this disability exists, provided the party seeking redress real though not the nominal or ostensible partner ;(r) but the partn must be actually formed and set agoing.(s) In accordance with the it has been held, that an attorney, who had been member of a dissolved pany and employed subsequently to its dissolution, in defending a brought against other members, could not recover from the latter his and charges so incurred, being himself liable to contribute thereto :( can a shareholder in a company recover on bills drawn by him o accepted for the directors, for this is the case of one partner drawing partnership concern, including himself;(u) but if a partner [ *56] to draw on other partners by name, and they were individua accept, he might recover against them, because, by such an accepta separate right is acknowledged to exist.(x)

74. The first exception to the above rule arises where there is an ex covenant or special agreement between partners, independent of the pa ship accounts:(y) as, where plaintiff and defendants being members

(m) Per Abbott, C. J., Bovill v. Hammond, 6 B. & C. 151, and infra. As to wh or does not constitute a partnership between the parties themselves, see the cases co Chitt. Cont. 3rd ed. 231 et seq.; Elgie v. Webster, 5 M. & W. 518.*

(n) Harvey v. Kay, 9 B. & C. 356.b

(0) Holmes v. Higgins, 1 B. & C. 74;c Milburn v. Codd, 7 B. & C. 419.a

(p) Bovill v. Hammond, 6 B. & C. 149.o

(9) Saddler v. Nixon, 5 B. & Ad. 936;f Pearson v. Skelton, 1 M. & W. 504.*

(r) Goddard v. Hodges, 1 Cr. & M. 33.

(s) Nockells v. Crosby, 3 B. & C. 814; Gale v. Leckie, 2 Stark. N. P. C. 107;b Frith, 11 Law Journ., Ñ. S., Exch. 336.

(t) Milburn v. Codd, 7 B. & C. 419.j

(u) Neale v. Turton, 4 Bing. 151; Teague v. Hubbard, 8 B. & C. 345.1

(x) Per Best, C. J., Neale v. Turton, 4 Bing. 151;m Collyer, on Partnership, 147 v. Frith, 11 Law Journ., N. S., Exch. 336.

(y) Per Parke, B., Brown v. Tapscott, 6 M. & W. 123; Per cur., Thimbletho Hardesty, 7 Mod. 116. See a form in Covenant, Partner v. Copartner, Chitt. Jun. ing, 480, and n. (c).

a Eng. Com. Law Reps. 13. Id. 17. cId. 8. dId. 14. Id. 13. Id. 27. Id. Id. 3. Id. 14. Id. 13. 'Id. 15. Id. 13. Reprinted at $2.50 per vol.

NIES.

ns to the above s, s. 79. Rule a 2. When the Dire al or a dormant Pa he Firm, ss. 86,5 As between a co Companies may

le is, that bet lar transaction

efore a partner goods sold,(n) a partnership under compuls eking redress be out the partner nce with the ab of a dissolved

defending a the latter his ute thereto wn by him on ner drawing a if a partner

ere individual

an acceptan

there is an exp dent of the pa ing members

fra. As to what see the cases coleta

.419.4

& W. 504.*

N. P. C. 107, Far

.345.1 artnership, 147; F r., Thimblethor er, Chitt. Jun. P

Id. 27. ld!! $2.50 per vol.

joint-stock company, plaintiff agreed to demise land to defendants as trus-
tees for the company, defendants covenanting to pay rent, and by a
separate deed plaintiff and the other members of the company cove-
nanted to indemnify defendants for acts done by them as trustees ; it
was held that plaintiff might sue defendants on their covenants, for the
damages so recoverable were not in the first instance to be borne out
of the common fund in which plaintiff was interested, but by the defend-
ants, who were at some future and uncertain period to be indemnified
in such manner as the society should direct.(z) In like manner if part-
ners by the deed of partnership, covenanted to advance each a certain
sum at first,(a) or if by deed on dissolving partnership an express covenant
not relating to the partnership accounts is entered into,(b) *the cov-
enantee may sue for breach of such covenant; and so he
[ *57]
for
may
breach of a covenant to account. (c) But where a partner in a house of
trade, being indebted to the partnership on his individual account, cove-
nanted with himself and the other partners for repayment of the debt; such
debt could not, it was held, be pleaded as a specialty debt, or by way of
retainer in an action against his executors, two of whom were partners in
the firm; nor could the testator himself, while living, have been sued on
this deed in a court of law, or his executor after his decease, though
strangers to the firm.(d)

75. In the cases just considered, the claim was founded on an express
covenant or agreement; but a state of circumstances may exist, in which a
debt, arising out of partnership transactions, may be due to and recoverable
by one partner from his co-partner :(e) thus money, wrongfully carried to
the partnership account, may be recovered by the partner to whom it is
due;(g) and if a final balance be struck between partners, whether they
are so generally or for one particular adventure, and whether the balance be
ascertained by the parties themselves, or through the medium of the court
or of an arbitrator, (h) an action lies for such balance by the party
*entitled to it, nor in such a case is an express promise necessary,
[ *58]
if the account stated was meant to be a final account ;(i) and this exception
extends to the case where such balances are struck monthly but kept dis-
tinct from each other and not carried forwards, so as to form a running

(z) Bedford v. Brutton, 1 Bing. N. C. 399 ;n Andrews v. Ellison, 6 Moore, 199.
(a) Venning v. Leckie, 13 East, 8; Per Lord Ellenborough, C. J.

(b) Want v. Reece, 1 Bing. 18.0

(c) Per Buller, J., Foster v. Allanson, 2 T. R. 482.

(d) De Tastet v. Shaw, 1 B. & Ald. 664. 669.

(e) Per Lord Abinger, C. B., Worrall v. Grayson, 1 M. & W. 168.*

(g) Smith v. Barrow, 2 T. R. 476.

(h) Foster v. Allanson, 2 T. R. 479; Moraira v. Levi, Id. 483, n. (a); Winter v. White, 1 B. & B. 350 ;P Wray v. Milestone, 5 M. & W. 21; Smith v. Barrow, 2 T. R. 476; Fromont v. Coupland, 2 Bing. 170; and an action lies on the decree of a colonial court for payment of a balance on partnership accounts: Henley v. Soper, 8 B. & C. 16.r (i) Wray v. Milestone, 5 M. & W. 21; Collyer v. Partnership, p. 153, 154; Rackstraw v. Imber, 2 Holt, N. P. C. 368; but see Fromont v. Coupland, 2 Bing. 172;s Foster v. Allanson, 2 T. R. 479; Cited Green v. Beesley, 2 Bing. N. C. 113.t

"Eng. Com. Law Reps. 27. Id. 8. PId. 5. Id. 9. Id. 15. Id. 9. Id. 29.

*Reprinted at $2.50 per vol.

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