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that after he had received the said bill of lading as aforesaid he indorsed and delivered the same to the said J. Edwards: that before the shipment of the said goods as aforesaid, the plaintiffs then being the charterers of the said ship as aforesaid, did, at the request of the said J. Edwards, make to him an advance of 4007., on the undertaking by the said J. Edwards, that he the said J. Edwards, being about to ship certain goods in the said ship, would indorse and make over to the plaintiffs a bill of lading for the said goods wherein the freight should be made payable in this country, and that the said freight should be paid by the said J. Edwards, and the said bill of lading should then be held by the plaintiffs as security for the said advance: that the shipment of the said goods in the said bill of lading mentioned was made at Liverpool in pursuance of the said agreement and undertaking and that after the said shipment, and before the said freight became payable according to the terms of the said bill of lading, and after the defendant had indorsed the said bill of lading to the said J. Edwards as aforesaid, the said J. Edwards indorsed the said bill of lading to the plaintiffs in pursuance of the agreement and undertaking aforesaid and as security for the said advance and a still further advance then made by them upon the same security; by reason of which said indorsements the property in the said goods passed to and vested in the plaintiffs, who continued the owners of the said goods from thence until and at the time of the said freight becoming payable. And the defendant further saith that the said bill of lading was so signed and delivered to him as aforesaid after the passing of the statute made and passed in the nineteenth year of the reign of Queen Victoria, intituled "An Act to amend the Laws relating to Bills of Lading;" and that the said freight claimed by the plaintiffs is the freight mentioned in the said bill of lading, and that the same accrued

due under and by virtue of the said bill of lading and not otherwise.

Replication. That the said second advance in the plea mentioned was made upon the estimate between the plaintiffs and the said J. Edwards of the value of the said goods as freight paid, and that the arrangement as to the shipment of the said goods and the terms for the carriage of the same was made only between the defendant and the agents of the plaintiffs at Liverpool, the said agents of the plaintiffs having then only a general authority from the plaintiffs to act in regard to the agreeing about the shipment of goods for freight; and the plaintiffs were not aware of the employment of the defendant by the said J. Edwards as his agent in the said shipment before the receipt by the plaintiffs of the indorsed bill of lading.

Demurrer and joinder therein.

Kemplay, in support of the demurrer.-The plea affords a good answer to the action, and the replication is not answer to the plea. Before the shipment of the goods the plaintiffs made an advance to Edwards of 4007., upon his undertaking that, being about to ship certain goods, he would indorse to the plaintiffs, as a security, a bill of lading wherein the freight should be payable in this country by Edwards. Edwards employed the defendant to ship the goods, and the master signed a bill of lading, by which it appeared that the defendant shipped the goods "as agent." A second advance was made by the plaintiffs to Edwards, and he indorsed the bill of lading to them as a security for both advances. Now, assuming that the defendant, not having disclosed his principal, would primâ facie be liable to pay the freight, yet Edwards was also liable and would be bound to indemnify the defendant; and the plaintiffs, when the bill of lading was indorsed to them, had notice that

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the defendant was agent only, and they made the advances to Edwards upon an undertaking that the freight should be paid by him. [Martin, B.-If a person contracts with another to pay him a sum of money on a certain day, is it any answer to say that the latter made a bargain the day before with a third person to pay the money? A man who ships goods under a bill of lading is absolutely liable to pay the freight. The plaintiffs made the advances on the undertaking that the goods were to be delivered to them free of freight. Bramwell, B.-Edwards undertook to indorse the bill of lading to the plaintiffs as a security for the advances: the bill of lading was given to the defendant, and before he indorsed it to Edwards he ought to have demanded the freight.] It is inequitable to call on the agent to pay when the plaintiffs have the undertaking of the principal, who is bound to indemnify the agent. [Wilde, B.-The defendant having made an express contract to pay, why should not the plaintiffs have the benefit of that also?] Moreover, the bill of lading was indorsed to the plaintiffs before the freight became payable, and it is submitted that, by the 18 & 19 Vict. c. 111, the defendant is not liable. By the 1st section of that Act, "every consignee of goods named in a bill of lading, and every indorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect such goods, as if the contract contained in the bill of lading had been made with himself." The defendant's liability, if any, arises from the bill of lading, which was indorsed by Edwards, the legal owner of the goods, to the plaintiffs, and by force of the statute the property in the goods then vested in the plaintiffs, and they became subject to the same rights and liabilities as if the contract had been origi

of

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nally made by them. [Martin, B.-That is not true in every sense: the property docs not vest in the way it would by bargain and sale.] The effect of the statute is to render the transferee of a bill of lading liable for freight, just as if the contract had been made with himself. Therefore the plaintiffs, being liable for the freight, must be considered as having paid themselves. [Wilde, B.-The meaning of the legislature is that, if a person thinks fit to take a transfer of a bill of lading, he shall be responsible for the freight, but in return he gets a right to sue the owner of the goods.] The legislature, in effect, says that, if a person chooses to become the owner of goods at sea under a contract of carriage, he shall stand in the same situation as the shipper. If the bill of lading had been indorsed to a third person the plaintiffs might have sued him, and they are now in this position. [Martin, B.-The statute has no application to this case. It says that every indorsee of a bill of lading "shall be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." So that the case is the same as if the contract had been made with the person to whom the bill of lading is assigned; but how can a man make a contract with himself?] The indorsement of the bill of lading transferred to the plaintiffs the liability of the defendant to pay the freight. [Wilde, B.-The 2nd section says, "Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsce, or of his receipt of the goods by reason or in consequence of such consignment or indorsement." The statute gives a right to sue the indorsee, but does not extinguish the right to sue the original shipper of the goods.]

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Broun, contrà.-The plea is bad, for the facts stated in it do not shew any discharge of the defendant's contract. Upon the face of the bill of lading the defendant is liable to pay the freight, and the plaintiffs made the advances upon the additional security of Edwards and upon an estimate of the value of the goods as if the freight had been paid.—(He was then stopped by the Court.)

POLLOCK, C. B.-We are all of opinion that the plaintiffs are entitled to judgment. It is contended that the defendant is not liable, on two grounds. The case has been ingeniously argued, but all that the statute says is this-that if a person becomes indorsee of a bill of lading, by which the property in the goods passes to him, he shall take upon himself the contract of the shipper. The indorsee of the bill of lading may be sued under the statute, because by taking the goods he also takes the liability to pay the freight. The statute creates a new liability, but it does not exonerate the person who has entered into an express contract. The argument of Mr. Kemplay amounts to thisthe plaintiffs took an indorsement of the bill of lading: if the indorsement had been made to a third person the plaintiffs might have sued him; consequently they are entitled to sue themselves and pay themselves, and therefore we ought to consider that they have been paid and that the defendant is no longer liable. I can conceive a state of things of which that might be the result; but it is not so here, especially as the replication shews that the second advance was made upon the faith of the freight being paid.

MARTIN, B.-I also think that the plea is bad. The transaction disclosed by the plea will be better understood by taking the latter part of the plea first. Edwards, being about to ship certain goods on board a vessel of the plain