2 U.S. 180 | SCOTUS | 1792
WOOD
versus
ROACH.
Supreme Court of United States.
Moylan, for the defendant.
For the plaintiff, Serjeant and Todd.
M`KEAN, Chief Justice:
This is not the best evidence; and, therefore, it cannot be admitted.
BRADFORD, Justice:
The paper offered in evidence is not a bill of lading; but it is offered as a copy, and to prove that a bill of lading, of the same tenor and date, was executed. If the instrument itself were produced, proof of the signature would be *181 prima facie evidence that it was given when it bears date; but when the instrument does not appear, it cannot be supplied by the oath of the defendant. The evidence was accordingly rejected.
Other proof of the bill of lading being received, together with evidence that part of the goods was shipped, and part not; and some, though doubtful, evidence, that the consignment was in favor of a bona fide creditor, and intended as a remittance to him.
SHIPPEN, Justice.[*]
The facts which the Jury must decide, are 1st. Whether a bill of lading was signed as the defendants *182 contend. 2d. Whether the goods were consigned for the use of the consignee, or consignor. 3d. Whether a real debt was due from the consignor to the consignee. These being determined, the law is clear, that a consignor can stop the goods in transitu only in two cases, 1st. Where he has received no consideration; And, 2d. Where the consignee is insolvent. If the goods were not vested in the consignee, the defence, arising from the demand of freight and indemnification, is not sustained. The captain has received his freight in Ireland, and received an indemnification from the consignee. He might have pleaded this; and as he has not done so, the matter is left open to equitable considerations. The freight, in strictness, is due when the goods are laden and bills signed. This is a rule founded on mercantile principles, and the inconveniences of the opposite doctrine. The cause, therefore, in the opinion of the Court, depends principally, upon this fact, whether, at the time of the attachment, the property of the goods was vested in the consignor, or consignee.
Verdict for the plaintiff.
NOTES
[*] The CHIEF JUSTICE, being absent.
