[garnishee proceedings – bills of lading]

Lyons v. Saunders

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ,  23 October 1841

Source: Sydney Herald,  25 October 1841[1]

SUPREME COURT. – CIVIL SIDE.

Saturday.  October 23.

            Before the full Court in Banco.

            In this case the question was, whether certain goods, which had been consigned by a house in London to Mr. Alfred Saunders, some time back a merchant and factor, carrying on business in Sydney, could by the creditors of the latter, be attached in the hands of his garnishees. It appeared from the evidence, taken upon the trial of the cause, as read by his Honor Mr. Justice Stephen, that the bills of lading after the consignment of the goods to Saunders, were indorsed over by Saunders to one Morris, who possessed himself of the goods, and deposited them in the warehouse of Mr. Samuel Lyons.

            Mr. Foster and Mr. Windeyer, for the creditors of Alfred Saunders, contended, that the goods from their shipment in London, vested in the consignee Saunders; and that nothing had been done by the consignors in London, between the time of consignment in London, and the time of their reaching Saunders, to prevent an effectual transfer of the property to the latter; and that, consequently, the goods could be legally attached, in the hands of Saunders’s garnishees.

            Mr. Windeyer relied on the case of Lickbarrow v. Mason, in the 2nd volume of the Term Reports, which decides that a vendor of goods, may, by assignment of the bills of lading, to a bonâ fidé transferee, defeat the vendor’s right to stop them before they got to the hands of the vendee, in case of the vendee’s insolvency.

            The Solicitor-General and Mr. Broadhurst contended, that the mere consignment of goods, with the bills of lading to Saunders, as the factor of the shippers in London, could not divert the goods out of the latter, so as to make them liable to be seized by the creditors of Saunders. And that the bills of lading of the goods were no evidence of property as between a consignor and a consignee, being merely a receipt for the goods; but that evidence might at all times be taken, without reference to the bills of lading, in order to ascertain what in reality was the intention of the parties, and in whom the goods vested. The letters of instructions sent with the bills of lading, which had been received as evidence, in order to show what the intention of the consignor in London was, the learned Counsel contended, had been properly received, and Lord Mansfield had laid it down, in one of his decisions, that Courts should seek, in interpreting a law, (especially when relating to commerce,) to do substantial justice between the parties, rather than bind themselves by little technicalities. Saunders never had absolute possession of these goods; at the time of Saunders indorsing the bills of lading to Morris, he had done so not with a view of exercising proprietorship in the goods, but with the intention of protecting the consignors in London, to whom the goods really belonged, and for whom Saunders held as their agent. Bills of lading, it had been decided over and over again, were not conclusive evidence of property, as between consignor and consignee, and between any parties were merely the indicia of property, and other and all kinds of evidence might be taken opening up the mere representation on the bill of lading, and to show that the property was in others than in those to whom the goods by the bill of lading were consigned.

            Mr. Foster, in reply, said, that the whole argument of his learned friends, Messrs. a’Beckett and Broadhurst, had been founded in the assumption, that Saunders, the consignee of the goods, had never been more than the agent of the consignors in England; and that the letters sent with the bills of lading, were to be conclusive as to the intention of the party sending out the goods. He (Mr. Foster) contended that such letters never could be received as such evidence, as otherwise nothing could be easier at any time, than for consignors of goods to send letters containing any thing they chose to insert in them, in order to prevent accidents that might arise from creditors of the consigness attempting to appropriate the goods. The bills of lading from J. and A. Saunders in London were addressed to Alfred Saunders or his assigns and if they were prima facie evidence of the property in the goods being in Saunders, and the letters alluded to could not be admitted to contradict such a prima facie case. Saunders acting upon his dominion over the goods, as owner of them, and according to the terms of the bills of lading, did, (what if he were not owner, he could not do.) assigned the property in the goods over to Morris, by indorsing the bills of lading to him. Saunders had never renounced property in the goods – he had never placed them in a warehouse, on the account of the shippers in London, but on the contrary had dealt by them all along, as his own.

            The Chief Justice, The question for the consideration of their Honors was, whether at the time of the delivery of the writ of foreign attachment, the property of the goods in question were in Alfred Saunders. The object of the foreign attachment act was one of a purely equitable character, and founded on the custom of London. In the present case the bills of lading were forwarded under cover of a letter, which, if their Honors might look at for the purposes of the case would at once settle the matter, by showing Alfred Saunders to be no more than a factor for the merchant in London. The letter however contained matter which should be presented to the Court on oath, and consequently must be laid out of consideration on the present occasion. Now, it was clear, setting the letter on one side, that the plaintiff had a prima facie case, founded on the bill of lading to Alfred Saunders. But there were other circumstances which rebutted the case: the bills of lading having been consigned over by Alfred Saunders before the issuing of the writ of foreign attachment, these goods were vested in Morris, by that act; and, consequently, there was no property for the writ of foreign attachment to touch, and judgment must pass for the defendant.

Mr. Justice Burton entirely agreed with his learned brother, and only wondered that so long an argument could have been made out of so short a case.

            Mr. Justice Stephen said, he could not exactly agree with his learned brothers in the judgments they had delivered. The bills of lading to Alfred Saunders prima facie vested the property in him; he indorses to Morris, who in his evidence had declared that the indorsement to him was without consideration, and that he held merely as agent of another, and had no interest at all in the goods. If therefore Morris held as agent, whose agent was he? clearly, merely the agent of Saunders, and as a prima facie case of proprietorship in the goods had been made out in his favour, Morris’ holding of the goods, was the holding of Saunders, and consequently the property could be acted on by the writ of foreign attachment.

            Mr. Justice Burton stated, that he was sorry, (now he found there was a difference of opinion between him and his learned brother Stephen,) that he Mr. Justice Burton had not delivered the grounds of his judgment.

            Another case, containing the same subject matter, and involving very nearly the same points of difference, and at the conclusion of the proceeding, the learned gentlemen fell into a general argument, respecting the parties for whom they respectively appeared, which seemed not quite so easily to be settled, as some of the points already decided.

Notes