Ezell v. English , 6 Port. 311 ( 1838 )

ORMOND, J.

In this case, the same question of law arises as to the admissibility of testimony to explain the import of the term “ dangers of the River” in a bill of lading, which arose in the case of Sampson & Lindsay vs. A. H. Gazzam, decided at the last term of this court.^* The record also discloses that the defendant below proved, that the plaintiff in the court below, denied that he had any interest whatever in the suit; that he was not the owner of any cotton burned on the boat; and that the suit was commenced without his consent. Upon this evidence the court was asked to instruct the jury “that if they believed from the evidence that the plaintiff Was not the owner of the cotton, and had never accepted the consignment, and that the same belonged to John Low or John Gindraf & Co., in that event the. present plaintiff having no interest in the cause of action, could not recover.” The court refused to give this charge, and charged the jury “that if they believed that plaintiff, English, was a factor in Mobile, and the cotton was shipped to him by John Low, in that event the said Low was entitled to use his name in conducting the suit for his benefit, although the said English might have no interest in the same; and that he could not, by any disclaimer of interest, deprive the said Low of this right to institute said suit.” To the instruction thus refused, and to the one given, an exception was taken, and the matters of law theron arising, are now assigned as error.

The instruction of the court cannot be maintained.

It is true that a bill of lading vests in the consignee the'legal title in the goods shipped; but the title thus transferred, may be revested in the owner; and this must have been the fact, if the consignee had no interest in the subject consigned. To this effect is the decision of this court at the last term, in the case oí' Wm. Jones, Jr. vs. Sims & Scott.^†

The remaining points arising in this case have all been decided in favor of the plaintiff in error, in the case first mentioned.

The judgment must be reversed, and the cause remanded.

* Page 123.

† Page 138.