Ryberg v. Snell , 2 Wash. C. C. 294 ( 1808 )

WASHINGTON, Circuit Justice

(PETERS, District Judge, absent),

stopped Hopkinson, who was to have argued for the defendant, and observed, that the case was too plain to justify the delay of a further discussion. The principles which must govern the case are so clear, that there cannot be two opinions respecting them. The suit is brought by the payee against the drawer; and consequently, the consideration for which the bill was drawn, may be inquired into. If Echart’s debt was not properly chargeable to Gardner & Co., then the bill was drawn without consideration; because, striking out that item, the balance was in favour of Gardner & Co. The legal result of all this would be, that the plaintiffs cannot recover. The endorsement of a bill of lading, transfers the legal right in the property to the assignee, and therefore all the right of Echart in this cargo passed to Gardner & Co., on the 26th of May, by the assignment made on that day. Had the cargo got into the actual possession of the plaintiffs before the assignment, they would have had a right, in virtue of their lien, to satisfy their debt against Echart, out of the proceeds. But this lien can never arise, until such actual possession is obtained; and at the time it attaches, the property must belong to the principal, and it continues no longer than the actual possession continues. This was not a consignment by a debtor to his creditor, for the purpose of discharging a debt; but from a principal to bis factor, for account, and at the risk of the principal. The possession of the plaintiffs ■was the possession of Gardner & Co., who had acquired a- legal title to the property, long before the goods arrived; and of course they could have no lien, on account of a debt due from Echart The bill, then, is drawn without consideration, and your verdict should be for the ■ defendant

The plaintiffs suffered a nonsuit.