Now, the words of the 1st section of that Act are, that "every consignee of goods named in a bill of lading, and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and 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." The consignor remains always liable for the freight; and, because the statute *848] *says that every consignee or assignee shall by reason of the consignment or endorsement have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of the goods as if the contract contained in the bill of lading had been made with him, the contention is that the consignee or assignee shall always remain liable, like the consignor, although he has parted with all interest and property in the goods by assigning the bill of lading to a third party before the arrival of the goods. The consequences which this would lead to are so monstrous, so manifestly unjust, that I should pause before I consented to adopt this construction of the Act of Parliament. The person who received the goods under the bill of lading was always considered liable for the freight; but that was not by virtue of an original liability as a contracting party, but on a contract implied from his acceptance of the goods. Looking at the whole statute, it seems to me that the obvious meaning is, that the assignee who receives the cargo shall have all the rights and bear all the liabilities of a contracting party; but that, if he passes on the bill of lading by endorsement to another, he passes on all the rights and liabilities which the bill of lading carries with it. The preamble of the statute leads me to that conclusion: it states that, "whereas, by the custom of merchants, a bill of lading of goods being transferrable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property." Therefore, the statute in effect in s. 1 enacts, that, if the consignor assigns the bill of lading, all his rights in respect of the goods shall pass with the property. When the assignee assigns over to another, *does he retain all the rights and liabilities of the original con*849] tracting party? He clearly has no right to the cargo. Is he, then, by the endorsement, to pass on his rights to the endorsee, and to retain all his liabilities in respect of the goods? Such a construction might be very convenient for the shipowner, but it would be clearly repugnant to one's notions of justice. The preamble indicates the expediency of the consignor's rights in respect of the contract contained in the bill of lading passing by the endorsement of it; and the 1st section, in order to carry out that intention, provides for the passing by the endorsement of the rights and liabilities which ought to attach to the right of property in the goods. Whilst, therefore, he remains the holder of the bill of lading, the assignee is clothed with all the rights and liabilities which attach to the contract: but, when he parts with it by endorsement to a third person, he passes on to such third party all the rights which he himself had, and all the liabilities also. It was further contended by Mr. Lewers that the

defendants were liable at common law, and that, inasmuch as the assignees on assigning over received the price of the goods, the receipt of the goods by their assignees was a constructive receipt of the goods by themselves. The origin of the common law liability of the assignee of the bill of lading was this,-the master had a lien upon the cargo, and the receipt of the goods by the consignee or assignee was assumed to be made under an implied bargain, that, if the master would forego his lien, he, the assignee, would pay freight and demurrage. That, however, cannot in the smallest degree apply to one who does not receive the goods.

WILLIAMS, J.-I am of the same opinion. The words of the 1st [*850 section, taken literally, are undoubtedly very general. But, looking at the preamble, and at the general scope and intention. of the statute, I can entertain no doubt that the view presented by my Lord is the true one. The general scope of the Act is, that, whereas before, by the custom of merchants, the property in the goods passed by the endorsement and delivery of the bill of lading, now all the rights and liabilities of the consignor under the contract shall pass with the property, that is, that, where the right of property leaves the party, the rights and liabilities under the contract shall leave him also. The owner can sue no one but him to whom the property has passed.

The rest of the Court concurring,

Judgment for the defendant.

MEARS v. THE LONDON AND SOUTH-WESTERN RAILWAY COMPANY. Feb. 23.

The owner of a chattel, e. g., a barge, which is out on hire for an unexpired term, may maintain an action against a third person for a permanent injury thereto.

THE declaration stated that the plaintiff, before and at the time of the committing of the grievance thereinafter mentioned, was the owner of a certain barge, which said barge was before then let to hire to one John Scott Russell for a certain time then unexpired, and the same was then in the possession of the said John Scott Russell by virtue of the said letting, the reversion therein then belonging to the plaintiff'; that the defendants were by their servants in that behalf engaged in raising a boiler from and out of the said barge; yet that the defend ants were guilty of such negligence, carelessness, and improper conduct in and *about the raising and attempting to raise the said boiler out of the said barge, and used such improper and insufficient [*851 materials for that purpose, that, by reason thereof, the said boiler fell into the said barge, and greatly damaged and injured the same; whereby the plaintiff had been deprived of the use of his said barge for a long space of time, and had lost divers gains and profits which he would have acquired therefrom, and was greatly injured in his reversionary interest therein, and would be put to great expense in and about repairing the damage so done to the said barge.

To this declaration the defendants demurred, on the ground that

"the facts stated in the declaration show no cause of action against the defendants." Joinder.

Milward, in support of the demurrer.(a)-No precedent is to be found of an action by the reversioner for an injury to a chattel whilst out of his possession. The barge being at the time of the accident in the possession of Scott Russell, who was apparently the owner, and who was entitled to the possession for an unexpired term, the consequence of holding that the plaintiff may sue will be that the defend*852] ants may have two actions brought against them for the same *damages, to neither of which would a judgment in the other be an answer. There was no privity between the plaintiff and the defendants in respect of which the latter could be guilty of negligence to the former. It may be that the servants of Scott Russell represented the weight of the article to be lifted to be 10 tons,-a weight for which the defendants' crane was sufficient,-when in fact the weight was 15 tons; and so the accident arose from no default on the defendants' part. If the action were brought by Scott Russell, the person with whom the defendants contracted, this would be a good answer. The case falls within the principle of Blakemore v. The Bristol and Exeter Railway Company, 8 Ellis & B. 1035 (E. C. L. R. vol. 92). [ERLE, C. J.-I must confess I do not see how that case bears upon the present.] The plaintiff may have a remedy against Scott Russell. [WILLIAMS, J.-The authorities upon this subject are considered in Tancred v. Allgood, 4 Hurlst. & N. 438. The first count of the declaration there stated that the plaintiff was the owner of goods which had been let to hire to one T. for a term, and that the defendant sold the goods and dispersed them so as to prevent the same being followed and found, whereby the plaintiff was injured in her reversionary estate. The second count was similar to the first, except that it alleged that the goods were let to T. "to be used in a certain house and not otherwise or elsewhere, that T. had the use of the goods subject to the expiration of the term, and subject to the determination of the term by the violation of the terms thereof." The defendant pleaded that he seized and took and sold the goods, not in market overt, but as sheriff under a writ of fi. fa. against T., and that the plaintiff had not sustained and would not sustain any damage by reason of the premises; and it was held, that, as the damages sustained by the plaintiff were the foundation of the action, the pleas *853] were an answer to the action. In giving judgment, Pollock, C. B., says: "Probably any temporary damage done while the plaintiff's possession was suspended by her contract with another person, is not the foundation of an action." Nobody suggested a doubt that the action would have lain for a permanent injury to the plaintiff's reversionary interest in the goods.] In that case there was a sale out

(a) The points marked for argument on the part of the defendants were as follows:"That, if the declaration be in contract, it is bad on the ground of there being no privity between the plaintiff and the defendants, and that it appears from the declaration that Mr. Scott Russell, if any one, is the proper person to sue:

"And that, if the declaration be in tort, it is bad for not showing a permanent injury to the reversion, and that it is consistent with the declaration that the damage done might have been and ought to have been repaired by Scott Russell before redelivery to the plaintiff; and also that a person not in possession of a chattel cannot sue, the remedy being in the hands of the person in possession."

and out. [ERLE, C. J.-The purchaser buys at his peril.] At the utmost, here the declaration discloses only a temporary damage. The subject was again discussed in the Court of Exchequer, in The Lancashire Wagon Company v. Fitzhugh, 6 IIurlst. & N. 502. The declaration does not necessarily show any permanent damage: non constat that Scott Russell would not have repaired the barge. At all events, there was no contract between the defendants and the plaintiff, nor any duty by law cast upon the former to repair.

Petersdorf, Serjt., contrà, was not called upon.(a)

ERLE, C. J.-This is an action brought by the owner of a barge to recover damages for injury done to it by the negligence of the defendants' servants whilst it was out on hire to a third person. The question is, whether the owner of the barge has a right to maintain an action for that injury. In my opinion he has that right, the mere temporary outstanding interest in the hirer of the barge amounting to nothing. That *trover will not lie for the conversion of a [*854 chattel out on loan, is clear: Gordon v. Harper, 7 T. R. 9. But, in Tancred v. Allgood, 4 Hurlst. & N. 438, it was by implication held that an action for a permanent injury done to a chattel while the owner's right to the possession is suspended, may be maintained. I do not see the bearing of that melancholy case of Blakemore v. The Bristol and Exeter Railway Company upon this. It may, however, be observed, that Scott Russell, the hirer of the barge, having taken it to the defendants' premises for the purpose of being loaded by their servants, the defendants cannot be said to be quite strangers to the plaintiff: whereas, in Blakemore v. The Bristol and Exeter Railway Company, the injured person was a helper of a helper, and one stage removed from the parties contracted with.

WILLIAMS, J.-I am of the same opinion. It is alleged in the declaration and admitted by the demurrer, that the wrongful act of the defendants' servants has caused a permanent injury to the chattel of the plaintiff. It is true that the barge at the time was let out to Scott Russell for an unexpired term. But subject to Scott Russell's temporary interest in it, the barge still remained the property of the plaintiff: and I see no reason why the plaintiff should not maintain the action. It is fully established, that, in the case of a bailment not for reward, either the bailor or the bailee may bring an action for an injury to the thing bailed; but, in the case of a hiring, the owner cannot bring trover, because he has temporarily parted with the possession. It seems to me, however, to be clear, that, though the owner cannot bring an action where there has been no permanent injury to the chattel, it has never been doubted, that, where there is a *permanent injury, the owner may maintain an action against the wrongful act has caused that injury.

The rest of the Court concurring,

person whose

[*855

Judgment for the plaintiff.

(a) The point marked for argument on the part of the plaintiff was as follows:"That the declaration shows a good cause of action against the Company in consequence of the plaintiff's reversionary interest in the barge being injured through the negligence and improper conduct of the defendants' servants."

BROWN v. TIBBITS. Feb. 11.

An attorney may set off a claim for costs, notwithstanding no signed bill has been delivered. To a count on an agreement to indemnify the plaintiff against all costs which the plaintiff might be obliged to pay as defendant in a certain suit, or in consequence thereof, alleging that the plaintiff, as such defendant in that suit, was compelled to pay in the said suit and in consequence thereof a certain sum as and for costs,-the defendant pleaded, " as to so much of the count as relates to the plaintiff's claim in respect of the payment by him of the said sum of money as and for costs in the said suit," a set-off:-Held, a good plea.

THE first count of the declaration stated that the defendant, by a certain indenture between the defendant of the one part and the plaintiff of the other part, covenanted with the plaintiff that he would pay the plaintiff the sum of 50l., together with interest for the same after the rate of 57. per cent. per annum, on the 10th of January, 1859; yet the defendant has not paid the said sum of 50%, or any part thereof.

The second count stated that the defendant, by a certain other indenture between the defendant of the one part and the plaintiff of the other part, covenanted with the plaintiff that he would pay the plaintiff another sum of 501., with interest for the same after the rate of 107. per cent. per annum, on the 10th of January, 1859; yet the defendant had not paid the last-mentioned sum of 50%, or any part thereof.

The third count stated, that the defendant being an attorney and solicitor, in consideration that the (now) plaintiff at the request of the defendant, would employ the defendant as his attorney and solicitor in and about a certain suit in which one Matthew Harrison was the *856] plaintiff and the (now) plaintiff was the *defendant, the defendant promised the (now) plaintiff to indemnify the (now) plaintiff against all costs which he the (now) plaintiff might as such defendant in the said suit be obliged to pay in the said suit or in con sequence thereof, the same being conducted by the defendant as such attorney of the (now) plaintiff as aforesaid: that the (now) plaintiff, relying on the defendant's said promise, employed him accordingly, and the defendant as such attorney, by virtue of such employment, acted as the (now) plaintiff's attorney in the said suit, and conducted such suit to its termination; and that the (now) plaintiff as such defendant in the said suit as aforesaid was compelled to pay in the said suit, and in consequence thereof, as and for costs, to wit, to the said Matthew Harrison, as the plaintiff therein, a large sum, to wit, 1317. 18s. 10d.; and, although all things had happened necessary to entitle the (now) plaintiff to have the defendant's said promise fulfilled, yet the defendant had broken the same, and had not indemnified the (now) plaintiff according to his said promise, or paid the (now) plaintiff the said sum of 1317. 18s. 10d., or any part thereof: Claim, 3007.

The defendant pleaded,-first, to the first and second counts of the declaration, and also to so much of the third count as related to the plaintiff's claim in respect of the payment by him of the said sum of money as and for costs in the said suit, that the plaintiff, before and at the time of the commencement of this suit, was, and thence hitherto had been and still now is, indebted to the defendant in an amount equal to so much of the said claim of the plaintiff as that plea was