case she and baxter assignee of the estate of John to lift a bankrupt  plaintiff Prescot dawson julian and Le blon TH0MAS elder and young and to lift  defendant February the d where agent abroad be in disburse for their principal  and upon be doubIful of his circumstance make bill of lade to their own order  endorse in blank notwithstanding these bill of lade come to the principal hand  yet if the agent partner in London write they word that their principal be  become bankrupt and desire they to send the bill of lade and a order to the  captain to deliver the good to he he may retain they for himself and company  against the assignee under the commission till pay and reimburse so much as  the partnership be in advance the plaintiff make the follow ease by their bill  that to lift in consign to Ragueneau and company reside at Leghorn germane  serges amount to pound S beside the insurance make by to lift with direction  to the partner to sell the good as soon as they can and also consign to they  other good to the value of pound S d the partner not be able to sell all the  good to lift give order to barter they for Italian good and the copartner  agree that part of the good shall be dispose of for those of the growth of  Italy to half the value of the Italian good and the other to be pay for in  money and afterward by letter of the that of November they advice to lift  thereof and that they shall load the good which be silk on board the prince  Edward and enclose a bill of lade for bale to lift in receive the bill of lade  endorse by the say partner but intend for the use of to lift only to lift in  borrow of the defendant Julian and Le blon pound and by way of security assign  the bill of lade for the bale to lift be also indebt to the other defendant  the Thomas in several sum for secure thereof he assign invoice for five bale  and three bale and deliver the same to the Thomas soon after a commission of  bankruptcy issue against to lift and the plaintiff be choose assignee and  receive a letter atkins direct to to lift from Ragueneau and company mention  that they have buy four bale of silk more for he and have give in payment for  it four bale of serges and send he the invoice of dollar which they have place  to Tollets debt but the bill of lade be not send Reg lib b f on the that of  February Dawson the captain of the mermaid on board of who ship be the bale of  silk arrive and these good be consign to to lift and atkins er p be ship at  the risk and in the name of to lift the defendant Julian and Le blon and the  Thomas show Dawson the bill of lade and demand the good but he refuse to  deliver they and Prescot partner of Ragueneau who live in London on Tollets be  a bankrupt write to his partner desire they to send the bill of lade that  Dawson have sign and leave with they which they send to he accord and at the  same time send a order to Dawson to deliver the good to Prescot who receive  the same who set up a right thereto but the plaintiff insist that the bill of  lade though make to the order of Ragueneau and company yet be endorse by they  in blank and send to to lift it do accord to the custom of merchant vest the  property in to lift and further that it be the custom of merchant at Le blon  to send bill here fill up as aforesaid in order to conceal the person name to  who the good be send that the public may not know the person in England with  who such house deal or to who the property belong that at the instant the good  be load on board the prince Edward the property vest in to lift who be then in  good circumstance and the reason of the master of the ship sign several bill  of lade be for fear of lose one that it be the custom of merchant to borrow  money upon bill of lade which have be look upon as a good security that to  lift be make debtor for the good in Ragueneau and company book and the  delivery to Dawson be for the use of to lift who loss it will have be if lose  in the voyage that the defendant Le blon and the Thomas notwithstanding they  have a assignment of the bill from to lift yet do admit they be only pledge to  they for what be owe on the sum they have lend and upon payment of that and  the expense of the insurance they be Willing the good shall be deliver to the  plaintiff who pray by their bill that the good bring by Dawson and deliver to  Prescot may be sell and after pay what shall appear to be due to Le blon and  the Thomas that the remainder may be pay to plaintiff for the benefit of  Tollets creditor and also that the bill of lade for the four bale send in the  mermaid may be deliver to the plaintiff the defendant Prescot insist that the  bill of lade in the prince Edward be not to deliver the good to to lift but to  the order of Ragueneau and company and that it be usual among merchant to  require the master of the ship by which the good atkins be consign to  subscribe his name to three part of every bill of lade and that there be a  clause in each that one be accomplish the other two shall be void and say on  the delivery of the good he write a receipt for they by endorsement of the  bill of lade transmit to he and deliver the same to Dawson that it be usual  among merchant and factor at Leghorn when they ship good for person who have  not remit they the money beforehand or for which they draw bill of exchange or  where they run a risk not to fill up the bill of lade direct to the order of  such person but to the order of the shippers or factor so that if any accident  happen to their principal before the delivery of the good they may get back  the same and thereby reimburse themselves and that there be the great reason  for such precaution in regard Ragueneau and company have and be to draw on to  lift for pound S d for money advance on the barter of the woollen good for  silk that be inform to lift have stop payment and be in danger of fail and  that the silk be about to be ship by the partner at Leghorn for the account of  to lift he resolve to prevent the silk fall into Tollets hand till  satisfaction be make and thereupon write b that the next post to his partner  who in their answer send the two part of the bill of lade to be deliver to  Dawson and a order for he to deliver the silk to Prescot accord to the bill of  lade in preference to any other claim that his partner at Leghorn have notice  of Tollets circumstance soon after ship the four bale of good apply to the  person with who they make the barter and prevail with he to relinquish the  bargain and they take the serges back again and the silk to their own account  and pay for they in money and then send they to the defendant Prescot in  London who insist he have a right to claim the same for himself and his  partner the bill as to these four bale be dismiss Reg lib b by his answer he  say he be Willing to sell the silk he receive of Dawson as the court shall  direct but submit that the delivery of the silk to Dawson be not a delivery to  the use of to lift atkins er p the defendant the pawnees insist that Ragueneau  and company endorsement on the bill of lade be accord to the usage of merchant  as much a transfer of all their right to to lift as if the same have be sell  in a open exchange and that the subsequent assignment make by to lift to they  vest the property of the good in the defendant for repayment of the money so  lend Lord chancellor this be as harsh a demand against Ragueneau and company  as can possible come into a court of equity to insist on take their good for  which they have pay half the price without reimburse they what they be out of  pocket and then tell they that they shall come in as creditor perhaps for half  a crown in the pound only under the commission of bankruptcy against to lift  notwithstanding they have the good now in their own custody and a specific lie  upon they and to be sure in such a case a court of equity will lie hold on any  thing to save this advantage to Prescot and the partnership atkins if to lift  the bankrupt have gain any legal property in the silk it be go by his  assignment or pledge or pawn to the defendant Le blon c call it which you will  and if it have not be for this circumstance of their be so pledge the assignee  bill ought to have be dismiss with cost but this court be oblige to retain  bill for redemption because the party have no other way of come at justice  there be twelve parcel or bale for which bill of lade be send and four parcel  or bale for which no bill of lade be send and therefore I will deliver the  case from the latter as there can be no pretence that to lift have a legal  property in these for a promise to send a bill of lade if it amount to any  thing will be only to be carry into execution in equity as to the twelve bale  they will fall under a different consideration Ragueneau and company have  advance a moiety of the price for the silk there can be no question while the  good remain in their hand but they be liable to this debt see ante ex part  Dumas note and to lift can never have compel they to deliver the good without  pay the money so advance if a factor sell good for a principal he may bring a  action in his own name or a action may be bring in the name of the principal  against the vendee and the factor may make himself a witness on the other hand  a vendor of good to a factor for the use of his principal may maintain a  action against the principal for good sell and the factor may be make a  witness for the vendor it have be often so settle at guildhall therefore while  the good remain in the hand of Ragueneau and company no doubt but they have a  lie upon they for the moiety of the price advance by they and he who will have  equity must do equity by reimburse they first before he can entitle himself to  the sing and thus it will have stand if there have be no consignment which it  be insist make a considerable alteration and vest the property in to lift I  admit the case mention by the plaintiff counsel of inland dealer in England  that if good be deliver to a carrier or hoiman to be deliver to a and the good  be lose by the carrier or hoiman the consignee can only bring the action which  show the property to be in he and it be the same where good be deliver to a  master of a vessel but suppose such good be actual deliver to a carrier to be  deliver to a and while the carrier be upon the road and before actual delivery  to a by the carrier the consignor hear atkins a his consignee be likely to  become a bankrupt or be actual one and countermand the delivery and get they  back into his own possession again I be of opinion that no action of trover  will lie for the assignee of a because the good while they be in passage may  be so countermand Birkit v Jenkins cite Cowp Ellis hunt durn and east in the  present case there be no consignment to any particular person but bill of lade  endorse in blank to the order of consignor and therefore rather in the nature  of a authority than anything more promissory note and billsof exchange be  frequent endorse in this manner pray pay the money to my use in order to  prevent their be fill up with such a endorsement as passes the interest Mr  lutwych who be a experience practiser in this court always do so in his bill  of exchange the question of law be whether before the actual delivery of the  good it be not atkins er p in the power of the consignor to countermand it  this must depend upon the custom of merchant and here indeed there be a  contrariety of evidence for the defendant Prescot the evidence be that if  agent be in disburse for the good buy for their principal they general make  bill of lade to their own order endorse in blank especial where they be in  doubt of the principal circumstance that they may by this mean have it in  their power if they shall see occasion to vary the consignment the evidence  for the plaintiff be that endorse bill of lade in blank do not retain the  property in the consignor any more than if they be endorse to the consignee by  name but be do only to conceal the amount of the quantity of the good consign  it be detrimental to the consignee that it shall be know but then the proof on  the part of the plaintiff do not speak as to the particular circumstance where  the agent suspect their principal to be fail the question be on which sideathe  evidence be strong the strong proof be certain on the part of the defendant  and there be no occasion to send it to law on this account though good be even  deliver to the principal can never see any substantial reason why the original  proprietor who never receive a farthing shall be oblige to quit all claim to  they and come in as a creditor only for a shilling perhaps in the pound unless  the law go upon the general credit the bankrupt have gain by have they in his  custody but while good remain in the hand of the original proprietor see no  reason why he shall not be say to have a lie upon they till he be pay and  reimburse what he so advance and therefore I be of opinion the defendant  Prescot have a right to retain they for himself and company it have be object  that in case of any loss or accident to the good it be Tollets risk only but  suppose any damage have happen to these good during the voyage and in passage  there have be a alteration of the atkins consignment the loss clear must have  be bear by the consignor consider this case in the next place under the act of  parliament of the Geo upon the clause of mutual credit where it shall appear  to the commissioner that there have be mutual credit give by the bankrupt and  any other person or mutual debt between the bank rupt and any other person at  any time before such person become bankrupt the commissioner or the assignee  shall state the account between they and one debt may be set against another  and what shall appear to be due on either side on the balance of such account  and on settle such debt against one another and no more shall be claim or pay  on either side respective the construction on this clause have always be that  a account must be take of their respective demand and that the balance only if  in favour of the bankrupt shall be prove under the commission suppose to lift  have never assign these good and the assignee under the commission of  bankruptcy have bring a action of trover in his right and by strictness of law  have recover will even the court of law have suffer execution to be take upon  the whole good I think they will not and in that case I will have direct that  out of the damage upon a writ of inquiry there shall have be deduct the half  price pay by Ragueneau and company for the silk a strong this ought to be do  in a court of equity as to the case cite wiseman v vandeput vern be much  strong than the present there a be beyond sea consign good to b then in good  circumstance in London but before the ship set sail news come that b be fail  and thereupon a alter the consignment of the good and consign they to the  defendant the court hold that if a can by any mean prevent the good come into  the hand of b or his assignee it be Allowable in equity and b or his assignee  shall have no relief in equity and so be the case ex part Clare before Lord  chancellor king for the good there have be actual deliver if the defendant  Prescot have get the good back again by any mean provide he do not steal they  I will not blame he and I be of opinion that to take they from he will be  extreme unequitable in the case ex part frank before Lord Talbot the good be  actual deliver here they be not atkins er p upon the whole from the justice of  the case and from the evidence on the custom of merchant I declare as to the  four bale of silk that the same be in the possession of Prescot and his  partner the say bale or the value ought not to be take from they without  satisfaction make they for the money lie out by they on the last mention bale  and charge incident thereto and for their commission thereon let the master  take a account of the money receive by Prescot by sale of the silk and he and  his partner to be charge with the atkins same let the silk remain in specie be  sell and the master be to distinguish what be the produce of the silk comprise  in the pledge to the several pawnees let the same be rateably apply to pay  what shall be due to Prescot and partner for the money advance for the last  mention bale charge and commission accord to the proportion which the same  bear to the respective value of the particular bale of silk comprise in each  of the pledge and after such proportion as be to be bear out of the value the  residue to go towards pay Julian and Le blon for their principal and interest  and also after the like deduction to Prescot for the silk pledge to the Thomas  the residue to be apply towards payment of principal and interest to the  Thomas and if not enough to pay Julian and Le blon and the Thomas they to come  in as creditor under the commission he proportion and if any overplus by the  sale of the silk the same to go towards pay the cost of Prescot and partner  Julian Le blon and the Thomas if no overplus that e master to rate the cost  between they and if any overplus after payment of the say debt and cost the  same to be pay to the assignee of the bankrupt for the use of the other  creditor Reg lib b fol see Lickbarrow v mason durn and east and Salamons v  Nissen ibidem by the judgement of the king bench in the former of these case  the principle lie down in the above case of she v Prescot be much shake but  that judgement be afterward reverse in the exchequer Chamber and the forgo  doctrine in she v Prescot be establish in its full extent videlicet that a  consignor may stop good in passage though the consignee assign the bill of  lade to a three person for a valuable consideration and without notice Henry  black Rep c b however the house of lord have since order that a venire facias  de to make new shall be award in this case durn east Id vide Fearon v bower  Henry black Rep