Page:United States Reports, Volume 2.djvu/187

 surnam Conn or Pmyywlava in prima jiuieevidenee that it was given when it bears date ; but 1792. when theinflrument does not appear, it cannot be fupplicd by*""·' the oath of the defendant. The evidence was accordingly !`gjC&€<l. Other proof of the bill of lading being received, together with evidence that part of the goods was ihipped, and part not ; and fome, though doubtful, evidence, that the conlignmcnt was in favor of a bauajde creditor, and intended as aremxttance to him. Mo)-lem, for the defendant, argued, nfl. That the bill of lad- ing transferred the property to the conlignee. 1 Term. Rep. 205. 9. He to whom biiis of lading are Brit delivered has the legal property; and an indorfement is fulficientto transfer it. It was fo ruled in this Court, before the revolution, in the cafe of Morrir verfu — ; where Kearney and Gilbert, {hipped goods coniigned to a merchant, in Landon, and as foon as the bills of lading were filled up, 4W¤rri.r attached them as the property of the conlignee, and the attachment was fuftained, though the goods had not been paid for by the conlignee. Notice is not necclliiry, and when a conlignment is in fatisfaétion of a debt, it paffes the property even before agreement. All the cafes go upon thegoodnefs of the conlideration. So is 4 Burr. 2238. 1 Sin:. 16g. ` ad. The goods were liable for the freight, and could not be attached without tender of the freight, and indemnity to the captain. A demand of this indemnity was formally made upon the iherifi, by the captain. The lading is liable for the freight, nor is it liable to be attached. Bmux. Lex. Mer. 112. Al- though the veffel does not fail, yet freight is due if it be detained by thc freighter’s fault. Mall. B.IL Cb. 4. §. 9. 15izL Ch. 3. §. rg. 2 Eq. Car. Ab. 98. p. 1. In equity, freight is recover-I able, though the goods be not on board. 3 Bac. 598. A pawn or pledge cannotbe taken in execution; and all the cafes conlider the goods laden as pawned for the freight: 2 Bar. N U 2. JJFor the plaintiff} Se-ijermt and Todd contended, that no freight was due til! the vcllitl breaks ground. Beam-. 1 10. .Mrl. B.1L Cl-. 8. §. 3. Thofe authorities mention ¤¢ breaking ‘ ground,” as eiibntial. But, at all events, this ought to have been p·2·ud¢·d ; or might be fettled now. Lau-: Cmp. 245. The bills of lading did not pafs the property abfolutely; and the goods might be flopped in tmqftu. 2 Term. Rip. 63. yo. 3 Term. ug. 783. 1%. 327. r Ad. 24;. Until goods are onboard, thc conlignment cannot take cll`e£t. Smrran, [}'g’l.°.·z·.‘ The fails which the jury mult decide, arc-ill. Wlietlier a bill of lading was figned as the defendants _ contend. " The Gmzr ];·:·r:c", being ahliint-

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