
    
      MORGAN vs. BELL.
    
    East’n. District.
    March 1817.
    A consignee may sue for injury done to the goods.
    The misbehaviour of the counsel or of the jury must be taken advantage of, by a motion for a new trial.
    The court cannot allow interest on the su awarded in the verdict, which was before unliquidated.
    Appeal from the court of the first district.
    The plaintiff, as consignee of certain goods, brought the present action, to recover damages, for injury done to them, by the ill management of the master. There was a verdict, and judgment for him, and the defendant appealed.
    There was no statement of facts, but the defendant assigned errors. 1. That the suit ought to have been brought by the owner of the goods and not by the consignee.
    2. That the plaintiff’s counsel handed to the jury a formula, by which the verdict was rendered: they filling upon blanks left for the sums.
    
      3. That interest was given on the damages found, from the date of the petition.
    4. That the jury took an improper rule to ascertain the damages, viz. adding to the costs, at the port of shipment, the amount of insurance, freight, commission for the auctioneer and consignee, and deducting from the aggregate amount, the proceeds of the sale in this city.
    
      Hennen for the plaintiff.
    This is an action to recover damages for the injury done to certain goods, consigned to the plaintiff, on board of the vessel commanded by the defendant: which injury the plaintiff alleges arose from the negligence and mismanagement of the defendant.
    The general principle of law is, that the master aud owners are responsible for every injury that might have been prevented by human foresight or care. Abbott on ship. 276, 259. 1 Condey’s Marshall, 241, 2, 3. 6 Johns. Rep. 177. 2 Brown’s admiralty law, 144. 1 Emerigon 379, 377, 315. Pothier’s traite &c. charte-partie, no. 31. Domat, liv. 1, tit. 4, sect. 8, sect 4, and liv. 2, tit. 8, sect. 4, § 1. Justinian’s digest, lib. 19, tit. 2, lib. 25. and Godfrey’s comment thereon. 1 Pothier’s Pandects Justinian code 539, Roccus, nos. 55, 69, 16.—The jury, who were the proper judges of the fact, have by their verdict established the default of the defendant in this respect. But it is objected that the consignee of these goods has no right of action in his own name; particularly as the bill of lading states, that the goods were “for J. Hennen." It is an established rule, that an action against a carrier for the loss of goods, must in general, be brought in the name of the consignee, and not of the consignor. 1 Chitty on pleading, 3, the law implying the contract by the carrier, to have been made with the consignee, in whom the property of the goods was vested by the delivery to the carrier; and though the bill of lading, in this case, shews that the consignee is only a trustee, yet as the delivery is to be made to him, and as he has a beneficial interest in the performance of the contract for his commission, he may well maintain the action in his own name, and hold the sum recovered as trustee for the real owner, 1 Chitty on pleading, 4, 5. 1 Livermore’s law of Principal and agent, 215, 25. 2 Ventris 310.
    As to the objection that the court has allowed interest on the amount of the verdict of the jury, from the day of the judicial demand; it is sufficient to answer that a sum certain and ascertained was sued for; such a specific sum as could support the attachment that has been put upon the property of the defendant; and that the jury have found in favour of the plaintiff, that precise sum: therefore according to our practice, interest was justly allowed by the court on that sum, for which the jury found the defendant was in morâ. Just. digest, lib. 22.—tit. 1, l. 35.
    The other grounds taken by the defendant’s counsel for averting this judgment are clearly not within the province of this court. They might have been good cause, if established, for a new trial, but at this period such objections are too late.
    
      Livingston for the defendant.
    The bill of lading shews that the goods shipped on board of the defendant’s vessel, were the property of J. Hennen; if any damage therefore happened to them by the negligence of the defendant, it is the owner only who is entitled to bring an action. On this principle, the assignee being considered as owner, has in general the right of action: but here the consignee appears from the bill of lading, to be merely a trustee; and therefore is not entitled to any action for damages done to the goods of the owner.
    
      But independently of the objection to the form of action, the court below clearly erred in giving interest on the amount of damages found by the jury. The demand was unliquidated, until ascertained by verdict, and in all such cases no interest is ever allowed: for that would be to add to the verdict.
    If the court is satisfied, from the inspection of the record, that the jury erred in their mode of calculating the damages, or that the formula of a verdict was handed them: surely then it is, not too late to remedy this injustice whenever discovered.
   Martin, J.

delivered the opinion of the court. I. The consignee of goods has, in our opinion, such interest in them as authorises him to sue for them, if they be withheld in whole or in part, or if they be injured. In the latter case there is a failure on the delivery, according to the bill of lading.

II. We think that any misconduct of the counsel or of the jury, especially of the kind complained of, ought be taken advantage of by a motion for a new trial: otherwise, in a case like the present, it will be presumed that the formula was given with the knowlege and consent of the other party: the only evidence of the fact being the presence of the formula, among the papers of the suit, in the handwriting of the counsel.

III. We are of opinion that the court erred in allowing interest upon the sum awarded in damages by the jury, from the date of the petition.

IV. The rule said to have been taken by the jury to assess the damages, we could not consider as an improper one. If they believed that at the time goods imported into this country from England were worth costs and charges, they acted correctly, and nothing appears to induce us to think that the case required a resort to any other rule: but if it were otherwise the remedy was by a motion for a new trial.

It is ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed: and it is ordered that there be judgment for the plaintiff for the sum of 4261 dollars 91 cents, awarded by the jury and costs: and that the plaintiff and appellee pay the cost of this appeal.  