
    Nathaniel Hayward against Henry Middleton.
    Charleston,
    May, 1817.
    By the Common tea lien on‘the an action against the consigner tor cantolotbound consigne, 4° ¡te lachesfir’tlnTracpromise, omits to pay, and no suit Hmfand bfboí
    case was tried before. Mr. Justice Grimke* hi January Term, 1811, at Charleston.
    The piainhii was the owner 01 a schooner em-x ployed in carrying produce to market, and the defendant sent on board of her a quantity of rice, which he consigned to his factor in Charleston. The rice was delivered to the factors in the months of March, April, and May, 1805; and the plaintiff’s factor, who also resided in Charleston, debited the freight to the defendant’s factors; and frequently before the December following, at which time their house stopped payment, called on them for payment, but received for answer that the rice had not been sold, or that the proceeds of the sales had not been received. This action was therefore brought against the defendant, to recover the freight. The plaintiff’s right to recover, was resisted on two grounds: lstf That by long and well established usage, the factor or consignee, and not the planter or con-signer, was bound to pay the freight of produce. 2d, Admitting the ultimate liability of the defendant, the plaintiff was guilty of laches, in not pursuing his remedy against the factors before they had stopped payment, and therefore the defendant was discharged. Several witnesses were sworn in support of the alleged custom; but from the view taken of this case, it is deemed unneeessary to state even the substance of their evidence. The Jury found a verdict for the defendant, in the Following words: “There- being in this case a want of sufficient diligence on the part • of the plaintiff, or his agent, we therefore find for the defendant.”
    A motion was made for a new trial, and the brief sets forth six distinct grounds in support of the motion; but it is believed that the whole are included in the single inquiry, whether the grounds taken by the defendant in the Circuit Court, above stated, are sufficient to defeat the plaintiff’s action.
   Johnson, J.

delivered the opinion of the Court

There can be no doubt but that, by the Common Law, a carrier has both a lien on the goods, and an action against the consigner for the freight. Lex Mercatoria Americana, 203. Abbot on Shipping, 276, 290. 3d Johnson’s Rep. 328. But it is alleged in this case, that by á long and well estalished usage, peculiar to this species of freight, the liability of the consigner is shifted to the consignee. It is not necessary in this case to determine whether such an usage, if established by sufficient proof, is or is not unreasonable, and inconvenient, nor to determine what would be the legal consequences of it; for the Jury have by their verdict negatived the proof of the- existence of such usage, by the strongest implication.

It is not usual for Juries to assign their reason# in form, for the verdicts they give; but when they do so, the Court will look to their correctness.' I regard it in the same light that I would a case When improper evidence has been suffered to go before them, and will not weigh what influence it might have had on their minds; for surely the influence of erroneous principle is atleast as dangerous as the influence ofimproperevidence,andoughtto be more guarded against, as it is moré difficult to detect; but as in the former case, I should in this be disposed to support the verdict, if there existed sufficient reasons, founded in fact, to support the conclusion drawn by it, independent of those given by the Jury; but such was not the case here. It appears to me impossible to give any other Construction to their verdict, than that for no other reason than that the plaintiff, or his agent, had been guilty of negligence in collecting the freight from the factors, he ought to lose it, and that butfor that only reason he was entitled to recover.

Having established the principle that the defendant was liable in the first instance, it follows as a matter of course that the plaintiff was not bound to look to his factors at all, and therefore Could have been guilty of no laches, and consequently the verdict Was predicated on erroneous principles, nor do I think that the circumstance of the plaintiff’s factor debiting the freight to the defendant’s factors, can alter the case. It could impose no liability, where none previously existed, nor could it discharge one that did exist.

Ford and Prioleau, for the motion.

T. Parker, contra.

I am therefore of opinion that the motion for a Hew trial ought to be granted.

The other Judges concurred.  