
    CURREY vs. ROULSTONE LYNCH, JORD EN BANKS & OWENS.
    
      Nashville,
    
    
      June 1809.
    
      In Equity. The facts were, that on the 6th of April 1804, Alexander Roulstone, one of the defendants, shipped at New Orleans in the barge called Deborah, Lindsey Shannon master, a quantity of goods, for account, and risk of Col. Charles Lynch, of Shelby county Kentucky, another of the defendants ; to be delivered to the said Lynch or his assigns, he or they paying freight at the port of Louisville on the Ohio.
    After the assignment of a bill of lading the right stoppage in transion is list.
    
      On the same day, and of the above tenor, the master of the boat signed triplicate bills of lading; one of which was transmitted by Roulstone to Lynch, who assigned the same to Jorden, Banks and Owens for a bona fide, and valuable consideration, who procured the cargo to be insured in Lexington, Kentucky, on the 25th of May 1804. The defendant, Roulstone after having shipped the goods at Orleans, came on immediately to Nashville, and on the 24 of June 1804, after stating himself to be the owner of the boat and cargo, employed the complainant as his factor to descend Cumberland river to the mouth, and there receive the goods of Shannon the master, bring them up to Nashville at the factor’s expense, and sell them, receiving therefor a certain commission. The complainant upon the credit of the goods, in addition to the expence of bringing them to Nashville, advanced Roulstone $175, The goods were received at the mouth of the river from Shannon, brought up to Nashville, and stored away, for the purpose of selling under the agreement, which was by deed. The expences of transporting and money advanced amounted to $718 43. Immediately after the goods were brought to Nashville by the complainant, they were claimed by Jorden, Banks and Owens, The complainant refused to deliver them until he should be paid the amount of his advances, and Roulstone’s order should be obtained. An attachment was taken out, returnable to the court of the United States, and the plaintiff summoned as garnishee to declare what property he had of Jorden, Banks and Owens. This was discontinued, and a writ of replevin sued out of the same court: this writ commanded the Marshall to replevy the goods and deliver them to Jorden Banks and Owens. 
    
    The bill state that the goods were taken out of the complainants possession by the Marshal, against his will delivered to the agent of Jorden, Banks and Owens who is now making sale of them-questions the legality of the proceeding by replevin-complains that he was deprived of his lien, by the goods having been taken out of his hands by he Marshal,-prays relief generally, and particularly that Jordan Banks and Owens may be enjoined from selling any more of the goods until final hearing.
    White and Overton,
    of counsel for the plaintiff, argued that the plaintiff was entitled to relief to the amount of his advances, for which he had a lien, and as he did not voluntarily part with the goods, he should not lose the benefit of it. It was admitted that the plaintiff never enquired for a bill of lading, not having been customary in trade at Nashville, to ask or require one; and the course of business at particular places will be noticed by the court. Str. Rep. 2 Johns. Rep. 327. That possession by Roulstone was evidence of property Bull. N. P. 47.1 Morg. Essays 401 to 402. 1 Bac. Abr. 604-5. 1 Atk. 245. It was insisted that let the goods belong to whom they might, the plaintiff had a lien, having acted bona fide and according to the course of trade at the place, and for this were cited Spee vs. Prescot 1 Atk. 245. 2 Burr 931 to 943. 3 Bos. & Pull. 490. 3 East. 590. 3 T. rep 122 3. 3 Bos. Pull. 420 1 Esp. rep. 240. 6 East. rep. 43. Lex Mercatoria Americana 392. 398. Bull. N. P. 130. Cow. 251. 
    
    Supposing, however, that it were necessary for the plaintiff to shew, that Roulstone had a legal right to dispose of the goods, it was contended that the goods having been shipped by him at Orleans, he had a right to stop them in transitu, the bill of lading not being negotiable as a bill of exchange ; that the shipper was not bound to shew on what ground he stopped the goods 3 East 398. ib 363. 1 T. rep. 745 ib 66. 1 H. B. 366. 369. 506. 4 East 217. 1 Bos. & Pull. 564. 5 East. 178. 2 Bos. & Pull. 46 &c. 1 Mer. mer. 164. 3 T. rep. 761. 1 H. B. 606. 2 T.rep. 70. 
      
    
    Whiteside on the part of Jorden, Banks and Owens, the assignees of the bill of lading, contended that Roulstone after the goods were shipped had no property in, nor power over them whatever, and that the plaintiff could not acquire any lien on goods delivered by such a person, no more than if they had been stolen,  The property of the goods followed the bill of lading, and was in Jorden, Banks and Owens, by assignment. 
       The plaintiff was in faule in not asking for a bill of lading before he received the goods. Whether the action of replevin were proper or not, was not the enquiry. The question simply was, whether the plaintiff could obtain a lien on the goods under the circumstances disclosed ; he certainly could not, and therefore his bill must be dismissed.
    The arguments used by the plaintiff's counsel were answered at great length, and the following authorities relied on, 1 Ld. Ray. 271 1. T. Rep. 205. 4 Burr. 2046. 2 T. Rep. 63.
    In reply it was said that the cases in 4 Burr 2046. and 1 T. Rep. 205, do not shew clearly the point decided, and the doctrine otherwise advocated was overruled and explained by Burr. 2680. 1 T. Rep. 659. 2 T. Rep. 63. 1 H. B. 359. 1 Bos and Pull 709.
    This cause having been twice argued, once before McNairy J. before the establishment of the present circuit court and at June term 1807, before Todd J. and McNairy J. the opinion of the court was now delivered by
    
      
       It much to be doubted whether replevin would he in to is this state in such a case.
    
    
      
       See also 2 John 341. 3 John 341.
    
    
      
       Vide 3 Cains 182 5 Mass: 37 Camp, rep. 282.
    
    
      
       Dub see general doctrine of stoppage in transitu
      
    
   Todd J.

After stating the case, observed that there were two kinds of bills of lading, and that the bill of lading before the court seemed to be different from the one referred to in Mason vs. Lickbarrow 1 H. B. 357.

In the principal case the property of the goods was transferred to Lynch, and from him to Jorden, Banks and Owens. The defendant Roulstone had no right to dispose of them as he did. There is no ground of relief against Lynch, or Jorden, Banks and Owens; and as to Roulstone we cannot decree against him, having been no party to the suit at law; and never having been a resident or citizen of the district, there is a want of jurisdiction.

The bill must be dismissed as to all the defendants. 
      
       It is probable the distinction here alluded to by the Judge, lies between a bill of lading for, on account and at the risk of the consignee, and on account of and at the risk of the consignor.
     
      
       The doctrine respecting mercantile lien may be seen an examined by recurrence to the authorities referred to at the bar and in the margin.
     
      
       Contra Camp. rep 108. 2 Bay 237.
     