Bass v. Glover

Bleckley, Justice. Ordinarily, delivery to the consignee discharges the carrier, if made without notice of right in another. Hutchinson on Carriers, §130 ; Schouler on Bail, and Carriers, 496, et seq. The consignee is presumptively the owner. 23 N. Y., 335; 17 How., 100. But there must be always a due regard to the obligations to which bills of lading give rise. 115 Mass., 219, 230, 233; 14 Wall., 98. As, in general, the bill of lading is assignable by the consignee, and sometimes by the consignor, so as to render the carrier liable to make delivery to the assignee, it seems no unreasonable regulation to require the production of the bill of lading (in case one has been issued and put in a situation to be thrown upon the market) as a condition of delivery even to the consignee. In the present litigation, it was not shown affirmatively that any bill of lading was signed, nor did the contrary appear. But the shipment was from a remote point, and there were intermediate carriers between the lines of the initial carrier and the carrier who completed the transportation. The strong probability, therefore, is that there was a bill of lading. It may be that the name “bill of lading” is not strictly appropriate to a receipt given by a common carrier as the evidence of a bailment for transportation upon land, but we believe the receipts of railroad companies are by usage so denominated, and that in respect to assignability and the effect of assignment, the [747] rule is the same touching them as touching bills of lading proper. But coneeding that the consignee might support trover or other regular action without producing the bill of lading or accounting for it, we think that where he has never had any actual possession of the goods he cannot, with the bill of lading outstanding, recover possession from the carrier by possessory warrant. The oath which has to be taken to procure a possessory warrant (see Code, §4032) is not suitable to be taken by a consignee so situated ; for while delivery by the consignor to the carrier is delivery to the consignee for many purposes, it is not so for all purposes. If, as between the consignee and ■ the carrier, the consignee ever was in possession within the meaning of the possessory warrant law, it was only a constructive possession; and while it remains uncertain as to who is the holder of the bill of lading, there is reasonable doubt in whom the best claim to constructive possession, resides. Moreover, where the constructive possession asserted is-but the legal shadow of the actual possession which is attacked, mere "constructive possession is not a very satisfactory basis for a possessory warrant at the best. There is no denying, we think, that the statute does not fit the case before us. There was good cause for certiorari, and the judge erred in not giving his sanction to the petition so that the writ might issue. Judgment reversed.