The opinion of the Court was delivered by •
Wardlaw, J.The defendants urge that they were consignees of the goods — that the plaintiffs had no right of stoppage in transitu, as that right exists only between vendor and vendee, and where the latter is insolvent; and that a consignment without explanation, transfers the ownership to the consignee, and there can no more be an action by the consignor against the consignee on a bill of lading, than one by a maker of a prom-isory note against a payee, on the note itself. Admit all this. It results that there was a delivery of goods by the plaintiffs to *133the defendants ; and the admissions and proofs show that the defendants are auctioneers and commission merchants, and have sold the goods; that they did not pretend to claim as owners, but only to have a lien by reason of advances made by them to one Bingley. who had possession of one of the set of bills of lading. The defendants must then account for the sales ; and they must account to the plaintiffs from whom they received the goods, unless they can show that the right of the plaintiffs has been transferred to some other person. Whether a third person’s possession of a bill of lading, even although the possession of it may have been acquired from the consignors, will, of itself, furnish sufficient evidence of the right of that person to give directions concerning the goods, or to receive the proceeds of their sale, is' a question which may arise in the future trial of the case. We now see that the plaintiffs had furnished such prima facie evidence as ought to have gone to the jury, even if it was not clearly sufficient for their recovery, until it was rebutted by evidence in defence.
The non-suit is set aside, and new trial ordered.
O’Neall, WxtheRs, Whitner, Glover and Munro, JJ., concurred.New trial ordered.