The libellants contend that the lumber was delivered.' to them when it was sent on board the ship which they had chartered to transport; it. If this is so, their next point is sound, that, the vendor had no right to revoke his act's and reassert a dominion which he had once parted with. Ogle v. Atkinson, 5 Taunt. 759; *547Stanton v. Eager, 16 Pick. 467; Bolin v. Huffnagle, 1 Rawle, 9.
A vendor, however, may make a conditional delivery, hy which he does not divest himself of the control of the property, but makes the carrier his own agent Mitchel v. Ede, 11 Adol. & E. 888; Wait v. Baker, 2 Exch. 1; Ellershaw v. Magniac, 6 Exch. 570, note. A delivery at the wharf is an incomplete act, ambiguous in itself, and to be explained by the vendor at the time, or before the shipment is finished. In this case the act was explained not only by what followed, but by what had gone before, because in shipping a former part of the same cargo the shipper had demanded and received a bill of lading in his own name.
The simplest mode of stating the rights of the parties is, that however strongly one may be bound to convey his property to another, the title does not pass until the owner chooses to pass it, or until a court of equity compels him to do so; and, therefore, "if, against all reason and • right, he insists on retaining the possession, until the transit is ended, he does retain it. The only alternative for the master in this case was to refuse to receive the goods on these terms. But this is not what the libellants wished, nor is their complaint that he failed to reject the cargo. They were not willing to pay dead freight; and therefore required him to do what he had no right to do, promising to hold him harmless. He had no right to receive the goods on any other terms than those on which they were offered: he must accept or reject If Hudgins had been a mere agent to forward the goods, the libel-lants might have revoked his agency; but a vendor, even if paid, is not a mere agent
The question has been lately decided in favor of the master in the court of exchequer in England, by two judges against one; and it seems to me that the opinion of the majority is sound,, for the reasons already given. The case was a very hard one for the buyers of the goods, but the principles that must decide it were considered too strong for the equities of the case. Kreeft v. Thompson, L. R. 10 Exch. 274. In that case the master had not been notified by the charterers what sort of bill of lading he was expected to sign, further than the charter-party Itself might inform him. But this is immaterial; because the decision turned upon the right of the shipper to dictate the terms upon which he would deliver his goods, which would be the same though the charterers themselves had been present. They could not have accepted in part and rejected in part
But if we grant that the property had once passed to the charterers, can the master be held to pay as damages for delivering the bill of lading a sum of money which the libellants have paid to the shipper? Thf latter could not by obtaining such a document revest the property in himself, or transfer a good title to one claiming under him, even in good faith. Ogle v. Atkinson, 5 Taunt. 759; Stanton v. Eager, 16 Pick. 467; Kreeft v. Thompson, L. R. 10 Exch. 274. The bill of lading, then, would be waste paper as against the libellants, though it might give the shipper the means of deceiving others. Where, then, was the légal compulsion upon the libellants to accept the draft? If Hudgins had retained actual possession of the cargo, the payment would have been compulsory; but if he had only a paper title which was worthless, can it be so considered? A slight duress or obstruction might be enough, as between the party ex-' acting the payment and him who makes it,: to deprive the payment of its voluntary character, and to warrant an action of assumpsit to recover it back. The question is, whether a third person has not a somewhat different position; whether, if the master was wrong in giving this bill of lading, he should be held liable for damages which are not the legal and natural consequences of his act.
Those natural consequences would seem to be the possible injury to third persons, who should advance money on the bill of lading in ignorance of its invalidity; and I am not at all prepared to say that a master’might not be liable in tort, in some cases, for damage of that character. So far as the shipper is concerned, the master is presumed to know that his bill of lading cannot avail against the true owner, though for any expense or trouble to which the latter might" be put to vindicate his title there might he a liability. None such were suffered in this case; the libellants yielded to a demand which could, not be enforced; wisely; perhaps, but still not under a strict necessity. As, however, I consider the first point, a" clear .one against the libellants, I do not decide this. Libel dismissed with costs. . ,