66 66 "sometimes do not, express on whose account and risk the "goods are shipped; they often, especially in time of war, express a false account and risk; they seldom, if ever, bear upon the face of them any indication of the purpose of the "indorsement. To such an instrument, so various in its use, "it seems impossible to apply the same rules as govern the "indorsement of bills of exchange. The silence of all "authors treating of commercial law, is a strong argument "that no general usage has made them negotiable as bills "of exchange. The conclusions which follow from "this reasoning, if it be just, are-1st. That an order to "direct the delivery of goods indorsed on a bill of lading, is not equivalent to, or even analogous to, the assignment of "an order to pay money by the indorsement of a bill of "exchange. 2nd. That the negotiability of bills and promissory notes is founded on the custom of merchants and "positive law; but as there is no positive law, neither can any "custom of merchants apply to such an instrument as a bill of lading. 3rd. That it is, therefore, not negotiable as a bill, "but assignable, and passes such right, and no better, as the person assigning had in it. This last proposition I confirm by the consideration, that actual delivery of the goods does "not itself transfer an absolute ownership in them, without a "title of property, and that the indorsement of the bill of "lading, as it cannot in any case transfer more right than the "actual delivery, cannot in every case pass the property, and "I therefore infer, that the mere indorsement can in no case convey an absolute property. It may, however, be said, "that admitting an indorsement of a bill of lading does not "in all cases import a transfer of the property of the goods "consigned, yet where the goods, when delivered, would 66 66 belong to the indorsee of the bill, and the indorsement "accompanies a title of property, it ought in law to bind the "consignor, at least with respect to the interest of third "parties; this argument has, I confess, a very specious appearance." He combats it, however, at great length, and with much ability and learning, and concludes by giving judg ment for the plaintiff in error, who was the defendant below. 66 66 This judgment was taken by a writ of error to the House of Lords (a), and in 1793 the opinions of the Judges were taken. Six of them-Eyre, C. J., Gould, J., Heath, J., Hotham, J., Perryn, B., and Thomson, B.-delivered their opinions for affirming the judgment of the Exchequer Chamber; three of them, Ashurst, J., Grose, J., and Buller, J., were for reversing it. The only one of those opinions which has been preserved is that of Buller, J. (b) he maintains that the indorsement of a bill of lading does of itself transfer the legal property, and further that the right of stoppage in transitu does not exist, except between the seller and the original buyer. From some expressions of Eyre, C. J., in a subsequent case, in 1796, it may be collected what his opinion was. "And here," said he in Haille v. Smith (c), "the bill "of lading operates as in my poor judgment it ought to operate; it operates as evidence of a change of property, "and as such I have no difficulty and never had in giving "it its full effect. Ninety-nine times in an hundred the "indorsement of a bill of lading will be conclusive evidence "of the alteration of property, without ascribing to it the "effect of a legal instrument, as a bill of sale. Cases may "arise in which it will be difficult to understand that such was the meaning of the parties." What the opinions of the other five Judges in Lickbarrow v. Mason (d) were grounded upon must be collected from the course of subsequent decisions, or remain in doubt. The House of Lords ordered a venire de novo, as they were of opinion that the facts did not sufficiently appear on the record. The jury on the new trial (), under the direction of Lord Kenyon, found a special verdict, in which in addition to the facts before stated, they found that by the custom of merchants bills of lading are negotiable and transferable, and that by such negotiation the property in the goods is transferred. The King's Bench (e), (a) Lickbarrow v. Mason, 6 East, 21. (b) 6 East, 21, n. (c) Haille v. Smith, 1 B. & P. 570. in 1794, without argument gave judgment for the plaintiff, in order that the case might be taken to the House of Lords, but the defendant submitted and did not take the case into error. As far as the opinions of the Judges can be ascertained (a), they were eight to four in favour of the defendant; but it is probable that the finding of the jury of the custom of merchants had great weight; at all events, it was always after Lickbarrow v. Mason (b) considered as settled law that a bona fide purchaser of an interest in goods, by taking an assignment of a bill of lading in furtherance of that purchase, rendered his interest indefeasible by the consignor's stoppage in transitu. But the decisions subsequent to Lickbarrow v. Mason showed that the holder of a bill of lading, if he had no interest in the goods, nor authority from the real owner to sell an interest in them, could not (in cases to which the Factors Acts did not apply) give to his indorsee any title in the goods, although the indorsee had bona fide given value for the indorsement of the bill of lading. In this respect, a bill of lading is unlike a bill of exchange, and can scarcely be properly called negotiable at all. An indorsement of a bill of lading does not by itself prima facie confer any legal right of possession on the indorsee, or anything more than an authority to receive; though an indorsement of the bill of lading in furtherance of such a bargain as of itself confers an interest in the goods, does on behalf of a bona fide indorsee, operate as an actual delivery of the possession would have done, and so renders that interest indefeasible by the original seller's stoppage in transitu. To that extent the bill of lading is negotiable, but the mere indorsement of the bill of lading, not in furtherance of a bargain, is not equivalent to a delivery of possession, even as against a wrong-doer. If this be a correct view of the subsequent authorities, they show that (a) Six to three in the House of Lords, and Lord Loughborough and Wilson, J., who concurred in the judgment of the Exchequer Chamber, against Lord Kenyon, who was a party to the second judgment of the King's Bench. (b) Lickbarrow v. Mason, 5 T. R. 683. most of the positions for which Buller, J., contended, in Lickbarrow v. Mason (a), were overruled in that case; and it is very important that this should be clearly stated, for the very great ability of his opinion, and the prominent way in which it is reported, cause it frequently to be taken as the judgment of the House of Lords in Lickbarrow v. Mason (a). Coxe v. Harden (b), in 1803, is the first reported case on the subject, after the final decision of Lickbarrow v. Mason (a). In this case a mere indorsee brought trover in his own name. There the unpaid sellers, Browne and Co., indorsed the bill of lading to Coxe their agent, for the purpose of stopping the goods in transitu. Coxe brought trover in his own name, against a buyer of the goods who had obtained possession. The King's Bench decided the case on the ground that the transitus had terminated, but they expressed a strong opinion, that even if it had not, Coxe could not maintain trover in his own name. Lord Ellenborough said: "No decision of a Court "of law has ever gone further than to say, that the assign"ment of a bill of lading by the consignees for a valuable "consideration, and without notice by the party taking it of "a better title, passes the property in the goods thereby con"signed. But no consideration having been paid by the "plaintiff in this case for such assignment, he took the bill of "lading merely as agent for Browne and Co., and without 66 66 any property in himself in the goods. The analogy between "bills of lading and bills of exchange has been pushed "in the argument beyond all warrant of authority; but I agree to the extent of the doctrine in the case of Lickbarrow "v. Mason, that an indorsement of a bill of lading for a "valuable consideration, and without notice by the indorsee "of a better title, passes the property." In Newsom v. Thornton (c), in 1805, the facts were that the (a) Lickbarrow v. Mason, ante, p. 427. See also Sewell v. Burdick, in 1883, 52 L. J. Q. B. 428; 10 App. Ca. 74 at p. 100. (b) Coxe v. Harden, 4 East, 211. (c) Newsom v. Thornton, 6 East, 17. plaintiffs consigned some beef to Church, as their factor, and sent him an indorsed bill of lading; he pledged the bill of lading with the defendants (who had no notice that Church was only a factor), and soon after became bankrupt. The pledgees obtained the goods, and the plaintiffs recovered a verdict in trover against them. The defendant's counsel argued before the King's Bench, that the indorsement of a bill of lading for a valuable consideration, and without notice, conveys per se the legal property in the goods to the indorsee. The King's Bench refused to disturb the verdict. Lord Ellenborough said: "I should be sorry if anything fell from "the Court which weakened the authority of Lickbarrow v. "Mason, as to the right of a vendee to pass the property "of goods in transitu by indorsement of the bill of lading to "a bona fide holder for a valuable consideration, and without "notice. This was a direct pledge of the bill of lading, "and not intended by the parties as a sale. A bill of lading, "indeed, shall pass the property upon a bona fide indorsement "and delivery, where it is intended so to operate, in the (( same manner as a direct delivery of the goods themselves "would do if so intended, but it cannot operate further. 'I consider the indorsement of a bill of lading, apart from "all fraud, as giving the indorsee an irrevocable uncounter"mandable right to receive the goods, that is, where it is "meant to be dealt with as an assignment of the property in "the goods, but not where it is only meant as a deposit by one who had no authority to do so." Lawrence, J., said: "In the case of Lickbarrow v. Mason, some of the Judges "did indeed liken a bill of lading to a bill of exchange, and "consider that the indorsement of the one did convey the "property in the goods in the same manner as the indorse"ment of the other conveyed the sum for which it is drawn; "but when the case was before the Exchequer Chamber, "there was much argument to show, that in itself the in"dorsement of a bill of lading was no transfer of the pro"perty, though it might operate as such, in the same manner "as other instruments may be evidence of the transfer of "property; as if goods be sold by a merchant abroad to his FF |