*

tain degree, still floating and unsettled; though it seems*549 now to be considered as the law at Westminster Hall,

that if a bill of lading be assigned, bonâ fide, and for a valuable consideration, it is a transfer of the property; and in the case of the consignee, if it be made without notice of the insolvency of the consignee, the property is absolutely vested in the assignee of the consignee, and the consignor has in that case lost his right to stop. (a) It is likewise considered to be the law in this country, that the delivery of the bill of lading transfers the property to the consignee; and it seems to be conceded that the assignment of it by the consignee, by way of sale or mortgage, will pass the prop

3

(a) Coxe v. Harding, 4 East, 211. Cuming v. Brown, Ibid. 9 506. Morison v. Gray, 2 Bing. 260. Walter v. Ross, 2 Wash. C. C. 283. Wharton's Dig. tit. Vendor, B. b. Haille v. Smith, 1 Bos. & Pull. 563. In Morison v. Gray, 9 Moore C. B. 484, it was held, that the bonâ fide assignee of a bill of lading had a sufficient property to stop the goods while in transitu, on the insolvency of the vendee, and to sue in his own name the wharfinger who refused to deliver up the goods. But though a bill of lading be negotiable, it seems in a late case to be doubted whether a bill of lading was conclusive as between the shipowner and a bonâ fide indorsee for value. Berkley v. Watling, 7 Adol. & Ell. 29. In Birckhead v. Brown, 5 Hill (N.Y.) 634, it was declared that letters of credit and commercial guaranties were not negotiable instruments, and that no special contracts, other than bills of exchange and promissory notes, were negotiable instruments, and no one could sue in his own name but an original party to the contract. Lamourieux v. Hewit, 5 Wendell, 307. Watson v. McLaren, 19 Idem, 557. 26 Idem, 425. Miller v. Gaston, 2 Hill (N. Y.) 188.1

In Thompson v. Dominy, 14 Mees. & W. 403, it was adjudged that a bill of lading was not negotiable like a bill of exchange, so as to enable the indorsee to sue in his own The indorsement transfers the right of property in the goods, but not the contract itself. The court said that there was no case that went so far.2

name.

1 It seems that the contract with the carrier cannot be assigned so as to give the assignee a right of action on the contract, or for a breach of it. Howard v. Shepard, Law Journal, Q. B. p. 249, Sept. 1850.

2 In Gurney v. Behrend, 25 E. L. & Eq. 128, the court of Q. B. held that a bill of lading did not pass the property to a bonâ fide indorsee so as to divest the right of stoppage in transitu, unless the indorsement was made with the authority of the vendor.

8 But the New York Court of Appeals, in Dow v Perrin, 16 N. Y. (2 Smith) 325, held that the consignor's right to stop in such case was not gone, if the bill of lading had been obtained from the owner of the goods by a fraud. See Kingsford v. Merry, 1 Hurl. & Nor. 503. Brower v. Peabody, 13 N. Y. 121. Gurney v. Behrend, 3 Ell. & Bl. 622. The effect of a consignment of goods generally is to vest the property in the consignee: but if the bill of lading is special, to deliver the goods to A., for the use of B., the property vests in B., and the action must be brought in his name. Grove v. Brien, 8 How. U. S. 429. As a general rule, a suit, founded on the express contract of the bill of lading, must be brought in the shipper's or owner's name; an indorsement of the bill will transfer the property in the goods, but not the contract in the bill of lading. Dows v. Cobb, 12 Barb. (N. Y.) 310.

erty, though no actual delivery of the goods be made, provided they were then at sea. The rule is founded on sound principles of mercantile policy, and is necessary to render the consignee safe in the acceptance of the drafts of his correspondent abroad, and to afford him the means of prompt reimbursement or indemnity. (b)

* 550

*But it must not be understood that the consignee can, in all cases, by his indorsement of the bill of lading to a third person, even for a valuable consideration, and without collusion defeat the right of the consignor to stop the goods. It will depend upon the nature and object of the consignment, and the character of the consignee. As a general rule, no agreement made between the consignee and his assignee can defeat or affect this right of the consignor; and the consignor's right to stop in transitu is prior and paramount to the carrier's right to retain as against the consignee. (a) A factor, having only authority to sell,

(b) Wright v. Campbell, 4 Burr. 2051. Griffith v. Ingledew, 6 Serg. & Rawle, 429. Peters v. Ballistier, Pick. 495. Walter v. Ross, supra. In Conard v. The Atlantic Insurance Company, 1 Peters U. S. 386, it was decided that the consignee, being the authorized agent of the owner to receive the goods, his indorsement of the bill of lading to a bonâ fide purchaser, for a valuable consideration, without notice of any adverse interest, passed the property as against all the world. This is the result of the principle, that bills of lading are transferable by indorsement, and pass the property. Strictly speaking, no person but such consignee can, by indorsement of the bill of lading, pass the legal title to the goods; but if the shipper be the owner, and the shipment be on his account and risk, he can pass the legal title by assignment of the bill of lading, or otherwise; and it will be good against all persons, except the purchaser, for a valuable consideration, by an indorsement of the bill of lading itself. The same principle was declared in Nathan v. Giles, 5 Taunt. 558. A deposit of the bill of lading, without indorsement, will create a lien on the cargo to the amount of the money advanced on the strength of the deposit, which would be superior to the consignor's right of stoppage. That right came from the courts of equity, and is founded upon equitable considerations; and it consequently must yield to a still higher equity in a third person. In Louisiana it has been held that goods shipped could not be attached by the creditors of the shipper, after the bill of lading had come into the hands of the consignee; but they might be attached by the creditors of the consignee. M'Neill v. Glass, 13 Martin (Louis.) 261.

(a) Oppenheim v. Russell, 3 Bos. & Pull. 42. The right of stoppage is held not to be divested though the goods be levied on by execution, at the suit of a creditor of the purchaser, provided it be exercised before the transitus is at an end. The vendor's lien has preference; it is the elder lien, and cannot be superseded by the attachment of a

It has been decided, that where the master signed bills of lading in the usual form, but for goods which were never received on board, the shipowner was not responsible, though the bill had been transferred to a bonâ fide indorsee for value. Grant v. Norway, English Law Journal, May, 1851, C. P. p. 93.

and not to pledge the goods of his principal, cannot divest the consignor of the right to stop the goods in transitu, by indorsing or delivering over the bill of lading as a pledge, any more than he could by delivery of the goods themselves by way of pledge; and it is the same thing whether the indorsee was or was not ignorant that he acted as factor. (b) If the assignee of the bill of lading has notice of such circumstances as render the bill of lading not fairly and honestly assignable, the right of stoppage as against the assignee is not gone; and any collusion or fraud between the consignee and his assignee will of course enable the consignor to assert his right. But the mere fact that the assignee has notice that the consignor is not paid, does not seem to be *551 of itself absolutely sufficient to render the assignment defeasible by the stopping of the cargo in its transit, if the case be otherwise clear of all circumstances of fraud; though, if the assignee be aware that the consignee is unable to pay, then the assignment will be deemed fraudulent as against the rights of the consignor. (a)

The buyer, if he finds himself unable to pay for the goods, may, before delivery, rescind the contract, with the assent of the seller.1 But this right of the buyer of rejecting the goods, subsists only while the goods are in transitu. After actual delivery, the goods become identified with his property, and cannot, in contemplation of bankruptcy, be restored to the seller; nor can he interfere and reject the goods, though in their transit, after an act of bankruptcy committed; for this would be to give a preference among creditors. (b)

creditor. Smith v. Goss, 1 Campb. (N. P.) 282. Buckley v. Furniss, 15 Wendell, 187. Marshall J., in Hause v. Judson, 4 Dana (Ken.) 11.1

(b) Newson v. Thornton, 6 East, 17. (a) Cuming v. Brown, 9 East, 506. As long as the vendor of goods delivered for exportation retains the receipt given to the cartman, the shipment is not complete, and the right of stoppage not gone. Bradner v. Jones, N. Y. Legal Observer for March, 1847. (b) Smith v. Field, 5 Term Rep. 402. Barnes v. Freeland, 6 Ibid. 80. Richardson v. Goss, 3 Bos. & Pull. 119. Bartram v. Farebrother, 1 Dans. & Lloyd, 42. Independent of the question under statutes of bankruptcy, it seems to be settled, that the vendee's consent to restore goods, and the vendor's consent to receive them, revests the property in the vendor, and amounts to a rescission of the sale, so as to prevent a seizure

1 Aguirre v. Parmelee, 22 Conn. 473. Wood v. Yeatman, 15 B. Mon. 270. Contra, Boyd v. Mosely, 2 Swan, 661.

1 See Grout v. Hill, 4 Gray,361.

Sir William Scott observed, (c) that this privilege of stoppage was a proprietary right, recognized by the general mercantile law of Europe, as well as by that of England. It was recognized in Scotland in 1790; and the French law has gone very far towards the admission of the right, to the full extent of the English rule. It allows the vendor to stop the goods in their transit to the consignee, in case of his non-payment or failure, provided the goods have not been in the mean time sold bonâ fide, according to the invoices and bills of lading, or altered in their nature or quantity, and the estate of the insolvent vendee be indemnified against all necessary expenses and advances on account of the goods; and the assignees of the vendee will be entitled to the goods on pay

ment of the price. (d) The civil law, and the laws of those * 552 European nations which have * adopted the civil law, con

tain a great impediment to the absolute negotiability of bills of lading; for they do not consider the transfer of property to be complete, even by sale and delivery, without payment or security for the price, unless credit be given. In case of insolvency, the seller may reclaim the goods, as being his own property, even from the possession of the buyer, provided they remain unchanged in form, and distinguishable from his other goods. (a) This was also the law of France, until the commercial code adopted the law of stopping in transitu, and rejected the old law of revendication, as tending to litigation and fraud. (b)

XII. Of the interpretation of contracts.

The rules which have been established for the better interpretation of contracts, are the conclusions of good sense and sound logic, applied to the agreement of the parties. Their object is to ascertain with precision the mutual understanding of the contract in the given case; and, like other deductions of right reason, they

at the suit of creditors. Atkin v. Barwick, Str. 165. Salte v. Field, 5 Term Rep. 211. Ash v. Putnam. 1 Hill (N. Y.) 303, 310.

(c) 6 Rob. Adm. 498.

(d) Code de Commerce, Nos. 576-580, 582.

(a) See Lord Abinger's sketch of the progress of the doctrine of stoppage in transitu. Gibson v. Caruthers, 8 Mees. & W. 336.

(b) Dig. 18, 1, 19. Domat, b. 4, tit. 5, sec. 2, art. 3. Van Leeuwen's Com. on the Roman Dutch Law, b. 4, ch. 17, sec. 3. Case at St. Petersburg, in Russia, cited in Case at Amsterdam, cited in the note to 1 Bell's

Bohtlingk v. Inglis, 3 East, 386.
Com. 217, 218. See supra, 498.

have been quite uniform in every age of cultivated jurisprudence. The title De Diversis Regulis, in the Pandects, (c) as well as the sententious rules and principles which pervade the whole body of the civil law, show how largely the common law of England is indebted to the Roman law for the code of proverbial wisdom. There are scarcely any maxims in the English law but what were derived from the Romans; and it has been affirmed, by a very competent judge, that if the fame of the Roman law rested solely on the single book of the Pandects, which contains the regulæ juris, it would endure * forever on that founda- * 553 tion. (a) Besides the authoritative collection of maxims already referred to, there is a still larger collection of principles in the same condensed shape, drawn by one of the modern civilians from every part of the civil law, and digested with great diligence and study. It is contained in some of the editions of the Corpus Juris Civilis; and in them it immediately precedes the code. (b)

Among the common-law writers who have made compilations of this kind, Lord Bacon stands preeminent. In his treatise De Augmentis Scientiarum, there are nearly one hundred aphorisms, containing principles which lie at the foundation of universal justice, and the sources of municipal law. He defines his collection to be Exemplum tractatus de justitia universali, sive de fontibus juris; and it is a code proper for the study of statesmen, as well as lawyers; for it abounds in principles of legislation, as well as of distributive justice. (c) Another work of Lord Bacon consists of his maxims, or elements of the common law, being some of those conclusions of reason, or condensations of truth, dispersed throughout the body of the law, and worthily and aptly called by a great civilian, legum leges. Ancient wisdom and science were

(c) Dig. 50, 17.

(a) In Wood's Institutes of the Civil Law, b. 3, ch. 1, p. 207, there is a collection of the most useful and practical rules of the civil law to be observed in the interpretation of contracts.

(b) It is entitled, Regulæ et Sententia Juris, ex universo corpore Juris Civilis sparsim collectæ, et in ordinem alphabeticum digestæ; and it is the production of J. Hennequinis, a learned doctor of the civil law.

(c) Bacon's Works, vol. vii. p. 439. The aphorisms relate specially to the dignity of the law; to defective and omitted provisions; to the obscurity and uncertainty of law; to retrospective and cumulative laws; to the new digests of the laws; to the force and value of precedents; to the influence of commentaries and forensic opinions, &c