ance of the goods is within the scope of his agency and no special circumstance is suggested in the case before me." As to the bill of lading, which in this case had been drawn in quadruplicate, the Court said: "This instrument is not per se incontrovertible evidence that the property specified has passed to the holder; . . . . it does not prove that the shipper is the owner. It may be that one of these bills of lading has been delivered at an earlier date to some person other than the underwriter, which other person would, on the ground of his earlier possession of the bill of lading, have a prior title to the goods," citing Barber v. Meyerstein' and Conturier v. Hastie.2 It was accordingly held that the defendants were entitled to require evidence of a discharge from the original owners.

§ 419. In American prize courts a bill of lading consigning goods to a neutral, though unaccompanied by an invoice or letter of advice, is, while not in itself sufficient evidence to enable a claimant thereunder to obtain restitution, a sufficient foundation to permit the introduction of further proof, but both in cases involving the rights of neutrals on the high seas and in those involving the insurance of property lost or captured the bill of lading is not the only evidence nor always the best evidence of ownership. Its authenticity or truth may be attacked by either party. It is with great reason that in prize cases a comparatively slight importance should be attached to the bill of lading as an evidence of ownership, since it is so frequently the case that during war, goods shipped by sea are given a false apparent ownership for the very purpose of saving them from confiscation in case of capture. The bill of lading for an outward-bound cargo is of course no evidence of any title in the return cargo.7

1 L. R. 4 H. L. 317. 25 H. L. C. 673.

3 The Friendschaft, 3 Wheat. 14. 4 United States v. Jones, 3 Wash. C. C. 209; The St. Jose Indiano, 1 Wheat. 208.

5 Maryland Ins. Co. v. Ruden, 6 Cranch, 338; Blagg v. Phoenix Ins. Co., 3 Wash. C. C. 5.

6 It was said, however, in The St. Jose Indiano, 1 Wheat. 208, that "in general the rules of the prize court as to the vesting of property are the same with those of the common law;" p. 212.

7 Beale v. Pettit, 1 Wash. C. C. 241.

420. The character and effect of a bill of lading, as that of a representative equivalent of specific goods, is well exemplified in the cases relating to sales of goods as affected by the Statute of Frauds. The delivery of the bill of lading to the consignee is held to be a delivery sufficient to satisfy the statute. In general, where goods are bought to be sent to the buyer, delivery to a carrier, either general or specially designated by the buyer, is a sufficient delivery and vests title to them in the latter, although it must be borne in mind that acceptance as well as delivery is necessary. Even a delivery to a carrier designated by the purchaser will not satisfy the statute where the carrier has no authority other than to transport the goods. Where, however, the bill of lading is delivered to the consignee or his representative and accepted, the statute is satisfied. It follows, conversely, that the delivery of a bill of lading to an agent who has no authority to act and its acceptance by him, can of themselves have no force to take the case out of the statute. This rule is laid down in an English case, even where the vendee knew of the receipt of the bill by an unauthorized agent, but did and said nothing to disaffirm the acceptance. So, if the buyer obtains a bill of lading from the seller, without any intention on the part of the seller to deliver it and insists on retaining possession of it against the remonstrance of the seller, he cannot avail himself of it to bar the operation of the statute."

§ 421. The office of the bill of lading, not only as a means of safely retaining and securing the owner's title while the ownership and the immediate possession of the property are secured, but as an instrument for legally transferring either the ownership or the right to possession upon the termination of the transit, or both, is thoroughly established. It is an undoubted general principle that as effective a transfer of title and of the right to delivery may be made by the owner's transfer of the bill of lading as could be made by a physical delivery of the goods themselves. "A cargo at sea, while in the hands of the

Audenried v. Randall, 3 Clifford, 99; Rodgers v. Phillips, 40 N. Y. 527. 2 Quintard v. Bacon, 99 Mass. 185.

363.

Meredith v. Meigh, 2 El. & Bl.

Brand v. Focht, 1 Abb. App. 185.

carrier, is necessarily incapable of physical delivery. During this period of transit the bill of lading by the law merchant is universally recognized as its symbol and the indorsement and delivery of the bill of lading operates as a symbolical delivery of the cargo. Property in the goods passes by such indorsement and delivery of the bill of lading, whenever it is the intention of the parties that the property should pass, just as under similar circumstances the property would pass by an actual delivery of the goods.. . It is a key which in the hands of the rightful owner is intended to unlock the door of the warehouse, floating or fixed, in which the goods may chance to be."1

§ 422. When a bill of lading may be rightfully demanded in accordance with the terms of a contract of sale, the vendee of goods is entitled to it, as soon as it is transmitted to the consignors, or their agents, at the terminus of the transit, without reference to the arrival or unloading of the cargo. Where it is the evident intent of the contract that the bill of lading shall be sent as soon as it can be, a refusal of the vendor to deliver it within a reasonable time after its arrival, whether the goods themselves have arrived or not, justifies the vendee in rejecting the purchase. The case is of course stronger where there is a specific agreement between a commission merchant who makes advances for the consignor's purchase of the goods shipped and such consignor that the latter shall forward to the former a bill of lading to secure such advance. A transaction of this kind is in fact an equitable pledge of which a court of equity would decree specific performance.3

§ 423. The consignee is not entitled to demand all existing copies of the bill of lading. If only one copy of the bill has been indorsed, the delivery of that copy with the intention to pass the property is all that the vendee is entitled to demand, although the bill has been drawn in triplicate and the remaining copies are not tendered. It seems that he cannot insist that the remaining bills shall be delivered in time for him to forward them so that they may be at the port of delivery either before the arrival of the goods or before charges are incurred

1 Bowan, L. J., Sanders v. Maclean, 11 Q. B. Div. 327.

2 Barber v. Taylor, 5 M. & W. 527.

3 Lutscher v. Comtoir d'Escompte de Paris, L. R. 12 B. D. 709.

in respect to them. He can only demand that the vendor shall make every reasonable exertion so to do.1

§ 424. As a general rule the bill of lading continues to represent the goods only so long as they are in transit. The general principle of the law in dealing with title to personal property, other than that evinced by possession, is that the owner must do all that is within his power to approximate as closely as possible to actual or constructive possession. His title must be evinced by all the indicia possible. Upon this ground it has been held that dock warrants and warehouse receipts are not muniments of title of as high and conclusive an order as bills of lading, the delivery of the former not being equivalent to a delivery of the goods themselves as is generally the case with the latter.2 The two classes of instruments differ from each other in this respect: that when goods are at sea, the purchaser who takes the bill of lading has done all that is possible in order to take possession of the goods,-there being a physical obstacle to his seeking out the master of the ship and requiring him to attorn to his rights, but when the goods are on land there is no reason why a person who receives a delivery order or dock warrant should not at once lodge it with the bailee and so take actual or constructive possession of the goods. Ordinarily the bill of lading becomes functus officio as soon as the goods are landed and warehoused in the name of the holder, who thereupon no longer derives his power to control them from his possession of the bill.'

§ 425. In Meyerstein v. Barber, however, it was held that the vitality of the bill of lading as a muniment of title was not necessarily exhausted as soon as the goods were landed at their destination, but it continued to be a transferable symbol of the property when the goods, though actually landed at a wharf, were subject to a stop order for freight. The bill in that case had been drawn up in a set of three. The first two were indorsed to the plaintiff upon an advance by the latter and the third, thus fraudulently retained by the consignee, was

1 Sanders v. MacLean, L. R. 11 Q. B. Div. 327.

2 Farina v. Horne, 16 M. & W. 119. 3 Blackburn on Sales, 297.

649.

Hatfield v. Phillips, 9 M. & W.

5 L. R. 4 H. L. 317.

subsequently pledged to the defendant for an advance by him. The consignee then obtained a removal of the stop which had been put upon the goods by the ship-owners for freight and the defendant obtained possession under the bill held by him. The case turned upon the question whether the bills of lading had fully performed their office at the time when the plaintiff received them. It was, contended on the defendant's behalf that such was the case. The court held, however, that a bill of lading remains in force, not only until the goods are landed, but until the freight is paid and the whole matter which is the subject of the contract of the ship-owner has been achieved. "When the goods have arrived at the dock, until they are delivered to some person who has the right to hold them, the bill of lading still remains the only symbol that can be dealt with by way of assignment or mortgage or otherwise. As soon as delivery is made, or a warrant for delivery has been issued, or an order for delivery accepted (which in law would be equivalent to delivery), then those symbols replace the symbol which before existed. Until that time bills of lading are effective representations of the ownership of the goods and their force does not become extinguished until possession, or what is equivalent in law to possession, has been taken on the part of the person having a right to demand it."

§ 426. When merchandise is transported to its destination over several lines of railroad or water carriage, the bill of lading issued at the starting-point is not necessarily functus officio upon the arrival of the goods at the termination of the first stage of the transit, but may, by custom or contract, remain in force until the final destination is reached. Thus, in Forbes v. Boston and Lowell Railroad Company, it was proved to be the usual course of business in transporting grain from Chicago to Boston to ship it by water to an intermediate point and thence to Boston by rail. A bill of lading was issued at Chicago, making the grain deliverable to the shipper at the intermediate point. There a railroad receipt was given containing a memorandum, which indicated that the grain was

1 133 Mass. 154.