of the Supreme Court of the United States, in the case of The Idaho,' said: "We do not say that a title to personal property may not be created between the issue of a bill of lading therefor and its delivery to the ship, which will prevail over the master's bill, but, in the absence of any such intervening right, a bill of lading does cover goods subsequently delivered and received to fill it, and will represent the ownership of the goods." Property may be delivered on board a vessel so as to be bound by a previously signed bill of lading and to become the subject on which it shall operate, at any time while the vessel is taking in her cargo for the voyage contemplated, as described in the bill, and before she sails upon it. This rule is probably unexceptionable, as stated in the terms used, in its application to ocean transportation, but in the case of Halliday v. Hamilton3 a still greater latitude was allowed in the time and mode of delivery to satisfy the terms of the previously issued bill and give a valid title thereunder. In that case the shipper, a resident of St. Louis, received at that place from the agent of a steamer about to go down the Mississippi River to New Orleans, a bill of lading for merchandise lying at a landing on the river more than a hundred miles below the point of departure, consigned to a party in New Orleans. The steamer stopped at the designated point and took the goods aboard. This was held to constitute a valid transfer of the property to the consignees, as against an unpaid vendor of the goods, who issued an attachment subsequently to such delivery. § 437. This retroactive effect of a bill of lading is not prevented by the existence of a statute which prohibits the issuance of a bill before the receipt of the goods. Such a statute does not forbid the curing of an illegal bill by supplying goods, the receipt of which has been previously acknowledged. If held to make a delivery of goods to fill a fraudulent bill of lading inoperative for that purpose, it would be rendered a means of furthering the fraud it was designed to prevent.* 1 93 U. S. 575. Rowley v. Bigelow, 12 Pick. 307. 3 11 Wall. 560. The Idaho, 93 U. S. 575. CHAPTER XXXII. THE NEGOTIABILITY OF THE BILL OF LADING. The bill is not "negotiable" in the | The construction of statutes relating ordinary sense of that term, § 438. The nature of the interest or title of which the bill is a muniment, §§ 439, | 440, 441, 442. Statutes relating to the negotiability of bills of lading, §§ 443, 444, 445, 446, 447, 448, 449, 450, 451. to the negotiability of the bill, §§ 452, 453, 454. Rights of holders of different parts of a bill issued in sets, §§ 455, 456, 457, 458, 459. § 438. Ir may be readily gathered from the principles already discussed that the bill of lading cannot be regarded (unless by virtue of statutory enactment) as an absolute muniment of title, i. e., a document that vests in its holder a right of possession which cannot be assailed or defeated. This is true in many instances although the holder obtained the bill in good faith and for a valuable consideration. The negotiability of the bill has been the subject of numberless discussions involving the rights of the holder; but the word "negotiable," except where the law-making power has abrogated the rules of the common law and mercantile usage, is entirely out of place in such controversies unless stripped of its ordinary significance. A large number of dicta have been uttered by eminent authorities in assertion of the negotiability of the bill of lading, but no case can be found, unless arising under a special statute, in which a bill of lading has been treated as an instrument which is negotiable in the same sense as bills of exchange and promissory notes are negotiable. All broad assertions of the negotiability of the bill of lading, when examined in the light of their context and of their actual application to the very cases in which they were unguardedly made by the court, will be found equivalent merely to a statement that the bill is transferrable by indorsement and delivery and that such indorsement and delivery transfers to the indorsee or holder such rights to, or property in the goods as it was the intention of the parties, gathered from all the circumstances, to pass. This, except, as before stated, in those cases where a larger effect has been given to such transfers by statute, is the broadest statement of the "negotiability" of the bill of lading which is warranted by the cases. A review of particular authorities to establish the negative proposition that by the commercial law these instruments are not negotiable in the ordinary sense of that term, is neither feasible nor necessary. Its correctness is sufficiently manifested as a necessary corollary of the discussion of particular questions arising out of the issuance or transfer of the bill. To hold that the bill has negotiability of the broad character sometimes claimed for it is to hold that there can be no such thing as an ineffectual indorsement of it, whereas, as the succeeding discussion shows, no title is conveyed by the indorsement and delivery of a bill of lading, even to a bona fide purchaser for value, where the indorser had none. § 439. The discussion of the negotiability of the bill of lading has involved, not only the question as to the superiority of the holder's title to those of other claimants of the goods, but also the question as to the extent and character of his ownership or interest. The answer to this question is found in the statement of the effect of transferring a bill, found in the preceding section. The character of the transferree's interest in the goods represented by the bill of lading is that intended by the parties or implied by law from the particular circumstances of each transaction. There is nothing in the possession of the bill which can give to its holder greater or higher rights over the property than were intended in the express or implied contract under which it was transferred. Even when there are no conflicting claims to the property, the mere transfer of the bill of lading does not pass the complete legal ownership so as to impose upon the transferree all the liabilities with respect to the property which would attach to the ownership of an ordinary purchaser, or to invest him with all the latter's rights. § 440. The language of opinions from the time of that deliv ered in Lickbarrow v. Mason' to the present day, as well as much of the phraseology in contemporary text-books, has been of the broadest character in stating the effect of the transfer of the bill of lading to be the passing of "the property in the goods,"" the complete legal ownership,"" the absolute legal title,” etc. Here, too, a careful examination of the cases themselves will disclose the fact that the principles thus sweepingly enunciated were laid down with a particular question or set of questions in view and are not borne out by the decisions themselves as of universal application. As between an unpaid vendor and the vendee's bona fide indorsee, or as between a bona fide indorsee and other claimants, the transfer of the bill undoubtedly passes property in the goods as effectually as would its manual delivery, but the transferree has only such property in the goods as it is necessary to confer upon him in order to effectuate the purpose of the transfer. An agent to whom the bill is indorsed to enable him to effect a stoppage in transitu, or a banker to whom six thousand dollars worth of goods may be pledged to secure a loan of five thousand cannot be considered as vested with such "complete legal ownership" as they would have if their contract with the transferree were one of purchase and sale. So, where the extent of the transferree's property in the goods becomes a question involving the extent of his liabilities with respect to the goods instead of his rights, the proposition that the transfer of the bill passes "the absolute legal ownership" is found to be inaccurate. § 441. This very clearly appears from the cases arising upon the English Bills of Lading Act, 18 and 19 Vict. C. 111, or, indeed, from the cases arising previously in which it was held that the transfer of a bill of lading did not transfer the contract so that upon a refusal to deliver the goods the transferree might sue for a conversion, but could bring no action upon the contract contained in the bill and, on the other hand, assumed none of the liabilities created by the contract, as for freight." The statute, after reciting the pre-existing law and providing 1 5 T. R. 683. Howard v. Shepherd, 9 C. B. 297; Thompson v. Dowing, 14 M. & W. 403; Sargent v. Morris, 3 B. & Ald. 277; Sanders v. Vanzeller, 4 Q. B. 260; Tindall v. Taylor, 4 El. & Bl. 219. that every indorsee of the bill of lading " to whom the property in the goods therein mentioned shall pass, upon or by reason of such indorsement," shall have vested in him the right of suit, etc., further provides that he "shall be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." The statute itself, it is to be observed, in specifying what indorsees are to be included within its purview, gives implied recognition to the fact that a transfer of the bill of lading does not of itself invariably transfer the complete legal ownership of the goods, since it limits its application to indorsees "to whom the property shall pass," and the same fact has been distinctly recognized by the courts in interpreting the statute. § 442. The latest important decision upon this statute, and as well the latest important English discussion of the effect of the transfer as passing property in the goods, independently of the statute, is that contained in Sewell v. Burdick,' decided in the House of Lords in 1884. In that case goods were shipped under bills of lading making them deliverable to the shipper or assigns. After the goods had arrived and had been warehoused, the shipper indorsed the bills of lading in blank and deposited them with Sewell as security for a loan. Sewell never took possession of or dealt with the goods. The ship-owners brought an action against Sewell for freight. It was held that the "property" in the goods did not pass to Sewell within the meaning of the Bills of Lading Act, so as to make him liable for the freight. The previous interpretations of the statute were reviewed and it was shown to be by them established that the transferree obtains the complete legal ownership of the goods, which under the act gives him the rights and imposes upon him the liabilities of an absolute proprietor, not by virtue of the indorsement or delivery of the bill, but by virtue of an election, which he might or might not make "to complete his potential and inchoate title by taking possession of the goods, and so placing himself toward the ship-owner in the position of proprietor." The "property" passed to the transferree was held to be spe 1 L. R. 10 H. L. 74. 2 Fox v. Nott, 6 H. & N. 637; Smurthwaite v. Wilkins, 11 C. B. (N. S.) 847; The Figglia Maggiore, L. |