7 Hen. VI. 22, is cited. The reasons given for such a doctrine, however satisfactory they may have been when they were announced, can hardly command assent now. It is now everywhere held that when the true owner has by legal proceedings compelled a delivery to himself of the goods bailed, such delivery is a complete justification for non-delivery according to the directions of the bailor. Bliden v. Hudson River Railroad Co., 36 N. Y. 403. And so when the bailee has actually delivered the property to the true owner, having a right to the possession, on his demand, it is a sufficient defence against the claim of the bailor. The decisions are numerous to this effect. King v. Richards, 6 Whart. 418; Bates v. Stanton, 1 Duer, 79; Hardman v. Willcock, 9 Bing. 382; Biddle v. Bond, 6 Best & S. 225. If it be said that by accepting the bailment the bailee has estopped himself from questioning the right of his bailor, it may be remarked in answer that this is assuming what cannot be conceded. Undoubtedly the contract raises a strong presumption that the bailor is entitled; but it is not true that thereby the bailee conclusively admits the right of the principal. His contract is to do with the property committed to him what his principal has directed-to restore it or to account for it. Chelseman v. Exall, 6 Exch. 341. And he does account for it when he has yielded it to the claim of one who has right paramount to that of his bailor. If there be any estoppel, it ceases when the bailment on which it is founded is determined by what is equivalent to an eviction by title paramount, that is, by the reclamation of possession by the true owner."

$465. Where the shippers of goods sell them conditionally while lying in a vessel awaiting the commencement of transportation, the fact that they did not give the carrier any notice of the conditional character of the sale, does not warrant the carrier in issuing a bill of lading to one whom he merely understands to be the duly entitled vendee or to one claiming under the latter; nor does it give any validity to the bill as against the right of the true owner. In most ports the custom is well established-and it is believed to be universal-for the carrier to issue the bill of lading only upon the surrender of

1 Brown v. Peabody, 13 N. Y. 121; Blossom v. Champion, 37 Barb. 554.

the lighterman's receipt, which is always retained by the shipper in the meanwhile until the transportation is about to commence, or until he has sold the goods and is ready to deliver symbolical possession. This custom has become so thoroughly settled and so well understood as to rise to the dignity of a legally binding mercantile law. Of it the carrier is bound to have cognizance and a shipper is no more bound to notify him not to transgress it than to warn him against the breach of any other law. It would seem that the same rule should hold in inland transportation and that it is the duty of the railway company or other carrier to deliver a bill of lading only upon the production of the "dray receipt." It follows, therefore, that the holder of a bill of lading which has been issued to one not the true owner of the goods has no stronger title under the bill by reason of the fact that the true owner failed to notify the carrier not to issue it.

$466. The same rule as to notice, of course, holds where the true owner of the goods holds bills of lading as his muniment of title to them. Where, as is frequently the case, the bill is issued in sets of three and different parts come into the hands of different parties, he who by virtue of being the first transferree in good faith and for value is the preferred claimant, is under no obligation to give notice of his title and the holder of that copy of the bill which was transferred by one without title or authority obtains no title which can be maintained against that of the true owner.2

467. The consideration of the question under discussion is not affected by the manner in which the bailor obtained possession. It has sometimes been argued that the carrier is

1 Blossom v. Champion, 37 Barb. 554; Craven v. Ryder, 6 Taunt. 433; Brower v. Peabody, 13 N. Y. 121; Schuster v. McKellar, 26 L. J. Q. B. 281; Thompson v. Trail, 2 Car. & P. 334; Ruck v. Hatfield, 5 B. & Ald. 632.

It is to be noted, however, that these lightermen's receipts are not of such a character that their production in itself warrants the carrier's issuing of

a bill of lading. They are no more negotiable than the bill of lading itself. If the carrier issue a bill of lading to a thief who presents the lighterman's receipt, he remains liable to the true owner. Brower v. Peabody, 13 N. Y. 121.

2 Meyerstein v. Barber, L. R. 4 H. L. 317; Glynn v. East and West India Dock Co., L. R. 7 App. 605; Skilling v. Bollman, 73 Mo. 665.

entitled to interpose the jus terti as an excuse for failing to deliver the goods, only when he has been compelled by legal proceedings to deliver them otherwise or when his shipper obtained the goods by fraud. That the rule which estops him from denying the right of his bailor cannot be invoked where the latter's possession of the bill has been obtained feloniously, admits of little discussion.1 To establish the contrary rule would be to place a premium upon theft. In cases of fraud the rule is equally clear. In Moore v. Robinson, the plaintiff below, Robinson, the true owner of a quantity of cotton, gave to one Carter authority to ship the cotton in his, the plaintiff's, name to the defendants below, Moore & Co., giving him, however, no authority to make the shipment in his own name. This, however, Carter did, obtaining from the railroad company by which he shipped the goods a bill of lading, upon which he obtained advances from Moore & Co., which he appropriated to himself. Robinson brought suit against Moore & Co. for the value of the cotton and it being clear that Carter had fraudulently assumed an ownership which the plaintiff and not he possessed, the court held the plaintiff entitled to recover. So in Saltus v. Everett, where the master of a vessel in which the goods were originally shipped had fraudulently, at an intermediate port, transshipped the goods into another vessel, from the captain of which he obtained a bill of lading in his own name, it was held that a purchaser of a part of the cargo under such bill of lading, though a purchaser for value and in good faith, obtained no title to the goods.

§ 468. Not only in cases of fraud, but also in cases where the shipper actually supposes himself to be the possessor of rights to the property, the rule will be enforced which protects a true owner. "The modern and best considered cases treat as a matter of no importance the question how the bailor acquired the possession he has delivered to his bailee and adjudge that if the bailee has delivered the property to one

1 Brower v. Peabody, 13 N. Y.

121.

2 Moore v. Robinson, 62 Ala. 537; Saltus v. Everett, 20 Wend. 267;

Richardson v. Smith, 33 Ga. (Supplement), 95.

3 62 Ala. 537.
420 Wend. 267.

who had the right to it as the true owner, he may defend himself against any claim of his principal."

In Biddle v. Bond, the Queen's Bench decided that the position of the bailee is precisely the same, whether his bailor was honestly mistaken as to the rights of the third person or fraudulently acting in derogation of them. This case is quoted with entire approval and followed by the Supreme Court of the United States in The Idaho3 and by the New York Court of Appeals in the Western Transportation Company v. Barber.^

469. In accordance with the same principle, it has been held that a special agent authorized to deliver a bill of lading only upon the payment of a bill of exchange drawn against the goods and attached to the bill of lading, cannot bind his principal by a delivery of the bill made without such payment. A party obtaining possession of the bill with the assent of such agent, but without the assent of the principal, acquires no title to the goods as against the latter."

§ 470. The cases under consideration will of course be distinguished from those in which an owner may have deliberately caused a bill of lading to be made out in the name of another for the very purpose of clothing the latter with an apparent ownership. In such a case a bona fide purchaser will undoubtedly be protected,―the principle of estoppel prohibiting the true owner from advancing an adverse claim.

CHAPTER XXXIV.

THE BILL OF LADING AS A MUNIMENT OR AS EVIDENCE OF TITLE IN A CONSIGNEE.

§ 471. THE effect of a consignment of goods generally is to vest the property in the consignee. Where goods are consigned without reservation on the part of the consignor, the prima facie legal presumption is that the consignee is the owner. In other words, the ordinary effect of a bill of lading is to vest in the consignee the legal title to the goods shipped. Without quali