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§ 225. A corporation may waive its lien upon a member's stock. A statute of the state of Pennsylvania provides that the stock of a bank shall be transferable on the books of the corporation only in such manner as the by-laws shall ordain; but that stockholders indebted to the bank shall not transfer their stock without paying or securing the debt.' Certain shares of the stock of a state bank were transferred by a banking firm as collateral security, and the pledgee sent the certificate to the cashier, and requested a new certificate. The cashier of the bank, who was also a member of the banking firm, replied by letter, agreeing to transfer the stock in a short time, and credited the pledgee with the stock on the books of the bank. The firm shortly afterwards failed, with a large indebtedness to the bank, which thereupon refused to transfer the stock. On a bill in equity to compel such transfer, it was held that the act of the cashier, which was within his customary duties, was binding upon the bank, and effected a waiver of its lien upon the stock." Mr. Justice Matthews, delivering the opinion of the court, said: "A complete transfer of the title to the stock upon the books of the bank, it is not doubted, would have the effect to vest it in the transferee, free from any claim or lien of the bank. The consent of the bank, made necessary to such transfer, is the waiver of its right, as its refusal would be the assertion of it. The transfer, when thus consummated, destroys the relation of membership between the corporation and the old stockholder, with all its incidents, and creates an original relation with the new member, free from all antecedent obligations. This legal relation and proprietary interest, on which it is based, are quite independent of the certificate of ownership, which is mere evidence of title. The complete fact of title may very well exist without it. All that is necessary, when the transfer is required by law to be made upon the books of the corporation, is, that the fact should be appropriately recorded in some suitable register or stock list, or otherwise formally entered upon its books. For
1Act of April 10, 1850, Bank Act, Bank, 105 U. S. 217, 222, 4 Morrison's art. 10, § 10. Trans. 400, 14 Rep. 230.
2 National Bank v. Watsontown
this purpose the account in a stock ledger showing the names of the stockholders, the number and amount of the shares belonging to each, and the sources of their title, whether by original subscription and payment, or by derivation from others, is quite suitable, and fully meets the requirements of the law." Even on the supposition that not the legal title, but only an equity based on an executory contract for a transfer, passed to the pledgee, it was further held, in the case last referred to, that the bank had, by its own laches, lost the legal right to assert its lien, for if the bank had intended to insist on its legal rights, and assert its lien, the time to do this was when the pledgee made his claim for a transfer of the stock; but, so far from doing this, it permitted the pledgee to rest in the belief that the right to transfer the stock would not be questioned, its action being equivalent to a declaration that it had no adverse claim. Therefore, upon the failure of the stockholder, the bank can not be permitted to assert a lien, the enforcement of which would operate as a fraud upon the pledgee.
§ 226. Damages for refusing to make transfer.-If a pledgee of the stock of a bank applies to the cashier to have a transfer made to himself upon the books, and this officer refuses to allow the transfer, on the ground that the pledgor is indebted to the bank, and it appears that the bank is not entitled to such a lien, upon its failure, and the appointment of a receiver, the pledgee may recover damages for the loss sustained by him.'
1 Case v. Bank, 100 U. S. 446.
PLEDGES OF BILLS OF LADING.
I. Bills of lading are symbols of property, 227-232.
II. How far negotiable instruments,
VI. A pledgee's rights as against the consignor, 266, 267. VII. A pledgee's rights as against the consignee, 268-272.
III. How far binding upon the car- VIII. A pledgee's rights as against rier, 245-254.
the carrier, 273-277.
IV. Whether security for acceptance
IX. Rights of pledgees of different parts of the same bill of lading, 278, 279.
or payment, 255–260.
V. How bills of lading may be
I. Bills of Lading are Symbols of Property.
§ 227. In general.—Bills of lading or receipts for goods by common carriers have become a very important, as well as a very common form of collateral security. Such bills or receipts represent the goods themselves, and the delivery of such bills or receipts as collateral security generally amounts to a symbolical delivery in pledge of the goods themselves; yet the use of bills of lading and shippers' receipts as security gives rise to many questions and considerations wholly different from those that arise under pledges of goods in the ordinary mode of an actual delivery of the goods to the pledgee; and therefore, this use of the documentary evidence of property in the possession of the carrier is entitled to treatment as a separate branch of the subject of collateral securities.
§ 228. An effectual delivery of goods may be made in pledge, by transfer of a bill of lading, or shipping receipt.' The trans
'Lickbarrow v. Mason, 1 H. Bl. 35, ed. 753; Newsom v. Thornton, 6 East 360; 1 Smith's Lead. Cas. 8th Eng. 17, 41; Hatfield v. Phillips, 9 M. & W.
fer of a bill of lading as collateral security is regarded not
only as passing the legal title to the property, but as constituting an actual delivery and change of possession of the property. Such bill of lading or receipt may be made out directly to the pledgee, or may be indorsed to him. If not made out directly to him, it should be indorsed to him, for the sending it unindorsed by letter containing no words of transfer, might give the person receiving it no claim to the property. A bill of lading properly indorsed to the consignee who has made advances, is evidence of a delivery of the property, although it be signed by one who was not in fact the master of the vessel, and had no authority to sign it, but was supposed by the consignor to be the master, and was personally acting as such.3
§ 229. The delivery of a bill of lading is a constructive or symbolical delivery of the property represented by it. The
647; Meyerstein v. Barber, 2 L. R. C. P. 38, 45; Barber v. Meyerstein, L. R. 4 H. L. 317; Douglas v. People's Bank, 86 Ky. 176, 5 S. W. Rep. 420; Petitt v. First Nat. Bank, 4 Bush (Ky.) 334; May v. McGaughey, 60 Ark. 357, 30 S. W. Rep. 417; Neill v. Rogers Bros.' Produce Co., 41 W. Va. 37, 23 S. E. Rep. 702.
1 First Nat. Bank of Cincinnati v. Kelly, 57 N. Y. 34.
So by statute in Georgia: 2 Code son, 54 Tex. 593; Taylor v. Turner, 87 1895, § 2956. Ill. 296; Petitt v. First Nat. Bank, 4 Bush (Ky.) 334; First Nat. Bank v. Northern R., 58 N. H. 203; Farmers' & Mechanics' Nat. Bank v. Logan, 74 N. Y. 568; Means v. Bank of Randall, 146 U. S. 620, 627, 13 S. C. Rep. 186; Dows v. Nat. Exch. Bank, 91 U. S. 618; Marine Bank v. Fiske, 71 N. Y. 353; City Bank v. Rome, W. & O. R. Co., 44 N. Y. 136; Security Bank v. Luttgen, 29 Minn. 363, 13 N. W. Rep. 151; Holmes v. German Security Bank, 87 Pa. St. 525; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 366, 18 Am. Rep. 299; Dodge v. Meyer, 61 Cal. 405, 416, 10 Pac. Coast L. J. 169;
2 Stone v. Swift, 4 Pick. (Mass.) 389, 16 Am. Dec. 349; and see Merchants' Nat. Bank v. Bangs, 102 Mass. 291; Forbes v. Boston & Lowell R. Co., 133 Mass. 154.
3 Prince v. Boston & Lowell R. Co., 101 Mass. 542, 100 Am. Dec. 129.
24 Atl. Rep. 705; Skilling v. Bollman, 6 Mo. App. 76; National Bank of Green Bay v. Dearborn, 115 Mass. 219; Forbes v. Boston & Lowell R. Co., 133 Mass. 154; First Nat. Bank v. Dearborn, 115 Mass. 219; Hathaway v. Haynes, 124 Mass. 311; First Nat. Bank v. Crocker, 111 Mass. 163; McCants v. Wells, 4 S. C. 381; Adoue v. Seelig
Barber v. Meyerstein, L. R. 4 H. L. 317, 326, L. R. 2 C. P. 38, 661; Bank of Rochester v. Jones, 4 N. Y. 497, 55 Am. Dec. 290; Cayuga Co. Nat. Bank v. Daniels, 47 N. Y. 631; Harrison v. Mora, 150 Pa. St. 481,
person who takes a bill of lading for a valuable consideration, whether this arises at the time, or rests upon a previously existing debt, has the right to the property without taking actual possession of it, or doing any further act to perfect this title.' The bill of lading stands in place of the property covered by it. It represents the property. "When the right of possession is changed by a sale or pledge of the property itself, the transfer of the bill of lading operates as a change of possession of the property, the carrier in the meantime being the custodian for the real owner or party in interest. While a bill of lading is not a negotiable instrument in the sense in which a bill of exchange or promissory note is negotiable, yet as the representative of a valuable commodity it is assignable to the party entitled to control the possession of that commodity, to the same extent and for the same purposes as the property itself would be if corporeally present. Inasmuch, therefore, as these instruments are capable of performing very important functions in commercial transactions, innocent holders thereof for value ought to receive the same protection as if they held possession of the property itself.'
A cotton factor in Galveston procured an advance of money from a banker on certain cotton in press, for which he gave his order to deliver the cotton to a vessel then in port loading for Liverpool. Notice of the order was given to the press, and the master of the vessel made and delivered to the cotton factor, a bill of lading for the cotton, which the factor indorsed and delivered to the banker, with a bill of exchange on Liver
Brent v. Miller, 81 Ala. 309, 8 So. Rep. 219; Glidden v. Lucas, 7 Cal. 26; Tison v. Howard, 57 Ga. 410; Michigan Cent. R. Co. v. Phillips, 60 Ill. 190; First Nat. Bank v. Harkness, 42 W. Va. 156, 168, 24 S. E. Rep. 548, quoting text; Neill v. Produce Co., 41 W. Va. 37, 56, 23 S. E. Rep. 702, quoting text.
618; Skilling v. Bollman, 6 Mo. App. 76; Farmers' & Mechanics' National Bank v. Logan, 74 N. Y. 568; Grove v. Brien, 8 How. 429; Adoue v. Seeligson, 54 Tex. 593; Forbes v. Boston & Lowell R. Co., 133 Mass. 154; First Nat. Bank v. Northern R., 58 N. H. 203.
2 Stone v. Wabash, St. Louis & PaDows v. Nat. Exch. Bank, 91 U. S. cific R. Co., 9 Bradw. (Ill.) 48. JONES PLEDGES-16