this matter was well expressed by Chief Justice Eyre in the last century; and this policy certainly should not be less liberal now. He says: "I see no reason why we should not expound the doctrine of transfer very largely upon the agreement of the parties, and upon their intent, to carry the substance of that agreement into execution." In an Illinois case the railroad shipping receipt delivered in pledge simply acknowledged the receipt of certain goods from the consignor, without naming any consignee, and stated that "this receipt is not transferable." It was contended that the delivery of this receipt without indorsement did not pass any right to the goods in course of transportation, as against a creditor of the consignor who attached the goods in the hands of the railroad company. But the court held that such delivery of the receipt vested in the pledgee a special property in the goods sufficient to maintain replevin against the officer who made the attachment. As to the provision that the receipt was not transferable, the court say: "It is enough to say, that, whatever the reason of this provision, it must have been, for some purpose, in the interest of the railroad company. As the company intended and undertook to carry and deliver the flour to the consignees, the delivery of the shipping receipt to them, or for their benefit, was only to the strengthening of their right to have the delivery of the flour made to them; and it is not perceived how plaintiffs', the consignees', assertion of right to the property, through a delivery of the receipt, should interfere with any interest of the railroad company, or any object of this provision in the shipping receipt. We do not conceive that it has any significance in its bearing upon the rights of the parties in this suit." In a Massachusetts case it was held that the delivery of a in the discounting of the draft. The fact that the goods were in the custody of the consignees would not prevent this arrangement from having the effect to transfer the title of consignors to the plaintiffs. Whether it should be regarded as a sale, a pledge or a mortgage, there was a sufficient delivery to give to the plaintiffs a special property, which they could enforce by suit against any wrong-doer." 1 Haille v. Smith, 1 B. & P. 563, 570. 2 Peters v. Elliott, 78 Ill. 321, 324, per Sheldon, J. carrier's receipt not negotiable in form, as security for advances, with the intention to transfer the property in the goods, is a symbolical delivery of the goods themselves, and vests in the person making the advance a special property sufficient to enable him to maintain replevin against an officer who afterwards attaches them as the property of the general owner. 1 First Nat. Bank of Green Bay v. Dearborn, 115 Mass. 219, 222, 15 Am. Rep. 92. This case is referred to in the subsequent case of Hallgarten v. Oldham, 135 Mass. 1, 46 Am. Rep. 433, which arose upon a pledge of a warehouse receipt not drawn to order or bearer, which was transferred in pledge by indorsement and delivery. Before any notice of the transfer had been given to the warehouseman, the goods were attached as the property of the general owner. It was held that enough had not been done to give the pledgee a good title as against the attaching creditor. Holmes, J., referring to First Nat. Bank of Green Bay v. Dearborn, said: "In that case the plaintiff discounted Parks & Co.'s draft on Harvey, Scudder & Co. against a railroad receipt, of which the following were the material words: 'Received from R. G. Parks & Co., one hundred barrels of flour consigned to Harvey, Scudder & Co., Boston.' This was delivered to the plaintiff in Wisconsin on the understanding that the property was thereby transferred as security for the advances. Scudder & Co. declined to accept the drafts, and the goods were attached by the defendants. The plaintiff brought replevin, and was held entitled to recover. It will be observed that the document did not run to order, and was not indorsed, so that it could not be argued that the railroad had attorned in advance, and there was no notice to the rail 1 road company, so that it had not made itself the plaintiff's bailee subsequently if ordinary principles were to be applied. It was said, however, that the carrier became the plaintiff's bailee from the time its receipt was delivered. A carrier does stand differently from other bailees in one respect. He has no delectus personarum, but is bound to carry for any one who takes proper steps to make him do so. There is, too, the further circumstance that the usual mode of shipping grain is to draw against it and to get a bank to discount the draft. But it may be doubted whether the suggestion was warranted that a carrier would not ordinarily give up the goods except upon a production and surrender of the receipt. Forbes v. Boston & Lowell R., 133 Mass. 154, 158. And so far as the language might seem to imply that the mere passing of the property as between the parties made the carrier bailee for the plaintiff by the general law of bailment, is too broad. But whatever the scope of National Bank v. Dearborn, we can not apply it as a precedent in the present case, so long as Lanfear v. Sumner, 17 Mass. 110, 9 Am. Dec. 119, stands." For the case of Hallgarten v. Oldham, see §§ 298-302. It seems hardly probable that the narrow doctrine of delivery laid down in Lanfear v. Sumner, and followed in Hallgarten v. Oldham, will be adopted elsewhere. Mr. Justice Ames, delivering the opinion of the court, said: "It is true that a receipt of this kind does not purport on its face to have the quasi-negotiable character which is sometimes said to belong to bills of lading in the ordinary form; neither does it purport in terms to be good to the bearer. But independently of any indorsement, or formal transfer in writing, the possession and production of it would be evidence indicating to the carrier that the bank was entitled to demand the property, and that he would be justified in delivering it to them. There are cases in which the delivery of a receipt of this nature, though not indorsed or formally transferred, yet intended as a transfer, has been held to be a good symbolical delivery of the property described in it.' § 264. A third person by paying a draft drawn against a bill of lading, and receiving the latter as security, becomes vested with the title to the goods represented thereby,' though the bill of lading be drawn to the consignee's own order, and it be delivered without indorsement to the person paying the draft. And if the carrier delivers the goods without his order to the consignee upon whom the draft was drawn, the delivery is wrongful, and the carrier becomes liable for the goods to the holder of the bill of lading." § 265. One who discounts a draft on the faith of a bill of lading delivered with the draft has such a property in the goods that he can maintain replevin against an officer who afterwards attaches them upon a suit against the general owner, or against any other person who holds the goods. It is not necessary for this purpose that the plaintiff should be the absolute owner of the property; it is enough that he has a right of property and of possession to secure payment of the 1 Tiedeman v. Knox, 53 Md. 612. 2 Joslyn v. Grand Trunk R. Co., 51 Vt. 92; Newcomb v. Boston & Lowell R. Co., 115 Mass. 230. 115 Mass. 219, 15 Am. Rep. 92; National Bank v. Bayley, 115 Mass. 228; Gibson v. Stevens, 8 How. 384; Peters v. Elliott, 78 Ill. 321. See, however, First National Bank v. Dearborn, Bissell v. Steel, 67 Pa. St. 443. draft. The right of the shipper is divested by his pledge of the property by delivery of the symbol of it, leaving him only a right in the surplus money which may remain after payment of the draft.2 VI. A Pledgee's Rights as Against the Consignor. § 266. A bona fide holder of a bill of lading put into circulation with the consent of the shipper has a title to the goods freed from the equitable rights of the unpaid shipper to stop the goods in transitu. The vendor's right of stoppage in transitu is defeated by his indorsement and delivery of a bill of lading of the goods to a bona fide indorsee for a valuable consideration, such as a loan of money, without notice of facts on which such right would otherwise exist; for such indorsement and delivery of the bill of lading passes the property to the lender. Thus a purchaser of a shipment of nuts, to be paid for at three months, indorsed the bills of lading as security for a loan made in good faith upon the security. At the time of the application for the loan the borrower was already indebted to the lender, who said he would make the further advance desired, but the borrower must first cover his account. The borrower promised to do this, though he did not name any particular securities, and the lender at once made the further advance. On the subsequent arrival of the ship with the nuts the vendor sought to stop them in transitu, the purchaser having stopped payment;. but it was held that the pledgee had a good title as against the 1 Hieskell v. Farmers' and Mechanics' Nat. Bank, 89 Pa. St. 155. 2De Wolf v. Gardner, 12 Cush. (Mass.) 19, 24, 59 Am. Dec. 165; National Bank of Chicago v. Bayley, 115 Mass. 228; Dows v. Nat. Exch. Bank, 91 U. S. 618; National Bank v. Merchants' Bank, 91 U. S. 92, 95; Lanfear v. Blossman, 1 La. Ann. 148, 153, 45 Am. Dec. 76. 1 H. Bl. 357, 362, 6 East 21; Barber Lickbarrow v. Mason, 2 T. R. 63, 167. 1 vendor. This is the general rule, even when the consideration for the indorsement of the bill of lading is an antecedent debt, and in no part arose at the time the bill of lading was handed to the transferee by the lawful holder. 2 § 267. The vendor's right of stoppage in transitu is not discharged absolutely by his indorsement of the bill of lading by way of security or pledge, but that right must be exercised subject to the charge in favor of such indorsee, who must be paid off before the vendor can assume full control of the goods. After the pledgee has been paid, the vendor stands in exactly the same position as to everybody else, as if there had been no indorsement of the bill of lading by way of security or pledge. The vendor's right of stoppage is not defeated by the pledging of the bill of lading, except as against the pledgee. 1 Leask v. 2 Leask v. Scott, 2 Q. B. D. 376, dissenting from Rodger v. Comptoir d'Escompte de Paris, L. R. 2 P. C. 393. Scott, 2 Q. B. D. 376. Bramwell, L. J., in delivering the judgment of the court, said on this point: "Practically, such a past consideration as is now under discussion has always a present operation. It stays the hand of the creditor. If the plaintiff had agreed on the day the bill of lading was handed to him to give a week's time, there would have been a present consideration. Is it necessary there should be a formal agreement in lieu of that which, whether it would support legal proceedings, as was contended by the plaintiff, or not, was, no doubt, such an understanding that, if the plaintiff had taken proceedings against the borrower the day after he had received the security, he would have committed a breach of faith? *** If the borrower, in this particular case, had said this bill of lading was coming forward, and he would hand it to the plaintiff, then value would have been obtained by means of the bill of lading; so, if he had said generally that he had securities coming forward, and would deposit them; and what is the difference between a promise with such a statement and a promise without it?" Kemp v. Falk, L. R. 7 App. Cas. 573; affirming In re Westzinthus, 5 B. & Ad. 817; Spalding v. Ruding, 6 Beav. 376; Missouri Pacific R. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. Rep. 608. In Georgia it is provided by statute that a bona fide assignee of a bill of lading for a valuable consideration, and without notice that the goods are unpaid for, and the purchaser insolvent, is protected in his title against the seller's right of stoppage in transitu. |