Rights under the Bill of Lading, how modified. from him, or transferred without his authority, a subsequent bond fide transferee for value cannot make title under it as against the shipper of the goods." The bill of lading only represents the goods, and it is when the transfer of the symbol operates a transfer of what is represented, that the statute then operates a transfer of the contract to the same person.' If a foreign merchant, buying to order, ships the goods "on account and risk" of the consignee, but takes a bill of lading from the master deliverable to his own order, and transmits it unindorsed to the consignee, the property in the goods being already in the latter, he is entitled to possession of them on their arrival, but not to call on the master to deliver them to him; if the master, however, contrary to his duty, delivers them to the consignee, the latter is not afterwards liable for conversion of them at the suit of the consignor.3 In this case of Coxe v. Harden, as also in that of Gurney v. Behrend, there was notice to the vendee, in the letter containing the invoice, that the vendor had drawn upon him for the amount, but in terms which could not be construed into a condition precedent or subsequent; and it made no difference that in the latter case the indorsed bill of lading reached the vendee through the intervention of a firm "to whose protection" the shipper's draft on the vendee was commended by the same letter that conveyed the bill of lading." These cases differ in this particular from that of Walley v. Montgomery. The invoice, there, was "for account and at the risk" of the vendee, who received along with it an indorsed bill of lading, but the letter accompanying both required the acceptance of a bill of exchange for the amount, in terms which to the Court appeared to be a condition subsequent; but as the vendee had offered his acceptance, according to the terms of the letter, he recovered against an agent of the 1 Per Lord Campbell, C. J., Gurney v. 2 18 & 19 Vict. c. 111. 3 Coxe v. Harden, 4 East, 211, 217, 218. Gurney v. Behrend, 3 E. & B. 622; 23 L. J. (Ex.) 265; Brown v. Hare, 3 H. & N. 484; 27 L. J. (Ex.) 372, S. C. 5 See also Key v. Cotesworth, 7 Exch. 595; 22 L. J. (Ex.) 4, S. C.; Groning. Mendham, 5 M. & Sel. 189. Walley. Montgomery, 3 East, 585. vendor who had taken possession of the cargo under another bill of lading, and had demanded payment in cash. If a merchant abroad buys goods, as agent, but with his own money, for another in this country, and ships and invoices them "on account of" the other, upon whom he draws for the amount, he thereby vests the general property in his principal ; but by the transfer of an indorsed bill of lading, deliverable to himself, with power of sale over the goods to the holder of the bill of exchange, in order to secure the payment thereof, he vests in the latter a special property in the cargo, which is a good answer to an action by the principal, for conversion of it, upon non-payment of the bill of exchange.' Where goods were bought to order, and shipped on board a vessel, chartered and sent by the vendee, but it was a term of the contract that he should accept bills for the goods, and he refused to do so, compliance therewith was held a condition precedent to the property vesting in him, this appearing to be the intention of the parties, not only by the contract, but likewise by the circumstance of the shipper having transmitted to his agent the only indorsed bill of lading to secure performance of the condition. Where the bill of lading made the goods deliverable-to J. S. if he should accept and pay a bill of exchange,—if not, to the holder of the said bill of exchange; and J. S. accepted the bill, and indorsed the bill of lading for valuable consideration, but did not pay the bill of exchange when due, it was held that the property in the goods vested in the holder of the bill of exchange upon dishonour of it, and that he might sue the indorser of the bill of lading for conversion of the goods. By a selection of goods, which the vendor is to supply in performance of a contract of sale by sample, and which he ships, under a bill of lading "deliverable" to himself, sending the charter-party and an unindorsed bill of lading to the vendee, he does not vest the property in the latter, and it is still open to him, on a complaint that the cargo does not answer the Jenkyns v. Brown, 19 L. J. (Q. B.) 286; and the like is a good defence for the master who delivers to the shipper being the holder of the bill of lading, notwithstanding the payment of freight at the shipper's request by the consignee, Sheridan v. The New Quay Company, 28 L. J. (C. P.) 58. 2 Brandt v. Bowlby, 2 B. & Ad. 932. 3 Barrow v. Coles, 3 Camp. 92. sample, to carry away the bill of lading and indorse it to another, so as to vest in him the property and a further right of action for part of it already delivered to the prior vendee.' The case is not altered by payment of part of the price, and delivery of the goods into a vessel chartered and expressly sent by the vendee to receive them, if the vendor have the bill of lading made "deliverable" to himself, and indorse it over to another." But where a return consignment of goods was shipped on board the consignee's own vessel "on consignee's account, as consignee's goods, and to be delivered to consignee," and the consignor afterwards deceived the master into signing bills of lading deliverable to or his order, which he indorsed and sent to this country with bills of exchange, requiring the acceptance of these by the consignee, as the condition of his obtaining the cargo, it was held that the property had already vested absolutely in the consignee, and was not divested by his refusal to accept the bills of exchange. Where there is no contract of sale with the consignee, and he is merely under advances for the estate of which the cargo forms part of the produce, no property vests in him by the shipment thereof on board his vessel, although it be under bills of lading "deliverable" to him, and he insure the cargo by request of the shipper; and it is still in the power of the latter, by special indorsement of the bill of lading and transfer thereof to another hand, to require the acceptance of bills of exchange as the condition of his obtaining the consignment.* Upon a purchase of cotton, made at the request and on account of B. & Co., at Liverpool, and invoiced "by order and for account of B. & Co., there, and to them consigned," there was a shipment of it on board B. & Co.'s own vessel, under a bill of lading deliverable " to order or to our assigns, paying for freight for the cotton nothing, being owner's property," and the shipper drew bills on B. & Co., which he sold, delivering therewith, by way of security, a bill of lading indorsed " deliver the within to the Bank of Liverpool or order," it was held that the property did not vest absolutely in B. & Co. upon the cotton being delivered on board under such circumstances; that 1 Wait v. Baker, 2 Exch. 1. 2 Ellershaw v. Magniac, 6 Exch. 570. 3 Ogle v. Atkinson, 5 Taunt. 759. Mitchel v. Ede, 11 A. & E. 888. the clause in the bill of lading stating the goods to be owner's property, was not, standing where it did, a warranty, or a representation with any binding effect; and that the shipper by his indorsement of the bill of lading to the bank had not divested himself of his property in, or possession of, the goods so as to deprive him of the right of stopping them in transitu after the bankruptcy of B. &. Co.' Subject to the general principle of these decisions the following distinctions, taken in an early case, and recognised in recent times,' are of admitted authority as general rules. "If goods by bill of lading are consigned to A., A. is the owner, and must bring the action against the master of the ship if they are lost; but if the bill be special, to be delivered to A. to the use of B., B. ought to bring the action; if, however, the bill be general to A., and the invoice only shows that they are upon the account of B., A. ought always to bring the action, for the property is in him, and B. has only a trust." Where bills of lading, constructively of the same import, and for the same goods, are in the hands of different holders, whose equities are equal, possession is determined in his favour who has the legal title. Where, therefore, a Jamaica planter procured bills of lading to be signed by the master, one making the goods deliverable to his agent in this country, and two deliverable to the shipper himself, and he indorsed the latter two to A. B., in this country, forwarding also the remaining one to his agent, who was informed of the indorsement of the others, and who nevertheless indorsed the bill of lading sent to him over to C. D., it was held first, that the agent being for the purposes of law identical with his principal, all the bills of lading were constructively deliverable to the shipper; and secondly, that the first legal title vested in A. B. by the indorsement of the bills of lading to him, and he was therefore entitled to possession of the cargo, although C. D. had been the first to claim it. A statement in the bill of lading that the ship is to sail Turner v. The Trustees of the Liver pool Docks (in error), 6 Exch. 543. Marlett, 1 Ld. Raym. ? Evans v. 271. 3 Per Best, J., in Sargent v. Morris, 3 B. & Ald. 277, 282. See Pinder v. Wilks, 5 Taunt. 612. 4 Caldwell v. Ball, 1 T. R. 205. with convoy, is a warranty, and breach of it will entitle the shipper, who on the faith of it has insured with warranty to sail with convoy, to recover any loss that he sustains thereby.' We have now ascertained the nature and effect of a bill of lading, and what parties under it are entitled to receive posses sion, or, being deprived of that, what remedies are open to them at law. Questions of freight and demurrage, and ques tions arising under the general exception of risk, both upon bills of lading and charter-parties, remain still to be considered, and will receive attention in the chapters that follow. 1 Magalhaens v. Busher, 4 Camp. 54; Sanderson v. Busher, 4 id. 54 n. See ante, p. 336. |