however, although symbolical of the property represented thereby, and like the property it represents, may be transferred by delivery, is unlike commercial paper in this, that the assignee cannot acquire a better title to the property thus symbolically delivered than his assignor had at the time of the assignment.'

A bill of lading making the property deliverable to the consignee "or bearer," passes the title to the property described, upon delivery of such bill by the shipper to a holder for value, without notice, as against everybody but a prior assignee for value of another of the set of bills.' The mere insertion of the name of the consignee in the bill of lading passes no right or title to him until delivery of the bill of lading by some one authorized; although the carrier may treat the consignee as the owner of the goods, until notice, either actual or presumptive, that one of the set of bills of lading is held by a pledgee or other holder for value, without notice. A delivery to such consignee, upon the production of an unindorsed bill of lading, is in the absence of such notice, a good discharge to the shipowner, or any one holding the goods, and subject to the same liabilities.* Even where such bill of lading is drawn "to order," a delivery thereof unindorsed is sufficient to pass the title to the property, if such be the intention of the parties to the transfer."

1 1 Emery v. National Bank, 25 Ohio St. 360; Toledo Ry. Co. v. Gil vin, 81 Ill. 511.

Allen v. Williams, 12 Pick. 297; Buffington v. Curtis, 15 Mass. 528; Marine Bank . Wright, 46 Barb. 45; Nathan . Giles, 5 Taunt. 558; Meyerstein v. Barber, L. R 4 H L. 325; Skilling v. Bollman, 73 Mo. 665; National Bank v. Wallbridge, 19 Ohio St. 419; Emery v. Irving Nat. Bank, 25 Ib. 360.

2 Skilling. Bollman, 73 Mo. 665; Allen . Williams, 12 Pick. 297; Buffington . Curtis, 15 Mass. 528.

§383.-THE Pledge of uninDORSED BILLS OF LADING, AS TO THIRD PARTIES.-The pledgee for value, without notice, of a bill of lading, receiving the same by delivery unindorsed, is vested with a title to the property covered by the bill which is preferred to that of a factor or agent of the consignor to whom the goods were consigned, although the consignor be indebted to him for advances made on previous shipments. And where such factor or agent has obtained possession of the goods, and sold the same, a pledgee for value of the bill of lading, who has advanced funds upon a bill of exchange drawn for the purchase money of the goods, the acceptance of which has been refused by the factor or agent, is entitled to an action as against such factor or agent, for the value of the property, or he may ratify the sale, and recover the proceeds. The pledgee's title, re

ceiving a bill of lading unindorsed, is supported as again a creditor of the pledgor who has levied an attachment upon the goods. And also as against an owner of property covered by a bill of lading, who has made a sale and delivery of it to a third person, although the contract required payment before delivery. The third person, having obtained possession, and fraudulently shipped the property, received a bill of lading, which he pledged as collateral security for a bill of exchange, upon which advances were made in good faith, and without notice. The claims of a pledgee for value were supported, where bona fide advances were made before the bill of lading was issued, the property being under control of the pledgee, and the latter subsequently receiving a bill of lading unindorsed."

1 Bank of Rochester v. Jones, 4 N. Y. 497; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 366.

2 Davenport Nat. Bank v. Homeyer, 45 Mo. 145; Allen v. Williams, 12 Pick. 297.

8 Pettit Bush, 334.

v. First Nat. Bank, 4

Michigan Central R. R. Co. v. Phillips, 60 Ill. 190; National Bank v. Dearborn, 115 Mass. 219.

Becker v. Hallgarten, 86 N. Y. 167; Dunbrow v. McDonald, 5 Bosw. 130; Winne v. McDonald, 39 N. Y. 244; Cartwright v. Wilmerding, 24 Ib. 521.

§ 381.-PLEDGES OF BILLS FOR ANTECEDENt Debt and FUTURE ADVANCES.-The transfer of bills of lading by the owner as collateral security for an antecedent debt, without more, constitutes the pledgee a holder for value, in the usual course of business. The negotiation of a bill of lading, with or without indorsement, passes the legal title to the property represented by it, and has the same effect as a delivery of the goods, and is in fact the only delivery which can be made of such property while in transitu; and as a pledge of personal property, with possession, for a pre-existing debt is valid, a pledge of a bill of lading, vesting constructive possession of the property in the pledgee is, under the same circumstances, equally valid.' As said by an English judge, If the pledgee had said, 'I cannot take this bill of lading, as the consideration would be past; do it with the broker next door, and give me his check,' that would be valid; but is it desirable to introduce such niceties into commercial law?" A pledgee of a bill of lading for an antecedent debt is supported as against a vendor's right of stoppage in transitu, and as against subsequent purchasers of the property, for value, without notice, claiming them under a duplicate bill of lading, indorsed, and with actual delivery of the goods. New consideration is sufficient to support a pledge of a bill of lading for an antecedent debt, as an abandonment of threatened legal proceedings, or the surrender of other securities, etc. In jurisdictions where the restricted rule prevails, the transfer of a bill of lading as collateral security for an antecedent indebtedness, without further consideration, will not constitute the indorsee a

1 Skilling v. Bollman, 73 Mo. 665; Tiedman e. Knox, 53 Md. 612; Halsey v. Warden, 25 Kan. 128; Peters v. Elliott, 78 Ill. 325.

Leask v. Scott, L. R. 2 Q. B. D. 376 (Bramwell, J.); overruling on this point Rodger v. Comptoir D'Escompte, L. R. 2 Pr. C. 405; Jewan o. Whitworth, L. R. 2 Eq.

692; Macnee v. Gorst, L. R. 4 Eq. 315; Portalis v. Tetley, L. R. 5 Ib. 140.

Skilling v. Bollman, 73 Mo. 665; Peters v. Elliott, 78 Ill. 325; Halsey v. Warden, 25 Kan. 128.

4 Leask v. Scott, L. R. 2 Q. B. D. 376.

holder for value so as even to preclude the vendor of the goods from exercising the right of stoppage in transitu.'

A pledge of bills of lading was supported upon an agreement to furnish future advances as against other pledgees chargeable with notice of such agreement when making their own advances. A shipment of goods was made by the owner, under an agreement by which the consignee had already advanced funds, and agreed to make further advances upon receiving the bills of lading as security. The legal title to the property vesting in the pledgee under the agreement, a third person, receiving another bill of lading of the same goods obtained by fraud, although before the actual delivery of the first bill to the pledgee, but who made no advances until after knowledge of the pledge of the first bill, could acquire no interest in the proceeds of the property, except as subject to the payment of the subsequent as well as the prior advances of the first pledgee.'

§ 385. AND OF REVERSIONARY INTERESTS IN BILLS OF LADING.-A consignee, or commission merchant, or factor who has pledged a bill of lading as security for a debt which does not exhaust the whole value of the goods, may re-pledge the same for the remainder of its value to a third person, to secure another debt. Notwithstanding the first pledge, the goods or documents of title remain in the control of the consignee o factor being in possession of another person in his behalf, to the extent to which they are not exhausted by such pledge. They are subject to redemption upon the payment of the debt, at maturity, and the principal, after such pledge and re-pledge, cannot withdraw them except upon the equitable terms of discharging the valid claims of the pledgees. Upon a notice of the re-pledge to the first pledgee, and his assent to hold any surplus of the

1 Loeb v. Peters, 53 Ala. 243; Harris v. Smith, 17 N. Y. 249; Lessassier v. Southwestern R. R. Co. 2 Wood's C. C. 35.

Stevens . Boston R. R. Co. 8 Gray, 262.

proceeds for the benefit of the second pledgee, equity can give no relief to the principal as against the pledgees. In the event of intervening bankruptcy, the principal may prove his claim against the estate of the consignee or factor.1

CHAPTER XL.

THE PLEDGEE'S TITLE, AS AGAINST CARRIER.

§386. Delivery of goods essential to valid bill of lading.

387. Bill of lading valid, upon subsequent delivery.

388. Without delivery, no title acquired by innocent pledgees,

389. No recovery by pledgee, as against carrier.

390. The exceptional rule in New York, under equitable estoppel.

391. The like rule applied in Kansas and Nebraska.

392. The bill of lading, as a receipt, open to explanation.

393. Estoppel of carrier to explain receipt as against pledgees.

394. The pledgee's rights against carrier for non-delivery.

395. Notice to carrier, when required of pledgee.

396.

The pledgee of the first indorsed of bills preferred.

§ 386. DELIVERY OF GOODS ESSENTIAL TO VALID BILL OF LADING.-The delivery of goods represented by a bill of lading to a carrier by land or water is of essential importance to give the bill of lading validity. Without such delivery, in fact, no bill of lading, binding upon the principal, can be issued by any master of a ship or agent of an inland transportation company. The two-fold character of the bill of lading enforces the rule, as it purports to be a receipt for the property described therein, and a contract to carry and deliver the same, according to its terms. Such contract can have no existence in the absence of an actual receipt of goods. The entire bill of lading in such event is

1 Portalis v. Tetley, L. R. 5 Eq. 140.