sistent with the conveyance or record. It is a clear case of estoppel by assisted misrepresentation. Recognize that bills of lading, warehouse receipts, delivery orders, dock warrants, transfers of shares, etc., are documents of title in the sense above indicated, and that estoppel applies to them as just pointed out, and mountains of difficulty will disappear.

Such law (although not its method of statement) is quite familiar in its relation to real estate. It is there termed "estoppel by deed," which is said to bind "parties and privies." It has already been treated of at some length,1 and it is recurred to here merely for the purpose of contrasting it with the more comprehensive ground of estoppel above suggested, which, it will be observed, applies whether the subject-matter of the transaction is real or personal estate, whether the document of title is or is not a deed, and whether the sub-purchaser does or does not acquire a "legal" or any estate.2

And probably apart from profound learning upon the subject, this estoppel view of the matter would evoke little opposition. But the accumulation of precedents involving other principles, the diversity and antagonism of those precedents and principles when applied to different sorts of documents of title, and the existence of statutes which proceed upon no principle at all, render the establishment of our suggested method of treatment impossible, or nearly so,-at all events for the present.

We have already seen that in the law of real property the guiding principles are (1) a factitious reverence paid to the "legal" estate with reasoning very "technical and not satisfactory;" (2) mechanical rules as to the possession of the titledeeds; and (3) astonishing juggleries with the word "fraud." We are now to see that the law as to bills of lading hovers between a view of symbolism, and a notion of negotiability with accompanying antagonism to the general law; that in the realm of dock warrants, etc., we have confusion plus distracting statutes, while to share transfers alone has the doctrine of estoppel been at all adequately applied- helped therein by the absence, from so modern a subject, of ancient formulas and perplexing

1 Ch. XV.

2 As to "legal" and "equitable" estates, see ch. XVIII.

3 Ante, ch. XVIIL

4 Ante, ch. XIX.

5 Ante, p. 259.

acts of parliament. It should be added that the American cases are, for the most part, less open to the criticisms of this paragraph than the English.

DIVISION OF THE SUBJECT.

Before entering upon exposition it is very necessary that we should understand exactly what kinds of documents of title we are to deal with, and to justify their inclusion in one chapterfor some of them are not usually thought to be very closely associated. Let us notice four classes:

1. Documents usually referred to as conveyances, whether of lands or goods.

2. Bills of lading.

3. Dock warrants, warehouse-keeper's certificates, warrants or orders for the delivery of goods and other such documents. These will be grouped under the phrase "dock warrants, etc." 4. Certificates and transfers of shares.

1. Conveyances. While it may very well be said that a written document is necessary to the transfer of land, yet in its original purpose a deed was rather intended to be evidence of the transfer than the transfer itself, and its evidential character is still maintained by its form. With regard to such title-deeds we may safely say that they are regarded as evidence of the ownership of the person in whom they show title, and are intended to be representations of that fact to all persons dealing with the grantee. The reason therefore for the estoppel for the grantors, as against persons who purchase upon the faith of such deeds, is very apparent. Let us observe whether the same thing cannot be said of the other documents to which we have referred.

2. Bills of Lading. A bill of lading is a receipt given by a common carrier for the goods shipped; it shortly describes

1 For the purposes of the Factors or purporting to authorize, either by Act, the phrase "document of title" indorsement or by delivery, the pos includes "any bill of lading, dock sessor of the document to transfer warrant, warehouse-keeper's certifi- or receive the goods thereby reprecate and warrant or order for the sented." 52 & 53 Vic. (Imp.), ch. 45, delivery of goods, and any other doc- 1 (4). And see Rev. St. Ont., ch. uments used in the ordinary course 150, § 1 (3). of business as proof of the possession or control of goods, or authorizing

2. This indenture witnesseth."

the goods; indicates the place of shipment and delivery; and usually it contains a number of conditions regulating the obligations of the parties, amongst the rest that certain freight is to be paid. The most notable part of it, for our present purpose, is some such phrase as "deliverable to A. B. or order." 1 A bill of lading is sometimes said to be a contract, and legislation so treats it, while Baron Bramwell declares that the statute is inaccurate:

"To my mind there is no contract in it. It is a receipt for the goods stating the terms on which they were delivered to and received by the ship, and therefore excellent evidence of those terms, but it is not a contract; that has been made before the bill of lading was given."3

Whether a receipt only, or a contract, it is at all events a document that is not intended to be operative merely between the original parties to it. It is intended to be a representation to the commercial world that the goods mentioned in it have been shipped on account of the person to whom they are made deliverable. And when the person to whom it is issued indorses it and hands it over to another person, such action is regarded as a declaration or representation that the transferee is entitled to the goods, and that the transferror has thenceforward no interest in them. In other words, a bill of lading is a document of title, and its indorsement ought to estop a

1 Without some such words a bill of lading is not ambulatory, and no person ought to take it to be a rep. resentation intended to be passed on to others. Henderson v. Comptoir (1873), L. R. 5 P. C. 260; 42 L. J. P. C. 60. See as to bills of exchange and promissory notes, 45 & 46 Vic. (Imp.), ch. 61, § 8; 53 Vic. (Can.), ch. 33, § 8. 2 18 & 19 Vic., ch. 111, § 1.

3 Sewell v. Burdick (1884), 10 App. Cas. 105; 53 L. J. Q. B. 399. But see per Lord Esher in Leduc v. Ward (1888), 20 Q. B. D. 480; 57 L. J. Q. B. 379.

C. P. 606; The Schooner Freeman v. Buckingham (1855), 18 How. (U. S.) 182; Pollard v. Vinter (1881), 105 U. S. 7; Bank of Batavia v. New York (1887), 106 N. Y. 195. Arkansas, California, Dakota, Kentucky, Maryland, Minnesota, Missouri, New York, Pennsylvania and Wisconsin have statutes declaring that bills of lading are negotiable. Porter on Bills of Lading, §§ 443-451. There is some judicial opinion contrary to the text. See Erb v. Great Western Ry. Co. (1882), 3 Ont. App. 456, 459, 468, 483; 5 S. C. Can. 193; Gunn v. Bolckow (1875), L. R. 10 Ch. 491; 44 L. J. Ch. 732.

5" A bill of lading is a transferable document of title." Per Lord Blackburn in Glynn v. East & West India (1882), 7 App. Cas. 644; Hatfield v. Phillips (1845), 12 Cl. & F. 361; Cole v. North Western (1875), L. R. 10 C.

transferror from asserting any interest in the goods as against persons who, upon the faith of the indorsement, have changed their position, just as a conveyance of land estops its grantor.

3. Dock Warrants, etc.- The third class of documents (referred to as dock warrants, etc.) are sometimes in the form of receipts, but sometimes merely as follows:

"Warrant for two cases of lye. Imported in the Hartfell. Entered by Petrocochino, 24 Sept., 1875. Deliverable to Petrocochino or assigns by indorsement thereon.

"N. B. This warrant is the only document issued by us as a legal symbol of these goods."1

2

Such instruments, too, are sometimes called contracts; and although there are usually no express contractual stipulations in them, such as are to be found in bills of lading, the present writer raises no objection to their being so styled. But whether contractual or not, it is quite clear that of these documents also it may be said that they are evidences of title, and intended to be representations of that fact to persons dealing with their holders; they are to goods at rest what bills of lading are to goods in transit.

4. Shares in Companies.- Certificates and transfers of shares are not usually classed with such documents of title as those of which we have been speaking; but they are for our purpose closely associated with them. Corporations issue certificates of shares in order to enable their shareholders the more easily to deal with their shares. These, too, are not merely receipts or contracts, operative only as between the company and the particular shareholder; but are intended as representations to third persons as to the ownership of the shares. A company's certificates of shares, therefore, are documents of title in the same sense as are bills of lading, dock warrants, etc.; that is to say, they are representations by the signers of them as to the owner

P. 363; Merchants' Bank v. Phoenix (1877), 5 Ch. D. 216; 45 L. J. Ch. 418; Michigan v. Phillips (1871), 60 Ill. 198. 1 Seton v. Lafone (1887), 18 Q. B. D. 140; 19 id. 68; 56 L. J. Q. B. 415. See another form in Merchants' Bank v. Phœnix (1877), 5 Ch. D. 205; 46 L. J. Ch. 418.

2 Blackburn on Sales (2d ed.), 415. 3 So long ago as 1817, Dallas, J., said that a dock warrant "is the title deed of the property;" and

Park, J., said: "No man living would have purchased these goods unless the dock warrants had been produced. They were the key to this property." Lucas v. Dorrien, 7 Taunt. 290, 291. In some states warehouse receipts are by statute negotiable. Collins v. Rosenbaum (1897), 43 S. W. R. 706.

4 Re Bahia (1868), L. R. 3 Q. B. 594; 37 L. J. Q. B. 181.

ship of the property referred to in them. A bill of lading indicates that the goods are being carried on behalf of A. B. or order; and a company's certificate indicates that certain shares are owned by A. B. To these extents the documents are rep

resentations as to title.

That such documents are usually transferred by different methods is not a distinguishing factor of any importance for our purpose. A bill of lading is transferable by indorsement of signature merely; and shares by a separate document (although sometimes indorsed upon the certificate) which expresses that which an indorsement implies. One form is more compendious than the other, that is all. And the effect (for our purposes) is identical. When A. B. indorses over his bill of lading to another he enables that person to pose as the owner of the goods, and he ought to be estopped as against any third person who is subsequently misled by such ostensible ownership. And when A. B. executes a transfer of his shares to another, the effect is the same so far as third persons are concerned.

Resemblances. Of certificates and transfers of shares, then, we may say as well as of bills of lading, dock warrants, etc., and conveyances of lands and goods:

1. That they are documents of title.

2. That they are used in the ordinary course of business as proof of the ownership of the property they describe.

3. And that they are ambulatory — that is, intended to be passed on to other persons, and to be acted upon by strangers to them. In fact all the documents to which reference has been made are title papers. Bills of lading, dock warrants, etc., and share transfers bear the same relation to goods and shares as do title-deeds to real estate. And the law of estoppel as to all of them ought to be the same that is to say, the same principles of estoppel by ostensible ownership should apply equally to all such cases.

"The ground of these decisions is the same in relation to real and personal estate. It is that the delivery of the thing by the owner to one who

1 Questions are mooted as to whether shares are, or are not, choses in action; it being suggested that they are choses prior to registration, and property afterwards. Colonial Bank v. Whinney (1886), 30 Ch. D. 261; 55 L. J. Ch. 585; 11 App. Cas.

426; 56 L. J. Ch. 43; Robinson v. Jenkins (1890), 24 Q. B. D. 275; 59 L. J. Q. B. 147. With such questions we have nothing to do. We are dealing with the title to shares, and for that purpose the inquiry is immaterial.