bargainor had in the goods, yet (if there be not an assignment of a bill of lading) he acquires no greater right; he takes the property subject to the same restrictions that his immediate seller held it under.

In Dixon v. Yates (a), in 1833, Dixon sold goods to Collard, who accepted bills for the price, and Collard, whilst the bills were still running, sold the goods to sub-buyers, who paid him the price, and afterwards Collard became insolvent. The King's Bench decided, that one of the sub-buyers, Bond, who had taken possession of a part of the goods, whilst Collard was solvent, was entitled to keep that part of the goods, for he had taken possession of them whilst Collard had a right to take possession, but that none of the sub-buyers had a right to take the goods, which at the time of the insolvency, remained undelivered, for that Collard's right to take possession was defeasible on his insolvency, and though they had bought from him, and bona fide paid him whilst he was solvent, yet they did not thereby acquire any right more extensive than his, that is to say, a right defeasible on his insolvency before he acquired possession.

In Craven v. Ryder (b), in 1816, it was decided, by the Common Pleas, that the seller's rights were not destroyed by a subsale and payment, but there the defendant (who was the shipowner and who had given a receipt for the goods to the plaintiff) was acting contrary to his own written acknowledgment, and it may, perhaps, be thought that that circumstance was the ground of the decision.

In Nix v. Olive (c), in 1805, the sellers, Abbot and Co., had sent the purchaser Fox an unindorsed bill of lading. The goods arrived, and Fox sold them to Nix, the plaintiff, who did not obtain possession. Fox became insolvent, and the defendants, who were agents of Abbot and Co., sold the wine. Nix brought trover, and Lord Ellenborough decided that Abbot and Co. still had the right to stop in transitu. It is to be observed, that there did, in that case, exist an unindorsed

(a) Dixon v. Yates, 5 B. & Ad. 313, ante, p. 370.

(b) Craven v. Ryder, 6 Taunt. 433.

(c) Nix v. Olive, Abbott on Shipping, 14th ed., 851.

bill of lading, but that could not prevent the property being transferred from Fox to Nix by the subsale: see Nathan v. Giles (a).

In Akerman v. Humphrey (b), in 1823, the Common Pleas decided that a sale by the buyer, accompanied by a delivery of the shipping note, did not put an end to the seller's rights to stop in transitu.

These authorities are sufficient to overrule what seems to have been the opinion of Buller, J., expressed in his celebrated argument in Lickbarrow v. Mason (e), in 1793, in the House of Lords, in which he contends that "goods can "never be stopped in transitu after they have been sold and

paid for, or money advanced upon them bonâ fide, and "without notice"; indeed, that opinion seems to have been overruled in that case, and has never since been acted upon. It may therefore be asserted, that a mere re-sale by the buyer does not divest the seller's rights when there is no assignment of a bill of lading. And a pledge of the goods cannot have more effect than a sale of them, even if a pledge of goods unaccompanied by something equivalent to a delivery of possession, passes any legal property in them, which is somewhat doubtful (d).

It is clear, also, that the buyer, if he has the right of possession, may give a third person authority to take possession of the goods without conferring on him any right of property whatever in them. If the carrier, or other holder of the goods, delivers them to such a person, it is a delivery to the buyer whose agent that person is, and such a delivery is for every purpose the same as a delivery to the buyer himself. If the carrier refuses to deliver the goods to the agent, it is in general the same thing (if there be due notice of the authority) as if he had refused to deliver them to the buyer himself, and if the refusal be not justifiable, the buyer has

(a) Nathan v. Giles, 5 Taunt. 558.

(b) Akerman v. Humphrey, cited 4 Bing, 522.

(e) Lickbarrow v. Mason, 6 East, 21, n. 34.

(d) But see the judgment of Willes, J,, in Meyerstein v. Barber, 36 L. J. C. P 57; L. R. 2 C. P. 52.

the same remedy as if the refusal had been to him in person. But the agent has no right of action for such a refusal. He has no right of property or possession in the goods, and cu maintain no action in his own name for any wrong done to the right of possession or property of his principal, the buyer. In this respect, one who has merely got authority to receive the goods, differs from a sub-buyer; for the sub-buyer having himself acquired the legal rights of property and possession, such as belonged to his immediate seller, i.e., vested though defeasible, may maintain in his own name an action for anything done in contravention of those rights after he has acquired them.

Such being the power of the buyer over the goods before he has taken possession, when there are no documents of title to the goods, the question arises, what difference does the existence of such documents make?

A bill of lading is a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage (subject to such conditions as may be mentioned in the bill of lading). The bill of lading is sometimes an undertaking to deliver the goods to the shipper by name, or his assigns, sometimes to order or assigns, not naming any person, which is apparently the same thing, and sometimes to a consignee by name, or assigns, but in all its usual forms it contains the word assigns.

The bill of lading is, therefore, a written contract, between those who are expressed to be parties to it, on behalf of their principals if they be agents, that is, generally speaking, between the master of the ship on behalf of his principals the shipowners, on the one part, and the person named as shipper of the goods on the behalf of the person who, at the time of shipment, was his principal, on the other part, by which it is agreed that the shipowner is to deliver the goods to the person who shall fill the character of assign.

The assignment of the bill of lading designates that person, and the master, by delivering the goods to him, fulfils the contract, and by refusing to deliver them to him, he breaks

the contract; but prior to the Bills of Lading Act of 1855 (a) the assignee of the bill of lading was not made a party to the contract with the master, nor could he, as assignee, maintain in his own name any action on the contract contained in the bill of lading. In this respect, the assignment of a bill of lading differed greatly from that of a bill of exchange, for the indorsee of a bill of exchange is by the law merchant entitled to sue the previous parties to the bill in his own name, and is by the indorsement rendered a party to the contract, though not one originally; but the contract contained in a bill of lading is a chose in action, and there was no means whatsoever by which any person could be rendered a party to the contract contained in a bill of lading, who was not a party to it from its first inception. Even if the assignee of the bill of lading had acquired the full legal and equitable property in the goods, so that the damage arising from the non-delivery was exclusively his, still he was compelled to bring any action on the contract in the name of the original contractor as his trustee; for, in general, contracts do not by the law of England run with goods, and no custom has ever been recognised making the contract contained in a bill of lading an exception (b).

The law on this point was altered by that Act (c), and now, "Every consignee of goods named in a bill of lading, and "every indorsee of a bill of lading to whom the property in "the goods therein mentioned shall pass, upon or by "reason of such consignment or indorsement, shall have "transferred to and vested in him all rights of suit, and be

(a) 18 & 19 Vict. c. 3, s. 1.

(b) Sargent v. Morris, 3 B. & A. 277, in 1820; Thompson v. Dominy, 15 L. J. Ex. 320; 14 M. & W. 403, in 1845; Howard v. Shepherd, 19 L. J. C. P. 249 ; 9 C. B. 297.

(c) 18 & 19 Vict. c. 3, s. 1. In Short v. Simpson, in 1866, 35 L. J. C. P. 147 ; 1 C. P. 248; the consignor indorsed the bill of lading as security for an advance. On his repaying the advance it was reindorsed to him, and it was held that he was thereby remitted to all his rights under the original contract. For the indorsee's liability for freight, see Burdick v. Sewell, 10 Q. B. D. 363, and 13 Q. B. D. 159; 10 App. Ca. 74; 52 L. J. Q. B. 428; 53 L. J. Q. B. 399; where the effect of the indorsement of a bill of lading by way of a pledge as distinguished from a sale was much considered.

'subject to the same liabilities in respect of such goods, as if "the contract contained in the bill of lading had been made "with himself."

If, however, the goods when shipped are not the property of the shipper, he in general acts in shipping them as agent for the owner of the goods. When he does so, the principal is from the first a party to the contract, though made in the name of his agent, and may maintain an action upon it in his own name as well as in that of the agent. And his right to maintain such an action is not affected by his being named in the bill of lading as consignee, or by his subsequently becoming indorsee of the bill.

Anderson v. Clarke (a), in 1824, was an action by Anderson on the contract in a bill of lading against the master for not delivering goods. The goods were shipped by Orr at Newry; Orr transmitted the bill of lading to Anderson. The form of the bill of lading is not given in the report, but it seems to have stated that the goods were shipped by Orr, deliverable to Anderson or assigns. The Court decided, after examining the correspondence, that there was an express appropriation of the goods to Anderson at the time of shipment, so tha Anderson had a special property in them the instant they were put on board (b). The objection was then taken, that though Anderson might maintain trover, he was no party to the contract, but the Common Pleas said that there was no weight in the objection, as they considered that Orr, in shipping the goods, acted as agent for Anderson (c).

But though it seems perfectly well ascertained that the assignment of a bill of lading does not, apart from the statute (d), transfer the contract, and has no other effect on the contract than that of appointing the person who is to receive the possession of the goods under it, the effect of the assignment of the bill of lading upon the property in the

(a) Anderson v. Clarke, 2 Bing. 20,

(b) See per Parke, B., in Bryans v. Nir, 4 M. & W. 788, 792.

(c) See Smith's Law of Contracts, Lecture X., for the adoption by the principal of the agent's contract.

(d) Ante, p. 422.