dorsee any defense which might have been set up against the payee had the bill or note remained in his hands. So, also, if a note or bill of exchange be indorsed in blank, if payable to order, or if it be payable to bearer and therefore negotiable by delivery alone, and then be lost or stolen, a bona fide purchaser for value paid, acquires title to it even as against the true owner. This is an exception from the ordinary rule respecting personal property. But none of these consequences are necessary attendants or constituents of negotiability or ne gotiation. That may exist without them. A bill or note past due is negotiable if it be payable to order or bearer, but its indorsement or delivery does not cut off the defenses of the maker or acceptor against it, or create such a contract as results from an indorsement before maturity, and does not give to the purchaser of a lost or stolen bill the rights of the real owner.

"It does not necessarily follow, therefore, that because a statute has made bills of lading negotiable by indorsement and delivery, all these consequences of indorsement and delivery of bills and notes before ma、 turity ensue or are intended to result from such negotiation.

Bills of exchange and promissory notes are exceptional in their character. They are representatives of money circulating in the commercial world as evidence of money 'of which any person in lawful possession may avail himself and pay debts or make purchases or make remittances of money from one country to another or to remote places in the same country. Hence, as said by Story, J., it has become a general rule of the commercial world to hold bills of exchange as in some sort sacred instruments in favor of bona fide holders for a valuable consideration without notice.' Without such holding, they could not perform their peculiar functions. It is for this reason it is held that if a bill or

note indorsed in blank or payable to bearer be lost or stolen and be purchased from the finder or thief without any knowledge of want of ownership from the vendor the bona fide purchaser may hold it against the true owner. He may hold it, though he took it negligently and when there were suspicious circumstances attending the transfer. Nothing short of actual or constructive notice that the instrument is not the property of the person who offers to sell it, that is, nothing short of mala fides, will defeat his right. The rule is the same as that which protects the bona fide indorser of a bill or note purchased for value from the true owner. The purchaser is not bound to look beyond the instrument. Goodman v. Harvey, 4 Ad. & El. 870; Goodman v. Simonds, 61 U. S. (20 How.) 343; Murray v. Lardner, 69 U. S. (2 Wall.) 110; Matthews v. Poythress, 4 Ga. 287. The rule was first applied to the case of a lost bank note, Miller v. Race, 1 Burr. 452, and put upon the ground that interests of trade, the usual course of business, and the fact that bank notes pass from hand to hand as coin, require it. It was subsequently held applic able to merchants' drafts, and in Peacock v. Rhodes, 2 Doug. 633, to bills and notes, as coming within the same

reason.

"The reason can have no application to the case of a lost or stolen bill of lading. The function of that instrument is entirely different from that of a bill or note. It is not a representative of money, or for the payment of debts or for purchases. It does not pass from hand to hand as bank notes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it -a representative of those goods. But if the goods themselves be lost or stolen, no sale of them by the finder or thief, though to a bona fide purchaser for value, will divest the ownership of the person who lost

"Bills of lading are regarded as so much cotton, grain, iron or other articles of merchandise. The merchandise is very often sold or pledged by the transfer of the bills which cover it. They are, in commerce, a very different thing from bills of exchange and promissory notes, answering a different purpose and performing different functions. It cannot be, therefore, that the statute which made them negotiable by endorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible; such as the liability of indorsers, the duty of demand ad diem, notice of non-delivery by the carrier, etc., or the loss of the owner's property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by endorsement. No statute is to be construed as altering the common law, further than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express. Especially is so great an innovation as would be placing bills of lading on the same footing in all

respects with bills of exchange not to be inferred from words that can be fully satisfied without it. The law has most carefully protected the ownership of personal property, other than money, against misappropriation by others than the owner, even when it is out of his possession. This protection would be largely withdrawn if the misappropriation of its symbol or representative could avail to defeat the ownership, even when the person who claims under a misappropriation had reason to believe that the person from whom he took the property had no right to it.

"We think, therefore, that the rule asserted in Goodman v. Harvey, Goodman v. Simonds, Murray v. Lardner (supra), and in Phelan v. Moss, 67 Pa. St. 59, is not applicable to a stolen bill of lading. At least the purchaser of such a bill with reason to believe that his vendor was not the owner of the bill, or that it was held to secure the payment of an outstanding draft, is not a bona fide purchaser, and he is not entitled to hold the merchandise covered by the bill against its true owner." Shaw v. Merchants' Nat. Bank, 101 U. S. 557.

To the same effect is Friedlander v. Texas & Pac. Ry. Co., 130 U. S. 416. Citing Pollard v. Vinton, 105 U. S. 7; Gurney v. Behrend, 3 El. & Bl. 622, 633.

The Connecticut statute provided that "warehouse receipts . . . may be transferred by endorsement thereof, and any person to whom the same will be so transferred shall be deemed to be the owner of the property therein specified so far as to give validity to any pledge, lien or transfer made or created by any such person." General Statutes, § 4924. (See Pub. Acts, 1907, ch. 220.)

"The plaintiff being the endorsee and holder of the warehouse receipts, was the owner of the goods described therein. Such a receipt is regarded as representing the goods described in it and an assignment of the re

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44

ceipt by an endorsement of it is, in the eye of the law, considered as equivalent to a delivery of the property itself. These receipts transferred to the plaintiff the legal title to the property and its constructive possession; and the defendant as the warehouseman from the time the plaintiff received the receipts became its bailee and held the property for it. The delivery to it of the evidence of title was equivalent in the then situation of the property to the delivery of the property itself. Gibson v. Stevens, 49 U. S. (8 How.) 384, 399; First Nat. Bank of Chicago v. Dean, 137 N. Y. 110; Cushing v. Breed, 96 Mass. (14 Allen) 376, 380; Burton v. Curyea, 40 Ill. 320; Harris v. Bradley, 2 Dill. 248; Young v. Lambert, L. R. 3 P. C. 142; Barber v. Meyerstein, L. R. 4 H. L. 317. It is unnecessary to discuss whether or not our statute gives to this kind of receipt the character of full negotiability." State Bank v. Waterhouse, 70 Conn. 76, 85.

Under the New York Code, the transferee of a bill of lading may bring an action thereon against the carrier in his own name. Merchants' Bank v. Union R. & T. Co., 69 N. Y. 373. Contra at common law.

43. "It is for the law to declare the negotiability of instruments. The mere contract of the parties cannot be effectual to this end." McCaskill v. Conn. Savings Bank, 60 Conn. 300, 311.

44. Turner v. Israel, 64 Ark. 244; State v. Koshland, 25 Ore. 178; Anderson v. Portland Mills Co., 37 Ore. 483.

45. Pollard v. Reardon, 65 Fed. 848; Show v. Merchants' Nat. Bank, 101 U. S. 557; Ross v. Robertson, 46

Ala. 483; Moore v. Robinson, 62 Ala. 537; Turner v. Israel, 64 Ark. 244; Tison v. Howard, 57 Ga. 410; Hunt v. Miss. Cen. Ry. Co., 29 La. Ann. 446; B. & O. Ry. Co. v. Wilkins, 44 Md. 11; Hallgarten v. Oldham, 135 Mass. 1; Cox v. Vt. Central Ry. Co., 170 Mass. 129; Commercial Nat. Bank v. Bemis, 177 Mass. 95; Anderson v. Portland Rolling Mills Co., 37 Ore. 483; 3 Page on Contracts, § 1290.

A bill of lading, even when made deliverable to order or assigns is not a negotiable instrument of the same character with a bill of exchange. Brown v. Babcock, 3 Mass. 29; Stollenwerck v. Thacher, 115 Mass. 224.

Bills of lading are negotiable to this extent; they are transferable by assignment and endorsement and the transferee takes all the rights against the carrier that they conferred upon the consignee or the person to whose assigns or whose order the goods are to be delivered. Hunt v. Miss. Cent. R. R. Co., 29 La. Ann. 440; Robinson v. Short, 68 Me. 61.

"In a qualified and restricted sense, a bill of lading has the attribute of negotiability." Davenport Nat. Bank v. Homeyer, 45 Mo. 145.

"A bill of lading, even when in terms running to order or assigns, is not negotiable, like a bill of exchange, but a symbol or representative of the goods themselves; and the rights arising out of the transfer of a bill of lading corresponds not to those arising out of the endorsement of a negotiable promise for the payment of money, but to those arising out of a delivery of the property itself under similar circumstances. If the bill of lading is once assigned or endorsed generally by the original holder, upon or with a view to the sale of the