perhaps not very easy to ascertain by what chain of reasoning the Court decided this to be the case, but so it was.

It is often said that common recoveries were first made use of after the decision in Taltarum's case, 12 Ed. IV, 11 pl. 25 (1472), discussed and explained Challis, R. P. 250; but this is contrary to the positive assertions of Coke (Co. Lit. 361 b, Mary Portington's case, 10 Rep. at 37 b). If it were allowable to make a guess on a matter of such historical importance, I should surmise that Taltarum's case renders it probable that recoveries with single voucher were already in use, and showed, perhaps for the first time, that there were cases in which recoveries with double voucher were necessary.

In Mary Portington's case Coke cites some authorities that I have been unable to verify. Of those that I have consulted the most important is Octavian Lombard's case, Y. B. 44 Ed. III, 21, 22, which decided that where the tenant in tail in order to obtain a release from a person claiming by title paramount charges the land with a rent, the charge cannot be avoided by the issue in tail as it is for his benefit.

I venture, however, to think that a case reported in Y. B. Rec. Pub. 14 Ed. III, pl. 43 (1340), one hundred and thirty-two years before Taltarum's case, is an instance of a common recovery, as it is reported in the very words in which a reporter who had never heard of a common recovery would report it, if he was present in Court when it was suffered. The report says:

'On a writ of right the tenant vouched to warranty one who came and warranted and afterwards joined in the mise on the better right, and afterwards made default. Wherefore Hillary adjudged that the demandant should recover against the tenant, to him and his heirs for ever, quit of the vouchee and of the tenant and of their heirs for ever, and that the tenant should recover over to the value against the vouchee, and that the vouchee should be in mercy,' &c.

There is another report to the same effect, the only material difference being that the name of Aldeburgh is substituted for that of Hillary.

Both Hillary and Aldeburgh were Justices of the Common Bench, so that it is possible that these are different reports of the same case, or they may be reports of different cases. The report does not state whether the tenant was seised in fee simple or in tail; in the former case it is probable that the decision gave rise to common recoveries; in the latter case we have a report of a common recovery itself.

Warranties of a tenant for life were declared void, and the collateral warranties of an ancestor who had not an estate of

inheritance in possession were declared void against the heir by 4 & 5 Anne, c. 16. But the statute did not extend to the alienation by a tenant in tail in possession; the consequence was that where a tenant in tail in possession after the statute discontinued with warranty, he barred his issue with assets, and the remaindermen without assets. This is a point which may still be of importance in the investigation of titles.

By the Fines and Recoveries Act, 3 & 4 Will. IV, c. 74, s. 14, warranties entered into after 1833 by a tenant in tail are made void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail.

It follows that the questions that I have discussed in this article have little more than a theoretical interest, except to those few who study the history of our law. I venture to ask any student who comes across a case that tends to throw light on these questions to inform me of it.

HOWARD W. ELPHINSTONE.

ON SOME DEFECTS IN THE BILLS OF LADING

THE

АСТ, 1855.

HE Statute 18 & 19 Vict. c. 111, known as the Bills of Lading Act, 1855, after reciting that by the custom of merchants a bill of lading of goods, being transferable by indorsement, the property in the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property,' enacts as follows:

(1) 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 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.

(2) Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee, by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement.

(3) Every bill of lading in the hands of a consignee or indorsee for valuable consideration representing goods to have been shipped on board a vessel shall be conclusive evidence of such shipment as against the Master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same that the goods had not been in fact laden on board: provided, that the Master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims.'

The objects of this Act were:-(1) To give the holders of a bill of lading the right to enforce the contract shown by that document, without reference to the shipper, at the same time putting on him the shipper's obligations under the contract; and (2), To enable consignees and indorsees to rely on the statement in the

bill of lading as to the goods shipped. I propose to discuss some points in which the Act has failed to effect these objects.

I.

Experience shows that cases often arise in which the person who holds the bill of lading, and is entitled to have possession of the goods, is not within the Act, and so cannot enforce the contract against the shipowner in his own name.

Soon after the Act was passed questions began to arise as to how far the property in the goods must have passed to the consignee or indorsee in order to bring him within it. In The Freedom (L. R. 3 P. C. 594) [1871] Sir J. Napier, delivering the judgment of the Privy Council, laid it down that it was intended. by this Act that the right of suing upon the contract under a bill of lading should follow the property in the goods therein specified; that is to say, the legal title to the goods as against the indorser.' The plaintiffs there were consignees of the goods for sale; the consignors had indorsed the bill of lading to them, and they had as part of the transaction accepted and paid the consignors' bill for nearly the full value of the goods. They were therefore factors, with a lien and charge on the goods for their advances. It was held that 'the property in the goods' had passed to them within the meaning of the Bills of Lading Act.

And Sir R. Phillimore had previously in The Nepoter (L. R. 2 A. & E. 375, see pp. 378, 379) expressed the view that a consignee for sale would be within the Act, although he had not made advances against the particular cargo, if the consignor was indebted to him on an account current to which by arrangement the proceeds of the goods were to be carried.

In 1884 the majority of the Court of Appeal (Powen L.J. dissenting) held, in Burdick v. Sewell (13 Q. B. D. 159), that bankers or others who have made advances against goods, and to whom the bill of lading for the goods has been indorsed as security, are necessarily indorsees within the Act.

That judgment depended upon the view which had from time to time been taken by many Judges, that the indorsement of the bill of lading necessarily passed the legal property in the goods 1; so that the transaction could not be merely a pledge; it could not operate to give the right to possession of the goods only, and not the goods themselves. But this view was definitely made untenable by the judgments in the House of Lords on appeal in the

See especially Barber v. Meyerstein, L. R. 4 H. L. 317; Glyn v. East & West India Dock Co., in C. A., 6 Q. B. D. 475.

same case (Sewell v. Burdick, 10 App. Ca. 74). A bill of lading may be indorsed and transferred for one of several different purposes; it may be to complete a pledge, a mortgage, or a sale of the goods; or it may be only to enable an agent to receive them. It is now clear that there is no technical necessity that the property in the goods should pass to the indorsee, contrary to the intention of the indorser. And thus it depends on the intention with which the indorsement is made whether the indorsee can sue and be sued under the Bills of Lading Act.

In Sewell v. Burdick (10 App. Ca. 74) the Lords adopted the view that the transaction with the bankers, who there held the bill of lading, was only one of pledge; and that consequently, though they had a special property in the goods, they had not the property, in the sense necessary to make them liable to be sued under the Bills of Lading Act. The Lords reversed the judgment of the Court of Appeal; and it seems clear that their decision destroys the authority of the opinions expressed in The Freedom and The Nepoter, above referred to1.

Two of the Lords, Lords Selborne and Blackburn, further expressed strong doubts whether the indorsement of a bill of lading is sufficient to transfer the rights and liabilities under the contract even where the parties have intended to effect a mortgage of the goods; that is to say, have intended to pass the legal property in the goods to the mortgagee, but have reserved a proprietary right to the mortgagor.

Lord Blackburn said (p. 96), 'I am therefore strongly inclined to hold that even if this was a mortgage there would not have been a transfer of "the" property within the meaning of 18 & 19 Vict. c. 111.'

And Lord Selborne said (p. 84), 'One test of the application of the Statute may perhaps be, whether, according to the true intent and operation of the contract between the shipper and the indorsee, the shipper still retains any such proprietary right in the goods as to make it just and reasonable that he should also retain rights of suit (the word is suit, not action) against the shipowner under the contract contained in the bill of lading. If he does, the Statute can hardly be intended to take from him those rights and transfer

1 The question in The Freedom, and also in The Nepoter, was as to the effect of the Admiralty Court Act, 1861, s. 6. Lord Selborne, in Sewell v. Burdick (10 App. Ca. at p. 88), took the view that the right of an indorsee to sue under that Act depended on his right under the Bills of Lading Act. Lord Blackburn (10 App. Ca. at p. 94) differed as to this. Lord Selborne, however (10 App. Ca. at p. 83), thought the decision in The Freedom might be right, on the ground that the indorsee there had, by claiming and taking delivery of the goods, 'elected to complete his potential and inchoate title, and so had placed himself towards the shipowner in the position of proprietor.' That is a view which does not seem to have been taken by any other Judge; and Lord Blackburn appears to have dissented from it (see 10 App. Ca. at p. 95).