Sec 878

"Where goods are delivered on board of a vessel to be carried, and a bill of lading is taken, the delivery by the vendor is not a delivery to the buyer, but to the captain as bailee for delivery to the person indicated by the bill of lading, as the one for whom they are to be carried."1 It may be considered as settled that the vendor, by making the bill of lading deliverable to his order, may be regarded, until the contrary be shown, as intending to reserve to himself the jus disponendi, so that the property does not vest in the purchaser.2 And the rule that the property in such cases does not pass to the consignee, holds even though the bill of lading recited that the consignee was to pay no freight, as the goods were " owner's property;"3 and so where the vessel was chartered by the consignee,4 or even owned by him.5 A delivery of a bill of lading, coupled with endorsement, if payable to order, passes a title to the goods,6 though a delivery without endorsement, while it may create a lien, does not pass the title as against the creditors of the shipper.1 And one who receives a bill of lading, even by endorsement, either as collateral security for, or in payment of, prior indebtedness, has no title as a bona fide purchaser for value.2 The endorsement passes only the title of the endorser.3

Otherwise as to delivery to captain of ship on bill of lading.

"In truth the statute is silent as to the delivery of the goods sold, which is the act of the seller. It requires the acceptance and receipt of some part thereof, which are subsequent acts of the buyer. Foster, J., in Boardman V. Spooner, 13 Allen, 357; Prescott V. Lock, 51 N. H. 94." '

"Again, sec. 155: 'In Coombs V. The Bristol and Exeter Railroad Co., 3 H. & N. 510, Pollock, Chief Baron, said, the "vendee should have an opportunity of rejecting the goods. The statute requires not only delivery but acceptance."' 'It may,' says Benjamin, 'be confidently assumed that the construction which attributes distinct meanings to the two expressions " acceptance" and "actual receipt" is now too firmly settled to be treated as an open question, and this is plainly to be inferred from the opinions delivered in Smith V. Hudson, 6 B. & S. 431.' "

1 Benj. on Sales, 3d Am. ed. sec 399. "This principle," says Mr. Benjamin, "runs through all the cases, and is clearly enunciated by Parke, B., in.

Wait V. Baker, 2 Ex. 1; and by Byles, J., in Moakes V. Nicolson, 19 C. B. N. S. 290." To same effect see Shepherd V. Harrison, L. R. 4 Q. B. 197; L. R. 5 H. L. 116; Gabarron V. Kreeft, L. R. 10 Ex. 274; Newhall V. Vargas, 13 Me. 93.

2 Benj. on Sales, 3d Am. ed. sec 399; Wilmshurst V. Bowker, 2 M. & G. 792; Ellershaw V. Magniac, 6 Ex. 570; Van Casteel V. Booker, 2 Ex. 691; Jenkyns V. Brown, 14 Q. B. 496; Shepherd V. Harrison, ut supra; Merchants' Nat. Bk. V. Bangs, 102 Mass. 298.

3 Turner V. Liverpool Docks, 6 Exch. 543.

4 Berndtson V. Strang, L. R. 4 Eq. 481.

5 Wait V. Baker, 2 Exch. 1; see to same general effect Stubbs V. Lund, 7 Mass. 457; Rowley V. Bigelow, 12 Pick. 308.

6 Lickbarrow V. Mason, 2 T. R. 63; Berkley V. Walling, 7 A. & E. 39; 2 N. & P. 178; Skilling V. Bollman, 73 Mo. 665.