Tison & Gordon v. Howard , 57 Ga. 410 ( 1876 )

Bleckley, Judge.

Bills of lading are often mentioned in the books as negotiable instruments; and so they are, in a general sense, for they are symbolic of the property which they describe, and when there is a design to pass the property, that purpose may be accomplished by transferring the bills. But where the common law prevails and no statutes have been passed to better their standing, bills of lading do not enjoy the full dignity of negotiable paper, proper; that is, the mere possession of them in a state apparently regular, and under circumstances apparently innocent, does not always enable the holder to negotiate them with full protection to a bona fide purchaser. If they, are stolen, or procured from the owner by fraud, or entrusted to an agent for mere custody and safe keeping, they occupy much the same, or perhaps exactly the same, position that the property itself would occupy if it were thus dealt with instead of the bills which represent it. That they are on a different footing from the negotiable paper of commerce, strictly so-called, is hardly questionable: Story on Bailments, sections 296, 323; Smith on Contracts, 446, note. The case before us is not a case of the actual sale of the bill by the bankers, the persons with whom it was deposited. The bankers did not even draw, in express terms, on the cotton mentioned in the bill of lading. Their drafts paid by the factors were drawn generally — not on this particular cotton. The bankers did not make any express pledge of the cotton or of the bill of lading. The lien claimed by the factors is for a general balance which is due them from the bankers. The owner, himself, was the consignor of the cotton, and this appeared on the face of the bill of lading. The factors were the consignees, and were thus the factors of the owner, as to this consignment. We do not think the cotton can be treated as lawfully sold, or as lawfully pledged by the bankers, or, that for any other reason found in the record, the factors can be excused from accounting'to their consignor.

Judgment affirmed.