The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1903-10-18

I'LL 1 LIZ LID ty1to1 ~ ~ 4 !.
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rcctng the disposition Of such property
as they imagined to be lasting and which
would answer to postority the trouble
and pains that their ancestors employeu
about them; but at the same time en-
tertained n very low and contemptuous
opinion of all personal estate which
they regarded as only transient COM
modify our ancient law books,
which are founded upon the feudal pro-
visions do not therefore. often conde-
scend to regulate this species of prop-
erty There is not a chapter In Rritton
or the Mirror that can fairly be referred
to this head. and the little that Is to be
found In Glanvill, Bracton and Fleta
seems principally borrowed from the
civilians" This Is q most important
thought to be borne IN mind II this sub
ject. In It's elements. is to be correctly
understood 1t must be borne in mind
that under the common law personal
property was practically outlawed. There
was no passage OF title to personal
property at the common law except by
delivery Of the goods or grant of title by
deed.
The FIRST advances made by personal
property towards recognition by the law
was when traders got the courts to re-
cognize the transfer of bills Of exchange,
upon the custom OF merchants. But af-
ter making this acknowledgement the
common law baked and refused to re-
cognize transfer of pronissory notes
and 1t required an act Of Parliament to
make that valid. But even after this. in
tangible personal property only was ben
Gifted Tangible personal property re-
manned under all the handicap that the
original common law had placed It UNI
der, and owners OF 1t were deprived Of
It's most valuable and important uses. 10
make tangible personal property as avail
able to the people in their ordinary az
fairs as intangible personal property had
become, was therefore ono Of the great
est ends towards which Lord Mansfield
bent his Incompatible powers.
AZ early as 1867 when he had been
only eleven years upon the bench. he dis
closed his plan for making personal prop
erty serve the useful purpose to man
that It ought TO serve and from which the
common law had excluded 1t. In that
year he declared In Wright VS. Campbell
4 Burrow, 3p46, that II the endorsee of q
bill Of lading sells tho goods at sea to II
bona fde purchaser. who has no knowl-
edge that the shipper is unpaid and en-
dorses to him tho bill Of lading. the pur-
chaser will acquire good title to the
goods, which the unpaid shipper cannot
dispute.
Tho case OF Wright VS.. Campbell, was
not In shape to authorize decision of
this proposition ga Tint what Lord Mans
field said was nothing more than his
obiter dctum But this dlctum contains
in its bosom the result of years OF medi-
tationq and an advance in the evolution
of our laws greater than that made By
all else put together since the enact"
ment of the statute of Anne making
promssary notes negotiable. Those mem.
bers Of the bar who thought that the
straight lines Of the old common law |
should be kept running on in a logical
direction, derided this announcement as
another case In which the new chief |
Justice was overthrowing English insti-
tutions by the introduction Of equitable
doctrines from the civil law. But the
dctum stood there to bear golden fruit |
of the most abundant character in due
time. stIsre ase
Lord Mansfield made no explanation OF
his dictum In Wright VS.. Campbell and it |
is anticipating little to explain here |
what subsequent events showed that he |
had In his mind. but for the sake of I
clearncss think the matter should be .
explained here. What he had in mind
was this: A bill of lading is nothing I
but a written agreement by the master
of the ship to deliver up the goods to the /
order Of the shipper. When the shipper /
other, that other has the order OF the |
shipper on the master for the goods. and |
by the masters agreement he Is bound to |
believer the goods up to that endorsee. |
Now. in this transaction. there has really !
been no passage of the title OF the ship /
per, either by symboical delivery or in
any other way, to tho endorsee. But as i
the shipper has armed that endorsee with |
an apparent authority to represent to |
an innocent third party that he has
right to the goods, II he does make I
that representation, and third party |
does buy the bill of ladng from the /
e,dorsee then 1t would be inequtable /
and unjust that the shipper should claim /
the goods against that third party, even
though he has not been paid for his /
goods for when one ftwo innocent par
ties Is to suffer, he must suffer who has
caused the difficulty. There Is no case, I
therefore, OF passage Of htitle to 4
the goods but case has arisen In which
the court Will hold the shipper equitably
estopped to deny that the title to and |
possesso nof the goods have passed tn
the innocent third party who parted with /
lls money upon the shippers assurance <
that the endorsce was the owner of tho
goods. The reason Of the case would. 7
of course, equally clothe the first holder
of tho bill OF lading with the title to (
the goods if it were ineQuitable that the |
shipper should claim them, and the holder
OF the document would be practically and
in effect the owner of the goods. Since |
the first holder of warehouse receipt |
is given power by 1t to present that he
is the owner OF the goods and thereby
to deceive an innocent third party the (
law deemed the title to have passed
to him.
This is what we call passage of title |
by equitable estOppel, and when Lord
Mansheds great creative genius laid the
foundation for introducing this principle I
into our common law, he struck the
shacklcs from personal property that that !
common law had fastened on IT and placed
1t within the power Of men to make |
common sense and practical use OF thel' |
III Fora