Page:The New International Encyclopædia 1st ed. v. 03.djvu/94

BILL OF LADING. 76 BILL OF RIGHTS. tious bill of lading does not bind his principal; that it is absolutely void. On the other hand, many American courts liold that the carrier is estopped, on the ground that when a "'principal has clothed his agent with power to do an act upon the existence of some extrinsic fact, nec- essarily and peculiarly within the knowledge of the agent, and of the existence of which the act of executing the power is itself a representation, a third person dealing with such agent in entire good faith, pursuant to the apparent power, may rely upon the re])resentation, and the principal is estopped from denying its truth to his preju- dice." If the bill of lading is intended to contain in itself all of the agreed terms of the contract of carriage, oral evidence cannot be given to vary or contradict the written instrument ; but if it does not jnirport to be the whole contract, the imincluded terms may be shown by oral evidence. When the bill of lading does contain the whole contract, the proper party to sue the carrier upon it, at commcm law, is the shipper or consignor, whether he is the owner of the goods or not ; nor ■ could the assignee of a bill of lading, in his own name, sue the carrier on the contract. While the contract was not assignable at com- mon law, the indorsement of the bill of lading could operate to transfer the title to the goods represented. This symbolical character of a bill of lading originated in the fact that while a cargo is at sea it is incapable of physical de- livery. Persons could sell and deliver goods during their transit only by treating bills of lading as symbols of the goods themselves. Hence the law merchant recognizes the delivery of a bill of lading as the legal equivalent of the delivery of the goods; and this rule of the law merchant was adopted by the common law. But bills of lading are not negotiable for all purposes. A shipper can give no title to the goods represented by a bill of lading by indors- ing or transferring it, unless he is their owner, or has apparent authority' from their owner. Xor can a (inder or a thief of a bill of lading indorsed in blank ecmfer even ujion a honn-fide purchaser a better title than he has. In other words, the negotiability of a bill of lading is substantially that of a bill of exchange (.see Bill of Ex- CHAXCK) which is overdue; the indorser tjikes it subject to equities. In two respects, how- ever, the hona-fide indorsee of a bill of lading has greater rights over the goods than his in- dorser had: he can hold them free from an un- paid vendor's right of stopjiage in traiisilu (see Sroi»p.('.E IX 'I'h.vn.siti ) , and free also from a defrauded vendor's right to rescind the contract of sale and retake the goods. This .semi -negotia- bility of a bill of lading continues until a com- plete delivery of possession of the goods has been made to some person having a right to claim them under it. Bills of lading are made, as a rule, in two or more ))arts; a practice which enables dis- honest shippers to u.se them as instruments of fraud, by selling the various parts to dif- ferent purchasers for value. In such a case, the purchaser, to whom the transfer of one part is first made, becomes the owner of the property. Still, the carrier may safely deliver the property to the one who first presents a ])art of the bill of lading if he has no notice or knowledge of a claim by the holder of another part; although the one so receiving delivery may be compelled to surrender the goods to other holders. In some States, bills of lading have been declared by stat- ute to be negotiable, like bills of exchange. But such legislation has not transformed and cannot transform documents of title to goods into fully negotiable instruments. Consult Scrutton, Coii- iract of Affreightment as Expressed in Charter Parties and Bills of Lading (4th ed., London, 1899), and the authorities referred to under the title CARRIEU. t'(IM.H)N. BILL OF MORTALITY. A list, issued weekly, of births ami deatlis (K-cnrring within the limits of London, the piililicalion of which began in 1592. Such bills are now superseded by the weekly bills prepared at the Register General's office. BILL OF PAINS AND PENALTIES. An act of the Legislature, declaring a certain act to be a crime, and imposing punishment or a disabil- ity upon such as have previously committed the act. It differs from other penal legislation in that it is retroactive in its operation, making that to be an offense against the State which was not so at the time of its commission, or imposing a penalty which the offense did not involve when committed. Strictly speaking, it comprehends the bill of attainder; but, as commonly emidoyed, it is limited to cases in which any penalty less than death is imposed by the statute, whereas the bill of attainder always creates a capital offense. (See Attainder.) Bills of pains and penalties are in general prohibited hy the clause of the Constitution of the United States forbidding Con- gress and the several States from passing liills of attainder or ex post facto laws ( .Vrt. I., Se<-. 9). But where the crime of treason, as defined in the Constitution, has been committed, Congress may, by a bill of pains and penalties, declare its pun- ishment, so long as the attainder declared by the bill does not involve corruption of blood or for- feiture of estate beyond the life of the traitor (Art. III., Sec. 3). See Bill of Attainder; Treason. BILL OF PARTICULARS. A written statement of the items of the demand upon which the jilaintitr founds his action or the defendant his set-olf or counterclaim. In some jurisdic- tions it must be filed with the jileading of the party; in others, only on request of the opposite party, or in response to an order of the court. 11 is generally conclusive on the party furnish- ing it. Consult the authorities referred to under the title Practke. BILL OF PEACE. .A bill of complaint in equity to restrain nqieated attempts to litigate the same cause of action. The objects of the pro- ceeding are to suppress useless and oppressive litigation, and to prevent a multiplieity of suits, and this procedure may accordingly be resorted to: (a) where a numerous class of persons insist upon the same legal right arising out of the same transaction; and (b) where the same individual persists in renewing repeatedly an unsuccessful action. The remedy is by injunction forbidding the prosecution of the vexatious suits. See Bill; Chancery; Kquity; Quia Tuiet. BILL OF RIGHTS. An act of Parliament passed in 10S9. iimiiediately after the accession of William and .Mary, and embodying the funda- menlal principle of political lilierty as under- stood in Kiiglaiid. It condemns Jis unconstitu-