the same to such agent or agents: and such contract and payment shall be binding upon and good against the owner of such goods, wares, and merchandise, notwithstanding such person or persons, body or bodies politic or corporate, shall have notice that the person or persons making and entering into such contract, or on whose behalf such contract is made or entered into, is an agent or agents

"Provided such contract and payment be made in the usual and ordinary course of business, and that such person or persons, body or bodies politic or corporate, shall not, when such contract is entered into or payment made, have notice that such agent or agents is or are not authorised to sell the said goods, wares, and merchandise, or to receive the said purchase money "

On this section see—

Baines v. Swainson, 4 B. & Sm., 270. Fuentes v. Montis, L. R., 3 C. P., 268: 4 C. P., 93. Cole v. North Western Bank, L. R., 9 C. P., 470 affirmed in Ex. Ch., 10 C. P., 354

S. 5.-" It shall be lawful to and for any person or persons, body or bodies politic or corporate, to accept and take any such goods, wares, and merchandise, or any such document as aforesaid, in deposit or pledge from any such factor or factors, agent or agents, notwithstanding such person or persons, body or bodies politic or corporate, shall have such notice as aforesaid that the person or persons making such deposit or pledge is or are a factor or factors, agent or agents; but then and in such case such person or persons, body or bodies politic or corporate, shall acquire no further or other right, title or interest in or upon or to the said goods, wares, or merchandise, or any such document as aforesaid, for the delivery thereof, than was possessed or could or might have been enforced by the said factor or factors, agent or agents, at the time of such deposit or pledge as a security as last aforesaid: but such person or persons, body or bodies politic or corporate, shall and may acquire, possess and enforce such right, title or interest, as was possessed and might have been enforced by such factor or factors, agent or agents, at the time of such deposit or pledge, as aforesaid

On this section see

Blandy v. Allan, Dans. & Ll., 22. Fletcher v. Heath, 7 B. & C., 517. Thomson v. Farmer, 1 Moo. & Ma., 48

9.

1. These Statutes are limited to mercantile transactions Wood v. Rowcliffe, 6 Hare, 183. Monk v. Whittenbury, 2 B. & Ad., 484. Lamb v. Attenborough, 1 B. & Sm., 831. Jenkyns v. Usborne, 8 Scott., N. R., 505. Van Casteel v. Booker, 2 Exch., 691 See also

Gobind Chunder Sein v. Ryan, 9 Moo. Ind. Ap., 140. Sheppard v. Union Bank of London, 7 H. & N., 661

2. Dock Warrants are assignable instruments, and being duly indorsed and delivered, the property in the goods they represent passes by the delivery of the instrument, so as to empower the holder to take possession of the goods. And if the Assignor becomes bankrupt his assignees have no title to the goods

Zwinger v. Samuda, 1 Moor, 12. Lucas v. Dorrien, 1 Moor, 29. Spear v. Travers, 4 Camp., 251

A broker gave a banker a letter of hypothecation of goods, promising to lodge the warrants for them next day. Having failed to do so after repeated applications, the banker obtained the keys of the warehouse and took possession of the goods. Bacon, V. C., held that the banker had acquired a good title to the goods under the Factors' Act, 5 & 6 Vict. (1842), c. 39, s. 4

Ex parte North Western Bank, re Slee, 42 L. J., Bank, 6

4. Bills of Lading made out to the order of the shipper or consignee are instruments assignable by indorsement and delivery, so as to transfer the property in the goods to a bonâ fide indorsce for value, in the absence of any notice of fraud, insolvency, or want of title in the indorser

If the consignee or vendee becomes insolvent, the unpaid vendor or consignor may stop the goods in transitu before they have been delivered to the vendee, consignee, or his agent

But if the consignee or vendee has assigned the Bill of Lading for valuable consideration to an indorsee, who has no notice of his fraud or insolvency, such an indorsement and delivery will defeat the unpaid vendor's right of stoppage in transitu

Lickbarrow v. Mason, 2 T. R., 63. Smith's L. C., vol. I., p. 756. Cuming v. Brown, 9 East., 506. Gurney v. Behrend, 3 El. & Bl., 622. The Marie Joseph, L. R., 1 P. C., 219. The Argentina, L. R., 1 Ad. & Ec., 370. Rodger v. The Comptoir d'Escompte de Paris, L. Gilbert v. Guignon, L. R., 8 Ch., Ap. 16

R., 2 P. C., 393.

5. The forbearance or release of an antecedent debt is not a

good consideration for an engagement to indorse Bills of Lading

which had not yet come into the consignee's hands, so as to defeat the unpaid vendor's right of stoppage in transitu

Rodger v. The Comptoir d'Escompte de Paris, L. R., 2 P. C., 393

A Bill of Lading in which the words "or order or assigns" are omitted is not an assignable instrument. [But this is cured now by the Supreme Court of Judicature Act]

But where the consignee of a Bill of Lading without the words "or order or assigns" had actually received the goods and had assigned them over to a Bank for valuable consideration, who thus united in themselves the legal and equitable title to the goods, the omission of the words "or order or assigns" is not sufficient to give the indorsees constructive notice of some equitable arrangement between the consignor and the assignee

Henderson v. The Comptoir d'Escompte de Paris, L. R., 5 P. C., 253 7. When a Bank had discounted Bills of Exchange to a large amount on the express agreement that they should be accompanied by shipping documents, which the sellers failed to give; and, being pressed by the Bank, indorsed another Bill of Lading in substitution of the documents first promised, it was held to be indorsed for valuable consideration, and to defeat the consignor's right of stoppage in transitu

The Chartered Bank of India, Australia, and China v. Henderson, L. R., 5 P. C., 501

8. A person to whom an indorsed Bill of Lading was sent by mistake by the consignor cannot assign it so as to defeat bona fide assignees of others of the same set of Bills of Lading for value Gilbert v. Guignon, L. R., 8 Ch. p., 16. Schuster v. MacKellar, 7 E. & B., 704

9. If the indorsee knew that the consignee was in insolvent circumstances, and had not paid for the goods; and that no bill had been given for them, or that one having been accepted, it was not likely to be paid, the assignment is void against the unpaid vendor

Cuming v. Brown, 9 East., 506

10. Formerly the indorsement and delivery of a Bill of Lading was sufficient to transfer the property in the goods, but it did not transfer the contract to the assignee. But the 18 & 19 Vict. (1855), c. 111, enacts—

S. 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"

Short v. Simpson, L. R., 1 C. P., 248. The St. Cloud, Br. & Lush, Ad. C. 4. Dracachi v. The Anglo-Egyptian Bank, L. R., 3 C. The Freedom, L. R., 3 P. C., 594. Fox v. Nott, 6 H. &

P., 190.
N., 630.

11. A nude assignee of the Bill of Lading cannot sue in a Court of Common Law under the Statute 18 & 19 Vict. (1855), c. 111, nor in the Admiralty Court, under the Stat. 24 Vict. (1861), c. 12

The St. Cloud, Br. & Lush., Ad. Ca., 4.

S. 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"

S. 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 shewing that it was caused without any default on his part, and wholly by the fraud of the shipper, or the holder, or some person under whom the owner claims"

Where goods are at sea the parting with the Bill of Lading which is the symbol of the goods, is parting with the ownership of the goods themselves: and this principle applies to goods which for the convenience of the parties have been landed at a sufferance wharf. (11 & 12 Vict. [1848], c. xviii., and 25 and 26 Vict. [1862], c. 63, s. 67.)

The Bill of Lading is a living instrument so long as the engagement of the shipowner has not been completely fulfilled, and the transfer of it for value passes the absolute property in the goods. And it has not been fulfilled so long as the goods, though landed at a wharf, are subject to a stop order

The person who first gets the Bill of Lading (though only one of a set of three) gets the property in the goods it represents he need not do any act to assert his title which the transfer of the Bill of Lading itself renders complete: and any subsequent dealings with the others are subordinate to the rights passed by that one

Myerstein v. Barber, L. R., 2 C. P., 38; 661. 4 H. L., 317.

12. If Bills of Exchange are sent to be accepted and a Bill of Lading along with them to protect the Bills of Exchange, if the consignee refuses acceptance of the Bills of Exchange he cannot retain the Bill of Lading

A Bill of Lading retained in such a manner conveys no property in the goods to an assignee of the Bill

Shepherd v. Harrison, L. R., 4 Q. B., 196; 493. 5 H. L., 116.

Factors' Acts Amendment Act, Stat. 1877, c. 39

10. Whereas doubts have arisen with respect to the true meaning of certain provisions of the Factors' Acts, and it is expedient to remove such doubts and otherwise to amend the said Acts, for the better security of persons buying or making advances on goods, or documents of title to goods, in the usual and ordinary course of mercantile business:

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows:

1. In this Act, the expression "the principal Acts" means the following Acts: that is to say,

The Act of the 4th Geo. IV. (1823), c. 83

The Act of the 6th Geo. IV. (1825), c. 94

The Act of the 5th and 6th of Her Majesty (1842), c. 39 And the said Acts and this Act may be cited for all purposes as the "Factors' Acts, 1823 to 1877"