the true owner or owners, or proprietor or proprietors of such goods, wares, or merchandize, from demanding and recovering the same from his, her, or their factor or factors, agent or agents, before the same shall have been so sold, deposited, or pledged, or from the assignee or assignees of such factor or factors, agent or agents, in the event of his, her, or their bankruptcy, nor to prevent such owner or owners, proprietor or proprietors from demanding or recovering of and from any person or persons, body or bodies politic or corporate, the price or sum agreed to be paid for the purchase of such goods, wares, or merchandize, subject to any right of set-off on the part of such person or persons, body or bodies politic or corporate, against such factor or factors, agent or agents, nor to prevent such owner or owners, proprietor or proprietors from demanding or recovering of and from such person or persons, body or bodies politic or corporate, such goods, wares, or merchandize so deposited or pledged, upon repayment of the money, or on restoration of the negotiable instrument or instruments so advanced or given on the security of such goods, wares, or merchandize as aforesaid, by such person or persons, body or bodies politic or corporate, to such factor or factors, agent or agents, and upon payment of such further sum of money, or on restoration of such other negotiable instrument or instruments (if any) as may have been advanced or given by such factor or factors, agent or agents to such owner or owners, proprietor or proprietors, or on payment of a sum of money equal to the amount of such instrument or instruments, nor to prevent the said owner or owners, proprietor or proprietors from recovering of and from such person or persons, body or bodies politic or corporate any balance or sum of money remaining in his, her, or their hands, as the produce of the sale of such goods, wares, or merchandize, after deducting thereout the amount of the money or negotiable instrument or instruments so advanced or given upon the security thereof as aforesaid; provided that in case of the bankruptcy of any such factor or agent, the owner or owners, proprietor or proprietors of the goods, wares, and merchandize so pledged and redeemed as aforesaid, shall be held to have discharged pro tanto the debt due by him, her, or them to the estate of such bankrupt (v). The late act of the 5 & 6 Vict. c. 39, was passed in order to give the same protection to bonâ fide advances upon goods in the hands of agents as by the act of Geo. 4 is given to sales of such goods. It provides, that any agent intrusted with the possession of goods, or of the documents of title to the goods, (and an agent in possession is to be taken to be intrusted, unless the contrary is proved (w),) is to be deemed the owner, for the purpose of giving effect to any contract or agreement by way of lien or security, bona fide made by any person with such agent, as well for any original loan, advance, or payment, as for any further or continuing advance (r). Nor is it material that the party dealing with the agent knew him to be such, unless such party (v) As to mortgages of bills of lading, prior to the statute, see Evans v. Martlett, 1 Ld. Raym. 271; 3 Salk. 290. Lempriere v. Pasley, 2 T. R. 485. Wright v. Campbell, 4 Burr. 2047. Snee v. Prescott, 1 Atk. 245. Lickbarrow v. Mason and Others, 2 T. R. 63. Savignac v. Cuff, ibid. 66. (w) Sect. 4. knew the agent had not authority to make the contract, or that he was acting malâ fide (y). Nor is the agent to be less considered as "intrusted" within the meaning of the act, for that he has obtained any document of title, not directly from the owner, but by means of his being intrusted with the possession of the goods, or of any other document of title, (which meets the above mentioned cases of Phillips v. Hutt and Hatfield v. Phillips (z).) Nor is it material that the goods or documents are delivered after the advance made, if the contract to deliver them be in writing, and such contract and the subsequent delivery be made without notice of the agent's want of authority to make the pledge (a). An exchange of securities, too, is to be deemed a contract made in consideration of an advance, within the meaning of the act (b); which also is an alteration of the old law (c). But the act does not extend to securities for antecedent debts, which are, therefore, left as under the 6 Geo. 4, c. 94. The act also provides, that nothing therein contained shall affect the owner's right of redemption, upon payment of the amount of the lien or restoration of the securities, or from recovering the balance of the produce of the sale of the goods, after satisfying the lien; and also, that in case of the bankruptcy of such agent, the owner of the goods, which shall have been so redeemed, shall be deemed to have paid the redemption-money to the use of such agent before his bankruptcy, or, in case the goods shall not be so redeemed, the owner shall be deemed a creditor of such agent for the value of the goods so pledged at the time of the pledge, and shall, if he shall think fit, be entitled in either of such cases to prove for or set off the sum so paid or the value of the goods, as the case may be (d). In a late case in the Exchequer, where a factor, to whom goods had been consigned by the plaintiff, obtained from the defendant, with whom he was jointly liable on a bill of exchange, a sum of 3002. on the security of the goods, for the purpose of taking up the bill, the Court held, that the transaction did not come within the protection of the act (e). The act too will not apply if the pledger has been entrusted with the bill of lading or other document, by one who is not the true proprietor, or is not intrusted in the character of agent, and the primâ facie evidence under the act from the possession of the document by the pledger is liable to be rebutted (f). And the generality of the terms "agent," "goods and merchandize," is properly restricted to mercantile transactions (g). The act does not appear to extend to the lien of a carrier or a warehouseman, &c., on goods in his hands, against the true owner, for the general balance due from the factor (h). The recent Bankrupt Act contains a corresponding enactment, that on the bankruptcy of an agent entrusted with goods within the meaning of the above act, the owner may prove for the amount paid by him to redeem, as for money paid for the use of such agent before his bankruptcy, or may prove for the value of the goods, if the same are unredeemed (i). Instruments and securities, which form part of the currency of this country, such as bills of exchange, exchequer bills, &c., being negotiable, can, of course, be effectually pledged by an agent entrusted with them, or by any other person in whose hands they may be, in fraud of the true owner; but in the case of foreign securities it rests with the defendant to prove by evidence, that they are negotiable by the course of trade here, or by the custom of the country whence they come (k). And the Court cannot take cognizance of their character when brought before them for the first time (7). From the mere relation of principal and factor, and independently of the above acts, the factor derives authority to sell at such times and at such prices as he may, in the exercise of his discretion, think best for his employer; but, if he receives the goods, subject to any special instructions, he is bound by them, and the authority, whether general or special, is revocable. When, indeed, the factor has advanced money on the goods consigned to him for sale, the authority to sell is, it seems, irrevocable, because coupled with an interest; but still, in that case, on failure of the principal to repay such advances within a reasonable time after demand, the factor cannot sell at any time he pleases, without regard to the interest of the principal and the nature of the authority originally given (m). And he cannot sell the goods, though in the exercise of a sound discretion, contrary to the principal's orders, for the purpose of reimbursing himself for advances made to the principal, independently of and after the consignment. There is not in such a case an irrevocable authority coupled with an interest; inasmuch as such an authority only exists where the authority is given for the purpose of being a part of the security, although such subsequent advances might be a good consideration for an agreement that the original revocable authority to sell should become irrevocable (n). And accordingly an authority given to the factor in consideration of former advances, to sell at the best market price, and repay himself (the former authority having a limit as to price), was held to be revocable(0). There is little to be found in the books concerning pawns of chattels personal. The distinction between a mortgage and a pawn is, that the former passes the whole legal interest to the mortgagee; in the latter, the pawnee has a special property in the goods pawned, to detain them for his security, the general property continuing in the pawner; and upon tender by him of the debt, the property, notwithstanding the refusal, is reduced instantly without claim (p). (i) 12 & 13 Vict. c. 106, s. 179. (k) Lang v. Smyth, 7 Bingh. 284. Glyn v. Baker, 13 East, 509. Gorgier v. Mieville, 3 B. & C. 45. (1) Lang v. Smyth, supra. (m) Smart v. Sandars, 3 M., G. & S. 380. (n) S. C. 17 L. J., C. P. 258, N. S. (0) Raleigh v. Atkinson, 6 Mees. & W. 670. (p) Noy, 137; Cro. Jac. 245; 2 Bulstr. 30. Ryall v. Rolle, 1 Atk. 167. The right of property remaining in the pawner is one that is capable of being passed to a third person, and such assignee may bring trover against the pawnee for a conversion of the chattel (9). The addition of a power of sale is not sufficient to convert the pawnee into a mortgagee (r). It seems, too, that if the creditor parts with the possession, he loses the property in the pledge, unless the possession of the transferree can be considered as his possession (s). As to the Pawnbrokers' Act, vide infra, "Interest" (t). (9) Franklin v. Neate, 13 Mees. & W. 48. (r) Franklin v. Neate, supra. (s) Reeves v. Capper, 5 Bingh. N. C. 136, supra. (t) Bk. 5, Ch. 2. CHAPTER XVII. MORTGAGES OF SHIPS AND FREIGHT. No species of mortgage security requires greater circumspection than that we are about to consider. In almost every other instance of the transfer of property, a defect in the assurance is remediable in equity, on proof of the equitable contract between the parties, as already noticed. But so strict are the provisions of the statute law regulating the change of this nature of property as almost to oust the jurisdiction of equity. Recent statutes have made considerable alterations in this branch of the law; but to arrive at a clear understanding of the subject, it is necessary to advert, not only to the statutes now repealed, but also to the cases decided in reference to them. The 7 & 8 Wm. 3, c. 22 (a), enacted, that no ship or vessel should be deemed a British built vessel qualified to trade to or from the Plantations until registered on the oath of one or more of the owners, before the collector or comptroller of the port to which the ship or vessel should belong; and that in case there should be any alteration of property in the same port by the sale of one or more shares in any ship after registering thereof, such sale should always be acknowledged by indorsement on the certificate of the register. This act it was considered did not preclude a mere parol agreement or contract for sale; and it applied only to ships trading to and from the Plantations. By the act of the 26 Geo. 3, c. 60 (b), the provisions of the 7 & 8 Wm. 3, c. 22, were extended to all British built ships of fifteen tons or upwards; a form of certificate of registry was prescribed, which was to be delivered to the owner; and it was provided that no registry should be made except at the port to which the ship belonged. The 17th section enacted, "that so often as the property in any ship should be transferred in whole or in part, the certificate of the registry of such ship or vessel should be truly and accurately recited in words at length, in the bill or other instrument of sale thereof (c), and that otherwise such bill of sale should be utterly null and void to all intents and purposes." A case (d) occurred soon after the passing of this statute in which it became necessary to consider the effect of its provisions, both at law (a) 7 & 8 Wm. 3, c. 22, is repealed by the 4 Geo. 4, c. 41, so far as relates to the registering of ships or vessels. (b) 26 Geo. 3, c. 60, is repealed by the 4 Geo. 4, c. 41, so far as relates to the registering of ships or vessels. |