dering the goods. And the borrower cannot discharge himself from his liability in such an action, unless he can show that there was a special agreement to stand to the pledge only (p). And where a sum of money was advanced on the security of a deposit of shares in a commercial company, and the lender agreed to give the borrower twenty-one days' notice in writing before proceeding to compel repayment of any part of the money; it was also agreed that upon each repayment a proportionate amount of the shares should be given up and transferred to the borrower or his order: it was held, that the lender, after twenty-one days' notice, might sue the borrower in an action of debt for the money lent; the return of the shares not being a condition to be performed before or concurrently with the payment (9). (p) South Sea Co. v. Duncombe, Str. 919; Lawton v. Newland, 2 Stark. 73; Emes v. Widdowson, 4 C. & P. 151. (2) Scott v. Parker, 1 Q. B. 809. PART II. PLEDGES BY FACTORS AND AGENTS. At common law before the Factors' acts. A FACTOR had no power at Common Law to pledge the goods of his principal, nor any document of title relating thereto (a), although the principal had drawn bills on such factor, to be provided for out of the proceeds of sale of the goods consigned to him (b). Nor could he pledge such goods by indorsement and delivery of the bill of lading, though the indorsee did not know that he was a factor (c). A factor could not pledge unless the owner of the goods armed him with such indicia of property as to enable him to deal with them as his own (d). If he pledged the goods of his principal, the latter might recover them, or their value, in trover against the (a) Paterson v. Tash, 2 Str. 1178; Graham v. Dyster, 6 M. & S. 1, 14; Pickering v. Busk, 15 East, 43; De Bouchot v. Goldsmid, 5 Ves. Junr. 211; Peet and another v. Baxter, 1 Stark. 472. (b) Gill v. Kymer, 5 Moore, 503; Fielding v. Kymer, 2 B. & B. 639. (c) Newsom v. Thornton, 6 East, 17; Guichard v. Morgan, 4 Moore, 36; Martini v. Coles, 1 M. & S. 140. (d) Boyson v. Coles, 6 M. & S. 14. pawnee, on tendering to the factor the amount due to him, and without any tender to the pawnee (e). And if goods were delivered to a person on a contract of sale or return, such person had no authority to pledge them (ƒ). Statutory powers as to pledges, &c., by Factors. The Factors' Acts are 4 Geo. 4, cap. 83, 6 Geo. 4, cap. 94, and 5 & 6 Vict. cap. 39. These acts do not apply to persons in possession in their own rights, nor to mere servants or care-takers, but only to persons intrusted as factors or agents for sale, or for purposes relating to or connected with the sale of the goods (g). Persons intrusted with goods for sale to be deemed Owners, so as to be entitled to a lien thereon. Under section 1, of the first-mentioned statute, persons intrusted for the purpose of sale, with any goods, wares or merchandise, by any shipper, (whether shipped in his own name or for any other person,) are to be deemed owners thereof, so as to entitle the consignee to a lien in respect of money advanced thereon by such consignee for the use of such shipper or other person, or in respect of money received by him for the use of such (e) Daubigny v. Duval, 5 T. R. 604; McCombie v. Davies, 7 East, 5. (f) Delauney v. Barker, 2 Stark. 539. (g) Jauberry v. Britten, 5 Sc. 655; Jenkyns v. Usborne, 7 M. & Gr. 700; Van Casteel and others v. Booker and others, 18 L. J. Ex. 9; Close and another v. Holmes, 2 M. & R. 25; Wood v. Rowcliffe, 6 Hare, 191; Lamb v. Attenborough, 31 L. J. Q. B. 41; Baines v. Swainson, 4 B. & S. 270; Fuentes v. Montes, L. R. 4, C. P. 93, 38 L. J. C. P. 95. consignee, in like manner, to all intents and purposes, as if such person were the true owner of such goods, &c. : provided such consignee do not have notice at or before any such advance, that the person in whose name the goods are shipped is not the bond fide owner. But such last-mentioned person is to be deemed intrusted therewith, unless shown to the contrary by the person disputing the fact (h). Authority to consignee to pledge goods or bill of lading. Under section 2, any person may accept and take goods, wares, or merchandise, or the bill of lading for the delivery thereof, in pledge from any consignee thereof; but such person will thereby acquire no further title or interest in the goods, or bill of lading, than that possessed by the consignee at the time of such pledge (i). Owner's rights as regards goods in hands of factor assignees in bankruptcy, or pledgee. Under section 3, the true owner of such goods, &c., may, notwithstanding, demand and recover the same from his factor or agent, before the same have been pledged; or from his assignee in bankruptcy; or he may recover them from any such person to whom pledged, on payment of the advance; or he may recover the balance of monies in the hands of such person, as the (h) 4 Geo. 4, c. 83, s. 1. This statute was amended by 6 Geo. 4, c. 94, infra, p. 46. (i) 4 Geo. 4, c. 83, s. 2. produce of sale of the goods, after deducting the advance made thereon (k). Set-off by buyer against Factor. It has been held under the above statute, that if a buyer purchase goods of a factor with the knowledge that he sells as factor, and not as principal, the buyer may set off (in an action brought by the principal for the price of the goods) payments made by him to the factor (1), but he cannot set off a debt due to him from such factor (m). Persons intrusted with bills of lading, &c., to be deemed owners of the goods, &c., for purpose of making valid contracts of sale or pledges of such goods, &c. Under the 6 Geo. 4, cap. 94, section 2, any person intrusted with and in possession of any bill of lading, India warrant, dock warrant, warehouse-keeper's certificate, wharfinger's certificate, warrant or order for delivery of goods, is to be deemed and taken to be the true owner of the goods, &c., described and mentioned in such documents respectively, so far as to give validity to any contract by such person so intrusted and in possession as aforesaid, with any other person for the sale or disposition of the said goods, &c., or for the deposit or pledge thereof as a security for any money advanced upon the faith thereof, provided such other person do not (k) 4 Geo. 4, c. 83, s. 3. (1) Warner v. McKay, 1 M. & W. 591. |