signed goods to one Clark, who had acted as his agent; Clark being liable, together with the defendant, on a bill of exchange which had become due, obtained from the defendant 300l. for the purpose of taking up the bill, and at the same time pledged the plaintiff's goods to the defendant. The plaintiff having brought an action of trover for the goods, the judge directed the jury that if they thought the transaction was only a circuitous mode of paying the bill on which the defendant was liable, it was not within the Act; and it was held a right direction, and that the transaction was not protected by the statute (r) The term "agent," according to the meaning of the statute, does not include a mere servant or care-taker, or one who has the possession of goods for carriage, safe custody, or otherwise, as an independent contracting party; but only persons whose employment corresponds to that of some known kind of commercial agent, like that class of factors from which the Act has taken its name (s). And where a wharfinger having received flour in that capacity, and without any authority to sell, disposed of it to a purchaser who had no notice of the want of authority. The wharfinger was in the habit of doing business as a flour-factor; but it was held, nevertheless, that the Act, 6 Geo. 4, c. 94, s. 4, which protects purchases made innocently, and in the ordinary course of business, from agents intrusted with goods, did not (r) Learoyd v. Robinson, 12 M. & W. 745. (8) Hayman v. Flewker, 32 L. J. C. P. 133, per Willes, J. apply to this case, the wharfinger not being an agent within the meaning of the statute (†). And so also where advances had been made upon the security of furniture, in use in a furnished house, to the apparent owner of such furniture; and it afterwards appeared that such apparent owner was the agent intrusted with the custody of the furniture by the true it was held that the transaction was not within the meaning of the statute (u). owner; The agent contemplated by the statute is an agent having mercantile possession, so as to be within the mercantile usage of getting advances made. And, therefore, where the relationship is merely that of master and servant, though such servant be entrusted with the possession of a document of title to goods, and though he be an agent in one sense, yet he is not an agent within the meaning of the Factors' Act, and cannot confer a greater right than he has himself. And so, where a clerk to a wine merchant who was authorised by his employer to sign delivery orders "per procuration," and who, by doing so, obtained possession of dock warrants relating to goods belonging to his master, and afterwards pledged the same with a pawnbroker for an advance of money, bond fide lent upon the security thereof; it was held, that the clerk was not "an agent intrusted with the possession of documents of title to goods,” within the meaning of the statute (x), so as to give validity to the contract; and that his (t) Monk v. Whittenbury, 2 B. & Adol. 484, 1 M. & Rob. 81. (x) 5 & 6 Vict. c. 39. employer might recover possession of such dock warrants from the pawnbroker (y). Although the agent, within the Factors' Acts, must be an agent for the sale of the goods, the operation of the statute is not limited to the case of an agent intrusted with goods for sale upon a particular occasion, if he be an agent intrusted with goods in a transaction relative to or connected with the sale (z). But a person who has been intrusted with goods or the documents of title thereto, as agent for sale, is not, after his authority as agent has been revoked, "an agent intrusted" within the meaning of the Act (a), so as to protect a pledge by him to an innocent pledgee (b). A factor by pledging goods in his possession or under his control as agent, for an amount which does not exhaust their value, has not thereby parted with his control over the goods so as to preclude himself from making a further pledge for the balance of their value, which shall be valid as against the principal under the first section of the Factors' Act, 1842. And so, where some cotton was consigned by the owners to a factor for sale, who deposited the bill of lading with certain brokers, and authorised them to receive and sell the cotton; and the factor subsequently made a further pledge to certain bankers of the balance of the net proceeds of (y) Lamb v. Attenborough, 31 L. J. Q. B. 41, 1 B. & S. 831. (z) Baines v. Swainson, 4 B. & S. 270, 32 L. J. Q. B. 281; and see, per Willes, J., in Fuentes v. Montis, 37 L. J. C. P. 141. (a) 5 & 6 Vict. c. 39, s. 1. (b) Fuentes and another v. Montis and another, 37 L. J. C. P. 137; 38 L. J. C. P. 95; L. R. 3, C. P. 268; L. R. 4, C. P. 93. the cotton, by order in writing communicated to and assented to by the brokers; it was held, that the pledge to the bankers was valid as against the owners of the cotton, under the Factors' Act, 1842 (e). Review of authorities, as to who is an "agent It appears, therefore, from the preceding authorities, that the agent authorised by the statute to make a valid pledge of the goods of his principal, must be an agent in mercantile possession of the goods for sale, or for a purpose connected with the sale thereof by such agent; and that the possession of goods (or documents of title thereto) as a clerk, servant, warehouseman, carrier, or mere care-taker, is not within the meaning of the statute. But where the agent is in such mercantile possession as aforesaid, though his employment be an isolated transaction, and out of the ordinary course of his business, yet it will be sufficient if he be an agent intrusted with such possession for sale of the goods: and although the agent obtain such possession of the goods, or documents of title thereto, by a fraud on his principal, if the pledgee be without notice of the fraud, the transaction will be protected; but if the pledge be not bonâ fide on the part of the pledgee (which is a question for the jury), it will not be within the meaning of the statute; nor if the authority of the pledgor, as such agent, has been previously revoked, though the pledgee be without notice of such revocation. (e) Portalis v. Tetley, L. R. 5 Eq. 140, 37 L. J. Ch. 139. Exchanges of pledges protected, if bona fide. Where any such contract or agreement for pledge, lien, or security, is made in consideration of the delivery or transfer to such agent of any other goods or merchandise, or document of title, or negotiable security, upon which the person so delivering up the same had, at the time, a valid and available lien and security in respect of a previous advance, by virtue of some contract made with such agent; such contract, if bond fide on the part of the person with whom made, is to be deemed a contract made in consideration of an advance within the meaning of the Act; and is to be as valid and effectual as if the consideration for the same had been a bona fide present advance (d). But no lien beyond value of goods originally pledged. But the lien acquired under such last-mentioned contract, upon the goods or documents deposited in exchange, is not to exceed the value of the goods or documents delivered up and exchanged (e). Previously to this section, a factor could not lawfully withdraw goods that were in pledge for an advance, and substitute others in their stead belonging to another principal (ƒ). But under the above section, bonâ fide deposits in exchange of others will be protected to the extent of the value of the goods given up. And where a person has pledged goods with a banker, upon the guarantee of a third person, for the payment of a debt; if the guarantor afterwards (d) 5 & 6 Vict. c. 39, s. 2. f) See Bonzi v. Stewart, ante, p. 49. (e) 5 & 6 Vict. c. 39, s. 2. |