regard to bills and notes and there is authority for them both in the statutes making warehouse receipts and bills of lading negotiable, and also in common law decisions. Pollard vs. Reardon, 65 Fed. Rep. 848 (C. C. A.); Munroe vs. Philadelphia Warehouse Co., 75 Fed. Rep. 545. See also Commercial Bank vs. Armsby Co., 120 Ga. 74. But the language at least of other cases would seem to indicate the theory that the form of a document of title, though negotiable, is only evidence of intention and that other evidence is admissible to show intention, to transfer or retain title even as against innocent third persons. See The Carlos F. Roses, 177 U. S. 655, 665; Washburn Crosby Co. vs. Boston & Albany R. R. Co., 180 Mass. 252, 257; Neimeyer Lumber Co. vs. Burlington & Mo. R. R. Co. 54 Neb. 321.

Section 34-[Rights of Person to Whom Document Has Been Transferred.] A person to whom a document of title has been transferred, but not negotiated, acquires thereby, as against the transferor, the title to the goods, subject to the terms of any agreement with the transferor.

If the document is non-negotiable, such person also acquires the right to notify the bailee who issued the document of the transfer thereof, and thereby to acquire the direct obligation of such bailee to hold possession of the goods for him according to the terms of the document.

Prior to the notification of such bailee by the transferor or transferee of a non-negotiable document of title, the title of the transferee to the goods and the right to acquire the obligation of such bailee may be defeated by the levy of an attachment or execution upon the goods by a creditor of the transferor, or by a notification to such bailee by the transferor or a subsequent purchaser from the transferor of a subsequent sale of the goods by the transferor.

This section states the right of any purchaser of bailed goods. One who purchases, therefore, a non-negotiable document of title would gain nothing from the transfer of the document except evidence.

Section 35.-[Transfer of Negotiable Document without Indorsement.] Where a negotiable document of title is trans

ferred for value by delivery, and the indorsement of the tranferor is essential for negotiation, the transferee acquires a right against the transferor to compel him to indorse the document unless a contrary intention appears. The negotiation shall take effect as of the time when the indorsement is actually made.

This follows the analogy of bills and notes, Crawford, Neg. Inst. Law, § 79.

A

Section 36-[Warranties on Sale of Document.] person who for value negotiates or transfers a document of title by indorsement or delivery, including one who assigns for value a claim secured by a document of title unless a contrary intention appears, warrants:

(a.) That the document is genuine.

(b.) That he has a legal right to negotiate or transfer it. (c.) That he has knowledge of no fact which would impair the validity or worth of the document, and

(d.) That he has a right to transfer the title to the goods and that the goods are merchantable or fit for a particular purpose, whenever such warranties would have been implied if the contract of the parties had been to transfer without a document of title the goods represented thereby.

This section except (d) follows the Negotiable Instruments Law, Crawford, § 115. (d) it is believed states the existing law.

Section 37.-[Indorser not a Guarantor.] The indorsement of a document of title shall not make the indorser liable for any failure on the part of the bailee who issued the document or previous indorsers thereof to fulfill their respective obligations.

Mercantile usage in regard to documents of title differs from that in regard to bills and notes in the matter to which this section relates. It states the existing law, even in jurisdictions where statutes have made documents of title negotiable.

Shaw vs. Railroad Co., 101 U. S. 557; Mida vs. Geissmann, 17 Ill. App. 207.

Section 38.-[When Negotiation not Impaired by Fraud, Mistake or Duress.] The validity of the negotiation of a negotiable document of title is not impaired by the fact that the negotiation was a breach of duty on the part of the person making the negotiation, or by the fact that the owner of the document was induced by fraud, mistake or duress to entrust the possession or custody thereof to such person, if the person to whom the document was negotiated or a person to whom the document was subsequently negotiated paid value therefor, without notice of the breach of duty, or fraud, mistake or duress.

This section merely elaborates for the sake of clearness certain special cases within the terms of section 32.

Section 39.-[Attachment or Levy upon Goods for which a Negotiable Document Has Been Issued.] If goods are delivered to a bailee by the owner or by a person whose act in conveying the title to them to a purchaser in good faith for value would bind the owner and a negotiable document of title is issued for them they cannot thereafter, while in the possession of such bailee, be attached by garnishment or otherwise or be levied upon under an execution unless the document be first surrendered to the bailee or its negotiation enjoined. The bailee shall in no case be compelled to deliver up the actual possession of the goods until the document is surrendered to him or impounded by the court.

If the mercantile theory of documents of title, such as bills of lading and warehouse receipts, were carried to its logical extent, no attachment of the goods represented by the document or levied upon them could be permitted while the negotiable document was outstanding. For the mercantile theory is founded upon the idea that a negotiable document of title represents the goods and may be safely dealt with on that assumption. For one and the same reason it is not admissible for the bailee to deliver the goods without taking up an outstanding negotiable receipt for them, and for the law to allow attachment or levy upon the goods, regardless of outstanding negotiable documents. For a similar reason the maker of

negotiable notes is protected by garnishment: in most states by absolutely disallowing such garnishment and in other states by making any garnishment subject to the rights of even a subsequent purchaser for value before maturity of the paper. Likewise by statute in some states an attachment of stock is postponed to a subsequent purchaser of the stock certificate. Clews vs. Friedman, 180 Mass. 55. So in the case of carriers, some protection against garnishment has been given. In most states, if the goods are actually in transit the carrier cannot be garnished, 14 Am. & Eng. Encyc. of Law, 810. A transfer of the bill of lading prevails over a subsequent attachment, Mather vs. Gordon, 59 At. Rep. 424 (Conn.); Robert C. White Co. vs. Chicago & C. R. R. Co., 87 Mo. App. 330; Union Bank vs. Rowan, 23 S. C. 339; and in Peters vs. Elliott, 78 Ill. 321, it was held that an attaching creditor of a consignor was postponed to one who bought the bill of lading subsequently.

It was thought best in this draft not to take the extreme position that no attachment, garnishment or levy could be made on property for which a negotiable document was outstanding, but to cover the essential practical point by, making it a condition of the validity of such seizure that the negotiation of the document be enjoined or the document impounded. The following section expressly gives the court full power to aid, by injunction and otherwise, a creditor seeking to get at a negotiable document and the property covered thereby.

Section 40.-[Creditors' Remedies to Reach Negotiable Documents.] A creditor whose debtor is the owner of a negotiable document of title shall be entitled to such aid from courts of appropriate jurisdiction by injunction and otherwise in attaching such document or in satisfying the claim by means thereof as is allowed at law or in equity in regard to property which cannot readily be attached or levied upon by ordinary legal process.

As the right of legal garnishment of bailed property is limited by the preceding section, section 40 gives the creditor such rights as are included under the heads of bills of equitable attachment or in aid of execution.

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PART III.

PERFORMANCE OF THE CONtract.

Section 41.-[Seller Must Deliver and Buyer Accept Goods.] It is the duty of the seller to deliver the goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract to sell or sale.

This follows section 26 of the English Act.

Section 42.-[Delivery and Payment are Concurrent Conditions.] Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions; that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price and the buyer must be ready and willing to pay the price in exchange for possession of the goods.

This follows section 27 of the English Act.

Section 43. [Place, Time and Manner of Delivery.] (1.) Whether it is for the buyer to take possession of the goods or for the seller to send them to the buyer is a question depending in each case on the contract, express or implied, between the parties. Apart from any such contract, express or implied, or usage of trade to the contrary, the place of delivery is the seller's place of business if he have one, and if not his residence; but in case of a contract to sell or a sale of specific goods, which to the knowledge of the parties when the contract or the sale was made were in some other place, then that place is the place of delivery.

(2.) Where by a contract to sell or a sale the seller is bound to send the goods to the buyer, but no time for sending them is fixed, the seller is bound to send them within a reasonable time.

(3.) Where the goods at the time of sale are in the possession of a third person, the seller has not fulfilled his obligation to deliver to the buyer unless and until such third person acknowledges to the buyer that he holds the goods on the