S. 43 (1) (b). the goods are in the possession of a third person not being bailee for the seller (a). (See post, p. 231.) (ii) Goods in buyer's pos session as seller's bailee. (iii) Goods in (ii) Goods in the buyer's possession as the seller's bailee.-In this case, which is not a common one, there is no change of possession required, but only a change in the character of the possession, and this is effected by the completion of the contract of sale without any further act of the parties. "After a sale has been shown to exist, the goods being already in actual possession, and the effect of the contract being to transfer the right of possession as well as that of property, the delivery becomes complete of necessity without further act on either side, though of course in this, as in all other cases, the parties may by agreement [under s. 55] provide that this effect shall not take place. If A. has consigned to B. goods for sale, there is nothing in the law to prevent a contract between them by which A. sells the goods to B., coupled with a stipulation that B.'s possession shall continue to be that of a bailee for A. until payment of the price" (b). Mr. Benjamin, however, shows (c) that "if the question were as to the formation of the contract [under s. 4], evidence would of course be required to show that the buyer's possession had become changed from that of bailee to that of purchaser" (d). By this the learned author appears to mean that in these cases some act of the buyer is required inconsistent with the continuance of his former possession, and thus authenticating the contract. (iii) Goods in the possession of a third person. An actual delivery of possession takes place, and the seller's lien is lost, when the agent attorns to the buyer, that is to say, when he agrees, with the assent of both parties, to retain possession of the goods as the buyer's agent (e). When the goods are lying in a warehouse or on a wharf, the mere transfer of a delivery order, dock warrant, or other so-called "document of title" does not (apart from statute) divest the seller's lien until the document has been lodged with the warehouseman, wharfinger, or other custodian of the goods and has been accepted by him (f). Herein the transfer of these documents (a) Benj. p. 840. (b) Benj. p. 812; Pollock on Pos- (d) Edan v. Dudfield (1841), 1 Q. (e) Benj. pp. 159 et seq., 778 et seq., 812. (f) Bentall v. Burn (1824), 3 B. & C. 423; McEwan v. Smith (1849), 2 H. L. 309. Quare, whether evidence of a trade usage to the contrary would be admissible. Benj. p. 838. differs from the transfer of a bill of lading. For, as it has S. 43 (1) (b). already been stated (ante, p. 227), the transfer of a bill of lading to the buyer is equivalent to a delivery of the actual possession of the goods, ipso facto, and without the necessity of attornment on the part of the master of the ship. The reason for this distinction is stated by Lord Blackburn to be that "when goods are at sea, the purchaser who takes the bill of lading has done all that is possible in order to take possession of the goods, as there is a physical obstacle to his seeking out the master of the ship and requiring him to attorn to his rights; but when the goods are on land, there is no reason why the person who receives a delivery order or dock warrant should not at once lodge it with the bailee and so take actual or constructive possession of the goods" (g). warrants, (1) at common law. At common law, dock warrants, warehouse-keepers' certificates, Effect of warrants, or orders for the delivery of goods, have always been transfer of regarded as mere "tokens of authority to receive possession," in delivery spite of the repeated testimony of special juries of London mer- orders, &c. chants that a transfer of these documents, or, at any rate, of dock warrants and certificates, was regarded as a transfer of the possession of the goods they represent. On the other hand, by statute, these documents have been treated as "instruments used (2) by statute. in the ordinary course of business as proof of the possession of goods," and as "authorizing the possessor of such documents to transfer the goods thereby represented." (See s. 1 (4) of the Factors Act, Appendix of Statutes, post, p. 325.) The legislature, in fact, regarded these documents as being, like bills of lading, the symbols of the goods which they represent. The seller may countermand the delivery order if the bailee has not in the meantime attorned to the buyer (h). By s. 47 (q. v.) (and s. 10 of the Factors Act, Appendix of Statutes, post, p. 327), the mere transfer by the buyer, being the lawful transferee thereof, of a document of title as defined by the latter Act(i), to a sub-buyer or pledgee in good faith and for value, divests the original seller's lien wholly or in part respectively. (b) When the third person is not the seller's agent. If the seller allow the buyer to deal with the goods as owner, as, e. g., to mark them or to spend money upon them, and to take away a part of them, this is a delivery of possession sufficient (g) Blackb. p. 415. (h) McEwan v. Smith (1849), 2 H. L. 309; Griffiths v. Perry (1859), 1 E. & E. 680; Pooley v. Great Eastern Ry. Co. (1876), 34 L. T. N. (i) s. 1 (4); see also s. 62 (1) of (b) Not being the seller's agent. S. 43 (1) (b). to divest his lien, although, as was stated at p. 229, ante, it would be insufficient if the goods were in the seller's own possession (k). S. 43 (1) (c) (2) Waiver of lien, express, or implied, (i) By sale on credit. ILLUSTRATIONS. 1. A. sells to B. puncheons of rum, then in A.'s possession, and B. puts his initials on the casks, and gauges and coopers them. This fact does not divest A.'s lien. Dixon v. Yates (1833), 5 B. & Ad. 313. 2. A. sells to B. cigars, which are packed in B.'s boxes, and left on A.'s premises till called for. The packing is no delivery of possession to B., and A. has not lost his lien. Boulter v. Arnott (1832), 1 C. & M. 333. 3. A. sells to B. wine which is lying in A.'s bonded warehouse, and gives B. a delivery order by which he agrees to hold the wine to B.'s order. A.'s possession, as B.'s bailee, being subject to s. 41 (2), B. has not obtained possession through his agent, A., and A. has not lost his lien. Townley v. Crump (1836), 4 A. & E. 58. 4. A. sells to B. some casks of butter and gives him a delivery order on C., the warehouseman, with whom B. lodges the order, and who assents thereto. A. has lost his lien, as B. has obtained possession through C., his agent. Harman v. Anderson (1809), 2 Camp. 243. 5. A. sells goods to B., giving him a delivery order on C., a warehouseman, with whom the goods are lodged. C. refuses to attorn to B. on the ground that the goods are standing in the name of a former owner, and have not been transferred into the name of A. A. has not lost his lien, as C. has not become B.'s agent to hold for him. ington v. Atherton (1844), 8 Scott, N. R. 38. Lack 6. A. sells to B. timber, then lying on the land of C., who is not A.'s agent, B. to have liberty to enter on the land and remove the timber. B. marks all the timber and removes part. A. has lost his lien on all the trees, C.'s land being, under the circumstances, B.'s warehouse, which he could enter when he pleased. Tansley v. Turner (1835), 2 B. N. C. 151. By waiver thereof. The seller's lien arises "by implication of law" (see notes to s. 39 (1), ante, p. 215); it may, therefore, under s. 55, be waived either by express agreement or by implication. "If a mercantile relation, which might involve a lien, is created by a written contract, and security given for the result of the dealings in that relation, the express stipulation and agreement of the parties for security exclude lien, and limit their rights by the extent of the express contract that they have made. Expressum facit cessare tacitum " (1). The seller may also waive his lien by implication in some one of the following ways: (i) By selling on credit (m), i. e., when time is given for payment, and no time fixed for delivery. "It is, of course, competent for the parties to agree expressly that the goods, (k) Tansley v. Turner (1835), 2 Bing. N. C. 151; Cooper v. Bill (1855), 3 H. & C. 722; 34 L. J. Ex. 161; Benj. p. 840. (1) Per Lord Westbury in Chambers v. Davidson (1866), 1 P. C. at p. 305; and see s. 55. (m) See ante, p. 220. though sold on credit, are not to be delivered until paid for; S. 43 (1) (c). but unless this special agreement, or an established usage to the same effect in the particular trade of the parties, can be shown (n), selling goods on credit means, ex vi terminorum, that the buyer is to take them into his possession, and the seller is to trust to the buyer's promise for the payment of the price at a future time" (o). (ii) By taking a bill, note, or other negotiable security in con- (ii) By taking ditional payment of the price. (See notes to s. 38 (1) (b), ante, inconditional bill, note, &c. p. 211.) Here the waiver is conditional only, and the lien revives on the expiration of the period of credit, or on dishonour of the security taken in payment. But it is not every security that will exclude a lien. A bill or note being payable at a distant day will obviously exclude it, as credit is given. "As I understand the law," says Kay, J., in Angus v. McLachlan (p) (a case of an innkeeper), "it is not the mere taking of a security which destroys the lien, but there must be something in the facts of the case, or in the nature of the security taken, which is inconsistent with the existence of the lien, and which is destructive of it." payment. (iii) By assenting to the buyer's reselling or pledging the (iii) By assent goods. The seller's assent may be given either after the sale or pledge has taken place (q), or by anticipation, e.g., by transferring to the buyer some document relating to the goods which is by the custom of the trade negotiable, and which is issued for the purpose of enabling the buyer to re-sell or pledge the goods to which it refers (r). In these circumstances, the seller, by expressly or impliedly assenting to the resale or pledge, is deemed to represent that the goods are free from his lien, and is estopped from afterwards denying the representation to be true. (On this subject, see the notes to s. 47, post, p. 256.) Judgment or decree for the price of the goods.—Sub-s. 2 is merely declaratory of the previous law (s). (n) s. 55, post; and see Field v. Lelean (1861), 6 H. & N. 617; 30 L. J. Ex. 168, overruling on this point, Spartali v. Benecke, infra. (0) Benj. p. 809; Spartali v. Benecke (1850), 10 C. B. 212; 19 L. J. C. P. 293. (p) (1883), 23 Ch. D. at p. 335, quoting Tindal, C.J., in Hewison v. Guthrie (1836), 2 B. N. C. at p. 759. (9) Stoveld v. Hughes (1811), 14 East, 308. (r) Merchant Banking Co. v. Phonix Bessemer Steel Co. (1877), 5 Ch. D.205. Cf. Gunn v. Bolckow, Vaughan & Co. (1875), 10 Ch. Ap. 491 (wharfinger's certificate); Farmiloe v. Bain (1876), 1 C. P. D. 445 ("undertaking" to deliver). (s) Houlditch v. Desanges (1818), 2 Stark. 337; Scrivener v. G. N. Ry. Co. (1871), 19 W. R. 388. to buyer's re-sale or pledge of goods. S. 43 (2). S. 44. Right of stoppage in transitu. Stoppage in transitu. 44. Subject to the provisions of this Act, when the buyer of goods becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price. Subject to the provisions of this Act.-i.e., of ss. 45-47. This section declares generally the right of the seller to stop goods in transit, as laid down in Lickbarrow v. Mason (1), leaving, as is submitted, the mode of the stoppage undefined, save in so far as illustrations of the method are given in s. 46 (1). (See the notes to that section.) S. 44 applies when the property in the goods has passed to the buyer, and the seller has "parted with " the possession thereof by delivery to a carrier or other agent to forward. Such cases must be carefully distinguished from those in which, under s. 13 (1) (a), the seller has reserved "the right of disposal when delivering to the carrier. "When this is the case, the solvency of the purchaser is beside the question. The right of stoppage in transitu is a right to interfere and prevent the buyer from taking actual possession, which he would otherwise have a richt to take, and to undo the effect of an unconditional delivery to an agent to forward" (m), under s. 43 (1) (a). The unpaid seller's right of stoppage in transitu is derived, like his kindred right of lien, from the law merchant (n); it arises solely on the buyer's insolvency, and is based upon the plain reason of justice and equity "that the goods of one man should not be applied in payment of another's debts" (o). "If after the seller has delivered the goods out of his own possession, and put them in the hands of a carrier for delivery to the buyer (which, [under s. 43 (1) (a),] is such a constructive delivery as divests the seller's lien), he discovers that the buyer is insolvent, he may retake the goods, if he can, before they (1) (1793), 2 T. R. 63; 1 Sm. L. C. (9th ed.) p. 737. (m) Blackb. p. 380. (n) Blackb. p. 318. (0) Per Lord Northington, L.C., in D'Aquila v. Lambert (1761), 2 Eden. at p. 77; S. C., Amb. 399. |