carrier. Qy., whether or not the carrier is liable for a refusal to deliver without an averment of readiness and willingness to pay on the part of the seller? The carrier's liability for a refusal to accept goods for carriage was dependent at common law on such an averment (k). The words, however, "the expenses must be borne by the seller" appear to cast them on the latter only as between him and the buyer; moreover, an absolute duty of redelivery is cast upon the carrier. Pontifex v. Midland Ry. Co., supra, throws no light upon the point. That case, however, was one of conversion by the carrier. Re-sale by Buyer or Seller. S. 46 (2). sub-sale or buyer. 47. Subject to the provisions of this Act, the Effect of unpaid seller's right of lien or retention or stoppage pledge by in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee. Subject to the provisions of this Act.-See s. 25 (2), re-enacting s. 8 of the Factors Act, 1889 (Appendix of Statutes, post, p. 327). The sale may or may not be accompanied by the transfer from the seller to the buyer of a document of title (as defined by (k) Pickford v. Grand Junction Ry. Co. (1841), 8 M. & W. 372. S. 47. S. 47. s. 1 (4) of the Factors Act, 1889) (1). Firstly, when the sale is not so accompanied, the seller's rights, as unpaid seller, are not affected by the buyer's dealing with the goods by way of sub-sale or pledge (m). Parke, B., in delivering his opinion in Dixon v. Yates, infra, said (n): "There was no delivery to the sub-vendees, and the rule is clear that a second vendee, who neglects to take either actual or constructive possession, is in the same situation as the first vendee, under whom he claims: he gets the title defeasible on non-payment of the price by the first vendee." Seller may be asserting his rights. ILLUSTRATIONS. 1. A. sells goods to B., who accepts bills for the price. B., while the bills are running, re-sells the goods to C., who pays B. the price. B. becomes insolvent, and his bills are dishonoured. A. has not lost his lien against C. Dixon v. Yates (1833), 5 B. & Ad. 313. 2. A. agrees to sell to B. twenty-four hogsheads of sugar f. o. b. a ship, and delivers them on board, and takes the lighterman's receipt therefor in his own name, but does not exchange it for a bill of lading. B. re-sells the sugar to C., who pays B. the price. B. stops payment. A. has not lost his lien. Craven v. Ryder (1816), 6 Taunt. 433 (0). "Unless the seller has assented thereto."-But although the estopped from original seller's rights, as unpaid seller, are unaffected by the buyer's sub-sale or pledge of the goods, the seller may, by giving his assent thereto, be estopped from asserting his rights. The seller may either expressly or by his conduct assent to the subsale or pledge, and so recognize the title of the subsequent buyer or pledgee (p). ILLUSTRATION. A. sells to B. timber, then lying at A.'s wharf, and takes a bill for the price. B. sub-sells to C., who informs A. of the sale, and A. assents thereto, and allows C. to mark the timber. B. becomes insolvent, and the bill is dishonoured. A. has no lien as against C. Stoveld v. Hughes (1811), 14 East, 308. The assent may be given after the sub-sale or pledge has taken place (p), or beforehand, as, e. g., by the seller transferring to the (7) Appendix of Statutes, post, p. 325. (m) Craven v. Ryder (1816), 6 Taunt. 433; per Parke, B., in Dixon v. Yates (1833), 5 B. & Ad. 313; McEwan v. Smith (1849), 2 H. L. C. 309 (transfer of a delivery order before Factors Act, 1877); Griffiths v. Perry (1859), 1 E. & E. 680. (n) 5 B. & Ad. at p. 342. (0) Sometimes inaccurately referred to as the exercise of the right of stoppage in transitu. (p) Stoveld v. Hughes (1811), 14 East, 308 (case of express assent); Pearson v. Dawson (1858), E. B. & E. 448 (case of implied assent). buyer at the time of the original sale a document relating to the S. 47. "other dis position." Sale or other disposition.-The words "other disposition" Meaning of (which are also found in the Factors Act, 1889, ss. 2 (1) and 5), as used here, and the similar words, infra, "pledge or other disposition for value," must, it is submitted, be limited to transactions ejusdem generis, i. e., in the nature of a sale or pledge respectively. The Act does not, like the Factors Act, apply to contracts of exchange of goods, though, as originally drafted, it was made so to apply. It was held, under an earlier Factors Act (6 Geo. 4, c. 94), that the term "disposition" did not include any transaction which was essentially distinct from a sale or pledge (t). See the notes to s. 25 (1), ante, p. 163. Transfer of documents of title by buyer to sub-buyer, &c. Secondly, when the sale is accompanied by the transfer from the seller to the buyer of a "document of title" to the goods sold. The buyer may then, on a sub-sale or pledge of the goods, transfer the document to the sub-buyer or pledgee, and the seller's rights, as unpaid seller, are thereby wholly or partially divested, as the case may be, as shown in this section. Previous to the Factors Act, 1877, a bill of lading was the only Effect thereof document of title the transfer of which from a buyer to a sub- previous to Factors Act, buyer or pledgee divested the seller's rights (u). With regard to all other" documents of title"-dock warrants, delivery orders, warehouse warrants, &c.—it was settled that the subsequent transfer differed in effect from that of a bill of lading, and did the meaning of the Factors Acts, (8) Gunn v. Bolckow, Vaughan & Co. (t) Taylor v. Kymer (1832), 3 B. & Ad. 320; Taylor v. Trueman (1830), 1 M. & M. 453. (u) Lickbarrow v. Mason (1793), 6 East, 21, H. L.; 1 Sm. L. C. (9th ed.) 737, and notes. S 1877. S. 47. Effect of 1877, not impair the original seller's rights of lien and stoppage in transitu, so long as the buyer or his transferee had neither procured the acceptance of the order, nor taken actual possession of the goods, before the order was countermanded (x). As to dock warrants and certificates, special juries of London merchants repeatedly testified that it was the custom to treat a transfer of these documents as an actual transfer of the possession of the goods which they represent (y). It is believed, however, that it was never the custom of merchants to regard delivery orders in the same light. In the ordinary course of business a delivery order is presented to the warehouseman or wharfinger who has the custody of the goods, and exchanged for a warrant; but the goods having then already reached their destination, the negotiation of the delivery order can have no effect on the seller's right of stoppage in transitu (z). By s. 5 of the Factors Act, Factors Act, 1877, the mercantile custom was recognized by the Legislature, and the same effect was given to the transfer of any document of title (including in that definition both dock warrants and delivery orders) which had been previously given at common law to the transfer of a bill of lading. That provision is retained by s. 10 of the Factors Act, 1889 (Appendix of Statutes, post, p. 327), and is substantially reproduced by s. 47 of this Act; that section stating in detail what was contained by implication in s. 10 of the Factors Act, that is, the effect of the transfer of a document of title upon the unpaid seller's rights in the case of a re-sale and pledge respectively, the Factors Act declaring only in general terms that the transfer shall have the same effect as the transfer of a bill of lading had previously had at common law on the right of stoppage in transitu. It must be remembered that the seller's lien is already defeated by the original transfer of the bill of lading from the seller to the buyer, which operates as an actual delivery of the goods. and Factors Act, 1889. Definition of document of title. A document of title to goods.-A document of title, by s. 62(1), has the same meaning as it has in the Factors Act. It therefore includes (see s. 1 (4) of the Factors Act, Appendix of Statutes, post, p. 325), "any bill of lading, dock warrant, warehouse keeper's certificate, and warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing, or (x) McEwan v. Smith (1849), 2 H. L. C. 309; Griffiths v. Perry (1859), 1 E. & E. 680; Farina v. Home (1846), 16 M. & W. 119. (y) See per Dallas, C.J., in Lucas v. Dorrien (1817), 7 Taunt. 278 (dock warrants). (2) As to the law previous to the Factors Act, 1877, see McEwan v. Smith (1849), supra; Farina v. Home (1846), supra; Benj. p. 829; Blackb. p. 415. purporting to authorize, either by indorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented" (a). The important part of this definition is its concluding clause. The question whether any particular document, e.g., a wharfinger's certificate (which is expressly included as a "document of title" in the Factors Act, 1825), comes within the general words of the definition, must depend upon whether the issuer of the document has represented therein that the goods to which it refers are free from any unpaid seller's rights. If the document contains such a representation, the person issuing it is estopped from setting up his claim as unpaid seller to the goods as against a bona fide holder of the document. Thus, when a wharfinger's certificate is in the form of a delivery warrant, making the goods deliverable to "A. B. or his assigns, by indorsement or otherwise," the certificate represents the goods, and is used as proof of the possession or control of them; it is then equivalent to a "document of title." If, on the other hand, the certificate states only that the goods are " ready for delivery," it is not intended to represent the goods nor to entitle the holder to possession of them; it is, then, not equivalent to a "document of title," and no alleged custom of trade can give to it the effect of one (b). Has been lawfully transferred.-At common law a bill of lading is not negotiable like a bank note or a bill of exchange. It is not strictly a document of title in the sense that the holder thereof derives his title from the instrument itself, and not from the title of the person from whom he received it. The assignor of a bill of lading must have a title to the goods represented, or authority to act for one who has. An assignor who is a mere holder of the document, or who has found or stolen it, can transfer no interest to the assignee in the goods represented thereby (c). The expression "lawfully transferred" seems to have reference to this fact, and to require that the transferor of any document of title shall have, as in the case (a) Cf. the definition given in s. 78 of the Larceny Act, 1861 (24 & 25 Vict. c. 96), and of "delivery orders" and "warrants" in ss. 69 and 111 of the Stamp Act, 1891 (54 & 55 Vict. c. 39) (Appendix of Statutes, post, pp. 329, 330). (b) Recent cases upon the construction of trade documents, alleged to be "documents of title," are: Gunn v. Bolckow, Vaughan & Co. (c) Per Cur. in Gurney v. Behrend S. 47. |