Unless, therefore, it can be ascertained who is the legal owner and holder of the document of title, it cannot be known who is the owner of the goods themselves. Moreover, the needs of commerce require that the document of title shall show the exact condition of the title of the goods described free from secret liens, and that when the goods have been taken from the possession of the bailee, the document of title shall be surrendered and cancelled.5 It is evident that if goods represented by negotiable documents of title could be attached or levied upon, and sold in execution without the surrender or impounding of the document of title, the instrument might continue to circulate subject to the attachment lien, or perhaps, representing a subject matter, which, after the voluntary sale by the owner by virtue of his negotiation of the document of title, the law had transferred in invitus, and innocent purchasers for value and without notice might be defrauded. To prevent this, the courts, in the administration of the law merchant, and by virtue of statutes in many cases, have held that the goods represented by negotiable documents of title could not be attached or levied upon in execution, unless the document of title itself was impounded, or its transfer enjoined." 4. Walker v. Detroit Railroad Co., 49 Mich. 446. 5. Mechanics' & Traders' Ins. Co. v. Kiger, 103 U. S. 352. "Their (the warehousemen's) duty under the law was not to issue receipts until they had the property actually in store, and not to deliver the property until the receipts were surrendered for cancellation." Mechanics' & Traders' Ins. Co. v. Kiger, 103 U. S. 352. 6. Peters v. Elliott, 78 Ill. 321; Greenbaum Bros. v. Megibben, 73 Ky. (10 Bush) 419; White Co. v. Chicago, etc., Ry. Co., 87 Mo. App. 330; Adamson v. Frazier, 40 Ore. 273; Roudebush v. Hollis, 21 Pa. C. C. 324; Union Nat. Bank v. Rowan, 23 S. C. 339; Saunders v. Bartlett, 59 Tenn. (12 Heis.) 316; Woodruff v. Ry. Co., 39 Tenn. (2 Head) 87. "Attachment or levy upon goods for which a negotiable (warehouse) receipt has been issued. If goods are delivered to the warehouseman 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 receipt is issued for them, they cannot thereafter, while in the possession of the warehouseman, be attached by garnishment or otherwise, or be levied upon under an execution, unless the receipt be first surrendered to the warehouseman or its negotiation enjoined. The warehouseman shall in no case be compelled to deliver up the actual possession of the goods until the receipt is surrendered to him, or impounded by the court." Public Acts Conn. 1907, ch. 220, § 25. Carriers have no delectus personarum, but are bound to carry for any one who takes appropriate steps to make them do so. Hallgarten v. Oldham, 135 Mass. 1, 11. For this reason, therefore, and not the ground of public policy, the weight of authority holds that carriers cannot be gar nisheed for property in their hands for the purpose of transportation, while such property is in actual transit, at the time of the service of the garnishment process, for it would be unreasonable and unjust to subject carriers to the cost and trouble of such a process because he has in his possession goods which the law compels him to carry. Ill. Cen. Ry. Co. v. Cobb, 48 Ill. 402; Mich. Central Ry. Co. v. Chicago, etc., Ry. Co., 1 Ill. App. 399; Stevenot v. Eastern Ry. Co., 61 Minn. 104; Bates v. Chicago, etc., Ry. Co., 60 Wis. 296. This exemption from liability to garnishment does not apply to private carriers. Elser v. Rommel, 98 Mich. 74, 76. Massachusetts courts hold that a carrier may be garnisheed (Adams v. Scott, 104 Mass. 161, 164; Union Mutual Life Ins. Co. v. Holbrook, 70 Mass. [4 Gray] 235), and Missouri courts seem inclined to follow the Massachusetts rule. Landa v. Holck, 129 Mo. 663. See Bingham v. Lamping, 26 Pa. St. 340; Roudebush v. Hollis, 21 Pa. C. C. 324. The owner sent a bill of lading for cotton to his factors. While the cotton was on the wharf, but before the factor had taken possession of it, it was attached by a creditor of the owner. It was held that the title was still in the consignor, and that the possession of the bill of lading was not possession of the cotton itself, but merely gave the factors authority to take possession of the goods. Saun ders v. Bartlett, 59 Tenn. (12 Heisk.) 316; Oliver v. Moore, 59 Tenn. (12 Heisk.) 482; Woodruff v. N. & C. Ry. Co., 39 Tenn. (2 Head) 87. The plaintiff discounted a draft upon the security of an attached bill of lading for a carload of potatoes. Held, that his right or title, if not the absolute ownership of the goods, was, at least, a right of property, and of exclusive possession as security for the money so advanced, and was superior to that of the attaching creditor of the consignor. The court saying, "It is not necessary to hold that the plaintiff, by discounting the draft as detailed in the finding, became the absolute owner of the potatoes; it is enough for the purposes of this case, to say that he thereby acquired a right to the exclusive possession of them, and a right of property in them as security for the money advanced upon them by him; and by all the authorities the plaintiff, upon the facts found, acquired, at least, such a possession of the potatoes and such a right of property in them. New Haven Wire Co. Cases, 57 Conn. 352; First Nat. Bank v. Crocker, 111 Mass. 163; First Nat. Bank v. Dearborn, 115 Mass. 219; Forbes v. B. & L. Ry. Co., 133 Mass. 154; Dows v. Nat. Exc. Bank, 91 U. S. 618; Commercial Bank v. Pfeiffer, 108 N. Y. 242; Emery's Sons v. Irving Nat. Bank, 25 Ohio St. 360. It follows from this that while the potatoes remained in the car at New Haven, the possession of the carrier was, as against the defendant, the possession of the plaintiff." Mather v. Gordon, 77 Conn. 341, 344. 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. This section is merely declaratory of the common law and provides that the provisions of the last section do not impliedly exclude them.1 remedies to 1. "Creditors' reach negotiable receipts.-A creditor whose debtor is the owner of a negotiable receipt shall be entitled to such aid from the courts of appropriate jurisdiction by injunction and otherwise, in attaching such receipt 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." Warehouse Receipts Act, 1907, ch. 220, § 26. 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 the same, in accordance with the terms of the contract to sell or sale. DELIVERY.-Delivery is the vendor's surrender of the possession and dominion over the goods to the buyer. It is the seller's chief duty of performance of the contract of sale, and 1. The word delivery is used in several senses. 2 Mechem on Sales, § 1117; Benjamin on Sales, § 674 and p. 718. It is used: a. To denote the chief duty of performance by the vendor. This is the sense in which it is used in this section. 2 Mechem on Sales, §§ 1116, 1118; Benjamin on Sales, § 674. b. To denote the designation or appropriation of unascertained goods sufficient to pass the title and risk. 1 Mechem on Sales, § 695 et seq; 2 Mechem on Sales, § 1117; Benjamin on Sales, § 675. See § 19. 66 The term delivery" is used in law of sales in very different senses. It is used in turn to denote transfer of title and transfer of possession and where the parties have agreed, and the specific articles are appropriated and accepted, then independently of the statute of frauds, it is often said there is a sufficient delivery to pass the title, although there be no transfer of possession. And this must be so in order to be consistent with the lien which remains to the vendor for the price. Morse v. Sherman, 106 Mass. 430, 433. Citing Simmons v. Swift, 5 B. & C. 857; Dixon v. Yates, 5 B. & Ad. 313. c. To denote the vendor's correlative 4 act of the vendee's "actual receipt" required by the statute of frauds. 1 Mechem on Sales, § 355; 2 Mechem on Sales, § 1117; Benjamin on Sales, § 675. See § 4. d. To denote the change of possession required to prevent the presumption of fraud upon creditors. 2 Mechem on Sales, §§ 962, 1117; Benjamin on Sales, p. 718. See § 26. e. To denote the loss of possession sufficient to destroy the seller's lien for the price. 2 Mechem on Sales, §§ 1117, 1482; Benjamin on Sales, 676. See § 56. f. To denote the loss of control sufficient to terminate the right of stoppage in transitu. Benjamin on Sales, §§ 676, 865. See § 58. 66 6 2. Definition. Delivery' means voluntary transfer of possession from one person to another." Sec. 76. 3. 2 Mechem on Sales, § 1117; Benjamin on Sales, § 676. 4. Knight v. Mann, 118 Mass. 143; Gowing v. Knowles, 118 Mass. 232; 2 Mechem on Sales, § 1118; Benjamin on Sales, §§ 674, 677. "In every contract of sale there is, on the part of the vendor, an obligation not only to transfer the property in the thing sold, but also to deliver possession to the buyer." Calcutta Co. v. De Mattos, 32 L. J. Q. gives the vendor the right to sue for "goods sold and delivered " as distinguished from "goods bargained and sold," and to defend an action for non-delivery. The parties may make any lawful agreement they choose concerning the time, place or manner of delivery. It is an implied term in the absence of express agreement to that effect that the seller shall deliver possession and control to the buyer. The construction of the implied agreement is the subject of later sections. Payment is a concurrent condition with delivery, when the contract is silent on the subject," but it may be made an express condition precedent,10 or it may be expressly postponed, and terms of credit agreed upon." 11 If the contract is silent in the premises, no duty rests upon the seller to send the goods to the buyer;12 but this duty may be laid upon the seller by express agreement to that effect.13 Even where the buyer is to take the goods, notice of readiness to deliver may be a duty incumbent on the seller as in the case of manufactured goods; or vice versa where the seller is to send the goods, notice 14 B. 309, 322, 335. S. P. Buddle v. 5. 2 Mechem on Sales, § 1117; Benjamin on Sales, p. 718. To maintain an action for "goods sold and delivered," "it is not enough that the goods have been identified and set apart for the vendee so as to pass the title to him subject to the vendor's lien for the price, but it is necessary that the possession should have been given to the vendee in performance of the contract, so that he has not only the title but also the possession. This delivery may be made to an agent of the vendee, and the well-established rule is that where such a delivery is made to a common carrier at the express request of the vendee, or where such a request may be implied by the previous dealings between the parties or by a wellknown custom or usage, it is prima facie a delivery to him." Sawyer Medicine Co. v. Johnson, 178 Mass. 374, 377. Citing Frank v. Hoey, 128 Mass. 263, and cases cited; Wigton v. 6. Stephens v. Gifford, 137 Pa. St. 219; Calcutta Co. v. DeMattos, 32 L. J. Q. B. 322; 2 Mechem on Sales, § 1118. The buyer may waive delivery. Whitaker v. Sterling, 136 Mich. 647. 7. 2 Mechem on Sales, §§ 1116, 1118. The obligation to deliver if not expressed is implied. Gray v. Walton, 107 N. Y. 254; Buddle v. Green (1857), 3 H. & N. 906. 8. Secs. 42 and 43. 10. 1 Mechem on Sales, §§ 538-557. 11. Seattle R. R. Co. v. Brewing Co., 5 Wash. 462; 2 Mechem on Sales, 1410. A term of credit may be inferred from usage of trade. Brooks V. Paper Co., 94 Tenn. 701. 12. Benjamin on Sales, § 679. See § 43. 13. 2 Mechem on Sales, § 1118. 14. Hunter v. Wetsell, 84 N. Y. 549; Bliss Co. v. U. S. Incandescent |