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are shipped shall be taken for the purposes of this act to have been intrusted therewith, unless the contrary shall appear or be shown in evidence by the person disputing such fact." By sect. 2, "Any person, body politic or corporate, may accept any goods or bill of lading, in deposit or pledge from any consignee, and enforce the right possessed by such consignee, but shall acquire no further right than was possessed by the consignee at the time of the pledge." The 3rd section provides, that this act shall not be construed so as to prevent the owner from demanding and recovering the goods from the factor before they have been pledged, or from his assignees in the event of his bankruptcy; nor from demanding or recovering from any person, or his assignees in case of his bankruptcy, or from any body corporate, the goods deposited or pledged, upon repayment of the money, or on restoration of the negotiable security, or on payment of a sum of money equal to the amount of such security; nor from recovering from such person, or body corporate, any balance remaining in his hands as the product of the sale of such goods, after deducting thereout the amount of the money or negotiable security; provided that in case of the bankruptcy of such factor, the owner of the goods so pledged and redeemed shall be held to have discharged, pro tanto, his debt to the bankrupt's estate.

Shortly afterwards it was found expedient to alter and amend the foregoing statute, and to make further provisions; and therefore, by stat. 6 Geo. IV. c. 94, [5th July, 1825,] it was enacted, that any person intrusted for the purpose of consignment or sale with any goods, and who shall have shipped such goods in his own name, and any person in whose name any goods shall be shipped by any other person, shall be deemed to be the true owner, so far as to entitle the consignee to a lien thereon, in respect of any money or negotiable security advanced or given by such consignee to or for the use of the person in whose name such goods shall be shipped, or in respect of any money or negotiable security received by him to the use of such consignee, in the like manner and to all intents and purposes, as if such person was the true owner; provided such consignee shall not have notice by the bill of lading or otherwise, at or before the advance or receipt of the money or negotiable security, that the person shipping, or in whose name the goods are shipped, is not the actual and bonâ fide owner; provided also, that the person in whose name any such goods are to be shipped, shall be taken, for the purpose of this act, to have been intrusted therewith for the purpose of consignment or of sale, unless the contrary be made to appear, by bill of discovery or otherwise, or be made to appear or be shown in evidence by any person disputing such fact; and by sect. 2, that any person intrusted with (z),

(z) See Phillips and others v. Huth and others, 6 M. & W. 572, and post, p. 824.

and in possession of, any bill of lading, India warrant, dock warrant, warehouse keeper's certificate, wharfinger's certificate, warrant or order for delivery of goods, shall be deemed to be the true owner of the goods described in the said several documents, so far as to give validity to any agreement (6), thereafter entered into by such person with any person, for the sale or disposition of the goods, or any part thereof, or for the deposit or pledge thereof, or any part thereof, as a security for any money or negotiable instrument advanced or given by such persons, &c. upon the faith of such several documents; provided such persons, &c. shall not have notice by such documents, or otherwise, that the person intrusted is not the actual and bonâ fide owner of the goods so sold or pledged: provided (a) that in case any person, &c. shall accept any such goods in deposit or pledge from any such person so in possession and intrusted, without notice, as security for any debt or demand due from such person so intrusted and in possession to such person, &c. before such deposit or pledge, then such person, &c. so taking such goods in deposit or pledge, shall acquire no further right in the goods or any such document than was possessed by the person so possessed and intrusted at the time of such deposit or pledge as a security; but such person, &c. so taking such goods in deposit or pledge, shall and may acquire and enforce such right as was possessed by such person so possessed and intrusted: and, by sect. 4, any person, &c. may contract with any agent intrusted with any goods (7), or to whom the same may be consigned, for the purchase of any such goods, and receive the same of, and pay the same to, such agent; and such contract and payment shall be binding against the owner of such goods, notwithstanding such person, &c. shall have notice, that the person making such contract, or on whose behalf such contract is made, is an agent, provided such contract and payment be made in the usual and ordinary course of business, and that such person, &c. shall not, when such contract is entered into or payment made, have notice that such agent is not authorized to sell the goods or to receive the purchase-money. And by the 5th

(a) Sect. 3.

(6) Persons who would avail themselves of the provisions of this act, must prove the agreement. Evans v. Truman, 2 B. & Ad. 886. In this case the defendant had received, by way of pledge, India warrants from the plaintiff's broker, who had been intrusted with them, without any authority to pledge or sell, under a written agreement. It was holden, that defendant was bound to produce the agreement.

(7) It is difficult to say precisely what is meant by "an agent intrusted with goods:" but a wharfinger is not such a person. Monk v. Whittenbury, 2 B. & Ad. 486.

section (8), any person, &c. may take any such goods or any such document in deposit or pledge from any such factor or agent, notwithstanding such person, &c. shall have notice, that the person making such deposit or pledge is a factor or agent; but then such person, &c. shall acquire no further right to the goods, or document for the delivery thereof, than was possessed or might have been enforced by the factor or agent at the time of such deposit or pledge as security; but such person, &c. shall and may possess and enforce such right as was possessed and might have been enforced by such factor or agent at the time of such deposit or pledge. The right of a factor to pledge under this section depends upon the question whether, upon the face of the whole account between them, the principal is indebted to the factor (a).

It is, however, provided (b), that "nothing herein contained shall be construed to prevent the true owner of the goods from recovering the same from his factor or agent before a sale, deposit, or pledge, or from the assignees of such factor or agent in the event of his bankruptcy; nor to prevent the owner from recovering from any person, &c. the price agreed to be paid for the purchase of such goods, subject to any right of set-off on the part of such person, &c. against such factor or agent; nor to prevent the owner from recovering from such person, &c. the goods deposited or pledged, upon repayment of the money, or on restoration of the negotiable instrument advanced on the security thereof by such person, &c. to the factor or agent, and upon payment of such further sum of money or on restoration of such other negotiable instrument (if any) as may have been advanced by the factor or agent to the owner, or on payment of money, equal to the amount of such instrument; nor to prevent the owner from recovering from such persons, &c. any balance remaining in his hands as the produce of the sale of the goods, after deducting the money or negotiable instrument advanced on the security thereof; and in case of the bankruptcy of the factor or agent, the owner of the goods so pledged and redeemed shall be held to have discharged pro tanto his debt to the estate of such bankrupt." See Taylor v. Kymer, 3 B. & Ad. 320, where the (a) Robertson v. Kensington, 5 M. & Ry. 381.

(b) Sect. 6.

(8) A broker having accepted bills for his principal on the security of goods then in his hands, pledged the goods with a person who had notice of the agency, but did not inform the principal of this transaction; it was holden*, that under this section the broker could transfer such right only as he had, which was a right to be indemnified against the bills which he had accepted, and that the principal, having satisfied those bills, was entitled to have back his goods from the pawnee without paying the amount for which they were pledged.

• Fletcher v. Heath, 7 B. & C. 517. The provision in this section refers to a deposit or pledge only, made distinctly as such. Thompson v. Farmer, M. & Malk. 48.

transfer of India warrants under the circumstances was holden not to be a sale or disposition within the meaning of the foregoing statute. The remaining sections of this statute relate to the prosecution of agents fraudulently pledging the goods of their principal.

Before the passing of this act, or rather the previous act, the 4 Geo. IV. c. 83, it was settled, that a factor or agent for sale had not any power to pledge, whether he was in possession either of the goods themselves, or of the symbol of the goods, and even though the symbol might bear on the face of it some evidence of the property being in himself; as in the case of a bill of lading, in which he was the consignee or indorsee. This rule was thought to be attended with hardship on persons dealing with factors on the faith of their being principals, and the legislature, by the 4 Geo. IV. first relaxed this rule, and by the 6 Geo. IV. extended that relaxation.

This statute gives validity only to pledges by a factor of documents with which the real owner has previously intrusted him, and does not extend to the pledge of documents created by the factor himself (c).

The 2nd section of the 6th Geo. IV. came under the consideration of a court in Phillips v. Huth (d), when Parke, B., delivered a very elaborate judgment of the court, for the express purpose of distinctly defining the meaning of the statute: adverting to the 2nd section, he said, "It is very clear, that this section relaxes the rule of the common law only with respect to those who deal with persons who are not merely in possession of, but are also intrusted with, the symbol of property. However great the hardship may be on innocent persons, and whatever they may have supposed from finding another in possession of a document bearing the indicia of property in himself, still the statute does not apply, and they can acquire no title by virtue of it, unless the document has been intrusted to that person. If the legislature had intended to make the simple possession of such instruments sufficient to enable the party having them to make a good title, they no doubt would have so provided; if they had, the innocent party dealing with him would have been protected, but the innocent owner would, in that case, have suffered, if the document had been taken from him by felony or fraud. But by providing that a person should be intrusted as well as in possession, the inconvenience is obviated. The statute applies only to written documents relating to goods, and not to goods themselves; and for this reason-these documents may be made to designate the owner's name, which the goods themselves, generally speaking, cannot; and it is clear that the legislature intended that those persons only should suffer by the frauds of their agents, who have intrusted them with the evidence of title, and

(c) Per Alderson, B., in Close v. (d) 6 M. & W. 572. Holmes, 2 M. & Rob. 25.

omitted to take those precautions which might have prevented them deceiving others. It is therefore necessary, in order to give effect to this clause, that the owner should have "intrusted" the factor with the document; not that it is necessary that the owner should have had personal possession of the document, so as to be able to mark it with his name, and himself delivered it to the factor; for if his own agent, general or special, puts it into the hands of the factor with the factor's name on it, or if the factor be instructed by the owner to obtain the document in that state, and does so, no doubt he is "intrusted" by the owner with it within the meaning of the act. But in order to constitute an intrusting of such a document, it is necessary that the owner should have intended the factor to possess it in that form, at the time when he had the possession. Intrusting with the document is essentially different from enabling a person to become possessed of it-from giving him the means of obtaining it.

Evidence. It is a general rule of evidence, that where a witness has a direct interest in the event of a cause, his testimony cannot be received (9). But, from necessity, an exception has been introduced in the case of factors and brokers, because, from the nature of the transactions in which they are engaged, the contracts they make for other persons cannot be proved without them. Hence

(9) By statute 3 & 4 Will. IV. c. 42, s. 26, in order to render the rejection of witnesses, on the ground of interest, less frequent, it is enacted, "that if any witness shall be objected to as incompetent, on the ground that the verdict or judgment would be admissible in evidence for or against him, such witness shall nevertheless be examined; but, in that case, a verdict or judgment in that action in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him, nor shall a verdict or judgment against the party, on whose behalf he shall have been examined, be admissible in evidence against him or any one claiming under him." And by sect. 27, "the name of every witness objected to as incompetent, on the ground that such verdict or judgment would be admissible in evidence for or against him, shall, at the trial, be indorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement or entry shall be sufficient evidence that such witness was examined, in any subsequent proceeding in which the verdict or judgment shall be offered in evidence.' The object of this statute is to supersede the necessity and to save the expense of a release. The effect is to make the witness competent where the only interest is, that the verdict or judgment may be used for or against the witness. If the interest extend beyond that, then a release is necessary. See Bowman v. Willis, 3 Bingh. N. C. 669; Yeomans v. Legh, 2 Mee. & Wels. 419, and the other cases on this statute cited ante, p. 375, 650.

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