the pawnee (a) has no notice of such revocation before making his advances (b).

A factor's pledge of his principal's goods, to secure his own antecedent debt, is only valid against his principal to the extent of the factor's interest in the goods pledged (c).

A vendor of goods, or any person on his behalf, who continues, or is in possession of, the documents of title thereto, may pledge such goods or documents as effectually as if he were "an agent entrusted" by the vendee within the Factors' Acts, with any person who has no notice of the previous sale (d).

A vendee of goods sold or contracted to be sold, or any person on his behalf, who obtains the possession of the documents of title thereto from the vendor or his agents, may in like manner (and subject to the same exception as to notice) pledge such goods or documents as if he were an agent entrusted with them by the vendor (e).

The endorsement or transfer to any person as vendee or owner, of any document of title to goods, followed by such vendee or owner's indorsement or transfer of the document to a bona fide pledgee, will defeat an unpaid vendor's right to stop in transitu to the same extent as the transfer of a bill of lading (f).

The term "document of title" includes any bill of lading, India warrant, dock warrant, warehousekeeper's certificate, warrant or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing, or purporting to authorise, either by indorsement or by

(a) 40 & 41 Vict., cap. 39, sec. 2.

(c) 6 Geo. 4, cap. 94, sec. 3. Blandy v. Allen, 3 C.

Heath, 7 B. & C., 517.

(b) Ibid. & R., 447. Fletcher ▼.

(d) 40 & 41 Vict., cap. 39, sec. 3.
(f) 40 & 41 Vict., cap. 39, sec. 5.

(e) Sec. 4.

delivery, the possessor of such document to transfer or receive goods thereby represented (a).

A pawnee claiming the benefit of the Factors' Acts, must be prepared to prove that he has made his advance in good faith, and without notice that the pawning agent has not authority to make the pledge, or that in making it, he is acting malá fide against his principal (), or other true owner of the property (c). Such notice may be express, as by direct communication to the pawnee of the agent's mala fides; or implied, as by being aware of circumstances which must lead a reasonable man, applying his mind to them, and judging from them, to the same conclusion. Mere suspicion will not amount to notice, Neither will information that the agent has a power of sale only. The principal must have forbidden the pledge, and the pawnee must have knowledge of such prohibition, in order to deprive him of the protection of the Act (d). It is for the jury to find bona fides or mala fides as a fact, and they may infer either from the circumstances, as if an agent obtains money by pledging his principal's goods, and afterwards applies the money thus procured in paying a bill on which the pawnee and himself are jointly liable. The pledge will be invalid if the jury find that it was only a circuitous way of relieving the pawnee from liability (e). But an advance to a firm of agents already indebted to the pawnee, if made in good faith, leaving the agents at liberty to apply it as they please, will be supported against the principal, even if they afterwards use the money to pay a debt previously due to the pawnee by one member of the firm. Contra, if the advance is made as a means of satisfying such a debt (ƒ).

(a) 5 & 6 Vict., cap. 39, sec. 4. (b) 5 & 6 Vict., cap. 39, sec. 3.
(c) 40 & 41 Vict., cap. 39, secs. 2, 3, 4 and 5.

(d) Per Lord St. Leonard's, in Navulshaw v. Brownrigg, 21 L.J., 908, 911 Ch.; 2 D. M. & G., 441. (e) Learoyd v. Robinson, 12 M.&W., 745.

(f) Phillips v. Huth, 6 M. & W., 572.

There is yet another requirement to be fulfilled before the pawnee can claim the benefit of the Acts. His advances must have been made to "a person entrusted by the principal or other real owner, with the possession of the things pledged. A person in whose name goods are shipped is prima facie entrusted with them (a). An agent's possession of goods or documents is prima facie proof of his entrustment (b). And revocation of the entrustment or agency will not affect a bona fide pawnee who makes his advance on the faith of a previous knowledge of the agent's employment, and without notice of the revocation of his authority (c).

As an agent's possession is only prima facie proof of entrustment by his employer, it may be rebutted by direct evidence as to the nature of the employment, or the circumstances under which possession was obtained.

A clerk, acting under his master's immediate control, is not "a person entrusted" within the Factors' Acts (4 Geo. 4, cap. 83; 6 Geo. 4, cap. 94; 5 & 6 Vict., cap. 39), for the relation contemplated by them is that of principal and agent :-not of master and servant (d). Such a person may, however, be in possession of documents of title on behalf of a vendor of goods, or of documents of title on behalf of a vendee, in either of which cases he would appear to be now, "a person entrusted" within the Acts (e).

For other instances of persons who, by the nature of their employment, have been held not to be persons entrusted, see ante p. 58.

(a) 4 Geo. 4, cap. 83, sec. 1. (b) 5 & 6 Vict., cap. 39, sec. 4. (c) 40 & 41 Vict., cap. 39, sec. 2. This section is a legislative reversal of Fuentes v. Montis, L.R., 3 C.P., 268; 4 C.P., 93 (Ex. Ch.); 37 L.J., 137 C.P., 38 L.J., 95 C.P. (Ex. Ch.)., 18 L.T., N.S., 21; 19 L.T., N.S., 364; 16 W.R., 900; 17 W.R., 208.

(d) Lamb v. Attenborough, 1 B. & S. 831, 31 L.J., 41 Q.B.
(e) 40 & 41 Vict., cap. 39, secs. 3 & 4.

There must be an intention on the part of the real owner, to entrust the agent (a). When there has been that intention, the Act applies, whether the document pledged is derived immediately from the owner, or obtained by reason of the agent's having been entrusted with posssession of the goods or any other document of title thereto ().

The entrustment must be for the purpose of sale. Therefore a pledge by a warehouseman to whose hands documents of title have come for warehousing or similar purposes only, is not within the Act (c).

Whether the agent has been so entrusted is a question of fact for the Jury. Entrusting may be express, as by delivering a document to the agent, or desiring him to procure it. Or it may be implied from the course of dealing or other circumstances (d). But, in no case can a pawnor who has obtained possession of goods or documents by felony, or by a fraud independent of contract, be "a person entrusted" within the Acts. Therefore a pawnee from A. B., who had obtained possession of a delivery order from the plaintiff's brokers, by falsely and fraudulently stating that C. D. had bought the goods therein mentioned; that he was agent for A. B., and that he wanted the order for the purpose of inspecting the goods, acquired no right

(a) Per Parke, B., in Phillips v. Huth, 6 M. & W., 572, 599; Per Lord Abinger, C.B., and Lord Denman, C.J., in Hatfield v. Phillips, 9 M. & W., 647. (b) 5 & 6 Vict., cap. 39, sec. 4, reversing Phillips v. Huth, 6 M. & W., 572, where the agent, being entrusted with a Bill of Lading, made use of it to obtain dock warrants representing the goods included in the Bill of Lading, and afterwards pledged the warrants with the defendants, who were held not to be within the Act, as the agent had been entrusted with the Bill of Lading and not with the dock warrants he had thereby been enabled to obtain. Hatfield v. Phillips, 9 M. & W., 647, was to the same effect. (c) Monk v. Whittenbury, 2 B. & Ald., 484; Cole v. North-Western Bank, L. R., 9 C.P., 470, 10 C.P., 354 (Ex. Ch.). 43 L.J., 191. C.P.; 44 L.J., 233, C.P. (Ex. Ch.); 30 L.T., N.S., 641; 32 L T., N.S., 733; and other cases cited ante p. 58.

(d) P. Lord Denman, C.J., in Hatfield v. Phillips, 9 M. & W., 647, 650.

F

against the true owner (a). So also, when a clerk obtained possession of documents by conduct amounting to a false and fraudulent pretence, inducing the vendor to believe that he was a member of the firm by which he was employed (b); and in another case, when a discharged clerk had obtained goods in the name of his late employer, by falsely and fraudulently representing that he was still in his service (c). The Courts held the facts of these cases to show mere possession of the things pledged, without any entrustment. There was no sale to the fraudulent pawnors, who were neither purchasers from, nor agents of the persons from whom they obtained such possession. Neither were they factors or agents whose agency or entrustment had been revoked, nor vendees of the goods, or persons in possession on behalf of vendors, or vendees within the Act of 1877 (d). There was no sale to the persons they represented as purchasers, for they never authorised the transactions; and no sale to the fraudulent pawnors, for the vendors never meant to contract with them (e).

A pledge will, however, be good against the principal who has been induced to entrust his agent with goods or documents of title for the purpose of sale, by the agent's false and fraudulent representation that he has sold the goods (f) or as to his means of disposing of them, for there is then the actual entrustment which the Act requires (g).

(a) Kingsford v. Merry, 1 H. & N., 503, 26 L.J., 83 Ex., approved in Cole v. North-Western Bank, L.R., 9 C.P. 470, 10 C.P., 354, Ex. Ch.; 43 L.J., 194 C.P.; 44 L.J., 233 C.P. (Ex. Ch.); 30 L.T., N.S., 641; 32 Ib., 733. (b) Hardman v. Booth, 1 H. & C., 803, 32 L.J., 105 Ex. (c) Higgins v. Burton,26 L.J., 342 Ex. (d) 40 & 41 Vict., cap. 39. (e) Per Wilde, B., in Hardman v. Booth, supra, approved in Lindsay v. Cundy, L.R., 2 Q.B.D., 99 (C.A.), and (in H.L.) L.R., 3 A.C., 459; 46 L.J., Q.B., 233; 47 Ib., 481; 36 L.T., N.S., 345; 38 Ib., 573; 25 W.R., 417; 26 Ib., 406. (f) Vickers v. Hertz, L.R., 2 H.L. Sc., 113.

(g) P. Pollock, C.B., in Sheppard v. Union Bank of London, 7 H. & N., 761; 31 L.J., 154 Ex., 5 L.T., N.S., 757, approved in Cole v. North-Western Bank, cited supra; see also Baines v. Swainson, 32 L.J., 281, Q.B.