have notice, by such documents or otherwise, that such person so intrusted is not the actual and bond fide owner of such goods, &c., so sold or pledged as aforesaid (n).

It has been held under this section, that a party receiving East India warrants from a factor, in pledge for money advanced to him, could not retain them against the true owner, if from the circumstances he must, as a reasonable man, have known that they did not belong to the factor, although no direct communication of that fact was made to him (0).

And where a factor, the consignee of goods for sale, and indorsee of the bills of lading, had landed and warehoused the goods, and taken the wharfinger's certificates and dock warrants in his own name, and then pledged the certificates and warrants for an advance of money on his own account; it was held, in an action of trover by the real owner of the goods, that such pledge was not protected by the above section (p).

In order to make the factor a party intrusted with a dock warrant within the meaning of the above section, it must appear that the owner of the goods intended that the factor should be possessed of it at the time of the pledge, or that he should exercise the power which the possession of the bill of lading gave him, of obtaining the dock warrant whenever he, in his discretion, might think fit (q).

And where a foreign owner of goods consigned them

(n) 6 Geo. 4, c. 94, s. 2.

(0) Evans v. Trueman, 1 M. & R. 10 (per Lord Tenterden). But see, now, 5 & 6 Vic. c. 39, s. 1 & 3; infra, p. 55.

(p) Close and another v. Holmes, 2 Moo. & Rob. 22.

(q) Phillips and others v. Huth and others, 6 M. & W. 572.

to a factor in London, to whom he indorsed the bill of lading in blank, and transmitted it with instructions to receive and sell the goods: the factor received the goods, paid the freight and charges thereon, and entered them in his own name at the Custom House; by reason of which, and without the privity or express assent of the owner, he obtained a dock warrant, which he pledged for advances beyond the amount for which, as a factor, he had a lien on the goods; and it was held, that, under these circumstances, he was not entrusted with the dock warrant within the meaning of the above section (7).

But a factor in possession of goods is now to be considered as intrusted with them by the owner, within the meaning of the statute, unless the contrary be shown to the satisfaction of a jury (s).

A deposit or pledge, to be within the meaning of the above section, must be for money advanced, or a negotiable instrument given, upon the faith of the pledge; and warrants of the East India Company are not such negotiable instruments (t).

And where a factor, after depositing dock warrants with the defendant, as a security for the advance of money, withdrew them from his hands and substituted other dock warrants for silk belonging to the plaintiffs, the defendant having no notice that the factor was not the true owner; it was held, that the transaction was not protected by the above statute, there being no ad

(2) Hatfield v. Phillips, 12 Cl. & Fin. 343, 14 M. & W. 665; and see Jenkins v. Usborne, 7 M. & Gr. 678, 8 Sc. N. R. 505.

(s) Baines v. Swainson, 4 B. & S. 270, per Blackburn, J.; and see 5 & 6 Vic. c. 39, latter part of s. 4.

(t) Taylor v. Kymer, 3 B. & Adol. 320.

vance of money on the faith of such warrants; and that the plaintiffs might recover the value of their silk in trover (u).

No person to acquire a security upon goods in agent's hands for an antecedent debt beyond amount of agent's interest in the goods.

Under section 3, in case any person should accept and take any such goods, &c., in deposit or pledge from any such person so in possession and intrusted as aforesaid, without notice as aforesaid, as a security for any debt or demand due and owing from such person so intrusted, &c., to such other person, before the time of such deposit or pledge, then and in that case such person so accepting or taking such goods, &c., is to acquire no further or other right, title or interest in the said goods, &c., than was possessed, or could have been enforced, by the said person so possessed and intrusted as aforesaid at the time of such deposit or pledge (x).

It has been held under this section that if East India warrants be pledged by a factor as a security for a previously existing debt, the pledgee can have no greater right in respect of them than the factor had at. the time of making the deposit (y).

Indemnity to persons contracting for purchase of goods with agent intrusted therewith.

Under section 4, any person may contract with an

(u) Bonzi v. Stewart, 4 M. & Gr. 295, 6 Sc. N. R. 1; see 5 & 6 Vict. c. 39, s. 2, infra, p. 61.

(x) 6 Geo. 4, c. 94, s. 3; and see 5 & 6 Vic. c. 39, s. 3, p. 63.

(y) Taylor v. Kymer, 3 B. & Adol. 320.

D

agent intrusted with any goods, or to whom the same may be consigned, for the purchase of any such goods; and to receive the same of, and pay for the same to, such agent; and such contract and payment is to be binding upon and good against the owner of such goods, notwithstanding such person have notice that the person making such contract, or on whose behalf the same is made, is an agent; provided such contract or payment be made in the usual and ordinary course of business, and that such person do not, when such contract is entered into, or payment made, have notice that such agent is not authorised to sell the same or to receive the said purchase money (2).

A wharfinger who receives goods in that capacity, and without any authority to sell, is not an agent intrusted with goods, within the meaning of this section (a).

The possession of goods by a factor or agent for sale is primâ facie evidence of being intrusted, so as to protect a bona fide purchaser of such goods. And so where the plaintiffs, who were cloth manufacturers, were informed by E., a factor and commission agent, that he could get them a customer for some of their goods, giving the name of Sykes as that of the intended purchaser. It is a common practice for manufacturers to send their goods to agents, who warehouse them, and sell them in their own names. The plaintiffs, believing the representations of E., sent parcels of goods from time to time to his warehouse, where he was to see

(z) 6 Geo. 4, c. 94, s. 4.

(a) Monk v. Whittenbury, 2 B. & Adol. 484, 1 M. & Rob. 81.

them "perched," and was then to transmit them to Sykes. The statements made by E. with reference to Sykes were untrue, and he sold the goods to the defendants, who purchased them bona fide. It was held, that E. was an agent intrusted with the goods within the meaning of this section, and that therefore the purchase by the defendants was protected (b).

What interest persons taking goods in pledge from factors or agents may acquire.

By section 5 of the same statute, any person may accept and take any such goods, &c., or any such document as aforesaid, in deposit or pledge from any such factor or agent, notwithstanding such person have such notice as aforesaid, that the person making such deposit or pledge is a factor or agent; but in that case such person will acquire no further or other right, title, or interest in or to the said goods, &c., or document as aforesaid, for the delivery thereof, than was possessed or could have been enforced by the said factor or agent at the time of such deposit or pledge; but such person may acquire and enforce such right, title, or interest as was possessed and might have been enforced by such factor or agent at the time of such deposit or pledge as aforesaid (c).

A fraudulent sale cannot be upheld as a pledge under this section (d).

(b) Baines and another v. Swainson and another, 32 L. J. Q. B. 281, 4 B. & S. 270.

(c) 6 Geo. 4, c. 94, s. 5.

(d) Thompson and another v. Farmer, 1 M. & M. 48.