name.

Then Roebuck sold the goods to Zwinger. Roebuck applied to Samuda for the dock warrants, and he refused to give them until he was paid off his advances. Roebuck by a false pretence, (to which Zwinger was no party), got him to take a worthless cheque in payment of his advances, and to indorse the dock warrant to Zwinger, who thereupon paid Roebuck the price of the goods. As soon as Samuda discovered the trick, he countermanded the delivery order, and seized the goods. Zwinger brought trover and recovered. Sir James Allan Park, at Nisi Prius, seems to have likened the indorsement of dock warrants to that of bills of exchange, and on a motion for a new trial, he seems to have thought they were like bills of lading at least; but Burrough, J. said;-"I hope "it will be understood that the Court does not pro"ceed upon any thing like a custom in this case. "The defendant has been paid for the goods, for Roe"buck and the defendant are one. Who is

66 it who credits Roebuck but the defendant. We "therefore have the contract of sale and the payment "complete, which transfer the property, and though "there also exists in the case this document, what "difference does it make? it does not invalidate the "sale."

In Lucas v. Dorrien (a), in 1817, the owner of sugar pledged the dock warrants with the defendants. Some time after the pledge the defendants lodged the dock warrants which had been indorsed to them, and the

(a) Lucas v. Dorrien, 7 Taunt. 278.

company assented to the transfer. The next day the pledger became bankrupt. His assignees brought trover. No question could arise upon the negotiability of the dock warrants, as the delivery was executed before the bankruptcy; but though the point did not arise, both Dallas, J. and Park, J. intimated an opinion that the dock warrants were negotiable by some custom of trade.

In Keyser v. Suse (a), in 1818, the question arose. The unpaid vendor gave the purchaser the dock warrants, and he transferred them by way of pledge, to Keyser the plaintiff. Before Keyser notified this transfer to the dock company, the purchaser failed, and the original vendor gave notice of countermand to the dock company. Keyser brought trover. Dallas, J. at Nisi Prius, intimated a strong opinion that the transfer of the dock warrant for value put an end to the vendor's right to stop in transitu, and directed a verdict subject to leave to enter a nonsuit. The parties however compromised the case.

These are all the authorities that can be found upon the subject, and it is to be observed that they amount to no more than expressions of opinion at Nisi Prius, by two learned Judges, Park, J. and Dallas, J., which are too little to establish a custom the effect of which is not to put a construction upon the intention of the parties, or the meaning of the documents of title, but to give an effect to them different from that which at common law they would have.

(a) Keyser v. Suse, Gow. 58.

There does not seem to be any ground for maintaining that the vendor, who has given a delivery order to a purchaser from him, is thereby precluded from setting up his rights as against third parties, who may have made advances on the faith of the delivery order. He cannot set up any case inconsistent with the document which he has given to his purchaser, and on which he has allowed him to get credit. He cannot therefore deny, that the person to whom he has handed the delivery order had a right to obtain possession. But this is so far from being inconsistent with the case of one who is stopping in transitu, that it is a necessary and essential ingredient in it. He can exercise no right to stop the goods in transitu, unless the purchaser had a vested right both of property and possession, defeasible on his insolvency, and it is impossible to say that the possession of a delivery order imports any thing more than this.

It is therefore submitted, that the indorsement of a delivery order, or dock warrant, has not (independently of the factors' acts) any effect beyond that of a token of an authority to receive possession.

It only remains to observe, that the factors' acts seem not to be applicable to the case of a purchaser, who as such, is possessed of delivery orders or other documents of title to the goods which he has bought, and consequently that the unpaid vendor's rights of stoppage in transitu, and his analogous rights of countermanding the authority to deliver, remain such as they were before the passing of these acts.

Those statutes, 4 Geo. 4, c. 83; 6 Geo. 4, c. 94, and 5 & 6 Vict. c. 39, have already given rise to some litigation, but this particular point has not yet risen. It depends upon the construction which may be put upon the second section of the 6 Geo. 4, c. 94, by which it is enacted," that any person entrusted with, and in possession of any document of title to goods, shall be taken to be the true owner of the goods, so far as to give validity to any contract made by him for the sale or pledge of the goods to a person who has not notice that he is not the actual and bona fide owner."

In the first edition of Smith's Mercantile Law, p. 334, it is suggested that "It seems to follow, that the nego tiation of any of the instruments named in the act, will (subject to the other provisions thereof) defeat the vendor's rights to stop in transitu." As far as regards bills of lading, the statute, if it bore this construction, would be nearly inoperative, as the negotiation of the bill of lading would, independently of the statute, have defeated the vendor's rights; but if the statute gives the same effect to the negotiation of other documents of title, it produces an important change in the law. Even in the case of a bill of lading, it might change the effect of an indorsement after the goods were stopped.

It is quite impossible to speak with any certainty as to what an act of Parliament means, until it has become the subject of judicial investigation, and in the present case, the words used by the Legislature are

wide enough to make the suggestion plausible, but it does not seem to be the true meaning of the act.

The meaning of the section was much considered in two important causes, arising out of the following transaction. Philips was the owner of two cargoes of tobacco, and he placed the bills of lading in the hands of Warwick, as his factor, for sale. The bills of lading were indorsed to Warwick. The goods arrived, and were deposited in the dock warehouses in the name of Warwick, the indorsee of the bill of lading. Warwick in consequence of being the indorsee of the bill of lading, and the person in whose name the goods were deposited, was enabled to have dock warrants made out in his own name. He did do so, not for the purpose of selling the goods for the owner, but with the fraudulent purpose of raising money for himself. pledged some of the dock warrants with Huth, and others with Hatfield, for large sums of money. Hatfield and Huth, respectively, bona fide believed that Warwick was the owner of the goods. The two actions were to try whether the pledges were valid or not as against Philips.

He

Philips v. Huth (a), was first tried in 1839, before Gurney, B., and the jury found a verdict for the defendant. The Court of Exchequer granted a new trial, on the ground that the pledge was not binding on the owner of the goods at common law, and that Warwick was not intrusted with the dock warrants within the meaning of the act. Parkc, B. in delivering the

(a) Philips v. Huth, 6 M. & W. 572.