Sect. 41. Analogy of intimated moveables. ferred to the buyer (i.e. the first buyer), but was one created by him. ( (5) The aid of the Mercantile Law Amendment Act 1856 was not invoked because, under that Act, the sub-purchaser was required to pay the price as a condition of obtaining delivery, but the very existence of that condition justifies the inference that without payment of the price to the unpaid seller, a sub-purchaser was not, under the law of Scotland, entitled to delivery. The foregoing criticism of the judgment in Fleming v. Smith and Co. may be useful, not because of the intrinsic importance of the case, but because it illustrates a misconception of the seller's right as it existed in Scotland before this Act, and also a misapplication of English law. It only remains to notice the opinion of Lord Justice-Clerk Moncreiff, who, while not differing from the other judges, preferred to rest his opinion on the law of Scotland alone. He founded his judgment upon the effect of an intimated assignation of assignation of the property in goods, apparently on the analogy of an intimated assignation of incorporeal moveables, such as debts.2 But assuming the analogy to be perfect, the assignee in such a case could not take a higher right than that of the assignor,—assignatus utitur jure auctoris. As, therefore, the first purchaser was liable in the price, so also the sub-purchaser must have paid the price before he could take the goods out of the possession of the original seller. It is true, as Lord Justice-Clerk Moncreiff strongly urged, that at the date of the delivery order which was supposed to form the assignation, there was a contract to sell on credit, and that the credit had not expired, but is this any reason for separating the rights from the obligations of a mutual contract, and assigning the one without regard to the other? What was it that the first purchaser had it in his power to assign? A right to demand delivery, subject to an obligation to pay the price at a future date. The obligation to pay the price was not the less an essential term of the contract, that it was not immediately prestable. 1 19 & 20 Vict. c. 60. 2 The analogy is not new. It pervades much of the argument in Wyper v. Harveys (1861), 23 D. 606, and is to be met with in many other cases. It existed in full force at the date of the delivery order, and Sect. 41. was actually exigible before the assignee was in a position to demand implement of the right assigned. If the delivery order was good as an assignation, the assignee could have made the same demand as his author, but nothing more: if the term of credit had not expired, he was entitled to demand delivery, but when the credit expired he was bound to pay the price. It may further be pointed out that a delivery order is not a formal assignation, and can only be elevated into that position on the ground of mercantile usage, which clearly does not exist to the effect of cutting off the seller's claim for the price of goods still in his possession. PART DE LIVERY. 42. Where an unpaid seller) has made part Sect. 42. delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention. NOTES. (a) "Unpaid seller." Defined Sect. 38. See (b) "Delivery." Defined Sect. 62 (1). "Part delivery." Sect. 31. "It is said that by taking possession of the two puncheons, the buyer took possession of the whole; but it is clearly established that if part be delivered with an intent to separate that part from the rest, it is not an inchoate delivery of the whole so as to divest the right of property out of the vendor."1 "If both parties intend delivery of a part as a delivery of the whole, then it is a delivery of the whole, but if either of the parties does not intend it as a delivery of the whole, if either of them dissents, then it is not a delivery of the whole." 2 1 Per Parke, J., in Dixon v. Yates (1833), 5 B. & Ad. 313 at p. 341. See also Denman, C. J., to the same effect at p. 336. 2 Per Lord Blackburn in Kemp v. Falk (1882), 7 App. Cas. 573 at p. 586. See also Payne v. Shadbolt (1808), 1 Camp. 427; Bunney v. Poyntz (1833), 4 B. & Ad. 568; Miles v. Gorton (1834), 2 Cr. & M. 504, and cases under Sect. 45 (7) relating to stoppage in transitu, post, p. 222. As to instalment deliveries, see Sect. 31 ante, p. 147; Ex parte Chalmers (1873), L. R. 8 Ch. Sect. 42. (c) "Lien or retention.” "Lien in Scotland includes right of retention"-Sect. 62 (1). See COM., Sect 39 ante, p. 186. (d) "Agreement to waive." Such an agreement may be express, or may be inferred from a course of dealing, or from usage, Sect. 55. It may also be inferred from other circumstances, e.g. the delivery of an essential part of an article consisting of several parts or delivery given to a party in a special character, such as a trustee in bankruptcy.2 (b) Sect. 43. 43.-(1.) The unpaid seller) of goods loses his OF LIEN. (a.) When he delivers the goods to a carrier or other bailee or custodier for the purpose of transmission to the buyer without reserving the right of disposal of the goods ("); (b.) When the buyer or his agent lawfully (j) obtains possession of the goods"; (k) (c.) By waiver thereof.(m) (2.) The unpaid seller) of goods, having a lien or (c) right of retention thereon, does not lose his lien or right of retention by reason only that he has obtained judgment or decree (") for the price of the goods. (0) NOTES. (a)" Unpaid Seller." Defined Sect. 38. "Seller" defined Sect. 62 (1). (b) "Goods." Defined Sect 62 (1). 'Lien in Scotland includes See COM., Sect. 39 ante, App. 289; Merchant Banking Co. v. Phoenix Bessemer Steel Co. (1877), 5 Ch. 1 Per Cotton, L. J., in Ex parte Cooper (1879), 11 Ch. Div. at p. 75. (d)" Delivers." 'Delivery" defined Sect. 62 (1). For rules Sect. 43. as to delivery, see Sect. 29. (e) "Carrier." Delivery to a carrier is prima facie delivery to the buyer, Sect. 32. "Delivery of the goods to a common carrier for conveyance to the buyer, is such a delivery of actual possession to the buyer through his agent the carrier, as suffices to put an end to the vendor's lien." (f) "Bailee or Custodier." "Bailee,' in Scotland, includes custodier" [Sect. 62 (1)]. The word "custodier" is unnecessary here. (g)" Buyer." Defined Sect. 62 (1). (h) Reservation of right of disposal. See Sect. 19. (i) Buyer's agent includes a sub-buyer, and a trustee in bankruptcy. As to seller's agent, see COM., Sect. 44 post, p. 207. It (j) "Lawfully." This word was added in Committee. does not appear in the corresponding provision as to stoppage in transitu [Sect. 45 (2)], and perhaps the rule is different. See Whitehead v. Anderson (1842), but see as to Scotland, Schuurmans and Sons v. Goldie 5 (1828), and Coм., Sect. 45 post, p. 213. (k) "Possession." Defined in Factors Act 18896 Sect. 1 (2). (1) Possession by buyer. "The vendor's lien is abandoned when he makes delivery of the goods to the buyer. . . . As soon as a bargain and sale are completed the buyer becomes at once vested with the ownership and the right of possession, but actual possession does not pass by the mere contract. Something further is required, unless, indeed, the buyer had been previously in actual possession as bailee of the vendor, in which case, of course, the vendor's assent that the buyer shall henceforth possess in his own right as proprietor of the thing, would make a complete delivery for all purposes."7 The words "unless there be an agreement to the contrary" were inserted at this place in the original bill, but were struck out in Committee. (m) "By waiver." The right of lien may be waived either expressly or by implication. The seller may take a bill for the price, in which case (unless it is otherwise agreed) the lien is 1 Benjamin, p. 813. See Jones and Co. v. Ross (1830), 8 Sh. 495; Dutton v. Solomonson (1803), 3 B. & P. 582; Ex parte Pearson (1868), L. R. 3 Ch. App. 443; Bell on Sale, p. 86. Dixon v. Yates (1833), 5 B. & Ad. 313. 3 See COM., Sect. 45 post, p. 216. 4 9 M. & W. 518. 5 6 Sh. 1110. 6 52 & 53 Vict. c. 45. Text in Appendix I. post, p. 297. 7 Benjamin, p. 811. See Harman v. Anderson (1809), 2 Camp. 243; Hawes v. Watson (1824), 2 B. & C. 543; Dodsley v. Varley (1840), 12 A. & E. 632; Cooper v. Bill (1865), 34 L.J. Ex. 161, 3 H. & C. 722. Sect. 43. Sub-sect. (2). Effect of judgment or decree. waived during its currency, or he may consent, either expressly or by implication, to a sub-sale, in which case he is barred personali exceptione from enforcing his lien,1 or he may part with documents of title.2 (n) "Decree" was inserted in adapting the bill to Scotland. (0) Effect of judgment or decree. See COM. infra. COMMENTARY. Sub-sect. (2) negatives a proposition which might be put forward in England, but which would have been quite unintelligible under the former law of Scotland. In Scotland, no property in goods sold passed to the buyer without possession. The ownership of goods sold could not, therefore, have been changed by any merely personal decree against either seller or buyer. In England, on the other hand, a satisfied judgment often has the effect of passing the property. Thus where a party holds goods without title and is sued by the owner for their value, the judgment when satisfied will pass the property in these goods to the party against whom the action is directed. The practical result would no doubt have been the same in Scotland, but in theory, the new right of ownership would have proceeded upon the changed character of the possession, not upon the direct effect of the decree. But, even in England, "an unsatisfied judgment in trover does not pass the property, and is a mere assessment of damages, on payment of which the property vests in the defendant." 3 In like manner a judgment in England, when satisfied, will loose the vendor's lien upon the buyer's property still in the hands of the seller, and the object, therefore, of this sub-section is to make it clear that the mere obtaining of the judgment will not have this effect. Nor will partial satisfaction have any effect in removing the lien. Thus, where the judgment debt 1 See Knights v. Wiffen (1870), L. R. 5 Q.B. 660; Blackburn on Sale, pp. 190 et seq. A recent Scottish case was decided in the Outer House on the ground of waiver by the sellers of their right of retention-Robertson and Baxter v. M'Pherson Bros. (20th July 1893), 1 Scots Law Times 159. 3 Benjamin, p. 59. 2 See Sect. 47. |