Sect. 46. In England, the seller has a remedy by injunction,1 and, on the same principle, an interdict is competent in Scotland.2 (e)" Bailee' in Scotland includes custodier" [Sect. 62 (1)]. See Sect. 45, note (d), ante, p. 210. (f) Carrier in possession. Possession by a carrier is sometimes called "constructive delivery" to the buyer.3 Delivery to the carrier is primâ facie delivery to the buyer [Sect. 32 (1)]. (g) Notice to principal not having actual custody. "To make a notice effective as a stoppage in transitu, it must be given to the person who has the immediate custody of the goods, or, if given to the principal whose servant has the custody, it must be given at such a time and under such circumstances, that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consignee. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery." 4 (h) Re-delivery to the seller. In the case of The Tigress 5 (1863) it was determined by Dr. Lushington that the seller has a right to demand re-delivery to himself, and that the carrier has no right to say that he will retain the goods for delivery to the true owner after the conflicting claims have been settled. It is not a matter ordinarily within the seller's cognisance whether or not the buyer has indorsed the bill of lading. The seller "exercises his right of stoppage at his own peril, and it is incumbent on the master to give effect to a claim as soon as he is satisfied it is made by the vendor, unless he is aware of a legal defeasance of the vendor's claim." 6 If the carrier is in real doubt he will in 1 Schotsman v. L. and Y. Ry. Co. (1867), 2 Ch. 332 at p. 340. 2 Stoppel and Co. v. Stoddart and Co. (1850), 13 D 61. In Morton and Co. v. Abercromby (1858), 20 D. 362, the sellers applied for interdict to prevent the ship sailing with their goods on board. The service on the shipowner would, no doubt, have been a good stoppage had the right existed. In Booker and Co. v. Milne (1870), 9 Macp. 314, goods rejected by an insolvent buyer, and lying on the quay where they had been landed, were stopped by the seller by means of an application for interdict and warrant to take possession. 3 "The delivery by the vendor of goods sold to a carrier of any description, either expressly or by implication named by the vendee, and who is to carry on his account, is a constructive delivery to the vendee."-Per Parke, B., in James v. Griffin (1836), 2 M. & W. 623 at p. 632. Per Parke, B., in Whitehead v. Anderson (1842), 9 M. & W. 518 at pp. 533, 534. In Ex parte Falk (1880), 14 Ch. Div. 446, doubt was expressed by Bramwell, L. J., as to the obligation of a principal to send notice of stoppage to his agent [14 Ch. Div. at p. 455], and, in the same case, James, L. J., said regarding Whitehead v. Anderson, that it was not a judicial decision that any such duty is imposed on the shipowner [14 Ch. Div. at p. 450]. But, on the case going to the House of Lords, Lord Blackburn expressed a strong opinion in favour of the law as now laid down in this section-Kemp v. Falk (1882), 7 App. Cas. 573 at p. 585. 6 32 L.J. Adm. at p. 101. 5 32 L.J. Adm. 97. England, resort to an interpleader,1 and in Scotland, to the Sect. 46. analogous remedy of a multiplepoinding.2 (i) Expenses of re-delivery. This provision was added in Committee. The carrier will probably have a lien for these expenses, as well as for his charges under the original contract of carriage. The question, however, is not free from difficulty. Re-sale by Buyer or Seller. (c) EFFECT OF PLEDGE BY 47. Subject to the provisions of this Act," the Sect. 47. unpaid seller's right of lien or retention or stop- SUB-SALE OR page in transitu is not affected by any sale, or other disposition of the goods which the buyer may have made, unless the seller has assented thereto. Provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transowner") fers the document to a person who takes the document in good faith and for valuable consideration, then, if such last-mentioned transfer was by way of sale the unpaid seller's right of lien or retention or stoppage in transitu is defeated, and if such last-mentioned transfer was by way of pledge or other disposition for value, the unpaid seller's right of lien or retention or stoppage in transitu can only be exercised subject to the rights of the transferee." NOTES. "Provisions of this Act." E.g. Sect. 25 (2). (b) "Unpaid seller." Defined Sect. 38. (c) "Lien or retention." "Lien' in Scotland includes right "The master may sometimes suffer for an innocent mistake, but he can always protect himself from liability by filing a bill of interpleader in Chancery."-Per Dr. Lushington in The Tigress, 32 L.J. Adm. at p. 102. 66 2 In Scotland "plaintiff" includes claimant in a multiplepoinding," and "action" includes "condescendence and claim" [Sect. 62 (i)].* BUYER. Sect. 47. of retention [Sect. 62 (1)]. If retention has not the same meaning as lien, an important change in the law of Scotland is involved. See COM., Sect. 39 ante, p. 186. (d) "Sale or other disposition" by buyer. The buyer cannot enter into a sub-sale so as to give the sub-buyer a title free from the unpaid seller's remedies, unless by means of a document of title in terms of the proviso attached to the section.1 As to pledge or other disposition for value, see notes (k) and (1) infra. (e)" Unless the seller has assented thereto." The consent of the seller amounts to a waiver of his remedies. See Fleming v. Smith and Co.2 (1881), and COM., Sect. 41 ante, p. 195.3 (ƒ) "Document of title' has the same meaning as it has in the Factors Acts "4 [Sect. 62 (1)]. See COM., Sect. 25 ante, p. 125. A collection of Scottish cases is contained in Appendix II. IV. post, p. 331. (g) "Lawfully transferred." A "document of title" as defined by reference [see note (ƒ) supra] differs from a bill or note in respect that the title of the holder depends on the title of the assignor, and is not inherent in the instrument itself. The holder of a stolen "document of title" cannot give a good title to an assignee, even if the latter acts bona fide and has given valuable consideration. Perhaps the word "lawfully" has reference to this fact. See COM., Sect. 25 ante, p. 126. (h) "Buyer or owner." The right thus liable to be defeated is one in favour of an "unpaid seller" (Sect. 38) and operates against a buyer. The word " owner may refer to one in the position of a buyer, such as an agent buying on his own credit. See Sect. 38 (2). (i) "In good faith." Defined Sect. 62 (2). If the buyer knows the transferror to be insolvent, the transfer will be ineffectual, but mere knowledge that the price is unpaid is not inconsistent with "good faith," because credit is a usual incident in mercantile dealings. (j) "Valuable consideration." In Scotland, the transfer may be reduced as a fraudulent preference, if granted to a creditor in satisfaction of a prior debt.5 Such a transfer would apparently be effectual in England." 1 M'Ewen and Co. v. Smiths (1847), 9 D. 434; Affd. H. of L. (1849), 6 Bell's App. 340. 28 Ret. 548. 3 See also the English cases Stoveld v. Hughes (1811), 14 East 308 (express assent of seller); and Pearson v. Dawson (1858), E. B. & E. 448 (implied assent). 452 & 53 Vict. c. 45, and 53 & 54 Vict. c. 40. 5 Stoppel v. Stoddart (1850), 13 D. 61; Adamson, Howie, and Co. v. Guild (1868), 6 Macp. 347. Leask v. Scott (1877), 2 Q.B.D. 376. An opposite decision was given in Rodger v. Comptoir d'Escompte (1868), L. R. 2 P.C. 393, before the (k) "Pledge or other disposition for value." The general pro- Sect. 47. visions of the Act do not apply to " a transaction in the form of a contract of sale which is intended to operate by way of mortgage, pledge, charge, or other security" [Sect. 61 (4).] (1) "Rights of the transferee." "The vendor's right of stoppage will remain, so far as to entitle him to any surplus proceeds after satisfying the creditors to whom the bill of lading was transferred as security, and the vendor will have the further equitable right of insisting on marshalling the assets; that is to say, of forcing the creditor to exhaust any other securities held by him, towards satisfying his claim, before proceeding on the goods of the unpaid vendor." In Scotland, the transferee of a bill of lading who has other securities, is a catholic creditor, and cannot capriciously injure the secondary creditor (the seller) by claiming his whole debt out of the goods, leaving the other securities free, or only liable for the balance.2 In Kemp v. Falk 3 (1882) the House of Lords had under consideration whether, in the case of a sub-sale, stoppage in transitu could be made available against the purchase money payable to the intermediate seller. The case Ex parte Golding, Davis, and Co. (1880) seemed to favour this view, but it was unnecessary in Kemp v. Falk to decide the point. Lords Blackburn and Watson refrained from offering any opinion, but Lord Selborne said: "I assent entirely to the proposition that where the sub-purchasers get a good title as against the right of stoppage in transitu, there can be no stoppage as against the purchase money payable by them." In Ex parte Golding and Co.'s Case the bill of lading had not been effectually transferred, and therefore the decision, apart from the dicta, does not conflict with Lord Selborne's opinion. The provision of this section that the seller's right is "defeated" seems to follow on the lines of Lord Selborne's judgment. 48.-(1.) Subject to the provisions of this section, a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of lien or retention or stoppage in transitu. Judicial Committee of the Privy Council, but decisions before that Committee, though entitled to great weight, are not binding on the English Courts. 1 Benjamin, p. 892. Re Westzinthus (1833), 5 B. & Ad. 817; Spalding v. Ruding (1843), 6 Beav. 376. The principle was approved and adopted in Kemp v. Falk (1882), 7 App. Cas. 573. 2 See Bell's Com. ii. 418. 413 Ch. D. 628. 3 7 App. Cas. 573. Sect. 48. (2.) Where an unpaid seller who has exercised his right of lien or retention or stoppage in transitu re-sells the goods, the buyer acquires a good title thereto as against the original buyer.() (e) (3.) Where the goods are of a perishable nature," or where the unpaid seller" gives notice to the buyer of his intention to re-sell, and the buyer does not within a reasonable time pay or tender (9) price, the unpaid seller may re-sell the goods and recover from the original buyer damages for any loss occasioned by his breach of contract." the (4.) Where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default, re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages.() NOTES. (a) Sale not rescinded. See COM., infra, p. 231. (c) "Lien or retention or stoppage in transitu." See Sects. 39 and 41 to 46. As to "retention." see COM., Sect. 39 ante, p. 186. (d) The second buyer from an unpaid seller acquires a good title. The same result may be reached under Sect. 25 (1), but, under that section, the second buyer must act in good faith and without notice, and must have received delivery of the goods. No such conditions are here prescribed, but on the other hand, the operation of the present section seems confined to cases where the original buyer is in default, while Sect. 25 is general in its application. A seller who re-sells after unwarrantably stopping the goods in transitu or otherwise acting in breach of the contract, cannot confer a good title upon a second buyer under the present section,1 but he may do so under Sect. 25, subject to 1 See, e.g., Cohen v. Foster (1892), 61 L.J. Q.B. 643. |