Sect. 25. Privileges of bills of lading. Bills of lading were privileged as documents of title at a much earlier period than any of the other documents. mentioned in the definition,1 probably because of the inconvenience of being unable otherwise to deal with goods Dock warrants, during a long period of transit and voyage.2 Dock warrants etc. Common-law effect of warrants and certificates still limited. and warehouse-keeper's certificates come next in the order of recognition, these being granted by or on behalf of the person having the custody of the goods. Finally, by the present definition the privilege is extended to delivery orders granted by the owner of the goods whether he is the custodier or not.3 But apart from the Factors Acts and the definition of "document of title" incorporated with this Act, it may be doubted if the indorsement of a dock warrant, or a warehouse-keeper's certificate, or a delivery order, has as yet received any effect beyond that of a token of an "authority to receive possession." 4 They are certainly not "negotiable instruments" in the sense which the common law attached to that phrase in connection with bills of exchange and promissory notes. Even bills of lading have taining of these actions upon such notes were innovations upon the rules of common law, and that it amounted to setting up a new sort of specialty unknown to the common law and invented in Lombard Street, which attempted in these matters of bills of exchange to give laws to Westminster Hall; that the continuing to declare upon these notes upon the custom of merchants proceeded from obstinacy and opinionativeness, since he had always expressed his opinion against them." Similar strong language was used by the Chief Justice in the subsequent case of Buller v. Crispe (1703), 6 Mod. Rep. 29, but the London merchants had the ear of the legislature, and, in this case, the Court was saved the trouble of coming to a final judgment by the Act of 1704 (3 & 4 Anne c. 9). 1 See Scottish cases in Appendix II. Iv. (1) post, p. 331. 2 Lickbarrow v. Mason (1793), 6 East 21; and see Coм., Sect. 19 ante, p. 101. The preamble of the Bills of Lading Act 1855 (18 & 19 Vict. c. 111) recites that "by the custom of merchants a bill of lading of goods being transferable by endorsement the property in the goods may thereby pass to the endorsee.' 3 The distinction between a warrant for goods (including a warehousekeeper's certificate) and a delivery order is illustrated by the provisions of the Stamp Act 1891 (54 & 55 Vict. c. 39). Compare Sect. 111 (warrant) with Sect. 69 (delivery order). The stamp upon the former is 3d., upon the latter 1d. "Endorsement does not render a delivery order liable to further duty, nor does a warrant for goods become chargeable a second time as a delivery order by reason of its being endorsed by the original owner of the goods to another person."-Griffith's Digest of Stamp Duties, 11th ed. p. 66. See Blackburn on Sale, pp. 415. 418-M'Ewen and Co. v. Smith (1849), 6 Bell's App. Ca. 340. not this effect, for the validity of a transfer depends on the Sect. 25. sufficiency of the granter's title to the goods in question, whereas bills and notes, being monetary instruments, import an unlimited personal obligation on the part of the granters and indorsers. In this view, the definition of "document of title" given by the Factors Act 1889 will not affect constructive delivery, or defeat the seller's remedies in a question with the buyer or his creditors. WRITS OF 26.-(1.) A writ of fieri facias or other writ of Sect. 26. execution against goods shall bind the property in the EFFECT OF goods of the execution debtor as from the time when EXECUTION. the writ is delivered to the sheriff to be executed; and, for the better manifestation of such time, it shall be the duty of the sheriff, without fee, upon the receipt of any such writ to endorse upon the back thereof the hour, day, month, and year when he received the same. Provided that no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration, unless such person had at the time when he acquired his title notice that such writ or any other writ by virtue of which the goods of the execution debtor might be seized or attached had been delivered to and remained unexecuted in the hands of the sheriff. (2.) In this section the term "sheriff" includes any officer charged with the enforcement of a writ of execution. (3.) The provisions of this section do not apply to Scotland. Sect. 26. Law of Ireland con- COMMENTARY, The main enactment is a reproduction of Sect. 15 (commonly called Sect. 16) of the Statute of Frauds.1 The proviso is a re-enactment of Sect. 1 of the English Mercantile Law Amendment Act of 1856.2 Both sections are repealed by this Act.3 The Mercantile Law Commission of 1855, after comparing the law of England and Ireland regarding execution and seizure of goods for debt with that of Scotland, recommended that the laws of the United Kingdom should be assimilated on the lines of the law of Scotland.4 This proposal, however, did not receive statutory sanction, and the only result was the provision here reproduced from the Mercantile Law Amendment Act of 1856. The Scottish rule was not touched by the corresponding Mercantile Law Amendment Act passed for Scotland.5 1 29 Car. II. c. 3. 3 Sect. 60 and Schedule. 2 19 & 20 Vict. c. 97. 4 The law of England and Ireland and that of Scotland are thus contrasted by the Commissioners. "In England and Ireland it is held that the execution creditor of the seller is preferable to the buyer, although the sale take place before the actual seizure of the goods under the writ if, before the sale, the writ has been placed in the hands of the sheriff. This is unfair to the buyer, as until the seizure take place there is nothing to warn him that the owner of the goods has been deprived of his right to sell them; and indeed the owner himself may often be in ignorance of this. In Scotland the warrant for execution has no such effect by being merely placed in the hands of the officer who is to execute it, or until he actually proceeds to carry the execution into effect; and if during the intermediate period there be a bond-fide sale of the goods, and the possession of them be obtained by the buyer, they cannot thereafter be attached by a creditor of the seller."Report, p. 8. 5 19 & 20 Vict. c. 60. PART III. PERFORMANCE OF THE CONTRACT. DUTIES OF 27. It is the duty of the seller to deliver (a) the Sect. 27. goods, and of the buyer to accept and pay for them, in accordance with the terms of the contract of sale.(e) BUYER. NOTES. (a) "Delivery' means the voluntary transfer of possession from one person to another" [Sect. 62 (1)]. The rules as to delivery are contained in Sect. 29.1 "Of every specific article bought, delivery may be legally enforced from the seller, and he cannot by disregarding his obligation to deliver at the particular time stipulated, retain the subject and convert the purchaser's claim into one for damages."2 In certain circumstances, however, the seller will be allowed a reasonable time within which to perform his obligation. If actual delivery is not contemplated, the contract may be one for differences only, and therefore a wager not enforceable at law.1 (b) "To accept and pay.” Acceptance is defined by Sect. 35. Such acceptance differs from that under Sect. 4 (formerly Statute of Frauds), as to which see note (b) ante, p. 25. As acceptance is the counterpart of delivery, it is equally 1 As to the form of delivery and equivalents for actual transfer, see Coм., Sect. 28 post, p. 132 et seq. 2 Per Lord Cowan in Sutherland v. Montrose Shipbuilding Co. (1860), 22 D. 665 at p. 671. See Graham and Co. v. Pollock and Caldwall (1763), Mor. 14198; Maclelland v. Adam and Mathie (1795), Mor. 14247; Bell's Prin., Sect. 113; Benjamin, pp. 676, 677. 3 Forbes v. Campbell (1885), 12 Ret. 1265. As to proof of delivery, see Dunbar v. Harvie (1820), H.L. 2 Bligh 351. Heiman v. Hardie and Co. (1885), 12 Ret. 406. Sect. 27. Sect. 28. PAYMENT AND DELIVERY ARE subject to any special conditions of the contract, such as notice to be given by the seller of the place where delivery is to be given, or notice by the buyer of the place where the goods are to be accepted.1 If, however, the contract fixes a place of delivery in the interest of the seller alone, the buyer may be bound to accept them at another place named by the seller.2 The time of payment may be fixed with reference to the arrival of the goods, and in such case, if the buyer's obligation to pay subsists notwithstanding the loss of the goods during transit, he must pay within a reasonable time after they should have arrived in ordinary course, or after arrival has been ascertained to be impossible. "The chief obligation of the buyer is to pay the price according to the terms express or implied. 3 The next obligation is to take delivery of the goods if they be in the condition stipulated or implied at the time when the seller is bound to deliver." 4 (c) The terms of the contract apply equally to delivery, acceptance, and payment. 28. Unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions, that is to say, the seller must be ready and willing to give possession of the goods to the buyer in exchange for the price, and the buyer must be ready and willing to pay the price in exchange for possession of the goods. NOTES. (a)" Unless otherwise agreed." E.g. the goods may be sold on credit, or the contract may provide a special time for delivery 1 Davies v. MacLean (1873), 21 W.R. 264. 2 Neill v. Whitworth (1865), L.R. 1 C. P. 684. 3 Fragano v. Long (1825), 4 B. & C. 219, per Bayley, J., at p. 222; Alexander v. Gardner (1835), 1 Bing. N.C. 671. Bell's Prin., Sects. 127, 128. See also Bell on Sale, pp. 79, 103; M. P. Brown, pp. 199, 343; Benjamin, p. 708; Drew v. Ogilvie, Heggie, and Co. (1833), 11 Sh. 342. A party was held not in mora in taking delivery of a ship under a charter-party, in Carswell v. Collard (1893), 20 Ret. H.L. 47. The same principle applies to sale. On the other hand, a buyer of oats who had delayed taking delivery for a fortnight, during which time grain had greatly increased in value, was held not entitled to demand delivery-Craig and Co. v. Hamilton (1823), 2 Sh. 347 (N.E.) 305. |