himself. As to the first, the person who has promised to give a security cannot withdraw from his engagement, but he may instead give a pledge equivalent to the guarantee promised. The contract of guarantee depends entirely on the agreement of the contracting parties. The contract must be express, though it is not necessary that it should be in writing; it may be proved by witnesses in matters of trade, provided there is no special law rendering it necessary to be in writing. In either case, the intention of the party to be a surety must be clearly expressed. If the surety has not limited his engagement to a specific sum, he must settle the whole sum when it becomes due. The surety has a right to demand that the creditor shall first proceed against the debtor, because he bound himself only in the event that the debtor should not pay. The surety is discharged in case of fraud or misrepresentation, and he has a right to be reimbursed of what he has paid in consequence of his guarantee (a).

(a) Pardessus, Droit Commercial, vol. ii. p. 90.

CHAPTER XVI.

ON NEGOTIABLE INSTRUMENTS.

SECTION I.

DOCK WARRANTS.

BRITISH LAW.

A DOCK WARRANT is an engagement by the wharfinger to Definition. deliver the goods therein specified to the consignee, or any one he may appoint; and when a delivery order is granted for them, it operates as an authority to the person in whose possession the goods are, to deliver such goods. But unless the sale be intimated to the actual custodier of them, and the wharfinger has agreed to hold them for the assignee, no change in the ownership will have taken place (a). And at any time before such order has been presented and accepted by the assignee, it may be countermanded by the seller, and the lawful acceptance of it prevented.

the property

As soon as the delivery order has been presented and When will accepted, the goods cease to be in the order of the vendor, and pass. the wharfinger becomes the agent or trustee of the purchaser (b). Though even then the delivery order may be countermanded in case of the insolvency of the purchaser, by the exercise of the right of stoppage in transitu, so long as actual possession has not been given of the goods, and provided the rights of solvent sub-purchasers have not intervened (c).

A dock warrant is not a conclusive title to the property of the goods; therefore, when it is fraudulently obtained, and the relation of vendor and vendee has never subsisted, the property in the goods would not pass by it. The mere possession of the

(a) Farina v. Holme, 16 M. & W. 119.

(b) Harman v. Anderson, Camp. 242; Dickinson v. Marrow, 14 M. &

VOL I.

W. 713.

(c) Hanson v. Meyer, 6 East, 265; Hammond v. Anderson, 4 A. & P. 69; Swanwick v. Sothern, 9 Ad. & E. 895.

LL

Dock warrant clusive title to property.

not a con

goods, with no further indicia of title than a delivery order, is not sufficient to entitle the bona fide pawnee of the person fraudulently obtaining possession from the true owner to resist the claim of the latter in an action of trover (a).

SECTION II.

PUBLIC STOCK.

Every person inscribed on the books of the Bank of England or of the Bank of Ireland as proprietor of a share in the public stock (except the trustee of any share) may obtain a certificate of title to the said share, having annexed coupons entitling the bearer to the dividends. No certificate, however, is granted in respect of any sum of stock not being £50 or a multiple of £50, or in respect of any larger amount than £1000. The stock certificate will be issued only in respect of the £3 per cent. Consolidated Annuities, reduced £3 per cent. Annuities, and the new £3 per cent. Annuities. And the coupon will comprise the dividends for a period of not less than five years commencing from the date of the certificate. A stock certificate, unless a name is inscribed therein, will entitle the bearer to the stock therein described, and will be transferable by delivery. But the bearer of a stock certificate may convert the same into a nominal certificate by inserting therein in the manner prescribed the name, address, and quality of some person; and when so rendered nominal the stock shall cease to be transferable; and the person named therein, or some person deriving title from him by devolution in law, shall alone be recognised by the bank as entitled to the stock described in the certificate. The nominee in a nominal stock certificate is not entitled to have the same renewed as nominal; but he shall, on delivery up to the bank of his certificate, and of all unpaid coupons belonging thereto, be entitled to receive in exchange from the bank a stock certificate to bearer. The nominee in a nominal stock certificate and the bearer of a stock certificate to bearer may, on the like delivery, require to be registered in the books of the bank as a holder of the stock described; and thereupon the stock shall be re-entered in the books kept by the bank for the entry of transferable stock, and become transferable, and the

(a) Kingsford v. Merry, 1 H. & N. 503; 26 L. J. Ex. 83.

dividends payable as if no certificate had been issued in respect of such stock. No fees are to be charged on the grant of a stock certificate to bearer in exchange for a like certificate, but in respect of all other proceedings. The income tax is to be deducted from any coupons in the same manner as from dividends. All sums due and not demanded on any coupons to be treated as unclaimed dividends. When any certificate of title issued in respect of any share in the public stock is outstanding, the stock represented ceases to be transferable in the books of the bank. Penalties are also imposed on persons committing forgery, falsely personating owners of stock, and engraving plates, &c. (a).

(a) 26 Vict. c. 28.

END OF VOL. I.

Ex. J. M.

BRADBURY AND EVANS, PRINTERS, WHITEFRIARS.