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AT COMMON LAW-In England prior to 4 Geor. IV Chap. 83; 6 id., Chap. 94, and 5 and 6 Vic., Chap. 39; and in New York by statute-a factor for sale had no power to pledge; not even to the extent of his lien, nor when the object of the pledge was to secure money raised for the use of the principal.

THE ENGLISH STATUTE of 6 Geor. IV, Chap. 94 (known as the "Factors' Act"), provided that, "any person intrusted with, and in possession of, any bill of lading, dock warrant, order for delivery of goods, etc., shall be deemed the true owner of the goods described therein so far as to give validity to any contract, etc., made by such person for the sale or disposition of such goods, or any part thereof, or for the deposit or pledge thereof, or, etc., as security for any money or negotiable instrument advanced or given on the faith of such instrument." Under this statute it was decided by the English House of Lords (in Hatfield vs. Phillips, 14 M. & W., p. 665; 12 Cl. & Fin., p. 343; 10 Jur., p. 180; affirming S. C., 9 M. & W., p. 647), that to render valid a disposal of goods by a person as intrusted with one of the instruments named in the statute, he must be actually intrusted with the particular instrument on the faith of which the consideration passes, by the owner of the goods; or must hold it under such circumstances that an actual intrusting may be inferred.

WHERE A FACTOR was intrusted with the bill of lading by the owner, and entered the goods in his own name at the Custom House, and thus obtained a dock warrant, and pledged the dock warrant, it was held that the pledgee was not entitled to hold the goods. The fact that the factor was enabled to obtain the dock warrant by means of having been intrusted with the bill of lading was not enough. He must have been intrusted with the warrant by the owner. The rule in this respect has since been enlarged by statute 5 and 6 Vict., Chap. 39, which enacts that any agent intrusted with the possession of goods, or of the documents of title to goods, shall be deemed owner so far as to give validity to any contract by way of pledge, lien, etc., for any original or continuing advance, notwithstanding that the party making the advance may have had notice that the party receiving it was only an agent; and that any bill of lading, etc., or other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing the possessor of such document to transfer or receive goods

thereby represented, shall be deemed a

title" within the Act.

"document of

STATUTES OF NEW YORK.-By the Factors' Act (Laws of 1830, Chap. 179, Sec. 3), it is provided that every factor or other agent intrusted with a bill of lading, Custom House permit, or Warehouse Keeper's receipt; and every such factor or agent not having the documentary evidence of title, who shall be entitled to the possession of merchandise for the purpose of sale, or as security for advances, is to be deemed the true owner, so far as to give validity to his contract for the sale or disposal of such merchandise, for any money advanced or negotiable instrument, or other obligation in writing, given upon the faith thereof. But a person who takes merchandise from a factor to secure an antecedent debt, acquires no better right than the factor had at the time. The principle of this Act is somewhat extended by laws of N. Y., 1858, Chap. 326, Sec. 6, which enacts that warehouse receipts given for any goods, wares, merchandise, grain, flour, produce, or other commodity, stored or deposited with any warehouseman, wharfinger, or other person, may be transferred by indorsement thereof; and any person to whom the same may be so transferred, shall be deemed and taken to be the owner of the goods, wares, and merchandise therein specified, so far as to give validity to any pledge, lien, or transfer made or created by such person or persons. This section was somewhat obscurely amended by Laws of N. Y., 1859, Chap. 353. Under the N. Y. Act of 1830, it has been held that where a pledge, etc., by a factor, is sought to be sustained on the ground that he was intrusted with the documentary evidence of title mentioned, it must

appear:

1. That the pledgee had no notice, from the language of the document relied on, or otherwise, that the factor was not the true owner.

2. That the document was transferred and delivered to such pledgee simultaneously with his advance, in such manner as to vest in him either the title or the exclusive right and means of obtaining possession.

3. That the document relied on is one of the three enumerated in the statute. A permit for landing goods on which duties have not been paid, to the end that they may be stored in bond, as authorized by Acts of Congress, August 6th, 1846, and March 28th, 1854 (9 U. S. Stat. at L., p. 53; 10 id., p. 270), is not such a "Custom House permit;" nor is the receipt of the keeper of a bonded warehouse on receiving goods for

storage, given under the Acts of Congress, such a "warehouse keeper's receipt" as is embraced within the Act.

4. That the document was "intrusted" to the factor by the owner of the goods; i. e., it must have been delivered or transmitted to the factor by the owner, or have been received by the factor in the proper and ordinary mode of discharging his trust. Unless these elements exist, the validity of the pledge must be determined by the common law.

ON THE OTHER HAND, where a pledge by a factor is sought to be sustained upon the ground that he was intrusted with the possession of the goods, it must appear:

1. That he had actual as distinguished from constructive possession. Goods stored in bonded warehouses, before payment of duties, are not in possession of the factor within the meaning of the statute.

2. That the change of possession was made at the time of the advance which the pledge was intended to secure. See, on this subject, Bonito vs. Mosquera, 2 Bosw., p. 401; Walther vs. Wetmore, 1 E. D. Smith, p. 7; Covell vs. Hill, 6 N. Y., p. 374.

THE EFFECT OF THE NEW YORK ACT is that one who has such documentary evidence of the title to merchandise as gives him the exclusive control of the possession is deemed the true owner of the property for certain purposes, if the true owner has intrusted him with such evidence for the purpose of disposing of the property. A factor so situated can sell or pledge the whole or a part of the property, or give a lien upon it for advances. If he misappropriates the property his principal must suffer, not the person who has dealt with the factor on the faith of the position in which the owner has placed him. Thus one who has made advances to a factor upon the faith of a warehouseman's receipt of imported goods, given to the factor in consequence of his being intrusted with an invoice of the goods, is protected, though the invoice showed that the goods belonged to the shipper. To bring a case within the Act, it is not necessary that the true owner should have intrusted the factor with the identical evidence of title on the faith of which the factor procures the loan. Intrusting him with primary documents out of which others, in the usual course of trade, grow, is equivalent to intrusting him with the latter. Nor is it strictly necessary that the documentary evidence of title should be delivered at the very time when the loan is made. If good faith is shown, the loan may be made at one

time and the pledge created afterwards.-Cartwright
vs. Wilmerding, 24 N. Y., p. 531. Before this Code
was adopted it was limited to disposition by a "factor
or other agent."

THE TEXT EXTENDS it to all persons allowed to as-
sume the apparent ownership. This will not, however,
extend the rule to all cases of mere possession. Mere
possession of goods is not evidence to the world of an
unlimited authority to sell them, so as to preclude the
owner from showing, as against a purchaser, that they
were intrusted to him not for sale but for a different
purpose, such as transportation or temporary custody.-
Cook vs. Beal, 1 Bosw., p. 497; compare Zachrisson
vs. Ahman, 2 Sandf., p. 68. It is clear that one who
takes from the factor or agent, with notice of the true
owner's right, is not protected by the Act.-Stevens
vs. Wilson, 3 Den., p. 472, affirming S. C., 6 Hill, p.
512; Covell vs. Hill, 6 N. Y., p. 374; Wilson vs. Nason,
4 Bosw., p. 155. This principle is preserved by the
provisions in the text.-See Goldstein vs. Hort, 30 Cal.,
p. 372. Where a factor purchases property in his own
name he was, in Leet vs. Wadsworth, 5 Cal., p. 405,
held to be to the whole world the apparent owner.
When his only business is to sell them, and they are
consigned to him for that purpose, the factor, in the
case of Hutchinson vs. Bours, 6 Cal., p. 385, was held,
on account of his notorious employment, to be known
to all the world as a factor for the purpose of selling
only, and had no power to pledge the goods consigned
to him. But where there was nothing in the business
of consignees to make them technically factors, third
parties are not bound to know that they acted as factors
in pledging particular goods.-Glidden vs. Lucas,
Cal., p. 29; see, also, Horr vs. Barker, 11 Cal., p. 402.
See, also, as to sale of stocks pledged, Mahoney vs.
Caperton, 15 Cal., p. 315.

lender,

2992. Property may be pledged as security for Pledge the obligation of another person than the owner, and what in so doing the owner has all the rights of a pledgor for himself, except as hereinafter stated.

NOTE.-Code Napoleon, 2077; Civ. Code La., Art. 3108. "A person may give a pledge not only for his own debt but for the debt of another also." One may pledge property of another with his consent, express or tacit.-Id., Art. 3112. Circumstances to support tacit

Pledge holder, what.

When

pledge

withdraw

consent must be so strong as to leave no doubt of

owner's intention.-Id., Art. 3113.

2993. A pledgor and pledgee may agree upon a third person with whom to deposit the property pledged, who, if he accepts the deposit, is called a pledge holder. NOTE. From the Code Napoleon, ? 2076.

2994. One who pledges property as security for fender may the obligation of another, cannot withdraw the property pledged otherwise than as a pledgor for himself might, and if he receives from the debtor a consideration for the pledge he cannot withdraw it without his

property pledged.

Obligations of pledge holder.

Pledge holder

must en

consent.

NOTE. This follows as a necessity from the position authorized to be assumed by the owner of property pledged for the debt of another by Sec. 2992, ante, and rests in the simple rule regarding contracts for consideration requiring compliance with the undertaking.

2995. A pledge holder for reward cannot exonerate himself from his undertaking; and a gratuitous pledge holder can do so only by giving reasonable notice to the pledgor and pledgee to appoint a new pledge holder, and in case of their failure to agree, by depositing the property pledged with some impartial person, who will then be entitled to a reasonable compensation for his care of the same.

NOTE. Another consistent requirement arising from Sec. 2992, ante. The pledge holder assumes the position, duties, and obligations of a bailee, either of a gratuitous deposit or a deposit for hire, or otherwise, according to the circumstances. These sections simply particularize these responsibilities and duties, regulate them, and thus relieves his position from misunderstandings which might otherwise embarrass him.

2996. A pledge holder must enforce all the rights of the pledgee, unless authorized by him to waive

force rights
of pledgee. them.

NOTE.-See note to preceding section.

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