Judgement Consolidated Appeals from a judgment and decrees of the High Court (March 31, 1913) reversing judgments of Macleod J. and Beaman J. respectively. The appellants were a firm of commission agents carrying on business at Bagalkote in the Bijapur district. In April, 1911, they were instructed by Chhaganlal Kalidas, who traded in cotton at Bombay, to purchase certain cotton at Bagalkote on his account, and after ginning and pressing it to deliver it to him at Bombay. The appellants were to be paid in account the purchase price together with a commission and their charges for ginning and pressing. Law. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 61 In July, 1911, the appellants handed to the Madras and Southern Maratha Railway Company at Bagalkote consignments of the cotton for delivery in Bombay to Chhaganlal Kalidas. The cotton was to be carried by rail to Marmagoa, and by sea by the Bombay Steam Navigation Company from Marmagoa to Bombay. In respect of each consignment the railway company issued to the appellants a receipt covering the whole transit to Bombay and in the following form — " Receipt. " From Bagalkote to Bombay. H. R. on B. S. N. Railway via M. R. H. " Senders name Ramdas Vithaldas. To whom consigned Chhaganlal Kalidas." Then followed a tabular statement of the goods, below which it was stated "These goods are accepted for conveyance subject to the conditions printed on the back herein." Condition 3 was " That the railway receipt given by the railway company for the articles delivered for conveyance must be given up at destination by the consignee to the railway company or the railway company may refuse to deliver, and the signature of the consignee or his agent in the delivery book at the destination shall be complete evidence of delivery. If the consignee does not himself attend to take delivery he must indorse on the receipt a request for delivery to the person to whom he wishes it to be made, and if the receipt is not produced the delivery of the goods may, at the discretion of the railway company, be withheld until the person entitled in its opinion to receive them has given an indemnity to the satisfaction of the railway company." The railway receipts were forwarded by the appellants to Chhaganlal Kalidas, who, on dates before August 5, 1911, indorsed and delivered two of them, covering 135 bales, to the respondents in the first appeal to secure an advance of Rs. 15,000, and indorsed and delivered one, covering 73 bales, to the respondents in the second appeal to secure an advance of Rs.8800. The indorsements consisted of the signature of the consignee and the words "please deliver the goods mentioned in this receipt to " the respective respondents by name. On August 5, 1911, the appellants, in consequence of hundis drawn in their favour by Chhaganlal Kalidas in respect of his indebtedness to them not being met, telegraphed to the Bombay Steam Navigation Company, in whose possession the 135 and 73 bales still were, not to deliver them to the consignees, but to deliver to a named agent of the appellants. The respondents also claimed the bales in question from the Navigation Company, who instituted the present suits under Order xxxv. of the Civil Procedure Code, 1908, against the appellants, the respondents, and the consignees praying that the defendants might be ordered to interplead concerning their respective claims. The first suit was tried by Macleod J. He held that the appellants had the rights of unpaid sellers to stop the goods in transit; he further held that the receipts were not " instruments of title " within the meaning of s. 103 of the Indian Contract Act, 1872, and that the appellants were consequently not bound to pay or tender to the respondents the amount advanced. The case was subsequently remanded to the learned judge for the trial of certain issues which he had not determined, and further evidence was adduced. In his judgment on remand the learned judge found that the respondents had advanced Rs. The case was subsequently remanded to the learned judge for the trial of certain issues which he had not determined, and further evidence was adduced. In his judgment on remand the learned judge found that the respondents had advanced Rs. 15,000 in good faith, and that the railway receipts were indorsed to them as security for the general balance due to them, including the Rs. 15,000. After considering the evidence as to the Law. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 62 usage of trade he said "It has been proved that amongst merchants and commission agents dealing in cotton in Bombay railway receipts indorsed by one holder to another are considered as representing the goods and entitling the last indorsee to delivery. But it does not follow from that, that there is a usage that the last indorsee is entitled to delivery as against an unpaid vendor who stops the goods in transit." In the meantime the second suit came on for trial before Beaman J., and it was agreed by the parties that judgment should be given in accordance with the first decision of Macleod J. subject to appeal. Both appeals were dealt with by the High Court in one judgment. The learned judges (Sir Basil Scott C.J. and Chandavarkar J.) stated that it was conceded that the present appellants were in the position of unpaid vendors, and they found in both cases that the advances had been made in good faith. They held that, part of the transit being by sea, the railway receipts were similar to bills of lading and were " instruments of title " within the meaning of s. 103 of the Indian Contract Act; that the Transfer of Property Act, 1882, by s. 137 had declared railway receipts to be " instruments of title " ; that the evidence as to the usages of trade showed that the receipts were instruments of the character referred to in s. 103. The judgments of Macleod J. and Beaman J. were accordingly reversed. The appeal is reported at I. L. R. 38 Bomb. 255. 1916. May 26, 29. De Gruyther, K.C., and E. B. Raikes, for the appellants. The judgments of Macleod J. and Beaman J. were accordingly reversed. The appeal is reported at I. L. R. 38 Bomb. 255. 1916. May 26, 29. De Gruyther, K.C., and E. B. Raikes, for the appellants. The expression " bill of lading or other instrument of title " in s. 103 of the Indian Contract Act, 1872, means a bill of lading or other document the indorsement of which operates as a constructive delivery of the goods referred to. A distinction is intended to be drawn between a " document showing title " referred to in s. 102 and an " instrument of title " referred to in s. 103. The railway receipts may have been " documents of title," but they were not " instruments of title." Condition 3 does not provide or suggest that the property in the goods is transferable by indorsement of the receipt. In Great Indian Peninsula Ry. Co. v. Hanmandas (( 1889) I. L. R. 14 Bomb. 57.) it was held that a similar receipt was not an " instrument of title." Sects. 108 and 178 of the Indian Contract Act do not deal with transfers by persons who have the property in the goods ; there is no provision in India corresponding to the English Factors Act, 1877. Under the law in England in 1872 the indorsement of the receipt would not have affected the right of stoppage in transit. Sect. 103 was presumably intended to embody that law. [Merchant Banking Co. v. Phoenix Bessemer Steel Co. lain(( 1877) 5 Ch. D. 205, 217.) and The Tigress (( 1863) 32 L. J. (Adm.) 97.) were also referred to.] Sir Erle Richards, K.C., and Sir W. Garth, for the respondents. No valid distinction can be drawn between an "instrument of title " referred to in s. 103 and a "document showing title " referred to in ss. 102 and 108. Sect. 137, added to the Transfer of Property Act, 1882, by Act II. of 1900, shows that the Legislature intended to include a railway receipt in the expression " instrument of title." By s. 4 of the former Act s. 137 forms part of the Contract Act. 102 and 108. Sect. 137, added to the Transfer of Property Act, 1882, by Act II. of 1900, shows that the Legislature intended to include a railway receipt in the expression " instrument of title." By s. 4 of the former Act s. 137 forms part of the Contract Act. The expressions " document of title," " document showing title," and " instrument of title "as used in the Act each, includes any document which is used in the ordinary course of business as proof of the possession or control of goods. The evidence shows that the railway receipts were documents of that character. The law in England upon the present question was much in dispute in 1872. There is no reason for supposing that s. 103 was intended to reproduce English law as it then stood. [Benjamin on Sale, 5th ed., pp. 847, 857, and Carver on Carriage by Sea, 5th ed., art. 532, were referred to.] Great Indian Peninsula By. Co. v. Hanmandas (I. L. R. 14 Bomb. 57.) was wrongly decided. De Gruyther, K.C., replied. June 22. The judgment of their Lordships was delivered by Law. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 63 LORD PARKER OF WADDINGTON. The question which arises on these appeals is whether a railway receipt issued to the consignor of goods in the form appearing in the record is an " instrument of title " within the meaning of s. 103 of the Indian Contract Act. Sect. 103 of that Act is one of a group of sections relating to a sellers right to stop goods while they are in transit to the buyer. Sect. 99 defines the right. Sect. 100 provides that goods shall be deemed to be in transit while in course of transmission to and not yet come into the possession of the buyer. Sect. 101 lays it down that the right does not, except in the cases thereinafter mentioned, cease on the buyer reselling the goods while in transit and receiving the price, but continues until the goods have been delivered to the second buyer or to some one on his behalf. Sect. Sect. 101 lays it down that the right does not, except in the cases thereinafter mentioned, cease on the buyer reselling the goods while in transit and receiving the price, but continues until the goods have been delivered to the second buyer or to some one on his behalf. Sect. 102 provides that the right of stoppage ceases if the buyer, having obtained a bill of lading or other " document showing title " to the goods, assigns it, while the goods are in transit, to a second buyer, who is acting in good faith and who gives valuable consideration for them. The expression " document showing title " is used again in s. 108, which refers to a " bill of lading, dock warrant, warehouse-keepers certificate, wharfingers certificate or warrant or order for delivery, or other document showing title to goods." The same enumeration is found in s. 178, except that in this section the expression " document of title" is substituted for " document showing title." Sects. 108 and 178, though they very possibly extend, at least cover the same ground as the provisions of the Indian Act XX. of 1844, which, with certain modifications not material for the purposes of this appeal, made the provisions of the English Factors Act, 1842, applicable to British India. Both the last-mentioned Acts use the expression " document of title to goods," and define it as including any bill of lading, dock warrant, warehouse-keepers certificate, wharfingers certificate, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods or authorizing or purporting to authorize, either by indorsement or by delivery, the possessor of the document to transfer or receive the goods thereby represented. In their Lordships opinion the only possible conclusion is that, whenever any doubt arises as to whether a particular document is a " document showing title " or a " document of title " to goods for the purposes of the Indian Contract Act, the test is whether the document in question is used in the ordinary course of business as proof of the possession or control of goods, or autho rizing or purporting to authorize, either by indorsement or delivery, the possessor of the document to transfer or receive the goods thereby represented. In the present case it has been found as a fact by both the Courts below, and is not, and indeed cannot, be disputed before this Board, that the railway receipts in question satisfy this test. It is therefore unnecessary to consider whether, apart from evidence as to the ordinary course of business, the effect of ss. 4 and 137 of the Transfer of Property Act (IV. of 1882 as amended by II. of 1900) would be conclusive on the point. It is clear that, even without the assistance of these sections, the receipts in question are documents showing title to goods within ss. 102 and 108 and documents of title to goods within s. 178 of the Indian Contract Act. Returning to s. 102, its effect may be stated as follows First, so far as bills of lading are concerned, it enacts the rule of the common law by which a second buyer who obtained an assignment of the bill of lading obtained constructive delivery of the goods represented by the bill, so that the vendors right of stoppage ceased. Secondly, so far as other documents of or showing title to the goods are con cerned, it makes their assignment to a second buyer have the same effect as the assignment of a bill of lading. If, therefore, the respondents in these appeals had been second buyers and not pledgees of the goods represented by the receipts in question, the appellants right of stoppage would have been displaced. Passing now to s. 103. it will be found to provide that where a bill of lading or other " instrument of title " to any goods is assigned by the buyer of such goods by way of pledge to secure an advance made Law. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 64 specifically upon it in good faith, the seller cannot, except on payment or tender to the pledgee of the advance so made, stop the goods in transit. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 64 specifically upon it in good faith, the seller cannot, except on payment or tender to the pledgee of the advance so made, stop the goods in transit. If this section had used the expression " document showing title " or " document of title " instead of the expression " instrument of title," it is, in their Lordships opinion, quite clear that it would have applied to the receipts in question, and that the vendor could not have stopped the goods in transit without payment or tender to the respective respondents of the amounts of their advances, which were admittedly made in good faith and specifically upon the security of the receipts in question. In other words, the section would have done, in the case of assignments by way of pledge, precisely what had been done in the previous section in the case of assignments upon a resale. Great stress was naturally laid by the appellants on this difference of expression. They argued that "instruments of title" were a particular species of the genus " documents of title," and they attempted to define the species as consisting of documents which conferred title in the same manner and sense as title is conferred by a bill of lading. They supported this argument by the following considerations First, they contended that the Indian Contract Act was primarily a consolidating Act, and therefore ought, in default of a clear expression to the contrary, to be read as embodying the law as existing when it was passed. Secondly, they urged the improbability of the Indian Legislature having taken the lead in a legal reform for which this country had to wait until the passing of the English Factors Act of 1877. Their Lordships cannot attach any weight to either consideration. The Indian Contract Act recites the expediency of defining and amending certain parts of the law relating to contracts. It is therefore an amending as well as a consolidating Act, and beyond the reasonable interpretation of its provisions there is no means of determining whether any particular section is intended to consolidate or amend the previously existing law. Again, their Lordships do not see any improbability in the Indian Legislature having taken the lead in a legal reform. It is therefore an amending as well as a consolidating Act, and beyond the reasonable interpretation of its provisions there is no means of determining whether any particular section is intended to consolidate or amend the previously existing law. Again, their Lordships do not see any improbability in the Indian Legislature having taken the lead in a legal reform. Such reform may have been long recognized as desirable without an opportunity occurring for its embodiment in a legislative enactment, and it may well be that the opportunity occurred sooner in India than in this country, where the calls for legislative action are so much more numerous. It remains to consider the appellants argument so far as it is based on the use of the expression " instrument " instead of " document " of title. In the first place it is to be observed that " title " in both expressions can relate only to the right to receive delivery of the goods to which the instrument or document relates. It can have nothing to do with ownership. A bill of lading may in this sense be an instrument or document conferring title ; but, if so, the same is true of all the other documents contained in the genus " document of title." The fact that a document confers title in this sense cannot therefore be used as the distinguishing mark of a particular species of the genus. The truth is that the only point in which a bill of lading differs from other " documents of title " is that its assignment, whether upon a resale or by way of pledge, operates as a constructive delivery of the goods to which it refers. The appellants counsel was unable to mention, and their Lordships are not aware of, any other document with this peculiarity. In their Lordships opinion the suggestion that the words " or other instrument of title " were inserted per cautelam in case there were any such instrument other than a bill of lading is far-fetched. Moreover, they cannot help thinking that the section, if intended to have the effect for which the appellant contends, would have been otherwise worded. In their Lordships opinion the suggestion that the words " or other instrument of title " were inserted per cautelam in case there were any such instrument other than a bill of lading is far-fetched. Moreover, they cannot help thinking that the section, if intended to have the effect for which the appellant contends, would have been otherwise worded. Further, no reason can be suggested why, if (as is clearly the case) the Legislature intended by s. 102 to assimilate other documents of title to bills of lading for the purpose of determining the right of stoppage in transit in favour of a bona fide purchaser for value, it should not have by s. 103 intended to do the same in favour of a bona fide pledgee for value. Under these circumstances little importance can be attached to the fact that one section employs the word " document " and the other the word " instrument," more especially as the use of the two expressions document showing title " and " document of title " in the same sense shows that the draftsman was not very careful in his use of language. Law. Rep. 43 Ind. App. 164 ( 1915- 1916) Ramdas Vithaldas Durbar V. S. Amerchand & Co. 65 For the foregoing reasons their Lordships are of opinion that these appeals fail and should be dismissed with costs, and they will humbly advise His Majesty accordingly.