Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KD 1675.H84 Principles of the law of stoppage in tra 3 1924 022 474 518 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022474518 PRINCIPLES OF THE LAW OF STOPPAGE IN TEANSITU, EETENTION AND DELIVEEY. JOHN HOUSTON, OF THB MIDDLE TEMPLE, ESQ , BARRISTER- AT- LAW. LONDON: STEVENS & HA.YNES, 11, BELL YAED, TEMPLE BAB.. 1866. PREFACE. It is now more thaa twenty years since a separate Treatise on the Law of Stoppage in Transitu was written by any member of the profession ; and that branch of the Law Merchant is certainly of sufficient importance to the Commercial Public to entitle it to a distinct compila- tion and digest of the leading decisions of English Law upon the subject. This Book is intended for the use' of the Mercantile Community as well as for that of the Profession of the Law, seeing that emergencies constantly arise in Commerce where promptitude is so much an element of success as to render the services of Counsel unavailable. Under these circumstances, perhaps this short Treatise on the subject may not be considered unnecessary. The Work does not lay claim to the merit of origi- nality, for the subject has already been discussed at con- siderable length in various books, viz., in the collections of Leading Cases on Commercial Law, by Smith, Tudor, and Ross, respectively ; in connection with the Law of Merchant a 2 IV PREFACE. Shipping, by Abbott and Maclachlan, respectively ; in con- nection ■witb the Law of Lien, by Cross ; as part of the law relating to the Contract of Sale, by Blackburn (Mr. Justice) ; as a branch oi Mercantile Law, in Kent's Comrqentaries on the Law of America, and in Bell's Commentaries on the Law of Scotland. To all these writers • this work is in- debted for some of its' leading principles ; for it is difficult to write a book readable, yet useful for reference, abiding by authority and at the same time giving to each principle its due importance, without having recourse to the earlier treatises which have been written on the subject. 3, Bkick Court, Temple, 31 March, 1866. TABLE OF CONTENTS. INTEODUCTIOTSr. NATURE AND HISTORY OF THE RIGHT. Civil Law . 2 Law of France ........... l Law of Russia . . 6 Law of Holland . . . _ ' jr Law of America 8 Law of Scotland 9 Law of England 10 Its equitable origin ••■........ 12 CHAPTER I. "WHO MAY VALIDLY EXERCISE THE RIGHT. Anyone in the position of vendor ..... .15 Agent purchasing in his own name . 17 Consignor ]9 Consignor on joint account . 20 Alien enemy ti'adiug under a licence from the Crown . . . .21 .Bore(J _;?(^e transferee of bill of lading 22 Assignee of part cargo 23 Effect of ratification by principal of agent's act . . . . . 24 Natui'e of the debt out of which the authority arises . . . .27 CHAPTER il. UNDER WHAT CIRCUMSTANCES THE EIGHT ARISES. Sbotion I. — Vendor must be unpaid 30 Effect of credit given to vendee 31 Effect of payment to agent of vendor . . . . 32 Effect .of mutual accounts ...... 33 Conditions necessary to validity . . , . . 34 VI TABLE OF CONTENTS. Section II,— Vendee must be insolvent . . Consequences of wrongful exercise . Vendee need not be formally bankrupt PAGE . 35 36 38 CHAPTER III. IN WHAT MANNER THE RIGHT MAY BE EXERCISED. Section I. —Effect of the bankruptcy of the vendee . . . .41 Delivery after bankruptcy 42 Section II. — Effect of rejection of the goods by the vendee . . . 43 Eights of parties to rescind the contract ... 44 Vendee's power of rejection 45 Effect of actual delivery 46 Re-delivery after bankruptcy 47 Re-delivery after insolvency, but before bankruptcy . 48 Section III.^Modes of stopping delivery ...... 49 By bill of lading to vendor's order . . . .50 By entry of the goods at the Custom-house . . . 51 By mere claim 62 By notice to carrier 53 By notice to immediate custodier .... 55 Notice by agent 57 Proceeding in the Admiralty Court . . . .58 Proposal of indemnity to shipmaster . . . . 59 CHAPTER IV. ■WHEN GOODS ARE DEEMED TO BE IN TRANSITU, AND HEREIN OF DELIVERY. Transitus defined .... 61 Original conception of delivery 62 Transfer of property 63 Actual and constructive possession 64 Duration of transitus 65 Termination of transitus 67 Risk no criterion 68 Section 1.— Goods remaining in the possession of the vendor 69 Effect of marking goods 70 Effect of giving samples to vendee 71 Effect of measuring or separating goods . 72 Acceptance of warehouse-rent .... 73 Constructive possession of vendee 75 Eff6ct of a delivery order 76 Sale to sub-vendee 77 TABLE OF CONTENTS. VU Section II. — Goods in tlie possession of a warehoiisenian or wharfinger Effect of marking the goods ...... Giving a delivery order Receipt of delivery order by the warehouseman Acceptance of warehouse-rent .... Transfer of dock-warrant to vendee .... Delivery of dock-warrant to sub-vendee . Effect of transfer of dock-waiTaut Effect of refusal to transfer "Where price or identity of goods not ascertained . "Weighing before delivery Customary operation unperformed Measuring before delivery ..... Acknowledgment of transfer to sub-vendee . Section III. — Goods in the possession of a carrier or shipma.stcr Delivery into the vendee's own ship Transfer of bill of lading . . ... Goods in the vessel of consignee .... Effect of taking biUs of ladinij to order of consignors Delivery on board a general ship .... On board a ship chartered by the consignee Effect of withholding bUl of lading Ship under exclusive control of consignee Delivery to vendee at a wharf of goods to be shipped Goods in vessel named by vendee .... Effect of shipmaster's refusal to grant receipts Goods specially consigned Bills of lading to order of vendee Goods shipped upon condition .... Eefusal of shipmaster to deliver Section IV. — Goods delivered to an agent of the vendee Delivery of goods to be re-packed .... Intermediate delivery Delivery into depositoi-y of vendee .... Delivery of goods for foreign export Delivery of goods to be forwarded to vendee To be forwarded to branch of vendee's house abroad Delivery into public warehouse .... Eefusal to receive actual possession Actual and constructive possession of agent Section "V. — Effect of partial or conditional delivery . AVhere part separated from the rest "Where contract is entire ... Sub-sale of part Delivery with condition annexed Payment of excise duty Section VI.— Effect of taking delivery short of the ultimate destination Delivery before completion of voyage . Possession during the voyage Consent of carrier Delivery at a particular place Acts of ownership Eetention by carrier Attachment out of Lord Mayor's Court, London . YlU TABLE OF CONTENTS. CHAPTER V. BY WHAT ACTS THE RIGHT MAY BE DEFEATED, Section I. — Of bills of lading .... French law Transfer of contract .... Old law Alteration of the law . Effect of fraud .... Deposit in security .... Several bills of different imports . Indorsement ..... . Delivery Assignment for valuable consideration Negotiability .... Defeat of right of stoppage Delivery of a shipping-note Effect of knowledge of non-payment of goods . Effect of knowledge of insolvency of consignee Assignment of bill of lading in security to partner Special indorsement ...... Consignment on joint account .... Deposit without authoiity Indorsement to factor ..... Mutual credits ....... Pledge by way of security for advances Indorsement without consideration Effect of making goods deliverable to consignor's order Indorsement to agent to exercise the right . Circumstances equivalent to indorsement . Transfer of possession by factor .... Indorsement after delivery .... Indorsement to partner ..... Special indorsement with condition . , Sub-sale without bUl of lading .... Vendor acting for undisclosed principal . Indorsement by agent ..... Authorisation of principal .... Lien of indorsee Indorsement for a limited purpose . Section II. — Of dock-warrants ....... Form Transfer of property Indorsement and delivery .... Notice to dock company is not necessary Indorsement for valuable consideration . Delivery order, is not negotiable .... Section III. — Of the Factors' Acts .... Factor entrusted with documents of property Punishment on violation of trust PAGE 139 140 141 142 143 144 145 146 147 149 151 152 153 154 155 156 157 158 159 160 161 162 163 164 TABLE OF CONTENTS. Section III. — Oontimwd. Pledgee must use reasonable precaution What pledges are not protected Pledge by broker without knowledge of principal Amending Act Judicial construction . . . Applies only to mercantile transactions . Pledge of delivery order does not defeat the right PAGE 195 197 200 201 203 205 206 CHAPTER VI. THE CONSEQUENCES OF STOPPAGE IN TRANSITU. Section I. — Whether stoppage is a rescission of the contract . Effect of its exercise on the contract Eifect of bankruptcy on the contract Assignees may adopt contracts of bankrupt . Vendor's refusal to part with possession of goods Effect of stoppage of part of the goods . Question still unsettled Section II. - Power of re-sale On bankruptcy of vendee On default of vendee . Difference of price on re-sale . Damages for breach of contract Measure of damages Claim against vendee's estate 207 209 211 212 214 216 217 218 220 222 224 225 227 229 ERRATUM. — f — Page 34, liue iO, for "without value" read "for value.'' INDEX TO CASES CITED. Acebal v. Levy, Adams, Noble v. Adcock, Mertens v. Akerman v. Humphrey, Alexander v. Gardner, Pennell v. Allan V. Gripper, V. Stein's Creditors Allen, Blandy v. Anderson v. Clarke, — Hammond v. ■ Harman v. • V. Scott, "Whitehead v. Anderton, Wilson v. Appleby v. Pollock, Ashliu, Greaves v. Atherton, Lackington v. Atkins V. Barwick, Atkinson v. Bell, Ogle V. Austen v. Craven, 226 106 223 15i 68 18, 177 119, 135 8 200 142 90, 127, 129 81, 87, 188 72 55, 123, 137 113 150 224 85 44, 117 70 16, 38, 93 72, 89 B. Bailey v. Cialverwell, Baker, "Wait v. Baldwin, Dixon v. Ball, Caldwell v. Mills V. Neate v. Baring v. Come, Barnes v. Freeland, Barrett, Towers v. Barron, Lindsay v. Barrow v. Coles, Barton v. Bodington, "Williams v. 57, 65 98, 103 47, 66, 67, 116 146 51, 119, 131, 149 47 194 47 208 149 158 83, 187 Bartram v. Farebrother, 192 45, 57, 121 Barwick, Atkins v. .Baxter, Tarling v. Beale, Hunter v. "Vale V. Behrend, Gurney v. Bell, Atkinson II. Berkeley v. "Watling, Betts V. Gibbons, Biddlecomb v. Bond, Bill, Cooper v. Birch, Freeman v. Bird V. Brown, Birnie, Gosling v. Blackburn v. Gregson, Blakey v. Dimsdale, Blandy v. Allen, Bloxam v. Morley, V. Sanders, PAGE 44, 117 68 54, 66 207 18, 35, 102, 143, 172, 177 70 143 127 1 90 19 1, 24, 57 92, 226 2 92 200 220 14, 75, 172, 218 Bodington, Barton v. 83, 187 Bolton V. The Lancashire and "^ork- ahire Railway Company, 44, 122 Bonzi V. Stewart, 200 Booker, "Van Casteel v. 30, 95, 206 Bothlingk v. Inglis, 6, 14, 31, 43, 50, 100, 136, 215 128 191 66 148, 171 35, 227 170 20 170 89, 128 14, 31, 39, 46 1, 24, 57 155 68 95 109, 143, 191 203 V. Scheider, BovUl, Dixon v. Bower, Nicholson v. Bowers, Fearon v. Bowker, "Wilmhurst v. Bowlby, Brandt v. Bowles, Smith v. Brandt v. Bowlby, Breeds, "Wallace v. Brewer, Edwards v. Brown, Bird v. Cuming v. Hare v. V. North, Bryans v. Nix, Brownrigg, Navulshaw v. Xll INDEX TO CASES CITED. Buck, Pickering v. Bunney v. Poyntz, Burghall v. Howard, Burlinson, Laidler v. Busk V. Davis, Butler V. "Wooloot, C. CaldweU v. Ball, Campbell, Patorni v. Wright V. Campion, SavlUe v. Canavan, Kemp v. Carruthers, Gibsou v. Carter, Hibbert v. V. Toussaint, Cassanet, Fitt v. Clarke, Anderson v. Jackson v. V. Spence, Clay V. Harrison, Close 1). Holmes, Coates V. Railton, Cochran v. Irlam, Cock, Thackthwaite v. Coles, Barrow v. Martini v. " Constantia, The,'' 36, Coombes, Eoper v. Cooper V. Bill, Leuckhart v. Corrie, Baring v. Cotesworth, Key v. Cowasjee v. Thompson, Cowley, Litt v. Cox, Waring v. Coxe V. Harden, Craig, Kinloch v. Craven, Austen v. V. Eyder, Crawshay v. Eades, V. Thoi-nton, Crump, Townley v. Culverwell, Bailey v. Cuming v. Brown, D. D'AquUa v. Lambert, Daubigny v. Duval, Davies, M'Combie n. Davis, Busk v. V. Reynolds, Shepley v. Dawson, Pearson v. PAGE 192 32, 125, 222 149 70 89, 128 138 146 149 20, 144, 146 102 154 9, 38, 43, 211 147 72 227 142 201 70 209, 210 196 66, 120 192 70, 189 168 192 140, 149, 174 208 90 19, 137 194 111 31, 108 53, 57, 133 22, 164, 166 92, 165, 167 20, 163 72, 89 80, 107 119, 124 149 76 57, 65 155 12, 14 192 192 89, 128 31, 169 89, 128 77 Devon, Horton v. Earl of, Dick V. Lumsden, Dimsdale, Blakey v. Dixon V. Baldwin, 47, V. Bovill, V. Yates, 1, 32, Dodson V. Wentworth, Dominy, Thompson v. Dorien, Lucas v. Drake, Oakford v. Dresser, Hoare v. Drummond, Robson v. Dunkin, Stonard v. Dunn, Hawkes v. M'Leanv. Dutton V. Solomonson, Duval, Daubigny v. Dyster, Graham v. E. PAGE 149 167 92 66, 67, 116 191 65, 79, 127 66, 12i 141 83, 187 17 111 208 83, 189 16 225 118 192 192 Eades, Crawshay v. 119, 124 Earle, Heinekey v. 49 East India Company, Gordon v. 189 Ede, Mitchell v. 173 Edwards v. Brewer, 14, 31, 39, 46 Giles V. 208 Ellershaw v. Magniac, 16, 98, 102 Ellis V. Hunt, 41, 66, 100, 136 Elmore v. Stone, - 72 Evans «. Martlett, 140,145,147 V. Nichol, 109 V. Trueman, 195 F. Farebrother, Bartram v. Farmer, Thompson v. Fearon v. Bowers, Feise v. Wray, 14, 18, Fenton «. Pearson, Field, Northey v. Salte V. Smith, V. Fisher, Hai-mau it. Fitt V. Cassanet, Fletcher v. Heath, Flyn V. Mathews, Fort, Jones v. Foster v. Frampton, Fowler v. M'Taggart, Fox V. Nott, Fragano v. Long, Frampton, Foster v. Ffanklin v. Miller, Freeland, Barnes v. Freeman v. Birch, 45, 57, 121 201 148, 171 30, 172, 208 21 52, 135 44, 46 46 47 227 200 70 49 119, 134 101, 105 143 106 119, 134 208 47 19 INDEX TO CASES CITED. Frost, Whitehouse v. Fuvnell, Zagary v. PAGE 8, 72, 91 G. Gardrifer, Alexander v. Gibbons, Betts v. Gibson v. Ciirrntlievs, 9, 38, '43, Valpy V. Giles V. Edwards, Gillett, Mawnian v. Gilmouv V. Supple, Godts V. Rose, Goodall V. Skelton, Goodhart i\ Lowe, Gordon v. E. India Co. Miles V. Gosling t>. Birnie, Goss, Eiohardson v. Smith V. Graliam v. Dyster, Gray, Morison v. Greaves v. Asblin, Green v. Haythorne, Gregson, Blackburn v. Grifiin, James v. 39, 46, 66, 125, 134, Gripper, Allan v. 119, Gurneyu Belirend, 18, 35, 102, 172, Gwynne, Ex parte. 70, 92, 47, 66, 120, 22, 127 211 114 208 205 68 84 129 50 189 73 226 117 138 192 166 224 71 2 122, 210 135 143, 177 128 H. Hagedorn v. Ijaing, Haille v. Smith, Hammond v. Anderson, Hanson v. Meyer, Harden, Coxe v. Hare v. Brown, Harford, Eayner v. Hannan v. Anderson, V. Fisher, Harrison, Clay v. Hart, Nichols «. Haswell V. Hunt, Hatfield v. Phillips, Euck V. Hawes v. Watson, Hawkes v. Dunn, Hay, Morley v. Haythorne, Green v. Heath, Fletcher v. Heinekey v. Earle, Heyward, Slubey v. Hibbert r. Carter, 223 21, 34, 154 90, 127, 129 87, 128 92, 165, 167 68 70 81, 87, 188 47 209, 210 28 40, 42 199, 203 108 91 16 19, 122, 138 71 200 49 126 147 Higgins V. Senior, Hinde v. Whitehouse, Hoare v. Dresser, Hodgson V. Le Bret, V. Loy, Hollingworth, Tooke v. Holmes, Close v. Hoist ». Powuall, Hore V. Milner, HorsfaU, Knowles v. Horton v. Earl of Devon, Howard, Burghall v. V. Shepherd, Hudson, Smith v. Hughes, In re, Stoveld V. Humphrey, Akerman v. Tucker v. Hunt, Ellis V. 41, Haswell v. ti. Ward, Hunter v. Beale, Hurry v. Mangles, Hutchings v. Nunes, Hnth, Phillips v. I. PAfiE 142 68 111 72 29, 208 13, 41 196 67, 130, 133 223 70 149 149 141 116 83 70 154 16, 121, 191 66, 100, 136 40, 42 120 54, 66 71, 73, 82 26, 57 199, 203 Inglis, Bothlingk v. 6, 14, 31, 43, 50, 100, 136, 215 V. Usherwood, 14, 31, 50, 100 Irlam, Cochran v. 192 Jackson v. Clarke, V. Nichol, James v. GrifiSn, Jenkyns*. Usborne, V. Brown Jewell, Veutue v. Jones V. Fort, V. Jones, 201 54, 119, 135 39, 46, 66, 122, 125, 134, 210 22, 175, 191, 206, 210 95 1, 27, 32 49 127 K. Kebble, Milgate v. 221 Kemp V. Cauavan, 154 Kennoway, Noble v. 187 Key V. Cottesworth, 111 Keymer, Shipley v. ' 192 V. Suwercropp, 224 Keyser*. Suse, 83, 190 Kiiiloch V. Craig, 20, 163 XIV INDEX TO CASES CITED. Knatchbull, Reader v. Knowles v. Horsfall, Kymer, Taylor v. PAGE 215 70 200 Lackington v. Athevton, 85 Laidler v. Burlinsou, 70 Laing, Hagedom » 223 Lambert, D'Aquila v. 12, 14 Langfort v. Tyler, 218 La Riviere, Stokes v. 64, 66 Lawes, Wright v. 72, 132, 134 Le Bret, Hodgson v. 72 Leeds v. "Wright, 66, 116 Lefeuvre, Nicholls v. 19, 57, 121 Leigh V. Paterson, 208 Leuckhart v. Cooper, 19, 137 Levy, Aoehal v. 226 Lickbarrow v. Mason, 151, 160, 180 Lindsay v. BaiTon, 149 Litt V. Cowley, 53, 57, 133 Liverpool Dock Trustees, Turner v. 16, 93 Lloyd, "Whitmore v. 145 Loeschman v. Williams, 129 London Docks Co., Wright v. Ill Long, Fragano v. 106 Lowe, Goodhai't v. 60 Loy, Hodgson v. 29, 208 Lucas V. Dorien, 83, 187 Lumsden, Dick v. . 167 Lyss, Withers v. 89, 128 M. McCombie v. Davies, McEwan v. Smith, McKellar, Schuster v. McLean v. Dunn, McTaggart, Fowler v. Magniac, EUershaw ■;;. Mangles, Hurry v. Mucklow V. Manton v. Moore " Marie Joseph, The," Marriot, Masters v. Marshall, Sparkes v. Martindale v. Smith Martini v. Coles, Martlett, Evans v. Mason v. Lickbarrow, Masters v. Marriot, 192 69, 81, 191 • 108, 157 225 101, 105 16, 98, 102 71, 73, 82 70 70 145 208 70 221 192 140, 145, 147 162, 160, 180 208 Mathews, Flyn v. Mawman v. GiUett Meletopulo v. Rankin Mertens ®. Adcock Meyer, Hanson v. Miles V. Gorton Milgate v. Kebble Miller, Franklin v. Mills V. Ball, 39, 61, Miluer, Hore v. Minett, Rugg v. Mitchell V. Ede Moates, Small v. Monk V. Whitembury Montgomery, Walley v. Moore, Manton v. Morison v. Gray, Morley, Bloxam v. V. Hay, Morris, Sargent v. Morse, Owenson v. Moyne's case Mucklow V. Mangles, Murdock, Orr v. PAGK 70 205 110 223 87, 128 73 ^221 208 119, 131, 149 2^3 68, 89 173 80 193, 206 35, 95 70 22, 166 220 19, 122, 138 141 129 208 70 129 N. Navulshaw v. Brownrigg, 203 Neate v. Ball, 47 New V. Swain, 74, 222 New Quay Co., Sheridan «. 113 Newsom v. Thornton, 1, 20, 159, 192 Nichol, Evans v. Jackson v. Nicholls V. Lefeuvre, V. Hart, Nicholson «. Bower, Nissen, Salomons v. Nix, Bi-yans v. V. Olive, Noble V. Adams, V. Kennoway, North, Brown v. Northey v. Field, Nunes, Hutchings v. 0. 109 54, 119, 135 19, 57, 121 28 66 167 109, 143, 191 53 106 187 95 62, 135 20,57 Oakford v. Drake, 17' Ogle V. Atkinson, 16, 38, 93 Olive, Nix v. 53 Oppenheim v. Russell, 119, 134, 137 Orr V. Murdock, 129 Outhwaite, Wentworth v. 66, 117, 216 Ov^enson v. Morse, 129 INDEX TO CASES CITED. XV P. Paterson, Leigh v. V. Tash, Patorni v. Campbell, Patten v. Thompson, Payne v. Shadbolt, Pearson v. Dawson, Fenton v. Pennell v. Alexander, Pettit, Scott V. Phillips, Hatfield v. V. Huth, Pickering t>. Buck, Pickford, Rowe v. Pollexfen v. Moore, Pollock, Appleby v, Pownall, Hoist v. Poyntz, Bunney v. Prescott, Snee «. 10, Pringle v. Taylor, Pym, Sweet v. Q. Quieroz v. Trueman, E. Eailton, Coates v. Rankin, Meletopulo v. Kathbone, Solly v. Eayner v. Harford, Reader v. Knatchbull, Reg. V. Skeen, Reynolds, Davies v. "Withers v. Richardson v. Goss, Robson V. Drummond, Roper 0. Coombes, Rose, Godts v. Rowe V. Pickford, Ruck V. Hatfield, Ruding, Spalding u. Rugg V. Mmett, Russell, Oppehheim v, Wood V. Ruston, Tucker v. Ryder, Craven o. 208 192 149 16, 31, 161 127 77 21 18, 177 42, 116 199, 203 199, 203 192 118 2 160 67, 130, 133 32, 126, 222 14, 68, 149, 182 208 19 •192 66, 120 110 192 70 215 206 31, 169 208 47, 117 208 208 84 118 108 183 68,89 119, 134, 137 70 83, 189 80, 107 Salomons v. Missen, Salte V. Field, Samuda, Zwinger v. Sanders, Bloxam v. ■ V. Vanzeller, 157 44, 46 186 14, 75, 172, 218 141 Sargent v. Moms, Saville v. Campion, Scheider, Botlilingk v. Schuster V. McKellar, Scott, Anderson v. V. Pettit, ScoveU, JTanner ». Senior, Higgins v. Shadbolt, Payne v. Shepherd, Howard v. Shepley v. Davis, Sheridan v. New Quay Co. Shipley v. Keymer, Sitf ken v. Wray, Simmons v. Swift, Skelton, Goodall v. Slubey v. Heyward, Small V. Moates, Smith V. Bowles, V. Field, V. Goss, Haille v. V. Hudson, McEwan v. Martindale v. Snee v. Prescott, 10, 14, Solly V. Rathbone, Solomonson, DuttOn v. Sothern, Swanwick v, Spalding v. Ruding, Sparkes v. Marshall, Spear v. Travers, Spence, Clarke v. Stein's Creditofs, Allan u Stephens v. Wilkinson, Stewart, Bonzi v. Stokes V. La Riviere, Stonard v. Dunkin, Stone, Elmore v. Stoveld V. Hughes, Supple, GUmour v. Suse, Keyser v. Suweroropp, Keymer v. Swain, New v, Swanwick v. Sothern Sweet V. Pym, Swift, Simmons v. T. Tanner v. ScoveU, Tansley v. Turner, Tarhng v. Baxter, Tash, Paterson v. TasseU, Wood v. Taylor v. Keymer, Pringle v. V. Traeman, PAGE 141 102 128 108, 157 72 42, 116 89, 125 142 127 141 89, 128 113 192 17, 61 89, 124 70, 129 126 80 20 46 66, 120, 138 21, 34, 154 116 69, 81, 191 221 68, 149, 182 192 118 91, 129 183 70 84, 185, 188 70 8 209 200 54,66 83, 189 72 70 68 83, 190 224 74, 222 91, 129 19 89, 124 125 90 68 192 89 200 208 200 XVI INDEX TO CASES CITED. PAGE Thackthwaite v. Cock, 70, 189 Thompson, Cowasjee v. 31, 108 t/. Dominy, 141 V. Farmer, 201 Patten v. 16, 31, 161 V. Tram, 114, 172 Thornton, Orawshay v. 149 Newsom ». 1, 20, 159, 192 "Tigress, The," 34, 57, 113, 149, 171 Tooke V. Hollingworth, 13, 41 Toussaint, Carter v. 72 Towers v. Barrett, 208 Townley v. Crump, 76 Trail, Thompson v. 114, 172 Travers, Spear v. 84, 185, 188 Trueman, Evans v. 195 Quieroz v, 192 Taylor ?». 200 Tucker v. Humphrey, 16, 121, 191 V. Eustou, 83, 189 Turner i;.' Liverpool Dock Trustees, 16, 93 Tansley v. 90 Tyler, Langfort v. 218 U. Usborne, Jenkyns v. 22, 175, 191, 206, 210 TJsherwood, Inglis v. 14, 31, 50, 100 V. Vale«. Beale, 207 Valpy V. Gibson, 114 Van Casteel v. Booker, 30, 95, 206 Vandeput, Wiseman v. 9 Vanzeller, Sanders v, 141 Vertue v. Jewell, 1, 27, 32 W. Wait V. Baker, 98, 103 Walker & Woodbridge, Ex parte, 52 PAGE Wallace v. Breeds, 89, 128 Walley v. Montgomery, . 35, 95 Ward, Hunt v. 120 Waring v. Cox, 22, 164, 166 Watling, Berkeley*. 143 Watson, Hawes v. 91 Wentworth, Dodson v. 66, 124 .v. Outhwaite, 66,117,216 Westzinthus, In re, 180 Wliite V. Wilkes, • 72, 89 Whitehead v. Anderson, 55, 123, 137 Whitehouse v. Fi-o^t, Hinde v. Whitembury, Monk v. Whitmore v. Lloyd, Wilkes, White v. Wilkinson, Ex partf, Stephens v. Williams v. Barton, Loeschman v. WUmhurst v. Bowker, Wilson V. Anderton, Wiseman v. Vandeput, Withers v. Lyss, V. Reynolds, i, 72, 91 68 193, 206 145 72, 89 12 209 192 129 35, 227 113 9 89, 128 208 27, 57 70 Wood V. Jones, V. Russell, V. Tassell, 89 Woolcot, Butler v. 138 Wray, Feise v. 14, 18, 30, 172, 208 Siffken v. 17, 51 Wright V. CampbeU, 20, 144, 146 V. Lawes, 72, 132, 134 Leeds v. 66, 116 - — — V. London Docks Co., Ill Y. Yates, Dixon v. 1, 32, 65, 79, 127 Z. Zagury v. Fumell, Zwinger v. Samuda, 68 186 A TKEATISE ON THE LAW OP STOPPAGE IN TEANSITU. INTRODUCTION. NATURE AND HISTORY OF THE RIGHT. Stoppage in transitu is a right whicli arises to an unpaid vendor to resume the possession, with which he had parted, of goods sold upon credit, before they come into the possession of a vendee who has become insolvent, bankrupt, or embar- rassed in circumstances (a). , The term " insolvent," when it relates to the right of stoppage in transitu, means a general inability to satisfy obligations evidenced by stopping payment. In such a pase, the vendor is allowed to countermand delivery before or at the place of destination, and to resume the possession of the goods, according to that equitable pi-inciple in the law of contract, by which one party may withhold, on the other becoming unable to give performance. But it is not an unlimited right ; for the vendor cannot exercise it if he has parted with the documents sufficient to transfer the property, and the vendee, upon the strength of them, has sold the goods to a bondjide purchaser without notice. (a)' See Biddlecortib v. Bond, 4 A. & E. 332 ; Vertue v. Jeviell, i Camp. 31 ; Newsom v. Thornton, 6 East, 17 ; Dimn v. Yates, 5 B. & Ad. 315 ; Bird V. Brown, i Exch. 786. 2 STOPPAGE IN TRANSITU. Stoppage in transitu is an equitable extension of the common law right of lien which permits the retention of property until some claim attaching to it is satisfied. The origin of the right of lien has been ascribed to the Roman law, which considered that things sold and delivered were not acquired by the buyer until he had paid the price to the seller, or satisfied him in one way or other, as by procuring security, or by giving a pledge (6). " But," says Lord Tenterden (c), " the law of England is in this respect more favourable to the transfer of property, the great subject of commerce, and less attentive to the interest of the seller of goods than the ancient Civil law, or the modern law of many European nations, which is chiefly founded on the Civil law. For by the general law of England, when goods have been dehvered into the actual or constructive possession of the buyer, they cannot be reclaimed" (d). The hardship occa- sioned by this rule of law gave rise to the doctrine of stoppage in transitu, which is universally approved of by merchants, for the solid reason " that the goods of one man should not be applied in payment of another man's debts" (e). It is difl&cult to determine the true principle on which the doctrine was established ; though first introduced as a purely (J) Venditae vero res et traditse non aliter emptori adqiviruntili', quam si is venditori pretium solvent, vel alio modo ei satisfecerit : Inst. 2. 1. 41. Quod vendidi, non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptori sine ulla satis- factione : Dig. 18. 1. 19 & 53 ; 19. 1. 13. 8 ; and 14. 4. 5. 17 & 18. Pothier, Pandectse, 18. 3. 1, says, Lex Commissoria est ea, quEe inter venditorem et emptorem convenit, ut si intra praefinitum diem pretium solutum non sit, res sit inempta ; and Ulpian, Dig. 18. 3. 1. 1, says, Si fundus, Commissoria lege, venierit, magis est sub conditione resolvi emptio, quam sub conditione contrahi videtur, i.e., it bad not the effect of making the sale conditional, but of making it conditionally dissoluble : 1 BeU Comm. 3rd ed. 289, n. (c) Abbott on Shipping, 9th ed. 418. (d) In case of a sale^of land, if the purchase-money is not paid, the Court of Chancery considers the purchaser as a trustee for the seller : Pollexfen v. Moore, 3 Atk. 272 ; and see Blackburn v. Qregson, 1 Brown's Chanc. Rep. 420. (c) Per Lord Henley, C, Amb. 399. NATURE OF THE RIGHT. 3 equitable privilege, it is now considered as a legal possessory right, exercisable for the purposes of justice ; and it is con- sequently favoured and encouraged by courts of law. This right of a vendor to resume possession of goods sold, while they are in their transit to the vendee has been established by distinguishing between the different forms of delivery, actual and constructive. The right of the vendor while the goods continue in his possession is that of lien ; but when the goods are in the possession of a carrier or middleman, to be delivered to the vendee, the right of the vendor is that of stoppage in transitu. The essential ground of the right of lien is possession ; that of stoppage in transitu is non-delivery to the vendee (/), " I state it to be a clear proposition," said Lord Loughborough {g), " that the vendor of goods not paid for, may retain the possession against the vendee, not by any aid of equity, but on grounds of law. Our oldest books QC) consider the payment of the price, day not being given, as a condition precedent, implied in the contract of sale ; and that the vendee cannot take the goods, nor sue for them, without tender of the price. If day has been given for payment, and the vendee can support an action of trover against the vendor, the price unpaid must be deducted from the damages, in the same manner as if he brought his action on the contract for the non-delivery. The sale is not executed before delivery; and in the simplicity of former times, a delivery into the actual possession of the vendee, or his sei-vant was always supposed. In the variety and extent of . dealing, which the increase of commerce has introduced, the delivery may be presumed from circumstances, so as to vest a property in the vendee. A destination of the goods by the vendor to the use of the vendee, — marking them or (/) Cross on Lieu, 3. (g) Mason v. Lickharrow, X H. Bl. 364. (h) See Hob. 41, and the Year Book there cited. 4 STOPPAGE IN TRANSITU. making tbem up to be delivered, or removing them for the pui-pose of being delivered, may all entitle the vendee to act as owner, to assign, and to maintain an action against a third person, into whose hands they have come. But the title of the vendor is never entirely divested, till the goods have come into the possession of the vendee. He has, therefore, a complete right, for just cause, to retract the intended delivery, and to stop the goods in transitu." We may consider that the right of stoppage in -transitu is founded on principles of natural justice and equity, as it is recognised and adopted by the general mercantile law of Europe and America. Formerly, by the law of France, in case of insolvency, " the seller who sold a thing and still lay out of the money which he was to have for it ; if he found the thing that he sold in the hands of the buyer, he might have seized on it, and he was not obliged to share it with the other creditors of the buyer-;'' this was called in French law " Revendication " (i). But the French legislators in con- structing the Code de Commerce, after some conflict, rejected the old law of Revendication, and adopted the principles of stoppage in transitu (k). (i) Domat'aCivil Law, book 4, tit. 5, sect. 2, art. 3. See also the notes of the same author on that article, and on hook 3, tit. 1, sect. 5, art. 3, where it appears that, by tiie custom of some parts of France, a person who has sold goods, expecting to be paid immediately, may, if he is not paid, retake the goods even out of the possession of a subsequent purchaser. {k) The grounds of this change are stated in an extract from the Expose des motifs d'une portion dii livre 3 du Code de Commerce pr^seute au Corps Legislatif ; McLachlan on Shipping, 506 : " Le titre 3 contient une innova- tion importante et m^rite par consequent de fixer votre attention. La reven- dication etait d'usage en France depuis longtemps, et cette faveur, accord^e au veudeur de r^prendre sa marchandise lorsqu'il pouvait en prouver 1' identity lorsqu'il la retrouvait sous balle, sous corde, et sans alteration, n'etait regime par aucune loi, et variait suivant les localit^s ; cet usage etait sujet perpetuel des plaintes des creanciers dans toutes les faillites ; ils supportaient avec peine ce privilege, et le regardaient comme une injustice. Les redacteurs du projet de Code avaient supprimd et interdit toute revendication. " Apris un examen approfondi, on a reconnu que I'usage de la revendica- tion etait une source de proc&s et un moyen de fraude, que la sagesse voudrait LAW OF FEANCE. 5 The law of France has undergone a revision since the first existence of the Code de Commerce, but the title " Eevendi- cation " still contains the leading principles of the doctrine of stoppage in transitu, nearly the same as regulate the exercise of this right hy the law of England (l). en vain regler un usage qui n'est fond^ ni sur le droit, ni sur I'gquit^j et que son plus grand inconvenient etait surtout de laisser, par ce privilege, le sort des cr&nciers k la merei de la volont^ du faUli qui pouvait a son gr^ favoriser I'un, sacrifier I'autre, en conservant ou en d^naturant les signes qui peuvent constater I'identit^, et en retardant ou accflerant la vente des effets qui lui auraient &t& livrfe. D'aprfes ces considerations, on s'est d&id^ k ne permettre la revendication que pour la marchandise en d^pSt pour celles qui sont en route, et qui n'ont pu encore Stre sujett^s 4 aucune confusion dans les maga- sins de I'acheteur : nous I'admettons encore pour les remises en effets non encore Melius, ou 6chus et non pay^s, si ces remises ont 6t6 faites avec le simple mandat d'en recouvrer et d'en garder la valeur k la disposition du pro- pri^taire." — Code de Commerce par Fa vard-de- Langlade, Paris, 1807-12, torn. 2, p. 109. (Z) The whole title is comprehended in the following extract : — "574. Pourront etre revendiqu^es, en cas de faillite, les remises en effets do commerce ou autres titres non encore payes, et qui se trouveront en nature dans le portefeuille du faUli k V dpoque de sa faUlite, lorsque ces remises auront ^te faites par le propri^taire,- avec le simple mandat d'en faire le recouvrement et d'en garder la valeur k sa disposition, ou lorsq' elles auront et6, de sa part, specialement affectees a des paiements determines. "575. Pourront Stre ^galement revendiqu^es, aussi long-temps qu' elles existeront en nature, en tout ou en partie, les marchandises consignees an failli k titre de d^pSt, ou pour Stre vendues pour le compte du proprii5taire. Pourra meme Stre revendique le prix ou la partie du prix desdites marchan- dises qui n'aura ete ni paye, ni regW en valeur, ni compens^ en compte- courant entre le failli et I'acheteur. "576. Pourront etre revendiqu^es les marchandises expedites au failli, tant que la tradition n'eu aura point ^te effectuee dans ses magasins, ou dans ceux du commissionaire chargd de les vendre pour le compte du failli. Nean- nioins la revendication ne sera pas reoevable si, avant leur arriv^e, les mar- chandises ont &te vendues sans fraude, sur factures et connaisements ou lettres de voiture sign^es par I'expediteur. Le revendiquant sera teuu de rem- bourser k la masse les k-comptes par lui regus, ainsi que toutes avances faites pour fret ou voiture, commission, assurances, ou autres frais, et de payer les somraes qui seraient dues pour memes causes. " 577. Pourront §tre retenues par le vendeur les marchandises par lui vendues, qui ne seront pas deiivrees au failli, ou qui n' auront pas encore 4t6 expedites, soit k lui, soit k un tiers pour son compte, " 578. Dans le cas pr^vu par les deux articles precedents, et sous I'au- torisation du juge-commissaire, les syndics auront la faculte d'exiger la 6 STOPPAGE IN TRANSITU. One article of the French Code is so just and equitable that it is worthy of adoption ; it provides that in the event of stoppage in transitu, the vendor shall be bound to reimburse the estate of the insolvent vendee for all advances made for freight or carriage, commission, insurance, or other charges, or to pay the sums due for such charges if they have not been paid. In Russia, the right is recognised and specially set forth in the Code of Mercantile and Navigation Laws of that empire, as is shown by the following opinion of the Judges of the Custom-house Court of St. Petersburg, read at the trial of the case of Bothlingh v. Inglis (m), — " By his Majesty's imperial ukase, and resolution of the Custom-house Court of St. Petersburg, this attestation is given to the St. Petersburg merchants of the first class, Bothlingk & Co., upon their request ; that concerning a suit at law carried on in London, with a London merchant. Crane, they wanted an attestation of the 138th section in the Mercantile Navigation Laws, and that this law is generally received and acted upon ; wherefore they demanded a testimony of this tenor, — that the seller or shipper of merchandise, if he have reason to suspect the circumstances of the purchaser or consignee, and being not yet paid for his merchandise, has a right by virtue of the said law to reclaim and take back this merchandise out of the ship in which it may be loaded, although the bills of lading were already transmitted, and without regarding that the ship has been chartered abroad or here, or out of the house, ware- house, or other place belonging to the purchaser ; and that the merchandise must be given back to the seller or shipper, livraison des marchaudises, en payant au vendeiu- le prix convemi entre lui et le failli. "579. Les syndics pourront, avec rapprobatiou du juge-commissaire, admettre les demandes en revendioation : s'il y a contestation, le tribunal prononoera, a,pres avoir entendu le juge-commissaire."— Code de Commerce, liv. 3, tit. 1, chap. 10. (m) 3 East, 386. LAWS OF RUSSIA AND HOLLAND, 7 and is not brought in concurs" And whereas it is ordered, in the above-mentioned Mercantile Navigation Laws, published the 2.5th June, 1781, in the 138th section, — " If in case of unpaid debts or bankruptcies, anybody has reason to suspect that the debtor or bankrupt has any thoughts of making the creditor lose, and therefore loadeth on board of ship or vessel goods or cargo ; in such a case the creditor is to give notice in town to the head judge of the court, and in districts to the chief, that the ship or vessel, or goods, or the whole cargo, should be retained time enough until the full payment is made to whom due. In consequence whereof, and by virtue of that law, if the seller or shipper, in case of bank- ruptcies, can identify that the merchandise belonging to him is in Russia, in ships, warehouses, or wherever they may be, in such a case the goods must be given back to the sellers or shippers, being their property, and cannot be brought in concurs — that' is, into the general mass of the buyer's effects to be distributed among his creditors." The right was proved to exist in Holland, in a case tried in 1789, by Lord Loughborough (ti). It appeared in evidence, that one Bowering had bought a cask of indigo of Verrulez & Co., at Amsterdam, which was sent from the warehouse of the seller, and shipped on board a vessel commanded by one Tulloch, by the appointment of Bowering. The bills of lading were made out and signed by Tulloch, to deliver to the order of Bowering, who immediately indorsed one of them to his correspondent in London, and sent it by post. Verrulez having information of Bowering's insolvency before the ship sailed from the Texel, summoned Tulloch, the shipmaster, before the Court at Amsterdam, and the Court ordered him to sign other bills of lading to the order of Verrulez. Upon the arrival of the ship in London, the shipmaster delivered the goods according to the last bills, to the order of Verrulez. (») Mentioned in the case of Mason v. Lickbarrow, 1 H. Bl. 364. 8 STOPPAGE IN TRANSITU. " This case, as to the practice of merchants, deserves," saya his lordship, " particular attention ; for the Judges of the Court at Amsterdam are merchants of the most extensive dealings, and they are assisted by very eminent lawyers." In America, likewise, the doctrine is fully established. Kent says (o) : — " The English law on the subject of this right, and the class of cases by which it is asserted and esta- blished, have been very generally recognised and adopted in our American courts." And in Scotland the principle is well known ; but it was formerly can-ied a good deal further by the doctrine of Restitution, which allowed the seller, . even after actual delivery, to resume possession of his goods, if unchanged in form, on the ground of presumptive fraud, within three days of the bankruptcy of the buyer. It was considered that the impending bankruptcy must have been known to the buyer, and that he was guilty of a fraud in not communicating it ; and this presumption threw the onus probandi on the buyer, or his creditors, to show perfect fair- ness in the bargain. The last case in which this doctrine was held, was decided in 1789, but on appeal to the House of Lords (p) it was rejected, and has since been entirely aban- doned ; and Bell says (q), " there can be no doubt that the doctrine of stoppage in transitu, as established in England, with all its modifications, so far as they are consistent with sound principle, is now held as the law of Scotland ; and the cases and authorities in the English law, with such dis- tinctions as necessarily arise from difference in the system on which this doctrine was grafted, are to be relied on as of the same'efficacy in Scotland as in England. The Court of Session has repeatedly acknowledged their authority, and permitted them to be quoted as precedents before them." This right may therefore be considered as part of the Law Merchant (o) 2 Comm. 716. (p) Allan V. Stein's Creditors, 23 Dec. 1790, 3 Paton, 196. (g) 1 Comm. 211. LAWS OF AMERICA AND SCOTLAND. D which prevails throughout the civilised world, and its mani- fest justice and utility has caused it to be established as part of the common law of England and Scotland, and to be recognised by the laws of the continental nations of Europe and America (r). The history of the doctrine of stoppage in transitu, so far as relates to its introduction as part of the law of England, has been ably stated by Lord Abinger in the case of Oihson V. Carruthers (s), which was decided in 1841. " Although," says his lordship, " the question of stoppage in transitu has been as frequently raised as any other mercantile question within the last hundred years, it must be owned that the principle on which it depends has never been either settled or stated in a satisfactory manner. In courts of equity it has been a received opinion that it was founded on some principle of common law. In courts of law it is just as much the practice to call it a principle of equity which the common law has adopted." The earliest instance of the recognition of this right in England occurred towards the end of the seventeenth cen- tury. This was in a court of equity, in the case of Wiseman V. Vandeput (t), which was a biU filed in Chancery for relief against a verdict obtained at law by the assignees of a bankrupt vendee, although the goods had been stopped before the ship sailed from the port of the vendor ; from this, therefore, it seems that the doctrine was not at that time recognised at law. The Court of Chancery, however, adopted it, and gave relief against the verdict at law, on the (r) Paterson, in his compendium of English and Scotch law, states that " the doctrine of stoppage in transitu, is not an exception to the general rule that the vendor's lien for the unpaid price is gone by the goods leaving his possession. Morton v. Ahereomby, 30 Sc. Jur. 193. For the general rule in the case of aU contracts is, that either party may withhold performance of his part of the contract, if the other party refuses to perform the corresponding ■part." (s) 8 M. & W. 337. (t) 2 Vern. 203. 10 STOPPAGE IN TRANSITU. ground that tlie goods were still the proper goods of the foreign merchant ; and that the vendee having paid no price for them, if the vendor could by any means get his goods again into his hands, or prevent their coming into the hands of the bankrupt, it was but lawful for him to do so, and very allowable in equity. The next case occurred in 1743, before Lord Hardwicke ; that was the case of Snee v. Prescott(u), in which it appeared that agents abroad, being in advance for their principal and doubtful of his circumstances, in consigning goods took the bills of lading to their own order indorsed in blank ; and it . was decided, that although these bills of lading should come into the possession of the principal, yet on his insolvency the goods might be stopped in transit^. Toilet, of London, had consigned certain goods to be sold or bartered by Ragueneau & Co., of Leghorn, who agi-eed that the goods should be disposed of for Italian silks, half to be paid in Toilet's goods, and the other half to be paid in money. They shipped the goods arid sent a bill of lading to Toilet, and he borrowed money on it and indorsed it by way of security. Toilet became bankrupt, and Ragueneau & Co. transmitted the bills of lading remaining in their hands to their agent in London, with an order on the captain for the delivery of the silks. The ship having arrived, the pledgees of the bill of lading claimed the goods, but the captain delivered them to the agent of Ragueneau & Co. The goods were also claimed by the assignees under the commission of bank- ruptcy. Lord Hardwicke, C. considered " it was as harsh a demand against Ragueneau & Co. as could possibly come into a court of equity, for the assignees to insist on taking, their goods for which they had paid half the price, without reimbursing them, but leaving them to come in as creditors for perhaps half .a crown in the pound only, under the (u) 1 Atk. 2i5. LAW OF ENGLAND. 11 commission of bankruptcy against Toilet, notwithstanding they had the goods then in their custody, and a specific lien upon them ; and that, in such a case, a court of equity would lay hold on anything to save this advantage to them. If Toilet the bankrupt had gained any legal property in the silks, it was gone by his pledge or pawn of the bill of lading, and if it had not been for the circumstance of the goods being so pledged, the assignees' bill ought to have been dis- missed with costs. For suppose such goods were actually delivered to a carrier to be delivered to A., and while the carrier is upon the road, and before actual delivery to A. by the carrier, the consignor, hearing that A. his consignee is likely to become a bankrupt, or is actually one, countermands the delivery, and gets them back into his own possession, no action of trover would lie for the assignees of A., because the goods, while they were in transitu, might be so counter- manded. In this case there was no consignment to any particular person ; the bills of lading, indorsed in blank to the order of the consignors, were only in the nature of an authority. The question of law was, whether before actual delivery of the goods, it was not in the power of the con- signors to countermand it ? This depended on the custom of merchants, upon which there was a contrariety of evidence, but the strongest proofs were in favour of the consignor's power of countermanding delivery. Though goods were even delivered to the principal, there was no substantial reason why the original proprietor, who never received a farthing, should be obliged to quit all claim to them, and come in as a creditor, perhaps only for a shilling in the pound, unless the law goes upon the general credit the bankrupt has gained by having them in his custody. But while goods remained in the hands of the original proprietor, there was no reason why he should not be said to have a lien iipon them till he is paid and reimbursed what he so advanced. Suppose Toilet had never assigned the goods, and the assignees under 12 STOPPAGE IX TRANSITU. the commission of bankruptcy had brought an action of trover in his right, and by strictness of law had recovered, the courts of law would not have suffered execution to be taken upon the whole goods ; but it would be directed, upon writ of inquiry, that out of the damages there should be deducted the half-price paid by Eagueneau & Co. for the silks ; d/ fortiori, this ought to be done in a court of equity. If the consignor's agent had got back the goods by any means, provided he did not steal them, he was not to be blamed, and to take them from him would be extremely inequitable." The judgment directed the Master to take an account of the money received by sale of the silks, and to charge Ragueneau & Co. with it ; that the produce of the sUk comprised in the pledges be applied in the first place to pay Ragueneau & Co. their advances, and the residue to go towards payment of the principal and interest due to the pledgees, who, if not fuUy paid, should come in as creditors under the commission of bankruptcy ; and any surplus, after payment of costs, should be paid to the assignees of the bankrupt for the creditors. The next case is that of Ex pwrte Wilkinson, in 1755 (x). Wine was consigned by a merchant at Lisbon to a merchant in London ; the consignee having become bankrupt, the agent of the consignor stopped the wine at Lynne ; and it was held that he was entitled to do so at any time before it got into the hands of the consignee. Lord Hardwicke said, that as there was no possession in -the bankrupt, no appearance of credit on the goods, nor any payment made, the agent had a right to stop them. From these cases it is clear that the doctrine had its origin in courts of equity, but it was soon adopted by courts of law, and numerous cases followed, which show that the right is now administered as part of the common law of England. (a;) Cited in D'Aguila v. Lambert, Amb. 399. ITS EQUITABLE ORIGIN. 13 Buller, J. (y), thus states the grounds on which this adoption is justified : — " I have always thought it highly injurious to the public that different rules should prevail in the different courts on the same mercantile case. My opinion has been uniform on that subject. It sometimes happens that, in questions of real property, courts of law find themselves fettered with rules from which they cannot depart, because they are fixed and established rules, though equity may interpose, not to contradict, but to correct the strict and rigid rules of the law. But in mercantile questions no distinction ought to prevail. The mercantile law of this country is founded on principles of equity ; and when once a rule is established in that court as a rule of property, it ought to be established in a court of law. For this reason, courts of law of late years, have s^id, that even where the action is founded on a tort, they would discover some mode of defeating the plaintiff, unless his action were also founded in equity; and that, though the property might on legal grounds be with the plaintiff, if there were any claim or charge by the defendant, they would not .consider the retain- ing of the goods as a conversion." (y) Tooke v. HolUngworfh, 5 T. R. 229. CHAPTER I: "WHO MAY VALIDLY EXERCISE THE RIGHT. In determining who may stop goods in transitu, the general rule is that the right belongs exclusively to the vendor, in respect of his original ownership and dominion (a). But there are cases in which the law has confirmed the exercise of this right, where the contract under which goods were consigned was not literally a contract of sale (&). It is sufiicient, that he who exercises the right to stop the goods stands substan- tially in the position of a vendor ; and this depends upon the evidence in each particular case. Thus, a person abroad who, in pursuance of orders sent by a merchant in this country> purchased goods on his o'wti credit, of others whose names were unknown to the merchant, and who charged the merchant a commission on the price, and consigned them to him, was held to be a vendor within the meaning of this rule. In Feise v. Wray (c), the facts were that Browne, a trader in London, gave an order to Fritzing, of Hamburgh, to purchase and ship for him a quantity of wax. Fritzing bought it accordingly in his own name, and ' on his own credit, of persons who were strangers to Browne ; there being no privity between Browne and those who sold to Fritzing. Fritzing shipped the wax on account and risk of Bi-owne, (a) Per Bayley, J., Bloxam v. Sanders, 4 B. & C. 948 ; per Parke, B. Edwards v. Brewer, 2 M. & W. 377. (J) Snee v. Prescott, l-'Atk. 245 ; D'Aguila v. Lmnh'ert, Amb. 399 ; Inglis V. Usherwood, 1 East, 615 ; Bothlingk v. Inglis, 3 East, 381. (c) 3 East, 93. RIGHT OF VENDOR. 15 and drew bills on him for the price, including his commission, and sent the invoice and bill of lading. On Browne becoming bankrupt, the defendant stopped the goods on behalf of Fritzing ; and the plaintiff, who was Browne's assignee, brought an action of trover against him, in which he con- tended that Fritzing was but an agent with a lien, and consequently that he could not stop the goods. The Court held that Fritzing was substantially the vendor. Grose, J. said, — "What is this but the plain and common case of the consignor of goods, who has not received payment for them, stopping them in transitu before they get to the hands of the consignee. Here Fritzing may in reality be considered as the vendor ; for the name of the original oAvner was never made known to the bankrupt. There was no privity between them ; but the goods were purchased, and the bills drawn, in Fritzing's own name ; and therefore he stands in the situation of vendor as to Browne. The defendant, acting under an authority from Fritzing, applied, upon the bankruptcy of Browne, for the purpose of getting security for the goods, and received the biU of lading from the bankrupt's brother, as he honestly might, and which the other acted honestly in giving up to him. Now this is the common case of consignor and consignee, where the former has not been paid for his goods, and he gets the bill of lading honestly into his possession, and stops the goods while they are in transitu. I am not satisfied that there is any distinction in law between the case of a vendor and a factor consigning goods ; but if there- be any such difference, Fritzing was, in regard to the bankrupt, the vendor in this case, particularly as the bills were drawn payable to himself" Lawrence, J., who was of the same opinion, said, — " It has been contended that the right of stopping in transitu does not attach between these parties ; that Browne must be considered as a principal for whom the goods were originally purchased, and that Fritzing was no more than his factor or agent, purchasing them on his 16 STOPPAGE IN TRANSITU. account ; and that the right of stopping in transitu does, in point of law, apply solely to the case of vendor and vendee. If that were so, it would nearly put an end to the application of that law in this countiy ; for I believe it happens, for the most pai-t, that orders come to the merchants here from their correspondents abroad to purchase and ship certain merchan- dise to them ; the merchants here, upon the authority of those orders, obtain the goods from those with whom they deal, and they charge a commission to their correspondents abroad, upon the price of the commodity thus obtained. It never was doubted but that the merchant here, if he heard of the failure of his correspondent abroad, might stop the goods in transitu. But at any rate, this is a case between vendor and vendee, for there is no privity between the original owner of the goods and the bankrupt ; but the property may be considered as having been first purchased by Fritzing, and again sold to Browne at the first price, with the addition of his commission upon it ; he then became the vendor as to Browne, and con- sequently had a right to stop the goods in transitu." Lord EUenborough, C. J. then said that, " having been engaged in the cause, he had not taken part in the discussion, but he entirely concurred in the opinions delivered by the other judges. It was substantially the case of a vendor, only adding to the original price of the goods the amount of his commission" (d). An agent who purchases goods in his own name is in the position of vendor, and has the rights of a vendor, including that of stoppage in transitu. In Hawhes v. Dunn (e), where goods were furnished to the agent of a bankrupt, on the agent's credit, it was held, that , (d) See Tucker v. Humphrey, i Bing. 516 ; Patten v. Thompson, 5 M. & S. S50 ; Ogle v. Atkinson, 5 Taun. 759 ; Turner v. The Tntstees of the Liver- pool Docks, 6 Exch. 543 : 20 L. J. Ex. 393 ; EUershaw v. Magniac, 6 Exch. 570, n. ie) 1 Tyr. 413. RIGHT OF AGENT. 17 he might, to protect himself, stop them in transitu, and give them a new direction adverse to his principal, but if he give them a fresh destination, in furtherance of the usual course of business of the principal, they pass to the assignees as in the order and disposition of the bankrupt. But the agent must pay for the goods, and not leave any liability for payment on the part of his principals, otherwise he is not entitled to stop in transitu. In Oahfordr. Drake (/), the plaintiff, broker for the defendants, having bought cotton in his own name, to be consigned to them for sale, on an undertaking on their behalf by their agent, that he would make advances to meet the plaintiff's bills for^the price, to be drawn on certain parties through whom he consigned the cotton to the defendants; and these parties having failed after the shipment of the cotton and before the payment of the bills ; it was held, at l^isi Prius, by Cockburn, C. J. that the question was, whether the defendants' agent had in fact made the advances honA fide, and that if he had, and had not undertaken to see that the cotton was paid for, the plaintiff, though entitled to all the rights of a vendor, could not stop in transitu, nor recover the value of the cotton from the defendants. The case of Siffken v. Wray (g) shows that a surety for the price of goods has not a i-ight to stop them in transitu, for there exists no primary liability for the piice of the goods, so as to constitute the relation of vendor and vendee. Browne, of London, had oi'dered Dubois & Co., of Dantzic, to ship for him a quantity of corn and desired them to draw for the piice partly on his correspondent, Fritzing. The corn was shipped and drafts accepted accordingly. Dubois & Co. sent to Fritzing two bills of lading, indorsed in blank ; Fritzing forwarded them to Browne, who received them after (/) 2 F. & F. 493, {g) 6 East, 371. 18 STOPPAGE IN TRANSITU. he had become bankrupt. The bills of lading were then delivered by Browne to the defendant, as agent for Fritzing, who exercised the right of stoppage in transitu, and got pos- session of the com and sold it. The question 'was, whether Browne's assignees were entitled to recover 1 The Court of King's Bench held that they were. Lord IJUenborough said, — " Wray had no authority from Fiitzing, for Fritzing himself had no right to stop the goods in transitu. His situation in this transaction was very different from that in Feise v. Wray (h) ; there he was liable in the first instance for the price of the goods, and therefore the Court considered him as a vendor quoad the bankrupt to whom he had shipped them." The judgment of the Court therefore was, first, that Fritzing had no right to stop the goods in transitu, he being no more than a surety for the price, and not vendor or consignor ; secondly, that one who was general agent of Fritzing in London, having obtained the bills of lading from the bankrupt, after his bankruptcy, upon an agreement, when the goods arrived, to dispose of them, and to apply the net proceeds to the discharge of such bills as had been drawn against the goods, had no authority to retain the proceeds against the assignees of Browne the bankrupt, either in respect of Fritzing, or in respect of a stopping in transitu on behalf of Dubois & Co., the shippers, who, after his possession of them and after trover commenced by Browne's assignees for the value, sent a letter to him, approving of his having obtained possession of the bills of lading and the goods ; for at any rate there was no adverse stopping in transitu, but the goods were obtained by agreement with the vendee after his bankruptcy, even if the defendant could be considered as agent for the shippers at the time by relation (i). A person who has a mere lien on goods, if he parts (h) Ante, p. 14. (i) See GurTiey v. Behrmd, 3 E. & B. 622 ; 23 L. J. Q. B. 265 ; Pennell V. Alexander, 3 E. & B. 283 ; 23 L. J. Q. B. 171. RIGHT OF CONSIGNOR. 19 with the possession of them, cannot recover his lion by- stopping the goods in transitu. Thus, in Sweet v. Pym (k), Gard, a clothier, employed the defendant, a fuller, who as such had a general lien on the clothes of his customers. The defendant shipped some clothes on which he had this lien on board a vessel, by the directions of Gard, his customer, who at the time was indebted to the defendant in more money than the value of the goods in question. No bill of lading was signed by the captain at the time of the ship- ment ; but soon after the vessel sailed, the defendant, hearing of Gard's bankruptcy, followed and overtook the captain in his passage, and succeeded in obtaining from him a bill of lading to the defendant, or his order ; by virtue of which h6 obtained delivery pf the goods on the arrival of the vessel. The assignees of the bankrupt recovered a verdict in trover under thg direction of Lord Eldon, he being of opinion that no person having a lien on goods, if he part with the pos- session, has the right afterwards to stop them in transitu, and thereby revive his lien against the owner. The Court of King's Bench confirmed this view, and Lord Kenyon, C. J. said, — " The right of lien has never been carried further than while the goods continue in the possession of the party claiming it. Here the goods were shipped by the order and on account of the bankrupt, and he was to pay the expense of the carriage of them, the custody therefore was changed by the delivery to the captain " (I). A principal who consigns goods to his factor may stop them on hearing of the factor's insolvency, even though the factor may have accepted bills or advanced money on the faith of the consignment ; for a factor has no lien on goods for a general balance, unless they come into his actual pos-, {k) 1 East, 4. (Z) NiehoUs v. Le Feuvre, 2 Bing. N. 0. 83 ; Zeiwhhart v. Cooper, 3 Bing. N. C. 99 ; MorUy v. Hay, 3 Man. & Ey. 396 ; Freeman v. Birdi, 3 Q. B. 492, n. c 2 20 STOPPAGE IN TRANSITU. session. In Kinloch v. Craig (m), it appeared that Sandeman & Graham, as factors for Stein, were under large accept- ances on the credit of consignments to be made ; and while one consignment was on the way, the factors failed, having previously received the bill of lading and invoice. When the vessel arrived, they did not take delivery ; and Stein also having become bankrupt, the trustee on his estate under a Scotch sequestration, received possession of the consignment and sold it. An action was brought for payment of the proceeds to Sandeman & Graham's estate ; and it was decided, that the only right to which the factors could lay claim was a lien ; but lien required possession to enforce it, and the goods had never reached the possession of the factors, and therefore the right of property remained in the consignor, who was entitled to stop the goods in transitu (n). The same principles are applicable when a party remits money on a particular account, or for a particular purpose. If the consignee should become insolvent, or unable to execute the order, the payment of the money may be stopped ; but it is otherwise in the case of a general remittance from a debtor to his creditor on account of his debt (o). The right may be exercised by a consignor of goods for sale on joint account of himself and the consignee. In J!^ew- som v. Thornton (p), where goods were so shipped, and a bill of lading was sent to deliver the goods to the consignee or his assigns; and the consignee afterwards indorsed and deUvered it to the defendant upon condition of his making an advance on it, which he failed to do, but claimed to retain it as security for prior advances ; the Court of King's Bench held that such indorsement and delivery of the bill of lading (m) 3 T. E. 119. (n) See Wright v. Campbell, 4 Burr. 2047. (o) Smith V. Bowles, 2 Esp. 578. {p) 6 East, 17. EIGHT OF ALIEN ENEMY. 21 did not divest the consignor's right to stop the goods in transitu upon the insolvency of the consignee. But if a consignor indorse and transmit bills of lading for goods shipped in terms of an agreement, in trust to secure payment of bills discounted on the faith of such consignment, he cannot stop delivery and resume possession of the goods while the trust and object of the consignment remain un- satisfied. In Haille v. Smith (q), Brown, of Liverpool, wishing to draw upon the banking-house of Smith & Co., of London, to a large amount, agreed, among other securities given, to consign goods to a mercantile house, consisting of the same partners as the banking-house, though under a different firm ; the cargo was shipped accordingly, and invoice and bill of lading indorsed in blank to the mercantile house. Brown became bankrupt, and his assignees stopped the goods, and received delivery from the captain of the vessel. It was held that Smith & Co. might maintain trover against the captain. Even an alien enemy who, under a British licence, had shipped a cargo to a British merchant, has been allowed to exercise the right, and to employ an agent here for that pur- pose. In Fenton v. Pearson (r), it was held that a trading licence from the Crown to British merchants to send a ship in ballast to an enemy's port, there to receive and load a cargo, and import it into this country, as it legalises the purchase by the subject, so it legalises the sale by the enemy, and impliedly legalises the vendor's right to stop the goods in transitu after their arrival in port here, upon the inter- mediate insolvency of the vendees, and also to employ an agent here for that purpose ; and such agent having possessed himself of the goods, the assignees of the bankrupt vendees cannot recover from him the value of them in trover. In delivering judgment. Lord EUenborough said, — " The Crown does not give any man a roving commission to steal from or (y) 1 B. & P. 563. (r) 15 East, 419. 22 STOPPAGE IN TRANSITU. defraud even its enemies of their property ; if it authoiise a subject to buy goods from an enemy, it must be taken to authorise the enemy to sell them. The alien enemy, there- fore, has a right to stand in Court as defending a legal contract for the sale of his goods, authorised by the king's licence, with the power incident to such contract ; and I should be ashamed to be the subject of a country which should be so base as to hold out a lure to aliens to sell their property to its own subjects, and tlien enable the vendees, as soon as the property was thus brought within their grasp, to seize and apply it to their own use, without paying the owners for it." A person to whom a bond fide transfer of a bill of lading has been made may stop the goods in transitu. In Morison V. Gray (s), the vendor having ascertained, whilst the goods were in the possession of a wharfinger, that the vendee to whom they had been originally consigned had stopped pay- ment, indorsed the bill of lading to the plaintiff, and directed him to take possession of the goods, and he accordingly de- manded them of the wharfinger ; it was held that the plaintiff had a sufficient special property in the goods to enable him to maintain trover, on the ground that the right of stoppage in transitu by the vendor was not at an end when the plaintiff made the demand. A person who has only an interest in, and a right to receive, a certain portion of the cargo, although he does not hold a bill of lading, may also exercise the right. In Jenkyns v. Usbome (t), J. & T. Lloyd, of Leghorn, shipped, pursuant to an order from Hunter & Co., merchants, in London, a cargo of beans in sacks, per the ship " Agnes." Advice of the shipment was sent by J. & T. Lloyd to Hunter & Co^ through the plaintiff, together with an invoice and a bill of lading for 3,932 sacks of beans, making the same deliverable (s) 2 Bing. 260 ; 9 Moore, 484, S. C. But see Wariiirj v. Cox, 1 Camp. 369. {t) 8 Scott, N. K. 505 ; 13 L. J. C. P. 196 ; 7 M. & G. 678. ASSIGNEE OF PART CARGO. 23 to the order of the shippers, and by them indorsed in blank, and also two bills of exchange drawn by them upon Hunter & Co, the one for 5S91. 9s. Id., and the other for 317?. 14s. 6d. The shipment exceeded the order given by Hunter & Co. by the amount of the lesser bill. The plaintiff, who was the London agent of J. & T. Lloyd, called upon Hunter & Co. to accept the bills, but they accepted only the larger bill, giving the plaintiff a letter acknowledging to be his a pro- portion of the cargo equal in value to the lesser bill, which the plaintiff had accepted and paid at maturity, and at the same time a delivery order addressed to the captain of the " Agnes," requesting him to deliver to the bearer 1,442 sacks of beans ex "Agnes." The plaintiff thereupon handed the bill of lading of the whole cargo to Hunter & Co. Before the arrival of the beans the plaintiff sold the 1,442 sacks to one Thomas, to whom he gave Hunter & Co.'s letter and delivery order. Thomas afterwards obtained from the defendant an advance of 1,000?. upon the security of two bills of lading of two cargoes of oats, and the letter and delivery order for the beans signed by Hunter & Co., at the same time explaining to the defendant that Hunter & Co. held the bill of lading for the entire cargo of the beans. Before the arrival of the "AgneSy" and before Thomas's acceptance became due, he stopped payment, and a fiat of bankruptcy afterwards issued against him. On the arrival of the "Agnes," the plaintiff gave notice to the captain not to deliver the beans to the order of Hunter & Co. That portion of the cargo which belonged to Hunter & Co. was delivered to them; the remainder was delivered to the defendant under an indemnity^ Hunter & Co. having, after receipt of their portion of the beans, indorsed on the bill of lading the following memoran- dum — " the remainder is to be delivered to the holder of an order for 1,442 sacks of beans, signed by us, and dated London, 1841." After the delivery to Hunter & Co. of their portion of the cargo, and before the delivery of the residue to the 24 STOPPAGE IN TRANSITU. defendant, the plaintiff again demanded such residue of the captain, tendering' him the freight and charges due in respect thereof. It was held in this case, that on the delivery to Htmter & Co. of their share of the beans, the property in the residue of the cargo vested in the plaintiff, who was entitled to maintain trover for its subsequent conversion, provided he had the right to stop the beans in transitu, and had duly- exercised that right ; and that under the circumstances above disclosed he had such right, and had duly exercised it, though at the time of the stoppage the property had not vested in him, but only an interest in and right to receive a certain portion of the cargo, to be afterwards ascertained. It was also held that the agreement between the plaintiff and Thomas, coupled with the delivery order signed by the indorsers of the bill of lading,' and the subsequent transfer of the rights of Thomas to the defendant for a valuable con- sideration, did not put an end to the right of stoppage in transitu. Tindal, C. J., in giving judgment, said, — " 'We see no sound distinction with reference to the right of stoppage' in transitu, between the sale of goods the property of which is in the vendor, and the sale of an interest which he has in a contract for the delivery of goods to him ; if he may rescind the contract in the one case, for the insolvency of the pur- chaser, he must, by parity of reasoning, have the right to rescind it in the other." 'Where the stoppage is effected by a person who has at the time no. authority, a ratification of his acts by the consignor made after the transitus is ended comes too late ; for the ratification must be made while the transit continues, and under circumstances in which the ratifying party might him- self have lawfully done the act which he ratifies. This was decided in Bvrd v. Brown (u). In that case, Carne & Telo, merchants, at Liverpool, sent orders to lUins, a merchant, at (m) 4 Exoh. 786 j U Jur. 132 ; 19 L. J. Exch. 154. BY PERSON WITHOUT AUTHORITY. 25 New York, to purchase for them certain goods, which were accordingly shipped by Illins in five vessels bound to Liver- pool, and consigned to Carne & Telo, who, after the receipt of the goods by one of the vessels, stopped payment on the 7th of April, 1846. Illins had drawn bills for the goods, partly on Carne & Telo, and partly on Kichards, Little, & Co., with whom Carne & Telo had dealings. Brown, Shipley, & Co., merchants, in Liverpool, who also had a house of business at New York, purchased there several of the bills, which were drawn at sixty days' sight, and were dated, some on the 28th of March, and the rest on the 30th. On the 8th of May a fiat of bankruptcy issued against Carne & Telo. The other four vessels arrived at Livei-pool on the 3rd, 5th, 6th, and 9th of May, respectively, and immediately on the arrival of each, and whilst the transitus of the goods on board continued. Brown, Shipley, & Co., on behalf of Illins, gave notice to the master and consignees of each ship, claiming to stop the goods in transitu. Brown, Shipley, & Co., were not the general agents of Illins, nor had they received from him any authority to make this stoppage. On the 11th of May, the assignees of Carne & Telo made a formal demand of the goods from the master and consignees of each of the four ships, at the same time tendering the freight ; but they refused to deliver them, and on the same day delivered the whole to Brown, Shipley, & Co. On the next day the assignees made a formal demand of the goods from Brown, Shipley, & Co., but they refused to deliver them up, claiming title under the stoppage in transitu. On the 28th of April, Illins heard at New York that Came & Telo had stopped payment ; and on the. next day he executed a power of attorney to Hubback, of Liverpool, authorising him to stop the goods in transitu. This was received by Hub- back on the 13th of May, and he on that day adopted and confirmed the previous stoppage by Brown, Shipley, & Co. Illins afterwards adopted and ratified all that had been done 26 STOPPAGE IN TRANSITU. both by Hubback and Brown, Shipley, & Co. In trover by the assignees of Came & Telo against Brown, Shipley, & Co., it was held, first, that there could be no valid stoppage in transitu after the formal demand of the goods by the assignees on the 11th of May, and the subsequent delivery of them to the defendants ; secondly, that the ratification of the stoppages by Illins, after the conversion by the defendants, had not the effect of altering retrospectively the ownership of the goods, which had already vested in the plaintiffs. But where the right is exercised by the general agent of the vendor, without any specific authority for that purpose, a ratification of the act of the agent by the vendor after the transitus is ended, constitutes a valid and effectual stoppage in transitu. In Hutchings v. Nunes (x), the vendee, a mer- chant, at Kingston, in Jamaica, ordered from the vendors, merchants, at Baltimore, in America, goods to be shipped to him at his risk and expense. The goods were shipped, but while they were on the voyage, a fiat of insolvency was issued against the vendee, and the appellant was appointed official assignee. The vendors, however, were previously advised of the vendee's failure by a letter from a firm in Jamaica, and by a letter from the vendee himself, who, at the same time, informed them that he had handed the goods to one of the respondents as agent for the vendors, for whose firm the respondent had previously acted as agent and transacted some business. On the letters reaching the vendors, they executed and sent a letter and a power of attorney to the respondent to do and transact on their behalf whatever was necessary for their interests in the matter of the consign- ment of the goods. The power was not received by the respondent till some days after the arrival of the vessel containing the goods ; but immediately on receipt of the power, the respondent demanded and obtained possession of (x) 1 Moo. P. C. N. S. 243. BY GENERAL AGENT. 27 the goods on behalf of the vendors, and he afterwards disposed of them. An action of trover having been brought by the appellant, the official assignee, against the respon- dents, the agent's firm, for the value of the goods, it was held by the Judicial Committee, affirming the judgment of the Court below, that the respondent being by the evidence sufficiently proved to have been the agent of the vendors before the insolvency of the vendee, the possession of the cargo taken by the agent was an effectual stoppage in transitu on behalf of the vendors. It was held also that the letter and power of attorney sent by the vendors, though not received till after the stoppage of the goods, ratified and confirmed the act of the respondent as the vendors' agent. In order to constitute a valid right to the exercise of stoppage in transitu, the debt, in respect of which the power is claimed, must be subsisting, though the precise amount may not have been ascertained. A merchant in England sent goods to a merchant at Quebec for sale on his account. Before the goods were sold or the proceeds ascertained, the latter shipped three cargoes of timber to the former to credit in account ; two of them amved ; against the third the con- signor drew a bill for the amount whilst it was in transitu ; in the interval the consignee dishonoured the bill and became insolvent {y) : it was held that the consignor had a perfect right of stoppage in transitu, and was not bound to wait until their mutual accounts were finally adjusted. But the right to stop may often depend on the state of accounts between the parties at the time when the bill of lading is indorsed by the consignor, and his right may be suspended until the acceptances for which he has taken credit in account have been paid. In Vertue v. Jeiuell (z), A. being indebted to B. on the balance of accounts, including bills still running accepted by B. for A,, consigned goods to B. on « (y) Wood V. Jones, 7 D, & K. 126. (») i Camp. 31. 28 STOPPAGE IN TRANSITU. account of this balance ; and Lord Ellenborough held that A, had no right to stop the goods in transitu upon B. becoming insolvent, before the bills were paid. A composition taken by the vendor for the price of goods undelivered operates as an abandonment of the right of stoppage in transitu, and the vendor is bound to deliver the goods on receiving payment of such composition. In Nichols V. Hart (a), a wine merchant sold a butt of wine, which was not delivered. The vendee compounded with his creditors, and the amount of the wine was, by the vendor's consent, included in the composition, which was secured by bills. The vendor had a claim against the vendee beyond the price of the wine. Before the whole composition was paid, the vendee demanded the wine, but the vendor refused to deliver it. However, the Court held that he was bound to deliver it, as he. had undertaken to do so, and that the doctrine of stoppage in transitu did not apply under the circumstances. (a) 5 C. & P. 179. CHAPTER II. UNDER "WHAT CIRCUMSTANCES THE RIGHT ARISES. As the right of stopping in transitu exists for the purpose of enforcing payment of the price, there are two circum- stances which must concur in order to entitle the vendor to exercise this' right ; — it is competent only whilst the vendor is wholly or partially unpaid ; and the vendee must have become insolvent or bankrupt, or failed in his circumstances, so as to be unable to perform his part of the contract, which is the counterpart of the delivery of the goods. Section I. — Vendor unpaid. Although the right of stoppage could not be questioned in cases where the vendor was wholly unpaid, yet it was at one time doubted whether payment of part of the price was sufficient to take away the right. It has been decided, how- ever, that a partial pa3Tnent of the goods by the vendee does not affect the vendor's right to stop them in transitu. In the case of Hodgson v. Loy (a), it was contended that there could be no stoppage when there had been a part payment, at least without an offer to return the price actually paid ; and that, as the contract was entire, there could be no apportionment, but the partial payment must attach to the whole. The (a) 7 T. R. 440. 30 STOPPAGE IN TRANSITU. facts in that case were, — Ward, who afterwards became bank- rupt, had purchased of one Cooper a quantity of butter. He paid BOl, consented to discharge a debt of 20?., and gave a bill for lOOZ. : in all, being 150?. on account. After Ward's bankruptcy, the defendant, who was Cooper's agent, stopped the goods in the hands of the carrier. Cooper afterwards tendered the assignees of the bankrupt the bill dishonoured and the 30Z. The action was in trover by the assignees. Lord Kenyon said, — " Respecting the payment, he did not think that this took the case out of the general rule, and he should be sorry to let in such an exception, because it would destroy the rule itself ; since every payment, however small, even the payment of a farthing by way of earnest, would, if such an exception were introduced, prevent the operation of the general rule of stopping in transitu." This case was recognised in Feise v. Wray (b), where Lord Ellenborough observed, — " The case of Hodgson v. Ley showed that a part payment did not destroy the vendor's right of stopping in transitu ; it only reduced his equitable lien pro tanto when he got the goods into his possession (c). Where the vendor has received bills of exchange or other securities for the whole price, he may stop the goods on the insolvency of the vendee, even though the bills may have been negotiated, and are still outstanding and not yet due ; and such acceptances are proveable under the commission of bankruptcy, and amount only to part payment of the goods. In Feise v. Wray (d), a bill had been accepted, and was in- dorsed, and being in the indorsee's hands, he could prove on the vendee's estate as a creditor-; yet the stoppage was held good, Lawrence, J. saying, that the right of the holder of the (i) 3 East, 93. (c) See Van Casteel v. Mowker, 18 L. J. Ex. 19; 2 Exch. 702, per Parke, B. (d) 3 East, 93. UNPAID VENDOR. 31 bills to prove under the commission could have the effect of part payment only. In Patten v. Thompson (e), where the plaintiffs had drawn on the vendee for the price, and held his acceptances, which were not due at the time they stopped the goods, the stoppage was held good. And in Edwards v. Brewer (/), it was decided that a consignor of goods who has received the acceptance of the consignee for part of the goods, might stop them in transitu on the consignee's insol- vency, and retain possession of them, without tendering back the bill. But in Cowasjee v. Thompson (g), where the vendor had the option of taking payment by bill at six months, or in cash less discount, and he elected to take the bill, he was held to have waived the right of stoppage in transitu. As the right of stoppage exists where bills are given for the price of the goods, d fortiori it exists where goods are sold on credit, which had not expired at the time of the stoppage, so that the price was not then due. In Inglis v. Usher- wood (h), and Bothlingk v. Inglis (i), it appeared that a cargo of goods was shipped on board a vessel chartered by the bankrupt, and according to the terms of the contract the goods were to be drawn for a month after shipment. Stop- page in transitu was held good, although made before the lapse of the month. In Davis v. Reynolds (k), Lord Ellenborough decided that if the purchaser of goods to be paid by bill, after giving his acceptance, during the time of credit, and while the goods are in transitu, should sell them to a third person for a valuable consideration, without trans- ferring any bill of lading to him, the right of the original vendor to stop the goods in transitu is taken away. This decision seems to conflict with all the other cases on the point ; and it may be accounted for by the fact that the (e) 5 M. & S. 350. ih) 1 East, 615. (/) 2 M. & W. 375. (i) 3 East, 381. (g) 5 Moore, P. C. 165. {!c) 4 Camp. 267. 32 STOPPAGE IN TRANSIl'U. plaintiff's counsel, in opening the case, proposed to produce a bill of lading, and to show that it had been indorsed to the plaintiff before the insolvency ; but as it was unstamped it could not be received in evidence. The case of Diocon v. Yates (I) decides that the taking of the insolvent's acceptances by the vendor, has no effect on the vendor's rights as against a sub-vendee, who has not received an indorsed bill of lading, after the acceptances are dishonoured. This right of the vendor does not exist where payment is properly made to his agent, although the agent never pays over the money to the vendor. In Bunney v. Poyntz (m), the agent of the vendor took, in payment of some hay sold for his principal, a promissory note, negotiated it and em- bezzled the money ; the note was afterwards dishonoured. The Court held that the vendor was to be considered as having been paid for the hay by reason of his agent having taken the vendee's promissory note, and discounted it, and it being outstanding in the hands of the party claiming the hay. And if the state of the accounts between the parties be such that on the whole, including bills of exchange not yet at maturity, the vendor is indebted to the vendee, he cannot, on the insolvency of the vendee, stop in transitu property of less value consigned to the vendee, on account of the balance. This was decided in the case of Vertue v. Jewell (n), which was an action of trover for 180 quarters of barley. It appeared that on the 30th of November, 1813, this barley was shipped at Yarmouth, by Daniel Bloom, on board the ship "Dolphin," of which the defendant was master. The bill of .lading made the barley deliverable in the port of London, to the order of the shipper, and was indorsed by him to Burrowes & Winn, corn factors and corn merchants in the city. They received the bill of lading on the 4th of (?) 5 B. & Ad. 345. (m) 4 B. & Ad. 568. (») i Camp. 31. EFFECT OF MUTUAL ACCOUNTS. 33 December. In the month of October preceding, J. W. Ayres, for their accommodation, had accepted a bill for 350^., which was to become due in nine days, and they owed him several hundred pounds besides on another account. They had then, to the knowledge of Ayres, become much embarrassed in their affairs, and unable to provide for the bill of exchange. They, therefore, for the purpose of covering him, of their own accord proposed to indorse to him the bill of lading for the barley. They accordingly did so on the 6th of December, and made out a regular sale note to him. On the same day, they stopped pa3maent. Ayres immediately afterwards in- dorsed the bill of lading, and made out a similar note to the plaintiffs. The bill of exchange for 350^., which Burrowes & Winn had negotiated, he paid regularly when it became due. The "Dolphin" arrived in the river Thames on the 17th of December, and the barley being then demanded by the plaintiffs, the defendant refused to deliver it, having had an indemnity from Bloom, the consignor. At the time it was shipped and from thence, till the indorsement of the bill of lading by Burrowes & Winn, Bloom was indebted to Burrowes & Winn upon the balance of accounts, including bills of exchange then running, which they accepted for him to the amount of 590^., being considerably more than the value of the barley, and it was on account of this balance that the barley was consigned to them. The bills so accepted were never paid by Burrowes & Winn, who became bankrupt in the end of December, and were then indebted to Bloom above 2,000Z. Lord Ellenborough ruled that, " under these circumstances Bloom had no right to stop in transitu. The barley being consigned to BuiTOwes & Winn on account of the balance which then existed in their favour, the property vested in them absolutely. The transfer from them to Ayres would not have' defeated the right to stop in transitu. If the consignee does indorse the bill of lading for a valuable consi- deration to a bond fide purchaser without notice, the right to 34 STOPPAGE IN TRANSITU. stop in transitu is gone as against the indorsee, although it would have remained in force as against the consignee, had the bill of lading not been indorsed. But Ayres here had notice of the insolvency of Burrowes & Winn ; and if against them thei-e existed any right to stop in transitu, he could not claim the barley. The circumstance, however, of Bloom being indebted to them on the balance of accounts divested him of .all control over the barley from the moment of shipment. The non-payment of the bills of exchange cannot be considered. The rights of the parties must depend upon the state of things when the- bill of lading was signed and indorsed." The Court afterwards refused a rule to show cause why the verdict should not be set aside, observing that under the circumstances Burrowes & Winn were to be con- sidered the purchasers of the goods for a valuable con- sideration (o). The validity of a stoppage in transitu depends' upon certain conditions : first, the vendor must be unpaid ; secondly, the vendee must be insolvent ; thirdly, the vendee must not have indorsed over without value. But the proof that these con- ditions have been fulfilled would always be difficult for the vendor — often impossible ; for instance, whether the vendor is or is not unpaid may depend upon the balance of a current account ; whether the vendee is insolvent may not transpire till afterwards, when the bill of exchange for the goods becomes due, for the right to stop does not require the vendee to have been found insolvent. And lastly, whether the vendee has or has not indorsed the bill of lading over, is a matter not within the cognisance of the vendor. He exercises his right of stoppage in transitu at his own peril, and it i's incumbent upon the master of a ship 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 (p). Such (o) See ffaiUe v. Smith, 1 B. & P. 563. (p) The Tigress, 32 L. J. Adm. 97. INSOLVENCY OF VENDEE. 35 was the law as laid down by Lord Campbell in Gurney v. Behrend (g), where he says — " Primd facie the defendants had a right to stop the wheat, for it was still in transitu, and they were unpaid vendors. The onus is on the plaintiffs to prove that they had become the owners, and that the right to stop in transitu was gone." Section II. — Insolvency of Vendee. The right of stoppage in transitu does not exist except in the event of the insolvency of the vendee ; the mere fact of the vendee having failed to perform his contract is not sufficient to allow the vendor to exercise this right, as perfor- mance is not of the nature of a condition precedent. So, if goods be sent by order of the consignee, on his account and at his risk, and the consignor draw bills of exchange upon him for the price, and indorse and transmit the bills of lading, the consignor cannot take possession of the goods at the place of destination, and insist upon immediate payment as the condition of delivering them, the consignee being willing to accept the bills, and not having failed in his cir- cumstances (r) ; but the consignor's right to stop the goods in transitu still subsists in the event of the insolvency of the consignee. Lord Ellenborough, at the trial of this case, thought that the consignment was, from the first, conditional, and nonsuited the plaintiff ; but on its being shown that the consignment was not conditional, the nonsuit was set aside. Wilmhurst v. Bowker (s) was an action for a wrongful stoppage in, transitu. The defendant sold to the plaintiff wheat, for which the plaintiff was to pay by a draft on a London banker. The defendant shipped the wheat on (?) 3 E. & B. 622. (r) WalUy v. Montgomery, 3 East, 585. («) 7 M. & Gr. 882. B 2 36 STOPPAGE IN TRANSITU. account and at the risk of the plaintiff, and sent him the bill of lading and invoice. The plaintiff, who was not insolvent, did not punctually remit the banker's draft, whereupon the defendant assumed a right to revoke and rescind the sale, and caused the wheat to be stopped in its passage to the plaintiff. The Court of Exchequer Chamber held, reversing the judgment of the Court of Common Pleas, that, by the delivery of the wheat to the master of the vessel for the account and at the risk of the plaintiff, and by the transmission of the indorsed bill of lading, the defendant had so parted with the property and, right of possession as not to be en- titled to intercept the delivery. In the case of the CorCstantia (t), Sir William Scott de- cided that where the vendor had acted under a mistaken apprehension as to the insolvency of the vendee, the stoppage was not valid. The question arose respecting the property of some brandy, which had been shipped at Cette, for the account and risk of Kye, of Copenhagen, but which was afterwards, when on board, countermanded by an indorse- ment on the biU of lading, accompanied by corresponding instructions given to the master by the shipper, under an erroneous information received of the insolvency of the consignee. In giving judgment. Sir William Scott said, — " I am clearly of opinion that if Kye had been an insolvent person, the stoppage would have amounted to a complete and effective revendication of the goods. But if the person to whom they are consigned is not insolvent ; if, from misin- formation, or from excess of caution, the vendor has exercised his privilege prematurely, he has assumed a right which did not belong to him, and the consignee will be entitled to-the delivery of the goods, with an indemnification for the expenses that may have been incurred. In the law of England, as far as I can collect it, and in all books into which I have looked, {i) 6 Kob. 321. WHEX VEXDEE I>SOLVEyT. 37 it is not an unlimited power that is vested in the consignor, to vary the consignment at his pleasure in all cases whatever. It is a privilege allowed to the vendor, for the particular purpose of protecting him against the insolvency of the consignee. Certainly it is not necessary that the vendee should be actually insolvent at the time. If the insolvency happens before the arrival, it woidd be sufficient, I conceive, to justify what has been done, and to entitle the vendor to the benefit of his own provisional caution. But if the vendee is not insolvent, the ground is not laid on which alone such a privilege is founded. Then, if Kye has proved insolvent, the vendor wiU have exercised his privilege ; but if he is not insolvent, and has actually provided for the payment of the goods, he will be entitled to the delivery, unless it can be shown that the right of the vendor extends further than I have stated it, and that it amounts to an unlimited right to vary the consignment at pleasure. Where goods are shipped without orders, such a right exists. The vendor, if he may be so described, retains an absolute power over them, for there is no purchase. But when orders have been received and executed, and delivery has been made to the master of the ship, and bills of lading signed, the vendor is functus officio, except in the peculiar case in which he is again reinstated by the privileges of the vendeur primitif. That wiU make it a matter of fundamental importance, that the letters containing the original order should be produced. The mercantile law I take to be clear and distinct, that the vendor has not a right to vary the consignment, except in the case above stated. The mischief and inconvenience that would ensue on a contrary supposition are extreme. The goods might be put on board, and might lie at the risk of the consignee for two or three months, and if the consignor could come and resume them at pleasure, it would place the con- signee in a situation of gi-eat disadvantage, that he should be exposed to the i-isk during' such a length of time, for an 38 STOPPAGE IN TRANSITU. object which might be eventually defeated at any moment by the capricious or interested change of intention in the breast of the consignor. It would be to expose the consignee altogether to the mercy of the consignor." This decision of Lord Stowell was based upon the principle of revendication under the old law of France, which is analogous to the doctrine of stoppage in transitu, and it has been adopted by Lord Tenterden (u), as illustrative of the English law. Lord Stowell remarked that the French law was very important as regarded this case, it being a French consignment. He proceeded therefore to quote three cases from Umerigon, in each of which a French Court had ordered goods to be delivered to the original consignee, notwithstanding a change of -destination by the consignor ; and then added, — " These cases I consider to be a clear exposition df the law, that persons having accepted orders, and made the consignment, have not a right to vary that consignment, except in the sole case of insolvency. The alteration may be made provi- sionally, without actual insolvency; but if the insolvency " does not take place, the act which has been done is a mere nullity ; and the vendor has exercised a power to which the law does not ascribe any legal effect." In Ogle v. Atkinson (x), Gibbs, C. J. said that stoppage in transitu, properly speaking, can only take place when there is an insolvency. But it is not necessary that the vendee should have been formally adjudicated a bankrupt. Absolute bank- ruptcy is of course a complete justification of the vendor's exercise of the right of stoppage ; and if the goods purchased" are likely to realise a profit over and above the contract price, it may then be a matter of consideration for the assignees of the bankrupt' vendee, whether they should adopt the contract by payment of the price or finding security for it {y). The (m) Atbot on Shipping, 9th edit. p. 424. (a;) 1 Marshall, 327. (y) Qibsoii v. Carruthers, 8 M. & W. 329. WHEN VENDEE INSOLVENT. 39 insolvency of the vendee, or the fact of his being in embar- rassed circumstances, so as to render it doubtful whether he will pay the price, will justify stoppage of the goods (2:). (z) See Mills v. Ball, 2 B. & P. 457 ; Edwards v. Brewer, 2 M. & W. 375 ; James v. Griffin, 2 M. & W. 622. CHAPTER III. IN WHAT MANNER THE EIGHT MAY BE EXERCISED. Section I. — Effect of the Bankruptcy of the Vendee. The insolvency or bankruptcy of the vendee is not of itself equivalent to a stoppage in transitu ; and judges have expressed great regret that such a rule should have been adopted as that which vests in the assignees of a bankrupt the property in goods which amve after the bankruptcy ; but the cases have been too decisive upon the subject for them to adopt a contrary doctrine (a). Notwithstanding the bankruptcy of a vendee, his ware- house continues open for the reception of goods ; and his assignees may take possession from a shipmaster or carrier of goods deliverable to a bankrupt, leaving the vendor to come in as a creditor tinder the commission. In Haswell v. HvMt (6), according to a note of the case by Buller, J., it appeared that Lacey went to the plaintiffs and bought a parcel of tobacco, to be paid for in ready money ; this was in the morning. He left orders at his house for receiving the tobacco, and the same day went to France to absent himself from his creditors. After he was gone the plaintiffs' .servant brought the tobacco to Lacey's house, but he had no orders to make any demand of .the money, but only to deliver the goods. The question was, whether this was a complete sale, so as to vest the property in Lacey, or, whether his bank- (a) Per Heath and Rooke,'J.J., 3 B. & P. 469. (6) Cited in 5 T. R. 231. * EFFECT OF BANKRUPTCY. 41 ruptcy, between the sale and the delivery, was such a fraud as avoided the sale by non-payment of the money ? Eyre, C. J. held that the sale was made complete by the act of the plaintiffe, who by delivery of the goods without demand of the money, vested the property in Lacey by their own con- sent, as a complete sale ab initio without ready money, and the plaintiffs were non-suited. In Ullis V. Hunt (c), the plaintiff's counsel having contended that bankruptcy was of itself a countermand. Lord Kenyon, C. J. said, — If any case had been decided to the extent of the plaintiff's argument, the plaintiff here would be entitled to recover ; but that has never yet been decided. On the 24-th of November the goods arrived at the end of their destined journey, and were deposited in a place where they would have remained tiU the bankrupt could have carried them to a warehouse of his own ; and it was not until the 28th of that month that the vendor wrote to countermand the delivery of the goods. But that was too late, for the goods were no longer in transitu ; they were then in the possession of the party to whom they were con- signed, or of those who represented him." And "again, in Tooke V. Hollingworth (d), Lord Kenyon, 0. J. said, — " It never yet has been decided whether or not a person who, acting under a previous agreement, sends goods to another against whom a commission of bankruptcy has been issued at the time, and who is not only an insolvent person, but disabled by the laws of his country from dealing at all, can recover those goods agaiu under an idea that the situation of that other, with whom he meant to deal, was so altered that it could not be considered to be a contract with him. If the purchaser were dead at the time when the goods arrived, must they go to the executor ? And other cases of the same kind might be put, which would considerably distress the (c) Z T. E. 467. {d.) 5 T. R. 226, 230. 42 STOPPAGE IN TRANSITU. argument, in the affirmative of the proposition, that the assignees should take these goods, although the vendee were a bankrupt when they were sent. It may be proper to discuss these questions when they are arise ; but I will now forbear entering into a discussion of that which appears to be an arduous task, because it is not necessary for the detenni- nation of the present case." BuUer, J. also said, — " The next point to be considered is the effect of bankmptcy; and I think some points have been made by the defendant's counsel which have not been answered. They contended that when the goods came to the hands of the assignees, the property was vested in them; and if so, nothing has happened since to divest it. This is an important part of the case ; and therefore it is material to consider whether or not this property was vested in the assignees. It has been held that bankruptcy does not put an end to the contract. That was so stated by Lord Kenyon and myself in Ellis v. Hunt (e) ; and that doctrine was not new, for in Haswell v. Hunt (/), the same point was ruled. It seems then esta- blished that bankruptcy does not at all events put an end to the contracts of the bankrupt. After the bankruptcy, several contracts have been binding on the bankrupt, though the creditors could not prove their debts under the com- mission." In Scott V. Pettit (g), one of the grounds on which the Court granted a rule nisi for a new trial was, that as the goods were not sent from the warehouse of the vendor till after the bankruptcy of the vendee, his bankruptcy might be deemed a revocation of the previous order, and consequently that no right vested in his assignees to enforce the contract, But when the cause came to be argued, this point was aban- doned, as it was too late to make this objection, after the (c) 3 T. R. 467. (/) Cited 5 T. R. 231. (g) 3 B. & P. 469. DELIVERY AFTER BANKRUPTCY. 43 many decided cases in which a similar circumstance had occmTed, without effecting any alteration in the right of the assignees of the bankrupt to claim the goods on their arrival, however desirable it might be to establish a different rule from that which had hitherto prevailed. Lord Alvanley, C. J. said, — " At the trial I could not help forming a wish that the question, how far the bankruptcy of Berkley, the vendee, had operated as a countermand of his previous orders should be considered by the Court. But on looking into the cases, I find that question to be completely closed in West- minster Hall; and that we, therefore, are bound to hold that, though a bankrupt has altogether ceased to be a trader, yet that his warehouse continues open for the purpose of receiving goods ; and that the assignees have a right to take possession of everything that may come into their hands without paying a single farthing, even although the con- signors of the goods are not entitled to come in under the commission. In Ullis v. Hunt Qi), Lord Kenyon says that it never had been decided that bankruptcy was of itself a countermand of an order. And in Bothlingk v. Inglis (i), the goods in question were not delivered on board the ship which was to bring them from Russia to the consignee in London, until after the consignee had committed an act of bankruptcy. No doubt, therefore, for the purpose of receiv- ing the goods, the assignees stand in the place of the bankrupt (k)." Section II. — Effect of Rejection of the Goods by thc^ Vendee. If the vendee finds that he is unable to pay for the goods which he had ordered, he may honestly refuse to receive (h) Ante, p. 42. (i) Ante, p. 31. (k) See Gibson v. Carruthers, 8 M. & W. 321. 44 STOPPAGE IN TRANSITU. them as part of his stock. In Atkins v. Barwick (1), a vendee, finding his circumstances becoming embarrassed, received goods from a vendor, and thinking it not reason- able that they should go to satisfy his other creditors, he sent them to a third person, with orders to forward them to the vendor. The vendee soon afterwards became bank- nipt, and his assignees brought trover against the vendor, who had resumed possession of the goods, and he was held entitled to retain them. In a subsequent case, Lord Mansfield said that the reasons given for the judgment turned on a subtilty ; the true ground was the honesty of the case ; that the trader very honestly refused to accept the goods, and returned them ; and he added, that the Court of Chancery would have interposed, for the assignees were not entitled to the goods without paying the price (m). The right of contracting parties to rescind the contract continues tiU it is executed. In Salte v. Field (n), Dewhurst had a house of business in London which was conducted by his clerk, but he resided and carried on business at New York. The plaintiffs sold goods to Dewhurst through his clerk, and they were delivered at the house in London, and were afterwards sent by the clerk to the defendant, to be packed and shipped to Dewhurst at New York. Dewhurst had written to his clerk a letter, which arrived after the goods were so delivered, desiring him to purchase no more (Z) 1 Str. 165. (m) See Cowp. 125 ; 4 Burr. 2239. See Bollon v. Tlie Lancashire and Yorkshire Bailway Company, C. P., 19 January, 1866. The question was, Aether a right of stoppage in transitu existed in the vendor of certain cotton sent by him to a station of the defendants' line of railway to be delivered to the vendee, who refused to accept the cotton as being of inferior quality? The goods remained at the railway station a month, and meantime the vendee became bankrupt ; and the vendor sought to exercise his right of stoppage and get back the goods, the assignees of the vendee contending that the transit had ceased. The Court of Common Pleas held that the right of stoppage in transitu still existed in the vendor, the vendee having refused to accept the goods. (n) 5 T. E. 211. POWER OF REJECTION. 45 goods, to countermand all orders, and to let the sellers have their goods back. This letter was shown to the plaintiffs, who agreed to take back the goods. Several attachments were made and served upon the defendant by creditors of Dewhurst, in order to attach the goods in his hands as packer. A meeting of creditors was called, and on a demand by the plaintiffs on the defendant for the goods being refused, an action was brought. The Court of King's Bench held that the vendee was entitled to disavow and to rescind the contract made by his agent, if the vendors chose to accede to it. A proposal to that effect having been made by one party, and agreed to by the other, the contract was put an end to with the consent of both ; and though the goods remained in the hands of the defendant, it was not for the purpose for which they were originally intended ; but, when the contract was rescinded, the property revested in the vendors, and the vendee's creditors had no right to attach the goods. It was also held, that where there was no express consent, the Court would presume it, because it was for the interest of the parties. The power of rejecting the goods and rescinding the con- tract exists only while the goods are in transitu. In Bar- tram V. Farebrother (o), where a consignee, on the arrival of goods at a wharfinger's, repudiated the contract, stating that he would not receive them, and directed an attorney to take the necessary steps for stopping the delivery ; the attorney accordingly gave the wharfinger an order not to deliver them, which order the consignor wrote to confirm on the following day ; and subsequently the goods were seized under an execution at the suit of one of the consignee's creditors : it was held that the original contract was re- scinded, and that the transitus was not ended by the arrival of the^ goods at the wharf, so as to deprive the consignor of (o) i Bing. 579; 1 M. & P. 515, S. C. 46 STOPPAGE IN TRANSITU. the right to stop in transitu. And in James v. Griffin {p), the vessel with the goods on board arrived at London, and the captain pressed the consignee to have them landed immediately. The consignee, therefore, sent his son with directions to have the goods landed at a wharf where he was accustomed to have goods landed for him, and kept until he should cart them away for his customers. But the consignee, being then insolvent, told his son that he would not meddle with the goods, that he did not intend to take them, and that the vendor ought to have them. The goods were landed at the wharf, and there stopped in transitu by the vendor. The assignees of the consignee, who became bankrupt, brought trover against the wharfinger, and the Court held that the goods belonged to the consignor. The case turned on the question, whether the acts done amounted to a taking possession of the goods by the bankrupt as owner, and it was material to ascertain what was the intention of the bankrupt. To prove this intention the declarations made by the bank- rupt to his son were held admissible in evidence, although they were not communicated to the consignor or to the wharfinger, and these declarations showed that the consignee had not taken possession of the goods as owner, and therefore the transitus was not determined (q). After actual delivery, the goods become identified with the vendee's property, and cannot, in contemplation of bank- ruptcy, be restored to the vendor, if the rights of third parties have intervened. The case of Smith v. Field (r) was similar to that of Salte v. Field (s), and arose out of the same circumstances and the same bankruptcy; but the vendors, instead of agreeing to the vendee's rejection of the goods, attached the goods for the price in the hands of the defen- (p) 2 M. & W. 623. (j) See Edwards v. Brewer, 2 M. & W. 376 ; M. & Hurl.' 132: (?•) 5 T. E. 402. («) Ante, p. 44. RE-DELIVERY AFTER BANKRUPTCY. 47 dant ; so that, as there was no rescinding of the contract by the consent of both parties, the property was held to pass absolutely to the vendee. The Court drew the distinction in this case from the fact that the vendors declined to rescind the contract, but treated it as subsisting ; for the instant they made affidavit that the vendee Avas indebted to them for the goods, it operated like a positive declaration by them, that they did not rescind the contract ; and then the interests of others intervened, — those of the general mass of the vendee's creditors (t). Nor can the vendee rescind the contract and return the goods with the consent of the vendor, so as to give him a preference over other creditors. Barnes v. Freeland (u) was an action in trover brought by the plaintiff as assignee of Lloyd, a bankrupt, for a quantity of iron. The defendant sold to Lloyd forty-four tons of iron, and delivered it on receipt of a bill for the price ; but Lloyd became insolvent, and subsequently bankrupt, before the bill fell due, and he offered to re-deliver to the defendant the iron, which had not been removed from the warehouse where it lay at the time of the sale. The defendant accepted the offer, and the bank- rupt delivered to him an invoice for the iron, and gave him the key of the warehouse. The Court of King's Bench held, that the circumstance of the goods having been actually delivered to the bankrupt, and having remained in his pos- session until he became insolvent, was decisive against the renunciation of the contract ; for the contract being complete and the property transferred, it could not be rescinded by any subsequent act of the parties, so as to affect the interests of third persons (v). In Dixon v. Baldwin (x), the vendees, who were insolvent, (i) See Neate v. Ball, 2 East, 123 ; Richardson v. Goss, 3 B. & P. 119. (u) 6 T. R. 80. (v) See Harman v Fisher, Cowp. 125. {x) 5 East, 175. 48 STOPPAGE IN TRANSITS. but had committed no act of bankruptcy, agreed hondfide to give up the goods to the vendors, and it was held, that the circumstance of the vendees having called a meeting of their creditors, and having taken legal advice, and being encour- aged by the result of such meeting and advice to give up the goods, was evidence for the jury to find that the goods were given up hond fide, and not from any motive of volun- tary and. undue preference, and that this operated as a renunciation. Lord Ellenborough considered that "it was competent to the vendees to rescind, and that they had, in fact, rescinded the contract for the sale of the goods. The circumstances of deliberation, consent of creditors, advice of counsel, and the publicity which attended the whole of the measure, exempted it from being properly considered as a fraudulent preference in contemplation of bankruptcy ; that the vendees must have considered themselves in a state of insolvency and impending bankruptcy at the time, cannot be doubted ; but, until an act of bankruptcy, the jus disponendi over goods remains by law with the trader, unless he exercise it by way of a voluntary and fraudulent preference of a particular creditor in contemplation of bankruptcy. But here the goods were given up, if not from a threat of liti- gation, at least under an idea of the right being probably adverse to the claim of the vendees and their creditors; and voluntary favour towards the vendors did not operate as any inducement with the vendees to recede from their rights on this occasion." Grose and Le Blanc, J.J. concurred in this view, but Lawrence, J. differed from Lord EUenborough, holding that the vendees' letter to the vendors, informing them that it was the general opinion that the goods should be given up, was no recognition on the part of the vendees of the right of the vendors in stopping the goods, nor an agree- ment to rescind the contract. On thecontrary, it imported that they did not choose to do anything without the consent of the creditors at large. MODE OF EXERCISE. 49 In Heinekey v. Uarle (y), an action in trover was brought for some hemp. The defendants were trustees and assignees of one Horn, a ropemaker at Sunderland, who had contracted to purchase some hemp of the plaintiffs, merchants in Lbndon. It was sent to Horn in a general ship. On the ship's arrival, being in embarrassed circumstances, and find- ing that he could not carry on his business, Horn ordered that the hemp should not be received on his premises till further orders. It was, however, delivered at his premises in his absence, and put by his servants in his warehouse. He stopped payment the same evening. Next day he wrote to the plaintiffs, stating the circumstances connected with the hemp and his own position, and that his object was to have the hemp warehoused for them, but that his solicitor had told him that he could not return the hemp ; and ended by regretting that he was under the necessity of depriving the plaintiffs of what he considered their right. On the plaintiffs -■demanding the hemp, Horn did not deliver it to them, but ' referred them to his solicitor. H but which rather determine when the vendor's possession ends, and that of the vendee begins. For the goods may be in the actual possession of the vendor, and yet constructively in the possession of the vendee, so that the vendor cannot stop deKvery or retain them for the unpaid price. Where the vendor has agreed to hold them in a different character, his rights as vendor are gone, although he may not have parted with the actual possession. Such cases are distin- guishable from those in which, though the goods remain in the actual possession of the vendor, yet this may be under circumstances which prevent the vendor's right of stoppage or retention being lost (o). It is important, therefore, to ascertain the true character in which the goods are held, and this depends on the acts and intention of the parties, for possession is not given or obtained without consent, and whether there has been such a mutuality of consent as to cause a transfer of the property in the goods is a question of much importance and difficulty, more especially where the vendor remains in actual possession. It was at one time considered that property could not be transferred without removal of the goods from the place they occupied ; for the possession had a tendency to create a pre- sumption of absolute property, and raised a credit on the faith of appearances ; and the Act 21 James I. c. 19, was (o) In M 'Ewcm v. Smith, 2 H. L. 309, where the vendor had not parted with the actual possession. Lord Campbell said, — "Several of the Judges in the Court below discussed at great length the question of stoppage in transitu. That doctrine appears to me to have no more bearing on this case than the doctrine of contingent remainders." 70 STOPPAGE IN TRANSITU. passed with a view to prevent persons from entrusting traders with the possession of goods in which they had not the pro- perty, and it imposes the penalty of causing goods in the possession, order, or disposition of a bankrupt to pass to his assignees under the commission (p). But this rule admitted of qualification, and where the circumstances did not admit of an immediate removal of the goods from the custody of the vendor, the vendee was held entitled to delivery as against the assignees of a bankrupt (g). But, as between vendor and vendee, the goods may be retained by the vendor until the price is paid (r). . If the vendor allows goods which remain in his own possession to be marked and re-sold, and marked again by the sub-vendee, these acts amount to delivery sufficient to take away the vendor's lien or right of stoppage in transitu, on the ground that the original vendor had consented to the transfer of the property in the goods to the sub-vendee. Thus, in Stoveld v. Hughes (s), where the defendants having sold a quantity of timber, then lying at their own wharf, to Dixon & Co., for bills payable at a future day, which timber was then marked by Dixon & Co., and a small part of it was forwarded by the defendants to one place, and part to another, and then Dixon & Co., before the time of payment arrived, sold the whole to the plaintiff, who notified such sale to the defendants, and was answered that it was very well, and then in the presence of the defendants, the plaintiff marked all the timber lying at their wharf, and afterwards marked that which had been forwarded to the other two (p) Wood V. Sussell, 5 B. & Aid. 942 ; Clarice t. Spence, 4 A. & E. 448 Laidler y. BvrKnson, 2 M. & W. 602 ; Thackwaite v. Cock, 3 Taun. 487 KnowUs V. Horsfall, 5 B. & Aid. 134; Mucklow \. Mangles, 1 Taun. 318 Manton y. Moore, 7 T. K. 67 ; Atkinson v. £eU, 8 B. & C. 277; Sparke-s v. Marshall, 2 B. & P. N. R. 761. (q) Eayner, v. Harford, 27 L. J. Chy. 708 ; Flyn v. Mathews, 1 Atk. 185, (r) Goodall v. Skellon, 2 H. Bl. 316. (s) 14 East, 308. EFFECT OF MARKING GOODS. 71 stages ; it was held, that the defendants, after such assent to the transfer, and such marking by the plaintiff, could not retain or stop any of the timber as in transitu, upon the subsequent insolvency before the day of payment of Dixon & Co., the original vendees, to whom payment had been made by the plaintiff, whatever question there might have been as between the original vendors and vendees. If the goods remain in the warehouse of the vendors, and they give the vendees samples to enable them to go into the market, and upon sales to different sub-vendees, orders are given to enable them to receive the goods, the vendors cannot retain the remainder of the goods for the unpaid price, on the insolvency of the vendee (t). And where the vendor's warehouse is one in which the goods of others are allowed to remain for rent, the receipt of rent by the vendor from the vendee is held equivalent to deliveiy, even to the effect of divesting the vendor of the right to stop in transitu, if the rights of a third party intervene. In Hurry V. Mangles (u), the defendants, who were warehousemen, had sold a quantity of oil lying in their warehouses to Smith, who accepted a bUl at six months for the price. The oil, which still remained in the defendants' possession, was demanded of them by the plaintiffs, who had bought the oil from Smith and paid him for it ; but the defendants refused to deliver up the oil until they were paid for it. Smith having become insolvent before hie acceptance was due. At the trial the defendants' clerk denied that they had ever transferred the oil in their books to the account of Smith ; but it appeared that they had received warehouse rent from him for its remaining in their warehouses after the period when it ought to have been taken away according to the terms of the sale. Lord EUenborough said, — " The acceptance of warehouse rent was a complete transfer of the goods to the (I) Green v. Haythorne, 1 Stark. HT. (ii) 1 Camp. 452. 72 STOPPAGE IN TRANSITU. purcliaser. If I pay for a part of a -warehouse, so much of it is mine. This is an executed delivery by the seller to the buyer. It would be overturning all principles, to allow a man to say, after accepting warehouse rent, 'the goods are still in my possession, and I will detain them till I am paid.' The transitus was at an - end. The goods were transferred to the person who paid the rent, as much as if they had been removed to his own warehouse, and there deposited under lock and key " (x). But although the goods be allowed to lie in the vendor's warehouse for rent, yet if something remains to be done with the view of measuring or separating them from the rest of the vendor's stock, the delivery is incomplete. In White V. WilJcs (y), the contract was for the sale of twenty tons of linseed oil to be delivered in one month, and paid for in four days by acceptance at four mouths. The vendee not immediately requiring it, the oil was not measured, but remained in the cisterns of the vendor. Before the bill was accepted the vendee failed, and an action of trover was brought by the assignees. The Court of Common Pleas held that no property in any oil passed by the contract to the vendee. Lord Mansfield, 0. J. said, — " The objection here is, that no specific quantity of oil was sold. The quantity agreed to be sold was mixed with a much larger quantity ; and not only that, but it was mixed with several different quantities. How -was it to be separated 1 This, too, is the case of a liquid, which makes the difficulty much greater than in the case of a solid substance." Heath, J. also observed that " supposing a part of the oil in some of the cisterns were lost or burnt, who is to know whether it is the vendor's or the purchaser's oil that is destroyed " (z). (x) See Wright y. Lawes, i Esp. 82 ; AnOerson v. Scott, 1 Camp. 235, n. ; Hodgson v. Le Bret, 1 Camp. 233 ; Elmore v^ Stone, 1 Taun. 458 ; Carter v. J'oussamt, 5 B. & Aid. 865. (rj) 1 Marsh. 2 ; 6 Taun. 176. (s) See Austen v. Graven, i Taun. 644^ Whitelwuse v. Frost, 12 East, 614. ACCEPTANCE OF WAREHOUSE RENT. 73 Where goods are sold under an invoice stating that they remain at rent in the warehouse of the vendor, as between vendor and vendee, the goods may be retained by the vendor until the price and the rent be paid. In Miles v. Oorton (a), goods were sold under an invoice which stated that they remained at rent. The vendee subsequently accepted a bill drawn by the vendor for the price, which was negotiated by the vendor. Whilst the bill was running the vendee sold a part which, by his direction, was delivered by the vendor to the sub-vendee, whom the vendor charged with warehouse rent for the part. Subsequently the vendee became bank- rupt, and the bill was dishonoured. The assignees brought trover against the vendor for not giving up the portion of the goods which remained in his hands. The Court decided that the assignee of the bankrupt vendee could not, without paying the price, maintain trover against the vendor for the residue of the goods which had remained in his hands. Bayley, J. said, — " I am of opinion that the charge of ware- house rent makes no difference, and I should have thought so if the warehouse rent had been actually paid. In Hurry v. Mangles (b), the circumstances were widely different ; there the rights of a third party intervened. He had bought and paid for the goods, and then paid warehouse rent to the vendors ; under these circumstances it was rightly held that there was a delivery to the sub- vendee on the part of the vendors, who after receipt of such rent from the sub-vendee, must clearly be considered as holding - the goods as his agents. Here, in point of fact, the warehouse rent was not actually paid, but only charged, and such charge amounted to a notification by the seller to the purchaser that he was not to have the goods, not only until payment of the price but of the rent. In this case, therefore, the vendor had originally a right to hold both for the price and the rent ; (a) 2 C. & M. 504. (b) 1 Camp. 452 ; ante, p. 71. 74 STOPPAGE IN TRANSITU. and the effect is not to make, as has been argued, the ware- house of the vendor the warehouse of the vendee, but to make it a part of the contract between the parties that the goods are not to be delivered until not only the price but the rent is paid." In the case of New v. Swam (c), the plaintiff had bought of the defendant several bags of hops, to be paid for by bill at three months. The bill was given, but the plaintiff having no convenient place for depositing the goods, he agreed to leave them with the defendant, who kept a warehouse for the purpose of warehousing goods at a stipulated rent. Before the end of the three months the plaintiff re-sold the hops, but the bill having been dishonoured when due, the defen- dant refused to deliver them. The bill was afterwards paid, and the hops were therefore delivered; but a reduction in the price having taken place in the meantime, the plaintiff sustained a loss, for which he brought his action. At the trial before Lord Tenterden he was nonsuited, on the ground that the vendor having possession of the goods at the time when the bill was dishonoured, he had a right to retain them until pa3Txient of the price. On a motion to set aside the nonsuit, the plaintiff contended that there was in this case actual delivery of the goods to the vendee. By the agree- ment to receive rent for the warehouse-room, the defendant admitted that he had no longer the possession in his own right; from that time he held them merely as the warehouseman and agent of the vendee ; then, having once divested himself of the possession, his lien was in-evocably gone. A lien must arise out of something at the time of the contract, and cannot be created by matter ex post facto, such as in this case the non-payment of the bill. The defendant here has waived his lien, and elected to take his remedy on the bill ; nor can he be allowed the choice of availing himself of a contract which («) I D, & L. 193. CONSTRUCTIVE POSSESSION. 75 he has entered into as the consideration for parting with the goods, or of insisting on the right which he might otherwise have had of retaining the possession until payment. Undoubt- edly, in certain cases, the vendor has a right to resume even after he has parted with the possession, — he has the right of stoppage in transitu ; which, though originally an equitable power, has long been recognised at law ; but this right is exercised in cases of a general suspension of payment or known insolvency of the vendee, and is founded rather on a supposed incapacity on his part to receive or administer. Here there is nothing of that kind ; besides, even in that case, if the delivery be once complete — if the buyer have gained possession of the goods, even constructively, the right of stoppage is gone. Lord Tenterden, C. J. said, — ■ " We are all of opinion that, on non-payment of the bill, the defendant had a right to retain the goods. The general rule is well known, and we do not think that the right was in this case taken away by the agreement for rent." Bayley, J. said, — " Where the owner of goods sells on credit, the buyer has a right to immediate possession, but if he suffer the goods to remain until the period of payment has elapsed, and no payment in fact is made, then the seller has a right to retain them. There is no difference in principle whether the seller charges the buyer with a rent or not. They ^re still in his possession." The question which was decided in this case, that there was no legal obligation on the defendant to deliver the goods after the biU was dishonoured, without receiving payment of the price, is consistent with the principles which, govern the contract of sale, as contained in the following propositions laid down by Bayley, J., in the case of Bloxavn V. Sanders (d). 1. Where goods are sold and nothing is said as to the time of delivery or of payment, and everything the (d) iB. &C. 9i8. 76 STOPPAGE IN transitu: vendor has to do is complete, the property vests in the vendee, so as to subject him to the risk of accidents, and entitle him to demand possession on payment of the price ; but he has no right of possession till the price be paid. 2. The vendor's right in respect of the price is not a mere lien, which he will forfeit if he parts with the possession, but grows out of his original ownership and dominion ; and payment or tender of the price is a condition precedent on the vendee's part, and until performed he has no right of possession. 3. If the goods are sold on credit, and nothing said as to the time of payment, the vendee has right to the possession as well as the property ; but this right of posses- sion is not absolute, it is liable to be defeated if he should become insolvent before he obtains possession. 4. If the vendee should fail to pay when the credit expu-es, and is insolvent, it is as if no bargain for credit had been made ; the vendor has then a right to stop in transitu by virtue of his original ownership, the right of the vendee being defeated ; and much more has the vendor a right to retain the goods. 5. The vendee can maintain no action which requires both a right of property and a right of possession, but on payment of the price. Goods still in the warehouse of the vendor may be retained and delivery ^topped for payment of the price, although he may have given to the vendee a delivery order, or, although part of the goods has been delivered to a sub-vendee. In Townley v. Crump (e), the owners of a quantity of wine, having placed it in a warehouse which they rented, sold part of the stock to one Wright, and delivered to him an invoice stating the terms on which it was sold, and that it was to remain in their warehouse rent free. Wright accepted a bill in payment for the wine, and the vendors gave him a delivery order, Wright went into the market and sold part of the (e) i A. & E. 58. SALE TO SUB-VENDEE. 77 wine he had purchased, and that part was delivered to the sub-vendee. It was proved that in Liverpool the mode of delivering goods in a warehouse, was by transfer of the delivery order ; that the party possessing this order might go into the market, and upon the authority of it sell the goods, as Wright had done in the present instance, and that the delivery orders were not transferred without the vendor first receiving payment for the goods ; yet it was held that the vendors were entitled to retain the wine on the bankruptcy of Wright. Lord Abinger, C. B. considered that no sufficient delivery was shown to divest the vendor of his lien, and observed that the giving of an invoice or bill of lading does not take away the right to stop in transitu, if there has been no actual delivery of- the goods, and he directed a nonsuit, giving leave to move to enter a verdict for the plaintiff for the value of the wine. In disposing of the motion his lord- ship said, — " I think it is not contended that there is any general usage which could divest this right in such a case upon the insolvency of the vendee. Cases have been cited, but none where the question arose between the original vendor and vendee." But if the vendor give a delivery order for goods remain- ing in his warehouse to the vendee, who re-sells the goods, and the sub-vendee is accepted by the original vendor as oilier, and entered in his books as such, without notice of any contingent claim, the vendor cannot afterwards stop delivery to the sub-vendee in respect of the original vendee's bankruptcy, the goods not having, been paid for. In Pearson V. Dawson (/), goods lying at the vendor's bonded warehouse under the charge of his warehouse-keeper, and entered at the Custom-house in his name, were sold and paid for by bills at three months. The vendee allowed the goods to remain in the vendor's warehouse, and he re-sold part of the (/) E. B. & E. 448:. 78 STOPPAGE IN TBANSITtr. goods, and gave the sub-vendee a delivery order. The vendor, on receiving the delivery order, placed it on the file, and put the sub-vendee's name as purchaser opposite the entry of the specified goods in the sale-book, in which he had originally entered the name of the vendee. The subrvendee afterwards, on several occasions, gave orders for the delivery of portions of the goods, and the vendor thereupon directed his warehouse-keeper to deliver those portions to the sub- vendee, on his paying the duty. The original vendee after- wards, and before the bills given by him were due, became insolvent, and the biUs were dishonoured. The original vendor refused to deliver the remainder of the goods to the sub-vendee, alleging that he was entitled to retain them till the original vendee's debt was paid. But the Court held that he had no such right, that by accepting the delivery order given by the vendee to the sub-vendee, without giving notice of any contingent claim upon the goods in respect of the vendee, the vendor must be held to have recognised the sub-vendee as entitled to the absolute right in the property and the possession of the goods, and could not set up, as against him, any subsequent claim in respect of the vendee. Section II. — Goods in the possession of a Warehouseman or Wharfinger. Goods are frequently sold upon credit, while they are not in the custody of the owner, but in that of a third party, such as a warehouseman or wharfinger, who is to deliver them to the vendee on receiving an order from the vendor. In general, every warehouseman or wharfinger is the agent of the party by whom he is employed, and his possession is the possession of such party ; but the question frequently arises as to the power of the vendor to countermand delivery of the coods, in the event of the insolvency of the vendee after a CONSTRUCTIVE POSSESSION. 79 delivery order has been granted by the vendor. In this case, the possession of the warehouseman or wharfinger has been looked upon as of the nature of a transit ; but the question more properly is, whether the delivery order has been revoked by the vendor in time to prevent the warehouseman from holding the goods to the order of the vendee, and thereby transferring the vendor's constructive possession to the vendee. Where a vendee was allowed to mark the goods 'but not to remove them from the possession of the warehouse- man, there being no delivery order from the vendor, this was held not sufficient to change the constructive possession of the goods by the vendor, and a sub-vendee to whom the goods were re-sold acquired no better title. In Dixon v. Yates (g), Dixon bought of Yates a quantity of rum lying in the warehouse of Yates at Liverpool, and sold it to CoUard, who was a clerk of Yates, but carried on business on his own account. Dixon gave CoUard an invoice, specifying the marks and numbers of each puncheon, and took his acceptances for the price. The rum and the samples which had been taken remained in Yates's warehouse. The invariable mode of delivering goods sold while they are in warehouses at Liver- pool, was by the vendor's giving a delivery order to the vendee. Dixon was asked by Collard for delivery orders, but declined giving any, except for two or three puncheons, which Collard received. Collard then marked, coopered, and gauged the casks. While the bills were running, Collard sold twenty-six of the puncheons to Kaye, who paid for them, and who, by CoUard's permission, without the know- ledge of Dixon, gauged and coopered the casks in the ware- house of Yates, and marked them with his initials. Collard gave an invoice to Kaye, stating the numbers and marks on the casks, and by whom the rum was bonded. While the (g) 5 B. & Ad. 313. ' . 80 STOPPAGE IN TRANSITU. bills were running, CoUard also sold eighteen puncheons of the rum to other two parties, to whom he gave similar invoices and samples; and who aftei'wards obtained three of the puncheons, on a delivery order signed by themselves, but not by Dixon ; and they paid CoUard for the whole. The bills given by CoUard were dishonoured. It was held, that CoUard had never acquired actual possession of the rum, and on his dishonouring his acceptances, Dixon had a right to retain or stop in transitu; and that CoUard's sub-vendees could not claim against Dixon the rum which remained undelivered to them. In delivering judgment, Littledale, J. said, — " It is a general principle of law, that a man who has not the property and right of possession in goods cannot transfer them to a vendee ; and therefore, if the original vendor chooses to retain or stop in transitu, a second vendee is. in no better situation than the first. Then it is said there was a part delivery here, and that, in point of law, operated as a constructive deUvery of the whole. But that rule is confined to cases where the delivery of part is intended to be a delivery of the whole.- On the contrary, in this case there was an express refusal to deliver the whole. There are two general principles of law which must decide the present case ; the one is, that so long as goods sold and unpaid for remain iu the immediate pos- session of the vendor, he may refuse to deliver them ; and if they remain in the possession of his agent, i.e., a warehouse- man or carrier, he may stop them. The other is, that a second vendee of a chattel cannot stand in a better situation than his vendor " (It). The giving of a delivery order does not, without some positive act done under it, operate as a constructive delivery of the goods to which it relates, nor deprive the owner of the goods of his right to retain them for the price, even as against the claims of a third party who has bond fide pur- (h) See Craven v. Ryder, 6 Taun. 433 ; 2 Marsh. 127 ; Holt, 100 ; Small V. Moates, 9 Bing. 592. TRANSFER BY DELIVERY ORDER. 81 chased them from the original vendee. In M'Ewan v. Smith (i), Smith, the owner of sugar in the warehouse of Little & Co., sold it to Bowie & Co., and having received a bill in payment of the price, gave them a delivery order for the sugar upon their agent, Alexander. Bowie & Co. sold fhe sugar to M'Ewan & Sons, the plaintiffs, and transferred 'to them the delivery order. Neither the vendees nor the sub- vendees took any steps to act on the delivery order, till Bowie & Co. became insolvent, when Smith's agent removed the goods to another warehouse. It was held, that the pos- session of the goods had never been changed ; that a delivery order, by being merely indorsed over does not, like a bill of lading, pass the property in the goods, and that Smith, the original vendor, might still countermand delivery of the goods for payment of the price. But where the vendor gives a delivery order, authorising the transfer of the goods to the name of the vendee in the books of the warehouseman or wharfinger, as soon as the latter receives the delivery order, the vendor's right of stoppage in transitu is gone, and the warehouseman or wharfinger is thenceforth bound to hold them as the agent of the vendee. In Harman v. Ander'son (k), Dudley bought 600 casks of butter, lying in the warehouse of Anderson & Co., wharfingers. With the invoice Dudley received from the vendor an order for delivery on Anderson & Co., who, on receiving notice of the order, transferred the goods in their books to Dudley's name, and debited him with the warehouse rent. Dudley then became insolvent, and the vendor gave Anderson & Co. notice to hold the butter on his account. A commission of bankruptcy issued against Dudley, and his assignees demanded the butter from Anderson & Co., the defendants, but they delivered it to the vendor. Trover was brought by the assignees. For the defendants it was argued (i) 2 H. L. Cases, 309. (k) 2 Camp. 243. 82 STOPPAGE IN TRANSITU. that they were justified in delivering the butter to the vendor;^ on the ground that the vendor's right to stop in transitu subsisted at the time of Dudley's insolvency. The goods remaining with the wharfingers could not be considered as delivered to him, and he had never exercised any act of ownership over them. The wharfingers were not his agents^ but the agents of the vendor. No such eJBfect as determining the right to stop in transitu could be ascribed to the transfer in the wharfingers' books, without entirely altering the law upon this subject ; as it almost invariably happens that goods sent by a carrier are booked in the name of the consignee, and goods are made deliverable to the purchaser in almost every bill of lading. The plaintifis relied upon the case of Hurry v. Mangles (I), in which it was held, that if goods when sold remain in the warehouse of the vendor, and he receives warehouse rent for them, this amounts to a delivery of the goods to the vendee, so as to put an end to the' vendor's right of stopping them in transitu. Here rent had been charged by the defendants to Dudley from the time the goods were transferred into his name. There is a clear difference between the case of a carrier and that of a ware- houseman or wharfinger like the defendants. While the goods are in the hands of the carrier, they are still in transitu ; but when they come to the warehouseman or wharfinger, who finally holds them for the real owner, they have reached their destination, and the transit is at an end. Lord Ellenborough dii-ected the jury that, the goods having been transfeiTed into the name of the purchaser, it would shake the best established principles, still to allow a stoppage in transitu. From that moment the defendants became trustees for the vendee, and there was an executed delivery as much as if the goods had been delivered into his own hands. The payment of rent in these cases was a circumstance to show on whos,e {I) 1 Camp. 452 ; ante, p. 71. TRANSFER OF DOCK WARRANT. 83 account the goods were held; but it was immaterial here, the transfer in the books being of itself decisive. He was clearly of opinion that the assignees were entitled to recover. There was a verdict for the plaintiffs. In the ensuing term, the Attorney-General for the defendants expressed his acqui- escence in the direction of the Judge at Kisi Prius ; but moved to reduce the damages on an affidavit, stating, that as to one parcel of the butter, no transfer had been made in the defendants' books to the bankrupt before bankruptcy. In respect to this parcel, the fact.s were that Dudley, having received the delivery note from the vendor, sent it to the defendants, in whose warehouse the goods were lying ; and that they neither made any transfer in their books to his name, nor did anything to testify that they accepted the delivery note, or held these goods on his account. There had been no delivery, therefoi-e, of this parcel, and the right of stopping in transitu still subsisted when the vendor interfered. Lord Ellenborough decided that after the note was delivered to the wharfingers, they were bound to hold the goods on account of the purchaser. The delivery note was sufficient without any actual transfer being made in their books. From thenceforth, they became the agents of DudlEy the banki-upt. They themselves might have a lien on the goods, and be justified in detaining them till that was satisfied ; but as between vendor and vendee the delivery was complete and the right to stop in transitu was gone. The other Judges concurred, and a rule to show cause was refused {in). Where goods, entered in the books of the West India Dock Company, were sold and paid for, and the dock-warrant was indorsed and delivered to the vendee, who resold the goods on credit and delivered the dock-wai-rant to the sub-vendee ; it was held, that on the insolvency of the sub-vendee, the (»i) Lvais r. Dorien, 7 Taim. 279 ; Titcker v. Ruston, 2 C. & P. 86 ; Keyset v. Suse, Gow, 58 ; Barton y. Bodington, 1 C. & P. 207 ; Sionard v. Dunkin, 2 Camp. 344 ; In re Hughes, 12 Ir. Chanc. Rep. 450. 2 84 STOPPAGE IN TRANSITU. original vendor could not stop delivery, for the benefit of the vendee who re-sold the goods, although the warrant had not been lodged with the Dock Company (n). Although the effect of a transfer in the books of the wharfinger is ordinarily to constitute him the agent of the vendee, yet there may be special circumstances which prevent its having that operation. Godts-v. Rose (o), was an action of trover brought for some casks of oil. It appeared that the plaintiff, having a quantity of rape oil at Humphreys' Wharf, he contracted to seU five tons of it to the defendant at a certain price ; the oil to be delivered free and paid for in fourteen days by cash, less discount. The plaintiff sent an order directing the wharfinger to transfer into the defendant's name the oil so bought ; and the wharfinger's clerk made the usual entry in his book, and gave the plaintiff's clerk a transfer order addressed to the defendant, acknowledging that the five tons were held for him. The plaintiff's clerk took the invoice and transfer order to the defendant's counting-house, and offered them to him, at the same time demanding a cheque for the amount. The defendant took the order, but refused to give the cheque. The clerk there- upon I'etumed to the wharf, and gave notice to the wharfinger not to deliver the oil to the defendant ; the wharfinger, how- ever, notwithstanding this notice, delivered the oil to the defendant. The Court held, that, under the circumstances, neither the property nor the right to the possession of the oil passfed to the defendant. WilHams, J. said, — " This was not a sale of any specific oil ; but the seller intended to appropriate to the buyer five tons out of the quantity he had at the wharf, and he sent the wharfinger a transfer order for the purpose of carrying that appropriation into effect. There is no doubt, upon the authorities, that if that transfer order had been delivered to the buyer, and he had (n) Spear v. Trovers, 4 Camp. 251. (o) 17 0. B. 229. EFFECT OF TRANSFER. 85 carried it to the wharfinger, and the latter had consented to hold the oil specified therein for him, or if, after the order had been left with the wharfinger by the seller's clerk, the wharfinger had communicated it to the buyer, and the latter had assented to it, either tacitly or explicity, that would have constituted a complete transaction, inasmuch as the transac- tion would have amounted to an arrangement that the oil should remain in the wharfinger's hands as agent for the vendee. It is impossible to say that the facts here show that any arrangement of that kind was come to, for the vendor's clerk was induced to part with the order by a species of force." If a deliveiy order be presented to a wharfinger, which he is not bound to obey, on the ground that he may refuse to accede to a change of principal, or an alteration in the nature of his agency, and it is consequently not accepted by him, the result of such refasal is a continuation of the transitus, and the vendor may exercise his right of stoppage. In Lack- ington v. Aiherton (jp), the goods purchased were warehoused in the West India Docks in the vendor's name, and the vendee re-sold them, and gave a delivery order to the sub- vendee. The Dock Company declined to act upon this order, but required the order of the vendor in whose name the goods were warehoused ; and before this order was obtained, the sub-vendee became bankrupt. The Court held that his assignees were not entitled to maintain trover for the goods, and that the original vendor might still exercise his right of stoppage and intercept the delivery. Tindal, C. J. observed, in giving judgment, — "This is an action, brought by the assignees of Paul & Son, bankrupts, to recover the value of certain deals purchased by the bankrupts before their bank- ruptcy, but not paid for ; and the question is, whether, upon the facts that appeared in evidence, they were stopped by (j>) 8 Scott, N. E. 38. 86 STOPPAGE IN TRANSITU. the vendor before delivery ? It appears to me that the stoppage did take place before the deals reached the hands or possession of the vendees. In order to prevent an unpaid vendor from intercepting goods or stopping them in transitu, there must have been a delivery actual or construc- tive. Now, here it is not suggested that there was an actual delivery, the sole question therefore is, was there a constructive delivery ? The only ground upon which it can be contended that there was a constructive delivery is, that on the 12th of October, 1839, the bankrupts obtained from the defendant an order upon the Dock Company to deliver the deals to them. If that delivery order had been signed by Tindal, the importer, by whom the deals were originally deposited with the Company, and in whose name they were still held by them, all would have been clear ; there would then have been a constructive delivery of the goods to Paul & Son, which would have vested the property in them ; and their assignees, the present plaintiffs, might have maintained trover for them. But the order appeared to have been signed by Congreve & Atherton, persons who, so far as the Dock Company was concerned, were strangers to the goods ; and the question is, whether it was a document that the Dock officers were bound to obey 1 They were neither the servants nor agents of Congreve & Atherton, but of Tindal, by whom the deals were deposited with the Company, and in whose name they stood in their books, and therefore it was in effect the delivery of that which was no order at all. On the part of the plaintiffs it was contended that the defendant is estopped by the delivery order — that it does not lie in his mouth to say that he was not in a situation to be able to give a valid order. If the situation of the bankrupts had been at all varied in interest by the omission of the defendant to procure a proper delivery order, the case might have had a different aspect. But they had not paid for the goods." EFFECT OF REFUSAL TO TRANSFER. 87 Coltman, J. said, — " The case is material, in so far as it recognises the authority of Harman v. Anderson (q), which undoubtedly shows that an order upon a wharfinger, though not acted upon, is binding on the party by whom it is given. But the ground of that is, that the order is one that the wharfinger is bound to obey ; and he becomes the agent of the person to whom he is directed to deliver, or for whom he is directed to hold the goods. Here, however, the order signed by Gongreve & Atherton was wholly inoperative to constitute the Dock Company the agents of Paul & Son. As therefore there was no actual delivery of the deals to tbe bankrupts, and they were not held by any agent of theirs, there was no delivery, either actual or constructive, so as to deprive the unpaid vendor of his right to stop them in transitu. The .only ground upon which the plaintiffs rest their claim is, that the issuing of the order by Congreve & Atherton operates as a kind of estoppel, and that it is not competent to the defendant to say that that order was not duly made. But in general such an estoppel is not allowed to prevail, unless the situation of the party has been changed. That is not the case here ; the goods were not«paid for by Paul & Son ; they gave a bill which turned out to be mere waste paper. I am therefore of opinion that the defendant is not estopped from saying that the property in the goods did not in point of law pass to Paul & Son by that delivery order." Where something remains to be done on the part of the seller to ascertain the price or identity of the goods, or the weight or measurement, the right of stopping delivery con- tinues until the particular act is performed. In Hanson v. Meyer (r), the bankrupts employed Wright, a broker, to buy starch from Meyer. It lay at the Bull Porters, Seething- lane. Wright bought it at 61. per cwt., and bought and sold notes were exchanged. The vendor gave a delivery order to (?) 2 Camp. 243; ante, p. 81. (r) 6 East, 614. 88 STOPPAGE IN TEANSITTT. the vendee addressed to the warehouse-keeper in these terms : — " Please to weigh and deliver to Messrs. Wallace & Hawes all my starch." The warehouseman received the order, and part of the starch was weighed and delivered when the vendees became bankrupt. The vendor obtained the un- weighed part of the goods, and the assignees brought trover. There was a verdict for the vendor. Lord EUenborough said, — " By the terms of the bargain formed by the brokers of the bankrupt, two things in the nature of conditions, or preliminary acts, necessarily preceded the absolute vesting in them of the property contracted for. The first of them is one which does so according to the generally received rule of law in contracts for sale, viz., the payment of the agreed price or consideration for the sale. The second, which is the act of weighing, does so in consequence of the particular terms of this contract, by which the price is made to depend upon the weight. The weight, therefore, must be ascertained in order that the price may be known and paid ; and unless the weighing precede the delivery, it can never, for these purposes, effectually take place at all. In this case, weighing -was necessary to precede both payment of price and delivery of the goods bargained for. This preliminary act of weighing, it certainly never was in the contemplation of the seller to waive in respect of any part of the commodity contracted for. The order to the Bull Porters, his agents, was to weigh and deliver all his starch. Till it was weighed, they, as his agents, were not authorised to deliver it, still less were the Jjuyers themselves, or the present plaintiffs, their assignees, authorised to take it by their owu act from the Bull Porters' warehouse ; and if they could not so take it, neither can they maintain this action of trover, founded on such a supposed right to take, or, in other words, founded on such a supposed right of property in the subject-matter of this action. If anything remains to . be done on the part of the seller, as between him and the buyer, before the commodity purchased CUSTOMARY OPERATION UNPERFORMED. 89 is to be delivered, a complete present right of property has not attached in the buyer " (s). So, where the price and quantity were both ascertained, but a customary operation remained unperformed, the right of stopping delivery continues till that is done. In Wallace V. Breeds (t), a sale-note for the purchase of fifty tons of Green- land oil was delivered by the sellers' broker to the purchasers, the oil to be paid for by their acceptance, payable at a future day, and they afterwards received from the sellers an order on their wharfingers for the delivery of fifty out of ninety tons of oil belonging to them. The order was sent to the wharfinger, and received by the clerk. The buyei's became insolvent, and the order was countermanded by the vendors, who obtained the oil. Trover was brought by the assignees of the bankrupt vendees. It was proved that before Greenland oil was delivered, it was the constant custom to have the cask searched by a cooper employed by the seller, and it was also the custom for the broker, on behalf of both buyer and seller, to ascertain the foot-dirt and water in each case, for which allowance would be made, and that the casks were then filled up by the seller's cooper, and delivered in a complete state ; of all which nothing had been done. There was a verdict for the sellers. Lord Ellenborough said, — " These were material acts to be done by the seller before the delivery to the buyer ; and the Courts have frequently laid hold of circumstances like these to retain the property in favour of the unpaid seller ; and before the oil was measured out, and these things' were done, the delivery was countermanded " (u). But where each article of the goods sold has been measured, it is not necessary to the completion of the measurement that (s) Busk V. Davies, 2 M. & S. 397 ; Withers v. I/yss, 4 Camp. 237 ; BhepUy v. Davis, 5 Taun. 617 ; Simmonds T. Swift, 5 B. & C. 857 ; Aiisteti V. Craven, 4 Taun. 644 ; White v. WilJes, 5 Taun. 176 ; Wood v. Tassell, 6 Q. B. 234 ; Tanner v. Scovell, 14 M. & W. 28. (0 13 East, 522. {u) Rugg v. Minett, 11 East, 216. 90 STOPPAGE IN TRANSITU. the total amount should be ascertained, in order to prevent the right of property in the goods from passing to the vendee. Thus, in Tcmsley v. Turner (x), the plaintiff sold to Jenkins trees lying on land occupied by Buckley, and Jenkins was to have the power of removing them when he pleased. The trees having been marked by the purchaser, the cubical contents of each ascertained, and some of them having been taken away, it was held, that the transfer of the whole was complete, and that upon Jenkins's bankruptcy the plaintiff could not countermand the delivery of the trees notwith- standing they remained on the land of Buckley, and the sum total of the cubical contents had not been ascertained. Tindal, C. J. observed, — " Under the circumstances of this case, I think there was a complete delivery to the purchaser. The trees, which were on the land of Buckley, were sold at so much a cubic foot — the purchaser to have power of entering to remove them when he pleased. I agree that if anything had remained to be done by the seller, the property had not passed. But when I find that all that remained was to ascertain the total number of cubical feet, and that the number for each tree had been ascertained, the mere adding up the whole is too trifling an incident to authorise us to say the measurement was not complete " (y). Where the identity of the goods and the quantity are ascertained, and the weighing is merely for the satisfaction of the purchaser, a delivery order presented to the warehouseman will transfer the property to the purchaser, and defeat the vendor's right of stoppage in transitu. In Hammond v. Anderson (z), a number of bales of bacon lying at a wharf, having been sold at an amount to be paid by bill at two months, an order was given to the wharfinger to deliver them to the vendee, who went to the wharf, weighed the whole, (x) 2 Bing. N. 0. 151. (y) See Cooper v. Bill, 34 L. J. Ex. 161. (a) 1 B. & P. N. R. 69. TRANSFER TO SUB- VENDEE. 91 and took away several bales, and then became bankrupt, whereupon the vendor ordered the wharfinger not to deliver the remainder. By the custom of trade the charges of ware- housing were to be paid by the vendor fourteen days after the sale. It was held that the vendee had taken possession of the whole, and that the vendor had no right to stop what remained in the hands of the wharfinger. And in Bwanwick V. Sothern (a), Lord Denman, C. J. said, — " The cases on this subject estabhsh the principle that, wherever anything remains to be done by the seller, which is essential to the completion of the contract, a symbolical delivery by transfer in the wharfinger's books will not defeat the right of stoppage in transitu as between buyer and seller. But, where the identity of the goods and the quantity are known, the weighing can only be for the satisfaction of the buyer, as was held iu Hammond v. Anderson (h), and in such case the transfer in the books of the wharfinger is sufficient" (c). Where goods have been re-sold by the vendee, he having a delivery order, which was handed to the sub-vendee, the original vendor's right to stop in transitu on the insolvency of the vendee, was held to be at an end as soon as the ware- houseman acknowledged the transfer to the sub-vendee, even although the goods were not weighed and measured over before delivery. In Hawes v. Watson (d), there was a sale of a quantity of tallow lying at a wharf, and the vendor gave a written order upon the wharfingers to weigh, transfer, and re-house the same. The vendee having re-sold the tallow, he obtained from the wharfingers and gave to the sub-vendee a written acknowledgment that they had transferred the tallow to the account of the sub-vendee, who was to be liable to charges from a given date. The vendee having stopped payment, the vendor gave notice to the wharfingers not to deliver the tallow to the vendee's order. But in an action of (a) 9 A. & E. 900. (e) Whitehoiise v. Frost, 12 East, 614. (6) Ante, p. 90. (d) 2 B. & C. 640. 92 STOPPAGE IN TRANSITU. trover brought by the sub-vendee against the wharfingers, it was held, that after their acknowledgment they held the tallow as the agents of the sub-vendee, and that they could not therefore set up as a defence, a right in the vendor to stop the goods in transitu (e). Section III. — Goods in the Possession of a Carrier or Shipmaster. Where the vendee sends his cart under the charge of his own servant, or sends his own ship under the command of a captain acting directly under the vendee's orders, the goods when packed in the cart, or stowed on board the ship, are then delivered as completely as into the possession of the vendee himself Where the vendor sends his cart, under the charge of his own servant, to deliver goods at the premises of the vendee, Lord Mansfield held, in Blakey v. Dirnsdale (/), that the delivery to the servant, on behalf of the vendee, was sufficient to vest the property in him as to third parties. In this case, the goods had arrived at the premises of the vendee, and part was unloaded from the cart. But as this was a question merely between, the vendee and third parties, and not between the vendor and vendee, the decision does not seem to affect the right of stoppage, if exercised by the vendor before the goods are actually delivered into the vendee's premises, or into his carts or ships. There is no doubt that a delivery of goods on board the consignee's own ship is a delivery to him, unless the consignor protects himself by special terms restraining the effect of such delivery (g). A delivery of goods on board the vendee's own ship when completed, is not afterwards affected by a qualified bill of lading fraudulently obtained from the master, as no con- (e) See Gosling v. Birnie, 7 Bing. 339. (/) Cowp. 664. (g) Per Pattesou, J., 6 Exch. 567 ; and see Coxe v. Harden, 4 East, 211. GOODS IN VESSEL OF VENDEE. 93 dition was imposed at the time of delivery. In Ogle v. Atkinson Qi), the vendor of goods delivered them on board the ship of the vendee, which had been sent by him to receive them as the goods of the latter ; but the vendor wishing to preserve control over them, prevailed upon the captain to sign a biU of lading, in which there was a blank for the name of the consignee, assuring him that it was of no consequence, as the goods were to be delivered to his owner, and the vendor then transmitted the bill of lading to a third person, who was to stop the delivery of the goods to the vendee, unless he accepted certain bills. But the Court held, that the vendee, under such circumstances, was entitled to the goods without accepting the bills, for the blank for the name of the consignee was either immaterial, as represented to the captain, or material as the vendor proposed to make it, and in that case a fraud was practised on the captain, which could not prevail against the consignee. Gibbs, C. J., in his judgment, said that " the goods had not been delivered on board the ship on the terms on which the defendant contended they were delivered, by reason of the circumstances under which the captain was persuaded to sign the bill of lading with a blank for the name of the consignee." A vendor who delivers goods into the vendee's own ship may restrain the effect of such delivery, and preserve his right of stoppage in ti-ansitu, by taking bills of lading for the goods to be delivered to his order, or assigns. In Turner v. The Trustees of the Liverpool Docks (i), the bank- rupts. Barton, Irlam, & Higginson, merchants, at Liverpool, sent orders to Menlove & Co., merchants, at Charlestown, in America, to ship on account of the bankrupts, a cargo of c6tton on board a vessel of the bankrupts, which was sent to Charlestown with an outward cargo, and also to receive the cotton. Menlove & Co. thereupon purchased cotton from (h) 5 Taun. 769, and 1 Marshall, 323. (i) 20 L. J. Exch. 393, and 6 Ex. 543. 94 STOPPAGE IN TRANSITU. time to time, and shipped it on board the bankrupts' vessel. The master of the vessel executed to Menlove & Co. a bill of lading which stated that the cotton was to be delivered at Liverpool ' to order or to our assigns, paying for freight for the cotton nothing, being owners' property.' Menlove & Co. indorsed the bill of lading ' Deliver the w^ithin to the Bank of Liverpool or order.' Afterwards Menlove & Co. sent to the bankrupts an abstract invoice of the cotton, in which they stated that they had shipped the cotton on board the vessel ' by order and for account and risk ' of the bankrupts, and addressed ' to order ' ; and still later they sent to the bankrupts a full invoice, stating that the cotton was shipped by order and for account of Barton, L'lam, & Higginson, the bankrupts, and to them consigned. Menlove & Co., not having sufficient funds of the bankrupts to pay for the cotton, drew bills on the bankrupts for the amount, and wrote to the bankrupts informing them of the drawing of the bills, and desiring them to insure the cotton. Menlove & Co. sold the bills they had so drawn to the bank at Charles- town, and delivered to the bank the bill of lading so indorsed as a security for the payment of the bills, which were ultimately dishonoured and taken up by Menlove & Co. Barton, Irlam, & Higginson became bankrupts before the arrival of the vessel. Menlove & Co., by means of their agent, on its arrival, put in a claim for the cargo. The assignees brought detinue against Menlove & Co.'s agents, who pleaded that the bankrupts were not possessed, and that the plaintiffs were not possessed as assignees. The Court of Exchequer held, that Menlove & Co. had never parted with the property in the cotton to the bankrupts, notwith- standing the delivery on board the bankrupts' own vessel, because Menlove & Co. had at the time of delivery reserved to themselves a jus disponendi, and preserved their rights as unpaid vendors; which the captain acknowledged by signing the bill of lading making the cotton deliverable TRANSFER OF BILL OF LADING. 95 to their order or assigns, although in executing such a bill of lading the captain might have exceeded his authority. It was also held that Menlove & Co. did not, by transferring the bill of lading as security to the bank at Charlestown, lose their property in the goods, so as to prevent their claiming them as against the bankrupts or their assignees. Patte- son, J., in delivering judgment, said that "a delivery on board the vendee's own ship and to his own master is not inconsistent with the vendors annexing terms to the delivery which may enable them to retain a right to claim them, and prevent any delivery if the tei-ms are not complied with " (k). But in another case which arose out of the same bank- ruptcy, it was decided that, although the vendor takes the bills of lading for the goods to be delivered to his own order, where they are shipped on board the vessel of the vendee, yet the right of stoppage in transitu continues only until the bill of lading indorsed by the vendor comes to the posses- sion of the vendee ; for by the transfer of the bill of lading, the right of property as well as of possession passes to the vendee. In Van Casteel v. Booker (I), it appeared that Lyon, Schwind, & Co., foreign factors, by direction of the bankrupts. Barton, Irlam, & Higginson, merchants, at Liver- pool, shipped coffee at Eio, on board the " Vigilant," a vessel belonging to the bankmpts, and bound for Cork and a market. The coffee was obtained partly with funds pro- vided by the bankrupts, but chiefly on the credit of Lyon, Schwind, & Co. An invoice was made out by Lyon, Schwind, & Co., stating that the goods were shipped by order, and on account, and at the risk of the bankrupts. The captain of the vessel signed bills of lading stating that the coffee was shipped by Lyon, Schwind, & Co. ; and was to be delivered (k) See Brown v. North, 8 Exch. 1 ; Jenhyns v. Brown, li Q. B. 496 ; 19 L. J. Q. B. 286 ; Walley v. Montgomery, 3 East, 585. (/) 18 L. J. Exoh. 9. 96 STOPPAGE IN TRANSITU. freight free to their assigns. Lyon, Schwind, & Co. drew upon the bankrupts for the balance of the price of the coffee, and transmitted to them by post a copy of the ia voice and the bill of lading, indorsed in blank. After the shipment and before any act of bankruptcy, the bankrupts, at the request of A. W. Lyon, a partner in the firm of Lyon, Schwind, & Co., signed and delivered at Liverpool, a letter addressed to a third party in the following terms : — " According to arrange- ment with Mr. A. W. Lyon, we request that you will hold to his order the bills of lading that have to come forward for the cargoes per " Vigilant," which vessel will be laden on our account by Messrs. Lyon, Schwind, & Co., of Rio, until the drafts drawn and to be drawn against said cargoes are paid." After an act of bankruptcy the bill of lading arrived by post, and was delivered in pursuance of the above letter to the third party, who handed it to A W. Lyon ; and he, after the fiat, pledged it for 6,000Z. with the plaintiffs, who were innocent and bond-fide indorsees of the biU of lading. Sub- sequently to this pledge, the " Vigilant " arrived, and the assignees took possession of the cargo. The plaintiffs brought trover against the assignees. The Court of Exchequer held, under a plea of not possessed, that Lyon, Schwind, & Co. were to be considered, though partially paid, as vendors to the bankrupts, and that, from the form of the bill of lading, primd facie the goods were shipped to be carried for them, in which case the right to stop in transitu, and the power of rescinding the contract, would continue until the bill of lading was received by the vendees, until which time it would be also competent for the vendees, though voluntarily and in contemplation of bankruptcy, to make the agree- ment actually made with A. W. Lyon. It was also held, that if the shipment had that effect, it was a question for the jury, whether the agreement between the bankrupts and A. W. Lyon was such as to authorise him to transfer the bills of lading for the purpose of raising money. But that. GOODS IN VESSEL OF CONSIGNEE. 97 notwithstanding the form of the bill of lading, it was a question for the jury whether the coffee was put on board to be carried for and on account of the vendees, in which case the shipment on board the vendees' own ship would be final delivery, and any subsequent alteration of the contract would be void as against the assignees, if a fraudulent preference. At the trial, Rolfe, B. said that stoppage in transitu was out of the question, for that the delivery on board the consignees' own ship, under the circumstances, amounted to a taking possession. The jury found for the defendants. On a motion for a new trial Parke, B. said, — " Here it seems on the facts that the goods were shipped on board the bankrupts' own ship, (which in general would be a complete delivery to them,) but under a bill of lading making them deliverable to order of the consignors ; and therefore the property would not vest until the bill of lading was delivered to and accepted by the consignees." " The goods were shipped under the bill of lading, which at first made them deliverable to the assigns of Lyon, Schwind, & Co. ; and if the effect of that was to preserve a right to stop in transitu, must not that right have subsisted till determined by the subsequent dealing with the bill of lading ? " " If it were not for the bill of lading there would be no doubt at all that the ship- ment at Rio was a complete delivery to the vendees. Goods shipped on board ship are generally delivered subject to a right of stoppage in transitu, but there is a distinction between a chartered ship and a ship the consignee's own ; and there is a further distinction between a ship bound for a particular port and a ship bound for a market, and subject to the orders of the consignee as to where it shall go, so that it may be that the goods never will come more to the hands of the consignee than they do by the shipment." " The question depends upon one fact, whether the coffee was put on board, to be carried for and on account and risk of the bankrupts, or not 1 If it was, the delivery on board put an end to the 98 STOPPAGE IN TRANSITU. right of stoppage in transitu, for the delivery in the pur- chaser's own ship is a final delivery at the place of desti- nation, especially where, as in this case, its final port of discharge was undetermined, and it required further orders to give the vessel its destination. On that supposition the goods were at their journey's end ; for to adopt the definition of Paley, in his treatise on Principal and Agent, 352, it was not intended necessarily that they should ever come other- wise iato the possession of the buyer, than by being in that of the agent for carrying, the master. Now, whether they were delivered on board to be carried for the vendee depends very much on the form of the bill of lading. We had to consider that question in the case of Ellershaw v. Magniac, unfortu- nately not- reported, and lately in Wait v. Balcer (m), in which case the fact of making the bill of lading deliverable to the order of the consignor was properly held decisive to show that no property passed to the consignee, it being clearly intended by the consignor to preserve his title to the goods until he did a 'further act. If the goods were really delivered on board to be carried for and on account of and at the risk of the bankrupts, they had arrived at their journey's end when they were delivered on board, and the right of stoppage in transitu, and also the power of rescinding the contract by the bankrupt, so as to defeat the rights of his creditors, were both at an end. But if the jury should think, from the form of the bill of lading, that it was intended to preserve the rights of the unpaid vendors, until some further act was done by transferring the bill of lading, the right to stop the goods in transitu, and also the power of rescinding would continue until the bill of lading indorsed reached the hands of the bankrupts." A new trial was, however, granted on another point, and the jury found for the defendants on the question of the property in the goods being intended to vest at once in the bankrupts. (m) 17 L. J. Exch. 307. GOODS IN CHARTERED VESSEL. 99 Where the delivery of goods was made in Russia on board a ship chartered by the consignee, (and by the law of that country the consignors of goods maj'', in case of the bank- ruptcy of the consignee, sue out process to retake their goods on board ship,) and the captain had signed bills of lading to the order of the consignors without their suing out process ; it was held, that he was bound to deliver the goods to the order of the consignors, and not to the assignees of the consignee, who had become bankrupt. Bothlingk & Co., of St. Petersburgh, in pursuance of directions from one Crane, of London, and as factors for him, shipped a cargo of Russian commodities at St. Petersburg, on board a ship chartered by Crane, and sent invoices thereof, and a bill of lading of part to him ; but learning before the ship's departure that some bills, drawn by them on him in consequence of a previous transaction, were unpaid, they procured from the master of the vessel bills of lading to their own order, and sent them to their agent in London, and informed Crane that he might have the bills of lading upon giving security to their agent for payment of the bills of exchange to be drawn for the amount of the goods, otherwise their agent would sell the goods on Crane's account, and apply the proceeds in dis- charge of the bills of exchange. Crane, in fact, had com- mitted an act of bankruptcy before any of th* goods were shipped. On the arrival of the ship in London, his assignees demanded the goods of the master, and offered to pay the freight, &c. ; but the master delivered them to the agent of Bothlingk & Co., on their account, in conformity to their indorsement of the bills of lading. The assignees of Crane brought an action against the master ; and the Court held that the law of Russia in this case ought to prevail, although Bothlingk & Co. had not actually taken the goods out of the ship, or instituted legal process for, the recovery of them ; considering the master's signature of bills of lading to their order to be equivalent to a stopping in transitu H 2 100 STOPPAGE IN TRANSITU. or re-delivery to them, and to have rendered it unnecessary for them to have recourse to the compulsory process of the law (n). Although in this case Lord Kenyon gave the assignees of the bankrupt vendee the full benefit of the argument that delivery was complete in a case of common affreightment, yet it was afterwards decided that the delivery of goods on board a ship chartered by the vendee for a particular voyage is not such a delivery as prevents the exercise of the right of stoppage in transitu ; in such a case the master, as servant of the shipowner, is merely an agent to forward ; and the transitus continues until the arrival of the goods at the port of destination, and deliveiy to the vendee. In Bothlingk v. Inglis (o), Crane, a trader in England, chartered a ship on certain conditions for a voyage to Russia, and to bring goods home from Bothlingk & Co., his correspondents at St. Peters- burg, who. accordingly shipped the goods on account and at the risk of the freighter, and sent him the invoices and bills of lading of the cargo ; but, on hearing of Crane's insolvency, Bothlingk & Co. sent one of the bills of lading to London, and the goods were stopped. The Court held that the delivery of the goods on board such chartered ship did not pre- clude the right of the consignor to stop the goods while thus in transitu to the vendee, in case of his insolvency in the mean- time before actual delivery, any more than if they had been delivered on board a general ship for the same purpose. Lawrence, J., in delivering judgment, said, — "For the benefit of trade, a rule has been introduced into the common law enabling the consignor, in case of the insolvency of the consignee, to stop the goods consigned before they come into the possession of the consignee; which possession means an actual possession (p). {n) Inglis v. Usherwood, 1 East, 515. (o) 3 East, 384. (p) Per Ml". Justice BuUer, in Ellw v. Bunt, 3 T. E. 464. Ante, p. 66. GOODS IN CHARTERED VESSEL. 101 That the possession of a carrier is not such a possession has been repeatedly determined ; and the question now is, whether the possession of the master be anything more than the possession of a carrier, and not the actual possession of the bankrupt 1 As to this, it appears that XJsherwood, the master, contracted with the bankrupt to proceed from hence to St. Petersburgh, and to bring in his ship a cargo of goods which Crane engaged should amount to the tonnage of the ship ;-this does not differ from a similar contract entered into by the consignor, by the direction of the consignee, at the loading port, for the conveyance of the goods from him to the vendee ; in which case it would hardly be contended, that a delivery by the consignor to the master of the ship, for the purpose of carriage, would be such a delivery to the vendee as to prevent the right of stoppage in transitu. In each case the freight would have to be paid by the con- signee ; in each case the ship would be hired by him, and there would be no difference, except that, in this case, the ship, in consequence of the agreement, goes from England to fetch the cai'go ; in the other case, the vessel would bring it immediately from the loading port. Both in the one case and in the other, the contract is with the master for the carriage of goods from one place to another, and until the arrival of the goods at the port of destination, and delivery to the consignee, they are in their passage or transit from, the consignor to the consignee. If a man contract with the owner of a general ship to take goods which are equal to half the tonnage of the ship, and the master complete the loading of the ship with the goods of others, there would be no question but there might be such a stoppage ; and surely it will not be said, that the right of stoppage depends on the quantity of goods consigned. In support of the defendant's claim, the case of Fowler v. McTaggart (g) has been relied iq) Cited 10 East, 522; and 7 T. T!. 442. 102 STOPPAGE IN TEANSITU. on. But that case is very distinguishable from this. There the bankrupts were in possession of a ship, let to them for a term of three years, they finding stock and provisions for the ship, and paying the master ; during whiqh time they were to have the entire disposition of the ship, and the complete control over her. The ship had been one voyage to Alex- andria, and had the goods put on board her to carry them on another voyage to the place ; not for the purpose of con- veying them from the plaintiffs to the bankrupts, but that they might be sent hy the bankrupts upon a mercantile adventure, for which they had bought them. There the delivery was complete. And the facts of that case differ widely from this, where Crane had no control over the ship, and had merely contracted with the master to employ his ship in fetching goods for him " (r). In UUershaw v. Magniac (s), the plaintiff, a merchant at Leeds, contracted with the London partner of a firm carry- on business as merchants in London and Odessa, for the purchase of a quantity of linseed, to be paid for, half by drafts on the buyer at three months from the time of the advice of the sale reaching Odessa, and the remainder at three months from the date of shipment. The London partner forwarded the contract to the Odessa partner, and the latter drew upon the plaintiff two bills of exchange on account of the linseed, which were duly accepted and paid when due. In order to carry the linseed, the plaintiff char- tered a vessel, which was to proceed with an outward cargo to Odessa, and there take on board, from the agents of the freighter, the linseed, and being so loaded, proceed to Hull, and deliver the same to the order of the freighter on being paid freight. The vessel having arrived at Odessa, the master applied for the linseed, and produced a copy of the charter-party, when he was informed that the cargo should (r) See Saville v. Campion, 2 B. & Aid. 503 ; Ourney v. Behrend, 3 E. & B. 622 ; 23 L. J. Q. B. 265. (s) 6 Exch. 570, u. GOODS IN CHARTERED VESSEL. 103 be shipped in due time. A letter was also sent by the Odessa partner to the London partner, informing him of the arrival of the vessel, and stating that a portion of the linseed was ready for her. The Odessa house commenced loading the vessel ; but, not being able to procure the entire quantity of linseed, the master consented to receive wheat in substi- stution thereof, which was accordingly shipped. When the loading of the linseed was completed, the Odessa partner wrote to the London partner, stating that he should have the bill of lading by the next post. The Odessa partner after- wards procured the master to sign bills of lading, making the goods deliverable " unto order, or to assigns," and indorsed the bills of lading for value to a third person, who transferred them to the defendants. The Court held, under the above circumstances, that there was no such delivery of the goods as to vest the right of property or possession in the plaintiff. In Wait V. Baker (t), the defendant, a corn factor, residing at Bristol, wrote to one Lethbridge, at Plymouth, request- ing samples of barley, and to make him an offer of a cargo. Lethbridge wrote to the defendant, and sent samples of barley, and offered to sell him from 400 to 500 quarters £ o. b. at Kingsbridge, or some neighbouring port, for a certain sum, for cash on handing bill of lading, or by acceptance. The defendant accepted the terms, subject to Lethbridge's reply. Lethbridge acceded to the defendant's proposal, and requested the defendant to give him instruc- tions about the vessel, in order to get her correctly insured. Lethbridge sent the defendant the. charter-party, (not under seal,) of a vessel in which the barley was shipped, and which was made in Lethbridge's name. The vessel was loaded with barley, and Lethbridge received from the master the bill of lading, by which the cargo was deliverable at Bristol to the order of Lethbridge or assigns, on payment of freight. (I) 2 Exchi 1, and 17 L. J. Exoh. 307. 104 STOPPAGE IN TRANSITU. Subsequently Lethbridge called at the defendant's counting- house at Bi-istol, and left the invoice and unindorsed bill of lading ; he afterwards called again, when a dispute arose as to the quality of the barley; the defendant, after some further dispute, tendered the amount of the cargo in money to Lethbridge, who refused to accept it, but took away the bill of lading, and indorsed it to the plaintiffs. The defen- dant, on the arrival of the vessel, claimed and obtained part of the cargo ; but the plaintiffs, on producing the bill of lading, obtained what remained, and paid the freight. The juiy found that the defendant did not refuse to accept the barley from Lethbridge ; that the tender was unconditional ; and that he was not an agent entrusted with the bill of lading by the defendant. Trover was brought by the plain- tiffs for the value of the barley so obtained by the defendant, and it was held by the Court of Exchequer that no property in the cargo passed to the defendant, either by the transac- tion at Bristol or by the shipment of the cargo on board the vessel by Lethbridge, and that therefore, the plaintiffs were entitled to recover. Parke, B., in deliveiing judgment, said, — " It is clear the original contract between the parties was not for a specific chattel, but would be satisfied with the delivery of any 500 quarters of corn answering to what were agreed to be delivered. Therefore, by the original contract, no property passed. Then in order to deprive the original owner of the property, you must show that at some subse- quent period the property passed. Now, in this case it is said that the deUvery on board ship is equivalent to a delivery to the vendee, because the ship was engaged by Lethbridge as agent for the defendant. But assuming that were so, the actual delivery on board was not a delivery to the defendant, but a delivery to the captain, to be carried under a bill of lading. Now, the bill of lading indicates for whom the master of the vessel is to cany the goods ; he agi'ees thereby to carry them as agent for and on account of GOODS IN CHARTERED VESSEL. 105 Lethbridge, and to deliver them to Leth bridge, if he does not make an assignment of the bill of lading and to deliver to "the assignee of the bill of lading if it is afterwards assigned. Then the master continues in possession of the property, not as in the case of an ordinary common carrier, but as a person carrying on behalf of Lethbridge. Then you find, by looking at the contract, that for some purpose or another, and there is no breach of duty or improper act on the part of Leth- bridge, he stipulates that the price is to be paid on the delivery of the bill of lading by which Lethbridge is to preserve the control over the property. I think it follows that the 500 quarters of corn being delivered to the captain to be carried for Lethbridge, are not in the same situation that -500 quarters of corn delivered to a common carrier by order of the consignee would be ; and therefore that the act of delivery did not pass the property in this case." But where the ship had been chartered by the consignees for a term of years, and the captain was hired and paid by them, so that they had the exclusive control of the vessel, and goods were put on board to be sent by them on a mercantile adventure, for which they had been bought, it was held that the consignor could not stop them in transitu on the insolvency of the consignees, and that the delivery of the goods to their order on board such ship had the same effect as a delivery into their warehouse. In Fowler v. Mc Tag- gart (u), the defendants had shipped a quantity of tobacco by order of Hunter & Co., the bankrupts, on board a vessel chartered to the bankrupts for three years, and in which the goods in qiiestion were to be carried out to Alexandria, to which port the vessel had been one voyage. The goods were shipped, and the mate's receipt given for them, and an invoice made out- by the vendors in name of the vendees. The vessel was, by contrary winds, detained at Portsmouth. (u) Cited 10 East, 522, and 7 T. R. ii2. 106 STOPPAGE IN TRANSITU. The vendees having become bankrupt, the vendors pro- cured bills of lading from the captain to themselves, gob possession of the tobacco, re-landed, and disposed of it. It was held, that the shipping on board the vessel thus chartered by the vendors was an actual delivery, transferring the property of the goods, and divesting the vendors of the right of stoppage in transitu. Where goods are delivered to a vendee at a wharf, and he ships them there in his own name, the vendor cannot after- wards stop them in transitu. In Wohle v. Adaims (x), Noble, of London, bought of Cross & Co., of Glasgow, goods for which he paid by bill. The goods were sent by Cross & Co. to Noble, the invoice and receipt of the shipping company being made out in the name of Noble. Adams, the com- pany's wharfinger in London, refused to deliver the goods to Noble, who tendered freight and charges, because Cross & Co. had given notice to stop. The case chiefly turned on an alleged fraud, and on that ground it was decided in favour of Cross & Co. But as regards the question of delivery, Gibbs, C. J. said that "he inclined to think the vendors had lost their right to stop in transitu. They had not taken a receipt from the Glasgow company to theTiiselves, which they might have done, but had suffered them to give an absolute and unconditional receipt to the plaintiff." On a motion for a new trial, he said that " although he had reserved the point of stopping in transitu, he was of opinion, and the Court concurred with him, that there was no pretence for exercising that right. The shipping company at Glasgow had acknow- ledged the receipt of the goods from the plaintiff, which showed that the delivery to the latter from Cross & Co. was complete. If Cross & Co. had taken a receipt to themselves from the owners of the vessel, the case might have been otherwise" {y). {x) 2 Marshall, 368. ()/) See Frarjmio v. Lmic/, i B. & C. 219. GOODS IN VESSEL NAMED BY VENDEE. 107 But where goods are by the contract to be delivered on board a vessel named by the vendee, the vendor may preserve his right of stoppage in transitu by taking a receipt from the person in charge of the vessel, stating that the goods are shipped on account of the vendor. In Craven v. Ryder (z), the contract was for the sale of some hogsheads of sugar by Craven to French, to be delivered free on board a British ship. Craven put the sugar on board the defendant's vessel, which was that named by French, but he retained the lighterman's receipt, which stated that the goods were shipped for and on account of Craven. French became insolvent, and the lighterman demanded the goods on the part of Craven, tendering the freight and charges and producing the receipt. But French having in the interim sold to Caldas, he had gone to the shipmaster, who inadver- tently gave him a bill of lading. In the course of the trial the lighterman proved that he had adopted a more precise form in his receipts . granted to the vendors, for the purpose of giving the shipper a command over the goods till the lighterman's note was, according to the usual course of trade, given up in exchange for the bill of lading. The jury found for the plaintiff, the vendor ; they were of opinion that it was contrary to the course of business, and to the defendant's duty, to give up the bill of lading without the receipt ; and that the defendant had received the sugar on account of Craven. On a motion for a new trial, Gibbs, C. J., in refusing to grant a rule, said, — " Independently of the particular form of the receipt, I take it that the regular practice is, that the person who is in possession of the receipt is alone entitled to the bill of lading ; and the captain, therefore, ought not to give the bill of lading except to the person who can give the receipt in exchange ; consequently the person holding the receipt has a control over the goods till he has exchanged the receipt for a bill of lading." (s) 6 Tauu. 433. and 2 Marshall, 127. 108 STOPPAGE IN TRANSITU. Where no receipt for goods delivered on board ship has been granted, though required by the vendors, a bill of lading granted to the vendee does not determine the transitus, so as to take away the right of stoppage. In Ruck V. Hatfield (a), goods were sold ' free on board,' and the vendee accepted a bill drawn upon' him for the price. Upon the shipment, the agent of the vendors demanded a receipt, acknowledging that the goods were shipped on account of the vendors. The captain being absent, the mate refused to sign such a receipt ; and on the following day the captain signed bills of lading to the vendee's correspondent at Hamburgh. On the vendors again tendering a similar receipt, the captain refused to sign it. The question was, whether the delivery to the vendee was complete, so as to prevent the vendors exercising the right of stoppage in transitu ; and the jury returned a verdict in favour of the vendor. An application for a new trial was refused on the ground that the transitus was not at an end, but that on the insolvency of the vendees the vendors were entitled to stop the goods. Lord Tenterden (b) cites this case as an authority that under the circumstances the vendor retains his rights, " at least as against the master of the ship," so that it appears he did not consider it clear that, as against the vendee, the vendor could retain any, control after ship- ment (c). But where the shipment is a complete delivery to the vendee within the terms of the contract, a receipt taken by the vendor will not continue his right to stop the goods in their passage to the vendee. In Cowasjee v. Thompson (d), goods contracted to be sold and delivered ' free on board,' to be paid for by cash or bills, at the option of the vendees^ (a) 6 B. & Al. 632. (6) Abbott on Shipping, 430. (c) Blackburn on Sale, 146 ; soo Schuster v. McKcllar, 7 E. & B. 704. (d) 5 Moore P. C. C. 165. GOODS SPECIALLY CONSIGNED. 109 were delivered on board, and receipts taken from the mate by the lighterman, employed by the vendors, who handed the same over to them. The vendees were apprised of the delivery, and they elected to pay for the goods by a bill, which the vendors having drawn, was duly accepted. The vendors retaijied the mate's receipts for the goods, but the master signed the bill of lading in the names of the vendees, who, while the bill they accepted was running, became insol- vent. The Judicial Committee of the Privy Council held, that in such circumstances, trover would not lie for the goods, for that on their delivery on board the vessel, they were no longer in transitu, so as to be stopped by the vendors ; and that the retention of the receipts by the vendors was immaterial, as after their receiving payment by a bill, the receipts of the mate were not essential to the transaction, as between vendor and vendee. In Evans v. Nichol(e), where a manufacturer at Newcastle consigned goods to his factors in London, specifically to meet a bill drawn upon them, and transmitted to them a receipt signed by the mate of the vessel, acknowledging the goods to have been received on board to be delivered to them, it was held that the appropriation was complete, and that the delivery might be enforced by the consignees. In Bryans Vi Nix (/), where a corn-merchant at Longford, who had been in the habit of consigning cargoes of corn to his factors at Liverpool, and obtaining from them acceptances on the faith of such consignments, obtained from the masters of two canal boats, receipts signed by them, by which goods were made deliverable to an agent of the shipper in Dublin, in care for, and to be shipped to, the consignees at Liverpool, who had accepted a bill of exchange on the faith of the con- signment ; .it was held, that the boat receipts were evidence of an intention on the part of the consignor at the time the («) 4 Scott, N. R. 43. _ (/) 4 M. & W. 775. IJO STOPPAGE IN TRANSITU. cargoes were put on board to vest the property in the con- signees, and that delivery might be enforced by them. In giving judgment, Parke, B. observed, — " If the intention of the parties to pass the property, whether absolute or special, in certain ascertained chattels is established, and they are placed in the hands of a depositary, no matter whether such depositary be a common carrier or ship- master, employed by the consignor, or a third person, and the chattels are so placed on account of the person who is to have that property, and the depositary assents, it is enough, and it matters not by what documents this is effected." If bills of lading are taken by the vendor stating that the goods are shipped on account of the vendee, the delivery is complete, and the vendor cannot afterwards stop the goods in transitu. In Meletopulo v. Ranking {g), upon a question in chancery between the consignees of a bill of lading and the consignor, as to the right of the latter to stop in transitu, it was held, in the absence of contradictory evidence, that the bill of lading, stating that the agent of the vendee shipped the goods by his order, was conclusive as to the fact of delivery to the vendee. Lyndhurst, L. C, in giving judg- ment, said, — " The facts are these, Sargint commissioned the plaintiff to purchase at different places a cargo of currants which were to be shipped at Vostizza for England. The currants were accordingly purchased and sent to Vostizza, and a vessel was chartered by Sargint, who gave directions to send them to Banking, the defendant. If the plaintiff had been ordered to buy and ship them for England, he might have stopped them in their transit, because the transit would not have been ended until his order was completed. The currants were to be delivered at Vostizza, and then shipped. Drexinger resided at Vostizza ; he was the agent of Sargint ; he happened to be ill at the time the goods were {g) 6 Jur. 1095. GOODS SHIPPED UPON CONDITION. Ill shipped, in consequence of -whicli the plaintiff put them on board. If Drexinger had been well, he would probably have put them on board, but it makes jio difference which of them did it. The sole question is, whether there was a delivery to Sargint at Yostizza. The circumstances are quite recon- cileable with either view of the case. The bill of lading is the material fact, and that states that the goods were for Sargint, and that Drexinger shipped them. They were put on board by the plaintiff, in fact, but the bill of lading is the only evidence to show what the real nature of the transac- tion was. The question is, by whom they wei'e shipped, not who put them on board ; and it is clear from the bill of lading that they were shipped by Drexinger for Sargint. There is no evidence of any application for the bill of lading, or for any receipt of it by the plaintiff ; and the absence of that satisfies me that the shipment was made by Sargint. There is, therefore, an end of the right to stop in transitu. The plaintiff was not the consignor, but Sargint ; the plaintiff may be considered as the consignor of the goods to Vostizza, but it stopped there, and there was no right remaining in him afterwards to stop the goods in their further transit to England " (A). If th-e bills of lading are indorsed in blank, but delivery to the vendee is to be made upon performance of a condition, such as acceptance of bills of exchange, the vendor Avill .preserve his right of stoppage in transitu; and the vendee cannot confer a greater right of property in the goods than he himself possessed, by a sale to a hond fide purchaser without notice. In Key v. Cottesworth (i), the defendants who were commission agents in London, wrote in 1845 to the plaintiff, a merchant, at Madras, as follows : — " At the request of Messrs. Kilgour & Leith, of Glasgow, we beg to (h) See Wright v. London Dock Company, 5 Jur. N. S, 1411 ; Heart v. Dresser, 7 H. L. Cas. 290; 5 Jur. N. S. 371 ; 28 L. J. Ch. 611. (i) 7 Exch. 595 ; 22 L. J. Exch. 4. 112 STOPPAGE IN TRANSITU. open a credit in your favour to the extent of 1,500?., to be applied to the execution of an order they have given you for Madras handkerchiefs, and for cost of which, as produced, you will draw on us at the customaiy rate on forwarding bills of lading to our order." In consequence of this letter two orders given by Kilgour & Leith were executed by the plaintiff, who forwarded the goods and bills of lading to the defendants, and they accepted and paid bills drawn on them in accordance with the letter. In February, 1847, Kilgour & Leith wrote to the plaintiff, inclosing patterns for a third order, and saying, " You will draw for cost, and consign goods as before." The plaintiff executed this order, and shipped the goods on account of Kilgour & Leith, and sent to the defendants the invoice and bill of lading, inclosed in a letter, stating that he had as usual drawn upon them at six months for the equivalent of the amount of invoice. The bill of lading stated the goods to have been shipped by the plaintiff and to be deliverable to the defendants or their assigns, on payment of freight. The invoice stated that the goods were consigned to the defendants on account and risk of Kilgour & Leith. The letter containing the bill of lading and invoice was received by the defendants on the 26th of August, and the goods arrived in London on the 21st of October. On the same day, the plaintiff's agent received a bill drawn upon the defendants against the goods, but on presentment the defendants refused to accept it. On the 27th of October, Kilgour & Leith stopped payment. The defendants took possession of the goods under the bill of lading, and sold them, retaining the proceeds. In March, 1848, the plaintiff gave the defendants notice that they claimed to stop the goods in transitu, the bills not having been accepted. In an action brought to recover the proceeds of the sale as money received to the use of the plaintiff ; it was held, first, that it was a question for the judge, and not for the jury, to decide whether, under the circumstances, the property in the goods REFUSAL OF SHIPMASTER TO DELIVER. 113 vested absolutely in Kilgour & Leith, or merely conditionally on the acceptance of the bill by the defendants.' Secondly, that the contract was not subject to the condition, either precedent or subsequent, that the defendants should accept the bill, but that the property in the goods vested abso- lutely in Kilgour & Leith, upon the delivery on board the ship and transmission of the bill of lading to the defendants. Also, that if the plaintiff had intended to preserve his right of property in the goods until the bill was accepted, he should have transmitted the bill of lading indorsed in blank to an agent, to be delivered over only in the event of the bill being accepted Qc). If bills of lading are presented to the master by two dif- ferent holders, and he delivers to one, a right of action against him accrues thereby to the authorised holder, as it is for the master to inquire who has the best right. Dr. Lushington in delivering judgment in the case of the Tigress (Q, said " it was objected that assuming the vendors had a right to stop in transitu, and had duly asserted that right, yet the master of a ship was guilty of no breach of duty in refusing to deliver ; he was simply retaining the custody of the wheat for the right owner, as soon as the claim should be established. However, to this argument the learned Judge could not accede, for he thought there were cases without number to show that the right to stop means the right not only to countermand delivery to the vendee, but to order delivery to the vendor. Were it otherwise, the right to stop would be useless, and trade would be impeded. The refusal of the master to deliver upon demand is, in cases like the present, sufficient evidence of conversion (m). The master might indeed sometimes suffer for an innocent mistake ; but (k) See Sheridan v. New Quay Company, 4 C. B. N. S. 618 ; 5 Jur. N. S, 248 ; 28 L. J. C. P. 58. (i) 32L. J. Adm. 97. (ot) Wilson V. Anderten, 1 B. & Ad. 450. I 114 STOPPAGE IN TRANSITU. he could always protect himself from liability by filing a bill of interpleader in Chancery." In Thonvpson v. Trail {n), the vendor shipped, by order of the vendee, goods which by the bill of lading were con- signed to a third person at a foreign port. Before the vessel sailed the vendee stopped payment, and the vendor thereupon required the captain to deliver up the goods, but did not tender the freight or expense of unloading. The captain refused on the ground that he had signed a bill of lading for the consignee. This was held sufficient evidence of a con- version ; and the fact that the vessel was named" by the consignee made no difference as to a stoppage in transitu. Section IV. — Goods Delivered to an Agent of the Vendee. Where goods are actually delivered to the servant of the vendee, or his clerk or warehouseman, or any particular agent employed by him to receive delivery, the vendor is divested of the right of stoppage, as if the delivery were made to to the vendee himself. In Valpy v. Gibson (o), the facts were as follows : — Brown, of Birmingham, ordered goods for the Valparaiso market of Gibson & Co., of Manchester, who duly forwarded the goods to shipping agents at Liverpool, employed by Brown to receive and forward them to Val- paraiso, and the invoice of the goods was sent to Brown, the vendee. The goods were shipped by the agents on board a vessel bound for Valparaiso, but were afterwards re-landed by order of a member of the house at Valparaiso to which they were consigned by Brown, and sent back to Gibson & Co. to be re-packed in smaller cases. Before the day of payment arrived, and while the goods were still in the hands of the vendors for the purpose of being re-packed. Brown became bankrupt. The vendors having kept the goods. Brown's {n) 2 C. & P. 334 ; 6 B. & C. 36 ; 9 D. & B. 31, (o) 4C. B. 887. DELIVERY TO AGENT OF VENDEE. 115 assignees brought trover. The Court held that the possession of the goods as well as the property had vested absolutely in Brown, the vendee, before they were re-delivered to Gibson & Co. for the purpose of being re-packed ; and that by such I'e-delivery, the latter acquired no new rights as unpaid vendors. The transitus was determined by the original delivery to the shipping agents of Brown, the vendee; and the right of Gibson & Co., the vendors, to stop the goods was gone when an act of ownership was exercised over them, by re-landing them, and sending them to be re-packed. In delivering the judgment of the Court, Wilde, C. J. said, — " The question is whether the defendant had a right to retain the goods. It was contended, on the argument, that the defendants had such right, as unpaid vendors in actual pos- session of the goods sold, the vendee being insolvent, or in respect of a right of stoppage in transitu. It was also con- tended that the terms of payment for the goods not having been definitively settled, there was no complete contract, and that there had not been a binding acceptance of the goods. On the part of the plaintiffs, it was insisted that the property and possession of the goods had vested absolutely in Brown, the vendee, before they were re-delivered to the defendants at Manchester ; and that the re-delivery gave no new right to the defendants." — " The right which it was contended the defen- dants had, a.s vendors, in the actual and lawful possession of the goods, on the insolvency of thq vendee, cannot, we think, be sustained. The goods being sold on credit, and the com- plete property and possession having vested in Brown, they became his absolutely, without any lien or right of the vendors attaching to them, any more than on any other property of Brown ; and their delivery to the defendants to be re-packed, could not have the effect of creating a lien for the price, without an agreement to that effect." If intermediate delivery is received by an agent of the vendee, who has authority to receive the goods and to forward I 2 116 STOPPAGE IN TRANSITU. them to a new destination, the vendor's right of stoppage in transitu is at an end. In Leeds v. Wright (p), where the general agent of the bankrupt, with power to export to such markets as he should think fit, purchased goods in name of the bankrupt, and directed them to be sent to a packer in London ; it was held that after their arrival, the goods in the packer's hands were no longer in transitu, and that' the vendors had no right to stop them. And in Scott v. Pettit (q), where the bankrupt had given general orders to a carrier to send all goods for him to the defendant's house to be packed, and the goods were accord- ingly sent to his house ; it was decided that there being no fixed ulterior destination, the packer must be considered not as an agent to forward, but as one to hold the goods subject to the vendee's orders, like a warehouseman, and consequently that on their delivery to the defendant the transitus was ended (r). Where the goods are so far on their journey, that they are in the possession of a third party until orders amve from the vendee as to their future destination ; and if without orders they would continue stationary, the delivery to the vendee is complete. In Diieon v. Baldwin (s), goods were ordered by the insolvents to be forwarded to Metcalf, of Hull, for the purpose of being shipped for Hamburgh ; and it was proved that it was usual for Metcalf to keep such goods till he received orders from the insolvents, and then to do with them whatever the insolvents ordered ; it was held, that the goods had so far got to the end of their journey, for it was then necessary that new orders should be given to put them again in motion, and to give them an ulterior destination, and that without such orders they would be stationary. {p) 3 B. & P. 320. (q) 3 B. & p. 469. (r) See also Smith v. Hudson, 34 L, J. Q. B. 145. (k) 5 East, 175. DELIVEEY INTO DEPOSITORY OF VENDEE. 117 Delivery to a wharfinger whose warehouse is used by the vendee as the depository of his stock, there to remain until disposed of, is equivalent to delivery made into the vendee's own warehouse, and the transitus terminates on the arrival of the goods at such depository. In Richardson v. Goss (t), Richardson, of Newcastle, shipped goods for London to the order of one Wilson. Richardson finding that Wilson was in insolvent circumstances, applied at the defendant's wharf in London, where the goods had in the meantime arrived, and where goods shipped for Wilson were usually landed and kept till sent for by him, tendering the freight and charges paid for the goods, and requiring dehvery of them, which was refused, unless upon payment of a general balance due from Wilson to the defendant for wharfage. Chambre, J. said, — " If it were necessary to decide whether the transitus were at an end, I should strongly incHne to think, that if a man be in the habit of using the warehouse of a wharfinger as his own, and make that the depository of his goods, and dispose of them there, the journey will be at an end when the goods arrive at such warehouse " {u). In Wentworth v. Outhwaite (x), Hill & Co., of Hull, having sold to Weatherall a quantity of flax, it was sent by railway, and arrived at the defendants' warehouse at Leeds, where it was customary for the defendants to receive goods gent for Weatherall, and to give him notice of their arrival, and for him to send his carts for them. Weatherall sent his cart and took away part of the flax. Shortly afterwards Hill & Co. sold to Weatherall more flax, and a quantity of other goods. The flax was sent by railway to Leeds, and arrived duly at the defendants' warehouse ; the other goods were sent by sloop to Boroughbridge. On the arrival of this flax at the defendants' warehouse, notice was sent to Weatherall by (t) 3 B. & P. 119. (m) See Atkins v. Barwick, 1 Str. 165. (X) 10- M. &W. 436. 118 STOPPAGE IN TRANSITU. letter, which stated that ujiless the goods were sent for, they would remain there at warehouse rent. WeatheraU sent his cart and took away part of the flax last sent, and left in the warehouse part of both parcels. WeatheraU became insol- vent, and the goods which had been shipped, for Borough- bridge were stopped in transitu at Hull ; and on the same day the flax remaining at Leeds of the second parcel was stopped by Hill & Co. The sheriff entered and seized all the flax in the defendants' warehouse sent by Hill & Co., under an execution against WeatheraU". There was also a stoppage by Hill & Co. of the remaining quantity of the first parcel sent. The Court held that, under these circum- stances, the transit was at an end on the arrival of the goods at the defendants' warehouse ; also, that the stoppage of the goods which had been shipped to go to Boroughbridge had not the effect of revesting the property in the parcel of flax which had been sent to the' defendants' warehouse at Leeds, although comprised in one joint contract with the other goods. In Rowe v. Pickford (y), where a trader in London was in the habit of purchasing goods in Manchester, and of exporting them to the continent soon after their arrival in London ;, but having no warehouse there, the goods so consigned to him remained in the waggon office of the carriers, until they were removed for the purpose of being shipped ; it was held, that the assignees of the trader, who had become bankrupt, were entitled to recover the goods deposited with the carriers, and that the right of the consignor to stop in transitu ceased on the arrival of the goods at the waggon office of the carriers in London (z). But if goods are shipped for a particular port, then to be sent to the vendee by land, and a wharfinger receives them on the ship's arrival, for the purpose of forwarding them to (y) 8 Taun. 83. (») See JDutimi v. Solor^onson, 3 B. & P. 582. DELIVERY OF GOODS TO BE FORWARDED. 119 the vendee, the vendor's right of stoppage continues until the goods have reached the possession of the vendee (a). As the right' of stoppage in transitu is at an end -when the vendee does any act which is equivalent to taking possession of the goods when they are in the hands of a carrier, the right is not kept alive by the fact that the carrier claims to have a lien on the goods against the vendee (b). But a mere commencement of delivery, where no act is done by the vendee equivalent to taking possession, and the carrier refuses to deliver the goods, and retains them until his lien be satisfied; does not determine the transit, so that the vendor may exercise his right of stoppage (c). Where the vendor delivers the goods to an agent of the vendee, for the purpose of being forwarded to the vendee, the transitus is not determined by their coming into the agent's possession. In Jackson v. Nichol (d), it appeared that Craw- hall, of Newcastle, as agent for Maltby & Co., of London, con- tracted with the plaintiff for the purchase of a quantity of lead, to be paid for by bill at six months from time of delivery The plaintiff was directed to forward the lead to London, and he gave a delivery order to Crawhall, and the lead was put on board the ship " Esk," the lighterage being paid by Craw- hall on account of Maltby & Co. An invoice of the lead was delivered to Crawhall, and he transmitted to Maltby & Co. a bill of lading for it. The " Esk " arrived in London, and the defendants, who were wharfingers, received the lead on board a lighter. Maltby & Co. became insolvent, and the lead was stopped on behaff of the plaintiff, as unpaid vendor. The Court held that the goods were still in transitu, because every step taken was but a link in the chain of machinery by which the goods were to be put in motion. Tindal, J. (a) Mills V. Ball, 2 B. & P. 457. (b) Allanv. Gripper, 2 Or. & J. 218 ; 2 Tyrw. 217. See Foster v. Frampton, 6 B. & C. 107 ; Ojypenheim v. Russell, 3 B. & P. 42. (c) Crawsliaij v. Fades, 1 B. & G. 181 ; 2 D. & E.. 288. (d) 7 Scott, 585 ; 5 Biug. N. C. 508. 120 STOPPAGE IN TRANSITU. Said, that " if the goads had ever come into the possession of Crawhall, as the agent of the buyers, there to remain till the ijgent received orders for their ulterior destination, such possession would have been the constructive possession of the buyers themselves; and the right to stop in transitu would have been at an end." Where goods had been ordered to be sent to a wharfinger for the purpose of being forwarded by him to the purchaser, the goods are in transitu while in the hands of the wharfinger. In Smith v. Goss (e), the vendee directed the vendor to forwai'd the goods to him at Newcastle, either by way of London or Gainsborough, and if they were sent to London, to address them to the care of J. W. Goss, Bull Wharf, with directions to send them by the first vessel to Newcastle. One of the questions raised was, whether the goods might be stopped while in the hands of Goss, the defendant. Lord Ellenborough held, that the goods, having been sent to the defendant for the purpose of being forwarded to Newcastle, were merely at a stage on their transit, and could not be considered as having reached their final destination when at the wharfinger's, in London, And where goods had been sent by orders from the vendee to a packer, the packer was considered as a middleman between the vendor and vendee ; and therefore, it was held, that they might be stopped in transitu on the bankruptcy of the vendee (/). ' Jf an agent be ordered to purchase and forward goods to a branch of the vendee's house abroad, the transit continues until the goods have reached the place of destination, and in that case the warehouse of the agent is a mere resting-place for the goods. Thus, in Coates v. Jtailton (g), where th^ course of business was for Railton, who was a packer, ware- (e) 1 Camp. 282. (/) Hmil V. Ward, cited 3 T. E.. 467. (g) 6 B. & C. 422. DELIVERY INTO PUBLIC WAKEHOUSE. 121 houseman, and commission agent at Manchester, to purchase goods in the name of Butler, of London, and send them to a branch of that house at Lisbon, and the goods which were so ordered were delivered at Kailton's warehouse; it was hela, that the transitus continued until they reached Lisbon, the place named by the vendee to the vendor as the place of ultimate destination ; and that the latter had a right to stop them in the hands of the agent, the vendee having become insolvent (h). So, where consignors purchased and paid for flour which was sent by a vessel to London, and the invoice was forwarded to the consignee. A manifest of the flour was also forwarded by the consignors to a wharfinger in London, whose practice it was to deliver goods to the consignee named in the manifest, upon application, and till application to keep them on board the vessel; if not applied for before the vessel returned, he landed them and kept them in his warehouse to the order of the consignor ; if the good's were to be delivered to order, he delivered them to persons producing either biUs of lading or the invoice. The consignee was in the habit of having flour consigned to him at the wharf, and he sometimes sold it on board, sometimes when it was landed, and kept for him in the wharfinger's warehouses. The flour in question arrived at the wharf on the 12th of April, but was not landed until the 22nd ; on the l7th, before any application by the consignee, who had become bankrupt, the flour was claimed under an order from the consignors ; and it was held, that they might stop in transitu, for no act of ownership had been exercised over the flour by the consignee or his agent ; and the very first act after the arrival at the wharf was done by the consignor before the transit was at an end, or the possession of the consignee was complete (i). (h) See also Nicholls v. Le Feuvre, 2 Bing. N. C. 81. (i) Tucker v. Humphrey, i Bing. 516. See also Sartram v. Farebrother, i Bing. 579. 122 STOPPAGE IN TRANSITU. The transit continues until possession be taken by the vendee as owner of the goods ; if there be constructive possession only, it becomes a question of evidence as to the purpose for which the agent holds possession. If they are received for the purpose of being held on behalf of the vendee, as owner, the transit is determined ; but if they are received for the purpose of being forwarded to the vendee, or if the vendee has declared his intention not to take actual possession of the goods, then the right of stoppage in transitu continues. Accordingly, in James v. Qriffin (k), where goods were consigned to Emerson, a bankrupt, deliverable in the river Thames, and on the arrival of the vessel in the river, the captain having pressed Emerson to have them landed immediately, Emerson, in consequence, sent his son or agent, with directions to land them at a wharf where he was accus- tomed to have goods landed for him and kept until he carted them away to his customers in his own carts; but Emerson at the same time said to his son that he would not meddle with the goods, that he did not intend to take them, and that the vendor ought to have them. The goods were landed at the wharf, and there stopped in transitu by the vendor. In trover for the goods by the assignees of Emerson against the wharfinger, the goods were still considered in transitu, on evidence being adduced to prove that the vendee had told his son at the time, that under the circumstances in which he was, he would not meddle with them ; and though that fact was not disclosed to the wharfinger, the Court held that the proper question to be left to the jury was, whether the wharfinger received the goods as the vendee's agent to take possession of them for his benefit as owner, or as his agent only, to forward them to him, or to keep them for the seller (Q. (Jc) 1 M. & W. 20 ; 2 M. & W. 623. See Bolton v. The Lancashire and Yorkshire Railway Company, ante, p. ii. (I) See Morley v. Bay, 3 Man. & Ey. 396. ACTUAL AND CONSTRUCTIVE POSSESSION. 123 In Whitehead v. Anderson (m), it was held, that on the bankruptcy of the vendee the right of stoppage in transitu still continued, where there was no actual possession taken of the goods, by the assignees; and no contract by the captain of the ship to hold the goods as their agent so as to constitute constructive possession. Parke, B. states the law on this point thus, — " The law is clearly settled that the un- paid vendor has a right to retake the goods before they have arrived at the destination originally contemplated by the purchaser, unless in the meantime they come to the actual or constructive possession of the vendee. If the vendee take them out of the possession of the carrier into his own, with or without the consent of the carrier, there seems to be no doubt that the transit would be at an end ; though in the case of the absence of the carrier's consent, it may be a wrong to him for which he would have a right of action. This is a case of actual possession, which certainly did not occur in the present instance. A case of constructive posses- sion is where the carrier enters, expressly or by implication, into a new agreement distinct from the original contract for carriage, to hold the goods for the consignee as his agent ; not for the purpose of expediting them to the place of original destination pursuant to that contract, but in a new character, for the purpose of custody on his account, and subject "to some new or further order to be given to him. It appears to us very doubtful, whether an act of marking or taking samples, or the like, without any removal from the possession of the carrier, though done with the intention to take possession, would amount to a constructive possession, unless accompanied by such circumstances as to denote that the carrier was intended to ke^p, and assented to keep, the goods in the nature of an agent for custody. But it is un- necessary to determine this point, £ts there is no finding in (m) 9 M. & W. 51,8. 124 STOPPAGE IN TRANSITU. this case, even of any act done to tlie timber, with intent to take possession. It is said, indeed, that the agent of the assignees touched the timber, but whether by accident or design is not stated. There being then no such act of owner- ship, it seems to us, that unless -by contract with the captain, express or implied, the relation in which he stood before as a mere instrument of conveyance to an appointed place of destination was altered, and he became the agent of the consignee for a new purpose, there was no constructive possession on the part of the vendee " (n). Section V. — Effect of Partial or Conditional Delivery. Acts which in themselves would be equivocal, such as taking possession of part of the goods, or taking samples, will be judged of from the circumstances, in order to ascertain the intention of the party and the purpose for which they are done. In Grawshay v. Eades (o), where the vendor delivered a quantity of iron to a carrier to be conveyed to the vendee, and the carrier on his arrival at the vendee's premises, landed a part of the iron on his wharf, and then, finding that the vendee had stopped payment, re-loaded the same on board his barge, and took the whole of the iron to his own premises ; it was held, that there was not a delivery of any part of the iron, so as to divest the consignor of his right to stop in transitu, the special property remaining in the carrier untU the freight for the whole cargo was either tendered or paid, or until he had done some act showing that he assented to part with the possession of the goods, without receiving his freight (p). In some cases a delivery of part of the goods will operate as a delivery of the whole ; but if the vendor has no intention that the partial delivery should have that effect, he may (m) See Dodson v. Wentwortk, 6 Jur. 1066 ; 5 Scott, N. E. 833. (o) 1 B. & C. 181. (p) See Simmons v. Swift, 5 B. & C. 857. PARTIAL DELIVERY. 125 retain the portion undelivered. In Payne v. Shadholt (q), an action of assumpsit was brought for the non-delivery of wood purchased by the plaintiff from the defendant. It appeared that the wood had been sold, to be paid for on delivery by a bill at two months. The defendant had permitted the plaintiff to carry away a part of the wood without receiving any bill ; but he refused to let him have the remainder until it should be paid for according to the terms of the contract. It was contended on the part of the plaintiff, that the defendant had completely dispensed with the con- dition of being paid by bill at two months, and having waived it once, the property in the whole of the wood absolutely vested in the purchaser, so that the vendor was bound to deliver it up, and seek for payment by the com- mon means. But Lord Ellenborough held that this was only a dispensation pro tanto, and that the vendor was entitled at any time to stand on his rights as they were originally established by the contract of sale (r). Where the vendee takes possession of a part of the goods with the view of separating the part delivered from the rest, and not meaning thereby to take possession of the whole, then the transit is determined only as to that part and no more, and the vendor may retain or stop the part unde- livered. In Tanner v. Scovell (s), goods were forwarded in bales by ship to London, deliverable to factors for sale, and were landed at the defendant's wharf The factors sold the goods and gave the defendant orders to weigh and deliver them to the purchaser. The goods were accordingly weighed by the wharfinger and an account of the weight sent to the sellers, who made out an invoice in favour of the purchaser. The purchaser afterwards re-sold some of the goods, and the {q) 1 Camp. 427. (r) See Bimney v. Poyntz, 4 B. & Ad. 568 ; James v. Griffin, 2 M. & "W. 623, (s) 14 M. & W. 28. 126 STOPPAGE IN TRANSITU. part sold was delivered by the wharfinger to the sub-vendee on the order of the original purchaser, the rest remaining with the wharfinger. On the bankruptcy of the original purchaser, the original sellers claimed the portion of the goods in posses- sion of the wharfinger, and thereafter the assignees of the bank- rupt bi'ought an action on the case against the wharfinger for the non-delivery of the goods. The Court held, that the whai-finger never stood in that relation to the bankrupt, so as to be liable to an action on the case by him for the non- delivery of the goods to his order ; and further, that the sellers' right of stoppage in transitu was not determined by the part delivered to the purchaser. Pollock, C. B. observed, — " In this case, upon looking into the authorities, we are all agreed that the delivery of part of the goods was not intended to be, and did not operate as, a simple delivery of the whole, but was a separation for the purpose of that part only, leaving all the rest in statu quo." If, however, the vendee takes possession of a part of the goods in the progress of, and with a view to the delivery of the whole, that will put an end to the vendor's right of stoppage in transitu. In Slubey v. Heyward (f), the con- signor at a foreign port shipped goods by order and on account of the consignee in this country, to be paid for on a future day, and bills of lading were accordingly signed by the master of the ship. One of the bills was immediately trans- mitted to the consignee, who, before the arrival of the ship at the place of destination, sold the goods and indorsed the bill of lading to the purchaser. After the arrival of the ship, and delivery of part of the goods to the agent of the purchaser, the consignee became bankrupt, without having paid the consignor the price of the goods. The Court, of Common Pleas held, that the partial delivery put an end to the transit of the whole of the goods, there having been no (<) 2H. Bl. 504. PARTIAL DELIVEBT UNDER ENTIRE CONTRACT. 127 intention, either previous to, or at the time of delivery, to separate part of the cai-go from the rest (u). And in Ham,- rtwnd V. Anderson (x), a number of bales of bacon which were lying at a wharf, having been sold for an entire sum, to be paid for by bill at two months, an order was given to the wharfinger to deliver them to the vendee, who went to the wharf, weighed the whole, and took away several bales, and then became bankrupt; whereupon the vendor, within ten days from the time of the sale, ordered the wharfinger not to deliver the remainder. By the custom of the trade, the charges of warehousing were to be paid by the vendor fourteen days after the sale. It was held, that the contract being entire, and part of the goods having been taken pos- session of, the delivery to the vendee was complete, and that the vendor had no right to stop what remained in the hands of the wharfinger. Chambre, J. said, — "Was there not here a complete delivery of the goods ? The payment of warehouse-room by the vendor cannot make a difference. The vendor, of course, charges just as much more as will pay the expense of warehouse-room. If the expense had been paid by the vendee, it would not make a delivery at the wharf a delivery to him. Nor can the vendor avail himself of the circumstance of the expenses being paid by him to .prevent a delivery to the vendee from operating as such. This is a much stronger case than that of Slubey v. Heyward, which proceeded upon the principle that a delivery of part where the contract was entire was a delivery of the whole. But here there was an actual delivery of the whole " (i/). In Dixon v. Yates (z), the vendee was allowed to take samples, cooper, mark, and gauge the casks in which the goods were contained ; he sold part, and the sub-vendees (u) See Belts v. Gibbons, 2 A. & E. 57 ; 4 Nev. & M. 64. {x) 1 B. & P. N. R. 69. (y) See Jones v. Jones, 8 M. & W. 431. (z) 5 B. & Ad. 313. 128 STOPPAGE IN TBANSltXr^ received delivery, yet on the bankruptcy of the vendee, it was held that the original vendor, who was unpaid, had a right to retain the part that was in his possession. Parke, B. observed, — "It is said that by taking possession of two puncheons the vendee, took possession of the whole; but it is clearly established, that if part be delivered with an intent to separate that part from the rest, it is not an inchoate delivery of the whole, so as to divest the right of property out of the vendor. Here the vendors, on being asked to give a delivery order for the whole, said they would give an order for one or two puncheons only, thereby separating that part distinctly from the rest. As to the marking, that is an equivocal act ; it may be for the purpose of taking possession, or merely for that of identifying the property." If the delivery to the vendee be not absolute, but with a condition annexed, the vendor may still exercise the right . of stoppage. This seems to follow from the case of BothlingJc V. Scheider (a), where goods were ordered from Russia, and shipped in a vessel ordered by the consignor. The plaintiff's counsel gave in evidence a letter from the plaintiff, requiring the vendee to give security to their correspondent in London before the goods were delivered. Lord Kenyon said, — " The whole question is, whether there was a delivery of the goods before this letter was written, or not ? Before the delivery^ the party may annex any condition to it, but not after " (&). Where a delivery order to give possession is conditional upon some act being done on the part of the vendor, such as weighing or measuring the goods, the right of stoppage continues until what remains to be done is completed (c). But if the condition to be perfiarmed is merely for the satis- faction of the vehdee, a delivery <>rder to give possession will (a) 3 Esp. 58. {b) See JSx parte Gwynne, 12 Ves. Jr. 379. (c) Hanson v. Meyer, 6 East, 614 ; see BusJc v. Davis, 2 M. & S. 397 ; Withers v. Lyss, i Camp. 237 ; Shipley v. Davis, 5 Taiin. 617 ; Wallace v. Breeds, 13 East, 522. CONDITIONAL DELIVERY. 129 determine the vendor's right of stoppage in transitu, on notice of the transfer of the goods to the name of ^the vendee being received by the warehouseman (cC). Payment of excise duty is not a condition precedent under a delivery order to receive possession of goods (e). If the condition of payment be annexed by the vendor of goods at the time of delivery, the right of stoppage is reserved. In Ooodall v. Skelton (/), where goods, which had been sold, were packed for the vendee and deposited in a building belonging to the vendor till the vendee should send for them ; but the vendor had declared that they should not be carried away till paid for, it was decided that the delivery was not of such a nature as to divest the power to stop. And in Loeschtnan v. Williams (g), it was held, that although goods are delivered to a packer of the vendee, who has no warehouse of his own, the transit is in general at an end ; yet, if the goods were to be paid for in ready money, and this was intimated to the packer when he received them, they may still be stopped in transitu. Where goods were sold and the vendor agreed to get the arms of the vendee engraved on them, and to pay for the engraving, it was held that a delivery to the engraver for that purpose was not equivalent to a delivery to the vendee, so as to defeat the vendor's right of stopping the goods in transitu for non-payment of the price, or on dishonour of the bills with, which payment was made (A). (d) Hammond v. Anderson, 1 B. & P. N. R. 69 ; Sieanwick v. Sot/iem, 9 A. & E. 895. (e) Orr v. Murdock, 2 Ir. Com. Law Rep. IS. S. 9. (/) 2 H. B. 316. (g) i Camp. 181. (h) Owenson v. Morse, 7 T. R. 64. 130 STOPPAGE IN TRANSITU. Section VI. — Effect of Taking Delivery short of the Ultimate JDestvnation. It was at one time held that a completion of the voyage was necessary to divest the consignor's right of stoppage, and that a premature possession on behalf of the consignee; while a vessel was performing quarantine, did not put an end to the transit, on the ground that the consignee had no authority by the bill of lading to demand delivery of the goods before their arrival at the port of destination. In Hoist V. Povmall (i), Hoist, of Leghorn, consigned a cargo of fruit to Dutton & Co., of Liverpool, by a ship chartered on their account. The captain signed three bills of lading as usual, one of which was sent to Dutton & Co. Before the ship arrived at Liverpool, Dutton & Co. became bankrupt. On the ship's arrival she was ordered out to perform quaran- tine, and the assignees of the consignee went on board, claimed the cargo as belonging to Dutton & Co.'s estate, opened some of the chests of fruit, and put two persons on board, who continued there till quarantine was ended, with a view of keeping possession of the cargo on account of the bankrupt estate. The agent of the consignor, having received a bill of lading shortly after the ship was ordered out of port to perform quarantine, claimed the goods by serving a notice of Dutton & Co.'s bankruptcy on the captain of the vessel. A similar notice was served on the assignees ; and when the vessel came into harbour, a claim was again made to the captain by the agent of Hoist, and an indemnity offered. But the captain delivered the cargo to Dutton & Co.'s assignees, against whom Hoist brought trover. The assignees contended that the consignor's right to stop in transitu was completely at an end when the consignee had (i) 1 Esp. 240. DELIVERY BEFORE COMPLETION OF VOYAGE. 131 got possession, by any means, of the goods consigned ; that the consignee might have met the vessel at sea on her voyage, and have taken possession by virtue of the first bill of lading, which possession they contended would be suffi- cient to divest any right the consignor might have to stop the goods in transitu ; and as the assignees had taken possession before the notice from the agent of the consignor was given, a complete property was vested in the assignees by virtue of their possession. Lord Kenyon was of opinion that " there was a stopping in transitu sufficient to maintain the action; and in order to give the consignee a right to claim by virtue of possession, it should be a possession obtained by the consignees, on the completion of the voyage. The case put by the defendants, that the consignee had a right to go out to sea to meet the ship, could not be supported, as it might go the length of saying that the consignee might meet the vessel coming out of the port from whence she had been consigned, and that that should divest the property out of the consignor, and vest it in himself, which was a proposition not to be supported, as there would be then no possibility of any stoppage in transitu at all. In the present case the voyage was not completed till the vessel had performed quarantine, till which time, she was in transitu. As the agent of the consignor had given notice, and claimed the cargo before the completion of the voyage, he was of opinion, that the con- signor had stopped the goods in time to prevent the property from vesting in the assignees." This opinion was sanctioned by the Court of King's Bench on a motion for a new trial. But the doctrine contained in that case has been expressly overruled in Mills v. Ball (k). It appeared that Gard, a trader in Devonshire, ordered goods of the plaintiffs, who were drysalters in London. The goods were sent by ship via, Exeter to Gard. On their arrival at Exeter they were delivered to {k) 2 B. & P.. 457. 132 STOPPAGE IN TRANSITU. the defendant, who was a wharfinger there ; and he received them on Gard's account and paid the freight and charges. After their arrival Gard wrote to the plaintiff informing him that in consequence of his affairs being deranged, he should not take the goods, and telling him that they were at Exeter. At this time Gard had committed an act of bank- ruptcy, upon which he was afterwards declared a bankrupt. The plaintiff applied to the defendant for the goods, and tendered him the freight and charges due ; upon which the defendant promised not to deliver them out of his custody, but afterwards he delivered them to the assignees of Gard, though indemnified by the plaintiff. It was held, that the plaintiff had a right to stop the goods in the hands of the defendant. Lord Alvanley, in delivering judgment, said, — " If, in the course of the conveyance of the goods from the vendor to the vendee, the latter be allowed to exercise any act of ownership over them, he thereby reduces the goods into possession, and puts an end to the vendor's right to stop them. So, though it has been said, that the right of stoppage continues until the goods have arrived at their journey's end, yet if the vendee meet them upon the road, and take them into his own possession, the goods will then have arrived at their journey's end with reference to the right of stoppage. I am of opinion that the wharfinger in this case, not having been particularly employed by the vendee, is to be considered as a middleman." The reporter of this case suggests that there may be a distinction between C9,rriage by sea and carriage by land upon this point ; for the master of a ship, by signing the bill of lading, agrees with the consignor to deliver the goods at the destined port ; whereas no such express agreement is entered into between the vendor and the carrier. In Wright v. Lawes (I), where wine was delivered to an (I) 4Esp. 82. POSSESSION DURING THE VOYAGE. 133 agent of the vendee at Yarmouth, and the vendee being at Norwich, went to Yarmouth, tasted, and took samples of the wine ; it was held, that the transit was at an end, and that to deprive the vendor of goods of the right to stop in transitu it is not necessary that they should be delivered at the consignee's place of abode ; it is sufficient if they have come into the consignee's possession, and that he has exercised some act of ownership on the property. It was contended, that as the plaintiff lived at Norwich, the goods must be deemed to be in transitu until they arrived there ; whereas, they had arrived only at Yarmouth, and had never been delivered at Norwich ; that the usual course was to put them into lighters at Yarmouth, and forward them to Norwich ; so that, until their ari-ival there, they were in transitu, and could be stopped by the owners. But Lord Kenyon said, — " There is no colour for sayiag that these goods were in transitu. I once said, that to confer a property on the consignee, a corporal touch was necessary. I wish the expression had never been used, as it says too much ; but here, if a corporal touch was necessary to confer a property on the consignee it had taken place ; but all that is necessary is, that the con- signee exercise some act of ownership on the property con- signed to him, and he has done so here ; he has paid for the warehouse room ; he has tasted apd taken samples of the wines ; but it is said they have not reached the plaintiff's place of abode, where they were to be ultimately delivered ; but I think there was a complete delivery at Yar- mouth " (m). In Abbot on Shipping (n), Lord Tenterden, after citing the case of Hoist v. Fownall, observes that " the doctrine of this case is in exact conformity to the tenor of a bill of lading, by which the master always engages to deliver the goods at the place of destination, and which therefore gives no (m) See Lift v. OovSey, 7 Taun. 169, per Gibbs, C. J. (ji) P. 428. 134 STOPPAGE IN TRANSITU. authority to the consignee to demand them before their amval at that place." And Parke, B. (o), in considering this point, has remarked that — " In Wright v. Lawes (p), Lord Kenyon held that a vendee may take possession before arrival at the port or place of delivery ; and in Hoist v. Pownall (q), where there was a bill of lading, that he could not. It is some- what difficult to understand how a bill of lading, which is only a contract between the vendee and shipper for the carriage, can make any difference." And again, Parke, B. observed (r) that — " If the vendee take the goods out of the possession of the carrier into his own before their arrival, with or without the consent of the earner, there seems to be no tioubt that the transit would be at an end ; though, in the case of the absence of the carrier's consent, it may be a wrong to him for which he would have a right of action." And Chambre, J. expressed an opinion of this question as follows (.s) : — " Perhaps the consignee himself may intercept the goods in their passage, and, indeed, I have little doubt but that if he do intercept them in their passage, before the consignor has exercised his right of stoppage in transitu, and do take an actual delivery before the goods get to the end of their journey, that such delivery to him will be complete. And I will not say but that his creditors, in the case of an execution against him, may have the same right." Where goods are to be delivered to the vendee at a par- ticular place, and he, by his own act, prevents the delivery which otherwise would take place in the ordinary course, and does any act equivalent to taking possession, the vendor cannot afterwards stop the goods in transitu. In Foster v. Frampton (t), the vendee of several hogsheads of sugar, upon (o) James v. Griffin, 2 M. & W. 633. (p) i Esp. 82. (?) 1 Esp. 242. (r) Whitehead v. Anderson, 9 M. & W. 634. (s) Oppenheim v. Russell, 3 B. & P. 42. (t) 6 B. & c. lor. DELIVERY AT A PARTICULAR PLACE. 135 receiving notice of their arrival, took samples from them, and for his own convenience desired the carrier to let them remain in his warehouse till he should receive further direction; it was held, upon the bankruptcy of the vendee, that the transitus was at an end, and the vendor could not stop the goods. Bayley, J. remarked on this point that— ^ " Where a man orders goods to be delivered at a particular place, the transit continues until they are delivered to the consignee at that place ; but that must be understood of a delivery in the ordinary course of business ; for if the con- signee, before the goods reach their ultimate destination, postpones the delivery or does any act which is equivalent to taking actual possession of them, the transit is at an end." In Allan v. Ori/pper {u), where goods were conveyed by water, and deposited in the carrier's warehouse for the con- venience of the vendee, to be delivered out to him and his customers as they should be wanted, without being sent to his residence elsewhere ; it was held, that the transit was at an end, and that the vendor's right of stoppage was gone, although it appeared that the carrier claimed to have a lien on the goods against the vendee. But if the goods have arrived at the port of delivery, and are lodged in a govern- ment warehouse to secure payment of the duties, the posses- sion of the consignee is not complete, and the vendor may stop them in transitu {x). If the vendee obtains possession of the goods while on their journey, this will operate as determining the vendor's right of stoppage, but a mere demand by the vendee without any delivery will not have the same effect. In Jackson v. Nichol (y), where goods were forwarded to the vendee and received by a wharfinger who undertook to deliver them, but before delivery the vendee failed ; it was held, that (it) 2 Or. & J. 218 ; 2 Tyrw. 217. (x) Northey v. Field,% Esp. 613. , (V) 5 Bing. N. C. 608. 136 STOPPAGE IN TRANSITU. althougli the vendee had demanded the goods of the captain of the vessel, but was refused, a subsequent stoppage was good. On this point, Tindal, C. J. said, — '' It was urged on the part of the defendants, on the authority of the dictum of Lawrence, J. in Bothlingk v. Inglis (z), that the tortious act of a third person should not prejudice the rights of the parties ; and consequently, that the demand made by the vendee, and the unlawful refusal to deliver, was tantamount to delivery. But it is to be recollected, in the first place, that the observation referred to was made in a case of a demand by the consignor for the purpose of revesting his property in the goods, and not in the case of a vendee. And, in the second nlace, that here the goods had not actually reached the terminus of their delivery, when the demand of the vendee took place ; and although it might be conceded to be the better opinion, that if the vendee actually receives the possession of his goods on their passage to him, and before the voyage has completely terminated, that the delivery is complete, and the right of stoppage gone ; yet no authority has been cited for the position, and the principle seems the other way, that a mere demand by the vendee, without any delivery, before the voyage has completely terminated, deprives the consignor of his right of stoppage." After the goods have reached the place of their ultimate destination, although an act of ownership or of constructive possession on the part of the vendee will determine the vendor's right of stoppage in transitu (a) ; yet, where the vendee had become bankrupt, and the agent of the assignees went on board a ship which contained a cargo of timber, consigned to the bankrupt, and touched the timber, as symbolical of taking possession; it was held that this did not amount to an act of ownership on behalf of the (S!) 3 East, 38i. (a) Ellis V. Html, 3 T. R. iU. ACTS OF OWNERSHIP, 137 assignees of the* vendee so as to put an end to the transitus, as there was no contract either express or impUed on the part of the captain to hold the goods as agent of the vendee or his assignees, and thereby to alter his position as a mere instrument of conveyance to the place appointed as the destination (h). A usage for land carriers to retain goods for a general balance of account between them and the consignees, cannot defeat or affect the right of the consignor to stop the goods in transitu. In Oppenheim v. Russell (c), on the failure of the consignee, the goods were stopped by the plaintiff in the hands of a carrier, the defendant in the action, who claimed to retain them for money due for the carriage of such particular goods and also for a general balance due to him by the consignees. Lord Alvanley rejected evidence offered at the trial to show that there was a usage among carriers to that effect, he being of opinion that it was not admissible, and that the consignor's right to stop in transitu could not be affected by such a usage, if established. A verdict was found for the plaintiff, with liberty to the defendant to apply to the Court for a new trial. The Court of Common Pleas decided that the evidence was improperly rejected ; but that there should be no new trial, because, even admitting that the can-ier had a lien as against the consignee, it would not affect the con- signor's right of stoppage in transitu. Heath, J. said, — " I think that the right of stopping in transitu is a common law right, arising out of the ancient power and dominion of the consignor over his property, which at the time of delivering his goods to the carrier he reserves- to himself; and this is paramount as to any sort of agreement between the carrier and consignee." Where the right of stoppage in transitu exists, it cannot be divested by any claim made upon the goods in their (J) Whitehead v. Anderson, 9 M. & W. 518. (c) 3 B. & P. 42; and see Zeitcfeiri v. Cooper, 3 Bing. N. C. 107. 138 STOPPAGE IN TRANSITU. transit by process of foreign attachment at the suit of a creditor of the consignee. In Smith v. Goss (d), at Wisi Prius, it was decided that the right of a consignor to stop goods in transitu is not divested by process of attachment out of the Court of the Lord Mayor of London, at the suit of a creditor of the consignee, -who had attached the goods in the carrier's hands. Lord Ellenborough said that the vendor's power of intercepting the goods was the elder and preferable lien, and not to be superseded by attachment, any more than it would have been by the general right of a common carrier to retain all his customer's goods for his general balance, which had been decided against the carrier (e). {d) 1 Camp. 282. (e) Oppenheim v. Rttssell, 3 B. & P. 42 ; Butler v. Woolcot, 2 B. & P. K R. 64 ; MarUy t. Say, 3 M. & Ry. 396. CHAPTER V. BY WHAT ACTS THE RIGHT MAY BE DEFEATED. ♦ -■ Section I. — Of BUh of Lading. When goods are delivered on board a ship, it is usual for the master or person in charge to give a receipt, which the shipper returns to the master on receiving bills of lading, generally three in number : one of which the shipper sends with the ship, one by post to his agent, factor, or other person to whom the goods are deliverable at the place of des- tination, and a third the shipper retains for his own use. The efifoct of the bill of lading is to constitute the master who signs them a bailee of the goods on account of the pei"son named therein, or his assigns (a). The bill of lading usually contains the word " assigns" delivery of the goods being commonly made to the shipper ((() Tho following is tlio usual form of a bill of lading : — Sfjt'lipcll in good ordor nnd woll-oonditionod, by ^. B., in and upon tl>e good ship called tho Vitji/iint, whoi'eof C. D. is master for tliis present voyage, nnd now riding at anchor in the river Thame.i, nnd hound for Barcelona in ISfiiiin, twenty boles of cloth, being marked and numbered as per margin ; and nre to be delivered in liko good ordor and condition at tho aforesaid port of /Sanr/oiia (tlio net of God, tho Queen's enemies, fii-e, and idl and every other dongora and accidents of tlie seas, rivers, and navigation, of whatever nature nnd kind soever, save risk of boats so far as ships are liable thereto excepted), unto E. F., meixhant there, or to his assigns, he or they paying for the said goods per bale freight, with primage nnd average accustomed. In AViTNESs whereof, the master or purser of tlio said ship hath affirmed to thm bills of lading, all of this tenor nnd date, one of which bills being aooomplishod, the other two to stand void. Dated nt Londoit, the day of .v.d. 140 STOPPAGE IN TRANSITU. by name, or assigns ; sometimes to order or assigns without name ; and at other times to the person who is to receive the goods at the port of destination, by name, or assigns. In the first two instances, the shipper may either indorse the bill of lading in blank or specially, and may impose conditions or restrictions with respect to the delivery. By the custom of merchants, a bill of lading indorsed and delivered to a bond Ude indorsee for value, operated to pass the property pi the goods, and it was negotiable like a bill of exchange. In Evans v. Martlett (h), it was decided, that if goods by bill of lading are consigned to A., A. is the owner, and must bring the action against the master of the ship if they are lost. But if the bill be special, to be delivered to A. to the use of B., B. ought to bring the action. But if the bill be general to A., and the invoice only shows that they are upon the account of B., A. ought always to bring the action, for the property is in him, and B. has only a trust. And Holt, C. J. said that the, consignee of a bill of lading has such a property that he may assign it over ; and Shower, J. said that it had been adjudged so in the Exchequer (c). But, although a bill of lading is a negotiable instrument, (J) 1 Lord Eaym. 271-. (c) Emerigon, speaking of the assignment of a bill of lading, says, ' ' Mais ces sortes de cessions deferent au cessionaire un simple droit ad rem, qui liii donne pouvoir de requ^rir la delivranoe des effets indiqu^s, sans le mettre en possession effective de la chose mSme. Ainsi, que jusqu'sl ce que la tradition r^elle ait ^t^ fait dans un temps utile au porteur du connoissement, il n'a . qu'une action personelle, qui est suhordonn^e aux droits du tiers. Je crois done qu'une pareille cession ne sauroit nuire, ni au privilege du vendeur primitif, non pay^ du prix, ni au privilege du donneur k la grosse, ni aux droits de la masse des crdanciers. Telles sont nos r%les. Lb connoissement n'a jamais ^t^ considdr^ parmi nous comme un papier ndgociable. Le trans- port du titre est une tradition feinte, qui s' dyanouit par la faillite ou I'insolva- bilite notoire du cedant : " — Emerigon, torn, i., p. 319, quoted by Dr. Eobin- son in a note to the " Constantia," 6 Eob. Ad. Rep. 325. Valin, on the other hand, has maintained that, although by the law of France a ship cannot be validly transferred at sea, if thereby the interests of the vendor's creditors are affected, yet the law was different as regards the cargo on board : Valin, Nouveau Comm. snr I'Ordonnance dela Marine, v. i., p. 672. BILL OF LADING. 141 SO that by indorsement and delivery the indorsee acquired the property of the goods, and might therefore sue for damage resulting from non-delivery, yet it did not transfer the contract, and in order to bring an action on the contract, it was necessary for the indorsee to use the name of the original contractor (d). In Sargent v. Morris (e), it appeared at the trial that goods were shipped by Bayo & Son, of Seville, and that they were the parties interested in the goods. The bill of lading was in a peculiar form; the captain acknowledged to have received the goods on board the vessel from Bayo & Son, and it then proceeded in the following words : — ■" I undertake to deliver the same to you, and in your name, according to custom and usage, to Mr. Sargent, or his assigns, paying freight," &c. The plaintiff, on receiving advice of the shipment, effected an insurance on account of Bayo & Son, and advanced the premiums. Sargent brought an action in assumpsit in his own name on the bill of lading, against the owner of the vessel, for damage done to the goods by reason of the captain's negligence. It was objected that the action ought to have been brought by Bayo & Son, and not by the plaintiff. The Court of King's Bench directed a nonsuit. Abbott, C. J. said, — ■" This is an action on a special contract, founded on a bill of lading, on the face of which it does not distinctly appear whether the contract made by Bayo & Son was made on their own behalf, or as the agents of Sargent, who is named in the bill of lading as the person to whom the delivery is to be made. The fact is, however, afterwards ascertained by other circumstances, and it appears that the shipment was made on account of Bayo & Son, at their risk, and for their benefit, and not on the risk or for the benefit of the present plaintiff. It is time, if the goods had been delivered to him, that he would have had a (d) Thompson v. Dominy, 14 M. & W. 403 ; Howard v. Shepherd, 9 C. B. 297 ; Sanders v. Vanzeller, 4 Q. B. 260. (e) 3B.&Ald. 277. 142 STOPPAGE IN TRANSITU. lien to the extent of any advances he had made for freight or insurance, on account of his principal ; And if there had been any deviation so as to discharge the underwriters, and the goods had never arrived, he would have been entitled to recover against Bayo & Son for such advances. A transfer of the property is, however, very different from a transfer of the contract. It appears to me that this action at the suit .of the present plaintiff is not maintainable." Bayley, J. added, — "The declaration describes the plaintiff as the original shipper, and the original contract as having been made with him. Now, I take the rule to be this — if an agent acts for me, and on my behalf, but in his own name, then, inasmuch as he is the person with whom the contract is made, it is no answer to an action in his name to say that Ke is merely an agent, unless you can also show that he is prohibited from carrying on that action by the person on whose behalf the contract was made. In this case the contract appears by the terms of the bill of lading to have been made with Bayo & Son"(/). In Anderson v. Clarke (g), the plaintiff brought an action on a contract in a bill of lading against the master of a ship for not delivering the goods. It appeared that Orr, of Newry, had been in the habit of consigning goods to the plaintiff at Liverpool, to be sold on his account,- and of drawing bills of exchange on such goods, and in anticipation of future con- signments. There was due to the plaintiff a large balance arising out of these transactions, when Orr shipped on board a ship belonging to the defendant, goods for the plaintiff at Liverpool to the amount of 5921. The goods were consigned to the plaintiff, and a bill of lading and invoice transmitted to him ; and at the same time Orr drew on the plaintiff for 5001. The . plaintiff refused to accept the bill, and the defendant, on being indemnified by Orr, re-landed the goods (/ ) See ffiggins v. Senior, 8 M. & \V. 834. (g) 2 Bing. 20. BILL OF LADINO. 143 at Newry, and re-delivered them to Orr. The Court decided, after examining the correspondence, that Orr, in shipping the goods, had acted as the plaintiff's agent, and that though the plaintiff might not have had an absolute property in the goods, yet at all events he had a sufficient qualified interest in them, in the way of security, to entitle him to sue on a breach of contract for non-delivery (h). This continued to be the law until the Act 18 & 19 Vict. c. Ill, was passed; it provides that aU riglats in respect of the contract contained in the bill of lading shall be transferred ■with the property by indorsement and delivery (i). It is also provided that the Act is not to affect the right of stop- page in transitu, or claims for freight against the shipper or owner of the goods, or the consignee or indorsee as owner, or by reason of his receipt of the goods. It seems that the statute has not altered the rule, that the indorsement of a bill of lading gives no better right to the indorsee than the indorser himself had, and that in this respect a bill of lading still differs from a bill of exchange in the same way as it did before the statute; it is necessary, therefore, for us to consider the whole law on the subject, as it bears upon the doctrine of stoppage in transitu (k). (A) See Aryans v. Nix, 4M. &W. 792, per Parke, Bi ; Berkeley y. Watling, 7 A. & E. 29. (i) See Fox v. Nott, SOL. J. Exch. 259. {k) In the case of Gurmy v. Behrend, 3 EI. & B. 622, Lord Campbell, C. J. draws a distinction between a bill of exchange and a bill of lading : — "A bill of lading is not, like a, bill of exchange or promissory note, a negotiable instrument, which passes by mere delivery to a bond fide transferee for valuable consideration, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank a bill of lading, deliverable to his assigns, his right is not affected by an appropriation of it without his authority. If it be stolen from him, or transferred without his authority, a subsequent bond fide transferee for value cannot make title under it as against the shipper of the goods. The biU of lading only represents the goods, and in this instance the transfer of the symbol does not operate more than a transfer of what it represented. " The statute 18 & 19 Vict. c. Ill, to amend the law relating to bills of lading, recites that, " Whereas, by the custom of merchants, a bill of lading 144 STOPPAGE IN TRANSITU. One of the earliest cases on record shows that the title of the indorsee of a bill of lading may be rendered void on the ground of fraud. In Wright v. Campbell (I), the question arose on a consignment of goods to a factor, who, by indorse- ment, assigned the bill of lading to a third person ; and Lord Mansfield said that, "if the goods are bond fide sold by the factor at sea, as they may be where no delivery can be given, the sale will be good ; the vendee shall hold them by virtue of the bill of sale, though no actual possession is deli- vered ; and the owner can never dispute with the vendee, because the goods were sold bond fide, and with the owner's of goods, being transferable by indorsement, the property in the goods may thereby .pass to the indorsee ; but, nevertheless, all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is expedient that such rights should pass with the property ; And whereas it freq^uently happens that the goods in respect of which bills of lading purport to be signed have not been laden on board, and it is proper that such bills of lading in the hands of a bond fide holder for value should not be questioned by the master or other person signing the same on the ground of the goods not having been laden as aforesaid, Be it therefore enacted : 1. Every consignee of the goods named in the bill of lading, and every indorsee of a bUl of lading to whom the property in the goods therein men- tioned shall pass, upon or by reason of such consignment or indorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities, in respect of such goods, as if the contract contained iu the bill of lading had been made with himself. 2. Nothing herein contained shall prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or indorsee by reason or in consequence of his being such consignee or indorsee, or of his receipt of the goods by reason or in consequence of such consignment or indorsement. 3. Every bill of lading in the hands of a consignee or indorsee for valuable consideration representing goods to have been shipped on board a vessel, shall be conclusive evidence of such shipment as against the master or other person signing the same, notwithstanding that such goods or some part thereof may not have been so shipped, unless such holder of the bill of lading shall have had actual notice at the time of receiving the same, that the goods had not been in fact laden on board : Pro- vided that the master or other person so signing may exonerate himself in respect of such misrepresentation by showing that it was caused without any default on his part, and wholly by the fraud of the shipper, or of the holder, or some person under whom the holder claims." (I) i Burr. 2046 ; 1 Bl. 628. According to the report in Blackstone, Yates, J. expressed a doubt " whether an assignment of a bill of ladin" made it negotiable in the same degree as a biU of exchange.." DEPOSIT OF BILL OF LADING IN SECURITY. 145 own authority." And in the same case (m), Lord Mansfield laid it down that, "since the case in Lord Raymond (n), it had always been held that the delivery of a bill of lading transferred the property at law." Buller, J. also said, " that the case of Wright v. CaTnpbell was decided by the Judge at Nisi Prius upon the ground that the bill of lading trans- ferred the whole property at law ; and when it came before the Court on a motion for a new trial. Lord Mansfield con- firmed that opinion ; but a new trial was granted on a sus- picion of fraud ; therefore, it is fair to infer that if there had been no fraud, the delivery of the bill of lading would have been final " (o). The vendees of goods, having accepted a draft for the price in exchange for bill of lading and policy of insurance, returned the bill of lading and policy to the vendors' agent, to hold as security against their acceptance until the goods arrived or were sold ; and afterwards, and before the arrival of the goods, the vendees obtained the bill of lading and policy from the vendors' agent upon a false representation that they had sold the goods, and thereupon deposited the bill of lading and policy with their bankers, as security for past and future advances. Before the arrival of the goods, the vendors telegraphed their agent to stop delivery, and sent him a second bill of lading, upon which he obtained the goods, giving the captain an indemnity — the bankers, plaintiffs in the action, having previously presented the bill of lading indorsed to them, and claimed the goods. It was held (p), that the first bill of lading having been obtained by fraud from the vendors' agent and so indorsed to the plaintiffs, they must bear the consequences of that fraud. (m) According to a note taken by Bnller, J., as stated in Lickbarrow Y Mason, 2 T. R. 75. (ai) Evans v. MartUtt, amte, p. 140. (o) See Whitmore v. Lloyd, 2 F. & F. 36. {}>) The Marie Joseph, 13 W. R. 112. L 146 STOPPAGE IN TEANSITXJ. though not participating in it ; and that as against them the vendors' right to stop in transitu was not extinguished. Where several bills of lading have been signed of different imports, no reference is to be had to the time when they were signed by the captain, but the person who first gets one of them by a legal title from the owner or shipper has a right to the consignment ; and where such bills of lading, though different upon the face of them, are constructively the same, and the captain has acted bond fide, a delivery according to such legal title will discharge him from aU. In the case of Caldwell v. Ball (q), it appeared that Thomp- son, of Jamaica, shipped goods on boai'd a vessel of which the defendant was master. He signed, as usual, three bills of lading ; the first, to deliver to Fairbrother or his assigns, was sent by Thompson to Fairbrother, his London corre- spondent ; the other two were taken to order or assigns. Thompson then pledged the goods with France & Co., and indorsed to them one of the bills of lading. Fairbrother indorsed the bill of lading in his possession to the plaintiffs, who advanced money for the use of Thompson. The defen- dant delivered the goods to the representatives of France & Co. The plaintiffs brought trover against the captain, but the verdict was in his favour, and the Court of King's Bench refused to disturb it. Buller, J. said, — " The principal objection was, that as there were different bills of lading, the defendant was bound to deliver the cargo according to the first bill of lading actually signed. Now, as to this, it is material to consider the nature of a bill of lading. It is an acknowledgment under the hand of the captain, that he has received such goods, which he undertakes to deliver to the person named in that bill of lading. It is assignable in its nature, and by indorsement the property is vested in the assignee. It is now clearly settled that goods at sea may be (?) 1 T. R. 205. INDORSEMENT OF BILL OF LADING. 147 SO assigned. This doctrine is laid down in Evans v. Mart- lett (f), and is recognised by Lord Mansfield in Wright v. Campbell (s). It is argued t^at the captain must be answer- able at all events in this action, because he signed the first bill of lading to the order of Fairbrother, who indorsed it to the plaintiffs. I think it very material to consider who Fair- brother was. He had no interest in these goods, and he was known to all the parties to be the agent of Thompson. Then Fairbrother must be considered as Thompson himself The bills of lading were all to the order of Thompson, he had then the absolute control over the goods, and might have iinshipped them if he had so pleased. So that they are not like goods consigned to a third person, for they remained under the power of Thompson all the time till he indorsed the bills of lading. If Thompson and Fairbrother are to be considered as the same pei'son, it is the same as if the bills of lading were to the order of Thompson alone. Then the question is, who has the prior right under him ? How does the question stand as between the plaintiffs and France & Co. ? Both parties claim under Thomson, but France & Co. have the first legal right ; for two bills of lading were first indorsed to them, and the letter which conveyed the other bill of lading to Fairbrother apprised him at the same time of this indorsement." The indorsement and delivery of a bill of lading to a creditor prima facie conveys the whole property in the goods from the time of its delivery. Hihhert v. Carter (t) was an action brought on a policy of insurance on goods shipped to the plaintiffs. It appeared in the course of the trial, that previously to the insurance being effected, the consignor of the plaintiffs had indorsed the bill of lading to one of his creditors. Buller, J. ruled that the indorsement of the bill of lading passed the whole property, and nonsuited (r) 1 Lord Raym. 271. (s) 4 Burr. 2051. {t) 1 T. E. 745. L 2 "148 STOPPAGE IN TRANSITU. the plaintiffs, on the ground that the consignor of the- plaintiffs having assigned the bill of lading before the insu- rance was actually effected, the averment in the declaration- that the goods had been insured on his account was not true, for he had not then any insurable interest i-emaining in him. The Court of King's Bench confirmed this ruling, they were all of opinion that where a bill of lading is taken by a creditor as a security for his debt on his own account, the whole property passes by the delivery, and is to be considered as a satisfaction of the debt pro tanto. A new trial, however, was granted on affidavits, explaining that the indorsement was not intended to bind the goods but only the net proceeds, * in which the verdict was for the plaintiffs. Although the indorsement and delivery of a bill of lading transfers the whole property in the goods to the consignee, yet on his insolvency the consignor may exercise the right of stoppage in transitu. In Fearon v. Bowers (u), Hall, of Salisbury, had written to Askell & Co., merchants, at Malaga, to send him twenty butts of olive oil, which Askell accord- ingly bought, and shipped them on three bills of lading to his own order. He sent an invoice and one of the biUs of lading indorsed to Hall, and at the same time sent to Jones, his partner in England, a bill of exchange drawn on Hall for the price of the oil, with another of the bills of lading indorsed to deliver to Jones. Hall not having paid his bill, Jones applied to the shipmaster, defendant in the action, who promised to deliver the oil to him. But the ship not being reportedto the Custom-house, the oil could not then be delivered ; and before it was delivered, the plaintiff produced the bill of lading sent to Hall, with an indorsement thereon by Hall to deliver the contents to the plaintiff, and also the invoice, upon the credit of which he had -advanced to Hall 2001. The shipmaster, however, delivered the oil to Jones. («) 1 H. Bl. 364, n. DELIVERY OF BILL OF LADING. 149 Merchants were examined on both sides, and seemed to agree that the indorsement of a bill of lading vests the property ; but that the original consignor, if not paid for the goods, had a right by any means that he could to stop their coming to the hands of the consignee till paid for. One of the wit- nesses said that he had a similar case before the Chancellor, who, upon that occasion said he thought the consignor had a right to get the goods in such a case back into his hands in any way, so as he did not steal them (x). Lee, C. J., in summing up the evidence, said that, nakedly considered, a bill of lading transfers the property, and a right to assign that property by indorsement ; that the invoice strengthens that right by showing a further intention to transfer the property. But it appeared in this case, that Jones had the other bill of lading so as to be a curb on Hall, who, in fact, had never paid for the goods. And it appeared by the evidence, that according to the usage of trade, the captain was not concerned to examine who had the best right on the dijfferent bills of lading ; all he had to do was to deliver the goods upon one of the bills of lading, which was done. The jury, therefore, were directed to find a verdict for the defen- dant, which they accordingly did (y). Burghall v. Hovjard (z) was an action on the case upon the custom of the realm against a shipmaster as a carrier. Burghall, of London, had given an order to Bromley, of Liverpool, to send him a quantity of cheese. Bromley accordingly shipped a ton of cheese on board a vessel of which the defendant was master, on a bill of lading to deliver to Burghall in London. The ship arrived in the Thames, but Burghall having become a bankrupt, the defen- (x) Snee v. Preseoit, 1 Atk. 248. (j^) See Mills v. Ball, 2 B. & P. 457 ; The Constcmtia, 6 Eob. 321 ; TU Tigress, 32 L. J. Adm. 97 ; Patomi v. Campbell, 12 M. & W. 277 ; Lindsay ■V. Barron, 6 C. B. 291 ; Horton v. Earl of Devon, 4 Exch. 495 ; Cramhay v. Thornton, 2 M. & Cr. 1. {z) 1 H. Bl. 366, n. 1-50 STOPPAGE IN TRANSITU. dant was ordered, on behalf of Bromley, not to deliver the goods ; and he accordingly refused, though the freight was tendered. Lord Mansfield was of opinion that the plaintiffs, the assignees of Burghall, the vendee, had no foundation to recover, and said, '' he had known it several times ruled in Chancery, that where the consignee became bankrupt, and no part of the price had been paid, it was lawful for the consignor to seize the goods before they come to the hands of the consignee, or his assignees ; and that this was ruled, not upon principles of equity only, but upon the laws of property." In Appleby v. Pollock (a), it appeared that one Brand shipped certain goods at Leith, -and consigned them to one Stratton, in London, Stratton, as soon as he received the bill of lading, by indorsement thereon, assigned the goods to ■the plaintiff for 160?., and soon afterwards became bankrupt. Brand, hearing of the bankruptcy, took process out of the Court of Session in Scotland, to attach the goods in the hands of Pollock, the master of the ship; but the ship having left Leith, the process was executed at sea. Upon the arrival of the ship at London, the master refused to deliver the goods to the plaintiff, Appleby, unless he would indemnify him against the process in Scotland, and there- upon Appleby brought this action to recover the value of the goods. At the trial of the cause, the Chief Justice declared himself to be of opinion that the assignment gave the plaintiff a sufficient property to maintain the action, if, under the circumstances, he was entitled to do so, The general question, upon the right of the consignor to stop the goods and countermand the delivery, as against an assignee of the bill of lading, does not appear to have been raised ; parol evidence was given, that by the law of Scotland, if goods are arrested, the holder must give security not to part with (a) Abbott on Sbipping, iSS, ASSIGNMENT OF BILL OF LADING. 151 them, and the defendant relied on the effect of the process by which these goods were attached ; as to which the Chief Justice said, — " If the process could have attached these goods, it could only have done so within the jurisdiction of the Court, and it lay upon the defendant to make that out ;" and he therefore directed the jury to find a verdict for the plaintiff to the value of the goods. Although a consignor may stop goods in transitu before they get into the hands of the consignee in the event 'of his insolvency, yet if the consignee has assigned the bill of lading to a third person for a valuable consideration, the right of the consignor as against such assignee is divested ; and there is no distinction in this respect between a bill of lading indorsed in blank and an indorsement to a par- ticular person. In Lichharrow v. Mason (b), it appeared that Turing & Son, merchants, at Middlebourg, in the pro- vince of Zealand, had shipped goods for Livei"pool, by the order and directions and on the account of Freeman, of Eotterdam, and had drawn bills of exchange upon him for the price, and taken from the master three bills of lading for deliveiy of the goods to order or assigns, two of which they indorsed in blank, and transmitted them, together with an invoice, to Freeman, who sent them and the invoice to the plain- tiffs at Liverpool, in the same state in which he received them, in order that the goods might be taken possession of and sold on his account, and he drew bills of exchange upon them to nearly the value of the goods. Freeman and the plaintiffs accepted the bills of exchange drawn upon them respectively. Before the arrival of the ship at Liver- pool, and before the bills of exchange fell due, Freeman became bankrupt. Turing & Son, having heard of the bank- ruptcy, indorsed the bill of lading which had been retained by them specially to the defendants, who thereupon received (i) 2 T. K. 63. 152 ■ STOPPAGE IN TBANkSITU. deliveiy of the goods from the master. Turing & Son paid the bills of exchange drawn by them upon Freeman, and the plaintiffs paid those which had been drawn upon them by Freeman. The Court of King's Bench decided that by an assignment made by the consignee for a valuable con- sideration, and without notice to the assignee that the goods were not paid for, the property was absolutely transferred to the assignee, and that the consignor was by such assignment deprived of the right to stop the goods in transitu, which, as against the original consignee, he might have exercised. The •Court proceeded upon these grounds : — 1. That by the trans- mission of a bill of lading, in which the goods were made deliverable to the consignee by name, or to the shipper's •order, with an indorsation, either in blank, or to the con- signee expressly, the property is legally vested 'in the con- signee. 2. That a bill of lading is a negotiable instrument, and the property vested by it may be as effectually transferred by indorsement and delivery, as the right to the sum in a bill of exchange may be transferred to an indorsee. 3. That the privilege of stopping in transitu having been introduced merely as an equitable exception, on the vendee's failure to pay the price, it cannot operate against his indorsee, who has given a valuable consideration, trusting to the indorsement of the negotiable instrument, as he would have advanced money on an indorsed bill of exchange ; and against whom, there- fore, no claim of equity can lie, available to a person who, by his own act, has enabled the consignee to deceive him. From this decision there was an appeal, by writ of error to the" Ex- ■chequer Chamber (c), and that Court, consisting of the Judges of the Courts of Common Pleas and Exchequer, reversed the judgment of the Court of King's Bench, holding that a biU of lading is merely the evidence of a contract for the carriage and delivery of goods ; and that the assignment gave to the (c) Masony. Licklarrou:, 1 H. Bl. 357. ASSIGNMENT OF BILL OF LADING. 153 assignee no other right or title than that wTiich the con- signee himself possessed, and consequently that the consignor had a right to stop the goods, and prevent their delivery to the assignee. This judgment was brought before the House of Lords, and a venire de novo awarded. In the new trial, a special verdict was found of the same facts as formerly set forth, with this addition, — " that by the custom of merchants, bills of lading, expressing goods or merchandise to have been shipped by any person or persons, to be delivered to order and assigns, have been and are, at any time after such goods have been shipped, and before the voyage per- formed for which they have been or are shipped, negotiable and transferable by the shipper or shippers of such goods, to any other person or persons, by such shipper or shippers indorsing such bills with his or their name or names, and delivering or transmitting the same so indorsed, or causing the same to be so delivered or transmitted to such other person or persons ; and that by such indorsement and delivery or trans- mission, the property in such goods hath been and is transferred and passed to such other person or persons ; and that by the custom of merchants indorsements of biUs of lading in blank, that is to say, by the shipper or shippers with their names only, have been, and are and may be, filled up by the person or persons to whom they are so delivered or transmitted, as aforesaid, with words ordering the delivery of the goods or ■contents of such bills of lading, to be made to such person or pe¥sons ; and according to the practice of merchants, the same, when filled up, have the same operation and effect, as if they had been made or done by such shipper or shippers, "when he or they indorsed the bills of lading with their names, as aforesaid " (d). The Court of King's Bench, without argu- ment, declared that they adhered to their former decision ; and in order that the question might again be carried to the House (d) 5 T. R. 686. 154 STOPPAGE IN TRANSITU. of Lords, another writ of error was brought, but it was after- wards abandoned ; and it is now the admitted doctrine, that the consignee may, by indorsement of the bill of lading for valuable consideration, and without notice, confer an absolute right and property upon an indorsee, indefeasible by any claim on the part of the consignor, to stop in transitu. In a subsequent case (e), Eyre, C. J. said on this point, — " The bill of lading operates as in my judgment it ought to operate ; it operates as evidence of a change of property, and as such I have no diflficulty, and never had, in giving it its full effect; Ninety-nine times in a hundred the indorsement of a bill of lading will be conclusive evidence of the alteration of pro- perty, without ascribing to it the effect of a legal instru- ment"(/). The delivery of a shipping note by the consignee of goods to a third person, with an order to the wharfinger to deliver the goods to such third person as soon as they should arrive, does not pass the property in them so as to prevent a stoppage in transitu by the consignor. In giving judgment in Alcerman V. Humphrey (g), Burrough, J. said, — " I do not think tha* the giving of the shipping note and delivery. order to the plaintiff made a change of the property, and I think the shipping note does not amount to a bill of lading. A bill of lading is exactly Uke a bill of exchange, and the property it refers to passes by indorsement on it, but not by delivery of it without indorsenient. I do not think that the shipping note, from the nature of it, is indorseable, and here, in 'point of fact, it is not indorsed ; therefore, in my judgment, there was no change of property." The property in goods passes by the indorsement and delivery of the bill of lading by the consignee to another bon^ fide, for a valuable consideration and without collusion («) Maille t. Smith, 1 B. & P. 570. (/) See also Kemp v. Canavtati, 15 Ir. C. L. Ecp. N. S. 216. (g) I C. & P. .53. ASSIGNMENT OF BILL OF LADING. 155 with the consignee, although the indorsee knew at the time that the consignor had not received money-payment for his goods, but had taken the consignee's acceptances payable at a future day not then arrived ; and after such assignment of the bill of lading, the consignor cannot stop the goods in transitu upon the insolvency of the original consignee. In Cuming v. Brown (A.), the original consignee wrote at the foot of the invoice " Payable by bill on London at three months." The bill was drawn and accepted. The consignee afterwards indorsed the bill of lading bond fide for a valuable considera- tion, but left his own acceptance unpaid. The goods arrived at the port of destination, and were demanded by the plaintiff, who was indorsee of the bill of lading. The master of the ship, defendant in the action, refused to deliver them, having been indemnified by the agent of the consignor, who claimed to stop the goods in transitu. It was admitted by the indorsee of the bill of lading that he had taken it as a security for 5001. already due, and for a further advance of 1,300Z. ; also, that he was aware the goods had not been actually paid for, but that he understood and believed that they had been sold and bought in the course of trade, and that they would be paid for or credit given in the course of business. At the trial. Lord Ellenborough, C. J. left it to the jury to consider whether the indorsement was made to the plaintiff for a valuable consideration, and whether he had then notice of any circumstance which ought in fairness to have prevented his taking it ; and under this direction the jury found a verdict for the plaintiff. A rule for a new trial having been obtained, it was afterwards discharged. Lord Ellenborough, C. J. delivered the judgment of the Court. After stating the facts, he said, — " The question is whether the indorsement of the bill of lading in this case passed the. property of the goods, the plaintiff having notice that the {h) 9 East, 505. 156 STOPPAGE IN TRANSITU. goods had not been paid for in money. It must be taken to have been found that the indorsement was bond fide, for valuable consideration, and without notice of any circum- stance which ought in fairness to have prevented the plaintiff taking it ; unless, indeed, notice that the goods had not been paid for in money be such circumstance. But to render this circumstance one which ought in fairness to have pre- vented the assignee of the bill of lading from taking it, it should have appeared that the consignor by the terms of his dealing with the consignee, had bargained for or expected that the payment should precede the assignment of the bill of lading. But if we look at the actual facts of the case, as between the consignor and consignee, by the memorandum at the foot of the invoice transmitted before the bill of lading, the price of the goods was " payable by bill on London at three months ;" and at the time of the consignment, the consignee had done all that such bargain required, by having accepted a bill on London at three months, which was not due at the time of the indorsement of the bill of lading. If, therefore, the plaintiff had known all the circumstances of the case as they stood between consignor and consignee, he would haVe known nothing which should have made it unfair in the consignee to assign, or in himself to accept, the assignment of the bill of lading. If he had assisted in contravening the actual terms of the sale on the part of the consignor, or his reasonable expectations arising out of them, or his rights connected therewith, it would have been otherwise, and he would in that case have stood in the same situation with the consignee. If, for instance, he had known that the consignee had been in insolvent circumstances, and that no bill had been accepted by him for the price of the goods, or that, being accepted, it was not likely to be paid ; in that case, the inter- position of himself between the consignor and consignee, in, order to assist the latter to disappoint the just rights and expectations of the former, would have been an act done in ASSIGNMENT IN SECURITY TO PARTNER. 157 fi-aud of the consignor's right to stop in transitu, and would therefore have been unavailable to the party taking an assignment of the bill of lading under such circumstances, and for such purpose ; but here any knowledge or suspicion of the kind on the part of the plaintiff is negatived expressly. And if a bill of lading should be held by us not assignable under these circumstances, the consequence would be that no bill of lading could be deemed safely assignable before the goods arrived, unless the assignee of the bill of lading was per- fectly assured that the goods were paid for in money, or paid for in account between the parties, which is the same thing ; a position which would tend to overturn the general practice and course of dealing of the commercial world on this subject, and which is warranted, as we conceive, by no decided case upon the subject (i). If the consignee of goods, to whom the bill of lading is indorsed in blank, assign it over as a security for acceptances given by the assignee not amounting to the value of the goods, and afterwards by an agreement between them, they become partners in the goods, by which agreement it appears that the consignor has not been paid for them, the assignee of the bill of lading cannot maintain trover against the consignor if he stop the goods in transitu upon the insolvency of the consignee. In Salomons v. Nissen (Jc), Hague bought lead for 1,000Z. from the defendant at Liverpool, and ordered it to be shipped to Rouen. The lead was accordingly shipped, and the bill of lading was indorsed by the defendant in blank, and sent to Hague. The plaintiiff and Hague agreed to becoijae partners in the transaction ; the plaintiff giving HagTie a bill for 700^., and receiving in return the bill of lading indorsed. The vessel sailed with the lead for Rouen, but was forced back to port by stress of weather. Hague having become bankrupt, the defendant stopped the goods, as (j) See Schuster v. McKdlar, 7 E. & B. 704. {k) 2 T. R. 674. 158 STOPPAGE IN TRANSITU. not paid for, and took possession of them. Salomons brought trover, and the question was, whether the defendant was entitled to exercise the right of stoppage. The Court of King's Bench held that he was so entitled, and- distinguished the case from that of Liclcbarrow v. Mason, on the ground expressed by Ashurst, J., in his judgment ; — " because it appeared that the plaintiff had made himself a complete partner with Hague quoad the transaction ; he also made himself the paymaster, and therefore put himself in the place of the original consignee, and must hold the bill of lading subject to the rights of the consignor against the consignee ; " and Grose, J. said that one partner could not recover those goods which the other could not recover. If a bill of lading be taken specially indorsed with a con- dition, such is binding on any party to whom the bill of lading may be transferred. In Barrow v. Coles (l), by a bill of lading specially indorsed, goods were deliverable to Voss, if he should accept and pay a bill of exchange drawn upon him for the price, and if not, then for delivery to the holder of the draft. Voss accepted the bill of exchange, and indorsed the bill of lading for a valuable consideration to the defendant ; but he did not pay the draft when it became due. Lord Ellenborough held, that the special indorsement on the bill of lading ought to have made the defendant inquire whether the condition on which the goods were deliverable to Voss had been fulfilled ; and after the dis- honour of the bill of exchange, Voss had no title to the goods, but that the property in them vested in the holder of the draft. Where goods were consigned on the joint account of the consignor and consignee, and a bill of lading was sent to deliver the goods to the consignee, or his assigns ; and the consignee afterwards indorsed and delivered it to the (Z) 3 Camp. 92. CONSIGNMENT ON JOINT ACCOUNT. 159 - indorsees, upon condition of their making an advance to him on it, which they failed to do, but claimed to retain it as a security for prior advances ; it was held that such indorse- ment and delivery of the bill of lading did not divest the consignor's right to stop the goods in transitu upon the insolvency of the consignee who had not paid for them. This was decided in Newsom v. Thornton (m), tried before Lord EUenborough, C. J. It appeared that the plaintiff was a merchant in Cork, and that he had consigned provisions to Church, of London, on joint account, and had sent him an indorsed bill of lading, which he pledged with the defendants, arid soon afterwards became a bankrupt. The plaintiff endeavoured to obtain possession of the goods, but the captain delivered the goods to the defendants on their pro- ducing the bill of lading, and giving their indemnity. The plaintiff thereupon brought an action in trover. Lord EUenborough directed the jury that, as the goods were con- signed to Church, on the joint account of himself and the plaintiff, though he had a right to pledge it as joint owner, yet having agreed to pledge it to the defendants only on condition of a further advance from them, and they having obtained possession of the bill of lading from his clerk, with his indorsement, in the absence of Church, without complying with that condition, they had no right to retain the goods against the plaintiff, who had applied in time to stop the delivery of them while in transitu, and who was therefore entitled to recover the value ; and the jurjr found a verdict for the plaintiff accordingly. The Court of King's Bench refused to disturb the verdict. Lord EUenborough, C. J. said, — " As there was no considera- tion paid for the bill of lading by the defendants, they not having in fact made any advance upon it as they had engaged to do, and upon the faith of which it was agreed to be (m) 6 East, 17. 160 STOPPAGE IN TRANSITtr. deposited with them, there was nothing to divest the original right subsisting in the consignor to stop the goods in transitu, upon the insolvency of the consignee who remained debtor for them. I should be sorry if anything fell from the Court which weakened the authority of Lickharrow v. Mason (n), as to the right of a vendee to pass the property of goods in transitu by indorsement of the bill of lading to a iond fide holder for a valuable consideration, and without notice. A bill of lading, indeed, shall pass the property upon a bond fide indorsement and dehvery, where it is intended so to operate, in the same manner as a direct delivery of the goods themselves would do, if so intended ; but it cannot operate further. I consider the indorsement of a bill of lading, apart from all fraud, as giving the indorsee an irrevocable, uncountermandable right to receive the goods, that is, where it is meant to be dealt with as an assignment of the property in the goods, but not where it is only meant as a deposit by one who had no authority to do so.'' Lawrence, J. said, — " In the case of Lickharrow v. Mason, some of the judges did indeed liken a bill of lading to a bill of exchange, and considered that the indorsement of the one did convey the property in the goods in the same manner as the indorsement of the other conveyed the sum for which it was drawn. But when the case was before the Exchequer Chamber, there was much argument to show, that in itself the, indorsement of a bill of lading was no transfer of the property, though it might operate as such in the same manner as other instru- ments — may be evidence of the transfer of property. As, if goods be sold by a merchant abroad to his correspondent here, and the bill of lading be sent to him indorsed, to deliver the goods to the vendee or his order ; there the transfer of the goods may be evidenced by such indorsement. And if the vendee part with the property in the goods whilst (n) Ante, p. 151. INDOESEMENT OF BILL OF LADING TO FACTOB. ' 161 they are still in transitu, and before his property in them is divested by the vendor's stopping them in transitu, and which assignment of the vendee's property may be. evidenced in like manner by his indorsement to another, then, according to Lickbarrow v. Mason, the original vendor's right to stop them in transitu would be divested. Therefore, all that that case seems to have decided is, that where the property in the goods passed to a vendee, subject only to be divested by the vendor's right to stop them in transitu, such right must be exercised, if at all, before the vendee has parted with the property to another for a valuable consideration, and bond fide, and by the indorsement of the bill of lading giving him a right to recover them." An unpaid vendor may stop in transitu before the goods come to the hands of the vendee's factor, although the factor has the bill of lading, indorsed to order, in his hands, and is under acceptance to the vendee on a general account. In the case of Patten v. Thompson (o), wheat was sold by the plaintiff to Hickman & Co., of Dublin, and shipped for Liverpqfll. Bills of lading were taken deliverable to Hick* man & Co.'s assigns, which were transmitted, and the plaintiff drew upon them for the price.' Hickman & Co. had extensive transactions with a Liverpool house, which received their consignments and accepted their drafts. Hickman & Co. sent a bill of lading for the cargo of wheat to their Liverpool correspondent, indorsed. They drew very extensively on him about this time, and wrote to him that they had done so ; but there was nothing in the letter to show an intention to appropriate the bill of lading specifically as a security for any of the defendants. The Liverpool correspondent insured the goods and accepted the drafts. Before the ship arrived both Hickman & Co. and the Liverpool house failed ; the plaintiff stopped the goods in transitu, on the one hand ; and (o) 5 M. & S. 360. 162 STOPPAGE IN TRANSITU. the assignee of the Liverpool house went on board and claimed and got possession of the wheat, on the other. The plaintiff brought trover against him. It appeared that at the time of the transmission of the bill of lading, and of the failures, the Liverpool house was under acceptances for Hickman & Co. to a larger amount than that of the bills and goods remitted ; but that, in consequence of the failure of the Liverpool correspondent to make good part of his acceptances, the balance was in favour of Hickman & Co. The Court of King's Bench decided that the vendor was entitled to stop the goods. Lord Ellenborough said, — "If it is to be taken, that the cargo was consigned to the Liverpool House, as a security for advances made by them, this may afford a ground for their claim to detain the same until such time as they are indemnified against these ■ advances, or the responsibility they have contracted in respect of the cargo. But the case, as it now stands, seems to me to go further, and the defendant, in order to succeed in his claim, must make out this position, that wherever a principal consigns goods to his factor for sale, and is at the same time in a course of drawing on the factor upon account, this single circumstance of there being mutual credits between them, does of itself give to the factor a right, not merely to detain such consignments as shall come to his hands, but to anticipate the possession and keep it against the unpaid seller. If there had been any specific pledge of this cargo in the course of the transaction ; if bUls had been accepted by the Liverpool house on the credit of this particular consignment, or if it had been so stipulated, this would have been a different case. But it appears from the whole transaction, that this is a mere naked case of a factor, to whom a quantity of wheat is consigned for the purpose of being sold by him, and who is to account for the sale, and render the proceeds to his principal. In such a case, if the factor has received the INDORSEMENT TO FACTOR. 163 proceeds, he will be entitled to his lien upon them, to the extent of his indemnity, but he can have no rights ante- cedently to possession, in respect of the consignment, but such as he has in his representative character of factor, in order to effect the object of the consignment." After considering the right of the parties, and the cases bearing upon the question, he added, — " It seems to me, that this is neither the case of a pledge by way of security for advances made, nor of an assignment of the bill of lading, except for the purpose of enabling the factor to receive the property, and carry it to the account of his principal. Here, the unpaid vendor is not deprived of his right, in consequence of the failure of the vendee, to stop in transitu ; and, there- fore, the plaintiff is entitled to judgment, he having done all in his power to stop the cargo, by laying claim to it ; which, was frustrated only by the messenger seizing the cargo in spite of the captain's undertaking to hold it for the plaintiff" Abbot, J. expressed a doubt whether the transaction did not amount to a pledge of the bill of lading; he said,^ — ^"I am not prepared to say, that, upon the facts here stated, it might not be fairly argued, that the Liverpool house accepted the drafts enclosed to them, upon the faith of this very cargo, the bill of lading for which, they received by the same letter; this, perhaps, was a question of fact for the jury. But, taking this case as one between principal and factor, who were engaged in a general course of dealing, the principal consigning to his factor from time to time cargoes to be sold for his account, and remitting bills, and drawing upon him in such manner as to form a general account between them, I should have required further time to consider whether, if the factor might have retained this cargo, had it come to his possession, he would not also have had a right to insist upon taking possession, in order that he might retain. Kinlock v. Craig (p) differs (p) A nte, p. 20. M 2 164 STOPPAGE IN TRANSITU. in this respect, that there the bill of lading was unindorsed. Perhaps, however, my doubt might, upon consideration, turn out to be not well founded ; and it is not material upon the present occasion, because here not only did the factors not take possession of the cargo, but they were not in a condi- tion to do so, or to perform the trast upon which it was sent to them, they having become bankrupts." The indorsement of a bill of lading, without consideration, does not transfer any property in the geods. Waring v. Cox{q) was an action of assumpsit- by the plaintiff as indorsee of a bill of lading for goods shipped on board a vessel of which the defendant was master. The goods in question had been sold by Everard, of Sligo, to Baggott & Co., of London, to whom one bill of lading, indorsed by Everard, had been forwarded. By virtue of this, Baggott & Co. got possession of the goods upon the ship's arrival at London. A -few days afterwards, the plaintiff demanded the goods from the master of the ship, under another bill of lading which he had received from Everard, and upon which this action was brought. There was no evidence that the plaintiff had given value for the bill of lading ; in fact, he was merely Everard's agent, employed by him to stop the goods in transitu on account of the insolvency of Baggott & Co. It was objected for the defendant that the action could not be maintained by the plaintiff because, being an indorsee with- out value, he had no property in the goods. And it was contended on the part of the plaintiff, that, as indorsee of the bill of lading, he must be taken to have the legal property in the goods. Lord EUenborough said, — " I am decidedly of opinion that without value he has not. No case has gone so far as to decide that a bill of lading is transferable like a bill of exchange, and that the mere signature of the person entitled to the delivery of the goods primd facie passes the (?) 1 Camp. 369. INDOESEMENT WITHOUT CONSIDERATION. 165 property in them to the indorsee. There must be value upon the indorsement of a bill of lading, or no property in the goods is thereby transferred. The right of stoppage in transitu is a personal right of the vendor, and cannot be assigned to another by a mere indorsement of the bill of lading without consideration." The consignor of goods abroad, upon receipt of orders from a correspondent in this country shipped goods on account and at the risk of the consignee, and took bills of lading from the captain, making the goods dehverable to the consignor's own order, and transmitted one of such bills unindorsed, with the invoice, to the consignee, enclosed in a letter informing him that he had drawn upon him for the amount, which he doubted not would be duly honoured ; and by way of further precaution, the consignor sent another bill of lading, indorsed to his own agent. Upon the arrival of the goods, the con- signee obtained possession of them from the captain by the production of his unindorsed biU of lading. The consignee having become bankrupt, the consignor's agent demanded the goods by virtue of the indorsed bill of lading. The Court held in this case (r), that the shipment having been on account and at the risk of the consignee, the property in the goods vested in him, subject only to be divested by the consignor stopping them while in transitu ; and that, upon the amval of the goods, the consignee having obtained pos- session of them from the captain by the production of his unindorsed bill of lading, the property became absolute in the consignee, however wrongfully parted with by the captain without a competent authority from the shipper, and how- ever answerable the captain might be to the shipper on that account. Although the case was decided on the ground that the transitus had terminated, yet the Court expressed a strong opinion that in order to defeat the right of stoppage , (r) Qoxe v. Harden, i East, 211„ 166 STOPPAGE IN TRANSITU. in transitu, the bill of lading must have been transferred for a valuable consideration. Lord Ellenborough, C. J. said,— '' No decision of a court of law has ever gone further than to say, that the assignment of a biU of lading by the consignees for a valuable consideration, and without notice by the party taking it of a better title, passes the property in the goods thereby consigned. But no consideration having been paid by the plaintiff in this case for such assignment, he took the bill of lading merely as agent for the consignor, and without any propeily in himself in the goods. The analogy between bills of lading and bills of exchange has been pushed in the argument beyond all warrant of authority ; but I agree to the extent of the doctrine in the case of Lickbarrow v. Mason, that an indorsement of a bill of lading for a valuable consideration, and without notice by the indorsee of a better title, passes the property." But in Morison v. Gray (s), where "the consignor of goods, upon the insolvency of the consignee, transmitted a bill of lading to his agent, indorsed without consideration, for the sole purpose of enabling him to stop the goods in transitu, it was held by the Court of Common Pleas, that such indorse- ment confeiTed on the agent a special property sufficient to enable him to maintain trover in his own name against the wharfingers, in whose custody the goods were ; on the ground that the transit was not at an end when the demand was made. Best, C. J., in giving judgment, said, — " This is a clear case, and distinguishable from that of Waring v. Cox {t) on the ground that, at the time of the plaintiff's demand, the goods were in transitu. The only question for us after verdict is, whether the consignor, having a right to stop in transitu, has vested a right of action in the plaintiff by indorsement of the bill of lading. I agree with Lord Ellen- borough, that it is not every transfer of such a bill which will (s) 2 Bing. 260. (t) AiUe, p. 164. CIRCUMSTANCES EQUIVALENT TO INDORSEMENT. 167 transfer such a right ; but this -was a fair and usual transfer, and the consignor, having a right to stop in -transitu, ought not to have been compelled to go to the port of delivery himself, but might, for the same purpose, invest the plaintiff with a right to the goods ; and he could not do this more efficiently and correctly than by the general mode of trans- ferring a bill of lading. By so doing he has conferred a special property in the plaintiff, sufficient to entitle him to maintain an action in trover. The only ground for hesitation is, that in Ooxe v. Harden, the Judges doubted whether such an instrument could pass such a right. But the ground of decision in that case was, that the right of stoppage in transitu was at an end, here it continued." Although the indorsement and delivery of a bill of lading to the consignee does not necessarily enable him to divest the consignor's right of stoppage in transitu ; yet, where the circumstances are equivalent to an actual indorsement and delivery of the bill of lading, the consignee may be con- sidered to have sufficient authority to transfer the property consigned, so as to divest such right of stoppage. Dick v. Lumsden (u) was an action in trover for goods delivered to the defendant, to be conveyed in a ship of which he was master. The goods were sent by Thompson & Co., of Newry, to Eustace & Holland, their factors in London, for the purpose of being sold. Accordingly, there was trans- mitted a bill of lading, not regularly indorsed, but with the name of Eustace & Holland written on the back. They effected an insurance on the goods, and ■ wrote for an indorse- ment of the bin of lading. Thompson & Co. answered by letter, stating that if the bill of lading was not indorsed 'it was a mistake, and that they would send an indorsement ; on receiving this letter Eustace & Holland sold the goods. Thompson & Co. had drawn bills on Eustace & Holland, and (m) Peake, 189. 168 STOPPAGE IN TBANSITU, |;h6y not being able to pay them -when they became due, the plaintiff paid the bills for the honour of the drawers ; and knowing all the circumstances, he applied to them for an indorsement of the bill of lading, which they sent him ; he then demanded the goods of the defendant, the master of the ship, who refused to deliver them to him, but delivered them on a,n indemnity to the vendees of Eustace & Holland. Lord Kenyon ruled that "the plaintiff, knowing all the circumstances of the case, had no right to take the goods out of the , possession of the vendees of Evistace & Holland. Here the factors transferred the property, and having com- petent authority so to do, it was not essentially necessaiy that they should have the possession of the goods or an indorsement of the bill of lading." But if the circumstances are not sufficient to authorise a factor to transfer the property consigned to him, and the bill of lading is for delivery to order or assigns, and is trans- mitted unindorsed, the holder cannot, by a transfer of the possession of the goods, divest the consignor's right of the stoppage in transitu. In Nix v. Olive {x), the consignors, Abbott & Co., of Oporto, shipped wine to Fox, of London, and took bills of lading for delivery to order or assigns ; they transmitted to him one of these bills of lading unindorsed, and drew upon him for the price. Fox accepted the bill of exchange ; and the wine having arrived, he sold it to Nix, the plaintiff, who, however, did not get possession. Fox became bankrupt, and the defendants, who were the con- signors' agents, obtained the wine and sold it. The plaintiff brought trover against them for the value. It was contended on the part of the plaintiff, that there was no difference between the indorsement -of a bill of lading and sending it enclosed in a letter which stated that the wine had been ^hipped on account of the consignee. But Lord EUen- (x) Abbott on Shipping, i39. INDORSEMENT AFTER DELIVERY. 169 borough, C. J. was of a different opinion, and decided that the right of the consignors to stop the goods was not divested under these circumstances (y). If the delivery on board the ship of the consignee is com- plete, and no condition is imposed at the time, the property is absolutely vested in the consignee, and a subsequent indorsement of the bill of lading by the consignor is inoperative. In Ogle v. Atkinson (z), trover was brought against a warehouseman for refusing to restore goods delivered to him by the plaintiff for safe keeping, on the ground that they belonged to the consignors by whom they were shipped. It appeared that the consignors, being indebted to the plaintiff, accepted an order to purchase goods for him, which they executed. The goods were put on board the plaintiff's vessel as his goods, and he was advised of the shipment as on his account and at his risk, and an invoice was sent to him. The consignors procured bills of lading signed by the master to the order of blank, assuring him it was immaterial ; they then drew on the plaintiff, and transmitted the drafts and bill of lading to an agent in this country, with instructions that if the plaintiff would not accept the biUs of exchange, the agent should indorse over the bill of lading to the payee of the bills, which was accordingly done. It was held that, though the goods might have been delivered on condition of the plaintiff's accepting the bills, yet, no such condition having been imposed at the time of the delivery, that delivery on board the plaintiff's ship was complete, as vesting the property absolutely in the plaintiff, and the subsequent indorsement of the bill of lading was inoperative. But if a condition is imposed at the time of delivery on board a ship chartered by the consignee, the property of the goods is not vested in the consignee, and the consignor (2/) Seei)a«is v. Reynolds, 1 Stark. 115 ; 4 Camp. 267. {z) 5 Taun. 759 ; 1 Marsh. 323. 170 STOPPAGE IN TRANSITU. may stop in transitu by indorsing another bill of lading for that purpose. In Brandt v. Bowlby (a), which was an action by the consignors of goods against the owner of a vessel for not delivering them pursuant to bill of lading, it appeared that the consignee, having chartered a vessel, sent orders to the consignors, his correspondents abroad, to ship cargoes of wheat ; the consignors shipped a cargo of wheat on his account and at his own risk. The bills of lading were made for delivery to the shippers' own order : and they transmitted an unindorsed bill of lading to the consignee, and an indorsed bill of lading to their agents, with instructions to hand it over to the consignee, on his giving security by. bills for the price. He refused to give the required security. The master of the vessel in which the wheat was shipped, delivered it to the consignee, and not to the agents of the consignors, pursuant to the indorsed bill of lading. The Court of King's Bench held, that the property did not vest in the consignee abso- lutely upon the shipment, but only subject to a condition that the bills be accepted, and that in default of acceptance it never did vest in him. Park, J. said, — " The question in this case is, whether the property in the goods shipped ever vested in the consignee at all ? That depends entirely on the intention of the consignors ; it is said that they, by the very act of shipping the wheat in pursuance of the consignee's order, irrevocably, appropriated the property in it to him. I think that is not the effect of their conduct, for, looking at the correspondence, it manifestly appears that the property should not vest in the consignee, unless the bills were accepted ; as they were not accepted, he had not per- formed the condition on which the vesting of the property in bim was to depend, and therefore it never did vest in him." Though the indorsement of a bill of lading passes the property in the goods, yet the indorsement to the consignor's (a) 2 B. & AJ. 932 ; 1 L. J. K. B, U. INDORSEMENT TO PARTNER. 171 partner of one bill of a triplicate set, after a previous indorse- ment of one of the set to the consignee, is not such a nego- tiation as to prevent the right of stoppage. In delivering judgment in the case of The Tigress (b), Dr. Lushington said — " It was objected that the vendors could not claim the goods under a bill of lading indorsed to themselves, because they had previously indorsed a bill of lading to the vendee, and an indorsement of one bill of lading operated as an indorsement of all, and that a subsequent indorsement of the duplicate biU of lading by the vendors to themselves was therefore ineffectual. But he thought that position was opposed to the law as laid down in the case of Fearon v. Bowers (c). That case was cited with approbation in Lick- harrow V. Mason (d), alike by Lord Loughborough, in the Exchequer Chamber, and also by BuUer, J., in the House of Lords, and in no way infringed the doctrine that the indorse- ment of a biU of lading passes the property. In the case of Fearon v. Bowers, as in the present, the master had executed more than one bill of lading of the same tenor, under the usual proviso, that if one was accomplished the others were to stand void. The consignor indorsed one of the bills to the vendee and another to his own partner, with instructions to present it in case the vendee was not solvent. On the arrival of the vessel, the partner presented his bill of lading, and at the same time an indorsee for value from the vendee presented his bill of lading. The captain thought fit to deliver to the consignor's partaer, and the indorsee for value thereupon brought an action for detinue against the master. It was held by Lee, C. J. that, nakedly considered, a bill of ladiQg transferred the property and a right to assign that property by indorsement, but that, according to the usage of trade, the captain was not concerned to examine the best (b) 32 L. J. Adm. 97. (c) 1 H. Bl; 364 ; and adverted to in 1 Smith's Lead. Cas. 705, ante, p. 148. (d) 1 Sm. L. C. 681, anU, p. 151. 172 STOPPAGE IN TRANSITU". right in the different bills of lading ; all he had to do was to deliver the goods upon one of the bills of lading, which was done ; and the Chief Justice therefore directed the jury to find for the defendant. It was clear that that case was a stronger one than the present, for there the counter-claimant was an indorsee for value ; here there was no evidence of any indorse- ment for value or even of any claim by the vendee himself However, it was unnecessary to decide this case upon the claim by the vendors under the bill of lading, for it was clear that the use by them of the bill of lading was only auxiliary to their alleged right to stop in transitu. It -was clear that the vendors lost their right from the moment they indorsed the bill of lading to the vendee, for- the right, to stop is defeated by negotiating the bill of lading with a bond fide indorsee. However, according to his apprehension of the -meaning of the term ' negotiating,' there was no such fact in that case. All that appeared was that the vendor, on receiving the bill of exchange, indorsed over one of the bills of lading to the vendee. That was no negotiation of the bill of lading so indorsed, as would have been the case if, for instance, the bill of lading had been indorsed over by the vendee to a third party for a valuable consideration. Such latter trans- action might be called a negotiation, and would transfer such title to the property as the indorser had a right to convey free from the counter right to stop in transitu. But the rule of law, that the right to stop in transitu would not be affected by the mere fact of the vendor indorsing a bill of lading to the vendee, was scarcely to be doubted ; for he did not perceive how the right to stop in transitu could, in a large number of cases, be effectually exercised if it were otherwise" (e). Where goods are shipped on board a vessel of tlie con- jsignee, and by the bill of lading, specially indorsed subject to a condition, the goods are made deliverable to the consignee, (e) Thompson v. Trail, 6 B. & C. 36 ; Ourney v. £ehrend, 3 E. & B. 622 ; £i6xamv. Sanders, 4 B. & 0. 9dl ; Feise v, Wray, 3 East, 93. SPECIAL INDORSEMENT WITH CONDITION. 173 the consignor may alter the destination, and make the goods deliverable to any party, on refusal to perform the condition. In Mitchell v. Ede (/), Mackenzie, a planter, in Jamaica, being indebted both to the plaintiff, a merchant, in Jamaica, and to the defendants, merchants, in London, to a greater amoiint than the value of the goods in question, shipped a quantity of sugar on board a vessel belonging to the defendants. Mackenzie received from the captain a bill of lading, in which it was stated that the goods were to be delivered to the defendants or their assigns. Mackenzie indorsed the bill of lading with a condition that the goods were to be delivered to the defendants on their giving security to the agents of the plaintiff that they would pay the bill for advances made by the plaintiff, otherwise the sugar was to be delivered to the plaintiff's agents, and Mackenzie delivered the bill of lading so indorsed to the plaintiff. On the arrival of the goods in London, the defendants refused to comply with the condition indorsed on the bill of lading. It was contended, that the shipment of goods, with a bill of lading, in which the defendants were named as the consignees, vested the property in them ; that the ship, as to this transaction at least, was the ship of the defendants, and that the plaintiff, having taken the bill of lading with notice of the circumstances, he held it subject to all claims, legal or equitable, of the defendants. The Court of Queen's Bench held that, on the refusal of the defendants to comply with the condition, the property in the sugar passed to the plaintiff by the special indorsement and delivery of the bill of lading. Lord Denman delivered the judgment of the Court, and, with reference to the nature and operation of a bill of lading, he observed, — " It has become necessary to consider the effect of the bill of lading. This, it was contended in argument, was a contract between the owner of (/) 3 P. & D. 513 ; 11 A, & E. 888 ; 9 L. J. Q. B. 187. 174 STOPPAGE IN TEANSITU. the sugar on the one part, and the defendants in whose favour the bill of lading was made out, by their alleged agent, the captain, on the other ; and by virtue thereof, that the property passed absolutely to the defendants upon the signing of the bill of lading by the captain. We think, how- ever, that this argument proceeds upon a misconstruction of the nature and operation of the bill of lading. As between the owner and the shipper of the goods, and the captain, it fixes and determines the duty of the latter as to the person to whom it is, at the time, th,e pleasure of the former that the goods should be delivered. But there is nothing final or in-evocable in its nature. The owner of the. goods may change his purpose at any rate before the delivery of the goods themselves, or of the bill of lading to the party named in it, and may order the delivery to be to some other person. This therefore being, as we think it is, the true construction of the bill of lading and its efiiect, it is in our opinion con- clusive against the argument, that the property in the sugar was vested in the defendants by the captain's signature of it. Until the bill of lading is transferred by the owner of the goods to a third party, or until the goods themselves are delivered to the party named in the bill, the owner is entitled to alter the destination." But where orders for the goods have been given by the consignee, and executed by the consignor, and delivery has been made to the master of the ship, and bills of lading signed, the consignor cannot alter the destination, except in the event of the insolvency of the consignee {g). The delivery of a bill of lading indorsed, puts it in the power of the indorsee to transfer the property to a bond fide purchaser for a valuable consideration, and deprives the original owner of the right of stoppage in transitu ; but, as between the original parties, the consignor and consignee, (g) The Constantia, 6 Eob. 324, ante, p. 36. SUB-SALE WITHOUT BILL OF LADING. 175 the question whether the property passed will depend upon what the real contract was. Therefore, if the consignee is not in possession of the bill of lading, and he sells the goods to a third party before they have been delivered, the sub-vendee will take them subject to the consignor's right of stoppage in transitu for the purchase-money; as a sub-vendee cannot, except by bond fide transfer of a bill of lading for valuable consideration, stand in a better situation than his vendor. In the case of Jenlcyns v. Usborne (h), Tindal, C. J., in delivering the judgment of the Court, said, — " The actual holder of an indorsed bill of lading may undoubtedly by indorsement transfer a greater right than he himself has. It is at variance with the general principles of law that a man should be allowed to transfer to another a right which he has not ; but the exception is founded on the nature of the instrument in question, which being like a biU of exchange, a negotiable instrument for the general convenience of com- merce, has been allowed to have an effect at variance with the ordinary principles of law. But this operation of a bill of lading being derived from its negotiable quality, appears to us to be confined to the case where the person who transfers the right is himself in possession of the bill of lading, so as to be in a situation to transfer the instru- ment itself, which is the symbol of the propei-ty. In the present case, the consignee was not in possession of the bill of lading ; he had only an order on the captain to deliver the goods on arrival ; and when, under the circumstances stated in the case, that order was handed over to the de- fendant, it appears to us that although an interest in the contract passed to the defendant, the interest in the goods did not pass, as it would have done if the transfer had been by assignment of the bill of lading, but that such interest in the goods was still liable to be defeated by the insolvency of (h) 8 Scott, N. E. 505 ; 7 M. & G. 679. 176 STOPPAGE IN TEANSITir. the consignee, and a proper exercise of the right of stof)page in transitu." On a sale of goods by the agent of the vendor acting for an undisclosed principal, and followed by indorsement and delivery of the bill of lading to the vendee, for valuable consideration boTidJide and without notice, the vendor's right of stoppage in transitu is thereby defeated. Alexander & Co., merchants, at Londonderry, had instructed their corre- spondent, Ashlin, merchant, in London, to purchase corn on their account. Ashlin purchased a cargo of Indian corn and sent a contract note to the vendors, Ralli & Co., which stated that the cargo was " sold by order and for account of Ralli & Co. to our principals, shipped per ' Cleopatra,' at the price of 24s. 6d. per quarter." The entry of the sale in the books of Ralli & Co. made Ashlin debtor to the cargo of Indian com ; and they sent to Ashlin, the charter-party, the bill of lading duly indorsed, an invoice, and an order directing the captain to act upon the instnictiong of Ashlin. In the invoice Ashlin was made the purchaser of the cargo. On the day of the purchase Ashlin wrote to Alexander & Co., advising them of having purchased for their account the cargo at 24s. 9d. per quarter, and enclosing the bill of lading and other docu- ments received from Ralli & Co., as also Ashlin's draft for 1,525?. 16s. Sd. at three months, and an invoice signed by Ashlin, and stating that the cargo was bought by order and for account and risk of Alexander & Co. at 24s. 9d. per quarter. Ashlin afterwards wrote requesting the draft to be made payable at a banker's, as it facilitated discounting the bill. The draft was returned to Ashlin accepted. Ashlin, before the bill was due, became bankrupt, and Ralli & Co. thereupon stopped the cargo in transitu, not having received payment for it, on account of the bankruptcy of Ashlin, the cargo buyer. Alexander & Co. then wrote to Ralli & Co., stating that Ashlin, from whom, they 'bought the cargo, had informed them of its being stopped, and stating that INDORSEMENT BY AGENT. 177 "they would then take up their acceptance, upon the cargo being allowed to proceed. Alexander & Co. afterwards paid to Ealli & Co. 1,4<721. 3s., the amount of the cargo as invoiced by Ealli & Co. to Ashlin, upon being indemnified by Ealli & Co., and the cargo was allowed to proceed as ordered by Alexander & Co. In an action by the assignees of Ashlin to recover the amount of Alexander & Co.'s acceptance (i), it was held that the documents in the case showed that Ashlin was the purchaser of the corn from Ealli & Co. and the seller of it to Alexander & Co., and not merely an agent ; that, therefore Ealli & Co. had not at the time the right of stoppage in transitu, and that the assignees were entitled to recover in the action. In giving judgment. Lord Camp- bell said, — " If this was a sale by Ealli to Ashlin and by Ashlin to Alexander & Co. there was no right to stop in transitu on Ashlin's insolvency, after the re-sale and the bill of lading had been indorsed to Alexander & Co. We are influenced by the written documents evidencing the transac- tion, which, we think, satisfactorily show that Ealli & Co. treated Ashlin as the purchaser of the corn, and looked to him exclusively for payment." But in order to defeat the vendor's right of stoppage in transitu where the bill- of lading has been indorsed to a bond fide purchaser without notice, by the agent of the vendor^ it is necessary that the indorsement by such agent has been authorised by the vendor. In Gurney v. Behrend (Jc), Werthemann, of Amsterdam, bought of the defendants, mer- chants, at Dantzic, a cargo of wheat, which was shipped by the defendants in a ship chartered by them, under a bill of lading making it deliverable " to_ order or assigns," which they indorsed in blank and forwarded to their London agents with directions to follow the instructions of Werthemann, and also advising that bills had been drawn upon them for the (i) Pennelly. ALxander, 23 L. J. Q. B. 171. gc) 2.3 L. J. Q. B. 265 ; 3 E. & B. 622. 178 STOPPAGE IN TRANSITU. price. Wertliemann was in fact, acting for Pries, a London merchant, but that was not disclosed to the defendants. The draft was left with the London agents of the defendants for acceptance, and Pries on the same day became possessed of the bill of lading, and pledged it with the plaintiff, who gave bond fide value for it. On the evening of the same day. Pries was arrested on a criminal charge, and he after- wards became bankrupt. The London agents did not accept the draft, and they and Werthemann also failed. The defendants stopped the cargo in transitu, and the plaintiff brought trover. The Court held that, subject to the right of stoppage in transitu, the cargo vested in the vendee when the cargo was loaded and the indorsed bill of lading was sent by the defendants to their London agents ; that the right to stop in transitu could not be defeated by a bond fide indorsement for value of the bill of lading, unless it was so indorsed by the authority of the defendants, and that the delivery of the bill of lading by the London agents of the defendants to Pries, which the Court inferred, was not, under the circumstances of the case, an excess of authority, as no condition was imposed that the bill of lading should not be handed over before acceptance of the draft. The Court, therefore, gave judgment for the plaintiff. Lord Campbell, C. J., in delivering judgment, observed, — " Prima facie the defendants had a right to stop the wheat while it was in transitu, and they were unpaid vendors. The onus lies on the plaintiff to prove that he had become the owner, and that the right to stop in transitu was gone. For this purpose it is not enough that he had become bond fide holder of tlie indorsed bill of lading for valuable con- sideration. A bill of lading is not, like a bill of exchange or promissory note, a negotiable instrument which passes by mere delivery to a bond fide transferee for valuable considera- tion, without regard to the title of the parties who make the transfer. Although the shipper may have indorsed in blank AUTHORISED INDOESSMENT BY AGENT. 179 a bill of lading deliverable to his assigns, bis, right is not affected by an appropriation of it without his authority. If it be stolen from him, or transferred without his authority, a subsequent bond fide transferee for value cannot make title under it as against the shipper of the goods. The bill of lading only represents the goods, and in this instance the transfer of the symbol does not operate more than a transfer of what is represented. We are, therefore, to inquire whether this bill of lading is to be considered as having come into the possession of the plaintiff before the stoppage in transitu, with the authority of the defendants ; and this depends entirely upon whether the defendants authorised, their London agents to deliver it to Pries. But if this delivery to Pries was a misappropriation of the bill of lading, the stoppage in transitu would have been rightful. It is contended on the part of the defendants that their London agents had no authority to part with the bill of lading till they had accepted the bill of exchange drawn for the price of the wheat. If this be so, they certainly exceeded their authority, for their promise to accept, which was not treated by the agents of the defendants as an acceptance, would not have been a performance of the condition on which the right to part with the bill of lading depended. The defendants might easily have im- posed such a condition, had they suspected the solvency of the parties with whom they were dealing. But looking to the. correspondence, and to all the circumstances of the transaction, we are of opinion that no such condition was imposed. There is nothing on the bill of lading itself to indicate that it is not to be transferred till the bill of ex- change is accepted. The circumstances of the transaction, instead of raising the supposed condition by implication are rather inconsistent with it. We think that Pries, having lodged the credit according, to his undertaldng, was imme- diately eiititled to have the bill of lading delivered up to N 2 180 STOPPAGE IN TRANSITU. him on producing an order to that effect from Werthemann, and he could not be made to run the risk of a fall in the market in the interval elapsing before the bill was presented for acceptance. If the correspondence, be eqiii vocal, the con- struction to be put upon it ought rather to be against the party who places an indorsed bill of lading in the hands of third persons, and enables them to deal with others as if they had complete control over it, but in this case we think that the language of the defendants expressly and clearly authorised the unconditional transfer of the bill of lading to the purchaser. Ever since the great case of Lickharrow v. Mason (l), the law has been considered to be that the bond fide transferee for value of a bill of lading indorsed by the shipper or consignee, and put into circulation by the autho- rity of the shipper or consignee, has an absolute title to the goods, freed from the equitable right of the unpaid vendor to stop in transitu as against the purchaser ; and we believe it to be of essential importance to commerce that this law should be upheld." Where a bill of lading is indoirsed by the consignee, not absolutely, but in security for his debt, the right of the consignor, although defeated in law, will remain in equity, subject to the hen of the indorsee, and the vendor has a right to the residue. And if the indorsee of the bill of lading holds other goods of the consignee, the consignor is entitled to have the proceeds of those goods applied in the first place to discharge the claim of the indorsee, before the goods represented by the bill of lading are so applied. In Re Weatzinthus (m), it appeared that Westzinthus shipped oil at Leghorn on account and by the order of Lepage & Co., at Liverpool, and transmitted to them a bill of lading. Before the arrival of the oil, Lepage & Co. indorsed the bill of lading and deposited it with Hardman & Co., brokers, in Liverpool, who advanced money on it, having previously (I) Ante, p. 151. (?«) ,5 B. & AJ. 817. INDORSEMENT IN SECURITY. 181 advanced money on other goods of Lepage & Co. deposited with them. On the arrival of the oil, Lepage & Co. having previously become bankrupt, and Westzinthus not having been paid for it, his agents claimed it from the master of the ship ; but the latter delivered it to Hardman & Co., -who afterwards sold the goods of Lepage & Co., as well as the oil of Westzinthus. The net proceeds of the goods belonging to Lepage & Co. were sufficient to satisfy the debt due from them to Hardman & Co., who paid themselves and deposited the net proceeds of the oil with a third person, to abide the event of the award of an arbitrator, to whom all disputes , between Westzinthus and Lepage & Co. were referred. The arbitrator having stated these facts on his award for the opinion of the Court of King's Bench, it was held that West- zinthus, the unpaid vendor of the oil, had, at the time when his agents claimed it, no right to take possession on the insolvency of Lepage & Co., because the property in, and the right to the possession of, the oil was then vested in Hard- man & Co., the indorsees of the bill of lading for value ; and further, that Westzinthus had not, by reason of such claim, any legal right to the possession of the goods after Hardman & Co.'s lien was satisfied ; but that, in a court of equity, such transfer to Hardman & Co. would be treated as a pledge or mortgage only ; and therefore, Westzinthus, by his attempted stoppage in transitu, acquired a right to the goods in equity, subject to Hardman & Co.'s lien against the assignees of Lepage & Co. It was held, secondly, that Westzinthus, by means of his goods, had become surety to Hardman & Co. for Lepage. & Co.'s debt, and he had, therefore, a clear equity to oblige Hardman & Co. to pay his debt out of Lepage & Co.'s own goods deposited in ease of such surety ; and all the goods both of Lepage & Co. and Westzinthus having been sold, the latter might insist on the proceeds of Lepage & Co.'s goods being appropriated to the payment of their debt, and that, being sufiicient to satisfy it, iVestzinthus was entitled 182 STOPPAGE IN THANSirU. to have all the proceeds of the oil paid over to him. Lord Denman, in delivering the judgment of the Court, said, — " In this case, Westzinthus, who was the unpaid vendor at the time when his agents made the demand on the master of the vessel in which the oil was, had no right to take possession on the insolvency of the vendees, Lepage & Co., because the property in, and also the right to the possession of, the goods, was unquestionably vested at that time in Hardman & Co., the indorsees of the bill of lading for a valuable consideration. The demand, therefore, of Westzinthus, gave him no legal right to the property or possession of the goods ; and it appears to us that he can have no claim at law, except as arising out of the right of retaking the possession of the goods themselves, which right was determined by the indorse- ment of the bill of lading. As Westzinthus would have had a clear right at law to resume the possession of the goods on the insolvency of the vendee, had it not been for the transfer of the property and right of possession by the indorsement of the bill of lading for a valuable consideration to Hardman & Co., it appears to us that, in a court of equity, such transfer would be treated as a pledge or mortgage only, and West- zinthus would be considered as having resumed his foriiier interest in the goods, subject to that pledge or mortgage, in analogy to the common case of a mortgage of real estate, which is considered as a mere security, and the mortgagor as the owner of the land. We therefore think that Westzinthus, by his attempted stoppage in transitu, acquired a right to the goods in equity, subject to Hardma'ii & Co.'s lien thereon, as against Lepage & Co.' and their assignees, who are bound by the same equities as Lepage & Co. themselves were ; and this view of the case agrees with the opinion of Mr. Justice Buller, in his comment on the case of 8nee v. Prescott, in LicJcbarroio v. Mason (n). If, then, Westzinthus had an (n) 6 £ast, 29, n. INDORSEMENT FOR A LIMITED PURPOSE. 183 equitable right to the oil, subject to Hardman & Co.'s lien thereon for his debt, he would by means of his goods have become a surety to Hardman & Co. for Lepage & Co.'s debt, and would then have a clear equity to oblige Hardman & Co. to have recourse against Lepage & Co.'s own goods, deposited with them to pay their debt in ease of the surety ; and all the goods, both of Lepage & Co. and Westzinthus having been sold, the latter would have a right to insist upon the proceeds of Lepage & Co.'s goods being appropriated in the iirst instance to the payment of the debt" In equity a transfer of goods for a valuable consideration by a consignee for a limited purpose does not destro}' the con- signor's right of stoppage in transitu, ultra the particular lien of the transferee. A. consigned goods of the value of 1,800Z. to B., who transferred the bill of lading to C. as B.'s factor. C. claimed, as against A.'s title to stop in transitu, a right to retain the whole in satisfaction of a general balance of 1,000Z. due to him from B. In Spalding v. Ruding (p), it was held, first, that he was not entitled beyond the 1,OOOJ. ; and secondly, that A.'s remedy against C. for the surplus was in equity. Lord Langdale observed, — "As against the pur-i chaser, I think the seller had a right to stop the goods in ! transitu, and although the legal right to the goods was I ti-ansferred by the bill of lading, yet I think that in equity the transfer took effect only to the extent of the considera- I tion paid by the transferee, leaving in the seller an equitable \ interest in the surplus value." Section II. — Of Dock-Warrants. On the landing of goods, a wan-ant is issued by the Dock Company with marks corresponding with the different lots. in) 6 Bca. 376 ; 7.Jur. 733 ; 12 L, J. Ch. 503 ; affirmed by tlie Lord Chan- cellor on Appeal, 15 L. J. Cli. 374. 184 STOPPAGE IN TEANSITU. This warrant, which is termed the dock-warrant, is, granted to the original importer, and is afterwards passed at the dock house, that is, it is there examined and entered, of which passing is the result. The fact of examination and entry having taken place is certified on the warrant. Before the warrant is passed the holder of it cannot obtain a transfer of the goods ; and after it has passed, if the holder does not wish the goods to be transferred into his own name, he lodges the dock-warrant, and takes a cheque- warrant in lieu of it ; and the cheque, not the dock-warrant, is the docu- ment on which the delivery takes place. It has been the constant practice for the person in whose name the goods are entered in the books of the Company to put a stop upon them before the warrant has been passed ; and the practice is the same, even after the cheque-warrant is issued, since the goods still remain in the name of the original importer, the cheque-warrant not of itself operating as a transfer of the goods into the name of the person to whom it is granted. To have that effect the holder of the cheque-warrant must get the goods re-housed, or re-delivered, or an actual transfer in the books of the Company must be made. When a transfer is desired, a warrant nearly similar to a cheque- warrant, but headed " Transfer-warrant," is issued ; and this is a certificate that the goods are transferred into the name of the person to whom it is granted. The person obtaining the transfer-warrant, or a delivery of the goods, must pay to the Company all charges incurred subsequently to the first importation (a). (a) Gow. 58. A dock certificate, or a transfer, is iu this form : — ,,™, . .. -» .. ) No. of Order, 500. SJHartant Of ffiranrfer. j sh^< Rotat^^, No. 3d. "Wert India Dock Warehou.sb, No. 6. I CERTIFY that the following 3 Casks. Lot 6, of Coffee, imported by the Ship "Aurora," Captain T. Smith, ft-om Jamaica, entered by /. £. & Co., ou the lOth May, 1865, have been transferred iu the books of the warehouse DOCK-WAEEANT. 185 Thus, the ownership of goods lodged in a bonded ware- house is represented by the dock-warrant issued by the Dock Compariy, and such warrant, when indorsed and delivered bond fide and for value, transfers the right of property in the goods. In Spear v. Travers (h), at I^isi Frius, before Gibbs, C.J., it appeared that sugar lodged with the West India Dock Company was purchased from the importers by the defendant, and he received the dock- warrant from the Company. After passing through several hands it was transferred to the plaintiff as a security for 2,000Z. by Greaves, who failed without having paid the price of the sugar to Meaby, from whom it was purchased. To aid Meaby, the defendant, who was the original holder of the goods, and in whose name they still stood in the books of the Company, gave notice to stop deliveiy ; and by a false state- ment to the Company that the original dock -warrant was lost, he obtained a duplicate, by which he took possession of the sugar. The plaintiff brought trover, and the Chief Justice said, — " I think the defendant had no right to stop these goods. He had been paid for them. This is an improper attempt on his part to assist Meaby. He has not got possession of the goods in the exercise of any right to stop in transitu, but by a falsehood. I am of opinion that the plaintiff, to whom the certificate was transferred for a valuable consideration, is entitled to recover." The special into the name of John ThoTnson. Bent commeuoes, ^Qth June, 1865> inclusive. [Date and Subscription.] No. 20. Folio 520. Entered, /. W. Sansum, Clerk. [Then a schedule of the marks and weight of each cask.] A hlank delivery order is subjoiued, printed thus : — London, , 1865, Deliver the above-mentioned Goods to or order. No. . Examined and Entered, the , 1865. (b) i Camp. 251. 186 STOPPAGE IN TEANSITU. jury gave a verdict accordingly ; they observed that in prac- tice the indorsed dock-warrants and certificates are handed from seller to buyer as a complete transfer of the goods. Dock-warrants are, by the custoin of trade, negotiable like bills of lading, and their indorsement and delivery to a pur- chaser determines the right of stoppage in transitu. In Zwinger v. Samuda (c), the defendant, who was pawnee of goods lodged in the West India Docks, and entered there in the pawnee's name, gave up to the pawnor, certain dock- warrants, having indorsed them with an order for the delivery of the goods to blank in exchange for a cheque on the pawnor's banker, which was dishonoured The pawnor having sold the goods to the plaintiffs and received payment, gave to them the dock-warrants with the defendant's name signed to the blank delivery order. The defendant stopped delivery at the docks on non-payment of the cheque, and before the dock- warrants had been presented to the Dock Company. The plaintiffs brought trover, and obtained a verdict.- Dallas, J. said, — " The person who enabled the pawnor to commit this fraud was the defendant, by lodging the delivery notes in his hand, and enabling him to go to market with them. The act of the pawnor, therefore, was the act of the defendant. It is said that it would be inconvenient if property may be transfeiTed by these delivery notes. The best test of their convenience is the use of them, which has obtained ever since these docks were erected. Two witnesses, very conversant with this trade, stated that there was a general practice pre- valent, to receive these warrants in the market, and to pay for the goods therein specified without going to the dock- house to examine whether any stop was put on them. Without saying that this is such a usage as to constitute a rule of law, there is, in the particular case, enough to show that there is no foundation for the observation that the practice will be fr) 7 Tiiiin. 265. INDORSEMENT AND DELIVERY OF DOCK-WARRANT. 187 productive of inconvenience. It is enough, therefore, to say that the persons who hold these bought notes have given a valuable consideration for them, and that, therefore, they are entitled to the property." Park, J. was of the same opinion ; he said, — " It is the defendant who is to blame for sending out the pawnor into the world with these symbols in his hands ; and the plaintiffs, by purchasing them, obtained a right to the delivery of the goods. As to the custom, it is asked by the defendant's counsel, ' How can a custom grow up in so short a time as hath elapsed since the making of these docks V But in the Newfoundland case (d), it was held that one year was enough for a practice of trade to grow up." At the trial at JVisi Priiis, Park, J. had assimilated dock- warrants to bills of exchange and bills of lading, both of which transfer property by indorsement ; but Burrough, J. said, — " I hope it will be understood that the Court does not proceed upon anything like a custom in this case ; the only use to be made of the evidence of the practice of trade is that it shows that no inconvenience results from the use of these warrants " (e). Indorsement and delivery are sufficient, without notice to the Dock Company, to transfer the property in goods repre- sented by a dock-waiTant. In Lucas v. Dorien (/), the owner of sugar pledged the dock-warrants with the defen- dants, who lodged them with the West India Dock Company, duly indorsed to them ; and the Company assented to the transfer. The pledger became bankrupt, and the Dock Company refused further delivery without the consent of the assignees. In an action of trover brought by the assignees, the verdict went for the defendants. On a motion by the plaintiffs that a nonsuit be entered, Dallas, J. observed, — " The clerk of the Dock Company, on the dock-warrant being (d) Noble V. Kennowaij, 2 Doug. 510. (e) See Barton v. BoddiiKjton, 1 C. & P. 207. . (/) , 7 Taun. 278. 188 STOPPAGE IN TRANSITU. exhibited to him, said, ' this will suffice.' Therefore, I must take it, that the Dock Company, through their agent, had notice of the transfer ; and though nothing was done in consequence of that notice, yet it falls within the case of Harman v. Anderson (g), where Lord Ellenborough held, that the mere giving notice to the wharfinger, without any- thing done thereon, was effective to complete the transfer of property." Burrough, J. said, — " The moment that notice was given to the Dock Company, they were converted into trustees for the defendants, if it be necessary so to contend." But, though the case was decided on this ground, yet the Court intimated an opinion that dock-warrants were negoti- able by the custom of trade, and that indorsation alone, without actual notice to the Dock Company, was sufficient to transfer the property. Dallas, J. said, — "There are two parts in the case of Harman v. Anderson, and though Lord Ellenborough, C. J. did say at the trial that the transfer in the books passed the property, ■ yet he afterwards says that the delivery note was sufficient without any actual transfer being made in their books. Spear v. Travers Qi) is valuable for two purposes : first, it shows what Gibbs, C. J. held, respect- ing the operation of these dock-warrants ; secondly, it shows that a special jury have expressed an opinion upon the subject. The sugars must be deposited with the Dock Company for securing the duties. The warrant itself contains a form of indorsement. What can be stronger to show the intention of parties, that the property should pass by indorsement, than the form of indorsement put on it in the original making of the instrument?" — "I have been several times stopped by a special jury, they being satisfied that the goods pass from hand to hand by indorsement of these instruments.. :A^11 special juries cry out with one voice that the practice is,' that the produce lodged in the docks is transferred by indorsing {g) 2 Camp. 244. (h) Ante, p. 185. INDORSEMENT AND DELIVERY OF DOCK -WARRANT. 189 X)ver the certificates and dock --warrants ; and therefore there is no reputed owner if he does not produce his certificate." Park, J. said, — " I give great weight to the inconvenience on which the defendants' counsel relies, that it would be dreadful, if a merchant had to go down to the dock ten or twenty times in a day to see to transfers of these goods. No man living would have purchased these goods, unless the dock -warrants had been produced ; they are the key of this property." And Burrough, J. said, — " This instrument is perfectly well known to all traders, and it is also known to them that the goods pass by indorsement of it, and there is no reason why they should not ; it is a transfer of a mere chattel, and there is no reason why an order for the delivery of the goods should not pass the property. I should have thought, independently of the notice to the Dock Company, that the property was transfen-ed by the mere indorsement for a valuable consideration." — " I know not whether these instruments were in use at the time when the case of Gordon v. East India Company (i) was decided ; but Lord Kenyon, C J. relied there on a document which could have been carried to market for the purpose of disposing of the pro- perty. Here is that document. What Lord Mansfield, C. J. said in ThacJcthwaite v. Cock (If) is material to the present case. He said that there was not such a clear, distinct, and precise custom proved as would enable others to see that goods might not be the property of the possessor. Here subsists, I will not call it a custom, but so clear an under- standing of the trade, that this instrument by indorsement would pass the property, that every one may see that they are no longer the property of the bankrupt, who has ceased to possess this document " [1). (i) 7T.E. 228. (yfc) 3 Taun. 491. (I) Stonard v. Dunhin, 2 Camp. 344; Tucker v. Huston, 2 C & P. 86. 1.90 ' STOPPAGE IN TRANSITU. In Keyzer v. Suse (m), a cargo of coffee was imported by Simpson & Co. and entered by them in the West India Dock Warehouses. Simpson & Co. assigned to Edward & James Man, the bill of lading, and likewise delivered to them two dock-warrants in blank. Suse, the defendant, afterwards purchased the coffee and received the dock- warrants, one in blank and the other directing delivery to his order. He signed the one in blank v/ith his own name, but allowed the blank for the name of the purchaser to remain ; and having employed Brokers to dispose of the coffee, the warrants were delivered to them. The brokers, after having effected a sale on credit, delivered the dock-warrants to the purchaser, and he failed, after having deposited one of the warrants with the plaintiff for money advanced on the security of the warrant. The plaintiff brought trover ; and the question was, whether the mere delivery of the dock-warrant to the plaintiff was, under the circumstance, a constructive delivery of the goods mentioned in it, so as to deprive the defendant of his right of stopping in transitu. Dallas, C. J. directed a verdicj; for the plaintiff ; he said, — " The importance of this case and the clog endeavoured to be cast upon the commerce of the country, renders it necessaiy for me to say a few words ; because it would be productive of great inconvenience if a practice, beneficial to commerce, which has prevailed for fifteen years, should be in any degi-ee invaded by a doubt being introduced on the question, whether or not the pro-, perty in goods passes by a dock-warrant. The warrant in this case was deposited by the purchaser with the plaintiff, as a security for a loan. The transfer, therefore, was for a valuable consideration. But it is said that practice and usage alone warrant the transfer of property by an instru- ment of this description, and that the usage is of too modem a date on which to found a legal transfer. Mercantile law, (m) Gow. 58. DELIVERY ORDER NOT NEGOTIABLE. 191 however, stands chiefly on the foundation of usage ; and here the usage has prevailed as long as it was capable of prevail- ing. As to the observation that the practice is of too short a duration, I know not how or where to ascertain when a usage becomes of age. An established usage constitutes the common understanding between parties in their deaUngs ; and on the footing of that common understanding, they are supposed to contract. This question has been frequently decided in the affirmative by special juiies. But if abstract rules of law can prevail in a particular case, effect must be given to them, although they would be productive of general inconvenience." A deliveiy order is not negotiable like a dock-waiTant. In Dixon V. Bovill (n), an iron master gave to his vendee a note in these words : — " I will deliver 1,000 tons of iron when required, after the 18th of September next to the party lodging this document with me ;" and it was held, that this document was not a negotiable instrament of mercantile ex- change. It is doubtful whether receipts or documents similar to a bill of lading given for goods by masters of boats in the inland trade can, by indorsement and delivery to a purchaser, have the effect of transferring the property in the goods (o). In Alcerrnan v. Humphery (p), the consignee of goods delivered over to a third person the shipping note of such goods, and a delivery order on the wharfinger, and it was held that the property was not transferred so as to prevent a stoppage in transitu by the consignor (q). (n) 3 Macq. H. I,. Cas. 1 ; 2 Jur. N. S. 933. (o) Bryatis v. Nix, i M. & W. 775 ; Jenkyros v. Ushornc, 1 SI. & G. 678 ; 8 Scott, N. R. 505. (p) 1 C. & P. 53,. (y) See Tucker v. Humphreij, i Bing. 523 ; McEivati v. Sniilh, 2 H. L. Cas. 309. 192 STOPPAGE IN TRANSITU. Section III. — Of the Factors' Acts. Formerly, if the consignee of goods were a factor only, his position was different from that of a vendee ; and he could not •by indorsement and delivery of the bill of lading as a pledge, defeat the right of stoppage in transitu on the part of the consignor ; unless that were done in carrying out a sale on his behalf. This was first decided in the case of Paterson v. Tash (r), in which Lee, C. J. is reported to have said that " though a factor has power to sell, and thereby bind his prin- cipal, yet he cannot bind or affect the property of the goods by pledging them as a security for his own debt, though there is the formality of a bill of parcels and a receipt." It is stated in Abbott on Shipping (s), that there is reason to suppose that this anomaly was the result of some mistake in the report of that case, to which the judges, through a long series of decisions felt themselves bound to adhere (t), but not without much variety of opinion respecting the policy of the law (u). But, by stat. 4 Geo. 4, c. 83, amended by 6 Geo. 4, c. 94, usually called the Factors' Act, the law on this subject was changed in deference to the almost unanimous opinion of mercantile men. By the latter statute, it was enacted : — 1. That the person in whose name goods are shipped is to be deemed the tme owner thereof, so far as to entitle the consignee to a lien thereon in respect of any money or negotiable security advanced by him to such person, or (r) 2 Str. 1178. (s) P. 442. {t} Nawsmn v. Thornton, 6 East, 17; Martini v. CoUs, 1 M. & S. 140 ; Shipley v. Kymer, 1 M. & S. 483 ; Solly v. Rathbune, 2 M. & S. 298 ; Cochran V. Irlam, 2 M. & S. 301 ; Daubigny v. Buval, 5 T. R. 607 ; Oraham v. Oyster, 6 M. & S. 1 ; McCombie v. Davies, 7 East, -6 ; Pickering v. Buck, 15 East, 44. (m) See the judgments in Quieros v. Trueman, 3 B. & C. 342 ; and in Wil- liams v. Barton, 3 Bing. 139. THE factors' act. 193 received by such person to his use, if he has not notice by the bill of lading or otherwise, at or before the advance or receipt that such person is not the actual and bond fide owner of the goods; and such person shall be taken for the purposes of the Act to have been entrusted with the goods for the purpose of consignment or of sale, unless the contrary be made to appear. 2. That a person entrusted with and in possession of a bill of lading, or of any of the warrants, certificates, or orders, mentioned in the Act, is to be deemed the true owner of the goods described therein, so far as to give validity to any contract or agreement made by him for the sale or disposition of the goods, or the deposit or pledge thereof, if the buyer, disposee, or pawnee, has not notice by the document or otherwise, that such person is not the actual and bond fide owner of the goods. 3. That if such person deposit or pledge the goods as security for a pre-existing debt or demand, he -^ho so takes the deposit or pledge without notice shall acquire such right, title, or interest, and no further or other than was possessed by the person making the deposit or pledge. 4. That any person may contract for the purchase of goods with any agent entrusted with the goods, or to whom they may be consigned, and receive and pay for the same to the agent, notwithstanding he shall have notice that the party with whom he contracts is an agent, if such contract and payment be made in the ordinary and usual course of busi- ness, and he has not at the time of the contract or payment notice that the agent is not authorised to sell or to receive the price (x). 5. That any person may accept any goods, or any such document as aforesaid, on deposit or pledge from any factor or agent, notwithstanding he shall have notice that the party (x) A carrier, warehouseman, packer, or wharfinger, is not an agent within this section : Mmik v. WMtembui-y, 2 B. & Ad. 484. 194 STOPPAGJE m TRANSITU. is a factor or agent ; but in such case he shall acquire such right, title, or interest, and no further or other than was possessed by the factor or agent at the time of the deposit or pledge. 6. That the Act shall not prevent the true owner of the goojds from recovering them from his factor or agent, before a sale, deposit, or pledge, or from the assignees of such factor or agent, in the event of tiis bankruptcy : nor from the buyer the price of the goods, subject to any right of set-off on the part of the buyer against the factor or agent (y) : nor from recover- ing the goods deposited or pledged upon repayment of the money, or restoration of the negotiable instrument advanced on the security thereof to the factor or agent ; and upon pay- ment of such further money or restoration of such other negotiable instrument, if any, as may have been advanced by the factor or agent to the owner, or on payment of money equal to the amount of such instrument : nor from recovering from any person any balance remaining in his hands as the produce of the sale of the goods, after deducting the money or negotiable instrument advanced on the security thereof. And that in case of the 'bankruptcy of the factor or agent, the owner of the goods so pledged and redeemed shall be held to have dis- charged pro ta/nto, his debt to the estate of the bankrupt {z). (ij) Barmgv. Corrie, 2 B. & Aid. 137. (21) By the 7 & 8 Geo. 4, c. 29, s. 51, it is enacted, that if any factor or agent entrusted, for the purpose of sale, with any goods or merchandise, or entrusted with any bill of lading, warehouse-keeper's or wharfinger's certifi- cate, or warrant or order for the delivery of goods or merchandise, shall, for his own benefit, and in violation of good faith, deposit or pledge any such goods or merchandise, or any of the said documents as a security for any money or negotiable instrument, borrowed or received by such factor or agent, at or before the time of making such deposit or pledge, or intended to be hereafter borrowed or received, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable, at the discretion of the Court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to suflfer such other punishment by fine or imprisonment, or both, as the Court shall award ; but no such factor or agent shall be liable to any prosecution for depositing or pledging any suoh.goods or merchandise, or any of the said documents, in case the same PLEDGEE MUST USE REASONABLE PRECATTTION. 195 This statute has received a judicial construction iu several cases, some of which have been much discussed. It has been held, that a pledgee of warrants from a factor was not entitled to retain them against the. principal, if he had not used reasonable precaution in ascertaining whether the pledger was the actual owner of the goods. In Evans v. Trueman (a), a party who received East India warrants from a factor in pledge for moneys advanced to him, was held not entitled to retain them under 6 Geo. 4, c. 94, against the true owner, as from the circumstances he must, as a reason- able man, have known them not to belong to the factor ; and although no direct communication of the fact was made to the lender of the money. It was an action of trover for forty chests of indigo, which the plaintiffs purchased of Nevitt & Co. While the warrants continued in the possession of Nevitt & Co., J. Nevitt, partner in that house, pledged them with the defendants, who afterwards obtained the indigo under them. The only question discussed at the trial was, whether the defendants, assuming that they had given the necessary consideration for the warrants, were entitled to the protection of the statute ? Nevitt & Co. were brokers at Liverpool and J. Nevitt resided principally in London, and dealt largely in indigo, both as a broker and on his own account. There was some evidence tending each way, on the question whether the defendants had reason to believe that Nevitt held the warrants only as a broker ? Lord Tenterden, C. J. said, — " The expression of the statute is, that a party is ■ to be entitled to its protection, ' if he has not notice, by the documents or otherwise,' that the pledger was not the actual and bond fide owner of the goods pledged; A shall not be made a security for, or subject to, the payment of any greater sum of money than the amount which, at the time of such deposit or pledge, was justly due and owing to such factor or agent from his principal, together with the amount of any bill or bUls of exchange drawn by or on account of such principal, and accepted by such factor or agent. (OS) 1 Moo. & R. 10. o 2 196 STOPPAGE IN TRANSITU. person may have knowledge of a fact either by direct cotn- munication, or hy being aware of circumstances which must lead a reasonable man, applying his' mind to them, and judging from them, to the conclusion' that the fact is so. Knowledge acquired in either of these ways is enough, I think, to exclude a party from the benefit of the provisions of this statute ; slight suspicion, I think, will not. The question I shall leave to the jury in this case, where there is no evidence of direct communication, is, whether the circumstances were such, that a reasonable man and a man of business, applying his understanding to them, would know that the goods were not Nevitt's ? " Where a factor, who was consignee of goods for sale and indorsee of the bills of lading," had landed and warehoused the goods and taken the wharfingers' certificates and dock- warrants in his own name, and then pledged the certificates and warrants for an advance of money on his own account ; it was held, in the case of Close v. Holmes (h), that such pledge was not protected by the second section of the statute 6 Geo. 4, c. 94. In this case, which was an action of trover by the real owner of th-e goods, it appeared that the plaintiffs were merchants at Manchester, having estBiblishments abroad at Naples and other places ; and they were in the habit of making consignments to Hollingworth, a ship and insurance broker at Hull, as their agent for sale. In January, 1835, the ship " Francis " arrived at Hull, with some brimstone and cream of tartar on board, consigned by the plaintiffs to Hollingworth, for sale on their account ; the bills of lading being also transmitted to him indorsed by the shippers in blank. Hollingworth had the goods landed, and placed them in a bonded warehouse of one Hopwood, in his own name. In the following month, another ship, " The Dean," also arrived at Hull, with some argol and more cream of (i) 2 Moo. & E. 22. WHAT PLEDGES ARE NOT PROTECTED. 19*7 tartar on board tselonging to the plaintiffs, and consigned in like manner to Hollingworth ; the bills of lading being like- wise indorsed and transmitted to him as in the former instance. The goods ex " The Dean " were landed and placed by Hollingworth in his own name in the bonded warehouse of the Hull Dock Company. In June, 1835, Hollingworth applied to the defendant's banking company for an advance of 500?., for which he offered to lodge some goods which he said he had on consignment, and that he had made advances on them. The banking company acceded to his application, and on the 17th of June he obtained from the Hull Dock Company and lodged with- the banking company, an acknow- ledgment in wi-iting that the Dock Company held the argol and the cream of tartar ex " The Dean " to the order of the baiiking company, and thereupon the banking company paid his acceptance for 500?. In the month of July, the banking company paid another acceptance of Hollingworth for 2501., for which he pledged with them a delivery order, accepted by Hopwood, for the brimstone and cream of tartar ex " Francis " ; but on neither occasion did HoUingworth pledge or produce the bills of lading. Alderson, B. left it to the jury to say whether the banking company, at the time they made the advances, were aware of the fact that the goods did not belong to Hollingworth ; and whether, Hollingworth him" self had any lien on the argol, which he could transfer to the defendant under the fifth section of the statute. With regard to the other point, his loi'dship expressed a clear opinion that the statute gave validity only to pledges by a factor of docu- ments with which the real owner had previously entrusted him, and that it did not extend to the pledge of documents created, as in the present instance, by the factor himself He thought it right that the question of fact should be left to the jury, but in the event of their finding that the bank- ing conrpany made the advances in ignorance that the goods were not the property of Hollingworth, he should still direct 198 STOPPAGE IN TRANSITU. the verdict to be entered for the plaintiffs. Parke, B., in delivering the judgment of the Court, said, — " The principal question is, as to the meaning of the second section of the 6 Geo. 4, c. 94, commonly called the Factors' Act. Before the passing of this Act, or rather the previous Factors' Act, the 4 Geo. 4, c. 83, it was clearly settled, that a factor or agent for sale had no power to pledge, whether he was in possession either of the goods themselves or of the symbol of the goods, and even though the symbol might bear on the face of it some evidence of the property being in himself, as in the case of a bill of lading, in which he was the consignee or indorsee. This was in accordance with the general rule, that he who deals with one acting ex Tnandato, can obtain from him no better title than his mandate enables him to bestow. But this rule was thought by some to be attended with hardship on merchants and others dealing with factors on the faith of their being piincipals ; and the legislature, by the 4 Geo. 4, first relaxed this rule, and by the 6 Geo. 4, extended that relaxation. It is very clear that the second section of the latter statute relaxes the rule of the common law only with respect to those who deal with persons who are not merely in possession of, but are also entrusted with, the symbol of the property. How- ever great the hardship may be on innocent persons, and whatever they may have supposed, from finding another in possession of a document bearing the indicia of property in himself, stiU the statute does not apply, and they can acquire no title by virtue of it, unless the document has been entrusted to that person. It is not enough to show that the plaintiffs empowered the factors to possess themselves of the warrants whenever they chose ; it must be shown that the plaintiffs really intended that the factors should be possessed of them at the time they pledged them, or it must be shown that the plaintiffs meant not merely to have the power which the possession of the bill of lading would give, of getting the WHAT PLEDGES ARE NOT PROTECTED. 199 warrant when they liked, but to exercise that power by obtain- ing it whenever they, in their discretion, might think fit. If either of these intentions were proved, it would be sufficient." In order to make the factor a party entrusted with the dock- wan-ant, within the meaning of the Act, it must appear that the owner of the goods intended that the factor should be possessed of it at the time of the pledge, or that he should exercise the power, which the possession of the bill of lading gave him, of obtaining the dock- warrant whenever he in his discretion might think fit. In Phillips v. Huih (c), the plaintiffs, who were owners of a cargo of tobacco, on the arrival of the vessel, placed the bill of lading, indorsed in blank, in the hands of their factor for sale. The factor entered the goods at the Custom-house, and without the plaintiifs' knowledge, obtained dock-warrants in his own name, which he afterwards pledged with the defendant as a security for money advanced to him. The goods having been sold by the defendant, an action for money had and re- ceived was brought by the plaintiffs to try whether the pledge was valid. At the trial before Gurney, B., it appeared from the evidence, that sales of tobacco were effected, some- times by delivery orders, sometimes by a transfer of the waiTants, which latter mode could not conveniently be adopted where less than the whole cargo was sold. No precise usage of trade in that respect was however esta- blished. The jury found a verdict for the defendant ; but the Court of Exchequer granted a new trial, on the ground that the pledge was not binding on the owner of the goods at common law ; that the factor was not entrusted with the dock-warrants within the meaning of the Act; and that therefore the pledge was not protected by the second section of the statute. In Hatjield v. Phillips (d), the facts were in substance the (c) 6M..&W. 572. (d) 9 M. & "W. 647 ; 14 M. & W. 605 ; 12 CI. & F. 343. 200 STOPPAGE IN TBANSITIT. same as in the case of Phillips v. Huth, mentioned above. At the trial,. Lord Abinger, C. B., in summing up, stated that in order to entitle the pledgees to a verdict, it was necessaiy that they shoiild prove that the factors, from whom they received the dock-warrants, were not only possessed of, but also entrusted with them by the real owners, and that whether they were so entrusted was a question of fact for the jury to determine upon the evidence. To this dii-ection a bill of exceptions was tendered by the pledgees; and the jury having found a verdict for the original owners of the goods, the case was taken by writ of error into the Exchequer Chamber, and that Court expressed' their concurrence in the decision of the Exchequer in Phillips v. Huth, and affirmed the judgment (e). In Taylor v. Trueman (/), it was held that East India Co.'s warrants are not negotiable instruments within the second section of the 6 Geo. 4, c. 94, as they pass by delivery and not by indorsement. In that case it was decided that the defendants, who had received a pledge from a factor for an antecedent debt and sold it, were not entitled under the third section of the 6 Geo. 4, c. 94, to hold the proceeds as against the real owner, but were liable to him in trover. In estimating the damages, however, the pledgees were held entitled to credit for the balance due from the owner to the factor. Where a broker, having accepted bills for his principal on the security of goods then in his hands, pledged the goods with a person who had notice of the agency, but did not inform the priucipal of this transaction ; it was held, in Fletcher v. Heath (g), that under the fifth section of the 6 Geo. 4, c. 94, the broker could only transfer such right as he had, which was a right to be indemnified against the bills (e) See Bonzi v. Stewart, 5 Scott, N. R. 1 ; 4 M. & G. 525. (/) 1 M. & M. 453. See also Taylory. Keymer, 3.B. & Ad. 320. (g) 7 B. & C. 517 ; and see Blandy v. Alien, 3 C. & P. 447 ; Dan. & L. 22. AMENDMENT Of THE FACTORS* ACT. 201 which he had accepted ; and that the principal having satisfied those bills, was entitled to have back his goods from the pawnee, without payiiig the amount for which they were pledged. And in Thompson v. Farmer (h), where a fraudu- lent sale was made by a factor who had a lien on the goods of his principal, it was held that the purchaser was not entitled to the protection of the fifth section of the 6 Geo. i, c. 94, as the transfer to him was not expressly made as a pledge. In Jackson v. Clarke (i), the plaintiffs consigned goods to their factor, and at the same time drew^ bills upon him for the amount, which they themselves ulti- mately paid, and the factor sent the goods to the defendant, with whom he had general dealings, without intimating that they were the property of a third person, and drew a bill on him for the amount, which the defendant accepted and paid. The factor became insolvent, having previously apprised the defendant that he had received a notice of countermand of it the sale from the plaintiffs, but the defendant afterwards sold the goods ; it was held, that the defendant was liable for the value of the goods in an action for money had and received, and that he would have been equally liable had he not known that the goods were the property of the plaintiffs. Since the above cases were decided, the law on this subject has undergone further alteration, to meet the wishes and convenience of merchants. By the 5 & 6 Vict. c. 39, entitled " An Act to amend the law relating to advances bond fide made to agents entrusted with goods," after reciting the 6 Geo. 4, c. 94, and that under it advances could not safely be made on goods or documents to persons known to have possession as agents only ; that it was necessary that the same protection should be given to advances on goods as to sales ; that owners who would be bound by a contract of sale should be bound by a (h) 1 M, & M. 48. (i) 1 Y. & J. 216. 202 STOPPAGE IN TRANSITU. contract of lien ; and that the Act did not protect exchanges of securities, it was enacted, — 1. That from and after the passing of this Act, any agent who shall thereafter be entrusted with the possession of goods, or of the documents of title to goods, shall be deemed and taken to be the owner of such goods and documents, so far as to give validity to any contract or agreement by way of pledge, lien, or security, bond fide made by any person with such agent so entrusted as aforesaid, as well for any original loan, advance, or payment made upon the security of such goods or documents, as also for any further or continuing advance in respect thereof, and such contract or agreement shall be binding upon and good against the owner of such goods, and all other persons interested therein, notwith- standing the person claiming such pledge or lien may have had notice that the person with whom such contract or agreement is made is only an agent. 2. The substitution of other goods, documents of title, or negotiable securities is authorised for those first deposited in consideration of a previous advance ; but it is provided that the lien acquired upon the property substituted ■ shall not exceed the value at the time of the goods being given up. 3. The Act shall be deemed and construed to give validity to such contracts and agreements only, and to protect only such loans, advances, and exchanges, as shall be made bond fide, and without notice that the agent making such contracts or agreements has not authority to make the same, or is acting maid fide against the owner of such goods or mer- chandise ; the Act shall not be construed to extend to or protect any lien or pledge for an antecendent debt, nor to authorise any agent in deviating from any express orders or authority received from the owner ; but that, for the purpose, and to the intent of protecting all such bond fide loans, advances, and exchanges, though mad« with notice of such agent not being the owner, but without any notice of the JUDICIAL CONSTRUCTION. 203 agent's acting withcxit authority, and to no further or other intent and purpose, such contract or agreement shall be binding on the owner, and on all persons interested in such goods (k). 4. Any bill of lading, India warrant, dock-warrant, ware- house-keeper's certificate, warrant, or order for the delivery of goods, or any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by indorsement or delivery, the possession of such document to transfer or receive goods thereby represented, shall be deemed and taken to be a document of title within the meaning of the Act ; and any agent entrusted and possessed of any such document of title, whether derived immediately from the owner of such goods, or obtained by reason of such agent's having been entrusted with the possession of the goods, or of any other document of title thereto, shall be deemed and taken to have been intrusted with the possession of the goods represented by such document of title (T). And all contracts {k) This section has received judicial construction in the case of Navulshaw V. Brownrigg, 21 L. J. Chanc. 57 ; and on Appeal, 908, ib. The plaintiff consigned goods to a Liverpool merchant for sale, and drew bills upon him to an amount greater than the value of the goods, which bills he accepted. The Liverpool merchant then handed the goods to his London agent to be sold, and drew bills upon him, as an advance upon account of the goods. The London agent accepted the bills, having notice that the goods had been con- signed by the plaintiff for sale. The Liverpool merchant became insolvent, and the bills drawn upon him l)y the plaintiff were not paid. The London agent sold the goods to enable him to meet the 'bills drawn upon him by the Liverpool merchant. The consignor filed a biU in equity, alleging fraud and collusion, and praying that the London agent might be decreed to pay him the amount produced by the sale of the goods. But Lord Cranworth, 0. held, affirming the decree of the Court below, that the pledge was valid within the 5 & 6 Vict. c. 39, as made land fide, and in the ordinary course of business ; and that notice to the pledgee of the fact that the goods were transmitted to the consignee with directions simply to sell, did not vitiate the pledge ; but it would have been otherwise, if the pledgee had received notice that the con- signee was prohibited from pledging. {I) See Phillips v. Huth, 6 M. & W. 605 ; HatfisUy. Phillips, 9 M. & W. 647 ; 14 M. &W. 665 ; 12 CL & F. 343 ; ante, p. 199. 204 STOPPAGE IN TKANSITU." pledging or giving a lien upon such document of title shall be deemed and taken to be respectively pledges of and liens upon the goods to which the same relates. And such agent shall be deemed to be possessed of such goods or documents, ■whether the same shall be in his actual custody, or shall be held by any other person subject to his control, or for him or on his behalf. And where any loan or advance shall be bond fide made to any agent entrusted with and in possession of any such goods or documents of title, on the faith of any contract or agreement in writing, to consign, deposit, transfer, or deliver, such goods or documents of title, and such goods or documents of title shall actually be received by the person making such loan or advance, without notice that such agent was not authorised to make such pledge or security, every such loan or advance shall be deemed and taken to be a loan or advance on the security of such goods or documents of title within the meaning of this Act, though such goods or documents of title ^hall not actually be received by the person making such loan or advance till the period subse- quent thereto. And any contract or agreement, whether made direct with such agent, or with any clerk or other person on his behalf, shall be deemed a contract or agree- ment with such agent. And any payment made, whether by money or bills of exchange or other negotiable security, shall be. deemed and taken to be an advance within the meaning of this Act. 5. Nothing in the Act contained shall lessen, vary, alter, or affect the civil responsibility of an agent for any breach of duty or contract, or non-fulfilment of his orders or authority, in respect of any such contract, agreement, or pledge as aforesaid. 6. This section has been repealed by 24 & 25 Vict. c. 95, but, with some alteration, re-enacted by an Act consolidating and amending the statutes relating to larceny and like offences, viz., 24 & 25 Vict. c. 96, by the 78th section of which, a factor APPLIES ONtY TO MERCANTILE TRANSACTIONS. 205 or agent exercising the powers virtually conferred on him by the 5 & 6 Vict. c. 39, malA fide, and without the authority of his principal is subject to punishment by penal servitude or imprisonment, as for a misdemeanor, unless where the property dealt with is not made a security for or subject to the payment of any greater sum of money than the amount which at the time was justly due and owing to such agent from his principal, together with the amount of any bills of exchange drawn by or on account of such pi'incipal and accepted by such agent ; or by section 85 of the 24 & 25 Vict. c. 96, unless he shall, previously to his being charged with such offence, have disclosed it (m) on oath in conse- quence of compulsory process in any proceeding hond fide instituted by any party aggrieved, or in an examination or deposition before any Court of Bankruptcy or Insolvency {n). 7. The right of the owner to redeem is preserved, and he is enabled to prove under the bankruptcy of the agent for the amount paid to redeem, or the value of the goods. The Act 5 & 6 Vict. c. 39, applies to mercantile transac- tions, and not to the case of advances made upon the security of furniture used in a furnished house, not in the way of trade, to the apparent owner of such furniture, who after- wards appeared to be the agent entrusted with the custody of the furniture by the true owner. In Wood v. Rowcliffe(p), Sir James Wigram, V. C. said, — " The first Act, 6 Geo. 4, c. 94, is for the protection of the property of merchants and others, and the property referred to is ' goods, wares, and merchandise, entrusted to the agent for the purpose of consignment or sale, or shipped.' And upon a judicial construction of the Act, it has been held that the generality of the expressions must be restricted. Every servant of the owner of goods (m) iJ; T. Skeen, 1 BeU, C. C. E. 97 ; 28 L. J. M. 0. 91. (n) 1 S. L. C. 745. (o) e Hare, 191. 206 STOPPAGE IN TRANSITU. employed in the care or carriage of such goods is in one sense an agent entrusted with the goods, but still he is not an agent within the meaning of the statute (p). The title of the second Act, 5 «fe 6 Vict. c. 39, is more general ; but it appears to me to relate to agents and to goods and mer- chandise in a sense which is not applicable to the agency or the property in this case." In JenJcyns v. Ushorne (q), it was held that a vendee who had obtained an advance on a delivery order given by the vendor for the goods was not an agent entrusted with a delivery order within the meaning of the Factors' Act, so as to defeat the right of stoppage in transitu, by making a valid pledge of the delivery order. Tindal, C. J. said, — " The Factors' Act appears to us intended only to apply to persons entrusted with such documents as factors or agents. In this case the vendee was in possession of the document not as the agent of another, but in his own right " (r). (p) Monk V. Whitembury, 2 B. & Ad. 484. (q) 7 M. & G. 678 ; 8 Scott, N. R. 505 ; 13 L. J. C. P. 196. (r) See Van Casteelv. BooTcer, 18 L. J. Ex. 19 ; 2 Exch. 691. CHAPTER VI. THE CONSEQUENCES OF STOPPAGE IN TEANSITtT- Section I. — Whether Stoppage is a Resciaion of the Contract. Whether the effect of stoppage in transitu is to rescind the contract of sale, or merely to revest the lien of the vendor, has been frequently adverted to, but is considered to be still unsettled. The latter, however, seems to be the pre- valent opinion. With regard to this question, as between a vendor and the general creditors of a vendee who becomes bankrupt ; the vendor, before actual possession by the vendee, has a lien upon the goods he sends, and if he can get them in transitu, he has the benefit of that lien (a), which is a kind of equitable lien adopted by the law for the purposes of substantial justice, and it does not seem to proceed on the ground of rescinding the contract (6). Important con- sequences result from the determination of this question, both to the vendor and to the assignees of the bankrupt vendee; for if the contract be rescinded by a stoppage in, transitu, the vendor, in the event of a rise in the market price, could take advantage of the bankruptcy of the vendee, and by a re-sale receive more for his goods, which would be unjust towards the bankrupt, who might be quite willing to perform his part of the contract. Besides, mutuality of consent is necessary for the rescinding of a contract as well (a) Valev. Scale, Cowp. 296, per Lord Mansfield. (by Hodgson y. Loy, 7 T. R. 445, per Lord Kenyon, C. J. 208 STOPPAGE IN TRANSITir. as for the making of it (c). But this consent may be inferred from circumstances (d). The right was regarded as of the nature of a lien in Feise V. Wray (e), where the consignee had before his bankruptcy accepted bills drawn on him by the consignor for the amount" of the goods, which bills, having been indorsed, were provable under the commission ; it was contended that the seller could not stop in transitu without relieving the estate of those bills, on the ground that it would be unjust to withdraw from the bankrupt's estate the value of the goods, while it was left liable to answer bills for the amount in the hands of third persons. But Lawrence, J. said, — " It was decided in Hodgson v. Loy (/), that part payment for the goods does not conclude the right to stop in transitu ; it only diminishes the vendor's lien pro tanto on the goods detained. Then having lawfully possessed himself of them, the vendor has a lien on them till the whole price be paid, which cannot therefore be satisfied by showing a part payment only." Le Blanc, J. said, — " Clearly the vendor bad a right to stop the goods in transitu, unless the acceptance of his bills by the vendee made any difference. But if the full price of the goods be not paid to the vendor, it does not take away his right to stop them in transitu. Now at most, in the event which has happened, of the vendee's bankruptcy, the proof of the bills under his commission can only be considered as amounting to a part payment ; and it has been held that that will not take away the vendor's right, however it may lessen his lien to the amount of the price actually advanced." "And Lord (c) Franklin v. Miller, 4 A. & E. 606, per Coleridge, J. ; Leigh v. Paterson, 8 Taun. 540, per Dallas, J. (d) Towers v. Barrett, ] T. R. 133 ; Masters v. Marriot, 3 Lev. 363 ; Giles v. Edwards, 7 T. E. 181 ; Pringle y. Taylor, 2 Taun. 150 ; Mawmanv. GilMt, 2 Taun. 325, n. ; Withers v. Reynolds, 2 B. & Ad. 882 ; Roper v. Combes, 6 B. & C. 534 ; Rdbson v. Drummond, 2 B. & Ad. 303 ; Moyne's Case, 5 Co. 21. (e) 3 East, 91 ; ante, pt 14. (/) -7 7. p. 440; anU, p.. 29. EFFECT OF ITS EXERCISE ON THE CONTRACT. 209 Ellenborough, C. J. was of opinion that a part payment only- reduced the vendor's equitable lien 'pro tanto, when he got the goods into his possession. " This question arose in the case of Clay v. Harrison (g), which was an action on a policy of insurance. A contract was entered into between the vendors at St. Petersburgh, and the vendee at Hull, for a cargo of deals, to be paid for by bill at three months, which was duly accepted. The deals were shipped, an invoice and one of the bills of lading indorsed in blank were received by the vendee, and he effected an insurance on the cargo. The vessel was stranded on the voyage, and the deals were saved, but so much injured as not to be worth sending for. The vendee's agent, on hearing of the accident, gave the underwriters notice of abandonment the day before the bill became due, but they refused to accept it. The bill was dishonoured, and the goods were stopped in transitu in consequence of the vendee's insolvency. In an action by the assignees of the vendee (who subsequently became bankrupt) against the under- writers, it was contended on the part of the defendants that the stoppage in transitu rescinded the contract, and put an end to the vendee's interest in the goods, so that he had sustained no damage. The assignees contended on the other hand that stoppage in transitu does not destroy the contract, but only je-vests a lien, and the property in the goods remains in the vendee. Lord Tenterden, C. J., in delivering the judgment of the Court, said, — "The question in this case was, whether the bankrupt had an interest in the goods insured, at the time of the loss, and that depended on the effect which is to be given to the stoppage in transitu. It was argued on the part of the defendants that its effect was to rescind the contract, and to revest the property in the original owners ; — on the part of the plaintiffs, that it only restored to the (g) 10 B. & C. 99 ; Stephens v. Wilkinson, 2 B. & Ad. 323. P 210 STOPPAGE IN TRANSITU. owners a right of possession, and placed them in the same situation as if they had not parted with the goods. There does not appear to be any casS in which this point has been expressly decided. But we are of opinion that, under the peculiar circumstances of the present case, the bankrupt, after the stoppage in transitu, had no property in the goods insured ; and therefore this action cannot be supported " Qi). In James v. Griffin {%), Parke, B. said, — " Whether this act of retaking rescinds the contract, or merely restores the right of possession, can hardly as yet be considered as finally determined ; for even in the case of Clay v. Harrison (k), where it was thought it would necessarily be decided, it became ultimately immaterial to settle it, as appears by the note of the reporter, which I know to be correct, and to contain the true gi'ound of the judgment. It is equally unimportant in this case to give any decision upon it, though I must own I feel very little doubt upon the question." In Jenkyns v. Usborne (I), Tindal, 0. J. said, — " It was objected that in this case, the property in the goods had not vested in the plaintiff at the time of the stoppage, but only an interest in and right to receive a certain portion of the (h) The following note is appended to the report of this case : — " It appeared from the special case, that, by the contract between the bankrupt and the vendors, the latter were to supply a cargo of timber. There was no bargain for any specific ascertained chattel ; but the vendors were at liberty to supply any timber answering the description of that ordered ; and, consequently, no property passed till the cargo of timber was appropriated by the vendors to the vendee, by the delivery on board the ship. The subsequent stoppage in transitu, supposing it had only the effect of re-vesting the possession in the vendors, and placing them in the same situation as if they had not parted with the goods, destroyed the effect of that delivery, which was the only circumstance which vested the property in the vendee, and, consequently, the property re-vested in the vendors. They then were exactly in the same condition as if the goods had always remained in their warehoused ; and, in that case, the bankrujit would have had no interest in the goods ; his rights, if any, would have vested in contract merely." (i) 2 M. &W. 632. (fc) 10 B. & C. 99. (l) 8 Scott N.E. 522. EFFECT OF ITS EXERCISE ON THE CONTRACT. 211 cargo, to be afterwards ascertained and appropriated to the parties intended ; but we see no sound distinction, with reference to the right of stoppage in transitu, between the sale of goods the property of which is in the vendor, and the sale of an interest which he has in a contract for the delivery of goods to him ; if he may rescind the contract in the one case for the insolvency of the purchaser, he must, by parity of reason, have the right to rescind it in the other." Where a contract is made for the vendee to charter and send a vessel to receive a cargo from the vendor who takes biUs of lading making the goods deliverable to his order, and the price is agreed to be paid on receipt of invoice and bills of lading by the vendee, his bankruptcy does not rescind the contract, and the assignees may perform his part of the contract, and are entitled to the benefit of it without gi^^ng notice within a reasonable .time to the vendor of their adoption of the contract. In Gibson v. Carruthers (m), it appeared that Harris, before he became bankrupt, at the request of the defendants, bargained and agreed to buy from the defendants linseed, free on board at Odessa ; the shipment to be made on board the vendee's vessel on arrival at Odessa, which vessel was to be chartered for that port, and the amount of invoice was to be paid on handing over the same and the bill of lading to the vendee in London. Harris despatched a vessel to Odessa, chartered by him, but became bankrupt before her arrival, and the defendants refused to deliver the linseed on board. The question was, whether the assignees of the bankrupt could maintain an action for the damage sustained by this refusal Three judges, Parke, Gurney, and Eolfe, BB. decided that the plaintiffs were entitled to recover, as showing a good cause of action. " They thought that the case did not re- semble one of stoppage in transitu, and that no such analogy (m) 8 M. & W. 321. p 2 212 STOPPAGE IN TEANS1TI7. could be drawn. It might be conceded that, the same circumstances which would justify a seller in stopping the goods in transitu, would also warrant his retaining them before the transitus had commenced, where nothing remains to be done but to deliver the goods to the vendee. But here the proposed transit of the linseed from Odessa to London was not a transitus within the meaning of the doctrine rela- tive to stoppage in transitu. The very essence of that doctrine is, that during the transitus the goods should be in the custody of some third person, intermediate between the seller who has parted with, and the buyer who has not yet acquired, actual possession. It applies only to the case of goods sold and delivered, and the privilege has never yet been extended further than to allow resumption of possession in case of bankruptcy or insolvency, after the contract was complete by delivery, and to undo, as it were, delivery. In this case the linseed was to be brought to London, not in the ordinary course of delivery by a seller to a buyer, but under the terms of a special contract, which reserved to the seller the exclusive control over it by means of the bills of lading. There is no trace of any authority for saying that bankruptcy Or insolvency excuses the party contracting with the bankrupt from performing any other unexecuted part of his contract ; he had no right to anticipate that when he had performed his part of the contract, the bankrupt, with whom he had contracted, would not by himself or his assignees perform what he had agreed to do. To allow a person to retire from his agreement before it is executed, and the goods ready to be delivered, is to deprive the bankrupt and those who represent him, of all power to have the goods, on payment of the stipulated price, and would work the greatest injustice where the bankrupt had already incurred expense. If there were a contract to build a vessel for the bankrupt, he supplying a part of the timber, and paying the price by instalments, the last on delivery, and the bank- EFFECT OF BANKRUPTCY ON THE CONTRACT. 213 ruptcy occur after the timber has been supplied, and some instalments paid, and before the vessel is complete ; it could not be contended for an instant, that the builder could refuse to complete his contract on the ground of that bankruptcy, and render all the previous expense of the bankrupt unavailing ; and yet that case is similar in principle to the present. The bankrupt has incurred the expense of chartering a ship ; are the defendants to be at liberty to refuse to perform what they have engaged to do, on the speculation that the bankrupt will not pay ? This question must be answered in the negative ; and for these reasons the plaintiff is entitled to recover." The three judges, therefore, having treated the subject not as a case of stoppage in transitu, but confined it to the proposition that bankruptcy or insolvency does not necessarily render an executory contract voidable, the question, whether stoppage in transitu enables the vendor to rescind the contract was not discussed by them. Lord Abinger, C. B. differed from the other three judges, and on that account he went very fully into the subject. " He thought that if the defendants had actually shipped the goods before they had notice of the bankruptcy, and the bankruptcy had occurred afterwards, they might have stopped the goods in their progress to the buyer, had it been in their power to do so ; and if the goods had actually arrived at their destination, they might still have refused to hand over the bill of lading and invoice till the price was paid. The question then was, whether under the actual circumstances they were compellable by law, knowing that the bankrupt could not pay them, to expose themselves to the risk of freight and insurance, and sending their goods perhaps to a falling market, upon the chance only of its suiting the interest or the pleasure of the assignees to pay them ? For it had not yet been contended that the assignees were bound, or could have been compelled to pay them. He was of opinion that it followed from the right of the vendors to 214 STOPPAGE IN TRANSITU. stop the goods in transitu, if they heard of the bankruptcy of the vendee before their delivery, that they had, d fortiori, a right to refuse to part with the possession of them at all, if they had notice of the bankruptcy whilst the goods remained in the vendors' actual possession. He thought that the mere insolvency of the vendee would have been a bar to any action brought by him under these circumstances ; and if he could not by reason of his mere insolvency, have maintained an action for the refusal to ship the goods, no right to maintain such an action vested in his assignees by the event of his subsequent bankruptcy. But it was said that the phrase ' stoppage in transitu,' ex vi termini, implies that a transitus must commence before the right can be exercised. In other words, that a vendor, in order to secure himself from the loss of his goods, by delivering them to a bankrupt vendee, must send them away, that he may exercise the right of bringing them back again, or of preventing their delivery. That if he agreed to sell goods upon credit, and the vendee should become insolvent before they are delivered, he cannot refuse to deliver them to the vendee or his assignees, upon the application of the one or the other in person ; but he may prevent the delivery to either, if he will only take the trouble before they apply to make the goods set out upon their journey — that he must deliver them to a carrier, in order to prevent their delivery to the vendee. Surely the absurdity of this conclusion is a sufficient refutation of the argument. It is indeed true that a stoppage in transitu, literally speaking, can have no place before a transitus commences. But the reason why a vendor possesses the right to stop in transitu is, that he is not bound to deliver to an insolvent vendee or his assignees. If he were so bound, he could not stop them in transitu, the right to do which proves, d, fortiori, a right to refuse to part with the possession, in case of the insolvency of the vendee. He further considered that the absence of all example of the EFFECT OF BANKRUPTCY ON THE CONTBACT. 215 assignees of a bankrupt vendee bringing an action for tbe non-delivery of goods, was a very cogent proof of tbe opinion whicb had prevailed on the subject. There was a case of an action brought by an insolvent vendee against a vendor, the decision of which went the full length of establishing the position he had laid down, that the insolvency of the vendee discharges the vendor from the obligation of parting with the goods upon credit. That was the case of ^Reader v. Knatchbull (n), tried in 1786, before Mr. Justice BuUer. The plaintiff declared upon an agreement by the defendant to deliver to him a quantity of Manchester cottons. The defence was, that after making the contract the plaintiff had compounded with his creditors. Mr. Justice BuUer directed the jury, that if they believed the plaintiff was reaUy in such a situation as to be unable to pay for the goods, that was a good defence in point of law to the action, and the jury accordingly found a verdict for the defendant. He thought that this authority ought to be deemed conclusive upon a question in which common sense and common justice point to the same conclusion ; and to apply the principle to the present case, — is it a case in which the vendor, after the commencement of the transitus might have stopped the goods, and prevented their delivery to the bankrupt ? That it is so was proved by the case of Bothlingk v. Inglis (o), in which, though the vendee, by the contract, was to charter a ship and send it for the goods, and though the goods were accordingly shipped in that vessel, it was held that the vendor might still exercise the right of stopping in transitu ; that case is exactly similar to the present, in all points but one, which made this a stronger case for the exercise of the right, and that point was, that by the contract, the vendor was to retain the biU of lading in his own hands till it was exchanged for the money. It was the case, therefore, of a contract to sell goods to be (n) Cited 5 T. E. 218. (o) 3 East, -381 ; aide, p. 100. 216 STOPPAGE IN TRANSITU. delivered at a future time, before which the vendee has; become bankrupt. If therefore the vendor should ship the goods before he has notice of the insolvency, he has a right to stop their delivery to the insolvent, who cannot pay for them. Was he bound then, after previous notice of the bankruptcy, to send the goods upon the chance that the assignees may take them and pay him ? Surely not ; the assignees are under no obligation to pay him ; they might refuse to take the goods and leave them on his hands. The vendor was, therefore, according to the opinion of the other members of the Court, reduced to this dilemma, that he was bound to send the goods to London, there to take the chance of market, which, if favourable, might tempt the assignees to receive them, and pay the price ; if un- favourable, must bring a loss upon him, even of the whole, should the price not be equal to the freight. Whereas, the very object of the contract was, to sell for a fixed price, and have nothing to hazard. Under these circumstances it appeared to the Chief Baron that the vendors were discharged by the insolvency of the vendee from the obligation to send forward the goods at all." In Wentworih v. Outhwaite (p), the question arose, whether the effect of stoppage of part of the goods which had not arrived at the ultimate destination was to rescind the contract, or only to place the vendor in the same position as if he had not parted with the goods, and the Court took time to consider it. In this case it appeared that several parcels of goods were purchased under one entire contract from the vendors at Hull, by the vendee living near Leeds. Part of the goods, consisting of two packages, were foi-warded by rail to Leeds, and arrived on the 20th of August. One of these packages was taken possession of by the vendee on the 23rd of August. The remaining package was seized by the (p) 10 M. & W. 436. AS TO EESCISSION ON THE CONTRACT. 217 sheriff, the plaintiff in the actio i, on the 11th of September, 'under an execution against the vendee. But in the meantime some remaining parcels, comprised in the same contract, which were forwarded by water carriage to Boroughbridge, were stopped in transitu, on the 8th of September. It was con- tended for the defendants, that this had the effect of revesting in the vendors, at that time, all the parcels contained in that contract, and amongst others, that seized by the sheriff. The Court were unanimously of opinion that this objection to the plaintiff's right to recover in respect of the last-mentioned parcel, could not prevail. As to the effect of stoppage in transitu, Parke, B. said, in delivering the judgment of the Court, — " Whether it ia entii-ely to' rescind the contract, or only to replace the vendor in the same position as if he had not parted with the possession, and entitle him to hold the goods until the price be paid down, is a point not yet finally decided, and there are . difficulties attending each construction. If the latter suppo- sition be adopted, as most of us are strongly inclined to think it ought to be, on the weight of authority, the vendor is entitled to retain the part actually stopped in transitu till he is paid • the price of the whole, but has no right to retake that which has arrived at its journey's end ; his right of lien on the part stopped is re-vested, but no more. My Lord Chief Baron (q) has expressed an opinion, to which he still adheres, that the contract is rescinded by a stoppage in transitu, but he does not think "that this affects the right of the vendee to retain that portion of the goods which has been actually delivered to him, or in other words, has reached the place .of its destination, more especially when the goods and the price may be apportioned, as in the present case, and a new contract be implied from the actual delivery and reten- tion of a part.'' (g) LorJ Abiiiger, C. B., iu the ease of Gibson v. Carruthers, ante, p. 213. 218 STOPPAGK IN TRANSITU. The question, therefore, is not yet definitely settled, whether the effect of stoppage in transitu is to rescind the contract, or merely to re-vest the lien of the vendor, on the goods stopped, or on whatever portion may be undelivered at the time of the insolvency of the vendee ; but the majority of the judges, who have expressed an opinion upon this point, have inclined to the view that stoppage in transitu does not effect a rescission of the contract of sale ; if it were other- wise, the vendor should have no right, after a re-sale of the goods, to claim on the estate of the bankrupt or insolvent vendee for any loss sustained through the non-performance of the contract on the part of the vendee, or in consequence of a fall in the market price of the goods. Section II. — Power of Re-sale. In the event of the bankruptcy of the vendee, the right of the vendor in general exceeds a mere lien, for he may re-sell the goods (r). Lord Holt ruled " that after earnest given, the vendor cannot sell the goods to another, without a default in the vendee ; and therefore, if the vendee does not come and pay and take the goods, the vendor ought to go and request him ; and then if he does not come and pay and take away the goods in convenient time, the agreement is dissolved, and he is at liberty to sell them to any other person." In Bloxam, v. Sanders (s), Sanders & Co. sold to Saxby some hops ; part of them was weighed, and an account of the weights, together with samples, were delivered to the vendee. It appeared that the usual time of payment in the trade was the second Saturday following the purchase. Saxby did not pay for the hops at the usual time, whereupon Sanders & Co. gave notice that unless they were paid for by a certain day they would be re-sold. The hops were not paid for, and (r) Langfort v. Tyler, 6 Mod. 162 ; 1 Salk. 113. (a) 4 B. & 0. 941. POWER OF RE-SALJi:. 219 Sanders & Co. rc-sold a part with the consent of Saxby, who afterwai'dH became bankrupt ; and then Sanders & Co. re-sold the residue of th<; hops without the consent of Saxby en- his assignees. Account sales of the hops so sold were delivered to Saxby, in which he was charged warehouse-rent from the time at which the price of the hops was payable. The assignees of Saxby demanded the hops of Sanders & Co., and tendered the warehouse-rent and charges ; and Sanders & (!(). having refused to deliver them, the assignees brought trever. The jury found that Sanders & Co. had not re- scinded the contract of sale ; and the Court held that the assignees were not entitled to maintain trover to recover the value of the hops, inasmuch as, in order to maintain that action, the plaintiff must have not only a right of property but a right of possession, and that although a vendee of goods acquires a right of property by the contract of sale, yet he does not acquire a right of possession to the goods until he pays or tenders the price. Bayley, J,, in delivering judgment, said, — " If goods are sold upon credit, and nothing is agreed upon as to the time of deliveiing the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him ; but his right of possession is not absolute, it is liable to be defeated if hes becomes insolvent before he obtains possession. Whether default in payment when the credit expires will destroy his right of possession, if he has not before that time obtained actual possession, and put him in the same situation as if there had been no bargain for credit, it is not now necessary to inquire, because this is a case of insolvency, and in case of insolvency the point seems to be perfectly clear. If the seller has dispatched the goods to the buyer, and insolvency occurs, he has a right in virtue of his original ownership to stop them in transitu. Why ? Because the property is vested in the buyer, so as to subject him to the risk of any accident; but he has not an indefeasible 220 STOPPAGE IN TRANSITU. right to the possession, for his insolvency, without payment of the price, defeats that right. And if this be the case after he has dispatched the goods, and whilst they are in transitu, dj fortiori, js it when he has never parted with the goods, and when no transitus has begun. The buyer, or those who stand in his place, may still obtain the right of possession if they will pay or tender the price, or they may still act upon their right of property, if anything unwarrantable is done to that right. If, for instance, the original vendor sell when he ought not, they may bring a special action against him for the injury they sustain by such wrongful sale, and recover damages to the extent of that injury ; but they can maintain no action in which right of property and right of possession are both requisite, unless they have both those rights." In Bloaum v. Morley (t), the circumstances of which were nearly similar to those in the last case, Bayley, J., in delivering the judgment of the Court, said, — " This is also an action - of trover for hops, which were the subject of sale from the defendant to Saxby, and the only distinctions between this case and that of Bloomm r. Sanders are these, that the bought notes here imported that the hops were sold at certain credits, that the defendant received 700^. in part payment of the price, that some of the hops were in the defendant's possession, and some in the warehouses of other persons in the defendant's name, and that the defendant sold them, some on the day the act of bankruptcy was committed, and the rest after the commission issued, without returning to Saxby, or to the plaintiffs, the ' 7001., or any part thereof. There was no notice to the persons who had any of the goods in their warehouses to transfer them into Saxby's name, but they remained after Saxby contracted to buy them as they did before. The action in this case was not a special action for damages for selling without returning the 700?., or for (<) 4 B. & C. 951. POWER OF KE-SALE. 221 selling when, according to his contracts with Saxby, he had no right to sell, but it was an action of trover which assumed that the right of property was in the assignees of Saxby, and that the sale by the defendant vested also the right of pos- session in them. It seems to us, however, upon the same principles which prevented the plaintiffs from maintaining the action against Sanders, they cannot maintain the present action." In Milgate v. K-ehble {u), goods were sold to be paid for by instalments, the balance to be paid before removal. The vendor allowed the vendee to place the goods under lock and key upon the vendor's premises, and delivered the key to the vendee, but retained the key of the external inclosure. The balance being unpaid, the vendor re-sold the goods, and the vendee brought trover against him. At the trial. Lord Abinger left it to the jury to say whether a reasonable time had elapsed, after the stipulated day of payment, before the vendor resorted to the measure of re-selling the goods ? The vendee was not insolvent ; and the jury found that a reason- able time had not elapsed, and they returned a verdict for the vendee. On a motion for a aonsuit, the Court of Common Pleas held, that the balance being unpaid, the vendee had not such a possession as would entitle him to maintain trover against the vendor for the wrongful removal and re-sale of the goods. In Martindale v. Simith (x), it appeared that the defendant sold to the plaintiif stacks of oats then on the defendant's ground, under a written agreement, by which the plaintiff was to have liberty to leave the stacks on the ground for four months, and was to pay for them in twelve weeks from the date of the agreement. The plaintiff did not pay at the appointed time, and the defendant informed him that as he had failed in payment at the time appointed by the (u) 3 M. & G. 100. {x) 1 Q. B. 389. 222 STOPPAGE IN TRANSITU. contract, he should not have the stacks. Then the plaintiff tendered the money, but the defendant refused it, and after- wards sold the stacks. The Court of Queen's Bench decided that the plaintiff was entitled to recover in an action of trover. Where the vendee of goods agrees to leave them in the warehouse of the vendor, paying a certain rent for the room, upon the dishonour of the bill given in payment, the seller has a right to retain and re-sell the goods {y) ; but not after the rights of third parties have intervened. In Bunney x. Poyntz (z), the defendant, having given a general authority to Davis to sell hay for him, advertised a sale, by the conditions of which a deposit was to be paid, and three months credit given on approved security for the remainder, and the lots were to be taken away within forty weeks of the sale. Davis sold the hay, and took the vendee's promissory note for the price. The vendee applied to Davis for leave to cut some of the hay, and, it being granted, he cut and took away part, but he was afterwards forbidden by Davis to remove the residue. Davis indorsed the note and discounted it with his bankers, who credited him with the amount, less the discount; it was afterwards dishonoured. Davis having become bankrupt, it was agreed between the bankers and the vendee of the hay, that the latter should sell them the residue of the hay, and that they should pay him part in money and return him his note in satisfaction of the residue. The bankers, within forty weeks after the sale, demanded the hay of the defendant, who was Davis's principal, but he refused to deliver it ; they brought trover against him for the hay; and it was held, first, — that assuming the defendant to have had a lien after the sale, and after the vendee had given his promissory note for the price of the hay, that lien was not divested by reason of the {y) New v. Swaiii, D. & L. 193. {z) 4 B. & Ad. 568. DEFAULT OF VENDEE. 223 vendee having removed part of the hay, as it did not appear that this part delivery to him was by way of delivery of the whole ; and secondly, — that the defendant had no lien, because he was to be considered as having been paid for the hay by reason of his agent having taken the vendee's promissory note, and discoimted it, and its being outstanding in the hands of the plaintiffs. After a re-sale of goods by a vendor, as upon default made by the first vendee, he cannot recover against such first vendee as for goods bargained and sold. In Hagedorn v. Laing (a), Gibbs, 0. J. said, — " I much doubt whether this can in any manner be considered as a case of goods bargained and sold. Here is a particular contract, that on paying for the goods, and taking them away at a certain time, the purchaser shall have the goods ; but if it be a contract of bargain and sale, it certainly is subject to a condition ; for if the purchaser do not take the goods within a certain time, the seller may, by the terms, rescind the contract ; he may re-sell, and if he re-sells, I think he shows his dissent to the contract of bargain and sale." Hore V. Mil/ner (b) was an action in assumpsit for not taking away goods within a reasonable time. It was proved that the defendant agreed to take away the goods in a nnonth, but that, he failing to complete that contract, the plaintiff re-sold them to another person. Lord Kenyon, in directing a nonsuit, held that the plaintiff, having re-sold the goods, he had by that act abandoned his right to insist on the defendant taking the goods, as by the re-sale he had not considered them the property of the defendant ; and that he could only recover damages for the breach of the agreement. But in Mert&ns v. Adcoch (c), which was an action on the case for not taking away goods sold by public auction, and (a) 6 Taun. 162. (h) 1 Peake, 42, n. (c) ?Esp. 251. 224 STOPPAGE IN TRANSITU. for a loss on the re-sale, Lord EUenborough ruled at Nisi Prius that the plaintiff could recover damages in this form of action ; for if he had recovered in an action for goods bargained and sold, the defendant might maintain an action of trover for them ; and that it was no objection to the plaintiff's right to recover damages in an action on the case, that he had not the goods then to deliver. In Keymer v. Suwercropp (d), it appeared that the plaintiffs had sold coffee to the value of 1,100?. ; and by the conditions of sale the goods were to be paid for on delivery, and were to be weighed and taken away within one month from the day of sale. The coffee was bought by Kenyon & Co., as brokers for . the defendant ; but this fact Was not known to the plaintiffs until after Kenyon & Co. had become insolvent. The defendant had received dock-warrants for the coffee, and had taken delivery of part, for which he gave Kenyon & Co. a bill for 7511. The residue of the coffee was stopped in transitu by the plaintiffs; and they demanded ■payment of the defendant, which was refused. An action in assumpsit was brought against the principal for the price of the coffee ; and his counsel contended, that as to that part of the goods which had been stopped in transitu, the plaintiffs could not recover the value of it, either under a count for goods sold and delivered, as the coffee had not been delivered ; or under a count for goods bargained and sold, as the warrants had not been regularly tendered to the defendant ; in fact, that the goods had been withheld from him, and the contract was thereby rescinded. But Lord EUenborough ruled, that " the coffee was stopped only to prevent its getting into the hands of the insolvent brokers, and as payment was to precede the delivery, it was enough if the plaintiffs on being paid were ready to have delivered it." Greaves v. Ashli/n (e) was an action for not delivering a (d) 1 Camp. 109. ' (e) 3 Camp. 426. DIFFERENCE OF PRICE ON RE-SALE. 225 quantity of oats sold to the plaintiff at 45s. 6^^. per quarter, on the 16th of March. The defendant, on the 23rd March, complained that the oats were not carried away ; and gave notice, that if they were not carried away immediately, he should re-sell them to other persons. The plaintiff still neglecting to carry them away, the defendant re-sold them accordingly at 51s. per quarter. It was contended for the defendant, that he was entitled to re-sell the oats in the manner he had done, the plaintiff not having carried them away in a reasonable time after notice, and that under these circumstances, the contract might be considered as dissolved, and the property in the goods re-vested in the defendant. But Lord Ellenborough said, — "If the buyer does not "carry away the goods bought within a reasonable time, the seller m.ay charge him warehouse room ; or he may bring an action ■ for not removing them, should he be prejudiced by the delay. But the buyer's neglect does not entitle the seller to put an end to the contract. In this case the notice given to fetch away the goods could not discharge the defendant from his contract, nor empower him to seU the property of the plaintiff." So the plaintiff had a verdict for the difference between the price at which he bought the oats, and the sum for which they were re-sold. In Maclean v. Dunn (/), where the purchaser of goods refused to take them, it was held that the vendor by re- seUijDg them, did not preclude himself from recovering damages for the breach of contract. The defendant's counsel contended that the re-sale rescinded the contract, and deprived the plaintiff of any right to sue. The Court of Common Pleas decided that it did not. Best, C. J., in delivering judgment, said, — "It seems clear that the re-sale did not rescind the contract. It is admitted that perishable articles may be re-sold. It is difficult to say what may be esteemed (/) i Bing. 722. 226, STOPPAGE IN TRANSITU. perishable articles, and what not ; but if articles are not perishable, price is, and may alter in a few days or a few hours. In that respect there is no difference between one commodity and another. It is a practice, therefore, fouiided on good sense, to make a re-sale of a disputed article, and to hold the original contractor responsible for the difference. The practice itself affords some evidence of the law, and we ought not to oppose it, except on the authority of decided cases. Those which have been cited do not apply. Where a man, in an action for goods sold and delivered, insists on having from the vendee the price at which he contracted to dispose of his goods, he cannot, perhaps, consistently with such a demand, dispose of them to another ; but if he sues for damages in consequence of the vendee's refusing to per- form his contract, it is not necessary that he should retain dominion over the goods ; he merely alleges that a contract was entered into for the purchase of certain articles, that it has not been fulfilled, and that he has sustained damage in consequence. There is nothing in this which requires that the property should be in his hands when he commences the suit ; and it is neither required by justice, nor by the practice of the mercantile world. We are anxious to confirm a rule consistent with convenience and law. It is most convenient that when a party refuses to take goods he has purchased, they should be re-sold, and that he should be liable for the loss, if any, upon the re-sale. The goods may become worse the longer they are kept ; and, at all events, there is the risk of the price becoming lower" (g). In Gosling v. Birnie (h), the vendor of timber lying on the defendant's wharf having received only part of the price, gave notice to the vendee that unless the balance were paid the next day, he would re-sell the timber and hold the vendee responsible for any loss. The money not having been paid (g) See Acetal v. Levy, 10 Bing. 378. (h) 7 Bing. 339. MEASURE OF DAMAGES. 227 by the time specified, the vendor re-sold the timber to the plaintiff, and gave a written order to the defendant to deliver it on receiving a certain sum. Upon receiving the order the defendant agreed to hold the timber for the plaintiff. Then the original purchaser paid to the vendor the balance due by him, and the defendant refused to deliver the timber to the plaintiff. The Court gave judgment in favour of the plaintiff, who was the second purchaser ; it was not neces- sary to decide in whom the property in the timber vested, although the Court was far from being satisfied that it was in the first purchaser. In Fitt V. Gassanet (i), the plaintiffs purchased oil of the defendants by sample, and paid a deposit on receiving part of the article. The plaintiffs gave notice to the defendant that the quality of the oil delivered did not correspond with the sample, and required him to take away what had been delivered, and to repay the deposit. The defendant re-sold the residue ; and it was held that the plaintiffs could not recover the deposit as money had and received, unless there was fraud in the contract, or there had been an agreement between the parties to rescind the contract. Tindal, C. J. said, — " If the re-sale took place after the plaintiffs had signi- fied that they would not receive the rest of the goods, it cer- tainly was not necessary for the defendant to keep them for an unlimited time." In Wilmhurst v. Bowker (Jc), there was a contract for the purchase of wheat to be paid for by a draft on a London banker. The vendor sliipped the wheat on account and at the risk of the vendee, and sent him the bill of lading. The vendee, who was not insolvent, remitted a banker's draft, but not a draft on a London banker ; the vendor returned it, and having stopped the goods in transitu, re-sold them. The case came first before the Court of Common Pleas in 1839, when (i) 4 M. & G. 898, W 7 M. & G. 882. Q 2 228 STOPPAGE IN TRANSITU. it was held on demurrer (l), that upon the state of the record' it was unnecessary to determine whether the vendor, upon the neglect of the vendee to remit the draft ,upon a London banker, had a right forthwith to rescind the sajle, because it appeared under the circumstances pleaded, and admitted on the record, that the vendee was not in a position to maintain an action of trover for the sale of the wheat ; however, he might have been able to have brought a special action upon the case against the vendor for any damage sustained in con- sequence of the re-sale, without waiting a reasonable time for the remitting of the banker's draft. In 1841, the case came again before the Court of Common Pleas on a motion for judgment non obstante veredicto (m), on the ground that the wheat was shipped on account and at the risk of the vendee, to be delivered to him ; and that the vendor having parted with the possession, had no right to revoke and rescind the sale, and cause the wheat to be stopped in its passage to the vendee, he not being insolvent or bankrupt. The Court, however, decided that although the property was in the vendee, yet on the true construction of the contract the de- fendants were to have a right to retain possession till the delivery of a London banker's draft. On appeal to the Court of Exchequer Chamber (n), it was held, reversing the judgment of the Court of Common Pleas, that by the delivery of the wheat to the master of the vessel for the account and at the risk of the vendee, and by the transmission of the indorsed bill of lading, the vendor had so parted with the property and' right of possession as not to be entitled to intercept the delivery. Lord Abinger, C. B., in delivering judgment, said, — "We are quite unani- mous ; and however reluctant we may be to overturn a considered.judgment of the Court of Common Pleas, we find ourselves unable to come to any other conclusion than that (I) 5 Bing. N. C. 641. (m) 2 M. & G. 792. (;i) 7M, &G. 882.- CLAIM AGAINST VENDEE'S ESTATE. 229 , the vendee is entitled to recover. We accede to the general principle laid down by the Court below ; and if the facts had been before a jury, we are not prepared to say that they might not have drawn the inference that the remitting of a London banker's draft was a condition precedent to the vesting of the property in the wheat in the vendee. But we draw no such inference from what appears upon the record. The delivery of the bill of lading and the remitting of the banker's draft could not be simultaneous acts ; the vendee must have received the bill of lading and invoice before he could send the draft. The default on the part of the vendee amounts to no more than this, that he may have omitted to perform one part of his contract." And Alderson, B. said, — ■ " It is quite consistent with the decision of the Court of Common Pleas that the remitting of the banker's draft was a condition subsequent.'' On an exercise of the right of stoppage in transitu against a vendee who has become bankrupt, his assignees may elect whether they will adopt or abandon the contract ; but they cannot rescind it without the consent of the vendor. If the contract is likely to turn out beneficial to the bankrupt estate, of course the assignees wlU adopt it ; in which case the whole price will be payable to the vendor on delivery of the goods ; and he wiU not be obliged to claim as an ordinary creditor merely for a dividend. But if the assignees should exercise the option of abandoning performance of the contract, what are the rights of the vendor over the goods and over the estate of the bankrupt vendee ? Supposing the vendor's rights to be those of the holder of a mere lien, the vendee being solvent, we have seen that the vendor has' the power of re-selling the goods and of obtaining damages for breach of the contract ; and the question arises, whether he has such rights if he should stop the goods in transitu. There is no apparent reason for supposing that he has not ; for it seems equitable that, as the assignees of the 230 STOPPAGE IN TRANSITU. bankrupt vendee have the power of adopting the contract on the one hand, (mutuality being one of the first principles of the law of contract), the vendor should have the corresponding right of claiming a dividend from the bankrupt's estate for any loss that he may have sustained through the non-performance of the contract on the part of the vendee, and by reason of any fall in the market price obtained for the goods on a re- sale. The French code provides, as we have seen (o), that in the event of stoppage in transitu, the vendor shall be bound to reimburse the estate of the bankrupt vendee for all ad- vances made for freight or carriage, commission, insurance, or other charges, or to pay sums due for such charges, if they have not been paid. But the general law of stoppage in transitu sanctions no such provision, just and equitable though it be. However, these questions do not frequently arise, as the practice of consignors is to draw bills on the consignee for the price of the goods ; these bills are almost invariably negotiated with third parties, who claim upon the bankrupt estate for the amount ; thereby leaving the assignees no option except to adopt the contract, or pay heavy damages, indirectly to the vendor, in the shape of a dividend on the bills of exchange drawn on the consign- ment. (o) Ante, p. 6. INDEX. ACCEPTANCE, of a delivery order by a warehouseman transfers the property, 80. of warehouse rent by vendor, effect of, 71, 82, 222. ACCOUNT, if mutual, though unadjusted, the right stiU subsists between the parties, 27, 32. but the state of, may cause a suspension of its exercise, 28, 32. consignment on joint, 159. with mutual credits, effect of, 162. ACTS OF OWNERSHIP, effect of marking goods, 70, 78, 87, 89, 127. giving samples to vendee, 71. weighing, measuring, or separating goods, 72, 87, 90. acceptance of warehouse rent, 73, 82, 222. acknowledging a delivery order, 76, 81, 91. sale to sub- vendee, 77. ADMIRALTY COURT, proceeding in, 59. to enforce valid exercise of the right, if shipmaster has committed a breach of duty, 60. AGENT, (See DBtrvBRT, Factok.) abroad, in advance for principal, instance of exercise of the right by, 10.- of consignor may exercise the right, 12. who purchases in his own name may, 16. but he must pay for the goods, and, not leave liability for payment on his principal, 17. of alien enemy trading under a Kcence from the Crown may exer- cise the right, 21. 232 INDEX. AGm!T—Continmd. if unauthorised, a ratification of his act after the transitus is ended is ineffectual, 24, 57- if general, otherwise, 26, 57. of the vendor receiving payment takes away the right, 32. may exercise the right by a notice to the carrier if authorised by his principal, 56, 67. a subsequent adoption and ratification of the notice, by the principal, has the effect of a previous authority, 25, 57. his possession distinguished from the actual possessi6n of the vendee, 66, 114. delivery to, of goods to be re-packed, 114, 120. effect of intermediate delivery to, 115. delivery to, of goods to be forwarded, 118. on receipt of indorsed bill of lading, may stop delivery of the goods to the consignee, 166. as it vests in him a special property, 166. acting for undisclosed principal may transfer bill of lading, 176. if authorised, 177. circumstances equivalent to authorisation, 179. pledge by, 200. AGREEMENT, between vendor and vendee to allow the goods to remain in the possession of the vendor is equivalent to actual delivery to the vendee, 70, 78. between consignor and shipmaster may have the effect of vesting the property in the consignee, 109. between consignor and consignee to have goods shipped on account of the consignee may terminate the transitus, 110. ALIEN ENEMY, trading under a licence from the Crown, exercise of the right by, 21. AMERICA, LAW OF, right adopted by, 4, 8. APPROPRIATION, of specific chattel is necessary to a bargain and sale, 65, 104, 210. is complete, by ship receipt acknowledging goods specially con- signed to be deliverable to the consignee, 109. by taking biUs of lading stating that the goods are shipped on account of the vendee, 110. of bill of lading by agent, without the authority of the shipper, right not affected by, 179. INDEX. 2S8 ATTACHMENT, PROCESS OF, right is not divested by, 138. AUTHORITY. per.son exercising right for another without, 24. general agent exercising right without, 26. effect of deposit of bill of lading without, 160. iadorsement of bill of lading without, 176. circumstances equivalent to, 177. BANKRUPTCY OF VENDEE, right exercisable on, 1, 11. though acceptances negotiated by the vendor and proveable under the commission of, 30. not necessary to exercise of the right, insolvency is sufficieiit, 38. assignees in, may adopt the contract, 38. effect of, on the contract, 40, 230. actual delivery good after, 41. does not amount to countermand of delivery, 41. effect of rejection of goods after, 43. passes goods in the possession, order, or disposition of the bank- rupt to his assignees, 70. effect of re-delivery of goods to vendor after, 47, 97. effect of re-delivery of goods to vendor before, with consent of the general body of the creditors, 48. re-delivery of goods to vendor after, constitutes a fraudulent preference, 47, 97. whether contracts rescinded on, 44, 207, 211. vendor's claim on the estate for difference of price of goods on a re-sale, 229. BILL OF EXCHANGE, received by the vendor and negotiated by him, proveable on the vendee's estate amounts to partial payment only, 30. non-payment not considered, 34, how it differs from a bill of lading, 143. BILL OF LADING, what it is, 139. to be signed by master, 139. made out by directions of shipper, 139. generally in three parts, 139. form of, 139. 234 INDEX. BILL OP LABmG— Continued. the assignee of it is authoriseil to receive tlie goods, 140. but formerly he could maiatain no action on the contract to deliver, 140. law of France, 140. peculiar form of, 141. new, ordered by Court at Amsterdam, 7. effect of vendor withholding, 103. effect of indorsement, 10, 104. in blank, 11, 95. does not transfer absolute property to assignee, 142. alteration of the law, 1 43. how it differs from a biU of exchange, 143. may be rendered void on the ground of fraud, 144, 145. deposit in security, 145. where of different imports, 146. to whom shipmaster should deliver goods, 146. to order of vendor, if obtained from shipmaster will counter- mand delivery of the goods, 50. if obtained by vendor from vendee under an amicable arrange- ment not necessarily a stoppage, 10, 50. unless openly with the object of exercising vendor's right, 51. effect if qualified, 92, 169. taken to vendor's order or assigns restrains delivery, 93. until indorsed by vendor, 95. to vendee does not determine the transitus, 108. unless delivery of the goods is otherwise complete, 109. effect of stating that the goods are shipped on account of the vendee, 110. indorsed in blank, where goods are shipped upon condition, 111. if presented by two different holders, 113. effect of refusal of shipmaster to deliver to rightful holder of, 113. , indorsed and transmitted by consignor to consignee in trust to secure payment of bUls of exchange, 21, 109. bond fide transferee from vendor may exercise the right, 22. if indorsed for a valuable consideration to a bond fide pur- chaser without notice, the right is gone as against the con- signee of the goods, 33, 161, 156, although it would have remained as against the con- signee if not indorsed, 34, 151. effect of knowledge of insolvency of consignee on transfer of, 156. assignment in security to partner, 157. special indorsement with a condition, 158, 1?3. for consignment on joint account, 159. indorsement to factor, 161. INDEX. 235 BILL OF LADING— Gontinued. indorsed without consideration does not transfer the property in the goods, 164. indorsement to agent to exercise the right, 165. vests in agent a special property, 166. circumstances equivalent to indorsement, 167. indorsement after delivery of the goods, 169. sub-sale without, 1T5. indorsement by agent, 176. valid if authorised by principal, 177. circumstances equivalent to authorisation, 179. indorsement in security, 180. indorsement for a limited purpose, 183. CAPTAIN". (8ee Shipmaster.) CAKRIER, delivery of goods in his possession may be countermanded on consignee becoming bankrupt, 11, 92. by vendor sending notice of his purpose, 51. will be liable if he afterwards deliver the goods to the vendefe, 53. effect of his lien on the transitus, 135, 137. effect of a tortious taking by the consignee from, 134. effect of a tortious refusal to deliver by, 136. CHARTERED VESSEL. (See Ship.) CIVIL LAW. retention of goods sold according to, 2. transfer of property by, 2. delivery, how constituted by, 61. contract of sale trausferred the risk, but not the property, before delivery accoi:ding to, 62. CODE DE COMMERCE. adoption of the right of stoppage in transitu by, 4. equitable provision of, 6. COMMON LAW, right of lien, 2. adoption of the right of stoppage in transitu by, 13. 236 INDEX. COMPOSITION, accepted hy a vendor for the price of goods undelivered operates as an abandonment of tlie right, 28, CONDITIONS, of a valid exercise of the right : — the Tender must be unpaid, 29. the vendee must be insolvent, 35, the goods must be in transitu-, 61. the vendee must not have assigned his right to the goods for value, 139. CONDITION PRECEDENT, to vesting of the property, 88. payment of the price is not in general, 3, 229. to delivery, where goods shipped on bills of lading indorsed in blank, 111. if annexed to delivery, the right is exercisable, 128. in delivery order, effect of, 128. ^ payment of excise duty is not, 129. payment of the goods may be made, 129. effect of, in bill of lading, 170. special indorsement with, 158, 173. CONSIGNEE, (See Vendee.) on becoming bankrupt, goods, in pos^session .of carrier to be delivered, may be countermanded, 11, 92. if he indorses the bill of lading for a valuable consideration to a honafide purchaser without notice the right is gone as against the indorsee, 33, 151. must be insolvent before right can be exercised, 35. effect of delivery of goods on board of vessel of, 97. goods on board vessel chartered by, 99. for a term of years, 105. of goods on joint account with consignor, 20, 159. lien of, 192. CONSIGNOR, (See Vendoe.) may exercise right, 10, 15. unless bill of lading negotiated by consignee, 21, 31, 151. by any lawful means, 11. by his ageut, 12. against factor, 19, 163, against consignee on joint account, 20, 159. when he may alter the destination of consignment, 174. INDEX. 237 CONTRACT, (,%e Sale.) this right is an equitable principle of the law of, 1. was formerly not transferred by indorsement of bill of lading, 141. alteration of the law, 1 42. may be adopted by the assignees of bankrupt vendee, 38, 42, 212, 229. entire, effect of partial delivery, 126. whether rcxoinded by exercise of the right, 207. effect of bankrnptcy of vendee on the, 211. damages for breach of, by vendee, 225. measure of damages, 227. claim against vendee's estate, 229. COUNTERMAND OP DELIVERY, on insolvency of vendee, 1, 36, 51, 78. when competent, 11, 34, 50, 72. when not competent, .'iO, 70, 228. not effected by bankruptcy of vendee alone, 41. effected by act showing intention, 50. after giving a delivery order, 80, 91. CUSTOM OF MERCHANTS, right approved by, 2, 11. makes bill of lading negotiable, 140. makes dock-warrant negotiable, 188, J 90. DEBT, of creditor who exercises the right, must be subsisting though it may not have been ascertained, 27. composition for, accepted by creditor takes away the right, 28. pledge of dock-warrant for antecedent, 200. DEFEASANCE OF THE RIGHT, (8ee Delivery.) by delivery order to sub-vendee accepted by warehouseman, 77, 80, 91. by indorsement and delivery of bill of lading to bond fide purchaser without notice, 34, 151. by transfer of dock-warrant for valuable cousidoration and hond fide, 185. by honAfide pledge of the document of title by factor, 203. 238 INDEX. DELIVERY, {See Agent, Bill op Lading, Careibr oe Ship- master, Waeehottseman or Wharfinger.) original conception of, 62. may be countermanded on insolvency of vendee, 1, 11, 36. but not otherwise, 36, 70, 228. incomplete, is the ground of the right, 3. bankruptcy of vendee does not amount to a countermand of, 41. if actual, goods cannot be restored to vendor after the bank- ruptcy of vendee, 46. may be countermanded by vendor obtaining bills of lading to his order from shipmaster, 60. is incomplete, if carrier delivers to vendee by mistake after receiving notice to stop on the part of the vendor, 53 by mistake does not vest the property, 54. refusal of, by shipmaster, 59. enforced by Admiralty Court, 60. how constituted in the civil law, 61. actual and constructive, 62. transfer of property by, 63. what sufficient to determine the right, 64. necessary to pass the absolute property on a sale, 65. of goods remaining in the possession of the vendor, 69. effect of marking goods, 70, 78, 87, 89, 127. giving samples, 71. acceptance of warehouse-rent, 71, 73, 82. measuring or separating goods, 72, 87, 89, 91, 128. granting a delivery order, 76, 80, 84, 121. acknowledging sub-vendee as owner, 77, 81. of goods in the possession of a warehouseman or wharfinger, 78. effect of refusal to transfer, 85. of goods in the possession of a carrier or shipmaster, 92. to a vendee at a wharf of goods afterwards shipped in his own name, 106. of goods shipped upon condition. 111. by shipmaster, effect of refusal of, 113. of goods to an agent of the vendee, 114. into depository of vendee, 117. of goods to be forwarded to the vendee, 119. into public warehouse, 121. partial or conditional, 124, 223. of goods before completion of the voyage, 130. at a particular place, 134. effect of carrier's lien, 135, 137. effect of foreign attachment, 138. effect of indorsement of bill of lading after, 169. on bill of lading with a condition imposed, 128, 169. of dock-warrant, effect of indorsement and, 185, 187, 190. power of resale on vendee's refusal to take, 225, INDEX. 239 DELIVERY ORDER, to vendee, eflFect of giving, 64, 76. to sub-vendee, 77. effect of acknowledgment by the oiiginal vendor, 78. effect if not acted upon, 80. effect of transfer in books of 'warehouseman or wharfinger, 81, 84. effect of refusal to acknowledge, 85. not negotiable, 191. DESTINATION, meaning of the term, 66. to use of vendee, entitles him to act as owner, 3, 72. by agent, in furtherance of usual course of business of principal, 17. goods until they arrive at the ultimate place of, are in transitu, 65, 116. effect of taking delivery short of the ultimate, 130. cannot be altered after delivery of bill of lading to consignee's order, 174. DOCK-WARRANT. {See Factor, Pledge.) transfer of, 83, 184. nature of, 183. form of, 184. ownership of goods represented by, 185. indorsement and delivery of, 185. negotiability of, 186. without notice to the dock company, 187. custom of merchants as regards, 191. DOCUMENTS OP PROPERTY, if parted with to a hond fide purchaser without notice, right not exercisable, 1, 151, 185, 203. powers of factor entrusted with, 193. EQUITY. this right a principle of, 14. origin in Courts of, 9. relief against verdict at law by courts of, 10. distribution of proceeds of gooJs by a court of, 12. different rules in mercantile cases reconciled by courts of, 13. 240 INDEX. EXERCISE OF THE RIGHT, (See Mode of Exercise, Bill op Lading.) only during transit of the goods, 1, 3, 61. by agent abroad in advance for hia principal, 10. by any one in position of vendor, 14. by commission merchant who purchases on his own credit, 14. by consignor, 10, 15. and by his agent, 11 by agent who purchases in his own name may, 16. but agent must pay for the goods, and not leave liability for payment on his principal, 17. not by a surety, 17. nor by a person who has a mere lien, 18. by consignor against factor, 19. by a party who remits money on a particular account, 20. but not on a general account, 20. by consignor on joint accouut with consignee, 20, 159. unless bills of lading indorsed and transmitted, 21. by an alien enemy trading under a licence from the Crown, 21. by bond fide transferee of a bill of lading from vendor, 22. by one who has only an interest in a portion of the cargo, 23. not by an unauthorised agent, though act subsequently ratified, 24, 57. otherwise, if the act of a general agent, 26, 57. by a creditor, debt must he subsisting, though it may not have been ascertained, 27. may depend on the state of accounts between the parties, 27, 32, 162. a composition taken by the vendor for the price of goods un- delivered operates as an abandonment of the right, 28. vendor must be wholly or partially unpaid, 29. or paid by acceptances of the insolvent, though negotiated and proveable on his estate, 30. without tendering back the bill, 31. waived by election to take bill instead of cash less discount, 31. where goods sold on credit not expired, 31. where goods sold to sub-vendee, 32. not where payment made to the agent of the vendor, 32. depends upon these conditions : — vendor must be unpaid, 29. vendee must be insolvent, 34, 35, 228. vendee must not have indorsed over for value, 34, 151. consequences if wrongful, 36. effect of the vendee's bankruptcy, 40. effect of rejection of the goods by the vendee, 43, 122. on goods specially consigned, 109. on goods shipped upon condition, 111. effect of mutual credits, 27, 32, 162. IXDEX. 241 EXERCISE OF THE RIGRT— Continued. effect of pledge of bill of lading by way of security for advances, 163. indorsement of agent, 166. by agent, ITT. to partner, 171. special indorsement with condition, 173. FACTOR, exercise of the right by consignor against, 19. has no lien for a general balance unless goods in actual posses- sion, 20. indorsement of bill of lading to, 161, 163. formerly could not defeat the right of stoppage by indorsement and delivery of a bOl of lading as a pledge, 192. alteration of the law, 192. in possession of documents of title to property to be deemed the true owner thereof for the purpose of pledge or deposit, 193. fraudulent conduct of, how punished, 194, 205. pledgee from him must use reasonable caution, 195. must be in possession of, and entrusted with, the documents of title to make a valid pledge, 198. who is entrusted within the meaning of the Factors' Acts, 199. further alteration of the law, 201. exchanges of securities protected, 202. judicial construction, 203, 205. Factors' Acts apply only to mercantile transactions, 205. FRANCE, LAW OF, formerly in case of insolvency, was " Revendication," 4. old law rejected in Code de Commerce and the principles of this right substituted, 5. new provision to reimburse estate of insolvent vendee for advances made for freight, insurance, (fee, 6, 230. on assignment of bills of lading, 140. GIVING SAMPLES, to vendee, effect on sale to sub- vendee, 71, 127. 242 INDEX. HISTORY OF THE RIGHT, as part of the law of England, 9. HOLLAND, LAW OF, this right recognised by, ?. master of ship ordered to sign new bills of lading to the vendor on the insolvency of the vendee, 7. INDEMNITY, to shipmaster, on delivery of goods stopped, general purport of, 59. INDORSEMENT. (See Bill of Lading, DErEASAifCE of the Right, Delivery Okdee, Dook- Warrant, Factoe.) INTERPLEADER, BILL OF, on different claims by holders of bills of lading, shipmaster may protect himself from liability by fiUng, 114, 146. INSOLVENCY OF VENDEE, meaning of the term, 1. necessary to a valid exercise of the right, 34, 35, 228. may not be judicially declared, 38. effect of re-delivery of goods after, with consent of creditors, 48. before taking possession of the goods, entitles the vendor to retain them, 69. or to stop them, 93. effect of knowledge of, on transfer of bill of lading, 156. does not rescind the contract of sale, 209. INTEREST IN CARGO, one having such, may exercise the right, 22. LIEN, its origin, 2. distinguished from stoppage in transitu, 3. of original proprietor if goods in his possession, 11, 69. cannot be recovered by exercise of the right, if the vendor has parted with the possession of the goods, 19. INDEX. 243 liIEN" — Continued. ; of factor, 20. of vendor, reduced pro tanto by partial payment, 30. extended on insolvency of the vendee, 64. not destroyed by acceptance of warehouse rent by the vendor, T4. of carrier, effect on the transitus, 135, 13'r. of indorsee of bill of lading, 180. of consignee, 192. of consignor, 208. vendor's rights exceed, 218, 230. LAW, COURTS OF, right favoured and encouraged by, 3. in mercantile cases act on principles of equity, 13. MARKING GOODS, a destination to the use of the vendee, 3. effect of, TO, 127. in possession of a warehousepaan or wharfinger, 79, 87. MEASURING GOODS, in possession of vendor, effect on delivery, 72. in possession of wharfinger, effect on delivery, 87, 89. after sale to sub- vendee, 91. effect on delivery order, 128. MERCHANT LAW, right part of, 4, 8. founded on principles of equity, 13. MODE OF EXERCISE. no instance by bill in equity, 49. by act showing intention of vendor to countermand delivery, 50. by obtaining from shipmaster biUs of lading to order of vendor, 50. by taking possession of the goods, while in the hands of a middleman, 51. but actual possession is not necessary, 53. by notice to the carrier, who has the immediate ctistody of the goods, 51, 54. R 2 244 INDEX. MODE OF ^XEROISE— Continued. provided such, notice reach the person able to control the possession in time to prevent delivery to the vendee, 55. shipowner bound on receiving such notice to do all he can to stop the delivery, 56. by entry of the goods at the Custom-house, 51. by a mere claim to the goods, before transit is ended, 52. even though the carrier should deliver them to vendee by mistake, 53. by an agent, 57. by petition under the Admiralty Court Act, 57, 59. corporal touch not necessary, 67. effect of indorsement of bill of lading to agent, 166. NATURE OF THE RIGHT, defined, 1. not unlimited, 1. distinguished from lien, 3. peculiar to one in the position of a vendor, 14. NOTICE, to carrier by vendor, right may be exercised by, 53. must be given to the person who has the immediate custody of the goods, 54. in reasonable time to prevent delivery to the vendee, 54. general purport of, ,68. to dock company not necessary to transfer of goods represented by a dock-warrant, 187. ORIGIN OP THE RIGHT, ascribed to the Roman law of retention, 2. PACKER, eflfeot of delivery of goods to, 114, 116, 120. PARTIAL DELIVERY, general rule, that it does not determine the right, 124. effect where intended to operate as delivery of the whole, 125, 126. INBEX. 245 PARTIAL DELIVERY— Ooniinwcd. determines the riglit as regards the part delivered, 125, 128. xmder entire contract without an intention to retain the rest is a delivery of the- whole, 127. PARTIAL PAYMENT, of vendor, does not take away the right, 29. only reduces vendor's equitable lien pro tanto, 30. acceptances proveable on vendee's estate amount only to, Su. PAYMENT, to agent of the vendor takes away the right, 32. of excise duty may be made a condition precedent to delivery, 129. of the goods may be made a condition precedent to the vesting of the property, 129. PLEDGE, of bill of lading defeats the right, 12, IST'. of dock-warrant defeats the right, 190. of documents of title by factor, 193. pledgee must use reasonable caution, 195. what kind of, is not protected by the Factors' Acts, 197. to be valid, factor must be not merely in. possession of, but also entrusted with the documents of title, 198. of dock- warrants for antecedent debt, 200. with notice of the agency, 201. Factors' Acts apply only to mercantile transactions by way of, 205. of delivery order, 206. POSSESSION OF VENDEE, delivery into actual, formerly supposed, 3. may be countermanded on his insolvency or bankruptcy, 11, 35. actual, terminates the transitus, 61. actual, as distinguished from constructive, 66, 123, 137. corporal touch not necessary to, 67, 124, 137. is not given or obtained without consent, 69. right to, passed by bond fide transfer of bill of lading, 95. as owner, necessary to the determination of the transitus, 122. during the voyage, effect of, 132. PREFERENCE VOLUNTARY, cannot be given by bankrupt vendee to vendor by returning goods, 47, 97. unless general consent of creditors be obtained, 48. 246 INDEX. PROCESS OF LAW, by foreign attachment against the goods does not defeat the right, 138. issuing out of the Court of Session in Scotland by arrestment of the goods on board ship at sea, does not re-vest the property in the vendor after assignment of bill of lading bond fide and for value, 150. PROPERTY, RIGHT OP, passing by sale, general rule of law, 2, 65. passing by delivery, rule of the civil law, 61. special in goods, held by bond fide transferree of bill of lading, 22, 158. of consignor parted with on indorsement and transmission of bUl of lading to consignee, 36, 152. not conveyed to vendee on delivery by mistake after notice to stop on the part of the vendor, 53. absolute, does not pass to the vendor on the completion of a contract, but only a qualifled and imperfect right, 64. until followed by delivery and possession, 65. of goods, as well as right to possession is passed by bond fide transfer of bUl of lading, 95, 152. but not by indorsement without consideration, 164. special, vested in agent by indorsement of bill of lading in order to stop delivery of goods, 166. of goods represented by dock- warrant, 185. on re-sale by vendor, 219. is not destroyed by mere default of vendee, 221. is defeasible on insolvency of vendee, 224. PURCHASER, (See Vendee.) bond fide without notice, if he receive documents of property, right not exercisable against him', 1, 33, 151, 185. although it would have remained in force as against the consignee, had the bill of lading not been indorsed, 34, 151. or indorsed upon condition. 111. if not bankrupt or insolvent, vendor has no right to stop delivery, 37, 208. RATIFICATION, of act of unauthorised agent is ineffectual after the transit is ended, 24, 5T. otherwise in case of act of general agent, 26, 57. INDEX. 247 EE-DELIVERY, of goods to vendor, after bankruptcy, constitutes a fraudulent preference, 47, 97. after insolvency, but before bankruptcy, with general consent of creditors, is good, 48. REJECTION OF GOODS, by insolvent vendee, effect of, 43. by solvent vendee, if he should afterwards become insolvent, 44. power of, 45, 122. REMOVING GOODS, for the purpose of being delivered is a destination to the use of the vendee, 4, 72. RE- SALE, power of, by the vendor, 218. does not render the vendor liable to trover on default of the vendee, 222. but does after default has ceased by tender, 223. difference of price on, 225. measure of damages on, 227. claim against vendee's estate on, 229. RESCISSION OF CONTRACT, may take place by consent of parties, till executed, 44, 207. but not after bankruptcy without consent of assignees, 48, 209. whether stoppage effects a, 207, 230. not effected by default in performance on the part of the vendor, 211.- nor when part of the price has been paid, 212. RESTITUTION, Scotch law of, 8. abandoned in 1789, and the principles of this right substituted, 9. RETENTION, (,SeeLiBN.) common law right of, 2. of goods by the vendor for the price, 369. by carrier, 137. 248 INDEX. REVENDIOATION, a principle of French law, 4, rejected in the Code de Commerce, and the principles of this right substituted, 5. stoppage amounts to, 36. illustrative of the English law, 38. RISK, no criterion for exercise of the right, 37, 68. during the transit the goods are at the buyer's, 219. ROMAN LAW, {See Civil Law.) origin of lien, 2. transfer of property, 2. modification thereof by modern nations, 3. RUSSIA, LAW OF, Code of Mercantile and Navigation Laws, 6. this right recognised by, 7. SALE, CONTRACT OF, (See Contract.) civil law, 2. continental law, 2, 5. condition precedent implied in, 3. does not pass absolute property, 64. until followed by delivery and possession, 65. governing principles, 76. effect of stoppage on the, 207. effect of bankruptcy on the, 211. SCOTLAND, LAW OF, doctrine of Restitution, 8. abandoned in 1789, and the principles of this right substi- tuted, 9. process of arrestment of goods on board ship at sea, 150. SHIP, {See Bill ov Lading, Deliveet, &c.) of vendee, effect of delivery of goods into, 92. delivery is restrained by bills of lading being taken to vendor's order and assigns, 93. until indorsed to and presented by vendee, 95. INDEX. 249 SHIP — ConUnued. of consignee, delivery of goods into, 97. chartered by a consignee for a particular voyage, 99. for a term of years, 105. named by vendee, goods in, lOT. effect of taking receipt in name of vendor, 107. SHIPMASTER, (See Bill of Lading, Dbuvery.) delivery of goods in his possession may be countermanded on the consignee becoming insolvent, 10, 92. is bound to give effect to a claim of stoppage by the vendor, 34. if he grant new bills of lading to order of consignee, necessity for suing out legal process is obviated, 50. general purport of indemnity to, 59. his refusal to deliver to party entitled constitutes a breach of duty, which gives jurisdiction to the Admiralty Court, 60. acting directly under the orders of the vendee, effect of delivery to, 92. by signing bill of lading to vendor's order or assigns for goods in vendee's own ship restrains delivery, 93. until bill of lading indorsed to and presented by vendee, 95. his receipt for goods shipped, 107. effect of his refusal to grant receipt for goods shipped, 108. effect of his refusal to deliver, 113. may file a bill of interpleader, if bills of lading presented by two different holders, 114, 146. SHIP RECEIPT, (See Delivery.) if taken for the goods as shipped on account of the vendor, his right is preserved, 107. if required by the vendor, but not granted, a bill of lading granted to the vendee does not determine the right, 108. will not continue the right of the vendor, if delivery of the goods is otherwise complete, 109. doubtful whether negotiable, 191. STATUTES, 21 James 1, c. 19 (old bankrupt law), 69. 26 Geo. 3, c. 59, s. 4 (Excise Law), 52. 4 Geo. 4, c. 83 (Factors' Act), 192, 198 6 Geo. 4, c. 94 (Factors' Act), 192, 195, 200, 205. 7