828 consignee and the balance is uncertain 835 A right which arises on the insolvency of buyer. History is given by Lord Abinger . 829 Consignor who ships goods in pay ment of unmatured acceptances cannot stop in transitu on the insolvency of consignee - Quare? Vertue v. Jewell questioned Vendor's right of stoppage is para mount to the carrier's lien for general balance 835 835 830 830 836 830 . 831 . 831 SECTION II. AGAINST WHOM MAY IT BE EXERCISED? Persons possessing liens other than that of vendor not entitled to this remedy. Principal consigning goods may exercise right, even though factor has made advances on the goods or has a joint interest in them When agents without authority stop goods, subsequent ratification too late after transitus has ended. But not when letter of ratification was written before transit ended, although not reaching agent till after the transit had ended Vendor's right not impaired by par 834 ment . Consignor may stop goods although an account current is running with Goods may be stopped as long as they remain in possession of carrier quà carrier But delivery of goods to buyer's servant on his own cart or vessel puts an end to transit Vendor may restrain the effect of delivering goods on the buyer's own vessel by the terms of the bill of lading And it makes no difference whether 842 Section 842 844 the vessel was sent by the buyer expressly for the goods or not When a vessel chartered by the buyer is to be considered his own vessel. 843 Right does not extend to insurance money due to purchaser Before bill of lading taken vendor reserves his lien by taking ship's receipts for the goods in his own name, so as to entitle himself to the bill of lading. But not if the vessel were the purchaser's own vessel and nothing were contained in the receipts to show that vendor reserved his rights Goods are still in transit while lying in a warehouse if at an intermediate point in the transit. Test question for determining whether transit is ended 845 845 846 846 Buyer, on becoming insolvent, may agree to rescind the sale while the goods are still liable to stoppage 858 Or may refuse to take possession in order to leave them liable to stoppage SECTION IV. HOW IS THE RIGHT No particular mode of stoppage re The notice must be given to the per- 858 859 859 " 860 Or to the employer in time to enable him to send notice to his servant not to deliver 860 Vendor need not inform master of vessel that the bill of lading is still in possession of the buyer . . 861 Master's duty is to deliver goods to vendor, not simply to retain them till conflicting claims have been settled Master, as bailee, delivers at his peril, and if indemnity is refused, may file a bill of interpleader in equity. 861 Stoppage must be made in behalf of vendor in assertion of his paramount right to the goods SECTION V. HOW MAY IT BE Vendor's right defeasible only by transfer of bill of lading to bond fide indorsee for value. By common law, consignee could only But now, by factors acts, by 861 861 862 863 863 856 The transfer of the bill of lading is 856 Whether delivery of part amounts to delivery of the whole 857 bill of exchange now an assignment of the contract 863 Bill of lading not negotiable like a .864 This right exists only when buyer is insolvent. § 828. THE last remedy which an unpaid vendor has against the goods is stoppage in transitu. This is a right which arises solely upon the insolvency of the buyer, and is based on the plain reason of justice and equity that one man's goods shall not be applied to the payment of another man's debts. (a) If, therefore, after the vendor has delivered the goods out of his own possession, and put them in the hands of a carrier for delivery to the buyer (b) (which, as we have seen in the preceding chapter, is such a constructive delivery as divests the vendor's lien) — he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to other people. (b1) § 829. The history of the law of stoppage in transitu is given (a) Per Lord Northington C. in D'Aquila v. Lambert, 2 Eden, 77. [The right of the vendor to stop in transitu is, in its nature, adverse to the purchaser. Abbott Ship. (6th Am. ed.) 514; Naylor v. Dennie, 8 Pick. 198. And the doctrine on that subject does not apply to a case where the vendor and purchaser are agreed that the property shall be reclaimed; for it is then a question of rescission or reconveyance. Ash v. Put nam, 1 Hill (N. Y.), 302. See post, § 858, note.] (b) ["Stoppage in transitu can only take place where there is a vendor, vendee, and a middleman, such as a carrier. If the goods come into the actual or constructive possession of the vendee, the vendor's right over them is gone." Cooper v. Bill, 3 H. & C. 722, 727.] (b) [See Keeler v. Goodwin, 111 Mass. 490, 492.] History given by Lord Ab inger. very fully by Lord Abinger, in Gibson v. Carruthers, (c) to which the reader is referred. It now prevails almost universally among commercial nations, and may best be considered by dividing the inquiry into the following sections: 1. Who may exercise the right? 2. Against whom may it be exercised? 3. When does the transit begin? When does it end? 4. How is the vendor to exercise the right? 5. How may the right be defeated when the goods are represented by a bill of lading? 6. What is the legal effect of the exercise of the right? consignors, &c. may stop. Consignor who has bought with his own money or credit. SECTION I. WHO MAY EXERCISE THE RIGHT? § 830. Stoppage in transitu is so highly favored, on account of Persons in its intrinsic justice, that it has been extended by the position similar to courts to quasi-vendors: to persons in a position similar vendors, as to that of vendors. In Feise v. Wray (d) Lord Ellenborough and the other judges of the king's bench held the right to exist in favor of a consignor who had bought goods, on account and by order of his principal, on the factor's own credit, in a foreign port, and had shipped the goods to London, drawing bills on the merchant here, who had ordered the goods and become bankrupt during the transit. The bankrupt's assignee contended that the factor was but an agent with a lien; but the court held that he might be considered as a vendor who had first bought the goods, and then sold them to his correspondent at cost, plus his commission. The principle of this case has been recognized in numer ous subsequent decisions. (e) The transfer of the bill of lading by the vendor to his agent vests a sufficient special property in the latter to entitle him to stop in transitu in his own name. This was held to be the law, even before the bills of lading act. (f) Agent of vendor to whom the latter has indorsed the bill of lading may stop in his own name. (c) 8 M. & W. 337. (d) 3 East, 93. (e) The Tigress, 32 L. J. Adm. 97; Patten v. Thompson, 5 M. & S. 350; Ogle v. Atkinson, 5 Taunt. 759; Oakford v. Drake, 2 F. & F. 493; Tucker v. Humphrey, 4 Bing. 516; Turner v. Trustees Liverpool Dock Company, 6 Ex. 543; 20 L. J. Ex. 393; Ellershaw v. Magniac, 6 Ex. 570; [Newhall v. Vargas, 13 Maine, 93, 103; Seymour v. Newton, 105 Mass. 272, 275.] (f) Morison v. Gray, 2 Bing. 260; [Sword v. Carruthers, 7 U. C. Q. B. 313. See Seymour v. Newton, 105 Mass. 272; Newhall v. Vargas, 13 Maine, 93, 103. The right of stoppage may be exercised by a person who pays the price of the goods for the purchaser and takes from him an assignment of the bill of lading as security for such advances. Gossler r. Schepeler, 5 Daly (N. Y.), 476.] Vendor of an interest in an exec utory constop the tract may goods. Jenkyns v. § 831. The vendor of an interest in an executory agreement may also stop the goods, as if he were owner of them. In Jenkyns v. Usborne (g) the plaintiff was agent of a foreign house, which had shipped a cargo of beans to London; a portion of the cargo had been ordered by Hunter & Co. of London, but only one bill of lading had been taken for the whole cargo, and this was given Usborne. to Hunter & Co., they giving to the plaintiff a letter, acknowledging that 1,442 sacks of the beans were his property, together with a delivery order, addressed to the master of the vessel, requesting him to deliver to bearer 1,442 sacks out of the cargo on board. Before the arrival of the vessel, plaintiff sold these 1,442 sacks, on credit, to one Thomas, giving him the letter and delivery order of Hunter & Co. Thomas obtained an advance from the defendant on this delivery order and letter, together with other securities. Thomas stopped payment before the arrival of the vessel, and before paying for the goods, and the plaintiff gave notice to the master, on the arrival of the goods, not to deliver them. Held, that although at the time of the stoppage the property in the 1,442 sacks had not vested in the plaintiff, but only the right to take them after being separated from the portion of the cargo belonging to Hunter & Co., yet the interest of the plaintiff in the goods was sufficient to entitle him to exercise the vendor's rights of stoppage. It was said by Lord Ellenborough, in Siffken v. Wray, (h) that a mere surety for the buyer had no right to stop in transitu: but if a surety for an insolvent buyer should pay the vendor, it would seem that he would now have the right of stoppage in transitu, if not in his own name, at all events in the name of the vendor, by virtue of the provisions of the 5th section of the mercantile law amendment act (19 & 20 Vict. c. 97), which provides that "every person, who being surety for the debt or duty of another, or being liable with another for any debt or duty, shall pay such debt or perform such duty, shall be entitled to have assigned to him or to a trustee for him, every judgment, specialty, or other security which shall be held by the creditor in respect of such debt or duty, whether such judgment, specialty, or other security shall or shall not be deemed at law to have been satisfied by the payment of the debt or performance of the duty, and such person shall be (h) 6 East, 371. (g) 7 M. & G. 678; 8 Scott N. R. 505. May surety exercise the right? |