to deliver; that the transitus was at an end; and the right of stoppage gone. Right of stoppage after ardestination continues rival at until vendee takes § 856. Of course the mere arrival of the goods at destination will not suffice to defeat the vendor's rights. The vendee must take actual, if he has not obtained constructive, possession. (2) What will amount to taking actual possession is a question in relation to which much of the law already referred to, in connection with actual receipt, under the statute of frauds, (a) and delivery suf- possession. ficient to divest lien, (b) will be found applicable. In Whitehead v. Anderson (c) it was held, as we have seen, that going What is such poson board the vessel and touching the timber was not session. taking it into possession; and per Cur.: "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 keep and assented to keep the goods in the nature of an agent for custody." Crawshay In Crawshay v. Eades (d) the carrier having reached the v. Eades. consignee's premises began unloading, and put a part of the goods on his wharf, but hearing that the consignee had absconded and was bankrupt, took them back again on board the barge; and it was held that the right of stoppage remained, and that there had been no delivery of any part of the goods. Delivery of delivery of the whole part is not § 857. Whether delivery of part, when not retracted under the peculiar circumstances shown in Crawshay v. Eades, amounts to delivery of the whole, is always a question of intention, as shown ante, §§ 805 et seq., where the cases mentioned in the note (e) have been reviewed; and the general rule was there deduced, that a delivery intended. (*) [See Buckley v. Furniss, 15 Wend. 137; Sawyer v. Joslin, 20 Vt. 172; Hays v. Mouille, 14 Penn. St. 48; Naylor v. Dennie, Pick. 198; Allen v. Mercier, 1 Ash. 103; Aguirre v. Parmelee, 22 Conn. 473; Levy v. Turnbull, 1 Low. Can. 21. The fact that the goods have arrived at the place of destination, where the purchaser has been in the habit of receiving merchandise sent to him, does not consti unless it be shown that it was so tute delivery to him in any particular case. (e) Dixon v. Yates, 5 B. & A. 313; Betts v. Gibbins, 2 Ad. & E. 73; Tanner v. Scovell, 14 M. & W. 28; Slubey v. Heyward, 2 H. Bl. 504; Hammond v. of part is not a delivery of the whole, unless the circumstances show that it was intended so to operate. Delivery into the possession even after his bank ruptcy, or his assign ees, ends tus. § 858. The bankruptcy of the buyer not being in law a rescission of the contract, and the assignees being vested with all his rights, the delivery of the goods into the buyer's of a buyer, warehouse after his bankruptcy, or an actual possession of them taken by his assignees, will suffice to put an into that of end to the transitus, and to determine the right of stoppage. (g) Where the buyer has become insolvent after the transi- his purchase, he has a right to rescind the contract, with the assent of his vendor, while the goods are still liable to stoppage; and then the subsequent delivery of the goods into the buyer's possession cannot affect the vendor's rights, because the property in the goods will not be in the buyer or he may refuse to take possession and thus leave unimpaired the right of stoppage in of stoppage transitu, unless the vendor be anticipated in getting will remain possession by the assignees of the buyer. (h) The subpaired. ject has been considered ante, §§ 498-501, where the Buyer on becoming insolvent may re scind the contract, or refuse to receive possession, and ven dor's right unim cases are referred to. Anderson, 1 B. & P. N. R. 69; Bunney v. Poyntz, 4 B. & Ad. 568; Simmons v. Swift, 5 B. & C. 857; Miles v. Gorton, 2 C. & M. 504; Jones v. Jones, 8 M. & W. 431; Wentworth v. Outhwaite, 10 M. & W. 436; [Buckley v. Furniss, 17 Wend. 504; Burr v. Wilson, 13 U. C. Q. B. 478. In Ex parte Falk, 28 Weekly Rep. 785, Bramwell L. J. said: “I cannot understand the case of Slubey v. Heyward, because it appears that there the sub purchaser had paid for the goods, and on what ground there could be a stoppage in transitu as against him I am at a loss to see. The note of the case is a very loose one. The court seems to have held that which, with great submission, appears to me a very doubtful proposition that the carrier's duty had come to an end. As to Hammond v. Anderson, there is not a word in the judgments to show that the delivery of part of the cargo is a constructive delivery of the whole. What the court said was this: 'On a former occasion the court decided that when a part of the goods sold by an entire contract was taken possession of, the vendee has taken possession of the whole.'"] (9) Ellis v. Hunt, 3 T. R. 467; Tooke v. Hollingworth, 5 T. R. 215; Scott v. Pettit, 3 B. & P. 469; Inglis v. Usherwood, 1 East, 515. [So if the purchaser dies before the goods arrive, and afterwards they arrive, and are taken possession of by his administrator, the estate being insolvent, the transit is determined, and no right of stoppage exists. Conyers v. Ennis, 2 Mason, 236.] insolvent vendee to (h) [Don v. Law, 12 U. C. C. P. 460. So, where the consignee or purchaser has the right to reject the goods Right of forwarded, should they on arrival and examination prove reject the unsatisfactory, and a bill of goods. sale thereof is sent by mail and received by him, but before he knows of their arrival, or pays the price or the freight thereon, ascertaining that he is insolvent, he executes a bill of sale thereof to the vendor and delivers it to a third person SECTION IV. - HOW IS THE RIGHT EXERCISED? lar mode of required. The usual mode is a simple no tice to carding de rier forbid livery to § 859. No particular form or mode of stoppage has been held necessary in any case; and Lord Hardwicke once said No particuthat the vendor was so much favored in exercising it as stoppage to be justifiable in getting his goods back by any means not criminal, before they reached the possession of an insolvent vendee. (i) All that is required is some act or declaration of the vendor countermanding delivery. (1) The usual mode is a simple notice to the carrier, stating the vendor's claim, forbidding delivery to the vendee, or requiring that the goods shall be held subject to the vendor's orders. (k) In Litt v. Cowley, () where notice had been given to the carrier not to deliver the Cowley. goods to the vendee, the carrier's clerk made a mistake, and delivered the package to the buyer, who opened it and sold part of the contents; and then became bankrupt. The assignees claimed to hold the goods, but were unsuccessful. Gibbs C. J. in delivering judgment said: "It was formerly held that unless the vendor recovered back actual possession of the goods by a corporeal seizure of them, he could not exercise his right of stoppage in for him; this operates as a stoppage in transitu, or a refusal to complete the contract of sale. In Grout v. Hill, 4 Gray, 361, Shaw C. J. said: "It was very early held, that where the consignee, being a purchaser of goods on credit, finds that he shall not be able to pay for them, and gives notice thereof to the vendor, and leaves the goods in possession of any person, when they arrive, for the use of the vendor, and the vendor, on such notice, expressly or tacitly assents to it, it is a good stoppage in transitu, although the bankruptcy of the consignee intervene; and the goods revest in the consignor. Atkin v. Barwick, 1 Stra. 165. This was approved and confirmed in the case of Salte v. Field, 5 T. R. 211. The same principle was adopted in this commonwealth, though the facts led to a different result in Lane v. Jackson, 5 Mass. 157." See ante, § 500, and cases in note (e). The assent of the vendor to the rescission of the contract is sufficient, in such case, vendee. Litt v. (k) [See Reynolds v. Boston & Maine Railroad, 43 N. H. 591; Bell v. Moss, 5 Whart. 189; Newhall v. Vargas, 13 Me. 93, 109; Mottram v. Heyer, 5 Denio, 629; Seymour v. Newton, 105 Mass. 272, 275; Rucker v. Donovan, 13 Kan. 251; Ascher v. Grand Trunk Ry. Co. 36 U. C. Q. B. 609.] (4) 7 Taunt. 169; 2 Marsh. 457. v. Inglis. transitu. Latterly it has been held that notice to the carrier is sufficient; and that if he deliver the goods after such notice, he is liable. That doctrine cannot be controverted, and is supported by all the modern decisions. In the present case, the plaintiff gave notice to the carriers at the place whence the boat sailed, and it would be monstrous to say that after such notice a transfer made by their mistake should be such as to bind the plaintiffs, and to vest a complete title in the bankrupts and their representatives. .. As soon as the notice was given, the property returned to the plaintiffs, and they were entitled to maintain trover, not only against the carriers, but against the assignees of the bankrupts, or any other person." So far as the dictum is concerned, that the effect of the stoppage was to revest the property, the law is now otherwise; (m) but that it revests the possession, Bohtlingk so as to restore to the vendor his lien, is undoubted. In Bohtlingk v. Inglis (n) a demand for the goods made by the vendor's agent on the master of the ship was held a sufficient stoppage and in Ex parte Walker & Woodbridge (0) Walker & it was decided that an entry of the goods at the custom house by the vendor, on the arrival of the vessel, in order to pay the duties, was a valid stoppage, as against the assignees of the bankrupt purchaser, who afterwards got forcible possession of the goods when landed. In Northey v. Field. Field, (p) wine bought by the bankrupt was landed from the vessel and put in the king's cellars, according to the excise law, where it was to remain until the owner paid duty and charges; but if not paid within three months, then to be sold, and the excess of the proceeds, after payment of duty and charges, to be paid to the owner. The assignees petitioned to have the wine, and it was also claimed by the vendor's agent while in the king's cellar, but it was sold at the end of the three months under the law. Lord Kenyon held that the claim made by the vendor was a good stoppage in transitu, the wine being quasi in custodia legis. (q) Ex parte Wood bridge. Northey v. (m) Post, sec. V. (n) 3 East, 397. (0) Cited in Cooke's Bankrupt Law 402. 439; [Mottram v. Heyer, 5 Denio, 629; Goods still house. (p) 2 Esp. 613; [Burr v. Wilson, 13 U. C. Q. B. 478; Howell v. Alport, 12 U. C. C. P. 375.] (q) See Nix v. Olive, Abbott on Ship. goods not having been entered by reason cases as to go in custom stoppage entry of house on in transitu. Howell v. § 859 a. [In Howell v. Alport (q1) Alport bought goods consisting of teas and tobacco of Howell and Company of New Canadian York. The goods were shipped to Belleville and landed effect of on the 21st of November at a wharf, where one Martin, acting as wharfinger, had charge of them; he paid the freight, which Alport repaid him. The goods being subject to duties were carried by defendant's team to the bonded warehouse and were bonded by the defendant. Alport. The warehouse was a part of the defendant's premises. It was a room the entrance to which was by a door opening from a room in which the defendant carried on his own business. On this door there were two locks, the key to one being kept by the defendant, the key to the other by the customs officer. Both keys were necessary to open the door. While the goods were in this warehouse the defendant sold part of them, and by permission of the messenger of customs, who unlocked the customs lock, he marked the goods thus sold. But the duty was not paid on any of the goods. On the 22d day of December the defendant became insolvent, and on the following day the plaintiffs notified the customs officer that they claimed the goods. On an interpleader, it was held that the plaintiffs had not lost the right to stop the goods. In Wiley v. Smith (92) the facts were as fol- Wiley lows: The defendant was the assignee of the estate of Smith. E. Bendelari & Co. The plaintiff, of New York, sold to Bendelari & Co. 250 barrels of currants on time. The currants were sent from New York by rail on the 7th of January, 1876, at the risk of Bendelari & Co. A bill of lading was duly received by Bendelari & Co., the goods arrived on the 12th of January, and the freight was paid by Bendelari & Co., who also gave acceptances to the plaintiff for the price, which were payable thirty days from the date thereof. When the goods arrived at Toronto, the place of business of Bendelari & Co., they bonded the same. of the loss of the invoice. Donath v. Broomhead, 7 Penn. St. 301. The mere entry of goods without payment of duties is not a termination of the transit. Mottram v. Heyer, 5 Denio, 629; S. C. 1 Ib. 483. In re Bearns, 18 Bank. Reg. 500; Burnham v. Winsor, 5 Law Rep. 507; Northey v. Field, 2 Esp. 613. But where the vendor had goods on board ship which v. he sold on four months' credit, and took (q1 [12 U. C. C. P. 375.] |