Formerly, indeed, it was holden, that the plaintiff must prove the words precisely as laid; but now it is sufficient to prove the substance of them. However, if the words be laid in the third person, e. g. he is a thief, proof of words spoken in the second person, e. g. you are a thief, will not support the declaration; for there is a great difference between words spoken in a passion to a man's face, and words spoken deliberately behind his back. In like manner a count for slanderous words spoken affirmatively cannot be supported by proof that they were spoken by way of interrogatory; as where the declaration stated that the defendant spoke these words, "he, the plaintiff, cannot pay his labourers;" and the evidence was, that the defendant had asked a witness" if he had heard that plaintiff could not pay his labourers." In an action for words of perjury, the plaintiff offered in evidence a bill of indictment, which had been preferred against him by the defendant, and which the grand jury returned ignoramus. This was holden to be admissible evidence, to shew the malicious intent with which the words were spokenf. If the declaration contain several actionable words, it is sufficient for plaintiff to prove some of them. Express malice need not be proved; if the charge be false, malice will be implied. Costs. By stat. 21 Jac. 1. c. 16. s. 6. "If the jury upon the trial of the issue, or the jury that shall inquire of the damages, assess the damages under forty shillings, then the plaintiff shall recover only so much costs as the damages so assessed amount unto." It is to be observed, that this statute does not extend to actions founded on special damage only, because, properly speaking, they are not actions for words, but for the special c Bull. N. P. 5. cites 2 Rol. Abr 718. d Avarillo v Rogers, London Sittings, Trin. 1773. B. R. Ld. Mansfield, C.J. cited by Buller in R v Berry, 4 T. R. 217 where the same doctrine was applied, and Buller J. said he had known a variety of nonsuits on the same objection; although there was a case in Strange e contra, and also a dictum of Lord Hardwicke, C. J. in Nelson v. Dixie, Ca. Temp. H. e Barnes v. Holloway, 8 T. R. 150. g Compagnon and Wife v. Martin, 2 Bl. damage. But where words are actionable in themselves', and special damage is laid in the declaration only by way of aggravation, although the special damage be proved, yet if the damages recovered are under 40s. there shall be no more costs than damages. If some of the counts in the declaration be for words that are actionable, and others for words not actionable, and special damage be laid referring to all the counts, and there be a general verdict for plaintiff, he is entitled to full costs, though he recover less than 40s. damages. In a case where the declaration embraced two distinct objects', viz. a charge for speaking words actionable in themselves, and a charge that defendant procured plaintiff to be indicted, without probable cause, for felony; it was holden that such an action, not being merely an action for words, but also an action on the case for a malicious prosecution, was not within the statute; and, therefore, although plaintiff recovered damages under 40s. yet he should be entitled to full costs. In cases within the statute, if damages are under 40s. plaintiff cannot have more costs taxed than the damages, notwithstanding defendant has justifiedTM. h Lowe v. Harewood, Sir W. Jones, 196. i Lord Raym. 1588. Burry v. Perry, 2 Str. 936. S. C. Turner v. Horton, Willes, 438. S. P. k Savile v. Jardine, 2 H. Bl. 531. Topsall v. Edwards, Cro. Car. 163. Blizard v. Barnes, Cro. Car. 307. m Halford v. Smith, 4 East, 567. S.P. CHAP. XXXVI. STOPPAGE IN TRANSITU. Nature of this Right-Who shall be considered as capable of exercising it—Where the Transitus may be said to be continuing-Where determined-How far the Negociation of the Bill of Lading may tend to defeat the Right. NATURE of the Right of stopping in Transitu.—When goods are consigned upon credit by one merchant to another, it frequently happens that the consignee becomes a bankrupt or insolvent, before the goods are delivered. In such case the law, deeming it unreasonable that the goods of one person should be applied to the payment of the debts of another, permits the consignor to resume the possession of his goods. This right, which the consignor has of resuming the possession of his goods, if the full price has not been paid, in the event of the insolvency of the consignee, is technically termed the right of stopping in transitu. The doctrine of stopping in transitu owes its origin to courts of equity, but it has since been adopted and established by a variety of decisions in courts of law, and is now regarded with favour as a right which those courts are always disposed to assist. The following cases will illustrate the nature of this right. B. at London, gave an order to A. at Liverpool to send him a quantity of goods. A. accordingly shipped the goods on board a ship there, whereof the defendant was master, who signed a bill of lading to deliver them in good condition to B. in London. The ship arrived in the Thames, but B. having become a bankrupt, the defendant was ordered, on behalf of A., not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared, by the plaintiff's witnesses, that no particular ship was mentioned, whereby the a Assignees of Burghall, bankrupt, v. Howard, London Sittings after Hil. T. 32 G. 2. coram Ld. Mansfield C. J. 1 H. Bl. 366. n. goods should be sent, in which case the shipper is to be at the risk of the perils of the seas. An action on the case upon the custom of the realm having been brought against the defendant as a carrier, Lord Mansfield was of opinion that the plaintiffs were not entitled to recover, and said, he had known it several times ruled in Chancery, that where the consignee becomes a bankrupt, and no part of the price has been paid, that 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 the laws of property. The plaintiff's were nonsuited. The right of stopping in transitu does not proceed on the ground of rescinding the contract, but, in the language of Lord Kenyon, it is an equitable lien adopted by the law, for the purposes of substantial justice. Hence the circumstance of the vendee having paid in part for the goods will not defeat the vendor's right of stopping them in transitu; the vendor has a right to retake them, unless the full price of the goods has been paid; and the only operation of a partial payment is to diminish the lien, pro tanto. The cases which have been decided on this subject may be arranged under the following divisions: 1st, who shall be considered as capable of exercising the right of stopping in transitu; 2dly, under what circumstances the transitus shall be considered as continuing; 3dly, when the transitus shall be considered as determined; and lastly, where the right of the vendor has been defeated by the negociation of the bill of lading. 1. Who shall be considered as capable of exercising the right of stopping in transitu.-As to the first division, I am aware of two cases only, in which the subject has been brought under the consideration of the court, viz. Feise v. Wray, 3 East, 93. and Siff'ken v. Wray, 6 East, 371. From these cases it may be collected, that if the party exercising the right stand in the relation of vendor, quoad the bankrupt or insolvent, it is sufficient; but that a mere surety, for the price of the goods, is not entitled to stop them in transitu. The case of Feise v. Wray was shortly this: B., a trader iu England, gave an order to C., his correspondent abroad, to purchase a quantity of goods for him. C. bought the goods accordingly of another merchant, (who was a stranger to B. and had not any account or correspondence with him) and b Hodgson v. Loy, 7 T. R. 440 re- c Feise v. Wray, 3 East, 02 cognised in Feise v. Wray, 3 East, 93. and post. shipped them on board a general ship, on the account and risk of B.; the bill of lading was filled up to the order of B. C. drew bills of exchange on B. for the price of the goods, including also a charge for commission. These bills were accepted, but not paid; for, before the goods arrived, B. became a bankrupt; whereupon C. authorised his agent in England to obtain possession of the goods on their arrival, which he did accordingly. An action of trover having been brought by the assignees of B., against the agent of C., to recover the value of the goods, it was contended, on the part of the plaintiff, that the right of stopping in transitu did not attach between B. and C.; that B. must be considered as the principal for whom the goods were originally purchased, and that C. was only his factor or agent, purchasing them on his account, and that the right of stopping in transitu did in point of law apply solely to the case of vendor and vendee; but per Lawrence J. "if that were so, it would nearly put an end to the application of that law in this country; for I believe it happens, for the most part, that orders come to the merchants here, from their correspondents abroad, to purchase and ship certain merchandise to them; the merchants here, upon the authority of those orders, obtain the goods from those whom they deal with; 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 was no privity between the original owner of the goods and the bankrupt; but the property may be considered as having been first purchased by C., and again sold to B. at the first price, with the addition of his commission upon it. He then became the vendor as to B., and consequently had a right to stop the goods in transitu, unless he is estopped by the circumstance of B. having accepted bills for the amount, which bills, it is contended, may be proved under B.'s commission, and are equivalent at least to part payment of the goods; but it was decided, in Hodgson v. Loy, 7 T. R. 440. 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, he has a lien on them till the whole price be paid, which cannot therefore be satisfied by shewing a part payment only. It is possible that part payment may be obtained by proving the bills under B.'s commission; but if the loss must fall on one side or the other, the maxim applies, "Qui |