1 Campbell,369, same case, Ab bott, 216. 3 Barnewall & Alderson, 277, Sargent v. Mor ris. And see 1 Lord Raymond, 271, Evans v. Marlett; 4 East, 211, Coxe v. Harden; 2 Bingh. 260, Morison v. Gray. See Abbott, p. already said on the subjects of liabilities, duties, and the upon the cargo Stoppage in Transitu. The subject of stoppage in transitu next claims our attention. It may be considered under three heads: 1. In what cases goods may be so stopped. 2. When goods shall be deemed to be in transitu. 3. How the right of the consignor to stop may be divested (d). This practice was originally sustained in the court of 364, with the Chancery, where a successful opposition was made to a Vernon, 203, the claims of the assignees. authorities; 2 Wiseman v. Vandeput: 1 Atkins, 245, Snee v. Prescott. 2 Jacob & Walker, 349, Goodhart, v. Lowe. But the same court would not allow an injunction to stop a ship from sailing on the ground of the vendee's insolvency, but left the seller to his remedy at law, and it seems that the court will not assume an original jurisdiction of stopping in transitu. But the common law seems to have been administered (d) This is Lord Tenterden's arrangement. See his book on shipping, p. 368. 1 East, 515, very cautiously at first in this matter. For where there was a delivery of goods on board of a ship in Russia, chartered by the consignee, the Court taking a distinction between a general and a chartered vessel, held, that this power existed though it sustained the right of the consignor to repossess himself of his property, under a Inglis v. UsherRussian ordinance only, and not by virtue of the law of England. But this diversity was given up in a subsequent case, it being held, that the delivery was not complete though made on board the vendee's chartered ship. The consignor is the original contractor, and by buying goods on his own credit, though they may be for other persons, he is in effect the vendor. So that if he charge the merchant consignee a commission-if again, such consignee accept bills drawn on him by his correspondent, the consignor, for the amount, the right of stopping still remains; for in the first place, here was nothing more than the first price with the commission added, and next, the acceptances proveable under the consignee's bankruptcy, were merely in part payment. wood. 3 East, 381, Bohtlingk v. In glis. 3 East, 93, Feise v. Wray; and see 6 East, 17. Fenton v. Pear An alien enemy with license is a consignor, endowed 15 East, 419. with a capacity to stop in transitu. But this act must be the deed of the consignor, and not of any person through whose hands the goods may pass. And it must be done adversely. Therefore where bills of lading came into the consignee's hands five days after he had committed an act of bankruptcy, the amount of the goods having been previously drawn for by a surety, and the consignee gave up the bills of lading to the surety's general agent, it was held, that neither the surety by his agent, nor the original consignor, who approved of this arrangement, could retain the property against the assignees of the consignee, for here was no stoppage by the consignor, nor even an adverse act on his part. Clearly, however, when the delivery by the consignor, son. 6 East, 371, Siffken, v. Wray. 1 Henry Black Abbott, p. 368. the master's duty is to yield up the cargo to this order, and it makes no difference that the consignee is particularly named in the bill of lading. stone, 365, n. 1 Bosanquet & Puller, 563, 3 East, 585, Walley v. Montgomery. Not unfrequently the delivery of a bill of lading is conditional, if so, the condition must be at an end before the consignor can revest the property. As where one made a consignment in trust to indemnify against acceptances, and became bankrupt without performing the agreement; it was held, that his assignees had no right to stop these goods, but that they belonged to the consignee under the condition. So again, where the consignor drew bills of exchange upon the vendee, and sent him the bill of lading, but afterwards resolved on having a ready money payment, and gave orders to stop the goods; the Court were of opinion that he could not do this, as the consignee was willing to have accepted the bills, and was not in a state of insolvency. "In the "law of England, as far as I can collect it," says Sir William Scott, "and in all books into which I have looked, "it is not an unlimited power that is vested in the con"signor, to vary the consignment at his pleasure in all "cases whatever. It is a privilege allowed to the seller, "for the particular purpose of protecting him against "the insolvency of the consignee. Certainly it is not "necessary that the person should be actually insolvent "at the time. If the insolvency happens before the ' arrival, it would be sufficient, I conceive, to justify "what has been done, and to entitle the shipper to the "benefit of his own provisional caution. 6 Robinson,326, son is not insolvent, the ground is not in the Constan But if the perlaid on which tia, Henrickson." alone such a privilege is founded." But where both the consignor and consignee had been accustomed to ship goods to each other mutually, though not specifically, in return, the agent of the former was held justified in stopping a shipment upon the refusal of the consignee to accept bills in respect of it. 7 Dowling & Ryland, 126, Wood v. Jones. And though the bills be accepted and indorsed over, the same power may be exercised upon the consignee's bankruptcy. And so it is, although part payment may have been made, for this act does not proceed on the ground of rescinding the contract, but is an equitable lien for the purposes of substantial justice. 3 East, 93, Feise see 3 Term Rep. v. Wray; and 119, Kinloch v. Craig. 440, Hodgson . 7 Term Rep. Loy. 1 East, 4, Sweet v. Pym. 3 Bosanquet & Puller, 42, Oppenheim v. Russell; Id. 119, RichardMaule & Selwyn, 350, Patten v. Thompson. 2 New Rep. 64, Butler v. Woolcott. son v. Goss; 5 car There must be a property in the party thus stopping in transitu, so that a fuller who suffered his lien upon cloths to lapse by delivering them up without payment for his labour, was not permitted to avail himself of this right upon the bankruptcy of his employer. With respect to lien, it is worthy of remark, that a consignor's right to stop in transitu is not controlled by it; a balance therefore due from the consignees to a carrier was considered to be no bar to the consignor's reclaiming his goods. Whilst on the other hand, a carrier has no power to retain goods against the consignee who has paid for them on the ground of a balance due from the consignor for riage (e). As soon as the delivery is complete, the goods cease Goods, when in to be in transitu. But several questions have arisen as to the exact time when the seller's countermandable power absolutely ceases. And the leading principle seems to be, that the property must come into the actual or constructive possession of the buyer to preclude further interference on the part of the consignor. So that as long as the consignment remains with the carrier, or wharfinger, or packer, even although these persons are cited; Ib.Hunter appointed by the consignee, the delivery is not fully complete. As long, again, as the ship is on her voyage, (e) In this case, it appeared, that it was the particular usage of the trade [butter dealers] for the consignor to pay the carriage. F transitu. Abbott, p. 374. 3 Term Rep. 466, Stokes v. La Riviere, v. Beale; 2 Bosanquet & Pul ler, 457, Mills v. Ball; 3 Term Rep. 467, Hunt v. Ward, cited. 1 Espinasse, 242, Holst v. Pownal. 394, Nix v. Olive. the goods are in transitu; and where the assignees of a bankrupt took possession of part of the consignment on board of a vessel which came into port without quarantine, but was instantly ordered out of port to perform it, it was held that they had no right to retain against the countermand of the consignor, although they had got the bill of lading, and although the stoppage took place during the quarantine; for the voyage was not concluded. Some wine, the duties not being paid, was lodged in the King's warehouse according to the Act (f), and sold at the end of three months: claims were made within that time by the assignees of the consignee, and by the con2 Espinasse, signor's agent after the first claim; but Lord Kenyon 613, Northey v. Field; Abbott, thought that the stoppage had been made in time, the wine being quasi in custodiâ legis. There must be an actual and absolute parting with the goods. A carrier having landed a part of twenty tons of iron on the vendee's wharf, discovered that he was insolvent, on which he reloaded it, and conveyed it to his own premises; it was held that a good stoppage in transitu might be made under these circumstances. Even if a carrier deliver goods by mistake, after a notice not to do so, the vendor's right to stop is not thereby destroyed. 1 Barnewall & 7 Taunton, 169, same case. But Where goods are in the care of a warehouseman, and upon an order from the seller they are to be given up to the vendee, unless some act is to be done prior to such delivery, the order is considered to be a transit. where something was to be done-as, for instance, where certain starch was to be weighed before delivery, and part of it was actually weighed and delivered, but before the remainder could be weighed the buyer became insolvent-it was held competent for the vendor to stop this residue. An order was given to deliver fifty tuns of oil, 18, Withers v. but inasmuch as the custom of the trade was for the Lys. 6 East, 614, Hanson v. Meyer; Holt's Nisi PriusCases, (ƒ) 26 G. 3. |