hands they may have passed through if they have not reached their destination.1 (2) The term does not necessarily imply that the goods are in motion, for, "If the goods are deposited with one who holds them merely as an agent to forward and has the custody as such, they are as much in transitu as if they were actually moving." 2

"2

"The essence of stoppage in transitu," says Lord Cairns, "is that the goods should be in the possession of a middleman." 3

Lord Esher, to a great extent adopting Lord Tenterden's definition of the term transitus, suggests the following proposition:-" Goods are deemed to be in transitu not only while they remain in the possession of the carrier, whether by water or land, and although such carrier may have been named and appointed by the consignee; but also when they are in any place of deposit connected with the transmission and delivery of them, having been there deposited by the person who is carrying them for the purposes of transmission and delivery until they arrive at the actual possession of the consignee or at the possession of his agent, who is to hold them at his disposal and deal with them accordingly." Mr. Justice R. S. Wright defines the term transitus, by stating that goods are in transitu “at any time before the goods have reached the possession of the vendee or of the vendee's servant, and whilst they are still in the possession of a carrier or other person, as an intermediary, who has not yet by attornment, usage, or otherwise, agreed to hold them exclusively for the vendee." 5

"4

When goods, which have been sold, are in the actual possession of a carrier or other bailee, three states of fact may exist with regard to them :-First, the carrier or other bailee may hold them as agent for the seller; in that case the seller preserves his lien, and the right of stoppage in transitu does not arise. Secondly, the goods may be in medio. The carrier or other bailee may hold them in his character as such, and not exclusively as the agent of either the seller or buyer. In that case the right of stoppage in transitu exists. Thirdly, the carrier or other bailee may hold the goods either originally or by subsequent attornment, solely as agent for the buyer. In that case

1 Bethell v. Clark (1888), 20 Q. B. D., at p. 619, per Fry, L. J., approved; Lyons v. Hoffnung (1890), 15 App. Cas. 391, P. C.

2 Blackburn on Sale, p. 244.

3 Schotsman v. Lanc. & Yorks. Railway (1867), L. R. 2 Ch. App., at p. 338.

4 Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D. 356, at p. 364, C. A.; cf. Albot on Shipping, 12th ed., p. 409.

5 Pollock and Wright on Possession, p. 214.

Sect 44.

Sect. 44.

Duration

of transit.

there either has been no right of stoppage or it is determined. The difficulties that arise are rather difficulties of fact than of law.

45.-(1.) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee [or custodier], for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee [or custodier].1

(2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end.2

(3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee [or custodier]

For principle, see Bolton v. Lanc. & Yorks. Railway (1866), L. R. 1 C.P., at p. 439, per Willes, J. For illustrations see Whitehead v. Anderson (1842), 9 M. & W. 518 (promise by captain to deliver when satisfied as to freight, transit not ended); Dodson v. Wentworth (1842), 4 M. & Gr. 1080 (goods delivered by carrier to warehouse to await orders, transit ended); Valpy v. Gibson (1847), 4 C. B. 837 (goods delivered to shipping agent of buyer, transit ended); Schotsmans v. Lanc. & Yorks. Railway (1867), L. R. 2 Ch. App. 332 (goods delivered to general ship owned by buyer, transit ended); Coventry v. Gladstone (1868), L. R. 6 Eq. 44 (overside orders given by mate to holder of bill of lading, transit not ended); Ex p. Gibbes (1875), 1 Ch. D. 101 (goods shipped to Liverpool and then put on railway for buyer, transit ended); Ex p. Watson (1877), 5 Ch. D. 35 (ineffectual interruption of transit); Ex p. Barrow (1877), 6 Ch. D. 783 (goods warehoused by carrier as forwarding agent, transit not ended) (?); Ex p. Rosevear China Clay Co. (1879), 11 Ch. D. 560 (goods shipped on ship hired by buyer, destination not stated, transit not ended); Kemp v. Falk (1882), 7 App. Cas. 573, see at p. 584 (goods on ship, cash receipts instead of delivery orders given to buyer, transit not ended); Ex p. Francis (1887), 4 Morrell, 146 (goods shipped in vessel of buyer's agent, transit ended); Bethell v. Clark (1888), 20 Q. B. D. 615 C. A. (goods ordered to be delivered to the "Darling Downs" to Melbourne, transit not ended by shipment); followed Lyons v. Hoffnung (1890), 15 App. Cas. 391 P. C.; Ex p. Hughes (1892), 4 Morrell 294 (break in transit).

2 Whitehead v. Anderson (1842), 9 M. & W. 518, at p. 534; Blackburn on Sale, p. 249; cf. Lond. & N. W. Railway v. Bartlett (1861), 31 L. J. Ex. 92 (alteration of journey by agreement between carrier and consignee); see, too, dictum of Bowen, L. J., in Kendal v. Marshall, Stevens & Co. (1883), 11 Q. B. D., at p. 369.

acknowledges to the buyer, or his agent, that he holds Sect. 45. the goods on his behalf, and continues in possession of them as bailee [or custodier] for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.1

(4.) If the goods are rejected by the buyer, and the carrier or other bailee [or custodier] continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.2

(5.) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer.3

(6.) Where the carrier or other bailee [or custodier] wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end.4

(7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to

1 For principle, see Kendal v. Marshal, Stevens & Co. (1883), 11 Q. B. D. 356 C. A., where the carrier attorned to buyer's agent. In illustration, see Dixon v. Baldwen (1804), 5 East. 175; Valpy v. Gibson (1847), 4 C. B. 865, where a re-delivery to seller for special purpose did not revive right of stoppage; Ex p. Miles (1885), 15 Q. B. D. 39 C. A.

2 Bolton v. Lanc. & Yorks. Railway (1866), L. R. 1 C. P. 431; cf. James v. Griffin (1837), 2 M. & W. 623.

3 Berndtson v. Strang (1867), L. R. 4 Eq. 481, at p. 489; on appeal L. R. 3 Ch. App., at p. 590, per Lord Cairns (the test is whether the master is the servant of the owner or the charterer); Ex p. Rosevear China Clay Co. (1879), 11 Ch. D. 560, C. A. (ship hired verbally); cf. Schotsmans v. Lanc. & Yorks. Railway (1867), 2 Ch. App. 332 (general ship owned by buyer, transit ended).

1 Bird v. Brown (1850), 4 Exch. 786, at p. 790 (where carrier refused to deliver in consequence of an invalid notice to stop).

Sect. 45.

Destination.

Termination of transit.

show an agreement to give up possession of the whole of the goods.1

The term "custodier "is the Scotch equivalent of "bailee." As the right of stoppage in transitu arises by implication of law (sect. 39), it follows that it may be waived by the seller under the provisions of sect. 55, post, p. 108.

As regards the term "destination," Lord Esher says that "it means sending the goods to a particular place to a particular person who is to receive them, and not sending them to a particular place without saying to whom; "2 and Lord Fitzgerald says, "Transit embraces not only the carriage of the goods to the place where delivery is to be made, but also delivery of the goods there according to the terms of the contract of conveyance.'

Where the attornment of the carrier is relied on, that attornment must be founded on mutual assent. If the carrier do not assent to hold the goods for the buyer, or if the buyer do not assent to his so holding them, there is no attornment.4

The fact that the freight is unpaid is strong, though not conclusive evidence that the carrier is in possession of the goods, as such, and not as the buyer's agent.5

A neat summary of the law as to the termination of the transit is given by Cave, J., who says, "When the goods have arrived at their destination, and have been delivered to the purchaser or his agent, or where the carrier holds them as warehouseman for the purchaser, and no longer as carrier only, the transitus is at an end. The destination may be fixed by the contract of sale, or by directions given by the purchaser to the vendor. But, however fixed, the goods have arrived at their destination, and the transit is at an end when they have got into the hands of some one who holds them for the purchaser and for some other purpose than that of merely carrying them to the destination fixed by the contract or by the directions given by the purchaser

1 Bolton v. Lanc. and Yorks. Railway (1866), L. R. 1 C. P., at p. 440, per Willes, J.; Ex p. Cooper (1879), 11 Ch. D. 68 C. A.; Kemp v. Falk (1882), 7 App. Cas., at p. 586, per Lord Blackburn; cf. sect. 42, ante, p. 80, as to seller's lien.

2 Ex p. Miles (1885), 15 Q. B. D. 39, at p. 43 C. A.

3 Kemp v. Falk (1882), 7 App. Cas., at p. 588.

4 See James v. Griffin (1837), 2 M. & W. 623 (offer to attorn not accepted by buyer); Kemp v. Falk (1882), 7 App. Cas., at pp. 584, 586 (carrier not agreeing to change his character). See also Blackburn on Sale, p. 248. 5 Kemp v. Falk (1882), 7 App. Cas., at p. 581.

to the vendor. The difficulty in each case lies in applying these principles." 1

Sect. 45.

How stoptransitu is

in page

46.—(1.) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the effected. carrier or other bailee [or custodier] in whose possession the goods are. Such notice may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.1

(2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee [or custodier] in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller.

"The law is clearly settled," says Parke, B., "that the unpaid vendor has a right to retake the goods before they have arrived at the destination originally contemplated by the purchaser, unless in the mean time they have come into the actual or constructive possession of the vendee. If the vendee take them out of the possession of the carriers into his own before their arrival, 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."6

1 Bethell v. Clark (1887), 19 Q. B. D. 553, at p. 561; affirmed by C. A., 20 Q. B. D. 615.

2 Snee v. Prescot (1743), 1 Atk. 245, at p. 250, per Ld. Hardwicke ; Whitehead v. Anderson (1842), 9 M. & W., at p. 534, per Parke, B.

3 Litt v. Cowley (1816), 7 Taunt. 169, at p. 170, per Gibbs, C.J.

↑ Whitehead v. Anderson (1842), 9 M. & W. 518; Ex p. Watson (1877), 5 Ch. D. 35 C. A.; Kemp v. Falk (1882), 7 App. Cas., at p. 585; cf. Phelps v. Comber (1885), 29 Ch. D. 813 C. A. (notice to consignee to hold proceeds ineffectual).

5 The Tigress (1863), 32 L. J. Adm. 97, at p. 102.

6 Whitehead v. Anderson (1842), 9 M. & W., at p. 534.