true that their lien was suspended as long as the bills were running, but it revived as soon as they were dishonoured."

(b.) In case of the insolvency of the buyer, a right of stopping the goods in transitu after he has parted with the possession of them;

(c.) A right of re-sale as limited by this Act.

(b.) parted with the possession. "If the goods are actually delivered to an agent of the vendee employed by him to receive delivery, the vendor is divested of his right of stoppage in transitu." Per Lord Chelmsford, L.C., in Schotsmans v. Lanc. & York. Ry. Co.1 (buyer's ship used as general trader). So where goods were shipped on board a vessel belonging to the purchaser, but employed as a general trader, and the bills of lading made the goods deliverable to the purchaser or assigns, the "transit" ended on shipment. ibid.

(c.) re-sale. See section 48. If before actual delivery the vendor re-sells the property while the purchaser is in default, the re-sale will not authorise the latter to consider the contract rescinded so as to entitle him to recover back any deposit of price, or to resist paying any balance which may be still due: Page v. Cowasjee 2 (ship retaken from buyer and re-sold).

(2.) Where the property in goods has not passed to the buyer, the unpaid seller has, in addition to his other remedies, a right of withholding delivery similar to and co-extensive with his rights of lien

1 L. R. 2 Ch. 332, 335; 36 L. J. Ch. 361; 16 L. T. 189; 15 W. R. 537. [1867.]

2 L. R. 1 P. C. 145; 3 Moo. P. C. N. S. 499; 12 Jur. N. S. 361; 14 L. T. 176. [1866.]

and stoppage in transitu, where the property has passed to the buyer.

has not passed.-As to when the property passes, see sections 17 and 18, supra.

right of withholding delivery.—I.e. the buyer cannot maintain trover either against the seller, or against a third person who has wrongfully removed the goods (Lord v. Price1), because he has not the right of property and right of possession. See the judgment of Bayley, J., in Bloxam v. Saunders 2 (eight pockets of hops). If the buyer cannot maintain trover even when the property has passed, à fortiori he cannot do so where the property has not passed.

by seller in

40.-In Scotland a seller of goods may attach Attachment the same while in his own hands or possession by Scotland. arrestment or poinding; and such arrestment or poinding shall have the same operation and effect in a competition or otherwise as an arrestment or poinding by a third party.

Arrestment is the diligence whereby the debtor in a moveable debt or obligation is interpelled from making payment or delivery to his creditor until the debt due to the arrester by the arrestee's creditor is paid or secured. Bell's "Dictionary of the Law of Scotland."

Poinding is the Scotch law diligence whereby the property of the debtor's moveables is transferred to the creditor using the diligence; it is real or personal; a third kind corresponds to distress damage feasant. ibid.

Competition. The term is most frequently applied to those contests which arise on bankruptcy between

1 L. R. 9 Ex. 54; 43 L. J. Ex. 49; 30 L. T. 271; 22 W. R. 318. [1874.]

2 4 B. & C. 941; 7 D. & R. 396. [1825.]

Seller's lien.

creditors claiming in virtue of their respective securities or diligences. ibid.

Unpaid Seller's Lien.

41.-(1.) Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases, namely:

(a.) Where the goods have been sold without any stipulation as to credit;

(b.) Where the goods have been sold on credit, but the term of credit has expired;

(c.) Where the buyer becomes insolvent. (2.) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer.

Lord Denman, C.J., said, in Martindale v. Smith1 (6 stacks of oats), "The vendor's right to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, not a right to rescind the bargain."

The lien is taken away by tender of the price. ibid. (a.) Bloxam v. Saunders 2 (hops re-sold by vendor). See section 27, Duties of seller and buyer.

the buyer.-Section 39 (a.), lien. Bayley, J., said (loc. cit. at p. 948), "Where goods are sold and nothing is said as to the time of the delivery at the time of payment, and everything the seller has to do with them is complete, the

11 Q. B. 389, 396; 1 G. & D. 1; 5 Jur. 932. [1841.]

2 4 B. & C. 941; 7 D. & R. 396. [1825.]

property vests in the buyer, so as to subject him to the risk of any accident which may happen to the goods, and the seller is liable to deliver them whenever they are demanded, upon payment of the price, but the buyer has no right to have possession of the goods till he pays the price."

(b.) Lord Denman, C.J., said, in Martindale v. Smith1 (6 stacks of oats), " The sale of a specific chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee, giving the vendor a right of action for the price, and a lien upon the goods, if they remain in his possession till that price be paid."

(c.) Bayley, J., in the judgment cited above (Bloxam v. Saunders), said,2 « Whether default in payment when the credit expires will destroy his right of possession if he has not before that time obtained actual possession, and put him in the same situation as if there had been no bargain for credit, it is not now necessary to inquire, because this is a case of insolvency, and in case of insolvency the point seems to be perfectly clear (Hanson v. Meyers &c."). This was quoted by Sir Barnes Peacock in the judgment of the Judicial Committee of the Privy Council in Grice v. Richardson (tea: vendors also warehousemen). He also said, ". . . as the goods remained in the possession of the vendors, and no actual delivery had been made to the purchasers, the vendor's lien revived upon the insolvency of the vendees."

4

4

See also Dixon v. Yates5 (46 puncheons of rum).

Note. "The right to stop does not require the vendee to have been found insolvent." Per Dr. Lushington in "The Tigress."

11 Q. B. at p. 395.

2 4 B. & C. at pp. 948, 949.

36 East, 614; 2 Smith, 670. [1805.]

4 3 App. Ca. 319, 324; 47 L. J. P. C. 48; 36 L. T. 677; 26 W. R.

358. [1877.]

5 B. & Ad. 313; 2 N. & M. 177. [1833.]

6 32 L. J. Adm. 97, 99; B. & L. 38; 8 L. T. 117; 9 Jur. N. S. 361; 11 W. R. 538. [1863.]

Part delivery.

But in In re Phoenix Bessemer Steel Co., where a company had called a meeting of its principal creditors and asked for an extension of credit on existing contracts, it was held that there was no such insolvency as would entitle the sellers to refuse to deliver goods except for cash payments under a contract then existing.

(2.) bailee for the buyer. The vendor may become warehouseman of the goods sold, but so long as the actual possession of them has not been delivered to the purchaser the lien of the former is revivable by the insolvency of the latter, (Grice v. Richardson 2).

42.--Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder, unless such part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.

Example.-A. sold 46 puncheons of rum in B.'s warehouse to C., and received bills in payment, which were dishonoured at maturity, C. becoming bankrupt. C. had received delivery orders (the recognised mode of delivery) for a few puncheons, and had marked, coopered, and gauged the casks, and sold 26 puncheons to D., who paid for them. C. had never acquired the actual possession of the rum, and on his dishonouring his acceptances, A. had a lien on it for the price, and the sub-vendee could not claim against him (Dixon v. Yates 3).

Parke, J., said, "If the part be delivered with an intent to separate that part from the rest, it is not an inchoate delivery of the whole, so as to divest the right of property out of the vendor." This was approved of as a correct

14 Ch. Div. 108; 46 L. J. Ch. 115; 35 L. T. 776; 25 W. R. 187. [1876.]

23 App. Ca. 319, 324; 47 L. J. P. C. 48; 36 L. T. 677; 26 W. R. 358. [1877.]

35 B. & Ad. 313; 2 N. & M. 177. [1833.]

4 5 B. & Ad. at p. 341.