is to be paid by instalments, the full lien will subsist Sect. 43. although some of these instalments may have been paid.1 In Scotland, the property now passes irrespective of possession, in the same manner as in England, and the effect of a decree will, therefore, be precisely the same as that of an English judgment, and subject to the same limitations. It will be observed that though the exercise by the seller of his right of lien does not rescind the sale, it gives the seller a right to re-sell, and the new buyer gets a valid title which necessarily takes all right of property out of the first buyer (Sect. 48). But this right of re-sale, if not exercised, and also the right of lien itself (Sect. 41), necessarily cease upon payment by the buyer of the amount in a decree for the price, and the property in the buyer, which was formerly liable to be defeated, now becomes absolute. The price has been paid by means of the decree, and the vendor is no longer an "unpaid seller" (Sect. 38). There are other circumstances in which a satisfied judgment or decree affects the right of property. If, for example, the seller wrongously refuses to deliver goods the property in which has passed to the buyer, and the buyer obtains decree for damages under Sect. 51, payment by the seller of the amount in the decree will necessarily re-vest the property in the seller or his assignee, irrespective of the special right in the seller to give a title to another buyer under Sect. 25 (1).2 Stoppage in transitu. STOPPAGE IN 44. Subject to the provisions of this Act," when Sect. 44. the buyer of goods becomes insolvent, the RIGHT OF unpaid seller who has parted with the possession () TRANSITU. of the goods has the right of stopping them in transitu, that is to say, he may resume possession of 1 Scrivener v. The Great Northern Railway Co. (1871), 19 W.R. 388. 2 See note (h), Sect. 1 ante, p. 2. Sect. 44. Stoppage in transitu an extension of lien. the goods as long as they are in course of transit, and may retain them until payment or tender of the price. NOTES. (a) "Subject to the provisions of this Act." E.g. the proviso attached to Sect. 47, under which stoppage in transitu may be defeated. See also Sects. 45 to 47 inclusive. If the seller has reserved the right of disposal under Sect. 19, the property has not passed, and stoppage in transitu is unnecessary. If the seller resumes actual custody he does so in virtue of his right as undivested owner. (b) "Buyer," "goods." Defined Sect. 62 (1). (c) Insolvency defined Sect. 62 (3). It is not necessarily bankruptcy, nor even notour bankruptcy. See COм. post, p. 288. Although at the date of the stoppage the buyer is solvent, his subsequent insolvency before delivery to him will render the stoppage effectual.1 (d)" Unpaid seller." Defined Sect. 88. p. 207. See COM. infra, (e) "Possession." Defined in Factors Act 1889, Sect. 1 (2). No definition is attempted in this Act. The right to resume possession only extends to the goods themselves, not to a surrogatum, such as the proceeds of a policy of insurance taken out by the buyer.2 (f) "Right of stopping." Sect. 45. A right (unless otherwise provided) As to duration of transit see (h) Payment or tender." See Sect. 41, note (e) ante, p. 191. (i) "Price." See Sects. 8 and 9. COMMENTARY. Stoppage in transitu may with perfect propriety be called an equitable extension of the seller's right of lien.3 1 Benjamin, p. 851; The Constantia (1807), 6 Rob. Adm. Rep. 321, per Lord Stowell at p. 326. See also The Tigress (1863), 32 L.J. Adm. 97 at p. 101. 2 Berndtson v. Strang (1868), 3 Ch. App. 588. 3 It is so spoken of by Bell (Prin., Sect. 1307), and by Houston (Stoppage in transitu, p. 2). The governing principles of each of these rights, though Sect. 44. differing in many respects from the ordinary rules of contract, very nearly resemble each other. Both are seller's remedies against the goods, and have for their object the securing of the unpaid price. Both necessarily suppose the property to be in the buyer, but although the property must have passed, the possession remains with the seller or with a carrier. In both, the right ceases after the goods have been delivered into the actual or constructive custody of the buyer or his agent, other than a carrier conveying the goods towards the buyer or in terms of the contract. Lien exists so long as the unpaid seller retains actual or constructive possession, and ceases the moment that possession is lost; stoppage begins where lien ends, and continues so long as the goods, although in a sense delivered to the buyer through his agent the carrier (Sect. 32), are still in course of transit. In one important respect, however, the rights differ. Lien can be exercised whether the buyer is insolvent or not: Insolvency of stoppage is only available when the buyer is insolvent buyer necesaccording to the definition of insolvency given in Sect. 62 (3) stoppage. of this Act. If the seller stop in transitu before actual insolvency, he does so at his peril. If, when the goods. arrive at their destination, the buyer continues solvent, the goods must be delivered, and the seller will be liable in any expenses incurred.1 Stoppage in transitu is said to have been introduced into England in 1690 by the case of Wiseman v. Vandeput.2 This was a Chancery case, and therefore, if correctly cited as the first instance of stoppage in transitu, it settles the fruitless discussion as to whether the right had its origin in Equity or at Common Law according to the distinction so long established in England, but now happily almost abolished.3 1 Per Lord Stowell in The Constantia, 6 Rob. Adm. Rep. 321. 2 2 Vernon's Repts. p. 203. 3 "I have always thought it highly injurious to the public that different rules should prevail in the different Courts on the same mercantile case. The mercantile law of this country is founded on principles of Equity; and when once a rule is established in that Court as a rule of property, it ought to be established in a Court of Law."-Per Buller, J., in Tooke v. Hollingsworth (1793), 5 T.R. 215 at p. 229. Equity and Common Law were to a large extent fused by the Judicature Act of 1873 (36 & 37 Vict. c. 66). sary to Origin of stoppage in England. transitu Sect. 44. Scotland. Although originating in Equity, it was soon adopted by the Courts of Common Law, and numerous cases after 1743 show that, from that date onwards, it had obtained a firm footing in England.1 In Scotland, the right of stoppage was not recognised till near the end of the eighteenth century. In earlier cases the rule of the Roman law which allowed the seller to claim the goods for the price even after delivery, was often pleaded, and was sometimes allowed on the ground of presumptive fraud in the buyer, but this rule was latterly restricted to a period of three days after delivery. In Prince v. Pallat (1680) the seller's right to stop in transitu was strongly urged on the ground that delivery to the carrier was not delivery to the buyer. The Lords, however, found "that the wines being delivered to the skipper upon the buyer's order, the property was stated in the buyer, and that there was no hypothec in ware by the law of Scotland." 94 The rule intra triduum which prevailed in Scotland after 1736, was pleaded and sustained by the Court of Allan, Stewart, Session in Allan, Steuart, and Co. v. Stein's Creditors 5 (1789), and Co. v. Stein's Creditors. but on appeal to the House of Lords (1790), the judgment on this point was reversed, and stoppage in transitu allowed. Lord Chancellor Thurlow said: "By the law of England, and, as I conceive, by the law of Scotland also, the shipping of goods to one who commissions them, or the delivery of them to a carrier to be conveyed to him, was a completed sale. But within the last hundred years a rule has been introduced from the customs of foreign nations, that, in the case of the vendee's bankruptcy, the vendor might stop and take back the goods in transitu, or before they came into the hands of the vendee: and this is certainly now a part of the law of England, and I understand it to be the law likewise of 1 Snee v. Prescott (1743), 1 Atk. 245, and other cases cited by Lord Abinger in his dissenting judgment in Gibson v. Carruthers (1841), 8 M. & W. 337 at p. 343. Lord Abinger's judgment contains an able review of the history of the doctrine. 2 Inglis v. Royal Bank (Cave's Case) (1736), Mor. 4936. 3 Mor. 4932. 4 See COM., Sect. 32 ante, p. 159. 5 Mor. 4949; 3 Pat. App. pp. 192, 193. 6 Reported sub nom. Jaffrey, etc. v. Allan, Stewart, and Co., 3 Pat. App. of the principle. Scotland." 1 This judgment had the effect of establishing Sect. 44. the doctrine of stoppage in transitu as part of the law of Misconception Scotland, but for many years afterwards its nature was not fully understood. A tendency was exhibited to drive both lien and stoppage in transitu into conformity with the ordinary law of sale, rather than to view them as special remedies standing per se." It was generally assumed that the effect of stoppage in transitu was to prolong the right of lien, and so prevent actual delivery to the buyer.3 To meet difficulties which suggested themselves, Bell divided constructive delivery into two kinds, viz. (1) where the goods could be stopped, and (2) where that privilege could not be exercised. In the former class he included such constructive delivery as went "no further than to forward the goods on their course towards the buyer in the charge of a middleman." 4 Even in the case of warehoused goods, there was, according to this theory, a kind of constructive delivery which allowed of stoppage in transitu, and another kind which placed the goods altogether beyond the reach of the seller.5 This was the state of the law as understood in 13 Pat. App. at p. 196. 2 This tendency can be traced in the works of text writers after the general fallacy was exploded in 1849. See, e.g., Ross' Leading Cases, Com. Law (1855), vol. ii. p. 801, and Paterson's Compendium of English and Scotch Law (1865), p. 189. The latter writer, referring to the law of Scotland, states that the doctrine of stoppage in transitu is not, as in England, an exception to the general rule. "For the general rule in the case of all contracts is that either party may withhold performance of his part of the contract if the other party refuses to perform the corresponding part." As authority, Paterson cites Morton v. Abercromby (1858), 20 D. 362, but, apart from incidental dicta, that case gives no countenance to any distinction between the laws of Scotland and England in this respect. Paterson's conception seems to have been that, in Scotland, the seller's obligation of delivery was not performed by delivery to a carrier, but this is a manifest error. See Coм., Sect. 32 ante, p. 160, and Prince v. Pallat (1680), Mor. 4932. His inference is that, in Scotland, stoppage was merely an exercise by the seller of his undivested right of property, but it was clearly a re-vesting in the seller of property which had passed from him to the buyer. 3 The foundation of a right to stop in transitu, properly speaking, is the original title of property in the vendor, which is held to accompany the goods in their transit or carriage, to the effect, or for the purpose, of enabling that party to stop or withhold the actual delivery, if, from supervening facts, his safety is endangered, and he has accepted of no provision for the price."-Per Lord Justice-Clerk Hope in Louson v. Craik (1842), 4 D. 1152 at p. 1157. Bell's Com. i. 229-233. 5 Bell's error is pointed out in full editorial notes by Lord M'Laren in his edition of the Commentaries, vol. i. pp. 183 and 229. The effect of construc |