Sect. 44. Statement of the true principle. Scotland in 1847, when MEwen v. Smith1 came up for decision. This case related to sugars in bond which, so far as the case was concerned, had never been in transit, but which were said to have been transferred by an intimated delivery order. The Court of Session negatived the claim of the alleged transferee, most of the judges founding their opinion on the seller's right to stop in transitu. On appeal, the House of Lords affirmed the judgment2 (1849), but solely on the ground that no delivery of any kind had taken place.3 The principle of stoppage in transitu is thus stated by Lord President Inglis in 1867: "No law, either in England or Scotland, gives any real countenance to the idea that the state of transitus to which the equitable remedy of stoppage applies, is anything but an actual state of transit from the seller to the buyer? . . . The equitable remedy of stoppage is applicable only to goods which are either in the hands of a carrier, or of some person--such as a wharfinger—who is doing something to render complete the contract of carriage. To put goods in a state of transitus the seller must have tive delivery is in no way different from that of actual delivery. The only question is, Has delivery of any kind taken place? If it has not, the seller's remedy is lien; if it has, the remedy, if any, is stoppage in transitu. See COM., Sect. 32 ante, p. 160. 1 9 D. 434. 26 Bell's App. 340. 3 "The simple question is whether the original vendors of these goods retained their lien upon them or not. Several of the judges in the Court below have expatiated very largely upon the doctrine of stoppage in transitu. My Lords, that doctrine has no more bearing upon this case than the doctrine of contingent remainders."-Per Lord Campbell, 6 Bell's App. at p. 355. In the subsequent case Melrose v. Hastie (1851), 13 D. 880, it was retorted in the Court of Session, that, if the Court had been misled, it was by means of English cases. Lord Fullarton said: "It appears from the judgment in the House of Lords that the term of stoppage in transitu was held to be inaccurate and inappropriate. All I can say is that, if it be so, it was no innovation of ours. It was freely used in the discussion in M'Ewen's Case for the best of all reasons that the English authorities, by which we were mainly guided in this department of mercantile law, had all treated the question under that designation." In support of this statement Lord Fullarton refers to the cases of Hurry v. Mangles (1808), 1 Camp. 452; Harman v. Anderson (1809), 2 Camp. 242; Whitehouse v. Frost (1810), 12 East 613; Stoveld v. Hughes (1811), 14 East 308; Swanwick v. Sothern (1839), 9 A. & E. 895; and Hawes v. Watson (1824), 4 B. & C. 540. "All of these," continued Lord Fullarton, "and, I believe, many others analogous to that of M'Ewen, were argued by the counsel, and decided by the judges, and recorded by the reporters, as cases of stoppage in transitu and nothing else "-13 D. at p. 896. parted with the possession of the goods and put them into Sect. 44. the hands of some person who is to carry, or procure them to be carried and delivered to the buyer, and the buyer must be in the position of not having received the goods. Unless the seller has parted with the possession, his remedy is not stoppage in transitu, but in Scotland, retention, and in England, an exercise of the seller's right of lien."1 adapt this statement to the existing law, it is only necessary to exclude the reference to the Scottish right of retention, which, by this Act, has now been superseded by the seller's lien. "2 3 To stoppage The right of stoppage may be exercised by the "unpaid Right of seller" as defined in Sect. 38. It is not available to any by whom exone but a seller, or a person who stands "in the position of ercised. a seller, as for instance an agent of the seller to whom the bill of lading has been endorsed, or a consignor or agent who has himself paid, or is directly responsible for, the price.' It is not every person who may have held a lien over goods, who is entitled to follow them and regain possession after it has been lost. The liens of factors, bleachers, etc., have no such special privilege attached to them. It will be observed that, although in Sect. 45 there is frequent reference to the agent of the buyer as being entitled to put an end to stoppage in transitu, it is nowhere expressly stated that the seller's agent may Seller's agent. enforce the stoppage where he has not a direct title as indorsee, or is not personally interested as having paid or become responsible for the price. Such a right, however, on the part of an agent exercising either special or general authority, is clearly implied. It is provided by Sect. 61 (2) that the rules relating to the law of principal and agent continue to apply to contracts for the sale of goods, and, in practice, the power of an agent in this respect is fully recognised.* A different question arises if one 1 In Black v. Incorporation of Bakers (1867), 6 Macp. 136 at p. 140. 2 Sect. 38 (2). 3 Benjamin, p. 847. 4 See, e.g., Baxter v. Pearson (1807), Hume 688; Whitehead v. Anderson (1842), 9 M. & W. 518; Blackburn on Sale, p. 325. "It is most salutary, and quite consistent with the principle of negotiorum gestio, that the person Sect. 44. Unauthorised agent-Ratification. Cautioner for price. Effect of arrestments, cash receipts, and cross accounts. Carrier's lien. assumes to act on behalf of the seller who has no authority whatever. The rule in England appears to be that, if the act of the party in stopping the goods is ratified before the transit is ended, by the party entitled to exercise the privilege, it will be effectual, but that ratification or adoption after the transit has ended, will be too late.1 A cautioner for the price is not entitled to stop in transitu.2 If, however, the cautioner has paid the price to the seller, he is entitled, according to the ordinary rule of the law of Scotland, to an assignment of the securities held by the creditor, including the right to stop the goods. The same rule was introduced into England by the English Mercantile Law Amendment Act of 1856.3 An arrestment in the hands of the carrier by a creditor of the buyer will not defeat the seller's right to stop the goods; nor will a mere cash receipt granted by the buyer to a sub-vendee, not being a document of title.5 When there are cross accounts between seller and buyer, the right is not excluded because the seller has goods of the buyer in his hands unaccounted for, and the balance is uncertain." A decision inconsistent with this rule has been much questioned.? The seller's right of stoppage in transitu will prevail against any lien claimed by the carrier on account of a general balance, but not for the carrier's special charges on the goods themselves. who in general acts for a foreign merchant though he hold no special commission, should be allowed, on the sudden bankruptcy of the buyer, to apply for and obtain the necessary warrant to stop "-Bell's Com. i. 249. The agent can act just as effectually without a judicial warrant. Bell gives undue import ance to the warrant. 1 Stoppage effectual in Hutchings v. Nunes (1863), 1 Moo. P.C.C. N.S. 243, but ineffectual in Bird v. Brown (1850), 4 Ex. 786. 2 Louson v. Craik (1842), 4 D. 1452; Siffkin v. Wray (1805), 6 East 371. 3 19 & 20 Vict. c. 97, Sect. 5. See Benjamin, p. 846. 4 Neish v. Trompousky (1807), Hume 693; Dunlop v. Scott and Co. (22nd February 1814), F.C. Similarly, in regard to an attachment in England, Smith v. Goss (1808), 1 Camp. 282. 5 Kemp v. Falk (1882), 7 App. Cas. 573, per Lord Blackburn at p. 584. Benjamin, p. 891 note and P. 895. 6 Wood v. Jones (1825), 7 D. & R. 126. See Benjamin, p. 849. 8 Oppenheim v. Russell (1802), 3 B. & P. 42. DURATION OF 45.-(1.) Goods (a) are deemed to be in course of Sect. 45. 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. (@) (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. (3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds 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. (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 (a) has refused to receive them back.(k) (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. (6.) Where the carrier or other bailee or custodier wrongfully (m) refuses to deliver the goods to the Р Sect. 45. buyer, or his agent in that behalf," the transit is deemed to be at an end. (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 show an agreement to give up possession of the whole of the goods.(") (h) NOTES. (a) "Goods," "seller," "buyer." Defined Sect. 62 (1). "Buyer" includes a person to whom the buyer directs the goods to be sent.1 (b) "Transit." See Coм. infra, p. 212. (c) "Delivered to a carrier." Delivery defined, Sect. 62 (1). Delivery to a carrier is prima facie delivery to the buyer, Sect. 32 (1). The definition of the course of transit here given might be made more complete by the addition of words excluding from its scope delivery to a carrier (1) where the property has not passed (see Sects. 17, 18, and 19), and (2) where the carrier is the buyer's agent to receive the goods on his behalf. See COм. infra, p. 212. (d) "Bailee or custodier." Bailee, in Scotland, by interpretation, includes custodier [Sect. 62 (1)], and the word "custodier" is therefore superfluous here. If the bailee is not himself a carrier, he must at least hold the goods for some purpose connected with the contract of carriage, e.g. as warehouseman or wharfinger receiving the goods from one carrier, that the transit may afterwards be continued by another. A carrier who is also a warehouseman puts an end to the transit by holding the goods by instructions of the buyer for the purpose of custody and not of carriage. (e) "Agent in that behalf." Buyer's agent includes a subbuyer. It probably also includes a trustee in bankruptcy (COм. infra, p. 216). As to seller's agent see COM., Sect. 44 ante, p. 207. 1 Ex parte Golding, Davis, and Co. (1880), 13 Ch. D. 628, per Cotton, L. J., at p. 636; Ex parte Miles (1885), 15 Q.B.D. 39, per Brett, M. R., at 2 Dixon v. Yates (1833), 5 B. & Ad. 313. p. 44. |