signed by a merchant in Edinburgh to his factors in London and stopped, on their insolvency, before it had come into their possession. Lord Chief Baron Eyre said: "The transaction "between them was as between principal and factor, and not as between vendor and vendee . . . the right of stop"ping in transitu was out of the question, that never occurring "but as between vendor and vendee." In Sweet v. Pym (a), in 1800, the defendant, Pym, was a fuller, and as such had a general lien on the clothes of his customers. He shipped some clothes on which he had this lien, on board a vessel, by the direction of the customer, who at the time was indebted to him, and whose clothes he might, therefore, have retained if he pleased. The customer became insolvent, and Pym succeeded in getting possession of the goods, before the transitus was ended; but Lord Eldon, at Nisi Prius, and afterwards the King's Bench, decided, that the delivery on board ship put an end to Pym's possession, and, consequently, to his lien, and that it could not be revived by stopping the goods in transitu. This case must be distinguished from those in which the bailee, who has a lien, makes a bargain with the carrier, by which the carrier is to forward the goods subject to the control of the bailee. There the bailee never parts with the possession at all, for his bargain with the carrier makes the possession of the carrier that of the bailee, and he in consequence keeps his lien till the goods are delivered to the consignee. But in such cases it is quite immaterial whether the consignee is solvent or not, for the bailee does not seek, by stopping the goods in transitu, to revive a lien which was lost, but to keep a lien which was never lost because there was never a commencement of the transitus (b). Thus in Freeman v. Birch (e), in 1833, the King's Bench decided that a laundress who was in the habit of sending the washed linen to the owner in London, and herself paying the carriage, might maintain an action against the carrier for the (a) Sweet v. Pym, 1 East, 4. (b) See Sale of Goods Act, section 43. loss of the linen. The Court said, that "she had a special "property which had not passed from her. The owner of "the linen was not the employer of the carrier, and the risk "of the bailee was not over till the goods were delivered." The point that one who stands in the position of a seller has the right of stoppage, and that no one else has such a right, was decided in two cases arising out of the same bankruptcy. In the first, Feise v. Wray (a), in 1802, the facts were, that Browne, who had since become a bankrupt, gave an order to Fritzing, a factor of Hamburgh, to procure and ship for him a quantity of wax. Fritzing purchased the wax in his own name, and on his own credit, from persons strangers to Browne; he shipped it in Browne's name, and on his account and risk, and drew bills on him for the price of the wax and his commissions on the purchase. The defendant, who was the agent of Fritzing, stopped the goods in transitu on Fitzing's behalf, and the plaintiff, who was Browne's assignee, brought trover against him, contending, amongst other points, that Fritzing was but an agent of Browne with a lien, and could not stop the goods; the King's Bench said the point was worth consideration if it had arisen, but it did not arise. Grove, J., said, "Fritzing may be considered "in reality the vendor, for the name of the original owners "was never made known to the bankrupt; there was no 'privity between them, but the goods were purchased and "the bills drawn in Fritzing's own name, and therefore, he "stands in the situation of vendor as to Browne." In the second case, Siffken v. Wray (b), in 1805, the same parties had a law suit about another transaction. In this case, it appeared that Browne had ordered some corn of Dubois and Co., and desired them to draw for the price partly on his correspondent Fritzing. Dubois and Co. shipped the corn, and drew on Fritzing, who accepted the drafts. Browne became a bankrupt much indebted to Dubois and Fritzing, and not having paid the price of the corn. The (a) Feise v. Wray, 3 East, 93. defendant, who was Fritzing's agent, took possession of the corn by authority of the bankrupt, but without any authority from Dubois and Co., in trust to sell and apply the proceeds to meet the bills drawn against the corn. The plaintiffs were the assignees of Browne. Lord Ellenborough said: "The defendant had no right from Fritzing, for Fritzing "himself had no right to stop the goods in transitu. Fritzing's situation in this transaction was very different from "what it was in Feise v. Wray (a); there he was liable in "the first instance for the price of the goods, and, therefore, "the Court considered him as a vendor quoad the bankrupt "here to whom he had shipped them." 66 In Newson v. Thornton (b), in 1805, where pork had been consigned on the joint account of the consignors and consignees, and a bill drawn on the consignees for half the price, it was held that the consignors might stop the goods in transitu on the insolvency of the consignees. In Morrison v. Gray (c), in 1824, a merchant in Dundee having shipped goods to a consignee in London, on hearing of the consignee's insolvency, indorsed and forwarded the bill of lading to the plaintiff, his agent in London, for the sole purpose of enabling him to stop the goods in transitu. It was held that the plaintiff, although not an indorsee for value, had a special property in the goods sufficient to enable him to maintain trover. In Wood v. Jones (d), in 1825, it was held that an agent who had no specific authority to do so, might stop the goods on behalf of his principal, the vendor. In Tucker v. Humfrey (e), in 1828, where the consignor was nearly in the situation of Fritzing, in the case of Feise v. Wray (a), but was resident in this country, the whole transaction being English, the Common Pleas assumed his right to stop the goods in the character of seller as indisputable. (a) Feise v. Wray, 3 East, 93. (b) Newson v. Thornton, 6 East, 17. It seems that in cases where a factor acting for a foreign correspondent purchases goods in his own name, and on his own credit, it is rather too qualified a phrase to say merely that he stands in the position of seller quoad the consignee. If he is not the seller, it is difficult to say who is, as there would be much difficulty in establishing any privity of contract between the foreign correspondent and the original sellers. But there is a very gradual progression from this case through those in which the original seller has a right to elect between the liability of the factor and the consignee as principals, up to those cases in which the factor, if liable at all, is liable merely as a surety; and there may, consequently, be some difficulty at times in determining whether an agent can be said "to be in the position of seller," so as to give him a right to stop the goods in transitu, on his own account or not. Although the right of stoppage in transitu must be exercised by one who stands in the position of a seller, yet it is not necessary that the property should have vested in him. His interest will be sufficient if he has contracted to have them delivered to him. Thus in Jenkyns v. Usborne (a), in 1844, Hunter and Coventry of London had given an order for beans to Lloyd of Leghorn. The quantity shipped was in excess of that ordered, and Hunter and Coventry declined to accept it, but accepted a bill for the amount ordered, and the plaintiff, who was Lloyd's London agent, agreed to take the excess, and received from Hunter and Coventry a delivery order, and accepted a bill for the price. After this, but before the arrival of the beans in London, he sold the excess to Thomas, and sent him the delivery order. Thomas then pledged the delivery order with the defendant. Thomas stopped payment without having paid the plaintiff, and the plaintiff thereupon gave instructions to the captain to withhold delivery. The defendant obtained possession. Tindal, C. J., delivering the judgment of the Court sustaining the verdict for the plaintiff, said, "It was objected that it is only the (a) Jenkyns v. Usborne, 13 L. J. C. P. 196; 7 M. & G. 678. 66 "owner of the goods who can exercise that right (stoppage "in transitu); and that, in this case, the property in the goods had not vested in the plaintiff at the time of the stoppage, but only an interest in, and right to receive, a "certain portion of the cargo, to be afterwards ascertained "and appropriated to the parties intended; but we see no "sound distinction, with reference to the right of stoppage "in transitu, between the sale of goods, the property of which "is in the vendor, and the sale of an interest which he has "in a contract for the delivery of goods to him" (a). And although an agent may stop goods in transitu on behalf of his principal, yet if he be not the agent at the time of the stoppage it will be ineffectual. In Bird v. Brown (b), in 1850, the defendants, who were purchasers of certain bills of exchange which had been drawn on consignees in Liverpool in respect of certain shipments, acting in the seller's interest, but without his authority, stopped the goods on hearing of the consignee's insolvency, and obtained possession. The plaintiffs, who were the assignees of the consignees, demanded the goods, and subsequently an agent, duly appointed by the seller, ratified the act of the defendants. But it was held that the transitus was at an end when the goods had reached the port of destination, and when the consignees, having demanded the goods and tendered the amount of the freight, would have taken them into their possession, but for the wrongful delivery of them to other parties. In Hutchings v. Nunes (e), in the Privy Council in 1863, a case somewhat similar to the last, the goods were stopped in transitu by a person who had previously done business with the consignors, and who considered himself and was considered by them to be their agent, but he had no express authority at the time of the stoppage to stop the goods. The stoppage was held good by Lord Kingsdown and L. JJ. Knight-Bruce and Turner. (a) See Factors Act, 1889, s. 9. (b) Bird v. Brown, 19 L. J. Ex. 154; 4 Ex. 786. A A |