and commission agent at Manchester, to purchase goods in the name of Butler, of London, and send them to a branch of that house at Lisbon, and the goods which were so ordered were delivered at Railton's warehouse, the King's Bench considered that Railton had held the custody merely as one step in the transitus to Lisbon. These cases are, it will be observed, quite in accordance with Lord Ellenborough's judgment in Dixon v. Baldwin (a), though opposed to the marginal note in that case (b).

In Tucker v. Humphrey (c), in 1828, flour was shipped to the wharf of the defendant, who was in the habit of storing flour in his warehouses for the buyer. The seller stopped the flour before it had been landed, while the vessel was lying alongside the wharf, and the stoppage was held good.

In Jackson v. Nichol (d), in 1839, it was proved that Crawhall, an agent of the insolvents, who purchased goods for them at Newcastle, was in general in the habit of receiving the goods into his possession to abide the insolvents' orders. In this particular instance, however, before the goods were out of the seller's possession, the insolvents had directed Crawhall to forward the goods to them in London. The sellers then gave a delivery order to Crawhall, who indorsed it to a wharfinger with a special indorsement "to go on board "the Esk." The wharfinger handed the order to a keelman, who got the goods and put them on board the Esk. The Esh sailed for London, and moored in the Thames. The defendants, who were wharfingers, received the goods on board a lighter, and then they were stopped by the plaintiffs, who were unpaid sellers; and the Court held that the goods were still in transitu, because every step taken was but "a "link in the chain of the machinery, by which the goods "were to be put in motion." Tindal, J., said, "that if the

(a) Dixon v. Baldwin, 5 East, 175.

(b) See remarks of Brett, L. J., on this case in Kendal v. Marshall, Stevens and Co., 52 L. J. Q. B. 313; 11 Q. B. D. 366.

(c) Tucker v. Humphrey, 4 Bing. 516. See also Rodger v. Comptoir d'Escompte de Paris, 38 L. J. P. C. 30; L. R. 2 P. C. 393.

(d) Jackson v. Nichol, 5 Bing. N. C. 508. Cf. Cooper v. Bill, 34 L' J. Ex. 161, ante, p. 378.

"goods had ever come into the possession of Crawhall as the agent of the buyers, there to remain till the agent received "orders for their ulterior destination, such possession would "have been the constructive possession of the buyers themselves "and the right to stop in transitu would have been at an end."

In Valpy v. Gibson (a), in 1847, a case resembling Dixon v. Baldwin (b), goods had been sent by the defendants, the sellers, at the request of Brown, the buyer, to Leech and Co., of Liverpool. The report is not by any means clear as to what was the precise nature of the relationship of Leech and Co. to Brown, but they appear to have been employed by him prior to this transaction to forward goods to Valparaiso, but not to have received instructions from him to forward the goods in question.

Leech and Co. received the goods from the defendants, together with a letter stating that they were for shipment to Valparaiso, and Leech and Co. had them put on board, and subsequently relanded them by order of Brown and returned them to the sellers to be repacked. Brown became insolvent without having paid for the goods, and the sellers asserted a right to retain them until payment had been made. The plaintiffs were Brown's assignees. Wilde, C. J., delivering the judgment of the Court for the plaintiffs, said, "that "although the defendants knew that the goods were to be "sent to Valparaiso, and so informed Leech and Co., yet "Leech and Co. could not forward the goods simply on that "information, but held them subject to such orders as the

buyer might give, and the transitus was consequently at an "end as soon as the goods came to their hands. And further, "that independently of this Brown had, by relanding the "goods, dealt with them as owner, and that alone was "sufficient to put an end to the transitus (c).

In Bethell v. Clark (d), in 1888, goods had been sold by Clark and Co., of Wolverhampton, to Tickle and Co., of

(a) Valpy v. Gibson, 4 C. B. 837.

(b) Dixon v. Baldwin, 5 East, 175.

(c) See also Foster v. Frampton, 6 B. & C. 107.

(d) Bethe'l v. Clark, 57 L. J. Q. B. 302; 20 Q. B. D. 615.

London, and the sellers were instructed to consign the goods. "to the Darling Downs, to Melbourne, loading in the East "India Docks." The sellers delivered the goods to the London and North Western Railway Company to be forwarded to the ship, and they were accordingly sent by railway to Poplar, and from there to the ship in lighters by a lighter company, as agents of the railway company, a mate's receipt being taken for them on shipment, which was forwarded to the buyers. On being informed of the insolvency of the buyers, the sellers gave notice to the railway company to stop the delivery of the goods on board the ship, and the railway company gave a similar notice to the lighter company. Held, that the transit was not at an end until the goods reached Melbourne, and therefore that the sellers had till then a right to stop them in transitu.

K

In Lyons v. Hoffnung (a), in 1890, Clare bought goods from Hoffnung and Co., and gave instructions for the packages to be marked "-that is, William Clare, Kimberley—and to be sent to Howard Smith and Co.'s wharf in Sydney, for shipment to Kimberley. He told the sellers that he was going with the goods. The goods were sent to Howard Smith and Co.'s wharf to be shipped by one of their ships, and in the documents Hoffnung and Co. were described as the shippers of the goods, Clare as the consignee, and the place of destination as Kimberley. Clare obtained a bill of lading for the goods. It was held that the sellers had the right to stop the goods on the voyage.

In cases of stoppage in transitu the question is, not whether the property has or has not passed, for even if it has passed the seller may have the right to retake the goods, but in what capacity did the captain receive the goods, whether as the servant of the buyer or as an agent to carry.

In the following cases it was argued that the goods had necessarily been delivered to the buyer, because they had been placed on board his ship or a ship chartered by him.

In the case of Van Casteel v. Booker (b), in 1848, Barton

(a) Lyons v. Hoffnung, 59 L. J. P. C. 79; 15 A. C. 391.
(b) Van Casteel v. Booker, 18 L, J. Ex. 9; 2 Ex. 691.

and Co., of Liverpool, sent their own ship laden with coals. to Lyon, Schwind and Co. at Rio, who sold the coals and, partly with the proceeds but mainly with their own funds, purchased coffee, which they put on board the same ship, sending an invoice to Barton and Co., in which the coffee was stated to have been shipped by order for account and at the risk of Barton and Co. On the back of the invoice was an account in which they credited themselves with the invoice price of the coffee and debited themselves with the proceeds of the coal, and they drew on Barton and Co. for the balance. They took the bill of lading deliverable to order or assigns, "he or they paying freight free" (the word "free" was inserted in writing into a printed form), and sent it indorsed in blank to Barton and Co. Barton and Co. were heavily indebted to their bankers, and had been threatened by them with certain proceedings. These facts came to the knowledge of Lyon, who was the Liverpool agent of Lyon, Schwind and Co. He pressed Barton and Co., and they agreed that when the bills of lading came to hand they should be given to Haynes Higginson to hold them to the order of Lyon as security against the bills of exchange drawn against the coffee. On the 11th of November Barton and Co. became bankrupt. The bill of lading arrived on the 12th, and, pursuant to the agreement, was delivered by Barton and Co. to Haynes Higginson, who handed it to Lyon, and he pledged it with the plaintiffs. When the cargo arrived it was taken possession of by a messenger from the defendants, who were the assignees of Barton and Co., and the captain was served with two notices, one from the plaintiffs claiming the cargo as indorsees of the bill of lading, and the other from Lyon, who claimed to stop the goods in transitu as the agent of the unpaid sellers. Lyon appears to have been acting in this on the plaintiff's behalf.

Baron Rolfe told the jury that there could be no right to stop in transitu, as delivery on board the consignee's own ship amounted to a taking possession.

On granting a new trial, Parke, B., delivering the considered judgment of the Court, pointed out that the form of

the bill of lading was not conclusive to restrain the effect of delivery on board the consignee's own vessel.

He said: "The contract for carriage, which the bill of "lading is, is made expressly with the consignor, and he no "doubt might sue upon it, though in making it he was "really acting as agent of, and for, the consignee. But if "he made it as agent for and on behalf of the consignee, the "consignee also, as being the real principal, might sue, if "there had been a breach of the contract to carry. Not"withstanding the form of the bill of lading, therefore, the "contract may have been made really on behalf of the

vendee, though prima facie it is made on behalf of the "vendor; and it is a question for the jury, to be decided on "the evidence, looking at the form of the bill of lading, "particularly noticing that it is made freight free, and the "language of the invoice, and the immediate transfer of the "bill of lading to the bankrupts, and other facts, whether "the goods were not really delivered on board to be carried "for and on account and at the risk of the bankrupts."

In the case of Schotsman v. Lancashire and Yorkshire Railway Co. (a), in 1867, Lord Chelmsford, L. C., said that the delivery in the buyer's own ship is a final delivery at the place of destination unless the seller restrains the effect of such delivery. In this case the goods were delivered on board a vessel belonging to the consignee, and the bills of lading had been taken making the goods deliverable to the consignee or assigns. It was admitted that the property had passed to the consignee, and the question was, was there a delivery? It was held that there was.

Berndtson v. Strang (b), in 1868, was a case in which timber in Sweden had been delivered on board a vessel chartered to the buyers The bill of lading was indorsed and handed over to the buyers in exchange for their acceptance. The buyers insured the timber. On their

(a) Schotsman v. Lancs, and Yorks. Ry. Co., 2 Ch. Ap. 337, in 1867; 36 L. J. Ch. 361; reversed on another point, L. R. 2 Ch. 332.

(b) Berndtson v. Strang, 37 L. J. Ch. 665; L. R. 4 Eq. 481; 3 Ch. App.