In Schotsmans v. Lancashire and Yorkshire Railway Co. (a), in 1865, Romilly, M. R., said: "It is sufficient for the purpose of stoppage in transitu to show that the vendor "was in such circumstances as not to be able to meet his "engagements."

The stoppage in transitu must, to be effectual, be on behalf of the seller, with an intention to exercise this power, as of right and independently of the buyer's assent.

Even if the seller's agent take actual possession of the goods, that is not necessarily a stoppage in transitu, unless it be done with that intent. This was decided by the King's Bench in 1805, in Siffkin v. Wray (b), in which one who was maintained to be the seller's agent, took possession of the goods by consent of the bankrupt, in trust, to sell them and apply the proceeds to take up the bills drawn against the goods. The Court held, that even if he had been the seller's agent that was no stoppage. But a stoppage of the goods done with intent to stop them, by a right paramount to that of the buyer, is not invalidated by being with the consent and approval of the buyer, or even by being originated by him. In Mills v. Ball (c), in 1801, the Court of Common Pleas held, that where a buyer wrote to the seller to say he was insolvent, and told him where the goods were, in order that he might stop them, the consequent stoppage was not invalid.

At one time it seems to have been supposed that in order to make a good stoppage in transitu, there must have been an actual taking possession of the goods by the seller or his agent, but it is now clearly settled, that the seller's rights are complete on giving the person who has the possession of the goods notice of the seller's claim to stop the goods, at a time when he can obey it, although there is neither an actual

(a) Schotsmans v. Lanes, and Yorks. Ry. Co., L. R. 1 Eq. at p. 360.
(b) Siffkin v. Wray, 6 East, 371.

(c) Mills v. Ball, 2 B, & P. 457,

taking of possession by the person stopping the goods, nor such an assent on the part of the holder as would amount to a constructive possession.

Section 46 (1) of the Sale of Goods Act provides that :-"The "unpaid seller may exercise his right of stoppage in transitu "either by taking actual possession of the goods, or by giving "notice of his claim to the carrier or other bailee or custodier "in whose possession the goods are."

In Mills v. Ball (a), in 1801, the wharfinger who had the possession of the goods told the seller's agent, who demanded them from him, that "he would not deliver them till he was "certain of a safe delivery," and the Court of Common Pleas held that, after that assent, the goods as against him were in the seller's possession; the Court guarded themselves against being supposed to decide what might be the case when the holder gave no assent.

In Bohtlingk v. Inglis (b), in 1803, the Court of King's Bench decided, that a demand on behalf of the seller on the master of the ship in which the goods were, was a stoppage as against the assignees of the buyer, who had obtained a delivery from the master.

In Litt v. Cowley (c), in 1816, the Court of Common Pleas went further the goods there were delivered to Pickfords, the carriers, at Manchester, to be delivered in London. Notice was given by the sellers to Pickfords' house at Manchester, to stop the goods, at a time when the goods were on the road, and when, therefore, the Manchester house could not have delivered them to the buyer. They forwarded the notice to their house in London, it arrived in plenty of time, but, by some blunder, the goods were delivered. The Court held that this notice revested the seller's rights, and that he might maintain trover against the assignees of the bankrupt buyer, who refused to return the goods (d).

(a) Mills v. Ball, 2 B. & P. 457,

(b) Bohtlingk v. Inglis, 3 East, 381.

(c) Litt v. Cowley, 7 Taunt. 169.

(1) See Kemp v. Falk, post, p. 440; 14 Ch. D. 446; 7 App. Ca. 585.

Section 46 (1) of the Sale of Goods Act in dealing with the subject of notice provides that :-"Such notice may be given "either to the person in actual possession of the goods or to his "principal. In the latter case the notice, to be effectual, must "be given at such time and under such circumstances that the "principal, by the exercise of reasonable diligence, may com"municate it to his servant or agent in time to prevent a "delivery to the buyer."

In 1842, in Whitehead v. Anderson (a), an unsuccessful attempt was made to give to a notice given to the master carrier, the effect of stopping the goods in transitu, though given at a time when he could not obey it. In that case, the goods were at sea consigned to Fleetwood, in Lancashire, when notice was given to the shipowner, then resident at Montrose, to stop the goods. He endeavoured to do so, but the assignees of the bankrupt won the race, and reached the vessel first; it was contended, on the authority of Litt v. Cowley (b), that the notice given to the principal was a sufficient stoppage. The judgment of the Court on this point was as follows:-" We think it was not; but to make "a notice effective as a stoppage in transitu, it must be "given to the person who has the immediate custody of the "goods; or if given to the principal, whose servant has the "custody, it must be given as it was in the case of Litt v. "Cowley (b), at such a time, and under such circumstances, "that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the "delivery to the consignee; and to hold that a notice to the "principal at a distance is sufficient to revest the property "in the unpaid vendor, and render the principal liable in "trover, for a subsequent delivery by his servants to the vendee, when it was impossible from the distance and want "of means of communication, to prevent that delivery, "would be the height of injustice. The only duty that can "be imposed on the absent principal, is to use reasonable

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(a) Whitehead v. Anderson, 9 M. & W. 518.

(b) Litt v. Cowley, 7 Taunt, 169.

"diligence to prevent the delivery; and in the present case "such diligence was used" (a).

It has been pointed out in Benjamin on Sale (b), that the two methods of stoppage mentioned are probably not exhaustive, but should be considered as only illustrative of the general right declared by section 44.

The duty of the carrier on receiving a notice of stoppage is declared by section 46 (2) of the Sale of Goods Act:-"When "notice of stoppage in transitu is given by the seller to the "carrier, or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the "directions of, the seller. The expenses of such re-delivery "must be borne by the seller."

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The unpaid seller's right to stop in transitu may be defeated before the termination of the transitus, by the assignment of the bill of lading to one, who bonâ fide gives value for a property in the goods shipped under it.

The enactments commonly called the Factors Acts, 4 Geo. 4, c. 83, 6 Geo. 4, c. 94, 5 & 6 Vict. c. 39, 40 & 41 Vict. c. 39, 52 & 53 Vict. c. 45, and the Bills of Lading Act of 1855, 18 & 19 Vict. c. 3, and the Sale of Goods Act, 1893, successively enlarged and altered the powers conferred upon holders of bills of lading, delivery orders, and what may be called documents of title.

Section 47 of the Sale of Goods Act provides :-" "that where a document of title to goods has been lawfully "transferred to any person as buyer or owner of the goods, "and that person transfers the document to a person who takes "the document in good faith and for valuable consideration, "then, if such last-mentioned transfer was by way of sale the "unpaid seller's right of lien or retention or stoppage in "transitu is defeated, and if such last-mentioned transfer was "by way of pledge or other disposition for value, the unpaid

(a) See also ante, p. 392.

(b) 4th ed., p. 910.

E E

"seller's right of lien or retention or stoppage in transitu can "only be exercised subject to the rights of the transferee." This section practically reproduces section 10 of the Factors Act, 1889 (see post, page 447), by which all documents of title were put on the same footing as bills of lading. This subject will be examined in greater detail at a later stage; for the present, it will be assumed that the statutes make no difference, and the inquiry will be as to the effect of those documents at common law.

"Much confusion," said Lord Ellenborough, in Waring v. Coxe (a), "has arisen from similitudinary reasoning on the "subject." This curious phrase seems exactly to express the fact. Bills of lading have been likened to bills of exchange, and delivery orders and dock warrants have been likened to bills of lading, and the law applicable to any one class of such documents, has been supposed to extend by analogy to the others, which is the case only where the distinctions between these different kinds of documents are not material; and the effect of the assignment of an interest in the goods, which may accompany the assignment of the bill of lading, has not always been distinguished from the effect of the assignment of the bill of lading itself.

First, it is to be observed, the buyer who has not obtained possession of the goods, may, as soon as the sale is complete, transfer his rights in the goods, whether there exists a bill of lading or not. But when no document of title exists, he can transfer no right greater than that which belongs to himself. As has been already shown, the buyer has, from the moment the sale is complete, the general right of property, subject to the seller's rights, and he may exercise every right of property consistent with the seller's rights. He may sell the goods, subject to the first seller's rights, and if he does so, the property is transferred to the second buyer, by the second sale, without any delivery of possession.

But though the second buyer acquires by his sale the legal property in the goods, and every right which his immediate

(a) Waring v. Coxe, 1 Camp. 369.