page, is determined by actual delivery to the vendee, or by circumstances which are equivalent to actual delivery.

* 544

There are cases in which a constructive delivery will, and others in which it will not, destroy the right. The delivery to a carrier or packer, to and for the use of the vendee, or to a wharfinger, is a constructive delivery to the vendee; but it is not sufficient to defeat this right, even though the carrier be appointed by the vendee. It will continue until the place of delivery be, in fact, the end of the journey of the goods, and they have arrived to the possession, or under the direction of the vendee himself. (a) If they have arrived at the warehouse of the packer, used by the buyer as his own, or they are landed at the wharf where the goods of the vendee were usually landed and kept, the transitus is at an end, and the right of the vendor extinguished. (b) 1 The delivery to the master of a general ship, or of one chartered by the consignee, is, as we have already observed, a delivery to the vendee or consignee, but still subject to this right of stoppage, which has been termed a species of jus postliminii. (c) And yet, if

1

(a) The transitus is not at an end until the goods have reached the place of destination named by the vendee; Coates v. Railton, 6 Barnew. & Cress. 422, and have come to the actual possession of the vendee, or under circumstances equivalent thereto. Buckley v. Furniss, 15 Wendell, 137. Covell v. Hitchcock, 23 Wendell, 611. Edwards v. Brewer, 2 Meeson & Welsby, 375.

(b) Snee v. Prescott, 1 Atk. Rep. 248. Stokes v. La Riviere, cited in 3 Term Rep. 466, and 3 East's Rep. 397. Ellis v. Hunt, 3 Term Rep. 464. Richardson v. Goss, 3 Bos. & Pull. 119. Scott v. Pettit, 3 ibid. 469. Smith v. Goss, 1 Campb. Rep. 282. Lord Alvanley, in 3 Bos. & Pull. 48. Dutton v. Solomonson, 3 ibid. 582. Rowe v. Pickford, 8 Taunt. Rep. 83. Tucker v. Humphrey, 4 Bingham's Rep. 516. (c) Bohtlingk v. Inglis, 3 East's Rep. 381. Cox v. Harden, 4 ibid. 211. Newhall v. Vargas, 13 Maine Rep. 93. The master gave a receipt for the goods on delivery on board by the consignor, and afterwards signed a bill of lading to the consignee. That circumstance did not take away the right of stoppage. Thompson v. Trail, 2 Carr. & Payne, 334. But in Bolin v. Huffnagle, 1 Rawle's Rep. 1, there was a delivery of goods at a foreign port, to the master of the consignee's own ship, for him; and it was held that the transitus was at an end. This last decision may perhaps be questioned, inasmuch as the delivery in that case, to the master of the consignee's ship, was for the purpose of conveyance to him, and not like the case of Fowler v. Kymer, cited in the next note, for the purpose of disposal in a foreign market

Sawyer v. Joslin, 20 Vt. R. 172. Frazer v. Hilliard, 2 Strobh. R. 309.

1

*

years, 545

the consignee had hired the ship for a term * of and the goods were put on board to be sent by him on a mercantile adventure, the delivery would be absolute, as much as a delivery into a warehouse belonging to him, and it would bar the right of stoppage. (a) The idea that the goods must come to the corporal touch of the vendee is exploded; and it is settled that the transitus is at an end, if the goods have arrived at an intermediate place, where they are placed under the orders of the vendee, and are to remain stationary until they receive his directions to put them again in motion for some new and ulterior destination. (b) In many of the cases, where the vendor's right of stopping in transitu has been defeated, the delivery was constructive only; and there has been much subtlety and refinement on the question, as to the facts and circumstances which would amount to a delivery sufficient to take away the right. The point for inquiry is, whether the property is to be considered as still in its transit; for if it has once fairly arrived at its destination, so as to give the vendee the actual exercise of dominion and ownership over it, the right is gone. (c) The cases in general upon the subject of constructive delivery may be reconciled by the distinction, that if the delivery to a carrier or agent of the vendee be for the purpose of conveyance to the vendee, the right of stoppage continues, notwithstanding such a constructive delivery to the vendee; but if the goods be delivered to the carrier or agent for safe custody, or for disposal on the part of the vendee, and the middle man is by the agreement converted into a special agent for the buyer, the transit or passage of the goods terminates, and

82.

(a) Fowler v. Kymer, cited in 3 East's Rep. 396. Wright v. Lawes, 4 Esp. Rep. Stubbs v. Lund, 7 Mass. Rep. 457, S. P.

(b) Dixon v. Baldwen, 5 East's Rep. 175. Foster v. Frampton, 6 Barn. & Cress. 107.. Dodson v. Wentworth, 4 Man. & Gr. 1080.

(c) Wright v. Lawes, 4 Esp. Rep. 82.

1 See Van Casteel v. Booker, 2 Wels. Hurls. & Gor. Rep. 691. This case contains a valuable discussion as to the effect of a delivery of goods on board a vessel, as determining the right of stoppage. Per Parke, B. Where the goods were delivered on the vendee's own ship, and the captain signed a bill of lading "to the order or assigns" of the vendor, it was held that the vendor's right to stop in transilu remained. Turner v. Trustees of Liverpool Docks, 6 Eng. L. & Eq. 507. 6 Exch, 543. Ellershaw v. Magniac, 6 Exch. 570. 63

VOL. II.

with it the right of stoppage. (a)1 So, a complete delivery of part of an entire parcel or cargo, with intention to take 546 the whole, terminates the transitus, and the vendor cannot stop the remainder. (b)

A delivery of the key of the vendor's warehouse to the purchaser; (c) or paying the vendor rent for the goods left in his warehouse; (d) or lodging an order from the vendor for delivery with the keeper of the warehouse; (e) or delivering to the vendee a bill of parcels, with an order on the storekeeper for the delivery of the goods; (f) or demanding and marking the goods by the agent of the vendee, at the inn where they had arrived at the end of the journey; (g) or suffering the goods to be marked and resold, and marked again by the under pur

(a) James v. Griffin, 1 Mees. & Wels. 29, 30.

(b) Slubey v. Heyward, 2 H. Blacks. Rep. 504. Hammond v. Anderson, 4 Bos. & Pull. 69. Lord Ellenborough, 6 East's Rep. 627. Jones v. Jones, 8 Meeson & Welsby, 431. In these cases there was an unequivocal act of possession and ownership. In other cases, where only a portion of the goods were delivered, and the intention of the vendee was only to take part of the goods, the right of stoppage as to the residue has been maintained. Hanson v. Meyer, 6 East, 614. Buckley v. Furniss, 17 Wendell, 504. Tanner v. Scovell, 14 Mees. & Wels. 28.

(c) Lord Kenyon, 3 Term Rep. 468.

(d) Hurry v. Mangles, 1 Campb. Rep. 452. Suffering the goods, by agreement, to lie free of rent, in the vendor's warehouse, for a time, is still a complete delivery, and destroys the lien. Barrett v. Goddard, 3 Mason's Rep. 107. But as between vendor and vendee, the lien is not divested by an order of vendor, that he holds to the order of vendee the goods specified free of rent, while the goods remain in the same warehouse unpaid for. Townley v. Crump, 4 Adolph. & Ellis, 58.

(e) Harman v. Anderson, 2 Campb. Rep. 243.

(ƒ) Hollingsworth v. Napier, 3 Caines's Rep. 182. In Akerman v. Humphrey, 1 Carr. & Payne, 53, it was held, that the delivery of a shipping note by the consignee to a third person, with an order to the wharfinger to deliver the goods to such third person, did not pass the property so as to prevent a stoppage in transitu by the consignor; and that decision was adopted as sound law in Tucker v. Humphrey, 4 Bing. Rep. 516.

(g) Ellis v. Hunt, 3 Term Rep. 464.

1 Where goods were sold to be shipped to an ultimate destination, of which the vendor had knowledge, but were first to go into the hands of an agent of the purchaser, and then to remain until the purchaser or his consignee should order them forwarded, the court were of opinion that the right of stoppage in transitu was determined by the goods coming to the hands of the agent first mentioned. Valpy v. Gibson, 4 M. G. & Scott R. 837. Biggs v. Barry, 2 Cur. C. C. 259. See, however, Aguirre v. Parmelee, 22 Conn. 473. Chandler v. Fulton, 10 Tex. 2. Hays v. Mouille, 14 Penn. 48.

* 547

chaser, (a) have all been held to amount to acts of delivery, sufficient to take away the vendor's lien, or right of stoppage in transitu. On the other hand, if the delivery be not complete, and some other act remains to be done by the consignor, the right of stoppage is not gone. (b) So, while a vessel is performing quarantine at the port of delivery, and the voyage not at an end, the consignor's right of stoppage has been held not to be divested, even by a premature * possession on behalf of the consignee. (c) That doctrine has, however, been since contradicted and overruled by Lord Alvanley, in Mills v. Ball, (d) and by Mr. J. Chambre, in Oppenheim v. Russell; (e) and the better opinion now is, that if the vendee intercepts the goods on their passage to him, and takes possession as owner, the delivery is complete, and the right of stoppage is gone. But if the goods have arrived at the port of delivery, and are lodged in a public warehouse, for default of payment of the duties, they are not deemed to have come to the possession of the vendee, so as to deprive the consignor of his right. (ƒ)'

(a) Stoveld v. Hughes, 14 East's Rep. 308.

(b) Withers v. Lyss, 4 Campb. R. 237. Busk v. Davis, 2 Maule & Selw. 397. Coates v. Railton, 6 Barn. & Cress. 422. Naylor v. Dennie, 8 Pick. R. 198.

(c) Holst v. Pownal, 1 Esp. R. 240.

(d) 2 Bos. & Pull. 461.

(e) 3 Ibid. 54.

426.

(f) Northey v. Field, 2 Esp. R. 613. Nix v. Olive, cited in Abbott on Shipping, The English system of warehousing goods was proposed by Sir Robert Walpole, in 1733, in his Excise Scheme, but not adopted. Its advantages were pointed out by Dean Tucker, in 1750. The scheme was revived and recommended by Mr. Pitt, and digested in a practical shape under the administration of Mr. Addington. The statute of 43 Geo. III. ch. 132, laid the foundation of this wise and politic system, and the successive statutes on the subject were consolidated by the act of 4 Geo. IV. in 1823, and the whole amended and reënacted by the statute of 6 Geo. IV. ch. 94, and lastly, by the statute of 3 and 4 William IV. ch. 57, and the consolidated act of 8 and 9 Victoria, ch. 91, which comprehends the system as now in operation. The object of the warehousing system is to lodge imported articles in public warehouses of special security, at a reasonable rent, without payment of the duties on importation, till they are withdrawn for home consumption, and if reëxported, no duty is ever paid.

1 If the goods remain in the custom-house, the right is not defeated, though the vendee has paid the freight. Donath v. Broomhead, 7 Barr's R. 301.

But where the goods have been placed in a public store under the warehousing system, the transitus is at an end. Mottram v. Heyer, 5 Denio's R. 629.

(3.) Of acts of the vendee affecting the right.

A resale of the goods by the vendee does not, of itself, and without other circumstances, destroy the vendor's right of stoppage in transitu. (a) But if the vendor has given to the vendee

documents sufficient to transfer the property, and the 548 vendee, upon the strength of them, sells the goods to a

bona fide purchaser without notice, the vendor would be divested of his right. A bill of lading usually has the word assigns: the goods are to be delivered to the consignee or his

It secures the duties on goods lawfully imported for use and sale in England, and relieves the trader from immediate payment in cash, and until the goods are withdrawn for home consumption. It allows the storage even of prohibited goods in British warehouses on special security for reëxportation; and permits the transfer of goods in the warehouse, without requiring payment of the duties, until they are withdrawn for use. If the goods are destroyed by inevitable accident before they are withdrawn, although the government does not stand insurer for their safety, the duties are uniformly remitted. A clear analysis of the warehousing provisions is given in 1 Bell's Com. 187-190, 5th edit., and in McCulloch's Dictionary of Commerce, 2d edit. art. Warehousing System, where the statute of 3 and 4 William IV. is given at large, with its numerous and detailed provisions.

The New York chamber of commerce, in November, 1842, prepared and sent a memorial to congress in favor of establishing the warehousing system in the United States; and in addition to powerful considerations in favor of it, the memorial suggested that the warehouse, or dock warrants, or storage receipts, were in England transferable paper, and the holder was regarded as owner of the goods. A flexible and desirable security, representing actual property, was thus thrown into commercial circulation.

See Phillips v. Huth, 6 Meeson & Welsby, 572, on the construction of the factors' act of 6 Geo. IV. The congress of the United States, in August, 1846, ch. 84, established for the first time a warehouse system. The act declares that duties on all imported goods shall be paid in cash; but it provides that if duties are not paid, or if the importer or consignee shall make an entry in writing for warehousing the same, the goods shall be deposited in the public stores, or other stores agreed on, at the charge and risk of the importer or consignee, subject to their order, on paying the duties and expenses, to be secured by bonds with sureties, but not to be withdrawn except in specified parcels; and if satisfactory security be given that the goods shall be landed out of the jurisdiction of the United States, or on entry for reëxportation, and the payment of the expenses, &c., the goods may be shipped without payment of duties. That if any goods so deposited shall remain beyond one year, without payment of the duties and expenses as aforesaid, they shall be appraised and sold at auction, and the surplus proceeds, after payment as aforesaid, shall be paid over to the owner or consignee. Goods deposited may also be withdrawn and transported to any other port of entry in the United States, with the benefit of drawback under specified regulations.

(a) Craven v. Ryder, 6 Taunt. R. 433. Lord Alvanley, 3 Bos. & Pull. 47. Whitehouse v. Frost, 12 East's Rep. 614. Stoveld v. Hughes, 14 ib. 308.