sistent with dealing on credit. What is stoppage in transitu. Effect of stoppage in transitu. only subsist when payment is to be made in ready money, or where there is a bargain that security shall be given. When the vendor takes a promissory note of the vendee he divests himself of the lien, and should the promissory note remain outstanding in the hands of third parties he cannot revive it (a). § 2. Stoppage in Transitu. Stoppage in transitu is the right of the vendor to resume the possession of the goods sold and not paid for, so long as they are on their way to the vendee, and prior to his acquiring possession of them, where the vendee has become insolvent. Stoppage in transitu differs from lien, in that the right of lien may be exercised only as long as the vendor is in possession of the goods, and ceases the moment he parts with them, and the right of stoppage in transitu commences from the moment the vendor parts with the goods, and ceases upon their actual or constructive delivery to the vendee. Stoppage in transitu can only take place while the goods are on their way; if they once arrive at the termination of their journey, and come into the actual and constructive possession of the consignee, there is an end of the vendor's right over them. The effect of a stoppage in transitu is not to rescind the contract but only to replace the vendor in the same position as if he had not parted with the possession of the goods. The vendor will still possess a right of lien on the goods for the price, and the vendee a right on the goods upon payment of the price (b). When the property in the goods has never passed by the contract, the seller will, by the exercise of the right of stoppage in transitu resume the complete and absolute disposal of the goods, and if the property has already passed to the vendee then the vendor will by the exercise of such right resume only the right of possession over the goods (c). The right of stoppage in transitu supersedes the owner's right of lien for a general balance of accounts due by the consignee, but not the right of lien upon his carriage (d). (a) Bunney v. Poyntz, 1 Nev. & M., 229; 4 B. & Ad. 568. (b) Wentworth v. Outhwaite, 10 M. & W. 436; Lickbarrow v. Mason, 2 T. R. 63; 6 East, 27. (c) James v. Griffin, 2 M. & W. 623; Rhode v. Thwaites, 6 B. & C. 388. (d) Oppenheim v. Russell, 3 B. & P. 42; Morley v. Hay, 3 M. & Ry. 396. exercise the The right of stoppage in transitu may be exercised by Who may the consignor, or by the vendor, or by his agent duly autho- right. rised (a). A stoppage in transitu by an unauthorised person, professing to act for the seller, is inoperative, though ratified by the seller, if such ratification be after the period during which the seller could have stopped in transitu (b). The right of stoppage in transitu is in the seller, not in the buyer. The buyer may countermand the order, if in time, and with the consent of the seller he may rescind the sale; but if in insolvent circumstances he cannot stop the goods in transitu without committing an act of improper preference to the vendor to the prejudice of other creditors. be exercised. To whom the notice should be given. The right of stoppage in transitu may be exercised not only How it is to by taking possession of the goods while on their way, but by a notice to the carrier not to deliver the goods. But the notice, to be effectual, must be given either to the person who has the immediate custody of the goods, or to the principal whose servant has the custody, at such a time and under such circumstances as that he may, by the exercise of reasonable diligence, communicate it to his servant in time to prevent the delivery to the consignee (c). The right may be exercised so long as the goods sold remain unpaid for. A partial payment will not put an end to the right. The effect of a partial payment is only to reduce the lien pro tanto. Even where credit has been given, and a bill or note has been taken in payment, and the same has not become due, the vendor still preserves his right to stop the goods, if the consignee has become insolvent (d). So where there are mutual accounts, and the consignee of goods becomes insolvent, the consignor may stop them in transitu without waiting the final adjustment of accounts (e). But in all cases, to justify the exercise of such a right by which the vendor is allowed to depart from his contract, the vendee must be bankrupt or insolvent. Duration of the right. The right of stoppage in transitu ceases upon the arrival How defeated. (a) Feise v. Wray, East, 97; Nesome v. Thornton, 6 East, 17; Hawkes v. Dunn, 1 C. & J. 519; Cross (Ex parte), 1 Fonb. N. R. 215. (b) Bird v. Brown, 4 Exch. 786. W. 518. (d) Feise v. Wray, 2 East, 93; Edwards v. Brewer, 2 M. & W. 375. (e) Wood v. Jones, 7 Dow. & Ry. 126. What constitutes a delivery. Delivery of part. Where the goods are in the hands of a carrier. and delivery of the goods in the consignee's hands. The goods cease to be in transitu when they are in the hands of the vendee as owner, whether that right of ownership has been claimed or exercised by the arrival of the goods at their final place of destination, or by the delivery at the warehouse of the vendee, or by his personally intercepting the goods during their passage (a). A mere demand of the vendee, without any delivery before the voyage has completely terminated, does not deprive the consignor of his right of stoppage (b). Nor will the right of the consignor to stop the goods in transitu be divested by the goods, while in their transitu, being attached by process of foreign attachment at the suit of a creditor of the consignee (c). The arrival of the goods at the place of destination is the first criterion to judge whether the goods are in the constructive possession of the vendee (d). A constructive delivery to the vendee is sufficient to defeat the right, provided the goods have arrived at the final place of destination (e). An act of marking, or taking samples, or the like, without any removal from the possession of the carrier, though done with the intention to take possession, does not amount to a constructive possession, unless accompanied with such circumstances as to denote that the carrier was intended to keep, and assented to keep the goods, in the nature of an agent, for custody (ƒ). The delivery of part of a cargo in the progress of and with a view to the delivery of the whole, divests the vendor's right, but the mere delivery of part to the vendee, when the carrier meant to separate that part from the remainder, would not put an end to the right to stop in transitu (g). So long as the goods remain in the hands of the carrier as middleman, there is a presumptive evidence that the stoppage in transitu is not lost, and circumstances must show that he (a) James v. Griffin, 2 M. & W. 632; Foster v. Frampton, 6 B. & C. 107; Wentworth v. Outhwaite, 10 M. & W. 450. (b) Jackson v. Nichol, 5 Bing. N. C. 519. (c) Smith v. Goss, 1 Camp. 282. 1066. (e) Ellis v. Hunt, 3 T. R. 464. (f) Bunney v. Poyntz, 4 B. & Ad. 570; Ellis v. Hunt, 3 T. R. 464. (g) Bunney v. Poyntz, 4 B. & Ad. 570; Tanner v. Scovell, 14 M. & W. 38. stands towards the goods in a new character, under a special agreement to hold them as a bailee of the vendee to defeat the right (a). If the vendee is in the habit of using the warehouse of a wharfinger or of a packer as his own, and make that the repository of his goods, and dispose of them there, the transitus will be at an end when the goods arrive at such warehouse (b). When goods are delivered into a ship chartered by the vendee, who afterwards becomes a bankrupt, the vendor's right to stop in transitu is lost; but when they are shipped to the order of the consignor only, the property does not pass, and the stoppage in transitu is not defeated (c). The mere delivery of goods on board a vessel, to be delivered to the vendee, does not divest the vendor of his right to stop in transitu; but if they are so placed on board in order that they be transported to a foreign market, for the account of the vendee, the right is lost (d). a The right to stop the goods in transitu is lost when the consignee has assigned the bill of lading to a third person for valid consideration (e). If the bill of lading be merely pledged, the vendor may yet claim the right, and will be entitled to an interest in the goods, subject to the right of the pledgee (ƒ). But if the assignee of the bill of lading know that the consignee was insolvent, and took the assignment of the bill of lading for the purpose of defeating the right of the vendor to stop the goods in transitu, then the vendor's right will not be defeated (g). FOREIGN LAWS. France. When a sale has been made conditional upon the payment of the goods, if, in the interval between the time of the contract and the time when the payment is to be made, the (a) Whitehead v. Anderson, 9 M. & W. 535; Dixon v. Baldwen, 5 East, 175; Coates v. Railton, 6 B. & C. 422; Nicholls v. Le Feuvre, 2 Bing. N. S. 81. (b) Tucker v. Humphrey, 1 M. & P. 293; Scott v. Petit, 3 B. & P. 472. (c) Wait v. Baker, 2 Exch. 1; Fowler v. M'Taggart, cited in Hodgson v. Ley, 7 T. R. 442. (d) Stubbs v. Lund, 7 Mass. 457; VOL. I. Fowler v. Kymer, 3 East, 396; Van (e) Vertue v. Jewell, 4 Camp. 31; (f) In the matter of Westzinthus, 5 B. & Ad. 817. (g) Cuming v. Brown, 9 East, 506. Constructive delivery. purchaser become bankrupt, the seller may refuse to fulfil the contract, unless the assignees should pay the amount on behalf of the bankrupt. This right may be exercised so long as the goods are still in the vendor's hands. But even where the goods are no longer in the vendor's hands, if he has sent the goods to be delivered to the buyer at another place, so long as they are in Revendication, transitu, and not delivered, they may be stopped. This stoppage or stoppage in transitu. in transitu is an exceptional privilege, granted to the seller who has not received the price of the goods sold. Where the merchant stopping such goods has received bills or notes for the same, which have not been paid, in consequence of the bankruptcy, it must be seen whether, by taking such bills, it was intended to extinguish the original obligation. Where no such intention appears, the stoppage in transitu may be exercised. The simple circumstance that the price was paid by a cheque or a bill is not sufficient to destroy the right. As the stoppage in transitu can only be effected so long as the thing sold has not been delivered in the warehouse of the buyer, it is necessary to see what is meant by such delivery. There are things which are not susceptible of a literal delivery, such as the sale of goods in a warehouse, of which the purchaser becomes the lessee. The delivery in such a case consists in putting the purchaser in possession of the same, and as soon as he has established himself in it, the warehouse becomes his own, and the stoppage is at an end. Where the merchandises are in a public place belonging neither to the buyer nor the seller, other circumstances must be taken into account. Should the goods have been left to the risk of the buyer from the time of the contract, if the seller did not bind himself to send them to any other place, it is natural to consider that they are in a place which became as the warehouse of the purchaser. So long as the merchandises are in transitu, and before they have entered the warehouse of the buyer, whether they have been sent direct to his warehouse or they have been shipped on board a vessel to his direction, the goods may be stopped. Where they reach the hands of an agent, if he is charged by the buyer to receive and sell them, the transitus is at an end. If he is only charged to keep them temporarily, and to forward them to the buyer, the transitus continues. When the goods have been sold before their arrival, upon the invoice and bill of lading, or carriage note, signed by the consignor, and Right lost goods are |