by any possible act of diligence, have prevented.43 But when the governmental power prevents the carriage of the goods to their destination until the duties are paid, it is the carrier's duty to take all practicable means to notify the consignees, and, failing in that, to notify the shippers of the situation. Meanwhile the carrier is at liberty to turn the goods over to the customs officers, or to store them in a suitable and reasonably safe place. If he fails in that duty and damage results, he will be liable for such damage.44

Sec. 756. Commendable motives of carrier no excuse for non-delivery.—Commendable motives on the part of the carrier and a sincere belief that he is subserving the public good in keeping the goods from the consignee will be no defense in an action by the consignee for the conversion of the goods. The carrier is not liable if the goods are taken from his possession by legal process against the owner, or if, without his fault, they become obnoxious to the requirements of the police power of the state, and are injured or destroyed by its authority; or where they are infected with contagious disease, or are intoxicating liquors intended for use or sale in violation of the laws of the state, which require their seizure or destruction. But where the goods are intended for a lawful purpose, and their sale is not unlawful, the carrier cannot constitute himself the judge as to whether public policy should preclude him from delivering the goods to the consignee. Thus in one case the plaintiff delivered to the defendant at Newark, Ohio, on January 1, 1885, a quantity of fire-arms and ammunition, to be transported to Shawnee, consigned to the plaintiff. The defendant did not transport the property to Shawnee, but retained and concealed it, and carried it out of the state. The plaintiff brought an action for the conversion of the goods. The answer of the defendant alleged that before and at the time the defendant received the property for transportation, a state of war and insurrection existed at and about Shawnee, where

43. Parker 1. Steamship Co., Hun, 423, 36 N. Y. Supp. 544. 76 N. Y. Supp. 806, 74 App. Div. 44. Pennsylvania Co. v. Railway 16; Howell v. Railway Co., 92 Co., 107 Ill. App. 386.

murder and other crimes were being committed; that the firearms and ammunition shipped to the plaintiff were to be used in aid of the insurrection, and for other criminal purposes, and that, under the advice and direction of the then governor of the state the defendant shipped the goods out of the state until May 4, 1885, when they were transported to Shawnee, and there stolen and carried away by the plaintiff and his associates. The court held that a common carrier who, having received goods to be carried to a designated place, transports them to another place to prevent their coming to the possession of the consignee, and deprives him of their use and possession, is liable for conversion of the goods; that, after such conversion, the consignee is under no obligation to receive the goods, and that it is no defense to his action for their value that they were tendered to him after the conversion and were then stolen without the negligence of the carrier.45

VII. STOPPAGE IN TRANSITU.

Sec. 757. ( 409.) Carrier may show stoppage to excuse delivery. Another excuse which the carrier may set up for the non-delivery of the goods is, that the vendor has exercised his right of stoppage in transitu. This right arises upon the discovery by the vendor, after the sale of the goods on a credit, of the insolvency of the buyer, and is said to be based on the plain reason of justice and equity, that one man's goods shall not be applied to the payment of another man's debts. If, therefore, after the vendor has delivered the goods out of his own possession, and has put them into the hands of the carrier for delivery to the buyer, he discovers that the buyer is insolvent, he may retake the goods, if he can, before they reach the buyer's possession, and thus avoid having his property applied to paying debts due by the buyer to other people. This right of the vendor of the goods is held to continue from the time he parts with their possession until they have come into the actual

45. Railroad Co. v. O'Donnell, 21 L. R. A. 117, 34 Am. St. Rep. 49 Ohio St. 489, 32 N. E. Rep. 476, 579.

possession of the buyer, and may be enforced by him, no matter into whose possession they may have come in the course of the transportation, at any time before their delivery to the buyer or his agent, or to a purchaser of them from the buyer, by a bona fide indorsement and transfer of the bill of lading. The right is highly favored by the law on account of its intrinsic justice, and prevails almost universally among civilized nations; but it arises only in favor of one who stands in the relation of vendor to the goods.1

Sec. 758. (§ 410.) How right exercised. No particular form or mode has been held necessary in the exercise of this right, and it has even been said that the vendor was so much favored in exercising it as to be justifiable in getting his goods back, by any means not criminal, before they reached the possession of an insolvent vendee. All that is required is some act or declaration of the vendor, or his agent, countermanding the delivery, and the usual mode is by a simple notice to the carrier, stating the vendor's claim, forbidding delivery to the vendee, or requiring that the goods shall be held subject to the vendor's orders.2 The vendor may, however, and sometimes does, resort to a possessory legal action, such as replevin or attachment, in the first instance, and takes the goods by legal process, either from the carrier himself or from some officer who has seized them for a debt of the vendee. Or resort may be had to a bill in equity, the jurisdiction of which to enforce the vendor's right of stoppage is said to be unquestionable.3

1. Branan v. Railroad Co., 108 Ga. 70, 33 S. E. Rep. 836, 75 Am. St. Rep. 26, citing Hutch. on Carr.; Delta Bag Co. v. Kearns, 112 Ill. App. 269, citing Hutch. on Carr.

2. Allen v. Railroad Co., 79 Me. 327; Reynolds v. The Railroad, 43 N. H. 580; O'Brien v. Norris, 16 Md. 122; Rucker v. Donovan, 13 Kan. 251; Bell v. Moss, 5 Whart. 189; Mills v. Ball, 2 Bos. & P. 457; Newhall v. Vargas, 13 Me.

93; Litt v. Cowley, 7 Taunt. 169; Newhall v. The Railroad, 51 Cal. 345; Howe v. Stewart, 40 Vt. 145; Blum v. Marks, 21 La. Ann. 268; McFetridge v. Piper, 40 Iowa, 627; Thompson v. The Railroad, 28 Md. 396; Covell v. Hitchcock, 23 Wend. 611; Jones v. Earl, 37 Cal. 630; Whitehead v. Anderson, 9 M. & W. 518; Pool v. Railroad Co., 23 S. C. 286.

3. Schotsmans v. Railway Co., L. R. 1 Eq. 349, L. R. 2 Ch. App.

Sec. 759. (§ 411.) Who may exercise the right-AgentWant of privity.—The notice may be given by the vendor himself or by his agent, and it is not necessary that the agent should have any especial authority to stop the goods. If he has authority to act for the vendor, either generally or for the purposes of the consignment in question, it is enough. But if the stoppage be ordered by a stranger, absolutely without authority, the act will be unauthorized, and cannot be ratified by the vendor after the goods have come to the possession of the vendee. It will therefore be proper for the carrier always to inquire into the authority of the person demanding the withholding of the goods from the consignee to act for the vendor; and if be ascertained that he acts without such authority, it will be the carrier's duty to disregard it and deliver them to the party for whom they were intended. But an admission by an agent of the vendor that he acts in the particular instance without authority will not be conclusive against the validity of the stoppage, because the law will look to the general nature and scope of his agency, and will not be governed by the opinion or admission of the agent.5 It is not in the nature of a lien, and therefore is not extended to other persons who have merely liens upon the goods, which cease as soon as they have parted with the possession. So it is said. that a consignor who is not the vendor, and between whom and the consignee no privity exists, cannot stop the goods in transit.6

332; Ford v. Sprowle, 2 A. K. Marsh, 528; Hause v. Judson, 4 Dana, 7.

4. Reynolds v. The Railroad, supra; Bell v. Moss, supra; Newhall . Vargas, supra; Chandler v. Fulton, 10 Tex. 2.

5. Bird t. Brown, 4 Exch. 786. 6. Memphis, etc. R. Co. v. Freed, 38 Ark. 614; Eaton v. Cook, 32 Vt. 58; Jenkyns v. Usborne, 7 M. & G. 678; Feise v. Wray, 3 East, 93.

In order that the vendor of

goods may exercise the right of stoppage in transitu, they must be in transit from him to his immediate vendee. Thus if one buys goods of another with direc tions to consign them to a third party, and the seller consigns the goods as directed, there being no privity between the vendor and such third party, the seller loses his right to stop the goods upon the insolvency of the one who has purchased from him. Neimeyer

Sec. 760. (§ 412.) To whom notice is to be given.—The notice must also be given to the person in possession of the goods; or, if to his employer or agent, then under such circumstances and at such time as to give to such employer or servant an opportunity, by the use of reasonable diligence, to send the necessary orders to the party who has the goods in his possession. As said by Parke, B.: "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 Litt v. Cowley, 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 a 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 the want of means of communication, to prevent that delivery, would be the height of injustice.s

Sec. 761. ($ 413.) Vendee must be insolvent-What constitutes insolvency.-The vendor can only exercise this right against one who is insolvent or bankrupt, and whose insolvent condition, though it may then have existed, was not known to him at the time of the sale, but was afterwards discovered ;9

Lumber Co. v. Railroad, 54 Neb. 321, 74 N. W. Rep. 670, 40 L. R. A. 534.

7. 7 Taunt. 169.

8. Whitehead v. Anderson, 9 M. & W. 518; Bell v. Moss, 5 Whart. 189; Poole v. Railway Co., 58 Tex. 134; Rosenthal . Weir, 170 N. Y. 148, 63 N. E. Rep. 65, 57 L. R. A. 527, affirming 66 N. Y. Supp. 841, 54 App. Div. 275.

Where the carrier has the shipper who desires goods to be stopped in transitu enter into an indemnifying bond and refuses to

allow him to send a dispatch over the public telegraph and undertakes to send the same over its own private wire and then negligently delays the sending of the dispatch so that the goods are delivered to the consignee, it cannot set up that the goods were beyond its line at the time, or its ignor ance of whose charge the goods were then in, and it is liable for loss occurring by reason of its negligence. Willock v. Railway Co., 79 Mo. App. 76.

9. Schuster v. Carson, 28 Neb.