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1815.

If goods be sent by order of If a sale be legalized by li

the consignee, at his account cense, though the vendor be WITHERS and at his risk, and the con- an alien enemy, he may stop

signor draws bills of exchange in transitu. 15 East, 419. Lys.

on him for the price, and in- So, a principal may stop goods dorses and transmits the bills in transitu to his factor, though of lading, the consignor can- he be in advance, and has acnot take possession of the cepted bills, and paid part of goods at the place of destina- the freight. 3 T. R. 119. But tion, and insist upon imme- as a lien once parted with candiate payment as the condition not be revived, a factor cannot of delivery; the consignee stop in transitu, having parted being willing to accept the with the possession. 1 East, bills, and not having failed in. 4. 3 East, 100. An actual his circumstances. Walley v. repossession is not necessary, Montgomery, 3 East, 585. but a claim and endeavour to In the case of the Constantia, get the goods by the vendor is 6 Rob. 521, after a review of sufficient. 2 B. and P. 462. the law upon the subject, both But the bankruptcy of the conof the general, civil law of signee is not, of itself, a counEurope, and with reference to termand. 3 B. and P. 471. the municipal law of particu

II.-Under what circumlar countries, Sir William Scott, lays it down as the re

stances subsequent to the consult of the cases, and as an

tract, or after the goods have exposition of the principles of

passed out of the possession the mercantile law, “ that

of the vendor. persons having accepted orders, 1. If the subject of the sale and made a consigoment, have be in a mass with other matter not a right to vary the con- not sold; for example, if it signment, except in the sole be part of a liquid contained case of insolvency. The alte- in a vessel; it is conceived ration may be made provision- no delivery short of the acally, without actual insolven

tual separation will defeat the cy; but if the insolvency do right of the vendor. 13 East, not take place, the act which 525. So, if goods in mass, has been done is a mere nallity, previous to delivery, are to and the seller has exercised a be sorted, numbered, and power, to which the law does weighed, the delivery of part not ascribe any legal effect.” from the mass will not divest

V.

the right of stopping the re- and vessel named; Bancroft 1815. mainder. Harman v. Meyer, and Dutton, the original ven6 East, 614. 11 East, 210. dors, had made a complete WITHERS Notwithstanding an order to transfer of the oil to the Frosts, deliver have been given to

Lys. the first vendees; they (D, and the wharfingers, and entered B.) had received the price, and in their books. 2 M. and S. executed the contract-as be. 397. So, in all cases where tween those parties, therefore, the goods are not in a deli

no right of stoppage in tranverable state, and further acts situ could exist. When the are necessary to be done by Frosts sold to Townsend (whose the seller to make them so. interests the plaintiffs claimed Thus, where A. contracted to as assignees) they gave an order sell to B. fifty hogsheads of on D. and B. to deliver to him: sugar, called double loaves, at D. and B. indorse their ac100s. per cwt. to be delivered ceptance on this order; and free on board a particular ship, thereby, in the language of the and B. sold to C. by the same Court, “ attorn to the sale, description, and A. assented to and become bailees to Townsthe re-sale, the sugar not hav. end." Now, although someing been delivered or re-weigh- thing remained to be done beed, it was holden that C. could tween Townsend, and D. and not recover for it in trover B. who had the custody of the against A., the first vendor. oil, before Townsend could be Austen v. Craven, 4 Taunt. put in separate possession of 464. The case of Whitehouse the part sold; yet, as between v. Frost, 12 East, 614, may Townsend and the Frosts, no. appear, on the first view, in. thing remained to perfect the consistent with some of the sale; the order of delivery propositions stated in this note, being simply to deliver. D. and at variance with the last and B., therefore, by the accase; but a closer inspection ceptance of the order having will warrant the principles laid admitted that they held the down, and reconcile the cases. oil as the property of TownsIn the sale of the oil, in White- end, he had a right to take it house v. Frost, it was, from the without the interference of the date of the contract, to be at Frosts. In a word, the questhe purchaser's risk. Next, the tion was between different par- . specific oil was in existence, ties. contained in a particular place So, in Shipley 7. Davis

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and another, 5 Taunt. 617, where ten ton of hemp out of thirty were sold, the order was to weigh and deliver. In that case the Court said, “ If any thing remain to be done between vendor and vendee, it is po delivery.”

So, in a bargain and sale of ten tons out of a merchant's stock, consisting of several large quantities of oil, in divers cisterns, in divers places, it was holden that trover would not lie for it, because there was no separation of the part sold from the rest of the stock; because the contract did not attach upon any particular parcel of oil; nor had there been any actual delivery. In this last case, Heath J. said, ( we do not pretend to reconcile Austen v. Craven (which was the case relied upon in argument) with Whitehouse v. Frost.White v. Wilks, 5 Taunt. 177. It is trusted that the attempt made in this note to reconcile the cases, upon an investigation of the principles, may be of use to the reader. 2. A right of stoppage may be exercised though bills be given in payment, unless expressly accepted as such. 7 T. R. 64. Sed quære, if before the right of stoppage in transitu in this case be exercised, there should not be probable grounds for

believing that the bills will turn out of no value. Can it be done capriciously? 3. Possession obtained by the consignee before the vessel has completed her voyage will not divest the right of stoppage in transitu. 1 Esp. N. P. 242. 4. Nor is this right divested by a foreign attachment at the suit of a creditor of the vendee. i Camp. 282. And a usage for land carriers to retain goods as a security for a general balance of accounts due from the consignee, will not divest this right of the consignor, upon paying the carriage of the particular goods only. 3 B. and P. 42. 5. Goods deposited at the king's warehouses, on their arrival, for the duties, under 26 G. 3. C. 59. may be stopped in transitu, though they have been claimed by the consignee. 2 Esp. 603. 6. So, whilst they remain in possession of the carrier, whether by water or land; also, whilst they are in any place of deposit, until they arrive at the actual or constructive possession of the consignee. 3 T. R. 466. 7. So, the master of a ship chartered wholly by the consignee, is a carrier in whose hands they may be stopped. 3 East, 381.

1815.

WITHERS

V. Lys.

of the vendor, the wharfinger III.- What shall defeat this

in whose custody the goods right.

are, charges the vendee with In the undermentioned cases, warehouse rent. 2 Camp. 243. the actual or virtual delivery 6. So, if the vendee receive being complete, and the con- from the vendor an order of tract executed, the right of delivery which he lodges with stoppage in transitu is divested. the wharfinger, though no

1. Where goods are deliver- trapsfer be made in the wharf. ed to a packer appointed by inger's books, ibid. provided the vendee, to forward to any nothing more is to be done port the latter may appoint, but to make the delivery; and are opened and examined otherwise, if the goods are to by the vendee's agent. 3 B. be weighed, &c. vide supra. and P. 320. 5 East, 175. 2. 7. So, the change of mark Where a ship has been hired from A. to B.on bales of goods by the consignee for a term of in a warehouse, by the direcyears, fitted out, victualled, tion of the parties, was held and manned by him, his pro- by the House of Lords, in a perty put on board, and sent

modern case, to operate as an on a mercantile adventure, actual delivery Per Lord delivery of goods on board is Ellenborough, 14 East, 313. equivalent to a delivery into 8. In the same manner, when his warehouse, and the right timber, to be paid for by a of stoppage is gone. Fowler bill at a future day, is marked v. M‘Taggart, cited 7 T. R. by an agent of the vendee, 442. 3. So, delivery to a whilst lying at the wharf of warehouseman, to whom the the vendor, with his concur. vendee pays warehouse rent, rence and assent, and a part though they have not reached delivery is made, which is sent their ultimate destination. 3 off to the vendee's order, the B. and P. 127. 14 Fast, 308. right of stoppage is gone, both 4. So, if the vendor receive of as to that part delivered, though the vendee warehouse rent for it should not have reached its the goods remaining in the ultimate destination, and as to warehouse, beyond the period the residue. Ibid. In this case at which they ought to have it is to be observed that two been removed. i Camp. 452.

1 Camp. 452. things concurred to divest the 5. So, where with the privity right of the vendor; a part de

1815.

WITHERS

Lys.

livery, and a mark put upon vious to the delivery of the re-
the timber with the consent of mainder, but the mere act of
the vendor. 9. So, the mark- delivery; whilst in Hanson v.
ing of goods by purchasers at Meyer, though part of the
the time of the contract was starch was delivered, the un-
held to take the case out of the delivered residue was yet to be
statute of fraud, and to be a weighed. 11. So, if the as-
delivery and taking possession signee of the vendee put his
by the vendees. i Camp. 235. mark upon the goods whilst
But quære if this alone would they are at an inn, in their
defeat the right of stoppage in way to the vendee. 3 T. R.
transitu ? 10. So, a part deli. 464. Semble, such inn must
very under a bill of lading to be their ultimate stage.
a sub-vendee, upon the arrival How far the assignment of a
of the ship, was held to be bill of lading, by the consignee
equivalent to a full delivery. to a third person, defeats or
2 H. B. 504. 1 N. R. 69. limits the right of the con-
Compare this case with Han signor to stop in transitu, vide
son v. Meyer, cited supra. 6

Lickbarrow v. Mason, 2 T.R. East, 614. The distinction 63. 6 East, 20. 36. n. Newseems to be, that in the former som v. Thornton, 6 East, 17. case part was delivered in the Cumming v. Brown, 9 East, name of the whole, and no- 506, and the cases there cited. thing remained to be done pre

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