If goods be sent by order of the consignee, at his account and at his risk, and the consignor draws bills of exchange on him for the price, and indorses and transmits the bills of lading, the consignor cannot take possession of the goods at the place of destination, and insist upon immediate payment as the condition of delivery; the consignee being willing to accept the bills, and not having failed in his circumstances. Walley v. Montgomery, 3 East, 585. In the case of the Constantia, 6 Rob. 521, after a review of the law upon the subject, both of the general, civil law of Europe, and with reference to the municipal law of particular countries, Sir William Scott, lays it down as the result of the cases, and as an exposition of the principles of the mercantile law," that persons having accepted orders, and made a consignment, have not a right to vary the consignment, except in the sole case of insolvency. The alteration may be made provisionally, without actual insolvency; but if the insolvency do not take place, the act which has been done is a mere nullity, and the seller has exercised a power, to which the law does not ascribe any legal effect."

If a sale be legalized by license, though the vendor be an alien enemy, he may stop in transitu. 15 East, 419.

So, a principal may stop goods in transitu to his factor, though he be in advance, and has accepted bills, and paid part of the freight. 3 T. R. 119. But as a lien once parted with cannot be revived, a factor cannot stop in transitu, having parted with the possession. 1 East, 4. 3 East, 100. An actual repossession is not necessary, but a claim and endeavour to get the goods by the vendor is sufficient. 2 B. and P. 462. But the bankruptcy of the consignee is not, of itself, a countermand. 3 B. and P. 471.

II.-Under

what circumstances subsequent to the contract, or after the goods have passed out of the possession of the vendor.

1. If the subject of the sale be in a mass with other matter not sold; for example, if it be part of a liquid contained in a vessel; it is conceived no delivery short of the actual separation will defeat the right of the vendor. 13 East, 525. So, if goods in mass, previous to delivery, are to be sorted, numbered, and weighed, the delivery of part from the mass will not divest

the right of stopping the remainder. 6 East, 614. 11 East, 210. Notwithstanding an order to deliver have been given to the wharfingers, and entered in their books. 2 M. and S. 397. So, in all cases where the goods are not in a deliverable state, and further acts are necessary to be done by the seller to make them so. Thus, where A. contracted to sell to B. fifty hogsheads of sugar, called double loaves, at 100s. per cwt. to be delivered free on board a particular ship, and B. sold to C. by the same description, and A. assented to the re-sale, the sugar not having been delivered or re-weighed, it was holden that C. could not recover for it in trover against A., the first vendor. Austen v. Craven, 4 Taunt. 464. The case of Whitehouse v. Frost, 12 East, 614, may appear, on the first view, inconsistent with some of the propositions stated in this note, and at variance with the last case; but a closer inspection will warrant the principles laid down, and reconcile the cases. In the sale of the oil, in Whitehouse v. Frost, it was, from the date of the contract, to be at the purchaser's risk. Next, the specific oil was in existence, contained in a particular place

Harman v.
Harman v. Meyer,

and vessel named; Bancroft and Dutton, the original vendors, had made a complete transfer of the oil to the Frosts, the first vendees; they (D. and B.) had received the price, and executed the contract-as between those parties, therefore, no right of stoppage in transitu could exist.-When the Frosts sold to Townsend (whose interests the plaintiffs claimed as assignees) they gave an order on D. and B. to deliver to him: D. and B. indorse their acceptance on this order; and thereby, in the language of the Court, "attern to the sale, and become bailees to Townsend." Now, although something remained to be done between Townsend, and D. and B. who had the custody of the oil, before Townsend could be put in separate possession of the part sold; yet, as between Townsend and the Frosts, nothing remained to perfect the sale; the order of delivery being simply to deliver. D. and B., therefore, by the acceptance of the order having admitted that they held the oil as the property of Townsend, he had a right to take it without the interference of the Frosts. In a word, the question was between different parties.

So, in Shipley v. Davis

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 no 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 I 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 In this last case, Heath J. said, 66 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 wit 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. 1 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.

III.-What shall defeat this

right.

In the undermentioned cases, the actual or virtual delivery being complete, and the contract executed, the right of stoppage in transitu is divested.

2.

1. Where goods are delivered to a packer appointed by the vendee, to forward to any port the latter may appoint, and are opened and examined by the vendee's agent. 3 B. and P. 320. 5 East, 175. Where a ship has been hired by the consignee for a term of years, fitted out, victualled, and manned by him, his property put on board, and sent on a mercantile adventure, delivery of goods on board is equivalent to a delivery into his warehouse, and the right of stoppage is gone. Fowler v. M'Taggart, cited 7 T. R. 442. 3. So, delivery to a warehouseman, to whom the vendee pays warehouse rent, though they have not reached their ultimate destination. 3 B. and P. 127. 14 East, 308. 4. So, if the vendor receive of the vendee warehouse rent for the goods remaining in the warehouse, beyond the period at which they ought to have been removed. 1 Camp. 452. 5. So, where with the privity

of the vendor, the wharfinger in whose custody the goods are, charges the vendee with warehouse rent. 2 Camp. 243. 6. So, if the vendee receive from the vendor an order of delivery which he lodges with the wharfinger, though no transfer be made in the wharfinger's books, ibid. provided nothing more is to be done but to make the delivery; otherwise, if the goods are to be weighed, &c. vide supra. 7. So, the change of mark from A. to B. on bales of goods in a warehouse, by the direction of the parties, was held by the House of Lords, in a modern case, to operate as an actual delivery. Per Lord Ellenborough, 14 East, 313. 8. In the same manner, when timber, to be paid for by a bill at a future day, is marked by an agent of the vendee, whilst lying at the wharf of the vendor, with his concurrence and assent, and a part delivery is made, which is sent off to the vendee's order, the right of stoppage is gone, both as to that part delivered, though it should not have reached its ultimate destination, and as to the residue. Ibid. In this case it is to be observed that two things concurred to divest the right of the vendor; a part de

livery, and a mark put upon the timber with the consent of the vendor. 9. So, the marking of goods by purchasers at the time of the contract was held to take the case out of the statute of fraud, and to be a delivery and taking possession by the vendees. 1 Camp. 235. But quære if this alone would defeat the right of stoppage in transitu? 10. So, a part delivery under a bill of lading to a sub-vendee, upon the arrival of the ship, was held to be equivalent to a full delivery. 2 H. B. 504. 1 N. R. 69. Compare this case with Hanson v. Meyer, cited supra. 6 East, 614. The distinction seems to be, that in the former case part was delivered in the name of the whole, and nothing remained to be done pre

vious to the delivery of the remainder, but the mere act of delivery; whilst in Hanson v. Meyer, though part of the starch was delivered, the undelivered residue was yet to be weighed. 11. So, if the assignee of the vendee put his mark upon the goods whilst they are at an inn, in their way to the vendee. 3 T. R. 464. Semble, such inn must be their ultimate stage.

How far the assignment of a bill of lading, by the consignee to a third person, defeats or limits the right of the consignor to stop in transitu, vide Lickbarrow v. Mason, 2 T. R. 63. 6 East, 20. 36. n. Newsom v. Thornton, 6 East, 17. Cumming v. Brown, 9 East, 506, and the cases there cited.