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If goods be sent by order of If a sale be legalized by li
II.-Under what circum-
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 consignment, 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 nullity, 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
the right of stopping the re- and vessel named; Bancroft
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.
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 transfer 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 East, 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. things concurred to divest the 5. So, where with the privity right of the vendor; a part de
livery, and a mark put upon vious to the delivery of the re-