would be totally unable to pay, in a case like this, when the debt fell due. To require the seller to deliver the goods under such circumstances, would be to require him to throw away his goodsin effect, practically would be to deny him the right to resume possession before delivery-and at the same time there exists a certainty, or a reasonable one at least, that he would never be paid for them-probably a certainty that if delivered they would at once, or in a short time, be appropriated by other creditors. This cannot be the law in such cases, in a system professing to be based on reason and have for its aim the attainment of justice.

His Honor, the Circuit Judge, made the whole case turn with the jury on the question whether the party had been shown to be actually insolvent on the 10th of October, 1875, when the goods were delivered. They did not go to protest until the 23d of December after this, but it is clear from the proof, so far as this record shows, that the parties were in such condition that the seller would have had no prospect of receiving payment for his goods at the time his debt fell due; and this being so, we hold he might well exercise his right to stop them, and resume his possession.

It is insisted, however, that the fact that, after this wrongful delivery, the plaintiffs sued on their account, as for a debt due them for the goods sold, estops them from recovering against the company. This would go on the idea, that the exercise of the right of stopping in transitu is a rescission of the contract of sale, and a suit for the price would be a waiver of this, and an afirmance of the sale.

Our first impression was that this might present some difficulty, but upon examination of the authorities, it seems now well settled, that the exercise of the right to stop is not a rescission of the sale, but simply places the parties, as nearly as may be, in the same situation they would have been if the vendor had nct parted with the possession. See Wait, vol. 5, p. 618, and numerous cases cited; also Indermaur's Principles of Common Law, p. 95; 10 M. & Welby, 436, 451, there cited.

The vendor, in exercising the right of stoppage, does not take possession of the goods as his own, but as the goods of the purchaser, on which the vendor has a lien for the uupaid purchase money. Wait, p. 618. It is simply, in other words, a resumption of his possession, the incidents of such possession of goods sold thereby attaching. This being so, it follows that the vendor, thus resuming his possession, may pursue any other remedies he may have to enforce his debt. In a case like the present, the carrier might well have insisted it was his duty to have done so, and probably interposed it as a defence to this action, if the plaintifs could have made their debt by law, and had failed in diligently prosecuting such legal remedy.

It follows, the court erred in its charge to the jury, and the judgment must be reversed and case remanded for a new trial.

See Wigton v. Bowley, 3 Am. & Eng. R. R. Cas. 328. Stoppage in transitu is an ordinary legal right, as to which a court of equity, unless by reason of some unusual circumstances, will not interfere. Straker v. Ewing, 34 Beav. 147.

The right of stoppage in transitu extends only over the goods themselves and the net proceeds of the sale, and not over the policy-moneys paid in respect of insurances effected by the vendee. Berndtson v. Strang, 3 L. R. ch. 588. A person who is a surety for the purchase money of the goods cannot exercise the right of stoppage in transitu. Siffkin v. Wray, 6 East, 371; Bachellor . Lawrence, 6 C. B., N. S. 543; De Wolf v. Linsdell, L. R., 5 Eq. 209. See also Lockhart v. Reilly, 1 De G. & J. 464; Phillips v. Dickson, 8 C. B., N. S. 391. The right may be enforced by one who has paid the price of the goods for the vendee, and taken from the vendee an assignment of the bill of lading as security for such advancement. Gassler v. Schepler, 5 Daly, 476.

A principal consigning goods to an agent has the right of stoppage in transitu on the latter becoming insolvent, even if the agent has made advances on the faith of the consignment (Kinloch v. Craig, 3 T. R. 119), or has a jont interest with the consignor. Newson v. Thornton, 6 East, 17. The right does not exist where the vendor is indebted to the vendee to the full value of the assignment in a precedent debt. Clark v. Mannon, 3 Paige, 373; Wood v. Roach, 1 Yeats, 177.

A merchant in England sent goods of a given value to a merchant at Quebec for sɛle on his account. Before the goods were sold, or the proceeds ascertained, the latter shipped three cargoes of timber to the former to credit on account; two of them arrived; against the third the consignor drew a bil for the amount whilst it was in transitu; in the interval the consignee dishonored the bill and became insolvent. Held, that the consignor had a perfect right of stoppage in transitu, and was not bound to wait until their mutual accounts were finally adjusted. Wood v. Jones, 7 D. & R. 126. Where goods are furnished to the agent of a bankrupt, on the agent's credit, he nay, to protect himself, stop them in transitu, and give them a new direction adversely to his principal; but if he gives them a fresh destination in furtherance of the usual course of business of the principal, they pass to the assignees as in the order and disposition of the bankrupt. Hawkes v. Iunn, 1 Tyr. 413; 1 C. & J. 519.

A. purchaed goods of a company, not intending to pay for them. The company deivered them to a carrier to deliver them, according to A.'s instructions, toC. The carrier afterward held the goods for C., at his request, as a warehouseman. A. becoming bankrupt, the company demanded the goods, and the carrier redelivered them, under the mistaken supposition that the tranЯtu was not yet over. In an action for trover against himHeld, that an quitable plea of rescission of the contract on the ground of A.'s fraud, to which C. was privy, would raise a good defence to the action, although the 'raud was not discovered till the cross-examination of C. at the trial of the action. Clough . London, etc., Ry. Co., 7 L. R. Exch. 26. Where the soppage in transitu is effected by one who is not authorized to act on behalf o the vendor, a subsequent ratification by the vendor will be too late if the tansit is ended, and the goods have come into the possession or under the cotrol of the vendee. Bird v. Brown, 4 Ex. 786; Davis v. McWhirter, 40 U. J., Q. B. 598.

In Hutchings. Nuner, 1 Moore, P. C., N. S. 243, the stoppage was made by the defendat, who had previously done business for the vendor as his

agent. The defendant had written to the vendor informing him of the insolvency of the buyer on March 26, and the vendor, on April 16, enclosed to the defendant a power of attorney to act for him. The defendant, before receiving this power, to wit, on April 21, assumed to act for the vendor, and effected the stoppage. Held, by the privy council, distinguishing this case from Bird v. Brown, supra, that the power actually despatched on April 16 was a sufficient ratification of the agent's act done on Apṛl 21, although the agent was not then aware of the existence of the authority. See Durgy Cement Co. v. O'Brien, 123 Mass. 12; Reynolds v. Boston, etc., R. R. Co., 43 N. H. 589; Bell v. Moss, 5 Whart. 189; Newhall e. Targaos, 13 Me. 93.

Where the vendor has received part payment for the goods he will still have the right of stoppage in transitu for the balance of purchase money due. Newhall v. Vargas, 13 Me. 93; Hodgson v. Loy, 7 T. R. 44); Feise . Wray, 3 East, 93; Edwards v. Brewer, 2 M. & W. 375; Van Casteel v. Booker, 2 Ex. 702. The right will not be lost by his receipt of notes or bills of exchange as conditional payment, even though he may have negotiated the bills so that they are outstanding in third hands. White c. Welsh, 396; Arnold v. Delano, 4 Cush. 53; Donath v. Bromhead, 7 Pa. St. 301; Hays v. Monille, 14 Pa. St. 148; Bell v. Moss, 5 Whart. 189; Nevhall v. Vargas, 13 Me. 93; Dixon v. Yates, 5 B. & Ad. 345; Kinloch v. Craig, 4 Brg. P. C. 47; Feise v. Wray, 3 East, 93; Edwards v. Brewer, 2 1. & W. 375; Patten v. Thompson, 5 M. & S. 350; Hodson v. Loy, 7 T R. 440; Miles v. Gorton, 2 C. & M. 504; Lewis v. Mason, 36 U. C., Q. B. 59.

But where the vendor has taken the vendee's acceptance in full payment, the goods cannot be stopped in transitu, unless the acceptances have been dishonored. Davis v. Reynolds; Rucker v. Donovan, 13 Kan. 257 Eaton v. Cook, 32 Vt. 58.

A. being indebted to B. on balance of accounts, including bill still running, accepted by B. for A. consigned goods to B. on account & this balance. Held, that A. had a right to stop the goods in transitu upo. B. becom ing insolvent before the bills were paid. Vertue v. Jewell, 4 Camp. 31; compare Patten v. Thompson, 5 M. & S. 350; Kinloch v. Craig, T. R. 786; Wood v. Roach, 1 Yeates, 177; Clark v. Mauran, 3 Paige, 37; Wood . Jones, 7 D. & R. 126.

If only a part of the goods are delivered, the right of stoppag in transitu will exist as to the balance. Dixon v. Yates, 5 B. and Ad. 31% Tanner . Scovell, 14 M. & W. 28; Buckley v. Furniss, 15 Wend. 137 Cabeen ɛ. Campbell, 30 Pa St. 264; White v. Welsh, 38 Pa. St. 396. Bu stoppage of a portion of the goods will not affect the claim of the vendee toa portion of the consignment which comes into his possession. Wentworth. Outhwaite, 10 M. & W. 436. But the delivery of a part will not operatas a delivery of the whole, or preclude the right of the vendor to stop any prtion not actually reduced to possession by the purchaser. Mohn v. Bosta, etc., R. R. Co., 106 Mass. 76; White v. Welsh, 38 Pa. St. 396; Buckley. Furniss, 17 Wend. 504; Mills v. Gordon, 2 C. & M. 509; Tanner v. Scoell, 14 M. &

W. 28.

The essential feature of a stoppage in transitu is that the gods should be at the time in the possession of a middleman, or of some peron intervening between the vendor who has parted with, and the purchase who has not yet received them. Schotsman v. Lancashire, etc., Ry. Co L. R., 2 Ch. App. 332.

The goods are liable to stoppage so long as they remain possession of the carrier. Mills v. Ball, 2 B. & P. 457; James v. Griffin, M. & W. 633; Lickbarrow v. Mason, 1 Smith's L. C. 699; Reynolds v. Boson, etc., R. R. Co., 43 N. A. 591; Atkins v. Colby, 20 N. H. 154; Whiter. Mitchell, 38 Mich. 390. See Wigton v. Bowley, 3 Am. & Eng. R. R. Cas328.

A delivery, actual or constructive, of the goods to vendee or his servant or agent will defeat the right of stoppage in transitu. Ogle v. Atkinson, 5 Taunt. 759; Bolton v. Lancashire, etc., R. R. Co., 1 L. R., C. P. 431; Turner v. Liverpool Docks Co., 6 Ex. 543; Van Casteel v. Booker, 2 Ex. 691; Ellis v. Hunt, 3 J. R. 464; Dixon v. Baldwin, 5 East, 175; Benedict v. Schaettle, 12 Ohio St. 521; Covel v. Hitchcox, 23 Wend. 611; Buckley v. Furniss, 15 Wend. 137; Mottram v. Heyer, 5 Denio, 629; Harris v. Pratt, 17 N. Y. 249; Aguirre v. Parmelee, 22 Conn. 473; Moses v. Boston, etc., R. R. Co., 24 N. H. 71; Smith v. Nashua R. R. Co., 27 N. H. 86; Clark v. Meedles, 25 Pa. St. 338; McCarthy v. N. Y., etc., R.R. Co., 30 Pa. St. 247; Wood v. Crocker, 18 Wis. 345; Alabama, etc., R. R. Co. v. Kidd, 35 Ala. 209; Michigan, etc., R. R. Co. v. Ward, 2 Mich. 539; Moses v. Boston, etc., R. R. Co., 32 N. H. 523.

Where the goods come into the hands of a shipping agent of the vendee, who has no authority to dispose of them at his discretion, but only holds them to await further directions from the vendee as to the time and conveyance by which to ship them to such vendee at a place previously determined the vendee's control over the goods is not terminated. Harris v. Pratt, 17 N. Y. 249; Caheen v. Campbell, 30 Pa. St. 254; compare Parker v. McIvers, 1 Desaussure, 274.

The actual delivery to the vendee or his agent, which puts an end to the transitu or state of passage, may be at the vendee's own warehouse, or at a place which he uses as his own, though belonging to another, for the deposit of goods. Scott v. Pettit, 3 B. & B. 469; Rowe v. Pickford, 8 Taunt. 83; Frazer v. Hilliard, 2 Strob. 309.

At a place where he means the goods to remain, until a new destination is communicated to them by orders from himself. Dixon v. Baldwin, 5 East, 175; Rowe v. Pickford, 1 Moore, 526; Morley v. Hay, 3 M. & R. 696; Harris t. Pratt, 17 N. Y. 249; Biggs v. Barry, 2 Curtis, 259; Guilford v. Smith, 30 Vt. 49; Caheen v. Campbell, 30 Pa. St. 254; Rowley v. Bigelow, 12 Pick. 307.

By the vendee's taking possession at some point short of the original intended place of destination. James v. Griffin, 1 M. & W. 20, 2 M. & W. 633; Foster. Frampton, 6 B. & C. 107; Mohr v. Boston, etc., R. R. Co., 106 Mass. 67; Durgy Cement Co. v. O'Brien, 123 Mass. 12; Jordan v. James, 5 Ohio, 89; Wood v. Yeatman, 15 B. Mon. 270.

In Leeds . Wright, 3 B. & P. 320, the London agent of a Paris firm had in the packer's hands in London goods sent there by the vendor from Manchester, under the agent's orders; but it appeared that the goods were at the agent's discretion, to be sent where he pleased, and not for forwarding to Paris; and it was held that the transitu was ended.

In Scott v. Pettit, 3 B. & P. 469, the goods were sent to the house of the defendant, a packer, who received all of the buyer's goods, the buyer having no warehouse of his own; and there was no ulterior destination. Held, that the packer's warehouse was the buyer's warehouse, the packer having no agency except to hold the goods subject to the buyer's orders.

In Valpy v. Gibson, 4 Č. B. 837, the goods were sent to a forwarding house in Liverpool by order of the buyer, to be forwarded to Valparaiso; but the Liverpool house had no authority to forward till receiving orders from the buyer. The buyer ordered the goods to be relanded after they had been put on board, and sent them back to the vendor, with orders to repack them into eight packages instead of four; and the vendors accepted the instructions, writing, we are now repacking them in conformity with your wishes.' Held, that the right of stoppage was lost; that the transitu was at an end; and that the redelivery to the vendor for a new purpose could give him no lieu. See also Dodson v. Wentworth, 4 M. & G. 1080; Cooper v. Bill, 3 H. & C. 722; Smith v. Hudson, 6 B. & S. 431; Rowe v. Pickford, 8 Taunt. 83;

Sawyer v. Joslin, 20 Vt. 172; Covell v. Hitchcock, 23 Wend. 611; Biggs t. Barry, 2 Curtis, 259.

The question as to whether a warehouseman received goods as the agent of the vendor or the vendee, is a question of fact for the jury to decide. Hoover v. Tibbitts, 13 Wis. 199.

The wrongful delivery of the goods to one not entitled to receive them will not preclude the right of stoppage in transitu. Kitchen v. Spear, 30 Vt.545. But if a third person who gives bona fide value obtains possession of the goods by a bill of lading which has come into the vendee's possession by the assent of the vendor, then the right of stoppage ceases. Kemp . Canavan, 15 Ir. C., L. R. 216; Dows v. Greene, 24 N. Y. 638; Rawls v. Deshler, 4 Aff. App. Cas. 12; Newhall v. Central Pacific R. R. Co, 51 Cal. 345, 21 Am. Rep. 713; Sawyer v. Joslin, 20 Vt. 172; Kitchen v. Spear, 30 Vt. 545; Seymour v. Newton, 105 Mass. 275; Secomb v. Nutt, 14 B. Mon. 324; Winslow v. Norton, 29 Me. 421; Lee v. Kimball, 45 Me. 172; Pratt v. Parkman, 24 Pick. 42; Atkins v. Colby, 20 N. H. 154; Audenreid v. Randall, 3 Cliff, 99. But if the agent has authority to give them a new destination from that originally intended the delivery is complete. Wood v. Yateman, 15 B. Mon. 270.

If the goods while in transitu are attached by a creditor of the vendee, the right of the vendor to stoppage in transitu will not be superseded. Dickman v. Williams, 50 Miss. 500; Morris v. Shryock, 50 Miss. 590; Seymour v. Newton, 105 Mass. 272; Durgy Cement Co. v. O'Brien, 123 Mass. 12; Buckley v. Furniss, 15 Wend. 137; Clark v. Lynch, 4 Daly, 83; Calahan v. Babcock, 21 Ohio St. 281; Newhall v. Vargas, 15 Me. 314; Hays v. Monille, 14 Pa. St. 48; O'Brien v. Norris, 16 Md. 122.

The carrier's interest arises only where he is required to deliver possession of the goods to the vendor. If the vendor's claim be good and the carrier refuses or neglects to recognize it, he becomes liable. Litt . Cowley, 7 Taunt. 169; Bohtlingk v. Inglis, 3 East, 381; Syeds v. Hay, 4 T. R. 260; Bierce v. Hotel Co., 31 Cal. 160; Jones v. Earl, 37 Cal. 630; O'Brien v. Norris, 16 Md. 122; Reynolds v. Boston, etc., R. R. Co., 43 N. H. 580.

The notice of the stoppage must be given to the person in possession of the goods, or if to his employer, then under such circumstances and at such time as to give the employer opportunity, by using reasonable diligence, to send the necessary orders to his servant. Whitehead v. Anderson, 9 M. & W. 518; Litt v. Cowley, 7 Taunt, 169; Ex parte Falk, 14 L. R., Ch. Div. 446; Bell v. Moss, 5 Whart. 189; Mottram v. Heyer, 5 Denio, 629; Ascher &. Grand Trunk Ry. Co., 36 U. C., Q. B. 609.

The notice may be given by the vendor himself, or by his agent. All that is required is some act or declaration of the vendor countermanding delivery. The usual mode is a simple notice to the carrier, stating the vendor's claim, describing the goods, and forbidding delivery to the vendee, or requiring that the goods he held subject to the vendor's orders. It is prudent for the carrier to retain possession of the goods until the validity of the asserted claim is established. Bohtlingk v. Inglis, 3 East, 381; Syeds v. Hay, 4 J. R. 260; Snee v. Prescot, 1 Atk. 250; Reynolds v. Boston, etc., R. R. Co. 591; Chandler v. Fulton, 10 Texas, 2; Bell v. Moss, 5 Whart. 189; Rucker . Donovan, 13 Kan. 251; Newhall v. Vargas, 13 Me. 93; Mottram v. Heyer, 5 Denio, 629; Bierce v. Hotel Co., 31 Cal. 160; Jones v. Earl, 37 Cal. 630; Seymour v. Newton, 105 Mass. 272; Clementson v. Grand Trunk Ry. Co., 42 U. C., Q. B. 263; Ascher v. Grand Trunk Ry. Co., 36 U. C., Q. B. 609.

As to how the right may be defeated, delivery of the goods by the carrier, and bills of lading, see Wigton v. Bowley and note; 3 Am. & Eng. R. R. Cas. 328, 330.

As to where goods are shipped through connecting carriers, and bills of lading issued by the first carrier, see Sutherland v. Second National Bank, infra.