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3. A merchant in Sweden contracted to sell timberto B. in England. B. chartered a ship to fetch the timber, which he also insured. B. having failed, the merchant gave notice to the master to stop the timber. Held, that the merchant was entitled to the timber, but not to the monies paid under the policy of insurance (i).
4. Coals were sold at Hull, and shipped on board a vessel chartered by the purchaser. By the terms of the contract, they were to be paid for in cash against a bill of lading in the hands of the vendor's agents in London. Held, that, the price being unpaid, the vendor could stop in transitu; for no property vested in the purchaser till the fulfilment of the condition (1)
$ 56. Who can stop The following are the persons who have the right to in transitu.
stop goods in transitu :
(1.) The consignor.
in England, whom he charges with a commission
fail while the goods are on their way to him (?). (3.) A consignor of goods, to be sold on the joint
account of the consignee and himself, can stop in transitu on the consignee becoming insol
vent (m). (4.) A purchaser of goods on his own credit for a third
party, who takes a bill of lading for delivery to his own order, and who subsequently indorses
them to that third party, can stop in transitu (n). A mere surety for the payment of the price of the goods cannot stop them in transitu (6). Neither can a stranger, unless the consignor ratify his act during the continuance of the transitus (p).
(1) Berndtson v. Strang, L. R., 3
(k) Moakes v. Nicholson, 19 C. B.,
(m) Newsom v. Thornton, 6 East, 17.
(n) The Tigress, 32 L. J., Adm. 97.
(0) Sifken v. Wray, 6 East, 371.
(p) Bird v. Brown, 4 Ex. 786 ; Newsom v. Thornton, 6 East, 17.
CASE. A London merchant ordered his Hamburg correspondent to ship him a quantity of bee's wax. The correspondent procured the wax on his own credit without disclosing the London merchant. He then shipped the wax to the London merchant at the cost price, charging only his commission. The London merchant became bankrupt. Held, the correspondent could stop in transitu (2).
$ 57. The vendor's right to stop in transitu will be defeated in Right to stop the following cases :
how de(1.) Where the goods are shipped on board a vessel feated.
belonging to the consignee, and by the terms of
consignee's risk (r).
house belonging to the consignee, provided the
the habit of using (t).
the assignees in bankruptcy of the consignee (u). (4.) Where the goods remain on the premises of vendor,
and he receives warehouse rent for them (w).
party, are appropriated to the vendee with the
order (y). But the right to stop in transitu will (9) Feise v. Wray, 3 East, 93. Scott v. Pettit, 3 B. & P. 469.
(r) Schotsmans v. Lancashire and (u) Leeds v. Wright, 3 B. & P. Yorkshire Rail. Co., L. R., 2 Ch. 320; Rowe v. Pickford, 8 Taunt. 83. Ap. 332; see “Cases" (1) at end (x) Hurry v. Mangles, 1 Camp. of this ģ; Van Casteel v. Booker, 2 452. Exch. 691 ; Key v. Cotesworth, 7 (y) Swanwick v. Sothern, 9 A. & Exch. 595.
E. 895; Harman v. Anderson, 2 (8) James v. Griffin, 2 M. & W. Camp. 243; Stoveld v. Hughes, 14 623.
East, 308; McEwan v. Smith, 2 H. (1) Ellis v. Hunt, 3 T. R. 464 ; of L. 309. see “Cases" (2) at end of this $ ;
not be defeated merely by the consignor giving a delivery order to the consignee, without any appropriation by the agent (y). The agent transferring the goods in his books into the name of the purchaser will amount to such an appropriation, provided nothing remains to be done to
ascertain the identity or quantity of the goods (y). (6.) Where the consignee on the arrival of the goods
requests the carrier to allow them to remain in his warehouse to be delivered out as he (the
consignee) shall require them (s). (7.) Where the goods have arrived at a place where
they are to be at the vendee's orders in the hands of his agents, though such be not their ultimate destination (a). But the transitus will not be ended by the arrival of the goods at a port of call for orders, though the vendee is by agreement to give the orders for their ultimate
destination (6). (8.) Where the vendee takes the goods out of the pos
session of the carrier into his own before their arrival at their destination (c). The shipmaster or other carrier cannot continue the transitus by refusing to deliver the goods to the consignee on
demand and tender of freight (d). (9.) Where the vendee exercises any act of ownership
over the goods (e), e.g. if he land the goods and send them to be repacked (f); or if he take samples from the goods, though they remain in
(y) See note (y), ante, p. 85.
(z) Allan v. Gripper, 2 Cr. & J. 218.
(a) Wentworth v. Outhwaite, 10 M. & W. 436; Dodson v. Wentworth, 4 M. & Gr. 1080.
(6) Fraser v. Witt, L. R., 7 Eq. 64 ; see “ Cases” (3) at end of this s.
(c) Whitehead v. Anderson, 9 M. & W. 518; London f. N. W. Rail. Co. v. Bartlett, 7 H. & N. 400; Forster v. Frampton, 6 B. & C. 107.
(d) Bird v. Brown, 4 Ex. 786.
(e) Dixon v. Yates, 5 B. & Ad. 313.
(f) l'alpy v. Gibson, 4 C. B. 837.
the shipmaster's or other carrier's possession (g);
or if he resell the goods (1). (10.) Where the vendor has voluntarily accepted a bill
of exchange in lieu of cash (i). (11.) Where the price of the goods has been paid to his
agent, even though the agent has misappropriated
the money (k). (12.) Where the goods were consigned to cover a loan,
or a balance due from the consignor on a running account (I); or to cover the consignor's accept
ances (m). (13.) Where the consignee has assigned the bill of
lading for valuable consideration to a bonâ fide transferee, provided the transferee did not know that the price of the goods had not been paid to
the consignor (n). In cases where the assignee had notice that the goods had not been paid for, or where he has not given value, the consignor's right to stop in transitu will not be defeated. The mere forbearance to sue on, or the release of, an antecedent claim will not be such a valuable consideration for the indorsement of a bill of lading, so as to defeat an unpaid vendor's right to stop in transitu (o).
The consignor will not be deprived of his right to stop
(9) Forster v. Frampton, 6 B. & (n) Lickbarrow v. Mason, 5 T. R. C. 107; Jones v. Jones, 8 M. & W. 683; The Marie Joseph, L. R., 1 431.
P. C. 219; Leask v. Scott, 2 Q. B. D. (%) Kemp v. Falk, 7 App. Cas. 376; see “Cases” (8) and (5) at 573; 47 L. T. 454 ; 31 W. R. 125; end of this s.
" Cases" (10) at end of this į ; (6) Cuming v. Brown, 9 East, Ex parte Golding, In re Knight, 13 506 ; Rodger v. The Comptoir d'EsCh. D. 628; 42 L. T. 270; 28 W. compte de Paris, L. R., 2 P. C. 393; R. 481.
but see Leask v. Scott, 2 Q. B. D. (i) Strong v. Hart, 6 B. & C. 160. 376, where the C. A. disagreed
(k) Bunny v. Poyntz, 4 B. & Ad. with the P. C., and held that a 568.
consideration past and not given at (1) Haille v. Smith, 1 B. & P. the time when the bill of lading 563 ; see “ Cases (7) at end of was transferred would be a suffi.
cient consideration; see “ Cases" (m) Vertue v. Jewell, 4 Camp. 31. (5) at end of this .
in transitu, merely because under an agreement with the consignee he is entitled to a lien upon the bills of lading under which they are shipped (P).
Again, the consignor's right to stop in transitu will not be defeated by part of the goods having been actually delivered to the consignee (q), unless the part delivery
were intended to operate as a delivery of the whole (»). Equitable So a mere pledge of the bill of lading by the consignee stoppage in transitu.
will not defeat the right. For then the consignor will still be able to stop in transitu, subject to the rights of the pledgee (8). This is sometimes called equitable stoppage in transitu. If the consignee pledge his own goods besides those mentioned in the bill of lading, his own goods will
be primarily liable to discharge the amount advanced (t). Vendor's Where the purchaser of goods resells them, the vendor, right to stop though he thereby loses his right to stop in transitu, can purchase
give what would have been, had there been no resale, a from a subpurchaser. valid notice of his intention to stop in transitu. And he
can then intercept, to the extent of his claim, the purchase
money still due from the sub-purchaser (u). Right to stop The vendor's right of stoppage in transitu will not be in transitu when not lost. lost in consequence of the vendee effecting a mortgage on
the goods (x), or transferring the shipping note (y) or a delivery order though for value (-). Neither will a foreign
(p) Ex parte Watson, In re Love, 5 Ch. D. 35 (C. A.); 46 L. J., Bk. 97; 36 L. T. 75; 25 W. R. 489.
(7) Ex parte Cooper, In re McLaren, 11 Ch. D. 68 (C. A.); see “Cases” (4) at end of this ý; Ex parte Gibbs, In re Whitworth, 1 Ch. D. 101; Hanson v. Meyer, 6 East, 614.
(r) Bunny v. Poyntz, 4 B. & Ad. 568; Hammond v. Anderson, 1 B. & P., N. R. 69; see
“ Cases" (6) at end of this s.
(8) In re l'estzinthus, 5 B. & Ad. 817; Spalding v. Ruding, 6 Beav. 376; 12 L.J., Ch. 503; see“Cases"
(9) at end of this s.
(u) Kemp v. Falk, 7 App. Cas. 573; 47 L. T. 454; 31 W. R. 125 ;
“ Cases" (10) at end of this ģ; Ex parte Golding, In re Knight, 13 Ch. D. 628; 42 L. T. 270; 28 W. R. 481.
(-x) Coventry v. Gladstone, L. R., 6 Eq. 44.
(y) Akerman v. Humphery, 1 C. & P. 53.
(2) Jenkyns v. Usborne, 7 M. & Gr. 678, 699; McEwan v. Smith, 2 H. of L. Cas. 309.