Who can stop

in transitu.

3. A merchant in Sweden contracted to sell timber to 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 (k)

§ 56.

The following are the persons who have the right to stop goods in transitu :

(1.) The consignor.
(2.) A person abroad buying goods for a correspondent
in England, whom he charges with a commission
on the price, but whose name is unknown to the
vendor, can stop in transitu, if his correspondent
fail while the goods are on their way to him (7).
(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 (o). Neither can a stranger, unless the consignor ratify his act during the continuance of the transitus (p).

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 (q).

§ 57.

The vendor's right to stop in transitu will be defeated in Right to stop in transitu, 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

the bill of lading they are to be carried at the
consignee's risk (r).

(2.) Where the goods have been delivered at a ware-
house belonging to the consignee, provided the
the consignee took possession of them as owner (s);
or where they have been delivered at the wharf
or warehouse, which the consignee has been in
the habit of using (t).

(3.) Where the goods have been taken possession of by
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 (x).
(5.) Where the goods, being in the hands of a third
party, are appropriated to the vendee with the
consent of the vendor by means of a delivery
order (y). But the right to stop in transitu will

(q) Feise v. Wray, 3 East, 93.

(r) Schotsmans v. Lancashire and Yorkshire Rail. Co., L. R., 2 Ch. Ap. 332; see "Cases" (1) at end of this; Van Casteel v. Booker, 2 Exch. 691; Key v. Cotesworth, 7 Exch. 595.

(8) James v. Griffin, 2 M. & W. 623.

(t) Ellis v. Hunt, 3 T. R. 464; see "Cases" (2) at end of this §;

Scott v. Pettit, 3 B. & P. 469.

(u) Leeds v. Wright, 3 B. & P. 320; Rowe v. Pickford, 8 Taunt. 83. (x) Hurry v. Mangles, 1 Camp.

452.

(y) Swanwick v. Sothern, 9 A. & E. 895; Harman v. Anderson, 2 Camp. 243; Stoveld v. Hughes, 14 East, 308; McEwan v. Smith, 2 H. of L. 309.

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 (z).

(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 (b).

(8.) Where the vendee takes the goods out of the possession 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.

(b) Fraser v. Witt, L. R., 7 Eq. 64; see "Cases" (3) at end of this §.

(c) Whitehead v. Anderson, 9 M. & W. 518; London & 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) Valpy v. Gibson, 4 C. B. 837.

the shipmaster's or other carrier's possession (g); or if he resell the goods (h).

(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 (1); or to cover the consignor's acceptances (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 (0). The consignor will not be deprived of his right to stop

(n) Lickbarrow v. Mason, 5 T. R. 683; The Marie Joseph, L. R., 1 P. C. 219; Leask v. Scott, 2 Q. B. D. 376; see "Cases" (8) and (5) at end of this §.

(0) Cuming v. Brown, 9 East, 506; Rodger v. The Comptoir d'Escompte de Paris, L. R., 2 P. C. 393; but see Leask v. Scott, 2 Q. B. D. 376, where the C. A. disagreed with the P. C., and held that a consideration past and not given at the time when the bill of lading was transferred would be a sufficient consideration; see "Cases" (5) at end of this §.

88

Equitable stoppage in transitu.

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 ().

So a mere pledge of the bill of lading by the consignee will not defeat the right. For then the consignor will still be able to stop in transitu, subject to the rights of the pledgee (s). 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 (†). Where the purchaser of goods resells them, the vendor, right to stop though he thereby loses his right to stop in transitu, can give what would have been, had there been no resale, a valid notice of his intention to stop in transitu. And he can then intercept, to the extent of his claim, the purchasemoney still due from the sub-purchaser (u).

Vendor's

purchase

money due

from a subpurchaser.

Right to stop in transitu

The vendor's right of stoppage in transitu will not be 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.

(4) Ex parte Cooper, In re McLaren, 11 Ch. D. 68 (C. A.); see "Cases" (4) at end of this §; 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) In re Westzinthus, 5 B. & Ad. 817; Spalding v. Ruding, 6 Beav. 376; 12 L. J., Ch. 503; see "Cases"

(9) at end of this §.
(t) Ib.

(u) Kemp v. Falk, 7 App. Cas. 573; 47 L. T. 454; 31 W. R. 125; see "Cases" (10) at end of this §; 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.

(z) Jenkyns v. Usborne, 7 M. & Gr. 678, 699; McEwan v. Smith, 2 H. of L. Cas. 309.