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attachment (a), nor the lien of the carrier for his general balance as against the vendee (b), defeat his right to stop in transitu.
So the vendor will still have the right of stoppage in transitu, if a bill of exchange had been given for the price, though the bill is not at maturity (c). So payment of part of the price (d), or a sale of the goods on credit, though the credit has not expired (e), will not defeat his right to stop in transitu.
CASES. 1. Goods sold were shipped on board a ship belonging to the purchaser, but employed as a general trader. Four bills of lading were drawn, making the goods deliverable to the purchaser or his assigns. The vendor kept three, and the shipmaster the fourth. Held, that the delivery on board the purchaser's ship was delivery to the purchaser, so as to defeat any right to stop in transitu (f).
2. The assignee in bankruptcy of a consignee, went to the inn where the goods sold had been placed, and put his mark on them, but did not take them away because they were attached there by a creditor of the bankrupt. Held, that the consignor's right to stop in transitu was thereby defeated (9).
3. A., a merchant at Bahia, shipped a cargo of sugar by the order and at the risk of B., in a ship chartered by A. The ship arrived at Falmouth, its port of call for orders, and the master applied to A.'s agents, in London, for orders. The agents then asked B. for instructions as to the destination of the ship, but before they were given B. became insolvent, and thereupon A.'s agents stopped the cargo. Held, the transitus was not completed, and that the stoppage was good (h).
4. One hundred and fourteen tons of iron were consigned on board a ship chartered by the vendor. The bill of lading was made out in favour of the consignee or his assigns, he or they paying freight. After thirty tons had been delivered to the purchaser, the vendor
(a) Smith v. Goss, 1 Camp. 282. (e) Inglis v. Usherwood, 1 East,
(6) Oppenheim v. Russell, 3 B. & 515; Bothlingk v. Inglis, 3 East, P. 42.
381. (c) Feise v. Wray, 3 East, 93; (f) Schotsmans v. Lancashire and Patten v. Thompson, 5 M. & Sel. Yorkshire Rail. Co., L. R., 2 Ch. 350; Berndtson v. Strang, L. R.,
Ap. 332. 3 Ch. 588.
(9) Ellis v. Hunt, 3 T. R. 464. (d) Hodgson v. Loy, 7 T. R. 440. (h) Fraser v. Witt, L. R., 7 Eq.
gave notice to stop the unloading of the ship, part of the freight only having been paid. Held, that the notice to stop in transitu was given in time, the delivery of the thirty tons not operating as a constructive delivery of the whole (i).
5. In December, 1875, G. & Co. purchased from the defendant a shipment of nuts, to be paid for by an acceptance at three months. On 5th January, 1876, G. & Co. handed the bill of lading, which was indorsed in blank, to the plaintiff, in pursuance of their promise to give him cover for certain prior advances, such being a bonâ fide transaction. On the arrival of the ship on the 3rd February, the defendant sought to stop the nuts in transitu, G. & Co. having become insolvent. The plaintiff claimed them under the bill of lading. Held, the plaintiff had a good title as against the defendant(k).
6. A number of bales lying at a wharf were sold for an entire sum, to be paid for by a bill at two months. The wharfinger was ordered to deliver the goods to the purchaser, who went to the wharf, weighed the whole and took away several bales. On his subsequently being made a bankrupt, the vendor ordered the wharfinger to stop the remainder. Held, the purchaser had taken constructive possession of the whole, and that the vendor could not therefore stop in transitu (1).
7. A Liverpool merchant consigned a cargo to a London firm to cover an advance made by them. He then remitted them the invoice and the bill of lading indorsed in blank. The goods were prevented by an embargo from leaving Liverpool. On the merchant becoming bankrupt, the shipmaster delivered the goods to the assignees in bankruptcy. Held, that the London firm could maintain trover against the master (m).
8. A French firm sold, through their English agents, goods payable by bill at three months' date. The goods were shipped and a bill of lading, indorsed by the vendors, was handed to the purchasers in exchange for their acceptance. The bill of lading was subsequently obtained by fraud by a member of the purchaser's firm, who indorsed it to B. for value without notice of the fraud. Before the goods arrived here, the purchasers failed. Held, that the vendor's right to stop in transitu was defeated by the bona fide transfer to B. (nu).
(i) Ex parte Cooper, In re McLaren, (1) Hammond v. Anderson, 1 B. & 11 Ch. D. 68; 48 L. J., Bk. 49; P., N. R. 69. 40 L. T. 105; 27 W. R. 518 (C. A.) (m) Haille v. Smith, 1 B. & P.
(k) Leask v. Scott, 2 Q. B. D. 563. 376; 46 L. J., Q. B. 576; 36 L. T. (n) The Marie Joseph, L. R., 1 784 ; 25 W. R. 654.
P. C. 219.
9. A. shipped goods worth 1,8001. to B.; B. transferred the bill of lading to C. to secure 1,0001. On B.'s bankruptcy, C. claimed to be entitled to retain all the goods as against A.'s right to stop in transitu. Held, he was not entitled to goods beyond the value of 1,0001. (o).
10. The purchaser of goods, shipped by the vendor, consigned them abroad, and indorsed the bill of lading to a bank as security for an advance. The consignees, before the ship's arrival, resold the goods “to arrive" to sub-purchasers, to whom they were delivered. On the purchaser becoming bankrupt, notice to stop the goods in transitu was given to the shipmaster by the unpaid vendor, after the sub-sales, but before delivery and before payment of the freight. The consignees remitted the proceeds of the subsales to the bank. Held, that the unpaid vendor was entitled to the balance of the proceeds after payment of the bank's claim (p).
$ 58. The transitus will be deemed not to have determined, Duration of
the transitus. but to continue till the goods have arrived at the place which the consignee originally designated as their ultimate destination, unless previously determined in one of the modes mentioned above. (See $ 57, pp. 85–87.) It, therefore, follows that the mere fact of the consignee's agent receiving the goods into his warehouse at an intermediate place, with the intention of forwarding them, will not end the transitus (9).
Where goods are sold on a wharf or in dock, they will continue in transitu till either the purchaser remove them, or the warehouseman or wharfinger is constituted the agent of the purchaser (r).
CASE. A commission agent at Manchester purchased goods for A., to be shipped to Lisbon. A. had no warehouse at Manchester, and the vendor therefore delivered the goods to the commission agent to forward to Lisbon. Held, that the transitus continued till the
(6) Spalding v. Ruding, 6 Beav. 376 ; 12 L. J., Ch. 503.
(p) Kemp v. Falk, 7 App. Cas. 573; 47 L. T. 454 ; 31 W. R. 125.
(9) Coates v. Railton, 6 B. & C.
422; see “Case" at end of this $
(r) Dixon v. Yates, 5 B. & Ad. 313; Tanner v. Scovell, 14 M. & W. 28; Imperial Bank v. London and St. Katherine Docks Co., 5 Ch. D. 195.
goods reached Lisbon, the place named by the purchaser to the vendor as their ultimate destination (s).
§ 59. What will Mere notice of his claim given by the consignor to the amount to stoppage in person in whose custody the goods are, or to the principal, transitu and if sufficient time be allowed him to inform his agent, will its effect. be an effective stoppage in transitu (1). A delivery after
t) such notice by the carrier, warehouseman or wharfinger of the goods to the consignee will not give him, or even his assignees, any title to the goods (u). The effect of a stoppage in transitu is not to rescind the contract, but merely to restore the vendor's lien and to reinstate him in the position he held before he parted with the goods (x). It not only countermands the delivery of the goods to the consignee, but also orders delivery of them to the consignor (y).
CASE. Timber was shipped from Quebec to be delivered at Fleetwood. A notice of stoppage in transitu was given to the shipowner at Montrose, while the goods were on their voyage. The shipowner thereupon wrote a letter to await the arrival of the master at Fleetwood, directing the cargo to be delivered to the vendor's agents. Held, not a sufficient notice of stoppage in transitu (z).
$ 60. Right of When before the delivery of the goods, or of part of deliver, when them, the purchasers declare themselves insolvent, the
vendors need not deliver the goods, such right to refuse delivery being based on a right analogous to that of stoppage in transitu (a). But this rule will not apply,
(8) Coates v. Railton, 6 B. & C. 422.
(1) Whitehead v. Anderson, 9 M. & W. 518; see “ Case" at end of this s.
(u) Northy v. Field, 2 Esp. 613; Litt v. Cowley, 7 Taunt. 169; Whitehead v. Anderson, 9 M. & W. 518; see “ Case" at end of this s.
(x) Wentworth v. Outhwaite, 10 M. & W. 436, per cur.-Abinger, C. B., diss.
(y) The Tigress, 32 L. J., Adm. 97.
(z) Whitehead v. Anderson, 9 M. & W. 518.
(a) Ex parte Chalmers, In re Edwards, L. R., 8 Ch. 289; 42
unless there is something equivalent on the part of the purchasers to a declaration that they will be unable to meet their engagements (6).
The trustee in bankruptcy can, however, elect to complete the contract by paying the agreed price in cash within a reasonable time; and then the vendor will be bound to deliver the goods (c).
CASE. H. agreed to deliver 300 tons of powder to E., at the rate of 30 tons a month, E. paying for each delivery within 14 days. When the whole with the exception of 30 tons had been delivered, E. made a declaration of his insolvency. H. then retained the 30 tons, of which E.'s creditors' trustee demanded delivery. Held, H. was entitled to retain them (d).
L. J., Bk. 37; 28 L. T. 325 ; 21 W. R. 349 (C. A.); see “ Case" at end of this s.
(6) In re Phænix Bessemer Steel Co., Ex parte Carnforth Iron Co., 4 Ch. D. 108; 46 L. J., Ch. 115; 35 L. T. 776; 25 W. R. 187 C. A.).
(c) E. parte Stapleton, In re Nathan, 10 Ch. D. 686; 40 L. T. 14; 27 W. R. 327 (C. A.).
(d) Ex parte Chalmers, In re Edwards, L. R., 8 Ch. 289; 42 L. J., Bk. 37; 28 L. T. 325; 21 W. R. 349.