of the vendor, the lien may be suspended by circumstances, and may afterwards revive (a). Where a party resumes possession of goods wrongfully and by misrepresentation, the lien will not be revived, although otherwise he might have been entitled to it (b). hart v. Lowe, 2 Jac. & W. 352. But see Levy v. Barnard, 8 Taunt. 149; Wallace v. Woodgate, 1 Ry. & Moo. 193. (a) See per Bayley, B., 2 Cr. & Mees. 510. (b) Madden v. Kempster, 1 Campb. 12; Whitehead v. Vaughan, Co. B. L. 547. CHAP. II. term. STOPPAGE IN TRANSITU. Use of the THE term stoppage in transitu is occasionally used to signify any act done by the owner of goods, or by a party entitled to a lien upon goods, by which some adverse right is prevented from vesting. Thus, the expression has been used, in reference to the countermanding of a consignment in order to prevent the general lien of a factor from attaching upon the goods (a);—also, in reference to a bailee, after having parted with the possession, resuming it in order to regain his lien (b);-also, in reference to the countermanding of a remittance sent by a debtor to a creditor, who had subsequently become insolvent (c);-and in a few Proper sig other instances (d). But it has been well observed (e), that the term has now acquired a distinct technical meaning, to which it ought to be nification. (a) Paley, Pr. & A. 137; Kinloch v. Craig, 3 T. R. 119. (c) Smith v. Bowles, 2 Esp. 578. (d) See Edgar v. Fowler, 3 East, 225, per Lord Ellenborough, C. J.; Gurney v. Sharp, 4 Taunt. 245. (e) Paley, Pr. & A. 137, Editor's Note, (3d Ed.) Vid. per Cur. 3 T. R. 787. confined; to wit, the right, which an unpaid vendor possesses, of stopping goods on their way to an insolvent vendee. the right. The doctrine of stopping in transitu, it is said, Origin of owes its origin to Courts of Equity, but has since been adopted and established by a variety of decisions in Courts of Law, and is now regarded with favour as a right, which those Courts are always disposed to assist (f). The first case, in which the doctrine was acknowledged in a Court of Law, seems to be the case of the Assignees of Burghall v. Howard (g). The action was brought by the assignees of the bankrupt-vendee against the defendant (in whose vessel the goods had been shipped), for refusing to deliver the cargo on the ground that the delivery had been countermanded by the consignor. Lord Mansfield nonsuited the plaintiffs, observing, that he had known it several times ruled in Chancery (h), that, where the consignee becomes a bankrupt, and no part of the price has been paid, it was lawful for the consignor to seize the goods before they came to the hands of the consignee; and that this was decided, not (f) Selw. N. P. 1275, (8th Ed.); 4 Bing. 519. (g) Coram Lord Mansfield, C. J., 32 Geo. II., cited 1 H. Bl. 366 n. See per Lord Loughborough, Mason v. Lickbarrow, 1 H. Bl. 366. (h) See Snee v. Prescott, cor. Lord Hardwicke, Ch., 1 Atk. 248; D'Aguila v. Lambert, 2 Eden, 75; Ambl. 399. upon principles of equity only, but the general laws of property (i). The vendor's right of stopping the goods in transitu may be considered under the three following heads : I. Who is entitled to exercise the right of stopping goods in transitu. II. Under what circumstances the vendor may stop the goods. III. When the transitus is determined. Who enti- I. Who is entitled to exercise the Right of stopping Goods in Transitu. tled to stop goods. Quasi vendor. It is sufficient, to entitle a party to stop goods in transitu, that he stands in relation of vendor (i) The effect of stopping the goods in transitu, where possession has been actually re-obtained, seems to be, entirely to rescind the contract, and to revest the property absolutely in the vendor: on this principle, it is decided that the vendee (or his assignee on his bankruptcy) no longer possesses an insurable interest in the goods; Clay v. Harrison, 5 Man. & Ry. 17; S. C. 10 B. & C. 99. But see 7 T. R. 445; 1 Campb. 109; 1 M. & Payne, 392; and in Mont. & Gregg, B. L. 453, note (d), it is said, that the vendor is only entitled to the purchase-money, and the bankrupt's assignees may claim the goods on payment of the price. If there is any distinction, it seems to depend on the question, whether the vendor had merely exercised the right of stoppage in transitu in law; or, whether he had performed any overt act of rescission (which he might do as long as the contract was executory), such as actually retaking possession. See the same case of Clay v. Harrison, reported in Lloyd & Welsby, Merc. Ca. 104, and ib. 113 n. And see Chit. Contracts, 342, (2d Ed.). quoad the bankrupt; therefore, where the party receiving the order procured the goods from a third person on his own credit, and shipped them on the account of the bankrupt, drawing bills upon the latter for the price, it was held, that the shipper was in effect the seller, and was therefore justified in authorizing his agent to stop the goods (k). So, the agent, on whose credit the goods were sold, may, in order to protect himself, prevent them from vesting in the vendee-principal, by giving them a new direction, adverse to the principal and contrary to the course of dealing for which he as agent had ordered them (). But a mere surety But not has not such power; therefore, where the party stopping the goods had no interest in the original purchase, but had agreed to accept bills drawn for the price upon receiving a commission on the amount, it was held, that he had no right, and that the assignees of the bankrupt were entitled to recover the proceeds (m). mere surety. An agent duly authorized may stop the goods on Agent. behalf of his principal. But it seems that, where the goods have been stopped by a third party in favour of the consignor, his authority for the particular act must have been received before obtaining possession of the goods: if there was no privity (k) Feize v. Wray, 3 East, 93; Hawkes v. Dunn, 1 Tyrwh. 413. (1) See per Bayley, B., 1 Tyrwh. 418, 419. (m) Siffken v. Wray, 6 East, 371; S. C. 2 Smith, Rep. 480. |