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Indorsee of bill of lad

ing.

When the goods may

at the time between him and the vendor-principal, a subsequent assent and approval will not make it a due exercise of the right (n).

A party, to whom the vendor indorses the bill of lading for valuable consideration, subsequently to the original consignment, will have the same right of stopping the goods as the vendor himself; but an indorsee without consideration is not entitled to stop the goods (o).

II. Under what circumstances the Vendor may stop the Goods.

The general rule is, that an unpaid vendor may be stopped. always stop the goods, in the event of the insol

vency of the consignee, at
have reached the latter (p).

any time before they The right of stopping merely on a rescission

in transitu is not founded of the contract, but is an equitable lien adopted by the law for the purposes of substantial justice (q). Part-pay- Therefore, part-payment for the goods does not preclude the vendor's right as to the residue, but only operates pro tanto (r). So, the right may be

ment does

not preclude.

(n) Siffken v. Wray, 6 East, 371.

[The Court, however, did

not give a positive opinion to this effect, because the agent's taking was not adverse, but under an agreement with the bankrupt.]

(0) Waring v. Cox, 1 Camp. 369; Abb. Ship. 227.

(p) See Birkett v. Jenkins, cited Cowp. 296.

(g) Per Lord Kenyon, C. J., 7 T. R. 445.

(r) Hodgson v. Loy, 7 T. R. 440; Wiseman v. Vaudeput, 2 Vern, 204,

exercised, although the vendee had previously consigned goods to the vendor, for which no payment had been made; for the vendor is not bound to wait until a final adjustment of accounts between them, to ascertain the question to which

But, if the goods

party a balance may be due (s).
had been consigned on the account of an existing
debt, the consignee's insolvency would not have
given the vendor any right of stoppage (t). Where
the vendor has once voluntarily agreed to waive
his right of stopping the goods, he cannot after-
wards insist upon it (u).

bill of lad

It seems that it may be collected from the deci- Assignment by consions, that no act on the part of the purchaser, signee of before obtaining either actual or constructive pos- ing. session of the goods, can preclude the vendor's exercise of his right, except the indorsement for a valuable consideration, to an assignee, without notice, of a bill of lading (r). Such negotiation of

(s) Wood v. Jones, 7 D. & R. 126. See Kinloch v. Craig, 3 T. R. 119, 783; 4 Bro. P. C. 47.

Smith v. Bowles, 5 Esp. 128, 129.

(t) Vertue v. Jewell, 4 Campb. 31; 278. See per Abbott, C. J., 7 D. & R. (u) Nichols v. Hart, 5 C. & P. 179. (r) And, perhaps it may be added, of a West India Dock warrant. An indorsement in blank of such warrant by a consignee, or by a sub-vendee, was held, by Dallas, C. J. at nisi prius, to be sufficient to bar the vendor's right; Keyser v. Suse, Gow, 58. These warrants seem to have been generally considered negotiable instruments equally with bills of lading; Spear v. Travers,

Indorse

ment neces

sary.

the instrument is held to vest the property in the indorsee, and to bar the vendor's right (y); and the principle of the doctrine seems to be analogous to that, which protects the bona fide indorsee of a bill of exchange or promissory note from being affected by the private mutual claims of the drawer and drawee, or of the maker and payee. A bill of lading is a negotiable instrument (x), and to a certain extent analogous to a bill of exchange (a); therefore, for the security of purchasers, the indorsement for a valuable consideration by the consignee, or his authorized agent, is held to pass the property, discharged of the vendor's claim.

But a delivery of the bill of lading unindorsed does not bar the right of the consignor to stop the

4 Campb. 251; Zwinger v. Samuda, 1 B. Moore, 12. (See TROVER BY VENDEE, Part 2, Chap. ii.) It has been decided that East India warrants are not negotiable instruments, at least within the meaning of the Factor's Act; Taylor v. Kymer, 3 B. & Ad. 337.-Post.

(y) Mason v. Lickbarrow, and Lickbarrow v. Mason, (in error,) reported or cited, in its several stages, in the following authorities; 4 Bro. P. C. 57; 2 T. R. 63; 5 T. R. 367, 683; 6 T. R. 131; 1 H. Bl. 357; 2 H. Bl. 211; 6 East, 20 n. It was so first decided in K. B., which decision was reversed in Cam. Scacc., but the reversal was reversed, and the original decision confirmed, in Dom. Proc. On a new trial the Court of King's Bench declared that they adhered to their former opinion; which has ever since been invariably adopted. See Long, 178; 1 H. Bl. 357 n. Appleby v. Pollock, cited Abb. Shipp. 385.

(z) Vid. supra, p. 123; and post. For the form of a bill of lading, see Appendix.

(a) See per Ellenborough, C. J., 4 East, 217.

ble consi

goods (b). Nor is the right barred by the indorse- Also valuament without valuable consideration, whether it deration. has been indorsed by the consignor to the consignee(c), or by the consignee to a third party (d). On this principle, where the assignee of the bill of lading undertook, in consideration of the indorsement, to make advances to the original consignee, which he afterwards failed to do, but claimed to retain the instrument as a security for prior advances, it was held, that the consignor might stop the goods (e). So, where the assignee of the bill And abof lading has given only a partial consideration, tice. and it appears on the face of the agreement entered into between him and the original consignee, that the consignor has never received payment for the goods, the right of the latter is not barred (ƒ). So, the vendor's right is not barred if the indorsee had notice of the consignee's insolvency (g); or if he fraudulently procured the bill of lading to be signed before the goods were delivered on board (h). Yet, in order to defeat the vendor's right, it is not

(b) Nix v. Olive, Abb. Shipp. 393, 394, (5th Ed.)

(c) Tucker v. Humphery, 4 Bingh. 522; S. C. 1 M. & Payne, 378. See per Grose, J., Walley v. Montgomery, 3 East, 591; Patten v. Thompson, 5 M. & S. 350.

(d) See per Buller, J., 2 T. R. 681 ; per Lord Ellenborough, C. J., 6 East, 41.

(e) Newsom v. Thornton, 6 East, 17.
(f) Salomons v. Nissen, 2 T. R. 674.
(g) Vertue v. Jewell, 4 Campb. 32.
(h) Osey v. Gardner, Holt, N. P. C. 405.

sence of no

Effect of

giving partial consideration.

necessary, that the assignee of the bill of lading should have taken the assignment without notice that the goods had not been paid for; but it is sufficient if he has taken it "without notice of such circumstances as rendered the bill of lading not fairly and honestly assignable" (i). Therefore, although the assignee of the bill of lading was aware that the consignor had not actually received payment, the fact being that the latter had taken acceptances from the consignee payable at a future day not arrived at the time of the assignment, and no collusion between the parties being proved, such knowledge was held not to prevent the assignment from passing the property in the goods (k). An indorsement of the bill of lading, in consideration of partial advances, gives the bonâ fide assignee a claim pro tanto; but not beyond (). In a recent case, very elaborately argued in K. B., the nature of the consignor's right, after such claim of the assignee has been satisfied, was fully considered (m). From this case it may be collected that, where the consignee, before his insolvency and before the goods had arrived, has indorsed the bill of lading to a third party as a security for advances, the equitable right of the unpaid vendor

(i) See 9 East, 516; 2 T. R. 681.

(k) Cumming v. Brown, 9 East, 506.

(1) Cumming v. Brown, 1 Campb. 108; S. C. 9 East, 506.
(m) Westzynthus, in re, 5 B. & Ad. 817; S. C. 2 Nev. & Man.

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