to stop the goods, (although he has no strictly legal right to resume possession even after the claim is satisfied,) continues, subject only to the amount of such claim: and, if the indorsee holds in his hands any other property belonging to the insolvent, the unpaid vendor has an equity to compel him to resort to it in the first instance.

It appears, therefore, upon the whole view of the cases, that the indorsee of the bill of lading for valuable consideration, without notice of circumstances that render the instrument not fairly and honestly assignable, has a claim upon the goods proportioned to the amount of his advances, paramount to the vendor's right of stoppage.

affected by claims not derived from bill of

But the vendor's right is not affected by the Right not claims of third parties against the consignee, if derived from any other source than the bill of lading. Thus, if the purchaser, before receiving lading. the goods, enters into a contract for the resale, and receives the price, and afterwards becomes insolvent, the vendor may stop the goods as against the sub-vendee (n). Yet, if the purchaser, at the time of the resale by him, had made a prima facie payment for the goods, as by giving his acceptance to the vendor, this will so far complete his title as to make good the subsequent resale for valuable

(n) Craven v. Ryder, 6 Taunt. 433; S. C. 2 Marsh. 127; Holt, N. P. C. 100.

consideration, and to bar the vendor from recovering against the sub-vendee, although the original purchaser should subsequently become bankrupt, and the acceptance be dishonoured (o). Again, it has been decided that, where the consignee, before the arrival of the goods, gives a delivery note, or other instrument not negotiable, in favour of a third party, this does not prevent the consignor from stopping the goods (p). So, his right is not affected by an attachment against the goods, while in their transit, at the suit of a creditor of the consignee(q); nor, by the lien of a carrier (or other bailee) on a general balance of account between the consignee and the latter (r). Nor can the consignee's agent set up any claim, which he may have against his principal, as a ground to bar the vendor's right of stoppage; especially where the vendor and purchaser both act in the same interest, and are both desirous of stopping the goods (s). Tindal, C. J., said; "Questions on this

(0) Davies v. Reynolds, 4 Campb. 267; S. C. 1 Stark. N. P. C. 115.

(p) Akerman v. Humphery, 1 C. & P. 53, (recognised 4 Bingh. 522).

(q) Smith v. Goss, 1 Campb. 282. See Bartram v. Farebrother, 1 M. & Payne, 515.

(r) Oppenheim v. Russell, 3 B. & P. 42; Richardson v. Goss, 3 B. & P. 119; Morley v. Hay, 3 Man. & Ry. 396; Hawley v. Day, Dan. & Lloyd, Merc. Ca. 51, n.

(s) Nicholls v. Le Feuvre, 2 Bingh. N. S. 81; Patten v. Thompson, 5 M. & S. 350.

branch of law usually arise upon conflicting claims between the vendor and the purchaser, or the purchaser's representatives. But, where the purchaser (the defendant's principal) has renounced his claim to forward the goods to their destination, what right can the agent set up to retain them?"(t)

III. When the Transitus is determined.

transit is de

In reference to the determination of the tran- When the situs, the principal consideration is, what amounts termined. to an actual or constructive delivery to the purchaser. The general rule (subject however to the qualifications hereafter adverted to) is, that the transitus continues until the goods have reached their original destination, unless the purchaser have in the meantime given them a new direction (u).

1. By actual Delivery.

delivery.

If the goods come into the actual possession of By actual the consignee, though it be wrongfully, as by the production of an unindorsed bill of lading, although the party having the custody of the goods may be liable over to the vendor, the right of the latter as against the consignee is gone (r). However, if the

vendor, on the insolvency of the

consignee, has

given notice to the master of the ship (or other

(t) 2 Bingh. N. S. 86.

(u) Morley v. Hay, 3 Man. & Ry. 396.

(x) Coxe v. Harden, 4 East, 211; S. C. 1 Smith, Rep. 20.

bailee who holds the goods), not to deliver the cargo, this will be sufficient without actually obtaining possession(y). Thus, where the bailee, after acquiescing in such notice, delivers them over to the bankrupt or his assignees, whether wilfully (≈), or by mistake (a), the delivery will not preclude the vendor from exercising his right. So, the vendor's right was held not to be barred, where the bailee, having been requested by the vendor to sign a receipt to the effect that he held the goods on the account of the latter, kept the receipt but refused to sign it, and immediately afterwards signed bills of lading to the order of the vendee (b). And it was held in an old case, that an entry of the goods by the vendor at the custom-house, in order to pay the customs for them, was a sufficient exercise of the right, although the assignees afterwards forcibly obtained possession of them (c).

(y) Northey v. Field, 2 Esp. 613; Patten v. Thompson, 5 M. & S. 350; Inglis v. Usherwood, 1 East, 515. This distinction has been taken ;—a claim on the part of the vendor is a sufficient exercise of the right; but actual or constructive possession on the part of the vendee is necessary, in order to bar the right; See Mont. & Gregg. B. L. 455, note (a), (3rd Ed.).

(z) Bohtlingk v. Inglis, 3 East, 381; Mills v. Ball, 2 B. & P. 457.

(a) Litt v. Cowley, 7 Taunt. 169; S. C. Holt, N. P. C. 338. (b) Ruck v. Hatfield, 5 B. & A. 362. See Craven v. Ryder, Holt, N. P. C. 100.

(c) Ex parte Walker and Woodridge, cited Co. B. L. 419.

the contract

before com

Even after the arrival of the goods at the But not if premises of the vendee, the right of stoppage will is rescinded not be determined, if the vendee, at any time be- pletion. fore circumstances have taken place to vest the property absolutely in himself, rescind the contract and refuse to accept the goods; as where, either before (d) or immediately after (e) the receipt of the goods, the consignee sent notice to the consignor that he was in embarrassed circumstances, and should therefore decline accepting the consignment. But if the property has already vested, the right is absolutely gone (ƒ); for although a trader, even when in an insolvent state, is justified in rescinding a contract before the property has vested, and declining to accept the goods, yet the policy of the bankrupt-laws will not suffer him to divest the property after it has once vested, and re-transfer the goods. And the vendee must elect to rescind the contract immediately (if at all) on the arrival of the goods, otherwise it will be presumed that he has accepted them (g). The vendor's right of stopping, or rather recovering, the goods under

(d) Richardson v. Goss, 3 B. & P. 119. See Bartram v. Farebrother, Dan. & Lloyd, Merc. Ca. 42; S. C. 1 M. & Payne, 515; 4 Bingh. 579.

(e) Salte v. Field, 5 T. R. 211; Atkin v. Barwick, 1 Stra. 165. (ƒ) Barnes v. Freeland, 6 T. R. 80; Smith v. Field, 5 T. R. 402. After the property has vested, such act on the part of the vendee would amount to a fraudulent preference; See above, pp. 111, 112.

(g) Neate v. Ball, 2 East, 117; Livesay v. Hood, 2 Campb. 83.