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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(p). 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(/>). 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 (y); 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
(o) 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 Bartramv.Farebrother, 1 M. & Payne, 515.
(»•) 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.
(*) 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?"(/)
III. When the Transitus is determined.
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 (w).
1. By actual Delivery.
If the goods come into the actual possession of By actual the consignee, though it be wrongfully, as by the '"uy' 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
(0 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 (3/). Thus, where the bailee, after acquiescing in such notice, delivers them over to the bankrupt or his assignees, whether wilfully (z), 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. 618; 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.).
(2) 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.
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- p\e°u!nT 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(/); 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; Atkinv. Barwick, 1 Stra. 165. (/) 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. delivery. — — .
these peculiar circumstances, seems to be more properly a revival, than a continuance, of the original right; for it can scarcely be said that a transitus continues, after the goods have actually arrived; and moreover, in order to give this power to the vendor, it clearly requires the concurrence of the vendee, which is not necessary in other cases: accordingly, the rescission of the contract on the part of the vendee must necessarily have taken place before his bankruptcy.
It was formerly held, that the transitus could not be determined until the goods had arrived at their original destination, even if the vendee had previously obtained actual possession of them (A). But, although it is the general rule that the right continues until the arrival at the original destination, so that the vendor may stop the goods in the hands of an intermediate party (i); yet, where the Even if the vendee by his own act anticipates the arrival of the
arrival is an- * x
tidpated. goods, and exercises any act of ownership, the transitus will be determined as effectually as if the consignment had reached its original destination^).
2. By Constructive Delivery. smicUve ^ constructive delivery of the goods to the con
(h) Hoist v. Pownal, 1 Esp. 240; per Lord Kenyon, C. J. (i) Coates v. Railton, 6 B. & C. 422; Morky v. Hay, 3 Man. & Ry. 396. (k) Foster v. Frampton, 6 B. & C. 107. See 2 B. & P. 461.