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 (h). 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 ticipated. goods, and exercises any act of ownership, the transitus will be determined as effectually as if the consignment had reached its original destination (k).

arrival is an

By constructive delivery.

2. By Constructive Delivery.

A constructive delivery of the goods to the con

(h) Holst v. Pownal, 1 Esp. 240; per Lord Kenyon, C. J. (i) Coates v. Railton, 6 B. & C. 422; Morley v. Hay, 3 Man. & Ry. 396.

(k) Foster v. Frampton, 6 B. & C. 107. See 2 B. & P. 461.

signee will determine the transit, and bar the vendor's right. It was once held that there must be an actual delivery into the hands of the vendee in order to constitute such a perfect change of possession as to preclude the vendor's right of stopping the goods; or, as Lord Mansfield expressed it, the goods must come to the corporal touch of the vendee (7). But it is now clearly decided, that the goods need not be taken by the consignee himself (m). Lord Ellenborough observed (n), " that the expression, corporal touch' of the vendee, is a figurative expression, rarely, if ever, strictly true. If it be predicated of the vendee's own actual touch, or of the touch of any other person, it comes in each instance to be a question, whether the party, to whose touch it actually comes, be an agent so far representing the principal, as to make the delivery to him a full, effectual, and final delivery to the principal, as contradistinguished from a delivery to a person virtually acting as a carrier or mean of conveyance to or on account of the principal in a mere course of transit towards him." Accordingly, where the vendee's appointed agent Delivery to had received orders from his principal to give the goods a new direction on their arrival, the transitus was held to be at an end as soon as the goods had

(1) Hunter v. Beal, cited 3 T. R. 466, 5 East, 184. (m) See Ellis v. Hunt, 3 T. R. 464.

(n) 5 East, 184.

third party

as agent.

Delivery to third party

man.

reached the possession of the agent (o). However, even where the original destination of the goods has been changed, and a new direction given to them, by the act of a third party, it may sometimes be a doubtful question, whether such change is to be deemed to have been made on the behalf of the vendor or of the purchaser (p). And the purchaser's agent, receiving the goods, cannot bar the vendor's right without the assent and authority of his principal (q).

But, although delivery to the vendee's appointed agent has the same effect as a delivering to the principal himself, yet a delivery to a third party, though made especially on the account of the consignee, will not amount to such a delivery to the latter as to determine the transitus, unless the third party acted as the special and exclusive agent of the consignee. Thus, where the goods were delivered to defendant to be forwarded to the consignees, and the defendant retained them for debts due to himself from the consignees, it was held that the vendor was entitled to stop them in the hands

(0) Dixon v. Baldwin, 5 East, 175; Hawkes v. Dunn, 1 Cr. & Jer. 519; S. C. 1 Tyrwh. 413. See per Bayley, J., Allan v. Gripper, 2 Cr. & Jer. 221.

(p) See Nicholls v. Le Feuvre, 2 Bingh. N. S. 87. In such cases it seems to be a question for the jury to decide, on the behalf of which party the change of direction was made: Vid. per Tindal, C. J.

ib.

(4) Nicholls v. Le Feuvre, 2 Bingh. N. S. 81.

of the defendant, and to recover them in trover (r). So, where they are delivered to any party who may be considered a middle-man between the vendor and vendee, as a packer (s), or a commissionagent (t); or, where they are delivered, according to vendee's directions, to a wharfinger (u); or, where they have been sent to some third party for a specific purpose (r); the transitus is not determined. So, where, upon the arrival of the goods at the warehouse of a wharfinger, for the vendee, the latter declines receiving them, and the vendor's agent accordingly stops them in the bailee's hands (y). Nor is the transitus determined by the arrival, at a wharf, of the vessel in which the goods are shipped, and sending the invoice to the consignee (*). Nor where the goods have been shipped by a particular vessel, on the account of the consignee, whether the vessel was chartered by the latter or not (a). If, however, the con

(r) Stokes v. La Riviere, cited 3 T. R. 466; 3 East, 397. (s) Hunt v. Ward, cited 3 T. R. 467.

(t) Coates v. Railton, 6 B. & C. 422.

(u) Smith v. Goss, 1 Campb. 282; Mills v. Ball, 2 B. & P. 457; Morison v. Gray, 9 B. Moore, 484; S. C. 2 Bingh. 260. (x) Owenson v. Morse, 7 T. R. 64.

(y) Bertram v. Farebrother, 4 Bingh. 579; S. C. 1 M. & Payne, 515; Dan. & Lloyd, Merc. Ca. 42.

(z) Tucker v. Humphrey, 4 Bingh. 516; S. C. 1 M. & Payne, 378.

(a) Bohtlingk v. Inglis, 3 East, 381, (overruling Boehtlinck v. Schneider, 3 Esp. 59). "This case is perfectly consistent with the case of Inglis v. Usherwood, 1 East, 515;" per Lawrence, J.,

Symbolical delivery.

signees were to have the entire control over the ship, or if the goods were in effect shipped, not as from the vendor to the vendees, but as upon a mercantile adventure by the consignees themselves, the transitus is at an end by the delivery on board the vessel (b).

The transitus is determined if there has been such a symbolical transfer to the consignee, or to the assignees on his bankruptcy, as the nature of the particular case will admit. Thus, the transitus was held to be determined, and the consignor's right gone, where the assignee of the bankrupt put his mark upon the goods, which were lying at the time at an inn, and could not be removed, as they were in custodiâ legis, having been attached at the suit of a creditor of the bankrupt (c). So, where the goods are lying in a warehouse, and are transferred in the wharfinger's books into the vendee's name (d); or (as it seems), where the deliveryorder is merely lodged with the wharfinger, without any transfer in his books (e); or, where the vendee, after the delivery-order has been given,

3 East, 398. See Thompson v. Trail, 2 C. & P. 335, per Abbott, C. J. And see Verrulez v. Tulloh, (decided in 1789 in a Court of Amsterdam,) cited with approbation by Lord Loughborough in Lickbarrow v. Mason, 1 H. Bl. 364.

(b) Fowler v. M'Taggart, cited 7 T. R. 422; 1 East, 522; 3 East, 388. See per Lawrence, J., 3 East, 396, 397.

(c) Ellis v. Hunt, 3 T. R. 464.

(d) Harman (Assignee of Dudley) v. Anderson, 2 Campb. 243; Hawes v. Watson, 2 B. & C. 540; S. C. 4 D. & R. 22. (e) 2 Campb. 245.