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tained, but which certainly interferes with the purchaser's rights both of property and possession. In this respect, the situation of an unpaid vendor is a peculiar one; for though the owner of goods can by agreement give the holder of them a right to hold them adversely to him till some conditions are fulfilled, or as it is technically called, give him a lien on them: yet this anomalous sort of property springing up upon the insolvency of the owner, seems peculiar to a contract of sale; and there is attached to it a further right to stop the goods in transitu, as it is called, after they have left the vendor's possession, and before they have come to that of the buyer, which is equally peculiar to the contract of sale.

201

PART III.

OF THE VENDOR'S RIGHTS.

CHAPTER I.

STOPPAGE IN TRANSITU: ITS ORIGIN. IT IS A RIGHT PECULIAR TO ONE WHO STANDS IN THE SITUATION OF VENDOR, AND WHO IS WHOLLY OR PARTIALLY UNPAID.

We now come to treat of the rights of the unpaid vendor, whilst he still retains possession of the goods sold, and of that extension of his right which enables him to retake the goods after he has parted with the possession, and before the purchaser has taken possession. In the natural order of things, it would be more regular to consider the vendor's rights whilst in possession, before taking any notice of those rights which he possesses after he has parted with it; but the state of the law makes it more convenient to reverse this order, and commence by endeavouring to ascertain the extent and nature of the right of stoppage in transitu. In the first place it is to be observed, that when the vendor has given the buyer possession under the contract of sale, all his rights in the goods are completely gone; he must recover the price exactly as he would recover any other debt, and has no longer any claims on the goods sold superior to those of any other creditor. The delivery and acceptance of possession complete the sale, and give the buyer the absolute unqualified and indefeasible rights of property and possession in the things sold, though the price be unpaid and the buyer insolvent, unless, indeed, the whole transaction is vitiated by actual fraud. "In "this respect," says Lord Tenterden (Abbott on Shipping, 5th edition, 365), "the law of England is more favor"able to the transfer of property, the great subject of "commerce, and less attentive to the interest of the "seller of goods than the ancient civil law or the "modern law of many European nations, which is "chiefly founded on the civil law: for the civil law "did not in general consider the transfer of property "to be complete by sale and delivery alone, without "payment or security for the price, unless the seller "agreed to give a general credit to the buyer for it; "but allowed the seller to reclaim the goods out of "the possession of the buyer, as being still the seller's "own property. And by the general law of France "in the case of insolvency, the seller who has sold a "thing, and still lies out of the money which he was "to have for it, if he finds the thing that he sold in "the hands of the buyer, may seize on it, and he is not "obliged to share it with the other creditors of the "buyer; whereas, by the general law of England, "when goods have been delivered into the actual or "constructive possession of the buyer, they cannot "be reclaimed."

It must be borne in mind, that at the time Lord Tenterden wrote, the modern law of most of the continental nations was what is now the ancient law of the same countries, for the Code Napoleon was not yet introduced. And this is the more important. because the Code de Commerce on this point was framed with the avowed and deliberate purpose of abolishing the ancient law of revendication, and adopting the provisions of the law of England and America. (a) But the distinctions between the civil law which enabled the seller after delivery to seize the goods as his property, even in the hands of a bond fide sub-purchaser, unless there had been general credit given, express or implied, and the ancient law of France, which gave the right to recover them so long as they were in specie in the hands of an insolvent buyer, whether there was credit given or not, but made that right cease when the goods came into the hands of a sub

(a) This assertion is made on the authority of a note in 1 Bells Commentaries, p. 207. I have not seen the documents there referred to, but the quotations seem fully to bear out the statement. But the right of revendication seems to remain when the parties are not traders, but the period during which it must be exercised is cut down to a week, and is confined to the case of a sale without giving of credit. Where credit is given, the seller seems to retain a "privilege" or preferable claim to that of ordinary creditors, but to have no right of revendication. "The creditors who have a '-privilege] on certain moveables are * * * 4thly, The price of moveable goods sold and not yet paid for, if they are still in the hands of the debtor, whether he bought them on credit or without credit, (d terme on sans terme). If the sale was made without credit, the seller may even revendicate the goods so long as they are in the hands of the purchaser, and forbid the resale, provided the revendication is made within a week of the delivery, and that the goods remain in the same state in which that delivery was made." Code Civil, 2102.

purchaser, and the law of England which gives no right of either sort, seem all to have been present to Lord Tenterden's mind when writing these few sentences.

The state of the ancient foreign law is by no means irrelevant to the present inquiry; for there seems but little reason to doubt, that the right of stoppage in transitu is a modification of the right of revendication, such as it had become by the general law merchant during the middle ages.

"Although," said Lord Abinger, in 1841 (a), "the "question of stoppage in transitu has been as frequently "raised as any other mercantile question within the last "hundred years, it must be owned that the principle "on which it depends has never been either settled or "stated in a satisfactory manner. In Courts of "Equity it has been a received opinion that it was 'founded on some principle of the common law. In "Courts of Law it is just as much the practice to call "it a principle of equity which the common law has "adopted. This was strongly insisted upon by Mr. "Justice Buller in his celebrated judgment in the House "of Lords in the case of IAckbarrow v. Mason, (4 Bro. "P. C. 57). It has also been said by Lord Kenyon, "that it was a principle of equity adopted by the "common law to answer the purposes of justice. "The most eminent equity lawyers that I have had an "opportunity of conversing with in times that are gone "by, were unanimous in repudiating it as the offspring

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