« PreviousContinue »
From that time we may date the numerous decisions which have now formed the law of stoppage in transitu into a system of law that leaves a few points open to dispute, but may be considered on the whole as settled.
The different cases seem to establish the following points:—
1st. The right of stoppage in transitu is peculiar to one who holds the character of a vendor.
2nd. It can be exercised only whilst the vendor is wholly or partially unpaid.
3rd. It must be exercised while the goods are in transitu, that is, after they have left the possession of the vendor, and before they have come to the actual or constructive possession of the purchaser, or those who stand in his place.
4th. It cannot be exercised unless the buyer has failed or become insolvent.
5th. It is a right which must be exercised by claiming or taking the goods as by a right paramount to that of the purchaser.
And lastly, it may be defeated before the goods have come to the end of the transitus, by the assignment of the bill of lading to one who bond fide gives value for a property in the goods, and in no other way.
The most useful form of proceeding seems to be to collect the different authorities for each of those propositions separately.
1st. The right of stoppage in transitu is peculiar to one who stands in the situation of a vendor.
In Sweet v. Pym (a), in 1800, the defendant Pym, was a fuller, and as such had a general lien on the clothes of his customers. He shipped some clothes on which he had this lien, on board a vessel, by the directions of the customer, who at the time was indebted to him, and whose clothes he might, therefore, have retained if he pleased. The customer became insolvent, and Pym succeeded in getting possession of the goods, before the transitus was ended; but Lord Eldon, at Nisi Prius, and afterwards the King's Bench, decided, that the delivery on board ship, put an end to Pym's possession, and, consequently, to his lien, and that it could not be revived by stopping the goods in transitu.
This case must be distinguished from those in which the bailee who has a lien, makes a bargain with the carrier, by which the carrier is to forward the goods subject to the control of the bailee. There the bailee never parts with the possession at all, for his bargain with the carrier makes the possession of the carrier that of the bailee, and he in consequence keeps his lien till the goods are delivered to the consignee. But in such cases it is quite immaterial whether the consignee is solvent or not, for the bailee does not seek, by stopping the goods in transitu, to revive a lien which was lost, but to keep a lien which was never lost, because there was never a commencement of the transitus.
Thus in Freeman v. Birch (b), in 1833, the
King's Bench decided, that a laundress who was in the habit of sending the washed linen to the owner in London, and herself paying the carriage, might maintain an action against the carrier for the loss of the linen. The Court said, that "she had a special pro"perty which had not passed from her. The owner "of the linen was not the employer of the carrier, and "the risk of the bailee was not over till the goods "were delivered."
The point that one who stands in the situation of a vendor has the right of stoppage, and that no one else has such a right, was decided in two cases arising out of the same bankruptcy. In the first, Feize v. Wray (a), in 1802, the facts were, that Browne, who had since become a bankrupt, gave an order to Fritzing of Hamburgh, to procure and ship for him a quantity of wax. Fritzing purchased the wax in his own name, and on his own credit, from persons strangers to Browne; he shipped it in Browne's name, and on his account and risk, and drew bills on him for the price of the wax and his commissions on the purchase. The defendant stopped the goods in transitu on Fritzing's behalf, and the plaintiff, who was Browne's assignee, brought trover against him, contending, amongst other points, that Fritzing was but an agent with a lien, and could not stop the goods; the King's Bench said, the point was worth consideration if it had arisen, but it did not arise. Grove, J. said, "Fritzing may be considered in reality the "vendor, for the name of the original owners was
"never made known to the bankrupt; there was no "privity between them, but the goods were purchased "and the bills drawn in Fritzing's own name, and, "therefore, he stands in the situation of vendor as to "Browne."
In Siffhin v. Wray (a), in 1805, the same parties had a law suit about another transaction. In this case, it appeared, that Browne had ordered some corn of Dubois and Co., and desired them to draw for the price partly on his correspondent Fritzing. Dubois and Co. shipped the corn, and drew on Fritzing, who accepted the drafts. Browne became a bankrupt much indebted both to Dubois and Fritzing, and not having paid the price of the corn. The defendant, who was Fritzing's agent, seized the corn by his authority, but without any authority from Dubois and Co. Lord Ellenborough said, "the defendant had no "right from Fritzing, for Fritzing himself had no "right to stop the goods in transitu. Fritzing's situa"tion in this transaction, was very different from "what it was in Feize v. Wray, there he was liable in "the first instance for the price of the goods, and, "therefore, the Court considered him as a vendor "quoad the bankrupt here to whom he had shipped "them."
In Tucker v. Humfrey (b), in 1828, where the consignor was nearly in the situation of Fritzing, in the case of Feize v. Wray, but was resident in this country, the whole transaction being English, the
Common Pleas assumed his right to stop the goods in the character of vendor as indisputable.
It seems that in cases where a factor acting for a foreign correspondent purchases goods in his own name, and on his own credit, it is rather too qualified a phrase to say merely that he stands in the situation of vendor quoad the consignee. If he is not vendor, it is difficult to say who is, as there would be much difficulty in establishing any privity of contract between the foreign correspondent, and the original vendors. But there is a very gradual progression from this case through those in which the original vendor has a right to elect between the liability of the factor, and the consignee as principals, up to those cases in which the factor, if liable at all, is liable merely as a surety; and there may, consequently, be some difficulty at times in determining whether an agent can be said "to stand in the situation of vendor," so as to give him a right to stop the goods in transitu, on his own account or not.
It can be exercised only whilst the vendor is in whole or in part unpaid.
There could never be any question made, that if the vendor was ever to have the right of stoppage in transitu at all, he must have it when he was wholly unpaid; but it was at one time a question whether he could have any such right when partially paid.