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"considered." And this ruling was approved of by the King's Bench.
Perhaps, however, this was rather a case of pledge than sale, as it seems difficult to suppose that the parties did not from the first intend the surplus, if any, to be accounted for. If so, the consignees had clearly a special property in the consignment, and the insolvency and probable dishonor of the bills could not divest that special property, though it probably would very materially affect its ultimate value. In Patten v. Thompson, (5 M. & S. 350,) Lord Ellenborough in delivering judgment said, " I have looked "into the case of Vertue v. Jewell, and find that there "the bill of lading was indorsed and sent by the "consignor, on account of a balance due from him, "including several acceptances then running, so that "it was in the nature of a pledge to cover those "acceptances." The case, therefore, is perhaps rather an authority for the first proposition, "that the right of stoppage in transitu is peculiar to a vendor."
There is no reported case in which the vendor had taken, on account of the consignment, the acceptance of a third person; but it would seem on principle in such cases, that until the bill is dishonored he must be considered as paid, as the insolvency of the purchaser does not involve in it any necessity of the badness of the bill; but when the bill is dishonored, then as the vendor might sue the purchaser for the price if he remained solvent, it would seem that he must be considered as an unpaid vendor for all purposes.
THE RIGHT MUST BE EXERCISED WHILST THE GOODS ARE IN TRANSITU, THAT IS, AFTER THEY HAVE LEFT THE ACTUAL OR CONSTRUCTIVE 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. ACTUAL AND CONSTRUCTIVE POSSESSION EXPLAINED.
Before the vendor has parted with the actual or constructive possession of the goods, the transitus has not commenced, and no stoppage is required to give the unpaid vendor his rights: he retains them in respect of the possession with which he has not parted. And after the purchaser, or those who stand in his place have acquired the possession of the goods, the stoppage comes too late to give the vendor any of his rights, for the possession has rendered the purchaser's rights of property and possession indefeasible and absolute. It is only whilst the goods are in an intermediate state—out of the possession of the ven.dor, and not yet in that of the purchaser, that the right can be exercised.
And here it may be as well to state a little more accurately what is meant by the word "possession" in this place, for it is used in a narrower and more restricted sense than in the general technical legal import of the word, and yet in a more extended sense than its popular meaning. For in general, in technical language, one is said to be possessed of goods when he has the property, and an immediate right to have the goods dealt with as he will; yet, a purchaser on credit of a specific chattel, who has the property, and whilst solvent, the right to deal with the goods as he will, though they remain in the vendor's hands, and who, therefore, in general legal language, may be called possessed of them, has never had such possession as will determine the vendor's rights in case the purchaser becomes insolvent. And yet, circumstances far short of an actual delivery into the hands of the purchaser, amount to such a constructive possession as is sufficient to render the purchaser's property indefeasible.
Before the bargain and sale is complete the property in the goods remains in the vendor, and the actual custody of the goods is either in the vendor himself, or in some one who holds them as his bailee.
And though by the completion of the bargain and sale, the property in the goods is at once transferred to the purchaser, so as to give him the rights and liabilities attending the proprietor; and though the right of possession may also be transferred, so as to give the purchaser the rights and remedies belonging to the possessor of the goods, yet, the privity of contract with the bailee is not transferred with the property and right of possession. The person who has the actual custody of the goods may be liable as. a wrong doer, if he in any way interferes with the purchaser's right of possession, but he has no contract with the purchaser; he continues to hold the goods under his old contract with the vendor until something is done to alter the capacity in which he holds them. Till then, they are in cases of this nature, said to remain in the possession of the vendor, and even if the purchaser before his insolvency had the immediate right of possession, the unpaid vendor's right remains unaltered.
But when either the actual custody of the goods has been shifted into the hands of one, who from the first held them as the bailee of the purchaser, or the person holding them has changed the character in which he holds them, so as to become the bailee of the purchaser, the goods are said to be in the possession of the purchaser. In the first case they are often said to be in his actual possession, in the second in his constructive possession. Neither phrase is quite accurate, and there is no legal distinction between the two, in both cases alike the vendor's rights are gone. And the same law is true, when the party who thus takes possession is one who has acquired the purchaser's rights, either by bargain or operation of law.
It is whilst the goods are in an intermediate state, and in the custody of one who holds them, neither by virtue of a contract to keep them, made with the vendor, nor by a similar contract with the purchaser, but as an agent undertaking to forward them from one to the other that the goods are in transitu.
The important question therefore, in every case is, in what capacity are the goods held by him who has the actual custody? In many cases this is quite clear, but in others it is an exceedingly difficult question to answer, more especially where the goods remain in the same custody, and the question is, whether the character of the holder has been changed, and at what time it was changed. It becomes then a question depending upon what was done, and what was the intention with which it was done; and as the acts are often imperfectly proved, and in themselves equivocal, and the intention often not clearly known to the parties themselves, it is not surprising that there should be much litigation upon the point.
The general principles however, seem to be those above stated. Before collecting the cases on the commencement and determination of the transitus, it will be as well to collect those cases which decide when the vendor's possession ends, and the buyer's possession begins when there is no transitus. The principles are precisely the same, indeed, so much so, that cases of this class are frequently, though inaccurately, called cases of stoppage in transitu.
Where the goods are in the hands of the vendor himself or his immediate servants, he holds them as vendor and retains his rights, unless it can be shewn that he has agreed to hold them in a new character. Where this can be shewn, he has lost his rights, though he may never have parted with the actual possession. Where the purchaser has transferred his rights to a third party, it is very likely that the original vendor should agree with him to continue to hold