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The warehousemen entered this order in their book. The Queen's Bench came to the conclusion that the contract of sale, which was not distinctly proved, was a sale of the bin of oats for a certain sum, and that the weighing of the oats was not a part of the contract; and, that therefore, the transfer in the books defeated the vendor's rights. It seems impossible to doubt that the delivery order was as conditional as that in Hanson v. Meyer, but there the condition was a binding one as part of the bargain; in Swanwick v. Sothern, it was not binding on the purchaser, and he chose to waive it.
We shall now return to the subject of stoppage in transitu, properly so called, to which this digression is by no means irrelevant.
WHAT THE TRANSITUS IS, AND WHEN IT TERMINATES. THE RIGHT OF STOPPAGE IN TRANSITU CANNOT BE EXERCISED UNLESS WHEN THE PURCHASER IS INSOLVENT, OR HAS BECOME BANKRUPT, AND MUST BE EXERCISED AS OF RIGHT PARAMOUNT TO THAT OF THE PURCHASER, AND INDEPENDENTLY OF HIS ASSENT.
The transitus, as its name imports, is whilst the goods are on their passage from the vendor to the buyer, or, as has been already said, when they are in the hands of one, who neither holds the possession by a contract of bailment made with the vendor, nor yet as an agent to hold them under the order of the buyer, but only as an agent to forward them from the vendor to the buyer.
There are many cases in which it is quite clear in which capacity the goods are held. No one could for a moment doubt, that goods in the hands of a public carrier, either by land, or by water, and actually on the journey, are in transitu; it is self evident as a matter of fact, that the carrier under such circumstances, holds them merely as an agent to forward. And it is equally clear that goods travelling on the
same journey in the buyer's own cart or barge, which he had sent for them, are not in transitu; for the carter or bargeman is clearly the buyer's servant, and not an agent to forward from the vendor. But there is sometimes a good deal of difficulty in drawing the boundary line between the carrier and the servant, as, for instance, in ascertaining the character of the captain, where the buyer does not send his own vessel to fetch the goods, but employs a ship belonging to a third party on that particular errand. In two important cases, Inglis v. Usherwood (a), in 1801, and BoMingk v. Inglis (b), in 1803, it was at first taken for granted, that a delivery of goods on board a vessel chartered by the buyer, was a delivery to the buyer himself, but afterwards the Court held and decided that it was but a delivery to an agent to forward, and that the goods on board the ship were in transitu. How this may be, seems to depend on the nature of the contract between the shipowner and the charterer.
In the majority of cases, the shipowner does not part with the possession of the vessel, he does no more than contract to employ the vessel and the services of the master and crew for a time, exclusively for the benefit of the charterer; so that the master remains the servant of the shipowner, and not of the charterer, and his possession is the possession of the shipowner, and not of the charterer in any case in which their rights come in question. But though this is the usual con. tract between the shipowner and the charterer, they
(a) Inglis v. Usherwood, 1 East, 515.
may in law, and in practice sometimes do agree, that the charterer shall during the voyage have the possession of the vessel, and that the master shall during that time be the servant of the charterer. In other words, though a charter party usually is a contract on the part of the shipowner, to use the ship and the services of the master and crew, in a particular manner, it may amount to a demise of the vessel, and of the services of the master and crew. The distinctions on which it depends, which is the construction of the charter party, may be found in Abbott on Shipping, 173.
When, therefore, goods are put into the possession of the master of a ship, they are in general in the possession of the shipowner, who, as it is evident, is an agent to forward the goods, and therefore goods on shipboard in general are in transitu; but where the master is not the servant of the shipowner, but the immediate servant of the charterer, the goods, by being put into possession of the master, are put in the possession of the charterer, and, therefore, if the charterer be also the purchaser, they are no longer in transitu. "So," says Lord Tenterden in last edition of Abbott on Shipping (a), "as I have before observed, the master of a "ship chartered wholly by the consignee is now held "to be a carrier, in whose hands goods may be stopped, "Bohtlingk v. Inglis (3 East, 381.) But where a ship "had been hired by the consignee for a term of years, "and was fitted out, victualled, and manned by him,
(a) Abbott on Shipping, 374.
"and goods were put on board thereof to be sent by him "oil a mercantile adventure, for which he had bought "them, it was held that the consignor could not stop "them: the consignee being in that case the owner "of the ship pro tempore, and the delivery of goods "on board thereof being equivalent to a delivery into "a warehouse belonging to him, and the transit being "in effect a transit from, and not to him. Fowler v. "MacTaggart (cited 7 T. R. 442, and in the case "mentioned in the text)."
It is not of any importance in point of law whether the goods are actually on a journey or not, for if the goods are deposited with one who holds them merely as an agent to forward, and has the custody as such, they are as much in transitu as if they were actually moving; but in general there is more difficulty in ascertaining as a fact in what capacity goods are deposited, than in what capacity they are carried. The acts accompanying the transport of goods are less equivocal, less susceptible of two interpretations, as to the character in which they are done, than are those accompanying a deposit of goods. The question, however, is still the same, has the person who has the custody of the goods got possession as an agent to forward from the vendor to the buyer, or as an agent to hold for the buyer?
In Leeds v. Wright (a), in 1803, where an agent of the bankrupt purchased the goods on account of the bankrupt for exportation, but had authority from the