In Walley v. Montgomery (a), in 1803, the consignor's agent Montgomery, obtained possession of the goods, and refused to deliver them to the consignee, Walley, unless he would pay the price in cash. Lord Ellenborough, at the trial, thought that the consignment was, from the first, conditional, and nonsuited the plaintiff, but on its being shewn that the consignment was not conditional, the nonsuit was set aside. Walley was not insolvent, if he had been, this would have been a good stoppage in transitu, and he would have had no cause of action.

In the case of the Constantia (b), in which Lord Stowell had to decide on the effect of an attempted revendication under the old law of France, where the vendor had acted under a mistake as to the insolvency of the consignee, he decided that it was a nullity, inasmuch as the insolvency did not ensue; but that if the purchaser had become insolvent, it would have been good. The law of revendication, was analogous to the law of stoppage in transitu, and Lord Stowell, in his judgment, quoted the earlier editions of Abbott on Shipping, and stated the general English law of stoppage in transitu as bearing on the question. Lord Tenterden, in the later editions of his book, adopted the judgment of Lord Stowell, as an illustration of the English law. There is no doubt now of the proposition in which these two great authorities concurred, that "the mercantile law is clear and distinct that the seller has not a right to vary the consignment, except in case of insolvency." It seems though there

(a) Walley v. Montgomery, 3 East, 585.
(b) The Constantia (Henrickson), 6 Rob. 321.

is no direct authority for the proposition, that the law is precisely the same in the case of a carrier by land, as in that of one by sea.

There is no necessity that the seller should have been formally declared a bankrupt, if he have become insolvent. There must, of course, in all cases be great difficulty in proving that a person, who has not stopped payment, is, in fact, not solvent, and there seems to be no case in which this has been attempted; but the text books and dicta of the Judges do not restrict the use of the term "insolvent," or "failed in his circumstances," to one who has stopped payment. There must, however, be great practical difficulty in establishing the actual insolvency of one who still continues to pay his way; and as the carrier obeys the stoppage in transitu, at his peril if the consignee be in fact, solvent, it would seem no unreasonable rule to require that, at the time the consignee was refused the goods, he should have evidenced his insolvency by some

overt act.

The stoppage in transitu must, to be effectual, be on behalf of the vendor, with an intention to exercise this power as of right, and independently of the purchaser's assent.

Even if the vendor's agent take actual possession of the goods, that is not necessarily a stoppage in transitu, unless it be done with that intent. This was decided by the King's Bench in 1805, in Siffkin v. Wray (a), in which one who was maintained to be

(a) Siffkin v. Wray, 6 East, 371.

the vendor's agent, took possession of the goods by consent of the bankrupt, in trust, to sell them and apply the proceeds to take up the bills drawn against the goods. The Court held, that even if he was the vendor's agent that was no stoppage. But a stoppage of the goods done with intent to stop them, by a right paramount to that of the buyer, is not invalidated by being with the consent and approval of the buyer, or even by being originated by him. In Mills v. Ball (a), in 1801, the Court of Common Pleas held, that where a purchaser wrote to the vendor to say he was insolvent, and told him where the goods were, in order that he might stop them, the consequent stoppage was not invalid.

At one time, it seems to have been supposed, that in order to make a good stoppage in transitu, there must have been an actual taking possession of the goods by the vendor or his agent, but it is now clearly settled, that the vendor's rights are complete on giving the person who has the possession of the goods, notice of the vendor's claim to stop the goods, at a time when he can obey it, although there is neither an actual taking of possession by the person stopping the goods, or such an assent on the part of the holder, as would amount to a constructive possession.

In Mills v. Ball (a), in 1801, the wharfinger who had the possession of the goods, told the vendor's agent, who demanded them from him, that " he would not deliver them till he was certain of a safe delivery," and the Court of Common Pleas held, that after that

(a) Mills v. Ball, 2 B. & P. 457.

assent, the goods as against him, were in the vendor's possession; the Court guarded themselves against being supposed to decide what might be the case, when the holder gave no assent.

In Bohtlingk v. Inglis (a), in 1803, the Court of King's Bench decided, that a demand on behalf of the vendor on the master of the ship in which the goods were, was a stoppage as against the assignees of the buyer, who had obtained a delivery from the master.

In Litt v. Cowley (b), in 1816, the Court of Common Pleas went further: the goods there were delivered to Pickfords, the carriers, at Manchester, to be delivered in London. Notice was given by the vendors to Pickford's house at Manchester, to stop the goods, at a time when the goods were on the road, and when, therefore, the Manchester house could not have delivered them to the vendor. They forwarded the notice to their house in London, it arrived in plenty of time, but by some blunder, the goods were delivered. The Court held that this notice revested the vendor's rights, and that he might maintain trover against the assignees of the bankrupt purchaser, who refused to return the goods.

In 1842, in Whitehead v. Anderson (c), an unsuccessful attempt was made to give a notice given to the master carrier, the effect of stopping the goods in transitu, though given at a time when he could not obey it. In that case, the goods were at sea consigned to Fleetwood, in Lancashire, when notice was given

(a) Bohtlingk v. Inglis, 3 East, 381.

(b) Litt v. Cowley, 7 Taunt. 169.

(c) Whitehead v. Anderson, 9 M. & W. 518.

to the shipowner, then resident at Montrose, to stop the goods. He endeavoured to do so, but the assignees of the bankrupt won the race, and reached the vessel first; it was contended, on the authority of Litt v. Cowley, that the notice given to the principal was a sufficient stoppage. The judgment of the Court on this point was as follows:-"We think it was not "but to make a notice effective as a stoppage in tran"situ, it must be given to the person who has the "immediate custody of the goods, or if given to the "principal whose servant has the custody, it must be "given as it was in the case of Lett v. Cowley (7 Taunt. "169), at such a time, and under such circumstances, “that the principal, by the exercise of reasonable dili66 gence, may communicate it to his servant in time to 66 prevent the delivery to the consignee; and to hold "that a notice to the principal at a distance is sufficient "to revest the property in the unpaid vendor, and render "the principal liable in trover, for a subsequent delivery

by his servants to the vendee, when it was impossible "from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the "absent principal, is to use reasonable diligence to prevent the delivery, and in the present case such diligence was used."