and their supposed value is taken clear of freight as well as other charges, although this article is omitted in the example proposed by Pothier (1). But I find it charged in an adjustment of general average given by Magens (m).

17. By the Civil Law the master of the ship was required to take care to have the contribution settled, and *to receive the sums to be contributed, and pay them over to the losers, and might sue and be sued for them, or might retain the goods for the sums to be contributed by their proprietors (n). The same power of retaining the goods is given to the master by the French Ordinance, and even the further power of sale, under the authority of a magistrate, to the amount of the sums to be contributed (o). But Valin acquaints us, that this power is never in fact exercised in his country (p). In- ` deed, where contribution is to be made according to the price of the goods at the place of destination, the exer

cise of this power is incompatible with the mode [351] of adjustment. In this country, which has no

peculiar forum established for these matters, but in which the practice of insurance is very general, it is usual for the broker, who has procured the policy of insurance, to draw up an adjustment of the average, which is commonly paid in the first instance by the insurers without dispute. In case of dispute, the contribution may be recovered either by a suit in equity (9), or by an action at law (r), instituted by each individual

(1) Traité des Avaries, Num. 133. (m) 1 Magens, 289.

(n) Dig. 14. 2. 2. See Wellwood,

tit. 21.

(6) Liv. 3. tit. 8. Du Jet. art. 21. (p) Tom. 2. p. 211.

(q) Shepherd & others v. Wright, Shower's Parl. Cas. 18.

(r) Marsham v. Dutrey, Select Cases of Evid. 58. Birkley & others v. Prestgrave, 1 East. 220.

entitled to receive, against each party, that ought to pay, for the amount of his share. And in the case of a general ship, where they are many consignees, it is usual for the master, before he delivers the goods, to take a bond from the different merchants for payment of their portions of the average when the same shall be adjusted (s).

(s) So deposed by a gentleman very conversant with this business in the case of Myer & others v.

Vander Deyl." Guildhall, Sit. before Lord Ellenborough, Ch. J. Dec. 1803.

G3

CHAPTER THE NINTH.

OF STOPPAGE IN TRANSITU.

1. WHEN goods have been shipped upon credit, and

the consignee has become a bankrupt, or failed, the law, in order to prevent the loss that would happen to the

consignor by the delivery of them, allows [352] him, in many cases, to countermand the de

livery, and before or at their arrival at the place of destination to cause them to be delivered to himself, or to some other person for his use. This is usually called stoppage in transitu.

ancient Civil Law, or the

2. This practice was first sanctioned, and established in the Court of Chancery (a), but has been since frequently recognized and carried into effect by the courts of law. It is founded on principles of natural justice and equity. But the law of England is in this respect more favorable to the transfer of property, the great subject of commerce, and less attentive to the interest of the seller of goods, than 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,

(a) In the cases of Wiseman v. Vandeput, 2 Vern. 203; Snee v.

Prescot, 1 Atk. 245; and D'Aquila v. Lambert, Ambler, 399.

as being still the seller's own property (b).

And by

the general law of France, in the case of insolvency, "The seller, who has sold a thing, and [353] "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. And it would be the same thing, nay, and ❝ with much more reason, if the owner of the thing had "given" (delivered) "it to the debtor to sell for him" (c). 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 (d), although if found remaining unsold in the hands of an insolvent factor, they may be reclaimed, because a delivery to a factor does not of itself alter the property.

3. The law of England however will lend its aid to carry into effect the more enlarged rule of equity, which exists in another country, upon a transaction taking place there, as appears by the following case : By the law of Russia, 66 If, in case of unpaid debts or bankruptcies, any body has reason to suspect [354] "that the debtor or bankrupt has any thoughts

"of making the creditor lose, and therefore loadeth on

(b) Quod vendidi, non aliter sit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine datum, vel etiam fidem habuerimus emptori sine ulla satisfactione. Dig. 18. 1. 19. See also id. eod. tit. 53, and Dig. 19. 1. 13. 8. and 14. 4. 5. 18.

(c) Domat's Civil Law, book 4. tit. 5. sect. 2. art. 3. See also the notes of the same author on that article, and on book 3. tit. 1. sect. 5. art. 3. Where it appears that by the custom of some parts of France a

person, who has sold goods expecting to be paid immediately, may, if he is not paid, retake the goods even out of the possession of a subsequent purchaser.

(d) In case of a sale of land, if the purchase money is not paid, the Court of Chancery considers the purchaser as a trustee for the seller. Pollexfen v. Moore, 3 Atkins, 272, and see Blackburn v. Gregson, 1 Brown's Rep. in Chancery, 420.

"board of ship or vessel goods or cargo, in such a case "the creditor is to give notice in town (e) to the head "Judge of the Court, (in districts to the Chief), that “the ship or vessel, or goods, or the whole cargo, should "be retained time enough until the full payment is "made to whom due." "In consequence whereof, and " by virtue of that law, if the seller or shipper, in case "of bankruptcies, can identify that the merchandize "belonging to him is in Russia in ships, warehouses, or "wherever they may be, in such a case the goods must "be given back to the sellers or shippers, being their property, and cannot be brought in concurs" (f), that is, into the general mass of his effects to be distributed among his creditors. Messrs. Bohtlingk & Co. of St. Petersburgh, in pursuance of directions from one Crane of London, and as factors for him, shipped a cargo of Russian commodities at St. Petersburgh on board a ship chartered by Crane, and sent invoices thereof, and a bill of lading of part to him, but learning before the ship's departure that some bills, drawn by them on him in consequence of a previous transaction, were unpaid,

they procured from the master of the vessel bills [355] of lading to their own order, and sent them to a friend in London, and informed Crane, that he might have the bills of lading upon giving security to their friend for payment of the bills of exchange to be drawn for the amount of the goods, otherwise their friend would sell the goods on Crane's account, and apply the proceeds in discharge of the bills of exchange. Crane in fact had committed an act of bankruptcy before any of the goods were shipped; on the arrival of

(e) Quare, Whether this should not be "towns" or "a town?”

(f) Mercantile Navigation Laws of Russia, published 25th June, 1781, sect. 138.