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statement of the law by Lord Blackburn, in his judgment in Kemp v. Falk 1 (salt shipped: B/L to bank. See post, section 44).
See Bloxam v. Saunders ? (hops re-sold by vendor), and Ex parte Cooper, where a delivery by the master of a ship of 30 tons of iron out of a cargo of 114 tons was held not to be a constructive delivery of the whole cargo, so as to preclude the stoppage of the remainder upon the insolvency of the consignee. Brett, L.J., said, "It is the mere ordinary case of taking the delivery of a whole cargo in partial consecutive deliveries."
Semble, that the delivery of an essential part of a machine would operate as a delivery of the whole.
agreement to waive.- Not a mere intention, as in section 45 (7), post.
43.-(1.) The unpaid seller of goods loses his Termination
other bailee or custodier for the purpose of
ing the right of disposal of the goods;
obtains possession of the goods ; (c.) By waiver thereof.
(2.) The unpaid seller of goods, having a lien or right of retention thereon, does not lose his lien or right of retention by reason only that he has obtained judgment or decree for the price of the goods.
17 App. Ca. 573, 586 ; 52 L. J. Ch. 167 ; 47 L. T. 454. [1882.] 2 4 B. & C. 941 ; 7 D. & R. 396. [1825.] 3 11 Ch. D. 68; 48 L. J. Bk. 49; 40 L. T. 105 ; 27 W. R. 518. [1879.] 4 11 Ch. D. at p. 74.
(a.) The unpaid seller has parted with the property in the goods and with the possession. “As long as the goods remain in the warehouse of the vendor, or in the hands of one who holds as his agent, his lien upon them for the unpaid price remains. But, when once they have got into the possession of an agent for the buyer, the vendor parts with his lien” (Willes, J., in Bolton v. The Lanc. & York. Railway Co.).
(6.) Compare :
“ The arrival which is to divest the vendor's right of stoppage in transitu must be such that the buyer has taken actual or constructive possession of the goods, and that cannot be so long as he repudiates them.” ibid.
lawfully. It seems to be otherwise with regard to stoppage in transitu (see Whitehead v. Anderson 2) (bankrupt buyer's trustee touches timber on board), post, section 45 (2). See also 45 (6)," wrongfully.”
(c.) waiver.—e.g., taking a bill of exchange as payment (Horncastle v. Farran 3). “It is well established ... that if a security is taken for the debt for which the party has a lien upon property of the debtor, such security being payable at a distant day, the lien is gone” (Tindal, C.J., Hewison v. Guthrie* (trover for a policy of insurance).
An express security excludes a general lien : cp. Chambers v. Davidson 5 (West India Estates : consignee: general lien).
(2.) has obtained judgment. This holds good, even if the judgment debt is to be paid for by instalments, and one such instalment has been paid (Scrivener v. The Great Northern Railway Co.).
1 L. R. 1 C. P. 431, 439 ; 35 L. J. C. P. 137 ; 12 Jur. N. S. 317; 13 L. T. 764 ; 14 W. R. 430. [1866.]
2 9 M. & W. 518 ; 11 L. J. Ex. 157. [1842.]
5 L. R. 1 P. C. 296; 36 L. J. P. C. 17; 12 Jur. N. S. 967 ; 15 W. R. 534. [1866.]
6 19 W. R. 388. [1871.]
Stoppage in transitu.
44.–Subject to the provisions of this Act, Right of when the buyer of goods becomes insolvent, the transitu. unpaid seller who has parted with the possession of the goods has the right of stopping them in transitu, that is to say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price.
This is the law laid down in the old case of Lickbarrow v. Mason ;7 it is amplified and explained in the sections which follow. See the judgment of Lord Esher, M.R., in Bethell v. Clark? (10 hogsheads hollow ware, “Darling Downs”), approved in Lyons v. Hoffnung,4 infra.
Note.—The unpaid seller can stop the goods while they remain in the carrier's hands, although the buyer has resold them, and they are on their way to the subpurchaser : per Parke, J., in Dixon v. Yates 3 (46 puncheons of rum). See section 47, post.
when the buyer becomes insolvent.-See the interpretation clause, 62 (3), post.
Unpaid seller.-Defined in section 38, ante.
in course of transit.-It was decided by the Privy Council in Lyons v. Hoffnung, that whether or not delivery has been made to the carrier, in such sense as to pass the property to the purchaser as owner, the goods, though held by the carrier as the purchaser's agent, are in transitu till the destination is reached, and that the vendors have the right to stop them.
1 2 T. R. 63; 1 H. Bl. 357; 6 East, 21 ; 1 S. L. C. 737 ; 5 T. R. 683. [1793.]
2 20 Q. B. D. 615, 617 ; 19 Q. B. D. 553; 57 L. T. 627; 36 W. R. 185 [1888.]
3 5 B. & Ad. 313, 341 ; 2 N. & M. 177. [1833.]
As to the effect of the stoppage on the contract, see section 48.
Duration of transit.
45.(1.) Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee or custodier for the purpose of transmission to the buyer, until the buyer or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier.
(2.) If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end.
(3.) If, after the arrival of the goods at the appointed destination, the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee or custodier for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer.
“The right to stop in transitu upon the bankruptcy of the buyer remains, even when the credit has not expired, until the goods have reached the hands of the vendee, or of one who is his agent, as a warehouseman, or a packer, or a shipping agent, to give them a new destination : Willes, J., in Bolton v. Lanc. & York. Railway Co.? (goods at railway station : refusal to accept).
1 L. R. 1 C. P. 431, 439 ; 35 L. J. C. P. 137 ; 13 L. T. 764 ; 12 Jur. N. S. 317 ; 14 W. R. 430. [1866.]
destination.—The question is, what is the destination of the goods as between the buyer and the seller. “It can only be said that goods are sent to their destination’ when they are sent to the purchaser, or to the person to whom he directs them to be sent—to a particular person at a particular place. That is the meaning of 'destination’in a business sense. In business, 'destination’ means that you must give not only the name of the place to which, but also the name of the person to whom, goods are to be sent”: per Brett, M.R., in Er parte Miles 1 (boots for Jamaica).
Note. After considering this and contrary cases, Mathew, J., said, in Bethell v. Clark? (10 hogsbeads hollow ware, “Darling Downs”) “. . . although the fact that a person has been named by the buyer to the seller to receive the goods is some evidence, it is by no means conclusive evidence that the receipt by that person is the end of the transit." The Court (Mathew and Cave, JJ.), followed Ec parte Rosevear China Clay Co.3 (clay on board: no B'L), but Cave, J., said, “I am unable to reconcile that case with some of the dicta in Ex parte Miles."I On appeal,4 Lord Esher, M.R., distinguished Ec parte Viles, on the ground that in that case the goods had arrived at their destination, when fresh orders were necessary to send them further; here, no fresh orders were necessary to send the goods to their final destination, so the transitus was not ended till they arrived there. Cp. the judgment of Lord Ellenborough (approved by Lord Esher, M.R., here) in Dixon v. Baldwen5 (forwarding agent, Hull).
(1.) In Valpy v. Gibson, goods were sold on credit and delivered to an agent of the buyer; “the complete property
| 15 Q. B. D. 33, 41; 54 L. J. Q. B. 567. (1885.] ? 19 Q. B. D. 553, 560, 562 ; 57 L. T. 627; 36 W. R. 185. (1887.)
3 11 Ch. Div. 560, 568 ; 48 L. J. Bk. 100; 40 L. T. 730 ; 27 W. R. 591. [1879.]
4 20 Q. B. D. 615; 59 L. T. 808. [1888.]