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and possession having vested in him they became his absolutely, without any lien or right of the vendors attaching to them any more than on any other property of his," and therefore “their delivery to the sellers to be repacked could not have the effect of creating a lien for the price without an agreement to that effect.” Per Wilde, C.J.

to a carrier.-In Ex parte Rosevear China Clay Co. (clay on board : no B/L), James, L.J., said, “The principle is this—that when the vendor knows that he is delivering the goods to someone as carrier, who is receiving them in that character, he delivers them with the implied right, which has been established by the law, of stopping them so long as they remain in the possession of the carrier as carrier.” See Lyons v. Hoffnung? (ante,

? section 44).

his agent in that behalf.See Dixon v. Baldwen 3 (forwarding agent, Hull); Kendal v. Marshall 4 (cotton waste : no place for delivery); followed in Ex parte Miles, supra.

Note.—A direction to the seller to send the goods to a forwarding agent in order that they may be sent on to a further place, makes the "transit” last till they arrive at the latter place. Per Brett, L.J., in Kendal v. Marshall.4

, See sub-section (5), post, “circumstances of the particular case.”

“If the goods are actually delivered to an agent of the vendee, employed by him to receive delivery, the vendor is divested of his right of stoppage in transitu(unless he has imposed terms, e.g. by endorsement of the bills of lading). Per Lord Chelinsford in Schotsmans v. Lanc. & York. Ry. Co. (buyer's ship used as general trader). And

1 11 Ch. Div. 560, 568 ; 48 L. J. Bk. 100 ; 40 L. T. 730 ; 27 W. R. 591. [1879.]

15 App. Ca. 391 ; 59 L. J. P. C. 79 ; 63 L. T. 293. (1890.] 3 5 East, 175. [1804.]

4 11 Q. B. D. 356, 365 ; 52 L. J. Q. B. 313 ; 48 L. T. 951 ; 31 W. R. 597. [1883.]

5 15 Q. B. D. 39, 44 ; 54 L. J. Q. B. 567. [1885.]

6. L. R. 2 Ch. 332, 335; 36 L. J. Ch. 361 ; 16 L. T. 189 ; 15 W. R. 537. [1867.]

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James, L.J., said in Ex parte Rosevear, &c. (supra): “ The authorities show that the vendor has a right to stop in transitu until the goods have actually got home into the hands of the purchaser or of someone who receives them in the character of his servant or agent."

There is a definition of transitus in Abbott on Merchant Ships and Seamen, thus quoted and amplified by Brett, L.J., in Kendal v. Marshall? (loc. cit. at pp. 364-5). “Goods are deemed to be in transitu not only while they remain in the possession of the carrier, whether by water or land, and although such carrier may have been named and appointed by the consignee; but also when they are in any place of deposit, connected with the transmission and delivery of them ... having been there deposited by the person who is carrying them for the purposes of transmission and delivery, until they arrive at the actual possession of the consignee, or at the possession of his agent, who is to hold them at his disposal and to deal with them accordingly.”

agent. This includes a sub-buyer, Dixon v. Yates 3 (46 puncheons of rum); and a trustee in bankruptcy, Scott v.

Pettit 4 (packer's warehouse : ulterior destination).

(2.) See the judgments of Brett, Cotton, and Bowen, L.JJ., in Kendal v. Marshall. The law is stated by Parke, B., in Whitehead v. Anderson 5 : “If the vendee take them out of the possession of the carrier into his own before their arrival, with or without the consent of the carrier, there seems to be no doubt that the transit would be at an end : though in the case of the absence of the carrier's consent it may be a wrong to him for which he would have a right of action.”

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1 11 Ch. Div. 560, 568; 48 L. J. Bk. 100 ; 40 L. T. 730 ; 27 W. R. 591. [1879.]

2 11 Q. B. D. 356, 365 ; 52 L. J. Q. B. 313 ; 48 L. T. 951 ; 31 W. R. 597. [1883.]

3 5 B. & Ad. 313; 2 N. & M. 177. [1833.]
4 3 B. & P. 469. [1803.]
• 9 M. & W. 518, 534 ; 11 L. J. Ex. 157. [1842.]
N.S.G.

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“The vendee can always anticipate the place of destination if he can succeed in getting the goods out of the hands of the carrier.” Bowen, L.J. (loc. cit.).

See Blackburn on the Contract of Sale, 1845 edition,

P. 254.

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obtains delivery.--Semble, whether wrongfully or not as regards the carrier, Whitehead v. Anderson 1 (bankrupt buyer's trustee touches timber on board). The question is “whether the consignee has taken possession, not whether the captain has intended to deliver it,” Parke, B. (9 M. & W. at p. 529). See 43 (b) supra,lawfully;" and sub-section (6) post, (

" wrongfully.(3).

“ Unless something equivalent to an attornment is shown on the part of the carrier, so that he has altered his position from that of carrier, and holds them in another capacity, it seems to me the transitus cannot be at an end. So long as the carrier holds the goods as carrier, the mere fact of a delivery of part to the purchaser does not prevent the unpaid vendor from stopping the remainder in transitu." Brett, L.J., Ex parte Cooper? (31 tons iron castings out of 114 tons).

Cave, J., said in Bethell v. Clark 3 (10 hogsheads hollow ware,“ Darling Downs”): "The destination may be fixed by the contract of sale or by directions given by the purchaser to the vendor. But however fixed, the goods have arrived at their destination, and the transitus is at an end when they have got into the hands of someone who holds them for the purchaser, and for some other purpose than that of merely carrying them to the destination fixed by the contract or by the directions given by the purchaser to the vendor.”

Note.- Where the capacity in which an agent holds possession is ambiguous, the destination originally contemplated by the purchaser is exceedingly material, but not

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1 9 M. & W. 518, 534 ; 11 L. J. Ex. 157. (1842.]

2 11 Ch. Div. 68; 48 L. J. Bk. 49; 40 L. T. 105 ; 27 W. R. 518. [1879.]

3 19 Q. B. D. 553, 561 ; 57 L. T. 627 ; 36 W, R. 185. [1887.]

otherwise. See Blackburn on the Contract of Sale (1845 edition), p. 254.

If the carrier acknowledges, &c.—Query: If the carrier does not attorn by agreement to consider himself as bailee for the buyer, is he, because he has performed his contract of carriage, bound as a matter of law to act in this varied character when required? See Blackburn, p. 260.

(4.) If the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back.

Willes, J., said, in Bolton v. Lanc. & York. Railway Co., (goods at railway station : refusal to accept) : “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.”

(5.) When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer.

See Ex parte Rosevear China Clay Co.(clay on board : no B/L), and comments on that case in Kendal v. Marshall 3 (cotton waste: no place for delivery). Cotton, L.J. said, “In that case the putting the goods on board the

1 L. R. 1 C. P. 431, 440; 35 L. J. C. P. 137 ; 13 L. T. 764; 12 Jur. N. S. 317 ; 14 W. R. 430. [1866.]

2 11 Ch. Div. 560 ; 48 L. J. Bk. 100; 40 L. T. 730 ; 27 W. R. 591. [1879.]

3 11 Q. B. D. 356, 367 ; 52 L. J. Q. B. 313 ; 48 L. T. 951 ; 31 W. R. 597. (1883.]

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vessel was an indication that the goods were to go on a voyage, which was not only not finished, but was not even begun. In that case the transit was not at an end." Note.-" The delivery in the purchaser's own ship is a

“ final delivery at the place of destination.” Parke, B., in Van Casteel v. Booker 1 (goods on buyer's vessel : B/L blank), quoted with approval by Lord Chelmsford in Schotsmans v. Lanc. & York. Railway Co.” (buyer's ship used as general trader).

What was the real intention of the vendor is a question of fact: see Van Casteel v. Booker. 1

(6.) Where the carrier or other bailee or custodier wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end.

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See Bird v. Brown: (goods stopped by holder of B/E on bankrupt buyer). Rolfe, B., in delivering the judgment of the Court, said : “The transitus was at an end when the goods had reached the port of destination, and when the consignees, having demanded the goods and tendered the amount of the freight, would have taken them into their possession but for a wrongful delivery of them to other parties.”

wrongfully.-In the words of Lord Blackburn,“ wrongful" seems to mean so tortious as to render the middleman liable in trover” (see Contract of Sale, p. 260). The emphasis of this rule is obviously on the word "wrongfully," thus removing the difficulty expressed by Lord Blackburn in his book on Sale, namely, that the apparent result of the cases was, that if the carrier refused to give up the goods the vendee would put himself in a better position as regarded his vendor, by forcibly taking pos

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1 2 Ex. 691 ; 18 L. J. Ex. 9. [1848.]

; 2 L. R. 2 Ch. 332, 336 ; 36 L. J. Ch. 361 ; 16 L. T. 189 : 15 W. R. 537. [1867.]

3 4 Ex. 786, 797 ; 19 L. J. Ex. 154 ; 14 Jur. 132. [1850.]

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