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session, as where the assent of the actual holder to the conclusion of the transitus was wanting, it still subsisted. Now, if the carrier has no right to refuse, his refusal, ipso facto, terminates the transitus. Lord Blackburn suggested (Contract of Sale, p. 239), “But perhaps, if the position of the carrier is such that it is his duty to obey the command of the vendee, his assent to do his duty would be implied by law, and his refusal, in fact, would, not prevent such an implication.” The rule remains that “if the carrier does not assent, and is not under any obligation to assent, the transitus is not ended." ibid.

In Lackington v. Atherton(trover for timber: dock company), it seems that the bailee did not "wrongfully” refuse, as the delivery order was informal.

(7.) Where part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods.

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This corresponds to section 42, and follows equally from Ex parte Cooper? (31 tons iron castings out of 114), cited there. The difference in language is noticeable; in section 42 it is " agreement to waive," and here “intention of giving up.” part delivery." The delivery of part operates as a

-a constructive delivery of the whole only where the delivery of part takes place in the course of the delivery of the whole, and the taking possession by the buyer of that part is the acceptance of constructive possession of the whole : " Willes, J., in Bolton v. Lanc. & York. Railway Co. (goods at railway station : refusal to accept). See Lickbarrow v. Mason?

18 Scott, N. R. 38 ; 7 M. & G. 360 ; 8 Jur. 406 ; 13 L. J. C. P. 140. (1844. 2 11 Ch. D. 68 ; 48 L. J. Bk. 49; 40 L. T. 105; 27 W. R. 518. [1879.

“Acts, such as taking possession of part of the goods, taking samples, or the like, have not in themselves, as a matter of law, any effect on the character in which the possession of the residue is held, but are no more than evidence showing the intention of the parties as to the capacity in which that possession is to be held.” Sce Blackburn, Contract of Sale, (1845 edition) p. 252. Jones v. Jones: (wheat in ship : 70 out of 80 quarters taken),

3 where taking part was taking the whole, and Dixon v. Yates + (46 puncheons of rum) the converse.

How stoppage in transitu is effected.

46.-(1.) The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee or custodier in whose possession the goods are. Such notice

may be given either to the person in actual possession of the goods or to his principal. In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer.

Example.-A., an unpaid seller of goods to B., demanded the bills of lading from C., the shipowner in London, when the goods were on their way to Shanghai, and B. became insolvent. B.'s trustee in bankruptcy

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.]

? 1 S. L. C. 736; 2 T. R. 63; 1 H. Bl. 357; 6 East, 21; 5 T. R. 367, 683. [1790.]

38 M. & W. 431. [1841.]
. 5 B. & Ad. 313 ; 2 N. & M. 177. (1833.]

a

also claimed the bills. Held, that the demand of the bills of lading from the shipowner was an effectual stoppage in transitu (Ex parte Watson 2).

It seems from Phelps v. Comber (goods to Pernambuco: B/E on Liverpool dishonoured), that a notice to stop goods in transitu cannot be effectual if addressed to the consignees only, and not to the owner or master of the ship which carries them. See the judgment of Fry, L.J.3

in actual possession.—Parke, B., said, in Whitehead v. Anderson + (bankrupt buyer's trustee touched timber on board) “. . . to make a notice effective as a stoppage in transitu, 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

at such a time, and under such circumstances, that the principal, by the exercise of reasonable diligence, may communicate it to his servant in time to prevent the delivery to the consiguee.”

This was followed and approved in Bethell v. Clark 5 (10 hogsheads hollow ware, “ Darling Downs”).

.

(2.) When notice of stoppage in transitu is given by the seller to the carrier, or other bailee or custodier in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller. The expenses of such re-delivery must be borne by the seller.

Dr. Lushington, in giving judgment in “ The Tigress,"

. said, “I think there are cases without number to show

» 6

1

1

15 Ch. D. 35 ; 46 L. J. Bk. 97; 36 L. T. 75 ; 25 W. R. 489. [1877.]

2 29 Ch. D. 813; 54 L. J. Ch. 1017 ; 52 L. T. 873 ; 33 W. R. 829. [1885.]

3 29 Ch. D. 826.
4 9 M. & W. 533, 534 ; 11 L. J. Ex. 157. [1812.]
5 19 Q. B. D. 553 ; 57 L. T. 627 ; 36 W. R. 185. [1887.)

6 32 L. J. Adm. 97, 102 ; B. & L. 38 ; 9 Jur. N. S. 361 ; 8 L. T. 117 ; 11 W. R. 538. [1863.]

that the right to stop means the right not only to counter-
mand delivery to the vendee, but to order delivery to the
vendor. Were it otherwise, the right to stop would be
useless, and trade would be impeded.”

Effect of subsale or pledge by buyer.

1

Re-sale by Buyer or Seller.
47.–Subject to the provisions of this Act, the
unpaid seller's right of lien or retention, or
stoppage in transitu is not affected by any sale, or
other disposition of the goods, which the buyer
may have made, unless the seller has assented
thereto.

Provided that where a document of title to
goods has been lawfully transferred to any person
as buyer or owner of the goods, and that person
transfers the document to a person who takes the
document in good faith and for valuable considera-
tion, then, if such last mentioned transfer was by
way of sale the unpaid seller's right of lien or
retention or stoppage in transitu is defeated, and
if such last mentioned transfer was by way of
pledge or other disposition for value, the unpaid
seller's right of lien or retention or stoppage in
transitu can only be exercised subject to the rights
of the transferee.

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sale, or other disposition of the goods.— See Dixon v. Yates, where Littledale, J., said,“ So long as goods sold and unpaid for remain in the immediate possession of the vendor, he may refuse to deliver them, and if they remain

15 B. & Ad. 313 ; 2 N. & M. 177 (46 puncheons of rum). [1833.] : 5 B. & Ad. 329.

a

in the possession of his agent, i.e., a warehouseman or carrier, he may stop them ... a second vendee of a chattel cannot stand in a better situation than his vendor.” And Parke, J., said, “If they (the sellers] had parted with the actual possession, and the goods had remained in the hands of a carrier, they would have been entitled to stop them in transitu, unless the sub-purchasers had taken actual possession."

Provided that, dc.-See The Factors Act, 1889, section 10 (Appendix, post) : Effect of transfer of documents of title on seller's lien or right of stoppage in transitu.

lien or stop

48.—(1.) Subject to the provisions of this Sale not

generally re section, a contract of sale is not rescinded by the scinded by mere exercise by an unpaid seller of his right of pages in lien or retention or stoppage in transitu.

transitu.

3

Lord Denman, C.J., said, in Martindale v. Smith 3 (6 stacks of oats), vid. sup. 38 (1), (a): "For the sale of a specific chattel on credit, though that credit may be limited to a definite period, transfers the property in the goods to the vendee giving the vendor a right of action for the price and a lien upon the goods, if they remain in his possession, till that price be paid,” and (on p. 396), “The vendor's right, therefore, to detain the thing sold against the purchaser must be considered as a right of lien till the price is paid, not a right to rescind the bargain." This was cited with approval by Lord Chelmsford in Page v. Cowasjee 4 (ship retaken from buyer and re-sold); and in 1867 Cairns, L.J., said, in Schotsmans v. Lanc. & York. Ry. Co. (buyer's ship used as general trader) : “It is

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1 P. 341.
2 52 & 53 Vict. c. 45.
3 1 Q. B. 389, 395 ; 1 G. & D. 1; 5 Jur. 932. [1841.]

4 L. R. 1 P. C. 127 ; 3 Moo. P. C. N. S. 499 ; 12 Jur. N. S. 361; 14 L. T. 176. [1866.]

i L. R. 2 Ch. 332, 340 ; 36 L. J. Ch. 361 ; 16 L. T. 189 ; 15 W. R. 537. [1867.]

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