Abbott on

its aid to carry into effect the more enlarged rule of equity which Shipping. exists in another country, upon a transaction taking place there, as appears by the following case. By the law of Russia, "If, in case of unpaid debts or bankruptcies, anybody has reason to suspect that the debtor or bankrupt has any thoughts of making the creditor lose, and therefore loadeth on board of ship or vessel goods or cargo, in such a case the creditor is to give notice in town a 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 merchandise 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,' "b that is, into the general mass of the buyer's effects, to be distributed among his creditors. Messrs. B. & Co., of St. Petersburg, in pursuance of directions from one C., of London, and as factors for him, shipped a cargo of Russian commodities at St. P., and on board a ship chartered by C., 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 of lading to their own order, and sent them to a friend in L., and informed C. 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 C.'s account, and apply the proceeds in discharge of the bills of exchange. C., in fact, had committed an act of bankruptcy before any of the goods were shipped. On the arrival of the ship in L., his assigneess demanded the goods. of the master, and offered to pay the freight, &c., but the master delivered them to the friend of B. & Co., on their account, in conformity to their indorsement of the bills of lading. Whereupon the assignees of C. brought an action against the master; and the Court held that the law of Russia in this case ought to prevail, although B. and Co. had not actually taken the goods out of the ship, or instituted legal process for the recovery of them, considering the master's signature of bills of lading to their order to be equivalent to a stopping in transitu, or re-delivery to them, and to have rendered it unnecessary for them to have recourse to the compulsory process of the law. In this case, recourse was had to the law of Russia to sustain the right of the consignor, because the ship had been chartered by the consignee, and it was then supposed that the right of stopping in transitu did not apply to the case of goods shipped on board a vessel of that description. The contrary, however, has been since decided in another case that arose out of the same transaction.d

a Qu. Whether this should not be
❝ towns
or "a town?"

b Merc. Nav. Laws of Russia, pub

lished 25th June, 1781, sect. 138.

Inglis v. Usherwood, 1 East, 515. d Bohtlingk v. Inglis, 3 East, 381.

But to return to the law of England. Let us consider, 1st., in what CH. XVIII. cases, generally, goods may be stopped in transitu; 2ndly, under what circumstances goods are deemed to be in transitu, and what not; and, lastly, by what acts the right of the consignor may be taken away before the end of the transit.

stopped.

1st, it should be observed that the act of stopping in transitu is In what an adverse act on the part of the consignor against the consignee. cases goods If a consignee, after an act of bankruptcy, deliver up the bills of may be lading to another person, upon his undertaking to apply the proceeds of the goods in discharge of bills of exchange drawn for the price, and he accordingly receive the goods, he cannot retain them against the assignees of the bankrupt, although the original consignor afterwards approve of the arrangement; and it seems that the law would be the same, even if the person with whom such an arrangement should be made, were at the time an agent of the consignor. But if the delivery of goods be countermanded by the consignor, the goods having been consigned upon credit, and the consignee having failed or become bankrupt, it is the duty of the master to obey the countermand, and deliver the goods, not to the consignee, but to the order of the consignor. Such countermand and substitution of a new consignee are most easily effected, if the bill of lading is originally made for delivery to the order of the consignor; because in that case the consignor may, if he has reason to suspect the failure, or is afterwards apprised of it, send another part of a bill of lading to a correspondent at the port of destination, indorsed in blank, or for delivery to him. But the countermand may also be made in the event before mentioned, if the consignee is originally named in the body of the bill of lading. For the right of stopping in transitu does not depend upon a supposition that the property has not passed from the consignor, but, on the contrary, is founded on an admission that the property has become vested in some other person. No question can ever be made upon the right of a man to seize his own goods; but the question in cases of stoppage in transitu generally is whether, under the circumstances, the consignor may divest the property which has passed to another, and revest it again in himself.e

A person abroad, who, in pursuance of orders sent by a merchant of this country, purchases goods on his own credit of others whose names are unknown to the merchant, and who charges the merchant a commission on the price, and consigns them to him, is a consignor within the meaning of this rule; in reality, he is the vendor,

a Siffken v. Wray, 6 East, 371.

b To make a notice effective it must be given to the person who has the immediate custody of the goods; or, if given to the principal when several have 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 consignee. Whitehead v. Anderson,

9 M. & W. 534.

"Failed." The usual term is "insolvent," which means a general inability to pay his debts; see Biddlecombe v. Bond, 4 Ad. & E. 332.

d Burghall v. Howard, 1 H. Bl. 365. When the goods are put on board the consignee's own ship, post, p. 241.

e See Lickbarrow v. Mason, 1 Smith's L. C. 388.

f Feise v. Wray, 3 East, 93.

Abbott on and the consignee the vendee. So also is a person who sends goods Shipping. to be sold on the joint account of himself and the consignee.a

Who can

b

But

a person who becomes surety for the consignee, by accepting bills drawn for the price of goods by the vendor, is not a consignor within this rule, although the bills be sent through his hands to the consignee. If the consignor indorse and transmit the bill of lading, in pursuance of an agreement, and in trust to indemnify against acceptances, or the like, he cannot countermand the delivery and take back the goods, while the trust and object of the consignment remain unsatisfied; nor must the master re-deliver them to him. So, if goods be sent by order of the consignee, on his account, and at his risk, and the consignor draw bills of exchange upon him for the price, and indorse and transmit the bill of lading, the consignor cannot take possession of the goods at the place of destination, and insist upon immediate payment as the condition of delivering them, the consignee being willing to accept the bills and not having failed in his circumstances.d

This right of stopping goods in transitu does not belong to a pernot excrcise son who had only a lien upon them, without a property in them; the right. and therefore, if a fuller or dyer, who has fulled or dyed cloths, and who is not obliged to part with the possession of them until the price of fulling or dying them is paid, put them on board a ship for delivery to his employer, in pursuance of his orders, and the employer fail, the fuller or dyer cannot countermand the delivery, because his lien and right to retain the cloth ceased as soon as he parted with the possession of them. But in a recent case it was held that a person in whom, at the time of the stoppage, the property had not vested, but who had only an interest in a contract for the delivery of them to him, might exercise the right of stoppage in transitu.f

Effect of.

Bill given

for price,

&c.

Whether stoppage in transitu rescinds the contract, and so revests the property, or merely restores the right of possession, has not been solemnly decided. The better opinion seems to be that it does not

rescind the contract.g

A consignor may exercise this right, although a part of the price of the goods has been paid by the consignee, or a bill of exchange has been accepted by him for the whole, and indorsed over to a third person. And an usage for land carriers to retain goods as a security for the general balance of account due from the consignee will not prevent the consignor from reclaiming them out of their hands, upon paying the price of the carriage of the particular goods only. Nor will a similar usage, when the carrier is to be paid by the consignor,

authorise the carrier to detain goods from the consignee who has paid CH. XVIII. the price of them.a

2. Goods are deemed to be in transitu not only while they remain When goods in the possession of the carrier, whether by water," or land; and are deemed although such carrier may have been named and appointed by the tobe in tranconsignee; but also when they are in any place of deposit connected with the transmission and delivery of them, and until they arrive at the actual or constructive possession of the consignee.

If goods are sent by sea to a certain port to be forwarded from thence by land to the residence of the consignee, and upon the ship's arrival at the port are delivered to a wharfinger, who receives them on the part of the consignee, to be forwarded to him accordingly, they are subject to this right of the consignor in the hands of the wharfinger;d and the law is the same in case of delivery to a packer appointed by the buyer; unless the warehouse of the packer be used by the buyer as his own, and be the place of the ultimate destination of the goods.f So, as I have before observed, the master of a ship chartered wholly by the consignee is now held to be a carrier in whose hands goods may be stopped. But where a ship had been hired by the consignee for a term of years, and was fitted out, victualled, and manned by him, and goods were put on board thereof, to be sent by him on a mercantile adventure, for which he had bought them, it was held that the consignor could not stop them; the consignee being in that case the owner of the ship pro tempore, and the delivery of the goods on board thereof being equivalent to a delivery into a warehouse belonging to him.h But this case of Fowler v. M Taggart, even as explained in Bohtlingk v. Inglis, is not now, at least, an authority for so broad a proposition. For it is now clear that there may be a delivery on board the purchaser's own ship, and yet not a delivery to him. For instance, goods are put on board the purchaser's own ship, and the bill of lading makes them deliverable to consignee or assigns; the form of the bill of lading shows that the consignor did not intend, by the act of shipment, to part with the right of disposing of them, and the jury would be directed so to conclude.i In a case of goods sent by a waggon, which arrived at the inn in L., where the waggon usually put up, and were there attached by a creditor of the

a Butler v. Woolcot, 2 N. R. 64; Nicholls v. Le Feuvre, 2 Bing. N. C. 83. b Stokes v. La Riviere, cited in 3 T. R. 466; in the possession of a third party, Gibson v. Carruthers, 8 M. & W. 328.

c Hunter v. Beal, cited in 3 T. R. 466; James". Griffin, 2 M. & W. 634; Wentworth v. Outhwaite, 10 M. & W. 450, and cases cited. Place of destination means the place to which they were to be conveyed by the carriers, and where they would remain unless fresh orders should be given for their subsequent disposition." See also Dodson v. Wentworth, 5 Sc. N. C. 831; Smith v. Goss, 1 Camp. 282; Stokes v. La Riviere,

cited in 3 East, 397; Dixon ". Baldwen,
5 East, 174; Allan v. Gripper, 2 Cr. &
J. 218; Foster v. Frampton, 6 B. & C.
107; Coates v. Railton, Ib. 427.

d Mills v. Ball, 2 B. & P. 457.

e Hunt v. Ward, cited in 3 T. R. 467. f Scott v. Pettit, 3 B. & P. 469; see James ". Griffin, 2 M. & W. 634.

8 Bohtlingk v. Inglis, 3 East, 381; ante, p. 238.

h Fowler v. M Taggart, cited in 7 T.
R. 442.

Wait v. Baker, 2 Exch. 1; Van
Casteel v. Booker, Ib. 691; Turner v.
Trustees of L. Docks, 6 Ib. 332; Brown
v. North, 8 Ib. 5.

situ.

R

Abbott on Shipping.

vendee, according to the custom of L., and which in that situation
were claimed by his assignee, he having become bankrupt, and
marked by the assignee, it was held that the vendor could not
afterwards countermand the delivery, the goods being deemed to
have arrived at the end of their destined journey, and the assignee
to have done that which was equivalent to taking actual possession,
the removal of the goods being impracticable on account of the
attachment.a The question arose between the vendor and the
assignee, who, after a claim made by the vendor, obtained possession
of the goods, the attachment being taken off. An attachment of this
sort laid upon goods in the hands of a wharfinger does not defeat
the right of the consignor. A delivery of goods to an agent of
the buyer residing at a sea-port, with whom they are to remain
until the buyer sends orders for shipping them to a foreign country,
is in effect a delivery to the buyer. As between him and the
seller the goods have arrived at the end of their journey. The
subsequent shipment would be the commencement of a new journey
under the direction of the buyer. Where a ship, which ought to
have performed quarantine, came into port without doing so, and
the assignees of the consignee, who had received the bill of lading,
but had become bankrupt, went on board immediately, and claimed
the goods, and opened some of the chests, and put a person on board
to keep possession, and the ship being on the same day ordered out
of port to perform quarantine, an agent of the consignor, having
received another bill of lading, claimed the goods of the master
during the performance of quarantine; it was held by Ld. Kenyon,
at the trial of an action brought by the consignor against the
assignees, who afterwards obtained possession of the goods, that the
right of the consignor to stop the goods in transitu existed when
the claim was made on his behalf, because the voyage was not at
an end until the performance of the quarantine, and the consignee
had no power to divest the right of stopping in transitu, by taking
possession before the conclusion of the voyage.
The plaintiff
obtained a verdict, and the opinion of his lordship was afterwards
sanctioned by the Court of K. B. on an application for a new trial.
The doctrine of this case is in exact conformity to the tenor of a
bill of lading, by which the master always engages to deliver the
goods at the place of destination, and which, therefore, gives no
authority to the consignee to demand them before their arrival at
that place. But it is still a moot point whether the consignee can
anticipate the regular determination of the transit.e Thus much,
however, is settled,—that if the carrier's consent be not obtained,
and the consignee take the goods, the right of stoppage in transitu
is not determined thereby.f By an Act of Parliament made for

d

a Ellis v. Hunt, 3 T. R. 464.

b Smith v. Goss, 1 Camp. 282; Nicholls
v. Le Feuvre, 2 Bing. N. C. 83.

c Dixon v. Bald wen, 5 East, 175; see
also Leeds v. Wright, 3 B. & P. 320.
d Holst v. Pownal, 1 Esp. 242.
e Wright v. Lawes, 4 Esp. 82; Mills
v. Ball, 2 B. & P. 461; Oppenheim v.

Russell, 3 Ib. 54; Foster v. Frampton, 6 B. & C. 107; James v. Griffin, 2 M. & W. 633; Allan v. Gripper, 2 Tyr. 217; Tucker v. Humphrey, 4 Bing. 516; Nicholls v. Le Feuvre, 2 Bing. N. C. 83.

f Whitehead v. Anderson, 9 M. & W. 535; Jackson v. Nichol, 5 Bing. N. C. 508.