WHAT IT IS. Legal history of. Stoppage of goods in transitu is that exercise of the unpaid vendor's right, which arises in case of the bankruptcy or insolvency of the vendee while the goods are on their way, whereby he clothes himself again with legal possession thereof, and a lien thereon for the amount of the price. The introduction of this principle into the law of England is assigned to the Commissioners of the Great Seal, in the year 1690; it was engrafted on the law of Scotland by Lord Chancellor Thurlow and the House of Lords in 1790; and it was substituted for the previous law of France by the Code de 1 To Sir John Maynard therefore, and his colleagues, who were commissioners of the great seal till the 14th of May, 1690, unless the 21st of March, assigned by Vernon as the date of the decree, is to be regarded in consequence of the change introduced as to the time of commencing the year, as the 21st of March, 1691, thereby postponing the case a whole year, and making Sir John Trevor and his coleagues in the commission of the great seal the authors of this celebrated 2 Allan v. The Creditors of Stein, in Commerce, in 1807,' passing thence with modifications into the jurisprudence of most of the continental nations of Europe. By the law of this country, a sale of chattels immediately vests in the vendee the property in the goods and the right of possession, and in the vendor, a right to the price, with a lien on the goods, if they are in his possession, for the payment of it. If the vendor part with possession of the goods, his lien is gone and cannot be revived; but he still retains the right of stopping them in transitu if the vendee has in the meantime become bankrupt or insolvent. By the Roman law of sale, whilst the jus ad rem passed to the vendee, the jus in re remained in the unpaid vendor, notwithstanding the purchaser had obtained the goods. In every case, therefore, of sale and delivery without payment, that law implied a tacit hypothec of the goods for the price, and this presumption in favour of the vendor, could only be rebutted by proof of security given, or of sale and delivery upon credit, or of delivery on condition that if the price were not paid by a certain day, the sale should be void. We have already adverted to the fact that the Roman law of hypothec was necessarily subjected to modification in modern times by those nations who had based their jurisprudence on the Pandects; but, nevertheless, in case of the insolvency of the buyer, the former law of France continued to be such that the vendor who still lay out of his money, might seize the goods that he had sold, in the hands of the buyer, without any obligation to share them with the other creditors.* 1 Co. de Com. art. no. 576, 577. 2 Inst. 2. 1. 41, Venditæ vero res et traditæ non aliter emptori acquiruntur quam si is venditori pretium solverit, vel alio modo ei satisfecerit. Dig. 18. 1. 19, Quod vendidi [et tradidi] non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus emptori sine ulla satisfactione. And see ibid. § 53; Dig. 14. 4. 5, 17 & 18. Pothier, Pandectæ, 18. 3. 1, says, Lex Commissoria est ea, quæ inter venditorem et emptorem convenit, ut si intra præfinitum diem pretium solu tum non sit, res sit inempta; and Ulpian, Dig. 18. 3. 1, 1, says, Si fundus, commissoria lege, venierit, magis est sub conditione resolvi emptio, quam sub conditione contrahi videtur, i.e., it had not the effect of making the sale conditional, but of making it conditionally dissoluble, 1 Bell. Com. 3rd. ed. no. 289. 3 Ante, p. 59. Domat, Loix Civiles, liv. 4, t. 5, § 2, art. 3. See also the notes of the same author on that article, and on liv. 3, t. 1, § 5, art. 3, where it appears that by the custom of some parts of France a person, who had sold goods expecting France, however, and the other continental nations, after having adhered, with considerable fidelity, to the spirit and principles of the imperial legislation of Rome,' were induced by the events which followed the year 1789, to make concessions to modern usage and habits; and the authors of the Code de Commerce giving the preference to the English law of stoppage in transitu, abolished the doctrine known till then under the title of Revendication, as incompatible with the interests of commerce.' to be paid immediately, might, if the was not paid, have retaken the goods even out of the possession of a subsequent purchaser. See infra, note 2. 1 Those who desire to pursue this inquiry will find much assistance in 1 Bell's Com. 3d. ed. no. 236, where he refers to several of the continental lawyers to show the general acceptance which the doctrines of the Roman law on this subject, had with most of the continental nations prior to the French Revolution. If this view of the doctrine of law entertained by continental countries be correct, Lord Abinger is not supported in his statements upon that subject made in the cursory view he takes of the history of Stoppage in transitu in Gibson v. Carruthers, 8 M. & W. 336. Mr. Blackburn (on Sale), had already pointed out this inaccuracy of the noble and learned Chief Baron. The following is an extract from the Exposé des motifs d'une portion du livre 3 du Code de Commerce présenté au Corps Législatif, par le conseiller d'état Segur, in September, 1807. Le titre 3 contient une innovation importante et mérite par conséquent de fixer votre attention. le regardaient comme une injustice. Les redacteurs du projet de Code avaient supprimé et interdit toute revendication . . . Après un examen approfondi, on a reconnu que l'usage de la revendication était une source de procès et un moyen de fraude, que la sagesse voudrait en vain regler un usage qui n'est fondé ni sur le droit, ni sur l'équité, et que son plus grand inconvénient était surtout de laisser, par ce privilége, le sort des créanciers à la merci de la volonté du failli qui pouvait à son gré favoriser l'un, sacrifier l'autre, en conservant ou en denaturant les signes qui peuvent constater l'identité, et en retardant ou accélerant la vente des effets qui lui auraient été livrés. D'après ces considérations, on s'est décidé à ne permettre la revendication que pour la marchandise en dépôt pour celles qui sont en route, et qui n'ont pu encore être sujettés à aucune confusion dans les magasins de l'acheteur: nous l'admettons encore pour les remises en effets non encore échus, ou échus et non encore payés, si ces remises ont été faites avec le simple mandat d'en recouvrer et d'en garder la valeur à la disposition du propriétaire. Code de Com. par Favard-de-Langlade, Paris, 1807-12, tom. 2, p. 109. The differ ence there is between this extract and that which purports to be the same given in 1 Bell's Com. no. 199 note, may partly excuse me for giving it at such length, as I have no doubt it is now given correctly. The whole subject of Bankruptcy having undergone a change in the Although stoppage in transitu has been familiar to the Legal effect of. English law for so many years as a right of great practical importance, the very nature of it, and the precise effect operated thereby on the contract of sale, is at this day still matter of doubt,'-whether it be a rescission of the contract, or, what is rather the received opinion, a legal possessory right, by the exercise of which the vendor is again clothed with lawful possession of the goods, and entitled thenceforth to hold them until payment of the price. Distinguished names are associated with each of these views, and there are difficulties attending the acceptance of either; that which is the more consonant with principle is now in most favour with English jurists; but it is remarkable that no case has yet occasioned an express decision on the question by any of our courts. We will consider, in respect of this subject; First, When goods may be stopped so as to revest possession of them in the vendor; Secondly, Who of right may stop them; Thirdly, Under what circumstances; and Fourthly, In what way. First. This stoppage, in order to operate any valid effect to the advantage of the vendor, must be of the goods while in transitu. French Law since the first existence of the Code de Commerce, the title Revendication, is also revised with much difference of expression, but still substantially follows out the principles proper to Stoppage in transitu as known to our law. See Co. de Com. liv. 3, c. 10, De la Revendication, art. 574579. See the argument in Clay v. Harrison, 10 B. & C. 99; Wilmshurst v. Bowker, 5 Bing. N. C. 547; (in error) 8 Scott, N. R. 570; per Parke, B., Wentworth v. Outhwaite, 10 M. & W. 436, 452; per Lord Abinger, C. B., in Gibson v. Carruthers, 8 M. & W. 321, 336, "it is called in the courts of law a doctrine of equity, and in the courts of equity a doctrine of law." * Per Lord Abinger, C. B., in Wentworth v. Outhwaite, 10 M. & W. 436, 455; per Tindal, C. J., in Jenkyns v. Usborne, 7 M. & Gr. 678. 3 Per Lord Kenyon, C. J., in Hodg son v. Loy, 7 T. R. 440, 445; per Parke, B., Edwards v. Brewer, 2 M. & W. 375, 377; per Bayley, J., in Blox. am v. Saunders, 4 B. & C. 941, 948; per Parke, Alderson and Rolfe, BB., in Wentworth v. Outhwaite, 10 M. & W. 436, 452. 4 Per Parke, B., Wentworth v. Outhwaite, 10 M. & W. 436, 452. It seems impossible to say with Mr. Parsons, (Shipping, vol. i. 339), that this is but an extension of the lien of the Seller, without a grave misuse of well-defined legal terms, and no little confusion in point of legal doctrine; see Sweet v. Pym, 1 East, 4. It is a curious coincidence that the civilians were similarly divided as to the precise effect of a sale and delivery of goods without payment in respect of the question of credit. Did the traditio rerum imply giving credit? or, was the WHEN GOODS MAY BE VALIDLY STOPPED. In transitu. The transit defined relatively to possession. Possession ceded, absolutely or conditionally. The transit commences the instant that the vendor cedes possession; his lien for the price ceasing at the same instant, his risk then begins. The transit continues until the instant that the goods reach the actual or constructive possession of the vendee who is thenceforward clothed not only with the rights, but the possession proper to the owner. Possession is not ceded, or gained without assent. A concurrence of assent, therefore, essentially enters into a perfect transfer of possession, and whether there has been such a concurrence is a question of importance and difficulty when there is no removal of the goods from the place they occupied. Cases of this kind are numerous upon the objection of nondelivery within the statute of frauds,' and cases upon the revocation of the vendor's delivery order before it is acted upon so as to destroy his lien on the goods are also numerous and very analogous to those on stoppage in transitu." Here, as in cases upon the vendor's delivery order, it is frequently a question whether possession was absolutely ceded or conditionally only. A delivery order to weigh, or measure, and deliver to the vendee, is conditional when weighing or measuring is of the essence of the contract; and in that case a transfer in the wharfinger's books is no delivery until the weight or measure has been taken. On the other hand, if the weighing mentioned in the order is for the convenience of the purchaser only, it operates no postponement of the transfer of possession. Hence it is a general rule, that so long as any. thing remains to be done, in order to put the goods in a condition for delivery, or to ascertain by quantity the goods to be delivered, possession is not ceded, and consequently cannot have been transferred. re presumption of law in favour of a tacit 1 Chitty on Contracts, by Russell, 8 Scott, N. S. 38; Miles v. Gorton, 2 Cr. & M. 504; Townley v. Crump, 4 A. & E. 58. 3 Hanson v. Meyer, 6 East, 614; Wallace v. Breeds, 13 East, 522; Busk v. Davis, 2 M. & Sel. 397; Shepley . Davis, 5 Taunt. 617. 4 Busk v. Davis, 2 M. & Sel. 397. 5 Swanwick . Sothern, 9 A. & E. 895. |