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came after the demand and tender made by the assignees on the 11th of May.'

Thirdly. Of all the various circumstances which may qualify the right of stoppage in transitu, there are two, the co-existence of which is in the nature of a condition precedent to the exercise of it, the vendor must be unpaid, and the vendee bankrupt or insolvent.

This right of the vendor, therefore, does not exist, where payment is properly made to his agent, although the latter never pay over the money, or he has elected to take what is equivalent to payment, a bill of exchange, e.g., when he might have had money, or the goods are sent by him to cover his own acceptances, or to cover a loan or a balance due from him on a running account.”

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It is not defeated however by the circumstance of part being paid, or of the sale being on credit,' or a bill of exchange having been given for the amount, although the credit is not expired nor the bill at maturity.

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But if the vendee is not bankrupt or insolvent, although he may have failed to perform his contract, performance in that

1 Bird v. Brown, 4 Exch. 786, see ante, p. 514.

contract of sale taken in connection
with the custom of the port of London,
that where goods are sold "free on
board," the buyer is the shipper, the
seller paying the expense. In virtue
of this contract and custom, the pos-
session of the shipmaster becomes there-
fore that of the shipper or buyer, and
consequently the detainer of the mate's
receipt acknowledging the seller as
shipper, could not change the legal
rights of the parties.

2 Bunney v. Poyntz, 4 B. & Ad. 568.
3 Strong v. Hart, 6 B. & C. 160;
Lichfield Union v. Greene, 1 H. & N.
884; Robinson v. Hawksford,
Q. B.
52; Cowasjee v. Thompson, 5 Moore,
P. C. 165. There is a discrepancy in
the report of this latter case before the
Privy Council on the point for which it
is here cited. In the judgment, it is
said that the sellers having the option
of taking a bill at six months, or money
less 24 per cent. discount, elected to
take a bill; but in the statement of
facts at the beginning of the report, it
is said distinctly, that it was the option
and election of the buyers to give such
a bill, agreeing in that respect with
what I believe to be much the more
usual stipulation in commercial con-
tracts. If this point is removed from
the case, then it seems to rest on the v. Thompson, 5 M. & Sel. 350.

4 Vertue v. Jewell, 4 Camp. 31, re-
garded by Lord Ellenborough in the
nature of a pledge; see Patten v.
Thompson, 5 M. & S. 350.

Haille v. Smith, 1 B. & P. 563;
Vertue v. Jewell, supra.

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Hodgson v. Loy, 7 T. R. 440.

7 Inglis v. Usherwood, 1 East, 515; Bohtlingk v. Inglis, 3 East, 381.

8 Feize v. Wray, 3 East, 93; Patten

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Subsequent Vendee and right of stoppage defeated.

case not being a condition precedent, there is no right to stop in transitu. It is not necessary however for this purpose, either that he should have been adjudicated a bankrupt, or taken the benefit of the Insolvent Act, if it can be shown that he was at the time in embarrassed circumstances.'

A second, or any subsequent vendee, though solvent, is in no better situation than the bankrupt; unless the latter has been enabled by the vendor's own act to transfer a title indefeasible by stoppage in transitu. This he may do by means of the bill of lading. That instrument, when it makes the goods deliverable to the vendor or assigns, or to order or assigns, reserves the control of the shipment to the vendor, and is not transferable, until it is indorsed. In the vendee's hands, under a blank indorsement, or a special indorsement of the vendee's name, or without indorsement if his name is in the body of it to receive the goods, the bill of lading leaves the right of stoppage still in the vendor; but transferred by the vendee to a bona fide purchaser, it confers an indefeasible title on the latter, and defeats the vendor's right."

If a qualified indorsement be made on the instrument by the shipper, a purchaser from the vendee takes it subject to the qualification.' If a blank or special indorsement only appear on it, but delivery to the vendee is made upon condition, the latter could not have conferred a greater right on a bona fide purchaser without notice than he himself possessed; and the statute, which transfers the contract to him only "to whom the property in the goods therein mentioned shall pass," and is not to prejudice or affect the right of stoppage in transitu,

1 Wilmshurst v. Bowker, 7 M. & Gr. 882; Walley v. Montgomery, 3 East, 585.

2 James v. Griffin, 2 M. & W. 622; Edwards v. Brewer, 2 id. 375; Mills v. Ball, 2 B. & P. 457.

3 Small v. Moates, 9 Bing. 574; Dixon v. Yates, 5 B. & Ad. 313; Jenkyns v. Usborne, 7 M. & Gr. 678.

Coxe v. Harden, 4 East, 211; Brandt v. Bowlby, 2 B. & Ad. 932; and see Mitchell v. Ede, 11 A. & E. 888; ante, as to the effect of a bill of lading, c. viii. p. 343.

5 Per Tindal, C. J., Jenkyns . Usborne, 7 M. & Gr. 678, 697; see Wait v. Baker, 2 Exch. 1.

6 Lickbarrow v. Mason, 2 T. R. 63; 1 H. Bl. 357; 5 T. R. 367, 683; 6 East, 20 note; Cuming v. Brown, 9 East, 506; Gurney v. Behrend, 3 E. & B. 622; Key v. Cotesworth, 7 Exch. 595.

7 Barrow v. Coles, 3 Camp. 92; Mitchell v. Ede, 11 A. & E. 888.

8 Key v. Cotesworth, 7 Exch. 595; Gurney v. Behrend, 3 E. & B. 622.

appears in this respect to have made no change. A fortiori, if the transferee take the bill of lading malâ fide, for the purpose "of contravening the actual terms of sale on the part of the consignor, or his reasonable expectations arising out of them, or his rights connected therewith," he stands in no better situation than the consignee."

The vendor is not ousted of this right by a pledge of the Right not defeated, by what bill of lading by the vendee,' or by the carrier's lien for his circumstances. general balance against the vendee, or by the goods being

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⚫ taken under a foreign attachment,' or by the vendee's transfer of a shipping note or a delivery order to a third person for value.'

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VALID STOPPAGE
IS MADE.

Fourthly. Stoppage in transitu, though it primarily implies IN WHAT WAY corporal apprehension, may be effectually exercised by notice. "It was formerly held," says Chief Justice Gibbs, "that the only way of stoppage in transitu, was by actual corporal touch of the goods. It has since been held, that after notice to a carrier not to deliver, he is liable for the goods in trover against himself if he does deliver them."

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We have already seen that this notice to be good must be Notice, by whom. with the authority of the vendor; and if this be signified by

way of ratification, but do not reach the bailee of the goods

till the transitus is ended, the notice is a nullity."

A notice, however, which is good in this respect, may still Notice, to whom. be rendered a nullity in law by the impossibility of its operating

in fact. A shipowner seems bound to use all reasonable

1 18 & 19 Vict. c. 111, § 1, 2, see ante, c. 8, p. 341, 343.

* Per Lord Ellenborough, Cuming v. Brown, 9 East, 506, 514; and see Coxe v. Harden, 4 East, 211; Walley v. Montgomery, 3 East, 585.

3 Re Westzinthus, 5 B. & Ad. 817. 4 Oppenheim v. Russell, 1 N. R. 42. The vendor is entitled to possession on tendering in such a case the amount due for the carriage of the goods.

5 Smith v. Goss, 1 Camp. 282.

6 Akerman v. Humphery, 1 C. & P. 53.

7 Jenkyns v. Usborne, 7 M. & Gr. 678, 699; Mc Ewan v. Smith, 2 Ho.

of Lds. Cases, 309.

Per Parke, B., Whitehead v. Anderson, 9 M. & W. 518, 533, 534; per Tindal, C. J., Jackson v. Nichol, 5 Bing. N. C. 508, 518; per Lawrence, J., Bohtlingk v. Inglis, 3 East, 381, 394; per Lord Mansfield, Stokes v. La Riviere, cited in Ellis v. Hunt, 3 T. R. 464, 466. 9 Per Gibb, C. J., Litt v. Cowley, 7 Taunt. 169-170; see, c.g., the opinion of Lord Mansfield, cited in Ellis v. Hunt, 466, 467; and of Lord Kenyon, recanted by himself in Wright e. Lawes, 4 Esp. 82, 83.

10 Ante, p. 518; Bird v. Brown, 4 Exch. 786.

diligence in giving effect to such notice;1 but there is no stoppage in law until the notice reach the person capable of controlling the actual possession of the goods. Where, therefore, a letter of the 18th of July was sent to the shipowner at Montrose, to stop delivery of a cargo then on its way from Quebec to Fleetwood, but on its arrival there upon the 8th of August, the bankrupt having anticipated all others by his demand of possession, it became necessary to determine whether this demand had ended the transitus, the notice to the shipowner not operating in law till it reached the master."

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"To make a notice effective," the Court said in that case, 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 as it was in the case of Litt v. Cowley,' 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; and to hold that a notice to a principal at a distance is sufficient to revest the property in the unpaid vendor, and render the principal liable in trover for a subsequent delivery by his servants to the vendee, when it was impossible, from the distance and want of means of communication, to prevent that delivery, would be the height of injustice. The only duty that can be imposed on the absent principal is to use reasonable diligence to prevent the delivery."

994

In Litt v. Cowley,' certain goods delivered for that purpose to Pickford & Co., at Manchester, were dispatched by canal for London; a notice was afterwards sent on the vendee's bankruptcy by the vendor to Pickford and Co. of Manchester, to deliver the goods not to the vendee but another; they communicated by letter with the Messrs. Pickford of London accordingly, but solely owing to mistake in a clerk, the goods were delivered to the bankrupt; the stoppage, however, had already taken effect in law, and the vendor recovered the value of the goods from the assignees of the bankrupt.

1 Per Parke, B., in Whitehead v.

Anderson, 9 M. & W. 518, 534.

2 Whitehead v. Anderson, 9 M. & W. 518.

3 Litt v. Cowley, 7 Taunt. 169.

4 Per Parke, Whitehead v. Anderson,

9 M. & W. 518, 533, 534.

Litt v. Cowley, 7 Taunt. 169.

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SALVAGE, in its simple character, is the service which What it is. volunteer adventurers spontaneously render to the owners in the recovery of property from loss or damage at sea, under the responsibility of making restitution, and with a lien for their reward.' In respect of the means by which the recovery is made, it is distinguished, with a difference of remuneration, into Civil and Military Salvage. Our attention is to be engaged for the present with the consideration of Civil Salvage only.

This subject is singularly indefinite, and perhaps always CIVIL Salvage.

1 Per Sir Ch. Robinson, The Thetis, 3 Hagg. Ad. 14, 48; per Lord Stowell,

The Neptune, Clark, 1 Hagg. Ad. 227,
236.

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