"which I think they were not-to know that the plaintiffs'

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' goods, which they had sold to W. B. Palmer & Co., were among the fifteen packages of goods which came from England by the steamer, from the mere fact that the telegram mentioned earthenware from our English house,' still they were not told to stop all these fifteen packages, nor how many, if less than fifteen, were to be "stopped, and the defendants had no means of finding out definitely what they were to do. It is certain that they "could not be required at their own peril, upon such in"sufficient instructions to seize the the whole fifteen "packages, nor even any particular number of them; and "it became far more embarrassing to them when there were about 400 packages then in store for W. B. Palmer "& Co., many of which might, besides the fifteen, have come from England by way of New York."

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Stoppage in transitu not extended by wrongful refusal to deliver. Justifiable delay distinguished. The case of Anderson v. Fish, 16 O. R. 476, draws the distinction between the wrongful refusal of a carrier to deliver and a delay for the purpose of making inquiries as to the party entitled to the goods. A consignment of cigars was made to a vendee in Windsor, Ontario, who afterwards assigned for the benefit of creditors. The assignee demanded the goods, and offered to pay the freight, but the agent of the railway company informed him that where the goods were not claimed by the consignee, but by an assignee, he was obliged to telegraph for instructions. He did so, but before the instructions were received the unpaid vendor gave notice, stopping the goods. Falconbridge, J., held that the transitus had been ended by the refusal to deliver the goods, under the English case of Bird v. Brown, 4 Ex. 786, But the court, Armour, J., and Street, J., Falconbridge, J., dissenting, held that in this case, as there had not been, as in Bird v. Brown, an unconditional refusal to deliver the goods, that case did not apply. They considered the delay for inquiries justifiable, and held that the transitus was not at an end.

See Davis v. McWhirter, 40 U. C. Q. B. 598, where Morrison, J., expresses a difficulty in reconciling the decided language in Bird v. Brown with other authorities.

Bill of lading in force until superseded by some other document. The bill of lading in Clementson et al v. Grand Trunk Railway Co. (supra), stated that the goods were to be delivered to the Grand Trunk Railway Co., and by them forwarded per railway to the station nearest to Hamilton, and at the aforesaid station delivered to W. B. Palmer & Co., or their assigns. The contention was made that the endorsement of this bill of lading was of no effect to defeat the right of stoppage in transitu, because its purpose had been answered by the landing of the goods, and it no longer had operation as a symbol of property. But it was held, citing Meyerstein v. Barber, L. R. 2 C. P. 38, that the ocean and inland carriage were covered by the document, and that it remained in force until superseded by some other document, or by the performance of its conditions. 42 U. C. Q. B. 263.

Right of stoppage not defeated by attachment, nor by condition in shipping bill terminating carrier's liability when goods warehoused. In McLean v. Breithaupt, 12 Ont. A. R. 383, the shipping bill contained a provision that in all cases the delivery of the goods would be considered complete and the responsibilities of the carrier at an end when the goods were placed in the company's warehouse; that the warehousing of them would be at the owner's risk, who was then liable for the charges for storing them. While the goods remained in the company's warehouse at their destination, the purchaser requested the station agent that they should be kept for him by the company until he could find time to remove them, and asked him not to charge storage; but the agent made no promise. Hagarty, C.J.O., had some doubt about the matter, but concurred in the result, which was that the transitus had not ceased. Burton, J.A., stated the principle as laid down in ex parte Rosevear Clay Co., 11 Ch. D. 560, and pointed out that, under the cases a mere promise by the carrier to the purchaser, that he would deliver the goods to him as soon as they could be got out, would not be enough to change the possession. Here there was no promise, even putting aside the question of the agent's authority to make a contract on behalf of the railway company. The condition terminating the liability of the carrier was a contract with the vendor, not with the

purchaser, and nothing had occurred to effect a transfer of the actual possession. The attachment of the goods by a creditor of the purchaser did not affect the matter. The lien of the unpaid vendor, as decided in Smith v. Goss, 1 Camp. 382, was "the elder and preferable lien."

Does Trover lie for goods stopped in transitu. It was decided by the Court of Queen's Bench in Ontario that although the vendees of goods were insolvent, and notice. had been duly given to the carrier, stopping the goods in transitu, the vendors could not maintain trover, the right in the vendor to hold the goods from his vendee being a very different thing from the right of property and of possession, which is asserted in an action of trover. It was conceded that the carrier had done wrong in delivering the goods to the purchaser after the notice. This case, Childs et al. v. Northern Railway of Canada, 25 U. C. R. 165, was decided in 1866, but in 1816 it had been decided, in Litt et al. v. Cowley et al., 7 Taunt., 169, that trover would lie against a carrier who delivered the goods after a stoppage in transitu, and it is stated in the text, ante at p. 415, that trover will lie against the assignee of the bankrupt purchaser who gets possession of the goods.

Goods in Railway Company's bonded warehouse. Notice to Company Sufficient. In Ascher V. The Grand Trunk Railway, 36 U. C. R. 609, goods which came from Montreal in bond were deposited in the customs warehouse at the Grand Trunk Railway Station at Toronto. The consignees became insolvent, and the consignors gave notice of stoppage in transitu to the railway company, after which the agent of the company gave an order for delivery on payment of the charges to another person, who made the entry and received them from the customs. It was held that the notice to the company was sufficient, though it was advisable in such cases to give notice also to the customs officer, and that an action would lie against the company for such delivery.

Goods claimed by assignee of bankrupt purchaser stopped in transitu, after claim but before delivery. In Anderson v. Fish et al., 16 O.R. 476, the vendors had shipped goods over the Grand Trunk Railway, and on the arrival of the goods the agent of the railway company sent an

advice notice to the vendee, who refused to take it. After this the vendee assigned to the plaintiff for the benefit of creditors, and the assignee produced the assignment to the railway company's agent, demanding the goods, and offering to pay the freight. The agent did not refuse to deliver the goods to him, but informed him that in such cases his duty was to telegraph the company's solicitor for instructions. He did so, but before he received an answer, the defendants, as unpaid vendors, notified the agent not to deliver the goods to the vendee or his assignee, claiming the right to stop them in transitu. Armour, C.J., said that the demand, or more properly the claim, made by the assignee upon the railway agent for the goods did not prevent the exercise of the right of stoppage in transitu, for there was no absolute refusal to deliver the goods, but only a refusal to deliver them until such time as he could, in obedience to the rule of the railway company, obtain the instructions of the railway company's solicitor as to the course to be pursued by him with respect to the goods. This rule of the company was a perfectly reasonable and proper one, and the obedience of the railway agent to it was lawful, and did not have the effect of making the detention of the goods until he could communicate with the solicitor and receive his instructions, wrongful, nor did it have the effect of altering the character of the possession which the railway company has as carriers of the said goods. Falconbridge, J., dissented, on the ground that the logical result of the judgment was to place it in the power of the carrier or his local agent practically to decide to whom the goods should belong by prolonging the period of transitus after they had been demanded, with every formality, including the tender of expenses, etc. The judgment of the majority was, however, affirmed on appeal. 17 O. A. R. 28.

An earlier case of the Morgan Envelope Co. v. Boustead. 7 O. R., 697, was somewhat similar. While the goods, which had been consigned to the purchasers from Boston, were held by the railway company the purchasers assigned to the defendant for the benefit of creditors. The defendant. immediately after the assignment, passed and entered the goods and paid duty thereon, and the railway company

removed the goods from the customs warehouse to their freight sheds, where they remained, and delivery was refused to the defendant for non-production by him of a bill of lading, and the freight was not paid or tendered. The plaintiffs, as unpaid vendors, having stopped the goods in transitu, it was held that the transitus was not at an end, for that the railway company continued to hold the goods as carriers and not as agents for the defendant.

In Davis v. McWhirter, 40 U. C. Q. B. 598, it was held that the transitus was at an end when the purchaser's assignee demanded the goods from the railway company, tendering the freight, although the freight agent of the company refused to deliver the goods; but the ruling did not enable the purchaser to recover the goods, because there was evidence that convinced the court of his fraudulent intent not to pay for them, which entitled the vendor to rescind the contract and claim the goods.

Goods in custom-house store; end of transitus. The vendors in New York consigned goods to Fahey at Kingston, where they duly arrived. Being liable for duties, they were taken in charge by the custom-house officers and placed in the custom-house store, no entry being made nor duties paid. Fahey paid duties on part of the goods and took them away, but the residue remained until after he failed to pay his note for the goods. The vendors' agent then notified the warehouse-keeper not to deliver the goods. claiming the right of stoppage in transitu. It was held that as to the part of the goods so remaining in the warehouse, the stoppage in transitu was effectual. Burr et al. v. Wilson et al., 13 U. C. R. 478.

The case of Howell et al. v. Alport, 12 U. C. C. P. 375, is similar to the foregoing, except that the goods were placed in bonded warehouse on the purchaser's own premises, to which there were two different locks and keys, one in control of the purchaser and the other of the custom house. While the goods were so placed the purchaser became insolvent, and notice of stoppage in transitu was given to the custom house officer. It was held that the transitus was not ended, as the goods were not, under the facts stated, in the possession of the purchaser. Lewis et al. v. Mason, 36 U. C. R. 590, is to the same effect, except that the bond