The facts, which were not in dispute, were thus stated upon the bill:

The Plaintiff, who is a timber merchant of Gefle, in Sweden, through his Paris agent, Charles Von Kock, entered into a contract in February, 1863, for the sale to Messrs. Langton & Robinson, a London firm, of a quantity of timber. The contract, which was reduced into writing, and signed by Messrs. Langton & Robinson, after stating the quantities of timber and the prices, proceeded thus: "And the said prices, franco on bord, payable by buyer's acceptance of seller's drafts at six months from date of bills of lading. Shipment to London. Sellers to provide ships to a freight not exceeding 53s. in full, per Petersburger standard, with two or three guineas of gratification per 100 Petersb. stand. in case of need. If ships cannot be chartered within this limit the contract to be void."

It was subsequently agreed that, instead of Berndtson providing a ship for conveyance of the timber, Langton & Robinson should themselves charter a vessel to convey the timber from Gefle to London.

Messrs. Langton & Robinson accordingly chartered a ship, the Maastrom, which proceeded to Gefle, and on the 22nd of October, 1863, Berndtson shipped the timber on board of her. The price of the timber amounted to £1589. 12s. 6d., and an advance of £153. 8s. 2d. was made by Berndtson to the captain of the ship on account of the freight. These sums, together with three months' interest at 5 per cent. on the advance, amounted to £1744. 19s., and accordingly, in pursuance of the contract, Berndtson, on the 22nd of October, 1863, drew a bill of exchange of that date for this amount upon Langton & Robinson, payable six months after date. At the same time, in order, as the bill alleged, to preserve his control over such timber, Berndtson caused the bill of lading to be drawn in his name as shipper of the timber, and the same was thereby made deliverable to the order or assigns of Berndtson. [The bill of lading is here set out verbatim.]

Berndtson indorsed this bill of lading in blank, and caused it to be handed over to Langton & Robinson, in exchange for their acceptance of the bill of exchange for £1744. 19s. On receipt of the bill of lading Messrs. Langton & Robinson deposited it, together with a policy of insurance of the cargo of timber and other securities, with Messrs. Churchill & Sim, as a security for repayment of moneys due to them from Langton & Robinson.

The Maastrom, with the timber on board, sailed for London, but met with disasters on her voyage, got stranded, and on the 16th of November, 1863, was forced in distress to put into the port of Copenhagen, where she remained for some months. On the 16th of February, 1864, Langton & Co. suspended payment, and subsequently, on the 9th of September, 1864, they executed a deed of assignment

to the Defendants, Strang, Sieveking, and Pack, as trustees for the benefit of their creditors. While the Maastrom was still lying in the port of Copenhagen, Berndtson caused the captain to be served with a notice, dated the 24th of March, 1864, to stop the timber in transitu.

On the 26th of April, 1864, the Maastrom arrived in the Thames, whereupon a second notice of stoppage in transitu was served on board the ship and also on the shipbrokers, and on Messrs. Churchill & Sim.

The timber was taken possession of by Churchill & Sim as mortgagees, and a sum of £1276. 15s. 6d. was produced by the sale of it. The proceeds of the timber, with the moneys received under the policy, amounting in all to £1570., had been paid into Court by Messrs. Churchill & Sim, who had been satisfied out of their other securities.

The bill of exchange for £1744. 19s. was dishonoured at maturity.

The proceeds of the timber having been claimed by the trustees of the creditors' deed executed by Langton & Robinson, this bill was filed by Berndtson, charging that, by the exercise of his right of stopping the timber in transitu, he was entitled in equity to a valid and subsisting charge for the money due in respect of the price of the timber, and praying relief upon this footing.

A dividend of 5s. in the pound on the whole amount of his claim on the estate had been paid to the Plaintiff by the trustees of the creditors' deed without prejudice.

Sir W. PAGE WOOD, V. C. The question in this case is, whether the Plaintiff, is entitled to such a declaration as was made in Spalding v. Ruding, 6 Beav. 376, of his equitable right of stoppage in transitu over certain timber sold by him, and for the price of which bills of exchange were drawn, which were unpaid at the time the consignees became insolvent; the question being whether, under all the circumstances of the case, the consignees having simply mortgaged the bills of lading, which brings the case so far within Spalding v. Ruding, the plaintiff is entitled to the surplus assets as against the Defendants, who are the representatives, under a deed of composition, of the original consignees.

Spalding v. Ruding was, I think, the first case in this Court in which this right was asserted as against property which had so far passed into the hands of the consignee that he was enabled by mortgage of the bills of lading to pass the interest in the goods to the extent of that mortgage; and there the right of stoppage in transitu was upheld as against the surplus.

The case, which was originally decided by Lord Langdale, and affirmed by Lord Lyndhurst, 15 L. J. (Ch.) 374,14 was no doubt in

14 Lord LYNDHURST's judgment was as follows:

"The Plaintiffs, as the shippers of the goods in question, would have had a

some degree, an extension of what was supposed to be the right of the consignor. In some of the cases there were dicta which seemed to shew that by the indorsement of the bill of lading in such a manner as to admit of a dealing with it, and by actual dealing with, or actual negotiation of such bill of lading to a bona fide transferee, the vendor's right to stop in transitu would be defeated. That was the great ground of argument in Spalding v. Ruding, 6 Beav. 376, and I mention the case as shewing the extent to which the right has been upheld, and that it is a right entirely distinguished from the right of property in the goods.

The Plaintiff in this case sold to Messrs. Langton, who have become insolvent, certain timber under a contract of sale, specifying the price, "free on board, payable by buyer's acceptance of seller's drafts at six months from date of bills of lading. Shipment to London." It was also provided that the sellers were to provide ships. A good deal was said about these words "free on board," but as regards the original contract it would be plain enough that there was no intention that the goods should be at their destination when they were free on board, as not only was London the place of destination, but the seller was to find the vessel, and undertook that the goods should be delivered in London. Although the property in the goods might well pass when the bill of lading was handed over in exchange for the accepted bills, still that does not determine the question as to the right to stoppage in transitu, the distinction being well established upon all the authorities, and especially referred to in Van Casteel v. Booker, where during the argument, Mr. (now Baron) Martin, so far conceding against the interest of his client, says (2 Ex. 699): "The general rule is that if goods are shipped on board a chartered vessel the property vests in the consignee, subject to the right of stoppage in transitu; but if the goods are placed on

right at law to stop them in transitu as against Thomas, the vendee, by reason of his insolvency; but by the indorsement of the bills of lading to the Defendant (Ruding) for value, that right was taken away. The question then is, what right the Defendant had acquired against the vendors by their transactions with Thomas. The bill of lading, &c., were transferred to them by Thomas, to secure the repayment of the £1000, the sum advanced to Thomas by means of the Defendant's acceptance. This I consider to-be the true construction and effect of the memorandum or letter of the 9th of June, 1841. They had a clear right, therefore, to retain the goods, and to be paid out of the proceeds to the extent of those advances according to the terms of the agreement. They had both a legal and an equitable right to this extent. In this state of things the vendors attempt, by a notice to the captain, to stop the goods in transitu. This, I think, upon the evidence, was given in time, and though not good in law, by reason of the assignment of the bills of lading, would, I am of opinion, be valid in equity against both the vendee and the Defendant so as to vest in Plaintiffs a right to the surplus of the produce of the wheat, after discharging the sum for which it was pledged. The Defendant could not, under these circumstances, retain the surplus as against the vendors towards the liquidation of his general balance due to Thomas the vendee. If this view of the case be, as I think it is, correct, it was proper for the decision of a Court of equity, and the appeal must be dismissed with costs."

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board the purchaser's own ship, that is an absolute delivery—the same as if placed in his cart. The shipper may, however, protect himself by taking a bill of lading making the goods deliverable to his own order only; but in that case the property would pass as soon as he indorsed the bill of lading generally."

In the same way, Lord Chelmsford, in Schotsmans v. Lancashire and Yorkshire Railway Company, Law Rep. 2 Ch. 337, says in reference to the case of Mitchel v. Ede, 11 Ad. & E. 888: "It appears to me that this case was not decided upon the distinction between a general ship and one sent for the express purpose of receiving the sugar; for if it had been a question of stoppage in transitu upon a sale of the sugar to the Defendants, and it had been delivered into the Defendants' own vessel, sent out for the purpose, although the property in the goods would have passed, yet the effect of the delivery would have been restrained by the indorsement of the bill of lading, and the right to stop in transitu would have been preserved."

Much stress has been laid upon those words "free on board," as being an indication of the nature of the contract-that the transitus was at an end when the goods were on board the purchaser's own ship. But those words cannot have any such effect in a contract framed as this was, where the intention, as expressed by the contract, was, that there was to be no delivery on board the purchaser's own ship, as the vendor was to find a ship (although at the cost of the purchaser), and send the ship, with the cargo, to London, where the transitus would be at an end. That contract, however, was waived by parol, by the arrangement subsequently made, under which the vendor was no longer to find a ship, but was discharged from that part of his engagement. A ship chartered by the purchaser is sent out from London for the purpose of taking on board this cargo, subject, of course, to the payment of freight when the cargo should be delivered pursuant to the charter party. That being so, the vendor takes the additional precaution, notwithstanding the purchaser charters the ship, of taking the bill of lading in this form: "Shipped by him (the vendor), to be delivered at the port of London, unto order or to assigns." The bill of lading having been taken in this form the bills of exchange are drawn and accepted, and while the ship was on her voyage the bill of lading was indorsed in blanka circumstance very strongly relied upon by Mr. Druce-and delivered to the purchaser in exchange for the accepted bills of exchange, No doubt the property in the goods would pass, but that does not determine the question whether the transitus was at an end. With the single exception that the bills of lading are made out in the name of the vendor to his order, or assigns, and then by him indorsed in blank, the case does not really differ from Bohtlingk v. Inglis, 3 East, 381, nor from Spalding v. Ruding, 6 Beav. 376, where

the purchaser had the bill of lading handed over to him so as to vest the property in him.

Does, then, the shipping of goods, in the name of the vendor, and indorsing over the bill of lading, show an animus on the part of the vendor to part with his lien and abandon his right of stoppage in transitu? Now there are two criteria, as it appears to me, with respect to the stoppage in transitu, viz.: whether there is a transitus at all? and if so, where it is to end? If a man sends his own ship, and orders the goods to be delivered on board his own ship, and the contract is to deliver them free on board, then the ship is the place of delivery and the transitus is at end, just as much (as was said in Van Casteel v. Booker, 2 Ex. 691) as if the purchaser had sent his own cart, as distinguished from having the goods put into the cart of a carrier. Of course there is no further transitus after the goods are in the purchaser's own cart. There they are at home, in the hands of the purchaser, and there is an end of the whole delivery. The next thing to be looked to is, whether there is any intermediate person interposed between the vendor and the purchaser. Cases no doubt may arise, where the transitus may be at an end although some person may intervene between the period of actual delivery of the goods and the purchaser's acquisition of them. The purchaser, for instance, may require the goods to be placed on board a ship chartered by himself and about to sail on a roving voyage. In that case, when the goods are on board the ship everything is done; for the goods have been put in the place indicated by the purchaser, and there is an end of the transitus. But here, where the goods are to be delivered in London, the Plaintiff, for greater security, takes the bill of lading in his own name, and, being content to part with the property in the goods,' subject or not, as the case may be, to this right of stoppage in transitu, he hands over the bill of lading in exchange for the bill of exchange. In that ordinary case of chartering it appears to me that the captain or master is a person interposed between vendor and purchaser in such a way that the transitus is not at an end, and that the goods will not be parted with, and the consignee will not receive them into his possession, until the voyage is terminated and the freight paid according to the arrangement in the charter party,

Bohtlingk v. Inglis, 3 East, 381, which has been frequently cited, and never, as far as I can discover, with disapprobation, seems to have furnished the rule which was alluded to in argument in Van Casteel v. Booker, 2 Ex. 691, viz., that if the goods are delivered on board a chartered ship, the property vests in the consignee, subject to the right of stoppage in transitu. Mr. Justice Lawrence, in delivering the judgment of the Court, says (3 East, 395): "For the benefit of trade, a rule has been introduced into the common law, enabling the consignor, in case of the insolvency of the consignee, to stop the goods consigned before they come into the possession of the con