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tice Peyton, “though first introduced and founded in equity, has long been considered and acted upon as a legal remedy. The courts of law, admitting the justice of the right, have recognized it in constant practice and extended a liberal aid in

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ciple of equity adopted by the com- and stated that the several previous mon law to answer the purposes of decisions which had taken place to justice. The most eminent equity the same effect had given great satlawyers that I have had the oppor- isfaction to the merchants. Numertunity of conversing with in times ous cases have followed at law, showthat are gone by were unanimous in ing that the right of stoppage in tranrepudiating it as the offspring of a situ, under certain circumstances, is court of equity. The first case that now part of common law. occurred upon this subject affords “Nevertheless, owing perhaps to some authority for the opinion of Mr. the doubtful state of its parentage, Justice Buller and Lord Kenyon. It many unsatisfactory and inconsistent is the case of Wiseman v. Vanderput, attempts have been made to reduce 2 Vern. 203, in 1690. That was a bill it to some analogy with the principles filed by the assignees of a bankrupt which govern the law of contract, as against the vendor. The lord chan- it prevails in this country between cellor directed an action of trover to the vendor and vendee. It is to be be brought by the plaintiffs, upon observed, however, that the right of which they recovered a verdict. It stoppage in transitu is not peculiar is clear, therefore, that the rule had to the law of England. It existed, I not at that time been adopted at law. believe, in the commercial States of The lord chancellor, however, adopted Europe. The cases I have already it in equity, and, notwithstanding referred to show that it was practhe verdict at law for the plaintiffs, ticed in the Italian States. That it made a decree against them. The existed in Holland was proved in a next case is that of Snee v. Prescott, case tried by Lord Loughborough, 1 Atk. 245. Lord Hardwicke again and mentioned by him in his judgapplied the rule to a certain extent in ment in the case of Lickbarrow v. equity. But it is remarkable that he Mason, 1 H. Bl. 357. That it is the received evidence of what was the law of Russia was also proved in the custom of merchants on this point; cases of Inglis v. Usherwood, 1 East, and he expressly founds his decree 515, and of Bohtlingk v. Inglis, 3 East, upon the evidence of the custom of 381. It appears also, on reference to merchants, as well as upon the jus- the Chapitre de la Faillité, in the tice of the case. This decision oc- Code Napoleon, that the law of France curred about the year of 1742 or 1743. on this subject is in all points simiThe next case is that of Ex parte lar to our own. It is known that Wilkinson, in 1755, referred to in this celebrated code is chiefly a diD'Aquila v. Lambert, Ambler, 399, gest of the law of France as it exwhich took place in 1761. There the isted before the Revolution. Indeed lord chancellor again grounded his the right of stopping in transitu had, decree on the usage of merchants, before the composition or digest of

enabling an unpaid consignor or vendor to regain possession of property on its way to a vendee, who, from his circumstances, may not be in a condition to fulfill the terms of his contract. What was formerly a mere equitable claim is now, therefore, a legal possessory right. This right is nothing more than an extension of the lien which the vendor bas on all sales for the price until after the delivery, to the very point of the goods coming to the actual custody of the vendee or his agent."l

The right, however, still retains so much of its equitable nature that it may be enforced by bill in equity in a proper case. that code, acquired the name in the Cairns, L. J., said: “The case of the French law of ‘Revendication.' It plaintiff Schotsman, as I understand may therefore be presumed to be a it, may thus be stated. He says he part of the law of merchants which had sold goods, thereby transferring prevails generally on the continent. the property at law to Cunliffe; that The proof of which, from time to by a stoppage in transitu, alleged to time, combined with its manifest be effectual, he has revested in hipjustice and utility, has at length in- self the legal title to these goods, but troduced it into the common law of that he holds this title merely as se England, of which the law merchant curity for the price of the goods

, and properly understood has always been liable to be called on to surrender it reckoned to form a part."

on payment of the price; that he is 1 In Morris v. Shryock, 50 Miss. 590. therefore an incumbrancer only, or a So in Newhall v. Vargas, 13 Me 93, person having what Lord Kenyon, in 29 Am. Dec. 489, Weston, C. J., said: Hodgson v. Loy, 7 T. R. 440, described “The right of stoppage in transitu as a kind of equitable lien for the upon the insolvency of the purchaser price of the goods, which lien or inhas been well settled in the commer- cumbrance he is entitled to realize, cial world. It had its origin in the the account of what is due being at civil law; was first recognized in the same time taken; that the goods England in equity, and was subse- are in the meantime in the possession quently adopted by the courts of of one of the defendants, who is a common law. It is analogous to the stockholder or agent holding them common-law right of lien, being an merely for the person who is owner, equitable lien which enables the ven- subject to that lien, and that the dor, after he has parted with his pos- goods require the protection of an session, to resume it at any time be- injunction. I should be prepared to fore the vendee has acquired it, and to hold this to be a case entirely within retain the goods until the price has the province of this court, and de been paid or tendered.” See also pending on the ordinary principles Johnson v. Eveleth (1899), 93 Me. 306, which regulate in equity the rela45 Atl, R. 35.

tions of mortgagor and mortgaget, 2 Schotsmans v. Railway Co. (1867), whether of real or personal property, 2 Ch. App. Cas. 332. In this case although, for obvious reasons, cases


§ 1527. Exists only when title has passed. The right of stoppage in transitu, strictly so called, presupposes, and can be exercised only in the event, that the title to the goods has passed to the buyer. It is of course true, as will be more fully noticed further on, that the vendor who has forwarded goods under executory contract may stop or recall them in case of the buyer's insolvency or for other reason, but this is not strictly to be considered as an exercise of the right in question.”

§ 1528. Right favored in the law. The right of stoppage in transitu is one of great justice, resting, it is said, upon the substantial reason that one man's property shall not be taken to satisfy another man's debts. It is therefore often declared to be a right highly favored in law. As stated in one case, it is “regarded with so much favor that the rule governing it will not be subjected to restrictions less liberal than those of immemorial prescription.”

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2. Who May Stop the Goods.

§ 1529. Right may be exercised only by vendor or one in his position. The right of stoppage in transitu, being an extension of the seller's lien, and like that, as said by Bayley, J., a right “growing out of his original ownership,” it is well set

of this kind are more generally and may stop the goods which he has more conveniently brought into a sold to, and which have become the court of law.” Lord Chelmsford, L. property of, the purchaser, at any C., also said: “I entertain no doubt time before they have got into his of the plaintiff's claim being the possession, if he has become insolv. proper subject of a bill in equity.” ent." To same effect, per Willis, J., 1 See post, $ 1614, subd. III.

in Bolton v. Railway Co., L. R. 1 2 Thus in Fraser v. Witt, L. R. Com. Pl. 439. Eq. Cas. 64, Lord Romilly, M. R., 3 In D'Aquila v. Lambert, 1 Amb. said: “In these cases the goods are 399, Willis. Cas. 358. always the property of the purchaser; 4 Calahan v. Babcock, 21 Ohio St. if they were not, the question would 281, 8 Am. R. 63. See also Newhall not arise, because, of course, the v. Vargas, 13 Me. 93, 29 Am. Dec. vendor or any other person may al. 489: Inslee v. Lane, 57 N. H. 454; ways take possession of his own Cabeen v. Campbell, 30 Pa. St. 254; property; but the doctrine of stop- Jones on Liens, S 857. page in transitu is that a vendor

tled that it can be exercised only by the seller of the goods or by one so far standing in the attitude of a seller as to be entitled to substantially the same protection. It is a right existing in virtue of original ownership or its equivalent, and does not avail one who at most had no ownership but a mere lien.1

§ 1530, By factor who has bought goods for principal. On the ground that he stands in the attitude of a seller, a factor who has purchased goods for his principal may exercise the right. Thus, where a factor had purchased for his principal, since deceased, a cargo of molasses, the court in a leading case2 said: "The circumstance of his having purchased the molasses specially for this purpose can make no difference. It was paid for out of his own funds; and he stood in relation to the intestate in the character of a vendor, as much as if it had been supplied from his own warehouse. And it has been directly adjudged that a factor or agent who purchases goods for his principal, and makes himself liable to the original vendor, is so far considered in the light of a vendor as to be entitled to stop the goods. Every reason upon which this right is founded applies with equal force to a purchaser so circumstanced."

§ 1531. By person who pays price for vendee. So it is held that the right of stoppage may be exercised by a person who pays the price of the goods for the vendee and takes from the latter an assignment of the bill of lading as security for his advances. "To that extent," said the court, "he is a quasi vendor, entitled to use all lawful means in preventing his property or interests being sacrificed toward the payment of another person's debts."

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1 One who has a mere lien on goods having surrendered them to a carrier and parted with his possession cannot regain his possession or revive his lien by stoppage in transitu. Sweet v. Pym, 1 East, 4.

2 Mechem on Agency, § 687; Newhall v. Vargas (1836), 13 Me. 93, 29 Am. Dec. 489.

3 Citing Feise v. Wray, 3 East, 93. To same effect: Seymour v. Newton, 105 Mass. 272. See also D'Aquila v. Lambert, 1 Amb. 399; Tucker v. Humphrey, 4 Bing. 516; Hawkes v. Dunn, 1 Cromp. & Jer. 519; Oakford v. Drake, 2 Fost. & Fin. 493.

4 Gossler v. Schepeler (1875), 5 Daly (N. Y. Com. Pl.), 476, cited in note to

§ 1532. But not by vendor of seller. But where goods are ordered of B by C, and B, instead of supplying them himself, orders them shipped on his account by A, who ships them to C but charges them to B, it is held that A, upon B's insolvency, L cannot stop and hold the goods as against B. The right of stoppage, said the court, can only be exercised "upon the transit of the goods from a vendor to the purchaser from him." C bought the goods of B and not from A. A was C's vendor, and to A only was C liable.

§ 1533. Nor by unpaid agent of seller. So where goods are sold and paid for, but part are in the hands of seller's agents, who ship them in the seller's name to the buyer, and draw on the seller for a balance due by him to them, the agents may not, on the dishonor of their draft, stop the goods as against the purchaser. The agents may have had a lien as against their principal, but they surrendered that by delivering the goods to the carrier consigned to the buyer, and the agents stand in no such relation of vendor to him as will confer upon them the right of stoppage for non-payment by their principal.2

§ 1534. Principal who has consigned goods to factor may stop.― A principal, however, who has consigned goods to a factor may stop them in transit, on the insolvency of the latter, even though the factor may have made advances to the

Rucker v. Donovan, 19 Am. R. 87, where this question is fully discussed.

2 Mechem on Agency, § 687; Gwyn v. Richmond & Danville R. R. Co. (1881), 85 N. C. 429, 39 Am. R. 708. So an agent who has purchased goods for his principal, and consigned them to him, has no right of stoppage or of changing the destination or the consignee, as against his principal. Lake Shore, etc. Ry. Co. v. National Live Stock Bank (1899), 178 IH. 506, 53 N. E. R. 326.

1 Memphis, etc. R. Co. v. Freed (1882), 38 Ark. 614. Feise v. Wray, supra, was relied upon. So where goods are sold to one person, who, before delivery to him, resells them to another, and this is known to the original vendor, who consigns them to the second purchaser, the original vendor will have no right of stoppage in transitu. Eaton v. Cook, 32 Vt. 58.

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