principal on the credit of the consignment, or have a joint interest with the consignor."

§ 1535. Surety for the buyer may not stop the goods.—A mere surety for the buyer, on the other hand, cannot, it was held in an English case,3 exercise the right of stoppage, but a surety who has paid the price may now, by virtue of the Mercantile Law Amendment Act, stop the goods on the insolvency of the buyer.

§ 1536. Seller of executory interest may exercise the right. So one who has an executory interest by the purchase of goods not yet identified or separated, and who sells that interest to another, may exercise the right of stoppage against the latter if he is found to be insolvent. Thus in the leading cases upon this subject the court said: "It was objected that it is only the owner of the goods who can exercise the right; and that, in this case, the property had not vested in the plaintiff at the time of the stoppage, but only an interest in and right to receive a certain portion of the cargo to be afterwards ascer tained and appropriated to the parties intended; but we see no sound distinction, with reference to the right of stoppage in transitu, between the sale of goods, the property of which is in the vendor, and the sale of an interest which he has in a contract for the delivery of goods to him."

§ 1537. Stoppage by agent for his principal - Ratifica tion. The right of stopping the goods in transit may be exercised not only by the seller in person, but it may also be exercised by his agent. An express authority to the agent to stop the goods will of course suffice; but an express authority is not indispensable. The authority may be implied from words or conduct, or may be found to be embraced within the scope

1 Benjamin on Sale (6th Am. ed.), §833; Kinloch v. Craig, 3 T. R. 119. 2 Benjamin, ubi supra; Newsome v. Thornton, 6 East, 17.

3 Siffken v. Wray, 6 East, 371.

4 Benjamin on Sale (6th Am. ed. § 831. See Imperial Bank v. Dock Co., 5 Ch. Div. 195.

Jenkyns v. Usborne, 7 Mann. & Gr. 678, 8 Scott, N. R. 505.

of a broader general authority to act in the interest of the seller.1 And even though the authority had not been conferred in any way at the time the stoppage was effected, authority to that effect subsequently conferred will amount to a ratification of the act, at least where ratification is effected before the goods have come into the possession of the buyer, or before it is otherwise too late for the seller in person to exercise the right.3

3. Against Whom Stoppage May be Effected.

§ 1538. Against buyer or one standing in his attitude.The right of stoppage being, as has been seen, one exercisable only by a seller or one standing in his position, it is also true,

1 Mechem's Hutchinson on Carriers, § 411. In Reynolds v. Boston & Maine R. Co., 43 N. H. 580, it is said: "It is contended that the attempt to stop the goods was made without authority. Though goods cannot be stopped in transit by a stranger, absolutely without authority, and the act of such a mere stranger cannot be made valid by a ratification on the part of the vendor or his agents, subsequently to the time when the goods reach the hands of the vendee (Bird v. Brown, 4 Exch. 786), yet we regard it as settled that any agent who has power to act for the consignor, either generally or for the purposes of the consignment in question, may stop goods in transitu without any authority specially directed to that end, or empowering him to adopt that particular measure." See also Bell v. Moss, 5 Whart. (Pa.) 189; Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Whitehead v. Anderson, 9 M. & W. 518; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. 2 See Mechem on Agency, § 142. Ratification before the goods have reached the possession of the buyer

is sufficient. Jones on Liens, § 876;
Durgy Cement Co. v. O'Brien, 123
Mass. 12, distinguishing Bird V.
Brown, 4 Exch. 786.

A letter authorizing the stoppage, mailed before but not received until after the stoppage, is a sufficient ratification of the act. Hutchings v. Nunes, 1 Moore's P. C. (N. S.) 243; Whitehead v. Anderson, 9 M. & W. 518.

3 See Mechem on Agency, § 168. In Bird v. Brown, 4 Exch. 786, it is held that ratification comes too late if it is effected at a time when the seller in person could not then stop the goods, e. g., when they have come into the possession of the buyer.

Bird v. Brown was also distinguished in Bolton Partners v. Lambert, 41 Ch. Div. 295, Mechem's Cases on Agency, 222, for this reason: "There it was held that the ratification could not operate to divest the ownership which had previously vested in the purchaser by the delivery of the goods before the ratification of the alleged stoppage in transitu."

and for like reasons, that the right avails only against the buyer or one standing in his attitude. The case presupposes that the goods have been sold and the title passed. The seller does not assert this right against his own goods. He may, of course, stop in transit goods of his own transported under a variety of circumstances, as, for example, where he intercepts his goods on their way to be appropriated under an executory contract; but the right of stoppage in transit, in the strict legal meaning of that phrase as now under consideration, is something radically dif ferent. So it is radically different from the attempt of a defrauded seller to rescind the sale for the buyer's fraud or misrepresentation, as such an act is designed to put an end to the relation of buyer and seller, while stoppage in transitu is based upon the continuance of that relation.

§ 1539. Only against an insolvent buyer. The right of stoppage in transit can be exercised only against an insolvent or bankrupt buyer. The term "insolvency," however, is not here used in any technical or restricted sense, but means a general inability to pay one's debts. Actual insolvency of the buyer, as distinguished from apparent insolvency, is not essential. "It is sufficient," said the court in Ohio, if, before the stoppage in transitu, he was either in fact insolvent, or had, by his conduct in business, afforded the ordinary apparent eridences of insolvency."

§ 1540.

Evidence of insolvency.-What shall be deemed sufficient evidence of insolvency cannot be determined by any hard-and-fast rule. The circumstances of each case must be considered. "Strict proof of insolvency," said the court in

1 Mechem's Hutchinson on Carriers, 413; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 S. R. 175, 54 Am. St. R. 114; Smith v. Barker, 102 Ala. 679, 15 S. R. 340; Loeb v. Peters, 63 Ala. 243, 35 Am. R. 17; More v. Lott, 13 Nev. 376.

"We know of no authority," said the court in Bayonne Knife Co. v.

Umbenhauer, supra, “which holds
that stoppage in transitu may be as
serted against a solvent debtor."
2 Durgy Cement, etc. Co. v. O'Brien,
123 Mass. 12.

3 Diem v. Koblitz, 49 Ohio St. 41, 34 Am. St. R. 531, 29 N. E. R. 1124, Willis Cas. 426.

Wisconsin,1 "is not required." "It is not necessary to prove that he is not able to pay a cent, or any particular sum, but it is sufficient to show that he is unable to pay his debts." "Of this inability, the failure to pay one just and admitted debt would possibly be sufficient evidence." "It is not necessary

1 Jeffris v. Fitchburg R. R. Co., 93 Wis. 250, 67 N. W. R. 424, 57 Am. St. R. 919, 33 L. R. A. 351. 2Secomb v. Nutt, 14 B. Mon. (Ky.) etc. R. Co., 6 Lea (Tenn.), 616. See

that the buyer should have been declared a bankrupt or insolv ent by a judicial tribunal, or shown to be so by legal proceedings, or that he should have made an assignment of his prop erty, or the like,- insolvency, in a case like this, fairly means that the party shall be shown to have been unable to meet the debt due the seller, at the time of the exercise of the right, when that debt should fall due; and if this fact satisfactorily appears, no matter how proven, the law requires no more."

§ 1541. -Absconding, attachment, etc., not enough.— Insolvency must nevertheless be shown, and not merely that the debtor has absconded, or has been sued, or that his goods have been attached. A fortiori is it not enough that for some other reason the seller desires that the sale shall be defeated. As said by Lord Romilly, "The insolvency of the purchaser is essential; the vendor cannot stop the goods because he has changed his mind.”4

§ 1542.

Insolvent when.- It has been held in Connec ticut that it is essential to the exercise of this right that the insolvency shall have occurred after the sale and before the attempted stoppage; but this view has not elsewhere prevailed, and it is abundantly settled that it is sufficient if the insolv ency is first discovered after the sale, though it may have existed before that time. Of course if the seller knew of the insolvency at the time of the sale, he cannot afterwards stop the goods for this reason."

1 Bloomingdale v. Railroad Co., 6 § 413; Kingman v. Denison, 84 Mich. Lea (Tenn.), 616. 608, 48 N. W. R. 26, 11 L. R. A. 347.

2 Smith v. Barker, 102 Ala. 679, 15 22 Am. St. R. 711 (citing O'Brien v. S. R. 340.

3 Gustine v. Phillips, 38 Mich. 674. A fortiori is it no evidence of the insolvency of the firm of which defendant was a member.

4 In Fraser v. Witt, L. R. 7 Eq. Cas. 64, citing Wilmshurst v. Bowker, 7 Man. & Gr. 882.

5 Rogers v. Thomas, 20 Conn. 53.
6 Mechem's Hutchinson on Carriers.

Norris, 16 Md. 122, 77 Am. Dec. 4: Reynolds v. Boston, etc. R. Ca., 43 N. H. 580; Blum v. Marks, 21 La. Anı 268, 99 Am. Dec. 725; Benedict v Schaettle, 12 Ohio St. 515, Adam's Cas. 51); Walsh v. Blakely, 6 Mont 194; Farrell v. Richmond, etc. R. Co., 102 N. C. 390.

7 Fenkhausen v. Fellows. 20 Nev. 312, 21 Pac. R. 886, 4 L. R. A. 732 [citing