§ 1543. It seems, however, indispensable that the insolvency shall have happened at the time the goods are stopped, or at least at the time they arrive at their destination, and that it is not sufficient if it was then pending but did not happen until later. On this point, the language of Lord Stowell, in an analogous case,1 has been approved: "If the person to whom the goods are consigned is not insolvent; if, from misinformation or from excess of caution, the vendor has exercised this privilege prematurely, he has assumed a right that did not belong to him, and the consignee will be entitled to the delivery of the goods, with an indemnification for the expenses that may have been incurred. . It is not necessary that the person should be actually insolvent at the time. If the insolv ency happens before the arrival, it would be sufficient, I conceive, to justify what has been done, and to entitle the shipper to the benefit of his own provisional caution."

§ 1544.. It is evident, nevertheless, that in those cases in which the question of insolvency is to be determined from the circumstances, the point at which that condition is reached must be very difficult to define; and that, in many cases, subsequent developments must be material as aiding to determine the character of the previous events.

4. Under What Conditions Stoppage May be Effected.

§ 1545. Goods can be stopped only while in transit. The right of stoppage in transitu, as its name implies, is one to be exercised only while the goods are on their way to be delivered to the buyer. They must clearly, therefore, be in transit, and in the hands of some third person some middleman between the seller and the buyer-for the purpose of trans

Blum v. Marks, supra; Buckley v.
Furniss, 15 Wend. (N. Y.) 137; 2 Redf.
Railways, 160: O'Brien v. Norris, su-
pra; Parsons, Merc. Law, 61].

1 The Constantia, 3 Eng. Adm. 6 Rob. 321.

-

2 Wilmshurst v. Bowker, 2 Man. & Gr. 792, 7 id. 882, Willis. Cas. 218; Benedict v. Schaettle, 12 Ohio St. 515, Adam's Cases, 51.

portation; for, if their transit has not begun, the seller has no occasion to stop the goods, and if it has ended he has no opportunity, if the goods are still in the seller's hands he has no need to stop them, and if they have reached the hands of the buyer, the seller's right to control them has ceased. As stated by Lord Chelmsford: "It is of the essence of the doctrine of stoppage in transitu that during the transitus the goods should be in the custody of some third person intermediate between the seller who has parted with and the buyer who has not yet acquired actual possession."

§ 1546. It is not material, in the language of Denio, J., whether this middleman "be a carrier, a warehousekeeper, a wharfinger, packer or other depositary, or an agent for the purpose of forwarding, nor by which of the parties to the sale he was employed. He may be the agent of the purchaser, designated, paid and employed by him; yet if the purpose of his employment is to expedite the property towards its destination, or to aid those engaged in forwarding it, the seller's right to stay the final delivery continues. But, however clearly the general principle may be stated, the circumstances of commercial dealings are so various that cases are apt to arise in which its application is a matter of extreme difficulty."

§ 1547. Existence of a transit Goods transported on ship or other vehicle owned or chartered by purchaser.— As a consequence of this doctrine that a middleman must intervene, arises the question, somewhat controverted, of the effect of a delivery of the goods upon a ship or other vehicle owned or chartered by the buyer for transportation to him.

There can be no doubt, as a general proposition, that if the buyer sends his own cart or servant for the goods, and thus obtains them, there is no middleman here intervening, there is no transitus, and hence no right of stoppage, unless by contract or special circumstances the seller has reserved a claim upon the goods.3

1 In Schotsmans v. Lancashire Ry. Co., L. R. 2 Ch. App. 332.

2 Harris v. Pratt, 17 N. Y. 249.

3" Of course there is no further

§ 1548. Shipment on vessel owned by buyer.-Where the goods are shipped on board a vessel owned by the vendee, some American cases' make a distinction based upon the destination of the goods, holding that "if they are to be transported not to his residence or to be received by him, but to other markets, there is a termination of the transit and the right of stoppage by the vendor ceases; " but "if they are put on board the consignee's ship to be transported to him, the transit con

tinues for the purpose of stoppage until they come to his actual possession."

Other American cases, on the other hand, following the English cases in this respect, repudiate this distinction, and hold that where the seller voluntarily delivers the goods upon the buyer's own ship, without doing anything to reserve control over them, there is a termination of the transit, and therefore of the right of stoppage, regardless of their destination.'

§ 1549. Shipment on vessel chartered by buyer.Where the ship is not owned absolutely by the purchaser, but is chartered by him, the question seems to turn upon the nature of the chartering: if it be general, as for a definite term, so

1 Schotsmans v. Lancashire, etc. Ry. Co., L. R. 2 Ch. 332; Merchants' Banking Co. v. Phoenix Bessemer Steel Co., L. R. 5 Ch. Div. 205; Berndtson v. Strang, L. R. 4 Eq. 481, Willis. Cas. 394; Turner v. Trustees of Liverpool Docks, 6 Exch. 543, Willis. Cas. 228; Ogle v. Atkinson, 5 Taunt. 759, Willis. Cas. 215; Bolin v. Huffnagle, 1 Rawle (Pa.), 1; Sturtevant v. Orser, 24 N. Y. 538, 82 Am. Dec. 321.

tination of the goods, and final termination of the voyage, as we have been to discover the kind of delivery which terminated the transitus. It is best to lay down a plain intelligible rule, easy in its application, and to leave the modification of the rule to the contract of the parties. The distinction for which Chief Justice Parsons contends does not seem to have been cordially received by the courts of Massachusetts, nor is it supported by the current of cases.

In Bolin v. Huffnagle, supra, the court, by Rogers, J., said: "I am aware that Chief Justice Parsons.Why the final destination of the [in the Massachusetts cases cited in the preceding note] put the case upon a different principle, but, for the reasons I have stated, I cannot concur with him in the view he has taken. He seems to put the right of stoppage in transitu on the destination of the goods or final termination of the voyage, a distinction which, with due deference, will be found unsatisfactory in its application and productive of litigation. Once establish the doctrine that the right depends on such subtle distinctions, and we shall be as much plagued with cases to settle what is meant by the des

goods should make the difference is not very intelligible, and has not been explained. In this case, according to the authority of Stubbs v. Lund (supra), if the goods had been shipped for New Orleans the transitus would have been at an end, but inasmuch as they were conveyed to Philadelphia the transitus continues. The propriety of the rule is certainly not very obvious, nor should mercantile cases depend on such subtle grounds." Two judges dissented.

2 Mr. Benjamin (6th Am. ed., § 843) states the rule as follows: "Whether a vessel chartered by the buyer is to

that during that term, whether it be for a single voyage or more, the buyer can be regarded as the owner of the ship, and the master as his servant or agent, the rule above referred to operates, and the right of stoppage does not exist; but if the buyer has simply employed the ship as carrier to transport his goods, the right of stoppage continues until they reach their destination; and it is not material in this respect that their destination had not been communicated to the seller, or that the seller's duties as seller terminated on their delivery to the ship.1

§ 1550. Same subject-Reserving control.-Notwithstanding a delivery upon the buyer's own ship, which would ordinarily amount to a termination of the transit as between buyer and seller, there may, as was intimated in the last section, be such a reservation of the power of control over them as to preserve the seller's right of stoppage.

The right to stop may, of course, be expressly stipulated for, or the circumstances may suffice to show that it had been re

be considered his own ship depends on the nature of the charter-party. If the charterer is, in the language of the law merchant, owner for the voyage, that is, if the ship has been demised to him, and he has employed the captain, so that the captain is his servant, then a delivery on board of such a chartered ship would be a delivery to the buyer; but if the owner of the vessel has his own captain and men on board, so that the captain is the servant of the owner, and the effect of the charter is merely to secure to the charterer the exclusive use and employment of the vessel, then a delivery by the vendor of goods on board is not a delivery to the buyer, but to an agent for carriage. It is a pure question of intention in every case, to be determined by the terms of the charter-party. Blackburn on Sale, 242; Fowler v.

McTaggart, cited 7 T. R. 442, and 1 East, 522; Inglis v. Usherwood, 1 East, 515; Bohtlingk v. Inglis, 3 East, 381. See the cases collected in Maule & Pollock on Shipping (ed. 1881 by Pollock & Bruce), vol. I, p. 418, and a further discussion of the subject in Sandeman v. Scurr, L. R. 2 Q. B. 86, and the Omoa Coal & Iron Co. v. Huntley, 2 C. P. Div. 464. As to what amounts to a demise of a ship, see Meiklereid v. West, 1 Q. B. Div. 428."

1 Ex parte Rosevear China Clay Co., 11 Ch. Div. 560. In this case James, L. J., said: "The principle is this: that when the vendor knows that he is delivering the goods to some one as carrier, who is receiving them in that character, he delivers them with the implied right which has been established by the law, of stopping them so long as they remain in the possession of the carrier as carrier."