Effect on right of inter

ference with the carrier by

the vendee.

pursuant to that contract, but in a new character, for the purpose of custody on his own account, and subject to some new order to be given to him (q). So, when the goods have arrived at the termination of the transitus prescribed by the vendor, and the purchaser has by indorsing bills of lading representing the goods to his agent enabled him to obtain possession of them, the right of stoppage in transitu is at an end, notwithstanding that the goods remain to be forwarded by another stage of transit to the purchaser, and that his agent, who has the possession of the goods, is the person by whom the goods are to be so forwarded ().

There are also other acts by which an actual or constructive possession may be taken by the vendee, although the goods have not been delivered at their ultimate destination. Thus, where the vendee, having notice that the goods had arrived at the carrier's warehouse, removed part of them, and left the residue after taking samples, requesting the carrier to allow them to remain in the warehouse for his convenience until he should send further directions, it was held that the transit was determined, as the vendee had by his own act prevented the delivery (s). Where goods were sent by the direction of the vendee to a place at which he did not reside, and when they reached it they were left in a warehouse belonging to third parties, who

(2) See the judgment in Whitehead V. Anderson, 9 M. & W. 534; Tucker v. Humphrey, 4 Bing. 516. A mere promise by the mate to the consignee that the goods shall be delivered to him as soon as they can be got at, does not determine the transitus. Coventry v. Gladstone, L. R., 6 Eq. 44. A delivery to a carrier selected by the vendor may be sufficient evidence of a delivery to support a count for goods sold and delivered; but it is not enough to satisfy the 17th section of the Statute of Frauds. Meredith v. Meigh, 2 E. & B. 364; Coombs v. The Bristol and Exeter Railway Company, 3 H. & N. 510. See also as to what is evidence of the acceptance of goods in a warehouse by a purchaser, Castle v. Sworder, 5 H. & N. 281; S. C., in Cam. Scacc., 6 ib. 828.

(r) In re Whitworth, Ex parte Gibbes, 1 Ch. D. 101. In that case, cotton was consigned to the vendor's agent

On

at Liverpool, to whom the bills of
lading were also sent by the vendor,
the bills of lading provided for the
delivery of the cotton at the port of
Liverpool to order or assigns.
the arrival of the cotton at Liverpool,
the purchaser sent to the vendor's
agent his acceptance for the price of
the cotton, and the bills of lading
were then sent to the purchaser, who
indorsed them, and sent them to the
manager of a railway company, who
obtained possession of the cotton, and
forwarded it by his railway to the
purchaser, who lived in Yorkshire;
it was held, that the transitus pre-
scribed by the vendor ended at Liver-
pool, and that after the cotton had
been delivered there to the railway
company as agents for the purchaser,
the vendor had no right to stop it in
transitu.

(s) Foster v. Frampton, 6 B. & C.

107.

were wholly unconnected with the carrier, and who had been previously in the habit of receiving goods for the vendee and of holding them at his risk until he fetched them away or gave further orders, without charging him any warehouse rent, it was held that the carrier's duty was complete, and that the goods having been delivered to an agent of the vendee the transit was at an end (t). It appears also to be clear, that if the goods are delivered at the warehouse of any wharfinger, packer, or other middleman, which the vendee uses as his own, or even if they are left at the warehouse of the vendor, which the vendee uses as his own by paying a warehouse rent, the transit may be, and ordinarily will be, determined (u). The mere fact, however, that rent has been charged by the vendor will not affect the question if the goods remain in his warehouse and under his control (x).

So, the exercise by the vendee of acts of dominion and owner- Of acts of ship over the goods, such as taking samples under circumstances ownership done by which show that it is done with the intention of taking posses- vendee. sion of the whole, will determine the transit (y). Thus, where goods bought for exportation were sent to the vendee's shipping agents to be forwarded abroad, and after they had been shipped by them were relanded and sent back to the vendors to be repacked, and the vendee became bankrupt whilst the goods were in their possession for this purpose, it was held, that the vendors had acquired no new right by this re-delivery, and that the transit had been determined by the delivery to the shipping agents, or, at all events, by the exercise of acts of ownership by the vendee (≈). Indeed, it may be stated as a general rule, that whenever it appears that the carrier, or other agent in whose possession the goods are, is not merely an agent for the passage

(t) Dodson v. Wentworth, 4 M. & Gr. 1081; see also Wentworth v. Outhwaite, 10 M. & W. 436; Dixon v. Baldwen, 5 East, 175.

(u) See the judgment in Scott v. Pettit, 3 B. & P. 469; and Leeds v. Wright, ib. 320; Richardson v. Goss, ib. 119; Hurry v. Mangles, 1 Camp. 452; Rowe v. Pickford, 8 Taunt. 83; Allen v. Gripper, 2 Cr. & J. 218.

(x) Miles v. Gorton, 2 Cr. & M. 504. (y) Foster v. Frampton, 6 B. & C. 107; Dixon v. Yates, 5 B. & Ad. 313; Jones v. Jones, 8 M. & W. 431.

M.P.

It

would seem that where the goods are
left in the carrier's possession, acts of
marking or of taking samples done by
the vendee with the intention of taking
a constructive possession, must, in
order to be effectual, be accompanied
with such circumstances as denote that
the carrier was intended to keep, and
assented to keep, the goods as an
agent for custody. See the judgment
in Whitehead v. Anderson, 9 M. & W.
535.

() Valpy v. Gibson, 4 C. B. 837.

E E

Of delivery on board

vendee's own ship.

of the goods, and does not hold them for the purposes of the transmission, and it is not intended necessarily that they should ever come otherwise into the possession of the vendee than by being in that of this agent, the transit is determined (a).

And, on the other hand, the right to stop may still exist although the vendee has taken possession of the goods, if it appear that he did so, not as owner, but in order to hold them for the vendor (b).

A delivery to the vendee on board his own ship ordinarily puts an end to the right to stop (c). And this may be so, although the ship be not expressly sent for them, but is used at the time as a general ship (d). Where the ship was chartered to the vendee for three years, and employed by him to convey the goods, not to himself, but abroad, on a speculation of his own, a delivery on board was held to be a delivery to himself (e). But the mere fact of the ship having been chartered by the vendee does not make her his own ship, so as to make a delivery on board that ship necessarily a delivery to him (ƒ). The goods must be delivered to be carried on behalf of the vendee, for if it appears from the fact of the bill of lading making them deliverable to the order of the vendor, or otherwise, that it is the intention of the vendor to preserve his title to them until some further act is done, this would, it seems, be a delivery to the master to carry for the vendor, even although the ship might be that of the vendee, and the right to stop would still exist. Even, however, where the bill of lading is so framed, it is a question for the jury, looking at all the facts of the case,

(a) Paley's P. & A. c. 4, s. 5; and see the judgment in Van Casteel v. Booker, 2 Ex. 691.

(b) James v. Griffin, 2 M. & W. 623. In Litt v. Cowley, 7 Taunt. 169, it was held that a delivery of the goods by the carrier to the vendee by mistake, after a notice from the vendor to stop them, did not deprive the vendor of his right of stoppage. But it may be doubted whether this decision is consistent with the general principles applicable to cases of stoppage in transitu, and whether the true view was not that, as between the vendor and the vendee, the transit was determined although the vendor might have a remedy against the carrier. See Coxe v. Harden, 4 East, 211; and Heinekey v. Earle, 8 E. & B. 410, and the cases

there cited. Bolton v. Lancashire and Yorkshire Railway Company, L. R., 1 C. P. 431.

(c) Ogle v. Atkinson, 5 Taunt. 759; Van Casteel v. Booker, 2 Ex. 699; Turner v. The Liverpool Docks Co., 6 Ex. 543. But see Mercantile Bank v. Gladstone, L. R., 3 Ex. 233, and see supra, p. 347, n. (p).

(d) Schotsmann v. Lancashire and Yorkshire Railway Company, L. R., 2 Ch. 332, reversing the decision of the M. R., L. R., 1 Eq. 349.

(e) Fowler v. M'Taggart, cited 1 East, 522; S. C., 3 East, 388.

(f) Bohtlingk v. Inglis, 3 East, 381. In the earlier cases it was holden otherwise. See Inglis v. Usherwood, 1 East, 513.

whether the delivery was really on behalf of the vendor or on that of the vendee (g). In a modern case, A., a planter residing in Jamaica, being indebted to B., a merchant residing in London, in a larger amount than the value of certain sugars, shipped them on board a ship belonging to B., which was used to carry supplies to Jamaica to the estates of A. and to bring back consignments from him and others, and was then employed for this purpose. The master signed and delivered to A. a bill of lading by which the goods were to be delivered to B. in London, he paying freight; but afterwards A. made an indorsement on the bill that the goods were only to be delivered to B. if he gave security for certain payments; and that otherwise they were to be delivered to A.'s agent. A. then indorsed and delivered the bill to a third person, to whom he was indebted in more than the value of the goods. It was held, that A. had a right to change the destination of the goods before the delivery of them, or of the bill of lading to B., and that the property in them had not passed to B. (h). And where goods were sold and shipped at Hull on board a vessel chartered by the buyer, "to be paid for in cash against bill of lading in the hands of the seller; agent in London," it was held that no property passed to the buyer until this condition was fulfilled, and that the price being unpaid, the seller was entitled to stop the delivery (i).

Where goods sold in London " free on board," to be paid for on delivery on board by bill or cash at a certain discount, were shipped on a vessel selected by the vendee, and the vendor elected to take a bill, and it appeared that by the custom of the port the expression "free on board" indicated that the vendee was considered as the shipper, although the vendor was to pay the expenses of shipment, it was held that the transit was determined by the delivery on board and receipt of the bill (4).

(g) Wait v. Baker, 2 Ex. 1; Van Casteel v. Booker, ib. 691; Turner v. Trustees of Liverpool Dock Company, 6 Ex. 543; Ellershaw v. Magniac, ib. 570; Jenkyns v. Brown, 14 Q. B. 496; Browne v. Hare, 3 H. & N. 484, and Brown v. North, 8 Ex. 1. See also Craven v. Ryder, 6 Taunt. 423; Ruck v. Hatfield, 5 B. & A. 632; Joyce v. Swann, 17 C. B., N. S. 84; Berndtson v. Strang, L. R., Eq. 481; 3 Ch. 588; Gumm v. Tyrie, 4 B. & S. 680; S. C. in Cam. Scac., 6 B. & S. 298; Fraser v. Witt, L. R., 7 Eq. 64.

(h) Mitchell v. Ede, 11 A. & E. 888. This was not a case of stoppage in transitu. See also as to the effect of the delivery of goods to a carrier. Meredith v. Meigh, 2 E. & B. 364; Coombs v. The Bristol and Exeter Railway Company, 3 H. & N. 510; Heinekey v. Earle, 8 E. & B. 410.

(i) Moakes v. Nicolson, 19 C. B., N. S. 290.

(k) Cowasjee v. Thompson, 5 Moo. P. C. C. 165. See also Browne v. Hare, 3 H. & N. 484; S. C. in Cam. Scac., 4 ib. 822; and Green v. Sichel, 7 C. B., N. S. 747.

Of sale of

goods in a warehouse.

There are also cases in which, although there is no transit, in the ordinary sense of the word, between the vendor and the vendee, yet questions of stoppage may arise. As where goods are sold whilst in the possession of a warehouseman, wharfinger, or other agent, who holds them for the vendor, and the transfer of the possession is merely symbolical.

The general rule is, that if a delivery order is given by the vendor to the vendee, and the agent who holds the goods assents to it by transferring them in his books, or otherwise, (or even, it would seem, if he does not assent,) and no acts remain to be done by the vendee which are essential to the completion of the contract,―such, for instance, as weighing, measuring, or separating the goods, so as to ascertain their quantity, value, or identity, -the right of stoppage is gone (7). The mere giving of a delivery order does not operate as a constructive delivery of the goods (m); and it is clear that the transfer of a delivery order has not the peculiar operation of the indorsement of a bill of lading, so as to pass the property in goods which are at sea, and not in the possession of the agent on whom the order is made (n).

It must also be recollected, that the question as between the vendee and the warehouseman or agent, in these cases, is not always the same as that between the vendee and the vendor; for if the agent acknowledges to the vendee that he holds the goods for him, he cannot afterwards set up the right of the vendor to stop them (o). Where, however, goods were sold at Liverpool, and at the time of the sale they were in the warehouse of the vendors, who gave to the vendee a delivery order acknowledging that they held the goods to his order, and evidence was given that by the usage of Liverpool the invariable mode of delivering goods sold while in warehouse was that the

(1) Withers v. Lys, Holt, 18; Zuinger v. Samuda, ib. 395; S. C., 7 Taunt. 265; Lucas v. Dorrien, ib. 278; Hammond v. Anderson, 1 N. R. 69; Hanson v. Meyer, 6 East, 614; Harman v. Anderson, 2 Camp. 343; Swanwick v. Sothern, 9 A. & E. 895; Wood v. Tassell, 6 Q. B. 234; Tanner v. Scovell, 14 M. & W. 28; Lackington v. Atherton, 7 M. & Gr. 360. If a delivery order is lodged with a warehouse-keeper, and he accepts it, he becomes the agent of the vendee who lodges it, and cannot contest his title or claim a lien on the goods. See the judgment of Lord Campbell, C. J., in Pearson v. Dawson, 1 E., B. & E. 456. See also as to what are sufficient acts of appropria

tion to vest the property of goods in a vendee, Langton v. Higgins, 4 H. & N. 402; and Castle v. Sworder, 5 H. & N. 281; S. C. in Cam. Scacc., 6 ib. 828.

(m) M'Ewan v. Smith, 2 H. L. C. 309.

(n) Akerman v. Humphrey, 1 C. & P. 53; recognized in Tucker v. Humphrey, 4 Bing. 516; and Jenkyns v. Usborne, 7 M. & Gr. 678. And see as to the force of delivery orders, Gunn v. Bolkow Vaughan and Company, L. R., 10 Ch. 732; The Imperial Bank v. The London and St. Catherine's Dock Company, 5 Ch. D. 195.

(0) Stonard v. Dunkin, 2 Camp. 344; Hawes v. Watson, 2 B. & C. 540.