Stoppage the consignor and consignee, it was considered, that he in transitu. would have known nothing which would have made it un

Right of stoppage not to

de

feat the rights of

third

sons;

per

fair, either in the consignee to assign, or in himself to accept, the bill of lading. Any collusion, however, with the consignee to defeat the just rights of the consignor — as, if the indorsee knew that the bill of exchange would not be paid, or that the consignee was INSOLVENT—would have made a difference in the case. But to hold, Lord Ellenborough says, that no bill of lading was assignable, unless the assignee was perfectly assured that the goods were paid for in money, would tend to overturn the general practice and course of dealing of the commercial world (1) on this subject. And this reasoning seems consistent with the principle of the new enactment, namely, that the transfer of a bill of lading shall convey the property in the goods, unless the person, to whom it is transferred, has notice that the person transferring it to him is not the actual and boná fide owner of the goods.

The right of stoppage in transitu, as it is an equitable right, can only be exercised where it does not interfere with the just rights of third persons. (2) Therefore, where a vendor of tallow (lying at a wharf) gave a written order to the wharfingers to weigh, deliver, transfer, and rehouse the same; and the purchaser sold the tallow again to a second purchaser; upon which, the wharfingers wrote to the second purchaser, acknowledging that they had transferred the and goods tallow to his account though the tallow had in fact not sold to a second been weighed since the order of the original vendor, — it purchaser. was held, that whatever question there might have been as

delivery order

partly acted on,

between buyer and seller, in consequence of such omission as to the weighing, yet that the wharfingers (who were sued in trover by the second purchaser) having acknowledged that they held the tallow on his account, could not afterwards dispute his title, in obedience to any order of the original vendor

(1) Cuming v. Brown, 9 East,

506.

(2) Hawes v. Watson, 2 B.& C. 546. per Best J.

-

in transitu.

sale with

original

to stop the delivery of it to such second purchaser, not- Stoppage withstanding the original vendor had not been paid by the first purchaser. (1) So, where the vendee marked a quan- Where tity of timber lying at the vendor's wharf, and a small the second part was forwarded by the vendor to one place, and part to the assent another and the vendee afterwards, and before the time of the of payment arrived, sold the whole to the plaintiff, who vendor. notified such sale to the vendor, and was answered that "it was very well” — and then, in the presence of the vendor, the plaintiff marked all the timber lying at his wharf, and afterwards marked that which had been forwarded to the other two stages; it was held, that the vendor (after such assent to the transfer) could not retain or stop any of the timber as in transitu, upon the subsequent insolvency of the original vendee, to whom payment had been made by the plaintiff — whatever question there might have been as between the original vendor and vendee. (2) But a mere resale of goods by a vendee, Where who has never been in possession of the bill of lading, vendee reaccompanied even with payment to him by the second out ever vendee, will not destroy the vendor's right of stoppage being pos in transitu (3) — notwithstanding the second vendee pro- the bill of cures from the master of the ship (but without the lading. consent of the vendor) a bill of lading to be made out to himself.

-

sells with

sessed of

now de

Before the late acts of parliament (4) above referred to Right of (which have so materially altered the law of merchant and consignor factor, as well as that of consignor and consignee) it was feated by determined, that if goods were sent to a consignee as factor, factor he could not divest the consignor's right to stop them in transitu, by indorsing, or delivering over, the bill of lading as a pledge (5); for it was then considered, that an au

pledging

goods.

in transitu.

Stoppage thority to sell the goods gave him no right to pawn them. But now, by the 6 G. 4. c. 94. s. 5., any person may accept any goods, or bill of lading, or other document for delivery of goods, in deposit or pledge of any factor or agent, notwithstanding he has notice that the person pledging is a factor, or agent, but so as to acquire no further right, than was possessed by the factor, or agent, at the time of the deposit or pledge. (1)

of con

signor to indorse, equivalent to actual

indorsement of

The indorsement of a bill of lading is not, strictly, an actual transfer in law of the property in the goods therein mentioned, though it is presumptive evidence of such a transfer — and though the possession of the bill of lading gives now, in fact, the right to dispose of the goods. But the object, and legal effect, of the indorsement may be ascertained by other Where en- evidence. (2) And there may be also other circumstances, gagement which may be equivalent to such an indorsement, as against the consignor, or any other person acquainted with those circumstances. As, where merchants in Ireland consigned goods to London to be sold by their factors there, and sent them a bill of lading not indorsed, but saying that the omission was a mistake, and that they would send an indorsement-upon which the factors sold the goods-and it afterwards happening, that they were unable to pay bills drawn upon them by the consignors, the plaintiff paid the bills for the honour of the drawers, and, with knowledge of all these transactions, applied to the consignors for an indorsement of the bill of lading, which they sent him; it was held, under these circumstances, that the plaintiff had no right to take the goods out of the possession of the vendees of the factors, who were authorized to transfer the property in the goods, and who had actually done so. (3) But, if thing equi- there be no circumstances equivalent to an indorsement of valent to the bill of lading by the consignor, and the delivery of the goods is specified in the bill to be, to the order of the con

bill of lading.

But

where no

indorse

ment,

(1) And see post, “Lien."

(2) Abbott on Shipping, 400. Core v. Harden, 4 East, 211.

(3) Dick v. Lumsden, Peake, 189.

in transitu.

cannot

signor or his assigns, and the bill of lading is transmitted Stoppage unindorsed; the holder cannot then, by an attempt to transfer the property of the goods to a third person, di- holder vest the right of the consignor to stop them in transitu.(1) transfer And, indeed, in such a case the third person would, by bill of the terms of the bill of lading itself, have (in the language lading. of the new act (2)) sufficient " notice that the person intrusted with the bill of lading was not the actual and boná fide owner of the goods."

vendee has transferred

his factor.

It has been decided, that an unpaid vendor of goods When may stop them before they come to the hands of the vendee's factor, though the factor has the bill of lading the bill of indorsed to him by the vendee in his hands, and is under lading to acceptances to the vendee on a general account between them. And in such a case, where the factor became bankrupt, and the messenger under his commission, upon the arrival of the ship with the goods, went on board and seized them after the agent of the vendor had given notice to the captain to deliver the cargo to him, it was held, that the vendor might maintain trover against the assignees for the goods. (3) The grounds, upon which the judgment of the Court in this case was founded, were, that the bill of lading was indorsed and transmitted by the vendees to the factor, for the express purpose of enabling the factor to sell the goods — without any reference to a loan or balance due to him from the vendee- and without any specific pledge of the cargo, or any particular appropriation of the bill of lading to any specific draft or balance, (which it was admitted, would have varied the rights of the parties) — and that an indorsement of a bill of lading made by a vendee to a party, merely as factor, carried his rights no further, than if the bill of lading had been unindorsed. It was also agreed by the Court, that where a FACTOR is incapable, by his bankruptcy, of taking possession of a cargo pre

(1) Nix v. Olive, Abbott, 402. (2) 6 G. 4. c. 94. s. 2.

(3) Patten v. Thompson, 5 M. & S. 350.

W

..

in transitu.

Stoppage viously consigned to him, his assignees, being incapable of performing the duties entrusted to the bankrupt, in respect of a personal confidence reposed in him, have no right to interpose, and prevent an unpaid vendor from stopping goods in transitu. (1)

It is apprehended, however, that this case, if the factor had not become a bankrupt, (when the question, of the transfer of the personal confidence from the factor to his assignees, could not have been raised) would now meet with a different decision under the 6 G. 4. c. 94. s. 2.; inasmuch as the vendee, being in possession of the bill of lading, must under that act have been deemed to be the true owner of the goods, so as to give validity to any contract made with any person to dispose of them on his account; and though the indorsement of the bill of lading might have been made to such person merely as factor, yet as a bill of lading is now declared to be the symbol of ownership in the goods, so far as to render valid any contract for the disposal of them, the legal possession of the bill of lading, even as factor, would, unless his principal interfered, have drawn with it the right to possess the goods, and to hold them as against all persons whatever, in virtue of his lien for the general balance due to him from his principal.

Goods de

a bank

SECTION VIII.

Of Goods sent, but not accepted; and of Goods ordered, but not delivered.

The assignment does not pass goods delivered by the livered by bankrupt before his bankruptcy, on a precedent consideration, though they may not be actually accepted by the other party until after the bankruptcy.

rupt.

Goods consigned

And if goods are consigned to a bankrupt upon credit,

(1) 5 M. & S. 350.