which it was offered.' The other judges concurring, judgment was given for the plaintiffs *.

710. (4.) If, after goods have been stopt in transitu in the hands of a carrier by a notice to him from the vendor not to deliver them, they are, nevertheless, delivered by mistake, the vendor's right is not thereby injured, and he will be entitled, not only to bring an action against the carrier, but also to recover the goods back from the vendee.

So, in an action of trover for goods, it appeared that the plaintiff, pursuant to an order had, on 9th December, delivered the goods to a carrier to be brought to London, addressed to Neal and Warner. Afterwards seeing cause to stop the goods in transitu, they gave notice to the carrier to deliver them, not to Neal and Warner, but to an agent of their own; but the carrier, by an accidental mistake of a clerk, delivered them to Neal and Warner, who unpacked them and sold a part, and afterwards failed. The action was brought against the defendants, their assignees. A verdict was found for the plaintiffs, and afterwards confirmed by the Court. Gibbs, C. J. after stating the facts as above, said, 'It was formerly held that the only way of stoppage in transitu, was by actual cor'poral touch of the goods. It has since been held, that after notice 'to a carrier not to deliver, he is liable for the goods in trover against ' himself if he does deliver them. It is clear, therefore, that after this notice, Pickfords, (the carriers) delivering them to Neale and • Warner, are liable in trover for the goods, and I thought it mon'strous to say, that their delivery of them by mistake, under such a liability, would confirm the property in the bankrupt. The law of stoppage in transitu says that the property, which was be'fore in the bankrupts, may be revested in the seller by notice to the carrier: the plaintiff's give that notice to the carrier, and there by revest the property. Before such notice to the carrier to stop the goods, the purchaser may bring trover for them; after such notice the seller may bring trover. A vendor could not main'tain trover against a carrier unless he could revest the property in himself, and if he can revest it, then the subsequent delivery by mistake will not perfect the sale,' Litt v. Cowley, 7 Taunt. 169.

Oppenheim v. Russel, 3 B. and P. 42. In like manner, the vendor's right is not divested by the goods being attached while in transitu, by process out of the court of the Mayor of London, at the suit of a creditor of the vendee, Smith v. Goss, 1 Campb. 282.

So far with regard to the circumstances by which, while the goods are still on their journey, the vendor's right of stoppage may or may not be barred.

6

711. IV. With regard to the mode in which the right of the vendor to stop in transitu may be made effectual, it was the opinion of the court, in Wiseman v. Vandeput, 2 Vern. 203, being the earliest case extant upon this subject, that the vendor was entitled to get back his goods by any means:' and Lord Hardwicke, in Snee v. Prescott, 1 Atk. 245. was of opinion, that he might lawfully obtain possession of them by any means short of absolute violence. The same doctrine has been delivered in a series of later cases; Per Lord Kenyon in Solomons v. Nissen, 2 T. R. 674.; Barnes v. Freeland, 6 T. R. 80.; Smith v. Staples, 1 Esp. 578.; and by Grose J. in Feize v. Wray, 3 East, 93.

712. In applying this general principle in practice, the following points have been determined.

713. (1.) It is settled that the mere bankruptcy of the vendee does not of itself operate as a countermand of his previous order, without some act of stoppage on the part of the vendor. In the case of Scott v. Petitt, 3 B. and P. 469., a doubt was suggested upon this point from the bench. But it was abandoned by the counsel for the vendor upon examining the cases, and Lord Alvanley, by whom the doubt had been suggested afterwards, said at the trial, I could not help forming a wish that the question, how far the bankruptcy of Barclay had operated as a countermand of his pre⚫vious orders to Messrs Waller, should be considered by the court. 'But, on looking into the cases, I find that question to be com'pletely closed in Westminster Hall, and that we therefore are 'bound to hold, that though a bankrupt has altogether ceased to 'be a trader, yet that his warehouse continues open for the purpose of receiving goods, and that the assignees have a right to 'take possession of every thing that may come into their hands without paying a single farthing, even though the consignors of "the goods are not entitled to come in under the commission,' The other judges concurred in this opinion, but with strong expressions of regret that such a rule should have been established, which they conceived to be productive of very great hardship.

714. (2.) Although the mere bankruptcy of the vendee without paying the price, does not of itself cause the property of the goods to revert to the vendor; yet, on the other hand, it is not necessary for this purpose that he should actually repossess himself of the goods.

At one time, indeed, it was held, and Lord Hardwicke was of this opinion, that in order to stop the goods in transitu, there must be an actual possession of them obtained by the consignor before they come to the hands of the consignee, Vide Northey v. Field, 1 Esp. 613. That rule has been since relaxed, and it is now held that an actual possession by the vendor is not necessary to establish his right. A considerable time, however, seems to have elapsed before the proper mode of proceeding was settled in practice; and there are situations in which no absolute`or fixed rule has yet been established by authority. The following cases will shew the course of practice on the subject.

715. In the case of Northey v. Field, 1 Esp. 613, where a quantity of wine, ordered from abroad by the vendee, had on its arrival been lodged in the king's cellar in security of the duties, it was held by Lord Kenyon, that a claim made by the agent of the vendor for the wines while they were in the cellar, and before they were sold for payment of the duties, was a sufficient stoppage in transitu to secure the rights of the vendor, and that an actual possession by him was not necessary, Vide Snee v. Prescott, 1 Atk. 245, Holst v. Pownall, 1 Esp. 240; Bohtlingk v. Inglis, 3 East, 394.

716. Suppose, however, that after notice given by the vendor or his agent to a carrier or wharfinger not to deliver the goods to the vendee, the carrier does actually deliver them, is he liable in damages to the vendor ?

It was at one time doubted whether the carrier was liable in these circumstances. Thus, in Mills v. Ball, where goods being ordered from London by a trader at North Tawton, and being sent by sea to Exeter, and there delivered to a wharfinger, on account of the vendee to be forwarded, on the vendee's failure, the vendor gave notice to the wharfinger not to deliver the goods, and the wharfinger promised not to deliver them till he could do so with safety, notwithstanding which, he afterwards delivered them to the assignees of the vendee.-In this situation it was stated by the Court as doubtful, whether an action might be brought by the person entitled to stop the goods, against a carrier who, after notice to retain the goods, delivers them to the original consignee. But as in this case the wharfinger had expressly undertaken to hold the goods, he was held to be liable in damages to the vendor on this ground, and no decision was given on the general point, Mills v. Ball, 2 B. and P. 457.

In the subsequent case, however, of Oppenheim v. Russel, 3 B. and P. 42, it was held that the vendor, who is entitled to stop in transitu goods in the hands of a carrier, may support an action against the carrier, who, after a tender of his charges, and notice not to deliver the goods, refuses to give them up to the vendor; and in a recent case, where, after notice given to the carrier not to deliver the goods, they were delivered by mistake, the rule with regard to the liability of such persons, after notice given not to deliver, was stated by Chief Justice Gibbs to be as follows: It was formerly held, that the only way of stoppage in transitu was by actual corporal touch of the goods. It has since been held, that, after notice to a carrier not to deliver, he is liable for the goods in trover against himself if he does deliver them. The law of stoppage in transitu says, that the property, which was before in the bankrupts, may be re-vested in the seller by notice to the carrier. Before such notice to the carrier to stop the goods, the purchaser may bring trover for them; after such notice, the seller may bring trover,' Litt. v. Cowley, 7 Taunt. 169.

717. Such are the rules applicable to a land-earrier, wharfinger, or other person into whose hands goods may come in the course of their transit from the vendor to the vendee. A shipmaster, who is a carrier by sea, is in some respects in a different situation, and is liable to be placed in circumstances in which it is more difficult for him to determine what is the proper course for him to pursue. One situation is, where goods have been ordered from abroad by a merchant in England, and where the consignor hears of the failure of the consignee after the goods have been shipped, but before the vessel has left the foreign port. In this situation, the laws of certain foreign countries contain regulations for enabling the consignor to provide for his own security, by either getting back the goods, or compelling the master to alter the form of the bill of lading; and to these regulations effect has been given in the law of England".

Where again, the ship has arrived at her port of destination, various questions of difficulty may occur, when a change has taken

* Inglis v. Usherwood, 1 East, 515. See a case stated by Lord Loughborough, in Mason v. Lickbarrow, 1 H. B. 364, where a merchant in Amsterdam having sold goods to a merchant in London, and hearing of the insolvency of the vendee before the ship sailed, he summoned the master before the Court there, who compelled him to sign new bills of lading to the order of the seller.

place in the situation of the parties, from the insolvency of the vendee, or otherwise; and it would be a great hardship to compel the master to exercise his own judgment in regard to conflicting claims, and to deliver the goods at his own peril. No precise rules appear yet to have been settled by authority, with regard to the duty of the master in some situations of this kind. What has actually been decided, together with some observations and directions as to the proper mode of proceeding in other cases which have not yet come under the consideration of courts of law, will be found in the following authorities, Caldwell v. Ball, 1 T. R. 205 ; Fearon v. Bowers, 1 H. B. 364, note; Abbott, 403-405.

718. (8.) The stoppage may be effected either by the vendor himself, or by his agent; and this agent may be either one specially authorized for the particular purpose, or one acting under a general power of attorney, provided the act of the latter be afterwards confirmed by his principal, Holst v. Pownall, 1 Esp. 240; Mills v. Ball, 2 B. and P. 457; Lickbarrow v. Mason, 2 T. R. 63; Feize v. Wray, 3 East, 93. But an effectual stoppage cannot be made for behoof of the vendor, by a third party not at the time his agent, either general or special, even although the act be afterwards confirmed by the vendor, Siffkin v. Wray, 6 East, 371. ́·

719. V. It was stated in a former section, (supra, No. 655—665.) that attempts had been made to discover a general principle, which might furnish a test or criterion for ascertaining in what circumstances goods may or may not be stopped as in transitu. The consideration of this matter was reserved until a statement had been given of the rules which have been established by decisions regarding the exercise of the right of stoppage. Now that the cases have been fully detailed, this inquiry may be entered upon with more advantage,

It has already been mentioned, that the distinction between ac tual and constructive delivery has been supposed to be such a test or criterion as is required for regulating the exercise of the right of stoppage; and that it has been laid down by some, as a general rule, that goods may in all cases be stopt as in transitu, where they have merely been constructively delivered, and that the right of stoppage is put an end to by actual delivery only.

In one of the earlier cases, Mr. Justice Buller adopted this view. In speaking of the previous cases, he said that they all turn on the question, whether or not there had been an actual delivery to the bankrupt. It is of the utmost importance to ad