equally effectual as actual delivery, to put an end to the state of transitus. Instead of its being a general rule, therefore, that goods are liable to stoppage after a delivery merely constructive, the general rule seems to be exactly the reverse, and it is merely an exception to the general rule, that goods are liable to stoppage after a constructive delivery to a carrier.

729. In concluding this section, the result of the doctrines which have been illustrated, may be stated in the following general propositions:

730. In the first place, by the law of England, the property of the thing sold is transferred to the vendee on the completion of the contract, without delivery-not the absolute property, because that cannot exist without possession, but the general property.

731. In the second place, the payment of the price is a condition precedent of the sale, but the contract may notwithstanding be perfected without payment of the price, when credit is given, or the goods are delivered unconditionally, or where earnest is paid.

732. In the third place, although the contract may have been perfected by the payment of earnest, so as to pass the property, the vendor has still a lien over the goods, in security of the price, in virtue of which he is entitled to retain them until it is paid; but this right is understood to be waived by the vendor when he has given credit, in which case, if the vendee continues solvent, the goods must be delivered immediately, and the vendor cannot sue for the price until the term of credit has expired.

733. In the fourth place, If, after the completion of the contract, and before delivery of the goods, and while they are still in the vendor's possession, the vendee became insolvent without having paid the price, the vendor's lien is available to him in security of the price, although credit may have been given, and the term of credit has not yet expired.

734. In the fifth place, Even after possession has been ceded by the vendor to a middle man who is employed to convey the goods to the vendee, the vendor is entitled, when the price is not paid, to stop them in transitu on the vendee becoming insolvent before they are delivered to him actually or constructively.

735. In the sixth place, The vendor's lien endures only while he remains in possession of the goods, and he is divested of it by a delivery either actual or constructive to the vendee.

736. Lastly, The right of stoppage in transitu endures only while the goods remain in the possession of the carrier by land or water, or in a place of deposit connected with the transmission of them to the vendee, and is put an end to by delivery of the goods to him either actually or constructively *.

BODE

OF THE RIGHTS ENJOYED BY THE VENDOR BY THE LAW OF SCOTLAND, UPON THE INSOLVENCY OF THE VENDEE, THE PRICE NOT BEING PAID.

737. In applying the doctrine of stoppage in transitu to the law of Scotland, the first point to be ascertained is, whether there is any thing arising from the different nature of the Scotch and English contract of sale which should occasion a difference in the laws of the two countries touching stoppage in transitu. It has already been observed that, although in the case of Allan, Stewart and Company, the right of stoppage in transitu was held to be conformable to the law of Scotland, and was applied by the House of Lords accordingly; and although since that time the decisions of the English courts have been received in our law as direct authorities in questions of this kind, yet it has never been held that either these judgments themselves, or the principles on which they proceeded, were binding upon our courts, when they can be clearly traced to the peculiar doctrines of the law of England, or to doctrines which are inconsistent with the established principles of the law of Scotland. Further, even where the practical result of the application of different principles is the same, it is still of importance that the nature and extent of the theoretical differences which exist in the laws of the two countries should be understood and kept in view, in order that we may know, on the one hand, in what cases the English decisions may be safely followed as guides, notwithstanding such theoretical differences; and, on the

In reference to this discussion concerning the efficacy of constructive delivery to transfer the property, it may be noticed that Pothier states a similar question as having given rise to a controversy among the French lawyers, and he decides that the feigned or constructive delivery is in every respect equivalent to real delivery, with a certain qualification which is not applicable to the English or Scotch law. Poth. Contr. de Vente, No. 321.

other hand, in what cases these decisions rest upon principles which are inconsistent with the law of Scotland. In order to prevent any misapprehension upon this subject, I shall endeavour, before stating the cases which have been decided in Scotland upon questions arising out of the right of stoppage in transitu, to ascertain what differences there are in principle, applicable to the present subject, between the Scotch and the English contract of sale.

per

738. In the first place, By the law of England, it will be remembered, the property of the thing sold passes to the vendee, on the completion of the contract, without delivery. By the law of Scotland, the effect of the completion of the contract is merely to give the vendee a personal right to the thing sold, he being made, on the one hand, a creditor for the delivery of it, and the vendor, on the other hand, being made a creditor for the price. In consequence of this difference, it will at once occur, that there can be no such thing in the law of Scotland as a lien in the son of the vendor over the thing sold, in security of the price, similar to that which exists in the law of England, as we have seen in the preceding sections. A party cannot have a lien over his own property, neither can a lien exist without possession of the thing to which it attaches. The vendor, therefore, in Scotland, cannot have a lien over the thing sold, because, while it continues in his possession, he is still the undivested proprietor, although under a personal obligation to deliver it to the vendee; and after he is divested of the property by delivery, the thing is no longer in a situation to be the subject of a lien.

739. It is not to be supposed from this, however, that, in the event of the vendee becoming insolvent without paying the price, while the thing sold is still in the possession of the vendor, the latter has no security similar to that arising from the vendor's lien in England. He has a security equally complete, although depending upon a different principle. It is this-while by the completion of the contract, the vendor is laid under an obligation to deliver the thing sold; the vendee, on the other hand, becomes bound to pay the price. These obligations are the counterparts of 'each other, and neither party can demand implement from the other, unless he is ready to fulfil his own obligation. When the sale has not been made expressly upon credit, the vendor may demand payment of the price before delivering the thing sold, and even when credit has been given, if the vendee become insol

vent before the thing is delivered, the vendor is entitled to delay the delivery until the price is paid or secured; Supra, No. 307-309. The right of retention, therefore, which the vendor enjoys in Scotland, on the vendee becoming insolvent while the goods are undelivered, affords the very same security as the right of lien possessed by the vendor in the same situation in England. Infra, No. 749.

740. It was stated in the preceding section, in treating of the vendor's lien, that it was put an end to by delivery of the goods to the vendee, either actually or constructively.

A rule analogous to this, exists in the law of Scotland, in regard to the right of the vendor, now under consideration. Although by the law of Scotland, the property of the thing sold is not transferred to the vendee without delivery, it is not necessary, in all cases, that the delivery, in order to transfer the property, should be actual, so as to give real possession of the thing to the vendee, or his servants, or special agents. On the contrary, various acts of constructive delivery have been long recognized in the law of Scotland, and have been held in various cases as sufficient to transfer property, and to bar the right of stoppage.

741. The constructive deliveries which have been admitted in England as equivalent to actual delivery, have been mentioned and explained at length in the preceding section *.

742. That a fictitious or constructive delivery is admitted in the law of Scotland, in certain cases, as equivalent to actual delivery, has also been shewn before, in treating of the subject of delivery, Supra, No. 545. and examples of the application of this rule will be given in the subsequent part of this section.

743. It is not to be understood, however, that because the law of Scotland gives effect to constructive delivery generally, it is therefore to be held that all those kinds of constructive delivery which have been admitted in England as sufficient to vest the indefeasible property of the thing sold in the vendee are also to be admitted in Scotland. On the contrary, it will be seen from the

It is proper to observe that in this section, the term constructive delivery is used in the same exclusive sense, as I have endeavoured to shew in the preceding section it is used in England, viz. as denoting every species of traditio ficta, which, although not conferring real possession upon the vendee in his own person, or that of his servants or special agents, is yet held constructione juris, equivalent to proper delivery, which does confer such real possession.

cases to be stated immediately, that it is by no means so well settled in our practice, as in England, what acts of constructive de livery are to be held equivalent to actual delivery.

744. In a former section it was mentioned, that a class of cases had been generally stated as cases of stoppage in transitu, but which there seemed to be reason for referring to a different principle, and for considering as examples of the vendor's lien, Supra, Part 8. cap. 1. § 1. and 2. In these cases it was observed, that there was no interval between the completion of the sale and the delivery, during which the goods could be in transitu, and therefore no question of stoppage in transitu could arise; but, on the failure of the vendee, without paying the price, the question which arose was, whether such a delivery, actual or constructive, had taken place as was sufficient to divest the vendor of his lien. In like manner, in our law, although as has now been observed there can be no such thing as a lien in the vendor, yet there is a class of cases in which a question arises in circumstances exactly analogous to those in which the vendor's lien comes into operation in England. The very same reasons which were stated in the preceding section, as being sufficient to establish a distinction between the cases of lien and the cases of stoppage in transitu, are applicable to the cases now alluded to in the law of Scotland. These cases, therefore, shall be stated, not as examples of the right of stoppage in transitu, but of the right, by whatever name it may be called, which the vendor has by our law to keep possession of the thing sold, in security of the price, upon the vendee becoming insolvent without paying it, and to countermand the delivery where a delivery order has been given to the vendee.

745. In the second place, in those cases in which there is an interval between the completion of the contract and the delivery, during which the goods are in the hands of a middle man employed to convey them from the vendor to the vendee, and not in the hands of the vendor himself, or of a custodier holding them in his name, and during which, consequently, they are truly in a state of transitus, the right which the vendor has of stopping them upon the vendee becoming insolvent, before they are delivered, is very nearly, although not in all respects, upon the same footing in Scotland as in England.

746. In England, the general property of the thing sold is in the vendee from the moment when the contract is completed, and the vendor has only a special property and lien while the goods