possession which he himself had, and there is a much greater danger of creating a false credit in favour of the vendor from his continuing in possession of the goods.

761. In England, as has been mentioned in the preceding section, goods in the hands of a wharfinger, warehouseman, or other custodier, may be effectually transferred to a purchaser by a sale, and intimation to the custodier or other act of constructive delivery by which, without any actual possession given to the vendee, the vendor is divested of his lien, and the property is vested indefeasibly in the vendee.

762. In Scotland, in like manner, it is now settled, that goods in a similar situation may be effectually sold and transferred without being removed, or actually delivered to the vendee, and that the acts of constructive delivery, which, for the convenience of merchants, have been admitted in cases of this kind, are equally effectual as actual delivery, to divest the vendor of the property, and of his right to resort to the goods in security of the price. On the one hand, therefore, if, after such sale and constructive delivery, the vendor should fail, the price being paid, his creditors are not entitled to take the goods as a part of his estate; and, on the other hand, if the vendee should fail without having paid the price, the vendor must claim for it as a personal creditor, and cannot take the goods, on the ground that they have never been actually delivered. In every possible situation, in short, in cases of this kind, with the single exception of delivery to a carrier for the purpose of transport, the acts of constructive delivery which have been recognised in law are equivalent to actual delivery. 763. These doctrines have been established by the following

cases:

James Maxwell had ten hogsheads of tobacco in the public, weigh-house of Glasgow. He sold it to Mrs. Simpson, and it was weighed over by Maxwell in her sight, and the casks marked with the initials of her husband's name. In this situation, the goods, were arrested by a creditor of Simpson; and a forthcoming being raised, Maxwell the seller, who had not received the price, opposed the claim of the arrester, on the ground that the property of the goods was still untransferred, no delivery having taken place. But the Lords found, that a declaration of the weigh⚫ house clerk of Glasgow, bearing, that James Maxwell had weigh'ed over to Robert Simpson's wife ten hogsheads of tobacco, weighing 4500 pound weight, marked R. S. did transmit the

property to Simpson, and that therefore it ought to be made 'furthcoming to Thomas Main, his creditor arrester.' Main v. Maxwell, 27th July, 1710.

764. In like manner, when goods have been lodged, after importation, in the king's cellars, under the bonding acts, they may be sold and effectually transferred to the vendee by a constructive delivery, without any actual removal or delivery of them to the vendee. As a great deal of difference of opinion prevailed upon this subject before the rule was finally settled, it will be proper, before stating the cases, to mention the provisions of the statutes by which the bonding system was established, and also to explain the manner in which the sale of goods is carried on, while they remain in the king's warehouse, and the nature of the constructive delivery which has here been admitted to supersede the necessity of an actual delivery.

By the act of the 26 Geo. 3. c. 59. when certain goods are imported, twenty days were allowed after the ship arrived, to pay the duty, during which time the goods remain on board; if the duties were not paid within that time, the goods were to be removed into the king's cellars, after which, three months were allowed for the payment of the duty; but if it is not paid at the expiry of this period, the goods were ordered to be sold, and after deducting the duties, the surplus paid to the owner.

By a later statute, the 43 Geo. 3. c. 132. a new and improved system was introduced By § 39, 42, 43, of this act, it is enacted, 1st, that when the goods of which schedules are annexed, comprehending a great part of the imports of this country, are imported, a bond may be granted to the crown by the importer for the duties, and they may remain deposited for fifteen months before the duties are demandable. 2dly, That the goods shall be placed in warehouses furnished at the expense of the importer or proprietor, and approved of by the officers of the revenue. Sdly, That books shall be kept, wherein shall be noted what is deposited and what is taken out, with the name of the persons to whom it is delivered. 4thly, That the warehouse shall be under double locks, the key of the one lock to be kept by the revenue officer, and the key of the other by the importer or proprietor, and that the goods shall not be removed without payment of the duties. 5thly, That if the goods are not removed in fifteen months, they shall be sold publicly, the price to be applied first, for payment of the primage, freight, and charges of warehouse room; and secondly,

for payment of the duties. 6th, That samples shall be taken in a certain manner in presence of the revenue officer. 7th, That the proprietor or importer shall have access to inspect his goods at any time, on giving notice to the public officer in a particular

manner.

765. It has been mentioned, that when goods are lodged in a warehouse under this act, they are frequently sold, and pass through a great many hands before they are removed from the warehouse, and delivered to the last purchaser. It has also been mentioned, that in place of actual delivery, it is usual to give the vendee an order for delivery upon the custodier, and that the intimation of this order has been held equivalent to delivery. It will also be seen, that an order of this sort has been held to be negotiable like a bill of exchange, so that the goods may be effectually sold, and transferred by the indorsation of it to a purchaser, and intimation to the custodier.

These points have been established by the following cases.

766. In the first place, it was at one time decided by the Court of Session, that when goods lying in the king's warehouse have been sold, and an order of delivery given to the vendee, and intimated by him to the custodier, if the vendee should fail without having paid the price, the vendor might reclaim the goods, notwithstanding this act of constructive delivery. This rule was applied by the court in three several cases; but the last of these judgments was reversed in the House of Lords, and the rule was established, that by a sale and intimation of an order of delivery, goods in the king's warehouse, may be effectually transferred to a purchaser without any actual delivery. The circumstances of this last case, were the following *.

Auchie, Ure, and Company, having imported some rum, which was lodged in a bonded cellar, in terms of the statute, sold 32 puncheons to Mathie, and gave him an order on Sandemans, the keepers of the cellar, for delivery of the goods, which was intimated to them, and the transfer marked in their books. Mathie took away 18 of the 32 puncheons. The remaining 14 remained in the cellar when the price fell due, and Mathie was unable to pay it. Upon this a petition was presented by Auchie, Ure, and Company, to the Water Bailie of Clyde, praying for delivery of

The other two cases are not reported, but are stated by Mr. Bell, vol. i p. 111. in notis.

the 14 puncheons to them. This was opposed by the trustee for Mathie's creditors. The Water Bailie finds that the pursuers ⚫ are entitled in law to reclaim the fourteen puncheons of the rum 'sold by them to the defender, William Mathie, still remaining in 'the King's cellars, in respect the price thereof has not been paid; 'therefore prefers them to the said rum, as being still their pro'perty, &c. This judgment was confirmed by the Court of Session; but upon an appeal to the House of Lords, their interlocutors were reversed by a judgment in the following terms: The 'Lords find that the pursuers, in the application to the Water Bailie (vendors) are not entitled in law, in respect the price there❝ of was not paid, to retain the puncheons of rum in question, sold by them to William Mathie, which were remaining in the king's cellars: Find, that in the circumstances of this case, these goods ought, in a question between the vendor and vendee thereof, in ' whose possession the same were, to be considered as being in the possession of William Mathie, the vendee, before he became 'bankrupt, inasmuch as Messrs. Sandeman ought, in such a ques 'tion between such parties, in the circumstances of this case, to be considered as holding them prior to the bankruptcy, as the ' agents and servants of the vendee only *?

6

767. In the second place, before this judgment of reversal was pronounced, the Court of Session, in a case which occurred some years after that of Auchie, Ure, and Company, had not only come to be satisfied that their former opinion was erroneous, but they had carried the matter further, and held, that a delivery-note was negotiable like a bill of exchange, so that after a sale of goods in the king's cellar, and intimation of a delivery-note, the vendee might again sell and transfer the goods to a second purchaser, by

Mathie's Trustee v. Auchie, Ure, & Co. 23d Nov. 1804; Judgment of House of Lords, dated 16th March, 1810.

It is worthy of observation, that, in the judgment of the House of Lords in this case, the question does not seem to be considered as a question of stoppage in transitu, but as a question whether the vendor was entitled to retain' the goods, as having been still in their possession at the date of the vendee's failure; and the import of the judgment is, that the vendor had no right of retention, because the constructive delivery by intimation of the delivery-note to the custodiers put an end to their possession for his behoof, and made them from thenceforward hold the goods for behoof of the vendee. This judgment, therefore, seems to confirm the view adopted in the text of the nature of this class of cases, both in England and Scotland, and to justify the arranging of them under a distinct head from the proper cases of stop page in transitu.

indorsing the note to him, and his making intimation to the custodier. In this way the goods may pass through a great many hands, and the property be effectually vested in each successive purchaser, without any actual delivery, so as to protect him from any claim at the instance of the original owner, in the event of the price not being paid by the first purchaser, while the goods still remain in their original situation. This was decided in the case of Tod and Company v. Rattray, 1st February, 1809, where Tod and Company having imported gin, and lodged it in a bonded cellar, sold it to Kippen and Murray, who again sold it to Strong, by whom it was sold to Rattray. On each of these successive sales, an order of delivery was granted to the vendee, and intimated to the custodier. The first purchaser having failed without paying the price, while the gin was still in the cellar, it was claimed by Tod and Company. But the Court held that the property of the ¿ geneva in question, belonged to David and Thomas Rattray, the last purchasers thereof."

768. In the third place, it is necessary to observe, that the mere giving or indorsing a delivery note to the vendee, is not of itself a sufficient constructive delivery to divest the vendor of the property and right of retention, unless intimation be also made to the custodier. In the following case, where no intimation had been made, it was held that the transfer was incomplete, and that the vendor was entitled to countermand the delivery, upon the vendee failing without having paid the price; although, in this case, the bonded cellar belonged to the vendors themselves, and they were themselves the custodiers.

Hall and Company imported 10 pipes of wine which were lodged in a bonded cellar, of which they themselves, as general agents, were the keepers. They sold the wine to Bodan and Skirving, and gave them a delivery order, which, however, was not intimated to the revenue officers, although the sale was entered in the cellar books and other books of Hall and Company. Various subse quent sales were made after this, but none of them were intimated to the custodiers; and, at last, before the wine was removed, Bo

In the analogous case of the transfer of goods in the West India Docks, by indorsement of a dock warrant, the English courts have held, that these documents are in this respect upon the same footing as bills of exchange and bills of lading, and that the indorsation alone transfers the property, without intimation to the custodier, Supra, No. 678.