vency. Considerable controversy arose in the English courts, when this right began to be considered, as to whether the assertion of it vested in the vendor properly, and thus rescinded the contract of sale, or whether he merely retained over the property a defeasible lien. It is now settled, that the privilege is one of pledge or lein only; not, however, subject to the rules governing ordinary liens, but resting on principles sui generis, and on this very clear distinction; that in the case of common liens, their existence depend on both the right, and the fact of possession; and if a party abandon the possession, or the right to posession, the lien is lost, and cannot be resumed. But the lein in the case of a vendor is not lost by parting with the possession, but springs from his original ownership. That the assertion of this right does not rescind the contract of sale, or divest the property, is shown in this; that by the very contract of sale, the property is vested in the vendee, because he is at the risk of any accident; and his right to the possession depends upon the lein of the seller, to be asserted during the period the goods are passing from the hand of the one, to the hand of the other, at the place where the delivery is to be made. So we discover that the privilege of the seller to stop the goods, is a lein taking root in his equitable claim to payment of their value; and the right of the purchaser to take them into possession, depends on his paying the price agreed upon.

We proceed to the contemplation of the general rules of law which apply to this description of mercantile right:

1st. And first of the effect of the assertion of the right upon the contract of sale.

We have seen in our introductory remarks, that the contract of sale, notwithstanding the act of stoppage in transitu, remains unaffected. It follows, that each party retains the advantages which he originally derived from the engagement. The vendee may claim the right of possession, by tendering the price originally stipulated to be paid; or he may vindicate his right of property, if that right has been encroached upon. Gordon vs. Harper, 7 Term R., 9, Edwards vs. Brewer, 2 Meeson and Welsbys' R., 275. Goods which have been stopped in transitu, remain, while detained, at the risk of the vendee; and they are so far considered his property, that the vendor cannot sell them, until after the expiration of the time of a stipulated credit. But, after that period has elapsed, he may, on the refusal of the vendee to pay the price and take the goods, subject them to sale, and indemnify himself. Langford vs. Tiler, Salkeld, 113. In the case of perishable goods, the vendor would also have authority to effect a sale, before the time of credit expired, (Sands vs. Taylor, 5 Johns. R., 411,) and recover of the vendee the difference between the original price and the sum realized on the sale. So on a tender of the goods, after stoppage, the vendor may recover on the original contract. 15 Maine R., 314. The cases which discuss this point in the subject, are Clay vs. Harrison, 10 Barnwell and Cresswell, 99, Stephens vs. Wilkinson, 3 Barn. & Ad., 323, Wilmhurst vs. Bowker, 5 Bingh., N. C., 547, Edwards vs. Brown, 2 Mee., & W., 375, Hodgson vs. Loy, 7 T. R., 445, Newhall vs. Vargas, 13 Maine, 93, Jordan vs. Janes, 5 Ham., 98, Wentworth vs. Outhwaith, 10 M. & W., 436.

2d. As between what persons this right arises. The fact that the privilege of stoppage in transitu has been compared to, and justified by, the lein which a party selling always retains for the price of his property, shows that it can only spring from the relation of seller and buyer. This relation has been held to exist, however, for the purposes of stoppage in transitu, where an

agent for commission, and with the intention of paying for them out of funds to be derived from his consignee, obtains goods on his own credit and risk. Newhall vs. Vargas, 13 Maine R., 93, Ilsley vs. Stubbs, 9 Mass. R., 65, Jenkyns vs. Usborne, 7 M. & G., 678, Fiese vs. Wray, 1 East., 93, Newsom vs. Thornton, 6 East., 17. But a surety for the price of the goods has no such privilege. Siffkin vs. Ray, 6 East., 876.

3d. When this right may be asserted. The vendor's privilege of stoppage in transitu, depends on the assertion of it during the transit, or passing of the thing from his possession, to the possession of the vendee, at the place where, by the terms of the contract of purchase, it is to be delivered. As the possession of the vendee may be actual or constructive, it results that much controversy will ensue, as to whether or no the goods have arrived at the place of destination, and have actually, or constructively, gone into the vendee's possession. The principle to which the circumstances of each case are to be adjusted, is, that the right prevails, while even the property is in the hands of the carrier as such, whether appointed by the consignee, or not, and while they remain in a place of deposit connected with their transmission. Nichols vs. Lefevre, 2 Bing., N. C., 83, James vs. Griffin, 1 M. & W., 20, Edwards vs. Brown, 2 M. & W., 375. The main circumstance to be considered in each case, so far as this point is concerned, is, whether the final delivery of the goods has been made at the place contemplated by the parties, and they have gone, in effect, into the hands of the consignee, or his agent. While they are being conveyed to that place of delivery, and while they are in the hands of the carrier, under the original contract of conveyance, and not under some new, actual or implied engagement between him and the vendee; and while they are in some place of deposit, not specifically appointed by the vendor, after obtaining contractive or actual possession of the goods, they remain subject to the right of the vendor to stop them, as in

transitu.

4th. What determines, or not, the right of stoppage in transitu.

1st. Independent of controlling circumstances, which rebut this presumption, the delivery of part of the goods, imports an intention to deliver the whole. But this fact will be subject to explanation; and if it appear that the delivery of part was made with the design of still retaining the right of stoppage, as to the rest, this right will be awarded. Hammond vs. Ander'son, 1 N. R., 69, Sluby vs. Hayward, 2 Hen. Black, 504, Hanson vs. Meyer, 6 East., 614, Bunney vs. Poynts, 4 Barn. & Ad., 570, Dixon vs. Yeates, 5 B. & Ad., 339, Betts vs. Gibbins, 2 Ad. & E., 73.

2d. The arrival of the property at the place of destination, cannot be anticipated by the consignee. The place of delivery, from the nature of the contract, is to be regarded; and the possession which the vendee may obtain, by going forth and meeting the goods on their way, will not defeat the right of stoppage. Holst vs. Pownal, 1 Esp., 240, Mills vs. Bull, 2 B. & P., 461, Openheim vs. Russel, 3 B. & P., 54, Foster vs. Frampton, 6 B. & C., 107, 1 Esp. R., 240, Abbot, 304.

3d. The right of stoppage in transitu cannot be defeated by another creditor. So that an attaching creditor, or carrier, in respect of a general lien, will not be permitted to deprive the vendor of this privilege. It is the superior lein, arising from a principle of justice in respect of his original dominion in the property. It would be unfair to defer his lein, resting, as it does, on his original ownership in the goods, to a claim which does not take its foundation in the particular property. Smith vs. Goss, 1 Camp. 282, Butler vs.

Woolcot, 2 N. R., 64, Nichols vs. Lefevre, 2 Bing. N. C., 83, Buckley vs. Fenniss, 15 Wend., 137, Naylor vs. Dennie, & Pich., 198.

4th. The delivery to an agent of the consignee, at the place of destination, or at a place where they are to wait a new direction from him, is the same as a delivery to the vendor, and puts an end to the right of stoppage. Richardson vs. Goss, 3 Bos. & P., 119, Leeds vs. Might, Ibid., 320, Scott vs. Pettit, Ib., 469, Dixon vs. Baldwin, 5 East., 175.

5th. By a transfer of the interest of the consignee to a stranger, the right of stoppage in transitu is also defeated.

It was not until an immense amount of legal argument was expended, that the true nature of this means of defeating a stoppage in transitu was ascertained. At one time it was put upon the negotiability of the bill of lading; but now it is understood that the matter rests on the bona fide sale of the goods by the vendee, after they have left the vendors possession, and the bill of lading is only looked to as evidence of the assignment, and symbolical of delivery. The requisites of a sale to defeat this right are, that it be upon valuable consideration, and accompanied by a transfer of the bill of lading. Stanton vs. Eager, 16 Pich., 473. Should the sale occur without a transfer of the bill of lading, a presumption will arise that the second vendee has had notice that the first vendor has not been paid, and that his lien continues. Crown vs. Rider, 6 Taunt., 433, Stanton vs. Eager, 16 Pich., 473, Gardner vs. Howland, 2 Pich., 399, Newborn vs. Thornton, 6 East., 41, Hatfield vs. Phillips, 9 M. &W., 467.

To make the sale effectual by the mere transfer of the bill of lading, would be to make the bill of lading negotiable; and to recognize the transfer of the goods, without the assignment of the bill, would be to deprive the transaction of the higest evidence of the contract. It is upon this reasoning that the necessity for the concurrence of both acts is insisted upon. The leading case upon this branch of law, is Lickbarrow vs. Mason, reported in 2 Term. R., 1 Henry Black, and in 6 East. Various ingenious efforts have been made to show that this case was no authority in favor of the negotiability of bills of lading, and that the judgment was placed upon the fact of sale. It is very clear, however, that the court did not regard this distinction; for in looking into the argument and opinion, it will be seen that upon the transfer of the bill of lading, per se, the whole case was considered. Bancroft, of counsel for defendant, says, "It has been taken to be clear and established law, that a general endorsement of a bill of lading does transfer the property." Askinst, J., said, "The instrument is in its nature transferable," and "similar to the case of a bill of exchange." And Butler, J. said, in answer to the assertion, that no case had decided that a bill of lading transferred the property; that "the universal understanding of all mankind preclude that question."

There is no doubt, however, that the distinction is a proper one, and that the true position upon which to place the defeat of the vendor's right is, not that by a negotiable character in the bill of lading, the mere assignment of it operates to deprive the vendor of his lien; but that the sale itself effects this, which is evident by the transfer of the bills of lading, as a representation of delivery to a third party, in good faith, upon valuable consideration.

Art. VIII.-COMMERCIAL CODE OF SPAIN.

NUMBER 1x.

INSURANCE.

CONCERNING INSURANCE OF LAND TRANSPORTATION.

ARTICLE 417. The effects which may be transported upon the land, can be insured. The Conductor himself, or a third party, receiving, on his account, the damages which may happen to them.

418. The contract of Terrestial Insurance ought to be reduced to a written policy, which ought to be a solemn instrument, executed before a notary or broker, or it may be a private instrument between the contracting parties. In the last case there shall be made out the necessary exemplifications of the same tenor, for the underwriter and the insured.

419. Private policies are not executive unless there shall have been previously proved the authenticity of the signatures of the respective parties, by judicial cognizance, or other mode of legal proof.

420. Policies of Terrestial Insurance, solemnly executed, as well as those made by private contract, shall contain the following circumstances:— First. The names and domicils of the underwriter and the insured, and that of the conductor of the effects.

Second. The specific qualities of the effects insured, with the designation of the number of the bales, and of the marks which they contain, and the value at which they may be estimated in the insurance.

Third. The portion of the same value which may be insured, if the insurance should not be extended to the whole.

Fourth. The premium agreed upon for the insurance.

Fifth. The designation of the point where the goods insured are to be received, and of that in which they are to be delivered.

Sixth. The route which the conductors are to follow.

Seventh. The risks for which the underwriters shall be responsible. Eighth. The appointed time for which the risks shall be held, on account of the underwriter, if the insurance be for a limited time, or a fair expression of the time in which the responsibility shall continue, in order to verify the delivery of the effects insured, at the place of their destination.

Ninth. The date at which the contract was published.

Tenth. The time, place, and manner, in which the premiums of insurance shall be paid, or the sums insured in each case.

The form of the policies shall be the same when the conductor himself of the effects shall be the underwriter.

421. An insurance cannot be contracted except in favor of the legitimate owner of the effects which may be insured, or of the person who holds an interest in them.

422. The value at which the goods insured are to be estimated under the insurance, must not exceed that which they may have according to the prices current in the place where they are destined; and when they exceed such valuation of those rates, the insurance shall be void with respect to the insured.

423. Exception not having been made in the policy of insurance of any risks especially determined upon, then shall be held as comprehended in the

contract all the damages which may happen to the effects insured, of whatever kind they may be.

424. There happening to the effects insured a damage which may be excepted from the insurance, it shall be for the underwriters to justify themselves from the charge, in due form, before the judicial authority of the immediate place in which the said damage may have happened, within twenty-four hours following the time of such occurrence, and without such justification the exception which they propose for the exoneration of their responsibility of the effects which have been insured, shall not be admitted.

425. The underwriters shall be subrogated in the rights of the insured to reclaim of the conductors the damages which the goods insured shall have suffered, for which the latter may be responsible, according to the regulations of section 4, Title 3d, Book 1 of this Code, which relates to Common Carriers.

MERCANTILE LAW CASES.

BARBOURS' REPORTS-LIABILITY OF COMMON CARRIERS-LAW OF REPRESENTATIONS IN FIRE INSURANCE-BILLS OF EXCHANGE-CRIMINAL LAW-CONSTRUCTIVE PRESENCE.

THE Third Volume of Barbour's Reports contains the reports of cases in law and equity, decided in the Supreme Court of the State of New York, in the year

1848.

Many of our readers are aware that by the new constitution of the State of New York, it is divided into eight Judicial Districts, there being four Judges in each District, and in the whole, thirty-two judges; of these, four sit in the Court of Appeals, and twenty-eight hold Courts for Argument at law and in equity. Special Terms, Circuit Courts, Courts of Oyer and Terminer, and Courts for Special Motions; or in other words, in each of the Judical Districts, three judges are constantly employed in the various duties which appertain to their offices; and in four Districts out of eight there is one more judge in each District also employed in his Judicial duties. The four other judges sit in the Court of Appeals, with four Appeal Judges, elected by the people for that purpose, so that the Court of Appeals consists of eight judges, four Appeal Judges, and four Supreme Court Judges.

'LIABILITY OF COMMON CARRIERS. The first case we notice is that of Isaacs vs. Blanchard, page 388. This was an action against a common carrier, the proprietor of a stage-coach running from Whitehall to Troy, in New York. The plaintiff brought an action for a coat worth $18, delivered to the driver of the stage-coach, to be carried to Troy from Fort Miller. Nothing was paid for carrying the coat. The driver refused to put it on the way-bill when he received it, but he stated that he would get the next agent to do it, which he did not do. The coat was lost; a suit was brought in the Justices' Court, for the value of the coat, and judgment was given against the stage-proprietor for damages and costs. On appeal to the Supreme Court, they held that the plaintiff could not recover, and reversed the judgment. In delivering the opinion of the Supreme Court, on appeal, Willard, Justice, said :-"If the delivery of goods is made to a servant of the carrier, it must be one who is instructed to receive the goods, and not to a person engaged in other duties." The Court said that there was no proof in this case that the coat ever came to the possession of the defendant or his agents.

LAW OF REPRESENTATIONS IN FIRE INSURANCE. The next case we notice is at page 73-Gates vs. the Madison County Mutual Insurance Company. In this