price shall be paid down, the remainder in three months; the vendor cannot sue for the latter moiety, until the expiration of the three months; although part of the first half is unpaid (i).

Where there is an entire order for, and sale of goods (k), and part only are delivered, and the vendor refuses to deliver the remainder, the vendee is at liberty, (as we shall presently observe), within a reasonable time to return the goods delivered. But if he retain them after the period for the delivery of the remainder, he is liable upon a quantum meruit for the price or value of that portion which he thus appropriates to his own use (1). But the vendor cannot sue for the value of the goods delivered, before the expiration of the time fixed for the completion of the contract, in regard to the complete delivery (m).

In the cases of sales by auction; and of contracts entered into by the East India Company, at their sales; it is usual to introduce an express clause, authorising a re-sale by the vendor, in the event of the purchaser's default, and charging him with the loss or deficiency, if any, and the expenses. It appears to have been the opinion of Lord Ellenborough, that the law did not impliedly confer this power of re-selling (n); but it is established by a late decision, that such power exists, even in the absence of an express stipulation, where the price is unpaid, and that the purchaser is responsible for the loss which may occur, although he did not consent to the re-sale (o). In these cases the declaration should be special, for not accepting the goods, shewing the damages occasioned thereby, &c. (p).

Where the property in the goods has become absolutely vested in the purchaser, by his having received and enjoyed the use of them, and he has given a bill for part of the price, the remainder having been paid, the seller may sue the vendee upon the bill to recover the amount, although the seller forcibly re-took the

(i) Day v. Picton, 10 B. & C. 120; see Planché v. Colburn, 8 Bing. 14; 1 M. & Scott, 51; 5 C. & P. 58, S. C. (k) As to which, see ante, 303, 313. (1) Oxendale v. Wetherell, 9 B. & C. 386; Mavor v. Pyne, 3 Bing. 285; 11 Moore, 2, S. C.

(m) Id. In the case of work done to an article, the property of the defendant, the workman must complete the work, if required by the contract, before

he can sue for what he has performed; Sinclair v. Bowles, 9 B. & C. 92.

(n) See Greaves v. Ashlin, 3 Camp. 426. But it does not appear that the price had not been paid in this case.

(0) Maclean v. Dunn, 1 M. & P. 761; 4 Bing. 722, S. C.

(p) Id., Hone v. Milner, Peake's R. 58, 3rd ed.; 2 Chitty Pl. 5th ed. 264, and note.

possession of them from the vendee after the delivery. The contract is not by such tort rescinded, and the purchaser's remedy is an action of trespass, &c. (q). Where a coach was sold, upon the terms of payment by a variety of bills of exchange, and it was stipulated that the vendor "should have and hold a claim upon the goods until the debt was paid;" it was decided, that this clause was a mere licence to retake, and was revoked by the vendee's death; so that after that event the vendor could not seize or detain it, upon the dishonour of the bills (r).

Stoppage in transitu.-The vendor has not only a lien on the goods for the price, whilst they are in his possession, but may, after he has parted with the actual possession, and whilst the goods are in transitu, retake them, on the bankruptcy or insolvency of the vendee; the price being unpaid. This is termed the right of stoppage in transitu (s); and is a species of equitable lien, recognised and acted upon by the common law courts, for the purposes of substantial justice (t). It is said not to proceed on the ground of the contract being rescinded (u): and the decision that part payment of the price does not destroy this right (x), gives some support to the doctrine. It may, however, admit of considerable doubt, whether the stoppage in transitu has not the effect of altogether rescinding the contract, and revesting the property in the vendor; at least of entitling him to treat the contract as wholly determined. If the effect merely be to restore to the owner a right of possession, (not of absolute property,) and to place him in the same situation as if he had not parted with the goods, it is obvious that the seller is not justified in re-selling the goods, until the assignees of the insolvent vendee have elected whether or not they will sanction and act upon the contract by taking to and paying for them. The benefit of the privilege of stopping in transitu would be considerably diminished, were it incumbent on the vendor to wait, (perhaps for an indefinite period,) until the choice of assignees, and until they come to a decision as to the course they intend to adopt (y).

(q) Stephens v. Wilkinson, 10 B. &

C. 320.

(r) Homes v. Ball, 7 B. & C. 481. (s) See, in general, Whitaker on Lien and Stoppage in transitu; Selw. N. P. tit. Stoppage in Transitu; 3 Chitty Com. Law, 340.

(t) Per Lord Kenyon, in Hodgson v. Loy, 7 T. R. 440; per Parke, J., in Tucker v. Humphrey, 1 M. & P. 392. (u) Id.

(x) Hodgson v. Loy; Feise v. Wray, 3 East, 93.

(y) See Clay v. Harrison, 10 B. &

The point is, whether the goods have arrived at their final destination, or are still in transitu.

They are considered to be in transitu, and, as such, reclaimable by the vendor, if only in the hands of a middleman, as a packer (z), or a warehouseman, at a stage upon their transit (a). And it is immaterial through how many carriers' hands they may have passed, if they still have to reach the spot to which they were originally consigned (b). And they may be reclaimed by the vendor, although the carrier may have conveyed the goods to the wharf of the vendee, to which they were consigned; if the goods were to be weighed, and the freight was to be paid, before the vendee could acquire a right of possession; and the goods, though in part unloaded, had not been weighed, and the carrier still claimed an adverse special interest or property in the goods, as a lien for the freight, &c. (c).

And although the ship in which the goods are conveyed may have reached the wharf of the vendee himself, to which they were consigned by the vendor, and the vendee has received an invoice of the goods, yet the transitus continues whilst they are in the ship, and the consignee has not taken possession; and it is not material in such case, that the vendee was sometimes in the habit of selling goods of a similar kind from the ship, without having them previously landed (d).

Although the goods may have been taken to the place to which they were to be transmitted, yet they cannot, it seems, be said to have arrived at their final destination, so as to defeat the vendor's right of stopping them, whilst they remain in the hands of the wharfinger or carrier, in that character; provided he be not the actual agent of the consignee, beyond his duty as a mere wharfinger or carrier (e).

C. 99. It may be added, that if the price be in arrear, the insolvency seems to be tantamount to a default in the vendee, which ought to entitle the vendor to resume the property in the goods at once, and re-sell them; see ante, 298, 339. Effect of a bill of exchange for the price, being outstanding; see Bunney v. Poyntz, ante, 340; 3 Chitty Com. L. 341; Davis v. Reynolds, 1 Stark. R. 115; Vertue v. Jewell, 4 Camp. 31; Ruck v. Hatfield, 5 B. & Ald. 632.

(z) Ellis v. Hunt, 3 T. R. 467; Loeschman v. Williams, 4 Camp. 181. (a) Smith v. Goss, 1 Camp. 282. (b) Hodgson v. Loy, 7 T. R. 440; Dixon v. Baldwin, 5 East, 185.

(c) Crawshay v. Eades, 1 B. & C. 181; 2 D. & R. 288, S C.; cited in Allan v. Gripper, 2 C. & J. 218.

(d) Tucker v. Humphery, 4 Bing. 516; 1 M. & P. 378, S. C.

(e) See per Best, C. J., Bartram v. Farebrother, 1 M. & P. 526; 4 Bing. 579, S. C.

But, where the insolvent has no warehouse of his own, and is in the habit of using that of a wharfinger or packer, &c., as the repository of his goods until sold, &c., and there is no place of ulterior delivery immediately in view, the right of stopping the goods ceases when they have reached such warehouse. It will be presumed that they have reached the end of their original journey, if, without new orders, they are to remain stationary (f). And it such journey be once ended, no subsequent transit can revive the vendor's right (g). And it seems that the delivery to the vendee of part of goods, sold under an entire contract for an entire price, is, in law, a delivery of the whole for the purpose of putting an end to the transitus (h).

There are instances in which the right of stoppage in transitu does not exist, although the goods may not have been removed since the sale. As, if they remain upon the vendor's premises, upon the terms that warehouse rent shall be paid, and the same is paid accordingly, by a person to whom the vendee re-sold the goods (i). Or if the goods, being in the hands of a third person, be transferred into the name, or marked with the mark, of the vendee, by the consent of the seller (k).

If the vendee, on the arrival of the goods, for his own convenience, desire the carrier to let the goods remain in his warehouse, to be delivered out as the vendee should want them, the transitus is at an end, although the carrier may claim a lien on the goods; for, under these circumstances, the character of the carrier, as a carrier, is altered, and he becomes invested with that of a warehouseman and agent of the vendee, at least as regards the vendor's right of stoppage (1).

In general, the transitus continues until the goods reach the place originally named by the vendee to the vendor as the ultimate destination of the goods; and, in such case, the transitus

(f) Leeds v,Wright, 3 B. & P. 320; Scott v. Pettit, id., 472; Dixon v. Baldwin, 5 East, 175; Rowe v. Pickford, 8 Taunt. 83; per Parke, J., Tucker v. Humphery, 1 M. & P. 393; 4 Bing. 516, S. C.; Foster v. Frampton, 6 B. & C. 109. Aliter where the goods are delivered to the wharfinger, &c., with notice that the vendee is not to have them until paid for, &c., Loeschman v. Williams, 4 Camp. 181.

59.

(g) Id. Noble v. Adams, 7 Taunt.

(h) Slubey v. Heywood, 2 H. Bla. 504; Hammond v. Anderson, 1 N. R. 69; Hanson v. Meyer, 6 East, 614.

(i) Hurry v. Mangles, 1 Camp. 452. (k) Harman v. Anderson, 2 Camp. 243; Spear v. Travers, 4 id., 251; Whitehouse v. Frost, 12 East, 614; Stoveld v. Hughes, 14 East, 308.

(1) Allan v. Gripper, 2 C. & J. 218.

does not cease, although the general agent of the vendee, who bought the goods, and who was also a warehouseman, received the goods, at an intermediate place, in his warehouse, for the purpose of forwarding them (m). But where the vendee, even before the arrival of the goods at the place of their ulterior destination, does any act equivalent to taking possession, as the drawing samples of the goods, and causing the carrier to warehouse the goods, until further directions, &c., the transitus is at an end (n).

A bill of lading, while in the hands of the original consignee, unindorsed, does not interfere with the vendor's right to stop the goods before they arrive into the possession or under the controul of the consignee, if he become bankrupt or insolvent (0). And, à fortiori, the delivery of a shipping note, (which is not negociable or transferable,) to the consignee, or by him to a third person, cannot bar the right (p). If, however, the consignee assign the bill of lading to a third person for a valuable consideration, and the latter receive it bonâ fide, without notice of any circumstances, which may render the bill of lading not fairly and honestly assignable, the right of the consignor as against such assignee is divested; for a bill of lading so indorsed transfers the property (q).

The right is sufficiently exercised by a mere claim by the vendor, or his agent, to a return of the goods whilst in transitu; although no actual possession be taken (r), and, in fact, could not, on account of the goods being quasi in custodiâ legis, by reason of duties being unpaid, or on account of the goods being in a ship performing quarantine (s). Nor is the right destroyed by a foreign attachment, at the suit of a creditor of the insolvent vendee (t);

(m) Coates v. Railton, 6 B. & C. 422. Aliter where the goods reach the only place named as their destinanation, and the carrier there holds them as a warehouseman for the consignee; id.; Rowe v. Pickford, 8 Taunt. 83; Leeds v. Wright, 2 B. & P. 320; Dixon v. Baldwin, 5 East, 175; ante, 343.

(n) Forster v. Frampton, 6 B. & C. 107; 9 D. & R. 108, S. C.; 2 C. & P. 469, S. C.; see also Allan v. Gripper, 2 C. & J. 218. The vendor gives up the right by signing a composition (with other creditors) for the price; Nichols v. Hart, 5 C. & P. 179.

(0) Tucker v. Humphery, 7 M. & P.

394, 395, per Parke, J., 4 Bing. 516, S. C.

(p) Id. Akerman v. Humphery, 1 C. & P. 53.

(q) Lickbarrow v. Mason, 2 T. R. 63, S. C., in 5 T. R. 367, 683, 6 T. R. 131, 1 H. Bla. 357, and 6 East, 20, note (a); per Parke, J., in Tucker v. Humphery; when otherwise, see Craven v. Ryder, 6 Taunt. 433; Ruck v. Hatfield, 5 B. & Ald. 632; Vertue v. Jewell, 4 Camp. 31.

(r) Mills v. Ball, 2 B. & P. 457. (s) Northey v. Field, 2 Esp. R. 613; Holst v. Pownal, 1 id., 240.

(t) Smith v. Goss, 1 Camp. 282.