equity,1 or he must discharge the debt secured by the transfer.2 If he pursues the former method, the court will be able to compel the transferee to have recourse to other property of the transferrer, which he may hold as security for the debt, before resorting to the goods covered by the bill of lading.3

405. Absolute Transfer of Bill of Lading, with Sub-purchase Price unpaid. Even though the transfer be absolute, if the transferee has not paid the purchase price to the first buyer, such unpaid price may be subjected in equity to the original seller's right of stoppage. A like result has been reached where the goods have been sold by judicial order during their transit, and the proceeds paid into court.5 On the other hand, if the original buyer takes out a policy of insurance on the goods, this will not enure to the benefit of the seller. The insurance company is not a sub-purchaser of the goods which are lost or damaged during transit. "There is no contract or agreement which entitles the vendor to go beyond the goods in the state in which they arrive, and to claim moneys, which have been paid by the underwriters to the purchasers of the goods in respect of their loss by the non-arrival of their property." 6

406. The Termination of the Transit. If the transit has not been intercepted in one of the ways which we have been considering, the next important question is, Has the transit terminated? "That," as a distinguished judge has said, "is always an exceedingly difficult question, and before we can apply the law we must see what are the facts, and what is the business view of the transaction." 7

1 Spalding v. Ruding, 6 Beav. 376; 12 L. J. Ch. 503; 15 L. J. Ch. 374 (1843).

2 Missouri Pac. Ry. v. Heidenheimer, 82 Tex. 195; 17 S. W. 608 (1891). 3 Matter of Westzinthus, supra.

4 Ex parte Golding, Davis, & Co., 13 Ch. D. 628 (1880). The doctrine of this case has been criticised (Chalmers' Sale of Goods, 2d ed. 87), but the critics have not answered Lord Bramwell's question, "What difference is there in principle between the case of a man selling goods on credit for £500, and these being then resold for £600, and the case of the purchaser pledging the goods for £600, with a right of sale by the pledgee?" Ex parte Falk, 14 Ch. D. 446, 457 (1880).

5 Hause v.

Judson, 4 Dana (34 Ky.), 7, 13 (1836).

• Berndtson v. Strang, L. R. 3 Ch. App. 588, 591; 37 L. J. Ch. 675 (1868). 7 Ex parte Miles, 15 Q. B. D. 39, 43 (1884).

We ought not to be surprised, therefore, to find different courts reaching opposite conclusions in cases which appear strikingly similar. A careful comparison of such decisions will show that the disagreement is due, not to conflicting views of the law, but to divergent inferences from the facts. In truth, the legal principles involved are simple and well established. They have never been stated more clearly and concisely than by Lord Esher in the following passage from a recent decision: "The doctrine of stoppage in transitu has always been construed favorably to the unpaid vendor. The rule as to its application has been often stated. When the goods have not been delivered to the purchaser or to any agent of his to hold for him otherwise than as a carrier, but are still in the hands of the carrier as such and for the purposes of the transit, then, although such carrier was the purchaser's agent to accept delivery so as to pass the property, nevertheless the goods are in transitu, and may be stopped. There has been a difficulty in some cases where the question was whether the original transit was at an end, and a fresh transit had begun. The way in which that question has been dealt with is this: when the transit is a transit which has been caused either by the terms of the contract or by the directions of the purchaser to the vendor, the right of stoppage in transitu exists; but if the goods are not in the hands of a carrier by reason either of the terms of the contract or of the directions of the purchaser to the vendor, but are in transitu afterwards, in consequence of fresh directions given by the purchaser for a new transit, then such transit is no part of the original transit, and the right to stop is gone. So, also, if the purchaser gives orders that the goods shall be sent to a particular place, there to be kept till he gives fresh orders as to their destination to a new carrier, the original transit is at an end when they have reached that place, and any further transit is a fresh and dependent transit."

407. Applying the foregoing principles to the case then before the court, it was decided that, although the contract of

1 Bethell v. Clark, 20 Q. B. D. 615 (1888); Burdick's Cases on Sales,

sale did not designate the transit, the subsequent directions given by the vendees to the vendors, to consign the goods "to the Darling Downs, to Melbourne, loading in the East India docks," defined the original transit as extending from the seller's place of business to Melbourne.

On the other hand, if merchants in New York order goods from merchants in Berlin, Germany, but direct that they shall be sent to the vendees' agents at Bremen "at our" (the vendees') "disposition," the original transit ends with their delivery to the Bremen agents. It ends, also, when the vendee, to whom the goods have been invoiced and billed, surrenders the bill of lading to the carrier and has them rebilled to a purchaser from him.2

408. Transit continues until the Goods come to Buyer's Possession. It is to be borne in mind that the goods are in transit, so long as they are in the hands of a middleman on their way from the vendor to the vendee. They may have reached the port or the station to which they were consigned, but unless they have been delivered to the purchaser, they are still in transitu. Even "the unloading of the goods and the placing of them in the warehouse of the railroad company does not necessarily terminate the transitus, nor put an end to the right of stoppage; so long as they remain in the hands of the carrier or middleman as such, the right does not cease." 4 "This right continues not only while the goods are in actual transit, but until they have reached their destination and are delivered into the actual or constructive possession of the consignee." 5

1 Becker v. Hallgarten, 86 N. Y. 167 (1881); Burdick's Cases on Sales, 609; Brooke Iron Co. v. O'Brien, 135 Mass. 442 (1883).

2 In re W. A. Patterson Co., 186 Fed. 629; 108 C. C. A. 493 (1911). Kemp v. Falk, 7 App. Cas. 573, 588; 52 L. J. Ch. 167 (1882); Burdick's Cases on Sales, 599; McFetridge v. Piper, 40 Ia. 627 (1875); In re Talbot & Poggi, 185 Fed. 986 (1911); Frame v. Oregon Liquor Co., 48 Ore. 272; 87 Pac. 1009 (1906).

Symns v. Schotten, 35 Kan. 310, 313, 314; 10 Pac. 828 (1886); Burdick's Cases on Sales, 604; Brewer L. Co. v. Bos. & A. Ry., 179 Mass. 228; 60 N. E. 548; 88 Am. St. R. 375, with note (1901).

5 Harris v. Tenney, 85 Tex. 254, 258; 20 S. W. 68 (1892); Uniform Sales Act, § 58 (2), (b).

Undoubtedly, by a previous course of dealing or by express agreement, the carrier and purchaser may treat a deposit of the goods at a particular place as a delivery to the purchaser and an end of the transit. On the other hand, if the purchaser refuses to take delivery of the goods, when they reach their original destination, although without just excuse, the transit continues. If his refusal is due to his unwillingness to defeat the vendor's right of stoppage, the courts will not only treat it as preventing a delivery, but will applaud the actor.

409. Deposit of Goods in Bonded Warehouses. — Goods, upon their arrival at a particular port or station, are often deposited in a government warehouse, subject to revenue dues, instead of being delivered at the buyer's place of business. Whether such a deposit determines the right of stoppage in transitu depends upon whether it marks the completion of the vendor's obligation of delivery. If they are deposited in the name of the seller, and are awaiting further transportation to be directed by him, the right of stoppage continues. The same result follows if they are deposited by government officers, and the buyer cannot show authority from the seller to have them deposited as his property. But if they are rightfully deposited by or on behalf of the buyer, after a delivery to him, although the delivery is subject to the government restraint that he shall not take them away until the revenue dues are paid, the transit is at end and the right of stoppage is determined."

1 Sawyer v. Joslin, 20 Vt. 172 (1848); Hall v. Dimond, 63 N. H. 565; 3 At. 423 (1885).

2 In Ex parte Miles, 15 Q. B. D. 39, 43, the Master of the Rolls declared, "Destination means sending the goods to a particular person who is to receive them, and not sending them to a particular place without saying to whom."

Bolton v. Railway, L. R. 1 C. P. 430, 440 (1866); Burdick's Cases on Sales, 616 n.; Greve v. Dunham, 60 Ia. 108; 14 N. W. 130 (1882); Uniform Sales Act, § 58 (1), (b).

4 Mason v. Wilson, 43 Ark. 172, 177 (1884); Tufts v. Sylvester, 79 Me. 213; 9 At. 357 (1887); Burdick's Cases on Sales, 612; Kingman v. Denison, 84 Mich. 608; 48 N. W. 26 (1891); Burdick's Cases on Sales, 613. See Millard v. Webster, 54 Conn. 415 (1887), contra.

Mohr v. Boston Railway, 106 Mass. 67 (1870).

Donath v. Broomhead, 7 Pa. St. 301 (1847).

' Cartwright v. Wilmerding, 24 N. Y. 521, 536 (1862); Lewis v. Mason,

409 (a). Carrier's Wrongful Refusal to deliver; Delivery of a Part. While there is but little judicial authority on the topic, the Uniform Sales Act follows the Sale of Goods Act in declaring that the transit of goods cannot be prolonged by the carrier's wrongful refusal to deliver the goods to the buyer. These statutes also agree that a part delivery of goods will not prevent a stoppage of the remainder, “unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods." 3

410. Exercising the Right of Stoppage. As the right is greatly favored by the courts, they have never required the vendor to adopt any particular form of procedure in exercising it. He may accomplish his purpose by taking actual possession of the goods, or by changing their consignment, or by giving notice of his claim to the carrier or other bailee in possession. His notice of claim need not state his reason for stopping the goods, nor refer to the facts on which the claim rests. Nor is it necessary that it contain "an express demand to redeliver the goods. . . . If the carrier is clearly informed that it is the intention and desire of the vendor to exercise his right of stoppage in transitu, the notice is sufficient." 8

411. Notice to Others than Carrier. The notice may be effectively given to an officer who has taken the goods from the carrier under process against the buyer, or to the principal of the person who is conveying them. "In the latter

36 Up. Can. Q. B. 590 (1875); Wiley v. Smith, 2 Duval (Can.), 1 (1877).

1 56 & 57 Vict. ch. 71, § 45 (6); Mass. L. 1908, ch. 237, § 58 (2), (c); Bird v. Brown, 4 Exch. 786, 790; 19 L. J. Ex. 154 (1850).

2 Ibid. §§ 45 (7) and 58 (4).

Following Kemp v. Falk, 7 App. Cas. 573, 586; 52 L. J. Ch. 167 (1882); Jeffris v. Fitchburg Ry., 93 Wis. 250, 261; 67 N. W. 424; 33 L. R. A. 351; 57 Am. St. R. 919 (1896).

• Sale of Goods Act, § 46 (1); Uniform Sales Act, § 59 (1).

5 Wiseman v. Vandeputt, 2 Vern. 203 (1690); Burdick's Cases on Sales, 590.

Litt v. Cowley, 7 Taunt. 169 (1816).

7 Allen v. Railroad, 79 Me. 327; 9 At. 895 (1887).

8 Jones v. Earl, 37 Cal. 630, 632 (1869); Burdick's Cases on Sales, 616. • Rucker v. Donovan, 13 Kan. 251 (1874).