before an appropriation of the proceeds or an adjudication of the rights of the parties. And it has been held that the filing of a claim in an attachment case to the fund in court arising from the sale of the goods under an interlocutory order of court is a sufficient exercise by the seller of the right of stoppage. If, however, the officer pays the freight charges to the carrier he is subrogated to the carrier's rights in this respect and will be entitled to retain the possession until such charges are repaid. In such a case the carrier's possession could not have been disturbed until the freight charges were paid and therefore the officer was justified in paying them.8

408. Assignee for Creditors or in Bankruptcy.-A general assignment by the buyer for the benefit of his creditors does not affect the seller's right of stoppage, but if the right is not exercised before delivery to the assignee the title vests in the assignee free from any claim of the seller based on his right of stoppage.10 The assignee may refuse to accept the goods and thus enable the seller to exercise his right, and it would seem that the buyer could before the assignment refuse to accept and thus in effect exercise the right for the seller and deprive his assignee of any right to take possession; and a fortiori his refusal to accept will enable the seller to exercise his right in case the assignee has not prior thereto acquired the possession.11 A messenger appointed for an insolvent buyer cannot receive goods so as to terminate the right of stoppage in transitu; he acts in a passive capacity merely as custodian, until an assignee is appointed, and has no more authority ex officio than a carrier or middleman. Therefore while the goods are in his hands the right may be exercised.1o An adjudication of bankruptcy against the buyer while the goods are in transit does not defeat the seller's right of stoppage, but if the assignee in bankruptcy takes possession, thus ending the transitus before the right of stoppage is exercised, he may hold the goods as against the seller whose right of stoppage terminated with the transitus.18 On the other hand if the right has been duly exercised by the seller before

6. Hause v. Judson, 4 Dana (Ky.) 7, 29 Am. Dec. 377; O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284.

7. O'Brien v. Norris, 16 Md. 122, 77 Am. Dec. 284.

8. Rucker v. Donovan, 13 Kan. 251, 19 Am. Rep. 84.

9. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17; Johnson v. Eveleth, 93 Me. 306, 45 Atl. 35, 48 L.R.A. 50; Brewer Lumber Co. v. Boston, etc., R. Co., 179 Mass. 228, 60 N. E. 548, 88 A. S. R. 375, 54 L.R.A. 435; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188. 10. McElroy v. Seery, 61 Md. 389,

48 Am. Rep. 110.

11. Tufts v. Sylvester, 79 Me. 213, 9 Atl. 357, 1 A. S. R. 303. See also Naylor v. Dennie, 8 Pick. (Mass.) 198, 19 Am. Dec. 319.

Notes: 19 Am. Dec. 92; 29 Am. Dec. 392; 1 A. S. R. 314.

12. Tufts v. Sylvester, 79 Me. 213, 9 Atl. 357, 1 A. S. R. 303.

13. Ellis v. Hunt, 3 T. R. 464, 1 Rev. Rep. 743, 23 Eng. Rul. Cas. 416; Bird v. Brown, 4 Exch. 786, 19 L. J. Exch. 154, 14 Jur. 132, 23 Eng. Rul. Cas. 422.

the transit was ended, the fact that the goods subsequently come into the hands of the buyer's assignee in bankruptcy will not affect the right of the seller to recover their possession.14

40 Resale Generally.-A sale for a valuable consideration, unaccompanied by a transfer of the bill of lading, or other documents of title, although quite sufficient to pass the property in the goods, will not affect the right of the seller to stop them in transitu.15 In such a case it is said that the absence of the bill of lading is considered as constructive notice that the buyer has not paid for the goods, and that the seller has not waived his right of resuming his lien for the purchase money.16 This is especially true if the sale was made in anticipation of the shipment and before the shipment was in fact made; 17 and a fortiori the right will not be defeated by an apparent sale, fraudulently made, without consideration, for the purpose of defeating the right.18 Where the carrier issues to the buyer a receipt for the freight and wharfage it has been held that the right of stoppage could be exercised as against a purchaser for value taking a transfer of such receipts, if exercised before delivery of the goods to the purchaser, as such a receipt is not on the same basis as a bill of lading 19 Where the buyer handed over the bill of lading, without indorsement, however, to a creditor in payment of an antecedent debt and gave him an order on the carrier for the delivery of the goods, and the carrier on the presentation of such order promised to reship the goods as directed, giving him a receipt to such effect, it was held that there was not such a termination of the transit as to deprive the seller of his right of stoppage in transitu.20 And it has been held that where the buyer without having acquired possession of lumber sells it to the carrier, in consideration of the freight due thereon and other existing indebtedness, this does not terminate the transit and the seller may nevertheless exercise his right of stoppage as against any claim of the carrier

14. Litt v. Cowley, 7 Taunt. 169, 17 Rev. Rep. 482, 23 Eng. Rul. Cas. 411. 15. Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. 707, 30 A. S. R. 164; Pattison v. Culton, 33 Ind. 240, 5 Am. Rep. 199; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188; Ex parte Davis, 13 Ch. D. 628, 42 L. T. N. S. 270, 47 W. R. 481, 4 Eng. Rul. Cas. 851; Dixon v. Yates, 5 B. & Ad. 313, 27 E. C. L. 86, 39 Rev. Rep. 489, 23 Eng. Rul. Cas. 385; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 47 L. T. N. S. 454, 31 W. R. 125, 23 Eng. Rul. Cas. 399.

R. 363; 23 Eng. Rul. Cas. 433.

16. Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188.

17. Ilsley v. Stubbs, 9 Mass. 65, 6 Am. Dec. 29.

18. Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347.

19. Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. 707, 30 A. S. R. 164. As to the rights of a transferee of the bill of lading, see the following paragraph.

20. Branan v. Atlantic, etc., R. Co., 108 Ga. 70, 33 S. E. 836, 75 A. S. R.

Notes: 29 Am. Dec. 393; 105 A. S. 26.

as a purchaser. It has also been held that the right is not lost where goods consigned are never received by the buyer, but are received by his mortgagees, who are in possession of his store when the goods arrive, although they have a mortgage covering after acquired property and sell the goods under it, the mortgagees themselves becoming the purchasers.2

410. Transfer of Bill of Lading or Other Documents of Title.—If the seller has taken a bill of lading in the name of the buyer, or has transferred to him a bill of lading taken in his own name and negotiable in form, a transfer of such bill of lading by the buyer to a bona fide purchaser for value, even though the goods are in transit, will defeat the right of the seller to stop the goods, and the transfer of the bill of lading, by way of pledge or as collateral security for a loan, though it does not absolutely defeat the seller's right of stoppage, does prevent him from asserting that right as against the transferee, until the debt secured by the transfer has been discharged. The right of the transferee of the bill of lading is not affected by the fact that the transfer was not made until after the seller had notified the carrier of the exercise of his right of stoppage, the goods being still in transit at the time of the transfer. Where two bills of lading, one marked "original" and the other "duplicate," are issued by the carrier for the same goods, it has been held that they are of equal value, and the transfer by indorsement of the one marked "duplicate" by the consignee defeats the seller's right of stoppage.

1. Wheeling, etc., R. Co. v. Koontz, 61 Ohio St. 551, 56 N. E. 471, 76 A. S. R. 435.

2. Kingman v. Denison, 84 Mich. 608, 48 N. W. 26, 22 A. S. R. 711, 11 L.R.A. 347.

3. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17; Newhall v. Central Pac. R. Co., 51 Cal. 345, 21 Am. Rep. 713; Ocean Steamship Co. v. Ehrlich, 88 Ga. 502, 14 S. E. 707, 30 A. S. R. 164; Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439; Hurd v. Bickford, 85 Me. 217, 27 Atl. 107, 35 A. S. R. 353; National Bank v. Baltimore, etc., R. Co., 99 Md. 661, 59 Atl. 134, 105 A. S. R. 321; Emery v. Irving Nat. Bank, 25 Ohio St. 360, 18 Am. Rep. 299; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188; Missouri Pac. Ry. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 A. S. R. 861; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 47 L. T. N. S. 454, 31 W. R. 125,

So where a seller

23 Eng. Rul. Cas. 399; In re Westzinthus, 5 B. & Ad. 817, 27 E. C. L. 201, 4 Eng. Rul. Cas. 845. See also Spring v. South Carolina Ins. Co., 8 Wheat. 268, 5 U. S. (L. ed.) 614.

Notes: 29 Am. Dec. 392; 19 Am. Rep. 91; 105 A. S. R. 362; 11 L.R.A. 349; 23 Eng. Rul. Cas. 432.

4. In re Westzinthus, 5 B. & Ad. 817, 27 E. C. L. 201, 4 Eng. Rul. Cas. 845; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 47 L. T. N. S. 454, 31 W. R. 125, 23 Eng. Rul. Cas. 399. Note: 23 Eng. Rul. Cas. 433. 5. Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27 A. S. R. 861; Kemp v. Falk, 7 App. Cas. 573, 52 L. J. Ch. 167, 47 L. T. N. S. 454, 31 W. R. 125, 23 Eng. Rul. Cas. 399.

6. Newhall v. Central Pac. R. Co., 51 Cal. 345, 21 Am. Rep. 713.

7. Missouri Pac. R. Co. v. Heidenheimer, 82 Tex. 195, 17 S. W. 608, 27

delivered to the buyer a bill of parcels for goods lying in a public store, together with an order on the storekeeper for their delivery, it has been held that the seller had not the right of stoppage in transitu against a person purchasing bona fide for a valuable consideration.s The right of a bona fide transferee for value of the bill of lading or other documents of title is recognized in the Sale of Goods Acts.

411. Who Are Bona Fide Transferees for Value.-To entitle the transferee of the bill of lading to protection he must be a bona fide purchaser for value; if he has notice that the goods have not been paid for and that the buyer is insolvent he is not entitled to protection." Though there is authority to the contrary, 10 it is the better view that one taking the bill of lading in satisfaction of or as security for a preexisting debt is not a purchaser for value and as such entitled to protection as against the seller's right of stoppage.11 But it has been held that it is not necessary that the transferee be ignorant of the fact that the goods have not been paid for; and if he takes bona fide, without a knowledge of any such circumstances as would render the bill of lading not fairly and honestly assignable, he acquires a good title as against the consignor.12 The subpurchaser's knowledge of the insolvency of the buyer bears materially on the question of his good faith.13

412. When Goods Considered in Transitu Generally.-It is obvious that there can be no transitus, and therefore no stoppage in transitu, without the interposition of a middleman between the seller and buyer. The beginning of the transit is when the goods are delivered to the middleman for carriage to the buyer, the middleman being the quasi agent of the seller for the purpose of delivery.14 The question as to whether goods sold are to be deemed in transit while being transported seems to rest on the further question whether there has been an absolute delivery to the buyer without the contemplation of any further delivery on the arrival of the goods at the point of destination.15 As a general rule goods are considered in transitu while they are in the possession of a carrier, whether by land or water, until they arrive at the ultimate place of their destination, and are delivered

A. S. R. 861. As to the execution of bills of lading in duplicate, see generally, BILLS OF LADING, vol. 4, p. 6.

See

8. Hollingsworth v. Napier, 3 Caines (N. Y.) 182, 2 Am. Dec. 268. also Ford v. Sproule, 2 A. K. Marsh. (Ky.) 528, 12 Am. Dec. 439.

9. Ex p. Davis, 13 Ch. D. 628, 42 L. T. N. S. 270, 48 W. R. 481, 4 Eng. Rul. Cas. 851.

Notes: 29 Am. Dec. 392; 23 Eng. Rul. Cas. 433.

- 10. Note: 23 Eng. Rul. Cas. 433.

11. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17.

Note: 29 Am. Dec. 393.

As to who is a purchaser of chattels for value, see infra, par. 668 et seq.

12. Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188.

13. Loeb v. Peters, 63 Ala. 243, 35 Am. Rep. 17.

14. Note: 29 Am. Dec. 387.

15. Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63.

into the actual possession of the buyer,16 and it makes no difference that the carrier has been named or designated by the buyer.17 A delivery to a vessel nominated and hired by the buyer, as carrier, is not such a delivery to the buyer as to defeat the right of stoppage though the ultimate destination of the vessel is not communicated to the seller.18 If the delivery by the seller is to the buyer on wharf and the latter ships them by vessel in his own name, no right of stoppage in transitu exists, the delivery to the buyer in the first instance being absolute.19 In some of the decisions a distinction is made between the case where goods are shipped by vessel to be carried to the buyer's home port and there to be delivered to him and where they are delivered to a ship to be carried for the buyer to a foreign country, thus not contemplating any subsequent actual delivery to the buyer. In the former case it is held that even though the ship is owned by the buyer the goods while being carried to the home port are to be deemed in transit for the purpose of stoppage by the seller,20 whereas in the latter case the delivery to the ship will be deemed an absolute delivery and no right of stoppage will remain to the seller, not only when the ship is owned or chartered by the buyer but even when it is a general ship.1

413. Buyer's Ownership of Means of Conveyance.-There is some disagreement on the point as to whether or not a delivery on board the buyer's own vessel is a delivery to him so as to preclude stoppage in transitu. It has been said that if the buyer sends his own cart or his own ship in charge of one acting under his orders, the goods after being packed in the cart or stored in the ship are not to be deemed in transit, but as having been delivered to the buyer, and no right of stoppage exists. The rule of the English and some of the American cases is, in general, that a delivery on board a ship or other vehicle of the buyer, the seller having knowledge of the fact that it belongs to the buyer, is a delivery to the buyer, to whatever port the goods are consigned, and there is no transitus; and the same rules apply where the vessel has been chartered by the buyer if, by the terms of the charter party, the charterer is owner for the voyage. Still it is gen

16. Parker v. McIver, 1 Desaus. (S. C.) 274, 1 Am. Dec. 656.

Note: 19 Am. Rep. 89.

17. Parker v. McIver, 1 Desaus. (S. C.) 274, 1 Am. Dec. 656; Chandler v. Fulton, 10 Tex. 2, 60 Am. Dec. 188.

Note: 19 Am. Rep. 89. 18. Note: 29 Am. Dec. 388. 19. Note: 19 Am. Rep. 89. 20. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63 and note.

1. Newhall v. Vargas, 13 Me. 93, 29 Am. Dec. 489; Stubbs v. Lund, 7 Mass. 453, 5 Am. Dec. 63. See the following paragraph as to the effect of the buyer's ownership of the means of conveyance generally.

2. Note: 19 Am. Rep. 89.

3. Notes: 29 Am. Dec. 388; 62 L.R.A. 806; 23 Eng. Rul. Cas. 429, 431.

4. Note: 29 Am. Dec. 388.