remain in his possession, for the full amount of the price which remains unpaid. § 98. Same: When lien is lost. "1. The unpaid seller of goods loses his lien thereon: (a) When he delivers the goods to a carrier or other hailee for the purpose of transmission to the buyer without reserving the property in the goods or the right to the possession thereof. (b) When the buyer or his agent lawfully obtains possession of the goods. (c) By waiver thereof. 2. The unpaid seller of goods, having a lien thereon, does not lose his lien by reason only that he has obtained a judgment or decree for the price of the goods" (10). A lien is effectual only while the lien-holder keeps possession. If he voluntarily relinquishes possession, his lien is lost. It may be retained by agreement, and, in that case, the lien is effectual at least between the parties. If the goods are delivered in the case of a sale for cash before the money happens to be paid, the seller may reclaim them if he acts promptly. Where the buyer obtains possession by a trick, the seller does not lose his lien (11). § 99. Stoppage in transitu: Seller may stop goods on buyer's insolvency. "Subject to the provisions of this act, when the buyer of goods is or becomes insolvent, the unpaid seller who has parted with the possession of the goods has the right of stopping them in transit; that is to say, he may resume possession of the goods at any time while they are in transit, and he will then become (10) Sales Act, sec. 56. (11) Ames v. Moir, 130 Ill., 582. entitled to the same rights in regard to the goods which he would have had if he had never parted with the possession" (12). The right of stoppage in transitu is merely an extension of the right of lien which the seller has upon the goods for the price. The property vests in the buyer, upon the sale, but, where the price is to be paid upon delivery, the seller has a right to retain the goods till payment is made; and, where the goods are in the possession of a carrier for transportation to the buyer or to the place of delivery, if the buyer becomes insolvent, the seller may repossess himself of the goods, if he can do so while they are still in the hands of the carrier. This does not rescind the contract, but restores the seller's lien. The buyer may have become insolvent after the sale, or he may have been insolvent at the time of the sale, if that fact were unknown to the seller. As to what constitutes insolvency, the common law rule is expressed in the Sales Act, as follows: "A person is insolvent within the meaning of this act who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due, whether he has committed an act of bankruptcy or not, and whether he is insolvent within the meaning of the federal bankruptcy law or not" (13). It is sufficient, for the exercise of the right of stoppage in transitu, if the buyer is either in fact insolvent or if he has afforded the ordinary apparent evidences of insolvency. The seller (12) Sales Act, sec. 57. (13) Sales Act, sec. 76, Clause 3. T has the right, although he received the buyer's negotiable securities, and even though they have been negotiated and are still outstanding (14). § 100. Same: When goods are in transit. Sales Act. It is provided in the Sales Act: "1. Goods are in transit within the meaning of section fifty-seven (§ 99, above): (a) From the time when they are delivered to a carrier by land or water, or other bailee, for the purpose of transmission to the buyer, until the buyer, or his agent in that behalf, takes delivery of them from such carrier or other bailee. (b) If the goods are rejected by the buyer, and the carrier or other bailee continues in possession of them, even if the seller has refused to receive them back. 2. Goods are no longer in transit within the meaning of section fifty-seven: (a) If the buyer, or his agent in that behalf, obtains delivery of the goods before their arrival at the appointed destination. (b) If, after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer or his agent, that he holds the goods on his behalf and continues in possession of them as bailee for the buyer, or his agent; and it is immaterial that a further destination for the goods may have been indicated by the buyer. (c) If the carrier or other bailee wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf. 3. If goods are delivered to a ship chartered by the buyer, it is a question depending on the circumstances of the particular case whether they are in the possession of the master as a carrier, or as agent of the buyer. 4. If (14) Diem v. Koblitz, 49 Ohio St., 41. part delivery of the goods has been made to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transit, unless such part delivery has been made under such circumstances as to show an agreement with the buyer to give up possession of the whole of the goods" (15). § 101. Same: Illustrations and comment. The seller may exercise his right of stoppage in transitu at any time before the final delivery to the buyer or his agent. It must be some agent other than the carrier, who is, to be sure, the agent of the buyer for transporting the goods, and delivery to whom is taken as delivery to the buyer for the purpose of passing the property in the goods. As long as the goods are in the possession of the carrier, though the goods may be at the destination of the journey, this right exists. If, however, the carrier's possession as such has ceased, and he has become an agent or warehouseman for the buyer, the right is ended; the carrier by agreement holding the goods for the buyer, not as carrier, but as agent or on a new bailment (16). If the original transit has ended and a new transit has begun, by the direction of the buyer, the right no longer exists. "Where the transit is a transit which has been caused either by the terms of the contract or by the direc tions of the purchaser to the vendor, the right of stoppage in transitu exists; but, if the goods are not in the hands of the carrier by reason either of the terms of the contract or of the directions of the purchaser to the vendor, (15) Sales Act, sec. 58. (16) Ex parte Cooper, 11 Ch. D., 68; Guilford v. Smith, 30 Vt., 49. 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 end when they have reached that place, and any further transit is a fresh and independent transit" (17). If the buyer obtains a delivery of the goods at a point before the goods have reached their destination, and before any order to stop is given, the right is ended (18). The right no longer exists where the goods have been taken from the carrier by a truckman, even though the truckman received the goods in accordance with the general authority of the consignee to receive all goods addressed to him (19). § 102. Same: Who may stop goods, and subject to what claims. The right of stoppage in transitu is personal to the seller. It cannot be exercised by his creditors, the property in the goods being in the buyer; but this right of the seller is paramount to any right of creditors of the buyer to attach the goods (20). It is subject to the lien of the carrier for the transportation of the goods, but paramount to any lien of the carrier, by agreement or custom, for a general balance. If part of the goods have been delivered, the carrier may exercise the (17) Bethell v. Clark, 20 Q. B. D., 615. (18) (19) (20) Whitehead v. Anderson, 9 M. & W., 518. Blackman v. Pierce, 23 Cal., 508 |