note nor did he inspect the goods, but he endeavoured, without success, to resell the goods by means of a sample which had been supplied to him by Barnard Brothers. Sanders having committed an act of bankruptcy, and not having paid Barnard Brothers, the latter stopped delivery, and the company redelivered the goods to them. In an action by the plaintiff, as trustee in the bankruptcy of Sanders, against the railway company for damages for conversion, it was held, by Bigham, J., that the transit was at an end, and that the company were liable in damages for conversion. Those cases decided under the Statute of Frauds (a) as to what amounts to an actual receipt may have some bearing on this subject. They are not cases of stoppage in transitu, but are authorities to show under what circumstances the goods have been held to have been delivered to the buyer. In none of these cases of stoppage in transitu, it may be observed, was there any doubt as to the law; the question was one of fact, viz., in what capacity did the different agents hold possession, whether as agent to forward, or as agent to hold for the buyer? This question becomes still more difficult to answer where the party holding the goods acts in two capacities, as, for instance, a carrier, who also acts as a warehouseman, and who may, therefore, have goods in his warehouse either as a place of deposit connected with the carriage, or as a place of deposit subject to the orders of the buyer; or a wharfinger, who sometimes receives the goods as agent to the shipowner and sometimes as agent to the consignee. In all such cases as the leading fact, viz., the possession of the goods, is in itself ambiguous, it is necessary to gather the intention of the parties from their minor acts. As was before stated, if the possessor of the goods has the intention to hold them for the buyer, and not as an agent to forward, and the buyer intends the possessor so to hold them for him, the transitus is at an end; but it is apprehended that both these intents must concur, and that neither can the carrier of his own will convert himself into a warehouseman, (a) Ante, p. 26. so as to terminate the transitus, without the agreeing mind of the buyer: James v. Griffin (a), nor can the buyer change the capacity in which the carrier holds possession without his assent, at least until the carrier has no right whatsoever to retain possession against the buyer: Jackson v. Nichol (b). These principles are adopted by the Sale of Goods Act, which enacts in section 45: "(3.) If, after the arrival of the goods at the appointed "destination, the carrier or other bailee (or custodier) acknow"ledges to the buyer or his agent, that he holds the goods on "his behalf and continues in possession of them as bailee or "custodier for the buyer, or his agent, the transit is at an end, and it is immaterial that a further destination for the "goods may have been indicated by the buyer. 66 "(4.) If the goods are rejected by the buyer, and the "carrier or other bailee (or custodier) continues in possession "of them, the transit is not deemed to be at end, even if the "seller has refused to receive them back." In Rowe v. Pickford (e), in 1817, a trader in London was in the habit of purchasing goods at Manchester, and of exporting them to the Continent soon after their arrival in London. He had no warehouse in London, and the goods consigned to him usually remained in the waggon office of the defendants, who were carriers, until they were removed for the purpose of being shipped. A parcel of goods lying at the office at the time of the buyer's bankruptcy was held to be no longer in transitu. And this is more clearly the case where the buyer has dealt with the goods lying in the carrier's warehouse as his own (d). In James v. Griffin (a), in 1837, the bankrupt had often used Beale's wharf as his warehouse for lead. Being in insolvent circumstances, he did not wish to accept a cargo lead purchased by him, but not paid for; but in order to set (a) James v. Griffin, 2 M. & W. 623. (b) Jackson v. Nichol, 5 Bing. N. C. 508. of the ship free, he told the captain to land it on Beale's wharf. He intended this not to be a delivery to himself, but he did not communicate his intention to the wharfingers, and they seem to have considered themselves as agents to hold possession for him; then the goods were stopped. The Court of Exchequer all agreed that the question was, whether the possession of Beale's wharfingers was the possession of the bankrupt or not; but Lord Abinger thought that the intention in the bankrupt's mind not being expressed to the wharfingers was quite immaterial, and that the transitus was at an end. Parke, Bolland, and Alderson, BB., held that, except as a test of its reality, it did not matter whether he communicated the intention or not, and the transitus was by them held to continue. In that case the holder of the goods meant to hold them for the buyer; but that did not render his possession the constructive possession of the buyer, because the buyer's assent was wanting. In Jobson v. Eppenheim and Co. (a), in 1905, the plaintiff sold ten tons of waggon brass to the defendants ex York stores to be forwarded to the Co-operative Wholesale Society at Goole. The defendants informed the Co-operative Society, who were shipping agents, that they would receive the brass and forward it per steamer to Hamburg. The plaintiff sent the goods to Goole, where they were received by the Co-operative Society and forwarded to Hamburg. When the goods arrived at Hamburg, the plaintiff, who was unpaid, telegraphed to the Co-operative Society's branch at that city instructions not to deliver. Held, that the transit ended at Goole when the goods were received there by the Co-operative Society as agents for the defendants. In Heinekey v. Earl (b), in 1857, the plaintiff had consigned hemp to Horn in Sunderland, where it arrived on the 2nd of February, and Horn, finding himself insolvent, and being anxious not to receive the hemp, on the following day instructed his manager to go to the wharf where the hemp (a) Jobson v. Eppenheim and Co., 21 T. L. R. 468. was lying and countermand the delivery. The hemp, notwithstanding these instructions, was delivered at Horn's works during his absence, and Horn stopped payment in the evening. He consulted a solicitor as to whether he could return the hemp, and was advised he could not do so. On the 6th the seller demanded the hemp from Horn. It was held, reluctantly, by the Court of Queen's Bench, and the judgment was affirmed in the Exchequer Chamber, that although the goods had not ceased to be in transitu, merely because they were on Horn's premises, yet the transitus had ceased under the circumstances, Horn having assented to their remaining there before the 6th, the date when the plaintiffs demanded them. In the case of Bolton v. The Lancashire and Yorkshire Railway Co. (a), in 1866, both the seller and the buyer repudiated the ownership of certain goods lying at a station on the defendants' line, until the buyer became bankrupt, when his assignee made a claim to them. The real question was, whether the company held the goods as the bailee of the buyer, or merely as an agent to forward. Parsons had purchased eleven skips of cotton twist from Wolstencroft, and after taking three of them declined to receive any more. Wolstencroft sent the remaining eight to Brierly, a station on the defendants' line, and instructed the defendants to deliver them to Parsons. Parsons' carter took four of them away by mistake, and Parsons returned them at once, and then consigned the whole eight back to Wolstencroft at Salford; but Wolstencroft refused to receive them, and sent them to Brierly a second time, where Parsons again refused to have anything to do with them. Subsequently Wolstencroft instructed the railway company not to deliver the goods to Parsons, and obtained possession of them. The Court held that Wolstencroft had effectually stopped the goods. Erle, C. J., said, "As to the four which were taken by the carman "to his mill, they were so taken without his orders, and 'against his will; it was just the same as if they had been 66 (a) Bolton v. Lancs, and Yorks, Ry. Co., 36 L. J. Ch. 361 ; L. R. 1 C. P. 431. "carried by a wrong-doer. It was urged by Mr. Holker, "that, being repudiated by both parties to the contract, the goods remained in the hands of the railway company as warehouseman for the real owner, that is, for Parsons. "There is no doubt but that the carrier may and often does "become a warehouseman for the consignee; but that must "be by virtue of some contract or course of dealing between "them, that, when arrived at their destination, the character "of carrier shall cease, and that of warehouseman supervene. "Here, however, there is no evidence of any such contract or "course of dealing." In Jackson v. Nichol (a), in 1839, the bankrupt repeatedly demanded the goods from the holders before any stoppage in transitu, but they refused to give them up, and the Court of Common Pleas held that the goods had not come to the possession of the bankrupt. There the assent of the actual holder was wanting, and it seems to have been the only thing wanting to put an end to the transitus. So also in Lackington v. Atherton (b), in 1844, where the buyer before his insolvency demanded the goods from the warehousemen, but they refused to deliver them on account of an informality in the delivery order, the Common Pleas held that there was no possession taken by the purchaser so as to determine the seller's rights. In that case, had the warehousemen assented to the informal delivery order, they would have given possession to the buyer; and the case, therefore, seems the converse of James v. Griffin (c), as in the one case the bailee of the goods meant to hold them for the buyer, who did not assent, and in the other the buyer required the bailee to hold them for him, but the bailee did not assent. The agent to forward may very well agree to hold the goods as an agent to keep the goods, without thereby abandoning any lien which he may have in the capacity of carrier, (a) Jackson v. Nichol, 5 Bing. N. C. 508, ante, p. 395. (b) Lackington v. Atherton, 13 L. J. C. P. 140; 8 Scott, N. S. 38; 7 M. & G. 360. (c) James v. Griffin, 2 M. & W. 624, ante, p. 395. |