name in the wharfinger's books as importer, where they lay under a stop for unpaid freight.

On the 4th of March Abraham obtained the bill of lading from the Chartered Bank, giving his cheque for it (a), and pledged it with the plaintiffs for an advance of 2,500l., the plaintiffs asked for the "other" copy, and Abraham promised to send it to them, and did send the second copy later on. On the 6th and 7th of May he pledged the third copy with the defendants, who subsequently obtained possession of the cotton. Both the plaintiffs and the defendants were pledgees for value without any notice of Abraham's fraud. One question was whether there could be a valid pledge of goods lying in a warehouse where the pledgee neither obtained a warrant nor actual delivery (b). The plaintiffs obtained a verdict, and the Court of Common Pleas held that the bill of lading held by the plaintiffs was the symbol of property in the cotton, and its delivery to the plaintiffs operated as a delivery of the cotton itself. Erle, C. J., said the bill of lading at the date of the first pledge was not extinct, for although the cotton had been landed, it had not been delivered according to the bill of lading, and "if Abraham had given a delivery order "without the bill of lading, the wharfinger, as I read the "evidence, would not have obeyed it but would have with"held the cotton until the bill of lading was produced." Willes, J., said: "I think the bill of lading remains in force "at least so long as complete delivery of possession of the 'goods has not been made to some person having a right to "claim them under it." This judgment was affirmed in the Court of Exchequer Chamber and in the House of Lords, where Lord Westbury's judgment is highly instructive. said (c): "There can be no doubt, therefore, that the first person who for value gets the transfer of a bill of lading, though it be only one of a set of three bills, acquires the "property; and all subsequent dealings with the other two "bills must in law be subordinate to that first one, and for

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(a) See 2 C. P. 47.

(b) See Willes, J.'s judgment, 36 L. J. C. P. 57 ; L. R. 2 C. P. 52.
(c) 39 L. J. C. P. 195; 4 E. & I. App. 335.

He

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"this reason, because the property is in the person who first "gets a transfer of the bill of lading. It might possibly happen that the shipowner having no notice of the dealing "with the bill of lading, may, on the second bill being presented by another party, be justified in delivering the goods to that party. But although that may be a discharge to the shipowner, it will in no respect affect the legal ownership of the goods, for the legal ownership of the "goods must still remain in the first holder for value of "the bill of lading, because he had the legal right in the "property."

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On the subject of the carrier's liability see the judgment of Dr. Lushington in the Tigress (a), which Mr. Benjamin seems to consider doubtful law (b), and the remarks of Lord Westbury in the case of Meyerstein v. Barber (c).

In Glyn, Mills and Co. v. The East and West India Dock Co. (d), in the House of Lords in 1882, Cottam, Morton and Co., as consignees of sugar and holders of the bill of lading in three parts, making the sugar deliverable to themselves or their assigns, applied to and obtained from the plaintiffs an advance on depositing as security the first of the set of bills. The sugar arrived, and Cottam, Morton and Co. entered the goods at the Custom House, and the captain landed the goods with the defendants under a stop for freight. Cottam and Co. handed the defendants another of the set of bills, and the defendants then entered the sugar in their books in the name of Cottam and Co. The freight was subsequently paid, and Williams and Co. obtained possession of the sugar under an order from Cottam and Co. Cottam and Co. then became insolvent, and this action was brought by the plaintiffs as indorsees for value for an alleged conversion of the goods. The case was tried before Field, J. (e), in 1880, who gave a judgment for the plaintiffs which was reversed by the

(a) The Tigress, 32 L. J. Ad. 97.

(b) Benjamin on Sale, 5th ed., p. 912.

(c) Meyerstein v. Barber, 39 L. J. C. P. 195; 4 E. & I. App. 336.

(d) Glyn v. The East and West India Dock Co., 49 L. J. Q. B. 303; 50 L. J. Q. B. 62; 52 L. J. Q. B. 146; 5 Q. B. D. 129; 6 Q. B. D. 475; 7 App. Ca. 591. (e) 49 L. J. Q. B. 303; 5 Q, B. D. 129.

majority of Judges in the Court of Appeal (a), Brett, L. J., being of opinion that that judgment should be affirmed, Bramwell and Baggallay, L. JJ., being of a contrary opinion. And the House of Lords (b) affirmed the Court of Appeal. Bramwell, L. J., said, "In my opinion, in such cases as these "as a rule, where there are no special circumstances, a ware"houseman receives the goods from the ship or ship's captain "on the terms of holding them for the ship till the freight is 'paid, and then and thenceforth of holding them to deliver "to such person as the shipowner or captain would have been "justified in delivering them to under the bill of lading. "This is Mr. Justice Willes' opinion in Meyerstein v. Barber (c): "... I cannot think that the warehouseman undertakes a "different duty to that of the shipowner. . . Then would "the captain of the ship have been justified in delivering "these goods to Cottam and Co. on production of their bill of "lading and tender of the freight? I cannot bring myself to say he would not."

The view taken by Brett, L. J., was that the defendant held the goods for, and was bound to deliver the goods to the real owner, the holder of the bill of lading, i.e., the plaintiffs.

Lord Cairns said: "The dock company are under no higher "liability than the shipowner himself would have been, and "on the other hand, they are not under any lower or less "liability." This also was the view of Lord Blackburn, who added that the captain's contract is to deliver to the assignee, not of the goods, but of the bill of lading.

(a) 50 L. J. Q. B. 62 ; 6 Q. B. D. 475.

(b) 52 L. J. Q. B. 146; 7 App. Ca. 591.

(c) Meyerstein v. Barber, 36 L. J. C. P. 56; L. R. 2 C. P. 49.

Transitus not ended where goods in carrier's freight sheds. Right to stop not defeated by filing claim with assignee. Duty paid by assignee. In Morgan Envelope Co. v. Boustead, 7 O. R. 697, the goods had been consigned to James Campbell & Son, Toronto, and while they were held. by the railway company the consignees assigned to the defendant, who, immediately after the assignment, passed and entered the goods and paid the duty thereon. The railway company had removed the goods from the customs warehouse to their freight sheds, where they remained. Delivery was refused to the defendant for non-production by him of a bill of lading, and the freight was not paid or tendered. The plaintiffs stopped the goods in transitu, but before doing so had proved their claim for the goods on the estate of James Campbell & Son. Per Armour, J.: "The entry of the goods at the custom house, and the pay"ment of the duties thereon by the defendant, had no "effect whatever upon the possession of them by the rail"way company, but only released them from the exercise "of the powers and authorities to which they had before "been subject," (the powers and authorities exercisable by the officers of the customs), " and enabled the railway company to unload them and deal with them." They still remained in the hands of the railway company, as carriers.

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As to the effect of the proof against the estate, Armour, J., explained that "the true nature and effect of the stoppage in transitu is merely to restore the goods to the "possession of the seller, so as to enable him to exercise "his rights as an unpaid vendor, not to rescind the sale; "and I think, therefore, the plaintiffs were justified in proving their claim for the price of them, and that at all events it did not prejudice their right to stop the goods "in transitu."

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Stoppage in transitu does not revest property. This has been so clearly settled that it its perhaps superfluous to refer to the Canadian cases in point. In Childs v. Northern Railway of Canada, 25 U. C. Q. B. 165, in which the right of stoppage in transitu was upheld, it was nevertheless decided that the unpaid vendor had not the right of property and possession necessary to maintain trover against

the railway company. "This right in the vendor to with"hold the goods from his vendee, who, by payment, would "have an immediate right to the possession as being al"ready the owner by sale and delivery to the carrier, is a very different thing from the right of property and possession which is asserted in the action of trover."*

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As the stopper in transitu is merely asserting a claim for the unpaid price, if there is no unpaid price, he cannot stop the goods, and his attempt to stop must be ineffectual, no matter how timely and regular in every other regard. This seems to be the real state of the case of McDonald v McPherson, 12 S. C. R. 416, in which there was a dissenting opinion, both in the Supreme Court of Nova Scotia and the Supreme Court of Canada. The consignor was heavily indebted to the consignee, and had shipped goods directed to him on account of the advances by the consignee. The bill of lading made the goods deliverable to the railway agent at Pictou, and was not by him endorsed, but it was endorsed by the consignee to the plaintiff for accommodation acceptances. The consignor notified the railway agent at Pictou to stop the goods, and he in turn notified the agent at Halifax; but he took no further interest in the matter and set up no right. It was held that the plaintiff was entitled to the goods, and the defendant, the railway agent at Halifax, was a mere wrong-doer.

Sufficiency of the notice to stop in transitu. The notice to the carrier, in order to be effective as a stoppage in transitu, should be sufficiently specific. In Clementson et al v. Grand Trunk Railway, 42 U. C. R. 263, it was in these terms: Do not deliver earthenware from our English "house to W. B. Palmer & Co. Hold to our order." At that time Palmer & Co. had about four hundred pieces of goods in the warehouse of the railway company at Hamilton, and the plaintiffs' names were not on any of the papers in defendants' possession, nor were the packages so marked that they could be identified. The notice" did "not specify the goods by marks, numbers, or otherwise. "The name of Clementson & Co. did not appear in the bill "of lading or in any of the documents which were in the possession of the defendants; and if they were bound

* See, however, page 415, ante, last paragraph; also note on page 446e.