proceeds of the goods after those claims have been satisfied by realization of the goods. He can also in Equity compel the vendee's creditor to marshal the securities for his debt, so as if possible to protect his rights as unpaid vendor (h).

The valuable consideration for which the indorsement is made may be past (such as a loan already made, or an existing debt), or present (i). The transaction must also be bona fide, or without knowledge of facts that would make the bill of lading not fairly and honestly assignable, such as an open act of insolvency of the consignee or vendee (1), or equities affecting the goods (k). That the indorsee knows that the goods have not been paid for is not sufficient to prevent the indorsement from defeating the right to stop (1).

Note. I have not dealt with the difficult questions arising under the Factors' Acts, because the most important of them appear not to concern the shipowner or charterer in any way. Clause 10 of the Factors' Act, 1889 (52 & 53 Vict. c. 45), substantially reproducing Clause 5 of the Act of 1877 (40 & 41 Vict. c. 39), is specially difficult to construe. It provides that where any "document of title" to goods (as defined in s. 1 of the Act of 1889, including therefore delivery orders and dock warrants), has been lawfully transferred to any person as a buyer or owner of such goods, and such person transfers such document to a person who takes the same bona fide and for valuable consideration, the last-mentioned transfer shall have the same effect for defeating any vendor's lien or right of stoppage in transitu, as the transfer of a bill of lading has for defeating the right of stoppage in transitu.

(h) Kemp v. Falk (1882), 7 App. C. 573; Spalding v. Ruding (1843), 6 Beav. 376, 15 L. J. Ch. 374 on appeal; In re Westzinthus (1833), 5 B. & Ad. 817. See Articles 72, 73.

(i) Leash v. Scott (1877), 2 Q. B. D. 376 (C.A.), dissenting from Rodger v. Comptoir d'Escompte de Paris (1869), L. R. 2 P. C. 393, which held that a past consideration was not suflicient. See also Chartered Bank v. Henderson (1874), L. R. 5 P. C. 501, where the consideration was forbearance to sue for an existing debt; The Emilien Marie (1875), 44 L. J. Adm. 9.

(j) Vertue v. Jewell (1814), 4 Camp. 31; Cumings v. Brown (1807), 9 East, 506; 1 Camp. 104; Salomon v. Nissen (1788); 2 T. R. 674, 681. And see Article 65, and note (t) p. 136.

(k) Such as it was attempted to prove in Henderson v. Comptoir d'Escompte (1873), L. R. 5 P. C. 253; Chartered Bank v. Henderson; The Emilien Marie, vide supra.

(1) Cumings v. Brown, vide supra. As to the effect of dealings with the goods otherwise than by indorsement and transfer of the bill of lading, see ante, Article 59, note 2; Article 66.

Apparently, therefore, where B., a vendee to whom the property in goods in transitu has passed, sells them to C., and gives him a delivery order, and C. in turn transfers such delivery order to D. for valuable consideration, the transfer from C. to D. will defeat the right of stoppage in A., the unpaid vendor.

But:-(1), apart from the Factors' Acts, a delivery order unaccepted by the dock company or warehouseman has never been taken by the Courts of law as a document of title at all, but only as "the token of an authority to receive possession": Farina v. Home (m); M'Ewan v. Smith (n); Griffiths v. Perry (o); -(2), though early in the century mercantile juries seem to have considered delivery orders as documents of title (see Benjamin on Sales, 3rd ed., pp. 804, 805), it is believed that at the present day delivery orders are not treated by London merchants and bankers as "documents of title" at all;-(3), before the Act of 1877, which is reproduced in the Act of 1889, the holder of a delivery order could either (a) present it, and obtain the goods, if there was no stop; (b) present it, and on its being recognized, leave the goods in the hands of the warehouseman as his bailee, constructive delivery thus taking place; (c) could in addition obtain a "warrant" from the warehouseman, as a document of title to the goods; but until he did one of these things, he acquired no title to the goods: see Imperial Bank v. St. Katharine's Docks (p); Lackington v. Atherton (q); and it was expressly laid down in Barber v. Meyerstein (r), that until one of these three courses had been taken, the bill of lading was the only symbol of the goods that could transfer any property in them, but when one of these courses was taken the power of the bill of lading was gone: see also Coventry v. Gladstone (8). But the adoption of any one of these three courses would also terminate the transit, as the warehouseman would then hold as bailee for the vendee or assignee; consequently, apart from the Factors' Acts, a delivery order could have no effect as a document of title until the transit was determined, and therefore dealings with it could have no effect on the vendor's right of stoppage in transitu.

Did, then, clause 5 of the Act of 1877 modify this? Taken literally, it certainly did, but it is difficult to believe that the legislature meant to interfere with the position of the bill of lading as the only symbol of the goods while in transit. For the above reasons, the question, which is a difficult one, is only suggested here (t).

(m) (1846), 16 M. & W. 119.
(n) (1849), 2 H. L. C. 309.
(0) (1859), 1 E. & E. 680.
(p) (1877), 5 Ch. D. 195.

(9) (1844), 7 M. & G. 360.

(r) (1870), L. R. 4 H. L. at p. 330. (s) (1868), L. R. 6 Eq. 44.

(t) See for a discussion on similar questions and of the now numerous clauses in Private Acts authorising the issue of negotiable warrants for goods, an article by Mr. A. T. Carter in L. Q. R. Vol. VIII., p. 300.


Lord Blackburn, in Kemp v. Falk (u), held that cash receipts i.e., receipts for the price of goods given by the vendee's agents, on production of which the carrier delivered the goods, were not documents of title within clause 5 of the Act of 1877, whose indorsement defeated the vendor's right to stop; and that if they were documents of title, the statute was never meant to have that effect"; what effect is not very clear.


On the general question of delivery orders and warrants, see also Merchant Banking Co. v. Phoenix Bessemer Co. (v); Gunn v. Bolckow Vaughan (w); Coventry v. Gladstone (y); Pooley v. Great Eastern Railway (z).

Article 68.-The Transit.

The determination of the beginning or end of the transit during which the goods may be stopped, involving, as it does, questions whether property or possession was intended by the parties to pass, must depend on the intention of the parties as shown by all the facts of the case (a).

Thus wrongful or mistaken delivery will not either commence (b) or end (c) the transit, nor will wrongful refusal to deliver by the carrier prevent the transit being considered at an end (d).

The transit commences when the vendor has given up possession of the goods in fulfilment of the contract, and continues until the goods have reached the hands of the vendee, or of one who is his agent to take possession of and keep the goods for whom at such a place that the goods will

(u) (1882), 7 App. C. at pp. 585, 586.

(v) (1877), L. R. 5 Ch. D. 205.

(w) (1875), L. R. 10 Ch. 491.

() (1868), L. R. 6 Eq. 44.

(*) (1876), 34 L. T. 537.

(a) (1877), Per Jessel, M.R., 5 Ch. D. 219.

(b) Ruck v. Hatfield (1822), 5 B. & Ald. 632, where goods were shipped conditionally on obtaining bills of lading reserving the jus disponendi to the consignor: see also the suggestion in Schotsmans v. L. and Y. R. Co. (1867), L. R. 2 Ch. 332, 335, that a vendor would not terminate the transit by shipping goods on a ship in ignorance of the ship's being owned by the vendee.

(e) Litt v. Cowley (1816), 7 Taunt. 169, where the carrier, after notice to stop, delivered by mistake to the consignee; see also Loeschman v. Williams (1815), 4 Camp. 181, a case of conditional delivery.

(d) Bird v. Brown (1850), 4 Ex. 786; see also Cowasjee v. Thompson (1845); 5 Moore P. C. 165, at p. 175, where vendors wrongfully retained a mate's receipt for the goods.

remain there until a fresh destination is communicated to them by orders from the vendee (e).

The necessity for stoppage in transitu does not arise until the vendor loses possession, as till then his possession enables him to exercise directly his lien for the unpaid price.

In some cases the vendor, by giving up possession, may also end the transit, as where he delivers goods on board the vendee's ship (f), without reserving the jus disponendi to himself (g). It makes no difference whether the ship is a general ship, or sent specially for the goods (h), or whether she is owned by the vendee, or is under a charter to him amounting to a demise (¿).

But delivery of the goods on board a ship chartered by the vendee, if the charter does not amount to a demise, will not end the transit, unless it clearly appears that such is the intention of the partics (j). Such an intention will not be inferred from the fact that the delivery is f. o. b., nor from the fact that the vendor does not know the ultimate destination of the vessel (k).

Case 1.-V. sold goods to P. and shipped them on board P.'s ship, t' en on the berth as a general ship. Bills of lading were taken, making the goods deliverable to P. or assigns. Held, that such shipment prevented V. from stopping in transitu (1).

Case 2.-V. sold clay to P. deliverable f.o.b. at X. It was shipped at

(e) Per Willes, J., in Bolton v. L. and Y. R. (1866), L. R. 1 C. P. at p. 439, Lord Ellenborough in Dixon v. Baldwen (1804), 5 East, 175; approved by C. A. in Ex parte Miles (1885), 15 Q. B. D. 39, at p. 44, and in Bethell v. Clark (1888), 20 Q. B. D. 615. These cases were approved by the Privy Council in Lyons v. Hoffnung (1890), 15 A. C. 391. See also Kendall v. Marshall (1883), 11 Q. B. D. 356, and Article 69.

(f) Schotsmans v. L. and Y. R. Co. (1867), L. R. 2 Ch. 332; Merchant Shipping Co. v. Phoenix Bessemer Co. (1877), 5 Ch. D. 205, at p. 219; Van Casteel v. Booker (1848), 2 Ex. 691.

(g) Vide ante, Article 61.

(h) Schotsmans v. L. and Y. R. Co., vide supra, at pp. 336, 337, distinguishing Mitchell v. Ede (1840), 11 Ad. & E. 888.

(i) Fowler v. M'Taggart (1801), cited at 1 East, 522.

(j) Berndtson v. Strang (1868), L. R. 4 Eq., 481; 3 Ch. 588; Moakes v. Nicholson (1865), 19 C. B. N. S. 290; Bohtlingk v. Inglis (1803), 3 East, 381; Thompson v. Trail (1826), 2 C. & P. 334; Inglis v. Usherwood (1801), 1 East, 515, as explained by the same Court in Bohtlingk v. Inglis, vide supra, at p. 398, is not contrary to the text. Cf. Colonial Ins. Co. v. Adelaide Ins. Co. (1886), 12 App. C. at p. 137.

(k) Ex parte Rosevear China Clay Co. (1879), 11 Ch. D. 560; v. Clark (1888), 20 Q. B. D. 615, and see note (t) sub. (1) Schotomins v. L. and Y. R. Co. (1867), L. R. 2 Ch. 332.

compare Bethell

X. on a ship chartered by P. V. did not know the ship's destination: no bills of lading were taken, nor did P. give an acceptance for the price. Held, that the clay was in the possession of the master of the ship as carrier, and that V. could therefore stop it during the voyage, on P.'s insolvency (m).

Article 69.-When the Transit ends.

The transit may be ended:

I. By delivery to the vendee or his agents.
II. By delivery to a forwarding agent (n).

III. By mutual agreement between vendor and carrier (n). 1. By actual delivery to the vendee or his agents (o), even before the original place of destination (p). What circumstances amount to delivery of the goods will depend on the intention of the parties concerned (q).

The delivery of part of the goods operates as a constructive delivery of the whole only in cases where the delivery takes place in the course of delivery of the whole, as where an essential part of a machine packed in parts is delivered to the consignee (r), in which case the taking possession of such a part by the buyer would be the acceptance of constructive possession of the whole (s). The burden

(m) Ex parte Rosevear China Clay Co. (1879), 11 Ch. D. 560; compare Bethell v. Clark (1888), 20 Q. B. D. 615, and see note (t), sub.

(n) These two classes are really special kinds of agents for the vendee.

(0) Willes, J., in Bolton v. L. & Y. R. Co. (1866), L. R. 1 C. P. at p. 439: such delivery may be at the vendee's own warehouse, or at a place which he uses as his own, for the deposit of goods, though belonging to another: Scott v. Pettit (1803), 3 B. & P. 469; Rowe v. Pickford (1817), 8 Taunt. 83; per Parke, B., in James v. Griffin (1837), 2 M. & W., at p. 633.

(p) L. & N. W. R. v. Bartlett (1861), 7 H. & N. 400. The dictum of James, L.J., in Ex parte Watson (1877), 5 Ch. D. 43, that, where the contract is to send goods to a place Z., "if the vendor found out that the goods were going to be diverted from the ship bound to Z. he would be entitled to obtain an injunction to prevent such diversion," is not inconsistent with this, as delivery after notice to stop in transitu would not be effectual in any case, while delivery before notice to stop, though short of Z., would be effectual, in spite of any injunction. Semble, that if the vendee acquires possession against the carrier's will, such possession is not effectual to deprive the vendor of his rights. (See Blackburn on Sales, 1st ed. p. 259; Bird v. Brown (1850), 4 Ex. 786, and cases, Article 68, and note to section 3 of this Article. Per contra, Parke, B., in Whitehead v. Anderson (1842), 9 M. & W. 518, at p. 534).

(7) See cases on constructive delivery summarised in Benjamin on Sales, 3rd ed. pp. 105, 785, 847.

(r) Ex parte Cooper (1879), 11 Ch. D. 68, per Cotton, L.J., at P. 75.

(s) Ex parte Cooper (1879), 11 Ch. D. 68, approving Willes, J., at L. R. 1 C. P. 440. Cases where part delivery has been held to give constructive delivery of the

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