of proving such constructive delivery is on those who assert it (t).

Case.-V. shipped 100 tons of iron castings to P. on a ship chartered by V. under a bill of lading to P. and assigns. On arrival thirty tons had been delivered to P., who had paid part of the freight. V. then stopped in transitu. Held, the notice was good as to that part of the cargo not delivered (t).

2. Delivery of goods to a forwarding agent will or will not end the transit, according as the forwarding agent receives them as agent for the vendee or as carrier. The chief test of his character is whether he receives the instructions necessary for forwarding from the vendee or vendor (u). It is immaterial that the property in the goods passes to the vendee on delivery to the carrier (v).

Thus, if the vendor from the contract of sale, or from instructions from the vendee, can give no further directions as to the destination of the goods, and they will therefore remain with the forwarding agent, unless and until he has received instructions from the vendee, such an agent will receive the goods as agent for the vendee, and on his receiving them the transit will be at an end (vv).

whole, are Tunner v. Scovell (1845), 14 M. & W. 28; Slubey v. Heyward (1795), 2 H. Bl. 504; Hammond v. Anderson (1803), 1 B. & P. N. R. 69; Jones v. Jones (1841), 8 M. & W. 431, which were criticised in Ex parte Cooper, vide supra, at P. 17, and Ex parte Falk (1880), 14 Ch. D. at p. 455 and 7 App. C. 573, 579, 586. See also Wentworth v. Outhwaite (1842), 10 M. & W. 436; Whitehead v. Anderson (1842), 9 M. & W. 518; Dixon v. Yates (1833), 5 B. & Ad. 313, 339.

(t) Ex parte Cooper (1879), 11 Ch. D. 68; one reason given by the Court, that constructive delivery would involve the master's abandonment of his lien for the balance of the freight, appears inconsistent with Allan v. Gripper (1832), 2 C. & J. 218, in which it was held that the existence of the carrier's lien was not inconsistent with his holding as the vendee's agent, though the transit was at an end. (u) Kendall v. Marshall (1883), 11 Q. B. D. 356. See also a note by Mr. A. Cohen, Q.C., in 'Law Quarterly Review,' Oct. 1885. The test may be put otherwise: "Is the transit prescribed by the vendor over? If so, the right to stop is gone, though further transit takes place prescribed by the vendee." But Ex parte Roseve ir China Co. (1879), 11 Ch. D. 560 (Art. 68, Case 2), shews that sometimes the vendor may be unable to "prescribe the transit," and yet retain his right to stop. It is easy to distinguish the facts of this case from others, but hard to see the principle of distinction between them. The test is also subject to this, that if the vendee gets the goods by consent of the carrier before the prescribed transit is over, the right is gone. See this point discuss.d by Bowen, L.J., in Kendall v. Marshall, vide supra, at p. 639.

(x) Lyons v. Hoffnung (1890), 15 App. C. 391.

(vc) Ex parte Miles (1885), 15 Q. B. D. 39, affirming Dixon v. Baldwen (1804), 5 East, 175; Rore v. Pickford (1817), 8 Taunt. 83; Ex parte Gibbes (1875), 1 Ch. D. 101; Leeds v. Wright (1803), 3 B. & P. 320.

If, on the other hand, the vendor can and does give such instructions, as where the contract provides for such further transit, the transit will not end on delivery to the forwarding agent, though the particular ship in which the transit is to be made is ordered by the vendee, for in this case the forwarding agent receives the goods as carrier (w).

Case 1.-V. sold goods to P. in London, P. being employed as commission agent by G. in Jamaica. P. ordered the goods of V. "for the mark E. M., Kingston, Jamaica." V. knew from previous dealings that this mark was used by G. P. instructed V. to pack the goods, mark them with the above mark, and forward them to Q. at Southampton for shipment by the S. V. forwarded to Q., adding “please forward as directed:" V. sent particulars of mark, &c., of goods, leaving columns for "consignee" and "destination" blank. After this P. wrote to Q. that the consignee was G., and the destination "Kingston, Jamaica." The goods were shipped under bills of lading describing P. as consignor. P. afterwards failed. Held, that V.'s right to stop had ceased when the goods reached (x).

Case 2.-V. sold goods to P. in London; P. wrote to V.:-" Please consign the goods to the Darling Downs to Melbourne, loading in the Fast India Docks here." V. sent the goods by rail to London. The railway company sent P. an advice note that the goods were at his order and risk, together with a note: "The goods advised by this note have been forwarded to our Poplar Station for shipment per Darling Downs." They were so forwarded by the railway company and were shipped on the Darling Downs for Melbourne, the mate's receipts being sent to P. On the day they were shipped P. failed, and V. sent notice to the railway company to stop delivery, too late to prevent shipment. Held, that the captain of the ship received the goods as a carrier to Melbourne; that the transit did not therefore end till M., and that the notice to stop was effectual (y).

Case 3.-V. agreed with P. to sell him goods, drawing bills on him for the price, and shipping them to G. at Z. V. packed the goods, and forwarded them to London in bales marked Z., and addressed to the S., a ship named by P., an bound for Z. The railway company advised P. of the arrival of the goods in London, and that "they remained at his order, and were held by the company as warehousemen at his risk,” adding "will be sent to the S." They were o sent and shipped. Held, that the transit lasted till the arrival of the goods at Z., and V. could therefore stop in transitu at any time before such arrival (2).

Case 4.-V. sold goods to P., P. saying nothing about their destination.

(w) Bethell v. Clark (1888), 20 Q. B. D. 615; Lyons v. Hoffnung, v. s.; Ex parte Watson (1877), 5 Ch. D. 35, as explained in Ex parte Miles (1885), 15 Q. B. D. at pp. 46, 47; Kendall v. Marshall (1883), 11 Q. B. D. 356; Rodger v. Comptoir d'Escompte (1869), L. R. 2 P. C. 393; Valpy v. Gibson (1847), 4 C. B. 837; Nicholls v. Le Feurre (1835), 2 Bing. N. C. 81; Coates v. Railton (1827), 6 B. & C. 422 (doubted by Brett, L.J., 11 Q. B. D. at p. 366); Smith v. Goss (1808), 1 Camp. 282; James v. Griffin (1837), 2 M. & W., per Parke, B., at p. 633.

(x) Ex parte Miles (1885), 15 Q. B. D. 39.

() Bethell v. Clark (1888), 20 Q. B. D. 615. Cf. Lyons v. Hoffnung (1890), 15 App. C. 391.

(2) Ex parte Watson (1877), 5 Ch. D. 35.

P. resold to K., and arranged with K. that the goods should be forwarded to Z. by steamer from X. P. then directed V. to send the goods to K. at X. V. did so, and the railway company gave K. notice that they held in goods as his warehousemen. Held, that V.'s right to stop in transitu was at an end (a).

3. The transit may be ended by agreement (b) between the carrier, wharfinger, or forwarding agent on the one hand, and the consignee on the other, that the former shall hold the goods, not as carrier but as vendee's agent (c). The fact that the carrier still claims a lien on the goods will not prevent his holding as vendee's agent, so as to bar the vendor's right of stoppage (d).

Note.-There must be a mutual understanding; thus, the intention of the carrier alone, not assented to by the consignee, will not suffice (e). Nor will the demand of the vendee if not assented to by the carrier (f), provided such refusal to deliver is not wrongful (g). Quære, whether the transit could be so ended during the voyage by agreement between carrier and consignee. It could be by actual delivery to the consignee; why not by the agreement of the carrier to hold as the vendee's agent? Yet this would seriously affect the vendor's rights.

Case 1.-V. sold oil to P. and forwarded it by carrier to Z. On its arrival at Z. the carrier gave notice to P., who signed for it in the carrier's books. Held, that the transit was over (h).

Case 2.-V. sold goods to P., who lived at Z., and forwarded the goods to Z. by steamer. On arriving, the steamer was discharged into B.'s warehouse. B. was agent of the steamer, and usually held such goods at the risk and subject to the orders of the consignee. In this case he had no orders, as P., being bankrupt, had absconded before the arrival of the goods. V. gave P. notice to stop the goods. Held, that the transit was not ended by delivery of the goods to B., who could not be P.'s agent without authority from P. (i).

Case 3.-V. sold goods to P., and forwarded them by ship. P. pledged the bill of lading to 1. and became bankrupt. When the ship reached the Thames, I. paid the treight to the brokers and obtained an overside order

(a) Kendall v. Marshall (1883), 11 Q. B. D. 356.

(b) James v. Griffin, vide supra; Bolton v. L. & Y. Railway (1866), L. R. 1 C. P. 431; Ex parte Barrow (1877), 6 Ch. D. 783.

(c) James v. Griffin (1837), 2 M. & W. 623; Ex parte Gouda (1872), 20 W. R. 981.

(d) Allan v. Gripper (1832), 2 C. & J. 218; Kemp. v. Fulk (1882), 7 App. C. at p. 584.

(e) Edwards v. Brewer (1837), 2 M. & W. 375.

(f) Jackson v. Nichol (1839), 5 Bing. N. C. 508; Coventry v. Gladstone (1868), L. R. 6 Eq. 44.

(g) Bird v. Brown (1850), 4 Ex. 786.

(h) Ex parte Gouda (1872), 20 W. R. 981. (i) Ex parte Barrow (1877), 6 Ch. D. 783.

for delivery. On presenting this at the ship, before she began to unload I. was told that he should have the goods as soon as they could be got at. Before unloading legan, V. stopped the goods. Held, that the transit was not ended by I.'s transactions, and that V. was entitled to stop (j).

Article 70.-Notice to stop, how given.

Notice to stop in transitu, to be effective, must be given either to the person holding the goods (as the captain of the ship or the warehouseman), while the goods are still in transitu, or to the shipowner or principal, whose servant has the custody of the goods, in such a time that he can by reasonable diligence forward it to his servant in time to prevent delivery; and it is his duty so to forward it (k).

Semble, that delivery by mistake after such a notice is received by the person in whose possession the goods are, will be ineffectual to rob the vendor of his remedy against the carrier (1).

Article 71.-Master's duty on receiving Notice.

It is incumbent on the master to give effect to a claim to stop in transitu by delivery of the goods to the vendor, and not merely by abstaining from delivery to the vendee,

(j) Coventry v. Gladstone (1868), L. R. 6 Eq. 44.

(k) Whitehead v. Anderson (1842), 9 M. & W. at p. 534; Kemp v. Falk (1882), 7 App. C. at p. 585; per Lord Blackburn, who suggests that his view is at variance with that expressed by Bramwell, L.J., in the Court below (Ex parte Fa k, 14 Ch. D. at p. 455), who said "I cannot think that any duty was imposed on the shipowners at L. to stop the goods; it would be monstrous to hold that the telling someone else to stop the goods amounts to a stoppage in transitu.” The first sentence is contrary to Whitehead v. Anderson (at p. 534). But the last sentence is clearly right, as notice to the shipowner, not reaching the captain, could not prevent the consignee from obtaining the goods, the vendor's remedy being against the shipowner. Litt v. Cowley (1816), 7 Taunt. 169, seems to decide further that delivery by an agent, who through mistake or neglect of his principal has not been informed of a notice to stop duly given to the principal, does not prevent the vendor from maintaining trover against the vendee, but as the case proceeds on the view now abandoned, that notice to stop rescinds the contract, this position can hardly now be justified. It seems therefore that in such cases the remedy is against the carrier only; for the vendor cannot claim the property, which has passed, or his lien, which has been lost, or possession, which has been abandoned. From this point of view see Short v. Simpson (1866), L. R. 1 C. P. 248, at p. 255. For an ineffectual notice to stop, see Phelps v. Comber (1885), 29 Ch. D. 813.

(1) Litt v. Cowley (1816), 7 Taunt. 169; Short v. Simpson, vide supra.

as soon as he is satisfied that the claim is made by the vendor, unless he is aware of an answer in law to such claim (m). He can protect himself by an indemnity from the person to whom he delivers, or in case of a double claim, can interplead.

Article 72.-Indorsement of Bill of Lading as a Mortgage.

The effect of indorsement of a bill of lading may be to show an intention to pass, and therefore to pass the legal estate in the goods to the indorsee as security by way of mortgage for an advance, leaving the indorser an equitable right to redeem them (n).

Article 73.-Indorsement of Bill of Lading as a Pledge.

The indorsement may have the effect of giving the indorsee an equitable interest as security by way of pledge for an advance, accompanied by a power to obtain delivery of the goods when they arrive, and if necessary to realize them for the purpose of the security (o). If such goods are not delivered to the pledgee of the bill of lading, he can bring trover or detinue at common law for them, though the defendant's parting with the goods was before the plaintiff acquired his title (p).

An indorsement of bills of lading in blank, and their deposit so indorsed by way of security for money advanced (1), without more, will be held to be a pledge (o).

Note. It is impossible to state with any confidence what dealings with a bill of lading will amount to a mortgage as dis

(m) The Tigress (1863), 32 L. J. Adm. at pp. 101, 102.

(n) Sewell v. Burdick (1884), 10 App. C. 74. As to the difference in general between a mortgage and a pledge, see In re Morritt (1886), 18 Q. B. D. at Pp. 232, 235.

(0) Sewell v. Burdick, ante. The person indorsing the bill of lading as security for advances still retains sufficient interest in the goods to enable him to bring an action for damage to them. The Glamorganshire (1888), 13 App C. 454.

(p) Bristol Ban': v. Midland Ry. Co. (1891), 2 Q. B. 653.

(7) It will require the stamp suitable for a pledge, and not for a mortgage: Harris v. Birch, 9 M. & W. 591 (1842).