But it was held, by the Supreme Court of the United States, that the lien of the master or owners, being but a common-law lien, could not be enforced in admiralty. We think, however, this case was wrongly decided, for there seems to be no subject over which the admiralty should more properly take jurisdiction, than general average. The reasons on which the decision of Cutler v. Rae rests, have been much shaken by recent decisions, and further adjudication is necessary to settle the question. It has been held that a libel in rem is maintainable against the vessel in admiralty, by a shipper entitled to contribution.3

The right of the master to maintain assumpsit against each shipper for the amount severally due, which is given by the common law, is inconvenient and expensive where there are many shippers, and the usual and most effectual way of obtaining relief, at the present day, is by a bill in equity.5

1 Cutler v. Rae, 7 How. 729.

2 In Dike v. Propeller St. Joseph, 6 McLean, C. C. 573, the court said: "The decision, however, in the case of Cutler v. Rae, was by a divided court, and it has not been satisfactory to the profession, nor was it a decision in accordance with the prior decisions of the Supreme Court. I should conform to it in a case that could not be distinguished from its principles." And in Dupont de Nemours v. Vance, 19 How. 162, Mr. Justice Curtis, speaking of Cutler v. Rae, said: "The court decided, that, though the master, as the agent of the owner of the vessel in that case, had, by the maritime law, a lien upon the goods, as security for the payment of their just contribution, this lien was lost by their voluntary delivery to the consignee; and that the implied promise to contribute could not be enforced by an action in personam against the consignee, in the admiralty. This admits the existence of a lien, arising out of the admiralty law, but puts it on the same footing as a maritime lien on cargo for the price of its transportation; which, as is well known, is waived by an authorized delivery without insisting on payment." If this be the reason for the distinction, it follows that no action will lie in personam for freight, where the goods have been delivered up.

Dike v. Propeller St. Joseph, 6 McLean, C. C. 573; Dupont de Nemours v. Vance, 19 How. 162. In a case prior to this latter decision, Mr. Justice Curtis held, on the authority of Cutler v. Rae, that there was no lien in rem against the vessel in such a case. Beane v. The Mayurka, 2 Curtis, C. C. 72. But the decision in Dupont de Nemours v. Vance, to the contrary effect, was given by the same learned judge, and in a still more recent case the correct rule that a lien exists has been laid down. The John Perkins, U. S. C. C., Mass., 1857, 21 Law Rep. 87, 96.

Sherwood v. Ruggles, 2 Sandf. 55; Marsham v. Dutrey, Select Cases of Evid. 58; Birkley v. Presgraves, 1 East, 220; Dobson v. Wilson, 3 Camp. 480.

Sturgess v. Cary, 2 Curtis, C. C. 59; Patten v. Darling, 1 Clifford, C. C. 254. See also Sheppard v. Wright, Show. P. C. 18; Doane v. Keating, 12 Leigh, 391.

CHAPTER X.

OF STOPPAGE IN TRANSITU.

SECTION I.

OF THE ORIGIN AND HISTORY OF THE RIGHT OF STOPPAGE IN TRANSITU.

THE right of stoppage in transitu may be defined as the right by which the seller of goods to a distant purchaser, who becomes insolvent, stops them, if he can do so, before they come into the possession of the purchaser.1

It is now quite settled that this right belongs to the seller who sends his goods by land, as well as to him who sends them by sea. And the consideration of it might seem to belong, in some respects at least, to an investigation of the law of purchase and sale. But it originated with waterborne goods, and is still exercised far more frequently in those cases than in land carriage. And it therefore may properly as it is usually be regarded as a part of the law of shipping.

When, and how this law of stoppage in transitu became a part of the law of England, is not quite certain. Its introduction is comparatively recent; and it is very important to ascertain, if we can do so, the foundation and determining principles of this now wellestablished rule of law; and some inquiries into its origin and history will help us to do this.

There are in fact three ways, in either of which it might be supposed that the law of stoppage in transitu entered into the law of England. One, by adoption from the continental law, which is based upon the civil law. This law, in the case of a sale, does not consider the right of property as passing to the buyer, until he has 1 See articles on the subject of stoppage in transitu, in 7 Am. Law Register, 577, 641.

possession of the goods. It distinguishes carefully, and we think wisely, between the jus ad rem which such a buyer gets by the sale to him, and the jus in re, into which the jus ad rem ripens as soon as the buyer takes possession. It follows, therefore, that the seller continues to own the goods until they reach the buyer. He need not stop them, nor do anything else to revest any title in himself. If they are not in the possession of the buyer when the buyer becomes insolvent, they do not pass into his general assets, leaving the seller to take his dividend; but the insolvency leaves the goods the property of the seller. This we understand to have been the principle of the rule in Scotland, and in most other countries in which the civil law prevails. But in Scotland it seems to be otherwise now.2 In France also, the rule has been made more like our own; that is, some act equivalent to stoppage is required to give to the seller full security in the goods. But it is plain that this rule of the civil law could not be adopted in England, where the precisely opposite rule prevails, namely, that a sale does of itself pass the property to the buyer without delivery. By the civil law, the seller was indeed permitted to reclaim the property from the possession of the buyer, within a short period, on the ground that the speedy insolvency implied fraud, if the very goods had not been sold by the buyer, and could be distinctly separated and identified.

Another way is, by supposing that the seller had, until the goods reached the buyer, a right to rescind the sale for non-payment, provided the buyer became insolvent; and that the act of stoppage in transitu was an exercise of this right. This was at one time rather a favorite view; and in some cases the courts seem to have endeavored to establish this as the true theory of stoppage in transitu. But they failed, as we think, entirely. We should say that in England the course of adjudication was against this doctrine, and in this country it is so very certainly.4

1 Dig. 18, 1, 19. See also id. 19, 1, 13, 8; and 14, 4, 5, 18.

Formerly in Scotland the doctrine of restitution, grounded on presumptive fraud intra triduum of the bankruptcy of the buyer, prevailed. The last case in which this doctrine was held was decided in 1789, but on appeal to the House of Lords, the doctrine was reprobated and has since been abandoned, and the law of England on the subject is now in force. Bell's Comm., Book ii. c. vi. § 1.

3 Code de Commerce, liv. iii. tit. iii. art. 576, et seq.; Rodman's Translation, p. 301. See also Bell's Comm. Book ii. c. vi. § 1.

The third way is, by supposing that the common-law doctrine, of the seller's lien on the goods sold for his price as long as he has them in his possession, continues in force after they have left his possession, and until they have reached the possession of the buyer; or in other words, that the goods are considered as constructively in the possession of the seller until the buyer has actual possession.

In our own view, we must combine the first and the third of these three ways, in order to account for the law of stoppage in transitu, as a part of the English law and of our own.

We mean, that this law, in part as a direct consequence of the rules of the civil law, then even more than now, widely prevailing, and in part from its obvious reason and justice, became a part of the law merchant as established by general usage and custom. That when it came first before the observation of the courts, they found it thus established, and saw it to be reasonable and just, and looked about to find in the English law some principle by means of which it could be received. And they found this in the law of lien, and in the continued constructive possession of the seller; and thus founded the law of stoppage in transitu upon this lien, making the act of stoppage only an exercise of this lien; and therefore regulating the law of stoppage by the general principles which belong to the law of lien.

We may remark in passing, that this is by no means the only instance in which the English law of lien in the seller is used to neutralize the ill effect of the rule, that the sale without delivery passes the property to the buyer. Indeed, this rule of lien seems. to have been devised to supply the want of the civil law distinction between the jus ad rem and the jus in re; and if permitted to have this effect, it will aid in the solution of some of the vexed questions of the law of sales.

To return to the origin and foundation of the law of stoppage in transitu, we shall find that the cases sustain the views above expressed. The earlier ones certainly do; and if later authorities have sought, as we have intimated, to change the ground from that of lien to that of rescission, the latest return, as we think, to the original doctrine.1

The first notice we have of this rule in the books, is in the case of Wiseman v. Vandeputt, 2 Vern. 203, in 1690. It was clearly a case of stoppage in

We deem this question, of the origin of the law of stoppage in transitu, as one which should be clearly determined, for whether transitu; and the right of the seller was sustained by the court, then consisting of lords commissioners, in a very brief opinion, without giving much reason, or referring to much authority or usage. Then came Snee v. Baxter, 1 Atk. 245, in which the right is very positively asserted by Lord Chancellor Hardwicke. This case is said by Buller, J., in Lickbarrow v. Mason, as cited in the note to Newsom v. Thornton, 6 East, 20, 28, to be " miserably reported." It is not easy to get at the exact force or application of all that Lord Hardwicke says. It seems, however, to be certain that he puts the case on equitable, rather than on legal principles. He says: "He who would have equity, must do equity," and afterwards says: "Though goods are even delivered to the principal, I could never see any substantial reason why the original proprietor, who never received a farthing, should be obliged to quit all claim to them, and come in as a creditor only for a shilling perhaps in the pound, unless the law goes upon the general credit the bankrupt has gained by having them in his custody." This would seem to be an implied approval of the rule of the civil law, and a declaration that the common law is otherwise. His lordship immediately adds: "But while goods remain in the hands of the original proprietor, I see no reason why he should not be said to have a lien upon them till he is paid, and reimbursed what he so advanced; and therefore I am of opinion the defendant had a right to retain them." This is, in the first place, an assertion of the common-law rule of lien in the case of sale, as well established then as it is now; and in the next place, by making this rule the ground of supporting a stoppage in transitu (which last two words are used in the decision), it is certain that the Chancellor considered the goods as in the possession of the seller, until they reached the buyer; and that the stoppage in transitu was only an exercise of the lien of the seller.

The case would be more valuable in this respect, did it not turn very much on the effect of an assignment by the bankrupt of the bills of lading for the goods. In one paragraph the Chancellor says: "This must depend upon the custom of merchants, and here indeed there is a contrariety of evidence." But from what follows, we apprehend that this diversity related not to the right of stoppage in transitu, but to the general usage in reference to the indorsement of the bills of lading. The next case is also in equity. It is that of D'Aquilla v. Lambert, Amb. 399, 2 Eden, 75, in 1761. The original seller, who had demanded the goods of the shipmaster, filed a bill to obtain them. The language of the Lord Chancellor, in decreeing for the plaintiff, is quite remarkable. "This is a question of extent and consequence in trade. If it had been res integra, I should have required a more extensive argument, and taken time to consider; but it is not a case of difficulty. Has been settled by several determinations, which have been universally approved of by merchants."

It is to be noticed that Buller, J., in his opinion in Lickbarrow v. Mason, quoted in a note to Newsom v. Thornton, 6 East, 25, considers precisely the question we have above presented, and his words are very emphatic. He says: "I will beg leave to make a few observations on the right of stopping goods in transitu, and on the nature and principles of liens. ... It is a contradiction in