Oppenheim v. Russell;a and the better opinion now is, that if the vendee intercepts the goods on their passage to him. and takes possession as owner, the delivery is complete, and the right of stoppage is gone. But if the goods have arri ved at the port of delivery, and are lodged in a public warehouse for default of payment of the duties, they are not deemed to have come to the possession of the vendee, so as to deprive the consignor of his right.b

(3.) Of acts of the vendee affecting the right.

A re-sale of the goods by the vendee does not of itself, and without other circumstances, destroy the vendor's right of stoppage in transitu. But if the vendor has given to the vendee documents sufficient to transfer the property, and the vendee, upon the strength of them, sells the goods to a bona fide purchaser without notice, the vendor would be devested of his right. A bill of lading usually has the word assigns: the goods are to be delivered to the consignee or his assigns, he or they paying freight; and a great question has accordingly arisen, and been very elaborately discussed and litigated in the English courts, whether the bill of lading could be negotiated by the consignee like a bill of exchange, and what legal rights were vested in the assignee. In the case of Lickbarrow v. Mason,d it was decided by the K. B. that a bona fide endorsement, for a valuable consideration, of a bill of lading by the consignee, to an assignee, who had no notice that the goods were not paid for, was an absolute transfer of the property, so as to devest the

a 3 Bos. & Pul. 54.

Northey v. Field, 2 Esp. Rep. 613. Nix v. Olive, cited in Abbott. on Shipping, 426.

c Craven v. Ryder, 6 Taunton, 433. Lord Alvanley, 3 Bos. & Pull, 47. Whitehouse v. Frost, 12 East, 614. Stoveld v. Hughes, 14 East, 308.

consignor of his right of stoppage in transitu as against such assignee. There is no case on mercantile law which has afforded a greater display of acute investigation. The judgment of the K. B. was reversed in the Exchequer Chamber, and Lord Loughborough took a masterly view of the whole subject, and completely overthrew the doctrine of the negotiability of bills of lading." The case then went to the House of Lords, where Mr. Justice Buller most ably supported the decision of the K. B. A new trial was awarded, and a special verdict taken, and judgment given thereon without discussion; the judges of the K. B. declaring, that notwithstanding the decision in the Exchequer Chamber, they retained their former opinions." The question, therefore, remains, to a certain degree, still floating and unsettled; though it seems now to be considered as the law at Westminster Hall, that if a bill of lading be assigned bona fide for a valuable consideration, it is a transfer of the property; and in the case of the consignee, if it be made without notice of the insolvency of the consignee, the property is absolutely vested in the assignee of the consignee, and the consignor has in that case lost his right to stop. It is likewise considered to be the law in this country, that the delivery of the bill of lading transfers the property to the consignee; and it seems to be conceded, that the assignment of it by the consignee property.f

pass the

But it must not be understood that the consignee can, in all cases, by his endorsement of the bill of lading to a third person, even for a valuable consideration, and without col

a Mason v. Lickbarrow, 1 H. Blacks. 357.

b 6 East, 17. in notis.

e 2 H. Blacks. 211. 5 Term Rep. 367.

d Lickbarrow v. Mason, 5 Term Rep. 683.

e Cumming v. Brown, 9 East, 506. Morrison v. Gray, 2 Bingham, 260. Walter v. Ross, Wharton's Dig. tit. Vendor, n. 80.

f Griffith v. Ingledew, 6 Serg. & Rawle, 429.

lusion, defeat the right of the consignor to stop the goods. It will depend upon the nature and object of the consignment, and the character of the consignee. As a general rule, no agreement made between the consignee and his assignee,can defeat or affect this right of the consignor; and the consignor's right to stop in transitu is prior and paramount to the carrier's right to retain as against the consignee. A factor having only authority to sell, and not to pledge the goods of his principal, cannot devest the consignor of the right to stop the goods in transitu, by endorsing or delivering over the bill of lading as a pledge, any more than he could by delivery of the goods themselves by way of pledge; and it is the same thing whether the endorsee was or was not ignorant that he acted as factor. If the assignee of the bill of lading has notice of such circumstances as render the bill of lading not fairly and honestly assignable, the right of stoppage as against the assignee is not gone; and any collusion or fraud between the consignee and his assignee will, of course, enable the consignor to assert his right. But the mere fact that the assignee has notice that the consignor is not paid, does not seem to be sufficient to render the assignment defeasible by the stopping of the cargo in its transit, if the case be otherwise clear of all circumstances of fraud; though if the assignee be aware that the consignee is unable to pay, then the assignment will be deemed fraudulent as against the rights of the consignor.c

Sir William Scott observed, that this privilege of stoppage was a proprietary right, recognised by the general mercantile law of Europe, as well as by that of England. The French law has gone very far towards the admission of the right, to the full extent of the English rule. It allows the

a Oppenheim v. Russel, 3 Bos & Pull. 42.

b Newson v. Thornton, 6 East, 17.

c Cuming v. Brown, 9 East, 506.

d 6 Rob. Rep. 325.

vendor to stop the goods in their transit to the consignee, in case of his nonpayment or failure, provided the goods have not been in the mean time sold bona fide according to the invoices and bills of lading, or altered in their nature or quantity; and the estate of the insolvent vendee be indemnified against all necessary expenses and advances on account of the goods; and the assignees of the vendee will be entitled to the goods on payment of the price. The civil law, and the laws of those European nations which have adopted the civil law, do not consider the transfer of property to be complete, even by sale and delivery, without payment or security for the price, unless credit be given. In case of insolvency, the seller may reclaim the goods as being his own property, even from the possession of the buyer.

a Code de Commerce, No. 576-580.582.

b Dig. 1. 1. 19. Domat, b. 4. tit. 5. s. 2. art. 3. Van Leeuwen's Comm.. on the Roman Dutch Law, b. 4. c. 17. s. 3.

LECTURE XL.

OF BAILMENT.

BAILMENT is a delivery of goods in trust, upon a coutract, expressed or implied, that the trust shall be duly executed, and the goods restored by the bailee, as soon as the purpose of the bailment shall be answered."

There are five species of bailment, according to Sir William Jones, in his correction of Lord Holt's enumeration of the different sorts of bailments. (1.) Depositum, or a naked deposit without reward. (2.) Mandatum, or commission, which is gratuitous, and by which the mandatary undertakes to do some act about the thing bailed. (3.) Commodatum, or loan for use without pay, and when the thing is to be restored in specie. (4.) A pledge, as when a thing is bailed to a creditor as a security for a debt. (5.) Locatio, or hiring for a reward. I shall examine each of them in their order.

I. Of depositum.

This is a bailment of goods to be kept for the bailor, without a recompense; and as the bailee or depositary derives no benefit from the bailment, he is responsible, if there be no special undertaking to the contrary, only for

a 2 Blacks. Com. 452. Pothier, Traité du Contrat de Dépôt, No. 1. b Jones' Essay on the Law of Bailments, p. 27. Ist edit. 1790.