law, when perfectly understood and rightly applied, is the highest and truest morality.

That this is eminently true of the rules and principles, constructions, implications and interpretations, which govern the laws of contract and general commercial law, I think all, who are reasonably familiar with its teachings, will readily and heartily agree.

SECTION 11.

Of the Seller's Right to Stop Goods in Transitu.

This is a right which a seller has of reserving possession of goods sold on credit, while they are in the hands of a carrier or middle-man in transit to the purchaser, and before they come to the actual possession of the purchaser.

The right is as old, in its existence and recognition as a part of the law merchant, as the 26th of March, 1760. It is an exceedingly important right, especially among a commercial community, and its rules should be so in the mind of every seller of merchandize that he may avail himself of it at a moment's notice, by telegraph if necessary. I shall, to make it more simple and clear, speak of it under the following divisions:

Whenever the purchaser becomes insolvent after the sale, and before the goods come into his actual possession.

Actual application for the benefit of the acts in bankruptcy, or an assignment, or anything amounting to technical insolvency, is not necessary.

"Insolvency" is an inability to pay one's debts, in the ordinary course of his business; and, I suppose, that if the purchaser has, from inability, failed to meet his obligations, a bank note or any other obligation, in the regular way, and when it becomes due, (it not being a mistake or otherwise

explainable,) insolvency has arisen, and the right of stoppage in transitu exists; provided the goods are still in

transit.

Second, Who possesses and may exercise the right?

Any seller, either personally or by his agent, clerk, or some friend acting for him; provided, in the last case, the act of the friend be ratified before the goods reach the purchaser, so as to make it by adoption the act of the seller. Not by a surety or guarantor, unless acting on behalf of the seller.

As a practical example: I am in Buffalo, and learn that "A." in that city has just failed to meet his obligations. I know that my friend in New York has within a few days sold him $10,000 of goods,-I presume they have been shipped, and that they will probably go by N. Y. Central Railroad, perhaps are now at the depot in Buffalo,-I should go to the depot, and if the goods were there undelivered, I should take immediate possession of them, on behalf of my friend the seller, I should then telegraph what I had done, and, if my act is ratified, the right is well exercised.

If the same information came to my friend in New York, he should telegraph instantly to the freight agent and other officials, making it reasonably certain that it will reach some one who will have control of the goods; to hold them for the consignor and not to deliver. If such notice reaches the carrier while they are in his hands, he must hold them, or if he delivers them it is at his peril and loss, if the right turn out to have existed.

Third, How long does it continue?

I answer, so long as the goods are in transit, that is, at any time before they come to the actual possession and control of the purchaser.

They are in transit while they remain in the hands of the carrier, though he be appointed by the vendee, and though the freight is to be paid by him; and the right may be exercised although a creditor of the vendee has attached them while in transit; and it is immaterial whether the attachment be made while the goods are en route, or after arriving

at the freight depot, from which the purchaser receives his goods.

Being an adverse right, it cannot be defeated by any act of the consignee or of his creditors, till actual possession is obtained by the purchaser, except (in the case of goods shipped upon the water) by bona fide sale, and endorsement of the bill of lading.

A Bill of Lading, being by the custom of merchants negotiable, the same effect is given to a Bill of Sale, accompanied by its transfer, as is given to the transfer by endorsement and sale, in good faith, of any negotiable security.

To illustrate by familiar example:-All business men know, that a seller has a lien on goods sold, to be paid for on delivery, while they remain on his premises; and he may hold them till full payment is actually made. Now whenever insolvency of the purchaser supervenes, between the sale and an actual, perfected, delivery to him,-extend this same lien and make the premises of the seller, for the working out of your lien, include all places till the goods are actually received by the purchaser, and you have the extended lien arising out of this right of stoppage in transitu.

Fourth, How is the right exercised?

Not, necessarily, (as we have seen) by actual seizure of the goods, though, of course, to save trouble and complication, it is desirable to do so if it can be done,-but it is suf ficient to give notice to the carrier in whose hands they are; on the receipt of which notice, it becomes the duty of the carrier to retain the goods for the consignor; and if afterwards, even by mistake, he delivers them to the vendee, he would become liable in trover or other suitable action, on behalf of the consignor, who has right to them or their value, even against the assignees in bankruptcy of the insolvent vendee. The notice, to be effectual, must be given to the one who has the actual custody of the goods.

If given to a principal, whose servant has the custody, it should be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, can communicate it to his servant.

The seller may still sue for the price, or prove his debt, against the estate of the bankrupt,—if he is ready to deliver the goods when he is paid the amount due, although he has seized and is holding the goods.

If part payment has been made, he may still seize the goods in transitu for the balance, as part payment only diminishes the lien pro tanto. The seller, who stops in their transit, goods sold by him, does not thereby become again their owner; he has only a lien for payment of the amount due him upon their sale.

The vendor should, therefore, after he has seized the goods, request the vendee or his assignee to pay for, and take them. If, on such request, he or his assignee does not take them away and pay for them in a reasonable time, the sale may be treated as dissolved, and the seller may dispose of them again.

The taking of a note of the purchaser, for the price of the goods, will not amount to such payment as will prevent the seller from exercising the right of stoppage in transitu, even in a state in which the taking of such a note is presumed to be in payment of the purchase money; as this presumption is met by the fact, that the seller would, if the note were taken in payment, lose this right, and the presumption will therefore not be made.

If expressly agreed to be in payment, the right is of course gone.

1. BILL OF SALE, WITH WARRANTIES.

dollars to me paid before , the receipt whereof

I, A. B., in consideration of the delivery hereof by C. D. of is hereby acknowledged, have sold, and by these presents do convey to said C. D. and his assigns, the following articles of personal property :-[Here specify the articles sold]. And I hereby agree with said C. D. to warrant and defend the title of said goods and chattels hereby sold, to him and his assigns against all and every person. [If to the warranty of title there is to be added other warranties as to quality

&c., add:] And I hereby warrant the said flour to be "F. F. F. G." as to brand, and in perfect condition. [Add any other warranty as to quality or otherwise as may be desired].

C. D., of

in consideration of

dollars paid by

hereby sell and convey to said C. D. the following personal property, [Here insert schedule of articles], warranted against adverse claims.

I have this day sold to A. B. of Albany, one gray horse for three hundred dollars, the receipt whereof I hereby acknowledge, and in consideration thereof I warrant said horse to be sound, kind, free from vice, and not more than years

old.

C. D.

NOTE. This may be varied to suit different cases, and the foregoing seventh section of the chapter on sales will show what words or acts are sufficient in any case to constitute a guaranty.

It is a general rule, that if a seller of personal property make any statement respecting the kind, quality or condition of the article, upon which he intends the purchaser should rely as a fact, and upon which he does rely, such statement is to be deemed a warranty.

Warranty must accompany the sale, unless fresh consideration be given, otherwise, if made afterward, it is void for want of consideration.