his right to stop the goods in transitu (u).

When the consignor of goods intends to stop them in transitu, and for that purpose directs the captain of a ship on board of which the goods are sent not to deliver them to the consignee, the captain is bound to comply with the order of the consignor, and to detain the goods for him; and an action cannot be supported by the consignee against the captain for not delivering the goods to him (x).

If the master of a ship has delivered part of a cargo to the consignee, the transitus is thereby ended as to the whole, and the consignor cannot stop the remainder (y).

Fox, a wine-merchant in London, having ordered five pipes of wine from Messrs. Abbott & Co. of Oporto, they loaded them on board a vessel bound for London, and took from the master bills of lading for delivery to order, or assigns. One of these bills they transmitted to Fox, in a letter, wherein they said that they had shipped the wine on his account, had sent him a bill of lading, and drawn upon him for the price. For accepted the bill of exchange thus drawn upon him, which was payable nine months after date. Before the bill of exchange became due the wine arrived, and For not being able to pay the

(u) Newsom v. Thornton, 6 East, 17.

(x) Assignees of Burghall v. Howard, 1 H. Bla. 365, note.

(y) Slubey v. Heyward, 2 H. Bla. 504. See Hammond Y. Anderson, 1 New. Rep. 69,

ante.

duties, it was sent to the king's warehouse under the statute 26 G. 3, c. 59; while it remained there, For being indebted to Mary Nix, and called upon for payment, and unable to pay, sold the wine to her for 40%. then paid to him, and the amount of his debt. He became a bankrupt soon afterwards; and the agents of the consignors having paid the duties and obtained the goods, Mrs. Nix brought an action against them for the value. It was contended at the trial, that there was no difference between the indorsement of a bill of lading by the consignor, and sending it in a letter of this import; but Lord Ellenborough, who tried the cause, held that the above circumstances had not divested the consignor of his right to stop the goods in transitu (≈).

A person having a lien on goods, but having parted with the possession of them, cannot afterwards stop them in transitu (a).

Turner, residing in Cornwall, being indebted to Staples & Co. in London, sent up 3,000 dollars to them in part-payment of his debt. Before the dollars reached Staples & Co. they had become bankrupts, and had left their house. Bowles & Co., who were also creditors of Turner, by his permission gained possession of the goods while they were in the hands of the carrier. The assignees of Staples & Co. thereupon brought an action of trover against Bowles & Co. for the value of the dollars. The cause was tried before Lord Kenyon, who said that he thought

(z) Nix v. Olive, Abbott on Shipping, 377.

(a) Sweet v. Pym, 1 East, 4.

ruptcy of Staples & Co., he might have stopped them; but here was a remittance of money not made on a particular account, or for a particular purpose, but a general remittance from a debtor to his creditor. There was an appropriation in favour of persons who were bona fide creditors; and he was therefore of opinion, that the defendants had no right to the possession of the property against the assignees of Staples & Co. The plaintiffs had a verdict (b).

If the seller stop goods in transitu, to prevent their getting into the hands of an insolvent broker, he does not thereby rescind the contract of sale; and if he afterwards offer to deliver the goods to the buyer, he may maintain an action against the buyer for the price (e).

(b) Smith v. Bowles, a Esp. 578. See 1 Gow. 58.

(c) Kymer v. Suwercropp, 1 Camp. 109.

CHAP. IX.

Of Bankruptcy, as affecting the Sale of Personal Property.

THE transfer of personal property by sale is affected by the bankrupt-laws in two ways: First, by the operation of stat. 21 Jac. 1, c. 19, by which property, which does not belong to a trader, but is allowed by the real owner to remain in his possession, and under his control, vests, in the event of his becoming a bankrupt, in the commissioners; and, secondly, by the general policy of those laws which invalidate sales made by traders, in contemplation of bankruptcy, with an intention of favouring particular creditors..

We will begin with the statute of James, which (s. 10, 11), after reciting "that it often falls out that many persons, before they become bankrupts, do convey their goods to other men upon good consideration, yet still do keep the same, and are reputed the owners thereof, and dispose the same as their own," enacts, that "if at any time hereafter any person or persons shall become bankrupt, and at such time as they shall so become bankrupt shall by the consent and permission of the true owner and proprietary, have in their possession, order, and disposition, any goods or chattels, whereof they shall be reputed owners, and take upon them the sale, alteration, or disposition, as owners, that in every

seek relief by the said commission, as fully as any other part of the estate of the bankrupt." A doubt was formerly entertained whether the enactment was not so far restrained by the recital as to be limited to the bankrupt's own property (a); but as on further consideration it was remembered that if a man had, before the statute, conveyed his own goods to a third person and remained in possession, the sale would have been void under stat. 13 Eliz. c. 5, it was at length settled that the statute of James has a wider operation, and applies to cases in which the bankrupt is in possession of the property of a third person, and is allowed to treat it as his own; but does not extend to cases where a man has possession of the goods of another as a trustee, or a factor, or as having a bare authority to sell them for the principal (b).

Mortgages and conditional conveyances of goods and chattels are within the statute, as well as absolute conveyances; therefore mortgagees of stock in trade are not to be considered to have specific liens upon the bankrupt's estate, but can only come in under the commission as general creditors; and though a mortgage of a moiety of the partnership stock be made by one partner to the other, the stock will still be considered (as to the moiety) to be in the possession,

(a) See Ryall v. Rolle, 1 Atk. 165, and 1 Ves. 348. 375, and the cases there cited.

(b) Mace v. Cadell, Cowp.

232; Bryson v. Wylie, Cooke's Bkpt. Laws, 362, and 1 Bos. & Pul. 83, note.