son.

Dobson v. Wil- I think this is no objection to the action. The plaintiff, by proceeding at law, takes that difficulty upon himself; and, if he is not prepared to overcome it, he cannot succeed. Nor does the multiplicity of actions which may thus be brought appear a ground on which I can hold that relief must be sought in equity. If there is no valid objection upon principle to a particular action, I know not how I can turn round the plaintiff by saying, that an inconvenient number of similar actions may be commenced. I cannot perceive why the shipper of goods may not maintain an action at law for general average, as well as the owner of the ship. 2. I must see, however, that this is a case in which general average can be claimed ; and I am of opinion that it is not. Is there here any thing like a jactus mercium levandæ navis gratiá? A jettison to lighten the ship is not the only foundation of general average ; but it must arise from that, or something analogous. The distinction between general and particular average would otherwise be entirely abolished; and the shippers of goods would be called upon to contribute to losses from which they derive no benefit, and which ought to fall exclusively on the ship-owner. Here the agent of the ship arrests the person of the master, (both being agents of the owner,) who had undertaken to carry the whole cargo safely to its destined port. This is different from the arrest of the captain by a foreign force. Even there I am not aware it has ever been held that the master is so inseparably united to the ship, that to redeem him it is lawful to sell a part of the cargo, The process of the court of justice at Copenhagen was not directed against the ship, and was confined entirely to the person of the master; it was merely an arrest for a personal debt. I was at first struck by what was said about the Sound dues; and, had the ship been seized for non-payment of these, I should have thought the sale of a part of the cargo to pay them, in the absence of all other means to raise money for that purpose, might have been the foundation of a claim for general average. But these dues had been paid to the Danish government by Parker, the ship's agent; and the money so paid merely constituted a private debt due to him, which he sought to recover by process against the person of the master. It comes to this; whether, if the captain be severed from the ship, whatever be the cause, he may sell a part of the cargo to redeem himself? I see no distinction between this arrest for debt, and an arrest for an assault which he might have committed in the streets of Copenhagen. No case has been cited, or principle advanced, to shew that a claim for general average can arise from an act done to redeem the master of a ship from

to contribute to

such an imprisonment. I, therefore, do not think that any part What is bound of the plaintiff's goods was sacrificed for the safety of the ship and general avethe residue of the cargo, in such a manner as to give them a right rage. to a contribution from the other shippers of goods on board. Their proper remedy is against the owner of the ship."

XXIII. In the assessment of the several shares of the parties to a general average, the proportion is usually fixed by accountants. By the civil law the captain, as the representative of the owners, and in a degree of the freighters collectively, was empowered to settle the several proportions to a general average, and to receive the sums from each. The same rule prevails in some foreign countries. But, in England, the practice is for the broker or shipagent to make a settlement of the average, which settlement, however, is not conclusive, although (when the principle of contribution is not disputed) according to the forms of business it is usually paid. And in the case of a general ship the master usually takes a security, before the delivery of the goods, for payment of any general average which may have arisen, and after the same shall be adjusted.

XXIV. It is a maxim however of the law of England, that the lenders upon bottomry and respondentia shall neither contribute to general average or salvage. The reason is, that they stipulate for a sum certain, and under the sole contingency of the arrival of the ship and cargo at the port of destination. It is not an understood condition between the parties, that the quantum of the sum lent shall be subject to any diminution short of a total loss. Lenders upon this security have no property in the goods or ship, and do not therefore fall within any of the principles of general average.

496

CHAPTER VIII.

OF STOPPAGE IN TRANSITU.

Of the nature of stoppage in transitu.

THIS is a very large and important head in the commercial law of this country, and as general average, where the occasion of it may arise, is one of the onerous obligations of the merchant and freighter, so stoppage in transitu, or the right of an unpaid vendor or consignor to countermand the delivery of the cargo, where the insolvency of the vendee or consignee shall intervene between the consignment and the arrival, is one of the merchant's and freighter's most valuable privileges; and, upon the liberal principles under which it is now admitted by the courts of law, is one of the best securities against fraud in commercial dealing. We have touched shortly upon this head in the Chapter on Bills of Lading: but it now becomes necessary to discuss it at length.

I. The right of stoppage in transitu has been largely interpreted by recent decisións. It is no longer vigilantly guarded, and jealously admitted by the courts of law, as a merely equitable right: but is justly adopted as within the spirit and principle of the common law. It is a principle of law that the sale of goods passes them by force of the contract, and delivery is not necessary to accomplish the title of the vendee against any but the vendor. Whilst the goods remain in the hands of the vendor, he has a lien upon them till he is paid. Our oldest law books, following therein the letter of the civil law, consider the payment of the price, (day not being given) as a condition precedent implied in the contract of sale. (a) But previous to the actual delivery, or what is equivalent, the law avails itself of very slight circumstances to put the unpaid vendor in the repossession of his property upon the insolvency of the vendee. The vendor, therefore, has a right, for just cause, to revoke the intended delivery, and to resume possession of his goods by any means not criminal. The civil law, with re

(a) Hob. 41.

spect to the right of lien on goods, extended farther than the law of England; by which, as we have before stated, the lien giving the right of stoppage in transitu is gone, where possession actual or constructive has been taken by the vendee: but the lien of the civil law prevailed even against actual possession. Quod vendidi non aliter fit accipientis, quam si aut pretium nobis solutum sit, aut satis eo nomine factum, vel etiam fidem habuerimus, emptori sine ullá satisfactione. (a)

The right of stoppage in transitu must be exercised ad

versely to the

II. There is a marked distinction, however, between this right, and the right to rescind the contract. The rescission of the contract requires the consent and concurrence of both parties. But, in stoppage in transitu, the vendor must always exercise the right vendee. adversely with respect to the vendee, lest, what the law has given as an equitable right for the security of an honest vendor, might be converted, by collusion, into the means of fraudulent preference amongst the creditors of an insolvent.

III. In a case before Lord Ellenborough, the consignee of a cargo, after an act of bankruptcy, delivered up the bills of lading to a third person, upon an agreement that he should apply the proceeds of the sale to the payment of some bills of exchange given for the cargo; and, in order to render this transaction more valid, the consignee procured the consignor to avow and adopt the act of such third party, as the exercise of his own right of stoppage in transitu. The court held this transaction to be collusive, and the assignees recovered the value of the cargo. (b)

subject.

IV. But the legal exercise of this right will be best understood Division of the by considering it in the three divisions into which it naturally distributes itself. First, In what cases, and by what parties, goods may be stopped in transitu. Secondly, What is a transit; how far does it cxtend; and where terminate? And, Thirdly, What shall defeat the right?

First, In what cases, and by what parties, goods may be stopped in transitu.

V. Here the general rule may be stated to be, that, as stoppage in transitu is the right of an unpaid vendor to countermand the ultimate delivery of the goods for the sake of securing the payment, or recovering the goods, in the event of the insolvency of the buyer; so, this right not only belongs to every unpaid vendor, but to every one in the same equity and character.

(a) Dig. lib. 18. tit. i 1. 19. and see Abbott on Shipping-under this title; a most learned illustration of this

branch of our law.

(b) Siffkin and Another v. Wray, 6 East. 371.

In what cases and by what

parties goods may be stopped

in transitu.

VI. The most simple application of this rule is, where the consignor has sent the cargo on credit to the consignee, and where the consignee has failed before the arrival and actual or constructive delivery. Here the consignor has an undisputed right to stop the goods in transitu, this being the first form in which the courts of law adopted the principles and doctrine of stoppage in transitu from the courts of equity. (a) But as stoppage in transitu, as above said, is not the right of rescinding the contract, but merely of holding the goods back, as in lien, till the price be paid; and, upon non-payment, of receiving them back altogether; so the insolvency of the buyer is a necessary circumstance, in the absence of which it cannot be exercised by the vendor. Upon this principle of the right of stopping in transitu not being a right to rescind the contract, it was holden that a freighter had no right to countermand the delivery of a cargo, where he had transmitted the bill of lading; and sent the goods to a correspondent of mutual dealings, in trust to pay certain acceptances given on the faith of the consignment. (b) Upon the same principle, where the consignor had sold goods at a certain credit expressed in bills drawn at so many months after date, and had sent the cargo on the account and at the risk of the buyer, together with the bills for acceptance; it was holden that such consignor could not stop the goods on their arrival, and insist upon immediate payment as the condition of delivering them, the consignee being willing to accept the bills, and not having failed in his circumstances. (c)

VII. Upon the same principle, in the case of the Constantia, (d) decided in the Court of Admiralty, Lord Stowell expresses it as the result of the cases, and as a principle of the mercantile law, "that persons having accepted orders, and made a consignment, have not a right to vary the consignment, except in the sole case of insolvency. The alteration may be made provisionally, without actual insolvency: but, if the insolvency do not take place, the act which has been done is a mere nullity, and the seller has exercised a power to which the law does not ascribe any legal effect." The