purpose of transmission to the buyer, until the buyer or his agent in that behalf, takes delivery of them from such carrier or other bailee or custodier. If the buyer or his agent in that behalf obtains delivery of the goods before their arrival at the appointed destination, the transit is at an end. If, after the arrival of the goods at the appointed destination the carrier or other bailee or custodier acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee or custodier for the buyer or his agent, the transit is at an end, and it is immaterial that a further destination for the goods may have been indicated by the buyer. It can only be said that goods are sent to their 'destination' when they are sent to the purchaser, or to the person to whom he directs them to be sentto a particular person at a particular place. That is the meaning of destination' in a business sense. In business destination' means that there must be given not only the name of the place to which, but also the name of the person to whom, goods are to be sent (12). Goods are deemed to be in transitu not only while they remain in the possession of the carrier, whether by water or land, and although such carrier may have been named and appointed by the consignee, but also when they are in any place of deposit, connected with the transmission and delivery of them, having been there deposited by the person who is carrying them for the purpose of transmission and delivery, until they arrive at the actual possession of the consignee, or at the possession of his agent, who is to hold them at his disposal and to deal with them accordingly (13). If the vendee take them out of the possession of the carrier into his own before their arrival, with or (12) Ex parte Miles (1885) 15 Q.B. D. 39, 44. without the consent of the carrier, there seems to be no doubt that the transit would be at an end, though in the case of the absence of the carrier's consent it may be a wrong to him for which he would have a right of action (14). The arrival which is to divest the vendor's right of stoppage in transitu must be such that the buyer has taken actual or constructive possession of the goods, and that cannot be so long as he repudiates them (15). And if the goods are rejected by the buyer, and the carrier or other bailee or custodier continues in possession of them, the transit is not deemed to be at an end, even if the seller has refused to receive them back. When goods are delivered to a ship chartered by the buyer it is a question depending on the circumstances of the particular case, whether they are in the possession of the master as a carrier, or as agent to the buyer (16). The delivery in the purchaser's own ship is, however, a final delivery at the place of destination (17). Where goods are sold and by the terms of the bargain they are to be sent to a particular designation, the transitus is not at an end until the goods have reached the place named (17a); but with this exception, that if the vendee gets the goods from the carrier before they arrive at such place, the transit is at an end. The real test is not what is said but what is done (18). The consignee may require the goods to be delivered (14) Whitehead v. Anderson (1842) 9 M. & W. 518. (16) VanCasteel v. Booker (1848) 2 Ex. 691. (17) Schots:mans v. Lancashire Co. (1867) L.R. 2 Ch. 332. (17a) Coates v. Railton 6 B. & C. 422; Kendall v. Marshall 11 Q. B. D. 356. (18) Kendall v. Marshall 11 Q. B.D. 356, 360. to him at any stage of the journey (19). And although the goods may not have reached their ultimate destination, yet if they have so far got to the end of their journey that they await new orders from the purchaser to move them, and without such orders they would remain where they are, the transitus is ended (20). Where part of the goods sold by one entire contract is taken possession of by the vendee, without any intention on the vendor's part of retaining the rest, but as a step towards and in progress of the delivery of the whole, such is the taking possession of the whole (21). So long as the goods remain in the possession of the carrier as such, even though the carrier may have been appointed by the consignee himself, they are to be deemed in transitu until they come into the actual or constructive possession of the consignee (22). Wherever it is part of the bargain between the vendor and the vendee that the transit shall last up to a certain time, the transit continues until that time has arrived (23); but if goods are bought to be afterwards despatched as the vendee may direct, and it is not part of the bargain that the goods shall be sent to any particular place, in that case the transit only ends when the goods reach the place ultimately named by the vendee as their destination (24). (19) London & N.W.Ry. v. Bartlett 7 H. & N. 400; Fraser v. Witt L.R. 7 Eq. 64. (20) Dixon v. Baldwin 5 East, 186; Ex. p. Miles 15 Q. B. D. 44 3 Bethell v. Clark 20 Q.B.Ď. 619; Lyons v. Hoffnung 15 App. Cas391. (21) Hammond v. Anderson 1 B. & P. N.R. 69; Ex. p. Cooper 11 Ch. D. 68. (22) Ex. p. Rosevear 11 Ch. D. 560; Ex. p. Barrow 6 Ch. D. 783 (23) Ex. p. Watson 5 Ch. D. 35. (24) Kendal v. Marshall 11 Q.B.D. 356, 369, per Bowen, L. J. A seizure under an attachment commencing an action, or before judgment recovered, does not prevent the exercise of the right (25); but if goods in transit are seized by a sheriff under an execution upon a judgment recovered and are removed from the custody of the carrier, the transitus is at an end and the consignor cannot after such removal exercise the right (26). The right is equally defeated whether the vendee obtains possession of the goods at the termination of the transitus as originally intended, or at some intermediate point; and whether the possession of the goods be obtained by the vendee himself, or by his agent who obtains them for the purpose of holding them, or by an assignee in bankruptcy, or a sheriff deriving his authority from the court to take the goods of the vendee (27). When goods are placed in the warehouse of a third party who has been in the habit of receiving goods for the purchaser and holding them as his agent until he takes them away, the transit is at an end, although the warehouseman does not charge any rent (28). Where bill of lading assigned. If the consignee named in the bill of lading should become insolvent, without having paid for the goods, yet his unconditional transfer of the goods and the bill of lading, if made for a valuable consideration and without the assignee having received notice that the goods were not paid for and that the consignee was insolvent, or that the goods were paid for by bills sure to be dis (25) McLean v. Breithaupt 12 Ont. App. 383; Durgy Cement Co. v. O'Brien 123 Mass. 12; Buckley v. Furness 15 Wend. (N. Y.) 137. (26) Couture v. McKay (1889) 6 Man. Rep. 273. (27) Couture v. McKay (1889) 6 Man. R. 273; Blackburn on Sale 397. (28) Wiley v. Smith 1 Ont. App. 179, 195; 2 Can. S.C. R. 1. honoured, will pass the goods absolutely to the assignee, and deprive the consignor of the right of stoppage in transitu which, as against the original consignee, he might have exercised (29). But mere knowledge by the endorsee that the goods have not been paid for does not defeat his rights; to effect that result the knowledge must be of such circumstances as render the bill of lading not fairly and honestly assignable (30). Where the bill of lading has been transferred by way of pledge only, a qualified right of stoppage remains, and, on the claim of the pledgee being discharged, the right is exactly the same as if there had been no security as against the original purchaser and those claiming under him (31); and, in equity, the vendor may, by giving notice to the pledgee during the transit, resume, subject to the pledgee's claim, his former interest in the goods and will after such notice be entitled to the residue of the proceeds after the pledgee's demand has been satisfied (32 )The right of stoppage in transitu cannot, however, be exercised as against the purchase money payable by a sub-purchaser to his vendor, as the right is, in its nature, one which is applicable only to the goods (32a) A pre-existing debt is a valuable consideration which will support a transfer of a bill of lading as against a right of stoppage (33). (29) Lickbarrow v. Mason 2 T. R. 63, 5 T.R. 683; Gurney v. Behrend 3 E. & B. 622; The Marie Joseph L. R. 1 P.C. 219. (30) Cuming v. Brown 9 East 506; Salomons v. Nissen 2 T.R. 674. (31) Kemp v. Falk 7 App. Cas. 577, per Selborne L.C. (32) Re Westzinthus 5 B. & Ad. 817; Berndtson v. Strang L.R. 3 Ch. 588; Rodger v. Comptoir d'Escompte de Paris L. R. 2 P.C. 393; Kemp v. Falk 7 App. Cas. 573 (32a) Kemp v. Falk 7 App. Cas. 573, 583; Contra, Ex. p. Golding 13 Ch. D. 628. (33) Clementson v. Grand Trunk Ry. 42 U.C.R. 263; Leask v. Scott 2 Q.B.D. 376. |