say, he may resume possession of the goods as long as they are in course of transit, and may retain them until payment or tender of the price (78).

Goods are deemed to be in course of transit from the time when they are delivered to a carrier by land or water, or other bailee for the 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 (79).

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 (80).

If after the arrival of the goods at the appointed destination, the carrier or other bailee acknowledges to the buyer, or his agent, that he holds the goods on his behalf and continues in possession of them as bailee 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 (81).

If the goods are rejected by the buyer, and the carrier or other bailee 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 (82). An insolvent buyer may thus refuse to take possession of the goods, and so prolong the transit, and his conduct

(78) Stat. Man. 1896, c. 25, s. 41; R.S.B.C. c. 169, s. 54; Con. Ord. N.W.T. c. 39, s. 42.

(79) Stat. Man. 1896, c. 25, s. 42 (1); R.S.B.C. 1897, c. 169, s. 55; Con. Ord. N.W.T. c. 39, s. 43 (1).

(80) Stat. Man. 1896, c. 25, s. 42 (2); R.S.B.C. 1897, c. 169, s. 55 (2); Con. Ord. N.W. T. c. 39, s. 43 (2).

(81) Stat. Man. 1896, c. 25, s. 42 (3); R.S. B.C. 1897, c. 169, s. 55 (3); Con. Ord. N. W. T. c. 39, s. 43 (3).

(82) Stat. Man. 1896, c. 25, s. 42 (4); R.S. B.C. 1897, c. 169, s. 55 (4); Con. Ord. N.W.T. c. 39, s. 43 (4).

does not amount to a fraudulent preference in favour of the seller (83).

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 possession of the master as a carrier, or as agent to the buyer (84).

Where the carrier or other bailee, wrongfully refuses to deliver the goods to the buyer, or his agent in that behalf, the transit is deemed to be at an end (85). So where the goods had reached their destination and the consignee had tendered the freight and demanded the goods, and would have taken possession of them but for the wrongful delivery of them to other parties, the transit was held to be terminated (86).

Where part delivery of the goods has been made. to the buyer, or his agent in that behalf, the remainder of the goods may be stopped in transitu, unless such part delivery has been made under such circumstances as to show an agreement to give up possession of the whole of the goods (87).

The unpaid seller may exercise his right of stoppage in transitu either by taking actual possession of the goods, or by giving notice of his claim to the carrier or other bailee in whose possession the goods. Such notice may be given either to the person in actual possession of the goods, or to his principal.

are.

(83) Benjamin on Sales 4th ed. 487; Ker & Pearson-Gee's Sale of Goods Act 248.

(84) Stat. Man. 1896, c. 25, s. 42 (5); R.S.B.C. 1897, c. 169, s. 55 (5); Con. Ord. N.W.T. c. 39, s. 43 (5).

(85) Stat. Man. 1896, c. 25, s. 42 (6); R.S.B.C. 1897, c. 169, s. 55 (6); Con. Ord. N. W.T. c. 39, s. 43 (6).

(86) Bird v. Brown (1850) 4 Exch. 786.

(87) Stat. Man 1896, c. 25, s. 42 (7); Con. Ord. N.W.T. c. 39, s. 43 (7); R.S.B. C. c. 169, s. 55 (7).

In the latter case the notice, to be effectual, must be given at such time and under such circumstances that the principal, by the exercise of reasonable diligence, may communicate it to his servant or agent in time to prevent a delivery to the buyer (88).

When notice of stoppage in transitu is given by the seller to the carrier, or other bailee in possession of the goods, he must re-deliver the goods to, or according to the directions of, the seller, and the expenses of such re-delivery must be borne by the seller (89).

But a notice given by the seller to hold the proceeds of the sale of the goods subject to his order, is not an effectual stoppage, because the seller expresses no intention of re-taking possession of the goods (90).

The unpaid seller's right of stoppage in transitu is not affected by any sale or other disposition of the goods which the buyer may have made unless the seller has assented thereto; provided that where a document of title to goods has been lawfully transferred to any person as buyer or owner of the goods, and that person transfers the document to a person who takes the document in good faith and for valuable consideration, then, if such last mentioned transfer was by way of sale the unpaid seller's right of stoppage in transitu is defeated; and if such last mentioned transfer was by way of pledge or disposition for value, the right of stoppage in transitu can only be exercised subject to the rights of the transferee (91).

The facts in a recent English case were that one

(88) Stat. Man. 1896, c. 25, s. 43 (1); R.S. B.C. 1897, c. 169, s. 56 (1); Con. Ord. N. W. T. c. 39, s. 44.

(89) Stat. Man. 1896, c. 25, s. 43 (2); R.S.B.C. 1897, c. 169, s. 56 (2); Con. Ord. N.W. T. c. 39, s. 44 (2).

(90) Phelps v. Comber (1885) 29 Ch. D. 822.

(91) Stat. Man. 1896, c. 25, s. 44; R.S.B.C. 1897, c. 169, s. 57; Con. Ord. N.W.T. c. 39, s. 45.

Steinman had consigned the goods in question to one Pintscher, to whom Steinman sent the bill of lading, accompanied by a bill of exchange for the price. Pintscher refused to accept the bill of exchange, but kept the bill of lading, and in fraud of Steinman sold the goods to the plaintiffs, and indorsed the bill of lading to them, and they paid him the price. Steinman thereupon stopped the goods in transitu, and the action was brought to recover the goods by virtue of the title conferred on the plaintiffs as bona fide indorsees of the bill of lading. The Court of Appeal held that, as the plaintiffs had taken the bill of lading in good faith without notice of the rights of Steinman, from a person who held possession of it with the consent of Steinman, they had acquired a good title, and that Steinman was not as against them entitled to stop the goods in transitu (91a.)

Re-sale by unpaid vendor B.C., N.W.T., and Manitoba. If the unpaid seller, who has exercised his right of stoppage in transitu, re-sells the goods, the buyer acquires a good title thereto as against the original buyer (92). But the exercise of the right must be lawful and must be justified by reason of the buyer's insolvency (93).

Where the goods are of a perishable nature, or where the unpaid seller gives notice to the buyer of his intention to re-sell and the buyer does not within a reasonable time pay or tender the price, the unpaid seller may re-sell the goods, and recover from the original buyer damages for any loss occasioned by his

(91a) Cahn v. Pocketts Co. (1899) 1 Q.B. 643.

(92) Stat. Man. 1896, c. 25, s. 45 (2); R.S.B.C. 1897, c. 169, s. 58 (2); Con. Ord. N.W.T. c. 39, s. 46 (2).

(93) Ker & Pearson-Gee's Sale of Goods Act, 266.

breach of contract (94); and where the seller expressly reserves a right of re-sale in case the buyer should make default, and on the buyer making default re-sells the goods, the original contract of sale is thereby rescinded, but without prejudice to any claim the seller may have for damages (95). Subject, however, to the provisions just stated a contract of sale is not rescinded by the mere exercise by an unpaid seller of his right of stoppage in transitu (96).

Ontario Transfer of bills of lading.--By the Mercantile Amendment Act of Ontario (97) it is enacted that every consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned passes upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of action, and be subject to the same liabilities in respect of the goods as if the contract contained in the bill of lading had been made to himself; but express provision is made that this shall not prejudice or affect any right of stoppage in transitu, or any right to claim freight against the original shipper or owner, or any liability of the consignee or endorsee, by reason or in consequence of his being such consignee or endorsee, or of his receipt of the goods by reason or in consequence of such consignment or endorsement (98).

(94) Stat. Man. 1896, c. 25, s. 45 (3); R.S.B.C. 1897, c. 169, s. 58 (3); Con. Ord. N.W. T. c. 39, s. 46 (3).

(95) Stat. Man. 1896, c. 25, s. 45 (4); R.S.B.C. 1897, c. 169, s. 58 (4); Con. Ord. N. W.T. c. 39, s. 46 (4).

(96) Stat. Man. 1896, c. 25, s. 45 (1); R.S.B.C. 1897, c. 169, s. 58 (1); Con. Ord. N. W. T. c. 39, s 46 (1).

(97) R.S.O. 1897, c. 145.

(98) Sec. 5.