fected, it is impossible to say that the goods were in the visible ownership, or under the order and control, of the bankrupt.

Vaughan and Blossett, Serjts., for plaintiffs.

The Solicitor General and Tuddy, for defendants.

Verdict for plaintiff.

The right of stoppage in transitu has been largely interpreted by recent decisions. 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 *21] 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. Hob. 41. But previous to the actual delivery, or what is equivalent, the law avails itself of every circumstance 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 retract the intended delivery, and to resume possession of his goods by any means not criminal. The civil law, with respect to the right of lien on goods, extends farther than the law of England; by which, as we have above stated, the lien, giving the right of stoppage in transitu, is gone, where possession actual or constructive has been taken; 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 ulla satisfactione. Dig. lib. 18.

tit. 1. l. 19.

There is a difference, however, between this right, and the right to rescind the contract: the former may be exercised by the vendor against the will of the vendee; the latter requires the consent and concurrence of both parties. To assist the equity of this right, the cases turn on very nice distinctions. The first consideration will be, by whom this right may be exercised. 2d. Under what circumstances, after the goods have passed out of the possession of the vendor. 3d. What shall defeat the right.

I. By whom this right may be exercised.

1st. The vendor, though he purchase the goods of another for commission, may stop them in transitu. 3 East, 93. So, the consignor of goods for sale, on the joint account of himself and the consignee, in the event of the insolvency or bankruptcy of the latter. 6 East, 371. But the mere surety for the payment of the price by the vendee, though he may have accepted bills drawn upon him by the consignee for that purpose, cannot. 1 B. and P. 563. *If *22] goods be sent by order of the consignee, at his account and at his risk, and the consignor draws bills of exchange on him for the price, and indorses and transmits the bills of lading, the consignor cannot take possession of the goods at the place of destination, and insist upon immediate payment as the condition of delivery; the consignee being willing to accept the bills, and not having failed in his circumstances. Walley v. Montgomery, 3 East, 585. In the case of the Constantia, 6 Rob. 521, after a review of the law upon the subject, both of the general, civil law of Europe, and with reference to the municipal law of particular countries, Sir William Scott lays it down as the result of the cases, and as an exposition of the principles 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." If a sale be legalized by license, though the vendor be an alien enemy, he may stop in transitu. 15 East, 419. So, a principal may stop goods in transitu to his factor, though he be in advance, and has accepted bills, and paid part of the freight. 3 T. R. 119. But as a lien once parted with cannot be revived, a factor cannot stop in transitu, having parted with the possession. 1 East, 4. 3 East, 100. An actual repossession is not necessary, but a claim and endeavor to get the goods by the vendor is sufficient. 2 B. and P. 462. But the bankruptcy of the consignee is not, of itself, a countermand. 3 B. and P. 471.

II.—Under what circumstances subsequent to the contract, or after the goods have passed out of the possession of the vendor.

1. If the subject of the sale be in a mass with other matter not sold; for example, if it be part of a liquid contained in a vessel; it is conceived no delivery short of the actual separation will defeat the right of the vendor. 13 East, 525. So, if goods in mass, previous to delivery, are to be sorted, numbered, and weighed, the delivery of part from the mass will not divest *the *23] right of stopping the remainder. Harman v. Meyer, 6 East, 614. 11 East, 210. Notwithstanding an order to deliver have been given to the whartingers, and entered in their books. 2 M. and S. 397. So, in all cases where the goods are not in a deliverable state, and further acts are necessary to be done by the seller to make them so. Thus, where A. contracted to sell to B. fifty hogsheads of sugar, called double loaves, at 100s. per cwt. to be delivered free on board a particular ship, and B. sold to C. by the same description, and A. assented to the re-sale, the sugar not having been delivered or re-weighed, it was holden that C. could not recover for it in rover against A., the first vendor. Austen v. Craven, 4 Taunt. 464. The case of

Whitehouse v. Frost, 12 East, 614, may appear, on the first view, inconsistent with some of the propositions stated in this note, and at variance with the last case; but a closer inspection will warrant the principles laid down, and reconcile the cases. In the sale of the oil, in Whitehouse v. Frost, it was, from the date of the contract, to be at the purchaser's risk. Next, the specific oil was in existence, contained in a particular place and vessel named; Bancroft & Dutton, the original vendors, had made a complete transfer of the oil to the Frosts, the first vendees; they (D. & B.) had received the price, and executed the contract-as between those parties, therefore, no right of stoppage in transitu could exist.-When the Frosts sold to Townsend (whose interests the plaintiffs claimed as assignees) they gave an order on D. & B. to deliver to him: D. & B. indorse their acceptance on this order; and thereby, in the language of the court, attorn to the sale, and become bailees to Townsend." Now, although something remained to be done between Townsend, and D. & B., who had the custody of the oil, before Townsend could be put in separate possession of the part sold; yet, as between Townsend and the Frosts, nothing remained to perfect the sale; the order of delivery being simply to deliver. D. & B., therefore, by the acceptance of the order having admitted that they held the oil as the property of Townsend, he had a right to take it without the interference of the Frosts. In a word, the question was between different parties.

So, in Shipley v. Davis *and another, 5 Taunt. 617, where ten ton of hemp out of thirty [*24 were sold, the order was to weigh and deliver. In that case the court said, "If any thing remain to be done between vendor and vendee, it is no delivery."

So, in a bargain and sale of ten tons out of a merchant's stock, consisting of several large quantities of oil, in divers cisterns, in divers places, it was holden that trover would not lie for it, because there was no separation of the part sold from the rest of the stock; because the con tract did not attach upon any particular parcel of oil; nor had there been any actual delivery. In this last case, Heath, J., said, "we do not pretend to reconcile Austen v. Craven (which was the case relied upon in argument) with Whitehouse v. Frost." White v. Wilks, 5 Taunt. 177. It is trusted that the attempt made in this note to reconcile the cases, upon an investigation of the principles, may be of use to the reader. 2. A right of stoppage may be exercised though bills be given in payment, unless expressly accepted as such. 7 T. R., 64. Sed quære, if before the right of stoppage in transitu in this case be exercised, there should not be probable grounds for believing that the bills will turn out of no value. Can it be done capriciously? 3. Possession obtained by the consignee before the vessel has completed her voyage will not divest the right of stoppage in transitu. 1 Esp. N. P. 242. 4. Nor is this right divested by a foreign attachment at the suit of a creditor of the vendee. 1 Camp. 282. And a usage for land cartiers to retain goods as a security for a general balance of accounts due from the consignee, will not divest this right of the consignor, upon paying the carriage of the particular goods only. 3 B. and P. 42. 5. Goods deposited at the king's warehouses, on their arrival, for the duties, under 26 G. 3. c. 59, may be stopped in transitu, though they have been claimed by the consignee. 2 Esp. 603. 6. So, whilst they remain in possession of the carrier, whether by water or land; also, whilst they are in any place of deposit, until they arrive at the actual or constructive pos session of the consignee. 3 T. R. 466. 7. So, the master of a ship chartered wholly by the consignee, is a carrier in whose hands they may be stopped. 3 East, 381.

*III.-What shall defeat this right.

In the undermentioned cases, the actual or virtual delivery being complete, and the contract executed, the right of stoppage in transitu is divested.

[*25

1. Where goods are delivered to a packer appointed by the vendee, to forward to any port the latter may appoint, and are opened and examined by the vendee's agent. 3 B. and P. 320. 5 East, 175. 2. Where a ship has been hired by the consignee for a term of years, fitted out, victualled, and manned by him, his property put on board, and sent on a mercantile adventure, delivery of goods on board is equivalent to a delivery into his warehouse, and the right of stoppage is gone. Fowler v. M'Taggart, cited 7 T. R. 442. 3. So, delivery to a warehouseman, to whom the vendee pays warehouse rent, though they have not reached their ultimate destination. 3 B. and P. 127. 14 East, 308. 4. So, if the vendor receive of the vendee warehouse rent for the goods remaining in the warehouse, beyond the period at which they ought to have been removed. 1 Camp. 452. 5. So, where with the privity of the vendor, the wharfinger in whose custody the goods are, charges the vendee with warehouse rent. 2 Camp. 243. 6. So, if the vendee receive from the vendor an order of delivery which he lodges with the wharfinger, though no transfer be made in the wharfinger's books, ibid., provided nothing more is to be done but to make the delivery; otherwise, if the goods are to be weighed, &c. vide supra. 7. So, the change of mark from A. to B. on bales of goods in a warehouse, by the direction of the parties, was held by the House of Lords, in a modern case, to operate as an actual delivery. Per Lord Ellenborough, 14 East, 313. 8. In the same manner, when timber, to be paid for by a bill at a future day, is marked by an agent of the vendee, whilst lying at the wharf of the vendor, with his concurrence and assent, and a part delivery is made, which is sent off to the vendee's order, the right of stoppage is gone, both as to that part delivered, though it should not have reached its ultimate destination, and as to the residue. Ibid. In this case it is to be observed that two

things concurred to divest the right of the vendor; a part delivery, and a mark put upon [*26 the timber with the consent of the vendor. 9. So, the marking of goods by purchasers at the time of the contract was held to take the case out of the statute of fraud, and to be a delivery and taking possession by the vendees. 1 Camp. 235. But quære if this alone would defeat the right of stoppage in transitu? 10. So, a part delivery under a bill of lading to a sub-vendee, upon the arrival of the ship, was held to be equivalent to a full delivery. 2 H. B 504. 1 N. R. 69. Compare this case with Hanson v. Meyer, cited supra. 6 East. 614. The distinction

seems to be, that in the former case part was delivered in the name of the whole, and nothing remained to be done previous to the delivery of the remainder, but the mere act of delivery; whilst in Hanson v. Meyer, though part of the starch was delivered, the undelivered residue was yet to be weighed. 11. So, if the assignee of the vendee put his mark upon the goods whilst they are at an inn, in their way to the vendee. 3 T. R. 464. Semble, such inn must be their ultimate stage.

How far the assignment of a bill of lading, by the consignee to a third person, defeats or limits the right of the consignor to stop in transitu, vide Lickbarrow v. Mason, 2 T. R. 63. 6 East, 20. 36. n. Newson v. Thornton, 6 East, 17. Cumming v. Brown, 9 East, 506, and the cases there cited.

*27]

*LEWIS . SMITH, Esq. Treasurer of the West India Dock Company.

A letter from the plaintiff's attorney to the secretary of the West India Dock Company, claiming the delivery of some coffee, in the possession of the Company, at their Docks, adding, "that he was instructed to take legal measures, if it were not delivered forthwith," is not a notice of action within the meaning of the 39 G. 3. c. 69. s. 185; the act which incorporates the Company. Quære, if the notice of action should not be to the treasurer of the Company?

TROVER.-Woodbridge & Co. had imported thirty bags of coffee, and warehoused them in the West India Docks; they sold part of it to Cummings & Co. whilst it was lying in the Docks; and Cummings & Co., entered into a contract to sell it to the plaintiff. Lewis had paid Cummings & Co. for the coffee, and the present action was brought to recover the value from the Company, who, detained the coffee under an indemnity from Woodbridge & Co., who being unpaid had stopped it in transitu.

By the 39 G. 3. c. 69. s. 185, the Act of Parliament which incorporates the West India Dock Company, it is enacted, that no action shall be brought against the Company, without giving fourteen days' notice, in writing, of such action; and the only question in this case was, whether such notice had been given.

To show a compliance with the requisites of the Act, the plaintiff's counsel put in a letter, written by his attorney, and directed to the secretary of the West India Dock Company. In this letter, the attorney, in the name of the plaintiff, stated his title to the coffee in question, and made a regular demand of it; adding, "that he was instructed to take legal measures if it was not delivered *28] *forthwith." To this letter an answer was sent by Messrs. Kaye & Co., who acted as attorneys for the Company, stating, that they required to see the necessary documents which constituted the plaintiff's title, before they could advise their clients to give up the coffee. About three weeks after the receipt of this letter, the writ was sued out.

The Solicitor General, Lens and Best, Serjts., for the defendant, objected, that the letter sent by the attorney of the plaintiff was no notice within the Act of Parliament. The Act directs that all proceedings shall be against the treasurer for the time being, and the plaintiff has elected to sue the treasurer in the present action. But a letter to the secretary is no notice to the treasurer; granting that the letter itself was the proper and formal notice required by the Act, which they contended it was not.

Vaughan and Pell, Serjts., for the plaintiff.-The clause does not direct to whom notice shall be given. It may be given to any servant of the Company. But the answer shows that they have committed the business to their solicitor, which is a waver of all objections to the notice. If it reach the Company, and their solicitor answer it, it is sufficient. The same formal notice which is required by the 24 G. 2., when bringing an action against a magistrate, cannot be necessary in the present case. The letter gives the requisite information, You have coffee belonging to the plaintiff in your possession; if you refuse to deliver it up to him, he will commence legal proceedings against you.

[*29

*GIBBS, C. J.-This is an objection in form, but I am bound to take notice of it. The act of parliament directs that all actions shall be brought against the treasurer of the company. I do not consider this letter as a proper notice of action within the meaning of the act. It is rather a communication of courtesy. It leaves it open to conjecture what legal proceedings were in contemplation of the plaintiff, and against whom they were to be brought. The answer shows that it is a communication of this kind. The solicitors for the company do not say, we will appear. They answer, let us inspect the documents, and we will then determine whether we shall advise the company to deliver up the coffee or not. This is not a notice of action, but a mere communication.

Plaintiff nonsuited.

Vaughan and Pell, Serjts., and Comyn, for plaintiff.
Solicitor General, Lens and Best, Serjts., for defendant.

*HUCKS et al. v. THORNTON.

[*30

A vessel with liberty to chase and capture prizes, has some Spanish prisoners on board. By. means, which did not appear, they break loose, rise upon, and imprison the crew, with the exception of one sailor, who is heard upon the deck in conversation with them. The captain and crew, with the exception of this sailor, are put on shore, and the Spaniards run away with the ship. Upon a loss alleged to be by barratry of the mariners, this is evidence to be left to the jury that such barratry was committed.

Where a vessel, engaged in the Southern whale and seal fishery, and with liberty to chase and capture prizes, is insured in August, 1807, with a retrospect to the 1st of August, 1806, although at the time of her insurance she was not competent to pursue all the purposes of her voyage, her crew being reduced by death and casualties; if she had a competent force to pursue any part of her adventure, and could be safely navigated home, she is to be deemed seaworthy.

ACTION on a policy of insurance on the ship Vigilant, dated August 19th, 1807; to commence on the 1st of August, 1806; lost or not lost; with or without letters of marque; with liberty to chase, capture, and man prizes; and to see and take them into port, &c. The loss was alleged to be by the barratry of the mariners, &c. The ship left England in 1805; she was licensed to sail without convoy; her burthen was 199 tons, with 10 guns, and 24 men. In July, 1806, she had been reported safe. During her voyage she had made several prizes, and a short time before the loss, which was the subject of the present action, she had taken a Spanish vessel. Her original adventure was the whale fishery, and she had taken one whale of 36 gallons; but she had latterly desisted from this part of her adventure, and was principally employed in the seal fishery. In the autumn of 1806, she had on board some Spanish prisoners. By some means, which did not appear in evidence, they were let loose; they rose upon the crew, murdered the mate, and confined the captain and sailors, with the exception of one man, whose name was Brookson, in the steerage. The sailor, who was left at liberty, *appeared to be acting in confederacy with the mutineers. The captain and crew, with the exception of this [*31

man, were put on shore on the Spanish main, and marched up to Quito; and the mutineers ran away with the ship. At the time of the capture, the crew was reduced to nine men and a boy. It was in evidence that the crew had suffered by death and desertion since leaving England, and at the time to which the insurance referred, they did not exceed nine men and a boy, though five prisoners were on board. It appeared that the prisoners had been properly confined, though occasionally suffered to come out for air and exercise. It was in evidence that, with a crew so reduced, it was impossible to pursue the whale

fishery, and keep a proper guard over the prisoners; but that the crew was sufficient for the seal fishery and other purposes of the voyage, and likewise to navigate the vessel to England.

The Solicitor General, Best, Serjt., and Spankie, for the defendant, made two objections.

1. No barratry. The Spanish prisoners rose upon the crew and ran away with the ship. The plaintiffs may allege any species of loss; they might have alleged simply that she was taken by the Spanish prisoners. They have chosen to ascribe the loss to barratry. If the crew assisted the prisoners in seizing the ship, or were passive and permitted them to take her, that would be barratry; but the present case afforded no evidence of that sort. Did it follow that Brookson was a *mutineer, because not made a prisoner with *32] the rest of the crew. The insurgents might want an English sailor to navigate the vessel. Nothing is more common than for prisoners or mutineers, who rise upon a crew, to spare the captain or some skilful sailor to navigate the ship. He might be obliged to submit to a compulsive force; all the evidence of barratry against him was, that he was heard upon deck talking to the Spanish prisoners, and that he was not confined with the rest of the crew. Supposing Brookson on his trial, is this evidence to convict him.

2. The plaintiffs are bound to show that the Vigilant was seaworthy on the 1st of August, 1806. This was not an insurance from place, but the plaintiffs undertake that, upon the 1st of August, 1806, she had a proper and sufficient crew on board. No matter what her force was when she sailed from England; she still continued to claim the same privileges, to chase, capture and man prizes, and to pursue the whale and seal fishery. She was taken, moreover, upon whaling ground. As respects the insurers, the 1st of August was the inception of her voyage. For a ship of this burthen of ten guns, so employed, with prisoners on board, could nine men and one boy be a sufficient

crew?

Lens, Serjt., for the plaintiffs, admitted that she must be seaworthy on the 1st of August, 1806; but allowing that, for the beneficial purposes of her voyage, the whale fishery, she had not a sufficient crew; nevertheless, if the crew; were sufficient for the other purposes, if she could be safely navigated, *33] and such prisoners as she had on board properly guarded, she might be pronounced seaworthy. The underwriters have all they want, the fair security of the ship. She went out at first manned for both purposes; she might abandon that part of her adventure which required greater force than she possessed, and pursue that branch only for which she was competent.

GIBBS, C. J.-Uudoubtedly this policy had a retrospect to the 1st of August, 1806. Whether there be barratry or not proved is a question for the jury. There is pregnant evidence that Brookson was concerned with the prisoners; but the most important question is, was this vessel seaworthy in August, 1806? The state of things when this insurance was effected must have been known to the underwriters; they knew that it was an adventure, the circumstances of which must fluctuate from time to time, and that the duty of the plaintiff's would necessarily change with them. When they commenced the adventure the vessel might chase, capture, and man prizes; she might at that time prosecute all or any part of her adventure; she had then a sufficient and disposable force for every purpose: but when, by casualties or other circumstances, the crew was reduced, it would have been a breach of duty in the captain to have prosecuted that part of her adventure which required greater force than the vessel possessed: but other objects might still be within her compass. If she had a competent crew to pursue any part of her adventure, it being at her election *34] to pursue what part *she chose, she might be deemed seaworthy within this policy. The force, in the contemplation of all parties, must fluctuate from time to time. If the crew could perform some of the objects of their adventure with safety, and navigate the vessel home, she cannot be called