aggravation, although the special damage be proved, yet if the damages recovered are under 40s. there shall be no more costs than damages. If some of the counts in the declaration be for words that are actionable?, and others for words not actionable, and special damage be laid referring to all the counts, and there be a general verdict for plaintiff, he is entitled to full costs, though he recover less than 40s. damages.

In a case where the declaration embraced two distinct objects, viz. a charge for speaking words actionable in themselves, and a charge that defendant procured plaintiff to be indicted, without probable cause, for felony; it was holden, that such an action, not being merely an action for words, but also an action on the case for a malicious prosecution, was not within the statute; and, therefore, although plaintiff recovered damages under 40s. yet he should be entitled to full

costs.

In cases within the statute, if damages are under 40s. plaintiff cannot, have more costs taxed than the damages, notwithstanding defendant has justified'.

p Savile v. Jardine, 2 H. Bl. 531.

q Topsall v. Edwards, Cro. Car. 163. Blizard v. Barnes, Cro. Car. 307. S. P.

r Halford v. Smith, 4 East, 567. S. P.

said, per Clive, J., in Bartlet v. Robbins, to have been determined in the court of B. R. 2 Wils. 258. E. 5 G. 3.

CHAP. XXXVII.

STOPPAGE IN TRANSITU.

Nature of this Right-Who shall be considered as capable of exercising it-Where the Transitus may be said to be continuing-Where determined-How far the Negociation of the Bill of Lading may tend to defeat the Right.

NATURE of the Right of Stopping in Transitu.-When goods are consigned upon credit by one merchant to another, it frequently happens that the consignee becomes a bankrupt or insolvent, before the goods are delivered. In such case the law, deeming it unreasonable that the goods of one person should be applied to the payment of the debts of another, permits the consignor to resume the possession of his goods. This right, which the consignor has of resuming the possession of his goods, if the full price has not been paid, in the event of the insolvency of the consignee, is technically termed the right of stopping in transitu. The doctrine of stopping in transitu owes its origin to courts of equity, but it has since been adopted and established by a variety of decisions in courts of law, and is now regarded with favour as a right which those courts are always disposed to assist. The following cases will illustrate the nature of this right. B. at London, gave an order to A. at Liverpool, to send him a quantity of goods. A. accordingly shipped the goods on board a ship there, whereof the defendant was master, who signed a bill of lading to deliver them in good condition to B. in London. The ship arrived in the Thames, but B. having become a bankrupt, the defendant was ordered, on behalf of A., not to deliver the goods, and accordingly refused, though the freight was tendered. It appeared, by the plaintiffs' witnesses, that no particular ship was mentioned, whereby the

a Assignees of Burghall, bankrupt, v. Howard, London Sittings after Hil. T, 32 G. 2. coram Lord Mansfield, C. J., 1 H. Bl. 366. n.

goods should be sent, in which case the shipper is to be at the risk of the perils of the seas. An action on the case upon the custom of the realm having been brought against the defendant as a carrier, Lord Mansfield was of opinion that the plaintiffs were not entitled to recover, and said, he had known it several times ruled in Chancery, that where the consignee becomes a bankrupt, and no part of the price has been paid, that it was lawful for the consignor to seize the goods before they come to the hands of the consignee or his assignees; and that this was ruled, not upon principles of equity only, but the laws of property. The plaintiffs were nonsuited.

The right of stopping in transitu does not proceed on the ground of rescinding the contract, but, in the language of Lord Kenyon, it is an equitable lien adopted by the law, for the purposes of substantial justice. Hence the circumstance of the vendee having paid in part for the goods will not defeat the vendor's right of stopping them in transitu; the vendor has a right to retake them, unless the full price of the goods has been paid; and the only operation of a partial payment is to diminish the lien, pro tanto.

The cases which have been decided on this subject may be arranged under the following divisions: 1st, who shall be considered as capable of exercising the right of stopping in transitu; 2dly, under what circumstances the transitus shall be considered as continuing; 3dly, when the transitus shall be considered as determined; and lastly, where the right of the vendor has been defeated by the negociation of the bill of lading.

1. Who shall be considered as capable of exercising the right of stopping in transitu.-As to the first division, I am aware of two cases only, in which the subject has been brought under the consideration of the court, viz. Feise v. Wray, 3 East, 93. and Siffken v. Wray, 6 East, 371. From these cases it may be collected, that if the party exercising the right stand in the relation of vendor, quoad the bankrupt or insolvent, it is sufficient; but that a mere surety, for the price of the goods, is not entitled to stop them in transitu. The case of Feise v. Wray was shortly this: B., a trader in England, gave an order to C., his correspondent abroad, to purchase a quantity of goods for him. C. bought the goods accordingly of another merchant, (who was a stranger to B. and had not any account or correspondence with him,) and

b Hodgson v. Loy, 7 T. R. 440. recognised in Feise v. Wray, 3 East, 93.

and post.

c Feise v. Wray, 3 East, 93.

shipped them on board a general ship, on the account and risk of B.; the bill of lading was filled up to the order of B. C. drew bills of exchange on B. for the price of the goods, including also a charge for commission. These bills were accepted, but not paid; for, before the goods arrived, B. became a bankrupt; whereupon C. authorized his agent in England to obtain possession of the goods on their arrival, which he did accordingly. An action of trover having been brought by the assignees of B., against the agent of C., to recover the value of the goods, it was contended, on the part of the plaintiffs, that the right of stopping in transitu did not attach between B. and C.; that B. must be considered as the principal for whom the goods were originally purchased, and that C. was only his factor or agent, purchasing them on his account, and that the right of stopping in transitu did in point of law apply solely to the case of vendor and vendee; but per Lawrence, J.," if that were so, it would nearly put an end to the application of that law in this country; for I believe it happens, for the most part, that orders come to the merchants here, from their correspondents abroad, to purchase and ship certain merchandise to them; the merchants here, upon the authority of those orders, obtain the goods from those whom they deal with; and they charge a commission to their correspondents abroad, upon the price of the commodity thus obtained. It never was doubted but that the merchant here, if he heard of the failure of his correspondent abroad, might stop the goods in transitu. But, at any rate, this is a case between vendor and vendee; for there was no privity between the original owner of the goods and the bankrupt; but the property may be considered as having been first purchased by C., and again sold to B. at the first price, with the addition of his commission upon it. He then became the vendor as to B., and consequently had a right to stop the goods in transitu, unless he is estopped by the circumstance of B. having accepted bills for the amount, which bills, it is contended, may be proved under B.'s commission, and are equivalent at least to part payment of the goods; but it was decided, in Hodgson v. Loy, 7 T. R. 440. that part payment for the goods does not conclude the right to stop in transitu; it only diminishes the vendor's lien, pro tanto, on the goods detained. Then, having lawfully possessed himself of them, he has a lien on them till the whole price be paid, which cannot therefore be satisfied by shewing a part payment only. It is possible that part payment may be obtained by proving the bills under B.'s commission; but if the loss must fall on one side or the other, the maxim applies, "Qu

prior est tempore potior est jure." The court were of opinion, that the assignees were not entitled to recover.

The facts of the case in Siffken v. Wray, were as follow: B., a trader in London, ordered goods to be shipped to him by C. his correspondent at Dantzic, with directions to C. to draw for the amount on D. at Hamburgh, (who had agreed to accept the bills, upon receiving a commission on the amount), and to transmit the bills of lading and invoices to D., who was to forward them to B. in London. The goods were shipped, D. accepted the bills, and on the receipt of the bills of lading, transmitted the same (which were made out to the orders of the shippers and not indorsed) to B. in London, who received them, together with the invoices and letter of advice, five days after he had committed an act of bankruptcy. D.'s acceptances were afterwards dishonoured, whereby C. was obliged to take up the bills of exchange. J. S, the agent of D. in England, procured from B. the bills of lading, upon an undertaking that he would dispose of the goods, on their arrival, to the best advantage, and apply the proceeds to the discharge of the bills drawn against them. J. S. having obtained possession of the goods, sold them, and paid the proceeds into the Court of Chancery, to abide the verdict in an action directed by that court to be brought by the assignees of B. against J. S. C., having been apprised of what had been done by J. S., wrote a letter, signifying his approbation of J. S.'s conduct, and therein claimed the proceeds. The action directed by the Court of Chancery having been brought, the court of B. R. were of opinion, that the assignees of B. were entitled to the proceeds: for 1st, D. did not stand in the relation of vendor of these goods quoad the bankrupt, but was a mere surety for the price of the goods, and consequently he was not entitled to stop them in transitu; 2dly, although C. was the vendor of the goods, yet J. S. could not be considered as his agent in this transaction, not having received any authority from C. until after he had obtained possession of the goods; but, supposing him to have been the agent of C. before, yet there was not any adverse taking possession of the goods, inasmuch as they had been taken under an amicable agreement with B. after his bankruptcy.

2. Under what Circumstances the Transitus shall be considered as continuing.-As to the second division, under what circumstances the transitus shall be considered as continuing, the cases are more numerous than in the last division, and, as they depend in great measure on their own sped Siffken and another, assignees of Browne, bankrupt, v. Wray, 6 East, 371.