was not contemplated that they should ever reach the possession of W. Bros. & Co. The bill of lading was in name of appellee. Every circumstance concurred to defeat the right. See Eaton v. Cook, 32 Vt. 58; Rowley v. Bigelow, 12 Pick. 313; Stubbs v. Lund, 7 Mass. 453; Noble v. Adams, 7 Taunton, 59. Delivery of goods to carrier is a constructive delivery to the consignee, and sufficient to pass titie. Crumbacker v. Tucker & Hamilton, 9 Ark. 370; Magruder & Bro. v. Gage, 33 Md. 334.

When the relation of vendor and vendee exists, the delivery is subject to the right of stoppage in transitu in the vendor qua vendor. Benjamin on Sales, sec. 832; 1 Smith, L. C., 5th Ain. Ed., 874-5, 908.

Appellee was neither the vendee nor sub-vendee of L. A. & Co., and hence no right existed in them.

EAKIN, J.-There was no error in admitting the testimony of plaintiff, Freed, to show that he had ordered the goods from Walker Bros. & Co. The right of stoppage in transitu does not arise from any contract between the parties. It is a commercial right, arising from the circumstances; and it is competent to show the facts. The fact intended to be shown by this testimony was, that the plaintiff, Freed, to whom the goods were shipped, was the real owner, by purchase from Walker Bros. & Co., and that the goods were not shipped to him, as the agent of Walker Bros. & Co., who ordered them from the New Orleans firm, and directed them to be sent to Freed at Dardanelle; but that the goods, if they had come to his possession, would have been received by him, not as the goods of Walker Bros. & Co., but as his own. In other words, it ten ded to show that the relation of vendor and vendee did not exist between him and the consignors, but between him and the firm of Walker Bros. & Co.; and that there was never any consignment, or transitus of the goods to the original purchasers, either in their own names, or to them in his name as agent. If he had really been the agent of Walker Bros. & Co., or under any obliga-, tions to receive the goods for them, the right of Lehman, Abrahams &Co., the consignors, to stop them in transitu could not be doubted; but, as he had never had any transactions with Lehnan, Abrahams & Co., and had never represented himself to them as the agent of the purchasers; and as he had made himself responsible to Walker Bros. & Co., and would have received the goods absolutely as his own property, in his own right, if they had not been intercepted, then it becomes a grave question whether or not the right of stoppage in transitu ever existed at all; or, if it existed, whether it should not be considered as existing in Walker Bros. & Co., the real vendors to Freed, upon his insolvency, if it had occurred. It was proper to bring before the Court all the facts showing the actual status or condition of things, that it might determine

the rights of the parties, within the scope to which the doctrine of stoppage in transitu extends. To such cases the prohibition against showing res inter alios acta does not always apply.

The true state of the case, as developed by the record, is simply this Lehman, Abrahams & Co., upon the request of Walker Bros. & Co., and taking them as paymasters, shipped goods to Freed, at a point distant from the business place of either. It was never contemplated, from anything that appears, that the goods were intended to reach Walker Bros. & Co., or their agents, or to come into their possession. The fact is, they were not; and there is nothing from which the shippers might fairly have presumed an intention on the part of Walker Bros. & Co. to take control of them at their destination, or retain any property in them. Freed remains solvent. Walker Bros. & Co. became insolvent, and the goods were redelivered, by the carrier, to Lehman, Abrahams & Co., before they came to Freed's possession.

Is the carrier responsible to Freed for that? The goods became his property, on consignment absolutely and against all the world, subject only to the carrier's lien for freights; which, under the circumstances, it would have been idle to tender; and any right of stoppage in transitu which might exist. Had Lehman, Abrahams & Co. that right? If not, the action of the court is correct. If they had, it must be reversed.

In the present condition of commerce, it is not uncommon, as in this case, for purchasers to direct their vendors to consign the articles to customers of the former, with whom the shippers have no privity whatever.

The distinction between vendor and consignor and vendee and consignee, sometimes lost sight of in the old cases, has thus become a matter of vast importance in these triangular transactions; and, there being only one transit, it is a weighty matter to determine who, during that transit, has the right of stoppage, and upon whose insolvency; whether, in this case, it would have been in Walker Bros. & Co., or in Lehman, Abrahams & Co., on the insolvency of the consignee Freed, if in either. It could not have been in both; for that would produce an unseemly conflict. If in Lehman, Abrahams & Co., the contingency has not arisen; for Freed is not insolvent. If in Walker Bros. & Co., upon what principle can it, on their insolvency, arise in favor of the New Orleans consignors, against the solvent vendee of Walker Bros. & Co. If in neither, in case of Freed's insolvency, but only in Lehman, Abrahams & Co., in the contingency of the insolvency of Walker Bros. & Co., then we have the case presented of a solvent consignee, ready and willing to pay for his goods, subject to have them taken upon the default of a party for whom he is not liable, and whose actions he cannot control. If more attention had been paid in the discussions to the distinction between consignee and vendee, and

consignor and vendor, the decisions would have cast on this point more light than we now have.

A review of the authorities shows that the right has never been applied in cases where the consignor claiming it has not been the vendor, and the consignee (upon whose insolvency it arises) the purchaser and debtor. Lord Chancellor Baron Eyre remarked, in Kinlɔch et al. v. Craig, in 1790 (3 Term Rep., p. 787), that the right never occurred, but as between vendor and vendee.

It will simplify the matter to bear in mind when the terms "consignor" and "consignee" are used, that by the former is meant a vendor who ships, and by the latter, a purchaser to whom they have been sent. It is the real interest on one side and liability on the other which gives the right; not the technical designation of the parties in the bill of lading. (See notes to case of Lickbarron v. Mason, Smith's Leading Cases, Vol. I., p. 901.)

It is equally clear from all the cases, that the right has never been exercised, save upon the transit of the goods from a vendor to the purchaser from him.

Freed bought the goods from Walker Bros. & Co. They were his vendors and to them only was he liable. There can be no doubt that if the goods had taken their natural course, and been shipped by the original owners to Walker Bros. & Co., their vendees, the right of stoppage would have attached against the latter, upon their insolvency; and the goods might have been reclaimed during that transit. But if they had reached Walker Bros. & Co., and been by them reshipped to Freed at Dardanelle, it is equally clear that the original vendors would, on that transit, have had no right of stoppage, in any event; but it would have been in Walker Bros. & Co., upon the contingency of Freed's insolvency. Quite as clearly, Freed never contemplated, nor can be presumed to have assented to any other or different right of stoppage of the goods, than in case of his own insolvency, on the transit from his vendors to himself.

Neither transit was used. By agreement between Walker Bros. & Co. and the original vendors, another was adopted, which contemplated that the goods should come to the possession of the vendee of Walker Bros. & Co. without ever reaching Walker Bros. & Co. at all. This was before any shipment, and before Lehman, Abrahams & Co. had parted with possession. It is not like a sale by a purchaser of goods on their transit to himself; because, when the vendor contemplates a transit to his purchaser, and ships accordingly, he cannot be defeated of his riglit by the conduct of the purchaser during the transit, without his assent, either express or implied, in case of the assignment of the bill of lading. Here he assents to a different destination before parting with his property; and if he thereby loses his right of stoppage, it is his voluntary

act.

A case very nearly in point, as to the rights of parties in this case, is that of Feise et al. v. Wray, 3 East. 93. Browne, a London trader, ordered of Fritzing, a Hamburg merchant, a quantity of beeswax. Not having it, Fritzing procured the wax from another merchant, a stranger to Browne (having with him no privity of contract), and shipped it to Browne, upon the latter's account and risk, drawing bills upon him for the purchase money. Upon the insolvency of Browne, Fritzing, by his agent, stopped the goods in transitu. The assignees in bankruptcy of Browne brought

trover.

In his opinion, Mr. J. Grose remarked, after stating the prominent facts: "There was no privity between Browne and the merchant of whom the wax was purchased." "What is this, then, but the plain and common case of the consignor of goods, who has not received payment for them, stopping them in transitu, before they get to the hands of the consignee? It is said that no such right exists in the case of a factor against his principal. If this were a case of factor and principal, merely, I should find great difficulty in saying that it did. But here, Fritzing may in reality be consid ered as the vendor; for the name of the original owner was never made known to the bankrupt, but the goods were purchased and the bills drawn in Fritzing's own name; and therefore he stands in the relation of vendor as to Browne."

Lawrence, J., alluded to the argument that the right of stoppage applied solely to the case of vendor and vendee; from which it was contended that Browne must be considered as the principal for whom the goods were originally bought, and that Fritzing was only the factor, or agent; the Hamburg merchant furnishing the beeswax being, in fact, the vendor of the bankrupt; and that there was no right of stoppage in Fritzing. He says: "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 merchants here from their correspondents abroad, to purchase and ship certain merchandise to thein. The merchants liere, 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 wax and the bankrupt; but the property may be considered as having been first purchased by Fritzing, and again sold to Browne at the first price, with the addition of his commission upon it. He then became the vendor, as to Browne, and consequently had a right to stop the goods in transitu."

Le Blanc, J., puts the case in this wise: "The situation of Frit

zing was that of being employed by Browne to purchase the goods abroad, and to send them to him here. For the purpose, then, of stopping the goods in transitu, they stood in the relative situation of vendor and vendee; though, perhaps, not so as for all purposes. Fritzing pledged his own credit in the purchase of the goods from the original owners; and Browne could not be called upon for the value by the original owners, unless the goods came to his hands and he had not paid or accounted for the value of them to Fritzing, with whom he dealt. Then, clearly, Fritzing had a right to stop them in transitu." And so all the Justices agreed.

I have cited the different expressions of the justices in that case in order to show the true grounds of their conclusion, and that the differences in the facts between that case and this would not have been considered material. There the original vendor was not advised of the name of the ultimate purchaser, for whom the goods were intended; but that is mentioned only as conclusive proof of want of privity of contract, and it was upon this want of privity between the orignal vendor and ultimate purchaser, that the right of stoppage in transitu was to be in Fritzing, the immediate vendor of Browne. In the case in judgment, the want of privity between Leliman, Abrahams & Co. and Freed, is even more marked than if they had not known Freed's name.

The goods were sold on the order and sole credit of Walker Bros. & Co.; the bills made out in their name, and at their request sent to them with the bills of lading.

The vendors need not have inquired nor known anything of Freed. He was nothing to them, nor they to him. The goods were put in a carrier's hands, directed to him, simply as a mode of disposition of them, directed by the purchasers.

In the American Notes to Smith's Leading Cases (ubi supra) it is said: "It is not necessary, however, in order to support the right of stoppage in transitu, that the consignor should be the origi nal owner of the goods, or have purchased them on his own account. Although acting as an agent for a commission, and with the view of paying for them ultimately, with funds derived from the consignee, still, if he have obtained them on his own risk and credit, he will be entitled to stop them in transitu, on the insolvency of the latter," citing American cases, and also Jenkyns v. Usborne, 7 Man. & G. 678.

In view of these principles, I think it plain that if Freed had himself become bankrupt upon the transit of the goods from New Orleans to Dardanelle, there would have been no right of stoppage in Lehman, Abrahams & Co., as there would be in Walker Bros. & Co., notwithstanding the goods had been shipped from New Orleans, they being the true owners and vendors as regards Freed; we may safely take this standpoint, and consider from it whether or not the former firm, by agreeing to consign upon a transit, bur