
    Peter Stubbs versus Jonathan Lund.
    Where a merchant, in pursuance of a previous general agreement, had shipped goods to one on credit, who, after the shipment, became insolvent, the shipper had still a right to stop the goods in transitu; the credit contemplated being predicated on the supposed ability .of the consignee to pay at the expiration of the credit.
    The right of stopping in transitu goods shipped on the credit and risk of the consignee remains until they come into his actual possession at the end of the voyage ; unless he shall before have sold them, and assigned the bills of lading to the purchaser.
    And in all cases, where an actual possession of the consignee, after the end of the voyage, is provided for in the bills of lading, the right of stopping in transitu remains after the shipment, whether the consignee be the hirer or owner of the ship, or the shipment be made on a general ship. — But if the goods are shipped for a foreign market, and are not to be transported to the consignee the right of stoppage ceases on the shipment
    Replevin of a quantity of salt and coals. The defendant pleads in bar that the said salt and coals were the proper goods and chattels of Lemuel Weeks and William C. Weeks, traverses the property of the plaintiff, and prays a return to be adjudged him, with his damages and costs. The plaintiff tenders an issue on the traverse, which is joined by the defendant.
    [ * 454 ] * This issue was tried before Thatcher, J., at an adjournment of the last May term in this county, and a verdict found for the plaintiff, agreeably to the directions of the judge, to which directions the defendant filed his exceptions, which were allowed by the judge.
    From the exceptions, it appears that the house of Logan, Lenox, if Co., at Liverpool, in England, of which the plaintiff was one, had shipped the cargo of salt and coals on board the ship Henry, Joseph Weeks master, on the credit, and on the account and risk of the said L. if W. C. Weeks, and consigned the same to them or their assigns, for which the master had signed bills of lading; but before the ship had left the port of Liverpool, the shippers being informed of the insolvency of the consignees, refused to let the ship sail under the said shipment of the cargo. Afterwards, on the master’s signing other bills of lading, acknowledging the cargo to be shipped by the same persons, consigned to the plaintiff, the master was permitted to sail.
    There was shown in evidence to the jury an agreement betweer Logan, Lenox, if Co., and L. W. C. Weeks, by which the former contracted to accept the drafts of the latter, or to advance them cargoes on credit, to a limited amount; also a copy of an account current, in which the cargo in question was charged by the former to the latter. The defendant is a deputy sheriff of this county, and had attached the goods in question as the property of the said L if W. C. Weeks, at the suit of Daniel Tucker, in an action brought upon several promissory notes.
    The motion of the defendant for a new trial, grounded on the supposed misdirection of the judge, was argued by Whitman and Hopkins for the defendant, and Mellen and Emery for the plaintiff.
    
      Eor the defendant,
    
    it was contended that he had a right to a return of the goods replevied, unless the plaintiff was the rightful owner of them at the time of the attachment. The house of Logan, Lenox, & Co. were the original owners. They shipped it, under the agreement on file, on board a * ship sent to [ * 455 ] them by L. & W. C. Weeks, as their entire chartered ship for the purpose of conveying a cargo to Logan, &c., and receiving the cargo in question in return for L. & W. C. Weeks. The first question, material to be considered, is, whether the property of the goods, under the circumstances of the case, passed to the consignees. If it had passed absolutely to them, there remained to the consignors no right of stoppage in transitu. But the delivery to the master of the ship, owned wholly by the consignees, xvas a delivery to them to all intents and purposes, he being their servant and agenl duly authorized to receive such delivery. The property thus vested in them, and the power and rights of the consignor, wholly ceased. This is a very different case from lading goods on board a general ship, the master of which is in no sense the representative of the consignees of any goods shipped on freight. In such case, it is acknowledged that the right of the consignors to stop in transitu continues until the goods come into the actual possession of the consignees. 
    
    But if this distinction, which is clearly taken in the books, should be thought unfounded, still it is contended that the special agreement in this case, and the delivery of the cargo pursuant to that agreement, took from the shippers in Liverpool any right they might otherwise have possessed of stopping the goods.
    If, in fine, they really had the right now set up, yet they in fact nex'er exercised it. For in the account current exhibited by them long after this transaction, they charge L. & W. C. Weeks with this identical cargo, and with interest on the cost of it up to the date of the account.
    
      For the plaintiff,
    
    it was insisted that the contract by the first bill of lading was dissolved and rescinded by the parties to it. Of their right to do this there can be no question. But if "this ground is objected to, then it is contended that the goods were lawfully stopped in transitu.
    
    The right of stopping in transitu remains generally in the consignor until an actual delivery to the consignee. [ * 456 ] * There are certain exceptions, and limitations, by which this right is in certain instances taken away ; as where the bill of lading has been assigned for a valuable consideration, without notice to the assignee that the goods are not paid for; such assignee will hold the goods, and the right of the consignor to stop them in transitu, as against him, is gone.  So, when a part of the goods has been delivered to the consignee, the right to stop in transitu is gone as to the remainder.  So, also, when the goods have been delivered to the special agent of the purchaser or consignee, the right is taken away.  But not when delivered to an intermediate man, as a wharfinger, packer, or master of a ship. 
       The right of stoppage in transitu is also taken away when goods are put on board a vessel to be transported to a port, other than that xvherein the consignee resides.  The case here was not within any of the exceptions or limitations recognized by the law. The right of stoppage in transitu remained then in the house of Logan, Lenox, & Co.; and the bills of lading vested the right in the plaintiff, which he would enforce by his writ of replevin.
    
      
      3) Abbott on Shipping, Part 3, c. 9, § 4. — Fowler & Al. vs. M'Taggart & Al., 7 D & E. 442. 1 East, 522. — Inglis vs. Ushcrwood, 1 East, 515.
    
    
      
       2 D. & E. 63, Lickbarrow vs. Mason.
      
    
    
      
       2 H. 'Black. 504, Stubey vs. Hayward. — 3 New Rep. 69.
    
    
      
       4 Esp. Rep. 243, Leeds vs. Wright. — 3 Bos. & Pul. 320, S. C. — 3 Bos. & Pul. 469, Scott vs. Pettit. — 5 East's Rep. 175, Dixon & Al. vs. Baldwin & Al.
      
    
    
      
       3 East, 381, Bothlingk vs. Inglis. — 3 D. & E. 467, Ellis vs. Hunt. — 2 Bos. & Pul. 457, Mills vs. Ball. — Abbott, 426, Nix vs. Olive.
      
    
    
      
       3 East, ubi supra, and Fowler vs. M' Taggart, there cited. — 3 Esp. Rep. 58, Boeth linck vs. Schneider.
      
    
   The action was continued nisi, and the opinion of the Court was delivered in Boston, at an adjournment of the last March term, by

Parsons, C. J.

The title of the plaintiff is admitted to be good, if the consignors had, under the circumstances of this case, a right to stop the goods in question, in transitu.

To this right the defendant has made two objections.

1. That the general credit given to the original consignees by the consignors, which is stated at large in the exceptions, had excluded the consignors from the right of stopping in transitu goods shipped and consigned pursuant to that agreement. But in our opinion, this objection cannot prevail. That agreement cannot bind the consignors after the insolvency of the consignees ; the credit contemplated being predicated upon the supposed ability of the consignees to pay at the expiration of the credit. And a * credit, [ * 457 ] given under such an agreement, can have no other effect on this question, than the credit given under the first bills of lading

2. The other objection is, that the consignees being either the owners or the hirers of the ship Henry, as soon as the goods were received on board that ship, and bills of lading signed by the master, there was no further transit, the goods being in the possession and custody of the consignees. And to support this objec tian, it was urged by the defendant’s counsel, that the right to stop in transitu extends only to goods shipped on board a general ship.

We think this objection cannot prevail. The right of stopping all goods shipped on the credit and risk of the consignee remains until they come into his actual possession at the termination of the voyage, unless he shall have previously sold them bona fide, and endorsed over the bills of lading to the purchaser. And in our opinion, the true distinction is, whether any actual possession of the consignee or his assigns, after the termination of the voyage, be or be not provided for in the bills of lading. When such actual possession, after the termination of the voyage, is so provided for, then the right of stopping in transitu remains after the shipment. Thus, if goods are consigned on credit, and delivered on board a ship chartered by the consignee, to be imported by him, the right of stopping in transitu continues after the shipment, (3 East. 381 ;) but if the goods are not to be imported by the consignee, but to be transported from the place of shipment to a foreign market, the right of stopping in transitu ceases on the shipment, the transit being then completed; because no other actual possession of the goods by the consignee is provided for in the bills of lading, which express the terms of the shipment. (7 D. & E. 442.)

The same rule must govern, if the consignee be the ship owner. If the goods are delivered on board his ship, to be carried to him, an actual possession by him, after the delivery, is provided for by the terms of the shipment; but if [ * 458 ] * the goods are put on board his ship to be transported to a foreign market, he has on the shipment all the possession contemplated in the bills of lading. In the former case the transit continues until the termination of the voyage; but in the latter case the transit ends on the shipment.

We think, also, that the same distinction must exist in the case of a general ship. If a ship sail from this country to Great Britain, with the intention of taking on board goods for divers persons on freight, to be transported to a foreign market, as the mercantile adventures of different shippers; if goods are so shipped by the several consignors, there is no transit to the consignees after the shipment; and no right of stopping remains with the consignors. But it is otherwise when several persons import goods in a general ship on their own credit and risk, for a future actual possession by them is provided for in the bills of lading.

Upon the best view we have been able to give the case before us, we are satisfied that the verdict is right, and that judgment must be entered upon it. 
      
      
         [Rowley vs. Bigelow, 12 Pick. 307. — Ed .]
     
      
       [Sed quære. Vide Abbott on Shipping, 5th edition, 374. — Ed.]
     