
    Albert Newhall & al. Administrators of Samuel Winter’s Estate vs. Joseph Vargas.
    Where goods are sold on credit at a foreign port and .shipped on hoard a vessel of the vendee, consigned to him, and to bo delivered to him at his port of residence ; and the consignee becomes insolvent before payment is made • the vendor has the right to slop the goods in their transit at any time before they shall come into the actual possession of the vendee.
    The right to stop the goods in transitu, is not divested by the purchase of the goods of others by the vendor on his own credit for the vendee.
    Nor by the vendor’s taking bills of exchange drawn in his favour by the master of the vessel on the vendee.
    Nor by charging a commission for doing the business.
    Nor does the reception by the vendee of part payment take away the right.
    A claim made by the vendor on any person having charge of the goods, before the transit ends, is a sufficient exercise of the right of stoppage to revest the goods.
    To prevent the enforcement of this right, it is not sufficient for the consignee to make his claim to the goods ; he must obtain the actual possession.
    To entitle himself to exercise his right of stoppage, the vendor is under no obligation to refund what ho may have received in part payment; nor to pay the value of the freight.
    This case came before the Court on a statement of facts, of which sucli are given, as are necessary for the proper understanding of the questions of law raised on the argument.
    The action was replevin brought by the plaintiffs, as administrators of the estate of Samuel Winter, for a quantity of molasses, the cargo of tbe barque William Smith, imported into Portland from Havana in tbe island of Cuba, in September, 1835; of which barque Levi Peterson was master, and said Samuel Winter sole owner. Said barque arrived at Matanzas in said island in August, 1835, consigned to N. Cross, Jr. as the agent of Winter, who directed the master to proceed with the barque to Havana and consign her to Joseph Vargas, the defendant, a merchant at Havana; and the said Vargas on her arrival at that place received the consignment and sold the cargo, consisting of lumber, and received the net proceeds thereof, amounting to the sum of $3740,50, which were invested in tbe return cargo. In conformity to the directions of said master, tbe said Vargas purchased for and furnished him with a full return cargo of molasses, amounting in value to $13513,62. Vargas made sundry disbursements for said barque amounting to $352,56, and paid the master $221,00 for other disbursements for the barque. For the balance of the account of the barque, the said master made, executed and delivered to the said Vargas five bills of exchange, drawn on said Winter by the master for value received, and made payable to said Vargas or his order at sixty days sight, amounting in all, to the sum of $ 10296,62; of which two were dated September 1, 1835; two others were dated September 3, 1835, and the other, September 4, 1835, all of which, were made payable in the city of New YorJc. Peterson, the master, sailed with his return cargo on the 6th of the same September, before which time said Vargas had negotiated said bills of exchange at Havana, charging Winter a commission of one and half per cent, therefor; and they were sent to the United States in the usual course of business. About one month after the sailing of said barque, news reached Havana of the death and insolvency of Winter; and thereupon the said Joseph Vargas sent his brother, Nicholas Vargas, to the United States, clothed with full power to act for him in relation to his claims arising out of his transactions with Winter, and arrived in the city of New Yorlc on the fourth of November following, and there found, that all of said bills of exchange had been protested for non acceptance; and immediately proceeded to Boston and from thence to Portland, where he arrived on the 15th of the same November ; and soon after his arrival there and during his stay at Portland, said bills fell due and were protested for non payment; and the same were taken up and paid by W. W. Russell of New Yorlc for the hon-our and on the account of the said Joseph Vargas. Prior to the arrival of the said Nicholas in Portland, and in the month of September, J. B. Thompson, one of the partners of the mercantile house of Fessenden, Thompson & Co. of Boston, the general correspondents of the defendant in the latter city, and claiming to act as their agents, proceeded to Portland and employed one Merrill to act in his behalf, who received written instructions. In conformity to these instructions said Merrill, on the morning of the 28th of September, having been informed of the arrival of said barque in the lower harbour of Portland, proceeded on board, and there demanded of the mate then in charge of the barque, the captain being on shore, the cargo of the same in the name anti in behalf of the said Joseph Vargas, as his property, in consequence of the death and insolvency of said Winter, and forbid the delivery of said cargo to the representatives of said Winter, or to any others on his account. Said Merrill remained on board until the return of the master, and immediately on his coming on board demanded of the master the said cargo, and forbid him to deliver it to said Winter’s representatives, or to any person in said Winter’s behalf; and said master refused to deliver up the same, claiming to hold it for 1ns own indemnity, or to do any act without the advice of counsel. During said Merrill’s stay on board, an officer of the customs came and demanded said vessel’s papers and left an inspector on board. Said Merrill then left the vessel, and on the day following demanded the cargo of the collector of Portland, and notified him of the previous demands on the master and mate. About four days after the arrival of the barque at Portland a keeper was put on board at the request oí Fessenden, Thompson & Co. and in behalf of said Joseph Vargas, and of said Peterson, the master, who claimed an interest in the cargo, as an indemnity against said bills, and the keeper remained on board until the collector of Portland, took the vessel into his possession. All of which proceedings of said Fessenden, Thompson Co. and of those employed by them, were sanctioned and ratified by the said Nicholas, the attorney of said Joseph Vargas, on his arrival in Portland-, and in behalf of said Joseph. This ratification took place several weeks before this suit was commenced. Before the commencement of the suit, said Nicholas, in behalf of the defendant, tendered the collector the amount of the duties due on the cargo and claimed the right of entering the same, as the property of said Joseph Vargas. At the time of the delivery of the cargo at Havana, an invoice thereof, and the amount of sales, purchases, disbursements and commissions were delivered to the master, and a letter was addressed to said Winter covering a bill of lading of the cargo, and forwarded, informing him, that said cargo bad been furnished to the captain by said Vargas, and was consigned to said Winter to be delivered to him at Portland. Said Peterson was notified, as drawer of said bills of exchange in the ordinary course of business, and the defendant holds him liable for said bills, in default of payment or discharge in some other mode. Peterson, the master, and the administrators of Winter, claimed the right to enter the cargo at the custom house ; but the collector declined to decide on the conflicting claims, and after the expiration of fifteen days from the arrival of the barque, took the cargo out and stored the same in the government stores. Before the cargo was sold for the payment of duties, said Nicholas Vargas, as attorney of the defendant, paid the duties and was permitted to enter the cargo and take possession thereof. Afterwards, the administrators of Winter repaid to the agent of the defendant the duties on the cargo, under an agreement, that it should be without prejudice to the rights of either party. The orders from Winter to the master to obtain a full return cargo were verbal. On the passage home, from badness of weather, about one hundred hogsheads of the molasses were lost. The administrators of Winter on receiving the bills of lading and letter of advice, and sometime before the arrival of Nicholas Vargas, proceded immediately to call on the master for the papers for the purpose of entering said vessel and cargo, and they paid off and discharged the mate and crew.
    Judgment was to be entered for the plaintiff or defendant according to law, with costs according to law.
    The case was very strenuously and fully argued by
    
      Préble and Daveis, for the plaintiffs, and by
    
      Mellen and Dehlois, for the defendant, at an adjournment of the regular term of the Court.
    In the complete discharge of duty to clients, the counsel found it necessary to continue their arguments, though with much variation as to the time consumed by each, during two whole days ; and the authorities cited are exceedingly numerous. To give even a sketch of the arguments would require more space than can be devoted to any one case ; and therefore nothing more will be attempted, then to state some of the positions taken, and to give a list of authorities cited.
    Daveis.
    
      Vargas has no right to assume the character of vendor of the cargo, and in that capacity to set up the right to stop it in tran-
      
      situ. By charging a commission on the negotiation of the bills, be may and should be considered as having sold them on Winter’s account, and as having paid himself with the money. Bis after claim on the bills was obtained in the character of indorser, not as payee. Or the commission may be considered, as his compensation for a guaranty of the debt.
    His character of vendor is discharged by taking the bills of exchange of Peterson, a third person, drawn on Winter, and holding Peterson accountable on them. This extinguishes all right of lien. In Maine and Massachusetts the transaction amounts to a payment. Peterson’s being Winter’s agent makes no difference.
    But if Vargas can be considered as vendor, still the delivery of the cargo to Peterson, the agent of Winter, the vendee and consignee, on board Winter’s vessel, was a delivery to Winter himself. This destroys all right of lien, and takes away all power to stop the goods in transitu.
    
    With the exception of one case, Stubbs v. Lund, 7 Mass. R. 453, there is little conflict in the cases on this subject. That case was rightly decided bn the facts. The majority of the court aided in deciding the case of Ills ley v. Stubbs, 9 Mass. R. 65, and one of them delivered the opinion. The facts in the two cases are the same, and the true reasons are given in the latter case. If the Reporter’s note is to be considered the true expression of the substance of the decision in Stubbs v. Lund, it is expressly overruled in Pennsylvania, and opposed to the main current of authorities bearing on the point.
    The case shews, that a large portion of the cargo was purchased with Winter’s own funds, the proceeds of the outward cargo; and that the property was brought home in Winter’s vessel. If the right claimed had existed, it could not have been exercised until payment or tender of payment of these sums.
    If Vargas had the right, it was not seasonably exercised in this case. This was no part of the duty of mere general correspondents. Before any ratification of their acts by Vargas, the administrators had asserted their rights.
    
      Mr. Daueis cited the following authorities, and commented on many of them. Some of them were cited for the purpose of pointing out the true principle of the decision ; or of opposing others to them in which they were overruled; or of showing their want of pertinency to the present case.
    
      Holt on Maritime Contracts, 499; Lawes on Charter parties, 415; Sweet v. Pym, 1 East, 4; Feise v. Wray, 3 East, 100; Siffken v. Wray, 6 East, 371; Rowley v. Bigelow, 12 Pick. 313; Haille v. Smith, 1 Bos. & Pul. 563 ; Wiseman v. Van-deput, 2 Vernon, 203; Snee v. Prescott, 1 Atk. 249; Gilman v. Brown, 1 Mason, 191; Garson v. Green, 1 Johns. Ch. C. 308 ; 4 Kent, 2d Ed. 151, 514 ; Mackrath v. Symmons, 15 Ves. 329; The Constantia, 6 Rob. Adm. Rep. 321; Montagu on Lien, 86 to 100; Barrett v. Goddard, 3 Mason, 107 ; Abbott on Shipping, 4th Ed. 365; Lickbarrow v. Mason, 2 T. R. 63; Same case, 1 H. Bl. 366; Rascadillas v. Harris, 8 Greenl. 298; Mayhew v. Prince, 11 Mass. R. 54; Grosvenor v. Stone, 8 Pick. 79; Scott v. McLellan, 2 Greenl. 199; Newsom v. Thornton, 6 East, 16; lllsley v. Stubbs, 9 Mass. R. 65; Atkin v. Barwick, I Strange, 165; Harman v. Fishar, Cowper, 117; Richardson v. Goss, 3 B. & P. 124; Scholfield v. Bell, 14 Mass. R. 40; Inglis v. Usherwood, 1 East, 515; Coates v. Railton, 6 B. & Gres. 422; Rixon v. Baldivin, 5 East, 180; Oppenheim v. Russell, 3 B. &f P. 42; Bohtlingk v. Inglis, 3 East, 381; Stoveld v. Hughes, 14 East, 312; Scott v. Pettit, 3 B. & P. 469; Leeds v. Wright, 3 B. & P. 320; Rowe v. Pickford, 8 Taunt. 83; Harman v. Anderson, 2 Camp. 243; Noble v. Adams, 7 Taunt. 25; 2 Kent’s Com. 2d Ed. 347, 547, 422; Mills v. Ball, 2 B. & P. 457 ; Foster v. Frampton, 6 B. & Cres. 107 ; Fowler v. McTaggart, cited in 7 T. R. 442, cited as Fowler v. Kymer, 3 East, 396; Salomons v. Nissen, 2 T. R. 674; Coxe v. Harden, 4 East, 211; The Spartan, 3 Arner. Jurist, 32; The Volunteer, 1 Sumner, 551 ; Bolin v. Huffnagle, 1 Rawle, 1; Fearon v. Bowers, cited in 1 H. Bl. 364; Cowing v. Snotv, 11 Mass. 415; Pickmanv. Woods, 6 Pick. 252; Portland Bank v. Stubbs, 6 Mass. R. 422; Caldwell v. Ball, 1 T. R. 205; Crashaw v. Edes, 1 B. & P. 181; Savignae v. Cuff, cited in 2 T. R. 66 ; Hodgson v. Loy, 7 T. R. 436; Kinlock v. Craig, 3 T. R. 119; Fenton v. Pearson, 15 East, 419; Ellis v. Hunt, 7 T. R. 464 ; Wright v. Lawes, 
      4 Esp. R. 82; Hammond v. Anderson, 4 JJ. Sf P. or 1 Neiv Repts. 69; Fcity place v. Hutch, 13 Fide. 388; Hurry v. Mangles, 1 Camp. 452; Holt v. Powned, 1 Esp. R. 240; 13 Martin’s Louis. Repts. 261.
    
      Preble cited in addition, 2 B. & Aid. 511 ; Thompson v. <Snoto, 4 Greenl. 264 ; Emery v. Ilersey, ibid. 407.
    
      Heblois.
    
    Those facts appear in the statement. 1. The cargo of the barque was the property of the defendant, Joseph Vargas, and he sold it on a credit to Winter. 2. It was shipped on board the barque, then belonging to Winter, of Portland, consigned to him and to be delivered to him or his assigns at that place, on his own account and risk. 3. Winter died insolvent before the vessel arrived at Portland. 4. The bills of exchange, drawn by the captain on Winter in payment of the cargo, were protested for non-acceptance, and afterwards taken up by Vargas. 5. The cargo remained on board the vessel in Portland harbor, in possession of the captain, until the Collector of the customs took possession of the samo and stored it; and no part of the cargo ever came into the possession of the plaintiffs, till they obtained the possession from Vargas by means of their writ of replevin. On these facts what is the law ?
    Although the doctrine of stoppage in transitu was first enforced by Courts of Chancery, the Courts of law have adopted it, and now favor it; as the following cases will shew. Lickbarrow v. Mason, 2 T. 11. 63; Hammond v. Anderson, 1 New Repts. 69 ; Northey v. Field, 2 Esp. R. 613; Hodgson v. Loy, 7 T. R. 440; Illsley v. Stubbs, 9 Mass. R. 12; 2 Wheat. Ed. of Selwyn’s N. P. 443; 2 Kent’s Com. 2d Ed. 551; Abbott on Shipping, 4th Ed. 364; Holt on Mar. Con. 496.
    The main principle, on which the whole case turns, will be stated in the words of Chief Justice Parsons.
    
    
      “ 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, arid indorsed over the bill of lading to the purchaser.” Stubbs v. Lund, 7 Mass. R. 457.
    
      That case is supported by many others of the highest authority, among which are the following, lllsley v. Stubbs, 9 Mass. R. 65 ; Feise v. Wray, 3 East, 93; Wiseman v. Vandeput, 2 Vernon, 203; Hodgson v. Loy, 7 T. R. 440; Bohtlingk v„ Inglis, 3 East, 381; Inglis v. Usherwood, 1 East, 505 : 2 Kent, 2d Ed. 551; Naylor v. Bennie, 8 Pick. 198; Ellis v. Hunt, 3 T. R. 564.
    This is the general rule. There are exceptions to it, which however do but confirm it. Our case is not within any of the exceptions.
    These are, 1. Where there has been an assignment of the bill of lading, and the rights of third persons have intervened. As in Lickbarrow v. Mason, 2 T. R. 63.
    2. Where a partial delivery has taken place. As in Slubey v, Heyward, 2 H. Bl. 504; Hammond v. Anderson, l New Repts. 69.
    3. Where the cargo has been delivered to some special agent of the consignee. As in Leeds v. Wright, 4 Esp. R. 243; same case, 3 B. &f P. 320 ; Scott v. Pettit, ibid, 469; Dixon v. Baldwin, 5 East, 175.
    And a delivery to the master of a vessel is not a delivery to a special agent, so as to come within the exception. Ellis v. Hunt, 3 T. R. 464.
    4. Where the cargo is not intended to come to the port where the vendee resides, but is sent from the place of' purchase directly to another market. Such was the case so much relied on by the counsel on the other side. Fowler v. McTaggart, and other cases cited.
    With these exceptions, under none of which does this case fall, there is but little conflict, it is agreed in the decisions. They are all in unison with Stubbs v. Lund, or perfectly reconcilable with it, but in the solitary instance of the case from 1 Rawle, 1. There the court were divided three to two, and the opinion of the minority is based on sounder reasons and cites higher authority, than that of the majority. Chancellor Kent, in a note to vol. 2, 3d Ed. 544, considers the majority of the court wrong, and that Stubbs v. Lund, was rightly decided. So high an authority, as Chancellor Kent, far outweighs any balance against us from the case in Rawle.
    
    With respect to the numerous cases cited in relation to transportation by land carriage, it is enough to say, that they have no bearing on this case. The law in that respect has adopted different rules from those settled in regard to transportation by water from one country to another.
    If a delivery to the master of a vessel is to be considered a delivery to the owner, as contended for in behalf of the plaintiffs, then the right of stoppage in transitu is useless. The cargo purchased on credit is usually put immediately on board a vessel under charge of the captain.
    
      Vargas has done nothing in this case to destroy his exercise of this right.
    In drawing the bills of exchange Peterson acted, as the mere servant of his owner, and afterwards his acts were sanctioned by Winter. The claim now made for the property ratifies the acts of the master ; the plaintiffs having no claim to the property, but through him. Payment must be made to destroy this right. Giving security which turns out to bo valueless does not prevent its excercise. The case of Hescadillas v. Harris, 8 Greenl. 298, is decisive on this point.
    The commissions charged were but the small profits made by Vargas, where he purchased of others to sell to Winter, and were a proper subject of charge. But if they were not, it would only lessen the amount of his claim by that sum, and would not touch the right of stoppage.
    This right was seasonably exercised.
    As has been said, the right to stop the goods in transitu, continues until they come into the possession of the consignee at the port of delivery. In this case that possession was gained only by service of the writ in this action. Long before that time, a demand had been made by direction of Vargas’ general correspondents ; these acts had been ratified by the special agent of the defendant; a demand had been made by him on the Collect- or who then had possession of the goods, with a request for leave to enter the same for the defendant: and finally possession had been actually taken by him. Any one of these acts was a seasonable and legal exercise of this right. A claim of the right to stop the goods made on any one in possession is sufficient to revest the property in the vendor; even although taken possession of by the public authorities and stored in the public storehouses. But on the part of the consignee a claim is not sufficient. Wheat-on’s Selwyn, 443, 451; Litt v. Cowley, 7 Taunt. 169; Barrett v. Goddard, 3 Mason, 107; 2 Kent’s Com. 2d Ed. 540 ; Coats v. Railton, 6 B. & Ores. 422; Naylor v. Bennie, 8 Pick. 198. Mills v. Ball, 2 B. &f P. 457; Northey v. Field, 2 Esp. R. 613.
    Nor was it necessary to make payment or tender of payment of the amount of sales of the outward cargo, or of the value of the freight, before the right to stop the goods in transitu could be asserted.
    In a case like this between consignor and consignee, the lien on the property shipped is an entire one until it is removed by payment of the amount due ; and it makes no difference, if a partial payment has been made, or expenses have been incurred. In this case no freight was due, for Winter, the consignee, imported the goods on his own account and in bis own vessel. No freight for the transportation of them could be due to any one ; for if so, it must be from Winter to Winter. Hodgson v. Boy, 7 T. R. 436; 2 Kent, 554; Feise v. Wray, 3 East, 100.
    But if the freight had been due, its payment was waived in this case by Peterson’s placing his refusal to deliver the cargo on another ground. Hussey v. Thornton, 4 Mass. R. 405.
    The freight was due to third persons in the instances, where it was held necessary to pay it on stopping the goods in transitu. Perhaps the duties payable on this cargo, after the collector had taken the possession, might come under the principle of the cases cited on the other side; but the amount of duties was tendered to the collector.
    
      Mellen enforced the positions taken by Beblois, replied to the arguments of the opening counsel, and commented on the authorities cited.
    
      Preble urged the objections against the claim of Vargas to retain the goods against the creditors of Winter; and argued, that both principle and the weight of precedent were in his favor.
   Tho action was continued nisi, and the opinion afterwards drawn up by

Weston C. J.

Joseph Vargas, having due authority therefor, furnished for the intestate’s barque a return cargo of molasses, in part payment of which the net proceeds of the outward cargo were applied. It is insisted, that in this business ho acted as factor; and as such could not exercise the right, upon which the defendants’ title depends. The circumstance of his having purchased the molasses specially for this purpose, can make no difference. It was paid for out of his own funds; and he stood in relation to the intestate in the character of a vendor, as much as if it had been supplied from his owm warehouse. And it has been directly adjudged that a factor or agent, who purchases goods for his principal, and makes himself liable to the original vendor, is so far considered in the light of a vendor, as to be entitled to stop the goods. Feise et al. v. Wray, 3 East, 93. Every reason, upon which this right is founded, applies with equal force to a purchaser so circumstanced.

The b'lls drawn by the master, payable to Vargas, for the amount due on the purchase of the return cargo, were not equivalent to payment. They were the evidence of the debt due to Vargas; and did not deprive him of any other remedy, authorized by law, where the vendor becomes insolvent. This further remedy, arising from the right of stoppage in transitu, is analogous to the lien, which the vendor of real estate has in equity upon the estate sold for the purchase money. It is not affected or impaired, by taking the bond, bill or note of the purchaser. 4 Kent, 153. The master, in drawing the bills on the owner, was acting on account of the latter; and although sufficiently authorized thereto before, his doings have been since ratified, by the representatives of tho owner, in claiming the molasses thus purchased. It was the usual mode of doing business of this sort. And although by the form of the bills, the master may have made himself personally liable, there is no reason to suppose that his security was relied upon by Vargas, or that, by accepting it, he waived other remedies. Descadillas et al. v. Harris, 8 Greenl. 298. The master was not acting for himself. He was the mere agent of the owner. In the case before cited from East, where the right of stoppage was recognized, bills had been drawn for the merchandise sold, which had been accepted and negotiated.

Nor do we perceive, that the commissions charged by Vargas, for doing the business and negotiating the bills, can deprive him of the right he claims. As indorser of the bills, he became conditionally liable to the holder, if protested for non acceptance, or for non payment. And this business done for the owner, together with the purchase of the molasses, well entitled him to a commission. He became liable upon the bills, not for the benefit of the drawer, but of the holder. It is not easy to conceive how this liability could have the effect to impair any of his remedies against the owner, who was bound to accept and pay the bills. There is very little analogy between this case and that of a factor, who receives a del credere commission. The factor there guaranties to his principal the solvency of others, who are the purchasers of his goods. Here Vargas became responsible to others, if the principal, for whom he bad purchased and who had purchased from him, did not duly honor his bills. In either case, every legal remedy remains in full force against the purchaser. In the case cited from East, which in many of its points has a near resemblance to the one under consideration, the party who purchased and supplied the cargo, and who negotiated the bills, charged and was allowed a commission.

The right of stoppage in transitu, upon the insolvency of the purchaser, has been well settled in the commercial world. It had its origin in the civil law ; was first recognised in England in equity, and was subsequently adopted by the courts of common law. It is analogous to the common law right of lien, being an equitable lien, which enables the vendor, after he has parted with his possession, to resume it at any time before the vendee has acquired it, and to retain the goods, until the price has been paid or tendered. The leading principles in relation to the doctrine, have been established by judicial decisions. There is very little conflict of authority, as to who may exercise the right. The principal difficulty has been in some of the cases, as to when the transit ends, upon which the right ceases. In regard to this point, there is not entire harmony in the decisions; and there has been much refinement in some of the distinctions, upon which they have turned. The right of stoppage is a favored claim ; and in general it continues until the goods have come to the possession, or under the direction of the vendee.

It is contended, that the right ceased in this case upon the delivery of the goods on shipboard, because the vessel belonged to the vendee, and because the master was his agent. On the other hand it is urged, that as the goods were destined to be delivered to the vendee at Portland, the transit continued, until they were received by him or his representatives at that port. It is conceded that such would have been the fact, had the vessel been a general ship. The decision of the cause will mainly depend upon the question, whether the vessel in this case belonging to the vendee, and in his employment, a different rule is to be applied.

In Fowler et al. v. McTaggard et al. cited in Inglis v. Usherwood, 1 East, 515, it was ruled by Grose J., that upon the delivery of a quantity of tobacco on board a ship, chartered for three years by the vendee, the transit was at an end, and the right of stoppage ceased. And it appears in Hodgson v. Loy, 7 T. R. 436, where the case was again cited, that a motion for a new trial was overruled. In the case last cited from East, Grose J., recognizes it as a general rule, that the delivery of goods by the vendors, on board a chartered ship of the vendee, is a delivery to the vendee himself. Lawrence J., expressed himself to the same effect, but the right of stoppage was there allowed, upon the construction put upon the law of Russia, where the goods were delivered. In the case before Grose J., the tobacco was not shipped to be delivered to the vendee, but for a foreign destination.

Where goods are shipped on board a vessel, appointed by the vendee, to be transported not to his residence or to he received by him, but to other markets, there is a termination of the transit, and the right of stoppage by the vendor ceases. Noble v. Adams, 7 Taunton, 59; Stubbs v. Lund, 7 Mass. 453; Rowley v. Bigelow, 12 Pick. 307. And this is the true principle, upon which Fowler v. Taggard turned, as stated in the opinion of the court, delivered by Lawrence J. in Bohtlingk v. Inglis, 3 East, 381, in which Grose J. who tried the former ease, concurred» Lawrence J. disclaims, for himself and for Grose, any intention in Inglis v. TJsherwood, to state, that a delivery on board the vendee’s ship was a delivery to him, so as to take away the right of stoppage, except as in the case of Fowler v. McTaggard, where the goods were sent abroad, stating truly, that Inglis v. Usherwood was decided upon the law of Russia. And he further insisted, that neither case was inconsistent with the judgment then pronounced in Bohtlingk v. Inglis, that the delivery of goods on board of the chartered ship of the vendee, to be transported to him, did not preclude the right of the vendor or consignor to stop the goods in transitu, any more than if they had been delivered on board a general ship. The court there expressly repudiate any distinction, between a general and a chartered ship ; saying that they were misunderstood, if any such inference can be drawn from the former cases. And certainly they were competent to explain their own meaning.

It is a little remarkable, that in Bolin et al. v. Hoffnagle, 1 Rawle, 9, the Supreme Court of Pennsylvania, although their attention was called to the case last cited, decided otherwise ; and principally upon the authority of the cases there commented upon, giving them an effect and bearing, disclaimed by the court, by whom they were decided. The learned Judge, by whom the opinion of a majority of the court was delivered, goes into an elaborate consideration of a delivery actual and constructive; and deduces that it is only where the delivery is constructive, that the right of stoppage exists. A delivery on board the consignee’s or vendee’s own ship, he calls actual. But a delivery to the servant or agent of the party, is as much actual, as if delivered to the party himself. And whether that servant or agent is specially deputed for the purpose, or some one is deputed, having similar commissions to discharge for others ; whether the vendee employs his own vessel or carriage, or causes the goods to be transported for an adequate compensation in that of another, does not appear to us to make any difference. The delivery is actual in the one case, as well as in the other. The sale is complete. The property is transferred. The right of stoppage is not founded upon any imperfection in the sale, nor does it rescind the contract ; it only authorizes the vendor to take the goods, until the price is paid. Two, out of the five members of the court, did not concur in the judgment cited from Jiawle. The opinion of the dissenting Judges seems to us to be best supported by authority.

Stubbs v. Lund, before cited, is a case precisely in point. Chief Justice Parsons goes into a consideration of the question directly, whether the vendee of the goods, being the owner of the ship and appointing the master, places the case, in reference to the right of stoppage in transitu, upon any different ground, than if the goods were delivered on board a general ship, and he expressly decides, speaking for the court, that it does not. That if goods are put on board the consignee’s ship to be transported to him, the transit continues for the purpose of stoppage, until they come to his actual possession ; but that the rule is otherwise if shipped to bo conveyed to a foreign market. That case has never been overruled ; and was decided, while Maine, was a part of Massachusetts. It is true, that in Illsley et al. v. Stubbs, 9 Mass. 65, where the same property was in controversy, under the same facts, the court assign additional reasons for coming to the same result. But Seivall J. by whom the opinion of the court was delivered, says, “ with the aid however of the doctrine of stoppage in transitu, the question in this case may be more conclusively, and with some, more satisfactorily decided.” He then, after examining the authorities, and stating his reasons at large, confirms the doctrine, previously laid down in Stubbs v. Lund. And be shows that the cases, apparently conflicting in England, may be reconciled by the distinction, that in the one case, goods were shipped for a foreign destination, and in the other, were to be transported to the consignee.

If this doctrine is not reaffirmed in Rowley et al. v. Bigelow et al. 12 Pick. 307, that case did not require it; turning as it did upon the destination of the goods. There is nothing in it however impeaching the former cases. And we hold it to be well settled law in Massachusetts and in this state, and we think also in England, that if goods, as in the case before us, are delivered on board the ship of the consignee or vendee to be transported to him, if he becomes insolvent, the vendor has a right to stop them in transitu, until received by the vendee. It results, as a part of the doctrine, equally sustained by the authorities, that the receipt of goods by the master of the vendee’s ship, does not put an end to the transit-. He stands in this respect like all other agents, who are employed to transport the goods. In certain cases, where goods have been received by an agent to be forwarded, on the further order of the vendee, to an ulterior destination ; or where the vendee, having no warehouse of his own, availed himself of that of a packer; or where the vendee obtained the use of the vendor’s warehouse for the storage of the goods, the right of stoppage has been held to cease. In these, and in other cases of the same class, cited for the plaintiffs, depending on their peculiar circumstances, we find nothing necessarily, if at all, conflicting with the doctrine, which we have recog-nised.

Another point taken is, that Vargas should have paid or tendered to the plaintiffs, the amount of the outward cargo and the freight, before he could be allowed to exercise the right he claims. But the right, when enforced, does not rescind the contract. Hodgson v. Loy, 7 T. R. 440. The vendee, or his assigns, may, notwithstanding recover the goods, on payment of the price. And it has been held, that the vendor may sue for and recover the price, notwithstanding he had actually stopped the goods in transitu, provided he be ready to deliver them upon payment. Kymer v. Sowercropp, 1 Camp. 109. The goods are stopped, to enforce an equitable lien for what remains unpaid. Hence payment in part, has the effect only to diminish the lien pro tanto on the goods detained. Hodgson v. Loy, and Feise v. Wray, before cited. The net proceeds of the outward cargo were applied in part payment for the molasses. Of the same character is the increased value, arising from the transportation. The freight is equivalent to a partial payment. If the goods stopped are of greater value, from the former payment, and their appreciation here, than is wanted to pay Vargas his balance, the plaintiffs have nothing to do but to pay or tender to him the amount due, and they will have a right to reclaim the molasses. But the vendor, to entitle him to exercise his right of stoppage, is under no obligation to refund, what he may have received as part payment.

The goods, not having been paid for, and the vendee having become insolvent, the vendor had a right to stop them in transitu. Does it appear to have been seasonably exercised in the case before us ? We are of opinion that it does. Fessenden, Thompson fy Co. were the correspondents of Vargas, in this country. They were aware that he was in danger of sustaining loss. They interpose to do an act for his benefit, which tending greatly to promote his interest, it could not but be presumed he would approve. Upon being advised of it, he requests them to take care of his interest. Id is special agent and attorney, Nicholas Vargas, also adopts and approves the course pursued by his correspondents hero. Merrill was sent on board for them, and upon the arrival of the vessel in the outer harbor of Portland, he notified first the mate, and then the master, of the claim of Vargas. This claim, thus interposed and thus ratified, we regard as a competent exercise of the right of stoppage.

Notice to the carrier, or to any one having charge of the goods, before the transit ends, is sufficient for this purpose. Mills v. Ball, 2 Bos. & Pul. 457; Litt v. Cowley, 7 Taunton, 169. Nicholas Vargas, the undoubted agent and attorney of Joseph, renewed the claim of the latter, immediately upon his arrival in Portland, of which he notified the collector, while the goods were in his possession, and then lying in the government stores. This of itself was sufficient, according to the case of Northey et al. v. Field, 2 Esp. Rep. 613, where a quantity of wines had been lodged in the King’s stores, the duties not being paid, and while there, they were claimed by the agent of the consignor, this was held by Lord Kenyon a legal stoppage in transitu, although they had been previously demanded by the assignees of the consignee. And this last case, where the assignees had only made a demand, differs from the case of Holst v. Pownal, 1 Esp. Rep. 240, where they had taken actual possession. The latter has been repudiated ; but Chancellor Kent cites the former with approbation. 2 Kent, 430. The right of stoppage, being a favored claim, may be exercised by notice, but no case has been adduced to show that it ceases upon notice, and the interposition of a claim merely, on the part of the consignee.

Judgment for the defendants.  