
    George Naylor et al. versus James Dennie.
    An officer went on board a ship with a writ, in order to attach goods as the property of a consignee, and the goods being in the lower hold covered up with other goods, lie did not go below or see the goods, but paid the freight to the master, and left a keeper to take charge of the goods, as attached, and returned on the writ, that he had attached them at the time when he went on board. The keeper continued on board several days and took possession of the goods when they were hoisted from the hold. It seems, that in point of form the proceedings of the officer and his keeper constituted a valid attachment of the goods.
    Hoods shipped on board a vessel, are still in transitu after the arrival of the vessel in which they are shipped, until they are taken possession of on behalf of the consignee.
    An attachment of goods on board a vessel, as the property of the consignee, does not defeat the right of the consignor to stop them in transitu.
    Though the right of stoppage in transitu on the part of the consignor is adverse to that of the consignee, yet the consignor’s right of stoppage is not defeated by his obtaining from the consignee a writing, in which the consignee declares that he revokes the order for the consignment, declines to receive the goods, and requests the master of the ship, or any other person having the goods in his custody, to deliver ‘hem to the consignor.
    This was an action of replevin for eight cases of steel and a cask of hardware. The case was tried before Wilde J. and was submitted to the Court on a report of the evidence.
    The plaintiffs were merchants and manufacturers, of Shef-Aeld in England, and original owners of the goods in question. The goods were ordered by John K. Pickering of Portsmouth, New Hampshire ; and the invoice was dated February 16th, 1828. They were, to be paid for in four months from the date of the invoice ; and were shipped on board the Corvo, at Liverpool, for Boston, by the shipping agents of the plaintiffs, for account and risk of Pickering and consigned to him. The Corvo arrived at Boston, April 26, 1828, and was entered at the customhouse, April 28, 1828, on which day Pickering failed.
    On April 29th, Elijah Vose commenced a suit against Pickering, and delivered the writ to this defendant, directing him to attach Pickering’s property on board the Corvo. The defendant made the following return on this writ. “ Suffolk ss. Boston, April 29, 1828. At ten o’clock A. M. by virtue of this writ I attached, &c. [certain goods are described by marks and numbers] the same having been shown to me as tne property of the within-named defendant, and then laden on board the ship Corvo of Boston, and the said merchandise was afterwards, on the third day of May, replevied and taken out of my hands and possession on a writ in favor of George Naylor,” &c.
    The facts relating to this attachment, if any thing contrary to the officer’s return can be set up in this action, which is disputed by the defendant, are these.
    At the time the writ was delivered to the defendant, Vose gave him a description of the marks and numbers of Pickering’s goods, with directions to attach them, and at ten o’clock A. M. April 29th, before the Corvo had begun to discharge, the defendant went on board, with a keeper, but did not go below, or see the goods. The defendant then paid the freight of the goods to the master of the Corvo; and deputed his keeper to keep possession of them. The goods being stowed in the lower hold, and covered with goods of other shippers, could not be conveniently come at until the 1st or 2d of May, when the cask of hardware was hoisted on deck, but the other packages not being in sight, the cask, In the evening, was by order of the keeper and the customhouse officer on board, stowed between decks, where it remained until May 3d, when all the goods in controversy were taken from the vessel by direction of the keeper, who had continued on board the whole time, and placed in the customhouse store, and the customhouse' storekeeper was substituted by Dennie as keeper of the goods, and he continued in custody of the same until they were replevied by the plaintiffs.
    On April 29, William B. Lang, the plaintiffs’ agent at Boston, went to Portsmouth, and on the 30th of April procured from Pickering a writing, signed by Pickering, which stated that he had ordered goods of Naylor & Sanderson, part of which had arrived at Boston, of which the bill of lading and invoice were accidentally mislaid, and that other goods were expected to arrive, and that by reason of misfortune in business he was unable to receive and pay for the goods ; and concluded, “Now, therefore, I hereby revoke and countermand the orders I gave for said goods, and decline to receive the same or any part thereof, and I hereby request the master of any vessel or other person who may have said goods, or any part of them in their custody, to deliver the same to William Bailey Lang or his order, the agent in this country for the aforesaid houses.” When Pickering delivered this writing to Lang, it was with an understanding that he was absolved from all liability for the goods. Neither Pickering nor Lang knew of the attachment at this time. At nine o’clock on the morn ing of May 1st, Lang went on board the Corvo, and exhibited to the master the paper signed by Pickering, and demanded possession of the goods, offering to pay the freight. He was at this time informed that the goods had not been come at. He went again on board about ten o’clock the same morning, and then went below and searched for the goods, but could not find them, and repeated his demand for them. He testified that he kept watch of the vessel from time to time, in order to ascertain when the goods were come at, and from this time till they were replevied,- he attended to but little else, being always ready and desirous of doing every thing on behalf of the plaintiffs to obtain possession of the goods. On the afternoon of May 1st, Lang, being on board the Corvo, saw the cask of hardware, and pointed it out to the master, and told him not to deliver it to any one but himself. On the 3d of May, Lang obtained possession of the goods by the writ of replevin.
    The steel, which was a part of the goods attached, was sold by Lang to the Newmarket Manufacturing Company, under the following circumstances. Pickering had agreed with the agent of the company to import two tons of steel of assorted sizes, and sell it to them at 18 cents a pound, on a credit of four or six months. Pickering, in consequence, ordered the steel in controversy, being however double the quantity contracted for by the company. Lang testified that he made no bargain with Pickering respecting the goods, when he obtained from him the relinquishment of the consignment, but thinks it likely that Pickering told him that the steel was originally ordered for the company. Lang told Pickering that he should be glad to dispose of it at cost and charges, and on the 3d of May wrote to Pickering a letter, in which, after mentioning the attachment, and that he had obtained possession of the goods, he says, “ As I promised, I will let you have, for approved paper, the lot of steel at cost and charges, time four months from 16th of February last; or if two months’ more credit is wanted, it may be had by adding interest. I should like to have your early reply, so I may avoid losing other offers, if you do not accept.” This letter was handed by Pickering to the agent of the Newmarket Manufacturing Company ; and the company accordingly purchased the steel on the terms proposed in the letter. The steel, at cost and charges, came to about 16 cents a pound ; and Pickering has claimed from the company the difference between that sum and 18 cents, the price for which he had contracted to furnish rt, as being the profit justly belonging to him.
    Judgment was to be given by the Court, according to their opinion on the foregoing facts.
    
      March 26th.
    
    
      J- Pickering and Cooke, for the plaintiffs.
    The attachment supposed to have been made by the defendant on April 29th, was a nullity, because he did not then take possession of or even see the goods Lane v. Jackson, 5 Mass. R. 163; Bond v. Padelford, 12 Mass. R. 394; Phillips v. Bridge, 11 Mass. R. 242; Lyman v. Lyman, 11 Mass. R. 317; Knap v. Sprague, 9 Mass. R. 258; Vinton v. Bradford, 13 Mass. R. 114; Denny v. Warren, 16 Mass. R. 420; Bagley v. White, 4 Pick. 395. Besides, it is doubtful whether an attachment can be made of goods on board a vessel, before they are entered at the customhouse. Dennie v. Harris, 5 Pick. 120. As this action is brought by a stranger to the suit, the return of the officer is not conclusive, but may be contradicted.
    But if the attachment was good in point of form, still it is in operative, as Pickering had rescinded the contract before the goods came into his possession. Scholfield v. Bell, 14 Mass. R. 40. The failure of Pickering gave the consignors a right to stop the goods in transitu ; and the notice which was given by Lang to the master, of this claim of the consignors, was sufficient, without his actually taking possession of the goods at the time. And the right of'the plaintiffs to stop in transitu, could not be defeated by an intervening attachment. Smith v. Goss, 1 Campb. 282; Feise v. Wray, 3 East, 93; Northey v. Field, 2 Esp. R. 613 ; Lift v. Cowley, 7 Taunt. 169; Parker v. MlIver, 1 Desauss. 274.
    S. Hubbard and W. Jlustin, for the defendant.
    The return of the officer is conclusive, as to the fact of the attachment, in this action ; it is only in an action for a false return, that it can be contradicted. Slayton v. Chester, 4 Mass. R. 478; Bolt v. Burnell, 9 Mass. R. 96; Eastabrook v. Hapgood, 10 Mass. R. 313; Bean v. Parker, 17 Mass. R. 591 [Whitaker v. Sumner, 7 Pick. 551.]
    But the facts in the case show a valid attachment. The officer, by going on board the vessel, paying the freight to the master and thus removing his lien, and putting a keeper on board, obtained the possession and control of the goods. It was not necessary that he should see them. The lien of the United States for duties does not invalidate the attachment, for it is settled, that an attachment may be made of property subject to a lien. Burlingame v. Bell, 16 Mass. R. 318.
    The right of stoppage in transitu depends upon the insolvency of the consignee. Abbott on Ship. 368. But Pickering was not insolvent on April 26th, when the Corvo arrived. The right of stoppage in transitu therefore could not arise. Stubbs v. Lund, 7 Mass. R. 453; Ilsley v. Stubbs, 9 Mass R. 65. Independently of the right of stopping in transitu, the plaintiffs can have no claim to these goods, for the property was completely vested in Pickering as soon as it was sent from Sheffield.
    The stopping in transitu, by the consignor, must be adverse. Siffken v. Wray, 6 East, 371; Lane v Jackson, 5 Mass. R. 102. In the present case, Lang, the plaintiffs’ agent, obtained the consent of Pickering, the consignee, to his taking possession of the goods. Taking the goods by virtue of this bargain, was not stopping them in transitu; for which Pickering’s consent was not necessary. The bargain which Lang made with Pickering respecting the sale of the steel to the Newmarket company, on which Pickering claimed a commission, shows a control of the property by Pickering, and pre vents the proceedings of Lang from amounting to a stoppage in transitu.
    
    
      June 27th.
    
    Pickering, in reply',
    said that the right of stopping in transitu would be nugatory, if it ceased the very instant the vessel arrived and it was necessary for the consignor to go to sea in order to exercise it. The claim made by Lang was seasonable, being made before the goods were entered or taken out of the vessel. Coates v. Railton, 6 Barn. & Cressw. 423; 2 Kent’s Com. 430; Mills v. Ball, 2 Bos. & Pul. 457; Ab bott on Ship. 373, 375.
    
      
       The judgment in this case was reversed by the Supreme Court of the United States, at January term 1830.
    
   Parker C. J.

delivered the opinion of the Court. The question presented by this report is, whether the plaintiffs have the property in the goods taken by the defendant under the writ of attachment in virtue of which he acted ; and this depends upon their right to rescind the contract of sale, under which the goods were shipped by their agent in Liverpool. All the facts appear in this case, which by the law merchant are necessary to constitute the right of the vendor to take the goods, before they come into the possession of the vendee. The goods were shipped by the plaintiffs in England to Pickering, a merchant in Portsmouth, on an order sent out by him ; they were shipped on his account and risk, upon a credit of four months ; they arrived in the port of Boston, but before they were delivered to the consignee, or were unladen from the vessel, they were demanded by an agent of the plaintiffs, who had procured a relinquishment of the consignment, the consignee having .become insolvent. There can be no doubt that the goods were then in transitu ; for notwithstanding the arrival of the vessel, they had not been discharged from the ship, nor had they been taken possession of by any one for the consignee.

What then are the objections to the plaintiffs’ right to recover ? The owner or master of the ship had no right to retain the goods ; for the freight, on account of which alone they had a lien, had been offered to be paid.

But it is said, that before any claim was made for the goods by the agent of the plaintiffs, they were attached by the defendant as the property of Pickering ; and the return of the officer is said to be conclusive of this fact. The fact of an attachment is disputed, because by the paroi evidence it appears, that there was no actual seizure of the goods by the officer, before the claim of the plaintiffs was made known to the master of the ship. On the other hand it is said, that the offir f s return is conclusive of the attachment ; and even if it is not conclusive, the officer having made a demand of the goods, tendered the freight, placed a keeper in the vessel with orders to take possession of the goods as they should come out of the hold, and afterwards having obtained actual possession, the attachment was complete. We are inclined to this opinion, but we do not think the point material. For if the plaintiffs had the right of stopping and reclaiming the goods, and duly exercised the right, the intervening attachment could not defeat it. This right is founded upon an implied condition in the sale, that if the vendee should become actually insolvent, between the shipment of the goods and the reception of them by the vendee, the vendor shall have the right to rescind the contract and reclaim the goods. To allow an attachment before the transit is at an end, to have effect, will be to defeat a useful and necessary provision of the law merchant.

But it is thought, that the transactions between the agent of the plaintiffs and the consignee show that the right of stopping in transitu did not exist, or that it was not so exercised as to vest the property in the plaintiffs ; because it is alleged, that the right is adverse to that of the consignee, and must be exercised adversely ; whereas the act of the agent was with the consent and in virtue of an agreement with the consignee, as is proved by the writings and papers referred to. The case of Sijfken v. Wray, 6 East, 371, has been cited in support of this doctrine. There are other cases of the same character; all of which show, that when the vendor claims title under the vendee, as by indorsement of the bill of lading or by any other act of transfer, he does not rely upon his own right of stopping in transitu ; but on the contrary, he affirms and establishes the sale in a manner inconsistent with that right. We suppose this doctrine is correct; indeed it has been adopted by this Court in the case of Lane v. Jackson, cited in the argument. But we understand this doctrine to mean no more, than that the right of stopping in transitu cannot be exercised under a title derived from the consignee ; not that it shall be exercised in hostility to him ; for we find it laid down dn the same case of Lane v. Jackson, and in Feise v. Wray, 3 East, 93, that the consignment may be refused, and that, even by the direction of the consignee, some stranger may be appointed to take possession of the goods for the consignor, though he may be absent, and if he consents afterward, the rescinding of the sale is complete.

This explanation of the doctrine is recognised in Scholfield v. Bell, 14 Mass. R. 40, in which case, even the indorsement of the bill of lading by the consignee was held not to affect the right of stopping in transitu, it appearing that the act was done with a view to facilitate the rescission of the contract.

In this case, the consignee has done nothing more than relinquish his consignment, and the plaintiffs depend upon .their original property, and not upon any transfer or conveyance from the vendee.

It is objected also to the exercise of this right by the plaintiffs, that the consignee did not become insolvent until after the arrival of the goods ; by which is supposed to be meant, that his insolvency was not known or declared. But we do not see how this can affect the question. We do not find, that the right of stopping depends upon a declared insolvency or open bankruptcy before the arrival of the goods. It is enough that the affairs of the consignee are so involved, that ne is enable to pay for the goods, if he was to pay on delivcry ; or that he has become actually insolvent before he shall have taken possession.

The insolvency of this consignee was public before the goods came to his possession, and before the plaintiffs claimed them ; which is enough to establish their right. 
      
       See Long on Sales, (Band’s ed.) 308 et seq.; Chitty on Contr. (4th Am ed.) 342 et seq
      
     
      
       But ace Harris v. Bennie, 3 Peters, 292; Bennie v. Harris, 9 Pick. 364. 
         Long on Sales, (Rand’s ed.) 330.
     
      
       The stoppage of goods in transitu does not rescind the contract of sale, but places the parties in the same situation, as nearly as may be, in which they would have been, if the vendor had not parted with the possession. Neiohall v. Vargas, 35 Maine R. (3 Shepley,) 314 ; Long on Sales, (Rand's ed.) 337, and see cases cited in note 3 ; Hodgson v, Loy, 7 T. R. 440 ; Tucker v. Humphreys, 4 Bingh. 516; Bloxam v. Saunders, 4 Barn. & Cressw. 941.
     
      
      
         See Chitty on Contr. (4th Am. ed.) 345 ; Walter v. Ross, 2 Wash. Giro C R. 294 ; Hollingsworth v. Napier, 3 Gaines's R. 162.
     
      
       See Long on Sales (Rand’s ed.) 307 et seq.; Chitty on Contr. (4th Am. ed.) 341, 342; Newhall v. Vargas_ 15 Maine R. (3 Shepley,) 319.
     