SECTION II.

OF THE VENDOR'S LIEN.

666. SUPPOSING the reasons to be well founded, which have been assigned in the preceding section, for holding that there is a distinction which ought to be marked between the vendor's right of lien, and the right of stoppage in transitu, the following cases seem to be examples of the former right more properly than of the latter.

667. I. Suppose that the thing sold is, at the time of the sale, in the actual possession of the vendor; that it is not the wish or intention of the parties to remove it immediately into the actual possession of the vendee, and that therefore the contract is executed on the part of the vendor, not by an actual delivery, but by the performance of some act, such as marking the goods as the property of the vendee, or making him pay warehouse rent, so as to indicate that the vendor holds the goods thenceforward for behoof of the vendee; in this situation the question arises, whether these acts, which are not truly acts of delivery, shall be held constructione juris equivalent to delivery, so as to make the goods indefeasibly and absolutely the property of the vendee, and to deprive the vendor of any right to resort to them in security of the price.

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668. But this question does not seem to be a question of stoppage in transitu, because, from the nature of the transaction, and the acts which are performed, the goods never can be in a state of transitus at any one moment of the period which intervenes between the completion of the contract, and the performance of the act which is held equivalent to delivery, and by which the vendor loses his security for the price; for, let it be observed what is the res gesta.

By the completion of the contract, the property passes to the vendee, but the goods still remain in the possession of the vendor, and they continue in his possession, and not in any state of transitus, up to the moment when the act of constructive delivery is performed, the effect of which is to make the vendor hold them for behoof of the vendee, and to take away his right to resort to them in security of the price.

By the very same act, therefore, which is held, constructione juris to change the possession, and at the very same moment, the possession of the vendor for his own behoof ceases, and his possession for behoof of the vendee begins; and there is no interval during which the goods can properly be considered as in tran

situ.

669. It is true, there is an interval between the completion of the contract and the act of constructive delivery, during which the vendor has a security over the goods for the price, and after the lapse of which he has no such security, the goods being from that time the absolute and indefeasible property of the vendee.

But during this interval the goods are not in a state of transitus, because they continue in the actual possession of the vendor. His security therefore, during this interval, arises from a right of lien resting on his possession of the goods, and not from a right to stop in transitu, the exercise of which necessarily supposes that the vendor has ceded the possession, and consists in his resuming it *.

670. I shall now proceed to state the decisions which have been given in cases of the description above mentioned, where the goods sold were, at the time of the sale, in the vondor's own hands, and where the question occurred, whether, upon the insolvency of the vendee, the vendor had a lien in security of the price.

The statement of these cases will serve both to explain more fully the nature and extent of the vendor's lien, and to mark the point at which the state of transitus properly commences, and at which the right of the vendor changes from a lien to a right of stoppage in transitu.

671. I have already stated the general rule, that the vendor has a lien in security of the price over the thing sold, while it remains in his possession, and also that this lien is lost when he ceases to have the possession.

It has further been stated that the vendor may be divested of his lien, not only by the actual delivery of the thing sold to the vendee, but also by the performance of certain acts, which, although they do not give the vendee the actual possession of the

This view is in some measure confirmed by a note of Lord Chief Justice Abbott, in which certain cases of the kind alluded to in the text, are held not to be cases of stoppage in transitu, although stated to be so in the Reports, Abbott, 391, Note y.

thing in his own person, are held, constructione juris, to be equivalent to actual delivery, and have the effect of vesting the absolute and indefeasible property in the vendee.

672. The following cases afford examples of the vendor being divested of his lien by such acts of constructive delivery.

In an action of a trover for a quantity of oil, it appeared that the defendants, who were warehousemen, on the 19th of April, sold the oil in question, then lying in their warehouses, to J. S., to be paid for by his bill, at six months. J. S. having given his acceptance accordingly, on the 1st of August following, sold the oil to the plaintiffs, who purchased it bona fide, and paid for it at the rate agreed on.

The oil, which still remained in the defendants' possession, was demanded of them by the plaintiffs about the end of October, when they said that J. S. had failed before his acceptance was due, and that they would not deliver up the oil until they were paid for it.

Their clerk now denied that they had ever transferred the oil in their books to the account of J. S.; but it appeared that they had received warehouse-rent from him, for its remaining in their warehouses after the period when it ought to have been taken away, according to the terms of sale.

Upon this case Lord Ellenborough said, the acceptance of warehouse-rent was a complete transfer of the goods to the purchaser. If I pay for part of a warehouse, so much of it is mine. This is an executed delivery by the seller to the buyer. If there was any conspiracy or contrivance on the part of the plaintiffs to cheat the defendants out of the price of the goods, proof of that will be an answer to this action; but it would be overturning all principles to allow a man to say, after accepting ⚫ warehouse-rent, the goods are still in my possession, and I will detain them till I am paid.' The transitus was at an end, the goods were transferred to the person who paid the rent, as much as if they had been removed to his own warehouse, and there deposited under lock and key. A verdict was accordingly found for the plaintiffs, Hurry v. Mangles, 1 Çampb. 452.

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So, in an action of trover for timber, it appeared at the trial that the timber was originally the property of the defendants, and was lying at their wharf on 25th November, 1809, when it was

sold by them to W. and H. Dixon, and was thereupon jointly marked by the servants and agent of the defendants, and of the Dixons, with the letters W. H. D., and with a private mark of the latter in the presence of the defendants. The Dixons gave bills for the price. Part of the timber was removed, and the part which remained was sold by the Dixons in December to the plaintiff, who paid them for the same. Between the 16th and 29th of December, the plaintiff's agent came to the wharf with a notice to the defendants from the Dixons to deliver the timber to the plaintiff. The agent there saw Hughes, one of the defendants, whom he informed of the re-sale by the Dixons to the plaintiff, to which Hughes answered, that it was very well, and also went out, and shewed the timber to the plaintiff's agent, who put W. S., the plaintiff's initials, upon it, some of it being so marked in presence of Hughes. The timber was not proved to have been measured on the part of the plaintiff, but he had given his agent an account of it, which Hughes compared with his own account of it, and it was found that they agreed. The Dixons having failed without paying the original price to the defendants, the latter, besides attempting to stop the timber which had been removed, refused to give up that part of it which remained in their wharf, and which had been resold in the manner above detailed, by the Dixons to the plaintiff. A verdict was found for the plaintiff, and a new trial having been moved for, Lord Ellenborough, in the course of the argument, said,

The change of mark from A to B, on bales of goods in a warehouse, by the direction of the parties, was clearly held by the • House of Lords, in a late case, to operate as an actual delivery of the goods; and this after three days argument at their bar, though I own it appeared to ine, that the case only required to < be stated in order to be disposed of at once.'

Afterwards, in pronouncing judgment, his Lordship said, 'The • defendants were the only persons who could contravene the sale and delivery to the plaintiff from the Dixons, and when that sale ' was made known to the defendant, Hughes, before the 29th of • December, he assented to it, by saying, very well, and to the 'marking of the timber by the plaintiff's agent, which took place • at the same time.

If that be not an executed delivery, I know not what is so;

then all inquiry as to what happened after the 29th of December is beside the purpose. It signifies nothing what was the ulterior destination of the goods after an executed delivery. If, indeed, the marking of the timber by the plaintiff's agent at • Moat Bridge had not been done with the knowledge and consent of the defendants, the vendors, it may be admitted, for this purpose, that they would not have been bound further than they were already bound by what had taken place between them and the original vendees; but by what had passed on or before the 29th, the defendants recognised the transfer of the property to the plaintiff, and from that time a new person became liable to 'them for the wharfage. The other judges concurred, Stoveld v. Hughes, 14 East, 308.

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The following case affords an illustration of the same principle, although the question before the Court arose out of an objection to the constructive delivery, as not being sufficient to satisfy the statute of frauds.

This was an action brought to recover the price of two horses said to have been sold to the defendant. It appeared at the trial that the plaintiff, who kept a livery stable, and dealt in horses, having demanded 180 guineas for these, the defendant, after offering a less price, which was rejected, at length sent word ‹ that the horses were his; but as he had neither servant nor sta'ble, the plaintiff must keep them at livery for him.' The plaintiff, upon this, removed them out of his sale stable into another stable.

It was contended for the defendant, that such a constructive delivery was not sufficient to take the case out of the statute. But the judge being of opinion that there was a sufficient delivery, the jury found a verdict for the plaintiff.

Upon a motion to set aside the verdict in the Court of Common Pleas, Mansfield, C. J. delivered the following judgment: The objection made to this verdict was the want of a memorandum in writing of the sale and of a delivery. I thought at the trial 'there was no need of a memorandum in writing, because of the 'direction given that the horses should stand at livery; they were, in fact, put into another stable, but that is wholly immate'rial. It was afterwards argued, that this was not a sufficient delivery; but, upon consideration, we think, that the horses were completely the horses of the defendant, and that when they stood