O'brien v. Norris, Caldwell & Co.

Bartol, J,, delivered the opinion of this court: The fund in controversy is the proceeds arising from the sale of certain goods, taken under an attachment, at the suit of the appellants against Isaac N. Turner, their non-resident debtor. To this fund, the appellees filed their claim, upon the ground that, as vendors of the goods to Turner, they had the right to stop them in transitu. If the right of stoppage in transitu existed in the appellees, at the time the attachment was laid, and when their claim was filed; then, in the judgment of this court, their right could not be defeated or impaired by the attachment. Smith vs. Goss, 1 Camp., 282.

Naylor, et al., vs. Dennie, 8 Pick., 199 . Buckley vs. Furniss, 15 Wend., 137, 144 , ¹³⁰ Butler vs. Woolcot, 2 N. R., 64. Nicholls vs. Lefeuvre, 2 Bing., N. C., 83. Hays & Black vs. Mouille & Co., 14 Penn.

State Rep., 48. Nor could the rights of the parties be altered by the sale of the goods, under the court’s order. That order was a mere interlocutory proceeding, passed under the Act of 1839, ch. 39, the effect of "which was to convert the goods into money, which remained in the hands of the sheriff, to await the determination of the attachment, subject to any claims that might have been asserted against the goods themselves. There is no force in the objection made by the appellants, that the right of stoppage, even if itexisted in this case, hasneverbeen exercised. “It is not requisite,” (says Kent, vol. 2, page 543 marg.,) “that he (the vendor) should obtain actual possession of the goods before they come to the hands of the vendee, nor is there any specific form requisite for the stoppage of goods in transitu; thought it is well settled that the bankruptcy of the buyer is not, of itself, tantamount to a stoppage in transitu.

But a demand of the goods of the carrier, or notice to him to stop the goods, or an assertion of the vendor’s right by an entry of the goods at the custom house, ór a claim and endeavor to get possession, is equivalent to an actual stoppage of the goods.” See Northey & Lewis vs. Field, 2 Esp. Rep., 613, and the other authorities referred to in Note (a.) 2 Kent, 543 marg. Being of the opinion that the filing of the claim to the fund in court, by the appellees in this case, was a sufficient exercise of the right of stoppage in transitu, if such a right existed, it remains only to examine whether, under the facts and circumstances enumerated in the appellees’ prayer, they were entitled to- exercise such right. The right of stoppage in transitu is thus defined by Chancellor Kent, vol. 2, page 540 marg. ‘-‘It is the right which the vendor, when he sells goods on \ a: credit to another, has, of resuming the possession of the goods while they are in the hands of a carrier or middleman, in their .transit to the consignee or vendee, and before they arrive into his actual possession, or at the destination which ¹³¹ he has appointed for them, on his becoming bankrupt or insolvent.” The same author says, (page 542, marg.): “The right came from courts of equity, and was first established in Wiseman vs. Vendeputt, 2 Vern.

Rep., 203, and its apparent equity recommended the adoption of it in the courts of law, as a legal right. It would be very unreasonable to allow the goods of the vendor to be appropriated to the payment of the creditors of the vendee, who fails before payment, and before the goods have actually reached him.” This right is now firmly established in the law, and is greatly favored by the courts, as “tending to the furtherance of justice.” 1 Term Rep., 445. 1 East., 515. There are, however, certain prescribed limits to the right, and the question here is, whether the facts and circumstances of this case, as they are enumerated in the court’s instruction, and found