The opinion of the court was delivered by
Rogers, J.
The facts on which the question arises are particularly set forth in the case stated. It is agreed, that unless the plaintiffs, under the circumstances, had a right of stoppage in transitu, the assignee is entitled to the money. Without entering into a general discussion of the law of stoppage in transitu, it may be sufficient to observe, as a preliminary remark, that as between the original consignor and consignee, it is now clear, that the consignee-has a right to seize the goods in their transit or passage from the consignor to the consignee, if the consignee, before they are delivered, becomes insolvent.
This right is now well established by law; although the extent of the doctrine has been a matter of frequent discussion, and some difficulty.
The general right being admitted, the inquiry will-be, whether this case comes within the principles of the judicial adjudications. To whatever principles the right, of stoppage in transitu be referred, it is plain, that if the goods be once actually delivered into the possession of the consignee or purchaser, the property is thereby absolutely vested in him. It is the same if the delivery be to his servant or correspondent authorized by him to receive the goods; for the possession Of either of them, is, in law, a delivery to the consignee himself. The question always is, whether the party to whom the goods actually came be an agent, so far representing his principal, as to make the delivery to him, a full, effectual, and final delivery to the principal, as contra-distinguished from a delivery to a person virtually acting as a carriel’, or mean of [18]*18conveyance to, or on account of the principal, in a mere course of transit towards him. Dixon v. Baldwen, 5 East, 184. Lawes on Charter Parties, ch. 3, 492. Brown’s Law of Sales, 451. 4 Esp. 243. Leeds v. Wright.
If these principles be fairly deducible from the cases, and that they are is abundantly plain, from the instances I have cited, then this, independently of some cases which the industry of counsel has pressed into their service, may be considered as a question of easy solution. The relation of the master is that of a special agent to his employer. He so far represents his principal, as to make a delivery to him, (in the absence of a special agreement to the contrary,) a full, effectual, and final delivery to the principal himself. The master of the ship cannot, with any propriety, be considered as a common carrier, or mere middle man, between the consignor and consignee, tie is under the absolute control of Sperry and Stanshury, liable to be dismissed at their will and pleasure, in the same manner as any other servant may be discharged from the service of his employer. After the delivery of the goods, at Malaga, to the ' captain, Bolin and Co. ceased to have any control over them. Every connexion between the vendors and the agent was atan end, and the agent became alone answerable to his employers. Nor, had the agent any demands against the vendors. Not so in the case of á common carrier or middle man, who, for certain purposes, is considered as the agent of both parties, and, against whom, in certain cases, either the vendor or vendee would have a right of action. So, also, in the event of the insolvency of the vendee, or refusal to take the goods, a common carrier would have an action against the vendor for his freight. So much is the master considered as the special and exclusive agent of his employer, that in no case would he have been justified in a redelivery of the goods to the vendors. This being the law, it is a difficult matter to distinguish such a’ delivery from one.made in a man’s warehouse, particularly if the warehouse be not at the place of his abode. Indeed I do not understand this to be deniedj but the counsel for the, plaintiffs seek to place this ease on different grounds. It has been strenuously contended, that the right of stoppage in transitu exists in all cases where the goods have been delivered to any one for transportation, and continues until they reach the vendee, and are subject to his dominion, and it matters not in what way they are transmitted, or what agents are employed.
Brown, in his treatise on the Law of Sales, 506, deduces this principle from an elaborate review of all the authorities. “It seems clear,” says the learned author, “ that the reason why goods are liable to be stopped in the hands of a carrier or packer, is not because a delivery to such person on account of the vendee is only a constructive delivery, but because it is a delivery for the purpose of transport, or in the course of the conveyance of the goods to the vendee.”
[19]*19The general rule, therefore, seems to be, not that the goods may be stopped after a delivery merely constructive, and that nothing short of an actual delivery vests the property indefeasibly in the vendee, but that the state of Iransiius is put an end to by delivery either actual or constructive, and that it is only when the constructive delivery is for the purpose of transport, or is connected with the transmission of the goods, that an exception is admitted to this rule, and that they remain liable to stoppage after such delivery. In all other cases, constructive delivery is equally effectual as actual delivery to put an end to the state of transilus. Instead of its being a general rule, therefore, that goods are liable to stoppage after a delivery merely constructive, the general rule seems to be exactly the reverse, and it is merely an exception to the general rule, that goods are liable to stoppage after a constructive delivery to a carrier.
■ If this be the true rule, it is incumbent upon the plaintiffs to bring themselves within the benefit of the exception. The case finds, that Sperry and Stansbury, to whom the goods were consigned, were the owners of the ship of which Captain King, to Whom the goods were delivered, was master. I think nothing of the phraseology of the bill of lading, to be delivered to Sperry and Stansbury. It is a mere form of expression, and was not intended to vary the ordinary mode of delivery to a known agent, nor was it meant as a special reservation of a right of stoppage in transitu, until, in the language of Lord Mansfield, they shall come to the corporal touch of the vendees. Nor do I think there is anything in the letter of instructions, which differs this from the common course of dealing between vendor and vendee. In the bill of lading, the consignors recognize the relation in which Captain King stood to his employers, who were the owners, of the ship, which is altogether inconsistent with the character of a common carrier, used as a mere means of transportation between the vendor and vendee. I look upon this not as a case of constructive, but of actual delivery, and in this opinion I am supported by Mr. Lawes in his work on Charter Parties and Stoppage in Transitu, page 492, where an actual delivery is spoken of in opposition to a constructive or - supposed delivery to some third person (not the immediate agent of the vendee or consignee) for the purpose of forwarding the goods to him or his agent. Mr. Bell also uses the terms" actual delivery in the same sense. “Actual delivery,” says the commentator, No. 127, “is held, commonly, to imply two distinct acts: the ceding the corporal possession by the seller or his servants, and the actual apprehension of corporal possession by the buyer or his servants, or by some person authorized by him to receive the goods, as his representative for the purpose of disposal, or of custody, not of mere conveyance.” To the same effect is Brown in his treatise on sales, 45L Actual'delivery, then, I understand to consist in the giving real possession of the thing sold to the vendee or his servants, or spe[20]*20cial agents, who are identified with him in law, and represent him. Constructive delivery is a general term, comprehending all those acts, which although not truly conferring a real possession of the thing sold on the vendee, have been held construclione juris, equivalent to acts of real delivery. In this sense constructive delivery includes symbolical delivery, and all those Iraditiones fictas, which have been admitted into the law as sufficient to vest the absolute property in the vendee, and bar the rights of lien and stoppage in transitu; such as marking and setting apart the goods as belonging to the vendee, charging him with warehouse rent, &c.
Whilst, therefore, I accede to the principle, not, however, to the extent claimed by the plaintiffs, I altogether deny its application to the circumstances of this case. In all cases of actual delivery the transitus ceases; so, also, in some w'here the delivery is merely constructive. The doctrine of Lord Mansfield, that the irán-, situs continues until the goods come to the corporal touch of the vendee, and of Buller, that they must come into his actual possession, has been long since exploded. The extent of the doctrine in relation to constructive delivery it is unnecessary to trace. It will be sufficient for us, and more safe, to confine ourselves to the question at issue between the parties. I shall now proceed to inquire how far the authorities are in accordance with these principies. We do not think it necessary, nor indeed proper, to examine all the decisions from Snee v. Prescott, which is the leading casé, but shall content ourselves with noticing such as have an immediate bearing on the question; nor indeed, should we think any further investigation required, were not this, in some measure, untrodden ground in our courts. Those who are desirous of seeing a complete examination of the law of stoppage in transitu, will be amply gratified by a resort to the elementary treatises of Abbott on Shipping, Lawes on Charter Parties, and particularly to Brown’s learned treatise on the Law of Sales.
The first case, and certainly the most important, which immediately bears on the question, is Fowler and Ml Taggart, the proper name of which is said to be Fowler or Kymer, et al, and was tried before Mr. Justice Grose, at Bristol. The bankrupts, Hunter and Co. were in possession of a ship let to them tor a term of three years, at fifty-two pounds and ten shillings per month, they finding stock and provisions for the ship, and paying the master; during which time they were to have the entire disposition of the ship, and the complete control of her. The ship, (it appears in the statement of the case, which is given, as is said, more particularly in 3 East, 396, Boethlinck and Inglis,) had been on a voyage to Alexandria, and had the goods put on board her, to carry them on another voyage to the same place, not for the purpose of conveying them from the plaintiffs to the bankrupts, but that they might be sent by the bankrupts, upon a mercantile adventure, for which they had bought them. The principle of Fowler and Kymer, I un[21]*21derstand to be this, that inasmuch as ,the bankrupts had chartered the vessel for a term of years, and not merely for the voyage, found the stock and provisions, employed and paid the master, had the entire disposition of the ship, and complete control over her, they were pro tempore the owners, and that the master, under these circumstances, became the special and exclusive agent of the bankrupts, and that therefore a delivery to him was a delivery to bankrupts themselves; that the transitus was at an end, or more properly speaking never commenced, and that the delivery between the vendor and vendee was absolute and final. The special facts, (which are for the first time stated by Lawrence, J., in Boehtlinck v. Inglis, 3 East, 396, and which are somewhat differently stated in 1 East, 522, and which appear to have been read from the brief in the cause, 7 T. R. 442,) that the goods were bought, not for the purpose of conveying them from the plaintiffs to the bankrupts, but that they might be sent by the bankrupts upon a mercantile adventure, was not the ground of the decision, as appears from the opinion of Lawrence, J., in the same case. He says, speaking of Fowler and Kymer, there the delivery was complete; and the facts of that case differ widely from this, (meaning Boehilinck v. Inglis,) where Crane had no control over the ship, and had merely contracted with the master, to employ his ship in fetching goods for him.
In Englis and others v. Usherwood, 1 East, 523, the principle which I have extracted from Foxoler and Kymer, is recognized. The decision of this case, says Lord Kenyon, will not trench upon the general rule of law, respecting the rights of stopping goods in transitu, but giving the plaintiffs the full benefit of the argument, that the delivery of the goods on board a chartered vessel was a delivery to the bankrupts, still the circumstance of the Russian ordinance set forth in this case, varies it very importantly, and takes it out of the general rule. Grose, J;, who, let it be remembered, was the judge who ruled the case of Fowler and Kymer, and who ought to have understood the grounds of his decision, at least as well as Justice Lawrence, says; “ I agree to the general rule, that the delivery of goods by the vendors on board a ship chartered by the vendee, is a delivery to the vendee himself. ” Lawrence, J., says, “ If thisfransaetion had happened in a-part of this kingdom, the delivery of the goods on board a ship chartered by the bankrupt^, would in effect, have been a delivery to him.” I do not understand the learned judge, as meaning to convey the idea, that a delivery in a foreign port would not have the same effect; for without doubt the captain would have been as much the special and exclusive agent of his employer, in one case as the other. It is the assertion of a general principle made in reference to the case of Fowler and Kymer, which had just before been more intelligibly expressed, and with a better knowledge of the grounds of the decision by Justice Grose, who ruled the cause.
[22]*22So-also Le Blanc, J., says, “ I put the case of Inglis and Usherwood on the Russian ordinance. The laws of Russia make all the difference between this and the other cases referred to.”
It will be recollected that the whole court were speaking in reference to Fowler and Kymer, as it then appeared, and not with the • view to the subsequent discovery of Lawrence, J.
It was once supposed to be a general rule, that the delivery of goods by the vendor on board a ship chartered by the vendee, was a delivery to the vendee himself, so as to preclude the vendor’s right of stoppage in transitu. And this opinion was entertained on the authority of the case of Fowler and Kymer. This misrepresentation has, I am inclined to believe, given rise to all the difficulty which has arisen in regard to this ease. It is not the delivery on board of a chartered ship, which precludes the vendor’s fight of stoppage in transitu, but it is the delivery to the master, when he can be considered in no other light than as the exclusive agent of the vendee, that it has this effect. Where, for instance, there was a charter party of affreightment, for the voyage, and where the master was not under the control of the vendee, he would be taken as a middle man, a mere means of conveyance between the vendor and vendee; and, in such a case, the transitus would not end until the delivery to the vendee himself.
I am aware that Chief Justice Parsons put the case upon a different principle, but, for the reasons I have stated, I cannot concur with him in the view he has taken. He seems to put the right of stoppage in irunsitu on the destination of the goods or final termition of the voyage, a distinction which with due deference, will be found unsatisfactory in its application, and productive of litigation. Once establish the doctrine that the right depends on such subtle distinctions,and we shall be as much plagued with cases to settle what is meant by the destination of the goods, and final termination of the voyage, as we have been to discover the kind of delivery which terminated the transitus. It is best to lay down a plain intelligible rule, easy in ' its application, and to leave the modification of the rule to the contract of the parties. The distinction for which Chief Justice Parsons contends, does not seem to have been cordially received by the courts of Massachusetts, nor is it supported by the current of cases. Why the final destination of the goods should make the difference is not very intelligible, and has not been explained. In this case, according to the authority of Stubbs v. Lund, 7 Mass. Rep. 453, if the goods, had been shipped for New Orleans, the transitus would have been at an end, but inasmuch as they were conveyed to Philadelphia, the transitus continues. The propriety of the rule is certainly not very obvious, nor should mercantile cases depend on such subtle grounds.
That the ultimate destination of the goods does not affect the right of stoppage in transitu, is seen from Dixon and Baldwen 5 East, 188. The question always is, not whether they had ar[23]*23rived at their ultimate destination, but whether the transitus was at an end between the parties. In Dixon and Baldwen, the goods had not arrived at the place of their ultimate destination, but inasmuch as they had between the vendor and vendee, the court decided that the vendor had not the right of stoppage in transitu.
In Richardson v. Goss, 3 Bos. & Pull. 127, a delivery to a warehouseman to whom the vend®» pays warehouse rent, will take away the 'right to stop in transitu, although the goods have not reached their ultimate destination. Nor is it necessary,’ in order to prevent the exercise of this right, that the goods should have reached the consignee’s place of abode, though they should even have been intended to be ultimately delivered there. And this position is proved by several cases, and particularly by Wright v. Lawes, 4 Esp. 82. A cargo of wines was consigned to the plaintiff, who lived at Norwich, and the usual course was to put goods intended for him into lighters, at Yarmouth, and forward them to Norwich: but his agent received the wines and not having sufficiently large cellars to hold them, deposited them in the cellars of the defendant at Yarmouth; and the plaintiff having been there and tasted the wines, that was held a complete delivery; as the carrier ceased to have any further care of them, having delivered them to the plaintiff’s agent, according to the bill of lading.
In opposition to these cases, Coates v. Railton, 6 Barnw. & Cressw. has been cited and relied on. Lord Tenterdon, before whom that cause was tried at Nisi Prius, certainly put it on the general ground, that as Lisbon was the ultimate destination of the goods, they continued to be in transitu when they were in the warehouse of the defendants; and that the plaintiffs, therefore, had a right to stop them. On the motion for a new trial, Lord Tentekdon re-asserted the general principle, but further said, that the fact of their having been the general agents of the purchaser, as well as warehousemen, did not make any difference. He also seems to have put the case on the special agreement and understanding of the parties, that there should be no absolute delivery, until the goods reached their final destination. If these should be the grounds on which the cause should be deemed to stand, it is unnecessary for me to quarrel with that case. It is nothing more than the assertion of a principle, which I have never disputed; that where there is a middle man between the vendor and vendee, the 'transitus does not end until the goods reach their final destination. Nor has it been disputed that a special agreement may control the general rule of stoppage in transitu between the parties. Although I do not deny the principle upon which, I understand, the cause to have been ruled, yet I very much doubt the application.of the principles to the facts of the cause. • Independently of the great names by which it is supported, I should have supposed that the warehouseman was not the general, but that he was the special and exclusive agent of the vendee; in which case the delivery to him would have' [24]*24been an actual, absolute, special delivery, which clearly would have ended the right of stoppage in transitu. This view of the case does not appear to have occurred to the court, nor was it suggested by the counsel, and is, therefore, not thought to interfere with the ' principles which we have deduced from the cases.
On principle, therefore, and authority, a majority of the court are of the opinion, that the transitus was at an end; or perhaps, more properly speaking, did not commence, upon the delivery of the goods to Captain King, who was the special and exclusive agent of the vendees.
Huston, J.
The plaintiffs were merchants at Malaga. One of the firm, Gatewood, was in this country. On the 15th of July, 1822, the following letter was addressed to them: “Your Mr. Gate-wood we have'had the pleasure to see, and received his assurance of your exertions to procure a freight for our brig, should she proceed to Malaga.
We should prefer a freight to any port in the United Stales-, not farther east than New York or south than Norfolk; but, if a good freight offers for New Orleans, we have no objections. If direct to Philadelphia, we have no objections, as we informed your partner, Mr. Gatewood, to receive on our account to the extent of about three thousand dollars in first quality dry Malaga wine, cask raisins and bloom raisins, an equal proportion of each, for which we will accept yohr draft in his favour, at four month’s tight.
(Signed) Sperry and Stansbury.”
On the 23d of September, 1822, the plaintiffs shipped the wine and raisins as per order; to be delivered at the port of Philadalphia, to Messrs. Sperry and Stansbury, or to their assigns, they paying freight for the said goods nothing, being the owners of the said vessel. The brig in which the goods were shipped belonged to Sperry and Stansbury, and was commanded by Charles Ki?ig, master, in their employment.
On the 31st of October, 1822, before the arrival of the vessel in the port of Philadelphia, and before any intelligence of the said shipment, Sperry and Stansbury became insolvent, and made a general assignment for the benefit of their creditors. On the 28th of November, the vessel arrived in the Delaware, and was detained at Newcastle by a replevin taken out by the plaintiffs (through their partner Gatewood,) and notice given to the master not to deliver the goods. The cargo was sold under an agreement of both parties, and the nett proceeds deposited in bank. This action, was instituted to decide the right to that money.
The right to stop goods bought on credit, while on their passage from the seller to the buyer, where.the latter becomes insolvent, has been long settled. I shall not go back to the origin of this doctrine-nor pretend to go through all the cases, nor decide whether [25]*25it rests on the principle, that a seller who gives goods on credit always does so under the impression that the buyer is not absolutely insolvent, or that when the buyer is totally insolvent, and cannot perform his part of the contract, it is equivalent to his saying ho will not perform it, and so the contract, like all others, in such circumstances, is rescinded; or on the plain and obvious injustice of taking one man’s goods to pay the debts of another; or whether all these, and other principles, entered into the view of the sages who settled the law. The principle is settled, but what cases come within it, has not at all times been agreed. After the goods are in the actual possession of the buyer, and mingled with his other pi’operty, the right is agreed to be gone; but when this possession, which puts an end to the right, exists, and when the transitus ends, is the question, and the decisions, certainly, are not all consistent. Lord Mansfield and Lord Kenyon each once said, the goods must come to the corporal touch of the buyer. Certainly this expression was not used literally, for- they may be brought to the warehouse of the buyer, unpacked and sold, and the buyer never have laid his hand on them. A distinction was' taken between actual and constructive possession, and this left the matter as uncertain as before; for what would be considered actual and what constructive possession, was by no means agreed on. At one time it was said, 3 Esp. N. P. Rep. 59, that if goods are put on board of a ship chartered by the buyer, they are in his actual possession, and cannot be stopped. The cause, however, went off on another point. In another cause on the same cargo, 1 East, 518, there are to be found dicta to the same effect; but here again the cause went off on another point. In 3 East, 381, another case on the same cargo, the very point arose, and all the cases, particularly Fowler v. Kymer, were reviewed, and it was expressly decided that the delivery to a ship expressly chartered for the purpose and sent to the seller, and in which they were loaded by him, did not divest his right of stoppage; and the judge who had decided Fowler and Kymer, concurred in the decision. It was next attempted to obtáin a decision, that if goods were delivered to a general agent, the right of stoppage was gone. I shall here notice the case in 4 Esp. N. P. Rep. 82, Wright v. Lawes. The marginal note is not warranted by the case, which is this: Shevill, by an agent, bought the wines of Bamford, Bruin and C.o. in London, and they were to be delivered at Yarmouth. Before their arrival at Yarmouth, Shevill sold them to Wright, and on their arrival they were put into a warehouse, until they could be forwarded in lighters to Wright at Norwich. Wright had paid part of the money, and it was proved his purchase was fair. Shevill and his agent, being swindlers, and unable to pay, Bamford,Bruin and Co. stopped the wines in the warehouse at Yarmouth, and Wright recovered them; but here the delivery at the place named by Shevill, to the seller was complete. Shevill had not only received the wine, but sold it. The passage to Norwich was a new one, in consequence of [26]*26the second sale of the wine. The case of Wright v. Leeds, 3 Bos. & Pull. 320, is cited to prove, that a delivery to a general agent puts an end, to the right of stopping. Moisseron was the general agent of Le Grand, and Co. of Paris, and in their name purchased goods of Leeds at Manchester, to be sent to the house of Wright, a packer in London. They arrived on the 2d of September, 1802. Moisseron came there, unpacked the goods, and took some of them away, and had the rest repacked. On the 7th of September, while the goods repacked were still at the packers, Le Grand and Co.. having failed, Leeds came and demanded the goods. Moisseron had authority to sell the goods in London, or send them to any part of Europe, and was not restricted to send them to Le Grand and Co. at Paris. ■. The seller was told the goods were to be sent to London, and sent them there; and the'right of stoppage was held to' be gone, because the goods had arrived at the place named by the buyer to the seller, and because it depended on Moisseron to decide whether he would sell them there or export them, and whether he would send them to Paris or some other place. The same principles governed the case in 5 East, 175.
These eases were reviewed in a late case, 6 Barnw. & Cresw. 422, Coates v. Railton, and sanctioned; but this distinction is taken, that where a factor or general agent buys goods to be sent to his principal at his residence abroad, the transitas is not at an end when' the goods come to the possession of the agent, but continues until they reach the principal; but if the agent buys the goods to be sent to a market or sold where he lives, and they mayas well be sent to one market as another, there the delivery at the warehouse of the agent, or named by the agent, puts an end to the right of stopping. But here Captain King had no power or authority except to carry the goods to Sperry and Stansbury. Two cases, one in 7 Mass. R. 453, Stubbs v. Lund, and another 9 Mass. li. 65, are to the point, and there the law is stated with a perspicuity and precision usual with Chief Justice Parsons.
On the fullest consideration it seems to me to be settled, that if the goods have arrived at the place named by the buyer to the seller as their destination, as between them, at a place where the buyer has full and absolute' power to sell them or send them wherever he pleases, and where they must stay till he directs their ■ destination, the transitas between the seller and buyer is at an end, and this whether the goods are in the warehouse of the buyer or of one employed by him for the purpose, whether at the house of a packer designated by him or in a ship. But if the goods are purchased for a particular person, whether by a special or general agent, to be sent to him at a particular place specified to the seller, they are in transitu, until they come ,to the possession of the buyer, at that place, and may be stopped if the purchaser becomes insolvent, whether in the hands of a general or special carrier, or in a warehouse or in a ship, and whether that ship was chartered by the buyer [27]*27for the voyage, or hired by the master, or owned by the buyer; for ‘the passage is not at an end; and how they are passing, whether by land or water, is not material; and I can find no principle which makes goods more in a man’s possession or more under his control in his own ship, navigated by his own master, than they are in a ship chartered on freight, for the express purpose of carrying them.
This principle it is, I presume, which has led to the decision, that if the insolvent buyer goes out to sea, and meets the ship, and goes on board and actually touches every parcel, yet the seller may stop the goods after the vessel arrives, and before they are unloaded, or in the warehouse.
A storekeeper in one of our towns comes and buys goods. He loads part in his own wagon and part in a wagon hired for the trip, or to carry at so much per hundred, and instantly goes and assigns all his property. I see no principle, and on a careful examination I can find no case, which forbids the merchant to follow and stop the goods in the one wagon as well as the other, if he can overtake them before they reach the storehouse of the buyer. In the one and the other, they are on their passage.
The wines and raisins here, were on their passage,- and I should suppose the plaintiffs’ right not gone.
J. Smith, concurred, with. Huston, J.
Judgment for the defendant.