The opinion of the court was delivered by
Hall, J.
By the common law, as it is now understood in England and in the several states, the unpaid vendor of goods, in case of the insolvency of the vendee, may reclaim them, while on their passage to the vendee, not only against the vendee himself, but also against his creditors, by stopping them while in their transit. For, although the goods, by being dispatched to the vendee by the usual modes of conveyance, become, for other purposes, the property of the vendee, are considered in his constructive possession and at his risk, so that he and not the vendor must bring an action for their loss, or for any injury to them, yet the vendor is held to have such an equitable lien on them, though out of his possession, that, on learning the insolvency of the vendee, he may reclaim them, while in their transit to him, as security for the price for which they had been sold. This right of stoppage in transitu is held not to be defeated by an attachment of or levy upon the goods, as the property of the vendee, while in their transit; and a demand of the goods by the vendor, while in the hands of a levying or attaching officer, is held a sufficient claim of them; and this without reference to the question, whether the goods, but for the levy, or attachment, would probably have reached the vendee, and thus have destroyed the vendor’s right. The levy being made while the goods are subject to the lien of the vendor, it is held inoperative as against him, provided his right be made known and insisted oh before an actual sale by the officer.
Although the general doctrine of the right of the consignor of goods, sold on credit, to stop them while in their transitus to an insolvent consignee, is well established, yet difficulties often arise in particular cases, in determining whether the goods, at the time of the attempted exercise of the right of the consignor, are- in their transit, or are to be treated as having arrived at their place of destination. No two cases are alike in all their circumstances; and it has been found [179]*179difficult to lay down any specific rule, by which the determination of the transit is to be ascertained. Eminent judges, in some of the early cases on this subject, are reported to have said, that, in order to divest this right of the consignor, the goods must have come to the “corporal touch” of the consignee. But in Wright v. Lawes, 4 Esp. R. 85, Lord Kenyon remarked, “ I once said, that, to confer a property on the consignee, a corporal touch was necessary. I wish the expression had never been made, as it says too much.” Subsequent judges, considering this expression as figurative, have sought to modify it, by saying, that the actual possession of the consignee was intended; while in all or most of the modern cases, as well as by the elementary writers, it seems to be conceded, that the transitas is at an end, whenever the goods, in pursuance of the original destination given them by the consignor, have come into either the actual or constructive possession of the consignee. What, however, is to be understood as constituting such an actual or constructive possession of the vendee, as to defeat the right of the vendor, is to be gathered rather from an examination of the particular cases, than from any precise definition, which has been given of the terms themselves. Chancellor Kent says, (2 Kent 545,) “ In many of the cases, where the vendor’s right of stopping in transitu has been defeated, the delivery was constructive only; and there has been much subtlety and refinement on the question, as to the facts and circumstances which would amount to a delivery, sufficient to take away the right. The point for inquiry is, whether the property is to be considered as still in its transit; for if it has once fairly arrived at its destination, so as to give the vendee the actual exercise of dominion and ownership over it, the right is gone.”
The question in this case is, whether the landing of the goods upon the wharf is to be considered as an actual or constructive delivery of them to Preston, within the doctrine of the adjudged cases on this subject. I am unable to come to any other conclusion, than that it was such a delivery. Under the charge of the court the jury must have found, that all the duties and responsibilities of the transportation line, in regard to the goods, had ceased, that no duty or responsibility was cast upon Chapman, the wharfinger, by the landing of the goods on his wharf, that the goods lay on the wharf, subject to the control and direction of no other person than Preston., [180]*180and that they would remain there in that precise position, until Preston saw fit to remove them. It is difficult to conceive of a more effectual delivery of goods than this, short of their coming to the corporal touch of the vendee. The special property of the carriers had ceased; the wharfinger had nothing to do with the goods, and unless they are to be considered as having been in the possession of the vendee, no person whatever had any possession of them, — they were absolutely abandoned by all persons. It will not be pretended they had assumed the character of lost goods. They must therefore have come to the possession of Preston. It being the custom for Preston to receive goods, thus consigned him, on the wharf of Chapman, that must be considered as the place to which they were directed by the vendor.
When the goods were landed on the wharf, the result of the original impulse, impressed upon them by the vendor in transmitting them to the vendee, was accomplished. They would go no farther under that impulse. They were not in the hands of a middle man, to be forwarded by other carriers. Chapman had no charge of them, and could not therefore be a middle man; and there was no other person, standing in that character. The wharf of Chapman, in the language of the books, became the warehouse of Preston for the reception of the goods, and must consequently be considered the place contemplated by the consignor, as that of their ultimate destination. Preston could not have remained in his store, with his arms folded, expecting the goods to be driven up to his door. . He must have looked for them at the wharf of Chapman, which, for the purposes of their reception, he had made his own; and when they arrived there, their transitas, so far as regarded the right of the vendor to stop them, must, I think, be considered as ended. Richardson v. Goss, 3 B. & P. 119. Scott v. Pettit, Ib. 469. Leeds v. Wright, Ib. 320. Dixon v. Baldwin, 5 East 175. Foster v. Frampton, 6 B. & C. 107, [13 E. C. L. 111.] Rowe v. Pickford, 8 Taunt. 83. James v. Griffin, 2 Mees. & Welsh. 623. Wentworth v. Outhwaite, 10 Mees. & Welsb. 435. Dodson v. Wentworth, 4 Man. & Gr. 1080, [43 E. C. L. 555.]
No case is found in the books precisely like the present, in its prominent circumstances; though the cases are numerous, in which the transit of the goods has been held to be terminated by their [181]*181coming within the control of the consignee, before they had reached his actual place of business, and even when they had not arrived at the port, or town, to which they had been directed by the consignor. Such are most of the cases before cited. The case of Covell v. Hitchcock, 23 Wend.
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The opinion of the court was delivered by
Hall, J.
By the common law, as it is now understood in England and in the several states, the unpaid vendor of goods, in case of the insolvency of the vendee, may reclaim them, while on their passage to the vendee, not only against the vendee himself, but also against his creditors, by stopping them while in their transit. For, although the goods, by being dispatched to the vendee by the usual modes of conveyance, become, for other purposes, the property of the vendee, are considered in his constructive possession and at his risk, so that he and not the vendor must bring an action for their loss, or for any injury to them, yet the vendor is held to have such an equitable lien on them, though out of his possession, that, on learning the insolvency of the vendee, he may reclaim them, while in their transit to him, as security for the price for which they had been sold. This right of stoppage in transitu is held not to be defeated by an attachment of or levy upon the goods, as the property of the vendee, while in their transit; and a demand of the goods by the vendor, while in the hands of a levying or attaching officer, is held a sufficient claim of them; and this without reference to the question, whether the goods, but for the levy, or attachment, would probably have reached the vendee, and thus have destroyed the vendor’s right. The levy being made while the goods are subject to the lien of the vendor, it is held inoperative as against him, provided his right be made known and insisted oh before an actual sale by the officer.
Although the general doctrine of the right of the consignor of goods, sold on credit, to stop them while in their transitus to an insolvent consignee, is well established, yet difficulties often arise in particular cases, in determining whether the goods, at the time of the attempted exercise of the right of the consignor, are- in their transit, or are to be treated as having arrived at their place of destination. No two cases are alike in all their circumstances; and it has been found [179]*179difficult to lay down any specific rule, by which the determination of the transit is to be ascertained. Eminent judges, in some of the early cases on this subject, are reported to have said, that, in order to divest this right of the consignor, the goods must have come to the “corporal touch” of the consignee. But in Wright v. Lawes, 4 Esp. R. 85, Lord Kenyon remarked, “ I once said, that, to confer a property on the consignee, a corporal touch was necessary. I wish the expression had never been made, as it says too much.” Subsequent judges, considering this expression as figurative, have sought to modify it, by saying, that the actual possession of the consignee was intended; while in all or most of the modern cases, as well as by the elementary writers, it seems to be conceded, that the transitas is at an end, whenever the goods, in pursuance of the original destination given them by the consignor, have come into either the actual or constructive possession of the consignee. What, however, is to be understood as constituting such an actual or constructive possession of the vendee, as to defeat the right of the vendor, is to be gathered rather from an examination of the particular cases, than from any precise definition, which has been given of the terms themselves. Chancellor Kent says, (2 Kent 545,) “ In many of the cases, where the vendor’s right of stopping in transitu has been defeated, the delivery was constructive only; and there has been much subtlety and refinement on the question, as to the facts and circumstances which would amount to a delivery, sufficient to take away the right. The point for inquiry is, whether the property is to be considered as still in its transit; for if it has once fairly arrived at its destination, so as to give the vendee the actual exercise of dominion and ownership over it, the right is gone.”
The question in this case is, whether the landing of the goods upon the wharf is to be considered as an actual or constructive delivery of them to Preston, within the doctrine of the adjudged cases on this subject. I am unable to come to any other conclusion, than that it was such a delivery. Under the charge of the court the jury must have found, that all the duties and responsibilities of the transportation line, in regard to the goods, had ceased, that no duty or responsibility was cast upon Chapman, the wharfinger, by the landing of the goods on his wharf, that the goods lay on the wharf, subject to the control and direction of no other person than Preston., [180]*180and that they would remain there in that precise position, until Preston saw fit to remove them. It is difficult to conceive of a more effectual delivery of goods than this, short of their coming to the corporal touch of the vendee. The special property of the carriers had ceased; the wharfinger had nothing to do with the goods, and unless they are to be considered as having been in the possession of the vendee, no person whatever had any possession of them, — they were absolutely abandoned by all persons. It will not be pretended they had assumed the character of lost goods. They must therefore have come to the possession of Preston. It being the custom for Preston to receive goods, thus consigned him, on the wharf of Chapman, that must be considered as the place to which they were directed by the vendor.
When the goods were landed on the wharf, the result of the original impulse, impressed upon them by the vendor in transmitting them to the vendee, was accomplished. They would go no farther under that impulse. They were not in the hands of a middle man, to be forwarded by other carriers. Chapman had no charge of them, and could not therefore be a middle man; and there was no other person, standing in that character. The wharf of Chapman, in the language of the books, became the warehouse of Preston for the reception of the goods, and must consequently be considered the place contemplated by the consignor, as that of their ultimate destination. Preston could not have remained in his store, with his arms folded, expecting the goods to be driven up to his door. . He must have looked for them at the wharf of Chapman, which, for the purposes of their reception, he had made his own; and when they arrived there, their transitas, so far as regarded the right of the vendor to stop them, must, I think, be considered as ended. Richardson v. Goss, 3 B. & P. 119. Scott v. Pettit, Ib. 469. Leeds v. Wright, Ib. 320. Dixon v. Baldwin, 5 East 175. Foster v. Frampton, 6 B. & C. 107, [13 E. C. L. 111.] Rowe v. Pickford, 8 Taunt. 83. James v. Griffin, 2 Mees. & Welsh. 623. Wentworth v. Outhwaite, 10 Mees. & Welsb. 435. Dodson v. Wentworth, 4 Man. & Gr. 1080, [43 E. C. L. 555.]
No case is found in the books precisely like the present, in its prominent circumstances; though the cases are numerous, in which the transit of the goods has been held to be terminated by their [181]*181coming within the control of the consignee, before they had reached his actual place of business, and even when they had not arrived at the port, or town, to which they had been directed by the consignor. Such are most of the cases before cited. The case of Covell v. Hitchcock, 23 Wend. 611, was much relied upon by the plaintiff’s counsel in the argument; and it does indeed carry the right of stoppage to a great length. But thgt case is distinguishable from the present in two particulars. In that case the goods were directed to the vendor, at Willardsburgh, a place thirty miles beyond Havana, the place where they were stopped by the consignor. It was not, therefore, in accordance with their original direction, that their transit should be ended at Havana. In the case at bar the goods had arrived at the port or place of their original direction. It was just as consistent with that direction, that they should be delivéred on the wharf at Vergennes, as at any other place in that town. And secondly, the goods in Covell v. Hitchcock were in the custody of a warehouse man, when they were stopped, who was holding them for the consignee; whereas in this case the goods were in the custody of no one, unless they were in that of the consignee. It may also be remarked, that the decision relied upon for the plaintiff in Covell v. Hitchcock was that of the court of errors of New York, reversing a contrary decision of the supreme court of that state in the same case, (20 Wend. 170); and that the law of the supreme court in that case seems well sustained by the two recent cases of Wentworth v. Outhwaite and Dodson v. Wentworth, before cited, the one in the court of Exchequer and the other in the Common Pleas, in England.
Numerous other cases were either read or referred to in the argument for the plaintiff; but none of them appear to me to reach the question in this case. In some of them are found very strong expressions of judges in favor of an extended right of the consignor to stop the goods on their way to the consignee. But the language of courts must be read with reference to questions in the cases before them, and cannot, with any propriety, be extended to apply to other facts and circumstances, not in the mind of the judge, when the language is used. Many of the expressions of Ld. Mansfield and Ld. Kenyon in the early cases on this subject, — as that the goods must come to the' corporal touch, or to the actual possession, of the vendee, in [182]*182the confined sense of that term, have been found inapplicable to the facts jof other cases, which have since occurred, and have, in consequence, been disregarded. And the general dicta of other subsequent judges have' been and must be measured and treated in like manner.
The cases cited and relied upon by the plaintiff’s counsel, where the transit was held not to have germinated, will, I think, all be found to fall within one or the other of the following classes; — 1. Cases in which it has been held, that the right of stoppage existed, where the goods were originally forwarded on board of a ship chartered by the vendee; Bohtlingk v. Inglis, 3 East 381, and Stubbs v. Lynde, 7 Mass. 453;-2. Where the delivery of the goods to the vendee has been deemed incomplete by reason of his refusal to accept them; Bartram v. Farebrother, 15 E. C. L. 79; James v. Griffin, 2 Mees. & Welsb. 623;-3. Where goods remained in the custom house, subject to a government bill for duties; Northey v. Field, 2 Esp. It. 613;-4. Where they were still in the hands of the carrier, or wharfinger, as his agent, subject to the carrier’s lien for freights; Crawshay v. Eades, 8 E. C. L. 53; Edwards v. Brewer, 2 M. & W. 375;-5. Where the goods, though arrived at their port of delivery, were still on ship board, or in the hands of the ship’s lighterman, to be conveyed to the wharf; Naylor v. Dennie, 8 Pick. 198; Jackson v. Nicholl, 35 E. C. L. 202; Whitehead v. Anderson, 9, Mees. & Welsb. 518; Tucker v. Humphrey, 15 E. C. L. 63;-6. Where the goods had performed part of their transit, but were in the hands of a middle man, to be forwarded on by other .carriers; Mills v. Ball, 2 B. & P. 457; Smith v. Goss, 2 Camp. 282; Ellis v. Hunt, 3 T. R. 467; Hodgson v. Loy, 7 T. R. 436; Coates v. Railston, 13 E. C. L. 223; Buckly v. Furness, 15 Wend. 137.
If, in the present case, the goods, when landed on the wharf, had been in the custody of the wharfinger, the question would have •arisen, whether he held them for the carriers, as a middle man, or as the agent of the consignee; and the right of the consignor to jstop them would probably have depended upon the character, in which the wharfinger was found to act. But the jury, under the charge of the court, have excluded that question from our consideration, by finding that the wharfinger had no charge of the goods whatever. [183]*183If the goods had been consigned to a place in the interior, beyond Vergennes, and had remained in the hands of the wharfinger at the latter place, possibly the case might be still more variant from the present. Upon any such altered state of facts no opinion is intended to be expressed. In the case at bar the ultimate place of destination of the goods, under the direction and impulse given them by the consignor, was Yergennes. Our decision merely declares, that the usual place of the consignee’s receiving goods in that town, and where they were in point of fact placed for him by the carriers, was the place of their ultimate destination, named by the consignor, and that, there being no middle man in the case, the goods, when they passed from the hands of the carriers, came into the constructive possession of. the vendee, and were beyond the bounds of the vendor’s right to enforce his original lien upon them.
The judgment of the county court is affirmed.