Judge Stites
delivered the opinion of the Court—
In the fall of 1851, James Davis, of Maury county, Tennessee, went to Philadelphia, and, with the fraudulent design of not paying for the same, bought on a credit, of the appellants, an assorted stock of goods, suitable for the Tennessee market.
The goods were packed in boxes, marked with his name and address, as well as the names of the vendors, and forwarded by the usual conveyances to Jacob Forsythe, Jr., a commission merchant at Pitts-burg, on their way to their final destination in Tennessee.
At Pittsburg they were attached by a creditor of Davis for the satisfaction of a debt of about $1,000. Davis, who was there, induced the appellee, Yeatmari, to relieve the goods from this attachment, by accepting a draft at sixty days for the amount of the debt, which was cashed by Forsythe, and the attachment discharged. Yeatman, however, exacted as indemnity, that the goods should be delivered to the house of Forsythe & Co., and by them forwarded to him at Nashville, he being a commission merchant at that place, and refused to accept the draft unless this [278]*278was done. Davis having previously agreed to do this so soon as the goods were released, gave an order to Jacob Forsythe, Jr., his consignee, to deliver them to Forsythe & Co., to be shipped by them to Yeatman, at Nashville, as agreed on.
In obedience to this order, the goods were delivered, or, as the witness Forsythe says, “handed” over to Forsythe & Co., of which firm he was a member, to be shipped accordingly. The same witness proves that one box was shipped direct to Nashville to Yeatman, and that the other packages would have been thus shipped, but there was then no boat in port for Nashville, and in consequence thereof they were shipped to Given & Co., at Smithland, an intermediate port between Pittsburg and Nashville, where goods are usually re-shipped up the Cumberland to the latter place. All the goods, including the package shipped direct to Nashville, except one box, which was landed at Paducah, were delivered to Given & Co., at Smith-land, and were, in their hands, on the 21st October, 1851, attached by the appellee, upon sufficient allegations of fraud, &c., against Davis. On the 25th October, 1851, Wood & Oliver and others, the original vendors, attached, at Paducah, in McCracken county, the box of goods left there, and afterwards caused attachments to be levied on the goods at Smithland, which had already been seized by Yeatman. There being separate suits in Livingston and McCracken counties, both brought to subject the same property, they were taken, by change of venue, from McCracken to Livingston, and there consolidated. The creditors, who were the vendors, claimed, in virtue of their right of stoppage in transitu, a superior and paramount lien to Yeatman. He, on the contrary, insisted that his lien was prior in time, and that his debt should be first satisfied. All the parties having been brought before the court, and the goods having been sold, it was adjudged upon final hearing, that the vendors had not manifested a prior right, and that they should be postponed, and Yeatman’s debt [279]*279first satisfied, and the remainder distributed amongst them, pro rata.
ment at the suit itor|eneraieyfed while the goods are in transitu. @ Kent, 550; 4 Pana> 1:10 1“ its nature it is analogous to a f orfeite'd "by parting with the theSeSSg"ods.— ^“ss must be exerí™.«s¿Us;"when that terminates, the right of stoppage is lost. 1. The right of stoppage in transitu cannot be superseded hv n.rrv attach-
% in general gontinues^and the right of stopnntu*thJgcfods have reached the place of destination originally named by the vendee, and have come to his possession. But the vendee may intercept the goods in their transit when the delivery becomes complete, and the right of stoppage is at an end. (Secomb, Voorheis, Co. »s. Nutt, Sfc. 14 B. Monroe, 327; Mitts vs. Ball, 2 Bos. SfPul. 461; Gross on Lien, 380.)
[279]*279Of this judgment the vendors complain, and have brought the case up.
The grounds relied on for reversal are — 1. That the lien of the vendors should have been held superior, their right of stoppage in transitu being, as is insisted, at the date of the levy of their attachment complete; and 2. That as it was manifest that Davis had in the outset bought fraudulently, with the intention of never paying for the goods, their title to them had never been divested, and still remained good against him or Yeatman.
Inasmuch as Yeatman’s attachment was prior in time, it devolved on the appellants to show a superior equity before he could be postponed.
If, as is argued, their right of stoppage in transitu was operative and in effect, when Yeatman’s attachment was levied, there can be no doubt that he , , , , , . itj. i should have been treated as a general creditor, and as against them deferred until their demands were ° . satisfied. This right of stoppage in transitu has been held to be coeval with, and springing out of, the very contract by which the vendee claims the goods, and cannot be superseded by an attachment at the suit of a general creditor, levied while the goods are in transitu. (2 Kent's Com. 550; House & Son vs. Judson, 4 Dana, 11.) Though originally founded in equity, it has long been considered and acted upon as a legal , ° T . „ ,. .. „ remedy. In its foundation it is analgous to that of lien, but can only be exercised inrespect of the identical goods on which the claim is founded. Nor is it a mere lien forfeited by parting with the possession of the goods, but grows out of the original ownership and dominion. (Gross on Lien, 362.)
But the right must be exercised during the transitus, for when that terminates, the right of stoppage is gone, “In general the transitus continues until the goods have reached their place of destination originally named by the vendee, and have come to his posses[280]*280sion.” Formerly it was held that even an actual possession prematurely taken by the vendee, did not end the transitus; but as settled by this court in Secomb, Voorhies & Co. vs. Nutt, &c. 14 B. Monroe, 327, “the established doctrine is, that if the vendee intercepts the goods in their passage to him, and takes possession as owner, the delivery is complete, and the right of the vendor to stop at an end.”
3. Goods were purchased in Philad e 1 p h i a, ordered to the vendee at Maury county, Tennessee, attached at Pittsburg by a creditor, relieved from the attachment by the vendee, and delivered to a third person, and their destination changed. Held — that the right of vendor to stop in transitu was gone; that the possession of vendee was complete.
So in the case of Mills vs. Ball, 2 Bos. & Pul. 461, it was held by Lord Alvanley, “that if in the course of the conveyance of the goods from the vendor to the vendee, the latter meets them on the road and takes them into his own possession, the goods will have arrived at their journey’s end with reference to the right of stoppage.” (Gross on Lien, 380.)
When the foregoing principles are applied to the case now under consideration, we think it clear that the right of the appellants to stoppage in transitu
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Judge Stites
delivered the opinion of the Court—
In the fall of 1851, James Davis, of Maury county, Tennessee, went to Philadelphia, and, with the fraudulent design of not paying for the same, bought on a credit, of the appellants, an assorted stock of goods, suitable for the Tennessee market.
The goods were packed in boxes, marked with his name and address, as well as the names of the vendors, and forwarded by the usual conveyances to Jacob Forsythe, Jr., a commission merchant at Pitts-burg, on their way to their final destination in Tennessee.
At Pittsburg they were attached by a creditor of Davis for the satisfaction of a debt of about $1,000. Davis, who was there, induced the appellee, Yeatmari, to relieve the goods from this attachment, by accepting a draft at sixty days for the amount of the debt, which was cashed by Forsythe, and the attachment discharged. Yeatman, however, exacted as indemnity, that the goods should be delivered to the house of Forsythe & Co., and by them forwarded to him at Nashville, he being a commission merchant at that place, and refused to accept the draft unless this [278]*278was done. Davis having previously agreed to do this so soon as the goods were released, gave an order to Jacob Forsythe, Jr., his consignee, to deliver them to Forsythe & Co., to be shipped by them to Yeatman, at Nashville, as agreed on.
In obedience to this order, the goods were delivered, or, as the witness Forsythe says, “handed” over to Forsythe & Co., of which firm he was a member, to be shipped accordingly. The same witness proves that one box was shipped direct to Nashville to Yeatman, and that the other packages would have been thus shipped, but there was then no boat in port for Nashville, and in consequence thereof they were shipped to Given & Co., at Smithland, an intermediate port between Pittsburg and Nashville, where goods are usually re-shipped up the Cumberland to the latter place. All the goods, including the package shipped direct to Nashville, except one box, which was landed at Paducah, were delivered to Given & Co., at Smith-land, and were, in their hands, on the 21st October, 1851, attached by the appellee, upon sufficient allegations of fraud, &c., against Davis. On the 25th October, 1851, Wood & Oliver and others, the original vendors, attached, at Paducah, in McCracken county, the box of goods left there, and afterwards caused attachments to be levied on the goods at Smithland, which had already been seized by Yeatman. There being separate suits in Livingston and McCracken counties, both brought to subject the same property, they were taken, by change of venue, from McCracken to Livingston, and there consolidated. The creditors, who were the vendors, claimed, in virtue of their right of stoppage in transitu, a superior and paramount lien to Yeatman. He, on the contrary, insisted that his lien was prior in time, and that his debt should be first satisfied. All the parties having been brought before the court, and the goods having been sold, it was adjudged upon final hearing, that the vendors had not manifested a prior right, and that they should be postponed, and Yeatman’s debt [279]*279first satisfied, and the remainder distributed amongst them, pro rata.
ment at the suit itor|eneraieyfed while the goods are in transitu. @ Kent, 550; 4 Pana> 1:10 1“ its nature it is analogous to a f orfeite'd "by parting with the theSeSSg"ods.— ^“ss must be exerí™.«s¿Us;"when that terminates, the right of stoppage is lost. 1. The right of stoppage in transitu cannot be superseded hv n.rrv attach-
% in general gontinues^and the right of stopnntu*thJgcfods have reached the place of destination originally named by the vendee, and have come to his possession. But the vendee may intercept the goods in their transit when the delivery becomes complete, and the right of stoppage is at an end. (Secomb, Voorheis, Co. »s. Nutt, Sfc. 14 B. Monroe, 327; Mitts vs. Ball, 2 Bos. SfPul. 461; Gross on Lien, 380.)
[279]*279Of this judgment the vendors complain, and have brought the case up.
The grounds relied on for reversal are — 1. That the lien of the vendors should have been held superior, their right of stoppage in transitu being, as is insisted, at the date of the levy of their attachment complete; and 2. That as it was manifest that Davis had in the outset bought fraudulently, with the intention of never paying for the goods, their title to them had never been divested, and still remained good against him or Yeatman.
Inasmuch as Yeatman’s attachment was prior in time, it devolved on the appellants to show a superior equity before he could be postponed.
If, as is argued, their right of stoppage in transitu was operative and in effect, when Yeatman’s attachment was levied, there can be no doubt that he , , , , , . itj. i should have been treated as a general creditor, and as against them deferred until their demands were ° . satisfied. This right of stoppage in transitu has been held to be coeval with, and springing out of, the very contract by which the vendee claims the goods, and cannot be superseded by an attachment at the suit of a general creditor, levied while the goods are in transitu. (2 Kent's Com. 550; House & Son vs. Judson, 4 Dana, 11.) Though originally founded in equity, it has long been considered and acted upon as a legal , ° T . „ ,. .. „ remedy. In its foundation it is analgous to that of lien, but can only be exercised inrespect of the identical goods on which the claim is founded. Nor is it a mere lien forfeited by parting with the possession of the goods, but grows out of the original ownership and dominion. (Gross on Lien, 362.)
But the right must be exercised during the transitus, for when that terminates, the right of stoppage is gone, “In general the transitus continues until the goods have reached their place of destination originally named by the vendee, and have come to his posses[280]*280sion.” Formerly it was held that even an actual possession prematurely taken by the vendee, did not end the transitus; but as settled by this court in Secomb, Voorhies & Co. vs. Nutt, &c. 14 B. Monroe, 327, “the established doctrine is, that if the vendee intercepts the goods in their passage to him, and takes possession as owner, the delivery is complete, and the right of the vendor to stop at an end.”
3. Goods were purchased in Philad e 1 p h i a, ordered to the vendee at Maury county, Tennessee, attached at Pittsburg by a creditor, relieved from the attachment by the vendee, and delivered to a third person, and their destination changed. Held — that the right of vendor to stop in transitu was gone; that the possession of vendee was complete.
So in the case of Mills vs. Ball, 2 Bos. & Pul. 461, it was held by Lord Alvanley, “that if in the course of the conveyance of the goods from the vendor to the vendee, the latter meets them on the road and takes them into his own possession, the goods will have arrived at their journey’s end with reference to the right of stoppage.” (Gross on Lien, 380.)
When the foregoing principles are applied to the case now under consideration, we think it clear that the right of the appellants to stoppage in transitu was terminated at Pittsburg, and that they did not occupy the attitude of privileged creditors over the appellee, whose attachment was prior in date, and first levied.
The goods were seized in Pittsburg; Davis was present; Yeatman came to his relief, and when, by his assistance, the goods were released, Davis, as he had previously agreed to do, for Yeatman’s indemnity, took possession of the goods by ordering the original consignee to deliver them to Forsythe & Co., with directions to ship them to Nashville. The order to Jacob Forsythe was not conditional, as was the order to Marsh and Rowlett, in the case of Secomb, &c. vs. Nutt, (supra,) but was express, and, as the witness testifies, was obeyed. The goods were delivered to Forsythe & Co., and by them shipped to Given & Co., at Smithland, an appropriate intermediate port for re-shipment to Nashville.
The acts of Davis at Pittsburg were, in our opinion, tantamount to an actual assumption of possession and delivery to Yeatman. The goods no longer proceeded under “the original impulse” given to them at Philadelphia, but under the orders of Davis, the [281]*281vendee, given in person at Pittsburg, when and where the transitus, in reference to the right of stoppage in the appellants, ended.
4. Though the conduct of a purchaser of goods may be fraudulent, yet the right of a purchaser ignorant of that fraud will not be affected thereby. (Arnett vs. Cloudas, 4 Dana, 300; Parker vs. Patrick, 5 T. R. 175.)
5. The act of 1838, (3 Statute Law, 116,) conferred no additional right to a vendor against a fraudulent vendee. It merely gave a more summary remedy. (Bohannon, $c. vs. Kerr, S¡c. 1 B. Monroe, 87.)
With regard to the second objection taken to the judgment below, we are of opinion that it is not tenable.
It is manifest that Davis was guilty of a gross fraud upon the appellants, but the consequences of his conduct should not be visited upon the appellee, who, so far as this record shows, was altogether ignorant of Davis’ motive or design in making the purchase of goods. To the extent of the amount paid by him for the release of the goods, and the lien asserted therefor, he acquired an equity which ought not to be impaired by the fraud of Davis, of which he had no notice.
idle goods had been bought by Davis, marked in his name, thus shipped to Pittsburg, and subject to his order. Surely Yeatman had the right to suppose they belonged to him, and upon the faith of a virtual pledge which was made of the goods, to advance money or become liable therefor in order to release them from attachment.
The 1st section of the act of 1838, 3 vol. Statute Law, 116, conferred no additional right on a vendor against a fraudulent vendee. The act merely gave him a more summary remedy, as was intimated in Bohannon, &c. vs. Kerr, &c., 1 B. Monroe, 87.
In Arnett vs. Cloudas, 4 Dana, 300, a more flagrant fraud, if possible, was perpetrated on the vendor than in the present case, and for which the perpetrator was sent to the penitentiary ; yet, it was held that the vendor, though paid nothing for his slave but counterfeit bank notes, could not, as against an innocent purchaser, without notice and for value, maintain an action to recover the slave; and in that case, reference was made to Parker vs. Patrick, 5 T. R. 175, in which it was said, “that when goods obtained from A by false pretences, had been pawned to B for a valuable consideration, and A obtained posses[282]*282sion of the goods, it was held that B might maintain trover for them." A state of fact almost precisely analagous to the present.
We perceive no error in the judgment of the Circuit Court prejudicial to appellants, and it must therefore be affirmed.