It has been much disputed whether this is a right to rescind the sale, (k) or only an extension of the common-law Lien of the seller. (/) The difference is important. If stoppage in transitu rescinds the sale, the vendor thereby takes possession of the goods as his own, and the debt is at an end, and the seller has no claim on the purchaser for the price. But if it be only the exercise of a right of lien, then the property in the goods remains in the purchaser, or those who represent him, and the right to the price of the goods remains with the vendor.(m) Therefore, if the vendor now sells them, it must be as any one may sell goods on which he has a lien to secure an unpaid debt; if they bring more than the debt * he must account for the surplus; if they bring less he may demand the balance from the purchaser. (n) If he sells them only to enforce his lien, and they bring more than the price, he must return the balance to the original buyer.

This question has been much agitated; but we think the strongly prevailing authority and reason are in favor of its being an exercise of a lien by the seller, and not a rescission of the sale. Doubtless there are difficulties attendant upon either view of this question. Thus, it may be said that a seller cannot retain a lien v. Mitchell, 38 Mich. 390; Kingman v. Denison, 84 Mich. 608; More v. Lott, 13 Nev. 376, 380; Reynolds v. Boston, etc. R.R.,43 N. H. 580; Benedict v. Schaettle, 12 Ohio St. 515.

(k) This question was much discussed in Clay v. Harrison, 10 B. & C. 99; but, according to a dictum of Parke, J., in Stephens v. Wilkinson, 2 B. & Ad. 323, not decided. See Litt v. Cowley, 7 Taunt. 169; Wilmhurst v. Bowker, 5 Bing. N. C. 547; s. c. 7 M. & G. 882; Edwards v. Brewer, 2 M. & W. 375; Key v. Cotes-worth, 14 E. L. & E. 435; s. c. 7 Exch. 595. The old case of Langfort v. Tiler, 1 Salk. 113, permitting the vendor to resell the goods, seems to proceed upon the ground of a rescission of the contract. The history and character of this right were much discussed in Lord Abinger's judgment in Gibson v. Carruthers, 8 M. & W. 336. And see Wentworth v. Outh-waite, 10 M. & W. 451.

(/) The weight of authority, as well as the reason of the thing, is decidedly in favor of considering the right as an extension of the common-law lien for the price, or, as Lord Kenyon observed in Hodgson v. Loy, 7 T. R. 445, " an equitable lien adopted by the law for the par-pose of substantial justice." And it seems that the right was first introduced into equity before it was applied by the common-law courts. See Wiseman v. Vandeput, 2 Vera. 203; Snee v. Prescot, 1 Atk. 246; D'Aquila v. Lambert, 2 Eden, 75; s. c. Ambl. 399. In the following cases this right has been considered not a rescission of the sale, bat merely an ex-tension of the lien. Wentworth v. Oath-waite, 10 M. & W. 436; Bloxam v. Sanders, 4 B. & C. 941; Jordan v. James, 5 Hamm. 88; Cross v. O'Donnell, 44 N. Y. 661; Babcock v. Bonnell, 80 N. Y. 244; Racket v. Donovan, 13 Kan. 251; Rowley v. Bige-low, 12 Pick. 307; Newhall v. Vargas, 13 Me. 93; s. c. 15 Me, 315: Rogers Thomas, 20 Conn. 53: Gwynne, Ex parte, 12 Ves. 379; Martindale v. Smith, 1 Q. B. 389; Chandler v. Fulton, 1" Tex. 2.

(m) There would seem to be no doubt that the vendor may sue for the price of the goods, notwithstanding he has stopped them in transitu, provided be is ready to deliver them on demand and payment. Kymer v. Suwercropp, l Camp. 109.

(n) This was distinctly adjudged in Newhall v. Vargas, 15 Me. 314, a very able case on this subject.

In some respects it is treated as an absolute lien, and on this ground denied to exist at all, where it cannot exist as a lien. Thus it is said that this right belongs only to one who sold the goods, or had distinctly the property in them; and' not to one who has himself only a lien on them, as a bailee who has a lien for work done, or the like; for when such a party sends the goods away from him, he parts with the possession, and his own lien ceases. (p)

It is indeed quite well settled that the right of stoppage in transitu exists only between vendor and vendee, or between persons standing substantially in that relation. 1 A mere surety for

(o) See Clay v. Harrison, 10 B. &. C. 99, n.; James v Griffin, 2 M. & W. 623, 632, Parke, B.

(p) Sweet v. Pym, 1 East, 4

1 It was held in Memphis, etc. R. R. Co. v. Freed, 38 Ark. 614, that where a buyer ordered goods from A, who requested B to furnish and forward the goods to the the price, upon whom there is no primary liability to pay for the goods, cannot stop them upon the insolvency of the vendee merely to secure himself from loss.(q) But if the consignor is virtually the vendor, he may exercise the right. Thus, if a person in this country should send an order to his correspondent in Paris to procure and ship to him certain goods, which the latter should procure on his own credit, without naming the principal, and ship to him at the original price, adding only his commission, he would be considered as an original vendor, so Ear at least as to give him the right of stoppage in transitu, (r) if not for all purposes. So a principal, who consigns goods to his factor upon credit, may stop them on the factor's insolvency. (s)

The right of stoppage in transitu is not confined to a sale of goods. A person remitting money on a particular account, or for a particular purpose, may stop the same on hearing of the insolvency of the consignee. (t)1 The fact that the accounts between the consignor and consignee are unadjusted, rendering it uncertain whether there is, or will be, a balance due the consignor, will not prevent the consignor from exercising this right. (u) But goods shipped to pay a precedent and existing * debt, cannot be stopped on the insolvency of the consignee. (v)

A consignor may exercise this right, although he has received a bill of exchange for the goods, and indorsed it over; (w) or even if he has received actual payment for a part of the goods. (x)

(q) Siffkin v. Wray, 6 East, 371.

(r) Feise v. Wray, 3 East, 93; New-hall v. Vargas, 13 Me. 93; Seymour v. Newton, 105 Mass. 275. See also Ex parte Miles, 15 Q. B. D. 39.

(s) Kinlock v. Craig, 3 T. R. 119.

(0 Smith v. Bowles, 2 Esp. 578. Aliter upon a general remittance from a debtor to his creditor on account of his debt.

(u) Wood v. Jones, 7 Dow. & R. 126; Vertue v. Jewell, 4 Camp. 31.

(v) Wood v. Roach, 1 Yeates, 177; 8. c. 2 Dallas, 180; Summeril v. Elder, 1 Binn. 106; Clark v Mauran, 3 Paige, 373.

(to) And this is true although the bills are not vet mature. Newhall v. Vargas, 13 Me. 93; Bell v. Moss, 5 Whart. 189;

Feise v. Wray, 3 East, 93; Jenkyns v. Usborne, 7 Man. & G. 678, 698; Donath v. Broomhead, 7 Penn. St. 801. And it is said that the consignor need not tender back the bill. Edwards v, Brewer, 2 M & W. 375; Hays v. Mouille, 14 Penn. St. 48. But of this we should have some doubts.

(x) Hodgson v. Loy, 7 T. R. 440; Newhall v. Vargas, 13 Me. 93 - Quare, whether in those States where a negotiable bill or note is considered prima facie as payment, such a bill or note, given for the whole price, would defeat the right of stoppage 1 See Chapman v. Searle, 9 Pick. 38; Hatching v. Olcutt, 4 Vt. 549; White v. Dougherty, Mart. &. Y. 309. See Horncastle v. Farran, 3 B. ft Ald. 497; Bunney v. Poyntz, 4 B. & Ad. 568.

buyer, and B shipped the goods to the buyer and sent the bill and bill of lading to A, that B had no right to stop the goods' on account of A's insolvency. Ex parte Golding, 13 Ch. D. 628, however, seems contra. See also Gwyn v. Richmond, 4c R. R., 85 N. C. 429.

1 Thus the right of stoppage in transitu is applicable to bills of exchange. Muller v. Pondir, 55 N. Y. 325. - K.