* possession, is in no better position than the first vendee, under whom he claims; and the goods may be taken from him by the first vendor, on the insolvency of the first vendee And if the bill of lading be so transferred and indorsed by way of pledge to secure the consignee's debt, the consignor does not lose entirely his right to stop the goods in transitu, but holds it subject to the rights of the pledgee. That is, he may enforce his claim to hold the surplus of the value of the goods, after the pledgee's claim is satisfied; and he holds this surplus to secure the debt of the consignee to him.(r) lint the pledgee's claim, which the consignor is thus bound to recognize, would not be for a general balance of account, but only for the specific advances made upon the security of that particular bill of lading. And therefore, by paying or tendering that amount, the consignor acquires the right of retaking all the goods.(s) And if' the pledgor had pledged some of his own goods, together with those of the consignor, the latter would have a right to insist upon the appropriation of all the pledgor's own goods towards the claim of the pledgee, before any of the goods contained in the bill of lading. (t)1

It is said that the exercise of this right is an act so far adverse to the vendee, that if the goods be stopped by virtue of an agreement between the buyer and seller, it is no longer a stoppage in transitu, but either a cancelling of the sale by mutual consent, or a reconveyance by the buyer. (u) And it * then be- * 609

(r) In re. Westzinthus, 5 B. & Ad. 817; Kemp v. Falk, 7 App. Cas. 573; Chandler v. Fulton, 10 Tex. 2.

(s) Spalding v. Ruding, 6 Beav. 376.

(t) In re Westzinthus, 5 R. & Ad. 817.

(u) This question was raised in Ash v. Putnam, 1 Hill (N. Y.), 302. So in Nay lor v. Dennie, 8 Pick. 198, the same question was examined. It was there said, that although the right of stoppage in transitu is adverse to the consignee, that means only that it cannot be exercised under a title derived from the consignee; not that it must he exercised in hostility to him And this right of stoppage is not defeated, merely because the consignee gives the consignor a writing declaring that he revokes the order for the goods, and will not receive them, and requests the carrier to deliver them to the con-signor. If the consignor, therefore, with-out regard to an\ such rescission of the sale by the consignee, duly exercise his right, do previous attachment by the creditors of the consignee, made daring their transit, can be Bet Dp to defeat it. The consignor may rely upon his original property in the goods, and not upon any transfer or reconveyance by the vendee. -It is perfectly well settled that the mere sale of the goods by the vendee during their transit, unaccompanied with any indorsement or delivery of a bill of lading etc.. will not defeat the consignor's right of stoppage, Craven v. Ryder, 6 Taunt. 433; whitehouse v. Frost, 12 East, 614; Stoveld v. Hughes, 14 East, 308 . Miles v. Gorton, 2 Cr. & M. 504; Dixon v. Yates, comes in some cases a question of considerable difficulty whether the buyer can dispossess himself of the goods, or of his right to them, for the benefit of the seller, or must hold them as a part of the funds to which his creditors generally may look. (v) The principle which must decide such a question would seem to be this: if the sale is so far complete that the property in the goods has passed to the buyer, and the seller has become his creditor for the price, the buyer can have no more right to give to the seller security or satisfaction or other benefit from those goods than from any others which he may possess. But so long as the transaction is incomplete, the buyer may warn the seller of the danger of going on with it, and may aid him in the use of all legal means to arrest the transaction where it stands, and so save to him his property. (w)

1 Attachment or execution by creditors of the vendee while the goods are in transit does not determine the vendor's right to stop them. Blackmail v. Pierce, 23 Cal 508 , Rucker v. Donovan, 13 Kan 251; Wood v. Yeatman, 15 B Mon. 270; Durgy Cement, etc. Co. v. O'Brien, 123 Mass. 12,14; Farrell v Richmond, & C. R. R Co, 102 N C. 390; Mississippi Mills v. Union, etc. Bank, 9 Lea. 314 . Harris v. Tenner, 20 South-western Rep. 82 (Tex.); Sherman v Rugee, 55 Wis. 346.

5 B. & Ad. 339; Stanton v. Eager, 16 Pick..467 A fortiori, an attachment, or seizure, on execution, by the creditors of the vendee will not. They can take no more rights than the vendee himself had. Smith v. Goss, 1 Camp. 282; Buckley v. Furniss, 15 Wend. 137; Naylox v. Dennie, 8 Pick. 198.

(v) See Heinecke v. Earle, 20 Law Rep. 702.

(w) In Smith v. Field, 5 T. R. 402, it was said that a contract of sale might be rescinded by the consent of vendor and vendee, before the rights of others were concerned. But where the vendee wished to return the goods, and the vendor instituted an attachment to attach them in the hands of the packer as the property of the vendee, it was considered as an election by the former not to rescind the contract; and the vendee afterwards having become bankrupt, the vendor was not allowed to recover the goods in trover against the packer. In Salte v. Field, id. 211, goods were bought by the vendee's agent, and lodged in the hands of the vendee's packer. While there, they were attached as the property of the vendee by some of his creditors. The vendee had in fact countermanded the purchase by letter to his agent, written before the delivery of the goods to the packer, though not received until afterwards. Held, the vendor assenting to take back the goods, that the property revested in him, and the attachment was avoided. See Atkin v. Barwick, 1 Stra. 165; Harman v. Fisher, 1 Cowp. 125; Alderson v. Temple, 4 Burr. 2239. The consent of the vendor to retake the goods is, however, essential, where the sale has been completed by actual delivery. Salte v. Field, 5 T. R. 211. See Richardson v. Goss, 3 B. & P. 119; Bar-tram v. Farebrother, Dan. & L. 42. Such consent may be inferred by the jury, if the vendor use and offer the property again for sale, although when he received it back, he said he would keep it " without prejudice." Long v. Preston, 2 Mo. & P. 262. In Quincy v. Tilton, 5 Greenl. (Bennett's ed.) 277, it is said, that where parties agree to rescind a sale, the same formalities of delivery, etc, are necessary to revest the property in the original vendor, which were necessary to pass it from him to the vendee. See also Lanfear v. Sumner, 17 Mass. 110; Miller v. Smith, 1 Mason, 437.