William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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the factor becomes insolvent; and a person who consigns goods
to another to be sold on joint account, is likewise to be considered
in the character of a vendor, entitled to exercise this right (d).'®*
The vendor's right is so strongly maintained, that while the goods
are on the transit, and the insolvency of the vendee oocurs, the
vendor may take them by any means not criminal (c).'* The
validity of the right depends entirely on the insolvency of the
vendee (g). It is not requisite that he should obtain actual pos-
session of the goods before they come to the hands of the vendee;
nor is there any specific form requisite for the stoppage of goods
in transitu; though it is well settled that the bankruptcy of the

{a) Ludlows V. Browne & Eddy. 1 Johns, Rep, 16. Parker r. M'lver, 1
Eq. Rrp. S. C. 281. Stubba v. Lund, 7 Mass, Rep. 453. The St. Joze In-
diano, 1 Whentoa, 212. Wood v. Roach, 2 Dail. Rep. 180. Walter v. Ro8S.
2 Wash. Cir. Rep. 283. Howall v. Davis and C, 5 Afunf. Rep. 34.

(b) Siffken v. Wray, 6 East's Rep. 371.

(c) D'.Aquila v. r^mbcrt, Ami?. Rep. 399. Feise v. Wray, 3 East's Rep. 93.
(rf) Kinloch v. Craig, 3 Term Rep. 119. Newson v. Thornton, 6 East's Rep.

17. Fenton v. Pearson, 15 ibid. 419.

(e) Jjord Hardwicke, in Snee v. Prescott, 1 Atk. Rep. 245.

{g) The Constantia, « Rob. Adm. Rep. 321.

"=* For the hi8U)ry of the right, see Gibson v. Caruthers, 8 M. & W. 337.

103 Tamer v. Trustees Liverpool Dock Co., 6 Ex. 543; Ellershaw v. Mag-
mac, 6 Id. 570; Seymour v. Newton, 105 Mass. 272. The right may be ex-
ercised by a party who pays for the goods and takes an assignment of the
bill of lading as security. Gossler v. Schepeler, 5 Daly (N. Y.), 476.

*°* An agent having general power to act for his prineipal ha» the right to
exercise the power without special authority. Reynolds i7. Boston & M. R.
R., 43 N. H. 589; Bell v. Moss, 5 Whart. 189.

*^ Any act of the vendor countermanding delivery is sufficient; as notice
to the carrier not to deliver. Mottram t-. Heyer, 5 Denio, 629, Rucker v.
Donovan, 13 Kans. 251; Reynold v. B. & M. R. R., 43 N. H. 591; Seymour
r. Newton, 105 Mass. 272.



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buyer is not of itself tantamount to a stoppage in transitu (a).
But a demand of the goods of the carrier, or notice to him to
stop the goods, or an assertion of the vendor's right by an entry
of the goods at the custom-house, or a claim and endeavours to get
possession, is equivalent to an actual stoppage of the goods (6)..'^

(2.) Of mattei'8 which alloxo or defeat the right.
The tran8itu8 of the goods, and consequently the right of stop-
page, IS determined by actual delivery to the vendee, or by cir-
cumstances which are equivalent to actual delivery.

* There are cases in which a constructive delivery [ * 544 ]
will, and others in which it will not, destroy the right
The delivery to a carrier or packer, to and for the use of the ven-
dee, or to a wharfinger, is a constructive delivery to the vendee;
but it is not sufficient to defeat this right, even though the car-
rier be appointed by the vendee. It will continue until the place
of delivery be, in fact, the end of the journey of the goods, and
they have arrived to the possession, or under the direction of the
vendee himself (c).'^' If they have arrived at the warehouse of
the packer, used by the buyer as his own, or they are landed at
the wharf where the goods of the vendee were usually landed and

{a) Haswell t». Hunt, cited in 5 Term Rep. 231. Ellis ». Hunt, 3 Ibid. 464.
Scott V. Pettit, 3 Ro». ^ Pull. All,

(6) Walker v, Woodbridge, Cookt^tt B. L. 494. Northey & Lewis r. Field,
2 Esp. Rep. 613. Mills v. Ball, 2 Bos, <C- Pull, 457. Litt v. Cowley, 7 Taunt
Rep. 169. Newhftll v. Vargas, 13 Maine R. 93.

(c) The (ramtitus is not at an end until the goods have reached the place
of destination named by the vendee. Coates /». Rail ton, 6 Barnw. & Cress.
422. and have come to the actual possession of the vendee, or under circum-
stances equivalent thereto. Buckley v. Furniss, 15 Wendell, 137.

** See Donath v. Broomhead, 7 Pa. St. 301, where the goods were at the
custom-house and the vendee had paid freight, and it was held the right was
not lost, the goods not having been entered. But see Parker v. Byrnes, 1
Lowell, 539.

**" The Htoppage in transitu is called into existence for the vendor's benefit,
after the buyer has acquired tUle, and ri^l of possession, and even constructive
possessimiy but not yet actual possession. Keeler r. Goodman, 1 1 1 Mass. 490;
James i\ Griffin, 2 M. & W. 633.

In the last mentioned case Parke, B., says "The actual delivery to the
vendee or his agent, which puts an end to the iransitus, or state of passage,
may be at the vendee's owu warehouse, or at a place which he uses as hia
own, though belonging to another, for the deposit of goods, or at a place
where he mean.^ the gcwds to remain, until a fresh destination is communi-
cated to them by orders from himself, or it may be by the vendees taking
possession by himself or his agent at some point short of the original in-
tended place of destination.*' See Benjamin on Sales. § 840.

So long as they remain in the possession of the carrier as carrier the right
exists, Atkins i% Calby, 20 N. H. 154; Berndlsou t'. Strang, 30 L, J. Chy.



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kept, ibc transifus is at an end, and the right of the vendor ex>
tingnished (a). The delivery to the master of a general ship,
^or of one chartered by the consignee, is, as we have already, ob-
served, a delivery to the vendee or consignee, bnt still subject
to this right of stoppage, which has been termed a species of

jiist poatliminii (6). And yet, if the consignee had
[ *545 ] hired the ship for a lerm *of years, and the goods were

pat on board to be sent by him on a mercantile adven-
ture, the delivery woald be absolute, as much as a delivery into
a warehouse belonging to him, and it would bar the right of stop-
page (c). The idea that the goods must come to the corporal
touch of the vendee is exploded; and it is settled, that the trati-
situs is at an end, if the goods have arrived at an intermediate
place, where they are placed under the orders of the vendee, and
are to remain stationary until they receive his directions to put
them again in motion for some new and ulterior destination (d). ****
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 ques-
tion, 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;

• (a) Snee r. Prescott, 1 Atk, Rep. 248. Stokes v. La Riviere, cited in :{
Tenn, Rep. 466, and 3 JEasl^8 Rep. 397. Ellis r. Hunt, 3 Term. Rep, 464.
liichnrdson r. Goss, 3 Bos. & Pull. 119. Scott r. Pettit, 3 IbM. 469. Smith r.
Goss, 1 Canipl\ Rep. 282. Lord Alvanley in 3 Bo$. A PnlU 48. Dutton r.
Solomonson, 3 Ibid. 582. Rowe v. Pickford, 8 Tami Rep. 83. Tucker r.
Humphrey » 4 Bingham^ s Rep. 516.

(6) IJohtlingk r. Inj^lis, 3 Eaal'n Rep. 381. Cox v. Harden, 4 Ibid. 211.
Newhall v. Vargas, 13 M^nine R. 93. The master |»aTe a receipt for the goods
on delivery on board by the consignor, and afterwards signed a bill of lading
to the consignee. That circumstsmcedid not take away the right of stoppage.
Thompson v. Trail, 2 Cctrr. d Payne, a34. But in BoUin p. Huffnagle, 1
Rnwlr^s Rep. 1, there was a delivery of goods at a foreign port, to the mas-
ter of the consignee's own ship, for him ; and it was held that the lra».^ilus
was ntan end. This last decision may perhaps be questioned, inasmuch a^i
the delivery in that case, to the master of the consignee's ship, was for the
purpose of conveyance to him, and not like the case of Fowler r. Kyner,
cited in the next note, for the purpose of disposal in a foreign markets

(c) Fowler v. Kvmer, cited in 3 Basils Rep. 396. Wright v. Lawes, 4 Ei*p.
Rep. 82. Stubbs r. Lund, 7 Mass. R. 457, S. P.

(d) Dixon v. Baldwin, 5 BtsCn Rep. 175. Foster v. Frampton, 6 Bamw. <£•
CreM. 107.

'** See James r. Griffin, ubi supra, note 107. As to how far the carrier may
change his character to that of agent to keep the goods in safe custody for
the burer, see (Juilford r. Smith, 30 Vt. 49; Buckley r. Pumiss, 15 Wend.
137; Calahan r. Babcock, 21 Ohio St. 281.



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for if it has once fairly arrived at its destiDation, so as to give
the veadee the actual exercise of dominion and ownership over
it, the right is gone (a). The cases in general upon the subject
of constructive delivery, may be reconciled by the distinction, that
if the delivery to a carrier or agent of the vendee be far the pur-
pose of conveyance to the vendee, the right of stoppage continues,
notwithstanding such a constructive delivery 'to the vendee; but if
the goods be delivered to the carrier or agent for safe custody ^ or for
disposal on the part of the vendee, and the middleman is by agree-
ment converted into a special agent for the buyer, the transit or
passage of the goods terminates, and with it the right of stop-
page. So, a complete delivery of part of an entire par-
cel or cargo, terminates * the transitus, and the vendor [ * 546 ]
cannot stop the remainder (b),^^

A delivery of the key of the vendor's warehouse to the pur-
chaser (c); or paying the vendor rent for the goods left in his
warehouse (d); or lodging an order from the vendor for de-
livery with the keeper of the warehouse (c) ; 6t delivering to the
vendee a bill of parcels, with an order on the storekeeper for the
delivery of the goods (/); or demanding and making the goods

(a) Wright r. I^iwes, 4 Esp. Rep. 82.

(b) Hlwheyv. Hey ward. 2 H. Biacks. Rep. 504. Hammond r. Anderson, 4
Bos. & Pull. 69. IjotA Ellenboroagh, 6 Enst^s Rep, 627. In these cases there
was an nnequivocal act of possession and ownership. In other cases, where «
only a portion of the goods were delivered, the right of stoppage as to the
resfdne has heen maintained. Hanson «. Meyer, 6 East, 614. Buckley v.
Fumiss. 17 Wendell, 504.

(c) Ix)rd Kenyon, 3 Ttrm Rep, 468.

(d) Hurry v. Mangles, 1 Campb, Rep, 452. SufiTering the goods, hy agree-
ment, to lie free of rent in the vendor's warehouse, for a time, is still a com-
plete delivery, and destroys the lien. Barrett v. Goddard. 3 Mawn'fi Rep,
1 07. Bat as between vendor and vendee, the lien is not divested by an order
of vendor that he holUs to the order of vendee the goods specified free of rerU,
while the goods remain in thA same warehouse unpaid for. Townley v.
Crump, 4 Adolph, it Ellin, 58.

(e) Harman v. Anderson, 2 Camph. Rep. 243.

(/) HolHngsworth v. Napier, 3 Caine^ Rep. 182. In Akerraan r. Hum-
phrey, 1 Carr. & Pnyne, 53, it was held, that the delivery of a shipping note
by the consignee to a third person, with an order to the wharfinger to de-

** The delivery to the vendee's servant will be sufficient to oust the ven-
dor's right, so if they are delivered into his own cart or vessel. Turner v.
Liverpool Docks Co., 6 Ex. 543; Van Casteel r. Booker, 2 Ex. 691. But if
the vendor deliver them to the captain of the buyer's vessel as carrier or as
an agent to carry and not to receive possession for the buyer, and so specifies
in his bill of lading he can claim the right. Bee Turner v. Liverpool, &c.,
ubi supra; Schotsman v, Lancashire & Yorkshire R. Co., L. R. 2 Ch. App.
332. As to delivery to a ship chartered by the purchaser, see Sandeman v.
Scnrr, L. R. 2 Q. B. 86; Aguirre v. Parmlee, 22 Conn. 473; Stubbs v. Lund,
7 Mass. 453.

46 VOL. II. KENT. 705


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by the agent of the vendee, at the inn where they had arriyed, at
the end of the journey (a); or suffering the goods to be marked
and resold, and iparked again by the under purchaser (&); have
all been held to amoant to acts of delivery, safficient to take away
the vendor's lien, or right of stoppage in transitu. On the other
hand, if the delivery be not complete, and some other act remains
to be dqne by the consignor, the right of stoppage is not gone (c).
So, while a vessel is performing quarantine at the port of de-
livery, and the voyage not at an end, the consignor's right of

stoppage has been held not to be divested, even by a pre-
[ * 547 ] mature *possession on behalf of the consignee (d).

That doctrine has, however, been since contradicted and
overruled, by Lord Alvanley, in Mills v. Ball (e), and by Mr. J.
Chambre, in Oppenheim v. Russel (/); and the better opinion
now is, that if the vendee Intercepts the goods on their passage
to him, and takes possession as owner, the delivery is complete),
and the right of stoppage is gone.^'^ But if the goods have ar-
rived at the port of delivery, and are lodged in a public ware-
house, for default of payment of the duties, they are not deemed
to have come to the possession of the vendee, so as to deprive
the consignor of his right (flr)."*

liver the goods to such third person, did not pass the property so as to pre-
vent a stoppage in fransifu by the consignor; and that decision was adopted,
assonnd law, in Tucker v. Humphrey, 4 Bing. Sep. 516.

(a) Ellis V. Hunt, 3 Term Bep. 464.

(6) Stoveld tJ. Hughes, 14 Ease s Bep. 308.

(c) Withers v. Lyss, 4 Camhp. Bep. 237. Busk v. Davis, 2 Mfnde ^ Sdw.
397. Coates v. Railton, 6 Barww. dt Cress. 422. Naylor v. Dennie, 8 Pick,
Bep. 198.

{d) Hoist V. Pownal, 1 Esp. Bep. 240,

(e) 2 Bos. d' PtiH. 461.

if) 3 IhM. 54.

(g) Northey v. Field, 2 Esp. Bep. 613. Nix v. Olive, cited in AhboH &»
Shipping. 426. The English system of warehousing goods was proposed by
Rir Robert Walpole, in 1733, in his Excise Scheme, but not adopted. Its ad-
vantages were poi n ted on t by Dean Tucker, i n 1750. The scheme was revived
and recommended by Mr. Fitt, and digested in a practicable shape under the
administration of Mr. Addington. The statute of 43 Geo. III., ch. 132, Jaid
the foundation of this wise and politic system, and the successive statuteson
the subject were consolidated by the act of 4 Geo. IV., in 1823, and the
whole amended and re-ena<'ted by the statute of 6 Geo. IV., and lastly, by
the statute of 3 & 4 William IV., ch. 57, which comprehends the system as

'" In London & N. W. R. Co. v. Bartlett. 7 H. & N. 400. it was decided
that the carrier and consignee might agree together for the delivery of goods at
any place they pleased. Durgv Cement Co. v. O'Brien, 5 Cent. L. J. 147;
Jordan v. James, 5 Ohio. 88; Wood v. Yeatman, 15 B. Mon. 270.

*" Haysr. Mouille, 14 Pa. St. 48; Seymour v. Newton, 105 Mass. 275;
Buckley v. Furniss, 15 Wend. i:37; Allen v. Mercier, 1 Ash. 103.



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(8.) Of acts of the vendee affecting the right,

A resale of the goods by the vendee does not, of itself, and
without other circumstances, destroy the vendor's right of stop-
page in transitu (a). But if the vendor has given to the vendee
documents sufficient to transfer the property, and the
vendee, upon the strength of them, sells the goods *to [ * 548 ]
a bona fide purchaser without notice, the vendor would
be divested of his right A bill of lading usually has the word
assigns; the goods are to be delivered to the consignee or his as-
signs, he or they paying freight; and a great question has accord-
ingly arisen, and been very elaborately discussed and litigated in
the English courts, whether the bill of Jading could be negotiated
by the consignee like a bill of exchange, and what legal rights
were vested in the assignee. In the case of Lickbarrow v. Ma-
son (6), it was decided by the K. B., that a bona fide endorse-
ment, for a valuable consideration, of a bill of lading, by the
consignee to an assignee, who had no notice that the goods were
not paid for, was an absolute transfer of the property, so as to
divest the consignor of his right of stoppage in transitu as against
such assigned. There is no case on mercantile law which has af-
forded a greater display of acute investigation. The judgment
of the K B. was reversed in the exchequer chamber; and Lord
Loughborough took a masterly view of the whole subject, and
completely overthrew the doctrine of the negotiability of bills of
lading (c). The case then went to the house of lords, where Mr.

now io operation. The object of the warehousing system is to lodge import-
ed articles in public warehouses of special security, at a reasonable rent,
without payment of the duties on importation, till they be withdrawn for
home consumption, and if re-exported, no duty is ever paid. It secures the
duties on goods lawfully imported for use and sale in England, and relieves
the trader from immediate payment in cash, and nntil the goods are with-
drawn for home consumption. It allows the storage even of prohibited
goods in British warehouses, on special security for re-exportation; and per-
mits the transfer of goods in the warehouse, without requiring payment of
the duties, until they are withdrawn ibr use. If the goods are destroyed by
inevitable accident before they are withdrawn, although the government
does not stand insurer for their safety, the duties are uniformly remitted. A
clear analysis of the warehousing provisions, is given in 1 Beirs Com, 187 —
190, 5th edit., and in hV Cullock' 9 Dictionary of Commerce^ 2d edit, art. ware-
housing system, where the statute of 3 & 4 William IV., is given at large,
with its numerons and detailed proviMons.

(a) Craven v. Ryder, 6 Tantii, Rep. 433. Lord Alvanley, 3 Bob, dt Pull, 47.
Whitehouse v. Frost, 12 EasVs Rep. 614. Stoveld u. Huj^es, 14 Ibid, 30a

(6) 2 Term. Rep. 63.

(c) Mason v, Lickbarrow, 1 H, Blacks, Rep, 357.



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Justice Buller most ably supported the decision of the K. B (a).
A new trial was awarded (6), and a special verdict taken, and
judgment given thereon without discussion; the judges of the K.
B. declaring, that notwithstanding the decision in the exchequer

chamber, they retained their former opinions (c). The
[ * 549 ] question, therefore, remains, to a certain * degree, still

floating and unsettled; though it seems now to be con-
sidered as the law at Westminster Hall, that if a bill of lading
be assigned bona fldSy and for a valuable consideration, it is a
transfer of the property; and in the case of the consignee, if it be
made without notice of the insolvency of the consignee, the pro-
perty is absolutely vested in the assignee of the consignee, and the
consignor has in that case lost his right to stop (d). It is likewise
considered to be the law in this country, that the delivery of the bill
of lading transfers the property to the consignee; and it seems to
be conceded, that the assignment of it by the consignee, by way of
sale or mortgage, will pass the property, though no actual deliv-
ery of the goods be made, provided they were then at sea. The
rule is founded on sound principles of mercantile policy, and is
necessary to render the consignee safe in the acceptance of the
drafts of his correspondent abroad, and to afford him the means
of prompt reimbursement or indemnity (e)."'

(a) 6 Eaaf^s Rep. 17, t» notis.

(b) 2 H. Blacks, Sep, 211. 5 Term. Rep. 367.

(c) Lickbarrow v. Maaon, 5 Term. Rep. 683. In France, the debatable
nature of the subject has been strikingly displayed; for the question of the
negotiability of bills of lading was discussed by such masters of commeFcial
law as Valin and Emerigon, and they came to directly opposite conclusions.
The first maintained, that bills of lading were negotiable instruments, and
the latter denied it. Valines Com. tome i. p. 606, 607. Emeriffon^ dea An.
tome i. 318, 319. By the Code of Qmmeree, (art. 281,) bills of lading may
be to order, or to bearer. This settles the question in favour of their nego-

{d) Coxe 9. Harden, 4 Eaet^a Rep, 211. Cuming r. Brown, 9 Ibid. 506.
Morison V. Gray, 2 Ring. Rep. 260. Walter v. Ross, 2 Wash, dr. Rep. 283.
WkaHon'a Dig. tit. Vendor, n. 80. Hallie v. Smith, 1 J?o«. <C- Pull. 663. In
Morison v. Gray, 9 Moore's G. B. Rep. 484, it was held, that the bona fide as-
signee of a bill of lading had a sufficient property to stop the goods while in
transitu^ on the insolvency of the vendee, and to sue in his own name the
wharfinger, who refhsed to deliver up the goods. But though a bill of lad-
ing be negotiable it seemed in a late case to be doubted whether a bill of
lading was conclusive as between the ship-owner and & bona fide endorsee for
value. Berkley v. Watling, 7 Adolp. & Ellis, 29.

(e) Wright v. Campbell, 4 Burr. Rep. 2051. Griffith f. Ingledew, 6 Serg.

"* There must be a bona fide transfer. Seymour f. Newton, 105, Moss. 275;
Harris v. Hart, 6 Duer. 606; Stanton v. Eager, 16 Pick. 473; Sawyer v. Jos-
lin, 20 Vt. 172; Kitchen v. Spear, 30 Vt. 545^ Lee v. Kimball, 45 Me. 172;
Dows V. Perrin, 16 N. Y. 325; Cooard v. Atlantic Ins. Co., 1 Petera, 445.



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* Bat it mast not be understood that the consignee [ * 550 ]
can, in all cases by his endorsement of the bill of lading
to a third person, even for a valuable consideration, and without
collusion, defeat the right of the consignor to stop the goods. It
will depend upon the nature and object of the consignment and
the character of the consignee. As a general rule, no agreement
made between the consignee and his assignee, can defeat or affect
this right of the consignor; and the consignor's right to stop in
transitu is prior and paramount to the carrier's right to retain as
against the consignee ^a)."^ A factor, having only authority to
sell, and not to pledge the goods of his principal, cannot divest
the consignor of the right to stop the goods in transitu, by en-
dorsing or delivering over the bill of lading as a pledge, any more
than he could by a delivery of the goods themselves by way of
pledge; and it is the same thing whether the endorsee was or was
not ignorant that he acted as factor (6). If the assignee of the

i& Ratofe, 429. Peters v. Ballistier, 3 Pick. Rep. 495. Walter ». Ross, »\tpra.
In Convad u. The Atlantic Insurance Company, 1 Petersi' (I. S. Rep. 386, it
was decided, that the consignee, being the antborized agent of the owner to
receive the goods, his endorsement of the bill of lading to a bona fide pur-
chaser, for a valuable consideration, without notice of any adverse interest,
passed the property as against all the world. This is the result of the prin-
ciple that bills of lading are transferable by endorsement, and pass the pro-
perty. Strictly speaking^ no person but such consignee can, by endorsement
of the bill of lading, pass the legal title to the goods; but if the shipper be
the owner, and the shipment be on his account and risk, he can pass the legal '
title by nssignment of the bill of lading, or otherwise: and it will be good
against all persons, except the purchaser for a valuable consideration, by an
endorsemenl of the bill of lading itself. The same principal was declared .in
Nathan r. Giles, 5 Taunf. Sep. 558. A deposit of the bill of lading, without
endorsement, will create a lien on the cargo to the amount of the money ad-
vanced on the strength of the deposit, which would be superior to the con-
signor's right of stoppage. That right came from the courts of equity, and
is founded upon equitable considerations; and it consequently must yield to
a still higher equity in a third person. In Louisiana, it has been held, that
goods shipped could not be attached by the creditors of the shipper, after the
bill of lading had come into the hands of the consignee; but they might be
attached by the creditors of the consignee. M'Neill v. Glass, 13 Martin's
Louis. Rep. 261.

(a) Oppenheim r. Russell, 3 Bos. <& Pull. 42. The right of stoppage is held
not to be divested though the goods be levied on by execution at the suit of
a creclitor of the purcha.ser, provided it be exercised before the imnsilus is at
an end. The vendor's lien has preference; it is the elder lien and cannot be
superseded by the attachment of a creditor. Smith v. Goss, 1 Otmpb. N. P.
Bep. 252. Buckley r. Fumiss, 15 WendeU, 137. Marshall, J., in Hause v.

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 92 of 108)