Scottish Court of Session Decisions

Upon 5th October 1893 Messrs Dymock, Smith, & Company, coal exporters, Glasgow, telegraphed to the Cowdenbeath Company, Limited—“Would you kindly wire us on receipt hereof your lowest price for 10/1200 tons Cowdenbeath coal, f.o.b. Burntisland, shipment latter half of this month.” On 6th October the Cowdenbeath Company wrote in reply—“Confirming our telegram in reply to yours of yesterday, we hereby offer to supply you with one thousand to twelve hundred tons of steam coal to be shipped latter half of this month, the shipments to be as may be mutually arranged. … You will provide sailing vessels or steamers at Burntisland. … The point of delivery shall be alongside the ship in the port above mentioned, where our responsibility for weight and quality shall terminate. The price to be per ton, including shore and machinery dues, ten shillings and sixpence, at Burntisland. … The quantity of coal herein named is for bona fide exportation by the purchaser, and not for sale to other export merchants, or any other person in Great Britain, unless specially permitted by us in writing.' Messrs Dymock, Smith, & Company wrote in reply— “The price seems a very stiff one, but we are making offer to our friends abroad accordingly, and will advise you by Monday.” Communications between the parties followed, in the course of which Dymock, Smith, & Company asked that the offer should be kept open for a day or two in order that they might have an answer from their friends abroad as to whether they would accept the price or not. To this the Cowdenbeath Company agreed. On 11th October Dymock, Smith, & Company wrote—“Referring to telegrams exchanged with you, we confirm having bought from you cargo of about 1400 tons Cowdenbeath coal at 10s. 6d. per ton f.o.b. Burntisland, for shipment per s.s. Whitehead,' which steamer is expected ready to load at Burntisland on Monday first, and we shall feel obliged by your giving the necessary instructions for loading accordingly.”

The “Whitehead” belonged to the Ulster Steam Shipping Company, but had been chartered by Messrs Dymock, Smith, & Company to take the coal to Copenhagen.

In accordance with their contract the Cowdenbeath Company forwarded the coal to Burntisland, and after some delay the loading of the vessel was completed at half-past three on the afternoon of 25th October 1893.

Dymock, Smith, & Company were customers of the Bo'ness branch of the Clydesdale Bank, Limited, and were in the habit of getting advances from that bank upon the security of the bills of lading of cargoes which they were shipping abroad, the usual course of business being that along with the bill of lading they sent the bank a bill drawn upon the foreign buyer of the goods, and that the bank upon receiving the acceptance of the foreign buyer forwarded the bill of lading. On 23rd of October 1893 Messrs Dymock, Smith, & Company wrote to the bank as follows— “We will send you tonight or to-morrow, documents per ‘White-head’ s.s., with draft at three months, payable London, on Messrs Schach, Steenberg, & Company, Copenhagen, for about £670 stg., for forwarding as usual.” Later on the same day they wrote—“Enclosed we beg to hand you insurance policy per s.s. ‘White-head,’ along with bill at three months on Messrs Schach, Steenberg, & Company, for £672, 4s. 11d., payable London, and we will

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send you B.L. for this cargo to-morrow night. These documents to be delivered up against S. S. & Co.'s acceptance of our draft.” At this time Dymock, Smith, & Company were in embarrassed circumstances, and had no funds at their credit with the bank. A few days previously they had been warned that they would not be allowed to overdraw their account without giving the bank security, and these letters were written with the view of obtaining an advance.

In consequence of the undertaking contained in the said letters, cheques of Messrs Dymock, Smith, & Company to the amount of £727 were honoured by the bank on the 24th October. Upon the same day, Messrs Dymock, Smith, & Company being anxious to telegraph to their consignee that the cargo was loaded, and that they had the bills of lading, their agent at Burntisland induced the master of the “Whitehead," while the loading was still incomplete, to sign a bill of lading, blank as to the quantity of coal shipped, in name of Dymock, Smith, & Company as shippers, and to deliver it to them. Upon the following day, October 25th, after the loading had been completed, Dymock, Smith, & Company filled in the amount of coals shipped, and at 4 p.m. they transmitted the bill of lading to the bank duly indorsed in its favour, and it was received by the bank about 5 o'clock. At 7 p.m. on the same day the Cowdenbeath Coal Company served an interdict upon the master of the “Whitehead,” interdicting him from delivering to Dymock, Smith, & Company, the cargo of coals then on board said vessel. This step was taken by the Cowdenbeath Coal Company in consequence of Dymock, Smith, & Company having failed to meet a bill granted by them to the said Coal Company.

In order to enable the vessel to proceed on her voyage, it was subsequently arranged between the bank and the Cowdenbeath Company that she should proceed to Copenhagen, leaving the ultimate rights of parties to the price payable by Schach, Steenberg, & Company, viz., £657, to be settled by action in Court. On 10th November 1893 Messrs Dymock, Smith, & Company were made notour bankrupt.

In May 1884 the Cowdenbeath Coal Company, Limited, brought an action against the Clydesdale Bank to recover payment of the said sum of £657.

They pleaded—“(1) The pursuers having effectually stopped the said goods in transitu, are entitled to recover the value thereof. (2) The alleged indorsation of the bill of lading, and delivery of the same to the defenders were invalid and ineffectual, both at common law and under the statute 1696, c. 5, and the pursuers are entitled to decree as concluded for.”

The defenders pleaded, inter alia—“(3) The delivery of the goods on board the ‘Whitehead’ was delivery to John S. Dymock, Smith, & Company, and excluded the remedy of stoppage in transitu. (4) The pursuers have no right or title to set aside the transference of the goods to the defenders by the indorsation of the bill of lading either at common law or under the Statute 1696, cap. 5. (5) The defenders being the onerous holders of the bills of lading, were entitled to the custody and control of the goods in question, and to apply the proceeds to account of the advances made by them to John S. Dymock, Smith, & Company on the security thereof.”

A proof was allowed, the result of which sufficiently appears from the above narrative and the opinions of the Judges.

Upon 15th November 1894 the Lord Ordinary (Low) sustained the 4th and 5th pleas-in-law for the defenders, and assoilzied them from the conclusions of the summons.

“ Opinion.—The first question in this case is whether the cargo of coals which was sold by the pursuers to Messrs Dymock, Smith, & Company, and put on board ship by the former at Burntisland, was subsequently effectually stopped in transitu by them.

After the coal had been shipped on board the Whitehead,' but while she was still lying in the harbour of Burntisland, the pursuers, having heard that the affairs of the vendees, Messrs Dymock, Smith, & Company, were embarrassed, obtained an interdict in the Sheriff Court against the master, prohibiting him from delivering the coal to Dymock, Smith, & Company or their order.

The pursuers maintain that although the coal was loaded it was still in transitu, while the defenders contend that the transitus, in a question between the pursuers and Dymock, Smith, & Company, came to an end when the coal was put on board ship, and a bill of lading, made out in Dymock, Smith, & Company's name, was delivered to them.

There is no doubt as to the general rule of law, namely, that goods are in transitu so long as they are in the hands of a carrier as such, even although he is appointed by the purchaser— Berndston v. Strang, L.R., 3 Ch. 588; ex parte Rosevear China Clay Company, L.R., 11 Ch. Div. 560; Lyons v. Hoffnung, L.R., 16 App. Cas. 391. But there is an exception to that rule which may be stated thus:—When the goods have arrived at the destination disclosed in the contract between the vendor and vendee, or to which the vendee has instructed the vendor to send them, the transit will be at an end so far as the vendor is concerned when the goods reach that destination, even although the ultimate destination of the goods necessitates a further transit— ex parte Miles, L.R., 15 QBD 39, and Bethell v. Clark, L.R., 20 Q.B.D. 615.

The question is, whether this case falls under the rule or the exception, and in order to answer that question it is necessary, in the first place, to see what was the contract between the parties. The terms of the contract are set forth in the pursuers' letter to Dymock, Smith, & Company of 6th October 1893, and Messrs Dymock's letter to the pursuers of 11th October 1893.

In the former letter the pursuers, after referring to telegrams which had passed

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between them and Messrs Dymock, proceed thus (I quote only the important part of the letter)—“We offer to supply you with one thousand to twelve hundred tons of steam coal to be shipped latter half of this month. … You will provide sailing vessels or steamers at Burntisland. … the point of delivery shall be alongside the ship in the port above mentioned where our responsibility for weight and quality shall terminate. … The quantity of coal herein named is for bona fide exportation by the purchaser, and not for sale to other export merchants, or any other person in Great Britain.”

The letter of Messrs Dymock of 11th October is in these terms—“Referring to telegrams exchanged with you, we confirm having bought from you cargo of about 1400 tons Cowdenbeath coal at 10s. 6d. per ton f. o. b. Burntisland for shipment per s.s.” Whitehead,' which steamer is expected ready to load at Burntisland on Monday first, and we shall feel obliged by your giving the necessary instructions for loading accordingly.

The ‘Whitehead,’ which belonged to the Ulster Steam Shipping Company, had been chartered by Messrs Dymock to take the coal to Copenhagen.

While the coal was in course of being loaded, the master signed bills of lading, blank as to the quantity of coal, in name of Messrs Dymock as shippers, and delivered them to Messrs Dymock.

These are, I think, all the material circumstances requiring to be kept in view in determining whether or not the coal was in transitu when it was stopped.

I am of opinion that the rule of law which I have already stated applies to this case, and that the coal was in transitu when it was stopped.

The contract between the pursuers and Messrs Dymock makes it clear that the loading of the coal at Burntisland was with the view to a further transit, because Messrs Dymock were taken bound to send it abroad. When therefore the pursuers put the coal into the ship, they delivered it to the master, not as the agent of Messrs Dymock to hold for them, but as a carrier who was to carry it to its ultimate destination.

The defenders laid great stress upon the fact that the ultimate destination was not disclosed in the contract between the vendors and vendee. I do not think that that makes any difference, it being part of the contract that the coals, after being put on board by the vendor, were to be taken abroad. The case of the Rosevear China Clay Company, L.R., 11 Chan. Div. 560, is a direct authority upon the point, because the very argument now urged by the defenders was there rejected. Apart from authority, I should have come to the same conclusion, because I cannot see any difference in principle between a contract that the vendors are to put goods on board ship for the purpose of being conveyed to a certain definite place, and a contract that the vendee shall be bound, when the vendor has put the goods on board ship, to send them out of the country. In both cases the contract makes it clear that the goods are put on board ship merely in course of their transit to their destination.

The defenders also argued that the fact that the bill of lading was in name of Messrs Dymock as shippers was sufficient to put an end to the transitus in a question with the pursuers. I know of no authority for that proposition. The Messrs Dymock were the shippers in relation to their consignees in Copenhagen, and they were the parties who had chartered the ship. It therefore appears to me that they were entitled to have the bills of lading made out in their name, and I do not see how that affects the cardinal fact that the contract between vendor and vendee made it clear that the coals came into the master's possession as a carrier who was to take them to their destination abroad.

The defenders also relied upon the Scotch case of Morton v. Abercromby, 20 D. 362, which no doubt at first sight appears to be in their favour. When the case is examined, however, it seems to me to differ in essential particulars from the present case, and not to be inconsistent with the rule of law which I have held to be applicable here.

The facts as stated in the interlocutor of the First Division are as follows—‘First, that Dickson & Company, merchants in Glasgow, having on or about 1st February 1854 engaged a certain amount of tonnage-room in the ship “Caledonia,” then loading at Glasgow for Melbourne, did on or about the 7th of said month purchase from the respondents, Alexander Abercromby & Company, merchants in Glasgow, the goods in question on credit, and did direct that the goods should be packed in a manner suitable for the Australian market; second, that on or about the 23rd of said month the goods were by direction of Dickson & Company, conveyed by the sellers to the wharf and put on board the said ship “Caledonia,” and an acknowledgment or receipt was obtained from the mate for the goods, as having been put on board by order, on account and at risk of Dickson & Company, which acknowledgment or receipt was by the sellers delivered to Dickson & Company, the purchasers, in order that they might procure the bills of lading in their own names as shippers, and that accordingly the bills of lading were granted by the master of the “Caledonia” to Dickson & Company in their own names as shippers of the goods.’ Upon these findings in fact the following finding in law was pronounced:—‘Find in point of law that there was no room for the exercise by the sellers of the right of stoppage in transitu, the delivery to the purchasers having been completed, and the purchasers having themselves been the shippers of the goods for Melbourne, and as such having obtained the bills of lading in their own names and disposed thereof.’

Now it seems to me that the basis of that judgment was that the Court held that the circumstances amounted to actual delivery of the goods by the sellers to the

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purchasers, and no one disputes that, if goods are actually delivered to the purchaser or to his agent to hold for him, there is an end of the transit as between seller and purchaser, although the goods may immediately commence another transit to their ultimate destination. That it was the fact of delivery to the purchaser that the Court proceeded upon is shown by the opinion of the Lord President, where he says (p. 368), ‘I am not aware of any case in which stoppage in transitu has been recognised in such a state of matters, holding that delivery was made to Dickson & Company, that Dickson & Company were themselves the shippers of the goods, and that Abercromby & Company were not consigning them to any party as consignees of Dickson & Company. They’ (I take the Lord President to be referring to Dickson & Company)' were disposing of them as their own goods at the time, and having possession of them.’

I am confirmed in the above view of the grounds of the judgment in Morton v. Abercromby by a reference to the note of the Sheriff (Alison) in the session papers. The First Division affirmed the Sheriff's interlocutor, and apparently were satisfied with the grounds upon which he based his judgment. Now, I find that the Sheriff cited two cases (first) Bohtlingk v. Inglis, 3 East. p. 381, and (second) M‘Taggart v. Kymer, 7 Term Reports, 442. The former case, which the learned Sheriff accepted as an authority, was one giving effect to the general rule of law that goods in the hands of a shipmaster employed as a carrier are in transitu. The case of M' Taggart v. Kymer is not reported under the reference given by the Sheriff, although it is there referred to as an authority in the report of the case of Hodgson v. Toy. It is, however, reported under the name of Fowler v. Kymer & M'Taggart in 1 East. p. 522, and is also commented upon in the judgment in Bohtlingk. In Fowler's case the purchaser had chartered a ship for three years, and the master and crew were in his pay. The ship was thus the purchaser's ship, and delivery on board the ship was actual delivery to him. It was therefore held that in a question with the seller, the transitus was over when the goods were put on board the ship.

The Sheriff's opinion was that Morton v. Abercromby was ruled by Fowler v. Kymer & M' Taggart, and not by Bohtlingk v. Inglis, he holding as the First Division did, that there had been actual delivery to Dickson & Company.

Such being the opinion which I have formed upon the question of stoppage in transitu, it is necessary to consider the further question which is raised, viz.,— whether the pursuers' right to stop in transitu was not defeated by the indorsation and delivery of the bill of lading to the defenders for onerous causes prior to the stoppage.

It is proved that the defenders received the hill of lading from Dymock & Company on the afternoon of the 25th October, prior to the stoppage of the goods by the pursuers, and that the defenders had allowed Messrs Dymock to overdraw their account on the 24th October. It is also proved that Messrs Dymock were at the time hopelessly insolvent.

The pursuers' case is that if the defenders received the bill of lading as a security at all, they received it as a security for advances already made, and that therefore Messrs Dymock being insolvent the transaction was bad under the Act 1696, c. 5.

As to what actually occurred, I think that there can be no doubt, because Mr Dymock and Mr Swan (the defenders' agent at Bo'ness), between whom the transaction was carried out, appeared to me to be witnesses whose reliability could not be impeached.

It appears that Messrs Dymock kept their bank account (the only one which they had) at the branch of the defenders' bank at Bo'ness. During the year 1893 the account had been generally overdrawn. At first overdrafts seem to have been allowed without security, but latterly security was required. In particular, upon the 20th October, and again on the 21st, Mr Swan wrote to Mr Dymock intimating distinctly that no further overdraft would be allowed without security.

The security which Mr Dymock was in the habit of giving to the bank was bills of exchange and bills of lading. When Mr Dymock purchased coal for exportation he was in the habit of sending the bill of lading along with a bill of exchange for the acceptance of his consignee abroad to the bank. The bank then obtained the acceptance of the consignee in exchange for the bill of lading. When the bill of lading or the acceptance, as the case might be, was in the hands of the bank, it was regarded as security against which Messrs Dymock might draw upon their account.

On the 21st and 22nd of October the bank account was overdrawn to the extent of some £816, but the bank held a bill of exchange for £600, and the bill of lading of a cargo of timber valued per invoice at £222. The account was therefore overdrawn to practically the full value of the security held by the bank, and it is certain that further overdrafts (at least to an amount beyond the small margin of security) would not have been allowed unless additional security was given.

On 23rd October Messrs Dymock wrote to Mr Swan—‘We will send you to-night or to-morrow documents per “Whitehead” s/s with draft at 3 mos., payable London on Messrs Schach, Steenberg & Company, Copenhagen, for about £670 stg., for forwarding as usual.’

On the same day Messrs Dymock again wrote—

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‘Enclosed we beg to hand you insurance policy per s/s “Whitehead,” along with bill at 3 months on Messrs Schach, Steenberg & Company, for £672, 4s. 11d., payable London, and we will send you B/L for this cargo to-morrow night. These documents to be delivered up against S.S. & Company's acceptance of our draft.’

On the 24th Mr Dymock again wrote— ‘The bill of lading per “Whitehead” came in just as I was leaving to catch my train to-night. I am going from home in the morning, but I left instructions for B/L to be sent you by forenoon post.’

On the 25th October Messrs Dymock wrote as follows—‘As we have not been able to get B/L per “Whitehead” completed in time for post, we will send you this per 4 p.m. train. We have been trying to get the weights per telephone this morning, but there seems to be great delay in getting Burntisland, and we have not succeeded.’

The bill of lading was accordingly sent by the 4 o'clock train. Messrs Dymock telegraphed to Mr Swan that it was despatched, and the latter sent a clerk to meet the train and get delivery of the parcel.

It appears from a letter sent along with the bill of lading, that owing to delay in getting the weights of the cargo, Messrs Dymock had resolved to send the bill, as they had received it, blank as regards tonnage, to the bank, and that a note of the tonnage, which they had filled into the bill, had been received just before sending it off.

Both Mr Dymock and Mr Swan say distinctly that the overdraft which was allowed on the 24th October would not have been asked or given except on the security of the bill of lading of the ‘White-head,’ which Messrs Dymock had promised on the 23rd to send to the bank.

Now, apart from a question in regard to the bill having been signed blank as to the weight, which I shall afterwards consider, I do not understand it to be disputed that, if Messrs Dymock when writing to the defenders on the 23rd October had asked to be allowed a further overdraft against the security of the bill of lading, and had undertaken to forward the bill whenever it was completed, the transaction could not have been challenged.

But the pursuers found upon the terms of Messrs Dymock's letter of the 23rd October, in which they say that the bill is to be sent ‘for forwarding as usual. The pursuers contend that as that was an express direction as to the purpose of sending the bill of lading, it excluded the idea that it was being sent to secure an overdraft to be made on the following day, and shows that the defenders did not grant the overdraft upon the security of the bill, but that, having subsequently obtained possession of the bill, they are now trying to retain it as a security notwithstanding the insolvency of their debtor.

Now, it seems to me that the terms of the letter are not inconsistent with the evidence of Mr Dymock and Mr Swan. In the first place, the course of dealing between Messrs Dymock and the bank must be kept in view. The bank were in the habit of treating a bill of lading sent to them to be forwarded to a consignee in exchange for an acceptance, as security upon which an overdraft would be allowed. Therefore for the Messrs Dymock to write that they were sending a bill of lading to be forwarded, was equivalent to saying that they were sending that which, according to the course of dealing, would be recognised as a security for advances. Then the account was on the 23rd overdrawn to the full amount, or nearly so, for which the bank held security, and the Messrs Dymock had been warned twice in the few days immediately preceding that no further overdrafts would be allowed unless they were secured. Therefore Messrs Dymock, when they passed cheques upon the bank on the 24th, must have done so upon the understanding that the bill of lading which they had promised to send was regarded by the bank as security.

Again, on the 23rd Messrs Dymock did send the bill of exchange and the policy of insurance. It is true that these documents were of no use as a security, or indeed for any purpose, without the bill of lading, but for that very reason I think that the fact that they were sent was of importance. If the only reason for which the bill of lading was to be sent was that it might be forwarded, there was no reason for sending the relative bill of exchange and policy before the bill of lading was ready. If, however, the intention was to give the bank a security against which an overdraft would be allowed, the sending of the other documents was an earnest or guarantee that the bill of lading would be forwarded whenever it was completed. Further, the fact that Messrs Dymock wrote to Mr Swan on the subject twice on the 23rd, once on the 24th, and twice on the 25th, points in the same direction. If the bill of lading was to be sent to the bank only for the purpose of forwarding, then it did not concern the bank when it was forwarded, or whether it was forwarded at all. That was a matter in which, ex hypothesi, Messrs Dymock alone were interested. Therefore all these letters to Mr Swan seem to me to show that Messrs Dymock regarded the delivery of the bill of lading to the bank as a matter in which the latter were directly interested. I am therefore of opinion that the correspondence is not inconsistent with the evidence of Dymock and Swan, but points in the same direction.

The question, therefore, comes to be whether the fact that the bill of lading did not actually come into possession of the bank until after the advances were made is sufficient for the pursuers. The law on the subject is settled by the cases of Moncrieff v. Union Bank, 14 D. 200; Stiven v. Scott, 9 Macph. 923, and Gourlay v. Mackie, 14 R. 403. These cases establish that when money is advanced on the faith of a specific security to be immediately granted, the Act of 1696 will not apply, although the security is not completed until after an interval of time.

If I am right in the view which I have taken of the evidence, I think that the conditions of the rule were fulfilled in the transaction in question. This was not a case of a promise to give security at a subsequent time, or if required. The promise to send the bill of lading was immediate

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and unconditional, and it was in fact sent the moment it was completed. I am therefore of opinion that the right of the bank to the bill of lading cannot be challenged on the ground that it was granted in security of a prior debt.

The pursuers further argued, if I rightly understood them, that the bank had no security, because a bill of lading blank in the quantity shipped was an incomplete and ineffectual document and not truly a bill of lading at all, and that Messrs Dymock were not entitled at their own hand afterwards to fill in the quantity.

Now, I am not prepared to say that in such circumstances as occurred here a bill of lading signed and delivered by the master, but blank as to tonnage, is an ineffectual document. The Messrs Dymock had chartered the whole ship to take a cargo of coals to Copenhagen. The bill of lading, as signed by the master, ran thus:—‘Shipped in good order and condition, by John S. Dymock, Smith, & Co., in and upon the good steamship called the “Whitehead,” whereof Brennan is the master for this present voyage, lying in port of Burntisland, and bound for Copenhagen, viz.:' (here follows a blank space for the tonnage) ‘of best Cowdenbeath coal.’ I am inclined to think that the holder of that bill of lading would have had a title to demand delivery of the cargo of coals, although, of course, he would not have the prima facie evidence of the amount of coal shipped, which would have been afforded if the tonnage clause had been filled up.

But, however that may be, the Messrs Dymock completed the bill by filling up the blank space when they received information as to the amount actually shipped, and the bill of lading so completed constituted, in my opinion, a perfectly good title to the cargo in the hands of an onerous holder.

I understand that there is no dispute that the amount advanced by the defenders was greater than the sum for which the cargo has been sold, and that therefore, if the view which I have taken of the case is sound, the defenders are entitled to absolvitor.”

The pursuers reclaimed, and argued—(1) They were entitled to stop and had stopped in transitu. The transit was not at an end until the cargo reached Copenhagen. The Lord Ordinary was with them on this point. He had rightly interpreted the series of previous decisions to which he had referred in his opinion. See also 1 Bell's Comm. (7th ed.) p. 219; Bell's Principles, sec. 1308; Scrutton on Charter-Parties (3rd ed.) p. 133. Schotsmans v. Lancashire and Yorkshire Railway Company, 1867, L.R. 2 Ch. Appeals 332. (2) The Lord Ordinary was wrong in holding that the right of stopping in transitu had been defeated by the indorsation to the bank of the bill of lading. The bill of lading was not a good security at all. The master had signed it while blank, and before the cargo was all on board— per Lord Shand in Grieve, Son, & Company v. Konig & Company, January 23, 1880, 7 R. 525; Sewell v. Burdick, 1881, L.R., 10 Ap. Cases 71. It was also invalid under the Act 1696, c. 5, because everything took place within 60 days of Dymock, Smith, & Company's bankruptcy. The bill of lading was given as a security for prior advances made the day before. The Lord Ordinary had sustained a hypothetical case which was not the same as the present. There was nothing to show— and the onus lay on the bank—that there was anything exceptional about the transaction. It was in the ordinary course of business. The bill of lading was sent as usual for collection. The pursuers therefore were entitled to cut down this attempted but illegal preference.

Argued for the defenders— The pursuers required to show not only that the stoppage took place before the transitus was at an end, but also that the bank were not onerous indorsees of a valid bill of lading before the right to stop was exercised. If they failed to establish both these points they could not get decree. (1) The Lord Ordinary was clearly right in holding that the bill of lading was not sent merely for collection oras a general security, but as security for an advance made the day before on the faith that the bill of lading would be immediately sent. A blank bill of lading could not settle the amount of the cargo, but it could form a good security over the cargo—see Mr Justice Willes in Gattorno v. Adams, 1862, 12 C.B., New Series, p. 567. Here the master trusted the shippers to insert the proper figure, and there was no suggestion that the quantity had not been correctly filled in. (2) But the Lord” Ordinary was wrong in holding that the transitus was not at an end. His Lordship's views could not be sustained without reversing Morton v. Abercromby, January 7, 1858, 20 D. 362, which was identical with the present case and not distinguishable as his Lordship thought. There were here two distinct and separate transits— the one from Cowdenbeath to Burntisland Quay, the other from Dymock, Smith, & Company at Burntisland to Schach, Steenberg, & Company at Copenhagen. The first transit was over at 3·30 p.m. on 25th October; the attempted stoppage did not take place until 7 p.m. on that day. The knowledge of the seller that the goods were going abroad had nothing to do with what was the real question, namely, what in the contract was the transitus? That was always a question of fact. The transitus here was to end at Burnt-island. The sellers made it a condition of the price being low that the coals should not be re-sold in this country, but the buyers might have stored them for months; in that case could it have been said the transitus was still going on? The buyers made their own arrangements as to shipment abroad without reference to the Cowdenbeath Coal Company— see 1 Bell's Comm. (7th ed.), pp. 232–234. In the following cases stoppage in transitu had been disallowed on the ground that the transitus was at an end— Dixon v. Baldwen, 1804, 5 East. 175; Meletopolo v. Ranking,

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1842, 6 Jurist 1095; Valpy v. Gibson, 1847, 4 C.B. 837, see Wilde, C.-J. pp. 862–865; Morton v. Abercromby ( supra); Kendal v. Marshall, Stevens, & Company, 1883, L.R., 11 QBD 356, in which ex parte Rosevear China Clay Company (infra) was distinguished; ex parte Miles, 1885, L.R., 15 QBD 39. In the following the stoppage had been allowed— Berndtson v. Strang, 1868, L.R., 3 Chan. Ap. 588; ex parte Rosevear China Clay Company, 1879, L.R., 11 Ch. Div. 560; Bethell v. Clark, 1888, L.R., 20 Q.B.D. 615; Lyons v. Hoffnung, 1890, L.R., 15 Ap. Cases 291. The present case fell under the first list of authorities, whereas the Lord Ordinary thought it was solved by the second.

At advising—