It has been made a question, how far auction sales were within the provisions of the statute of frauds; but it is now understood to be settled that they are within the statute, and that the auctioneer is the agent of both parties, and lawfully authorized by the purchaser, either of lands or goods, to sign the contract of sale for him as the highest bidder. (a) The writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid, and knocking down the hammer, is a sufficient signing of the contract *540 within the statute of frauds, so as to bind the purchaser. Entering the name of the buyer by the auctioneer, in his book, is just the same thing as if the buyer had written his own name. The purchaser who bids, and announces his bid to the auctioneer, gives the auctioneer authority to write down his name, and the authority to the agent need not be in writing. There is no difference in the construction of the fourth and seventeenth sections of the statute of frauds of 29 Car. II., c. 2, (b) as to what is a sufficient signing of the contract by the party to be charged.1 The English law, as originally suggested in the case of Simon v. Motivos, (c) has been repeatedly recognized and considered as the established doctrine in respect to auction sales of lands and chattels by the English and American courts. (d)

Louisiana is strongly in favor of the doctrine of Lord Mansfield. Baham v. Bach, 13 Louisiana Rep. 287. Mr. Justice Ware, in his dissenting and very learned opinion in the above case of Veazie v. Williams, pp. 637, 638, approves of the original doctrine of the K. B.

(a) Whether the auctioneer be the agent of both parties, depends upon the facts of the particular case, and he is not so, as of course, in all cases. Bartlett v. Punnell, 4 Adolph. & Ellis, 792.

(b) Reenacted, N. Y. Revised Statutes, vol. ii. p. 135, sec. 2. Ibid. vol. ii. p. 136.

sec. 3.

(c) 3 Burr. Rep. 1921. S. C. 1 Blacks. Rep. 599.

(d) Hinde v. Whitehouse, 7 East's Rep. 558. Heath, J., in 1 H. Blacks. Rep. 85.

sale, that one should bid for all, will not void the sale. Switzer v. Skiles, 3 Gilm. R. 529. National Fire Insurance Co. v. Loomis, 11 Paige R. 431.

1 Under the New York statute of frauds, (2 R. S. p. 135, sec. 8, 9,) it is necessary, on a sale of land by an auctioneer, that he should subscribe the contract as agent for his principal. Champlin v. Parish, 11 Paige R. 405. Id. 431. Pinckney v. Hagadorn, 1 Duer R. 89. Morton v. Dean, 13 Met. R. 385.

XI. Of the vendor's right of stoppage in transitu.

This right, which has already been alluded to, requires a more particular discussion. It is the right which the vendor, when he sells goods on credit to another, has of resuming the possession of the goods, while they are in the hands of a carrier or middleman, in their transit to the consignee or vendee, and before they arrive into his actual possession, or to the destination which he has appointed for them, on his becoming bankrupt or insolvent.' The right exists only as between the vendor and vendee; and as the property is vested in the vendee by the contract of *541 sale, it can be revested in the vendor during its transitus to the vendee, under the existence of the above circum

stances. (a)

The right is very analogous to the common-law right of lien. The latter right enables the vendor to detain goods before he has relinquished the possession of them; and this right of stoppage enables him to resume them before the vendee has acquired possession, and to retain them until the price be paid or tendered. If the price be paid or tendered, he cannot stop or retain the

Emmerson v. Heelis, Taunt. Rep. 38. White v. Proctor, 4 ibid. 209. Kemeys v. Proctor, 3 Ves. & Bea. 57. Kenworthy v. Schofield, 2 Barnew. & Cress. 945. M'Comb v. Wright, 4 Johns. Ch. Rep. 659. Cleaves v. Foss, 4 Greenleaf's Rep. 1. Alna v. Plummer, 4 ibid. 258. First Baptist Church of Ithaca v. Bigelow, 16 Wendell, 28. The N. Y. Revised Statutes, vol. i, 3d edit. 649, requires, that when goods are struck off at auction, and there be not an immediate payment of the price, or delivery of the goods, it shall be the duty of the auctioneer to enter in a sale-book a memorandum of the sale, specifying the nature, quantity, and price of the goods, the terms of sale, the names of the purchasers, and of the person on whose account the sale is made. And by the R. S. 3d edit. vol. ii. 195, an entry in the auctioneer's salebook, specifying the nature and price of the property sold, the terms of the sale, and the names of the parties, is a memorandum or note within the statute of frauds. The memorandum in the auctioneer's sale-book must be made at the time and place of sale, and the entry of the name of the agent or consignee who has lawful authority to sell, is entering the name of the person on whose account the sale is made, within the stat ute. Hicks v. Whitmore, 12 Wendell's Rep. 548.

(a) Mason v. Lickbarrow, 1 H. Blacks. Rep. 357. Hodgson v. Loy, 7 Term Rep. 440. Bohtlingk v. Inglis, 3 East's Rep. 381. Burghall v. Howard, 1 H. Blacks. Rep. 365, n. Oppenheim v. Russell, 3 Bos. & Pull. 44.

1 It seems it is not confined to cases of the insolvency of the vendee. The discovery of the falseness of representations has been held sufficient. Fitzsimmons v. Joslin, 21 Verm. R. 129.

goods for money due on other accounts. The right of stoppage does not proceed upon the ground of rescinding the contract, but as a case of equitable lien. (a) It assumes its existence and continuance; and, as a consequence of that principle, the vendee, or his assignees, may recover the goods, on payment of the price; and the vendor may sue for and recover the price, notwithstanding he had actually stopped the goods in transitu, provided he be ready to deliver them upon payment. (b) If he has been paid in part, he may stop the goods for the balance due him, and the part payment only diminishes the lien pro tanto on the goods detained. (c) There must be actual payment of the whole price, before the right to stop in transitu, in case of failure of the vendee, ceases. Though a bill of exchange has been received by the vendor for the price, and indorsed over by him to a third person, even that will not take away the right; and if the bill be proved under a commission of bankruptcy against the vendee, it will only be considered a payment to the extent of the dividend. (d) The right to stop in transitu is paramount to any lien of the carrier for a general balance between him and the consignee; but the lien of the carrier or wharfinger in the particular case is preferred. (e) The right came from 542 the courts of equity, and was first established in Wiseman v. Vandeputt, (f) and its apparent equity recommended the

(a) Lord Kenyon, in Hodgson v. Loy, 7 Term Rep. 445. It is said to be a question still undecided, whether the effect of stoppage in transitu be to rescind the contract of sale, or only to replace the vendor in the position he occupied before parting with the possession, and to hold the goods till the price be paid. See Wentworth v. Outhwaite, 10 Meeson & Welsby, 436.1

(b) Kymer v. Suwercropp, 1 Campb. Rep. 109.

(c) Hodgson v. Loy, 7 Term Rep. 440. Feise v. Wray, 3 East's Rep. 93. Newhall v. Vargas, 13 Maine Rep. 93.

(d) Feise v. Wray, 3 East's Rep. 93.

(e) Oppenheim v. Russell, 3 B. & Puller, 42. Morley v. Hay, 3 M. & Ryland,

396.

(f) 2 Vern. Rep. 203. See also Snee v. Prescott, 1 Atk. Rep. 245. D'Aquila v. Lambert, Amb. Rep. 399, to the same point, of the early establishment of the doctrine in equity.

1 The latter view is taken in Rowley v. Bigelow, 12 Pick. 307. Jordan v. James, 5 Oh. 88. Newhall v. Vargas, 15 Me. 314. Rogers v. Thomas, 20 Conn. 66. Chandler v. Fulton, 10 Tex. 2.

adoption of it in the courts of law as a legal right. It would be very unreasonable to allow the goods of the vendor to be appropriated to the payment of other creditors of the vendee, who fails before payment, and before the goods have actually reached him. The right has accordingly been greatly favored and encouraged, and many distinctions made relative to its continuance and termination; and yet it is now declared, that a court of equity, from whence the right originated, has no jurisdiction to interfere and support it by process of injunction. Lord Eldon said, there was no instance of stopping in transitu by a bill in equity. (a) The English law on the subject of this right, and the class of cases by which it is asserted and established, have been very generally recognized and adopted in our American courts. (b)

(1.) Of the persons entitled to exercise this right.

The right extends to every case in which the consignor is substantially the vendor; and it does not extend to a mere surety for the price, nor to any person who does not stand in the character of vendor or consignor, and rest his claim on a proprietor's right. (c) As between principal and factor the right does not exist; but a factor or agent who purchases goods for his principal, and makes himself liable to the original vendor, is so * 543 far considered in the light of a vendor, as to be entitled to stop the goods. (d) So a principal who consigns goods to his factor upon credit, is entitled to stop them if 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. (e)' The

(a) Goodhart v. Lowe, 2 Jac. & Walk. 349.

*

(b) Ludlows v. Bowne & Eddy, 1 Johns. Rep. 16. Parker v. M'Iver, 1 Desauss. 281. Stubbs v. Lund, 7 Mass. Rep. 453. The St. Joze Indiano, 1 Wheaton, 212. Wood v. Roach, 2 Dall. Rep. 180. Walter v. Ross, 2 Wash. Cir. Rep. 283. Howatt v. Davis and C. 5 Munf. Rep. 34.

(c) Siffken v. Wray, 6 East's Rep. 371. (d) D'Aquila v. Lambert, Amb. Rep. 399. (e) Kinloch v. Craig, 3 Term Rep. 119. Fenton v. Pearson, 15 ibid. 419.

Feise v. Wray, 3 East's Rep. 93. Newsom v. Thornton, 6 East's Rep. 17.

1 If a demand of the goods be made by an unauthorized person, though otherwise it be sufficient, and before the act is ratified by the vendor, the goods come to the possession of

vendor's right is so strongly maintained, that while the goods are on the transit, and the insolvency of the vendee occurs, the vendor may take them by any means not criminal. (a) The validity of the right depends entirely on the bankruptcy or insolvency of the vendee. (b) It is not requisite that he should obtain actual possession 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 buyer is not of itself tantamount to a stoppage in transitu. (c) 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 endeavors to get possession, is equivalent to an actual stoppage of the goods. (d)2

(2.) Of matters which allow or defeat the right.

The transitus of the goods, and consequently the right of stop

(a) Lord Hardwicke, in Snee v. Prescott, 1 Atk. Rep. 245.

(b) The Constantia, 6 Rob. Adm. Rep. 321. The consignor having made the consignment, has no right to vary it, except in the sole case of insolvency. S. C. Abbott on Shipping, 5th Am. edit. Boston, 1846, pp. 621, 622.

(c) Haswell v. Hunt, cited in 5 Term Rep. 231. v. Pettit, 3 Bos. & Pull. 471.

Ellis v. Hunt, 3 ibid. 464. Scott

Northey & Lewis v. Field, 2 Esp.

(d) Walker v. Woodbridge, Cooke's B. L. 494. Rep. 613. Mills v. Ball, 2 Bos. & Pull. 457. Litt v. Cowley, 7 Taunt. Rep. 169. Newhall v. Vargas, 13 Maine Rep. 93. Notice to the carrier on the part of the vendor or his authorized agent is sufficient, unless the goods have in the mean time arrived to the actual or constructive possession of the vendee. The notice is to be given to the person who has the immediate custody of the goods; and if a servant has the custody of the goods, and notice be given to his principal, it must be in time to enable him, with reasonable diligence, to prevent a delivery to the consignee; for if the vendee takes the goods from the carrier before they have arrived at their destination, with or without his consent, the transit is at an end. Whitehead v. Anderson, 9 Meeson & Welsby, 518.

the vendee. a ratification by the vendor will not give the demand validity as a stoppage in transitu. Bird v. Brown, Law Journ. Rep. Ex. p. 154, April, 1850.

In Rogers v. Thomas, 20 Conn. 53, it was held, that the insolvency must take place after the sale, in order to give the right of stoppage in transitu. It was also held that the insolvency must be evinced by some overt act, and not consist merely in a general inability to pay one's debts. See, however, on this last point, Chandler v. Fulton, 10 Tex. 2. Secomb v. Nute, 14 B. Mon. 326. Lee v. Kilburn, 3 Gray, 594.

2 Bird v. Brown, supra.

8 It seems that a demand of the vendee before the right of stoppage is determined is not sufficient; it should be of the carrier or middle-man. Mottram v. Heyer, 5 Denio's R. 629.