(after stating the case). Several objections were made to the testimony, all of which we think were *399properly overruled. That which relates to the witness speaking of the contents and effect of “ Exhibit A,” would have been tenable, but as the exhibit was subsequently introduced, and was entirely consistent with the witness’ statement, the defendant was in no wise prejudiced, and the exception is therefore without merit.
It is proper to notice that the third instruction asked by the defendant was, that if the jury should believe a certain state of facts, “ the plaintiffs are not entitled to recover.”
The same words are used by the Court in one of the instructions given. Such language is not pertinent to any of the issues submitted.
These present questions of fact, or mixed questions of law and fact, and upon the findings, it is for the Court to say whether or not the plaintiffs are entitled to recover. Su'ch instructions were proper upon the general issues submitted, under the old practice, but are confusing when applied to our present system.
Tt is true that in the present case no harm has resulted, as we can dispose of the appeal upon the testimony of the defendant; but we have adverted to this improper manner of asking for and giving instructions, in order that the loose practice in this respect may be discontinued. We can very readily conceive how juries may be perplexed and misled by such general charges when they come to pass upon the specific issues submitted to them, and how new trials may be thus made necessary, which could otherwise have been easily avoided.
The plaintiff’s right is based upon this alleged right to stop the property in transitu. This right “ arises solely upon the insolvency of the buyer, and is based upon the plain reason of justice and equity, that one man’s goods shall not be applied to the payment of another man’s debts. If, there*400fore, after the vendor has delivered the goods out of his own possession, and put them in the hands of a carrier for delivery to the buyer (which, as we have seen * * is such a constructive delivery as divests the vendor’s lien), he discovers that the buyer is insolvent, he may retake the goods if he can, before they reach the buyer’s possession, and thus avoid having his property applied to paying debts due by the buyer to other people.” * * It is “ highly favored on account of its intrinsic justice.” Benjamin on Sales, 2 vol., secs. 1229-1231. It “ is but an equitable extension or enlargement ot the vendor’s common law lien for the price, and not an independent or distinct right.” Note to sec. 1229, supra. “ It is quite immaterial that the insolvency existed at the time of the sale, provided the vendor be ignorant of the fact at the time.” Loeb v. Peters, 63 Ala., 243, and a number of cases cited in note to sec. 1244 Benj. on Sales, supra.
These last authorities fully sustain his Honor in refusing the third instruction asked by the defendant. The mere fact that Robertson & Rankin, the consignees, were insolvent at the time of the sale, could not defeat the lien of the plaintiffs, unless they knew of such insolvency.
The charge, as given, was correct in this particular, the jury having found, substantially, that the plaintiffs were, nothing further appearing, entitled to avail themselves of the right of stoppage in transitu, and that they exercised that right through their agent, Mr. Puller. We will now consider the several defences made by the defendant. No agreement or usage having been shown to the contrary, the right of stoppage in transitu continued until the safe was actually or constructively delivered to the consignee. Benjamin on Sales, vol. 2, sec. 1269; Hause v. Judson, 29 Am. Dec., 377, and notes.
1. The first defence, though not seriously pressed upon the argument, is, that the defendant acquired title by reason *401of the sale under the attachment proceedings instituted by it against the consignee for arrearages of freight due on lumber.
“ The vendor’s right of stoppage in transitu is paramount to all liens against the purchaser” (Hilliard on Sales, 289; Blackman v. Pearce, 23 Cal., 508), “ even to a lien in. favor of the carrier, existing by usage, for a general balance due him from the consignee.” Oppenheim v. Russell, 3 Bos. & Pul., 42. * * *
“ An attachment or execution against the vendee does not preclude the stoppage^ transitu, for this is not a taking possession by the vendee’s authority, the proceeding being in invitvm." Note to Hause v. Judson, supra, where a large number of authorities, sustaining the text, is collected. These-authorities conclusively settle that the defence under the attachment proceedings cannot be maintained.
2. The second defence rests upon the following clause of the bill of lading: “ The several carriers shall have a lien upon the goods (shipped) for all arrearages of freight and charges due by the same owners or consignees on other goods.”
The counsel for the defendant could give us no authority in support of this defence, and none, we think, can be found, to the effect that such a stipulation should be construed to take away this “ highly favored ” and most important right of the vendor to preserve his lien, in order that his goods may “ not be applied to the payment of another man’s-debts,” much less to those of his agent, to whom he delivers them for carriage. Shippers would hardly contemplate that in accepting such a bill of lading the well established and cherished right of stoppage in transitu was to be made dependent upon whether a distant consignee was indebted to the carrier, and the commercial world would doubtless be surprised, if it were understood that whenever such a stipulation was imposed upon consignors, they were in effect *402yielding up their lien for the purchase money and substantially pledging their goods for the payment' of an existing indebtedness due their agent, the carrier, by a possible insolvent vendee.
If such is the proper construction, we can well appreciate the language of Lord Alvanly, in Oppenheim v. Russell, 3 Bos. and Pul., 42, when he said that he hoped it would • “never be established that common carriers, w?ho are bound to take all goods to be carried, for a reasonable price tendered to them, may impose such a condition upon persons sending goods by them.”
He doubts whether an express agreement between the carrier and the consignor would be binding, and Best, J., in Wright v. Snell, 5 B. and Aid., 350, in speaking generally of such contracts, said he cjoubted “ whether a carrier could make , so unjust a stipulation.” Chancellor Kent, in the second volume of his Commentaries, remarks that “ it was again stated as a questionable point in Wright v. Snell, whether such a general lien pould exist between the owner of the goods and the carrier, and the claim was intimated to be unjust. It mqst, therefore, be considered a point still remaining to be settled by judicial decision.” It is unnecessary} however, for us to say whether such a condition-or agreement would be reasonable and binding, as it seems very .clear that the present case is not susceptible of the construction contended for, and that it is entirely subordinate to the right of stoppage in transitu. The exercise of this right revested the right of possession in the plaintiffs, and they, having tendered all they owed the defendant, no interest was ever acquired by the vendee to which the claim of the defendant could attach.
3. The third and most plausible defence is, that, according to the testimony of the agent Holt, there was a constructive delivery to the consignee, and that this defeated the rights of the plaintiffs. The doctrine is well settled that *403 “ where goods are placed in the possession of a carrier to be carried for a vendor, to be delivered to the purchaser, the transitus is not at an end until the carrier, by agreement between himself and the consignee, undertakes to hold the goods for the consignee, not as carrier, but as his agent, and the same principle will apply to a warehouseman or a wharf-inger.” Benjamin on Sales, supra. Was there any such agreement in this case ? The most that can be said is that the consignee offered to pledge the safe to the defendant for the freight already due on lumber. There was no actual change of possession. The safe was in the defendant’s warehouse, and Holt, the agent, and the consignee, were both leaning upon it. The consignee, placing his hands on it, said: “ I place this safe in your hands as security for what I owe.” There was no response whatever by Holt. He simply states that he “ held the safe till some little time after-wards,” when he heard that the consignee had run away, and that he sued out the attachment proceedings mentioned in the ansv7er.
The majority of us are doubtful whether there was reasonably sufficient evidence to’be submitted to the jury upon the question of the acceptance of the offer, and of delivery.
There being no actual deliverjq a constructive one can only be effected by a valid agreement, on the part, of the common carrier, to hold for the consignee.
Mr. Benjamin, from whom we have so largely quoted, says, that “ the existence of the carrier’s lien for unpaid freight raises a strong presumption that the carrier continues to hold the goods as carrier, and not as warehouseman ; and in order to overcome this presumption” (the italics are ours) “ there must be proof of some arrangement or agreement between the buyer and the carrier, whereby the latter, while retaining his lien, becomes the agent of the buyer to keep the goods for him.”
*404But, conceding that the acquiescence of Holt was some evidence of the acceptance of the offer, would this in law amount to such a delivery as would defeat the plaintiff’s right ?
Passing by the question, as to whether the defendant bailee was not estopped to set up such a transaction in favor of itself, and against its principal (2 Wait’s Act. and Def., 57)," and also the fact that the alleged agreement was not to hold as agent of the vendee, but, for itself, we are of the opinion that what transpired between the defendant’s agent and the-vendee did not alter in the slightest degree the relation in which they stood to each other.
It will be borne in mind that there was no actual delivery ; that the defendant had a lien for the freight due on the property, and, under the stipulation in the bill of lading, it had, as against the consignee, also a lien for the arrearages of freight due by him. There was no new consideratiori, and the proposition of the assignee, and its alleged acceptance by the defendant, left them in precisely the same position as before.
It amounted virtually to the defendant saying, “ if you will pay the freight and arrearages, I will deliver you the safe.” This was, as we have seen, the effect of the bill of lading. In the leading case upon this subject, Whitehead v. Anderson, 9 M. and W., 517, cited with approval by Benjamin, supra, the agent of the consignee went on board of the ship, when she arrived in port, and told the captain that he had come to take possession of the cargo. He went into the cabin, into which the ends of the timber projected, and saw and touched the timber. When the agent first stated that he came to take possession, the captain made no reply, but subsequently, at the same interview, told him that he would deliver him the cargo when he was satisfied about his freight. They went ashore together, and shortly after, an agent of the consignor served a notice of stoppage in transitu upon the mate, who had charge of the cargo: Held, “that, *405under these circumstances, there was no actual possession taken of the goods by the consignees, and that as thebe was no contract by the captain to hold the goods, as their agent, the circumstances did not amount to a constructive possession of the goods by them. There is no proof of any such contract. A promise by the captain to the agent of the consignees is stated, but it is no more than a promise, without a new consideration, to fulfill the original contract, and deliver in due course to the consignees, on payment of freight, which leaves the captain in the some situation as before. After the agreement, he remained a mere agent for expediting the cargo to its original destination.”
This, it seems to us, is conclusive of our case. Here there was no new consideration whatever moving from the vendee, nor was there any definite understanding that the defendant was to forbear pressing the vague proceedings suggested by him. I Addison on Contracts, 1 vol., 2, note.
There was, therefore, no new contract, and the defendant held the safe in the same character as he did before, when, as we have shown, it was subject to the paramount claim of the plaintiffs. We have been able to find no case where a pledge of this kind has been asserted, but we have observed that all the cases we have examined lay down the rule that constructive delivery is only made by the carrier, either agreeing expressly, or by implication, to hold as the agent of the consignee.
While the amount involved in this suit is small, we have thought it our duty, in view of the importance of the questions of law presented, to carefully examine many of the multitude of cases upon the subject, and our conclusion is that his Honor was correct in telling the jury that what transpired between Holt and Robertson (one of the consignees) did not amount to a delivery, and was not sufficient to deprive the plaintiffs of any rights they might acquire in respect to the safe.
No error. Affirmed.