$59. from the principal debtor and that therefore the solemnities in discussion here are of no importance with reference to the obligation against the drawee (or, as it may be in some bills, the maker), and can consequently have no connection with the law of his domicile." * "The weight of the second argument is lessened by the consideration, that the form, the place, and the time appropriate for taking a protest are ruled by the law of the land where this protest is to be taken (and so, as a general rule, by the law of the place of payment). "It follows from the fact that a protest upon a bill is a public instrument, and that this instrument obtains faith with the public by being executed by some official or notary under the rules of his own law exclusively, as the rule 'locus regit actum' requires, that the form of the protest must be determined by the law of the place where it is taken. As the protest shows that payment has been demanded at the proper place from the principal obligant,—that is, the acceptor, or in certain circumstances the maker, of a bill,-it follows that the law of the place where the protest must be made, determines the particular locality where it is to be made. But that law, by which parties intended that payment should be regulated, is the only law that can determine whether application for payment was made to the principal debtor opportuno loco. Lastly, the period within which a protest must be taken is dependent upon the law recognised at the place where it is taken, because the principal debtor undertakes his obligation, and the other obligants intend that he shall undertake the obligation only in conformity with his own By place" is meant here the particular locality, i. e. the dwellinghouse or place of business of the debtor. . law, and the protest is meant to supply evidence that he has not fulfilled his obligation or has failed to undertake it." * XI.-Stoppage in transitu. transitu. § 60. If goods or merchandise have been Stoppage in sold and delivered and not been fully paid for, the vendor is entitled, on failure of the vendee to reclaim the same under certain regulations as stipulated in the respective lex mercatoria. This revendication in matter of commerce is termed stoppage in transitu. Regulations concerning revendication are generally based on the following principles. 1o. For the exercising of the right of revendication, it is requisite that the goods or merchandise, unmixed with others, be identically the same which have been sold and delivered; this is termed "in naturâ." Proofs of the identity are often admitted even if the goods should be unpacked, repacked or diminished. 2°. Merchandise, sold, either on a fixed term or not, can be reclaimed while it is still on its way, whether whether by land or water, or when it exists in naturâ" in the hands of the insolvent vendee or in the custody of a third party who keeps the merchandise for him. 66 In both cases the reclaim can only be effected within a certain space of time, as stipulated by the respective lex mercatoria, from the day on which the merchandise has been stored under the insolvent vendee, or the third party. 3°. If part of the price of the goods has been paid by the vendee, the vendor, on reclaiming the whole of them, is obliged to return to the * VON BAR. Das Intern. Private und Strafrecht. Translation of G. R. Gillespie, page 346 et seq. estate the money he has already received on account. 4°. Where only a part of the merchandise sold is found in the estate, the money to be returned by the vendor shall be according to the proportion which the amount of goods recovered bears to the total amount sold. 5°. The vendor who recovers his merchandise, is obliged to indemnify the insolvent estate of the vendee for all that has already been paid or is due, for freight, commission, insurance, general average, and whatever else may have been expended for the preservation of the merchandise. 6°. Where the vendee has acccepted a bill of exchange or other commercial paper, for the full amount of the merchandise sold and delivered, no reclaim takes place. Where accepted bills cover only part of the amount due, the reclaim can take place, provided security be given to the insolvent buyer's estate, for what may be claimed from it on account of such acceptance. 7°. If the merchandise has been bonâ fide taken by a third party as security for a loan, the vendor still has the right to reclaim it, but is bound to repay to the lender the amount lent thereon, together with the interest and charges due. 8°. The reclaim of the goods becomes void, when they have been bona fide bought by a third party, on invoice and on bills of lading or carriagenotes, during the voyage. The original vendor is nevertheless entitled, in that case, to recover the purchase-money from the buyer to the amount due to him, as long as this has not been paid; and he is privileged for that amount, which may not be included in the insolvent's estate. This may also be applicable in case the goods, -after having been in the possession of the insolvent debtor or of some one on his behalf.have, by regular purchase and delivery, become the bona fide property of another party. 9°. The managers of an insolvent estate are at liberty to retain the reclaimed merchandise for the estate, provided they pay to the vendor the price, which he had agreed on with the insolvent vendee. 10°. As long as goods or merchandise, consigned on commission, remain in naturâ in the custody of the insolvent agent, or of a third party who possesses or keeps the same for him, they can be reclaimed by the consignor under the liability noted in sub-section 5°. The same right of reclaim holds good as to the purchase-money of goods, consigned on commission, where these have been sold and delivered by the agent. The consignor may reclaim as much of the purchase-money as has not been paid before the failure of the agent, even if the agent should have charged for his guarantee of the buyer, or under the usual denomination of" del credere." 11°. In case the consigned goods have been, bonâ fide, taken by a third party, as security for a loan, sub-section 7°. is applicable. 12°. If in an insolvent estate there be found bills of exchange not yet due, or due and not yet paid, or commercial or other papers, placed in the hands of the insolvent, either with orders only to procure payment thereof and hold the amount at the disposal of the sender, to effect payments specially indicated therewith, or designedly intended to cover bills of exchange drawn on and accepted by the insolvent or notes made Sir Robert Stoppage in payable at his domicile; then all such bills of exchange, commercial or other papers, can be reclaimed as long as they exist, in naturâ, in the hands of the insolvent or of a third person who holds or keeps them for him. All this is, however, without prejudice to the right of the estate, to require security in return for what can be claimed from it, in consequence of the insolvent's acceptances. 13°. In the absence also of the appropriation or acceptance, mentioned in sub-section 12°., bills of exchange, commercial or other papers, remitted to the insolvent, can equally be reclaimed, even if the same should be brought in account-current, provided the sender has not, at the time of remitting or since, been indebted to the insolvent for any sum whatever, the charges on the remittances excepted. 14°. In cases other than failure, any merchandise sold without term of payment, and unpaid, can be reclaimed in accordance with rules laid down in the respective Civil Law, with regard to rescinding of contracts of sale. The faculty of reclaiming such merchandise. is defeated when the same, after having been in possession of the original buyer or of some one on his behalf, has been, bona fide, sold and delivered to a third party. If, however, the purchase-money has not been paid by such third party, the original vendor can claim the amount of his bill or invoice out of the same, provided this be done by him within the term fixed by the respective lex mercatoria (usually 30 days) after the original delivery. With regard to the right of stoppage in transitu, Sir Robert Phillimore makes the following statements. |