1816. The diano. The doctrine as to the right of stoppage in transi tu, cannot apply to this case. That right exists in St. Joze In- the single case of insolvency, and presupposes, not only that the property has passed to the consignee, but that the possession is in a third person in the transit to the consignee. It cannot, therefore, touch a case where the actual or constructive possession still remains in the shipper or his exclusive agents. In general, the rules of the prize court, as to the vesting of property, are the same with those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser. But the question still recurs, when is the contract executed? It is certainly competent for an agent abroad, who purchases in pursuance of orders, to vest the property in his principal immediately on the purchase. This is the case when he purchases exclusively on the credit of his principal, or makes an absolute appropriation and ƒ By the common law, the right of property in the thing sold is completely vested in the purchaser by the execution of the contract, subject to the equitable right of stoppage in transitu in case of insolvency, and where the bill of lading has not been, in the mean time, endorsed to a third person. But by the civil law, the right of property was not vested in the purchaser, unless the goods were paid for, or sold on a credit. Just. 1. 2. tit. 1. s. 41. Pothier Traité de Vente, No. 322. But this rule is not copied by the Napoleon Code, which, on the contrary, adopts a principle similar to that of the common law. Elle (la vente) est parfaite entre les parties, et la propriété est acquise de droit a l'egard du vendeur, des qu'on est convenu de la chose et du prix, quoique la chose n'ait pas encore été livrée ni le prix payé. Code Napoleon, 1. 3. tit. 6. c. 1. No. 1583. The French Commercial Code also subjects the goods sold to the right of stoppage in transitu, by the vendor, upon the same conditions with our own law. Code de Commerce, 1. 3. tit. 3. De la Revendication. The diano. designation of the property for his principal. But 1816. where a merchant abroad, in pursuance of orders, either sells his own goods, or purchases goods on St. Joze Inhis own credit, (and thereby, in reality, becomes the owner,) no property in the goods vests in his correspondent until he has done some notorious act to devest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such correspondent. Until that time he has in legal contemplation the exclusive property, as well as possession; and it is not a wrongful act in him to convert them to any use which he pleases. He is at liberty to contract upon any new engagements, or substitute any new conditions in relation to the shipment. These principles have been frequently recognised in prize causes heretofore decided in this court. In the present case, the delivery to the master was not for the use of Mr. Lizaur, but for the consignees, a house composed of the same per g In the Venus, at February term, 1814, on the claim of Messrs. Magee & Jones, Mr. Justice WASHINGTON, in delivering the opinion of the court, observed: "To effect a change of property, as between seller and buyer, it is essential that there should be a contract of sale agreed to by both parties, and if the thing agreed to be purchased is to be sent by the vendor to the vendee, it is necessary to the perfection of the contract that it should be delivered to the purchaser, or to his agent, which the master of a ship to many 1816. The diano. sons as the shippers, and acting as their agents. They, therefore, retained the constructive possession, St. Joze In- as well as right of property, in the shippers; and it is apparent from the letter, that the shippers meant to reserve to themselves and to their agents, in relation to the shipment, all those powers which ownership gives over property. It is material, also, in this view, that all the papers, respecting the shipment, were addressed to their own house, or to a house acting as their agents, and the claimants could have no knowledge or control of the shipment, unless by the consent of the consignees, under future arrangements to be dictated by them. In this view this case cannot be distinguished from that of Messrs. Kimmell and Alvers; and it steers wide of the distinction which Messrs. Wilkins' claim was sustained." The authorities also cited at the argument by the captors are exceedingly strong to the same effect. The Aurora' approaches very near to the present There the shipment, by the express agreement of the parties, was, in reality, going for the use, and by the order, of the purchaser, but consigned to other persons, who were to deliver them if they were satisfied for the payment. And Sir William Scott there quotes a case as having been lately decided, where goods sent by a merchant in Holland, to A., a person in America, by order, and for account, of B., with directions not to deliver them unless satisfaction should be given for the payment, were condemned as the property of the Dutch shippers. upon case. The Merrimack. February Term, 1814. i 4 Rob. 218. On the whole, the court are unanimously of opinion, that the goods included in this shipment were, during their transit, the property, and at the risk of the shippers, and, therefore, subject to condemnation. The claim of Mr. Lizaur must, therefore, be rejected. Sentence affirmed with costs. 1816. Renner and V. Marshall. (COMMON LAW.) RENNER & BUSSARD V. MARSHALL. The commencement of another suit for the same cause of action in the court of another state since the last continuance, cannot be pleaded in abatement of the original suit. If matter in abatement is pleaded puis darrein continuance, the judgment, if against the defendant, is peremptory. Where the action is brought for a sum certain, or which may be rendered certain by computation, judgment for the damages may be entered by the court without a writ of inquiry. ERROR to the circuit for the district of Columbia for Washington county. The defendant in error, at June term, 1813, declared against the plaintiffs in error in assumpsit, upon an inland bill of exchange drawn by one Rootes on Renner & Bussard, and accepted by them; to which declaration they pleaded non-assumpsit, and issue was thereupon joined, and the cause was continued to December term, 1813. At that term the plaintiffs in error appeared and 1816. Renner and V. pleaded, "that, after the last continuance of the plea aforesaid, to wit, the first Monday of June, in the year one thousand eight hundred and fourteen, from Marshall. which day the plea aforesaid was farther continued here until this day, to wit, the fourth Monday of December, in the year last aforesaid, and before this day, to wit, on the nineteenth day of October, in the year last aforesaid, before the superior court of chancery of the commonwealth of Virginia, &c., the plaintiff exhibited his certain bill of complaint against the defendants, &c.; and also against one Anthony Buck and one Miles Dowson, complaining and alleging in his said bill, that on the twelfth day of October, in the year one thousand eight hundred and twelve, Thomas R. Rootes drew his bill of exchange upon the defendants, &c. And the said defendants farther say, that the plea aforesaid, for which the said defendants, by the said plaintiff in the said bill of complaint mentioned, are impleaded in the said superior court of chancery as aforesaid, is for the same identical matter and cause of action, of, and for which the said plaintiff hath now impleaded the said defendants, Renner & Bussard," &c. To which the plaintiff replied the prior pendency of the suit in the circuit court; and the defendants rejoined in substance the same matters as contained in their plea, whereupon the plaintiff demurred specially. Upon which the court rendered judgment," that the plea of the said Daniel Renner and Daniel Bussard by them above pleaded, to the writ and declaration of the said Horace Marshall, and the plea of the said Daniel Renner and Daniel Bussard, by way |