6 In Newhall v. Vargas, 15 Me. 314, 321, Mr. Justice Shepley says, "The position that it does not proceed upon the ground of rescinding the contract also shows that the principle upon which it does proceed is that of restoring the party to his lien, hy placing him in the same position as if he had never parted with the possession. In Hodgson v. Loy, Kenyon said, 'that it did not proceed, as the plaintiff's counsel supposed, on the ground of rescinding the contract.' In Tucker v. Humphrey, 4 Bing. 516, Park, J., says: ' Not proceeding at all on the ground of the contract being rescinded by the insolvency or bankruptcy of the consignee of the goods, but as an equitable right adopted for the purpose of substantial justice.' In Bloxam v, Sanders, 4 B. & C. 941, Bayley, J., speaking of the consignee, says, ' he has not an indefeasible right to the possession, and his insolvency without payment of the price defeats that right;' that is, it defeats the right to the possession, not to the property. The contract is regarded as existing after the exercise of the right of stoppage, and the vendee or his assigns may recover the goods upon paying the amount due. The relations of vendor and vendee are in this respect the same as when the vendor has never parted with the possession; and this tends to prove the principle to be as before stated. It is doubtless true that parties may so conduct as to rescind the contract where the right of stoppage is exercised, as well as where it is not. And in some of the cases in the books it appears to have been the intention of the vendors to rescind. And there are expressions of the judges to be accounted for only from the belief that such was the intention of the parties in the case then under consideration, or from a want of a clear perception of the principle which allowed the exercise of such a right. It would not be difficult to accumulate proofs that the principle upon which the doctrine rests is as before stated, but an apology is rather due for what has been offered.
"Proceeding to carry out these principles, the parties are to be placed in the same condition, as nearly as may be, in which they would have been if the vendor had never parted with the possession of the goods. And if he would repossess himself of them, he must relieve them of all charges and burdens rightfully and necessarily accruing after he parted with the possession; for the vendor cannot be allowed, by his attempt to regain possession, to put the vendee in a worse position than he would have been had the possession remained with the vendor. And this requires him to pay the freight and intervening charges. This is in precise accordance with the rule in the Napoleon Code, b. 3, c. 11, t. 3, a. 579. And in note 197 to the translation, title 3, the learned translator says, 'thus the doctrine of revendication in mercantile cases, first borrowed in part by the English law from the French system of jurisprudence, has been modelled in France to the shape, and reduced to the extent, that it had received in England;' thus clearly indicating that such was understood to be the doctrine in England. And Mr. Justice Story, in note (f), 1 Wheat. 212, speaking of stoppage in transitu, says the Napoleon Code 'adopts a principle similar to that of the common law,' and that it ' subjects the goods sold to the right of stoppage in transitu by the vendor upon the same conditions with our own law.' Upon these principies and authorities the representatives of the intestate are entitled to recover the freight and charges upon that portion of the cargo reclaimed. "If the vendor is adjudged to pay freight, he claims to set off against it a debt due from the intestate to him on the purchase of a former cargo shipped by another vessel. It is not necessary to cite authorities to show that the owners of a vessel have a hen on the cargo for freight. The well-known rule in mercantile law, that the ship is bound to the merchandise, and the merchandise to the ship, is admitted here. This right is not destroyed, if the property be taken from the possession of the owners in invitum, or by operation of law. It is true that this principle does not apply where the owner of the vessel is carrying his own goods: but when the vendor claims to repossess himself of the goods by virtue of his original title, it is not for him at the same time to declare the title to be in the vendee for the purpose of avoiding the vendee's lien for the freight; who may well claim to retain them until he is placed in a position as favorable as he would have been if the goods had never been delivered. And as the whole rights of the consignor depend upon an extension of his lien after he has parted with the possession, it is not for him to deny to the consignee the equitable right to set up as against him the same hen which he would have by law if the goods were transported for another. When the right of stoppage is exercised, the goods become in fact transported, not for the benefit of the vendee, but the vendor. In this mode the just rights of the parties may be secured to them, notwithstanding what has already taken place. And as it is the only way in which it can bo done, the representatives of the consignee have a right to expect that the court will exact of the consignor, who asserts what is sometimes denominated an equitable right, an adherence to the rule that he who asks equity shall do equity."