as to Potter's solvency, and to the effect that he was solvent. But learned of his insolvency through Mr. D. W. Crowley, who was authorized to collect the bill from said Potter." And this was all the evidence upon the subject of Potter's insolvency.

Charles Krug, of the firm of Speith & Krug, testified that he saw Potter in June, 1883; that he was indebted to Speith & Krug, and said he had goods coming on the railroad, and asked Speith & Krug to take charge of them when they arrived. The goods were in the possession of Speith & Krug, and they were marked and consigned to Mr. Potter at Poney. "We received the goods on the thirtieth of June, upon the terms that we were to receive and hold them to let him know when

the goods came. We were to pay the freight, and he said he would pay us for it, and should let him know and he would tell us when to ship them. He came here at the time the goods arrived. I told him that the goods were in our warehouse. The goods were shipped in Potter's name, and we put them in our warehouse. Potter was there then. We paid, for Potter, all the charges on the goods for freight to the railroad company and Sebree, Ferris, & White. The railroad company and Sebree, Ferris, & White held the goods for charges. We paid the charges for freight of the railroad company and Sebree, Ferris, & White, to this place, from St. Joseph, Missouri (the railroad freight was from St. Joseph to Dillon), to Bozeman. It was forty to fifty dollars. We held our lien on the goods for the freight and charges. We did not agree to take Potter for this payment, but to hold the goods till we got our pay for freight.

"Potter asked us whether we would receive the goods, and we went together to Sebree, Ferris, & White, and he told them to deliver the goods to us, and we (Speith & Krug), paid the freight and charges for them and took possession when they came, and held them for Potter, to be sent to him whenever he would order them. He owed us a small bill, and we held the goods as a pledge for the freight and this small bill. We are not warehousemen, but are engaged in the business of brewing and selling beer.

"Potter told us to receive the goods for him, and pay the freight, and let him know about it, and he would pay us for the freight, and that we should then send the goods to him. Potter said he would pay us the freight bill before he took the goods away. This was when we went down to the office of Sebree, Ferris, & White."

In the case of Wetzell v. Power, 5 Mont. 217, 1 West Coast Rep. 214, we held that the delivery to the common carrier prima facie vested the right to the immediate possession of the property in the consignee; that the law implies by delivery to the carrier the goods become the property of the consignee; and that the effect of a consignment of goods by a bill of lading is to vest the property in the consignee.

And again, in the First National Bank v. McAndrews, 5 Mont. 328, 329, 5 West Coast Rep. 636, we held that a bill of lading is a symbol of the ownership of the goods covered by it, and that the transmission of a bill of lading amounts to the possession of the property described in it,

and is a compliance with the statute of frauds as to the sale and deliv ery of property.

But though the ownership and possession of the property shipped is thus changed by the transmission of the bill of lading to the consignee or buyer, yet the seller, on discovering that the buyer is insolvent, is permitted to stop the goods before the buyer acquires possession, and retake them as his own, instead of suffering them to be thrown in among the insolvent's assets. And this is the right of stoppage in transitu.

To allow of the right of stoppage in transitu, there must be, besides those adversely interested, as buyer and seller, a third party, namely. the carrier or middleman in possession of the goods, acting in one sense as the buyer's agent, but in truth, a sort of neutral custodian. When he takes possession from the seller as carrier, the transit begins; when he divests himself of possession in such capacity to the buyer, the transit ends; and the stoppage, to be effective, must occur between these two points: 2 Schouler on Per. Prop. 590; see also Benjamin on Sales, b. 5, pt. 1, c. 5; Story on Sales, sec. 336.

The buyer has the right to break the original transit and intercept his goods, personally or by means of an authorized agent, at any intermediate point. By taking the goods into his personal custody or that of his exclusive agent, whether before the transit begins, or midway, or at the end, he assumes an entire control of possession, in such a sense as utterly extinguishes the seller's right to stop them as his own: Schouler on Per. Prop. 593.

Though the right of stoppage in transitu is favored in the law, Calahan et al. v. Babcock et al., 21 Ohio St. 292, yet three things inust concur before the right attaches, so as to enable the seller to retake the goods, viz.: 1. The buyer must be insolvent; 2. The goods must be unpaid for; and 3. The goods must not have reached the possession of the buyer or his authorized agent: Story on Contracts, 5th ed., secs. 1039–1047.

In this case there is no question but the goods were not paid for, but the appellant denies that there was any evidence of the insolvency of Fotter, and he says that they were not seized by respondent until after they had been taken possession of by Potter's agent duly authorized in the premises.

1. Was Potter insolvent before the goods arrived at Bozeman, and if so, how and when did Walsh, the seller of the goods, learn the fact? The entire testimony on the subject is contained in the one answer of Walsh, in which he said: "I did have information as to Potters solvency and to the effect that he was solvent, but learned of his insolvency through Mr. D. W. Crowley, who was authorized to collect the bill from said Potter."

This testimony does not authorize or justify the finding of the court "that plaintiff learned of the insolvency of Potter, and this fact of insolvency appeared and has been proved." How did the fact of insolvency appear? By the merest hearsay. Crowley had told Walsh

that Potter was insolvent and Walsh simply testified to what Crowley had told him. When did Walsh obtain this information? It does not appear. Was it before or after the goods arrived at Bozeman? Was it before they had been taken possession of by Speith & Krug? There is no answer. If Crowley had information of this kind so essential to the respondent's right to retake the goods, why was he not called to testify as to what he knew and as to what information he gave to Walsh? There is no explanation. Why, if Potter was insolvent at the time Walsh seized the goods, was not this fact proved? If the insolvency had been a fact, or if Walsh had any such information upon which he had the right to act, such facts might have been readily established.

The insolvency of the buyer must be based upon well-founded information, and if from misinformation the seller stops the goods, the buyer is entitled to an indemnification for the expenses incurred in consequence of the stoppage: Story on Contracts, sec. 1039, and authorities cited. There is no proof that Crowley's information to Walsh had the least foundation in fact, and for all that appears Potter was solvent at the time the goods were seized by Walsh.

2. Were the goods seized ofter they had reached the possession of Potter, the buyer?

It appears from the testimony that previous to, and at the time of the arrival of the goods at Bozeman, Potter was indebted to Speith & Krug, a firm of brewers at that place, and in consideration that they might hold the goods until this indebtedness, and what they might be required to advance for freights, should be paid. They entered into an agreement with Potter whereby they promised to pay the freight charges of the railroad and Sebree, Ferris, & White. In pursuance of this agreement, which was a lawful and valid contract, they paid the freight charges on the goods when they arrived, and took them into their possession, where they remained when they were attached by Potter's creditors.

The following testimony of Krug conclusively determines the char-` acter of this transaction: "Potter asked us whether we would receive the goods, and we went together to Sebree, Ferris, & White, and he told them to deliver the goods to us, and we (Speith & Krug) paid the freight and charges for them, and took possession when they came, and held them for Potter, to be sent to him whenever he would order them, Potter had been doing business in Poney before this time. He at the time we paid the freights owed us a small bill. We held the goods as a pledge for the freight and this small bill."

By this arrangement, the carriers received their freights, and lost control of the goods, and Speith & Krug became Potter's agents to receive and take possession of the goods for Potter, which they did, in pursuance thereof. Krug testifies that after they received the goods they held them for Potter, and subject to his order. If the goods were subject to the payment of freights advanced by Speith & Krug, they became so by the act of Potter, who also subjected them to the payment

of his indebtedness to them. Speith & Krug were not warehousemen. They were not the agents in any sense of Walsh, but they were the agents of Potter, and became so by virtue of a special contract, and their act in receiving the goods was the act of Potter.

If the delivery be to a special agent or bailee representing the buyer, and receiving the goods, either for custody, or for sale and disposal, as the buyer shall subsequently direct, the right of stoppage is gone: 2 Story on Contracts, sec. 1043. These goods were held by Speith & Krug for Potter, and subject to his order. He might properly have ordered them, as his agents, to sell, or otherwise dispose of the goods, and hence the seller's right of stoppage was lost.

Speith & Krug were not warehousemen or carriers. It was no part of their business to receive goods for the purpose of forwarding them; and if they had volunteered to advance these freights, they would have had no lien on the goods therefor, such as they might have enforced, as against third persons. And if they had any lien at all, it was by virtue of a special contract with the owner, whereby they took possession of the goods for him, and held them subject to his order. If they could have held the goods, and had a lien therefor, for the freight they had advanced, and for Potter's indebtedness to them, it was by virtue of their contract with Potter that such a lien should exist in their favor, and not by reason of any carrier's rights which they acquired for having contracted to receive and hold the goods for Potter, and having paid the freights as agreed, and received the goods accordingly, the carrier's rights ceased. Then the possession of Potter commenced, and the right of stoppage was gone.

Judgment reversed and cause remanded for a new trial.

HAUSWIRTH, ADMINISTRATRIX, ETC., v. SULLIVAN ET AL.
January Term, 1886.

SUNDAY--SERVICE OF SUMMONS CANNOT BE MADE ON.-Both at the common law and under section 514 of the revised statutes, a summons cannot be served on Sunday, except in the instances specified in such section.

THE SAME--JUDGMENT RENDERED ON SUCH SERVICE IS VOID.-Service of a summons on Sunday is void, and the court thereby acquires no jurisdiction over the person so served. Consequently, a judgment against him by default, founded upon such service, is a mere nullity.

THE SAME VOID JUDGMENT MAY BE SET ASIDE.-In order to give validity to the judgments of any court, it is necessary that the court have jurisdiction of the person, and the want of such jurisdiction may be shown in an action to set aside the judgment, although by the record the judgment appears perfect.

THE SAME EQUITY WILL SET ASIDE VOID JUDGMENT-LACHES.-A defendant, against whom a judgment by default is obtained under a service of summons made on Sunday, when the return of the sheriff states that such service was made on Saturday, may maintain a suit in equity to have such judgment set aside. Under such circumstances the defendant is not limited to the statutory relief by motion, or to an action against the sheriff for a false return. And unless the rights of third persons have intervened, as by the assignment of the judgment, which appears valid on its face, or the sale of property

under it to innocent purchasers, the right of the defendant to have such judgment set aside is not affected by his laches.

THE SAME--OFFER TO PAY VOID JUDGMENT.--A condition precedent, required by courts of equity before they will enjoin the execution of a judgment at law void for failure to serve the defendant with process, is that if relief is granted a different result will be attained than that already decreed by the void judgment. But the rule and the reason for it entirely fail when the defendant comes into court with the money and offers to pay the judgment as a condition precedent to its being set aside.

APPEAL from the second district court of Silver Bow county. The opinion states the facts.

De Witt & Bach, and Knowles & Forbis, for the appellant.
Robinson & Stapleton, for the respondents.

WADE, C. J. This action is in the nature of a bill in equity to set aside a judgment at law, and the complaint substantially charges that the plaintiff and appellant is the duly appointed and qualified administratrix of the estate of John Hauswirth, deceased; that on the tenth day of March, 1883, and ever since that day until the fifteenth day of December, 1884, the defendant George W. Irvine was the duly qualified and acting sheriff of Silver Bow county; that on the fifteenth day of December, 1884, the defendant Eugene D. Sullivan was, and ever since has been, and now is, the duly qualified and acting sheriff of said county; that on the tenth day of March, 1883, an action was commenced in said county wherein the defendants and respondents herein, Lee W. Foster, Albert Kleinschmidt, and Stephen A. Estes, were plaintiffs, and John Hauswirth was defendant, and on that day that a summons was issued in that action against said defendant; that said summons was served on said defendant on Sunday, the twenty-fifth day of March, 1883, by the deputy of said Irvine, sheriff, and that no other service was ever made on said defendant in that action; that said Irvine as sheriff aforesaid returned said summons into court as served on Saturday, March 24, 1883, which was contrary to the fact anb a false return; that said defendant never appeared in that action, and a judgment by default was rendered against him in favor of the plaintiffs therein for the sum of two hundred and seventy-six dollars and costs amounting to fifteen dollars and fifty-five cents, on the fifth day of April, 1883; that on said day an execution was issued on said judgment, and on the ninth day of May, 1883, said sheriff Irvine sold all the interest of said John Hauswirth in and to lot 17, in block 29, of the town site of the city of Butte, to said Foster, Kleinschmidt, and Estes, plaintiffs in that action, and defendants herein for the sum of three hundred and thirty-one dollars, which sum was the amount of said judgment including interest, costs, and accruing costs thereon; that thereupon said sheriff issued a certificate of sale to said purchasers of said property; that on the expiration of the statutory time for the redemption of said property, to wit, on the twenty-sixth day of April, 1884, said sheriff was restrained from delivering a deed to said purchasers, and ever since has been so restrained awaiting the result of this action to determine the validity of said judgment; that before the commencement of this action, on the eleventh day of March, 1885, the