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of part of the cotton was a constructive delivery of the whole.

THESE were two appeals from an order made on the 8th June 1875, by the judge of the County Court at Halifax.

For many years prior to the 17th of April 1875, Gibbes and Co., of Charleston, U.S.A., cotton growers, were in the habit of consigning to Whitworth and Co., cotton spinners, of Boy Mill, at Luddenden Foot, near Halifax, large quantities of cotton to be used by them for the purposes of their trade. The course of dealing between the parties was that Gibbes and Co., from time to time forwarded the cotton purchased of them to Liverpool, consigned to the order of Whitworth and Co. Simultaneously with the shipment of the cotton Gibbes and Co. drew upon Whitworth and Co. for the amount of the consignment, bills payable sixty days after sight, and forwarded the same for acceptance, together with the bill of lading, to Brown, Shipley, and Co., the agents at Liverpool of Gibbes and Co. Brown, Shipley, and Co., transmitted the draft to Whitworth and Co. for their acceptance, which being done and returned, Brown, Shipley, and Co. forwarded the bill of lading to Whitworth and Co., and they, having indorsed it, sent it to a Mr. Wintle, the manager of the Lancashire and Yorkshire Railway Company at the North Docks Station, Liverpool, where the cotton lay, with cash sufficient to defray the charges for the sea freight. The railway company thereupon paid the charges, took possession of the cotton, and forwarded it by their own line from the North Docks station to Luddenden Foot, for which service the railway company became entitled to a further payment from Whitworth and Co. Sometimes, however, the railway company advanced the charges for the sea freight withont waiting for a remittance from Whitworth and Co., and forwarded the cotton so obtained to Luddenden Foot, and delivered it to Whitworth and Co., debiting them with the charges and further costs of carriage. Whitworth and Co. were large customers of the railway company, and in the case of cotton consigned to the firm the trucks containing the same were, on arrival at Luddenden Foot, placed by the servants of the railway compay sometimes on one or other of the general sidings of the company in the station yard, and sometimes on a siding called the "Whitworth Siding," of which the following is a description: "Boy Mill is situated at the south end of the railway station at Luddenden Foot, and adjoining to the main line of railway, and on the other side of the railway opposite to Boy Mill, and, connected with the main line by points in the ordinary way, is the Whitworth Siding which is connected by a turn-table and cross lines of rails with the interior of Boy Mill. This latter siding contains standing room for about twenty goods' trucks of ordinary construction. The soil upon which it stands is the property of the railway company, but was originally formed and afterwards kept in repair by the railway company, at the expense and for the sole and exclusive use of Whitworth and Co. Upon this siding a notice board was placed by the railway company, and bearing in large letters the words "Whitworth Siding." siding is protected at each end by blocks in the ordinary way, and except when trucks are being shunted on to, or taken off the siding, from, or on to the main line, the blocks are invariably kept

The

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closed and secured by padlocks." But, wherever the trucks of cotton were placed, no advice notes were ever issued to Whitworth and Co., but down to the 18th April 1875, the firm was allowed to take and remove the goods, subject only to the necessary precautions for crossing the main line at their absolute discretion, without freight being required, on, or before delivery, as they kept a ledger account of freight with the railway company."

In March 1874, Gibbes and Co. under their general contract dispatched by the Republic steamer from New York seventy-two bales of cotton, “to be shipped to Liverpool, consigned to order, for account and risk of Whitworth and Co., Luddenden Foot." In due course the invoice, together with a bill of exchange, drawn by Gibbes and Co., for 10477. 198., was on the 6th April received by Whitworth and Co. for acceptance. This being done, the bill was returned to Brown, Shipley, and Co., who thereupon forwarded the bill of lading to Gibbes and Co. Gibbes and Co. then endorsed the bill of lading to Mr. Wintle, with instructions to send the cotton to Luddenden Foot.

On the 11th and 15th April, the bales, ex Republic, reached Luddenden Foot, and upon their arrival thirty-three of them were immediately taken into the mill and manufactured. Of the remaining thirty-nine, twenty, which were in one of the company's trucks, No. 3166, were placed on the Whitworth Siding, and the other nineteen, in truck No. 1260, remained on the railway company's general siding.

On the 13th April Whitworth and Co. in like manner received a similiar invoice and a bill for 10797. 168. 9d., in respect of seventy-two bales of cotton shipped per Celtic, which were in due course forwarded to Luddenden Foot. This cotton was similarly disposed of, thirty-three bales being on the 19th April taken into the mill and manufactured, twenty being left in truck No. 11,695, on the company's sidings, and the remaining nineteen, in truck No. 7524, reached Luddenden Foot Station on the 21st.

On the 17th April 1874, Whitworth and Co. filed a petition for liquidation. At the general meeting held on the 8th May the creditors resolved upon a liquidation by arrangement, and appointed H. Blackburn trustee.

On the 18th April the railway company, having notice of the petition, removed the truck No. 3166 on to their lines, and claimed a general carriers' lien for unpaid freight on the four trucks of cotton in their possession.

On the 21st April Ernest Schott, the Manchester agent of Gibbes and Co., gave notice to the railway company that he claimed on behalf of his principals the thirty-nine bales ex Celtic and the thirty-nine ex Republic, which were in the four trucks at Luddenden Foot station.

On the 27th April 1874, Gibbes and Co. applied for an order that, by their notice of the 21st, they had well and effectually exercised their right as unpaid vendors to stop in transitu the bales of cotton which remained in the possession of the railway company. By an arrangement between the parties the bales in dispute were sold, and the proceeds, amounting to 12201., paid into the bank to abide the result of the application.

On the 8th June 1875, the County Court Judge being of opinion that the ultimate destination of the cotton was Luddenden Foot station, and that

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the right to stoppage in transitu had been rightly exercised as to the thirty-nine bales ex Celtic, ordered and declared that Gibbes and Co. were entitled to so much of the sum paid into the Bradford Bank as represented the bales ex Celtic, and that the trustee under the liquidation was entitled to the residue of the said sum, being the amount which represented the thirty-nine bales ex Republic.

Against so much of this order as related to the bales shipped ex Republic Gibbes and Co. appealed, and the trustee appealed against so much thereof as related to those shippd ex Celtic. The two appeals now came on for hearing together.

Benjamin, Q.C. and Jordan, for the trustee, contended: (1) That the cotton upon its arrival at Liverpool had reached the destination contemplated by the vendors, where it would await the further orders of the purchaser, and consequently that the transitus then ceased, the rule being that when goods arrived at the place where they are to remain, to the order and disposition of the purchaser, then, although they have not reached their ultimate destination, the transitus is ended: (Wentworth v. Outhwaite, 10 M. & W. 449.) (2) That, assuming the right of stoppage in transitu to continue until the cotton reached Luddenden Foot, then such of the bales as had been placed on the "Whitworth Siding' had reached their ultimate destination, and that thereby there had been such a delivery of part as was equivalent to a constructive delivery of the whole. They cited

Coventry v. Gladstone, L. Rep. 6 Eq. 49;
Crawshay v. Eades, 1 B. & C. 185;

Bolton v. Lancashire Railway Company,

L. Rep.

1 C. P. 431; 13 L. T. Rep. N. S. 769. (3) That the lien for freight claimed by the railway company had nothing whatever to do with the question. That the company could not put an end to the contract existing between them and Whitworth at their own volition without notice to Whitworth or his trustee, and that, even

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The question is one of most ordinary occurrence. Merchants, the owners of the cotton, at Charleston, agree to send shipments to Liverpool, and nowhere else. They send them from Charlestown by two vessels for transshipment, and they are to be paid for by an acceptance of Whitworth and Co. The vendors send their bills of exchange to Brown, Shipley, and Co., in order that they may present the bills for acceptance, and at the same time they accompany the bills with shipping documents, and upon the acceptance of the bills the shipping documents are given up. The title to the delivery and possession of the goods is transferred by means of the bills of lading. The destination of the goods was Liverpool. If anything had happened upon the voyage there would have been a right to stop them in transitu. At the place which the vendors prescribe as the desti nation of the goods the goods arrive, and the transitus is at an end. The vendees, the persons at whose risk and upon whose account the goods were to be so shipped, had no right to claim them unless they were, as they became by the act of the agent of the vendors, fully authorised to act for them on his own part, the absolute owners of the goods, which were thus sold and delivered. They were paid for by means of bills, which I am quite aware are not good bills by reason of the subsequent failure, but which was the very manner stipulated for between the vendors and the purchaser, and when the goods arrived at Liverpool the purchaser acquired a right, by the fact of his having accepted the bills and performed the condition, to demand from the ship's master the delivery to him of those goods, and he exercised that right.

To what use, then, is the whole of the argument that there remained a transitus after that? How is it possible to say that the transitus then commenced? If the place of destination had not been reached, then all that Mr. De Gex has said to me about a special or general carrier might have

Allan v. Grippes, 2 C. &. J. 218.

De Gex, Q.C. and Finlay Knight, for Gibbes and Co., argued contra, that the real transitus never commenced until the goods reached Liverpool, because the real consignees of the cotton were Brown, Shipley, and Co., who received it as the agents there of Gibbes and Co., and did not part with it until the bills of exchange had been duly accepted; consequently, the cotton was in the possession of the vendors, or their agents until delivered to the railway company to be conveyed to Luddenden Foot, and that, therefore, the right to stop it arose and continued until the cotton reached its ultimate destination, which was not "Whitworth's Siding," but Boy Mill, on the other side of the line; and that the railway company were carriers, not warehousemen, and that their course of dealing with Whitworth precluded them from setting up the lien which they claimed. They cited

Whitehead v. Anderson, 9 M. & W. 518;
Tucker v. Humphrey, 4 Bing. 516;

Berndtson v. Stang, L. Rep. 4 Eq. 481; 13 L. T. Rep.
N. S. 583.

The CHIEF JUDGE.-In my opinion, the case is reasonably clear, although the several arguments urged before me appear to have had considerable weight with the learned County Court Judge.

When Mr. Wintle, the agent for Whitworth and Cc., paid the sea charges, which he did on Whitworth and Co.'s account, he became holder of the bills of lading for Whitworth, and the goods were delivered to him in that character, and there was an end of the transitus. The transitus that takes place after that is only prescribed by the purchaser, the vendors had nothing to do with it. The vendors' transitus was at an end, and it is in vain to read cases, in which a ship, being chartered for London, the goods are not delivered from the ship until the vendor exercises his right, or, being chartered for London the ship is stopped at Copenhagen. All these are familiar instances of stoppage in transitu. What can that have to do with the case when it is a case of bargain and sale of goods to be delivered on the wharf at Liverpool upon certain conditions being complied with? The conditions are complied with, the delivery takes place, and the transitus is at an end, and the right at law to stop the goods after that never existed. If the facts were otherwise there would apparently be a great deal to be said; but I will not go into that.

66

Upon the history, however, which has been given to me of the way in which Whitworth's Siding" was a part of the railway, and the use which was from time to time made by Whitworth of that siding, I think the goods had come home when

they were upon the siding. I think, moreover, that there was a constructive delivery of the whole by delivery of part of the goods, if it were necessary, as in my judgment it is not necessary, to resort to any such doctrine. I think, also, the taking out at his own will from several of the trucks, containing different parcels not distinguishable, and working up in his own manufactory the goods so brought from Liverpool, was as clear a constructive possession of the entirety as the law requires.

The only other thing to be noticed is the act of the railway company, who, having gone on in an amicable manner, not demanding payment on the instant of delivery but keeping an account of the transactions between themselves and Whitworth, bethink themselves all of a sudden that they will keep such of the goods as had not been carried across the railway. I do not use the word " delivered," but "carried across "-until they were paid their charges. But what has their claim of lien to do with the question which I have to consider? They may be right or wrong. Upon that I will not express any sort of opinion, but of this I am clear, that it could not have altered any rights which existed before. Lien upon what? Upon Whitworth's goods, and it is because they are his goods that they claim the lien. It is not necessary, however, to dwell upon that part of the case at all.

I am of opinion that the order made, and which has given to the trustee only half of the goods which he contends belonged to Whitworth at the time of his failure, cannot be sustained. The proper order is to declare that the trustee is entitled to the whole of the goods, which were in the possession of the railway as the agents, carriers, or anything else you like to call them, of Whitworth, at the time o the failure.

The cases, which have been referred to, really help the matter and do not affect the principle upon which I have endeavoured to decide it. In Wentworth v. Outhwaite (10 M. & W. 449), which is very plainly in point, although there were certain goods, which were to be delivered to a man at a place thirty miles from Leeds, yet, as they were delivered at Leeds to a workman, the delivery was complete. Lord Abinger there says: "It seems to me that a great part of the very learned argument which we have heard, turns upon a question of fact, whether Leeds was the place of destination to which the goods were to be sent. It may be the place of destination at which the goods are to be at the consignee's risk, and I think that in this case it was the place where they were to be at his risk until he sent for them." In the very terms of the invoice that applies to this case. Mr. Baron Parke's judgment is to the same effect: "The goods had arrived at their place of destination, for that, as I understand, means the place, to which they were to be conveyed by the carriers, and where they would remain unless fresh orders should be given for their subsequent disposition." Then he quotes the decision in Dixon v. Baldwen, where Lord Ellenborough, after referring to the several cases upon this subject, says, "In those cases the goods had so far gotten to the end of their journey that they waited for new orders from the purchaser to put them again in motion, to communicate to them another substantive destination, and without such order they would continue stationary." Then, in Whitehead v. Anderson, p. 534

[CT. OF APP.

(ubi sup.), it is stated, "The law is clearly settled that the unpaid vendor has a right to retake the goods before they have arrived at the destination originally contemplated by the purchaser, unless in the meantime they have come into the actual or constructive possession of the vendee. If the vendee takes them out of the possession of the carrier into his own before their arrival, with or without the consent of the carrier, there seems to be no doubt that the transitus would be at an end, though, in the case of the absence of the carrier's consent, it may be a wrong to him, for which he would have a right of action."

But, without going further into the authorities, which, although numerous, are not by any means obscure or doubtful, it appears to me that the right to stoppage in transitu ended when the goods were delivered by virtue of the bills of lading to the purchaser's agent, and that after that there could be no right, for there was no transitus to which the right of stoppage could apply. I shall make no order as to the costs.

Solicitors for the trustee, Johnson and Weatheralls, agents for Rawson, George, and Wade, Bradford. Solicitors for Gibbes and Co., Speechly and Co., agents for G. E. Mumford, Bradford.

Supreme Court of Judicature.

COURT OF APPEAL.

SITTINGS AT WESTMINSTER. Reported by GILBERT G. KENNEDY, Esq., Barrister-at-law.

Nov. 20, 22, and 23, 1875. (Before the LORD CHANCELLOR (Cairns), KELLY, C.B., BRAMWELL, B., and BLACKBURN, J.)

OGG AND ANOTHER v. SHUter.

Sale of goods-Cash against bill of lading-Refusal by purchaser to pay Vendor's right to retain possession-Jus disponendi.

Where by the terms of a contract the bill of lading is deliverable upon the vendee's fulfilling certain conditions, the shipper is entitled not only to relain possession of the goods under such bill of lading until those conditions are fulfilled, but also in case of the vendee's default to dispose of the goods. L., a potato merchant in France, contracted to sell to plaintiffs, potato merchants in England, twenty tons of potatoes, to be delivered "free on board," and "cash against bill of lading." The plaintiffs paid 301. on account. The potatoes were put by L. into sacks of the plaintiffs', sent by them for that purpose, and L. drew on the plaintiffs "at sight" for the balance of the agreed price, and despatched the potatoes to England. The shipment on arrival was supposed by the plaintiffs, erroneously, to be sixteen sacks short, and the plaintiffs, therefore, refused to accept the full draft drawn on them by L., but offered to accept a draft for the amount less a deduction proportioned to the supposed short shipment. L.'s agent in England thereupon endorsed the bill of lading to the defendant with instructions to sell, which the defendant did.

Held (reversing the decision of the Common Pleas), that the plaintiffs were in default, and that the defendant was entitled to the verdict. For that the terms of the contract entitled the vendor to

retain possession of the goods until the plaintiff's complied with the conditions of payment, and that as the plaintiffs, made default in complying with those conditions, the vendor or his agent had power to dispose of the goods.

THIS was an appeal by the defendant under the provisions of the Common Law Procedure Act 1854, against the decision of the Court of Common Pleas in discharging a rule of that court, obtained by the defendant to enter a verdict for the defendant instead of the verdict nominally entered for the plaintiff.

The declaration was in trover for 251 sacks of potatoes and 251 sacks. The pleas were not guilty, and not possessed. Issue thereon.

1. The following is a statement of the case. 2. The plaintiffs brought an action against the defendant, for the conversion by the defendant of certain potatoes alleged to be the property of the plaintiffs, and the cause came on for trial before Keating, J., on the 1st May 1874, at Westminster Hall, when the following facts and correspondence were given in evidence; and the learned judge directed a verdict to be entered for the plaintiff's, with leave to the defendant to move to enter a nonsuit or a verdict for the defendant, the court to be at liberty to draw inferences of fact.

3. The plaintiffs are potato salesmen.

4. The defendant is a partner in the firm of Comfort and Shuter, who are potato salesmen.

5. In the month of Jan. 1874, a contract was entered into by the plaintiffs with Monsieur Paresys Loutre of Merville in France for the purchase of a quantity of potatoes on the terms contained in the following letters and telegrams.

Messrs. Ogg and Co., London.

Merville, 5 Jan. 1874.

In answer to your letter of the 3rd. inst. I can let you have 200 tons of potatoes (lesquins) of this country, good sound goods, at the price of 82 francs for 1000 kilogrammes, put on board at Dunkirk, to be delivered in the course of the present month, payable in cash, that is to say, against bill of lading signed by the captain, ani the statement of weight of the sworn weighers of the city of Dunkirk. If you accept my offer please reply by return of post, and do not fail to send at the same time a cheque for 251. as an earnest of the bargain.

PARESYS LOUTRE.

Telegram from Plaintiffs to Paresys Loutre. 14th Jan. 1874. Can you supply us lesquins at 80 francs per 1000 kilograms free on board at Dunkirk?

Telegram from Paresys Loutre to Plaintiffs. Lesquins are higher. Cannot supply you at less than 84 francs free on board.

Telegram from Plaintiffs to Paresys Loutre. 15th Jan. Ship on board of steamer, Dunkirk to London, 20 tons of lesquins at 84; as sample. We send cheque for 301. by letter to-night.

Letter from Plaintiffs to Paresys Loutre.

Jan. 16. We have duly received your telegram of 14th inst., and confirm ours of the 15th inst., enclosed please find the cheque for 30l. on account, also delivery order for 300 sacks shipped to Messrs. Berthelot Derode, to whom you will be good enough to apply. We recommend you to ship as promptly as possible, as this small order is simply to judge of the quality of goods you can supply us with, and if we are satisfied it will lead to more important business.

Letter from Paresys Loutre to Plaintiffs.

18th Jan.

I have received your telegram dated the 14th Jan. at three in the afternoon, and I have replied immediately by telling you that I could not give you lesquins at less than 81 francs free on board, and asked you to reply immediately by telegram. I have likewise received your telegram dated 15th Jan., 5.47 p.m, received the 16th at

[CT. OF APP.

10 a.m.; and I have besides received your letter dated the 16th Jan., received on morning of 17th, inclosing a cheque for 301.; also a delivery order for fifteen bundles of sacks, sent by steamer, and asking me to send you 20,000 kilogrammes as a sample. To please you I will send the quantity of lesquins you ask me for, notwithstanding your telegram reached me too late, but I hope that in future we shall have more important sales.

6. In pursuance of this arrangement, Paresys Loutre, by his agent, F. Camys Van Rycke, of Dunkirk, put potatoes of the weight of 18,878 kilogrammes into 251 of the plaintiffs' sacks, sent by them to Paresys Loutre, and shipped the same on board the steamship Blonde at Dunkirk under the following bill of lading:

I, Fowler, master, after God, of the ship named Blonde now at Dunkirk, intending at a proper time to pursue my voyage under the protection of God until I arrive at the city of London, there to unload, acknowledge to have received into my said ship, to be carried on deck, from here, of you Mr. F. Camys Van Rycke, 251 sacks of potatoes (lesquins), weighing in the whole 18,878 kilogrammes, all the sacks in good condition, marked as in the margin [in the margin of the bill of lading was put "Mark of said sacks, Ogg and Co."], which I promise to deliver in the same form, except perils and accidents of the sea, at London, to order, on payment to me for freight of the sum of 8s. per 1000 kilogrammes, besides advances according to the usual custom of the sea; and for performance of the above I have bound and do bind by this my person my goods and my said ship with the tackle. In faith of which I have signed four bills of lading of the same tenor, the one of which being accomplished the others to be void. Done at Dunkirk, the 24th Jan. 1874. On deck at shipper's risk.

For the Master,

£7 118. 1d., indorsed F. Camys Van Rycke,
Comfort and Shuter.

7. On the 25th Jan. 1874, the said Camys Van Rycke advised the plaintiffs in the following letter:

I have the pleasure of advising that according to the order of Mr. Paresys-Loutre of Merville, I have sent you by steamer Blonde, Captain Fowler, Ogg and Co., 251 sacks of potatoes (lesquins), weighing net 18,878 kilogrammes. Inclosed is the invoice that Mr. Paresys has given me directions to address to you, and the balance of 34., which I have drawn on you at sight. Will you give it your good attention? The bill of lading will be sent you with my draft. There remain 49 empty sacks at your disposal.

In answer to your letter of 24th inst. you must by this time have had the advice from my representative at Dunkirk, Mr. Camys, of the departure of the 20,000 kilogrammes; he must have drawn on you for the payment of the balance for the goods. Lesquins have risen the last ten days 15 francs the 1000 kilogrammes. This kind of potato is becoming very rare here. If the demand for them continues there will remain none in a month.

9. On the 26th Jan. 1874, the potatoes arrived on board the steamship Blonde in the Thames, and were landed at Cotton's wharf on that or the next day.

10. Mons. Camys Van Rycke drew a bill of exchange on the plaintiffs pursuant to the terms of the letter of the 25th Jan., and annexed thereto the said bill of lading endorsed by him, of which bill of exchange the following is a copy:

B. P. 341.

Dunkirk, 25th Jan.

At sight, please pay to my order, and against bill of lading hereto annexed, the sum of 341. sterling, value in goods, and according to advice of yours devoted, F. CAMYS VAN RYCKE.

Good for 341. sterling. To Messrs. Ogg & Co.

Here followed several indorsements.]

11. The said draft for 341., dated 25th Jan. 1874, was enclosed with the said bill of lading annexed thereto, on 26th Jan. 1874, to Messrs. A. Petyt and Co. (Mr. Camys Van Rycke's bankers), and was presented by Messrs. Devaux & Co. with the bill of lading annexed, to the plaintiffs for payment on the 27th Jan. 1874, who refused to pay the said bill or to honour the same, on the ground stated in the following letter written by them to Mr. Paresys Loutre:

We have just seen the goods shipped on board the steamer Blonde, and we find that there are 16 sacks short shipped, and that there are only 235 sacks of lesquins loaded, which is stated on the bill of lading, of which the captain is the bearer.

We have asked Mr. Devaux, the holder of your draft, to keep it until the discharge of the vessel, to see what there is on board. To this he has refused his consent, and we have necessarily refused to pay the amount, viz., 31. We request you then to write to your agent here, to present to us the invoice receipted, and the bill of lading of what there is on board, and we will pay what is due. On your sending us the invoice and bill of lading we will send you a cheque by return. Pray then to direct your agent at Dunkirk to ascertain if any have been left on the quay, and to take care of our empty sacks.

The statement of the short shipment in the above letter proved to be erroneous, the quantities specified in the invoice, bill of lading, and correspondence being, in fact, on board.

12. On 27th Jan. 1874, Messrs. Scorer and Harris, notaries of the Royal Exchange, London, presented the same bill, with bill of lading attached for payment, and payment was again refused by the plaintiffs, and they noted it, and it was returned to Messrs. C. Devaux and Co.

13. On the 30th Jan., the defendant, to whom the said bill of lading and bill of exchange had then been respectively given, and endorsed by Camys Van Rycke, presented to the plaintiffs the sail draft, and the bill of lading endorsed by the firm of Comfort and Shuter annexed thereto, and requested the plaintiffs to honour and pay the said draft, which they for the reasons aforesaid again declined to do.

14. On the 30th Jan. the plaintiffs wrote th following letter to the defendant:

We hereby give you notice that the 251 sacks potatoes arrived per steamer Blonde, were consigned to us and are our property, and if you part with them to anybody else, you will be held responsible for sale, &c.

And on the 2nd Feb. 1874, the plaintiffs wrote the following letter to Paresys Loutre :

Our Mr. Ogg having left London for Antwerp on Saturday last, at that time we were not able to ascertain the correct quantity of potatoes shipped to us per steamer Blonde. We wish you to understand that we only want what is right, and we regret that we do not know each other better, and as we have been treated unfairly in business transactions of this nature before, we think it well to see quantity of goods before we pay on bill of lading, especially as the officials inform us of short shipment. Since Mr. Ogg's departure, the potatoes have been discharged from vessel to wharf, and find on exami. nation the goods are correct in quantity. I have telegraphed the particulars to Mr. Ogg in Antwerp, and on his return on Thursday, he will then take delivery of the goods. We have not to thank the broker at Dunkirk for all this unnecessary trouble.

15. On the 2nd Feb. the defendant in consequence of instructions he had received from Mr. Camys Van Rycke, sold the goods.

16. At the trial before Mr. Justice Keating, after the foregoing facts and correspondence had been proved, it was found as a fact by the jury that the goods were not of such a perishable

[CT. OF APP.

nature as to render the sale of the potatoes necessary, and thereupon the learned judge directed that a verdict should be entered for the plaintiffs, with leave to the defendant to move to enter the verdict for him. The court to draw inferences of fact.

17. It was admitted by the counsel for the plaintiffs that the vendor, Paresys Loutre, had, on the 30th Jan., at the time of the plaintiffs' refusal to honour the draft, a lien upon the potatoes for the unpaid purchase-money of 341.

The Court of Common Pleas discharged the rule obtained by the defendant, after taking time to consider(a).

(a) The judgments in the court below were as follows: Jan. 22.-Lord COLERIDGE, C.J.-The facts in this case are shortly these. There is a contract for the sale of potatoes by the person whom the defendant represents to the plaintiffs, to be delivered free on board within a month, and payment is to be by cash against bill of lading. The goods are shipped in the plaintiff's sacks, under a bill of lading, which is indorsed to the defendant. A part payment of 30l. is made. The action being for a conversion of the potatoes by the defendant, it was objected by his counsel that the property in the potatoes had never passed to the plaintiffs. It was contended on the other side that the property had passed, and that the vendor had merely reserved a lien on the goods for the price. My brother Keating directed a verdict for the plaintiffs, reserving leave to the defendant to move. I am of opinion that his ruling was correct. The result of the decisions which were cited is, that the question whether the property in goods has passed under a contract of sale is a question of intention to be gathered from all the circumstances, the expressions made use of in the contract, and also the surrounding circumstances. In the case of a specific chattel, the rule is that the sale passes the property. So also the general rule, as laid down in several cases, is that, in the absence of countervailing circumstances, the specific appropriation of goods to the contract, viz., their being placed in vessels or receptacles provided by the purchasers, would pass the property. Here the potatoes were separated from a larger bulk, and placed in the plaintiffs' sacks, which had been sent over for the purpose. In addition to this very strong fact there is also the expression "free on board" in the contract, which has in previous cases been relied on, not as absolutely conclusive to show that the property passed, but as a strong element to be considered in favour of that conclusion. There is also the further fact that there was a part payment of 301. All these are very strong circumstances to show that the property passed; but it is contended, on the other hand, that the expression, "cash against bill of lading," in the contract, is of itself conclusive to ascertain the intention of the vendor; that, the bill of lading being the indicium of property, the fact that the purchaser was not to receive it until he paid the price, unmistakably indicated the intention that till then the property should not pass. In support of this view a great many cases and dicta of judges were cited. These authorities appear to me to go no further than the conclusion that, in the absence of countervailing circumstances, the stipulation for cash against bill of lading would have been conclusive. In like manner many of the circumstances existing in this case have been held, in the absence of countervailing circumstances, to be conclusive evidence of an intention to pass the property. There is also another strong fact against the plaintiffs' contention, viz., that the bill of lading was indorsed to the order of the defendant; but that again is only evidence of the intention, and may be rebutted by contrary evidence. The rule as deducible from all the cases, and as it is laid down in the learned works of Blackburn, J., and Mr. Benjamin on Sale, is, that the question whether the property has passed being one of intention to be collected from all the circumstances, no single circumstance is necessarily conclusive in all cases, but the conclusion to be drawn must depend on a balance of the various circumstances on one side and the other. The question is, therefore, one of fact for a jury; and we have here, being placed in the position of a jury, to determine it as a question of fact. I am