agreed upon; that is, both parties must be pledged, the one to give and the other to accept, those specific goods. This is obviously just, for until both parties are so agreed, the appropriation cannot be binding upon either; not upon the one, because he has not consented, nor upon the other, because the first is free. But the application of this principle leads to nice and subtle distinctions, which perhaps cannot be helped, but are not the less to be lamented. When the goods are selected from the first in the original agreement there is of course no difficulty on the point; both parties are then bound to apply the contract to those specific goods. Neither is there any difficulty where both parties have subsequently assented to the appropriation of some specific goods to fulfil an agreement that in itself does not ascertain which the goods are to be. The effect is then the same as if the parties had from the first agreed upon a sale of those specific goods. In the accurate language of Holroyd, J. (a), "the "selection of the goods by the one party and the adoption of "that act by the other, converts that which before was a "mere agreement to sell into an actual sale, and the property thereby passes."

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But the difficulty arises when the original agreement does not ascertain the specific goods, and one party has appropriated some particular goods to the agreement, but the other party has not subsequently assented to such an appropriation. Such an appropriation is revocable by the party who made it and not binding on the other party, unless it was made in pursuance of an authority to make the election conferred by agreement; or unless the act is subsequently and before its revocation adopted by the other party. In either case it becomes final and irrevocably binding on both parties.

The question of whether there has been a subsequent assent or not, is one of fact; the other question of whether the selection by one party merely showed an intention in that party to appropriate those goods to the contract, or showed a determination of a right of election, is one of law, and sometimes of some nicety.

(a) Rhode v. Thwaites, 6 B. & C. 388.

The general rule laid down by Lord Coke in Heyward's Case (a), and adopted in Comyn's Digest, Election, seems to be, that when from the nature of an agreement an election is to be made, the party who is by the agreement to do the first act, which from its nature cannot be done till the election is determined, has authority to make the choice in order that he may perform his part of the agreement; when once he has performed the act the choice has been made and the election irrevocably determined; till then he may change his mind as to what the choice shall be, for the agreement gives him till that time to make his choice.

It follows from this, that where from the terms of an executory agreement to sell unspecified goods, the seller is to dispatch the goods, or to do anything to them that cannot be done till the goods are appropriated, he has the right to choose what the goods shall be; and the property is transferred the moment the dispatch or other act has commenced, for then an appropriation is made, finally and conclusively, by the authority conferred in the agreement, and in Lord Coke's language, "the certainty, and thereby the property, begins "by election" (a); but however clearly the seller may have expressed an intention to choose particular goods, and however expensive may have been his preparations for performing the agreement with those particular goods, yet until the act has actually commenced the appropriation is not final, for it is not made by the authority of the other party, nor binding upon him (b).

The distinction between a mere intention to appropriate, and a determination of a right of election, which though somewhat subtle seems to be logical, reconciles the two cases of Fragano v. Long e and Atkinson v. Bell (d), which seem to be on the very boundary line that divides the two principles.

(a) Heyward's Case, 2 Coke, 36.

(b) This statement of the law was approved by Erle, J., in Aldridge v. Johnson, 26 L. J. Q. B. 296; 7 E. & B. 885.

(c) Fragano v. Long, 4 B. & C. 219.

(d) Atkinson v. Bell, 8 B. & C. 277.

In Fragano v. Long (a), in 1825, Fragano of Naples sent a written order to manufacturers at Birmingham for a quantity of hardware, to be dispatched on insurance being effected. The manufacturers at Birmingham, in pursuance of this order, packed up a cask of hardware and sent it to their shipping agents at Liverpool; it was marked with Fragano's initials, and insured on his account. The shipping agents were putting the goods on board a vessel, when, by the fault of the defendant, they were injured, and an action being brought for this wrong in Fragano's name, it was contended that it was ill brought, because the property in the goods, at the time they were injured, had not yet vested in Fragano; but the Court of King's Bench decided that the property was in Fragano from the moment the goods by his direction left the seller's warehouse at Birmingham.

In Atkinson v. Bell (b), before the same Judges in 1828, it was proved that Bell, the defendant, had ordered two machines to be made by Sleddon, after the pattern most approved of by a person called Kaye. Sleddon completed two machines; he afterwards altered them to suit some alteration in Kaye's machines. He then packed them in boxes, and wrote to Bell to say they were ready, and to ask by what conveyance they were to be sent. Sleddon then became bankrupt, and his assignces having brought an action for goods bargained and sold against Bell, the Court of King's Bench, with some apparent reluctance, decided that the form of action would not lie, as there was no actual [bargain and] sale. The goods remained Sleddon's goods, though he had intended them for Bell, and informed him of that intention.

There can be no doubt that Sleddon had, as far as intention could do it, appropriated the goods to Bell as firmly as the sellers had appropriated them to Fragano in the other case, and probably he had been at more expense in consequence of such an intended appropriation; but Fragano's bargain was, that the goods should be dispatched, and his

(a) Fragano v. Long, 4 B. & C. 219.
(b) Atkinson v. Bell, 8 B. & C. 277.

seller had begun to dispatch them. Sleddon had done nothing under his contract with Bell: he had only made great preparations for doing something. For all that had been done, Sleddon might still have supplied Bell with any two other machines answering the description; but if Bell had assented to the appropriation of these two machines the case would have been different.

In the following cases the question whether a subsequent assent had been given was considered.

In Rhode v. Thwaites (a), in 1827, the buyer bought twenty hogsheads of sugar, to be filled and delivered by the seller. The seller filled and delivered four, and subsequently filled sixteen others, and wrote to the buyer to take them away, and the buyer promised to do so. It was held that the property passed.

In Elliott v. Pybus (b), in 1834, the property was held to have passed where the buyer, having ordered a machine to be made, admitted when it was finished that it was made according to order, made a part payment on account, and requested the seller to deliver it before the balance was paid (c).

Sparkes v. Marshall (d), in 1836, was an action on a policy of insurance, and the question was, whether the plaintiff had, at the time of making the policy, any property in a particular cargo of oats. Bamford, a corn merchant, had bought of John and Son, of Youghal, 500 to 700 barrels of prepared black oats, to be shipped by them as they could get a vessel. Bamford sold to the plaintiff, on the 10th of November, 500 to 700 barrels of oats, described as to be shipped by John and Son; and on the 14th of November Bamford wrote to the plaintiff to say that the oats were coming by the Gibraltar, and the plaintiff showed his assent to this by immediately insuring, on his own account, the oats "per Gibraltar, supposed to be not yet loaded." "The question turns," said

(a) Rhode v. Thwaites, 6 B. & C. 388 ; 9 D. & R. 293.

(b) Elliott v. Pybus, 10 Bing. 512.

(c) Wilkins v. Bromhead, in 1844, 6 M. & G. 963; 7 Scott, N. R. 921.
(d) Sparkes v. Marshall, 2 Bing. N. C. 761.

Tindal, C. J., “upon the right of the plaintiff at the time of "effecting the policy to that specific cargo of oats on board the "Gibraltar. The plaintiff contends that those particular oats "were appropriated to him; the defendant, on the other "hand, contends that no specific cargo of oats was appro"priated, that he had only a right of action against Bamford, "and that he could recover the same damages now in such "action, notwithstanding the loss of the Gibraltar packet This letter (of November 14th) seems to us to be an "unequivocal appropriation of the oats on board the Gibraltar "by Bamford, and this appropriation is essential to and adopted by the plaintiff. we therefore think the

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"plaintiff is entitled to judgment."

In the following cases the question was, whether the property had passed, the seller having by the determination of an election, appropriated the goods to the contract.

On

In Bryans v. Nix (a), in 1839, Miles Tempany, a corn exporter at Longford in Ireland, was in the habit of consigning corn to the plaintiffs at Liverpool for sale on commission, and drawing bills on them against the consignments. the 31st of January Tempany obtained from the captain of a boat, No. 54, lying at Longford, a boat receipt for 530 barrels of oats stated in the receipt to be then on board, by which they were made deliverable to the plaintiff's agents in Dublin. In fact, there were no oats on board at the time of signing the receipt, for the loading began on the 1st of February. On the 2nd of February, Tempany wrote to the plaintiffs enclosing the boat receipt and a bill drawn on them against these 530 barrels, which they accepted on receipt. On the 6th, 400 barrels had been put on board, and on this day Tempany, being pressed, gave the defendants a delivery order on his agent in Dublin for oats on board No. 54 and other boats. On the 9th the loading was complete, and Tempany induced the captain to sign a new boat receipt, making the oats deliverable to the defendants, who subsequently obtained possession. The Court

(a) Bryans v. Nix, 4 M. & W. 775.