held that the oats had not been appropriated to the plaintiffs. The grounds of the decision appear to have been that the boat receipt sent to the plaintiffs purported to be an undertaking by the captain to retain for them goods then in his possession, when, in fact, there were none, and was therefore meaningless; and was not evidence of Tempany having appropriated similar goods to them which subsequently came into the captain's possession. And that as to these goods there was no evidence that Tempany had appropriated them to anyone before the 9th, on which day the captain was made the agent of the defendants to hold for them.

In Aldridge v. Johnson (a), in 1857, it was agreed that the plaintiff should give Knights 32 bullocks and a sum of 237., and should have in exchange 100 qrs. of oats forming part of a bulk of 200 to 300 qrs. then lying in Knights' warehouse. The plaintiff sent sacks for the oats, of which 155 were filled by Knights' order. Knights then, finding himself in embarrassed circumstances, had the sacks emptied back into the bulk, and subsequently the defendant, his assignee in bankruptcy, claimed the oats. But the Court held that the property had passed to the plaintiff. Erle, J., said the decisive act was putting the portion into the sacks (b).

The case of Langton v. Higgins (c), in 1859, followed Aldridge v. Johnson (a). Bottles which the plaintiff had sent to be filled with peppermint oil, were filled and weighed, and the Court held the property had passed.

In Falk v. Fletcher (d), in 1865, De Mattos, of London, chartered a vessel from the defendants, to load a cargo of salt at Liverpool, and proceed with it to Calcutta. The captain was to apply to the plaintiff at Liverpool for a cargo. The course of business between the plaintiff and De Mattos was for the plaintiff to put the salt on board any ship chartered by De Mattos, to take the mate's receipts for the quantities as put on board, exchanging them afterwards

(a) Aldridge v. Johnson, 26 L. J. Q. B. 296; 7 E. & Bl. 885.
(b) But see Jenner v. Smith, post, p. 144.

(c) Langton v. Higgins, 28 L. J. Ex. 252 ; 4 H. & N. 402.

(d) Falk v. Fletcher, 34 L. J. C. P. 146; 18 C. B. N. S. 403.

for a bill of lading making the salt deliverable to the plaintiff or his assigns, and to send it and the invoice to De Mattos, together with a draft for his acceptance.

In this case the plaintiff had put on board 1,007 tons of salt when he heard that De Mattos had stopped payment; he immediately stopped loading, and proposed to the defendants either that he should complete the loading on his own account, or that they should purchase the salt already on board, or give him a bill of lading for that quantity; but defendants declined all his proposals and sailed for Calcutta, where the salt was sold at a loss by their agents. It was contended for the defendants that the property in the salt had passed to De Mattos by delivery on board the vessel (a), and that taking the mate's receipts was nothing more than a means of ascertaining the quantities. The jury found a verdict for the plaintiff on the ground that he did not intend when he put the salt on board to pass the property to De Mattos or to part with control of it, and the Court refused to grant a new trial.

In Campbell v. The Mersey Docks and Harbour Board (b), in 1863, the plaintiff had purchased 250 bales of cotton out of a cargo of 500. When the 500 bales were landed, they were all marked in one way and not numbered, but the dock company's servants numbered them at the time of landing. The company gave the plaintiff a warehouse certificate for 250 bales, describing them as numbered from 1 to 250. Subsequently the company informed the plaintiff that 200 of the 250 bales numbered 1 to 250 had been inadvertently delivered to other persons, and offered to substitute other numbers, which offer the plaintiff declined. The jury found that the only evidence of an appropriation was a mistake of the company's clerk, and on the motion it was held that the property had not passed.

In Ex parte Pearson, in re The Wiltshire Iron Co. (c), in 1868, Pearson, who was unaware that a petition for winding

(a) See Moakes v. Nicholson, post, p. 169; 34 L. J. C. P. 273; 19 C. B. N. S. 290. (b) Campbell v. Mersey Docks, 14 C. B. N. S. 412.

(c) Ex parte Pearson, In re Wiltshire Iron Co., 37 L. J. Ch. 554; 3 Ch. App. 443.

up

The Wiltshire Iron Co. had been presented, purchased 200 tons of iron from the company, who placed the iron in trucks and sent invoices to Pearson signifying the consignment. The trucks were moved from the company's works on to the line of the Great Western Railway Co., in whose custody they were when the winding-up order was made. It was held the property had passed.

In Jenner v. Smith (a), in 1869, the plaintiff showed the defendant a sample of hops of which he then had three The defendant pockets lying in a London warehouse.

agreed to buy two of them at £7 15s. per cwt. they were to be left in the warehouse until he wrote for them. Some days afterwards, the plaintiff instructed the warehouseman to set apart two of the pockets, which was done, and a card with the defendant's name was placed on them, but they were not transferred in the warehouse books. Subsequently the plaintiff sent the defendant an invoice showing the weights, but there was nothing to show that the defendant had abandoned his right to see that the bulk corresponded with the sample, or to see them weighed, and the Court held the property had not passed; the defendant had neither assented to the seller's appropriation, nor given the seller authority to appropriate for both. Keating, J., at p. 276, pointed out the distinction between this case and Aldridge v. Johnson (ante, page 142) where "the bulk of the barley had "been inspected and approved, and all that remained to be "done was to sever and measure the portion to be appro66 priated to the vendee; and that the vendor had filled a "number of sacks which had been sent by the vendee, "thereby measuring it. The barley which was to be appro

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priated to the fulfilment of the contract was, therefore, "severed from the bulk and measured with the assent of "both parties. There could be no doubt that the property "in the barley so dealt with passed."

In Stock v. Inglis (b), in 1882, the question was considered

(a) Jenner v. Smith, L. R. 4 C. P. 270.

(b) Stock v. Inglis, 9 Q. B. D. 708; 12 Q. B. D. 564; 10 App. Ca. 263.

at great length, whether the property in bags of sugar had passed where the seller had not at the time of the loss elected which of certain bags to appropriate to a particular

contract.

So far those contracts have been spoken of which operate in law as conveyances of the property, but where the contract is not one which is intended to operate as an assignment or conveyance of the property, but is only a mere promise that an assignment will be made if a certain event shall happen, then, in order that the equitable interest which such a promise is intended to give may be created and pass, the goods must be specific, to the degree indicated in the judgments in the following case, just as they must be specific where it is intended that the property shall pass. This is decided by the case of Holroyd v. Marshall (a), in the House of Lords, in 1862, where it was argued that no interest passed because the goods were never sufficiently specified for the contract to attach upon them. Taylor, the occupier of a mill, covenanted to assign to Holroyd, his landlord, machinery which was not in existence at the date of the covenant, but which might thereafter be brought by him into the mill, and the principal question was, whether a mere covenant to assign would be effectual to pass any interest at all; but there was a second question, viz., assuming that it would be effectual to pass an interest in the goods, provided they were sufficiently specific, whether the machinery was sufficiently specific in this particular case. The House of Lords held that the covenant was effectual to pass an equitable interest, and that the goods were sufficiently specific.

The judgment of Lord Westbury, L. C., is most instructive, and is again cited in the chapter on Equitable Assignments (b). He said, "A contract for the sale of goods, as, "for example, of 500 chests of tea, is not a contract which "would be specifically performed, because it does not relate "to any chests of tea in particular; but a contract to

(a) Holroyd v. Marshall, 33 L. J. Ch. 193; 10 H. L. R. 191.
(b) Post, p. 291.

L

"sell 500 chests of the particular kind of tea which is "now in my warehouse in Gloucester, is a contract relating "to specific property, and which would be specifically "performed."

In Lunn v. Thornton (a), in 1845, there was a covenant which was in terms, that one party "sold and delivered " goods which he then had or thereafter might have. The action was trover, which put in issue the fact whether the property in the after-acquired goods had passed, and the Court of Common Pleas held that it had not. This case is

quite consistent with the preceding one. At law the property

had not passed.

The case of Belding v. Read (b), in 1865, was hardly consistent with the law as laid down in Holroyd v. Marshall (c), and was overruled by the House of Lords, in 1888, in the case of Tailby v. Official Receiver (d). In Belding v. Read the debtor made an assignment of all his household furniture, &c., then being or thereafter to be upon his dwelling-house at Reedham or elsewhere in the United Kingdom. Subsequently one of his creditors seized goods in the house, and a horse and gig standing at livery at Yarmouth, all of which had been purchased after the agreement. The Court held that the agreement did not attach on those goods, for they had never become specific as in Holroyd v. Marshall (c); but in Tailby v. Official Receiver (d) the House of Lords expressed the opinion that the learned Judges who decided the case had misapprehended the doctrine laid down by Lord Westbury in Holroyd v. Marshall, being possibly misled by the reference made by the noble Lord to specific performance.

Leatham v. Amor (e), in 1878, was a very similar case to, Holroyd v. Marshall (c).

(a) Lunn v. Thornton, 14 L. J. C. P. 161; 1 C. B. 379. (b) Belding v. Read, 34 L. J. Ex. 212; 3 H. & C. 955.

(c) Holroyd v. Marshall, 33 L. J. Ch. 193; 10 H. L. R. 191.

(d) Tailby v. Official Receiver, 58 L. J. Q. B. 75; 13 A. C. 523; see also In re Clarke, Coombe v. Carter (1887), 56 L. J. Ch. 981; 36 Ch. D. 348; and the chapter on Equitable Assignments, post.

(+) Leatham v. Amor, 47 L. J. Q. B. 581. See also Lazarus v. Andrade, in