The case of In re Count D'Epineuil (a), in 1882, where Fry, J., held that a charge in favour of a creditor of all present and future personalty was effectual only to charge the property which belonged to the debtor at the date of the agreement (b), followed Belding v. Read, and was also overruled by Tailby v. Official Receiver (supra).

There may possibly be some doubt whether the true principle of those cases, which settle that goods dispatched by the seller are the property of the buyer, is, that the seller has, by dispatching them, exercised and determined a right of election, though it is difficult on any other principle to reconcile them with those cases which decide that a delivery to a carrier, and a receipt by him, do not make a contract good within the Statute of Frauds or the Sale of Goods Act. For if the principle were that the carrier had authority from the buyer to consent to an appropriation, he would surely have authority also to accept the goods within the meaning of the statute, but that it is settled he has not (c).

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That the dispatch does vest the property in the buyer there can be no doubt. As long since as 1803, Lord Alvanley, in delivering the judgment of the Court, in Dutton v. Solomonson (d), said: "When this point was first mentioned I "was surprised, for it appeared to me to be a proposition as "well settled as any in the law, that if a tradesman order goods to be sent by a carrier, though he does not name any "carrier, the moment the goods are delivered to the carrier "it operates as a delivery to the purchaser, the whole pro"perty immediately vests in him: he alone can bring an "action for any injury done to the goods, and if any accident "happen to the goods it is at his risk.. The only exception "to the purchaser's right over the goods is, that the vendor,

1880, 49 L. J. C. P. 847; 5 C. P. D. 318; Clements v. Matthews, in 1883, 52 L. J. Q. B. 772; 11 Q. B. D. 808; Reeves v. Barlow, in 1884, 11 Q. B. D. 610; 12 Q. B. D. 436.

(a) In re Count D'Epinenil, 20 Ch. D. 758.

(b) In re Panama, New Zealand and Australian Royal Mail Co., in 1870, 39 L. J. Ch. 482; 5 Ch. App. 322.

(c) Ante, p. 23.

(d) Dutton v. Solomonson, 3 B. & P. 582; and see Sale of Goods Act, s. 32.

"in the case of the former becoming insolvent, may stop "them in transitu. On this part of the case, therefore, the "Court has never entertained any doubt." It is to be observed that Lord Alvanley joins two propositions together (both perfectly undoubted law): that when goods are by agreement to be sent by a carrier, the delivery of the goods. to the carrier amounts to a prima facie appropriation of the goods to the buyer, and vests the property in him, and that it is a delivery to the buyer; that the goods are both sold and delivered. In most of the cases both of these things existed; at the moment of time when it became necessary to determine whose property the goods were, they were both sold and also delivered, but to the carrier, and therefore only in transitu: but it was not so in Fragano v. Long (a), where the goods were appropriated, but were still in the hands of the seller's agent. There was in that case an objection made that the property remained in the seller, because he and his agents still retained the possession of the goods, so as never to have parted with his rights as an unpaid seller. Bailey, J., expressly says that there might be a difficulty as to that, if the seller and his shipping agents were setting up an adverse interest, but not in the present case. The decision, therefore, in that case was, that the goods were bargained and sold, and that it was not material to inquire whether the transitus had commenced or not. This is not a merely theoretical distinction: a trader who receives an order for goods of a particular description, to be dispatched by sea, very often with a view of preserving his lien, has the bills of lading made out to his own order, so as to secure that the goods shall not be delivered till paid for, and it is worth consideration under what circumstances by doing so he prevents the shipment operating as an appropriation of the specific goods, and so retains in himself the general property, and consequently the liability to loss during the voyage.

If the reason why the delivery of the goods to the carrier prima facie appropriates them to the contract of sale and vests

(a) Frayano v. Long, 4 B. & C. 219, ante, p. 139.

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the property in the buyer, is that the carrier is an agent of the buyer, having authority to receive the goods for him, it follows that when the carrier receives the goods under a contract with the seller, by which he agrees to keep possession of the goods subject to the seller's orders, the property is not transferred, for in such a case it is clear that the carrier does not receive the goods as an agent for the buyer.

But this consequence does not necessarily follow, if the reason why the delivery of the goods to the carrier appropriates the goods and vests them in the buyer, is that it amounts to a determination of a right of election given to the seller by the contract under which he is to dispatch the goods. The seller's attempt to retain a right of possession may sometimes prevent the delivery to the carrier from operating as a determination of the seller's right of election, but it will not necessarily do so. Whether it does or not must depend upon the intention with which they were delivered, and the terms of the contract by which the seller is bound to dispatch them.

In some cases the terms of the agreement of sale prevent any question from arising. Thus in Swain v. Shepherd (a), in 1832, at Nisi Prius, before Parke, B., in which the seller sued the carrier for the loss of the goods, the learned Judge told the jury that if they believed the evidence that the goods were sent on a contract of sale, if approved of, if not, to be kept to be returned, the plaintiff was the proper party to sue. It is quite obvious that the circumstance of a carrier intervening in this case was purely accidental, and had nothing to do with the vesting of the property. If the seller had literally with his own hands delivered them into the hands of the buyer on those terms, the property must have remained in the seller until the buyer had approved of the goods, or failed to return them.

In all cases the terms of the agreement are of great consequence, for the first question is, whether the goods have been appropriated pursuant to the authority conferred by the

(a) Swain v. Shepherd, 1 M. & R. 223.

agreement, so as to vest the general property in the buyer, and then it may become a further question how far the terms with which the seller has clogged the appropriation are binding or not, and that too must depend upon the terms of the agreement.

Now in considering whether an intention to pass the property existed in any contract, it will be well to contrast two classes of cases-firstly, where the seller delivers direct to the buyer or his agent without the intervention of a third person acting as the agent of neither but as a carrier; and secondly, where such a person does intervene. For the seller's interest in these two cases may probably not be the same.

If no carrier intervenes, the unpaid seller, until he has parted with the possession, has at least his lien for the purchase-money, and may withhold the goods until he is paid, notwithstanding that the property may have passed, and may have, by the terms of the contract with the buyer, a further right to retain possession until the happening of some event, and this also although the property may have passed, and, therefore, in the majority of cases it is to his advantage to have passed the property, and with it the risk (a).

In the case of Sweeting v. Turner (b), in 1872, Blackburn, J., said: "It is thoroughly established that by the "English law, where a bargain and sale is completed with 66 respect to goods, and everything to be done on the part of "the vendor before the property should pass has been performed, then the property vests in the purchaser, although "the vendor still retains his lien, the price of the goods not "having been paid; and any accident happening to the 'things subsequently, unless it is caused by the default of "vendor-any calamity befalling them after the sale is com"pleted-must be borne by the purchaser, and, by parity of "reasoning, any benefit to them is his benefit, and not that "of the vendor."

But where a carrier intervenes, the seller's interest is

(a) See Sale of Goods Act, sections 41, 42, and 43.

(b) Sweeting v. Turner, 41 L. J. Q. B. 58; L. R. 7 Q. B. 310.

rather the other way. If the seller delivers the goods into the carrier's hands, and the property has passed, his lien (a) is gone, for he has parted with the possession to the carrier, and any right given him by contract to withhold possession is not one of which the carrier can, acting on the seller's behalf, avail himself, and the buyer has the right to demand the goods from the carrier. In this case, therefore, it is to the seller's interest that the property should not have passed.

When, therefore, the seller delivers the goods to the carrier instructing him to deliver them to him, the seller, or his agent, at the other end of the journey, the presumption is that the property was not intended to pass. The commonest case of this sort is where the shipper or consignor takes a bill of lading from the captain making the goods deliverable to himself or his agent. This reservation of control over the goods by retaining the property in them has been termed the reservation of the jus disponendi, and is formulated in section 19 of the Sale of Goods Act, as follows:

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"19.-(1) Where there is a contract for the sale of specific goods or where goods are subsequently appropriated to the "contract, the seller may, by the terms of the contract or appropriation, reserve the right of disposal of the goods until "certain conditions are fulfilled. In such case, notwithstand"ing the delivery of the goods to the buyer, or to a carrier or "other bailee or custodier for the purpose of transmission to the buyer, the property in the goods does not pass to the buyer "until the conditions imposed by the seller are fulfilled.

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"(2) Where goods are shipped, and by the bill of lading "the goods are deliverable to the order of the seller or "his agent, the seller is prima facie deemed to reserve the right "of disposal.

"(3) Where the seller of goods draws on the buyer for the "price, and transmits the bill of exchange and bill of lading

(a) A lien is a personal right which cannot be parted with, and continues only so long as the possessor holds the goods: per Parke, B., in Legg v. Evans, in 1840, 6 M. & W. 42. See also Donald v. Suckling, in 1866, 35 L. J. Q. B. 232; L. R. 1 Q. B. 603.