the freight, and employed the defendants, a railway company, to carry the goods for him. The Court held that the property had not passed, and that the defendants, in an action of trover, were not estopped from showing this.

In the following case of Brown v. Hare (a), in 1858, the consignors took the bill of lading in their own names, but the Court held that this had not been done for the purpose of retaining the property.

The defendants, who were merchants in Bristol, entered into a contract with the plaintiffs, who were merchants at Rotterdam, through a broker in Bristol, named Goolden, to purchase 20 tons of rape oil, of which 10 tons were to be shipped free on board at Rotterdam in September, to be paid for by a bill at three months, on delivery to the defendants of the bill of lading. On the 8th, the plaintiffs shipped 5 tons on board the Sophie, at Rotterdam, and the captain signed a bill of lading, making the oil deliverable "unto shippers' "order or their assigns.' The bill of lading was indorsed by the plaintiffs, "deliver the contents to the order of "Messrs. Hare and Co.," and an invoice was made out stating the oil to have been shipped for account of Hare and Co.; and on the same day, the 8th, the plaintiffs sent by post to Goolden the bill of lading, an invoice, and a bill of exchange, drawn on the defendants, all of which Goolden received on the evening of the 10th after business hours. On the night of the 9th, the Sophie was lost in the Bristol Channel. On the morning of the 11th, Goolden, who knew of her loss, went to the defendants' office and there left the bill of lading, invoice, and bill of exchange. The defendants returned them shortly afterwards, saying they were not liable to pay for the oil. The Court held that the property had passed to the defendants, and that the plaintiffs were entitled to recover, and the judgment was affirmed in the Exchequer Chamber. Erle, J., delivering the judgment in that Chamber, said: "The real question has been on the intention with which the "bill of lading was taken in this form: whether the consignor

(a) Brown v. Hure, 27 L. J. Ex. 372; 3 H. & N. 484; 29 L. J. Ex. 376: 4 H. & N. 822.

"shipped the goods in performance of his contract to place "them free on board'; or for the purpose of retaining a "control over them and continuing to be owner contrary to "the contract, as in the case of Wait v. Baker (a), and, as is "explained in Turner v. The Trustees of the Liverpool "Docks (b), and Van Casteel v. Booker (c). The question "was one of fact, and must be taken to have been disposed "of at the trial: the only question before the Court below "or before us being, whether the mode of taking the bill of "lading necessarily prevented the property from passing. "In our opinion it did not, under the circumstances.'

In Joyce v. Swan (d), in 1864, M'Carter, of Londonderry, offered to buy 100 tons of guano from Seagrave and Co., of Liverpool, and Seagrave and Co. wrote to him on the 26th of February, saying they would send him 115 tons which they hoped to have on board the Anne and Isabella in a few days. On the 2nd of March, the plaintiff at M'Carter's request effected an insurance on the 115 tons. On the 3rd of March, M'Carter wrote a letter to Seagrave and Co., grumbling about the price. On the 4th of March, Seagrave and Co. took the bill of lading making the guano deliverable at Londonderry to their order or assigns, and made out an invoice as follows: "Particulars of phospho-guano delivered to account "of W. M'Carter, Esq." The bill of lading and invoice were sent to a partner in the house of Seagrave and Co., then staying at Belfast. On the evening of the 4th, but whether before or after posting the bill of lading the report does not say, Seagrave and Co. received M'Carter's grumbling letter, and, fearing lest he should refuse the guano, they insured it in their own names. On the 7th the partner in Belfast, who was going ou a visit to M'Carter, took the bill of lading with him, and M'Carter said he would accept the cargo, and on the 9th, on getting back to business, the bill of lading was indorsed to him. It turned out afterwards that the Anne

(a) Wait v. Baker, 17 L. J. Ex. 307; 2 Ex. 1.

(b) Turner v. Trustees of Liverpool Docks, 20 L. J. Ex. 393; 6 Ex. 543. (c) Van Casteel v. Booker, 18 L. J. Ex. 9; 2 Ex. 691.

(1) Joyce v. Swan, 17 C. B. N. S. 84.

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and Isabella had been wrecked. The defendant contended that M'Carter had no insurable interest (a) in the guano, but the jury found that Seagrave and Co. had put it on board with the intention of passing the property to him, and found for the plaintiff. The Court refused to enter a nonsuit or to grant a new trial, Williams, J., saying, "It was a question "for the jury, and I think they were warranted in assuming "that the guano was put on board pursuant to that contract, "with the intention of transferring the property from the "sellers to the buyer. It is true that the bill of lading was "taken in the names of the sellers, and at the time the insurance was declared was unindorsed. That was a circumstance which was well worthy the attention of the jury, and "might have induced them to come to a contrary conclusion. "But, if they thought that, notwithstanding this, there were "other circumstances sufficiently cogent to induce them to "come to the conclusion that the property was intended to "pass, I am of opinion that the mere circumstance of the "form of the bill of lading and of the invoice being trans"mitted to the partner then in Ireland, instead of to M'Carter "direct, was not sufficient to annihilate the other evidence in "the cause, though it might induce the jury to pause. The "cases of Wait v. Baker (b), and Brown v. Hare (c), appear "to me clearly to establish the distinction that, if from all "the facts it may fairly be inferred that the bill of lading. was taken in the name of the seller in order to retain "dominion over the goods, that shows that there was no "intention to pass the property; but if the whole of the "circumstances lead to the conclusion that that was not the 'object, the form of the bill of lading has no influence on "the result."

In Moakes v. Nicholson (d), in 1865, Pope, of London, having agreed to purchase coal from Josse at Hull, chartered a

(a) Seagrave v. Union Marine Insurance Co., 35 L. J. C. P. 172 ; L. R. 1 C. P.

305.

(b) Wait v. Baker, 17 L. J. Ex. 307; 2 Ex. 1.

(c) Brown v. Hare, 27 L. J. Ex. 372; 3 H. & N. 484; 29 L. J. Ex. 376; 4 H. & N. 822.

(d) Moakes v. Nicholson, 34 L. J. C. P. 273; 19 C. B. N. S. 290.

ship and sent her to Hull. Josse put the coals on board, and wrote to Pope enclosing an invoice and an unstamped bill of lading, by which the cargo was made deliverable to Pope or order; Josse retained a stamped bill of lading, and sent another unstamped bill to his agent, the defendant, who obtained possession of the coal when the ship arrived in the Thames, on the ground that Pope had not paid cash according to contract. Pope appears to have sold the coals to the plaintiff before receipt of the unstamped bill of lading, which he subsequently indorsed and delivered to him. There was a dispute as to what were the terms of the contract, and it was left to the jury to say what they were, and the jury found that the contract was for cash against bill of lading, and that Josse did not intend to pass the property to Pope until cash had been paid (a). The Court held that the property had not passed to Pope, and that the plaintiff was in no better position than Pope. Erle, C. J., said: "The delivery of the coals on "board a ship chartered by Pope has no effect whatever in pass"ing the property. If the intention was that the ship should "be regarded as the warehouse of Josse until the happening of "the event contemplated, viz., the payment of the price, the "putting the coals on board did not alter the position of the contracting parties" (b).

It is worth noticing that neither the terms of the contract nor the complete correspondence are given in the report, yet, as appears from the judgment of Erle, C. J., it was from these that the jury drew the conclusion that there was no intention to pass the property.

In Ogg v. Shuter (c), in 1875, the plaintiffs had contracted to purchase potatoes from one Loutré in France to be delivered "free on board" at Dunkirk at a certain price. A payment of 307. was made, and the potatoes were shipped on board the Blonde in sacks sent over by the plaintiffs, and a bill of

(«) This is so stated in the judgment of Erle, C. J.

(b) See Falk v. Fletcher, ante, p. 142; 34 L. J. C. P. 146; 18 C. B. N. S. 403.

(c) Ogg v. Shuter, 44 L. J. C. P. 161; 45 L. J. C. P. 44; L. R. 10 C. P. 159; L. R. 1 C. P. D. 47.

lading taken to order. Loutré indorsed the bill of lading to the defendant with instructions to exchange it for an acceptance for the balance. The plaintiffs had some reason to think that the quantity of potatoes shipped was 16 sacks short, and on this ground declined to accept for the full amount, but offered to do so if, when unloaded, it should appear that the full quantity had been loaded, or to accept at once for the full amount less the price of 16 sacks. The defendant declined, and sold the potatoes. The Court of Common Pleas held that the property had passed to the plaintiffs; but was reversed in the Court of Appeal, by Cairns, L. C., Kelly, C. B., Bramwell, B., and Blackburn, J. Cairns, L. C., delivering the judgment of the Court, said: "Where the shipper "takes and keeps in his own or his agent's hands a bill of lading in this form to protect himself, this is effectual so "far as to preserve to him a hold over the goods until the "bill of lading is handed over on the conditions being ful"filled, or at least until the consignee is ready and willing "and offers to fulfil these conditions, and demands the bill of "lading. And we think that such a hold retained under the "bill of lading is not merely a right to retain possession till "those conditions are fulfilled, but involves in it a power to "dispose of the goods on the vendee's default, so long at least as the vendee continues in default. It is not necessary in "this case to consider what would be the effect of an offer "by the plaintiffs to accept the draft and pay the money "before the sale, for no such offer in this case was ever "made" (a).

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In Gabarron v. Kreeft (b), in 1875, the defendant had contracted to purchase from Munoz all the ore to be obtained from a certain mine within twelve months. Various vessels had been loaded by Munoz, and at the time when the Trowbridge arrived to take on board her cargo, payments had been made in advance, so that Munoz would not have been entitled to any further payment in respect of her cargo. Munoz had ore in stock which he ought to have shipped,

(a) See also Shepherd v. Harrison, 38 L. J. Q. B. 105 and 117, and post, p. 214. (b) Gabarron v. Kreeft, 44 L. J. Ex. 238; L. R. 10 Ex. 274.