That reasonable time to furnish a vessel was not the test. That the flour was under the plaintiffs' control. That the defendants had no lien thereon, nor would they have had after parting with the delivery order had they not been paid, which affords a good test not to be confounded with a right to stop in transitu. That there were no charges against the flour, and so it was delivered free, and ready to be put on board when plaintiffs provided a vessel to receive it. That nothing more remained to be done by the plaintiffs. to pass the property, and that there was no doubt of the identity of the flour; referring the Court to the evidence. As to parties, that according to Goodenough's evidence, McIntyre had nothing to do with the purchase, and that the action should have been in the name used by the bought and sold notes, or of those interested in fact, and that either way too many had joined as plaintiffs.-Brown on Actions, 47.

MACAULAY, C. J.-Time has not admitted of my going through the various cases bearing on the question; but the amount is large, and entertaining no doubt upon the rule of law applicable to the facts in evidence, I think it better to express my opinion at once, especially as it results in favor of making the rule absolute and granting a new trial.

The flour had not been actually delivered, nor was it in the plaintiffs' possession at the time of the loss, any further than the right of property and of possession being combined draws the possession in construction of law to the owner; but, assuming the 1000 barrels of flour to have been a specific appropriated 1000 barrels, I think the property therein had passed to, and vested in the plaintiffs, and was at their risk when the loss occurred. Many of the cases will be found cited in 1 U. C. R. C. P. 267, and I have noted many others, of which I would more particularly refer to Whitehouse v. Frost (12 East 614, 618), and the antecedent decisions which that case refers or will lead to.-Holt N. P. C. 18and note; Busk v. Davies (2 M & S. 397); Simmons v. Swift (5 B & C 863;) Tarling v. Baxter (6 B. & C. 360, 388; Gow. N. P. C. 58); Dixon v. Yates (5 B. & Adol. 313); Greaves v. Hopkins (2 B. & Ald. 131,) much in point; Swanwickv. Sothern, (9 A. & E. 895); Martindale v. Smith, (1 Q.

B. 389); Alexander v. Gardner (1 Bing, N. S. 671); Wood v. Tassel (6 Q. B. 234, 8 Ex. R. 814); Moore v. Campbell (23 L. J. Ex. 310, 26 Eng. Rep. 523-6.) On the undertaking to deliver F. O. B. "free on board," Austin v. Craven (4) Taunt. 644); Wait v. Baker (2 Ex. R. 1).

The last case may be considered as in favor of the plaintiffs' argument that the flour remained at the defendants' risk until delivered free on board the plaintiffs' vessel; but it appears to me the obligation so to deliver was not a condition precedent to the passing and vesting of the property in the plaintiffs, but a collateral and superadded undertaking to be performed afterwards: I do not think it depended upon the presentation of the delivery order to the warehouseman and his acceptance thereof, but that the property passed by virtue of the deposit of the flour with the warehouseman, its appropriation to the plaintiffs, their payment of the price, and acceptance of the delivery order. Although no specific property passed by the original broker's contract of sale, I think it did pass when a specific quantity was warehoused, appropriated to, and paid for by, the vendees. In expressing this opinion, I of course infer that a specific 1000 barrels of flour had been so appropriated and paid for. That fact seems to have been considered as established at the trial, and forms a material one in a case of this kind. There was express evidence on that point, and the jury were evidently satisfied of the fact, though not seemingly made a distinct question in the various points submitted to the jury. Without therefore considering whether there was sufficient proof of the actual delivery and receipt in fact of fifteen barrels of flour, in part of, and on account of the flour mentioned in the delivery order, which I am not prepared to say there was, it appears to me that if the flour in question was a distinct identified lot of 1000 barrels deposited in Hackett's warehouse, previously owned by defendants, and by them appropriated to the plaintiffs in fulfilment of their contract, the right of property passed to the plaintiffs upon payment by them of the price, and the receipt by them of the delivery order, and that it remained thenceforward at their risk, notwithstanding that term of the contract of sale which bound

the defendants to deliver it F. O. B., or free on board; consequently that the rule should be made absolute for a new trial without costs.

I do not think it depends upon whether Hackett had previously accepted the order or held the flour, prepared to deliver it to the defendants at the time they transferred the delivery order to plaintiffs. There is no evidence of his having been actually apprised of such transfer until after the loss, but in my opinion he had no discretion in the premises; so far as I see, he was bound to deliver it to the owner upon request and payment of his lawful charges, and the plaintiffs had become the owners by the contract of sale, appropriation and payment-if, as I assume, it was Cluxton's flour originally, and had been sold by him to the defendants, and by them to the plaintiffs, without any right to control the delivery by the warehouseman to the plaintiffs under the delivery order. That the defendants owned the flour as vendees of Cluxton was not disputed at the trial.

The affidavits being so strongly objected to, I paid no particular attention to them, especially as my opinion is formed upon the evidence given at the trial irrespective of them; so far as they contain new matter, they operate in the defendant's favor on the fact of identity. As to the misjoinder of parties I thought little of it, deeming it immaterial in my view of the case, and being quite inclined to consider the objection not tenable if it was the only point in the case. I did not consider the defendant's undertaking to deliver free on board prevented the right of property passing to and vesting in the plaintiffs, and with it the risk; and, as to the first or special count that, it having become impossible by an event for which the defendants were not responsible, occurring after the property and risk had passed to the plaintiffs, for the defendants to deliver free on board, or to do anything more than they had done, and that they had done all incumbent upon them, they were excused or exonerated by reason of the destruction and loss of the flour from afterwards delivering it free on board-a thing that had become impossible by reason of an accident for which they were not answerable.

Of course I also thought the payment for, and acceptance

of the delivery order for the flour after the day appointed for its delivery-viz., 1st of June-constituted a waiver of the time, and protected the plaintiffs from recurring to the defendants' failure in that respect after the loss had happened. The question is, at whose risk was the flour on the 14th June, before and at the time it was consumed by the fire? For the purpose of that question it should be regarded just the same as if the flour had been delivered on the 1st of June instead of the 6th or 7th, and that the fire had happened on the 8th or 9th of the month instead of the 14th.

MCLEAN, J. and RICHARDS, J. concurred.

Rule absolute.

SUPPLE V. GILMOUR.

Delivery and acceptance.

S. being the owner of a certain raft, measured by the supervisor of cullers, and whose specification thereof Supple then had, sold the same to Gilmour, under an agreement in the words following:- "Sold Allan Gilmour & Co., a raft of timber now at Carouge, containing white and red pine, the quantity about 70,000 feet, to be delivered at Indian Cove booms; price for the whole sevenpence three-farthings per foot, payments one-third cash, sixty and ninety days date. John Supple. A. Gilmour & Co. Quebec, 20th October, 1853."

On the 24th of October the raft was taken in tow by a steam-tug, and as it approached the Indian Cove booms belonging to Gilmour an agent of Gilmour sent a messenger directing the raft to be towed around the long wharf, where he said there would be men and ropes to take charge of it; that it was towed round the long wharf, but there were neither men nor ropes of Gilmour's there to secure it, but the agent of Supple with his (defendant's) ropes tied the raft to the booms of Gilmour. That during the night the agent of Supple being apprehensive that the raft was not properly secured, he represented that fact to the agent of Gilmour, who sent him to the foreman of Gilmour at the booms to have it safely secured. That the foreman and two others of Gilmour's men got ropes, &c., and as they thought securely fastened the timber. That later in the night the raft parted from the boom, and was scattered along the river and much of the timber lost, although a portion was saved by the servants of Gilmour and at his expense.

Held, That at the time of the loss the property was at the risk of Gilmour & Co.

Writ issued 15th March, 1854. Declaration 12th June, 1854. SPECIAL ASSUMPSIT.-First count states that, to-wit, on the 20th October 1853, in consideration that plaintiff, at defendant's request, would sell and deliver to him a raft of timber then at Carouge, containing white pine, about 71,000 feet, and deliver it at Indian Cove booms, at the rate or price of 73d. per foot, amounting to £2,307 18. 7d., he, defendant, promised plaintiff to pay him therefor at that rate as follows:

one-third cash, one-third at sixty days, and one-third at ninety days from the delivery thereof, whenever after such delivery requested. That plaintiff did afterwards sell and deliver the said quantity of goods at the place and on the terms aforesaid; yet plaintiff saith that defendant did not, though requested, pay plaintiff the said price of said goods, or any part thereof, &c. Second count-£5000 for goods sold and delivered. Third count.-£5000 account stated.

Fourth count.-£5000 interest.

Pleas, 20th June, 1854:

First-Non assumpsit.

Second, to first count.-That plaintiff did not deliver the said quantity of goods in said first count mentioned, or any part thereof to defendant, pursuant to said contract, as alleged, &c.; on which pleas the plaintiff joined issue. The cause was tried before Mr. Justice Richards, at the last Spring assizes, Bytown. It appeared in evidence that in October, 1853, the plaintiff was possessed of and owned a raft of white and red pine timber, principally white, lying in the booms at Carouge, a cove eight miles above Quebec, on the River St. Lawrence. That it was measured off on account of the owner by the supervisor of cullers and his servants, under the P. S. 8 Vic. ch. 49; whose specification was dated the 15th October, 1853, and represented in quantity, stating each piece in detail, to be 1,077 pieces of white pine, containing 67,539, 4, 5; and 104 pieces of red pine, containing 3,906, 3, 7=71,445, 8. That defendant was one of the firm of Gilmour & Co., lumber merchants, possessed of and owning booms above Quebec, at a place called Indian Cove, on the River St. Lawrence; such booms being intended to secure timber delivered or placed therein That the specification was placed in the hands of one of the defendant's firm to examine or consider, and that on the 20th October, 1853, an agreement was entered into in the following terms: "Sold Allan Gilmour & Co. a raft of timber, now at Carouge, containing white and red pine, the quantity about 71,000 feet to be delivered at Indian Cove booms; price for the whole 73d. per foot, payments one-third cash, sixty and ninety days; date Quebec, 20th October, 1853. Signed John