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of lading was specially indorsed on certain con- Biiisof ditions, which conditions are not complied with (r). "' 8 For, although, p?*imd facie, by shipping the goods on behalf of the consignee, and indorsing the bill of lading, the property is transferred absolutely, yet this is subject to be controlled by the special agreement or the evident understanding between the parties (s).

It seems that, after the consignment has been once made in favour of any party, nothing except the insolvency of the consignee can give the consignor a right of countermanding the goods. Thus, where the bill of lading expressed that the cargo was consigned to J. S., and on his account and risk, and the consignor, being apprehensive, from the refusal of the agent to accept the drafts on behalf of J. S., that the insolvency of the latter was probable, afterwards procured a countermand

(r) See Barrow v. Coles, 3 Campb. 92. The case even goes further. The bill of lading had a special indorsement by the consignor, that the cargo was to be remitted to J. S. in case he accepted and paid the bill drawn for the price, otherwise to the holder of the draft. The cargo was accordingly remitted to J. S., who accepted the bill but failed to make payment when due: it was held, that the holder of the draft might maintain trover against the party to whom J. S. had indorsed the bill of lading for a valuable consideration. A fortiori, therefore, trover would have been maintainable against J. S.; and the case places his bond fide indorsee in the same situation: for under the circumstances he ought to have made inquiry whether the condition had been performed.

(s) Hibbert v. Carter, 1 T. R. 745. See Brandt v. Bowlby, % B. & Ad. 932.

Biiu of of the original consignment, and an order to the master to deliver the cargo to a different person, to be indorsed on the bill of lading,—it was held, that he was not justified in so countermanding the consignment, and that the original consignee, therefore, was entitled to the cargo (t). So, where, at the time that the consignment was made and the invoice and bill of lading were sent to the plaintiff, the consignor drew bills on the consignee nearly to the value of the cargo, and the consignee refused to accept the drafts (a large balance being due to the latter at the time), it was held that this did not amount to an implied refusal of the consignment^).

Trover not Trover is not maintainable by the purchaser if able when anything remain to be done between him and the remain""! seller to ascertain the price, quantity, or individuality of the goods, before the commodity pur

(t) In re the Constantia, Henricksen, 6 Rob. Adm. 321. See the luminous judgment of Sir William Scott. "It is not an unlimited power that is vested in the consignor to vary the consignment at his pleasure in all cases whatever; but it is a privilege allowed to the seller for the particular purpose of protecting him against the insolvency of the consignee;" id. 326. "The alteration may be made provisionally, without actual insolvency; but if the insolvency does not take place, the act which has been done is a mere nullky, and the seller has exercised a power to which the law does not ascribe any legal effect;" id. 330. And see the cases cited from Emerigon, id. 328, 329. Wallet) v. Montgomery, 3 East, 585.

(«) Anderson v. Clark, 2 Bingh. 20.

chased is to be delivered (x). Thus, where a When main

, ., tamable.

chattel is made to order, the property does not pass until completion and delivery; therefore, trover by the vendee cannot be supported (y). But if payment has been made for the chattel ordered, and the purchaser has been allowed to exercise acts of ownership after it has been finished, the property will be transferred so as to enable him to bring trover(z). And where the chattel made to order was to be paid for by instalments during the progress of the work, it was held that such payments specifically appropriated in the purchaser the parts respectively for which the successive payments were made (a).

So, the action cannot be maintained where the quantity is yet to be fixed by measuring or weighing (3), or where anything is yet to be done which can affect the quantity which has been agreed to be delivered to the purchaser (c). It is immaterial

(i) Selw. N. P. 1300; 2 WW. Saund. Rep. 471.

(y) Mucklow v. Mangles, 1 Taunt. 318. See 8 B. & C. 277; 10 Bingh. 99.—Supra.

(z) Carruthers v. Payne, 5 Bingh. 270; S. C. 2 M. & Payne, 429.

(a) Woods v. Russel, 5 B. & A. 942, 946. See 8 B. & C. 282.

(6) White v. Wilks, 5 Taunt. 176; Shepley v. Davis, 5 Taunt. 617; S. C. 1 Marsh. 252; Hanson v. Meyer, 6 East, 614; Austen v. Craven, 4 Taunt. 644; Busk v. Davis, 2 M. & S. 397; Withers v. Lys, Holt, N. P. C. 18; S. C. 4 Campb. 237.

(c) Wallace v. Breeds, 13 East, 522 ; Rugg v. Minett, 11 East,

when main- whether what remains to be done is to be done by

tainable. 11.1*1 1 • 1 1

the vendor himself, or by some third party, such as a wharfinger or other bailee in whose custody the goods are deposited, provided the vendor continues to be still in fact interested (d), because in such case the bailee is the mere agent of the vendor, and his act is the act of the principal. But if everything is in effect done as between the buyer and seller, though something remain to be done between the buyer and a third party, in which the seller is not interested, the property passes sufficiently to support trover;—thus, where the seller, having ten tons of oil (the quantity being admitted) in the warehouse of J. S., gave the plaintiff an order to receive that quantity from J. S., it was held that the property in the oil passed to the plaintiff, although the ten tons had still to be separated from the bulk of the property of J. S.(e). Again, where the vendor gave the plaintiff an order on a wharfinger for the delivery of twenty sacks of flour, which order when presented to the wharfinger was accepted generally, and five sacks

(rf) Hanson v. Meyer, 6 East, 614; Busk v. Davis, 2 M. & S. 897.

(e) Whilehouse v. Frost, 12 East, 614. The decision itself, indeed, has been doubted (4 Taunt. G46; 5 Taunt. 179), because it went to put a sub-vendee in a better plight than the original purchaser; which is unreasonable, and cannot be supported, (Austen v. Craven, 4 Taunt. 644): but perhaps, to the extent laid down in the text, the authority is not overruled. See jtr Lord Ellenborough, C. J., 13 East, 525.

were delivered at the time, it was held, that trover when mainfor the residue was maintainable against the wharfinger, and that his unrestricted acceptance of the order precluded him from afterwards setting up, as a defence to the action, that the remaining fifteen sacks were not selected and appropriated(/).

As long as the vendor's lien for the price of the Not while goods continues, the purchaser has not the right of lien conpossession, and cannot maintain trover(g). Where it is stipulated at the time of the contract, that payment shall be made immediately, the right of possession does not pass, and trover cannot be maintained until payment (A). So it is, where a

(/) GUlett v. Hill, 4 Tyrwh. 290; S. C. 2 Cr. & Mees. 580.

(g) See above of Lien, p. 181. It seems to be doubtful whether under the New Rules of pleading (Rules Hil. T. 4 Will. IV.), lien as a ground of defence to an action of trover should be specially pleaded. Vid. per Cur., Stancliffe v. Hardimck, 3 Dowl. P. C. 776, 777; S. C. 2 Cr. Mees. & R. 1, 12. The rule provides that "in actions on the case, the plea of not guilty shall operate as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement, and no other defence than such denial shall be admissible under such plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration." And, " in an action for converting the plaintiff's goods, such plea will operate as a denial of the conversion only, and not of the plaintiff's title to the goods." "All matters in confession and avoidance shall be pleaded specially as in actions of assumpsit."

(4) Bloxham v. Sanders, 4 B. & C. 941.

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