and the sellers, who were unpaid, countermanded the authority to give possession, and the warehousemen, in obedience to this countermand, detained the goods; for this detention the assignees of Dudley brought trover against the warehousemen. At Nisi Prius it was taken as proved that the goods were transferred in the warehouse books before the notice of countermand, and Lord Ellenborough said, "The payment of "rent in these cases is a circumstance to shew on "whose account the goods are held, but it is imma"terial here, the transfer in the books being of itself “decisive. I am clearly of opinion that the assignees "are entitled to recover."

Afterwards, in banc, the defendants produced affidavits to shew that one parcel of the butter was not transferred in the books, and that nothing had ever been done by the warehousemen to indicate assent to the transfer of that parcel; but the Court said it made no difference. Lord Ellenborough said, "After the "note was delivered to the wharfingers, they were "bound to hold the goods on account of the pur"chaser. The delivery note was sufficient without any transfer in their books."

A precisely similar decision was come to by the Common Pleas in Lucas v. Dorrien (a), in 1817, but the Court, besides giving the same reasons for their decision, went into a discussion concerning the effect of the delivery order before notice to the warehouseman, a question which did not arise in the case, and on which see post.

(a) Lucas v. Dorrien, 7 Taunt. 278.

When the bailee has notice of those circumstances under which he is, in the language of Lord Ellenborough, in Harman v. Anderson, "bound to hold the "goods for the purchaser," and is required to hold the goods accordingly, it is pretty clear that mere silence is evidence of acquiescence, and it may be a question whether even an express refusal, if wrongful, would have any effect in preserving the vendor's rights. Probably it would, and the question is of the less practical importance as such a refusal would make the bailee liable.

In Lackinton v. Atherton (a), where Atherton, the vendor, had given a delivery order in his own name to the buyer, which order, when presented to them, the warehousemen refused to accept on the ground that the goods stood in the name of a former owner, and that they had never been transferred into the name of Atherton, the Common Pleas in an action between Atherton and the assignees of the purchaser, decided that this refusal to deliver possession to the buyer, who really was then entitled to the possession, prevented Atherton's rights as unpaid vendor from being divested, and that a subsequent countermand on the buyer's insolvency was valid; but in this case the refusal of the bailee was so far justified by circumstances, that it would not have been evidence of a conversion by him. His refusal to assent to the transfer of possession without orders from the person who originally deposited the goods with him was not

(a) Lackinton v. Atherton, 8 Scott. N. S. 38.

wrongful, though his mere assent to the transfer would have been sufficient to alter the possession.

But when the authority to give possession is conditional, the case is somewhat different. The bailee is not authorized to give possession, nor the purchaser to take it until the conditions are fulfilled. It is not therefore to be presumed, or inferred, that the bailee consents to hold the goods for the purchaser before these conditions are fulfilled, and though an express unconditional assent on his part might, and probably would, estop him from denying that the possession was in the purchaser, yet it may be doubted whether even an actual delivery of possession, without fulfilling the conditions, would affect the vendor. But it must be observed, that conditions are not necessarily binding, merely because they are expressed in the authority. If by the bargain the purchaser is entitled to an unconditional authority to take possession, the vendor cannot clog that authority with any conditions at his mere pleasure, and even if the purchaser gives his consent to the conditions, that consent is revocable, unless there be some consideration for it. It is therefore necessary, not merely that the authority should be conditional, but that the conditions should be authorized by the contract.

In the case of Hanson v. Meyer, (a) in 1805, the contract of sale was by Meyer to Wallace and Hawes of a quantity of starch, at 6l. per cwt. The vendor gave a delivery order to the purchaser,

(a) Hanson v. Meyer, 6 East, 614.

addressed to the Bull Porters, in these terms; "Please to weigh and deliver to Messrs. Wallace and Hawes, all my starch." The warehouseman received the order, and so far obeyed it as to weigh and deliver a part of the starch, then Wallace and Hawes became bankrupt, and the order was countermanded, and the starch taken away by Meyer. The assignees of Wallace and Hawes brought trover against Meyer. It is now decided that by such a bargain the property is not changed, (see ante, p. 154), but at that time it was not so settled, and Hanson v. Meyer did not decide that point. The case was decided on the ground that the authority to give possession was conditional only. Lord Ellenborough said" By the terms of the bargain formed by the brokers of the "bankrupt, two things in the nature of conditions, or preliminary acts on their part, necessarily pre"ceded the absolute vesting in them of the property "contracted for. * The second, which is the "act of weighing, does so in consequence of the par"ticular terms of this contract, by which the price "is made to depend upon the weight. The weight "therefore must be ascertained, in order that the "price may be known and paid, and unless the weighing precede the delivery, it can never for these purposes effectually take place at all.

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"This preliminary act of weighing, it certainly never "was in the contemplation of the sellers to waive in

respect of any part of the commodity contracted for. "The order to the Bull Porters, his agents, is to weigh "and deliver all his starch. Till it was weighed,

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they, as his agents, were not authorized to deliver it, still less were the buyers themselves, or the pre"sent plaintiffs their assignees, authorized to take it "by their own act from the Bull Porters warehouse, "and if they could not so take it, neither can they "maintain this action of trover. * It is

66 unnecessary to consider what would have been the "effect of nonpayment of the price, or the right to "the undelivered residue of the starch if the case had "stood merely on that ground, as it did in the case of "Hammond and others v. Anderson, 1 N. R. 69, where "the bacon sold in that case, was sold for a certain "fixed price, and where the weighing mentioned in "that case was merely for the buyer's own satisfaction, “and formed no ingredient in the contract between "him and the seller, though it formed a very impor"tant circumstance in the case, being an unequivocal act of possession and ownership, as to the whole "quantity sold on the part of the buyer."

The circumstance of the weighing being by the contract to precede the delivery, distinguishes this case and the cases which follow it; Wallace v. Breeds, (13 East, 522), Busk v. Davis,

(2 M. & S. 396), from the case of

Shepley v. Davis, (5 Taunt. 617) Swanwick v. Sothern (a), in 1839. There the vendors of corn had given the purchaser a delivery order in the following terms: "Deliver Mr. J. Mander 1028 bushels of oats, Bin 40, O. W., and you will please weigh them over and charge us the expense."

(a.) Swanwick v. Sothern, 9 A. & E. 895.