quantity, ex a greater quantity, and there is a power of selection in the vendor, to deliver which he thinks fit, then the right to them does not pass to the vendee until the vendor has made his selection, and trover is not maintainable until that is done (c). Zagury v. Furnell (d) falls within the first of these two classes; there several bales of skins (stated in the contract to contain five dozen in each bale), were sold at a certain sum per dozen; and it was the duty of the seller to count over the skins, to see how many each bale actually contained, but before any enumeration took place the whole were consumed by fire; and Lord Ellenborough and Sir James Mansfield held that an action could not be maintained against the purchaser for the value of the skins, and that the loss fell entirely upon the seller.

So where it appeared that on the sale of oil, it is the custom before the delivery for the cask to be searched by the seller's cooper; and for a broker, on behalf of both parties, to ascertain the foot dirt and water in each (for which allowance was to be made), and then the casks were to be filled up by the seller's cooper at their expense; it was held that till such acts were done, and such delivery was made, the contract was not complete to pass the property, and the vendor might, on the insolvency and subsequent bankruptcy of the buyer, countermand the sale (e). And although the subject-matter of the sale be clearly ascertained, yet if the price cannot be calculated until both parties have weighed the goods, no property therein passes to the vendee till such act be done, as in the case of the sale of a stack of bark at a certain price per ton (f). But where on a sale of trees, at a price per cubic foot, the trees were marked by the purchaser, and the cubical contents of each tree ascertained, it was held that the property passed to the purchaser, although the sum total of the cubical contents had not been ascertained; Tindal, C. J. observing, "The mere adding up of the whole is too trifling an incident to authorise us to say the measurement was not complete" (g). Under the second class may be noticed the instances of a sale of ten out of twenty tons of flax, the same

(c) Per Bayley, B., in Gillett v. Hill, 2 C. & M. 535.

(d) Zagury v. Furnell, 2 Camp. 240, 242, n. And see Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 210.

(e) Wallace v. Breeds, 13 East, 522. (f) Simmons v. Swift, 5 B. & C. 857; 8 D. & R. 693, S. C.

(g) Tansley v. Turner, 2 Bing. N. C. 151, 155; 2 Scott, 263; 1 Hodges, 205, S. C.

being in mats of an unequal size and quantity (h); or for so many tuns out of a larger quantity of oil (i). In these cases no property passes, and the vendee cannot be sued for goods bargained and sold until there has been a selection and appropriation made of the part sold from the larger quantity of goods. But when the vendor has made such selection, and appropriated some specific portion of the entire bulk for the benefit of the vendee, the property in the article sold passes to the vendee, although the vendor is not bound to part with the possession until he is paid the price (j). A. having in his warehouse a quantity of sugar in bulk, more than sufficient to fill twenty hogsheads, agreed to sell twenty hogsheads to B., but there was no note in writing of the contract sufficient to satisfy the statute of frauds. Four hogsheads were delivered to and accepted by B.; A. filled up and appropriated to B. sixteen other hogsheads, and informed him that they were ready, and desired him to take them away. B. said he would take them as soon as he could. It was held that the appropriation having been made by A., and assented to by B., the property in the sixteen hogsheads thereby passed to the latter; and that their value might be recovered by A. under a count for goods bargained and sold (k).

In Gillett v. Hill and another (1) it appeared that Orbell contracted to sell to the plaintiff twenty sacks of flour, and gave him an order on defendants, his wharfingers, requesting them " to deliver to the plaintiff twenty sacks of households." On the order being presented to defendants it was filed by them in the way that orders accepted generally were filed by them in the usual course of their business, without any indorsement being made on it of a partial acceptance only. It was held that such general acceptance of the order vested the property in the twenty sacks of flour in the plaintiff, and that he might maintain trover for them against the defendants on a subsequent refusal to deliver them. Bayley, B. observed, "This was an order to deliver twenty sacks of flour, not

(h) Busk v. Davis, 2 M. & Sel. 397; Shepley v. Davis, 5 Taunt. 617; see Austen v. Craven, 4 Taunt. 644.

(i) White v. Wilks, 5 Taunt. 176; 1 Marsh. R. 258, S. C.; and per Bayley, B., Gillett v. Hill, 2 C. & M. 535; 4 Tyr. 290, S. C.

(j) Per Williams, J., Clarke v.

Spence, 4 Ad. & E. 469.

(k) Rhode v. Thwaite, 6 B. & C. 388; Alexander v. Gardner, 1 Bing. N. C. 676.

(1) Gillett v. Hill, 4 Tyr. 290; 2 C. & M. 530, S. C.; and see per Bayley, B., Miles v. Gorton, 2 C. & M. 510; 4 Tyr. 295, S. C.

out of a larger quantity, but twenty sacks specifically, and when the defendants accept that order without restriction, they admit that they have twenty sacks which they will appropriate to that order, and they have no right afterwards to say that they have not twenty sacks unappropriated." If the quantity, quality, and price be ascertained, the property passes to the vendee, though the vendor were not in possession of the goods at the time of the sale; as on a contract made by plaintiffs in London to sell to defendants a quantity of butter, which they expected from Sligo, and the quality and price were specified in the contract. The goods were shipped on a specified day; the defendants having accepted the invoice and bill of lading; it was held that the property in the butter had passed to the defendants, and that though lost by shipwreck the price might be recovered from defendants. in an action for goods bargained and sold (m).

In the case of a contract to manufacture goods and then sell them, it is a general rule that no property in the material or the article passes to the purchaser until the article has been finished and delivered, or is ready for delivery, and appropriated to the benefit of or set apart for the purchaser, with his consent, and accepted by him; and that even where the contract contains a specification of the dimensions and other particulars of the article to be manufactured, and fixes the precise mode of payment by months and days (n). But where the contract provides that the article shall be manufactured under the superintendence of a person appointed by the purchaser, and also fixes the payment by instalments, regulated by particular stages in the progress of the work, the general property in the materials used in the progress of the work vests in the purchaser at the time when they are put to the fabric under the approval of the superintendent; or, at all events, as soon as the first instalment is paid (0).

In Mucklow v. Mangles (p), which was an action of trover for a barge, it was held that although the party who ordered it to

(m) Alexander v. Gardner, 1 Bing. N. C. 671; 1 Scott, 281, 630; 3 Dowl. P. C. 146; 1 Hodges, 147, S. C.

(n) Mucklow v. Mangles, 1 Taunt. 318; Simmons v. Swift, 5 B. & C. 857; Rhode v. Thwaites, 6 B. & C. 388; Goode v. Langley, 7 B. & C. 26; Atkinson v. Bell, 8 B. & C. 277; Carru

thers v. Payne, 5 Bing. 270; Woods v. Russell, 5 B. & Ald. 942; Clarke v. Spence, 4 Ad. & F. 466.

(0) Woods v. Russell, 5 B. & Ald. 946; Clarke v. Spence, 4 Ad. & E. 448; Laidler v. Burlinson, 2 M. & W. 602.

(p) 1 Taunt. 318.

be built had paid

his name had been

money on account equal to the price, and painted thereon by the builder, the vendec acquired no property in the barge, it not having been delivered to the vendee. The bargain in that case does not seem to have provided for the advances which were made; and the advances do not appear to have been regulated by the progress of the work.

Laidler v. Burlinson (q) is a similar case.

That was an action of trover for one-fourth of a ship. The facts were that in the year 1833, and until his bankruptcy, one T. L. carried on business as a ship-builder, and on the 10th of June, 1833, the following agreement was entered into :-" Particulars and description of a new ship now about one-third built, in the yard of T. L." then there followed a description of the length, breadth, and depth of the ship, the number of tons she was to carry, and the timbers, and particulars of every thing that she was to be built of and supplied with, "for the sum of 1750l., and payment as follows opposite to each respective name." This agreement was signed by T. L., and after his signature followed these words:

"We, the undersigned, hereby engage to take shares in the before-mentioned vessel, as set opposite to our respective names, and also the mode of payment;" this was signed by several persons for different shares, and at different times, and amongst the rest by the plaintiff for one-fourth in October, 1833. Below these signatures were written the following:-" 14th July, 1833, I hereby agree to accept the above price and mode of payment, T. L." The plaintiff proved payment for his share by bills before the bankruptcy of T. L. The P. C. company signed the agreement for one-fourth, of which company one H. was a member, and used to go to look at the vessel when building, and occasionally found fault with the work, which was improved in consequence, and T. L. told his foreman to act under H.'s directions. At the time of the bankruptcy the frame of the vessel was on the stocks in T. L.'s building yard, in an unfinished state; and after the bankruptcy some of the men continued to work upon her, and received their money from II.; but it was held that under these circumstances the property in one-fourth of the vessel did not pass to T. L. the plaintiff.

(9) Laidler v. Burlinson, 2 M. & W. 602.

In Woods v. Russell (r), where by the contract for building a ship it was to be built under the superintendence of a person appointed by the purchaser, and given portions of the price were to be paid according to the progress of the work, it was considered that by the payment of those portions of the price, the ship was irrevocably appropriated to the person paying the money. It was a case in effect of a purchase of the specific articles of which the ship was made. Though the circumstance that the ship-builder had signed the certificate to enable the purchaser to have the ship registered in his name was relied upon by the court as the principal ground for their decision that the general property in the ship had passed to the purchaser, although not quite finished, and delivered according to the contract; still the facts of the payment having been made during the progress of the work, and the building having been under the superintentendence of an agent of the purchaser, would seem to have been sufficient to support the decision in that case.

In Clarke v. Spence (s), where the facts were somewhat similar, the same principle was recognised, though in that case there was no signature of the certificate, which was so strongly relied on in Woods v. Russell. P. contracted with a ship-builder to build him a ship for a certain sum, to be paid by instalments as the work proceeded; the first instalment when the vessel was rammed; the second when she was timbered, &c. An agent for P. was to superintend the building, the vessel was built under such superintendence, all the materials being approved by the agent before they were used. The builder became bankrupt before the ship was completed; afterwards the assignees completed the ship, and all the instalments were paid or tendered. In an action of trover by P. against the assignees for the ship, the court held, that on the first instalment being paid, the property in the portion then finished became, by virtue of the above contract, vested in P., subject to the right of the builder to retain such portion for the purpose of completing the work and earning the rest of the price, and that each material subsequently added became as it was added the property of P. as the general owner.

(r) Woods v. Russell, 5 B. & Ald. 942, recognised in Laidler v. Burlinson, 2 M. & W. 602, and Clarke v. Spence, infra. See observations thereon, Atkinson v. Bell, 8 B. & C. 282, per Bayley, J.; Carruthers v. Payne,

5 Bing. 277; 2 M. & P. 429, S. C., per Best, C. J. and Parke, J.; see Oldfield v. Lowe, 9 B. & C. 73, 78.

(s) Clarke v. Spence, 4 Ad. & E. 466, 467.