sailed from Toledo, and as the damage to the corn occurred after that date, there was no failure of consideration, and the plaintiff was entitled to recover. The remarks of the learned judge on this subject, although occurring in a dissenting opinion, are too valuable to be omitted.

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"The decision of the present case, which depends, in my opinion, altogether on the questions whether the property "in this corn had vested in the appellants before it became damaged, or whether, if the property in the corn had not passed to the appellants, it was by the stipulation of the "parties at the risk of the purchasers, is to be governed by the ordinary principles of the contract of sale. The passing of the property under a contract for the sale of goods is said to be altogether a question of intention, the "rules laid down being merely intended as guides for discovering or presuming the intention when the parties have not clearly expressed it. There can be generally no stronger evidence of a vendor's intention not to pass "the property to the vendee than the fact that he takes the

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bill of lading in his own name. In the present case, by "the terms of the bill of lading, the goods were deliverable "to the person whose name should be inserted in the "margin, and the name inserted was that of the bank which "discounted the draft for the price, and to whom the bill "of lading was delivered as collateral security. The effect "of this was clearly to vest a special property in the corn in the bank, and this special property was in the nature "of a hypothecation of the goods, designed to secure the payment of the draft, and subject to which the absolute legal property either remained in the respondent or "became vested in the appellant.

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"Had the bill of lading been taken originally in the "respondent's own name and then endorsed by him to the bank, it would be strong evidence, even between parties "whose relations were such as those before us, to show that "the vendor intended to reserve the property, subject to "the rights of the bank, to himself, at least until by some "further act he indicated an intention to pass it to the "purchasers. Here, however, the vendor seems to have parted with all power over the disposition of the property, when he handed over the bill of lading to the bank.

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"However this may be, it seems to me clear, both upon "authority and principle, that when, on the same day as "that on which the vessel sailed and the bill of lading was "handed over to the bank, the respondent sent the letter "of advice, enclosing the invoice, stating that the goods "were for account and risk' of the appellants, he did an "act which divested him of any property in the goods and "vested it in the appellants. In other words, when he said "the goods were to be at the risk of the appellants he "meant what he said. Had the invoice merely stated the goods to have been purchased on account of the appellants, it might not have been so conclusive; but, even in "that case, I should have thought that every presumption ought to be made against any intention on the part of "the respondent, a mere factor, whose commission had "been included in the bill drawn for the price, to retain "the property and so subject himself to the risk of any "loss which the insurance might be insufficient to cover, "more especially as he had so dealt with the bill of lading as to authorize its delivery to the vendees upon payment "of the draft drawn for the price; but the insertion of the "word 'risk' in the invoice seems to me to make it unnec

essary to resort to any such presumption, and to be amply "sufficient to vest the property in the appellants from the "date at which the invoice and letter of advice were trans"mitted-the 16th September-the day on which the "vessel sailed. In the case of Jenkyns v. Brown, which I "mentioned during the argument of this appeal, the facts

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were almost identical with those in the present case, and "the decision itself entirely warrants the opinion already expressed as to the legal result of those facts. In Mr. "Benjamin's work on Sales, he thus summarizes the "facts of that case: Klingender, a merchant in New Or"leans, had bought a cargo of corn on the order of "plaintiffs and taken a bill of lading for it deliverable to his own order. He then drew bills for the cost of the

cargo on the plaintiffs, and sold the bills of exchange to "a New Orleans banker, to whom he also endorsed the bill "of lading. He sent invoices and a letter of advice to the plaintiffs showing that the cargo was bought and shipped "on their account and at their risk. Held, that the prop

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"erty did not pass to the plaintiffs, as the taking of the "bill of lading by Klingender in his own name was "nearly conclusive evidence' that he did not intend to pass the property to the plaintiffs; that by delivering "the endorsed bill of lading to the buyer of the bills of exchange he had conveyed to them a special property' "in the cargo, and by the invoice and letter of advice to "the plaintiffs he had passed to them the general property in the cargo subject to this special property, so that the plaintiffs' right of possession would not arise until the "bills of exchange were paid by them.

"I am unable to distinguish this case of Jenkyns v. "Brown from the present, and I am, therefore, of opinion "that in the present case the property, subject to the rights "of the bank, was vested in and at the risk of the appel"lants from the 16th of September, the day on which the "schooner sailed from Toledo, and, as the damage to the "corn occurred after that date, there was no failure of "consideration, and the respondent was entitled to recover. Further, as showing that the terms of the invoice, making the goods as shipped at the buyer's risk, was a "sufficient indication of intention to pass the property, I "refer to the cases of Castle v. Playford and Martineau v. Kitching, which are also authorities for the respondent in "another view of the case, which I shall hereafter state."

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""

In a note at page 499 it is pointed out that the effect of transferring the bill of lading by way of security is only to vest a special legal property in the goods in the secured creditor, and to leave the general legal property in the owner, subject to the charge, and not to vest the whole. legal property in the secured creditor, leaving only an equitable right of redemption in the transferror; for which the case of Glyn, Mills, Currie & Co. v. The East and West India Dock Company, 6 Q. B. D. 475, and Burdick v. Sewell, 10 Q. B. D., 363, are referred to, also Campbell on Sales, p. 338.

Surrender of bill of lading to procure inspection of goods does not make purchaser liable on attached draft. In Imperial Bank v. Hall, 4 Terr. 498, it was held that where a consignor of perishable goods draws through a bank upon the consignee at sight for the amount of the contract price

and attaches the bill of lading to the draft the consignee is entitled to examine the goods before accepting them and paying the draft. If it is necessary to obtain the bill of lading from the bank and surrender it to the carrier in order to make the examination, the fact that the consignee does so and thereby makes it impossible to return the bill of lading to the bank, does not render him liable to pay the draft.

The fact that the bank endorses the bill of lading to the consignee in order to enable him to examine the goods does not transfer the right of property in them to the consignee, and if the latter deals with the goods as his own by re-shipping and selling them he becomes liable to the bank in an action for conversion for the goods or their value. On appeal the judgment was varied in some respects, but not in such a way as to invalidate any of the above propositions. Transfer of bill of lading. Effect of want of endorsement. In Gosselin v. Ontario Bank, 36 S.C.R. 406, it was held that the absence of an endorsement on a bill of lading by the assignee therein named, was notice of an outstanding interest in the goods represented by the bill, and placed persons proposing to make advances upon the goods, upon enquiry in respect of the circumstances affecting them. On failure to take the proper measures in regard to ascertaining these facts and obtain clear title to the bills and goods, any pledge thereof must be assumed to have been made subject to all rights of such consignee. The Chief Justice. dissented, holding that where the sale had been completed by "actual tradition and delivery," the mere absence of the consignee's endorsement upon shipping bills representing goods, could not have the effect of reserving any rights in the vendor.

CHAPTER II.

CONDITIONS PRECEDENT ΤΟ THE PASSING OF THE PROPERTY, IMPLIED BY LAW (a).

WHEN the parties are agreed as to the goods on which the agreement is to attach, the presumption is, that the parties intend the right of property to be transferred at once, unless there be something to indicate a contrary intention. An agreement, therefore, concerning the sale of specific or ascertained goods, is primâ facie a sale of those goods. But this arises merely from the presumed intention of the parties, and if it appear that the parties have agreed, not that there shall be a mutual credit by which the property is to pass from the seller to the buyer and the buyer is to be bound to the seller for the price, but that the exchange of the money for the goods shall be made on the spot, no property is transferred, for it is not the intention of the parties to transfer any. In other words, a contract for the sale of specific chattels is prima facie a contract to transfer the property in consideration of the buyer becoming bound to pay the price. But if the parties choose so to agree, it may be a contract to transfer the property, in consideration of the buyer actually paying the price, and not merely of his engagement so to do. This principle of law now appears in section 18, rule 1, of the Sale of Goods Act, which provides that, in the absence of a different intention, where there is an unconditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery, or both, be postponed.

In the earlier English law books, it seems to be assumed that all agreements are of a ready money character, unless there is something to indicate a contrary intention. Thus in

(a) As to implied undertakings as to title, &c., see Sale of Goods Act, s. 12.