1007. damages, but declining to amend the record, or to leave it to the court to do so.

The Hon. G. Denman, Q. C. in Easter Term last, accordingly obtained a rule nisi to enter a verdict for the plaintiff for 1007., on the ground that there was evidence to go to the jury in support of the declaration either in its present form, or to be amended by the court under the 222d section of the Common Law Procedure Act, 1852. Sir G. Honyman now showed cause.-The declaration in substance charges, that, by means of a fraudulent and deceitful representation, the defendant induced the plaintiff to purchase, amongst other things, the "goodwill" of the public-house in question. The agreement which was put in makes no mention of goodwill. It is an agreement specifically for certain household furniture, fixtures, utensils in trade, &c., as per inventory. The plaintiff purchased these very things. Does the use of the word "fixtures" import goodwill? [BYLES, J.Does the agreement import that the purchaser shall sell beer on the premises in question, or the vendor?] The purchaser, no doubt. But, suppose the defendant had opened a beer-shop next door to *the Gibraltar, would he have been liable to an action? [BYLES, [*289 J.-This is not an action ex contractû, but ex delicto. WILLES, J.-All difficulty, if any there be, may be cured by an amendment of the declaration, by setting out the agreement in its terms.] The Lord Chief Baron expressly declined to reserve to the plaintiff leave to amend. [WILLES, J.-He could not restrain the general power of the court to amend, under the 222d section of the Common Law Procedure Act, 1852, where leave to inove is reserved.]

Denman, Q. C., and Willoughby, were not called upon to support the rule.

ERLE, C. J.-I am of opinion that the rule should be made absolute to enter a verdict for the plaintiff for 100%. It appeared that the plaintiff entered into an agreement with the defendant whereby the former was to pay to the latter 2627. on his delivering up to him the possession of the public-house and premises, together with the household furniture, fixtures, utensils in trade, &c., as per inventory taken by William Wood. It also appeared that the 2621. was paid, and the plaintiff let into possession; and it appeared upon the evidence, and was found by the jury, that the defendant represented the takings of the public-house to be 801. per month, and that that representation was fraudulent and untrue. The evidence was, that the defendant falsely and fraudulently represented the value in respect of the business carried on upon the premises, when bargaining for a sale of the fixtures and utensils in trade therein. There can be no doubt that an action will lie against him for that. It is true, the word "goodwill" is not found in the agreement which was drawn up embodying the terms of the contract between the parties. There could be no difficulty in *framing a declaration which would be unobjec[*290 tionable upon this contract. I incline to think this declaration good as it now stands. But, at all events, the case is one in which the court has power to amend, and in which we ought, if it were necessary, to exercise it.

The rest of the court concurring,

Rule absolute.

MOAKES v. NICOLSON. May 31.

1. Coals were sold at Hull, and shipped on board a vessel chartered by the buyer, to be paid for in cash against bill of lading in the hands of the seller's agent in London :-Held, that no property passed to the buyer until the condition was fulfilled, and that, the price being unpaid, the seller was entitled to intercept the delivery.

2. Held, also, that a third person, who had agreed with the vendee to purchase the coals of him, by a verbal contract entered into before the quantity was ascertained and shipped, could be in no better position than the original vendee.

THIS was an action of trover. The declaration stated that the defendant couverted to his own use and wrongfully deprived the plaintiff of the possession of his goods, to wit, coals, and thereby the plaintiff was hindered and prevented from performing a contract which he had made with a certain firm trading under the style of Daniel Barker & Co. for the delivery to them of the said coals for a certain price: and the plaintiff, being unable by reason of the premises to deliver the said coals to the said Daniel Barker & Co., had become and was liable to make the said Daniel Barker & Co. compensation for the plaintiff's breach of the said contract; and the plaintiff had lost all the profits which he would have made had he performed the same: Claim, 2501.

The defendant pleaded,-first, not guilty, secondly, that the said goods were not, nor were nor was any of them, or any part thereof, the plaintiff's, as alleged. Issue thereon.

*291] *The cause was tried before Keating, J., at the first sitting at Westminster in Easter Term last. The facts were as follows:The plaintiff is a coal-broker and ship-agent, and the defendant a ship and insurance-broker, both carrying on business in London. The action was brought to recover 1297. 18s. 6d., the value of 170 tons, 8 cwt., of South Yorkshire steam-coal, which had been seized and converted by the defendant, acting as the agent of one Josse, of Grimsby, coalagent, under the following circumstances:

On the 9th of December, 1864, one Pope, a coal-merchant in London, who was then at Hull, agreed with Josse, then also at Hull, for the purchase of a cargo of steam-coal, to be shipped on board a screw steamship called The Isle of Arran, which had been chartered by Pope. The following is a copy of the charter-party :

"Hull, December 9th, 1864. "It is this day mutually agreed between R. T. Dails & Co., agents to the owners of the Isle of Arran, of 138 tons gross register, and 30 horse-power, or thereabouts, and F. Pope, coal-merchant, Limehouse, London, that the first-named party is to let, and the second-named party is to hire, the above-named steamship for the space of three calendar months, reckoning from the day on which she is delivered over to the charterer at Goole, 10th December, 1864, in a perfectly good and efficient state; and to be by charterer or assigns employed for the conveyance of lawful merchandise, as follows,-Between good and safe ports on the east coast of England, not north of Newcastle or Warkworth Harbour: it being agreed that no salt or other injurious cargoes affecting iron vessels be shipped. And in consideration of these premises, it is agreed that the said owners shall receive from

F. Pope as charterer, for the hire and service of the said *steam[*292 ship, at the rate of 501. for every fourteen days, which pay shall commence from such day on which the steamer be placed at the charterer's disposal as above, and be made in the following manner, -every fourteen days in advance, in cash; the first fourteen days' hire to be paid in cash on signing this charter. And it is hereby agreed between the contracting parties, that the charterer is to find the crew and engineers, pay their wages, victualling. The charterer will have to find coals, oils, tallow, and waste, port-charges and pilotage, labourage loading and discharging, light and dock dues, and all expenses appertaining to the cargo he may put on board. The owners are bound to keep the vessel and engines in perfect order during the period in which she is employed by the charterer: but, if any damage should occur either to the ship or machinery, which may occupy more than forty-eight hours to repair, the time so occupied will be allowed by the owner in due proportion to the charter money stipulated; and the captain and engineer's certificate jointly shall be satisfactory evidence as to the time occupied in repairing; but, should the vessel be driven into port or to an anchorage by stress of weather, or from any accident to the cargo, such detention or loss of time shall be at the charterer's risk and expense. If the vessel should either be delivered or occupied by the charterer three days previous to or after the expiration of the stipulated period, such time to be allowed for at the rate of hire above named. The acts of God, Queen's enemies, fire, and all and every other danger and accidents of machinery, or of the seas, rivers, or navigation, of whatever nature and kind, always excepted. Should any difference of opinion arise between the parties to this contract, either in principle or detail, the same to be referred to arbitration to two competent parties, one to *be chosen by [*293 each contracting party, with power to call in a third person as referee; the majority of opinions hereafter to be final and binding. The owner to have a lien upon all freight and cargo for any hire that may be in arrear. And, in the event of the said hire not being paid as above, it is agreed that the owners or their agents shall have the power of taking possession of the said steamer and terminating this charter-party, but still holding the charterers liable for the said hire of 501. for every fourteen days. Penalty for non-performance of this charter, estimated damages. It is further agreed that the usual commission of 5 per cent. on this charter-party is due by the owners to R. T. Dails & Co., on signing hereof. The captain and engineers to be appointed by the owners or their agent, but to be paid by the charterer at current wages. R. B. DAILS & Co."

The Isle of Arran proceeded to Grimsby, and was loaded by Josse with the coals in question; and on the 20th of December Pope received in London the following letter, invoice, and bill of lading:

"Anglo French Transit Company, "Royal Dock Chamber, Grimsby. "19th December, 1864. "Dear Sir,-The Isle of Arran is loaded, and will sail during the night. I shall telegraph you her sailing in the morning. I enclose copy of the account, 231. 8s. 3d. expenses, and 937. 15s. 11d. amount of in voice.

H. JOSSE."

*" H. Worms, represented

*294] by H. Josse, Great Grimsby. Shipped in good order and well conditioned for Mr. H. Worms, by Mr. H. Josse, as agent, in and upon. the good ship called The Isle of Arran, whereof is master for this present voyage G. Hailstone, and now riding in the dock Grimsby, and bound for Gravesend, 170 tons, 8 cwt., equal to keels of steamcoals, being marked and numbered as in the margin, and are to be delivered in the like good order and well conditioned at the aforesaid port of Gravesend (the act of God, the Queen's enemies, piracy, fire, and all and every other dangers and accidents of the seas, rivers, and navigation of whatever nature or kind soever excepted) unto Mr. F. Pope or order, on being paid freight and demurrage for the said coals as per charter-party, with primage and average accustomed. In wit ness whereof the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which three bills being accomplished, the other two to stand void.

"Great Grimsby, December 19, 1864. "GEORGE HAILSTONE." One only of the three bills of lading was stamped, and that was retained by Josse: the second was transmitted to Pope; and the third was subsequently forwarded to the defendant.

The Isle of Arran arrived at Gravesend with the coals on board on the 7th of January, 1865, when the captain was served with the following notice :

"5, Jeffry's Square, St. Mary's Axe, "2d January, 1865.

"To the master of the steam-ship called the Isle of Arran, and to the owners of the said vessel, and to any others whom it doth or may

concern:

"As agent duly authorized for and on behalf of Mr. *Henry

*295] Josse, of Great Grimsby, merchant, the seller of the cargo of coals, say 178 tons of coals shipped per the said ship Isle of Arran, at Grimsby aforesaid, for Gravesend, I do hereby give you and each of you notice that Mr. F. Pope, of London, merchant or wharfinger, the buyer of the said cargo, has not paid the price of the said goods in cash according to his contract, although payment thereof has been lawfully demanded, and by reason of the premises the said F. Pope must be deemed to have stopped payment: And on behalf of the said Henry Josse I do hereby stop the said goods in transitu; and I hereby demand and require of you to deliver the said goods to the said Henry Josse or to me on his behalf, and to no other person or persons. "W. NICOLSON."

In consequence of the receipt of this notice, the captain of the Isle of Arran refused to deliver the coals to Pope or to the plaintiff, to whom Pope had sold them on the 12th of December, and who produced to him the copy bill of lading endorsed by Pope. Subsequently

the cargo was unshipped by the defendant; whereupon this action was brought.

Josse swore that he sold the coals to Pope for cash against bill of lading, to be delivered by him in London. Pope, who was called as a witness on behalf of the plaintiff, swore that the sale was at a credit of thirty days: but, on his cross-examination, he admitted that he had not paid any part of the money, and that he was on the eve of bankruptcy.

On the part of the plaintiff it was contended that the coals having been delivered on board a vessel chartered by the buyer, the property thereby passed to him, and that the transit was at an end on the arrival of the vessel at Gravesend.

On the other hand, it was submitted, that, regard *being had [*296 to the terms of the contract, no property would pass to Pope until the arrival of the cargo at Gravesend and payment of the price; and that the shipment of the coals on board the Isle of Arran, though chartered by him, (a) was not a delivery to Pope, so as to vest the coals in him as owner.

It was left to the jury to say what were the terms of the contract. They found that the sale was for cash against bill of lading in the hands of the seller's agent in London.

A verdict was thereupon, by the direction of the learned judge, entered for the plaintiff for 1367. 8s., leave being reserved to the defendant to move.

Hawkins, Q. C., accordingly, in Easter Term last, obtained a rule nisi to enter a verdict for the defendant, on the grounds, that, upon the facts admitted and proved, the defendant was entitled to the verdict, that the defendant had a right to stop the coals in transitu, and that neither Pope nor the plaintiff had any right to the property and possession of the coals at any time before this action was brought.

Keane, Q. C., and Barnard, now showed cause.-There was a complete delivery of the coals to Pope when they were delivered on board the vessel chartered by him. The Isle of Arran was demised to Pope: the transit therefore was at an end when the coals were shipped. The property and the possession had both passed, and the vendor could have no right to intercept them. [WILLES, J.-The coals were delivered subject to a condition that the property was not to pass until payment.] The answer to that is, that they were delivered on board the buyer's vessel, to one who was the buyer's servant, the document of title *being made out in his name. [WILLES, J.-They were [*297 put on board under a contract made under such circumstances that it was no contract at all.] The vendor might, no doubt, as in Turner v. The Trustees of the Liverpool Docks, 6 Exch. 543, have so framed the bill of lading as to reserve to himself the jus disponendi ; but he has not taken that precaution. In Joyce v. Swann, 17 C. B. 84, it was held, that, where from all the facts it may fairly be inferred that it was the intention of the seller to pass the property in goods shipped to order, the mere circumstance of the bill of lading being taken in the name of the seller, and remaining unendorsed, will not prevent its passing. Here, every act of the seller is inconsistent with what the defendant now contends. [WILLES, J.-Joyce v. Swann (a) See Falk r. Fletcher, 18 C. B. N. S. 403 (E. C L. R. vol. 114).

C. B. N. S., VOL. XIX.-13