the shippers the bills of lading, which were also claimed by the trustee in L.'s bankruptcy: Held, that the agreement did not deprive W. of the ordinary vendor's right to stop in transitu, and that inasmuch as the transitus had not ended before the arrival of the goods at Shanghai (Rodger v. The Comptoir d'Escompte de Paris, 21 L. T. Rep. N. S. 33; L. Rp. 2 P. C. 393) and as he had given effectual notice of stoppage before the end of the transitus, W. was entitled to the goods or the proceeds of their sale. Held also, that the agreement was not a bill of sale within the 1st section of the Bills of Sale Act 1854. THIS was an appeal from a decision of Mr. Registrar Hazlitt, sitting as Chief Judge in Bankruptcy. The facts of the case were as follows: By an agreement under seal made on the 10th Feb. 1876 between Robert Efford Love, of Parklane, in the county of London, merchant aud ship. owner of the one part, and William Watson, of the other part, after reciting that Love had for some time past purchased from Watson from time to time and was still purchasing Manchester goods for shipment to China, Watson drawing upon Love and the latter accepting bills of exchange for the invcice price of such goods; and that Watson bad applied to Love, and the latter had agreed to give him security for the due payment of the bills of exchange at maturity and for all sums which might from time to time become due from him to Watson upon account current not exceeding the sum of 5000l.; and that in pursuance of such agreement Love had, by three several mortgages or bills of sale bearing even date with the present agreement, transferred to Watson by way of mortgage thirty-two sixty-fourth shares of ship Ousieri, thirty-two sixty-fourths of the ship Sing Fai and thirty-two sixty-fourths of the ship Rowena, of which vessels Love was the owner in the proportions aforesaid, in consideration of the premises the parties agreed as follows: (1.) That Watson should from time to time supply to I ove goods according to his selection, so that he might, during the continuance of the agreement, have a credit to the extent of 5000l., for which Watson should draw upon and Love should accept bills of exchange from time to time for the invoice price of such goods; (2) that Love should ship all goods purchased under clause 1 to Messrs. Rothwell, Love, and Co. of Shanghai, China, for sale on his account; that the bills of lading of all such goods should be sent by Love immediately on receipt by ordinary post to Rothwell, Love, and Co., to whose order all such bills of lading should be made out; that Watson should have a lien upon the bills of lading and each shipment of such goods in transit outwards or in the hands of the consignees or any other persons, and also upon the proceeds or produce purchased with the proceeds of each such shipment in the hands of the consignees or any other persons, or in transit homewards; that such lien, however, should not be a general one, but should extend only to the particular shipment, and should cease when the bills of exchange which had been given by Love for such particular shipment should have been paid; (3) that Love should insure from time to time to the full value thereof for the benefit of Watson primarily as such mortgagee and pledgee as aforesaid, and subject [CT. OF APP. thereto for his own benefit, all the goods to be shipped as before mentioned and also the mortgaged ships, &c. No notice of this agreement was given to Rothwell, Love, and Co. On the 1st March 1876, Love ordered of Watson, under the above mentioned agreement, ten bales of lastings of the value of 4431. 10s., which goods Watson forwarded in the ordinary course to James Copperthwaite, of Bradford, a packer, to be packed and forwarded to Love. On the 20th March Copperthwaite wrote to Love, saying, "I beg to hand you particulars of ten bales waiting your forwarding instructions," and appending the particulars of the goods. On the 22nd March Watson invoiced the goods to Love, and the following day Love wrote to Copperthwaite "Please send the ten bales lastings to the Gordon Castle, loading in the South West India Dock for Shanghai. I enclose card of the vessel. I should have sent forwarding instructions before, but there was no vessel ready." On the 24th March the goods were forwarded by Copperthwaite from Bradford (carriage paid) by the Great Northern Railway to their Poplar Dock Station, for shipment on board the Gordon Castle, for Shanghai, and, on the 25th March, Love received from the Great Northern Railway Company, the following "advice of goods": "The undermentioned goods consigned to you have arrived at this (Poplar Dock) station. I will thank you for instructions as to their removal hence as soon as possible, as they remain here to your order, and are now held by the company, not as common carriers, but as warehousemen at owner's sole risk of loss or damage, by deterioration or fire, and subject to the usual warehouse charges in addition to the charges now advised." Then followed a description of the goods, under which was written, "Will be sent to the Gordon Castle, S. W. I. Docks." On the 24th March Watson drew upon Love for 4431. 10s, the price of the goods, at six months date. On the 28th March the goods were shipped on board the Gordon Castle, and on the same day Love sent to Messrs. Skinner and Co., the owners of the ship, the bills of lading of the goods in three parts, exclusive of the master's copy, for signature, and Skinner and Co., on the 29th March, signed them to the order of Love, but they were never delivered over to him, inasmuch as he failed to pay the freight. On the 4th April, Love, through his solicitors, sent notice to his creditors that he must suspend payment. : On the 6th April H. F. Jörss, of Manchester, wrote to W. Pustan at Hamburgh as follows, in German I request you to telegraph immediately to your Shanghai house to attach the following goods sent by Wm. Watson and Co. to Rothwell and Co., and in any case to get delivery of the bills of lading of the still afloat lots. The goods are”—(inter alia) the ten bales shipped in the Gordon Castle-" and then sell the goods for account of Wm. Watson and Co. at the best possible prices." On the 8th April the Gordon Castle sailed with the goods on board. On the 11th April Watson telegraphed to Roth well, Love, and Co. to deliver the goods to his agents at Shanghai. On the 12th April, Love filed a petition for liquidation of his affairs by arrangement. On the 30th May, Love was adjudicated a bankrupt, and on the 21st June a trustee was appointed. The bills of lading of the goods still remained in the hands of Skinner and Co., of whom Watson demanded them before the goods arrived at Shanghai. A counter-claim was set up by the trustee in Love's bankruptcy. Ultimately it was arranged that the goods should be sold by the agents of Skinner and Co. at Shanghai, and the proceeds paid to the person who should be held entitled thereto. The Registrar having held that the trustee in Love's bankruptcy was entitled to the proceeds of sale, Watson appealed from his decision. Horne Payne, for the appellant.-The agreement made between the vendor and purchaser in Feb. 1876, was not a bill of sale within the meaning of the 1st section of the Bills of Sale Act (17 & 18 Vict. c. 36). But even if it was a bill of sale, the goods were not in the apparent possession of the bankrupt at the time of his bankruptcy : Williams on Bankruptcy. p. 103; Smith v. Hudson, 12 L. T. Rep. N. S. 377; Ex parte Montague; Re O'Brien, 34 L. T. Rep. N. S. Townley v. Crump, 4 Ad. & Ell, 58; Edwards v. Edwards, 34 L. T. Rep. N. S. 472; L. [BRAMWELL, J.A., referred to Belcher v. Bellamy (2 Ex. 303). At all events, the agreement did not deprive us of our ordinary vendor's right of stoppage in transitu, and we duly exercised that right before the goods reached Shanghai, for the case in the Privy Council of Rodger v. The Comptoir d'Escompte de Paris (21 L. T. Rep. N. S. 33; L. Rep. 2 C. P. 393) shows clearly that the transitus continued till the goods reached Shanghai. We are, therefore, entitled to the proceeds of sale of the goods. Everitt and R. T. Reid, for the trustee.-Rodger v. The Comptoir d' Escompte de Paris is distinguishable from this case, for there the bills of lading were made out to the bankrupt. As Mr. Benjamin in his work on sales says (at p. 703): "The question, and the sole question, for determining whether the transitus is ended, is, In what capacity the goods are held by him who has the custody? Is he the buyer's agent to keep the goods, or the buyer's agent to forward them to the destination intended at the time the goods were put in transit ?" In the present case, when the goods arrived at the railway station in London, there was nothing to prevent the purchaser from taking possession of them. The transitus was broker there: (Valpy v. Gibson, 4 C. B. 837; Dixon v. Baldwen, 15 East, 175.) They also cited: Meux v. Jacobs, 32 L. T. Rep. N. S. 171; L. Rep. 7 Rogers, 35 L. T. Rep. N. S. 115; L. Rep. Ex parte Banner; Re Tappenbeck, 34 L. T. Rep. N. S. 199; L. Rep. 2 Ch. C. 278. Horne Payne, in reply. JAMES, L.J.-Notwithstanding the length of time [CT. OF APP. this case has occupied, and the great number of very nice points which have been raised, I am satisfied that the case ought to be determined simply upon the last point. Independently of any right which the vendor had under the agreement, he had his original right of a vendor to stoppage in transitu when his purchaser failed; and there was nothing in the agreement, there was nothing in the bargain between the parties, at all events, which was to diminish the vendor's right to stoppage in transitu. Then the question is, has he stopped in transitu? I am of opinion that the transit did, in truth and in fact, continue, and was intended, in truth and in fact, to continue all the way from the railway station in the north, through the docks in London, and on board the ship to Shanghai. It is quite clear that the bargain between the vendor and the purchaser, for reasons essential to the interests of the vendor, was that that should be the transit, and that was the transit that actually was made from one place to the other. That is, it was to extend from Bradford to Shanghai, by railway and ship. The goods have by this time, subject of course to the perils of the sea, reached Shanghai. It was said that there was some break in the transitus, that it was interrupted, and that some right had accrued as to the stoppage, and that that vested in the purchaser some different character in some way or other. That did not, I think, affect the goods when they reached the packer's hands. The packer was the man employed by the vendor to pack; and when the goods reached the railway, when they reached London, no doubt the railway company, being both warehousemen and carriers, said: "We hold them at your disposal;" but they had the goods marked, and sent to them for the purpose of being forwarded to the Gordon Castle, and in that very note in which they ask for orders and say, "We hold them at your risk," and so on, it is said that they "will be sent to the Gordon Castle." Therefore it is quite clear that they must have received notice at the time that the Gordon Castle was the proper destination for the goods; and the goods themselves had the word Shanghai marked upon them. Therefore that was the rightful course which the thing ought to have taken. 46 than We are of opinion that we must consider that that which was the rightful course was intended to be taken, and was taken, that is to say, to send them on to Shanghai. Of this I am quite certain, that if the vendors had found out that the goods were going to be sent anywhere else to Shanghai, and by any other means than that particular ship, they could have applied at once to the Chancery Division of the High Court of Justice, and they would have been entitled to obtain and would have obtained an injunction to restrain the goods from being sent in any other mode to any other place. Therefore they would have been entitled to require that to be done which has been done. That having been done, has the transitus been stopped? It so happens, luckily for these gentlemen, that the documents of title have never left the shippers' possession; owing to some little mistake about a charge of three guineas on the goods, nobody has ever acquired any right to take the goods out of the shippers' hands; and while they are on board the ship, with no valid right in anybody to take them out of the shippers' possession, the vendor comes to the shippers and says, "Now deliver those goods to me," and the shippers have undertaken to sell the goods and deliver the proceeds to the real owner. I am of opinion that the goods have been effectually stopped in transitu, because the shippers have been directed to sell them according to the legal and equitable rights of the parties; and if the vendors had gone out in time they could have stopped the goods in transitu before they were delivered out of the ship at Shanghai, but they were relieved from that trouble by the fact of the shipowner being here and saying: "I will sell the goods for the rightful owner." I am of opinion that there was a right to stoppage in transitu, and that there has been de facto a stoppage in transitu which completes the title of the owner of the goods, who sold them to a person who has become bankrupt before they were delivered. That, I think, is sufficient to dispose of the real point in the case. There is really nothing in the other point. We are all of opinion that this is clearly not a case within the Bills of Sale Act. That point has been very much argued, and wo think it right to say, having regard to the words and spirit of the Bills of Sale Act, that a contract of this kind is not "a bill of sale or other assurance of personal chattels whereby the grantee or holder has power to seize or take possession of" them within the meaning of that Act. It is a right connected with the vendor's lien, or of that nature more than anything else; but certainly it is not a bill of sale of personal chattels within the meaning of that Act. Then the other point was as to the reputed ownership. If the case depended upon that, it is quite clear that the bankrupt was the true owner of the goods, subject to an equitable charge, and certainly that equitable charge would, in my opinion, have been impeachable, and impeached by reason of there being nothing whatever to show that the owner of the goods was not absolutely free from any incumbrance, for the person entitled to the equitable charge would have to show that the real possessor of the goods was in some way prevented from holding himself out to the world as being the owner of the goods, free from trust, incumbrance or charge. It seems to me that if the vendors' case had depended upon that point it would have failed. However, it is sufficient to say that they have succeeded upon the point of stoppage in transitu. BAGGALLAY, J.A.-I am of the same opinion. So far as the question of the duration of the transitus is concerned, I am quite unable to distinguish the facts of this case from the facts of the case of Rodger v. The Comptoir d'Escompte de Paris (ubi sup.), decided by the Privy Council. In that case it was held that the transitus continued so long as the goods were in the charge of a third party who had contracted with the carrier for the purpose of forwarding them. Applying the decision in that case to the present case, it would follow that these goods would have remained in transitu until such time as they had arrived at Shanghai, and were delivered over by the shipowner, or other persons who acted as the carriers. It has so happened in this case that, by reason of the bills of lading never having been sent from England, there was no person in Shanghai to whom the [CT. OF APP. goods could have been delivered by the carriers, and consequently they remained in the possession of the carriers and the transitus was, therefore, not completed. Before that transitus was completed, if ever indeed it has been completed in the present case, an arrangement was come to by all parties, that is to say, the trustee of the bankrupt, Mr. Watson the claimant, and the shipowners, that the goods should be sold and the proceeds disposed of according to the rights of the parties as they existed at the time the agreement was entered into. I think, therefore, that in this case the goods have been effectually stopped in transitu. BRAMWELL, J.A.-I am entirely of the same opinion and for the same reasons. The only observation I wish to make is upon the stoppage in transitu question, if the transitus lasted until the goods got to Shanghai. Now, what are the facts? The goods are in the possession of Copperthwaite, an agent of Watson, the seller, and by the direc tion of the bankrupt they set out on a journey which was to begin at Bradford and end at Shanghai, where the goods were to be delivered to people who would have been under an obligation to Watson if he had thought fit to give notice to them of his rights. They set out on that journey, and no further instructions are required, nor is anything necessary from the beginning to the end of the journey, except the receipts, getting the bills of lading, and so forth. It seems to me, so far as there is any reason in the doctrine of stoppage in transitu, the transitus in this case would be from Bradford to Shanghai; and, as Sir Richard Baggallay has said, I cannot distinguish this case from the case in the Privy Council. JAMES, L.J.-The appeal will be allowed with costs both here and below. Solicitor for the appellant, Walter Webb, agent for George Robinson, Skipton. Solicitors for the respondents, Murray, Hutchins, and Co. March 9 and 27, 1877. (Before JAMES, MELLISH, and BAGGALLAY, L.JJ.) ON APPEAL FROM THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION (ADMIRALTY). THE PARANA. Damages and cargo-24 Vict. c. 10-Measure of damages-Fall in price-Loss of market. Where, through the negligence of a carrier by sea, goods carried by him are not delivered in a reasonable time, the owner of the goods or assignee of the bill of lading for the goods is not entitled to recover, as damages from the shipowner, the difference between the market value of the goods when they ought to have been delivered and the market value when they actually were delivered. Decision of the court below reversed. Semble, the measure of damages recoverable in such a case is interest at the ordinary commercial rate on the value of the goods for the period of the delay in delivery. THIS was an appeal from the decision of the judge of the Admiralty Division, in which he sustained an objection to the report of the registrar of that court, assisted by merchants, and held that when undue delay in the prosecution of a voyage has taken place, the shipowner is liable to the consignee of goods for a fall in price of the goods between the time at which they ought to have arrived and the time at which they actually did arrive. The facts, arguments, and judgment in the court below are fully reported, ante, p. 220. Waikin Williams, Q.C. and Cohen, Q.C. (with them G. Bruce), for appellants.-To enable the plaintiffs to recover they must show that the loss was sustained by the fall in the price of hemp was either a matter which at the time of making the contract the defendants knew, or that they had notice of some other contract contingent on the fulfilment of this one by a certain date. They are entitled to recover, as found by the registrar, the interest on the value of the cargo during the time they were kept out of possession of it, but nothing more; that represents the reasonable profit they might be expected to make, and which might be supposed to be in the contemplation of the parties when the contract was made: (Smeed v. Foord, 1 El. & El. 602.) There, although there were special circumstances which might possibly have led the defendant to contemplate a fall in the 'market price, it was held that a fall which actually did occur could not be recovered, and the rule laid down in Hadley v. Baxendale (9 Ex. 341) is approved. If the fall of the market was the actual consequence of the delay, as, for example, in the case of a cargo of ice to arrive in the summer season and delayed beyond, such a fall might, perhaps, be recovered; but it is not alleged that there is any regular fluctuation in the price of hemp. The time of arrival from a long voyage like this must be, in any case, a matter of uncertainty, and the margin of uncertainty was at least equal to the thirty-seven days' delay which actually took place. In Fletcher v. Tayleur (17 C. B. 21, 29), Willes, J. says: "No matter what the amount of inconvenience sustained by the plaintiffs in the case of nonpayment of money, the measure of damages is the interest of the money only, and it might be a convenient rule if, as suggested by my Lord, the measure of damages in such a case as this was held by analogy to be the average profit made;" that is, the usual commercial rate of interest on the value of the hemp, which the Registrar allowed. In Cory v. Thames Ironworks and Ship Building Company (Limited) (L. Rep. 3 Q. B. 181; 17 L. T. Rep. N. S. 495), a sort of rough estimated rental value for the chattel, a ship of peculiar construction, was allowed, and not the actual loss sustained by the purchaser through the non-delivery of her; and in British Columbia Saw Mill Company v. Nettleship (L. Rep. 3 C. P. 499, 507; 18 L. T. Rep. N. S. 291, 604; 3 Mar. Law Cas. O. S. 65) it was held that special damages sustained by the non-delivery of a chattel conld not be recovered. Bovill, C.J., says: "It is difficult to see the proper way of compensating the plaintiffs for the damage they have suffered except by applying the rule which obtains in the case of non-payment of money, viz., by allow. ing interest on the value of the goods." [MELLISH, L.J.-Has any case been found in which a loss of market, purely speculative, has been allowed ?] In Wilson v. Lancashire and Yorkshire Railway Company (9 C.B., N. S., 632), the plaintiffs recovered for a fall in price where there was a delay in delivery; but that was a consignment of caps to a seaside place, and it must have been known by the defendants that the market for caps would cease [CT. OF APP. In with the termination of the seaside season. Re Trent and Humber Company. Ex parte Cambrian Seam Packet Company (L. Rep. 4 Ch. App. 112, 117; 19 L. T. Rep. N. S. 465; 3 Mar. Law Cas. O. S. 119) which was an action for delay in delivering a ship, Lord Cairns, L.C., said that, in estimating the damages, he had proceeded on the principle that "the measure of damages is, primâ facie, the sum which would have been earned in the ordinary course of the employment of the chattel in the time." There is moreover, a great distinction between the contracts of land and water carriage. When goods are sent by train, the object is manifestly to secure a punctual delivery by a certain date; but in a long voyage by sea, there is of necessity a great uncertainty in the date of arrival, and this is recognised by the American case, The Lively (1 Gall. 315, 327). Story, J. says: "Upon the whole, I am well satisfied that the profits, upon the supposition of a prosperous termination of the voyage, ought not in any case to constitute an item of damage." They also referred to Sedgwick on Damages, 6th edit., 81, 430; Massé Droit Commercial, 2nd edit., vol. 3, lib. 5, tit. 1, Ch. 3, sect. 4, § 1, p. 240; Code Napoleon, Art. 1149, 1150; Ward v. New York Central Railroad Company, 45 Clarkson (with him Butt, Q.C. and Davidson), for respondents.-The loss of market must be held to be in contemplation of the parties in this instance in case of delay. Why should the plaintiff select a steamer at a higher freight instead of a sailing ship, unless he wishes to insure dispatch and punctuality? He calculates that his goods arriving at a certain date, he will sell for a certain price, and if they do not arrive at that date he is entitled to recover for the loss sustained: (Sedgwick on Damages, 6th edit., p. 430.) The measure of damages for delay in delivery is always the difference in price between the time when the goods ought to be delivered and the time when they actually are delivered, and this is shown by the fact that where there is no fall of market the plaintiffs can recover nothing: (Great Western Railway Company v. Redmayne, L. Rep. 1 C. P. 329.) Collard v. South-Eastern Railway Company (7 H. & N. 79; 4 L. T. Rep. N. S. 410), is directly in point, there the contract was to deliver by railway on a certain day, on which the plaintiffs might anticipate a sale at a certain price. Here the plaintiff employs a steamship with the view of having his goods delivered at and within a reasonable time, and at which time also, from his knowledge of the state of the market and trade reports of cargoes afloat, he could estimate the sale of his goods at a particular price, and by the breach of the contract of carriage by the defendants he has not been able to realise that price. This question is quite independent of that of interest; he is entitled to interest as well. He should be put in the same position as he would have been had the cargo been delivered at the proper time; that is, to have the money for which it would have sold at that time, and because he did not get it then, but has been kept out of it, and unable to use it profitably, he is entitled to interest on it whilst he is so deprived of it. They also referred to Horne v. Midland Railway Company, L. Rep. 8 C. P. 131; 28 L. T. Rep. Ñ.S. 312; O'Hanlan v. Great Western Railway Company, 6 B. & S. 494; 12 L. T. Rep. N.S. 490; Berries v. Hutchinson, 18 C. B., N. S., 445; 11 L. T. W. Williams, Q.C., in reply.-The_plaintiff was neither shipper nor consignee. The action is founded on a bill of lading, and the property in the goods only passed to the plaintiff when the bill of lading was handed to him. He knew nothing about the ship or her date of arrival, he did not even know when she sailed. In addition to the former authorities, Rice v. Baxendale (7 H. & N. 97) was cited. Cur. adv. vult. March 27, 1877.-The judgment of the court was read by MELLISH, L.J.-This is an appeal from the Admiralty Division, which is brought by the assignees of some bills of lading, under the Admiralty Court Act, for the purpose of recovering damages against the shipowner for breach of contract of carriage contained in, I think, two bills of lading of certain quantities of sugar and certain quantities of hemp from Manilla to London. The breach alleged was, that the boilers of the Parana were in a bad condition, and that by reason thereof a very undue delay took place during the voyage. The breach was admitted, and an inquiry was ordered before the registrar and merchants to assess the amount of damages, and they came to the conclusion that a delay of thirty-six days might be imputed to the shipowner, and that he was liable for the damage occasioned by that delay. They then proceeded to assess the damages, and gave a certain sum for the additional leakage of the sugar that had taken place in consequence of the length of the voyage; and also interest at 5 per cent. on the value of the hemp and sugar. But the further question arose whether in addition the plaintiff was entitled to recover damages in respect of a fall in the price of the hemp, which he alleged had taken place between the time when the cargo ought to have arrived and the time when it did arrive; the registrar and merchants had to find what the total amount of damages would be, including the fall of price, if the plaintiff was entitled to it, and they came to the conclusion that damages for the fall of price ought not to be recovered, and reported accordingly. Their report was objected to before the Judge of the Admiralty Division, and he sus tained the objection, and allowed the damages claimed for the fall in price. From that decision there is an appeal to us, and therefore the question we have to decide is, whether, if there is undue delay in the carriage of goods on a long voyage by sea, it follows as a matter of course that if there has been a fall in the price of these goods between the time when they ought to have arrived and the time when they do arrive, damages can be recovered. Now there really is no difficulty as to the general principles upon which the courts assess damages. They are accurately stated in two or three places in the judgment of Sir Robert Phillimore, as where he cites the last case on the subject, Simpson v. London and North-Western Railway Company (L. Rep. 1 Q. B. 274; 33 L. T. Rep. N. S. 805): "The principle is now settled that, whenever either the object of the sender is specially brought to the notice of the carrier, or circumstances are known to the carrier VOL. III., N. S. [CT. OF APP. from which the object ought in reason to be inferred, so that the object may be taken to have been within the contemplation of both parties, damages may be recovered for the natural consequences of the failure of that object." He also cites the judgment of the Lord Chief Baron in Horne v. Midland Railway Company (L. Rep. 8 C. P. 131, 137: 28 L. T. Rep. N. S. 312): " Damages for a breach of contract must be such as may fairly and reasonably be considered as arising naturally-i.e., according to the usual course of things from such breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it." The difficulty, of course, arises in the application of those principles. We took time to consider our judgment, because a great many authorities were cited, both in the court below and before us: but the result of them is, that there is no decision which can at all be said to be directly in point. There is no case, I believe, in which it has ever been held that damages can be recovered for delay in the carriage of goods on a long voyage by sea, where there has been what may be called a merely accidental fall in price between the time when the goods ought to have arrived and the time when they did arrive-no case that I can discover where such damages have been recovered; and the question is, whether we ought to hold that they ought to be recovered? If goods are sent by a railway for sale at that day's market in Smithfield or Billingsgate, and by reason of a breach of contract on the part of the carrier they have not arrived in time for that market, no doubt damages for the loss of market may be recovered. So, again, if goods are sent for the purpose of being sold at a higher price than they are at other times, and if by reason of breach of contract they do not arrive in time, damages for loss of market may be recovered; or if the facts are known to both parties; or where it is known à priori that they well sell at a better price than if they arrived later. But there is no evidence in this case of anything of that kind, as far as I can discover from the facts; it is only said, when they arrived in November they were likely to sell for less than if they had arrived in October, that the market was lower. But besides the case of consignment of goods to be sold at a particular market, cases were cited, and it was upon them the court below proceeded, of the carriage of goods by a railway, where damages for loss sustained on account of the fall in price of the goods have been recovered, and it was said there could be no difference between the carriage of goods by railway and the carriage of goods by sea. But it appears to us that there may be a material difference between the two cases; when goods are conveyed by railway, if they are known to be conveyed for the purpose of sale at all, they are usually conveyed for the purpose of immediate sale, and if the cases are examined, I think it will be found that in all of them the courts treated the question as if the goods were consigned for the purpose of immediate sale. No doubt, if goods are consigned to a railway company under such circumstances, the railway company may be reasonably supposed to know that they are consigned for the purpose of immediate sale; and, if by breach of contract on the part of the carrier, D |