Skip to Content

Colonial Cases

Pustau and Co. v. Chapman King and Co., 1871

[sale of goods]

Pustau and Co. v. Chapman King and Co.

Supreme Court of China and Japan
20 January 1871
Source: The North-China Herald, 25 January 1871

 

LAW REPORTS.

SUPREME COURT.

Jan. 20th, 1871.

Jury Trial.

Before C. W. GOODWIN, Esq., Deputy Chief Judge.

 

PUSTAU & Co. v.  CHAPMAN KING and Co.

   The following were the Jury: - Messrs. H. Evans, J. P. Tate, T. M. Meade, W. Mitchell, and W. Hyslop.

   Counsel for Plaintiff - R. T. Rennie, Esq.

   Counsel for Defendants - A. Robinson, Esq.

   Plaintiffs here sought to have their property in a certain quantity of lead restored to them.  The lead, amounting to 335 pigs, had been landed by them ex Geraint, and stored at the Hongkew Wharf, in July 1870, and the usual Receipt granted.  On 2nd Nov., following, a Chinaman concluded a bargain for it at the rate of Tls. 4.5 per picul, and paying two Chinese five-day bank orders for the amount, Tls. 1890, received a godown delivery order, which he, on the same day, first presented to the Wharf Master, and afterwards hypothecated to Chapman, King and Co.  Finding, on the 5th, that the Bank orders were worthless, Pustau and Co. sought to cancel the delivery order, but were informed by the Wharf Master that he then held these goods for Chapman King and Co., who by the authority of the delivery order in their possession had had them transferred to their name.  To decide whether under the circumstances the property did not still remain with the vendors, and the lien should not be disregarded, Messrs. Pustau and Co. brought the matter into Court.  The facts are fully brought out in the evidence.

   Mr. RENNIE opened the case for the Plaintiffs.  He did not know, he said, but he ought to apologise for appearing before the Court without the customary wig and gown, but as his lordship had unfortunately been deprived of his by an accident, he thought it would be better, under the circumstances, to dispense with those outward formalities.

   It was with a feeling of sorrow and satisfaction that he had felt it necessary that the Court and Jury should be called to decide so very simple a questyion.  Of satisfaction, because the facts of the case were clear, and in favour of his clients; and of sorrow that they should be put to so great trouble to decide an issue so small.  The facts of the case lay in a nutshell; but the principles of law affecting it might involve some difficult points.  With the latter, however, the Jury had nothing to do.  His Lordship would lay before them certain issues with regard to questions of fact; and if his (Counsel's) version of the case was correct, these would be both few and simple.  The facts were set forth almost completely in the petition, and the only question at issue was whether the property in some 335 pigs of lead rested with the plaintiffs or had passed to the defendants.

   On the 7th July last, 335 pigs of lead were landed ex Geraint, at the Hongkew Wharf, for Messrs. Pustau and Co.  The lead having been landed, the plaintiffs received from the Company what is known as a merchandise receipt - (handed in).  The lead remained there until the 2nd November, when the plaintiffs contracted to sell it to a Chinaman, who gave to Messrs. Pustau and Co. certain Chinese bank orders, and received from them a delivery order, No. 54 - which he also handed in.  In doing so, he asked the careful attention of the Jury to a direction written across it in red ink, the words "to be weighed on delivery by our godown man."  This delivery order did not seem to have been presented at the Wharf at all by the Chinaman, but, according to the case for the plaintiffs, bartered - the holder having taken it to Messrs. Chapman King and Co.'s and got an advance of Tls. 1,500 on it.  Mr. King had said, in an affidavit filed by him, that before advancing this money he sent to the Wharf to make enquiries concerning the order and the lead, and was answered that it was all right.  The Bank orders given by the Chinaman to plaintiffs were, as customary, payable at five days after sight, and were duly sent in for collection to the Hongkong and Shanghai Bank, but on being presented at the Bank whose chop they bore were pronounced forgeries.   As soon as this was ascertained, the delivery order of 2nd November was cancelled by plaintiffs, and a request sent to the Wharf Manager, by Mr. Siegfried of their firm, not to deliver on it.  A reply was sent by Mr. Mayne, the manager, that the goods had not been delivered, but that he believed the order was hypothecated.  Mr. Mayne did not, however, at that time say that the goods were transferred in the Wharf books to the name of Chapman King and Co.  These were the facts, so far as known to the learned Counsel; and there was no dispute between the parties to the case.

   The main question to be decided was as to the efficacy and power of the delivery order, in regard to which his Lordship would doubtless explain the law to the Jury.  In addressing them he was addressing his Lordship also, and he wished to call their attention, in the first place, to the effect of delivery orders in general.  With regard to them he believed there was no question as to the law on the point, viz: that the giving of a delivery order to a person does not pass the property in the goods.  In support of this he would cite Addison on Torts page 130, where it was laid down that the mere possession of a delivery order is not equivalent to proprietorship of the goods to which it refers; an A. and B. case on the same page being given in illustration.  There was another case to be quoted from the same page, and that of Jenkins v. Osborne, page 669, in which latter the warrant was a simple delivery order to bearer, and in which Lord Justice Tyndall stated, that though the interest in the order passed to the defendant, it did not follow, from the circumstances of the transaction, that the goods did so. Another case, Ackerman and Humphreys, in Manning and Granger, 56, illustrated the principle even more clearly; and he thought established the whole position as to this question, that the delivery order per se did not pass the property in the goods referred to in it to a purchaser, assignee, or company.

   He would now call the attention of the Court and Jury to the particular stipulation on the delivery order in this case.  They would observe, on looking at the order, while it ran "Please deliver to Bearer 335 pigs Lead," but there was an endorsement in red ink which said "to be weighed by our godown man on delivery;" and secondly trhe following N.B. printed at the foot: - "Delivery cannot be obtained on this order unless it has been endorsed by the Manager of the Hongkew Wharf company, on the back of the Company's receipt." He did not wish to count upon that further than to say it was a well known rule of law, that where anything remained to be done by the seller, before the order can be out in execution, that prevented the property from passing to the buyer; and to support this might refer to the familiar case of Henson and Myre, and many others.

   It was plain that in this case the proviso was entered for the purpose of accurately ascertaining the property to be transferred, and perhaps adjusting the price fixed.  He had no doubt that the Council for defendants would, in answer to that proposition, bring forward cases, and there were many, in which weighing on delivery, when mentioned in the ordinary way, in no way affected the passing odf the property.  But then it had been where the order had been to the warehouseman to weigh and deliver, where here was merely an order to him to deliver, subject to the condition that the vendors' godown man should weigh the goods. That he submitted brought the case under the principle that something had to be done by the sellers before delivery could be given. Delivery also could not proceed until the Wharf Manager had endorsed the merchandise receipt, which he had granted for the same goods when placed in his custody.  He had told them that no weighing had been done by Pustau and Co.'s godownman; - he now further showed that the merchandise receipt was never endorsed till on 16th Dec. by Pustau and Co., and at no time by the Wharf manager.

   Now, when they came to the whole facts of the case, and to apply the principles of law which he had stated as affecting delivery orders in general and this one in particular, they found that Messrs. Chapman King and Co. could only claim upon one of two grounds.  Their claim could only stand on the ground that they advanced money on the security of goods represented by Leechun, the Chinaman, as his property, or on the delivery order they held.  Supposing then that the delivery order was not sufficient per se to pass the property, it must be apparent that the defendants would fail upon that.  The mere possession of the delivery order by the Chinaman did not constitute him proprietor of the goods, not had he intimated to the Wharf Company that he had acquired any such right of property.  The property had never some to this man, and it was therefore simply impossible that he could transfer it.  Putting the case in the most favorable light for the defendants, it could only be said that they had the same interest in the property as the man who had pledged with them a worthless security.  They were put upon their guard by the terms of the order, terms which were peculiar, restricted, and unusual; and they might have sent to Pustau and Co. and asked whether this Chinaman would have got delivery of the goods by simply and at once presenting the order and whether he had paid for them.  No such enquiry had properly been made, and though Mr. Mayne could vouch for the genuineness of the order and of the existence of the lead, he could not tell Chapman King and Co. that the man who held it was the proprietor.  Under these circumstances, therefore, that no property had passed, Messrs. Chapman King and Co. could not acquire any, and so cfar as they are concernbed the plaintiffs are entitled to their demand for a re-tramnsfer.

   The learned Counsel concluded by saying he was sorry his discourse had not been of a more amusing character.  His only satisfaction was that the law appeared to be very clear, and that they would give a verdict, under the direction of his Lordship, for his clients, a verdict in accordance with law, in accordance with justice, and in accordance with what merchants in China were pleased to call a proper feeling.

   C. W. SIEGFRIED, sworn, s aid - I am in the employ of Messrs. Pustau and Co., and sign the firm by procuration.  Certain goods, some 335 pigs of lead, were landed by us in July last, and that is the receipt (put in) which the Hongkew Wharf Company gave for them.  These goods remained there to the account of Pustau and Co. until November.  On the 2nd November, 1870, I entered into a contract for the sale of these goods.  A Chinaman came in, and after the usual bargaining, I sold them to him at Tls. 4.50 per picul, and as he said he was prepared to take delivery of them at once I made out an order.  I did not know the exact weight, and so made the provision that before delivery it should be ascertained.  Then the man gave me two bank orders for the amount, approximately.  We settled between ourselves that before taking delivery he should come back to our office, and then go to the Wharf with out godown man, ascertain the weight, and that we would then settle the account together, and he would after that takes delivery of the lead.  I did not know the Chinaman, who presented himself under the name of Tsungkee.

   Mr. RENNIE to Witness - Had you any other object in view, besides those you mention, in making that unusual note on the delivery order as to weighing?

   Some discussion took place on the form, of this question, the Counsel for the defendants arguing that the private intentions of one party which were not shared by the other contracting party should not be imported into the case.  With this view his Lordship agreed.

   Examination continued - I was informed that these Bank orders had to run four or five days before they came due.  They are endorsed by our own cashier as due on the 6th November.  If the Chinaman had presented himself at our office according to the first arrangement, and had done so while the orders were still running, that is before the 6th November, he would not have got delivery without making further payment or giving further security.  I paid these orders into the Hongkong and Shanghai bank on the 5th of November.  They were returned on Sunday the 6th, unpaid.  On that day, therefore, I wrote to Mr. Mayne, Manager of the Hongkew Wharf.

   A number of letters which passed in correspondence between Messrs. Pustau and Co. and the Manager of the Hongkew Wharf were here read.

   The first was on the 6th of Nov., from Mr. Siegfried to Mr. Mayne, saying that he had granted a "godown order, No. 54, for 355 pigs of lead, stiored with you as per warrant No. 884, with the remark that the goods had to be w eighed before delivery, by our godown man.  The recipient of the godown order has gone from our office without paying for same, and I herewith request you not only not to deliver the lead, but also to get the person who holds the godown order arrested, in case he should appear with the same."To this Mr. Mayne briefly replied on the same day that the lead had not het been delivered, but that he believed that the order had been hypothecated.  The next letter was on November 10th, in which Messrs. Pustau and Co. formally notified to Mr. Maybe the cancelling of the order in question, and requested that he should not honor it on presentation.  Mr. Mayne replied on the same day that the order had already been presented by Messrs. Chapman King and Co., who had, on the 2nd Nov., the date of the order, intimated to him their interest in the goods; and saying that he had no alternative but to deliver the goods on presentation of the order.  On the following day, Messrs. Pustau intimated that they would hold Mr. Mayne responsible if he honored the order which they had cancelled; and said that in their opinion, he had no orders to receive and to follow, with regard to their goods, than those given by them.  Mr. Mayne replied on the 12th, that the lead had, previous to their instructions on the 6th, been transferred on the 2nd, on the application of Messrs. Chapman King and Co; and remarked that his action in rhe matter was in accordance with Messtrs. Pustau and Co.'s orders, in trhe usual course of business.  On the 1st Dec., Messrs. Pustau and Co. applied for delivery to themselves, on a duplicate order to the original "Cancelled" one, but Mr. Mayne refused to receive any order, other than the original, which had not Messrs. Chapman King and Co.'s endorsement.

   Examination continued: - Between the 2nd of November and the 6th, we received no information of hypothecation from Chapman King & Co., and Mr. Mayne's letters were the first intimation we had.  We did not part with the wharf merchandise receipt from the 2nd of November till 16th December, nor was it endorsed by Pustau & Co., not any endorsement of delivery made upon it by the manager of the Hongkew Wharf.  An endorsement was made by Pustau & Co. on the receipt of the 16th December, when they asked to have delivery of the lead.

   Cross-examined by Mr. Robinson: - I first saw the Chinaman on the 2nd of November.  I negotiated with him the sale of 335 pigs of lead, and fixed the price and gave him a delivery order which was addressed to the Manager of the Hongkew Wharf, to deliver not to him personally but to the bearer.  We had an invoice of the goods, which informed us what the lead weighed in England.  It was not weighed to my knowledge when taken into the wharf.  I calculated the price I had to receive, on the 2nd November, and made it Tls. 1,800.    I have stated the peculiar arrangement I made with this Chinaman, and the reasons I had for doing so.  Generally speaking I am not suspicious of all the people we deal with.  It is my practice, when I sell goods which are weighable, to put in this clause with regard to weighing by our godown man, as in fact our ordinary form of delivery order.  I made enquiry of our compradore whether the orders were good or not, and he said they were to the amount of Tls. 1890, and I relied upon that assurance.  We did not send the orders on the 2nd November to trhe Banks, to ascertain whether they were good.  It is a usual practice here to do so.  If the Chinaman had asked that our godown man should accompany him to obtain delivery at once I would have ascertained the absolute goodness of the order first.

   After granting the delivery order payable to bearer, and receiving orders approved by our compradore, we might, under certain circumstances, still refuse delivery.  I have said that I would have refused to give delivery to the Chinaman if he asked for it on the 2nd; but if I were dealing with a foreigner to whom I granted an order, and of whom I accepted a check for that amount of the bargain, I would not have attempted to stop the execution of that delivery order.  I never heard, between the 2nd and 6th, that Chapman King & Co. had any lien upon that order, but I now know that their compradore came to ask our compradore whether the godown order was all right.  Our compradore told me that he gave no answer except that he would go upstairs to the office to ascertain.  I have said that the merchandise receipt was not endorsed by the manager.  That merchandise receipt is generally regarded as a mere nullity.  It is not the custom to have it endorsed before delivery of goods is given.  I stated we got the invoice of the lead, and the weight there stated was 25 tons and something.  I cannot tell more accurately.  Lead does not generally alter in weight   during a voyage, therefore I was pretty certain about what the weight was.  The price written at the foot of the delivery order is exactly Tls. 1,890.  My object in stipulating that the weight should be ascertained was because I was pretty certain it would weigh more than the amount in the order, in which case I should have made the Chinaman pay more money.  I wanted to ascertain the exact weight.  The reason I put in the clause with regard to weighing by our godown man was to retain a hold on the Chinaman, otherwise the weighing might have been done at sight of the manager of the Wharf.

   To his LORDSHIP: - We do not in all cases put in the words "by our own godown man."  I have never put in that clause before.

   Counsel for the Defendants did not think the witness meant to mislead the court, but the reply he had just made to his Lordship's question, but he (C. for D.) had just been instructed that witness' last statement was unreliable.  He put the question to the wirness, whether he did not usually give orders for lead with these words inserted?  Supposing witness were told by the Manager of the Wharf that he had formerly given orders for lead with these words inserted, would he believe it?

   Witness: - I would like to see the orders.  We have other lead stored there.

   To Mr. RENNIE: - I have no remembrance of having, before this order, given a delivery order for lead.  In giving orders for other things, as for iron, I have inserted the words "to be weighed by our own godown man."

   The Chinese clerk from the Hongkong and Shanghai Bank said that payment of the orders was refused, as the Chinese Banker said it was not his chop.

   Mr. ROBINSON ascertained that this was not the man who presented the orders for payment.  He would therefore admit only that the orders were not paid - not that they were fraudulent.

   First witness resumed: - I now recollect having given orders before in the same form, having relation to lead.

   His Lordship asked whether it was the custom of witness' house to grant orders in the terms referred to.

   Witness: - It is the usual clause to put in the case of weighable goods.

   To Mr. RENNIE; - If we sold to a foreigner, it would be put in in the same way.

   G. G. MAYNE,  sworn,  said:- In lieu of producing the Wharf books, I have made an extract (produced) giving entries of Messrs. Pustau & Co.'s goods referred to in this case.  In the transfer column is an entry on the 2nd November.  Referring to letters which passed, the first note I received was a private one from Mr. Siegfried, and not signed for Pustau & Co.  When subsequently they required the goods, I told them that I could not consider the second order valid unless endorsed by Chapman King & Co.  I would have delivered on any order which they endorsed.  On the morning of the 2nd the Chinaman called on me, showed me the order, and asked to see the lead.  He asked about advances.  I came up to town about the same time as the Chinaman, whom I subsequently met in Chapman King & Co.'s, where Mr.  King asked me if this order was all right.  He also asked me some questions about the lead, and I told him it was all right.  He afterwards told me to hold it to his order, as he had advances on it.  I transferred it accordingly that day.

   To Mr. ROBINSON: - I have been Manager of the Hongkew Wharf Co. for four or five years.  As manager I received, on the 7th July, 1870, ex Geraint, on account of Messrs. Pustau & Co., 335 pigs of lead, and gave receipt for same, which is shown to me.  That lead remained at the Wharf to their account until the 2nd Nov.  On that day a Chinaman came to me with a godown order, No. 54, produced, and asked to see the lead.  After having inspected it he told me that he was to take an advance upon it, and I referred him to the agents of the Wharf. That order is made out in the way in which the plaintiffs usually make out their orders for weighable goods, and such orders mostly (though I have known one or two instances of lead being taken away where they have not) bear the words "to be weighed, on delivery, by our godown man.":  The plaintiffs had no other lead at the Wharf ex Geraint but those 335 pigs.  When I met the Chinaman at Chapman King's offices, Mr. King asked me whether the lead was large or small sized pigs, saying that he had been asked by the Chinaman for an advance on it.  I sent Chapman Kin g & Co. a letter that day, giving the particulars he had asked for.  Mr.  King produced the order to me on that same day, and asked me to transfer the lead, which I did.  He did not write to me about it.  From the 2nd of Nov. I charged whoever presented the order with the wharf charges, as the order distinctly says "delivery to bearer, charges to be to our account to date."  In all cases I grant merchandise receipts, containing a form which says that transfers will not be considered valid until this receipt is produced and the transfer recorded in the Wharf Company's books.  With reputable houses the presentation of these receipts is not required.  I take it they are meant solely for the protection of the Company.

   Holders of these receipts get their goods on presentation of delivery orders; and plaintiffs hold a great many of these receipts, and are in the habit of issuing their delivery orders without getting them endorsed on the merchandise receipts.  I have delivered goods to them so, before and since this time.  It is not the custom for Chinamen to produce the receipt to have the delivery order endorsed, and I have known no case where they did.  Foreigners always issue delivery orders to them.  I remember the form of Messrs. Pustau & Co.'s order.  As to the question of weight, as it did not affect me in any way, I should simply have delivered 335 pigs of lead, no matter what their weight.  Any dispute about w eight I should have left to the parties to settle between themselves.

   To the COURT: - I should have sent to Pustau's to ask them, when delivery was applied for, to send their godown man.

   To Mr. ROBINSON: - Supposing he did not come after a reasonable term, I should still feel bound to deliver the lead.  In my letter of 6th Nov., when I said the lead had not been delivered, I meant not removed from the premises.  I did not mean that there had not been any dealing with the lead, I mentioned that I believed it had been hypothecated to Chapman King & Co.

   To Mr. RENNIE - As a rule the majority of lead delivered from the Wharf is taken away without weighing, but I do not mean to say it is not customary.  I should consider four hours a reasonable notice to Pustau & Co.  I should have delivered the lead without weighing, but I might perhaps have had one of our men to check the weight, though I consider trhe clause with regard to weighing, in the order, had nothing to do with me.  I deliver without the slightest regard to who is bearer.

   To the COURT - In this case I would have checked the weight for Pustau & Co., because I take it they had intended to save themselves, if it proved to be somewhat over 25 tons, but it was a matter really between the buyer and seller.  So far as I am concerned, the stipulation about the weighing is a nullity.

   To Mr. RENNIE. - As regards anything written on the order about weighing, I would only mind it so far as to send notice to the granters of the order to see to it if they thought it.  When banks hold goods, they always keep the merchandise receipts, and they notify me that they have an interest in the goods and to hold them to their order.  I simply make a note of this instruction, exactly the same as I have done in this case.  I know of scores of instances where the agents of the Company, Messrs. Chapman King & Co., made advances on delivery orders.

   Mr. RENNIE said that was his case.

   His Lordship presumed it would be generally agreeable that the Court should adjourn for an hour, resuming at half-past two.

   The Court having reassembled,

   Mr. ROBINSON opened the case for the defendants.  In appearing for the defendants, he was heartily sorry to say, that witrh the materials at his command, he could not respond to the jocose invitation he had received from his learned friend opposite, that morning.  He must say the position of his clients presented nothing humorous to his mind, while the position of the plaintiffs, he considered, presented rather matter for regret than anything else.  But dry as the theory of the law was proverbially reported to be, he hoped the gentlemen of the jury would receive some compensation from their present distraction from their own business, in the elucidation of difficult points bearing upon their everyday avocations.  He thought they would be surprised that, in the year 1871, they should be required to discuss the terms of a document by which they and their predecessors had been conducting business in Shanghai since they came there - a document also forming a usual means of conducting business at home.  And should the plaintiffs succeed in this action, he feared it would unsettle very much the security of mercantile dealings at this port.  He thought the plaintiffs should have hesitated before bringing the action, because the Jury would, he believed, see that it was little else than an attempt to fasten on innocent parties, the consequences of an act for which the plaintiffs had only themselves or their servants to blame.

   His clients had acted in the manner on which the Jury might have expected of them, and not as his learned friend had suggested:  and he believed they would think it extraordinary, that where the plaintiffs had taken the initiative, in investing another with the property right in certain goods which formerly belonged to them, and the same property came in  due course to be held by another party, they should turn round and say, "But this person has not paid us, and is therefore not owner of these goods, and you must be the losers."  Surely if anybody was to suffer loss it was the person who, by his representations, induced strangers to treat the bearer of this godown order as the owner of the goods. The plaintiffs, however, had chosen to raise this question; and the issue which the Jury had to try was whether, as affirmed by the plaintiffs, the goods in question were on the 19th of December their property.

   The date of 19th December was not very material, it was merely fixed on as being the time of the commencement of the action; the important dates were those of the  second and 6th Nov. - everything which was material bore on or referred to those two dates.  And the substantial question occurring was whether there was a bona fide contract to sell, by the plaintiffs to the Chinese purchaser - whether they deliberately gave an order on that contract - whether the defendants made an advance on the goods so obtained by the purchaser, in good faith and in ignorance of any fraud which he might or might not have committed.

   That question depended upon certain facts and upon the principles of law.  What the facts were, it would be for the Jury to ascertain - his Lordship would point out the law affecting them. His Lordship would very likely ask them to ascertain whether, in their opinion, there was on the 2nd Nov. a bona fide contract of sale, the intention of which was that the plaintiffs should deliver and the purchaser receive those 335 pigs of lead - in other words, whether the parties to the transaction stood, on that date, in the relation of vendor and vendee.  His Lordship would also ask them what was the meaning of that contract, a point to the evidence regarding which he would presently draw their attention.  One meaning had been hinted at by his friend opposite, in his question to the shroff of the Hongkong and Shanghai Bank - that there was fraud on the part of the Chinaman when he bought these goods.  He (Mr. R.) could not see that any complaint of fraud was made in the petition, nor that anything in the evidence brought it out; he only thus far referred to it in case the learned Judge should place it before the Jury.  Inasmuch, the plaintiffs say, as property in the goods was obtainbed by fraud, it did not, as in a bona fide transaction, pass from the sellers.

   The first point to be dealt with here was whether there was or was not a contract to sell.  He could not conceive that anything more distinct could well be proved.  They had it admitted by Mr. Siegfried that certain specific goods were the articles sold - nothing was left in doubt on that point.  They had it in evidence that the price agreed to be paid for that article was the sum of Tls. 1,890.  Therefore there was the article bought and the price to be paid.  They had it in evidence also that payment was taken by the immediate receipt of two five-day bank orders, the usual medium of payment in Shanghai, and therefore the whole ingredients of a sale were complete.  The article was ascertained, the price fixed, and the payment settled. It had been proved by Mr. Siegfried, plaintiffs' own witness, as well as by Mr. Mayne, that the former gave a delivery order for these goods to the purchaser, the terms of that order being "please to deliver to bearer" - that it to say, that Messrs. Pustau & Co. deliberately represented to the world that the bearer was proprietor of those goods.

   His friend the Counsel for plaintiffs was perfectly right in saying that the mere possession of the delivery order passed no property whatever, but where the goods were in the possession of a third person, as bailee for the vendor, and a proper delivery order was presented to and accepted by him, such acceptance operated as much a transfer as if they were removed to the purchaser's own warehouse.  It was upon such delivery, and on the assent of the vendor's bailee therefore, that he founded the title of his clients.

   It was a little difficult perhaps to mix up matters of law and fact in addressing a Jury, but he would follow the example of his learned friend for the other side in that respect.  As to what constituted a contract of sale he quoted Calcutta & Co. v. Demattos, in 32 Law Journal, Reports.  In the case they were trying he argued the relations of vendor and vendee existed between Messrs. Pustau & Co. and the Chinaman.

   His Lordship said he perfectly understood that, the only doubt could be whether the possession of the delivery order had been obtained by fraud.

   Mr. ROBINSON said it did not matter, if the relation once existed, how it was managed to be brought about.  That being concurred, he now came to the presentation of the delivery note.  The plaintiffs had not themselves the goods in their own physical possession, but in the hands of the Hongkew Wharf Co. as their bailees; and they gave an order on their bailee, to deliver them to that order.  In elucidation of this point he referred the Court to Addison's Law of Contracts, on the subject of acceptances and receipts of bills of lading, delivery orders and dock warrants.  Here they found it laid down that, before an order has been presented to and accepted by the party to whom it is addressed, it might be countermanded.  Therefore, before this order had been presented by the purchaser to the Hongkew Wharf Co.'s Manager, it might have been countermanded.  In support of the above views he cited Dickinson v. Marrow, and two other cases on the same point.  In the case of Godst v.  Rose, in 25 Law Journal, Common Pleas 61, a case of trover, he wished to apply to the case before them remarks made by Mr. Justice Williams in his judgment.  In the case quoted there was a contract for the sale of 5 tuns of rape-seed oil.  The vendors in that case simply gave an order for some oil, and the oil sold was never identified, and no property in it passed; but if that order had been presented to the Wharfinger, and he, out of the stock in his charge, had set aside and reserved 5 tuns towards it the property would have been passed.  So here, the purchaser did take the order to the wharf and the wharfinger did assent to hold the property for him.  The order is made out "to bearer "- to the whole world who might present it - and by it the property in the goods it referred to passed to the holder for value, so soon as the bailee accepted and acted upon the order; that was the position of the defendants, and it was on that title he founded their property in the goods.

   His Lordship observed that the difference between the case being tried and the one last quoted, regarding oil, by the Counsel for the defendants, was that the seller had there sent the order to the wharfinger.

   Counsel for Defendants agreed that was the case, but Justice Williams laid down that if the purchaser had taken it, the property would have passed.  He (Mr.) had now come to the end of the two points on which it might appear to his Lordship necessary to take the opinion of the Jury - whether there was a contract to sell and the meaning and intention of the parties, and was the delivery order duly presented.

   His Lordship observed that it was necessary to bear in mind, here, that for the contract to be completed the goods must be ascertained.  It might be his duty to ask the jury to consider whether there was any doubt in the minds of the parties to it that when the delivery order was granted they had fully arrived at that.

   Counsel for defendants said that, so far as he had got, what he wished to satisfy the jury, and what for the sake of argument he would assume he had proved, was that there was a sale of a specified article for a specified \price and a specified mode of payment agreed upon.  If the opposing Counsel would satisfy the jury that there was no such sale, then his argument fell to the ground; but if the sale were proved, then, on the authorities he had cited, the property passed.

   He now came to consider the two questions upon which his friend tried to contest the proposition that there was a sale.  The Counsel for the plaintiffs said that the agreement between the plaintiffs and purchaser should have been endorsed on the merchandise receipt, and that there was a reservation as to the weighing of the lead.  To the matter of endorsement there were several replies.  In the first place, the stipulation in the merchandise receipt was intended, not for the benefit of the plaintiffs, but solely for the safety of the wharf.  The latter gave a receipt for say 335 pigs of lead, which receipt remained in the hands of some one.  If they delivered any of those goods, therefore, without a specific order from the original holders of this receipt, prima facie there might be a case against them.  Consequently, for the convenience of the Wharf Company, this clause was inserted, and it was perfectly within their option to waive it; while it could form no consideration between the purchaser of the lead and Pustau & C.  In the next place, what was the evidence with regard to these receipts?  That it was not the custom to present or endorse them, therefore it was apparent that this could form no part of the contract at all.  It was optional to the Wharf Company to refuse to receive the order without the endorsement of that receipt; but it was a useless precaution for them to insert the clause, for they had the regular delivery order given out by them for the gross amount for which they had granted that receipt; and he need say no more than that the custom as to these receipts left the contract in this case where he had left it, a complete one.

   He now came to the next objection raised by his learned friend, viz.; as to the weighing.  His learned friend had said that the weighing of the lead formed an ingredient of trhe contract of sale, and that the price was really not ascertained till this had been done.  That, the speaker submitted, was a matter of fact for the jury to determine, and he asked them in what light they could look at that godown order, after hearing Mr. Siegfried's evidence, and say whether Tls. 1,890 was not the price agreed upon, and whether if the lead weighed more or less that it would have made any difference to the contract.  Whether the lead had weighed 50 tons more or 50 tons less, the plaintiffs had simply sold a quantity stated at a price also stated.  Whatever might have been the agreement with his customer, Mr. Siegfried held out to the world that the bearer should receive 335 pigs of lead ex "Geraint" from the Manager of the Wharf Company.

   Supposing that quantity had been delivered, what complaint could Messrs. Pustau & Co. have against the Wharf Company?  They might say they ordered that it should be weighed by their godown man, which meant only a direction to the Wharf Manager, that they wished to weigh on delivery from the warehouse, when they would be told to look after their own interests, but to all intents the property in those 335 pigs of lead had passed.  Supposing the weight to have been less that what the Chinaman had bargained for, would that have been any reason why it should not have been delivered?  None whatever; the purchaser might have had his remedy in an action for short delivery against the vendors; but in the first place the Wharf Company were bound to deliver to him as far as they could according to the terms of the delivery order.  Again, if the Wharf Company chose to neglect the directions of Messrs. Pustau & Co., with regard to the presence of their godown man at delivery of the lead, they might be subjected to an action for damage if damage could be proved; but that was a matter between Pustau & Co. and the Wharf, and had nothing to do with the holder of the delivery order.

   A question might arise in the mind of the Court as to what was the meaning of the word "delivery."  He would say it meant the physical removal, but if his Lordship had any doubt on that point her would ask him to refer juts decision to the jury.  They would find, although Mr. Siegfried admitted it rather unwillingly, that the order in question had no peculiarity of cautious expression, but was merely the common form used by the house for weighable goods.  He might ask the jury to say whether the stipulation as to weighing was a special one for these goods; but he was at a loss to imagine how Mr. Siegfried could have prevented the Chinaman getting  delivery of the goods the day the order was granted, if the latter had gone to remove them.  Neither could he see how Mr. Siegfried could make a difference between a foreigner and a Chinaman.  The jury would be able to judge whether if a foreigner had granted a check, which was accepted by the sellers, for goods sold on credit, they could stop immediate delivery if it was required. 

   Then, again, if the jury wanted another key to the meaning of the stipulation as to weighing, he was told - the jury might themselves know of it - that scales might be jumbled by Chinamen in a way by which a little more could be got out of such a commodity as lead.  For all substantial purposes, however, who could doubt that in this case the plaintiffs knew perfectly well what lead they were selling.  Moreover, even if there were any doubt on the subject, and he asked the jury whether there was a shadow of doubt in their minds, he would, to show that it was not material, cite, Furley or Tureley v. Bates, 13 Law Journal, Exchequer, page 43.  It was there laid down that where anything remained to be done to goods so as to ascertain the price, as by weighing, measuring or distinguishing them, the performance of these acts to be done as a precedent to the completion of the contract of their sale, shall not be understood to include cases where all that remains to be done is to be done by the buyer, with full authority of the seller.  This where A. agreed to sell and B. to buy a quantity of fireclay at a price per ton, they clay being then stacked in a heap beside the pit belonging to A., and B. being bound to weigh it on a machine close by him, what remained to be done was to be performed by the buyer; and B., having left a portion  of the heap for which he had bargained, a jury, in an action brought by A., found that the contract having been for the whole of the heap the property in it had passed to B., and that he should pay for what was still unremoved. There the buyer did not know what he was to receive, but as the bargain extended to the whole heap, the seller was entitled to be paid even for what was not taken away - the property was held to pass through the price was not ascertained.  But that was a much stronger case than they had to prove here. What he wished to ask the Court wass whether the plaintiffs did not intend a sale to the Chinaman.  He thought he had now completely answered what his learned friend had said were the conditions made precedent to the contract of sale; and he submitted that there were no precedent conditions, that the contract was good without them, and that therefore the property had passed. 

   There were two other points which his learned friend had proved, one that the goods were at one time the property of his clients and that they had revoked their delivery order; the other as to fraud on the part of the purchaser.  Admitting that, he (Mr. R.) submitted that the plaintiff's Counsel had likewise proved, the granting of the delivery order for them, and that order having been presented, and passed to an innocent holder before countermand, the plaintiffs lost their right to revoke.  The only possible claim they could have made to revoke it was in respect of their being unpaid vendors; to which he would answer that when a vendor makes a sale upon credit he waives his lien over the property.  In this case the sale was on a credit of five days; they buyer was entitled to the delivery of the goods at once - the seller to the price only after the elapse of the duration of the credit.  He put on support of this position the case of Spartali v.  Benecke, 19 Law Journal.

   Mr. RENNIE did not think it was necessary to go into that.  If the vendor found that the vendee was insolvent, before delivery was given, he might retain his hold upon the goods.

   Mr. ROBINSON held that in this case the vendors had passed their power over the property before they determined, on the 6th November, to revoke their order.  The only other point to be alluded to was that of intended fraud in the transaction, suggested by Counsel for plaintiffs.  Although no allegation of that was made in the petition, and the vague statement of the shroff of the Hongkong and Shanghai Bank could not be taken as implying it, he would, for the sake of his argument, assume that it was made.  Even then the authorities were clear that where the position of vendor and vendee was shown once to have existed, no fraud on the part of the purchaser could defeat the title of a third and innocent person.  He quoted in support the cases of Pease v.  Gloaec, Law reports Privy Council, page 220.

   His Lordship ob served that fraud could only be supposed to affect a third person by the assumption that the property had not passed from the original vendor to the vendee.

   Mr. ROBINSON continued - If there was a contract of sale of the specific goods now in question, then the giving of the delivery order, and its presentation to and acceptance by the Manager of the Wharf Company, constituted a transfer of the property, and no matter whether there was an intention of fraud or not, on the part of the purchaser, the title of the defendants was good against the plaintiffs.  There was one thing more, which appeared on the face of the godown order, and which seemed to be conclusive.  At the foot it was printed, "please state if the charges are to be paid by bearer or carried to your account, and to wheat date."  Now Messrs. Pustau and Co., who wished it to be understood that they retained the property in these goods, told the Wharf Company to charge them to their account only up to the date of the delivery order, showing clearly what their view was of their relation to the goods after that time.  It appeared also that Mr. Mayne had regard to that instruction, and placed the wharf charges against the holder or bearer of the delivery order from the 2nd of November.

   These were all the remarks that he had to make to them, and he would now call his witnesses, though he was happy to say that the larger portion of the evidence he required was already elicited.  He might have to address the Court again, but would be able to do so more briefly than at present.

   CHARLES JOHN KING, sworn, said - I am one of the defendants in this case.  A Chinaman, on the 2nd Nov., brought me a delivery order of Pustau's, and on his requesting me to lend him money on it I asked him who he was.  He gave the name of Tsun-ta, a well known Chinese merchant in Shanghai, and  said Tsun-ta had sent him to get Tls. 1,000, which he must have that day.  I told him he should have the money upon my obtaining satisfactory answers to inquires I might make about the order.  Mr. Mayne happened to be in the office, and, in a general way, assured me of the lead being in the Wharf; but I requested him to give me certain information, as to whether the lead was marked "L.B.," which signifies a certain  quality, and also as to the size of the pigs, whether large or small.  I then told my compradore to go to Pustau & Co.'s, and to ask whether they had received payment for the lead, as marked at the foot of the order.  He returned with the answer that the money had been paid, but that they were uncertain as to who should pay for the charges.  I presumed it was then all right.  I asked the Chinaman how much he had paid for the lead and he replied Tls. 4.50 per picul, but I said lead was not worth that price then and I should only advance Tls. 4 on it.  I did so, and afterwards instructed Mr. Mayne to transfer it to our account and hold it to our order.

   I knew nothing more till Monday morning, when Mr. Siegfried came to my office and said they could get no payment of their orders for this lead.  He asked particulars of this man, but I could not give him any, other than the name I got.  We called the compradore and asked him questions but he could give us no information.  I told Mr. Siegfried that I only had a lien on the lead, and that they might, if they could do nothing better, redeem it.  I advanced Tls. 1680 on a bona fide understanding that the man's order was all right.  I should not have been surprised to have heard that the payment of which I was informed from Pustau and Co.'s had been in five-day orders, as that is the general form of payment here.

   Cross-examined by Mr. RENNIE - We do a good deal with the Chinese in making advances, for the benefit of the Wharf business, but we are not bound to do so.  I always send the order, for verification, to Mr. Mayne, and then I require the goods to be transferred to our name in the books of the Wharf.  I should have sent some one besides my compradore to Pustau's, but as it was a race day I had no one.  I gave the Chinaman an order on the Hongkong and Shanghai Bank, but the Bank being shut the man returned, and the compradore cashed it.  I believe he did so; and I know the man never told me he had not got the money.  In the case of whole cargo we take a wharf receipt.  If I knew there was a wharf receipt for the lead in question I would still have been quite satisfied that it remained in Messrs. Pustau's hands.  By the weighing clause in the order I understood that it was intended that Pustau and Co.'s man should see the lead weighed.  If lead were sold on invoice, it would likely be taken on the word of the vendor; but in this case I did not know it was a whole invoice.  Still I should not have been surpassed that Messrs. Pustau and Co. might wish to see it weighed by their own man, as lead weighed by a Chinaman here invariably turns out more than the invoiced weight in England.  How this is I do not know, but from the experience of our own firm I have found it to be invariably the case.

   We are agents for the Wharf.  Mr. Mayne would not think it necessary to refer delivery orders to us.  He is so good a manager that though he has been four or five years there, we have never heard a complaint till this occasion.

   AH-HING, Messrs. Chapman King and Co.'s compradore, said he went to Pustau and Co. 'about the order.  He saw their compradore and asked him whether they had got the money all right.  Was answered that it was all right.  The gentlemen were at breakfast.  Came back and told Mr. King that the compradore said so.

   Mr. ROBINSON said that was all the evidence he had to bring, and he wished to recall to the attention of the Court the points on which he relied.  The points on which he asked the jury to decide in favour of the defendants were, that there had been in this case a clear agreement between Messrs. Pustau and Co. and the Chinese purchaser, to sell and to buy a specific article, called 335 pigs of lead, for the specified sum of Tls. 1,890, for which price they further agreed to receive, and did receive at the time, payment in the ordinary mode, and that the payment was made and accepted unconditionally.  His learned friend would probably say that there were precedent conditions, but he would leave it to the Court to say whether the endorsement of the merchandise receipt or the weighing clause did or did not form a special stipulation of this contract, or were merely incidental and formal; and he trusted that, if his lordship formed his opinion on the evidence he had heard, he would have no difficulty in deciding for the defendants.  Then there was the giving of the godown order, and its presentation to and acceptance by the Wharf Company's Manager for the defendants, Messrs Chapman King and Co, and thirdly that the latter became transferees in innocence of any fraud on the part of the Chinaman.

   He would venture to say to his Lordship, if the jury answered these questions as he had stated, that upon the authorities he had cited, the property in the lead had, upon the 2nd of November, passed to Messrs. Chapman King & Co., and had so remained until the present time.  The Counsel for plaintiffs had asked, in his cross-examination of Mr. King, whether defendants were satisfied to advance upon delivery orders without having them endorsed on the merchandise receipt.  That was perfectly immaterial; neither was the practice of the Banks, in taking these receipts up for advances, of any weight here.  Nor supposing they were taken in any and every case would it make one iota of difference, for the receipt had simply the same effect as a godown order, and might be used to supplement, or as a security instead of the latter. 

   He would now trouble the jury with no further remarks at all.  He thought it was a great pity the action was ever brought. The consequence of the adverse decision sought against his clients would be to saddle them with the loss in a truncation between two other persons, and of which they took all reasonable precaution to ascertain the bona fide character.  When applied to for the advance, they sent round to Messrs. Pustau and Co., and, it being a festival time, in the absence of their foreign employees, trusted their compradore with the message, to which he brought a satisfactory answer.  In connection with that part of the matter, it might be well to observe that when Mr. Siegfried wass pressed as to what had been told him by his compradore, the statement was that the compradore had told Mr. King's simply that the gentlemen were at breakfast.  He asked the jury which version was the more probable - that of Mr. King's compradore, whose evidence he had taken, or that conveyed by Mr. Siegfried.  The plaintiffs might have put their compradore in the witness box; but no, they were afraid to do so.  He would now leave his case to the jury, in full confidence of a favourable verdict for his clients.

   Mr. RENNIE followed with the case for the plaintiffs. He believed he would have less to say to the Court and Jury than the Counsel for the defendants had had, for the simple reason that while his learned friend argued there were three questions to be considered, he begged to submit that there was only one, and that one of a very restricted nature.  Before asking their attention to it, however, he would like to refer to what Mr. Robinson had said about the evidence of the compradore. Mr. Robinson had suggested that there was a reason for his not wishing to appear in the witness-box.  There was, but no such an one as had been suggested.  Inasmuch as the compradore's evidence could not have been other than had been drawn from Mr. Siegfried in cross-examination, it had not been thought necessary to detain him in Court all day.  With that remark he would dismiss it; and he now came to the question, one which it seemed to him his Lordship would submit to them, (the Jury).  Mr. Robinson had suggested three questions; first that it was a matter of fact for the Jury to say whether the sale was a conditional one or not.  But that he could not see to be a question which it was necessary to put to the Jury at all.  That there was a sale had been freely granted by the plaintiffs; the only question was whether, in giving the delivery order, there were any restrictions in it intended to make the sale conditional.  The decision of that his Lordship could hardly leave to them, as what was written on the order was written out of Court.

   The only question was the intention of the parties.  In relation to that there was a great deal to show that it was a conditional sale, both by Mr. Siegfried's evidence, and the clause written across the delivery order.  It was further supported by the way in which Mr. Mayne said he treated remarks on delivery orders - he considered himself bound to deliver to the bearer of the order, but also considered himself bound to give four hors notice to the granters of it to send their godown man.  That would prove that the clause as to weighing was entered with some intention on the part of the plaintiffs of preventing delivery till their own godown man was sent to the wharf.

   The second point of the Counsel for the defendants was the giving of the delivery order, and its presentation to and acceptance by Messrs. Chapman King and Co.  But what was alleged, and what his Lordship would tell them as a matter of law did not pass the property, was that the Chinaman neglected to fulfil the conditions of transfer which would have enabled him to invest Chapman King and Co. with power over the goods.  They would see this when they looked at the contract of sale to the Chinaman.  Pustau and Co. gave a document which professes to barter, and the Chinaman, by going to the wharf and taking delivery into his own name, would have completed the transfer; but instead of this he induced Chapman King and Co. to advance on the order, while it was still not a negotiable instrument.  In every case he had discovered, where property had passed by the presentation of a delivery order, transfer in the book or record in which the goods were registered, at the warehouse where they were kept, had always been made to the first purchaser.  The mere fact of Mr. Mayne's seeing this order was not sufficient to constitute that, without his transferring them to the man's name.

   Mr. ROBINSON said he had just been informed by Mr. Mayne that it was never the practice to transfer into a Chinaman's name.  A Chinaman could not be identified in that way; and in this case the name of the native purchaser was not on the order.

   Mr. RENNIE observed that they must take that, however, which was the correct form, for his Lordship would see that if the other practice asserted were acknowledged to be the legal one, the property would be transferable simply by possession of the delivery order.  To apply his friend's view as a general principle, it might be that supposing a coolie were to pick up a godown order in the street, and went to Mr. Mayne, he might require to be received by him as the owner of the goods.

   His Lordship said it was possible that he might in the first instance requite that, till some one turned up to establish a more legitimate claim to the order.

   Mr. RENNIE said, passing from that, his friend contended that the subsequent delivery of the order to Chapman, King and Co., and its being held by them, enabled them to effect a good transfer.  He objected to this view, and submitted that the case cited, of Dickinson and Marrow, was in no way applicable.  The learned Counsel here quoted cases to apply to the view he was supporting, and concluded by saying that plaintiffs had retained their hold upon the goods so as to hold their right upon the price.  Even supposing, however, that the right to the property had passed, the vendors were able to retain and had intended to retain possession till the price had been paid. 

   They now came to the question of  delivery, in regard to which he quoted the principle of law he had once before referred to, that if anything remained to be done on the part of the seller, until that was done the property was not changed.  Notwithstanding the numerous arguments they had had from his learned friend, he would venture to remind the Jury that Mr. Siegfried, in his evidence, told them the goods were sold at so much a picul, while Mr. Mayne had said, from the practice he had seen pursued at the Wharf, he believed it was intended if the lead had weighed less than 335 piculs that the sellers would have paid back a part of the price, while there was a per contra understanding with the buyer.  Therefore the sellers retained possession, since it was a matter of selling by weight, till the price was paid. His Lordship would observe also that the order was to the plaintiff's godown man to weigh and deliver, and that under these circumstances weighing and delivery must precede transfer  of the property, and this condition, he would ask him to tell the Jury, was very strong evidence of an intention on the part of the sellers to retain some hold on the goods till delivery; and if the Jury should be of opinion that the weighing clause was inserted with a view to retaining hold on the goods till delivery he (Counsel for plaintiffs) must ask that the verdict be for his client on that point.

   With regard to the endorsement of the receipt, it was perfectly clear no doubt that this was a theory not carried out in practice, yet it must be borne in mind that its fulfillment might under certain circumstances be considered necessary, and one to which the seller might attach importance.  It seemed to be a great security to the seller that he should not part with his goods till the receipt was endorsed.  Mr. Mayne again said, that whilst it was an invariable practice with bankers to take the higher security of the merchandise receipt, the agents of the company were content to advance upon a simple delivery order.  It did not follow that they should necessarily take the higher security, but it was remarkable that Messrs. Chapman King and Co. should have been so eager to assist the business of the Wharf that, as his friend had remarked, on a  festival day, they advanced money to this Chinaman, after getting no more satisfactory reply to their enquires of Messrs. Pustau and Co. than that the gentlemen were at breakfast, while they further hastened the conclusion of the transaction by cashing the check which they had given.  Mr. King had observed the remark on the delivery order, but it could hardly be said, as had been asserted, that he took every precaution which a prudent man should, and that he was altogether blameless in the matter.

   The position of the defendants was that they had advanced money on the security of goods which the pledger was not in a position to pledge; and they now came into Court to say that, though they had not taken sufficient precaution, and had acted in a loose manner, they were entitled to be considered to have a good claim to the property in question.  He, however, confidently put the opposite issue before the Jury.

   HIS LORDSHIP summed up to the Jury.  A great many points had been brought up by the learned Counsel, but he should not think it necessary to refer to them all.  The law was, that if a vendor sell to another person and that person, after the completion of the contract to sell, defrauds or cheats him in any way, as in the case before them, that vendee, after having got possession, selling to another person, the second purchaser was safe against any claim of the original vendor.  In this case they found that the Chinaman did not get actual possession, but they would have to consider what was the effect of the delivery order; a point which turned upon the nature of the bargain made by the vendor with the Chinaman.

   The law was that if A. contract with B. absolutely for the sale of anything, and either receives the money then or agrees to take it at a future date, the property passed at once.   But supposing the goods to be lodged in a godown or warehouse, and an order given for the delivery of these goods, and there was another condition to be fulfilled, in order to determine wither the price or the quantity to be delivered, then the bargain was not considered to be completed, or at least the property did not pass till that condition was fulfilled. He thought it would seem clear to the Jury as to the non-rendering up of the merchandise receipt that it was not the general practice to take any account of these documents.  The Jury must consider whether the plaintiffs, as a part of their bargain with the Chinaman, stipulated that the goods should be weighed for the purpose of ascertaining the price. 

   The Counsel for the defendant had quoted the case of Turley and Bates, where the purchaser of a stack of fire-clay by weight was compelled to pay for a portion of the stock unremoved.  This was a case quite in point.  They had a contract by which a delivery order was granted to remove 335 pigs of lead, and the price was mentioned in the order.  An explanation of the stipulation had been given in evidence by the plaintiff, but there was nothing to prove a mutual intention with regard to that; and he should leave it to them to say whether there was or was not a conditional agreement, or whether it was simply one for the sale and purchase of a certain defined commodity, the ultimate price of which would not be materially affected by the weighing.  If they thought so, they should find for the defendants.

   If the agreement was a perfect one, or only liable to be modified in so slight a degree that it was to all intents complete, then the property had passed, and they should find that the Chinaman was in a position to negotiate an advance upon it with Messrs. Chapman King and Co, and accordingly being in a verdict for them.  Thus the matter was restricted to a very small compass, and he did not think he need say anything more.

   The Jury having retired for a few minutes returned with a verdict for the defendants.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School