1476 ALDRIDGE V. JOHNSON ' 7 EL. & BL. 885.

general agent. What passes between the defendant and his nephew cannot limit the
defendant's liability to the plaintiff.
Erie J. I am of the same opinion, and precisely on the same grounds.
Crompton J. I am of the same opinion. I think the evidence sufficient to warrant
a verdict. It was laid down in very early times that one instance of authorizing an
agent to pledge the employer's credit was enough to justify a party dealing with the
employer in assuming that the authority continued. It is no answer, that the
employer here would find it difficult to give notice of withdrawing the agency. As
soon as you have given the agent authority to pledge your credit, you render yourself
liable to parties who have acted upon notice of such authority until you find the
means of giving them notice that the authority is [885] determined. And, on the
first occasion of the authority being exercised, it must always be at a particular place
and for the delivery of goods at a particular place. Here the representation was that
the goods were to be used in the shop: that was evidence for a jury ; and this is the
only question before us.
Rule discharged.

JAMES W I L S H E R ALDRIDGE against PATRICK JOHNSON. Friday, June 5th, 1857.

Plaintiff agreed with K. to purchase from K. 100 out of 200 quarters of barley
which plaintiff had seen in bulk and approved of; and he paid part of the price.
It was agreed that plaintiff should send sacks for the barley, and that K. should
fill the sacks with the barley, take them to a railway, place them upon trucks
free of charge, and send them to plaintiff. Plaintiff sent sacks enough for a part
only of the 100 quarters: these K. filled ; and K. also endeavoured to find trucks
for them, but was unable to do so. Plaintiff repeatedly sent to K. demanding
the barley. K. finally detained it, and emptied the barley from the sacks back
into the bulk.—Held, that the property in so much of the barley as was not put
into the sacks did not pass to plaintiff.—But, per Lord Campbell C.J., Coleridge
and Erie Js., that the portion put into the sacks passed to the plaintiff: hsesitante
Crompton J., on the ground that it did not appear quite clearly that, at the time
when plaintiff demanded the barley, he knew that any portion had been put into
the sacks, and that, therefore, his assent to the particular appropriation was
doubtful.—K. having become bankrupt after he had emptied the barley from
the sacks into the bulk, and the defendant, his assignee, having removed the
whole together: Held, by the whole Court, that this was a conversion, by the
assignee, of all the barley (if any) which, by the putting it into the sacks, had
become plaintiff's property.
[S. C. 26 L. J. Q. B. 296; 3 Jur. N. S. 9 1 3 ; 5 W. R. 703. Discussed and applied,
Langton v. Higgins, 1859, 4 H. & N. 407. Distinguished, Jenner v. Smith, 1869,
L. R. 4 C. P. 276. Referred to, Heilbutt v. Hickson, 1872, L. R. 7 C. P. 450.
Explained and approved, Anderson v. Morice^ 1876, 1 App. Cas. 739.]
This was an action brought by the plaintiff to recover certain goods alleged to be
his property, and to have been detained by the defendant; or the value of such goods,
and damages for their detention; and also to recover damages for the wrongful
conversion of the same goods by the defendant.
The defendant pleaded to the whole declaration : 1st, Not guilty; and, 2dly, that
the goods were not the plaintiff's property.
[886] On the trial, before Erie J., at the Sittings in London in last Hilary Term,
a verdict was found for the plaintiff, by consent, for the whole amount of his claim,
and costs 40s., subject to the opinion of the Court upon the following case.
The plaintiff is a corn merchant at Witham in Essex; and the defendant is the
official assignee of the estate and effects of one James Watling Knights, a bankrupt,
who, up to the time of his bankruptcy as hereinafter mentioned, carried on business
at Ipswich in Suffolk as an auctioneer and seed merchant.
On 12th September 1856, the plaintiff took 34 bullocks to Ipswich for the purpose
of having them sold by auction by the said J. W. Knights, and instructed Knights to
sell them if they should fetch a certain price. They did not, however, fetch that
price; and consequently were bought in by the plaintiff. Knights then informed the
plaintiff that be had a quantity of barley in his granary, and proposed to exchange a

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7 EL. & BL. 887.' ALDRIDGE V. JOHNSON 1477
portion of it for the plaintiffs bullocks. The plaintiff went, and looked at the barley,
which consisted at that time of one large heap containing between 200 and 300
quarters. He weighed a bushel of it for the purpose of ascertaining its quality, and
took a sample away with him; but no bargain was made on that day ; and the bullocks
were sent to Colchester the same evening. On the following day (13th September)
the plaintiff and Knights were at Colchester market; and the plaintiff sold two of
his bullocks there: after which a conversation took place, between the plaintiff and
Knights, upon the subject of the exchange proposed on the previous day, which
resulted in the following arrangement between them.
It was agreed that Knights should have the remaining [887] 32 bullocks at the
price of 61. a-piece, and that the plaintiff should take in exchange 100 quarters of the
barley which he had seen at Ipswich the day before, at the price of 21. 3s. a quarter.
The difference between the value of the barley and of the bullocks, viz. 231., was to
be paid in cash by the plaintiff to Knights. It was further agreed that the plaintiff
should send his own sacks to Ipswich on the following Monday (15th), and that
Knights should fill the sacks with the barley, take them to the railway, and place
them upon trucks, free of charge, to be conveyed to the plaintiff at Witham. Some-
thing was also said about a sum of 201. 7s., which the plaintiff owed Knights for some
goods which he had previously purchased : but it was agreed that this transaction
should not interfere with the arrangement which was then being made.
As soon as this arrangement was effected, the plaintiff made the following note of
it in his pocket book.
"Septr. 13. J. W. Knights exchange
32 beasts at 61. 0s. Od. for barley.
J. W. Knights,
100 barley 43/
£215 barley
less b \ £192 beasts
£ 2 3 money to pay."

And the 32 bullocks were then and there delivered by the plaintiff to Knights.
On the following Monday, pursuant to the above arrangement, the plaintiff sent
to Ipswich 200 sacks (being a sufficient number to contain the whole 100 quarters of
barley). Some of these sacks were marked in the plaintiffs name; and they were
all duly received by Knights: but the barley was not delivered or for-[888]-warded
to the plaintiff. On 16th September the plaintiff wrote to Knights for a sample of
the barley, which was accordingly sent. On 17th September, Knights sent one of
his men, named Abel Smith, to fill 155 out of the 200 sacks with barley from the
above mentioned heap: and accordingly Smith proceeded to the granary, and, with
the assistance of other persons, filled 155 of the sacks with barley from the heap (each
sack containing one coomb, or half a quarter). After the sacks had been filled, there
was left in the heap some 70 or 80 quarters ; so that the quantity put into the sacks
was only about half the bulk. By the further direction of Knights, Smith applied,
the same day, at the railway station at Ipswich for some trucks, to convey the 155
sacks to the plaintiff at Witham, but was not able to obtain any. On the following
Saturday (20th), the plaintiff again saw Knights at Colchester market, and complained
to him of the non-delivery of the barley. He said he was sorry that he had not sent
i t ; but that he had been very busy, and unable to get trucks; and that it should be
sent on the Monday following without fail. On the following Monday morning (22d)
Knights gave directions to a clerk in his employ, named Mulley, to get some trucks,
and have the 155 full sacks, which were then standing in the granary, put upon them
to be sent to the plaintiff. Mulley accordingly applied for the trucks, but without
success. After giving these directions, Knights himself went up to London, saw the
plaintiff in Mark Lane, and told him that the barley would be put upon the rail
that day.
In the course of the same morning, the plaintiff had sent to Ipswich a person in
his employ, named Church, to demand of Knights the 100 quarters of barley. [889]
Accordingly, Church called at Knights* about noon, and found that he was away
from home, but saw Mulley, and demanded the barley of him. Mulley said that he
could get no trucks to put it upon, and that Church had better try himself to get
some: that, if he could procure any, the barley should be put upon the rail that

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1478 ALDRIDGE V. JOHNSON 7 EL. & BL. 890.

afternoon; but that, at any rate, it should be forwarded the first thing the next
morning. After this, Church returned to Witham.
While the above communication was passing between Mulley and Church, the
former received from Knights a telegraphic dispatch in the following terms.
" The following message forwarded from Mark Lane station, and received at
Ipswich town station, Septr. 22, 1856.
From To
Name and'! JT w
W
^
K m
. ,, Name and) n « u
Address. ) " ' ^ - A d d r e s s . J G. Mulley,
Quay House, Ipswich.
" If you have not put oats on rail, do not, nor allow more barley to go, if applied
for. Private."
The barley mentioned in the said dispatch was the same barley in respect of which
Knights had given Mulley directions in the morning: but Mulley did not mention
to Church the contents of the dispatch, nor the fact that he had received any com-
munication from Knights.
The barley was not forwarded to the plaintiff the next day, but remained in the
sacks till the following Wednesday; when Abel Smith, by Knights' directions, turned
it all out of the sacks again on to the heap from which it was taken, so as to be
undistinguishable from the rest of the heap.
[890] On Thursday, 25th September, in consequence of information which the
plaintiff had received, he went himself to Ipswich and saw Knights at his own house.
He remonstrated with him for not sending the barley; and, after some conversation,
Knights stated that he was sorry to say he was in trouble, and had a notice of
bankruptcy served upon him. On 29th September, Knights filed a petition for
arrangement under the 211th section of The Bankrupt Law Consolidation Act,
1849 (stat. 12 & 13 Vict. c. 106). And, at the first sitting which was held in the
matter of that petition, on the 4th November following, Knights was adjudicated a
bankrupt; and the defendant was then named and made the official assignee of his
estate and effects.
The plaintiff had, previously to this, taken out a summons against Knights before
the borough magistrates at Colchester; which was heard on the 30th October, and
dismissed. After the hearing, the plaintiff and his attorney's managing clerk,
Mr. Beaumont, went to Ipswich: when the latter served a copy of the following
notice, signed by the plaintiff, upon Lewis Blomfield, the messenger of the Court of
Bankruptcy, who was then in possession of all Knights' property.

" Notice.
"Without prejudice to the notice or demand made by me on my behalf on or
about the 22d day of September 1856.
" T o James Watling Knights, of Ipswich, in the county of Suffolk, auctioneer, or
whom else it may concern.
" I hereby demand the delivery by you of 100 [891] quarters of barley, my
property, now being in or upon your warehouse or premises at Ipswich in the county
of Suffolk, and sold by you, the said Jas. Watling Knights, to me, on or about the
13th day of September last.
"Dated the 30th day of October, 1856. " J . W. ALDRIDGE."
At the time of the service of this notice, Mr. Beaumont tendered to the messenger
231. in cash, as the money balance due from the plaintiff to Knights for the barley.
The messenger received the notice, but refused to take the 231. This was the first
occasion on which any tender of the 231. had been made by or on behalf of the plaintiff.
On 11th November the following demand, signed by the plaintiff, was served upon
the defendant.
" To Patrick Johnson Esq., Official Assignee,
" Basinghall St. London.
" In the matter of James Watling Knights, of Ipswich in the county of Suffolk,
corn merchant, dealer and chapman, a bankrupt.
"Sir,—I hereby demand the delivery of 100 quarters of barley, agreed by the above

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7. EL. & BL. 892. ALDRIDGE V. JOHNSOtt 1479
named bankrupt, on the 13th day of September last, to be delivered to me in exchange
for 32 bullocks then sold and delivered by me to him : and I now tender you (although
I protest against it being considered that I am liable so to do) the sum of 231., being
the difference between the agreed price of the said barley and the agreed price of the
said bullocks.—"I am, Sir, your most obedt. Servt.
" J A S . W I L S H E R ALDRIDGE.
"Witham, 10 November, 1856."

[892] And, at the time of the service of this demand, 231. in cash was duly tendered
to the defendant, as being the balance due from the plaintiff as aforesaid.
The demand was not complied with ; and the money was not accepted.
On 18th November this action was commenced.
The said 200 sacks remained upon Knights' premises until the bankruptcy, when
they were taken possession of by the assignees. On 24th December, an order was
made in this action by Coleridge J. in the following terms.

"Upon hearing the counsel on both sides, I do order that, upon the defendant's
delivering up or tendering to the plaintiff 200 sacks, being the sacks in the declaration
mentioned, and paying nominal damages and costs, the proceedings herein be stayed.
"Or, if the plaintiff will not consent thereto, that he be subject to the costs of the
action, unless he obtain a verdict for some of the other goods in the declaration
mentioned, or damages beyond nominal damages for the detention of the sacks in
question. And I order that the plaintiff be at liberty to amend the declaration, by
inserting a claim for special damages as to the detention of the sacks. I certify for a
counsel.
"Dated the 24th day of December, 1856. " J . T. COLERIDGE."

On 29th December 1856, Louis Blomfield, the said messenger, went to the plaintiff's
house and made a tender, on behalf of the defendant, to Mrs. Aldridge, the plaintiff's
wife, in his absence, of the 200 sacks, and damages for the detention thereof, in
accordance with the above order. At first she refused to take them; but afterwards,
having seen the plaintiff's attorney, she [893] received back the sacks, but would not
take the Is. damages.
It is agreed that the defendant would at any time have given up the sacks to the
plaintiff, had he been requested so to do.
The barley remained at Knights' granary until Christmas last, when it was
removed : and the value of it remained the same, viz. 21. 3s. per quarter, from the
time of the above mentioned assignment until after the commencement of this action.
The damages sustained by the plaintiff being deprived of his sacks was at the rate
of one penny per week for every sack.
The action was commenced originally against both the assignees of Knights' estate :
but, on the 21st of January last, the name of one of the defendants was struck out of
the proceedings by an order of Mr. Justice Crompton.
The pleadings in this action are to form part of this case; and the questions for
the opinion of the Court are:
1. Whether the issues joined in the said action, respectively should be found for
the plaintiff or for the defendant.
2. If the plaintiff is entitled to maintain the action for what goods or moneys the
verdict found for him is to stand.
Bittleston, for the plaintiff. The first question is, whether, before the bankruptcy,
the property in the barley passed to the plaintiff; secondly, whether, if so, there was
a conversion by the defendant. There is no question as to apparent possession, the
bankrupt not having had possession by the consent of the plaintiff.
[894] As to the first question, the plaintiff contends that all the hundred quarters
passed. The principal part of the consideration, the bullocks, was received by the
bankrupt: and barley was delivered into the plaintiff's sacks in pursuance of the
bargain. It is true that all the barley was not so delivered : but what was delivered
was taken from a specific heap; and that sufficiently defined the identity. [Crompton J.
Which hundred quarters was the plaintiff to have?] Whatever hundred the bankrupt
might put into the plaintiff's sacks. [Crompton J. That might be any hundred.
Lord Campbell C.J. Eeally your proposition as to the whole ia not tenable.] The

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i486 ALDRIDGE U JOHNSON T EL. & BL. 895.

plaintiff then insists only on the portion put into the 155 sacks. By the arrangement,
the plaintiff was to send his own sacks : he does send them; and the bankrupt delivers
the barley into them, and does all that is in his power to send them off. That trucks
could not be found at the time, to dispatch the sacks, does not render this the less a
delivery. [Lord Campbell C.J. Suppose the plaintiff had been present, and had, after
the barley was put into the sacks, sealed up the sacks, without taking them away.]
No doubt the property would then have passed: and what actually took place was
quite as effectual. [Lord Campbell C.J. Certainly the property may be in the vendee
though it is in the manual possession of the vendor.] That is so. In Bohde v. Thwaites
(6 B. & C. 388) a vendor sold twenty hogsheads of sugar out of a larger quantity : he
delivered four, and filled up and appropriated other sixteen, desiring the vendee to
take them away: the vendee said that he would take them as soon as he could: and,
in an action [895] by the vendor for goods bargained and sold, it was held that the
property in the sixteen passed, though they were not removed from the premises of
the vendor. [Erie J. That case would be exactly in point if there it appeared that
there remained a duty, on the part of the vendor, to forward. Crompton J. You will
say that the sacks were in the bankrupt's hands in order that he might perform a certain
duty, not that he might otherwise meddle with them.] Yes. [Lord Campbell C.J.
You say that his doing more was a wrongful conversion.] It was so. There was no
question as to the bankrupt's original intention to appropriate; for he gave orders
to send the sacks away by the railway. It is immaterial that there was no tender
before the bankruptcy. But, indeed, no tender was necessary at all: there was no lien.
Nor did the bankrupt or defendant profess to hold the barley on the ground that
it might be retained till the money was paid. The assignee can be in no better
position than the bankrupt.
Then as to the conversion. [Crompton J. When you demanded the barley of the
assignee, what was he to do? How could he separate your barley from the rest?
You have a case against the bankrupt: but how could the assignee deliver1?] The
bankrupt could not, by having mixed up the plaintiffs property with his own, gain
the right of retaining it: nor can his assignee be in a better position. [Crompton J.
The assignee is not liable for the tortious act of the bankrupt. Erie J. Where a party
mixes up another man's property inseparably with his own, the consequence is that
he loses his own. Lord Campbell C.J. Yes, unless the portion mixed up be quite
insignificant. Erie J. Then, if the [896] plaintiff was entitled to take the whole from
the bankrupt, he would be entitled to take it from the assignee.] Those consequences
would follow. [Crompton J. I find it stated that the whole was removed : that must
mean, a removal by the assignees.] That is enough to constitute a.conversion.
But, further, there is at any rate no defence as to the sacks. [Crompton J.
Surely that point is disposed of by my brother Coleridge's order.] Then that is
not insisted on.
Prentice, contra. The barley placed in the sacks was taken from the bulk, of which
an unascertained hundred quarters had been sold: the particular portion placed in the
sacks was not sold. [Crompton J. The property would not pass if any thingremained
to be done by the vendor.] In order that the separation of the particular quantity
may effect a transfer of the property there must be an assent by the vendee; the
reason of which is, that the vendee is entitled to see that the portion separated corre-
sponds with the bulk. [Erie J. If the portion is separated in conformity with the
contract, surely the property in that passes.] The vendor might have substituted
another portion before the sacks arrived at the railway : till then the property did not
pass, by the agreement. In Blackburn's Treatise On the effect of the Contract of Sale,
p. 126, the law is thus stated: "the specific goods must be agreed upon; that is,
both parties must be pledged, the one to give and the other to accept those specific
goods." Here, though the vendee did assent to the goods being placed in his sacks,
the property did not pass till he had inspected the barley. Holroyd J., [897] in
Bohde v. Thwaites (6 B. & C. 393), makes not only the selection by the vendor essential,
but also the " adoption of that act" by the vendee. Suppose the goods had been burnt.
[Erie J. That was the test in my mind : I think the plaintiff would have had to bear
the loss, according to the principles laid down in Rugg v. Minett (11 East, 210).]
In p. 128 of Mr. Blackburn's Treatise, the final appropriation which transfers the
property is stated to take place when the party who is to do the first act makes the
election, the property being made certain by such election; for which Sir Rowland

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7 EL & BL. 898. ALDBIDGE V. JOHNSON 1481

Heyward's Case (2 Kep. 35 a.) is cited. Here the act to be done was dispatching the
barley. [Erie J. Mr. Blackburn has expressed himself with perfect accuracy. He
says : " where from the terms of an executory agreement to sell unspecified goods, the
vendor is to dispatch the goods, or to do any thing to them that cannot be done till
the goods are appropriated, he has the right to choose what the goods shall b e ; and
the property is transferred the moment the dispatch or other act has commenced, for
then an appropriation is made, finally and conclusively, by the authority conferred in
the agreement."] In the case of goods sent by a carrier, the delivery to the carrier
is the transfer. The necessity of commencing the act agreed upon in, in order to fix
the appropriation, appears by the two cases cited by Mr. Blackburn, Fragano v. Long
(4 B. & C'219) and Atkinson v. Bell (8 B. & C. 277). Here the act agreed, upon was
the sending: nothing short of that fixed the property. Wallace v. Breeds (13 East,
522) illustrates this. Further, the contract was indivisible: putting a portion into
the sack [898] could not transfer the goods sold. [Lord Campbell C.J. Do you say
none passed *?] Yes : the plaintiff might have refused to receive a part. [Crompton J.
Is there not evidence that the plaintiff assented to the appropriation 1 Did he not
know of if? Lord Campbell C.J. May there not be an anticipative assent—"I will
take to what you put into the sacks—'"?]
Then, next, there was no conversion by the assignee. If there was any conversion,
it was completed by the bankrupt: after that, his assignee could not convert. [Lord
Campbell C.J. That is not so. If a man takes my horse he converts i t : if he hands
it over to another, who refuses to give it up to me on demand, that other converts
also. If the bankrupt had divested the property from the plaintiff it would be other-
wise : but he has only done a wrongful act. Here the assignee denies the plaintiff's
claim to any p a r t ; and he is right in claiming all, if the former part of your argument
be correct.] No distinct act of conversion by the assignee is shewn.
Bittleston, in reply, was stopped by the Court.
Lord Campbell C.J. In cases of this sort there often is great doubt and great
difficulty ; but the present case seems to me, on both points, free from all doubt and
difficulty. I think that no portion of what remained in bulk ever vested in the
plaintiff. We cannot tell what part of that is to vest. No rule of the law of vendor
and purchaser is more clear than this: that, until the appropriation and separation
of a particular quantity, or signification of assent to the particular quantity, the
property is not transferred. Therefore, [899] except as to what was put into the 155
sacks, there must be judgment for the defendant. It is equally clear that, as to what
was put into those sacks, there must be judgment for the plaintiff. Looking to all
that was done, when the bankrupt put the barley into the sacks eo instanti the property
in each sack-full vested in the plaintiff. I consider that here was a priori an assent
by the plaintiff. He had inspected and approved of the barley in bulk. He sent his
sacks to be filled out of that bulk. There can be no doubt of his assent to the appro-
priation of such bulk as should have been put into the sacks. There was also evidence
of his subsequent appropriation, by his order that it should be sent on. There remained
nothing to be done by the vendor, who had appropriated a part by the direction of
the vendee. It is the same as if boxes had been filled and sent on by the bankrupt,
in which case it cannot be disputed that the property would pass: and it can make
no difference that the plaintiff ordered the sacks to be forwarded by the vendor. As
to the question of conversion, the property being in the plaintiff, he has done nothing
to divest himself of it. It is not like the case of confusion of goods, where the owner
of such articles as oil or wine mixes them with similar articles belonging to another.
That is a wrongful act by the owner, for which he is punished by losing his property.
Here the plaintiff has done nothing wrong. It was wrong of the bankrupt to mix
what had been put into the sacks with the rest of the barley; but no wrong has been
done by the plaintiff. That being so, the plaintiff's property comes into the hands of
the defendant as the bankrupt's assignee. If the defendant had a lien, he does not
detain the barley on that ground. He denies the plaintiff's [900] property altogether,
and cannot therefore claim a lien. He claims all the barley, and claims all of it as
being the property of the bankrupt. He therefore has converted the plaintiff's
property.
Coleridge J. I am of the same opinion. I think the property in that portion which
was put into the plaintiff's sacks passed to the plaintiff. That portion was sub-
tracted by the vendor from the bulk, in part performance of the contract; and there is
K. B. X L V I I I . — 47*

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abundant evidence of appropriation, as far as the bankrupt could appropriate. There

is also abundant evidence of assent by the plaintiff. He had before assented to the
quality of the bulk; and, after the portion was put into the sacks, he desired that
they should be sent to him. There is thus evidence of the completion of the act of
appropriation. Atkinson v. Bell (8 B. & C. 277) is a very different case. There the
goods were in the course of being made; and many alterations had taken place; and
the purchaser had never done any act by which he adopted the particular thing made.
Here is a complete appropriation. As to the conversion, nothing that either the bank-
rupt or the assignee could do without the plaintiff's consent could divest the plaintiff's
property : and the removal is abundant proof of the conversion.
Erie J. I also am clearly of opinion that the property in what was pilt into the
sacks passed to the plaintiff. It is clear that, where there is an agreement for the sale
and purchase of a particular chattel, the chattel passes at once. If the thing sold
is not ascertained, and [901] something is to be done before it is ascertained, it does
not pass till it is ascertained. Sometimes the right of ascertainment rests with the
vendee, sometimes solely with the vendor. Here it is vested in the vendor only, the
bankrupt. When he had done the outward act which shewed which part was to be
the vendee's property, his election was made and the property passed. That might
be shewn by sending the goods by the railway: and in such case the property would
not pass till the goods were dispatched. But it might also be shewn by other acts.
Here was an ascertained bulk, of which the plaintiff agreed to buy about half. It
was left to the bankrupt to decide what portion should be delivered under that contract.
As soon as he does that, his election has been indicated; the decisive act was putting
the portion into the sacks. If it were necessary to rest the decision on the assent of
the vendee in addition to this, I am of opinion that there is abundant evidence of
such assent; for the vendee demanded, over and over again, the portion which had
been put into the sacks. I think Mr. Blackburn has expressed the law with great
clearness and accuracy. He first takes the case where one party appropriates and the
other assents; and then the case where, by virtue of the original agreement, the
authority to appropriate is in one party only. As to the question of conversion, I
am of opinion, on the grounds which have already been stated, that the assignee has
converted the plaintiff's property.
Crompton J. As to the first point, respecting the part not put into the sacks, I
never felt any doubt. As to the second point, I do not feel so clear as the other
members of the Court, though I do not say that I [902] disagree with them. It is
suggested that the plaintiff said to the bankrupt, in effect, I will buy what you will
put into the sacks. After that was done, I much doubt whether the bankrupt could
meddle with the sacks and turn out what had been put in. It may be that the
bargain was as my Lord and my brother Erie put it, that the plaintiff would take
what the vendor should put in. On that view, when the barley was put into the
sacks it was just as if it had been sent by a carrier. Also I agree that, if the plaintiff
sent for the barley after it was in the sacks, that would be an assent to the appropria-
tion. But I doubt whether, as the case is stated, it is quite clear that the plaintiff
knew that the barley had been put into the sacks: if he did, there was clear evidence
* of assent. Then it is argued, on behalf of the defendant, that the contract was entire,
and that either all or none of the barley must pass. I do not agree to that. There
was an appropriation of so much ; and so much passed. As to the conversion, the law
is, beyond question, as my Lord puts i t : a prior conversion does not prevent a subse-
quent conversion; the true owner may waive the first conversion. It is difficult to
say what the assignee was to do. But I think that, if he remove all, it is a conversion
of the part which belongs to the plaintiff; if he sells all, an action for money had and
received may be brought in respect of that part. I think therefore that, as he has
removed all, he has been guilty of a conversion.
Judgment for plaintiff, as to the part put into the sacks: as to the residue, judg-
ment for defendant.

[903] JAMES DIXON, Executor of Alexander Dixon, against HOLDROYD. Friday,

June 5th, 1857. By deed between D. and H., D. sold to H. beds of coal, and
H. covenanted to pay to D. a sum named for the purchase money, "in manner
and at the times following," that is to say, part in cash on the day of the date of

HeinOnline -- 119 Eng. Rep. 1482 1378-1865