are in his hands, there is no transference of that jus ad rem specificam which follows from a completed contract of sale. It may, therefore, be maintained, with some show of reason, that the position contemplated by the Legislature, in the expression, "goods sold but not delivered," is, that the seller having done all that the contract obliges him to do, is awaiting the performance of the stipulations incumbent on the buyer, by his coming forward, paying the price, and so taking delivery. If this is correct, it would appear that, in such a case as the above, the Statute will not apply, unless the goods sold can be identified as distinct from the rest of the contents of the seller's warehouse.

We are well aware of the doubts that may be entertained on this point, till it is settled by decision. It is evident that much might be said in support of some other constructions of the Act. A distinction might be drawn, for example, between an agreement to supply articles of a like kind and one to deliver a part of a specified heap, e.g., a cargo at sea. The variety of opinion that may be entertained on the subject, just shows the difficulty of affiliating a new rule to a system to which it is an entire stranger, and to the other principles of which it is directly contradictory. The construction we have suggested has the advantage of making the practice uniform with that which now prevails in England-a result which it is the object of the Statute to produce. In that country, a sale of part of a quantity is only treated as an agreement to sell;" till the vendor appropriates to the vendee a specific chattel," the right of the creditors of the seller to attach it, is not excluded.-(See Park J., in Dixon v. Yates, 5 B and Ad. 340; Lord Brougham, in Logan v. Le Mesurier, 6 Morris, P. C. Cases 116; and numerous illustrations in Mr George Ross' admirable Leading Cases in Commercial Law, vol. ii.) The principle seems to be-"Till the parties are agreed on the specific individual goods, the contract can be no more than a contract to supply goods answering a particular description; and since the vendor would fulfil his part of the contract by furnishing any parcel of goods answering that description, and the purchaser could not object to them, if they did answer the description, it is clear there can be no intention to transfer the property in any particular lot of goods more than another, till it is ascertained which are the very goods sold."-(Blackburn on Sale, 122; see Addison on Contracts, 221, and Cases cited.) A distinction is, however, to be observed with respect to a sale by measure and weight, where the whole commodity is sold. In such cases, the subject is specific enough, and the weighing and measuring remain to be done, not for the purpose of identification, but merely to verify the quantity. The property passes, and the seller makes good the deficiency. The sale of a portion of a cargo at sea also appears to be an exception to the general rule. In such a case, a right of property passes in an undivided share, but not in any specific ascertained portion of the cargo.-(Addison, 228.)

3. The third case put was a sale of goods, to be collected and furnished. This, in the Law of England, is only an agreement to sell, because no mere promise to sell hereafter amounts to a present sale. (Parsons, 1, 441.) In Scotland, it is a valid contract of sale; but as there is no right conferred to any special subject, or part of a special subject, the Statute obviously will only apply to those goods which have been appropriated to the buyer, by being collected and made ready for delivery. If bankruptcy occurs before the term fixed for delivery, the goods, unless brought into that position, can scarcely be said to be of the nature of goods sold, but not delivered, in the sense of the Act, or to confer any right to the purchaser over the creditors. It is impossible, however, to anticipate all the questions which may occur on the bankruptcy of a party under such a contract. The case, one of frequent occurrence, will obviously give rise to much litigation.

4. When the contract is for the supply of goods to be manufactured by a certain time, the doctrine as to sale falls to be modified by the law as to locatio operis faciendi, which enters as an element into the contract. Here, in both countries, there is no transference of either property or risk without special appropriation by the buyer. In the general case, the thing contracted for is not a part, but a whole, and, therefore, till the article is ready for delivery, there can be no complete sale, to the effect of saying that the subject is sold, but not delivered. This rule, however, requires modification where the terms of the contract admit of special acts of appropriation. The work may be paid for by instalments, as particular portions are completed. This has been held sufficient appropriation to vest the property. In a case arising under the bankruptcy of a party who agreed to build a ship, which was to be paid for in three instalments, as the work progressed, the Court found that the purchaser was entitled to claim the parts completed and paid for.-(Simpson v. Duncanson, M., 14,204.) This proceeded under the old law as to delivery. Whether a creditor-buyer is entitled, under such circumstances, to claim not only what has been paid for, but the work so far as completed, is, perhaps, another of those questions, of which, in this cursory summary, we have seen the Statute is likely to be the fruitful parent.

II.- -AS REGARDS THE RIGHTS OF THE SELLER.

The duties of the buyer, which may be enforced by the seller, are (1) to pay the price, and perform the other conditions of the contract; and (2) to take delivery, or pay the damage caused by his failure to do so.

When the sale is unconditional, and for ready money, the seller may retain the goods till he is satisfied as to the price. This right of retention differs materially from the English lien. The latter is an extension of the principle, that the person in the position of a

carrier, or innkeeper, or workman, may retain the goods in his hands, the property of another, till he has been indemnified for the expense he has been put to on their account.-(Smith's Merc. Law, 507.) In sale, the goods remain in the hands of the seller, not as his property, but as the property of the buyer, and, unless credit has been given, he has a right to retain them till payment; but this right of retention is lost so soon as he has given up possession. If a portion only has been delivered, the lien extends over what remains in his hands; and if credit has been given, or bills taken, the vendee is immediately entitled to possession; the lien, however, reviving in the event of the vendee's insolvency, or his bills being dishonoured, or on the term of credit being expired. (Miles v. Gorton, 2 C. and M., 504.) Now, in Scotland, the right of retention arises in virtue of the seller's undivested ownership. His right of property in the goods still remains absolute, subject only to the qualification of his personal obligation under the contract of sale to deliver on payment of the price. A party, however, has no right to demand performance of a personal obligation, without himself performing all the obligations which are incumbent on him towards the other. Therefore, as the law formerly stood, the right of retention was not limited to the debt arising out of the one particular transaction respecting the goods in question, but embraced every obligation, liquid and illiquid, of which the seller could at the time demand fulfilment from the buyer. Thus, supposing the price was paid, there was a right of retention for a general balance.(Lord Moncrieff in Melrose v. Hastie, 13 D., 880.)

This general right of retention seems still to remain untouched, so far as regards any question between the original vendor and vendee. But if the latter transfers his undelivered goods to a third party, the vendor's right suffers a material modification. The seller's retention in the case of a sub-sale intimated is (sec. 2) now limited to a security for payment of the purchase money of the goods sold, or such portion thereof as may remain unpaid, or for performance of the obligations or conditions of the contract of sale, "without prejudice to any right of retention competent to the seller, in the case of a sub-sale between him and the subsequent purchaser, or any such right of retention arising from express contract with the original purchaser."

There is no change, however, in the nature and requisites of retention. To found the right, there must still be lawful possession as owner, either by himself, or his servant. It must not be such a possession as that of the workman, in whose hands the goods have been placed for a specific purpose (Harper's Crs. v. Faulds, 1791, Bell's Cases), and where the possession is only a bare right of custody, as in a case of deposit. It arises to the seller "over his own goods undelivered." The right is consequently terminated by delivery. But delivery of part does not necessarily deprive him of the right to retain that portion of which he remains

undivested. On the contrary, delivery of part can only operate as constructive delivery of the whole, when so intended by the parties.(Dixon v. Yates, 1833, 4 B. and C., 941.)

We have hitherto spoken of sale as unaccompanied with any of the conditions which may be the subject of special stipulations among the parties. Whether goods can be considered to be sold and delivered under a conditional sale, will depend upon whether the condition is suspensive or resolutive, precedent or subsequent. If the former, there is no completed sale till the condition is purified by the event being determined, e.g., goods sent on sale and return; or a sale on arrival of the ship on which the goods are aboard. In these cases, neither property, nor risk, nor right to demand delivery passes to the purchaser till the goods are approved, or the ship has arrived. Resolutive conditions have the effect of voiding the sale under certain circumstances; but, in such cases, the sale is complete from the first, and, in general, possession has been obtained. (To be continued.)

THE APPORTIONMENT ACT.

THE Act 4 and 5 William IV, c. 22, was passed in the year 1834; yet, in the case of Bridges v. Fordyce, 7th March 1844, 6 D. B. M. 968, Lord Cuninghame said, that, "Till the year 1842, no lawyer, or man of business practising in any of our Courts, was aware that any change had been recently made on the rights of heir and executor in Scotland. Since 1834, it is manifest that landed property in this country, to a very large amount, must have passed from ancestor to heir. But in cases of intestacy, it has been divided between the two classes of heirs, according to the ancient law of Scotland, no one supposing that it had been rescinded or disturbed." In the same case, Lord Jeffrey stated, that, at the time when the Act was passed, he was the Lord Advocate, but he had no knowledge of its passing.

The first question that arose under the statute was, whether it applied to Scotland at all; the doubt being raised in consequence of the strange language in which it is couched, the greater part of it being unintelligible to a Scottish lawyer. It was decided by the Court of Session, whose judgment was affirmed by the House of Lords (6 Bell's Appeals, p. 1), that the statute was, in its second section, applicable to Scotland. It certainly shows the hap-hazard character of much of our legislation, when a statute affecting interests so important, could have been passed without the knowledge of the profession in Scotland, and that it should have thereafter remained unknown for a period of eight years.

It having, however, been determined that the statute applied to

Scotland, new difficulties arose upon its construction. In the case of Campbell v. Campbell, 18th July 1849, 13 D. B. M., p. 1440, the Lord Justice Clerk said, "There are many words in it to which, in Scotland, we can attach no meaning. There are states of the rights and interests of parties therein mentioned in the leading subject-matter of the enactment, which have no sort of analogy in the law or practice of Scotland, which we cannot understand." And so much difficulty did his Lordship find in the matter, that he suggested that the opinion of English counsel should be taken as to the construction of a British Statute. Lord Cuninghame proposed that an explanatory Act should be passed with reference to our practice. Lord Cockburn, in Blaikie v. Farquharson, 13 D. B. M., p. 1457, added, that the Act "cannot be read, without its being evident that it must have been framed in very unfortunate ignorance or disregard of the language and rules of the law of Scotland. It speaks of rents service, tenants in fee,' 'rents-charge,' 'moduses,' etc., which are all foreign words, and suggest only glimmerings of foreign ideas to us." In the midst of these difficulties, Lord Moncreiff (13 D. B. M., p. 1430) suggested, that the "proper remedy for the difficulties which will constantly accumulate, in the endeavour to apply the provisions of this statute to the working of Scotch leases and Scotch titles of property, is, that a bill should be brought into Parliament to repeal the statute, in so far as it has been held to extend to Scotland; and, if it be thought necessary, to substitute for its provisions other enactments better adapted to the state of property and leases in Scotland, and expressed in terms which the judges in Scotland can understand, and apply by their own lights."

The statute has not been repealed, or explained by any explanatory Act; and we now propose, very shortly, to state the import of the decisions that have been given upon it, without any argument whatever as to its expediency or inexpediency, as bearing on the law of succession.

The second section (which alone is held to apply to Scotland) is in the following terms: "All rents service reserved on any lease by a tenant in fee, or for any life interest, or by any lease granted under any power (and which leases shall have been granted after the passing of this Act), and all rents charge, and other rents, annuities, pensions, dividends, moduses, compositions, and all other payments of every description, in the United Kingdom of Great Britain and Ireland, made payable, on coming due, at fixed periods, under any instrument that shall be executed after the passing of this Act, or (being a will or testamentary instrument) that shall come into operation after the passing of this Act, shall be apportioned to and in such manner, that, on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments as aforesaid, or in the estate, fund, office, or benefice, from or in respect of which the same shall be issuing, or derived, or in the determination, by any other means whatsoever, of the interest of