The defendants sold to the plaintiffs all the hemp that might be shipped on board certain vessels at Riga, not exceeding 300 tons, by Messrs. Schmids & Co., the agents of the concern: the Messrs. Schmids shipped on board these vessels only 71 tons of hemp on account of the defendants, but upwards of 300 tons on account of other persons: and it was held that the contract must be confined to such hemp as the Schmids should ship as agents to the defendants, and that the defendants were not answerable to the plaintiffs for more than the 71 tons. Lord Ellenborough said: "As all the hemp which the Schmids were to ship at Riga was not to belong to the defendants, this renders it improbable that they should mean to sell what was not their own. In the case alluded to (Splidt v. Heath, 2 Campb. 57, n.), the party had agreed to ship and deliver a certain quantity of hemp; and, to be sure, nothing could excuse him from doing so. But here the defendants only sold what they supposed their agents would ship for them. No doubt they expected Schmids & Co. to ship at least 300 tons of hemp on their account but they were disappointed. They seem to have contemplated the possibility of this. They say, in substance, We will sell you all that our agents at Riga ship for us, to the amount of 300 tons. If they send us so much, you shall have it; if they send us none, we have sold none to you.' The words employed are by no means strong enough to intimate that they had undertaken to sell that which did not belong to them, and over which they had no control." 2. The contract in question is one of a class which is common in modern times, where the

sale is of goods to arrive," or "on arrival." With the excep- [*696

tion of Fischel v. Scott, this is the first case in which the words used have been "expected to arrive."(a) It is a somewhat stronger expression than the others; and shows that the parties are dealing with a thing which they know something about. The word "expected" is not inserted with a view to the protection of the vendor in case the vessels should be lost; for, that contingency is expressly provided for. [COCKBURN, C. J.-The same words occur in the contract in Johnson v. Macdonald, 9 M. & W. 600;t and they were held not to have the effect of altering the contract, which was conditional on the double event of the arrival of the vessel with the goods on board. CRESSWELL, J.-My Brother Parke treats those words as superfluous; and so they are, if the contract is conditional.] It is submitted that the whole is

(a) See Bold v. Rayner, 1 M. & W. 343.† A broker gave the following bought and sold notes:-1. "We have this day bought for your use, from J. O. Bold, 100 tons dry palm-oil, at 317. 108. per ton, to be taken from the quay at landing weights, with customary allowances, &c., in cash at fourteen days from delivery, less 2 per cent. discount: the above oil to be delivered from the Speedy or Charlotte, expected to arrive about November or December next." 2. "We have this day sold, for your use, payment in fourteen days, by cash, less 24 per cent. discount, from delivery, 100 tons dry palm-oil, at 317. 108. per ton, ex Speedy and Charlotte, to arrive:" It was held, that evidence of mercantile usage was admissible to explain all the variances between these notes, and that, being so explained, the variances were not material, and did not avoid the contract.

conditional here, as well as in that case. [CRESSWELL, J.-The words are, "expected to arrive in London:" does that import a condition that the goods shall arrive in London ?] In Lovatt v. Hamilton, 5 M. & W. 639,† the contract was for goods "to arrive per Mansfield," and it was held that their arrival in that vessel was a condition precedent, and that the vendors were not entitled to have goods brought

*697] in another vessel. So, here, if the goods came to Liverpool,

the defendants would not be bound to deliver them. The words "now on passage," it is submitted, do not amount to a warranty. They are really put in in order to protect the sellers. [COCKBURN, C. J.—Why are we to assume that those words are put in to protect the sellers, and not for the benefit of the buyers?] To make an affirmation at the time of sale a warranty, it must appear to have been so intended: see the notes to Chandelor v. Lopus (Cro. Jac. 4), 1 Smith's Leading Cases, 4th edit. 140; Budd v. Fairmaner, 8 Bingh. 48 (E. C. L. R. vol. 21), 1 M. & Scott, 74 (E. C. L. R. vol. 24); Jendwine v. Slade, 2 Esp. N. P. C. 572; Dunlop v. Waugh, Peake's N. P. C. 167; Gwillim v. Daniell, 2 C. M. & R. 61.† That the words here used are words of condition or description only, is fortified by the recent decisions as to the warranty of sea-worthiness in policy cases: see Gibson v. Small, 4 House of Lords Cases, 353, Jenkins v. Heycock, 8 Moore's P. C. Cases, 351, Michael v. Tredwin, 17 C. B. 551 (E. C. L. R. vol. 84), and Fawcus v. Sarsfield, 6 Ellis & B. 192 (E. C. L. R. vol. 88). (a) The words "the vessel to sail from England on or before" a given day, were, in Glaholm v. Hays, 2 Scott, N. R. 471, 2 M. & G. 257 (E. C. L. R. vol. 40), held to be a condition; but they have never been held to amount to a warranty. [COCKBURN, C. J.-If it be a condition precedent on the one side, it is a contract to be performed on the other.] No doubt, it may be both. [CRESSWELL, J.-According to the party who wishes to take advantage of it. CROWDER, J.-In Ollive v. Booker, 1 Exch. 416,† Parke, B., holds a statement in a charter-party of the vessel being "now at sea, having sailed three weeks ago," to be a warranty, and not a representation, that the vessel had sailed three weeks; and *therefore a condition precedent.] The word "war*698] ranty" is constantly used, though in truth it is only a condition. 3. The ground upon which the decision of the case must ultimately rest, is, that the parties were contracting for the purchase and sale of specific packages of gambier which had been shipped and were then on board the vessels named. The contract being for a specific thing, it is satisfied by the delivery of the article mentioned: Chanter v. Hopkins, 4 M. & W. 399;† Parsons v. Sexton, 4 C. B. 899 (E. C. L. R. vol. 56); Ollivant v. Bayley, 5 Q. B. 288 (E. C. L. R. vol. 48); Gompertz v. Bartlett, 2 Ellis & B. 849 (E. C. L. R. vol. 75); Young v. Cole, 3 N. C. 724 (E. C. L. R. vol. 32), 4 Scott, 489; Gurney v. Womersley, (a) And see M'Swiney v. The Royal Exchange Assurance, 14 Q. B. 634 (E. C. L. R. vol. 68).

4 Ellis & B. 133 (E. C. L. R. vol. 82); Prideaux v. Bunnett, 1 C. B. N. S. 613 (E. C. L. R. vol. 87). Cur. adv. vult. COCKBURN, C. J., now delivered the judgment of the court:This was an action for breach of contract, in not delivering 1170 bales of gambier, pursuant to a contract of sale whereby the defendants contracted to sell and deliver to the plaintiffs 1170 bales of gambier, stated to be "now on passage from Singapore, and expected to arrive at London; 805 bales per Ravenscraig, and 365 per Lady Agnes Duff, at 158. 6d. per cwt. ;" with a proviso that, should either or both vessels be lost, the contract was to be void for the quantity so lost.

Both vessels in fact arrived at London, each with the specified number of packages of gambier on board, on the defendants' account; but, these packages proving to be only about one-third of the ordinary size and weight of the packages of gambier known in the trade as "bales," the plaintiffs declined to accept them as a performance of the contract. By arrangement, however, with the defendants, they afterwards accepted them, without prejudice to their rights under the *contract, and brought this action in respect of the difference.

[*699

Besides the packages of gambier before mentioned which arrived consigned to the defendants, there came also in the two ships, the Ravenscraig and Lady Agnes Duff, but consigned to other parties, a number of bales of gambier, of the full and accustomed size and weight, sufficient to have satisfied the contract.

The declaration contained two counts. The first treated the statement in the contract that the bales were then on their passage from Singapore, as a warranty, and alleged as a breach of such warranty that the 1170 bales of gambier were not at the time of making the agreement on their passage from Singapore within the true meaning of the contract: the other count, proceeding on the assumption that the bales of gambier had in fact arrived in the specified quantities by the ships in question, alleged the non-delivery of the same as a breach of the defendants' contract.

Thus, both at the trial, and on the argument before us, it was contended, on the part of the plaintiffs, that, either the contract, by virtue of the alleged warranty, must be treated as an absolute sale, in which case the contract had been broken by the omission to deliver bales of the proper weight according to the trade-meaning of the term; or, if the contract was to be treated as conditional on the arrival of the bales, then that this condition was satisfied by the arrival of the bales which came consigned to other parties by the Ravenscraig and Lady Agnes Duff. For the latter position, the case of Fischel v. Scott, 15 C. B. 69 (E. C. L. R. vol. 80), which was recently before this court, was relied on as an authority.

To establish the breach in the first count, the plaintiffs tendered evidence at the trial, that the term "bales," used in the contract, had a

particular signification in the gambier trade, and that it meant a *700] *compressed package weighing about 2 cwt. The jury found both these facts in the affirmative. This evidence was objected to at the trial, and its inadmissibility was made one of the grounds on which the rule nisi was moved for.

This objection was not, indeed, persisted in on the argument before us; but, as it appears in the rule, it may be as well to observe that we entertain no doubt whatever that the evidence was properly received.

For the defendants, it was contended that the contract was conditional on the arrival of the gambier, and that the case fell within the principle of the cases cited in the argument, in which it has been held, that, in a contract for the sale of goods to arrive," or "expected to arrive" by a particular ship, the obligation is conditional on the double event, first, of the arrival of the ship, and, secondly, of the goods being on board.

Without desiring at all to interfere with the rule laid down in the cases referred to, we may, in passing, observe that we think it has been carried far enough, and that its effect may have been to introduce uncertainty into contracts which were not intended by the parties to be contingent on accidental circumstances, such as, the transfer of a cargo from one ship to another. We are, however, of opinion that the present case is plainly distinguishable from those referred to, by the statement that the goods were on board at the time the contract was entered into. We are of opinion that this statement amounts to a warranty; and although, if circumstances had subsequently occurred whereby the arrival of the goods had been prevented, the defendants might have been protected by the words "expected to arrive," we think they cannot resort to them to get rid of the positive assurance that the goods were then on their passage; on the faith of which, possibly, the purchaser may have entered into the contract to buy.

*Our opinion being thus in favour of the plaintiffs on the first *701] count of the declaration, it becomes of less importance to consider the case with reference to the second: nevertheless, as the authority of Fischel v. Scott was much pressed upon us in the argument, we think it right to say a few words on this part of the case.

It is, in the first place, to be observed that there was not in Fischel v. Scott any positive adjudication of the court. Observations were thrown out during the discussion in that case, by individual members of the court, upon which the counsel for the plaintiff elected to amend. But what is still more material is, that the facts of the present case are plainly distinguishable from those in Fischel v. Scott. In the latter case, the defendants had taken upon themselves to sell the goods, trusting to their coming consigned to them. Jervis, C. J., observes,- The oil which was expected did arrive: the defendants expected it to come consigned to them; but it turned out that it was consigned to some one

else." Here, the bales of gambier, on the arrival of which the plaintiffs in their second count rely, never were expected by the defendants to come consigned to them; nor did they affect to deal with them. On the contrary, the goods which they expected actually arrived consigned to them, only not in such a form and quantity as to satisfy the terms of the contract.

Now, it may well be, that if a man takes upon himself to dispose of goods expected to arrive by a certain ship, as goods over which he has a power of disposal, and the goods afterwards arrive not consigned to him, he shall be precluded from saying that, in addition to the contingency of their arrival, there was implied the further contingency of their coming consigned to him. He has dealt with them as his own, and cannot be allowed to import into the contract a new condition, viz., that the goods on their arrival shall prove to be his. *It is ob[*702 viously a very different thing to say, that, where a man has sold certain specific goods, subject to the contingency of their arrival, the arrival of a different cargo, though of similar goods, consigned to another person, and with which the vendor has never affected to deal, will operate to fix him with consequences against which he has expressly guarded himself. Rule discharged.(a)

(a) See Hale v. Rawson, 3 C. B., N. S.

In the Matter of the Complaint of JOHN PAINTER against THE LONDON, BRIGHTON, and SOUTH COAST RAILWAY COMpany. June 9.

A railway company granted exclusive permission to a limited number of fly-proprietors to ply for hire within their station:-The court refused to grant a writ of injunction against the company, under the Railway and Canal Traffic Act, 1854 (17 & 18 Vict. c. 31), at the instance of a fly-proprietor who was excluded from participation in this advantage,-although it was sworn by the complainant and by several other fly-proprietors who were likewise excluded, that occasional delay and inconvenience resulted to the public from the course pursued.

LUSH moved for a writ of injunction agoinst the London, Brighton, and South Coast Railway Company, under the Railway and Canal Traffic Act, 17 & 18 Vict. c. 31, s. 2, to restrain them from giving an undue preference to certain persons named, and imposing an undue and unreasonable prejudice on the complainant.

The motion was founded upon the affidavit of the complainant, which stated that the directors of the company, or their officers at Brighton, had granted to five fly-proprietors at that place, named, &c., owning together about fifty-six flys, certain privileges and advantages for the entry of the whole of their flys into the terminus at Brighton, for the conveyance of passengers arriving there by all the down-trains, in priN. S., VOL. II.-30