The Sale of Goods Act 1979 (“the Act”) uses two terms, “property” and “title”, which one would normally associate with ownership. Of “title”, there is no definition in the Act; of “property”, there is one. But the definition, as we shall see, does not carry us very far. There has been much debate on the meaning of the two terms. The approach advocated by Battersby and Preston in a deservedly well-known article appears to have gained considerable acceptance.5 This paper hopes to present, as a theoretical possibility, an alternative interpretation of the uses and meanings of those concepts and of their relationship. It would be useful to begin with a brief description of “ownership” since “property” and “title” are associated with it.

I Propose to begin with a word or two about the growth of Appeals and then to say something about the present appellate jurisdictions in this country. I suppose, speaking generally, the man who has a decision given against him has a disposition to be discontented with it, and tries to get another decision if he is satisfied that he is in the right. But I should imagine also that in early days the private litigant had a very small say in the matter whether he should, or should not, have the right of appeal. Before the Judiciary and the Executive were distinguishable, when the act of deciding disputes was an act of government, ordinarily performed by the Chieftain or Ruler though perhaps sometimes delegated to a subordinate, in those days, of course, the judge, being also ruler, there were no appeals, and one can only hope that decisions were satisfactory to everyone concerned. Whether the same persons made good rulers and good judges in the days of the Hebrew Judges I do not know; but I do know that I should be very sorry indeed if the two functions, which are of entirely different kinds, were united nowadays. As soon as a ruler began to delegate his function to a subordinate there can be no question that he would from time to time desire to revise the decisions that were arrived at, partly from self-interest, and partly, one may assume, from a sense of justice, knowing that, or thinking that, the decision was wrong and that he could give a better one. And in that kind of way there would gradually emerge a more or less settled system by which decisions would become the subject of review.

I

The facts of the recent House of Lords decision, White and Carter (Councils), Ltd. v. McGregor, were so simple and have been canvassed so thoroughly as to be now practically a matter of common knowledge. The appellants' business consisted in the placing of advertisements, for a fee, on litter bins which were then distributed to various local authorities. They agreed to run the respondents' advertisement for a period of three years. The respondents repudiated on the ground that their sales manager who had concluded the contract had no authority to do so. The appellants refused to accept the repudiation and duly displayed the advertisements for the entire period, bringing at the proper time a suit for the full amount owing under the contract. The pertinent question was: were the appellants entitled to dismiss the repudiation and give effect to the contract on their side in order to secure performance on the other side; or rather were they obliged to adopt the repudiation as the end of the contract and the beginning of a suit for damages subject to mitigation? The latter view prevailed in all but the House of Lords where a majority of three to two preferred the former.

In coming to this conclusion the House of Lords in effect overruled an earlier decision, viz., Langford and Co., Ltd. v. Dutch, the facts of which were virtually on all fours with those of the present case. In Langford's case the appellant was unsuccessful in recovering the contract price for exhibiting an advertisement film which he persisted in showing despite the respondent's repudiation of the contract.

The question whether a statutory corporation should be held liable for torts committed in the course of an ultra vires undertaking is one of particular interest to the student of law for two reasons. First, the principle of ultra vires emphasises most clearly what Dr. C. T. Carr-calls “the incidents of corporateness.” “Perhaps, indeed,” as Mr. Brice has written, “the Law of Corporations may be considered for most practical purposes as in reality only the application and development of the doctrine of ultra vires.” Secondly, owing to the fact that there are only a limited number of cases dealing with this question, and that even these are but of doubtful authority, a writer is free to suggest his own solution. This lack of precedent does not, however, mean that the problem is devoid of practical importance, for, with the rapid increase in the number of business companies, it is probablethat the courts will have to deal with it in the near future. THE CAMBRIDGE LAW JOURNAL was, therefore, fortunate when it was able to publish Professor Edward H.Warren's article “Torts by Corporations in Ultra Vires Undertakings,” in the 1925 number. This article is of such interest that the writer of the present paper may be excused for discussing at considerable length some of the points raised by it. Professor Warren quotes Sir John Salmond, and, as the latter's view that a statutory corporation ought to be held liable for torts committed in the course of an ultra vires undertaking is familiar to most English students, it will be convenient to consider Salmond's position first.