with my orders. They were greatly in excess. One of the registry books he sent (item No. 2) would last for 50 years according to the population of Sheffield. None at all of the articles mentioned in item No. 8 were required. One of those mentioned in item No. 9 would answer. None of those in item No. 11 were required. Everyone in Sheffield had liberty to erect monuments. One of those in item No. 12 would be enough. 50 of those in item No. 17 would answer. None of the requirement dockets in item No. 18 would be required. 20 perpetuity sheets item No. 19 would do for a year. 50 report sheets item No. 20 would 20 perpetuity returns item No. 21 would answer. answer. I I Cross examined. I first knew Mr. Phelan in Sheffield. We were to have opened the cemetery on the 29th September. I was not intimately acquainted with the working of Glasnevin cemetry. I approved at Phibsboro' of the shects they shewed me. knew that Phelan before that had altered the sheets of the books, &c., used in Glasnevin, to correspond for Sheffield. Phelan was my correspondent in Ireland. He was agent to order but not to receive. may have said to Phelan, to see that the goods were all right. I never told Phelan to forward them to me, but to see that they were forwarded. I did not wish to order more forms than for one year. I have ordered, in Sheffield, one copy of a register book for 15s. bound. I said nothing about the quantity to plaintiff at Phibsboro'. If the goods were according to order, I should have paid the carriage from Dublin to Sheffield. To the judge. I have no remembrance of having told Mr. Phelan to send those goods to me by Mr. Walker. I had engaged Mr. Walker, here (before I left Ireland), for some business connected with the Sheffield cemetery, and he was to go over to Sheffield. He did go, and I gave him the letter and invoice, on 20th September. did actually order. He further left to the jury, on the evidence, the question as to the value and prices to be charged for such portion of the goods as the jury should be of opinion had been duly ordered by defendant, or by his authority. And he directed their attention to the prices charged in the invoice, and to the evidence of plaintiff, as to same, and as to the prices, which should be fairly and reasonably charged for those several articles, of which it was alleged, that the quantities mentioned in the invoice exceeded those that were ordered. The jury found a verdict for the plaintiff, for £18 4s. 6d., and gave a list they had made out, shewing of what that sum consisted, and specifying the articles for which they considered plaintiff entitled to recover, and the prices they allowed him for same. The list was as follows, viz: 18 4 6 against defendant, by the jury. The evidence on both sides being closed, defendant's counsel, required the judge to direct the jury, to find Several portions of the articles mentioned in the ina verdict for defendant, upon the grounds, already re-voice were omitted from this list, and were not charged lied on by Morris, Q. C. at the close of plaintiff's case, and to tell the jury, that there was no evidence of acceptance of the goods by defendant, to satisfy the Statute of Frauds, and also to tell them, that if the goods sent considerably exceeded in quantity what were ordered, the defendant was not bound to set aside and take the portion ordered. The learned judge declined to comply with this requirement. but told the jury, that under the statute of frauds, plaintiff was not entitled to recover at all, except there was an acceptance of the goods by defendant. And he left to them, the questions on the evidence, whether Phelan was the agent for defendant, for the purpose of receiving the goods, and if so then, whether there was an acceptance by him, for defendant of the goods, or of such portion of them as he, Phelan, was authorised to order and did order. He also left to the jury, the question of the extent of the authority, given by defendant to Phelan, as to the quantities of goods to be ordered; and told them that plaintiff was not entitled, in any event, to recover for any greater quantity of goods than Phelan was authorised by defendant, to order, and than that he After the verdict was given, defendant's counsel applied to the judge to respite execution for a month, which he accordingly did, the defendant undertaking and consenting by his counsel, to return to plaintiff such of the several articles mentioned in the invoice, as did not appear by that list to have been charged against defendant by the jury (excepting the trifling articles mentioned in the first item of the invoice). Plaintiff to be at the expense of the carriage, from Sheffield, of such returned goods. The list made by the jury shewed that with respect to the articles mentioned in the 4th, 5th, 6th, 7th, 13th, 14th, 16th and 17th items of the invoice, the jury charged the defendant with the same quantities and prices as in the invoice, but that with respect to the several articles mentioned in the 2nd, 3rd, 8th, 9th, 10th, 11th, 15th, 18th, 19th, 20th and 21st items of the invoice; the quantities thereof mentioned in that list, and the sums charged by the jury against defendant, for the same were less than those mentioned in the invoice, while the rate of charge allowed by the jury for each article was greater. And further, that 1862 Dr. 1 11 Sept. Quire pot paper, 3d; 2 black lead pencils, 3d. £ s. d. On the 24th November, Morris, Q.C. for the defendant, obtained a conditional order to set aside the verdict, and for a new trial, on the grounds of the reception of illegal evidence and misdirection of the learned judge, against which April 24th, 1864, Armstrong, Sergeant, and Anderson, showed cause. Morris, Q.C., and M'Blain, contra. The following authorities were cited, Levy v. Green (8 El. and Bl. 575); Levy v. Green in error (1 El. 0 0 6 and El. 969); Cunliffe v. Harrison (6 Exchequer, 903); Hart v. Mills (15 M. & W., 85); Cross v. Eglon (2 B. & Ald. 106); Norman v. Phillips (14 37s. 6d... 3 15 0 M. & W. 283); Coke Littleton, 258 b. 2 Registers, whole bound, 5 2 Workmen's account books, 27s. 6d... ... 2 15 0 1 Cash book, 5 quires, 8 by ... ... 1 Perpetuity cash book, 5 1 Renewal book, 5 quires ... 0 18 0 100 1 10 0 Cur. adv. vult. May, 7th.- MONAHAN, CJ.-This case comes before us on a motion to set aside the verdict on the alleged ground of misdirection. The action was in the common form, for goods sold and delivered. The case was tried in the Consolidated Nisi Prius Court; and it appears, the plaintiff was a stationer, in Dublin, and the defendant is a Roman Catholic clergyman or curate, in Sheffield. Mr. Phelan of Dublin, was the principal witness for the plaintiff, besides the plaintiff himself. It appears the defendant came over to Ireland, and approved of forms, which were used, and employed Mr. Shannon to prepare suitable ones for the Sheffield cemetery. Whether the interview took place in Dublin or in Sheffield is of no importance, but the evidence of Phelan is of some imporO'tance. He says that he ordered, from the plaintiff, one copy of each of the large books, and as few as possible of the small forms; that the plaintiff sent up these books. On cross-examination, he says, "I gave no order, but for one of each of the large, and "as at 4s. 6d... 0 9 0 few as possible" of the smaller. I had no authority 2 Removal docket books, to order more. The articles in the invoice are necesOsary in a cemetery. I read the invoice. I thought there were too many of some of them, but I did not be erected at 3s... 0 15 0 tell the plaintiff so." Shannon gave evidence; the 200 Weekly returns of inter 8 9 10 11 12 13 14 15 16 17 only material thing is that he will not swear Phelan orOdered any stationery. Phelan was re-examined, and said the defendant told him to get the goods from the plaintiff. The defendant was examined, and gave an account a little different, but that is immaterial, because the jury have found what the contract was. The defendant asked for a verdict to be directed-1st. because there was no acceptance within the statute of frauds; 2ndly because, admittedly, the plaintiff had sent more goods than ordered, and the deO fendant had done nothing to disentitle him to re 0 0 11 O fuse. The judge declined to comply, but told the 0 8 6 09 ... 0 13 0 10 0 0 14 0 best blotting, at 40s. C. L. No. 4 at 6d. and No. 6. at 8d 6 Boxes Berry's pens, 63. 6 Gillott's, 7s. 6d. 1 Dozen black lead pencils 1s. 1 lb. black wax, 4s. 2 Packing cases ... ... jury the plaintiff could not recover, except there was an acceptance, and left to them to say, if Phelan was the agent to accept; and if there was an acceptance; also the extent of the authority; and told them the plaintiff was not entitled to recover more than Phelan was authorised, by the plaintiff, to order, and did order. The latter part of the judge's direction was this: the plaintiff said he made the prices on the supposition that all would be accepted; but if less were accepted, a higher price would be reasonable as every ono 2 6 knows it is not twice as expensive to strike off twice as much. The invoice contained items, 21 in number, 33 7 2 eight or nine under one head. The verdict finds, that some of the things were not at all ordered; the 1st. ment of two of the judges, Lord Campbell and Wightitem is a very trifling one; No. 12 is struck out. man, J., thought the defendant was at liberty to reThe jury next went through the other items, and ject the goods, and that his having set up a different in the last sentence we have the result. They struck reason was no waiver of his real objection, which he out one of the registers; they struck out sixteen of the had the right to make. Now, though three instead dockets mentioned in the eighth item; in the ninth item, of six were sent in one instance, that is, less than six; in the tenth, four; in the eleventh item, four; one were ordered, Lord Campbell and Wightman, J., of the removal docket books, in the fifteenth item; thought anything of that kind sufficient. Lord four hundred, in the eighteenth; six hundred, in the Campbell says, "I think he had the right to reject the nineteenth; one hundred in the twentieth; one hun- goods, but he might waive the objection, and at one dred, in the twenty-first; and all subsequent to the time I thought he had done so. I do not lay down twenty first. The result is, that of the items, twenty. any general rule of law, but I say, that under the cirsix or twenty-seven, they found eight right in quan- cumstances, here, the caution being given, and the tity; of the others some visibly more; others depend- whole being included in one invoice, all the goods ing on the question, whether ordered. And, I may being in one package, under these circumstances he say, the jury completely altered the prices, except had a right. I therefore think the rule should be those of the items, which were quite right, consider- made absolute." I need not refer to the judgment of ably altering the price of the single book, on the Wightman, J. who concurs; but I refer to the judgground that it was more expensive than half the two. ment of Erle, J. As I read it, he differed because he The verdict was right provided the direction was supposed the things virtually sent were a few extra right; and we must take it, that £18 4s. 6d. was the articles, with the understanding, they were not sent right sum; that some of the goods were not ordered, as sold, but with an option to the defendant, to keep that some exceeded the order; that depending on the them or not. It shows what Englishmen are. Here construction of the order, but others palpably ex- are only £5 in dispute, but for the benefit of posterity, cceded, and the question is, should a verdict have and for our benefit, it was thought not right, to leave been directed for the plaintiff, for £18 4s. 6d. Cases the thing in doubt, with two such eminent judges conof this kind have undergone a good deal of discus- flicting; and the case came before the Court of sion, and I might go through many of them, but our Exchequer Chamber, where there was not a difference. opinion is, that in a Court, where we are as at present, (1 El. & El. 969). The reporter does not think it our duty is to ascertain how the law has been ascer- necessary, there to give the arguments of counsel, tained by Courts of co ordinate jurisdiction; and that because they were the same; but the judgment of we are to follow decided cases if they establish a Martin, B. says "We are all of opinion, that the principle, and that they are not to be departed from, decision of Lord Campbell and Wightman, J. was on any minute differences. Applying that (and the correct." [His lordship cited the observations of effect otherwise would be this, that so much uncertainty Willes, J.] Bramwell, B., Watson, B., and Byles, J. would ensue, no counsel could advise whether or not, subsequently are to the same effect. Applying this to submit to a demand,) Levy v. Green (8 El. & Bl. to the facts of this case, and the only pretence that a 575) I need not say, is a binding authority. It was different result should be come to rests on what Erle, a peculiar case, and if the law was right, a multo J. said, that the goods were sent, perhaps on sale and fortiori, it applies. It appears that the defendant return; is it possible they could be so here? They gave an order for a small quantity of delph. On the were stamped as for the Sheffield Cemetery, therefore first page, the items are set forth. They amount alto- they never went with an offer to take, or return the gether, to about eight or nine, or ten items; five items remainder; with respect to these books there is no were perfectly right, with the exception, that the fifth pretence the plaintiff could have been mistaken. is three sets of dishes; but with respect to the others to the forms there might be some mistake, because they are identically as ordered. But then come the order was to send "as few as possible." But so jugs, about £1 6s. worth of jugs, which were con- far from that circumstance making the case favour. fessedly beyond the order, like the stationery in the able to the plaintiff, now that the contract has been present case. The whole demand being for £6 or £7; construed by the jury, the very circumstance that it was tried before the sheriff. The defence set up be- there was a difficulty in selecting by the defendant, fore the action brought, was that the goods were or- was one thrown on him by the plaintiff; and he would dered to be sent within a fortnight, and were not sent have run the risk of being taken, to have accepted the till a month had elapsed, and it was not till the trial whole. If this case be taken to have settled the law, came on that it was objected; the goods did not cor- I cannot see how the present case can be distinguished respond with the order. The plaintiff abandoned the from it. The goods were not ordered at all. Neither £1 6s. worth, and said he was entitled to a verdict was the stationery, nor the item No. 12. I think it for the £5 or £6 worth. And he gave some evidence would be inconvenient to try to distinguish such cases. of the trade, that it was usual to put in extra goods We have no alternative, but to set aside the verdict. if there was room-sent on sale and return. "I send CHRISTIAN, J.-Two objections were taken to the you what you may keep if you like, and if you don't course pursued by the judge. 1st. That he should you may return." A verdict was found for the tell the jury that there was no acceptance under the plaintiff, deducting for the extra goods. The case Statute of Frauds. I have no doubt the judge was came before the Queen's Bench, and the question was, right. Singularly enough both the counsel here erred if that was right. I need not refer to the arguments in laying down the law as to acceptance. Mr. M'Blain of counsel, but it is necessary I should state the judg-cited a case, and Mr. Anderson cited a dictum; but As both were considered in Morton v. Tibbitt (15 Q. B. Queen's Bench were equally divided in opinion. Cole428), which is now the leading case. In short as ridge, J. and Erle, J., were of opinion in favour of the Lord Campbell pointed out what is necessary is merely plaintiff. When it went to the Court of Exchequer a part performance on one side or other; on one by a Chamber, that Court held they were wrong. One payment no matter how minute, and ou the other by may venture to say which of the judgments is the a delivery no matter how minute. The meaning is most satisfactory to one's own mind, and Lord Campas shown by Lord Campbell, that once anything is bell's is more satisfactory to my mind. What are the delivered as purporting to be the thing sold, the question grounds which Lord Campbell bases his judgment on? is in the same position as if there was a writing. I think in the Exchequer Chamber, the judges did Tomkinson v. Staight (17 C. B, 697) is to the same little more than adopt his construction. At the outset effect. Here the jury have found Phelan was the the foundation is that particular quantities and kinds agent. The defendant's first point therefore fails. were ordered to be sent, with acaution not to send more, The second objection raises a question of great peculi- Without referring further to the judgments, it is plain arity, and in my mind great difficulty. The learned that the basis laid down, and in the other case by judge before whom the case was tried took great pains Baron Parke, is that where the order is specific in with it. I can not but think it a great hardship if quantity and kind, if the seller send more or less he the plaintiff has nothing for the trouble and expense obtrudes on the purchaser a contract different from he has gone to. The order was entirely uncertain as the one entered into, and the purchaser has a right to to quantity i.e. with respect to the larger portion. reject the whole. That fact is confessedly wanting in There was no suggestion on any ground, but that this case. I am speaking of one portion, and will the plaintiff acted bona fide under this uncertainty. speak of the other by and by. The order was uncertain We now know ex post facto on the evidence of the in its terms. In my opinion there are two cardinal defendant's agent, but not on anything which the distinctions between this and the cases cited. The plaintiff might have known what was the quantity. first (relied on in the argument), is that the order was That quantity was considerably less, and some trifling not specific. The second (not relied on in the arguarticles were sent which were not ordered. The risk ment) is that the order appertained to a certain measure or inconvenience to be run by the Rev. defendant, or standard which was in the possession of the defenwas comparatively infinitesimal; the verdict is there- dant, but not in the knowledge of the plaintiff. So fore a just one, but if the law be against it, it must far from trying to force a contract different from the fail. The defendant says the case is the same as if one entered into, he was acting quite in the spirit of that precise quantity had been specifically ordered. I that contract. The defendant was a Roman Catholic agree with the Chief Justice that a Court should follow clergyman, the member of a committee of a cemetery a Court of co-ordinate jurisdiction, even if it should about to be opened in Sheffield. Certain books were wish the law were otherwise; but when the Court is in use in Glasnevin, they had been furnished by Shancalled on to submit to an authority, and in doing so non. Phelan had been over in Sheffield. The to refuse remuneration, it ought first to ascertain what defendant authorized Phelan to give an order. is the rule of law? secondly, does the case fall within was afterwards in Dublin, and approved of what he the letter or spirit of the rule? and in judging of the lat- saw. What was it according to Phelan? One copy ter, if the case is substantially the same, it ought to be of the large, and as few of the others as possible. followed. Now it is to be remarked that the case of Levy What is the meaning of that order? What was put on v. Green professed not to lay down any general rule. "I it at the trial, and objected to by the defendant's counsel do not "" says Lord Campbell," lay down any general but in my opinion as few as possible" meant as few rule." Willes, J. says adopting the view taken by as was cousistent with the defendant's object of estabLord Campbell, I think," &c., and Byles J. says "Ilishing a cemetery. How was that to be ascertained? do not say in all cases," &c., therefore Levy v. Green How and by whom was it to be cleared up? The lays down no general rule. If not then on what prin- size of Sheffield, the mortality, the whole mortuary ciple do they proceed? This. A vendor shall not be statistics, all were within the knowledge of the defenallowed to force on a vendee a contract different from dant. Be his reason what it may, the order was comwhat was entered into. It is a cardinal fact, that in municated in these general terms. What was the all these the order was specific in quantity as well as plaintiff to do? He knew nothing of Sheffield or its kind. Non hæc in foedera veni, may the defendant burial requirements. It may be said he should have say if the vendor send more than the quantity ordered. inquired, but the contract did not put it on him. What In Cunliffe v. Harrison Baron Parke says, the defen- was he to do? Just what he did. The nature of the dant “had a right to have ten specific hogsheads order justified him in doing the very thing which the delivered to him, the delivery of fifteen is no perfor- law forbids him to do where the order is specific. mance; the person can't tell which are the ten." The contract here is of the very nature referred to by But the leading case now is Levy v. Green. That Coleridge J. and therefore justified the seller in sendcase was this, the defendant gave the plaintiff an ordering the plaintiff a stock from which to select. How specific both as to quantity and kind. The plaintiff sent less than the quantity of the same kind, and other .goods not corresponding with the order at all. The first was ample ground on which to found the decision of the Court in Levy v. Green; and when it went to the Court of Exchequer Chamber judge after judge referred to it. It is remarkable that the Court of 66 He were the quantities ultimately ascertained by the jury? By enforced testimony under subpœna of the defendant's own agent. This contract differs from all cited just in the particulars relied on. Professing as I do to adhere to Levy v. Green, and these cases, I think they do not rule the present. It was strongly argued that the defendant would not know what amount of was decided on what? Lord Campbell holds the defendant is not bound to take the trouble of writing to the vendor. What does Wightman, J. say, "There was an invoice making the defendant debtor and it is said the purchaser might open the package, it would throw upon him the trouble of being thereby made liable," &c. It is said two other judges held differ money to plead payment into Court of, but that is entitled to no weight. The defendant is in the position of any defendant, where the plaintiff claims unliquidated damages. The defect was from what lay in the defen dant's own knowledge. I think the judge was right; the plaintiff did not know but that all the articles would be received, and he therefore was right in pricing them as he did, though the jury may have over elab-ently. Yes they did; but their judgment was overorated, and it might have been better to keep to the invoice prices. But it is said in one instance the order was precise. If it had been the evidence that two registers and two workmen's account books came within what was called "large" there would have been excess; but for all that appears they may have been amongst those most in use. The evidence did not in my opinion supply the defendant with what would ground an argument. Though the order was uncertain as to quantities, it was perfectly definite as to kind. The plaintiff unluckily put in £5 worth of stationery; shall he lose all for his mistake? No case has yet decided that where other articles-articles alterius generis are sent, the purchaser is at liberty to reject the whole. In that case in the Court of Queen's Bench, Coleridge, J. says what I concur in "the mere addition of distinguishable articles," &c., and Byles, J. says, "I do not say the vendor would have a right," &c. I concur in the observation of Coleridge, J. that the addition of things of a totally different kind does not invalidate the sale. I do not feel myself coerced to set aside a verdict right in all other respects, because the plaintiff put these few articles into the parcel. No extra difficulty was thrown on the defendant by it. Justice requires that the defendant should pay for what he had ordered. KEOGH, J.-I confess if I were satisfied this was a case where injustice would be done, I should feel reluctant though I should follow the Court of Exchequer Chamber. But as to the injustice, I do not think it conducive to the fair transaction of mercantile business, that if an order large or small be given, but particularly small, that the vendor should take on himself to send a much larger quantity of goods than ordered. 2ndly. it would pass, I think all bounds if a man in London ruled. I ask if two judges dissent and the Court of Exchequer Chamber overrule that, what is to follow of books of reports at all, if we are to turn round because these other two went in an opposite direction? The Court of Exchequer Chamber say, "We are all of opinion," &c. We are now in the year 1864. That was in 1859. They had what we have before us-"we are all of opinion that the decision of Lord Campbell and Wightman, J. was correct." What does Willes, J. say "adopting the view taken by Lord Campbell," &., (exactly as in the case before us). What does Bramwell, B. say. [His Lordship cited some of the observations of Bramwell, B.] In that case the plaintiff sought to contend that the goods were thrown in as durrage. Can that be said here, with prices put to them all? [His Lordship proceeded to quote from the observations of Watson, B., and Byles, J.] I can see no distinction in fact; I acknowledge none in point of law in these cases. I think the grossest injustice would be perpetrated if parties might send what was not ordered with what was, and charge the purchaser for both in the same invoice. BALL, J.-I have no intention of entering on the justice or hardship of the case. I concur with the majority of the Court. CHRISTIAN, J.-So far from dissenting from the judgment in Levy v. Green I entirely approve of it; and of the judgments given there I stated I approved most of the judgment of Lord Campbell. Rule absolute, or Berringham should order a specific class of goods, LOCKHART v. IRISH N. W. RAILWAY COMPANY-May that the vendor should take on himself to throw in another and different class of goods under the same 28, June 4, 1863. c. 70-Pleading― Jurisdiction-Common Law Procedure Act, 1853, s. 67. invoice, charging the vendee in the one invoice; in Demurrer-Accommodation Works-14 & 15 Vic., other words sending him a specific demand for money for goods he never thought of and never demanded. Nothing would be more conducive to fraud than that. That is exactly what took place in this case. A gentleman through his agent desired to be furnished with one of each of the large books, and as few as possible of the small forms. What takes place? The plaintiff sends what the defendant swears and the jury finds to be immoderately great, what would satisfy the burials of Sheffield for fifty years. This reduced the demand to something of about one third, and unless the jury went on a principle which I do not understand (that the price should be higher) they would have reduced it to about £11. That is the case before us. Without going into other authorities when we find an authority pronounced by the Court of Exchequer Chamber, I am not sorry that I cannot draw distinctions between that and this. I rather rejoice at it. Levy v Green To an action against a railway company for negligence in not making and maintaining sufficient fences for separating certain lands taken for the railway from the adjoining lands, whereby a horse belonging to the plaintiff strayed upon the said railway, and was killed, and also for negligence in not making a sufficient culvert, the defendants pleaded that the works in question were accommodation works, and that while the plaintiff was occupier of the land taken by the defendants, an arbitrator duly appointed in pursuance of the Railway Act, Ireland, 1851, duly made his award directing the works which should be made and maintained, which award was not traversed in respect of the said works, and which award did not direct the |