that in that case a fair allowance should be made in respect of the inferior description of rice. Then comes the stipulation that "the seller engages to deliver what is shipped on his account, and in conformity with his invoice." It is contended on the part of the defendant that that is all he engages to do. There may, however, have been a good reason for introducing that clause, inasmuch as a rise in the market might make it profitable to the seller to withhold the cargo, and therefore the buyer may have been desirous of having the option to take it, though of inferior quality. Upon any other construction of the contract, a difficulty would arise upon the clause providing for the time and mode of payment, which is "to be made in cash on arrival of the vessel at port of call, in full, less freight at invoice net weight, &c., on handing the buyers bills of lading and charter-party, with the policies of insurance, endorsed to buyers for full value." It is difficult to suppose that the parties contemplated that the cargo should be paid for without the buyer's having an opportunity to inspect it, and that his only remedy, in the event of the cargo turning *out to be of less than [*339 fair average quality, was to be by an action to recover back his money. For these reasons, I agree with my Lord and my Brother Cresswell in the construction which they have put upon the contract. WILLES, J.-I am entirely of the same opinion. This is a bargain for the purchase by the plaintiff from the defendant of a cargo of Arracan rice, to be shipped by the latter on board a vessel chartered by him, and to consist of "fair average Nicranzi rice," at a given price per cwt. There is a stipulation for an allowance to be made for Larong or any other inferior description of rice: but, as the ship did not bring any Larong or other inferior description of rice, there is no necessity to refer to that stipulation or to those relating to the delivery or payment, except in so far as they may affect the construction of the previous part of the contract describing the rice to be delivered. Those provisions are evidently introduced for the benefit of the buyer, who may insist upon having the cargo delivered to him, though its inferiority of quality might entitle him to some allowance. Thus the parties are thrown back upon the first part of the contract, viz. that the cargo is to consist of fair average Nicranzi rice. Then there is a stipulation that the contract is to be void if the ship is sent from Akyab to Calcutta, or if she should be lost. One would naturally infer from those stipulations, that the contract was to remain in force if neither of these events should happen. The cargo to be obtained by the buyer is to consist of rice of a given quality. The circumstance of the price being fixed at the time it was, would lead one to expect that the parties were dealing with a thing the value of which could be ascertained by reference to its quality. That is given: it is to be "fair average Nicranzi rice." The buyer is not to pay 11s. 6d. per cwt. for rice of any quaN. S., VOL. II.-16

*340]

ranty.

lity he therefore stipulates *for rice of a certain description, and of fair average quality. That clearly amounts to a warRule discharged.

Where goods are sold by sample, the handing over the samples to the buyer does not, in the absence of evidence of an usage or custom to the contrary, amount to a delivery and acceptance of a part of the thing sold, so as to take the case out of the 17th section of the Statute of Frauds: but it is otherwise where the buyer draws samples from the bulk after he has purchased the goods.

THIS was an action for the breach of a contract to deliver 24 tons of sacks and bags, which the defendant had agreed to sell to the plaintiff at the price of 117. per ton.

At the trial before Williams, J., at the first sitting in London in the present term, a contract by word of mouth was proved in the terms alleged in the declaration; but there was no contract in writing, nor any part payment. The plaintiff, however, relied, for the purpose of taking the case out of the Statute of Frauds, upon a part delivery and acceptance, as to which the evidence was as follows:-Four days after the sale, the plaintiff went to the defendant's warehouse, and asked for samples of the sacks and bags, which were given to him by the defendant's foreman, and which he promised to pay for when the bulk (which was all there at the time) was taken away. The samples so given to the plaintiff were by the defendant's order weighed and entered.

On the part of the defendant, it was submitted that the taking the samples was not such a part acceptance of the thing sold as would satisfy the 17th section of the statute.

For the plaintiff, the case of Hinde v. Whitehouse, 7 East, 558, was relied upon. There, sugars, which were in the King's warehouse, under the locks of the King and the owner, from whence they could not be removed *till the duties were paid, were advertised for sale by *3411 auction on the 20th of September, when samples of lb. weight from each hogshead, drawn after the sugars had been weighed and the duties ascertained at the King's beam, were produced to the bidders assembled; and the auctioneer,-having then before him the printed catalogue of sale, containing the lots, marks, and number of hogsheads, and the gross weight of the sugars, and also another written paper containing the conditions of sale, which latter he read to the bidders as the conditions on which the sugars mentioned in the catalogue were to be sold, but the two papers were not externally annexed, nor did they contain any internal reference to each other,-wrote down on the catalogue the name of the highest bidder, and the sum bid for the particular lots; having first informed the bidders that the duties had not then

been paid, but would be paid on the morrow by the seller: and, after the biddings closed, the samples were delivered to and accepted by the purchaser, according to the usual practice at such sales, as part of his purchase, to make up the quantity marked as weighed at the King's beam and a fire having consumed the sugars on the 22d of September, before the duties could be paid, and without the default of the seller,— it was held, first, that, at common law, there was a sale to change the property at the time and place of auction, though the goods could not be delivered till the duties were paid, which was known at the time; such being the manifest intent of the contracting parties; and, consequently, that the loss must fall upon the buyer,-secondly, that, assuming a sale of goods by auction to be within the 17th section of the Statute of Frauds, 29 Car. 2, c. 3,(a) and therefore requiring to be *evidenced by a memorandum in writing of the bargain, signed [*342 by the party to be charged, or his authorized agent, except where the buyer shall receive part of the goods sold: yet here the delivery to and acceptance of the samples by the buyer, which delivery was made as part of the thing purchased, and upon which the duties were paid, at any rate took the case out of the statute.

The learned judge left it to the jury to say whether the samples of the sacks and bags were delivered and accepted as part of the bulk. The jury found that they were, and accordingly a verdict was taken for the plaintiff (damages 401.), leave being reserved to the defendant to move to enter the verdict the other way, or a nonsuit, if the court should be of opinion that there was no acceptance of part, to take the case out of the statute.

Hawkins now moved accordingly.-The acceptance of the samples clearly was not an acceptance of part of the things sold, so as to take the case out of the 17th section of the Statute of Frauds. In Hinde v. Whitehouse, the samples were, according to the practice of the particular sales, to be taken by the buyer as part of the bulk: there was, however, no such evidence here. [CRESSWELL, J.-The whole of the bulk was there?] Yes. [CRESSWELL, J.-Suppose the parties here were reversed, could the buyer have insisted that he had not accepted a part of that which he had purchased?] It is submitted that he might. [COCKBURN, C. J.-Generally speaking, the sample is shown separately, as a specimen of that which the seller is offering to dispose of. But here, the buyer takes it as a part of something which he has already bought.] This question arose in a case of Simonds v. Fisher, at the sittings in the Queen's Bench after last term. There, the plaintiff showed the defendant samples of wine, which the latter agreed to buy ; and, after the bargain was concluded, the buyer asked to have the

(a) See Emmerson v. Heelis, 2 Taunt. 38, White v. Proctor, 4 Taunt. 209, and Bird v. Boulter, 4 B. & Ad. 443 (E. C. L. R. vol. 24).

samples handed over *to him, and wrote on the labels the prices *343] agreed upon. An action having been brought against him for not accepting the wine, the taking the samples was relied on by the plaintiff as a part acceptance, so as to take the case out of the statute. But Wightman, J., before whom the cause was tried, directed a nonsuit, reserving the plaintiff leave to move. A motion was accordingly made on the 27th ult., and a rule nisi granted, which is now pending.(a)

COCKBURN, C. J.-That is a very different case from the present. There, the buyer never saw the bulk: the things handed to him really were mere samples. But here the plaintiff receives part of the very things which he has already bought. I think there should be no rule. The rest of the court concurring, Rule refused.

(a) The rule never came on for argument, it having been discharged under the authority of a judge's order on the 29th of July, 1857.

*344]

*THE GREAT NORTHERN RAILWAY COMPANY v. WYLES and Another. April 25.

The defendants hired sacks from the plaintiffs for the conveyance of grain on their railway, subject to certain regulations, amongst which were the following:-"2. The charges for the use of sacks will be d. per sack per journey when discharged at any of the company's stations on the company's line, or at their warehouses, or at warehouses or mills connected by rail with the company's line; and 1d. per sack when sent to foreign stations: 3. Demurrage of d. per sack per week will be charged after the expiration of fourteen days; the hire to commence from the time the sacks leave the station to be filled; the time allowed for filling and returning to the station to be seven days: 10. None of the company's sacks containing grain will be allowed to leave any station (local or foreign), unless a guarantee is first obtained by the clerk in charge, from the consignee, that the grain will be immediately discharged, and the sacks returned the same day, and to the same station :"-Held, that the company's claim for demurrage arose at the expiration of fourteen days from the hire of the sacks; and that the only person with whom there was any contract for demurrage was the consignor, by virtue of the 3d regulation; but that, by the operation of the 10th regulation, his liability ceased upon the company's permitting the sacks to get into the hands of the consignee, whether with or without a guarantee.

THIS was an action brought by the Great Northern Railway Company for money payable by the defendants to the plaintiffs for the demurrage of sacks of the plaintiffs kept on demurrage by the defendants, and for the hire of sacks by the plaintiffs let to hire by the defendants, and for money found to be due from the defendants to the plaintiffs on accounts stated between them: and the plaintiffs claimed 50%.

As to 17. 158. 6d., parcel of the plaintiffs' claim, the defendants brought that sum into court, and said that it was enough to satisfy the claim of the plaintiffs in respect of the matter therein pleaded to,secondly, they pleaded never indebted as to the residue of the declaration,-thirdly, to the same residue, payment before action.

The plaintiffs took out the 17. 158. 6d., and joined issue as to the

rest.

The cause was tried before Cresswell, J., at the sittings at Westminster after last Michaelmas Term. It appeared that the plaintiffs sought to recover 207. 118. 5d. for demurrage of sacks let by them to the defendants. The particulars of demand especially endorsed on the writ were as follows:

*1854. To sack demurrage, as per account deli- £ s. d.

*345] vered

"1855. To do.

"1854. To sack demurrage, as per account rendered

The defendants are corn-merchants carrying on business at Grantham and at Nottingham. They are in the habit of buying and selling corn and grain of and to farmers and merchants in numerous districts, on the Great Northern, Midland, Ambergate, North Stafford, and other railways, a great portion of which is consigned by and to the defendants in sacks belonging to the Great Northern Railway Company, to which the regulations hereinafter mentioned apply. Where corn or grain so consigned travels on the plaintiffs' and other lines of railway, one line only receives the rates or tolls for the entire journey, and the division of the tolls between themselves is arranged (quite apart from consignors or consignees) at the railway clearing house. The hire of the sacks, however, is always charged by the company from whom they are taken up, though the freight of the consignment may be charged by another. The sacks are furnished, not by the company, but by a person named Lee, with whom they contract for this purpose. The general sack-depôt of the plaintiffs or their contractor being at Boston, the course prescribed by the regulations is this:-From that depôt, each station requiring sacks shall obtain them; and to that depôt they shall be returned, not from the consigning or forwarding station, *but [*346 from the receiving station. The merchant or farmer requiring sacks wherein to forward his corn, is to apply for them at the forwarding station; and the forwarding station is to apply to the depôt. The forwarding station having received them, hands them over to the merchant, who fills them and returns them to the same station, with a forwarding note directing where they are to go. The forwarding station then advises the depôt of the particulars of the sacks, consignors, consignees, places of consignment, &c. The regulations above referred to were as follows:

"Great Northern Railway Company.

"General Sack Regulations. Mr. Lee, contractor.