WILLIAMS, J., now delivered the judgment of Erle, C. J., Keating, J., and himself:

In this case we think our judgment ought to be for the defendants. When the case of The Mersey Docks Trustees v. *Jones, 8 C.

B., N. S. 114 (E. C. L. R. vol. 98), was before us, we thought [*841

ourselves bound by the authority of the decision of The King v. The Inhabitants of Liverpool, 7 B. & C. 61 (E. C. L. R. vol. 14), 9 D. & R. 780 (E. C. L. R. vol. 22). The present case involves the same point: and, if no other question had been raised, we should have deferred giving our judgment until the Court of Exchequer Chamber, into which, we are informed, the case of The Mersey Docks Trustees v. Jones has been removed by writ of error, should have affirmed or reversed our decision. (a) But a second point has been raised on the part of the defendants, viz. that, even if the plaintiffs are not liable to be rated, by reason of their occupation not being beneficial, the exemption furnishes only a ground of appeal to the quarter sessions against the rate, and not for an action in respect of a levy made to enforce the rate.

In support of this contention, the cases of The Churchwardens of Birmingham v. Shaw, 10 Q. B. 868 (E. C. L. R. vol. 59), and The Queen v. Bradshaw, 29 Law J., M. C. 176, were cited. It cannot be denied that these deliberate decisions of the Court of Queen's Bench are directly in point in favour of the defendants. And we think it is our duty to defer to them, and to leave all further argument respecting them for the consideration of the court of error.

Possibly the two points may resolve themselves into one, viz. whether there can ever be an exemption from liability to rate, where there is an actual occupation by the person rated,-in other words, whether the true ground on which an occupation for public purposes has been held exempt, be not, that, in such cases, the occupation was that of the public, and there was no occupation at all by the person rated; and whether, therefore, the principle is not inapplicable whenever there is an actual occupier, notwithstanding *he derives no individual benefit from [*842 his occupation. If this be so, the actual occupation may well be regarded as bringing the case within the statute of Elizabeth, so as to render an appeal to the sessions the only proper mode of disputing the propriety of the rate. But, if the exemption be regarded as based on the doctrine that the word "occupier" in the statute of Elizabeth (which gives power to raise money by taxation of "every occupier of land," &c.) ought to be construed to mean "beneficial occupier," then it is certainly very difficult to understand the principle on which The Churchwardens of Birmingham v. Shaw and The Queen v. Bradshaw proceeded; because, if this be so, the statute may be read as if the words of it were every beneficial occupier of lands," &c.; and how then can a valid rate be made on an occupier who is not a beneficial one? Surely there can be no distinction, on such a construction of the statute, between a man not an actual occupier of any rateable property (who clearly is not put to an appeal) and a man not a beneficial occupier of any; seeing that, if the statute be so read, one is just as much out of the reach of it as the other.

66

WILLES, J.-I agree that the judgment ought to be for the defendants upon the ground, that, upon the true construction of the transfer(a) The decision has since been affirmed.

ring statute (18 & 19 Vict. c. clxxi.), the plaintiffs took the property rated in the same condition as to liability to the rate in which it was when in the lands of the original proprietors.

I cannot truly say that I think replevin would not have been maintainable had there been no liability to be rated. I do not see how it can be maintained that the statutory avowry can be proved, where there is an absolute exemption from the rate. For obvious reasons, *843] however, I prefer not unnecessarily to give a final opinion on this point: and I think it is unnecessary to do so, because, having heard all that could be said for the plaintiffs in the argument of Sir Fitzroy Kelly, I think the plaintiffs are liable to be rated in respect of the property in question. Judgment for the defendants.(a)

(a) A writ of error is pending,-M. T. 1861.

BAILEY and Another v. SWEETING. Jan. 17.

A. upon one and the same occasion bought several parcels of goods of B., one parcel (consisting of chimney-glasses, amounting to 387. 10s. 6d.) for ready money, the rest (some of which had to be manufactured) on credit. The goods were sent to A. at different times. The chimney-glasses being damaged in the carriage, A. declined to receive them. A. afterwards, in answer to an application by B. for payment for the whole of the goods, wrote to him in substance as follows:-"The only parcel of goods selected for ready money was the chimney-glasses, amounting to 381. 108. 6d., which goods I have never received, and have long since declined to have, for reasons made known to you at the time: with regard to the rest, I am ready to pay," &c.

An action having been brought to recover the value of the whole of the goods, A. paid into court sufficient to cover all but the price of the chimney-glasses, and the jury found that the chimney-glasses were sold under a separate contract from the rest of the goods :-Held, that the letter, inasmuch as it contained an admission of the bargain and of all the substantial terms of it, was a sufficient note or memorandum of the contract to satisfy the 17th section of the Statute of Frauds, notwithstanding the subsequent attempted repudiation of liability.

THIS was an action brought to recover a sum of 761. 14s. 3d. for goods bargained and sold. The defendant paid 381. 88. 9d. into court, and as to the rest of the claim pleaded never indebted.

At the trial before Erle, C. J., at the sittings in London after last Easter Term, the following facts appeared in evidence:-The defendant was a furniture dealer at Cheltenham: the plaintiffs were manufacturing upholsterers and cabinet makers in London. In July 1859, the defendant called at the plaintiffs' place of business in London, and then purchased five *chimney-glasses (a "job lot," as it was called), *844] which were to be paid for by check on delivery. He at the same time purchased other goods on credit to the amount of 397. 108. 19d., some of which had to be made for him. The chimney-glasses were packed and sent by carrier, addressed to the defendant at Cheltenham. They were, however, found to be so damaged when they reached their destination that the defendant refused to receive them, and at once communicated such refusal to the plaintiffs.

The other goods were subsequently forwarded at three different times, with separate invoices, and were duly received by the defendant. The value of these parcels was covered by the payment into court: and the

question was, whether the defendant was liable in respect of the chimney-glasses, the value of which with the cases was 387. 10s. 6d.

On the part of the plaintiffs it was insisted that the whole of the goods were sold under one contract, and that the case was taken out of the Statute of Frauds (29 Car. 2, c. 3, s. 17) by the acceptance of part. They also relied upon the following letter addressed to them by the defendant, as being a sufficient memorandum to satisfy the requirements of that statute :"Cheltenham, December 3d, 1859.

Gentlemen,-In reply to your letter of the 1st instant, I beg to say that the only parcel of goods selected for ready money was, the chimneyglasses, amounting to 381. 10s. 6d., which goods I have never received, and have long since declined to have, for reasons made known to you at the time. With regard to the other items, viz. 11l. 48. 9d., 147. 138. and 137. 13s., for goods had subsequently (less cases returned), those goods are I believe subject to the usual discount of 51. per cent.; and I am quite ready to remit you cash for these parcels at once, and, on receipt of your reply to *this letter, will instruct a friend to call on you and settle accordingly."

[*845 For the defendant it was insisted that the contract for the chimneyglasses was a separate and distinct contract, and void for want of a sufficient memorandum.

His lordship (at counsel's request) left it to the jury to say whether the bargain for the chimney-glasses was a separate and distinct bargain from that for the rest of the goods, telling them, that, if they were of that opinion, they must find for the defendant.

The jury found that the two were separate and distinct transactions, and accordingly returned a verdict for the defendant.

Hawkins, Q. C., in Trinity Term last, pursuant to leave reserved to him at the trial, obtained a rule nisi to enter a verdict for the plaintiffs for 381. 10s. 6d., on the ground that the defendant's letter of the 3d of December, 1859, was a sufficient memorandum or note in writing to satisfy the statute, or for a new trial on the ground that the verdict was against evidence.

H. James and Tompson Chitty showed cause.-The whole was not necessarily one contract because all the goods were purchased at one and the same visit to the warehouse. In truth, the contract for the chimney-glasses for ready money was totally distinct from that for the other goods, which were bought on credit. It was clearly a question for the jury: Scott v. The Eastern Counties Railway Company, 12 M. & W. 33. Here, the evidence shows that there were two distinct bargains. [ERLE, C. J.-In Baldey v. Parker, 2 B. & C. 37 (E: C. L. R. vol. 9), 3 D. & R. 220 (E. C. L. R. vol. 16), A. went to the shop of B. & Co., linen-drapers, and contracted for the purchase of various articles, each of which was under the value of 107., but *the whole amount[*846 ed to 70l. a separate price for each article was agreed upon; some A. marked with a pencil, others were measured in his presence, and others he assisted to cut from larger bulks. He then desired that an account of the whole might be sent to his house, and went away. A bill of parcels was accordingly sent, together with the goods, when A. refused to accept them: and it was held that this was all one contract, and therefore within the 29 Car. 2, c. 3, s. 17. KEATING, J.-Bigg v.

Whisking, 14 C. B. 195 (E. C. L. R. vol. 78), is much to the same. effect, and there the different parts of the contract were arranged at several different places. ERLE, C. J.-Holroyd, J., says in Baldey v. Parker, "The intention of the statute was that certain requisites should be observed in all contracts for the sale of goods for the price of 102. and upwards. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than 107., but in the course of the dealing it grew to a contract for a much larger amount. At last, therefore, it was one entire contract within the meaning and mischief of the Statute of Frauds; it being the intention of that statute, that where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of 107., it should not bind, unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of 10%., as if it had been originally of that amount. It must therefore be considered as one contract within the meaning of the act." The court there dealt with it as a question of law.] In Baldey v. Parker, the buyer directed an invoice of the whole to be sent to him. That made it all one contract. So, in Bigg v. Whisking, there was one memorandum embracing all the timber. And in Scott v. *The Eastern Counties Railway Company there was but one order *847] given. "One transaction" is a somewhat ambiguous expression. On a sale by auction, though the same person is the buyer of several lots, each lot forms the subject of a distinct contract: James v. Shore, 1 Stark. N. P. C. 426 (E. C. L. R. vol. 2); Emmerson v. Heelis, 2 Taunt. 38; Roots v. Lord Dormer, 4 B. & Ad. 77 (E. C. L. R. vol. 24); Franklyn v. Lamond, 4 C. B. 637 (E. C. L. R. vol. 56). (a) The more important question, however, is, whether the defendant's letter of the 3d of December, 1859, was a sufficient note or memorandum of the bargain to satisfy the statute. The subject is adverted to in Mr. Justice. Blackburn's treatise on the Contract of Sale, p. 66, where the learned author says: "It sometimes happens, that, after a dispute has arisen, a party in a letter signed by him recapitulates the whole terms of the bargain, for the purpose of saying that the bargain is at an end for some reason which is evidently insufficient in law. It has never been decided whether such an admission of the terms of the bargain, signed for the express purpose of repudiation, can be considered a memorandum to make the contract good; but it seems difficult on principle to see how it can be so considered. The parties may either of them put an end to the contract at any time whilst it is not good, with cause or without cause; and a memorandum of the terms comes too late to make a con*848] tract good which is already put an end to. There is evidently a great difference between a writing which, after the dispute has arisen, mentions the terms of the contract for the purpose of showing that the bargain is at an end, and one which recognises them as still subsisting. I know only of three cases in which this point could

(a) In Franklyn v. Lamond, the plaintiff was the purchaser at a public auction of three lots of one hundred railway shares each; and Maule, J., says: "As each lot was knocked down to the plaintiff, there was a distinct contract for the sale of one hundred shares, which would be satisfied by the delivery of any shares in that company to that amount. But the subsequent delivery and receipt of the three hundred shares, with the bill of parcels produced, and the payment of the 157., showed that the parties treated the transaction as one entire sale of three hundred shares."

have been decided; and, though in each of them the memorandum was held insufficient, they seem to have been decided on special grounds. In Cooper v. Smith, 15 East 103, in 1812, the decision of the court seems to have turned on the fact of the note containing terms materially different from those of the bargain declared on and proved. In Richards v. Porter, 6 B. & C. 437 (E. Č. L. R. vol. 13), 9 D. & R. 497 (E. C. L. R. vol. 22), in 1827, the defendant wrote to the plaintiffs,The hops, five pockets, which I bought of Mr. Richards on the 23d of last month, are not yet arrived, nor have I ever heard of them. I received the invoice. The last was much longer than they ought to have been on the road; however, if they do not arrive in a few days, I must get some elsewhere.' The plaintiffs were nonsuited, and the King's Bench held the nonsuit right. Lord Tenterden said: 'I think this letter is not a sufficient note or memorandum in writing of the contract to satisfy the Statute of Frauds. Even connecting it with the invoice, it is imperfect. If we were to decide that this is a sufficient note in writing, we should in effect hold, that, if a man were to write and say, I have received your invoice, but I insist upon it that the hops have not been sent in time, that would be a note or memorandum sufficient to satisfy the statute. I think the case of Cooper v. Smith, 15 East 103, in substance is not distinguishable from this.' In Smith v. Surman, 9 B. & C. 561 (E. C. L. R. vol. 17), 4 M. & R. 455, in 1829, the plaintiff's attorney wrote to the defendant,-'Sir,-I am directed by Mr. Smith, of Norton Hall, to

request you will forthwith pay for the *ash timber which you [849

purchased of him. The trees are numbered from 1 to 19, and contain on a fair admeasurement 229 feet, 7 inches. The value, at 18. 6d. per foot, amounts to 177. 38. 6d. I understand your objection to complete your contract, is, on the ground that the timber is faulty and unsound; but there is sufficient evidence to show that the same timber is very kind and superior, and a superior marketable article. I understand you object to the manner in which the trees were cross cut; but there is also evidence to prove they were so cut by your direction. Unless the debt is immediately discharged, I have instructions to commence an action against you.' The defendant wrote in answer,- Sir, I have this moment received a letter from you, respecting Mr. Smith's timber, which I bought of him at 1s. 6d. per foot, to be sound and good, which I have some doubt whether it is or not; but he promised to make it so, and now denies it. When I saw him, he told me I should not have any without all, so we agreed upon these terms, and I expected him to sell it to somebody else." This was held not a sufficient note or memorandum of the bargain. Bayley, J., seems to have formed his judgment partly because the vendee did not recognise the bargain as a binding bargain; the other two judges, Littledale and Parke, only say that the letters were inconsistent." In Taylor v. Wakefield, 6 Ellis & B. 765, it was verbally agreed between the owner of goods and a person who was in possession of those goods as his tenant, that the tenant might, if he pleased, at the termination of his tenancy, purchase the goods for a sum exceeding 107., but was not to take them till the money was paid. the expiration of the tenancy, the buyer tendered the price; but it was refused by the vendor, who denied the validity of the bargain. After this the buyer proceeded to take away the goods: the vendor prevented him, and took possession of them. In trover by the [*850

C. B. N. S., VOL. IX.-31

At