Willes in the case of Behn v. Burness (30), the law is thus laid down: "In cases where the thing sold is not specific and the property has not passed by the sale, the vendee may refuse to receive the thing proffered to him in performance of the contract, on the ground that it does not correspond with the descriptive statement, or in other words, that the condition expressed in the contract has not been performed, still if he receive the thing sold and has the enjoyment of it, he cannot afterwards treat the descriptive statement as a condition but only as an agreement, for a breach of which he may bring an action to recover damages." And in the last edition (1871) of the notes to Williams' Suunders, vol. i. p. 554, the result of several cases is thus stated by the learned editor: "When it appears that the consideration has been executed in part, that which was before a warranty or condition precedent loses the character of a condition, or, to speak more properly, ceases to be available as a condition and becomes a warranty in the narrower sense of the word, namely, a stipulation by way of agreement, for the breach of which a compensation must be sought in damages." Although the property in the goods, whether under an immediate or an executory contract of sale, may have passed, there may still in each instance be a lien for the purchase money and a right to stop in transitu, and the purchaser may not be entitled to possession without payment of the price.

In cases of executory contracts where there is a warranty of quality, the purchaser is not only not bound to receive the goods, unless they correspond with the warranty, but even after they have been delivered by the vendor, may reject them on discovering the defect.

It is, however, generally necessary, in order to enable the purchaser to recover back the price which he may have paid for the goods, that he should not have done more than was necessary for a fair trial of them or for the purpose of examination and comparison, and also that he should reject the goods within a reasonable time, and that, he should not have (30) 3 B. & S. 76; s. c. 32 Law J. Rep. (N.s.) Q.B. 204.

done any act to alter the position of the vendor, nor, as was said by Parke, B., in Street v. Blay (1), to delay the return of the goods. If the purchaser has exercised acts of dominion over the goods, as by parting with the property in them, or has prevented the vendor being placed in the same situation, then, generally speaking, he will not be entitled to return or reject them-Street v. Blay (1), and see also Hunt v. Silk (6), Clarke v. Dickson (22), especially the observations of Mr. Justice Crompton, and the conclusion of the judgment in Blackburn v. Smith (7).

In some cases, however, such as where the goods are utterly valueless, the dealing with them by the purchaser has been held not to affect his right to reject and to refuse to pay anything for them, as in Poulton v. Lattimore (31), where the purchaser had sown some and sold other parts of certain clover seed, which had been warranted as new growing seed, but the whole of which turned out to be totally unproductive and useless.

In determining what is a reasonable time for rejecting the goods, the conduct of the seller may be taken into consideration, as where by a subsequent misrepresentation he has induced the purchaser to prolong the trial-Adam v. Richards (32), and where a purchaser is entitled to reject goods and gives notice to the vendor that he has done so, the latter is bound to take them away, and if he omit to do so they remain at his risk, as was laid down by Mr. Justice Bayley in Okell v. Smith (33).

Upon the argument it was agreed that the Court should deal with the question of damages, independently of the particular form of the pleadings in this action.

If the case had rested on the original contract, we should have thought, as to the 12,225 pairs of shoes sent to France, that by the appropriation of these shoes by the defendants for the plaintiffs, the inspection and examination of them by the plaintiffs' agents, their being passed by those agents, the making out of invoices of shoes so passed, debiting the plaintiffs for them as bought by the plain(31) 9 B. & C. 259. (32) 2 H. Bl. 593. (33) 1 Stark. 107.

tiffs from the defendants, the delivery of them at the wharf, and the defendants having no further control over them, the plaintiffs paying the defendants the amount of the invoices, and subsequently sending the goods as their own to France and causing the freight and duty to be paid on them, and tendering them to the French authorities under the contract of Mr. Potel, they must be taken to have accepted those shoes, that the property in them vested in the plaintiffs, and that they were not at liberty to reject the shoes and throw them back upon the defendants' hands. See, in addition to the cases cited, and those already referred to, Rohde v. Thwaites (34) and Parker v. Palmer (35). The same rule would also, in our opinion, have applied to the small quantity of shoes which were approved, passed and delivered and paid for and received at Fenning's Wharf.

In this view of the case the shoes delivered would have remained the property of the plaintiffs and at their risk, though they would still have been entitled to claim damages by reason of the breach of warranty, and would not be precluded by their acceptance of the goods, or the vesting of the property in them from maintaining this action.

The damages, however, in that case would not have included the whole price paid for the shoes, but only the difference between the value of those which were delivered and what would have been their value if they had been supplied according to the contract with such other amounts as the plaintiffs could legally establish.

The plaintiffs were not content with this view of the case, but desired to throw the shoes altogether upon the defendants, and contended that they were entitled to recover back the whole price which they paid for the shoes as well as the expenses to which they had been put and the loss of profits from their being prevented carrying out the contract with the French Government, and the question is, what damages the plaintiffs are entitled

to recover.

The contract was expressly made for army shoes; at the time it was entered (34) 6 B. & C. 388. (35) 4 B. & Ald. 387.

into both parties were aware that the shoes were wanted for the French army and for a winter campaign, and by the 13th of February the defendants were aware that the shoes were to be forwarded to Lille in fulfilment of a contract with the French authorities, and that the shoes would be rejected, and the contractors probably imprisoned if the shoes which were tendered should be found to contain paper fillings in the soles. The letter which is dated the 10th of February and was signed on the 13th must be construed with reference to the state of things existing, and of which the defendants were aware at that time. The defects in the soles of the shoes were such as could not be discovered by any ordinary inspection or examination, or indeed without cutting open the soles, and the defendants, as the manufacturers, would be responsible for the improper acts of the workmen employed by them to manufacture the shoes in putting improper fillings into the soles. It must also, we think, be considered that they had by their statements and conduct induced the plaintiffs to believe that there was little or no paper in any quantity of the shoes, and with a knowledge on their part that if the soles of the shoes were found to contain paper they would in all probability be rejected by the French authorities.

Upon the finding of the jury as to the letter of the 11th of February it must, we think, be treated as a new additional contract between the parties, adding fresh terms to the original contract with reference to the difficulties which had arisen and were likely to arise with the French authorities at Lille; and upon the proper construction of the whole contract, including the letter of the 11th of February, we are of opinion that the plaintiffs were entitled to throw back the shoes upon the defendants' hands at Lille upon their being rejected by the French authorities if a large quantity of them did in fact contain paper in the soles. We think it was not necessary that every shoe should be cut open, and the examination that has been made of a large number of them before and since the action was commenced was sufficient to shew that a large proportion of them did contain paper,

and we think, therefore, that the plaintiffs were entitled to throw back the whole of those which had been forwarded to France upon the defendants' hands at Lille, that the defendants were bound to take them back at that place, and that as the shoes were rejected by the plaintiffs, and due notice given to the defendants, the shoes remained at the risk of the defendants and were their property, and that they are liable to repay to the plaintiffs the whole of the price paid for those shoes.

We are of the same opinion with respect to the shoes delivered at Fenning's Wharf and paid for by the plaintiffs, but not forwarded to Lille, and which were sold by arrangement as before mentioned.

It was contended for the defendants that as the sample shoe contained paper, and the French government would have rejected the shoes if they had been precisely in accordance with the sample in that respect, that the damages and especially the loss of profit did not result from the breach of warranty in the shoes not being equal to sample, but the fact of the improper paper fillings in the sole of the sample shoe was a hidden defect, and appears to have been unknown to all parties; it could not be seen or discovered by any ordinary examination of the shoes, and the letter of the 11th of February was expressly directed to the point of paper being in the shoes, and in our opinion gave the right to reject the shoes on that ground, and entitles the plaintiffs to recover the loss of profit which would have accrued if the shoes had been accepted by the French authorities.

The question was raised, and very properly, as to the right of the plaintiffs to recover as damages the charges and expenses incurred in sending the goods to Lille and the expenses upon them there, and the only remaining question as to the damages was whether the plaintiffs were entitled to recover as damages the loss of profit on the 17,000 pairs of shoes which were ready for delivery though not delivered to the plaintiffs. It seems to us upon the finding of the jury, that these shoes also were not according to the contract, and as the whole formed part of one contract there is no valid distinction in this respect between these shoes and

those which were in fact delivered, and that the plaintiffs are entitled to recover the loss of profit upon the whole quantity.

With reference to this last point a further question was raised, as a ground for a new trial, that the verdict was against the weight of evidence as to these 17,000 pairs of shoes, but we think there was abundant evidence to warrant the finding of the jury; the defendants' evidence was most unsatisfactory. My brother Brett, who tried the case, reports to us that he is not dissatisfied with the verdict, and we see no sufficient grounds for setting it aside or interfering with it upon this point.

Upon the whole we are of opinion that the plaintiffs are entitled to maintain the verdict for the whole amount of damages for which it was entered, that the shoes are the property of the defendants and remain at their risk, and that the rule to reduce the damages or for a new trial must be discharged.

I will now read the judgment of

BRETT, J.-I agree with the Lord Chief Justice in the conclusion at which he has arrived. I agree also with the construction given by my Lord to the agreement of the 11th of February and its effect upon the original contract, and on the plaintiffs' rights. But I am with much deference unable to agree with the view expressed by my Lord of the plaintiffs' rights as affected by the original contract if it stood alone, and the events which bappened. I think that under the original contract and on the events which ensued, the plaintiff's would have had the right to throw the shoes upon the defendants' hands at Lille. Besides the incidents attaching to a contract of sale by sample, which have been enumerated by my Lord, I think there is also the following: that such a contract always contains an implied term that the goods may under certain circumstances be returned; that such term necessarily contains certain varying or alternative applications, and, amongst others, the following: that if the time of inspection as agreed upon be subsequent to the time agreed for the delivery of the goods, or if the place of inspection as agreed upon be different from the place of delivery, the purchaser

may, upon inspection at such time and place, if the goods be not equal to sample, return them then and there on the hands of the seller. Otherwise the right of inspection given to the purchaser would fail in its primary object. The time of inspection agreed upon in this contract was before delivery, and the place was London. If by any reasonable care or exercise of reasonable forethought the plaintiff's could have had before delivery and in London an inspection, which would by reasonable care or skill have been effective, I should have thought that they could not have rejected the goods at Lille; if the defect had been such as neither the defendants or anyone for whose default or negligence they were answerable in law could have by reasonable care or skill discovered, I should have still inclined, though with more doubt, to say that the plaintiffs could have rejected at Lille; but here the defendants knew from the beginning that the subject-matter of their contract was an article contracted for in order to fulfil a contract for a delivery of shoes by sample at Lille, so that if they prevented an effective inspection in London, there could be no other inspection before the arrival of the goods at Lille; and the defect in the shoes, which made the same breach of the same term as to quality in both contracts was the consequence of acts of their servants, they, the defendants, being the manufacturers of the goods; and the defect, though known to the defendants' servants, was a secret defect not discoverable by any reasonable exercise of care or skill on an inspection in London. By the necessary inefficacy of the inspection in London, an inefficacy caused by this kind of fault, namely, a secret defect in manufacture, which the defendants' servants committed, the apparent inspection in London could be of no more practical effect than no inspection at all; if it could be of no practical effect there could not, as has been observed, be any effective, and therefore any real practical inspection. Until an inspection at Lille, no real use was made or could be made of the goods before their acceptance by the French government at Lille; the apparent inspection in London being, by the acts of

the defendants' servants, no inspection at all, and consequently a real inspection at Lille being, by the acts of the defendants' servants, the first possibly effective inspection, and no use of the goods having been made before the inspection at Lille, it seems to me that such inspection was, by the acts of persons for whose acts the defendants were responsible, substituted for the first inspection stipulated for by the contract, and that the rights of the plaintiffs accrued upon that inspection as if it was the first; and therefore they were entitled to throw the shoes upon the hands of the defendants at Lille under the implied term in the contract, that if the goods should be found not equal to sample on inspection the plaintiff's might return them upon the defendants' hands at the time and place of inspection, although the time of inspection was, by the wrongful acts of the defendants' servants, become a time subsequent to the time of delivery, and the place of inspection was become different from the place of delivery. Rule discharged.

Clergy-Disturbance in Church - Molesting Clergyman celebrating Divine Service-23 & 24 Vict. c. 32.

By the 23 & 24 Vict. c. 32. s. 2, it is enacted, inter alia, that any person who shall molest, let, disturb, vex or trouble, or by any other unlawful means disquiet or misuse any preacher duly authorised to preach therein, or any clergyman in holy orders, ministering or celebrating any sacrament or any divine service, rite or office, in any cathedral, church or chapel, or in any churchyard or burial ground, shall on conviction thereof before two justices of the peace, be liable to a penalty of not more than five pounds for every such offence. A clergyman in holy orders after preaching the sermon in the course of the service in a parish church, descended from the pulpit and proceeded with another clergyman to

collect the alms whilst the offertory sentences were being read at the communion table by a third clergyman. The alms were to be devoted to the defraying of the church expenses. In passing down the church in the course of his collection, he was stopped in a forcible manner by the defendants, who claimed to be the proper persons as churchwardens to perform that duty. Upon an information laid under the above portion of the section by the clergyman against the defendants, the justices dismissed the information:-Held, that the clergyman in collecting the alms under the above circumstances was not celebrating a part of the divine service, rite or office, and that the statute did not extend to protect the clergyman when performing other duties, and therefore that the decision of the justices was right.

[For the report of the above case, see 41 Law J. Rep. (N.S.) M.C. 137.]

Landlord and Tenant - EjectmentDistress-Waiver of Forfeiture.

Where a landlord brought ejectment against his tenant on the 21st of July, claiming as from that day, and after action, distrained for rent due on the 24th of June previous,-Held, that he might still rely, in the action of ejectment, on a forfeiture accruing before the 24th of June.

This was an action of ejectment brought by the plaintiff, the landlord, against the defendant, the tenant, of certain premises. The writ was issued on the 21st of July, claiming as from that day. On the 16th of September the plaintiff levied a distress for rent due on the 24th of June, and particulars of breaches of covenant on which he relied as entitling him to reenter were delivered in October. At the trial he sought to rely on a breach of covenant (contained in the particulars) previous to the 24th of June, on which he would by the lease be entitled to reenter. A verdict was found for the plaintiff, and a rule nisi had been obtained

to set aside the verdict and enter it for the defendant, on the ground that the plaintiff could not rely on such breach, as it was waived by the distress.

Garth and Shaw were called on in support of the rule.-The distress for rent due on the 24th of June affirmed the tenancy up to that day, and waived any previous forfeiture. It is true that Jones v. Carter (1) and Dendy v. Nicholl (2), cited in the notes to Dumper's Case in 1 Smith's Leading Cases, shew that though an action for rent waives a previous forfeiture, yet if by an unequivocal act, such as bringing ejectment, the landlord has elected to treat the lease as void, a subsequent receipt of rent will not revive it. But the gist of the matter, as is shewn by the judgment in the former case, is that the act be unequivocal and notified to the lessee; but here the only thing that is unequivocal is the claim as from the 21st of July; what breach the landlord relied on was equivocal, as the lessee was not informed of this, and this being so, the distress for rent due on the 24th of June so far certified that which was equivocal by creating a sort of estoppel, and preventing the landlord from relying on breaches before that day, up to which day the landlord, by his distress, shewed his intention to treat the lease as good. And the judgments of the judges delivered in the House of Lords in Croft v. Lumley (3) support this view. To hold otherwise puts the tenant in a hard position; he cannot safely replevy or bring trespass on the distress, because he is liable to the landlord's relying on a subsequent breach, and yet the landlord can then turn round and in the ejectment rely on a previous one and thus in effect have both the land and the rent.

Denman (Dixon with him) was then called upon. The distress, as is shewn by Bridges v. Smyth (4), was illegal, for in that case it was held that a landlord who has, by serving a writ of ejectment, treated his tenant as a trespasser, cannot afterwards distrain. And Dendy V.