choose to take them into his own custody, or to cause them to be examined in proper time, it is his own fault, and the buyer, being neither a party to nor cognizant of the delay, has a right to assume that the goods are accepted. The fact is that goods are accepted by mere lapse of time after delivery has once taken place. The amount of that time is that which is sufficient for the due examination or trial of the goods; and it begins to run from the delivery.

The law as we have laid it down in all these cases of intermediate delivery is fully illustrated, and in the recent one of Wilkins v. Bromhead, 6 M. & Gr. 963, it is confirmed by the following judgment, pronounced by the greatest of modern judges. In that case the plaintiff employed B. to build him a greenhouse for 501. When it was completed, B. gave plaintiff notice, and requested him to remit the price; plaintiff remitted the amount, and desired B. to keep the greenhouse till sent for. Afterwards B. (unknown to plaintiff) deposited the greenhouse with C., telling him that it was the property of A., and requesting him to keep it for A., which he agreed to do. B., having become bankrupt, his assignees took possession of the greenhouse, and trover was brought by the plaintiff to recover it.

"Tindal, C. J. said 'The motion before the court proceeds upon two distinct grounds: the first ground is, that under the contract no property in the greenhouse in question passed to the plaintiff (A.); the second, admitting that the property did pass by the contract, as the greenhouse remained in the possession of the bankrupts, or of Wait, down to the time of the bankruptcy, it must be taken to be property in their order and disposition as reputed owners, with the consent and permission of the true owner, and consequently that it vested in their assignees.

"As to the first point, there can be no doubt but that a contract for the making of a chattel does not of itself vest the property in the chattel when completed in the person giving the order. But here the question turns not upon the original contract, but upon the circumstances which afterwards took place, viz. the payment by the plaintiff, after the greenhouse had been completed, of the stipulated price, the appropriation and setting apart by the bankrupts of the greenhouse for the plaintiff, and his assent to such appropriation. There was an appropriation on the one side, and an assent to such appropriation on the other, which, I think, was quite sufficient to pass the property to the plaintiff. It may be that the original contract did not pass the property, but the parties may be said to have entered into a new contract. I cannot conceive why, under the circumstances of this case, the property in an article made to order should not pass upon its completion, as it would have done if it had been in existence at the time of the original contract. The objections raised upon this point were mainly founded upon Atkinson v. Bell. But if that case

be examined it will be found not to apply. The decision there turned entirely on the absence of assent on the part of the purchasers to the appropriation of the machines by the vendor. It is said by Bayley, J. 6 These were Sleddon's goods, although they were intended for the defendants, and he had written to tell them so. If they had expressed their assent, then this case would have been within Rohde v. Thwaites, and there would have been a complete appropriation, vesting the property in the defendants. But there was not any such assent to the appropriation made by the bankrupt, and therefore no action for goods bargained and sold was maintainable.' Holroyd, J. observes, I think the action will not lie for goods bargained and sold, because there was no specific appropriation of the machines assented to by the purchasers, and the property in the goods therefore remained in the maker.' And Littledale, J. adds, "There could not be any sale in this case, unless there was an assent by the defendants to take the articles.' Looking at the facts of this case, it seems to me that there is complete evidence of assent on the part of the plaintiff to the appropriation made by the vendors. The plaintiff was informed by letter that the greenhouse was finished, and was requested to remit the price. He did so, at the same time requesting the vendors to keep the greenhouse for him until he sent for it. It has been argued that the letter of the plaintiff, desiring Smith and Brown to keep the greenhouse for him, was written before the article was seen, and that it would be hard if it were held to be such an acceptance as would preclude him from rejecting the article if it afterwards turned out defective in its construction. If a purchaser's assent to the appropriation was shown to have been obtained by misrepresentation, it seems to me it would probably be held to be no assent at all. But that is not the case here; and although the plaintiff thought proper to assent to the appropriation without seeing the greenhouse, the assent was not the less complete. Upon this point, therefore, I think that the property vested in the plaintiff so as to enable him to maintain this action.""

The words of the Statute, that the "buyer shall accept part of the goods so sold, and actually receive the same," are, therefore, not literally construed, and a constructive receipt suffices.

Applying this principle as to what is delivery to each case, it merely remains to be inquired how long a time must elapse before the acceptance is sufficiently complete to charge the buyer. This is of course in great measure a question for the jury, according to the nature of the article and the custom of trade. Lord Abinger, C. B., has laid it down in the case of Chapman v. Morton, 11 M. & W. 534, that where a buyer "intended to renounce the contract, he ought to have given the plaintiffs distinct notice at once that he repudiated the goods;" and this is not a matter in any doubt.

In Richardson v. Dunn, 2 Q. B. 218, where the buyer of

coals was informed by invoice and letter that a smaller quantity had been shipped to him than he had contracted for, it was held that silence for a week was tantamount to an assent to take the coals; that such silence amounted to acceptance, and he was liable for the amount in assumpsit for the price; see also Coleman v. Gibson, 1 M. & Rob. 168. In Edan v. Dudfield, 1 Q. B. 302, the goods were already in the hands of the defendant, the buyer, before the sale to him; and the Court held that the jury were to judge how far a conversation and the subsequent disposal of the goods by the defendant amounted to acceptance.

It will be thus observed that delivery and acceptance are totally distinct, and from their nature can never be completed at the same time; for, however short the interval may be, some interval must elapse after the delivery of goods, for the purpose of their examination.

Contracts of sale may be repudiated wherever the article delivered does not fulfil the terms of the contract. The cases where the terms are express require little explanation. If a man orders a certain article, specifying how it shall be made, it is sufficient if it be made as he directed; if this be done, it matters not how ill suited it may be to the purpose he had in view: that is his fault and not the fault of the seller. If the buyer's orders are fulfilled he is bound by their defects. Not so if there be material deviations, and what is a material deviation is for the jury to decide. Where, however, an article is simply ordered to be made without any further description than its ordinary name, it must then answer the purpose for which such article is ordinarily designed. Of this Cousins v. Paddon, 1 C. M. & R. 547, is a standard case; and evidence that it does not answer its ordinary purpose is a complete defence to an action for the price.

It will be observed, that there are other modes whereby the statute is satisfied of acceptance short of the act itself. One of these is earnest. When "earnest," or "part payment," has taken place, the bargain is sufficiently complete to be sued upon, though for goods above 101. in price. The moment this payment has taken place, the property is in the purchaser, and the full payment can be enforced, although the actual acceptance has not taken place. The action must, however, still be preceded by a delivery. The question of this part payment, and how far it has been made, is of course one for the jury to determine. The other mode of binding a bargain for goods above 107. in price is, where "some note or memorandum in writing" of it be" made and signed by the parties to be charged by such

contract, or their agents thereunto lawfully authorized." Without one of these three modes of evidencing a bargain,-acceptance, part payment, or a memorandum,-there is no bargain at all: it is void. The memorandum must name the seller, to identify the bargain, and it must be signed by or for the buyer. The price ought also to be named (see Elmore v. Kingscote, 5 B. & Cr. 583); but it will suffice without it, in which case it must be implied that reasonable terms are meant. No particular form of memorandum is required; the intent of the parties that it should bind the bargain is all that need appear, and where there are two or more writings it suffices if the intent so appears. When any of these three modes of concluding a contract exists, it is, as we have said, competent to either party to compel its completion by the other, provided the plaintiff has performed his part of it. The duties of the vendor are to deliver the goods, or what is (and has been treated in the above remarks as) the same thing, is to put them into the possession or control of the buyer according to contract, and to take care that the thing so delivered is that which was bargained for. The duty of the vendee is to accept and pay for the thing so delivered. An action will lie against him for default in accepting as well as paying for goods thus bargained and delivered. If however there be delay in the delivery, so that the goods are no longer of the value or use to the buyer they would have been if properly delivered in due time, or if they be not the sort of goods bargained for, the buyer is in either case entitled to rescind the contract in effect the contract has not been fulfilled by the one party, and it cannot be enforced against the other. The bargain in such a case sought to be enforced would not be the bargain made. The mode of rescinding contracts is, however, foreign to the branch of the law of contracts we have endeavoured to explain in this article.

ART. III.-REFORMATORY PUNISHMENTS.

Report of the Select Committee of the House of Lords to inquire into the Execution of the Criminal Law, especially respecting Juvenile Offenders and Transportation.

WHE

THETHER it be a pure dearth of other matter as food for discussion in the Parliamentary interregnum, or whether it be a prelude to the actual reform of our Criminal Law, that we must attribute the increased stir on this subject, we will not pretend to determine. Sure it is that seldom has so much been said or written on the question. We have endeavoured frequently to assist in the work, from an honest conviction that nothing is more essential to the general interests of the community or to the character of the nation, and we intend to pursue it in season and out of season.

A very important document lies before us: and inasmuch as it gives the deliberate opinion of our Judges of England, Ireland and Scotland, the Inspectors of Prisons, Magistrates, Gaolers, and others best informed on criminal punishments, we feel it incumbent on us to give full publication to this useful body of opinion, which will derive much weight from the important fact that it is nearly unanimous.

I. As regards THE POLICY OF TRANSPORTATION. The Report says:

"In the first place, nearly all are agreed that the punishment of transportation cannot safely be abandoned; that it has terrors for offenders generally which none other short of death possesses; that no such fear attends imprisonment, especially for hardened offenders; that no hope exists of imprisonment being so far rendered more formidable as to supply in all respects the place of transportation. There prevails some slight difference of opinion, but more in appearance than reality, as to what classes of criminals dread it the most; for when one or two of the witnesses state that prisoners in a superior station-as merchants' or bankers' clerks, or persons in the law-convicted of forgery, would prefer being sent abroad because they are observed, when under sentence of imprisonment, to have a peculiar fear of being seen and recognised, the same witnesses allow that these individuals, if imprisoned in places where they are unknown, would deem the punishment much less heavy than transportation. The evidence all plainly points to the conclusion that this punishment has peculiar terrors for such persons, and there is only one opinion given by all the witnesses, or rather one fact stated by them -as to receivers of stolen goods, by whom transportation is dreaded in an extreme degree."

VOL. VII. NO. XIII.