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· His Lordship left it to the Jury, to say, whether 1816. Pellowe went abroad for fear of arrest, and they found that he went abroad for both purposes. and Another

WARNER

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The Solicitor General, Vaughan, serjeant, and Puller, for plaintiffs.

Lens, and Best, serjeants, and Campbell, for defendant.

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In some of the early cases

The intent, and the act, thereit was held, that if a trader fore, must both concur to condepart the realm, and his cre- stitute the crime. But in a ditors are thereby delayed, later case K. B. decided, that though there was no intent to the departure of a creditor from delay, it was notwithstanding his house with an intent to an act of bankruptcy. Raikes delay his creditors, was an act v. Porean, Cooke's Bankrupt of bankruptcy, though no creLaws, 73. Vernon v. Hankey, ditor was in fact delayed. Ro. ibid. In Fowler v. Padget, 7 bertson v. Liddell, 9 East, T. R. 509., this rule was re

487. See likewise Ilolroyd y. strained, and three of the Gwynne, 2 Taunt. 176. Wil. Judges were of opinion in that lium v. Nunn, 1 Taunt. 270. case that'or' in the statute. and Chenoweth v. Hay, i should be read and;' and Maule and Selw. 676. From that there must not only be a these cases it appears, that the departure and a delay, but an construction which obtained in intent to delay. It was ar- Fowler v. Padget is not a gued that bankruptcy was a sound one; that it is unneces

crime, and it is a principle of sary to change the words in the • natural justice, that actus non statute of James':-that the facit reum nisi mens sit rea. intent, and not the actual de. VOL. I.

N

1816. lay, was what the statute there was a possibility of delay

meant; and that, the moment or not. See likewise WindWARNER the intent is ascertained, it ham v. Paterson, i Stark, N. and Another becomes immaterial whether P. 144.

BARBER.

TALVER and Another v. WEST.

THIS

The delivers ITHIS was an action to recover the price of of a sample, which is no some trefoil sold by plaintiffs to defendant: part of the thing sold, will the invoice delivered to the defendant was as folnot take a sale lows, · Bought of Talver and Prestwich the half tute of frauds, qnantity of 400 sacks of trefoil, to be made up to 27 ple be deliver ton, at 101. per ton. On the other side credit was ed as part of the bulk, it given for some hops sold by the defendant to the then binds tlie contract,

plaintiffs, and a balance stated to be due to them of 2081. The hops were taken in part payment of the trefoil, which remained in the plaintiff's' warehouse; no sample or delivery was made of any part, and no money was paid ; but the invoice had been delivered to the defendant, who read it at the time of the sale. Some months after, the defendant came to the warehouse and asked for his seed; it was at that time set apart for him in the store, but had no particular mark to denote to whom it belonged. Defendant took samples of it, and inquired if it had not been thrown down and mixed; he finally refused it.

Vaughan, serjeant, for the defendant, objected,

1816.

that there was no part-delivery or earnest. Some of the trefoil was set apart in the plaintiffs' ware

TALVER house ; but no name was put on the sacks to de- and Another signate them. The sale therefore was void by the statute of frauds.

WEST.

Best, serjeant, for the plaintiffs, contended, that there was a part payment by the delivery of the hops, which would take it out of the statute of frauds.' The defendant, moreover, takes samples, and, twelvemonths after the contract, comes to the warehouse to demand his seed, which is there set apart for delivery.

GIBBS, C. J.-If the trefoil were sold, to be paid for in part by the delivery of the hops, the plaintiffs should have declared specially, and not for goods sold and delivered; but I consider this case not within the statute. The delivery of a sample, which is no part of the commodity, will not take the case out of the statute ; but if the sample delivered is to be considered as part of the thing sold, it then binds the contract. It is then an exccution of the bargain. The sale in this case was complete when the invoice was delivered and the defendant afterwards took samples. He took them for his own use; they were delivered to him as part of the bulk; not as an ordinary sample to guide his judgment previous to a purchase; but in order to give him possession of the thing itself. The statute therefore does not apply.

Verdict for plaintiff.

1816.

Best, serjeant, and Comyn, for plaintiffs.

TALVER and Another

D.

Vaughan, and Copley, serjeants, for defendant.

WEST.

(Attornies, Cluton and C.

-Meyrick and B.]

Where goods are ponderous, with the commodity as if it and incapable of being handed were in his actual possession, over from

one to another, this will supersede the necesthere needs not be an actual sity of proving actual delivery. delivery, but it may be done Chaplin v. Rogers, 1 East, by that which is tantamount, 192. See likewise Kent 1. 'such as the delivery of a key Huskinson, 3 B. and P. 233. of the warehouse in which the Hinde v. Whitehouse, 7 East, goods are lodged, or by the 558. Anderson v. Scott, 1 delivery of other indicia of pro- Camp. 235. perty. So if the purchaser deal

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1816.

MILN . PREST and Another.

ACTION on a bill of exchange, drawn on the A promise - 10th of August, 1815, by Wilson in favour of a

by letter to

accept a nonSmart, and indorsed to the plaintiff. The question

esisting bill is

no acceptance was, whether under the circumstances of the case,

drawn, unless the act of the defendant was equivalent to a legal it be commu.

nicated to the acceptance. The drawer, who resided at Dundee, person who is

to receive the was agent for the defendants, and had consigned bil. some wheat to them. He had been employed to

duced to take purchase corn, and the present bill was given in it..

An acceptpayment for the wheat. Some letters of the de- ance is as valid

by parole as fendants were read, in one of which (9th August, by writing, 1815,) they write to Wilson, “ We acquit you of tional accentbuying wheat instead of oats—we will however ance is as ef

fcctual as an accept the bills for the wheat when we receive 10- absolute one,

if the condi. tice of its being shipped. On the 14th, Wilson tion be com. wrote to the defendants, and inclosed an invoice of the wheat which was then on the voyage, and re quested the defendants to honour the bill which he had drawn. On the 16th, a clerk took the bill to Prest and Sons to be accepted, and left it. On the next morning he called, and was told the defendants had no advice, and was requested to call again. On the 18th he called for the last time, and was told that the bill would not be accepted until the wheat arrived. Shortly afterwards the wheat arrived, which the defendants accepted and sold,

with.

Vaughan, for defendants.

he bill is drawn the

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