fendant gave notice to the station master not to part with the goods. On the 1st December, the plaintiffs, who had been appointed W.'s assignees, gave notice to the railway company that they claimed the goods, which on the 5th were redelivered to the defendant :— Held, first, that by delivery at the railway station, the defendant had divested himself of the right of stoppage in transitu; secondly, that there was no such acceptance and receipt by the bankrupt, or any one on his behalf, of the goods, as would satisfy sect. 17 of the Statute of Frauds; and thirdly, that the goods were not in the order or disposition of the bankrupt, within the meaning of sect. 125 of 12 & 13 Vict. 106 (Bankrupt Consolidation Act, 1849).

Action to recover 80%., being the value of 48 quarers of barley. The following case was stated without leadings:

1. The bankrupt, John Willden the younger, for me time prior to November, 1863, carried on business a corn merchant, at East Dereham, in the county Norfolk. The defendant is a farmer residing at astle Acre, in the same county.

2. The defendant, on the 3rd November, 1863, at le market at King's Lynn, entered into a verbal conact with the bankrupt to sell him 48 quarters of irley, at 35s. per quarter; as stated in the annexed tamination of the defendant, before the Court of ankruptcy, the whole of which is to be taken as rming part of this case; the price amounting to 17s. 6d. There was no written contract, and no yment on account. The sale was by sample, and e bulk was taken on the 7th November, by the dendant, in his own waggons, to the goods shed of the waffham Railway Station, and left on the platform here, with a delivery note in his own handwriting, in he words following:-"Great Eastern Railway.-To he Station Master, Swaffham Station. Nov. 3, 1863. Receive 97 coombs of barley, consigned to the order f Mr. Willden, of Dereham, from Thomas Moore (udson, Castle Acre, charges."

3. No receipt was given by the railway company for

e corn.

4. It is the custom of the trade for the buyer to mpare the sample with the bulk, as delivered, and if e examination is not satisfactory, to "strike it" (i. e. fuse to accept it), and allow it to remain as the prorty of the vendor; and notwithstanding the delivery the bulk by the defendant at the Swaffham station, was in the power of the bankrupt to strike the corn it had not proved according to sample, on examinan by him, or on his behalf.

5. On the 9th November the bankrupt was adjudited a bankrupt on his own petition, filed on that

y.

6. No portion of the corn was paid for. On the th November the defendant gave a verbal notice the station master at Swaffham not to deliver the n into the possession of the bankrupt or his asees, or any other person, without his (Hudson's) ritten consent, but to deliver the same to him or his der; and subsequently, on the same day, gave a ritten notice to the station master to the same efct. The station master promised the defendant that > one should remove the corn without his instruc

pany in respect of the corn. It was the custom of the company to charge demurrage on corn or other goods left at the station for upwards of five days, but not for any shorter period.

9. On the 1st December the plaintiffs were duly appointed assignees of the bankrupt, and on the same day they gave notice to the railway company that they claimed all the corn which had been left by various persons to the order of the bankrupt at the different stations of the railway.

10. The railway company, on being indemnified by the defendant, delivered the 484 quarters of barley to him on the 5th December, 1863.

11. The plaintiffs, as such assignees, contend that there was a perfect delivery of the barley to the bankrupt; and that the transitus was at an end, and that the property in the corn passed to them as such assignees.

12. They also claim to be entitled to the corn, as being, under the circumstances above stated, in the order and disposition of the bankrupt at the time of his bankruptcy.

13. The defendant contests the above claim altogether.

14. The question for the opinion of the Court is, whether the plaintiffs, under the circumstances above stated, were entitled to the barley.

15. If the Court shall be of that opinion, then the sum of 80%., the value of the barley, is to be paid by the defendant, together with the costs of this action.

16. If the Court shall be of opinion that the plaintiffs were not entitled to the barley, then the plaintiffs are to pay to the defendant the costs of this action.

The examination of the defendant was as follows:"I sold to the bankrupt 484 quarters of barley on the 3rd November, 1863. The sale was at Lynn; the price 35s. per quarter. I undertook to deliver the barley at the Swaffham station at my own expense; when I say I undertook, I mean it was usual for me to do so. I had several prior dealings with the bankrupt, in which I delivered the corn to the order of the bankrupt at Swaffham station. The delivery note was in writing. I have not the delivery note. I sent this corn in my own waggon to the Swaffham station on the 7th November, 1863, with the delivery note in my own handwriting. Having heard that Mr. Willden had become bankrupt, I verbally, and also by writing, gave notice to the station master at Swaffham not to deliver the corn, and claimed to have it returned to me, and it was given up to me on the 5th December, 1863, on my undertaking to indemnify the railway company. I believe it was the bankrupt's practice to have corn which he purchased sent to his order at the railway station, and to forward such corn from the station to the person for whom he purchased. The bankrupt had no warehouse in which he could store it. The value of the corn which I received back from the railway company was about 2s. per quarter less when I received it back than when I sold it."

Mellish, Q. C. (Metcalfe with him), for the plaintiffs. The plaintiffs are entitled to judgment. The goods were delivered by the defendant to the railway company, not in their capacity as carriers, but as warehousemen of the vendee; the delivery was, therefore, perfect, and the defendants' right of stoppage in transitu was at an end. Secondly, there was a sufficient acceptance of the goods, either by the bankrupt or by his assignee, to satisfy sect. 17 of the Statute of Frauds. Acceptance and receipt are necessary under the statute only as furnishing evidence of a previous contract; or in other words, proof of the acceptance is equivalent to proof of the contract. [Blackburn, J.— The goods were delivered at the railway station on the 9th November, the defendant became bankrupt

on the 11th, but neither before nor since his bankruptcy did he take any steps respecting them. To make the acceptance complete, should there not have been some act on his part from which acceptance could be inferred?] The mere fact that the defendant took no steps in the matter, from the time of the delivery of the goods up to the 11th November, when the defendant countermanded his previous direction, a period of four days, is of itself evidence that he had accepted the goods; and the statute is satisfied. (Bailey v. Sweeting, 9 C. B., N. S., 843; S. C., 30 L. J., C. P., 150). Taylor v. Wakefield (6 El. & Bl. 165; S. C., 2 Jur., N. S., 1086) may be relied upon by the other side, but is distinguishable. There the Court held, there could be no acceptance and receipt under the statute, inasmuch as there had been no delivery to the plaintiff, the goods being already in his hands as bailee. [Blackburn, J.-In Meredith v. Meigh (2 El. & Bl. 364; S. C., 17 Jur. 649) the vendor shipped the goods and signed a bill of lading, making the goods deliverable to the vendee's agent, and that was held sufficient to support an action for goods sold and delivered, but not to amount to acceptance by the defendants, who, beyond giving a verbal order for the goods, did nothing either in affirmance or disaffirm ance of the contract. Cusack v. Robinson (1 B. & S. 299; S. C., 7 Jur., N. S., 542) shews that acceptance before delivery will suffice; but that was the sale of specific goods, which the defendant had inspected at the time of the contract.] The cases upon the point are all collected in Morton v. Tibbett (15 Q. B. 428; S. C., 14 Jur. 669), where the vendee resold the goods without ever having seen them. [He also cited Bushel v. Wheeler, reported in the note to Morton v. Tibbett.] Gray, Q. C. (J. Browne with him), for the defendant. -[Cockburn, C. J.-Where a vendor has delivered goods under circumstances like the present, can his right to stop them in transitu be insisted on?] It may be conceded on the part of the defendant that this ground fails; the point, therefore, will not be argued. Secondly, there is no act of the bankrupt with respect to these goods which can be taken as indicating acceptance. He neither examined the goods, or took any steps respecting them, although they were lying, to his knowledge, at the station for a space of four days; and Hunt v. Hecht (8 Exch. 814) distinctly shews that there can be no acceptance and actual receipt of goods within the statute, unless the vendor has had an opportunity of judging whether the goods correspond with the order. [They also cited Godts v. Rose (27 C. B. 229; S. C., I Jur., N. S., 1173) and Norman v. Phillips (14 M. & W. 277; S. C., 9 Jur. 832).] [Cockburn, C. J.-In delivering judgment in Morton v. Tibbett, Lord Campbell, C. J., says "There are express decisions, through a long course of years, that there may be an acceptance and receipt of goods by a purchaser, within the Statute of Frauds, although he has had no opportunity of examining them, and although he has done nothing to preclude himself from objecting that they do not correspond with the contract." This is inconsistent with the doctrine in Hunt v. Hecht.] In Nicholson v. Bower (1 El. & El. 172), wheat sold by the defendant was sent to a railway station, consigned to the vendee, who sent for a bulk sample, and afterwards became bankrupt; and the Court held that this of itself did not amount to an acceptance. Bailey v. Sweeting is distinguishable; there the vendee was the party to make the acknowledgment, and did so; but here the railway company had no authority to bind the vendee by acceptance. In that case, in the course of the argument (as reported in the Law Journal), Willes, J., says of Taylor v. Wakefield, "There had been no acceptance with the assent of the vendor, and therefore the case falls within the

list of cases in which there had been no acceptance. Here the assent of the vendor was withdrawn befor the bankrupt had done anything from which accep tance could be inferred; there was, therefore, no pas ing of the property. Next, the goods were not in th "order or disposition" of the bankrupt, within the meaning of sect. 125 of the 12 & 13 Vict. c. I (Bankrupt-law Consolidation Act, 1849). They wer lying at the railway station, uncared for by the bank rupt, who did nothing to reduce them to possession. [Blackburn, J.-Might not the goods in some sense be said to have been in the disposition of the bankrup They were lying at the railway station from the time of the delivering up to the bankrupt awaiting s pleasure.] In Gibson v. Brag (Holt's N. P. 561 Gibbs, C. J., was of opinion that goods sent to a trader upon the terms of "sale or return," passed to his a signees under the old Bankrupt Act (21 Jac. 1, c. 19 but this ruling was reversed by the Court in banci Taunt. 76). At all events, there was no reputation of ownership. No one but the station master knew that the bankrupt's name had ever been so much mentioned in conjunction with the goods; and, as ha been already argued, there never was any acceptance, and therefore no binding contract. In Meredik v Meigh, the goods were lost during the voyage, and the loss was held to be that of the vendor. In Hav Bush (El., Bl., & El. 494; S. C., 4 Jur., N. S., GE) goods were verbally ordered by the defendant to be sent by sea from a certain wharf; the ship and goods perished at sea; and the Court held that the goods, though delivered at the wharf in pursuance of the vendee's orders, were not, therefore, accepted by him. Moreover, it is necessary, in questions of this nature, that the goods should be in the order and disation &c. of the bankrupt as reputed owner, with the onesent of the true owner; and this ingredient is here entirely wanting. Assuming that the defendant in tended to place the goods in the order and disposition of the bankrupt, it is manifest that he was to hold them as purchaser, i. e. as the real, and not the re puted, owner. (Load v. Green (15 M. & W. 210 There it was held, that goods fraudulently obtained by a person who afterwards became bankrupt, were not in his order and disposition with the consent of true owner. [He also cited Wilkins v. Bromhead Mac. & G. 963; S. C., 8 Jur., N. S., 83) and Jog Campbell (1 Sch. & L. 336).]

Mellish, in reply, cited Scott v. Pettit (3 B. & P. 45 and Ellis v. Hunt (3 T. R. 464). [Blackburn, J., ferred to Van Casteel v. Booker (2 Exch. 691) Gibson v. Carruthers (8 M. & W. 321).]

COCKBURN, C. J.-The case has been argued on bot sides with great ability; and, in my opinion, the fendant is entitled to judgment. Several question have been presented to our notice; amongst othe whether, under the circumstances, the defendant entitled to stop the goods in transitu; and this pat the defendant very properly gave up during the ang ment; it being clear that the transitus had cease The goods were in the custody of the railway pany, not as carriers, but as warehousemen; they therefore, as between the parties to the contract, rived at their destination, and the delivery was plete. We have next to deal with the point, wheth at the time the defendant demanded possession of goods, the property was in him, so as to give him right of possession: this depends upon whether thing had been done to satisfy the requirements sect. 17 of the Statute of Frauds; and this branch the case resolves itself into two questions. First, goods in question being delivered by the defendant pursuance of the contract between himself and bankrupt, to the railway company, and by them

ceived and accepted, does that amount to a receipt and acceptance on the part of the bankrupt so as to satisfy the statute? and in my opinion it does not. The cases of Hart v. Bush and Hunt v. Heckt conclusively shew that the delivery to, and acceptance by, the railway, of the goods, did not amount to receipt and acceptance by the buyer himself. In the first of these cases goods had been delivered, in pursuance of an arrangement between the buyer and seller, at a certain wharf, whence they were to be shipped to their final place of destination, which was the defendant's place of business; the ship was wrecked and the goods lost; and the Court held that there was no acceptance and receipt of the goods by the defendant to satisfy the statute. The case of Hunt v. Heckt goes still further, and appears to me to have been rightly decided, and to be binding upon us. There it was held that the buyer having a right to inspect the articles, the subject of the contract, in order to ascertain whether they were in conformity with the terms of the contract-there was no receipt and acceptance within the meaning of the statute until he had had an opportunity of inspection and had exercised it; and the case further shews that a mere receipt is not of itself sufficient to satisfy the statute, unless attended animo accipiendi. Then the other point arising on this branch of the case is this-were the assignees of the bankrupt entitled, for the purpose of acceptance, to place themselves in the position of the bankrupt, and, by their ratification of the contract, to take the case out of the statute? I assume they would have a right, in that character, of perfecting any right or interest of the bankrupt inchoate at the time of the bankruptcy; but the question is, was the bankrupt, at the time of his bankruptcy, in a position to claim the goods in question? The seller, hearing in the meantime of his customer's bankruptcy, had asserted his right to the goods in the hands of the railway company; and there had at that time been, as I have already shewn, no acceptance by the buyer; with out acceptance there can be no passing of the property, and, as a necessary consequence, no valid contract. Lastly, we have to deal with the question, whether the goods can be considered as having been in the order and disposition of the bankrupt? Upon this point Load v. Green is decisive, and I entirely concur with the propriety of that decision. The Bankruptcy Act requires that goods shall be in the order or disposition of the bankrupt, as reputed owner, with the consent of the true owner; and the elements necessary to bring the present case within the meaning of that statute seem to me entirely wanting, inasmuch as it was manifestly the object of the seller to put the bankrupt in possession of the goods, not as the reputed, but as the real, owner. Therefore, upon this ground also the plaintiff's case must be taken to fail.

BLACKBURN, J.-I am of the same opinion. The case does not depend upon the question as to the right of stoppage in transitu, but mainly upon whether or no what took place has the effect of satisfying the Statute of Frauds. To bind the parties there must be a receipt and acceptance of the goods, the subject of the contract; but where goods, in pursuance of a contract, are delivered to a carrier, though he may be the agent of the buyer for the purpose of receiving, he is not, in the absence of authority to that effect, empowered to accept the goods on his behalf. In the present case, however, this question does not arise; the goods were delivered by the defendant at the railway station on the 7th November, and are suffered to remain there without any step being taken with respect to them by the bankrupt up to the 9th, on which day the bankruptcy occurred. Now, doubt

less Morton v. Tibbett shews, that where a vendee does not avail himself of his right to examine the goods purchased, in such case the lapse of time furnishes evidence of acceptance; but in the present case, considering the shortness of the time, and the fact that the purchaser was on the eve of bankruptcy, I think it would be going too far to draw the inference that an acceptance of the goods by the bankrupt took place some time between the 7th and the 9th November. There being, then, no acceptance of the goods up to that date, it follows that the contract was incomplete, and that the property did not pass; and under these circumstances, Meredith v. Meigh shews, that if the goods have been in the meantime destroyed, the loss would have been the loss of the vendor. The goods, then, being the property of the vendor on the 9th, he on the 11th gives notice to the railway company not to deliver them to the bankrupt without his (the vendor's) written consent; and with this notice the company had, as it appears to me, no choice but to comply. Could there, then, have been any subsequent acceptance of the goods by the bankrupt, or any one representing him, without the consent of the defendant? Clearly, I think not. Bailey v. Sweeting does not affect the present case, there having been no acceptance of the goods; and the goods, inasmuch as there was nothing to bind the contract, remained the property of the defendant. Then as to the question, were the goods in the order and disposition of the bankrupt, as reputed owner, I am of opinion that Load v. Green was rightly decided, and is conclusive upon this point. Where the true owner consents to the custody of property by another, as reputed owner, that is within the statute; but here such was not the case, the defendant simply intending that the bankrupt should become possessed of them, not as reputed, but as the true owner. On this ground, also, I think the defendant is entitled to our judgment.

MELLOR, J.-This was a sale by sample of goods over the value of 107. [His Lordship read sect. 17 of the Statute of Frauds.] Now, here the goods, the subject of the contract, were sent to the railway station by arrangement and order of the buyer. In order, however, to bind the contract under the statute, there must be an acceptance, at all events, of part of the goods, but so far from this having taken place, the bankrupt took no steps in the matter; he does not so much as go to the station to inquire about them. Subsequently the vendor communicates with the company, and countermands the directions he had previously given respecting the destination of the goods; and there having been, as I have already stated, no previous acceptance, it follows that there was no passing of the property. I also agree with the rest of the Court, that the goods were never in the order and disposition of the bankrupt.

SHEE, J., concurred.-Judgment for the defendant.