it does not appear that the vessel was liable to forfeiture. It is merely stated that the vessel was found hovering with certain goods on board. But a vessel may be hovering, and still not be liable to *forfeiture. It would be put

*34] ting too narrow a construction on the act to confine the application of the words "not proceeding on her voyage" to those vessels which have been within a certain distance of the coast; for if that were so, vessels hovering for a pilot, or for any other innocent purpose, might be subjected to forfeiture. The hovering contemplated by the legislature is, hovering with power to proceed, and without any sufficient cause for not doing so. The conviction is bad upon another ground also, viz., that the party is not described as a British subject. If he were not so, the thing charged against him would not constitute an offence within the 45 G. 3, c. 121, s. 7, or render him liable to punishment. Every thing necessary to show that an offence has been committed must be stated in a conviction; the allegation of his being a British subject was, therefore, essential to the description of the offence, and that must be correctly stated, notwithstanding the general form given by the 3 G. 4, c. 110. The prisoner must, therefore, be discharged. Prisoner discharged. (a)

a) Bayley, J., had left the court.

In the Matter of STEAVENSON and Others.

The annual indemnity act is prospective as well as retrospective, and extends to those who may be in default during the time for which it is made, and is not limited to those who had incurred penalties or disabilities before it passed.

SCARLETT moved for a quo warranto information against the mayor and four bailiffs of Berwick. These officers were elected on the 29th of September in the last year; and were on the same day sworn and admitted into their *35] respective offices. They all neglected to receive the sacrament, and take the oath of allegiance, &c., within six months, as required by the 25 Car. 2, c. 21; 16 G. 2, c. 30; 1 G. 1, st. 2, c. 13, and 9 G. 2, c. 26. It will be urged that they are protected by the last annual indemnity act. (a) But that act passed on

(a) The 4 G. 4, c. 1, intituled " An act to indemnify such persons in the United Kingdom as have omitted to qualify themselves for offices, employments, and for extending the time limited for those purposes respectively until the 25th day of March, 1824." The preamble recites that divers persons required to take certain oaths, and do certain other acts by certain statutes therein recited, have," through ignorance of the law, absence, or some unavoidable accident, omitted to take and subscribe the said oaths, &c., within such time and in such manner as in and by the said acts respectively, or by any other act of parliament in that behalf made, is required, whereby they have incurred, or may be in danger of incurring, divers penalties and disabilities;" and then it proceeds to enact, that all and every person and persons who, at or before the passing of this act, hath or shall have omitted to take and subscribe the said oaths, &c., within such time, and in such manner as in and by the said acts or any of them, or by any other act of parliament in that behalf made, is required, and who, after accepting any such of fice, &c., before the passing of this act, hath or have taken and subscribed the said oaths, &c., or who on or before the 25th day of March, 1824, shall take and subscribe the said oaths, &c., shall be and are hereby indemnified, freed, and discharged from and against all penalties and disabilities incurred, or to be incurred, for or by reason of any neglect or omission, previous to the passing of this act, of taking or subscribing the said oaths or assurance, or receiving the sacrament, or making or subscribing the said declaration, or taking or subscribing the said oath according to the above mentioned acts or any of them, or any other act or acts; and such person or persons is and are, and shall be fully and actually recapacitated and restored to the same state and condition as he, she, or they were in before such neglect or omission, and shall be deemed and adjudged to have duly qualified him, her, or themselves, according to the above-mentioned acts and every of them; and that all elections of, and acts done or to be done by any such person or persons, or by authority derived from him, her or them, are and shall be of the same force and validity, as the same or any of them would have been, if such person or persons respectively had taken the said oaths or assurance, and received the sacrament of the Lord's supper, and made and subscribed the said declarations, and taken and subscribed the said oath according to the directions of the said acts and every or any of them; and that the qualification of such person or persons qualifying themselves in manner and within the time appointed by this act, shall le to all intents and purposes as effectual as if such person or persons had respectively taken the said oaths and assurance, and received the sacrament, and made and subscribed the said declaration, and taken and subscribed the said oath within the time and in the manner appointed by the several acts before mentioned."

VOL. IX.

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the 27th of February last, and only applies to those who "at or before [*36 the passing of the act," had incurred penalties or disabilities. These persons being elected on the 29th of September, had not incurred any penalty or disability when the indemnity act passed, and cannot therefore be protected by it.

Campbell showed cause in the first instance. The object of the indemnity act was to enlarge the time before allowed for receiving the sacrament, taking the oath, &c., required of persons accepting certain offices and employments. The preamble of the statute certainly appears to be limited to such persons as had made default before the act passed, but is capable of receiving a larger construction. The title is material, to show a different intention in the legislature : that is, "An act to indemnify such persons in the United Kingdom as have omitted to qualify themselves for offices and employments, and for extending the time limited for those purposes respectively." The enacting part too extends to all those who, at or before the passing of the act, have or shall have omitted, &c. That certainly is future as well as past, and must extend to all that are in default before the 25th of March, 1824.

*Per Curiam. There may perhaps be some obscurity in the words [*37 of this statute, but there is none in its title. It was manifestly the intention of the legislature to extend the time for taking the oaths and performing the other acts required of persons filling certain offices; and this being a remedial statute, we should so construe it as to give full effect to that intention.

Rule refused.

BALDEY and Another v. PARKER.

A. went to the shop of B. and Co., linen-drapers, and contracted for the purchase of various articles, each of which was under the value of 107., but the whole amounted to 701. 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: Held, first, that this was all one contract, and therefore within 29 Car. 2, c. 3, s. 17. Secondly, that there was no delivery and acceptance of any of the goods so as to take the case out of the operation of that section.

ASSUMPSIT for goods sold and delivered. Plea, general issue. At the trial before ABBOTT, C. J., at the London sittings after Trinity term, 1822, the following appeared to be the facts of the case. The plaintiffs are linen-drapers, and the defendant came to their shop and bargained for various articles. A separate price was agreed upon for each, and no one article was of the value of 107. Some were measured in his presence, some he marked with a pencil others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and sent by a shopman. The amount of the goods was 701. The defendant looked at the account, and asked what discount would be allowed for ready money, and was told 57. per cent.; he replied that it was too little, and requested to see the person of whom he bought the goods, (Baldey) as he could bargain with him respecting the discount, and said that [*38 he ought to be allowed 201. per cent. The goods were afterwards sent to the defendant's house, and he refused to accept them. The lord chief justice thought that this was a contract for goods of more than the value of 107. within the meaning of the seventeenth section of the statute of frauds, and not within any of the exceptions there mentioned, and directed a nonsuit; but gave the plaintiffs leave to move to enter a verdict in their favour for 701. A rule having accordingly been obtained for that purpose,

Scarlett and E. Lawes now showed cause. It is quite clear that this was an entire contract for the whole of the goods. Suppose after the bargain for them all was made, the plaintiffs had refused to let the defendant have some one par

ticular article, they could not have compelled him to take the residue; or if one of the articles when sent home differed from that bargained for, the purchaser might have rejected the whole, for no jury would ever have found that there were separate contracts, and have compelled him to take that part which corresponded with the order. Then as to the supposed acceptance, the plaintiffs always retained their lien for the price; the defendant had no right to take away the goods without paying for them, nor could he have maintained trover without tendering the price. There was not then any such change of possession as contemplated by the statute.

Denman and Platt, contrà. The plaintiffs are entitled to a verdict on both grounds. For there was a separate and distinct bargain for each article; and even if that were not so, the defendant accepted the goods, so as to take *39] the case out of the statute of frauds. Whether the contracts were several or not, cannot depend upon the time when the various articles were purchased, but upon what passed at the making of the bargain. Now it was distinctly proved that a separate price was fixed upon each article, and the purchase of each was complete before the parties went on to bargain for any others. If that be not so, it will be difficult to determine what space of time must elapse between the purchase of any two articles, in order to make the contract separate. In Emmerson v. Heelis, 2 Taunt. 38, it was held that the purchaser of several lots at an auction was to be considered as making a separate contract for each lot. Had the defendant left the shop for a few minutes between the purchase of each article, that certainly would have made them separate contracts, and there does not appear to be any substantial difference between such a case and the present. Then as to the second point, there was a complete delivery and acceptance within the meaning of the statute. There was a complete change in the state of the property. The defendant assisted in measuring the articles, and in severing them from the bulk; the price of each was fixed; so that nothing remained to be done before they were to be delivered to the defendant The change of property was therefore complete. Rugg v. Minett, 11 East, 210. Some the defendant actually marked with a pencil; and in Hodgson v. Le Bret, 1 Campb. 233, that was considered as an acceptance. So also was cutting off the *40] pegs in pipes of wine. *Anderson v. Scott, 1 Campb. 235, n. The policy of the statute of frauds was, that a mere verbal agreement should not bind; but it does not apply where any act has been done to show the approval of the contract. Chaplin v. Rogers, 1 East, 192; Elmore v. Stone, 1 Taunt. 458; Searle and Others v. Keeves, 2 Esp. 598. [HOLROYD, J. Hanson v. Armitage, 5 B. & A. 557, and Carter v. Toussaint, 5 B. & A. 855, are strong authorities against you.] In the former, the purchaser had not exercised any judgment on the article ordered, and in the latter the firing of the horse was the act of both parties, and not done to show an approval of the contract. Neither does Howe v. Palmer, 3 B. & A. 321, apply, for the goods were severed by the vendor alone. With respect to the vendor's right of lien, that has never been decided to be the criterion by which cases of this nature are to be judged of. Indeed lien imports that the property has passed. [HOLROYD, J. If the property has passed subject to a lien, is that a delivery and acceptance within the meaning of the statute?]

We are

ABBOTT, C. J. We have given our opinion upon more than one occasion, that the 29 Car. 2, c. 3 is a highly beneficial and remedial statute. therefore bound so to construe it as to further the object and intention of the legislature, which was the prevention of fraud. It appeared from the facts of this case, that the defendant went into the plaintiffs' shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were afterwards sent home to him. The first question is, whether this was one entire contract for the sale of all the goods. By holding that it was not, we should entirely defeat

41]

the object of the statute. For then persons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the statute by making a separate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be considered to have made one entire contract for the whole of the articles. The plaintiffs cannot maintain this action unless they can show that the case is within the exception of the 29 Car. 2, c. 3, s. 17. Now the words of that exception are peculiar, "except the buyer shall accept part of the goods so sold, and actually receive the same." It would be difficult to find words more distinctly denoting an actual transfer of the article from the seller, and an actual taking possession of it by the buyer. If we held that such a transfer and acceptance were complete in this case, it would seem to follow as a necessary consequence that the vendee might maintain trover without paying for the goods, and leave the vendor to this action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find that the law warrants us in saying that this transaction had no such effect.

BAYLEY, J. The buyer cannot be considered to have actually received the goods, when they have remained from first to last in the possession of the seller. The plaintiffs are not assisted by the exception in the seventeenth section of the statute of frauds. Then the question is, whether there was a separate contract for each article. The 29 Car. 2, c. 3, was passed to guard against [*42 frauds and perjuries; and it must be collected from the seventeenth section, that the legislature thought that a contract to the extent of 101. might be sufficient to induce the parties to it to bring tainted evidence into court. Now it is conceded here, that on the same day, and indeed at the same meeting, the defendant contracted with the plaintiffs for the purchase of goods to a much greater amount than 107. Had the entire value been set upon the whole goods together, there cannot be a doubt of its being a contract for a greater amount than 10l. within the seventeenth section of the statute; and I think that the circumstance of a separate price being fixed upon each article makes no such difference as will take the case out of the operation of that law. It has been asked, what interval of time must elapse between the purchase of different articles in order to make the contract separate, and the case has been put of a purchaser leaving a shop after making one purchase and returning after an interval of five or ten minutes, and making another. If the return to the shop were soon enough to warrant a supposition that the whole was intended to be one transaction, I should hold it one entire contract within the meaning of the statute. I am therefore of opinion that this rule must be discharged.

HOLROYD, J. I am of the same opinion. The intention of the statute was that certain requisites should be observed in all contracts for the sale of goods for the price of 101. 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 in[*43 tention of that statute that where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of 10l. 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 107. as if it had been originally of that amount. It must therefore be considered as one contract within the meaning of the act. With respect to the exception in the seventeenth section, it may perhaps have been the intention of the legis lature, to guard against mistake, where the parties mean honestly as well as against wilful fraud; and the things required to be done will have the effect of answering both those ends. The words are, "except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in

earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Each of those particulars either shows the bargain to be complete, or still further, that it has been actually in part performed. The change of possession does not in ordinary cases take place until the completion of the bargain: part payment also shows the completion of it; and in like manner a note or memorandum in writing signed by the parties plainly proves that they understood the terms upon which they were dealing, and meant finally to bind themselves by the contract therein stated. In the present case there is nothing to show that some further arrangement might not remain unsettled after the price *for *44] each article had been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of possession as that contemplated by the statute. Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession; and therefore as long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute.

BEST, J. It was formerly considered that a delivery of the goods by the seller was sufficient to take a case out of the seventeenth section of the statute of frauds; but it is now clearly settled, that there must be an acceptance by the buyer, as well as a delivery by the seller. The statute enacts, that where the bargain is for something to the value of 107. it shall not bind, unless something unequivocal has been done to show that the contract is complete. Nothing of that kind having been done in this case, if the dealing is to be considered as one entire transaction, it is clear that the plaintiffs cannot recover : whatever this might have been at the beginning, it was clearly at the close one bargain for the whole of the articles. The account was all made out together, and the conversation about discount was with reference to the whole account. It is therefore very distinguishable from Emmerson v. Heelis, where a complete bargain was made as to each article, as soon as the auctioneer had signed his name to it.

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*WHITELEGG v. RICHARDS. (a)

Rule discharged.

Declaration stated that the defendant, being the clerk of the court for the relief of insolvent debtors, wrongfully and maliciously intending to injure the plaintiff, and to cause one S. C., in custody at the suit of the plaintiff, to be discharged out of custody without paying plaintiff his damages and costs, wrongfully and unlawfully issued an order, purporting to be an order from that court, and purporting that the prisoner should be discharged from custody; whereas in truth and in fact, the Court did not pronounce any such order, nor give any authority to the defendant to issue the same, by reason whereof the prisoner was discharged from custody: Held, upon error, brought upon a judgment of C. P., given for defendant upon demurrer to the declaration, that it was not necessary to aver that the order had been set aside by the Court; for the order was to be considered the act of the officer, and not of the Court.

THIS was a writ of error, upon a judgment given in the Court of Common Pleas, on demurrer to a declaration. The substance of the pleadings is stated in the judgment delivered by the Court. The case was now argued by

Campbell, for the plaintiff in error. The substance of the complaint in the declaration is, that the defendant being an officer of the court for the relief of insolvent debtors, and maliciously intending to cause the debtor detained in custody at the suit of the plaintiff to be discharged, issued an order for his discharge, whereby the plaintiff lost all means of recovering his debt. The issuing of that order was a wrongful act by the defendant, and the plaintiff has sustained a temporal damage by losing the body of his debtor, which, accord(a) See the first count of the declaration set out at length in 3 Brod. & Bing. 188.