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1806. whereby the said writing obligatory in the said first and U0KH second counts of the said declaration mentioned and veraa now brought here into court by force of the statute in Ichon. sncn case ma(je ano> provided, are void in law. And the defendants also pleaded that the said writing obligatory in the said second count of the said declaration mentioned, with the condition thereunder written was sealed and delivered, and made and given after passing a certain act of parliament made in the 17th year of the reign of his present majesty, entitled " An act for registering the grants of life annuities, and for the better protection of infants against such grants" to wit on the 20th of March 1801. That no memorial of the said writing obligatory, and of the said condition thereunder written, was within 20 days of the execution, thereof enrolled in the high court of chancery, as required by the said act of parliament, by reason whereof-the said writing obligatory in the said 2d count of the said declaration mentioned is null and void.

The plaintiff replied, demurring generally to the last plea and tendering issues, upon the other special pleas of usury.

Burbotjgh for the plaintiff, cited Crespigny v. Wit. tenoom* and Leais v. Hutton,f to shew that this could not be within the annuity act. Lord Kenyon there says, if the proviso did not except annuities which were not for a consideration in money, yet the construction would be the same ; for the first clause does not extend to every case of every sort, but only to those cases mentioned thereafter; viz. to annuities for money. Jn order to avoid the bond, the defendant ought to state not merely that it is void by the statute, but that it is void for the particular reasons stnted in the statute, and so being it is precisely within the statute 17 Geo. III. c. .— , ——

* 4 Term Rep. 790. + 5 Term licp. 639.

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S6. He cited also ihe Duke of Cumberland v. Praed,* J803. Whelpdah's case.* .

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Ljttledale contra ; it is not necessary to aver in the Jacisok. plea more than is done in this case. In Crespigny v. Wittenoom, the act is pleaded generally,and this is matter of construction, which arises from the whole of the^tatute, and in that case Lord Kenyon considered it as a construction taken from the whole of the act, therefore, if it does not fall within the operation of the act, the 'plaintiff'ought to reply, that,"

Lord Ellenborough, C.J." The very spirit of the act in the first section applies merely to an annuity to be granted and sold for money. Lord Kenyon was so dear on the construction, that he thought the last clause should not extend to any voluntary annuity granted without a money consideration, was absolutely unnecessary. And here it does not come in by way of proviso, it is a positive enactment, and you blend altogether so as to elicit from the whole one plain sense of the act."

Littledale. "So in the statute of wills and fines', where the act excepts persons insane and infants who would be excepted by ordinary construction of law, yet the proviso must be pleaded. Stowell v. Couch.^'

Lord Ellp.nborough, C.J. "That is, where the body of the act is general, and the proviso is particular. I do not know, that I am bound to stand upon the first section only for the construction; but, if I come to the second, 1 am certain; and, if 1 look at the third I am more certain; and if at the last, I wonder how they could make a proviso to exclude that which no person could ever have doubted upon.

Judgment for the Plaintiff.

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1806.

Hinde against Whitehouse.—June 19.

Sugars were sold by auction, by a broker according to a certain

Statutfoffrands catalogue, which did not contain the entire particulars or Auction. Sale a r

ofgood». Agree- conditions of sale; the conditions or very material parts of Bicnt' them, were written on a separate paper and read by the bro

ker at the sale, and laid by him on the desk with the catalogue, the catalogue was entitled only" a catalogue of sugars, to be sold 20th September, for particulars apply, SfC.;" tie conditions were entitled conditions of sugar sale, 20th September, but there were no direct words of reference to either in the one or the other, and they were not pinned together; at the time of the sale the broker's clerk wrote a memorandum of the name of the purchaser, {the defendant,) against the article sold with J he price and samples of about an halfpenny a pound each, were delivered, which were calculated on the weight of the commodity: Held that, although the broker must be considered as the agent of both parties, yet as the catalogue did not contain all the conditions of sale, and the conditions were chiefly on a separate paper, the memorandum was not a memorandum in writing, within the statute of frauds; but, by the delivery of the sample, the case was taken out of the statute, for, although a sample is thing delivered alio intuitiu, and not principally as a part perf ormance of the contract, yet, where it is a part of the commodity and taken in the weight or measure, it may also operate to comply with the terms of the exception in the statute. Sales by auction of goods are not to be considered as excepted, by the equity of the statute of frauds.

Hindi rJ*HEp/aintiJr declared on a contract, that being possessed of certain sugars, he caused the same to

fTBITtBOUSE. . ...

be put up to auction, upon certain conditions as follows : the highest bidder to be the purchaser, and, in cast of dispute, the lot to be put up again. The sugars to betaken with all faults and defects, as they now are at the king's weights and tares, with the allowance of drafts, or reweighed giving up the draft. To be at the Ists. purchaser's risk from the time of the sale, and to be „ positively removed within two months, or rent to be vmus paid for any longer time they may remain. Payment w »"tB0,,s*lo be made on delivering of invoices, by approved bills on London to the satisfaction of sellers, not exceeding three months date; not to advance less than three pence per cut. at each bidding. That the defendant purchased twenty-seven hogsheads of sugar at 75s. per act. at the king's weights and tares, with the allowance of draft, and in consideration of ihe premises, the defendant undertook to buy, and the plaintiff to deliver, stating the mutual promises. 'The plaintiff then averred, that the same was delivered afterwards, to wit, on the 23d September, whereupon the defendants became Kable to pay.

At the trial, before Rooke, J. at Lancaster, the principal question was, whether the plaintiff or defendant was to bear the loss of certain hogsheads of sugar, which were sold by auction to the defendant on the 20th of September, 1S05, and were burned on the 22d of the same month, by an accidental fire in orie of the king's warehouses, at Liverpool, where they were deposited under the lock and key of the plaintiff? The de~ fendant bought at the sale twenty-seven hogsheads at 74s. per czct. he being the highest bidder. There was a memorandum made on the catalogue against the articles therein, by the clerk to the broker, viz. Gale and Whitehouse purchasers. When the sale was over, the broker's clerks gave the samples to the warehouseman. Sill who was the broker employed, gave' evidence as follows : " I was employed to sell ; the conditions were in writing, and entitled conditions of sugar sale, September ^Oth 1803. They stated that the sugars were to be taken with all faults and defects, as they now are; that they were to be taken with, the

NO. XXXV. N.S. 8 V

1806. king's weights and tares, or reweighed and this further hinde condition which he read from a written paper.

WnirtHsuii. "These sugars gentlemen have been drawn in the warehouse, within the last two days, as such, no allowance whatever will be made, except where an evident error is manifest. The duties are not yet paid but we intend paying them to-morrow."'

The purchaser said nothing at the time; the invoice was made out on the Saturday ; the defendant after the fire, gave me instructions to take care of the sugars, and save what I could. If the sugars are to be reweighed it is usual for the buyer to declare so, before he leavesthe room; the 21 st of Sept. was Saturday St. Matthctr,which was kept as a holiday at the custom house; and Sunday the 23d, being also a holiday kept on the Monday, the duties could not be paid till the«4th. The sale ended at a quarter past 4 o'clock. The custom house hours were only till two ; so that there was not lime, after the sale, to pay the duties on that day." The jury thought there was no neglect on the part of the plaintiff', as tothe payment of the duties. SHI gave evidence also as follows;" the memorandum of the sale was on the catalogue: the conditions of sale were on a separate paper, which was laid on the desk with the catalogue, after being read. The samples were about half a pound each, and are usually delivered to the purchaser as part of the purchase. These samples were delivered immediately, before the parties left the room, and the purchasers always require to have them as part of the quantity. . Out of'27 hogsheads it amounts to 14lbs. 1 gave the samples to be delivered to the warehouseman, to make up the quantity and they were carried to the defendant, the day of the sale; the invoice was sent on the Monday following." He also proved that it is very usual for a purchaser to sell at an advanced rate, before he leaves the room; and he believed that the . defendant

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