1806. HINDE versus rest on the quantum of evidence, and the probability of perjury in every case whatsoever; and you must mix in the consideration of the law as fixed by the statute, WHITEHOUSE all the variety of circumstances attending the sale. It must render the provisions of the statute liable to be dispensed with, in a variety of circumstances, and I am not at all prepared to say, that sales by auction, merely as such, are not within the statute. Then is this paper made by the agent for both parties? In respect to sales of goods, it has been uniformly so held, ever since Simon v. Motivos, and it would be dangerous to break in upon a rule which operates in all cases where brokers are employed by the seller, and where a sale note has been held, a sufficient contract under the statute of frauds. All the great transaction of sale in the city of London are conducted iu that way, and it is too late to draw this doctrine into question now. Then, supposing that the auctioneer or broker for the seller is the agent for both parties, the question is, has he made a proper memorandum of the agreement in writing, within the terms of the statute? It appears that he has not. This memorandum is not annexed to the conditions of sale and has no reference to it; it is a mere memorandum of the purchaser. In order to make it the memorandum of the agreement, we must intend it to be sold for the price mentioned. without regard to the conditions of sale, which is contrary to the fact, and those conditions are capable of being given in evidence as part of the transaction of sale, though they cannot be given in evidence as the contract itself; that is, as part of the memorandum of the agreement. Then as to the other question, whether there has not been a part delivery, in as much as by the delivery of the samples, consisting of about 14lb. weight, the defendant has received a part of the commodity sold. This is so far treated as a part of the bulk, that it is considered in the weighing as part of the bulk weighed out to the party; and I consider it as part of the goods sold under the terms of sale, and accepted by the buy er, though delivered alio intuitu as a sample, which does not prevent it from operating in the other way as a part delivery of the thing itself. And as the thing itself was become incapable of delivery by the nonpayment of the duties, the sale, in the meaning of the parties, was complete when the samples were delivered. Then the condition that the goods from the time of the sale, shall be at the risk of the purchasers. attaches, notwithstanding the immediate rights of lien, or custody was in the crown, for the non-payment of duties. In Salkeld, 113, it is said, "after earnest given, the vender cannot sell, without default of the vendee ;" and in Noy's Maxims, p. 88. "If I sell my horse for money, I may keep him till I am paid; but I cannot have an action of debt until he be delivered, yet the property of the horse is in the bargainor or buyer." Upon this latter ground there is, therefore, no pretence to think the sale incomplete, and it is clear, that, by the delivery of part, the contract of sale is valid as far as respects the statute. As to Simon v. Motivos, that case is not now impeached, nor is any further authority attached to it. The practice of sale notes too is a practice on which all the commerce of the country depends; but they contain they full contract On the point that an auction is itself a mode of sale, excepted out of the statute, it is not necessary to say more than that there is no necessity of deciding that point upon the present occasion, that I see no reason to except it, and that it is not excepted out of the statute by express words. It is not necessary to say whether the case of Simon v. Motivos is right or wrong, Here the sample was delivered to the defendant, as part of the thing; but I do not question, that an auc tioneer is the agent of both parties. 1826. HINDE versus WHITEHOUSE. 1806. HINDE versus WHITEHOUSE. GROSE J. observed that the true name of the case we sSimon v. Metivier, and, that he recollected, that it was doubted at the time by some persons at the bar. LE BLANC, J. "There is one clear mode of taking it out of the statute, by the delivery of the goods. I think it leaves Simon v. Metivier just where it found it." RULE DISCHARGED. Trespass. versus FIELD. HODGSON against FIELD. Grant to one his heirs and assigns, in consideration of a sum of money, of a liberty for him, his heirs and assigns, to carry up a sough (or a drain for a colliery) from the bottom of a piece of land of the grantor to an adjoining piece of land of the grantee, and also liberty for him, his heirs and assigns, to make two little sough pits in the said land of the grantor, in a certain place there, for the more easy and safe carrying up the tail of the sough, one of them to be covered from the top of the intended sough to the surface of the ground, as soon as conveniently may be done, after the making thereof, and the other to be kept open for examining the sough as long as is necessary for that purpose and no longer; held, that the grant of the sough is a continuing grant, and the right of opening the sough pit, occasionally, for the necessary repair of the sough, is incident thereto by virtue of the grant. HODGSON THE plaintiff declared against the defendant, in trespass for breaking his close at Heaton in the county of York, and also for that he then and there dug and made a certain pit of the depth of 50 feet,, &c. and then and there opened and uncovered a certain sough or drain in the said close, and kept and continued the said pit, or hole so dug and made as aforesaid, and the said sough or drain so opened and uncovered for a long space of time, &c. Pleas, 1st, not guilty; 2dly, that the said close in which, &c. now is and at the said times when, &c. and also at the time next hereinafter mentioned, was a certain piece of woody ground, situate and being in Heaton aforesaid, in the said county of York, abutting towards the north, upon a certain brook there,and upon another part thereof contiguous and next adjoining to the parcel of woody ground situate and being in Heaton aforesaid, and at the time of the making of the indenture next hereinafter set forth mentioned, as at the time of making that indenture, being in the possession of Jasper Pickard; and the said defendant further says, that long before the said several times, when, &c. and before the said plaintiff had any thing in the said close in which, &c. to wit, on the 13th day of July, 1747, one Robert Stansfield was seised in his demesne as of fee of and in the said close in which, &c. and one Jeremy Marshall was also, at the same time, seised in his demesne as of fee aforesaid, of and in the said parcel of woody ground adjoining thereto, and also of divers, to wit, 35 acres of land situate and being in Heaton aforesaid, and adjoining to the said parcel of woody ground, and that within and under the same parcel of woody ground, and the said other lands of the said Jeremy Marshall, there then were divers veins and seams of coal which the said Jeremy Marshall was then, to wit, at Heaton aforesaid, desirous of winning, and of digging, getting and rais ing the coal therefrom, and of having the use and benefit of a sough, for himself his heirs and assigns to be made and carried up as hereinafter is mentioned, for the purpose of draining the mines and works within and under the same, and thereby enabling him and them the better and more conveniently to dig, get, and raise the said coal, and the said Jeremy Marshall then and there applied to the said Robert Stansfield to grant unto him his heirs and assigns for the purpose aforesaid, the liberties and privileges mentioned in the indenture next herein-after set forth,whereof the said Ro 1806. HODGSON versus FIELD. 1806, HODGSON versus FIELD. bert Stansfield then and there had notice; and thereupon the said Robert Stansfield and Jeremy Marshall being so respectively seised as aforesaid, and the said Jeremy Marshall being so desirous as aforesaid, afterwards and before any of the said times when, &c. and also before the saidplaintiff had any thing in the said close in which, &c. to wit, on the day and year last aforesaid, at Heaton aforesaid, by a certain indenture then and there made between the said Robert Stansfield of the one part, and the said Jeremy Marshall of the other part, and sealed with the seal of the said Robert Stansfield, (but since lost by time and accident, so that the said defendant cannot bring the same into court here) the said Robert Stansfield did for the considerations therein mentioned, give and grant unto the said Jeremy Marshall his heirs and assigns full and free liberty for him the said Jeremy Marshall, his heirs and assigns, and his and their agents and workmen, to carry up a sough from the bottom or edge of the hill near the brook, in the said close, in which, &c. in the said indenture called a parcel of woody ground in Heaton aforesaid, in the said county then being the estate of the said Robert Stansfield, and then in the possession of one Peter Atkinson, into the said parcel of woody ground of the said Jeremy Marshall in Heaton afore. said, in the possession of Jasper Pickard, which said two several parcels of woody ground are in the said indenture mentioned to adjoin upon and lie contiguous to one another; and also full and free liberty for him the said Jeremy Marshall, his heirs and assigns, and his and their agents and workmen to make two little sough pits in the said parcel of woody ground of him the said Robert Stansfield near the edge of the hill or brook there, for the more easy and safe carrying up the tail of the said sough; one of the said sough pits to be covered from the top of the said intended sough to |