THE ACCEPTANCE AND RECEirT. 11 



" the Horses were his, but that as he had neither servant 

 nor stable the plaintiff must keep them at livery for him ;" 

 the plaintiif assented, and removed them out of the sale 

 stable into another. The defendant afterwards refused to 

 take them, and set up for his defence the 17th section of 

 the Statute of Frauds. It was there held that if a man 

 bargains for the purchase of goods, and desires the vendor, 

 to keep them in his possession for an especial purpose for 

 the vendee, and the vendor accepts the order, it is a suffi- 

 cient delivery of the goods within the Statute of Frauds, 

 and that it is no objection to a constructive delivery of 

 goods that it is made by words parcel of the parol contract 

 of sale ; and Chief Justice Mansfield said, " A common 

 case is that of a sale of goods at a wharf or a warehouse, 

 where the usual practice is to deliver the key of a ware- 

 house or a note to the wharfinger, who in consequence 

 makes a new entry of the goods in the name of the 

 vendee, although no transfer of the local situation or 

 actual possession takes place. After the defendant in this 

 case had said that the Horses must stand at livery, and 

 the plaintiff had accepted the order, it made no difi;'erence 

 whether they stood at livery in the vendor's stable, or 

 whether they had been taken away and put in some other 

 stable. The plaintiff possessed them from that time, not 

 as owner of the Horses, but as any other livery-stable 

 keeper might have them to keep. Under many events it 

 might appear hard if the plaintiff should not continue to 

 have a lien upon the Horses which were in his own posses- 

 sion, so long as the price remained unpaid ; but it was for 

 him to consider that before he made his agreement. After 

 he had assented to keep the Horses at livery, they would, 

 on the decease of the defendant, have become general 

 assets ; and so, if he had become bankrupt, they would 

 have gone to his assignees. The plaintiff could not have 

 retained them, though he had not received the price." 



But where a purchaser verbally agreed at a public Wliat has 

 market with the agent of the vendor to purchase twelve l^een held 

 bushels of tares (then in the vendor's possession, consti- 

 tuting part of a larger quantity in bulk), to remain in the 

 vendor's possession till called for, and the agent on his 

 return home measured the twelve bushels and set them 

 apart for the purchaser, it was held by the Court of King's 

 Bench that this did not amount to an acceptance by tiie 

 latter, so as to take the case out of the 17th section of the 

 Statute of Frauds. And Mr. Justice Bayley said, " In 



