ioO DELIVERY AND ACCEPTANCE OF TIMBER. 



— 1st.. To the whole declaration, not guilty ; and 2ndly and ordly, to 

 the first and second counts, that Swift, and the plaintiffs, respectively, 

 were not possessed, &c. The parties had long dealt together, and when 

 trees were felled the defendant's agent marked and selected what 

 would suit him. Swift then cut off the rejected parts, and at his own 

 expense floated the trunks down the Severn to Chepstow. The timber 

 in this action had been measured and marked by the defendant's 

 agent, but the rejected portions had not been severed by Swift before 

 the issuing of the Jiat. After that date the defendant sent some work- 

 men to sever the rejected portions, and carry the rest away, and con- 

 sidered that the measuring and mai'king of the timber by his agent 

 was a suflicicnt delivery and acceptance within the Statute of Frauds, 

 and passed the property in it to him. Under Coleridge J.'s direction 

 the jury found for the plaintiff for £95, the agreed value of the timbei' 

 so taken, and the Court refused to set the verdict aside. 



Wilde C.J. said : " Upon a contract for a sale of goods, so long as 

 anything remains to be done to them by the seller the property does 

 not pass, and the seller has a right to retain them. In the present case 

 several things remain to be done : the buyer having selected and 

 marked the particular parts of the trees which Jie wished to purchase, 

 it became the seller's duty to sever those parts from the rest, and to 

 convey them to Chepstow, and there deliver them at the purchaser's 

 wharf. Xow that which the buyer does for the purpose of enabling 

 the seller to perform his part of the contract, cannot be considered as 

 an acceptance of the article. The selection and marking must of 

 necessity precede the delivery. What I understand by acceptance is 

 an act done by two parties, one of whom is content to deliver, and the 

 other to receive the subject-matter of the contract. The evidence here 

 is, that the seller engaged that he would sever the tops and sidings, 

 and after he had incurred the expenses of severing, he would incur 

 the further expense of conveying the trunks to Chepstow, and that the 

 buyer undertook to accept the trunks when severed, and delivered to 

 him at Chepstow. That is the contract which was proved. This 

 being the state of things, the seller becomes bankrupt, and the buyer 

 anxious to get possession of the timber — which it appears he had paid 

 for — goes to a place where he had no right to go, and takes upon 

 himself to sever and carry away that which does not belong to him. 

 The property clearly had not passed to the defendant, and he was 

 guilty of a trespass and conversion in possessing himself of it in the 

 way he did." Again, in TcuihIcij y. Turner the plaintiff sold Jenkins 

 all the ash trees on one Buckly's lands, where they had grown, at 

 Is. l\d. per cubic foot, on credit. Some trees were measured and 



