584 ACCEPTANCE AFTER DELIVERY. 



went with plaintiff to his farm, and selected from a flocTc 45 couples of 

 ewes and lambs, which he agreed to buy at 40s. a couple, also a stag 

 sheep and dry ewe at 40s. each. These he directed plaiutiff's shepherd 

 to send to his farm at "VYimbourne in the course of the day. They were 

 accordingly sent along with two couples of ewes and lambs (which he 

 bought from plaintiff without inspection at another of his farms) to 

 "Wimbourne, and left in his field. The defendant did not see them 

 there, but after the lapse of two days sent his man to drive them 14 

 miles to his residence, and said, after counting them on their arrival, 

 " It's all right ;" adding, with respect to the two couple, "They do not 

 match very well with those I have got." The next day the defendant 

 A\Tote to complain that the plaintiff had not sent the same sheep he 

 bought, and that unless £2 was deducted he would not take them, and 

 they were accordingly sent back. The defendant contended that the 

 bargain for the 45 couples and the two couples was one transaction, and 

 void by the 17th section of the Statute of Frauds, as there had been no 

 ])art payment or acceptance. Tlie jury found that there was a distinct 

 bargain for the 45 coujiles only, and tlie verdict was entered for the 

 plaintiff, with leave for the defendant to move to enter a nonsuit, if the 

 Court thought there was no evidence of acceptance to satisfy the 

 statute. 



The Court of Excliequer decided that the plaintiff was entitled to 

 retain his verdict for the 45 couples, as there was clearly evidence of an 

 acceptance after deliveiy, though they doubted, but did not consider it 

 necessary to decide the point, whether under the statute there could be 

 an acceptance before delivery. Alclerson B. said that he " did not agree 

 with the case of Anderson v. Scott, which, I think, required fuller con- 

 sideration." His lorship added : " Here there was evidence of an accept- 

 ance by the inspection and separation of the sheep at the time when they 

 were in the vendm''s possession, and very slight evidence of the accept- 

 ance of the sheep when received would be sufficient to show an acceptance 

 coupled with the receipt, because they were previously selected by the 

 vendee himself. It is only a question of degree. In truth the previous 

 selection of the sheep is very material to show the nature of the accept- 

 ance when the sheep were received. The defendant says, ' It is all 

 right.' If he had never seen the sheep, and there liad been no previous 

 acceptance, his saying ' It is all right ' would have had no eflect ; but 

 when he had previously examined and selected the sheep, it was for the 

 jury to say whether he did not mean, ' These are the sheep which I 

 selected.' Suppose, in the case of a remarkable animal, for instance a 

 liorse with peculiar spots, the vendee had said, ' All right,' there could 

 be no doubt he would mean, ' This is the horse I bought.' That 



