each, and no one article was of the value of 107. Some were measured in his presence, some he marked with a pencil, others he assisted in cutting from a larger bulk. He then desired an account of the whole to be sent to his house, and went away. A bill of parcels was accordingly made out and sent by a shopman. The amount of the goods was 701. The defendant looked at the account, and asked what discount would be allowed for ready money, and was told 5l. per cent.; he replied that it was too little, and requested to see the person of whom he bought the goods (Baldey), as he could bargain with him respecting the discount, and said that he ought to be allowed 207. per cent. The goods were afterwards sent to the defendant's house, and he refused to accept them. The Lord Chief Justice thought that this was a contract for goods of more than the value of 107. within the meaning of the seventeenth section of the statute of frauds, and not within any of the exceptions there mentioned, and directed a nonsuit; but gave the plaintiffs leave to move to enter a verdict in their favor for 70%. A rule having accordingly been obtained for that purpose, Scarlett and E. Lawes now showed cause. Denman and Platt, contra. Аввотт, С. Ј. We have given our opinion upon more than one occasion, that the 29 Car. II. c. 3, is a highly beneficial and remedial statute. We are therefore bound so to construe it as to further the object and intention of the legislature, which was the prevention of fraud. It appeared from the facts of this case, that the defendant went into the plaintiffs' shop and bargained for various articles. Some were severed from a larger bulk, and some he marked in order to satisfy himself that the same were afterwards sent home to him. The first question is, whether this was one entire contract for the sale of all the goods. By holding that it was not, we should entirely defeat the object of the statute. For then persons intending to buy many articles at one time, amounting in the whole to a large price, might withdraw the case from the operation of the statute by making a separate bargain for each article. Looking at the whole transaction, I am of opinion that the parties must be considered to have made one entire contract for the whole of the articles. The plaintiffs therefore cannot maintain this action unless they can show that the case is within the exception of the 29 Car. II. c. 3, s. 17. Now the words of that exception are peculiar, "except the buyer shall accept part of the goods so sold, and actually receive the same." It would be difficult to find words more distinctly denoting an actual transfer of the article from the seller, and an actual taking possession of it by the buyer. If we held that such a transfer and acceptance were complete in this case. it would seem to follow as a necessary consequence that the vendee might maintain trover without paying for the goods, and leave the vendor to this action for the price. Such a doctrine would be highly injurious to trade, and it is satisfactory to find that the law warrants us in saying that this transaction had no such effect. HOLROYD, J. I am of the same opinion. The intention of the statute was that certain requisites should be observed in all contracts for the sale of goods for the price of 10l. and upwards. This was all one transaction, though composed of different parts. At first it appears to have been a contract for goods of less value than 107., but in the course of the dealing it grew to a contract for a much larger amount. At last therefore it was one entire contract within the meaning and mischief of the statute of frauds, it being the intention of that statute that where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of 107. it should not bind unless the requisites there mentioned were complied with. The danger of false testimony is quite as great where the bargain is ultimately of the value of 107. as if it had been originally of that amount. It must therefore be considered as one contract within the meaning of the act. With respect to the exception in the seventeenth section, it may perhaps have been the intention of the legislature to guard against mistake, where the parties mean honestly as well as against wilful fraud; and the things required to be done will have the effect of answering both those ends. The words are, "except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Each of those particulars either shows the bargain to be complete, or still further, that it has been actually in part performed. The change of possession does not in ordinary cases take place until the completion of the bargain: part payment also shows the completion of it; and in like manner a note or memorandum in writing signed by the parties plainly proves that they understood the terms upon which they were dealing, and meant finally to bind themselves by the contract therein stated. In the present case there is nothing to show that some further arrangement might not remain unsettled after the price for each article has been agreed upon. There was neither note nor memorandum in writing; no part of the price was paid, nor was there any such change of possession as that contemplated by the statute. Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession; and therefore as long as the seller preserves his control over the goods, so as to retain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute. 1 BAYLEY and BEST, JJ., delivered brief concurring opinions. Rule discharged.1 See further Emmerson v. Heelis, 2 Taunt, 38; Elliott v. Thomas, 3 M. & W. 170; Scott v. Eastern Counties Ry. Co., 12 M. & W. 33; Bigg v. Whisking, 14 C. B. 195; Weeks v. Crie, 94 Me. 458; Jenness v. Wendell, 51 N. H. 63; Allard v. Greasert, 61 N. Y. 1; Tompkins v. Sheehan, 158 N. Y. 617. SECTION II. SATISFACTION OF THE STATUTE. CUSACK AND OTHERS v. ROBINSON. IN THE QUEEN'S BENCH, MAY 25, 1861. [Reported in 1 Best & Smith, 299.] DECLARATION for goods sold and delivered, and goods bargained and sold. Plea, never indebted. At the trial, before BLACKBURN, J., at the Liverpool Winter Assizes in 1860, it appeared that the defendant, who was a London merchant, on the 24th October, 1860, at Liverpool, called on the plaintiffs, who are importers of Canadian produce, and said he wanted to buy from 150 to 200 firkins of Canadian butter. He then went with one of the plaintiffs to their cellar, where he was shown a lot of 156 firkins of butter, "Ex-Bohemian," belonging to the plaintiffs, which he then had the opportunity of inspecting, and in fact he did open and inspect six of the firkins in that lot. After that examination, they went to another cellar to see other butter, which, however, did not suit the defendant. At a later period of the same day, the plaintiffs and the defendant made a verbal agreement, by which the defendant agreed to buy that specific lot of 156 firkins, at 778. per cwt. When the price had been agreed on, the defendant took a card on which his name and address in London were written "Edmund Robinson, 1, Wellington Street, London Bridge, London," and wrote on it "156 firkins butter to be delivered at Fenning's Wharf, Tooley Street." He gave this to the plaintiffs, and at the same time said that his agents, Messrs. Clibborn, at Liverpool, would give directions how the goods were to be forwarded to Fenning's Wharf. The plaintiffs, by Clibborn's directions, delivered the butter to Pickford's carts to be forwarded to the defendant at Fenning's Wharf. The plaintiffs sent an invoice, dated the 25th October, 1860, to the address on the defendant's card. They received in answer a letter purporting to come from a clerk in the defendant's office, acknowledging the receipt of the invoice, and stating that on the defendant's return he would no doubt attend to it. There was no evidence that the writer of this letter had any authority to sign a memorandum of a contract. On the 27th October the plaintiffs, in Liverpool, received a telegram from the defendant in London, in effect asserting that the butters had been sold by the plaintiffs subject to a warranty, that was equal to a sample, but that they were not equal to sample, and therefore would be returned. The plaintiffs replied by telegram that there was no such warranty, and they must be kept. A clerk at Fening's Wharf proved that Messrs. Fennings stored goods for their customers, and had a butter warehouse; that the defendant had used the warehouse for fifteen years, and was in the habit of keeping his butters there till he sold them. On the 26th October, Pickford & Co. had delivered a part of the 156 firkins in question at the warehouse, and delivered the residue on the morning. of the 27th October. The witness could not say whether any one came to inspect them or not, but he proved that they were delivered up by Fenning to Pickford & Co. under a delivery order from the defendant dated 27th October. The defendant's counsel admitted that it must be taken that the sale was not subject to any warranty; but objected that the price of the goods exceeded 107., and that there was nothing proved to satisfy the requisitions of the statute of frauds. The verdict was entered for the plaintiffs for 420l. 10s. 1d., with leave to the defendant to move to enter a nonsuit, if there was no evidence proper to be left to the jury either of a memorandum of the contract or of an acceptance and actual receipt of the goods. In Hilary term, 1861, Edward James obtained a rule nisi accordingly, citing Nicholson v. Bower, 1 E. & E. 172, which rule was argued at the sittings in banc after Easter term, on the 9th May, before HILL and BLACKBURN, JJ. Mellish and Quain showed cause. The judgment of the court was now delivered by BLACKBURN, J. (After fully stating the facts his lordship proceeded). It was not contended that there was any sufficient memorandum in writing in the present case; but it was contended that there was sufficient evidence that the defendant had accepted the goods sold, and actually received the same; and, on consideration, we are of that opinion. The words of the statute are express, that there must be an acceptance of the goods, or part of them, as well as an actual receipt; and the authorities are very numerous to show that both these requisites must exist or else the statute is not satisfied. In the recent case of Nicholson v. Bower, supra, which was cited for the defendant, 141 quarters of wheat were sent by a railway, addressed to the vendees. They arrived at their destination, and were there warehoused by the railway company under circumstances that might have been held to put an end to the unpaid vendor's rights. But the contract was not originally a sale of specific wheat, and the vendees had never agreed to take those particular quarters of wheat; on the contrary, it was shown to be usual, before accepting wheat thus warehoused, to compare a sample of the wheat with the sample by which it was sold; and it appeared that the vendees, knowing that they were in embarrassed circumstances, purposely abstained from accepting the goods, and each of the judges mentions that fact as the ground of their decision. In Meredith v. Meigh, 2 E. & B. 364, the goods, which were not specified in the original contract, had been selected by the vendor, and put on board ship by the directions of the vendee, so that they were in the hands of a carrier to convey them from the vendor to the vendee. It was there held, in conformity with Hanson v. Armitage, 5 B. & Ald. 557, that the carrier, though named by the vendee, had no authority to accept the goods. And in this we quite agree: for, though the selection of the goods by the vendor, and putting them in transit, would, but for the statute, have been a sufficient delivery to vest the property in the vendee; it could not be said that the selection by the vendor, or the receipt by the carrier, was an acceptance of those particular goods by the vendee. In Baldey v. Parker, 2 B. & C. 37, which was much relied on by Mr. Milward in arguing in support of this rule, the ground of the decision was that pointed out by Holroyd, J., who says, p. 44: "Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession; and therefore as long as the seller preserves his control over the goods, so as to retrain his lien, he prevents the vendee from accepting and receiving them as his own, within the meaning of the statute." The principle here laid down is that there cannot be an actual receipt by the vendee so long as the goods continue in the possession of the seller, as unpaid vendor, so as to preserve his lien; and it has been repeatedly recognised. But though the goods remain in the personal possession of the vendor, yet, if it is agreed between the vendor and the vendee that the possession shall thenceforth be kept, not as vendor but as bailee for the purchaser, the right of lien is gone, and then there is a sufficient receipt to satisfy the statute; Marvin v. Wallis, 6 E. & B. 726; Beaumont v. Brengeri, 5 C. B. 301. In both of these cases the specific chattel sold was ascertained, and there appear to have been acts indicating acceptance subsequent to the agreement which changed the nature of the possession. In the present case there was ample evidence that the goods, when placed in Fenning's Wharf, were put under the control of the defendant to await his further directions, so as to put an end to any right of the plaintiffs as unpaid vendors, as much as the change in the nature of the possession did in the cases cited. There was also sufficient evidence that the defendant had, at Liverpool, selected these specific 156 firkins of butter as those which he then agreed to take as his property as the goods sold, and that he directed those specific firkins to be sent to London. This was certainly evidence of an acceptance, and the only remaining question is, whether it is necessary that the acceptance should follow, or be contemporaneous with the receipt, or whether an acceptance before the receipt is not sufficient. In Saunders v. Topp, 4 Exch. 390, which is the case in which the facts approach nearest to the present case, the defendant had, according to the finding of the jury, agreed to buy from the plaintiff 45 couple of sheep which the defendant, the purchaser, had himself selected, |