this opinion, nonsuited the plaintiff; and this nonsuit was afterwards confirmed by the court". But if goods are ordered verbally, the delivery of them to a carrier is sufficient to bind the contract, where the purchaser has been in the habit of receiving goods from the vendor by the same mode of conveyance. Where a sample is delivered to, and accepted by the purchaser', and such sample is to be accounted for as part of the commodity sold; this will be considered as a sufficient acceptance and receiving of part of the goods, so as to take the case out of the statute. Or that some note or memorandum in writing of the bargain be made, and signed by the parties to be charged by such contract or their agents.] An action on the case was brought against the defendants, for not accepting and paying for certain goods which they had contracted to purchase by the following memorandum in writing: "We agree to give Mr. Egerton 19d. per lb. for thirty bales of Smyrna cotton, customary allowance, cash three per cent, as soon as our certificate is complete. (Signed) Mathews and Turnbull; and dated the 2d of September, 1803." The defendants had before become bankrupts, and their certificate was then waiting for the Lord Chancellor's allowance, and after it was allowed they signed the memorandum again. It was objected on the authority of Wain v. Warlters, that the contract being altogether executory, and no consideration for the promise appearing on the face of the writing, nor any mu tuality in the engagement, it was void; but the court overruled the objection on this ground, that the object and wording of the 17th section was different from that of the 4th section, in which the word agreement was introduced, and upon which the decision in Wain v. Warlters proceeded. And Lord Ellenborough, C. J. observed, that in this case of Egerton v. Mathews, the words of the statute were satisfied, if there were some note or memorandum in writing, of the bargain, signed by the parties to be charged by such contract. And this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signatures to it was all that the statute required (13). u Astey v. Emery, B. R. Trin. 55 G. 3. 4 M. & S. x Hart v. Sattley, 3 Camp. 528. y Hinde v. Whitehouse and another, 7 East, 558. Klinitz v. Surry, 5 Esp. N. P. C. 267. z Egerton v. Mathews and another, 6 East, 307. (13) It will be observed, that in this case the name of the purs Signed by the parties.] The place of the signature is immaterial. If a person draw up an agreement in his own handwriting, beginning, "I, A. B., agree, &c." and leave a place for a signature at the bottom, but does not sign it, the agreement will be considered as sufficiently signed. So, it seems, if a person be in the habit of printing instead of writing his name, he may be said to sign by his printed name, as well as his written name". In an action on the case for the non-delivery of a quantity of gin, bought of the defendants, it appeared, that at the time the order for the gin was given by the plaintiff to the defendants, a bill of parcels was delivered to the former, the printed part of which was, "London. Bought of Jackson and Hankin, distillers," and then followed, in writing, " 1000 gallons of gin, 1 in 5. gin 7s. 350l." The name of the purchaser was inserted in the bill of parcels. About a month after, the defendants also wrote the following letter to the plaintiff: "Sir, we wish to know what time we shall send you part of your order, and shall be obliged for a little time in delivery of the remainder; must request you to return our pipes. Yours, &c. Jackson and Hankin.' It was holden, that by connecting the bill of parcels with the subsequent letter of the defendants, the requisites of the statute were sufficiently complied with. So where the name of the seller was printed on the bill of parcels, but he had written thereon the name of the purchaser, that was holden to be a recognition of the contract and adoption of the printed naine, so as to satisfy the words of the statute. The Or their agents thereunto lawfully authorized.] question, whether this (17th) section of the statute, comprehends contracts for the sale of goods by auction, as well as other sales, has not as yet been solemnly deter a Knight v. Crockford, 1 Esp. N.P.C. d See Champion v. Plummer, 1 Bos. & 190. per Eyre, C. J. Pul. N. R. 254. b Per Eldon, C. J. in 2 Bos. & Pul. 239. c Saunderson v. Jackson and another, 2 Bos. & Pul. 238. e Schneider v. Norris, 2 M. & S. 286. chaser, as well as the seller, appeared in the memorandum, although the purchaser only regularly signed it; but in Champion v. Plummer, i Bos. & Pu!. N. R. 252. where the seller only signed, and the name of the purchaser did not appear on the bill of parcels, it was bolden, that the bill of parcels was an insufficient memorandum of the bargain, because there cannot be a contract without two parties. See Cooper v. Smith, 15 East, 193. mined (14). Assuming, however, that sales by auctioneers or brokers are within the 17th section, it has been uniformly holden, ever since the case of Simon v. Metivierf, that the auctioneer or broker is the agent of both parties, and a memorandum, made by him of the bargain, is a suflicient compliance with the terms of the statute, to make the contract of sale binding on each (15). But the memorandum by the auctioneer must be a sufficient memorandum; for where at a sale by auction of sugars, the auctioneer (having before him the printed catalogue of sale, containing the lots, marks, and number of hogsheads, and the gross weights of the sugars; and also another written paper containing the conditions of sale, which latter he read to the bidders, as the conditions on which the sugars were to be sold; but the two papers were neither externally annexed nor contained any internal reference to each f Per Ellenborough, C. J. delivering the opinion of the court in Hinde v. Whitehouse, 7 East, 569. (14) Lord Mansfield, C. J. and Wilmot, J. in Simon v. Metivier, 1 Bl. R. 599. were inclined to think, that sales by auction were not within the statute, on the ground, that the solemnity of that kind of sale, and the number of persons present, precluded all perjury as to the fact of sale. But see the judicious remarks of Ellenborough, C. J. on this opinion, and the reasoning on which it is founded, in Hinde v. Whitehouse, 7 East, 568. See ante, p. 797, under the 4th clause of the 4th section, as to sales of land by auction. (15) In like manner, the memorandum in a broker's book, and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, are sufficient to bind the bargain, the broker being considered as the agent of both parties. Rucker v. Cammeyer, 1 Esp. N. P. C. 105. ruled by Kenyon, C. J. on the authority of Simon v. Metivier; and per Ellenborough, C. J. in Hinde v. Whitehouse, 7 East, 569. S. P. A material alteration in a sale note by the broker, after the bargain made, at the instance of the seller, without the consent of the purchaser annuls the instrument, so as to preclude the seller from recovering upon the contract evidenced by the instrument so altered by him. Powell v. Divett, 15 East, 29. "If the broker deliver a different note of the contract to each party contracting, there is no valid contract. There is, I believe, a case which states the entry in the broker's book to be the original contract, but it has been since contradicted. Each is bound by the note which the broker delivers, and if different notes are given to the parties, neither can understand the other." Per Gibbs, C. J. Cumming v. Roebuck, Holt's N. P. C. 172. other,) wrote down on the catalogue the name of the highest bidder, and the sum bid for the particular lots; it was holden, that the minute made on the catalogue of sale, (which catalogue was not by any reference incorporated with the conditions of sale,) was not a sufficient memorandum of a bargain under those conditions of sale. But where goods were sold by auction to an agent", and the auctioneer wrote the initials of the agent's name, together with the prices, opposite the lots purchased by him, in the printed catalogue, and the principal afterwards, in a letter to the agent, recognised the purchase, it was holden, that the entry in the catalogue, and the letter, coupled together, were a sufficient memorandum of the contract. In Boydell v. Drummond, 11 East, 142., it was holden, that the signature of the defendant, in a book entituled "Shakespeare Subscribers, their signatures," not referring to a printed prospectus which contained the terms of the contract, and which was delivered at the time to the subscribers to the Boydell Shakespeare, could not be connected with the prospectus, so as to take the case out of the statute, inasmuch as such connection could not be established without the intervention of parol evidence, and that would open a door for perjury, which it was the object of the statute to prevent. If on a sale by auction of goods the same person is declared the highest bidder for several lots, a distinct contract arises for each lot; and although all the lots together purchased by the same person exceed 107. in value, yet if the lots are separately of less value than 107. a memorandum in writing is not necessary. It is to be observed, that neither the 4th nor 17th sections of this statute require, that the agent should be authorized by writing. A parol authority, therefore, is sufficient (16). But the character of agent cannot be supported by one of the contracting parties'. (16) The third section, relating to assignments and surrenders of leases, &c. requires that the agent should be authorized by writing. III. The fifth and sixth Sections relating to the Execution and Revocation of Wills. 5th Section." All devises and bequests of any lands or "tenements, devisable either by force of the statute of wills, " or by this statute, or by the custom of Kent, or of any borough, or any other particular custom, shall be in writing, "and signed by the party so devising the same, or by some "other person in his presence, and by his express directions, "and shall be attested and subscribed in the presence of the devisor, by three or four credible witnesses, or else they "shall be utterly void and of none effect." 66 All devises of any lands or tenements.] Although these words are very general, yet it has been holden, that copyhold land and customary" estates, passing by surrender, are not comprehended within them. In these cases, the estate is considered as passing by the surrender, of which the will only directs the uses. Consequently, it is not necessary that such will should be executed with the solemnities required by this statute. Hence, a mere draught of a will, the signing and publication of which were prevented by the sudden death of the testator, has been holden sufficient to pass copyhold land surrendered to the use of the will. N. By stat. 55 Geo. 3. c. 192. Dispositions by will by any person dying after 12th of July, 1815, of copyhold estates, are made effectual without any previous surrender to the use thereof. By the 12th section of the statute of frauds, "Estates pur "auter vie are devisable by will in writing, signed by the de"visor, and attested by three witnesses, as in the fifth section." Shall be in writing.] This provision is merely a repetition of what had been required by the stat. 32 H. 8. c. 1. which first gave the power of disposing of land by will. But writing was the only solemnity which that statute required (17). Hence, m Roe d. Gilman v. Heyhoe, 2 Bl. R.` 299. Cary v. Askew, coram Sir L. Kenyon, M. R. May 9, 1786. 2 Bro. C. C. 58. and in a note to Wagstaff v. Wagstaff, 2 P. Wms. 259. Cox's ed. recognized by Ellenborough, C. J. in 7 East, 324. (17) Blackstone, in his Commentaries, B. 2. c. 23. observes, that many frauds and perjuries were introduced by this stat. 32 H. 8. and remarks on the difficulty and hazard, even in matters of public utility, of departing from the rules of the common law, which are |