CASES

ARGUED AND DETERMINED

IN THE

COURT OF KING'S BENCH,

IN

TRINITY TERM,

IN THE

FIFTH YEAR OF THE REIGN OF GEORGE IV., 1824.

Millaspie

THOMPSON v. MACERONI.

Where goods of the value of 1447. were made to order and remained in the possession of the vendor at the request of the vendec, with the exception of a small part which the latter took away: Held, that there was no acceptance of the residue of the goods within the statute of frauds, sect. 17.

THE defendant had been held to bail, upon an affidavit of debt for goods sold and delivered. Bail above were put in and justified. After issue was joined, a special count for not delivering a bill of exchange was added. At the trial evidence was given of an order for the goods, and of their having been made pursuant to the order; and that the goods remained in the plaintiff's pos session, at the request of the defendant, and were of the value of 1447.; that the defendant took away a small part, of the value of 21. 10s. No bill was given, and the plaintiff, at the trial, obtained a verdict for 144/., on the count for not delivering the bill. A rule nisi had been obtained by Scarlett for entering an exoneretur on the bail-piece, on the ground that the plaintiff had recovered on the special count for not delivering the bill. Marryat showed cause, and contended, first, that there was sufficient evidence to entitle the plaintiff to recover on the count for goods sold and delivered. They were made to the defendant's order, and he took away some of the articles; and the rest remained in the plaintiff's shop, at the

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It was agreed, that the question should be considered on this motion, in order to save the expense of a cross motion for a new trial.