But it is to be observed, that a distinction has been taken between those contracts, where the thing contracted for is existing in solido, and capable of being delivered at the time of the contract, and those, where it is requisite that something should be done, in order to put the thing into the state in which it is to be delivered according to the contract; the former have been holden to be within the statute, the latter not. Ibid, Alexander v. Comber, As in trover for sheep, which the plaintiff had verbally agreed to buy of the defendant at Lewes fair, and to 1 H. Bl. 20. take them away at a certain hour; it appeared, that there was not any money paid, or any sheep delivered. The plaintiff not coming at the appointed time, nor sending for the sheep, the defendant sold them to another person. The court held, that the statute of frauds prevented any property from vesting in the plaintiff, so as to enable him to maintain trover; there being neither earnest, delivery, nor agreement in writing. But where the defendant bespoke a chariot, and, when made, refused to take it: In an action for the value, Pratt, C. J. held this not to be a case within the statute. Towers v. Osborn, So in this case, the defendant, on the 13th October, Clayton v. Andrews, 1766, agreed to deliver one load and a half of wheat to 4 Burr. 2101. The court, on a case reserved from Sussex assizes, were of opinion, on the authority of the preceding case of Towers v. Osborn, that this agreement was not within the statute; Yates, J. observing, that the wheat was not thrashed at the time when the contract was made, and consequently it could not be delivered at that time; therefore the statute did not apply. Per Ellenborough, Crosby v. Wadsworth, 6 East, 602. Selw. 751. Ibid. Chaplin v. Rogers, 1 East, 192. Hinde v. Whitehouse, al. 7 East, 558. The subject matter of the agreement must be taken with reference to the time of the bargain. Hence, if at that time the subject contracted for, be an unsevered portion of the freehold, as a growing crop of grass, this section of the statute does not apply. Where goods are ponderous, and incapable of being handed over from one to another, there need not be an actual delivery, but it may be done by that which is tantamount, such as the delivery of a key of the warehouse, in which the goods are lodged, or by delivery of other indicia of property. So if the purchaser deals with the commodity as if it were in his actual possession, this will supersede the necessity of proving actual delivery. Hence, after a bargain and sale of a stack of hay, between the parties where the stack stood, evidence that the vendee actually sold part of it to another person (by whom, though against the vendee's approbation, it was taken away) was held sufficient to warrant the jury in finding a delivery to, and acceptance by the vendee, so as to take the case out of the statute. So 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. TITLE XXXVII. CORONERS. CORONERS are ancient officers by the common law, and, 1 Bac. Abr. 491. in England, deal principally with pleas of the crown; from which circumstance they derive their name. Stat. 1783, c. 43. A coroner is both a judicial and a ministerial officer. In his judicial capacity, he takes inquisitions of violent and casual deaths; of which we shall have occasion to speak more at large in another place. In his ministerial capa- Ibid. sec. 1. city, he serves writs and precepts, where the sheriff, or his deputy, is a party to the same; and if present in court, it is his duty to return jurors de talibus circumstantibus in all causes, wherein the sheriff of the county shall be interested, or related to either party. So likewise, when the office of sheriff in any county may be vacant, the several coroners of such county are respectively authorized and empowered to execute and return all writs and precepts which are by law appointed to be executed and returned by the sheriff, until another sheriff for such county shall be appointed and legally qualified, and such coroners shall have notice thereof. And it shall be the duty of every person who may be appointed sheriff of any county, and legally qualified to execute said office, to give notice thereof, as soon as may be, to the respective coroners of the same county. So where any warrant for the collection of taxes by virtue of the statute, 1785, c. 50, is to be directed to the sheriff of any county or his deputy, and the person, or any one of the persons, against whom such warrant may be granted, shall be a sheriff or deputy sheriff for such county; in such case, the warrant shall be directed to and served by a coroner of the same county. Ibid. Stat. 1792, c. 17. Stat. 1785, c. 50, s. 16. Stat. 1785, c. 46, s. 7. Const. chap. 2, see. 1. art. 9. Stat. 1783, c. 43, s. 1. Stat. 1795, c. 41, sec. 1. Ibid. Ibid. In like manner, it devolves on the coroner to serve such warrants of distress as are issued against a sheriff, or his deputy, for not accounting for and paying over moneys collected of any deficient constable or collector, or for not making return of his doings therein, within a reasonable time. Coroners are appointed by the governor, by and with the advice and consent of the council, during whose pleasure they hold their respective offices. Before they enter upon the dutics of their office, they must be sworn to the faithful discharge thereof; and give security before they proceed to act, in the same manner as sheriffs, by law, are obliged to do. The fees of a coroner are as follow: 1. For serving a writ, summons, or execution, and for collecting the moneys due thereon, and for travel in returning precepts and inquisitions, the same allowance as is giv. en to sheriffs for similar services. 2. For a bail bond twenty-five cents. 3. Granting a warrant and taking an inquisition on a dead body, one dollar; if more than one at the same time, and who came to their death by the same means, twenty cents for each one after the first. 4. Every trial, where the sheriff is concerned, twentyfive cents; and the same for attending the jury therein. TITLE XXXIX. 1. IN COSTS. IN what cases a party is entitled to full costs. 2. In what cases a party is not entitled to full costs. 3. In what cases a party is entitled to double costs. 4. In what cases a party is not entitled to any costs. 5. Of costs in criminal cases. I. In what cases a party is entitled to full costs. 1. When any plaintiff shall, in any stage of his action, become nonsuit, or discontinue his suit, the defendant Stat. 1784, c. 28, sec. Costs on nonsuit or shall recover his cost against him; and in all actions, as discontinuance. well those of qui tam, as others, the party prevailing shall be entitled to his legal costs against the other. Ibid. 1783, c. 32, sec.6. On petition for the 2. When it appears to the court, that a petition for the sale of real estate is unreasonable, the court may grant reasonable costs to such respondents as have appeared sale of real estate. and objected to such petition. Ibid. 1786, c. 53, sec. 1. On petition for par 3. In case of a petition for partition, if the facts set forth in the petition are controverted, and the petitioner prevails, he is entitled to the costs attending the trial; tition. but if it be determined that the petitioner holds a less share or proportion in common and undivided than he has in his petition alleged, the adverse party shall recover, against the petitioner, his reasonable costs notwithstanding judgment may be rendered in favour of the petitioner to have an assignment of such part of the real estate in severalty, as he, in fact, holds in common and undivided. 4. So in a petition for review, pursuant to the statute of 1788, c. 11, if the court adjudge that the petitioner take nothing by his petition, the respondent in such case is petition for reentitled to his reasonable costs. Stat. 1788, c. 11, sec. 6. In |