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had been a bona-fide transaction. The Ceart of Queen's Bench held that there had been a transfer of the property by the verbal agreement: "It is true that the agreement "in September, 1858, was a verbal agreement, but this is "not an action to charge the plaintiffs or defendant upon "a contract for the sale of a chattel. It is a question raised upon the fact of a sale having been accomplished, and “that a sale may be perfected by verbal agreement, as well as by writing cannot be doubted." This is in line with what was said by Bigham, J., in Taylor v. Great Eastern Railway, 1901, 1 K. B., at 779 (1907): "I think that the "absence of a memorandum in writing, and of the other "conditions mentioned in sec. 4, sub-sec. 1, of the Sale of "Goods Act" (section 17 of the Statute of Frauds) "does not make a contract void, or even voidable. The "contract is good. The only effect of the non-fulfilment of "the statutory conditions is that it is unenforceable. And, "the contract being good, all the legal consequences of a "contract follow; so that if the contract is for the sale of "specific goods, the property in the goods passes to the buyer." What happens if the buyer refuses to pay for the goods is considered in the remarks immediately following those quoted.

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The case of Kent v. Ellis, 31 S. C. R., 110, seems opposed to the view of the Statute of Frauds above presented. This was not an action brought on a contract of sale, but an action for conversion of the property in which the defendant was setting up that the property was not that of the plaintiff, but of a third party named in the pleading. The Supreme Court held, affirming the judgment of the Supreme Court of Nova Scotia, that the plaintiff must prove an unquestionable title in himself, and "if it appears that "such title is based on a contract, the defendant may suc"cessfully urge that such contract is void under the "Statute of Frauds, though no such defence is pleaded."

Statute of frauds need not be pleaded except where a party to contract of sale is seeking to enforce it. As Ritchie, J., pointed out in the case above cited, the plaintiff's title may be derived from any one of a number of sources, and it is impossible for the defendant to anticipate the nature of the title to be set up. If it should happen to be a sale, the

defendant cannot be expected to plead the Statute of Frauds as a ground of invalidity. In the case in which these remarks were made (Kent v. Archibald), Gwynne, J., said in the Supreme Court of Canada: "All the cases "which have been cited before us show that where the "defendant was bound to plead the Statute of Frauds, it was in cases between the parties to the contract, where "one of the parties was seeking to enforce the contract against the other, and the language of Lord Blackburn "in Maddison v. Alderson, 8 App. Cases, 488, shows that "it is in relation to a case instituted by one of the parties "to a contract against the other to enforce the contract he "is speaking when he says that a defendant must plead "the statute. This cannot apply to the case of a "defendant in an action for the conversion of the goods, "where title to the goods is the point in issue, in which "action the defendant has nothing to do but to insist upon "the plaintiff showing a good title in omnibus as against "the defendant."

Delivery to carrier, followed by acceptance of part, gives purchaser right of action on contract of carriage, under Mercantile Amendment Act. Quaere as to losses before acceptance. In Friendly v. The Canada Transit Co., 10 0. R. 756 (1886), one Lowry gave an order for three cases of goods, exceeding forty dollars in value, which were shipped consigned to him, and were carried by railway and thence by defendants' steamer to Michipicoten River. While the steamer was discharging cargo, one of the cases slipped from the gangway into the water; another was landed in safety, and the third remained on board, because the purser refused to deliver it until the freight, not only on the three cases, but on some other goods consigned to Lowry, was paid. The steamer left with the goods on board, and the case so remaining on board was lost. The action was against the carrier for the case that fell overboard and the one that was lost with the steamer. It was held that there had been an acceptance and actual receipt of the goods, which had therefore become the property of the purchaser, who had, under the Mercantile Amendment Act, R. S. O., ch. 116, sec. 5, sub-sec. 1, the right to bring the action, which had been wrongly brought by the con

signor. The case of Coombes v. Bristol and Exeter Railway, 3 H. & N. 510, had decided that the consignee had no property in the goods where there had been no acceptance before the shipment, and nothing thereafter but the delivery to the carrier, inasmuch as the carrier, although the agent of the buyer to receive, had no power to accept, and Galt, J., dissented in the present case because he could not distinguish it from Coombes v. Bristol and Exeter Railway Co. But there had clearly been an acceptance here of one of the cases, which undoubtedly made the contract of sale enforceable for the whole consignment, and even as to the case that fell overboard, it was recovered and accepted under a settlement with the vendor for the depreciation in value. The point is not dealt with in the judgment that, as to this case, the statute had not been satisfied at the time when the goods were lost; but Cameron, C.J., said, in the later and somewhat similar case of Langdon v. Robertson, 13 O. R. 497 (1886), "As far as I am concerned, the case of Friendly v. Canada Transit Co. precludes me from holding otherwise" (than that plaintiffs were the owners of the goods)" as in that case I held that, by the acceptance of the goods, the property became vested in the purchaser from the time of their delivery to the carrier, and whatever right of action the seller had under the bill of lading in respect of the goods up to the time of acceptance passed upon acceptance, to him." The learned Chief Justice seems here to hold that the subsequent acceptance has a relation backwards to the time of delivery; but it is more probable that his attention was not at the moment directed to the fact of some of the goods having been lost before the acceptance which made the contract enforceable.

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It has not yet been suggested in any case that there may be a necessity for reconsidering the question in Coombes v. Bristol and Exeter Railway Co., under the more modern views as to the effect of the Statute of Frauds. In Taylor v. Great Eastern Railway, 1901, 1 K. B., at 778, Bigham, J., said "I think that the absence of a memorandum in "writing, and of the other conditions mentioned in sec. 4, "sub-sec. 1 of the Sale of Goods Act, does not make a "contract void, or even voidable. The contract is good "The only effect of the non-fulfilment of the statutory

"conditions is that it is unenforceable. And the contract "being good, all the legal consequences of a contract "follow; so that, if the contract is for the sale of specific "goods, the property in the goods passes to the buyer." Assuming the correctness of this view, and the similarity of the provisions of the Sale of Goods Act to those of the Statute of Frauds, which it was intended to follow, the effect would be that the property in the whalebone in Coombes v. Bristol and Exeter Railway Co., passed to the purchaser on shipment, and he would have the right to bring the action against the carrier.

CHAPTER III.

THE SECOND EXCEPTION.

THE second exception, viz., [unless the buyer] "give "something in earnest to bind the contract (a) or in part "payment," need not detain us long. The words have in practice been found so intelligible that there are very few cases in which any decision on the meaning of this clause is reported. "Earnest" is some tangible token or gift, which need not be in money, given or actually transferred by the buyer to the seller to mark the conclusion of the bargain (b). In Blenkinsop v. Clayton (c), in 1817, the buyer drew a shilling across the seller's hand, and put it in his own pocket to strike the bargain, and the Court of Common Pleas thought that he had not given anything in earnest.

In Sumner and Leivesley v. John Brown & Co. (d), in 1909, where the defendants sent empty bags to be filled with potatoes on account of the contract, and relied on the sending of the bags as an earnest to bind the contract, it was held that, as the bags were merely sent to facilitate the performance of the contract, they could not be regarded as an earnest given to bind it.

It need only be observed, that there cannot be any payment unless it is accepted as well as given as payment.

In Walker v. Nussey (e), in 1847, on a sale of goods, the buyer and seller agreed that a debt which the seller owed to the buyer should be set off in part payment. The jury found a verdict for the defendant, and on the motion a new trial was refused, Parke, B., saying, "no evidence was given of

(a) The word "bargain" was used in the 17th section of the Statute of Frauds, and consequently is so referred to in cases prior to the Sale of Goods Act, 1893.

(b) See Howe v. Smith (1884), 27 C. D. pp. 101, 102.

(c) Blenkinsop v. Clayton, 7 Taunt. 597. See also Bach v. Owen, 5 T. R. 409; Goodall v. Skelton, 2 H. Bl. 316.

(d) Sumner and Leivesley v. John Brown & Co., 25 T. L. R. 744.

(e) Walker v. Nussey, 16 L. J. Ex. 120; 16 M. & W. 302.