6d. per ewt., to be delivered on the 31st October; and 10 puncheons at 37s. per cwt., to be delivered on the 1st of November. At the trial before Sir James Mansfield Ch. J. at the Guildhall sittings afterlast Hilaryterm,it was proved that a bargain for the treacle in question was made between the Plaintiffs' clerk and the Defendant, as stated in the declaration, and that the following note was made by the Plaintiffs' clerk in a common memorandum book, and signed by the Defendant, as under: On the part of the Defendant it was objected, that this did not amount to a sufficient note or memorandum of the contract within the statute of frauds 29 Car. 2. c. 3. s. 17., as it was not signed by the purchaser; and his lordship being of this opinion, nonsuited the Plaintiff. A rule having been obtained, calling on the Defendant to shew cause why the nonsuit should not be set aside and a new trial had, Shepherd Serjt. shewed cause and insisted that it did not appear by the memorandum who was the buyer of the goods, and, as it was not signed by the buyer, he could not be bound by it, consequently the Defendant ought not to be bound by an agreement which would not bind the other contracting party. With respect to the case of Sanderson T 3 1805.' CHAMPION and Another v. PLUMMER. Sanderson v. Jackson, 2 Bos. & Pull. 238., which was referred to on moving for the rule, he observed, that upon reference to the brief in that cause, it appeared that the name of the purchaser was stated in the bill of parcels, though that circumstance is not mentioned in the report, the case having turned entirely upon the sufficiency of the yendor's signature. Best Serjt. contrà urged that the expressions of the sta tute " some note or memorandum in writing of the bargain to be made and signed by the parties to be charged by such contract," did not require the agreement to be reduced to writing in regular form, and that it was sufficient if the party to be charged in the action, by the production of the memorandum, had signed it, although it was not signed by the other party. Sir JAMES MANSFIELD Ch. J. How can that be said to be a contract, or memorandum of a contract, which does not state who are the contracting parties? By this note, it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the Plaintiffs; there cannot be a contract without two parties, and it is customary in the course of business to state the name of the purchaser as well as of the seller in every bill of parcels. This note does not appear to me to amount to any memorandum in writing of a bargain. The rest of the Court concurring, (a) But it seems that a contract for sale of an interest in land need only be signed by the party sought to be charged thereby,under the fourth section of the statute of frauds. Rule discharged (a). Vid. Seton v. Slade, 7 Ves. jun. 275 and what is said of that case byLord Ellenborough in Wain v. Walters, 5 East, 16. TH EMMETT O LYNE. HE Plaintiff in this case declared for an assault, battery, and imprisonment, and at the trial, a trifling imprisonment having been proved, but no battery, the Plaintiff obtained a verdict with one farthing damages. Upon this Sir James Mansfield, Ch. J. before whom the cause was tried, certified under the 43 Eliz. c. 6. to deprive the Plaintiff of his costs. Best Serjt. in the course of last term moved that the Plaintiff might be entitled to his full costs not withstanding the certificate, and now on the argument of the case insisted that every imprisonment included a battery, for which he cited Bull. Ni. Pri. c. 4. p. 22. ed.2.,and consequently the Plaintiff could not be deprived of his costs by a certificate under 43 Eliz. c. 6. He also cited Truscott v. Carpenter, 1 Ld. Raym. 229., where the Court say, "imprisonment upon legal process includes a battery.' [Chambre J. In that case the Defendant justified assault, battery, and false imprisonment under a legal arrest, and the Court say, the Defendant in answer to a battery alleged ought to shew a necessity for the battery, for that a right to arrest does not give a right to commit a battery in all cases, though it may in some. The case of Williams v. Jones, 2 Stra. 1049. is to the same effect.] Shepherd Serjt. contrù was stopped by The Court,who said, that they had looked into the cases upon this point, and were clearly of opinion that the Plaintiff was deprived of his costs by the certificate; they referred to the case of Walker v. Robinson, 1 Wils. 93. 2 Stra. 1232. S. C. and observed, that it was absurd to T 4 contend May 13th. If a Plaintiff sue for assault, battery, and imprisonment, but only prove an imprisonment, and obtain one farthing damages, a certiíi cate of the Judge, under the 43 Eliz. c. 6. will deprive him of costs. 1805. EMMETT t. LYNE. contend that every imprisonment included a battery, and that all that was said in Co. Litt. 253. which was cited in support of that proposition in Bull. Ni. Pri, was that "imprisonment is a corporal damage." Rule discharged, May 16th. The Court will not open the rule for an attachment HOPLEY V. GRANGER. LENS Serjt, having obtained an attachment against the on the mere affida- ry's allocatur upon the usual affidavit of service; vit of the party, that he has not been served; at least unless he shew some mistake in the service. affi Best Serjt. now moved to open the rule upon an davit of the party himself stating that he had never been served. But the Court said, that on motions for attachment, where service of process has been sworn to, the Court will not set aside the attachment upon the oath of the party himself that he has not been served, unless he can also shew that some mistake has been made in the service, as that one person has been served for another; and that as process is generally served without a witness, it would lead to the greatest inconvenience if a different rule was to prevail. Best Serjt. took nothing by his motion. TH ELLIS MORTIMER. HIS was an action to recover the sum of thirty guineas, as the price of a horse sold by the Plaintiff to the Defendant. 1805 May 20th. 4. having a horse B. have him for 30 month upon trial: B. accordingly took him, and kept him about a fortnight, and then told A. he liked the horse, but not the price; and At the trial before Chambre J. at the Guildhall sittings after last Hilary term, it appeared that the Plaintiff hay. ing a horse to sell, offered him to the Defendant, and it was agreed that the Defendant should give thirty guineas for the horse if he liked him, and should take him for a month upon trial: that the Defendant having accordingly taken the horse and kept him for about a fortnight, told the Plaintiff, upon being asked how he liked the horse, that he liked the horse but not the price; upon which the Plaintiff desired, that if the Defendant did not like the price he would return the horse: that the Defendant after this kept the horse 10 days, and then sent him back, the him, and brought month originally agreed upon for trial not being expired; but that the Plaintiff refused to receive him. The learned Judge told the jury that it was not competent to the Plaintiff to vary the time of trial originally agreed upon, but that if it could be inferred that the old agreement for a month's trial was put an end to, and a new agreement to take the horse was made, the Plaintiff was entitled to a verdict. The jury found a verdict for the Plaintiff, A rule having been obtained calling on the Plaintiff to shew cause why the verdict should not be set aside, and a new trial granted, Best Scrjt. now shewed cause, 'and insisted that the Defendant by keeping the horse after the conversation between himself and the Plaintiff had made the horse his own, it being evident that he had made up his mind at the A. desired him, if he did not like the price, to return the horse; B. however kept him 10 days more, and then returned him; but A. refused to receive an action on the contract for 30 guineas, the price of the horse. Held that he could not maintain such action. |