1 Brown v. Wade, 42 la. 647, held, that the pointing out by the vendor of certain cattle running with others as his, and naming the price, which the vendee agreed to take at the price, is a sufficient delivery to take case out of the statute. - K.

(o) Gray v. Davis, 10 N. Y. (6 Seld.) 285. See Hinchman v. Lincoln, 124 U. S. 38.

(p) Wilkes v. Ferris, 5 Johns. 335; Chappel v. Marvin, 2 Aikens, 79.

(q) Harman v. Anderson, 2 Camp. 243.

(r) Peters v. Ballistier, 3 Pick. 495. See next note.

(s) Wilkes v. Ferris, 5 Johns. 335. And see Searle v Keeves, 2 Esp. 598; Harman v. Anderson, 2 Camp. 243; Withers v. Lyss, 4 id. 237; Tucker v. Ruston, 2 C. & P. 86.

(t) In Farina v. Hone, 16 M. & W. 119, goods were shipped by the plaintiff ance, where the goods are bulky and difficult of access or removal, as a quantity of timber floating in a boom, or a mass of granite, or a large stack of hay.(u) So a part may be delivered * for the whole, and in general a delivery of part is a delivery of the whole, if it be an integral part of one whole, (v) but not if many things are sold and bought as distinct articles, and some of them are delivered and some are not (w) If several owners make a joint sale, and one of them sells a part of his portion, the delivery of this is said to satisfy the statute as to all. (x) Whether the delivery of a part was intended as a delivery of the whole, is a question of fact for the jury. (y)

1 Even though the vendor retains possession there may be an actual receipt within the statute, if the vendor holds as bailee for the vendee. Cusack v. Robinson, 1 B. & S. 299, 308; Rodgers v. Jones, 129 Mass. 420, 422.

A sale by sample is not a sale with delivery, if the sample be first sent and afterwards the sale completed. But after a sale is made, a part of the goods may be delivered nominally as a sample, but yet so as to make it a part delivery and acceptance. (z) We from abroad to this country, on the verbal order of the defendant, at a price exceeding £10. They were sent to a shipping agent of the plaintiff, in London, who received them and warehoused them with a wharfinger, informing the defendant of their arrival. The wharfinger handed to the shipping agent a delivery warrant, where-by the goods were made deliverable to him or his assignees by indorsement, on payment of rent and charges. The agent indorsed and delivered this warrant to the defendant, who kept it for several months, and, notwithstanding repeated applications, did not pay the price of, or charges upon, the goods, nor return the warrant, but said he had sent it to his solicitor, and that he intended to resist payment, for that he had never ordered the goods; and that they would remain for the present in bond. Held, that there was no such delivery to, and acceptance by, the defendant of the goods, as to satisfy the 17th section of the statute of frauds. And Parke, B., said: "This warrant is no more than an engagement by the wharfinger to deliver to the consignee, or any one he may appoint; and the wharfinger holds the goods as the agent of the consignee (who is the vendor's agent), and his possession is that of the consignee, until an assignment has taken place, and the wharfinger has attorned, so to speak, to the assignee, and agreed with him to hold for him. Then, and not till then, the wharfinger is the agent or bailee of the assignee, and his possession that of the assignee, and then only is there a constructive delivery to him. In the mean time the warrant, and the indorsement of the warrant, is nothing more than an offer to hold the goods as the warehouseman of the assignee." And see Bentall v. Burn, 3 B. £ C. 423; Godts v. Rose, 17 C. B 229, 33 Eng. L. & Eq. 268; Lackington v. Atherton, 7 Man. & G. 360; Hallgarten v. Oldham, 135 Mass. 1. Symbolical delivery is only effectual where it can be followed by an actual delivery. Stevens v. Stewart, 3 Cal. 140.

(u) Jewett v. Warren, 12 Mass. 300; Boynton v. Veazie, 24 Me. 286; Gibson v. Stevens, 8 How. 384; Calkins v. Lock-wood, 17 Conn. 154. But see Shindler v. Houston, 1 Denio, 48, 1 Comst. 261; Lay v. Neville, 25 Cal. 544; Godchaux v. Mumford, 26 Call, 316.

(v) Slubey v. Heyward, 2 H. Bl. 504; Hammond v. Anderson, 4 B. & P. 69; Elliott v. Thomas, 3 M. & W. 170; Scott v. The Eastern Counties Railway Co, 12 M. & W. 33; Biggs v. Whisking. 14 C. B. 195, 25 Eng. L. & Eq. 257; Mills v. Hunt, 20 Wend. 431; Davis v. Moore, 13 Me. 424; Jenness v. Wendell, 51 N. H. 63; Garfield v. Paris, 96 U. S. 557; Van Woert v. Albany, etc. R. Co., 67 N. Y. 538.

(w) Price v. Lea, 1 B. & C. 156: Seymour v. Davis, 2 Sandf. 239.

(x) Field v. Runk, 2 N. J. 525..

(y) Pratt v. Chase, 40 Me. 269.

(z) In other words, the delivery of a sample, which is no part of the thing sold, will not take a sale out of the statute, but if the sample be delivered as part of the bulk, it then binds the contract. Talver v. West, Holt, N. P. 178; Johnson v. Smith, Anthon.N. P. 60; id. 81 (2d ed.l; Hinde v. Whitehouse, 7 East, 558; Gardner v. Grout, 2 C. B. (n. s.) 340; Moore v. Love, 57 Miss. 765; Farmer v. Gray, 16 Neb. 401.

think that if the seller does in any case what is usual, or what the nature of the case makes convenient and proper, to pass the effectual control of the goods from himself and to the buyer, this is always a delivery; and nothing less than this is so.

In like manner, as to the question of acceptance, we must inquire into the intention of the buyer, the nature of the goods, and the circumstances of the case. If the buyer intends to retain possession of the goods, and manifests his intention by a suitable act, it is an actual acceptance of them;(a)1 although this intention may be manifested by a great variety of acts, in accordance with the varying circumstances of different cases. He has a right to examine the goods, and ascertain their quality, before he determines whether to accept or not; and a retention by him for a time sufficient for this examination, and no more, is not an acceptance, (b) * It is a question perhaps of some difficulty, how far such intention on the part of the buyer, and a corresponding act, are consistent with his reserving the right of making any future objection to the goods, on the score of quantity or quality, and rescinding the sale on such ground. The greater number of decisions declare such reservation to be incompatible with acceptance and actual receipt, and hold, therefore, that while the buyer retains this right, he has not accepted the goods under the statute, (c) But a recent decision of much weight, insists upon what seems to be the opposite doctrine, (d)1 We think, * how(a) Baines v. Jevons, 7 C. & P. 288; Saunders v. Topp, 4 Exch. 390.