measure; that the hobbett of wheat contains four Welsh pecks; that each Welsh peck contains 42 lbs. weight, and therefore the hobbett contains 168 lbs. weight; that an ordinary sack should contain six Welsh pecks, that is 252 lbs. weight, or a hobbett and a half. That, if upon weighing the sack it is found to contain less than the 252 lbs. weight, wheat is added, to make up that weight; and, if the sack contains more than the 252 lbs. weight, wheat to the amount of the excess in weight is taken out. In the present case, the sale was made, by sample, at Rhyl in Flintshire, at so much per hobbett; and the wheat was delivered in sacks of the ordinary kind. Upon this evidence, the learned Judge directed a verdict for the defendant on the third issue: and a verdict was found for the plaintiff on the other issues; leave being reserved to move to enter a verdict for the plaintiff on the third issue. In last Easter Term, E. Beavan obtained a rule Nisi for entering a verdict for the plaintiff on the third issue, or for a new trial. The sale Welsby and C. Milward now shewed cause. was a violation of stat. 5 & 6 W. 4. c. 63. Sect. 6, after abolishing "the measure called the Winchester bushel," "and all local or customary measures," enacts that "every person who shall sell, by any denomination of measure other than one of the imperial measures, or some multiple or some aliquot part, such as half, the quarter, the eighth, the sixteenth, or the thirty second parts thereof, shall, on conviction, be liable to a penalty not exceeding the sum of forty shillings for every such sale: provided always, that nothing herein contained shall prevent the sale of any articles in any vessel, where 1854. HUGHES V. HUMPHREYS. 1854. HUGHES V. HUMPHREYS. such vessel is not represented as containing any amount of imperial measure, or of any fixed, local, or customary measure heretofore in use.' It will be contended, in support of the rule, that a hobbett appears, upon the evidence, to be a measure of weight and not of capacity. It is important, however, to trace the history of the law. Stat. 22 C. 2. c. 8. s. 2. imposes a penalty for selling any sort of corn usually sold by the bushel by any other bushel or measure than the Winchester measure, containing eight gallons to the bushel. In Rex v. Major (a) and Rex v. Arnold (b) it was held that this law and the subsequent statute, 22 & 23 C. 2. c. 12. s. 2., adding to the pecuniary penalty enforced by the former Act the forfeiture of the corn sold, were still in force, and a conviction for the penalty and forfeiture good, though it was suggested in the former case that later statutes had incidentally sanctioned the use of other measures. In Tyson v. Thomas (c) it was held that an action could not be maintained upon a contract to sell by the hobbett. [Lord Campbell C. J. It there appeared, on the evidence, that a hobbett consisted of four pecks of twenty one quarts each: here the evidence is that the word designates a certain weight estimated in pounds.] The contract is completed in the market: the evidence certainly went so far as to shew that it was usually understood that the measure would answer to a certain weight. [Lord Campbell C. J. It might perhaps be a measure of capacity, if the evidence shewed no more than a collateral warranty that it should weigh so much.] The evidence fell short even of that. In Owens v. Denton (d) also a sale by hobbett was held to be illegal. [Lord Camp (a) 4 T. R. 750. (e) M'Clel. & Y. 119. (b) 5 T. R. 353. bell C. J. It was there assumed that the hobbett was a measure of capacity.] The policy of the Legislature has been to discourage the use of local measures. Soon after the decision of Tyson v. Thomas (a) stat. 5 G. 4. c. 74. came in force (b). That statute, by sect. 23, repealed (among many others) the two Acts of C. 2. already mentioned, so far as related to establishing standard weights and measures; and enacted, by sect. 15, that "all contracts, bargains, sales and dealings" for any work, &c., or "for any goods, wares, merchandize or other thing to be sold, delivered, done or agreed for by weight or measure, where no special agreement shall be made to the contrary, shall be deemed, taken and construed to be made and had according to the standard weights and measures ascertained by this Act; and in all cases where any special agreement shall be made, with reference to any weight or measure established by local custom, the ratio or proportion which every such local weight or measure shall bear to any of the said standard weights or measures shall be expressed, declared and specified in such agreement, or otherwise such agreement shall be null and void." Under that Act Lord Tenterden thought that a sale even by the Winchester bushel, not specifying its proportion to the standard weights, was bad; Watts v. Friend (c). [Lord Campbell C. J. But the sale here, however worded, was at so much per pound avoirdupois.] The same argument might be applied to sales by the Winchester bushel, which was always understood to contain 70 lbs. (a) M Clel. & Y. 119. (b) Sects. 15 and 23 were, by stat. 5 G. 4. c. 74., to come in force on 1st May 1825; but the time was postponed to 1st January 1826, by stat. 6 G. 4. c. 12. s. 1. (c) 10 B. & C. 446. 1854. HUGHES V. HUMPHREYS. 1854. HUGHES V. HUMPHREYS. [Crompton J. You could not have insisted on 70 lbs. Sect. Joseph Brown and Coxon, contrà, were not called upon. Lord CAMPBELL C. J. I am clearly of opinion that this objection cannot be supported. It is no ground for the objection that a particular measure is named; for the statutes referred to, on which the decisions have taken place, were to the effect only that when the sale was by measure this should be by measure of a particular (a) 5 T. R. 353. (b) C. Milward also mentioned that the conviction in Rex v. Major (4 T. R. 750) is to be found in 6 Wentw. Pl. 23. It states that the party bought "forty bushels of wheat unground by another and different bushel and measure than" the Winchester measure. 1854. HUGHES V. sort. There is nothing to indicate that, when the sale was by weight, the designation of a given weight by a local measure was illegal. If, however, this was really HUMPHREYS. a sale by measure of capacity it would be contrary to the Act. And the question therefore comes to be, Was it a sale by measure or a sale by weight in pounds? Now, according to the evidence, when you buy by hobbett you buy, not dimensions, but avoirdupois pounds; and the contract is not fulfilled unless that weight is made up it is therefore a sale of so many times 168 lbs., which is a sale by weight, and no infringement of stat. 5 & 6 W. 4. c. 63., or of any other Act. COLERIDGE J. concurred. ERLE J. It is clearly a sale by the pound, the hobbett being a given multiple of a pound. CROMPTON J. concurred. Rule absolute (a). (a) See Jones v. Giles, 10 Exch. 119. |