#### Gilman *versus*Perkins.

The provisions of R. S. ch. 66, requiring staves to be surveyed or culled previous *to*a sale, apply, not to pine staves made for fish barrels, but only to certain descriptions of oak staves.

An action may be maintained to recover the price of such pine staves sold to the defendant, though they were not culled or surveyed.

Assumpsit, for a quantity of pine fish barrel staves.

The defence was that the sale was illegal and void by the R. S. chap. 66, sec. 20, because the staves had not been culled or surveyed. Tenney, J., ruled that the prohibitions of that section of the statute do not apply to staves of this description. Yerdict for plaintiff, aud exceptions by defendant.

*Hubbard,*for the defendant.

*Kelley,*for the plaintiff.

Howard, J.

The survey, inspection, and admeasurement of shingles, clapboards, hoops, staves, boards and other lumber, is regulated by the Revised Statutes, chap. 66. The subsequent statutory provisions, for the survey of lumber in particular localities, do not affect the subject under consideration. Every town is required to elect at its annual meeting, one or more persons to be surveyors of shingles, clapboards, staves and hoops; (sec. 5,) and every town being a port of delivery, and where staves and hoops are usually exported, is required to choose, annually, two or more suitable persons to be viewers and cullers of staves and hoops ; all of whom are to be duly *321sworn, sec. 18. In section 12, it is provided that “staves, packed for sale or exportation, shall be well and proportionably split and of the following dimensions.” Then follows a description of the dimensions required for white oak butt staves, white oak pipe staves, white or red oak hogshead staves, and white or red oak barrel staves. But no mention is made of any other variety or description of staves, in that chapter. Section 13 refers to the manner of selling and counting, only. It is provided in sect. 19, that all staves and hoops, before being shipped to any place beyond the United States, shall first be viewed, culled and surveyed, by one of the officers mentioned in the 18th section, and marked, and a proper certificate thereof be given to the master of the vessel in which they may be shipped. The provisions of section 20 are, that “ any person, selling and delivering any boards, plank, timber or slit work, or any clapboards, shingles, staves or hoops, or shipping off, or attempting to ship off, any of such articles, before they are surveyed, measured, viewed or culled, as the case may require, shall forfeit two dollars a thousand,” &c. In these sections are to be found all existing provisions of law for the viewing, culling and surveying staves.

The prohibition, in section 20, applies only to the sale of the different sorts of lumber mentioned in the preceding sections, for surveying, measuring, viewing or culling of which, rules and dimensions are given. Upon the sale of staves of a different description, the statute has not imposed any restriction. It will be observed, however, that, although the statute is thus limited in its application to particular kinds of staves, yet, in reference to other lumber mentioned, its language is sufficiently general and comprehensive to embrace all varieties of materials of which it may be composed. See Rev. Stat chap. 54, sect. 14, and Act of 1846, chap. 213, respecting fish barrels, and lime-casks.

This suit was brought for the recovery of the value and transportation of a quantity of “ pine fish barrel staves.” “ The defendant contended that the sale of the staves was illegal and void, under the statute requiring staves to be culled or survey*322ed, and that the action could not be maintained.” (Sect. 19.) But the presiding Judge ruled that the statute, referred to, did not apply to staves of that description ; and to such ruling, the defendant filed exceptions. In the opinion of the court, and for the reasons stated, the ruling was correct, and the exceptions must be overruled. The motion to set aside the verdict, as being against the evidence at the trial, is not supported, and must be also overruled.

*Judgment on the verdict.*