THE EARNEST AND PART PAYMENT. 17 



old rule was, that if the buyer repented of his bargain, 

 he might refuse to fulfil it, upon forfeiting to the seller 

 the whole Earnest money deposited. But if the failure 

 to comply with the contract was on the part of the vendor, 

 he was bound to make fourfold restitution to the vendee [p) . 



But under the Statute of Frauds the Earnest binds the Effect of 

 bargain, and therefore the property passes in the same ^^^g^^^j^g 

 way as where there is a part payment. And under such statute of 

 circumstances an action for the price may be supported {q) . Frauds. 

 Thus in an Exchange of Horses, when it was agreed that 

 the plaintiff should pay the defendant four guineas to boot 

 on the 17th December following, and also that the plaintiff 

 should keep the Colt till the September following, and the 

 defendant, " to make the agreement more firm and bind- 

 ing, paid to the plaintiff one halfpenny in Earnest of the 

 bargain," it was held that the payment of the halfpenny 

 vested the property of the Colt in the defendant (r). 



Where there was a part payment for some animals. Effect of part 

 which were deposited with a third party till the full payment, 

 amount was paid, and two of them died, the loss was held 

 to fall on the purchaser (s) . 



It must be remembered that part payment of purchase- 

 money is only a part performance in respect of contracts 

 for the sale of goods, wares or merchandizes, within the 

 17th section of the Statute of Frauds {t). 



THE NOTE OR MEMORANDUM IN WRITING. 



■If there has been either an agreement in writing, or a Written 

 parol agreement v/hich is afterwards reduced into writing, agreemen . 

 by the parties, tliat writing alone must be looked to, to 

 ascertain the terms of the contract {ii). 



No particular form is necessary to constitute a good No particular 

 note or memorandum in writing ; and a sold note {x) or form re- 

 a bill of parcels is sometimes sufiicient, where it can be ^^"^'^'^• 

 proved that it has been recognized by the other party ( ?/). 



(;;) Bracton, lib. 2, cap. 27, fol. Ch. 553. 

 02. (») Per Lord Abiuger, C. E., 



(-?) Dijer V. Cowki/, 17 L. J., Q. Allen v. Fhik, 4 M. & W. 144. 

 B. 360. (.r) PartoH v. Crofts, 33 L. J., 



(r) Sack V. Owen, 5 T. R. 409. C. P. 189 ; Sievewright v. Archi- 



(s) Dyer v. Cowley, 17 L. J., Q. bald, 20 L. J., Q. B. 529. 

 B. 360. (y) See Johnson v. JDodgson, 2 M. 



(0 Sugd. Vend. & Purch. 14th & W. 653; Diorell v. Evans, 31 



ed. 152; Clinan v. Cooke, 1 Sch. & L. J., Ex. 337. 

 Lef. 22 ; Wood v. Mxdgley, 23 L. J., 



O. C 



