PLEADING AND EVIDENCE FOR THE PLAINTIFF. 187 



Where an action is brougM for Fraudulent Eepresenta- Proof in an 

 tion on the sale of a Horse, the plaintiff should be prepared action for 

 to prove the Wrongful act alleged to have been committed Hc^resenta- 

 by the defendant, namely, the Sale by means of the tion. 

 Fraudulent Rejjresentation (s) ; and it is essential to show 

 that there was a Sale and also a Misrejjresentation (t). But 

 he must give proof of Damage whether general or special {u) . 



A Sale may in all cases be implied prima facie from Proof of the 

 evidence of a delivery to, and an acceptance by, the pur- I^argain and 

 chaser (.r). "We have seen, in the First Chapter, what ^ ^" 

 is sufficient evidence of a contract for Sale, either where 

 the value is under 10/. ( g) ; or the agreement is not to be 

 performed within a year (s) ; or the value is 10/. or 

 upwards, within the 17th section of the Statute of 

 Frauds {a) . Where there is an agreement in writing, it 

 should be put in and proved, and it is not necessary that 

 it should be stamped {b). Where, however, the Bargain 

 and Sale has been made by word of mouth, the plain- 

 tiff {c), or some witness {d) of the transaction must bo 

 called. 



Where the Consideration is set out in the Statement of Proof of the 

 Claim as executorg, it will in point of fact depend upon the Considera- 

 same proof as the Contract for Sale. When it is executed, 

 the plaintiff must show that it took place before the 

 Contract, and that it arose at the defendant's request {e) . 

 In the case of a Sale he must prove Pagment of the Price ; 

 but where the Consideration is another Horse, or other 

 goods, a Deliverg and Accejytaiice must be proved. Where, 

 however, the transaction is substantially a Sale, the plaintiff 

 may prove that the defendant took another Horse in part 

 payment (/). 



The Pagment of t/ie Price is usually proved by producing Proof of 

 the Receipt, which of course must bear a Stamp, where Payment of 

 the sum is 21. or upwards ( g) ; and if no Receipt was ^ ^^^^' 

 given, or it was unstamped or lost, the plaintiff, or some 



(s) Per Cresswell, J., Mummcnj (a) 29 Car. 2, c. 3, s. 17; and see 



V. Faul, 1 C. B. 327. ante, Chap. I. 



{() Per Erie, J., Ibid. (i) Skrliw v. Elmore, 2 Camp. 



{/() Per Bramwell, B., Eastwood 407. 

 V. liain, 28 L. J., Ex. 74. (c) 14 & 15 Vict. c. 99, ss. 1, 2. 



(2-) Bennett v. Ilotdvrson, 2 Stark. [d) The phxintiff's husband or 



5-50 ; and see Smith v. Halt, 9 C. & wife is now admissible as a witness, 



P. G96. IG & 17 Vict. c. 83, ss. 1, 4. 



(?/) See ante. Chap. I. (c) King v. Scars, 2 Cr. M. & E. 



(;) 29 Car. 2, c. 3, s. 4 ; and see 48. 

 ante, Chap. I. (/) Hands v. Burton, 9 East, 349. 



(y) 33 & 34 Vict. c. 97, 's. 120. 



