188 PLEADING, EVIDENCE AND DAMAGES. 



person wlio witnessed the transaction, must be put into tlie 

 box (h). 

 Appropria- Where a claim consists of several items, the party 



Y^^ °^ money flaking the Tender has a right of appropriation ; but if 

 he omits to make any appropriation, the right to appro- 

 priate is transferred to the other party (/'). 



The plaintiff's Horse, warranted quiet in harness, was 

 sold for 1 61. at Aldiidge's Repository. It was afterwards 

 returned on the ground that it did not answer its War- 

 ranty, and, on being tried in a break, was found not to be 

 quiet in harness. By the printed regulations of the 

 Repository the purchase-money for any Horse, Carriage, 

 &c., sold there was not to be paid over to the vendor until 

 four days after the sale. And he was also to pay lO-s-. as 

 the expense of trial, when a Horse was found not to 

 answer his Warranty. 



After the trial of the Horse, the plaintiff called at the 



Repository and demanded an account of his expenses, 



when he received the following : — £ s. d. 



1847. July 31. Bay gelding bait ... 1 6 



Auction 5 



Au^. 4 1 -^^^ gelding, three days 10 6 

 Aug. '6 To cash price for trial of 



Bay gelding in harness 10 



£17 



The plaintiff, objecting that the charge was exorbitant, 

 laid down 19.s. 6d. on the desk in the defendant's office 

 and demanded his Horse. The defendant's clerk told him 

 he could not have it unless he complied with the Rules and 

 paid the 11. 7s. The plaintiff then went away, leaving 

 the 19s\ 6d. on the desk. 

 Proof of the The plaintiff brought an action of Debt for Monet/ had 

 ^omise or ^^^^^^ received, with a count in Detinue for the Horse. It 

 was held by the Court of Common Pleas, that as the 

 Horse was sold subject to certain conditions, the sum 

 received by the defendant on the sale was not Money liad 

 and received to the use of the plaintiff, until those con- 

 ditions had been complied with, and the time for returning 

 the Horse had elapsed. Also that the evidence did not 



{h) ScQ liionberi V. Cohen, i Esp. (/) Soc per Wilde, C. J., 2f«?Y/i«y- 



213. ham v. Allen, 5 C. B. 797. 



