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have that effect. In the case of goods j the payment 

 of " earnest" is expressly excepted by the statute : 

 and the meaninsf of " earnest" would seem to be 

 any payment that proved the parties to be sincere, 

 or earnest, in the purpose of dealing. If this defi- 

 nition be correct, it seems to follow that the pay- 

 ment ought to be substantial, even when intended 

 for ^^ earnest :" the common opinion undoubtedly 

 is that any payment, however small, is sufficient : 

 should the question however be fairly raised on 

 any future occasion, I think it would be decided 

 that a payment so small as to be illusory, is not 

 sufficient. But I apprehend it to be a question of 

 fact for a jury, rather than of law: and that it 

 would be the duty of the jury to say whether the 

 payment was made, whatever might be its amount, 

 with a bo)id fide intention to bind the contract. 

 I can put a case of very probable occurrence to 

 illustrate the practical importance of this question 

 of " earnest." Suppose that A should buy a horse 

 from the groom of B, for £50, and pay a shilling 

 to bind the bargain. The groom, to a certainty, 

 would expend the shilling on gin, regarding it as 

 part of his fee, or "reglars," as they call it: the 

 man consequently gets drunk on his way home, 

 and when the animal is sent for in the evening, his 

 knees are broken. On whom does the loss fall 1 



