SALE OF SPECIFIC CHATTEL OX CREDIT. 405 



governed the decision of tlie same Court in Marlinddh v. Smith. Here 

 the defendant on April 23rd sold six oat stacks for £HU, standing on his 

 own ground, to the plaintiff, with liherty to leave them there till the 

 middle of August, and to defer payment for twelve weeks from the date 

 of the agreement. In the beginning of July the defendant told the 

 plaintiff that if he did not pay on the IGth of the month he would 

 consider the contract at an end. Plaintiff did not pay on that day, but 

 asked for time, which the defendant refused to give ; adding, that now 

 the plaintiff should not liave the stacks, as he had failed to come to 

 time. Two or three days after, the money was tendered, but not 

 accepted ; and on the 14th of August the plaintiff served a written 

 notice on the defendant, repeating his tender, and stating his intention 

 to remove the stacks at ten o'clock next morning, and requesting ad- 

 mittance to the field for that purpose. He again made an actual tender, 

 and required the defendant not to sell the stacks, which he did. Trover 

 was accordingly brought, and Alder son B. directed a verdict for the 

 plaintiff, giving leave to move to enter a verdict for the defendant on 

 the second issue, that the plaintiff was not possessed of the goods and 

 chattels of his own property, modo et forma, &c. The Court refused the 

 rule, and decided that the vendor had no right to treat the sale as at an 

 end, and re-invest the property in himself by reason of the defendant's 

 failure to pay the price at the appointed time, and that the vendor's 

 right to detain the thing sold against the purchaser must be considered 

 as a right of lien till the price is paid, not a right to rescind the 

 bargain ; and here the lien was gone by tender of the price. 



According to Smiili v. NcaU (which confirmed the judgment of Kin- 

 dersley V.C. in Warner v. WilUngton), a tvritten proposal, coniahihig Uie 

 terms of a proposed contract, signed by tJie defendant, and assented to hj 

 the plaintiff hy word of mouth, is a sufficient agreement luitMn the Ath 

 section of the Statute of Frauds. But an agreement whereby all that 

 is to be done by the plaintiff, constituting one entire consideration for 

 the defendant's promise, is capable of being performed within a year, 

 and no part of what the plaintiff is to do constituting such consideration 

 is intended to be postponed until after the exj^iration of the year, is not 

 within the 4th section of the statute, notwithstanding the perform- 

 ance on the part of the defendant is or may be extended beyond that 

 period (/&.). And see Donellan v. Read ; and the judgment of Lord 

 Wenslegdale in Cherry v. Heming. 



And per Parlce J. : " In the older cases the Court did not advert to 

 the words of the statute ; but the later cases {Howe v. Palmer ; Hanson 

 V. Armitage ; Carter v. Tonssaint ; Tempest v. FUzgercdd) have estab- 

 lished that unless there has lecn such a dealing on the pari of the pur- 



