583 OIVTXG HALFPEXXY AS EAENEST MONEY. 



authority, and told plaintiff that his son would only receive the 

 mare if he sent a warranty that the mare was sound and quiet in 

 harness. There was not a complete contract in writing by which 

 both parties were bound, no sufficient delivery to defendant, and no 

 acceptance." 



In Bach v. Owen, the plaintiff, one ]\Iay morning, a.d. 1792, agreed 

 to give the defendant a colt for defendant's mare, and pay 2gs. to boot 

 on December 17th, plaintiff to keep the colt till September 29th. The 

 defendant, accordingly, paid a halfpenny fo hind the bargain, but would 

 not either receive the colt nor deliver the mare, and it was held that 

 the plaintiff might have an action against him, alleging a demand on 

 him for his mare, but without alleging any delivery or offer to deliver 

 his own colt ; for payment of earnest money, however small, had vested 

 I^laintiff 's colt in the defendant. But where, as in BlenMnsop v. Clayton, 

 the plaintiff sent his horse with his servant to a fair to sell, and the 

 latter, on receiving the defendant's offer of £45 for the horse, tooJc out a 

 shilling, drew the edge aross the defendant's palm, and put it into his pocket 

 again irithovt muling a tranftfer of the shilling even for a moment, and 

 then the defendant returned in half-an-hour to the plaintiff's stable, 

 and on the plea of some supposed unsoundness, which was urged by a 

 chapman to whom he wished to sell it, refused to take the horse ; the 

 Court of Common Pleas held that the Statute of Frauds was not satis- 

 fied, and after a verdict for the plaintiff granted a new trial. The case 

 they said was very different from that of a haystack, as in Chaplin v. 

 Rogers, for there nothing more could be done to confer a possession. 



There was this distinction between Blenkinsopy. Clayton and Tempest 

 V. Fitzgerald — that in the former the contract was not for ready money, 

 but the horse was to be delivered within an hour, and the defendant 

 treated it as his own hy offering it for sale ; whereas, in the latter the 

 express contract was for ready money, and the payment of the price 

 was an act concurrent with the delivery of the horse. The facts in 

 Tempest v. Fitzgerald were as follows : In August, 1817, the defendant, 

 who was plaintiff's visitor, agreed to purchase a horse for 45 guineas, 

 and fetch it about September 27th, as he returned from Doncaster 

 Races. It was understood to be a ready-money bargain, and the 

 plaintiff proposed to put the horse into physic, and have it ready for 

 the hunting season. On September 20th defendant returned, ordered 

 his horse out of the stable, saw his groom gallop and leap him, and gave 

 directions about haltering him. He then asked the plaintiff's son to 

 keep him another week, and said he would call in seven days when 

 the races were over, and left orders to have the horse sweated. On the 

 27th he returned, and found that the horse had died ; and on his refusal 



