BUYING HORSE FOR LESS THAN £10. 585 



shows the whole question is one of degree only ; and the previous fact 

 of selection may well be used as a circumstance from which the jury 

 might properly infer an acceptance at the time of the receipt." 



Where the conirad for the sale of a horse is not to he iierformed within 

 a year, the agreement itself, or some memorandum or note of it, must 

 be in writing, and be signed by the party to be charged, or his agent, 

 within the 4th section of the Statute of Frauds. 



If the price is under £10, and the seller states ivhat he aslcs for his 

 horse, and a Iniycr says he tvill yive it, the bargain is struck, and neither 

 of them is at liberty to be off, provided that immediate possession of 

 the horse or the money be tendered by either side. 



Where a horse is houyld for any in-ice or consideration vnder the value 

 of £\0, and there is not an actual imyment and delivery at the time of 

 sale, and the contract is to he performed within a year, the bargain may 

 be bound by any of the following five methods : 1st, an agreement to 

 deliver the horse on a certain day, a day also being agreed uj)on for pay- 

 ment of the price, and, in default, the buyer may have an action for the 

 horse, or the seller for his money ; '•l\\^^',^\ii payment of the lohole price, 

 and then if the seller do not deliver the horse the buyer may sue him, 

 and recover it ; "ivdAj , part payment of the purchase-money , and then the 

 buyer may sue for and recover the horse, or the seller may sue for the 

 residue of the price ; 4thly, an earnest may be given, and even the 

 smallest sum is sufficient, and in such case the remedies are reciprocal ; 

 5thly, an actual delivery of the house, and even if there be none of the 

 purchase-money paid, no earnest given, or no day set for payment, the 

 seller may at any time sue the buyer, and recover his money {OliplianVs 

 Law of Horses, 2nd ed., p. 4). 



In Marvin v. Wallace, a complete verhal haryain had heen made for the 

 sale of the horse in qvestion hy tlie plaintiff to tlie defendant for more than 

 £10 ; and hefure there had heen an actual delivery of the horse, the p)laintiff 

 asked the defetidant to lend him it to use for a short time, as he had two 

 or three journeys to make. Defendant assented, telling him to take 

 care of him ; and the horse remained a fortnight with the plaintiff, not 

 as vendor, but as borrower, during which he threw him down and broke 

 his knees. On the day fixed for the return of the horse, plaintiff sent 

 him to the defendant who said he had been injured in the interval, and 

 would not receive him. There was no part payment, and no memo- 

 randum in writing. It was objected that there was no evidence to go 

 to the jury of any acceptance and actual receipt of the horse, but Lord 

 Camphell C.J. would not stop the case. Defendant then gave evidence 

 that by the original verbal bargain the horse was not to be delivered 

 for a month ; and that plaintiff retained possession, not as a borrower. 



