10 CONTRACTS CONCERNING HORSES, ETC. 



Mansfield said, " A common case is that of a sale of goods 

 at a wharf or a warehouse, where the usual practice is to 

 deliver the key of a warehouse or a note to the wharfinger, 

 who in consequence makes a new entry of the goods in the 

 name of the vendee, although no transfer of the local 

 situation or actual possession takes place. After the de- 

 fendant in this case had said that the horses must stand at 

 livery, and the plaintiff had accepted the order, it made no 

 difi'erence whether they stood at livery in the vendor's 

 stable, or whether they had been taken away, and put in 

 some other stable. The plaintifl' possessed them from that 

 time, not as owner of the horses, but as any other livery- 

 stable keeper might have them to keep. Under many 

 events it might appear hard if the plaintiff should not 

 continue to have a lien upon the horses which were in his 

 own possession, so long as the price remained unpaid ; but 

 it was for him to consider that before he made his agree- 

 ment. After he had assented to keep the horses at livery, 

 they would, on the decease of the defendant, have become 

 general assets ; and so, if he had become bankrupt, they 

 would have gone to his assignees. The plaintiff could not 

 have retained them, though he had not received the price." 

 What has But where a purchaser verbally agreed at a public 



been^eld^ market with the agent of the vendor to purchase twelve 

 bushels of tares (then in the vendor's possession, consti- 

 tuting part of a larger quantity in bulk), to remain in the 

 vendor's possession till called for, and the agent on his 

 return home measured the twelve bushels and set them 

 apart for the purchaser, it was held by the Court of King's 

 Bench that this did not amount to an acceptance by the 

 latter, so as to take the case out of the 17th section of the 

 Statute of Frauds. And Mr. Justice Bayley said, " In 

 Elmore v. Stone {i) the buyer directed expense to be in- 

 curred, and the directing of that expense was considered 

 evidence of an acceptance on his part. That case goes as 

 far as any case ought to go, and I think we ought not to 

 go one step beyond it. There is this distinction between 

 that case and this, that there an expense was incurred on 

 account and by the direction of the buyer ; here there 

 is none. But 1 must say, however, that I doubt the 

 authority of that decision. This case is clearly within the 

 statute" {j). 



(() Elmore t. Stone, 1 Taunt. i.'JS ; 324. And see Riekard v. Moore 

 10 K. E. 578. 38 L. T., N. S. 841— C. A. 



(J) Howe V. Falmer, 3 B. & AM. 



insufficient. 



