THE EAENEST AND PART PAYMENT. 



13 



thing by way of pledge or assurance, and the other being a 

 payment of part of the purchase -money (s). A similar dis- 

 tinction is made in the Statute of Frauds (t), and in 

 section 4 of the Sale of Goods Act, 1893, ante, p. 5. Thus 

 the buyer must " give something in earnest to bind the bar- 

 gain," 01' "give something in part payment." 



A symbolical earnest may be anything used by the 

 parties to bind the bargain. Therefore, a saddle, bridle, 

 horsewhip or currycomb may be used for the purpose. 



A pecuniary earnest consists of a current coin or sum of 

 money given in part payment, and its efficacy does not 

 depend upon its value being proportioned to that of the 

 article contracted for. 



Where the earnest, whether symbolical or pecuniary, 

 is delivered to the vendor, it should be kept by him, and 

 not be returned to the purchaser. For where the purchaser 

 of a horse or other goods draws the edge of a shilling over 

 the hand of the vendor, and returns the money into his own 

 pocket, which in the north of England is called " striking 

 off a bargain," it is neither an earnest nor a part payment 

 within the statute {u). 



Where an earnest was given on a contract of sale, the 

 old rule was, that if the buyer repented of his bargain, he 

 might refuse to fulfil it, upon forfeiting to the seller the 

 whole earnest money deposited. But if the failure to com- 

 ply with the contract was on the part of the vendor, he was 

 bound to make fourfold restitution to the vendee (x). 



But under the statute the earnest binds the bargain, and 

 therefore the property passes in the same way as where 

 there is a part payment. And under such circumstances an 

 action for the price may be supported («/) . Thus in an ex- 

 change of horses, when it was agreed that the plaintiff 

 should pay the defendant four guineas to boot on the 17th 

 December following, and also that the plaintiff should keep 

 the colt till the September following, and the defendant "to 

 make the agreement more firm and binding, paid to the 

 plaintiff one halfpenny in earnest of the bargain," it was 

 held that the payment of the halfpenny vested the property 

 of the colt in the defendant (s). 



Symbolical. 



Pecuniary. 



Earnest shoulfl 

 be retained by 

 the vendor. 



The old rule. 



Effect of 

 earnest under 

 s. 4 of the 

 Sale of Goods 

 Act, 1893. 



(s) Code Ciyile, 1590; Vinnius, 

 Com. in Inst. 1. 3, tit. 324. See 

 also Mowe y. Smith, 27 Ch. D. 89, 

 100,101; 63 L. J., Ch. 1055; 50 

 L. T., N. S. 573 ; 32 W. E. 802. 



(<) 29 Car. 2, c. 3, s. 17. 



(?«) BlenkinsopY . Clayton, 7 Taunt. 

 597; 18E. R. 602. 



{x') Bracton,lib. 2, cap. 27, fol. 62. 



(y) Dyer v. Cowley, 17 L. J., 

 Q. B. 360. 



(z) Bach V. Owen, 5 T. E. 409. 



