514 
SALE AND WARRANTV OF HORSES. 
Delivery. 
By the statute of frauds, i no contract for the sale of any 
goods wares, or merchandises, for the price of £10 sterling and 
upwards, shall be allowed to be good, except the buyer shall ac¬ 
cept part of the goods so sold, and actually receive the same, or 
give something as earnest to bind the bargain, or in part of payment; 
or that some note or memorandum in writing of the said bargain 
be made and signed by the parties to be charged by such con¬ 
tract, or their agents thereunto lawfully authorized/ 7 " 
«/ 
‘.‘T he statute in requiring such delivery, where no written memorandum 
HUH« , * See i m f Cl 5 ar y intended thereby, that there should be some 
stmct substantive act, independent of the bargain, and capable of proof, to 
corroborate the parol evidence of it. 1,0 
W herever, therefore, the execution of the agreement of sale rests only 
inft eri , and no time is fixed for such delivery, nor any thing been done 
thereupon by way of delivery on the one hand, or acceptance on the 
, er , was to give the purchaser a complete control over the subject of 
sale, without any lien on the part of the seller, it is competent to either 
party to refuse to complete the contract, upon giving timely notice of such 
intention, and before any act done; but if there be any act stipulated for 
} the puichaser, although contained in the terms of the contract, and as¬ 
sented to by the seller, as that the horse shall remain at livery in the 
possession ot the seller, and it is in consequence removed from the sale 
x 0 *? private one ’ Jt Wl11 be a sufficient delivery within the statute* 
Hut the mere payment of a small sum, as a shilling, by way of earnest 
of the°proper e ty med * Compllance with the statute , so as to effect a change' 
nppilr hethcr the horse is delivered or accepted, is a question which lies 
peculiarly within the province of a jury, upon all the circumstances 
proved, to determine. If the seller is ready to deliver, and waits only for 
the convenience of the purchaser, who in the mean time does anv act in- 
< icating an intention to exercise his right of ownership, such acts afford 
s rong evidence of acceptance on his part, and are for a jury to say, if not 
sufficient to constitute a binding and complete delivery. 
Exchange. 
“There is no difference between sales and exchanges, but a delivery on 
“T S,d f e , S , 1S essentl . al establish the contract. The consideration 
is the value ot the respective horses exchanged, as a pecuniary price; and 
the mere difference in value paid forming one entire consideration, it will 
not be a variance to state it as an entire pecuniary consideration.” 
Cfef* The Laws relating to 1 Warranty ’ in our next Number.] 
descrintioV "fnrTu** Vi ^ 1 Taantan ’ ' vhich was a contract of a similar 
assent^ anin SelIer *° ^ ee P the horse for the buyer at livery, to which he 
assented, and it was accordingly removed from the sale stable to the livery stable • 
bat as anv W „ e , r h ° f , 01,ini0n «“» *>»"Her thereby possessed them not as owner 
he had no 1 ! rt^^£» k “ P " 5 C ° U ' d he re,ainfd ,ha “' a " h °^ h 
