decisions to the propositions here enounced, and it is safe to assume, as a general rule, that whenever no fact has been proven showing an abandonment by the vendor of his lien, no actual receipt by the purchaser has taken place. This has been as strongly insisted on in the latest as in the earliest cases. The principal decisions to this effect are referred to in the note. (c) Dodsley v. § 188. It may be useful here to advert to one case in which the circumstances were very peculiar. In Dodsley v. Varley (d) wool was bought by the defendant from the plaintiff. The price was agreed on, but the wool would have to be weighed. It was sent to the warehouse of a person employed by the defendant, was weighed, and packed up with other wools in sheeting provided by the defendant. It was the usual course for the wool to remain at this warehouse till paid for, and this wool had not been paid for. The defendant insisted that the vendor's lien remained, and that the wool therefore had not been actually received by him as purchaser. But the court held that the property had passed, that the goods had been delivered, and were at the risk of the purchaser. In relation to the vendor's right, the court said: "The plaintiff had not what it called a lien, determinable on the loss of possession, but a special interest, sometimes, but improperly, called a lien, growing out of his original ownership, and consistent with the property being in the defendant. This he retained in respect of the term agreed on, that the (c) Howe v. Palmer, 3 B. & A. 321; Tempest v. Fitzgerald, 3 B. & A. 680; Carter v. Toussaint, 5 B. & A. 855; Baldey v. Parker, 2 B. & C. 37; Smith v. Surman, 9 B. & C. 561; Bill v. Bament, 9 M. & W. 37; Phillips v. Bistolli, 2 B. & C. 511; Hawes v. Watson, 2 B. & C. 540; Maberley v. Sheppard, 10 Bing. 101; Holmes v. Hoskins, 9 Ex. 753; Cusack, v. Robinson, 1 B. & S. 299; Castle v. Sworder, 29 L. J. Ex. 235; S. C. 30 L. J. Ex. 310, and 6 H. & N. 832; Morton v. Tibbett, 15 Q. B. 428, and 19 L. J. Q. B. 382; Russell v. Minor, 22 Wend. 659; Rathbun v. Rathbun, 6 Barb. 98; Brand v. Focht, 3 Keyes, 409; Bailey v. Ogden, 3 John. 399; Jackson v. Watts, 1 McCord, 288; Marsh v. Rouse, 44 N. Y. 643. Upon an agreement for the sale of merchandise and payment therefor by a sat isfactory note, the purchaser examined the merchandise, had it weighed, marked with his initials, and piled up by itself in the seller's warehouse, to be taken away upon payment for it or giv- Safford e. ing a satisfactory note for its McDonough. price. The purchaser never complied with these terms, and the seller refused to allow him to take the merchandise away, claiming a lien upon it for its price. After remaining for several months it was destroyed in the warehouse by fire. It was held that there was no such delivery of the goods as to constitute the seller a bailee for the purchaser. Safford v. MeDonough, 120 Mass. 290.] (d) 12 Ad. & E. 632; [Spencer v. Hale, 30 Vt. 314; Dows v. Montgomery, 5 Robertson, 445.] goods should not be removed to their ultimate place of destination before payment." (d) It is plain that there is nothing in this case which conflicts with the rule, that there can be no actual receipt by purchaser while vendor's lien continues, for the court held that the lien was gone. It may, however, be remarked, that the effect attributed by the court to the special agreement, that the goods should remain in the defendant's warehouse without removal till paid for, is much greater than was accorded to a similar stipulation in the case of Howes v. Ball, (e) where Howes v. the question was raised in a more direct form than in Ball. Dodsley v. Varley. In this last mentioned case, where the litigation was between the vendor and the administrator of the deceased purchaser, the court held that the property had passed in the thing sold, and that the special stipulation between the parties might, perhaps, amount to a personal license in favor of the vendor to retake the thing sold, if not paid for at the expiration of the credit allowed; but that such license could not be available. against a transferee of the thing, as a sub-vendee, or the administrator of the vendee. (f) (d) [Ladd J. in Pinkham v. Mattox, 53 it was agreed that the machine should reN. H. 600.] main the property of the plaintiff until Part payment. 192 Agreement to set off debt due to the buyer 193 Earnest and part payment distinct. § 189. THE giving of earnest, however common in ancient times, has fallen so much into disuse, that the two expressions in this clause of the statute, "giving something in earnest" and "giving something in part payment," are often treated as meaning the same thing, (a) although the language clearly intimates that the earnest is "something" that "binds the bargain," whereas it is manifest that there can be no part payment till after the bargain has been bound, or closed. (b) Earnest may be money, or some gift or token (among the Romans usually a ring) given by the buyer to the vendor, and accepted by the latter to mark the final conclusive assent of both sides to the bargain; and this was formerly a prevalent custom in England. (c) Examples are found in Bach v. Owen, (d) in 1793, and Goodall v. Skelton, (e) in 1794, in the former of which a halfpenny, and in the latter a shilling, was given in earnest of the bargain. (a) ["As used in the statute of frauds, 'earnest' is regarded as a part payment of the price." Howe v. Hayward, 108 Mass. 54, 55, Chapman C. J.] earnest must be money or money's worth; in other words, something of value, though the amount be immaterial." Browne St. Frauds, § 341; Artcher v. Zeh, 5 Hill (b) [See Bissell v. Balcom, 39 N. Y. (N. Y.), 200.] 275.] (c) Bracton, 1, 2, c. 26. [Mr. Browne says: "It seems to be agreed that the (d) 5 T. R. 409. Either suf fices to make the contract. § 190. Whether giving earnest has the effect of passing the property in the thing sold from vendor to vendee will be considered in a subsequent part of this treatise, (f) but for the present we are only concerned with the question of its effect in giving validity to a parol contract. The giving of earnest, and the part payment of the price, are two facts independent of the bargain, capable of proof by parol, and the framers of the statute have said in effect that either of them, if proven in addition to parol proof of the contract itself, is a sufficient safeguard against fraud and perjury to render the contract good without a writing. (9) good. must be given to § 191. The former of these facts, that of giving something in earnest to "bind the bargain," has been the subject of Something only one reported case, that of Blenkinsop v. Clay- actually ton, (h) in which the buyer drew a shilling across the vendor's hand, and which the witness called "striking earnest. Blenkinsop off the bargain" according to the custom of the country; v. Clayton. but as the buyer then returned the coin to his own pocket, instead of giving it to the vendor, the court necessarily held that the statute had not been satisfied. There is another case, (i) Goodall v. in which the plaintiff was nonsuited in an action on a contract of sale, where a shilling earnest-money was actually given by the buyer to bind the bargain, but the case turned entirely on the form of action, which was for goods sold and delivered, under (f) Post, book II. ch. iv. (g) [A verbal stipulation to give and to receive something in earnest to bind the bargain, or in part payment, or a verbal promise to make a note or memorandum in writing necessary to exVerbal stipulation to give empt the agreement from the earnest. operation of the statute, is as much within the statute as is the agreeinent or contract, taken as a whole; and a note or memorandum in relation to giving something in earnest to bind the bargain, or in part payment, which is insufficient in itself to take the contract out of the statute, is also insufficient to make the contract binding upon either party. Thus it may be stated as a general proposition, that where the parties in making a contract omit to do anything which the statute of frauds requires, the consent of both Skelton. is necessary to supply the part omitted. (i) Goodall v. Skelton, 2 H. Bl. 316. circumstances where the court was of opinion that there had been no delivery. A count for goods bargained and sold would no doubt have been sustained. Part pay § 192. On the subject of part payment, there is but one important decision under this clause of the statute; but the ment. cases which have arisen under analogous clauses in the statutes of limitations and the bankruptcy acts may be considered with advantage in this connection. (g) debt due to § 193. An agreement for the purchase of goods exceeding 101. Agreement in value was made with the understanding, and as part to set off a of the contract, that the vendor should deduct from the the buyer. price the amount of a debt previously due by him to the purchaser. The vendor then sent the goods to the purchaser with an invoice charging him with the price, 207. 188. 11d., under which was written," By your account against me, 47. 148. 11d." The purchaser returned the goods as inferior to sample. It was contended, on behalf of the vendor, who brought an action for goods sold and delivered, that this credit of 47. 148. 11d. was a part payment of the price of the goods, sufficient to take the case out of the statute. Held, not to be so. Platt B. said: "You rely on part of the contract itself, as being part performance of it." Pollock C. B. said: "Here was nothing but one contract, whereas the statute requires a contract, and if it be not in writing, something besides." Parke B. said: "Had there been a bargain to sell the leather at a certain price, and subsequently an agreement that the sum due from the plaintiff was to be wiped off from the amount of that price, or that the goods delivered should be taken in satisfaction of the debt due from the plaintiff, either might have been equivalent to part payment, as an agreement to set off one item against another is equivalent to payment of money. But as the stipulation respecting the plaintiff's debt was merely a portion of the contemporaneous contract, it was not a giving something to the plaintiff by way of earnest or in part payment then or subsequently." Alderson B. said: "The 17th section of the statute of frauds implies that to bind a buyer of goods of 10. value without writing he must have done two things: first, made as owner of the trees. Held, that a payment on account to M. by B. took the contract out of the statute of frauds. Brady v. Harrahy, 21 U. C. Q. B. 340; Furniss v. Sawers, 3 Ib. 77.] (g) [A. agreed to sell B. 500 cords of wood at 3 shillings 9 pence per cord. M. had contracted to cut this wood for A. at 2s. 6d. per cord, and B. was to pay M. the 2s. 6d. and the plaintiff A. 1s. 3d., |