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Proper form of action for breach of warranty iu exchange of chattels,

329 note
Warranty in exchange, infant not liable on, 15


Liability of husband's executor for debt of wife contracted since his

death, 29
Property in possession of bankrupt as executor or administrator, 128


Within Statute of Frauds, 50, 51
Exempted from stamp, 220, 434
Part executory and part executed, 248

Money had and received maintainable for breach of warranty, while con-
tract is executory, 331
Money paid on illegal contract may be recovered, while executory, 332 note
Executory contract for the transfer of share in ship, 81

FACTOR. (See Agent—Pledge.}

Agent within the Statute of Frauds, 74, 76

Where he exceeds his authority, 295

Or wrongfully delegates it, ib.

Payment to factor within the Factor's Act, 278

Who is an agent entrusted with goods within the act, 279

Debt due from factor may be set off by the purchaser, 280

Power of factor to pledge the goods of his principal, 296, 302

At common law, 296

By the Factor's Act, 297
Property in possession of bankrupt as factor, 128
Principal liable for the deceit of his factor, 327
Liability of factor for the loss of goods, 394
Joint factors liable for each other's acts, 400
Factor employed to sell cannot be the purchaser, 398, 429
Lien of factor, 403
When factor personally liable to third party, 406, 407

FAIR. (See Horses—Market-Overt.)

Selling of horses in fair and market-overt, 175
Fair on Sunday illegal, 85


Goods obtained on false pretences do not pass to bankrupt's assignees, 125
Property is not changed in goods so obtained, 136, 174
Trover will lie to recover goods so procured, 293, 294

FEME COVERT. (See Husband.)
Cannot contract in general, 25

Except for necessaries, 25, 26, 32

FEME COVERT—(continued.)

What are necessaries, 26
Or, unless the husband gives authority, SO
Either express or implied, 31
Liable on promise to pa; after husband's death, 31
When she may be treated as feme sole, 34, 35
Where husband has abjured the realm, 34
Or sentenced to transportation, 35
Or where divorce has taken place, 41
But not where the husband merely lives abroad, 34
Nor where the parties live separate, 40, 41
Nor where the wife trades as feme sole, 35
Sale by stranger in market-overt binds ferae covert, 168


Semble, not within Statute of Frauds, 56

They do not relate to interest in land withiu fourth section, ift.

They cannot be recovered as goods sold, 252

Unless severed from the freehold, 253
They can be considered chattels only for special purposes, 252
They do not pass to assignees of bankrupt, 125

FRAUD. (See DeceitFraudulent AlienationMoney had and received.)
Must be specially pleaded, 286
Fraud against vendee avoids the sale, 129
Puffing or fictitious bidding, 129, 148
Allowed, if notice given, 149

Unless the sale is declared to be without reserve, ib.
Fraudulent misrepresentation, 129, 132, 150, 320, 332
Although the goods be sold " with all faults," 130
Effect of stipulation that the goods are sold with all faalls, 131,
323, 352
Fraudulent concealment, 134, 160
Trickery and contrivance, 134
Imbecility or inebriety of purchaser, 135
Waiver of fraud, 133, 333
Fraud against vendor, 136, 151
False pretences, 136, 137
Threats or duress, 138
Fraud against third parties, 98,138, 168, 169
Fraud practised on person of weak mind, 43
Fraud between the party guaranteed and the principal debtor, discharges

the surety, 392
When fraud is a question of law or of fact, 99
Defence to action on bill or note, 135, 272

When the contract may be rescinded and trover for goods maintained, 294
Fraud against the partner of vendor, 365
When fraud against the carrier discharges his liability, 425

FRAUDS, STATUTE OF. (And see Guaranty.)
When written agreement of sale necessary, 49, 67
What agreements within the seventeenth section, 50
Executory contracts, 50—52
Sales by auction, 52,148
Sales of matured crops, 55
Sale of timber at per foot, 56
What agreements not within the seventeenth section.
Sales of stock, 53
Sales of public shares, 54
Sales of growing crops, ii.
Sales of growing trees or underwood, 56
Sales of fixtures, ib.
Contract to procure goods, ib.
Acceptance, within the statute, 57
Must be voluntary, 57, 58
Sample taken as part of the bulk, 58
Acceptance of part by way of whole, 59

But not if the contract is severed, 60'
Constructive, 60

By resale to sub-vendee, ib.
By assent to appropriation, ib.
By exercising ownership 61, 62

But acts of ownership must be unequivocal, 62, 63
By delivery to agent, 63

Provided he is duly authorized, 64
By giving an order on the bailee, ib.
Earnest, when sufficient, 65

Effect of, 65, 66
Part payment, when sufficient, 66
Note or memorandum within the statute, 67
Need not be one entire document, 67, 68

When several writings may be connected, 68, 433
When not, 69

Parol evidence inadmissible to connect them, 70
Must contain the names of both parties, ib.
Must specify the price, if any, 70, 71
Need not state a consideration, 72
Signature of parties, ib.

Signature of defendant sufficient, ib.
Signature in what part, 73
Signature by agent, 74

Authority need not be in writing, ib.
May be countermanded before execution, ib.
By auctioneer, 75, 160
By broker, 76

FRAUDS, STATUTE OK—(continual.)
Signature by agent.

By entry in broker's books, 76
By delivering sale-notes, ib.

Unless tliey materially differ, ib.

Or unless material alteration has been made without
authority, 77
Signature by one party does not bind the other, 78
So, signature by agent of one party does not bind the other, ib.


Sales fraudulent against creditors, void, 98
Bat good against the vendor, 98 note
Continuance of possession is a badge of fraud, 99
But not conclusive, 100
When consistent with the conveyance, 101
When conveyance is conditional, 102
When there is no fraudulent intention, 103
When the transfer is notorious, 104

Sale by sheriff, 104; or, by landlord, ib.; or, by public auc-
tion, ih.
When the creditor has notice, 104, 105



Selling of game legal, 91

GENERAL ISSUE. (See Pleading.)

When maintainable, 241—244
When the proper form of action, 241, 255 note
Specific appropriation by purchaser, necessary, 242
Not maintainable after a resale by vendor, 243
A verdict in this action does not bar the vendor's lien, 186
Damages, 241
Form of count, 437

GOODS SOLD AND DELIVERED. (See Credit—Delivery.)
When maintainable, 244, 255 note

Waiver of tort, 245

Against quasi vendee, 246. (See Credit.)

Where special agreement, 247—249

Not until time of credit has expired, 249

Proper form after credit has expired, 251, 252

Not for fixtures, 252

Nor fur crops, trees, &c, 253

Nor for the value of materials for building plaintiff's house, ib.
Proof of delivery, 253. (See Delivery.)
Damages, 264. (See Damages.)


Bad quality cannot be pleaded in tar, but may be given in evidence in

reduction of damages, 268
Defence by purchaser, 284, 289. (See DefencePleading.)
Form of count, 437

GUARANTY. (See Surety.)

Agreement to guarantee must be in writing, 377

Exempted from stamp, 219, 378

What agreements are within the Statute of Frauds, 377—379

What are not, 379, 380

Distinction between original and collateral undertaking, 379

Where a good consideration moves between the surety and the creditor,

Of the sufficiency of the writing within the statute, 381. (See Statute of

The consideration must appear on the face of the written agreement,

What is a sufficient consideration, 383
Guaranties are construed strictly, 384, 385
The terms must be strictly complied with, 38S

Express condition, ib.

Implied condition, ib.

Retrospective effect, 386
When the guaranty is continuing, 386—388
When non-continuing, 388, 389
How discharged, 389. (See Surety.)
Want of written agreement, how pleaded, 378 note
Replication, ib.


Formalities prescribed by statute in the buying of horses, to bar the real
owner, 174—177

The statute extends to horses wrongfully taken, as well as horses

stolen, 177
When a magistrate has jurisdiction to act, 177, 178
Warranty in the sale of a horse, 356. (See Warranty.)
Positive proof of unsoundness necessary, ib.
Whether sound or unsound is peculiarly a question for the jury, ib.
What is unsoundness, 357
Temporary injury, ib.
Lameness, ib.
Cough, id.
Crib-biting, 358
Badness of shape, ib.
Roaring, ib.
Chestfoundered, 359

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