The cow, for which this action, was.'brought, was' delivered by the plaintiff to the defendant, in part payment 0f a piece of land, the contract for the purchase .of. which was by paroi, The defendant,, it appears,, has always .been .willing, and has offered to give a conveyance of the land, pursuant to his- contract, but the plaintiff declined receiving, it,' and now. brings his action to.-recover back what lie has paid upon his contract. The action cannot certainly be .sustained, under the circumstances disclosed by the return ; for the cow hadbecome forfeited according to the plaintiff ’s own -confession. But the action would, not be sustainable, independent of this. The contract was’not illegal At its inceptionj although hot binding upon the parties but payment of part of the purchase money was such par£ performance as to become binding on the defondant, and a court of equity wrnuld compel a conveyance, The judgment must,, therefore, be affirmed. .. . .
Judgment -affirmed,,