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verbal contract for the sale of goods, a memorandum, otherwise a good satisfaction of the statute, was made, and was held by Baron Parke and the rest of the Court not to remove the effect of the statute on the contract in that action. This case was considered an anomaly by Willes, J., in Gibson v. Holland; and before its decision a dictum was made by Maule, J., in Fracker v. Tomlinson, to the contrary. The case is, however, undoubted authority. In the case of Tisdale v. Harris,2 the same point was decided as to part payment made after action brought, Shaw, C. J., giving the decision. And the writer has been. informed on reliable authority that the same point has been affirmed by the Supreme Court of Ohio, in a case not yet reported.

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The rule of pleading is clearly settled on authority; the case of Anonymous, and the decision of Yates, J., in Williams v. Leper, holding explicitly that under the general issue it can be shown that the statute has not been complied with; and in Leaf v. Tutton, where the only question before the court was whether a special plea of the statute was or was not bad for argumentativeness, it was expressly decided that it was, and that the general issue was the only way of pleading the statute. In equity the bill is demurrable if it appears on its face that the statute is not satisfied, but not if it does not appear either to be or not to be satisfied.6

But whether the common-law rule of pleading is not really an anomaly generated by the disfavor with which the judges received the statute of frauds, is a question worthy of consideration. The reasons given by the court in the first case 7 in which the rule was laid down, lend color to such a suggestion. "When the thing is originally made by act of Parliament and required to be in writing, it must be pleaded with all the circumstances required by the act, as in the case of a will of land it must be alleged to have been made in writing; but where an act makes writing necessary to a matter where it was not so at common law, as where a lease for a longer term than three years is required to be in writing by the statute of frauds, it is not necessary to plead the thing to be in writing, though it must

1 1 M. & Gr. 772.

4 3 Burr. 1890.

2 20 Pick. 9.

5 10 M. & W. 393.

6 Wood v. Midgeley, 5 De G., M. & G. 41.
7 Anonymous, 2, Salk. 519.

8 2 Salk. 519.

be proved to be so in evidence." Such a distinction cannot be tenable on principles of pleading, which deny the admissibility of evidence of the happening of any issuable fact, which has not been alleged in the pleadings to have happened; and that the fact that the "thing was in writing" is an issuable fact, itself to be proved, is shown by the facts that it has to be alleged in case of wills (and matter of evidence need never be alleged), and that "it must be proved to be so in evidence" in place of, it must be proved by such written evidence. As the pleading of the section is now almost always regulated by statute, the proposition, if not an anomaly, is not of great importance in determining the effect of the section.

The sixth proposition cannot be said to have been definitively established. The decision of Bailey v. Sweeting, to be sure, involved that rule of law; but as the point, though taken by counsel in the argument, was not noticed by the court in the decision, it cannot be cited as a conclusive decision to that effect. The decision involved it, because the vendee had to pay the full price for the goods sold, though part had been injured between the verbal agreement and the satisfaction of the statute. The case of Vincent v. Germond1 would seem to be a like decision; in that case four oxen were verbally sold, and, by the terms of the contract of sale, were to remain with vendor at the risk of the vendee till they were taken away by him; while they were in the vendor's possession at the risk of the vendee, one died; the vendee took away the other three, and refused to pay for the fourth, on the ground that the statute had not been satisfied before his death. The court held that he must pay for all four, not, however, on the ground that the satisfaction of the statute related back to the verbal agreement, but on the ground that the subsequent removal of the three was sufficient evidence to warrant the jury in holding that there had been an actual receipt of the four when the contract was made, and that the vendor consequently held as bailee for the vendee. (See the case of Seymour v. Davis,2 that such was the decision of this case, and that the construction put upon it by Mr. Browne, § 339, is not the true one.) In the decision of Felthouse v. Bindley, Willes and Keating, JJ., p. 877, intimated that such a fiction of relation would apply;

1 11 Johnson, 283.

2 2 Sandford, 239, 243.

and analogous cases of the application of this fiction are found in cases where deeds delivered subsequently to a contract for the sale of lands relate back to make valid all dispositions of the land made by the grantee between the sale and the execution of the deed.1

It appears, then, from an examination of the cases that in England, that of the first six propositions, the fourth has been termed anomalous, and that there is good reason for giving the same character to the fifth, but that all the others are firmly established.

According to the English law, then, Mr. Smith's explanation of the 17th section is untenable; the first (Allen v. Bennett), the second (Bailey v. Sweeting, Buxton v. Rust), and the third (Gibson v. Holland) propositions being antagonistic to it. The adoption of Mr. Browne's construction requires that Bell v. Bament should be considered an isolated case ;2 while, if the procedure construction is adopted, the rule of pleading settled by the English cases is an anomaly. Between these two last constructions, then, the question is an open one in England.

In America, on the other hand, the question as to all three constructions is an open one. One only of the first three propositions (and these were the ones which really settled the question against Mr. Smith in England) has arisen on this side of the Atlantic. That one is the third; and on that proposition the American authorities are in some conflict. And though the weight of authority is unquestionably in favor of following Allen v. Bennett and Justice v. Lang, yet the very judges who so decide, seem not to be aware of the consequences of that decision; for the same judges hold the 17th section to be part of the lex loci (Denny v. Williams), and declare that till the statute is satisfied the agreement is no contract at all (see Marsh v. Hyde3), and in no case in America, known to the writer, has a judge explicitly put forward the procedure construction, or that of Mr.

1 Jackson v. Beel, 1 Johnson Ch. 81; Viner's Ab. Relation, E 6; and, in the case of the enrolment of bargain and sale deeds under 27 Hen. VIII. c. 16, Br. Faits Enrol. 9; Comyns's Digest, Bargain and Sale, B 9, p. 202.

2 The value of the rule adopted in this case is questionable, as it merely makes it necessary for the plaintiff to bring a new action, and really affects only the liability for costs in the first. - EDS.

3 Justice v. Lang, 42 N. Y. 535; Justice v. Lang, 2 Rob. 333; Justice v. Lang, 52 N. Y. Allen J. 323, 325.

4 42 N. Y. 535.

5 3 Gray, 331, &

333.

Browne. In this conflict of authority, an examination of the three constructions on principle becomes necessary.

I. In which of the three ways does the phraseology of the section lead one to suppose that the legislature intended that the contract should be affected?

"No contract shall be allowed to be good" may mean either no contract shall be valid, or no contract shall be allowed to be good at nisi prius, no contract shall be actionable. It is, however, hard to understand how the words, "no contract shall be allowed to be good," "except the buyer shall accept part of the goods," or "give something in earnest," "or in part payment," or "that some note" "be made and signed," can be interpreted to mean no contract shall be actionable, unless proved by the facts. that part of the goods have been received and accepted, or that part payment has been made, or by evidence of the contract in writing. Whether "signed by the parties to be charged parties defendants to be charged in that action, contemplating more than one, or parties to be charged in any action, both plaintiff and defendant, is material in a choice between the procedure and Mr. Browne's constructions on the one hand, and that of Mr. Smith on the other; for Mr. Smith's construction is tenable only if the memorandum, which removes the effect, has to be signed by both plaintiff and defendant.

means

Mr. Browne, § 115, n., maintains that the last of the three interpretations of the words, "no contract shall be allowed to be good," is the correct one, on the ground that "there seems to be no reason to attribute"" to this phraseology any force, or draw from it any inferences, different from those which attend the construction of the phraseology of the 4th section, no action shall be brought,'" and on the ground "that the remaining portions of the two sections being very similar, and the policy of the two being very clearly the same, we should not be justified in laying much stress upon the change of phraseology." And see § 365, to the same effect. But this argument proceeds on the assumption that the 4th section is to be construed as mere matter of evidence. This assumption is, with submission, erroneous, but the true construction of that section is, it is conceived, that it lays down a rule of procedure as Mr. Justice Williams explained the 17th section to do in Bailey v. Sweeting, and as Mr. Justice Gray, in Haynes v. Nice, explained the analogous one in Massa

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chusetts to do. Consequently this argument can be adduced in favor of the procedure construction, and in favor of that alone. The change of phraseology, it might well be contended, is significant, since there is a like change in the other similar parts of the two sections. Not only do we find in place of the words of the 4th section, "no action shall be brought," "no contract shall be allowed to be good" in the 17th section; but in place of signed by the party," we have "signed by the parties." Now, inasmuch as the effect of invalidity could not have been removed by a non-mutual formality, the fact of the change in phraseology from party to parties, i. e. from a non-mutual in the 4th to a mutual formality, in other respects the same, in the 17th, is significant of a studied choice of words in the change from "no action shall be brought " to "no contract shall be allowed to be good;" and we should perhaps be justified in concluding that the effect of the two sections, like their phraseology, was intended to be in contrast.1

II. Next after an interpretation of the phraseology, a consideration of the three constructions with reference to the policy of the statute, alone remains. Which construction best remedies the evils aimed at by the legislature, and at the same time escapes inflicting others, which, but for the statute, would never have arisen?

The evils aimed at were "the prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and the subornation of perjury."2

Mr. Smith's construction is the most simple, and it has a scientific consistency, which is lacking somewhat, perhaps, in the others; and in this respect, as well as in others, that according to it, the mutual character of contracts is not lost, while it is by the other two constructions. But the frauds would be as well prevented by the procedure construction, and that with very many less evil results than would attend an enforcement of Mr. Smith's construction. In both, no title passes (as to third persons), till the acts of deliberation which the legislature

1 The wording of the Massachusetts statute is singularly perplexing: first we have "no contract shall be good or valid," - phraseology clearly indicating Mr. Smith's construction; but secondly we have “signed by the party,” — phraseology consistent with the procedure construction or the evidence construction alone. Mass. Gen. Sts. 105, § 5.

2 Preamble to Statute of Frauds, 29 Car. II. c. 3, § 1.

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