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thought wise to require are observed, and no action can be maintained till then; the principal differences between the two constructions are, that if a party do perform those acts unwittingly (either after a repudiation or in a letter which it was not intended the other should see), or if one observe them, though the other does not, the statute is satisfied on the procedure, but not on Mr. Sunith's construction. It is unquestionable that in such cases the objects aimed at are attained ; suclı observation of the formalities shows that no fraud is “ being endeavored to be upheld by perjury,” as conclusively as their observation does in those cases in which by either construction the statute is satisfied. Yet, according to Mr. Smith's construction, in such cases a contractor could refuse to carry out the contract, thus clearly proved to have been made by him, and so use the statute to commit a fraud.
Though Mr. Browne's construction would remedy those evils, which Mr. Smith's. construction would not, it would inflict others, which but for the statute would never arise, and must consequently, so far as convenience goes, be considered a less desirable construction than either of the other two. contract for the sale of goods, when the statute has not been satisfied, according to Mr. Browne's construction of the 17th section, it depends on a future event whether or not it can be proved that the title passed when the contract was made ; this future event is the creation or non-creation of the additional evidence of this former contract required by the section to prove such a contract. If the evidence is made, it can be used to prove that by the contract the title to the goods passed when the contract was made. If, for instance, a vendor should consign goods to the vendee, which had been verbally sold without one of the other three formalities having happened, and those goods should be injured in transit, the consignor could recover for that loss before the statute was satisfied, because the carrier could not prove that the title had passed out of the consignor; after a satisfaction of the statute the consignee could prove that he owned the goods at the time of the loss, and he also could recover for the same loss; the judgment against the carrier by the consignor being inadmissible, because res inter alios acta, in the second suit. Take another example: let us suppose that after a verbal contract of sale, unattended by any of the three
formalities which take the place of a note in writing, the vendor sells and delivers the same chattel to a second vendee, who takes possession of it, and that the first vendee then sues the second for a conversion of the chattel. According to Mr. Browne's construction, as a matter of fact, the title passed to the first vendee by the verbal agreement; but it cannot be proved that it passed for want of the evidence required by the 17th section. It is absolutely within the power of the vendor to make the requisite evidence, and so allow the first vendee to prove that the goods were his, or, by not making that evidence, prevent the first vendee from recovering.
These examples show that according to this construction the rights of a person, a stranger to the contract, as to goods verbally sold, would depend upon the caprice of one or both of the parties to the contract. And there is no escape from this atrocious proposition, if Mr. Browne’s construction is adopted. For according to it the requisites of the statute are mere matter of evidence; and there is no rule of law by which that evidence would not be admissible, if the rights of third persons were involved, as well as when a dispute arose as to the rights of the parties to the contract: and, if admissible, there is no rule of law which would prevent the use of that evidence to prove that the title to the goods did pass as against a stranger to the contract, who had acquired rights to the chattel between the formation of the verbal agreement and the satisfaction of the statute.
But the procedure construction is not attended by this fatal objection. According to that construction, the title does not pass as matter of fact when the verbal agreement is made, but only when the statute is satisfied, when the contract becomes directly actionable. It is by a fiction of law (by making the satisfaction of the statute relate back to the verbal agreement) to carry out the intention of the parties, that the title is made to pass at the date of the verbal agreement. As this is effected only by a fiction, and as a fiction can never be adduced to prejudice the rights of third persons 1 when the rights of such persons are in question, the title passes only when the statute is satisfied, and consequently as satisfaction of the statute made subsequently to a verbal agreement cannot be used to affect the intervening rights of third persons.
1 Couk v. Tullis, 18 Wall. 332.
With submission, then, the 17th section, construed to lay down a rule of procedure,' effects the objects aimed at by the legislature much better, and with fewer evil results, than that section would, if either Mr. Browne's or Mr. Smith's construction of it were adopted.
What, then, is the conclusion reached by this consideration of the three constructions on authority, interpretation, and the policy of the statute ?
It can be fairly said that by authority Mr. Smith's construction has been absolutely rejected so far as the English courts are concerned, and that either the procedure or Mr. Browne's construction has been adopted in that country ; but which of these two is an open question ; for the adoption of the latter involves the rejection of Bill v. Bament, while the adoption of the former requires that the rule of pleading the statute should be considered an anomaly. In America, though the weight of authority is strongly in favor of the English decisions, there is enough authority for Mr. Smith's construction to make the question as to all these an open one.
Secondly, a fair interpretation of the phraseology demands, it is submitted, the adoption of the procedure construction or of that of Mr. Smith, and rejects the construction advanced by Mr. Browne.
And finally, so far as the policy of the statute is concerned, the procedure construction is, with submission, pre-eminently the correct one.
And it would hardly be denied this consideration outweighs any argument, for Mr. Smith's construction, derived from the somewhat ambiguous phraseology of the 17th section considered alone and in connection with that of the 4th section, and any argument for Mr. Browne, derived from the rule of pleading.
In conclusion, then, it is submitted that the effect of the 17th section of the English statute of frauds is to take away from a valid contract all remedy, while its provisions are not complied with; but that its effect is not to invalidate the substantive part of the contract, and hence, 1. That the section is part of the lex fori. (Denny v. Williams, semble, contra.) 2. That as to third parties its effect is to prevent the title to the goods verbally sold passing,
1 Mr. Justice Williams, in Bailey v. Sweeting.
or any other indirect as well as direct enforcement of the contract, while its provisions are not complied with, so far as the rights of persons not parties to the contract are concerned. (Felthouse v. Bindley, semble ; Stockdale v. Dunlop, semble ; Carrington v. Roots.) That its effect is to leave the formation of the contract and all ensuing rights, except the right of action, as at common law. (Marsh v. Hyde, semble; Bloxsome v. Williams, semble ; Denny v. Williams, semble, contra.) Consequently, 3. When made, the contract can be dissolved only as at common law, though the statute is not satisfied, i.e., though the contract is not actionable. (Buxton v. Rust, Bailey v. Sweeting, Wilkinson v. Evans.) 4. Consequently the contract can be enforced against the signer of a memorandum of a verbal agreement, though it could not be enforced against the other party to the contract, because he had not made a written admission of it. (Allen v. Bennett, Justice v. Lang ; 1 Justice v. Lang; 2 Justice v. Lang, contra.) 5. Consequently, when a memorandum is made, the contract becomes immediately actionable, without the communication of that fact to the other party. (Gibson v. Holland.) 6. That its effect is not to destroy the intention of the parties, and consequently, when the satisfaction takes place after the formation of the verbal agreement, it relates back (between the parties) to that agreement (Felthouse v. Bindley, semble), so that, if the goods are in the mean time injured, the loss would fall on the vendee as between vendor and vendee (Bailey v. Sweeting). 9. But this being by a fiction, if the loss was occasioned by a third person, the right of action for that loss would be in the vendor, because the title does not actually pass till the statute is satisfied. (Morgan v. Sykes ; Stockdale v. Dunlop, semble ; Felthouse v. Bindley, semble.) 10. That, as a non-compliance with the statute takes away a right of action, so a compliance with the statute alone can give a right of action, and must therefore take place before action brought. (Bill v. Bament, Tisdale v. Harris.) And, 11. That, if the satisfaction takes place on Sunday, it is void, and the contract is still not actionable. (Beaumont v. Brengeri, semble.) 12. That the statute should be specially pleaded by the defendant.* (Middlesex Co. v. Osgood, Libby v. Downey.)
1 42 N. Y. 535.
2 2 Rob. 333.
8 52 N. Y. 325.
6 5 Allen, 299.
THE CRIMINAL PRACTICE OF SAXONY.1
THE jurisprudence and practice of Saxony are reputed to be the most scientific and complete in the German States; with lawyers, however, rather than laymen, who have been heard to complain of its costs and delays. All proceedings were formerly carried on in writing and in private ; but in the year 1856 the criminal courts were opened to the public, and the examination of witnesses made oral, and in 1868 the institution of the jury was introduced in criminal cases. In civil cases none of these changes have been made. As will be seen, its introduction is far from transforming the courts where it is in use after our own model. It has been referred to in the debates of the German Legislature as productive of immense benefit; on the other hand, of the two innovations, publicity and oral examinations are rated much the highest by members of the profession. Probably the difference is between the political and professional view.
Saxony is a small country of itself; but the changes and present condition of its laws represent faithfully enough the gradual democratization which is going on in Europe, and already extending into Russia and down the course of the Danube, is slowly but constantly bringing new regions, languages and nations within the reach of western civilization.
Among the first things which the Germans thought it necessary to do, in order to be one people, was to have the same laws. The criminal code was first enacted and went into operation throughout the empire in 1871. The preparation of the general civil code has presented more difficulties; and, although an immense amount of work has been expended on it, it is not yet, but is soon expected to be, enacted. Saxony alone of the German States possesses a civil code of law, which was independently adopted in 1863–1865, before her absorption into the empire.
| The following article is the result of some months' attendance, off and on, upon the criminal courts of Dresden, Saxony, partly to observe the proceedings and partly to learn the language. The writer's attention was directed not so much towards a scientific appreciation of the law is to the practice, with the view of noting such fruits as might be of value in our own practice, or furnish valuable suggestions.