Page images
PDF
EPUB

man residing and trading in an enemy's country(h), or residing there merely without carrying on trade (i). But if an Englishman resides in a neutral state, he may lawfully exercise the privileges of a subject of that country by trading with a nation at war with England (k), although if he were resident here, such trading would be illegal (I). And a neutral subject may maintain an action on a contract entered into with a British subject in an enemy's country (m).

Residence by a British subject in an enemy's country, does not disqualify him from entering into contracts, if such residence is involuntary; as where he is a prisoner of war (n). It seems to be doubtful whether an alien enemy, a prisoner of war in this country, would be disqualified (6): but a neutral, taken prisoner on board an enemy's ship, was allowed to sue on a contract made by him on the voyage to Great Britain (p).

(h) M'Connell v. Hector, 3 B. & P. 113; O'Mealey v. Wilson, 1 Campb. 482 ; Willison v. Patteson, 7 Taunt. 439.

(i) De Luneville v. Phillips, 2 N. R. 97. [But see Roberts v. Hardy, 3 M. & S. 533.]

(k) Bell v. Reid, 1 M. & S. 726.
(1) Potts v. Bell, T. R. 548,- Post.
(m) Houriet v. Morris, 3 Campb. 303.

(n) Daubuz v. Morshead, 6 Taunt. 322; Antoine v. Morshead, 6 Taunt. 237.

(c) Maria v. Hall, 1 Taunt. 33. [No judgment was ever given in the case.]

(p) Sparenburgh v. Banatyne, 1 B. & P. 163.

When the disability is removed.

2. In what cases the disability is removed.

If an alien enemy comes here sub salvo conductu, his disability is removed (9); so, if an alien friend come here by licence and live under the protection of the king, and a war breaks out during his residence, he may nevertheless maintain an action (r). But if he pleads such protection in the latter case, he must prove that the king has sanctioned his stay after the commencement of hostilities (s), and not merely that his residence has been acquiesced in without molestation (t).

An alien enemy may also sue on a contract arising out of a trading adventure which has been legalized by a licence granted by the crown (u). And he may sue, at the conclusion of the war, on a subsequent promise to pay; for, though the original contract could not be enforced, there is a moral obligation sufficient to support the promise (x).

(9) Bac. Abr. Alien, D.
(r) Wells v. Williams, 1 Lord Raym. 282; S. C. 1 Salk. 46.
(s) Boulton v. Dobree, 2 Campb. 163.
(t) Alciator v. Smith, 3 Campb. 245.
(u) Vandyck v. Whitmore, 1 East, 475.-Post.
(x) Duhammel v. Pickering, 2 Stark. N. P. C. 90.

CHAP. III.

OF THE EFFECTS OF PARTICULAR STATUTES UPON

CONTRACTS OF SALE.

The various statutes, which affect contracts of sale, may be considered under the six following

heads :

I. The Statute of Frauds.
II. Statutes relating to the sale of Ships.
III. Statutes prohibiting the sale of particular

chattels.
IV. Statutes prohibiting sales on particular days.
V. Statutes relating to sales fraudulent against

creditors. VI. Statutes relating to sales and purchases by

bankrupts.

PART I.
OF THE EFFECT OF THE SEVENTEENTH SECTION OF THE STATUTE

OF FRAUDS UPON CONTRACTS OF SALE.

Frauds.

The 17th section of the Statute of Frauds (a) Statute of provides, that “no contract for the sale of any goods, wares, and merchandises, for the price of

(a) 29 Car. II. c. 3.

E

1

ten pounds sterling or upwards, shall be allowed
“ to be good, except the buyer shall accept part of
“ the goods so sold, and actually receive the same;
“ or give something in earnest to bind the bargain,
“ or in part payment; or that some note or memo-
randum in writing of the said bargain be made,
“ and signed by the parties to be charged by such
“ contract, or their agents thereunto lawfully au-
“thorised.”

The subject may be considered under the fol-
lowing heads :-
I. What contracts of sale are within the

statute.
II. What delivery and acceptance of the goods

are sufficient to satisfy the statute.
III. What is held to amount to earnest or part

payment.
IV. Of the note or memorandum required by the

statute.

Section 1.- What Contracts of Sale are within

the Statute.

Executory contracts.

Executory contracts. It seems to have been formerly held, that the statute did not extend to executory contracts in general. In the case of Clayton v. Andrews(6), a contract to deliver, within three weeks or a month, a quantity of wheat,

(6) 4 Burr. 2101.

9 Geo. IV.

which at the time was unthreshed, was held not to be within the statute. To remedy the inconvenience of such a construction, it was enacted by Lord Tenterden's Act(c), that the provisions of the 17th section of the Statute of Frauds“ shall c. 14, s. 7.

extend to all contracts for the sale of goods of " the value of ten pounds sterling and upwards,

notwithstanding the goods may be intended to be " delivered at some future time, or may not, at the " time of such contract, be actually made, procured,

provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.”

It was observed by Grose, J.(d) on the abovementioned case of Clayton v. Andrews that, if by executory contracts were meant contracts to be executed on a future day, the decision would be tantamount to a total repeal of the 17th section. Although that case had been overruled(e) long before the passing of Lord Tenterden's Act, a distinction was still recognised, in executory contracts, between cases, where the subject matter of the contract existed in solido, and cases where it had no substantial existence at the time, but required something to be added before it should be in the

(c) 9 Geo. IV. c. 14, s. 7.
(d) Cooper v. Elston, 7 T. R. 16.

(e) Ib.; Rondeau v. Wyatt, 2 H. Bl. 63; Alexander v. Comber, 1 H. B). 20; Garbutt v. Watson, 5 B. & A. 613; Hughes v. Breeds, 2 C. & P. 159.

« PreviousContinue »