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statute; in the other, the statute is complied with, by proof of a virtual compliance with its provisions.

Where goods have been delivered according to a verbal order, and especially if they have actually come to hand, it is to be presumed from the justice of the thing, that the courts will be disposed to construe slight acts into an acceptance on the part of the vendee to take the case out of the statute, and the mere silence of the deliveree may reasonably afford an inference of acquiescence, where an equivocality of conduct, if allowed, must so plainly tend to the prejudice of the other party. The case cited by Mr. Justice Buller, in Tooke v. Hollingworth,(86) is an example of the sort of virtual and prospective acceptance, which has been alluded to above, though the point in the case was to another purpose. Lacy came to the house of the plaintiff, and bought a parcel of tobacco, to be paid for in ready money. This was in the morning. He left orders at his house for receiving the tobacco, and the same day went to France to avoid his creditors. After he was gone, the plaintiff's servant brought the tobacco to Lacy's house, but had no orders to make any demand of the money, but only to deliver the goods. And the question was, whether this was a complete sale, so as to vest the property in Lacy, or whether his bankruptcy between the sale and delivery, was such a fraud as avoided the sale by the non-payment of the money. Lord Chief Justice Eyre held, that the sale was made complete by the act of the plaintiffs, who, by delivery of the goods without demand of the money, vested the property in Lacy by their own assent as complete as a sale ab initio without ready money. Here, supposing the bankruptcy out of the case, and that the question had been between the vendor and vendee upon the statute of frauds, the contract must have been considered as completely executed by both parties-by delivery on the one hand, and acceptance on the other.

The statute may be satisfied by other modes of delivery and acceptance of the same virtual kind. Thus the property of a warehouse may pass by a symbolical delivery of the key thereof;(u)

(u) 1 Atk. 170.

(86) 5 T. R. 231. The name of the case was Has well and others v. Hunt and others, assignees of Lacy, cited from the MSS. of Mr. Justice Burnett.

and, without doubt, the acceptance of such key concludes the purchaser notwithstanding the statute.

Whether stock is com

prehended meaning of the 17th sec

within the

tion.

*Upon the strength of the words' accept and receive' in this *[184] 17th section, it has sometimes been contended in argument, that only corporeal and tangible things were the subjects of contract embraced within the meaning of that clause. Thus the coun sel, in arguing the case of Pickering v. Appleby,(x) which was an action for a sum of money for ten shares of the stock of the governor and company of the copper mines in England, sold to the defendant according to a parol agreement, contended, that where part of the goods cannot be delivered or accepted, it cannot be a contract within the statute, which extends only to such things, part whereof may be delivered or accepted. So in the subsequent case of Colt v. Netterville,(y) it was contended at the bar, that whereas the statute enacts, that no contract should be good for the sale of goods, wares, and merchandises of 107. price, unless part of the goods be accepted or earnest paid, or there was a note in writing, this showed that such goods were intended only as were capable of actual delivery; something that was corporeal, and not stock, which was incorporeal.

This reasoning, however, seemed to be answered with some effect by the counsel on the other side, who contended, that though the statute says, the contract shall be void, unless the buyer accept part of the goods or give earnest, or there is some memorandum in writing; yet that it was not necessary that the thing contracted for should, by that statute, be such as could be delivered into the other party's hands. That it was sufficient that part of the goods be accepted, or that there be earnest, or some memorandum in writing; and, therefore, if the goods cannot be delivered, if there be earnest or a memorandum in writing, it is sufficient. And it was asked, if in the case of a contract for goods imported in a ship, the contract should be held to be not within the statute, because the goods could not be delivered till the arrival of the ship. It was further, on the same side, observed, that the intention of the act was to prevent frauds and perjuries, which were equally dangerous in contracts for stock [185] as for land, or any other thing. And that, therefore, the inten

tion of the legislature seemed to be aimed at all contracts; and

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that it was the more probable, that stocks were meant to be included, because traffic in them was used long before that act. According to the report in Comyns, the judges being divided in opinion, the case was adjourned. But we learn from Lord Chancellor King, in Colt v. Netterville,(z) that the question came afterwards before all the judges of England, who were equally divided upon it, six against six.

But in the case of Mussell v. Cooke,(a) where the plaintiff had agreed with one Green, the defendant's broker, for 5,000. South Sea Stock, at 187 per cent, to be delivered about ten days after, and on the day appointed the plaintiff attended at the transfer of fice all day, but the defendant did not come, and the stock having in the mean time considerably risen, the defendant refused to transfer it; the plea of the statute seemed to Lord Chancellor Macclesfield to be good. This last-mentioned case of Mussell v. Cooke came on in Trinity term 1720, and was probably the case alluded to in Cruee v. Dodson,(6) wherein the court said, that it had been determined in Chancery, that bargains relating to stock are within the statute of frauds, and if earnest be not given are nuda pacta.

In Colt v. Netterville, the bill was for a specific performance of an agreement for transferring some York Buildings stock, stating that the defendant had agreed to transfer it to the plaintiff on a particular day therein mentioned, on the plaintiff's paying the money, and that the plaintiff agreed to pay so much per cent, and to accept the transfer, and did thereupon pay to the defendant 6d. earnest. To which bill the statute of frauds was pleaded, denying that the defendant received or accepted the 6d. as earnest. The Lord Chancellor considered the plea ás ill pleaded, and overruled [186] it on the ground, that *it was not material how or in what manner the defendant received it, but how the other paid it; upon the doctrine in Pinnel's case.(c) But his Lordship(d) seemed to incline against construing the 17th section of the statute to extend to stock, "adverting to the case of one Wolstonholme, who was declared a bankrupt as having East-India stock; but which decision was afterwards reversed by an act of parliament,(e) declaring that neither he nor any other person should be liable to bank

(2) 2 P. Wms. 307. (a) Prec. in Chan 533. in Chan in Lord King's time, 41 Trin. 11 G. 3.

(b) Select Cas.

(c) 5 Rep. 117.

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ruptcy, in respect of their having East-India stock; so that, his Lordship said, stocks, or the dealing in them, will not make a man liable to bankruptcy; nor do they seem to be wares, goods, or merchandise, within the intent of that clause."

It is to be observed, however, that the statute of 13 and 14 Car. 2, alluded to by Lord King in the above-mentioned case of Colt v. Netterville, had a view only to the protection of persons possessing shares in the stocks of certain companies, wherein they laid out their money merely by way of investment, and not for the purpose of trading therein; the dividends on which stock were made partly in goods, and which the parties sold again in order to turn their property to account; but having made themselves partners in a trading company, they had become in danger of being considered as traders. But the statute makes no mention of buying and selling the stock itself.

The mere buying, however, and selling of stock will not make a man liable to the bankrupt laws; but the reason given in the above-mentioned case of Colt v. Netterville, by Lord King, does not seem to be satisfactory, although it was adopted by the learned Author of the Commentaries.(ƒ) The better reason appears to be, that where the stock is held as an investment of property only, and not as a trading capital the buying and selling is a speculation whereby a man seeks to increase his fortune, but not a [187] trading whereby he seeks his living.(87) That stockbrokers or persons who buy and sell stock in the public funds by commission are within the statute concerning bankrupts, is a matter of no doubt; as a species to which the general term Broker' in the statute 5 Geo. 2, c. 39, clearly extends.(88) So that the argu(f) 2 Bl. Com. 476.

(87) Still less, as it seems, will the mere possession of stock expose a man to the operation of the bankrupt laws, unless, perhaps, as holder of a share in a trading company, he has made himself a participant of the profit and loss of such company, instead of receiving a fixed dividend. But by particular statutes, the holders of stock in many of the public trading companies, are declared not liable to be made bankrupts in respect of their stock. As members of the Bank of EnglandEast-India-South Sea-or English Linen Companies-The Royal Fishing Trade-The London Assurance, or Royal Exchange, &c.

(88) The words of which statute are, whereas persons dealing as bankers, brokers, and factors, are frequently entrusted with great sums

ment mainly relied upon by Lord King for considering contracts for stock as out of the statute of frauds seems to want support.

The preliminary topics treated of in the beginning of this chapter, have embraced many particulars which it would otherwise have been proper to have introduced in this part of the work. Among others, the subject of auctions has been much considered in discussing the questions respecting the form of agreement sufficient to satisfy the statute. This third part of the present chapter may, therefore, be properly concluded with a few cases and observations on the 5th clause of the 4th section of the statute

*[188] respecting agreements not to be performed within the year.

If the exe

pable of being perform

*The case of Fenton v. Emblers, executor of May,(g) furnishes cutory pro- the true, and, indeed, almost the whole exposition of this provision mise be caof the statute. It will be necessary to give a short statement of it for the sake of introducing Mr. Justice Dennison's observations. The doubt was upon the 5th count, which stated, "that the said William May, the defendant's testator, in consideration that the said Sarah, the plaintiff, would be and become the housekeeper is, suspend- and servant of the said William, and take upon herself the care

ed within the

year, though it is liable also to be, and in the event

ed for a much

tute.

longer peri- and management of his family, &c. undertook and promised to od of time, it is not within pay wages to the said Sarah, at and after the rate of 61. for one this branch year-and also, by his last will and testament, to give and bequeath of the stato the said Sarah a legacy or annuity of 167. by the year, to be paid to her yearly, &c. and that the said Sarah confiding in the said promise, entered into the said testator's service, and became his housekeeper, &c. and continued so for three years and 59 days; but that the said William had not performed his said agreement, and did not leave her such legacy and annuity," &c. and it appeared upon the evidence that there was such an agreement between the said William May and the plaintiff, but that it was by parol and not in writing. It appeared also that the plaintiff did enter into the testator's service, and continued in such service till his decease; but that the testator did not give her by his last will or otherwise, the said annuity of 16l. per annum, or any other an(g) 3 Burr. 1278.

of money, and with goods and effects of very great value; belonging to other persons; it is hereby further enacted, that such bankers, brokers, and factors shall be, and hereby are declared to be subject and liable to this and other the statutes made concerning bankrupts."

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