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2. In what cases the disability is removed. when the if an alien enemy conies here sub salvo conductu,

disability is *

removed, his disability is removed (q); so, if an alien friend come here by licence and live underthe 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 (*), 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 (.r).

(q) Bac. Abr. Alien, D.

(r) Wells v. Williams, 1 Lord Rayra. 282; S. C. 1 Salk. 46.

(*) Boulton v. Dobree, 2 Campb. ] 63.

(t) Alciator v. Smith, 3 Campb. 245.

(u) Vandych 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.

The 17th section of the Statute of Frauds (a) statute of

v ' Frauds.

provides, that " no contract for the sale of any ** goods, wares, and merchandises, for the price of

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

E

"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 following 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 I.— What Contracts of Sale are within the Statute.

Executory 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 (b), a contract to deliver, within three weeks or a month, a quantity of wheat,

contracts.

(b) 4 Burr. 2101.

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 9Geo.1v. 17th section of the Statute of Frauds "shall "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, "or provided, or fit or ready for delivery, or some "act maybe 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. 14, s.7.

(c) 9 Geo. IV. c. 14, s. 7.

(d) Cooper v. Ehton, 7 T. R. 16.

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

state contemplated by the termsof the contract. Sir J. Osborne(/) bespoke a chariot, and when it was made refused to take it;—Pratt, C. J., ruled that this was not within the statute. The principle here laid down, though cited by the Court in the overruled case of Clayton v. Andrews as the ground of that decision, was distinguished from the latter case, and acknowledged to be good law(V). Again, where the contract was for the purchase of several oak pins, which were not made at the time but had still to be cut from the slabs, the case was held not to be within the statute (A). On the other hand it was decided, that a contract with a miller for the sale of flour, which at the time was not ground, was within the statute(i). There would be some difficulty in reconciling these decisions; and cases may readily be conceived, where the distinction between contracts strictly for the sale of goods, and contracts for work and labour to be added to materials, might give rise to questions of great nicety. The statute therefore seems to have wisely removed the distinction altogether. Auction*. Sales by Auction(lc). It was formerly doubted,

(J) Towers v. Osborne, 1 Str. 506.

(g) In Garbutt v. Watson, 5 B. & A. 614, Abbott, C. J., distinguished the case from Towers v. Osborne, observing, that in the latter " the chariot, which was ordered to be made, would never but for that order have had any existence."

(h) Groves v. Buck, 3 M. & S. 178.

(i) Garbutt v. Watson, 5 B. & A. 613.

(k) See post, of Auctions, Chap. v.

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