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the middle of October, however, the highest bad come down to its original value, and many to sixty per cent below par. The average fall of twelve of the leading lines was 64} per cent, and the rest could not have been disposed of gratis.
At this time the banks of the United States escaped any material derangement, as the foreign exchanges were in favor of the country, owing to the failure of crops and high price of food in Europe. We commence now a new financial era.
(To be continued)
RAILWAY TRAVEL IN ENGLAND—ITS INCONVENIENCES AND DANGERS.
The following taken from a late English paper possesses a little too much of the tragic to be agreeable. Why our beloved cousins should. persist in locking people up in a small box, without the possibility of communicating with any one outside of it, when traveling on a railway is more than we can comprehend. We trust that this bit of experience will lead them to adopt some of our Yankee modern improvements :
“A Mr. McLean and a Mr. WORLAND, took seats in a second-class carriage, by the Friday night express, from Liverpool to London. In the same compartment were a moody-looking Irishman and an elderly woman. He now and again talked to himself somewhat fiercely, and seemed to be threatening an invisible foe. Mr. McLean and Mr. Worland glanced at him, and then continued in friendly chat. Now, it happened that the man had been insane, and was rapidly growing insane again. A wild notion was fast acquiring the strength of a fixed idea. The two men, in familiar chat, were thieves planning how they could rob him, and he was resolving to be first in the field. As soon as the train had left Bletchley, the maniac drew a knife, and stabbed Mr. WORLand in the head. He drew back his arm to repeat the stroke, when Mr. McLean, who seems to have had his wits about him, knocked him back into his seat. Springing up, the maniac made another dash at the now insensible WORLAND; but here he was foiled again by McLean, who gripped his throat and his armed band, and a close combat began. All the time the train flew rapidly through the country. The woman sitting near the other window had done all she could to alarm the driver, by wasting her screams on the morning air, and now lay insensible from the effect of terror. The madman drew the blade of his knife through the fingers of McLean, and thrust with it wildly. WORLAND had now regained his senses, and he at once entered into the combat, getting behind the madunan, and throwing him down. The maniac's yells were louder than those of the woman; they were continuous, but neither guard por driver heard them. For 40 long miles this scene lasted, seen by none except those engaged in the strife; until a ticket-collector, hastily opening the door, saw the two gashed and haggard men bending over the exhausted madman on the blood-stained floor."
COMMERCIAL LAW. No. 6.
THE STATUTE OF FRAUDS.
OF ITS PURPOSE AND GENERAL PROVISIONS.
THE Statute of Frauds, so called, was passed in the 29th year of CHARLES II. (1677) for the purpose of preventing frauds and perjuries, by requiring in many cases written evidence of a contract. It is very generally in force in this country; but none of the various statutes of the different States copy the English statute exactly, and no two of them agres exactly in all their provisions. They do, however, agree substantially ; and we shall give in this article the prevailing and nearly universal rules for the construction and application of this statute. It is often of very great importance in commercial transactions. Those provisions which especially relate to commercial law are contained in the fourth and seventeenth sections.
By the fourth section, it is enacted that “uo action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of bis own estate; or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriages of another person; or to charge any person upon any agreement made upon consideration of marriage; or any contract for sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
By the seventeenth section, it is enacted that “no contract for the sale of any goods, wares, and merchandises, for the price of £10 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 of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized.”
The second and fifth clauses of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents an oral guaranty from being enforced at law; but if money be paid on one, it cannot be recovered back.
OF A PROMISE TO PAY THE DEBT OF ANOTHER.
Such a promise, although in writing, is not valid without a consideration; as we have already stated and illustrated in the article on Guaranty. And this necessity, and difficulty of distinguishing in many cases between an original promise, which need not be in writing, and a collateral promise, which must be in writing, has caused much litigation. By an original promise is meant a man's promise to pay bis own debt; a collateral promise is a promise to pay the debt of another man. If it be an original promise, it is not within the statute, and need not be in writing; but if it be a collateral promise, or a promise for another, it is within the statute. By the phrase within the statute, is meant that the promise is such as the statute applies to; and such a promise must be in writing, and signed by the party whom it is sought to charge upon the promise.
The best rules to determine whether there be a sufficient consideration, and also whether the promise be collateral and within the statute, or original, and so out of the statute, are those : 1. Where the guaranty is made at the same time with the original promise, and is an essential cause of the credit given to the original promisor, that credit is a consideration for the collateral promise. 2. Where the guaranty is given after the original promise is completed and credit given, there must be a new consideration for the guaranty. 3. If, after the new promise is given, the original promisor remains liable, and there is no liability on the part of the guarantor other than what arises from his guaranty, this is a collateral promise, and is generally within the provisions of the statute, and must be in writing
It is indeed very often difficult to say whether the promise of one to pay for goods delivered to another is an original promise, as to pay for one's own goods, or a promise to pay the
debt or guaranty the promise of him to whom the goods are delivered. The question may always be said to be: To whom did the seller give, and was authorized to give, credit ? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay
for them, then the question is, Did this other promise to pay for them as for his own goods ? for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them ? and then it is a promise to pay the debt of another, and must be in writing. If, on exainination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for him to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evi. dence, and, if confirmed by circumstances, strong evidence that this party was the purchaser. But it cannot be conclusive ; for the party not receiving the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer ; and, consequently, that his promise cannot be enforced if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transaction, and the intention of the parties.
The courts, both in England and in America, have often endeavored to illustrate this question. Thus, in an early English case, the court said : “ If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, “If he does not pay you, I will,' this is a collateral undertaking, and void, without writing, by the Státute of Frauds. But if he says, "Let bim have the goods, I will be your paymaster,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant.” So, in a case in Maryland, the court said: "If B gives credit to C for goods sold and delivered to him, on the promise of A to see hira paid,' or 'to pay for them if C should not,' in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertaking to pay that debt, he being only liable as a surety. But where the party undertaken for is under no original liability, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C,
on the express promise of A to pay for them, as if A says to him, 'Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case C being under no liability, there is nothing to which the promise of A can be collateral; but A being the immediate debtor, it is his original undertaking, and not a promise to answer for the debt of another;" and therefore need not be in writing.
If a promise or undertaking be once shown to be original, and not collateral, as we have endeavored to explain and illustrate those terms, it oan never be brought within the operation of the statute; that is, it never needs to be in writing. This is a rule to which there is no exception that we are aware of. But the converse does not hold universally. For, though it is generally true, as we have said, that collateral promises are within the statute, and therefore must be in writing, there are in the books several cases of collateral promises to which it has been held that the statute did not apply. Many attempts have been made to discover a principle which would explain all these cases, and serve as a test in the future for distinguishing those collateral promises which are, from those which are not, within the statute. Chief Justice Kent stated the principle thus: “ When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm, moving between the newly contracting parties, it is not within the statute.” But this will scarcely explain all the cases, though it may most of them. We should prefer to state the distinction thus. Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, bis promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.
If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt; for although that promise must be in writing, the other may be oral.
OF AN AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR.
Under the fifth clause in the fourth section, it is held that an agreement which may be performed within the year is not affected by the statute, as the words, " that is not to be performed within one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances—although in point of fact its execution was extended much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So where one agreed orally never to go into the staging business in a certain place, as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it.
OF THE ACCEPTANCE OF A THING SOLD.
Under the exceptional clause in the seventeenth section, " unless the buyer shall accept and actually receive the same,” it is clear that a mere delivery is not enough, without a distinct acceptance by the buyer.
But anything would amount to a delivery and acceptance, which was intended io be so, and was received as such, and which actually put the goods within the reach and power of the buyer. The symbolical deliveries before mentioned, as the delivery of the key of a warehouse, or an entry in the books of the warehouse-keeper, or indorsement and delivery of a bill of lading, or even of a receipt, in many cases, or a delivery of a part of one whole, without the intention of separating it from the rest, are sufficient. But some of many distinct and severable things may be delivered without this operating as a delivery of the rest; nor is the delivery of a sample sufficient, unless it be delivered as a part of the thing sold. The subject of delivery has been considered in the article on Sales.
If the buyer receives the goods, but reserves the right of returning them and rescinding the sale if they are not satisfactory, or as represented, this we should hold to be a conditional acceptance, which does not suffice to take the case out of the requirement of the statute, until this right is extinguished by lapse of time or otherwise, or given up; for until then there is no definite and certain acceptance.
" Earnest” must be given and received as such to make the sale valid under that clause of the statute. “Earnest” is a payment of a part as a symbol for the whole, and the part-payment must be actual payment, and not a mere agreement that something else, as a discharge of an existing debt, shall be taken as part-payment.
OF THE FORM AND SUBJECT-MATTER OF THE AGREEMENT.
The “ agreement” must be in writing; but generally, in this country the writing need not contain or express the consideration, which may be proved otherwise. Nor need it be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction.
The " signature" may be in any part of the paper-the beginning, middle, or end, except in those of our States in which the statute has the word “subscribed" instead of “signed;" in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient; bence, a printed shop-bill, with the name of the seller, as usual, at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods.
Shares in railroad companies, in manufacturing companies, and, we think, in all corporations and joint-stock companies, are “goods, wares, or mer