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pable of being enforced in a court of law. It is every day's practice, in the courts of equity, to enforce the performance of contracts not in writing, where there has been a part performance. That could not be, if the contract were wholly void. The effect of the 4th section of the statute is, that, in order to avoid fraud and perjury, contracts of a given description shall only be proved by some note in writing. [Maule, J. The 1st, 3rd, and 17th sections of the 29 Car. 2, c. 3, differ materially from the 4th. The 1st section enacts that "all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to, or out of, any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parol leases or estates, or any former law or usage to the contrary, notwithstanding," -subject to the exception in s. 2. The 3rd section enacts that "no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing, or by act and operation of law.” That section contemplates an operative instrument: it clearly is not providing for evidence merely. Again, the 17th section says that no contract of the descriptions there enumerated "shall be allowed to be good," except, &c. The 4th section, however, says, not that an agree

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ment which is not in writing shall be void, or shall not be allowed to be good, but merely that no action shall be brought upon it. It requires that the agreement, to be the foundation of an action, or some memorandum or note thereof, shall be in writing, and signed. A letter written and signed by the party, containing the terms of the agreement, though addressed to a third person, satisfies the letter, as well as the object of the statute. Jervis, C. J. That is the view which Bosanquet, J., takes in Laythoarp v. Bryant. Suppose the defendant had written a letter to a third person, saying that he had made such a contract as this with the plaintiff at Calais, but that, being made there, and not in writing, it could not be enforced in this country,-would not that be a sufficient note or memorandum of the contract to satisfy the 4th section?] No doubt it would. If the words "whether made in England or elsewhere" had been actually inserted in the statute, the court would have been bound to give effect to them, notwithstanding the comity of nations. In Lopez v. Burslem, 4 Moore's P. C. Cases, 300, the statute 5 G. 4, c. 113 (the slave abolition act), s. 29, which enacts that no appeals shall be prosecuted from any sentence of any court of Admiralty or Vice-Admiralty (except in any Vice-Admiralty court at the Cape of Good Hope or to the eastward thereof), unless an inhibition be applied for and decreed within twelve months from the time of the decree or sentence being pronounced,-was held to apply to foreigners as well as British subjects. Lord Campbell, in delivering the judgment of the Privy Council, there says: "It is contended that the owners of the cargo are not bound by the enactment, because they are foreigners. The British parliament certainly has no general power to legislate for foreigners out of the dominions and beyond the jurisdiction of the British crown; but it cannot be doubted for a moment that a

British statute may fix a time within which application must be made for redress to the tribunals of the empire. This is matter of procedure, and becomes the law of the forum. On matter of procedure, all mankind, whether aliens or born subjects, plaintiffs or defendants, appellants or respondents, are bound by the law of the forum. If a law were made upon this subject, working oppression and injustice to the subjects of a foreign state, that state might make representations and remonstrances against this law, to our government: but, while it remains in force, judges have no choice but to give effect to it. Had it been shewn to us ever so clearly, that, in this case, the condition required could not have been complied with, if it has clearly, absolutely, and universally been imposed, we should have no power to dispense with it." [Maule, J. In the Sussex Peerage case, 11 Clark & Fin. 85, the Royal Marriage Act, 12 G. 3, c. 11, was held to extend to prohibit the contracting of marriages, or to annul any already contracted, in violation of its provisions, wherever the same might be contracted or solemnized, whether within the realm of England or without.] In Davis v. Trevanion, 2 D. & L. 743, it was held that a warrant of attorney executed abroad, must be attested by an attorney, in pursuance of the 1 & 2 Vict. c. 110, s. 9. [Maule, J. A warrant of attorney is an instrument which is to be operative entirely in England, and which is altogether inoperative out of England.]

JERVIS, C. J. I am of opinion that the rule to enter a nonsuit must be made absolute. There is no dispute as to the principles which ought to govern our decision. My Brother Allen admits, that, if the 4th section of the statute of frauds applies, not to the validity of the contract, but only to the procedure, the plaintiff cannot maintain this action, because there is no agreement, nor any memorandum or note thereof, in writing. On the

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INDEX

THE PRINCIPAL MATTERS.

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