1852.

LEROUX

v.

BROWN.

procedure. Upon these grounds, I am of opinion that this action cannot be maintained, and that the rule to enter a nonsuit must be made absolute.

MAULE, J. I am of the same opinion. The 4th section of the statute of frauds enacts that "no action shall be brought upon any agreement which 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 thereto by him lawfully authorised." Now, this is an action brought upon a contract which was not to be performed within the space of one year from the making thereof, and there is no memorandum or note thereof in writing signed by the defendant or any lawfully authorised agent. The case, therefore, plainly falls within the distinct words of the statute. It is said that the 4th section is not applicable to this case, because the contract was made in France. This particular section does not in terms say that no such contract as before stated shall be of any force; it says, no action shall be brought upon it. In their literal sense, these words mean that no action shall be brought upon such an agreement in any court in which the British legislature has power to direct what shall and what shall not be done; in terms, therefore, it applies to something which is to take place where the law of England prevails. But we have been pressed with cases which it is said have decided that the words "no action shall be brought" in the 4th section, are equivalent to the words "no contract shall be allowed to be good," which are found in another part of the statute. Suppose it had been so held, as a general and universal proposition, still I apprehend it would not be a legitimate mode of construing the 4th section, to substitute the equivalent words

for those actually used. What we have to construe, is,
not the equivalent words, but the words we find there.
If the substituted words import the same thing, the sub-
stitution is unnecessary and idle: and, if those words are
susceptible of a different construction from those actually
used, that is a reason for dealing with the latter only.
It may be, that, for some purposes, the words used in
the 4th and 17th sections may be equivalent; but they
clearly are not so in the case now before us; for, there
is nothing to prevent this contract from being enforced
in a French court of law. Dealing with the words of
the 4th section as we are bound to deal with all words
that are plain and unambiguous, all we say, is, that they
prohibit the courts of this country from enforcing a con-
tract made under circumstances like the present,—just
as we hold a contract incapable of being enforced, where
it
appears upon the record to have been made more than
six years. It is parcel of the procedure, and not of the
formality of the contract. None of the authorities which
have been referred to seem to me to be at all at variance
with the conclusion at which we have arrived.

TALFOURD, J. I am of the same opinion. The argu-
ment of Mr. Honyman seems to me to be quite un-
answerable. That drawn from Laythoarp v. Bryant
and that class of cases in which it has been held that
the 4th section of the statute of frauds is satisfied by a
subsequent letter addressed to a third party, containing
evidence of the terms of the contract, shews clearly that
that section has reference to procedure only, and not to
what are called by the jurists the rights and solemnities
of the contract.

Rule absolute.

1852.

LEROUX

v.

BROWN.

The 10th section of that statute enacts, that, "from
the time when this act shall commence and take effect,

so much of a certain act of parliament &c. (2 W. 4, c.
39), as related to the duration of writs, and to alias and
pluries writs, and to the proceedings necessary for mak-
ing the first writ in any action available to prevent the
operation of any statute whereby the time for the com-
mencement of any action may be limited, shall be re-
pealed, except so far as may be necessary for supporting
any writs that have been issued before the commencement
of this act, and any proceedings taken or to be taken
thereon."

And s. 12 enacts, that "where any writ of summons
in any such action shall have been issued before, and
shall be in force at, the commencement of this act, such
writ may at any time before the expiration thereof be
renewed under the provisions of, and in the manner
directed by, this act; and, where any writ issued in con-
tinuation of a preceding writ, according to the provisions
of the said act of 2 W. 4, c. 39, shall be in force and
unexpired, or where one month next after the expiration
thereof shall not have elapsed at the commencement of
this act, such continuing writ may, without being re-
turned non est inventus or entered of record according
to the provisions of the said act of 2 W. 4, c. 39, be
filed in the office of the court within one month next
after the expiration of such writ, or within twenty
days after the commencement of this act; and the ori-
ginal writ of summons in such action may thereupon,
but within the same period of one month next after the
expiration of the continuing writ, or within twenty days
after the commencement of this act, be renewed under
the provisions of and in the manner directed by this act;
and every such writ shall after such renewal have the
same duration and effect for all purposes, and shall, if
necessary, be subsequently renewed, in the same manner

1852.

GAPP

v.

ROBINSON.

1852.
GAPP

v.

ROBINSON.

as if it had originally issued under the authority of this
act."

The plaintiff, after the 24th of October, the day on
which the 15 & 16 Vict. c. 76, came into operation, but
before the expiration of the time for issuing an alias
under the 10th section of the 2 W. 4, c. 39, viz. on the
2nd of November, applied for an alias summons, for the
purpose of saving the statute of limitations: but the
officers doubted whether the renewed writ should, under
the circumstances, issue pursuant to the old or the new
statute. It was now submitted that the case was not
within the terms of the first branch of the 15 & 16 Vict.
c. 76, s. 12, the original writ of summons not having
been in force when the statute came into operation; nor
within the second branch, because it was not a writ
issued in continuation of a preceding writ.

MAULE, J. The case is clearly not within the 12th
section of the common law procedure act.

JERVIS, C. J. I also think this case must be governed
by the 10th section of the 2 W. 4, c. 39, and not by the
12th section of the recent statute. I am informed that the
masters of this court conferred with the masters of the
court of Exchequer yesterday upon the subject, and that
they came to the conclusion that the case must be dealt
with under s. 10.

TALFOURD, J., concurring,

Direction given accordingly.