of carriage limiting the liability of railway companies by the Railway and Canal Traffic Act, 1854; (9) contracts for the sale of goods of the value of 101. and upwards by the Sale of Goods Act, 1893; and (10) contracts within s. 4 of the Statute of Frauds.

The only ones of these which, for present purposes, require special comment are the last two. As regards contracts for the sale of goods, the subject is fully dealt with later on. As regards the fourth section of the Statute of Frauds, it provides that no action shall be brought upon any of the following five classes of contracts "unless the agree"ment 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 by him lawfully authorised."

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The contracts in question are these: (1) any special promise by an executor or administrator to answer damages out of his own estate; (2) contracts of suretyship or guarantee (s); (3) agreements "in consideration of marriage" (.e., agreements to give or settle money or property upon a marriage, not mere promises to marry); (4) agreements "not to be performed within a year (ie., not capable of being performed on either side within a year (t); and (5) contracts relating to land or any interest in land (¿.e., agreements for the sale or letting of land, or in any way directly concerning or affecting land).

In order to satisfy the requirements of the statute, the following conditions must concur : (1) There must be a note or memorandum of the contract in writing. It may consist of one or several documents; but, in the latter case, the documents must be clearly referable to and connected with each other (u). (2) The parties must be described

(8) See later on p. 140, and see Harburg, etc. Co. V. Martin, [1902] 1 K. B. 778.

(1) Peter v. Compton (1694), Skin. 353; Milsom v. Stafford

(1899), 80 L. T. 590; Pearce v. Gardner, [1897] 1 Q. B. 688.

(u) Boydell v. Drummond (1809), 11 East, 142; Jones v. Joyner (1900), 82 L. T. 768.

either by name, or in some other way sufficiently clearly to identify them (r). (3) The subject-matter must be described so as to be identifiable (y). (4) The consideration (except in the case of contracts of suretyship and guarantee under the Mercantile Law Amendment Act, 1856) must be stated, or capable of reasonable inference from the memorandum (z). (5) All other material terms must appear, expressly or by reasonable inference, in the memorandum, e.g., the date of commencement of a lease (a). (6) The agreement must be final and concluded, as in the case of all other contracts. (7) The memorandum must be signed by the party against whom the agreement is sought to be enforced, or by his agent (b). And, finally (8) the memorandum must be in existence before any action brought to enforce the contract (c).

There are, however, certain exceptional cases to which the Statute of Frauds does not apply (d), i.e. (1) in sales by order of the court; (2) where the defendant admits. the contract; (3) where the plea of the statute would “cover fraud” (e); and (4) where there is a valid parol agreement followed by part performance.

The last of these cases requires a short explanation. The doctrine of part performance is, in origin, an equitable one, though it is now enforceable in every branch of the Supreme Court, and also in county courts, so far as these

(x) Coombs v. Wilkes. [1891] 3 Ch. 77; Carr v. Lynch, [1900] 1 Ch. 613; Pattle v. Anstruther (1894), 69 L. T. 174.

(y) Shardlow v. Cotterell (1881), 20 Ch. D. 90; Plant v. Bourne, [1897] 2 Ch. 281.

(z) Wain v. Warlters (1804), 5 East, 10; Re Eyre (1895), 72 L. T. 585.

(a) Humphery V. Conybeare (1899), 80 L. T. 40; Re Alexander's

have equitable jurisdiction (f). It applies to all contracts of a kind of which specific performance can be granted (g). In order that any acts may constitute part performance in this sense, the following conditions must be satisfied (h) : (1) They must be such as to be unequivocally referable to the alleged contract; (2) and such as to render it a fraud in the defendant to take advantage of the contract not being in writing; (3) the contract must be such as in its own nature is enforceable by the court; and (4) there must be proper parol evidence of the contract which is let in by the acts of part performance.

The following things have been held to be sufficient part performance: Taking possession of property; continuance of a tenant in possession at an increased rent ; expenditure of money in buildings or improvements; and delivery of title deeds under a parol agreement for mortgage (i).

On the other hand, the following have been held to be insufficient acts ancillary or introductory to completion of the contracts; payment of purchase money on a sale; marriage; payment of rent under a parol agreement for a lease; and continuance in the service of an employer (k).

Other requirements.-By statute in certain cases there are certain other requirements, e.g., bills of sale and transfers of British ships have to be registered in a public register; disentailing deeds and assurances to charities. have to be enrolled, and certain contracts with companies have to be filed with the Registrar of Companies. It is not, however, necessary to consider these in detail.

(f) Foster V. Reeres, [1892] 2 Q. B. 255.

(g) McManus v. Cooke (1887), 35 Ch. D. 681.

(h) See Fry, Specific Performance, 580, and see SELBORNE, L.C., in Maddison v. Alderson (1883), L. R. 8 App. Ca. 476

et seq.

(i) Ungley v. Ungley (1877), 5 Ch. D. 887; Miller v. Sharp, [1899] 1 Ch. 622; Lester v. Foxcroft (1701), 2 Wh. & Tud. L. C. 460.

(k) Britain v. Rossiter (1879), 11 Q. B. D. 123; Maddison v. Alderson (1883), L. R. 8 App. Ca. 467.

Sub-section (6).—Legal Capacity of Parties.

The general rule is, that any person is legally capable of entering into a contract valid by English law, including even foreigners. But there are certain exceptional cases in which such capacity, for some reason, does not exist, or exists only subject to limitations. The chief cases are those of contracts by the following persons, i.e., (1) alien enemies; (2) foreign sovereigns or governments; (3) foreign ambassadors and their suites; (4) convicted felons; (5) infants; (6) married women; (7) lunatics; (8) drunken persons; and (9) corporations. It will be desirable briefly to consider these in order.

(1) Alien enemies.-Contracts with alien enemies, if made before war with their state, are in suspense, and not enforceable during the war; but if made during the war, they are void ab initio (1).

(2) Foreign sovereigns.-Foreign sovereigns or governments can make contracts valid by English law, but such contracts cannot be enforced in our courts against them, except where they voluntarily appear and submit to the jurisdiction (m).

(3) Foreign ambassadors and their suites.-The rule last mentioned also applies in this case, with the possible exception (not clearly decided) that if an ambassador or member of his suite engages in trade, he may be sued here on a contract entered into by him. Subject to this exception, the Diplomatic Privileges Act, 1708, makes "null and void" any writ or other process against such persons. (See generally Musurus Bey v. Gadban, [1894] 1 Q. B. 533.)

(1) Willison v. Paterson (1816), 7 Taunt. 439; Janson v. Driefontein Mines, [1902] A. C. 484.

(m) Mighell v. Sultan of Johore,

[1894] 1 Q. B. 149; Castaneda v. Clydebank Co., [1902] A. C. 524; South African Republic v. Transraal Railway, [1898] 1 Ch. 190.

(4) Convicted felons. By s. 8 of the Forfeiture Act, 1870, "every convict shall be incapable of alienating or charging any property or of making any contract."

(5) Infants.-At common law an infant's contracts were all voidable at his option, except in certain cases, such as contracts for necessaries. This rule is now modified by the Infants' Relief Act, 1874, which in effect enacts (a) that all contracts by infants for money lent or to be lent, or goods supplied or to be supplied, and all accounts stated, shall be absolutely void; and (b) that no ratification after majority of a contract made during minority shall be valid. The Act, however, excepts contracts for necessaries, and contracts which before the Act were binding on an infant and not voidable by him.

As the law stands at present, the result may shortly be stated as follows. Generally speaking, all contracts by an infant are in effect void, either as being so ab initio, or as being incapable of ratification, although money paid by an infant under such a contract, of which he has had the benefit, cannot be recovered back by him (n). him (n). But there are several important exceptions, as follows: (1) An infant is liable to pay a reasonable price for "necessaries" sold and delivered to him (Sale of Goods Act, 1893, s. 2). "Necessaries" are defined by the Act as meaning “goods suitable to the condition in life of such infant, and to his actual requirements at the time of sale and delivery." It is obvious that many things, such as medicine and reasonable food and clothing, are essentially necessaries, whereas articles of mere ornament or luxury, or things with which the infant is already well supplied, would not be "necessaries" (o). But there are many cases on the border line which have to be decided on the particular

(n) Valentini v. Canali (1889), 24 Q. B. D. 166.

(0) Peters v. Fleming (1840), 6 M. & W. 42; Ryder v Wombwell

(1868), L. R. 4 Ex. 32; Johnstone v. Marks (1887), 19 Q. B. D. 509; Hewlings v. Graham (1901), 84 L. T.

497.