buyer against the vendor, it was held, that, on these facts, there was no evidence to go to the jury of an acceptance and actual receipt to bind the bargain; as, at the time when the buyer took to the goods as owner, the parol contract had been already disaffirmed by the vendor. [WILLES, J.-That was a very peculiar case: there was no acceptance there with the assent of the vendor.] The letter of the 3d of December was not a note or memorandum of the contract: it does not contain the terms of the bargain; and it is an express repudiation of the contract. "The object of the statute was, that the note in writing should exclude all doubt as to the terms of the contract:" per Bayley, J., in Smith v. Surman, 9 B. & C. 569. The memorandum must at all events show what the defendant's promise is: Egerton v. Mathews, 6 East 307. That this letter does not. The word used is "selected," not "purchased," which clearly would not be enough in a bought and sold note. Under the statute of limitations, there is no case where a subsequent writing has been held to prevent the operation of the statute, unless it admits the contract to be still binding. "When it is ascertained," says Lord Abinger in Johnson v. Dodgson, 2 M. & W. 653, 659,† "that the defendant meant to be bound by it as a complete contract, the statute is satisfied, there being a note in writing showing the terms of the contract, and recognised by him." If this had been a simple acknowledgment containing or referring to some other document containing the terms of the contract, it might have sufficed: Allen v. Bennet, 3 Taunt. 169; Saunderson v. Jackson, 2 Bos. & P. 238; 3 Esp. N. P. C. 180; Jackson v. Lowe, 1 Bingh. 9 (E. C. L. R. vol. 8), 7 J. B. Moore 219 (E. C. L. R. vol. 17); Dobell v. Hutchinson, 3 Ad. & E. 355 (E. C. L. R. vol. 30), 5 N. & M. 251 (E. C. L. R. vol. 36). Here, however, the effect of the *acknowledgment contained in the first part of the defendant's *851] letter of the 3d of December is destroyed and the whole rendered inoperative by the subsequent repudiation of the contract. In Cooper v. Smith, 15 East 103, a memorandum in writing of a contract for the purchase of flour by the defendant of the plaintiff, a miller, taken by the plaintiff's traveller in his common order-book in these terms,-19th Feb. 1811, of John Smith, 641." (which was explained by the witness. to mean so much received of the defendant in satisfaction of a former order), "Do. 40 of 3, 58/" (which was explained to mean a new order for forty sacks of flour called "thirds," at 588. per sack), and this without any signature,-was held not to be a sufficient memorandum in writing of the bargain within the 17th section of the statute of frauds, to bind the defendant: and it was further held that such defective memorandum could not be supplied by a letter written afterwards by the defendant, in which, though he recognised the order, he insisted that the flour had not been delivered in time, and therefore he was not bound to take it; and that it was not competent to the plaintiff to prove, by the parol testimony of the person who took the order, that there was no such term in the contract as to deliver the flour within a given time. "The plaintiff cannot," said Lord Ellenborough, "avail himself of that letter as evidence of the contract for one purpose, to bind the defendant within the statute, and renounce it for another purpose; but he must take it all together; and then it falsifies the contract proved by parol testimony for the plaintiff." Richards v. Porter, 6 B. & C. 437 (E. C. L. R. vol. 13), 9 D. & R. 497 (E. C. L. R. vol. 22), is to the same effect: and in Smith v. Surman, 9 B. & C. 561 (E. C. L. R. vol. 17), 4 M. & R. 455, Bayley, J., says: "I agree, that, if there had been a letter written by the seller (or his agent) to the buyer, *specifying the [*852 terms of a contract, and the buyer in his answer had recognised that contract, there would have been a note in writing of the bargain, sufficient to satisfy the statute. But the defendant in this case does not recognise the contract stated in the letter of the plaintiff's attorney. The contract as described in the two letters differs essentially as to the quality of the things to be sold. It is clear, therefore, that the vendee did not consider it a binding bargain. What the real terms of the contract were, is left in doubt, and must be ascertained by verbal testimony. The object of the statute was, that the note in writing should exclude all doubt as to the terms of the contract, and that object is not satisfied by the defendant's letter." In Haughton v. Morton, 5 Irish Common Law Rep. 329, to an action for a breach of contract, by the non-delivery of a cargo of wheat, sold by sample, the defendants pleaded that there was no delivery or memorandum in writing of the sale; and on this defence the following issues were taken,-first, whether the plaintiff accepted any part of the goods and actually received the same,-and, secondly, whether there was a memorandum in writing signed by the defendants. In support of these issues, the plaintiff proved an entry made by the defendants in a memorandum book, dated the 10th of October, 1854, but not signed by them, as follows," B. Haughton, about 800 barrels Ghorka wheat ex Liverpool, at 388.; payment, half cash and half bill at three months." This contract not being executed, owing to the loss of the vessel carrying the goods, the plaintiff applied by letter for compensation, to which the defendants replied, admitting the sale, but stating that it was subject to certain conditions agreed on by the plaintiff. On this evidence the judge left the case to the jury on the second issue, telling them, that, if they believed the *entry in the book contained the terms of the agreement for the sale, [*853 and that the letters of the defendants referred to such entry, the same was a sufficient note in writing to satisfy the Statute of Frauds. The court held, dissentiente Lefroy, C. J.,-that this was a misdirection. (a) [KEATING, J.-In all the cases you rely upon, the letter contains a recognition of a contract materially different from the actual contract.] In Goode v. Job, 28 Law J., Q. B. 1, it was held, that, if a person through whom the defendant in an action of ejectment claims has in an answer sworn by him to a bill filed by the plaintiff in reference to the same property, acknowledged the title of the plaintiff within twenty years of the time of the action being brought, such acknowledgment will be evidence against the defendant, and will operate as a bar to the Statute of Limitations, under the 3 & 4 W. 4, c. 27, s. 14. But, in Rondeau v. Wyatt, 2 H. Bl. 63, an admission of a contract in an answer to a bill in Chancery was held not to be a sufficient memorandum within the Statute of Frauds. And this view is adopted in Mitford on Pleadings in Equity, 5th edit. 311. This being the state of the authorities, the court will, it is submitted, in the absence of any cogent reasoning to the contrary, adopt the conclusion arrived at by Mr. Justice Blackburn, and hold this acknowledgment to be insufficient. Further, in order to maintain this action, the plaintiff must prove that the property in the (a) See Bradford v. Roulston, 8 Irish Common Law Rep. 468. goods vested in the defendant at the time of the contract. Now, the letter, which alone can be relied on to prove the contract, was not written until five months after the oral bargain was made. When did the property vest? Clearly not until the 3d of December. Whose goods were they in the mean time? [WILLES, J.-There might have been *854] something in this point, if the goods had been burnt in the interim.] In the notes to Birkmyr v. Darnell (Salk. 27), in 1 Smith's Leading Cases, 4th edit., p. 233, it is said: "A vendee cannot, where the contract of sale is invalid by the statute, effect an insurance on the goods,-Stockdale v. Dunlop, 6 M. & W. 224;† nor, it seems, could he bring an action against the carrier, treating the vendor as his agent to forward: see Coats v. Chaplin, 3 Q. B. 483 (E. C. L. R. vol. 43), 2 Gale & D. 552. Also it is observable that the written memorandum must exist before action, and in that respect differs from mere evidence: Bill v. Bament, 9 M. & W. 36:† see Fricker v. Thomlinson, 1 M. & G. 772 (E. C. L. R. vol. 39). And indeed, attending to the distinction pointed out by the Lord Chancellor (Cottenham) in Dale v. Hamilton, 2 Phillips 266, between agreements and declarations of trust,' that, in the one, it is the agreement itself, which is the origin of the interest, that must be in writing; in the case of a declaration of trust, which is only the recognition of a pre-existing interest, it is the evidence and recognition, and not the origin of the transaction, that must be in writing, it may be difficult to impute any retroactive effect to the subsequent written memorandum of an agreement within the statute, not originally reduced into writing." Hawkins, Q. C., and Kemplay, in support of the rule.-Baldey v. Parker, 2 B. & C. 37 (E. C. L. R. vol. 9), 3 D. & R. 220 (E. C. L. R. vol. 16), and the cases which have followed it, show that the jury came to a wrong conclusion in this case, assuming the question to have been properly for them. The main question, however, is, whether the defendant's letter of the 3d of December was a sufficient note or memorandum of the bargain to satisfy the 17th section of the statute. The first objection made to it, is, that it does not contain an admission of the terms of the *contract. In substance it is, "I selected for *855] ready money" (which means, I selected and agreed to pay ready money for them) "certain chimney-glasses, the price of which was 387. 108. 6d." That which follows is no denial or repudiation of the contract, but a mere statement that for some reason the defendant wished to avoid the performance of it. [WILLIAMS, J.-It cannot be laid down broadly that a mere recital of a contract will constitute a note or memorandum within the statute.] In Jackson v. Lowe, 7 J. B. Moore 219 (E. C. L. R. vol. 17), 1 Bingh. 9, the purchaser of flour gave a notice in writing to the seller, who had delivered part of it, that it was of bad quality, and unsaleable, and required him to take it away in this notice the quantity, quality, price, and time of delivery were stated: the attorney for the vendor answered this, stating that the vendor had performed his contract as far as it had gone, and was ready to complete the remainder : and it was held that the two documents together constituted a sufficient note or memorandum of the bargain to satisfy the statute. [ERLE, C. J.-I do not think you need labour that.] The next objection is, that the letter contains an express repudiation or disclaimer of the contract, and therefore the statute is not satisfied: and for this the passage cited from Mr. Justice Blackburn's book is relied on. No authority, however, is cited to support the proposition there laid down. [WILLIAMS, J. -My Brother Blackburn admits that there is no authority for it; but he gives his own reasons for the opinion he advances. When do you say the property passed by this contract?] At the time of the original bargain in July. [WILLIAMS, J.-Indeed!] It is not necessary to contend for that, though it seems to be borne out by the language of the 17th section: it is not the "contract" which is required to be in writing, but "some note or memorandum of the contract." *[WILLIAMS, J.-A memorandum given after action brought will not [*856 do: Bill v. Bament, 9 M. & W. 36. The reason given is, that the cause of action is not complete until the memorandum is given. Parke, B., there says: "There must, in order to sustain the action, be a good contract in existence at the time of action brought; and, to make it a good contract under the statute, there must be one of the three requisites therein mentioned. I think, therefore, that a written memorandum, or part payment, after action brought, is not sufficient to satisfy the statute."] That is somewhat at variance with the dictum of Maule, J., in Fricker v. Thomlinson, 1 M. & G. 772 (E. C. L. R. vol. 39),-"The case in the Exchequer (a) decided that the Statute of Frauds only altered the evidence of the contract, and did not, like the Statute of Anne, (b) make the contract itself void: and, if that be so, a memorandum of the contract made after action brought would be sufficient: and why, then, should not an acceptance of goods after action brought be admissible in evidence?" [WILLES, J.-According to Coats v. Chaplin, 3 Q. B. 483 (E. C. L. R. vol. 43), 2 Gale & D. 552, and that class of cases, the buyer could not have sued the carrier for the damage done to the goods at the time the negligence occurred. Could he put himself in a better position in this respect by a written acknowledgment?] His acknowledgment would have a retroactive effect. [WILLES, J.-Suppose the vendors had brought their action against the carrier, and the vendee wrote the letter which perfected his contract the day before the trial, what would be the effect of that?] It may well be that the carrier may owe a duty to both. In all the cases cited on the part of the defendant, the contract had *either been repudiated before the letter was [*857 written, or the parties were not at one as to the terms of the contract. ERLE, C. J.-This was an action for goods sold and delivered. There was an oral contract for the sale and delivery of the goods in question: but the defendant relies upon the Statute of Frauds, and contends that there was no note or memorandum of the bargain in writing to satisfy that statute. After the making of the oral contract, however, there was a letter written by the vendee to the vendors, which contains this statement," The goods selected for ready money was the chimneyglasses, amounting to 387. 108. 6d." (the goods in dispute), "which goods I have never received, and have long since declined to have, for reasons made known to you at the time," the reason being, that, in consequence of the negligence of the carrier through whom they were sent, the goods were damaged. Now, the first part of that letter is unquestionably a note or memorandum of the bargain: it contains a (a) Elliott v. Thomas, 3 M. & W. 170.† description of the articles sold, the price for which they were sold, and all the substantial parts of the contract. If it had stopped there, there could be no dispute as to its being a sufficient note or memorandum to satisfy the statute. It is clear that the note or memorandum may be made after the time at which the oral contract takes place; and, to my mind, that which passed orally between the parties on the subject of the bargain in July, was in the nature of an inchoate contract, and the subsequent letter had a retroactive effect, making the contract good and binding. The latter part of the defendant's letter in effect says, "I decline to take the goods because the carrier damaged them in their transit" and it is contended on his part, that the acknowledgment at the beginning of the letter does not constitute a sufficient memo *858] randum within the statute, because the latter part contains a repudiation of his liability, relying much on the passage cited from my Brother Blackburn's book on the Contract of Sale, where it is suggested that a subsequent acknowledgment in writing has not the effect of making the contract good, if it is accompanied by a repudiation of the defendant's liability under it. A case is referred to, of Rondeau. v. Wyatt, 2 H. Bl. 63, where an answer to a bill of discovery, in which the defendant admitted the agreement, was held not to preclude him from taking the objection that there was no note or memorandum to satisfy the Statute of Frauds. We have adverted to the authorities cited in Mr. Justice Blackburn's book, and to the case of Rondeau v. Wyatt; but we find no decided authority upon the point in judgment. In that state of the authorities, we are remitted to the Statute of Frauds itself: and, upon reference to its language, we think the defendant's letter does amount to a sufficient memorandum in writing, and makes the contract good. The purpose of the statute was, to prevent fraud and perjury. Now, the danger of perjury in this case is effectually prevented by the letter of the defendant; for, he distinctly admits that he made the contract, and at the price alleged. I do not consider that the defendant intended to deny his liability by reason of the absence or insufficiency of the contract: but that the only question which he intended to raise, was, whether he or the plaintiffs should settle with the carriers for the damage done to the goods. I think that constitutes a material distinction between the present case and those cited, in which the defendant, admitting the contract, has rested his defence on the non-compliance with the statute. But, if there be no such distinction, and we are called upon to consider whether the doctrine suggested Brother Blackburne's book correctly represents the law *859] upon this subject, with the highest respect for that clear-headed and highly eminent judge, I must say that I am unable to give my assent to his proposition. I think the purpose of the Statute of Frauds is answered by the defeudant's letter, and that the plaintiffs are entitled to recover. WILLIAMS, J.—I am entirely of the same opinion. It cannot for a moment be controverted here, that in point of fact there was a good and lawful contract between the plaintiffs and the defendant for the sale of the goods in question. But it is equally clear, that, as the price of the goods bargained for exceeded the value of 107., the contract was not an actionable one unless the requisites of the 17th section of the Statute of Frauds were complied with; that section enacting, "that no contract |