in writing only, whereas, in section r7, a writing is one of various alternatives. A comparison of these alternatives (" 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"), with the things named in our old books as the badges of a completed transaction of sale (Glanvil, Book x. ch. 14; Bracton, 61 b), shows, not so much a close resemblance, as substantial identity. The old writers speak of payment (wholly or in part), earnest, and tradito. What the expression "acceptance and actual receipt " in section 17 means is a matter still in debate; but the conjecture is more than probable that the writer of the section meant to indicate in an emphatic way the old traditio. Apart from the writing, then, the alternatives of section 17, being of equal operation with a writing, appear to correspond to the old common law emblems of an executed transaction of sale; for by the common law, though the power of two persons was always recognized to pass and receive title at once by parol, if that were their intention, such an intention was not supposed to exist without some of these badges of a completed sale. As these requisites were the marks of a sale as distinguished from an agreement to sell, it is not unnatural that sec should have been formerly supposed to apply to executed transactions only. There is, indeed, considerable reason to think, as an original question, that such was the intention of the drawers of the statute, clearly as the interpretation is now settled to the contrary. Observe that executory contracts of sale are included within the provision as to contracts not to be performed within a year; and that the maxim noscitur a sociis would put upon section 17 the interpretation of meaning an executed sale, because that part of the statute is occupied with devises, trusts, judgments, and the like — things that operate as conveyances and carry title.
It is very important to take a general view of the Statute of Frauds, so as to avoid the two narrow interpretation frequently put upon it; to escape, for example, saying, with Lord Campbell, in Morton v. Tibbett (15 Q. B. 428, 431), that "acceptance under the statute is merely instead of a memorandum." It might be said with as much truth that a memorandum is merely instead of acceptance; the separate requirements of section I7 are perfectly distinct, and each stands on its own footing. The considerations applicable to one may be inapplicable to another.
It is very important to take a general view of the Statute of Frauds, so as to avoid the two narrow interpretation frequently put upon it; to escape, for example, saying, with Lord Campbell, in Morton v. Tibbett (15 Q. B. 428, 431), that "acceptance under the statute is merely instead of a memorandum." It might be said with as much truth that a memorandum is merely instead of acceptance; the separate requirements of section 17 are perfectly distinct, and each stands on its own footing. The considerations applicable to one may be inapplicable to another.
RECENT CASES
[These cases are selected from the current English and American decisions not yet regularly reported, for the purpose of giving the latest and most progressive work of the courts. No pains are spared in selecting all the cases, comparatively few in number, which disclose the general progress and tendencies of the law. When such cases are particularly suggestive, comments and references are added, if practicable.]
Bailment — Negligence — Collateral — Security.— A bank is not a gratuitous bailee of collateral security, but is responsible for the want of reasonable and ordinary care in its custody. Where it appears that no record or account of such securities was kept, and no examination in relationship thereto was made, except once in six months, a lack of ordinary care is shown. Ouderkirk v. Central Nat. Bank, 23 N. E. Rep. 875 (N. Y.).
