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![handle is hein.slavery/ssactsengr0998 and id is 1 raw text is: DE TERM. SANCT. MICH. 7 GEO. I.
bill for the performance of [357] a contract for 40001. South-Sea stock ought to be
allowed; which resolution is in point.
Serjeant Whitaker e contra insisted, that all contracts were not intended to be
comprised within that statute; for the words make contracts above 101. void, except
the buyer accept part of the goods sold, and actually receive the same, or give earnest
or some memorandum of it be in writing ; and therefore though one or other part
is sufficient, yet the statute does not extend to contracts where neither one nor the
other part can be performed; and therefore, where part of the goods cannot be
delivered or accepted, it cannot be a contract within the statute, which extends only
to such things part whereof may be delivered or accepted.
The transfer of stocks at the time of that statute made was unusual, and therefore
it is not probable that the Legislature had that in view; and although all goods,
wares and merchandizes, are mentioned in the statute, yet it does not follow that the
statute shall extend to contracts for all sorts of goods ; for there are goods of which
felony cannot be committed, and it is not probable that it should extend to them.
This statute is introductive of a new law, and therefore is to be taken strictly, and
shall not be construed to extend to stocks, or other choses in action which cannot be
assigned.
To which it was replied, that though the statute says that the contract shall be
void, unless the buyer accept part of the goods, or give earnest, or there be some
memorandum in writing; yet it is not necessary that the thing contracted for must,
by this statute, be such as can be delivered into the other party's hands; it is
sufficient that part of the goods be accepted, or that there be earnest, or some
memorandum be in writing; and therefore if the goods cannot: be delivered, if there
be earnest, or a memorandum in writing, it is sufficient. If there be a contract for
goods to be imported in such a ship, shall not the contract be within the statute,
because the goods cannot be delivered till the arrival of the ship?
[358] But if the delivery of the goods is necessary, the assignment is a delivery;
and the declaration says for ten shares vendit' & trauslat'; if an assignment was
made it may be accepted, and till acceptance the transfer is not compleat; and
though it is said, that a chose in action cannot be assigned, yet it does not follow that
it is not of the nature of goods of merchandize.
A chose in action may be assigned by the King. Dy. 30 b. 2 Cro. 82, 179.
2 Rol. 198, or may be attached. 3 Leon. 236. Cro. Eliz. 184, 713. 1 Rol. 553.
1 Sid. 327.
But the Judges being divided in opinion it was adjourned.
(a)' St. 29 Car. 2, c. 3, s. 17.
(1) Holt Chief Justice declared, in the case of Chamberlain v. Harvey, 1 Raym. 147,
that trover would not lie for a negro, and denied the authority of Butts v. Penny,
2 Lev. 201. It was adjudged however in the Common Pleas in the case of Gelly v.
Cleve, that trover would lie for negroes, upon the ground of their being heathens, and
that therefore a man might have property in them. It was said that the Court,
without averment made, would take notice that they are heathens. 1 Ld. Raym
147.
(a)2 3 Keb. 785, S. C. 1 Freem. 452.
(b)' 2 Salk. 666. 2 L. Raym. 1274, S. C. 1 L. Raym. 147. 5 Mod. 187.
(a)s 3 Keb. 451. 1 Freem. 391, S. C. 1 Show. 270.
(b)2 2 Keb. 487, 506, 508, S. C.
CASE 179. THE KING vers. BISHOP OF HEREFORD & Ai'. INTR. HIL. 5 GEO.
ROT. -- . IN C. B.
In quare impedit the bishop pleaded, that he claimed nothing but as Ordinary, and it
was holden bad, for want of alledging notice of the refusal, though in a case where
the Crown presented. 2 Gib. Cod. 807. 1 Burn's E. L. 142.
In a quare impedit for the presentation to the vicarage of Amystry in corn'
Hereford, the bishop pleaded, that the vicarage was within the diocese, and that he
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