William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

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some degree, upon the nature and use of the article to be deliv-
ered. The creditor cannot be permitted to appoint an unreason-
able place, and one so remote from the debtor, that the expense
of the transportation of the articles might exceed the price of
ihem. If the place intended by the parties can be inferred, the
creditor has no right to appoint a different place. But if no place
of performance be designated, and none can be dearly inferred
from collateral circumstances, it seems to have been again ad-
mitted, that the creditor may designate a reasonable place for the
delivery of the articies (a). Mr. Ghipman (b) also states it as a
rule of the common law, well understood and settled in Vermont,
that if a note be given for cattle, grain, or other portable articles,
and no place of payment be designated in the note, the creditor's
place of residence at the time the note is given, is the place of
payment The same rule is declared in New York, when the
time, but not the place of the payment of the portable article is
fixed (c). If the article be not portable, but ponderous and bulky,
then Lord Coke's rule prevails, and the debtor must seek the cred-
itor, or get him to name a place; and if no place, or an unreason-
able one, be named, the debtor may deliver the articles at a place
which circumstances shall show to be suitable and convenient for

the purpose intended, and presumptively in the contem-
[ * 508 ] plation *of the parties when the contract was made (d).

There is a material difference in the reason of the thing,
between a tender of cumbersome goods, and those which are por-
table; and the same removal from one place to another is not
equally required in the two cases («). There is another class of
cases, in which the position is assumed, that if the parties have
not designated any particular place of delivery, it is to be at the
debtor's residence, or where the property was at the time of the
contract; as in the case of a note payable in farm produce, with-

(o) Currier v. Currier, 2 N. IT, Rep, 75.

(6) Eamy on the Law of Oon/racto, for the Pnyment of Specific AHiela,
25, 26.

(c) Goodwin r. Holbrook, 4 WendeiPB Rep. 377.

id) Chipman'8 Essay on the Law of Contracts, for the Fayment of Speeyk
ArtideSy 27.

(e) Stone r. Gilh'ani, 1 Show. Rep. 149.



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oat mentioning time or place, the place of demand and deliveiy
is held to be at the debtor's farm (a). It is likewise adjudged,
that where a person in the character of bailee, promises to deliver
specific goods on demand, though the demand may be made
wherever he may be at the time, his offer to deliver at the place
where the property is, or at his dwelling-house, or place of busi-
ness, will be sufficient (b).^

(a) Lobdell p. Hopkins, 5 Oowen^s Rep. 614. So, also, in Minor v. Michie,
1 Walker^s Miss. R. 24, it was held, that if no time or place be specified in the
contract for the delivery of specific articles, the debtor is' not bound to seek
the creditor, but the latter to entitle himself to sae, most allege and prove a
special demand. This is more reasonable than Lord Coke's rule. The law
relative to the practical execution of contracts for payment in goods or specific
articles, is well expounded in Chipman on Contracls. See, also, Roberts v.
Beatty, 2 Ptnn, R, 65. Cowen, J., 20 Wendell, 199.

(b) Scott V. Crane, 1 Conn. Rep. 255. 5 Ibid. 76. Mason v. BriggB, 16 Mass.
Rep, 453. Slingerland v, Morse, 8 Johns. Rep. 474.

•* If by the terms of the contract the vendee is to name the place of deliv^
ery, the vendor must be ready to deliver at that place. And if the articles
are ready at the proper time to be delivered at such place, the vendor is not
guilty of a breach of contract if the vendee does not name the place. Lucas
V. Nichols, 5 Gray, 309. If nothing is said as to the time, it must be a rea-
sonable time. Gill Manf. Co. v. Hurd, 18 Fed. 673; Cocker v, Franklin Hemp
and Flax Manf. Co., 3 Sumner, 550; Adams v. Adams, 26 Ala. 272; Palmer
V. Breen, 34 Minn. 39. And parol evidence of facts and circumstances is ad-
missible to prove what is a reasonable time. Cocker u. Franklin, &c., ubi
supra; Coates v. Sangston, 5 Md. 121; Ellis v. Thompson, 3 M. & W. 445;
Jones r. Gibbon, 8 Ex. 920. When the contract states the time, the construc-
tion is one of law for the court. Cameron v. Wells, 30 Vt. 633; Attwood v.
Clarke, 2 Greenl. 249.

At common law time is always of the essence of the contract. Allen v.
Cooper, 22 Maine, 133; Warren v. Bean, 6 Wis. 120; O'Donnell v. I.^man,
43 Me. 158; Barrett v. Hard, 23 La. An. 712; Cromwell v. Wilkinson, 18
Ind. 365. When time is fixed for the completion of the contract, the contract
must be completed on the day named, or an action will lie for the breach of
it Weeks v. Little, 89 N. Y. 666; Marshall v. Ferguson, 23 Cal. 65; Han-
son V. Kirtley, 11 Iowa, 565. If time is not really of Uie essence of the con-
tract and the person acted in good faith, he may obtain relief in equity.
Brashier v. Gratz, 6 Wheat. 528; Hi Id v. Linne, 45 Texas, 476; Hill v. Fisher,
34 Me. 143. And il it appears that, though they named a specific day for
the act to be done, that which they really contemplated was only that it
should be done within a reasonable time, then this view will be acted upon;
and a party who according to the letter of the contract, is in default and in-
competent to enforce it will yet be allowed to enforce it in accordance with
what the court considers its true meaning. Brumfield v. Balmer, 7 Blnckf.
227; Thurston r. Arnold, 43 Iowa, 43; Pedrick v. Post, 85 Ind. 255; Ker-
cheval v. Swope, 6 T. B. Monr. 362. If the parties by their contract make
time of the essence of the contract, the time is binding, and may be shown
by parol evidence. Thurston v. Arnold, 43 Iowa, 43; Taylor v. Long worth,
14 Pet. 172; Hicks r. Aylsworth, 13 R. I. 562. The nature of the subject
matter may make time of the essence of the contract. Jones v. U. S., 11 Ct.
of CI. 733; Saltonstall v. Little, 9 Norris, 422; Griffen v. City Bank, 58 Ga.
584. See also Carter v. Phillips, 144 Mass. 100; Bishop v, Lawrence, 2 S. W.
Reptr. 499.

In a recent case where the contract was to deliver between the 1st June
and 1st August at L., and the goods were ready all the time between those



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If the debtor be present in person or by his agent, and makes
a tender bt specific articles at the proper time and place, accord-
ing to contract, and the creditor does not come to receive them,
or refuses to accept them, the better opinion is, that if the article
be properly designated and set apart (and snch designation is
necessary) (a), the debt is thereby discharged (&). If the debtor
be sued, he may plead the tender and refusal, and he will be ex*
cused by the necessity of the case from pleading uncore prist,
and bringing the cumbersome articles into court (c); and it is not
like the case of a tender of money, which the party is bound to

keep good, and on a plea of tender to bring the money
[ * 509 ] into court The creditor *is entitled to the money at all

events, whatever may be the fate of the plea (d) ; and
there is equal reason that he should be entitled to the specific
articles tendered But in Weld v. Hadley (e), it was decided,
after a very able discussion, that on a tender and refusal of spe-
cific articles, the property did •not pass to the creditor. This was
contrary to the doctrine declared in other cases (g) ; and the weight
of argument, if not of authority, and the analogies of the law,
would appear to lead to the conclusion, that on a valid tender
of specific articles, the debtor is not only discharged from his
contract, but the right of property in the articles tendered passes

(a) Wyman v. Winslow, 2 Fairfield, 388.

(b) Co. Litt. 207, a. Peytoe*s case, 9 Co. 79, a. Bro. tit. Touts tempn pnM,
pi. 31. Smith t;. Loomis, 7 Conn. Hep, 110. Garrard v. Zacbariah, 1 Stew-
art^s Ala. Rep. 272. Thaxton v. Edwards, Ibid. 524. Savary v Goe, 3 Wank.
C. C. Rep. 140. Robinson V. Batchelder, 4 N. H. Rep. 46. Lambr. Latbrop,
13 Wendell, 95.

(c) Bro. ub. sup. In Johnson v. Baird« 3 Blacks. Ind. R. 182, in an action
on a promL<)e to pay a certain sum in hats, at a certain time and place, it was
held to be a good defence, that the defendant had the hats ready for delivery
at the time and place, and that no person was present to receive them. But
the plea also contained the uncore prist, and the court said that it was neces-
sary that the plea should state where the articles were, and that they were
either left at the place properly designated, or that they were retained, and
were still ready for delivery. 0orman v. Elder, Jbid. 490. Fleming v. Pot-
ter , 7 Watts, 380, S. P. No demand was held to be necessary in the latter case,
but the defendant must show that he was ready at the time and place.

(d) Le Grew c. CJooke, 1 Bos. ds Full. 332.

eS \N. ff. ^ep.^5.

_, Nicholas r. Whiting, 1 RooVs Rep. 448. Rix v. Strong, 1 Ibid. 55.
Slingerland v. Morse, 8 Johns. Rep. 474.

dates, it was held to be a sufficient delivery, and that the plaintiff was not
bound to tell defendant what day he would deliver, it being the defendant's
duty to be at L. on the last day of July to receive the goods. Bichey v.
Shinkle, 36 Kans. 516.



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to the creditor (a). The debtor may abandon the goods so ten-
dered; bat if he elects to retain possession of the goods, it is in
the character of bailee to the creditor, and at his risk and ex-
pense (6).**

With respect to part performance of an entire contract for the
sale and delivery of personal property of a given quantity, at a
specified price and time, or for the performance of certain labor
and service, a delivery of a less quantity than that agreed on, or a
refusal or omission to perform the entire labor or service, without
any act or consent of the other party, will not entitle the party
who has delivered in part or performed in part, to recover any
compensation for the goods which have been delivered, or the ser-
vice which has been performed. The entire performance is a con-
dition precedent to the payment of the price, and the courts can-
not absolve men from their legal engagements or make contracts
for them (c).

(a) Oode Napoleon, No. 1257. Pothiery TraiU des Ohlig, No. 545. Smith ti.
LoomiSf ftupra, Mitchell v. Merrill, 2 Blackf. Ind. Rep. 87. Lamb v. Lathrop,
13 Wendell 95, In Bailey v, Simonds, 6 K ff. Rep. 159, it was held, that if
a note be payable in goods at a particular place, on demand, the maker must
have the goods always ready at the place. Mason v. Brigg8,-16 Mass. Kvp.
453, S. P.

{b) Mr. Chipman, in the able essay to which I have already referred, sup-
poses that the debtor may sell the goods which he so retains, il they be per-
ishable articles, and he will be accountable for the net proceeds. He has rea-
soned well, and upon sound legal principles, in support of his position, that
on the tender and refusal of specific articles, the debt is discharged on the
one hand, and the title to the property transferred to the creditor on the
other. In Illinois, it is declared by statute that if no place be specified in
the written contract for the payment or delivery of specific articles, the
obligor may tender them at the payee's place of residence. But il the articles
be too ponderous, or the payee has no known place of residence, the obligor
may tender them at his own place of residence. Such tender vests the prop-
erty in the creditor. Revised Laws of Illinois, edit. ISJS. p. 484, 485.

(c) Waddington tj. Oliver, 5 5. <fc Puller, 61. M'Millan v. Vanderlip, 12
Joknwn, 165. Champlin v. Rowley, 13 Wendell, 258. S. C. 18 Wendell, 187,
Mead v. Degolyer, 16 Ih. 632. See, also, supra, p. 258, and Steamboat Co. o.
Wilkins, 8 Vermont R. 54. Helm v. Wilson, 4 3fissouri Rep. 41. The cases
of Oxendale v. Wetherell, 9 B. <& Cress. 380, 401, and Britton v. Turner, 6
New Hampshire, 481, considered the rule as rather stern, and relaxed its
severity, and in Mead v. Degolyer, above mentioned, Mr. Justice Cowen in-
timated that a court of chancery might perhaps feel itself driven to inter-
fere in some of these hard cases, and it was repulsive to Lord Tenterden's
ideas of justice, that if a man ag^reed to deliver 250 bushels of wheat by a
certain day, and fell short but one bushel, the vendee should get the 249 for
nothing. But in Champlin v. Rowley, 18 Wendell, 191, the chancellor re-
pudiated the doctrine of the case of Oxendale v. Wetherell, with much

^ A tender must be unconditional, or at all events fVee from any condi-
tion to which the creditor has a right to object. Thaver r. Brackett, 12
Mass. 450: Wood v. Hitchcock, 20 Wend. 47; BiiiTum v. BuflTom, 11 N. H. 451.



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I have thus endeavoared to mark the prominent and most prao-
tioal distinctions, on the very difPasive snbject of the delivery
requisite to pass the title to goods, or to take the case oat of the
operation of the statute of frauds. But even in this general view
of the subject, it has been difficult to select those leading princi-
ples, which were sufficient to carry us safely through the laby-
rinth of cases, that overwhelm and oppress this branch of the


[ * 510 ] * VIjL Of the memorandum required by the stattite of

The statute of frauds, of 29 Car. 11. ch. 3, sech 4, declared, that
no action should be brought to charge any executor or adminis-
trator, upon any special promise, to answer damages out of his
own estate (a) ; or to charge the defendant upon any special
promise to answer for the debt, default or miscarriage of another
person ; or to charge any person, upon any agreement made upon
consideration of marriage (&), or upon any written agreement that
was not to be performed within one year (c), unless there was
some memorandum or note in writing of the agreement, signed

(a) The New York Revised Siatules^ vol. ii. p. 113, sec. 1, have improved
upon the phraseology of the English statute, by adding, or to pap ike dtbisof
the testator or iniesUate out of his mim estate,

(h) This did not apply to mutual promises to marry. Cook v. Baker Str.
Rep, 34; and in the New York Revised Statutes, vol. ii. p. 135, sec 2, this ex-
ception is expressly made.

(c) The statute only applies to agreements which are, by express stipula-
tion, not to be performed within a year. It does not apply' to cases in which
the performance of the agreement depends upon a contingency which may or
may not happen within the year. Fenton v. Emblers, 3 Burr. Rep. 1278.
Wells 17. Horton, 12 B. Moore^ 177. Moore r. Fox, 10 Johns. Rep. 244. .
M'Lees v. Hale, 10 WendelVs Rep. 426. An inchoate performance within
the year under a parol agreement, is not sufficient to take the case out of the
statute. ^ The statute excepts agreements only that are to be performed, that
is completed within the year. Boydell v. Drummond, 11 Eant^ 142. Birch
V, Earl of Liverpool, 9 C. <t- O. 392. Nor does the statute apply to the case
of goods sold and delivered within the year, but where the price was not to
be paid until after the expiration of the year. Donellan o. Heed, 3 B. ^
Adoiph. 899. Holbrook v. Armstrong, 1 Fairfield:'^ Rep, 31.

* So if the contract be for delivery of specified articles in certain quantities
from time to time, the purchaser may return the first parcel if the others are
not delivered. See Smith v. Lewis, 40 Ind. 98; Roberts v. Beattv, 2 Pa. 63;
Rockford, R. I. & St. L. R. R. Co. v. Lent,63 111. 288; Wright i?. Barnes, 14 Ck)nn.
618; Marland t». Stanwood, 101 Mass. 470. If the purchaser keeps the part
delivered he must pay for it or return it. He cannot accept it and refuse to
pay because the remainder is not delivered. He must pay or return. Wad-
dington v. Oliver, 3 B. & P. R. R. 61; Starr Glass Co. i\ Morev, 108 Maaa.
670; McKnight v, Devlin, 62 N. Y. 399; Wilson v. Wager, 26 Mich. 452.


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by the party to be charged, or his agent/' The statute, in respect
to the memorandam, applied also to contracts for the sale of
goods, wares and merchandise, in cases where there was no de-
livery and acceptance of part, or payment in part, or something
in earnest given. This statute is assumed to be the basis of the
statute laws of the several states on this subject. It has been
frequently re-enacted in New York, and the last revision of the
statute law of the state has not changed its force or construc-
tion (a), and it applies equally to the grant or assignment of any

(«) New York Revised Statutes^ vol. ii. p. 113, sec. 1. Ibid. vol. ii. p. 135,
sec. 2. Ibid, vol. ii. p. 136, sec. 3. Ibid. vol. ii. p., 137, sec. 2. But the
New York statute uses the word subscribed instead of the word signed^ in the
statute of Charles II. The Massachusetts Revised Statutes of 18^^, and the
Revised Laws of Illinois, 1833, and of Indiana, 1838, and of Connecticut, 1838,
and of New Jersey^ 1794, follow closely the words of the English statute of
frauds. But the former contains a provision which puts an end to the ques-
tion which has much agitated and divided the courts of law in England and
this country. (See in/m, vol. iii. p. 121, 122,) The consideration of the
promise need not be expressed in the writing, but may be proved by x)arol.

^ A good consideration, a real consent of the parties to the same thing
in the same manner, and ail other things necessary to make a contract good
at common law are still required as much as before. Scearce v. Gall, 82 Ind.
255; Thomiis u. Delphy, 33 Md. 373; Frame r. August, 88 111. 424. If the
promise made to answer for the debt, <^c., should be a primary one it takes
the case out of the statute. Parker v. Barker, 2 Met. 423; Wakefield v.
Greenwood. 29 Cal. 597; CJonnerat v. Goldsmith, 6 Ga. 14; Aldrich r. Jewell,
12 Vt. 125; Eddy w. Roberts, 17 111. 505; Mease v. Wagner, 1 McCord, 395;
Olive r. Lewis, 45 Miss. 203; Towsley v. Sumrall, 2 Peters, 170. Very nice
questions upon the point as to whether the promise amounts to a guaranty
or an oral promise to pay one*s own debts often arise, but in each case tho
surrounding circumstances must be looked at. Bee I^keman v. Mount
Stephen, L. R. 7 H. L. 17; Daret v. Bates, 51 111. 439; Fitzgerald r. Morris-
sey, 14 Neb. 198; Dow u. Swett, 134 Mass. 140; Milks r. Rich, 80 N. Y. 269.

The statute does not apply to a contract to marry. Espy v. Jones, 37 Ala.
379; Allard v. Smith, 2 Met. fKy.) 279.

As to whether a sale of growing crops is within the statute, see Marshall
V. Ferguson. 23 Cal. 65; Matlock r. Fry, 15 Ind. 48:$; Bryant v. Crosby, 40
Me. 9. See further Benjamin on Sales and Lord Blackburn on Sales (Text
Book Series Ed.).

Agreements wd to beperforined toithin the year, — See Petei-s v, Compton, 1
Smith L. C. * 143. An agreement capable of being performed within the
year, and not showing any intention to put off the performance till after the
year is not within the clause. Smith v, Neale, 2 C. B. N. S. 67. Neither a
** reasonable time '' nor a lawsuit, necessarily extends beyond a year and a
contract bounded by either need not be in writing. Niagara Fire Ins. Co. v.
Green, 77 Ind. 590; Derrick v. Brown, 66 Ala. 162. An agreement to sup-
port during life need not be in writing, for the party may die within the
year. Tenn. Coal Co. v. R. R., 12 Heisk. 650; Doasser v. Id,, 35 Barb. 573;
McCormick v. Drummeth, 9 Neb. 384. Nor an agreement to work for a man
while he lives or an agreement to be performed at the death of one. Frost
V. Tarr, 53 Ind. 390. Nor a promise to pay by bequest for services or any-
thing else. Fen ton v. Emblers, 3 Bnrr. 1278. Nor an agreement to marry.
Paris V, Spring, 51 Ind. 339; Withers v. Richardson, 5 T. B. Monr. 94.



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existing trust in goods and things in action, as well as to lands (a).
The signing of the agreement by one party only is sufficient, pro-
vided it be the party sought to be charged. He is estopped by
his signature from denying that the contract was yalidly exe-
cuted, though the paper be not signed by the other party, who
sues for a performance (6). It is sufficient, likewise, if
[ * 511 ] the note or * memorandum be made by a broker em-
ployed to effect the purchase; and the instrument is lib-
erally construed without a scrupulous regard to forms (c)^ The
signature may be with a lead pencil, according to the practice
in cases of hurried business. The mark of one unable to Write,
or even a printed name, under certain circumstances, is a suffi-
cient signature; and if the name be inserted in such a manner
as to have the effect of authenticating the instrument, it is imma-
terial in what part of it the name be found (d). The con-
tract, must, however, be stated with reasonable certainty, so that
it can be understood from the writing itself, without having re-
course to parol proof (e). Unless the essential terms of the sale
can be ascertained from the writing itself, or by a reference con-
tained in it to something else, the writing is not a compliance
with the statute; and if the agreement be thus defective, it can-

(a) It seems not to be settled in England, whether storkhe comprehended
under the words goodSy wares, and merchandises^ in the 17th section of the
Btatute. Pickering r. Appleby, Comyn^s Rep. 354. Mussel 1 v. Cooke, Pree.
in Ch. 533. 2 P. Wms, 307. See supra, 494, note. Treasury checks held
not to bo included in the words. Beers v. Crowell, Dudley's Gen. R. 28. Bat
in Massachusetts it is held, that a contract for the sale of manafacturing
stock is within the statute of frauds. Tisdale v. Harris, 20 Pick, 9.

(6) Allen r. Bennet, 3 Taunt. Rep. 169. Lord Manners, in 2 Ball d& Beatiy,
370. Sir William Grant, in 3 Ves. & Beames, 192. Sir Thomas Plumer, in
2 Jac. & Walk. 426. Flight v. Bolland, 4 RusselPs Rep. 428. Ballard v.
Walker, 3 Johns. Cos. 60. Seton v. Slade, 7 Vesey, 265. Clason r. Bailey, 14
Johns, Rep, 487. Douglas v. Spears, 2 Nott A M^Cord, 207. Palmer v. Scott,
1 Russell & Mylne, 391.

(c) Goon t'. Adalo, 6 Bamw. & Cress. 117.

(d) Stokes r. Moor, 1 Cox's Rep. 219. Selby v. Selby, 3 Merivale's Rep. 2.
Ogilvie r. Foijambe, 3 Ibid, 53. Knight v. Cuckford, 1 Esp. N. P. C. 190.
Baunderson v. Jackson, 2 Bos. <fc Pull, 238. Schneider v. MorrU, 2 ilfau/e <fe
Sclw. 286. Clason v. Bailey, 14 Johns. Rep. 484. Thornton v, Kempster, 5
Taunt Rep. 786. Penniman v. Hartshorn, 13 3fass, Rep. 87.

(e) Bailey & Bogart v. Ogdens, 3 Johns. Rep. 399. Champion r. Plummer,
4 Bos. <& Pull. 252. Elmore v. Kingscote, 5 Bamw. <& Cress. 5a3. If a bill
of parcels be delivered to, and accepted by the purchaser, with his name in
it, from the commission merchant, it is a sufficient nieinorandum of the sale
of the goods within the statute oi frauds. Bntturs v. Sellers, 5 ffarr. <& Johns.
117. But a written agreement may be waived, and the terras of it >'aried by
a subsequent parol agreement, for that becomes a new subsequent contract.
Thomas v. Currie, Breivrd^s M. S. Rei).^ cited in Riee^'s Dig. tit. Agreement,
sec 117. Neil r. Cheves, 1 Bail. S. C. Rep. 537.



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not be enpplied by parol proof, for that would at once introdace
all the mischiefs which the' statute of frauds and perjuries was
intended to prevent (a)."

{a) Parkhuret v. Van Cortlandt, 1 Johns, Ch. Rep. 280, 281. Abeel v. Riid-
cliff, 13 Johns. Rep. 297. Vide Supra, p. 498. It was held, in the cases of
Towers v. Osborne, Str. Rep, 506, and Clayton o. Andrews, 4 Burr. Rep. 2101,
that a contract for the sale of goods, to be (hereafter produced hy work and
labour, was not within the statute of frauds, which only related to sales
where the delivery was to be immediate, and the buyer immediately answer-
able. In the one case, the cx)ach was to be afterwards made, and in the other,
the wheat was to be thrashed; and as the article contracted to be sold was
to be first manufactured, oi labour bestowed upon it, the contract might be
deemed to be one for work and labour in making or preparing an article for
delivery. These cases have been since somewhat questioned, and the latter
went quite far with its distinction. It seems now to be settled, that the stat-
ute of Tmuds extends to executory as well as to executed contracts; and that

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 86 of 108)